Practice Relating to Rule 99. Deprivation of Liberty
Section B. Deprivation of liberty in accordance with legal procedures
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Measures to transfer detainees (“rendition” and “extraordinary rendition”) and the prohibition on refoulement
The United States defines “rendition” as the transfer of a person into another State. This comprises both the transfer of persons into the United States (from another State, with the consent of that State) and the transfer from the United States into another State (for example for the purpose of interrogation). The latter is sometimes referred to in the United States as “extraordinary rendition”. “Rendition” and “extraordinary rendition” can also be insofar combined as a person is transferred from a State other than the United States, not into the United States but directly into a third State.
Such “renditions” apparently do not follow the rules on international legal assistance in criminal law matters …
As regards the assessment of the US “rendition” practice under international law, aspects relating to the possible violation of State sovereignty and aspects relating to the possible violation of the human rights of the persons concerned must be distinguished.
If a State consents to the transfer of persons from its territory to another State, State sovereignty is not infringed …
To be separated from this is the question whether and to what extent this form of “rendition” violates individual human rights. The case law of the Strasbourg bodies indicates that the rendition as such is not a violation of individual human rights by the State into which the person was transferred.
It needs to be underlined that the cases decided by the Strasbourg bodies concerned the transfer of persons from a State not party to the ECHR [1950 European Convention on Human Rights] into a State party to the ECHR, and (necessarily) proceedings only against the State party. A “rendition” by a State party to the ECHR outside the formal procedures of extradition/legal assistance provided for this could probably not be reconciled with Article 5 ECHR (right to liberty and security) and would – at least in Germany – also violate domestically applicable law. As regards Germany, formal procedures must be adhered to, and have been adhered to in the past.
The transfer of persons into other States, for example for the purpose of interrogation, is to be rejected for reasons of international law if it is intended to curtail the possibilities of legal protection guaranteed under international law. In any event prohibited under international law is such an “extraordinary rendition” which violates the imperative of “non-refoulement”, or, respectively, the absolute prohibition on torture.
[emphasis in original]