When 'Extraordinary' Means Illegal: International law and the European Reactions to the United States Rendition Program

Abstract

The article deals with the legality of the so-called “Extraordinary Rendition Program” (ERP). The ERP consists of the systematic kidnapping of people suspected of having acted or being involved in terrorist plans. According to the U.S. Secretary of State, Condoleezza Rice, ERP actions “save lives” and are justified under international law. Moreover, come scholars and officers of the Bush Administration have argued so far that ERP is legal, because its actions are carried out with the assistance and consent of the States concerned. Such a kidnapping is called “abduction” under international law, and entails violations of sovereignty, human rights and international criminal law. Moreover, since the ERP results in a transfer of the kidnapped person to a country in which he is tortured, a violation of the international law norms concerning torture occurs. I breafly face the legal framework and justifications for the expansions of CIA powers, that is a preliminary issue with regard to the ERP itself. In this article, I argue that the ERP is patently illegal. I take two points of view. In the first part of the article (especially par. 3), I deepen the issues concerning the ban on torture, progressively criticizing the ERP supporters’ claims that ERP could entail room for legality, even when, in the prospect of a quick expulsion of dangerous individuals, the expelling State is facing conflicting obligations under international law. In the second part, I take the point that the European reactions to the ERP – namely: the judicial ascertainments of CIA agents’ criminal responsibilities; the national parliamentary commissions of inquiry; the European Parliament Committee report and the Council of Europe Parliamentary Assembly efforts to declare that ERP violates international law, human rights and jus cogens – could undermine the relations between European countries who participate in the ERP and the United States. Is actually the price paid for kidnapping innocent people worthy for fighting efficiently and effectively against terrorism? In dealing with this question, I basically argue that the ERP negatively affects overseas relations.