Rendition, Extraterritorial Abduction, and Extraordinary Rendition

by

John A. E. Vervaele

• LAST REVIEWED: 25 October 2018
• LAST MODIFIED: 25 October 2018
• DOI: 10.1093/obo/9780199796953-0171

Introduction

In order to transfer a suspect from a foreign state to the state requesting him or her for criminal adjudication the normal procedure is extradition, based on bilateral and multilateral extradition treaties. Extradition is thus a bilateral act of mutual legal assistance between a requesting and a requested state with the aim of securing the suspect’s presence at trial. The advantage of the extradition treaties is that they are based on reciprocity and contain a duty to cooperate. They also contain mandatory and optional refusal grounds. Extradition is available for serious offenses, including terrorism, and is often based on a double criminality clause; this means that the conduct must be a criminal offense in both states. In the past it was quite common practice that states refused extradition by considering them as political offences, which were exempted under the refusal grounds from a duty to extradite. However, in the last decades international conventions have clearly stipulated that terrorist offenses cannot be qualified as political offenses anymore. Although extradition is thus available for terrorist offenses, states have been resorting to unilateral action to apprehend the suspect, be it be through forcible abduction in another jurisdiction (rendition) or forcible abduction in another jurisdiction and transfer to a third state (extraordinary rendition). The extraordinary rendition refers mainly to the secret US program that was established after 9/11, although it was occasionally applied before 9/11. Extraordinary rendition is not only problematic from the point of view of US law, but also from the perspective of international public law, mainly international human rights law and international humanitarian law. Several European states have been severely condemned by the European Court of Human Rights for their cooperation with the United States in extraordinary rendition cases.

From Extradition to Rendition

If it is impossible to bring the suspect to stand trial by the normal extradition procedure, rendition to justice is an alternative. Rendition to justice is a technique by which a suspected person is forcibly abducted in another state, but this can only take place when there is an outstanding arrest warrant for the person in question and when criminal adjudication in the abducting state is the ultimate aim. The forcible abduction can be executed unilaterally by agents of the forum state or with the cooperation of agents of the state where the person is abducted. The rendition to justice policy is, as a rule, based on statutory domestic law and once in the forum country the abducted person is submitted to ordinary criminal justice, just as any other detainee awaiting trial. The abduction of Adolf Eichmann by Mossad in Argentina in 1960 for his rendition to justice in Israel was certainly one of the first and most famous cases. Based on the classified National Security Decision Directive 207, President Ronald Reagan authorized several renditions to justice in the United States for suspects to face criminal charges, but only from locations where the US government could not secure custody through extradition procedures. Nadelmann 1993 provides the first in-depth analyses of the evolution of US involvement in the rendition of criminal fugitives to and from foreign countries. Although an abduction in a foreign sovereign country with the aim of rendition to justice is illegal under international law, the US Supreme Court upheld the government’s authority to prosecute abducted persons irrespective of their legality under international law and it also precluded the application of US Constitutional standards to agents of the United States acting outside US territory (the Kerr-Frisbie/Alvarez-Machain doctrine). Stark 1993 argues that the Supreme Court’s decision in Alvarez-Machain has created a new doctrine of international due process, by which a trial court is not divested of jurisdiction to hear a case even when established general principles of international law have been violated when bringing the accused before the courts.

• Nadelmann, E. “The Evolution of United States Involvement in the International Rendition of Fugitive Criminals.” New York University Journal of International Law and Policy 25 (1993): 813–885.

  This article contains a very thorough review of the US extradition scheme and, in the absence of an extradition treaty, of the wide array of other sorts of rendition tactics. The author demonstrates that the constraints on international fugitive rendition are primarily political and practical in nature, not legal. The principal legal constraints involve foreign rather than domestic laws. The principal legal intrusions on the international rendition process do not affect the collection of fugitives but rather their delivery.

• Stark, R. “The Ker-Frisbie-Alvarez Doctrine: International Law, Due Process, and United States Sponsored Kidnapping of Foreign Nationals Abroad.” Connecticut Journal of International Law 9.1 (1993): 113–163.

  The author discusses the consequences of the Kerr-Frisbie-Alvarez doctrine, which holds that in the absence of a specific treaty provision expressly prohibiting the forcible kidnapping of foreign nationals from the sovereign territory of their home state, the United States may violate international law and abduct the said persons in order to convey them into the jurisdiction of its domestic courts to be tried for crimes allegedly committed against the United States.