Case Western Reserve Journal of International Law Volume: 37 Issue: 2 & 3 Dated: 2006 Pages: 309-342
This article examines the United States practice of extraordinary rendition during its war on terrorism.
The main argument is that the U.S. practice of extraordinary rendition in its war on terrorism is not permissible under existing international law. Extraordinary rendition is the process of transferring detainees abroad for detention and interrogation either from the U.S. or on behalf of the U.S. While the numbers of detained individuals who have been extradited during the war on terrorism remains relatively low, the covert nature of the transfers and the allegations of prisoner abuse raise questions about the legality of the U.S. rendition program. The consequences of the illicit rendition program are explored, which include prisoner abuse and the erosion of U.S. standing in the international community. The U.S. is encouraged to pursue its enemies without sacrificing its principles and ideals. While some human rights scholars have argued that extraordinary measures may be necessary to win the war on terrorism, the author argues that the U.S. policy of covert rendition has hurt the ability of the U.S. to gain allies for its war on terrorism. The author analyzes the March 2004 “torture memoranda” drafted by the U.S. Department of Justice Office of Legal Counsel (OLC), which argues that Article 49 of the Fourth Geneva Convention permits the deportation and transfer of both aliens and Iraqis out of the occupied zone. The memoranda, it is argued, has little to no acceptance in international law and practice. Indeed, the author contends that the U.S. rendition plan is reminiscent of Nazi operations that occurred during World War II. While the U.S. has a duty to protect its citizens from terrorism, reinterpreting international human rights laws will not further its goal in this respect. Moreover, it is an ineffective strategy because it overwhelmingly targets Muslims and Arabs at a time when relations with the Muslim world are at an all-time low. Footnotes
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