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Abstract:
The Geneva Conventions of 1949 were drafted in the wake of the Second World War to protect combatants and civilians during times of war and occupation. Half a century later, nearly every country has ratified the conventions; many provisions are recognized as customary international humanitarian law. Since September 11, 2001, there has been a heated debate over whether these laws of war apply to the conflicts with al Qaeda. Yet little attention has been devoted to the humanitarian law of occupation as it applies to the conflicts in Afghanistan and Iraq. This Article examines the practice of extraordinary rendition - abduction and transfer of terror suspects to third countries for detention and interrogation - within the context of those conflicts. The authors show that because Article 49 of the Fourth Geneva Convention prohibits forcible transfer of protected civilians from occupied territory, extraordinary renditions from occupied Afghanistan and Iraq are grave breaches of the Geneva Conventions. The authors then examine the contrary arguments presented in a Bush Administration memorandum, and apply traditional tools of treaty interpretation to refute each argument and to demonstrate that the prohibition against forcible transfer is absolute. Finally, the authors propose several mechanisms to challenge the practice of extraordinary rendition under international humanitarian law and U.S. law.

extraordinary rendition, rendition, geneva, pow, war on terror, international criminal court, universal jurisdiction, article 49, article 3, protected person, POW Convention, Civilian Convention, Fourth Geneva Convention, Third Geneva Convention, enemy combatant, unlawful combatant, torture

Abstract:
Extraordinary Rendition and the Convention Against Torture examines the U.S. policy of abducting terror suspects abroad and transferring them to third countries where they are likely to be subjected to torture and other forms of ill-treatment. The article notes that extraordinary rendition has evolved from a process by which persons were brought to the U.S. to stand trial, into a means of incapacitating suspects while keeping them out of reach of the U.S. legal system. Part I of this Article describes the Convention Against Torture and its provisions, and then examines the scope of the prohibition on torture under U.S. law. Then Part I demonstrates that extraordinary rendition constitutes a criminal conspiracy to commit torture in violation of federal law and the Convention Against Torture. Part I also addresses the policy justifications for extraordinary rendition and the use of diplomatic assurances to evade criminal liability under the torture statute. Part II examines the domestic and international mechanisms available to address extraordinary rendition, primarily focusing on the use of habeas corpus under U.S. law to challenge extraordinary rendition. The Conclusion addresses the legal climate that led to justifications for extraordinary rendition, and the unintended consequences of the policy for U.S. officials and the global community.

extraordinary rendition, rendition, torture, convention against torture, habeas, conspiracy, human rights, diplomatic assurances, terrorism, terrorists

Abstract:
This article describes extraordinary rendition, the practice of seizing terror suspects and transporting them to third countries for detention and interrogation. The article examines this practice in light of several human rights instruments and demonstrates that extraordinary rendition violates international human rights and humanitarian law. The article is the first in a series of three articles by the co-authors to explore the practice of extraordinary rendition.

extraordinary rendition, human rights, humanitarian law, war on terror, torture, interrogation, enemy combatant