Extraordinary Rendition and the Humanitarian Law of War and Occupation

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.

Keywords: 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

JEL Classification: N40, N44, O15