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Florida Journal of International Law

Jillian Button

Abstract

This Article explores the difficulties of invoking state responsibility for the commission of a wrongful act in breach of international human rights law, by examining the legal issues raised by the U.S. “extraordinary rendition” program. Extraordinary rendition usually involves the seizure of a terror suspect in a foreign state, from which the person is ‘spirited away” to a state sponsor of torture, to be subjected to brutal interrogation techniques by the security apparatus of that state. It constitutes a clear breach of non-refoulement provisions contained in several international treaties, as well a breach of the non-derogable jus cogens and erga omnes prohibition of torture under customary international law. Although the acts of torture are undertaken by the receiving state, the act of rendering a suspect to torture, conducted by a special unit of the Central Intelligence Agency (CIA), is attributable to the United States. The receipt of “diplomatic assurances” that rendered persons will not be tortured in their destination state—in the light of clear evidence that torture does occur—does not obviate responsibility; nor do the doctrines of necessity and self-defense. Despite the clarity of the breach, several obstacles prevent states or individuals from holding the United States responsible. Procedural constraints, especially standing, pose difficulties in the extraordinary rendition context. The author also comments that a lack of political will has prevented her home country of Australia from taking action as an “injured state.” This Article concludes that the secondary rules contained in the International Law Commission’s Articles on State Responsibility (ILC Articles) have not yet “connected” with the primary obligations of human rights, with worrying connotations in a future where states will have greater opportunities to obfuscate responsibility for international wrongs engaging in proxy human rights breaches.

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