Press Conference: The All Party Parliamentary Group is publishing its proposals on a new law to criminalise extraordinary rendition through UK territory

November 5, 2009

The All Party Parliamentary Group (APPG) on Extraordinary Rendition will hold a press conference in Parliament on Thursday 5 November 2009

 At 3pm, in Room C, 1 Parliament Street with Paul Lomas of Freshfields and Clive Stafford Smith of Reprieve.

The APPG is publishing its proposals on a new law to criminalise extraordinary rendition through UK territory. They will close the gap in English law that has allowed the use of UK territory for the purposes of extraordinary rendition in the past.

In February 2008, the APPG sought the assistance of Freshfields Bruckhaus Deringer to examine whether changes to the law were needed to prevent UK involvement in extraordinary rendition. The conclusion of the APPG and Freshfields’ joint work is that English law is currently inadequate to meet the challenges of rendition and that the law could be strengthened.

The APPG recommends criminalising various acts, including (a) using British facilities for extraordinary rendition flights and (b) the failure of controllers of transport facilities to prevent extraordinary rendition flights using those facilities. The proposal will also ban so-called ‘circuit flights.’

On-going cases will determine whether the current law deals adequately with the involvement of British officials in interrogating suspects (such as Binyam Mohamed) who have been rendered or tortured. This is not covered by the proposal. The APPG will keep under review a possible need to supplement the law in this regard.

Andrew Tyrie, Chairman of the APPG, said:

“I call on the government to examine and respond to these proposals. They should bring forward legislation to implement them as soon as possible unless they can provide good reasons for not doing. English law has been insufficient to prevent UK involvement in extraordinary rendition. These proposals will buttress existing law. If implemented they will give the public greater confidence that Britain is not complicit in extraordinary rendition. They would criminalise, for the first time, the use of UK transport facilities for extraordinary rendition flights, including so-called ‘circuit flights’. Failure to prevent the use of UK transport facilities for extraordinary rendition flights would also be illegal. Strengthening the law in this way would enable the UK to take the lead internationally in providing a more effective prohibition against extraordinary rendition.”

Paul Lomas, partner at Freshfields Bruckhaus Deringer, and an author of the legislative proposals, commented: “Involvement in rendition breaches the UK’s international obligations. A focussed law will make prosecutions easier, deter the activity and show the UK as setting high standards internationally in this area.”

Reprieve’s director Cive Stafford Smith said: “Recent events have shown that our law is not effective to prohibit the evils of rendition. If the government is serious about its criticisms of this lawless activity it should consider the APPG proposals immediately.”

For more information please contact the Office of Andrew Tyrie MP at 0207 219 6371

-ENDS-

Notes to Editors:

Proposals to Criminalise Extraordinary Rendition

Summary

After extensive consultation, the All Party Parliamentary Group on Extraordinary Rendition has concluded that the existing law needs to be bolstered sufficiently to ensure that British airspace and airports are not being used for extraordinary rendition.

Recent disclosures of UK involvement, the two acknowledged rendition flights through Diego Garcia, and further allegations surrounding the use of British airspace and airports for rendition flights, demonstrate that the current legal framework does not deter the use of UK territory for the purposes of rendition.

A new specific prohibition is required. The APPG provided an analysis and a solution, including draft legislation, following consultation with Freshfields Bruckhaus Deringer LLP.

The attached consultation document is the result. It has also benefited from extensive expert consultation with other experts in the field. The APPG would particularly like to thank Lord Carlile QC, William Clegg QC, Professor James Crawford SC, Tom Hickman, Lord Hodgson, Professor Vaughan Lowe QC, Chris Mullin MP, Mark Pallis, Clive Stafford Smith, Bankim Thanki QC, Stuart Wheeler, BAA and the Civil Aviation Authority.

The proposal is that henceforth the following will become criminal:

1. the use of UK transport facilities for extraordinary rendition of any type;

2. facilitating extraordinary rendition using UK transport facilities;

3. ‘circuit flights’ using UK transport facilities (flights passing through the UK to enable a rendition but without a detainee onboard at the time);

4. failure by controllers of transport facilities in the UK to prevent the use of those facilities for the purposes of extraordinary rendition.

This will require primary legislation. I will be inviting a response to this proposal from the Government.

Background

Extraordinary rendition is the apprehension and transfer of persons from one jurisdiction to another outside due process of law, where there is a risk that such persons will be exposed to torture or inhuman or degrading treatment.

Both Secretary of State Condoleezza Rice and President Bush have acknowledged that the former US Administration carried out renditions as a matter of policy. Such transfers have taken place to CIA black sites, military detention centres such as Guantanamo Bay, and to countries known to torture their detainees, including Syria and Morocco.

The UK has been implicated in this programme. In February 2008, the Foreign Secretary confirmed that, despite repeated and express US assurances to the contrary, two rendition flights with detainees onboard refuelled at the British island of Diego Garcia.

In August 2008, the High Court ruled that the UK had ‘facilitated’ the incommunicado interrogation of British resident Binyam Mohamed, and that its involvement ‘was far beyond that of a bystander or witness to the alleged wrongdoing’.

In February 2009, the Defence Secretary confirmed that, contrary to previous assurances, two detainees captured by UK Forces in Iraq and transferred to US forces had been rendered to Afghanistan.

The admissions come after a number of strong assurances that the UK was not involved. For example, on 13 December 2005 the then Foreign Secretary Rt Hon Jack Straw MP said: “Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States, and also let me say, we believe that Secretary Rice is lying, there simply is no truth in the claims that the United Kingdom has been involved in rendition”.

The All Party Parliamentary Group on Extraordinary Rendition has been investigating rendition, and British involvement in it, since its creation in December 2005. Andrew Tyrie has been asking Parliamentary Questions about rendition and related issues since 2004. The Group publishes all information obtained on its website, www.extraordinaryrendition.org.

The Case for Change in More Detail

Failure of Existing Law

The failure of existing law and policy on rendition is reflected in the two rendition flights through Diego Garcia, the lack of adequate investigation or criminal charges, and the use of British airspace for rendition ‘circuit flights’, documented by the Council of Europe and others. Further allegations of British involvement have been made. The steps taken by the Government to investigate these allegations have been inadequate.[1]

The Government has described the existing measures applicable to the granting of permission to rendition flights in the following terms: ‘We would expect the US authorities to seek permission to render detainees via UK territory and airspace, including overseas territories, and we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations’. Clearly, this system has failed.

Current domestic law fails to provide for the effective criminalisation, and hence deterrence, of extraordinary rendition flights. While some elements of extraordinary rendition, for example, kidnap and torture, are already criminalised in English law, rendition itself is not addressed by the current law. No criminal charges have so far been brought in the UK against anyone for involvement in renditions.

US intelligence personnel that have committed offences cannot, in practice, be questioned or apprehended, and the law on aiding and abetting such crimes is too uncertain and too rarely applied.

English criminal law does not, currently, specifically address corporate liability in the area of rendition, or effectively penalise the ‘turning of a blind corporate eye’ to rendition activity.

The clandestine nature of rendition means it is currently difficult to establish either the necessary acts, or the necessary mental state, to prosecute people in the UK for their involvement in those elements of rendition flights which are currently criminalised under English law.

International law clearly requires the effective prevention of extraordinary rendition.

The UK is obliged to prevent torture (and inhuman and degrading treatment) and also to prevent individuals being transported by a third party to a state in which there will be a real risk that the individual will be exposed to torture or inhuman or degrading treatment.

Benefits of the APPG’s Proposal

By establishing a specific criminal offence that focuses on rendition flights themselves, the APPG’s proposal addresses, for the first time, the specific conduct that constitutes UK involvement in extraordinary rendition.

This proposal therefore provides a proper deterrent for participation in extraordinary rendition. Extraordinary rendition flights that use UK airports or other transport facilities will simply be criminal under English law.

By prohibiting the facilitation of extraordinary rendition and ‘rendition circuit’ flights, the proposal criminalises assistance provided by people in the UK to all rendition flights, including those without detainees onboard.

This establishes that the UK cannot be involved in any way in extraordinary renditions. Allegations that many ‘circuit flights’ have used UK airspace, and the Government’s refusal to investigate these allegations, despite the Foreign Affairs Committee’s ruling that it has a legal obligation to prevent such flights, makes criminalising all extraordinary rendition flights, with or without a detainee onboard, essential.

Holding those who manage or control transport facilities responsible for ensuring that their transport facilities are not used for renditions provides a more practical bar to extraordinary rendition than the current domestic legal framework. A proper ‘safe harbour’ defence will ensure that controllers who take reasonable steps to prevent involvement in rendition operations will not be criminalised.

The proposal will ensure that the UK is in compliance with international law obligations in relation to rendition. These obligations derive from, in particular, the Torture Convention and the Chicago Convention, which deals with international aviation law. It will also ensure that English law is compliant with the Disappearance Convention in the event that the UK decides to ratify this treaty.

This proposal does not seek to address other aspects of UK involvement in extraordinary rendition, for example, the sharing of intelligence or the involvement of UK Forces. These are important matters but raise wider political and legal issues

. By limiting its focus, the APPG’s proposal provides a realistic option for early reform that avoids the jurisdictional and definitional difficulties inherent in legislating against such acts. This proposal prohibits all involvement in extraordinary rendition flights, and is a significant and crucial first step on the road to prohibiting all elements of UK involvement in extraordinary rendition, and ensuring that the UK cannot become involved in extraordinary renditions in the future.

Introduction of the Proposal to Parliament

This proposal will form the basis of a public consultation over the next two months. The Government will be specifically asked to respond to the proposal during the consultation period. Once the responses to this consultation have been collated and analysed, appropriate changes will be made to the proposal. The final proposal for legislative reform will then be presented to the Government for introduction to Parliament at the earliest possible opportunity.

No country has as yet established a clear specific prohibition on extraordinary rendition per se. There is an opportunity for the UK to take the lead in crystallising an effective prohibition against extraordinary rendition. This proposal will act as a beacon to those in other jurisdictions seeking to ensure that their countries are not involved in renditions in the future.

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Andrew Tyrie is Conservative MP for Chichester and Chairman and founder of the All Party Parliamentary Group on Extraordinary Rendition. Mr Tyrie can be contacted on 0207 219 6371. His office email is bennetter@parliament.uk. The website of the All Party Group is www.extraordinaryrendition.org.

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