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Tuesday. July 24, 2007 12:00 PM

l'---:"---=---:-~==-----:------:-:--:-~~~~I

B3

Subject: PRESIDENT SIGNS EO INTEPRETlNG COMMON ARTICLE 3 AND SE1TING RULES FOR CIA
DETENTION PROGRAM
ClB8alflcatlon: UNClASSIFIED

(U)FYI.

B3

o 21OO36Z JUL 07
FM SECSTATE WASHOC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
AMEMBASSY TRIPOU
.
UNCLAS STATE 101546
E.O. 12958: NIA
TAGS: KISt. KPAO. PGOV, PREL. MOPS, PTER. !<AWC,
PHUM
SUBJECT: PRESIPENT SIGNS cxeCtJTNE ORDER
INTEPRETING COMMON ARTICLE 3 AND SETTING RULES FOR
CIA DETENTION PROGRAM
REF: 2006 STATE 164628
1. (U) SUMMARY. ON JULY 20, THE PReSIDENT SIGNED AN EXECUTIVE
OROER THAT (1) INTERPRETS FOR THE PURPOSES OF U.S.LAWANO THE
SATISFACTION OF U.S. TREATY OBUGATIONS, THE MEANING AND
.
APPLrCAnON OF COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS, AN
ARTiCLE THAT REQUIRES HUMANE TREATMENT OF DETAINEES; AND (2)
PROVIDES CLEAR RULES FOR THE APPLlCAnON OF COMMON ARTICLE 3 TO
THE CIA'S DETENTION AND INTERROGATION PROGRAM. THE ORDER
COMPUES FULLY WITH tNTERNATIONAl LAW AND CREATES A SOUND LEGAL
FRAMEWORK FOR THE TREATMENT OF DETAINEES ElY THE CIA IN THE
CONFliCT WITH AL QAEDA. THE ORDER IS AVAILABLE AT
WNVV. WHITEHOUSE.GOVINEWSIRELEASESI2007/07120070720-4. HTMl. IFASKED POINTS ARE IN PARA. 6. QS AND AS ARE IN PARA. 6. END
SUMMARY.
.
2. (U) IN 2006, THE SUPREME COURT HELD THAT COMMON ARTICLE 3 OF
THE GENEVA CONVENTIONS. WHICH REQUIRES HUMANE TREATMENT Of
DETAINEES DURING ARMEO CONFLICT AND PROHIBITS SPECIFIC ACTS OF
MISTREATMENT. APPLIES TO THE U.S. ARMED CONFLICT WliH At QAEDA.
FOLLOWING THAT DECISION, CONGRESS ENACTED THE MILITARY
COMMISSIONS ACT (MCA). WHICH INTERPRETED AND CRIMINALIZED THE
MOST SERIOUS VIOLATIONS OF COMMON ARTfCLE 3; PROHIBITED CRUEt,

2/19/2009
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE 10: 22 JUN 2009 200902196

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INHUMAN. AND DEGRADING TREATMENT OF DETAINEES; AND INVITED THE
PRESIDENT TO PROMULGATE INTERPRETAllONS OF OTHER PROVlSIONS OF
THE GENeVA CONVENTIONS, INCLUDING COMMON ARTICLE 3 (SEE REF).
CERTAIN TERMS IN COMMON ARTICLE 3, INCLUOING ITS PROHIBITION ON
"OUTRAGES UPON PERSONAL DIGNITY. IN PARTICULAR, HUMILIATING AND
OEGRADING TReATMENT,· WHICH WAS NOT INCLUDED IN THE MCA. HAVE
BEEN CONSIDERED VAGUE.
3, (U) WHEN HE SIGNED THE MCA INTO LAW IN 2006, THE PRESIDENT
STATED THAT HE WAS CONFIDENT THAT THE MeA ENABLED A CIA
DETENTION AND INTERROGATION PROGRAM TO GO FORWARD, CONSISTENT
'MTH APPLICABLE LAW ON HUMANE TREATMENT OF DETAINEES. IN THIS
ORDER. THE PRESIDENT PROVIDES AN AUTHORITATIVE INTERPRETATION OF
THE PROVIsIONS OF COMMON ARllClE 3 RELATED TO DETENTION AND
INTERROGATION AND APPLIES THAT INTERPRETATION TO THE CtA
DETENTION AND INTERROGATION PROGRAM. IN PARTICULAR, THE ORDER
CLARIFlES,THE MEANING OF 'OUTRAGES UPON PERSONAl DIGNITY. IN
PARTICULAR. HUMILIATING AND DEGRADING TREATMENr BY EXPRESSLY
FORB1DDING "'WILLFUL AND OUTRAGEOUS ACTS OF PERSONAL ABUSE DONE
FOR THE PURPOSE OF HUMILIATING OR DEGRADING THE INDMDUAL IN A
MANNER SO SERIOUS THAT ANY REASONABLE PERSON, CONSIDERING THE
CIRCUMSTANCES, WOULD DEEM l'ME ACTS BEVOND THE BOUNDS OF HUMAN
DECENCY," INCLUDING SEXUAL A8USE AND USING DETAINEES AS HUMAN
SHIELDS. THIS STANDARD IS DRAWN FROM DECISIONS OF THE
INTERNATIONAL CRIMINAL TRIBUNAl. FOR THE FORMER YUGOSLAVIA.
4, (U) IN ADDITION TO THE PROHIBITION ON THOSE "WILLFUL AND
OUTRAGEOUS ACTS OF PERSONAL ABUSE" DESCRIBED ABOVE, THIS ORDER
CONTAINS A lIST OF PROVISIONS WITH WHICH THE CIA PROGRAM MUST
COMPLY TO BE CONSiSTENT WITH COMMON ARTICLE 3. THIS INCLUDES
REQUIREMENTS THAT THE DETAINEES NOT BE SUBJECT TO TORTURE:
CRUEL. INHUMAN. OR DEGRADING TREATMENT; OR ANY OFFENSE COVERED
BY THE WAR CRIMES ACT. THE ORDER FORBIDS ACTS INTENDED TO
DENIGRATE THE RELIGION OR RELIGIOUS PRACTICES OF THE DETAINEE.
AND REQUIRES THAT THE CIA PROV'DE DETAINEES ADEQUATE fOOD,
W~TER, SHELTER, NECESSARY CLOTHING, PROTECTION FROM EXTReMES OF
HEAT AND COLD, AND MEDICAL CARE. THE CIA IS AUTHORIZED TO
DETAIN ONLY THOSE MEMBERS OR SUPPORTERS OF AL QAeoA AND
ASSOCIATED ORGANIZATIONS THAT THE CIA DIRECTOR CONCLUDES ARE
UKELY TO HAVE INFORMATION THAT COULD ASSIST IN DETeCTING,
MITIGATING, OR PREVENTING TERRORIST ATrACKS OR LOCATING THE
SENIOR LEADERSHIP OF AL QAEDA.
5. (U) BEGIN IF-ASKED PRESS POINTS.
·THE PRESIDENT 'SSUED AN EXECUTIVE OROER ON JULY 20 IN OROER TO
PROVIDE AN AUTHORITATIVE INTERPRETATION UNDER U.S. LAW OF COMMON
ARTICLE 3 OF THE GENEVA CONVENTIONS AS APPLIED TO CERTAIN
DETENTIONS AND INTERROGATIONS•
..Of MOST SIGNIFICANCE, THE ORDER DEFINES IN MORE EXPLICIT DETAIL
SOME OF THE: MORE VAGUE TERMS OF COMMON ARTlCLE 3, DRAWING ON AND
COMPLYING WITH INTERNATIONALLY-ACCePTED STANDARDS FOR THE
TREATMENT OF DETAINEES IN WAR. THESE STANDARDS DRAW IN PART FROM
DECISIONS OF THE INTERNATlONAl CRIMINAL TRIBUNAl FO~ THE FORMER
YUGOSLAVIA.
-SPEC'FICALL.Y. THE ORDER DEFINes "OUTRAGES UPON PERSONAL
DIGNITY" TO MEAN A PROHIBmON ON "VVILLFUL AND OUTRAGEOUS ACTS
OF PERSONAL ABUSE DONE FOR THE PURPOSE OF HUM1LlAnNG OR
DEGRADING THE INDIVIDUAL IN A MANNER SO SERIOUS THAT ANY
REASONABLE PERSON, CONSIDERING THE CIRCUMSTANCES, VVOULD DEEM THE
ACTS BEYOND THE BOUNOS OF HUMAN DECENCY," INCLUDING SEXUAl ABUSE
AND USING DETAINEES AS HUMAN SHIELDS,
·IT BUILDS ON PREVIOUS STANDARDS OF DETAINEE TREATMENT THAT
ALREADY EXIST IN U.s. LAW, INCLUDING CRIMINAL STATUTES
FORBIDDING TORTURE AND VARIOUS OTHER ACTS OF VIOLENCE (SUCH AS

211912009

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MURDER, MOnLAnON, SERIOUS BODILY INJURY, AND RAPE), AND THE
PROHIBrrtON ON CRUEL, INHUMAN, AND DEGRADING TREATMENT IN THE
MILITARY COMMISSIONS ACT AND THE DETAINEE TREATMENT ACT.
..THE ORDER SPECIFICAllY APPLIES THE INTERPRETATION OF COMMON
ARTICLE 3 TO A CIA INTERROGATION PROGRAM FOR CERTAIN CAPTURED Al
QAEOA TERRORISTS WHO HAVE INFORMATION ON ATTACK PLANS OR THE
WHEREABOUTS OF THE GROUP'S SENIOR LEADERS.
..THE ORDER CO~AINS A LIST OF SPECIFIC REQUIREMENlS FOR THE
CONDUCT OF THE CIA'S PROGRAM. FOR EXAMPLE:
·'THE PROGRAM MUST COMPLY WITH THE PROHIBITION ON CRUEL,
INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT IN THE DETAINEE
TREATMENT ACT;
-THE ORDER FORBIDS ACT INTENDED TO DENIGRATE DETAINEE'S
RELIGION OR RELIGIOUS PRACnCES;
-DETAINEES MuST RECEIVE ADEQUATE FOOD, WATER. SHELTER.
NECESSARY CLOTHING, PROTECnON FROM EXTREMES OF HEAT AND COLD.
AND MEDICAL CARE;
.
-INTERROGATlON TECHNIQUES MUST BE DEEMED SAFE FOR EACH
DETAINEE WITH VllHOM THEY ARE UseD; AND
-THE CIA DIRECTOR MUST ISSUE POLICIES TO ENSURE THAT THE
PROGRAM OPERATES SAFELY, PROFESSIONALLY, AND IN ACCORDANCE WlTH
THE ORDER AND U.S. LAW.
END IF-ASKED PRESS POINTS.
6. (U) BEGIN QUESTIONS AND ANSWERS.
-Q: DOES THE ORDER APF>LY ONLY TO THE CIA, OR TO
ALL AGENCIeS?
.A; THE ORDER IN'TERPRE'TS COMMON ARTlClE 3 AND
APPLIES THAT INTERPRETATION TO THE CIA PROGRAM.
THE DEPARTMENT OF DEFENSE ALREADY HAS POLICIES IN
PLACE TO REQUIRE THAT ITS PERSONNEL COMPLY WITH
COMMON ARTICLE 3.
-0: DOES THE ORDER PROHIBIT WATERBOARDING: SLEEP
DEPRIVATION. AND HYPOTHERMIA?
-A:. THE ORDER REQUIRES PROTECTION OF DETAINEES
FROM EXTREMES OF HI:AT OR COLD. IT DOES NOT
ENUMERATE ANY SPECIFIC PROHIBITED OR AUTHORIZED
PRACTICES, ALL INTERROGATION PRACTICES MUST BE IN
COMPLIANCE WITH THE TERMS OF THE EXECUTIve OROER.
-0: HAS THE CIA PROGRAM CHANGED AT All SINCE IT
BEGAN TO OPERATE SEVERAL YEARS AGO?
.A; THE LEGAl. LANOSCAPE HAS CHANGED IN SIGNIFICANT
WAYS SINCE 2001. THE SUPREME COURT'S OECISION IN
HAMOAN V. RUMSFELD LED TO THE APPtlCATION OF
COMMON ARTICLE 3 TO THE CONFLICT WITH Al QAEDA.
AND IN THE MCA. CONGRESS MADE OTHER SIGNIFICANT
CHANGES TO THE LAW THAT ARE REFLECTED IN THIS
ORDER. THE CIA PROGRAM MUST COMPLY WITH THIS
ORDER.
-0: WHY DID THE PRESIDENT ISSUE THIS ORDER NOW?
·A: THE PRESIDENT ISSUED THE ORDER TO PROVIDE
CLEAR DIRECTION ON 'THE INTERPRETA1l0N AND
APPLICATION OF COMMON ARTICLE 3 UNDER U.S. LAW, TO
ENSURE THAT THE UNITED STATES UPHOLDS ITS O'Ml LAWS
AS VVEll AS ITS TREATY OBLIGAT\ONS IN ITS TREATMENT
OF DETAINEES. THE MeA EXPRESSLY AUTHORIZED THE·
PRESIDENT TO TAKE THIS STEP. IT HAS TAKEN SOME
TIME SINCE THE MCA 8ECAME LAW TO COME TO A
CONCLUSION ABOUT HOW BEST TO ACHIEVE THIS
OBJECTIVE. THE PRESIDENT MADE CLEAR LAST
SEPTEMBER THAT A CIA PROGRAM FOR QUESnONING
TERRORISTS WOULD CONTINUE TO BE CRUCIAL TO

2/1912009

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OBTAINING UFEoSAVING INFORMATION.
END QUESTIONS AND ANSVVERS.
7. (U) MINIMIZE CONSIDERED.
RICE

Classification: UNCLASSIFIED

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RELEASED IN PART
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'-='Th=--ursday---:--,.....,J,..."ne----::2~1.....,.2:":OOO=7=-3=-:a=-1""'p==M-=----------

To~

B3
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Subject: Mauritania (V)

1520 - MauritanialSeeret CIA Prisons: (SIINF') AMBMBASSY NOUAKCHOrr. 211736Z. #0566.
A spokesman from the Ministry of Foreign Affairs and Cooperation has categorically denied what he
called "baselcss" allcgations, published in the New Yorker. that the government of Colonel Ely Vall had
allowed the creation of secret CIA detention centers in Mauritania. The author of the article cited a
funn.. senior ...Uig.... olliciel ...d allOvemmcnl:!Ull!mI .......... Post e a r l

~-=--=====:
=====!.J_

Bl
B3

DTG
211736Z JVN 07

FROM
FM AMEMBASSY ~hKCHQTT

CLASS

secRET
BODY.
TAGS: MR, PGOV, PlroM, l?REL, J?TBR
SUBJECT: FOREIGN MINISTRY REFt1'.t'SS ALI.B<m'1'IONS OF SECRET CIA
l?RlS0NS IN MAURITA1UA
CIASSInEO BY: CDA STEVEN KOUTSIS FOR ~ONS 1. 4 la), (C) AND (D)
1. (U) 'l'H1S AN ACTION REQUEST.
l?LEASE SBE PARAGRAPH C;.
2 • [U) A SPOKESMAN FROM THE MINISTRY OF FOREIGN AFFAIRS ~
C::OOPEAATION HAS CATEGORICALLY DENIED WHAT HE CALIJID
"BASBLl':SS· ALLEGATIONS, PUBLISHED IN THE NEW YORKER, TfiAT THE
GOVERNMtm'l' OF COLONEl. aLY VALL HAD AliLOHED THB ~TION 011'
S1!>CRET CIA DBTBN'l'ION CENTERS IN MAURITANIA. THE SPO!<ESM1Ul
EMPHASIZED THAT MAURI:TANIA IS A DBMOCRATIC STATE 'l"HAT
CONSIDERS INTBRNATIONAL CONVSNTIONS SUPREME JUID IRltEVERSIBLB.
THB GOV'SRNMENT RESPONSB CAME FOLLOWING CALLS FROM OPPOSITION
PAATIES FOR THE GOVERNMENTS IMMEDIATE INQUJ:RY INTO THE
MATTER.
:3. (tI) l:N AN ARTICLE PUBLISHED BY THE NJUI YORKBR TITLED "HOW
ANTONIO TAGUBA, lfflO INVESTIGATED i'HB ABU GHRAID SCANDAL,
BECAME ONE OF ITS VICTIMS· AND AVAILABLE ON-LINB, REPORTBR
SEYMOUR KERSH, CITING A FORMER SBNIOR :I:N'l'BLLIGBNCE OFFICIAL
AND A ~ CONSULTANT lIS SOURCBS. ALLEGBD TlfAT Al"TBR
EXISTENCE OF SECRET CIA PRrSONS IN EUROPE WAS EXPOSBP BY nm

WASHINGTON POST IN LATE 2005, THE BUSH ADMINISTlU\'1'10N

UNITED slIlt'igqfEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200902196

UNCLASSIFIED

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"RBSPONI>ED WITH A NEW DBT.lUNSI3 CENTER IN Ml\URI'1'.ANIA.· TJlB
BOURC'BS ALSO WUD. ACCORDING TO THE ARTICLlh
• AFTER A NBW
GO'YERNMBNT FRIENDLY TO THE U.S. TOOK POWER. IN A BLOODLESS
COUP D'BTAT IN AUGUST, 2005, ••• IT Wi\S MUCH BASlER FOR '1'JlB
INl'ELLlGENCB COMMUNITY TO MASK SBCRB'l' FLIGHTS THSRB.·
4. (0) SSVBRAL LOCAL NEWS SOURCES HAW UPORTED THB NEW
YORDR STORY AND THE FOREIGN MINISTRY'S RESPONSB. MOREOVER,
CERTAIN PAPERS HAW RBINTRODUCIm THB PRBV:tOUS JWMoR THAT THE
UN:tTED STATES GOVBRNMRNT HAD A HAND IN '!'HE 2005 BLOODLESS
COOP, AND 0N8 NEWSPAPER SPECULATED THAT TH8 SUl'llOSSl>
DETENTION CBNTBR WAS AT TH'B MAURITANIAN MILITARY CAMP IN
OOALATA. OTHlSR PUSS HAS PICKBD UP HBRSH' S SUBSEQUENT
INTBRVI~ WITH Dl';MOCRAcY NOW I CORRSSPONDENT AMY GOODMAN,
WHBRE HB SPECUI.ol\TBD THAT 3'7 TO 39 'Oll' "l'KB TO'OGHIht HlGR VALuE
TAR-GETS' WHO ME SUPPOSEDLy UNACCOUNTBD FOR WERB IN FACT
RSNDERBD TO MAORtTAIUA. HE CALL!lD THE SUPPOSBD DB'1'2NTION
CENTBR TItE 'PRISON OF CHOICE." HB I.8 QUOTED TO SAY, "THAT
THBRB IS A PRISON THERE, NO QUJtSTION. ALL THE .DJ:TAILS, I

REALLY DON'T KNOW.·

Bl

KOUTSI.S

SUBJECT
FOReiGN MINISTRY REFUTES ALLEGATIONS OF SECRET CIA
PRISONS IN MAURITANIA
CLASSIFlfD BY; CDA STEVEN KOUTS IS FOR REASONS 1.4 (6), (C) AND (0)

ADMIN

aT

#0566

COB2

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DERIVEO FROM; MS
DECLASSIFY ON: MR
Classification: SecreVINOFORN/lMR

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------------------E1C48A 111417Z /38
R 111404Z JUL 07
FM USMISSION GENEVA
RELEASED IN
TO SECSTATE WASHDC 4709
USMISSION USUN NEW YORK

FULL

UNCLAS GENEVA 001766
STATE FOR IO-RHS, DRL-MLA, L-HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: Enforced Disappearances - #20 in Geneva 2007 Communications
Log
1. Mission has received a communication from the
Chairman-Rapporteur on the Working Group on Enforced or Involuntary
Disappearances, Santiago Corcuera, regarding the implementation of
the Declaration on the Protection of All Persons from Enforced
Disappearances. This communication has been sent via e-mail to
IO-RHS and is #20 on the Geneva 2007 Communications Log.
2. Begin text of letter:
Excellency,
At the request and on behalf of the Chairman of the Working Group on
Enforced or Involuntary Disappearances, I have the honour to
communicate the following letter addressed to you:
IlExcellency,

I have the honour to write to you on behalf of the Working Group on
Enforced or Involuntary Disappearances, which held its 82nd session
from 25 to 29 June 2007 at the Office of the United Nations High
Commissioner for Human Rights in Geneva.
In the course of the session, the Working Group decided to inform
your Government of general allegations it has received in relation
to the implementation of the Declaration on the Protection of All
Persons from Enforced Disappearances in your country. A summary is

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2138

provided in Annex I. Any comments regarding these general
UNCLASSIFIED
allegations should be received by the date given in the next
paragraph in order to be included in the Working Group's annual
report.
I would like to take this opportunity to remind your Government that
the Working Group will hold its 83rd session at the United Nations
Office in Geneva from 21 to 30 November 2007. As such, the Working
Group would be grateful if any written information which your
Government wishes to submit for the Working Group's consideration,
could be received by 1 October 2007. Information may be submitted at
any time of the year, and will be reviewed as soon as it can be
processed.
In conformity with its usual practice, the Working Group is prepared
to receive representatives of interested Governments during the
first three days of its next session, from 21 to 23 November 2007.
Should your Government wish to be represented at the forthcoming
session, please contact the Working Group's secretariat at the
United Nations Office of the High Commissioner for Human Rights in
Geneva (tel: 022 917 9176, fax: 022 917 9006) to schedule an
appointment with the Working Group. The dates of subsequent sessions
for the coming year may also be requested or found on the WGEID
webpage: http ://www. ohchr. org/english/issues/disappear.
I remain, Excellency,
Yours sincerely,
Santiago Corcuera Chairman-Rapporteur Working Group on Enforced or
Involuntary Disappearances"
I remain, Excellency,
Yours sincerely,
Tanya Smith
Secretary
Working Group on Enforced
or Involuntary Disappearances
Annex
General Allegation: USA 07.06.07
The Working Group received information from non-governmental
organizations concerning reported obstacles encountered in the
implementation of the Declaration on the Protection of All Persons
from Enforced Disappearance.
It was reported that on 6 September 2006, the US President stated
that the United States runs a system of secret detention in the "War
on Terror". However, US authorities have not disclosed how many
individuals were secretly detained.

UNCLASSIFIED
ER2139

UNCLASSIFIED
The United States government has reportedly constructed a
wide-ranging detention system for terrorism suspects. It is alleged
that this system includes detention in secret US-controlled
detention facilities outside the United States.
End of text.
Chammas
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------------------CAOE7A 090910Z /38
P 090830Z MAY 06
FM USMISSION GENEVA
TO USMISSION USUN NEW YORK PRIORITY
SECSTATE WASHDC PRIORITY 9455
AMEMBASSY DHAKA
INFO HUMAN RIGHTS COMMISSION COLLECTIVE
UNCLAS

Y18

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GENEVA 001100

E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: INFORMAL DISCUSSIONS CONTINUE ON HUMAN RIGHTS
COUNCIL
REF: GENEVA 00939
Sununary

1. Norway, Chile, India, Russia, and South Africa hosted
informal consultations May 3 to discuss with Geneva missions,
NGOs, and OHCHR Secretariat staff the Human Rights Council's
(HRC) first session and initial phase of operations.
The
tone of the meeting was pleasantly cordial and
non-confrontational, suggesting that members were on their
best behavior in the run-up to the May 9 HRC elections.
China stressed that an HRC chair-designate, a provisional
agenda, and a plan to extend all mandates should be put in
place before the June 19 HRC start date. This reflected the
general consensus, which also called for formulating a road
map for the first year's sessions, establishing a working
group to consider the procedures for the universal periodic
review and to review mandates from the Commission on Human
Rights (CHR) , and holding a dignified, transparent, and
all-inclusive first session. The debate on how much
substance should be included in the first session continued,
but all agreed that there would be little time given the
two-week schedule. Several representatives, mostly from
European and GRULAC countries, suggested including the five

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2141

inter~governmental working groups at the inaugural session. UNCLASSIFIED
Although there was widespread agreement on the need for a
facilitator to guide preparations for the HRC's first
session, many countries preferred to wait until after the May
9 Council elections and the designation of a chair. End
Summary.
Widespread Agreement on Many Key Issues
2. This cross-regional event showcased widespread consensus
on the necessity of the following for the first session:
-advance preparations;
-a facilitator (though half of those who spoke wanted this
role filled only by the chair-designate);
-focus on short-fuse priorities, including extension of all
mandates for one year;
-extension of the Sub-Commission so it can meet in August;
-creation of a flexible road map outlining sessions for the
next year;
-strong focus on procedural matters;
-a High-Level Segment with speaking times of 5-10 minutes;
-creation of working groups to develop the universal periodic
review process and to review all existing mandates and
mechanisms; and
-transparency and inclusion of non-Council members and NGOs.
China Speaks Up
3. Chinese Counselor Yifan La said the first session should
be a structured and dignified affair focused on procedural
matters and the creation of a road map for the next year.
Pressing issues would be the selection of a Council and
chair-designate, a provisional agenda to include the
extension of all expiring mandates, and the establishment of
a working group to formulate universal periodic review
procedures and other mechanisms inherited from the Commission
on Human Rights (CHR) , including the 1503 complaints
mechanism. Functioning rules of procedure should also be in
place by the first session. La conceded that it was a
"daunting task" but one that the Council would need to
undertake "to bury the old Commission." He said all
stakeholders should be part of the first session but did not
elaborate how they would participate. Participants appeared
to share most of China's views, though GRULAC members
appeared dissatisfied after La said that China supported
drawing lots for the Council chairmanship position or doing
it alphabetically, starting with the African Group. Earlier

UNCLASSIFIED
ER2142

in the meeting, Brazil had stated that a GRULAC country would
claim the chairmanship of the new Council.

UNCLASSIFIED

Fitting Substance into F.irst Session
4. Many members expressed the need to include some substance
in the first session's agenda. A proposal to take action on
the five inter-governmental working groups -- Rights of
Indigenous Peoples, Enforced Disappearances, Optional
Protocol to Economic, Social and Cultural Rights Covenant,
Right to Development, and Durban Implementation -- at the
inaugural session garnered widespread support from Chile, the
Czech Republic, France, Malaysia, Mexico, Portugal, Spain,
and Switzerland. Some representatives, most notably Spain,
suggested that the adoption of the Draft Convention Against
Enforced Disappearances and the Draft Declaration on the
Rights of Indigenous Peoples was a forgone conclusion. In
separate interventions, Poloff and her Australian counterpart
pointed out that a number of countries considered the two at
different stages of development and not ready for adoption.
Several Asian Group countries, including Indonesia, cautioned
the group to refrain from introducing anything controversial
during the first session to ensure a smooth launching of the
HRC. China reminded member states of how the last CHR
session "almost didn't happen" due to disagreements among
members and reiterated that all contentious issues should be
avoided for the first session. Several countries agreed that
there should be a role at the first session for Special
Procedures, especially since most of the mandate holders
would be in Geneva anyway during the week of June 19 for
their annual meeting. Discussion on the exact degree of
participation ranged, however, from simply attending the
opening ceremony to having the Special Procedures chair make
a general presentation to interactive dialogue with all
mandate holders.
Chair-Designate As Facilitator
5. Most countries stressed the urgency of having a
facilitator to guide preparations leading up to the June 19
HRC session, but a few countries, most notably China,
suggested it would be better to wait for a chair-designate to
be determined and let that person facilitate consultations.
China said that the host countries at the May 3 consultations
were already serving as facilitators, so it would be better
to wait for a chair-designate. France and several other

UNCLASSIFIED
ER2143

countries said that they could wait for a chair-designate to
'be selected after the May 9 elections.
(Note: Discussions
on the margin confirmed that agreement on a chair is still a
long way off. End note)
Switzerland noted that it was
organizing its own cross-regional consultation meeting in
Lausanne on May 15 to continue informal discussions on the
HRC.
ROBINSON

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ER2144

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SOURCE: CBLEXCLS.004511
DRAFTED BY: L/HRR:HARRISRK -- 04/17/2006 202-647-4035
APPROVED BY: IO:LAGONMP
IO/RHS:TAJOHNSON
L/HRR:AMSURENA
DRL:JVALLSNOYES(SUBS)
------------------BCOF84 172147Z /38
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UNCLAS STATE 060910
E.O. 12958: N/A
TAGS: PHUM, UN, PREL
SUBJECT: ICCPR - PREPARATIONS FOR JULY MEETING WITH U.N.
HUMAN RIGHTS COMMITTEE
1. This is an action request.

See paragraph 2.

2. Mission is requested to transmit to the Secretariat the
text in paragraph 3 regarding preparations for the July 17-18
U.S. session before the Human Rights Committee.
3.

Begin text.

(Complimentary opening) and refers to the Secretary
General,s letter of March 31, 2006 regarding the United
States report of its implementation of the International
Covenant on Civil and Political Rights and its upcoming
meeting with the Human Rights Committee on July 17 and 18,
2006.
The United States is pleased to work collaboratively with the
Human Rights Committee and the Secretariat staff to make the
July session productive and informative. As part of this
effort, the United States will be sending a very large,
high-level interagency delegation to the meetings in Geneva.
As discussed in the working lunch with the Chairman of the
Committee referred to in the Secretary General,s note, the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2145

various commitments by members of this delegation make it
impossible to agree for that delegation to be available for a
third session, and the Government of the United States
appreciates the Committee,s understanding on this issue. As
further discussed at that luncheon, the United States will be
scrupulous in staying within the time limits set by the
Committee during the two sessions, to make sure that there is
adequate time available to have a thorough discussion of the
issues of concern to the Committee.

UNCLASSIFIED

As the Secretariat is aware, the United States Government
will be presenting to the Committee Against Torture its
report on its implementation of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment in May of 2005. As the U.S. government
participants in that meeting and the July session are similar
and as providing concise and complete responses to the
complex issues raised by the Committee involves an intensive
and deliberative process within the U.S. government, it will
be difficult for the United States to guarantee that its
written answers will be available three weeks in advance of
the July hearing.
That said, the United States will work
diligently to prOVide those answers as much in advance of the
July session as is possible.
As United States delegation
members discussed with the Committee Chairman at the working
lunch, the United States will probably not be in a position
to provide its answers in French and Spanish, and it
understands that no country has yet provided such answers to
the Committee in three languages.
The United States will be pleased to inform the Secretary
General in writing of the names and titles of the
representatives who will represent the United States at the
July session.
The United States looks forward to an informative and
productive exchange of information and perspectives with the
Human Rights Committee in the July meetings and is committed
to working collaboratively with the Committee to make that
session a SUccess.

(Complimentary closing)
End text.
RICE

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L/UNA BRANCATO; IO; DRL
E.O. 12958: N/A
TAGS: FR, UNGA;UNHR
SUBJECT: FINAL REPORT ON UNHCR WG SESSION OF FORCED
DISAPPEARANCES (SEPTEMBER 12-23, 2005)
1.
(U) SUMMARY. The Intersessiona1 Working Group to
elaborate a draft legally binding normative instrument
completed work on a Convention for the Protection of All
Persons from Forced Disappearance and, although there was no
consensus, agreed that there was no impediment to
consideration of the text by the Human Rights Commission.
The U.S. stated objections on several points that will be
recorded in the final report of the session. END SUMMARY.
2.
(U) The Fifth and Final session of the Working Group to
elaborate a draft legally binding instrument on Enforced
Disappearance was held in Geneva September 12 - 23, 2005.
The U.S. Delegation included Gilda Brancato (L/HRR), Mission
Legal Adviser Jeffrey Kovar, Deputy Legal Adviser Paula
Barton, Political Counselor Velia DePirro and Human Rights
Officer Jan Levin.
3.
(U) Overview. The French Chair of the Working Group
opened the meetings by announcing that he intended to have
the Working Group finish its consideration of issues not
taken up at the January session, then go through the whole
draft text again for editorial changes only. He stated he
would only accept substantial changes if they commanded
consensus. Outstanding issues were 1) the role of non-state

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClliE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED

ER2147

actors; 2) the terr~tor~al reach o~L~~SIFI~R~ght to
Know and, f~nally, 4) the form of the ~nstrument and the
nature of the mon~tor~ng body. The f~rst of these was
resolved w~th a comprom~se language formula concern~ng state
act~on wh~ch reflects the ~nternat~onal law pos~t~on of the
Un~ted states; the second was resolved when Ch~na w~thdrew
~ts proposed art~cle ~n favor of mak~ng an ~nterpret~ve
declarat~on at the t~me of rat~f~cat~on.
The other two
~ssues consumed much of the two week negot~at~on.
On the
f~nal read~ng, several other ~ssues were ra~sed, ~nclud~ng
def~n~t~on, cr~m~nal ~ntent, the statute of l~~tat~ons and
"found ~n" jur~sd~ct~on, as well as the defense of super~or
orders, non-refoulement and the reference to the term "Cr~mes
aga~nst Human~ty."
US Del made statements of pos~t~on for
the record regard~ng these ~ssues.
4.

(U) The

R~ght to Know. How to prov~de access to
was one of the most controvers~al ~ssues ra~sed
~n the negot~at~ons.
The Lat~n countr~es w~th some As~an and
European all~es ~ns~sted that a "R~ght to Truth" be ~ncluded
~n the text that would guarantee access by fa~l~es and other
concerned part~es to all ~nformat~on related to the poss~ble
enforced d~sappearance of an ~n~v~dual. The Un~ted States
w~th the support of several common law countr~es ~ns~sted
that the r~ght to ~nformat~on was never absolute, that
domest~c law ~n many countr~es was ~ncompat~ble w~th such an
absolute r~ght and that there were occas~ons when there was a
~nformat~on

leg~t~mate

publ~c

~nterest

~n w~thhold~ng certa~n

US Del attempted to make rev~s~ons to both the
preamblar language of PP7 and the text of Art~cle 24(2).
They sought support for the use of the term "Freedom of
Informat~on" ~n the manner that ~t was used ~n the ICCPR and
~n the USG approved resolut~on on the R~ght to Truth at the
CHR, a formula also compat~ble w~th US domest~c law.
In the
end, an important reference to "freedom of information was
~ncluded ~n the preamble, and statements were recorded that
the r~ght to truth could only be understood as ~mplemented
through a freedom of ~nformat~on system. Nevertheless, we
could not ach~eve the level of clar~ty des~red or changes to
Art~cle 24(2).
The US Del requested that the record
~nformat~on.

ll

~nd~cate ~ts

d~ssat~sfact~on.

5.
(U) Mon~tor~ng Body. Despite a sharp spl~t of op~n~on ~n
favor of an opt~onal protocol to the ICCPR and use of the
Human R~ghts Comm~ttee (HRC) as the mon~tor~ng mechan~sm, ~t
was clear from the outset that the Cha~r env~s~oned a new
convent~on w~th an ~ndependent mon~toring body.
Arguments ~n
favor of the Cha~r's approach were that the HRC was already
overburdened and backlogged, that the new co~ttee could be
composed of persons who were experts on the issue of Enforced

UNCLASSIFIED

ER2148

Disappearance, and that the indepen~~At;:S'!'FI~D
incorporate a system for addressing "urgent situations." The
contrary view (shared by the U.S.) held that an existing and
experienced committee would be more efficient and effective
and avoid redundancies and inconsistent jurisprudence, that
providing adequate financial support to the HRC could reduce
its backlog allowing it to accomodate the work of enforced
disappearance.
In addition, the U.N. is in the process of
evaluating whether to consolidate all treaty bodies as well
as make other reforms and, because of that effort, this was
not the appropriate time to create a new treaty body. The
Chair finally acknowledged his view that the most important
reason for making a separate convention and treaty body was a
political one; that is, a separate treaty would underscore
the importance of the issue and it was what the families
wanted. There was extended debate concerning whether or not
a separate convention could legally be implemented using the
HRC but the final decision was made by the Chair. In an
attempt to insert some compromise the Chair proposed to
include a clause that called for a conference of states
parties within four to six years of entry into force to
evaluate the effectiveness of the new treaty body in light of
its performance and the U.N. reforms, and determine whether
it should be continued or replaced by an existing body. (This
suggestion actually drew a less than enthusiastic response
from the attendees but was included in the document anyway.)
The U.S. stated its objections to this result for the record.
6.
(U) The Final Reading. US Del made numerous proposals
and raised objections for the record on Second Reading.
These objections included statements with reference to
preamblar paragraph 7 on the Right to Know, Article 2 on the
definition of an enforced disappearance, Article 4 on
Criminalization, Article 5 referring to Crimes Against
Humanity, Article 6(2) on Defense of Obedience to Superior
Orders, Article 8 on Statutes of Limitations, Article 9(2) on
"found in" jurisdiction, Article 16 on non-refoulement,
Article 17 on access to places of detention, and Article
24(2) again concerning the Right to Know. Several other
states expressed reservations on several provisions of the
final text. Notable were the concerns of Germany on the
Right to Know, New Zealand on reparations, and the
Netherlands on the danger of undercutting the U.N. system
with a new treaty body. Although the Second Reading was
proclaimed by the Chair to be editorial only, the Chair
included changes to text suggested by the Latin states, NGOs
and the families.

UNCLASSIFIED

ER2149

7.
(U) No Consensus. Throughout tl:J'l\li@lli>A:&~IF'IEJ91e us Del
met with the Chair to express serious concern that the pace
of the negotiations and failure to accommodate significant
legal concerns of the United States would make it impossible
for the U.s. to join a consensus. The Chair acknowledged the
problem but was adamant that this be the last session and the
product of this negotiation was his text and would go forward
to the Commission. The Chair made clear that all states
could submit their objections for the record in the Chair's
report.
In the end, the Chair did not declare consensus, but
only stated that the working group could make no more
progress and its work was at an end. We have provided USG
changes to the draft Report and will be reviewing the final
Report as soon as it is prepared to verify that all of our
concerns are reflected.

8)
(U) The Wrap-up. The final day of negotiations was
taken up with general statements by delegations. Many
delegations and organizations representing disappeared
persons reacted with outpourings of emotion over the
conclusion of the draft text.
Several delegations also took
the occasion to restate their objections for the record. The
US Del delivered a statement confirming each of the
objections that it had previously raised. Text of that
statement was emailed to L/HRR.
Moley
NNNN

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ER2150

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IN FULL

GENEVA 002441

STATE FOR IO/SHA, DRL/MLA, L/HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: COMMUNICATION FROM THE WORKING GROUP ON ENFORCED
DISAPPEARANCES
1. Mission received the following letter dated August 25,
2004 from the Chairman of the Working Group on Enforced or
Involuntary Disappearances, Stephen J. Toope, addressed to
Ambassador Moley. The letter concerns reports the Working
Group has received regarding alleged secret detention centers
under United States' authority in various parts of the world
and invites the USG to submit written information by October
15 and/or send a representative to appear in person at the
next Working Group session November 8-15, 2004.
2.

Text of letter and annex follows:

Begin text.
25 August 2004
Dear Mr. Ambassador,
I should like to communicate to you, on behalf of the
Chairman of the Working Group on Enforced or Involuntary
Disappearances, the following letter addressed to you:
II

Dear Mr ~ Ambas sador 1

I have the honour to write to you on behalf of the Working
Group on Enforced or Involuntary Disappearances, which held

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: IS JUN 2009 200706444

UNCLASSIFIED

ER2151

its se"enty-third session from 16 to 20 August 2004, at the
United Nations Office in Geneva.

UNCLASSIFIED

In the course of the session, the Working Group decided to
inform your Government of reports it had received about
developments in your country having an influence on the
phenomenon of disappearances or the solution of the cases not
yet clarified, andlor on the implementation of the
Declaration on the Protection of All Persons from Enforced
Disappearances. A summary is provided as an Annex to this
letter.
I would like to take this opportunity to remind your
Government that the Working Group will hold its
seventy-fourth session from 8 to 15 November 2004, at the
Untied Nations Office in Geneva.
It would therefore be very
much appreciated if any written information that your
Government wishes to submit for the Working Group's
consideration, could be received, if possible, by 15 October
2004.
In conformity with its usual practice, the Working Group is
prepared to receive representatives of interested Governments
during the first three days of its session.
Should your
Government wish to be represented at the forthcoming session,
I would appreciated your contacting the Group's secretariat
at the Untied Nations Office of the High Commissioner for
Human Rights in Geneva (tel. 022-917-9176), in order to
schedule an appointment with the Group.
I remain
Dear Mr. Ambassador,
Yours sincerely
Stephen J. Toope
Chairman
Working Group on Enforced or Involuntary Disappearances"
I remain,
Dear Mr. Ambassador,

Yours sincerely,

111111111111111111111
Tanya Smith
Secretary a.i.
Working Group on Enforced or Involuntary Disappearances
ANNEX
WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES

UNCLASSIFIED

ER2152

General allegations

UNCLASSIFIED

United States of America
The Working Group received information from non-governmental
organizations concerning the reported non-compliance by the
Government of the United States of America with provisions of
the Declaration on the Protection of All persons from
Enforced Disappearance.
Reports were received by the Working Group regarding secret
detention centers under United States' authority in various
parts of the world, in which an unknown number of persons are
detained. Reports assert that there was inadequate provision
of notice to families about the capture of detainees and
their conditions, legal status and rights.
It is also
reported that i t is unclear in many circumstances which U.S.
agency is Ultimately responsible for the arrest or the
conditions of confinement of the detainees in these
facilities.
Reports further specify that the most sensitive and
high-profile detainees are not being held in Guantanamo
because it is believed that detainees there will eventually
be monitored by the U.s. courts.
It is stated that terrorism
suspects are detained by the Untied States in "undisclosed
locations," presumably outside the United States, with no
access to the ICRC, no notification to families, no oversight
of any sort of their treatment, and in most cases no
acknowledgment that they are even being held.
Information
was provided on 13 specific alleged detainees, apprehended in
places such as Pakistan, Indonesia, Thailand, Morocco, and
the United Arab Emirates, who have reportedly disappeared in
U.s. custody.
American authorities have also apparently refused to
disclose the names of men secretly detained during the past
few years within the United States. Families have not been
informed on the arrested persons' locations. Reports state
that some of these detainees have now been released or
deported.
End text.
3. Mission transmitted a copy of the letter by fax to
IO/SHA, Attention Director.
Cassel

UNCLASSIFIED

ER2153

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ER2154

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UNCLAS GENEVA 003196
STATE FOR IO/SHA, DRL/MLA, L/HRR
E.O. 12958: N/A
TAGS: PHUM
SUBJECT: ICCPR PERIODIC REPORT OVERDUE
REF: A. GENEVA 2046
B. GENEVA 1844
1.

THIS IS AN ACTION REQUEST.

SEE PARAGRAPH 6.

2. SUMMARY: MISSION RECEIVED A DIPLOMATIC NOTE DATED
SEPTEMBER 17, 2003 FROM THE OFFICE OF THE HIGH COMMISSIONER
FOR HUMAN RIGHTS (OHCHR) REMINDING US THAT THE SECOND
PERIODIC REPORT REQUIRED UNDER ARTICLE 40 OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
IS OVERDUE.
THE REPORT WAS ORIGINALLY DUE IN 1998, AND,
SINCE THE THIRD REPORT IS DUE NEXT MONTH, THE SECRETARIAT HAS
RECOMMENDED THAT OUR SUBMISSION COVER THE PERIOD FROM 1995 TO
MID 2003.
IN THE EVENT THAT THE REPORT IS NOT RECEIVED BY
MARCH 16, 2004, SIX MONTHS FROM THE DATE OF THE NOTE, THE
HUMAN RIGHTS COMMITTEE MAY INVOKE RULE 69A, GIVING IT THE
AUTHORITY TO EXAMINE COMPLIANCE ON THE BASIS OF OTHER SOURCES
OF INFORMATION. END SUMMARY.
3. MISSION RECEIVED A DIPLOMATIC NOTE DATED SEPTEMBER 17,
2003 FROM THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN
RIGHTS (OHCHR) REMINDING US OF OUR OVERDUE SECOND PERIODIC
REPORT REQUIRED UNDER ARTICLE 40 OF THE INTERNATIONAL
CONVENTION ON CIVIL AND POLITICAL RIGHTS (ICCPR). THE TEXT
OF THE NOTE IS AS FOLLOWS:
BEGIN TEXT:
THE SECRETARIAT OF THE UNITED NATIONS (OFFICE OF THE

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE m: 18 JUN 2009 200706444

UNCLASSIFIED
ER2155

hIGH COMMISSIONER FOR HUMAN RIGHTS) PRESENTS ITS COMPLIMENTUNCLASSIFIED
TO THE PERMANENT MISSION OF THE UNITED STATES TO THE UNITED
NATIONS OFFICE AT GENEVA AND HAS THE HONOUR TO REFER TO
PARAGRAPH 66 OF THE ANNUAL REPORT OF THE UN HUMAN RIGHTS
COMMITTEE TO THE GENERAL ASSEMBLY (DOCUMENT A/56/40, VOL. I).
PURSUANT TO THIS PARAGRAPH, THE GOVERNMENT OF THE UNITED
STATES WAS SCHEDULED TO PRESENT ITS SECOND PERIODIC REPORT
UNDER ARTICLE 40 OF THE INTERNATIONAL CONVENTION ON CIVIL AND
POLITICAL RIGHTS BY 7 SEPTEMBER 1998.
SAID REPORT HAS NOT
YET BEEN RECEIVED BY THE COMMITTEE.
THE HUMAN RIGHTS COMMITTEE RESPECTFULLY URGES THE
GOVERNMENT OF THE UNITED STATES TO SUBMIT ITS SECOND PERIODIC
REPORT UNDER ARTICLE 40 OF THE COVENANT AT THE GOVERNMENT'S
EARLIEST CONVENIENCE, AND NOT LATER THAN 6 MONTHS FROM THE
DATE OF THIS PRESENT NOTE. REFERENCE IS MADE TO RULE 69A OF
THE COMMITTEE'S RULES OF PROCEDURE, WHICH ENABLES THE
COMMITTEE TO CONSIDER THE MEASURES TAKEN BY THE STATE PARTY
TO GIVE EFFECT TO THE RIGHTS PROTECTED UNDER THE COVENANT IN
THE ABSENCE OF A REPORT. A COpy OF THE COMMITTEE'S RULES OF
PROCEDURE IS ATTACHED FOR EASE OF REFERENCE.
END TEXT.
4. PERIODIC REPORTS ARE REQUIRED EVERY FIVE YEARS UNDER THE
ICCPR. OUR SECOND REPORT WAS DUE ON SEPTEMBER 7, 1998 AND
OUR THIRD REPORT WOULD NORMALLY BE DUE ON NOVEMBER 20, 2003.
THE SECRETARIAT OF THE HUMAN RIGHTS COMMITTEE ADVISED THAT
THE CURRENT REPORT, TO BE SUBMITTED BEFORE MARCH 16, 2004,·
SHOULD COVER THE PERIOD FROM 1995 TO MID-2003.
5. RULE 69A ALLOWS THE COMMITTEE TO CONSIDER A STATE'S
COMPLIANCE WITH THE ICCPR IN CASES WHERE IT HAS NOT SUBMITTED
A WRITTEN REPORT.
6. COMMENT AND ACTION REQUEST: WITHOUT OUR REPORT, THE
COMMITTEE WILL RELY ONLY ON NGO AND OTHER OUTSIDE SOURCES OF
INFORMATION IN THEIR CONSIDERATION OF OUR COMPLIANCE WITH THE
ICCPR. POST REQUESTS GUIDANCE ON AN INTERIM RESPONSE TO THE
COMMITTEE CONCERNING THE STATUS OF OUR SUBMISSION. END
COMMENT.
7. POST WILL FAX A COPY OF THE NOTE AND RULE 69A TO TOM
JOHNSON IN IO/SHA.
MOLEY
NNNN

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ER2156

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FOR IO/SHA AND DRL/MLA
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001
1.

THIS IS CHR DELEGATION CABLE 110.

2. ON APRIL 23, THE COMMISSION COMPLETED CONSIDERATION OF
AGENDA ITEM 10 (ECONOMIC, SOCIAL AND CULTURAL RIGHTS) AND
BEGAN CONSIDERATION OF AGENDA ITEM 11 (CIVIL AND POLITICAL
RIGHTS). THE COMMISSION ADOPTED TWENTY TEXTS, INCLUDING
SEVEN BY VOTE. PARAGRAPH VOTES WERE ALSO TAKEN ON TWO OF THE
UNCLASSIFIED
PAGE 02
GENEVA 01726 01 OF 06 241926Z
RESOLUTIONS, BEFORE THE OVERALL TEXTS WERE ADOPTED BY
CONSENSUS.
AGENDA ITEM 10 - ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
--L.45

HUMAN RIGHTS AND EXTREME POVERTY (FRANCE)

ADOPTED WITHOUT A VOTE.
WITHOUT A VOTE.
--L.48

SEE CHR 2000/12 (FRANCE), ADOPTED

GLOBALIZATION (PAKISTAN)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2157

ADOPTED BY A VOTE OF 37-15(US)-1.
AND GAVE EOV BEFORE THE VOTE.

UNCLASSIFIED

U.S. CALLED FOR THE VOTE

--L.50 ACCESS TO MEDICATION IN THE CONTEXT OF PANDEMICS SUCH
AS HIV/AIDS (BRAZIL) (NEW)
ADOPTED BY A VOTE OF 52-0-1(US).
VOTE.

U.S. GAVE EOV BEFORE THE

--L.53 WOMEN'S EQUAL OWNERSHIP OF, ACCESS TO AND CONTROL
OVER LAND AND THE EQUAL RIGHTS TO OWN PROPERTY AND TO
ADEQUATE HOUSING (MEXICO)
ADOPTED WITHOUT A VOTE. U.S. CALL FOR A VOTE ON OP5 AND WAS
REJECTED BY A VOTE OF 49-1(US)-3. SEE CHR 2000/13 (MEXICO),
ACCEPTED WITHOUT A VOTE.
UNCLASSIFIED
PAGE 03

GENEVA

01726

01 OF 06

241926Z

--L.54 ADVERSE EFFECTS OF THE ILLICIT MOVEMENT AND DUMPING
OF TOXIC AND DANGEROUS PRODUCTS AND WASTES ON THE ENJOYMENT
OF HUMAN RIGHTS (KENYA)
ADOPTED BY A VOTE OF 38-15(US). TEXT EXTENDED MANDATE OF
SPECIAL RAPPORTEUR BY THREE YEARS. SEE CHR 2000/72 (AF
COORDINATOR) ADOPTED BY VOTE 37-16(US).
--L.37 THE SOCIAL FORUM - SUB-COMMISSION DRAFT DECISION 2
(NORWAY)
NORWEGIAN AMENDMENT ADOPTED WITHOUT A VOTE.
--L.43 PROMOTION OF THE REALIZATION OF THE RIGHT TO DRINKING
WATER AND SANITATION - SUB-COMMISSION DRAFT DECISION 3
(NORWAY)
NORWEGIAN AMENDMENT ADOPTED WITHOUT A VOTE.
AGENDA ITEM 11 - CIVIL AND POLITICAL RIGHTS
--L.8/REV.1 CIVIL AND POLITICAL RIGHTS: STRENGTHENING OF
POPULAR PARTICIPATION, EQUITY, SOCIAL JUSTICE AND
NON-DISCRIMINATION AS ESSENTIAL FOUNDATIONS OF DEMOCRACY.
ADOPTED BY A VOTE OF 28-4(US)-21. CUBAN PROPOSAL OF A
SUB-AMENDMENT TO THE EU AMENDMENTS CHANGING "AFFIRMS" TO

UNCLASSIFIED
ER2158

UNCLASSIFIEDUNCLASSIFIED
PAGE 04
GENEVA 01726 01 OF 06 241926Z
"NOTES" WAS ADOPTED BY A VOTE OF 24-17(US)-12.
--L/34

HUMAN RIGHTS AND TERRORISM (ALGERIA)

ADOPTED BY A VOTE OF 33-14(US)-6 (NO WESTERN CO-SPONSORS).
SEE CHR 200/30, ADOPTED BY VOTE 27-13-12.
--L/35

HOSTAGE-TAKING (RUSSIA)

ADOPTED WITHOUT A VOTE.

SEE CHR 2000/29.

--L/38 INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY,
JURORS AND ASSESSORS AND THE INDEPENDENCE OF .LAWYERS (HUNGARY)
ADOPTED WITHOUT A VOTE.

USDEL CO-SPONSORED.

SEE CHR 2000/42.

--L/40 THE RIGHT TO RESTITUTION, COMPENSATION AND
REHABILITATION FOR VICTIMS OF GRAVE VIOLATIONS OF HUMAN
RIGHTS AND FUNDAMENTAL FREEDOMS (CHILE)
ADOPTED WITHOUT A VOTE.
--L/44

SEE CHR 2000/41.

QUESTION OF ARBITRARY DETENTION (FRANCE)
UNCLASSIFIED
UNCLASSIFIED

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TO SECSTATE WASHDC 1000
INFO HUMAN RIGHTS COMMISSION COLLECTIVE
INFO

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UNCLAS SECTION 02 OF 06 GENEVA 001726
FOR IO/SHA AND DRL/MLA

UNCLASSIFIED
ER2159

E.O. 12958: N/A
UNCLASSIFIED
TAGS: PHUM, UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001
ADOPTED WITHOUT A VOTE.

SEE CHR 2000/36.

--L.46 CONTINUING DIALOGUE ON MEASURES TO PROMOTE AND
CONSOLIDATE DEMOCRACY
ADOPTED BY A VOTE OF 44(US)-0-9.
(CUBAN AMENDMENT L.66 WAS
WITHDRAWN; OP 5 WAS RETAINED BY A VOTE OF 37 (US) -8-8.)
UNCLASSIFIED
PAGE 02

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01726

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241927Z

--L.49 IMPLEMENTATION OF THE DECLARATION ON THE ELIMINATION
OF ALL FORMS OF INTOLERANCE AND OF DISCRIMINATION BASED ON
RELIGION OR BELIEF (IRELAND)
ADOPTED WITHOUT A VOTE.

USDEL CO-SPONSORED.

--L.51 THE INCOMPATIBILITY BETWEEN DEMOCRACY AND RACISM
(BRAZIL)
ADOPTED WITHOUT A VOTE.

USDEL CO-SPONSORED.

--L.52 DRAFT OPTIONAL PROTOCOL TO THE CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT (COSTA RICA)
ADOPTED WITHOUT A VOTE.

USDEL CO-SPONSORED.

--L.55 EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS
(SWEDEN)
ADOPTED WITHOUT A VOTE. U. S. CHANGE ADOPTED FOR OP8
(" OBLIGATIONS ASSUMED UNDER"). USDEL GAVE EOP AT END OF THE
AGENDA ITEM.
--L.57

QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES

ADOPTED WITHOUT A VOTE. U.S. AMENDMENT TO DELETE OP12
(ESTABLISHMENT OF A WORKING GROUP) WAS REJECTED BY A VOTE OF
4(U.S., INDIA, JAPAN AND MALAYSIA)-34-15; U.S. AMENDMENT TO
OP11 (DELETING REFERRAL OF THE REPORT OF THE INDEPENDENT
UNCLASSIFIED
PAGE 03
GENEVA 01726 02 OF 06 241927Z
EXPERT TO THE WORKING GROUP) WAS REJECTED BY A VOTE OF
5(U.S., CANADA, INDIA, JAPAN AND KENYA)-37-11.

UNCLASSIFIED
ER2160

UNCLASSIFIED

--L.56 THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
(CANADA)
CANADIAN AMENDMENT TO PP1 AS SUB-AMENDED BY CUBA ADOPTED
WITHOUT A VOTE; CUBAN AMENDMENTS TO WITHDRAW PARAGRAPHS PP
3,4, 10 AND OP2, 14, AND 16(A) FAILED BY A VOTE OF
43(U.S.)-3-7. FOLLOWING ADOPTION OF THE CUBAN AMENDMENT,
USDEL WITHDREW CO-SPONSORSHIP. RESOLUTION WAS VOTED AND
ADOPTED BY A 44(US)-0-8. USDEL GAVE EOV.
3. THE FOLLOWING EXPLANATIONS OF VOTE AND EXPLANATIONS OF
POSITION WERE DELIVERED BY THE U.S. DELEGATION DURING THE
CONSIDERATION OF AGENDA ITEMS 10 AND 11.
BEGIN TEXT.
u.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF VOTE
L. 48, GLOBALIZATION AND HUMAN RIGHTS
AMBASSADOR GEORGE MOOSE
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOV: L. 48, GLOBALIZATION AND HUMAN RIGHTS
APRIL 23, 2001
UNCLASSIFIED
PAGE 04
MR. CHAIRMAN:

GENEVA

01726

02 OF 06

241927Z

THE UNITED STATES DOES NOT ACCEPT THE PREMISE THAT THE NET
EFFECT WORLD-WIDE OF THE MANY PHENOMENA GROUPED UNDER THE
TERM "GLOBALIZATION" HAS BEEN AN INCREASE IN POVERTY, NOR
THAT GLOBALIZATION HAS HAD A BROAD NEGATIVE IMPACT ON THE
ENJOYMENT OF HUMAN RIGHTS.
IN ITS NON-ECONOMIC ASPECTS, THE
VASTLY INCREASED INFORMATION FLOWS FACILITATED BY
GLOBALIZATION HAVE ALLOWED A MUCH BRIGHTER LIGHT TO BE
FOCUSED ON HUMAN RIGHTS ABUSES AROUND THE WORLD, BRINGING
GREATER INTERNATIONAL ATTENTION THAN EVER BEFORE.
AS FOR GLOBALIZATION'S ECONOMIC ASPECTS, THE PAST THREE
DECADES HAVE SEEN MORE PEOPLE RISE OUT OF ABSOLUTE POVERTY
THAN IN ANY COMPARABLE PERIOD IN THE WORLD'S HISTORY. THE
COUNTRIES THAT HAVE SUCCEEDED BEST AT HELPING THEIR CITIZENS
ESCAPE FROM POVERTY HAVE BEEN THOSE WITH EFFECTIVE
GOVERNMENTS THAT LARGELY EMERACED FREER MARKETS, FREER TRADE,
AND TECHNOLOGICAL CHANGE.

UNCLASSIFIED
ER2161

UNCLASSIFIED

IT IS CERTAINLY TRUE THAT GLOBALIZATION EMBODIES CHANGE, THAT
CHANGE PRESENTS CHALLENGE TO ANY SOCIETY, AND THAT AMONG
THESE CHALLENGES IS THE PROBLEM OF HELPING THOSE WHO MAY FIND
IT DIFFICULT TO ADAPT FOR WHATEVER REASON. NATIONAL POLICIES
UNCLASSIFIED
UNCLASSIFIED
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PRM-01
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------------------E36889 241927Z /38
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FM USMISSION GENEVA
TO SECSTATE WASHDC 1001
INFO HUMAN RIGHTS COMMISSION COLLECTIVE
INFO

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UNCLAS SECTION 03 OF 06 GENEVA 001726
FOR IO/SHA AND DRL/MLA
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001
PROMOTING PARTICIPATION IN GLOBALIZATION'S OPPORTUNITIES AND
PROVIDING SAFETY NETS FOR THOSE WHO MAY BE ADVERSELY AFFECTED
ARE VITAL IN THIS REGARD.
THE LESSONS OF RECENT DECADES ARE CLEAR, HOWEVER. THE
DEVELOPING COUNTRIES WITH THE FASTEST GROWTH RATES FOR
EXTENDED PERIODS HAVE BEEN THOSE THAT ARE MOST INTEGRATED IN
UNCLASSIFIED
PAGE 02
GENEVA Oi726 03 OF 06 241927Z
THE WORLD ECONOMY, AND THE MOST INVOLVED IN THE PROCESS OF
GLOBALIZATION. FAILURE TO TAKE ADVANTAGE OF NEW
OPPORTUNITIES, EVEN WHERE THESE ARE ACCOMPANIED BY
CHALLENGES, WILL CONDEMN POPULATIONS TO FURTHER ECONOMIC
MARGINALIZATION AND STAGNATION.
THIS REALITY IS NOT REFLECTED IN THE CURRENT DRAFT.

FOR

UNCLASSIFIED
ER2162

THESE REASONS, AMONG OTHERS, THE U .lJJ.N@I:9AJ8!StFtE~sOLUTION .
THANK YOU.
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF VOTE
L.50, ACCESS TO MEDICATIN IN THE CONTEXT OF
PANDEMICS SUCH AS HIV/AIDS
AMBASSADOR GEORGE MOOSE
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOV: L.50
ACCESS TO MEDICATION IN THE CONTEXT OF PANDEMICS SUCH AS
HIV/AIDS
MR. CHAIRMAN:
THE UNITED STATES IS STRONGLY COMMITTED TO ADDRESSING THE
AIDS PANDEMIC INTERNATIONALLY, INCLUDING ACCESS TO TREATMENT
AND CARE. FOR THAT REASON, WE WORKED HARD WITH BRAZIL AND
OTHER DELEGATIONS TO TRY TO COME TO AGREEMENT ON AN
UNCLASSIFIED
PAGE 03
GENEVA 01726 03 OF 06 241927Z
ACCEPTABLE TEXT. WE CERTAINLY UNDERSTAND AND APPRECIATE THE
SENTIMENTS THAT HAVE MOTIVATED THIS INITIATIVE. WE VERY MUCH
REGRET, HOWEVER, THAT, DESPITE EXTENSIVE DIALOGUE REGARDING
THIS VERY COMPLEX ISSUE, WE ARE UNABLE TO JOIN CONSENSUS ON
THIS TEXT.
FROM THE PERSPECTIVE OF GOOD PUBLIC HEALTH PRACTICE, WE
BELIEVE THAT THIS RESOLUTION IS FLAWED IN A NUMBER OF WAYS.
AS WRITTEN THE RESOLUTION WOULD LIMIT THE RIGHTS OF STATES TO
SET PRIORITIES WITHIN THEIR NATIONAL POLICIES AND STRATEGIES
FOR DEALING WITH SUCH PANDEMICS. WE BELIEVE THAT STATES MUST
HAVE THE LATITUDE TO DEVELOP BALANCED STRATEGIES THAT INCLUDE
PREVENTION, COUNSELING AND RELATED SUPPORT SERVICES, AS WELL
AS CARE, INCLUDING ACCESS TO DRUGS.
WE NOTE THAT UNAIDS - THE UN'S UMBRELLA ORGANIZATION FOR
RESPONDING TO THE HIV/AIDS CRISIS - WAS ESTABLISHED TO
DE-MEDICALIZE HIV/AIDS AND TO FOCUS ON THE NEED FOR A
MULTI-DIMENSIONAL APPROACH TO THIS PANDEMIC. IT IS CLEAR THAT
AN OVER-EMPHASIS ON USE OF PHARMACEUTICALS, NO MATTER HOW
WELL INTENTIONED, DETRACTS FROM THE MORE FUNDAMENTAL NEED FOR
PRIMARY PREVENTION.
HIV/AIDS IS A HORRIBLE DISEASE.

ONCE STARTED, MEDICINES MUST

UNCLASSIFIED
ER2163

BE USED CONSISTENTLY DAY AFTER DAY ~IPA1)S~FI~ REST OF
A PATIENT'S LIFE.
IF STOPPED, WHEN THE PATIENT FEELS BETTER,
THE DISEASE RETURNS VERY STRONGLY. THEREFORE, FOR TREATMENT
TO BE EFFECTIVE, IT IS ESSENTIAL THAT STATES PUT IN PLACE THE
INFRASTRUCTURE TO ENSURE THAT ANTI-RETROVlRALS ARE USED
APPROPRIATELY.
UNCLASSIFIED
PAGE 04
GENEVA 01726 03 OF 06 241927Z
THE RESOLUTION CALLS INTO QUESTION THE LEGITIMATE
RESPONSIBILITY OF NATIONAL GOVERNMENTS TO ASSURE THE
EFFECTIVENESS AND SAFETY OF PHARMACEUTICAL PRODUCTS FOR USE
IN PANDEMICS. FURTHER, IT APPEARS TO QUESTION THE VALIDITY OF
INTERNATIONALLY AGREED PROTECTIONS OF INTELLECTUAL PROPERTY
IN SO DOING, IT COULD WELL HAVE THE UNINTENDED
RIGHTS.
CONSEQUENCE OF DISCOURAGING INVESTMENT IN THE IMPORTANT
RESEARCH DESPERATELY NEEDED TO FIND THE CURES OF THE FUTURE.
NOR DOES THIS RESOLUTION CONSIDER THE POTENTIAL FOR OTHER
UNINTENDED CONSEQUENCES, INCLUDING THE EMERGENCE OF MORE
VIGOROUS AND DRUG RESISTANT FORMS OF THE HIV VIRUS. SIMPLY
PUT, THIS IS BAD PUBLIC HEALTH POLICY.
THIS RESOLUTION IS, IN ESSENCE, A FLAWED HEALTH DOCUMENT, NOT
A HUMAN RIGHTS DOCUMENT. COMPLEX HEALTH MATTERS ARE BEST
DEALT WITH BY THE UN ORGANIZATION THAT HAS THE TECHNICAL
COMPETENCE IN THOSE MATTERS -- THE WORLD HEALTH ORGANIZATION.
THE 191 MEMBER STATES THAT COMPRISE THE WORLD HEALTH
ASSEMBLY WILL BE MEETING HERE IN GENEVA IN THREE WEEKS TIME,
AND BOTH HIVIAIDS AND WHO'S REVISED DRUG STRATEGY WILL BE ON
THE AGENDA. THAT IS THE MOST APPROPRIATE VENUE FOR HEALTH
MATTERS.
MY GOVERNMENT IS ALSO CONCERNED BY REFERENCES WHICH APPEAR TO

UNCLASSIFIED
UNCLASSIFIED
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EUR-OO
UTED-OO
SRPP-OO EAP-OO
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UNCLASSIFIED
ER2164

FM USMISSION GENEVA
UNCLASSIFIED
TO SECSTATE WASHDC 1002
INFO HUMAN RIGHTS COMMISSION COLLECTIVE
UNCLAS SECTION 04 OF 06 GENEVA 001726
FOR IO/SHA AND DRL/MLA
E.O. 12958: N/A
TAGS: PHUM, .UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001
BE AIMED AT CREATING A NEW CATEGORY OF RIGHTS, SUCH AS THE
REFERENCE TO THE RIGHT TO THE "HIGHEST ATTAINABLE STANDARD OF
PHYSICAL AND MENTAL HEALTH." THE UNITED STATES DOES NOT
SUPPORT THE CREATION OF LEGALLY ENFORCEABLE ENTITLEMENTS OR
THE ESTABLISHMENT OF JUDICIAL OR ADMINISTRATIVE REMEDIES AT
THE NATIONAL OR INTERNATIONAL LEVELS TO ADJUDICATE SUCH
PRESUMED RIGHTS.
UNCLASSIFIED
PAGE 02

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01726

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241927Z

THE U.S. GOVERNMENT IS THE WORLD'S LEADING PROVIDER OF
INTERNATIONAL ASSISTANCE FOR THE PURPOSE OF PROVIDING THAT
PEOPLE LIVING WITH HIV/AIDS RECEIVE TREATMENT AND CARE,
INCLUDING PHARMACEUTICALS. WE HAVE PLAYED A LEADING ROLE IN
THE DEVELOPMENT OF INTERNATIONAL STRATEGIES TO COMBAT THE
SCOURGE OF THIS DISEASE. WE CANNOT, HOWEVER, SUPPORT A
FLAWED RESOLUTION WHOSE UNINTENDED CONSEQUENCES COULD PROVE
EXTREMELY HARMFUL TO OUR COLLECTIVE EFFORTS.
FOR THESE REASONS, AND OTHERS, MY DELEGATION WILL ABSTAIN IN
THE VOTE ON THIS RESOLUTION.
THANK YOU.

U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF POSITION
L.53, WOMEN'S EQUAL OWNERSHIP OF, ACCESS TO AND
CONTROL OVER LAND
AMBASSADOR GEORGE MOOSE
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOP: L. 53, WOMEN'S EQUAL OWNERSHIP OF, ACCESS TO AND CONTROL
OVER LAND
APRIL 23, 2001

UNCLASSIFIED
ER2165

MR. CHAIRMAN:

UNCLASSIFIED

THE UNITED STATES REGRETS THAT IT IS FORCED TO CALL FOR A
UNCLASSIFIED
PAGE 03
GENEVA 01726 04 OF 06 241927Z
VOTE ON OP 5 OF RESOLUTION L. 53.
IT IS CLEAR THAT OUR
MODEST, TECHNICAL AMENDMENT DOES NOT HAVE THE SUPPORT OF THE
MEMBERS OF THE COMMISSION.
WE REGRET THAT. WE THINK IT IS
A MISTAKE FOR THIS BODY, OR ANY U.N. BODY, TO ENGAGE IN THE
PRACTICE OF REWRITING THE HISTORICAL RECORD.
THAT SAID, GIVEN THE OPPOSITION TO OUR AMENDMENT, WE HEREBY
WITHDRAW IT. HOWEVER, UNDER THE CIRCUMSTANCES,. WE FEEL
OBLIGED TO REQUEST A VOTE ON OP 5. ONCE AGAIN, WITH RESPECT
TO OP 5, COMMISSION ON THE STATUS OF WOMEN RESOLUTION 42-1
-- REAFFIRMED IN THIS PARAGRAPH - INCLUDES NO MENTION OF THE
RIGHT TO ADEQUATE HOUSING.
FURTHERMORE, THE REFERENCE TO THE RIGHT OF ADEQUATE HOUSING
IS A MISSTATEMENT OF INTERNATIONAL HUMAN RIGHTS LAW. WE HAVE
SOUGHT IN NEGOTIATIONS BEFORE TODAY TO AMEND THIS RESOLUTION
TO MAKE IT CONSISTENT WITH THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS, AS WELL AS WITH THE HUMAN RIGHTS AND HOUSING
RESOLUTION ALSO BEING ADOPTED UNDER THIS AGENDA ITEM. WE
STRONGLY SUPPORT, MOREOVER, THE PROPOSITION THAT WOMEN'S
RIGHTS IN THE AREA OF HOUSING SHOULD BE EQUAL TO THOSE OF MEN.
THIS, HOWEVER, CANNOT BE ACHIEVED THROUGH MISSTATEMENT OF
ACCEPTED INTERNATIONAL PRINCIPLES OR INCORRECT CITATIONS OF
RESOLUTIONS ADOPTED BY OTHER BODIES.
IT IS FOR THESE REASONS
THAT WE ARE UNABLE TO CO-SPONSOR THIS RESOLUTION.
THANK YOU.
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
UNCLASSIFIED
PAGE 04
GENEVA 01726 04 OF 06
EXPLANATION OF VOTE
L.34, HUMAN RIGHTS AND TERRORISM

241927Z

AMBASSADOR GEORGE MOOSE
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOV: L.34, HUMAN RIGHTS AND TERRORISM
APRIL 23, 2001
MR. CHAIRMAN:

UNCLASSIFIED
ER2166

UNCLASSIFIED

RECENT EVENTS HAVE SHOWN THAT TERRORISM CONTINUES TO POSE
CLEAR AND PRESENT DANGER TO THE INTERNATIONAL COMMUNITY.
THE
ATTACK ON THE U.S.S. COLE AND THE RASH OF TERRORIST ATTACKS
AROUND THE WORLD ARE ONLY THE LATEST IN A SERIES OF EVENTS
THAT DEMONSTRATE CLEARLY THAT TERRORISTS HAVE NO RESPECT FOR
HUMAN LIFE.
THE UNITED STATES HAS A STRONG AND ABIDING
COMMITMENT TO COMBATING TERRORISM, WHICH INCLUDES COOPERATING
WITH THE APPROPRIATE MECHANISMS ESTABLISHED BY THE
INTERNATIONAL COMMUNITY.
WE REGRET, THEREFORE, THAT WE ARE OBLIGED TO VOTE AGAINST
THIS RESOLUTION. OUR REASON IS THAT THE SPONSORS HAVE
INCLUDED LANGUAGE THAT GRANTS TERRORISTS AND TERRORIST
UNCLASSIFIED
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AID-OO
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NEA-OO
DCP-01
NSAE-OO
OPIC~Ol
PRS-OO
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/008W
------------------E36896 241927Z /38
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FM USMISSION GENEVA
TO SECSTATE WASHDC 1003
INFO HUMAN RIGHTS COMMISSION COLLECTIVE

DODE-OO
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UNCLAS SECTION 05 OF 06 GENEVA 001726
FOR IO/SHA AND DRL/MLA
E.O. 12958: N/A
TAGS: PHOM, UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001
ORGANIZATIONS A MEASURE OF LEGITIMACY BY EQUATING THEIR
CONDUCT WITH THAT OF STATES. WE BELIEVE THAT THE BASIC
FUNCTION OF THE COMMISSION IS TO SET HUMAN RIGHTS STANDARDS
THAT ARE BINDING UPON STATES AND TO REVIEW STATES' COMPLIANCE
WITH THOSE STANDARDS. TERRORISTS ARE NOT STATE ACTORS, BUT
CRIMINALS WHO BEAR INDIVIDUAL CRIMINAL RESPONSIBILITY FOR
THEIR ACTIONS. THE PERPETUATION OF THIS UNFORTUNATE
UNCLASSIFIED

UNCLASSIFIED
ER2167

UNCLASSIFIED

PAGE 02
GENEVA 01726 05 OF 06 241927Z
CONFUSION ADDS NOTHING TO THE ABILITY, OR THE OBLIGATION, OF
MEMBER STATES TO COOPERATE IN THE EFFORT TO COMBAT TERRORISM.
FOR THIS REASON, THE UNITED STATES BELIEVES THAT THE SUBJECT
OF TERRORISM IS BEST ADDRESSED IN OTHER FORA, SUCH AS THE
SIXTH COMMITTEE OF THE U.N. GENERAL ASSEMBLY.
THANK YOU.
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF POSITION
L . 47, TORTURE AND OTHER CRUEL, UNHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT
AMBASSADOR SHIRIN TAHIR-KHELI
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOP: L.47, TORTURE AND OTHER CRUEL, UNHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT
APRIL 23, 2001
MR. CHAIRMAN:
THE COMMITMENT OF THE UNITED STATES TO THE GOALS OF THIS
RESOLUTION REMAIN AS STRONG AS EVER, AND WE ARE GRATEFUL TO
DENMARK FOR THE LEADERSHIP IT HAS SHOWN ON THIS ISSUE.
WHILE WE REMAIN CONCERNED ABOUT THIS ASPECT OF TORTURE, WE
BELIEVE THAT IT IS UNREASONABLE TO CALL FOR LEGISLATIVE
UNCLASSIFIED
PAGE 03
GENEVA 01726 05 OF 06 241927Z
MEASURES TO PREVENT THE PRODUCTION OF THESE DEVICES WHEN
THERE ARE CLEARLY MANY PROBLEMS DEFINING PRECISELY WHAT THESE
DEVICES ARE.
THUS, WE HAVE WITHDRAWN OUR CO-SPONSORSHIP OF L.47 FOR ONE
REASON ONLY: WE OPPOSE THE INCLUSION IN OP 8 OF THE
REFERENCE TO THE PRODUCTION OF TORTURE DEVICES.
THANK YOU.
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF POSITION
L.56, FREEDOM OF OPINION AND EXPRESSION

UNCLASSIFIED
ER2168

UNCLASSIFIED

STEVEN SOLOMON
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOP:L.56, FREEDOM OF OPINION AND EXPRESSION
APRIL 23, 2001
MR. CHAIRMAN:

IT IS WITH REGRET THAT WE WITHDRAW OUR COSPONSORSHIP FROM
L.56, THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION. THE
ACCEPTANCE OF THE AMENDMENT WHICH REFERS TO ARTICLE 4 OF THE
CONVENTION ON THE ELIMINATION OF RACIAL DISCRIMINATION CAUSES
US TO DO SO.
WE OBJECT IN PRINCIPLE TO THE LANGUAGE TO THE EXTENT IT
PURPORTS TO BIND STATES TO TREATY PROVISIONS WHETHER OR NOT
UNCLASSIFIED
PAGE 04
GENEVA 01726 05 OF 06 241927Z
THEY HAVE BEEN ACCEPTED BY A PARTICULAR STATE.
LET US ALSO ADD THAT THE CONSTITUTION AND LAWS OF THE UNITED
STATES CONTAIN EXTENSIVE PROTECTIONS OF INDIVIDUAL FREEDOM OF
SPEECH, EXPRESSION AND ASSOCIATION. AS THE UNITED STATES
MADE CLEAR UPON ITS RATIFICATION OF THE CONVENTION, THE
UNITED STATES DOES NOT ACCEPT ANY OBLIGATION UNDER THIS
CONVENTION, IN PARTICULAR UNDER ARTICLE 4, TO RESTRICT THOSE
RIGHTS, THROUGH THE ADOPTION OF LEGISLATION OR ANY OTHER
MEASURES, TO THE EXTENT THAT THEY ARE PROTECTED BY THE
CONSTITUTION AND LAWS OF THE UNITED STATES.
OUR COMMITMENT TO THE GOALS OF THIS RESOLUTION AS TABLED BY
CANADA REMAINS AS STRONG AS EVER.
WE WOULD ALSO LIKE TO RESTATE OUR GRATITUDE TO CANADA FOR ITS
EFFORTS ON AND COMMITMENT TO THIS ISSUE.
THANK YOU.
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EXPLANATION OF POSITION
L. 57, ENFORCED OR INVOLUNTARY DISAPPEARANCES
UNCLASSIFIED
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UNCLAS SECTION 06 OF 06 GENEVA 001726
FOR IO/SHA AND DRL/MLA
E.O. 12958: N/A
TAGS: PHOM, UNHRC-1
SUBJECT: CHR VOTING RESULTS -- APRIL 23, 2001

MICHAEL DENNIS
U.S. DELEGATION, UN COMMISSION ON HUMAN RIGHTS
EOP: L. 57, ENFORCED OR INVOLUNTARY DISAPPEARANCES
APRIL 23, 2001
UNCLASSIFIED
PAGE 02
GENEVA 01726 06 OF 06 241928Z
MR. CHAIRMAN:
THE UNITED STATES IS PLEASED TO SUPPORT THE RENEWAL IN L.57
OF THE MANDATE OF THE WORKING GROUP ON ENFORCED AND
INVOLUNTARY DISAPPEARANCES AND TO COMMEND THEM ON THEIR
EXCELLENT WORK IN SUPPORT OF THE FAMILIES OF THE DISAPPEARED.
HOWEVER, MR. CHAIRMAN, WE MUST ALSO RESTATE OUR OPPOSITION TO
THE ESTABLISHMENT OF AN INTER-SESSIONAL, OPEN-ENDED WORKING
GROUP AS PROPOSED IN OP 12 OF THE REVISED TEXT IN THE
SEPARATE DOCUMENT.
ALTHOUGH WE UNDERSTAND THE MOTIVATIONS
OF THE SUPPORTERS OF THIS IDEA AND THE IMPORTANCE OF
MECHANISMS DESIGNED TO ADDRESS ENFORCED OR INVOLUNTARY
DISAPPEARANCES, IN OUR VIEW THIS WOULD CLEARLY DUPLICATE WORK
NOW BEING HANDLED BY OTHER INTERNATIONAL INSTRUMENTS AND BY
TWO EXISTING TREATY BODIES.
MR. CHAIRMAN, WE NOTE FURTHER THAT THERE IS A BASIC
CONTRADICTION IN THE PROPOSALS CONTAINED IN OP 11 AND OP 12.
OP 11 CALLS FOR THE APPOINTMENT OF AN INDEPENDENT EXPERT TO

UNCLASSIFIED
ER2170

EXAMINE WHETHER THERE EXIST "ANY GAPS" IN THE CURRENT
PROTECTIONS WITH REGARD TO ENFORCED OR INVOLUNTARY
DISAPPEARANCES. OP 12 WOULD CREATE, SIMULTANEOUSLY, A NEW
WORKING GROUP THAT WOULD BEGIN WORK ON A NEW, LEGALLY-BINDING
INSTRUMENT EVEN BEFORE KNOWING WHETHER THE STUDY OF THE
INDEPENDENT EXPERT REVEALS ANY NEED FOR SUCH AN INSTRUMENT.
CLEARLY, THE PROPOSED CREATION OF A WORKING GROUP IS, AT
BEST, PREMATURE.

UNCLASSIFIED

FOR THIS REASON, MR. CHAIRMAN, WE PROPOSE AN AMENDMENT
DELETING OP 12, WHICH WOULD ESTABLISH THE WORKING GROUP.
UNCLASSIFIED
PAGE 03
GENEVA 01726 06 OF 06 241928Z
ADDITIONALLY, THE U.S. PROPOSES A TECHNICAL AMENDMENT TO OP
11 TO DELETE THE PHRASE IN THE LAST LINE OF THE REVISED TEXT:
AND TO THE FIRST SESSION OF THE WORKING GROUP ESTABLISHED
UNDER PARAGRAPH 12. THE INDEPENDENT EXPERT SHOULD SUBMIT HIS
REPORT TO THE COMMISSION ON HUMAN RIGHTS SO THAT A DECISION
CAN BE TAKEN BY THIS BODY ON NEXT STEPS.
TO REPEAT, MR. CHAIRMAN, THE UNITED STATES IS PROPOSING AN
AMENDMENT DELETING OP 12 CALLING FOR THE PREMATURE
ESTABLISHMENT OF THE WORKING GROUP. SECOND, WE ARE CALLING
FOR AN AMENDMENT TO OP 11 TO DELETE THE WORDS: AND TO THE
FIRST SESSION OF THE WORKING GROUP ESTABLISHED UNDER
PARAGRAPH 12. AGAIN, THE INDEPENDENT EXPERT SHOULD REPORT TO
THE COMMISSION.
THANK YOU, MR. CHAIRMAN.
END TEXT.
MOOSE
UNCLASSIFIED

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UNCLAS GENEVA 004616
DEPT. FOR IO/ESA AND L/HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1, US
SUBJECT: CHR RESOLUTION 2000/37 - QUESTION ON ENFORCED OR
INVOLUNTARY DISAPPEARANCES
1. MISSION HAS RECEIVED THE FOLLOWING NOTE VERBALE NO. 3301
DATED AUGUST 8, 2000 REQUESTING THE USG TO PROVIDE ANY
INFORMATION IT MAY WISH TO TRANSMIT TO THE OHCHR ON CHR
RESOLUTION 2000/37, IF POSSIBLE, BY SEPTEMBER 30, 2000.
BEGIN TEXT:
UNCLASSIFIED
PAGE 02

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04616

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THE SECRETARY-GENERAL OF THE UNITED NATIONS PRESENTS ITS
COMPLIMENTS TO YOUR GOVERNMENT AND HAS THE HONOUR TO DRAW ITS
ATTENTION TO RESOLUTION 2000/37 ADOPTED BY THE COMMISSION ON
HUMAN RIGHTS ON 20 APRIL 2000 ENTITLED "QUESTION ON ENFORCED
OR INVOLUNTARY DISAPPEARANCES."
IN ITS OPERATIVE PARAGRAPH 9, THE COMMISSION ON HUMAN RIGHTS
REQUESTED THE SECRETARY-GENERAL TO ENSURE THE WIDE
DISSEMINATION OF THE DRAFT INTERNATIONAL CONVENTION OF THE
PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES (E/CN
4/SUB. 2/1998/19, ANNEX) TRANSMITTED BY THE SUB-COMMISSION IN
ITS RESOLUTION 1998/25 OF 26 AUGUST 1998, ASKING STATES,
INTERNATIONAL ORGANIZATIONS AND NON-GOVERNMENTAL

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE lD: 18 JUN 2009 200706444

UNCLASSIFIED
ER2172

OP.GANIZATIONS TO SUBMIT THEIR VIEWS AND COMMENTS, AS A MATTER
OF HIGH PRIORITY, ON THE DRAFT INTERNATIONAL CONVENTION, ON
THE FOLLOW-UP THERETO, AND IN PARTICULAR, ON WHETHER AN
INTERSESSIONAL WORKING GROUP SHOULD BE SET UP TO CONSIDER THE
DRAFT INTERNATIONAL CONVENTION. A COpy OF THE DRAFT
INTERNATIONAL CONVENTION IS ATTACHED HEREWITH.

UNCLASSIFIED

THE SECRETARY-GENERAL WOULD BE GRATEFUL IF YOUR GOVERNMENT
COULD FORWARD TO THE OFFICE OF THE HIGH COMMISSIONER FOR
HUMAN RIGHTS, ACTIVITIES AND PROGRAMMES BRANCH, UNITED
NATIONS OFFICE AT GENEVA, CH 1211 10, IF POSSIBLE BY 30
SEPTEMBER 2000, ANY INFORMATION IT MAY WISH TO PROVIDE ON THE
MATTER.
8 AUGUST 2000
END OF TEXT.
UNCLASSIFIED
PAGE 03

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04616

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2. MISSION WILL TRANSMIT BY POUCH NOTE VERBALE AND ANNEX TO
IO/ESA.
MOOSE
UNCLASSIFIED

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UNCLAS GENEVA 000036
STATE FOR IO-RHS, DRL-MLGA, L-HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: Working Group on Enforced or Involuntary Disappearances
1. Mission has received a communication from the Secretary, a.i. on
the Working Group on Enforced or Involuntary. This communication is
number 04 on the Geneva 2008 Communications Log.
2.
Begin text of letter. Excellency, At the request and on
behalf of the Chairman of the Working Group on Enforced or
Involuntary Disappearances, I have the honour to communicate the
following letter addressed to you:
"Excellency, I have the honour to write to you on behalf of the
Working Group on Enforced or Involuntary Disappearances, which held
its 83rd session from 21 to 30 November 2007 at the Office of the
United Nations High Commissioner for Human Rights in Geneva.
In the course of the session, the Working Group decided to
inform your Government of general allegations it has received in
relation to the implementation of the Declaration on the Protection
of All Persons from Enforced Disappearances in your country. A
summary is provided in Annex I. Any comments regarding these general
allegations should be received by 1 October 2008 in order to be
included in the Working Group's annual report.
I would like to take this opportunity to remind your Government
that the Working Group will hold its 84th session at the United
Nations Office in Geneva from 10 to 14 March 2008. As such, the
Working Group would be grateful if any written information which
your Government wishes to submit for the Working Group's
consideration, could be received by 8 February 2008. Information may
be submitted at any time of the year, and will be reviewed as soon
as it can be processed.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2174

UNCLASSIFIED

In conformity with its usual practice, the Working Group is prepared
to receive representatives of interested Governments during the
first three days of its next session, from 10 to 11 March 2008.
Should your Government wish to be represented at the forthcoming
session, please contact the Working Group's secretariat at the
United Nations Office of the High Commissioner for Human Rights in
Geneva (tel: 022 917 9176, fax: 022 917 9006) to schedule an
appointment with the Working Group. The dates of subsequent sessions
for the coining year may also be requested or found on the WGEID
webpage: http://www.ohchr.org/english/issues/disappear. I remain,
Excellency, Yours sincerely, Santiago Corcuera Chairman-Rapporteur
Working Group on Enforced or Involuntary Disappearances'
83rd Session General Allegation: USA
The Working Group received information from non-governmental
organizations concerning reported obstacles encountered in the
implementation of the Declaration on the Protection of All Persons
from Enforced Disappearance.
It was reported that one case of extraordinary rendition, which
occurred in Italy on 17 February 2003, involved an enforced
disappearance for a certain period of time. The Working Group was
informed that this case took place in the context of extraordinary
rendition programmes that were allegedly carried out by the United
States of America together with Egypt, where the person was secretly
imprisoned and reportedly tortured.
End text of letter

NNNN

UNCLASSIFIED
ER2175

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UNCLAS SECTION 01 OF 02 GENEVA 001681
DEPT FOR IO/SHA, DRL/MLA
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: CHR 57: GUIDANCE ON DRAFT RESOLUTION ON
INVOLUNTARY DISAPPEARANCES
REF: A) SECSTATE 60693 B) GENEVA FAX NO. 191 DATED
4/19/01
1.

THIS IS CHR DEL CABLE NUMBER 102.

2. THE FRENCH DELEGATION, AS SPONSORS OF ABOVE-REFERENCED
RESOLUTION, CIRCULATED REV. 3 AT DRAFTING SESSION THIS
MORNING. REV. 3 PROPOSES (A) THE CREATION, AT NEXT YEAR'S
UNCLASSIFIED
PAGE 02
GENEVA 01681 01 OF 02 191736Z
UNHRC, OF "AN INTER-SESSIONAL OPEN ENDED WORKING GROUP
WITH THE MANDATE TO ELABORATE A DRAFT LEGALLY BINDING
NORMATIVE INSTRUMENT FOR THE PROTECTION OF ALL PERSONS FROM
ENFORCED DISAPPEARANCES" (OP 11) AND (B) THE APPOINTMENT OF
"AN INDEPENDENT EXPERT WITH THE MANDATE TO PREPARE AN
EXHAUSTIVE EXAMINATION OF THE EXISTING LEGAL NORMS AND OF THE
MOST RECENT EVOLUTIONS IN THE INTERNATIONAL AND REGIONAL
FRAMEWORK IN THIS MATTER."
(OP12). THIS IS VIEWED BY THE
GRULAC AS A "COMPROMISE" FROM THEIR ORIGINAL POSITION, WHICH
CALLED FOR THE CREATION OF A WORKING GROUP, BUT NOT THE
APPOINTMENT OF AN EXPERT. THE NOTION OF AN INDEPENDENT
EXPERT WAS PROPOSED BY THE NEW ZEALAND AND AUSTRALIAN
DELEGATIONS AS AN ALTERNATIVE TO THE CREATION OF AN

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
ER2176

INTER-SESSIONAL OPEN-ENDED WORKING ~LA~IFIfm) CURRENT
DRAFT COMBINES BOTH CONCEPTS, AND THEREFORE PRESENTS AN EVEN
MORE PROBLEMATIC RESOLUTION THAN THE ONE ORIGINALLY
INTRODUCED BY THE FRENCH, 1. E., A RESOLUTION THAT CREATES A
WORKING GROUP TO DRAFT TREATY LANGUAGE ON DISAPPEARANCES
WHILE, AT THE SAME TIME, AN INDEPENDENT EXPERT IS IN THE
PROCESS OF EXAMINING THE NEED FOR ADDITIONAL INSTRUMENTS.
THIS COUNTER-INTUITIVE PROBLEM WAS NOTED BY SEVERAL
DELEGATIONS, INCLUDING INDIA, WHICH POINTED OUT THAT THERE IS
THE POSSIBILITY THAT THE EXPERT MAY CONCLUDE THAT
INTERNATIONAL LAW IS SUFFICIENTLY WELL-DEVELOPED AND DOES NOT
REQUIRE ANOTHER TREATY OR TREATY BODY. THE FRENCH DELEGATION
ADMITTED THAT THE LATEST APPROACH WAS NOT THE MOST
"CARTESIAN" SOLUTION, BUT SEEMS TO BE THE BEST WAY TO BRIDGE
THE GAP BETWEEN THE GRULAC AND THOSE OPPOSING THE CREATION OF
THE INTER-SESSIONAL WORKING GROUP.
3.

THE NEW ZEALAND DELEGATION, SUPPORTED BY INDIA, THAILAND,
UNCLASSIFIED

PAGE 03
GENEVA 01681 01 OF 02 191736Z
U . K., NORWAY, PORTUGAL, CANADA, AND EGYPT, OFFERED
(SEE SEPARATE FAX) .
ALTERNATIVE LANGUAGE FOR OP 11 AND OP 12
ITS PROPOSAL WOULD APPOINT AN INDEPENDENT EXPERT TO EXAMINE
EXISTING LAW ON DISAPPEARANCES AND TO REPORT HIS/HER FINDINGS
TO THE COMMISSION TO ENABLE STATES TO CONSIDER THE PROPOSAL
FOR AN INTERSESSIONAL OPEN-ENDED WORKING GROUP. AS A
FALLBACK, THE U. K. PROPOSED AMENDING REV. 3 TO READ THAT "IF
APPROPRIATE, IN LIGHT OF THE FINDINGS OF THE INDEPENDENT
EXPERT," THE COMMISSION WOULD CREATE AN INTER-SESSIONAL OPEN
ENDED WORKING GROUP." THESE SUGGESTIONS WERE MET WITH
HOSTILITY BY ARGENTINA, WHICH SAID THAT IT WAS THROUGH
NEGOTIATING, THAT REV. 3 WAS AS FAR AS IT WAS PREPARED TO GO,
AND THAT IT WOULD PREFER TO TAKE THIS LANGUAGE TO A VOTE AS
AN ALTERNATIVE TO FURTHER CONCESSIONS. GUATEMALA AND URUGUAY
JOINED ARGENTINA IN THE SUBSTANCE, THOUGH NOT THE TONE, OF
ITS INTERVENTION.
4.
SEVERAL EUROPEAN COUNTRIES, INCLUDING SWITZERLAND,
NORWAY, PORTUGAL, AND LICHTENSTEIN EXPRESSED CONCERN THAT,
WITHOUT CONSENSUS, THE MANDATE OF THE PROPOSED INTERSESSIONAL
WORKING GROUP WOULD BE DIMINISHED.
5. USDEL MADE POINTS IN REFTEL. AT CLOSE OF THE SESSION,
FRANCE AGREED TO ATTEMPT TO REDRAFT OP 11 AND OP 12 ALONG THE
LINES PROPOSED IN PARA. 1 ABOVE, I.E., SOME COMBINATION OF
AUTHORIZED WORK FOR BOTH THE INDEPENDENT EXPERT AND THE
WORKING GROUP.
6.

THERE APPEARS TO BE LITTLE SUPPORT FOR THE U.S. POSITION

UNCLASSIFIED
ER2177

OF REMOVING ANY REFERENCE TO THE CREATI~JE:A'ISmfl!l1l!:D
UNCLASSIFIED
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GENEVA 01681 01 OF 02 19r'1'-'7-=3'-'6"'Z'-INDEPENDENT EXPERT OR THE WORKING GROUP. \

-.
B5

7 . IN THE ABSENCE OF ATTEMPTING TO STRIVE TOWARD CONSENSUS
BASED ON THE NEW ZEALAND TEXT, IT IS LIKELY THAT THE GRULAC
WILL SUCCEED IN PASSING A TEXT CALLING FOR THE CREATION OF
BOTH THE WORKING GROUP AND THE INDEPENDENT EXPERT. GUATEMALA
DELEGATION ADVISED USDEL THAT THE CREATION OF THE WORKING
GROUP WAS A PRIORITY, BECAUSE IT IS SEEN AS A NECESSARY FIRST
STEP TOWARD ITS FULFILLMENT OF PEACE AGREEMENT OBLIGATIONS TO
RATIFY AN INTERNATIONAL TREATY ON DISAPPEARANCES. ARGENTINA
AND GUATEMALA NOTED THAT NO EXISTING INTERNATIONAL TREATY OR
TREATY BODY (INCLUDING THE INTER-AMERICAN CONVENTION ON
DISAPPEARANCES) IS SUFFICIENTLY COMPREHENSIVE, AND HENCE THE
NEED FOR THE UN TO DO WHAT THEIR OWN GOVERNMENTS OR REGIONAL
ORGANIZATIONS SO FAR HAVE FAILED TO ACCOMPLISH.
UNCLASSIFIED
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DEPT FOR IO/SHA, DRL/MLA
E.O. 12958: N/A

UNCLASSIFIED
ER2178

TAGS: PHUM, UNHRC-1
UNCLASSIFIED
SUBJECT: CHR 57: GUIDANCE ON DRAFT RESOLUTION ON
INVOLUNTARY DISAPPEARANCES
8 . IT IS NOT CLEAR WHETHER ANY MEMBER WOULD CALL FOR A VOTE
ON THE RESOLUTION AS PRESENTLY CONFIGURED.
INDIAN DCM TALKED
TO USDEL AFTER THE MEETING TO EXPRESS HIS CONCERNS WITH THE
DIRECTION OF THE RESOLUTION, AND WISHED TO DISCUSS WHETHER
OUR DELEGATIONS COULD COLLABORATE ON SOME AMENDMENT TO THE
GRULAC FORMULATION. AUSTRALIAN AND CANADA BOTH ASKED USDEL
IF WE INTENDED TO CALL FOR A VOTE.
(COMMENT:
IT APPEARS TO
USDEL THAT A NUMBER OF MEMBERS ARE UPSET WITH THE DIRECTION
UNCLASSIFIED
PAGE 02
GENEVA 01681 02 OF 02 191737Z
THE GRULAC IS TAKING THIS RESOLUTION, BUT THAT NONE OF THEM
WISH TO CALL FOR A VOTE, AND ARE HOPING THAT USDEL TAKES THE
FIRST STEP OF CALLING FOR A VOTE, AND VOTING NO.
IF USDEL
CALLS FOR A VOTE, THEN IT IS LIKELY THAT MEMBER DELEGATIONS
OPPOSED TO THE CREATION OF THE INTER-SESSIONAL WORKING GROUP
WOULD ABSTAIN. END COMMENT)
9. ACCORDING TO CANADA, NEW ZEALAND, AUSTRALIA, JAPAN, INDIA,
THAILAND, U.K., GERMANY, AND NORWAY ARE OPPOSED TO OP 11 AND
OP 12 (INDEPENDENT EXPERT AND WORKING GROUP, RESPECTIVELY).
CANADA SUGGESTED THAT THE US SHOULD CALL FOR A VOTE.
IF
USDEL CALLS FOR A VOTE, CANADA WOULD ABSTAIN, AND THE OTHERS
WOULD PROBABLY ABSTAIN OR VOTE NO -- FOR ABOUT 20 ABSTENTIONS
AND NO VOTES -- PER CANADA'S COUNT, WITH SOME DEVELOPING
COUNTRIES JOINING THE ABSTAINERS. THIS COULD MEAN THAT THE
WORKING GROUP IS EFFECTIVELY DEPRIVED ITS MANDATE, SINCE,
EVEN IF THE THE RESOLUTION PASSES, THE WORKING GROUP STILL
NEEDS TO OPERATE BY CONSENSUS. IT IS UNCLEAR WHY CANADA IS
RELUCTANT TO CALL FOR THE VOTE ITSELF.
10. USDEL REQUESTS GUIDANCE ON WHETHER IT CAN JOIN NEW
ZEALAND PROPOSAL FOR JUST THE CREATION OF AN INDEPENDENT
EXPERT. USDEL RECOMMENDS THAT WE BE GIVEN THE LATITUDE TO
SEEK CONSENSUS. AS NOTED, THE MOST LIKELY OUTCOME IN GENEVA
IS THE REJECTION OF THE NEW ZEALAND FORMULATION. OUR ABILITY
TO EFFECTIVELY INFLUENCE THE OUTCOME OF NEGOTIATIONS IS
SUBSTANTIALLY DIMINISHED IF WE CANNOT PROVIDE SUPPORT TO NEW
ZEALAND PROPOSAL.
11 .

USDEL ALSO REQUESTS GUIDANCE ON WHETHER WE SHOULD CALL
UNCLASSIFIED

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GENEVA 01681 02 OF 02 191737Z
FOR A VOTE ON OP11 AND OP 12 (IF LANGUAGE REMAINS UNCHANGED
IN SUBSTANCE FROM REV. 3), AND WHETHER WE SHOULD CALL FOR A

UNCLASSIFIED
ER2179

VOTE ON THE RESOLUTION. IF REFEREN~crt,AJ8St~GROUP
CAN BE REMOVED FROM OP 12, THEN WE DO NOT NEED TO OPPOSE THIS
OPERATIVE PARAGRAPH. USDEL WOULD APPRECIATE FLEXIBILITY TO
TRY AND WORK OUT APPROPRIATE AMENDMENTS WITH OTHER
DELEGATIONS (I.E., THE NEW ZEALAND OPTION) SHOULD THAT COURSE
PRESENT ITSELF.
MOOSE
UNCLASSIFIED

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UNCLAS GENEVA 000693
STATE FOR IO-RHS, DRL-MLGA, L-HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-l
SUBJECT: COMMUNICATION FROM THE UN COMMITTEE AGAINST
TORTURE FOR THE UNITED STATES OF AMERICA
1. Mission has received a communication from the United
Nations Committee against Torture for the United States of
America. This communication is number 4 on the Geneva 2006
Communications Log.
2. Begin text of letter. Mr. Ambassador, In my capacity as
Rapporteur for Follow-up on Conclusions and Recommendations
of the United Nations Committee against Torture for the
United States of America, I refer to the examination of the
second periodic report of United States of America
(CAT/C/48/Add.3/Rev.l). The Committee, in its Conclusions
and Recommendations (CAT/C/USA/CO/2), requested the State
Party to provide within one year information on the specific
recommendation identified by the Committee in paragraph 43
(paragraphs 16, 20, 21, 22, 24, 33, 34 and 42 of the
mentioned Conclusions and Recommendations) .
The Government of the United States of America provided
the information requested in September 2007
(CAT/C/USA/CO/2/Add.l). The Committee thanks the State party
for its cooperation and presents its comments on the
responses provided in the framework of the follow-up
procedure, as part of the procedure through which the
Committee monitors the implementation of specific
recommendations that are serious, protective and may be
implemented within one year as well of the continuous
dialogue with States parties.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE lD: 22 JUN 2009 200706444

UNCLASSIFIED
ER2181

UNCLASSIFIED
With regard to the recommendation made in paragraph 16,
the Committee welcomes the information that relevant
authorities of the State party, including military, "as a
matter of good administration practice, generally maintain
appropriate records on persons detained by them. Such
records would generally include the information mentioned in
the Committee's recommendation". The Committee considers
that maintaining records of persons detained is mandatory as
it constitutes a basic guarantee, particularly in order to
prevent torture, for all persons deprived of their liberty
(paragraph 13 of the General Comment no. 2 on the
implementation of article 2 by States parties, adopted on 23
November 2007). The Committee does not make any distinction
between categories of persons deprived of their liberty and
i t considers that all of them are protected by this
guarantee. The Committee reiterates that the State party
should adopt the necessary measures to establish the
obligation of registration of all persons deprived of
liberty.
I would be grateful if you could clarify in which
cases the mentioned authorities do not maintain appropriate
records on persons detained.
Is the State party considering
adopting any legislative measures to ensure that such
registration is an obligation for all authorities, including
military, and that i t is not only carried out as a matter of
good administrative practice?
While the Committee welcomes the information on
paragraph 20 that "as a matter of policy, the United States
Government does not transfer persons to countries where i t
determines that it is more likely than not that they will be
tortured (and that this) policy applies to all components of
the government including the intelligence agencies", the
Committee wishes to remind the State party that the guarantee
of non refoulement is a normative determination, of article 3
of the Convention, of the absolute, and jus cogens,
prohibition of torture. It must be enforced effectively by
the authorities of the State Party as a matter of law in any
territory subject to its de jure or de facto control. No
provision of the Convention limits the State territorial
scope to the "territory of sovereignty" of State parties.
It
is reasonable to consider that the most adequate way to
implement the assurance of non refoulement is the
establishment of adequate judicial mechanisms to challenge
all refoulement decisions. The Committee reiterates the
recommendation to introduce such judicial control and would
appreciate if the State party could indicate any measure
taken in this regard.
As to the recommendation made in paragraph 21, the

UNCLASSIFIED
ER2182

Committee welcomes the information received on the policy and
practice of the Government of the United States, when relying
on "diplomatic assurances". In particular, the Declaration of
the Arnbassador-at-large for War Crimes, Mr. Clint Williamson,
clarifies the motives and details of the practice. However,
the Committee regrets the absolute confidentiality of such
procedure and the lack of information on cases where
assurances have been provided, which does not enable the
Committee to monitor these arrangements and the de facto
implementation of the Convention's provisions by the State
party.
It also recalls that an adequate judicial mechanism
for reviewing, in last instance, the sufficiency and
appropriateness of diplomatic assurances in any applicable
case, would have to be established. This principle also
constitutes the basic of the decision adopted by the United
States District Court for the Middle District of Pennsylvania

UNCLASSIFIED

in the case "Sameh Sami S. Khouzam v. Thomas H. Hogan et al."
(3:CV-07-0992; Judge Vanaskie), of 22 August 2007. Please
indicate, in light of the above, any steps that might have
been taken to consider the establishment of a judicial
mechanism to this effect. Considering the confidential
nature the State party has given to the procedure, please
describe the post-return monitoring machinery in place on a
generic and non-specific basis. Has the State party received
information on any assurances that have not been honored and
what appropriate actions were taken in such cases by the
State party?
With regard to the recommendation made in paragraph 22,
the Committee reiterates its interpretation of the scope of
obligations imposed on State Parties, in time of peace as
well as in time of armed conflict. All the guarantees that
must be applied to all persons deprived of their liberty
referred to previously (paragraph 13 of the General Comment
no. 2) must also be applied to detainees in Guantanamo and,
among these, "the right promptly to receive independent legal
assistance, independent medical assistance, and to contact
relatives, the need to establish impartial mechanisms for
inspecting and visiting places of detention and confinement,
and the availability ( ... ) of judicial and other remedies
that will allow them to have their complaints promptly and
impartially examined, to defend their rights, and to
challenge the legality of their detention or treatment".
Taking also into account the rules on evidence established by
the Military Commissions Act of 2006, i t is also relevant to
recall that it is absolutely forbidden by article 15 of the
Convention to invoke, as evidence in any proceedings, any
statement which is established to have been made as a result

UNCLASSIFIED
ER2183

of torture, except against a person accused of torture as
evidence that the statement was made.
That means that in a
fair process, a person has the inderogable right to prove
that evidence against him or her was obtained under torture.
The Committee has closely followed the successive decisions
of the Supreme Court of the United States to protect the
constitutional rights and liberties of detainees in
Guantanamo.
It reiterates the recommendation that the State
Party must provide access to a fair judicial process to the
Guantanamo detainees, to comply with its obligations under
the Convention.

UNCLASSIFIED

In respect of the recommendations made in paragraph 24,
the Committee takes note with satisfaction of the progress
made in order to eradicate any interrogation technique that
amounts to torture by any agent of United States Government.
The Committee reiterates that in this context, the use of
interrogation techniques amounting to torture, such as those
identified by the Committee, must be forbidden to all
"components of the Government, including intelligence
agencies".
However, it seems that some special legal
exception would be reserved to these intelligence agencies as
to the use of prohibited techniques, therefore derogating
from the principle of absolute prohibition of torture.
Please clarify the objective of the presidential veto of the
2008 Intelligence Authorization Act which would have applied
to the Army Field Manual on interrogation to all "components
of the Government, including intelligence agencies", thus
prohibiting torture without any exception. Does this veto
indicate that certain agencies outside of the Department of
Defense, such as the CIA, may use prohibited acts, including
interrogation such as methods involving sexual humiliation,
"water boarding", "short shackling" and using dogs to induce
fear, which the Committee has clearly indicated as
constituting torture or cruel, inhuman or degrading treatment
or punishment?
Concerning the recommendations made in paragraphs 33 and
34, the Committee thanks the State party for the information
submitted.
However, the Committee considers that the United
States should consider ratifying the Convention on the Rights
of the Child (as all other members of the international
community have, except Somalia and the United States) in
order to accept the conventional obligation to prohibit the
sentencing of juveniles to life imprisonment without the
possibility of parole.
With regard to the recommendation made in paragraph 42,
the Committee thanks the State party for the information
submitted.
However, the Committee considers that the next

UNCLASSIFIED
ER2184

per:i.od:i.c report, wh:i.ch the Un:i.ted States w:i.ll have to present
to the Comm:i.ttee on 19 November 2011, should :i.nclude all the
deta:i.led stat:i.st:i.cal data requested :i.n the conclud:i.ng
observat:i.ons. Wh:i.le tak:i.ng note of the responses of the
State Party to the recommendat:i.on of the establ:i.shment of a
federal database on the :i.mplementat:i.on of the prov:i.s:i.ons of
the Convent:i.on, the Comm:i.ttee re:i.terates th:i.s recommendat:i.on
as :i.t would allow the State party to prov:i.de the Comm:i.ttee
w:i.th :i.nformat:i.on :i.t was unable to prov:i.de. W:i.thout the
deta:i.led stat:i.st:i.cal data as requested, the Comm:i.ttee w:i.ll
not be able to adequately mon:i.tor the full :i.mplementat:i.on of

UNCLASSIFIED

the State party's obl:i.gat:i.ons under the Convent:i.on when
cons:i.der:i.ng the next report of the Un:i.ted States of Amer:i.ca.
The Comm:i.ttee looks forward to pursu:i.ng the construct:i.ve
d:i.alogue started w:i.th the author:i.t:i.es of the Un:i.ted States of
Amer:i.ca on the :i.mplementat:i.on of the Convent:i.on. In th:i.s
context, the Comm:i.ttee seeks to rece:i.ve your wr:i.tten response
to th:i.s request for further clar:i.f:i.cat:i.ons.
Accept, Mr. Ambassador, the assuranCes of my h:i.ghest
cons:i.derat:i.on. Fernando M. Mar:i.no, Rapporteur for follow-up
on Conclus:i.ons and recommendat:i.ons for the Un:i.ted States of
Amer:i.ca Comm:i.ttee aga:i.nst Torture. End text of letter.
TICHENOR
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UNCLASSIFIED
ER2185

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194539
SOURCE: CBLEXCLS.001675
DRAFTED BY: L/HRR:RKHARRIS -- 10/20/2005 202-647-4035
APPROVED BY: IO : MLAGON
IO/SHA:, TJOHNSON, DRL:, JGINSBURG
------------------4FC43B 202250Z /38
o 202240Z OCT 05
FM SECSTATE WASHDC
TO USMISSION GENEVA IMMEDIATE
UNCLAS STATE 194539
E.O. 12958: N/A
TAGS: AORC, PHUM
SUBJECT: SUBMISSION OF PERRIDIC REPORT OF THE UNITED
STATES OF AMERICA TO THE HUMAN RIGHTS COMMITTEE
1. On Friday morning, October 21, Mission is instructed to
transmit the
attached two letters to the Chairman of the Human Rights
Committee and
one letter to the Chairman of the Committee Against Torture,
conveying: (A) the U.S. government,s combined second and
third periodic
report of its implementation of the International Covenant on
Civil and
Political Rights (under cover of the of the letter at para
(3) ;

(B) to the Human Rights Committee a revised Annex to the
USG,s
report on.the Convention Against Torture discussing certain
persons

in the custody of the U.s. Armed Forces (under cover of the
letter
at para (4); and (C) to the Committee Against Torture, that
same revised
Annex to the USG,s report on the Convention Against Torture
discussing
certain persons in the custody of the U.S. Armed Forces
(under cover
of the letter at para (5). For reasons of protocol, Mission

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE m: 22 JUN 2009 200706444

UNCLASSIFIED
ER2186

is
UNCLASSIFIED
asked to deliver the letter and package to the Committee
Against
Torture (referenced in para (5» prior to delivery of the
packages
to the Committee on Human Rights.
2. Given the length of the three attachments described
above, these
texts will not be conveyed in cable form, but electronically
will be
sent to the Mission from L/HRR on Thursday evening, October
20.
Following transmitteal, Mission is required to send to the
Department (IO/SHA
and L/HRR) copies of signed transmittal letters.
3. First Letter to HRC (transmitting the report)
Ms. Christine Chanet
Chairman
Human Rights Committee
Office of the UN High Commissioner for Human Rights
Palais Wilson
CH-1211 Geneva 10
Dear Madame Chairman:
I have the honor to transmit to you the combined second
and third
periodic report of the United States of America, with
annexes, provided
under Article 40 of the International Covenant on Civil and
Political Rights.
As you requested in your letter of July
23, 2005,
the report contains a discussion of U.S. implementation of
the Patriot Act.
The Government of the United States will be pleased to answer
further
questions from the Committee on the basis of this report, in
keeping
with the Committee,s rules and standard practice.
Please allow me
to express once again the longstanding commitment of the
United States
to the protection and promotion of human rights and to the
work
of the Committee.

UNCLASSIFIED
ER2187

Yours very truly,

UNCLASSIFIED

Kevin E. Moley
Ambassador

4. Second Letter to HRC (transmitting updated detainee CAT
Annex)
~s. Christine Chanet
Chairman
Human Rights Committee
Office of the UN High Commissioner for Human Rights
Palais Wilson
CH-1211 Geneva 10

Dear Madame Chairman:
In a letter that I had the honor to send you today, the
United
States of America transmitted to the Committee on Human
Rights the
combined second and third periodic report of the United
States of
America, provided under Article 40 of the International
Covenant
on Civil and Political Rights. Although not part of the U.S.
report,
as descr~ed more fully in paragraph 129 of the U.S. report,
lam
pleased in this letter to enclose as a matter of courtesy a
separate
description relating to individuals under the control of the
U.S.
Armed Forces captured during operations against the Taliban
Al-Qaida,
and their affiliates and supporters and captured during
military operations
in Iraq. This information updates information provided in
May of this year
by the United States to the Committee Against Torture.
We hope that this information will be responsive to the
concerns
you expressed in your July 23, 2005 letter.
Yours very truly,
Kevin E. Moley
Ambassador8

UNCLASSIFIED
ER2188

UNCLASSIFIED

5. Letter to the Committee Against Torture (transmitting
updated detainee CAT Annex)
Professor Fernando Marino Menendez
Chairman
Committee Against Torture
Office of the UN High Commissioner for Human Rights
Palais Wilson
rue des Pquis 52
1202 Geneva
Dear Mr. Chairman:
As you recall, in May of this year, the United states
conveyed to the Committee Against Torture (the &CommitteeS)
its Second Periodic Report on measures giving effect to its
undertakings under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and on
other information of interest to the Committee. By letter of
May 21, 2004, the Committee requested &updated information
concerning the situation in places of detention in Iraq.S
In Annex 1 of the May 2005 U.S, report, the United States
provided a discussion and related materials relevant to its
detention of individuals under the control of U.S. Armed
forces in Iraq captured during military operations and
similar information with respect to detentions of individuals
under the control of U.S. Armed Forces in Afghanistan and
Guantanamo Bay, Cuba.
In light of the Committee,s continuing interest in these
matters, I have.the honor to transmit to you an update of the
information contained in Annex 1. Please allow me to express
once again the longstanding commitment of the United States
to the protection and promotion of human rights and to the
work of the Committee.
Yours very truly,
Kevin E. Moley
AmbassadorS
6.

Press Guidance

&L Press Guidance October 21, 2005
United States Periodic Report on the
International Covenant on Civil and Political Rights

UNCLASSIFIED
ER2189

Q: Is it true that the United States recently filed a report
on its implementation of the International Covenant on Civil
and Political Rights? What is this report, and why did the
United States produce it?

UNCLASSIFIED

A:
z
On October 21, 2005, the United States submitted to the
Human Rights Committee its combined second and third periodic
report on its implementation of the International Covenant on
Civil and Political Rights (&ICCPR8 or the &Covenant8).
The report is a required and routine update of the Initial
Report, which the United States filed in July 1994.
z
The new report describes recent legislation, caselaw,
policies, programs and other relevant information to update
our Initial Report.
z
The report is compr~hensive and covers a very wide
range of subjects, including law and practice in the United
States to protect freedoms of speech, conscience, religion,
association, peaceful assembly, non-discrimination, life,
personal freedom and security. It also addresses liberty of
movement, due process and fair judicial procedures, and
equality under the law. The report also covers the rights to
be free from arbitrary arrest or detention, torture, cruel
inhuman or degrading treatment or punishment, and slavery or
involuntary servitude.
z
The report also updates what is known as the &core
document,8 which provides an overview of census information
about the United States, its general political structure, and
the general framework for the protection of human rights
within the United States.
z
The Human Rights Committee will post the report on its
website in accordance with its standard practice. The
Department of State will also post the report on its own
website.
z
The United States looks forward to presenting the
report orally before the Human Rights Committee at one of its
future sessions.
Core themes to emphasize:
z
Through an extensive inter-agency process we have
produced a thorough and comprehensive report, consistent with
our reporting obligations under the ICCPR.
z
We believe the report presents the Committee with a
clear picture of how U.S. law and institutions promote and
enforce the human rights contained in the ICCPR. We hope
that this record of recent U.S. experience may help other
countries in their efforts to promote and protect human
rights.
z
We look forward to engaging in a dialogue on these

UNCLASSIFIED
ER2190

issues when we present the report orally before the Human
Rights Committee at one of its future sessions.
(Background: Article 40 of the ICCPR provides that all
States Parties shall submit to the Human Rights Committee
reports on measures they have taken to implement the treaty.
The Committee, which is charged with reviewing the reports,
is a body of eighteen experts created by the ICCPR.
These
experts, who act in their individual capacities, includes a
U.S. citizen. The report and its annexes are more than 250
pages in length.
)

UNCLASSIFIED

IF ASKED:

Reporting process:
Q.
Isn't it true that the United States is many years
behind schedule in submitting its report? Doesn't that send a
negative signal about the seriousness of its commitment to
preventing torture?

A:
z
The U.S. was behind schedule, but this in no way
reflects our commitment to producing a comprehensive report.
z
The United States is strongly committed to ensuring
that it implements its obligations under the ICCPR.
z
The reporting process is a good way for the United
States to take stock of its efforts and to provide this
information in a transparent manner to its ICCPR treaty
partners.
If needed:
z
The drafting of a comprehensive report on U.S.
implementation of a treaty with the broad scope of the ICCPR
is a complex and ambitious undertaking, which involves
contributions by and coordination among many departments
within the U.S. government.
z
Because of the scope of these undertakings, many
countries in addition to the United States have found it
difficult to submit their treaty reports on time.
z
With respect to national reports on implementation of
the ICCPR, 93 countries are currently overdue in meeting
their reporting requirements.
What happens now that the United States has filed its
Q.
ICCPR report?
A:
z
The Human Rights Committee invites States Parties to
present their reports to the Committee in oral session.
z
The United States, for example, appeared before the
Committee in March of 1995 to explain its Initial Report.
z
The Department of State anticipates that the Committee

UNCLASSIFIED
ER2191

will schedule such a session on the u.s. report in one of its
future sessions.

UNCLASSIFIED

IF ASKED
Treatment of Terrorist Detainees
Q.
Does the u.s. Report discuss the treatment of U.S.
detainees overseas captured during operations against the
Taliban, al-Qaida and their affiliates and supporters or
treatment of detainees in Iraq?
z
The report the United States submitted in May of 2005
on its implementation of the Convention Against Torture
contained a lengthy annex on detentions of individuals under
the control of U.S. Armed Forces in Afghanistan, Iraq and
Guantanamo Bay, Cuba, a description of the investigations
into abuse allegations arising out of these detentions, and a
summary of actions to hold personnel of the U.s. armed forces
accountable under the military justice system when they have
been found to have committed unlawful acts.
That annex also
summarized the mechanisms for reviewing the detention of a
detainee through combatant status review tribunals and annual
administrative review boards, as well as for trying a
detainee by military commissions.
z
By its terms, the ICCPR expressly applies only to
individuals within its (a states Party,s) territory and
subject to its jurisdiction. Thus, it does not impose
obligations on the United States outside of its territory.
Notwithstanding this provision and the fact that these
individuals are being held pursuant to the law or war, the
United States as a matter of courtesy separately provided
information on this subject to the Committee. This material
is not part of the U.s. report.
IF ASKED
Torture
Q.
Does the report discuss the general subject of torture
and cruel, inhuman or degrading treatment or punishment?
A.
z
Yes.
z
The U.s. Government does not permit, tolerate, or
condone torture, or other unlawful treatment of detainees by
its personnel or employees under any circumstances.
z
Article 7 of the ICCPR provides, inter alia, that (n)o
one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
z
The report describes U.s. law and practice on this
subject in the years since the U.s. Initial Report.
o
The report underscores that the United States takes all
allegations of abuse seriously and investigates them.
o
Those people who are found to have committed unlawful

UNCLASSIFIED
ER2192

acts are held accountable as the circumstances warrant.
o
Investigations are thorough and have high priority.
UNCLASSIFIED
z
As this subject is contained in only one of the twenty
seven substantive articles of the ICCPR, a lengthier
discussion of U.S. law and practice on torture and cruel,
inhuman or degrading treatment or punishment can be found in
the May 2005 U.S. Periodic Report on the U.S. implementation
of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
(Note:
Issues related to torture were discussed at greater
length in May 6, 2005 L press guidance available at the time
of the rollout of the U.S. report of its implementation of
the Convention Against Torture and will be attached to the
package sent to PA.)
Drafted:
L/HRR: RHarris
Clearances: IO/SHA: Tjohnson
DRL: JGinsburg
Authorizer: 10: MLagon
RICE

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UNCLASSIFIED
ER2193

ACTION L-OO

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INFO

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UNCLAS

GENEVA 003431

L/UNA BRANCATO, IO - TJOHNSON
E.O. 12958: N/A
TAGS: FR, UNGA, UNHR
SUBJECT: ENFORCED DISAPPEARANCES INTER-SESSIONAL WORKING
GROUP MEETS INFORMALLY; HOMES IN ON ISSUES FOR FORMAL
JANUARY 2004 NEGOTIATIONS
REF: GENEVA 002390 AND PREVIOUS
1.
(U) BEGIN SUMMARY. THE INTER-SESSIONAL WORKING GROUP
HELD "INFORMAL CONSULTATIONS" SEPTEMBER 1-5 PURSUANT TO ITS
COMMISSION ON HUMAN RIGHTS MANDATE TO ELABORATE A LEGALLY
BINDING INSTRUMENT ON ENFORCED DISAPPEARANCES (E. D. ). AT THE
OPENING DAY'S SESSION, THE U.S. UNDERSCORED AND EXPLAINED ITS
PROCEDURAL OBJECTIONS TO HOLDING INFORMAL MEETINGS THAT
UNDULY ACCELERATE NEGOTIATIONS ON LEGAL INSTRUMENTS. U.S.
MADE SELECTIVE INTERVENTIONS THAT FOCUSED HEAVILY ON THE
SUBSTANTIVE CONCERNS PREVIOUSLY IDENTIFIED IN GUIDANCE FROM
STATE AND JUSTICE DEPARTMENTS. U. S. PROCEDURAL OBJECTIONS
FELL LARGELY ON UNWELCOME EARS, WITH NO STATEMENTS (PUBLICLY)
VOICED IN SUPPORT OF THOSE OBJECTIONS. HOWEVER, U. S VIEWS ON
SEVERAL IMPORTANT SUBSTANTIVE ISSUES WERE STRONGLY IN LINE
WITH THOSE OF SEVERAL KEY DELEGATIONS.
INTERESTINGLY, THE
CHAIRMAN AND SEVERAL DELEGATIONS HAVE BEGUN TO ACKNOWLEDGE
OPENLY THAT THE ISSUES RAISED BY THESE NEGOTIATIONS ARE MORE
COMPLEX THAN HAD BEEN PREVIOUSLY ASSUMED. THIS AWARENESS HAS
ALREADY HAD A PERCEPTIBLE MODERATING EFFECT ON SUBSTANTIVE
POSITIONS INITIALLY TAKEN BY SOME DELEGATIONS, INCLUDING KEY
LATIN DELEGATIONS SUCH AS ARGENTINA AND MEXICO. THOSE ISSUES
ON WHICH VIEWS STILL REMAIN FAR FROM CONSENSUS ARE THE
FOLLOWING: THE FORM AND MANDATE OF AN INTERNATIONAL

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
ER2194

MONITORING BODY; THE APPLICABILITY OF INTERNATIONAL
UNCLASSIFIED
HUMANITARIAN LAW (IHL) IN PROTECTING AGAINST E.D.;
NON-DEROGABILITY OF TREATY OBLIGATIONS TO BE ASSUMED BY
STATES PARTIES; AND THE FORM OF THE INSTRUMENT (CONVENTION
VS. PROTOCOL). KEY ISSUES ON WHICH A FAVORABLE (FOR THE
U. S.) CONSENSUS APPEARS TO BE EMERGING ARE: THE DEFINITION OF
E.D.; THE DEATH PENALTY; MILITARY AND SPECIAL TRIBUNALS;
STATUTES OF LIMITATIONS (S/L); NON-STATE ACTORS; AMNESTIES,
PARDONS, AND PROSECUTORIAL IMMUNITIES; AND TREATY
RESERVATIONS. THE NEXT ROUND OF NEGOTIATIONS WILL TAKE PLACE
OVER A TWO-WEEK PERIOD FROM 12-23 JANUARY 2004, WHERE THE
CHAIRMAN HOPES TO REACH AGREEMENT ON THE TEXTS OF AS MANY
DRAFT ARTICLES FOR THE E.D. INSTRUMENT AS POSSIBLE. THE
CHAIRMAN IS PREPARING A DRAFT WORKING TEXT OF SUCH ARTICLES
THAT WILL BE DISTRIBUTED TO WORKING GROUP MEMBERS ON/ABOUT
DECEMBER 1. END SUMMARY.
2. (U) AS ANTICIPATED IN REFTEL, THE DISCUSSIONS BEGAN WITH A
FULL EXCHANGE OF VIEWS ON THE REMAINING ISSUES THAT COULD
NOT BE REACHED AT THE JANUARY 2003 OPENING ROUND OF
NEGOTIATIONS (SEE PARAS 3 AND 4 BELOW), NAMELY: THE NATURE
AND FUNCTIONS OF AN INTERNATIONAL MONITORING MECHANISM; THE
FORM THE NEW INSTRUMENT SHOULD TAKE (I.E., CONVENTION VS.
PROTOCOL), INCLUDING RELATED LEGAL AND OTHER IMPLICATIONS;
AND THE INSTRUMENT'S FINAL CLAUSES -- OF PARTICULAR CONCERN,
A RESERVATIONS CLAUSE. DISCUSSION THEN RESUMED WITH FURTHER
ANALYSIS OF THE PREVIOUSLY DEBATED "CHAPTERS" IN THE
CHAIRMAN'S "KEY ELEMENTS" DISCUSSION PAPER (SEE REPORTING AT
PARAS 5-13 BELOW).
(THAT PAPER WAS FIRST DISTRIBUTED IN JULY
2003 AND RE-DISTRIBUTED DURING THE SEPTEMBER CONSULTATIONS) .
3. (U) INTERNATIONAL MONITORING MECHANISM. MOST SPEAKERS
STRONGLY FAVORED INCLUDING AN INTERNATIONAL FOLLOW-UP BODY
WITHIN THE FRAMEWORK OF THE NEW INSTRUMENT. THE U.S.
INTERVENED TO RESERVE ITS POSITION AND TO SUGGEST THAT THIS
ISSUE IS ONE BEST LEFT FOR LATER EXAMINATION FOLLOWING
NEGOTIATION OF SUBSTANTIVE STATE OBLIGATIONS YET TO BE
DETERMINED. THIS VIEW WAS ECHOED BY SEVERAL OTHER
DELEGATIONS, SUCH AS CANADA, JAPAN, AND THE UK. DESPITE
CALLS BY SOME DELEGATIONS (SUCH AS SWITZERLAND) FOR AN
INTRUSIVE MONITORING REGIME (SUCH AS THE TORTURE CONVENTION'S
OPTIONAL PROTOCOL'S "ANYTIME-ANYWHERE" SITE VISIT AUTHORITY),
THE WORKING GROUP CHAIRMAN VOICED HIS INTENTION NOT TO
PRODUCE AN INSTRUMENT WITH SUCH A CONTROVERSIAL FEATURE. AT
THE SAME TIME, THE CHAIR MADE CLEAR HIS STRONG PREFERENCE FOR
AN INTERNATIONAL MECHANISM WHOSE MOST IMPORTANT FUNCTION
WOULD BE TO INQUIRE IMMEDIATELY WITH THE AFFECTED STATE
FOLLOWING A CREDIBLE REPORT OF AN ALLEGED ENFORCED
DISAPPEARANCE WITHIN ITS TERRITORY. DEBATE OVER WHETHER TO

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CREATE A NEW MONITORING MECHANISM OR TO UTILIZE AN EXISTING
ONE (SUCH AS THE HUMAN RIGHTS COMMITTEE) QUICKLY LED TO
DISCUSSION OF IMPORTANT SUBSIDIARY ISSUES. AMONG THEM:
WHETHER THE HUMAN RIGHTS COMMITTEE (HRC) POSSESSES THE
NECESSARY MANDATE AND FUNDING TO EXAMINE ACTS OF FORCED
DISAPPEARANCE; AND WHETHER THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS (ICCPR), WHICH CREATED THE HRC,
WOULD NEED TO BE AMENDED IN ORDER TO GIVE NEW E.D.
RESPONSIBILITIES TO THE HRC. MOST DELEGATIONS AND THE
CHAIRMAN ARE CURRENTLY INCLINED TOWARDS USING THE HUMAN
RIGHTS COMMITTEE AS THE FOLLOW-UP MECHANISM, THOUGH THIS
ISSUE REMAINS FAR FROM RESOLVED.

UNCLASSIFIED

4.
(U) INTERNATIONAL MONITORING MECHANISM (CONTINUED). LATE
IN THE AFTERNOON OF THE FINAL DAY, THE WORKING GROUP RECEIVED
A LEGAL OPINION AUTHORED BY RALPH ZACKLIN OF THE UN
HEADQUARTERS LEGAL OFFICE. THAT OPINION CONCLUDED THAT USING
THE E.D. TREATY TO TASK NEW MONITORING DUTIES TO THE HRC
COULD PRESENT COMPLEX AND "SERIOUS LEGAL OBSTACLES" AS WELL
AS "RAISE SUBSTANTIAL ADMINISTRATIVE AND FINANCIAL ISSUES".
THIS LEGAL OPINION IS SURE TO HAVE A SOBERING EFFECT ON THE
WORKING GROUP'S FUTURE NEGOTIATIONS OF THE INTERNATIONAL
MONITORING MECHANISM ISSUE, INCLUDING THE RELATED ISSUE OF
WHETHER THE NEW INSTRUMENT SHOULD BE ADOPTED IN THE FORM OF A
PROTOCOL TO THE ICCPR OR AS AN ENTIRELY NEW CONVENTION.
5. (U) TREATY RESERVATIONS CLAUSE. THIS ISSUE HAS
LONG-STANDING AND INSTITUTIONAL INTEREST TO THE DEPARTMENT.
THE US UNDERSCORED THE IMPORTANCE OF RESERVATIONS CLAUSES AS
TOOLS THAT CAN ASSIST ALL STATES (PARTICULARLY FEDERAL STATES
SUCH AS THE U.S.) IN DECIDING WHETHER TO BECOME PARTIES TO A
TREATY REGIME.
IN SUPPORT OF OUR POSITION, THE U.S. DREW THE
WORKING GROUP'S ATTENTION TO THE TEXT OF THE INTERNATIONAL
LAW COMMISSION'S (ILC) 1997 PRELIMINARY CONCLUSIONS IN WHICH
THE ILC SAID THAT RESERVATIONS CLAUSES WERE SUITABLE FOR ALL
NORMATIVE MULTILATERAL TREATIES, "INCLUDING TREATIES IN THE
AREA OF HUMAN RIGHTS." NOTWITHSTANDING ARGENTINA'S
IMPASSIONED PLEA TO BAN ANY RESERVATIONS TO THE NEW
INSTRUMENT, THE CHAIRMAN STATED HIS FIRM VIEW THAT BARRING
RESERVATIONS WOULD PREVENT COUNTRIES FROM JOINING THE TREATY
REGIME, PARTICULARLY STATES THAT NEED RESERVATIONS TO AVOID
CONSTITUTIONAL OR OTHER DOMESTIC LAW IMPEDIMENTS IF THEY
BECAME PARTIES.
SWITZERLAND (SPEAKING AS A FEDERAL STATE)
ALSO ANNOUNCED ITS SUPPORT FOR A RESERVATIONS CLAUSE.
ALTERNATIVELY, THEY SAID, SILENCE ON THIS ISSUE WOULD THEN
ALLOW THE VIENNA CONVENTION ON THE LAW OF TREATIES TO HAVE
ITS EFFECT. MEXICO JOINED THE BANDWAGON, CALLING
RESERVATIONS A "NECESSARY EVIL". SOUTH AFRICA AND THE UK
SAID ALLOWING RESERVATIONS WAS THE "PRAGMATIC" THING TO DO.

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6. (U) DEFINITION OF "ENFORCED DISAPPEARANCE". THERE WERE
UNCLASSIFIED
SHARPLY DIVERGENT AND DIFFICULT TO RECONCILE VIEWS INITIALLY
EXPRESSED ON THIS ISSUE.
CONSIDERABLE ATTENTION CENTERED ON
WHETHER TO ADOPT IN FULL (OR TO BUILD UPON) THE DEFINITION OF
ENFORCED DISAPPEARANCE FOUND IN THE ROME STATUTE TO THE
INTERNATIONAL CRIMINAL COURT (ICC) OR THE DEFINITION FOUND IN
THE 1998 DRAFT CONVENTION ON E.D.
AS THE DEBATE EVOLVED, A
STRICT ROME STATUTE APPROACH BEGAN TO FALL INCREASINGLY INTO
DISFAVOR. THIS WAS BECAUSE, IF THE ROME STATUTE APPROACH
WERE TO BE FULLY APPLIED, ENFORCED DISAPPEARANCE WOULD ONLY
BE PUNISHED "WHEN COMMITTED AS PART OF A WIDESPREAD AND
SYSTEMATIC ATTACK DIRECTED AGAINST ANY CIVILIAN POPULATION"
(HENCE, ONLY WHEN IT RISES TO THE LEVEL OF A VIRTUAL "CRIME
AGAINST HUMANITY"). THIS APPROACH WAS ULTIMATELY REGARDED
AS UNDULY NARROW. U. S. TALKING POINTS ON ALL ISSUES RELATED
TO THE DEFINITION OF E.D. WERE DEPLOYED.
THE U.S. JOINED
SEVERAL OTHER DELEGATIONS WHO OPPOSED A "WIDESPREAD AND
SYSTEMATIC" APPROACH (E. G., ARGENTINA, CANADA, FRANCE, AND
MEXICO). THE U.S. SUPPORTED CANADA'S, CHINA'S AND SPAIN'S
APPEALS TO PERMIT REASONABLE DETENTION OF SUSPECTED CRIMINALS
FOR LAW ENFORCEMENT PURPOSES, PROVIDED SUCH DETENTION IS NOT
FOR "A PROLONGED PERIOD OF TIME." SOME DELEGATIONS URGED
THAT ANY DEPRIVATION OF A PERSON'S LIBERTY ASSOCIATED WITH AN
ACT OF ENFORCED DISAPPEARANCE SHOULD BE DEEMED UNLAWFUL "IN
WHATEVER FORM OR FOR WHATEVER REASON", AND THUS PREFERRED THE
APPROACH FOUND IN ARTICLE I OF THE 1998 DRAFT E.D. CONVENTION.
7. (U) DEFINITION (CONTINUED). THE ISSUE OF WHETHER THE NEW
INSTRUMENT SHOULD ADOPT AN EXCLUSIVE DEFINITION OF ENFORCED
DISAPPEARANCES (AND IF SO, ONE BASED ON THE ROME STATUTE, THE
DRAFT 1998 CONVENTION, OR VARIANTS OF THOSE INSTRUMENTS) WAS
HOTLY DEBATED. AN ALTERNATIVE APPROACH IS THAT FOUND IN THE
CONVENTION AGAINST TORTURE (" CAT"), WHICH PENALIZES "ALL
ACTS OF TORTURE" (AND THUS BY EXTENSION "ALL ACTS OF ENFORCED
DISAPPEARANCES"). THE U. S. SUPPORTED OTHER DELEGATIONS
(CANADA, JAPAN, UK) WHO VOICED STRONG SUPPORT FOR AN "ACTS"
APPROACH. THESE DELEGATIONS POINTED TO THE EFFECTIVENESS
SUCH APPROACH COULD HAVE UNDER THEIR RESPECTIVE DOMESTIC
LAWS. AS THE DISCUSSION EVOLVED, A NUMBER OF PREVIOUSLY
SKEPTICAL DELEGATIONS BEGAN TO PERCEIVE THAT AN "ACTS"
APPROACH COULD GENUINELY BE RECONCILED WITH THE GOAL OF
CRIMINALIZING AND PUNISHING ENFORCED DISAPPEARANCES. THE
CHAIRMAN URGED AN APPROACH OF "PRAGMATISM" IN ORDER TO ALLOW
THOSE STATES THAT COULD RELY ON AN "ACTS" APPROACH TO BE FREE
TO DO SO, WITHOUT BEING OBLIGED TO ENACT AN EXCLUSIVE, NEW
CRIMINAL STATUTE DEFINING AND PUNISHING ENFORCED
DISAPPEARANCES.
THE CHAIRMAN EXPLAINED THAT "OUR PURPOSE IS
NOT TO CREATE A NEW INTERNATIONAL CRIMINAL CODE. WE MUST
TAKE INTO ACCOUNT AND, AS APPROPRIATE, BASE OUR WORK ON

UNCLASSIFIED
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DOMESTIC LAW."
HIS INTERVENTION CHILLED FURTHER DISCUSSION
OF THE DEFINITION ISSUE.
REGARDING NON-STATE ACTORS OR OTHER
PRIVATE ACTORS WITH NO LINK TO THE STATE, THE U.S. SUPPORTED
SEVERAL OTHER STATE DELEGATIONS (ARGENTINA, CANADA, MEXICO,
JAPAN, PAKISTAN, SWEDEN AND UK), AND ONE KEY NGO DELEGATION
(FEDEFAM), THAT HAD STRONG RESERVATIONS ABOUT INCLUDING SUCH
ACTORS WITHIN THE DEFINITION OF ENFORCED DISAPPEARANCES.
IN

UNCLASSIFIED

HIS SUMMARY STATEMENT, THE CHAIRMAN DISCOURAGED ANY FURTHER
SERIOUS EFFORT TO INCLUDE NON-STATE ACTORS WITHIN THE E.D.
DEFINITION.
8. (U) STATUTES OF LIMITATIONS.
A FAIRLY STRONG CONSENSUS
QUICKLY EMERGED IN FAVOR OF A FLEXIBLE APPROACH IN ADDRESSING
THE STATUTE OF LIMITATIONS (S/L) ISSUE.
SEVERAL DELEGATIONS
(CANADA, CHINA, GERMANY, INDIA, JAPAN, SWEDEN, THE UNITED
STATES AND THE UK) SAID THEY SAW MERIT IN AN APPROACH THAT
ALLOWED SUCH STATUTES TO BE APPLIED COMMENSURATE WITH THE
GRAVITY OF THE OFFENSE.
IN THE SAME VEIN, SEVERAL
DELEGATIONS (LED BY CANADA) SAID THEY COULD, AS AN
ALTERNATIVE, SUPPORT A SILENT APPROACH THAT WOULD ALLOW EACH
STATE'S SIL LAWS TO TAKE THEIR NATURAL EFFECT. THE CHAIRMAN
WARMLY ENDORSED SUCH AN APPROACH AS BEING CONSISTENT WITH HIS
PREFERENCE TO RELY, WHERE FEASIBLE, ON EXISTING DOMESTIC LAW
TO ADDRESS PROCEDURAL ISSUES.
9. (U) AMNESTIES, PARDONS, AND PROSECUTORIAL IMMUNITIES. THE
U. S. JOINED THE UK, SOUTH AFRICA AND THAILAND IN URGING A
SIMILAR "DOMESTIC LAW-BASED" APPROACH WITH REGARD TO THE
ACCEPTABILITY OF AMNESTIES, AND PARDONS AND "SIMILAR
MEASURES".
MANY HEADS NODDED IN THE AFFIRMATIVE WHEN THE
U.S. UNDERSCORED THE IMPORTANCE OF AVOIDING CONSTITUTIONAL
ISSUES THAT WOULD QUICKLY BE RAISED BY BANNING OR RESTRICTING
AMNESTIES AND PARDONS IN THE CONTEXT OF ENFORCED
DISAPPEARANCE PROSECUTIONS.
U.S. REP EXPLAINED THE U.S. LAW
ENFORCEMENT ADVANTAGES RESULTING FROM PROSECUTORS' USE OF
TRANSACTIONAL IMMUNITY TO COMPEL CRITICAL CO-DEFENDANT
TESTIMONY TO CONVICT A MAJOR OFFENDER.
U. S. REP THEREFORE
URGED REJECTION OF LANGUAGE LIKE THAT FOUND IN ARTICLE 18 OF
THE 1992 U.N. "DECLARATION ON THE PROTECTION OF ALL PERSONS
FROM ENFORCED DISAPPEARANCES" BARRING "SIMILAR MEASURES THAT
MIGHT HAVE THE EFFECT OF EXEMPTING (OFFENDERS) FROM CRIMINAL
PROCEEDINGS OR SANCTION."
THIS WORDING HAD BEEN STRONGLY
FAVORED BY MOST OF THE LATIN STATE DELEGATIONS AND SEVERAL
NGOS PRESENT.
HOWEVER, THEIR OPPOSITION SEEMS TO BE
WEAKENING.
10. (U) MILITARY AND SPECIAL TRIBUNALS.
IN CONNECTION WITH
DISCUSSION OF ISSUES RELATING TO
"IMPUNITY", A FEW
DELEGATIONS ATTEMPTED TO OPEN A BROAD DISCUSSION ON WHETHER

UNCLASSIFIED
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THE INSTRUMENT SHOULD BAR MILITARY AND SPECIAL TRIBUNALS.
THE U.S. SUPPORTED THOSE WHO URGED AN APPROACH NOT DISSIMILAR
TO THAT FOUND IN PARAGRAPH 6 OF THE CHAIRMAN'S WORKING PAPER
("PERSONS SUSPECTED OF ENFORCED DISAPPEARANCES SHALL BE
PRESENTED BEFORE INDEPENDENT AND IMPARTIAL COURTS AND ENJOY
ALL GUARANTIES OF A FAIR TRIAL."). THE U. S. FURTHER ASSERTED
THAT THE FORM OF THE TRIBUNAL WAS NOT CRITICAL, BUT RATHER
WHETHER IT WAS CAPABLE OF PROVIDING FAIR JUDICIAL PROCESS
WITH MINIMUM RECOGNIZED STANDARDS OF DUE PROCESS. THE
CHAIRMAN THEN MADE ANOTHER TIMELY INTERVENTION TO ANNOUNCE
HIS FIRM INTENTION TO PRODUCE AN INSTRUMENT THAT DOES NOT
CONDEMN THE USE OF MILITARY OR SPECIAL TRIBUNALS. WHAT
MATTERED MOST, HE SAID, WAS WHETHER THE ACTUAL PROCEDURE
AMOUNTED TO "SHAM JUSTICE."
HE THEN NOTED THAT, AS FAR AS
HE WAS CONCERNED, IT COULD GENERALLY BE ASSUMED THAT U.S.
MILITARY TRIBUNALS ARE INDEED CAPABLE OF ADHERING TO MINIMUM
DUE PROCESS STANDARDS. THAT RATHER ABRUPTLY ENDED DISCUSSION
OF THIS ISSUE.

UNCLASSIFIED

11. (U) DEATH PENALTY. SEVERAL DELEGATIONS (INSTIGATED
MAINLY BY THE SWISS, AND LATER BY BELGIUM AND MEXICO) MADE AN
UNSUCCESSFUL ATTEMPT TO REQUIRE AN EXPRESS BAR TO THE DEATH
PENALTY WHEN STATES ENGAGE IN INTERNATIONAL COOPERATION IN
SUPPRESSING OR PUNISHING ENFORCED DISAPPEARANCES. FOR
INSTANCE, THEY SOUGHT INCLUSION OF LANGUAGE THAT WOULD
PREVENT EXTRADITION, IF SUCH COOPERATION RISKED EXPOSING A
SUSPECTED CRIMINAL TO THE DEATH PENALTY UPON CONVICTION. THE
U.S. PUT DELEGATIONS ON NOTICE THAT ADDING SUCH LANGUAGE
WOULD BE INFLAMMATORY AND COMPEL CERTAIN STATES TO ENTER A
RESERVATION REJECTING SUCH A RESTRICTION. THIS PROMPTED THE
CHAIR TO ANNOUNCE HIS GOAL OF CONCLUDING A "UNIVERSAL
INSTRUMENT" THAT WOULD. AVOID THE NEED FOR A "PROLIFERATION OF
RESERVATIONS." THE CHAIRMAN THEN NOTED EMPHATICALLY THAT
ADDRESSING "THE DEATH PENALTY IS NOT (HE UNDERSCORED NOT)
PART OF OUR MANDATE. " THE INTERNATIONALLY RENOWNED PRESIDENT
OF THE NGO, FEDEFAM, (HERSELF A MOTHER WHO LOST A DAUGHTER
AND GRANDDAUGHTER TWENTY-SEVEN YEARS AGO TO ENFORCED
DISAPPEARANCE) SECONDED THE CHAIRMAN'S STATEMENT AND SAID
"THIS IS NOT THE SUBJECT WE ARE HERE TO DEAL WITH" (DESPITE
HER STATED PERSONAL OPPOSITION TO THE DEATH PENALTY). SHE
CONTINUED, "WE MUST ACCEPT THE FACT THAT EACH COUNTRY IS FREE
TO ACT ON THIS QUESTION AS IT DEEMS FIT." THESE KEY
INTERVENTIONS SEEM TO HAVE DIMINISHED SIGNIFICANTLY THE
POSSIBILITY OF A FINAL INSTRUMENT THAT EXPLICITLY ADDRESSES
OR RESTRICTS THE DEATH PENALTY.
12. (U) PREVENTION. UNDER THE "PREVENTION" CHAPTER, THERE
WAS ACTIVE EXAMINATION OF THE NINE POINTS ADDRESSED IN THE
DISCUSSION PAPER. PARTICULAR FOCUS WAS GIVEN TO POINT 2 (THE

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NON-DEROGABILITY OF THE RIGHT "TO BE INFORMED OF THE PLACE
AND MOTIVES OF THE DETENTION"), AND POINT 3 (THE OBLIGATION
OF THE STATE TO PRESENT DETAINEES WITHOUT UNDUE DELAY BEFORE
A COURT OR JUDICIAL AUTHORITY). DELEGATION VIEWS ON THESE
AND RELATED ISSUES SPLIT ALONG PREDICTABLE LINES. HOWEVER,
PARTICULARLY NOTABLE WAS THE FACT THAT THE CHAIRMAN, HIS ABLE
LEGAL ADVISER FROM PARIS (ANTOINE BUCHET), AND THE HIGHLY
RESPECTED INDEPENDENT EXPERT AND ADVISER TO THE WORKING
GROUP, LOUIS JOINET, (ALL FRENCH NATIONALS) HELPED STEER THE
DEBATE INTO CONSTRUCTIVE, REALISTIC DIRECTIONS, OFFERING
WELL-REASONED REBUTTALS TO MORE FAR-REACHING PROPOSALS BY
SOME DELEGATIONS AND NGOS.
IN SUMMING UP, THE CHAIR
ACKNOWLEDGED, HOWEVER, THAT DISCUSSION OF THE NINE POINTS
LISTED UNDER THIS CHAPTER HAD NOT YIELDED A CONSENSUS.

UNCLASSIFIED

13. (U) DEFINING VICTIMS OF E.D. DISCUSSION FOCUSED
PRIMARILY ON TWO ISSUES: HOW BROADLY TO DEFINE THE SCOPE OF
"VICTIMS"; AND APPROPRIATE REMEDIES, INCLUDING, INTER ALIA,
THE RIGHT TO REPARATION.
THE U.S. SUGGESTED THE UTILITY OF
AN APPROACH THAT WOULD ALLOW EACH STATE SUFFICIENT
FLEXIBILITY TO DETERMINE THE EACH CLASS OF POTENTIAL
"VICTIMS" BY APPLYING ITS DOMESTIC LAW PRINCIPLES ON
"STANDING" TO SUE. DELEGATIONS SEEM GENERALLY WILLING TO
CONSIDER SUCH A PRAGMATIC APPROACH, IN LIEU OF A
PREDETERMINED LIST OF ALL POTENTIAL E. D. "VICTIMS" ALLEGEDLY
ENTITLED TO SEEK A REMEDY.
14. (U) APPLICATION OF IHL TO ENFORCED DISAPPEARANCES. A
REPRESENTATIVE OF THE INTERNATIONAL COMMITTEE OF THE RED
CROSS (ICRC) OFFERED PREPARED REMARKS (ALREADY FAXED TO
L/HRR) THAT DISCUSSED THE INTERPLAY BETWEEN INTERNATIONAL
HUMANITARIAN LAW (IHL) AND ENFORCED DISAPPEARANCES AS A
VIOLATION OF HUMAN RIGHTS LAW. ALTHOUGH THE ICRC REP AVOIDED
SPEAKING IN CATEGORICAL TERMS, HER REMARKS WERE UNHELPFUL IN
SEVERAL RESPECTS, AS THEY TENDED TO SUGGEST (AND TO
RECOMMEND) THAT PRINCIPLES FROM IHL COULD APPROPRIATELY BE
APPLIED TO FILL GAPS IN HUMAN RIGHTS LAW TO ENHANCE
PROTECTION FROM ENFORCED DISAPPEARANCES. HER COMMENTS WOULD
HAVE PROVOKED A GENERAL DEBATE, BUT THE CHAIR PRECLUDED THAT
AND ENCOURAGED DELEGATIONS TO CAREFULLY CONSIDER THE ICRC,S
REMARKS IN THE CONTEXT OF THE NEXT ROUND OF NEGOTIATIONS.
15. (U) NEXT STEPS.
THE CHAIRMAN ANNOUNCED THE NEXT FORMAL
SESSION OF THE WORKING GROUP WOULD BE HELD FROM 12-23 JANUARY
2004, WHERE HE WILL BEGIN "TRYING TO REACH CONSENSUS ON
DRAFTING ARTICLES". HE ANNOUNCED HIS INTENTION TO PRODUCE A
NEW WORKING DOCUMENT (PRESUMABLY AN INITIAL DRAFT OF A
CONVENTION TEXT). THIS NEW WORKING DOCUMENT WILL DRAW FROM
THE SEPTEMBER DISCUSSIONS AND BE MADE AVAILABLE TO THE

UNCLASSIFIED
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WORKING GROUP ON OR ABOUT DECEMBER 1. IN SUMMING UP, THE
CHAIRMAN (AMBASSADOR KESSEDJIAN) IDENTIFIED FOUR GOALS HE
INTENDS TO USE AS GUIDING PRINCIPLES AT THE JANUARY SESSION.
FIRST, USE THE 1992 DRAFT DECLARATION AS A MINIMUM THRESHOLD
AND POINT OF REFERENCE, WITH A VIEW TO INCORPORATING ALL OF
ITS KEY ELEMENTS. SECOND, AS FAR AS POSSIBLE, USE AGREED
LEGAL EXPRESSIONS FOUND IN OTHER INSTRUMENTS IN DRAFTING TEXT
FOR THE E.D. INSTRUMENT, UPDATING SUCH AGREED LANGUAGE ONLY
WHERE NECESSARY. THIRD, AVOID NEEDLESSLY OVERBURDENING STATES
PARTIES, RECOGNIZING THAT THE NEW INSTRUMENT NEED NOT FILL IN
ALL THE LEGAL GAPS DESIRED BY SOME TO PROVIDE FULL PROTECTION
FROM ENFORCED DISAPPEARANCES.
IN EFFECT, THIS MEANS LEAVING
SUFFICIENT ROOM FOR APPLICABLE DOMESTIC LAW TO FILL IN
CERTAIN GAPS, HE EXPLAINED. AND FOURTH, AVOID LEAVING GAPS
IN THAT WOULD CLEARLY WEAKEN THE EFFECTIVENESS OF THE NEW
INTERNATIONAL INSTRUMENT PROTECTING AGAINST E.D.

UNCLASSIFIED

16. (U) NOTABLE CLOSING SESSION DEVELOPMENTS. JAPAN STRESSED
THE NEED FOR THE NEXT WORKING DOCUMENT TO "REFLECT ALL THE
DIFFERENT VIEWS" (READ: INCLUDING CONSERVATIVE, MINORITY
VIEWS FROM STATE DELEGATIONS). ON THE FINAL DAY OF
DISCUSSIONS, AN AD HOC GROUP OF LIKE-MINDED DELEGATIONS,
INCLUDING CANADA, JAPAN, THE UNITED STATES AND AUSTRALIA,
INTERCEPTED THE CHAIRMAN BEFORE HIS ARRIVAL AT THE MEETING
ROOM TO QUERY HIM ABOUT HOW HE INTENDED TO PREPARE THE NEXT
DRAFT DOCUMENT. WE CAUTIONED HIM ABOUT THE SERIOUS CONCERNS
THAT WOULD BE RAISED IF THAT DOCUMENT REFLECTED UNDULY AN
"NGO" PERSPECTIVE.
IN A TWENTY-MINUTE MEETING OUTSIDE THE
MEETING HALL, THE CHAIRMAN WENT TO LENGTHS TO REASSURE THE AD
HOC GROUP THAT HE WOULD BE PRAGMATIC IN STRIKING A PROPER
BALANCE BETWEEN THE COMPETING VIEWS, STICKING WITH HIS
PREVIOUSLY STATED OPPOSITION TO INFLAMMATORY REFERENCES SUCH
AS THE DEATH PENALTY, MILITARY TRIBUNALS, ETC.
LATER, THE
FEDEFAM (OUTGOING) PRESIDENT (MARTA OCAMPO DE VASQUEZ) (SEE
PARA 11 ABOVE) WAS INVITED BY THE CHAIRMAN TO MAKE A PARTING
STATEMENT, IN VIEW OF HER INTERNATIONALLY RENOWNED STATURE ON
THE E.D. ISSUE.
TO HER CREDIT, OCAMPO URGED NEGOTIATORS TO
STAY FOCUSED ON THE IMPORTANT ISSUES NEEDED TO PRODUCE AN
EFFECTIVE INSTRUMENT AS SWIFTLY AS POSSIBLE.
IN THE CONTEXT
OF HER PREVIOUS INTERVENTIONS, THIS WAS CODEWORD FOR AVOID
EXTRANEOUS DEBATES OVER SUCH ISSUES AS REFERENCES TO THE
DEATH PENALTY AND THE INCLUSION OF NON-STATE ACTORS WITHIN
THE TREATY REGIME.
17.

(U) COMMENT. I

B5

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B5

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L-

---'I END COMMENT.

Moley

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------------------24D862 101117Z /38
R 100809Z AUG 05
RELEASED
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IN FULL

UNCLAS GENEVA 001908
STATE FOR IO/SHA, DRL/MLA
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: REPLY ROM THE HUMAN RIGHTS COMMITTEE
1. Mission receved the following reply from Christine
Chanet, Cairperson, Human Rights Committee, to a letter
from Glyn Davies regarding the United States' combined
second and third periodic reports. This communication has
been forwarded to IO/SHA and DRL/MLA via fax and is number
24 on the Geneva 2005 Communications Log.
2.

Begin text of letter:

28 July 2005
Reference:

PG/PW/vd

Dear Sir,
I have the honour to refer to your letter dated 22 July
2005.
In that correspondence, you informed the Human Rights
Committee that the U.S. Government would not be in a
position to submit its combined second and third reports by
the time of the Committee's 84th session (July 2005), as
previously indicated in the letter of Mr. M. Kozak of 24
March 2005. You also indicated your Government's intention
to submit them as soon as possible after this year.
After careful consideration of the matter, the Committee
wishes to inform you that the above-mentioned reports should
be submitted by 17 October 2005, the starting date of the

UNITED STATES DEPARTMENT OF STATE

REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 16 JUN 2009 200706444

UNCLASSIFIED
ER2203

Conunittee's 85th session.
In the absence of those reports, UNCLASSIFIED
the Conunittee will adopt a list of issues on the specific
concerns contained in its letter of 27 July 2004 (the effect
of measures taken in the fight against terrorism following
the events of 11 September 2001 and notably the implications
of the Patriot Act on nationals as well as non-nationals;
and problems relating to the legal status and treatment of
persons detained in Afghanistan, Guantanamo, Iraq, and other
places of detention outside of the United States of America
- copy attached for ease of reference) with a view to
examining any other matters in the light of replies from
your Government to the list of issues on these concerns at
its 86th session to be held from 13 to 31 March 2006.
Thank you in advance for your forthcoming reply.
Sincerely
Christine Chanet
Chairperson
Human Rights Conunittee
cc: H.E. Amb. Kevin E. Moley
Permanent Representative of the United States of America to
the United Nations Office at Geneva and other International
Organizations
End text of letter.
MOLEY

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STATE FOR IO/SHA, DRL/MLA, L/HRR
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1
SUBJECT: COMMUNICATION FROM THE WORKING GROUP ON ENFORCED
DISAPPEARANCES
1. Mission received the following letter dated August 25,
2004 from the Chairman of the Working Group on Enforced or
Involuntary Disappearances, Stephen J. Toope, addressed to
Ambassador Moley. The letter concerns reports the Working
Group has received regarding alleged secret detention centers
under United States' authority in various parts of the world
and invites the USG to submit written information by October
15 and/or send a representative to appear in person at the
next Working Group session November 8-15, 2004.
2.

Text of letter and annex follows:

Begin text.
25 August 2004
Dear Mr. Ambassador,
I should like to communicate to you, on behalf of the
Chairman of the Working Group on Enforced or Involuntary
Disappearances, the following letter addressed to you:
IIDear Mr. Ambassador,

I have the honour to write to you on behalf of the Working
Group on Enforced or Involuntary Disappearances, which held

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ill: 18 JUN 2009 200706444

UNCLASSIFIED

ER2205

its seventy-third session from 16
United Nations Office in Geneva.

t~~~~Ipq~at

the

In the course of the session, the Working Group decided to
inform your Government of reports i t had received about
developments in your country having an influence on the
phenomenon of disappearances or the solution of the cases not
yet clarified, and/or on the implementation of the
Declaration on the Protection of All Persons from Enforced
Disappearances. A summary is provided as an Annex to this
letter.
I would like to take this opportunity to remind your
Government that the Working Group will hold its
seventy-fourth session from 8 to 15 November 2004, at the
Untied Nations Office in Geneva.
It would therefore be very
much appreciated if any written information that your
Government wishes to submit for the Working Group's
consideration, could be received, if possible, by 15 October
2004.
In conformity with its usual practice, the Working Group is
prepared to receive representatives of interested Governments
during the first three days of its session. Should your
Government wish to be represented at the forthcoming session,
I would appreciated your contacting the Group's secretariat
at the Untied Nations Office of the High Commissioner for
Human Rights in Geneva (tel. 022-917-9176), in order to
schedule an appointment with the Group.
I

remain

Dear Mr. Ambassador,
Yours sincerely
Stephen J. Toope
Chairman
Working Group on Enforced or Involuntary Disappearances"
I remain,
Dear Mr. Ambassador,

Yours sincerely,
/////////////////////
Tanya Smith
Secretary a.i.
Working Group on Enforced or Involuntary Disappearances

ANNEX
WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES

UNCLASSIFIED

ER2206

General allegations

UNCLASSIFIED

United States of America
The Working Group received information from non-governmental
organizations concerning the reported non-compliance by the
Government of the United States of America with provisions of
the Declaration on the Protection of All persons from
Enforced Disappearance.
Reports were received by the Working Group regarding secret
detention centers under United States' authority in various
parts of the world, in which an unknown number of persons are
detained. Reports assert that there was inadequate provision
of notice to families about the capture of detainees and
their conditions, legal status and rights.
It is also
reported that i t is unclear in many circumstances which U.S.
agency is ultimately responsible for the arrest or the
conditions of confinement of the detainees in these
facilities.
Reports further specify that the most sensitive and
high-profile detainees are not being held in Guantanamo
because i t is believed that detainees there will eventually
be monitored by the U.S. courts.
It is stated that terrorism
suspects are detained by the Untied States in "undisclosed
locations," presumably outside the United States, with no
access to the ICRC, no notification to families, no oversight
of any sort of their treatment, and in most cases no
acknowledgment that they are even being held.
Information
was provided on 13 specific alleged detainees, apprehended in
places such as Pakistan, Indonesia, Thailand, Morocco, and
the United Arab Emirates, who have reportedly disappeared in
U.S. custody.
American authorities have also apparently refused to
disclose the names of men secretly detained during the past
few years within the United States. Families have not been
informed on the arrested persons' locations. Reports state
that some of these detainees have now been released or
deported.
End text.
3. Mission transmitted a copy of the letter by fax to
IO/SHA, Attention Director.
Cassel

UNCLASSIFIED

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060693
SOURCE: CBLEXCLS.002314
DRAFTED BY: IO/SHA:JRMALKIN -- 04/05/2001 202-647-2506
APPROVED BY: IO/SHA:HPERLOW
IO/SHA:BZWEIBEN
DRL/MLA:LELBINGER
L/HRR:ASURENA
DESIRED DISTRIBUTION:
IO/SHA, DRL/MLA, L/HRR
------------------DC1FB2 060002Z /38
o P 052358Z APR 01
FM SECSTATE WASHDC
TO USMISSION GENEVA IMMEDIATE
INFO USMISSION USUN NEW YORK PRIORITY
UNCLAS STATE 060693
E.O. 12958: N/A
TAGS: PHUM, UNHRC-1, US
SUBJECT: 57TH CHR: INITIAL GUIDANCE ON DRAFT RESOLUTION ON
INVOLUNTARY DISAPPEARANCES
UNCLASSIFIED
PAGE 02
STATE
060693 060002Z
REF: GENEVA FAX NO. 73 DATED 4/5/01
1. USDEL SHOULD OPPOSE EFFORTS IN OP11 AND OP12 TO CREATE AN
AN INTERSESSIONAL WORKING GROUP AND APPOINT AN EXPERT TO
CREATE A DRAFT INTERNATIONAL CONVENTION ON THE PROTECTION OF
ALL PERSONS FROM ENFORCED DISAPPEARANCE BASED ON THE WORK OF
THE SUB-COMMISSION ON THIS ISSUE. THIS INTERNATIONAL
CONVENTION WOULD CLEARLY DUPLICATE WORK NOW BEING HANDLED BY
A HOST OF INTERNATIONAL INSTRUMENTS, INCLUDING THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, THE
CONVENTION AGAINST TORTURE, THE DECLARATION OF THE PROTECTION
OF ALL PERSONS FROM ENFORCED DISAPPEARANCES (ADOPTED BY THE
GENERAL ASSEMBLY IN 1992) AND THE INTER-AMERICAN CONVENTION

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCllE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
ER2209

ON. DISAPPEARANCES. EXISTING TREATY BODIES INCLUDING THE
HUMAN RIGHTS COMMITTEE AND THE COMMITTEE AGAINST TORTURE ARE
ALREADY CHARGED WITH MONITORING STATE COMPLIANCE WITH RESPECT
TO THE QUESTION OF INVOLUNTARY DISAPPEARANCES. THE CREATION
OF YET ANOTHER TREATY BODY COULD VERY WELL CONFUSE THE LINES
OF AUTHORITY TO THE DETRIMENT OF WORK CURRENTLY BEING
PERFORMED IN THIS AREA.

UNCLASSIFIED

2. THE ABOVE SHOULD NOT BE CONFUSED WITH THE WORKING GROUP
ON ENFORCED AND INVOLUNTARY DISAPPEARANCES WHOSE BASIC
MANDATE IS TO ASSIST THE RELATIVES OF DISAPPEARED PERSONS TO
ASCERTAIN THE FATE AND WHEREABOUTS OF THEIR FAMILY MEMBERS.
THE U.S. STRONGLY SUPPORTS THIS WORKING GROUP AND THE RENEWAL
OF ITS MANDATE FOR AN ADDITIONAL THREE YEARS (OP9).
POWELL
UNCLASSIFIED

«

END OF DOCUMENT

»

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GENEVA 000025

L/HRR, Io/SHA, DRL
E.O. 12958: NIA
TAGS: UNHR, UNGA, PHUM
SUBJECT: FORCED DISAPPEARANCES: THIRD FORMAL NEGOTIATING
SESSION
1. (U) Summary. During the Third Formal Session of the
Working Group to Elaborate a draft convention to punish and
prohibit forced disappearances, held in Geneva from October
4-8, 2004, the Working Group, chaired by the French
Permanent Representative, devoted the majority of the session
to an initial and thorough discussion of the proposed treaty
monitoring body, its structure and functions, found in Part
II of the draft text. The final two days were devoted to a
discussion of several articles in Part I that contain
contentious issues, namely, the definition of enforced
disappearance, criminalization as an autonomous offense,
complicity, defense of superior orders, and jurisdiction, in
particular "found in" quasi-universal jurisdiction.
The
Fourth formal session of the Working Group, scheduled to take
place from January 31-Feburary 11, 2005, will pick up with
Article 11 (the extradite or prosecute provisions). Although
the chair would like to conclude the negotiations during the
fourth session and produce a final text for adoption by the
CHR and by the UNGA in 2005, many delegations believe that
the work remaining to be done will not accommodate such an
ambitious schedule. End Summary.
2.
(U) Treaty Monitoring Body. The first three days of the
session were devoted to discussion of the proposed treaty
monitoring body, its structure and mandate.
The group
considered whether the proposed instrument should be styled
as an Optional Protocol to the International Covenant on

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
ER2211

CiviJ. and PoEtical Rights (ICCPR) ,l.J¥iJ€li.,Ai8>SIFilOO Rights
Committee (or a subcommittee of that Committee) as the
monitoring body. This optional approach appears to be
supported by the vast majority of States in the room
(including the United States). Alternatively, the group
considered whether the proposed instrument should be an
independent treaty that creates a new monitoring body, a
position supported by a number of Latin states and all NGOs
representing families of the disappeared.
Both the longtime
UN expert on involuntary disappearances Manfred Nowak and the
current Chair of the Human Rights Committee, Mr. Abdelfattah
Amor, who punctuated the week-long session with scholarly and
thoughtful contributions, support an Optional Protocol using
the existing Human Rights committee. The two experts
underscored that the Human Rights Committee already has
jurisdiction over disappearances, which are a violation of
several of the rights granted under the ICCPR, and also
jurisdiction over individual communications alleging
disappearances with respect to States Parties to the First
Optional Protocol to the ICCPR (to which the U.S. is not a
party). Although the overwhelming majority of States support
structuring this instrument as an Optional Protocol to ICCPR,
the Chair seems reluctant to let go of his vision for a
treaty and new monitoring body.
3. (U) Treaty Body Functions. The Working Group spent much
time discussing the potential mandate of the monitoring body.
The chair,s draft text envisions several monitoring body
functions including:
a. Examining initial State reports;
b. An urgent action procedure that would also entail a
possible site visit, if consented to by the State Party in
question. However, this procedure (as currently worded)
would also afford nearly unfettered discretion to the
monitoring body in determining the modalities of the visit
once consent is granted. The chair envisions this element of
the mandate to be a core function for the monitoring body;
c. An individual communication mechanism that, as currently
drafted, is an awkward melding of the traditional
treaty-based individual communications procedure and the
CHR,s 1503 procedure;
d. A contemplated referral procedure to the Secretary General
in cases where widespread or systematic enforced
disappearance is practiced within or by a State, a function
that would be unprecedented in a human rights treaty; and
e. An annual report prepared by the monitoring body which
could include a section that would "name and shame" States
that are uncooperative with the treaty body.
4.

(U) Discussion also focused on additional important

UNCLASSIFIED
ER2212

issues; including:
UNCLASSIFIED
a.
the proposal supported by some delegations to rework the
individual communications procedure to render it
consistent with current treaty body law and practice,
including making it optional;
b. the merits and demerits of confidentiality of complaints
and of llnaming and shaming";
c. the desirability of providing for follow-up state reports
at the request of the treaty body;
d. the potential duplication between the proposed urgent
action mechanisms of the treaty monitoring body and
the existing CHR special procedure (i.e., the working
group on involuntary disappearances, created in 1980);
e. the absence of a state-to-state, or inter se, complaints

mechani.sm;

f. the need to clarify the predicates for a monitoring body
site visit;
g. the need to make approved site visits subject to agreed
modalities between the State and the treaty body;
and
h. the reasons underlying the serious reservations of many
States regarding referral to the Secretary General.
5.
(U) Despite the chair's ambitious desire for a speedy
adoption of this text, additional conceptual refinement and
additional redrafting of Part II of the draft text remains to
be done. Moreover, if this instrument is ultimately styled
as an Optional Protocol to the ICCPR and thus entails use of
the Human Rights Committee, Part II could be radically
simplified along the lines of the procedural articles of the
Second Optional Protocol to the ICCPR (articles 3-5), with
the possible addition of an urgent action procedure and a
site visit upon state consent. For this reason, several
States urged that the working group decide the question of
nature of the instrument before discussing the details of
Part II. However, the Chair deferred decision-making on this
issue, apparently in order to allow time for broader support
to develop for adoption of a new, autonomous instrument.
6.
(U) Substantive Articles (Article 1-11). During the last
two days, the Working Group also discussed several (but not
all) of the first eleven articles (on a somewhat hurried
basis due to lack of time). Those provisions included:
a. PP2 and article 2bis on crimes against humanity;
b. pp4 on the right to know;
c. article 1 on the definition of a forced disappearance and
on state action;
d. article 2 on crirninalization as an autonomous offense;

UNCLASSIFIED
ER2213

e. art~cle 3 on compl~city and on elimi~~gI~~E)eof
superior orde:rs;

f.
article 4 on mitigating circumstances;
g. article 5 on statute of limitations;
h. art~cle 9 on jurisdiction; and
i. article 11 on "found in"
(quasi-universal) jurisdiction.
(Note: We continue to be seriously concerned that such a
provision could expose U.S. officials to criminal prosecution
for alleged involvement in military or law enforcement
activities that arguably fall within the overbroad definition
of enforced disappearances, should such officials travel to
the territory of a State party. However, there is
near-universal support for a quasi-universal jurisdiction
provision) .
7.
(U) In execution of the written guidance for the
delegation, which incorporated comments of several agencies
including DOD/OSD, DOJ/OIA, DHS, and HHS/ACF, and which was
cleared in full by NSC, DOD, and several offices within the
State Department, the delegation made interventions that
addressed the structure and authorities of the treaty
monitoring body and each of the substantive issues noted in
paragraphs 1-6 above.
The U.S. delegation underscored that
the overbroad and vague definition was not only flawed in and
of itself but also that it rendered more problematic a number
of other articles in the instrument, including elimination of
a defense of superior orders and the jurisdictional
provisions. The delegation also continued to object to
provisions that would require or imply recognition of a right
to know, eliminate a defense of superior orders, or require
quasi-universal jurisdiction.
B5

UNCLASSIFIED
ER2214

UNCLASSIFIED

B5

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NNNN

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SENSITIVE
FOR IO/SHA - TOM JOHNSON, L/HRR - ANDRE SURENA, L/HRR GILDA
BRANCATO, L/LEI - DENISE MANNING, L/PM, DRL/MLA - CHRIS
CAMPONOVO, DOJ/OIA - THOMAS BURROWS, DOD/GC - ELIANA
DAVIDSON
E.O. 12958: N/A
TAGS: PHUM, UNHRC, SOCI
SUBJECT: FINAL REPORT ON UNHRC WG SESSION ON FORCED
DISAPPEARANCES (JANUARY 6-17, 2003)
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1.
(SBU)
SUMMARY. DURING THE SECOND AND FINAL WEEK OF THE
WG SESSION ON A PROPOSED LEGALLY BINDING INSTRUMENT ON FORCED
DISAPPEARANCES, DISCUSSION CONTINUED ON THE CORE SUBSTANTIVE
ELEMENTS OF THE PROPOSED INSTRUMENT (E.G., DEFINITION OF
"FORCED DISAPPEARANCE" AND ITS CRIMINALIZATION; PROTECTION
AGAINST IMPUNITY; DOMESTIC PROSECUTION AND INTERNATIONAL
COOPERATION; PREVENTION; VICTIMS; AND CHILDREN OF DISAPPEARED
PERSONS). THROUGHOUT, THE DIALOGUE REMAINED ANALYTICAL,
FOCUSED, APOLITICAL, AND HIGHLY CONSTRUCTIVE, INCLUDING
CONTRIBUTIONS FROM THE NGOS. HOWEVER, IT IS CLEAR THAT WHEN
A DRAFT WORKING TEXT IS PRESENTED AT THE NEXT TWO-WEEK
SESSION, THERE WILL BE MAJOR DIVIDES BETWEEN ACTIVIST GRULAC

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE 10: 24 J1JL 2009 200706444

UNCLASSIFIED
ER2216

I

COUNTRIES AND
lJ.NCLASSIFIED
THAT IS PRECISE, EASILY TRANSPOSED INTO NATIONAL LAW, AND
ACCEPTABLE TO A WIDE GROUP OF STATES. MODERATE STATES
INCLUDE CANADA, JAPAN, SWITZERLAND, THE UK (AND POTENTIALLY
THE US). A THIRD GROUP OF MORE OPENLY RELUCTANT STATES
INCLUDES INDIA, SAUDI ARABIA, RUSSIA, AND PAKISTAN, SOME OF
WHICH BELIEVE THERE IS NO CURRENT, DEMONSTRATED NEED FOR AN
INSTRUMENT. WHETHER THIS THIRD GROUP WILL REMAIN RIGIDLY
OPPOSED TO AN INSTRUMENT OR SOFTEN THEIR POSITION OVER TIME
REMAINS TO BE SEEN.

B5

2.
(SBU)
SUMMARY CONTINUED. ON THE FINAL DAY, JANUARY 17,
THE WORKING GROUP REVIEWED AND APPROVED IN PRINCIPLE THE
CHAIR'S (FRENCH PERMREP BERNARD KESSEDJIAN) DRAFT REPORT
WHICH REFLECTED THE TWO WEEKS OF DELIBERATIONS. THE WG
SESSION ENDED WITH A CHORUS OF PRAISE FOR THE CHAIR'S
BALANCED AND SUBSTANTIVE CONDUCT OF THE PROCEEDINGS. THE
UNCLASSIFIED
PAGE 03
GENEVA 00272 01 OF 03 231604Z
CHAIR REITERATED HIS INTENTION TO SEEK A ONE-WEEK INFORMAL
SESSION IN GENEVA IN SEPTEMEER 2003 BEFORE THE SECOND FORMAL
SESSION IN JANUARY 2004. AT THE LATTER MEETING, A PROPOSED
WORKING DOCUMENT IS EXPECTED TO BE PRESENTED AND DISCUSSED.
WE PREDICT THAT, AT THAT TIME, DIVERGENCES IN THE VIEWS OF
DELEGATIONS WILL BECOME MORE SHARPLY CLARIFIED AND DEBATED.
END SUMMARY.
3.
(SBU)
FROM JANUARY 6-17, THE WG'S DELIBERATIONS WERE
EXPLORATORY IN NATURE AND FOCUSED ON SEVERAL GROUPINGS OF
ISSUES, SPECIFICALLY:
DEFINITION/CRIMINALIZATION/JURISDICTION/PENALTIES, AND
"PROTECTIONS AGAINST IMPUNITY," THAT IS, STATUTE OF
LIMITATIONS, IMMUNITIES, MILITARY COURTS AND SPECIAL
TRIBUNALS, A DEFENSE OF "SUPERIOR ORDERS," APPLICATIONS FOR
ASYLUM, AMNESTY AND PARDON, OTHER CAUSES OF EXONERATION,
ALLEVIATION OF CRIMINAL LIABILITY, AND MITIGATION. MAJOR
SUBSIDIARY ISSUES RAISED INCLUDED (1) THE NEED FOR PRECISION
IN THE DEFINITION; (2) WHETHER THE TREATY WILL REQUIRE STATES
PARTIES TO ENACT A SPECIFIC, STAND-ALONE OFFENSE OF "FORCED
DISAPPEARANCE" OR WHETHER IT WILL SIMPLY PROHIBIT "ACTS" OF
FORCED DISAPPEARANCE (THE US DELEGATION SUPPORTED THE LATTER
VIEW); (3) WHETHER A STATUTE OF LIMITATIONS FOR FORCED
DISAPPEARANCES SHOULD BE THE LONGEST PERIOD ALLOWED UNDER
DOMESTIC LAWS OR, AS PROPOSED BY THE US DELEGATION, A PERIOD
OF TIME COMMENSURATE WITH THE GRAVITY OF THE OFFENSE; AND (4)
PROHIBITION OF ALL SPECIAL TRIBUNALS AND MILITARY COURTS,
WHICH WAS OPPOSED BY THE US DELEGATION. AMNESTIES, ASYLUM
AND REFUGE, NON-REFOULEMENT, IMMUNITIES AND MITIGATION
PROVOKED MUCH DISCUSSION BUT SURPRISINGLY LITTLE DISSENSION

UNCLASSIFIED
ER2217

AT THIS MEETING.

WE EXPECT IMMUNITm<miPA!@SIF.IlfID'l TO
UNCLASSIFIED

PAGE 04
GENEVA 00272 01 OF 03 231604Z
BECOME CONTROVERSIAL AT A FUTURE STAGE.
4.
(SBU) THE NEXT TRANCHE OF TOPICS DISCUSSED WERE
JURISDICTION, EXTRADITION, AND MUTUAL LEGAL ASSISTANCE.
SEVERAL DELEGATIONS (INCLUDING THE FRENCH) SUPPORTED BROAD
JURISDICTIONAL GROUNDS TO ENSURE CRIMINAL PROSECUTION OF
ENFORCED DISAPPEARANCE OFFENDERS (E.G., "PRESENT IN" OR
QUASI-UNIVERSAL CRIMINAL JURISDICTION), WHILE OTHERS PROPOSEO
A MORE CAUTIOUS APPROACH. THE US DELEGATION RECOMMENDED THAT
THE OPTIONAL PROTOCOL ON CHILD SALE/pROSTITUTION SERVE AS A
REFERENCE TEXT (IN ADDITION TO THE TEXTS ON THE TABLE, THAT
IS THE 1992 DECLARATION ON FORCED DISAPPEARANCES, THE 1998
DRAFT CONVENTION ON FORCED DISAPPEARANCES ADOPTED BY THE
SUB-COMMISSION ON THE PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES, THE ICCPR, AND THE CONVENTION
AGAINST TORTURE) FOR PROVISIONS RELATING TO JURISDICTION,
EXTRADITION, AND MUTUAL LEGAL ASSISTANCE.
5.
(SBU) THE GROUP ALSO DISCUSSED PREVENTION OF FORCED
DISAPPEARANCES, INCLUDING MONITORING OF DETENTIONS,
REGISTRATION OF DETAINEES, ACCESS TO INFORMATION, TRAINING OF
LAW ENFORCEMENT PERSONNEL, AND JUDICIAL REMEDIES. NUMEROUS
DELEGATIONS UNDERSCORED THE IMPORTANCE OF PROHIBITION OF
SECRET PLACES OF DETENTION AND THE AVAILABILITY OF
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UNCLASSIFIED

SENSITIVE

FOR IO/SHA - TOM JOHNSON, L/HRR - ANDRE SURENA, L/HRR GILDA
BRANCATO, L/LEI - DENISE MANNING, L/PM, DRL/MLA - CHRIS
CAMPONOVO, DOJ/OIA - THOMAS BURROWS, DOD/GC - ELIANA
DAVIDSON
E.O. 12958: N/A
TAGS: PHUM, UNHRC, SOCI
SUBJECT: FINAL REPORT ON UNHRC WG SESSION ON FORCED
DISAPPEARANCES (JANUARY 6-17, 2003)
UNCLASSIFIED
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NON-DEROGABLE JUDICIAL REMEDIES, SUCH AS HABEAS CORPUS.
DELEGATIONS ALSO HIGHLIGHTED THE IMPORTANCE OF EXPEDITED
INVESTIGATIONS INTO DISAPPEARANCES. THE UNITED STATES
DELEGATION SUGGESTED STRENGTHENING THE TRAINING PROVISION AND
MODELING THE ARTICLES ON JUDICIAL REMEDIES UPON THE ICCPR
(ARTICLES 2 AND 9).
6.
(SBU)
THE FINAL DAYS OF SUBSTANTIVE DELIBERATIONS
FOCUSED ON THE DEFINITION AND RIGHTS OF VICTIMS, RIGHT TO
REPARATION, AND THE CHILDREN OF DISAPPEARED PERSONS, WHO ARE
TAKEN FROM THEIR PARENTS DURING THE ABDUCTION OR UPON BIRTH
TO A DISAPPEARED MOTHER. THERE WAS AGREEMENT IN PRINCIPLE ON
THE NEED FOR EFFECTIVE REMEDIES, BUT THE DEVIL WILL BE IN THE
DETAILS, PARTICULARLY REGARDING THE BREADTH OF CIVIL REMEDIES
AVAILABLE TO THE DISAPPEARED PERSON, FAMILY MEMBERS, AND
POSSIBLY OTHERS DIRECTLY AFFECTED BY THE DISAPPEARANCE.
7.
(SBU)
THE SESSION CONCLUDED WITH REVIEW AND ENDORSEMENT
IN PRINCIPLE OF A DRAFT REPORT PREPARED BY THE CHAIR AND THE
SECRETARIAT WHICH SUMMARIZES THE TWO WEEKS OF DISCUSSION.
IT
IDENTIFIES THE SUBSTANTIVE ISSUES AND CONCEPTS THAT WERE
DISCUSSED, AND PROVIDES "CHAIRMAN'S SUMMARIES" OF THE
SALIENT CONCLUSIONS THAT APPEARED TO EMERGE FROM THE WORKING
GROUP'S DISCUSSIONS OF THE CORE SUBSTANTIVE ISSUES NOTED
ABOVE.
DELEGATIONS MADE ORAL COMMENTS ON THE DRAFT REPORT,
AND, IN RESPONSE TO THE CHAIR'S INVITATION FOR DELEGATIONS TO
SUBMIT WRITTEN COMMENTS ON IT, THE U.S. DELEGATION HAS
PREPARED WRITTEN PROPOSED EDITS IN AN EFFORT TO ENSURE
GREATER ACCURACY AND BALANCE IN THE DESCRIPTION OF WHAT WAS
DISCUSSED. THOSE COMMENTS WILL BE PRESENTED TO THE CHAIR
DURING THE WEEK OF JANUARY 20. THE DRAFT REPORT RECOMMENDS
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THAT THE WORKING GROUP MEET FOBMALLY BE~ASlMiFI~ID!ION
OF THE CHR (EARLY IN 2004) AND THAT AN INFOBMAL PREPARATORY
MEETING OF FIVE WORKING DAYS TAKE PLACE LATER THIS YEAR,
PREFERABLY AT THE BEGINNING OF SEPTEMBER, TO LAY THE
FOUNDATION FOR THE 2004 FOBMAL SESSION.
AT THAT SESSION,
THE WG WILL PROBABLY ADDRESS OTHER ISSUES OF PARTICULAR
IMPORTANCE TO THE U. S., SUCH AS THE NATURE OF THE INSTRUMENT
(SEPARATE CONVENTION VICE OPTIONAL PROTOCOL), RELATIONSHIP
WITH OTHER INSTRUMENTS (PARTICULARLY THE GENEVA CONVENTIONS
OF 1949 AND ADDITIONAL PROTOCOLS), THE QUESTION OF A
SUPERVISORY MECHANISM (EXISTING OR NEW TREATY BODY, AND ITS
COMPETENCE), AND FINAL CLAUSES OF THE INSTRUMENT, NOTABLY
WHETHER RESERVATIONS WILL BE PERMITTED.
8.
(SBU)
IN SEVERAL PRIVATE ASIDES, THE CHAIR REPEATEDLY
THANKED THE UNITED STATES DELEGATION FOR ITS ACTIVE
ENGAGEMENT, WHILE ACKNOWLEDGING THAT THE U. S. GOVERNMENT
RESERVES ITS POSITION ON THE OUTCOME OF THIS PROCESS.r-=\-~--,

B5

'"--lIRATHER THAN REQUIRE ADOPTION OF A
SEPARATE, STAND-ALONE FORCED DISAPPEARANCE OFFENSE, THE CHAIR
SUGGESTED THAT, PRIOR TO THE NEXT WG MEETING, FRANCE WOULD BE
PREPARED TO HOST AN INFOBMAL MEETING OF CRIMINAL LAW EXPERTS
FROM THE US DEPARTMENT OF JUSTICE AND THEIR FRENCH
COUNTERPARTS. THE MEETING COULD BE IN PARIS OR GENEVA AND
THE PURPOSE WOULD BE TO EXCHANGE VIEWS ON PERTINENT LAW
ENFORCEMENT ISSUES AND CONCERNS THAT WOULD BE RAISED BY A NEW
INSTRUMENT ON FORCED DISAPPEARANCES. HE INTIMATED THAT HIS
OWN JUSTICE MINISTRY LAWYERS HAVE CONCERNS THAT WOULD NEED TO
BE ADDRESSED IN SUCH AN INSTRUMENT AND SUGGESTED THAT PERHAPS
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THE U. S. AND FRENCH EXPERTS COULD FIND SOME COMMON GROUND IN
RESOLVING SOME OF THEIR RESPECTIVE CONCERNS. THOSE
DISCUSSIONS MIGHT INCLUDE, HE SUGGESTED, SUCH ISSUES AS
PENALIZATION, SANCTIONS, IMMUNITIES, JURISDICTION,
EXTRADITION, AND MUTUAL LEGAL ASSISTANCE. MISSION GENEVA
CONSIDERS THAT THIS SINCERELY TENDERED OFFER SHOULD BE GIVEN
SERIOUS CONSIDERATION IN WASHINGTON. SUCH A FOCUSED EXCHANGE
OF VIEWS AMONG SUCH CRIMINAL LAW EXPERTS COULD HELP SHAPE
MORE CONSTRUCTIVELY THE FOLLOW-ON NEGOTIATIONS IN GENEVA,
WITHOUT PREJUDICE TO THE USG'S CONTINUED RESERVATION OF ITS
POSITION REGARDING ANY INSTRUMENT THAT FINALLY EMERGES FROM
THE WG PROCESS.
9.
(SBU) COMMENT: THE WG'S TWO WEEKS OF DELIBERATIONS
WITNESSED A REMARKABLE CONVERGENCE OF SUBSTANTIVE,
NON-POLEMICAL LEGAL DISCUSSION COUPLED WITH A SPIRIT OF

UNCLASSIFIED

ER2220

COOPERATION AMONG ALL IN ATTENDANCElJW@LA~IFiIOO, STATE
DELEGATIONS, NGOS, AND ASSOCIATIONS OF FAMILIES OF THE
DISAPPEARED. THE PROGRESS ACHIEVED AND GOOD ATMOSPHERICS
WERE DUE IN LARGE PART TO THE FRENCH AMBASSADOR'S STRONG
LEADERSHIP AND SUBSTANTIVE COMPETENCE COMBINED WITH A HIGH
DEGREE OF PROFESSIONALISM AND SINCERITY AMONG THE WG MEMBERS.
THE FRENCH CHAIR SEEMS GENUINELY WEDDED TO THE IDEA OF
TRYING TO PRODUCE A DOCUMENT THAT WILL BE EFFECTIVE, BUT AT
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UNCLAS SECTION 03 OF 03 GENEVA 000272
SENSITIVE
FOR IO/SHA - TOM JOHNSON, L/HRR - ANDRE SURENA, L/HRR GILDA
BRANCATO, L/LEI - DENISE MANNING, L/PM, DRL/MLA - CHRIS
CAMPONOVO, DOJ/OIA - THOMAS BURROWS, DOD/GC - ELIANA
DAVIDSON
E.O. 12958: N/A
TAGS: PHUM, UNHRC, SOCI
SUBJECT: FINAL REPORT ON UNHRC WG SESSION ON FORCED
DISAPPEARANCES (JANUARY 6-17, 2003)
UNCLASSIFIED
PAGE 02
GENEVA 00272 03 OF 03 231604Z
THE SAME TIME REASONABLE IN COMBATTING ENFORCED
DISAPPEARANCES. HE HAS CLEARLY INDICATED THAT HE WILL RESIST
EFFORTS BY DELEGATIONS THAT SEEK TO INJECT EXTRANEOUS ISSUES
-- SUCH AS THE DEATH PENALTY AND NON-REFOULEMENT -- FEARING

UNCLASSIFIED
ER2221

THEY WOULD ONLY COMPLICATE THE EFFO~IM..l3SIFI~GREEMENT
ON A FORCED DISAPPEARANCES INSTRUMENT.
IN VIEW OF THIS
HELPFUL ATTITUDE, AND THE CHAIR'S STRONG DESIRE TO KEEP THE
U.S. IN THE GAME, WE SHOULD REMAIN ACTIVELY ENGAGED IN THE
PROCESS AND SEE IF A FINAL TEXT IS PRODUCED THAT MERITS
SERIOUS U.S. CONSIDERATION. US PARTICIPATION IN ALL ASPECTS
OF THE DISCUSSIONS WILL HELP TO ENSURE THAT THE WG, AND
HOPEFULLY THE FINAL TEXT, REMAINS FOCUSED.
10.
(SBU)
COMMENT CONTINUED. THAT SAID, THE NEGOTIATIONS
PROCESS WILL TAKE SOME TIME, POSSIBLY ANOTHER TWO YEARS, TO
CONCLUDE. A SECOND FORMAL TWO-WEEK SESSION WILL REQUIRE
AUTHORIZATION BY THE 59TH SESSION OF THE COMMISSION ON HUMAN
RIGHTS (17 MARCH-25 APRIL, 2003) PURSUANT TO A NEW RESOLUTION
ON ENFORCED DISAPPEARANCES (ANNUALLY PROPOSED BY THE FRENCH
GOVERNMENT). WE EXPECT A RESOLUTION CONTAINING SUCH
AUTHORIZATION TO BE ADOPTED.
THE JUST-CONCLUDED
INTER-SESSIONAL DELIBERATIONS REPRESENT AN INITIAL STAGE IN
WHICH ALL INTERVENTIONS WERE PRELIMINARY IN NATURE. MANY
STATES WERE SPEAKING WITHOUT FORMAL INSTRUCTIONS, AND NO
FORMAL WORKING TEXT HAS YET BEEN PRESENTED. AS NEGOTIATIONS
PROCEED AND BEGIN TO FOCUS ON A DRAFT TEXT, NEGOTIATORS FROM
STATES' FOREIGN AFFAIRS AND JUSTICE DEPARTMENTS WILL
INCREASINGLY BE CALLED UPON TO PROVIDE THEIR CONSIDERED
VIEWS. THAT NEXT STAGE COULD BEGIN LATER THIS YEAR. END
COMMENT.
MOLEY
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SENSITIVE
IO/SHA, DRL/MLA,L/HRR, L/LEI, L/PM
E.O. 12958: N/A
TAGS: UNGA, UNHR, PHUM, SOCI
SUBJECT: REPORTING CABLE ON FORCED DISAPPEARANCES TREATY
NEGOTIATIONS
REF: 03 GENEVA 3431
1. (SBU) SUMMARY:
In two weeks of intense
negotiations, the French Chair led the inter-sessional
Working Group mandated to prepare a binding normative
instrument on forced disappearances through a first, and
somewhat hurried, reading of the Chair,s draft instrument,
followed by a slightly more in-depth review of selected
articles that presented particular difficulty or sensitivity.
The Chair made clear his ambitious intent to complete the
negotiations process in time for adoption of a draft
instrument at the 2005 session of the Commission on Human
Rights (CHR) and subsequently by the UNGA. A few delegations
(notably U.S., Canada, and China) have attempted to slow down
the pace, underscoring that treaty negotiations require full
review and discussion and that the entire draft text remains
open and bracketed.
For the time being, the Chair shows no
sign of relenting from his pace, while relying upon a rough
consensus on less controversial provisions as evidence of a
coalescing instrument that requires only further review of
the most controversial issues.

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCillE M BOLSTER
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
ER2223

UNCLASSIFIED

B5

3. (SBU) The two-week session concluded with a
hurried review and ad referendum adoption of the Chair,s
draft report. The Chair confirmed his plan to produce a
revised Chair,s text by June to serve as the basis for a
two-week formal negotiating session in September, followed by
another formal two-week session in January 2005, which he
termed &the concluding negotiating session.8
He will seek
to further lock in his proposed timetable in the coming weeks
through adoption of a draft resolution on enforced
disappearances that will be sponsored by the French
delegation at the CHR session that begins mid-March.
END
SUMMARY.
4.

(SBU)

I

B5

~I
UN independent expert on forced disappearances,
Manfred Nowak, addressed the working group. His only
constructive contribution was the suggestion that i t probably
made more sense to adopt the new instrument as an optional
protocol to the International Covenant on Civil and Political
Rights (ICCPR).
Two current members of the UN expert Working
Group on forced disappearances reminded negotiators to bear
in mind the &woeful8 lack of Secretariat resources and

~

UNCLASSIFIED
ER2224

support for existing human rights mecha~~~~~I;B)ted
areas of potential overlap between their work and a proposed
new treaty monitoring body on forced disappearances.
UN
expert Louis Joinet, and occasionally representatives from
NGOs, punctuated the discussion with helpful legal analysis.
Families of the disappeared from Latin America and Asia,
some still searching for loved ones after twenty-six years,
bore witness to the horror of that crime and the reign of
terror that it spawned.
B5

6.
(SBU)
Chapter One.
(Definition). The Chair
appears ready to adopt the proposal made by the US and UK
that the definition of &enforced disappearance8 should
contain a state action requirement and that disappearances
committed by private parties should be addressed in a
separate criminalization provision. It remains to be seen,
however, whether this bifurcated approach will prevail over
continuing counter pressures.
B5

UNCLASSIFIED
ER2225

of a requirement to prove specific ~€il=AS;SIF<I~ the
disappeared person from the protection of the law. The UK
and Japan have proposed compromise definitions that would
refer to &arrest, abduction, detention, or other deprivation
of liberty8 or, alternatively, to &arrest, abduction,
detention, confinement or similar deprivation of liberty.8
Mens rea as a key element of the crime remains a subject of
live controversy.
The US delegation underscored that a
carefully framed definition is a critical fulcrum on which
the acceptability of many other provisions -- such as
quasi-universal jurisdiction, command responsibility, and
elimination of the defense of superior orders -- depends.
8.
(SBU)
Chapter Two and Three.
(Offenses and
Penalties, Protection Against Impunity). A critical issue is
whether the instrument will require criminalization of
&acts8 of forced disappearance (a formula used in Article 4
of the Torture Convention) or other language to this effect.
Such wording would allow a number of States (like the U.S.)
sufficient discretion within their existing national law to
penalize the offense(s) within the spirit of the instrument.
The French and Latin countries continue to strongly resist an
&acts8 approach and insist upon a requirement that States
Parties enact a new, separate or autonomous crime of
&enforced disappearance8 as defined in the instrument.
They argue that the punishment, jurisdiction, extradition,
legal assistance, statute of limitations, and other
provisions of the instrument would be more workable and
uniform among States Parties if they all enact a new criminal
offense denominated &enforced disappearance.8 The U.S. was
among the most forcefully outspoken Federal States in
supporting an &acts8 approach; India and Norway also made
strong interventions to this effect. In this regard, the
Chair formally invited India and Norway to provide papers
that would explain and demonstrate how, under their existing
legal system, they could punish crimes of enforced
disappearance using an &acts-based8 approach.
The Chair,
in a private aside, intimated that a similar paper from the
U.S. would also be welcome.
9.
(SBU)
Other issues addressed within this chapter
are: aggravating and mitigating circumstances; statutes of
limitations; command responsibility; prohibition of the
defense of superior orders; and amnesties and pardons.
Advances were made in clarifying the scope of the first three
of these subjects. Aggravating and mitigating circumstances
listed in the treaty will not be considered exhaustive. The
statute of limitations standard that seems to be gaining
increasing favor is the requirement that it be &commensurate
with the gravity of the offense8 rather than &the longest

UNCLASSIFIED
ER2226

period prescribed under local law8 (as ~~~i[~~I>
Chair,s text). And the standard for command responsibility
will track that contained in the ICC statute for non-military
superiors, which contains a higher mens rea requirement than
for military superiors (see Rome statute article 28) .
10.
(SBU)
The United States was isolated in urging
retention of the good soldier defense to ensure fairness and
due process for the accused. We noted our objection for the
record, underscoring that the eventual acceptability of this
article may be linked to the specificity and mens rea
components of the definition of the crime. Our point was
that innocent actors following lawful, or ostensibly lawful,
orders should not be prosecuted as accomplices to a crime.
11.
(SBU)
The issue of amnesties is among the most
sharply contested in the evolving instrument. Some
delegations, families of the disappeared, and NGOs believe
that this instrument should in no way absolve enforced
disappearances by means of amnesty provisions, fearing this
would foster impunity and negate the value of the instrument.
Other delegations emphasized the constitutional prerogatives
of executives and legislatures in granting pardons and
condoning amnesties. The Chair, however, appears to be
leaning toward deleting any reference to amnesties from the
instrument. He noted that international law and practice on
amnesties is still evolving and that each State should be
allowed to reach its sovereign decision on this sensitive
subject. The Chair also deleted a proposed article in the
instrument on asylum.
12.
(SBU)
Chapters Four and Five.
(Domestic
Prosecution and International Cooperation). There is strong
support to include a requirement that States Parties exercise
quasi-universal (&present in8) jurisdiction, so that any
fugitive who is accused of enforced disappearance and is
found within their territory will be subject to either
prosecution or extradition. The US delegation submitted a
proposal urging that this basis of jurisdiction (as well as
passive personality) be made optional at the discretion of
the State Party, but this approach currently seems unlikely
to prevail. Delegations remain divided oVer whether a
reservation with respect to such jurisdiction would be
incompatible with the obiect and purpose of the instrument.
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UNCLASSIFIEI>
ER2227

UNCLASSIFIED

I

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13.
(SBU)
Importantly, what began as an express
prohibition of military tribunals is now evolving towards a
requirement to prosecute enforced disappearance crimes before
&independent and impartial tribunals with due process
guarantees.8 Although the investigation, extradition, and
legal assistance formulations within the proposed instrument
were tightened during this round of negotiations, they still
need further improvement. We will continue to oppose other
problematic provisions within this chapter, such as one
requiring &irnrnediate8 consular notification regarding
someone accused of enforced disappearance. That standard
could conflict with a matrix of existing multilateral and
bilateral consular notification provisions.

14.
(SBU)
Chapters Six and Seven.
(Measures of
Prevention and Rights of Victims). These two chapters remain
among the most difficult in the draft instrument. They seek
to establish an unqualified &right of families and others
with a legitimate interest to know8 the whereabouts and
other circumstances of a disappeared person. They attempt to
regulate and specify the type of information to be provided.
They seek to penalize the provision of misinformation and
require training of official and medical personnel. They
also contain broad provisions on civil remedies, requiring
compensation, rehabilitation, and other forms of reparation.
There was little consensus on these articles, and substantial
further discussion is required.
15.
(SBU)
The US delegation, standing virtually alone
on this issue, made a valiant effort to avoid recognition of
an unqualified and enforceable 8right to know8 as an
established concept in human rights law, while strongly
recognizing, on compassionate grounds, the fundamental need
of families to seek the truth and receive information.
Toward this end, and with timely and critical support from
the Department, the US delegation offered an alternate text
that tracks language in the ICCPR (Article 19(2» on &the
freedom to seek and receive information.8 Many delegations
seek to have this &right8 framed as both unqualified and
universal, with no circumstances allowing for derogation or
other exception.
Notwithstanding recognition by Japan,
Canada and some other delegations as to a possible need in
certain situations to balance privacy and law enforcement
interests against a legitimate demand for information in the
context of an enforced disappearance,1

'-----------

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UNCLASSIFIED
ER2228

UNCLASSIFIED

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NGOs and families of the disappeared have
passionately pled that this should be one of the core
principles of this instrument and have found strong support
among many European and Latin States. Moreover, the Chairman
has said to the U.S. delegation privately on several
occasions that he regards inclusion of this right in the

rnn«_n, an a'ex _,.

I

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16.
(SBU)
The non-refoulement provision will likely
be revised to conform to international standards (as a result
of interventions by the U.S. and other delegations), although
this is not yet a done deal.
It remains unclear whether
differences of view regarding the provisions on disappeared
children will be resolved in favor of the &best interests of
the child8 standard (a principle enshrined in Article 3,
paragraph one of the Convention on the Rights of the Child
and used in the US for custody cases) or the &custodial
parent8 standard (found in Hague Convention on Abduction ),
particularly in addressing the abduction or surreptitious
transfer of disappeared children to non-biological families.
17.
(SBU)
PART TWO OF THE INSTRUMENT.
(Treaty
Monitoring Body). There was substantial but incomplete
discussion of the proposed mandate of the treaty monitoring
body envisioned for this instrument. There was widespread
support for an &urgent action request8 procedure when there
are credible grounds to believe a forced disappearance has
occurred. There was also support for on-site visits
predicated upon state consent, although some concern was
expressed about proposed far-reaching powers that would be
granted to the treaty body once the site visit is approved by
the State Party.
Some States supported expanding treaty
body powers to include authority to receive individual
petitions and to require a State to offer reasons for
refusing a site visit.
China proposed, in lieu of creating
a treaty monitoring body, having a follow-up conference of
States.
18.
(SBU)
There is increasing support among a number
of delegations for using an existing treaty monitoring body,
including the possibility of creating -- under the auspices
of such a body -- a sub-committee on forced disappearances.
This position gained further momentum when two expert members
of the current UNCHR special mechanism on forced
disappearances highlighted areas of potential overlap between
their work and that of a treaty body, also underscoring the

UNCLASSIFIED
ER2229

severe and chronic underfunding of ~\;lY}\~IF1~
distributed a paper indicating that in 1999 the chair of
their expert group questioned the need for a legally binding
instrument on forced disappearances but demurred as to
whether this remains the chair,s current thinking.
19.
(SBU)
PART THREE. (Treaty clauses).
The Working
Group discussed principally Articles III-E (non-derogation)
and III-F (Provisions of International Humanitarian Law), the
two most critical to USG interests. Following lengthy US and
International Committee of the Red Cross (ICRC) interventions
on the distinctions between international human rights law
and international humanitarian law, the Chair announced that
he would include in his next text a new III-F clause
acceptable to both the US and the ICRC that will read as
follows. QUOTE The present instrument is without prejudice
to the provisions of international humanitarian law,
including the obligations of High Contracting Parties to the
four Geneva Conventions of 12 August 1949 and the Additional
Protocols thereto of 8 June 1977, or to the opportunity
available to any State Party to authorize the ICRC to visit
places of detention in situations not covered by
international humanitarian law. UNQUOTE Inclusion of such an
acceptable IHL clause making clear that the law of armed
conflict remains the lex specialis governing situations of
armed conflict would mean that Article III-E on
non-derogation would remain unchanged.
20.
(SBU)
Finally, the Chair indicated continued
'support for keeping out of the text a clause that would
flatly bar any reservations to the instrument, preferring to
allow international treaty law to govern the subject. He
noted that this approach would also foster the goal of wider
acceptance of the instrument within the international
community. Additionally, the Chair noted that most
delegations supported in principle a preambular reference to
&crimes against humanity8 and that, in his view, it would
also be useful to add an operative provision on this subject.
The United States delegation expressed serious concerns
about any such references in the instrument and reserved to
make i t clear that there was no consensus in the room on such
an approach. MOLEY
Moley

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UNCLAS SECTION 01 OF 02 GENEVA 000095
SENSITIVE
FOR IO/SHA - TOM JOHNSON, L/HRR - ANDRE SURENA, L/LEI DENISE MANNING, L/PM, DRL/MLA - CHRIS CAMPONOVO, DOJ/OIA THOMAS BURROWS, DOD/GC - ELIANA DAVIDSON
E.O. 12958: N/A
TAGS: PHOM, UNHRC, SOCI
SUBJECT: REPORT ON OPENING OF WG SESSION ON FORCED
DISAPPEARANCES
REF: 02 GENEVA 005200
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1.
(SBU)
SUMMARY.
IN WEEK ONE, THE UNHRC WORKING GROUP
SESSION ON A PROPOSED LEGALLY BINDING INSTRUMENT ON FORCED
DISAPPEARANCES HAS BEEN MOVING SWIFTLY, CONTRARY TO THE
ORIGINAL PREDICTIONS OF THE CHAIR THAT IT WOULD TAKE THE FULL
TWO-WEEK SESSION TO COMPLETE GENERAL DISCUSSION AND THE
DEFINITION OF FORCED DISAPPEARANCES. DISCOURSE HAS BEEN
HIGHLY SUBSTANTIVE AND FOCUSED, INCLUDING THE CONTRIBUTIONS
OF MOST OF THE NGOS (NOTABLY THE INTERNATIONAL COMMISSION OF
JURISTS, AMNESTY INTERNATIONAL, HUMAN RIGHTS WATCH, AND THE
INTERNATIONAL FEDERATION OF HUMAN RIGHTS) AND THE ELOQUENT
PRESENTATIONS OF MOTHERS OF THE DISAPPEARED. THERE IS GOOD
WILL IN THE ROOM, IN LARGE PART DUE TO THE EXCELLENT
ATMOSPHERICS SET BY THE FRENCH AMBASSADOR SELECTED TO CHAIR

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 24 AUG 2009 200706444

UNCLASSIFIED
ER 2231

THE WG AND THE UNIVERSAL RECOGNITION AMONG DELEGATIONS OF THE
REPREHENSIBLE NATURE OF FORCED DISAPPEARANCES. STILL, FAULT
LINES ARE BEGINNING TO EMERGE. SEE ACTION REQUESTS IN PARA. 6
BELOW. END SUMMARY.

UNCLASSIFIED

2.
(SBU) THE WG SESSION OPENED ON JANUARY 6. AFTER THE
UNANIMOUS SELECTION OF THE CHAIR AND SETTING OF THE AGENDA,
MR. JOINET, A UN HUMAN RIGHTS EXPERT WHO HAS BEEN WORKING ON
THE PROBLEM OF FORCED DISAPPEARANCES FOR CLOSE TO TWO
DECADES, MADE A PRESENTATION. DURING THE GENERAL DEBATE THAT
FOLLOWED, VARIOUS DELEGATIONS EXPRESSED VIEWS RANGING FROM
(1) SWIFT ADOPTION OF A COMPREHENSIVE INSTRUMENT PRESCRIBING
BROAD CRIMINALIZATION, PREVENTION AND REPARATION MECHANISMS
(ENDORSED BY GRULAC) TO (2) ADOPTION OF A "SPECIFIC,
EFFECTIVE AND UNIVERSAL" INSTRUMENT ADDRESSING ALL ASPECTS OF
THE PROBLEM (FORMAL STATEMENT OF THE EU DELIVERED BY GREECE)
TO (3) READINESS TO ACTIVELY ENGAGE IN DISCUSSIONS, WHILE
UNCLASSIFIED
PAGE 03
GENEVA 00095 01 OF 02 101000Z
LAYING DOWN EXPLICITLY SOME INITIAL GENERAL AREAS OF CONCERN
REGARDING SUGGESTED PROVISIONS/CONCEPTS (THE U.S. AND CANADA)
TO (4) THERE IS NO DEMONSTRATED NEED FOR AN INSTRUMENT (INDIA
AND TO A LESSER DEGREE SAUDI ARABIA AND PAKISTAN) .
(TEXT OF
U.S. INITIAL STATEMENT HAS BEEN SENT ELECTRONICALLY TO L/HRR,
IO/SHA, AND DRL/MLA). ON JANUARY 7 THE INDEPENDENT EXPERT
PROF. NOWAK PRESENTED HIS LENGTHY AND COMPREHENSIVE REPORT
AND ANSWERED NUMEROUS THOUGHTFUL QUESTIONS. I

B5

3.
(SBU) CORE ISSUES THAT EMERGED OUT OF THE FIRST TWO DAYS
OF DISCUSSION INCLUDE (1) COVERAGE OF NON-STATE ACTORS IN THE
TREATY, (2) THE INTER-RELATIONSHIP OF HUMAN RIGHTS LAW,
INTERNATIONAL HUMANITARIAN LAW, AND INTERNATIONAL CRIMINAL
LAW, (3) NON-DEROGATION OF THE DUTY TO REFRAIN FROM
COMMITTING ENFORCED DISAPPEARANCES AND, MORE PROBLEMATICALLY
FOR SOME, OF MEASURES OF PROTECTION SUCH AS HABEAS CORPUS,
(4) NEED FOR MEASURES AT THE NATIONAL VICE INTERNATIONAL
LEVEL, (5) FORMAT OF THE PROPOSED INSTRUMENT, THAT IS,
SEPARATE CONVENTION VICE OPTIONAL PROTOCOL TO ICCPR OR
CONVENTION AGAINST TORTURE, AND THE CONCOMITANT QUESTION OF
TREATY MONITORING BODY, AND (6) STRENGTHS AND WEAKNESSES OF
VARIOUS REFERENCE TEXTS. ON THE LATTER POINT THE UNITED
STATES (AND OTHERS) FLAGGED DEFICIENCIES IN THE "98 DRAFT
TEXT, OTHER DELS WARMLY EMBRACED IT, AND THE CHAIR REASSURED
THE ASSEMBLED THAT ONLY THE 1992 UNGA DECLARATION REPRESENTED
THE UNCONTESTED CONSENSUS OF STATES.

UNCLASSIFIED
ER 2232

UNCLASSIFIED

UNCLASSIFIED

PAGE 04
GENEVA 00095 01 OF 02 101000Z
4.
(SBU) ON WEDNESDAY THE SESSION MOVED FROM GENERAL DEBATE
TO SPECIFIC, SUBSTANTIVE DISCUSSION OF THE PROPOSED CONTENTS
OF A LEGAL INSTRUMENT. AFTER SOME BACK AND FORTH ON THE
METHODOLOGY FOR EMBARKING ON OUR WORK, THE GROUP CONCLUDED
THAT THIS SESSION WILL FOCUS ON CONCEPTS AND ISSUES, AS
DELEGATES CANNOT BE EXPECTED AT THIS EARLY JUNCTURE TO
ADDRESS IN DEPTH A DRAFT TEXT WITH INSTRUCTIONS FROM
CAPITALS. TO FACILITATE AN ORDERLY REVIEW OF THOSE CONCEPTS
AND ISSUES, A "DISCUSSION GUIDE" HAS BEEN PREPARED BY THE
CHAIR (COPY TO BE FORWARDED TO THE DEPARTMENT). THERE
FOLLOWED A USEFUL DISCUSSION OF THE DEFINITION OF FORCED
DISAPPEARANCES, WITH SOME CONVERGENCE ON CORE ELEMENTS SUCH
AS CONCEALMENT OF WHEREABOUTS, BUT WITH STARK DIVERGENCES OF
VIEW BECOMING APPARENT. THESE INCLUDE, AS NOTED ABOVE, THE
ISSUES OF TREATY COVERAGE OF PRIVATE PARTIES' ACTS AND ALSO
INCLUDING IN THE DEFINITION OF "ACTS TAKING PLACE AT ALL
TIMES", I
THE U. S .L.......:D=E:="L=E:-::::GA=T==I:-::::O:=:N;---;;;RE=Q:-=.UE=S==T=E==D:---::T=HA==-=T=-=T==H=-=I:-::S=--=LA=-=-=T==T==E==R=--=P:="':O=-=I==N'::T::-:BE==------'
REMOVED FROM THE DEFINITION AND DEFERRED TO A LATER
DISCUSSION OF THE RELATIONSHIP BETWEEN THIS INSTRUMENT AND
OTHER CONVENTIONS, NOTABLY THE GENEVA CONVENTIONS.

B5

5.
(SBU) U.S. DELEGATION EXPRESSED PRELIMINARY THOUGHTS ON
THE DEFINITIONAL ISSUE, NOTING OUR OPPOSITION TO THE
UNCLASSIFIED
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GENEVA

00095

02 OF 02

PTQ5697
101001Z

LOG-OO
EAP-OO
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TEST-OO
SAS-OO

AF-OO
AID-OO
AMAD-OO ClAE-OO WHA-OO
EB-OO
ED-01
EUR-OO
UTED-OO HHS-01
INR-OO
L-OO
NEA-OO
DCP-01
NSAE-OO
OPIC-01 PRS-OO
P-OO
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SP-OO
TRSE-OO USIE-OO SA-OO
PRM-OO
DRL-02
/009W
------------------22FCD3 101001Z /38
R 100953Z JAN 03
FM USMISSION GENEVA
TO DEPTJUSTICE WASHDC
SECSTATE WASHDC 1958
INFO DOD WASHDC

SRPP-OO
H-01
NSCE-OO
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UNCLAS SECTION 02 OF 02 GENEVA 000095

UNCLASSIFIED
ER 2233

UNCLASSIFIED

SENSITIVE

FOR IO/SHA - TOM JOHNSON, L/HRR - ANDRE SURENA, L/LEI DENISE MANNING, L/PM, DRL/MLA - CHRIS CAMPONOVO, DOJ/OIA THOMAS BURROWS, DOD/GC - ELIANA DAVIDSON
E.O. 12958: N/A
TAGS: PHUM, UNHRC, SOCI
SUBJECT: REPORT ON OPENING OF WG SESSION ON FORCED
DISAPPEARANCES
INCLUSION OF PURELY PRIVATE ACTORS IN THE TREATY, FOR BOTH
UNCLASSIFIED
PAGE 02
GENEVA 00095 02 OF 02 101001Z
THEOLOGICAL AND PRACTICAL REASONS. WE BASED OUR INTERVENTIONS
ON THE GENERAL INSTRUCTIONS FOR THIS SESSION CLEARED WITHIN
STATE, JUSTICE'S COMMENTS ON OUR DRAFT INSTRUCTIONS, AND
INTER-AGENCY INSTRUCTIONS AND AGENCY VIEWS PREPARED IN
CONNECTION WITH NEGOTIATION OF THE OAS FORCED DISAPPEARANCES
CONVENTION IN 1992-94. ON JANUARY 9, WE MOVED FROM
DISCUSSION OF THE DEFINITION OF ENFORCED DISAPPEARANCE TO
CRIMINALIZATION AND JURISDICTION TO PROSECUTE SUCH AN
OFFENSE.
INTERESTINGLY, NUMEROUS INITIAL INTERVENTIONS WERE
PRESENTED BY UN AMBASSADORS IN GENEVA, THE JAPANESE MADE AN
ELEVENTH HOUR DECISION TO BRING IN A TEAM OF TWO FROM TOKYO
(INCLUDING A TREATY LAWYER), AND THE CANADIANS ARE
REPRESENTED BY A DEPARTMENT OF JUSTICE ATTORNEY FROM OTTAWA
(AS WELL AS A LOCAL REPRESENTATIVE). STATES ARE TAKING THIS
EXERCISE SERIOUSLY.
THE SIZE AND COMPOSITION OF THE U.S.
DELEGATION HAS ALSO BEEN NOTICED AND WELL-RECEIVED BY THE
CHAIR AND A NUMBER OF DELEGATIONS.
6.
(SBU) COMMENT AND ACTION REQUESTS. THE DISCUSSION TO
DATE HAS MADE IT VERY CLEAR THAT THE WORKING GROUP WILL
PROBABLY REACH, AND THUS WE SHOULD BE PREPARED TO ADDRESS,
CONCEPTS AND ISSUES SET FORTH IN THE "DISCUSSION GUIDE" NOTED
ABOVE. DURING THE SESSION, THE U.S. HAS MADE CLEAR THAT IT IS
EXPRESSING PRELIMINARY VIEWS ONLY. HOWEVER, IN VIEW OF THE
FAST-PROGRESSING AND SUBSTANTIVE NATURE OF THE DISCUSSIONS,
WE REQUEST THAT DOD/GC PROVIDE EARLY COMMENTS AND CLEARANCE
ON THE GENERAL AND ARTICLE-BY-ARTICLE INSTRUCTIONS EARLIER
PROVIDED FOR REVIEW. WE ALSO SOLICIT ANY ADDITIONAL COMMENTS
FROM STATE OR JUSTICE ON THE ARTICLE-BY-ARTICLE DRAFT OR
OTHERWISE THAT COULD BE OF BENEFIT TO THE DELEGATION DURING
THE COURSE OF THIS SESSION, WHICH ENDS JANUARY 17, AND IN
UNCLASSIFIED
PAGE 03

GENEVA

00095

02 OF 02

101001Z

UNCLASSIFIED
ER 2234

PREPARATION FOR FUTURE SUCH SESSIONS.
FOLEY

UNCLASSIFIED

UNCLASSIFIED

«

END OF DOCUMENT

»

UNCLASSIFIED
ER 2235

Y3

UNCLASSIFIED
ORIGIN L-OO
INFO

LOG-OO
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AID-OO
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INL-OO
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DODE-OO
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/OOlR

DS-OO
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VCI-OO
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RELEASED IN PART
Bl, 1.4(D), B5

181098
SOURCE: CBLEXCLS.009468
DRAFTED BY: L/HRR:RHARRIS/EASWAD -- 10/31/2006 202-736-7082
APPROVED BY: IO:MLAGON
DRL/MLGA:LSICADE
IO/RHS :RLEATHAM
L/PM:AHAINES
L/T:JKIM
DESIRED DISTRIBUTION:
10, DRL, L
------------------414758 010025Z /38
o P 010020Z NOV 06
FM SECSTATE WASHDC
TO USMISSION USUN NEW YORK IMMEDIATE
INFO USMISSION GENEVA PRIORITY
CON F IDE N T I A L STATE 181098
E.O. 12958: DECL: 10/30/2016
TAGS: PREL, PHUM
SUBJECT: INSTRUCTIONS: DISAPPEARANCES CONVENTION AT THIRD
COMMITTEE

Classified By: Deputy Assistant Secretary Mark Lagon: Reasons 1.4 B/D

1.
(U) DEPARTMENT PROVIDES THE INSTRUCTIONS IN
WITH RESPECT TO ACTION ON THE FRENCH RESOLUTION
ADOPT AND OPEN FOR SIGNATURE THE DISAPPEARANCES
ADDITIONAL BACKGROUND ON THE DECLARATION IS SET
PARAGRAPH 2.

PARAGRAPH 3
THAT WOULD
CONVENTION.
FORTH IN

2.
(SBU) WHILE THE DISAPPEARANCES CONVENTION WAS THE RESULT
OF SEVERAL YEARS OF CONTENTIOUS NEGOTIATIONS, IT WAS
ULTIMATELY ADOPTED BY CONSENSUS AT THE HUMAN RIGHTS COUNCIL
IN JUNE 2006. AS MANY DELEGATIONS WHO PARTICIPATED IN THE
PROCESS KNOW (INCLUDING FRANCE), THE UNITED STATES HAS MANY
LEGAL CONCERNS ABOUT THE TEXT OF THE CONVENTION. THAT SAID,
AS A GENERAL RULE, ADOPTION OF A TREATY BY THE UN GENERAL
ASSEMBLY IS A PROCEDURAL STEP THAT MERELY DENOTES THE
CONCLUSION OF THE NEGOTIATION FINALIZING THE TEXT OF THE
TREATY AND PRECEDES THE TREATY'S BECOMING FORMALLY OPEN FOR

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE In: 24 AUG 2009 200706444

UNCLASSIFIED
ER 2236

SIGNATURE.
IN THE CASE OF THIS TREAT Y , ITS ADOPTION BY THE
GENERAL ASSEMBLY WILL NOT RESULT IN ANY LEGAL OBLIGATION ON
THE PART OF THE UNITED STATES. \

I THE

'--------'

UNCLASSIFIED
B5

TEXT NEEDS TO BE INTRODUCED AS IT APPEARS BELOW.

3.
(C) DEPARTMENT PROVIDES THE FOLLOWING INSTRUCTIONS WITH
RESPECT TO ACTION ON THIS CONVENTION:

Bl

(B)
DELEGATION IS REQUESTED TO READ THE FOLLOWING
INTERAGENCY-CLEARED STATEMENT AT THE TIME OF ADOPTION OF THE
TREATY:
"THE UNITED STATES THANKS THE CHAIR OF THE WORKING
GROUP TO DRAFT A CONVENTION FOR THE PROTECTION OF ALL PERSONS
FROM ENFORCED DISAPPEARANCES AND ALL PARTICIPANTS IN THE
WORKING GROUP FOR FOCUSING ATTENTION ON THIS IMPORTANT ISSUE.
THE UNITED STATES HAS BEEN AN ACTIVE PARTICIPANT IN EACH AND
EVERY SESSION OF THE WORKING GROUP TO DRAFT A CONVENTION FOR
THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES.
GIVEN OUR FULL AND CONTINUOUS PARTICIPATION, WE HAVE ALREADY
PROVIDED OUR UNDERSTANDING OF THE INTENT OF STATES THAT

UNCLASSIFIED
ER 2237

PARTICIPATED IN THE WORKING GROUP ON A NUMBER OF CORE ISSUES,
WHICH ADDITIONALLY EXPRESSES OUR CONCERNS WITH THE FINAL
TEXT. WE REAFFIRM AND INCORPORATE HEREIN OUR STATEMENT
PRESENTED TO THE HUMAN RIGHTS COUNCIL THIS PAST JUNE, WHICH
CAN BE FOUND AT A/HRC/l/G/l 27 JUNE 2006. THE UNITED STATES
HAS REQUESTED THAT THIS INTERVENTION AND STATEMENT BEFORE THE
COUNCIL BE MADE PART OF THE OFFICIAL RECORD OF THE GENERAL
ASSEMBLY IN REGARD TO THE PROPOSED CONVENTION."

UNCLASSIFIED

(C)
DELEGATION IS REQUESTED TO POST BOTH THE EXPLANATION OF
POSITION IN 3(B) AND THE HRC STATEMENT ON THE USUN WEBSITE
AFTER ADOPTION OF THE CONVENTION. DELEGATION IS ALSO
REQUESTED TO HAVE THE EXPLANATION OF POSITION AND THE HRC
STATEMENT MADE AN OFFICIAL DOCUMENT OF THE THIRD COMMITTEE AT
AN APPROPRIATE TIME GIVEN STRATEGY ISSUES IN 3(A).
RICE

NNNN

UNCLASSIFIED
ER 2238

~_

C,/':)./,

Preparations for USG defense of the Second Periodic Report of the United States
concerning implementation of the Convention Against Torture,
May 5-May 8, 2006

GEL

lJNCLASSIFIED

J\

q; I ~-RELEASED IN FULL

1. Overview of the time-table for the USG delegation in Geneva - (delegation
meeting, hearing schedule)
2. Mechanics ofhearing - (USG's opening statements, script of USG presentation,
note-takers, additional questions from the Committee, Committee's cOliclusions
and recommendations)
3. Agency reps and their participation in USG's presentation
4. Strategy for addressing additional questions from the Committee
5. Additional work-products
a. Script ofUSG presentation - opening statements, summaries of answers to
Committee's list of questions.
b. Briefing book - DOS to provide
c. Hard Questions - each agency to draft, submit to DOS
d. Press Guidance - DOS to draft, and circulate for interagency clearance
6. TraveVother administrative matters
a. Final delegation list, accreditation
b. Travel, hotel reservations

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER·
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
FP0658

UNCLASSIFIED
RELEASED IN FULL
From:

DePirro, Velia M
Thursday, December 01,200511:12 AM
Williams, Kendi
FW: press gUidance and noon briefing language on alleged secret prisons

Sent:
To:

Subject:

for new press guidance file
Velia De Pirro
Political Counselor
U.S. Mission Geneva
(41) 22-749-4111
"-'-Orlglnal Message-·-From:
Robinson, Brooks A
Thursday, December 01, 2005 10:52 AM
Sent:
To:
Moley, KevIn E; cassel, Lynn L; Kovar, Jeffrey 0; Barton, Paula); DePlrro, Vella M; Levin, Jan; campbell, Piper
; cassIdy, Joseph F; Siekert, Magda S; LUbel:kln, Wendy C
Subject;
press guidance and noon briefing language on alleged secret prisons

L Press Guidance
November 30, 2005
Alleged CIA "Secret Prisons" in Europe

Question:
Have we received the letter from Jack Straw regarding allegations that the CIA has
maintained secret prisons in Europe? What is your answer?
Answer:

»

We received today a letter to the Secretary from Jack Straw on behalf of the
European Union in which he asks for information from the United States
regarding press reports about the alleged detention or transportation of
terrorist suspects in or through EU member states.

»

We are of course aware of those press reports and the parliamentary and
public concerns they have created.

»

As the Secretary and I have said, the United States will respond to the EU's
inquiry as soon as we are able. In the meantime, we will of course remain
in regular communication with our European allies about a wide range of
issues, including the war on terrorism.

If Pressed:

What do you anticipate the United States will say in response to the
letter?

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
FP0659

UNCLASSIFIED

)- It would not be appropriate for me to speculate about that at this time.

UNCLASSIFIED
FP0660

UNCLASSIFIED

Drafted:

LIEVR: DTerrill

Cleared:
L: SWitten - ok
EURlERA: RFaucher· ok
S/WCI: ASagor· ok

Noon briefing, 11130/05
QUESTION: So if you are prepared to go as far as saying that as a theoretical legal matter
that's recognized, how about the issue of secret prisons? I don't know if those complaining in
Europe have actually made the argument that these things are illegal. They may not like them,
but are -- in principle, having secret prisons, would that be illegal?

MR. MCCORMACK: Again, what you're getting back to is the question that we spent quite a
bit oftime on yesterday, the substance, the core of your question. And we have all seen the
news reports about the allegations of secret detainee sites. It's not a -- these are reports that I
cannot confirm or deny the substance offor you. So the sort of core of your question is just not
one that I can get into from any particular angle. I appreciate the fact we're trying to come at it
from a different angle. I can't do that.
One thing I can do for you is I know it's of interest to all of you -- we talked about it yesterday -is we have received a letter from the EU presidency, from Foreign Secretary Straw. The UK is
currently -- currently holds the rotating presidency of the EU. And although I'm not in a
position to release the letter for you, just as a matter of practice, I think that that would be
something that would be up to the UK to decide whether or not they, in fact, release the letter, I
can describe the gist of it for you.
I would say that what it does is it asks for information from the United States regarding press
reports about the aUeged detention or transportation of terrorist suspects in or through EU
member states. And the letter does talk about the fact that these press reports have been -- have
attracted considerable attention among European publics as well as parliaments.

So our reaction -- we have just received the letter recently. I think it was either last night or
today. I didn't get the exact time. We will, as I said yesterday, endeavor to respond to this
letter to the best of our ability in a timely and forthright manner. We haven't had a chance to
compose that response so I'm not going to presuppose what will be contained in the response.
But as I said yesterday, we will try to -- when we do provide that response to the EU --I'll try to
provide as much information as I possibly can to you about that response.
Yes.
QUESTION: Does the letter characterize detention or overflights as illegal under EU law?

UNCLASSIFIED
FP0661

UNCLASSIFIED

MR. MCCORMACK: No, no. It talks about alleged U.S. detention or transportation. It
talks in terms of the news reports and these allegations.
QUESTION: Does it do anything other than ask for infonnation?
MR. MCCORMACK: No.
QUESTION: Have you -- you just said you don't have a specific timeline for answering that,
but have you made any further progress on answering the queries that were already outstanding?
MR. MCCORMACK: I have no updates for you on that.
QUESTION: When you say it's been -- it's going to be a timely answer, is it that the Secretary
will deliver the response when she's in Europe?
MR. MCCORMACK: Yeah. I'm sure that this will be a question that she has discussions
with her counterparts in Europe. I'm sure it will come up.
QUESTION: But you don't --

MR. MCCORMACK: As for the response to the letter, as I said, I can't give you a specific
timeline at the moment, but we will do our best to respond in as timely a manner as possible.
Yes.
QUESTION: Wouldn't it be awkward, though, for her to be in Europe without having given a
response on this? I mean, do you expect to be able to do it before she leaves?
MR. MCCORMACK: We'll see what the timeline is. At this point I can't speak to exactly
when we will provide a response to Foreign Secretary's Straw's letter. I can say that the
Secretary will look forward to having whatever discussions concerning this matter do arise in her
meetings in Europe.
I would note one thing -- yesterday -- from yesterday's discussion. I would underline it again
for you today. All of these questions concerning these allegations of overflights and secret
detainee sites for those who may have engaged or intended to engage in terrorist activities all
take place within the context of fighting a war against terrorism. As I.said yesterday, this is a
different kind of war. This is a war in which countries -- European, American and others around
the world -- employ all their aspects of national power in order to fight a shadowy enemy, an
enemy that doesn't recognize any rules, doesn't recognize any laws, doesn't recognize any
regulations. Their sole intent is to try to kill innocent civilians in an attempt to undennine our
way of Hfe.
So that is not to say the United States acts in contravention to its laws, the Constitution or its
international obligations. But it is to say that this is a different kind of war in which we use our
military assets, that we use our assets to dry up terrorist financing, that we use our law

UNCLASSIFIED
FP0662

UNCLASSIFIED

enforcement assets, that we use our intelligence assets. And inasmuch as our intelligence
community and intelligence agencies are engaged in fighting this war on terrorism, I'm not in a
position to talk about some potential actions that our intelligence community mayor may not be
engaged in. I don't think -- I think the American publics as well as foreign publics certainly
understand that because to discuss -- to potentially discuss such actions undermines -- would
undermine our ability to fight the war on terrorism.
So I note this just to bring to your attention, to bring to the attention of the American public as
well as foreign publics, that this is a different kind of war that we're fighting. And make no
mistake, we are in a war. These individuals, these groups, are intent and they continue to plot
and plan to try to kill Americans, Europeans and others around the world.
Yes.
QUESTION: As you say, this is a different kind of war and the President has also said that
different kind of tactics are probably needed to fight this kind of war. So does that mean that
because it's a different kind of war with different kind of threats, that the use of covert sites
would be justified?
MR. MCCORMACK: Again, this gets back to that same core point that, you know, I just am
not at liberty from this podium to discuss, to either confirm or deny.
QUESTION: One more?
MR. MCCORMACK: We'll come back to you.
Yes, sir.
QUESTION: Does the United States through outreach and diplomacy believe that the publics
of Europe and the government ofEurope -- governments of Europe also believe that this is a
different kind of war that perhaps requires different kinds of tactics?
MR. MCCORMACK: Well, you know, I think -- I don't have any particular polling data. I
haven't seen any polls on that and, you know, I leave it to you whether or not you believe, you
know, any particular poll on these subjects. But I think the fact -- the very fact that the people
of Europe themselves have experienced terrorism, they have suffered losses in this war against
terrorism, whether that is on the battlefields of Afghanistan or Iraq or in the capitals of Madrid or
London, that I think they understand very clearly what kind of war it is that we're fighting, that
this is an enemy that is detennined to strike at them when they are engaged in their daily
activities -- riding a bus, getting on a train, flying on an airplane.
I think that people are acutely aware of the fact that this is a different kind of war and the very
fact that we do -- that we have managed to build an extraordinary cooperation on a variety of
different levels with European governments as well as other governments in fighting this war on
terrorism, I think is testimony to the fact that governments certainly understand. I think that
reflects the will of the people as well that we are fighting a different kind of war and that we

UNCLASSIFIED
FP0663

UNCLASSIFIED

have built up relationships on law enforcement, the military, in terms of intelligence cooperation
in fighting this war,

QUESTION: But in Europe the people didn't know about these secret prisons, as the U.S.
public didn't know about it, so when you say that they understand this kind of war and that your
partnerships are testimony to that, don't they deserve to have the answers then that they -- their
governments and we are asking you?
MR. MCCORMACK: Again, this gets back to Saul's point to and Sue's -- and Sue's point.

QUESTION: Well, of course, it's the same issue. It's all going to get back to that.
MR. MCCORMACK: Right. And I -- again, I'm happy to entertain these questions. I can't
go any further than I have in my previous answers to that particular point.

UNCLASSIFIED
FP0664

UNCLASSIFIED
SECRET

RELEASED IN FULL
Intersesslonal Open-ended Working Group to
elaborate a draft legally binding normative instrument
for the protection of all persons from enforced
disappearance

Dis!.
RESTRICTED
ElCN.4/2005/WG.22/CRP.1
3 February 2005

Fourth session
ENGLISH

Geneva, 31 January-l1 February 2005

Original: FRENCH

Introduction
J.

By resolution 2004/14 dated 19 April 2004, the Commission on Human Rights at its

sixtieth session requested the Intersessional Open-ended Working Group to elaborate a draft
legally binding normative instrument for the protection of all persons from enforced
disappearance to meet for a period of 15 working days in two formal sessions before the
sixty-first session of the Commission, with one session of 10 working days and one session of

5 working days with a view to the prompt completion of its work. Pursuant to that resolution,
the Working Group held its third and fourth sessions at the Palais des Nations in Geneva from
4 to 8 October 2004 and from 31 January to 11 February 2005, respectively.

~Pll'iIDiSSibn

_rrm~m~~jSmG'~~~

emdJ_ _5ti1t'B!B·

I. ORGANIZATION OF THE SESSIONS

A. Election of officers
2,

On a motion from Germany seconded by Argentina, the Working Group at its

third session re-elected Mr. Bernard Kessedjian (France) as its Chairperson-Rapporteur.

B. Attendance
3,

Representatives oftbe following States members of the Commission on Human Rights

attended the Working Group's meetings: Argentina, Australia, Brazil, Canada, China, Congo,
Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Finland, France, Germany, Guatemala,

GE.05-10589 (E)

030204

030205

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER '.
. .
. '. '.: vi
DATE/CASE ID: 22 JlJN 2009 200706444

.... .
.
UNC:t'Xs
SIFIED

FP0665

UNCLASSIFIED

SECRET

E/CNA/2005/WG.22/CRP.l
page 2
Hungary, India, Indonesia. Ireland, Italy, Japan, Malaysia, Mexico, Nigeria, Pakistan, Paraguay,
Peru, Qatar, Romania, Russiap Federation, South. Africa, United Kingdom of Great Britain and
Northern Ireland, United States of America.
4.

The following States non~members of the Commission on Human Rights were

represented by observers at the Working Group's meetings: Algeria, Angola, Austria,
Azerbaijan, Bangladesh, Belgium, Bolivia, Chile, Colombia, Croatia, Cyprus, Czech Republic,

Derunark, Ghana, Greece, Harti, Iran (Islamic Republic of), Israel, Libyan Arab Jamahiriya,
Lithuania, Luxembourg, Mad;:tgascar, Malta, Morocco, Netherlands, New Zealand, Norway,
Philippines, Poland, Portugal, Rwanda, Spain; S~rbia and Montenegro, Slovenia, Sweden.

Switzerland, Syrian Arab Republic, Tunisia, Turkey, Uruguay.
5,

The Hl)ly See was also rep.resented by a~ observer.

6.

The following non-goveiri.mental orgariizatiorl~ in ,cori~ui~tiV~ statu~ with. the Economic

and Social'~unpil

were,re~re!leri~~d bY'ob,~erVers ~~,the'W~t~~~'qrouP'~' ine~tiiigs: AmnestY

International, Associaiiop"~or the Preveiiti6n 'of1'oi'tilie, HU~~~ RightS Watch;lnternational

Associ~tion~gainst'to,riure, Iotefuati~nalCOminissio~·.6f.Jtitists,lli'terb~t~orial~ederatj~n"of'
Human Rights League~, Intematioiia)'Le~guefor' th~'Rignts"and'L~D~raiiori 6fPeQPl~s,
Inte~ati6nal Service for Huriian :Right~,-Latin ~eric~n Fed~r~tiC;n;MAs~bbiaiioiis o'fRelatives

of Disappeared Detainees, World Federation of Trade Unions'.
7.

'

The' International Co~ttee of the Red Cross (JeRe), the European COinmission and

the League of Arab States were represented by obrerv~{S.
8,

The following experts also paI1icipated in the sessions: Ml'!rifred Nowak, in pUisuahce of

. his mandate under r~s~~ution 2001146; Louis lomet, 'in. his :capacity ~ indepent;i~rit ~xpert and
Chaiinian Ofthe"Working Group on the AdmiOistratioo' of-Justice' ofthe

'

SUb.Co~ssio~oil the

piombti~n lind Protection of Human Rights whi~h drewup the ~aft internatio~al:con~eritio~'on

. the protect~oh of all persons fro.m enforced disappearance in

1998; an~ 'Dar~o G6ttlicber'

"

(third session) and Santiago Corcueta Cabezuf(fourth 'session), 'me~bers dfthe Working' Group
on Enforced or ~nvoluntary Disappearances.

....

t,

.

.

' •

,;

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SECRET
E/CN.4/2005/WG.22/CRP.l
page 3

t.
9.

Documentation

The Working Group had before it the following documents:

E/CNAI200SIWG.22/1

Provisional agenda

NRES/47/133

Declaration on the Protection of All Persons from Enforced
Disappearance

ElCN.4/Sub.2/RES/1998/25

Draft international convention on the protection of all
persons from enforced disappearance

E1CNA/Sub.211998119

Report of the Sub-Commission's sessional Working Group

on the AdminJstratio~ of Justice Sous-Commission

E/eN.412002n I

Report subniihc(rb~

Mr, M~fred Nowak, independent

expert ch'arged w~th examinin~ ~e e~isting international

.criIDinal·anQ hJ.l~n Jjghts fr~eWork f9tthe p~Dtection of

.perSons froin enforced"or involun.ta~

disappearan~es,

in

pursuance ofparagra~h 11 ofCominjs~ion resoh.!tion 2001/4

EJCNAI2004/59

Report o{the ititersessiop,al 6~en-ended worki~g group to

elabOrate a draft l~gally binc!irig:notrnative instrUment for the

protectiofl of all:~er$6ns:.fr?~.erif~rced:,d'isappearimce
E/CN.4i2004IWG.2?Jwp.2

. Worki~g pap~

D. ORGANIZATioN 'OF WORK,
10.

,At the outset of the ·third session the ChairPerson~RapporteurSlibmittea a working pa~r

. containing a draft instrument which he ha~prepare(h~nd:l'nad~avail~bjt.: tQ'deiegations 'before

the ses~i~n (EJCN.4/2004tWG,2vWP.2). This was' a revised'~ersion '6ft4e' workiii~ paper

. coqsideied at the second s~sion (E/CN.4/2004IWG.22IWP.IIRev.1), ~km'g 'acco~nt o'f
. comments made by delegations at that session and

in infonnal ~onsultiltions. He suggested

taking the new working paper as a working basis and conducting the discUssions o~..it, The
. Working Oroup accented that suggestion. _ _

~.

" .

,'~'

._-----.-------FP0667

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RELEASED IN ~fft'tET

"The united States is pleased to join consensus as we did durin9 the 2002 UNGA
session, on this resolution addressing the crit~cal subject of mlssing persons
during armed conflict. We deliver this EOP to clarify legal points of
imp-ortance. First f with regard to op3. it is our interpretation that the
reference to the r19ht to know the fate of missing relatives is based upon
Article 32 of Additl0nal Protocol I to the Geneva conventions of 1949. and that
right is binding only on States parties to Additi·onal Protocol I. second. we
interpret oP4 to mean that States shoul~ take reasonable and appropriate
measures to search for missing persons. Third. with respec~ to pp4 and pp6
reference to human rights law during armed conflict by.necessity refers oni y to
those provisions, if any. that may be a~plicable. AS may be well known, it is
the position of the United States Government that the law of war is the lex
sp'eci ali s govern; ng armed confli ct. Thank you Mr. chai rperson.
II

--The united States underscore.s th~~,the in~er~~~~o~al communi~y.sh~uJd use all
and appropria·te int~r-'!~t:l0na1. reg:i.9')aJ. ·and ~d~ffl~~tiC' ~,~~1,cial
mechamsnis to attack the ~roblem of cnmes agalnst humi;lnny, .1.n~1'udlng
widespread or systematic forced disappearances. and to hold accountable those
responsible for such crimes.
--Additionally with r.espect to OP22, the united States "believes·that treaty
negotiations 'on ,human dglits instrum'ents should be carefl:'J an~. ~elib~rate, and
aimed to achieve the objective of a well-drafted, well-vetted lnstrument that
reflects a genuine consensus.
avai1a~le

vv

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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"

RELEASED IN FULL

~ Lee, Michelle G

,

..

......:,.

From:
Sent:

To:,
Cc: \ .
SUbject:
Attachments:

Noyes, Julieta V (DRl)
Tuesday, May 02,20061:07 AM
Harris, Robert K; Kovar, Jeffrey 0; Schou, Nina E; Sentes, Julianna W
DRL Staff Assistants; Davidson, lynne A (DRL)
Barry's Opening Statement - Final
Lowenkron Statement Mon pm version 5·1·06.doc; Lowenkron Statement Mon pm version
5-1-06 (clean).doc

Here is the shorter. final version, after the changes from Bob, Je:ff. C>OJ and Barry himself. Tracked and clean
versions attached. The latter con be distributed on Friday to interested parties as a PD document, as agreed at

our meeting this morning.
(Lynn & Lynda .- r will forward separately the version in the right font and in cadence.)

Julieta Valls Noyes
Director, Multilateral Affairs
Bureau ofDemocracy, Human Rights and Labor
U. S. Department ofState
tel.: (202) 647-4380
fax: (202) 647-4344
email: Noyesjv@state.gov

UNITED STATES DEPARTMENT OF STATE
REVIEW AlITHORITY: ARCIDE M BOLSTER
DATE/CASE In: 22 JUN 2009 200706444

1

UNCLASSIFIED
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4:

&3

.~

2

U.-S:,DELEGATION ORAl:rIiESPONSES;TO,t':!A.T
GOMMIITEE.QUESTIONS

addressed issues concerning the separation of powers under the United
States Constitution. This opinion was requested to provide operational
guidance with respect to the implementation of the criminal statute at the
level ofdetail needed to guide U.S. government officials

J!mb!:-lliG~!!-l
I will now provide summaries ofour answers to the many questions posed
by the Committee. In all cases,l would encourage you to consult those
written responses as they provide more detail than [ and my colleagues will
be able to provide today.

OLe later withdrew that opinion and issued another opinion dated
December 30, 2004, which is confined to an interpretation of the
extraterritorial criminal torture statute. The De<:ember 2004 opinion
supersedes the August 2002 opinion in its entirety and thus provides the
Executive Branch's authoritative interpretation of the extraterritorial

Questions I and 2 concern the memorandwns drafted by the
criminal torture statute.
Department ofJustice's Office ofLegal Counsel in August 2002 and
December 2004lhat provided legal advice on lhe meaning ofthe term
"torture" under the extraterritorial criminal torture statute that implements
ponions ofthe CAT. Nothing in these memos changes the definition of
torture governing U.S. obligations under the CAT from what the United
States accepted upon ratification ofthe Convention.
The Department ofJustice's Office of Legal Counsel, which provides
opiniops on questions of law to the Executive Branch ofthe United States
9ovemment. produced the August 2002 and December 2004 memoranda.

The August 2002 opinion was withdrawn not because it purponed to
change the definition of torture but rather because it addressed questions that
were not necessary to address. In this regard, the December 2004
Memorandum clarified lhat "[b}ecause the discussion in that [August 2002]
memorandum concerning the President's Commander-in-Chiefpower and
the potential defenses to liability was-and remains-unnecessary, it has
been eliminated from the analysis that follows. Consideration of the bounds
of any such authority would be inconsistent with the President's unequivocal
directive that United States personnel not engage in torture."

The August 2002 memorandum provided legal advice on the meaning ofthe
term "torture" under the extratetritorial criminal torture statute and

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

l:1NCLASSIFIED

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4

3

The purpose of both opinions was to provide legal advice related to a
domestic criminal statute. Neither opinion purported to change the
definition of torture set out in Article 1 as understood by the United States.

being subjected to torture. In contrast, the obligations regarding cruel,
inhuman or degrading treatment or punishment are far more limited.
The December 2004 memorandum, recognizing what is clear from the

The ques~ion/that the OLe addressed was simply what the tenns ofthat

text and'structure of the CAT, distinguishes ''torture'' from "other acts of

definition, as now reflected in the United States Code, mean.

cruel, inhuman or degrading treatment or punishment" as expressed in

Question 3 asks whether the references to "torture" as involving

Article 16, by explaining that torture is a more severe, or extreme, form of

extreme acts in the December 2004 memorandum are compatible with the

mistreatment than that described by Article 16. The use of the word

CAT. The fact that the CAT iIi Article 1 defines torture and then

"extreme" in these contexts clarifies the meaning ofthe word "severe"

subsequently refers in Article 16 to "other acts ofcruel, inhuman or

contained in the definition oftorture set forth in Article 1 .

degrading treatment or punishment" reflects the recognition ofthe

The tact that the term ''torture'' is reserved for those acts involving

negotiators that torture applied to more severe acts ofcruelty and abuse than

more severe pain and suffering, as distinguished from cruel, inhuman or

did cruel, inhuman or degrading treatment or punishmenL This basic

degrading treatment or punishment, is also confumed by the Convention's

distinction between the severity ofthe conduct constituting torture and cruel,

negotillting hlstoI)' and is consistent with other intematioilallaw sources,

inhuman and degrading treatment or punishment is reflected in the

cited in our written submission

underlying regime set forth in the treaty text to combat and prevent each
form ofconduct Specifically because of the aggravated nature oftorture,
States Parties agreed to comprehensive measures to prohibit it under their
criminal law, to prosecute perpetrators found in territory under their
jurisdiction, and not to return individuals to other States where there are
substantial grounds for believing that such persons would be in danger of

Question 4 suggests that both OLC memoranda are more restrictive
than previous U.N. standards, including tlie 1975 Declaration. We

respectfully disagree. The interpretation ofthe term "severe" contained in
the December 2004 memorandum reflects the understanding that torture
constitutes a more aggravated form of abuse than that covered by the "cruel,
inhuman or degrading treatment or punishment" described in Article 16. As

----UNCLASSTFTPn

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5

6

I have just explained, this distinction is not only express in the text ofthe

which meet the requirements ofthe CAT, are binding on governmental

Convention, but also is apparent from the negotiating history, the U.S.

officials and are enforced through a variety ofadministrative procedures,

ratification record, and other inteinationallaw sources. This is also

criminal prosecutions, and civil suits. Our written response to this question

consistent with, and is not more restrictive than, the 1975 Declaration, which

provides a comprehensive list of such mechanisms.

distinguishes torture from other lesser forms of abuse in part on the basis of

There are various mechanisms tba1 allow the United States to ensure

the severity of the underlying acts.
its CAT obligations. Of these, the Civil Rights of Institutionalized Persons
Regarding Question 5 and how the United States ensures
implementation. of its CAT obligations, I would note thlll., before ratifying
the CAT, the United States carefully reviewed U.S. federal and state laws for

Act of 1980 (UCRlPA"), is particularly relevant to the Committee's question
about monitoring of prisons as it enables the Department of Justice to
eliminate a pattern or practice ofabuse in any state prison, jailor detention

compliance with the tenns of the CAT. The United States concluded that,
facility, is perhaps the most direct source ofthe federal government's
with the sole exception of prohibiting certain acts of torture conunitted
authority to enforce the federal constitutional rights ofpersons in jails and
outside the territory of the United States. U.S. state and federal law covered
prisons, including juvenile justice facilities, at the state and local level. Our
all of the offenses stated in the Convention. The United States filled this lone

written response provides more detailed information on the activities ofche

shortcoming by enactment of the criminal extraterritorial torture statute.
Department ofJustice Wlder this statute.
In other words, the United States ensures compliance with its CAT

Question 6 is exceptionally broad. It asks for a vast amount of

obligations through operation and enforcement ofits existing laws. As a

information, including statistics relating to detained persons both within and

result, there is no specific federal crime Styled as "torture" for acts occurring

outside United States territory. Due to the sheer amount of information at

within U.S. territory. The reason for this is s!mply that any act oftorture

issue and time constraints, I would direct you to our written answer, which

falling within the CAT defmition, as ratified by the United States, is already

includes detailed statistical data.

,

criminally prosecutable under U.S. federal and state laws. These laws,

UNGLASSIFIED --

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7

Question 7 concerns alleged "secret detention facilities" under the "de
facto effective control" oCthe United Suues.. As a preliminary matter I

8

1will now tum to Charles Stimson, Deputy Assistant Secretary for
Detainee Affil.irs at the Department ofDefense to address Question 8.

would like to reiterate that it is the policy ofthe United States not to
comment on allegations of intelligence activities. That said, the U.S.

IS1i:MSONl

Government is clear in the legal standard to which all of its entities must

Ouestion 8 roncems and the Committee's interest in measures to

adhere. All components of the United States Government are obligated to act

remedy command and operational problems at detention facilities in light of

in compliance with the law, including all United States constitutional,

what the Committee describes as "numerous allegations oftorture and ill-

statutory, and treaty obligations relating to torture and cruel, inhuman or

treatment ofpersons in detention under the jurisdiction ofthe State party and

degrading treatment or punisJunent. The U.S. Government does not permit,

the case of the Abu Gbraib prison." The United States would like fIrst of all

tolerate, or condone unlawful practices by its personnel or employees

to address an underlying assumption ofthe Committee's question. While

(including contractors) under any circumstllnces. The extraterritorial

the United States is aware ofallegations oftorture and ill-treatment and

criminal torture statute ~s it a crime for a person acting under the color

takes them very seriously, it disagrees strongly with the suggestion that such

of law to commit, attempt to commit, or conspire to commit torture outside

practices are widespread or systematic. As Legal Adviser Bellinger stated in

the United States. In addition, pursuant to the Detainee Treatment Act of

his opening remarks, these allegations must be placed in context: they relate

2005, which I mentioned in my opening remarks, the United States

to an extremely small percentage ofthe overall number of persons in

voluntarily has undertaken a prohibition {}Jl cruel, inhuman, and degrading

detention. Moreover, it is obvious that not all allegations reflect actual

treatment or punishment that applies as a matterofstatute to protect any

abuse. For example, it is well-known that the Al Qaeda Manchester training

persons "in the custody or under the physical control ofthe United States

manual instructs all AI Qaeda members to allege torture when captured,

Government, regardless ofnationality or physical location."

even ifthey are not subjected to abuse. Of rourse, where allegations are
well·founded, the United States deplores the abuse and takes action to

UNCL,ASS TElEn

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10

9

investigate and to hold wrongdoers accountable. The United States provided

based on its recommendations. We value the relationship between the U.S.

numerous examples of specific measures taken in response to abuses at

Government and the ICRC and will continue to discuss detention issues with

Department of Defense ("DOD") detention facilities at Guantanamo Bay,

the ICRC.

Cuba and in Afghanistan and Iraq in our wrinen response to the

I will now return the floor to 10hn Bellinger.

Committee's questions and in the Annex to the Second Periodic &porl.

IBE£LINGERl

With respect to access and information provided to the International

Question 9 asks about derogations. I would like to state

Committee of the Red Cross (JCRC), the JCRC has access to detainee at

unequivocally that under U.S. law, there is no derogation from the express

DoD internment facilities worldwide, including at Guantanamo and in Iraq

prohibition on torture. The legal and administrative measures undertaken by

and Afghanistan, and may meet privately with detainees under DoD control.

the United States to implement this prohibition are described in detail in

DoD accounts for detainees under its control fuliy and provides notice of

both our Initial Report and Second Periodic Report.

detention to the JCRC as soon as practicable, normally within 14 days from
capture.

]n response to Questions 10 and 11, which ask whether there are
exceptions to the prohibition on torture, 1would like to reiterate that the

The JCRC trnnsmits its confidential conununieations to senior

United States stands by its obligations under Article 2, that "[a)n order from

officials in 000, including military commanders in Afghanistan, Iraq, and

a superior officer or a public authority may not be invoked as a justification

Guantanarno, and to other senior officials of the United States government

. oftotture" and that "(n}o exceptional circumstances whatsoever, whether a

000 has established procedures to ensure that JCRC communications are

state ofwar or a threat of war,

properly routed to senior leadership and acted upon in a timely manner.

public emergency, may be invoked as a justification oftorture." These are

DoD works with the JCRC to identifY and correct concerns that come to

longstanding commitments ofthe. United States, repeatedly reaffinned at the

light. While our dialogue with the JCRC is confidential, we take seriously

highest levels ofthe U.S. Government.

the mal1Cl'S the JCRC raises and have made changes and improvements

UNCLASSIFIED

intern~

political instability or any other

FP0675

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11

12

With regard to the Committee's concern about investigations, as

listed in the United States Army Field Manual on Intelligence Interrogation."
These standards apply to military, DoD civilians, and contract interrogators.

described in great detail in the Annex to the Second PerU:idic ilIIport, the

The question also asks about any interrogation rules, instructions, and

Department of Defense has conducted 12 major investigations into all
aspects of its detention operations following the events of Abu Ghraib.

methods that may have been adopted by the CIA. As already.noted, the

As these major investigations refl~t, the U.S. government is

United States does not comment publicly on alleged intelligence activities.

committed to investigating and bolding accountable those who engage in

But, like any other U.S. government agency, any activities ofthe CIA would

acts oftorture or other unlawful treatment ofdetainees. Ifit appears that

be subject ro the exttatetritorial criminal tonure statute and the Detainee

criminal laws have been violated, then those violations are investigated and

Treatment Act's prohibition on cruel, inhwnan, or degrarling treatment or

prosecuted as appropriate by the relevant authorities.

punishment.

Let me now tum to the Committee's questions about interrogation

The United States provided a detailed answer to the Committee's

rules in Question 12. The Detainee Treatinent Act of2005, as I mentioned,

questions in Ouesti2n 13 about the process under which Article 3 is

prohibits cruel, inhwnan, and degrading treatment or punishment. as that

implemented in its written answers to the Committee. Rather than

term is defmed by U.S. obligations under Article 16, and applies as a matter

oversimplifYing the various intricacies of procedure that may apply, I refer

of statute to protect any persons "in the custody or under the physical control

you to that discussion as well as the relevant discussion contained in the

of the United States Government, regardless ofnationality or physical

Second Periodic ilIIporl. To summarize briefly, however, let me make

location." The Act also provides for uniform interrogation standards that

several points. Regulations in the immigration removal and extradition

"[n]o person in the custody

or under the effective conlTol ofthe Department

contexts permit aliens to assert Article 3 claims as a defense to either

of Defense or under detention in a Department ofDefense facility shall be

removal or extradition. Consistent with its obligations under Article 3, the

subject to any treatment or technique of interrogation not authorized by and

United States does not transfer persons to countries where it determines that
it is "more likely than not" that they would be tortured. Additionally, the

.-

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13

United States' implementing laws and regulations do not exclude categories

the time the United States became a State Party to the CAT, it oonsidered

of persons from protection from refoulement under Article 3. The United

that the standard enunciated in its understanding was merely a clarification

States may not revoke or terminate an individual's protection under Article 3

ofthe defmitional scope of Article 3, rather than a statement that would

from involuntary removal to a particular country so long as it continues to be

exclude or modify the legal effect ofArticle 3 as it applied to the United

shown that the protected individual would "more likely than nof' be tortured

States. This view has not changed. With respect to the question ofwho is

in that country.

the competent authority to make Article 3 determinations, this turns on the

Our policy is clear. The United States does not ttansfer persons to

context in which the determination is made. For example, as I mentioned in

countries where it believes it is more likely than not that they will be

the previous question, the decision maker will differ in immigration removal

tortured. This policy applies to all components ofthe U.S. Government and

and extradition proceedings. To provide a thorough answer to this complex

to individuals in U.S. custody or control, regardless of where they may be

question, I would refer you to our more detailed description ofthe

detained. Nevenheless, on this point, I would like to refer you to our

procedures governing these various oontexts that is contained in our written

detailed analysis in our written response to this question. It explains that as

SUbmissions.

a legal matter, the view of the United States is that Article 3 does not impose

On Question 15, let me briefly describe the appeal rights of

obligations on the United States with respect to an individual WhD is outside

individuals assening Article 3 claims in the immigration removal context.

the territory of the United States. Neither the text ofthe Convention, its

Generally speaking, in immigration removal proceedings (with the narrow

negotiating history, nor the U.S. record of ratification SUppDrts a view that

exception of certain expedited proceedings described in our written

Article 3 applies to persons outside of U.S. territory.

response), an individual seeking protection from removal from the United

In Question 14 the Comminee asks whether the United States'

States under Article 3 may appeal an adverse decision ofthe immigration

understanding to Article 3 inrerpreting "substantial grounds for believing" is

judge to the Board ofImmigration Appeals (BlA). If the BIA dismisses the

in fact a reservation that restricts or changl;s the scope of the provision. At

individual's administrative appeal or denies his or her motion to reopen, the

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15

individual may tile It petition for review ofthe BIA's decision with the

synonymous with acts oftorture. As we have noted previously, conduct that

appropriate federal coW1 of appeals. I refer you to our written submissions

constitutes torture is prohibited under U.S. law. In addition, U.S. federal

for a more delaiJ.ed description of these appeals procedures.

and state law otherwise prohibit acts thai would constitute an enforced or

With respect to Question 16. as an initial matter, I would like to

involuntary disap~, for example, by prohibiting assault, abduction,

reiterate thai the United States does not comment on information OT reports

kidnapping, false imprisonment and by regulating the release or detention of

relating to alleged intelligence operations. That being said, Secretary Rice

defendants.

recently explained that United States and other countries have long used

Additionally, the United States notes that a1tbough the non-

renditions to transport terrorist suspects from the country where they were

refoulement protection ofArticle 3 does not explicitly prnhibit the return of

captured to their home country or to other countries where they can be

individuals to countries where they may face an enforced disappearance,

questioned, held, or brought to justice. Rendition is a vital tool in combating

during both immigration removal and extradition proceedings, an fudividual

international terrorism, which takes terrorists out of<lCtion and saves lives. I

may raise any fears that he or she may have regarding forced disappearance

would like to emphasize that the United States does not transport, and has

upon return. The United States government further notes thar the United

not transported, detainees from one countly to another for the purpose of

States also rigorously implements its obligations under the Protocol Relating

interrogation using torture. The United Stlltes has not transported anyone,

to the Status of Refugces, including the non-refoulement provisions

and will not transport anyone, to a country ifthe United States believes he or

contained therein.

she will be tortured. Where appropriate, the United States seeks assurances

it considers to be credible that transferred persons will not be tortured.

Regarding the Committee's questions about diplomatic assurances in
Question 18, 1would like to emphasize, as the United Stales did in
paragraph 33 ofthe Second Periodic Report, that diplomatic assurances are

Concerning Question 17, I would like to note that while enforced or
involuntary disappearances are unacceptable practices, they are not

used sparingly. As an example, 1would refer you to the over 2500 cases
wh.ere Article 3 protection was granted to individuals in removal

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III

proceedings between 2000 and 2004. procedures are in place that pennit the

constitutional system, the Executive branch is best equipped to evaluate and

United States, as appropriate, to seek assurances in order to be satisfied that

deal with such issues_ The rule of non-inquiry is regularly cited and relied

it is not "more likely than not" that the individual in question will be tortured

upon in U.S. jUdicial opinions involving extradition.

upon return. These procedures are described at length in our written

In Question 19. the Committee refers to cases in which the United

submissions. Diplomatic assurances are not a substitute for 8 casc:-by-case

States has allegedly returned individuals to countries that the United States

detennination ofwhether that standard is met.

considers "not to respect human rights." In response, I would like to
emphasize that Aniele ~ does not prohibit the return or ttanSfer of

If, taking into account all relevant infonnation, including any
assurances received, the United States believes that it is "more likely than

individuals to countries with a poor human rights record perse, nor does it

not" that a person would be tortured ifreturnellto a foreign country, the

apply with respect to returns that might involve "ill treatment" that does not

United States would not app~ve the return of the person 10 that country.

amount to torture. Rather, the United States implements its obligations

There have been cases where the United States has considered the use of

under Anicle'3 through making an individualized determination as to

diplomatic assurances, but declined to return individuals because the United

whether a particular individual "more Iikely'rhan not" will face torture in a

States was not satisfied such an assurance would satisfy its obligations under

particular country.

Article 3.
In response to the Committee's question about the "rule of noninquiry." this is ajudicial doctrine under which courts oCthe United States
refrain from examining the penal systems of nations requesting extradition

To the extent that the Co~ittee's question is directed to returns or
transfers of individuals that are effected outside of U.S. territory, the U.S.
reiterates its view that Article 3. by its terms, does not apply to individuals
outside ofU.S. territory. That said, as we have noted previously, whether or'
not Article 3 applies outside ofU.S. territory, the United States does not

of fugitives when considering whether to pennit extradition. lnstead, such

transfer persons to countries where it believes it is "more Iikely than not"

issues are considered by the Secretary of State in making the final

that they will be tortured.

extrndition decision. The rule of non-inquiry recognizes that, in the U.S.

-·---UNCLASSIFI-ED·- - ",._...

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20

19

Finally. a note on what the Committee and others have called

assault or battery or mayhem in cases of physical injury; homicide, murder

"extraordinary renditions." Ifiliat term is meant to refer to moving persons

or manslaughter, when a killing results; kidnapping, false imprisonment or

across borders outside normal extradition procedures, the United States has

abduction where an unlawful detention is concerned; rape, sodomy, or

acknowledged, as I just stated, that it, like other countries, has long used

molestation ifthose acts occur; an attempt or a conspiracy to commit any of

procedures in addition to extraditions or otherjudicial mechanisms to

the above acts; or a criminal violation of an individual's civil rights. Thus,

transport terrorist suspects from the country where they were captured to

there is no "lacuna" in U.S. law, as all acts that would constitute torture

their home country or to other countries where.they can be questioned, held,

under the CAT are crimes in the United States.

or brought to justice. I~ however, the term is meant to refer to a practice of

Additionally, in our written response to Question 5, we described a

rendering a person to a place where he or she will be tortured, I cannot be

range of mechanisms by which U.S. compliance with its CAT obligations is

more emphatic: we do not engage in that practice. This applies to all

implemented. The availability of these mechanisms ensure that individuals

components ofthe United States government and with respect to individuals

are protected from torture and other serious forms ofabuse, and that when

in U.S. custody regardless of whether they are inside or outside ofU.S.

violations arise, prosecution at the federal and state level and appropriate

temtory.

remedies are available.

In Question 20, the Committee asks whether torture constitutes a

To give one example that I think highlights just how broad the

specific federal offense ifit is committed witflin the United States. As I

available tools for criminal prosecution under our system are: many acts

explained previously, while there is no specific federal crime styled as

which would qualify as "torture" could, provided the offender was acting

"torture" for acts occurring within U.S. territory, any act oftorture falling

under color of law, be prosecuted under 18 U.S.C. § 242 as criminal

within the Convention's defmition, as ratified by the United States, is

deprivations ofConstitutional rights. As the examples in paragraphs 20 and

criminally prosecutable. There is a long list ofcriminal violations that could

21 ofthe Second Periodic Report make clear, 18 U.S.C. § 242 also reaches,

be charged depending on the facts ofthe case: for example, aggravated

and the Department ofJustice prosecutes as criminal deprivations of

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21
Constitutional righi's, many violations that would constitute torture but also
many"that do not rise to that level.

22

I will now tum to Cully Stimson to respond to Questions 23 through.
27 as they concern detention operations by the Department of Defense,

including relating to training ofmilital)' personnel and applicable
The same is true of the militaly justice system, which is the focus of

interrogation rules.

Question 21. As described in the Annex to the Second Periodic Report, it is

[STIMSON]

a violation of our Unifonn Code of MilitaJ)' lustice or "UCM1," which

Regarding Ouestion 23 and 24, which concern education and training

applies world-wide, to engage in cruelty and ma!treannenl Further, under

of military and DoD civilian personnel, including contractor employees, I

the UCMJ, acts ofassault, maiming, rape and camaI knowledge.

would like to emphasize that there are extensive programs of training and

manslaughter, murder, and unlawful detention, among other violations. can

information, rules and instructions, and mechanisms of systematic review

be prosecuted.

that apply to personnel involved in the custody, interrogation or treatment of

Under the UCMJ, individuals may also be chaIged for violations of

detainees. Education programs and information for personnel, including

U.S. federal criminal statutes, including the extraterritorial criminal torture

contractors, involved in the custody, interrogation or treatment of individuals

statute and the other federal crimes (listed in response to Question 20.

in detention include training on the law ofwar, which is provided on at least

Concerning Question 22, there is no "penal immunity" for any person

an annual basis (and more frequently as appropriate) for the members of

for the crime oftorture under U.S. law. Additionally, although there have

every service and for every person, including contractors, who works with

been no criminal prosecutions initiated under the extraterritorial criminal

detainees. This extensive training on law of war includes instruction on the

tOrture statute to dale, there have been prosecutions for offenses occurring

prohibition against torture and the requirement ofhumane treatment and

outside the United States under other statutory provisions, including the

other subJects; including human rights, and is described in greater detail in

Uniform Code of Military Justice.

Annex 3 to our written response to the Committee's questions. Our written

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23

answer includes information on law ofwar training in the military

detailed information, but Jet me provide a briefoverview here. The

academies.

Department of Defense requires all contractors to comply fully with its rules,
regulations. and standards, regarding the humane treatment of detainees and

Rules and instructions regarding the custody, interrogation, and
treatment of detainees are described in the Annex to the Second Periodic

has explicitly required contractors to agree to adhere to these requirements.

Report and will also be addressed in response to Question 26. Mechanisms

On April}}, 200S, the Secretary ofDefense established a policy that all

for systematic review ofmilita1y, DoD civilians, and contractor employees

federal employees and civilian contractors engaged in the custody or

involved in detention operations include inspector general visits, command

interrogation ofindividuats detained by the Department of Defense shall

vjsi~

complete 8D1lual training on the law of war, including the obligations ofthe

and inspections, Congressional and intelligence oversight committees

and visits, as well as reviews conducted PW'SUant to unit procedures and by

United States under domestic and intemationallaw. In addition, al1

the chain ofcommand. They also include case-specific investigations and

persormel deploying to the lJaq and Afghanistan theaters receive Geneva

overall reviews, including the 12 major Department of Defense reviews of

Conventions training before they leave for their deployment. In addition,

detainee policy described in detail in the Annex to the Second Periodic

personnel receive periodic training with their units while deployed. This is

Report.

applicable to all the military services.

The U.S. written response to Question 25 concerning the recruitment,

Regarding Question 26, which asks about whether the December 2004

use and tIaining of contJactOrs involved in detention facilities includes

memorandum created UIUlecessary confusion for trainers and personnel, the

detailed infoImation regarding contractors involved in detention operations

answer is no. As the United States explained in the Annex to the Second

overseen by the Department oflustice's Bureau ofPrisons and Department

Periodic Report, the mainfmding ofthe investigation conducted by General

of Homeland Security. I would refer you to OUI written response for that

Kern, Lieutenant General Jones, and Major General Fay (commonly referred

information. As concerns the use ofcontractors in Department ofDefense

to as the Jones-Fay report) was that a small group of individuals. acting in

detainee operations, I would also refer you to our written response for more

contravention of U.S. law and DoD policy, were responsible for perpetrating

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25·

[:IJ~~Y~J;.~1

the acts of abuse at Abu Ghraib. Specifically, in an interview after the
report's release, General Kern told reporters, "We found that the pictures

.

you have seen, as revolting as they are, were not the result ofany doctrine,

Let me now introduce Mr. Thomas Monheim, an Associate Deputy

training or policy failures, but violations ofthe law and misconduct" This

Attorney General at the Department ofJustice, to respond to Questions 28

finding has been supported in 12 other major reviews conducted by the

and 29 concerning the programs of the Department of Justice's Civil Rights

Department of Defense.

Division.

The issues arising in Question 27 concern interrogation roles and has
largely been addressed by John Bellinger in his reply to question 12. As he

lMQNJ:OOMJ

stated, the Detainee Treatment Act of 2005 prohibits cruel, inhwnan, or
degrading treatment or punishment, as that term is defined by U.S.
obligations under Article 16 of the CAT, and provi~es for uniform
interrogation rules for persons in the custody ofDoD or under its effective
control or under detention in a DoD facility: the Anny Field Manual on
Intelligence Interrogations.

In the limited time we have for oral reply, it is difficult to succinctly
describe both the functions of the Civil Rights Division as well as to
adequately pay tribute to its many accomplishments. For that reason, please
refer to the more detailed infonnation contained both in our written response
to the Committee's questions as well as the U.S. initial Periodic Reporl and
the Second Periodic Report However, I will briefly explain the Division's

Other U.S. government agencies may also have their own
interrogation policies. As already noted, any activities ofsuch other
.I

agencies would be subject to the federal anti-torture statute and the
prohibition on cruel, inhuman, or degrading treatment or punishment in the
Detainee Treatment Act of2005.
I would now like to return the floor to John Bellinger.

role.
The Division was established in 1957 and is responsible for enforcing
federal statutes prohibiting discrimination on the basis of race, sex,

handicap, religion, and national origin, and numerous other federal civil
rights statutes and additional civil rights provisions contained in other laws
and regulations. These laws prohibit discrimination in education,

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21

Regarding Question 29, the Department of Justice has continued its

employment, credit, housing, public ~mmodations and facilities, voting,
and certain federally funded and conducted programs. The Division also

vigorous enforcement ofthe Civil Rights ofInstitutional Persons Act. Since

enforces the Chtil Rights of Institutional Persons Act of 1980, which I will

OCtober 1999, the Department of Justice has opened 65 investigations

refer to through its acronym "CRIPA," which Mr. Bellinger mentioned

covering 79 facilities. The Department ofJustice has al,so entered into 39

previously in response to Question 5 and which is also the subject ofthe

settlement agreements, including seven consent decrees. Over the past five

next question.

years the Department ofJustice has initiated 25 percent more new

"In addition, the Division prosecutes actions under several federal

investigations than in the preceding five-year period. In fiscal year 2005

criminal civil rights statutes, mentioned previously, including those

alone, the Department of Justice opened 11 CRlPA investigatio~s; sent nine

prohibiting conspimcy to interfere with Constitutional rights, deprivation of

findings letters; obtained nine agreements involving 12 facilities; entered

rights under color of law - both of which are key mechaniStDS to ensure

fOUT

U.S. compliance with its CAT obligations.

120 investigatory and compliance tours of facilities. In addition, the

Finally, the Civil Rights Division is .responsible for coordinating civil

consent decrees involving six. facilities; and conducted approximately

Department of Justice is monitoring compliance with court orders that cover

rights enforcement efforts of other federal agencies in ce~ areas. Since

persons who previously resided in institutions but who currently reside in

October 1999, the Division has achieved an impressive level of

community-based residential settings in the District ofColumbia, Hawaii,

accomplishments protecting and enforcing the civil rights ofall persons.

PeDJ1SYlvania, Indiana, Puerto Rico, Wisconsin;and Tennessee. As ofApril,

fi\ing 531 criminal civil rights cases against 971 defendants and obtaining

2006, there are currently 41 active investigations covering 44 facilities.

766 convictions to date. This includes 254 cases filed charging 436 law

Question 29 also asks about investigations that ended in prosecution

enforcement officers with official misconduct, which have resulted in 359

for torture or cruel, inhuman, degrading treatment or punishment. As noted

convictions to date. While I should note that not all ofthese cases involve

in the Seccnd Perj~ic Report, complaints about abuse, including physical

matters within the scope ofthe CAT, this is an impressive record.

injury by individual law enforcement officers, continue to be made and are

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29

30

investigated by the DepaI1ment ofJustice and, ifthe facts so warrant,

memorialized in negotiated settlement agreements, represent constitutional

prosecuted. The Department remains committed to investigating 1I11

solutions and recognized best national practices. Once the reforms are

incidents of willful use ofexcessive force hy law enforcement officers and

agreed upon with the facility, DOl will often work. cooperatively with the

to prosecuting federal law violations where action by state or local

jurisdiction to jointly select a monitor to ensure implementation. The

authorities fails to vindicate the federal interest. Since October I, 1999,432

monitor will then work with the jurisdiction to promptly identitY issues of

law enforcement officers have been convicted ofviolating federal civil

non-compliance and provide status assessments regarding compliance to

rights slaMes. Most of th~ officers were charged with using excessive

both the jurisdiction and DOl.

force.

ln addition, in this regard, I would also like to emphasize the
The Civil Rights Division also investigates conditions in state prisons

importance of the Civil Right's Division's impressive record of prosecuting

and local jail fadlities purSuant to CRlPA, and investigates conditions in

officers who engaged in unlawful use of force. Prosecution enhances

state and local juvenile detention facilities pursuant to either CRIPA or the

conditions of confmement by providing general and specific deterrence to

pattern or practice provision of the Violent Crime Control and Law

law enforcement officers, and ensuring persons in custody that laws

Enforcement Act of 1994. These statutes allow the Department to bring

prohibiting use of excessive force or other constitutional violations will be

legal actions for declaratory or equitable relieffor a pattern or practice of

vigorously enforced.

unconstitutional conditions ofconfinement.
Regarding the C0':"'ltlittee's question about what measures have been
taken to improve conditions ofdetention, when the investigations ofthe
Civil Rights Division uncover unconstitutional conditions at prisons, jails, or
juvenile detention facilities, it takes measures - including working with
local and slale authorities - to remedy these conditions. The remedies, often

(BEhtINGER]
Thank you, Tom. Turning to Question 30, which asks for detailed
. disaggregated statistical data regarding deaths in custody according to
detention, due to the very large amount ofdata requested by the Committee
and provided by the U.S. in response to this question, I would like to refer

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31

you to our written response to this question, including the disaggregated

Guantanamo. The vast majority ofthe deaths in Afghanistan and Iraq were

statistical infonnation we provided to the Committee in the annexes to those

caused by factors such as narural causes, injuries sustained on the battlefield,

answers. However, let me just emphasize that any death of an individual in

or detainee-on-detainee violence. In only 29 cases was abuse or other

United States Govenunent custody is reported, and ifthe facts suggest that

violations of law or policy suspected. In these cases, these alleged

there may be criminal implications resulting from such deaths, the incident

violations were properly investigated, and appropriate action was taken. Our

will be investigated. Ifthe facts so warrant, the responsible individuals will

written answers to the Committee's questions provide extensive information

be held accountable.

about the investigations and, where appropriate. prosecutions that have been

Mr. Chairman, up until now we have been responding to the questions

undertaken to date in specific cases of detainee deaths or alleged detainee

in numerical order. For the next few questions, in order to avoid having to

abuse. These investigations have numbered in the hundreds. I would invite

pass the floor back and forth among my colleagues excessively, I would like

the Committee to review tha1 very detailed information, which includes

to group some ofthe questions together. I will first ask Mr. Stilnson to

information about punishment

reSpOnd to Questions 31 Ihrough 34, Question 36 and Question 39. I will

I should note that the process ofholding violators accountable is

then ask Mr. Monheim to address Questions 35, 37, and 38. I will then

ongoing. For example, in the time between our submitting ofthe answers to

resume the presentation from Question 40.

the Committee's questions last Friday and today, the Army has charged a

(STiMsoN)

senior officer, the former head ofthe interrogation center at Abu Ghraib

Questions 31 and 32 concern the number of individuals who have died

prison, for his alleged involvement in the abuse ofdetainees and for
allegedly interfering with the abuse investigation.

in DOD control and cases involving assaults on detainees in Afghanistan,

Concerning the Committee's question about overall reviews of policy

Iraq and Guantanamo Bay.

in Ouestion 33, as mentioned before, the Department of Defense has

There have been a total o.f 120 deaths ofdetainees in Department of

conducted 12 major reviews of its detention operations. Let me make a few

Defense control in Afghanistan and Iraq. There have been no deaths at

..r

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34

33

Question 34 asks whether the Combatant Status Review Tribunals and

points about the allegations mentioned by the Committee that these
investigations have not been not fully independent. In all 12 ofthese

the Administrative Review Boards have any jurisdiction regarding

reviews, panels were allowed access to all materials and individuals they

complaints oftorture and cruel, inhuman or degrading treatment or

requested. They were provided any rcsOUICes for which they asked,

punishment. The Annex to the Second Periodic Report describes the scope,

including the assigrunent of more senior personnel when investigations

jurisdiction, and impaniaIity ofthese processes. Our answers to the

required it. In no way did DoD officials direct the conclusions drawn. As

Committee's questions provide an update on the judicial review applicable

the Secretary ofDefense, Donald H. Rumsfeld, has said on \\umeTQ\lS

10 me C'.SRTs under the Detainee Treattnent Act of2005. These are

occasions and in numerous venues with respect to the investigations, DoD

processes with specific purposes, namely to review the initial enemy

policy was "to Jet the chips fall where they may." The recommendations

combatant determination in the case of the CSRTs and to determine on an

generated by these investigations have been taken seriously, as described in

annual basis whether there.is a rontinued need 10 detain an enemy combatant

further detail in the Annex to the Second Periodic Report.

in the ARBs. Of course, ifcredible allegations oflorture or CIDT were

As the Department ofDefense has conducted an honest. open and
impartial set ofinvestigations since the events ofAbu Ghraib into all aspects
ofdetention operations, other investigations are not foreseen at 1his time, as

raised during such proceedings (or in any other context), they would be
investigated and acted upon based upon the information that is uncovered.
Question 36_asks about remedies, including rompensation, available

they would not add value to the 12 investigations already conducted.

to detainees who have alleged abuse while under V.S. contro!. 'The

Sh?uld infonnation come to light that would suggest additional investigation

Department ofDefense has administrative procedures in place under various

is warranted, the Departrnem of Defense will, as it has before, investigate

domestic statutes that enable it to pay compensation in such cases. 33

such allegations fully.

detainees have filed claims for compensation (this includes some Abu

The question also asks about access to detention facilities, a topic
already addressed by Mr. BeIHnger under Question 8.

GhTlIib detainees), and the claims process is ongoing. Our written answer
provides more detail on these procedures, as well as a table with a

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breakdown of the statistical data regarding allegations of torture or ill·

prosecute the perpetrators of such abuse. The Act includes rights to

treatment according to gender, age, location ofthe complaint and result of

protection from the accused, to notice of public court proceedings involving
. tbt t,.nme t>r of any re\ease or escape of \he accused, to presence at public

the investigation.
Ouestion 39 requests an update on Iwbeas corpus litigation in U.S.

court proceedings, to be heard at public proceedings, to confer with the

courts. Currently. there are approximately 195 habel1S corpus cases on

government in the case, to full and timely restitution as provided in law, and

bebalf ofmore tlulll 350 detainees presently pending before 15 district court

the right to be treated with fairness and with ~spect for the victim's dignity

judges. ProceediIlgs in almost all of these cases are stayed awaiting a

and privacy.

decision ofeither the U.S. Supreme Court in the case of Hamdan v.
[f a victim believes that he has been denied these tights hy an

Rwnsfeld or the U.S. Court ofAppeals On the appeals pending before it.
In a significant development. the Detainee Treatment Act of 2005

employee of the Department, he may file a complaint with the DOJ's

withdrew the jurisdiction of U.S. courts to consider habeas corpus petitions

Victims' Rights Ombudsman (VRO). As far as the DOl is aware, no alleged

or other claims by or on behalf ofGuantanamo detaitlees except under

victims oftotture by U.S. government personnel have asserted any of these

certain circwnstanees delineated within the stanlte.

rights, filed for writs ofmandamus, or filed complaints with the VRO.

As Mr. Bellinger requested. I will now pass the floor to Mr. Manheim

Regarding Ouestion 37;while the Prison Litigation Reform Act of

1995 ("PLRAi contains sevecal prQvisinns designed to curtail fl\'IIolous

to answers Questions 35, 37 and 38.

rMQ~.ffitJMJ

lawsuits by prison inmates, it does so in a manner consistent with Article 13

Question 3S asks for further information on the Justice for All Act.

of the CAT. By no means does it "increase the possibility of impunity for

This Act provides for a range of rights ofvictims of federal crimes described

perpetratocs," as the Committee's question suggests. Those who vio\ate the

in greater detail in our written response. The protections containc(nn the

rights of prisoners are subject to both civil and criminal liability for their

Act improve the ability of victims ofabuse to monitor and assist in efforts to

actions.

..
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31

The Act does not limit a prisoner's ability to "complain to and to have

Question 40 seeks an explanation of the exact legal statuS of "enemy

his case promptly and impanially examined by competent authorities

combatants" and asks whether the United States is considering reviewing its

regarding a1legll1ions of torture," which is the language used in Article 13 of

decision not to apply the Geneva Conventions to them. As an initial matter,

the CAT. The Act does not prevent a prisoner from bringing a federal civil

I note that the applicability of and compliance with the Geneva Conventions

action to redress allegations of torture. A prisoner alleging aclUa1 physical

is a matter unrelll1ed to the scope of U.S. obligations under the CAT.

inju!)' may seek compensato!)', nominal, and punitive damages, and

While the question seems to conflate the discussion relating to persons

injunctive and declaratory relief. In addition, courts ofappeals bave held

detained in Iraq, in Afghanistan, and at Guantanamo, it is important to be

that thls provision pennits prisoners alleging a non~physical constitutional

precise and recognize the different legal status of each of these categories of

injury to seek nominal and punitive damages, and injunctive and declaratory

detainees.

relief.

The United States has not made any "decision not to apply" the

Moreover, nothing in the Act prevents access to the wide range of

Geneva Convention where it would, by its terms, apply. For example, the

other administrative and other avenues by which prisoners may present

United States recognized thll1 the Geneva Conventions apply to the war in

complaints and grievances, including administrative remedies at the federal

Iraq and made it clear that our armed forces would treat captured Iraqi armed

and state level as well as judicial remedies before state courts.

forces in accordance with the Geneva Conventions.

Regarding Question 38, the United States is not aware of any

The United States is aware that questions are often taised about the

allegations of torture by U.S. government personnel t!uU have been brought

concept of"unlawful combatants," which certain academics and others have

to the attention ofthe Center for VietimsofTorture.

asserted is not a concept found in the Geneva Conventions. The United

I now return the floor to Mr. Bellinger.

States strongly disagrees: the concept of "unlawful combatants" is well-

£BElLINGER]

recognized in intemll1ional law by courts, in military manuals, and by
intemationallegal scholars, some ofwhom are cited in our wrinen response.

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39

With regard to Taliban detainees, the President detennined that the

inadmissibility ofcoerced statements. U.S. courts take these rules seriously,

Third Geneva Convention docs apply to the Taliban detainees, but that the

as evidenced by the numerous cases cited in our written response and prior

Taliban fail to meet the requirements of Article 4 of that Convention and so

reports. We <tinct the Committee to those rePorts for further details.

are not entitled to the status of prisoners of war. With regard to the a1-Qaeda

Ouestion 42 asks how Article 15 of the CAT is implemented in the

detainees, the President detennined that the Geneva Convenli~n did not

Combatant Status Review Tribunal and Administrative Review Boards

apply because a1-Qaeda is not a party to the Convention. Article 2 ofthe

proceedings. Article 1S ofthe Convention is a treaty Obligation of the

Convention makes it clear that the Convention only applies as between High

United States, and the United Stales is obligated to abide by that obliglltion

Contracting Parties. Because these decisions are grounded in the Geneva

in Combatant Status Review Tribunals and Administrative Review Boards.

Conventions themselves, the United States does not consider it necessary to

attention to an important recent development with regard to lhe

review them.
At the

On Article IS, the United States would like to draw the Committee's

same time, I should note that in making these detenninations,

implementation ofthat article in military commission proceedings. On

President Bush ordered that "the United States Armed Forces shall continue

March 24, 2006, an instroetion was adopted that provides that "the

to treat detainees hLUnanely... in a manner consistent with the principles of

commission shall not admit stAtements established to have been made as a

Geneva." Moreover, let me reiterate that the United States Govenunent

result of torture as evidence against an accused, except as evidence against a

complies with its Constitution, its laws, and its trelltY obligations with

person accused of torture as evidence the statement was made."

respect tt> all delainee, enemy combatants.
Ouestion 4 i requests examples ofcases where statements have been

Regarding the Committee's question about the U.S. reservation to

Article 16 in Question 43, let me beginfltSt by explaining why the United

found inadmissible in court on the grounds that they were obtained

States felt it necessary to take this reservation. Pursuant to the U.S.

coercively. As the United States explained in its Initial Report, and in its

reservation, the United Stales agreed under Article 16 to "undertake to

Second Periodic Report, u.s. law provides strict rules regarding the

p~event

in any territory under its juri~etion other acts ofcroel, inhuman or

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42

4\

in response to Question 44, and the Committee's question about the

degrading treatment or punishment which do not amount to torture," "insofar
as !he tenn 'cruel, inhuman or degrading ueatment orpunisbment' means

geographic scope ofArticle 16, as ratified by the United States, I would like

the cruel, unusual and inhumane treatment or punishment prohibited by the

to emphasize that by its terms, Article 16 of the CAT obliges States Parties

Fifth, Eighth, and/or Fourteenth Amendments to the Constitution." As we

"to prevent in any territory under its jurisdiction other acts of cruel, inhuman

have. explained, this reservation was adopted beCllUSe ofconcern over the

or degrading treatment or punishment which do not amount to torture...."

uncertain meaning of the phrase "cruel, inhuman or degrading treatment or

(Emphasis added.) Clearly this legal obligation does not apply to activities

punishment" and was intended to ensure that existing U.S. constitutional

undertaken outside of the "territory under [the] jurisdiction" ofthe United

standards would satist'y U.S. obligations under Article 16. Moreover, 1

States. The United States does not accept the concept. that "de facto control"

would like to emphasize that while the United States recognizes thal: other

eqUates to territory under its jurisdiction. There is nothing in the text or the

courtS in other countries, often dealing with different instruments than the

travaux of the Convention that indicates that the two are equivalent.

CAT, have held that certain types of conduct salist'y standards similar to that

Notwithstariding debates over the territorial scope ofArticle 16, it is

in Article 16, the relevant test for the United States is the obligation it

important to bear in mind that, as a matter ofU.S. law, the Detainee

assumed as set forth in the U.S. reservation.

Treatment Act of2005 now provides that "[n]o individual in the custody or

Because the meaning ofArticle 16's "cruel, inhuman or degrading
treatment or punishment" standard is uncertain. it is difficult to state with

under the phySical control ofthe U.S. government, regardless ofnll1ionality
/'

or physical location, shall be subject to cruel, inhuman, or degrading

certainty and precision what treatment or punishment (if any) would be

treatment or punishment" as that term is defined by U.S. obligations under

prohibited by Article 16 with no reservation, but permitted under Article 16

Article 16. Cruel, inhuman and degrading treatment or punishment is also

as reserved by the United States. It is this very uncertainty that prompted the

prohibited under the Uniform Code ofMilitary Justice, which governs U.S.

reservation in the first place.

military personnel wherever they may be located and prohibits abusive
conduct.

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Regarding the speciall'llllritime and territorial jurisdiction ofthe

44

One practical example of these standards at work can be seen in the

United States, 1would direct you to our more detailed expllllllltion contained

recently opened South Texas Detention Complex, a facility comprised of

in our written response to this question.

several secure "pods" that allow for separation of detainees based on gender

The territorial restriction in Article 16 ofthe CAT, which also appears

and degree of risk posed. Other examples are discussed in our written

in other provisions ofthe CAT, uses different tenns to describe its coverage

responses, which a1so address under Question 49 measures to prevent sexual

and serves a purpose entirely different trom the technical tenn "special

violence.

maritime and territorial jurisdiction," which Congress used to defl1lC the

jurisdiction ofcertain U.S. criminal stan1les. Article 16 is limited, by its
own teons, to "territory under [the State Party's] jurisdiction." Moreover,
"special maritime and territorial jurisdiction" includes concepts obviously

Question 46 is about the use ofTasers. Through the Departments of
Justice and Defense, the U.S. govemrnent is conducting extensive research
into the safety and effectiveness of eleetro~musculardisruption devices,
including Tascrs. In addition, the Department of Justice works with local

inapposite to Article 16's reach, such as offenses committed on certain
police agencies to assist them in their development of policies regarding the
spacecraft and in "places outside the jurisdiction ofany nation."
use ofthese devices. This policy guidance includes consideration of
I now turn to Mr. Monheim to address Questions 4S through 50.
community acceptance, use-of-force protocols, continuous monitoring ofall

1~~JM1
Oy,estion 45 asks for infonnation about the Department ofHomeland
Security's National Detention Standards, which serve as a frameworic for
selection of contract detention facilities. The American Bar Association has
applauded the standards as a "significant achievement" and "good first step
towards providing Wlifonn treatment and access to oounsel fur immigrants
and asylum seekers."

uses ofthese devices, medical response, and training.
The use ofTasers to control arrestees and inmates is consistent with
the law. Courts have reviewed the application of such devices for
cohsistency with the Eighth Amendment's "prohibition ofcruel and unusual
punishment," and have upheld their legality.
Furthermore, use ofTasers often obviates the need to use other forms
of more severt, or even deadly, force. Nevertheless, the Department of

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46

Justice remains committed to investigating and, where appropriate,

ofidentification, processing, and awaiting pickup by a parent or

prosecuting use of Taset:S where the cireum.stanees indicate a willful use of

guardian. Juvenile delinquents also may be detained in adult jails 6 hours

excessive force in violation ofConstitutional standards. In addition, the

before and 6 hours after a court ap~ce. In both instances, juveniles

Departments ofJustice and Defense continue to develop Iess-Ietha1 options,

must be "sight and sound" separaled from adult inmates.
Regarding the Committee's request for statistics, please see our

including novel electro-muscular devices that may provide improved safety
and effectiveness to law enforcement and military personnel.

written response to this question.
Additionally, with respect to juveniles in Department ofHomeland

Question 47 concerns the detention ofjuveniles with adults. As an

Security custody, as discussed in greater detail in our written response,

initial matter, it should be noted that that the detention ofjuveniles with

generally spealdng,juveniles ate not detained with adults in any DHS adult

adults would not per se constitute auel, inhwnan or degrading treattnent or

or juvenile detention facilities. Qne limited exception allows for the

punishment.

detention ofa juvenile with an unrelated adult for a temporary period oftime
(not to exceed 24 hOUlS) only to the extent necesslU)' {or processing or for

That being said, Federal law prohibits juvenile offenders held in

transport from a remote area

custody of federal authorities from being housed in correctional institutions
or detention facilities in which they could have regular contact with adult

Question 48 concerns a l1UIge of restraints used on detainees as well lIS

offenders. When ajuvenile must be temporarily detained in an adult facility,

supermaximum prisons. First, let me emphasize that it is not the general

as, for example. immediately following arrest, it is for 3. minimal period of

policy or practice ofthe United States government to shackle female

time and "sight and sound" sepanuion from the adult offenders is ensured

prisoners during childbirth. Although the use of reslraints is not prohibited,

within the institution. Similarly, under the Juvenile Justice and Delinquency

the Bureau ofPrisons does not generally restrain inmates in any manner

Act, accused juvenile delinquents in custody of state authorities may be

during labor and delivery because they are not considered a flight risk. An

detained in adultjails for only 6 hours after arrest and only for the purposes

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inmate would be restrained only in the unlikely case that she posed a threat

and worked with the Stale ofMaryland to address the identified deficiencies.

to herself,'her baby, or others around her.

The Department intends to continue to fully investigate all credible

Allegations ofthe misuse ofshackles or ather restmints in both
federal and state prisons are investigated by the Departnlent ofJustice.
However, it should be noted that since the use ofshackles on prisoners is not
per se unconstitutional, there are circumstances in whiclt the use ofshackles
is permissible.
The Department of Justice has been vigilant in its monitoring of
unconstitutional practices by prisons, including use ofchain gangs and the
hitching post While the use of chain gangs is not pel' se unconstitutional,
the Department's investigations examine whether the practice is conducted
in conformity with the Constitution (such as, providing inmates on chain
gangs with adequate water, access to toilets, medical cate, etc.). If the

practice were conducted in vio1ation of constinmona1 principles, the
Department would seek immediate prohibition ofsuch practices.
Re&al'ding the Committee's question about supeftIlllXimum prisons,
tbe Department ofJustice has reviewed a1legatiQns involving several super
maximum facilities in the last several years, applying the same constitutional
standards as in other penal facility investigations. For example, the
Department investigated a super maximum facility in Baltimore, Maryland,

allegations pertaining to super maximum facilities.
Question 49 CDncems measures to prevent sexual violence against
detainees. First, 1 should note that the PrisQn Rape Elimination Act of 2000
mandales that all correctional facilities have standards that identify and

report sex.ual assaults and rapes. Our written materials provide detailed
information regarding Department ofJustice and Department ofHomeland
Security policies and practices design to prevent sexual violence, including
information on allegations ofsexual abuse and misconduct by staffand on
imnate-on-inmate sexual abuse, as well as the availability of compensation
for victims.
While the Department ofJustice and Department of Homeland
Security have their own policies, in geneta\ terms, 1can say that staff and
irunates alike are encournged to report incidents of misconduct or otherwise
inapproprime behavior. When allegations of serious abuse are accompanied
by credible evidence, appropriate administrative measures are taken. For
example, in the Bureau of Prisons, the staff member is removed from contact
with inmates or placed on administrative leave. Cases are also referred for
criminal prosecution when warranted. Finally, staff working with female

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49

inmates receive appropriate training including training on policies
prohibiting sexual abuse, assault, and intimidation.

Ouestion 50 concerns the use ofsolitary confine~ent and monitoring

Ouestion 51 concerns executions by lethal injection. The United
States included an understanding in its instrument of ratification of the CAT

that the treaty does not "~strict or prohibit the United States from applying

of the mental health ofdetainees. The Bureau ofPrisons does not use

the death penalty consistent with the Fifth. Eighth, and Fourteenth

solitary confinement in its facilities. Procedures and safeguards applicable

Amendments to the Constitution ofttle United States." The Supreme Court

in the limited cases where it is necessary to separate inmates temporarily

of the United States has found lethal injection 10 be consistent with the

from the general population, including mental health monitoring, are

Constitution

described in our written answer.

On the question relating to "prolonged isolatioJ:1 and indefinite
detention," the United States takes exception to the assumption contained in

1 now return the floor to Mr. BelIinger.

IBELI:iINGERJ
Question 52 deals with 81leged interrogation techniques. Although we

the question that prolonged isolation and indefinite detention per se

have submitted a lengthy written response, for purposes ofour meeting

constitutes cruel, inhuman, and degrading treatment or punishment Under

today, our answer to Question 27 provides our views on the topiC.

U.S. criminal law, the United States does not detain individUlds convicted of
criminal charges indefinitely.
Finally, inasmuch as this question is meant to relate to the detention of

enemy combatants,.there is no question that a State is authorized under
the law ofwar to detain combatants - whether lawful or unlawful- for
the duration ofthe armed conflict without charges.

Question 53 concerns implementation of the CAT in tight Qfthe
federal structure ofthe United States
Under the U.S. ~onstitution, the federal government is a government
of limited authority and responsibility. The resulting division of authority
means that state and local governments retain significant responsibility in
many areas, including in areas relevant to certain aspects of the
iInplemen~on

(lfthe CAT. Nonetheless, as a practical matter, this has not

detracted from or limited our substantive obligations under the CAT because

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lhe U.S. Constitution prohibits such conduct by state and local government

questions ate extremely broad, raising many issues outside the scope ofthe

officials.

Convention. In the interest of time, I would refer:you to our written

Question 54 concerns the individual complaitrts procedure under

Article 22 of lhe CAT. The United SlateS is not considering making a
declaration under Article 22.
On Question 55, while the United States has considered its existing

answers, our Second Periodic Report, as well as the latest U.S. Periodic
Report to the Human Rights Committee.

Mr. Chairman, that concludes auroral responses to the Committee's

extensive list of questions. As I mentioned before, OUI written submissions

reservations, understandings and declarations in light of the Conunittee's

as well as the information submitted in the Initial ReporJ and the Second

recommendation to withdraw them, there have been no developments in the

J>eriodic Report are much more detailed, and I ~ouJd once again refer the

interim that have cau.st:d the United States to revise its view.

Committee to those materials.

Question 56 concerns the Optional Protocol to the Convention
Against Torture. The United SlateS is not considering ratification ofthis

Thank you very much. My delegation looks forward to your
questions.

instrument. Question 57 concerns restrictions on equipment specifically
designed to inflict torture. The United States recognizes that trade and
export of certain items should be controlled to prevent their misuse. Under
the Export Administration Regulations. the export ofsuch items requ~s a
special license. Human rights vetting is a prereqUisite for the issuance of

such licenses. Items specifically designed for the use oftorture would never
receive such \\ license.
Question 58 concerns measures to respond to terrorism and Question
~

asks for information on measures to prevent domestic violence. Both

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2

u.s. Meeting witb U.N. Committee Against Torture
Opening Remarks
John B. Bellinger, III
Legal Adviser, U.S. Department of State
May 5, 2006

Mr. Chainnan, Distinguished Members ofthe Committee,
Membe.rs ofelvil Society and Other Observers,

My name is John Bellinger. I am the Legal Adviser ofthe Department of
State, and I serve as head of the United States delegation to the Conunittee
Against Torture.
()

Given the constraints oftime today and the need to answer the Committee's
many questions, I will keep this opening statement brief. I will make a few
general comments about our domestic legal framework related to torture,
reiterate our international commitments, and provide an overview of our
presentation.
At the outset I want to reiterate the United States Government's absolute
commitment to upholding our national and international obligations to
eradicate torture and to prevent cruel, inhuman, lll\d degrading treatment or
punishment worldwide. The President of the United States has made clear
that "[t]orture anywhere is an affiont to human dignity evczywhere" and that
"freedom from torture is an inalienable human right" Beyond the
protections in our Constitution that Mr. Lowenkron mentioned, the domestic
criminal laws in the United States prohibit torture. There are no exceptions
to this prohibition. Our Congress has passed laws that provide for wugll
federal sanctions, both civil and criminal, against those who engage in
torture outside the territo!), ofthe United States. Within the United States,
our 50 states and the federal government prohibit conduct that would
constitute torture under their civil and criminal laws.
And our laws have gone further. Our focus on eradicating torture and
punishing its perpetrators would be incomplete without a parallel effort to
help its victims recover from abuses. The Torture Victims Protection Act of
1992 supplements the Alien Tort Statute so that citizens and non-citizens of
the United States who are victims oftorture can bring claims for damages

against foreign government officials in U.S. federal courts. Additionally, the
Torture Victims ReliefAct of 1998 authorizes funding for the U.S.
Department of Health and Human Services and the U.S. Agency for
International Development to support programs that assist victims of torture,
domestically and overseas. The United States continues to lead the world in
its support or the United Nations Voluntary Fund for Victims of Torture.
U.S. appropriations to the Fund for Fiscal Years 1999-2004 totaled 28.5
million dollars.
And late last year, our Congress enacted, and the President signed into law,
the Detainee Treatment Act of 2005. The Act included a provision that
codified in law our already-existing policy against the use of cruel, inhuman
or dcgrading treatmcnt as t!)at tenn defined under the obligations the United
States assumed under the Convention. As a result ofthe law, no person "in
the custody or under the physical control ofthe United States Government,
regardless of nationality or physical location" shall be subjected to cruel,
unusual, and inhumane treatment Of punishInent prohibited by certain
provisions ofthe U.S. Constitution. The enactment of the Detainee
Treatment Act reinforces our nations commitment to upholding the values
of freedom and humanity on which our Nation was founded.
The United Stales recognizes the importance ofour international legal
obligations and the key role this Committee plays in the treaty-monitoring
process. The United States greatly appreciates this opportunity to meet with
the Committee and to explain the measures we have taken to give effect to
the obligations we have undertaken as a State Party to the Convention
A.gainst Torture and Other Cruel, Inhuman, and Degrading Treatment or
Punishment. The fact that the United States takes its international
obligations seriously is reflected in the great lengths to which we have gone
to provide you with an elttensive report and thorough answers to the many
questions you have posed. Our delegation is composed of senior-level
officials, representing every federal agency 0 f the United States Government
that is directly involved in implementing the Convention, and this further
demonstrates our commitment not only to fulfilling our obligations under the
Convention, but also to engaging in what we expect wi 11 be a productive
dialogue with you.
We know that you will have many questions about actions the U.S.
Government has taken in response to the terrorist attacks upon our country
on September 11 as well as the many allegations that have appeared in the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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or pWlishment in Article 16 ofthe CAT. There are similar provisions in the
law of war.
Moreover, much of the domestic U.S. law that addresses torture 8J1d other
forms ofabuse applies both in both anned conflict and in other situations.
For example, our extraterritorial torture statute prohibits tortuJe overseas and
applies equally to peTSOIUleloperating in an anned conflict and to
individuals outside such situations. The Unifonn Code of Military Justice
punishes abuse whether it occurs in an anned conflict or not The Detainee
Treatment Act of 2005 prohibits cruel, inhuman, ordegrading treatment or
punishment wherever such conduct might occur and applies with respect to
both civilian and military authorities.
As a result, while the United States maintains its view that the law of war is
the lex specioUs governing the detainee operations that we will discuss, we
are pleased to describe parallel protections afforded under U.S. laws and to
provide extensive infonnation about these operations in a sincere spirit of
cooperation with the Committee.

We will now begin to answer the questions you have posed to us. In light of
time constraints on this oral presentation, it will be impossible for US to reply
in detail to every aspect of your wide-ranging questions. In many cases, we
will refer you to the more detailed responses we have provided in writing.
Thank you very much.

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Lee, Michelle G

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From:
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Harris. Robert K; Kovar. Jeffrey 0

Subject:

Responses to additional questions

I

Gale, T Hanny
Friday, May 12,200611:12 AM
Lubetkin, Wendy C

\

Wendy)
Attached are the USA responses to the additional questions. Bob Harris says it is o.k. to post it.

12 May 2006·
Response of the ..,

Hanny Gale
Office of legal Affairs
U.S. Mission Geneva
E-mai': Galeth@state.gov
Tel: [41) (0)22-749-4460
Fax: [41] (0)22-749-4343
"A friend is someone who knows the sol19 in your heart
and can sing it back to you when you have forgotten the words."
This e-mail is UNCLASSIFIED per E. O. 12958

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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West, Lora
From:

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Subject:

Brancato, Gilda M
Tuesday, November 14, 2006 5:15 PM
Kovar, Jeffrey D; Barton, Paula J; Peay, T Michael
Aswad, Evelyn M; Harris, Robert K
UNGA adopts Disappearances convention by consensus !!II

Mike, Jeff, Paula - The US delegation read a short EOP laying a marker and incorporating our Human Rights Council
statement.
Deepest appreciation all around for all of your hard work and dedication to this negotiation and decision-making process.
All the Best. Gilda

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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General Statement of the United States: Forced Disappearances Text

As the task of the Working Group draws to a close and responsibility
is passed to the Human Rights. Commission to consider further work,
we express sincere appreciation to the Chair and his team, including
the Secretariat, for your enormous dedication, skill, and
industriousness during negotiations on a binding instrument to
combat this heinous crime.

We also commend the ~tate delegations, the independent experts, the

JeRe, and non-governmental organizations for their intense
commitment, expertise, tireless work, and collegiality throughout,
and give special thanks to the families of the disappeared for bearing
witness to this terrible scourge.

At the same time, as we have said before, in order to produce a
document tbat wiIJ attract the widest possible number of states
parties, treaty negotiations sbould be deliberate, unhurried, and
careful, allowing for full expression of views by all representatives,
with every effort to acbieve a consensus text that can be applied in all
legal systems.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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We regret that often the pace of negotiations, among other factors, has
resulted in a document that includes provisions the United States does
not support, and to which we have registered key reservations. These
reservations include, but are not limited to the following:

Preambular paragrapb 7 an~ Article 24(2) on the RIGHT TO
THE TRUTH. This is a notion that the United States views only in the
context of the freedom of information, which is enshrined in Article 19
of the ICCPR, consistent with our long-standing position under the
Geneva Conventions. We are grateful for the good will shown in
seeking compromise language in the Preamble, but our reservations
remain concerning this issue, including with respect to Article 24 (2),
which we read in this same light.
We have serious concerns about Article 2 which we firmly believe
needs a more focused DEFINITION that includes the element of
intentionality. This is the core of the Convention and we believe it needs.
a great deal more work.

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Article 5 requiring domestic legislation criminalizing CRIMES
AGAINST HUMANITY remains insufficiently defined and
inappropriate to an operative paragraph in the text.
As we have noted, the lack of a DEFENSE OF SUPERIOR

ORDERS in Article 6(2) could unfairly subject unwitting mili~ary and
law enforcement personnel to the possibility,of prosecution for actions
that they did not and could not know were prohibited.
Despite some modifications, the specific requirements for a
STATUTE OF LIMITATIONS in Article 8 continue to present a
problem of implementation within a Federal system like that of the U.S.
Likewise, Article 4 should not be read to require our various domestic
legal systems to enact an autonomous offense of enforced
disappearance, which is unnecessary and, from a practical standpoint,
extremely burdensome and unworkable in the United States.
We also note that our continuing objection to Article 9 (2)
concerning "FOUND IN" JURISDICTION has not been satisfactorily
addressed.
We have clearly stated for the record our continuing reservation
to the absence oflanguage in.Articie 16 explicitly conforming this text to

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the principle of NON-REFOULEMENT articulated in the 1951 Refugee
Convention.
We find that Article 17 concerning ACCESS TO PLACES OF
DETENTION, despite significant improvement, retains the possibility
of conflict with constitutional and legal provisions in the laws of some
state parties.
Finally, we remain unconvinced that the appropriate vehicle for
implementation of this instrument is a NEW TREATY MONITORING
BODY.
Despite our continuing reservations, let me reiterate to you, Mr.
Chairman, and your magnificent staff, the appreciation of my
delegation for your outstanding leadership and the warm, cooperative

and collegial spirit which defined these negotiations.

#18367

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Qt4\

Brancato, Gilda M
Thursday, July 27,200612:28 AM
Witten, Samuel M; Harris, Robert K; Aswad, Evelyn M; Hill, Steven R; Dorosin, Joshua L;
Haines, Avril 0; Deeks, Ashley S; Padmanabhan, Vijay M; 'Oas, Himamauli'; 'Camponovo,
Christopher N.'; 'Burger, James, Mr, 000 OGC'; 'thomas.burrows@usdoj.gov'; Propp,
Kenneth R; Hodgkinson, Sandra L; Sicade, lynn M (DRL); Johnson. Thomas A; Lagon, Mark
P; Barks-Ruggles, Erica J (DRl)
Kovar, Jeffrey 0; Barton, Paula J
RE: HRC adoption of draft disappearances treaty

I take this opportunity to inform you that Evelyn Aswad will be the new contact point in the Legal Adviser's
Office on the proposed disappearances convention, as after today I will be rotating to the Legal Office for
Consular Affairs. Evelyn's email address is above and her phone number is 202 736-7082. You will greatly
enjoy working with her before and during the upcoming UN General Assembly, when the proposed convention
will be considered for adoption by Member States, probably during November.
Wishing you all the best, and thanking you for your collegiality and assistance during the disappearances
negotiations, Gilda

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 22 JUN 2009 200706444

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The United States appreciates the opportunity to address the Human
Rights Council on the Draft Convention for the Protection of all Persons from.
Enforced Disappearance.

We thank the Chair of the Working Group and all

participants in the Working Group for focusing attention on this serious human
rights violation, although we express disappointment that the draft text of the
Convention, albeit significantly improved from earlier drafts, does not represent tbe
consensus of all members of the Working Group. The United States has been an
active participant in the Working Group in each session, and given our steady
participation, we are providing our understanding of the intent of States that
participated in the Working Group on a number of core issues. We will provide
further, detailed interpretations when this document comes up for consideration at
the UN General Assembly.

We reaffirm and incorporate herein our Closing

Statement at the final session of the Working Group, reproduced at pages 4849 of
tbe Working Group Report of the Fifth Session (E/CN.412006/57) ("Report").
We underscore at the outset our view, shared by other delegations, that the
definition of the crime (Article 2) would bave been mucb improved had, it been more
precise and included an explicit requirement for intentionality, particularly tbe
specific intent to place a person outside the protection of the law. The need for
intentionality was recognized by the Chair and recorded in paragraph 96 of. the
Report, which states that an intentionality requirement is implicit in the definition
of enforced disappearance, recognizing that "in no penal system was there an
off~nse

of enforced disappearance without intent." We agree and reaffirm our

understanding that under the Convention mens rea is an essential ingredient of the

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crime under Articles 2, 4, 6 (particularly Article 6(2), 12(4), 22, 25, &

other

articles.
Second tbe United States expresses its intent to interpret tbe Rigbt to Truth
in the preamble and in Article 24(2) consistent with the Commission on Human
Rights Resolution on the Right to Truth (2&05166), which states that the right may
be recognized in various legal systems (such as our own) as freedom of infOrmation,
the right to know, or the right to be informed, and also consistent with the
International Covenant on Civil and Political Rights which speaks to the right to
seek, receive and impart information. As noted in our Explanation of Position
delivered upon adoption of UNCHR resolution 2005166, the United States' position
on the right to know has not changed since the JeRC Conference on the Missing in
February 2003 as well as at the 28th ICRClRed Cross Conference in December 2003;
that is, the United States is committed to advancing the cause of families dealing
with the problem of missing persons; however, we do Dot acknowledge any new
international right or obligation in this regard. For the United States, which is not a
party to the 1977 Additional Protocol I to the Geneva Conventions and has no
obligations vis-i-vis any "right to truth" under Arnde 32 of that instrument,
families are informed of the fate of their missing family members based on the
longstanding policy of the United States and not because of Article 32.
Third, the United States wishes to place on record our understanding of
Article 43 of the draft Convention. We understand this provision to confirm that the
provisions of the law of armed conflict, also called international humanitarian law,
remain the lex specialis in situations of armed conflict and other situations to which

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international humanitarian law applies. The United States understands Article 43
to operate as a "savings clause" in order to ensure that the relevant provisions of
international humanitarian law take precedence over any other provisions
contained in this Convention.
Fourth, the United States continues to support the use of an existing treaty
body to perform monitoring functions, tbat is, the Human Rights Committee, which
currently deals with forced disappearances, in view ofthe Committee's expertise; in
the interests of consistency of jurisprudence, efficiency, avoidance of redundancy,
and cost; and in light of the ongoing proposals for treaty body reform. We would
hope tbat, per Article 27 of the draft Convention, States Parties adopt in the future
use of the Human Rights Committee as the monitoring body.
In addition to the points expressed above, we place on the record our
reservations, many of which are not~d in the Report and in our Closing Statement,
to, inter alia, the following articles, which is an illustrative (not exhaustive) list:

:> Article 4 on criminalization should not be read to require various domestic
legal systems to enact an autonomous offense of enforced disappearance,
which is unnecessary and, from a practical standpoint, unworkable in, for
example, a federal system such as our own.
~

Article 5 requiring criminalization of crimes against humanity is vague,
aspirationa) in nature, and inappropriate as an operative treaty provision.

The United States agrees with the statement in paragraph 106 of the Report
that Article 5 would "not create any additional obligations on States to
accede to particular instruments or amend their domestic legislation. n

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.,:

Article 6(2) on the, unavailability of a defense of obedience to superior orders
in a prosecution related to enforced disappearance could under certain
circumstances be inconsistent with due process guarantees and could subject
unwitting government personnel to the possibility of prosecution for actions
tbat they did not and could not know were prohibited. Therefore, as stated in
paragraph 109 of the Report, the United States interprets Article 6(2) to
establish no 'criminal responsibility on the part of an !ndividual unaware of
participating in the commission of an enforced disappearance.

~

Article 8 on statute of limitations presents problems of implementation in a
federal system and contains unclear text in paragraph 2.

~

Article 9(2) on "found in" jurisdiction remains unacceptable to the United
States, especially in view of the lack of precision in the definition of enforced
disappearance.

~

Article 16 on non-refoulement, which refers to violations of international
humanitarian law in the country of return, does not conform to international
principles on non·refoulement, as articulated in the 1951 Refugee
Convention.

~

Article 17 on standards for and access to places of detention retains the
possibility of conflict with constitutional and other 'legal provisions in the
laws of some States; accordingly we would interpret the term "any persons
with a legitimate interest" in Articles 17, 18, and 30 in accordance with the
domestic law of a State.

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Article 18 on access to information similarly retains the possibility of conflict
with constitutional and other legal provisions of a State and sets
unreasonable standards guaranteeing information.

)0>

Article 22 on additional criminalization, among other concerns, should
contain an express intentionality requirement, and the United States will
interpret it to contain such an intent requirement (as noted above).

)0>

Article 24 on the right to the truth and reparation contains text that is vague
and at the same time overly specific, employs an overbroad definition of a
"victim," and may not be consistent with a common law system for granting
remedies and compensation.

> Article 25 on children must be interpreted consistent with adoption laws and
other relevant domestic laws and with international obligations of tbe State
regarding children.
The United States respectfully requests that its views be made a part .of the
official record of the Human Rights Council.

~.

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Drafted: LIHRR - Gilda Brancato 6/8/06

x 72773

doc 26432

Cleared: Mission GenevalL - Jeff Kovar
Mission GenevalPSC - Jan Levin
LIHRR - Bob Harris (subs) - ok
LIPM - Vijay Padmanabhan - ok
L1LEI - Denise Manning - ok
10 - Mark Lagon - ok
IOIRHS - Tom Johnson - ok
DJaIMLA - Lynn Sicade - ok
SIWCI - Sam Witten (subs) - ok .
DOJ/OLP - Larry Rothenberg - ok
DOD/OGC - Chuck Allen - ok
NSClLegal- Him Das - ok

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GEJ+3B

General Statement of the United States: Forced Disappearances Text

As the task of the Work'jng Group draws to a close and responsibility
is passed to the Human Rights Commission to consider further work t
we express sincere appreciation to the Chair and his team, including
the Secretariat, for your el}(~rmous dedication, skill, and
industriousness during negotiations on a binding instrument to
combat this heinous crime.

We al$o commend the State delegations~ the independent experts, the
JCRC, and non-governmental organizations for their intense
commitment, expertise, tireless work, and'collegiality throughout,
and give special thanks to the families of the disappeared for bearing
witness to this terrible scourge.

At the same time, as we have said before, in order to produce a
document that will attract the widest possible number of states
parties, treaty negotiations should be deliberate, unhurried, and
careful t allowing for full expression of views by all representatives,
with every effort to achieve a consensus text that can be applied in all
legal systems.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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".

We regret that often the pace of negotiations, among other factors, has
resulted in a document that includes provisions the United States does
not support, and to which we have registered key reservations. These
reservations include, but are not limited to the following:

Preambular paragraph 7 and Article 24(2) on the RIGHT TO
THE TRUTH. This is a notion that the United States views only in the
context of the freedom of information, which is enshrined in Article 19
of tbe ICCPR, consistent with our long~standing.positionunder the
Geneva Conventions. We are grateful for the good will shown in
seeking compromise language in the Preamble, but our reservations
I.

remain concerning this issue, including with respect to Article 24 (2),

I

which we read in this same light.
We have serious concerns about Article 2 which we firmly believe
needs a more focused DEFINITION that includes the element of
intentionality. This is the cOTe oftbe Convention and we believe it needs
a great deal more work.

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Article 5 requiring domestic legislation criminalizing CRIMES
AGAINST HUMANITY remains insufficiently defined and

inappropriate to an operative paragraph in the text.
As we have noted, the lack of a DEFENSE OF SUPERIOR
ORDERS in Article 6(2) could unfairly subject unwitting military and
law enforcement personnel to the possibility of prosecution for actions
that they did not and could not know were prohibited.
Despite some modifications, the specific requirements for a
STATUTE OF LIMITATIONS in Article 8 continue to present a

problem of implementation within a Federal system

~ike

that of the U.S.

Likewise, Article 4 should not be read to require our various domestic
legal systems to enact an autonomous offense of enforced
disappearance, which is unnecessary and, from a practical standpoint,
extremely burdensome and unworkable in the United States.
We also note that our continuing objection to Article 9 (2)
concerning "FOUND IN" JURISJ;>ICTION has not been satisfactorily
addressed.
We have clearly stated for the record our continuing reservation
to the absence of language in Article 16 explicitly conforming this text to

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the principle of NON·REFOULEMENT articulated in the 1951 Refugee
. Convention.
We find that Article 17 concerning ACCESS TO PLACES OF
DETENTION, despite significant improvement, retains the possibility
of conflict with constitutional and legal provisions in the laws of some
state parties.
Finally, we rem'ain unconvinced that the appropriate vehicle for
implementation of this instrument is a NEW TREATY MONITORING

BODY.
Despite our continuing reservations, let me reiterate to you, Mr.
Chairman, and your ma;gnificent staff, the appreciation of my
delegation for your outstanding leadership and the warm, cooperative
and collegial spirit which defined these negotiations.

#18367

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~E 4L1A-

United States/Selected Core Legal Reservations to the Draft Forced Disappearances
Instrument

The United States maintains several core legal reservations' to the draft forced
disappearances treaty text and, for example, proposed the following textual amendments
to draft treaty provisions during the course of the five formal negotiating sessions of the
Working Group to elaborate a binding normative instrument to prohibit and punish forced.
disappearances. The following list of textual amendments proposed by the United States
during negotiations is illustrative and not exhaustive. Please consult our written
statement on the draft convention distributed at the Human Rights Council during its first
session (and posted on our website) as well as our Closing Statement at the conclusion of
negotiations in October 2005 (reproduced at pages 48-49 of the Report ofthe Fifth
Session of the Working Group) for additional information on the views of the United
States.
.

An illustrative sampling ofproposed textual amendments proffered by the United
States delegation during negotiations:
DEFINITION - Article 2
"For the purposes of this instrument, enforced disappearance is considered to be the
arrest, detention, or abduction of person by or with the authorization, support or
acquiescence of the state, followed by a refusal to acknowledge that deprivation of liberty
or by concealment ofthe fate or whereabouts of the disappeared person, with the
intention of removing that person from the protection of the law for a prolonged period of
time."

a

CRIMINALIZATION - Article 4
"Each State Party shall take the necessary measures to ensure that an enforced
disappearance is fully covered under its criminal or penal law."

CRIME AGAINST HUMANITY - Article 5The United States supporting reframing Article 5 as a prearnbular provision.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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DEFENSE OF SUPERIOR ORDERS - Article 6(2)
"No order or instruction from any public authority, civilian, military or other, may be
invoked to justify an offence of enforced disappearance ifthe accused knew that the order
was unlawful or a person of ordinary sense and understanding would have known the
order to be unlawful."

STATUTE OF LIMITATIONS-Article 8
"A State Party which applies a statute of limitation in respect of an enforced
disappearance shall take the necessary measures to ensure that the term of limitation is
proportionate to the extreme seriousness of the offence."

JURISDICTION - Article 9
"1. Each State party shall take the necessary measures to establish its competence to
exercise jurisdiction over an enforced disappearance:
(a) When the offence is committed within its territory;
(b) When the alleged offender is one of its nationals; and
(c) When the disappeared person is one of its nationals and the State Party considers
it appropriate."

CONSULTATION WITH CONSULAR AUTHORITIES - Article 10(3)
"Any foreign national held in custody pursuant to paragraph one may communicate with
an appropriate representative of the state of which he or she is a national in accordance
with applicable intemationallegal obligations."

NON-REFOULEMENT - Article 16
"1. No State party shall expel, return ("refouler"), or extradite a person to another State
where there are substantial grounds for believing that he or she would be in danger of
being subject to an enforced disappearance.

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2. For the purpose of determining whether there are such grounds) the competent
authorities shall take into account all relevant considerations, including) where
applicable) the existence in the State concerned of a consistent pattern of gross, flagrant
or mass violations of human rights"
3. The benefit of the present provision may not) however, be claimed by a person whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime) constitutes a danger to the community of that country. "

RIGHT TO THE TRUTHIFREEDOM OF INFORMATION ~ Article 24(2)
"Each victim has the freedom to seek) receive, and impart information regarding the
circumstances of the enforced disappearance, the progress and results of the investigation
and the fate of the disappeared person. Each State Party shall take appropriate measures
in this regard.))

TREATY MONITORY BODY ~ The United States firmly supported use of an
existing treaty body, the Human Rights Committee.
)- The Human Rights Committee already deals with forced disappearances,
which violate numerous provisions of the ICCPR.
)- The Human Rights Committee should continue to perform this monitoring
role, including under this instrument, for reasons of:
o

expertise,

o consistency of jurisprudence,
o efficiency,
o avoidance of redundancy, and
o cost savings.

>

In view of the specific proposal of the High Commissioner on Human Rights
to create a single, unified, standing treaty body, and the widespread
acknowledgement of the need for treaty body reform, the creation of a new
body at this juncture is not warranted.

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..
Doc 26771

Drafted: L/HRR - Gilda Brancato
Cleared: IOIRHS - Thomas Johnson

DRLIMLA - Lynn Sicade
Mission Geneva - Jeffrey Kovar

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RELEASED IN FULL
The United States appreciates the opportunity to address the Human
Rights Council on the Draft Convention for the Protection of all Persons from
Enforced Disappearance.

We thank the Chair of the Working Group and all

participants for focusing attention on this

seriou~

human rights violation, although

we express disappointment that the draft text of the Convention, albeit significantly
improved from earlier drafts, does not represent tbe consensus of all members of the .
Working Group. The United States was an active participant in the Working
Group in each session, and we are providing our understanding of the intent of
States that participated in the Working Group on a number of core issues. For a
fuller explanation, we refer you to our Written Statement on the draft Convention
which we have distributed at the Council and which we ask be made a part of tbe
record of proceedings, and we wiD provide further, detailed interpretations when
this document comes up for consideration at the UN General Assembly. We also
reaffirm and int.orporate herein our C\o~ing Statement deUvend at the final session
.

I

of the Working Group, reproduced at pages 48-49 of the Report of the Fifth Session.
We underscore at the outset our view, shared by other delegations, that the
definition of the crime (Article 2) would have benefited by being more precise and
including an e~plicit requirement for hitentionality, particularly the specific intent
to place a person outside the protection of the law. The need for intentionality was
recognized by the Chair and recorded ,in paragr~ph 96 of the Report, which states
that an intentionality requirement is implicit in the definition of enforced
disappearance.

We agree and reaffirm our understanding that under the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCJ:IIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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Convention mens rea is an essential ingredient of the

cri~e un~er

Articles 2, 4, 6

(particularly Article 6(2», 12(4),22,25, & other articles.
Second, the United States expresses its hitent to interpret the Right to
Truth in the preamble and in Article 24(2) consistent with the Commission on
. ./
Human Rights Resolution on the Right to Truth (2005/66), which states that the
right may be recognized in various legal systems (such as our own) as freedom of
information, the right to know, or the right to be informed, and also consistent with
the International Covenant on Civil and Political Rights (art. 19(2». We also
reaffirm our EoP delivered upon adoption of the UNCHR resolution.
Third, with respect to Article 43 of the draft Convention, we understand
this provision to confirm that the provisions of the law of armed conflict, also called
international humanitarian

la~,

remain the lex specialis in

situ~tions

of armed

conflict and other situations to which international humanitarian law applies. The
United States understands Article 43 to operate as a "savings clause" in order to
ensure that the relevant provisions of international humanitarian law take
precedence over any other provisions contained in this Convention.
Fourth, the United States continues to support the use of an existing treaty
body to perform monitoring functions, that is, the Human Rights Committee, in
view of the Committee's

expertise and in the interests of consistency of

jurisprudence, efficiency, avoidance of redundancy, and cost; and in light of the
ongoing proposals for treaty body reform. Finally we refer you to our Written
Statement for additional views on Articles 4, 5, 6, 8, 9(2),16, 17, 18,22,24 & 25 of
the draft Convention. Thank you Mr. Chair.

UNCLASSIFIED

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The United States appreciates the opportunity to address the Human
Rights Council on the Draft Convention for the Protection of all Persons from
Enforced Disappearance; We .thank the Chair of the, Working Group and all
participants in the Working Group for focusing attention on this serious human
rights violation, although we express disappointment that the draft text of the
Convention, albeit significantly improved from earlier drafts, does not represent the
consensus of all members of the Working Group. The United States has been an
active participant in the Working Group in each session, and given our steady
participation, we are providing our understanding of the intent of States that
participated in the Working Group on a number of core issues. We will provide
furtber, detailed interpretations when this document comes up for consideration at
. the UN General Assembly.

We reaffirm and incorporate herein our Closing

Statement at the final session of the Working Group, reproduced at pages 48-49 of
the Working Group Report or the Fifth Session (E/CN.4/2006/57) ("Report").
We underscore at the outset our view, shared by other delegations, that the
definition ofthe crime (Article 2) would have been much improved had it been more
precise and included an explicit requirement for intentionality, particularly the
specific intent to place a person outside the protection of the law. The need for
intentionality was recognized by the Chair and recorded in paragraph 96 of the
Report, which states that an intentionality requirement is implicit in the definition
of enforced disappearance, recognizing that "in no penal system was there an
offense of enforced disappearance without intent." We agree and reaffirm our
understanding that under the Convention mens rea is an essential ingredient of the

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UNCLASSIFIED
crime under Articles 2, 4, 6 (particularly Article 6(2», 12(4), 22, 25, &" other
articles.
Second the United States expresses its intent to interpret the Right to Truth
in the preamble and in Article 24(2) consistent with the Commission on Human
Rights Resolution on the Right to Truth (2005/66), which states that the right may
be recognized in various legal systems (such as our own) as freedom of information,
the right to know, or the right to be

informe~,

and also consistent with the

International Covenant on Civil and Political Rights which speaks to the right to
seek, receive and impart information. As noted in our Explanation of Position
delivered upon adoption of UNCHR resolution 2005166, the United States' position .
on the right to know has not changed since the JCRC Conference OD the Missing in
February 2003 as well as at the 28th ICRClRed Cross Conference in December 2003;
that is, the United States is committed to advancing the cause of families dealing
with the problem of missing persons; however, we do. not acknowledge any Dew
international right or obligation in this regard. For the United States, which is not a
party to the 1977 Additional Protocol I to the Geneva Conventions and has no
obligations vis-a-vis any "right to truth" under Article 32 of that instrument,
families are informed of the fate of their missing family members based" on the
longstanding policy of the United States and not because ofArticle 32.
Third, the United States wishes to place on record our understanding of
Article 43 of the draft Convention. We understand this provision to confirm that the
provisions of the law of armed conflict, also called international humanitarian law,
remain the lex specialis in situations of armed conflict and other situations to which

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international humanitarian law applies. The United States understands Article 43
to operate as a "savings clause" in order to ensure that the relevant provisions of
international humanitarian law take precedence over any other provisions
contained in this Convention.
Fourth~

the United States continues to support the use of an existing treaty

body to perform monitoring functions, that is~ the Human Rights Committee, which
currently deals with forced disappearances, in view of the Committee's expertise; in
.
.
the interests of consistency of jurisprudence, efficiency, avoidance of redundancy,
and cost; and in light of the ongoing proposals for treaty body reform. We would
hope

tbat~

per Article 27 of the draft Convention, States Parties adopt in the future

use of the Human Rights Committee as the monitoring body.
In addition to the points expressed above, we place on the record our
reservations, many of which are noted in the

R~port

and in our Closing Statement,

to, inter alia, the following articles, which is an illustrative (not exhaustive) list:
~

Article 4 on criminalization should not be

r~ad

to require various domestic

legal systems to enact an autonomous offense of enforced disappearance,
which is unnecessary and, from a practical standpointt unworkable in, for
example, a federal system such as our own.
~

Article 5 requiring criminalization of crimes against humanity is vague,
aspirational in nature, and inappropriate as an operative treaty provision.
The United States agrees with the statement in paragraph 106 of the Report
that Article 5 would "not create any additional obligations on States to
accede to

p~rticular

instruments or amend their domestic legislation."

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~

Article 6(2) on the unavailability of a defense of obedience to superior orders
in a prosecution related to enforced disappearance could under certain
circumstances be'inconsistent with due process guarantees and could subject
unwitting government personnel to the possibility of prosecution for actions
that they did not and could not know were

prohjbited~

Therefore, as stated in

paragraph 109 of the Report, the United States interprets Article 6(2) to
establish no criminal responsibility on the part of an individual unaware of
participating in the commission of an enforced disappearance.
~

Article 8 on statute of limitations presents problems of implementation in a
federal system and contains unclear text in paragraph 2.

~

Article 9(2) on "found in" jurisdiction remains unacceptable to the United
States, especially in view of the lack of precision in the definition of enforced
disappearance.

~

Artide 16 on non-refoulement, which refers to violations of international
humanitarian law in the country of return, does not conform to international
,principles on non-refoulement, as articulated in the 1951 Refugee
Convention.

~

Article 17 on standards for and access to places of detention retains the
possibility of conflict with constitutional and other legal provisions in the
laws of some States; accordingly we would interpret the term "any persons
with a legitimate interest" in Articles 17, 18, and 30 in accordance with' the
domestic Jaw of a State.

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~

Article 18 on access to information similarly retains the possibility.of conflict
with constitutional_ and other legal provisions of a State and sets
unreasonable standards guaranteeing information.

~

Article 22 on additional criminalization, among other concerns, should
contain an express intentionality requirement, and the United States will
interpret it to contain such an intent requirement (as noted above).

~ Article 24 on the right to the truth and reparation conta'ins text that is vague
and at the same time overly specific, employs an overbroad definition of a
"victim," and may not be consistent with a common law system for granting
remedies and compensation.
~

Article 25 on children must be interpreted consistent with adoption laws and
other relevant domestic laws and with international obligations of the State
regarding children.
The United States respectfully requests that its views be made a part of the

official record of the Human Rights Council.

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Drafted: LIHRR - Gilda Brancato 6/8/06

x 72773

doc 26432

Cleared: Mission GenevalL':' Jeff Kovar
Mission GenevaIPSC - Jan Levin
LIHRR - Bob Harris (subs) - ok
LIPM - Vijay Padmanabhan - ok
LILEI - Denise Manning - ok
10 - Mark Lagon - ok
IOIRHS - Tom Johnson - ok
DRLIMLA - Lynn Sicade - ok
SIWCI - Sam Witten (subs) - ok
DOJ/OLP - Larry Rothenberg - ok
DOD/OGC - Chuck Allen - ok
NSClLegal- Him Das - ok

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RELEASED IN FULL
The United States appreciates the opportunity to address the Human
Rights Council on the Draft Convention for the Protection of all Persons from
Enforced Disappearance.

We thank the Chair of the Working Group and all

participants for focusing attention on this grave buman rights violation, although
we

expre~s

disappointment that the draft text of the Convention, albeit significantly

improved from earlier drafts, does not represent the consensus of all members of the'
Working Group. The United States was an active participant in the Working
Group in each session, and we are providing our understanding of the intent of
States that participated in the Working Group on a

numbe~

of core issues. For a

fuller explanation, we refer you to our Written Statement on the draft Convention
'which we have distributed at the Council and which we ask be made a part of the
record of proceedings, and we wiD provide further, detailed interpretations when
this document comes up for consideration at the UN General Assembly. We also
reaffirm and incorporate herein our Closing Statement delivered at the final session
of the Working Group,.reproduced at pages 48-49 of the Report of the Fifth Session.
We underscore at tbe outset our view, shared by other delegations, tbat the
definition of the crime (Article 2) would bave benefited by being more precise and
including an explicit requirement for intentionality, particularly the specific intent
to place a person outside the protection of the law. The need for intentionality was
recognized by the Chair and recorded in paragraph 96 of the Report, which states
that an intentionality requirement is itnplicit in the definition of enforced
disappearance.

We agree and reaffirm our understanding that under the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCillE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
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UNCLASSIFIED

Convention mens rea is an essential ingredient of the crime under Articles 2, 4, '6
(particularly Article 6(2», 12(4),.22,25, & other articles.
Second, the United States expresses its intent to interpret the Right to
Truth in the preamble and in Article 24(2) consistent with the Commission on
Human Rights Resolution on the Right to Truth (2005/66), which states that. the
right may be recognized in various legal systems (such as our own) as freedom of
information, the right to know, or the right to be infor~ed, and also consistent with
the International Covenant on Civil and Political Rights (art. 19(2». We also
reaffirm our EoP delivered upon adoption of the UNCHR resolution.
Third, witb respect to Article 43 of the draft Convention, we understand
tbis provision to confirm tbat the provisions of the law of armed conflict, also called
international humanitarian law, remain the lex specialis in situations of armed
conflid and other situations to which international humanitarian law applies. The
United States understands Article 43 to operate as a "savings clause" in order to
ensure tbat the relevant provisions of international humanitarian law take
precedence over any other provisions contained in this Convention.
Fourth, the United States continues to support the use of an existing treaty
body to perform monitoring (unctions, that is, the Human Rights Committee, in
view of the Committee's

expertise and in the interests of consistency of

jurisprudence, efficiency, avoidance of redundancy, and cost; and in light of the
ongoing proposals for treaty body reform. Finally we refer you to our Written
Statement for additional views on Articles 4, 5, 6, 8, 9(2), 16, 17, 18, 22, 24 & 25 of
the draft Convention. Thank you Mr. Chair.

UNCLASSIFIED
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Convention mens· rea is an

~ssential

ingredient of the crime Urider Articles 2, 4, 6

(particularly Article 6(2», 12(4), 22,25, & other articles.
Second, the United States expresses its intent to interpret the Right to
Truth in the preamble and in Article 24(2) consistent with the Commission on
Human Rights Resolution on the Right to Truth (2005/66), which states that the
right may be recognized in various legal systems (such as our own) as freed9m of
information, the right to know, or the right to be informed, and also consistent with
the International Covenant on Civil and Political Rights (art. 19(2».

We also

reaffirm our EoP delivered upon adoption of the UNCHR resolution.
Third, with respect to Article 43 of the draft Convention, we understand
this provision to confirm that the provisions of the law of armed conOict, also called
internationa,i humanitarian law, i'emain thc fex speciaUs in situations of

arm~d

conflict-and other situations to which international humanitarian law applies. The
United States understands Article 43 to operate as a "savings clause" in order to
ensure that the relevant provisions of international humanitarian law take
precedence over any other provisions contained

in this Convention.

Fourth, the United States continues to support the use of an existing treaty
body to perform monitoring functions t that is, the Human Rights Committect in
view of the Committee's

expertise and in the interests of consistency of

jurisprudencc t efficiency, avoidance of redundancy, and cost; and in light of the
o.ngoing proposals for treaty body reform. Finally we refer you to our Written

:!

Statement for additional views on Articles 4, 5, 6, 8, 9(2), 16, 17, 18, 22, 24 & 25 of
the draft Convention. Thank you Mr. Chair.

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RELEASED IN FULL

West, Lora
From:
Sent:

To:

SUbject:

Brancato, Gilda M
Friday, December 09, 2005 5:40 PM
'hdas@nsc.eop.gov'; 'jweigman@nsc.eop.gov'; 'Burger, James, Mr, DoD OGe'; Harris, Robert
K; Brooks, Waldo W; Legal-L-HRR; Jacobson. Linda; lucas. William E; Johnson, Thomas A;
Sicade, Lynn M (DRL); Camponovo, Christopher N (DRL); Noyes. JUlieta V (ORL); Witten,
Samuel M; Propp, Kenneth R; Kovar, Jeffrey D; Barton, Paula J; DePirro, Velia M; Levin, Jan
Emailing: Final of proposed UN disapperances treaty text

Final of proposed

dlsapperance...
Attached FYI is final text of the proposed UN forced disappearances convention, completed at the CHR in
Geneva this Fall. A fuller e-mail explanation and supporting documents, includuing the strong objections of the United
States delegation, and discussion of next steps to follow by separate email.
Happiest holidays, sincerely. Gilda

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

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ElCNA/2005/WG.22/WP.IIREYA
23 September 2005

(Translated/rom French)

INTERNATIONAL CONVENTION
FOR THE PROTECTION OF ALL PERSONS
FROM ENFORCED DISAPPEARANCE

Preamble

The States Parties to this Convention,

Considering the obligation of States under the Charter of the United Nations to promote
universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to the Universal Declaration of Human Rights,
Recalling the International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights and all other relevant international
instruments in the fields of human rights, humanitarian law and international criminal law,

Recalling the Declaration on the Protection of All Persons from Enforced Disappearance
adopted by the General Assembly of the United Nations in its resolution 47/133. of
18 December] 992,

Aware of the extreme seriousness of enforced disappearance, which constitutes a crime
and, in certain circumstances e.tefined in international law, a crime against humanity,

Determined to prevent enforced disappearances and combat impunity for the crime of
enforced disappearance,

Considering the right of any person not to be subjected to an enforced disappearance, the
right of victims to justice and to reparation and,

Affirming the right to know the truth about circumstances of an enforced disappearance
and the fate of the disappeared person, and the respect of the right to freedom to seek, receive
and impart information to this end.

Have agreed as follows:

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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-2-

Article 1
1.

No one shall be subjected to enforced disappearance.

2.

No exceptionalcireumstances whatsoever, whether a state of war or a threat of war,

internal political instability or any other public emergency, may be invoked as a justification for
enforced disappearance.

Article 2
For the purposes of this Convention, enforced disappearance is considered to be the
arrest, detention, abduction or any other form of deprivation of liberty committed by agents, of
the State or by persons.or 'groups of persons acting with the .authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law.

Article 3
Each State Party shall take appropriate measures to investigate acts defined in article 2
committed by persons or groups of persons acting without th~ authorization, support or
acquiescence ofthe State and to bring those responsible to justice.

Article 4
Each State Party shan take the necessary measures to ensure that enforced disappearance
constitutes an,offence under its criminallaw.

Article 5
The widespread or systematic practice of enforced disappearance constitutes a crime
against humanity as defined in appUcable international law and shall attract the consequences
provided for under such applicable international law.

Article 6
}.

Each State party shaU take the necessary measures to hold criminally responsible at least:
(a)

Any person who commits, orders, solicits or induces the commission of, attempts

to commit, is an accomplice to or participates in an enforced disappearance;

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(b)

The superior who:
(i)

Knew, or consciously disregarded information which clearly indicated,
that subordinates under his or her effective authority and control were
committing or about to commit a crime of enforced disappearance;

(ii)

Exercised effective responsibility for and control over activities which
were conc~rned with the crime of enforced disappearance; and

(iii)

Failed to take all necessary and reasonable measures within his or her
power to prevent or repress the commission of the enforced disappearance
or to submit the matter to the competent authorities for investigation and
prosecution;

(c)

Subparagraph (b) above is without prejudice to the higher standards of

responsibility applicable under relevant international law to a military commander or to a person
effectively acting as a military commander.
2.

No order or instruction from any public authority, civilian, military or other, may be

invoked to justifY an offence of enforced disappearance.
Article 7

1.

Each State Party shall make the offence of enforced disappearance punishable by

appropriate penalties which take into account its extreme seriousness.
2.

Each State Party may establish:
(a)

Mitigating circumstances, in particular for persons who. having been implicated

in the commission of an enforced disappearance, effectively contribute to bringing the
disappeared person forward alive or make it possible to clarify cases of enforced disappearance
or to identifY the perpetrators of an enforced disappearance;
(b)

Without prejudice to other criminal procedures, aggravating circumstances, in'

particular in the event of the death of the disappeared person or the commission of an enforced
disappearance in respect of pregnant women, minors, persons with disabilities or other
particularly vulnerable persons.
Article 8

Without prejudice to article 5,

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1.

A State Party which applies a statute of limitations in respect of enforced disappearance

shall take the necessary measures to ensure that the term of limitation for criminal proceedings:
(a)

Is of long duration and is proportionate to the extreme seriousness of this offence;

(b)

Commences from the moment when the offence of enforced disappearance

ceases, taking into account its continuous nature.
2.

Each State Party shall guarantee the right of victims of enforced disappearances to an

effective remedy during the term of limitation.
Article 9

J.

Each State Party shall take the necessary measures to establish its jurisdiction over the

offence of enforced disappearance:
(a)

When the offence is committed in any territory under its jurisdiction or on board a

ship or aircraft registered in that State; .
(b)

When the alleged offender is one ofits nationals;

(c)

When the disappeared person is one of its nationals and the State Party considers

it appropriate.
2.

Each State Party shall likewise take such measures

~

may be necessary to establish its

jurisdiction over the offence of enforced disappearance when the alleged offender is present in

any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in
accordance with its international obligations or surrenders him or her to an international criminal
tribunal whose jurisdiction it has recognized.
3.

This Convention does not exclude any additional criminal jurisdiction exercised in

accordance with national law.
Artide 10
1.

Upon being satisfied, after an examination of the information available to it, that the

circumstances so warrant. any State Party in whose territory a person alleged to have committed
an offence of enforced disappearance is present shall take him or her into custody or take such
other legal measures as are necessary to ensure his or her presence. The custody and other legal
measures shaU be as provided for in the Jaw of that State Party but may be continued only for
such time as is necessary to ensure the person's presence at criminal, surrender or extradition
proceedings.

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2.

A State Party which has taken the measures referred to in paragraph I shall immediately

carry out a preliminary inquiry or investigations to establish the facts. It shall notify the States
Parties referred to in article 9, paragraph 1, of the measures it has taken in pursuance of
paragraph 1 of this article, including detentio'n and the circumstances warranting detention, and
the findings of its preliminary inquiry or its investigations, indicating whether it intends to
exercise its jurisdiction.

3.

Any person in custody pursuant to paragraph 1 shall be assisted in communicating

immediately with the nearest appropriate representative of the State of which he or she is a
national, or, if he or she is a stateless person, with the representative ofthe State where he or she
usually resides.
Article 11
I.

The State Party in the territory under whose jurisdiction a person alleged to have

committed an offence of enforced disappearance is found shall, if it does not extradite that
person or surrender him or her to another State in accordance with its international obligations or
surrender him or her to an international criminal tribunal whose jurisdiction it has recognized.
submit the case to its competent authorities for the purpose of prosecution.
2.

These authorities shall take their

~ecision

in the same manner as in the case of any

ordinary offence of a serious nature under the law of that State Party. In the cases referred to in
article 9, paragraph 2, the standards of evidence required for prosecution and conviction shall in

no way be less stringent than those which apply in the cases referred to in article 9, paragraph 1.
3.

Any person against whom

proce~dings

are brought in connection with an offence of

enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any
person tcied for an offence of enforced disappearance shall benefit from a fair trail before a

competent, independent and impartial court or tribunal established by law.
Article 12
I.

Each State Party shall ensure that any individual who alleges that a person has been

subjected to enforced disappearance has the right to report the facts to the competent authorities,
which shall examine the allegation promptly and impartially and, where appropriate, undertake
without delay a thorough and impartial investigation. Appropriate steps shall be taken, where
necessary, to ensure that the complainant, witnesses, relatives of the disappeared person and their

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defence counsel, as well as persons participating in the investigation, are protected against all
ill-treatment or intimidation as a consequence of the complaint or any evidence given.
2.

Where there are reasonable grounds for believing that a person has been subjected to

enforced disappearance, the authorities referred to in paragraph I shall undertake an
investigation. even if there has been no formal complaint.
3.

Each State Party shall ensure that the authorities referred to in paragraph t:
(a)

Have the necessary powers and resources to conduct the investigation effectively,

including access to the documentation and other information relevant to their investigation;
(b)

Have access, if necessary with the prior authorization of a judicial authority,

which shall rule p,:omptly on the matter, to any place of detention or any other place where there
are reason~ble grounds to believe that the disappeared person may be present.
4.

Each State Party shall take the necessary measures to prevent and sanction acts that

hinder the conduct of-the investigations. It shall ensure in particular that persons suspected of
having committed an offence of enforced disappearance are not in a position to influence the
progress of the investigations by means of pressure or acts of intimidation or reprisal aimed at
the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at
persons' participating in the investigation.

Article 13

1.

For the purposes of extradition between States Parties, the offence of enforced

disappearance shall not be regarded as a political offence or as an offence connected with a
political offence or as an offence inspired by political motives. Accordingly, a request for
extradition based on such an offence may not be refused only on these grounds.
2.

The offence of enforced disappearance shall be deemed to be included as an extraditable

offence in any extradition treaty existing between States Parties before the entry into force ofthis
Convention.
3.

States Parties undertake to include the offence of enforced .disappearance as an

extraditable offence in any extradition treaty subsequently to be concluded between them.
'4.

If a State Party which makes extradition conditional on the existence of a treaty receives

a request for extradition from another State Party with which it has no extradition treaty, it may
consider this Convention as the necessary legal basis for extradition in respect of the offence of
enforced disappearance.

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5.

States Parties which do not make extradition conditional on the existence of a treaty

shal1"recognize the offence of

enforce~

disappearance 'as an extraditable offence between

themselves.
(

6.

Extradition shall, in all cases, be subject to the conditions.provided for by the law of the

requested State Party or by applicable extradition treaties, including, in particular, conditions
relating to the minimum penalty requirement for extradition and the grounds upon which the
requested State Party may refuse extradition or make it subject to certain conditions.
7.

Nothing in this Convention shall be interpreted as imposing an obligation to extradite if

the requested State Party has substantial grounds for believing that the request has been made for
the purpose of prosecuting or punishing a person on account ofthat person's sex, race, religion,
nationality, ethnic origin, membership of a particular social group or political opinions, or that
compliance with the request would cause harm to that person for anyone of these reasons.
Article 14
I.

States Parties shall afford one another the greatest measure of mutual legal assistance in

connection with criminal proceedings brought in respect of an offence of enforced
disappearance, including the supply of all evidence at their disposal that is necessary for the
proceedings.
2.

Such legal assistance shall be subject to the conditions provided for by the domestic law

of the requested State Party or by applicable treaties on mutual legal assistance, including, in
particular, the conditions in relation to the grounds upon which the requested State Party may
refuse to grant mutual legal assistance or may make it subject to conditions.
Article IS

States Parties shall cooperate with each other and shaH afford one another the greatest
measure of assistance with a view to assisting victims of enforced disappearance. and in
searching for, locating and releasing disappeared persons and, in the event of death, in exhuming
and identifYing them and returning their remains.

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Article 16
1.

No State Party shall expel, return ("refouler"), surrender or extradite a person to another

State where there are substantial grounds for believing that he or she would be in danger of being
subjected to enforced disappearance.
2.

For the purpose of detennining whether there are such grounds, the competent authorities

shall take into account all relevant considerations, including, where applicable, the existence in
the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights
or ofserious violations of international humanitarian law.

Article 17
1.

No one shall be held in secret detention.

2.

Without prejudice to other international obligations of the State Party with regard to the

deprivation of liberty. each State Party shall, in its legislation:
(a)

Establish the conditions under which orders of deprivation of liberty may be

(b)

Indicate those authorities authorized to order the deprivation of liberty;

(c)

Guarantee that any person deprived of liberty shall be held solely in officially

given;

recognized and supervised places of deprivation ofliberty;
(d)

Guarantee that any person deprived of liberty shall be authorized to communicate

with and be visited by his or her family, counselor any other person of his or her choice, subj~t
only to the conditions established by law, or, ifhe or she is a foreigner, to communicate with his
or her consular aut':t0rities, in accordance with applicable international law;
(e)

Guarantee access by the competent and legally authorized authorities and

institutions to the places where persons are deprived of liberty, if necessary with the prior
authorisation of a judicial authority ;

(f)

Guarantee that any person deprived of liberty and, in the case of a suspected

enforced disappearance, the person deprived of liberty not being able to exercise this right, that
any person with a legitimate interest, such as relatives of the person deprived of liberty, their
representative or their counsel, in all circumstances, shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of the deprivation of
liberty and order the release if that deprivation ofJiberty is not lawful.

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Each State Party shall assl:lre the compilation and maintenance of one or more up-to-date

official registers and/or records of persons deprived of liberty, which shall be made promptly
available, upon request, to any judicial or other competent authority or institution authorized for
that purpose by the law of the State Party concerned or any relevant international legal
instrument to which the State concerned is a party. The infonnation ..contained therein shall
include, as a minimum:
(a)

The identity of the person deprived of liberty;

(b)

The date, time and location where the person was deprived of liberty and the

identity of the authority who deprived the person of liberty;
The authority having decided the deprivation of liberty and the reasons for the

(c)

deprivation of liberty;
(d)

The authority controlling the deprivation of liberty;

(e)

The place of deprivation of liberty, the date and time ofadmission to the place of

. deprivation of liberty and the authority responsible for the place of deprivation of liberty;

(1)

Elements regarding the physical integrity ofthe person deprived of liberty;

(g)

I~

the ev~nt of death during the deprivation of liberty, the circumstances and

cause of death and the destination of the human remains;
The date and time of release or transfer to another place of detention, the

(h)

destination and the authority.responsible for the transfer.

Article 18
1.

Without prejudice to articles 19 and 20, each State Party shall guarantee to any person

with a legitimate interest in this information, such as retalives of the person deprived of liberty,
their representative or their counsel, access to at least the following information:
(a)

The authority having decided the deprivation ofliberty;

(b).

The date, time and location where the person was deprived of liberty and admitted

to the place of deprivation of liberty;
(c)

The authority controlling the deprivation of liberty;

(d)

The whereabouts of the person deprived of liberty, including, in the event of a

transfer to another place of deprivation of liberty, the destination and the authority responsible
for the transfer;
(e)

The date, time and place of release;

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(f)

Elements regarding the physical integrity of the person deprived of liberty;

(g)

In the event of death during the deprivation of liberty, the circumstances and

cause of death and the destination of the human remains.
2.

Appropriate measures shall be taken, where necessary, to protect the persons referred to

in paragraph I, as well as persons participating in the investigation, from any ill-treatment,
intimidation or sanction as a result of the search for information concerning a person deprived of

liberty.
Article 19
I.

Personal information, including medical and genetic data, which are collected andlor

transmitted within the framework of the search for a disappeared person shall not be used or
made available for purposes other than the search for the disappeared person. This is without
prejudice to the use of such infonnation in criminal proceedings relating to an offence of
enforced disappearance or the exercise ofthe right to obtain reparation.
2.

The collection, processing, use and storage of personal information, including medical

and genetic data, shall not infringe or have the effect of infringing the human rights, fundamental
freedoms or human dignity of an individual.

Article 20
1.

Only when a person is under the protection of the law and the deprivation of liberty is

subject to judicial control, can the right to information referred to in Article 18 be restricted and
only on an exceptional basis, where strictly necessary and provided for by law, and if the
transmission of the information would undermine the privacy or safety of the person, hinder a
criminal investigation, or for other equivalent reasons in accordance with the law, and in
conformity with applicable international law and with the objectives of this Convention. In no
case shalf there be restrictions to the right to information referred to in article 18 that could
constitute conduct defined in article 2 or be in violation of article 17, paragraph 1.
2.

Without prejudice to consideration of the lawfulness of the deprivation of a person's

liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph I the right
to a prompt and effective judicial remedy as a means of obtaining without delay information

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~

referred to in article 18, paragraph 1. This right to a remedy may not be suspended or restricted

in any circumstances.
Article 21
Each State Party shall take the necessary measures to ensure that persons deprived of
liberty are released in a manner permitting reliable verification that they have actually been
reieased. Each State Party shall a/so take the necessary measures to assure the physical integrity
of such persons and their ability to exercise fully their rights at the time of release, without
prejudice to any obligations to which such persons may be subject under nationa/law.
Article 22
Without prejudice to article 6, each State Party shall take the necessary measures to
prevent and impose sanctions for the following conduct:
(a)

Delaying or obstructing the remedies referred to in article 17, paragraph 2 (f), and

article 20, paragraph 2;
(b)

Failure to record the deprivation of liberty of any person, or the recording of any

information which the official responsible for the official register and/or records knew or should
have known to be inaccurate;
(c)

Refusal to provide infonnation on the deprivation of liberty of a person, or the

provision of inaccurate information, even though the legal requirements for providing such
information have been met.
Article 23

1.

Each State Party shall ensure that the training of law enforcement personnel, civil or

military, medical personnel, public officials and other persons who may be involved in the
custody or treatment of any person deprived of liberty includes the necessary education and

information regarding the relevant provisions of this Convention, in order to:
(a)

Prevent the involvement of such officials in enforced disappearances;

(b)

Emphasize the importance of prevention and investigations in relation to enforced

disappearances;
(c)

Ensure that the urgent need to resolve cases of enforced disappearance is

recognized.

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2.

Each State Party shall ensure that orders or instructions prescribing, authorizing' or

encouraging enforced disappearance are prohibited.

Each State Party shall guarantee that a

person who refuses to obey such an order will not be punished.
3.

Each State Party shall take the necessary measures to ensure that the persons referred to

in paragraph I who have' reason to believe that an enforced disappearance has occurred or is
planned report the matter to their superiors and, where necessary, to the appropriate authorities
or organs vested with reviewing or remedial powers.

Article 24
I.

For the purposes of this Convention, "victim"

means the disappeared person and any

individual who has suffered harm as a direct result of an enforced disappearance.
2.

Each victim has the right to know the truth regarding the circumstances of the enforced

disappearance, the progress and results of the investigation and the fate of the disappeared
person. Each State Party shall take appropriate measures in this regard.
3.

Each State Party shall' take all appropriate measures to search for, locate and release

disappeared persons and, in the event of death, to locate, respect and return their remains.
4.

Each State Party shall ensure in its legal system that the victims of enforced

disappearance have the right to obtain reparation and prompt, fair and adequate compensation.
5.

The right to obtain reparation referred to in paragraph 4 covers material and

psychologicid hann and, where appropriate, other means of reparation such as:

6.

(a)

Restitution;

(b)

Rehabilitation;

(c)

Satisfaction, including restoration of dignity and reputation;

(d)

Guarantees of non-repetition.

Without prejudice to the obligation to continue the investigation until the fate of tbe

disappeared person has been clarified, each State Party shall take the appropriate steps with
regard to the legal situation of the disappeared persons whose fate has not been clarified and that
of their relatives, in fields such as social welfare, financial matters, family law and property
rights.
7.

Each State Party shall guarantee the right to fonn and participate freely in organizations

and associations concerned with contributing to the establishment of the cir~umstances of

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enforced disappearances and the fate of disappeared persons, and with assistance to victims of
enforced disappearance.

Article 2S

t.

Each State Party shall take the necessary measures to prevent and punish under its

criminal law:
(a)

The wrongful removal of children who are subjected to enforced disappearance,

children whose father, mother or legal guardian is subjected to enforced disappearance or
children born during the captivity of a mother subjected to enforced disappearance;

(b)

The falsification, concealment or destruction of documents attesting to the true

identity of the children referred to in subparagraph (a).
2.

Each State Party shall take the necessary measures to search for and identify the children

referred to in paragraph 1 (a) and to return them to their families of origin, in accordance with
legal procedures and applicable international agreements.
3.

States Parties shall assist one another in searching for, identifying and locating the

child,ren referred to in paragraph 1 (a).

4.

Given the need to protect the best interests of the children referred to in paragraph 1 (a)

and their right to preserve, or to have re-established, their identity, including their nationality,
name and family relations as recogtlized by law, States Parties which recognize a system of
adoption or other form of placement of children shall have legal procedures in place to review
the adoption or placement procedure, and, where appropriate, to annul any adoption or
placement of children that stemmed from an enforced disappearance.

S.

In all cases, and in particular in all matters relating to this article, the best interests of the

child shall be a primary consideration, and a child who is capable of forming .his or her own
views shall have the right to express those views freely, the views of the child being given due
weight in accordance with the age and maturity of the child.

Article 26
1.

A Committee on Enforced Disappearances (hereafter referred to as the Committee) shall

be established to carry out the functions provided for under this Convention. The Committee
shall consist of 10 experts of high moral character and recognised competence in the field of
human rights, who shall serve in their personal capacity and be independent and impartial. The

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members of the Committee shall be elected by the States Parties according to equitable
geographical distribution. Consideration shall be given to the usefulness of the participation to
the work of the Committee of persons having relevant legal experience and to balanced gender
representation.
2.

The members of the Committee shall be elected by secret ballot from a list of persons

nominated by the States Parties from among their nationals, at biennial meetings of States Parties
convened by the Secretary General of the United Nations for this purpose. At those meetings, for
which two thirds of the States Parties shall constitute a quorum, the persons elected to the
Committee shall be those who obtain the largest number of votes and an absolute majority of
votes ofthe representatives ofStates Parties present and voting.
3.

The initial election shall be held no later than six months after the date of entry into force

of this Convention. At least four months before the date of each election, the Secretary General
of the United Nations shall address a letter to the States Parties inviting them to submit the
nominations within three months. The Secretary General shall prepare a list in alphabetical order
of all persons thus nominated, indicating the State Party which nominated each candidate.
He/She shall submit this list to all States Parties.
4.

The members of the Committee shall be elected for a term offOUT years. They shall be

eligible for re-election once. However, the tenn of five of the members elected at the first
election shall expire at the end of two years; immediately after the first election, the names of
these five members shall be chosen by lot by the chairman of the meeting referred to in
paragraph 2 of this article.
5.

If a member of the Committee dies or resigns or for any other cause can no longer

perfonn hislher committee duties. the State Party which nominated him/her shall, 'in accordance
with the criteria set out in paragraph 1 of this artic.1e, appoint another candidate from among its
nationals, to serve for the remainder ofhislher tenn, subject to the approval ofthe majority ofthe
States Parties. The approval shall be considered given unless half or more of the States Parties
respond negatively within six weeks after having been informed by the Secretary General of the
United Nations of the proposed appointment.
6.

The Committee shall establish its own rules of proced,ure.

7.

The Secretary General or'the United Nations shall provide the necessary means, staff and .

facilities for the effective performance of the functions of the Committee. The Secretary General
of the United Nations shall convene the initial meeting of the Committee.

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8.

The members of the Committee shall be entitled to the facilities, privileges and

immunities of experts on mission for the United Nations as laid down in the relevant sections of
the Convention on the Privileges and Immunities of the United Nations.
9.

Each State Party shall co-operate with the Committee and assist its members in the

fulfilment of their mandate, to the extent of the Committee's functions that the State Party has
accepted.

Article 27
A Conference of States Parties will take place at the earliest four years and at the latest
six years following the entry into force of this Convention to evaluate the functioning of the
Committee and to decide, in accordance with the procedure described in article 44, paragraph 2,
whether it

is appropriate to transfer to another body - without excluding any possibility - the

monitoring of this Convention, in accordance with the functions defined in articles 28 to 36.

Article 28
1.

In the framework of the competencies granted by this Convention, the C<?mmittee shall

co-operate with all relevant organs, offices and specialized agencies and funds of the United
Nations, with the treaty bodies instituted by interna~ional instruments, with the special
procedures of the United Nations, and with the regional intergovernmental organizations or
bodies concerned, as well as with all relevant State institutions, agencies or offices working
toward the protection of all persons against enforced disappearances.
2.

As it discharges its mandate, the Committee shall consult other treaty bodies instituted by

relevant international human rights instruments, in particular the Human Rights Committee
instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the
consistency oftheir respective observations and ,recommendations.

Article 29
1.

Each State Party shall submit to the Committee, through the Secretary-General of the

United Nations. a report on the measures taken to give effect to its obligations under this
Convention, within two years after the entry into force of this Convention for the State Party
concerned.

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The Secretary-General of the United Nations shall make this report available to all States

Parties.
3.

Each report shall be considered by the Committee, which shall issue such comments,

observations or recommendations as it may deem appropriate. The comments, observations or
recommendations shall be communicated to the State Party concerned, which may respond to
them, on its own initiative or at the request of the Committee.
4.

The Committee may also request further information from State Parties relevant to the

implementation of this COnvention.

Article 30
I.

A request that a disappeared person should be sought and found on an urgent basis may

be submitted to the Committee by relatives of the disappeared person or their legal
representatives, their counselor any person authorized by them, as well as by any ot:1)er person
having a legitimate interest.
2.

If the Committee considers that the request for urgent action submitted in pursuance of

paragraph I:
(a)

Is not manifestly unfounded;

(b)

.Does not constitute an abuse of the right ofsubmission of such requests;

(c)

Has already been duly presented to the competent bodies of the State Party concerned,

such as investigative authorities, when this possibility exists;
(d)

Is not incompatible with the prov\sions ofthis Convention; and

(e)

The same matter is not

b~ing

examined under another procedure of international

investigation or settlement ofthe same nature;
it shall request the State Party concerned to provide it with information on the situation of the
pers~n concerned,

3.

within a time limit set by the Committee.

In the light of the information provided by the State Party concerned in accordance with

paragraph 2, the Committee may transmit recommendations to the State Party including a
request that the State Party take all appropriate measures, including interim measures, to locate
)

.

and protect the person in accordance with this Convention and inform the Committee within a
specified period of time, of measures taken. taking into account the urgency of the situation. The
Committee shall inform the person submitting the urgent

actio~

request of its recommendations

and of the information provided to it by the State as it becomes available.

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4.

The Committee shall continue its efforts to work with the Slate Party concerned for as

long as the fate of the person sought remains unresolved. The person presenting the request shall
be kept infonned.

Article 31
1.

A State Party may at the time of ratification or at any time afterwards declare that it

recognises the competence of the Committee to receive and consider communications from or on
behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State
Party of the provisions of this Convention. No communication shall be received by the
Committee if it concerns a State Party which has not made such a declaration.
2.

The Committee shall consider a communication inadmissible when:

(a)

The communication is anonymous;

(b)

The communication constitutes an abuse of the right of submission of such

communications or is incompatible with the provisions ofthis Convention;
(c)

The same matter is being examined under another procedure of international

investigation or settlement; or when
(d)

All effective available domestic remedies have, not been exhausted. This rule shall not

apply where the application of the remedies is unreasonably prolonged.
3.

If the Committee considers that the communication meets the requirements set out in

paragraph 2, it shall transmit the communication to the State Party concerned, requesting it to
provide observations and comments within a time limit set by the Committee
4.

At any time after the receipt of a communication and before a detennination on the merits

has been reached, the Committee may transmit to the State Party concerned for its urgent
consideration a request that the State Party take such interim measures as may be necessary to
avoid possible irreparable damage to the victim or victims of the alleged violation. Where the
Committee exercises its discretion, this does not imply a determination on admissibility or on the
merits of the communication.
S.

The Committee shall hold closed meetings when examining communications under the

present article. It shall inform the author of the communication of the responses provided by the
State Party concerned. When the Committee decides to terminate the procedure it shall
communicate its views to the State Party and to the author of the communication.

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1.

If the Committee receives reliable information indicating grave violations by a State

Party of this Convention, it may, after consultation with the State Party concerned, request one
or more of its members to undertake a visit and report back to it without delay.
2.

The Committee shall notify the State Party concerned in writing of its intention to

organise a visit, indicating the composition of the delegation and the purpose of the visit. The
State Party shall answer the Committee within a reasonable time.
3.

Upon a substantiated request by the State Party, the Committee may decide to postpone

or cancel its visit.
4.

If the State Party agrees to the visit, the Committee and the State Party concerned shall

work together to define the modalities 'of the. visit and the State Party shall .provide the
Committee with all the facilities needed for the successful completion of the visit.
5.

Following its visit, the Committee shall communicate to the State Party concerned

~ts

observations and recommendations.

Article 33
A State Party to this Convention may at any time declare that it recognises the
competence of the Committee to receive and consider communications to tbe effect that a State
Party claims that another State Party is not fulfilling its obligations under this Convention. The
Committee shall not receive communications concerning a State Party which has not made such
a declaration, nor communications from a State party which has not made such a declaration.

Article 34
If the Committee receives information which appears to it to contain well-founded
indications that enforced disappearance is being practised on a widespread or systematic basis in
the territory under the jurisdiction of a State Party, it may, after seeking from the State Party
concerned all relevant information on the situation, urgently bring the matter to the attention of
the General Assembly of the United Nations, through the Secretary General of the United
Nations.

Article 35

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I.

The Committee shall have competence solely in respect of enforced disappearances

which commenced after the entry into force of this Convention.
2.

If a State becomes a party to this Convention after its entry into force, the obligations of

that State vis-a-vis the Committee shall relate only to enforced disappearances which
commenced after the entry into force of this Convention for the State concerned.

Article 36
I.

The Committee shall submit an annual report on its activities under this Convention to

the States Parties and to the General Assembly of the United Nations.

2.

Before an observation on a State Party is published in the annual report, the State Party

concerned shall be informed in advance and shall be given reasonable time to answer. This State
Party may request the publication of its comments or observations in the report.
Article 37
Nothing in this Convention shalJ affect any provisions which are more conducive to the
protection of all persons from enforced disappearance and which may be contained in :
a) the law ofa State Party;
b) International law in force for that State.
Article 38
1.

This Convention is open for signature by all Member States of the United Nations

Organisation.
2.

This Convention is subject to ratification by all Member States of the United Nations

Organisation. Instruments of ratification sh;:II1 be deposited with the Secretary-General of the
United Nations.
3.

This Convention is open to accession by all Member States of the United Nations

Organisation. Accession shall be effected by the deposit of an instrUment of accession with the
Secretary-General of the United Nations.

Article 39

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1.

This Convention shall enter into force on the thirtieth day after the date of deposit of the

twentieth instrument of ratification or accession.
2.

For each State ratifying this Convention or acceding to it after the deposit ofthe twentieth

instrument of ratification or accession, this Convention shall enter into force on the thirtieth day
after the date ofthe deposit of its own instrument of ratification or accession.
Article 40

The Secretary-General of the United Nations shall inform all States Members of the
United Nations and all States which have signed this Convention or acceded to it of the
following:
. (a)
(b)

Signatures, ratifications and accessions under article 38;
The date of entry into force of this Convention under article 39.

Article 41

The provisions of this Convention shall extend to all parts of federal States 'without any
limitations or exceptions.
Article 42
1.

Any dispute between two or more States Parties concerning the interpretation or

application of this Convention which cannot be settled through negotiation or by the procedures
expressly provided for in this Convention shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for arbitration the Parties are unable
to agree on the organisation of the arbitration, anyone of those Parties may refer the dispute to
the International Court ofJustice by r~uest in confonnity with the Statute of the Court.
2.

Each State may, at the time of signature or ratification of this Convention or accession

thereto, declare that it does not consider itself bound by paragraph 1 of this article. The other
States Parties shall not be bound by paragraph I of this article with respect to any State Party
having made such a declaration.
3.

Any State Party having m~de a declaration in accordance with paragraph 2 of this article

may at any time withdraw this declaration by notification to the Secretary-General of the United
Nations.

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21 -

Article 43
This Convention is without prejudice to the provisions of international humanitarian law,
including the obligations of the High Contracting Parties to the four Geneva Conventions
of 12 August 1949 and the additional protocols thereto of 8 June 1917, or to the opportunity
available to any State Party to authorize the International Committee of the Red Cross to visit
places of detention in situations not covered by international humanitarian law.
Article 44
1.

Any State Party to this Convention may propose an amendment and file it with the

Secretary-General

of the

United

Nations.

The

Secretary-General

shall

thereupon

communicate the proposed amendment to the States Parties to this Convention with a
request that they indicate whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposal. In the event that within four months from the date
of such communication at least one third of the States Parties favour such a conference, the
Secretary-General shall convene the conference under the auspices ofthe United Nations.

2.

Any amendment adopted by a majority of two thirds of the States Parties present and

voting at the conference shall be submitted by the Secretary-General to all the States Parties for
acceptance.

3.

An amendment adopted in accordance with paragraph 1 of this article shall enter into

force when two thirds of the States Parties to this Convention have accepted it in accordance·
with their respective constitutional processes.
4.

When amendments enter into foree, they shall be binding on those States Parties which

have accepted them, other States Parties still being bound by the provisions of this Convention
and any earlier amendment which they have accepted.
Article 4S
I.

This Convention, of which the Arabic, Chinese, English. French, Russian and Spanish

texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
2.

The Secretary-General of the United Nations shall transmit certified copies of this

Convention to all States.

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Forced Disappearances Treaty Negotiations September 2005
Guidance for Closing Statement of the United States

6S56:

~

As the work ofthe Working Group draws to a close, we express appreciation
to the Chair and his team, inCluding the Secretariat, for your enormous
dedication, skill, and industriousness during negotiations on a binding
instrument to combat this heinous crime.

~

We also commend the State delegations,Jhe independent experts, the JCRe,
and non-governmental organizations for their commitment, expertise,
tireless work, and collegiality throughout, and give special thanks to the
families of the disappeared for bearing witness to this terrible scourge.

~

At the same time, as we have said before, in order to produce a document
that reflects consensus, treaty negotiations should be deliberate, unhurried,
and careful, allowing for full expression of views by all representatives.

~

All negotiations should additionally be inclusive, allowing full attendance by
all delegation members, and transparent, based on a clear draft treaty text
which takes account of opposing views.

~

Deliberate, participatory and transparent negotiating processes are far more
likely to result in a carefully drafted and fUlly vetted document that
represents consensus.

»

We regret that the pace of negotiations, among other"factors, has resulted in
a document that does not reflect consensus of the Working Group.

~

Key issues remain disputed, and the United States, for example, continues to
have reservations regarding a number of articles or sub-articles including:

o RIGHT TO THE TRUTH - Preamble paragraph 7 and Article 24(2)
o DEFINITION - Article 2
o CRIMINALIZATION - Article 4
o CRIME AGAINST HUMANITY - Article 5
o LACK OF DEFENSE OF SUPERIOR ORDERS - Article 6(2)
o STATUTE OF LIMITATIONS - Article 8
o "FOUND IN" JURISDICTION - Article 9(2)

»

o

NON-REFOULEMENT· Article 16(2) & (3)

o

ACCESS TO PLACES OF DETENTION - Article 17, including 17(2)
(e) and

o

NEW TREATY MONITORY BODY· Article 26 .

We now look to the work that lies ahead, as states consider proposals before
UN bodies for adoption of the instrument for adoption by member states.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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West, Lora
From:
Sent:

To:
SUbject:
Attachments:

Gale, T Hanny
Wednesday, June 21, 2006 11 :53 AM
Aswad, Evelyn M; Barton. Paula J; Bentes, Julianna W; Brancato, Gilda M; Gaffney, Francis
M;'Gheibl. Shahnaz; Harris, Robert K; Kovar, Jeffrey D
Draft Int'l ConY for the Protection of All Persons from ED.pdf
Draft Int'l Cony for the Protection of AU Persons from ED.pdf

I'

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClnE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

uNCLASSIFIED
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,I

j

"

GEWA-

RELEASED IN FULL ,UNCLASSIFIED

INTERNATIONAL COMMISSION OF JURISTS
Commtasion internationale de juriste8 - Co~i6n Intemacional de Juristas

'

Gene,,&., 19 June 2006
S.B. M. Kevin B. MOLEY
Minion per.maDento ~ E'taa.Unis d'.A.m*iqu~
IW~ Lk: .·OMce!2eSNations Untes a Geneve
Route de ~py 11
1292

Cbl!mM~

tax : P22 '4948 80

Your BxceUency,

The International Conuni.sion ofJUriats, AFAD. F'BDBFAM, HOM, Human Rights Watch. the
IntematiODal Federation ofHuman Rights and the Inmmatloul Service for Human Rights have
tlur pleasure to invite you to a conference on the draft Int~rnational Convention for the
Protection ofAllPersonsfrom 4'nforcedDigapp~tD'a1JcethatwI11 take place on Prlday. 23 June
from 13:00 to 15:00, Room vm ill Pdais dea Nations.
This event mostly seeks to promote the prompt adoption of this important legal tool. Amonast
others, associations ofvictims* relaUves and ambassadora ofcoumrles that have played a major
role in this process will speak. For more details, please see the attached programme.
.

Please accept the assurances ofmy highest consideration..

Fedtlico ADdreu...(Juzmm
Deputy Secretary-General

for legal aftatra

.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ill: 22 JUN 2009 200706444

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.

Asfan Federation Against Involuntary DisappearancQ (AFAD)
Latln..Amerlcan Fed_ratJon of ~OGl8tlon of Relatives of Disappeared

DetaInees (FEDEFAM)

Humanist Committee on Human Rights (HOM)
Human Rights Watch
International CommIssion of Jurists (ICJ)
'ntematlonal Federation of Human Rights (FIDH)
International Service for Human Rights (ISHR)

Have the pleasure to inviteyou to ameeting on
THE DRAFT INTERNATIONAL CONVENnON
FOR THE PROTECTlON OF ALL PERSONS
AGAINST ENFORCED DISAPPERANCES
A Crucial Tool To Fight Against IfnftJrcedDIlf.ppellrance

on Friday»" ofJune from 13:00 to 15:00
Room

..

vm. Palm des Natinnll

The draft Convention against Enforced Disappearance is presently before the Human
Rights Council for consideration. This meeting will discuss the draft document and its
implicatiDns for the fight against this egregious violation ofhuman rights. The mettlDa
also seekS to promote the a4opti01l ofthe Convention by the Human lUgbts Council at its
first sealon,
An open letter, sisncO by eminent persons and organisations from '11 around the world
will be presented to the Cbailpmon of the Human Rights Council, H.B. Mr. Luis .
Alfonso de Alb.. ambassador ofMexico,
.

Speakers include;

H.E. Mr, Jean-Maurice R.ipert. AmbassadorofPraace
H,E. Mr. Alberto J, Dumont.) Ambassador ofArgentina
HE. Mr. Juan Antonio March, Ambassador ofSpain
HoB. Mr. Juan. Manabt; Ambassador ofChile
Mrs, X6cbitl Chlvez, Commission for the development ofindigenous peoples, MAXico
Mo. Mary Aileen D. BacaJsOp AFAD
Mrs. Marta Ocampo de Vqqu.czt FEDEFAM
Mode7'01bt': Federico

AndrSll-Guzm8n. International Commission ofJurists
Sandwiches and

SIl1IlIhtl1J'DUI interpretation
.UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN.2009 200706444

rt:/rc.rhmenf~

will be provided

,

will be available in SpQ1ltfh. ~h and Eng,i8h

UNCLASSIFIED
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West, Lora
From:
Sent:

To:
Subject:

Gale, T Hanny
Monday, March 20,200611:51 AM
Williams, Kendi; Aswad, Evelyn M (Washington); Barton, Paula J; Bentes, Julianna W;
Brancato, Gilda M; Gaffney, Francis M; Gheibi, Shahnaz; Harris, Robert K; Kovar, Jeffrey D;
Prosser, Sarah E; Schou, Nina E
17 March 2006 - Ltr from Human Rights Watch asking support - Enforced
Disappearances.pdf

l7 March 2006 - Ltr

from Human...

KendI,
As mentioned on the phone, attached is a letter from the Human Rights Watch asking US
support in favour of a resolution by which the 62nd session of the Commission adopt the Draft
Int'l Convention for the Protection of All Persons from Enforced Disappearances.
Hanny

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClnE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

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West. Lora

Gale, T Hanny
Tuesday, October 04,20054:42 PM
Brancato, Gilda M
Kovar. Jeffrey D; Sarton. Paula J
Enforced Disappearances document - 2nd e-mail

From:
Sent:
To:

Cc:
Subject:

Oops,
Please disregard previous e-mail. Attached are all three documents.

-m

~

~

23 September 200523 September 2005 ~3 September :2005
- E.CN.4-200...
• General St...
• list of Pa...

T. Hanny Gale
Office of Legal Affairs

U.S. Mission Geneva
Tel: [41](0)22-749-4460
Fax: [41J(0)22-749-4343
E-mail: GaleTH@state.gov
HA Monc/ is somoone wllo {(nows the song in yOlJrhemt
/JI1d (;(111 sin~l if hack to you wlmn YO/1 fuwfJ fOlgoileli til!: worets... •,
"e'f-isl /)i(~" ugffi:'il>/ri d'{!tru imp0rl/ml, nmis c'est plus importcml d'i:~/re t.lgl'(~abte"

TIlls c-miill in unclassified per E.O. 12958

UNITED STATES DEPARTMENT OF STATE

REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

uNCLASSIFIED
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RELEASED IN FULL

West. Lora

SUbject:

Gale, T Hanny
Friday, September 16,20053:42 PM
Kovar, Jeffrey 0; Brancato, Gilda M; Barton, Paula J
Gilda's Papers on Enforced Disappearances - 15 September 2005

Importance:

High

From:
Sent:

To:

Gilda Brancato'
forced dlsapp,..

Gilda Brancato •
fRED UNE for..,

T. Hanny Gale

Office of Legal Affairs
U.S. Mission Geneva
Tel: [41](0)22-749-4460
Fax: [41](0)22-749-4343
E-mail: GaleTIi@state.gov
"A rricmd is somf.'ono w!l<> knows /ho song in yOllrfwarf
CI1Id call sing it !Jack /0 you wllcm you have {orgotten the words... ..
"C'ast t)icm agreab/e d'olm impoII<lIlI, omi:; c'ost plus Important d'olro agreeb/en
Thist....mail in Ul1da~5ificd per E.O. 1295!1

.

UNITED STATES DEPARTMENT OF STATE
REviEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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West, lora

Harris, Robert K
Friday, August 18, 20062:38 PM
Hill, Steven R
Noyes, Julieta V (DRL); Sicade, Lynn M (DRL); Rohn, Douglas C; Johnson, Thomas A; Kovar,
Jeffrey D
.
FW: Working Group on Enforced or Involuntary Disappearances

From:

Sent:
To:
Cc:
SUbject:

Sieve,
When things settle down, can you keep an eye on this account?
Julieta and Doug,
Could you each designate an officer who can work with Steve on this? Thanks.
Bob
Ftom:

Sent:
To:

SUbject:

Mendez KleI, Pilula(Geneva)
Friday, August 18, 2006 6:59 AM
ID-RHS; DRL-I'1LA-Dl; Legal-L-HRR
Wor1clng Group on Enforced or Involuntary Disappearances

~
~

08.18.06 WG on
Enforced Olsapp...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

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UNITED NATIONS

NATIONS UNIES
HAUT COMMISSARIAT DES NATIONS UNIES
AUXDROITSDEL'HOMME

OFFICEOFTHE UNITED NATIONS
HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES ASSUMEES PAR
LECONSEIL DESDROITSDEVHOMME

SPECIAL PROCEDURES ASSUMED BY THE
HUMAN RlGHTSCOUNCIL

Chairman ofthe Working Group on Enforced or Involuntary Disappearances

n~fax: (41·22)-917 9006
Telegramn1CS:UNATIQNS. GgNEVE
Telex: 41 2962
Tclc;phone; (41.22)- 917 9176
Internel: h!tD:1!www ohl;hr.orgfeog!lsh!lssuesldjsappearlindex.hIn)
E-mail: wgeid@ohthr.orll

Address:
Palais des Notions
CH·1211 GENEVE 10

REFERENCE: GISO 117/1l1SA

10 August 2006

Excellency,

At the request and on behalf ofthe Chainnan ofthe Working Group on Enforced or
Involuntary Disappearances, I have the honour to communicate the following letter addressed to you:
"Excellency,
I have the honour to write to you on behalfofthe Working Group on Enforced or Involuntary
Disappearances, which held its seventy-ninth session from 24 to 28 July 2006, at the United Nations
Office in Geneva.

In the course ofthe session, the Working Group decided to infonn your Government of
general allegations it has received in relation to the implementation ofthe Declaration on the
Protection ofAll Persons from Enforced Disappearances in your country. A summary is attached: Any
comments regarding these general allegations should be received by the date given in the next
paragraph in order to be included in the Working Group's annual report.
I would like to take this opportunity to remind your Government that the Working Group wiU
hold its eightieth session at the United Nations Office at Geneva from 20 November to I December
2006. As such, the Working Group would be grateful if any written infonnation which your
Government wishes to submit for the Working Group's consideration, could be received by 2 October
2006. Infomfation may be submitted at any time ofthe year, and will be reviewed as soon as it can be
processed.
../ ...

RE. Mr. Warren W. Tichenor
Ambassador
Pennanent Mission ofthe United States ofAmerica
to the United Nations Office at Geneva
Route de Pregny 11
1292 Chambesy
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CA~E In: 22 JUN 2009 200706444

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'.

In conformity with its usual practice, the Working Group is prepared to receive representatives
ofinterested Governments during the first three days Dfits next session, from 20 to 22 November
2006. Should your Government wish to be represented at the forthcoming session, please contact the
Working Group's secretariat at the United Nations Office ofthe High Commissioner for Human
Rights in Geneva (tel: 022 917 9176, fax: 022 9179006) to schedule an appointment with the
Working Group. The dates ofsubsequent sessions for the coming year may also be requested or
found on the WGEID webpage: http://www.ohchr.orglenglisblissues/disappear.

I remain,
Excellency,

Yours sincerely,
Santiago Corcuera
Chairman-Rapporteur
Working Group on Enforced
or Involuntary Disappearances"

I remain,
Excellency.

Yours sincerely,

rj;<t-st:--

Tanya Smith
Secretary
Working Group on Enforced
or Involuntary Disappearances

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12/06/06
Draft

International Convention
Disappearances

on

the

Protection of all

Persons

from

Enforced

The Human Rights Council
.PP I : Recalling General Assembly resolution 47/133 of 18 December 1992. by which the
Assembly adopted the Declaration' on the Protection of all Persons against Enforced
Disappearances as a body of principles for all States,
PP 2 : Recalling CHR resolution 2001146 establishing an intersessional open ended working
group to elaborate a draft legally binding instrument for the protection of all persons against
enforced disappearances, and its resolution 2005/27.
PP 3 : Taking note of the report E/CN.412006/57 of the intersessional open ended working
group to elaborate a draft legally binding instrument for the protection of all persons against
enforced disappearances and the decision of the working group to conclude its work and to
transmit the draft International Convention on the Protection of all Persons against Enforced
Disappearances to the Commission on Human Rights for adoption,
PP 4 : Welcoming the proposal of France to host the signing ceremony of the International
Convention on the Protection of all Persons against Enforced Disappearances in Paris
(France),
OP 1 : Adopts the text of the International Convention on the Protection of aU Persons against
Enforced Disappearances as contained in the annex to the present resolution,
OP 2 : Recommends the International Convention on the Protection of all Persons against
Enforced Disappearances to the General Assembly for final adoption at its 61rst session,
OP 3 : Recommends that the International Convention on the Protection of all Persons against
Enforced Disappearances, following its adoption by the General Assembly, be open for
signature at a signing ceremony to be held in Paris (France).

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444 .

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(Unofficial translation)

RELEASED IN FULL

Russian Federation Statement on International Convention for the protection of all
persons from enforced disappearances
Mr. Chairman,
It is difficult to overvalue the importance of this problem covered by the International
Convention for the Protection of All Persons from Enforced Disappearances. It is even
more obvious when we learn about similar crimes, including hostage taking or other
terrorist acts, taking place literally every day. The la~est sad case is the kidnapping and
then cold-blooded murder of four workers of the Russian Federation Embassy in Iraq.
We consider that kidnapping is a gross violation of human rights and is a direct violation
of all fonns of individual protection and cannot be justified under any circumstances. In
this regard, the Russian Federation is convinced that the Human Rights Council should
pay attention to the struggle against hostage taking with same degree of attention given to
it by the fonner Commission on Human Rights. We consider that the Council, like the
General AsseIJ'1.bly and the Commission on Human Rights, should confirm that every
person has an inalienable right to protection from terrorism.
Mr. Chainnan,
The Russian Federation expresses gratitucieto France for its efforts and contributions in
the development of the International Convention for the Protection of All Persons from
Enforced Disappearances. We are convinced that the adoption of this document will
encourage the strengthening of an international regime for the protection of human rights
and freedoms, the eradication of similar crimes, and also will contriBute to the global
effort in the struggle against terrorism.
We express special satisfaction with the inclusion of the Convention's articles
contributing to the further progressive development of the concept ofhuman rights. In
particular, it is especially important to us that articles of the [Convention] include the
possibility of assigning responsibility for the violation of this right - the right to
protection from enforced disappearances - to the so-caned "non-State actors:' As is
known, a significant part of enforced or involuntary disappearances, including
kidnappings, are committed by terrorists or terrorist groups, illegal armed formations, and
others. In this connection, the Russian Federation welcomes the development of new
rights-defending standards that take into account contemporary realities oftoday's world.
It is hoped that adoption of this important document will encourage a change in position
ofthose who, up to this point, maintain that human rights can only be broken exclusively
by official states or their official representatives and reject the possibility of assigning
appropriate responsibility to non-State actors.
Thank you, Mr. Chairman.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUI'HORITY: ARCHIE M BOLSTER
DATE/CASE ID: 24 JUN 2009 200706444

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West, Lora
From:
Sent:

To:
Cc:
Subject:

GE13A

Barton, Paula J
Friday, July 07,200611:52 AM

Brancato, Gilda M
Kovar, Jeffrey D; Levin, Jan; Gale, T Hanny
FW: Enforced Disappearance final statement (Canada)

Gilda,
Below is the EOP delivered by Canada at the time of adoption. I'll send the UK statement separately.
Paula
Canada
Statement in Explanation of Position upon adoption of the International Convention for the Protection of All Persons against Enforced
Disappearances by the UN Human Rights Council
Mr. President,
Canada has long been committed to combatting enforced disappearance. Canada helped to establish the Working Group on Enforced
and Involuntary Disappearances, and supported the adoption ofthe UN Declaration on the Protection of All Persons from Enforced
Disappearance.
Canada actively participated in the negotiation oftbe new Convention with the objectives of clearly prohibiting enforced
disappearances, combatting impunity for such acts, and providing effective protection from this grave human rights violation, which
continues to be perpetrated around the world. Canada is pleased to support the adoption of this Convention.
That we succeeded is in large part due to the dedication of the chair, the support of many States where this abhorrent practice was
once widespread, and the resolve ofmany civil society activists, including victims.
While our preference would have been to allocate effective monitoring functions to the Human Rights Committee, as being best
placed to provide a comprehensive remedy to victims, Canada joined consensus on the creation ofa new body, and contributed to its
strengthening. The Convention provides for a future review ofthe monitoring mechanism, to ensure consistency with efforts to
strengthen the human rights treaty body system.
Canada requests that the following statements of understanding be placed on the official record of this meeting;
• The definition in article 2 and all references to crimes or offences in this Convention must be interpreted in light of the element of
criminal intent required under domestic law for any criminal offence.
• Articles 5 and 6 must be interpreted consistent with intemationallaw, inclUding the Rome Statute of the International Criminal
Court.
· The provision in article 7 allowing for the consideration of mitigating circumstances in sentencing cannot be interpreted in any
manner that would result in an effective amnesty which would allow impunity for violators, who must be punished with appropriate
penalties taking into account the gravity of the offence.
• Article 8 on statutes of limitations must be interpreted as being subject to international law. This provision should never be allowed
to operate so as to condone impunity for perpetrators. Further, no statutes of limitations are permitted under international law for any
enforced disappearance which constitutes a crime against humanity.
• Anicle 12, paragraph 3 must be interpreted as permitting States to ensure access by investigating authorities to relevant
documentation and other infonnation which are not in the control of the Slate on the basis of prior authorization of a judicial authority,
where necessary.
UNITED STATES DEPARTMENT OF STATE
1
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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- The provisions in article 24 relating to reparation must be interpreted in a manner consistent with international law, including the law
of sovereign immunity.
Canada will consider whether to become a party to the new Convention following its adoption by the General Assembly. Canadian
law already provides effective protection from the essential elements of enforced disappearance, including the criminalization of
enforced disappearance at the level ofa crime against humanity.
It is OUt hope that this new Convention wiII provide additional protection from enforced disappearance and contribute to ending
impunity for this grave human rights violation.
.
Thank you Mr. President.

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West, Lora
From:

Sent:
To:

Subject:

Brancato, Gilda M [BrancatoGM@state.gov]
Wednesday, June 21,20066:32 PM
Kovar, Jeffrey 0; Padmanabhan, Vijay M; Witten, Samuel M; Lagon, Mark P; Barks-Ruggles,
Erica J (DRL)
FW: Enforced Disappearnces informals

FYI.

Cc:

levin, Jan(Geneva)
Wednesday, June 21, 2006 12:30 PM
legal·l-HRR
to-RHS users; DRl-MLA-DL; DePlrro, Vella M; Barton, Paula J; levin,

Subject:

Enforced Dlsappeamces infurmals

From:

sent:

To:

J~ln

Please find attached below the new draft resolution from France on Enforced Disappearances. During this morning's
informals, there were no strong objections to the Convention expressed. India noted it would /lave preferred an optional
protocol to the ICCPR, but participated constructively in negotiations and still has concerns. No suggestion that they
would call for a vote.
Those who announced as co-sponsors were: Chile, Argentina, SWitzerland, Spain, Hungary, Ireland, and Estonia.
Those who support: Morocco, Austria. Russia, New Zealand (announced would support during GA when it can
participate), Brazjl, Canada, Azerbaijan, Mexico, Ukraine and Japan.
France noted it would table the resolution promptly so that it can be translated and distributed, and cosponsors would
have time to prepare interpretive statements to be delivered at the time of adoption of the text.

06.12.06 Draft In'tl
conventlo...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 24 JUL 2009 200706444

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West, Lora
From:
Sent:

To:

Cc:
SUbject:
Attachments:

Brancato, Gilda MThursday, June 15, 20066:53 PM
.
Witten, Samuel M; Lagon, Mark P; Johnson. Thomas A; Kovar, Jeffrey D; Levin, Jan; Harris,
Robert K; Padmanabhan, Vijay M; Sicade, Lynn M (DRL); Bellinger, John B(legal); Bettauer.
Ronald J
Rohn. Douglas C; DePirro, Velia M; Barton, Paula J; Noyes. Julieta V (DRL); Legal-L-HRR;
Hata, Marianne J; Propp, Kenneth R; Manning, Denise; Dorosin, Joshua L
RE: (SBU) Info· memo to U Draft Disappearances Convention
LEGAL-#26632-v1-Forced_Disappearances_Update_to_JBB.DOC; LEGAL-#18367-v1Disappearances_treaty_USG_FinaLSTatement.DOC

Sensitive But Unclassified - John • attached for your information is an update on the
proposed Forced Disappearances Convention. Also attached FYI is our Closing Statement
delivered at the conclusion of negotiations on the treaty in 2eeS.
Please let us know if you have any comments or questions.
Marianne - could you ensure that this memorandum gets to John.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

Thank youl

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West, Lora
From:
Sent:
To:
Cc:
Subject:

Brancato, Gilda M
Monday, April 03, 2006 9:35 PM
Kovar, Jeffrey 0; Barton, Paula J; DePirro, Velia M; Levin, Jan
Legal-L-HRR; Johnson. Thomas A; Hammond, Sylvia L; Noyes, JUlieta V (DRL); Sicade, lynn
M (DRL); Deeks, Ashley S
.
LEGAL-#23727-v1-reply_to_NGOs_on_forced_disappearances_treaty. DOC

LEGAL-#23727-vl-r
eply_to_NGOs_...

Jeff/Paula! Velia/Jan - as we discussed, attached is a reply for Mission Geneva, to which our Closing
Statement on the proposed Disappearances Convention delivered in Sepfember 2005 should be attached.
Thank you, Gilda

~TEDSTATESDEPARTMENTOFSTATE

REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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West, Lora
From:
Sent:
To:
Subject:

Kovar, Jeffrey D
Monday, July 24,20064:05 PM
DePirro, Velia M
RE: Disappearances Binder--Foreign Govemment Statements on Convention

Velia _. , asked Paula to work with Patrick to do this. - Jeff

From:
sent:
To:

ee:
Subject:

AsNad, Evelyn M [mallto:AswadEM@state.gov]
Friday, July 21, 2006 6:53 PM
.
AsNad, Evelyn M; Johnson, Thomas A
Kovar, Jeffrey Di DePlrro, Velia M; Levin, Jan; Smeller, Patrick; Barton, Paula j
RE: Disappearances Blnder-·Forelgn Government Statements on Convention

Jeff & Velia - please let us know if you are able to get translations or key points from the Geneva missions for China and
Russia. Many thanks! Evelyn
From: Aswad, Evelyn M
sent: Thursday, july 20,20065:32 PM
To: Johnson, Thomas A
Cc: lO-RHS; Kovar, Jeffrey D; DePlrro, Velia M; levin, Jan; Smeller, Patrick; Barton, Paula J
Subject: RE: Disappearances Binder--Foreign Government Statements on Convention

OK - Thanks for looking into this. Evelyn
From: Johnson, Thomas A(Main State Rm 5336)
sent: Thursday, July 20, 2006 4:08 PM
To: Aswad, Evelyn M
Cc: IO-RHS; Kovar, Jeffrey OJ DePirro, Vella M; Levin, Jan; Smeller, Patrick; Barton, Paula J
Subject: Disappearances Blnder--Forelgn Government Statements on Convention

EvelynThere are about 6 Spanish documents that Molly can translate, and 5 in French that Rebecca will translate. But we are
being quoted $120 for translation of the Chinese document, and probably about the same for the Russian document.
Money is scarce. let's just live with Geneva (Jeff or others) trying to get an English translation from their Chinese and
Russian counterparts. or at least the key points in each statement that are of interest to us.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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Peay, T Michael
From:

Sent:
To:
Cc:

Subject:

I

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Brancalo, Gilda M
Friday, January 09, 20044:24 PM
Peay, T Michael(Geneva)
Harris, Robert K; Gale, Teresa H(Geneva); Manning, Denise
INSTRUCTIONS TO THE UNITED STATES DELEGATION TO THE UNCHR WORKING
GROUP SESESION ON FORC~D DSIAPPEARANCES:

The allached draft, which I need to review and proofread, contains comments of DOJ/OIA, DOD/GC and lIPM. Will

~
incorporate comments of UL~I in Geneva. See you Monday! Best, Gilda recei

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ill: 23 JUN 2009 200706444

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COMPILATION DE PROPOSITIONS - 14/12/04

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Preambule
Les Etats parties [au present instrument],

Considirant que la Charte des Nations Unies impose aux Etats I'obligation de
promouvoir Ie respect universel et effectif des droits et des libertes fondamentales de
l'Homme,
Se relerant a la Declaration universelle des droits de I'Homme,
Rappelant Ie Pacte sur les Droits economiques, sociaux et culturels, Ie Pacte sur Ies
Droits civils et politiques et les autres instruments internationaux pertinents dans Ie
domaine des Droits de I'homme, du Droit humanitaire et du Droit penal international,
Rappelant la Declaration sur la protection de toutes les personnes contre les disparitions
forcees adoptee par I' Assemblee generale des Nations Unies dans sa resolution 47/133
du 18 decembre 1992,
J

Conscients de I'extreme gravit6 de la disparition forcee qui constitue un crime et,
dans certaines circonstanccs definies par Ie droit international, un crime contre l'humanite,
\

Determines it prevenir les disparitions forcees et a lutter contre l'impunite du crime de
disparition forcee,
Affirmant Ie droit de toute personne de ne pas etre soumise aune disparition forcee et
ie droit des victimes de savoir la verite sur les circonstances d'une disparition forcee et Ie sort de
la personne disparue,
Sont convenus de ce qui suit:

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 23 JlJN 2009 200706444

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Article 1 his

I.

Nul ne sera soumis 11 une disparition forcee.

2.

Aucune circonstance cxceptionneJle, quelJe qu'elte soit, qu'il s'agisse de I'etat de guerre
ou de menace de guerre. d'instabiJite politique interieure ou de tout autre etat
d'exception, ne pent etre invoquee pour justifier la disparition forc6e.

2

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Article 3
Tout Etat partie prend les mesures necessaires pour tenir penalement responsables : ~
pl.Jur:iui "'Fe et pllnir '"cux qui 00mrnetlelll 00 COIICtlllrent 1\ eonlllleHre lITie dispiiritiol) forect!.
a) ceux qui commettent, commanditent, tentent de commettre une disparition forcee,
y participent ou en sont complices•.

I. SORt fll:lflis :
a)

Les ftutetifS a'HAe aisperition fureee et camE qui s'efl fenaent compUses ;

b)

La teRtati'Je de disparitiofl Foreee ;

.c)

L' eflteftte eft vue ae eommettre \:IRe

dis~afitiofl

fureee.

2. Sont egalemeflt ~ufli5 :
CaHE ~'l:1i OraOf'lRent 0\:1 eftcouragent la eommissiofl au Ie tentatjJ,'e d'uRc teUe
infraction, eeux EJui en faeilitent Ie commission 00 Ie tentative en apportftflt lear aide, leur
eOReOOFB 0\;1 tout autre feffRe a'assistance, y eompris eA fearnissant les moyeRs de cette
eOfRfflission ou de cotte teAtative ;
.
e)

Le superieur qui:

b)
i)

Savait que des subordonnes places sons son autorire et son controte effectifs,
commettaient ou allaient commettre une disparition forcee ou a d6lib6rement
neglige de tenir compte d'informations qui J'indiquaient clairerrient; et qui

ii)

N'a pas pris tautes les mesures necessaires et raisonnables qui etaient en son
pouvoir pour empecher au faire eeS:ier . reprimer nne disparition forcee, eli
POlif en reprimer I't!x:tbel:llion ou pour en referer aux autorites competentes aux
fins d'enquete et de poursuites.

2.
Aneuo ordre ou instruction emanaot d'une autorite publique, civile, militalre
ou autre, ne peut etre invoque pour justifier une disparition forcee.

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Article 4
I.

Tout Etat partie rend Ie crime de disparition forcee passible de peines appropriees qui
en compte son extreme gravite. '

pre~nent

2.

Tout Etat pmtie pellt prevoir:

a) Des circoostances atteouuntes, notammcnt en faveur de ceux qui, impliques dans
1a commission d'une disparition forcee, auront contribue efficacement a la recuperation en
vie de la personne disparue au allront permis d'elucider des cas de disparitions forcees Oll.
d'identifier les auteurs d'une disparition forcee;
b) Sans prejudice d'autres procedures penales, des circonstances aggravantes, notamment en
cas de d6ces de )a victime au envel'S ceux qui se soot rendus coupables d'une disparition
forcee a l'encontre de femmes enceinfes, de mineurs au d'uutres personnes pal'ticuIR:rement
vulnerabJes.

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Article 9
1.
TOllt Btat partie prend les mesures necessaires pour etablir sa competence aux fins de
connattre d'lln crime de disparition forcee:
a) Quand I'infraction a ete commise sur tout terri to ire sous sa juridiction ou a bord d'liA Revire
batteRt seA fla\'illel'l eu d'Hft aeronefs ou de navires immatricules conform6ment Ii sa
l<~gislfltioft au momel'll des faits dans eet Etat ;
b) Quand I'auteur presume de I'infraction est I'un de ses ressortissants, eli
!Ifletride residei'll habimellement sar SOH territoire ;.

UfiC

persoflfle

c) Quand la personne disparue est I'un de ses ressortissants et Efue eet Qat partie Ie j\:lge
llflflroflfie .

2.
Tout Etat partie prend egalement les mesures necessaires pour etablir sa competence aux
fins de connmtre d'un crime de disparition forcee quand "auteur presume de I'infraction se
trouve sur tout territoire relevant de sajuridiction, sauf s'i1I'extrade ou Ie remet a un autre Btat
eonformement a ses obligations intemationales, ou ~'i1 Ie remet a une juridiction penale
intemationale dont il a reconnu la competence.

3.
[Le present il1strument] n'ecarte aucune competence perale
confonnement aux lois nationales.

supph~mentaire

exercee

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Article 23
I.

Tout Etat partie prcnd Ies mesures necessaires pour prevcnir et reprimer peflalement:

a)
L'eRle'lement ea I'appropriation d'enfants soumis a une disparition forcee
'1ietimes de E1is13aFitiefis !'ercees, ou dont Ie pere, la mere SORt 't'ietimes E1'tll'le thspftrition forcee
ou Ie representant legal sont soumis it une,disparition forcee, au d' enfants nes pendant
la captivite de leur mere 'Aetime d'ane diHparitioR forcee soumise it une disparition forcee ;
b)
La falsification Oll la dissimulation destnlctiofl de deCl:Il'flCnts attestaflt de la
veritable identite des enfants vises ul'alinea (a).

2.

Tout Etat partie prend les mesures necessaires pour rechercher et identifier les enfants
vises au paragraphe I a) et-e1 et les rendre a leur famille d'origine.

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Article 2S
I.

Lorsqu'utl el1fuftt etlle'le ou aI3proprhS elmS le5 eonditions de "artiele 23 a) est retrou'le
Sllr Ie territoire d'litl Etat partie, 18 question Ele ~lon eventuei retour ven, sa famille
d'origil1e est reglee :lOit par la loi natioflale ele eet Etat partie. soit flar 1'8eeoFd bilateral ou
ffiHltiiateral qui Ie lie 8\'ee tout autre Etat almS lequel reside Ie femme d'origifle.

2.

Compte tenu de la necessite de preserver l'interet superieur des enfants vises it
. I'article 23, § 1 a) et leur droit it preserver leur identite, y compris leur nationalite et
leurs liens famiUaux reconnus par la loi, il doit etre possible, dans les Etats parties
qui reconnaissent Ie sysreme d'adoption, de reviser la proCooure d'adoption de ces
enfants, et en particuJier d'annuler loute adoption qui trouve son origine dans une
disparition forcee. Une telle adoption peut nenDmO.nS eOfltinueF it p"odu.re ses effets
S1 les plus proehes porents de l'enfoR~ donneRt leuF eeRseRtement QU memeR! de 10
re't'isieR.
.

3.

En toute circonstance. !'interet superieur de ('enfant est une consideration primordiale,
et I'enfant qui est capable de discemement a Ie droit d'exprimer Iibrement son opinion,
laquelle est dOment prise en compte eu egard ason age et ason degre de maturite.

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Geneve, Ie 21 decem ore 2004

Chers collegues,
Grace a votre participation, notre reunion du 9 decembre a permis de faire des
progres dans la discussion du projet d'instnunent pour la protection de toutes les
personnes contre les disparitions forcees.
.
Je vous ptopose que nous nous reunissions
informelle, ala mission franyaise
- Ie 19 janvier
15bis, 19 et 20;

a. partir de

a.

nouveau, toujours de fayon
.

ISh, pour traiter les articles 10, 11, 12, 13, 14, 15,
,

- Ie 24 janvier toute la joumee, pour traiter les articles 16, 16bis, 17, 18 et 22 it
partir de 9h, et les parties 2 et 3 a partir de 14h. Une collation sera servie pour Ie
d6jeuner.
Avec mes remerciements pour notre fructueuse cooperation, je
mes meilleurs vreux.pour l'annee 2005.

tit'tu.. ~ t.e.R..

h

... ,

VOllS

presente

.j-

Bernard KESSEDJIAN

NB : Merei de bien vou1oir informer Mme d'Angelo (022 758 91 42) de votre participation.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 23 JUN 2009 200706444

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Recipient

Read

Aswad. Evelyn M (l·HRR)

Read: 12128120044:14 PM

Cassel. Lynn L

Read: 12/2B12004 4:17 PM

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Geneva, 30 November 2004

Subject: Enforced disappearances

Dear Colleagues,

As was envisaged during the last session of our working group on the negotiation of an
instrument on enforced disappearances and with a view to making progress before the next
session (31 January-ll February 2005), I would like to suggest that we meet on 9 December to
work on the text of the draft instrument. During this day, all interested delegations are invited to
contribute to the elaboration of fonnulasto solve certain issues or to facilitate progress. These
discussions will ofcourse be informal and friendly.
":ork wiU take place from 9 am. to 18 p.m. on 9 December at the French Mission. A

light lunch will be served.
I am grateful in advance for your participation in this working meeting and I look

forward to seeing you again on this occasion.

PS ; Please let Mme d'Angelo (022 758 91 42) know ifyoiJ plan to attend.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORI1Y: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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Geneve, Ie 30 novembre 2004

Objet: Disparitions forcees

N°...AJt~b

Chers colU:gues,
Ainsi qu'j] avait ete envisage au cours de la demiere session de notre groupe de
negociation d'un instrument sur les disparitions forcees et afin de fwre avancer notre travail en vue
de Ia prochaine session (31 janvier-II fevrier 2005), je vous propose de nous rcumr Ie 9
decembre. pOUT une journee de travail sur Ie texte du projet d'instrument. Au cours de cette
joumee. l'ensemble des delegations interessees sont invitees a contribuer a l'elaboration de
propositions pour tenter de regier certaines difficultes ou en faire progresser la solution. Ces
discussions 5e derouleront bien sOr de fac;:on informelle et amicale.
Cette reunion aura lieu Ie 9 decembre de 9h a ISh,

a la mission de France. Une collation

sera servie a l'heure du dejeuner.
Je VallS remercie par avance de votte participation
rejouis de vous revoir acette occasion.

a cette reunion de travail et je me

Bernard KESSEDJIAN

NB : Merci d'informer Mme d'Angel0 (0227589142) de votre participation.

I

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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Peay, T Michael
From:
Sent:

To:
Cc:
SUbject:

,-

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Brancato, Gilda M

Tuesday, July 06,20047:17 PM
Peay, T Michael
Solomon, Steven A
FW: Secret detentions

another article on the disappeared. Mike: have our september one week formal negotiations on the disappearances treaty
been scheduled yet? many thanks, gilda
·---Origlnal Message-···From:
Mallonek, Tom V
Sent:
Monday, June 28, 2004 10:1"1 AM
To:
Alider, Lois L; Blancl<Jr. John I; Cook, Daphne W; Dalton, Robert f; Dennis, Michael J; Dolan, JoAnn; Haines, Avril 0; Legal-l-HRR·
dl
Subject:
Secret detentions
UNCLASSIFIED per E.O. 12958

Washington Times> June 28, 2004 - pg. 17

Torturing Suspected Terrorists?
By Nat Hentoff
Much of the media eventually may lose interest in the contention of administration lawyers - in leaked Pentagon
and Justice Department reports - that the president, as commander in chief in a war on terrorism, has the
authority to justifY selective use oftort,ure on'prisoners allegedly linked to terrorism. But in a Jetter to the New
York Times, Dr. Allen Kelley, Director of the BeIJevue·NYU Program for Survivors of Torture, sounds a
warning:
"The notion that torture is justified or effective in eliciting infonnation is misguided and dangerous. Individuals
so brutalized will say whatever they think their interrogators want to hear. n
Meanwhile, even weeks later, the media has almost entirely ignored the May 16 ABC Television "Nightline"
program titled "The Disappeared." It focused not on whether, and when, a congressional statute and
international treaties we've signed can be bypassed, but rather> on an operation apparently even more
disconnected from our laws.
"Nightline" focused on super-secret CIA interrogation centers overseas. "The inmates are believed to make up a
who's who ofthe top al Qaeda leadership," said reporter Chris Bury. UBut even their names are classified. Some
of them may never be released. For all practical purposes, they have just disappeared."
Obviously, it's essential to get infonnation from leading terrorists. But, Mr. Bury continued, these prisons
"operate entirely outside the U.S. judicial system, according to a set of rules approved by the Justice
Department. But like everything else about the CIA's prisons, those rules are also top secret."
As the May 24 edition of Newsweek reported, after the president was assured by his legal advisers that the
Geneva Conventions do not apply to the questioning of such terrorist prisoners, his directive "authorized the
CIA to set up a series ofsecret detention facilities outside the United States, and to question those held in them
with unprecedented harshness."
"NightIine" broadcast a news clip where the president declared: "You need to have a president who understands
UNITED STATES DEPARTMENT OF STATE
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DATE/CASE ID: 23 JUN 2009 200706444

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you can't win this war with legal papers. We've got to use every asset at our disposal."
Though most of the media has ignored this story, there has been some earlier coverage on the secret CIA
interrogation centers, such as in the Dec. 26, 2002, story by The Washington Post on prisoners in a CIA facility
at Bagram Air Force base in Afghanistan. They were systematically subjected to abuses veering on torture. But
that story died soon after.
Mr. Bury, speaking of the series of secret CIA prisons beyond'the reach ofthe American rule oflaw, as~ed:
"Since when are people in American custody allowed simply to disappear into a black hole?"
Appearing on the program was retired FBI agent Jack Cloonan, on the job for 27 years and the senior agent on
the FBI's 'ibin Laden Squad" in New York. Knowing from experience how vital it is to get infonnation from
these high-echelon terrorists, Mr. Cloonan also wonders:
.
"What are we going to do with these people (in the CIA secret prisons) when we're finished exploiting them?
Are they gonna disappear? Are they stateless?Imean, what are we gonna explain to people when they start
asking questions about where they are? Are they dead? Are they alive? What oversight does Congress have?"
On the same program, Rep. Jane Harman of California, ranking Democrat on the House Intelligence Committee,
said th~t she wants lito save American lives, but I want to do it within the constraints ofD.S. and international
law ... I think the oversight process in Congress right now is less than it needs to be.
ItThe people we're fighting don't abide by the rules. But if we don't follow the rule of law, what are we fighting
for?"
"Nightlinelt reporter John McWethy, the principal reporter on the story, said that "a CIA official claims the
prisoners are not being tortured. As for the details of where they are being held, exactly how they are being
treated and what the U.S. plans to do-with them, that is all a secret. When asked why, an official from the CIA
explained, that's a secret. too." Now that George Tenet has resigned as head of the CIA. will he disclose some of
those secrets in the interest ofjustice? After all, international treaties we have signed forbid such bottomless
secrecy about such prisoners.
Wha~ also concerns me, as a journalist, is why the great majority of the print, broadcast and other media did not
quickly follow up on the "Nightlineu report. Later, I asked Mr. Bury if he had seen any meaningful coverage of
that program. He had not. Neither did I. But recently, other reports were emerging about the secret prisons especially Human Rights First's documented "Ending Secret Detentions. 1I

We did previously find out from the May 16 New York Times that one ofmost important al Qaeda prisoners,
KhaIid Shaikh Mohammed, was somewhere II strapped down forcibly, pushed under water and made to believe
he might drown."
I can't say I felt terribly sorry for him; but are we ever going to know what else is being done to him, and to
others of the CIA's super-secret prisoners? Should we care whether they .entirely disappear? Even these mass
murderers?
What do you think?
Tom. Malionek
Analyst for Boundaries· Boundary Waters· Conservation· Environment· Fisheries - Human Rights - Maritime Matters

Office of the Assistant Legal Adviser for Treaty Affairs (LIT)
5420 HST

phone
fax

202-647-1336 (direct)
202-736-7541

2

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RELEASED IN FULL
United States Proposals on ·"Access to Information" (January 16, 2004)

Article 7
Delete the following sentence: in particular, the right to obtain accurate
and full information on the fate of disappeared persons is guaranteed in all
circumstances." [Unnecessary in light ofwhat follows.}
H

Article 12 [as shortened]
1. (same)

2. (same)
3. (same)
New Consolidated Chapter on -"Access to Information"
Article 12 bis [New]

1. Each State Party, subject to Article]2 ter(4», shall provide to family
members, and to other persons with a legitimate interest, information.
concerning the whereabouts and fate of a disappeared person, including
infonnation resulting from an investigation into the disappearance.
2. At a minimum, such informationshall include:
(a) The authority to whom the person has been referred;

(b) The whereabouts ofthe person deprived afliberty, including in
case oftransfer;
(c) The identity ofthe person responsible for the deprivation ofliberty and of
the person in whose hands the person deprived ofliberty has been.placed.
[Former Art. 16(2)7

3. Each State Party shall prepare and maintain one or several official
re~isters ofpersons deprived of liberty. [Former Art. 16(3),· however, the
2n sentence would become unnecessary in view ofArt. 12 his.]

I

DmTED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE In: 23 JUN 2009 200706444

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· UNCLASSIFIED
Article 12 ter [New]

1. In implementing their obligations under this [instrument], States Parties
shall respect the fundamental need of family members, and other persons
with a legitimate interest, to obtain information promptly and regularly
regarding the whereabouts and the fate of a disappeared person.

2. States Parties shall adopt, if they have not yet done so, the necessary
domestic legal measures to ensure appropriate access to such information.
,

I'

I

3. States Parties shaH be guided by the principle that furnishing such
infonnation shall in no circumstances be unreasonably denied.
4. Such access shall be subject only to privacy, law enforcement, national
security, or other similar considerations duly justified under law.

Article 17
[The necessity of this article would need to be reevaluated, in light of
provisions'i? the new "Access to Information" Chapter].

Article 19 [as revised]
Each State Party shall take the necessary measures to prevent or punish the
following conduct:
(a) Any unlawful delay or obstruction in providing the access to infonnation
envisioned by Article 12 his and Article 12 ter. [delete reference to Art. 17]
(b) same
(c) same

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Peay, T Michael

Moley. Kevin; Cassel, Lynn L
Delaurentis, Jeffrey
Enforced Disappearances Negotiations: Draft Reporting Cable

To:
Cc:
Subject:

;::

Reporting Cable
Forced Dlsappe.••

January 27,2004
Ambassador and

oeM:

Per your requests, attached for your information and comment is the current draft text of the reporting cable that has been
penned by Gilda Brancato from UHRR and edited by me to reflect the past two weeks of negotiations on this instrument.
She has not yet drafted a comment. but I can fumish that to you when drafted for your information and comment.

I welcome any reactions you may have.
Mike Peay

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

1

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Pear, T Michael
From:
-.ent:
( fo:

Cc:
Subject:

UNCLASSIFIED
_ _ _ _ _ _ _ _ _ _ _"""""-'RE==.LEASED IN FULL
Brancato, Gilda M
Tuesday, December 31,2002 9:57 PM
Surena, Andre M; Manning, Denise; Johnson, Thomas A; Sicade. Lynn M; Camponovo,
Christopher N (DRL); Stewart. David P; Deresln, Joshua L;
'ElIana_davidson@nls.polir:y.osd,penlagon.smll.mil'
Wilten, Samuel M; Jacobson, Linda; Buchwald, "Todd F; Dolan. JoAnn; Hollis, Duncan;
Danies. Joel D{Geneva); Peay, T Michael{Geneva); Solomon, Steven A(Geneva}; Legal-LHRR-dl
.
ARTICLE BY ARTICLE INSTRUCTIONS TO THE UNITED STATES DELEGATION TO THE
UNCHR WORKING GROUP SESESION ON FORCED DSIAPPEARANCES:

Ge..\5t)

Attached for your review is a discussion of the principal sections of the 1998 UNCHR sub-commission draft on forced
disappearances. This article by article analysis is intended to supplement the general instructions paper sent to you for
clearance on December 234. I would very much appreciate any comments you may have and clearance if possible.
However, I realize that time is short and thus you may not have time 10 do a review by Friday noon (last day in the offICe
before leavin9 for Geneva). Many thanks, and wiShing you a wonderful new year, filled with good hea~h and good events.

U

ztSCOII.4oc

Gilda

cc by fax - dDyoia - tom burrows

c

l

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIEM BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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Page 1 of2

!,.Draft international convention on the protection of all persons

UNCLASSIFIED
•

UN,TEUNATlON.HtGHCOMMISSlONE.
FOR HUMAN RIGHTS

~~
~'i

-~-----------=-=-

,
I

j\'

C;t 159

RELEASED IN FULL

Draft interoational convention on tbe protection of all persons
from enforced disappearance
Sub-Commluloll resolutlOll 199&115

The Sub-Commissjon on PrevenliM of Discrimination and Protecti~n ofMinorities,
~ General Assembly resolution 47/133 of 18 December 1992 by which the Assembly
proclaimed the Declaration on the Protection of All Persons from Enforced Disappearance as a body 01
principles for all States and urged that all efforts be made so that the Declaration became generally
known and implemented,

Recalling also General Assembly resolution 41/120 of 4 December 1986 in which the Assembly
recognized tbe value ofcontinuing efforts to identifY specific areas where further international action
was required to develop the existing legal framework in the field of human rights,

(

R..ecalling further Commission on Hwnan Rights resolution 1997/26 in which the Commission, deeply ,
concerned, in particular, by the intensification ofenforced or involuntary disappearances in various
regions of the world and by the growing number of reports concerning harassment, ill-treatment and
intimidation of witnesses, ofdisappearances or relatives of persons who have disappeared, took note of
the report of the Working Group on Enforced or Involuntary Disappearances (ElCN.411997/34), which
at paragraph 31, welcomed the efforts ofthe Sub-Commission's sessional working group on the
administration ofjustice to prepare a draft international convention on the prevention and punishment of
enforced disappearances,
Considering that enforced disappearaneeundennines the deepest values of any society committed to
respect for the role of law, human rights and fundamental freedoms, and that the systematic practice of
enforced disappearance is oftbe nature ofa crime against hwnanity,
~

that at the forty-seventh session of the Sub-Commission the sessional working group on the
administration ofjustice, had asked its Chairman-Rapporteur, Mr. Louis Joine!, to submit a preliminary
draft "international convention on the prevention and punishment ofenforced disappearances~ which
fonned the basis for discussion at the working group at its J996 and 1997 sessions,

expressing its anpTcciatiM, to the Chainnan-Rapporteur for baving submitted, in time for the SubCommission's consideration at its fiftieth session, a text entitled "Draft international convention on the
protection ofall persons from enforced disappearance" (ElCN.4/Sub,211998/19, annex) which was
revised by the working group at the current seSsion,
I, IW:ides to transmit the draft international convention on the protection ofall persons from enforced
disappearance to the Commission on Human Rights for its consideration, together with the comments of
the Sub-Commission thereon as well as those of the sessional working group on the administration of
justice (ElCN.4/Sub.211998/19, paras. 9-64):

http://www.unhcbr.ch/HuridocdaIHuridoca.nsli.TestFramcl5209b6d89aOe590f802566730034c3& 1/3/03

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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CLASSIFI~ 2 of2

~Draft international convention on the protection of all persoDt]N"

2. Requests the Commission to invite Goverrunents, intergovernmental organizations and nongovernmental organizations to provide comments on the draft convention.
(

35th meeting
~gust1998

[Adopted without a vote. See chap. XI.]
nO~.E

I SITE MAP ISEARCI! 1l!l!!.5! I!l.0~I!!EIll:S 1TREATIES IMEETINGS I PRESSl ST....TEMENTS

to Copyright 1996-2000
Omte of th~ United Natl<>ns Hlch Commbsloner for Rllman Rights
Gen."a, Swltzertand

(

I
I

L

! "\.,

hrtp://www.unhchr.chIHuridocda/HuridocanstJrestFramel5209b6d89a0e59011l02566730034c1.. 1/3/03

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,. .

~ b2 ,~-

Pea y t T Michael ------··---·----·--0-·-----··--·.·---·--..-·-------RELEASED IN FULL ..-·--_.__ ......_-- .. _--._. _. __ .... _ .
Brancato, Gilda M
Thursday, December 18, 2003 1:16 AM
,
Manning, Denise; Brooks, Waldo W eay, T Michael( 'neva); Harris, Robert K; Johnson,
Thomas A; Camponovo, Christophe
DRL .
n, Mary Helen;
'James_Burger@nts.policy.osd.pentagon.smiJ.mil'
Teel, Wynne M; Dalton, Robert E; Jacobson, Linda; Buchwald, Todd F; Dolan, JoAnn;
Cummings, Edward R (Main State); Danies, Joel D(Geneva); Solomon, Steven A(Geneva);
Delaurentis, Jeffrey(Geneva); Legal-L-HRR-dl; Perry, June C; Sicade, Lynn M; Witten,
SamuelM
Draft Instructions for Second Formal Round of Forced Disappearances Treaty Negotiations

From:

Sent:
To:

Cc:

Subject:

Attached for the clearance of those on the TO line are proposed instructions for the US delegation during forced

-

tJ

disappearance
.
treaty negotiations beginning January 12. I had earlier circulated the Chair's 2003
convention text on the unclassified system. Please let me know if you need another copy.
These 27 pages of detailed comments may look daunting, if not excruciating, so to the extent you cleared earlier
instructions one year ago on a different treaty text and wish to put down for a.draft clearance on this round, please let me
know. If you have not yet cleared an iteration of these comments, I would appreciate your doing so, please. This treaty
negotiation raises important issues, and DOD and DOJ review in particular is important. Thank you.
UPll- you only need to review comments on Article 23-25 on abduction of children of the disappeared.
Thank you all, Gilda

~
-----_:::...-_----

\UNITED STATES DEPARTMENT OF STATE
:REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444
\

1

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G~\105

Document de travail

01/12/03

Partie I
[Chopitrt 1. - Dijinition]

.

Article tiemier
Aux fins [dn prisent instrument], on entend par disparition forcee la privation de libeIte d'une
personne, SallS quelque fonne que ce soit, commise par des agents de ('Etat ou par une
organisation politique, au par des personnes ou des groupes de personnes qui agissent avec
l'autorisation, l'appui au l'acquiescement de l'£tat au de l'organisation politique, suivie du
deni de la reconnaissance de Ia privation de liberte ou de la dissimulation du sort reserve a
1a personne disparue au du lieu au elle se trouve, la soustrayant ainsi a Ia protection de la
10L

[Ch(lj>itre 2. ..:-... Inmminations et santtions).

Article 2
1.
Tout Etat partie prend Ies mesures nckessaires pour que la dispar.ition foreee, telIe
qu'elle est dcHinie al'artide 1«, consUme une infraction au regard de son dtoit penal.

2.
Le present article est sans prejudice de tout autre inst1Ument international ou de
toute loi nationale qui contient ou peut contenir des dispositions de portee plus large.

A.rticle J
Tout Etat partie prend les mesures necessaires pOU!" punic:
a) les auteurs d'une disparition forcee et" ceux qui s'en rendent compliccs, soit en
ordonnant, sollicitant ou encourageant la commission ou la tentative d'une telIe
infraction, soit en facilitant Ill. commission ou Ia tentative d'une telie infraction
en apportant leur aide, leur concours ou "toute autre forme d'assistance, y
cornpris en fournissant les ~oyens de cette commission ou de cette tentative,
b) la tentative de disparition forcee,
c) I'entente en vue de commettre une disparition forcee,

PNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCIDE M BOLSTER
DATE/CASE ill: 23 JUN 2009 200706444

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\

d) Ie soperieur hierarchique qui :
(i)
savait OU, en raison des circonstances
disposait, aurait dli Sllvoir qu'un subordonne place
contrale effectifs emit en train de commettte ou sur
disparition forcee, et qui :

et des informations dont il
sous son autorite ou son
Ie point de commettIe une
. .

(li)
n'a pas pris toutes les mesures necessaires et raisonnables qui etaient
en son pDuvOir pour empecher au faire cesser la disparition forcee, au pour en
reprimer I'execution au en referer aux autorites competentes :lUX fins d'enquete et
de poursuites.

Article 4
1.
Tout Etat partie rend Ia disparition foreee passible de pemes appropriees qui
prennent en consideration sa gtavite.
2.

Tout Btat partie peut prevoir :
a) des eirconstances attenuantes en faveur de ceux qui, impliques dans Ia
co1lU1'lission d'une disparition (orcee, auront contribue efficacement
Ia
recuperation en vie de la personne disparue ou auront PemUs d'elucider des cas
de displlritions forcees ou d'identifier les auteurs d'une disparition fortee ;

a

b) des circonstances aggtavantes envers ceux qui se sont rendus coupabIes d'une
disparition forcee al'encontre d'une personne particulierement vulnerable.

[Chapilre 3. - ProtectioN contft !'/mpl/nifl.]

Article 5
1.
Tout Etat partie prend les mesures necessaires pour qu'a I'egard de Ia disparition
foreee, Ie delai de prescription de Paction penale :
a) soit ega! au deW Ie plus long prevu dans sa 1egislatipn ;
b) commence a courir it compter du jour
connu avec certitude.

ou Ie sort de la personne disparue est

2.
Lorsque les recours prevus al'article 2 § 3 a) du Pacte international re1atif aux droits
civils et politiques ne sont pas efficaces, Ia prescription de 1a disparition forcee est
suspendue aussi longtemps que l'efficacite de ces recours n'aura pas etc remblie.

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Adicle6

L'ordre d'iln superieur ou d'une autorite publique ne peut etre invoque pour justifier une
disparition forece.
Article 7

Tout Etat partie s'assure que les mesures d~ grace, d'amnistie et les autres mesures
analogues dont peuvent bene£icier les auteurs ou les personnes soups;onnees d'avoir
eommis une disparition [oreee, n'aient pas pour effet d'empeeher l'exercice d'un recours
effectif pour I'obtention d'une reparation. Est notamment garanti, en toute cireonstanee, Ie
droit d'obtenir des informations exactes et completes sur Ie sort des personnes disparoes.

Artkle 8
Tout Etat partie considere la disparition forcee comm~ un crime grave de droit commun,
au sens de I'article 1 F b) de la Convention relative au statut des refugies du 28 juillet 1951.

[Chapim 4. ..:.- POllTSuites aupion national}

Article 9
1.
Tout Etat partie prend les mesw:es necessaites pour etablir sa competence aux fins
de connaltre d'une disparition [orece, dans les cas suivants: .

a)

Quand l'infraction a ete commise sur tout tettitoire relevant de sa jutidiction
ou a bord d'un navire battant son pavilion ou d'un aeronef immatricule
conformement a sa legislation au moment des faits ;

b)

Quand l'auteur presume de I'infraction est I'un de ses ressortissants ;

c)

Quand la personne disparue est l'uo de ses ressortissants ;

d)

Quand l'auteur presume de I'infraction se trouve sur tout territoire relevant
de sa juridiction, sauf s'il l'extrade ou s~il Ie defere devant vne jw:idiction
penale intemationale.

2.
[Le prism! instnlment) n'ecarte aucune competence penale exercee conformement
awe lois nationales.

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Article 10
1.
S'il estime que les drconstances Ie justifient, apres avoir examine les renseignements
dont it dispose, tout Etat partie sur Ie terntoire duque! se trouve une personne soup~onnee
d'avoir commis une disparitiotl forcee assure la detention de cette personne ou prend
toutes autres mesures juridiques necessaires pour assurer sa presence. Cette detention et ces
mesures doivent etre conformes la legislation dudit Etat partie ; elles ne peuvent etre
maintenues que pendant Ie delai necessaire aI'engagement de poursuites penales o~ d'une
procedure d'extradirion.

a

2.

VEtat partie qui a pris les mesures visees au paragraphe 1 procede immediatement
d'etablir les faits. II infonne les Etats parties qui poutraient ctre
competents conformement a I'article 9 § 1 a), b) et c) des mesures qu'il a prises en
application du paragraphe 1 et des conclusions de son enquete, en leur indiquant s'iJ entend
exercer sa competence.
.

a une enqucte en vue

3.
Toute personae detenue en application du paragraphe 1 peut communiquer
immediatement, avec Ie plus proche representant qualifie de rEtat dont elle a la nationalite
au, s'il s'agit d'une personne apatride, avec Ie representant de I'Etat au eIle reside
habituellement.

Article 11
1.
VEtat partie sur Ie temtoire 'sous ]a juridiction duquel l'auteur presume d'une
disparition foreee est decouvert. s'il n'cxtrade pas ce dernier ou ne Ie derere pas devant une
juddiction penale intemationllle, soumet I'affaire a ses autoriies competentes pour I'exerciee
de I'action penale.

2.
Ces autorites plennent leur decision dans les memes conditions que pou~ toute
infraction de droit commun de caractere grave en vertu du droit de cet Etat partie. Dans les
cas vises l'article 9 § 1 d), les regtes de preuve qui s'appliquent aux poursuites et la
condamnation ne sont en aucune fa~on moins rigoureuses que ceDes qui s'appliquent dans
les cas vises I'article 9 § 1 a), b) et c).

a

a

a

3.
Toute personne soup~onnee d'avoir commis une disparltion fOlcee est jugee par
une juridiction de droit commun qui ofEte des garantics de competence, d'independance et
d'impartialite et qui respecte les garanties du pIOCeS equitable.
Arnde 12
1.
Tout Etat partie assure it quiconque alleguant qu'une pet:Sonne a ete victime d'une
disparition forcee Ie droit de denoncer les faits devant une autorite competente, laquelle
procede immediatement et itnpartialement it une enquete approfondie. Des mesures seront
prises pour assurer la protection du pIaignant et des temoins contre tout mauvais traitement
au toute intimidation en raison de la pIainte deposee ou de toute deposition faite.

UNCLASSIFIED

4

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2.
Lorsqu'jl existe des raisons serieuses de croke qu'une personne a ete victime d'une
disparition forcee, tout Etat partie soumet l'affaire a l'autorite visee au par~graphe 1, afin
qu'elle ouvre une enquete, meme si aucune plainte n'a ete officiellement deposee.
3.

Tout Etat partie veille

ace que l'autorite visee au paragraphe 1 :

a) dispose des pouvoirs et des ressources n~cessakes pour mener l'enquete
b) ait communication des documents necessaires

a bien;

ason enquete ;

.

c) ait acces atout lieu OU la presence d'une personne disparue est soupc;onnee.

4.
Tout Etat partie garantit aux personnes q~ ant un interet legitime Ie droit d'etre
informees, Ii. leur demande, des progres et des resultats de l'enquete ouverte en application
des paragraphcs 1 ou 2.
5.

Sont consideres comme ayant un interet legitime, aux fins [dll prismt instrllment] :

a) 1a personne povee de liberte ;
b) Ie conjoint et les membres de la famille de Ia. personne privce de liberte, son
avocat ou son representant legal ;

c) toute personne mandatee par les personnes visees aux points a) et b).
6.
Tout Etat partie prend les mesures necessakes pout prevenir et sanctionner les
actes de nature entraver Ie deroulement des enquetes. II s'assure notamment que les
personnes soup~onnees d'avoir comrnis une disparition foreee ne soient pllS en mesure
d'in£lucr sur Ie cours des enquetes, par des pressions et des actes d'intimidation ou de
represailles excrees sur ceux qui participent al'enquete, sur les temoins et sur les proches de
la personne disparue.

a

[Chapilre 5. -

Coupiratio't illtml(1tio!la/ej
Artkk 13

1.
Aux effets de l'extradition, la disparition forcee u'est pas consideree conune une
infraction politique au comme une infraction de droit commun commises pour des raisons
politiques.

2.
lieu

La disparition forcee est de plein droit comprise au nombre des infractions donnant
"

a extradition danl; tout traite d'extramtion candu entre des Etats patties.

Tout Etat partie s'engage a indure Ia disparition forcee au nombre des infractions
3.
qui justifient l'extraclition dans tout traite d'extradition auquel il souscrit.

UNCLASSIFIED

5

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4.
Tout Etat pattie qui assujettit l'e"tradition a l'existence d'un traite peut, s'il res:oit
une demande d'extradition d'un autre Etat pattie auquel il n'est pas lie par un ttaite,
considerer [Ie prisent instr1lment] comrne Ia base juridique necessaire pour l'extradition en ce
qui conceme la disparition fOIeee.
5.
Tout Etat partie qui n'assujettit pas I'extradition it l'existence d'un traite reconnait III
disparition forcee comrne susceptible d'exttadition.
6.L'extradition est subordonnee atix conditions pIevues par Ie droit de l'Etat partie
Iequis ou par les traites d'extradition applicabIes, y compris, notamment, aux conditions
concemant la peine minimale requise pour extrader et aux· motifs pour Iesquds l'Etat partie
tequis peut refuser l'extradition.
7.
Aucune disposition [do prisent inslr1lllteltt] ne doir etre interpretee comme faisant
obligation a I'Etat partie requis d'extrader s'il a de serieuses raisons de penser que la
demande a ere presentee aux fins de poursuivre ou de punir une personne en raison de son
sexe, de sa race, de sa religion, de sa nationalite, de son origine ethnique ou de ses opinions
politiques, ou que donner suite a cette demande causerait un prejudice a cette personne
pour I'une quelconque de ces raisons.

Article 14
1.
Les Etats parties s'accordent l'entraide judiciaire Ia plus mge possible dans toute
enquete ou procedure penale relative a une disparition forcCe, y compris en ce qui conceme
Ia communication de tous Ies elements de preuve dont ils disposent et qui sont necessaires
aux fins de Ia procedure.
.
2.
L'entraide judiciaire est subordonnee awe conditions ptevues par Ie droit interne de
l'Etat partie requis ou par Ies traites d'entraide judiciaire applicables, y compris,
notamment,aux conditions concernant les motifs pour lesquels l'Etat partie requis pent
refuser d'llccorder I'entraide judiciaire.
3.
L'entraide judiciaire peut notamrnent etre refusee si i'Etat partie requis estime que
I'execution de Ia demande est susceptible de porter atteinte asa souverainete, a sa securite,
ason ordre public ou ad'autres interets essentiels.
Article 15

1.
Les Etats parties cooperent entre eux et s'accordent l'entraide la plus large possible
lbns Ia recherche, 1a localisation et la liberation des personnes disparues.

2.
Les Etats parties s'accordent mutuellement aide et assistance en vue de porter
secours au" victimes des disparitions forcees et, en cas de deces des personnes disparues,
en vue de la restitution de leurs restes.

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6

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[ClJapifre 6. - pret/mHo".]
Artide 16
1.

Tout Etat partie:
a) designe les agents de l'Etat habilites aordonner des privations de liberte ;
b) determine les conditions dans lesqueUes de te1s ordres peuvent ette donoes ;
c) garantit que toute personne privee de liberte sera placee uniquement dans un
lieu officielJement reconnu et controle ;

d) garantit a toute personne privee de liberte, en toute circonstance :
(i)

1e droit d'introduire un recours devant un tribunal afin que celui-ci
statue sans delai sur la legalite de sa privation de liberte et ordonne
sa liberation si cette privation de liberte est illegale et,

(h)

si Ia personne privee de liberte est soup~onnee d'avoir cOmnUs une
infraction penale, Ie droit d'etre traduit dans Ie plus court delai
devant un juge ou une autre autorite habilitee par Ia loi a exercer des
fonctions judiciaires.

2.
Tout Etat partie prend les mesures necessaires pour que les personnes ayant un
interet legitime, au sens de I'article 12 § 5, rec;oivent communication, Iorsqu'ils en font la
dernandc, d'infonnations sur hi situation d'une personne privee de liberte. Ces informations
concernent au moins :
a) l'autorite alaquelle la personne a ete deferee ;
b) Ie lieu ou se trouve la personne privee de liberte, y compris lorsqu'e.l1e fait
I'objet d'un transfert ;
c) l'identite de la personne qui a ordonne la privation de Iiberte et de celle qui en
assure Ie controle.
3.
Tout Etat partie etablit et bent a Jour un ou plusieurs registtes officiels des
personnes privees de Iiberte. Les infonnations concernant Ia personne privee de liberte
figurant sur ces registres sont tenues a 1a disposition des personnes et autorites
mentionnees aux paragraphes 1 et 2, pour consultation.

Article 11
Sans prejudice de I'examen de 1a legalite de 1a privation de liberte d'une personne, les Btats
parties garanrissent a toute personne ayant un interet legitime, au sens de l'article 12 § 5, Ie
droit a un recours effectif pour obtenir les informations visees a I'article 16 § 2. Ce droit a
un recours ne peut ette suspendu ou limite en aucune circonstance.

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Article 18
Tout Etat partie pread les mesures necessaires pour que la remise en liberte d'une personne
se deroule selon des modalites qui permettent. de verifier avec certitude que 1a personne a
ete effec:tivement liberee et qu'elle I'a ete de telIe maniere que son integrite physique et sa
faculted'exercer pleinement ses droits ant ete assurees.

Article 19
Tout Etat pattie prend les mesures necessaires pour prevenir et sanc:tionner les agissements
suivants:

a

a) l'enttave au l'obstruction au recours vise' I'article 17 ;

b) Ie manquement

a

l'obligation d'enregistrement de toute privation de liberte,
ainsi que I'enregistrement de toute information dont I'agent responsable du
registre officie! eonnait ou devrait connaitre l'inexactitude ;

c) Ie refus illcgitime oppose par un agent'de l'Etat de fourni.r des informations sur
une privation de liberte, ou 1a fournitute d'informations inexaetes.

Artic/e.20

a

1.
Tout Etat partie veille ee que la formation des agents charges de I'application de la
loi puisse indure I'apprentissage necessaire concernant Jes dispositions [till ptisent inr/nl1JJent],
en vue de;

a) prevenir I'implication de ees agents dans des disparitions foreces ;
b) souligner I'importance de la prevention et des enquetes en matiere de
disparition forece ;

a

c) veiller ce que l'urgence de la resolution des cas de disparition foreee soit
reconmie.
2.
Tout Etat partie veille it ce que soient interdits les ordres ou instructions
prescrivant, autorisant ou encourageant une disparltion forcee.
3.
Tout Etat partie prend les mesures necessaires pour que les agents charges de
I'application de 1a Ioi qui ont des raisons de penser qu'une disparition foreee s'est produite
ou est sur Ie point de se produire signalent Ie cas leurs sup6:ieurs et, au besom, aux
autorites ou instances de contrale ou de recours competentes.

a

ArtiCle 21
~.
Aucun Etat partie n'expulse, ne refoule ni n'extrade une personne vers un autre
Etat s'll y a. des motifs de croire qu'une dispa.rition forcee risque d'etre comrnise a son
encontre dans cet Etat.

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2.
Pour determiner s'il existe de tds motifs, les autontes competentes tiendront
compte de toutes les considerations pertinentes, y compris, Ie cas echeant, de l'existence,
dans l'Etat interesse, cl'un ensemble de violations systematiques, graves, flagrantes au
massives des droits de l'homme ou du droit humanitaire.

[Chapilre 7, -

Victimes.]
Article 22

1.
Aux fms [dn premt! instnlment], on entend par victime toule personne physique qui a
subi un prejudice en raison de la commission de l'infraction definie I'article 1er,

a

a

2.
Tout Etat partie garantit, dans son systeme juridique, la victime d'une disparition
forcee Ie droit d'oblenir une reparation des dominages materiels au moraux qui lui ant ete
causes.
.
3.

Le droit areparation vise au paragraphe 2 comprend notamment :

a) l'indemnisation,
b) la restitution,

c) la readaptation,

d) Ie retablissement de la dignite et de Ia reputation.
[Chopitn 8. - Enjmts de pmonne.r disport/es.]
Artick23

Tout Etat partie prend les mesures necessaires pour prevenir et reprimer penalement:

a) l'enlevement ou I'appropriation d'enfants dont }'un ou I'autre des parents sont
victimes des me de disparition forcee ;
b) la f~lsification ou la destruction de documents attestant la veritable identite des
cnfants vises au a).

Arti€/e24

Les Etats parties se pretent mutuellement assistance dans la recherche, I'identification et Ia
determination du lieu au se trouvent les enfants enleves ou appropries dans les conditions
de l'article 23 a).

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Artide25
1.
Lorsqu'un enfant enleve au approprie dans les conditions de l'article 23 a) est
retrouve sur Ie teuitoire d'un Etat partie, la question de son eventuel retour vers sa famille
d'origine est reglee, soit par la loi nationale de eet Etat partie, soit par l'accord bilateral ou
multilateral qui Ie lie avec tout autre Etat dans leque1 reside la famille d'origine.
2.
En toute cUconstance, I'interet superieur de I'enfant est une consideration
primordiale et I'enfant qui est capable de discemement a Ie moit d'exprimer librement son
opinion, laquelle est dumcnt prise en compte eu egard a son age et a son degre de maturite.

Partie II
ArtideII-A

ra

1.
Tout Etat partie presente l'otgane de SliM], par l'entremise du Secretaire general de
l'Organisation des Nations Unies, un rapport sur les mesures prises pour donner effet a ses
obligations en vertu [dll prfsent instmment}, dans un delai d'un an a compte! de I'entree en
vigueur [dllprisent instrument] son egatd.
.

a

2.
A la suite de la presentation du rapport vise au paragraphe 1, tout Etat partie
fournit un rapport complementaire sur demande [de 1'0'1,11'" de slIivij.

3.

Le Secretaite
tous Ies Etats parties.

general de l'Otganisation des Nations Unies ttansmet les rapports a

4.

Chaque rapport est etuilie par [I'otgtlne de SliM], qui peut faire les commentaires, les
observations, les recommanc1ations et les mises en garde qu'il estime appropries. VEtat
partie interesse r~oit communication des commentaires, 'observations, recommandations
et mises en garde, auxque1s it peut repondre, de sa. propre initiative ou a la demande [dt

I'organt de mivi}..
Article II-B
1.
[L'organe de mitlt] peut etre saisi par un Etat partie, ou par toute personne qui a un
interet legitime, au sens de I'article 12 § 5, d'une demande visant a chercher et rettouver
une personne disparue au sens de I'article le<,

2.
S'll estirne que la demande presentee en vertu du paragraphe 1 n'est pas
manifestement depourvue de fondement, qu'elle ne constitue pas un abus de droit et
qu'elle n'est pas incompatible avec les dispositions [du present instrument], [/'orgone de suillZ]
demande atout Etat partie de lui fournir, dans un delai qu'il fIxe, des renseignements sur 13
situatioJ;l de cette personne.

10

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3.
Au vu de la reponse fournie pat l'Etat partie interesse conformement au paragraphe
2, [I'orgc1!Je de .flfiviJ presente ace dernier une recommandation ou une mise en garde. II peut
aussi lui enjoindre de prendre' des mesutes adequates et de lui en fake rapport, dans un
delai qu'il fixe.
. 4.
[L'organe de suiviJ etablit les conclusions de son enquhe et les communique al'auteur
de la demande visee au paragraphe 1 et a tout Etat partie auquel des renseignements ont ete
demandes.
5.
La procedure visee par Ie present article est confidentielle. Toutefois, s'iJ estime
qu'aucune mesure adequate a'a ete prise ala suite d'une demande presentee co~formement
au paragniphe 3, [l'orgone de Illivi] peut, apres avoir mis en demeure les Etats parties
conceroes, rendre publiques ses conclusions, ainsi que les reponses et renseignements qui
lui ont ete fournis.

ArJkIe II-C
1.
S'il estime qu'un d6placement sur Ie territoire d'un Etat partie S01:l;S la juridiction
duquel se trouverait 1a personne disparue est indispensable pour repondre a la demande
dont il est SalS! conformement a l'article II-B, [I'organe de suipi] peut demander a un ou
plusieurs de ses membres de realiser une mission d'enquete et de I'informer sans retard. Le
ou les membres [de l'orgone tit SlIil/l] qui effectuent la mission peuvent se faire accompagner,
5i necessaire, par des interpretes, des secretaires et des experts. Aucun membre de la
delegation, a l'exception des interpretes, ne peut etre ressortissant de l'Etat partie dans
leque1la visite est effectuee.

{L'orgone de sf/ivi} notifie par ecrit al'Etat partie conceme son intention d'organiser
une mission d'enquete et indique la composition de la delegation. VEtat partie fait
connaitre sans retard a {l'0'l.ane de sf/ivi] son accord ou son opposition a la mission d'enquete
sur un territoire sur lequel il exerce sa juridiction.
2.

3.
5i l'Etat partie a donne son accord a la mission d'enquete, il fourr~it [0 I'organe de
sf/il/l] toutes facilites necessaires a1'accomplissement de ccUe mission. [L 'organe de s1IM] peut
notamment:
a) effectuer les visites qu'il jugera necessaires pour chercher et retrouver la personne
dont la dispa~tion forcee est alleguee ;
b) entrer en cont-act librement avec toute personae dont it pense qu'elle peut lui
fournil des informations utiles sur Ie sort de la personne dont la disparition forcee
est alleguee ;
c) se faile presenter la personne dont Ia disparition forcee est alleguee et s'entretenir
av~c eUe sans temoin.

4.

[L'organe de film] fait part des constatations faites pendant sa mission d'enquete:
a)

al'auteur de la dema'nde visee al'article II-B paragraphe 1 ;

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b)

s.

al'Etat partie sur Ie territoire duquella mission d'enquete a ete effectuee.

La procedure visee par Ie present article est confidentielle. Toutefois, avec I'accord
des Etats parties concernes, [i'orgam suM] peut rendre publiques ses constatations

ae

Artieli 11-D
Les mernbres [de 1'0!E(1f/e de SIIiviJ et ceux qui les accompagnent en mission sur Ie territoire
des Etats parties ont droit aux facilites, privileges et imrimnites reconnus aux experts en
mission pour l'Organisation des Nations Vnies, tels qu'ils sont enonces dansles sections
pertinentes de la Convention sur les privileges et immunites des Nations Vnies.

Article II-Fj
1.
fL 'otg(111t de .rnM} n'est competent gu'a l'egard des privations de liberte ayant debute
posteneurement al'entree en vigueur.[dn prisenl inS/nlmenl}.

2.
Si un Btat devient partie [all prim11 in.rlr1imtni] apres l'entree en vigueur de celui-ci,
ses obligations vis-a-vis [de rorgolU de illivz] ne concernent que les privations de liberte ayant
debute posterieurement i I'entree en vigueur [till pri.rent inilrument) son egard.

a

ArtitklI·f
1.
[L 'o'l,atJI de illifli] presente aux Btats parries et a' l'AssembIee generale de
I'Organisation des Nations UnicS un rapport annuel sur les activites qu'il aura realisees en
application [dllpri.rtlll i11S/nImenl}.
2.

Afin d'assurer Ie suivi de ses observations et de ses tecommandations, [1'o'l,l1f1t de

smvzJ peut, a sa discretion, decider de reproduire dans Ie rapport annuel qu'il etablit
confonnement au paragraphe 1 tous conunentaires, observations, recommandations et
mises en garde formuIes par lui en vertu de l'article II-A, accompagnes des observations

rec;ues ~es Etats parties interesses. n peut aussi ~decider de reproduire les conclusions
rendues publiques conformement Ii l'article II-B, paragraphe 5, et les constatations rendues
publiques confonnement al'artic1e II-C, paragraphe 5.

Partie III
Article III-A
1.

{Lt present instrument] est ouvett a1a signature de {.. .J.

a

2.
[Le prim,t iflSlrllmmtJ est sownis
1a ratification de [. . .J. Les instruments de
ratification seront deposes aupres du Secretaire general de I'Organisation des
Nations Unies.

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.
3.
~ prisent instrument] est ouvert a l'adhesion de {...J. L'adhesion se {era par Ie depot
d'un instrument d'adhcsion aupres du Seeretaire general de l'Organisation. des
Nations Unies.
Artkle lII-B
1.

~ prisent

2.

Pour tout Etat qui ratifiera [Ie prisent instrument] ou y adherera apIeS Ie depot du

instrument} cntreta en vigueut Ie ttentierne jour apIeS la date du depot du

fN"''l instrument de ratification ou d'adhesion.

dixieme instrument de ratification au d'adhesion, [It prisent instrument] entrera en vigueur Ie

trentieme jour apres la date du depot par eet Etat de son instrument de ratification ou
d'adhesion.

Article III-C

general de l'Organisation des Nations Unies notifiera a tous les Btats
Membres de ['Organisation des Nations Unies et a tous les Rtats qui auront signe {Ie prisent
instrument] OU y auront adhere :

Le Secretaire

a) les signatures, Ies ratifications et les adhesions
III-A;

re~ues

en application de ·l'arricle

b) la date d'entree en vigueur [duprism! instrument] en application de l'article III-B.

Article III·D
Les dispositions [till prisent instrument] s'appliquent, sans limitation ni exception aucune,
toutes les unites constitutives'des Rtats federaux.

a

Article Ill-E
Aucune circonstance exceptionnelle, queUe qu'eUe soit, qu'll s,agisse de I'etat de guerre ou
de menace de guerre, d'instabilitc politique interieure ou de tout autre etat d'ex

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_ _ _ _ _ _RELEASED IN HI II J ,Qt\

Peay, T Michael.
J: ..om:
(

nt:

'to:
Cc:

SUbject:

to:!

Brancato, Gilda M
Tuesday, December 24, 2002 6:38 AM
Surena, Andre M; Gotove, Katherine M; Manning, Denise; Johnson, Thomas A; Sicade, Lyl
M; Dorosin, Joshua L; Camponovo, Christopher N (DRl);
'Eliana_Daivdson@nts.policy.osd.pentagon.smil.mil'
Jacobson, linda; Dolan. JoAnn; Buchwafd, Todd F; Danies, Joel D(Geneva); Peay. T Mich.
(Geneva); Solomon, Steven A(Geneva); Brancato, Gilda M
Revised instructions: WG on forced disappearances

Attached for your clearance is a revised set of instructions that take into account comments received from several offiCI
including JusticelOIA. This revision shifts the focus of discussion from domestic constraints to international standards,
particularly the ICCPR, to which we are a party. May I have your comments and clearance by Tuesday December 31,
please?
I will be circulating next Monday for your clearance a discussion of some of the more problematic articles of the 1998
UNCHR sub-commission draft convention.

2BCK011.DOC

Thank you for your review, and Wishing you wonderful holidays. Gilda

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ill: 23 JUN 2009 200706444

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GE \13
U.S. Government's Initial Intervention at
Working Group Negotiations on a Draft
Forced Disappearances Convention
(January 6, 2003)
The united States delegation takes great pleasure Mr. Chairman,
in warmly congratulating you on your assumption of the
chairmanship of this working group, for all of the reasons that
have already been mentioned.
The United States deplores forced disappearances and regards them
as a serious violation of human rights and fundamental freedoms,
which, as others have correctly pointed out, result in several
associated violations of human rights guarantees. These include,
for instance, deprivation of the right to liberty and security of
the person, the right against arbItrary arrest or detention, and
the rights, to due process and a fair trial, just to mention a
few. Moreover, too often, forced disappearances lead to some of
the gravest violations, such as torture and deprivation of the
right to life.
So there should be no mistake that the u.S. harbors no toleration
for the despicable collection of violations associated with the
phenomenon of "forced disappearance."
Nonetheless, the u.S. finds itself in agreement with several
delegations that have suggested in various ways that the Working
Group has much work ahead of it in order to elaborate a document
that could attract widespread acceptance within the international
community.
First, for example, reaching consensus on a legal definition of
"forced disappearance" that would be precise and not prohibit
legitimate law enforcement and military activities presents a
daunting challenge for the Working Group. While we recognize the
effort invested in the 1998 Sub-Commission draft on forced
disappearances, we believe that its definitional section is in
several respects far too broad to be workable in the practical
sense of defining and penalizing a crime. As we will point out
along the way, the draft text contains other deficiencies which
will require close scrutiny and revision. In this regard, we
believe that the Working Group should make 'a virtue of precision
in our negotiations.
Second, whatever draft instrument results from this process
should be compatible with internationally accepted standards and
guarantees, such as those contained in the ICCPR.
.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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2

Third, we believe the proposed convention should be carefully
crafted to target forced disappearances without capturing
collateral issues and bodies of law. For example, we believe
that existing international humanitarian law should continue to
govern and resolve issues arising from 'armed conflict.
A fourth concern is that, in our view, a convention should place
its greatest emphasis on strengthening national laws and law
enforcement practices, which is where the problem of forced
disappearances is typically confronted.
Fifth, we would not support the creation of a new treaty body to
oversee compliance with a new convention. We oppose duplication
of the work'and the capabilities of existing treaty bodies, and
would wish to avoid additional costs and efforts associated with
such duplication. For instance, several delegations have made
the interesting proposal that we frame this instrument as an
optional protocol to the ICCPR. An advantage of so doing may be
that the Human Rights Committee could serve as the monitoring
mechanism.
A sixth concern relates to provisions that would clearly, from
the outset, impede consensus, such as a no-reservations provision
and certain other provisions contained in the 1998 draft.
These comments represent some of our initial thoughts. Others
will likely be raised in the course'of the Working Group's
deliberations. We look forward to actively participating in the
work of this body.

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L-~6'<Ul{ /;;Vi{Jv/'( L-(S:G-;
/I_.~

d-

~ f<:> fA.I'f~

L~ .<If-u.;/.(f IO!

/

/ \/\ \k/~.

Draft Instrument on Forced Disappearances/US Proposed Text

GE\15

Article 1.

"For purposes of this instrument, an enforced disappearance is
considered to be an arrest, detention or abduction of a person by, or
with the authorization, support or acquiescence of, a State, followed by
its refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such p~rson, with the .i(I."..-.~-· i";
intention of removing that person from the protection ofthe law for a
prolonged period of time."
~

•

I

.:".~,,r..I'l".'

rJ

()

. or.
(

r'

"?_

1: :1:- ."

~"'l"

~oy.l'v,~~-~,,1(

."'.:.,." (;

"i
'ffi.,.
';""fI••".-

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I '. ·.." ..';..,
,. ':,'0/,(

." .../0-;.:(-'"

1;.

J

Article 2.
Article 2(1): Replace current 2(1) and 3(1)(a)-(c) with the following
text:
"Each State Party shall take the necessary measures to ensure that tbe
acts which comprise an enforced disappearance, for purposes of this
instrument, constitute a punishabl~ offense or offenses under' its
criminal law [or alternatively: is subject to criminal sanction under its
criminal law). The same shall apply to an attempt to commit an
enforced disappearance and to an act that constitutes complicity or
participation in, or a conspiracy to commit, an enforced
disappearance."
Article 2bis.
"States Parties shall take all feasible measures to prohibit and
criminalize the acts described in Article 1 when committed by private
organizations, groups or individuals."
Article 4. Add new Article 4(3):

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARcrnE M BOLSTER
DATE/CASE ID: 23 JlJN 2009 200706444

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"Mitigating and aggravating circumstances shall also be permitted as
provided under the domestic law of a State Party unless inconsistent
with the object and purposes of this instrument."

Article 9. Replace Article 9(1)© and Article 9(1)(d) with the following.
"In addition, each State party may take the necessary measures to
establish jurisdiction" in respect of an enforced disappearance in the
following instances:
(a) when the disappeared person is one of its nationals;
(b) when the alleged perpetrator of the offense is present in a
territory under its jurisdiction, unless the State extradites the
alleged perpetrator, or transfers him or her to an international
tribunal.~'

Article 1~(3). Preference is to delete Article 10(3).
Otherwise reword as follows:
" Any foreign national held in custody pursuant to paragraph one may
communicate with 'an appropriate representative of the State of which
he or she is a national in accordance with applicable international legal
obligations."
Article 11.
Article 11(3): Substitute "duly constituted under law" for "of general
jurisdiction," so that the provision reads as follows.
"Any person alleged to have committed an enforced disappearance shall
be tried in a court duly constitut~d under law which offers guarantees of
competence, independence and impartiality and respect for a fair trial."

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Article 12.
Article 12 passim. Change competent "authority" to "domestic
authorities."
Article 12(3): Add at end of chapeau:
", in accordance its domestic law":
Article 12(6): Reword as follows: "Each party shall endeavor to take
the necessary measures to prevent or punish acts intended to hinder an
investigation."

Article 13(6) and 14(2): Add after "refuse": "or condition".

Article 15.
Add to Article 15(1) and 15(2) after "assistance":
"in appropriate cases."
Chapter 6 should read "Prevention" not UPresentation. "

Article 16.
Article 16(1)(d): Add at end of chapeau: "in accordance with the
Constitution of the State Party":
Article 19.
Article 19(a): Add "knowing" before "delay."
Article 19(b): Add "knowing" before "Failure."

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Article 20.
The United States delegation proposes either the current text or a text
that incorporates beneficiaries of training, other than law enforcement .
personnel, who are referred to in CAT Article 10 (i.e. civil or military,
medical personnel, public'officials and other persons who may become
involved in a situation of enforced disappearance).

Article 21.
Reword text to track CAT Article 3, as follows:
"1. No State Party shall expel, return ("refouier") or extradite a person
to another State where there are substantial grounds for believing that
he or she would be in danger of being subject to an enforced
disappearance.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human
rights."

Article III-E and III-F.
Article III-E (Non-derogation) may be acceptable provided that Article
III-F (Operation of IHL) is clarified, to read as follows:
"Nothing in this instrument shall other others rights, obligations and
responsibilities of States and individuals under international law, in
particular the purposes of the Charter of the United Nations,
international humanitarian law and other relevant conventions."

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RELEASED IN FULL

21/06/114

Les indicatio/ls tel/es que « nouveau », « restructure >~, etc, visen! afaciliter la comparaison
avec Ie documelll EICN.412004/WG22/WP./lrev.l du rr decelllbre 2003.

Preambltle (nouveau)

Les Etats Parties [au pre,wmt instrument],
Rappe/ant la Declaration sur la protection de toutes les personnes contre les disparitions
forcees adoptee par I'Assembtee Generale des Nations Unies dans sa resolution 471133 du 18
decembre 1992,

COllScients de I'extreme gravite de 1a disparition forcee qui constitue un crime et, dans
certaines circonstances, un crime contre I'humanite.
Determines

a lutter contre I'impunite du crime de disparition forcee,

Affirmant Ie droit des victimes de savoir la verite sur les circonstances d'une disparition
forcee et Ie SOIl de la personne disparue,

Sont convenus de ce qui suit:

Partie I
Article premier

Aux fins [du present instrument], on entend par disparition forcee la privation de
liberte d'une personne sous quelque forme que ce soit, commise par des agents de l'Elat ou
par des personnes Oll des groupes de personnes qui agissent avec )'autorisation, I'appui ou
l'acquiescement de I'Etat, suivie du deni de la reconnaissance de la privation de Iiberte ou de
la dissimulation du sort reserve a la personne disparue ou du lieu ou elle se trouve, la
soustrayant ainsi a la protection de la loi.
Article-l bis (nouveau)

I. Nul ne peut etre soumis a llne disparition forcee.
2. (repris de I'ancien article III E). Aucune circonstance, quelle qu'elle soit, qu'il s'agisse
de I'etat de guerre ou de menace de guerre, d'instabilite politique interieure ou de tout
autre etat d'exception, ne peut etre invoquee pour justifier la disparition forcee.
Article 2 (modijuJ)
l. Tout Etat partie prend les mesures necessaires pour que la disparition forcee, tdle qU'elle
est definie a I'article j"t, constitue une infraction au regard de son droit penal.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTll:ORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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2. Tout Etat partie prend des mesures equivalentes lorsque les agissements definis a l'artic1e
Ie]' sont Ie fnit de personnes ou de groupes de personnes n'ayant pas I'autorisation, I'appui
ou I'acquiescement de l'Etat.

Article 2 his (nouveau)
La pratique generalisee ou systematique de la disparition forcee constitue un crime
contre I'humanite et entraine les consequences prevues par Ie droit international.

Article 3 (restructure)
Tout Etat partie prcnd les mesures nccessaires pour poursuivre et punir ceux qui
commettent au concourent acommettre une disparition forcee.
I. Sont punis :
a)

les auteurs d'une disparition forcee et ceux qui s'en reodent complices.

b)

In tentative de disparition forcee,

c) l'entente en vue de commettre une disparition forcee.
2. Sont egalement punis :
a) ceuxqui ordonnent ou encouragent la commission ou la tentative d'une telle infraction,
ceux qui en facilitent la commission au la tentative en apportant leur aide, leur concours ou
toute autre forme d'assistance, y compris en foumissant les moyens de cette commission ou
de cette tentative,
b) Ie superieur hierarchique qui:
i)

savait que ses subordonnes commettaient ou allaient commettre une disparition
forcee ou a d6liberement neglige de tenir compte d'informations qui
I'indiquaient c1airement, et qui

ii)

n'a pas pris toutes les mesures necessaires et raisonnables qui etaient en son
pouvoir pour empecher ou faire cesser la disparition forcee, ou pour en
reprimer l'execution ou en rMerer aux autorites competentes aux fins d'enquete
et de poursuites.

3 (ancien article 6) L'ordre d'un superieur hierarchique
8tre invoque pour justifier une disparition forcee.

OU

d'une autorite publique ne peut

Article 4
J. TOllt Etat partie rend la disparition forcee passible de peines appropriees qui prennent en
compte son extreme gravite.

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2. TOllt Etat partie peut prevoir :
a) Des circonstances attenuantes notamment en faveur de ceux qui, it:npliques dans la
commission d'une disparition forcee, amont contribue efticacement' a la recuperation
en vie de 1<1 personne disparue ou auront permis d' elucider des cas de disparitions
forcees au' d'identifjer les <luteurs d'une disparition forcee.
b) (compUte) Des circonstances aggravantcs, notamment en cas de deces de la victime
OLl envers ceux qui se sont rendus coupables d'une disparition forcee a J'encontre de
femmes enceintes, de minems ou d'autres personnes particulierement vulnerabJes.
Article 5 (modijie)
Sans prejudice de I'article 2 bis,
I. Tout Etat Partie qui, it J'egard de In disparition forcee, upplique un regime de prescription,
prend les mesures n6cessaires pour que Ie d61ai de prescription de J'action penale :
a) soit de longue duree et proportionnc

a I'extreme gravite de cette infraction;

b) commence a courir Jorsque Ie crime de disparition forcee cesse et que Ie sort de In
personne disparue est etabli.
2. Le delai de prescription de I'action penale prevue au paragraphe I est suspendu aussi
longtemps que, dans un Etat partie, toute victime d'une disparition forcee ne dispose pas
d'un recours utile.
Article 6 (repris dans art. 3, § 3)
Article 7 (supprime)
Article 8 (supprime)
Article 9 (restructure et modij'ie)
I. Tout Etat Partie prend les mesures necessaires pour etablir sa competence aux fins de
connuitre d'une disparition forcee :
a) quand I'infraction a ete commise sur tout territoire relevant de sa juridiction ou a bord
d'un navire baltant son pavilion ou d'u'n aeronef immatricule conformement it sa
legislation au moment des faits;
b) guand I'auteur presume de I'infraction est I'un de ses ressortissants, ou une personne
apatride residant habitucllement sur son territoire ;
c) quand In personne dispame est I'un de ses ressortissants et que eet Etat partie Ie juge
approprie;
2. TOllt Etat partie prend egulement les mesures necessaires pour etablir sa competence aux
fins de connaitre d'une disparition forcee quand I' auteur presume de I'infraetion se trouve

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sur tout territoire relevant de sajuridiction, sauf s'jl I'extrade ou Ie remet a un autre Etat,
ou s'ille remet a nne juridiction penale internationale dont it a reconnu Ia competence.

3. [Le present illstrumellt] n'ecarte aucune competence penale exercee conformement aux
lois nation ales.
Article 10
I. S'jl estime que les circonstances Ie justifient, apres avoir examine les renseignements dont
il dispose, tout Etat partie sur Ie territoire duquel se trouve nne personne souperonnee
d'avoir commis l.1ne disparition forcee assure la detention de cette personne ou prend
toutes autres mesures juridiques necessaires pour assurer sa presence. Cette detention et
ces mesures doivent etre conformes a la legislation dudit Etat partie; eltes ne peuvent etre
maintenues que pendant Ie de-Iai necessaire 11 I'engagement depoursuites penales ou d'une
procedure d'extradition.
2. L'E!a! partie qui a pris les mesures visees au paragraphe I procCde immediatement a une
enquete en vue d'etablir les faits. II informe )es Etats parties qui pourraient etre
competents conformement a I'article 9, paragraphe I des mesures qu'j) a prises en
application du paragraphe I du present article, notamment la detention et les circonstances
qui Ia justifient, et des conclusions de son enquete, en leur indiquant s'i1 entend exercer sa
competence.
3. Toute personne detenue en application du paragraphe 1 peut communiquer
immediatement avec Ie plus proche representant qualifie de I'Etat dont elle a la nationalite
ou, s'i1 s'agit d'une personne apatride, avec Ie representant de J'Etat OU eUe reside
habi tuellement.

Article 11
I. L'Etat partie sur Ie territoire sous la juridiction dllquell'auteur presume d'une disparition
forcee est decouvert, s'iI n'extrade pas ce demier, ne Ie remet pas aun autre Etat ou s'il ne
Ie remet pas a une jl1ridiction penale intemationale dont il a reconnu )a competence,
soumet I'affaire ases autorites competentes pour I'exercice de I'action penale.
2. Ces autorites prennent leur decision dans les memes conditions que pour toute infraction
de droit commun de caractere grave en vertu du droit de eet Etat partie. Dans les cas vises
a I'article 9, paragraphe 2, les regles de preuve qui s'appliquent aux poursuites et a la
condamnation ne sont en aucune fa~on mains rigoureuses que celles qui s'appliquent dans
les cas vises a I'article 9, paragraphe I.

3. (modijii) Toute personne poursuivie pour une disparition. forcee est jugee par une
juridiction competente, independante et impartiale, etablie par la loi, et qui respecte les
garanties du proces equitable.
4. (nouveau) Toute personne poursuivie pour une disparition forcee beneficie de la garantie
d'un traitement equitable a tous les stades de la procedure.

Article 12 (modijie)

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I. Tout Etat partie aSSllrt: a quiconque alleguant qu'une personne a 6te victime d'une
disparition forcee Ie droit de denoncer les t~lits devunt tine autorite competente, laquelle
procede immediatement il une enquete approfondie et impaitiale. Des mesures appropriees
sont prises Ie cas echeant pour assurer la protection du plaignant, des temoins, des proches
de la personne disparue et de leurs defenseurs ainsi quede ceux qui participent a I'enquete
contre tout mauvais traitement ou toute intimidation en raison de la plainte deposee ou de
toute deposition faite.
2. Lorsqu'il existe des motifs raisonnables de croire qu'une personne a ete victime d'une
disparition forcee, tout Etat partie soumet I'affaire it I'autorite visee au paragraphe I, afin
qu'eHe ouvre une enquete, meme si aucune plainte n'a ete officielJement deposee.
3. (nollveau) Tout Etat partie veilJe ace que I'autorite visee au paragraphe I :
a) dispose des pouvoirs et des ressources necessaires pour mener l'enquete Ii bien, y
compris par la comparution de personnes soupyonnees ou de temoins,
b) ait communication des informations necessaires ason enquete ;
c) ait acces

a tout lieu ou In presence d'une personne disparue est sOllpyonnee.

4. (ancien art. 121 § 6 complete) Tout Etat partie prend les mesures necessaires pour
. prevenir et sanctionner Jes actes de nature a entraver Ie deroulement des enquetes. II
s'assure notamment que lel' personnes soupyonnees d'avoir commis une disparition forcee
ne soient pas en mesure d'influer sur Ie cours des enquetes par des pressions et des actes
d'intimidation ou de represailles exerces sur Ie plaignant, les temoins, les peoches de la
personne disparue et de leurs defenseurs ainsi que sur ceux qui participent a I'enquete.
5. (nouveau) L'enquete prevue au present article est conduite conformement aux prineipes
internationaux en matiere d'enquete en cas de violation des droits de I'homme, de torture,
de recherche des personnes disparues, d'examen Iegiste et d'identification.

Article 13 (modifie)
I. Pour les besoins de I'extradition entre Etats parties, la disparition foreee n'est pas
consideree comme une infraction politique, comme une infraction connexe a une
infraction politique ou coltlmc urie infraction inspiree par des mobiles politiques. En
consequence, une demande d'extradition fondee sur une telle infraction ne peut etre
refusee pour ce motif.
2. La disparition forcee est de plein droit comprise au nombre des infractions donnant lieu a
extradition dans tout tmite d'extradition conclu entre des Etats parties avant I'entree en
vigueur [du present instrument].
3. Les Etats parties s'engagent a inclure la clisparition forcee au nombre des infractions qui
justifient I'extradition dans tout traite d'extradition aconclure par la suite entre eux.
4. Tout Etat partie qui assujettit I'extradition a I'existence d'un traite peut, s'il re~oit une
demande d'extradition d'UI1 autre Etat partie auquel it n'est pas lie par un traite, considerer

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[Ie present instrument] comme la base juridique necessaire pour I'extradition en ce qui
concerne la disparition forcee.

5. Tout Etat pattie qui n'assujettit pas I'extradition
disparition forcee com me sllsceptible d'extradition.

a I'existence d'un

traite reconnai't In

6. L'extradition est, duns tous les cas, subordonnee aux conditions prevues par Ie droit de
I'Etat partie requis ou par les traites d'extradition applicables, y compris, notamment, aux
conditions concernant la peine minimale requise pour extrader et aux motifs pour lesquels
I'Etat partie requis peut refuser I' extradition, ou I'assujettir ncertaines conditions.
7. Aucune disposition [du present instrument] ne doh etre interpretee comme faisant
obligation a I'Etat partie requis d'extrader s'i1 a de serieuses raisons de penser que la
demande a ete presentee nux fins de poursuivrc ou de punir une personne en raison de son
sexe, de sa race, de sa religion, de sa nationalit6, de son origine ethnique ou de ses
opinions politiques, ou que donner suite a ce'tte demande causerait un prejudice a cette
personne'pour l'une quclconque de ces raisons.
Article 14 (modijie)

I. Les Etats parties s'accordent I'entraide judiciaire la plus large possible dans toute enquete
ou procedure penale relative a une disparition foreee. y compris en ce qui concerne ]a
communication de tous les elements de preuve dont i1s disposent et qui sont necessaires
aux fins de Ia procedure.
2. Cette entraide judiciaire est subordonnee aux conditions prevues par Ie droit interne de
l'Etat partie requis ou par les traites d'enlraide judiciaire applicables, y compris,
notamment, concernant les motifs pour lesquels l'Etat partie requis peut refuser
d'accorder I'entraide judiciaire ou la soumettre a des conditions.
Article 15 (modijie)

Les Etats partie cooperent entre eux et s'accordent I'entraide la plus large possible
pour porter assistance aux victimes des disparitions forcees et dans la' recherche, la
localisation et la liberation des personnes disparues et, en cas de deces, dans I'exhumation,
I'identification des personnes disparues et la restitution de leurs restes
Article 15 his (ancien article 21)
1. Aueun Etat partie n'expulse, ne refou1e ni n'extrade une personne vers un autre Etat s'i1 y
a des motifs serieux de croire qu'elle risque d'etre victime d'une disparition forcee.

2. Pour determiner s'i! y a de tels motifs, les autorites competentes tiendront compte de
toutes les considerations pertinentes, y eompris, Ie cas echeant, de I'existence, dans I'Etat
interesse, d'un ensemble de violations systematiques des droits de l'homme ou du droit
humanitaire, graves. flagrantes ou massives.
Article 16 (restructure et mo(lijie ; cf. article 16 bis)

I. Tout Etat partie, dans sa It~gislation,

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a) d6signe ks agents ~e I'Etat habilites

7

aordonner des privations de Iiberte ;

b) determine les conditions dans lesquelles de tels ordres peuvent etre donnes ;
c) garantit que totlte personne privee de liberte sera placee llniquement dans un lieu
officieJlement reconnu et cOlltrole ;

d) garantit I' acees des autorites judiciaires aux Iieux de privation de liberte ;

a

e) garantit toute personne privee de Iiberte, en toute circonstance, Ie droit d'introdiJire
un recours devant un tribunal afin que celui-ci statue bref delai sur la legalite de sa
.privation de liberte et ordonne sa liberation 5i cette privation de Iiberte est iIIegale.

a

2. Tout Etat partie ctablit et tient a jour un ou plusieurs registres officiels des personnes
privees de libette. Figurent au moins parmi ces informations:
a) I'identite de la personne privee de liberte,
b) I'autorite ayant decide la privation de liberte,

c) )'autorite assurant Ie controle de la privation de Iiberte,

d) Ie jour et I'heure de I'admission dans Ie lieu de detention et I'autorite responsable du
lien de detention,
e) Ie jour et l'heure de la liberation ou du transfert vers un autre lieu de detention, fa
destination et "autorite chargee du transfert.

Article 16 his
I Tout Etat partie garantit a la personne privee de Iiberte et a ses proches. a leurs
representants Jegaux, leurs avocats et toute personne mandatee par eux ainsi qu'a toute
autre personne pOllvant arguer d'un interet legitime un acces au moins aux informations
suivantes:

a

a

a) I'autorite a laquelle In personne a ete deferee ;

b) I'autorite ayant ordonne la privation de Iiberte ;

c) I'autorite assurant Ie controle de la personne privee de Jibertc ;
d) Ie lieu

au se trollve la personne privee de liberte, y compris en cas de transfert ;

e) la date et Ie lieu de liberation;
f) I'etat de sante et, en cas de deces, les circonstances et causes du deces.

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2. Des mesures appropnees sont prises Ie cas echeant pour assurer la protection des
personnes visces au paragraphe I ainsi que de ceux qui participent a I'enquete contre tout
mauvais trait~ment, toute intimidation ou toute sanction en raison de la recherche
d'jnformation concernant tlne personne privee de (iberte.

a

Ia vie privee despersonnes concernees, les
informations foumies conformement au paragraphe I du present article devront etre adequates
et pertinentes par rapport a la tinalite recherchee et ne devront pas etre utilisees a des fins
autres que la recherche de la personne privee de Iiberte.
3. (nouveau) Afio de ne pas porter atteinte

Article 17
Sans prejudice de I'examen de Ia legaJite de la privation de liberte d'une personne, rEtat
partie gamntit aux proches de la personne privee de liberte au de la personne disparue, nux
representants legaux, aux avocats ct a loute personne mandatee par la personne privee de
liberte au par In personne disparue ou par ses proches ainsi qu'a toute autre personne pouvant
arguer d'un interet legitime Ie droit a un recours prompt et effectif pour obtenir it bref delai les
informations vi sees a I'article '6 bis. Ce droit a un recours ne peut etre suspendu au limite en
aucune circonstance.

. Article 18 (compUte)
Tout Etat partie prend les mcsures necessaires pour que la remise en liberte d'une personne se
deroule selon des modalites qui permettent de verifier avec certitude qu'eUe a ete
effectivement liberee. Tout Ewt partie prend egalement les mesures necessaires pour assurer
J'integrite physique et Ie plein exercice de ses droits a toute personne au moment de sa remise
en Iiberte,sans prejudice des obligations auxquelJes eUe peut etre assujettie en vertu de la loi.

Article 19
Tout Etat partie prend les mesures necessaires pour prevenir et sanctionner des agissements
suivants ;
a)

l'entrave au J'obstruction au recours vise a I'article 17 ;

b)
Ie manquement a ('obligation d'enregistrement de toute privation de IibertC, ainsi que
"enregistrement de toute information dont I'agent responsabJe du registre officiel connait ou
devrait conna'ltre I'inexactitude ;
c)
Ie refus oppose par un agent de fournir des infonnarions sur une privation de liberte,
ou la fourniture d'informations inexactes, a10rs meme que les conditions legales pour fournir
ces informations sont reunies.

Article 20 (complete)
I. Tout Etat partie veille 11 ce que la formation du personnel civil au militaire charge de
l' application des lois, du personnel medical, des agents de la fonction publique et des
autres personnes qui peuvent intervenir dans la garde au Ie traitement de toute personne

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privee de liberte, puisse inclure l'enseigncment et I'information necessaires concernant les
dispositions Cd/{ pr(~se/lf rnst1'llmellf], en vue de :
a) prevenir I'implication de ces agents dans des disparitions forcees ;
b) souligner I'importance de In prevention et des enqueles en matiere de disparition
forcee;
c) veiller ace que I'urgence de la resolution des cas de disparition forcee soit reconnue.
2. Tout Etat veille a ce que soient interdits les ardres ou instructions prescrivant, autorisant
au encourageant une disparition forcee. Tout Etat gurunti! qu'une personne refusant de se
conformer a un tel ordre ne sera pas sanctionnee.
3. Tout Etat partie prcnd les mesures necessaires pour que les personnes VI sees au
paragraphe I qui ant des raisons de penseI' qu'une disparition forcee s'es! produite.ou est
projetee signalent Ie cas a leur superieurs et, au besoin, nux autorites ou instances de
controle ou de recours competentes.

Article 21 (integre a l'article 15 bis)
Article 22 (modijie.et complete)
I. Aux fins du [present instrument]. on· entend par victime la persanne disparue et toute
personne physique ayant subi un prejudice direct du fait de cette disparition.
2. Tout Etat partie prend les mesures necessaires afin que toute victime ait connaissance de
la verite concernant les circonstances de la disparition forcee et Ie sort de la personne
diSparue. II prend en particulier les mesures necessaires pour la recherche, la localisation
et la liberation des personnes disparues et, en cas de deces. la restitution de leurs restes.
3. Tout Etat partie garantit a la victime d'une 'disparition foreee Ie droit d'obtenir une
reparation rapide, equitable et adequate des dommages qui lui ont ete causes.
4. Le droit d'obtenir une rep!!ration vise au paragraphe 3 comprend I'indemnisation integrate
des dommages materiels et moraux. II peut allssi incJure notamment :
a) la restitution,
b) la readaptation,
c) la satisfaction,
d) Ie retabJissement de In dignite et de la reputation.
5. Sans prejudice de I'obligation de poursuivre I'enquete jusqu'a I'elucidation du sort de la
personne disparue, tOllt Etat Partie prend les meSllres necessaires concernant la situation
legale des personnes dispames dont Ie sort n'est pas €lucid6 et de leurs pro~hes, dans des
domaines tels que la protection sociale, les questions financieres, la garde des enfants et
les droits de propriete.

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Article 23 (complete)
I. Tout Etat partie prend les mesures necessaires pour prevenir et reprimer penalement :

a) I'enlevernent Oll l'appropriation d'enfants victimes de disparition forcee, d'enfants
dont Ie pere Oll la mere sont victimes d'une disparition forcee, ou d'enfants nes
pendant la captivite de leur mere victime de disparition forcee ;
b) la falsification oula destruction de documents attestant la veritable identite des enfantS

vises au a).
2. Tout Etat partie prend les mesures necessaires pour rechercher et identifier les enfants
vises au paragraphe I a) ct b).

Article 24
Les Etats parties se pretent mutuellement assistance dans la recherche, I'identification et la
determination du lieu ou se trouvent les enfants vises a I'article 23.

Article 25
I. Lorsqu'un enfant enleve Oll approprie dans les conditions de l'article 23 a} est retrouve sur
Ie territoire d'un Etat partie, la question de son eventuel retour vers sa famille d'origine est
reglee, soit par la loi nationale de cet Etat partie, soit par l'accord bilateral ou multilateral qui
Ie lie avec tout autre Etat dans Jequel reside la famille d'origine.
2. En toute circonstance. I'interet superieur de J'enfant est nne consideration primordiale et
renfant qui est capable de discemement a Ie droit d'exprimer libtement son opinion, laquelle
est dament prise en compte eu egard a son age et it. son'degre de maturite.

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II

Partie II
Article II 0 (nouveau)
I. Un [orgalle de slIivi} assure Ie suivi de lu mise en ceuvre du present instntment et du respect
par les Etats parties de leurs engagements.
2. Les membres de [['org(me de slIivi] beneficient dans J'exercice de leur mandat des
privileges et immunites tels qu'its sont enonces dans la convention sur les privileges et
immunites des Nations Unies.
3. Tout Etat partie s'engage u cooperer avec [I'organe de suivi] et
membres dans I'exercice de leur mandat.

a prater assistance a ses

Article 1[·A (modifU)
l. TOllt Etat partie presente [d l'organe de .I'uivi], par I'entremise du Secretaire general de
l'Organisation des Nations Unies, un rapport sur les mesures prises pour donner effel a ses
obligations en vertu [du present instrument], dans un delai d'un an a compteI' de J'entree
en vigueur [du present instrument] ason egard.

2. Le Secretaire general de l'Organisation des Nations Unies transmet les rapports it tous les
Etats parties.
3. Chaque rapport est etudie par [l'organe" de suivi], qui peut faire les commentaires, les
observations, les recommandations et les mises en garde qu'il estime appropries. VEtat
partie interesse reyoit communication des commentaires, observations, recommandations
et mises en garde, auxquels iI peut repondre, de sa propre initiative ou Ii la demande [de
I'organe de SUiVll
Article II-B (modifie)
l. [L'organe de suivi] pellt etre saisi par un Etat partie, au par les proches de la personne
disparue, leurs representants legaux, leurs nvocats et toute personne mandatee par eux
ainsi que toute autre personne pouvant arguer d'un interet legitime, d'une demande visant
achercher et retro~ver llne personne disparue au sens de I'article premier.

2. S'il estime que la demande presentee en vertu du paragraphe I n'est pas manifestement
depourvue de fondement. qu'eJle ne constitue pas un abus de droit et qu'elle n'est pas
incompatible avec les dispositions [du present instrument), [l 'organe de SUiVIJ demande it
tout Etat partie de lui foumir, dans un delai qu'jl fixe, des renseignements sur la situation
de cette personne.
3. Au Vll de la reponse fOllrnie par I'Etat partie interesse conformement au paragraphe 2,
[l'organe de suivi] presente it ce dernier une recommandation ou' une mise en garde. II
peut aussi lui enjoindre de prendre des mesures adequates et de lui en faire rapport, dans
un delai qu'il fixe.

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4. [L'orgal1e de suivi] etablit ses conclusions et les communique a tout Etat partie auquel des
renseignements ont ete demandes et al'lluteur de la demande visee au paragraphe I.

5. La procedure visee par Ie present article est confidentielle.
Article Il-C (modijie)
J. S'il estime qu'un deplacement sur Ie territoire d'un Etat partie sous la juridiction duque1
se trouverait la personne dispanle est indispensable pour repondre ala demande dont it est
saisi confonnement a I'urticle II-B, [l'organe de suivll peut demander a un ou plusieurs de
ses membres de realiser tine mission d'enquete et de I'informer sans retard. Le ou les
membres [de l'organe de suivl1 qui effectuent la mission peuvent se faire accompagner, si
necessaire, par des interpretes, des secretaires et des' experts. Aucun membre de la
delegation, 11 I'exception des interpretes, ne peut etre ressortissant de J'Etat partie dans
lequel la vh,ite est effectuee.

2. [L'orgalle de suivi] notitie par ecrit a rEtat partie concerne son intention d'organiser une
mission d'enquete et indique la composition de la delegation. VEtat partie fait connaitre
sans retard a [l'organe de suivl1 son accord au son opposition a la mission d'enquete sur
un territoire sur lequel iI exerce sa juridiction.

a

3. Si I'Etat partie a donne son accord la mission d'enquete, il fournit [a l'organe de suivi]
toutes facilites necessaires al'accomplissement de cette mission. [L'organe de suivtl peut
notamment:

. a) Effectuer les visites qu'il jugera necessaires pour chercher et retrouver la personne
disparue;
b) EntreI' en contact Iibrement avec toute personne dont iJ pense qu'elle peut lui fournir
des informations utiles sur Ie sort de la personne disparue ;

c) S,e faire presenter la personne dont la disparition forcee est alleguee et s'entretenir
avec cUe sans temoin et de farron confidentielle.

4. [L'or&ane de suivi] fait part des constatations faites pendant sa mission d'enquete:
a)

AJ'Etat partie sur Ie territoire duquel la mission d'enquete a ete effectuee ;

b)

AI'auteur de la demande visee aI'article II-B. paragraphe I.

5. La procedure visee par Ie present article est confidentielle.
Article lIe bis (nouveau)
I. Si [l'organe de suivi] rerroit une communication presentee par les proches de la personne
disparue, leurs representants legaux, leurs avocats et toute personne mandatee par eux ainsi
que toute autre personne pouvant arguer d'un interet legitime, faisant etat de graves
manquements d'un Etat partie a ses engagements au titre du [present instrument], il peut s'en
saisir sauf si :

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<I) In communication est insuftisammcnt rnotivee. ou manifestement depourvue de
fondcmcl1t;

b) Ja meme question est en califs d'examen dans une autre instance internationale
d'enquete au de reglement ;
c) Ie plaignant n'a pas epuise toutes les voies de recours cffectifs internes.
2. S'il estime que_ la communication est confOlme nux conditions fixees au pnragraphe I,
[l'organe de suM] transmet tl IrEtat partie concerne cette communication et lui demande de lui
fournir, dans un delai qu'it fixe, ses observutions et commentaires.
3. Au vu de !a reponse de l'Etat partie, [l'organe de suivi] peut decider:
a) de dasser la communication:
b) de poursuivre son examen ;
'c) d'adresser a l'Etat partie une recommandation.

4. [L'organe de suivi] met fin ii la procedure visee au present article en eommuniquant a I'Etat
partie conceme et a ]'auteur de la communication, les conclusions de son enquete.
S. La procedure visee par Ie present article est confidentielle.

Article 11 C ter (nouveau)
Si [l'organe de suivt] re~oit des renseignements qui lui semblent contenir des indications bien
fondees 'selon lesquelles la disparition forcee est pratiquee de maniere generalisee ou
systematique sur Ie territoire d'lln Etat partie, it peut saisir Ie Secretaire General des Nations
Unies, apres avoir recherche aupres de l'Etat partie coneerne toute information pertinente sur
cette situation et sur les mesures prises pour faire cesser immediatement de telles pratiques

Article II D (integre al'article II 0 § 2)
Article Il·E (complete)
l. (L' organe de suivl] n' est competent qu'u l' egaI'd des privations de libert6 ayant d6bute
post6rieurement !'entree en vigueur [du present instrument].

a

2. Si un Btat devient partie [au present instrument] apres I'entree en vigueur de celui-ci, ses
obligations vis-a-vis [de !'organe de suivi] ne concernent que les privations de liberte
aynnt d6bute posterieurement a I'entree en vigueur [du present instrument] ason egard.

3. (nouveau) TOllt Etat pU11ie peut. a tout moment, declarer qu'il reconnait, pour ce qui Ie
concerne, a [l'orgwle de suivi] une competence concernant les disparilions forcees ayant
debule anterieurement it l'entree en vigllellr du [present instrument].

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Article ll-F (modijU)
I. [L'organe de suivi] presente nux Blats parties et

a t' Assemblee generale de l'Organisation

des Nations Unies un rapport annuel sur les aClivites qu'il aura realisees en application [du
present illstrument].

2. (nouveau) Si leI' procedures engagees au titre des article II B et II C bis revelent un refus
manifeste de cooperer de la part de I'Etal partie conceme ou ne se traduisent par aucun resultat
effectif, [i'organe de SUiVl] peut "decider de rendre publique une observation relative a la
question ou a la situation dont iI a eu aconnuitre.
3. (nouveau) La publication de I'observation visee au § 2 du present article doit etre
prealablement annoncee l'Etat partie concerne et accompagnee des reponses. commentaires
ou observations transmis par "Etat partie a [l'organe se .\'UiVlt dans Ie delai que celui-ci aura
fixe.

a

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Partie III
Article 1I1~0 (ancien article 2 § 2)

[Le present instrument] est suns prejudice de tout autre instrument international au de loute loi
nationale qui contient ou peut contenir des dispositions de portee plus (arge.
Article 111-0 bis (nouveau)

Les informations person nelles, y compris les donnees medic ales au genetiques, qui sont
transmises dans Ie cadre de la recherche d'unc personne disparue ne pellvent pas etre utilisees
a d'alltres fins que celie de la recherche de la personne disparue.
Article Ill-A

I. [Le present illstrumellf] est ouvert a la signature de [... ].
2. [Le present instrument] est soumis a la ratification de [... J. Les instruments de ratification
seront deposes aupres du Secretaire general de l'Organisation des Nations Unies.

3. [Le presem instrument] est ouvert a I'adhesion de [...). L'adhesion se 'fera par 1e depot
d'un instrument d'adMsion aupres du Secretaire general de l'Organisation des Nations
Unies.
Article lII-B

1. [Le present instrument] entrera en vigueur Ie trentieme jour apres la date du depot du
[Nemel instrument de ratification ou d'adhesion.
2. Pour tout Etat qui ratifiera [le p'resent instrument] au y adherera apres Ie depot du [Neme]
instrument de ratification Oll d'adhesion, [Ie present instrument] entrera en vigueur Ie
trentieme jour apres la date du depot par eet Etat de son instrument de ratification ou
d'adhesion.

Article III-C
Le Secretaire general de J'Organisation des Nations Unies notifi era a tous Jes Etats Membres
de "Organisation des Nations Unies et a tOllS les Elats qui auront signe [Ie present instrument]
ou y auront adhere:
.
a) Les signatures, les ratifications et les adhesions rec;:ues en application de J'article III-;
b) La date d'entree en vigueur [du present instrument] en application de I'article III-B.

Article lIl-D
Les dispositions [clu present instrument] s'appliquent. sans limitation ni exception aucune,'a
toutes les unites constitutives des Etats federaux.

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Article IlI- D ',is (nouveau)
I. Tout Etat, Ion; de In signature, de In ratification ou de I'accession, peut declarer que (le
present ilIstrumellt] s'etendrn 11 tout territoire dont iJ est responsable au titre des relations
intemationales. Vne telle declaration prendra effet lorsque [ie present il1strument) 'entrera en
vigueur pour l'Etat.conceme.

2. A tout moment, une telle extension pourra faire J'objet d'une notification adressee au
Secretaire general des Nations Unies et prendra effet, a compter de (...) apres le jour de
reception par Ie Secretairegeneral des Nations Vnies de cette notification.
Article III-E (integre

a['article I his § 2)

Article III-F
[Le present instrument] est sans prejudice des dispositions du droit international humanitaire,
y compris les obligations des Hautes Parties contractantes des quatre Conventions de Geneve

du 12 aOlH 1949 et ses protocoles facultatifs du 8 juin 1977, Oll de la possibilite qu' a tout Etat
d'autoriser Ie Comite international de Ia Croix rouge a visiter les Iieux de detention dans les
cas non prevus par Ie droit international humanitaire.
Article III· G
I. Tout Etat partie [au present instrument] peut proposer un amendement et deposer sa
proposition uupres du Secretaire general de l'Organisation des Nations Vnies. Le
Secretaire general communique la proposition d'amendement aux ,Etats parties [au
present instrument} en leur demandant de lui faire savoir s'ils sont favorables
I'organisation d'une conference d'Etats parties en vue de I'examen de la proposition et de
sa mise aux voix. Si, dans les quatre mois qui suivent la date d'une telle communication,
Ie tiers au moins des Etats parties se prononce en faveur de la teoue de ladite conference,
Ie Secretaire general organise la conference sous les auspices de l'Organisation des
Nations Doies. Tout amendement adopte a la majorite des deux tiers des Etats parties
presents et votants Ii la conference sera soumis par Je Secretaire general aI'acceptation de
tous les Etats parties.
'

a

2. Un amendement adopte seton les dispositions du paragraphe I du present article entrera en
vigueur lorsque les deux tiers des Etats parties [au present instrument] l'auront accepte
conformement a la procedure prevue par leurs constitutions respectives.
3. Lorsque les amendements entreront en vigueur, ils aUTOnt force obligatoire pour les Elats
parties qui les auront acceptes, les autres Elats parties demeurant lies par les dispositions
[du present instrument) et par tout amendement anterieur qu'ils auraient accepte.

Article III-H
1. [Le preSenT instrumenT], dont les textes anglais, arabe, chinois, espagnol, franyais et russe
font egalement foi, sera depose aupres du Secretaire general de J'Organisation des Nations
Vnies.
2. Le Secr6taire general de l'Organisation des Nations Unies fera tenir une copie certifiee
conforme [du present instrument] a tous les Btats.

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U.S. Government Informal Non~Paper on the Draft Enforced Disappearances Text
In response to the Chairman's kind request for comments on the above-referenced draft·
text, the U.S, Mission takes pleasure in presenting the following informal comments and
observations, These comments are not 'exhaustive, nor intended to be, but rather
highlight the principal issues of greatest concern to us that are raised by the Chairman's
draft text ("2003 draft").
At the outset we express appreciation to the Chairman for some very significant
proposals in his text, both in terms of what is included and what is omitted. We note in
particular that unlike the 1998 Su~commission forced disappearances text, the Chair's
2003 draft eliminates problematic references to:

--prohibiting the death penalty.
--prohibiting military tribunals.
--prohibiting amnesties and pardons.
--prohibiting treaty reservations.
--requiring criminalization of ·crimes against humanity,

11

Still. as noted above, the 2003 text contains matters of serious concern to the United
States. These include, inter alia:

(,

ARTICLE ONE. Definition of forced disappearance is far too broad ("deprivation of a
person's liberty through any means whatsoevel') and could not be a basis for a criminal
offense under United States,law and jUrisprudence. Nor, in our view, could that
definition provide an appropriate basis for a criminal offense in any country whose
jurisprudence requires, as a matter of due process and fairness, that a criminal offense
be defined in precise terms. Absent the requisite clarity, such vague definitions would
be stricken by the courts for being too broad and vague. The definition regrettably would
also cover non-State actors, which the United States firmly opposes.
A possible alternative could be the follOWing:
"the arrest, detention or abd!Jction of persons by, or with the authorization, support or
acquiescence of, a State, followed by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of those persons, with the
intention of removing them from the protection of the law for a prolonged period of time."
ARTICLE TWO. To the extent that the paragraph requires enactment of a specific crime
denominated "forced disappearance,· as it appears to do, it could make the treaty
unworkable under the United States system of federalism. Rather, we would support the
formula contained in the Convel')tion against Torture: to require criminalization of "acts"
of torture, here "acts of forced disappearance." We fail to see Why such a formulation
should be regarded as being less effective or appropriate (for both federal and nonfederal states) in this context when the international community has widely embraced it
to suppress the heinous offense of torture.
ARTICLE FIVE. This provision would require a statute of limitations for disappearances
that is "the longest period possible under its domestic raw." In the United States this
wOl;lld amount to NO statute of limitations, as for instance is the case with murder in

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several state jurisdictions. To the extent such a period of prescription is considered
highly disproportionate to the gravity of the offense under United States law (for
example, in the case of a forced disappearance not involving torture or murder),
legitimate concerns about fairness and equity would be raised, inclUding due process
challe':lges to the statute of limitations by the defendant.
ARTICLE SIX. Disallows an "obedience to orders" defense. As discussed during earlier
negotiating rounds, certain States believe that such a defense could be appropriate in
circumstances where the superioLorder is not manifestly unlawful.

f·;·""t{t'l.~· 11"-£ +o~

ARTICLE SEVEN. ,severely restricts amnesties and pardons and makes them
inapplicable to thelr-eceipt of compensation. During negotiations, several States wisely
voiced the view that amnesties and pardons are peculiarly a matter of domestic law,
especially pardons, which are typically subject to the exclusive authority of the President,
Governor, or other chief executive authority.
ARTICLES NINE & ELEVEN. Requires four mandatory bases of jurisdiction, i.ncluding
quasi·unive~sal ("present in") jurisdiction. This leaves little flexibility to the States Parties
and may require an extra-territorial jurisdictional reach far broader than many States
would be willing to exercise.
.
ARTICLE TWELVE <THREE). The requirement of "access [by an investigator] to all
places where the disappeared person may be found" requires serious study and appears
problematic under United States law, including anti-terrorism law.
ARTICLE TWELVE (FOUR) and SIXTEEN (TWO) and SEVENTEEN. Requires that
information be given about a disappearances investigation to "all persons with a
legitimate interest in the matter." This would appear to transgress statutes protecting the
confidentiality o~ law enforcement methods and sources and material witness protections .
and may intrude upon other privacy protections in the United States.
('..j-o~

ARTICLE FIFTEEN. Clarification would be required\that these provisions for law
enforcement assistance and cooperation would not require cooperation with international
tribunals regarding which a State is not legally bound to cooperate.
ARTICLE NINETEEN. Requires criminalization of the failure to provide information and
the like; th' is a provi~ion that would need to be mad.e substantially more precis~ and
~~/ ~~.--('-:t.)
targeted. \l ~-- () 1.J ~~ ·1.·140W ; ¥~

t

ARTICLE TWENTY-ONE. The non-refoulement provision needs to be made consistent
with applicable standards and principles such as inclusion of the word "substantial"
before "reason to.believe."
These comments again are not exhaustive but do highlight some of the initial concerns
of the United States raised by the 2003 draft, based on an informal translation of that
text into English.
Thank you.
December 2, 2003
Geneva

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DRAFT
Enforced or involuntary disappearances
The Commission on Human Rights,
Recalling its resolution 20 (XXXVI) of 29 February 1980, in which it decided to establish
a working group eOHsisting offive of its members, to serve as experts in their individl:lel capacity,
to examine questions relevant to enforced or involuntary disappearances, its resolution 1995/75
of 8 March 1995 on cooperation ...iith representati,t'es of Unitedl>Jations humaR rights organs, and
its resolmioAs 20011460[23 April 2001 and 2002/41 0[23 April 2002,
Recalling a/so GeneralAssembly resolution 47/133 of 18 December 1992, by which
theAssembly adopted the Declaration on the Protection of All Persons, from Enforced
Disappearance as a body of principles for all States, and Assembly resolution 57/215
ofl8Deeember 2002,
Recflllir?gjunher Economic aHd Social Col:tncil decision 20011221 of4 June 2001 ift
which the Cotmoil endorsed the decision of the Commission to establish an intersessiOflal opea
ended working group oHao CommissioH. with the maRdete to elaborate a draft legally bindiflg
aorml%tive instrnment for the proteetiofi of all persons from enfurced Eliseppeamnce,

Deeply concerned in particular by the increase in enforced or involuntary disappearances

in various regions of the world, including arrest, detention and abduction, when these are part of
or amount to enforced disappearances, and by the growing number of reports concerning
harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons
who have disappeared,
Emphasizing that impunity is simultaneously one of the underlying causes of enforced
disappearances and one of the major obstacles to the elucidation of cases thereof and that there is
a need for effective measures to combat the problem of impunity,
Acknowledging the fact that acts of enforced disappearance are crimes against humanity,
as defined in the Rome Statute of the International Criminal Court (AiCONF.183/9),
1.
Takes note of the report submitted by the Working Group on Enforced or
Involuntary Disappearances (E/CNA/2003170 anEl Cord anEl 2)(E/CN.4/2004/58), pUFSUaAt to
Commission feso}utioa2002/41; and notes the recommendations made by the Workiltg Group
011 tI,e development ofnallO/lal institutions, on preventive measures and 011 the jight against

impunity,.

.

Ibis. Recalls the importance ofthe implementation ofits resolution 20001109 on the
strellgthelling oft/~e effectiveness ofthe Commission Oil Human Rights mechanism;

. 2.
Stresses the importance of the work of the Working Group and encourages it in the
execution of its mandate:
To continue to promote communication between families of disappeared persons
and the Governments concerned with a view to ensuring that sufficiently documented and clearly
identified individual cases are investigated and to ascertain whether such information falls under
its mandate and contains the required elements;
(a)

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(b)
To continue to observe, in its humanitarian task, UnitedNations standards and
practices regarding the handling of commun!cations and the consideration of government replies;

To continue to consider the question of impunity in the light of the relevant
provisions of the Declaration on th~,Protection of All Persons from Enforced Disappearance and
of the final reports submitted by the Special Rapporteur appointed by the Sub-Commission on the
Promotion and Protection of Human Rights;
(c)

(d)
To continue to pay particular attention to cases of children subjected to enforced
disappearance and children of disappeared persons and to cooperate closely with the
Governments concerned in searching for and identifying these children;

(e)
To pay particular attention to cases transmitted to it that refer to ill-treatment,
serious threatening or intimidation of witnesses of enforced or involuntary disappearances or
relatives of disappeared persons;

(f)
To pay particular attention to cases of disappearance of persons working for the
promotion and protection of human rights and fundamental freedoms, wherever they occur, and
to make appropriate recommendations for preventing such disappearances and improving the
protection of such persons;
(g)
To continue to apply a gender perspective in its reporting process, including in
infonnation collection and the formulation ofrecommendations;
(h)
To provide appropriate assistance in the implementation by States of the
Declaration and of the existing international roles;
.

To continue its deliberations on its working methods and to include these aspects
in its report to the Commission at its sixtieth sixty first session;
(i)

3.
Deplores the fact that some Governments have never provided substantive replies
concerning the cases of enforced disappearances in their countries or aeted aft the
reeemmeftdatiefl:s eORecming them made ift the reports oflbe Working Group; and have 1I0t
followed up relevant recommendations concem;ng this subject in the reports ofthe Working
Group;
4.

Urges t:he ~'Iemmeftts cOftCerned States: .

(a)
To fully implement the Declaration on the protection ofall persons against
enforced disappearances;

To cooperate with the Working Group and help it to carry out its mandate
effectively, in particular by iHvitillg it freely to visit by we/coming it in their countries;

(a)

(b)
To intensify their cooperation with the Working Group on any action taken
pursuant to recommendations addressed to them by the Working Group;
.
.
(c)
To take steps to protect witnesses of enforced or involuntary disappearances and
the lawyers and families of disappeared persons against any intimidation or ill-treatment to which
.they might be subjected;

That have IOftg had matlj' unresolved cases ofdisappearaHces, to continue their
efforts to elucidate the fate of the disappeared cOHeerned and to set appropriate se~UemeHt
machinery in train with the families of those individuals;
(d)

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(e)
To' make provision in their legal systems for machinery for victims of enforced or
involuntary disappearances or their families to seek fair and adequate reparation;

5.

Reminds Governments:

(a)
That, as proclaimed in article 2 of the Declaration on.the Protection of All Persons
from Enforced Disappearance, no State shall practise, permit or tolerate enforced disappearances;
(b)
That all acts of enforced or involun!ary disappearance are crimes punishable by
appropriate penalties which should take due account of their extreme seriousness under penallaw;

(c)
That they should ensure that their competent authorities proceed immediately to
conduct impartial inquiries in all circumstances where there is reason to believe that an enforced
disappearance has occurred in territory under their jurisdiction;

(d)
That, if such belief is borne out, all the perpetrators of enforced or involuntary
disappearances must be prosecuted;
(e)
That impunity is simultaneously one of the underlying causes of enforced
disappearance and one of the major obstacles to the elucidation of cases thereof;

(f)
That. as proclaimed in article 11 of the Declaration. all persons deprived of liberty
must be released in a manner permitting reliable verification that they have actually been released
and, further, have been released in conditions in which their physical integrity and ability fully to
exercise their rights are assu'red;
6.

Expresses:

(a)
Its thanks to the many Governments that have cooperated with the Working Group
and replied to its requests for information and to the Governments that have itl'lited welcomed the
Working Group te-¥isit in their countries, asks them to give all necessary attention to the
Working Group's recommendations and invites them to inform the Working Group or any action
they take on those recommendations;
(b)
Its appreciation to the Governments that are il)vestigating, have developed or are
developing appropriate mechanisms to investigate any cases of enforced disappearance which are
brought to their attention, and encourages all the Governments concerned to expand their efforts
in this area;

7.
Invites States to take legislative. administrative. legal and other steps, including
when a state of emergency has been declared, to take action at the national and regional levels
and in cooperation with the UnitedNations, if appropriate through technical assistance. and to
provide the Working Group with concrete information on the measures taken an~ the obstacles
encountered in preventing enforced or involuntary disappearances and in giving effect to the
principles set forth in the Declaration;
8.
Takes note of the assistance provided to the Working Group by non-governmental
organizations and their activities in support of the implementation of the Declaration and invites
those organizations to continue their cooperation;
9.
Acknowledges with great concern the difficulties encountered by the Working
Group in the accomplishment of its mandate and requests the Secretary-General:

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(a)
To ensure that the Working Group receives all the assistance and resources it
requires to perform its function, including supporting the principles of the Declaration) carrying
out and following up on missions and holding sessions in countries that are prepared to receiveit;

To provide the resources needed to update the database on cases of enforced

(b)

disappearance;
(c)
To keep the Working Group and the Commission regularly informed of the steps
taken for the wide dissemination and promotion of the Declaration;

10.
Requests the Working Group to report on its activities to the Commission at i'ts
sixtieth session;
II,
Takes nete oftae report (E/CN.412002171) presented by the indepeadent e~q)ert
charged \-vith eXEm'lining the existing international eriminal and hHmaR rights frame-Nork for the
protection of persons frem enfureea or in'roluntary disappearances to the intersessional-worlcing
gr01:Jp with the mandate to elaborate a draft 1egall)' bindillg normati'fe iflstrnmeftt far the
proteetiofl oral! perSOflS from eflforeed disappeaFaflce, in aceordlHlee with Commissiofl
reso1utiollil 200V46 and 2002/41, as well as the eOlltribution ofthe Ghairpersoll Rapporteur of
the sessiollal working group OR the administration ofjustiee of the SuB Commission on the
Premotion and Preteetion efHuman Rights to the work of the intersessional .....orking groHP ill her
eapaeity as Rapporteur Ofl the question of the' draft intematiOfllH cOllvsntion Oft the protection of
aU persofls from enforeed disappearan.ee (transmitted By the Sub Commissioft in its resolution
1998/25 of26 August 1998;
,

12.
Ah6 takes note of the report of the Intersessional open-ended working group of the
Commission to elaborate a draft legally binding normative instrument for the protection of all
persons from enforced disappearance (ElCN.4,£2003nl E/CN.4/2004/S9) and welcomes the
substantial progress made during the.first seco"d session of the Intersessional Working'Group
and, in that context, welcomes the participation of non-governmental organizations;
13.
Requests the Intersessional Working Group to meet for a period oflOworking daYs
2 formal sessions before the sixtieth sixty first session of the Commission ift offiCi' to continue
for its work, ift aecoffilHlee with Commission resolatioas 2001l461Hld 2002141, and to report to
the Commission at its sixtieth sixty first session;
14,
Requests the Chairperson-Rapporteur of the Intersessional Working Group to
undertake informal consultations with all interested parties in order to prepare the next session of
the Intersessional Working Group;

15.

Requests the United Nations High Commissioner for Human Rights to invite the

6*Perts meaaoflee in pare:grapb 11 a13o'le the independent expert charged with examining the

existing international criminal and the II uman rights framework for the protection ofperso"s
from enforced or i"voluntary disappearances, the sub commission rapporteur on the questiOiI
of the draft international convention on the protection 0/ all persons from enforced
disappearance (E/CN.4/Sub.2/1998/19, annexe), and also a representative ofthe Working
Group Oil eliforced or involuntary disappearances to partiCipate in the activities of the working
group;

16.
Decides to consider this matter at its si*tieth sixty first session under the same
agenda item.

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1811131114
Question des disparltions forcees ou involontaires

La Commissioll des droits de "homme,
Rappe/ant sa resolution 20 (XXXVI) du 29 fevrier 1980, par laquelle eUe a decide de creer un groupe de travail
les
questions concernant les disparitions forcees ou involontaires;-5a.....re~Htul~eH-l-99M7-5-du-8-mafH ..99$-sl:lr-la
eem,pG5~~e-e-~'*t-Ge-ses-ltl~tnj.wes-ag~'S5at~HIHiiH{-q\:l!e~pe.FfS-n\)HltH&.H\-bi-l.~:e-pe-FS911Ht:H....:pour ex~miner

(!oopeFal:ieA-..t:w~~eS-Fepf(~5entiHlts-d!eI'b'ilnes-tie--l-!Gl:gHHtsat.j0fl-des-Natiens-blfti~s-ehAfb.es-des-dr-eils-tk."-l!I1Blnme;
a-insHtt{H~mie~)f+J.I4(HJu-2J-a~~<W4-klll
23 Ii'+'~,

Rappe/ollt egalemellt la resolution 47/133 de I'Assemblee generate, en date du 18 decembre 1992, par laquelle
I'Assemblee a adopte la Declaration sur la protection de toutes les personnes contre les disparitions forcees, en
tant qu'ensemble de principes qui doivent etre appliques par tous les Etats, afI1si que 11:1 nisolurioll 57/215. de
AAssemolee, en date Gl:I 18 deeembre 2002,
RtlfJPt'ltmf CII ()It{t'~en 2001/221 d~t!Boom-i~e-ef-See-jal, en date dl:l 'Ijuin 2001 .• daRS-lat~
Ie (:Ollseil a liiit sien~~n de la COllll1lissiofH:fcs droils de l'hoFl1llle de creer WI gfOupe cl~
tnfet'5<.>ssfOnS Ii 6Gmf:7<~t.j~'e.-(:lo'*-le-fHanda-l.-sentit d'61aborer l:J1l PfOj~R.tfll\:."'ffi-ttel'miitH·
e~gM~~iffi~es-pet:se~'OiltrlC les cliSr)afltkms fore0es,

Pro!ondement preoccupee en particulier. par Ja multiplication, dans diverses regions du monde, des disparitions
forcees ou invoJontaires, y compris les arrestations, detentions et enlevements, lorsque ces actes conduisent it des
disparitions forcees ou peuvent y etre assimiles, et par Ie nombre croissant d'informations faisant etat de mesures
de harcelement, de mlluvais traitements et d'actes d'intimidation al'encon1re des temoins de disparitions ou des
familIes de personnes disparues,
Souligllant que J'impunite est l'une des causes profondes des disparitions forcees et, en meme temps, I'un des
. obstacles majeurs it I'elucidation de ces cas, et qu'il est necessaire de prendre des mesures efficaces pour
combattre Ie phenomime de I'impunite,
Considerallt que les actes de disparition forcee constituent des crimes contre I'humanite, tels qu'i1s sont detinis
dans Ie Statut de Rome de la Cour penale intemationale (NCONF.183/9),

_1_._h-Prend acte du rapport du Groupe de travail sur les disparitions forcees ou involontaires
(E/CN.4/~P()2004J58),i*esen~n.f"'ffil~ffienHHf:l-res9MjoA2002/4.Hle--fa....GtHHffi+s&fen; et note les
I'ecommnndations dll groupe de travail concernant Ie c1eveloppcmcllt d'institltlions nationalcs, Ie:> mesures
prevcntivt:s ~t 10 IllIte conlrc I'imptillile.
2.

Rap/1e!!e f'i11lporLtmce de la mise en aml'I''' de sa d:SO!UI;017 ]()()O//O!J C01/cemanl Ie ren[iJrcemenl df.
f.£jJjc:acile des m(:(:(misJ/lI!.\' de 1(1 CommissioJl dC's tlm;l.\' de! /'homme

2, Sou/iglle l'importance des travaux du Groupe de travail et I'encourage, dans I'accomplissernent de son mandat:

A continuer de faciliter la communication entre les families des personnes disparues et les gouvernements
concernes, afin de veiller a ce que des cas bien documentes et clairement identifies fassent I'objet d'enquetes, et
de s'assurer que ces renseignements entrent dans Ie cadre de son mandat et comportent les elements requis;

a)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCmE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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A continuer d'observer, dans sa mission humanitaire, les nonnes et pratiques de I'Organisation des Nations
Unies en ce qui concerne Ie traitement des communications et }'examen des reponses des gouvemements;

b)

A poursuivre sa reflexion sur la question de l'impunit6, compte tenu des dispositions pertinentes de la
Declaration sur 1a protection de toutcs les personnes contre les disparitions forcees et des rapports finaux remis
par Ie rapporteur special designe par .Ia Sous-Commission de la promotion et de la protection des droits de
I'homme;
c)

d) A continuer de porter une attention toute particuliere aux cas d'enfants victimes de disparition forcee et
d'enfants de personnes disparues, et de cooperer etroitement avec les gouvemements concemes a la recherche et
it l'idcntification de ces enfants;
e) A suivre avec une attention particuliere les cas qui lui sont transmis, faisant etat de mauvais traitements, de
menaces serieuses ou d'intimidations a I'encontre des temoins de disparitions forcees ou invoiontaires Oll des
familtes de personnes disparues;

j) A porter une attention particuliere aux cas de disparition des personnes travaitlant pour la promotion et la
protection des droits de I'homme et des libertes fondamentales, OU qu'iIs se produisent, et a faire des
recommandations appropriees tendant a la prevention de tetles disparitions ainsi qu'a I'amelioration de la
protection de ces personnes;
g) A poursuivre son approche sexospecifique dans J'elaboration de son rapport. y compris la collecte
d'infonnations et la fonnulation des recommandations;

A fournir l'assistance appropriee
intemationales existantes;

h)

a la

mise en reuvre. par les Etats, de Ia Declaration et des normes

t) A poursuivre Ia reflexion entreprise sur ses methodes de travail et Ii integrer ces elements dans son rapport Ii la
Commission, a sa SEW<.-afl~~ I cln&,scssion;

3. Deplore Ie fait que certains gouvemements n'ontjamais donne de reponse sur Ie fond. concernant les cas de
disparitio~ foreee1i qui se seraient produits dans leur pays, et A'OAt flas davamage dorme m:lit~ aUK
recol1lrnaadatiofls pertiflefHes t:ai~es e ee sl~jet dans les rapports dlJ GI·OlJpe de travail; et 0'0111 pas donne suite aliX
recommandatlol1s pertinelltes fail'es a ce suief dans Ie:; rapports du groupe de tmvail.
4. Exhorte les gOllv~AJement5 coneernesEtats:

a) A mettre pleincmcnt en oeuvre In Declaration sur In protection de toutes Jes pcrsonnes contre lcs disparitions
forcces
a) A cooperer avec Ie Groupe de travail et a I'aider de fayon a ce qu'il puisse s'acquitter efficacement de son
mandat, notamment en llinvitatn..a-se-r-enaR....lfuremem-l·accucillant dans leur pays;
b) A intensifier leur cooperation avec Ie Groupe de travail sur toutes mesures prises en application des
recommandations que Ie Groupe de travail· leur a adressees;

c) A. prendre qes mesures pour proteger les temoins des disparitions forcees ou invo)ontaires, ainsi que les
avocats et les fami1les des personnes disparues, contre toute intimidation ou tout mauvais traitement dont its
pourraient faire l'objet;
depuif.j...ffiRgt~l graBd nornbre de cas de displlrition Ro~ltts:-a poursuixre leurs efforts pour
que la Iumiere soit faite sur Ie sort de ees-dcs personnes disparues ef-peur EJllG k'S--fl'l{.~~ffies-ap~>S-ile
l'€gk>tnem-ee~fHlaWnt eflieacemcnt mis en ~uvre avec los fumilles cenecrnces;

d) Ayallt

A prevoir, dans leur systeme juridique, un mecanisme pennettant a ux victimes de disparitions f oreees 0 U
involontaires ou a leurs families de rechercher une indemnisation equitable et adequate;

e)

5. Rappelle aux gouvernements:

.

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a) Que, comme iJ est proclame l'article 2 de la Declaration sur la protection de toutes les personnes contre les
disparitions forcees, aucun Etat ne doit avoir recours a des disparitions forcees, les autoriserou les tolt~rer;
I'

I

b) Que tous les actes de disparition forcee ou invo]ontaire sont des crimes passibles de peines appropri6es qui
doivent tenir compte de leur extreme gravite au regard de la loi penale;

a

ce que leurs autorites competentes procedent immediatement it des enquetcs
impartiales, en toutes circonstances, chaque fois qu'j} y a des raisons de penser qu'un cas de disparition forcee
s'est produit dans un territoire place sous leur juridiction;
c) Qu'i1s dOlvent veiller

d) Que, si les faits sont verifies, tous les auteurs de disparitions forcees ou involontaires doivent etre poursuivis;
e) Que l'impunite est rune des causes fondamentales des disparitions forcees et, en meme temps, run des
principaux obstacles Ii I'elucidation des cas anterieurs;

f) Que, comme it est proclame Ii I'artic1e I I de la Declaration sur la protection de toutes les personnes contre les
disp~ritions forcees, toutes les personnes privees de liberte doivent etre libCrees d'une maniere qui pcrmette de
verifier valablement qu'elles ont effectivement e te Iiberees et, par ailleurs, qu'eHes ont ete I iberees dans des
conditions qui garantissent leur integrite physique et la possibilite de faire valoir leurs droits;
6. Exprime:
a) Ses remerciements aux nombreux gouvernements qui ont coopere avec Ie Groupe de travail et repondu a ses
demandes de renseignements, ainsi qu'aux gouvernements qui l'ont-iiwjt~ Ii S~ rt:n&l't~·sur-p!a€tlaccllcilli, les prie
d'accorder toute l'attention voulue aux recommandations du Groupe de travail et les invite a informer celui-ci de
toutes les mesures prises pour y donner suite;
.
b) Sa satisfaction aux gouvemements qui enquetent, ont mis ou mettent au point des mecanismes appropries pour
enqucter sur tous les cas de disparition forcee portes a leur attention, et incite tous les gouvemements concemes
adevelopper leur action dans ce domaine;

7. Invite les Btats Ii prendre des mesures lcgislatives, administratives, judiciaires et autres, y compris lorsqu'un
etat d'urgence est proclame, it agir Ii I'echelon national et regional et en cooperation avec I 'Organisation des
Nations Unies, au besoin par Ie biais de l'assistance technique, et Ii donner des infonnations concretes au Groupe
de travail sur les mesures prises et"les obstacles rencontres pour prevenir les disparitions forcees ou involontaires
et mettre en ceuvre les principes enonces dans la Declaration;
.
8. Prend note de l'aide apportee au Groupe'de travail par les organisations non gouvernementales ainsi que de
leur action pour favoriser la mise en ceuvre de la Declaration, et les invite it poursuivre cette cooperation;
9. Note avec une grande preoccupation les difficultes que rencontre Ie Groupe de travail dans I'accomplissement
de son mandat et prie Ie Secretaire general:
a) De veiller it ceq ue 1e Groupe de travail re~oive toute I 'assistance et I es ressources dont iI a besoin pour
s'acquitter de sa tache, y compris pour apporter son soutien aux principes de la Declaration, pour effectuer des
missions et en assurer Ie suivi, et pour tenir ses reunions dans les pays qui seraient disposes it I'accueillir;

b) De foumii" les moyens n~cessaires pour actualiser Ia base de donnees sur les cas de disparition1i forcee1!;
c) D1infonner regulierement Ie Groupe de travail et la Commission des mesures prises pour faire connaltre et
promouvoir largement la Declaration;
10. Prie Ie Groupe de travail de lui faire rapport sur ses activites, asa s~nti~m~""61 erne session;
.l+:-Ill't'nd-fUJ1(~-dU-n1fJJ*l1'l.-(-[;./(~4t-200~;-7-1-}-pfese-nle-f)U·F-~e:x"l3~I,t-indep~l'l~aHt--~llil:l'g€-d!ehl<:l·j·er--l-t.'--tadre

intel'llirti·onal-aeHlel-en--tl1al'icre-peH-a·Je-el-tie-dreils-de-l·!h0lnIHe-p0ur--la-pr-<'ltec-ti0Fl-des-pel'S011Ile5-G0ft-tre--les
po Uf Il-tlH1ilat-€1, lab 0rt:l'--tlfl--Pfejut

t~il;pa ri tio~fe~e5-.:m--Hwf:lk>I~s-att-tifeuJ:;t7-de-tl'a-v-a+I-trn~'5eS5ieH5-ayaRI

e

!:l!.iflStflmlern--t)el'tn~,ur-icl-j·ttl:lemei~"0HlfitigHflnt-p(t\:It-la--t>rete~t·i0It--<'1e---teutt..'s-l~~11Hes-oontfe-te5
(~~af'ttt<7Hs ....fef€{'~~0ffi<*fooffieH""IlU-JH~sl:)·h.*iet~GO+r'4€rel 2 11 11 de la C OIH·ITt~ssfeiH4es-df~k."--¥ft~H1HTte,

no

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afllsi··q-He-la-€0fll-l'flHIt:«71'l-ati-l>-resident-RupP\')fK'l.lr-du-(-tfOl:l-pe-de-tffi.. . ai-l-de-la-S(')u'S..Geffimi5s-ffil'l-de-ta-prefl1et-tOfl
ci de 1ft pm1ection des droits d~ I'homme Sllr l'admini!i~rftliOl'l de la jUS~l), tRWtl\1X du gl'oot)e de ~ra\'ail
-imefsessten!:r.-en sa qtl&l-itHe-RawoIt~H'-i:Itl-proje[ de con'l~llion illt~MttemHe-peUf-laim7l-OOt«:m-de-tettk.~
1*H'50llAeS-€etltre les disparirions le.-cees (E/CN.4/Sub.YI99~Ftnell~ransmis par la SOHS Com-m-i5f1ietl
da~~lulion 1998/25 du 26-a~-9·8-;

a

12. Prel1d note t:!gfflefflenf-du rapport du groupe de travail intersessions, composition non Iimitee, ayant pour
I1)andat d'61aborer un projet d'instrument normatif juridiquement contraignant pour la protection de toutes les
personnes contre les disparitions foreees (E/CN.'II2~ E/CNA/2004/59) et se felicite des progres importants
realises lors de 1a pk."ln-tere-deux h~me session du Groupe de travail ainsi que de la participation d'organisations
non gouvernementa1es it eet egard;
13. Demallde au groupe de travail intersessions, it composition non limitee, de se reunir avant la sei*8:l1ti~Hle-<6J
cmc session de la Commission pour HtltHlttree de I() jOUP.;--Bwr-afHe5deux sessions I"ormcllcs-pour J**H=5Uwre
conclu CLses travaux, ea,*wffH~meflt-lHl"X:-l:ese-JttOOl-rs~oo-t..J46-e~OY4+-de-la--GBiHlnj.s{;jetH!es droi ts de
.j!·heffitfle, et de lui faire rapport a sa s~~61 emc session;

14. Prie Ie President-Rapporteur du groupe de travail intersessions it composition non limitee d'entreprendre des
consultations i nfonnelles a vee t outes les parties interessees pour p reparer la p rochaine session duG roupe de
travail;
15. Prie Ie Haut-Commissaire des Nations Untes aux droits de l'homme d'inviter les e!<ptlrts l11entiol\nes au
II ei d~s!:j\;i$-!'e:<ncrt indCpendant 'charge d'ctudicr Ie cadre intcm"tional actucl en matiere pcnale et
de droits de I'homme pour la protection des personnel' C(lntrc Ics disparitions forcCcs ou involontaires. Ie
Rapporteur du projcl de convention internatioJ1ale pour Ja rrolcction de toule::; Ie::; personncs cOlltre Ics
disparitions forcces (F./CNA/Sub.2/19981f9. llnnexc). ainsi gu'un representant du Groupe de travail SUI: les
disparitions forcecs ou involontaires participer aux activites du Groupe de travail intcrscssion;
pa\'agra~

a

16. Decide d'examiner cette question·a sa so i:'(Af)t ieme 61 cine session, au titre du meme point de l'ordre du jour,

UNCLASSIFIED
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RELEASED IN FULL
MISSION PERMANENTE DE LA FRANCE
AUPRES DE L'OFFICE DES NATIONS UNIES
AGENEVE

C~2-D

b

36, route de Pregny
1292 CHAMBESY

Tel (41) 022.758.91.11
Fax. (41) 022.758.91.37
Telex 419101

Geneve.le 27 octob1l' 2003

De III part de

Catherine CALOIHY

DesttnataJre (s)

M. PEAY
Mission Permanente des Rtats-Un.is
Fax. 022/749.43.43.

Pricre de commnniquer

.QJll!l :

a

Di!lparitioD, foMs.,.

Le document a deja etC donne a. Mme BRANCATOJ.

.Nombre total de pages:

14

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCmE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED

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c;L:?Db'A-

NONP.APIER

22/10/03

Pattie I

Au fins [du primtt iIuJrImJ,nt]>

on entend pu disparitiotl £o%cee]a privation de liberte'(l'unc

pe.mosm.e. sous Cluelque f01:tXl.e que ce soh, cor.DD'.lise pa: des :agents de l'Btat on par une
o:ganisation pon. ou plLt des pel:Sonncs 0'12 des gtoupes de pex:sODDeS qui agis.scnt"avec:

l·atlto.cisatiol':l~ l'appui ou facquiescement de l>.Emt em de l'organintion politique. suivie du
dCQi de 1a tecOnna!ss211ce de 1t.l ~ de Ifbctte on de la dissinmIation du sott d$ervc i
Is. peuonne dispa.tue au clu lieu. OU e1le se ttouvc. Is. 50~t lliusi a. la. plOtection. de la

1oi,

.'

Tout Btat pattie ptend les JXJ.eSUteS necessakes pout Clue b. dispuitiou fo.tcee. tell~
daB.aie .. fatticle 1=. constitue unc infrsetion ~u tegud de son: droit penal
lonqu.'elle est co.Jm::J:aiae h:l~=e1lement

1.

qu~ell.e est

'/

2.
I.e pmeo.t ILtticle est sans prejudice d$ toUl.'. autre ksst:rument .intelna.tiooal au de
toute lollladonale lfli COJ1ti~ ou peut conre.aJt des dispositions'de p~ plusla.rge. .'
,};...: '.:.'.!.~ .. ":' ~i·.: ,~ L",.'...·.· /. ,
;':.J'./. "4"~'; J.~~ ..f " r....,·.· .<J.j.

,/7 //.
J'.

4dl£It3
. .

.. ..

a) les auteuts d'~ disP.ri~~"
~ CCUX qui S'CIl rendeo.t complicell. soit CO
otdonnaot, sol.licit:ant ou encoUbpnt ]a cotlm:dsno:a ou Ia te:aiative d'uue teIle
i11!ractioo, floit en &.ciJit3nt 1& commission au Ia tea.tative d'uoe tlclJo UW:acticm
eo. appottaslt leut &ide. 1em ~co~ ou tQute &\1tre foune d'assiBtatlce. T
~1ia en ~~t1= moyens de tette "'O!"sniMkn's. QQ..de. ~ tl=nt&~

fo:..=

. / ' b) bL talu.ttve de dispuition £O%de,

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JlJN 2009 200706444

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1

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'"

2.

,.

To'Ut Etat partie ptend leli IXlesutes n~cesswes pow: que la noliOt\ de c:o!t1plice, au
set1s dUo panpphe 1. a). englobe 1e supenem hiftan:.hique qui. ~

a.) sa'rllit ou, en taison des d.tcoDStanees e.t des info=a.ti.ons don!: il dilp05ait,
aus:att dli szvoU: qu'utl subamonne pkce SOllS son autorlte ou son eo:o.t1:01e
effec:ti& eUUt· etl t:r;ain de ctl:lnmcttre on stU: Ie point de eonunettre nne
dUpllJition f"o1:cee, et q,ui :
b) n?a pas pris toutes Ie! mesw:cs necessaircs et ~Ol1nahJes qui eta1ent en son
pouvoit POut empCchet ou &ire cesse.t ]a disparitioll fotcee, OU POnt eo.
~titnet

i"exeeutlon au en rCferet 1111% antodtes c:ompetentes aux fins d·enq.uete

et de pO\USurtes.

1.
Tout Btat plLttie %e.nd ]a disparitiou fo.tcec
p.teD11eOt en considemtion sa p:riti.
.

passible de peines approptiecs qui

Tout E.tllt putic p~t pzevoit :

2.

a) des circonstulc::es attenuantes en faveut de cellS qui, impliquea daDs la.
commission d'une dispmdon fotcee? .utont co.nt11bue efticaeeznent a. la
~n en vie: de 1& pmoone dispa.ruc au at.ltOD.t peuais d'C1ucldet des cas
de ~tions :£orcies ou d'ic1e.nti£id: les anteutS d?une dispadtion £orcee ;

aggumante8 et1Vet& ceu:lt qui se sont fe%ldns ~a'bles c1:une
dispuiUcnl foIde 1 fenamtre d'une pe=onnc pattic:ulieument vuln&able,

b) des c:i:cc021Btant:eS

a.

notammeo.t ~on de son. igt. ou de lion

emt de sante..

ArI.i£k 5. (~.- !!.. )
Tout Etat partie p.tend les mesums nCc:esuite& pom qu'a rCgud de 1a disparition

1..

£0:=. Ie tWai de prescription de Paction pCnale et des peiAes :

a) soit 6gal211 de1ai Ie plus long pten clans sa legislation;
. b) COXDrnel1ce a. couri:t acompte:: du jour OU Ie aor:t de la pe:tsonnc dispame est
connu avec cettitude.
Lonque les m;QUXS plms a. futicle 2 § 3 a) du P5.Cte int:d:n2tioml xe.1a:tif ~ ckcifs
civi1.s et polltiques Sle sOS1t p8S c£ficaeea. 1a p.teScription de la. disparition fOfCte est
suspendue aussi loogtemps que I'effic:acite de us xecoms S1"aura pas em titabJie.

2.

Art/(/re

AuCt1fl ordte de Ia Io~ aucun Otd.te on instruction m.anput a'uJle ~utotite, de que1qu.e
r::ue ce soit. ne peut ette invoque pour exOt\erer l'autem:: d'une dispatition foJ:cee de
SIt teSpc;:lSabilite peoale.
.

11atlJ.te

UNCLASSIFIED
.

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.

Tout Eat putie stasll'l1%e que les tneS\U:es de pee. d?ac:xoi:ltie.et 1es Q.utl:e.a IDeS\U:es
analogues dont peuvent beo.CIiciet lea auteu:s ou les pullonnes soup~ d'avoit
cm:a:r:nis un.e dispuition fon:ee, n'aient pu pO\1%: e£f'et d'empAebu l'exerdce cle tout %eCOuts
et l'obtention c1'une ..tepamtioJ:l.. Est notammem g;u:anti, en t:oute citconst.snc:e, Ie droit
d'obtenit des infoJ:m2.tions exa.etes et eomp1.eteG su: 1e sott des pe.bcmo.es diIp~es.

\

/

Toat Btat partie considAre k dispaJ;lt:io~ £Ode comtnc un Clime Grave de ckoit commun.
au IiCQS ~ l'arlide 1 F b) de 1& Convention tdJ.tive au st9.tUt des ~ du 28 juillct 1951.
AnMI2

Tout Etat pattie p:tend. Ies !neS\JZCS necessmes pour eblhlir Sll c:otnpetence, al'egar:d ~'UJ1e
dUparliioo. £oo:.ee. daua let QI,S sui:nnts t
a)

Quand l'U:Uiaetion a Cti commise sm tout t=itohc relevant de ~ judilidiOD.
011 a botd d.'un Dnite bAUBnt son paviDol1 ou d'\m aeronef immatzicu1e
~J:rIl.Cmetlt aea. ~O~ au m.Q1nent des &.its ~
•

b)

Q:I:land l'a.ute\lt ~ume de l'iubctiou est run de 5CS '~~m.~ ; /

c)

Quatid Ia PCUODf1C dispame est run de set te5So.r:t:Ulia.ab;

d)

Qwu:ul l'aut;eut presume de l~dion '0 troUV8 sur uu tetIi~ telenm
de sa j1:ldc:lic;tion et qu'.il Ac'l'em:a,de pllS 0t1 De Ie dOlue pas devant unc
Jusididiou peoaJe U\t,cJNtiona1e.

.

At:Jj;/I1Q

1.
811 estime ~ lea citcoastances Ie fustideo.t. aptOs avon: ""mine lea .tenseignemau'ii
dont it dispose, tout But p2J:tie wr Ie tetd.1JJire duque1se trouVc'une petaoxme so1J;P'ionnee
d'avoU commis uo.e dispuition £otde p1'eXl.d toUC8& ldil metnites nCcessaUa; pout assu.tet 1&
px&cce eonti:a.uo ~ cette pf:t8ODUe sur SOil tetrito.ire et. lin besom, assute h. deteotion
Cette deten.tio.n et ces m.e&UteS doivent etxe confottDes ala 1egWation ciudit EOLt partie ;
e1les ac p~t ~ tttalntemIes que pendant Ie daai nCcessaUe a l'~t de
poUftUitea p~ au d'ane ptoddaIe d"e.:maditioa.

2.
L'Etat pauie C!ui a p!is 1es mes\l1'es 'risees au ~he 1 ptOCide immCQia.tesuea.t
9. W2e ~ pram.in~rc en vue d'&tlIblit les faits. n infotm.e·1es nuts put:ies qgi
9
~t ~ ~p&.cnts confMmement a fll%ticlc 9 a), b) et c) des 1neS\UeS qu i1 a pIises
en a.pplication du. pm:apphe 1 et des conclusions de Bon enquatc; en lew: io.diquant s'j!
eateo.d e:xeJ:CCl as. competence.

UNCLASSIFIED
FP0840

IgJ 005

UNCLirSSlPIED

3.

1'o\lte pmo:tme de.tenue en application c1u. pllIapphe 1 pe\.lt cCl1XlID.'l:ltliqt\et

imtnediatenlent avec Ie pl~ pIoche .teptesentmt qualifie de PBtat dont elle ala. natioo.alite
ou, s'l! s'ag1t d\me petsonne apa.tride. avec Ie .teptCsenblnt de PEtat ou elle .reside
babitn.e1letnent
.

I

Mcktt
1.
L'Etat ~ 'l>Ut ~ t.1:ttitoke llQ\)S 1a. jutidicdonduquo::l fll.ute\11: ptesutne d'une
disparition fo:cee est dec:ouv~ s'il n'extrade pas c:e det:niet ou ne 1e cWete flU devant Pne
.
jl¢dietion peuale iIltetwa.tionale, soumet rai&ite i ses autotites eompetent.e6 pow: l'exetciCe ./
de Paction pWa1e.
2.
Ces a.utoti~ p~t lear decision dans Ies ~ eondttions que pour toute
in&ac.ti.on c:fune gtavite ~ente en vetttt dI.1 droit de c:et Et&t

peme.

3.
Toute petsonne soupyoUtlee cfavo~ COD1lXlU UIlC dispuitiOD. fotcCe cst jugee par
une juridiclion de ckoit commun qui ob deB guanties <k «>mpctC11CC, d'indCpendancc ct
d'imputiaUti et qui respecte 1es gaunties du ptoces equitable.
.

Arid 12

/
....

-_._~

~~.

1.
Tout Etat putie assUre a quic:onqu.e aU~t qu'une pet'lIODDe a cte ~e d'une
dispui1ion £0:.= 1c choit de c1enoncer let 'faits devaD1 Wle autorl16 (,Qmpetente. et
indepcndante. Jaquelle ptocecte :imttl.ediatesnent et i1npartialement a W1C enquete
appl'Ofondie. Des JIlesUl:es sewnt p.rises poUt assures: Ia ptot=:tion du plaiguaut et des
tdno1ns contze tout 1»UV~ ttsdtullent ou. toule intitnidation en _on de 1a phintedCpos& ou de toqte deposition £site
.
Lo:a~i1 diste dee ~ lSeneuses de etoitc qu'une pcmonne 11 {te "Vid:ito.e tfune
dispuition £~ tot1t Eut putl.e IOumet faftaire a !'lWfotitC \'isee au paraguphe 1, a:fis1
qu.'e1lo ouvre une enqu&te, meme si 2lleao.e·pJain.te n'a. Cte ofBcigDetpent; cUposee.

2.

3.

a

Tout Etat ~ 'fti11e ce qua l'auto2:ite'Vilec au patagtaphc 1 :

a) dispose des POlN'Omt ct. des IessOun:es nkesuites pow: lXlen.et fa1q~te'i bieu ;

b) ait com.rnuoication des dOCU1I1.Cl1ts ~akes asoo. Ct1quCte ;
c;:) ait accCs atout lieu au 1:1 prese.o.c:e efune petsonne 42spuue est sOUP!rOJ:11lee..

4." Tout E1$t pattie gauntit A:Q:I'. petlIODnts qui ont un'intCt&t legirltn.e Ie dmit d'ette
infoune.es, a leur dem:mde, des p~p et des resubts de re:o.qu~te ouverte en Application.
des ~hes 1 2.
.

ou

UNCLASSIFIED
FP0841

._ ... .,
UNCLASSIFIED

Soot consid&es comr.ne aynnt un intet&t legitime. aox ttos (dti prirntt i1U't17/tlrmt] :

5.

a) 1t pCJ;Sonne privee de libedi ;
b) 'Ie conjoint et le9 mdnbtee de h fiunille de la penonne pme de lih~ son
avocat eu son %epxesentant lCgal ;

c) toute pe:tSOD11e mandatee pat lea pe:rson:o.es vis6es a'Wt points a) et b).
6.
Tout Etat pattie prend les mWltcs necessa.ites pour ~ et anet10nnu Ie,
ac:t.es de uatlUe entl'aVct Ie detou1ement des enquates.. s·-.mu:e notamment que les
petsonnes 90UP~QI:l.Ccs ei'avoit: co:lllttl.is une dispatition. foteee nc soicnt pas en JDe$U[~ 1*
lcuxs foncti0118. cfintlnet 81tt 1e couts c1es enq\l~ par dca pte$8lotu et dea aetes
d'int:imidation au de lCpt6aai11es e:xer:ces sw: Ce\U qtd putidpent aYen'luAt:e et lut lett
PllO~ de 1a. peaonne dispame.

a

n

"

Atti4t 1J

n'est:

Au d'fets de l'ez:tadition, 1a dispAtition Eotl:~
pas ~aaid&ee ~ un.:
infmetion politique au eomme 1U1e .f.o.fiact:ion de choit cormnun COOJ:lXIises pour des ftisons

1.

p~Hriques.

'

2.
La dUpatitiOf1 [on:ee est de plein choit comprise au nombte c!es ilUrac:tioDs dosmant
lieu. i extradition daus tout tnit& .r~dition concln entte des Btats puties.

'rout B1at putie 8·~ ainc:1me ,Ja dispuitio.o £ozc:ee au notl1bre des ioftactions
qm ~ r~diticc dana to\1t ttait6 d"emadition ~ ilsO\lSait.
...... . ......
. .
..
.
3.

"

4.
Tout Btat putie qui astQjetlit futtadition a l'~ce crun t.rAitC p~ s'il ~
une demande "stwtitiOll .run au= But pattie ~ il n'est pas tie pat on traiti.
~clCret !}I primJt iIltJrIImmt] t;O.tnme la base juzidicpe t1~Wo pout r ~ eo ce
qui c:onceme la. dist'adtioo. fo=.
Tout Etat putie q.ui n,'aswjetdt pas rezttadition a rexistenc:e d'\U1 t:mite .recouait]a,
disputiti0J4 foxcee comtne s~tible ~exttsdi.tion.

S.

6.

L'extradition est 5Ubotdo.uo.ee awt COQdition.s pmue.s pat le droit de l~t2t pattie

~ Ott

pat lea trait& d'emaditj.on applieables. y cornpx:is, nota'Xlmen~ au:z:

COt\~

concernant]a. peine tuiQima1e :eqnise pom em:adct et au rnotm pout lesqtae1a l'Etat putie
requis peut refusct fumadition.

.drtitlt 14
La Etats puties $'acc:otdent l'ent:J:aide i'xdiciaire 1a. plU$1uge possible dm.s toutc
enquete au pxocCdu.te pena1e relstive a utte dispaz:ition forCee, y compxiB en c:e qai. conces:ne
]a, commuoicatiOll de tous lea eIetuents de pnmve dont its disposcnt et C{Ui sont n.Cee$saUes
1.

aus:: fins c:le 1a. proced.'lttel. '

UNCLASSIFIED
FP0842

\

UNCLASSIFIED

'

I

2.
L'entraide judicia.i:re est subotdonnee IIWt ~onditi.oXUl p:rbru~ par Ie dtoit inteme de
l'Etal: partie tequis 0'11 pat les tuit& d'entraide judic.W:tt applicables, y compUs,
not:n1n!netlt, 'aUX conditions COt\l;t:J:nant les tI1oti:£s PQ\1t lesqut:.1s rBt:at putie :r.equis peut
teNser d'acco.roct l'e.o.tuldc judidaite.

1.
LeIS Btat9 puties coop~t entre ellX et lI'acl:o.z:dent Peo.tl:aide Ia pIllS latge posaibh=
dans la .recherche, ]a localisation et 12. .tib&ation. des pe:aOD.ne$ dispuues. .
2.
Les 'B~ts ptUties S'2.CCQmeJ).t nmtneUcment aide et assistmce en vue de portet
secoun aox victitnes des disparitioDS fo.t~es et, e.:a cas de ~ des pecsOtu1eG dispatUeS,
en ~e de k :resutution de lew:s teStes.

1.

Tout Btat pattie :

11) cUsigne 1es agents de l'Ebt lu.bili.tCs i oIdonner des pri'vatiOf),s de llberte ;
b) dCtmnine le& conditions Cans le8que11es de te1s o.rdn:s peuvent &t1'e d.oDnes;

e) gu,mntit ~ toute per:soMe pz:ivie de libette sem plac:ee
lieu ofiidellctaeD.t teconnu et conttOle ;

~ettt

.

dans un
,

un

,d) guantit. a toute petSonne privee de Iib~ Ie dmit d'inttaduUe
t.ecours
dennt W1 tdbUX1ttl afia. que e:e1ui-d statue sans deW. ~ ']a teglllitC de sa. ,
pdva'lion de hb~ et ouiosme sa libCmUoD. si ccttc pdntion de libert6 est
i11Cgale r:t, ai.1a petsonne pJ:irie de libh cat 8oUP~R d'awoh commia une

iDfr:a.etion p&mle, Ie droit d'ctre maduit dans Ie plus colltt dBai d~t un juge
0\1 uo.e autre autozite babDitee pat Ja lai ae:w'Q!.t des fondiom judidAhes.
.
i.
Tout Btat putie p~ 1= mesutes uecessai.tel p<rot ().UC 1es penosmet'l ayant utl
is1t&~ legitime. au seus de l'a.tticle 12 § 5, tel;ofvent co.tnmunk:a.tiOl1, lo.rJM'iU'ils Cl1 font la.
~de, d'informations 8\tt h situation d'une pe:tllOlUll~ pnvee de h"bette. Ces m£o:rnations
,

coneemeo.t. e.u Uloins :

a) le fu:u oU. se ttoUVl' 1a penonne ptivee de :IiberlC.
b) 'Fldentite da tespousables de l2. p,mtion de liberti,

c) l'autotiti a laquelle la persotme .s. ete d';feree.
3.

L'out Eat putie eta.bIit et ti.cn.t a jaw::

'Ul1

aU pIusieuts ~e6 officicl.s des

ptivees de Jibem. Ces' infomations figatant BUt ceo! ttgistt= sont tenues a 1a
dispositiOSl des pcaonnes et autclites tr1CD.uonnee:s aux parapphe:s 1 et 2, pour

pe:mcumes

~nllU1t.ation.

UNCLASSIFIED

6

FP0843

.-UNCLASSIFIED

.Artj;1t

lZ

Satr.s p1ijudiee de fex.unen de ls lega)ite de la privation de libcrte d'une petsOlUle, les Btats
parties garantissent amute penonne f.)'mt 1m. intetet legitime, au set\5 de l'uticle 12 SS. le
droit aun :ec:ou:r.s effeetif' pout obtetli% les Ulfon:nsatians vUees i Yut:icle 16.2. Ce dtoit ;. un.
teeO\1t$ ne peu.t ett:e suspendu ou. limite en aJ:I.Q1ne c:in:onst2nc;e.

Tout Etat pattie ptend lea Jnesute8 I1CC~ pout que ~ temise en 1ibett.C d'uo.e peaonne
&e detou1e seton des ttlodaIites qui ,£>eunetteDt de verifier IlveC certit\lde ClL1C k peuon.ne ~
&i cffectivemea.t libe:ee et qu'elle etC de telle ~ que S021 ~te physique et SSt
facu1.te d'eun:er p1eUletnel1t ses droits soieat uSUtees.

ra

Tout Btat pattie ptend les mesw:es necessa.ires pour ptevenir ct sanctiotU1et les agissem.ents
suinnts :
a) l'entran ou l'obst:rl1c.':Cion au teeDUr.$ vise i rattick 17 ;
b) Ie UWlliUeme:nt i l'oblJption d'enregiatreme:nt de toute ptivation de liberte,
. ahui Clue Yesnegistttmea.t de toutc infotmauon dant l'agent xespoDSab~ cb1
.tegiat:te o£:6.c:i.el c:oELCtlit au devt3it ccnmaiue l'incuc:titude •

c:) Ie =us iD.egidm.e appose pat un agetLt de l'Etat de foumir dei iuf()Ullstions sut
une p!iva.1:ion de ll1:tetli, ou]a foumjtntc cFmfo:i'm,tioos lnezactcs.
.

1.
Tout Btat putic v~ a c:e <pc]a fozmation Clcs aptll c:h.arges cl~ l'app1k:ation. de la
loi pclsse ind.\Ue r~th\~ uec;ess,m coneemmt les dispositions [i/M ~ instnmsmt],
envuode~

a) ptCveWt Phnplkation de c:es agents dans des disparitionll JO.tce~ ;
b) 80uligtu:t Yitnporta.11ce de 1a prevention ct des ~
disparltion ii:m:Ce ;
c:) veil1et

a ce que furgenee de 1& rCso1Won des

en.

inatiete de
.

cas de diaplUition fozeee Bait

teconnue..

Tout Bmt ~ TeiIle i ee fiUCl aDient in~tB les otdl:es on instrw:tions
pJ:C5e:t.i'91m.f; llU1t:JJismt ou encou:r:apnt une disparitian fon:ie.

2.

UNCLASSIFIED

7

FP0844

UNCLASSIFIED

'rout: Etat pattie ptend les 1UesUXeS necessahes poux que lC$ agents

3.

chs..rges

de

l~applica:tion de 1a 10i qui

ont des nlisO!lS de penset qu'une dispuition fotc:ce ,'est produite
on est SUI: Ie point de se ptoduiJ:e spent Ie cas a leun supCri.cutS et. au besoUJ, :lUX
~tOrl.tCS ou instances deCOl1ttole au de recQUXS co~etentes.
Arliple 2.1

A\'IClJn Etat pa.ttie u'expu1se, De tefowe ni n'exta.de une petSomlC ve.t$ nn autre
de croite qu'uoe dispatition fol~ risque d'etre commise a son
enconl:te daus cet 'Etat.

1.

Bmt s'il y a des %DOtiti

2
Pow: det:=ninet s'll ai.ste de teIs motifs, les autQtites competemes tiendtont
compte de toutes lcs consid&ations pcrtinentes, y eompris, Ie cas ech.&.n; de l'existence.
dans lEtnt intCtes$~ d'uo. e.nse:tnble de violatioD$ systematilJUe8 des cb:oits de l'homme,

P_.

&gtan1:e3 00. ~

Mirk22

1.
Aux fiuI [JRprlmd itt.rtnmmJ(j, on entend puvietime toub= personnc physique l:l~ ..
8ubi un p:ejudice en nison de Ja cotDtDis,ion de fJnfmctioa dClinic arU1idc lcr:.·

Tout Etat pattie gar:anti; dans SOil '}'St-' juzidiquc. a la'victi=e d"uxte disparition.

2,

£Ode Ie droit d'obtenir uae ~ des dommages qIo1i lui on.t etC causes.
Le dtoit areptJ:tUon "rise 2\1 pa.r:spphe 2 COIDpfeOd notamJOent:

3.

b) la tCadaptation,
c) ]a satis&c:tiod,

d) Ie rCtablis8~ de 1a digni1le et de la reputation.

ArtidlZJ..
Tout Eat pude ptt::ad.les mesutet neceuai:es pour pxeveoit etreptim.et pena1emcnt :
~)

l"enl!vemeo.t. ou l'apptoptiatian. d'etWmtB dent l'un ou
v.ictimea des e:time de e&parition fo:cee ;

r~utr:e

dea pas:ents $ont

b) 1a faWfication au Ia desttuction de documents llttesbmt 1a vCritable iden.tite des
en:&nts viW au a).

Adle/424
Let Buts patties se ptetent mutneDemeo.t assistant:.e claus la .rechet~ fidentifieation et la
detetftlindion du lleuou. se ttouvent les enfant!; ealeove. OU ap"PU'pttCs dans lea conditions
de l'artich: 23 a).

UNCLASSIFIED

8

FP0845

UNCLASSIFIED

1.
Lotsqu'un cnfmt weri au :tpptoprie c1an5 1es co.o.ditiotU'i de l'uticle 23 &) est
Iettouve sur Ie w:r:itoite trw:a. Etat pa.ttie. Ja question de 6o.t\, evenb1el teto\tt vas sa. ~

d'onpe est uglee, soit pat ]a lei nationi1e d~ c:et Emt pattie, soit pat l'aa:m:d bilat&a1 ou
tnultilatC:2l qui le lie ..vec: tout aUb:e Btat dans leque1 ade la :&.mille d'orlgine.
2.
En toute circoQStBn~ l'in~t sup&icut de l'eo.6mt est uno conside:ratio.n
prlmotdiale fJt l'eo!ant qci est capable de disc;etnement a Ie droit d'uprlmer libtement aon
opiaion,1aquelle. est d&nent ptise en c.ompte eu Cgud \Ion age et i. s o n . de. malUti.te.

a

Pattie II

ArtidtlI-,tJ
1.
Tout EtA.t pattie ptCsc:llte @ /~ til mwq, pat l'enttemise Qu S~ gin&a1 de
rO.rga.oisation des Nations l.hlieB, un rappoz:t sur Ie. mCSU1U pdses pout doanet ef£et ases
obligations en "fa:b1 [dM pmmt in.ttnmtem], daos aD de1ai d'Un an. ~ ~ de l"t:ntxee en
vigaeut [ill prirmt~]aIIOti Cga.td. .
2.
. A k suite de 1& ~tioD du mpport vis& au puapphe 1. tout :Stat paJiie
Watnit un DPport ~ompl=entaitesur detnande [ill l"lfl'Il til ntM).

3.

~

SeQ;c!Bite gU!&21 de fOtgmisation des NatioDa Umes transmet 1es rappDtbl a

, tousles Et2u partie$.

.

-7.

4. " Cha.que tappatt est Ctwlie pat .[I'fJtlfltIt de
qui pent &ire les comrnentAi:s:cs. les
observations. les ~OUJtnaod:diDA8 et 1cs !Dises at gudc' qu'il estim.e apPlO'p.d.es.' L,ggt
putie mt&eae ~it co=nuok:ati~ des c:omInentair:ea, observations. l'CCommlU1datiom
et mJses
gude, g;11XI1ucla npwt dpond,te. de sa plOpte initiative ou a14 derDaS2dc {tit
1't1f§RU tit nd«1.

=

UNCLASSIFIED
FP0846

Il!:JU.U

UNCLirsSIFIED

1.
[L/orgfJt1t de J'IIivi} peut: ette saisi pat un Etat partie, ou pat mute l'e%Sonne qui a un
interet legititne, f.U Seils de }'mil;le 12 § S. d'nne demande "risant i che.tche.t et tettoaver
nne petsottne c1ispatne an ,ens de futicle 1cr.

2.
S'll estitne que .k c1emande presentee en vettu. du patagraphe 1 D.'est pas
lna11i£estetaent depaw:vne de fondemeDt, qu'elle ne c:onst:itue pas un a.bus de cb:oit et
q,u'eUe nest pas incompatible: &VeC lea dispositions {tiM primtf irutrrIm,trtj, [I.'otzdlll " ftIivt]
clemande a. tout E.tat pattie de lui £OutniT, dam un dClal qul1 fixe, des le11sdgnements sur 1a
situation de cette pe.rsonne.

Au vu de Ia ripODSe foumie pat: l'Etat partie ia.*e.sse c:on.foUnem.ent au patapphe
2, {t'argane tie Mtll] Pftse!1te ace demier unc teCOJ:l:U'WU1dation Ol1 \Ule mise eo. g:ud.e. npcut
aussi lui dljoindte de ptendre des mesu.teS adeq1Il1tes et de lui en faire zappott. dans un
dew. cFi16xe.

3.

4.

[LJurgant til J71iJt] &ablit 1es c:onclusioo. de BDn eIUlUete et les communiClue a. rautew:

de]a. detXlaDde 'V'isee au pampphe 1 et atout But partie Il~ des .temeignemea.tt ont etC

demand&.

La. pmc¢dute ~ee pu Ie. pt4sen.t utid.e est eonfidenti&e. ToutJois., s'iI. estime
qu'a\1C\U1e!De$\ttC adequate Ita ete prise a]a suite d'une denw1de p.tesentee eonf~ement .
au puap.phe 3, [I'DrgIl1l'. d4 RIiPI} pent, aftCs p"oit !Dis eI1 detneme les Euts pU1ies
conc:emes, tendte publiques ses eonc:1usions, ainsi que lcs tepQWJcs et J:c:oJeignctnents q,m

S.

lui Ollt ~te l0umi8.

1.
S'il estime qu'un eteplacement Gut Ie teaitoire d.'uD Btat pattie ~ous la. juUdic:tion
duquel Sc ttouveuit la per:sonne disJ?U'le est !ndispemahle pout tepon.<ke to 1a ddXWl.<!c
dont il est saisi confotb1&ueat So r~
P'0goM tl4 SIIitJl) peut detmnd~ u# ou.
plwde1.us de Sell fJ:1CD:l1uea de riaHscr uoe mission d!cnqu!te et de l'iofDmlet sms IetD:d. Le
au les !Xlembres {J4 /'DtgIl1l, d4 J'IIIiJi} qui eifectuent Ja mission peuvent se £W:e a-=c:OD1pagncr,
Hi necess~ pat des inte%pretes, des aec:etQres et des upetts. AUCUD .m.embxe de 1a
delegation, i r~tioD des intexptCte8t p.e pent ette tcsso.ross:mt de l~tat p~e ~
lequella visite est effectuie.

n-B.

a

2.
[L ~trm fit S1IWij no~ pat Cait a lr.Etat partie ~ona:tlle son mtellUon .rorganiscr
\me tnissiou d'mqum et indique 1a composition de 1a delegation. L~1:2t partie -fait
connaitte. sans tetud s. {ff11XanI tl4 nmt] SOD ~ecotd ou son oppollition ila mission cret1C).uete
. SUI un te.rzitoite sur 1equel il. esc:tee sa jwidid:ion..
3.
. 51 l'Etat pattie a doone SOll accom i la missiOn d'enquete, il foumit [a /'o'7,tI1l, de .
1TIitn] toutes £u:ilitis neccssaU:es i raceompJissetn.e:nt de cette missioo.. [L'V1fIlM tk 1'IIivz] peut
nOUl1nme:nt :

UNCLASSIFIED

10

FP0847

UNCLASSIFIED

fl.) e£fectl1er les 'risites quti1 ;ugen nec:essaires pow: r.he:cher et retrouver k per.sonne
c:1.ont ls. disparitioQ. fo.tde ~t :aU.eguie ;
b) eu= en con~et librezne:nt a.vec toute personnel dont i1 pens$ qut e1l$ pent 1ai
foumit dtJS infotmatt.o.us utilet sUr le sott de la. pcraontle dam 1a. dispuition fotcCe
estallEgufe.

c) se faire presenter k pe1'Sonne dent 1a disparition fi,tck est alleguee et ,'entretentt
ave<: elk W1S .om.

b) i l'Etat pu1ie aut Ie ~ duquel1a tnisaion d'e.nttuCte 8 ete effectoel:.

s.

La. ~ viat6e pu Ie ptesent .mclc est coafidentieUe. Toutefois, avec l'accoxd
des Btats patties tODa'UlCs, [J'otgtlIJe rk .ndzi.J peut :rendtee publigaes ses consmtations .

ArJk4IZ-12
Les tne:ttJbtcs [tk P#flJI1" tie ~7 et c:eux qui 1es accompagncnt ~ 1DissioD sur le t2I:dtoite
des Btats pudes ont <hoit-mJ,X facili.t&, ~ et immucitCs 1CCQ9Dus mn: =petts en
miseiotl pout l'Orgaoisation des Nations UDies, tels cF'ds .o.ot Ctloac;Cs dans les gcctions
pertinentes de 1a. Convention sur lea privneges etimtrl11fli tes des Nauons Unies;
ArtkltlI-B
•••

'4

••

1.
lr.:qrgatfl iI4 Nir.l] u'est compet.eo.t Cl'l'i fegam des pr:in.tious de libd &ymt c1ebute .
posthieu:emeat afex1a:Ce ec ~ [tilt prismt instnmzmt].
'

Si ~ ntat dt:rient pattie [tlIl prinnS instnt11Itnl) llFb r~tr.e.e en vigoeut de cc1ui-ci.
obligations v:is..a-ns, [it fUTgtZlll de J'IIigz] ne conc:eto..un etUe lea ptivations de: libctt& a1ant
dCbute po~ al'cnttee en ~ [tlllp,;smtinJtntmltJt} aJOQ eguet

2.

SC!I

AttiekII-P

.

',,"~

t.
[L'orgllll' til stdVt] ptesea.te aU%. Etat& puties et i. fA£sembJ.C,: ~ de
l"OtguUsation des' Nations Unies un .rapport srmucl sur les actirites qu.'il aw:a .tealWes en
appJica1ion [dItJnimtt ilutnmrmt].
.Min d'assurer Ie 8dtvi de sea obllerrauons et de sea Ut:OtDDWldatioD8, [1'P1"J.~M tie
sl S2. disaetiou. cUc:idc de uptoduUc dans Ie DPPort .ann.t1e1 qtill etd>lit
l:on£onneme:ut 2.'11 patapphe 1 taUs c o ~ Qbsern.tio:ns, "EeCOtomandaUons et
.znises en ~e fomml& pat lui en 'Ve.rtu de ft.ttic1e n-A. ~es des obsetntiona
.t~es des BtlI.ts runes isltitesses. n peut aussi ded.de:t de reptodui:e 1es eonduaiotl!
2.

J'tIifIIl pc:u.r,

UNCLASSIFIED

11

FP0848

UNCLASSIFIED

tendues publiques eonfottneme.nt a.l'article U-B, paugtllphe 5. et lea constltattons rendues
publlq,ues confowemeo.t aParticle II·C, pusgraphe 5.

Pattie III

Artidemri
1.

{Lt primtt ift.llnlf1tmt] est ottVe.tt; Ala sipture de [.: J.

2.
[U In'm1l indru",mtJ est soumia a. la D.t:Ui=ti021 de [.. J. Lea icsttw:nents de
ra.tifu:ation seront deposes aupms du SectCtaite gCn&a1 de ro.tglLtlisation des

Na.tions Ualcs.
{LI prisml itI.f1rNmmil eat O\1'VUt aI'adhesion de C••]. L'adh&i031 se'{em pas: Ie depOt
d'uu .insuument d'.dhEmn Allpfts du SeaCtaite. p&al do rOtganisation des

3.

Nations Uaiea.

{LI prismt inrIrImmf} e=em eo. Tigaew:: Ie ttentihne joui:
(N'-l insttument de .ratiS.cati.on ou d'adh&ion.

1.

sap.

]a date

rlu depot du

.

Pout tout Btatqui !2tifiera [k primII ind11lmt1l!j au y ~ apris Ie dep&t do
c=emc instr.ument de ut:ifieatiou. ou cl'adbHi~ [k P,;mzI insIn#1JInIj c:.nttet.a en vigueu.: Ie
trent=ne jOut ap.res la dati: du. dfpOt pat cet Etat de son Wttw:neJ1t de #tification ou

2.

tr.dhesion.

.

.

4rtk'4 m£,;
I.e SecMa1re peat de l"Otganislltion des Nations Um~ :notifieu. a tous 1es Efats
Metnbtes de l'OrguUallt10.D des Natioos Uoies et atOlD h:s Eta.ts qui aw:oo.t signe tJ- prlmrt
itI.f1rNmmil CAl YllUl;On.t adhere :

a) lea signatutes.1cs mtifications et 1es adhesions
m-A~

te~es

en applli:ation. de l'uticle

b) la da.te d'eotde en viguew: [iR primt i'l'lJtt1mtt1ftJ en applkation de l'ld:ticle ID-B.

Adit" 1l1;12
Les dispositions

ttl# prlnnt inttrtJmeflt] s'appliquent:, 8mB lhaitati.cm. m. exceplio.D aUCUD.e. a

~ leG ~ WWltitutives des Etat$ fed&:a.\lX.

1,

UNCLASSIFIED
FP0849

UNCLASSIFIED

Aacu:ne citeonstance. qu'.il ~agissc d'.ins~bi1it.e politique intenew:e, d''I1W: menace de gu=e,
d"uu~ gue.tte ou .de tout.e anne 8~tion d'eueption ou de suspension des gumties
irld:mduen~ ne peut ~tte invoquee pow: se $ousttaite aux obliga.tions ~oncees dans [Ie

pnsmtitummmrt];

.Les dispositions {tJtt primlt ituh1Dnltft] sOl1t sans effet sur.les obligations qui. incombent a.wt
Brats parties en vcttu des quat%e Conventions de· Geneve dn 12 aoUt 1949 et des
Plotocoles additioD%1els du 8 jum. 19TI s'y Dlppottmt, OU sa.t la possibiliti q;tfa tout Rut
p~ d'autoriser 1e c=te intetna.tional de la Ctoix-:R.o~ a v.isitet du liewt de detention
dans des <:as non ptevus par le dtoit inte.toatiunal humanitlite.

At1k4II1-G

BUt

1.
Tout
pattie [nprimrt itummmrt] peut ptoposeJ: un atnendement ct deIJoser sa
lllOPO.uion~duS=.taite~del~u~ Nldions Uoie$.. 1.& ~ .
gea&a1 corGttnmique Ja propositiou d'amendemea.t am: Bbies pmics [i1II prf.rmt inltt7l1/lent]
en Je\u demandalt de lui £air:e savok ,'ils Boat hvotab1e6 ll'o:tganis:aion d'\U1e eonfCc~
d'Bta1s patties en. vue de l'cumen de ]a proposJrion. et de sa .tJ:Iise anx voix. Si. ~ les
~
qui suiverrt ]a date d'tme teU.e ~on, Ie tie!$ au moina des E1ats
plItties se ptononcent en uveu:: de b. toQue de ladite confeteoce, Ie Sectetaite gett&-..il
ozganise ]a conf'erCl1cc sons lea _aspk:es ~ f~tion des NatioaJ U.o.ie:s. Tout
amondemcnt adopte la majoz:ite des dCQX tiels des Bmu putie.s pte.ema et TOta.nt3 ]a
c:oof'etence seta so'l:lZDi.s pu Ie S~ ~ ~ taccepmtio:n de tousles Emts putics.

mea

a

a

Un IUna1dement aclopt6 seton 1= diaposiUons dtJ. ~phe 1 em: present article
Jos:sque lea deux tic=:! des Emts p~ (tIM Jmmt itutrummf) l'aw:ont
acecpte c:on£ozmkrJent a]a ptocCdutc pJ:&nte pat lcDl'8 =nsdtnti~ tespec:tivea.

2.

entw:a ell vigu.eat

LolSque lee ar:nendc:me.o.ts cotretont en "riguelU:, i1s a.UJ:~t fon;c o~Iigatoitepout lea
lttats p~ qui le$ autont accept&, ~ auttes Emts patbe$ demewant JiCs par 1es
dispositions' [tillprism! ituIntmmt} et 1'8% tout ameo.demCl'lt anteticut qu'iJs a'U:l:ll'ient a~te.

3.

/.Lt

1.
prrfmt iflstnmtmt}, dont les
%USlie font Cgal=.ent foj, sera depose
NsUons 'UDies.

a~ arabe,. c:hinois, espagnol. ftans:afs et
aupris du SectCtaiJ:e genDl. de r~tion des

Wttes

.

Le &:eremite gen.erat de l'Otgan.isatiOtt des Nations U . feaL. tenir: ane eopie
c:e:cti£iee confo.atlC [tlsIprlnnt bz.s1ntmetJJ) i mas les Etab./.
.
.

2.

UNCLASSIFIED
FP0850

UNCLASSIFIED
RELEASED IN FULL
• The United States underscores that forced disappearances
are a serious human rights violation that deserves
universal attention, especially by governments, to
G;t:~:;
prevent, prohibit, and punish forced disappearances.
• We would like to recognize the leadership, organization,
and hard work that allowed the first negotiating session
you chaired last January to be highly substantive and
collegial.
• In the spirit of the constructive candor that has thus
far shaped these negotiations, we find it necessary to
voice serious objection to "informal inter-sessional
meetings" or "informal drafting group meetings" in
negotiations of multilateral instruments such as the one
under consideration.
• In the view of my Government, such "informal" intersessional treaty meetings -- coming on top of intense ,:'
substantive and formal two-week negotiating sessions each
year - strain personnel and other government resources.
In substantive terms, such informal sessions can also
result in hastily formulated positions and incomplete
analysis of draft instruments before their formal
adoption. This inevitably leads to the publication of
inherently flawed instruments, which is a result that
serves no one's interests.
• The devotion of finite governmental resources to these
negotiations must be viewed in the fUller context of
each State's other human rights negotiations commitments,
as well as human rights reporting commitments, and of
course annual resource commitments related to
participation in the Commision on Human Rights and the
UNGA Third Committee, which themselves·demand significant
resources and staffing each spring and fall.
• Additionally, "informal" inter-sessional negotiations
tend to undermine the principle of universal
participation, as not every State is always able to
engage fully in such negotiations.
• In short, my Government believes that the multilateral
treaty-making process is best served when negotiating
procedures allow all States a full and effective
opportunity to elaborate the text of an agreement.
Experience has shown that single, official sessions, held
UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0851

UNCLASSIFIED
annually, allow States to have the opportunity they need
before the next session to review a text and working
group report in capitals and to carry out requisite
inter-agency and other internal consultations in
preparation for the next session.
• Following that past practice, we believe that this
negotiation can be well-paced without being hurried. We
therefore call upon all parties to these negotiations to
refrain from making the mistake of putting them on a
"hurried" track.
• For these reasons, despite the fact that my delegation is
present today, in the future, the United States will be
unable to support ~informal" inter-sessionals that seek
to advance unhelpfully the pace of these negotiations.

• Turning to the Chairman's paper preparep for this
session and the Chairman's report of the first session,
those reports do not adequately address the genuine and
on-going concerns that some delegations (the U.S.
included) have about certain concepts and provisions ,..
discussed in these negotiations to date.
• Working group documents should adequately reflect
divergent views on issues, particularly where such views
are strongly-held by State delegations, as is the case
here.
• To this end, we propose that working documents of these
negotiations should contain "brackets" around
controversial or unagreed concepts, provisions and words
to fairly reflect that there are divergent views
expressed by delegations and to memorialize different
options delegations may wish to consider.
• Turning to substance, we wish to reiterate points raised
last January and to highlight major concerns about the
following themes and provisions, while reserving until a
later date other substantive concerns we wish to raise.
• A legal instrument on ~forced disappearance" can, and
should, be flexible enough to accommodate States whose
criminal statutes already comprehensively cover and
punish the offense, without the need to enact additional
legislation.

UNCLASSIFIED
FP0852

UNCLASSIFIED

• Bearing this in mind, criminalization of forced
disappearances would be better framed in terms of "acts"
of forced disappearance, which is similar to the approach
taken in penalizing "acts of torture" in the Convention
Against Torture (CAT Article 2(1)}. Taking this adaptive
approach would be both effective and eliminate the need
for radical reform of criminal codes (at least for some
States) who would otherwise be required to create a
newly designated crime of "forced disappearance."
• The proppsed definition of "forced disappearance" to
include a "deprivation of liberty in whatever form"
sUffers from being overbroad, vague, and unworkable in
the context of defining a criminal offense.
• The extraordinary breadth of this phrase seems to
extend far beyond the deplorable practice of a forced
disappearance which
the target of the proposed
instrument.
• The vagueness of the term could cause constitutional
problems in certain criminal justice systems and be
invalidated by national courts under a "void for
vagueness" doctrine.
• The breadth and vagueness combined would invariably
and inappropriately capture within its scope
legitimate law enforcement and security activities.
• The definition of forced disappearances should also be
limited to State actors, as inclusion of activities by
private groups fundamentally alters the scope and nature
of the instrument. Although any proposed instrument
would contain elements of international criminal law, it
is at its core a human rights instrument primarily
governing the conduct of States.

is

• A statute of limitations prov1s10n should require that
the prescription period "be commensurate with the
seriousness of the offense." This formula was also
supported by some other delegations last January but was
omitted from the Chairman's most recent Report.
• We strongly oppose a provision that would bar special
jurisdiction tribunals, including military tribunals or
commissions. Among other reasons, such an approach
erroneously implies that military proceedings are
inferior or are inherently incapable of ensuring minimum
standards of due process by comparison to regular
civilian courts. Should the instrument contain a
prohibition relating to tribunals, it should bar "sham'

UNCLASSIFIED
FP0853

UNCLASSIFIED

•

•

•

•
•

•

proceedings, regardless of their nature, and not target
lawful military tribunals in which due process guarantees
are provided.
We would strongly oppose a death penalty provision or any
other restrictions on sentencing.
• We note, in this regard, that other human rights
treaties, including the Convention against Torture, do
not limit punishments for perpetrators.
• The focus should be on the human rights of the
disappearance victims and their famflies, not on the
perpetrators. In these negotiations, we need to bear.
in mind that we are not trying to elaborate a criminal
law enforcement instrument but rather one that
principally addresses human rights.
We would strongly oppose jurisdictional provisions that
reach beyond those contained in, for example, the
Optional Protocol to the CRe on Child Sale, Prostitution
and Pornography.
• Article 4 of the Optional Protocol requires that a
State Party establish jurisdiction over covered
offenses committed in its territory (or on board a
ship or aircraft) and permits jurisdiction for
offenses committed by or against nationals.
• The Optional Protocol also requires States Parties to
prosecute alleged offenders "present inN its territory
when the State refuses extradition on the"ground that
the offense has been committed by one of its
nationals.
We would strongly urge excluding from the scope of the
instrument any .activities governed by international
humanitarian law. In addition, a significant overall
concern is that the proposed treaty not cover or
otherwise prejudice legitimate law enforcement and
national security activities.
Mandatory site visits would be problematic and subject to
abuse.
Any provisions addressing a superior orders defense would
have to be closely" studied with a view to: a)governing
national law and practice on the subject; b) the
lawfulness of the orders; c} applicable international
law; and d) the need to avoid unfairly accusing innocent
subordinate actors by ensuring that each accused had in
fact the requisite intent (mens rea) to warrant
prosecution.
A provision prohibiting reservations would be
unacceptable.

UNCLASSIFIED
FP0854

UNCLASSIFIED
+ Such a prohibition is not necessary as reservations
that would defeat the object and purpose of the treaty
would not be permitted.
• Properly tailored reservations are essential to enable
many countries to become party to treaties. Creating
a prohibition would thus be counterproductive to the
goal of achieving broad international participation in
a treaty regime.
• We would oppose the creation of a new treaty monitoring
body and believe that existing treaty bodies (e.g., the
HRCommittee} should be. considered as the appropriate
mechanisms for monitoring implementation by States
parties.
• These are only the most serious concerns of our
Government. Other issues of notable concern are raised
by' provisions relating to a centralized registers of
names, pardons and amnesties, reparations, standing to
raise complaints, funding, and entry into force
provisions, among others.

• In sum, the Working Group has a formidable task ahead of
it to elaborate a document that trUly seeks to enjoy
widespread acceptance within the international community.

UNCLASSIFIED
FP0855

·.

, .,:

UNCLASSIFIED

.

Drafted:

L/HRR - Gilda Brancato

Cleared:

L/HRR - Robert Harris - ok
IO/SHA - Tom Johnson - ok
DRL/MLA - Chris Camponovo - ok
US Mission/L - Mike Peay - ok (8/29/03)

Cc:

x 72773

8/26/03

113465

L - Sam Witten
L/LE! - Linda Jacobson
L/PM - Chip Brooks
10- Jackie Sanders, Mark Lagon
IO/SHA - June Carter Perry
DRL/MLA - Lynn Sicade

UNCLASSIFIED
FP0856

UNCLASSIFIED
RELEASED IN FULL

From:

U.S. Mission
Geneva

T. Michael Peay
Legal Adviser

Fax:

41-22-749-4316
41-22·749·4343

E-Mail:

PeayTM@state.gov

Office

RE:

E~~pages

Including cover:

.7S

Additional Notes:

()lb.)

IkuL aM Jk ~ /WILA~~~ JZt ~ .Jo-~~.
~~

~
/.
J.

r~}J;tjy

f.. O/fellR... (~4:

~

~uf O~ t¥~(e~fF~)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0857

,

09iJ..UL-2003 WED 18:01 . OHCHR-SSB
41 22 9179022

UNCLASSIFIED

••T

NATI )NS 'VNIES

UNITED NATIONS

•

'AT AUX Dlt,OTTS DE L'HOMME

HIGH COMMISSIONER FOR HllMAN RJGHTS
;

UNATIONS. OJ: EVE
T61ex:41 29 62
Internet: www.iclu..ch
I

E~mail:

crueda@

~olu:.org

(S£'23\ A

~='

RELEASED IN FU L

Telegrammes:

P. 01

FAX NO. 41 22 9179022

~

f2t-

1/
W ."
~
~.Yl-l.~/·

(~\\\
~

~1-{J~.A(.,(J
II
Address:
Palais des Nations
CH~1211 GBNEVE 10

As reque:lted. :
.'~

.

. 1·'.·
...
.. '...

,...:;-

r._

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,
.
UNITEDSTATESDEPAR: ENTOFSTATE
REVIEW AUTHORITY: .CHIE M BOLSTER
DATE/CASE IDRUIlJN~O~9m~oom~~. 17: 39

r:

UNCLASSIFIED
FP0858

09-JUL-2003 WED 18:01
'J

OHCHR-SSB

TTNCLl~~~I~rl2 9179022
4\ 22 9\7902Y'

NATI i)NS UNIES

l(~\
UNITED NATIONS
~ HIGH COMMISSIONER FOR HUMAN 'RIGHTS

.

ftAVT COMM1SSi\~ I'T AID< DROITS DE L'HOMME

---., ~-

i

Telegrammes:
.
'UNATIONS, GE ftEVE
Telex:41 29 62 ~
Internet: www.un.chr.ch
E-mail: crueda@( lchr.org

P. 02

.

GE23) B

~

RELEASED IN FULL

Address:
Palais des Nations
CH-1211 GENEVE 10

!AI

rro:

:

FACSIMILE

i

lDeI From:

AU ljmnanent Missions ofMember
State jand Obscryers accredi.te~ to t?e
IN ( pice at Geneva ~d Mls:nons U1
!New ~ork, as appropnate

_
Cannen Rueda Castaiion L.c..,

~ecretary

Open-ended working group op a draft
[legally binding instrument on enforced
~sappearances

!

lFaxN":
!relW:

lDate:

23J I;ne2003

!Objet

In£(

SUb1ect:

fmal
consultations
,

P22 9179022
~22 917 9288

[Nombre de pages y compris Ia presente : I
tNumber of pages including this one:
I

2

,
,

Please find at IlChed a note verbale.
;

.

,
UNITED STATES DEPAR MENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2 p9 200706444

---

.--_ . . - ..

~

UNCLASSIFIED

[0 J

-.FP0859

.

09-JUL-2003
WED 18:02
,.
,

OHCHR-SSB

"

41 22

P. 03

FAX NO. 41 22 9179022

SI790"HNCLASSIFIED
RELEASED IN FULL

NATI' iNS VNIES

UNITED NATIONS

HAUT COMMISSAR) lr All"" D'ROITS DE L'HOMME

filCH COMMlSSIONER FOil HUMAN RIGHTS

Tcl14fU.; (4\.Ur<.lll\911 itt
T4Wl!ftI"lllt$,UNAnONs. (j. (WE
T,It<c:"lZ9~

Addl(:5l~

PalAi14Cf Nadol\l
CH·12lJ OENEVS 10

I

T'iW!'1Ion;:(41·U)(-41 n19\7 gil
~ w_.uMclll'.eb

E-mail: crutdLbcll1@ll\Ol.A=h

~

1
,

,

!;
•

The S iretariat of the United Nations (High Commissioner for Human Rights) has the
honour to refi i to Commission on Human Rights resolution 2003138, entitled "Question of
enforced or in 'oluntary disappearancesu • In paragraph 14 ofthat resolution. the Commission
requests the ~erson~Rapporteurofthe intcrsessional open-ended working group with the
mandate to el borate a draft legally binding normative instrument for the protection of aU
penoN from I forced disappearance, to undertake informal consultations with all interested
parties in ord iI to prepare the next session of the working
group.
.
I

.

Follo ~g ~t request, the Chairpet'$Qu-Rapporteur ofthe working group, Ambassador
Bernard Kess ~jian, will hold infonnal consultations at the United Nations Office in Genev~
from 1 to S S rtember 2003. Ambassador Kessedjian would like to invite representatives of
all Member S es to participate in this consultative meeting. and would be grateful if the
Permanent Mi 'siOllS could imom the Secretariat of the name of the representative(s) of their
Government ~o would attend the meeting.
3 Jwtc 2003

UNITEDSTATESDEPAR: ENTOFSTATE
REVIEW AUTHORITY:
CHIE M BOLSTER
DATE/CASE ID: 23 JUN 2 :9 200706444

UNCLASSIFIED
,

[0]

.,-----_.--- ....- - - - FP0860

UNCLASSIFIED
RELEASED IN FULL

UNITED STATES MISSION TO INTERNATIONAL ORGANIZATIONS
GENEVA, SWITZERLAND

January 23, 2003
Ms. Catherine Calothy
Counselor (Human Rights)
Mission Permanente de la France
aupres de l'ONU a Geneve
Villa ~Les Ormeaux"
Route de Pregny 36
1292 Chambesv..
.
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Dear Ms

.~~IothY:

On behalf of the U.S. delegation, with pleasure, I take this
opportunity to again thank the French Mission, Ambassador
Kessedjian and his distinguished team for your superlative
efforts in bringing a successful conclusion to our initial round
of discussions at the.rnter-Sessional Working Group to Elaborate
a Draft Legally Binding Normative Instrument for the Protection
of all Persons from Enforced Disappearances, January 6-17, 2003.
In response to Ambassador Kessedjian's invitation for comments
from participating delegations on the Draft Report that will
reflect the deliberations of that working group, I take pleasure
in enclosing the u.s. delegation's comments on that report. Our
comments are in the form of hand-written inserts into the draft
report text and have been provided to you in hard photo-copy for
your ease of reading. As our delegation indicated during the
final afternoon of deliberations on January 17, our comments on
the Draft Report are offered to ensure that it reflects
accurately and with balance comments made during the formal
proceedings regarding a number of key points.
With that understanding, we hope these comments can be
incorporated into, and will assist in final preparation of, the
report in question. We look forward to working with you and your
delegation in the months ahead on this important project .

Attachment:
u.s. Comments on Draft Report

<:::::.. -

.

".

./

cc: Jeff DeLaurentis
Gilda arancato
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0861

UNCLASSIFIED
Peay, T Michael

.....

From:
Sent:
To:
SUbject:

.

"._..

.-.RELEA~~_P--l~~~L FU.1L._..

QE-·~~HD

_

Brancato, Gilda M
Friday, January 03,200312:02 AM
Peay. T Michael(Geneva); Solomon, Steven A(Geneva)
FW: Memo on Accreditation for WG on Forced Disappearances

looking forward to working with you both next week and to meeting the team (see accreditation memo below, please).
Mike. may I call you Friday to discuss plans for Monday morning. for example, who will be attending the WG session,
where to meet, etc. I will be arriving Sunday, staying at the President Wilson. See you soon l Very much looking forward
to it. Gilda
---Original Message·--··

From: Johnson, Thomas A
Sent: Thursday, January 02,20035:37 PM
To:
Muncy, linda H
Cc:
Perry, June C; Brancato, Gilda M; Delaurentis, Jeffrey(Geneva)
SUbject:
Memo on Accreditation for WG on Forced Disappearances
UndaPlease send the attached version of the memo to ole. Thanks.

ntenlO JccredltJIlon
rorced

d~ ...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

1

UNCLASSIFIED
FP0862

;,,:r

/1,
itt P'tI-.(;"{ ~ltfJ
I

UNCLASSIFIED

llliLEASED IN FULL
2002/41. Question of enforced or involuntary disappearances

(

The Commissioll on Hrflllan Rights.

Recalling its resolution 20 (XXXVI) of29 February 1980, in which it decided to establish a
working group consisting of five of its members, to serve as experts in their individual capacity, to examine
questions relevant to enforced or involuntary disappearances. its resolution 1995/75 of 8 March 1995 on
cooperation with representatives ofUnited Nations human rights organs, and its resolution 2001/46 of23
April 2001,

Recalling alsf) General Assembly resolution 47/133 of 18 December 1992, by which the Assembly
. adopted the Declal1ltion on the Protection of AU Persons from Enforced Disappearance as a body of
principles for aU States, and Assembly resolution 55/103 of 4 December 2000.
Deeply concerned in particular by the increase in enforced or invohmtary disappearances in
various regions of the world and by the growing number of reports concerning harassment, ill-treatment
and intimidation of witnesses of disappearances or relatives ofpersons who have disappeared,
Emphasizing that impunity is simultaneously one of the underlying causes of enforced
disappearances and one of the major obstacles to the elucidation of cases thereof and that there is a need for
effective measures to combat the problem of impunity,
Welcoming the fact that acts ofenforced disappearance, as defmed in the Rome Statute of the
International Criminal Court (A1CONF.18319), come within the jurisdiction of the Court as crimes against
hwnanity,
1.
Takes notc ofthe report submitted by the Working Group on Enforced or Involuntary
Disappearances (EiCNA/2002l79) pursuant to Commission resolution 2001/46;

2.
Stresses the importance ofthe work of the Working Group and encourages it in the
execution of its mandate;
(a)
To continue to promote communication between families of disappeared persons and the
Governments concerned with a view to ensuring that sufficiently documented and clearly identified
individual cases are Investigated and to ascertain whether such infonnation falls under its mandate and
contains the required elements;

(b)
To continue to observe, in its humanitarian task. United Nations standards and practices
regarding the handling of communications and the consideration of government replies;
(c)
To continue to consider the question of impunity in the light ofthe relevant provisions of
the Declaration on the Protection of AU Persons from Enforced Disappearance and ofthe fmal reports
submitted by the Special Rapporteur appointed by the Sub-Commission on tbe Promotion and Protection of
Human Rights;

(tf)
To continue 10 pay particular attention to cases of children subjected to enforced
disappearance and children of disappeared persons and to cooperate closely with the Governments
concerned in searching for and identifying these cb.ildren~
(e)
To pay particular attention to cases transmitted to it that refer to ill-treatment, serious
threatening or intimidntion ofwitnesses ofenforced or invoJuntary disappearances or relatives of
disappeared persons;

(j)
To pay particular attention to cases of disappearance of persons working for the
promotion and protection of human rights and fundamental freedoms, wherever they occur, and to make

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClllE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0863

UNCLASSIFIED

"

appropriate recommendations fQr preventing such disappearances and improving the protection of such
persons;

(

(g)
To continue to apply a gender perspective in its reporting process, including in
information collection and the fonnulation ofrecommendations;
(h)
To provide appropriate assistance in the implementation by States ofthe Declaration and
of the existing international rules;

(i)
.To continue its deliberations on its working methods and to include these aspects
in its report to the Cozmnission at its fifty-ninth session;

3.
Deplores the fact that some Govemments have never provided substantive replies
concerning the cases of enforced disappearance in their countries or acted on the recommendations
concerning them made in the reports of the Working Group;
4.

Urges the Governments concerned:

(a)
To cooperate with the Working Group and help it to carty out its mandate effectively, in
particular by inviting it freely to visit their countries;

(b)
To intensify their cooperation with the Working Group on any action taken pursuant to
recommendations addressed to them by the Working Group;
(e)
To take steps to protect witnesses of enforced or involuntary disappearances and the
lawyers and families of disappeared persons against any intimidation or iIl·treatment to which they might
be subjected;

(d)
That have long had many unresolved cases of disappearances. to continue their efforts to
shed light on the fate of the individuals concerned and to set appropriate settlement machinerY in train with
the families of those individuals;
(e)
To make provision in their legal systems for machineI)' for victims of enforced or
involuntary disappearances or their families to seek fair and adequate reparation;

5.

Reminds Governments:

(a)
That all acts of enforced or involuntary disappearance are crimes punishable by
appropriate penalties which should take due account oftheir extreme seriousness under penal law;

(b)
That they should ensure thai their competent authorities proceed immediately to conduct
impartilll inquiries in all circumstances where there is reason to believe that an enforced disappearance has
occurred in territory under their jurisdiction;
(c)
That, if such belief is borne out, all the perpetrators ofenforced or involuntary
disappearances must be prosecuted;

(d)
That impunity is simultaneously one of the underlying causes ofenforced disappearance
and one of the major obstacles to the elucidation of cases thereof;

6.

Expresses:

.
(a)
Its thanks to the many Governments that have cooperatedwith the Working Group and
replied to its requests for information and to the Govemments that have invited the Working Group to visit

UNCLASSIFIED
FP0864

.

.

UNCLASSIFIED
their countries, asks them to give all necessary attention to the Working Group's recommendations and
invites them to inform the Working Group ofany action they take on those recommendations;

(

(b)
Its satisfaction to the Governments that are investigating, or developing appropriate
mechanisms to investigate, any cases ofenforced disappearance which are brought to their attention, and
encourages all the Governments concerned to expand their efforts in this area;

7.
Invites States to take legislative, administrative. legal and other steps, inclUding when a
state ofemergency has been declared, to take action at the national and regional levels and in cooperation
with the United Nations, if appropriate through technical assistance. and to provide the Working Group
with concrete information on the measures taken and the obstacles encountered in preventing enforced,
involuntary or arbitrary disappearances and in giving effect to the principles set forth in the Declaration;
8.
Takes note of the assistance provided to the Working Group by non-governmental
organizations and their activities in support ofthe implementation of the Declaration and invites those
organizations to continue their cooperation;

9.
Acknowledges with great concern the difficulties encountered by the Working Group in
the accomplishment of its mandate and requests the Secretary-General:
(a)
To ensure that the Working Group receives all the assistance and resources it requires to
perform its function, including supporting the principles of the Declaration, carrying out and following up
on missions lind holding sessions in countries that are prepared to receive it;
(b)
To provide the reSOUtces needed to update the database on cases of enforced
disappearance;

fOT

(c)
To keep the Working Group and the Commission regularly informed of the steps he takes
the wide dissemination and promotion ofthe Declaration;

10.

Requests the Working Group to report on its activities to the Commission at its flfty-ninth

session;
11.
Takes note of Economic and Social Council decision 20011221 of4 June 2001 in which
the Council endorsed the decision ofthe Commission to create an intersessional open-ended working
e!P' with the mandate to elaborate a draft legally binding normative ~nt for the protection ofall
persons from enforced disappearance;
12.
Welcomes, in this regard, the report of the independent expert (EiCNAI2002171), which,
in accordance with Commission on Human Rights resolution 2001146, wiII be presented to the
Intersessional working group established pursuant to that resolution, at its fIrst session;

13.
Requests the Intersessional working group, which will meet before the fifty-ninth session
of the Commission for a penod of 10 working days, to_~, for consideration and adoption by the
General Assembly, a draft legally binding normative instrWnent for the protection ofall persons from
enforced disappearance, on the baSIS of the Declaration on the Protection of All Persons from Enforced
Disappeanmce. in the light of the work of the independent expert and taking into account, inter alia. the
:
draft international convention on the protection of all persons from enforced disappearance
(EiCNA/Sub.211998/19. annex) transmitted by the Sub-Commission in its resolution 1998125 of26 AuguSt
1998;
14.

Decides to consider this matter at its fifty-ninth session under tbe same agenda item.
5 JSI meeting
23 April 2002

[Adopted without a vote. See chap. XL)

UNCLASSIFIED
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12uestion of enforced or involuntary

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Page 1 of4

RELEASED IN FULL
UNITED NATIONS HIGH COMMISSIONER
FOR HUMAN RIGHTS

Question of enforced or involuntary disappearances
Commission on Human Rights resolution 20tll/46

The Commission on Human Rights,
Recalling its resolution 20 (XXXVI) of29 February 1980, in which it decided to establish a working
group consisting oHive of its members, to serve as experts in their individual capacity, to examine
questions relevant to enforced or involuntary disappearances, its resolution 1995/75 of8 March 1995 on .
cooperation with representatives of United Nations human rights organs, and its resolution 2000/37 of
20 April 2000,
Recalling also General Assembly resolution 47/133 of ] 8 December 1992, by which the Assembly
adopted the Declaration on the Protection of All Persons from Enforced Disappearance as a body of
principles for all States, and Assembly resolution 55/103 of 4 December 2000,

Deeply concerned in particular by the increase in enforced or involuntary disappearances in various

(

regions of the world and by the growing number of reports concerning harassment, ill~treatment and
intimidation ofwitnesses of disappearances or relatives ofpersons who have disappeared,

Emphasizing that impunity is simultaneously one of the underlying causes of enforced disappearances
and one of the major obstacles to the elucidation ofcases thereof and that there is a need for effective
measures to combat the problem of impunity,
Welcoming the fact that acts of enforced disappearance, as defined in the Rome Statute ofthe
International Criminal Court (AiCONF.183/9), come within the jurisdiction of the Court as crimes
against humanity.
I. Takes note of the report submitted by the Working Group on Enforced or Involuntary Disappearances
(E/CN.4!2001l68) pursuant to Commission resolution 2000!37 and of the replies received by the
secretariat on the draft international convention on the protection of aU persons from enforced
disappearance (E/CN.4/200l/69 and Add. I);

2. Stresses the importance afthe work of the Working Group and encourages it, in the execution of its
mandate:
(a) To continue to promote communication between families of disappeared persons and the
Governments concerned with a view to ensuring that sufficiently documented and clearly identified
individual cases are investigated and to ascertain whether such infonnation falls under its mandate and
contains the required elements;

(b) To continue to observe, in its humanitarian task, United Nations standards and practices regarding
the handling of communications and the consideration ofgovernment replies;

http://www.unhchr.chlHuridocdalHuridoca.nsffrestFrame/318687fOc5b02860c1256a4100450c4.1I3/03

~ UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClnE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0866

Q~estion of enforced or involuntary

,

(

UNCLASSIFIED

Page 2 of4

(c) To continue to consider the question of impunity in the light of the relevant provisions ofthe
Declaration on the Protection of An Persons from Enforced Disappearance and of the final reports
submitted by the Special Rapporteur appointed by the Sub-Commission on the Promotion and Protection
of Human Rights;

(d) To continue to pay particular attention to cases of children subjected to enforced disappearance and
children of disappeared persons and to cooperate closely with the Governments concerned in searching
for and identifying these children;
(e) To pay particular attention to cases transmitted to it that refer to ill-treatment, serious threatening or
intimidation of witnesses of enforced or involuntary disappearances or relatives of disappeared persons;

(j) To pay particular attention to cases of disappearance of persons working for the promotion arid
protection of human rights and fundamental freedoms. wherever they occur. and to make appropriate
recommendations for preventing such disappearances and improving the protection ofsuch persons;
(g) To continue to apply a gender perspective in its reporting process, including in infonnation
collection and the fonnulation of recommendations;

(h) To provide appropriate assistance in the implementation by States ofthe Declaration and of the
existing international rules;
(i) To continue its deliberations on its working methods and to include these aspects in its report to the
Commission at its fifty-eighth session;

(

(;) To continue to fonnulate comments on the draft intemational convention on the protection of all
persons from enforced disappearance (E/CNA/Sub.2/1998/19. annex) transmitted by the SubCommission in its resolution 1998/25 of26 August 1998;

3. Deplores the fact that some Governments have never provided substantive replies concerning the
cases of enforced disappearances in their countries or acted on the recommendations concerning them
made in the reports of the Working Group;

4. Urges the Governments concerned:
(0) To cooperate with the Working Group and help it to carry out its mandate effectively. in particular
by inviting it freely to visit their countries;
(b) To intensify their cooperation with the Working Group on any action taken pursuant to
recommendations addressed to them by the Working Group;
(c) To take steps to protect witnesses of enforced or involuntary disappearances and the lawyers and
families of disappeared persons against any intimidation or ill-treatment to which they might be
subjected;

(d) That have long had many unresolved cases of disappearances, to continue their efforts to shed light
on the fate of the individuals concerned and to set appropriate settlement machinery in train with the
families of those individuals;
(e) To make provision in their legal systems for machinery for victims of enforced or involuntary
disappearances or their families to seek fair and adequate reparation;

http://www.unhchr.chIHuridocdaIHuridoca.nsfITestFrame/318687fOc5b02860c1256a4100450c...I 13/03

UNCLASSIFIED
FP0867

Q~stion

ofenforced or involuntary

UNCLASSIFIED

Page 3 of4

5. Reminds Governments:
(

(a) That all acts of enforced or involuntary disappearance are crimes punishable by appropriate penalties
which should take due account of their extreme seriousness under penal law;

(b) That they should ensure that their competent authorities proceed immediately to conduct impartial
inquiries in all circumstances where there is reason to believe that an enforced disappearance has
occurred in territory under their jurisdiction;
(c) That, ifsuch beliefis borne out, all the perpetrators of enforced or involuntary disappearances must
be prosecuted;

(d) That impunity is simultaneously one of the underlying causes of enforced disappearances and one of
the major obstacles to the elucidation ofcases thereof;
6. Expresses:
(a) Its thanks to the many Governments that have cooperated with the Working Group and replied to its
requests for infonnation, and to the Governments that have invited the Working Group to visit their
countries, asks them to give all necessary attention to the Working Group's recommendations and invites
them to infonn the Working Group of any action they take on those recommendations;

(

(b) Its satisfaction to the Governments that are investigating, or developing appropriate mechanisms to
investigate, any cases of enforced disappearance which are brought to their attention, and encourages aU
the Governments concerned to expand their efforts in this area;

7./nvites States to take legislative, administrative, legal and other steps, including when a state of
emergency has been declared, to take action at the national and regional levels and in cooperation with
the United Nations, ifappropriate thro!lgh technical assistance, and to provide the Working Group with
concrete infonnation on the measures taken and the obstacles encountered in preventing enforced,
involuntary or arbitrary disappearances and in giving effect to the principles set forth in the Declaration;
8. Takes note of the assistance provided to the Working Group by non-governmental organizations and
their activities in support of the implementation of the Declaration and invites those organizations to
continue their cooperation;
9. Decides to renew, for a three-year period. the mandate ofthe Working Group of five independent
experts entrusted with the task of investigating enforced or involuntary disappearances;

10. Requests the Working Group to report on its activities to the Commission at its fifty-eighth session;

11. Requests the Chairperson of the fifty-seventh session of the Commission, after consultations with the
Bureau and the regional groups, to appoint an independent expert to examine the existing international
criminal and human rights framework for the protection ofpersons from enforced or involuntary
disappearance, taking into account relevant legal instruments at the international and regional levels,
intergovermnental arrangements on judicial cooperation, the draft international convention on the
protection of all persons from enforced disappearance transmitted by the Sub-Commission in its
resolution 1998/25, and also comments of States and intergovernmental and non-governmental
organizations, with a view to identifying any gaps in order to ensure full protection from enforced or
involuntary disappearance and to report to the Commission at its fifty-eighth session and to the working

http://www.unhchr.ch/Huridocda/Huridoca.nsfffestFrame/318687fOc5b02860c1256a4100450c...1/3/03

UNCLASSIFIED
. .- -

.~..

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Qt!lestion of enforced or involuntary

Page 4 of4

UNCLASSIFIED

,<

group established under paragraph 12 Qfthe present resolution at its first session;

(

12. Decides to establish, at its fifty-eighth session, an inter-sessional open-ended working group of the
Commission, with the mandate to elaborate, in the light of the findings of the independent expert, a draft
legally binding normative instrument for the protection of all persons from enforced disappearance,
taking into account, inter alia, the draft international convention on the protection of all persons from
enforced disappearance transmitted by the Sub-Commission in its resolution 1998/25, for consideration
and adoption by the General Assembly;
13. Requests the Secretary-General:
(a) To ensure that the Working Group on Enforced Disappearances receives all the assistance and
resources it requires to perform its function, including supporting the principles of the Declaration,
carrying out and following up on missions and holding sessions in countries that are prepared to receive
it;

I

(b) To provide the resources needed to update the database on cases of enforced disappearance;

I'

(c) To keep the Working Group and the Commission regularly informed of the steps he takes for the
wide dissemination and promotion of the Declaration;

14. Decides to consider this matter at its fifty-eighth session under the same agenda item;
15. Recommends to the Economic and Social Council the adoption of the following draft decision:
(

[For the text, see E/CN.4/20011167 - E/2001123 chap. I, draft decision 26.)

I..

73rd meeting
23 April 2001
[Adopted without a vote. ]

t!Q.ME I SITE IIlAP I SEAItCK I INDEX I OOCUMENTS I TREATIES I MEETINGS I PRESS I STATEMENTS

© Copyright 1996.2000
Office orthe United Nations High Commissioner for Human Rights
Geneva, Switzerland

http://www.unhchr.chIHuridocdaIHuridoca.nsfffestFrame/318687roc5b02860c1256a4100450c...1/3/03

UNCLASSIFIED
FP0869

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~&~ O/¥Ij

RELEASED IN FULL
Groupe de travail intersessions a
composition non Iimitee, charge
d'clnborer un projet d'instrument
normatif juridiquement contraignant
pour la protection de toutes les
personnes contre les disparitions forcees
Premiere session
Geneve, 6-17 janvier 2003

<:J

E/CN.4/2003/WG.22/Misc.2

-

(.£~

Point 6 de l'ordre du jour

PROJET DE GUIDE DE DISCUSSION
Propose par Ie President
DISPOSITIONS DE SUBSTANCE

1. -

Definition.

2. -

Incriminations et sanctions.

A. - Incriminations.
Actes et personnes punissables.
B. -

Peines encourues.

3. - Protection cootre l'impunite.
Questions relatives ala prescription, aux immunites. aux demandes d'asile, a l'amnistie
et a la grace, et autres causes d'exoneration OU d'attenuation de la responsabilite penale.
4. -

Poursuites et cooperation internationale.

A. - Competence et poursuites au plan national.
B. - Cooperation internationale.
Extradition, entraide judiciaire, entraide humanitaire.
5. -

Prevention.

A. -

Controle des detentions.

B. -

Formation des personnels.

6. -

Victimes.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE In: 23 JUN 2009 200706444

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FP0870

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UN~LASSIFIEp

MISSION PERMANENTE DE LA FRANCE
.
AUPRES DE L'OFFICE DES NATIONS UN-IES":'--

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RELEASED IN FULL

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lVorklng'grollpe on enforced 'disappearoee8' (l-S september 2003)

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As promised, p(eue ftmh~.dosed.the in\'ltatJcm by the .ecntarlat for the infonnal COIII"!ltaQODS
. as ·weD. as the do~t tile ciaakman..Rapporteur prepared for September (FreDch aDd l:lIlglith .
; venions). Do not hesitate to contact us .yol1 have any qU-tiOD or CODJDlent. Have a Dice I:IIY.
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:';.:. UNITED STATES DEPARTMENT OF STATE
REVIEW AUTlIORITY: ARCIDE M:BOLSTER
{·:··.DAT~/CASE W: 23 JUN 2009 200706444

I

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FP0871

, UNCLASSIFIED
....
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Definition

:..:

.

Au SCDS du present instnmient, la disparition forcee est
• la privation de Jiberte sous que.lque fonne que ce soit ;
• suivio de 1a negation de cette privation de libcrt6 ou la dissimulation du sort rCserv . a la
pers~;
.
.• avec pom consequence la soustr8Ction de lapersonne disparue ala proteetion. de la loi

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FP0872

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j,

'Ineri.iilloations et sanctions
1- La dispariti~ forcee constitue ~ infraction pena1c
,.•' la disp8rltion foxcee est un crime Iorsqu'elle est commise par des agents de l'Etat p: ',~ des:'
personnes au des groupes qui agissent avec l'autorisatiOD, l'appui ou r8Ctiuicscem~ .It de
rEtat ou lorsqu'elle est commise par un groupe orgaois':.
• La disparltion furbee,est un crime coutJ:e .1·humanite lo-rsqu'eUe est commiBe dans Ie :}adre
d·un~· attaqile generaIiB6e ou systematique lancee contre toute population civile :t en
comWSsaDce de cette attaipJe.

ou

...

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:

. 2- Sont aUssi des infiactio~ ~ :
.
• La complicite (exemples : aide materielle, instigation, etc)

• . La tentative

• .L' entente en we de commettre une disparition rorcee

.

.

.

a sa
gravite. L·Etat p~e pout prevoir " '
• des circo~ces' aigxawutes. loisque Ie crime est per:petr6 a l'encontre d·une pe:~;onne
, :. ··particUlieremen.t vuJDerable,
.' des circoiJBtanees attenU81ites, 101'BqUC les personnes impliqu6e dans la commission du :mme
~ollent volontaimnent et efficacem.ent al'Clucidation de cas de disparition forc6e.
3- Le ~rime de disparition forcCc est passible d'~ peine appropriee. proportionne1L:

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:':'

,

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.

4- Le sUperieur hierarc.mqU.e est peoalemem responsabJe' des w.sparitiOl1S forcees commi! ;~ pat ..
ses suboidonnes.

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FP0873

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Protectio~ tODtre l'imp~e

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forcee De

peut !1re justifiee ni par la loi, ni par un ordret ni pl" les

eircobsumccs•

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prescription comlJu:nc,,' it courir apartir du jour au Ie sort de la perlIOnne diBparue est

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avec certitude.

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moins Cga1 au etelai Ie plus long prew daDs la legi! 1ation

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.

3- Les mesures de gnice, d'amnistie et autres mesures de cl=ence ne privent pas ItS vHimes
de,la possibilitC d'~btclrir reparation.
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competents pour juger Ie crime.
4- En l'absenee d'eXtradition, l'Etat partie sur Ie territoire duquel se trouve la 'pe ~>onne
souP90nnee d'w crime de 'disparition fotc6e soumet l'aifairO ases autorit6s competente.! pour'

J'exercice de J'action~e.

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'~it et emegistre toqf.e infomsation ou plaiDte relati~e .. J:!D.e, disparition fozcee '
Ouvre \!PC CBqUste,
deJai, de SOD propre 'chef OU la,demande du plaignant, s'U :xi.ste
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concernant we disp~tionforcee enlans 18 recherche des victimes de disparition forc6e.

2- Lea ptats parties s'sccordent I'aide 1a plus large possible pour porter secours aux Yictin " de
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,de liberte.

2- Toute periionnes privee de liberte ainsi que loute pe::tSonne ayant un interet l~gitimc a Ie
, deaiander '8 Ie 'droit ~derogeab~e d'~, selon ,une procMure d'urgence, un ,re ::oun
,:etrectifpour q~e soient "diterminCs Ie lieu et lcs motifs de ]8 ~tion.

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vernier que Ia PC~DDC: 8 bien ete rel8ch6e, danJ Ie plein respect de ses droits.

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,

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.
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approprie vers sa famille'd'ori,gine. L'interet sup6rie\u' de I'enfant doit etre pm en com 'te et
~n opinion don &ire teCUeillie.

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1: Signature. ratification. entree en vigueur
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(bE. 2-63

Proposal of the United States delega)ion
Concerning Article 19 of the 1998 Draft Convention

States Parties shall ensure that the training ofpublic law enforcement personnel and
officials includes the necessary education regarding the provisions of this Convention,
. with a view to:

(a)

preventing the involvement ofsuch personnel and official6 in forced
disappearances;

(b)

ensuring t'e(lognition of the importance ofprevention and investigation of
such disappearances; and

(c)

ensuring recognition of the need for urgency in resolving such cases.
,

\.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHOIUTY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED

/
FP0882

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Intervencion de la Republica Argentina sobre el Proyeeto de Convencion para la
protel:ci6n de todas las personas contra las desapariciones forzadas.

18 sesi6n del Consejo de Derechos Humanos de las Naciones Unidas
27 de junio de 2006.

Senor Presidente:

La Argentina respalda par entero la intervenci6n del GRULAC sobre el proyecto
de Convenci6n para la proteccion de todas las personas contra las desapariciones
forzadas.
Esta Delegaci6n desea destacar que en esta materia tan dramatica y urgente, la
opini6n publica mundial espera mucho de las iniciativas de este Consejo de Derechos
Humanos.
Los primeros proyectos de convenci6n en la materia se presentaron en los foros
internacionales hace ya exactamente 25 anos.
En la Organizaci6n de las Naciones Unidas se aprobO una Declaraci6n en 1992.
En la Organizac:i6n de los Estados Americanos se adopt6 una Convenci6n en
1994.

...

A fines de los ailos 90 el experto Louis Joinet present6 un proyecto de
. Convenci6n universal a la Subcomisi6n.
En el ano 2003 comenz6 sus trabajos el Grupo de Estados de composici6n abierta,
bajo la presidencia del Embajador de Francia Bernard Kesedjian, que culmin6
exitosamente' sus trabajos el 22 de septiembre de 2005 con el proyecto que hoy
consideramos, el que tue aprobado par consenso.
La protecci6n contra las desapariciones forzadas es una cuesti6n clave en la
promoci6n y la defensa de los derechos humanos.
Por ello en el Grupo de Redacci6n, en medio de la diversidad propia de diferentes
regiones y sistemas, hubo coincidencias decisi"as, que se afirmaron claramente en Ja fase
final de los trabajos, respecto de cuestiones fundamentales.

EI resultado fue un proyecto de convenci6n equilibrado que tiene en cuenta tanto
la prevenci6n como la protecci6n contra este flagelo.
Contribuyeron al avance de la redacci6n los excelentes aportes te6ricos y
practicos de organizaciones no gubernamentales de derechos humanos.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP0883

UNCLASSIFIED

Senor Presidente:
Este proyecto de Convencion viene a Henar un vacio que todavia existe en la
protection internacional de tos derechos y libertades fundamentales.
Baste senalar que esta norma convencional garantiza como un derecho humano, el
derecho a conocer la verdad sobre las circunstancias de una desaparici6n forzada y la
suerte de la persona. desaparecida, con 10 que confirma una evolucion reciente del
derecho internacional de los derechos humanos en la materia a la que mi pais, como es
sabido, ha hecho una significativa contribucion.
19ualmente en el texto adoptado en septiembre ultimo se previene y sanciona
penalmente ta apropiaci6n de ninos sometidos a desaparicion forzada y se reafirma el
principio de restitucion a la familia de ongen.
EI proyecto establece, entre otros, un mecanismo novedoso de acciones urgentes
para la bUsqueda de personas desaparecidas, a veces denominado "habeas corpus
internacional".
Esta funcion estrictamente humanitaria y preventiva es una de las principates
atribuciones del Comite sobre la Desaparici6n Forzada de diez expertos independientes
creado por este nuevo instrumento intemaCional.
"
Teniendo en cuenta los proyectos de reforma de las Naciones Unidas y de su
maquinaria de derechos humanos, el texto preve Ja relini6n de una Conferencia de
Estados Partes, no antes de cuatro ailos y no mas tarde de seis anos despues de la entrada
en vigor de la convenci6n, para evaluar el funcionamiento del Comite y decidir en
consecuencia sabre el organo de" aplicacion del instrumento.
La adopcion del proyecto de convencion significanl un gran paso, largamente
esperado por el movimiento de derechos humanos en el mundo, en 18 lucha contra la
impunidad y en favor de la prevencion de esas graves vioJaciones de los derechos
humanos constituidas par las desapariciones fol'Zadas de personas.
Como afirmo en el segmento de alto nivel el canciller argentino Embajador Jorge
Taiana eI lunes pasado, la Convenci6n est! lista para ser adoptada y la R.epublica
Argentina, como un pais que ha contribuido con empefio a su redacci6n, hace votos para
que su adopcion sea uno de 108 principaJes lagros de esta primera sesi6n del Consejo.

UNCLASSIFIED
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IORO

Statement of the
lN1ERNATIONAL COMMITTEE OF THE RED CROSS

to the United Nations Human Rights Council
concerning the draft International Convention on the Protection of
aU Persons from Enforced Disappearance

CHECK AGAINST DELIVERY
Geneva, 27 June 2006

Mr Chairman,
At this first session, an issue comes before Human Rights Council that is of particular
importance for the International Committee of the Red Cross (lCRe): the draft Convention-for

the

Protect~on

of afl Persons from Enforced Disappearance.

The Commission on Human Rights had a long tradition of developing new human rights
treaties and norms, and the International Committee of the Red Cross (ICRC) has
participated in many of Its endeavours. It has followed the drafting of the Optional Protocol to
the Convention on the Rights of the Child on the involvement of children in armed conflict, of
the Convention against Torture and of Its Optional Protocol.,t~rll~m~>I?Ht~ few.
.
The latest of such instruments is the draft Convention on the Protection of All Persons
against Enforced Disappearances that comes before the Human Rights Council at this first
session. The ICRC has followed the work of the Working Group mandated to draft the
Convention very closely and supports the efforts to adopt the draft.
The ICRe is deeply concerned about the fale of forcibly disappeared persons; they are
abducted and detained. sometimes killed, and their families are kept in the dark about their
fate.
.

Enforced disappearance constitutes a violation of international humanitarian law and of
human rights~ both in international as well as in non-international armed conflict. It violates,
or threatens 10 violate, a number of fundamental customary rules such as the prohibition of
8rbitrary deprivation of Uberty, the prohibition of torture ;:tnd other cruel -.md inhuman
iJp.:::ltment, ."nd 11'1('1 prohih;tion of murder. I.. A8vinq f;;lInilil,!S without n'~WG ::Jbol.lt ihe :jilu::llinn
Illd ·.~~Hr:~;.IIJ,j1/t:; -)1' i:I"7if' ,':!t.;/Uv.):; ,I')! 'lilly f't;~.;:~~.; ill'm ;~l :·1 .flU:·.l';'I,· -)1' "rlj,.::1 '11!':I;rt;·~illi.y ;1 , '1
"j.;/ t.lf~rll;;III)" 1I1'~ d!Jll( to {'Ullify iil<-J ;·1(111 ,If U'lI'! f:'IIIIt1i,~~j' d'.lili \lJ krll:"" d!l~ r'lt~ 'JI i.:I'~,r (~!;llf\iI';'"
jJrnllibili'JI1 1Jf elll,)(,;,~d t./i::;apP'~~lfi:ll1,.;e. Ij[(e ;:111 n !18S ,)1 ! !I.ill 1:,11 lI(::lr;:;lrI J.,I'N. ;·t!j"w~.; r,)r f I·.J
No ':nr, (l0 ::i(:,,,'8 '11' ~x";~p!jl)n, nfJ irnr.;er:ll.;\J0 ",~a:;rJrl ,:1 (:lJir:I1;~1 :;;8,;r Irily '::'11) it.d.:ry
·:,lr'lr,;'!d rli·~:·lppp.:~r:·\I1"~. ·11.1:,1 :~:.; 1)1) :)t:~tf~. 'J(l,lIp ·wi-vli',i·!".,,!'i:; ·lb')\.,~ 1.I'!''1 1;1'.". :') :il) 'J:~r·;"".
· .. In \.;..! ~;I:·I\;'.:d' ,'1i.:;I' I;~ ;:ll··ll.·.I'·V: '111fr)l'r:r-lt} • 1i:.;::lPI;;~::lr:1I1-;'~ i.r';.,·; l.t) !') if ,·;t do: It.
n I·'!

:;ff;r~ptjl)f1.

UNITED STATES DEPARTMENT OF STATE

BEST COpy AVAILABLE
UNCLASSIFIED

RE~W\~trf.H'amv!lltl{~~''M~'f~1Wail<.12<1'2 Ctloeva. Swil~"flm\d T ,<11 22 7346001 F 041 227332057 w",w,jere.org

DATE/CASE ID: 23 JUN 2009 200706444

FP0885

UNCLASSIFIED
Once a person has been caused to disappear, it is orten too late. It is beforehand that we
must act. that we must prevent persons from disappearing ~ by registering them, by keeping
track of them. by giving news to their families.
This is why the Convention is so important. It will clearly enshrine those legal obligations of
States which are critical for the prevention of persons from being caused to disappear. All
detained persons must be registered in officially recognised places, have regular contact with
their families. and benefit from legql procedural guarantees. For the first lime, these
obligations will be codified in a legally binding human rights treaty, appUcable at all times. It
will also enshrine the right of families to know the fate of their relatives, one of the pillars on
which all rules on missing persons must rest.
For its part, the ICRC strives to prevent or put an end to disappearances. Regular visits to
detention centres are one of the principal means used by the ICRC to achieve this aim. Last
year, among the 500'000 detainees who benefited from JCRe detention activities, the leRC
followed more than 46'000 detainees individually in about 2'500 places of detention. About
26'000 were visited for the first time by the JCRe and registered. Our delegates transmitted
about 100'000 Red Cross messages between detainees and their ramilies. Bringing news to
the families is a standard modality of ICRe's detention work on behalf of detainees.
ICRC registration contributes to prevent disappearance, as it enables us
detainees individually and to search actively for their whereabouts. The ICRC
numerous requests from families who are looking for lost reratives and our
everything they can to trace them, re-establish the family link and, in some
families in their specific needs.
.

to follow the
also receives
delegates do
cases, assist

Together with the International Red Cross and Red Crescent Movement, the ICRC also
seeks to raise awareness about the tragedy of people unaccounted for as a result of armed
conflict or other forms of violence and about the angUish of their families.
Mr Chairman
Much more still needs to be done against enforced disappearance. At the 28 th InternaUonal
Conference of the Red Cross arid Red Crescent of 2003 the· Red Cross and Red Crescent
Movement and States committed themselves in the Agenda for Humanitarian Action to
respect and restore the dignity of missing persons and their families. The ICRC therefore
calls on all States to put even more effort into preve.nting persons from going missing and
alleViating the suffering caused by it.
Enforced disappearance is a phenomenon that still exists in different parts of the world and
produces anguish. fear and unspeakable sorrow for thousands of families. The leRC
witnesses this plight everyday in its work. The urgency of the need to eradicate the
phenomenon of enforced disappearance is too great to delay the adoption of a new tre:Jty
that oullaws it. There can be n6 doubt that this Convention will contribute to greater le'J~l'
protection of per::>ons (mm being .causHd to rjisappear, :;lrId the tCRC Ihc~refQfe stron~~ly
:~II'~oll"8'Je!> U'P- 1·1t Ilrnn PiqhtG (~ql.lndl tn "lIlfJpf. it ',11 it.~ fir<;t ·;.~~:,;kJfl.

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UNCLASSIFIED
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_._ a-• • _:-. • • • • • • • • fIIllI 111.1_
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EullAT
O!lhmelch 2006 II: Prns!d"ntscha!1 der Europaischen Union
Austria ~006
Presidency ofllll. European Union
Autriche 2006
Presirlence de l'Union europeenne

*
*

UNCLASSIFIED
RELEASED IN FULL
UNITED NATIONS HUMAN RIGHTS COUNCIL
FIRST SESSION
(Geneva, 19 - 30 June 2006)

Consideration of the report
of the intersessional open-ended Working Group
to elaborate a draft legally binding normative instrument for the
protection of all persons from enforced disappearances

*
**
Statement by H.E. Ambassador Wolfgang PETRlTSCH
Permanent Representative of Austria
on behalf ofthe European Union

Geneva, 27 June 2006

Check against delivery

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 2~:MWi6'6!PP~fJ'1(hJ44?f2 Geneveot +41 22 ~tK:g~m!!T)v@bmaa.9v.at

FP0887

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.4l/str;U/I Pl'es;dencl'o{tJrr EU
Gel/('va. 27 Jl/lle J(106

Mr Chairman,
The European Union would like to thank the president-rapporteur of the working group
for his presentation.
The Acceding Countries Bulgaria and Romania. the Candidate Countries Turkey. Croatia
and the former Yugoslav Republic of Macedonia-, the Countries oftne Stabilisation and
Association Process and potential candidates Albania, Bosnia and Herzegovina. Serbia.
and the EFTA countries Iceland and Liechtenstein members of the European Economic
Area, as well as Ukraine and the Republic of Moldova align themselves with this
declaration.
The working group concluded its work in September 2005. It decided that it had finished
its work and that the draft Convention on enforced disappearances should be transmitted
to the Commission on Human Rights.
The Commission on Human Rights has been working on the issue of enforced
disappearances since the beginning of the 1980's. In the course of several decades, we
have developed a better understanding of this odious crime ; how it violates a large
number of human rights' of the victims. how it is linked to torture and arbitrary detention,
how it violates also the rights of the relatives of the victim and how it is used to silence
and threaten entire populations.
Despite the creation of the working group on enforced and involuntary disappearances
and the adoption in 1992 of the Declaration on the Protection of all Persons from
enforced disappearances, the phenomenon still persists. It is not a crime of the past. It is
not limited to a specific region. Today, on all 5 continents. people disappear and their fate
is never elucidated. The need for an international convention is therefore obvious.
The draft Convention represents a step forward for international human rights. It defines
the crime of enforced disappearances. It organises the fight against impunity of
perpetrators, both at the nationaJ and international levels. It also describes which
preventive measures must be taken. Finally, it creates a committee of independent
experts, to ensure appropriate implementation of the Convention. The European Union
believes that the Convention will be a powerful tool to prevent enforced disappearances
in the future.
The European Union calls for the prompt adoption of the Convention by the Council and
its transfer to the General Assembly this fall.

Croatia and the former Yugoslav Republic ofMacedonia continue to be part ofthe Stabilisation and
Association Process.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
'--"

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RELEASED IN PART
B5, B6

Lee. Michelle G

~l

Hutchinson, Yvonne G
Friday, June 09,20061:02 PM
Ko~ar, Jeffrey 0
RE: Hard Q's and A's for tfle July hearing before the Human Rights Committee

From:

Sent;
To:
Subject:

B5

From~

Kovar, Jeffrey 0
•
Friday, June 09, 20068:53 AM
Barton, paula J; HutchInson, Yvonne G
FW: Hard Q's an<! A's for the July healing before the Human Rights Committee

sent:
To:

Subject:

Please look over ttl~se and let me know if you can think of additional questions the Committee might ask that we should .
prepare answers for. Thanks.
From:

Sent:
To:

I

Schou, Nina E
Friday, June 09, 2006 2:28 AM

•

.

,

; j'mlchael.edney@usdoj.gov';

'Tobi.Longwitl@uSdoj.goV'; 'Brent.Mcwtosh@usaoJ.goV"; waxman, MaMeW; H8tr1es, AWl D; 'Mlke.Davis@dhs.gov;
B6
'Thomas.Monheim@usdoj.gov'; 'ron.rosenberg@dhs.gov'i 'Brlan.Kelllherl@dhs·rv'; I
~
B6
I
ILegon, Mark Pi Noyes, Julieta V (DRL); Hodgkinson, _
.
I
lohn.torres@dlls.goV'; 'bTian.dixon@dhs.gOv'i 'mlchaeJ.davis2@dhs.gov'; 'hainesadl
"Bradley. uU@usdoj.90v'i ni
'Brasure, Ian D, Maj, JCS SJS'; 'qulntana.carlos@dol.gOv'i 'rob.wexler@ed.gov'; 'Laurence.Rothenberg@usdoj.gov';
I
1'lgor.t1mofeyev@dhs.gOv'i!
I Kovar, Jeffrey Di 'MaryBeth West';
'Abdoo, Mark A. {OPHS)'i 'MWynne@OSOPHS.DHHS.GOV'i 'R.Trent.Shores@usdoj.gov'; Ryan, KellYi Kennelly, Nan E; Lum, Unda L
Hill, Steven R; Harris, Robert Ki 'amsurenal
.
I Bentes, Jullanna W; nschoui
I
B6
Hard Q's and A's for the July hearing before the Human Rights Committee

Dg

"

Ct:
SUbject:

, AlIAttached is a list of Hard Q's and A's that we have prepared for use in the ICCPR hearing. As you know, the
fonnat of the pro'ceedings are such that we will need to respond to questions posed by the Committee in the
same meeting in which the questions are raised. For this reason, we need to prepare. as much canned material as
possible. We have come up with the following list based in large part on the many NGO submissions the
Committee has already received. Julianna already circulated the link to these reports previously but I'm
enclosing it again for your reference. [ http://www.ohchr.orglengJish/bodies/hrc/87ngoinfo.htm ]
In a couple of instances where the issue areas are so vast we have specifically requested particular agencies to
provide additional Q's and A's that they think may be necessary_ Even if we have not specifically requested it,
as we have said before, we would also welcome any additional Q's and A's that agencies may consider relevant,
based in part, for example on Congressional, press or NGO inquiries.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIllEM BOLSTER
DATE/CASE In: 06 A,UG2009 200706444

UNCLASSIFIED
FP0889

UNCLASSIFIED
Requests/Explanations to particular agencies NSC - Please forward this to an appropriate contact at HUD and advise them to get in touch ~irectJy with me.
D0J - Many of the questions are directed to you. In a handful of cases we were able to supply an~wers to DOl
questions based on the CAT questions. We would recommend that you review those answers and supplement
as necessary.
,
DOD ~. we have assigned a handful of questions to you on your own. There are also a large number assigned
to DOSIOOD, which means that the 'questions concern DOD programs, but DOS will draft an answer based on
material prepared for the CAT hearing. Unfortunately we have not had time to include those answers at this
time, but we will be working on that in the coming weeks.
HUD and DoEd - there are a couple of reports concerning homelessness and while these questions may appear
tangentially related to the Covenant we nevertheless think it wise to prepare them.
HHS - You will note several questions relating to reproductive health issues in particular. We may ultimately
include more.
Timing and clearances -.
.
There will be an opportunity for all agencies to review and clear the entire package ofQ's and A's Qpce they are
completed. However, if in reviewing the document, a particular agency believes it shol:11d weigh in on a
question that has been assigned to another agency, please let me know and I wiJI put you in touch with the
appropriate agency POCo
As was mentioned at last week's meeting at the NSC, the deadline for submitting answers on these Q's is'
Friday, June 29 th•

Please be sure to send your agency's submission to schoune@state.gov, bentesjw@state.gov,
amsurellil/
Ihillsr@state.gov, and harrisrk2@stat~.gov.
~'

B6
.~

Once we receive the draft answers, pOS will review them and recirculate the packag~'to you all for final review
.and clearance.
.
.
Thanks for your help,
Nina Schou
Attorney Adviser
U.S. Department of State
Office of the Legal Adviser
Human Rights and Refugees
202-647-4262

« File: LEGAL-#26442-vl-ICCPR_Hard_Qs_and_As.DOC »

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From:
Sent:
To:
Cc:
SUbJect~

Schou, Nina E [SchouNE@state.gov)
Monday, February 13,20065:22 PM
Kovar, Jeffrey D; Brancato, Gilda M
Hill, Steven R; Harris, Robert K
RE: Daily Telegraph - SRs' report and Guantanamo

cc-ing Steve - as he is the lead on the law of war/DOD issues for the C!'T and ICCPR reports.

From: Kovar, Jeffrey D(Geneva)
Sent: Monday, February 13, 2006 10:16 AM
To: Schou, Nina E; Brancato, Gilda M
Subject: FW: Daily Telegraph - SRs' report and Guantanamo

B5

-----Orlginal Message---From: cassidy, Joseph P
Sent: Monday, February 13, 2006 3:59 PM
To: Robinson, Brooks A; cassel, Lynn L; campbell, Piper; DePlrro, Velia M; Kovar, Jeffrey D
Subject: RE: Dally Telegraph - SRs' report and Guantanamo

B5

----ongmal Message----From: Robinson, Brooks A
.
.
Sent: Monday, February 13, 2006 2:15 PM
To: Cassel, Lynn L; Campbell, Piper j Cassidy, Joseph P; DePirro, Velia M; Kovar, Jeffrey 0; Denig, Paul; Wilbur,
Richard Mj Vasquez, Edgar] (10); Grenell, Richard; Cummings, Monica L; Merante, Joseph
Subject: FW: Daily Telegraph - SRs' report and Guantanamo

UN inquiry demands immediate closure of Guantanamo
http://www. telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/13/wguanl 3.xml&sSheet=/portal/200
6/02/13/ixportal.html
By Con Coughlin, Defence and Security Editor in New York
(Filed: 13/02/2006)
A United Nations inquiry has called for the immediate closure of America's Guantanamo
Bay detention centre and the prosecution of officers and politicians "up to the highest
level" who are accused of torturing detainees.
\
The UN Human Rights Commission report, due to be published this week, concludes that
Washington should put the 5~O detainees on trial or release them.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIflE M BOLSTER
DATE/CASE ID: 23 JUL 2009 200706444

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It calls for the United States to halt all "practices amounting
to torture". including the force-feeding of inmates who go
on hunger strike.

0

=--------'-

The report wants the Bush administration to ensure that all
allegations of torture are investigated by US criminal
courts. and that "aUperpetrators up to the highest level of
military and political command are brought to justice".
It does not specify who it means by IIpolitical command"

but logically this would include President George W Bush.
The demands are contained in the final report of the
commission's working group on arbitrary detention. which
will be presented at its Geneva headquarters in the next few
days. A copy of the report has been obtained exclusively by The Red Cross monitors the
centre at Guantanamo
The Daily Telegraph.
monthly
The report is bound to intensify the already strained relations between the US and the UN
over the Iraq war.
Washington officials yesterday denounced it as "a hatchet job" when informed of the
contents by this newspaper.
"This shows precisely what is wrong with the United Nations today," said a senior
official. "These people are supposed to be undertaking a serious investigation of the facts
relating to Guantanamo.
"Instead, they deliver a report with a bunch of old allegations from lawyers representing
released detainees that are so generalised that you cannot even teU what they are talking
about.
"When the UN produces an unprofessional hatchet job like this it discredits the whole
organisation."
.
The Bush administration has repeatedly called for the UN's wholesale reform. and the
report is likely to lead to demands from Congress for a freeze on Washington's annual
donations.
The authors question the right of America to classify the detainees as "e~emy
combatants" and argue that the "war on terror" is no justif1cation for holding them
indefinitely without charge.
The report is also deeply critical of the US over recent disclosures that some of the
detainees have been subjected to force-feeding when they have gone on hunger strike.
The authors argue that force-feeding is akin to torture. and demands that "the authorities
in Guantanarno Bay do not force-feed any detainee who is capable of forming a rational
judgment and is aware of the consequences of refusing food."

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But US officials refuted the suggestion that force-feeding is torture, arguing that they had
a duty under international law to protect the lives of the detainees.
IIWe have a duty to prevent people killing themselves," said an official, lIand we are
proud of the fact that none of the detainees held at Guantanamo Bay has died since it
opened."
The Guantanamo Bay detention centre was adapted to hold hundreds of al·Qa1eda
fighters captured during the 200 I war in Afghanistan to overthrow the Taliban.
More than 750 detainees have been processed by the facility during the past four years.
After interrogation by US intelligence officers, some have been released and others
returned to their country of origin.
Because the al-Qateda fighters do not wear unifonns and have no allegiance to any
government they are not covered by the Geneva Conventions.
And while there is insufficient evidence to charge most of the 520 detainees with war
crimes, the US insists on the right to detain them to prevent them returning to the
battlefield to carry out further attacks against the coalition.
There have already been at least 12 instances where released Guantanamo detainees have
resumed attacks against the coalition.
US officials are also prepared to return detainees to their home countries, assuming those
countries are prepared to receive them and that they will not be subjected to torture on
their return.
While American officials are prepared to concede that there are conflicting
interpretations over how the laws governing international conflict should be applied, they
are furious at the way the investigation was conducted, especially the evidence that the
four "special rapporteurs" who compiled the report have used to reach their conclusions~
Although Washington invited the group to visit Guantanamo at the end oflast year to
inspect the facility, the rapporteurs rejected the invitation after American officials made it
clear that they would not be allowed to meet the detainees.
"They [the rapporteurs] were offered the same access as congressmen responsible for
overseeing the facility, but they declined to take up the offer," said a government official.
"And then they complain that they had no access to doctors or guards - all of which they
were offered."
The Bush administration also challenges whether it is the responsibility of a body such as
the UN Human Rights Commission to investigate Guantanamo.
The International Committee ofthe Red Cross (ICRC), the internationally recognised
body responsible for monitoring detention facilities, visits Guantanamo on a monthly
basis.

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Lee, Michelle G

RELEASED IN PART
B5,B6

Kovar, Jeffrey 0
Friday, April 28. 2006 12:00 PM
DePirro, Velia M
Levin. Jan
RE: Question for the UK

From:
Sent:

To:
Cc:
SUbject:

-I think that's what he intended to do.
From:

Ce:

DePirro, VeJia M
Friday, April 28, 2006 9:21 AM
Kovar, Jeffrey 0
DePirro, Vella M; Levin, Jan

Subjed:

RE: Question for the UK

sent:
To:

s

_ _ _ _ _r
Thanks.

Velia De Pirro
Political Counselor
U.S. Mission Geneva
(41) 22-749-4111

From:

sent:
To:
Subject:

Kovar, Jeffrey 0
Friday, April 28, 2006 7:10 AM .DePirro, Vella M
FYI: Question for the UK

Velia .- Do you know anything about this? It's the first I'Ve heard. I had lunch yesterday withl
mentioned thls even though J mentioned we had CAT coming up. Thanks -- Jeff
From:

sent:
To:

ee:

Subject:

laJid she never

B6

Hams, Robert K
Thursday, April 27, 2006 7:29 PM
lagon, Mark P
Hili, Steven R; Schou, Nina E; Noyes, Julieta V (ORL); Kovar, Jeffrey 0
Question for the UK

Mark,

B5

Thanks.

Bob

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

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9

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.-..,-,

RELEASED IN PART
B6, B5
GE2A

..

~
.~-

DePirro, Velia M
From;

Kovar, Jeffrey D

Sent:

Thursday, March 3D, 20069:21 AM

To:

Johnson, Thomas A; Barton. Paula J

Cc:

Harris, Robert K; Lagon. Mark P; leatham, Rachel M; Rohn, Douglas C; Noyes.
Julieta V (DRL); DePirro, Velia M; levin, Jan

Subject: RE: CAT Hearing--Space for USDEL in Room XVII
Tom -- we'll explore this with the secretariat. My hazy recollection from watching Canada several
months ago was that the members of the delegation that spoke, or directly supported the
speakers, sat in the inner table with the microphones. with the CAT members sitting around them
in the horseshoe. I can't remember the number that can be accommodated there. The rest of
the delegation sat in the first inner row of seats, as i recall. Bellinger as HOD plus one or two will
sit at the podium. - Jeff

From: Johnson, Thomas A
Sent: Thursday, March 301 20063:42 AM
To: Kovar, Jeffrey D; Barton, Paula J
Cc: Harris, Robert K; Lagon, Mark P; Leatham, Rachel M; Rohn, Douglas C; Noyes, Julieta V
(DRL)
Subject: CAT Hearing-Space for USDEL in Room XVII
Jeff/Paula-One follow-up project from the meeting yesterday is to find out from you how much space the
USDEL will have in Room XVII, where I'm told the hearing will be. Everyone understands that
our huge delegation cannot all fit in whatever space we are given, but we want to get as much
space as we can. We assume that the country making its report either sits on the bottom level of
the horseshoe or in a rear side row (as has been done with some guests of CHR), but that would
force some CAT members to turn around and makes less sense. ,
In any event, if the bottom level of the horseshoe is used, can you please explore with the
secretariat if we can have one whole desk (i.e., on the side or middle) and seats behind? Using
the middle desk on the lowest level of the horseshoe might look symmetric and all that, but aren't
there substantially more seats on the sides? If so, can you make a pitch for one of the
side desks?
If they use a back side row, why not try for the whole row?

And jf you can find a diagram of the room somewhere. can you please send a copy back
here? Thanks. Tom
-----Original Message-····
From: Harris, Robert K
Sent: Wednesday, March 29, 2006 7:17 PM
To: Bellinger, John B(Legal); Lowenkron, Barry F (DRL); Barks-Ruggles, Erica J (DRL); Lagon,
Mark P
Cc: Noyes, Julieta V (DRL); Johnson, Thomas A; Legal-l-HRR; amsuren~
~ Kovar,
Jeffrey OJ camponovo, Christopher N.; Sicadel Lynn M (DRL)
Subject: F'N: CAT hearing PCC meeting ~ Monday, April 3.

B6

John, Barry, and Marl<.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 07 AUG 2009 200706444

3/30/2006

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L, ORL and 10 had an in-house planning meeting yesterday to continue our planning for the CAT
hearing May 5-8. We are expecting additional agency comments on the answers to the 196
questions from the Committee Against Torture. and suggest you might want to look at them once
we have incorporated them further.
Highlights:

• We will have a delegation of around 30 officials from State, Justice, DOD, DHS and
perhaps the Bureau of Prisons. (This sounds like a lot, but it is roughly the size of the UK's
delegation when it defended its CAT report in November 2004. The Committee likes large.
high-level delegations as it suggests that the country takes the process seriously.
• A core team will arrive in Geneva on Wednesday to make sure all systems are in place.
We will have a delegation meeting on Thursday afternoon. You will need to determine
whether you want to arrive Thursday morning or be fresher with a Wednesday. arrival.
• We will designate members of the delegation as note takers and as recorders of the." ,
questions we are asked to answer over the weekend.
• SUbject to your approval. we will have short opening statements from Barry and John,
After Barry's opening remarks, John will
the master of ceremonies.
.
• We will have 90 minutes to deliver our opening statement and to give abbreviated answers
to the Committee's questions. The Committee will then ask additional questions. which we
can answer on the spot or answer on Monday. (Most countries choose not to answer
questions on the spot.)
• Once day one is over, the US delegation will fC?rmulate the questi0!1s that were askedD
land begin writing answers.
• Over the weekend, the delegation will write the answers, seeking Washington guidance or
input as needed. The goal, of course, is to get a delegation of sufficient rank that it can
clear its own answers.
• Matt Waxman will be in Europe over that weekend and has offered to come to Geneva
Sunday afternoon to look at the package we have come up with and come to the Monday
session. I told him that we would welcome his fresh eyes and brain, so I think he is
""
planning to come,
• On Monday morning, we will send our answers electronically to the Committee and on
Monday afternoon. we will deliver the answers orally. The Committee will then ask fOIlOWup questions, but there is typically not very much time left for this process. "
• I am going to stay with a core delegation team on Tuesday to write the reporting cable.
We will try to find a way to make sure John and Barry approve it before it is sent.
• Later in the session, the Committee will draft conclusions and recommendations, which
they, as a courtesy, will forward to us 24-48 hours in advance. It will issue them at the end
ofthe session. May 19.

be

I

B5

At Monday's meeting, we will go through this with the agencies, and ask them to designate a
Washington-based team in each agency to assist the delegation.

In case you do not yet have a headache, here is more detailed information about the session,
which we received from the UN Secretariat via our Mission in Geneva in February. My points
above have included the highlights.
.
","
,"

, ~. '.

,

.

",

CONDUCT OF THE SESSIONS
The U.S, will have 1 1/2 hours the first morning for its presentation. Morales said this limit will be
strictly followed by the Committee so that the members will have the same amount of time to

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pose questions.
Morales suggested that not more than 15 minutes be devoted to a head of delegation opening
statement. Effective use of this time would be to highlight any new developments, and to give a
positive sense for the general U.S. approach to implementation, policy frameworks, etc.

.

,

Following the opening statement t~e remaining time will be devoted to answering the
Committee's written questions. This can be used to read the written answers into the record, but
in most cases delegations offer summaries of the written answers. Morales noted that some
states continue to use the head of delegation for this. Others, like the UK, have turned to the
members of the delegation with technical expertise. The head of delegation will. control the floor.
and there will be several microphones available for members of the delegation, who will therefore
not need to come to the podium to provide information.
..
'
As for the format of the U,S. replies, Morales and Nataf urged that we stick to the questions the
way they are presented. If we present answers that cover more than one question, it is important
to indicate precisely which ones are being answered. In that connection, the Committee has '
reformatted the U.S. report by numbering each paragraph and incorporating the updated Annex
presented at the time of the ICCPR Report. It is important for us to refer to our report according to
these new paragraph numbers. The reformatted'version was provided to us and will be scanned
and emailed to you on Monday when the OMS in our section is in the office.
.
The rest of the session will be devoted to statements and questions from members of the
Committee. The delegation may reply to questions on the spot. but most delegations simply take
note of them, then prepare responses overnight for presentation the following ,day. Nataf pointed
out that some questions are repetitive and many overlap, and may be regrouped as necessary.
The session will reconvene the following afternoon, and the U.S. will have 45 minutes to reply to
the Committee's questions. Morales noted that we would be held pretty strictly to this time limit.
so should carefully pace our replies to get them all out. She recommended being concise so that
we could cover all points in a balanced way
The Committee may then make statements and pose follow-up questions for 45 minutes, and the
U.S. will in principle have a 15 minute right of reply at the end. Morales noted, however, that there
is rarely 15 minutes left at the end, and said we should plan for no more than 5 minutes of reply.
At the end. the Committee generally offers the delegation the possibility to submit additional
information in the next day or two, but Morales noted that she could never recall a state actually
doing so.
The Committee will then provide an advance, unedited version of its concluding comments 24-48
hours before the end of the session. That version will be made public. subject to translation and
final clean-up. at the concluding press conference on Friday May 19. There is no requirement for
delegations to stay until this event, and local Ambassadors are no longer expected to attend, The
Mission can cover it at the appropriate level.
In response to a query whether the Committee would accept audiovisuel or powerpoint
presentations, Morales and Nataf replied that they could recall it once at the Committee on the
Rights of the Child, but that it had created technical complications and delay. They discouraged it
.
because it cou Id be seen as time waster.
"'.'

.

PUBLICATION OF U.S. REPLIES
Morales stated that there are various options for what would go into the record. If the U.S. wishes,
it can ask for its written answers to be published in the official records along with the oral
statements. However, the U.S. may ask that its written answers not be published or distributed.
and the Committee will respect that wish - in such a case only the oral statements would be

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J" published. Morales stressed that all written replies are embargoed for use only of the Committee
•

-members unless expressly authorized for distribution by the state concerned. In response to our
query Morales stated that they are not to be given by the Committee to NGOs in advance of the
session.
NGO COMMENTS
Morales stated that there would be an organizational session the first week of March for the
countries sUbject to review in May (Peru. Guatemala, Qatar. Republic of Korea. Togo, Georgia,
USA). At that time, all NGO submissions would be distributed. After that session we would be
able to get any further NGO submissions from the extranet site the Committee will ~stablish for
that purpose. There is no deadline for submission of NGO comments. In addition, closed
consultation for NGO's would be conducted by the Committee the evening before.th.e first part of
the U.S. oral presentation.
"

a

PUBLIC PARTICIPATION/DISSEMINATION
The session is open to the public. and will be held in the Palais des Nations. The local UN- "
accredited press will have access, as will other press who seek credentials, upon' approval by the
chair. The sessions are taped recorded for the Committee's use, and the press, NGOs. and
governments can ask the Secretariat to make copies if they prOVide blank audio tapes. TV or
video requests must be made through the UN Department of Public Information (DPt). They must
be approved by the Chair of the Committee. DPI will ensure they would not be handled in an
intrusive way. Morales remarked that during India's presentation there was quite a bit of press
and TV participation. In response to our query whether there had ever been a webcast link,
Morales said not to her knowledge. She said that a request would have to be considered if it
came in, but would not/not originate with the Committee itself ("we will not pick the U.S. to be a
guinea pig.").

RAPPORTEURS
Rapporteurs for the U.S. session are Marino and Carrara, who are natives speakers of Spanish
and French. Morales requested that, if any of the information to be submitted by the U.S. can also
be provided in these two languages, that we do so.
:,.'

DOCUMENTS

'.0',

In response to a query whether there were any specific background documents that the
Committee expected to be submitted, Morales said that it would be helpful to submit two copies of
anything cited in the teport. When asked whether a weblink would be adequate, Morales and
Nataf were of two minds .- on the one hand a weblink should suffice, but experience was that
links are often dead or the Committee has difficulties opening them.

Bob
From: Camponovo, Christopher N. [mailto:Christopher_N._Camponovo~
Sent: Wednesday, March 29,2006 6:20 PM
--.-: sc oune state.

Bourke, Michael P.; Brian.Kelliherl@dhs.gov;
• daniel.brown@dhs.gov; ~ ..:
";:D::a:-:vi;:;d~_B~e::r=nL.ha::r::;dt::?@;;:;i":'Os=-.-:rdO:;i-:.g:-:o:-::v,~.D~i":'a=-ne=-::;Be=-a:':"v':'::e'::':r;""T:r'="ew-:!. steinberg@dhs.gov;HarrisRK2@state.gov;
HodgkinsonSL@state.gov; Igor Timofeyev; johnsonTA2@state.gov; lagonmp@state.gov;
OV'

amsurena

B6
B6
B6

laurence.rothenberg@usdoj.gov; matthew.friedrlch2@usdoj.gov; Melear, Pamela S.;
molly.groom@dhs.gov; nader.baroukh@dhs.gov; noyesjv@state.gov; omar.vargas3@usdoj.gov;
.'. "

3/30/2006

UNCLASSIFIED
FP0898

j,

.)':"

I

UNCLASSIFIED

Message

::~'\<'~

Page 5

of5

.

....
'".3:,

...

.,. .

rena.comisac@usdoj.9ovi rob.wexler@ed.gov; roger.sagerman@dhs.gov;
ron.rosenberg@dhs.gov; Ronald.whitney@dhs.gov
Cc: Melear, Pamela S.
Subject: CAT hearing pee meeting ~ Monday, April 3.

.,,'.

We've scheduled a PCC for Monday, April 3 at 2 pm in the EEOB, room 211 on preparations for
the upcoming Convention Against Torture hearing. For those of you on this email distribution
who represent agencies not involved in the CAT hearing, apologies -- feel free to clIck delete.
This email is also a reminder that agency comments on the answers to the Committee's
questions on our Second Periodic Report reo implementation of the CAT were due by c.o.b.
Tuesday, March 28. If you have not already provided your responses to Bob Harris at
Harrisrk2@state.gov please do so as soon as possible, cc-ing Schoune@state.gov,
HiI1SR@state.gov, benteslw@state.gov. In light of all that remains to be done to prepare the U.S.
delegation for the hearing, it is all the more critical that we finalize the answers to the Committee's
questions as soon as possible and circulate them for final agency clearance.
'
The PCC is primarily intended to explain the next steps in preparing the delegation' and also to
explain the actual mechanics of the actual hearing process. An agenda for the meeting is
attached. At that meeting State will discuss the actual structure of the hearing, the amount of
time allotted for the USG defense of its report, and how the USG will divide its time between
opening statements and summaries' of answers to the Committee's numerous questions. how to
handle the additional questions that the Committee will ask during the course of the hearing, and
how to coordinate Interagency clearances for such questions. We will also discuss the additional
work product that must be prepared and cleared by the interagency to prepare the delegation for'
the hearing.
Please respond to Pam Melear (cc'd) with clearance into:
In anticipation of the meeting and the materials we will need to prepare shortly thereafter, we ask
that each agency:
o Finalize their decisions on who will represent their respective agencies for the
hearing. State does not yet have lists for DOJ/CRD and DHS .
,
o DOJ· please consider whether someone from BOP should be represented on the
delegation, or whether support from BOP in Washington should suffice to be
responsive to any additional questions that may arise from the Committee.
o Come up with a list of hard questions that have not been addressed thus far, but
that we may expect the Committee to ask. To the extent possible, we request that
agencies also in a week or two suggest draft answers. (By way of background, the
principal USG human rights NGOs have had numerous opportunities to inform the
Committee of any concerns they have. Thus, to the extent that US NGOs have
raIsed particular issues with your agency that may have some relevance to the
CAT, it would be helpful if you could include those Os and As.)

,-.;

3/3012006

UNCLASSIFIED
FP0899

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UNCLASSIFIED

--.'......

RELEASED IN PART
B3, CIA, B6 G;5

L Press Guidance
May 6, 2005

United states Periodic Report on
Convention Against Torture

!

~e

Q: Is it true that the United States recently fi~ed a
report on its implementation of the Convention Against
Tort.ure and Other Cruel Inhuman or Degrading Treatment or
Punishment ("CAT")? What is this report, and why did the
United States produce it?

A:
•

On May 6, 2005, the United States submitted to the

Committee Against
its

~orture

~lementation

its second periodic report on

of the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or
Punishment ("CAT").

The report. is a routine periodic

update of our :tnitial Report, which was filed in
Oct.ober 1999 .
• Article 19 of the CAT provides that

a~l

Stat.es Parties

shall submit to the Commit.tee Against. Torture reports on
measures they have taken to

~~ement.

the CAT •

• The Convention Against Torture created a body of experts
known as the CaDmittee Against Torture (the "Committee").

\

Among its
\

responsibi~ities,

the Commit.tee reviews

reports submitted by CAT States Parties.
\

•

The report just filed provides an update since the

kTED STATES DEPARTMENT OF STATE
RJi:VIEW AUTHORITY: ARClUE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

.

1

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....-.;:.'t
,"

filing of the Initial Report in 1999 on new
legisla~ion,

relevant

caselaw, policies, and programs and other

informa.~ion

to update the initial report.

The

material provided is comprehensive, as the report
provides an artic1e-by-article discussion of the
various provisions of the CAT.
•

The report also

con~ain8

a lengthy annex on detentions

of individuals under the control of U.S. Armed Forces
in Afghanistan, Iraq and Guantanamo Bay, Cuba,
investigations

in~o

abuse allegations arising

ou~

of

these detentions, and actions to hold personnel of the
U.S. armed forces accountable under the military

t

~

justice system when they have been found to have

i

If
I.

I

committed unlawful acts.
•

The

repor~

has been sent to the Committee Against

Torture, which will post it on their website in

t;

t

l

rf
r

accordance with their standard practice.

We will now

post the report on our own website',
Core themes to emphasize:
• This report demonstrates that the United States takes
its obligations under the Convention Against Torture
seriously.

I

i

2

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• Through an

ex~ensive in~er-agency process

produced a serious
reporting

• We look forward

~o

consistent with our

repor~,

obliga~ions

we have

under the Convention.

engaging in a dialogue on these

issues when we present the report orally before the
Comm:i.~~ee

Against Torture

a~

one of

i~s fu~ure

sessions.
•

As

the President has clearly stated, "America

a9'ains~

s~ands

and wi1.1. not tolerate torture:" We 'take the

prohibition against torture seriously.'
o Every jurisdiction in the United

at

Sta~es,

~he

federal and state level, prohibits torture.
o We have enacted legi.slation to ensure
of

~or~ure

committed

ou~side

~hat

acts

of the United States

by U.S. nati.onals or by forei.qn nati.onals
subsequently found in the united

Sta~es

acting

under color of law are subject to U.S. crimina.1.
jurisdic~ion.

o o. S. 1aw8 also prohibi ~ serious abuses
~or~ure

ac~ing

when they are

wi.thin

commi~~ed

~he Oni.~ed Sta~es

premises of O.S.

mili~ary

by

u.s.

shor~

of

officials

and wi.thin the

or other

Oni~ed S~a~es

Government missions or entities in foreign
States.
3

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-"

• This report documents this robust legal framework and
notes how it has been applied in response to
allegations of abuse. This report makes clear that in
all cases where allegations of torture or other
unlawful treatment of detainees have been made, they
will be investigated, and if substantiated,
prosecuted •
•

In every country in the world there are human rights
violations.
o What is important is having insti tut:ions in place
to investigate them and to provide for
accountability.
o This report acknowledges serious allegations of

abuse by offioials acting within the United
states and abroad.
o

'!'he United States takes seriously any credible
allegati~n

of abuse by any government official,

whether at the federal or state level, by the
military, or by intelligence agencies.
• This report also acknowledges that allegations have
been raised that the United States has transferred
individuals to third countries where they have been
tortured.
o The report reiterates the policy that has been

4

UNCLASSIFIED
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UNCLASSIFIED

"

repeatedly reaffiJ:med at the highest levels of the U.S.
government: the United. States does not transfer persons

to countries where the United States believes it is more
likely thaD not, that they will be tortured.

XF ASKED:

Substance of the report:
• Much of the report is focused on the implemenbltion of
the CAT in the criminal justice setting.
o For example, it provides examples of Department. of
Justice prosecutions of abuses by law enforcement.
officers since 1999.
o It. also describes new legislat.ion that Congress
has passed since 1999 that expands the abilit.y of
t.he United St.ates to prosecute acts of tort.ure as
well as other serious abuses that fall short of
torture .
•

The report. also describes how'aliens in immigration
proceedings are granted protection when it is

\~ore

likely than not" that they would face t.orture in their
country of removal, and how this same standard is
applied in extradit.ion cases as well.
•

I t also describes the generous support. provided by the

UNCL~SSIFIED
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-..'

United States to victims of torture or other
mistreatment, through assistance to groups working on
these issues both domestically and overseas.
Reporting process:

Q.
Isn't i t t~ue that the United States is many years
behind schedule in submitting its report? Doesn't that
send a negative signal about the seriousness of its
commitment to preventing torture?

A:
•

Yes, the U.S. was behind sohedule, but this is
not unusual among states Parties.

•

The united States is strongly committed to
preventing torture.

The United States condemns

the use of torture wherever i t occurs.

If needed:
•

The drafting of a comprehensive report on u.s.
implementation of a treaty with the broad scope of
the CAT is a complex and

ambi~ious

undertaking,

which involves contributions by and coordination
among many departments within the
•

u.s.

government.

Because of the scope of these undertakings, many countries
in addition to the United states have found it difficult
to submit their treaty reports on time.

6

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•

With respec't 'to na'tional repor'ts on implemen'tation of the
CAT, 93 coun'tries are curren'tly overdue in mee'ting
'their repor'ting requirements, including coun'tries
such as Aus'tralia, Brazil, Chile, China, Cos'ta Rica,
El Salvador, Germany, Ireland, Japan, Liech'tens'tein,
New Zealand, Por'tugal, Sou'th Africa, Spain and
Sweden.

'Nhat happens now tha't the Unit:ed S'ta'tes has filed i't8
CAT repor't?

Q.

A:

•

The Committee invi'tes Sta'tes Par'ties 'to presen't 'their
repor'ts 'to 'the Ccmmit'tee in oral -session in Geneva.

•

The United S'tates', for example, appeared before the
Committee in May of 2000 to explain its Oc'tOber, 1999
Ini'tial Report.

•

The Department of st:ate anticipates tha't 'the Ca1mi'ttee will

schedule such a session on the tJ. S. report in one of its
future sessions.

When does the United States plan 'to submit its long overdue
report on its mplemen'tation of t:he International Covenan't on

Q:

Civil and Political Rights?

A:

UNCLASSIFIED
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UNCLASSIFIED

•

Now that the t1ni.ted States has caupleted its report on the
Convention Against Torture, it is further intensifying its
efforts to complete work on its periodio update report on the
Int:ernat::ional Covenant on Civil and Political tights.

• we anticipate that

we wil.l sul:ai.t that report in the next

few months.

Treatment of Terrorist Detainees

Does t.he U. S. Report discuss the treatment of U. S~.
detainees overseas captured during operations against
the Taliban, al-Qaida and their affiliates and
supporters or treatment of detainees in Iraq?

Q.

A:
Yes. The O.S. report contains a lengthy Annex describing
the treatment of detainees under the control. of the O.S.
Armed Forces in Afghanistan, Guantanamo, and Iraq.

Q:
What does the Report or its annex say about treatment
of U.S. detainees In- Iraq, Afghanistan and Guantanamo?

A:
•

The Annex to the Report describes the background to
the war against the Taliban, al-Qaida, and their
affil.iates and supporters.

It describes the status

UNCL~SSIFIED
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of the detainees held by U.S. Armed Forces, the
combatant. status review t.ribunals, how the U.S.
assesses detainees for release and/or t.ransfer,
military coamissions, and the U.S. court
proceedinqs that are underway.

I t also addresses

qenerally the issue of t.reatment of detainees and
summarizes the numerous USG reviews and report.s
that have been released to date addressinq 000
treatment.
I

,

I

I

•

~he

Annex to the Report. not.es that none of the

detailed

exam~nat~ons

and reports addressing 000

operations have found a qovernment.al policy that
promoted, encouraged, or directed the abuses that

,

took place at Abu Ghraib or elsewhere.

! t.

,f

I;

•

The report and its annexes underscore that the
United States takes all allegations of abuse
seriously and invest.igates them.

r
I
f

i

'I

are found to have
accountable and
warrant.

comm~tted

discipl~ned

Invest~qations

Those people who

unlawful acts are held
as the circumstances

are thorough and have high

priority.

Q: Does the Report address the CIA's treatment of
detainees?

9

UNCLASSIFIED
FP0908

UNCLASSIFIED

A:
• The

repor~

Sta~es

notes

tha~

Government are

all components of the
obliga~edt~

Uni~ecl

aot in compliance

with the law, including all United States
oonstitu~ional, s~a~u~ory

relating

~o

~reatment

or

and

~reaty

obligations

torture and oruel, inhuman or degrading
punishmen~.

• The U. S. GoverlUllent does not permi. t, tolerate , or
condone torture, or other unlawful treatment of
detainees by its personnel or employees under any
cireums~ances.

U.S. laws

prohibi~ing

such practices

apply when United States government personnel or
contractors are operating in the United States and in
other parts of the world, although different U.S. laws
may apply depending upon the circumstances .
• Allegations regarding the military are discussed in
Annex 1.

Allegations regarding intelligence activities

are currently under review by the Inspector General of
the CIA.

That office has reported and will continue to

report its findings to the Director of the Central
Intelligence Agency and the Congressional Intel11gence
Oversight Committees and will continue to forward
substantiated eases of abuse to the Department of
Justice for investigation and prosecution.

UNCLA§SIFIED
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UNCLASSIFIED

If Pressed on CIA practices (including specific cases, soaalled ~ghost detainees," alleged CIA detention faailities)

• We do not comment on intelligence aotivities. The report
speaks for itself.
Rsndit:ions/Removals to countries despite fears of torture

Does the report address renditions of persons to
oountries in which they face torture?

Q:

A:
•

The

report acknowledges that allegations have been raised

that the United States bas transferred individuals to third
countries where 1:hey have been t:Ortured.
•

'.the report reiterates the po1icy that has been repeatedly

reaffirmed at the highest 1evels of the

I,

l

U.s. government: the

tfnit:ed. States does not. transfer persons to countries where

f

,i
i

the onit:ed States believes it is "DIOre likely than not" that:
they wi1l be

tortured.

If pressed on whether this policy app1ies to t.he CIA

11

UNCLASSIFIED
---------FP0910

UNCLASSIFIED

This policy applies to all components of the United States
government.

If pressed on specific alleqations of CIA renditions

• The policy not to return people to countries in which
the United States believes it is Jnore likely than not
that the person would be tortured applies to all
components of the United States government.
•

In keeping with longstanding practice, we do not comment
on intelligence activities.

If pressed about diplomatic assurances

Q:
Does the report address the legality of diplomatic
assurances? How is it possible for the O.S. to trust the word
of governments that are known human rights violators?

A:
•

The report restates the policy that has been repeatedly

reaffi%Died at the highest levels of the U.S. government: the
Un±.ted States does not transfer persons to countries where the
UrUted States believes it is "more likely than not" that they

will be tortured.

12

UNCLASSIFIED
FP0911

UNCLASSIFIED

...

•

The United states obtains assurances, as appropriate, fran the

foreign government to which a detainee is transferred tha't i't
will no't 'torture the individual. being transferred.
• If assurances were no't considered sufficient when balanced
agains't treatment concez:ns, the

o.s. would not transfer

the

person to the control of tha't goveJ:1'1lllen't unless the concerns
were sa'tisfac'torily resolved.

If pressed on specific in'terroqa'tion

techni~es

Q:
Does 'the repor't address alleged in'terroga'tion 'techniques
such as wa'ter-boarding, etc.? Are such techniques
permissible under the CAT?

A:

The report does no't address specific interroga'tion

'techniques.

The report reitera'tes that 'the O. S. is commi't'ted

'to complying with all United S'ta'tes cons'ti'tu'tional,
s'tatutory, and 'trea'ty obligations rela'tinq 'to 'torture and
cruel, inhuman, and degrading treatmen't or punishment and
that i't does not permi't, 'tolera'te, or condone 'tor'ture or
other unlawful treatment by its personnel or employees under
any circumstances, regardless of whether the abuse occurred
within the Oni'ted States or overseas.

If asked about specific cases

UNCL~~SIFIED
FP0912

I
I

I

UNCLASSIFIED

.,

Q:

Does the report address the case of [specific case]?

A:
We will need to get back to you on that.

As always, we will

not be in a position to comment on cases that are the subject
of pending litigation.

14

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FP0913

..

·"

UNCLASSIFIED

..

L Press Guidance, 4/20/05 Draftee!: L/8RR:RKBa:r:ris/NScb:u 4/18/05
x74262

SBtJ It

11095

Clea~ed:

L:JBellinger
L: SWitten (0. k.)
L/PM:ADeeks (o.k.)
L/CID:KGorove (o.k.)
L/EUR:DTerrill (o.k.)
DRL/MLA:CCamponovo/LSioade (o.k.)
DRL:GBiqler (o.k.)
DlU.:MKozak (o.k.)
IO/SRA: WLuoas (o.k.)
H: DPetchell (o.k.)
S/WCI: ERichard (0. k. )
S/P:WInboden (o.k.)
0: RWall~ (o.k.)
G: Tmittnacht (o.k.)
P: JDeHart (o.k.)
NSC : SHo kinson
CIA:
DBS: ~~~~~CI!g~_--.
DOD:
DOD:

B3
B6

DOJ: l-:=:r-r-....--...---.......--..--r--------I

15

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UNCLASSIFIED
Chambers, Anna L

RELEASED IN PART
B6, B5

From:

DePirro, Velia M
Monday, December 19,2005 12:31 PM
Levin, Jan; Williams, Kendi
FW: Dels to defend US reports to human rights/torture treaty bodies

Sent:
To:
SUbject:

Jan/Kendi:
FYI State's planning for the May and July defenses of U.S. submissions.
Velia De Pirro
Political Counselor
U.S. Mission Geneva

(41) 22-749-4111
---Onginal Message----From:
Harris, Robert K
Sent:
Wednesday, December 14, 2005 11:39 PM
To:
Kovar, Jeffrey 0; DePirro, Velia M; Cassel, Lynn l
Cc:
Witten, Samuel M' Bellin er, John B(Lega1); Frechette, Alicia A; Legal-L-HRR; Dorosln, Joshua L; Dolan, JoAnn; Andre Surena Final
(amsuren
Subject:
RE: Dels t~o"""e=en:c::r;-u""""'re::-:!ports to human rights/torture treaty bodies

B6

LEGAl-#lS1SD-viFundlng_focde•..

I

Sam and John,
Mark Lagon's e-mail is very good news, as 10 approved the request we wrote for $50,000 to fund the L core team (plus
Mark Lagon) for our CAT and ICCPR report hearings. Jeff Kovar tells me that we may need to find money for additional
expenditures, such as a bus to carry the delegation, a car for John and Barry etc. (Mark warned me that 10 would get
"sticker shock" if I asked for more money than I did.) DRL and other bureaus at State will pay their own way to the
hearings.
Jeff Kovar earHer today sent me the questions from the Committee Against Torture, which 1have not had a chance to yet
to read {there are 14 pages of them!}. I am attaching them to this message so that UHRR, L/PM and Andre can look at
them. I do not want to circulate these more widely until we've had a chance to see what we think about them and how we
would like to task the answers.

14 December 2005
- Unedited ve..•

I will keep this group apprIsed of events related to these hearings as they unfold.

Bob
From:

Sent:
To:
Cc:
Subject:

Lagon, Mark P
Wednesday, December 14, 2005 12:53 PM
Harris, Robert K
Witten, Samuel M; Bellinger, John B(Legal)
FW: Dels to defend US reports to human rights/torture treaty bodies

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUL 2009 200706444

1

UNCLASSIFIED
FP0915

UNCLASSIFIED
./ .As your requested, Bob, here is the memo 10 considered (with about three non-substantive words
tweaked, as I told you). At my urging to Kristen and Philo, 10 will provide the entire amount
requested. IO/OIC has found money to support (despite it not being a usual"conference")
--·-Original Message--From:
Lagon, Mark P
Sent:
Thursday, December 08,20059:57 AMTo:
Dibble, Philo Lj TIernan, Thomas Jj Williams, Penelope A
Subject:
Dels to defend US reports to human rights/torture treaty bodies

B5

Many thanks
----'Original Message·····
From:
HarriS, Robert K
sent:
Wednesday, December 07, 2005 5:26 PM
To:
Lagon, Mark P

Subject:

« File: LEGAL-#18180-v1-Funding_for_defnse....oUreatY-reports.doc »

2

UNCLASSIFIED
FP0916

UNCLASSIFIED
From: DePirro, VeliaM
RELEASED
Sent: Thursday, December 01,2005 10:42 AM
B5
To: Williams, KendI
Subject: FW: Rapid Response 11-30: Euros waiting for answers on prisons

Page lof2

IN PART

Gt: ,q
.l...J

Kendi:
Let's create a press gUidance file where we can put all this stuff for when we need it - like to write statements.
etc. thanks

Velia De Pirro
Political Counselor
U.S. Mission Geneva
(41) 22-749-4111

-----Original Message----From: Robinson, Brooks A
Sent: Wednesday, November 30,20052:48 PM
To: Moley, Kevin E; Cassel, Lynn Lj LUbetkin, Wendy C; Ashley, Chuck; Barton, Paula J; Birdsall, PaulO;
campbell, Piper j Carle, Lisa M; Cassidy, Joseph P; Chamberlin, John W; DePirro, Velia M; Eshelman, Stephanie
K; Hohman, David E; Kehoe, Melissa J; Kovar, Jeffrey OJ Kruglikova, Kira Gj Kyloh, Nance Mj lee, Donna lj
LeVin, Jan; Peay, Michael T; Perkins, Katherine Kj Rose, Erwin OJ Siekert, Magda S
SUbject: FW: Rapid Response 11-30: Euros waiting for answers on prisons

B5

HOT ISSUES

•

Euros Waiting For Answers on Prisons: Washington's "refusal to confirm or
0
deny" allegations of secret CIA prisons
dominates Europe's media. Spain's El
Pais and ABC run Secretary Rice's
"promise" to "explain the truth" as their
top international stories. A Russian daily
observes: "The torture scandaL.has
seriously damaged U.S.-EU relations and
caused mistrust inside Europe. II The
Secretaris upcoming trip is seen as a
"visit of reconciliation."

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
CLASSIFICATION: UNCLASSIFIED

.

DA1fib~!tefuY3ttt1tMs2£fl8 s?t!WiW~~mbersal\Loc~ls~rnet Files\Cont... 1123/2009
FP0917

UNCLASSIFIED

Page 20f2

B5

file:IIC;\Docwnents and

Settings\chambersal\Lo~W~.JBJ#~emet

Files\Cont... 1123/2009

FP0918

"-'
,,"

From:
Sent:
To:
Cc:
Subject:

RELEASED IN PART
GE\?>
B5, B6

UNCLASSIFIED

Brancato, Gilda M (L-HRR)
Tuesday, January 25,20057:19 PM
Brancato, Gilda M (L-HRR); Jacobson, Linda (SBU); Manning, Denise (SBU); Brooks, Waldo
W (L-PM); Dorosin. Joshua L (L-PM); Johnson. Thomas A; Camponovo, Christopher N (DRL);
Sicade, Lynn M (DRL)
.
Witten, Samuel M (L); Harris, Robert K (L-HRR); Barton, Paula J; Danies, Joel 0; Lucas,
William E; Peay, Michael T; Butler, Michael A (DAL)
RE: FOR COMMENTlenlorced disappearances· new proposals

This is a follow-up to my email below and is a LAST CALL fo~ any comments on the new
proposals. please. by 3 pm today, as I am in NYC for the remainder of the week for the
disabilities treaty negotiations, Disappearances negotiations in Geneva start Monday.
Thank you all, Gilda
-----original Message----From: Brancato, Gilda M (L-HRR)
Sent: TuesdaY, January 18. 2005.10:18 AM
To: Jacobson, Linda (SEU); Manning, Denise (SBU); Brooks, Waldo W
(L-PM); Dorosin. Joshua-L (L-PM); Johnson, Thomas A; Camponovo,
Christopher N (DRL}: sicade, Lynn M (DRL}
Cc: Witten, Samuel M (L); Harris, Robert K (L-HRR); Barton, Paula J;
Danies, Joel D
subject: FW: FOR COMMENT/enforced disappearances - new proposals

B5

-----Original Message----From: Danies, Joel D(Geneva}
Sent: Tuesday, January 18, 2005 4:31 AM
To: Brancato, Gilda M (L-HRR); Barton, Paula J; Peay, Michael T
Cc: Lucas. William E; Johnson, Thomas A; Butler, Michael A (DRL);
Camponovo, Christopher N (DRL); Harris, Robert K (L-HRR); Mehra, Basha;
Schechter Torres, Julie L (DRL)
Subject: FW: enforced disappearances - consultations on 19 and 24
January
Gilda,
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIIJE M BOLSTER.
DATE/CASE ID: 06 AUG 2009 200706444

,.

UNCLASSIFIED
FP0919

B5

"

;~:;~o~riginal Messa~e~----

B6

[mailto
_
Sent: 1 I-~J""a::-:n::-:u;;-a~r::::y~--:2170~5:--'I"1'1::5"::--:2n:5~--------To: Cahalane Brian GENEVA PMUN; jl

I

I

obemso~"':--"'L------nr---""''-------''''

'L
1'-----'------

II

Subject: enforced disappearances - consultations on 19 and 24 January
Dear regional coordinators.
I would be very thankful if you could forward the following information
to the members of your group.
HE Mr Kessedjian has send a letter in December to all delegations
inviting them to·new informal consultations at the French mission.
- on 19 January. at 3 PM. we will discuss articles 10 to 15bis. 19 and
20

- on 24 January. at 9 AM. we will discuss articles 16. 16bis. 17. 18 and
22
- on 24 January. at 14 PM. we will discuss parts II and III.
For these discussions. we will use the attached documents :
the chairs draft. that was used as a basis for the October session
- a simplified Part II. dated 1 December 04
- a preliminary compilation dated 2 December 04. This document is an
attempt at combining a number of proposals. It does not include all the
articles. nor does it reflect all the proposals made by delegations.
During our dicussions, we will try to identify compromise formulas.
These formulas will then be presented during our official session. from·
31 Januray to 11 February.
I would be very grateful to colleagues who wish to attend these
discussions if they could let the French mission know in advance (022
758 91 42

I.

orl

B6

Many thanks
cc

«drafteng.doc»
***************************************************************w******

This email and any files transmitted with it are confidential and
intended solely for the use of the individual or entity to whom they
are addressed. If you have received this email in error please notify
the system manager.
This footnote also confirms that this email message has been swept by
2

,·UNCLASSIFIED
FP0920

UNCLASSIFIED

MIMEsweeper for the presence of computer Vlruses.
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.

*~***~*****************************************.**~*** *****************

3

UNCLASSIFIEb
FP0921

UNCLASSIFIED
SECRET

RELEASED IN PARI
Comments oftbe United States of AmB~a
<:1£ l '6

on tbe Draft Report of the Working Group on the elaboration of a
draft JegalJy binding instrumen~ on protection from
Enforced Disappearances

We have reviewed the draft Forced Disappearances Report covering the third session of
negotiations held from October 4-8, 2004 and the fourth session held from January 31February 11, 2005. The fonowing are our comments on this draft:
CRlTICAL COMMENTS:

Article 9: The Chair and the Secretariat staff promised the US delegation during
negotiations that the fmal Report would ~tate clearly that one deJegation continued to
oppose the inclusion of Article 9(2) on "fQund in" (quasi-universal) jurisdiction. The
draft Report doe~ 'not state tpis.· 'Please enstp'e'that the, fmal jteport expressly inciudes
ql~ntion .Qfthis
opposition'
of one 'delegation',t6Article
.
.
. .
. ' 9(2).
.
Article 5: 'The R~p'o~ sho~ld reflect th~t ,at least one 4el~gati01:~::belie~lis th;1t then~ should
not be an operative provision in.the instrUment text.Qn crimes'aga~nst humanity.
.

,

' .

Proc~ss: The 'fmallteport sho41d includ~:refer~n9,n~th~ stj;\tu~ of the ri~gcitiations at the

me

following:,
,'.
conclusion of the FOl.iiUi s~ssiop; in'..partic~l!U'
(1) the ~ha1rt~ ,stat~ilJ.imt Qp·,tli~' final, d~y o(t~~ FOYfth ~~SSiOIi ;tI;lat' se,~e~~l aSp~cts 6fthe
treaty text reiri~in subject to !jve1y deD~te~ithin the Worldrig Otbilp,:inClu9ing'(a) state
action, (b) the 'whole ofPi,ut II, ArtiCle :i:jI- Dbis on "respo~~sihility fo~ i,nternatiorial ,
relations", and (c) the 'format ~d structl,lte, the itlstrurrient,;(i.-e:-:""tJ'i'hethie:MHs..a:n: '
~ri~1 jirbtoc,,) ~rcon"eiitioii;.inii wiieihe' it Will use iin ~isting or11ew fre3(y
.
oilitoring,oody); and'"
,
"
, "
',,',
.. ' ' ,
,
•
hile mapy states
to liPpla\1d
,6,f
,his, tea:ql,
_St~te~ aa~e~"o~ the la~t ~~y'of~¥'J~uftii's'essio~_that ~h~ tex~ 6t!~e)n.~t~,e~!:~¥.s pot
ye~,matUre,. tfi¥it-ccinsei'is}1s'-w~s 'desirable 'and not reached, aild:that the ~lst CHKshould
c:;
authorize additi,orial treaty'n'egotiations."

or

iilte,fVe;n~d,

th~ sk~li, th:e\¢~ajt ~d

~evenil

B5
B5

Additional cOmlnents:
,

Arti'c~e"l Q: 'Pa!agraph 16 in the Report '~der Artic'l~~l9':Sli~ti.id.f.~~~Ci :~n~t at le,~st ,one
delegatioii urideiscor~d that Articl~ 19, a~ well as sjrililat cnmin~liiati6n' provisions,

-should contain an express requirement ~fintention.ality or"kho~l~dge"

Article 22: Paragraph 11 in, the Report under Article 22 ,inacc*~ie,ly indicates that the
,
proposed Principles and Guidelines' on Right to a Remedy contain'i'opligatoty"
provisions, ~ather, these Principles by their tenns (and exp~essly st~teq therein) are nonbinding.. 'T~us ~e sec9Pd sentence it:! paragraph 11 u'rjder Article' 22 should be' C9~¥ct¢d
to:read.~;f~ll~ws: "Other ~ds o~r,eparation were just as i~portaht to viCtims' families,
arid shoulci;~herefore be'treated~oh a,par with corripensa~o'n in 'keeping'wj~h ,th~ Principles
and Guidelines oil Right to a'Remedy c~riently being~worked'on at the ynitecfNations.'i

I

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED

I:. ~:~E~CASE ID, 23 7'~~~9 ,,200~;~4~,\",.,~,),'"'~lf~;'!I"'.~:i~<',,;;~'
.. ~ " :. '~'.': ";.", ::'b;:t ':" ...'.: •. :'.~."?"" .~J~"j.:·.~.:'~"~:·~!\ . .;6:e~'l;~;jt, J:~"'.~:j.~-'::~:'f.;':'~~1~~·;'-~·¥;h~:;""J.::j:(j;~:~(.(r.(~~·~O'·~·e-r~lS~'lrrtt;)j

,'::\{t"l~i,~l{-·...rtt:;, ~l :~·.r.l:t

..,. .

FP0922

FW: Enforced Disappearances: report

RELEASED IN PART
B6, B1, l.4(B), l.4(D), B5

Barton, Paula J
From:

Page 1 00

UNCLASSIFIED

Barrios, Stacy M

Sant:

Tuesday. February 22, 2005 7:24 PM
To:
Brancato. Gilda M; Barton. Paula J: Peay. Michael T
Cc~
Panles, Joel 0
SubJKt: FW: Enforced Olsappearances: report
Bob shared the UK's comments below....

Stacy M. Barrios
Human Rights Officer

u.s. Mission to UN Organizations
Geneva, Switzerland

4J-22-749-421 4
41·~~·749·4717 (fax)
BarriosSM~state.gop)

B6
B6
Dear all
In'case y6'u're Interested. be,ow are our

commentS·on the·report.

best wishes
Bob

! •

,

-origlna' Message-:FrOm: BOb rAil.Geneva lConf
sent: 22 FeIlNaty 200511:32
To: 1
....
SU~Jec:t:

...J

FW: Enfoiced Ollappea~ce.: report

B6
;

.

"

Thanks Jililan
we didn't receive the report or hear about the deadline. I've just sent hi our Comments..
Sob

--eng,,,.,' Message-. From: ~b Last G~n8va -Conf

sent: 22·F.bnJ8ry20~11;30
. To:

I

I-

UN[TEDSTATESDEPARTMENTOFSTATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE m: 14 AUG 2009 200706444

B6

2/23/Z()OS .

.

.

_.-._--_.- ...... _._._---_._._" ..FP0923

FW: Enforced Disappearances: report

Cc:

1'---

SUbJect:

UNCLASSIFIED

_
Enfo«:8d OIlap~nca.: report

Page 2

on

SECRET

B6

Carmen
I hope this \$ not too late. Here are'the UK's comments on the report.
best wishes

Bob
WG.22/CRP2

Bl

BOD last
Humen Rlgllfs Attache
Human Rights Section

, 2/23/2005, '

FP0924

FW: Enforced Disappearances: report

UNCLASSIFIED

Page 3 of3

SECRET

BS

B6
www!fco.gov.uklukmls~

,.

FP0925

UNCLASSIFIED

-,

SECRET

RELEASED IN PART
PRELIMINARY COMPILATION OF PROPOSALS - 02/12~5

CE 2..2-

Preamble
The States Parties to [this instrument],

Considering the obligations of States under the Charter of the United Nations to
promote universal respect for, and observance of,. human rights and fundamental
freedoms,

Having regard to the Universal Declaration of Human Rights,
Recalling the Declaration on the Protection of All Persons from Enforced Disappearance

adopted by the General Assembly of the United Nations in its resolution 47/133 of 18
December 1992,

Recalling all other relevant inSirunle~ts,
Aware of th~ extreme 'ser-iousn'e~s

o{brif(irced'disap~ai:anc~';
which.c~nstitUtes a, crime
and.
.
. ,
.

in certain circu'mstances.,a:cti~e:.,aga!n~t:~urii~iljty~ .. , ",'

.

: ' ,.

~

.

.'

De.ter~ine~ to preye~t :~rir6rC~.j., dj~~p'p.e~rari~es and" 'co~bat impu~jiy' f<,Jr the ~rime
\

-

...

enforced disappearance,
Affirming the rigl1t of any

of

"

p~rson ~ot
to 'be subjected '~o an:enrotc~d?disapp.-~ar(l~ceand
.,
'!.
,
. '

the right of victims to kn6w $~ truth 'abqut the dr6tim~tances

of. an' e!1forceCl dlsappearan,ce

and the fate of the disappeared person,

Have a:gre~d as follows:

.

',,;

UNITED STATES DEPARTMENT OF STATE
"--'REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 23 JUL 2009 200706444

.,-:.
",

FP0926

-.'

UNCLASSIFIED

.
/

Article 1

1<---_ _

!
/
For the 'purpos s· of [this.

D

SECRET

~nstr:umentj~~k.fTifo~~.~d;:'·di~~ppearance is cons~dered

B5

to be the

6ej~~iflfl::fl~r-peflilefl++H3.M;r;".ffi..-w1,llat.,~,.*""fet:ffi;, arrest, detention, abdu~tion

f

any

othe~ eprlVa~ion o~ liberifoll1Il1itt~d'by ,agents of.' the a ~t~te or ~Y persons or groups of
persons acting with the a,uthorization, support or acquiescence of the a State, followed by a
. .
.
.- ,
,

~..

refusal to acknowledge the deprivation of liberty or by .concealment of the fate or
whereabouts of the disappeared person, wllieh places sach a pefson and where such person

.1

Is placed outside Ibe protectiou of the law.
OR

•

B5

---------

For the purpose of [this instrument], enforced disappearance is considered to be the
.

.

;

placement of a person outside the ~rotection ~f·the l~w as a consequence of both hls/her
deprivation of liberty, including arrest,

detent~on or

abduction, committed by agents of

a State or by persons or groups of persons acting w.th the

au~horization, support

or

acquiescence of a State, and the refusal to acknowledge the deprivation of liberty or the
concealment of the fate or whereabouts of the disappeared person.

...

\ , .-'

2

FP0927

~SSIFIED

B5

~

Article 3

I

---------

1. Each State Party shall take the

B5

~ssa;~
to pFOseoate afte pHf!ish hold
...- ,--~-_

criminally responsible those ·.....RO

SECRET

a) those who attempt to commit and

.....

h

I.

5
.
r
are accomplices or participate inleoe6imffiflm'i'il+:t=€oifr------t(\\

assist itt tfte eOffl'l'ffisslaJt ef an enforced disappearance.
1.

The foIJo·.vittg shall be paRished:
(a)

'The perpetrators of IlfI eaforced disappearllflce and those who are accessories to

(8)

Attempted eRforoea dlsappeamAce;,

(0)

Conspirawy to eelHlftit aft eafereed aiSappea:raACe.

*,
2.

ell) Those .who qRi~ 'or cimiollrlige' ~I! .~e~jfli6sie~:, ef' kteM~teEl ee!ful1i/j9i$~' of
sHeh an offeR~e; aHd :the~'e v;h~·fEteiiit~e itil'.e~~i!\i,!lSi~l\' or ~m~tej:"·e6mmlssjon by' aidiHg,
abetting or otherwise 'li1!lsisliflg iR

it. iacl-ading .by f:lro,.ri~ing.tJ:i~

Jj1eaos for'its oolftR'lissiOR OF

.------'attempted eomfnissiofl:;

B5

l>

(b) The superior

•

(i) Knew, or consciously disregarded inform~tion .which Clearly Indicated, that

~.

offic~r who~

,. .

subordinates under 'hisiher eff~ctjve auth'oriiy and· control· were committi~g Of aboQt to .
comrilit an-enforced disappearance and;
•

(ii~ to take all necessary and reasonable measures wit~in. his or Qer' power to

'~~f'<~~e

e.hforced

disap~.~~nce o~,t~ .~ep~ess 'it~L~o~~is~jeft ~ t~

sUbmit-the'Jllatte~ to'the competent authorities for'investigation.and piosecilt,~n:
2. An order from Ii superior

offi'cer

or a' public 'authonty 'may

nqt

be iI:ivoJced as a

justification:for enforced qisappeara~c.e,

4

. ... ':.
,

'

FP0928

UNCLASSIFIED
SECRET
Article 4
1.

• .r" :,

Each State party shall make the

"

~ffence

.,:...... '

of enforced disappearance punishable by

appropriate penalties which take into account its extreme seriousness.
2.

Each State Party may establish:
(a)

Mitigating circumstances, inter alia for persons who, having been implicated in

the commission of an enforced disappearance, effectively contribute to bringing

th~

disappeared person forward alive or make it possible to clarify cases of enforced
disappearance or to identify the perpetrators of an enforced disappeara~ce;
(b)

Aggravating circumstances, inter alia in .the eventof the death of the :victim or

the commission of ~n enforced disappearance in respect of pregnant women, minors or other

particularly vulnerable persons.

......

..,/

5

FP0929

UNCLASSIFIED
SECRET
Article 5
Without prejudice to article 2 bis,
1.

A State Party which applies a statute of limitations in respect of enforced

disappearance shall take the necessary measures to ensure that the term of limitation for
B5

criminal proceedings:
(a)

Is ~~,"*~of a long duration and roportionate to the extreme seriousness

of this offence;
(b)

Commences from the. moment when the offence of enforced disappearance

cease an the fate of the disappeared person is established.
B5

~rm Qf ~imi'tationJoI' .cri~iqa~:,p.r~cee~lipgs .wh~cb i~ :piovided for in paragraph 1
shall be suspended fbi".as ~o~g :~$ ~~ :~tf~tj:~~:refn~d~ i~' a~ail~ble 'i~' fr.th~ State Party tfHmj'2.

The

YieHm in ca~e

9f ari.enlorced·~is~PP'eiraric~.·

..',

'.'

....

.

. .

.

_..
6

FP0930

UNCLASSIFIED
SECRET
Article 9
].

Each State Party shall take such measures as may be necessary to establish its

jurisdiction over the offence of enforced disappearance:
a) When the offence is committed in any territory under its jurisdiction or on a ship flying its
flag or on an aircraft registered in accordance with its legislation at the time of the events;
b) When the alleged offender is one of its nationals or a stateless person usually resident in

its territory;
c) When the alleged offender is a stateless person usually resident in its territory and
the State Party conSiders it aJ,lpropriate;
d) When the disappeared person is one of its nationals aa:thtfle, State Party 60Asiaers it
appropriate.

2.

Each State 'Party shall'likewise ~e s~cJ1m~as~res as,maY·be nece~sary to

jurisdiction over th~,<iffe,iice

establi~h its

of e~forced dis\lppeanmce when the' alleged offender is present

in any terri~ory under its jurisdiction, unless it extradites or :tran~feis him' or her in

accorda~ce withJt~ ln~e~n~ti9~~i'.~bl!g~ti,~#.s,.ib·~n9,ther' S~te ~i,ttai~sfeis h'im' or her t~ an
international criminal
3.

[This

~riburi~l '~h~,;~jQrisdic,~icih'~t·ha~Jec<?gni?:e.d. '

i~s~m~nt] ~~es,no~.e~c1ud~' a~Y~~d~uii&~ar~~i~irial'jU;;~di'~~i~n

:ex;rcised 'in

accordance with,ffitemal,n~tiomillaw.

',.~ .....'

7

FP0931

UNCLASSIFIED
SECRET
Article 10
I.

Upon being satisfied, after an examination of information available to it, that the

circumstances so warrant, any State Party in whose territory a person alleged to have
committed an offence of enforced disappearance is present shall take him or her into custody
or take other legal measures to ensure his or her presence. The custody and other legal
measures shall be as provided for in the law of that State Pftft;'- but may be continued only for
such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2.

A State Party which has taken the measures referred to in paragraph I shall

immediately carry out an inyestiga?on to

es!a~lish th~

,

which may hfl'>'e jurisaietioa ia aeeereQliee
measures

facts. It shall notify the States Parties

'

wi~

referred to in article 9, paragraph I, of the

it has taken
in.pursuance of paragraph' 1 of this artiCle, incl~ding detention and the
.
,

circumstances warranting detention;

and the findings ,of its investjgation. indicating whether it

intends to exerci~e its jurisdicti?n.
3. Any person in c~stopy :P!1rS~li.nt ~o ,paragraph 1

shall

be' ass(sted .!~ communicating

immediately' with the nearest uPI;ro~rlatere~reient·atlv~.o(~he$t~~~'of which he or she is
.

a national, or, if he or she is a stateless

'-'

'

person, with the rep:resentative of the State where

he or she usually resides

8

FP0932

UNCLASSIFIED
SECREl
Article 11
1.

The State Party in the territory under whose jurisdiction a person alleged to have

committed an enforced disappearance is found shall, if it does not extradite that person or
transfer him or her in accordance with its international obligations to another State or
transfer him or her to an international criminal tribunal whose jurisdiction it has recognized,
submit the case to its competent authorities for the purpose of prosecution.
2.

These authorities shall take their decision in the same manner as in the case of any

ordinary offence of a serious nature under the law of that State Party. In the cases referred to
in article 9, paragraph 2, the standards of evidence required for prosecution. and conviction
shall in no way be less stringent than those which apply in the cases referred to in article 9,
paragraph 1.
3.

Any person regarding wh:oni· p~oceedings a~e .~rought in connection with an enforced

disappearance shall be ~ entitled' to a fair ~nd 'p'ublic ·hearing

ails ~~~,,~·ijtll;:·.e;5·~~·li~he~·I3Y
die gHltF8:Htees of a fllii"k.i&t.ttibUn:afeSiabii~hed··~Yja~. ..'
.

independent

4.
~

..... ~ ..'

and impait.iatoo~it Whie~

Any persQI1,

by a competent,

law .~Ei which l'e9f!leets

reg~r.Ciil)~': Wh~ni:'Pto~ee~ing~: ~r~'~;~~ght .il?·~~?nneC90!l. ~t~~ 'an 'enforc~d

disappearance shall·be gU'arailteed fair "treatment at all ~~ages oftl:Je 'proceedings

9

FP0933

UNCLASSIFIED

SECRET

Article 12

I.

Each State Party shall ensure that any individual who alleges that a person has been

subjected to enforced disappearance has the right to report the facts to a competent authority,
which shall immediately undertake a thorough and impartial investigation. Appropriate steps
shall be taken, where necessary, to ensure that the complainant, witnesses. relatives of the
disappeared person and their defense counsel, as well as persons participating in the
investigation, are protected against all ill-treatment or intimidation as a consequence of the
complaint or any evidence given.
2.

Where there are reasonable grounds for. belie~;ng t~at:a persp~ has been subject¥d to

.

.'

".

..

.-.

.

".

enforced disappearance.,'..
e~eh 'S.t!lte.·P~rt:y
sM;O' r~~
$e, t'j.jt!tt~t ~ th~.. authority .referred to
in
:
'.
.... :
.
\

~.

'.'

paragraph 1 ief.olau~ch~s

3.

ail 'irives1:ig~ti~n, e~~!1~rthere :has ·b.~n .~o (OrrlJal compl~int.

Each State~p.rt~,shall, 'ensut:e t~&t·:the~a,~th(jritY r~ferre~ lO'in' paragraph 1:
Has the n~essary pow,ers ;8nd resoiiT~~s,' to conduct"· the inv~s~igation

(a)

effectively, in~luding the,powet'-ro compel,suspeCts or 'w~tile~ses.to,?ppe~rbefoieit;
~

•

• I

• .

~

~

.! ..

'. .

...

~"

I' ",

'

• '.

.

. '

j':, . ".... .; . '.. .

.

...'

.

.

Receives tko'nas access,to"aWdocunu\iits
aIiil"other,infotmation·relevant for
.,

(b)

........

•

it needs for its investigation;
'.

.

"

Has acce~s to ~riypla~e un~er"lts.J~~lsdiCd~~,'wherb it .is suspected tha; a

(c)

disappeared person ~~Y be"'presenL
.

4.

.

,',.

Each'~St?i~ ..p~ftY· s~ail take the n~essary measur~~' ~o'~r~veilt.and puriish,~cts"l~keiy tQ

hinder the' cond:uct'

df ih~ inv~stigatio!1s.

having commi~ieQ'at)

It sliaij

~~sure~ in p'a~ticuhir that,p~rson~. ~ti~~~teq :of

erifor~ed disap;ew:anct: a:~e not ,in a,p6,shioh:~O 'infl~enc'~ ih~ pr~gress of

~he investigations by mean~', of pressure or acts of intiJiudati~n ~or reprisal aimed ,at the

complainant, witnesses,

relat~ves ~f

:

persons
5.
/
;/

with

panicipati~g in'·the

the

'disappear~d' person 'or

their

def~nse counsel;' o~

at

'

inve$tiga,tion.

The investigation provided for in' this article ~ should be conducted in ac'?otdarice

~ relevant interna1ional

gUideljiles~~ ~p~licable to '
~n~luding those .on t~rtiIre, ~nd' to the

siandards, principles' and

investigations into human rights violations,

' prevention of extra-I~gal: summary or arbitrar.Y ex~cuiioi1S, as wei) a~ to ,the search 'for
disappeared persons; and forensic examinations and identification.

' .
...............

\

.

..

'

.

.'

\,

10

FP0934

UNCLASSIFIED
SECRET
Article 13

1,

For the purposes of extradition between States Parties. the offence of enforced

disappearance shall not be regarded as a political offence or as an offence connected with a
political offence or as an offence inspired by political motives. Accordingly, a request for
extradition based on such an offence may not be refused on these grounds.
2.

The offence of enforced disappearance shall be deemed to be included as an

extraditable offence in any extradition treaty existing between States Parties before the entry
into force of [this instrument].
3.

extra~ition treaty subsequent~y to

extraditable offence in every

.

4.

as an

States Parties undertake to include the offence of enforced disappearance

If a State Party

~hich

makes extradition

be'concluded between

.

COrtdition~1

on. the existence of

receives a request for extrildjt~on from another 'State Party' with which it has

no

th~m.

a treaty

extradition

. .
"
.
treaty. it may cp~~sider. [t~is instrjJm,~ntJ ~s '~e n~e~s~ry .1e~~1 t;Ja~is'for extradition in

respect

of the o.ffence of enforced disaFpearcince..
,

5.

.

A State Parly which d~es·~~t make extrad~tion condi'tional' on:th'~' existence of a 'treaty

shall recognize the
otren.ce:" of enforced
,

dis~pp~~~ri~~,~"~~.:~ :e~tril(li~bl~'~ffen~e
;~etween
.

States Parties themselves,.
6.

Extradition shall, in all cases, be subjt:ci:to the cOhi:liti~i1~ provided for by theiaw of

extn'tdit~oil t.reaties, incl~'di#g; i~~eI' ai'ia, ctirid.itlons
in relation to the minin'lUm penaliy require~eht for ex~aditioh and the grou'nds' i.lP6n which
the requested State Par:ty or 'by applicable

the requested State Party may refuse extradition or make it subject-to

7.

Nothin~ in [this inst~merit] sha~1 be interpr,eted.·~s imp'osillg

~ertaiit conditiot~s~

an ,,?1igation ~o ~xtradite

if t~e reqtieste~
State' Party has substantial grounds for believing that the r:equest has been
' .
.
made for the purpose; of prosecuting or'pu'nishing a person' 00' account·of that person's sex,
race, religion, natiolllility.

et~nic

Qrigiri

or' political ~Pini9~~ or .ihrit· ~o;.rtPliim~6· wj~h' .the

request would' caus~ prej~~1ice to that .p~rso~'~ po·si'tiori. f6~'~~y

rin~: oj the~e.reaSOi1"~.

.

11

FP0935

UNCLASSIFIED

SECRET

Article 15 bis
.........

1.

No State Party shall expel, return ("refouler') , transfer or extradite a person to

another State where there are substantial grounds for believing that he or she would be in
danger of being subjected to enforced disappearance.

2.

For the purpose of determining whether there are such grounds, the competent

authorities shall take into account all relevant considerations, including, where applicable, the
existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of
human rights or of humanitarian law.

\.._-

12

FP0936

UNCLASSIFIED
SECRET
Article 16
I.

Each State Party shall, under its law:
a) Indicate those offieials authorities authorized to order deprivation of liberty;
b) Establish the conditions under which such orders may be given;

c) Guarantee that any person deprived of liberty shall be held solely in an officially
recognized and supervised place;
d) Guarantee that any person deprived of liberty shan be authorized to

communicate With a person of hislber choice, when such a communication is not
incompatible with the purpose of the detention;
e) Guar~tee access

by the judicial

authoriti~s

to the places where persons are depr,ived

of liberty;
f) Guarantee tha,t

4ny person"d~priv~d of H6~rty"shall! ',in IiII pircumstances, be entitled to

take proceedings·j;lefore

acourt, .'II}' ord.erttiat tJ;il,it. court i:nay' d~cide. .without
. . delay on
.

"

the lawfulness of th~ ~epl'i:,~tio~.qf l!oeriy 'and'oriier "hi~ .o~ ner rel~ase if that
deprivation Of"
iiOeity is
-,not)'~wful.
.
,
.

.

.......-..

2.

Each State Party shan compiie an.d

depri ved of liberty. The

.

'

ritalritain-orr~ ~r JP'Qre bfflciai ~~gi~te~~' of persons

infonn~ti-on contained tl~ere'in'~h~1l i~clude, as a m.i~iJ:n~~;

a) The identity of the perSon deprived 9f libei:ty;
b) The authority teet el'~el'ea'hav~ngdeeitled'the deprivation of.jiberty;
c) The autpority respoflsib,le for superoi'isihg cOlitrolling' the ~eprivation 'of I~berty;

.

'

'

d) The date and tfme-of admission to the place of-detention an9 the authority responsible

. "

,

for the place of, detention;

e) The

Stat~ of health

and,

i~

the event Of de~th,the-'cir<:umstanc'es' and
o

.

'

•

'

.

~atise 'of'

death"
f) The date and time of release or transfer to another place o{detention: the d~s~nation
and the authority responsible for the, transfer.

13
"

FP0937

B5

SECRET
Article 16 bis
1.

Each State Party shall

ara;t;;e'tb, the flersoH

deprived of lieerty ftft6 to his

OF

her

relatives, th~ir lega:l rel'lFeseata:ti¥es, 'their emiftS~ eftd any person aethorized by them, QS well

as to any person able to claim with a legitimate interest under this article ,access to at least
the following information:
(a)

B5

Cb)
(c)

Th~,au

B5
or,tty

controlling the

deprivation of libe~y ;
(d)

The,~;eabouts of the person deprived of l,iifJ mcluding in lbe event of a

transfer;
(e)

The dale and place of releas,e;' " '
:

(f)

. '

,

.

':'~~~-,~'r

, ' ,

.'

The :state of health and, in t,he'event~~!1')he ~~rCU!D~t~rices and ':.aus,e~ of
•

.•

I

.'

»

••••

cdeath, ".....,
2.
~--'

Appropriate

to in par~graph

measur~s shaIi 'be '~~keh~ wh¢re riec'~~s,ar):, t9;~ro~~t ,the persons ,referred

1, ~s W~I~ ~s per~b~s .participaii~g in',i}j~)~~~~~i~a~i6rl; :f~~ffi, ~y iilt~~~tment,
i~timici~tio!l or s;mb,tlon as a'~e~ult of t~~ seatC;h f~r i~f6;~afi~~"cb~2~fniri~'a p'etson:deprived'

,'of liber~y,
3.

In order not
to jeopardize
I

provided pursuant I to p~agraph

i

'.t~ priV'acy

0

'th-~" persons'
concer~,-ed,'
.
..

..

t

the :i~~olmatidn .
, . "

of this a~ticle must'b,e ap.P):Qpri~ie· ~~cki~ievariffQr':the.

~~ ,~. m~st' not tle: \:ieee

'i-

'J!H'!Jic;se:s' btb~/ti{tiil'

:6r:thb ~';e~rc~ fo;' the ~rson

, deprived of liberty"

....."

"

,

14

FP0938

·

UNCLASSIFIED

'.

... :.

SECRET

Article 17
Without prejudice to consideration of the lawfulness of the deprivation of a person's liberty,
States Parties shall guarantee to the relaH..res af the "ersafl 6eflrived. of liberty Of of the

disappeared person, their legal reflresentatives, their e~flsel and Bfly person l*Itheri:i!!ea by the

persafl deprived af liberty
atl)'

Of

by the dis8:flpearea flersoft or by his or fler relatives,

IlS

'Nell

IlS

to

other "ersofl able to elaim a legitimate iflterest the persons referred to in Article 16bis

1, the right to a prompt and effective remedy as a means of obtaining without delay the

information referred to in article 16 bis. This right to a remedy may not be suspended or
restricted in any circumstances.

15

FP0939

UNCLASSIFIED

SECRET

Article 19
1. Each State Party shall take the necessary measures to prevent and punish the following
conduct:

a) Delaying or obstructing the remedy referred to in article 16.1 e) and 17;
b) Failure to record the deprivation of liberty of any person, or the recording of any
information which the official responsible for the official register knows or ought to know
to be inaccurate;

2. Refusal by an offici~l to provide infQrma.ti<?D.oll the depriv~t~~n of liberty of a person, or
the provision of inaccurate information, 'even though the legal requirements for providing
such information have· been met. .
.
.

·--""-0"

.'

...

J6

FP0940

UNCLASSIFIED
SECRET
Article 22
1.

For the purposes of [this instrument], "victim" means the disappeared person and any

iReli'lidael natural person who has suffered direvt harm as a direct result of tbat person's an

enforced disappearance.

2.

Each State Party shall take the necessary measures to ensure that every victim knows

the truth regarding the circumstances of the enforced disappearance and the fate of the
disappeared person. In particular, it shall take the necessary measures to search for, locate
and release disappeared persons and, in the event of death, return their remains.
3.

Each State Party shall guarantee the right of victims of enforced disappearance to

obtain prompt, fair and adequate reparation for tJ:1e harm caused to them.

4.

The'right to obtain repar~t~on'r~feiTed to in· parag~aph

material and PsyChologiC:1

h~.

It

3.i~c]ude~ full ~omp~nsl'\tion for

ma~. also '~nclud~ oi~er· ~oO~lItles of ~~paration such

as:
a) R~stitution;

b) Rehabilitation;

c) Satisfaction;
d) Guarantee of non.rei)(~iit.~s:l;.i~.ciudjrig:resioration
6 fhoriour
and reputation
.'
.
.
5.

..

.

...

'

Without prejudice to the obligation to continue the investigation until the fate of the

disappeared person

has been clarified, each St~te Party sh;l.ll t~ke the nec~ssary measures with

regard to the legal situation of the disappeared pers6ns'whos,?' fate:has ·n~t ;been 9larified and
that of -their relatives, in

fleld~ such .as s~c~al we'fare, fin~riciai
matters: cusl~dy
~f chi1dre~ .
.
'.
'.

and 'property rights.

"

17

FP0941

UNCLASSIFIED

SECRET

Article 23
I,

Each State Party shall take the necessary measures to prevent and punish under its

criminal law:
a) The abduction or appropriation of children who are victims of enforced disappearance
disappeared • children whose father or mother is a victim of enforced disappearance
or children born during the captivity of a mother who is a victim of enforced
disappearance;
b) The falsification or destruction of documents attesting to the true identity of the
childr,en referred to 'i,n ,subparagraph (a)'.
2.

Each State Party shall take the necess~ry mel,lsures

to

search for and identify the

children referred to in paragraph 1 (a) and '(b)

-,'

,

,

......

18

FP0942

"

UNCLASSIFIED

'.

~

SECRET

Article 25
1. When a child who has been abducted or appropriated in the circumstances described in
article 23, paragraph 1 (a), is found in the territory of a State Party, the question of the
child's possible return to his or her family of origin shall be resolved either under the
national legislation of that State Party or under a bilateral or multilateral agreement
entered into by that State and by the State in which the family of origin resides.

2. In all cases, the best interests of the child shall be a primary consideration, and a child
who is capable of forming his or her own views shall have the right to express those views
freely, the views of the child being' given due weight in accordance with the age and
maturity of the child:

3. ConSidering .t~e

n~~. :t~.j)~~!~~t ,ihe"b~~fj~,(¢f~~ts

paragraph 1, there' 'sh~)i"b~' a~

.of .t~e

c~ildrfm ref~rred

~~port~il~~,: :in" siai~~ ¥ai-i~e~ ,whj~~

systeJJ;l of ~~opt.ion, for. ~:r~v~~w .of:tJ:t~i:~~9.p'd~~:~f,s~~~:c~t14~e~'.a~d,

to in

rcc!Jgnize a

'in p~rticu"a~,

annuJri.en~ ~r.,:a~ii:'afto~~ici~,,~ii!~~;',~fl~~~k~jri':':~1i~rJddisappe~r~iic~.,~Such
adoption s~ould, ~owe~~r;:~o~~~u~: to::be i~'fo~~e.if ~~~se~t',is ~i~en; at ~~e·ti~e ~f

for

revi~w, b~ ,iiie ,thild;8:ciQ~~~t'.~e~~ti:VC's. '

..

\..../

19

FP0943

lJNCLASSIFIEI)

-

RELEASED IN PART
B5

Lee, Michelle G

From:

Sent:

To:
SUbject:

Bellinger, John B(Legal)
Tuesday, May 02,20061:08 PM

Kovar, Jeffrey 0; Harris. Robert K; 'Sandra_L._Hodgkinson@nsc.eop.gov'; Waxman, Matthew
Re: CAT ~- NGO briefing Sat May 6

l - -

-----Original Message--~-From: Kovar, Jeffrey 0 <KovarJO@state.gov>
To: Harris, Robert K <HarrisRK2@state.gov>; Bellinger, John B(legal) <BellingerJB@state.gov)
Sent: Tue May 02 93:99:02 2e96
Subject: RE: CAT -- NGO briefing Sat May 6

r
B5

From: Harris, Robert K
Sent: Monday, May 91, 2096 9:95 PM
To:
Bellinger, John B(Legal); Kovar, Jeffrey D
Subject:
FW: CAT -- NGO briefing Sat May 6
Importance: High
B5

Jeff,
As you are John's control officer, you might want to contact the Mission's Press office to
make sure the scheduling works.
Bob
From: lagon, Mark P
Sent: Monday, May 01, 2006 2:43 PM
To:
Robinson, Brooks A; lubetkin, Wendy C
Cc;
Noyes, Julieta V (DRl); Denig, Paul; Wilbur, Richard M;
Subject:
RE: CAT
NGO briefing Sat May 6
Importance; High

Harris~

Robert K

B5

----> Could you make some specific suggestions for interviews (and potential times -- but I
suppose Fri afternoon might be bes~, and please copy me, Julieta and Bob Harris
UNITED STATES DEPARTMENT OF STA E
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 ruN 2009 200706444

T

lrNCLASSIFIED

U

FP0944

UNCLASSIFIED
We'll endeavor to get John to join/lead the NGO br.iefing too.
r

l

----~Orig1nal Message--~--

From: Robinson, Brooks A(Geneva)
Sent: Monday. May 01, 2006 4:02 AM
To:
Noyes. Julieta V (DRl); Lagon. Mark P
Cc:
lubetkin, Wendy (
Subject:
RE: CAT -- NGO briefing Sat May 6

We'll send out invitations to the NGO briefing saying "the US delegation" will brief.
- Brooks

. From: Noyes, Julieta V (DRl)
sent: Friday. April 28, 2006 9:21 PM
To:
Lagon, Mark P; Robinson, Brooks A
Subject:
R£: (AT -- NGO briefing Sat May 6

. From: lagon, Mark P
Sent: Friday, April 28, 2006 3:07 PM
To: Robinson, Brooks A
Cc: Noyes, JUlieta V (DRL)
Subject: RE: CAT -- NGO briefing Sat May 6
J--

B5

----·Vl
From: Robinson, Brooks A(Geneva)
Sent: Friday. April 28, 2906 12:29 PM
To:
Lagon, Mark P
Cc:
Noyes. Julieta V (DRL)
BE: CAT •• NIiQ ~riefing Sat Max

SlIhi:ct.

From:
Sent:
To:
Cc:

6

B5

Lagon, Mark P
Friday. April 28, 2006 4:03 PM
Robinson, Brooks A
Noyes, Julieta V (DRl)
2

UNCLASSIFIED

FP0945

UNCLASSIFIED
Subject:

RE: CAT -- NGO briefing Sat May 6

Great
-----Original Message---·From: Robinson, Brooks A(Geneva)
Sent: Friday, April 28, 2006 8:23 AM
To:
lagon, Mark P; Noyes, Julieta V (ORl)
Cc:
Kovar, Jeffrey OJ DePirro, Velia Mj Lubetkin, Wendy C; Oenig, Paul
Subject:
FW; CAT -- NGO briefing Sat May 6
Mark / Julieta:
I 'called a few NGOs this morning. It looks like we can get enough on
saturday to make it worthwhile. Most of them like early afternoon. How about 2:30-3:30 at
the Mission? As soon as you confirm we'll get out invitations.
By the way, HR Watch's Jennifer Oaskil from Washington and Amnesty
International's Daniel Gorevan from london will be in Geneva specifically for the CAT. They
would definitely want to attend, in addition to at least some of the Geneva-based staff.
We got the final scenesetter today. We'll wait to hear from you after
your Monday planning meeting re: we can send that out, and what other information materials
we might have or make. As for outreach to journalists, we will play that by ear and wait to
see whether Bellinger and/or Cully want to make a few phone calls at some point; that can be
done on very short notice.
- Brooks
P.S. I will be Charge during the CAT, so next week Wendy Lubetkin on my
staff will take over coordinating the NGO event.

**********************
Brooks Anne Robinson
Counselor for Public Affairs
US Mission, Geneva
tel: 41~22-749·436e
http://geneva.usmission.gov

UNCLASSIFIED

FP0946

UNCLASSIFIED

RELEASED IN PART
B5

Lee. Michelle G
From:
Sent:

To:
Cc:

Schou, Nina E
Tuesday, May 02, 2006 7:44 PM
Bellinger, John B(Legal)
Legal-L-HRR; Haines, Avril 0; Dorosin, Joshua L; Kovar, Jeffrey 0; Hata, Marianne J; Gale, T
Hanny

Attachments:

FW: LEGAL-#24995-V1-CAT_JBB_open.DOC
LEGAL-#24997-v1-CAT_scripC5_2_06. DOC; LEGAL-#24995-v1-CAT_JBB_open.DOC

Importance:

High

Subject:

John,
Here are two documents for your review. The first is your opening statement.

I

I

I

---

IThe second is the oral script we will use during the first session of the hearing.

B~

B5

c::J

If possible, we would appreciate your edits to the script, and any additional edits you may
have on your opening statement, by midday Geneva time Wednesday so that we may incorporate
them. If you would like to email the text, please do so to any of our accounts, and,cc Jeff
Kovar in Geneva. If you would like to make pen and ink edits, please fax them to Jeff Kovar
at the mission (811-41-22-749-4343).
Thanks for your help and your leadership. We'll celebrate when this is over.
Best,
Nina

UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 JUL 2009 200706444

1

UNCLASSIFIED
FP0947

I

UNCLASSIFIED
lee, Michelle G
From:

Sent:
To:
Cc:
SUbject:

RELEASED IN PART
B5

Q,£.ol

Bellinger, John B(legal)
Tuesday, May 02, 2006 10:06 PM
Schou, Nina E
legal-L-HRR; Haines, Avril D; Dorosin, Joshua L; Kovar, Jeffrey 0; Hata, Marianne J; Gale, 1
Hanny
Re: lEGAl-#24995-v1-CAT_JBB_open.DOC
B5

-----Original Message--·-From: Schou l Nina E <SchouNE@state.gov>
To: Bellinger. John 6(legal) <8ellingerJ8@state.gov>
cc: Legal-L-HRR <Legal-l-HRR@state.gov>j Haines. Avril 0 <HainesAD@state.gov>j Dorosin~
Joshua L <OorosinJL@state.gov>j Kovar J Jeffrey 0 <KovarJD@state.gov>j Hata~ Marianne J
<HataMJ@state.gov>j Gale~ T Hanny <GaleTH@state.gov>
Sent: Tue May 02 13:46:50 2006
Subject. RE: LEGAL-#24995·vl-CAT_JBB_open.DOC
We'll do our best. We're leaving shortly. I will discuss with Marianne to see that you have
hard copies~ and hopefully in your book.

-----Original Message----From: Bellinger J John B(Legal)(Room 6423)
Sent: TuesdaYJ May 02, 2906 1:46 PM
To: Schau~ Nina E
Cc: Legal-L-HRR; Haines, Avril D; Dorosin, Joshua l; Kovar. Jeffrey 0; Hata. Marianne J;
Gale, T Hanny
Subject: Re: lEGAl-#24995~VI-CAT_JBB_open.DO(
Can you print and put in my book?

I leave at 2ae pm.

-----Original Message----From: Schou, Nina E <SchouNE@state.gov)
To: Bellinger, John 8(Legal) <6ellingerJ8@state.gov>
CC: Legal-l-H~R <legal·L-HRR@state.gov>; Haines. Avril 0 <HainesAD@state.gov>; Oorosio,
Joshua l <OorosinJL@state.gov>; Kovar, Jeffrey 0 <KovarJD@state.gov>j Hata. Marianne)
<HataMJ@state.gov>j Gale, T Hanny <GaleTH@state.gov>
Sent: Tue May 02 13:44:06 2a06
Subject: FW: LEGAl-#24995-v1-CAT_JB8_open.DOC

UN~ITEDSTATESDEPARTMENTOFSTATE

VIEW AUTHORITY: ARCHIE M BOLSTER
ATE/CASE ID: 22 JUN 2009 200706444

UNcLASSIFIED
FP0948

_.~-

....

~---

_.--

UNCLASSIFIED
Here are two documents for your review. The first is your opening statement. This has been
cleared by DOJ and DHS. We hadn't received any comments from DOD.
The second is the oral script we will use during the first session of the hearing. As
discussed previouslYI it is .the reduced version of our longer Q's and A's. This has been
cleared by DOJ and DHS and the counsel's office for the Joint Chiefs.

If possible l we would appreciate your edits to the script, and any additional edits you may
have on your opening statement, by midday Geneva time Wednesday, so that we may incorporate

them. If you would like to email the text, please do so to any of our accounts, and cc Jeff
Kovar in Geneva. If you would like to make pen and ink edits please fax them'to Jeff Kovar
at the mission (011-41-22-749-4343).
I

Thanks for your help and your leadership. We'll celebrate when this is over.
Best,
Nina
«LEGAL-#24995-vI-CAT_JBB_open.DOC»

2

UNCLASSIFIED

FP0949

UNCLASSIFIED
Lee, Michelle G
Robinson, Brooks A
RELEASED IN
Wednesday, May 03. 2006 9:26 AM
B6
Kovar, Jeffrey'O
Cassel, Lynn L; Lubetkin, Wendy C; OePirro, Velia M; Barton, Paula J
FW: AI's CAT briefing - Corrected Version
cover. doc; Summary.doc; Main text.doc

From:

Sent:
To:
Cc:
Subject:
Attachments:

PART

YEs, see below.

From: DePirro, Vella M
Sent: Tuesday, May 02,2.006 4:37 PM
To: Robinson, Brooks A
SUbject: FW: Ai's CAT briefing - Corrected Version

Brooks: here's the latest from Amnesty.
Velia De Pirro
Political Counselor
U.S. Mission Geneva
(41) 22~749-4111

I

From:
Sent: T~u"""e=sdr:-a=y,""M""a:--y=O"'2'--,""Z""'OO""6""'1;-::oo;o35""""'PMrr-------To: DePlrro, Velia M
Cc: levin, Jan; Kovar, Jeffrey 0; Barton, Paula Jil
Subject: Fw: AI's CAT briefing· Corrected Verslo'='n--------J

B6
B6

Dear Vella,
J am forwarding below, again for Information, a corrected copy of the supplementary brief to the CAT shared with
you Jast week in connection with the forthcoming consideration of the report of the USA.
~

The corrections pertain to typographical errors in footnotes, the proper name of the Bri.tish Indian Ocean territory
of Diego Garcia, a new Annex II, which reproduces excerpts from the 'Convention against Torture, and the
deletion of the mention of Egypt in the list of countries with secret C1A-run detention facHiiies on page 19.
WIth best regards.
Peter

B6
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

1

UNCLASSIFIED
FP0950

Rue du Cendrier 22
CH-1201 Geneve
Suisse.

UNCLASSIFIED

B6

Intemet communications are not secure and therefore Amnesty lntemationalltd does not accept legal
responsibility for the contents of this message. If you are not the intended recipient you must not disclose or rely
on the information in this a-mail. Any views or opinions presented are solely those of the author and do not
necessarily represent those of Amnesty International Ltd unless specifically stated. Electronic communications
including email might be monitored by Amnesty International Ltd. for operational or business reasons.

This message has been scanned for viruses by BlackSpider MailControl

2

UNCLASSIFIED
FP0951

UNCLASSIFIED

RELEASED IN PART
B5
QE3~

Lee, Michelle G
From:
Sent:

To:
Cc:
Subject:
Attachments:

Hill, Steven R
Tuesday, July 24,20079:13 PM
Kovar, Jeffrey 0
Levin. Jan; Gale, T Hanny; DePirro, Velia M; Bettauer, Ronald J; Legal-HRR-DL;
Padmanabhan, Vijay M; Barks-Ruggles. Erica J (DRL); Sicade, Lynn M (DRL); 10-RHSHuman Rights-DL
CAT - One--Year Follow-Up Document for Transmittal
LEGAl--#53330-v1-CAT_One_Year_Update_TransmittaLLetter.DOC; Williamson
Declaration.pdt, LEGAL--#51 098-v3-CAT_Follow_Up_FINAL. DOC

Jeff:
AS discussed, please transmit the attached one-year follow-up (including annexes) to the
Committee Against Torture. Since the one year deadline is July 25, please transmit NlT COB
tomorrow (Wednesday).
B5

A draft cover letter is also attached. The six annexes to the report are listed below. Due
to the size of the files, for all but the first item, I'm providing a link to the file in an
online location so that you can have them printed them locally. (Be advised that this will
take some time due to the length of some documents.)
Please confirm transmittal and forward to us a scanned copy of the signed cover letter.
Thanks very much for your help.
Steve

Annexes
1.
Declaration of Clint Williamson (attached)
2.
Department of Defense Directive 2319.91E http://www.defenselink.mil/pubs/pdfs/Detainee Prgm Dir 2319 9-S-96.pdf
Army Field Manual 2-22.3, Human Intelligence Collector Operations
3.
www.fas.org/irp/doddir/army/fm2-22-3.pdf
4.
Military Commissions Act of 2996 (P.l. 199-366) - http:ILfrwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=199 cong bills&docid=f:s393genr.txt.pdf
5.
sexual Violence Reported by Correctional Authorities, 2995 (Department of Justice,
Bureau of Justice Statistics) - http://www.oip.usdoi.gov/bjs/pub/pdflsvrca9S.pdf
6.
oepartment of Homeland Security, "Hurricane Katrina: What Government Is Doing" .
http://www.dhs.gov/xprepresp/programs/gc 11576493491ge.shtm

illUTEDSTATESDEPARTMENTOFSTATE
REVIEW AUTHORIry: ARCIDE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
PATE/CASE ID: 24 JUL 2009 200706444

1

UNCLASSIFIED
FP0952

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-West, Lora
From:

Sent:
To:

Cc:
SUbject:

Brancato, Gilda M
Monday, June 19, 20064:13 PM
Brancato, Gilda M; Lagon, Mark P; Witten, Samuel M; Kovar, Jeffrey 0; Levin, Jan; Deeks,
Ashley S; Manning, Denise; Johnson, Thomas A; Sicade. Lynn M (DRL); McKee, Amy E;
Padmanabhan, Vijay M; Williams, Kendi
Rohn, Douglas C; DePirro, ,velia M; Barton. Paula J; Dorosin, Joshua L; Propp, Kenneth R;
Noyes, Julieta V (DRL); Legal-L-HRR; Bettauer, Ronald J; Cassel, Lynn L; Leatham, Rachel
M
RE: Final disappearances USG intervention at HRC (written and oral statements)

Attached for your records is the final version of the written and oral USG statements on the forced disappearances
convention, with final corrections, and comments from DoD, DoJ, and NSC incorporated. Please discard the versions of

~

~

LEGAL-#26705-vl- LEGAl-#26432-vl-

OraLStatement... Statement_aC2...
these two documents distributed on Friday night.
Paula and Jan, I will forward a copy of our written statement tal
~f th~ UK Mission in Geneva and to other
missions I have been in contact with on the issue. Thank you.

B6

From: Brancato, Gilda M
Sent: Friday, June 16, 2006 7:45 PM
To: Lagon, Mark P; Witten, Samuel M; Kovar, Jeffrey D; LeVin, Jan;.Padmanabhan, Vijay Mi Deeks, Ashley Si Manning,
Denise; Johnson, Thomas Ai Sicade, Lynn M (DRL); McKee, Amy E
CC: Rohn, Douglas C; DePirro, Veha M; Barton, Paula J; Dorosin, Josh~a L; Propp, Kenneth R; Noyes, Julieta V (DRL);
legal-L-HRR; Beltauer, Ronald J; Cassel, Lynn L; Leatham, Rachel M
Subject: RE: Final disappearances USG intervention at HRC (written and oral statements)
Attached for USG delegation at the HRC are two USG statements on the draft Disappearances Convention, a lengthy
written statement for distribution, submission into the record as an official UN document,· and for posting on our website,
as well as a two pager intended for delivery in the two minutes allotted to us. Also attached for our information is our
Closing statement at the 2005 fifth round of negotiations (this has been made pUblic) and an information memo to John
Bellinger as background (for internal Department and Mission use only). Thank you, good night and good luck!l- wish
we were there With yoll alll! «Fife: LEGAL-#26432-v1·
Statement_aC2006_HRC_on]orced_Disappearances_textDOC» «File: LEGAL-#26706·v1OraLStatemenCon_Disappearances_aCHRC.DOC» «File: lEGAL-#26632~v1­
Forced_Disappearances_UpdatEUo_JBB.DOC» «File: LEGAL-#18367-v1Disappearances_treaty-USG_FinaLSTatement. DOC»

From: Brancato, Gilda M
Sent: Tuesday, June 13, 2006 6:53 PM
To: Brancato, Gilda M; Lagon, Mark P; Witten, Samuel M; Kovar, Jeffrey Di Levin, Jan; Harris, Robert K; Padmanabhan,
Vijay Mi Deeks, Ashley Sj Manning, Denise; Johnson, Thomas Ai Sicade, Lynn M (DRL)
ee: Rohn, Douglas C; DePirro, Vella M; Barton, Paula J; Dorosln, Joshua l; Propp, Kenneth R; Noyes, Julieta V (DRL);
Legal-L-HRR
Subject: RE: Final disappearances text.pdf/for clearance/USG intervention at HRC
As promised, attached for your clearance is an expanded Statement of the USG on the draft Disappearances Convention,
to be delivered and entered into the record at the HRC. Please comment and clear by Thursday COB. Thank you very
mUCh. Gilda «File: LEGAL-#26432-v1-StatemenCaC2006_HRC_on_Forced_Disappearances_text.DOC »

From: Brancato, Gilda M
Sent: Thursday, June 08,20067:37 PM
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

1

UNCLASSIFIED
FP0953

UNCLASSIFIED
To: Lagon, Mark Pi Witten, Samuel M; Kovar, Jeffrey Di Levin, Jan; Harris, Robert K; Padmanabhan, Vijay Mi Deeks,
Ashley Si Manning, Denlsei Johnson, Thomas Ai Sicade, Lynn M (DRL)
Cc: Rohn, Douglas Ci DePirro, Vella Mi Barton, Paula J; Dorosin, Joshua Li Propp, Kenneth R; Noyes, Julieta V (~L)i

•.

Legal-L~HRR

Subject: Final disappearances text.pdf/for dearance/USG intervention at HRC

«File: LEGAL-#26432-vl-StatemenCat_2006_HRC_oD_Forced_Disappearances_text.DOC»
Final disappearances text.pdf»

«File:
.'
B5

Also attached FYI is the final text of the instrument (Annex I to the Report starting at page 3D), the Report of the Fifth and
final session of the Working Group (US interventions and objections are noted in paras 86, 94,100-01,104,109,114,
117, 125, and 126) and our Closing Statement at the Fifth Session on pages 48-49 of the Report.
After I receive Department cleraances I will circulate to DOJ, DoD, and possibly NSC for clearance. Thank you all, Gilda

2

UNCLASSIFIED
FP0954

RELEASED IN PART
B5

UNCLASSIFIED

V'Jest, L,ora
From:

Sent:
To:

Cc:

Brancato, Gilda M
Saturday, June 17, 2006 1:45 AM
Lagon, Mark P; Witten, Samuel M; Kovar, Jeffrey 0; Levin, Jan; Padmanabhan, Vijay M;
Deeks, Ashley S; Manning, Denise; Johnson, Thomas A; Sicade, Lynn M {DRL); McKee, Amy
E
Rohn, Douglas C; DePirro, Velia M; Barton, Paula J; Dorosin, Joshua L; Propp, Kenneth R:
Noyes, Julieta V (DRL); Legal-L·HRR; Bettauer, Ronald J; Cassel, Lynn L; Leatham, Rachel

M

Subject:

.

RE: Final disappearances USG intervention at HRC (written and oral statements)

Attached for USG delegation at the HRC are two USG statements on the draft Disappearances Convention, a lengthy
written statement for distribution, submission into the record as an official UN document, and for posting on ou'r website,
as well as a two pager intended for delivery in the two minutes allotted to us. Also attached for our information is our
Closing statement at the 2005 fifth round of negotiations (this has been made public) and an information memo to John
Bellinger as background (for intemar Department and Mission use only). Thank you, good night and good luck!l- wish

'~'
~w'
~

'W...
~..
~~

...
~
~~

w"
~.
~~

lEGAl.-#26432-v!-lEGAL-#26706-vl- LEGAl·#26632·vl· LEGAL-#18367-vl-

Statemenl.aL2... OraLStatemenL.. Forced_Dlsappe... Disappearances...
we were there with you allll

From: Brancato, Gilda M
Sent: Tuesday, June 13, 2006 6:53 PM
To: Brancato, Gilda Mi Lagon, Mark P; Witten, Samuel Mj Kovar, Jeffrey OJ Levin, Jan; Harris, Robert Kj Padmanabhan,
Vijay Mi Deeks, Ashley Sj Manning, DenlSej Johnson, Thomas A; Sicade, Lynn M (DRL)
Cc: Rohn, Douglas Cj DePJrro, Velia Mj Barton, Paula ]jDorosln, Joshua Lj Propp, Kenneth R; Noyes, Julieta V (DRL)j
legal+HRR
Subject: RE: Final disappearances text.pdf/for c1earance/USG Intervention at HRC

As promised, attached for your clearance is an expanded Statement of the USG on the draft Disappearances Convention.
to be delivered and entered into the record at the HRC. Please comment and clear by Thursday COB. Thank you very
much. Gilda <:<: File: LEGAL-#26432-v1-Statement_at_2006_HRC_oo_Forced_Disappearanees_text.DOC »
From: Brancato, Gilda M
Sent: Thursday, June 08, 2006 7:37 PM
To: lagon, Mark Pj Witten, Samuel Mi Kovar, Jeffrey 0; leVin, Jan; Harris, Robert K; Padmanabhan, VIjay Mj Deeks,
Ashley S; Manning, Denise; johnson, Thomas Aj Sicade, lynn M(DRL)
Cc: Rohn, Douglas C; DePirro, Velia Mj Barton, Paula J; Dorosin, Joshua Lj Propp, Kenneth R; Noyes, Julieta V (DRl);
Legal·l·HRR
Subject: Final disappearances text.pdf/for c1earance/USG intervention at HRC

«File: LEGAL-#26432-vl-Statement_at_2006_HRC_onyorced_Disappearances_text.DOC»
Final disappearances text.pdf»

«FHe:
B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED

FP0955

UNCLASSIFIED
Also attached FYI is the final text of the instrument (Annex I to the Report starting at page 30), the Report of the Fifth and
final session of the Working Group (US interventions and objections are noted in paras 66,94,100-01,104,109,114,
117, 125, and 126) and our Closing Statement at the Fifth Session on pages 48-49 of the Report.
""
After I receive Department cleraances I will circulate to DOJ, 000. and

po~sibly

NSC for clearance. Thank you all, Gilda

\..

U1'JCLASSIFIED

FP0956

UNCLASSIFIED
West, Lora
From:

Sent:
To:
Cc:
Subject:

RELEASED IN PART
B5

Brancato. Gilda M
Thursday, June 15, 2006 12:52 AM
Brancato, Gilda M; Johnson, Thomas A: Lagon, Mark P; Witten, Samuel M; Kovar, Jeffrey 0;
Levin, Jan; Harris, Robert K; Padmanabhan. Vijay M; Sicade, Lynn M (DRL); Witten, Samuel
M
Rohn, Douglas C; DePirro, Velia M; Barton. Paula J; Noyes; Julieta V (DRL); Legal-L-HRR
RE: URGENT/Final disappearances texVfor clearancelinfo memo to L

TO Sam W. Tom J. Lynn S, Jeff K. Bob H: We would like to provide John Bellinger with a short info memo on the
disappearances draft convention, so may we have your clearances on the attached one-pager by Thursday COB (so sorry
for the short fuse, Bob begins leave this weekend and the convention could be adopted by HRC as early as next week).

~

.

LEGAL-# 26632·vlForced_Dlsappe.~ .

. All others are copied for their information. Thank you. and again apologies for the short tuse.

From: Brancato, Gilda M
Wednesday, June 14, 20061:23 PM
ro: Johnson, Thomas Ai Lagon, Mark P; Witten, Samuel Mi Kovar, Jeffrey Di Levin, Jani Harris, Robert K; Padmanabhan,
Vijay M; Deel<s, Ashley S; Manning, Denise; Sica de, Lynn M (DRL)
.
Cc: Rohn, Douglas C; DePirro, Velia M; Barton, Paula J; Doras;n, Joshua L; Propp, Kenneth R; Noyes, Julieta V (DRl)i
LegaJ-L-HRR
Subject: RE: Final disappearances text.pdf/for c1earance/USG Intervention at HRC
Sent~

B5

From: Johnson, Thom?s A
Sent: Wednesday, June 14,2006 11:03 AM
To: Brancato, Gilda M; Lagon, Mark Pi Witten, Samuel M; Kovar, Jeffrey 0; Levin, Jan; Harris, Robert K; Padmanabhan,
Vljay M; Deeks, Ashley S; Manning, Denise; Sieade, Lynn M (DRL)
Cc: Rohn, Douglas Ci DePirro, Velia M; Barton, Paula J; Doros;n, Joshua L; Propp, Kenneth R; Noyes, Julieta V (DRL);
legal·l-HRR
SUbject: RE: Final disappearances text.pdf/for clearance/USG Intervention at HRC

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

1

UNCLASSIFIED
FP0957

UNCLASSIFIED
B5

----OrIginal Message---From:
Brancato, Gilda M
Sent:
Tuesday, June 13, 2006 6:53 PM
To:
Brancato, Gilda Mj Lagon, Mark P; Witten, Samuel Mj Kovar, Jeffrey 0; Levin, Jan; Harris, Robert K; Padmanabhan, Vijay M; DeeKs,
Ashley S; Manning, Denise; Johnson, Thomas A; Sicade, Lynn M(CRL)
ee:
ROM, Douglas C; DePlrro, Vella M; Barton, PaUla J; Corosin, Joshua L; Propp, Kenneth R; Noyes, Julieta V (CRL); legal-L-HRR
SUbject:
RE: Flnal disappearances text,pdf/for clearance/USG Intervention at HRC

As promised. attached for your clearance is an expanded Statement of the USG on the draft Disappearances
Convention, to be delivered and entered into the record at the HRC. Please comment and clear by Thursday COB.
Thank you very mUCh, Gilda «File: LEGAL-#26432-v1Statement_aC2006_HRC_on_Forced_Disappearances_text.OOC »

From: Brancato, Gilda M
Sent: Thursday, June 08,20067:37 PM
To~

Lagon, Mark p~ Witten, Samuel M; Kovar, Jeffrey D; levin, Jan; Hams, Robert K~ Padmanabhan, Vijay Mi Deeks,
Ashley Si Manning, Denise; Johnson, Thomas A; Slcade, Lynn M (DRL)
Cc: Rohn, Douglas C; DePfrro, Velia M; Barton, Paula Ji Darosin; Joshua Lj Propp, Kenneth Ri Noyes, Julieta V (DRL);
Legal-l-HRR
Subject: Final disappearances text.pdf/for c1earance/USG InterventIon at HRC

«File: LEGAL-#26432-vl-Statement_at_2006_HRC_on_Forced_Disappearances_text.DOC»
Final disappearances text.pdf»

«File:
B5

Also attached FYI is the final text of the instrument (Annex I to the Report starting at page 30), the Report of the Fifth
and final session of the Working Group (US interventions and objections are noted in paras 86,94, 100-01,104, 109,
114, 117. 125, and 126) and our Closing Statement at the Fifth Session on pages 48-49 of the Report.
After I receive Department cleraancesl will circulate to DOJ, 000, and possibly NSC for clearance. Thank you an,
Gilda

2

UNCLASSIFIED
FP0958

UNCLASSIFIED
Peay, Michael T

RELEASED IN PART
B5

C);{23

Brancato, Gilda M (L-HRR)
Saturday, September 25, 2004 2:27 AM
Willen, Samuel M (SBU); Jacobson, Linda (SBU); Manning, Denise (SBU); Dorosin, Joshua L
(L-PM); Brooks, Waldo W (L-PM); Peay. Michael T; Solomon, Steven A; Harris, Robert K (LHRR); Cummings, Edward R (L-ACV); Gorove, Katherine M (L-HRR); Brancato, Gilda M (LHRR)
FW: Latest draft: forced disappearances trealy text

From:
Sent:

To:

SUbject:

~

un Jorced.dlsappea
ranee. doc

FYI.

-----original Message----.
From: Thomas.Burrows@usdoj.gov [mailto:Thomas.Burrows@usdoj.gov]
Sent: Friday, September 24, 2004 5:12 PM
To: 'molly.groom@dhs.goV'j 'BRANCATOGM@state.gov·
Cc: 'Regina.Hart@dhs.gov'; Molly.Warlow@usdoj.gov; 'HarrisRK2@state.gov'
Subject: RE: Latest draft: forced disappearances treaty text

B5

-----Original Message----From: BRANCATOGM@state.gov [mailto:BRANCATOGM@state.gov]
Sent: Wednesday, September 08, 2004 12:03 PM
To: Burrows, Thomas; molly.groom@dhs.gov
Ce: HarrisRK2@state.gov
Subject: FW: Latest draft: forced disappearances treaty text

B5

I.

UNI"I•."n.

C" ..........."C"

' ........" C" ..........."

REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 ruN 2009 200706444

1

UNCLASSIFIED
FP0959

UNCLASSIFIED
B5

2

UNCLASSIFIED
FP0960

UNCLASSIFIED

RELEASED IN PART
B5

Peay, T. Michael

Kovar, Jeffrey D (SBU)
Tuesday, January 13. 200410:18 PM
Brancato, Gilda M (SBU); Car/son, Mary'H (SBU); Pfund. Peter H(CA/OCS/CI); Mason, Peter
W (SBU)
.
Peay, T. Michael(Geneva); Harris, Robert K (SBU); Brown, Catherine W (Legal) (SBU); Gaw,
Monica A(CA/OCS/PRI); Bernier-Toth, Michelle(CAlOCS/CI); Terrilf, Damon A (SBU)
RE: Child ",bduction provisions in forced disappearances convention/consular notification
provision

From:

Sent:
To:
Cc:
Subject:

B5

-·---orlglnal Message---·
From:

Sent:
To:

Cc:
Subject::

Brancato, Gilda M (SaU)
Tuesday, January 13, 2004 3:30 PM
.
carlson, Mary H (SBU); Pfund. Peter H(CA/OCS/O); Kovar, Jeffrey () (SBU); Mason, Peter W (SaU)
Peay, T. Michael{Geneva); Harris, Robert K (SBU)
Olild abduction provisions in forced disappearances conventlon(consu!ar notification provision

B5

CHILO ABDUCTION PROVISIONS
ARTICLE 23.
Each state party shall take the necessary measures to prevent and punish under its crimina law:
(a) the abduction or appropriation of children one of whose parents in the vIctim of an enforced disappearance;
(b) The falsification or destruction of documents attesting to the true identity of the 9hild referred to in para (a).
ARTiCLE 24. State parties shall assist one another in the search for and identification and location of minors who
have been abducted or appropriated in the circumstances described ;n artlcle 23(a).
ARTICLE 25.
(1) When a child who has been abducted or appropriated in the circumstances described in article 23(a) is found on
the terrItory of a State party, the question of the child's return to his or her family of origin shall be resolved eithr under
the domestic law of that state party, or under bilateral or mulitateral agreements which that State has entered into with
another State in which the family of origin lives.
(2) In all cases. the best interests of the child are a primary consdieation, and a child who is capable of jUdmgent shall
have the right to express his or her views freely and to have them given due weight in the light of his or her age and
level of maturity.
.
.
IN

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

1

UNCLASSIFIED
FP0961

Thank you all!

UNCLASSIFIED

2

UNCLASSIFIED
FP0962

',-

UNCLASSIFIED

\

t/c.~. 'i !zoo ~ jUll;. G"'?/ M.,Sc.. 2RELEASED IN PART
B5
Text Proposed by the United States Delegation
[Chapter 2 - Offenses and penalties]
Article 2

B5

1. Each S te Party s all take the necessary measures to ensure
that new: the acts which comprise] enforced disappearance, [new:
for purp ses of this instrument], constitute [new:] a punishable '
offense under its criminal law {Qr alternatively: is subject to criminal
sanction under its criminal law]. [New sentence: The same shall
apply to an attempt to commit an enforced disappearance and to an
act that constitutes complicity or participation in, or a conspiracy to
commit, an enforced disappearance.]

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
FP0963

UNCLASSIFIED
E/ c tv· ~ !LOO t.t

IlJJ ~. ,,7../M~SG. ~
GE~6 t

Text proposed by United States delegation
Article 1.

RELEASED IN PART
B5

"For purposes of this instrument, an enforced disappearance is
considered to be an arrest, detention, or abduction of a person by, or
with the authorization, support or acquiescence of, a State, followed by
its refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such person, with the
intention of removing that person from the protection of the law for a
prolonged period of time."
B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
FP0964

UNCLASSIFIED

RELEA~PART
B5
Text proposed by United States delegation
Article 1.
"For purposes of this instrument, an enforced disappearance is
considered to be an arrest, detention, or abduction of.a person by, or
with the authorization, support or acquiescence of, a State, followed by
its refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such person, with the
intention of removing that person from the protection of the law for a
prolonged period of time."
.
. ... _....
.. -. ..
B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 JUL 2009 200706444

UNCLASSIFIED
FP0965

, ":

YahOo! Mall iL..

UNCLASSIFIED
Page 1 of3
RELEASED IN PART
B6, B5

_

-

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Print' -

B6

~los.e._~I"!~~~

I

Subject: Re: Enforced Disappearances Negotiations (12-23 January 2004)
To: "Michael

peaY"~

From: "carmen Rued

.

B6

1.-_-------

Date: Mon, 26 Jan 2004 17:37:07 +0100

Dear Michael,
Thanks very much for your kind words and for sendin~ me your
observations.
It certainly facilitates my work , as it is not always easy to take
accurate
notes during the meeting. It is my recollection also that they were
accepted by the Chair.
Best regards,
Carmen

Michael Peay

I

----J

hoo.com>
Reaytm@state. 9.Q.y> 2~cato9!!!@ stat~-,-g.2.Y:

Disappearances Negotiations (12-23
26.01. 2004 13: 28

To:

B6
B6

cc:
Subject:

Enforced

January 2004)

~TEDSTATESDEPARTMENTOFSTATE

REVIEW AUfHORITY: ARCHIE M BOLSTER
23 JUN 2009 200706444
DATE/CASE

ID:

B5

http://us.f411.mai1.yahoo.com/ym/ShowLettJrftJGfn~m6)2555375534504916'1/27/04
-

FP0966

· I a.l1Uu: lYlaU

rage /., or ~

-1--------imCLASSIFIED

B6
B5

T

I hope these clarifications will assist you in preparing a final Draft
Report. Again, Carmen, I particularly appreciate this opportunity to
ensure our interventions are inlcuded for the benefit of all
delegations
that will be providing further comments on the Draft Report you are
preparing. Please contact me if you have any questions.

http://us.f411.maiI.yahoo.comlymlShowLe~~792_5553755_345049_16

1/27/04

FP0967

· YahOo! Mall

-1

--\..1TNCLASSIFIED

Page 3 of3

B6

Best personal regards to you and your staff.

T. Michael Peay
Legal Adviser
u.s. Mission Geneva
022-749-4316
(fax)022-749-4343
Do you Yahoo!?
Yahoo! SiteBuilder - Free web site building tool. Try it!

http://us.f411.mail.yahoo.com/ym/ShowLeUNgrt~~792_5553755_345049_16

1/27/04

FP0968

UNCLASSIFIED
RELEASED IN PART
'\

:B$lA/2004/WG. 22/Misc. 38

COMMISSION ON HUMAN RIGHTS

Working Group on a draft legallv binding
normative instrument for the protection of
all persons from enforced disappearance
Geneva, 12-23 January 2004

20 January 2004

G855
PROPOSITION DE LA PRESIDENCE

ART.S
AJF

Tout Etat partie qui, a l'egard de la dispantion forcee, applique un regime de
prescription, prend les mesures necessaires pour que Ie delai de prescription de l' action
penale:

1.

B5
a) soit e ongue ur e e proportionne fa I'extreme gravite de cette infraction;
b) necommence pas a courir tant que les auteurs de la disparitiod Corcee
dissimulent Ie sort reserve a la personne disparue et Ie lieu ou elle se trouve,
et que les faits n'ont pas ete elucides.

2.

Le delai de prescription de Paction penale prevu au paragrapbe 1 est suspeodu aussi
iongtemps que, dans un Etat partie, toute personne dont les droits civils et politiques
ont ete violes oe dispose pas d'un recours utile.

<:"

*****
Each State Party wbo uses a Jimitation with regard to enforced disappearances shall
take the necessary measures to ensure that the term of limitation as regards criminal
proceedings shall :

1.

a) be of [ijong duration ~proportionate to the extreme gravity of tbe
offence;
b) Dot commence as tong as the autbors ofthe enforced disappearance conceal
the fate and the whereabouts of the disappeared person and the facts remain
unclarified.
The term of limitation of criminal proceedings, as foreseen in paragrapb I, shall be
suspended as loog as, within a State Party, any person whose civil and political
rights have been violated does not have effective remedy.

2.

71

,..,..,..,..

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClnE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 JlJL 2009 200706444

B5

UNCLASSIFIED
FP0969

RELEASED IN PART
B5

~

8
ENFORCED DISAPPEARANCES

Working Lunch
September 24th , 2004

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 24 JUL 2009 200706444

1

UNCLASSIFIED

FP0970

UNCLASSIFIED

FP0971

UNCLASSIFIED

• Part I
• Article 1
• For the purposes 0 f [the present instrument} enforced
disappearance is considered to be' the deprivation of a
person's liberty, in whatever form, committed by agents
of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the
State, followed by refusal to acknowledge the
deprivation of liberty or concealment of the fate or
whereabouts of the disappeared person, which places
such person outside the protection of the law. Does not
include non-state actors
2

UNCLASSIFIED

FP0972

UNCLASSIFIED

-Article Ibis (new)
1. No one shall be subjected to enforced disappearance.
2. (fromformer.UI-E) No circumstances whatsoever,
whether a state of war or threat of war, internal political
instability or any other state of emergency, may be
invoked as a justification of enforced disappearance

..
\

!
;

3

UNCLASSIFIED
-

-_ .. _-- -------

FP0973

· UNCLASSIFIED

• Article 2 (modified) creates stand-alone crime and
number 2 addresses non-state actors

1. Each. State Party shall take the necessary measures to
ensure that enforced disappearance, as defined in
article 1, constitutes an offence under its criminal
law.
2. Each St~te Party shall take equivalent measures when
persons or groups of persons acting without the
authorization, support or acquiescence of the State
are responsible for dealings defined iri article 1.

4

UNCLASSIFIED
---- . - - . __ .-

FP0974

UNCLASSIFIED

-Article 2 his (new)

The widespread or systematic practice of enforced
disappearance constitutes a crime against humanity
and shall attract the consequences provided for under
intemationallaw.

5

UNCLASSIFIED
._--_._---.. -

---~

~

........""...

.

-

_....

.

.

FP0975

UNCLASSIFIED

-Article 3 (reorganised)
1. Each State Party shall take the necessary measures to
pursue and punish those who commit or contribute to the
commission of an enforced disappearance..
2. The following shall be punished :
a) the perpetrators of and accessories in an enforced
disappearance.
b) the attempt to commit an enforced disappearance,
c) the conspiracy to commit an enforced
disappearance,
6

UNCLASSIFIED
------

..

---

FP0976

UNCLASSIFIED

3. ·The following shall also be punished :
a) persons·who order or encourage the commission or
attempted commission of such an offence, and persons
who facilitate its commission or attempted comniission by
aiding, abetting or otherwise assisting in it, including
providing the means for its commission or attempted
commission, shall be .punished,

7

UNCLASSIFIED

..............

_

........•.......

__ .._ _

_

-

_.

FP0977

UNCLASSIFIED

b) a superior officer who:

(i) either knew, or consciously disregarded information
which clearly indicated, that subordinates were
committing or about to commit an enforced
disappearance, and who
(ii) failed to take all necessary and reasonable measures'
within his or her power to prevent or repress th~
enforced disappearance or to submit the matter to the
competent authorities for investigation and prosecution.
8

UNCLASSIFIED

FP0978

UNCLASSIFIED

4.. (former 6) An order of a superior officer or a public
authority may not be invoked as a justification of an
enforced disappearance.

9

UNCLASSIFIED
.-~----

---.. _.-- _--_. __

.

__

_-----_

-,---

-

-

_-_

_

_

•...

FP0979

UNCLASSIFIED

• Article 4
1. Each State Party shall make enforced disappearance
punishable by appropriate penalties which take into
account its extreme seriousness.
2. Each State Party may establish:

a) mitigating circumstal1ces inter alia for persons who,
having been involved in the commission of an enforced
disappearance, effectively contribute to bringing the
disappeared person forward alive, or contribute to
elucidating cases of enforced disappearance or
identifying the perpetrators of an enforced
disappearance.
10

UNCLASSIFIED

. . . . . . . . . ._ •• _ _ •• __ •••••• _.....

+.- ••- . _ - - - -

FP0980

uNCLASSIFIED

a) (complemented) .Aggravating circumstances inter alia in
the event of death of the victim or the commission of an
enforced disappearance in respect of pregnant women,
minors' or other particularly vulnerable persons.
.

.

11

UNCLASSIFIED

FP0981

UNCLASSIFIED
135

Without prejudice to article 2 bis,
1. Each State Party which applies a statute of limitations in
respect of enforced disappearances shall take the
necessary measures to ensure that the term of limitation
for criminal proceedings

a) is oflongduration and pr~portionate to the extreme
seriousness of the offence;
b) shall commence from the moment when the offence of
enforced disappearance ceases and the fate of the
disappeared person is established.
12
UNCLASSIFIED

...•..•.__ .. _._

__ .

_

_._--_. __

_..

FP0982

UNCLASSIFIED .

2.

T4e statute of limitations for criminal proceedings
under paragraph 1 shall be suspended in a State
P.arty as long as any victim of enforced
disappearance does not have an effective remedy.

Article 6 (see 3,3) .
Article 7 (deleted)
Article 8 (deleted)
13

UNCLASSIFIED

FP0983

UNCLASSIFIED

-Article 9 (reorganized and modified)
1. "Each State Party shall take such measures as may be
necessary to establish its jurisdiction over an enforced
disappearance:
a) when the offence is committed within any territory
under its jurisdiction or on board a vessel flying its
flag or an aircraft registered in accordance with its
.law at the time of the facts;
b) when the alleged perpetrator of the offence is one
. of its nationals or a stateless person habitually
residing in its territory;
c) when ·the disappeared person is one of its nationals
and the State deems it appropriate to do so~
14

. UNCLASSIFIED

FP0984

UNCLASSIFIED

2. Each State Party shall also take the·'necessary measures
to establish its jurisdiction over an enforced
disappearance ,when the alleged perp~trator of the '.
offence is in a territory under its jurisdiction, unless the
State extradites him or her or transfers him or her to
another State or surrenders him or her to an
international criminal tribunal whose jurisdiction it has
recognised.

3. [The present instrument} does not exclude any criminal
jurisdiction exercised in accordance with national laws..

15

UNCLASSIFIED

FP0985

-

UNCLASSIFIED

• Article 10
1. Upon being satisfied, after an examination of
information available to it, that the circumstances so
warrant, any State Party in whose territory a person
,alleged to have cpmmitted an enforced disappearance is
present,' shall take him or her into custody or take other
legal measures to ensure his or her presence.. The
custody and <)ther legal measures shall be as provided in
the law of that State but may be continued only for such
time as is necessary to enable any criminal or
extradition proceedings to be instituted.
16

UNCLASSIFIED

FP0986

UNCLASSIFIED

2. The State Party which has taken the measures referred
to in paragraph 1 shall immediately make an
investigation into t}le facts. It shall notify the States
Parties which may have jurisdiction in accordance with
.paragraph 1 of article 9 of the measures which it has
taken under paragraph 1 of this article, particularly of the
fact that such person is in custody and of the
circumstances which warrant his or her detention, the
findings of its investigation and shall indicate to those'
States whether it intends to exercise jurisdiction.

17

UNCLASSIFIED

FP0987

UNCLASSIFIED

3. Any person in custody pursuant to parag.raph 1 shall
be assisted in communicating immediat~ly with the
nearest appropriate representative of the State of which he
. or she is a national, or, ifhe or she is a stateless person,
with the representative of the State where he or she
usually resides. .

18

UNCLASSIFIED

FP0988

UNCLASSIFIED

• Article 11
1. The State Party in the territory under whose jurisdiction
a person alleged to have committed any enforced
disappearance is found shall, if it does not extradite him
or her or transfer him or her to another State or surrender
him or her to an international criminal tribunal whose
jurisdiction it has recognised, submit the case to its
competent authorities for the purpose of prosecution.

19

UNCLASSIFIED

FP0989

UNCLASSIFIED

2. These authorities shall take their decision in the same
manner as in the case of any ordinary offence of ~ serious
nature under the law of that State. In the cases referred to
in paragraph 2 of article 9, the standards of evidence
required for prosecution and conviction shall in no .way be
less stringent than those which apply in the cases referred
to in paragraph 1 of article 9.

'1

20

UNCLASSIFIED
_.----_._-_ ...

-

_._--

FP0990

UNCLASSIFIED

3. (modified) Any person charged with an offence of·
enforced disappearance shall be tried by an independent
and impartial court, duly established by law, which
guarantees the right to a fair trial.
4. (new) Any person regarding whom proceedings are

brought in connection with an enforced disappearance
shall be guaranteed" fair treatment at all stages of the
proceedings.

21

UNCLASSIFIED
",,-

--

-----.... _......

.

_

_-_...

.

__..

_-_

_...

- -----.

__

_ _._. __

~

_----_.._.. __

.. __.. -

_

FP0991

UNCLASSIFIED

, • Article 12 (modified)
1. Each.State Party shall ensure that any person' who alleges
that someone has been subjected to enforced
disappearance has the right to complain to a competent
authority, which thoroughly investigates the complaint
immediately and impartially. Appropriate steps shall be
taken, where necessary, to ensure that the complainant,
witnesses, the relatives of the disappeared person and their
defence counsel as well as those participating in the
investigation are protectyd against all ill-treatment or
intimidation as a consequence of the complaint or any
evidence given.
22

UNCLASSIFIED
-

-----

--

__

_ ... -

-

__

._0

__

FP0992

UNCLASSIFIED

2. Whenever
there are reasonable grounds to believe that
.
a person has been subjected to enforced disappearance,
any State Party shall refer the matter tq the authority
referred to in paragraph 1 for it to launch an investigation,
even if there has been no formal complaint.

23

UNCLASSIFIED
-

------_ . . . -_ .. - ,
. .. _,
~

_......

.

__

_._._

_...

._---_.

•....-•..... _---_._ ..

_-_.~-

"."-

_-------_.. _.....

... .
~.,

FP0993

UNCLASSIFIED

3. (new) Each State Party shall ensure that the.authority
referred to in paragraph 1:

a) has the necessary powers and resources to
conduct the investigation, including the power to
.compel suspected perpetrators and witnesses to
appear before it,
b) is communicated the necessary information for
its investigation;
c) has access to any place where it is suspected that
a disappeared person is present.

24

UNCLASSIFIED

... "",.'.- ..

_

.. _

_

_..

. _..

.

_

_-_

_

__

.

_.. _.. ,".-

.

FP0994

UNCLASSIFIED

4. (former 12.6, complemented) Each State Party shall take
the necessary measures to pr~vent and punish acts of
such a kind as to inhibit the progress of investigations. It
shall ensure, particularly, that persons suspected of
having committed an enforced disappearance are ~ot in a
position to influence the progress of the investigations by
means of pressure or acts of intimidation or reprisal
against the complainant, the witnesses, the relatives of
the disappeared person, the defence counsel as well as
those participating in the investigation..
/

25

UNCLASSIFIED
---

- --- -

-----

FP0995

UNCLASSIFIED

"5. (new) The investigation pursuant to the present

article shall be conducted in conformity with
international principles for investigations on
human rights violations, torture, search of
disappeared persons, forensic examination and
identification.

26

UNCLASSIFIED
------

------

FP0996

UNCLASSIFIED

• Article 13 (modified)
1. For purposes of extradition between States Parties,
enforced disappearance shall be considered to be neither
a political offence, nor an offence related to a political
offence or an offence prompted by political motives.
Consequently, a request for extradition based on. .
enforced disappearance cannot be refused solely because
it concerns a political offence, an offence related to a
political offence or an offence prompted by political
motives.

27

UNCLASSIFIED
... --------

-

...

_.-

FP0997

UNCLASSIFIED

2. Enforced disappearance sh~ll automatically be inc~uded
among the extraditable offences in every extradition
treaty concluded between States. Parties before the entry
into force [CItthe present instrument}.
3. States Parties undertake to include the offence of
enforced disappearance among the extra~itable offences
in every extradition treaty to be concluded subsequently
between them.

28

UNCLASSIFIED

FP0998

UNCLASSIFIED

4. Ifa State Party which makes extradition conditional on
the existence of a treaty receives a request for extradition
from another State Party with which it has no extradition
treaty, it may consider [the present instrument] as the
legal basis for extradition in respect of enforced
disappearance.
5. Any State Party which does not make extradition
conditional on the existence of a treaty shall recognise the
offence of enforced disappearance as extraditable.

29

UNCLASSIFIED
~--'

--

FP0999

UNCLASSIFIED

6. Extradition shall, in all cases, be subject to the
conditions provided by the law of the requested State
.Party or by applicable extradition treaties, including,
inter alia, conditions in relation to the minimum penalty
requirement for extradition and the grounds upon which
the requested State Party may refuse extradition or
subject extradition to conditions.

"

30

UNCLASSIFIED
----- .. _--

.-

FP1000

UNCLASSIFIED

7. No provision [ofthejJresent instrument} shall be
interpreted as imposing an obligation on the requested
State Party to extradite if that State has serious grounds
to believe that the request was put forward for the
purpose of prosecuting or punishing a person on account
of his or her gender, race, religion, nationality, ethnic
origin or political opinions, o~ that to allow the request
would cause harm to that person for anyone of those
reasons.

31

UNCLASSIFIED

FP1001

UNCLASSIFIED

• A'rticle 14 (modified)
1. States Parties shall provide one another the greatest
measure of legal assistance in connection with any
criminal investigation or proceedings brought in respect of
enforced disappearance, including the supply of all
evidence at their disposal that are necessary for the
proceedings.
2. Such legal assistance is, subject to the conditions
provided by the domestic law o~ the requested State Party
or by applicable treaties on mutual legal assistance,
including, particularly, concerning tl;1e grounds on which
the requested State Party ~ay refuse to provide legal
. assistance or subject such assistance to conditions.
. 32
UNCLASSIFIED

.•..,..

,~.

,_ .." __

~._....

.

__. __.

..

..._

...•... ·v··

....•...

. .. ,. ,

"..

,,""-~._

"_ ,

FP1002

UNCLASSIFIED

•Article 15 (modified)
States Parties shall co-operate with one another and shall
provide one another the greatest measure of assistance
with a view to assisting victims of enforced
disappearance, and in sf?arching, locating and releasing
disappeared persons and, in the event of death, in their
exhumation, identification and restitution of their
•
remaIns.
. 33

UNCLASSIFIED
...

---_...

.

.

FP1003

UNCLASSIFIED

• Article 15 his (former 21)
1.. No State Party shall expel, return ("refouler") or
extradite a person to another State where there are
substantial grounds for believing that he/she would be in
danger of being subjected to an enforced disappearance.
2. For the purpose of determining whether there are such
grounds, the competent authorities shall take into .account
all releva~t considerations, including, where applicable,
the existence in the State concerned of a consistent pattern
of gross, flagrant or mass violations of human rights or of
humanitarian law.
34

UNCLASSIFIED
-~

..

-

_._-"

~_

.... -----

----_.

-

---_.

FP1004

UNCLASSIFIED

• Article 16 (reorganised and modified, see 16 his
below) National/egis/ation defines victim

1. Each State Party shall, under its law,
.' .a) indicate those officials who are authorised to order

deprivation of liberty;

b) establish the conditions under which such orders may
be given;

c) guarantee that any person deprived of liberty shall be
held solely in an officially recognised and controlled
place;

35

UNCLASSIFIED
_.. _.-_.- ......

_._----------.- -_ -_ ..

_

-

,.

__.. -. __

.- -.-

-

-

--_.•..

~...

-

.,

-

_..

..•. - •.... _-----_

.

FP1005

UNCLASSIFIED

d) guarantee access of the judicial authorities to places
of deprivation of liberty;
e) guarantee that any person deprived of liberty, in all
circumstances, shall have the right to bring
proceedings before a court which shall rule without
delay on the lawfulness of the deprivation of liberty
and order his or her release if that deprivation of liberty
is unlawful.

36

UNCLASSIFIED
--

. --.-

-

FP1006

UNCLASSIFIED

2. Each State Party shall compile and maintain one or
several official up-to-date registers ofpersons deprived
of liberty. The information contained in these registers
shall include at least the following :

a) the identity of the person deprived of liberty, .
b) the authority having decided the deprivation of liberty,
c) the authority controlling the deprivation of liberty,
d) the date and time of'admission in the place of detention
and the authority responsible for the place of detention,
e) the date and time of liberation or transfer to another place
of detention, the destination and authority in charge of
the transfer.
37

UNCLASSIFIED
--- .-' ._-

---- ----

- - -------.

~

__

...•..-. __._-_._-_._-_

.

• • • •_ _ •••• _....

•

• _

••••• _ . _ _ •

••••_

• __ • • •

~

•••• _

•• _._ ••

_ ~

__

••••••••• H • • • _ . __ ••

•••

FP1007

UNCLASSIFIED
B5

• Article 16 his I

1. Each State Party shall guarantee the person deprived of
liberty, his orh~r relatives, their legal representatives,
their counsel, and any person authorised by them, as
well as any person able to claim a legitimate interest
access, as a minimum, to the following information:

38

UNCLASSIFIED

FP1008

UNCLASSIFIED

a) the authority to which the person has been handed
over;
b) the authority having decided the deprivation of
liberty;
c) the authority controlling the person deprived of
liberty;
d) the whereabouts of the person deprived of liberty,
including in case of transfer;

e) date and place of release;
f) state of health and, in the event of death,
circumstances and causes of the death.
39

UNCLASSIFIED
.. -

--- - -- .. - -_. -_..

FP1009

UNCLASSIFIED

2. Appropriate measures shall be taken, where necessary,
to ensure the protection of the persons mentioned in
.paragraph. 1 as well as the persons participating in the
investigation against all ill-treatment; intimidation or any .
.sanction on the grounds ~f the search of information
concerning a person deprived of liberty.

3. (new) In order not to jeopardise the privacy of the
pers'ons concerned, the information transmitted pursuant
to paragraph 1 of the present article shall be adequate and
pertinent with respect to the purpose pursued and shall
not be used for other purposes than the search of the
person dep~ived of liberty.
40

UNCLASSIFIED

FP1010

UNCLASSIFIED

·Article.17·
Without pr~judice to consideration of the lawfulness of a
deprivation of liberty, States Parties shall guarantee to
the relatives of the person deprived of liberty or of a
disappeared person, their legal representatives, their
counsel and any person authorised by the person
deprived of liberty or the disappeared person or by
his/her relatives, as well as any other person able to
claim a legitimate' interest the right to a prompt and
effective remedy as a means of obtaining without delay
the information referred to article 16 bis. This right to a
remedy may not be suspended or restricted in any
circumstances.
41

UNCLASSIFIED

~

..... _ .. _..

. ....•_

__

_-_

_. __.._._._

_..

FP1011

UNCLASSIFIED

•Article. 18 (complemented)
Each State Party shall take the necessary measures to
ensure that the release of persons shall proceed in a
manner that allows reliable verification that they have
actually been released.. Each State Party shall also take
the necessary measures so that the physical integrity of .
all such persons and their ability to exercise fully their
rights are assured at the time of release, without
prejudice to the obligations to which such persons may
be subject in accordance with the law.

42

UNCLASSIFIED

FP1012

UNCLASSIFIED .

• Article 19
Each State Party shall take the necessary measures to
prevent and punish the following actions:
a)·

delaying or obstructing the remedy referred to in
article 17;

,b)

failure to the obligation to register every deprivation
.of liberty and registration of information which the
official responsible of the register knows or should
known to be inaccurate; .

43

UNCLASSIFIED

FP1013

UNCLASSIFIED

c)

refusal by an official to provide information on
the deprivation of liberty of a person, or the
provision of inaccurate information, even
though the legal conditions for this information
to be provided have been fulfilled.

44

UNCLASSIFIED

.................

",

~_._...

._. .__

,.__

.._._•.v._

. _..".._

_..

.

.-~._--

._._.

.

_ -_.. __.._

~

'--'--""-'." ,.._._.._- . _.

FP1014

UNCLASSIFIED

• Article 20 (complemented)
1.. Each State Party shall ensure that th~ training of law
enforcement personnel, civil or mili~ary, medical
personnel, public officials and other persons who may be
involved in the custody or treatment of any person
deprived of liberty shall include the necessary education
and information on the provisions [ofthe present
instrument] , in order to:
a) prevent' the involvement of these officials in enforced
disappearances;
45

UNCLASSIFIED
..

_.--_.-

-

.-_.

.-

FP1015

UNCLASSIFIED

'\

b) draw'attention to the importance of prevention and
investigations concerning enforced disappearances;
c) ensure that the ~rgent need to resolve cases of
enforced disappearance is acknowledged.

46

UNCLASSIFIED

........-._.. '...

.

_-_ ...•... -....

..•. _ - - - - -

- .•. _ - _ . __ ..

FP1016

UNCLASSIFIED

2. Each State shall prohibit orders or instructions
commanding, authorising or encouraging enforced
disappearance. Each State Party shall guarantee that a
person refusing to obey such order will not be subject
to sanction.

47

UNCLASSIFIED
--

-

---- -------

-

-- - --- ------...,"".

.

-..... ".........

....

_.~._

.. _..... ,..

"

FP1017

UNCLASSIFIED

3. Each State Party shall take the necessary measures to
ensure that the persons referred to in paragraph 1 who
have reasons to believe that act enforced disappearance
has occurred or is planned communicate the matter to
their superior authorities and, when necessary, to
competent authorities or 'organs with reviewing or
remedial power.

48

UNCLASSIFIED

FP1018

UNCLASSIFIED

• Article 21 (see 15 his)
B5

• Article 22 (modified and complemented)

1. For the purposes of [the present instrument}, "victim"
means the disappeared person and any natural person

who has suffered direct harm as a result of that
disappearance.

49

UNCLASSIFIED
-- ---- -_.-.. _,

_-_

_ _._------_

_ __.•....

_---_

-...• - ,_ ,_.. _....

...

---_. __

_-_ _

__ __.-•...__

,.- ..

_ _-_ .•.. _-_

__

__.

.

FP1019

UNCLASSIFIED

.

"

2. Each State Party shall take the necessary measures so
that any victim knows the truth concerning the
circumstances of the enforced disappearance and the
fate of the disappeared person. It shall, in particular,
take the necessary measures to search for, locate and
" release disappeared persons and, in the event of death,
return the "human remains.
3. Each State Party shall guarantee the right to obtain
prompt, fair and adequate reparation for the harm
caused to victims of enforced disappearance.

50

UNCLASSIFIED
---------- ---•....

- "..........

....•....•-

-",

_-_.....

.

__ ._....

.

'

,

_-_ .._..

..

_--_

_

_

_---_

__._

.

FP1020

UNCLASSIFIED

4. The right to obtain reparation referred to in
paragraph 3 includes integral compensation for
material andnon-~aterial damage. It may also
include, in particular:
a) restitution,
b) rehabilitation,
c) satisfaction,
d). restoration of honour and reputation.

51

UNCLASSIFIED
---------

FP1021

UNCLASSIFIED

5. Without prejudice to the obligation to continue the
investigation until the fate of the disappeared person is
elucidated, each State Party shall take the necessary
measures with regard to the legal situation of the
disappeared persons who's fate has not been elucidated
and of their relatives in· fields such as social protection,
financial matters, custody of children and property
rights. NEW PARAGRAPH

52

UNCLASSIFIED
-

-

-

FP1022

UNCLASSIFIED

• Article 23 (complemented)
1. Each State Party shall'take the necessary measures to
prevent and punish in a criminal court:

a) the abduction or appropriation of children victims of
enforced disappearance, children whose father or mother
is victim of enforced disappearance or children born
. during the detention of their disappeared mother;
b) the falsification or suppression of documents attesting to
the true identity of a child referred to in subparagraph
(a).
53

UNCLASSIFIED
--

------

FP1023

UNCLASSIFIED

2. Each State Party shall take the necessary measures to
search for and identify children referred to in
subparagraph (a) and (b).

-Article 24
State Parties grant each other assistance in the
search fOf, the identification and the location of children
referred to in article 23.

54

UNCLASSIFIED

FP1024

UNCLASSIFIED

• Article 25
1. When a child who has been abducted or appropriated in
the circumstances described'in article 23, paragraph (a),
is found on the territory of a State party, the question of
the child's return to his or her family of origin stall be
resolved either under the domestic law of that State
party, 9r under the bilateral or multilateral agreement
which that State has entered into with another State in
which the family of origin live~.

55

UNCLASSIFIED

........................

'

_-_

_

'

~

.

FP1025

UNCLASSIFIED

2.

In all cases, the 'best interests of the child are a
primary consideration, and a child who is capable of
judgement shall have the right to express his or her
views freely and to have them given due weight in the
light of his or her age and level of,maturity.

56

UNCLASSIFIED
--

FP1026

UNCLASSIFIED

Part II

Article 0

(new)
1. A [monitoring body]. shall ensure the impJementatiqn
.
of the \present instrument] and the respect by State
Parties of their commitments.

2. While exercising their mandate, the members of the
[monitoring body] shall be entitled to privileges and
immunities as laid down in the Convention on
~rivileges and Immunities of the United Nations.

3. Each State Party shall undertake to co-operate with
the [monitoring body] and to grant assistance to its
members in the exercise of their mandate.
57
UNCLASSIFIED

.

~

_...

.--._-_

_.... ,,_.--_.,-,..

.

_-_. __ _---.-._ --_

__ .

__.

...

_. __..__ .. .. _.
"

__ __

.,

---_

-.

__ __
..

_-_

_.... .

_._ ..

FP1027

UNCLASSIFIED

• Article II-A (modified)
1. Each State Party shall submit to [the mOlJitoring body1,
through the Secretary-General of t1).e United Nations, a
report on the measures taken to give effect to its
undertakings under [the present instrument], within one
year after the entry into force [of the present
instrument] in respect of the State concerned.

2. The Secretary-General of the United Nations shall
transmit the reports to all States Parties.
;

58

UNCLASSIFIED

......

_--_.............• - ..----_ ..

FP1028

UNCLASSIFIED

3. Each report shall be considered by [the monitoring
body], which may make such comments,
observations, recommendations and warnings as it
considers appropriate. The State Party concerned shall
receive communication of such comments,
observations, recommendations and warnings, to
which that State may respond, on its own initiative or
at the request [ofthe monitoring body}.

59

UNCLASSIFIED

.. .. --_._- .

-,

.... _._.._...•..... _..._-_._-_....

..... -..

__..._ _

... ....

"~.

__._-_.

, ..

_._".. _--_ .._

_--_. __ .-

_"_

.

FP1029

UNCLASSIFIED

• Article II-B (modified)
1. Each State P~rty or the relatives of a disappeared
person, their legal representatives, their counsel, and
any person authorised by them, as well as any person
able to claim a legitimate interest may submit a request
to [the monitoring body] to seek and fmd a person who
has disappeared within the meaning of article 1.

60

UNCLASSIFIED

FP1030

UNCLASSIFIED

2. Should [the .monitoring body] consider that a request
paragraph 1 is not manifestly
submitted under
.
unfounded, that it does not constitute an abuse of the
right of submission and that it is not incompatible with
.the provisions [of the present instrument] [the
monitoring body] shall request any State Party to
provide information on the situation of that person,
within a time-limit set by [the monitoring body].

61

UNCLASSIFIED
--

-••

'

.H'H'.

,~ ••••• _ ••••• '

, ••••••

. _ • • _, __ •• _,, _ _

••••••• _ ••••

••••• _

• • • _ . _ _ ••• _ •• _ • • _. _ _ •• _ . _ _ •• _ . _ _

•••••••••• _ - • • • -

H •• _ •• _

H •••• _

, ••

_ ••••••

••

__ ._.~._•• _ _ .' •• ,

H •• _ . _ •••• '

FP1031

UNCLASSIFIED

3. In the light of the response provided by the State Party
c~ncemed in accordance with paragraph 2,
[themonitoring body] shall make a recommendation or
give a warning to that State. [The monitoring body] may
also instruct that State to take appropriate. measures and to
report to it on th9se measures, within a time-limit set by
[the monitoring body],·

62

UNCLASSIFIED

FP1032

UNCLASSIFIED .

4.
[The monitoring body] shall establish its
conclusions and forward them to any State Party which
has been
requested to provide information and to the
author of the
request referred to in paragraph 1.
5. The procedure under this article is confidential.

63

UNCLASSIFIED

FP1033

UNCLASSIFIED

• Article II-C (modified)
1. If [the monitoring body] considers that a visit to the
tenitory of a State Party under whose jurisdiction a
disappeared.person could be is· essential in order to
respond to the request submitted to it in accordance
with Article H-B, [the monitoring body] may request
one or more of its members to undertake an
investigation mission and to report back without delay.
-The member or·members [of. the monitoring body]
conducting the mission may be accompanied if
necessary by interpreters, secretaries and experts. No
member of the dele·gation, with the exception of the I
nterpreters, may be a national of the State .Party"to
which the visit is to be made. 64

UNCLASSIFIED

... _•....

_

_--_.........

.

_---,,-_ _---_

,.--.----_.

-.-.-..---

__

.~.

FP1034

UNCLASSIFIED

2. [The monitoring body] shall notify the State Party

concerned in writing of its intention to organise an
investigation mission, indicating the composition of the
delegation. The State Party shall inform [the 10
monitoring body] without delay of its agreement or
opposition to the investigation mission in the territory
over which it has jurisdiction.

65

UNCLASSIFIED

"-'-'"

.. __....•..... _"

"_._~-_

.....• ,,

~

__..

__

._. __.-

_

_._ ..

•.• _ . . . . . . .

. ••. _ _ •

__ . • • . • • ,..

•

".".

'--'-""'0

FP1035

UNCLASSIFIED

3. If the State Party agrees to the investigation mission, it
shall provide [the monitoring body] with all the
necessary facilities to enable the mission to be carried
out. [The monitoring body] may, inter alia:
a) make such visits as it may consider necessary to
search for and find the person who. has disappeared;

b) make contact freely with any person whom it believes
may provide useful information on the fate of the person
who has disappeared;
c) have the person who has allegedly disappeared
brought to it and discuss with "him or her in private. 66
UNCLASSIFIED
- ---••

••

.... _.......

• • • • • • • _ _ •••

•

•

•••

• • " . _ ••

••, . " . _

• • • ' __ ' _ _ ' .

•••••••• _ _

••••• H .......

... _ _...

.._-----_.

__.__

_.•.... _. __.._.. -

"

--_

_

.

FP1036

UNCLASSIFIED

4. [The monitoring body] shall inform the following of

the findings of the investigation mission:
a) the State Party in whose territory the investigation,
mission' was carried out;
b) the author of the request referred to in paragraph 1 of
article II-B.
5. The procedure under this article is confidential.

67

UNCLASSIFIED
------

..........._-_..

.

__.-

__

.. __.

_~~-,

~.---._-_

_ _--_

_...

... _.-.-._

.

[The monitoring body] considers a communication
presented by the relatives of a disappeared person,

their legal representatives, their counsel, and anyperson authorised by them, as well as any person able
to claim a legitimate interest alleging grave breaches
in the implementation of the commitments taken
l:1nder the [present instrument} unless
.
a) the communication lacks sufficient motivation or is
obviously unfounded;
b) the same matter is being examined under another
procedure of international investigation or settlement;
c) the complainant has not exhausted all available
effective domestic remedies.
68
.

.

UNCLASSIFIED

B5

FP1037

FlED

FP1038

UNCLASSIFIED

2. If the [the monitoring body] assesses that the
communic~tion fulfil~ the conditions under paragraph 1,
[the monitoring body1 transmits the communication to the
Stat~ Party concerned and requests this State Party to
provio.e observations and comments within a time-limit set
by the [monitoring body}.
3. On the basis of the answer of the State Party, [the
monitoring body] may decide:
,a) to close the matter ,of the communication;
b) to continue its examination;
c) to make a recommendation to the State Party.
69

UNCLASSIFIED

....

__

_

__ ..-.-,

"

_. __._..

... _----_._."

"

,.~

_---_

_---_

_-----.....

_ _ .

FP1039

UNCLASSIFIED

4. The procedure under the present article comes to an
end when the [monitoring body] communicates the
conclusions of its investigation to the State Party
and to the author of-the communication.
5. The procedure under this article is confidential. -

70

UNCLASSIFIED

..

_ __.. _.. .. _-----_.- ..
;

~,._

.. __

__ .. _.._._-_
.~

_--_

_._...

-_ ..•.......__ .

-'

....•........

FP1040

UNCLASSIFIED

·ArticleII-C fer (new)
If the [monitoring body} receiv~s reliable information
which appears to it to contain ~ell-founded indication
that enforced disappearance is being practised. in a
systematic or general manner in the territory of a State
Party, the [monitoring body] may ·seize the Secretary
General of the United Nations, after having enquired with
the State Party concerned about any pertinent information
and the measures taken to put an end immediately to such
practises.

Article II-D (integrated in II-O§2)
71

UNCLASSIFIED

.. _

_..

.

_-_._

_-- .. _.-._-_._ .._...•-_

_.._--_

""--"-

-. _._--_...

.'

.. -.--...

.

-_ .._----_.

__ ..

,

_-_

_

_..__

"

__ .

FP1041

UNCLASSIFIED

• Article II-E (complemented)

1. [The monitoring body] has competence solely in
respect of deprivations of liberty which commenced
after the entry into force [ofthis instrument}.·
2. Should a State become party to [this instrument}

after its entry into force, the obligations ofthat State
towards [the monitoring body] concern only·
deprivations of liberty which commenced after the .
entry into force [ofthis instrument] in respect of the
State concerned.
72

UNCLASSIFIED
.------

•

•

•

• • • _ ••••• _ " H • •

•• '

•• _

•• _ _ . _ . . . . .

•

• • • • • • _ ••• _

•• _ . . .

• •••••••• _ _ • _ _ ._ • • • • • _ , • •

• _. ~ •• ••••• H ••• _ . _ .

-

. - ••••• - - - - . . .

•

• • • • _ . __ . '

• • • __ ._ •• _ . . . .

• •• _ •• _ . - . - . - . . . . .- . __ •••• _ .

FP1042

UNCLASSIFIED

3. (new) Each State Party may at any tillle
'declare that, in its own respect, it recognises
that the [monitoring body} has cOlllpetence in
respect of enforced disappearances which.
commenced before entry into force of the
[present instrument}.

73

UNCLASSIFIED
.

--_.- - - '

.-

-------

FP1043

UNCLASSIFIED
B5

• Article II-F (modified)

1. The [monitoring body} shall submit an almual report on,
its activities [under the present instrument} to the States
Parties and to the General A~sembly of the United - ~
Nations.
2. (new) If, in the procedures under articles II-B and II-C

bis, a State Party concerned obviously refuses to
co-operate or if the procedures yield to no effective
result, the [monitoring body} may decide to make an
observation public, with regard to the matter or the
situation at stake.
74
.

.

I

UNCLASSIFIED

.... ---"._...

... _-----

-

---._

~_._...

.

__

..

_...

. --.-

"

.

FP1044

UNCLASSIFIED

3. (new) The State Party concerned shall be informed in
advance of the publication of an observation under
paragraph 2 ofthe present article. This observation
shall be published together with the ans~ers,
comments or observations tr~nsmitted by the State
Party within the time-limit set by the [monitoring
body}.

75

UNCLASSIFIED

"

_

.•••• _~ __

••..

._..

• ..

.".__ ". ",, __• _ _

,_•• _ _._

_ __' _ _ "4""

•• , ••••,

,._,..

, ••••••__••_ .•••.•••_ . . • _ .•••• - - - - - . -

...• -_•• _ _ ._.__ ••

~

•••_ - _ . _

_ •••••_--_

.

FP1045

UNCLASSIFIED

Part III
-Article 111-0 (former 2.2)
{The present instrument] is without prejudice to any other
international instrument or national legislation that does
or may contain provisions of broader application.
-Article 111-0 his (new)
Personal data, including medical or gene.tic data, which
are transmitted in the framework of the search of a
disappeared person shall not be used for other purposes
than that of the search o'f the disappeared person.
76
UNCLASSIFIED
_...

- - -_. _.--------------------- ---- -

FP1046

UNCLASSIFIED

• Article III-A
1. [Thepresent instrument] is open for signature by [...].
2. [the present instrument] is subject to ratification. .
-,

Instru~ents

of ratification shall be deposited with the
Secretary-General of the United Nations.

3. [The present instrument] is open to accession by [...].
Accession shall be effected by the deposit of an
instrument of accession with the Secretary-General of
the United Nations.
77

UNCLASSIFIED
.. ._

"

- .. _

~

_.. -

_._.. _-

-

--_._. --- ._---.._

_--_._

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.

..... -........

...

~

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..•..._---_

-.- _-_.-

"

_

,.

-_.-

_.

FP1047

UNCLASSIFIED

• Article III-B
1. [The present instrument} shall enter into force on the t

hirtieth day after the date of deposit of the [Xth]
instrument of ratification or acces·sion.
2. For each State ratifying [the present instrument] or"
acceding to it after the deposit of the [Xth] instrument
of ratification or accession, [the present instrument]
shall enter into force on the thirtieth day after the date
of deposit of its own instrument of ratification ~r
•
acceSSIon.
78

UNCLASSIFIED

•••• ~

_ • • . • • , 'H'

_.........

• ••.• __ .• __ ..

•.

• __ ,

__0••••_.

•• " . __ •• _ ~ . . .

•••••• H' ••• _ . . .

• •••••.••••_ ..• __ ....•..

. .••__•

••. _ ...•... _ •••••__ •• _

.. '

..•. H._._._ .. •

••....•.••._ _ .

• .•.__ .• _ .•

FP1048

UNCLASSIFIED

-Article III-C
.The Secretary-General of the United Nati~rIs shall inform
all States Members of the United Nations and all States
which have signed [ the present instrument} or acceded to
it of the following:
a) Signatures, ratifications and accessions under article
III-A;

b) The date of entry into .force of [the present instrument]
under article III-B.
,

79

UNCLASSIFIED
-

-

_. -

- .._-------_.. - -.....

_---_

__..•

- .,.•......_.._..

,

,

..

FP1049

UNCLASSIFIED

-Article III-D
The provisions of [the present instrument} shall apply,
without limitation or exception, to all parts of federal
States.
.
-Article III-D his (new)

.1. Any State, upon signature, ratification or accession,
may declare that [the present instrument] will be
extended to any territory for which it is responsible
with regard to international relations. Such a
declaration will take effect when [the present .
instrument] enters into force for the State concerned.
80

UNCLASSIFIED

_. __

. .

_.._......

.

_--_._._ ........•..•_-_._ _---_

_-.-

, ..

_---_

_ _--_.
•...

---._

_. __..-._ ...•. -_
"

_-_

---_..

",

-._

_-~_

-.. ,--_..__ ..

..•....

,

.._ .

FP1050

UNCLASSIFIED

2. At any time, such an extension may be notified to the .
Secretary General of the United Nations and will take.
effect (...) days after it has heen received by the Secretary
General.
•

Article III-E (integrated in 1 bis, paragraph 2)

81

UNCLASSIFIED
--- ----- ---- - .
.

... _.. _ __

.

_--_.... .•...._--_._,

_-_ _ --_.__._--_

_--_ __.._-

__

--_._-_...

.._---_

...---.

_

~

----__.....• -._......

_. -...

_-_

_--_.-

FP1051

UNCLASSIFIED

-Article III-F
[The present instrument] is without prejudice to the
provisions of international humanitarian law, including
the obligatio.us of the High Contracting Parties to the
four Geneva Conventions of 12 August 1949 and the
Additional Protocols thereto of 8 June 1977, or the
option available to any State to authorise the
International Committee of the Red Cross to visit places
of detention in cases for which international
humanitarian law does not provide.

82

UNCLASSIFIED
---...... _-_._.-

_---

_'.. ----

FP1052

UNCLASSIFIED

-Article III-G.

Any State Party to [the present instrument] may propose
an amendment and file· it with the Secretary-General of
the United Nations. The Secretary-General shall
thereupon communicate.the proposed amendment to the
States Parties to [the present instrument] with a request
that they notify him or her whether they favour a
conference of States Parties for the purpose of considering
and voting upon the proposal.

83

UNCLASSIFIED

....-

-.. '

__

-

_--_

_,,---.--------_

__ ..•_...........

.

_

_..-

.....•.

--_ - _

_-------_.,.--_ •.... _

-._

__

_...

...•.-

FP1053

UNCLASSIFIED

In the event that within four months from the date of
such communication at least'one third of the States
Parties favours. such a conference, the Secretary-'General
shall convene the conference under the auspices ofthe
United Nations. Any amendment adopted by a majority
of two thirds of the States Parties present and voting at
the conference shall be submitted by the SecretaryGeneral to all the States Parties for acceptance

84

UNCLASSIFIED

.-_.._-_.'.

.

_---,.

...

_ __._ -_.•._--- _-_.. _ -.. -

_._-_. __

-.---.-.-...

.

_...

..

.

_

_.-."

-_

_

.

FP1054

UNCLASSIFIED

2. An amendment adopted in accordance with paragraph
1 of this article shall enter into force when two thirds
of the State Parties to [the present instrument} have
accepted it in ac~ordance with their respective
constitutional processes.
3. When amendments enter into force, they shall be
binding on those States Parties, which have accepted
them, other States Parties still being bound by the
provisions of [the present instrument] and any earlier
amendments which they have accepted.
85

UNCLASSIFIED
------- ----.-

_-_

__

__ .

., ..•.._-----_... .

_-_ .. _ _------_ -_._-

""."--_ .. _.. _.",

-._.....

.

_-----_

_ _-----_

_., ,_..-.

--_

---_._ ..........•.•..

_

__

__

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'

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FP1055

UNCLASSIFIED

• Article III-H
1. [The present ~nstrumentJ, of which the Arabic,
Chinese, English, French, Russian and Spanish texts
are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall
transmit certified copies of [the present instrument}
. to all States.

86

UNCLASSIFIED

.

. ..

.'

Report ofthe sessIOnal workmg group on the

UNCLA'S8IFIED
.

Page 1 of33 .

RELEASED IN PART
B5

UNITED
NATIONS
(

'~
\~

E

Distr.
GENERAL

Economic and Social
Council

E/CN.4/Sub.2/1998/19
19 August 1998

ENGLISH
Original: ENGLISH/FRENCH

COMMISSION ON HUMAN RIGHTS
Sub·Commission on Prevention of
Discrimination and Protection
of Minorities
Fiftieth session
Item 9 of the agenda
Working Group on the Administration of Justice

THE ADMINISTRATION OF JUSTICE AND HUMAN RIGHTS

(

Report of the sessional working group on the
administration of iustice
Chairman-Rapporteur: Mr. Louis Jomet
CONTENTS

Introduction 1 ~ 8
1. FOLLOW-up MEASURES TO THE DECLARATION ON THE PROTECTION OF ALL
PERSONS FROM ENFORCED DISAPPEARANCE 9 - 64

II. ISSUES RELATED
- 76
. TO THE DEPRIVATION OF THE RIGHT TO LIFE 65
.
III. HABEAS CORPUS AS A NON-DEROGABLE RIGHT 77 - 79
IV. M~ASURES TO BE TAKEN TO GIVE FULL EFFECT TO THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE 80 - 81
V. JUVENILE JUSTICE 82 - 84
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP1056

Report oft.he sessional working groUp~<;LASSIFIED

Page 2 of33

VI. PRIVATIZATION OF PRISONS 85 - 92

(

VII. RECOGNITION OF GROSS AND MASSIVE VIOLATIQNS OF HUMAN RIGHTS
PERPETRATED ON THE ORDERS OF GOVERNMENTS OR SANCTIONED BY THEM AS AN
INTERNATIONAL CRIME 93
VIII. PROVISIONAL AGENDA FOR THE NEXT SESSION 94 - 95
IX. ADOPTION OF THE REPORT OF THE WORKING GROUP TO THE SUB-COMMISSlQN 96

(
Annex; Draft international convention on the protection of all persons from forced disappearance
IntroductiQU
1. In accordance with the decision taken by the Sub-Commission on 4 August 1998) a sessional working
group of the Sub-Commission on the administration ofjustice held its frrst meeting on 4 August 1998.
The following experts were appointed as members ofthe working group on 4 August 1998: Mr. Hector
Fix zamudio (Latin America), Mr. Rajendra Kalidas Wimala Goonesekere (Asia), Mr. Louis Joinet
(Western European and other States), Mr. Joseph Oloka-Onyango (Africa) and Mr. Teimuraz Ramishvilf
(Eastern Europe).
2. The working group held three public meetings on 4, 7 ~d 17 August, and two additional meetings,
also public but without interpretation, on 11 and 12 August 1998.
(

3. A representative ofthe Office ofthe High Commissioner for Human Rights opened the session of the
working group.
4. The worki~g group designated Mr. Louis Joinet as Chairman-Rapporteur for its 1998 session.

5. The following members of the SUb-Commission not members of the working group also took part in
the discussion: Mr. Alfonso Martinez (1st, 2nd and 5th meetings), Mr. Eide (l st meeting), Mr. Guisse .
(Ist meeting), Ms. Hampson (1st and 2nd meetings). Mr. Kartashkin (2nd and 5th meetings), Mr. Park
(2nd and 5th meetings), Mr. Sik Yuen (2nd and 5th meetings), Mr. Sorabjee (1st meeting), Ms. Warzazi
(Ist and 2nd meetings), Mr. David Weissbrodt (1st) 2nd; 3rd; 4th and 5th meetings), Mr. Yokota (2nd
meeting) and Mr. Zhong (lst, 2nd and 5th meetings).
6. The following non-governmental organizations also made statements: Amnesty Intema~onal (2nd
meeting) and the International Commission ofJurists (2nd and 5th meetings).
7. The working group had before it the following documents relating to its provisional agenda:
Report ofthe sessional working group on the administration ofjustice on its 1997 session
(E/CN.4/Sub.2/1997/21);
Expanded working paper submitted by Mr. Stanislav Chemichenko in accordance with decision
1996/116 ofthe Sub-Commission on recognition of gross and massive violations ofhuman rights
perpetrated on the orders of Governments or sanctioned by them as an international crime
(E/CN.4/Sub.2/1997/29);

UNCLASSIFIED

FP1057

Report of the sessional working grouJ.JN.&;LASSIFIED

Page 3 of33

Working paper submitted by Mr. Miguel Alfonso Martinez concerning the study of the issue of the
privatization of prisons (E/CN.4/Sub.2/1991/56);
(

Outline prepared by Ms. Claire Paney pursuant to Sub·Commission decision 1992/1 07 on the possible
utility, scope and structure of a special study on the issue of privatization of prisons
(BieN A/Sub.2/1993/2l);
Note by the secretariat on juvenile justice (BlCN .4/Sub.211996/WG.lICRP.1);
Conference room paper prepared by the secretariat on habeas corpus, amparo and similar procedures as
a non~derogable right (EI.CN.4/Sub.2/1998/WG.l/CRP.l);
Note by the secretariat on follow-up measures to the Declaration on the Protection ofAll Persons from
Enforced Disappearance containing the text of a draft convention on the subject
(BlCN.4/Sub.21l 998/WG. l/CRP.2);
Conference room paper prepared by Mr. El-Hadji Guisse on issues related to the deprivation of the right
to life (E/CN.4/Sub.2/1998/WG.lICRP.3).
Adoption ofthe agenda
8. At its 1st meeting, the working group considered the provisional agenda. At the suggestion of the
Chairman-Rapporteur, based on fonnal and informal consultations with other members of the working
group, the working group decided to adopt the following agenda:

1. Follow-up measures to the Declaration on the Protection ofall Persons from Enforced Disappearance.

(

2. Issues related to the deprivation of the right to life, with special reference to:
(a) Imposition ofthe death penalty on persons ofless than 18 years of age and on the mentally and
physically disabled;
.
(b) Summary, arbitrary and extrajudicial executions.
3. Habeas corpus as a non-derogable right [and as one of the requirements for the right to a fair trial].
4. Measures to be taken to give full effect to the Convention on the Prevention and Punishment ofthe
Crime of Genocide.
5. Juvenile justice.
6. Privatization of prisons.
7. Recognition of gross and massive violations of human rights perpetrated on the orders of
Governments or sanctioned by them as an international crime.
8. Provisional agenda for the next session.
9: Adoption of the report of the working group to the Sub-Commission.
1. FOLLOW·UP MEASURES TO TIlE DECLARATION ON THE PROTECTION

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Page 4 of33

OF ALL PERSONS FROM ENFORCED DISAPPEARANCE
(

9. For the benefit ofnewly~elected members ofthe Sub-Commission and those participating in the work
of the working group fc,>r the first time, the Chainnan-Rapporteur, Mr. Joinet, went over the background
to the preliminary draft international convention for the protection of all persons against forced
disappearance (ElCNA/Sub.2/1998/WG.l/CRP.2) (see annex).
10. The drafting ofa convention on forced disappearance was an initiative dating from the 1980s. The
Sub-Commission had first asked the working group to prepare a draft declaration on enforced
disappearance. After l;leing submitted to the Sub-Commission and then to the Commission on Hwnan
Rights and the Economic and Social Council, the draft had been adopted by the General Assembly in its
resolution 47/133 of 18 December 1992 entitled "Declaration on the Protection of All Persons from
Enforced Disappearance". In June 1994, the General Assembly of the Organization of American States
had itself adopted the Inter-American Convention on Forced Disappearance ofPersons. The persistence
of the prac~ce ofenforced disappearance, its complexity and its extreme gravity as a crime meant the
need for a universal convention on the question had taken on increasing importance, not to say urgency.

,

(

11. At the request of the working group, Mr. Joinet had submitted to it, at its forty-eighth session, a
preliminary draft convention in the fonn ofa working paper. However, no text had been proposed for
the part concerning the monitoring mechanism, as the Chairman-Rapporteur had taken the view that l
given the importance ofthe question, it would be preferable to wait for the working group itselfto
consider the various options and decide on the main outline. As a result, the working group bad
considered only the fIrst part of the preliminary draft and decided to continue consideration of the
remaining part at its forty-ninth session (see E/CN.4/Sub.2/l996/16). The working group also requested
Mr. Iomet to make the necessary contacts to detennine the conditions under which the Centre for
Human Rights could organize a meeting of experts on the preliminary draft. Failing that, the Rapporteur
would contact Governments and non-governmental organizations with a view to organizing such a
meeting.
12. As a number of the difficulties encountered would have prevented the holding ofsuch a meeting
within a reasonable time, the Chainnan-Rapporteur had approached Amnesty International and the
International Commission of Jurists, which had kindly agreed to organize the meeting. The meeting had
been held on 16 and 17 June 1996 with the Chairman-Rapporteur attending, together with the persons
responsible for the thematic procedures concerned, namely, the Special Rapporteur on the question of
torture, Mr. Nigel Rodley (written contribution); the Special Rapporteur on extrajudicial, summary or
arbitrary executions, Mr. Bacre Ndiaye; ~e Vice-Chainnan of the Working Group on Arbitrary
Detention, Mr. Roberto Garret6n; and a member of the secretariat of the Working Group on Enforced or
Involun,tary Disappearances. The meeting had also been attended by a representative of the International.
Committee of the Red Cross (JCRC) and experts who had taken part in the drafting ofllie InterAmerican Convention on Forced Disappearance of Persons. The short time available for the meeting
meant that not all the preliminary draft could be considered.
13. At its forty-ninth session, the working group was infonned by the Chainnan-Rapporteur ofthe
difficulties encountered and it was decided to postpone consideration ofthe preliminary draft until the
working group's fiftieth session.
14. In November 1997, a meeting on the preliminary draft convention, organized by Amnesty
International, the Interriational Commission of Jurists, the Latin American Federation of Associations of
Relatives ofDisappeared Detainees (FEDEFAM), and the International Service for Hwnan Rights, had,
been held in Geneva and attended by the Chainnan-Rapporteur. In addition to the non-governmental
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organizations invited, and with the Chairman-Rapporteur of the working group, the meeting had been
attended by a member of the Working Group on Enforced or Involuntary Disappearances (Mr. Jonas
Foli), the Special Rapporteur on the question of torture, the Special Rapporteur on extrajudicial,
summary or arbitrary executions, representatives ofICRC and experts who, in the past, had taken part in
the drafting of the Inter-American Convention on Forced Disappearance of Persons.
15. The Chairman-Rapporteur recalled that the preliminary draft submitted to the w'orking group at the
current session was based largely on the Declaration on the Protection ofAll Persons From Enforced
Disappearance and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, particularly as far as the monitoring mechanism was concerned. Particular care had been
taken to ensure that the text of the preliminary draft departed from the wording of the Declaration and
the Convention only to take account of the special nature - which had often been emphasized,
particularly by the Working Group on Enforced or Involuntary Disappearances -of the practice of
enforced disappearance in the light of innovative proposals intended mainly to respond to the
international considerations involved in such protection. Mr: Joinet explained that, in preparing the
preliminary draft, he had also taken into consideration: (a) the International Covenant on Civil and
Political Rights; (b) the Convention on the Elimination ofAll Fonus ofDiscrimination against Women;
(c) the Convention on the Rights of the Child; (d) the Convention on the Prevention and Punishment of
the Crime of Genocide; (e) the Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity; (f) the Convention relating to the Status of Refugees; (g) the
Code ofConduct for Law Enforcement Officials; (h) the Body ofPrinciples for the Protection of All
Persons Under Any Form of Detention or Imprisonment; (i) the draft optional. protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 8
(3) (E/CN.4/1998/42, annex ll); and (j) at regional level, the Inter-American Convention on Forced
Dis!lppearance of Persons, adopted by the Organization of American States in June 1994.

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Preliminary draft ofthe international convention on the protection of all persons from forced
disappearance
16. The Chairman-Rapporteur suggested that the working group should first take up the part of the draft
convention which bad not yet been considered, concerning the structure, membership and functioning of
an implementation and monitoring committee. In view of the presence of a number of newly elected
members of the Sub-Commission, the group then decided to re-examine the first part ofthe preliminary
draft by holding additional meetings, which would be public but without interpretation, and to use the
second reading to ensure consistency of the substance and, in partiCUlar, of the terms used, in the
English, French and Spanish versions of that part of the text. The general comments and amendments
which produced a consensus at those meetings concerned the following points:
General comments
17. Mr. Weissbrodt expressed concern at the increasing number of reporting procedures of which this
draft convention provided an additional one. He mentioned that States already had too many reporting
obligations and were considering consolidating treaty reporting obligations rather than focusing on the
establishment ofnew reporting mechanisms. Mr. Weissbrodt also expressed his concern with regard to
the means by which the Commission on Human Rights was going to take the draft convention forward
in the light of the large number of new drafting exercises it had already been entrusted with, and that it
might therefore be useful to have an indication as to whether the Sub~Commission would be ready to
undertake the drafting of the convention.

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~8. With reference to the next steps to be taken at Commission level, Mr. Sang Yong Park wondered
whether the view of Governments, other treaty bodies and intergovernmental organizations should be

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sought. Mr. Zhong Shukong added fIrstly that draft conventions were a very serious undertaking and
would be legally binding and therefore the views of all Member States should be solicited and secondly
that the draft convention should now be transmitted to the Commission on Human Rights for comments
by member States and relevant intergovernmental and non-governmental organizations. The ChainnanRapporteur agreed with Mr. Zhong Shukong. He confioned that States would ofcourse be consulted, but
on the following basis; if the Sub-Commission approved in plenary the preliminary draft adopted by the
working group~ it could decide to transmit it to the Commission on Human Rigl,tts for consideration. The
Commission would then itselfconsult Governments, in accordance with its usual practice. That would
be the way in which communication would take place, in accordance with the wish expressed by Mr.
Zhong Shukong.
Substance/general comments '" The text of the draft convention as adopted appears in the annex.•
19. In order to ensure consistency of the term "forced disappearance" referred to throughout the text of
the draft convention, it was suggested that the wording of the title be changed from "enforced
.
disappearance" to "forced disappearance". Mr. Joinet pointed out that the title of the preliminary draft
had been chosen to ensure consistency with the terminology used in the Declaration on the Protection of
All Persons from Enforced Disappearance, as well as in the Inter-American Convention on Forced
Disappearance of Persons.
20. The Chainnan-Rapporteur, after verifying the tems used in the Declaration on the Protection of All
Persons from Enforced Disappearance, noted the use of the words "crime" in the French version,
"offence" in the English version and "delitQ." in the Spanish version. A number of speakers suggested

that "crime" should be used in all three versions, while others proposed the term "infraction criminelle"
in the French version, or "delito" or "crimen de lesa humanidad" in the Spanish version. The ChainnanRapporteur suggested keeping to the tenninology of the Declaration so as to facilitate the adoption of the
draft convention by the Commission on Human Rights.

Preamble
21. Mr. Sik Yuen proposed that the words "offence to" should be replaced by "outrage to".... AU the
proposals referred to in this section were adopted by the working group by consensus.*

Article 1
22. Mr. Joinet proposed th~t the words "especiallY with regard to forced disappearances perpetrated by
groups or individuals other than those refen:ed to in paragraph 1 oftbis articIe f ' should be inserted at the
end ofparagraph 2.

Article 2
23. Ms. Hampson proposed inserting after the words "the offence of forced disappearance", the words

"or of any constituent element of the offence", and inserting the following sentence after the word~
"shall be punished"; "The perpetrators or other participants in a constituent element ofthe offence, as
defined in article 1 of the Convention should be charged with a forced disappearance where they knew
or ought to have known that the offence was about to be or was in the process ofbeing committed:."
24. In order to ensure consistency between the languages, it was suggested that in article 2 (b), the word
"association" be replaced with the word "coHusion" in the English version.
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Article 3

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25. Ms. Hampson suggested that current article 3 be renumbered article 3 (1) and new article 3 (2)
inserted to read as foJlows: "Where persons are suspected of having perpetrated or participated in an
offence, as defined in articles 1 and 2, they should be charged with a crime against humanity where they
knew or ought to have known that this act was ,part of a systematic or widespread practice of forced
disappearances, however limited the character of their participation."

Article 5
26. Ms. Hampson proposed inserting in paragraph I, line 3, after the words "in article 1 of this
Convention" the words /land to define a crime against humanity, as defined in article 3 ofthis
Convention, as a separate offence". She also suggested replacing the words "its extreme gravity" with
the words "their extreme gravity".
27. Ms. Hampson suggested deleting paragraph 3.

Article 6
28. In paragraph 1 (b), Ms. Hampson proposed deleting the words "and if any State does not proceed to
extradite them/l and inserting after the words /I where the offence took place" the words "unless the State
extradites or transfers them to an international criminal tribunal/l.
Article 7

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29. In paragraph 1 Ms. Hampson suggested inserting, after the words "a person suspected ofhaving
committed" the words "a forced disappearance or".
30. In paragraph 1, it was suggested that "continued" should be inserted after th~ words "necessary
measures to ensure theil, and the words "in the tenitory" after the, words "of that person".

Article 9
31. In paragraph 3, Mr. Joinet suggested that the word "conclude" be deleted and replaced with the word
'1rnow" and the words "might be committed" be replaced with the words "was about to be committed".
Article 10
32. Mr. Joinet suggested repiacing the words "without prejudice" in paragraph 2 by "subject".

33. In paragraph 3. Mr. Joinet suggested inserting after the words /Ifrom criminal responsibility" the
words "including where" and deleting the words "this provision shall be applied even if'.

Article 11
34. Ms. Hampson suggested that paragraph 1 end after the words "investigated by that authority" and
paragraph 2 begin with the words "Whenever there are grounds to believe" and that the remaining
paragraphs be renumbered accordingly.
Article 12

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35. Mr. Joinet proposed that, in the French version ofparagraph 5, the word "parties" should be inserted
after "Les Etats" and "punissable d'extradition" should be replaced by "susceptible d'extradition".
Article 15
36. Mr. loinet proposed replaCing "Aucun Etat" in paragraph 1 by "Aucun .IDa! partie" and inserting the
word "Party" after the words "No State" in the English version.
37. Ms. Hampson suggested inserting the words "or any other serious human rights violation" after "in
danger of being subjected to forced disappearance" in paragraph 1.
.
Article 16

38. The Chairman-Rapporteur proposed reverting to the earlier wording which was more in keeping
with the concepts of crime against humanity and statutory limitation. In paragraph I, statutory limitation
applied to crimes of forced disappearance which constituted crimes against humanity. Paragraph 2
referred to crimes offorced disappearance which did not, under article 3 of the Convention, constitute
crimes against humanity, and for which the prescription period was to be the longest period laid down in
national legislation.
Article 17
39. In paragraph 1, it was suggested that the words "prior to their trial, and where applicable,
conviction" should be inserted after the words "from any amnesty measure or similar measures".

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40. Mr. Joinet proposed deleting from paragraph 2 the words "which may only be granted for
humanitarian reasons after conviction of the person responsible for any ofthe acts referred to in article 2
of this Convention".
Article 20

41. In paragraph 1, it was suggested that the brackets should be deleted.
Article 21
42. In paragraph 4, Ms. Hampson suggested inserting, after the words "that are recognized", the words
''binding upon".

43. In paragraph 6, Mr. loinet suggested deleting the words tlnational or international".
Article 22.

44. Ms~ Hampson suggested that the words "any person deprived ofliberty" in paragraph l'be replaced
with the words "where any person is deprived ofliberty, he or she".
45. After paragraph 3, Ms. Hampson suggested inserting an additional paragraph which would read as
follows: "States Parties shall identifY who is the responsible person in national law for the integrity"and
accuracy of the custody record. Without prejudice to the provisions of articles 1,2 and 3 ofthis
Convention, States Parties shall make it a criminal offence for the responsible person, as defined in
national law, to fa~J to register the deprivation ofliberty of any person or to record inforination which is

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or should be known to be inaccurate in the custody record."
Article 23

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46. Mr. Joinet proposed that the words "in a mannerll should be replaced by "according to a procedure",
Article 24
47. In paragraph 4, Ms. Hampson suggested inserting, after the words "referred to in article 211 , the
words "and 3".
Article 25
48. The Chainnan-Rapporteur recalled that, in all United Nations human rights Conventions providing
for a monitoring mechanism such as a committee, procedural arrangements were entrusted to the
Secretary-General ~fthe United Nations as depositary ofthe instrument in question. In the preliminary
draft, the relevant provisions were:
Article 25, paragraphs 3,4,5 and 7 (procedure for the election of members of Committee);
Article 26, paragraphs 3 (material assistance) and 4 (convening of the initial meeting);
Article 27, paragraphs 1 and 2 (procedure for the submission ofreports by States parties).
49. During the preparation of the preliminary draft, a number ofNGOs had expressed the view that, as .
the High Commissioner for Human Rights was responsible in particular for the question ofhuman rights
within the United Nations system, that role should now be assigned to the Office ofthe High
Commissioner. With the agreement ofthe working group, the Chairman-Rapporteur had held ..
consultations on the legal and other aspects ofthis question. As a result, the legal implications ofthis
innovative proposal were to be considered in more detail. For example, the depositary of the instrument,
as in fact provided in article 39, paragraph 1, of the preliminary draft, was the Secretary-General and not
the High Commissioner for Human Rights. This raised the question of coordination between the two
mandates which it would be premature tO,resolve in the consideration of a draft convention, since a
general question ofprinciple was involved. Mr. Joinet therefore proposed reverting to the wording
currently in effect and replacing the words "High Commissioner for Human Rights" by "SecretaryGeneral of the United Nations" in paragraphs 3 (second line» 4 (third and fifth lines) and 7 (first line) of
article 25, and in article 26, paragraphs 3 and 4 (first lines), and article 27, paragraphs 1 (first and second
lines) and 2 (first line). It was so decided.

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50. In paragraph 1 Ms. Hampson, Mr. Kartashkin, Mr. Goonesekere, Mr. Oloka-Onyango, Mr. Sang
Yang Park and Mr. Weissbrodt discussed the interpretation of the words "civil servant" at line 6, the
status of which differed from one country to the next. The working group adopted the proposal ofMr.
Sik Yuen that the words "the status of civil servant or any other" be deleted from the text so that the
sentence reads as follows: "Membership of the Committee is incompatible with any other post or
function subject to the hierarchical structure of the executive authority ofa State Party."
51. In paragraph 2, line 3, Mr. Weissbrodt proposed that the word "one" be deleted and replaced with the .
word "three" following the example of the European Court of Human Rights, Mr. Alfonso Martinez
stressed the desirability that the State party be in a position to have the option, rather than the obligation,
to nominate "up to three persons". Mr. Sik Yuen and Mr. Zhong Shukong made comments in this
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connection. The Chairman-Rapporteur suggested the working group should opt for the text of article 29
ofthe International Covenant on Civil and Political Rights, which stipulated "Each State Party to the
present Covenant may nominate not more than two persons,lI
52. In paragraph 4, line 8, Mr. Yokota suggested that the word "relevant" be inserted before the words
"intergovernmental organizations" and Mr. Weissbrodt suggested that it be inserted before the words
"non-governmental organizations".
53. In paragraph 6, Mr. Yokota suggested inserting the words "or her" after the words Itperfonn his" and
the words "which nominated him".

Article 26
54. Mr. Jomet suggested that, in paragraphs 3 and 4, the words "High Commissioner for Human Rights"
should be replaced by "Secretary-General of the United Nations".
Article 27
55. Mr. Joinet also proposed replacing the words "en question" in the French version of paragraph 1 by
"concerne".
56. In paragraph 1, Ms. Hampson suggested replacing the words "the Committee may make a visit to the
territory ofthat State Party" with the words "the Committee may make a visit to the territory under the
control of that State",

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57.ln paragraph I, Mr. Yokota proposed to insert the following sentence after the second sentence: "The
State party concerned shall provide all the necessary facilities for such a visit including the entry into the
country and visiting such places and meeting with such persons as may be required for carrying out the
mission ofthe visit."
Article 28
58. In paragraph 1, Ms. Hampson suggested inserting after the words "in the territory" the words "under
the control of".
59. In paragraph 3, Ms. Hampson suggested inserting, after the words "may include a visit to its
territory" the words "under its control", and inserting after the words "include visits to the territory" the
words "under the control".
60. Mr. Joinet made a proposal concerning paragraph 4 which did not affect the English text.

61. Mr. Joinet proposed replacing "petitions" in paragraph 1 by "communications" and changing
"communication" in the first line ofparagraph 2 to "communications".
Article 36
62. In paragraph 1, Mr. Kartashkin expressed concern that by giving States the option to make'
reservations concerning the articles which provided for the supervisory mechanism, the effectiveness of
the entire draft convention would be called into question. He proposed that no reservations he possible
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concerning the articles referring to the competence and functioning of the Committee. Ms. Hampson
suggested allowing for reservations under article 30 only, providing for the submission of
communications to the Committee concerning a violation of the provisions contained in the draft
convention. Mr. Sang Yong Park and Mr. Weissbrodt were also in favour of retaining the clause on
reservations in conformity with the text of the draft convention.
63. The Chairman-Rapporteur suggested a compromise text to take account of the discussion on the
advisability or otherwise of allowing for reservations in article 36 and ofmaintaining some degree of
flexibility in that respect so as to simplify ratification for some States. The text was drawn from article
20 (2) of the Inten:tational Convention on the Elimination of All Forms of Racial Discrimination.
64. The working group, after approving the amended draft as a whole by consensus, requested that the
Sub-Commission should transmit the revised draft convention, with the comments and suggestions
contained in this report, to the Commission on Human Rights.

II. ISSUES RELATED TO THE DEPRIVATION OF THE RIGHT TO LIFE

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65. In accordance with the request made by the working group at the Sub-Commission's forty-ninth
session, Mr. Guisse submitted a follow-up report on the evolution of the death penalty
(E/CN.4/Sub.2/l998/WG.lICRP.3). He reported on the progress made in the de jure and de facto
abolition ofthe death penalty throughout the world. The infomation provided by Amnesty International
and the International Abolitionist Federation showed that 54 countries had now legally abolished the
death penalty; 15 countries had abolished it except for war crimes; and 27 had not imposed it for more
than 10 years. He also stressed that the death penalty had been maintained in 97 States. It was applied to
vulnerable groups, such as minors. pregnant women. mothers of young children, the mentally ill. the
mentally disabled and the elderly. In order to encourage the abolition of the death penalty, he referred to
practices guaranteeing a fair trial, such as appointment of counsel by the courts. personality
investigations and the abolition of special courts. It would be worthwhile considering, at both national
and international levels, possible substitutes for the death penalty in order to assist countries wishing to
abolish it.
66. The representative of the Office of the High Commissioner for Human Rights highlighted the need
to coordinate the initiatives undertaken on the death penalty by the respective United Nations organs and
bodies. He mentioned in particular the quinquennial report on the question of capitai punishment
prepared by the Centre for International Crime Prevention. the yearly supplement to this quinquennial
report prepared by the Office ofthe High Commissioner, the work of the Special Rapporteur on
extrajudicial, summary or arbitrary executions. and the consideration of article 6 of the International
Covenant on Civil and Political Rights by the Human Rights Committee. However. he mentioned that
the question arises as to which was the preferable forum for consideration of the death penalty issue. In
this regard it should be noted that discussing the issue within the context of human rights~ and not just
criminal justice aspects, could be considered as a positive step towards its abolition.
/

67. Mr. Alfonso Martinez mentioned that the queE1tion of the death penalty was being considered by
United Nations bodies in Geneva and Vienna. The bodies in Geneva were focusing on ways by which
the death penalty was affecting human rights and more specifically the right to life, whereas those in
Vienna were of a more technical and legal nature. There was therefore no duplication ofthe activities of
the respective forums, and means should be sought to ensure complementarity of the activities.
68. Mr. Ramishvili mentioned that it might be useful to reflect the work the Council ofEurope was
undertaking on the death penalty in Mr. Guiss6's report. This would highlight the 'difficulties
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encountered with regard to the abolition of the death penalty in that part of the world and the way it
. affected the criminal process. The Chairman-Rapporteur asked the secretariat to provide Mr. Guisse
with the ~orementionedCouncil of Europe documents.
69. Mrs. WARZAZI suggested that the working group should consider the plight of children whose
mothers had been executed. While working for the gradual abolition of the death penalty, it should
clearly defme the cases for which the death penalty was required.
70. Mr. Sorabjee stated that the death penalty should be abolished in view of the miscarriages ofjustice
which occurred, the use of the death penalty for political ends, recourse to special courts which failed to
guarantee due process oflaw and, above all, in view of the fact that the execution of a death sentence
was irrevocable.

I

71. Mr. Oloka-Onyango agreed with Mr. Sorabjee that in view of the discriminatory manner in which
the de~th penalty was being applied, often disproportionately affecting individuals on the basis of race,
ethnicity and economic status, abolition was the only appropriate course ofaction. He drew attention to
the Second Optional Protocol to the International Covenant on Civil and Political Rights, which he
suggested the Sub-Commission should encourage States to sign.
72. Ms. Hampson recalled the danger ofwrongful convictions, which were all the more likely in cases in
which individuals were convicted ofterrible criminal offences compounded with pressure ofpublic
opinion to punish the perpetrators. She stressed that it was an obligation ofStates to educate public
opinion to fully respect human rights, including the right to life, and due process oflaw, in confonnity
with article 6 (6) of the International Covenant on Civil and Political Rights which states that nothing
shall be invoked to delay or to prevent the abolition ofcapital punishment by any State party.
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73. Mr. Zhong Shukong highlighted that the abolition of the death penalty should be considered a
gradual process, as long as it was carried out in conformity with the rule of law, and that it was
important to bear in mind country-specific conditions which might influence the timetable for
abolition of the death penalty.

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74. Mr. Alfonso Martinez suggested that paragraphs 18 to 22 ofMr. Guisse's report reflected also an
increase in the recourse to the death penalty in cases in which the author of the offence belonged to a
vulnerable group and the victim not, particularly in cases when the author was a Black or an immigrant
from a third world country.
75. The Chairman-Rapporteur of the working group thanked Mr. Guisse for his excellent report and
suggested that he should submit an updated follow-up report at the next session. That report should
cover:
The approach specified in Commission on Human Rights resolution 1998/8;
The measures taken by various United Nations bodies, both in Geneva and in Vienna;
Progress in the signing or ratification of the Second Optional Protocol to the International Covenant on
Civil and Political Rights, aiming at the abolition ofthe death penalty;
Information provided by NGOs on the situation of women and minors sentenced to death or executed.
76. Mr. Guisse thanked the working group for its helpful suggestions and agreed to submit a follow-up
report on this important question at the following session.
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III. HABEAS CORPUS AS A NON-DEROGABLE RIGHT
77. Mr. Weissbrodt recalled that in 1993 the Sub-Commission had requested the Secretary-General to
send to the Human Rights Committee the draft third optional protocol to the International Covenant on
Civil and Political Rights. The Sub-Commission suggested the advisability of elaborating such a
protocol to make the right to a fair trial, habeas corpus and amparo non-derogable rights. The Committee
responded that perhaps the developing jurisprudence under article 4, which dealt with non-derogable
rights contained in the Covenant, and other jurisprudence on articles 9 and ~4 would be a more effective
way of achieving those objectives. The Sub-Commission suggested that in accordance with decision
1997/115 the Committee consider preparing a revised general comment on article 4 of the Covenant,
reaffirming the developing consensus that habeas corpus and the related aspects of amparo should be
considered as non-derogable rights. The Committee agreed to this proposal and began a very early
process of revising its existing General Comment 5 on article 4 of the Covenant. In his view, this
development also demonstrated an increased cooperation between the Sub-Commission and treaty
bodies and thus responded to requests made by the Commission on Human Rights to the SubCommission during the last three years to enhance cooperation with mechanisms of the Commission and
human rights treaty bodies. Therefore, the work of the working group had been successfully completed
in this area.

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78. Mr. Sorabjee stated that habeas corpus had been the most effective safeguard for life and liberty. Its
absence during several months ofstate of emergency proclaimed in India in 1975 had resulted in a
number ofarbitrary detentions and various abuses of basic human rights. He was of the opinion that
military tribunals should not take the place ofnon-military courts during periods of emergency, since a
court should be an impartial and independent court ofjustice. This was particularly important because
habeas corpus and similar procedures were often the most effective way to protect other rights which
could not be derogated from in any circumstances, including a state of emergency. These considerations
should be taken into account by the Committee in the process of revising its general comment on article
4.

79. Mr. Guisse pointed out that, even though the tenn "habeas corpus" did not exist in the francophone
African legal system, the principle was applied. For example, constitutions provided detainees with
guarantee mechanisms by making detention measures transparent and reducing their length. Similar
procedures should also be taken into account in any revision of the general comment on article 4.
IV. MEASURES TO BE TAKEN TO GIVE FULL EFFECT TO THE
CONVENTION ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
80. Ms. Warzazi noted the adoption of the Statute for the International Criminal Court which would
have jurisdiction in the punishment of the crime ofgenocide. In the light of this, Mr. Bide suggested that
the working group address issues pertaining to the administration ofjustice within the framework of the
activities of the International Criminal Court.
81. In the light ofthe proposals made, the Chainnan-Rapporteur suggested that the title of the agenda
item should be amended to read "Action to combat genocide: from the 1948 Convention to the
International Criminal Court, review and prospects 1i •

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V. JlNENILE JUSTICE

C

82. Mr. Joinet said that, as Ms. Lucy Gwanmesia had not been re-elected as a member of the SubCommission, she had been unable to submit a working paper on the topic. He drew attention to
Economic and Social Council resolution 1997/30 on the administration ofjuvenile justice. He stressed
the need for better coordination of the activities ofthe Sub-Commission with those of the Commission
on Crime Prevention and Criminal Justice and between their respective secretariats, so as to avoid
duplication of their work and to enable each to benefit from the others' experience.
83. Mr. Alfonso Martinez supported this suggestion. However, he drew the attention ofthe group to the
differences between the terms of reference of relevant organs and entities and the large number of
activities involved. Coordination ofpertinent activities should be further encouraged, described and
taken into account by the working group.

(

84. The representative of the secretariat stated that, in compliance with Economic and Social Council
resolution 1997/30 a Coordination Panel on Technical Advice and Assistance in Juvenile Justice was
established. The first meeting of the Panel took place on 2S and 26 June 1998 and was opened by the
High Cominissioner for Human Rights. At the meeting the Office ofthe High Commissioner for Hwnan
Rights presented its preliminary survey on technical advice and assistance under the Convention on the
Rights of the Child. In addition, the meeting provided a good framework to establish a link between the
work of the Plan of Action regarding its mandate and follow-up of the recommendations of the
Committee on the Rights of the Child addressed to States parties, including in the area ofjuvenile
justice. Members of the Panel would take appropriate measures and coordinate their action to establish
new and reinforce existing technical assistance projects in the area ofjuvenile justice. The members of
the Panel would review the draft training manual on juvenilejustice. At the country level, UNICEF
representatives would follow up the recommendations made by the Committee following its
consideration of State party reports during its seventeenth and eighteenth sessions, especially in the field
ofjuvenile justice. In view ofthe many ongoing initiatives in this area, the working group decided to
delete this item from its agenda.
VI. PRIVATIZATION OF PRISONS

85. At the first meeting, the Chairman-Rapporteur introduced this agenda item, which had been on the
since 1989, by going over the background to it for the benefit of newly-elected members ofthe
working group:
agend~

At its forty-first session, by decision 19891110, the Sub-Commission had requested Mr. Miguel Alfonso
Martinez to prepare a working paper which would contain proposals on the best way for the SubCommission to study further the issue ofprivatization of prisons and to submit the working paper to it at
its forty-second session;
At its forty-third, forty-fourth and forty-fifth sessions J;'espectively. the Sub-Commission had had before
it the working paper submitted by Mr. Alfonso Martinez (ElCN.4/Sub.2/1991/56), a working paper
submitted by the Secretary-General (E/CN.4/Sub.2/1992/21) and an outline prepared by Mrs. Claire
PaHey (E/CN.4/Sub.2/1993!21);
.
At its forty-fifth session, the Sub-Commission had, in its decision 1993/109, requested the Commission
on Human Rights to authorize the Sub-Commission at its forty-sixth session to appoint one of its
.
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members to undertake a special study;
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I

\

At its fiftieth session, by decision 1994/103, the Commission had requested the Sub-Commission to
reconsider its decisions to recommend new studies and related efforts, including the study mentioned
above" The Commission had also decided that it was unnecessary or premature to make any
detennination on those studies and related efforts and had requested the Sub-Commission to present its
recommendations to the Commission at its fifty-first sessioni
The Sub-Commission had taken no decision on the question at its forty-sixth or forty-eighth sessions;
At its forty-ninth session, the Sub-Commission, in its resolution 1997/26, had decided to request its
parent bodies to authorize it to appoint Mr. Ali Khan as special rapporteur in order to undertake an indepth study on all issues relating to the privatization ofprisons, including the obligation to respect and
implement the legislation in force in the country concerned and the possible civil responsibility of
enterprises and their employees, a study which should be completed in time for consideration by the
Sub-Commission at its fifty-second session.
86. The Chairman then read out an excerpt from Commission on Human Rights resolution 1998/32 in
which the Commission had requested the Sub-Commission to reconsider its recommendation to appoint
a special rapporteur on the privatization of prisons. The Chainnan-Rapporteur wondered whether that
resolution covered the principle ofthe study itself or simply the appointment of a rapporteur. Mr.
Alfonso Martinez believed that the latter was the case and that the item should therefore be kept on the
working group's agenda.

(

87. Mr. Guisse underlined the importance of the question ofprivatization ofprisons, which involved the
abandonment ofpublic service activities linked specifically with the functions ofthe State. Mr. Alfonso
Martinez also supported this point of view and suggested continuing the consideration ofthis issue.
88. Mr.. Zhong Shukong stated that prisons were part of the State structure. This issue needed to be
reviewed, but this did not mean approval of the privatization of prisons.

89. The Chainnan-Rapporteur suggested that Mr. Alfonso Martinez prepare an annually updated
working paper on the privatization ofprisons. Both Mr. Alfonso Martinez and t4e working group
approved the suggestion.
90. Ms. Warzazi wondered whether the agenda item should not be broadened to cover other aspects
relating to prisons. For example, the working group could look more carefully into the idea of making
the material conditions of prisoners, which were linked with the country's level of development, as a
separate issue and concentrating on violations of the integrity of the individual (ill-treatment in all its
£onns), which, by definition, were unrelated to the country's level ofdevelopment. She suggested that
the NGO Obseivatoire international des prisons. which had the advantage of dealing with all categories
ofprisoners, including customary-law prisoners, should be approached in that connection. She asked the
Chainnan-Rapporteur to make the necessary contacts.
91. At the suggestion of the Chairman-Rapporteur, it was then decided to postpone discussion of the
item until the end of the session, so as to accord priority to and~ if possible, given the time available,
complete consideration ofthe preliminary draft convention on forced disappearance.
92. At the second meeting, the Chairman-Rapporteur informed the working group that he had contacted
Observatoire international des prisons, as suggested by Ms. Warzazi. The Chainnan of that organization·
had sent the working group a memorandum containing the following proposals, subject to consultation

I·
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with its Executive Council and availability of the necessary funding:
(a) Draw a clearer distinction between prisons in developed countries and those in developing countries,
particularly the poorest ofthose countries;
(b) Adopt a consistently finn stance towards physical or mental ill-treatment, but take account of the
poverty factor in assessing prison conditions;
(c) Accord much greater importance to children's issues: child detainees; children born and raised in
prison with their detainee mother; visiting rooms where children saw their parents detained in degrading
conditions.

VII. RECOGNITION OF GROSS AND MASSIVE VIOLATION OF HUMAN RIGHTS
PERPETRATED ON THE ORDERS OF GOVERNMENTS OR SANCTIONED
BY THEM AS AN INTERNATIONAL CRIME
93. Mr. Joinet referred to Commission on Human Rights decision 1996/105, by which the Commission
decided to postpone the decision on forwarding to the Economic and Social Council the draft decision of
the Sub-Commission authorizing the preparation of a report on the subject in order to be able to take into
account the work ofother United Nations bodies in this field, including that of the International Law
Commission. A relevant request was sent to this Commission but the Commission had not replied. In
view of the above, the working group decided to delete this item from the agenda.
./ '

VIII. PROVISIONAL AGENDA FOR THE NEXT SESSION
94. At its fifth session, the working group considered the provisional agenda for the next session. The
drew the attention of the group to the wish ofMr. Fix Zamudio to undertake a .
study entitled "Improvement and efficiency of the judicial instruments for the protection ofhuman rights
at the national level and their impact at the intemationallevel". The working group agreed that to this
end, an additional item with the same title be included in the provisional agenda for the next sessio~ and
requested Mr. Fix Zamudio to prepare a working paper on this subject for the next session.
Chairman~Rapporteur

95. At its 3ed meeting, the working group adopted the following provisional agenda for its next session:
1. Election of officers.

2. Adoption of the agenda.
3. Issues related to the deprivation of the right to life, with special reference to:

(a) Imposition ofthe death penalty;
(b) Summary, arbitrary and extrajudicial executions.
,

4. Privatization ofprisons.

\.
5. Action to combat genocide: from the'1948 Convention to the International Criminal Court, results and

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prospects.
.'

\

6. Improvement and efficiency of the judicial instruments for the protection of human rights at the
national level and their impact at the intemationallevel.
7. Provisional agenda for the next session.
8. Adoption ofthe report of the working group to the Sub-Commission.

IX. ADOPTION OF THE REPORT OF THE WORKING GROUP TO THE SUB-COMMISSION

96. At its 5th meeting, on 17 August 1998, the working group unanimously adopted the present report to'
the Sub-Commission.

I

DRAFf INTERNATIONAL CONVENTION ON THE PROTECTION
OF ALL PERSONS FROM FORCED DISAPPEARANCE
PREAMBLE
The States Parties to this Convention,
Considering that, in accordance with the principles proclaimed in the Charter ofthe United Nations and
other international instruments, recognition of the inherent dignity and of the equal and inalienable
rights of aU ,members of the human family is the foundation of freedom, justice and peace in the world,

B5

Bearing in mind the obligation of States under the Charter, in particular Article 55, to promote universal
respect for, and observance of, human rights and fundamental freedoms,
Taking into accoun! that any act of forced disappearance of a person constitutes an offence to human
dignity, is a denial of the purposes ofthe Charter and is a gross and flagrant violation of the human
rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, and
reaffinned and developed in other international instruments in this field,
In view of the fact that any act of forced disappearance of a person constitutes a violation of the rules of
international law guaranteeing the right to recognition as a person before the law, the right to liberty and
security of the person, and the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment,
Considering that forced disappearance undennines the deepest values of any society committed to the
respect ofthe rule oflaw, human rights and fundamental freedoms, and that the systematic or
widespread practice of such acts constitutes a crime against humanity,
.
Recognizing that forced disappearance violates the right to life or puts it in grave danger and denies
individuals the protection ofthe law,
Taking into account the Declaration on the Protection of All Persons from Enforced Disappearance

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adopted by the General Assembly ofthe United Nations,

,.-----,

ecallin the protection afforded to victims'of armed conflicts by the Geneva Conventions of 12 August B5
1949 and the Additional Protocols thereto of 1977,
I·

avin re ard in particular to the relevant articles of the Universal Declaration ofHuman Rights and the
nternational Covenant on Civil and Political Rights, which protect the right to life, the right to liberty
d security oithe person, the right not to be subjected to torture and the right to recognition as a person
efore the law,
avin re ard also to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which provides that States Parties shall take effective measures to prevent and
unish acts oftorture,
e rin in mind the Code of Conduct for Law Enforcement Officials, the Basic Principles on the Use of
orce and Fireanns by Law Enforcement Officials, the Declaration ofBasic Principles of Justice for
ictims ofCrime and Abuse of Power, the Standard Minimwn Rules for the Treatment of Prisoners, and
the Principles of international cooperation in the detection, arrest, extradition and punishment ofpersons
guilty ofwar crimes and crimes against humanity,
Affmnin that, in order to prevent acts that contribute to forced disappearances it is necessary to ensure
strict compliance with the Body ofPrinciples for the Protection ofAll Persons under Any Form of
etention or Imprisonment. adopted by the General Assembly on 9 December 1988, and the Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,
endorsed by the General Assembly on 15 December 1989.
i int account also the Vienna Declaration and Programme ofAction adopted by the World
Conference on Human Rights on 25 June 1993,

Wis' to increase the effectiveness of the struggle against forced disappearances ofpersons
oughout the world,

' - - _ . J u.....

Have agreed as follows:
PART I
B5

Article 1
1. For the puzposes of this Convention, forced disappearance is considered to be the deprivation of a
person's liberty, in whatever fOrIn or for whatever reason, brought about by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence of the State,
followed by an absence of infonnation, or refusal to acknowledge the deprivation of liberty or /C"
information, or concealment of the fate or whereabouts of the disappeared person.
",
\

2. This article is without prejudice to any international instrument or national legislation that does or \
may contain provisions ofbroader application, especially with regard to forced disappearances
"
pezpetrated by groups or individuals other than those referred to at paragraph 1 of this article. .--0:,.,--'
Article 2

B5

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1. The perpetrator of and other participants in the offence of forced disappearance or of any constituent
element of the offence, as defined in article 1 of this Convention, shall be punished. The perpetrators or
other participants in a constituent element of the offence as defined in article 1 of this Convention shall
be punished for a forced disappearance where they knew or ought to have known that the offence was
about to be or was in the process of being committed. The perpetrator of and other participants in the
following acts shall also be p u n i s h e g
.

B5

(a) Instigation, incitement or encouragement 0 the commission of the offence of forced disappearance;
(b) Conspiracy or collusion to commit an offence of forced disappearance;
B5

(c) Attempt to commit an offence afforced disappearance; and
(d) Concealment of an offence of forced disappearance.
2. Non-fulfilment ofthe legal duty to act to prevent a forced disappearance shall also be punished.

I

I

Article 3

' - -_ _..J

BS

1. The systematic or massive practice of forced disappearance constitutes a crime against humanity.
t:.

~

L-

2. Where persons are suspected of having perpetrated or participated in an offence, as defined in articles
1 and 2 ofthis Convention, they should be charged with a crime against humanity where they mew or
ought to have known that this act was part of a systematic or massive practice offorced disappearances,
however limited the character of their participation.
<.
Article 4

1. The States Parties undertake:

B5

(a) Not to practise, permit or tolerate forced disSapiJrelmDrICe;---:...------i
(b) To investigate immediately and swiftly any complaint of forced disappearance and to infonn the
family ofthe disappeared person about his or her fate and whereabouts;
(c) To impose sanctions, within their jurisdiction, on the offence of forced disappearance and the acts or
omissions referred to in article 2 of this Convention;
.
(d) To cooperate with each other and with the United Nations to contribute to the prevention,
investigation, punishment and eradication of forced disappearance;
(e) To provide prompt and appropriate reparation for the damage caused to the victims of a forced
(sappearance in the tenns described in article 24 of this Convention.

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3. The States Parties undertake to adopt the necessary legislative, administrative, judicial or other
\
measures to fulfil the commitments into which they have entered in this Convention.

.

. I

~Art......."ic=le,-,5"l.

I

---.J.

B5

1. The States Parties undertake to adopt the necessary legislative measures to define the forced
disappearance ofpersons as an independent offence, as defined in article 1 of this Convention, and to
define a crime against humanity, as defined in article 3 ofthis Convention, as separate offences, and to
impose an appropriate punishment commensurate with their extreme gravity. The death penalty shall not
be imposed in any circumstances. This offence is continuous and permanent as long as the fate or
whereabouts of the disappeared person have not been determined with certainty.

2. The State Parties may establish mitigating circllmstanc~ for persons who, having been implicated in
the acts referred to in article 2 ofthis Convention, effectively contribute to bringing the disappeared
person forward alive, or voluntarily provide information that contributes to solving cases of forced
disappearance or identifying those responsible for an offence of forced disappearance.
B5

I

- - - -__- - -

----J

Article

61'-

---

B5
--1

r"''''-

,
1. Forced disappearance and the other acts referred to in article 2 of this Convention shall be considered
."'''-., as offences in every State Party. Consequently, each State Party shall take the necessary measures to
.[establish jurisdic~in the following instances:
(a) When the offence of forced disappearance was committed within any territory under its jurisdiction;
I

,
\

O
,

.

(b) When the alleged pezpetrator or the other alleged part' , .

in the offence offorced disappearance
r the other acts referred to in article 2 of this Conventi n'are ilLthe te . 0 of eState P ,
rrespective ofthe nationality of the alleged perpetrator 0 e other alleged participants, or ofthe
ationality ofthe disappeared person, or of the place or territory where the offence took place§iless the B5
State extradites them or transfers them to an international criminal tribun~

2. This Convention~es not exclude any jurisdiction exerCised

L

.

D· B5

.

r---J~---------.

B5

Article 7
1. Any State Party on whose territory a person suspected of having committed a forced disap,pearance or
an act referred to in aI1ic1e 2 of this Convention is present shall, iYfier considering the infonnation at its
dispos~it deems that the circumstances so warrant, take all necessary measures to ensure the continued
presence of that person in the territory and if necesSary take him or her into custody. Such detention and
measures shall be exercised in conformity with the legislation ofthat State, and may be continued only
for the period necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary investigation of the facts.
3. When a State, pursuant to this at1icle, gathers evidence of a person's responsibility but does not
exercise its jurisdiction over the matter, it shall immediately notify the State on whose territory the
offence was committed, informing it ofthe circumstances justifying the presumption ofresponsibility, in
order to allow that State to request extradition.
.

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B5

Article 81
------

-..J

1. States Parties shall afford one another the 'greatest measure of legal assistance in connection with any
criminal investigation or proceedings relating to the offence of forced disappearance, including the
supply of all the evidence at their disposal that is necessary for the proceedings.
2. States Parties shall cooperate with each other, and shall afford one another the greatest measure of
. legal assistance in the search for, location, release and rescue ofdisappeared persons or, in the event of
death, in the return of their remains.
3. States Parties shall carry out their obligations under paragraphs 1 and 2 of this article, without
prejudice to the obligations arising from any treaties on mutual legal assistance that may exist between
them.
,,
II

Article

\

91

B5

-----.---

--J

1. No order or instruction of any public authority ~ civilian, military or other ~ may be invoked to justify
a forced disappearance. Any person receiving such an order or instruction shall have the right and duty
not to obey it. Each State shall prohibit orders or instructions commanding, authorizing or encouraging a B5
forced disappearance.

(

2. Law enforcement officials who have reason. to believe. that a forced disappearance has occurred o r L i s
about to occur shall communicate the matter to their superior authorities and, when necessary, to
competent authorities or organs with reviewing or remedial power.
3. F.QI£ed disappearance committed by a subordinate shall not relieve his superiors of criminal-_ _
re$ponsibility if the latter failed to exercise the powers vested in them to prevent or halt the commission
ofthe crime, if they were in possession of information that enabled them to know that the criW~ was
being or was about to be committed.
Article 10

I

.

1. The allege? pernetratorsrof and other participants in the offence of forced disappearance or the other
acts referred to in article 2 of this Convention ~all be trie? only in the courts _~f &~1J~!.81 juri~~~!!P!1.2f
each State, to the exclusion of all courts o(special jurisdiction, and particularly milItary courts. *-

~ 2. No PrivJeges, tmmumtles O)~~ci~; exem~tio~s Sh~l1 ~:-~nted ~~ suc~ :ria~S'S~bje;~-~:c,~~~

co,

=t

provisions of the Vienna Convention on Diplomatic Relationsl

B~5")

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or"-------------:w:5~

3. The perpetrators of and other participants in the offence of forced disappearance or the other acts
B5
referred to in article 2 of this Convention shall in no case be exempt from criminal responsibility [ ]
including where such offences or acts were committed in the exercise of military or police duties or in
the course ofperforming these functions.
4. The States Parties guarantee a broad legal standing in the judicial process}o any wronged party,
any person or national or international organization having"a legitimate interest therein.

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B5

I I

1. Each State Party shall ensure that any person who alleges that someone has been subjected to forced
disappearance has the right to complain to a competent and independent State authority and to have that

(

complaint immediately, thoroughly and impartially investigated by that authority.
2. Whenever th~re are grounds to believe that a forced disappearance has been cotnplitted, the State shall
refer the matter to that authority without delay for such an investigation, even ifthere has been no
formal complaint. No measure shall be taken to curtail or impede the investigation.

,.
/
.'

3. Each State Party shall ensure that the competent authority has the necessary powers and resources to
conduct the investigation, including powers to compel attendance of the alleged petpetrators or other
participants in the offence of forced disappearance or other acts referred to in article 2 of this
Convention, and ofwitnesses, and the production ofrelevant evidence. Each State shall allow immediate
and direct access to all documents requested by the competent authority, without exception..

4. Each State Party shall ensure that the competent authority has access, without delay or prior notice, to
any place, including those classified as being places of national security or of restricted access, where it
is suspected th~ a victim of forced disappearance may be held.
5. Each State Party shall take steps to ensure that all persons involved in the investigation - including the
complainant, the relatives ofthe disappeared person, legal counsel, witnesses and those conducting the
investigation - are protected against ill-treatment and any acts ofintimidation or reprisal as a result of
the complaint or investigation. Anyone responsible for such acts shall be subject to criminal punishment.
6. The findings of a criminal investigation shall be made available upon request to all persons
concerned, unless doing so would gravely hinder an ongoing investigation. However, the compete.nt
authority shall communicate regularly and without delay to the relatives of the disappeared person the
,.-(_ _...,results of the inquiry into the fate and whereabouts of that person.

B5

7. It must be possible to conduct an investigatioJ!, in accordance with the procedures described above;
for as long as the fate or whereabouts ofthe disappeared person have not been established with certainty.

8. The alleged perpetrators of and other participants in the offence of forced disappearance or other acts
eferred to in article 2 of this Convention shall be
any official duties during the
. vestigation'

B5

Article 12
Il-Eal:cf:jd..disaltlIlf:aI]ll1CJe..sllall:.m:l1..Qe considered a political offence for pUtposes of extradition.

B5
B5

3. States Parties undertake tco5'1imiCcmuImernieeoomeniiicffiefioopmn~[]fiiiiifum;araiEi[aiiiOifuLthe..ex.lmditJilbLL

--,

offences in every extradition treaty they conclude.

4. Should a State Party that makes extradition conditional on the existence of a treaty receive a reque·>SJ-_---,
for extradition from another State Party with which it has no extradition treaty, it may consider this
Convention as the necessary legal basis for extradition with res ect to the offence of forced
disappearance.

B5

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5. States Parties which do not make extradition conditional on the existence of a treaty shall recognize
the said offence as extraditable1
'------------------~----_...J

6. Extradition shall be subject to the procedures established in the law of the requested ~tate.

I

Article 13

'I

B5

When a State Party does not grant the extradition or is,not requested to do so; it shall submit the case to.
its com clen! authorities as ifthe offence had been committed within its 'urisdfctiont for the purposes of
investigation and, when appropnate, or cnmma proceedings. in accor ance WI Its nationalla~. Any
decision adbpted by these authorities shall be communicated to the State requesting extradition.

Article

B5

I

141

Forced disa2e ,
e shall not be considered a political offence, nor related to a political offence, for
~ purpos~s of lum)and refu e. States Parties to this Convention shall not grant diplomatic or territorial
asylum or ref~gee status to any person ifthere arF substantiated crounds for believing that he or she has
taken part in a forced disappearance.
L
,B5
\ B5
B5
Article 15

I

I

1. No State Party shall expel, return (refouler) or extradite a person to another State ifthere are grounds
for believing that he or she would be in danger of being subjected to forced disappearlce,or any other
,serious human rights violation in that other State.
.

(

I

B5

2. For the purpose of detennining whether such grounds exist, the competent authorities shall take into'

account all relevant considerations, including~here applicab§j the existence in the State in question of
. tions indicatin
oss s stematic or wides read violations ofhuman ri hts.
.

Article 16 '--

--,~----.

B5

1. No statutory limitation shall apply to criminal proceedings and any punishment arising from forced ,
disappearances, when the forced disappearance constitutes a crime against humanity, in accordance with
article 3 of this Convention.
2. When the forced disappearance does not constitute a crime against humanity in accordance with
artiCle 3 of this Convention, the statute of limitation for the offence and the criminal proceedings shall
be ual to the Ion est eriod laid down in the law of each tate Part ,s!!.rting from the moment whe!,l
the fate or whereabouts ofthe isa eared erson i e
i hed with ~~~im~. When the remedies
B5 described in article :1 of the IntematlOna ovenant on Civil and Political Rights are no longer effective,
the prescription for the offence of forced disappearance shall be suspended until the efficacy ofthese
remedies has been restored.

O

3. States Parties shall adopt any legislative or other measures necessary to bring their law into
conformity with the provisions of the preceding paragraphs.

Articl~ 171.. .

B5
---1

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1. The perpetrators or suspected perpetrators of and other participants in the offence of forced
/
disappearance or the acts referred to in article 2 of this Convention shall not benefit from any amnesty
measure or similar measures prior to their trial and, where applicable, conviction that would have the
effect of exempting them from any criminal action or penalty.
2. The extreme seriousness of the offence of forced disappearance shall be taken into account in the
granting ofpardon.

I

Article 18 .;. . .- - - - - - - - - -

*5
J

1. Without prejudice to articles 2 and 5 ofthis 'Convention, States Parties shall prevent and punish the
abduction of children whose parents are victims offorced disappearance and of children born during
their mother's forced disappearance, and shall search for and identifY such children. As a general rule,
the child will be returned to his or her family oforigin. Here the best interests of the child must be taken
into account and the views of the child shall be given due weight in accordance with the age and
maturity of the child.
2. States Parties shall give each other assistance in the search for, identification, location and return of
minors who have been removed to another State or held therein. For these purposes, States shall, as
needed, conclude bilateral or multilateral agreements.
3. States Parties whose laws provide for a system of adoption shall establish through their national law
the possibility ofreviewing adoptions, and in particular the possibility ofannulment of any adoption
which has arisen from a forced disappearance. Such adoption may,. however, continue in force if consent
is given, at the time ofthe review, by the childts closest.relatives. In any event, the best interests ofthe
child should prevail and the views of the child should be given due weight in accordance with the age
and maturity of the child.
4. States Parties shall impose penalties in their criminal law on the abduction ofchildren whose parents
are victims of forced disappearance or of children born during their mother's forced disappearance, and
on the falsification or suppression of docwnents attesting to the child's true identity. The penalties shall
take into account the extreme seriousness of these offences.
B5

States Parties shall ensure that the training ofpublic lawen orcement personne an
the necessary education on the provisions of this Convention r---"'---:.---"-----..::::~---!.l------, 5
Article 20
1. Without preju Ice any eg remedies for chal!~'pginK.. e aw
ess of a deprivation of liberty,
States Parties shall guarantee the right to a prompt;simple and effective judicial remedy as a means of
determining the whereabouts or state ofhealth ofpersons deprived of their liberty and/or identifying the
authority that ordered the deprivation of liberty and the authority that carried it out. This remedy, as well
.
as that of ~beas co~s and similar remedies, may not be suspended or restricted, even in the
circumstances descn ed in article 4, paragraph 2, of this Convention.
.

2. In the framework of this remedy, and without prejudice to the powers of any judicial authority, ju<:iges
acting in these cases shall enjoy the power to summon witnesses, to order the production of evidence,

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and to have unrestricted access to places where it may be presumed that a person deprived of liberty
might be found.

(

3. Any delay to or obstruction ofthis remedy shall result in criminal penalties.

I

I

B5

Article 21

1. States Parties shall estabhsh/florms under their national law indicating those officials who are
authorized to order the deprivation of liberty, establishing the conditions under which such orders rna
be given, and stipulating the penalties for officials who do not or refuse to provide information on the
deprivation of liberty ofa person.
2. Each State Party shall likewise ensure strict supervision, in accordance with a clear chain of
command, of all officials responsible for apprehensions, arrests, detentions, police custody, transfers and
imprisonment, and of aU other law enforcement officials.
3. Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions
of the law and by the competent authorities or persons authorized for that purpose.
~~
B5

B5

~. There shall be no restriction upon or derogation from any of the human rights of persons under any
fonn of deprivation of liberty that are recognized, binding upon or in force in any State pursuant to law
conventions, regulations or custom on the pretext that this Convention does not recognize such ri hts 0
that it recognizes them to a lesser extent.
.

(

5. Any form of deprivation of liberty and all measures affecting the human rights of a person under any
form of deprivation ofliberty shall be ordered by, or be subject to the effective control of, ajudicial or
other competent authority.
6. Competent authorities shall have access, to all places where there is reason to believe that persons
deprived of their liberty might be found.
B5

Article

nll....

-J

1. States Parties guarantee that any person deprived of liberty shall be held solely in an officially
recognized and controlled place ofdetention and be brought before a judge or other competent judicial
authority without delay, who will also be informed of the place where the person is being deprived of
liberty.
2. Accurate information on the deprivation ofliberty ofany person and on his or her whereabouts,
including infonnation on any transfer. the identity of those responsible for the deprivation of liberty, and
the authority in whose hands the person has been placed, shall be made immediately available to the
person's counsel OT to any other persons having a legitimate interest in the information.
3. In every place where persons deprived of liberty are held, States Parties shall maintain an official up-

.#' to-date register of such persons. Additionally, they shall maintain similar centralized registers. The
information contained in these registers shall be made available to the persons and authorities mentioned
in the preceding paragraph.
4. States Parties shall identify who is the responsible person in national law for the integrity and
accuracy of the custody record. Without prejudice to the provisions of articles 1, 2 and 3 of this
UNCLASSIFIED

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Page.260f33

Convention, States Parties shall make it a criminal offence for the responsible person, as defined in
national law, to fail to register the deprivation of liberty of any person or to record information which is
or should be known to be inaccurate in the custody record.
5. States Parties shall periodically publish lists that nam~ the places where persons are deprived of
liberty. Such places must be visited regularly by qualified and experienced persons named by a
competent authority, different from the authority directly in charge of the administration ofthe place.

.

Article

231---:-::-;-----:----::-;----:-:--~-1

B5

States Parties guarantee that all persons deprived of liberty shall be released in a manner that allows
reliable verification that they have actually been released and, further, have been released in conditions
in which their physical integrity and their ability fully to exercise their rights are assured.
Article

241

B5

-------------'

1. States Parties guarantee, in all circumstances, the right to reparation for the hann caused to the victims

of forced disappearance.
2. For the purposes of this Convention, the right to reparation comprises restitution, compensation,
rehabilitation, satisfaction, and the restoration ofthe honour and reputation of the victims of the offence
of forced disappearance. The rehabilitation of victims of forced disappearance will be physical and
psychological as welJ as professional and legal.
"

3. For the putposes of this Convention. the tenn "victim of the offence of forced disappearance" means
the disappeared person, his or her relatives, any dependant who has a direct relationship with her or him,
and anyone who has suffered hann through intervening in order to prevent the forced disappearance or
to shed light on the whereabouts ofthe disappeared person.
4. In addition to such criminal penalties as are applicable, the acts referred to in articles 2 and 3 of this
Convention shall render the State liable under civil law, and the State may bring an action against those
responsible in order to recover what it has had to pay, without prejudice to the international
responsibility ofthe State concerned in accordance with the principles ofintemationallaw.

PARTII
Article 25

I
------------------

I. There shall be established a Committee against Forced Disappearance (hereinafter referred to as the
Committee) which shall carry out the functions hereinafter provided. The Committee shali consist of 10
experts of high moral standing and recognized competence in the field ofhuman rights, who shall serve
in a personal and independent capacity. Membership of the Committee is incompatible with any post or
function subject to the hierarchical structure of the executive authority of a State Party. nih experts shall
be elected by the States Parties, consideration being given to equitable geographical distribution and to
the usefulness of the participation ofsome persons having legal experience.
2. The members of the Committee shall be elected by secret ballot from a list ofpersons nominated by
States Parties. Each State Party may nominate not more than two persons from among its own nationals.

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3. Elections of the members of the Committee shall be held at biennial meetings of States Parties
convened by the Secretary"General of the United Nations. At those meetings, for which two thirds of the
States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain
the largest number of votes and an absolute majority of the votes of the representatives of States Parties
present and voting.

'4. The initial election shall be held no later than six months after the date of the entry into force of this
Convention. At least eight months before the date of each election, the Secretary-General ofthe United
Nations shall address a letter to the States Parties inviting them to submit their nominations within three
months. The Secretary-General ofthe United Nations shall prepare a list in alphabetical order of all the
persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to
the States Parties, the relevant intergovernmental organizations and the relevant non-governmental
organizations that enjoy consultative status with the Economic and Social Council.
5. The members ofthe Committee shall be elected for a term of four years. They shall be eligible for reelection ifrenominated. However, the tenn of five of the members elected at the first election shall
expire at the end of two years; immediately after the first election the names of these five members shall
be chosen by lot by the chairman ofthe meeting referred to in paragraph 3 ofthis article.

c.

6. If a member of the Committee dies or resigns or for any other cause can no longer perform his
Committee duties, the State Party which nominated him shall appoint another expert from among its
nationals to serve for the remainder of his term, subject to the approval of the majority of the States
Parties. The approval shall be c~>nsidered given unless half of the States Parties respond negatively
within six weeks after having been informed by the Secretary-General of the United Nations ofthe
proposed appointment.
7. The.United Nations shall be responsible for the expenses incurred by the application of this
Convention.

Article 26
1. The Committee shall elect its officers for a term of two years. They may be re-elected.
2. The Committee shall establish its own rules ofprocedure, but these rules shall provide, inter alia, that:
(a) Six members 'shall constitute a quorum;
(b) Decisions of the Committee shall be made by a majority vote of the members present.

3. The Secretary-General of the United Nations shall provide the necessary staffand facilities for the
effective performance of the functions of the Committee under this Convention.
4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee.
After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of
procedure.

\.

5. With the approval ofthe General Assembly, the members ofthe Committee shall receive emoluments
from United Nations resources on such tenns and conditions as the Assembly may decide in the light of
the importance ofthe functions of the Committee.

UNCLASSIFIED

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Article 27

C'

1. The States Parties shall submit to the Committee, through the Secretary-General of the United
Nations. reports on the measures they have taken to give effect to their undertakings under this
Convention, within one year after the entry into force ofthe Convention for the State Party concerned.
In connection with the submission of the first report of each State Party concerned, the Committee may
make a visit to the territory under the control of that State Party. The State Party concerned shall provide
all the necessary facilities for such a visit including the entry into the country and access to such places
and meeting with such persons as may be required for carrying out the mission of the visit. Thereafter
the States Parties shall submit supplementary reports at the request ofthe Committee.
2. The Secretary-General ofthe United Nations shall transmit the reports to all States Parties.
3. Each report shall be considered by the Committee which may make such comments, observations and
recommendations as it may consider appropriate and shall forward the said comments, observations and
recommendations to the State Party concerned. That State Party may respond with any observations it
chooses to the Committee.

4. The Committee may. at its discretion, decide to include any comments. observations and
recommendations made by it in accordance with panigraph 3 of this article, together with the
observations thereon received from the State Party concerned. in its annual report made in accordance
with article 33. Ifso requested by the State Party concerned, the Committee may also include a copy of
the report submitted under paragraph 1 of this article.
,

( .....
"

Article 28

~J

[

.

. 1. Ifthe Committee receives reliable infonnation which appears to it· to contain well-founded indications,: .
. ',;. '.- thafforced disappearance is being systematically or widely practised in the territory under the controfof ..
. a State Party, the Committee shall invite that State Party to cooperate in the examination of the
infonnation and to this end to submit observations with regard to the information concerned.
2. Taking into account any obserVations which may have been submitted by the State Party concerned,
as well as any other relevant information available to it, the Committee may. if it decides that this is
warranted, designate one or more of its members to make an inquiry and to report to the Committee'
urgently.
3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the
cooperation ofthe State Party concerned. In agreement with that State Party, such an inquiry may
include a visit to the territory under its control. At least one member of the Committee, who may be
accompanied ifnecessary by interpreters. secretaries and experts. shall be responsible for conducting the
missions which include visits to the territory under the control oithe State Party. No member oithe
delegation, with the exception of the interpreters. may be a national ofthe State to which the visit is to
.. be made.
4. The Committee shall notify the Government of the State Party concerned'in writing ofits intention to '
organize a mission. indicating the composition of the delegation. During its mission the Committee may
make such visits as it may consider necessary in order to fulfil its commitments. Ifone of the two parties
so desires, the Committee and the State Party concerned may,. before a mission is carried out. hold .
consultations in order to define the practical arrangements for the mission without de'ay. The
consultations concerning the practical arrangements for the mission may not include negotiations

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concerning the obligations for a State Party arising out of this Convention.

(

5. After examining the report submitted by its member or members in accordance with paragraph 2 of
this article, the Committee shall transmit its report to the State Party concerned, together with its
conclusions, observations and recommendations.

6. After the proceedings have been completed with regard to an in.quiry made in accordance with
paragraph 2, the Committee may, after consultation with the State Party concerned, include the results of
the proceedings together with the conclusions, observations and recommendations in its annual report
made in accordance with article 33.

ArtiCle291'---_~-__

1 B5

A State PartY to this Convention may submit to the Committee communications to the effect that another
State Party is not fulfilling its obligations under this Convention. Communications received under this
article shall be dealt with in accordance with the following procedure:

(a) If a State Party considers that another State party is not giving effect to the provisions of this
Convention, it may, by written communication, bring the matter to the-attention of that State Party.
Within three months after the receipt of the communication the receiving State shall afford the State
which sent the communication an explanation or any other statement in writing clarifYing the matter,
which should include, to the extent possible and pertinent, reference to domestic procedures and
remedies taken, pending or available in the matter;

c.

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months

after the receipt by the receiving State of the initial communication, either State shall have the right to
refer the matter to the Committee, by notice given to the Committee and to the other State;
(c) The Committee shall deal with a matter referred to it under this article only after it has ascertained
that all domestic remedies have been invoked and exhausted in the matter, in conformity with the
generally recognized principles of international law. This shall not be the rule where the application of
the remedies is unreasonably prolonged or is unlikely to bring effective reliefto the person who is the
victim of the violation ofthis Convention;
(d) The Committee shall hold closed meetings when examining communications under this article;

(e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to

the State Parties concerned with a view to a friendly solution of the matter on the basis of respect for the
obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set
up an ad hoc conciliation commission;
(f) In any matter referred to it under this article, the Committee may call upon the States Parties
concerned, referred to in subparagraph (~), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented
when the matter is being considered by the Committee and to make submissions orally and/or in writing;
I

(

(h) The Committee shall; within 12 months after the· date of receipt of notice under subparagraph (b),
submit a report:

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(i) If a solution within the tenns of subparagraph (e) is reached, the Committee shall confine its report to

a brief statement ofthe facts and of the solutions reached;

C

(ii) If a solution within the tenns ofsubparagraph (e) is not reached, the Committee shall confme its
report to a briefstatement of the facts; the written submissions and record of the oral submissions made
by the States Parties concerned shall be attached to the report. In every matter, the report shall be
communicated to the States Parties concerned.

Article 30

1. Any person or group ofpersons W1der the jurisdiction of a State Party or any non-governmental
organization may submit communications to the Committee concerning a violation of the provisions of
this Convention by a State Party.
2. The Committee shall consider inadmissible any communication under this article which is anonymous
or which it considers to be an abuse ofthe right ofsubmission of such communications or to be
incompatible with the provisions of this Convention.

3. Subject to the provisions ofparagraph 2, the Committee shall bring any communications submitted to
it under this article to the attention ofthe State Party to this Convention which is alleged to be violating
any provisions ofthe Convention. Within six months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy that may have been taken by that
State.

c

4. The Committee shall consider communications received under this article in the light of all
infonnation made available to it by or on behalf of the author of the communication referred to in
paragraph 1 and by the State Party concerned. The Committ~e may, ifit deems it necessary, organize
hearings and investigation missions. For these purposes the Committee shall be governed by paragraphs
3 and 4 ofarticle 28.
.
5. The Committee shall not consider any communications from an individual under this article unless it
has been ascertained that:
(a) The same matter has not been,.and is not being, examined under another procedure of international
investigation or settlement;
(b) The author ofthe communication has exhausted aU domestic remedies. This shall not be the rule if,
in the domestic legislation of the State Party, there is no effective remedy to'protect the right alleged to
have been violated, if access to domestic remedies has been prevented, ifthe application ofthe remedies
is unreasonably prolonged or if it is unlikely that application of the remedies would improve the
situation of the person who is the victim ofthe violation.

6. The Committee shall hold closed meetings when examining commwiications under this article.
7. In urgent cases the Committee may request the State Party concerned to take whatever protective
measures it may deem appropriate, when there is a need to avoid irreparable damage. When the
Committee is carrying out its functions ofconsidering communications submitted to it, the request to
adopt such measures and their adoption shall not prejudge its fmal decision.
8. The Committee shall forward its views to the State Party conceme4 and to the individual.

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Article 31

(

1. The Committee may undertake any effective procedure to seek and find persons who have
disappeared within the meaning of this Convention, either on its own initiative or at the request ofa
State Party, an individual, a group ofindividuals or a non-governmental organization.
2. The Committee shall consider inadmissible any request received under this article which is
anonymous or which it considers to be an abuse of the right of submission of such requests or to be
incompatible with the provisions of this Convention. In no case may the exhaustion of domestic
remedies be required.

3. The Committee may, if it decides that this is warranted, appoint one or more ofits members to
undertake an investigation mission and to report to the Committee urgently. The Committee shall be
governed by the provisions ofparagraphs 3 and 4 of article 28 of this Convention.
4. The Committee shall discharge this function in a strictly neutral and humanitarian capacity.

Article 32

(

The members ofthe Committee and persons accompanying them on mission in the territory of the States
Parties referred to in articles 28, 29 and 31 shall be entitled to the facilities, privileges and immunities of
experts on mission for the United Nations as laid down in the relevant sections ofthe Convention on the
.
Privileges and Immunities ofthe United Nations.
"

,

Article 33
1. The Committee shall submit an annual report on its activities under this Convention to the States
Parties and to the General Assembly ofthe United Nations.
2. To ensure that its observations and recommendations are followed up, the Committee shall include in
the report referred to in paragraph 1 of this article the measures taken by the States Parties to guarantee
effective compliance with the observations and recommendations made in accordance with articles 27,
28,29,30 and 31 ofthis Convention.
PART III

Article 34
I. This Convention is open for signature by all States.
2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the

Secretary-General of the United Nations.
Article 35

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This Convention is open to accession by all States. Accession shall be effected by the deposit of an
instrument of accession with the Secretary-General of the U=n"",ite""d::.. o.;:N"",a=tio""n"",s;.::.,
_
Article

361

_

. B5

1. No State can, at the time of signature or ratification of this Convention or accession thereto, make
reservations concerning articles 1 to 24 and article 31 of this Convention, nor make a reservation the
effect of which would inhibit the operation of any ofthe bodies ~stablished by this Convention.

2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any
time, withdraw this reservation by notification to the Secretary-General of the United Nations.

B5

.

Article 37

.

(

1. This Convention shall enter into force on the thirtieth day following the date of deposit ofthe ....
en""w,.,.---instrument of ratification or accession.

2. For each State ratifYing or aeceding to this Convention after the deposit ofthe tenth instrument of
ratification or ac~ession, the Convention shall enter into force on the thirtieth day after the deposit by
such State of its instrument of ratification or accession.
Article 38

(

.
The Secretary-General of the United Nations shall inform all States Members of the United Nations and
all States which have signed this Convention or acceded to it of the following:
(a) Signatures, ratifications and accessions under articles 34 and 35;
(b) The date of entry into force ofthis Convention under article 37.

Article 39
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are
equally authentic, shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General ofthe United Nations shall transmit certified copies of this Convention to all
States.
HOME J SITE MAP J SEARCH I !N.DEX I DOCUMENTS I TREATIES I MEETlNGS I PRESS I STATEMENTS

© Copyright 1996-2000
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland

1 n./01.

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(

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RELEASED IN PART
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lndicatiol1s sllch as "ne"''', "C:OIll/llc!/ll/!/lte{/", etc, lIrc ;lItc"ded
E/CNA/2004/WG22IWP.//Rev./ of 1 december 2003.

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B5

Preamble (new)
The States Parties to the I",es(mt illstnmu!1It].
Recalling the Declaration on the Protection of all Persons from Enforced Disappearances adopted by the General
Assembly of the United Nations ill its resolution 47//33 of 18 December 1992:

COIlscimlJ' of the extreme gravity of enforced disappearance which constitute a crime and. in certain
circumstances, a crime against humanity;
Determined to fight against tile impunity of the crime of enforced disappe.vance ;
Affirming the right of victims to know the truth about the circumstances of an enforced disappearance and the
fate of the disappeared person;
Have agreed as follows;

Article 1
For the purposes of {the present instrltl1lclII) enforced disappearance is considered to be the deprivation of a
person's liberty, in whatever form, committed by agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the Stale, followed by refusal to Dcknowledge the
deprivation of libcrty or concealment of the fate or whereabouts of the disappeared person, which places such
person outside the protection of the law.
Article Ibis (new)
(. . No one shall bc subjected to enforced disap~8rance.

2.

(from former Ill-E) No circumstances whatsoever, whether a stale of war or threat of war, internal political
instability or any other state of emergency; may be invoked as ajustification of enforced disappearance.

Article 2 (modified)
I.

2.

Each State Party shall talce the necessary measures to ensure that enforced disappearance, as defined in
article I ~ .
tonstitutes an offence under its criminal law.
'

B5

Each State Party shan lake equivalent me<lsures when persons or F=::""'::;:..,o;==:o,

B5
B5
B5

Article 2 bis ("ew)

e WI espre<l or systematic practice of enforced disnppeaTllnce constitutes a crime against humanity and
shall aUract the consequences provided for under inlcrnationallaw.
Article 3 (reorganised)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTIIORI1Y: ARCillE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
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2

I.

Each State Party shall take the necessary measures to pursue and punish those who commit 01' contribute to
the commission of an enforced disappearance.

2.

The following shall be punished
a)

I

I.

B5
B5

.he perpetrators of and accessoriesDan enforced disappearan'ce,

h) 100 attemptli to commit an enforced disappearanc1

B5

_

B5
3.

persons who order or lencollrag~
lhc commission or attempted
commission of such an offence, and persons who facilitate its commission or attempted commission by
aiding, abetting or otherwise assisting in it includin
avidin the means or it: com . ..
commission ..

a)

b)

4.

B5

The folloWing shall also be punishe ';=====~~:iLh:th:t.~(:I(:lm:c:.s:
...~------.-J

B5
B5
B5

a superior officer who:
(i)

either knew, or consciously disregarded information which clearly indicated, that subordinates
were committing or about to commit an enforced disappearance, and who

(ii)

failed to lake all necessary and reasonable measures within his or her power to prevent or
repress the enforced disappearance or to submit the matter to the competent authorities for
investigation and prosecution.

(former 6) An order of a superior officer or a public authority may not be invoked as a justification of an
enforced disappearance.

Arock 4
1.

Each Slate Party shall make enforced disappearance punishable by appropriate penalties which take into
account its extreme seriousness.

2.

Each State Party may establish:
mitigating circumstances inter alia for persons who, having been involved in the commission of an
enforced disappearance, effectively contribute to bringing the disappeared person forward alive, or
contribute to elucidating cases of enforced disappearance or identifying the perpetrators of an enforced
disappearance.

a)

b) (complemented) Aggravating circumstances inter alia in the event of death of the victim or the
commission of an enforced disappearance in respect of pregnant women, minors or other particularly
vulnerable persons.

ArticleS (modified)
Without prejudice to article
I.

1..

....J~,

B5

Each State Party which applies a statute of limitations in respect of enforced disappearances shall take the
necessary measures to ensure that the term of limitation for criminal proceedings:
a)

is of long duration and proportionate to the extreme seriousness of the offence;

b)

shall commence from the moment when Lthe offence of enforced disappearance ceases andl the fate of
the disappeared person is established/

/

II

B5

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3

2.

The statute of limitations for criminal proceedings under paragraph 1 shull be suspended in a State Party as
long us any victim of enforced disappearance does not have an efleclivOemedy.

B5

Article 6 (see 3,3)

I

Article 7 (deleted)]
L-J

_---;:========================:::-----'

Article 8 (deleted)II...

..-I

B5
B5

Article 9 (reorganised (wd modified)
1.

Each State Party shalt lake such measures as may be necessary 10 establish its jurisdiction over an enforced
disappearance:
a)

b)

when the offence is committed within any territory under its jUriSdjcti~n or Qn~':~;d a vessel nying its
nag or iln aircraft registered in accordance with its law at the time ofth
',;
when the alleged perpetrator of the offence is one of its nationals

,--------7

B5
B5
B5

2.

3.

Each State Party shall also take the necessary measures to establish its jurisdiction over an enforced
disappeamnce when the alleged perpetrator of the offence is in a territory under its jurisdiction. unless the
State extradites him or her or transfers him or her to another State or surrenders him or her to an
international criminal tribunal whose jurisdiction it has recognised.

(The present inslrument] does not exclude any criminal jurisdiction exercised in accordance with
laws.

Article IOjl...

nationa~

.

B5

....J

I.

Upon being satisfied, after an examination of information available to it. that the circumstances so wlUTant.
any State Party in whose territory a person alleged to have committed an enforced disappearance is present,
shall take him or her into custody or take other legal measures to ensure his or her presence. The custody
and other legal measures shall be as provided in the law of that State but may be continued only for such
time as is necessary to enable any criminal or extradition proceedings to be instituted.

2.

The State Party which has taken the measures referred to in paragmph I shall immediately make an
investigation into the facts. It shall notify the States Parties which may have jurisdiction in accordance with
paragraph I of article 9 of the measures which it has taken under paragraph I of this article. particularly of
the fact that such person is in custody and of the circumstances which warrant his or her detention, the
findings of its investigation and shall indicate to those States whether it intends to exercise jurisdiction.

3.

Any person in custody pursuant to paragraph I shall be. assisted in communicating immediately with the
nearest appropriate representative of the Slate of which he or she is a national. or, if he or she is a stateless
person, with the representative of the State where he or she usually resides.

Article llJ

B5

_

J.

The State Party in the territory under whose jurisdiction a person alleged 10 have commilled any enforced
disappearance is found shall. if it does nol exlradite him or her or transfer him or her to another State or
surrender him or her to nn imemntional criminal tribunal whose jurisdiction it has recognised, submit the
case to its competent authorities for the purpose of prosecution.

2.

These authorities shall take their decision in the same manner as in the case of any ordinary offence of a
serious nature under the law of that State. In the cases referred to in paragraph 2 of article 9, the standards of

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4

evidence required for prosecution and conviction shall in no way be less stringentlhan those which apply in
.
the cases referred to in paragraph I of article 9.

3.

(modified) Any person charged with an ()tTence of enforced disappearance shall be trledj;b~lD...iJoLLo"""""--l
and im artial COllrt, duly established by law, which guarantees the right to a fair tria

4.

(/lew) Any person regarding whom proceedings are brought in connection with an en~ rce
shall be aranleed fair treatment at all stages of the proceedings

B5

B5

Arlicle 12 (modified)
I.

Each Slate Party shall ensure that any person who alleges that someone has been subjected to enforced
disappearance has the right 10 complain to a competent authority, which thoroughly investigates the
complaint immediately and impartially: Appropriate steps shall be taken, where necessary, to ensure that the
complainant, witnesses, the relatives of the disappeared person and their defence counsel as well as those
participating in the investigation are protected against nil ill-treatment or intimidation as a consequence of
the complaint or any evidence given.

2.

Whenever there are reasonable grounds to believe that a persoll has been subjected to enforced
disappearance, any State Party shall refer thc matter to the authority referred to in paragraph I for it to
launch an investigation, even if there has been no formal complaint.

3.

(new) Each State Party shall ensure that thel'-

4.

~thOrity referred to in paragraph I:

a)

has the necessary powers and resource.'1 to conduct the investigation, including tbe power to compel
suspected perpetrators and witnesses to appear before it,

b)

is communicated the necessary information for its investigation;

c)

has access to any place where it is suspected that a disappeared.person is present.

B5

(former 12.6, complemented) Each State Party shall take the necessary measures to prevent and punish acts
of such a kind as to inhibit the progress of investigations. It shall ensure, particul~ly, that persons suspected
of having committed an enforced disappearance are not in a position to influence ·the· progress of the
investigations by means of pressure or aclS of intimidation or reprisal against the complainant. the witnesses,
the relatives of the disappeared person, the defence counsel as well as those participating in the
inve;stigation..

5. (new) The investigation pursuant to the present article shall be conducted in conformity with international
principles for investigations on human ri hls violations, torture, search of disappeared persons, forensic
examination and identification.

B5

Arlicle 13 (modified)
I.

For purposes of extradition between Slates Parties, enforced disappearance shall be considered to be neither
a political offence, nor an offence related to a political offence or an offence prompted by political motives.
Consequently, a request for extrndition based 00 enforced disappeamnce cannot be refused solely because it
concerns a political offence, an offence related to a political offence or an offence prompted by political
motives.

2.

Enforced disappearance shall automatically be included among the extraditable offences in every extradition
treaty concluded between States Parties before the entry into force [afthe present instrument).

3.

States Parties undertake to include tbe offence of enforced disappeamnce among the extraditable offences in
every extradition treaty to be concluded subsequently between them.

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4.

If a State Party which mnkcs extradition conditional on the existence of n trcaly receives l\ request for
extradition from anolher Stnte Party wilh which it has no extradition treaty. it may consider [the I'reseJlt
illsfmmcllf} as the legal basis for extrndition in respect of enforced disappearance.

5.

Any State Party which does not make extradition conditional on the existence of a Ireaty ilhall recognise the
offence of enforced disappearance as extraditable.

6.

Extmdition shall. in all cases, be subject 10 the conditions provided by the law of the requested State Party or
by applicable extradition treaties, including, inter alia, conditions in relution to the minimum penalty
requirement for extradition and the grounds upon which the requested State Party may refuse extradilion or
subject extradition to conditions.

7.

No provision [of fhe preSe1lf illstrutllcllfj shall be interpreted as imposing nn obligation on the requested
State Party to extradite if that State has serious grounds to believe that the request was put forward for the
purpose of prosecuting or punishing a person on account of his or her gender, race, religion. nationality,
ethnic· origin or political opinions. 01' that to allow the request would cause harm 10 that person for anyone
of those reasons.

Article 14 (modified)
I.

States Parties shall provide one llnother the greatest measure of legal assistance in connection with any
criminal investigation or proceedings brought in respect of enforced disappearance, including the supply of
all evidence at their disposal that are necessary for the proceedings.

2.

Such legal assistance is subject to the conditions provided by the domestic law of the requested State Party
or by applicable treaties on mutual legal assistance, including, particularly, concerning the grounds on
which the requested State Party may refuse to provide legal assistance or subject such assistance to
conditions.

Article 15 (modified)
States Parties shall co-operate with one another and shall provide one another the greatest measure of
assistance with a view to assisting victims of enforced disappearance, and in searchinglQr,IOCa1t'
releasing disappeared persons and, in the event of death, in their exhumation, identification and
fe5Iil:~ of their remains.

B5

Article IS bis (former 21)
I.

No State Party shall expel, return ("refouler") or extradite a person to another State where there are
substantial grounds for believing that he/she would be in danger of being subjected to an enforced
disappearance.

2.

For the purpose of determining whether there are such grounds. the competent authorities shall take into
account all relevant considerations, including, where applicable. the existence in the State concerned of a
consistent patter~ of gross. flagrant or mass violations of human rights or of humanitarian law.

Article 16 (reorga"ised and modified, see 16 bis below)
I.

Each State Party shall, under its law,
n)

indicate those officials who are authorised to order deprivation of liberty;

b)

establish the conditions under which such orders may be given;

c)

guarantee that any person deprived of liberty shall be held solely in an officially recognised and
controlled place;

d) guarantee

accessD~f the judicial authorities to places of deprivation of liberty;

B5

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6
e)

2.

guarantee that any person deprived of liberty, in all circumstances, shall have the right to bring
proceedings before :l eourt which shall rule without delay on the lawfulness of the deprivation of Ii berty
ancl order his or her release if that deprivation of liberty is unlawful.

Each State Party shall compile. and maintain one or several official up-to-date registers of persons deprived
of liberty. The information contained in these registers shall include at lellst the following:
a)

the identity of the person deprived of liberty,

b)

the authority having decided the deprivation of liberty.

c)

the authority controlling the deprivation of liberty.

d)

the date and time of lldmission in the place of detention and the authority responsible for the place of
detention,

e)

The date lind time of liberation or transler to another place of detention. the destination and authority in
charge of the transfer.

Arlick 16 bis
I.

Each Stale Partyr
Ishall guarantec the person deprived
of liberty. his or her relattveli. thClr legal representatlves. thelr counsel. and any person authorised by them.
as well as any person able to claim a legitimate interest access, as a minimum. to the following information:
a)

the authority to which the person has been handed over;

b)

the authority having decided the deprivation of liberty;

c)

the authority controlling the person deprived of liberty;

d)

the whereabouts of the person deprived of liberty, including in case of transfer;

e)

date and place of release;

f)

state of health and, in the event of death, circumstances and causes of the death.

2.

Appropriate measures shall be taken. where necessary. to ensure the protection of the persons mentioned in
paragraph 1 as well as the persons participating in the investigation again!!t all ill-treatment; intimidation or
any sanction on the grounds of the search of information concerning 1I person deprived of liberty.

3.

(new) In order not to jeopardise the privac of the rsons concerned. the information transmitted
to paragraph I of the present article shall '"':;--,--;--;:7----;-"'7"'~_::_:::_'""":"'...,.----===LL.,
!lI:laU-_oot be used for other purposes thtUl the search of the

B5

B5
B5

Arlicle 17
Without prejudice to consideration of the lawfulnes.~ of a deprivation of libeity. States Partics shall guarantee
to the relatives of the person deprived of liberty or of a disappeared person. their legal representatives. their
counsel and any person authorised by the person depriVed of liberty or the disappeared person or by his/her
relatives. as well as any other person able to claim a legitimate interest the right to a prompt and effective
remedy as a means of obtaining without delay the information referred to anicle 16 bili. Thi!> right to a
remedy may not be suspended or restricted in any circumstances.

Arlicle 18 (complemented)
Each State Party Sh;lll take the necessary measures to ensure that the release of persons shall proceed in a
manner that allows reliable verification that they have actually been released. Each State Pany shall also take

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7

the necessary measures so Ihal the physiclll integrity of lill such persons lind their ability to exercise' fully
their righls arc assured at the time of release. withoUl prejudice to the obligations to which such persons may
he subject in accordance with Ihe law.

Article 19

Each State Party shall take the necessary measures 10 prevent nnd punish the following actions:
a) delaying or obstructing the remedy referred to in article 17;
0)

failure to the obligation to register every deprivation of liberty and registration of information which the
offici,,1 responsible of the register knows or should known to be inaccurate;

c)

refusal by an official to provide information on the deprivation of liberty of n person, or the provision of
inaccurate information, even though the legal conditions for this information to be provided have been
fulfilled.

Article 20 (compleme1lted)
I.

Each State Party shall ensure that the training of law enforcement personnel, civil or military, medical
personnel. public officials and other persons who may be involved in the custody or treatlJ!entof any person
deprived of liberty shall include the necessary education and information on the provisions [of tlU! present
il/strument] , in orderto:
a)

prevent the involvement of these officials in enforced disappearances;

b) draw attention to the importance of prevention an,d investigations concerning enforced disappearances;
e) ensure that the urgent need to resolve cases of enforced disappearance is acknowledged.
2.

Each State shall prohibit order.; or inslructions commanding, authorising or encouraging enforced
disappearance. Each Slate Party shall guarantee that a person refusing to obey such order will not be subject
to sanction.

3.

Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph 1 who
have reasons to believe that an enforced disappearance has occurred or is planned communicate the matter
to their superior authorities and. when necessary, to competent authorities or organs with reviewing or
remedial power.

Article 21 (see IS his)
Arlicle 22 (modified D1Id tomplemented)

I.

For the purposes of [/he prcsel/I inslrumelltJ, "victim" means the disappeared person and any natural person
who has suffered direct harm as a result of that disappearance.

2.

Each State Party shall take the necessary measures so that any victim knows the truth concerning the
circumstances of the enforced disnppearance nnd the fate of the disappeared person. It shall, in particular,
take the necessary measures to search for, locate and release disappeared persons and. in the event of death,
return the human remains.

3.~c.ILS.t;~~l:talJ...ellaIllIl1eJtlI~~~~---:-;-_--:-:-~-:;--;- _ _~.,....,.,---J
rompt. fair and adequate reparation for the hann caused to victims of

B5

~=-:-:-:r:T"'-:::-::==c::-::---_.....I

4.

The right to obtain reparation referred to in paragraph 3 includes linlegrall compensation for material and
non-material damage. It may also include, in particular:
a)

restitution,

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8

5.

b)

rehabilitation.

c)

satisfaction,

d)

restoration of honour and repul.1tion.

Without prejudice to the obligation to continue the investigation until the fate of the disappeared person is
elucidated, each State Party shall take the necessary measures with regard to the legal situation of the
disappeared persons who's fate has not been elucidated and of their relatives in 'fields such as' social
.protection, financial mnllers, custody of children and proP7rty rights.'

Article 23 (complemented)
I.

2.

Each State Party shall take the necessary measures to prevent and~

11Illh;!1 iA 1\ cril'AillAI

€El1ll1 :.

a)

the abduction or appropriation of children victims of enforl;ed disappearance, children whose father or
mother is victim of enforced disnppcarnnce or children born during the detention of their disappeared
mother;

b)

the falsification or suppression of documents attesting to the tme identity of a child referred to in
subparagraph (a).

B5

Each State Party shall take the necessary measures to seareh for and identify children referred to in
subparagrnph (ll) and (b).

Article 24
State Partiedll7l'ant each other assistance in the seorch for, the identification and the location of children
referred to i~·23.

B5

Article 2S
I.

When a child who has been abducted or appropriated in the circumstances described in article 23, paragraph
(a), is found on the territory of a State party, the question of the child's return to his or her family of origin
shall be resolved either under the domestic law of that State party, or under the bilateral or multilateral
agreement which that State has entered into with another State in which the family of origin lives.

2.

In all cases. the best interests of the child are a primary consideration, and a child who is capable of
judge,ment shall have the right to express his or her views freely and to have them given due weight in the
light of his or her age and level of maturi~.

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Article 0 (new)
I.

A (mol/itori/l.~ body] shall he

e.~tablishcd 10 assist.

as appropriate. ill eltSltft' the implcmcntlllion

Jlm!,~el/t i/lS1I'l/llu!/I11 t1~s~-_by State Parties of their commitments. IA J110nilnri'\!l\

2.

When carrying oullhcir While t:!\ereising their mandatr-

[mo/litoring bo(~yl shall be enLitled Lo privileges and iml~

or the
B5

......~.
mell~~.b~;rdo:f:~e"

B5
B5

:=J

in the Convention on Privileges and Immunities of tbe United N-:at.,-io-n-s.-----3.

Each Stale Party shall undertake to co-operate with the Imol/;Iorillg IlIl(M and to grunl llssistance to its
members in the exercise of their mandate.

Article /I-A (modified)

1.

Each State Party shall submit t~~:..w==~...l~)O~~I·l, through the Secretary-General of the United Nations,
II report on the measures take
hi gi'te erreelle its undertakings under [the presell!
instrument], within one year ntter e entry IOto force [of the presellt instrument! in respect of tbe State
concerned.

2.

The Secretary-General of the United Nations shall transmit the reports tQ all States Parties.

3:

Each report shalf be considered by [the monitoring b~y]. which may make such comments, Observations,
recommendations and warnings as it considers appropriate. The State Party concerned shall receive
communication of such comments, observations, recommendations and warnings, to which that State may
respond. on its own initiative or at the request [of the monitoring body].
.

B5

Article 11·B (modified)
I.

Eaeh State Party or the relatives of a disappeared person. their legal representatives, their counsel, and any
person authorised by them, as well as any person able to claim a legitimate interest may submit a request to
[the monitoring body) to seek and find a person who has disappeared within the meaning of article I.

2.

Should [the monitori/lg body] consider that a request submitted under paragraph J is not manifestly
unfounded. that it does not constitute an abuse of the right of submission and Ihat it is not incompatible with
the provisions [of the present instrumellt} [the mOllitorillg body] shall request any State Party to provide
information on the situation of that person, within a time-limit set by [the monitoring body).

3.

B5
L---:,_~-:-...,..;--_...,......,..,.-_-.,,:----:-.---:,.... _ _.,...

,......_ _---'O that 'tate.
e
monitoring hody] may also L*~J( urgel Ihal State to take appropriate measures and to report to it on
those meaSures, within a time-limit set by [the monitorillg body].

4.

[The /IIfJ/litorillg body) shall establish its conclusions and forward them to any State Party which has been
requested to provide information and to the author of the request referred to in paragraph 1.

5.

The procedure under this article is confidential.

B5

B5

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10

I.

If [rhe mO/litoring lmdyJ considers that a visit to the territory of a State Party under whose jurisdiction a
disappeared person could be is essential in order to respond to the request submitted to it in llccordance with
Article II-B, [the monitoring b()(~)') may request one or more of its m~mbers to undertake an investigation
mission and to report back without delay. The member or members lofrhe monitoring body] conducting the
mission may be accompanied if necessary by interpreters. secretaries and experts. No member of the
delegation. with the ex.ception of the interpreters. may be a national of the Stale Party to which the visit is to
be made.

2. . [The monitoring body] shall notify the State Party concerned in writing of its intention to organise an
investigation mission, indicating the composition of the delegation. The State Party shall inform [the
monitoring body) without delay of its agreement or opposition to the investigation mission in the territory
over which it has jurisdiction.
3.

4.

5.

If the State Party agrees to the investigation mission, it shall provide [,he moniioring body] wit]1 all the
necessary facilities to enable the mission to be carried out. [The mOIli/ori/lK body] mllY, inter alia:
a)

make such visit!> as it may consider necessary to search for and find the person who has disappeared;

b)

make contact freely with any person whom it believes may provide useful information on the fate of the
person who has disappeared;

c)

have the person who has allegedly disappeared brought to it and discuss with him or her in private.

[The monitoring body] shall inform the following of the findings of the investigation mission:
a)

the State Party in whose territory the investigation mission was carried out;

'b)

the author of the request referred to in paragraph I of article II-B.

The procedure under this article is confidential.

Article ll-C bis (new)
1.

n~ir

considers_~ a communication presented by the relatives of a disappeared person,
legal representatives, their counsel, and any person authorised by them. as well as any person able to
claim a legi~mate inteTS! nlle"iM grave }aChes in the implementlltion of the commitments taken under
the [present I/lstrumenJ
nless
The monitoring body}

a)

the communication lacks sufficient motivation or is obviously unfounded;

b)

the same matler is being examined under another procedure of international investigation or settlement;

c)

the complainant has not exhausted all available effective domestic remedies.

2.

[f the lthe monitoring hoeM assesses that the communication fulfils the conditions under paragraph ]. [the
monitoring body] transmits the communication to the State Pany concerned and requests this State Party to
provide observations Bnd comments within a time-limit set by the [monitoring body].

3.

On the basis of the answer of the StlitePatty, [the monitoring body] may decide:

4.

a)

to close the matter of the communication;

b)

to continue its examination;

c)

to make a recommendation to the State Party.

B5
B5

The procedure under the present article comes to an end when the (monitoring body] communicates the
conclusions of its investigation to the State Party and to the author of the communication.

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II

5.

The procedure under this IIrticlc is confidential.

Article

[J-e ter (flew)

If the [molliIOr;1l8 body) receives reliable information which appears to it to contain well-founded indication
chat enforced disnppeamnce is being practised in 11 systematic or general manner in the territory of a Stnte
Pnrty, the [moll;lOrbrg bO(~I'J may seize lhe Secretary General of the United Nations, after having enquired
with the State Party concerned about any peninent information and the measures taken to put ali end
immediately to such practises.
Article lJ-D (ilJtegrated in Tl-O§2)
Article /l-E (complemell/ed)

I.

[The monitoring bO«I') has competence solely in respect of deprivations of libeny which commenced after
the entry into force (of this itls/rument].

2.

Should n State become party 10 [this ills/rumenf] after its entry into force, the obligations of that State
towards [the mC)/fito/'illg body] concern only deprivations of liberty which commenced after thc entry into
force [of this instrument) in respect of the State concerned.

3.

(new) ElIch State Party may at any time declare that, in its own respect. it recognises that the [monitoring

body) has competence in respect of enforced disappearances which commenced before entry into force of
the fpresellt illstrumelll].

Article ll-F (modified)
I. The [monitoring body] shall submit an annual report on its activities [under lite presellt instrument] to the
States Parties and to the General Assembly of the United Nations.
.

2. (lfe....) If. in the procedures under articles II-B and lI-C bis, a State Party concerned obviously refuses to cooperate or if the procedures yield to no effective resUlt, the (mollitorilfg bOlM may decide to make an
observation public, with regard to the matter or the situation at stake.
.
3.

(new) The State Party concerned shall be informed in advance of the publication of an observation under.

paragraph 2 of the present article. This observation shall be published together with the answers, comments
or observations transmitted by the State Party within the time-limit set by the [monitQring body].

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PART III

Article 111 -0 (former 2.2)
[The prrtsellt instrument] is without prejudice to ilny other international instrument or national legislation that
does or may contain provisions of broader application.

Article lII·O bis (IIew)
Personal data, including medical or genetic data, which are transmitted in the framework of the search of a
disappeared person shall not be used for other purposes than that of the search of the disappeared person.
Article Ill-A

..

(Thrt pre.rent instrument] is open for signature by [... ].

2.

[the present illstrumcllt) is subject to ratification. InstrumentS of ratification shall be deposited with the
Secretary-General of the United Nations.

3.

[The prase/It illStrument) is open to accession by [... ). Accession shall be effected by the deposit of an
instrument of accession with the Secretary-General of the United Nations.

Article Ill-B
l.

(The present instrument] shall enter into force on the thirtieth day after the date of deposit of the [Xth]
instrument of ratification or accession.

2.

For each State ratifying [the present in.rtrume7ll] or acceding to it after the deposit of the (Xth) instrument of
ratification or accession, [the preselU illStrumem] shall enter into force on the thirtieth day after the date of
deposit of its own instrument of ratification or accession.

Article 111·C
The Secretary-General of the United Nations shall infonn all States Members of the United Nations and all
Slates which have signed r the present instrument) or acceded to it of the following:
a)

Signatures. ratifications and accessions under article III-A;

b) The date of entry into force of [the present instrument] under article lJI-B.

Article llI-D
The provisions of [the present instrument] shall apply, without limitation or exception, to all parts of federal
Slates.
Article 111-D his (new)

I.

Any State. upon signature, ratification or accession. may declare that [the present instrument] will be
extended to any territory for which it is responsible with regard to international relalions. Such a
declaration will take effect when [the present instrument] enters inlo force for the State concerned.

2.

At any time, such an extension may be notified to the Secretary General of the United Nations and will
take effect (...) days after it hAS been received by the Secretary General.

Article 111-E (integrated in 1 his, paragraph 2)
Article Ill-F

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[The presenl instrument) is without prejudice to the provisions of international humanitarian law, including the
obligations of the High Contracting Parties to the four Geneva Conventions of 12 August 1949 and the
Additional Protocols thereto of 8 June 1977, or the option available to any State to authorise the International
Committee of the Red Cross to visit places of detention in cases for which international humanitarian law does
not provide.

Article llI-G
I.

Any State Party 10 [the present instrument) may propose an amendment and me it with the SecretaryGeneral of the United Nations. The Secretary-Genera! shall thereupon communicate the proposed
amendment 10 the States Parties to [the presenl instrument) with a request Ihat they notify him or her
whether they favour a conference of States Parties for the purpose of considering and voting upon the
proposal. In the event that within four months from the date of such communication at least one thii'd of the
States Parties favours such a conference, the Secretary-General shall convene the conference under the
auspices of the United Nations. Any amendment adopted by a majority of two thirdS of the States Parties
present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for
acceptance.

2.

An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds
of the State Parties to {the present instrument] have accepted it in accordance with their respective
constitutional processes.

3.

When amendments enter into force, they shall be binding on those States Parties which have accepted them,
other States Parties still being bound by the provisions of (the present instrument] and any earlier
amendments which they have accepted.

I'

Article llI-H
I.

[The present instrument], of which the Arabic, Chinese, English, French, Russian and Spanish texts are
equally authentic, shall be deposited with the Secretazy-General of the United Nations.

2.

The Secretary-General of the United Nations shall transmit certified copies of [the present instrUl1U!n/) to all
States.

UNCLASSIFIED
FP1101

'. RELEASED IN PA.RT
. B5
UNCLASSIFIED
21/06/04 - Traduction de courtoisie

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Indications such as "new", "complemented", etc, are intended to ease the cOl11pari:mn with

document EICNAI2004IWG22IWP.lIRev.'
0/7
.
. december 2003.

GEm

Preamble (new)
The States Parties to the [present illstl'l.lmentll

I

_

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Recallin~ the Declaration on the Protection of all Persons from Enforced Disappearances adopted by the
General Assembly of the United·Nations in its resolution 47/133 of 18 December 1992;
.

Cons~iolfs of the extrem~~:H\VI~~~ced disappearance which constitu Dcrime and, in
certam CIrcumstances, a cnHle agul11st humamty; •
.e

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Isappearance and

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Have agreed as follows:

Parti

B

Article J
For the purposes of {!e present instrw!!A!j.t.renforced disappearance is considered to be the deprivation
of a person's liberty in whatever f0!!!lTcommitted by. agents of the State or by persons or groups of
persons acting with e authorization, support or acquiescence of the State, followed by refusal to
acknowledge the deprivation of liberty or concealment of the
or whereabouts of the diS3DDcarrd
person, which places such person outside the protection of the law _
._

frte

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Article Ibis (new)
I. No one shall be subjected to enforced disappearance.

2. ({romformeQ) No circumstances whatsoever, whether a state of war or threat of war, internal
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political instability or any other state of emergency, may be invoked as a justification of enforced
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disappearance.
,..---------....
fAUll.ll:.-u..,(modified)creates stand-alone crime and number 2 addresses non-state actor~'

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Each State Party shall take the necessary measures to ensure that enforced disappearance, as define
in article I, constitutes an offence under its criminal law.
2. Each State Party shall take equivalent measures when persons or groups of persons acting without

the_authorization, support 01' acquiescence of the State are responsible for dealin s defined in art'c
1 -_ _- - '

~!1icle 2 bi§.

(new)

The widespread or systematic practice of enforced disappearance constitutes a crime
and shall attract the conse' llences rovicted for under intemationalla

ach State Party shall take the necessary measures to pursue an
contribute 0 the commission of an enforced disappearance.

a ainst humanit'

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or

2. The following shall be pUnJS e :
ED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER .
.
DATE/CASE ID: 02 JUL 2009 200706444

UNCLASSIFIED
FP1102

UNCLASSIFIED
a) the perpetrators of and accessories in an enforced disappearance.
b) the attempt to commit an enforced disappearance,
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c) the conspiracy to commit an enforced disappearance,
3. The following shall also be punished:
a) persons who order or encourage the commission or attempted commission of such an
offence, and persons who facilitate its commission or attempted commission by aiding,
abetting or otherwise assisting in it, including providing the means for its commiSSIOn or
attempted commiSSIOn, sflall be punished,
b) a superior officer who:

1---------------

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(i)
either knew, or consciously disregarded information which clearly indicated, that
subordinates were committing or about to commit an enforced disappearance, and who
(ii) failed to take all necessary and reasonable measures within his or her power to
prevent or repress the enforced disappearance or to submit the matter to the
competent authorities for investigation and prosecution.
\

4. (former 6) An order of a superior officer or a public authority may not be invokeCas
Dustifica n of an enforced disa earance.
-,

Article4 -

'--

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~
5

--J

J. Each State Party shall make enforced disappearance punishable by appropriate penalties which

take into account its e~x~tr~e:!m~e~se~r~io~u!§sn!!!e~s~s:....--~~-~-_"-:"-':"'--':-_--~--------l

2. Each State Party

m'J.!a~~~.2.!..!LI

a)

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b)

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Without prejudice to article 2 bis, 1

I

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_

I. Each State Party which applies a statute of limitations in respect of enforced disappearances shall
of limitation for criminal proceedings:

....-_-tak.t~Le...IleQessm~eal:i.UIl~1l.falSl.u:e.1h;lltJ.Qeterm

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a) is pf Ion,Kduration an :Qro:Q0rtJOnate

0

e extreme seriousness of the offence;

me

b) shan commence JroHl
rrlOmellllhen the offence of enforced disappearance
the fate of the disappeared person is established.

~eases and

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2. The statute of limitations for criminal proceedings under paragraph 1 shall be suspended in a State
Party as long as any victim of enforced disappearance does not have an effective remedy.

Article 6 (see 3,~)
Article 7 (deleted)

'UNCLASSIFIED
FP1103

UNCLASSIFIED

B

Article 8 (deleted)
Article 9 (reorganised alld modified)
I.

Each State Palty shall take such measures as may be necessary to establish its jurisdiction over
an enforced disappearance:
a) when the offence is committed within any territory under its jurisdiction or on board a
vessel flying its flag or an aircraft registered in accordance with its law at the time of the
facts;
b) when the' alleged perpetrator of the offence is one of its nationals or a stateless person
.
habitually residing in its territory;

c) when the disappeared person is one of its nationals and the State deems it a
so.

ro riate to do "

Each State Party shall also tuke e e .
.
an enforced disappearance when the alleged perpetrator of the offence is in a territory under
its jUlisdiction, unless ~he State extrad~testlll~ or hepo!' tran,sfers him or .he! t? ~not.her
State )or surrenders hIm or her to an international cnmmal tnbunal whose .JUriSdictIon It has
recognised.
I"
.

I

3.

{The present instrument} does not excludd any crIminal JUrIsdlctron exercised in accordance
with national laws.

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Article 10

1. Upon being satisfied, after an examination of information available to it, that the
circumstances so warrant, any State Party in whose telTitory a person alleged to have
committed an enforced disappearance is present,shal1 take him or·her into custody or take
other legal measures to ensure his or her presence. The custody and other legal measures
shall be as provided in the law of that State but may be continued only for such time as is
necessary to enable any criminal or extradition proceedings to be instituted.
The State Party which has taken the measures referred to in paragraph 1 shaH
immediately make an investigation into the facts. It shall llQtify.th~_§tates ~.w:i~s which may
have jurisdiction in accordance with paragraph 1 of article 9 of the measures which it has
taken under paragraph I of this article, particularlY·9i.the_.faG.UI.:mLS!.!.@_P.~r§Qnj~ in c~~tody
and of the circumstances which warrant his or her detention, the fjpdings__Qf..its_
investi ation and shall indicate to those States whether it intends to exercise ·urisdiction.

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J. . The State Party in the territory under whose jurisdiction a person alleged to have committed
any enforced disappearance is found shall, if it does not extradite him or her or transfer
him or her to another State or surrender him or her to an international criminal tribunal
whose jurisdiction it has recognised, submit the case to its competent authorities for the
purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State. In the cases referred to in
paragraph 2 of article 9, the standards of evidence required for prosecution and conviction

UNCLASSIFIED
FP1104

UNCLASSIFIED
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shall in no way be less stringent than those which apply in the cases referred to in paragraph 1
of article 9.

3. (modified) Any person charged with an offence of enforced disappearance shall be tried by
an independent and impartial COUlt, duly established by law, which guarantees the right to a
fair trial.

4. (new) Any person regarding whom proceedings are brought in connection with an enforced
disappearance shall be guaranteed fair treatment at all stages of the proceedings.
Article 12 (modified)

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at any person w 0 a eges a 'so eone- as b~91 s~bjected
to enforced disappearance has the right to complain to a competent authorit~, wbich
thoroughly investigates t.llf complaint immediat.ely and ~mpartiaJ1y. ~ppr~p!!~!-C-steps shall be
I
taken, where necessary, to' ensure that the complamant, wttnesses, the relatives offie
, D i s a p p e a r e d person and therr defence counsel as well as those participating in the
~
.nvestigation are protectea7against all ill-treatment or intimidation as a consequence of the
omplaint or ctriYevidenceJgiven.

1. Each State Party shall ensure

i

i

I,
I

B5

•

2. Whenever there are reasonable grounds to believe that a person has been su~jected to
enforced disappearance, any State Party shall refer the matter to the authority referred to in
paragraph 1 for it to launch an investi alion, even if there has been no formal complaint.

3. (new) Each State Partyis a ensure

,

a

B5

e,au on V re erred to in paragraph 1:

I

I

B5

a) has the necessary powers and resources to conduct the investigation, including the power
to compel suspected perpetrators and witnesses to appear before it,

B5
(former 12.6, complemented) Eac
e a y s a a e e necessary measures to prevent
and punish acts of such a kind as to ~the progress of investigations. It shall ensure,
particularly, that persons suspected of having committed an enforced disappearance are not
in a position to influence the progress of the investigations by means of pressure or acts of
intimidation or reprisal against the complainant, the witnesses, the relatives of the
.
disappeared person, the defence counsel as well as those participating in the
investigation..

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(new) The investigation pursuant to the present article shall be conducted in conformity with

international principles for investigations on human rights violations, torture, search of
disappeared persons, forensic examination and identification.
(!

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Article 13 (modi,fiedJI

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1., For purposes of extradition between States P.arties, enforced disappearance shall be
considered to be neither a political offencef!!9t,an offence related to a political offence"7<i':""a....
n - - - - - -1
offence prompted by political motives. Consequently, a request for extradition base on
enforced disappearance cannot be refused solely because it concerns a political offence, an
offence related to a political offence or an offence prompted by political motives.
Enforced disappearance shall automatically be included among the extraditable offences in
very extradition treaty concluded between States Parties before the entry into force [of the

B5

UNCLASSIFIED
FP1105

UNCLASSIFIED
B5
present instrument}.

3. States Pmties undertake to include the offence of enforced disappearance among the
extraditable offences in every extradition treaty to be concluded subsequently between them.
4. If a State Party which 1l1akes extradition conditional on the existence of a treaty receives a
request for extradition from another State Party with which it has no extradition treaty, it
may consider [the present instrument] as the legal basis for ex.tradition in respect of enforced
disappearance.
5. Any State Party which does not make extradition conditional 011 the existence of a treaty shall
recognise the offence of enforced disappearance as extraditable.
6. Extradition shall, in all cases, be suqject to the conditions provided by the law of the requested
State Party or by applicable extradition treaties, including, inter alia, conditions in
relation to the minimum penalty requirement for extradition and the grounds upon which the
requested State Party may refuscextradition or ~!Jqiect extradition to conditions.
~.

t.........

.

\ ..... ,·jut.

7. No provision [of the presellt instrument] shall be interpreted· as imposing an obligation on
the requested State Party to extradite if that State has serious grounds to believe that the
request was put forward for the purpose of prosecuting or punishing a person on account of
his or her gender, race, religion, nationality, ethnic origin or political opinions, or that to
.
allow the request would cause harm to that person for anyone of those reasons.

,Article /4

(nwd~fied"

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\

1. .States Parties shall provid6 one another the·g~!Jt~st.measureof Jegal assistance in
'connection with any criminal investigation or proceedings brought in respect of enforced
disappearance, including the supply of all evidence at their disposal that are necessary for the
proceedings.
2. Such legal assistance is su~ject to the conditions provided by the domestic law of the .
requested State Party or by applicable treaties on mutual legal assistance, including,
particularly, concerning the grounds on which the requested State Party may refuse to
provide legal assistance or subject such assistance to conditions.

I

Article 15 (modified)

~

I

States Parties shall co-operate4ith one another andlsfiall provIde one another the greatest
measure of assistance with a view to assisting victims of enforced disappearance, and in
searching, locating and releasing disappeared persons and, in the event of death, in their
exhumation, identifica' a restitution of their remains.

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rticle 15 his (fanner 21)
I. No State Party shall expe ,
~ ou er
where there are substantial grounds for beJieving that he/she would be in danger of
being subjected to an enforced disappearance.

For the purpose of determining whether there are such grounds, the competent authorities
shaH take into account all relevant considerations, including, where applicable, the existenc
in the State concerned of a nsistent
rn of gross, flagrant or mass violations of human
ri hts or of humanitarian la

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and mo#fied, see 16 bis below

1. -Each State Party shall, under its law,

UNCLASSIFIED
FP1106

UNCLASSIFIED

a) indicate those officials who are authorised to order deprivation of liberty;

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b) establish the conditions under which such orders may be given;
c) guarantee that any person deprived of liberty shall be held solely in an officially
....---------,recognised and controlled place;
guamntee access of the judicial authotities to places of deprivation of liberty; B5
e) guarantee that any person deprived of liberty, in all circumstances, shall have the
right to bring proceedings before a court which shall rule without delay on the lawfulness
of the deprivation of liberty and order his or her release if that deprivation of liberty is
unlawful.
2. Each State Party shall compile an9Jnaintain one or several official up-to~date registers of
persons deprived of liberty. The(!i}fQnn~tiQii~contained in these registers shall include at least
the following:

I

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a) the identity of the person deprived of liberty,

b) the authority having decided the deprivation of liberty,
c) the authority controlling the deprivation of liberty,
d) the date and time of admission in the place of detention and the authority responsible
for the place of detention,
e) The date and time of liberation or transfer to another place of detention, the destination
and authority in charge of the transfer.

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rt/de J6 his,

1. Each State Party shaJ)lguarantee the erson eprived of liberty, his or er re atlye§,
their I~al retresentatives. thllli counsel, an any person authorised by them, as-well as
._
rson ab to claim a legitimate Interest ~, as a minimum, to the foJ]~
.-. mfonnatlo
.

---

e

a) the authority to which the person has been handed over;
b) the authority having decided the deprivation of liberty~
c) the authority controlling the person deprived of liberty;
d) the whereabouts of the person deprived of liberty, including in case of transfer;
e) date and place of release;
f)

state of health and, in the event of death, circumstances and causes of the death.

2. Appropriate measures'shall be taken, where necessary, to ensure the protection of the persons
mentioned in paragraph I as well as the persons participating in the investigation against all
ill-treatment; intimidation or any sanction on the grounds of the search of information
concerning a person deprived of liberty.

3. (new) In order not to jeopardise the privacy of the persons concerned, the information

UNCLASSIFIED
FP1107

UNCLASSIFIED
transmitted pursuant to paragraph I of the present article shall be adequate and pertinent with
respect to the purpose pur~ued and shall not be used for other purposes Dhe search of the

pel'son deprived of Iibelty'l

I

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Article /7

D

Without pr~judice to consideration of the lawfulness of a deprivation of liberty, State..<; Parties
shall guarantee to the relatives of the person deprived of Iibel1y or of a disappeared person,
their legal representatives. their counsel and any person authorised by the person deprived of
liberty or the disappeared person or by his/her relatives, as well as ~my other person able to
claim a legitimate interest the ri htto' . RLWd ~ffective rem~ as a means of
. r ' W.n..,referred to afITCle 16 6is.""Tnls right to a remedy
obtaining without cL~!gy,
may not besuspended or restricte in any circumstances.--····_·..__ ··· ..
.

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Article /8 (complemented)

Each State Pm1y shall take the necessary measures to ensure that the release of persons shall
proceed in a manner that allows reliable verification that they have actually been released.
Each State Party shall also take the necessary measures so that the physical integrity of all
such persons and their ability to exercise fully their rights are assured at the time of release,
without pr~iudice to the obligations to which such persons may be su~iect in accordance with
the law.
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elaym or obstructing the remedy referred to in article 17;

db

failure the obligation to register every deprivation of liberty and registration of
!nformatton which the official responsible of the register knows or sho~to be
maccurate;

L-J

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refusal by an official to provide information on the deprivation of liberty of a person, or the
provision of inaccurate information, even though the legal conditions for this information
to be provided have been fulfilled.
Arrn:/dO (complemented)

1------------------,1

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1. Each State Party shall ensure that the tramlng of law enforcement personnel, civil or
military, medical personnel, public officials and other persons who may be involved in the

custody or treatment of any person deprived of liberty shall include the necessary education
and information on the provisions (of the present instrument] , in order to:
a) prevent the involvement of these officials in enforced disappearances;
b) draw attention to the importance of prevention and investigations concerning enforced
disappearances;
c) ensure that the urgent need to resolve cases of enforced disappearance is acknowledged.
Each State shall prohibit orders or instructions commanding. authorising or
ach State Party shall guarantee that a person refusin
sanction.

5

'---'-=....;...:::..;;.J.-=-.:~..;:..;:..~...:..:..;~~~..:.;.;:;;.~~;.r....:;

CLASSIFIED
FP1108

UNCLASSIFIED
B5
3, Each State Party shall'take the necessary roekres to ensL that the persons referred to in
paragraph I who have reasons to believe that/act enforced disappearance has occurred or is
planned communicate the mutter to their superior authorities and, when necessary. to
competent authorities or or aos with reviewin or remedial ower.

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Article 21 (see 15 bis)

1. For the purposes of [the present instmmentl. "victim" means the disappeared person ~an~d~an~_ _1
,-------,. natural person who hal; suffered direct harm as a result of that disappeara~n"",e"",-. __

B5
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Each State Party shall take the necessary measures so that any victIm know!>
concerning the circumstances of the enforced disappearance an t c ate of the disappeared
person. It shall, in particular, take th.e necessary measures to search for, locate and release
disappeared persons and, in the event of death, return the human remains.
.
3. Each State Party shall guarantee the right to obtain prompt, fair and adequate reparation for the
harm caused to victims of enforced disappearance.
4. The right to obtain reparation referred to in paragraph 3 includes integral compensation for
material and non-material damage. It may also include, in particular:
a) restitution,
b) rehabilitation,
c) satisfaction,
d) restoration of honour and reputation.
5. Without p~judice to the obligation to continue the investigation until the fate of the
disappeared person is elucid~ted, each State Party shall take the necessary m.easures with
regard to the legal situation of the disappeared persons who's fate has not been elucidated
and of their relatives in fields sl1cb as social Dr9tection, financial matters, custody of
children and property ri ghts.le-

J

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Article 23 (complemented)
I.

Each State Part shalJ'take the necessar

rev t and punish in a criminal court:

B5
the abduction or hppropriation:of chi ren VictIms 0 en orced disappearance, children
whose father or mother is victim of enforced disappearance or children born during the
detention of their disappeared mother;
the falsification or suppression of documents attesting to the true identity of a child
referred to in subparagraph (a).
Each State Party shall take the necessary measures to search for and identify children
referred to in subparagraph (a) and (b).

Article 24
State Parties grant each other assistance in the search for, the identification and the location
of children referred to in article 23.

UNCLASSIFIED
FP1109

UNCLASSIFIED

Article 25
I. When a child who has been abducted or appropriated in the circumstances described in article

23, paragraph (a), is found on the territory of a State party, the guestion of the child's return to
his or her family of origin stall be resolved either under the ooinestlc"rnw"oDliat stiiteparty, or under the hil .: r!TIU tilatera'.i!g.!"~~e!!TWJiicht1fafStafeliasentered
into with
another ate In which the family of origin lives.
2;lftln all cases, the best interests of the child are a primary consideration, and a child who is
I
capable of judgement shall have the right to express his or her views freely and to have them
given due weight in the light of his or her age and level of maturity.
I

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UNCLASSIFIED
FP1110

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Article 0
(new)
I.

A [monitoring bodyJ shall ensure the implementation of the \present instrument} and the respect
by St~te Parties of their commitments.

2.

While exercising their mandate, the members of the {monitoring body} shall be entitled to
privileges and immunities as laid down in the Convention on Privileges and Immunities ofthe
United Nations.

3. Each State Party shall undertake to co-operate with the [monitorinR body] and to grant
assistance to its met
..
rc'se of their mandate.
.
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Article II-A (modified)
I.

Each State Party shah,} m) 0 e mom armg 0 y ,
e United
Nations, a report on,tfJe measures taken to give effect to its undertakings under [the present
instrument], within)o"ne yeafJafter the entry into force [of the present instrument] in respect of the
State concerned. L·
.......I

2. The Secretary-General of the United Nations shall transmit the reports to all States Parties.

3. Each report shall be considered by [the'monitorint: body], which may make such comments,
observations, recommendations and warning-s as it considers appropriate. The State Party
concerned shall receive communication of such comments, observations, recommendations and
warning-s, to which that State may respond, on its own initiative or at the request [Qfthe monitorinj:
body].

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Article /l-B (mod(fled)
I.

Each State Party or the relatives of a disappeared person, their legal representatives, their counsel,
and any person authorised by them, as well a<; any person able to claim a legitimate interest m~y'
submit a r:r.ue~tdf [t~~.!!!.C!E.~~orinB. boclJiJ to seek and find .a_p.~E~2.l).~ho has disappeared withm the
meanmg 0 artlc e I.

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2. Should [the monitoring body] consider thatA request su mltte un er paragrap I &-1Wtmatljf.e&t)~RfuuRa~that it does not constittite an abuse of the rjght'Qf--mHJmis~n and mat it is
not incompatible wittrfhe provisions {of the present instrument] [the Inonitoring body] shall
request any State Party to provide information on the situation of tha~1 erson withi 1 a ti -' .
set by [the monitoring body].

UNCLASSIFIEb~_-----FP1111

ED

B5

3. In the light of the response prOVI e "y le a e ar y concerned in accordance with paragraph
2. [themonitorinff hmM shajI-ma 'u recommendation or give a warning to that State.tThe
monitorinl: body] may als<finsln: ct-tnat State to take appropriate measures and to report to it on
those measures, within H time-limIt set by [the mOllitorill1: body],

4. [The fIlol1itorillP. body] shall establish its conclusions and forward them to any State Party which
hus been requested to provide information and to the author of the request referred to in paragraph
1.

". -..
,

'.

5. The p~ocedure under this mticle i.~,~onfidential. :
\

Article /I-e (modified)

"',,-_.. ,

l. If [the monitorj,1!: body] considers that a visit to the territory of a State Party under whose

jurisdiction a disappeared person could be is essential in order to respond to the request submitted
to it in accordance with Alticle H-B, [the monitoring body] may request one or more of its
members to undertake an investigation mission and to report back without delay. The member or
members (of .the monitorinF: body] conducting the mission may be accompanied if necessary by
interpreters, secretaries and experts. No member of the delegation, with the exception of the
interpreters, may be a national of the State Party to which the visit is to be made.

0

2. [The monitoring body] shall notify the State Party concerned in writing of its intention to
organise an investigation mission, indicating the composition of the delegation. The State
Party shalf inform [the 10 monitoring body] without delay of its agreement or opposition to
I~------.Jthe investigation mission in the territory over which it has junsa,ctlon.
-

B5

B5

f the State Party agrees to the investigation mission, it shall provide [the monitoring body]
with all the necessary facilities to enable the mission to be carried out. [The monitoring body]
may, inter alia:

a) make such visits as it may consider necessary to search for and find the person who has
disappeared;
b) make contact freely with any person whom it believes may provide useful infonnation on
the fate of the person who has disappeared;
c) have the person who has allegedly disappeared brought to it and discuss with "him or her in
private.
4. {The monitoring hody] shall inform the following of the findings of the investigation .mission:

a) the State Party in whose territory the investigation mission was carried out;
b) the author of the request referred to i~. p~ragraph I of article II-B.
5. The procedure unr

::i'

Article lI-C bis (new{

._

..... :

'"

mticle is'confidential.'

B5

1. [The monitorin!!, body} c'onsideri a communication presented by the relatives of a disappeared
person, their legal rep:esentatiY7s, the~r counsel, an~ a~¥ erson authori~ed by ~hem, as well~
any ~rson able to claim a legItImate mterest allegmg rave breaches In the Implementation
@ft!1.s'commitments taken under the [present instrw Itl] unless

B5

a) the communication lacks sufficient motivation or is obviously unfounded;
'-'-o!--=-",-s.:..;.a.;;...m-,e matter is being examined under another procedure of international investigation or

UNCLASSIFIED
FP1112

UNCLASSIFIED

settlement;
c) the complainant has not exhausted all available effective domestic remedies.

2. If the [the monitorinK b()(fy] assesses that the communication fulfils the conditions under
paragraph 1, [the mOllitorinx body] transmits the communication to the State Party concerned
and requests this State Party to provide observations and comments within a time-limit set by
the [monitoring body].

3. On the basis of the answer of the State Party, [the monitoring bod.yJ may decide:
(1) to close the matter of the communication;
b) to continue its examimltion;
c) to make a recommendation to the State Party.
4. The procedure under the present article comes to an end when the [monitoring body]
communicates the conclusions of its investigation to the State Party and to the author of the
,_-----------------communication.
(',. ',"::::::".,
"~'"'~

5

5. The procedure under this article is confidential.,

\

........... ..
_~._

Article 1I-C ter (new)

'
"

If the [monitorinR body] receives reliable information which appears to it to contain wellfounded indication that enforced disappearance is being practised in a systematic or genera)
manner in the territory of a State Party, the [monitoring body] may seize the Secretary
General of the United Nations, after having enquired with the State Party concerned about
any pertinent information and the measures taken to put an end immediately to such
practises.
Article Il-D (integrated in II-O§2)

Article /I-E (complemented)

I

.

, B5

]. [The monitoring body] has competence solely in respect of deprivations of Jibe""'rt~y7.w:':1h-,.lC"="hr:------'
commenced after the entry into force to/this instrument},

2. Should a State become party to [this instrument] after its entry into force, the obligations
of that State towards [the monitorinx body] concern only deprivations of liberty which
commenced after the entry into force [Qf this instrument1 in respect of the State concerned.

3. (new) Each State Party may at any time declare that, in its own respect, it recognises that the
[monitoring body} has competence in respect of enforced disappearances which commenced
before entry into force of the [present instrument}.
Article ll·F (modifled)~'--i

_

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I. The [monitoring body} ~.hall submit an.aJ1!lual re120rt on its activities [under the present
instrument} to the States Parties and to the General Assembly of the United Nations.

, I

2. (new) If, in the procedures under articles II-B and ll-C bis, a State Party concerned obviously
refuses to cooperate or if the procedures yield to no effective result, the [monitoring body}
may decide to make an observation public, with regard to the matter or the situation at stake.

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3. (new) The State PUlty concerned shall be informed in advance of the publication of an
observation under pnmgraph 2 of the present article. This observation shall be published
together with the answers, comments or observations transmitted by the State Party within the
time·limit set by the {numitodng hO(fyJ.

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Article Ill-O ljormer 2.2)

[The present instrument] is without prejudice to any other international instrument or national
legislation that does or may contain provisions of broader application.
Article Ill-O bis (new)

Personal data, including medical or gene.lic data, which are transmitted in the framework of the
search of a disappeared person shall not be used for other purposes than that of the search of the
disappeared person.
Article III·A

J. [Thepresent instrument] is open for signature by [...].
2. [the present instrument] is subject to ratification. Instruments of ratification shall be deposited
with the Secretary-Geneml of the United Nations.
3. [The present instrument] is open to accession by [...). Accession shall be effected by the

deposit of an instrument of accession with the Secretary-General of the United Nations.

Article IlI-B
l. [The present instrument] shall enter into force on the thirtieth day after the date of deposit of
the IXthj instrument of ratification or accession.

2. For each State ratifying [the present instrument] or acceding to it after the deposit of the [Xth]
instrument of ratification or accession, [the present instrument] shall enter into force on the
thirtieth day after the date of deposit of its own instrument of ratification or accession.

Article IIl-C
The Secretary-General of the United Nations shall inform all States Members of the United
Nations and all States which have signed [the present instrument] or acceded to it of the following:
a) Signatures, ratifications and accessions under article Ill-A;

b) The date of entry into force of [thepresent instrument] under article III-B.
Article III-D

The provisions of [the present instrument] shall apply, without limitation or exception, to all parts of
federal States.

Article Ill-D bis (new)
I.

Any State, upon signature, ratification or accession, may declare that [the present instrument]

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will be extended to any territory for which it is responsible with regard to international
relations. Such a dyciaratjQ!l wjJ1 take eff&t when {rite present illstrumellt] enters into force for
the State concerned{

I

2.

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At any time, such an extension may be notified to the Secretary General of the United Nations
and will take effect (...) days after it has been received by the Secretary General.

Article llJ-E (imew·ated ill f his, pamgrapfl 2)
Article lIJ·F
pr~judice to the provisions of international humanitarian law,
including the obligations of the High Contracting Parties to the four ,Geneva Conventions of 12
August 1949 and the Additional Protocols thereto of 8 June 1977, or the option available to any
State to authorise the International Committee of the Red Cross to visit places of detention in
cases for which international humanitarian law does not provide.

[The f'l'esent instrument] is without

Article lJJ·G
I. Any State Party to [the present instrument] may propose an amendment and file it with the
Secretary-General of the United Nations. The Secretary-General shall thereupon
communicate the proposed amendment to the States Parties to [the present instrument}
with a request that they notify him or her whether they favour a conference of States
Patties for the purpose of considering and voting upon the proposal. In the event that within
four months from the date of such communication at least one third of the States Parties
favours such a conference, the Secretary-General shall convene the conference under the
auspices of the United Nations. Any amendment adopted by a m~jority of two thirds of the
States Parties present and voting at the conference shall be submitted by the Secretary-General
to all the States Parties for acceptance.

2. An amendment adopted in accordance with paragraph I of this article shall enter into force
when two thirds of the State Parties to [the present instrument] have accepted it in
accordance with their respective constitutional processes.
3. When amendments enter into force, they shall be binding on those States Parties, which have
accepted them, other States Parties still being bound by the provisions of [the present
instrument] and any earlier amendments which they have accepted.

Article ll/-H
1. [The present instrument], of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic. shall be deposited with the Secretary-General of the
United Nations. .

2. The Secretary-General of the United Nations shall transmit certified copies of [the present
instrument] to all States.

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21106/04 - Traduction de courtoisie

B5

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RELEASED IN PART
B5

Indications such as "new", "complemented", l~tC. {lfe illtended to iwse the companson wzt
document E/CN.4/2004/WG22/WP.//Rev./ ojf december 2003.
Preamble (new)

Q,£., \1

'-------,
---------------

The States Parties to the {present instru1IIentlt

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RecallinR the Declaration on the Protection of all Persons from Enforced Disappearances adopted by the
General Assembly of the United Nations in its resolution 47/[33 of [8 December /992;
Conscious of the extreme gravity of enforced disappearance which constitute a crime and, in
certain circumstances, a crime against humanity; •
Detennined to fight against the impunity of the crime of enforced disappearance;
AffirminK the right of victims to know the truth about the circumstances of an enforced disappearance and
the fate of the disappeared person;
Have agreed as follows;

Parti
Article 1

,

For the purposes of [the present instrument] enforced disappearance is considered to be the deprivation
of a person's liberty, in whatever form, committed by agents of the State or by persons or groups of.
persons acting with· the authorization, support or acquiescence of the State, followed by refusal to
acknowledge the deprivation of liberty or concealment of the te or whereabouts of the disappeared
person, which places such person outside the protection of the law _
.

fr

II

B5

Article Ibis (new)
I. No one s~all be subjected to enforced disappearance.

2. (from former UI-E) No circumstances whatsoever, whether a state of war or threat of war, internal
political instability or any other state of emergency, may be invoked as a justification of enforced
disappearance.

Article'2 (modified;1
1.

-------------------Each State Party shall take the necessary measures to ensure that enforced disappearance, as defined

B5

in article I, constitutes an offence under its criminal law,
2. Each State Party shall take equivalent measures when persons or groups of persons acting without
the_authorization. support or acquiescence of the State are responsible for dealings defined in article 1.

Article 2 his (new)
The widespread or systematic practice of enforced disappearance constitutes a crime against humanity
and shall attract the consequences provided for under i nternationallaw.

Article 3 (reorganised)
I. Each State Party shall take the necessary measures to pursue and punish those who commit or
contribute to the commission of an enforced disappearance.
UNITED STATES DEPARTMENT OF STATE
REviEw AUTHORITY: ARCHIE M BOLSTE:
2. The following shall be punished:
DATE/CASE ID: 23 JUN 2009 200706444

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a) the perpetrators of and accessories in nn enforced disappearance.
b) the attempt to commit an enforced disappearance.
c) the conspiracy to commit an enforced disappearance,
3. The following shall also be punished:
a) persons who order or encourage the commission or attempted commission of such an
offence, and persons who facilitate its commission or attempted commission by aiding,
abetting or otherwise assisting in it, including providing the means for its commission or
attempted commission, shall be punished.
b) a superior officer who:
(i)
either knew, or consciously disregarded information which clearly indicated. that
subordinates were committing or about to commit an enforced disappearance, and who
(ii) failed to take all necessary and reasonable measures within his or her power to
prevent or repress the enforced disappearance or to submit the matter to the
competent authorities for investigation and prosecution.

4. (former 6) An order of a superior officer or a public authority may not be invoked as a
justification of an enforced disappearance.
Article 4

1. Each State Party shall make enforced disappearance punishable by appropriate penalties which
take into account its extreme seriousness.

2. Each State Party may establish:
a) mitigating circumstances inter alia for persons who, having been involved in the
commission of an enforced disappearance, effectively contribute to bringing the
disappeared person forward alive, or contribute to elucidating cases of enforced
disappearance or identifying the perpetrators of an enforced disappearance.
b) (complemented) Aggravating circumstances inter alia in the event of death of the victim
or the commission of an enforced disappearance in respect of pregnant women, minors or
other particularly vulnerable persons.
flrtidc.'i {irlicle5 (nu)~ified)~----------------------

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Without prejudice to article 2 bis,
1. Each State Party which applies a statute of limitations in respect of enforced disappearances shall
take the necessary measures to ensure that the term of limitation for criminal proceedings:
a) is of long duration and proportionate to the extreme seriousness of the offence;
b) shall commence from the moment when the offence of enforced disappearance ceilses and
the fate of the disappeared person is established.
2. The statute of limitations for criminal proCeedings under paragraph J shall be suspended in a State
Party as ]ong as any victim of enforced disappearance d<?es not have an effective remedy.
Article 6 (see 3.3)
Article 7 (deleted)

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ArticLe 8 (dele/ed)
.Article 9 (reorganised and modified)

t.

Each State PUlty shall take such measures as may be necessary to establish its jurisdiction over
an enforced disappearance:

a) when the offence is committed within any territory under its jurisdiction or on board a
vessel flying its tlag or an aircraft registered in accordance with its law at the time of the
facts;

I

b) when the alleged perpetrator of the offence is one of its nationals or a stateless person
habitually residing in its territory;

c) when the disappeared person is one of its nationals and the State deems it appropriate to do
. so.
2. Each State Party shall also take the necessary measures to establish its jurisdiction over
atl enforced disappearance when the alleged perpetrator of the offence is in a territory under
its jurisdiction, unless the State extradites him or her or transfers him or her to another
State or surrenders him or her to an international criminal tribunal whose jurisdiction it has
recognised.

3. [The presen.t instrument] does not exclude any criminal jurisdiction exercised in accordance
with national laws.

Article 10
1. Upon being satisfied, after an examination of information availabJe to it, that the
circumstances so warrant, any State Party in whose territory a person alleged to have
committed an enforced disappearance is present, shall take him or her into custody or take
other. legal measures to ensure his or her presence. The custody and other legal measures
shall be as provided in the law of that State but may be continued only for such time as is
necessary to enable any criminal or extradition proceedings to be instituted.

2. The State Party which has taken the measures referred to in paragraph 1 shall
immediately make an investigation into the facts. It shall notify the States Parties which may
have jurisdiction in accordance with paragraph 1 of article 9 of the measures which it has
taken under paragraph I of this article, particularly of the fact that such person is in custody
and of the circumstances which warrant his or her detention, the findings of its
investigation and shall indicate to those States whether it intends to exercise jurisdiction.

3. Any person in custody pursuant to paragraph I shall be assisted in communicating
immediate! y with the nearest appropriate representative of the State of which he or she is a
national, or, if he or she is a stateless person, with the representative of the State where he or
she usually resides.

Article II
I. The State Party in the territory under whose jurisdiction a person alleged to have committed
any enforced disappearance is found shall, if it does not extradite him or her or transfer
him or her to another State or surrender him or her to an international criminal tribunal
whose jurisdiction it has recognised, submit the case to its competent authorities for the
purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State. In the cases referred to in
paragraph 2 of article 9, the standards of evidence required for prosecution and conviction

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shall in no way be less stringent than those which apply in the cases referred to in paragraph 1
of article 9.

3. (modified) Any person charged with an offence of enforced disappearance shall be tried by
an ind~pendent and impartial court, duly established by law, which guarantees the right to a
fair trial.
4. (new) Any person regarding whom proceedings are brought in connection with an enforced
disappearance shall be guaranteed fair treatment utall stages of the proceedings.

Article 12 (modified)
1. Each State Party shall ensure that any person who alleges that someone has been subjected
to enforced disappearance has the right to complain to a competent authority, which
thoroughly investigates the complaint immediately and impartially. Appropriate steps shall be
taken, where necessary, to ensure that the complainant, witnesses, the relatives of the
disappeared person and their defence counsel as well as those participating in the
investigation are protected against all ill-treatment or intimidation as a consequence ofthe
complaint or any evidence given.
2. Whenever there are reasonable grounds to believe that a person has been subjected to
enforced disappearance, any State Party shall refer the matter to the authority referred to in
paragraph 1 for it to launch an investigation, even if there has been no formal complaint.
3. (new) Each State Party shall ensure that the authority referred to in paragraph 1:
a) has the necessary powers and resources to conduct the investigation, including the power
to compel suspected perpetrators and witriesse~ to appear before it,
b) is' communicated the necessary information for its investigation;
c) has access to any place where it is suspected that a disappeared person is present.

4. (former 12.6, complemented) Each State Party shan take the necessary measures to prevent
and punish acts of such a kind as to inhibit the progress of investigations. It shall ensure,
particularly, that persons suspected of having committed an enforced disappearance are not
in a position to influence the progress of the investigations by means of pressure or acts of
intimidation or reprisal against the complainant, the witnesses, the relatives of the
disappeared person, the defence counsel as well as those participating in the
investigation..
5. (new) The investigation pursuant to the present article shall be conducted in confonnity with
international principles for investigations on human rights violations, torture, search of
disappeared persons, forensic examination and identification.
Article 13 (modified)

J. For purposes of extradition between States Parties, enforced disappearance shall be
consider~ to be neither a political offence, nor an offence related to a political offence or an
offence prompted by political motives. Consequently, a request for extradition based on
enforced disappearance cannot be refused solely because it concerns a political offence, an
offence related to a political offence or an offence prompted by political motives.
2. Enforced disappearance shall automatically be included among-the extraditable offences in
every extradition treaty concluded between States Parties before the e~try into force [of the

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present i1lstrument].
3. States Pl1Ities undet1ake to include the offence of enforced disappearance among the .
extraditable offences in every extradition treaty to be concluded subsequently between them.

4. If a State Party which makes extradition conditional on the existence of a treaty receives a
request for extradition from another State Party with which it has no extradition treaty, it
may consider [the present instrument] as the legal basi!. for extradition in respect of enforced
disappearance.

5. Any State Patty which does not make extradition conditional on the existence of a treaty shall
recognise the offence of enforced disappearance as extraditable.
6. Extradition shall, in all ca'ies, be su~iect to the conditions provided by the law of the requested
State Party or by applicable extradition treaties, including, inter alia, conditions in
relation to the minimum penalty requirement for extradition and the grounds upon which the
requested State Party may refuse extradition or su~iect extradition to conditions.
7. No provision [of the present instrument] shall be interpreted as imposing an obligation on
the requested State Party to extradite if that State has serious grounds to believe that the
request was put forward for the purpose of prosecuting or punishing a person on account of
his or her gender, race, religion, nationality, ethnic origin or political opinions, or that to
aJ]ow the request would cause harm to that person for anyone of those reasons.

Article 14 (modified)
1. States Parties shall provide one another the greatest measure of legal assistance in
connection with any criminal investigation or proceedings brought in respect of enforced
disappearance, including the supply of all evidence at their disposal that are necessary for the
proceeding~.

2. Such legal assistance is su~iect to the conditions provided by the domestic law of the
requested State Party or by applicable treaties on mutual legal assistance, including,
particularly, concerning the grounds on which the requested State Party may refuse to
provide legal assistance or subject such assistance to conditions.

Article 15 (modified)
States Parties shall co-operate with one another and shall provide one another the greatest
measure of assistance with a view to assisting victims of enforced disappearance. and in
searching, locating and releasing disappeared persons and, in the event of death, in their
exhumation. identification and restitution of their remains.
Article J5 bis (fonner 2/)

1. No State Party shall expel, return ("refouter") or extradite a person to another State
where there are su~stantiar grounds for believing that he/she would be in danger of
being subjected to an enforced disappearance.
2. For the purpose of determining whether there are such grounds, the competent authorities
shall take into account all relevant considerations, including, where applicable, the existence
in the State concerned of a consistent pattern of gross. flagrant or mass violations of human
rights or of humanitarian law.
.

Article 16 (reorganised and modified, see /6 bis below~

B5

J. Each State Party shall. under its law,

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a) indicate those officials who are authorised to order deprivation of liberty;
b) establish the conditions under which such orders may be given;
c) guarantee that any person deprived of liberty shall be held solely in an officially
recognised and controlled place;
d) guarantee access of the judicial authorities to places of deprivation of liberty;
e) guarantee that any person deprived of liberty, in all circumstances, shall have the
right to bring proceedings before a court which shall rule without delay on the lawfulness
of the deprivation of liberty and order his or her release if that deprivation of liberty is
unlawful.
2. Each State Party shall compile and maintain one or several official up-to-date regiSters of
persons deprived of liberty. The information contained in these registers shall include at least
the following: .
a) the identity of the person deprived of liberty,
b) the authority having decided the deprivation ofliberty,
c) the authority controlling the deprivation of liberty,
d) the date and time of admission in the place of detention and the authority respon~ible

e)

for the place of detention,
The date and "time. of liberation or transfer to another place of detention, the destination
and authority in charge of the transfer.

Article 16 bis}

J

B5

I~'~~~~
1. Each State Party shall guarantee the person deprived of liberty, his or her r~latives,
their legal representatives, their counsel, and any person authorised by them, as we]] as
any person able to claim a legitimate interest access, as a minimum, to the following
information:
a) the authority to which the person has been handed over;
b) the authority having decided the deprivation of liberty;
c) the authority controlling the person deprived of liberty;
d) the whereabouts of the person deprived of liberty, including in case of transfer;
e) date and place of release;
f)

state of health and, in the event of death, circumstances and causes of the death.

2. Appropriate measures shall be taken, where necessary, to ensure the protection of the persons
mentioned in paragraph I as well as the persons participating i,n the investigation against all
ill-treatment; intimidation or any sanction on the grounds of the search of information
concerning a person deprived of liberty.
.

3. '(new) In order not to jeopardise the privacy of the persons concerned, the information

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transmitted pursuant to paragraph I of the present article shall be adequate and pertinent with
respect to the purpose pursued and shall not be used for other purposes than the search of the
person deptived of liberty.
.

Article 17
Without p~judice to consideration of the lawfulness of a deprivation of liberty, States Parties
shall guarantee to the relatives of the person deprived of liberty or of a disappeared person,
their legal representatives, their counsel and any person authorised by the person deprived of
liberty or the disappeared person or by his/her relatives, as wen as any other person able to
claim a legitimate interest the right to a prompt and effective remedy as a means of
obtaining without delay the information referred to article 16 bis. This right to a remedy
may not be suspended 01' restricted in any circumstances.
Article J8 (complemented)

Each State Party shall take the necessary measures to ensure that the release of persons shall
proceed in a manner that allows reliable verification that they have actually been released.
Each State Party shall also take the necessary measures so that the physical integrity of all
such persons and their ability to exercise fully their rights are assured at the time of release,
without pr~judice to the obligations to which such persons may be subject in accordance with·
the law.
Article 19

Each State Party shall take the necessary measures to prevent and punish the following actions:
a) delaying or obstructing the remedy referred to in article 17;
b) failure to the obligation to register every deprivation of liberty and registration of
information which the official responsible of the register knows or should known to be
inaccurate;
c) refusal by an official to provide infolmation on the deprivation of liberty of a person, or the
provision of inaccurate information, even though the legal conditions for this information
to be provided have been fulfilled .
. Article 20 (complemented)

1. Each State Party shall ensure that the training of law enforcement personnel, civil or
military, medical personnel, public officials and other persons who may be involved in the
custody or treatment of any person deprived of liberty shall include the necessary education
and infonnation on the provisions (of the present instrument] ,in order to:
a) prevent the involvement of these officials in enforced disappearances;
b) draw attention to the importance of prevention and investigations concerning enforced
disappearances~

c) ensure that the urgent need to resolve cases of enforced disappearance is acknowledged.
2. Each State shall prohibit orders 01' instructions commanding, authorising or
encouraging enforced disappearance. Each State Party shall guarantee that a person refusing
to obey such order will not be subject to sanction.

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3. Each State Party shall take the necessary measures to ensure that the persons referred to in
paragraph] who have reasons to believe that act enforced disappearance has occurred or is
planned communicate the matter to their superior authorities and, when necessary, to
competent authorities or organs with reviewing or remedial power.
.

Article 21 (see 15 his)
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Article 22 (modified and complemented)
1. For the purposes of [the preseflt instrument], "victim" means the disappeared person and any
natural person who ha.<.; suffered direct harm a.1i a result of that disappearance.
2. Each State Party shaH take the necessary measures so that any victim knows the truth
concerning the circumstances of the enforced disappearance and the fate of the disappeared
person. It shall, in pmticular, take the necessary measures to search for, locate and release
disappeared persons and, in the event of death, return the human remains.
3. Each State Party shall guarantee the right to obtain prompt, fair and adequate reparation for the
harm caused·to victims of enforced disappearance.
.
4. The right to obtain reparation referred to in paragraph 3 includes integral compensation for
material and non-material damage. It may also include, in particular:
a) restitution,
b) rehabilitation.
c) satisfaction,
d) restoration of honour and reputation.
5. Without pr~judice to the obligation to continue the investigation until the fate of the
disappeared person is elucidated, each State Party shall take the necessary measures with
regard to the legal situation of the disappeared persons who's fate has not been elucidated
and of their relatives in fields such as social protection, financial matters, custody of
children and property rights·1

I

B5

Article 23 (complemented)

1.

Each State Party shaJl'take the necessary measures to prevent and punish in a criminal court:

a) the abduction or appropriation of children victims of enforced disappearance, children
whose father or mother is victim of enforced disappear:ance or children born during the
detention of their disappeared mother;
b) the falsification or suppression of documents attesting to the true identity of a child
referred to in subparagraph (a).

2.

Each State Party shall take the necessary measures to search for and identify children
referred to in subparagraph (a) and (b).

Article 24
State Parties grant each other assistance in the search for, the identification and the location
of children referred to in article 23.

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Article 25

J. When a child who has been abducted or appropriated in the circumstances described in article
23, paragraph (a), is found on the territory of a State party, the question of the child's return to
his or her family of origin stall be resolved either under the domestic law of that State
party, or under the bilateral or multilateral agreement which that State has entered into with,
another State in which the family of origin lives.
2. In all cases, the best interests of the child are a primary consideration, and a child who is
capable of judgement shall have the right to express his or her views freely and to have them
given due weight in the light of his or her age and level of maturity.

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Article U
(new)

1. A [monitorinf!, body] shall ensure the implementation of the \present instrument] and the respect
by State Parties of their commitments.
2. While exercising their mandate, the members of the.[monitoring body} shall be entitled to
privileges and immunities as laid down in the Convention on Privileges and Immunities of the
United Nations.
3. Each State Party shall undertake to co-operate with the [monitoring body1and to grant
assistance to its members in the exercise of their mandate.
Article II-A (modified)
1. Each State Party shall submit to [the monitoring body], through the Secretary-General of the United
Nations, a report on the measures taken to give effect to its undertakings under [the present
instrument], within one year after the entry into force [ofthe present instrument] in respect of the
State concerned.

2. The Secretary-General of the United Nations shall transmit the reports to all States Parties.
3. Each report shall be considered by [the monitorjn~ body}, which may make such comments,
observations, recommendations and warnings as it considers appropriate. The State Party
concerned shall receive communication of such comments, observations, recommendations and
warnings, to which that State may respond, on its own initiative or at the request [olthe monitorinf?
body].

Article /I-B (modified)
1. Each State Party or the relatives of a disappeared person, their legal representatives, their counsel,
and any person authorised by them, as well as any person able to claim a legitimate interest may
submit a request to [the monitoring body] to seek and find a person who has disappeared within the
meaning of article 1.

2. Should [the monitoring body] consider that a request submitted under paragraph I is not
manifestly unfounded, that it does not constitute an abuse of the right of submission and that it is
not incompatible with the provisions [(~f the present instrument] [the monitoring body] shall
request any State Party to provide information on the situation of that person, within a time-limit
set by [the monitoring body].

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3. In the light of the re~ponsc provided by the State Party concerned in accordance with paragraph
2, [tllemollitorillg b(}{~)'J shall make a recommendation or give a warning to that State. [The
monitoring bo{M milY also instJ1lct that State to take appropriate measures and to report to it on
those measures, within a time-limit set by {tire mOl/itoring b(}(~)lJ,
4. [The lIlollitori/l~ body] shall establish its conclusions and forward them to any State Party which
has been requested to provide information and to the author of the request referred to in paragraph
I.

5. The procedure under this article is confidential.
Article ll-C (mod(fhul)
I. If [tlte monitoring hody] considers that a visit to the territory of a State Party under whose

.iurisdiction a disappeared person could be is essential in order to respond to the request submitted
to it in accordance with Article H-B, [the mOititorin/: body] may request one or more of its
members to undertake an investigation mission and to report back without delay. The member or
members [of.the mOllitoring body} conducting the mission may be accompanied if necessary by
interpreters, secretaries and experts. No member of the delegation. with the exception of the
interpreters. may be a national of the State Party to which the visit is to be made.

2. [The nwnitorinR body] shall notify the State Party concerned in writing of its intention to
organise an investigation mission. indicating the composition of the delegation. The State
Party shall inform [the 10 monitorin8 body] without delay of its agreement or opposition to
the investigation mission in the territory over which it has jurisdiction.
3. If the State'Party agrees to the investigation mission, it shall provide [the monitoring body]
wi th all the necessary facilities to enable the mission to be carried out. (The monitoring body]
may, inter alia:
a) make such visits as it may consider necessary to search for and find the person who has
disappeared;
b) make contact freely with any person whom it believes may provide useful infonnation on
the fate of the person who ha~ disappeared;
c) have the person who has allegedly disappeared brought to it and discuss with "him of her in .
private.
4. [The monitoring body] shall inform the fonowing of the findings of the investigation mission:

a) the State Party in whose territory the investigation mission was carried out;
b) the author of the request refelTed to in paragraph 1 of article II-B.
5. The procedure under this article is confidential.
Article JI-C bis (new)1

I

.

B5

1. [The nwnitorin~ body] considers a communication presented by the relatives of a disappeared
person, their legal representatives, their counsel, and any person authorised by them, as well as
any person able to claim a legitimate interest alleging grave breaches in the implementation
of the commitments taken under the [present instrument) unless

a) the communication lacks sufficient motivation or is obviously unfounded;
b) the same matter is being examined under another procedure of international investigation or

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settlement;
c) the complainant has not exhausted all available effective domestic remedies.
2. lEthe [the monitorinx body] a~sesses that the communication fulfils the conditions under
paragraph I, [the l1umitorinJi bOlM transmits the communication to the State Party concerned
and requests this State Party to provide observations and comments within a time-limit set by
the [nwllitoring body].
3. On the basis of the answer of the State Party, [the monitoring body] may decide :

a) to close the matter of the communication;
b) to continue its examination;
c) to make a recommendation to the State Party.
4. The procedure under the present article comes to an end when the [monitoring body]
communicates the conclusions of its investigation to the State Palty and to the author of the
communication.

...

5. The procedure under this article is confidential.
Article 1I-C ter (new)

If the [monitoring body} receives reliable information which appears to it to contain wellfounded indication that enforced disappearance is being practised in a systematic or general
manner in the ten'itory of a State Party, the [monitorinJi body] may seize the Secretary
General of the United Nations, after having enquired with the State Party concerned about
any pertinent information and the measures taken to put an end immediately to such
practises.
Article II-D (integrated in Il-O§2)

Article Il-E (complemented)

J. [The monitorin,r.: body] has competence solely in respect of deprivations of liberty which
commenced after the entry into force [of this instrumentj.
2. Should a State become party to [this instrument} after its entry into force, the obligations
of that State towards {the monitorin/{ body] concern only deprivations of liberty which
commenced after the entry into force [of this instrument] in respect of the State concerned.
3. (new) Each Slate Party may at any time declare that, in its own respect, it recognises that the
{monitoring body} has competence in respect of enforced disappearances which commenced
before entry into force of the {present instrument/.
Article II-F (modified~

B5

1. The [monitoring body/ shall submit an annual report on its activities [under the present
instrument) to the S.lates Parties and to the General Assembly of the United Nations.
2. (new) If, in the procedures under articles II-B and II-C bis, a State Party concerned obviously

refuses to cooperate or if the procedures yield to no effective result, the [monitoring body}
may decide to make an observation public, with regard to the matter or the situation at stake.

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3. (new) The State Party concerned shall be informed in advance of the publication of an
observation under paragraph 2 of the present article. Thi!; observation shall be published
together with the answers, comments 01' observations transmitted by the State PaIty within the
time-limit set by the {mohitorill!? body].

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BS

Article III-O (former 2.2)

[The present instrument] is without pr~judice to any other international instrument or national
legislation that does or may contain provisions of broader application.
Article IIJ-O bis (new)

Personal data, including medical or gene.tic data, which are transmitted in the framework of the
search of a disappeared person shall not be used for other purposes than that of the search of the
disappeared person.
Article //l·A
I. [Thepresent instrument] is open for signature by [...].

2. [the present instrument} is subject to ratification. Instruments of ratification shall be deposited
with the Secretary-General of the United Nations.

3. [The presen't instrument] is open to accession by [...]. Accession shall be effected by the
deposit of an instrument of accession with the Secretary-General of the United Nations. .
Article Ill-B
1. [The present instrument] shall enter into force on the thirtieth day after the date of deposit of
the [Xth] instrument of ratification or accession.

2. For each State ratifying [the present instrument] or acceding to it after the deposit of the [Xthj
instrument of ratification or accession, [the present instrument1 shall enter into force on the
thirtieth day after the date of deposit of its own instrument of ratification or accession.
Article JIf- C

The Secretary-General of the United Nations shall inform all States Members of the United
Nations and all States which have signed [the present instrument] or acceded to it of the following:
a) Signatures, ratifications and accessions under article III-A;
b) The date of entry into force of {rhepre.l'em instrument] under article III-B.
Article [Il-D

The provisions of [the present instrument] shall apply, without limitation or exception, to all parts of
federal States.
Article IlI-D his (new)
I.

Any State, upon signature, ratification or accession, may declare that [the present instrument]

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will be extended to any territory for which it is responsible with regard to international
relations. Such a declaration will take effect when the resent instrument enters into force for
the State concerned

2.

B5

At any time, such an extension may be notified to the Secretary General of the United Nations
and will take effect C...) days after it has been received by the Secretary General.

Article lll-E (integrated in 1 his. paragraph 2)
Article II/-F
[The present instrument] is without pr~iudice to the provisions of international humanitarian law,
including the obligations of the High Contracting Parties to the four Geneva Conventions of 12
August J949 and the Additional Protocols thereto of 8 June 1977, or the option available to any
State to authorise the International Committee of the Red Cross to visit places of detention in
cases for which international humanitarian law does not provide.
Article IIl-G

1. Any State Party to {the present instrument] may propose an amendment and file it with the
Secretary-General of the United Nations. The Secretary-General shall thereupon
communicate the proposed amendment to the States Parties to [the present instrument]
with a request that they notify him or her whether they favour a conference of States
Parties for the purpose of considering and voting upon the proposal. In the event that within
four months from the date of such communication at least one third of the States Parties
favours such a conference, the Secretary-General shall convene the conference under the
auspices of the United Nations. Any amendment adopted by a majority of two thirds of the
States Purties present and voting at the conference shall be submitted by the Secretary-General
to all the States Parties for acceptance.

2. An amendment adopted in accordance with paragraph 1 of this article shall enter into force
when two thirds of the State Parties to [the present instrument] have accepted it in
accordance with their respective constitutional processes.
3. When amendments enter into force, they shall be binding on those States Parties, which have
accepted them. other States Parties still being bound by the provisions of [the present
instrument] and any earlier amendments which they have accepted.

Article ll/-H
I. [The present instrument], of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of [the present
instrumentJ to all States.

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21/06/04 - Traduction de courlc.iillie

UNCLASSIFIED
RELEASED IN PART
B5

Indica/iolls slIch as "I/ew", "C(}f/(plemertle(/", elc, art! il/lel/ded to ell,I'e Ih/! comparison with Joel/me!U

E/CNAI2004IWG221WP. J/RI!\!. J of J december 20tJ3,
Preamble (new)

The States Parties to the Ipresell/ ills/rumen/I,

Recalling the Declaration on the Protection of all Persons from Enforced Disappearances adopted by the General
Assembly of the United Nations in its re:\oIution 47/133 of 18 December 1992;

Conscious of the cx.treme grnvity of enforced disappearance which conslitute
drcumstanccs. a crime against humanity;

l\

crime and, in certain

De/ermilled to fight against the impunity of the crime of enforced disappearance ;

AffirminG the right of viclims to know the truth about the circumstances of an enforced disappearance and the
fate of the disappeared person;
Have agreed as follows:

Article 1

For the purposes of [the preselll illstrument) enforced disapPearance is considered to be the deprivation of a
person's liberty, in whatever form. committed by agents of the State or by persons or groups of persons acting
with the authorization. support or acquiescence of the State, followed by refusal to acknowledge the
deprivation of liberty or concealment of the fate or whereabouts of the disappeared person, Which places such
person outside the protection of the law.
Article Ibis (new)

I.

No one shall be subjected to enforced disappearance.

2.

(from fonner IlI·E) No circumstances whatsoever, whether a state of war or threat of war, internal political
instability or§y ot~ state of emergency, may be invoked as a justification of enforced disappearance,

Article 2 (modified)

B5

,--------------,

I.

Each State Party shall take the necessary measures to ensure that enforced disappearance, as defined in
article I. constitutes an offence under its criminal law.

2,

Each State Party shall take equivalent measures when persons or ar.oups~?f persons acting without the
authorization su ort Or ac uiescence of the ate are res si Ie f i dealings' ~efined in article 1.

\I

B5
The widespread or systematic practice of enforce<! disappearance constitutes a crime against humanity an
shall attract the consequences provided for under international law.

Article 3 (reorganised)
I.

Each State Party shall take the necessary measures to pursue and punish those who commit or contribute to
the commission of an enforced t1:is:ap~p~e:a:ra:n:c:e:...
--'

2.

The following shall be punishe

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

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I

a)

b)

4.

2

I

B5
B5

B5

pers~s

who order or ~ge the commission or attempted commission of such an offence. and
persons wh~acilitate Its commission or attempted commission by aiding, abetting or otherwise
nssisting in il. including) providing the means for its cOJ~mission or attemptcd commissioll~ftll be

~

L

/

a superior officcr who:

B5

(i)

either knew. or consciously disregarded information which clearly indicated, that subordinates
were committing or about to cummit an enforced disappearance. lind who

(ii)

failed to take all nccessary and rcasonable measures within his or her power to prevent or
repress the enforced disappearance or 10 submit thc matter to the competent authorities for
investigation and prosecution.

(former 6) An order of a superior officer or n public authority may not be invoked as a justification of an
enforced disappearance.

Article 4
1.

Each State Party shall make enforced disappearance punishable by appropriate penalties which take into
account its extreme seriousness.

2.

Each State Party may establish:
a)

mitigating circumstances inter alia for persons who, having been involved in the commission of an
enforced disappearance, effectively contribute to bringing the disappeared person forward alive, or
contribute to elucidating cases of ent'orced disappearance or identifying the perpetrators of an enforced

. - - -__-dw·i.il.IlJllJ:JlQance.

B5

b) (complemented) Aggravating circumstances inter alia in the event of death of the victim or the
commission of an enforced disappearance in respect of pregnant women, minors or other particularly
vulnerable persons.

ArticleS (modified)
Without prejudice

~ arti~i~";~;::'"

I

B5

-------------------

---J

""---_ .....

J.

Each State Party which applies a statute of limitations in respect of enforced disappearances shall take the
necessary measures to ensure that the term of limitation for criminal proceeding.~ :
a)

is of long duration and proportionate to the extreme seriousness of the offence' /

b)

shall commence from the moment when the offence of enforced disappearance ceases and the fate of
the disappeared person is established.
---

\

2.

The statute of limitations for criminal proceedings under paragraph 1 shall be suspended in a State Pa
long as an victim of enforced disa compce does not have an effective remed .

B5

..
B5

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(d'I<I'dll

M6d, 8

3

B5

------------------------.,--

Article 9 (reorgOlli.ed alld modified)

I,

O

Each State Party shall take such measures as may be necessary to establish its jurisdiction over an enforcet!
disappearance;
---il)

when the offence is committed within any territory under ils jurisdictio!.!..or 011 board a vessel fiying its
illig or an aircnlft registered in accordance with its lawai tfie time 0(',1t!,!;hc~',o!.!m!.!ic!!Cii.·

B5

,

5
b)

r:.~:~~~~~~~~:::--------------~

c)

when the disappeared person is one-2fj!~ !lati®ills and the State deems it nppropriilte to do so.

2. Each State Party shall also take the necessary measures to establish its jurisdiction over an enforced ' - disappearance when the alleged perpetrator of the offence is in a territory under its jurisdiction, unless the
State elttradites him or her or transfers him or her to another State or surrenders him or her to an
international criminal tribunal whose jurisdiction it has recognised.
3.

--'

rThe prase'" instrumellt] does not eltclude nny criminal jurisdiction exercised in accordance with national

laws.

I.

B5

B5

Article 10

Upon being satisfied. after an examination of infonnation available to it. that the circumstances so warrant,
any State Party in whose territory a person alleged to have committed an enforced disappearance is present,
shall take him or her into custogy or tnky other legal measures to ensure his or her prs;senc~. The custody
and other legal measures shall be as provided in the law of that State but may be continued only for such
time as is necessary to enable any criminal or e,;tradilion proceedings to be instituted.

2. The State Party which has taken the meaSures referred to in paragraph I shall immediately make an
investigation into the facts. It shall notify the States Parties which may have jurisdiction in accordance with
paragraph I of article 9 of the measures which it has taken under paragraph I of this article, particularly of
the fact that such person is in custody and of the circumstances which wnrrant his or her detention, the
findings of its investigation and shall indicate to those Stales' whether it intends to exercise jurisdiction.
3.

Any person in custody pursuant to paragraph I shall be assisted in communicating immediately with the
nearest appropriate representative of the State of which he or she is a national, or, if he or she is a stateless
person, with the representative of the State where he or she usually resides.

Article 11

I

I

B5

I. The State Party in the territory- under whose jurisdiction n person alleged to have committed any enforced
disappearance is found shall, if it does not extradite him or her or transfer him or her to another State or
surrender him or her to an inlernationa) criminal tribunal whose jurisdiction it has recognised, submit the
case to its competent authorities for the pu~pose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a
serious nature under the law of that State. In the cases referred to in paragraph 2 of anicle 9, the standards of
evidence required for prosecution and conviction shall in no way be less stringent than those which apply in
the cases referred to in paragraph I of article 9,

B5

~hall

3.

(modified) Any person charged with an offence of enforced disappearnnce

be tried by an independent
and impartIal court, duly established by law, which guarantees the right to a faTr"irial.

4.

(new) Any person regarding whom proceedings are brought in connection with an enforced disappearance

shall be ~~'!f~~IE~~~,~~~~ ..~~ all stages of the proceedings.

I

I

B5

'--7

Article 12 (mC!dijied)

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4

I.

Ench State Party shall ensure that any person who alleges that sOlUo::one has been subjected to enforced
disappearance /las the right [0 complain to a competent authority, which thoroughly investigates the
complaint immediately and impartially. Appropriate steps shall be taken. where necessary, to ensure that the
complainant, witnesses. the relatives of the disappeared person and their defence counsel as well as those
participating in the investigation nre protected against all ilI-trentment or intimidation as a consequence of
the complaint or any evidence given.

2.

Whenever there are reasonable grounds to believe that II peT!;on has been subjected to enforced
disappearance, any State Party shall refer the matter 10 the authority referred to in paragraph } for it to
launch all investigation, even jf there fins been no formal complaint

3. (mnl').Each State Party shall ensure that tL authority rlferred to in paragraph I:
a)

B5

B5

hn.~ the necessary powers llnd resources to conduct the investigiltion, including the power to compel
suspected perpetrators and witnesses to appear before it,

b) is communicaled the necessary information for its investigalion;
c) has access to any place where it is suspected that a disappeared person is present.

4. (former /2.6, complemented) Ench State Party shall take the necessary measures to prevent and punisn acts
of such a kind as to inhibit the progress of investigations. It shall ensure. particularly, that persons suspected
of having committed an enforced disappearance are not in a position to influence the progress of the
investigations by means of pressure or acts of inlimidation or reprisill against the complainant, the witnesses,
the relatives of tbe disappeared person, the defence counsel as well as those participating in tbe
investigation..
5.

B5

(new) The investi/Etio!' pursuant to the present article slllill be cOlldu~ ill confonnity with international

principles for investigations on human tights violations, torlure. searCh of disappeared persons, forensic
examination and identification.
Article 13 (modified)

\

1.

For purposes of extradilion between States Parties. enforced disappearance shall be considered to be neither
a political offence, nor an offence related to II political offence or an offence prompted by political motives.
Consequently, II request for extradition bnsed on enforced disappearance cannot be refused solely because it
concerns a political offence, an offence related to a political offence or an offence prompted by political
motives. .

2.

Enforced disappearance shall aUlomatically be included among the extraditable offences in every extradition
treaty concluded between States Parties before the entry into force fojthe present instrument).

3.

States Parties undertake to include tile offence of enforced disappearance among \he extraditable offences in
every extradition treaty to be concluded subsequently between them.

4.

If a State Party which makes extradition conditional on the existence of a treaty receives a request for
extradition from another State Party with which it has no extradition treaty. it may consider {the preselll
instrument] as the legal basis for extradition in respect of enforced disappearance.

5.

Any State Patty which does not make extradition conditional on the existence of a treat)' shall recognise the
offence of enforced disappearance as extraditable.
.

6.

Extradition shall. in aU cases, be subject to the conditions provided by tIle law of the requested State Party or
by applicllble extradition treaties, including, inter alia. conditions in relation to the minimum penalty
requirement for extradition lind the grounds upon which the requested State Party may refuse elCtradition or
subject extradition to conditions.

7.

No provisiol) (of (he presem insrrumemj shall be interpreted liS imposing an obligation on the requested
State Pa.rty to extradite if that State has serious grounds to believe that the request was put forward for the

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5

purpose of prosecuting or punishing a person 011 ,\ccount of his or her gender, race, religion, nationnlity,
ethnic origin or political opinions, or that to allow the request would cause harm to that person for ally one
of those reasons.
Article 14 (modified)

L

States Parties shall provide one another the grcate.~t measure of legal assistance ill connection with any
criminal invcstigation 01' proceedings brought in respect of enforced disappearance, including the supply of
all evidence at their c/isposallhat are necessary ~or the proceedings.

2.

Such legal assistance is subject to the conditions provided by the domestic hlW of the requested State Party
or by applicable treaties tm mutual legal assistance, including, particularly, concerning the grounds on
which the requesl<;:d State Party may refuse to provide legal assistance or subject such assistance to
conditions.

Article 15 (modified)

B5

States Parties shall co-operate with one another and shall provide one another th grea es measure of
assistance with a view to assisting victims of enforced disappearance, and in searchin ,locating and releasing
disqppcared persons and, in the event of death, in their exhumation, identification and I'6Stt!lL. of their
I
I
remains.
.

B5

Article 15 his (former 21)

I.

No State Party shall expel. return ("re/ouler") or extradite a person to another State where there lire
substantial grounds for believing that he/she would be in danger of being subjected to an enforced
disappearance.

2.

For the purpose of determining whether there are such grounds. the competent authorities' shall take into
account all relevant considerations. including, where applicable, the existence in the State concerned of a
consistent pattern of gross, tlagront OT mass violations of human rights or of humanitarjan law.

Article 16 (reorganised and modified, see 16 his below)

I.

Each State Party shall, under its law,
a)

indicate those officials who are authorised to order deprivation of liberty;

b) establish the conditions under which such orders may be given;
e)

guarantee that any person deprived of liberty shall be held solely in an officially recognised and
c nt ed lace'
t e judicial authorities to places of deprivation of liberty;

e)

2.

B5

guarantee that any person deprived of liberty, in all circumstances, shall have the right to bring
proceedings before a court which shall rule without delay on the lawfulness of the deprivation of liberty
and order his or her release if that deprivation of liberty is unlawful.

Each State Party shall compile and maintain one or several official up-to-date registers of persons deprived
of liberty. The information contained in these registers shall include at least the following:
a)

the identity of the person deprived of liberty,

b)

the authority having decided the deprivation of liberty,

c)

the authority controlling the deprivation of liberty,

d)

the elate and time of admission in the place of detention and the authority responsible for the place of
detention,

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e}

The date and time of liberation or transfer to another place of detention, the destination and authority in
charge of the transfer.

.....
~----------_-:..._--------------,\

Article 16 his
I.

2.

3.

6

B5

Each State Party sh;it "'guarantee the person deprived of liberty, his or her relatives, their legal
representatives, their counsel, and any person authorised by them, as well as any person able to claim II
legitimatc interest access, as a minimum, to the fol1owing information:
a)

the authority to which the person has been handed over;

b)

the authority having decided the deprivation of liberty;

c)

the authority controlling the person deprived ofliberty;

d)

the whereabouts of the person deprived of liberty, including in case of tmnsfer;

e)

date and place of relense;

f)

state of health and, in the cvent of death, ci rcumstances and causes of the death.

Appropriate measures shalt be taken, where necessary, to ensure the protection of the persons mentioned in
paragraph I as well as the persons participating in the investigation against all ill-treatment; intimidation ~or~
any sanction on the grounds of the search of information concerning a person deprived of liberty.

-I

(new) In order not to jeopardise the privac~ of the m:rsons c~, Ihe information transmitted Pu!~~ n
to paragraph I of Ihe present article shall~e ade9ua~ and pertinent with res~cl to the purpose purs~eci;and
shall not be used for other purposes than I e search of the person depri:ved of liberty.
.0::::::.
___

" _ " . ~

••

"'~

~

••_

••

••••••

_._.........

...

Jo,"'"

. . . . . ., _ _

Arlicle 17
Without prejudice to consideration of the lawfulness of a deprivation of liberty, States Parties shall guarantee
. to the relatives of the person deprived of liberty or of a disappeared person, their legal representatives, their
counsel and any person authorised by' the person deprived of liberty or the disappeared person or by his/her
relatives, as well as any other person able to claim a legitimate interest the right to a prompt and effective
remedy as a means of obtaining without delay the information referred to article 16 bis. This tight to a
remedy may not be suspended or restricted in any circumstances.

Arlic1e 18 (complemented)
Each State Party shall take the necessary measures to ensure that Ihe release of persons shall proceed in a
manner that allows reliable verification that they have actually been released. Each State Party shall also take
the necessary measures so that the physical integrity of all such persons nnd their ability to exercise fully
their rights are assured at the time of release, without prejudice to the obligations to which such persons may
be subject in accordance with the law.

Arlic1e 19
Each State Party shall take the necessary measures to prevent and punish the follOWing actions:
a)

delaying or obstructing the remedy referred to in article 17;

b)

failure to the obligation to register every deprivation of liberty and registration of information which the
official responsible of the register knows or should known to be inaccurate;

c)

refusal by an official to provide information on the deprivation of liberty of a person, or the provision of
inaccurate information, even though the legal conditions for this information to be provided have been
fulfilled.

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7

Article 20 (col1lplemelltcd)

I.

Each Stale Pllrty shall ensure Ihnt the training of law enforcement persollnel. civil or military, medical
personnel, public officials and other persons who may he involved in the custody or treatment of any person
deprived of liberty shall include the necessary education and information on the provisions [of tile I,resellt
illSfrimlellt] , in order to:
a)

prevent the involvement of these officials in enforced disappcarnnces;

b)

draw attention to the imporlance of prevention and investigations concerning enforced disappearances;

c)

ensure that the urgent need to resolve cases of enforced disappearance is acknowledged.

2.

Each State shall prohibit orders or instructions commanding, authorising or encouraging enforced
disappearance. Each State Party shall !,'Uarantee that a person refusing to obey such order will not be subject
to sanction.

3.

Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph I who
have reasons to believe that an enforced disappearance has occurred or is planned communicate the matter
to their superior authorities and, when necessary. to comp'etent authorities or organs with reviewing or
remedial power.

Article 21 (see IS bis)
Arfrele 22 (modified and complemented)
I.

For the purposes of [tile prcsent irlStrul1Ielll], "viCtim" means the disappeared person and any natural person
who has suffered direct harm as a result of that disappearance.

2.

Each State Party shall take the necessary measures so that any victim knows the truth concerning the
circumstances of the enforced disappearance and the fate of the disappeared person. It shall, in particular,
tllke the necessary measures to search for. locate and release disappeared persons and, in the event of death.
return the. human remains.

3.

Each State Party shall guarantee the right to obtain prompt, fair and adequate reparation for the harm caused
to victims of enforced disappearance.

4.

The right to obtain reparation referred to in paragraph 3 includes integral compensation for material and
non-material damage. It may also include, in particular:

5.

a)

restitution,

b)

rehabilitation.

c)

satisfaction,

d)

restoration of honour and reputation.

Without prejudice to the obligation to continue tlic investigation until the fatc of the disappeared person is
elucidated, each State Party .~hall take the necessary mea.~ures with regard 10 the legal situalion of the
disappeared persons who's fate has not been elucidated and of their relatives in fields such as social
protection, financinl matters. custody of children and property rights.

Article 23 (complemented)
1.

Each Slate Party shall take the necessary measures to prevent and punish in a criminal court:

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2.

8

a)

the abduction or appropriation of children victims of enforced disappearance, children whose falher or
mother is victim of enforced disappearance or children born during the detehtion of their disappeared
mother;

b)

the falsification or suppression of documents attesling to the Irue identity of a child referred to in
sUbparagraph (a).

Each State Party shall take the necessary measures to search for and identify children referred to in
subparagraph (n) and (b).

Article 24
State Parties grant eaeh other assistance in the search for, the identification and the location of children
referred to in article 23.

Article 2S
I.

When a child who has been abducted or appropriated in the circumstances described in article 23, paragraph
(a), is found on the 'territory of a Stllte party, the question of the child's return to his or her family of origin
shaJl be resolved either under the domestic law of thai State party, or under the bilateral or multilateral
agreement which that State has entered into with another State in which the family of origin lives.

2.

In all cases, the best interests of the child are a primary consideration. and a child who is capable of
judgement shall have the right to express his or her views freely and to have them given due weight in the
light of his or her age and level of maturity.

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9

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Article 0 (/lew)
I.

A [mollitoring bo(~v] shall ensure the implementation of the Ipl'c,w:Ilt instru/I1e11l1 and the respect by State
Parties of their comm~it~m~e~nls~._ - - - - - - - - - - - - ,

2.

While exercising their man a ,
SOle lIlollltorillg fwdy] shall be entitled to privileges lind
immunilies as laid down in the Convenlion on Privileges lind Immunities oflhe United Nations.

3.

Each Slate Parly shall undertake to co-operate with the [lI1o/liwl'illg 11Od.l'1 and 10 grant assistance to its
members in the exercise of their mandate.

B5

Article ll-A (modified)

I.

Each State Party shall submit to [lire monitoring ho(~)'], through the Secretary-General of the United Nations,
a rep0l10n the measures taken to give effect to it.~ undertakings under [tire prescllt instrument], within one
yenr after the entry into force (of the l'resc!/lt instrument] in respect of the State concerned.

2.

The Secretary-General of the United Nations shalltrunsmit the reports to nil States Parties.

3.

Each report shall be considered by [tile 1II0/lilorillg bod)'], which may make such comments, observations,
recommendations aod warnings as it considers appropriate. The State Party concemeQ shall receive
communication of such comments, observations, recommendations and warnings, to which that State may
respond, on its own initiative or at the request [of the monitoring body).

Article [J·B (modifUd)
I.

Each .State Party or the relatives of a disappeared person, their legal representatives, their counsel, and any
person authorised hy them, as well as any person able to claim a legitimate interest may submit a request to
[the monitoring body) to seek and find a person who has disappeared within the meaning of article 1.

2.

Should {the monitoring body] consider that a request submitted under paragraph I is not manifestly
unfounded, that it does not constitute an abuse of the right of submission and that it is not incompatible with
the provisions (of the presellt instrument] [the 11lonitorirlg body] shall request any State Party to provide
information on t~ situation of that person, within a time-limit set by [the monitoring body].

3.

In the light of the response provided by the State Party concerned in accordance with paragraph 2, [lhe
monitoring body] shall make a recommendation or give a warning to that State. (The monitoring body) may
also instruct that State to take appropriate measures and to report to it on those measures, within a time·limit
set by [the monitoring body].

4.

[The mOllitorillg body) shall establish its conclusions and forward them to any State Party which has been
requested to provide information and to the author of the request referred to in paragraph I.

5.

The procedure under this article is confidential.

Article lI-C (modified)
l.

If [the II/rmirorillg body] considers that a visit to the territory of a State Party under whose jurisdiction a
disappeared person could be is essential in order to respond to the request submilled to it in accordance with
Article II-B. (the mOllitoring body) may request one or more of its members to undertake an investigation
mission lind to report back without delay. The member or members [of/he mOlliwrillg JmdYJ conducting the
mission may be accompanied if necessary by interpreters. ~ecretaries and experts. No member of the
delegation, with the exception of the interpreters, may be a national of the State Party to which the visit is to
be made.
•

2.

[The mOllito/'ing body) shan notify the State Party concerned in writing of its intention to organise an
investigation mission, indicating the composition 'of the delegation. The State Party shall inform (the

~~---JI

B5

UNCLASSIFIED
FP1140

UNCLASSIFIED

10

monitoring bod)') without delay of its agreement or opposition to the investigation mission in the territory
over which it has jurisdiction.

3.

4.

5.

If the State Party agrees to the investigation mission, it shall provide (the monitoring body] with all the
necessary facilities to enable the mission to be carried out. [The //Ionitorill/{ body] may, inter alia:
a)

make such visits as it may consider necessary [0 search for and find tlte person who has disappeared;

b)

make contact freely with any person whom it believes may provide useful information on the fate of the
person who has disappeared;

c)

have the person who has allegedly dis:lppeared brought to it and discuss with him or her in private.

[The /1uJ/litoritlg body] shall inform the foJluwing of the findings of the invc,<;tigation mission:

a)

the State Party in whose territory the investigation mission was carried out;

b)

the author of the request referred to in paragraph I of article II-B.

The procedure under this article is confidential.

Article II·C his (new)
11C monitoring body] considers a communication presented by the relatives of a disappeared person, their'
legal representatives, their'counsel. and any-person authorised by them, as well as any person able loclaim a
legitimate interest alleging grave breaches' in the implementation of the commitments taken under the
[present instrul1lent~less-1

I

2.

a)

the communication lacks sufficient motivation or is obviously unfounded;

b)

the same matter is being examined under another procedure onnternational investigation or settlement;

c)

the complainant has not exhausted all available effective domestic remedies.

B5

B5

If the [the monitoring bOt:(V] assesses that the communication fulfils the conditions under paragraph J. [the
monitoring body] transmits the communication to the State Party concerned and requests this State Party to
provide observations and comments within a time-limit set by the [monitoring bod.y]'

3.

On the basis of the answer of the State Party, [the monitorillg body] may decide:
a)

to close the matter of the communication;

b)

to continue its examination;

c)

to make a recommendation to the State Party.

4. .The procedure under the present article comes to an end when the [moniloring body] communicates the
conclusions of its investigation to the State Party and to the author of the communication.
5.

The procedure under this article is confidential.

Article ll-C ler (new)
If the (monitoring body) receives reliable information which appears to it to contain well-founded indication
that enforced disappearance is being practised in a systematic or genemJ manner in the territory of a State
Party. the [monitoring body] may seize the Secretary General of the United Nations. after having enquired
with the State Party concerned about any pertinent information and the measures taken to put an end
immediately to such practises.

Article lJ·D (integrated in /I.O§2)

UNCLASSIFIED
FP1141

UNCLASSIFIED

/I

Article Il~E (complemeJ1ted)
L

[The 1II00litO/'inS bml.") has competence solely in respect (If dcprivations of liberly which commenced after
the entry into force [oftlris ;lIstmIllC!/ItJ.

2.

Should 1I State become party to [t"i.v insl/"wllclU] after its entry into I'orce, the obligations of that State
towllrds (lIIe II/(lnitor;ng body] concern only deprivations of liherty which commcnccd aftcr the entry into
force So! Ilu:v ;1I.vlrllllltmt] in respect of the State concerned.

3.

(flew) Each State Party may at any time declare that. in its own respect.

it recognises that the [monitoring

bmM has competence in respect of enforced disappearances which commenced before entry into force of
the [preselll illstrument).

.

Article Il-F (modified)
I.

The [IIUI/I;tOrfllg "odY1 shall submit an annual report on its aClivities [ulldel' the present instrument] to HIe
Slates Parties and to the Genera! Assembly of the United Nations.

2.

(new) If. in the pwcedures under ilJ1jcles II-B nnd II-C bis. a Stale Party concerned obviously refuses to cooperate or it' the procedures yield to no effective result. the [mol/itorillg bm(yJ may decide to make an
observation public. with regard to the matter or the lliLuation at stnke.

3.

(Ilew) The Suite Party concerned shall be informed in advance of (he publication of tin observation under

paragraph 2 of the present article. This observation shall be published together with the answers. comments
or observations transmitted by the State Party within the time-limit set by the [mol1itor;lIg body].

UNCLASSIFIED
FP1142

UNCLASSIFIED

12

B5

PART III

Article 1ll -0 (former 2.2)
(The present instrument} is without prejudice to any other illternationam mT-17ITfnmn-;wo"'""..,,;;;""..,.,,"""'nTl''"""'......., - - - - - - - . . . I
does or may contain provi sions of bronder.llpplicntion.

Article m.o his (new)

I

B5
--J

Personal data, including medical or genetic data. which arc transmitted in the framework of the search of a
disappeared person shall not be used for other purposes than that of the search of the disappeared person.

Article I1l·A
I.

[The present ilmrument] is open for signature by (... ].

2.

[the present inSlrumellt] is subject to ratification. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.

3.

[The present j~tr!lmelltJ is open to accession by [... ). Accession shall be effected by the deposit of an
instrument of accession with the Secretary.G~neral of the United Nations.

Article !fl·B
1.

[The presenl inslrlltnent] shall enter into force 'on the thirtieth day after the date of deposit of the [Xth)
instrument of ratification or accession.

2.

For each State ratifying [Ihe presenl inslrumenr) or acceding to it after the deposit of the [Xth} instrument of
ratification or accession, [Ihe l"eselll illsJmment} shall enter into force on the thirtieth day after the date of
deposit of its own instrument of ratification or accession.

Artie!e lll-C
The Secretary-General of the United Nations shall inform all States Members of the United Nations and all
States which have signed [ Ihe pfesenl instrument) or acceded to it ofthe following:
a)

Signatures, ratifications and accessions under article Ill-A;

b) The date of entry into force of (the presellt instrumellt} under article III-B.

Article llI.D
The provisions of Ilhe presenr instrumenl) shall apply, without limitation or
States.

ex~eption,

to all parts of federal

Article 11l-D bis (new)
I.

Any State. upon signature, ratification or accession, may declare that (the present instrumenr] will be
extended to any territory for which it is responsible with regard to international relations. Such a
declaration will take effect when fthe present inslrumenl] enters into force for the State concerned.

2.

At any time, such an extension may be notified to the Secretary General of the United Nations and will
take effect (...) days after it has been received by the Secretary General.

Article 1l1-E (integrated in 1 bis, paragraph 2)
Article [!l·F

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FP1143

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13

{The present instrument] is without prejudice to the provisions of international humanitarian law, including the
obligations of the High Contracting Panies to the four Geneva Conventions of 12 August 1949 and the
Additional Protocols thereto of 8 June 1977, or the option available to any State to authorise the International
Committee of the Red Cross to visit places of detention in cases for which international humanitarian law does
not provide.

Article Ill-G
I.

Any State Party to [the presew instrument] may propose an amendment and file it with the SecretaryGeneral of the United Nations. The Secretary-General shall thereupon communicate the proposed
amendment to the States Parties to {the presetrt instrument] with a request that they notify him or her
whether they favour a conference of States Parties for the purpose of considering and voting upon the
proposal. In the event that within four months from the date of such communication at least one third of the
States Parties favours such a conference, the Secretary-General shall convene the conference under the
auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Patties
present and voting at the conference shall be submitted by the Secretary-General to all the States Patties foi
acceptance.

2.

An amendment adopted in accordance with paragraph I of this. article shall enter into force when two thirds
of the State Parties to [the /Jreselll instrument] have accepted it in accordance with their respective
constitutional processes.

3.

When amendments enter into force, they shall be binding on those States Parties which have accepted them,
other States Parties still being bound by the provisions of [the present illStrumentl and any earlier
amendments which they have accepted.

Article III~H
I.

[The present instrument], of which the Arabic, Chinese, English, French, Russian and Spanish texts are
equally authentic, shall be deposited with the Secretary-General of the United Nations.

2.

The Secretary.General of the United Nations shall transmit certified copies of {the present instrument} to all
States.

UNCLASSIFIED
FP1144

UNCLASSlPIED
Peay, T. Michael

RELEASED IN PART
B6

Michael Peay I

From:
Sent:
To:
SUbject:

Sunday.Novem~be~r~2~3~,~2~O~03~8~:3~O~P~M~----~

B6

Pankaj Saran
Re: Meeting

November 23, 2003
Pankaj,
Many thanks for your kind note and suggestion. I
would be quite pleased to meet with you to discuss the
upcoming WG on Disappearances. Tomorrow, I'll review
my office calendar for this upcoming week to see what
looks possible. I'm sure it will be useful whenever
we are able to meet to exchange views.
I will be away from Geneva on Thursday and Friday, so
it'll have to be early in the week. In any event, I
look forward to being in touch with you. Best
regards,
Michael Peay

I

--- Pankaj Saran
> Dear Michael, - - - - - - - - - - - - - - - - - '
>
> I was wondering whether we should not meet, perhaps
> over lunch, to exchange notes on the WG on
> Disappearances.
>
> We could set up something for next week if that is
> OK with you.

B6

>
> Sincerely,

>
> Pankaj Saran,
> Counsellor,
> Indian Mission
>
>
>
>

>
>
> --------------------------------> Do you Yahoo!?
> Free Pop-Up Blocker - Get it now

Do you Yahoo!?
Free Pop-Up Blocker - Get it now
http://companion.yahoo.com/

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
FP1145

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E/CN.4/2003/WG.221CRP.3/Rev.l
16 January 2003

ENGLISH
Original: FRENCH

COMMISSION ON HUMAN RIGHTS
Intersessional open-ended Working Group to elaborate
a draft legally binding normative instrument for the
protection ofall persons from enforced disappearance
First session
Geneva, 6-17 January 2003

DRAFf REPORT
VI. DISCUSSiON ON SUBSTANTIVE PROVISIONS'

A. Def'mitioD
1.

The delegations took the view that the definition ofenforced disappearance should

contain at least three constituent elements:
Deprivation of liberty in whatever Conn;
Refusal to acknowledge that deprivation of liberty;

Removal ofthe disappeared person from the protection of the law.
e definition must also take into consideration the perpetrators of the enforced

B5
B5

disappearance. In this respect, many delegations considered that the instrument should in the
first place refer to agents of the Sta!e and ~

'" Some dele ations thou t it would be

worth examining the role

GE.03-10253 (E)

140103

140103

I
UNITED STkES DEPARTMENT OF STATE
REVIEW AUfIiORITY: ARcHiE 1\1 BOLSTER
DATE/CASE In: 23 JUN 2009 200706444'

UNCLASSIFIED
FP1146

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page 2

and situation of persons ~ommonl ailed <Cnon-State actors". For most delegations, States bore
B5

the prime responsibility for preventi-n and punisJUng enforced disappearances, includin

"
perpetrated by non-State actors"-#l~.'~mJID!..rg~~!y
3. Other aspects were mentioned: the duration of enforced disappearances,

~e instrument in time ofwarfare, an~ poSSit'e eon,e, orexemnli:: in me orin""".)

dIsturbances.

_

_.
B5

B. Definition of offences and penalties
Enforced disappearance as an independent offence in domestic criminal law
I

4.

According to some delegations, States should ensure that each act leading to an enforced

disappearance constitute an offence under their criminal law. In the view of the other
participants, States should have t~ define enforced disappearance as an independen~ offence in
their domestic criminal law. That would better reflect the coml?lexity of enforced
disappearances, would make criIIiinal sanctions more effective and would make it.easier to
establish roles concerning specific aspects on the offence, sucb as statutory limitation, exemption
of responsibility and extradition. It was recalled that the institution of independent offences in
.
.
domestic law was supported by the Committee against Torture, the SpeciaJ Rapporteur on torture
and the Working Group on Enforced Disappearances.
5.
diversi

f national law s stems

appearance as a crime against humanity
6.

B5

In the opinion ofseveral dele ations the future instnunent should take acco

'"-------------..

Most speakers wished that the systematic or massive practice of enforced disappearances

should be referred to in ~e instrument as a crime against humanity. Several speakers pointed
that the systematic nature of violations implied forward planning.

The SUbjective element as a constituent element of the offence of enforced di
7.

According to article 2, paragraph 1, of the Sub-Commission's dr

the offence of forced disappearance should be punishable only j
known that the offence was about to be or'

e perpetrators of

knew or ought to have

process of being committed. In the same

B5

FP1147

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.UNCLASSIfIED C

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ElCN.4/2003/WG.22/CRP.3

page 3
spirit, article 3, paragraph 2, ofthe draft suggested that the perpetrators of forced disappearances

constituting crimes against humamty should be charged only where they tolew or ought to have
known that the act was part of a systematic or massive practice of forced disappearances.

Several speakers took the view that, for the sake of the effectiveness of criminal justice, sucb
limitations should not be included in the future instrument. Other participants, on the other hand,
thought-that the clause was worth preserVing.
8.

The Chairperson concluded the debate in the following way:
-

Enforced disappearances constitute crimes.

However~

the question remained of

defining the offence ofenforced disappearance as an independent offence in domestic
law;
-

The Wqrking Group will have, to specify under what circumstances, ifany, certain
enforced disappearances should be considered as crimes against humanity (massive,
systematic, or widespread character);

-

The Working Group identified the main elements of incrimination (attempt,
conspiracy, collusion, instigation and incitement). It should
detail

dissimulation, responsibility incurred for

with gr,eater
failure to act, and the

resp nsibility ofhierarebical superiors;
-

Wi
e

regard to sanctions, the Working Group might use the

rt ofwording used in

ting texts, and in the Sub-CotkuSsion's draft, whereb penalties should be

,

equate and proportional to the gravity of the offence.

B5

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RELEASED IN-PART
B4, B5

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Distr.
RESTRICTED

E/CNA/2003/WG.22/CRPAlRev.1
16 January 2003
ENGLISH
Original: FRENCH

COMMISSION ON HUMAN RIGHTS
Irltersessional open-ended Working Group to elaborate
. a draft legally binding nonnative instrument for the
protection of all persons from enforced disappearance
Geneva., 6-17 January 2003

I

DRAFT REPORT
VI. DISCUSSION ON SUBSTANTIVE PROVISIONS (continued)

C. Protection against Impunity
1.

Several speakers asked whether it was possible to include a general clause requiring

States to take the necessary steps to combat impunity. In the view of the.other participants, it

was preferable ~o indicate clearly in the future inStrument the various measures that should be
taken in that regard. in order to set out States' obligations clearly.

1. Statute of limitations
2.

Emphasis was placed on the non-applicability of statutory limitations to forced

disappearances that constituted crimes against humanity.
3.

In the case offorced disappearances that did not constitute crimes against humanity, most .

speakers considered that, in view ofthe continuing nature of the offence, the limitation period
should begin from the moment when the case was clarified. However, some participants
considered that the period should run from the moment of commission of the offence. Another
delegation considered that, in the case ofpersons who had revealed their participation in
co~tting

the offence, the period should begin from the moment of the confession.

GE.03-10346 (E)

160103

160103

!

ST~TES DEPART~ENT

UNITED
OF STATE
REVIEW AUfHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

UNCLASSIFIED
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UNCLASSIFIED
E/CN.4/2003/WG.22/CRP.4
• page 2
4.

B4
I,

S.

The need to allow for ~e' pOsSib~ity'~f suspending l~ta~on'pcnods, in c~ ~here

,..

effective remedies were rendered impossibl~ ~y the's~~~ori. in the country! was rai~e4;
.. ,

6.

'

.....

"."

....

/-

2. Immuaity ~~ spedBl courts,

The question was raised of whether the fUtUre inst:rwIlen~ should. ban special :courts,

especially military courts, from tr>1ng cases of for~ed disappearance. 'FO.T. some'dele~tio~
special courts could be useful in speedily resol~ng cases·in c~ circwltstances;

ai.were· .

acceptable as long as they remained impartial and resp~ted the ~cipl~ qf tho·ri~t'

..

~

tp .~ fair
'

trial. However, several speakers pointed Qut that f.ntemational'law was tending increlisingly to

mle out the use of such co~ to try serious violations' ofhuman 'r;j' ts" It was.Wlderlliled tb.

B5

the use of military courts verY ot\;m led to situatio~ of in:ipumti;

7.

The 1992 Declaratio~ and the 1~8.~ p~Vid~ that, ~o ~pi"i'Vtlejiii;iiiiiiiiiii~~~"""

special exemptions s~ould be admitted in,trials ~fpeisoJlS responsible for·(orce(i'.dis~~aranc

However. some deiegations considered that exceptions s~Uld b!, allowed rot- p~etrators

who L.-._~' L
agreed to reveal information of~ in ~ii~g·the'~:'O~edel~gati9ncODsi~.t~
other groWlds for plea bargaining 'available in dOniestic'la~J;iti'gh~ ~~ ~ USed. Sever:at'

participants considered that plea bargaining ~ho~i~ npt'I~~:tO c~ple~ ~on~~tion'fto~' .
responsibility. Lastly, it was noted'that some legal Systems allowed agr~em~ts to·.be reached .

b~tween petpetrat~~~ and vi~tim~.~ne,~eie~~~ COil::'d:~tb:t lb.: fu~t:dl::~~~ S~OU~d:

B5

stipulate that no pnVlleges, munumties.or exemptio~---=".n"1u-:-....,~~tar as they:

w~re in keeping with its aim and pUIpose. 'and ~th~ut Prejudice to :the ~viieg~ i~unitiea ~r
exemptions recognized in intematio~JaW~ in~lud~g·Ul,eVi~qOn;~tion'QriDiplomarl~ .
:~

Relations,
3.
8.

~

..

'

.. ,.

~llIm

Several delegations emphasized the nee~ to iink the' obli~ati~n not to' ~t'~Yl~ or

shelter to persons suspected

of participation ill a' forced di~earance with, the obligation not ~

re_tum_-=re",--u..,ler) such persons ro'a State wh~ they'~~ nm, .the risk o~'b~iilg subj~;~
mollS

tc=J

rights violations. It was poin~ed out,that the ~ Conv:emion includ~d Such a

.

B5
B5

However, some delegations considered that ~ ooligation'not ~o return (refouleT)

UNCLASSIFIED
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(
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page 3

..

contained in article 15, paragraph 1 of the draft Gonvention should be limited to cases where
there was a risk of enforced disappearance. The .risk of grave violations of human rights w~
considered too large. HeR presented to the working group the exclusion clause contained in
article IF oithe 1951 Geneva Convention relating to the Status ofRefugees.
9.

Some speakers considered that it was difficult to provide for a total ban on the granting of

asylum to persons responsible for fo~ed disappearances, particularly in the case of those who
agreed to reveal information of use in establishing the tJUth.
4. Amnesty and pardons
10.

Some delegations considered that, instead of banning amnesty for those responsible for

forced ~sappearances, as in the 1998 draft, States should be recommended to take into
consideration the extreme seriousness of acts leading to forced disappearances. Several
participants said that they were not opposed to amnesty in cases of forced disappearance which
did not constitute crimes against humanity. Others, however, considered that before amnesty
was granted. a n~mber of conditions must be fulfilled: an inquiry leading to the establishment of
the tJUth; adequate compensation for the victims; and sanctions against the perpetrators.
S. Other grounds for exemption from criminal
responsibnity, mitigation and aggravation

11.

Some delegations considered that it should not be possible for orders from a superior to

constitute a ground for exemption from responsibility, 9.or a mitigating circumstance, either in
peacetime or in' wartime. Several participants considered that the responsibility ofthe superior
should be established, independently ofthe subjective element referred to in article 9,
paragraph 3 ofthe draft Convention.
12.

One delegation considered that mitigating circumstances might be accepted, but that they

s~ould be more strictly defined

13.

than in article S. paragraph 2 ofthe draft Convention.

Some participants considered that severer penalties should be applicable when the

victims were vulnerable persons (the disabled, the elderly, pregnant women, children etc.).
14.

The Chairperson summed up the discussions as follows:
-

It had to be decided whether the instrument should contain a general obligation or

more specific protection measures against impunity; .

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., .,page4

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-=----.,There was a strong convergence of views'tiat tit III

21 II &R statUte or

\

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In~ations

forced disappearances which co~tituted crimes against humanity. Where
nces under the ordin

BS

law were concerned•.

ongest mutation penod stipulated In omestIc aw s u e app Ie
remained the question ofthe point when the limitation period should begin;
The Working Group considered that inununity should be restricted to the maximum
possible extent.

unities which were based on international
BS
BS

law should b
on domestic la
-

Amnesty and pardons should not have the result ofpreventing fair material
compensation and non-pecuniiU'Y damages;

-

The use ofspecial courts, especiaJIy military courts. prompted much concern;

-

In the matt~ of the granting of asylum or shelter to persons suspected of forced
disappearances, the Working Group's goal should be to eliminate sanctuaries which
could be exploited by those responsible for forced disappearances;

-

.

.

Several delegations raised the question of measures to be taken in respect ofpersons
who had cooperated with the judicial authorities. That covered both the issue of
immunity or reduced sentences and that ofterritorial asylum;·
It was suggested that the' future instrument should set forth a form of "duty to

disObey)rders and instructions relating to forced disappearances.
BS

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RELEASED IN PART
B5
Distr.
RESTRICTED

ElCN.4/2003/WG.221CRP.5/Rev.l
16 January 2003 .

ENGLISH
Original: FRENCH
COMMISSION ON HUMAN RIGHTS
Intersessional open-ended Working Group to elaborate
a draft legally binding normative instrument for the
protection of all persons from ~orced disappearance
First session
Geneva, 6-17 January 2003

DRAFf REPORT
VI. DISCUSSION ON SUBSTANTIVE PROVISIONS (continued)
D. Domestic prosecution and international cooperation
1. Establishment of the jurisdiction of domestic courts
L

Several participants came out in favour of the wording contained.in articles 6 of

the 1998 draft and 5 of the Convention against Torture. That would lead the State to establish
its jurisdiction, in the matter ofenforced disappearance. in cases where the offence is committed

,

within that State's territory, where the offender or victim is a national ofthe State, or where the
offender is present in the territory of the State and is not being extradited.by the latter. This

con~erns the question of the universal or quasi-universal jurisdiction.
2.

. Some delegations commented that torture often arose in cases of enforced disappearance.

In the future instrument, therefore, the basic rules regarding the jurisdiction of States should at
least be similar to those provided in article 5 of the Convention against Torture.
3.

Some participants commented that it was always preferable to hold trials in States where

the enforced disappearance had occurred. especially for the sake of the victims. The jurisdiction
of other States was provided only as an additional facility. States.should also be encouraged to
investigate and prosecute under their own legislation.
GE.03~10350

(E)

UNITED)ATES DEPARTMENT OF STATE
REVIEW
ARCHIE M BOLSTER
DATE/CASE ID: 02 JUL 2009 200706444

160103

160103

~HORITY:

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'. n'ofjurisdictiop was directly'rela;ted t

Several delegations made the point.

that of the definition of the offence of disappearance1 and that the group ~ still not agreed
osition' tha

5,

t

--'·2•.Extradition and, jUdlei~ toop~~tion'

1.....-

on a

,

Several participants were in favour ofin~ludUig precise ruleS regarding·~~tradition in the

instrument, in order to avoid any possible ~ in that,respeet and to ensure bettcf awiicati~n of
the principle aut dedere autjudicare; It 'was pointed·out·thai in the draft Convcntiol:1. th~
obligation 'to'judge existed, even when no extraditio~ bad
,

6. .

been r~ed.

,

According to the draft Convention, enfOrced,disappearance was n~t cO~de~ed as a

political offence for the purposes ofextradition. AccordUig'to'some speakers. eVen though that,

clause was no't specifically stipulated

mthe 1992 Declaration, it ~d' appear iii: '~y otlier

international and regional instruments.
.

the provision had. been drilfted oecanse many ex'tradition
.'

'

treaties forbade extraditions for political offences.
7.

One delegation stressed the need to disc~

the question of'death p~alty in the context of
,

, ,

the debate regarding extra~ition.

eI

Some speakers said that the draft Convention, which ~stricted judicial ~ooperatio~ to

the penal field, needed improving in that re~ect. Other areas of cooperation shoUld be added,
especially in ciVil matters (of.particular i.:l1ponanc~ for dis~pcllted children)., ~ermore,
several delegations felt that, as, with the provisions on extradj~on, the future ins~eDt. in fu'~

absence of any treaty of j~dicial cooperatio~be~~~ ihe Sta~es,'~~nc~~ ~~uld ,s~e as a
legal basis for such cooperation. It would t:berefore be worth' drawing up a list ofminin1um
investigatory measures which a State party ci?~l~ iequ~t of
.

another
instance
. ' Sbrte' PartY. fC?i
.

in terms of gathering
evidence, or ciurying out searches
or seizuies. I~ was·also
poin,ted out
.
.
.
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that the need for judicial cooperation in the area ~f fore '

,<p'

pean,tlces was '
B5

essential.
The Chairperson summed up' the dis~ion as follows:
The establishment of the broadem. possible jUri.sdicti~n for domestic criminal cm¢s'
with respe~t to enforced disappearance'appeared'to be eis~ti~i'ifth.e

fu~'

'

instrument was to be effective. Consideration,might be given in'that respe:et'to the, .
quasi-universal jurisdiction mechaID.sm ~sed by se~cral.~ther.

inultiiat~at instrumrmis;

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Wi~ regard to international cooperation, extradition and judicial cooperation were

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two basic mechanisms, the use ofwhich should be f~ilitated and encouraged. In the
absence of a bilateral treaty, the future instrument could serve as a legal basis for
extradition;
-

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The principle of aut dedere autjudicare was mentioned several times: the idea was
to eliminate access to sanctuaries fOT the perpetrators of forced disappearances.

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, ElCN.4/2003/WG.221CRP.6
16 January 2003
E~GLISH

Original: FRENCH

Intersessional open-ended Working Group to elaborate
a draft legally binding nonnative instrument for the
protection ofall persons from enforced disappearance
,
First session
Geneva, 6-17 January 2003
DRAFt REPORT
VI. DISCUSSION ON SUBSTANTIVE PROVISIONS (continued)

D. Prevention

B5

1. Sapervision of detentions
1.

On the basis of the draft Convention and -the proposals drawn up by the independen

expert Manfred Nowak. the participants prep;lred an initial list of State obligation'':7;:;;;-;;;;:=;r.;,:-<::::,"_...J
supervision ofdetentions (see below).
Probibition of incommunicado detention

2.

an~ of secret

places of detention

The participants considered that this prohibition should be absolute.

.

Register of detainees

3.

Several participants considered that such registers should be made available to anyone

with a legitimate interest in obtaining such information.
4.

A few delegations pointed out that the specific structure of some States, for example

federal States or States which had devolved a certain amount of power to their provinces. might
make it difficult to keep a central register. Several solutions were put fotward: the registers

GE.03-10354 (E)

UNITED STATES DEPART;t\1ENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 23 JUN 2009 200706444

170103

170103

UNCLASSIFIED
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cJuld be maintained by the federated States, or a register of places of detention could be kept at
the. federal level. [n any event, it was vital that r~gistration of detainees should be carried out at
two levels, which was the only way to cross-check information, and hence ensure efficient
. supervision.

Respect for the right of detaioees to notify their lawyers, families and any persous with a
legitimate interest of their situation
5.

A few delegations considered that immediate notification of a lawyer and persons with a

legitimate interest, as provided for in the draft Convention mi

t constitute an e cessively

. should elapse between arrest and notification,
6.

B5.

t of time

onerous requirement, bearing in mind provisions 1

e~aJlY in serious cases.

A discussion took plac~ on the need to guarantee the right to respect for the privacy of the
.

I

detainee, without enabling the authorities'to conceal the detention, against the wishes of the
detaine~.

l:)ome speakers considered that the right to respect for privacy was not affected insofar

as the information was communicated confidentially to specific individuals.

Institution of mechanisms of habeas corpus and other guarantees against arbitrary
deteotion
.
7.

The importance ofsuch mechanisms was emphasized. It was also pointed out that under

the draft Convention there was no derogation from the right to a remedy.
8.

The importance ofjudicial supervision of detention was emphasized. The draft

Convention provided that other au*orities would be competent to perform that function. In that
regard, it was suggested that use might be made of the formula "other officer authorized by law
to exe~ise judicial power" from article 9 ofthe International Covenant on Ci~l and Political

Rights.

Obligation to conduct an investigation
9.

Attention was drawn to the special importance of investigations, which could halt the

process of disappearance.
10.

Several participants considered that it should be possible for the investigation to be

initiated not only at the request ofth~ family but also automatically when there were grounds for
believing that a person had been the viqtim of a forced disappearance.

11.,

According to several speakers, the body responsible for the investigation must be

independent from the institution being accused, and must be capable of conducting an impartial .
investiglltion. It must be provided with the requisite resources and powers, as well as sufficient

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aJthori~ to conduct the investigation spee~ly anp efficiently. Last~~, one delega~~n

emphasized that article II of the draft Conventi~n, under which the authority receiving the

.

.

complaint must immediately proceed to an investigation, took no account of the fact that some

B5

authorities, such as national parliaments, might not have the power both to receive complaints

and to investigate.
The need to punish agents of the State wbo are guilty of obstruJ;tioQ

12. . In the view 0rmost Ofthe::iCipanis, the penalties laid ~o
sanctions. The draft <All!; liliiA cnura aiso ensure that no ~feel~"'iM_IaR • • •*",on

B5

the part of agents was created.
. The need to suspend persous suspected of forced disappearances from
the duration of the lDvestigation

13.

an official duties for

I

'. In the view ofseveral participants; this obligation should take into account the right of

the suspected persons to the presumption ofinnocence. Some delegations pointed out that in the"
case of high-level personnel such a provision would raise difficulties, bearing in mind the
procedures involved, which were sometimes dictated by the Constitution. A more flexibie
wording, placing an obligation on States to guarantee that investigation procedure~ would not be
influenced by the suspected persons, might be preferable. Several participants emphasized that
intemationallaw had already adopted the principle that persons who might ex~cise authority .
over the complainants, the witnesses and their fa:milies, and over the persOns carrying out the

investigation. should be suspended. There was also a need to ensure that the suspected persons
were not in'a position to embark on additional violations.
2. Education and training

14.

Many speakers emphasized the need to strengthen the draft Convention in this area It

should stipulate that the personnel concerned included police and prison staff as well as judges,
procurators and lawyers. The precise aims of training should be spelled out: specific mention
was made ofpreventing the involvement ofpersonnel in acts of forced disappearance, and
recognition by the personnel of the importance of preventing such acts, invest~gating and
~ently

(

solving cases of forced disappearance. Agents of the State should also be informed of

their duty to disob,ev:d oithe :~awful~essof

Qrers to carry out a forced disappearance.

Training in the specicteatures 0 mvestiganons mto forced disappearances sh~uld also be

B5

provided. Lastly, members of the public as a whole should be infonned oftheir rights, as
recognized in intemationallaw, but also in domestic law.

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E1CNA/2003/WG.22/CRP.6
page 4

15.

One delegation submitted the following proposal.
'States arties shall ensure that the training of public aw en orceme

B5

staff and

~rm;lOOl~mclud~ the necessary education concerning the provisions of this

. In
. order:
conventIon.
"(a)

B5

\

To prevent the involvement ofsuch staff and supervisors in forced

disappearances;
"(b)

To ensure that the importance ofprevention and of investigations into

forced disappearances is recognized;
"(c)

----_P_.. __'

-.. -

__.

To ensure that the urgent need to solve cases of this type is recognized_"

e Chairperson summed up the discussions as follows:

In advance of any judicial investigation. provision must be made for the initiation of
inquiries into the fate of the person alleged to have disappeared. The question of
identifying the independent authorities responsible for such inquiries should be

I

further studied;

I

!.

-

I

States should guarantee a simple. rapid and effective remedy before ajudicial
authority. Penal or other sanctions should be laid down for those who hinder access
to such remedies;

-

All steps should be taken by States to prohibit secret places of detention and
incommunicado detention. This implies the taking of an inventory of all detainees
and all places of detention. The question arises ofhow federal States will address this
requirement. It will also be necessary to ensure effective supervision ofplaces of
detention by the judicial authorities, as well as notification of lawyers and families
concerning steps taken with regard to detained persons and the places where they are
located;

-

The authorities responsible for holding persons in detention should be properly
trained. The proposal put forward by one delegation is in keeping with this objective.
Mention was made of the need to create awareness among the public concerning the
offence of forced disappearance.

UNCLASSIFIED
FP1159

UNCLASSIFIED
Peay, T Michael
Subject:

FW: FOR CLEARANCE/Disappearances talking points

GE\05.

RELEASED IN FULL
---Original Message'·'"
From:
Brancato, Gilda M (Main State)
Sent:
Thursday, June 23, 2005 12:42 AM
To:
Kovar, Jeffrey 0; Johnson, Thomas A; Camponovo, Christopher N (DRL}; Harris, Robert K; 8rooks, Waldo Wi Manning, Denise;
Peay, T Michael
Cc:
Barton, Paula Ji Danles, Joel Di Gale, Hanny; Witten, Samuel M; Sicade, Lynn M (DRL); lucas, William ti Brancato, Gilda M (Main
State)
Subject:
FOR CLEARANCE/Disappearances talking points

lEGAL-#122616-vl
-Talkers- fore...

-

.
.

•

Mission Geneva is meeting tne French chair of the negotiations on June 24 and requesled talking points.

The attached paper draws from earlier cleared points prepared for the most recent negotiating round in February 2005.
Please provide clearance by Thursday COB, as I will need to send to Geneva Thursday evening. I will provide copies of
the February 16, 2005 treaty text on Thursday morning.
Thank you all, Gilda

UNITEDSTATESDEPART~ENTOFSTATE

REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

1

UNCLASSIFIED
FP1160

r

•

UNCLASSIFIED
Pear, T Michael _
From:
Sent:

To:

.

__ ". __.

_.__

._.._.. _._.~.;§_~~A~~_J:?

B6

)~.~AI3:I._gEJo9.

A _.

Brancato, Gilda M
Friday, August 08, 2003 10:33 PM
Johnson Thomas A; Cam onova, Christopher N ([)RL); Brooks. Waldo W;

B6
Cc:
SUbject:

To those on the "TO"line: The attached draft instructions, which revise and expand instructions prepared for the first
session of the Working Group on a Forced Disappearances convention in January 2003. are for your comments and
clearance. You may recall that this is a UN exercise to draft a convention to prohibit and prevent forced disappearances.
The French Ambassador in Geneva chairs the WG, and Latin states are vocal in support of a broad convention.
Please provide clearance on the attached draft Instructions by Tuesday August 26, as the one-week UN session on the

[J
2BV501l.DOC

proposed convention is scheduled to start in Geneva on Monday September 1. Thank you. Gilda

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

1

UNCLASSIFIED
FP1161

.,

-

-

UNCLASSIFIED
Peay, T Michael_._..
From:
Sent:

" To:
\
~c:

Subject:

.....

..

. ._,.,_.

...

~LEASED IN PAR'I G~91__
B5

Brancato, Gilda M
Monday, December 16,20029:07 PM
Surena, Andre M; Manning, Denise; Johnson, Thomas A; Camponovo, Christopher N (DRl);
Danies, Joel D(Geneva)
Witten, Samuel M; Jacobson, linda; Dolan, JoAnn; Peay, T Michael(Geneva); Solomon,
Steven A(Geneva); Sicade, lynn M; legal-l-HRR-dl
#108020 v1 - Instructions; WG on forced disappearances

The attached is for your clearance, please. I will send to Justice and Defense as well. This draft may serve as a basis for
our L meeting tomorrow and for a meeting with Justice tentatively scheduled for Wednesday. May I hear from you by
Thursday COB please. Thank you.
As noted earlier, I will circulate shortly for clearance a draft commenting on specific provisions of the 1998 UNHCR subcommission draft disappearances convention.

28CKOI !.Oce

'-

,fhank you all. Gilda

(
\

~TEDSTATESDEPARTMENTOFSTATE

REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

1

UNCLASSIFIED
FP1162

UNCLASSIFIED
Gale, Hanny
From:

Sent:
To:
SUbject:

Kovar, Jeffrey 0
Friday, August 12,20059:04 PM
Gale, Hanny
One more, please

RELEASED IN FULL

·····Original Message·····
Brancato, Gilda M (Main State)
Thursday, June 23, 2005 7:00 PM
To:
Brooks, Waldo W; Kovar, Jeffrey 0; Johnson, Thomas A; Camponovo, ChrIstopher N (DRL); HQrrls, Robert K; Manning, Denise;
Peay, T Michael; Jacobson, Linda
'
ee:
Barton, Paula J; Danies, Joel D; Gale, Hanny; Witten, Samuel M; Sicade, Lynn M (DRL); Lucas, William E; Dalton, Robert E; Legal·
l-HRR·dl
Subject:
RE: Treaty/Forced Disappearances talking points & Annex

From:
Sent:

Mike. as requested, Attached are talkers and an Annex addressing outstanding core issues for the USG.
tomorrow, and please send us an email report.
All the best, Gilda

Best of luck

-·---Origlnal Message---··
Brooks, Waldo W
Sent:
Thursday, June 23, 2005 8:06 AM
To:
Brancato, Gilda M (Main State); Kovar, Jeffrey D; Johnson, Thomas A; Camponovo, Christopher N (DRL);HClrrls, Robert K;
Manning, Denise; Peay, T Michael
ee:
Barton, Paula J; Danies, Joel D; Gale, Hanny; Witten, Samuel M; Sicade, Lynn M (DRL); Lucas, William E
Subject:
RE: FOR CLEARANCE/Disappearances talking points

From:

Clear.
-···-Origlnal Message··--·
BranCato, Gilda M (Main State)
Sent:
Wednesday, June 22, 2005 6:40 PM
To:
Kovar, Jeffrey D; Johnson, Thomas A; (amponovo, Christopher N (DRL); Harris, Robert K; Brooks, Waldo W; Manning,
Denise; Peay, T Michael
ee:
Barton, Paula J; Danies, Joel D; Gale, Hanny; Witten, Samuel M; Sicade, Lynn M (DRL); Lucas, William E; Brancato, Gilda
M (Main State)
Subject:
FOR ClEARANCE/Disappearances talking points

From:

«File: LEGAL-#122616-v1-Talkers-_forced_dlsappearances_-_June_2005_.doc» Mission Geneva is meeting
the French chair of the negotiations on June 24 and requested talking points. The attached paper draws from
earlier cleared points prepared for the most recent negotiating round in February 2005. Please provide clearance
by Thursday COB, as I will need to send to Geneva Thursday evening. I will prOVide copies of the February 16,
2005 treaty text on Thursday morning.

~

LEGAL-#122616-vl
-Talkers-_tore...

Thank you all, Gilda

llmTED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: JOHN·S BLODGETT
DATE/CAS~ ID: 18 AUG 2009 200706444

uNCLASSIFIED
FP1163

UNCLASSIFIED

COMMISSION ON HUMAN RIGHTS

E/CNA/2004/WG.22/Mlsc.21

Working Group on a draft legally binding
normative Instrument for the protection of
all persons from enforced disappearance
Geneva, 12-23 January 2004.

16 January 2004

RELEASED IN PART
B5
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24 AUG 2009 200706444

-PROPOSAL OF

THE UNITED STATES
E/CN.4/2004/WG.22/Mi c.21

B5

UNCLASSIFIED
FP 1164

UNCLASSIFIED
E / ~ ,J.4/ 2.fXJ+jWG",

I'

United States Proposals on "Access to Information" (January

16~

JQ.I\U4

2004)

Article 7

Delete the following sentence: " In particular, the right to obtain accurate
and full information on the fate of disappeared persons is guaranteed in all
circumstances." [Unnecessary in light ofwhatfollows.]
/

Article 12 [as shortened]
1. (same)
2. (same)
3. (same)

New Consolidated Chapter on -"Access to Information"
Article 12 bis [New] ,
1. Each State Party, subject to Article12 ter(4)), shall provide to family
members, and to other persons with a legitimate interest, information

concerning the whereabouts and fate ofa disappeared person, including
infonnation resulting from an investigation into the disappearance.
2. At a minimum, such informationshall include.'
(a) The authority to whom the person has been referred;

(bJ The whereabouts ofthe person deprived ofliberty, including in
case 0/ transfer;
(c) The identity ofthe person responsiblefor the deprivation ofliberty and of
the person in whose hands the person deprived ofliberty has been,placed.
(Former Art. 16(2)7

3., Each State Party shall prepare and maintain one or several official
resisters ofpersons deprived of liberty. [Former Art. 16(3); however, the

r

sentence would b~ome unnecessary in view ofArt. 12 bis.]

UNCLASSIFjED
FP 1165

UNCLASSIFIED
2

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Article 12 ler (New]
1. In implementing their obligatio

under this [instrument], States Parties
shaJI respect the fundaJDentaI nee of family members, and other persons
with a legitimate interest, to ob . information promptly and regularly
regarding the whereabouts and the fate of a disappeared person.
2. States Parties shall adopt, if they have not yet done so, the necessary
domestic legal measures to ensure appropriate access to such information.
/

3. States Parties shall be guided by the principle that furnishing such
information shall in no circumstances be unreasonably denied.

4. Such access shall be subject only to privacy, law enforcement, national
security, or other similar considerations duly justified under law.

Artic1e17

[The necessity ofthis article would need to be r~valuated, in light of
provisions in the new "Access to Information" Chapter].
Article 19 [as revised}
Each State Party shall take the necessary meaSures to prevent or punish the
following conduct:

(a) Any unlawful delay or obstruction in providing the access to information
envisioned by Article 12 bis and Article 12 ter. [delete reference to Art. 17)
(b) same
(c) same

UNciASSIFIED
FP 1166

UNCLASSIFIED

. Article 12 fer [New][Ol/21/04]

1. In impleinenting their obligations under [this instrument], States Parties,
subject to their constitutional and legal requirements, shall adopt/take such
measures as may be necessary that will respect the fundamental need of
family members, and other persons with a legitimate interest, to obtain,
upon request, prompt and regular information regarding the whereabouts
and fate of a disappeared person.
2. States Parties shall be guided by the principle that furnishing such
information shall in no circumstances be unreasonably denied.

UNCLASSIFIED
FP 1167

UNCLASSIFIED

Article J2 ter [New][0 1/21/04]
1. In implementing their obligations under [this instrument], States Parties,
subject to their constitutional and legal requirements, shall adopt/take such
measures as may be necessary that will respect the fundamental need of
family members, and other persons with a legitimate interest, to obtain,
upon request, prompt and regular information regarding the whereabouts
and fate of a disappeared person.
2. States Parties shall be guided by the principle that furnishing such
infonnation shall ~n no circumstances be u~easonably denied.

•

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RELEASED IN FULL

'.

163102. txt
unclassified
[FBIS LOGO]
Document 10: Eup20021015000146
Entry Date: 10/15/2002
version Number: 01
Region: The Americas, Near East/south Asia
sub-Region: North America, Near East
country: canada, syria, United States
Topic: HUMAN ,RIGHTS, INTERNATIONAL POLITICAL, MIGRATION, TERRORISM. 911WEB,
URGENT
Source-Date: 10/15/2002
US Said TO Provide 'Incomplete Information' on syrian-canadian Detained in
us
EUp20021015000146 Toronto The Globe and Mail (Internet version-wWW) in
English 15 Oct 02 p A5

"

[Report by Estanislao Oziewicz from the print edition: "ottawa man feared
bein9 sent to syria, u.s. lawyer says; Arar[O] 'confused' during New York
meet1ng,said he had, refused to sign removal paper"]
[FBIS Transcri bed Text]
,An Ottawa engineer detained by u.s. authorities and accused of having links
to al-Qa'ida was terrified that he would be deported to his native Syria, a
u.s. lawyer says.
ottawa is demanding that washin9ton divulge the whereabouts of Maher
Arar[O] , a 32-year-old Canadian citlzen arrested during a stopover at New
York's Kennedy airport on sept. 26 as he was travelling to Montreal from
Tunisia.
Amal oummih, an Arabic-speaking immigration lawyer based in New York,
said yesterday she may have been the last contact the family had with Mr.
Arar[o] before he disappeared.
,
Ms. oummih spoke to Mr. Arar[O] , who was being held at Brooklyn's
Metropolitan Detention center, on oct. 5 at the request of his family.
"Basi ca 11 y, everythi ng happened so fast that before we coul d take th'e
next step we couldn't find him and then we heard he was deported."
Ms. oummih said Mr. Arar[O] , a telecommunications engineer, told her
that U.S. authorities had asked him to sign a document permitting his
deportation to syria but,that he had refused. "He was very, very concerned
and worried that he was going to be deported to syria."
she reassured him that her understanding of U.S. law was that i f he was
going to be deported he could choose to go to canada. she also told him
that if he feared being deported to Syria he would get a chance to argue
his case.
But MS. oummih said that opportunity never arose, and Mr. Arar[O] was
later interrogated by U.S. officials with no lawyer present. She said she
and another New York lawyer involved in the case had no real chance to be
present because they were notified by voice-mail message on a sunday that
page 1
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 11 MAR 2009 200706444

UNCLASSIFIED
INR 0001

UNCLASSIFIED
163102.txt
the interview was being held that evening.
she said a u.s. Immigration and Naturalization Service document she
examined indicated that Mr. Arar(O] was being detained "for allegedly being
a member of a terrorist organization, to wit al-Qa'ida."
Mr. Arar [0] "was in very, very bad shape, from my observati ons," Ms.
oummih said.
"He was very emotional, very scared. He was not doing well at all. I
was very concerned about him . . . . He didn't seem to know what was going
on. He was very disoriented. He seemed very confused. He was very, very
emotional. It wouldn't be an exa~geration to say that about half the time I
just had to let him sob and cry.
Riad saloojee of the council on American-Islamic Relations canada has
said Mr. Arar's[O] treatment is a breach of canadian sovereignty.
Mr. saloojee said Mr. Arar(O], father of two young canadian-born
children, could face severe punishment in syria because he avoided
compulsory military service before leaving the country for canada as a
teenager.
Both Mr. Arar[O] and his wife, Monia, got their postsecondary education
in canada.
Reynald Doiron, a spokesman for the Department of Foreign Affairs, said
an INS official provided incomplete information when he contacted the
canadian government about the case on Saturday.
Mr. Doiron said as far as ottawa knows Mr. Arar[O] was not charged with
any offence.
.
"We need to find out, since he was transitting in the u.S. on a
canadian passport, why it is he was removed to an undisclosed country from
the United states."
.
[Description of source: Toronto The Globe and Mail (Internet version-www)
in English -- centrist daily; leading national newspaper of record]
THIS REPORT MAY CONTAIN COPYRIGHTED MATERIAL. COPYING AND DISSEMINATION IS
PROHIBITED WITHOUT PERMISSION OF THE COPYRIGHT OWNERS.
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Page 2

UNCLASSIFIED
INR 0002

DECONTROLLEDIUNCLASSIFIED
RELEASED IN FULL

INFORMATION MEMORANDUM
SIES
SENSITIVE BUT UNCLASSIFIED
TO:

The Secretary

FROM:

L - William H. Taft, IV

SUBJECT: Follow-up from Confirmation Hearing - Detainee Transfers
During your confirmation hearing on January 19, Senator Dodd
probed U.S. practices in transferring detainees from U.S. control to third
country control, particularly for purposes of interrogation. He cited recent
press accounts alleging the transfer of prisoners, primarily by the CIA, to
. countries where it is believed they were later tortured during interrogation.
An article in the New Yorker this week entitled "Outsourcing Torture"
details similar allegations.
During your hearing, Senator Dodd also asked your views on a
legislative proposal he made last year to require the Secretary of Defense to
maintain records of ~ll transfers in order to prevent these renditions from
occurring or, at least, detenmne how the detainees are being treated after
transfer. During the hearing, you demurred on the record-keeping proposal
"for now" and indicated ~a~ you would he prepared to discuss these issues
later in closed session.
. Attached are packground papers on detainee transfers, including the
Dodd Amendment and a letter on the subject dated June 25, 2003 from DoD
General Counsel Haynes to Senator Leahy.
Tab A- Background on Dodd Amendment Concerning Detainee Transfers
Tab B - Background on Detainee Transfers, including Letter from DOD

General Counsel Wilham J. Haynes II dated June 25, 20.03

UNITED STATES DEPARTMENT OF STATE

REVIEW AUTHORITY: ARCHIE M BOLs'@tECONTROLLEDIUNCLASSIFIED
DATE/CASE ID: 04 SEP 2008 200706444

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Doc. No. 121090
L Control No: 2005-048
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Secret CIA Detentfon
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The Arst Six Months
The Remaining 19 Months
Secret PrIson Stllff
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Discovering the Program
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TwoYears In Secret CIA DetentIon

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States-some ending up in military custody, others in CIA custody-and it also
allowed tha United States and other countries to in larrogate many of them on
Pakistani soil. As the US State Department's annual human rights report for <1004
describes, security forces In PakIstan "held prisoners Incommunicado and refused to
provide information on their whereabouts. particularly in terrorism and national
security cases." What the report does not say is that the Pakistan} authorities
earned out these abuses with the full knowledge and participation ofAmerican
Intelligence agents. Indeed. the degree of US control may have been so great, in
some cases, that it constituted a form of proxy detention.

Summary
When Marwan labour opened Ills eyes. after II blindfold. a mask, lind other coverings
were taken off hIm, he saw soldIers and, on the wan behind them, framed photographs
of lOng Hussein and KIng Abdullah of lordan. He was tired and disoriented fivm his rour·
hour plane RIght and sUbsequent tal trip, but wilen a guard confirmed that lie was being
lIeld In lordan. he felt Indescribable relief. In hIs more than two years ofsecret
detention, nearly aU of It In US custody. this was the first time tilat someone had told
hlmwherenewas. The dllte was July 31, 2006.

The possible use Qf proxy detentIon facilities is of especial concern now. In ea rly
September 2006,14 detainees were transferred from secret CIA prisons to military
custody at Guantanamo Bay. In a televised speech on September 6, President Bush
annollnced that with those 14 transfers. "there are now no terrorists in the CIA
program." But he said nothing about what had happened to a number of other
prisoners who. up until that point. were believed to have been In the unacknowledged
custody of the CIA.

A fewwee1cs later, In anotherfir.st. the Jordanians allowed several of labour's family
members to visit him. AMy father cried the whole Ume,~ labourlster remembered.

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MalWan labour was al1'E!sted by Pakistan! authOflUes In lahom. Pakistan, on ·May 9.
·2004- Hems detlllned there briefly. then moved to the capital, Islamabad, where he
was held for mare than a month In II sec~detentionfadlilyoperated by both
PakistanIs and Americans. lind flnallyflown to a Central Intelligence Agency (CIA)
prison In what he believes was AfghanIstan. During hIs ordeal, he later told Human
Rights Watch. hewas tortured. beaten. forced to stay awake ror days. and kept naked
and chained to a WlIIl for more than a month•.Uke an unknuwn number cfArab men
arrested in Pakistan sInce 2001, he was Adlsappeared w lntc qs custody: held In
unacknowledged detention outSide of the protection cfthe IllW. without court
supervisIon. and without IInYcontlltt wIth hls family, legal counsel, orthe
. internatIonal Committee afthe Red ClOSS.

One "oncem is that the US might have transferred some of the remalnln g prisoners
to foreign prisons where for pracHc'l1 purposes they remain under CIA control.
Another worrying posslbillty IS that prisoners were transferred to places where they
face 8 serious risk oftorture: Indeed, some of the missing prisoners are from Algeria.
Egypt. libya. and Syria.

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In a letter to President Bush published in conjunction with this report, Human Rights
Watch has provided a list oh6 people who were believed to have been held at one
lime in secret CIA prisons, and whose whereabouts are currently unknown. labour
saw or spoke te> a number ofthose people while he was held. The letter also
Includes a list of22 people who were possibly held in such prisons. and whose
whereabouts are similarly unknown. A copy of th e letterl> Included as an appendix
to this report.

The secrat prison program under whIch Jabourwas held was established In the wake
of~hll September 11, 20D1 tenerlst attacks. when US PresIdent George W. Bush
signed a ciasslffed directive authorlzln·g the CIA to hold and Interrogate suspected
temnlsts. Because the entire plOg;am was run outside of US territory. It required the
suppo:rt and.assistance of other governments. both In handing overdetainees and In
allowing the prisons to operate.

Human Rights Watch !las called upon the Bush administration to provide a Full

Pakistan's help was crucial to the program, more crucial than that of any other
country. The Pakistani authorltles dellYemd hundreds of prisoneT$ to the United

a~ounting of every person that the CIA has held since <1001, including their names,
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me dates that they lett US custody,and t~lr current l<xall

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the S vemmentshould either transfer them
In proxy deten on In a thIrd coun
to t e United States for prosecutloo In US co"rt s orordert he1 qeIAa1i/!,

TO leave these men In hidden limbo violates fundamental human rlghts norms. It Is
also extraordinarily cruel to thelrfamUles, The'wife ota man who has not been seen
sInce he was belleved to have been taken Into OA custody told Human Rights Watch
that she has had to Ue to her four children about her husband's absence. She
explaIned that she could not bear telling them that she did not know whefe hewas:
"{W]hat I'm hoping Is If they find out thelrfatllerhas been detained, thatl'll at least
be able to teU tIlern What coulltly he's beIng held In, a~d 1n what conditions•••
The fate ofthe missIng detaInees is one of the maIn unanswered questions about
the CIA's secret prison program, but It is not the only one. Much (5 stili unknown •

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about the scope oHhe program, the p"c~e locations oftne detention facilities. tile
treatment of detainees, aryd the cooperation and compllcityofothergoyemments.
Although confidential sou~es, Includlll8 OA personnel. have descrlbed some
aspects oHhe program to Journalists, and a smllil number offoJTl1llr detalnees have
recounted their eltperlences, many detalis of the program remain hidden.
What follows Is the most comprehensive account to date ofUfe In a s&rel CIA prison.
Human Rights Watch Interviewed Marwan labour over several days In Oecember
zo06.lus than" month after he regaIned hIs freedom. He spoke dearly, precisely
and In $Teet detail about his ~erlences. elthough It w~ evldentthat he found
some memories upsetting. His testimony 1$ extremely valuable both In describIng
his own 6perience of secret detent10n lind In providIng Information about others
who were held w1t1l hIm.
labourWlls arrested In lahore. he believes by the Paktstanlintelligence services, and
the worst physical abuses ha endured took place while he was In tIlelr custody. He
alleges that they beat him severely. bumt hIm with a red hot iron. and tred a tight
rubber ~rlng around his penrs, causing enormous pain. On t"lsthlrd day In
Pakistani custody, three people he believes were Americans questloned him; the

following day he was t",nsferTed to a secret fa(ilily in Islamabad. This (aerllty had
both US and Pakistani personnel, but the Americans seemed 10 be in charge.
Both In the Lahore faclllly and In Islamabad, jabour endured many days offorted
sleeplessness and forced standing. with little respite. Twice he collapsed. falling
unconsdous.
After a month In Islamabad he was flown to a secret prison. which he believes was in
Afghanistan. where all of the personnel (except possibly the interpreters) were American.
There, he was held ~ompletely naked fora monlh ano a half, filmed naked. and
Interrogated naked. He was chained tightly to the wall of Ills small cell so he could nol
stand up, placed in painful stress positions so that he had difficulty breathing, and
warned that If he did not cooperate he would be put in a suffocating "dog box.n
As the monthS went by, some aspeet5 of labour's tl'eatment improved: his clothes
. were slowly returned; the physical mistreatment ended; he was placed in a larger
cell; he got better food. Other aspects, however. changed slowly or not at all. He
spent nearly all of his time alone In a windowless cell, He went a year and a half
without a glimpse of sunlight. He wore leg irons for a year and a half, Worst of all.
he spent more than two years with almost no contact with any human being besides
~Is captors. Although he worried incessantly about his wife and three young
daughters, he was not even allowed to send them a letter to reaSS\lre them that he
was alive.
labour acknowledges that In 1998 he traIned In a militant camp In Afghanistan in Ihe
hope of fighting Chechnya, amI in 2003 he helped Arab militants and others who
had ftedAfghan1stan for Pakistan. But whether he violated the law should have
been a matter for the courts; it was not a justification for abuse.

In

International human rights law prohibits enforced disappearance: basically. the
holding of persons In unacknowledged. incommunicado detention. Such persons,
who remain "disappeared- until their tate or whereabouts become known. are also
more likely to be subjected to torture and other cruel. inhuman or degrading treatment.

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has long condemned thesf! abusive pl1lctlces In Its polky

statements and annual human I1ghts reports; Its own use of them severely
uli(lermlnes its moral authority on human .!!!,hts. Even In Wholly practical terms, Its
reitance'on secret detentlon and abusive IntelTOgation Is wronJ. The Use ortbese
techniques taInts any testImony obtained from the persons held, makfnJ It difficult
to prosecute the perpetl1ltors ofterrorist acts In fair proceedings, and to provide the
public accounting ofthese crimes Ihal the vlethns of temlrls~ deserve.

The Case of Marwan Jabour
Marnan Ibrahim Ali al·labour Is a ;lo-year·old Palestinian who was born in Amma.n,
lordan, and grew up In Saudi Arabia. In 1994, he moved to Pakistan to continue his
studies, and in 1999 he got married. He and his Wife have three young daughters,

Detention In Lahore
Key Recommendations
The beatings were dlfficull, bUI they weren't the worst part •... [The
worstJwasthe fear that I would never see my family.

The US govemment should:

-Marwan labour, elescrlbing how he felt when he was laken into detention
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Repudiate the use of secret detention and coercive Interrosatlon as
counteTterrollsm tactics and permanenlly discontinue the CIA's detention and
Interrogation progtam;
Disclose the Identities, fate and whereabouts of all detainees previously held
at faclllttes opel1lled or controlled by the CrA sInce 2001.

Other gOVemments should:

'/~eruse 10 assist orc~operale In llnywaywlth.CIAcletentlon.lnterrogation and
l/rendltiOn operations, and dlsdo" eny Infonnallon that they may have about
such operations.

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labourwas arrl1Sted after haVing dinner In lahore, Pakistan, at the hom e of a friend,
a professor at a university In lahore, on May 9, 2.004. Al about 9 p.m., when he was
I'ulling his car out of his friend's garage, a man on Ihestreel asked him about his
friend. As labour responded. he was suddenly.surrounded
a large group of
Pakistani men In clvilian clothing. The men grabbed him and cuffed his hands. They
put him in a car and tried 10 put a sack over his head. but he fought back and they
left Ihe sack off.

bY

They also arrested Ihe friend whose house he was vlsitin g, and another friend who
was there. All threi! men were taken to whal labour believes to be a Lahore station of
PakIstan's Inler Services Intelligence 050. the country's powerful military intelligence
agency; the station was close to the Panorama·Centre.·
)abour said that as soon 85 the men got him Inside the station. they started beating
him badly. "There were seven or eight officers In the room with me," labour told
Human Rights Watch. "If I said I didn't know anything, they beat me: they slapped
me, kIcked me. and hit me with a stick. They Insulted and threatened me. They kept
me awake all nIght long.·

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labour said that t~e men also used an electric prod On him. continually questioning
him about the whereabouts of suspected terrorists.

with them, ext:ept sometimes they would briefly undo It, It was terribly
painful.

At about 6 a.m•• he said. they sent him to a cel~ leaving him there wil1l shackles on
his legs. There were three small celfs In a row together. labour was alone In his cell.
and his two friends wer<: In the otltercells. "They had been beaten too, but not as
badly u I was,"labour said. "I was bNlsed from the beallng."

labour said that because he was kept from urinating for nearly rour days, except for
few brief moments ofresplte.lte now has a problem with his kidneys. He has 10
urinate frequently. and sometrmes there Is blood in his urine.

From the questions that labour Was asked,lte knew that hTs contacts with Arab
mllltants lIad aroused officlallntemst. labour told Human RlglIts Watch tllat he had
trained In a mlUtant camp In Afghanistan lor three months In 1998. had returned to
Afghanistan lor II couple ofweeks efterthe American bombing campaign stalled. and
In 2003 had aSslsted Arobs and others who had fled Afghanistan for Pakistan.
Because he had Uved in Pakistan since 1994 end had studied at a university there, he
spoke URlu fluently and had local contacts. His knowledge ofthe local environment
meant thet he was able to lImlnge for peaple to get medical care and stay In local
homes. labour claims that he assisted "uneffilfated mu/ahldeen" ~hose who did not
belong to al Qaeda orother armed groups_nd that he lOllS never a member of a
. terrorist group or In anyway Involved Tn terrorist actlvltles.'

Early In the morning on his third day of detention In lahore, labour said, three people
who he believes were Americans came to interrogate him: two WOmen and a man.
He was blindfolded the whole time they Interrogated him, but he said that their
American accents were unmistakable. (!hey Interrogated him In English.) "They told
me, 'MaMan, you'r~at a cros~roads: you could spend Ihe rest ofyour life In prIson.
oryou could cooperate with us agalnstlhe te'Tl?rists. You could be a rich man.'"
labour said that nobody physically abused him while the (\mencans were presenl,
although sometrmes he was made to kneel on the floor while he was being
questioned. When 'the Americans once asked him about the bruises on his face,
caused from his beating by the Paklstanl pollce, he told them sarcastically, "Oh, we
spent a very nice night together, your friends and l."

.

.

When the Interrogators retumed to his cell an hour ortwo later. they wanted the
details oflabour's actlvltles,lncludlng the names ofmliitants he had met, and the
addresses wher<: those who had fled Afghanistan were staying. They had already
found Ilts cell phone and Ii diary with phone numhers. They took !abourbi!(k to the
Interrogatlon room, where an lntenrogatorwas waitlng for him. They told hlm to stall
making phone calls for tltem. The pollee began shouting and beating him, They
threatened to alTest his wlfe. jabour sald: "They told me: 'We'll keep her on her
'knees In front ofyou"· He described the scene:

DUringtlle Interrogation. the two women did most of the talking. On"was friendly,
and made some suggestive comments to him; the other was very angry and swore a
lot. The angry woman told him that there was a huge American man waiting for him
In prison.
The Amencans stayed at the police station until about midnight. Afterthe Americans
had left, the Pakistani police removed his c10lhes and showed him a red hot metal rod.

We were In a specially made 100m wlth Iron rings on the wal~ and they
chained my hands to the celUng. They also tied a rubber string on my
penis that didn't allow me to pee. They left It on the whole time 1was

One of them asked me; "Where do you Vlant to be hit with il?" I begged him not 10.
He bumt my left ann,lust above the elbow, and my left leg. I got no medIcal care for
tile bums, which bU~~led up. They took a month orso to heal, But this seemed
minor compared to all the other things in my life at the time.'

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labour said that on the morning of the fourth day, the Pakistanis transferred him by
carto another fllclUty. He had been kept awake nearly the whole time he was
detained In lllhore. He estimated that he was allowed a total of about three to four
hours' sleep dUring the nearty four days he was held.'

The (orced sleeplessness that labour endured In lahore continued in Islamabad.
labour told Human Rights Watch that during his first seven days in Islamabad his
captors dId not allow him to sleep. except for the occasional hour.long doze. "It was
a continuous investigation.· he said.

Islamabad: Proxy Detention

"The Americans were almost always around.· he told Human Rights Watch. "I wasn't
wearing a blindfold after Iarrived there. so Icould see them. Isaw three American
women and a man. plUs about five or six Pakistanis." Speaking of the Americans. he
$<lId: "I think It was the sam<t man who questioned me In LIlhore, and at least one
different woman." labour said that the Americans were dressed In regular Weslem
dothes, and one ofthe women said that her name was Mary. They did not say what
government agency they Were from.

Ithink It had oncce been a prfvate home. It was a place ofsecret
detention •••• It seemed to me that this place was controlled by
Americans. They were In charge.
-Marwan labour, recalling his detentlon In Islamabad.

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labour described the detentlon fadllty he was transferred to as a "vllla-: a large
private ccompound that had been renovated to hold prisoners.' He was blindfolded
when he arrived so he dId not see It from the outside. but he heard the Paklstanls
who were In the car with him say that they were goIng to fslamabad!The drive (rom
lllhore took three-and'll-halfto four hours.'

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out my fingernails. Other times they would be friendly, and promise to release me If I
talked." He was forced to stand for long pellods.
The Americans did not beat labour. but they made him stay awake. '"They would say:
'If you cooperate. we'l{ let you sleep: And: 'ffyou work with us, we'll make you really
rich: They never threatened to take me to Guantanamo. but they did saythatl'd be
taken away somewhere and would never see my children again. Iwas thinking that
my life was finished."
"I was t~lnklng about my oldest daughter the whole time,· he said••, thought that
j'd never see her again. Iwas afraid that j'd be sent to Guantanamo.·

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labour said that the Americcans appeared to be in charge of the facility. They would
question him dUllngthe day. sometimes shOWing hIm photos of suspected militants,
and after midnight the Pakistanis would take over. At first labour was held alone in a
cell that was like a room, and was attached to the wall by a chain about two meters long.

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labour told Human Rights Walch that all of the Americans he saw at the facility were
relatively young: in their late twenties or early thirties. He said that the man who
questioned hIm was about age 28-30. with thInning hair, and the woman who called

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herself Mary was tall, with medium length. light colored hair. Another woman was
alWays angry and swore a lot. Oabour believes thIs Isthe same woman who swore at
him In lahore.) Once. In Arabic, she told labour "Fuck Allah In the ass."
Jabour collapsed twice during this first week In 'Islamabad: he believes that he had
two heart attacks. The first time was on his fourth day ofdetentlon: the second time
was aUhe end of seven days. "I felt unconscIous both limes, with my heart
pounding out of my chest." he said. The doctor. a PakIstani. checked his heart and
gave him something cailed "glint."
After laboUr's first collapse. they moved Itlm to a cell With anotlter prisoner, an
Algerian named Adnan, who took care ofhlrn. Oabour knew him as Adnan "al·
lazeari," or Adnan tha AlgerianJ labour WaS In such bad shape that hetould not
walk or feed himself. He WaS allowed to sleep for about four hours.

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After his second collapse. three dayslat",. he was allowed an enUre.day's rest.
MAfterthe second collapse.' was hysterical," he said.
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Anumber of other prlsoners were held In the cell block wllh him, which he described
as II new addltlon to the.maln house, The cell block was stiffingly hot Bnd tlte air
was stale. There were two faclns rows ofthrae cells, each ofwh1ch had a barred door
factngtMcorridor. In front ofthe barred doors were wooden doors, but thevwere
elmost always left open. When the prisoners were walked down the comdor to use
the toUet. thev could see each other.
labour said that one cell held 1I16-yellr-old boy named Khalld. Khalld. who was
Egyptian. saId that he had been arrested six months previously during mlUtaJY
operatIons In Wazlristan,ln northwest Pakistan bordering Afghanistan. Hewas
apparently badly Injured during hIs arrest. and labourcould hear him cJYlng and
moaning In peln at nleht, -He was suffering badly," )abour recalled, Another 16-year.
old who was Mid In the facUltywll$lln Iraqi named The'er, wIlo said that he Ilad
been arrested In mld·2oOJ. Tha'ertold )abour that he had an Australian travel
document, and that the Australians had vIsited him the previous year, Interrogating

him and making a video of the interrogation. Tha'er also said that Abu Zubaydah and
members ofhls group had been held in this same facllily.'
The facility also held a Yemeni detalne.e who had been arrested In lale 2003: a
Uby"n named Ayoub who had been arrested in early 2004: an Afghan known as
Mohammed al AfghanI. who was bom In Saudi Arabia, and a Palestinian who had
been arrested in early 2004. The latter l\~0 prisoners had been transferred from
Peshawar prison to Islamabad the same day that Jabour had arrived. There were
also three Pakistanis who were accused of involvem~nt in the attempted kidnapping
of an lSI general; tiley said lhatthey had been ~el<1 for a year without being charged.
Afounh Pakistani was also held there: he was released a few days after labour
arrived. ,abour said that this fourth man had been badly tortured: "you can't
Imagine how much they weie hurting him."
labour said thaI the Pakistani prisoners told him that a Pakistani named Majid Khan
had preViously been held there with them."
Jabourwas held In the Isiamabad'facility for more than a month. He was never
brought before a judge. charged with any offense. or allowed to see a lawyer. While
he was there, anllther prisoner. the Yemeni, was moved from the facl11ly. supposedly
For Yemen. The day befr.>re labour was transferred, three other pzlsooers-Iha two 16year.old boys, and the Algerian man-were taken away.

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Secret CIA Detention
II was a grave.
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)lIbourwaslr.lnsfetnld out ofthe Islamabad facliltyon the evening ofJune 16.2004.
The Paklstan'ls brought Iabourand three other prisoners (the Palestinian, the Afghan,
and the Ubyan) to the airport. The prisoner.; were blindfolded: their hands were
cuffed. and their legs shaclded. labour said tha! the dl1veto the alrpilrttook less
than 20 minutes.

labour said he thinks that everyone at the prison was A",erican-tqe guards,
Interrogators. prison director.;. and medical personnel-el<cept possibly the Arabicspeaking translators. Not only did the prison staff say they were Am eric.an-informing
lab<lur that he was In U.S. custody-they spoke American·accented English.

Before he was put on the plane, Jabourwas led til the bathroom, where the Americans
to<lk off hIs bUnd/old. "I saw Americans In front of me. talldng In sIgn language. A
doctor was there, and he took my blood pressure and gave me an InJection. I knew It
was the end of my Ufe." Then the Americans put a sack over hIs nead and changed his
handcuffs. The Inlectton made him a bit woozy, but he did not pass out.

After the plane landed. the transferteam put labour and another pris<lner in the back
ofa jeep. handling them roughly. The jeep then drove down an unpaved road to the
prison.

labour said everyone entered the plane through the back. using what seamed like
the cloor ofa mlllt1lry plane. The plane seemed fairly small. like 'it could hold
perhaps 20 to 30 people. The Ilrlsoners were on one side. with a seat between them.
Thelrhands were cuffed behind theIr backs. and their legs were cuffed and shackLed
to the floor. There were four pl1soners anclabou! a dozen other people on the plane:

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the earthquake In Pakistan reliefsupplles were flown "from here" to Pakistan. 'J
Fourth, the weather: It was extremely cold in the winter (c<>lder lhan In most parts of
Pakistan); one wall of his cell would be freezing to the touch. Fifth. the langualtes:
the first director ofthe prison spoke fluent Farsi (Persian). suggesting that the prison
was in a region where such language skills Were usefut...

labour believes that the secret prison facility he WaS brought to was tocated in .
Afghanistan. He enumerated sevelal reasons fortllls belief. first, the time spent
flying; the fllcht lasted a maxlmum of two hours." Second, the food seIYed at the
prison: dUring the Bd al·Atf holiday, .. the prisoner.; were glven typlcatAfghan food,
and near the end of his stay they were fed typIcal Afghan bread with regular meals.
Third. fllc.ts gleaned from his ",Pto~;
omcer at the prison once let sUp that after

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11Ie First Six Months

When the group reaclted the prison, two guards brought labou r inside. After they pu.t
him In a cell, by himself, they cut off all his clothes, leaving him naked. They
released one of his hands from the handcuffs, and cuffed the other hand to a rlng in
the cell wall. It wasn't possIble for him to stand because the ring was near the floor,
and he W8sllttached to it via a short chain.

The cell had two video cameras near the ceiling, too high for a standIng person to
reach. There were also speakers and a listening devIce built into the walt

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ofa single mattress, but it did n'ot have a mattress. The only objects Inside the eel!
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this cell, as well as other celts that jabour saw later, had double steel doors that
were very close to each other. (1n othelwerd., to exit the cellI! was necessary to go
thlllugh one door and then the next.) The door that opened Into the cetl had a small '
glass window (about 40 em by'30 em) and a food slot below. Except forthedooT, the
cell had no windows, but the lights were left on all the time, IncludIng at night.

behind the Interrogotor and act intimidating. labour was also frightened by an object
that the Interrogatorsulled the "dog box.· itwas a wooden box. about 1 meter by 1
meter in size. and the Americans told him that they put people inside It "They said
that KSM IKhalid Sheikh Mohemmed] had spent some time in the dog box and then
he talked. They kept threatening me: 'We could do this to you,'""

labour said that he thought the structure ofthe bulldlngwas old, but the cells Were
new and modem. Everything was metal and seemed very new.

labour said that he was slapped a few times at the beginning of his stay. but was not
beaten while held in the secret facility. Instead. when the Interrogators felt he was
not cooperatin.g, they would chain him up in elttremely uncomfortableposltions,
which would become paln.ful over time." His hands would be attached to his ankles.
and to the floor. and he would be left like that for a half hour to an hour. "At times It
wa~ difficult to breathe." he explained. In all, he estimates that he was put in these
stress positlons a total of 15 to ~o times.

The gIlards,let jabour sleep the filSt night (or let him try to sleep) and returned early in
the momlng. No one saki a womto him. but they shaved his head. and also shaved
off his beard and moustache. Then, without gIVIng him anydothes to wear, they took
him to an Interrogation room. In retrospect.labourllnds it hard to believe that he was
panlded around naked In front of a aroup of men and women, but at the time he was
so disoriented and upsetthat his lack of clothing seemed relatlvely minor.
The Interrogation room was a re!atlvely bIg room and It held about ten people,
inchJdlng guams and people who appeared to be doctors. Some members of the
aroup were woinen. They put him II chair. shackling his hands and legs to the chair.
Adoctor Came and anotherperson made a video recording oflabour's body.
Abearded man, whom labour had seen at the aIrport. in Islamabad, began to talk In
Amerlean·accented English. He said he was the "emir" (director) ofthe facility. He
said labour had only One option: to cooperate. He promised that Ifjabour cooperated.
he would be treated well.
Ouring,thlslnt<ll7Qgatlon llnd countless future Interrogatlons. hJs questioners asked
about jabour's activities in Paldstan, the people he hlld met, and his knowtedge of
terrorist groups. He WIlS shown many hundreds of photos. some of people who were
obvIously In detentlon (they were wearing prison Jumpsuits and shOWIng a plaque
with numbers).

jabour silid that dUring the first six months he was held at the secret prison they
would sometfmes play rock music at ear·blasting levels. which could last an hour. a
day, a fe~days, or even a week. ('It was loud. awful music," he said, "like the
soundtrack from a horror movie."
Besides the musJc, there was also a constant, low·level. white nolse: labour said
that It sounded like a generator. labour thin ks that one of the main reasons for the
noise was to prevent·prlsoners from communlcatlngwlth each other.

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Two weeks after jabour amved at the prison, he was provided with a Koran. After
three·and·a·h~lf months. he was given a prayer mat.
/aboursaid thatthefoodwasawful. It was almost all canned food (often tuna or
sardines): uncooked. very bland and bad·smeliing. "It was like dog food.· he

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remembered. During hIs first several months at ttle prison. his werght dropped
considerably. Whereas he had prevIously weighed 93 kilograms. his weight fell to 58
kilograms. (lheywelghed him every week.) "I fel! weak. dizzy. unbalanced all the
lJme, Uke I was on 8 ship."

On December 18, 2004, labour was moved to a large cell in a separate building.
When the guaros moved him to that building, they took him outside; he estlm~tes
that the second building was 70 meters from the first one. His new cetl numberwas
Bt." Uke hls first cell, it had no wi~dows and no o_tumllight.

labour recelved hIs dothes back pIece by piece over time. RlSt, after a month and a
hattat the prison, he was gIVen a paIr of pants. Then, after about three-and·a·half
months, lie WllS given 11 tee-shIrt. Finally, after about eight months, he was given a
pair of shoes.

While he stayed In the second building, he was allowed to shower Gnce a week, on
Saturdays.

Jatlourtold Human Rights Watch that his tegs were left shackled to each other for
one and a half years. During the time his legs were shackled, he could only take
small steps; the chain ronnlngfrom o~·e of his ankles to the other Was about 7S
centimeters long. Whenever"e was taken out of tile cen and brought to another
room for Interrugatlon, he was blindfolded.

The Remaining 19 Months

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labours treatment lmplllvedconside12bly afterthe Inltlal sIx-month perIod of
detentron, and continued Improving In stages after that. The flrst major change was
II tnlnsferto a much largercell;

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To bring lilbourto the new cell. the guards blindfolded him and walkell hIm around a
long, complicated route, In and out ofdifferent rooms, confusing his sense of
dir~ctIon. When they reached the cell and removed hIs blindfold, labour found
himself In a room tltat was about S meters by 7 meters In size. with a mattress, a
pillow, .. sink, some books of KoranIc InterpretatlGn, <IJ1d some straWberries. The big
cell was also quletenh..n his previous, small cel~ and the lights were turned oltfrom
11 p.m, to 4 a.m.

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labour was kept In the new (ell fOr three days, then he was sent back briefly to hIs
pnlvlaus cell, "They told me I could take one thing with me.· jabourreclllled. "I
wanted both the mllttressand a book. but I chose the book,"

NGt long after he was moved Into the second bUilding he was given a watch, a
calendar and a prayer schedule. He remembers that ln summer the dawn prayers
would be held as early as 3'25 a.m., whereas in winter the dawn prayers would be as
late as 5:15 or 5:25 a.m.; times that correspond to prayer times in Afghanistan."
€xcept forinterrogatrons, solo exercise, and hls weekly shower, labour spent all his
time cQnfined within the four walls Gfllis cen. With nothing else to occupy his mind,
).abour poured his energy into decorating his cell. After a year had gone by, the
Amerlcans gave hIm a map of lhe world. and later they gave him pictures of fish and
animals. "' had asked them for a plant. Which they didn't give me. 50 I drew a big
tree. with leaves colored on it,' he remembered. "I cut it out and taped It up on the
wall,' He also made grass out of s.trlps of paper. "I drew flOWers. and' stood on my
cllalr and stuck them to the ceiling." Sometimes the Americans would lake photos
ofhlscell.
Ayear into his detention, the Amerlcans started a((Gwfng labourto walth a movie
once a week, The facility had a list of 200'250 films. Including blg.budget Hollywood
flIms. documentarles, cartoons, sports, horror movies. and wrestling.
After a year and a hair, an officer taught labour how to play chess. la bour drew a
chess board and made chess pieces out of paper. He also played checkers and
cards with some of the women interrogators. About four months before he left. he
was given a computer chess set, and a small video game.

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labour spent much of his time reading. The prison had a bJg library wltll hundreds of
books and finally, by the time he left, more tllan a thousand books in a varletI' of
languages. The majOrity were In Arabic, but there were also books In languages such
as Urdu, Perslan, Indonesian and English.
One of the most momentous'occasfons for Jabourwas when he was allowed to see
sunUght. Hehad spent ayear and a half In captMtywlthout even a glimpse of
natural Ught. One ~ytheAmericans opened up a skylight In hls bulldlng. "They
brought me a chair and let me sit undur the skylIght," he remembered. "( was so
happy. I laked with them, pretendlng to call outside. 'Helpl.Someone help mei let
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The second bulldlnl he was held In had an elIercise area, about 5 by 6 meters in size.
In which labour was allowed to kick II soccer ball by himself. Nearthe very end of
labour's caplivlty, hewn allowed to Use a la'1le 8vmnastiCS room: about 8 by i5
meters In size. The ceiling ofthe room was quite high up. and for a short while one
of the prison subdlrectors uncovered windows on the celling, through which labour
could see sunlight and the
labour expressedWllml feellngs forthe person who
lnstltuted these Improvements, describing him as "s very good man."

sky.

The food also Improveel tOWllrd the end of his more than two·year confinement. He
started receiving Afghan bread wll!1 his meals, and toward the very end his meal
would llnive heated. He
also very occasionally given Western food like plua
and hambu'1lers, as well as cookies and candy."

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Jabo~was

never permitted to contact his family. the hope for which never left him.
"I told the kind 'emir' [a prison subdlr'ector! that I was worried about my fam ilV:
JabourrecaUed. "He said. 'There's some things we can do, but some things we can't
do: He saId he couldn't allow me to contllct them.":

Secret Prison Staff
labour estimates that in the more than two years he was held at the prison, he saw a
total of about 70 staff, consisting of some 25 guards and 45 <Ivltian staff. including
interrogators, supervisory staff, three or four doctors, and a fev, psychologists. He
sald everyone was American except for the translators. who he said were mostly
Arabs. (They could have been Arab·Americans.) He said there was an Iraqi translator,
three Egyptians. and a lebanese woman.
The prison had three "emirs," or directors,.durlng this period. The first was a
bearded man. who Jabour estimates was about 40 years old: the second was a man
with a shaved head who was about 38 years old (With whom labour played chess on
occasion): and the third was an older man, about 55. who arrived In May 2006.
There were also five people who seemed to have the posillon of subdireclor. Two of
them called themselVes Mr. Charlie and Mr. Warren.
!aboursald that every few months he would see a psychologist. One was a man
about 50 years old. ~notherwas a woman about 55 years old: labour said that he
spent an. hour~ith her all one occasion.
.
The translators, the doctors, and lhe interrogators all Wore nonnal civilian clothing.
The guards, whD were all men, WOfe black unifonns and gloves, and had black
plastic masks covering their eyes. 'They did not carry weapons and they did not
speak, except at the very end of labour's Imprisonment, when they spoke to him in
Amerlcan·accented EngUsh.

Other Prisoners
GI~en the size of the prison wheR! he was held, labour estlmates that It had a
capacity of 30'35 detainees. His esUmate is further supported by the hundreds of
books and videos In the prison library, and the large number of personnel who
worked there:

Nearly all of jabour's contact with other prisoners occurred in the first month of his
captivity. He esllmates that there were about 12'i5 detainees held in the same area
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as him durlngthattlme. "They used to bang hard on our cell doors when they
brought our meals,~ he said: ~M. the beginning, ttley knocked on about 12-15 doors.'
labour found a name written on the wall In his ,ell: MaMan al·Adenl. He also heard
what he described as "terrible shouUng"-"someone saying 'Helpl Helpl'"-during
th e.flrst three days•. On tile third day, In a brief moment when the white noise had
stopped Oabour believes that It was a break between two generators). labour heard
someone call out to him In Arable: "Who are you? Oon't be afraid, talk." Although
labour had been warned not to talk to anyone, he conversed with tll!s prisoner
whenever the generator was qUiet. The man said his name was Marwan al·Adeni,
and that he had been held there fortwo months, He said that he had been arrested
ttle prevIous year, and that the Americans had kept him In a secret prison that had
Russian guards." He said that he and sl" other prisoners had been brought together
frQm that prison to the present one.

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Jaboursald that the two ofthem spoke every day for three days, until a guard came
<lnd punished them: he left )abourshackled for an Mur Is II painful stress position.
labour never spol<e to MaMan al-Adenl again, but" year later, he found his name
written On a mattress, and once he found hIs name written on a shirt. Also, durlng an
InterrogatIon when labour was first In custody. an Intettogatorshowed hIm a photo
that he said was of al-Adenl."
labour also heard other prisoners talking dUring thlsllme. agaIn In the briefmoment
when It seemed like the generators were being switched. Several people gave their
names, includIng HUdallit. Adnan, Abdul Baslt, and Abu Yasslr aHazeerl, And once,
dUrin& that first month, labour heard AyOUb al·Ubi (whom he had been hetd with hI
Pakistan) callins him.

transferred to the large ceU, he found an inscriptIon below the cell's sin k. It said:
~Malid Kahn, 15 December 2004. American·Palelstani. ~ Ke also received a boo k in
May 2006 from the prison library that may have been meant for Khan. He had not
requested the book, and believes It was given him by accident: inside it had a note
written in good English that said, "I'm feeling depressed and upset. I want to go
home to Pakistan. And I want the newspaper every day."
Cell B1. where /abourwas held for about a year and a half. was on a <orrldor with two
other cells•. For nearly a year, labour said-from Oecember 2004 until late the
following year-two Somalis were held In the cells next 10 his. He could sometimes
hear them speaking 10 each other in Somali. When Ihe !'rIO Somalis were moved. at
least one other prls,?oer replaced them, but that prIsoner never spoke and labour
does not know who he was.
Twice when he was confined In that cell he heard a prisoneryeUing. sounding very
upset." labour believes Ihat both Urnes it was a prisoner who was being led down
Ihe corridor: the sound approached and then it receded.
labeur saw only a slngte other prisoner dUring his entire lime at the secret prison.
The drcumslances of his meellng were surprising. At the end of FebTUary 2006, the
prison subdirector. whom labour liked, told labour that he had good news. "He said
they'd let me sit with another brother.~ labour recalled. "I said I don't believe you.
He asked me who did I want to sit with: Someone religious? Someone funny? t said
I wanted a funny
who likes 10 Joke. He said they had justIne guy for me, a good
gu,!, Vasslr a(·lazeeri.~'·

guy

An!!ther prisoner with whom labour had more indirect contact was Malld Khan,
currently Incarcerated at Guanlanamo." On December 18.2004. the day labourwas

He mel al·Jazeen the ne"t day. AHazeerltold labourthat he had arrived at the prison
In AprJl :.z004. "I think he was part of the group of si" prisoners who were transferred
With MalWan al·Adeni, • said labo ur. AI-Iazeerl told labour that he had been in a
place where they beat him badlY, doing pennanenl damage 10 his arm. Once they

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played loud mus1c ferfollr months stlillght," He said that the iuards were Russian
but the Interrogators were Amencen. He als!) saki that there were II lot of prisoners
at that prison. ana the prisonelS could speak to each other.
labour was allowed to 51t and talk to Vasslr aHazeeri about eight tlmes. sometimes
once a week, sometime onCe a month. Once their meetlllgs were suspended for a
month after a].)azeelt told labour that some Americans had enlered Ills room at 3
a.m. to show him photos ofAbu Musaa b al·Zarqawl. who was dead." The two were
nolsupposed to talk about such things. The last time labour spoke to aHazeeri was
In July 2006, a week before Jabourleft the facllity.

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labour also 'umed of Other detainees In US custody via his Interrogations. An
IntelTOglllOrshowed him a photo ofa Somali man whom labour had known
prevIously; the photo had been talien III labo ur's Gell (the Iirst small celO. Also In US
custody was an African man named Speen Ghul, the Americans showed labour
photos of him beth before and after his arrest. Other detainees that labour
remembers seeing photos ofwere two men named Relha al.Tunlsl and Talaha. '7
One photo that surprised labour was of a boy named Talha. who appeared to be nine
. or ten years old." HIs fatherwas said to be Hamza aHoll, a mlUlllnllnder tn
Wazlristan." WIlen labour saw the photo ofTalha, who was apparently In custody,
he expressed amazement that the United States was holding someone so young.

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As the mOllths and years passed, labour lost all hope of leaving prison. But on the
evening of My 30, 2006. without warning, the subdlrector of the prison infonned
labourthat labour would be leaving the following day. Notably, this an nouncement
came lust one month after the US Supreme Couft's landmark ruling In Hamdan v.
Rumsfeld, In which the Court held that detainees held as enemy combatants were
protected under the (ieneva Conventions."
Transfer to Jordan
The prison subdlrectcr said he knew where labourwas going to be sent. but that he
. could nottel! him. He saId there was no toilet in the plane so labour would have to
we"r dIapers. "nd that they would make a video of his naked body 10 show that his
body had not been harmed. He told labourto be ready 10 leave at 6 p.m.
The transfer team picked him up the next evening. They put cotton OVer his eyes.
colton in his ears. and rubberoverthat. Then they put a band around his head, a
mask over his face, and head phones over his urs. His hands were cuffed in front
and his legs were shaCkled. A belt was put around his legs, above the knees, and his
handcuffs were attached to It. "I felt tike a mummy," labour said•
They brought Jabouroutside to a car. and laid him down io ft. labeur is fairly certain
Ihat anotherprlsGnerwas next to him. The car drove foraboui an hour.

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labour was brought outside and put In a chair. and he heard three shots. "I was afraid,"
he said. "I thought they were shooting people.· The team was very aggressive with him.
increasing his fear.
SUddenly they removed all of his wrappings and took off all his clothes. When his
tries opened. he saw a man pointing a video camera at him. Then the transfer team
put a diaper On him. and put the same outfit back on, except this time they used
plastic handcuffs.

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He could only feel the alrplilne; he (auld not see ft. but II seemed to him to·be a
small clvlUan Jet. The seats Iilced forward. as In a normal passenger aln:llllt. In the
plane, dUring the flight. a doctortook hfs blood pressure. The ftlghtlasted about
.three·and·a·halfto rour hours.

Detention In Jordan and Israel
Alterthe plane lllnded, labourwas driven In a car for about 40 minutes and then
broucht Inslde a building. His handlers sat him down and began laking off the
wrapplngslhat covered him. Someone said to him In Arable. "Keep your eyes closed.
Now open Ihe!'lslowly.·

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occupied West Banlc}." Israeli agents were wailing for Jabour at the blidge. and the
Jard,lnlans handed him over to them.
•A few days after his transrerlo Israel. Jabourwas allowed to see a lawyer. and soon
after thaI he was brought before a jUdge. After six weeks in Israeli custody, he was
. released into Gaza. where some of his family members Uved. Two·and·a.halfyears
after.he was first anested, he WaS finally able to speak to his wife and children on
the phone.

When Jabauropened his eyes ho: saw uniformed soldiers as well as men In civilian
clothing. He could also see framed photos or KIng HU$~ln and KIng Abdullah, and
he guessed that he was I~ Jordan. Afterquestlonlng, he lOllS sent to a cell, where a
guard flnallytald hIm that he wasl" Amman,lordan. labour later found out that he
was beIng held al the headClU8rters oftlte jordanlan IntelOgence services.

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Acouple ofweelcs tater. on about August 14. he WllS vlslt~d by II representative of
the International Committee oftha Red Cross OCRC). The JCRe representative was
the first Independent monitor that labaurhad seen In twD.and·e·ltalfyears of
imprlsOl'1ment. -"He wes very surprlsed by my story.· labour said. labour gave the
lCRe representative the contact Informatlon for relatives who lived In lorden. Two
weeks later, a group oflabour's family members. some ofwhom had flown in from
abroad, came to the detention facility on visiting day and were allowed to speak to
Jabourfor a short while. -I was overjoyed.to see them," labour letertold Human
RIghts Watch.

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While In Iordanien custody,/abourwas also allowed to send letters 10 hIs wife and
chlldren. hIs first contatt with them In more than !WO years.
On September 18, 2006, the Jordanians transfemld labourto Israeli custody. That
morning. they told labourthat hewas being released. '"They said cansratulallons, I
was free,·,eboursald. "But I WlIS still In handcuffs. And then theytoolc me to a car
and drove me to the King Hussein Bridge Ion Ihe border of lerdan and the 'sraeU-

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L0016

on our countly. But I can say the procedures were tough. and they .wete safe, and
lawful, and necessary.""

The CIA's Secret Detention Program
The detentlon.and Interrogation program In.whlch labour was held was operated by
the US Central Intelligence Agency (CIA). It was authorized undar a classified

As dis(.uss~ below, InteITogation methods reportedly used In CIA secret prisons
Included torture and other.cltJel and Inhuman treatment-and Were anything but

September 17. 2001 presidential dlrective, and operated In close secrecy for nearly
fTveyellrs!'

lawful.

Discovering the Program
As labour's case IUustrates. prisoners In the OA program have been -disappeared;
held In acknowledged detention In secret facllitles, and barred from communicating
with familY members,ltgl!1 counsel. or anyone outslde. Although the International
Committee of the-Red Cross ha$ repeatedly expre$Sed concern about beIng denied
access to detainees In CIA custodY,the US government has teNsed to allow them to
visit such facUllles."

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tn a televIsed speech In September 2006. lust before the ann Iversary of the
Septamber 11 terrorist attacks. President George W. Bush pubtrcty acknowledged
that the'aA had been secretly detaining suspected tem:lrlsts.in [acmtles outside of
the UnIted States. The president saId that he could not reveal '"the spedfTcs afthls
progrllm,lnc1udlng where these detainees have been held and the details of their
conflnement.w Instead. hededlcaled most oftne speech to lauding the program's
accomplishments. WIllie making the IncreaSingly h~lIow claIm that "the Unlt~
Statt!S does not use torture,"·he described severnl cases where the CIA used "an
altematlve ~t of procedures" to obtain lnformatlon from detalnees wllo Were
resisting IntenQgatlon. Bush said, "I cannot describe the specific methods used-l
lh Ink ~u understand why-If' did. It would help the terrorlsts learn how to resIst
questIoning. and to keep Information from us that we need to prevent new attacks

u

PresldeM Bush's speech was the most Important offidalacknowledgement of the
CIA's detention program. but It was not the first I1me that information about secret
CIA detentfon had been made public. Indeed. reports that suspect"d al <laeda
operatives were being held by the CIA in "undisclosed locations abroad k began
circulating in 2002."
The first official acknowl~gem ent that such reports were true came with the fed eral
prOSecution of Zacarias Moussaoui forthe September 11 a!tad:s." In February 2003.
the federal district ludg~ hearing the Mo~ssaoui c~se ruled that the government had
to aUow Moussaoul's lawyer.; to question Ramzi bin al·Shihh. who was alleg~ly a
key figure In the September 11 attacks. and who had information that tended to
exculpate Maussaoul from responsibility in the attacks. Because defendants have a
constitutlonal right of access to exculpatory witnesses in the government's custody.
the government had to admit that !twas holding bin al·Shibh In a se(Tet location
overseas. The jovemment argued, however, that allowing Moussaoui's counsel to
question bin al·Shlbh would seriously lnterfere with bin al·Shibh·s interrogation.
Although the district court rejected the govemment's claim. ~ullng that questioning
via dosed-circult video should be allowed, the Cllurt of Appeals fot the Fourth Circuit

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IIlter reversed the dlstntt court's decision and barred all access to bin al·S!1jbh." A
similar Issue later arose In the federal prosecution ofUzal~ Paracha."
Mllre detalled and direct accounts of the CIA's se<ret detention and Interrogation
program emerged In 2004 and 2005 from former detainees. Most notably, in June 2004,
/Chaled el·Masri, a German dtlzen of Lebanese descent, totd German police a~out his
kidnapping, abuse. and secret detention. EI·Masri was arrested by Macedonlan agents
on December ~1. 200). on the Serbla·Macedonla border. held secretly for nearty a
month In a hotel In Skopje, then picked up by US agents and flown toAfghanlstan,
where he spent four months In unacknowledged detention. At the time the story was
made publfc, el·Masri·s lawyer saId that he believed et·Masrl had Ileen held by the CtA.
When joumailsl$ Interviewed etA officials regardIng el·Masrl's claims, the officials
l'l!~sed to elther(onnrm or deny thaI he had been held."

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Later In 20OS. three Vemenl Fonner detaInees told Amnesty Intematlonal about their
. experiences In CIA detention. and a number ofGuantanamo detainees told their
legal counsel that ptlorto their transfer to Guantanamo they had been held in a
secret ~dark prison" In Kabul, Afghanistan." All ofthese accounts had certain
cammon cllamclerlstlcs.lncluding descriptions af Interrogators and prison directors
who spoke American·accented English, black uniformed and masked gual'ds, f1lghts
tn whIch the detaInee was placed In diapers ~md wrapped up t1ke a package, and
various forms of physicat and mental abuse.

~

Relying on flight logs and Information from plane spolters (people who walch aircraft
arrivals and departures at airports), journalists and human rlghls investigatolS were
able to trace a number ofth~ flfghts by which lhe CIA allegedly transported prisoners."
Yet. despite mounting evidence of the CIA's secret prison program. lhe Bush
administration refused to discuss its operations. Indeed, It was reported that the
admInIstration did not desc,ibe the program In any reai detail to the congressional
intelligence committees tasked with providing oversight of the CIA's activities." Even
when the Washington Postpublished a front·page newS sto/y desctfblng the history
and scope oHhe detention progtllm in November 2005 a piece reportedly based on
accounts by current and former Intelligence officials-not a single administration
ollleta! spake about the program on the record."
According to the Washington Pos~ the secret detention program had at various times
included sUes in eIght countries, inclUding Thailand. Afghanistan and several
democracies In Eastern Europe. Although at the request of the US govemm enl the
Washington Posfdld not name the Eastern Europun countries where the prisons were
located, Human Rights Watch released information pointing to Poland and Romania as
among the sites ofdetention facilities." A few weeks later. AB!= News reportee! that at
least 11.a HIgh Value Targets" had been held in CPA custGdl' In PGland."
Based on information from current and former Intelligence sources, a number of
Journalists have descrlbed the interrogation methods used in CtA facilities. These

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.... HJS)P- f'QIfdft.~ xCOUm ofhawlheClAustdtMltu: letllO b....$9ott' PhSOl'ttfl ~oth to ia awn prisons..1ind 10
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prlu(crha'~rwz~ tkcClA'.MO'et pri.san prupam.
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L0018

"en hanted Interrogation tethnlques." a$ the CIA reportedly called them, induded
.extended sleep deprivation combIned wIth forced standing. as well as exposure to
extreme cold." The CIA al$o reportedly employed waterboardlng, a totture method
by whkh the prisoner Is stlGpl)ed to a bQarn and madeto feelUke he Ii drowning. 1t
Is beUeved that several oftlte 14 prisoners transferred to Guantanamo fn September
were subject to waterboarnlng."

custody." family members have filed sultln the Pakistani courts in some cases, but
withoul knOWing whether their relatives remain in Pakistani custody, are in US
custody, or are being held elsewhere."

The Pakistan Connection

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,labour's eJqlerlence of arrest In Paldstan and SUbsequent "dlsappear.lnte" Into CIA
custody was Iil' from unlque. 1ndeed, It appears that a large majorityoflhe prisoners
held by the CIA were originally arrested In Palds\an, often during 101nt U.S.·Pakistanl
operallons. Of the 14 high·level CIA detainees trllnsferred to Guanlanamo In september
2006, fo' example, nine were plGked up In Pakistan." And most of the other people whc>
are thought to have ~en In CIA custody.were anested In Paldstan.

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The Pakistani authorities have made no secret oftile !acttnat thev have handed over
seveml hu~dred terrorism suspeas to the United States, boll$tlng ofthe arrests and
mnsfel'S as pl\)ofof Plllllstan's cooperatlonln US counterterrorism effortS." Whlle
the majority oflhese detarnees were t""nsferted Into US military tustady In
Afghanistan 0, at Guantanamo," orwere transported to third countries via the C/A's
rendition program,'" some substantial number of them disappeared into CIA

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.AJ1z:Al1, hft'n~" !loCl.Iqt! ANc.li ("'~dul "KenmMchll'lood)..&tld II1h..,hmityt:ttrNtu1o. lhtfil'#. Mv mm.c.re n01l' Mo'Wn

tobto.l GnnEMlI_l'fttf tminl tpetltyq""itl a-.ClJAOctt. ~i's lIltIa-nb<lut•• ,t w-.kMwn, al1ncxr!h it lsUlOU!h1 thtt
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L0019

these prisoners (and'obvIQusly the one who WirS released) would not be considered
major suspects,

Former Detainees: Where Are They Now?
It Is not known precisely how manyde13lnees had been held in the CIA's secret
prison program at some point prior to September 2006, but It 1s certain that there
were many more than 14 ofthem.
EstlmattlS ottlle number of detainees held by the OA overth" cou~ otthe program
vary. The Wi!shfn8!Dn Postdescribed a !Wo-tlll( system of detention, with some 30
·maJor tem:lflsm suspetts· being held at high-secUrity prisons operated exclusively by
CIA per.>onnel. and an addiUonal 70 less Important suspeds beingtransferred to
prisons run by other countrfes'lntellIgence services,!> The major suspects, also known
as ·Hlgh Value Targets;· Were alleged top a~Qaeda leadetS.' not·root soldiers.·..

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The pictul'1! emerging from detainee accounts, however, sl,I811ests that these
numbers are undetstated, end tliat the true picture Is mOl'1l complex. for example, at
the prison 1n Afghan1stan where Khaled e\·Masri was held, the guards were Afghan,
but the Interrogators, the main director, and the people In charge of prisoner
lrllnsport appeared to be CA." So while the prisoners had dally contac! wlth Afghan
personnel, all of the Important decisions regarding detention, treatment, and release
were made by Americans.
And at the so·called Darle PrIson In Afghanistan. which appea~ to have been
operated solely by OA personnel, there were a substantial number of detainees who
were nat top terrorism suspetts. Human RIghts Watch knows of some 20 prisoners
prevIously held at that fuctnty Who are cUlTenUy held at Guantanamo, liS well a5 a
former detelnee who was released from Guantanamo In 2004"- The majority of
U$l.lfhttlGNyotllt&nt1.. ftltttnmlhd'ci~"",""ll:InttillIMfCOCllhtf:0Wltrit:t.wNt.·'1ent"'"!)n.efltl&''''lrt

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Missing Detainees
There 15 no comprehensive accountlng of CIA detainees. But based on detainee
testimony, press articles, and other sources, Human Rights Watch has put together a
list of 16 people whom we believe were once held in CIA prisons and whose current
whereabOUts are unknown. We have also compiled a separate list of 22 people who
were possibly once held In OA prisons and whose current Whereabouts are unknown."
The people listed.below-by name. nationality, and presumed place and date of
allest-are believed to have once been held in secret CIA prisons:
Ibn al·Shayl:h a[·Ubl (libyan) (Pakistan, n/01)"
2. Mohammed Omar Abdel-Rahman (aka Asadallah) (Egyptian) (Quelta, Pakistan,.z/03)
3. Yasslr aHazeeri (Algerian) (tahore, Paklstan, 3/03)
4; SUleiman Abdalla Salim Q<enynn)' (Mogadishu, Somalia, 3/03)
5. Marwan al-Adenl (Yemeni) (arrested in apprOXimately S{03)
6, Ali Abd el Rahman al Faqas1 al Ghamdi (aka Abu Bakr al Azdi) (SaudI) (Medina,
Saudi Arabia, 6{(3)
7. Hassan Ghul (PaklstanO (northern IraCl, 1/04)
8. Ayoub aI-Ubi (libyan) (peshawar, PakIstan, t/04)
9. Mohammed alAfghanl V\fghan born in Saudi Arabia) (Peshawar, Pakistan, ,/(4)
10, Abdul Basil (probably Saudi orYemenO (arrested ben". 6/04)
1.

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Similarly, prisoners such as Marwan labour and the three Yemeni former detainees
interviewed in 2005 by Amnesty International were far from top suspects-they were
evenNally released without charge. Vet they too were held in prisons that seemed to
have only American staff, as well as the e~treme high-security arrangern ents
characteristic of the CIA,

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$1 tt 5flou14 be tit'lpl$nJI~ thtt lb.. lm{ d Macq :EUl"lounCiar theClA's prlsoc'l plUJl'lim ,..r.,.i"su:trt:me'lyhi~ .nd thlt'
'ObstKils toohtll"i~thlJtrJt.arinfcnuttoo.~ dnrrtl:n•• l'l1.$hol1, ~b," my . .Ube m.nv OIt7«f«'mer 011. dd.it:eesd
~t!2:istcn,... tlcboctyouW"thilproa:r-l'Il'moW5.

SI' It Is btUtwd filal doljtri Wlltr.nsfatNd h'Gm(lA tuStNyl0 Uhy. irt my .aO()&.b~ 11li$tlu no'l bn-" COtlfinrt..~.

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L0020

u. Adnan (arrested before 6/0ij)
Hudelfa (arrested before 6/04)
13. Mohammed Naeem Noor Khan (aka Abu Talaha) (paklstanO (lahore. Pakistan, 7/04)
14. Muhammad Setmarlan Naser (Syrian/Spanish) (Quelle, PakIstan, u/os)
15. Unnamed Somali (pQssibly Shoeab as-Samail or Rethwan as·Somali)
16. Unnamed Somali (posslblyShoeab as·Somall or Rethwan as·Somali)
12.

The crudal, unanswered question is: where are at! these detainees now? One concern
is that the US may have transferred some of them to foreign prisons where for practical
purposes they remain under CIA contro\. Another worrying possibllily is that prisoners
were transferred from CIA custody to places where they face a serious risk of torture, in
violation oflhe fundamental prohibition on returns to torture. On the latterquesUon, it
Is worth noting that some of the mIssing prisoners are from Algeria, Etypt, Ubya. and
Syria; countries where the torture ofterrorism suspects is common.

In addition, the followIng people may have once been held In secl'l!t OA prisons:
1.

Abd al·Hadl al·lraql {presumably IraqO (1/02)

:t. Anas al·Uby (Ubyan) (Khartoum, Sudan. 2/(2)
3. Retha al·Tunlsl (Tunisian) {Karachi. P1Iklstan, early- to mld'2oo2)

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4. Sheikh Ahmed Salim (aka Swedan) (Tanzanian) (l<haradar, Pakistan. 7/rn)
5. Salf al Islam el MlIsry (Egyptian) (Pankisi Gorge. GeorgIa, r;/o2r
6. Amln al·Yalla (YemenI) Oran, 2002)
7. _al·Rubala (IraqI) Oran, 2002)
a. Aana SiddiquI (PakIstani) (Karachi, Pakistan, 3103)
9. Jawad al.Bash~r (Esyptlan) (Vlndher, ,BlIlochlslan. Paklstlltl, 5/(3)
10. SlIfwan al-Hasham (aka Haffiln ai-Hasham) (SaudI) (Hyderabad. "aklsta!'. 5/(3)
11. Abu NlIseem (Tunisian) (Peshawar, Paldstan, 6/0)
12. Walld bin Azml (unknown nationality) (KarachI, P;lklstan, 1/(4)
13. Ibad Al Yaqutl alShelkh al Sufiyan (Saudi) (KarachI. Paklstan,1/o4)
14- AmlrHusseln Abdullah al·Mlsri (aka FazalMohammad Abdullah at·Mlsrl)
(Egyptlan) (Karachi, Pakistan, 1/04)
15. KJ:lalld al-laWllhlri (Egyptian) (South Wazlrlstan, PakIstan, 2/04) .
16. Musaab Anlclll (aka al·Baluchl) (PaklstanQ (Karachi, Pakistan, 6/(4)
17. Qart S1llruUah Akhtar (PakistanI) (arrested In the UAE, a/Olj)
18. Mustafa Mohamed Fadhll (Kenyan/Egypllan) (eastern Punjab. Pakistan. a/at/!
19. Sharif al·Masri (EmUan) (Pakistan border. 8/04)
zo.OSllmll Nazlr (PakistanI) (Faisalabad, PakIstan, 11{04> .
21. Osamll bin Yousaf (pakistanI) tnlsalabad, PakISTan. 8/(5)
22.Speen Ghut (from Afrlca) (pakistan)

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.

L0021

The OA Prognim and Human Rights Violations
In his September 6. 2006 speech, President Bush stated that the CIA's detention and
Intemlgatlon program had been "sublect to multiple legal reviews by the Department
.of Justice and OA !awyers," and had "received strict ovelSlght by the CIA's InspectDr
General." But lfthe CIA prcglJlm passed scrutiny. as the President suggested, then
that ralse' serious questlDns about the legal review pro\flded by the responsible
government agencies on mutters: of national and International consequence. By
International human right or humanitarian law standards, the CIA program was
Illegal to Its core.
.

~(1

In secretly deta lolog and abuslng prIsoners like MalWan labour. the US government
violated a host of fundamental human rlgllls norms. Enfon:ed dlsappearanceencompassing arbitrary. secret and Incommunicado detention-and tOllure and
othen;ruel, In human and deglllding treatment are all prohibited under international
human rights taw.

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En~rced Olsa'ppearance

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The Intemallonal Convention for the Protection of Ail Persons from Enforced
DlsappeaTllnce (the Convention on Enforced DlsappeeRince) defines "enforced
dIsappearance" as:

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. tile arrest, detentIon. abduction oranyotherf<Jfm ofdeprtvatlon of
liberty by agents afthe State or by pel$Ons or groups of persons acting
with the authorization. support Dr acquiescence of the Slate, followed
by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts oflhe disappeared person,
Which place such a person outside the protection ofthe law."

Although the newly adopted convention has yet to enter into force, its definition of
enforced disappearance Isconsistent with definitions c<Jntained in a number of
earlier international instruments.'"
When the Conventlon on Enforced Olsappearance WaS opened for signatu r~ on
february 6,2007.57 countries signed immediately. Yet. although it had aclively
partklpated In the drafting of the convention. the United States was not among the
signatories. State Department spokesman Sean McCormack said that the United
States had not signed because the convention as adopted "was not one that mel our
needs and expectation s,' but he did not further elaborate'"
Intemationallaw bans "dlsapp.earances· in alt circumstances. The Convention on
Enforced OCsappearance states that, "No exceptional circumstances whatsoever,
whether a state of war ora threat of war •.. or any other public emergency, may be
. Invoked as a justlflcalion for enforced disappearance.' The convention bars secret
detentron and requires states parties to hold ali detainees in officially recognized
places of detention, maintain detailed official records of all detainees, authorize
detainees to communicate with theirfamiUes and iegal counsel, and give co!"petent
authorities access to detaInees.

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s:.ttsthd."fatced cli~1l1Cft omlt~.,.:
~ .. ,..rye,tft.~"W.Wj;(fa-r.i.pbutU1tit ftiU otothcrwi""priwdtdth..irlJberty brt GftIcj.l~of
~by.t~ltGo&K1l;tseU·.t'f.te.Ot«htt«b(;lli!:softhl'

lJtfJQIt,canee""tJ« _ refusaL to.dcmw(t'lf!tth-t ~tJlrintfon d\h.tr liberty•...midI pIllt*" JoI.l<h pltttl)n$ouuld«.
ttl. ~tfdifIA 01 th·I.w.
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tIS Stolte De;ttl't?l'ltnt. OlII1yPrea eliefiils. F.bruary 6. <1007• •

.. S-fnmnatitlfll'C.w.nwon<MltnIfPoUlial P.ipti:. art:da6{t), 7.9, Uld v,t'l}.f«. dmilN ~~s~lcn ofth~t1umJIn
riptll/{UUfHl&tmnmltt.d by~luppHttIlq6," we UftitC'd t4a~on.s t6JMl1-S$ictl ~r) HuruaRi!hu. "f1ep:nt sub~ueoS
ran-u"'Y"'~byMr.Mufrtdt{C"ffIi.mupc1d~upMch:ars"MttlUlmidl1tth*~t1/1linttfl'l.tionIPJui""nlllll~d
h..,~lt'I rilhtlffllM*01k lorchtflrotltdlon 0( pmons from nbad. wlnTOlunt1lryidlMppnnnu. pUfSuullo patlS"IPh
orCOf'lSl'IiIROIt raot~iOl\"'IROt/,p:' tteN-41~aoz/7]; p. ]6.

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,..~uGfComrnIi:$JOftfWlo(~C7nuxnJ~ (Gcn".:UnltItdN~III"U02.}fJCN.4120a2f11. for«umple,.tht
Olfc4nMCft an .11.Vroft(:{lOl' oI.n ~,tromWmttd Oi-upptw;r.l;"". ,dcpted bflht U.'N. GenttilAsRmb(yln 1~

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The prnctice of.mforced disappearance constitutes a grave threat to a number of
human light~,lnduding the tlghtto life. the prohibition on to~ure and cruel,
Inhuman, and degrading treatment, the right to liberty and security of the person,
and the light to a fa'r and public triaL" The UN Working Group On Enforced
... Sft"~portS~ll'Iit%eCIbyMr.Mpf1td NowI'k.II'6tptI\~"t

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L0022

Ofsappearances hn long recognlled that the crime of enfofted disappearance ·Js a
continuous crime until the fate or whereabouts ofthe disappeared person becomes
known.·.. Therefore, persons *cllsappeared* In US custody who have since' been
transferred elsewhere remain the legal obligation of the United States so long 85
their fate orwhereab~ remain unknoWll,
Moreover, enforced disappearance not only vIolates the basic rights of the ·disappeared*
person,lt Inflicts severe mental pain and suffering on members of that per.;on·s family."
B~sldes harming labour himself. his secret detention meant that his three children were
left not knowing whetherthey stili had a fllther, and his wIfe not knowing whelher she still
had a husband. This uncertaInty compounds the Impact of the loss.

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Notably, the UN Worldng GfIlUp on ArbltralY Detention has expressed grave concern about·
the US Kc>vemment's use of Sel:ret prisons to hold suspected teflorlsts, concluding that
detention under such candillons Is *a serious denial of [the detainees' basic human rights
and Is Incompatlble with both International humanitarian law and human rights law.·"
To help guarantetl their protectlon fnlm abuse, detainees shOUld be held In officially
recognized places of detention. The prisoners' names'and the place of their detention,
as well as the names of the persons responsible forlhelr detention. shOUld be kept in
registers readily available and accessible to conCerned persons. Including relatiVes and
friends. In addition. ·"ccurate Informallon on [the prisoners') custody and whereabouts,
Indudlng transfe~.lshould bel made promptly available to their relatives and lawyers or
other persons ofconfldence."" Analty, the t1'!1e "nd place ofalt Interrogations should

be recorded, togetherwlIh the names of all those presenl. and this information should
be available for purposes of judiclal or administrative proceedings.'"
International law also bars incommunicado detention, even when it does nol constitute
·disappearance.·.. And acc"rillnll' to the Restatement (ThIrd) of Foreign Relations Law"f
the United States. 8 state violates international.law if. as a matter of state po licy. it
practices, encourages. Or condones prolonged arbitrary detention."

Torture and Other m·Treatme!'t
International human rights law prohibits t"rture and other mistreatment of persons in
custody In aU Circumstances. dUring wartIme as well as peacetime. Among th e relevant
treaties are the International Covenant on «\!il and PoUtital Rights and the Conveniion
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture), both of which the United States has ratified.
Prohibitions on torture and other Ill·treatment are also found in other international
documents, such 8S the Universal Declaration of Human Rights. the U.N. Body of
Principles for the Protection ofAll Persons under Any Form of Detention "r
Imprisonment. and the UN Standard Minimum Rules for the Treatment of Prisoners.
International humanitarian law (the laws of war) also prohibits torture and coerced
interrogatrons at all times dUring armed conflict. This prohibition, which is found in
the Geneva Conventrons" as well as custo!"ary laws of war." is reflected in US
military field manuals and training manua[s,"

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On De<.ember 2, 2002, Secretary of Defense Donald Rumsfe\d approved 16 methods
for use in Interrogation. at Guant6namo Bay, Including "stress positions,' hooding,
Isolation. stripplnf. deprivation of light, removal of religIous·Items. forced grooming
(shaving of facial hal", and use ofdogs. On januaIY 15. 2003. following crl!lclsm from
the NaVy seneral counsel. Rumsfeld rescInded the Oecember 2 gutdellnes, stating that
the harsherte<:hnlques In those guldellnes could be used only with his approval.
Rumsfelcl then estabU~hed a working group to examIne which IntelTQgatlon techniques
should be allowed for prlsoner..ln Guanh\namo. This study led to Rumsfeld's
prOmulgation; on Aprfl16. 2003. ofa memo outlining techniques that could only be
applied to IntelTQgatlons of ·unlawrul combatants· held at Guan~"amo. Stress
posltlons, stripping and the use of dogs were no longer authorll:ed."

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These Interrogatlon techniques "mlgrated- -In the words of the Schle.lnger reporl-to
lraq.and Afghanistan. where they were regularly applied by US personnel to detainees!'
Alterthe Abu Ghra(b photos were made publk: In Aprll200lj, the Bush admlnlstratron
repudiated and eventually replaced the August 1, 2002 Department ofJustice memo that
had proVided the legal ratronale forthe approved Interrogation methods.
Nevertheless, such restrictions on Interrogation methods apparently did not apply to the
CIA. The Bush administration and the Justlce Deparlment reportedly gave the CIA the
authority to use adclltlonal techniques, In~ludlng "watemoarding" '(mock drowning)." In
january ~ooS. Attorney General·deli/gnate Alberto Gonzales dalmed In a written
response dUllng confirmation hurfngs that the Intematlonatlegal prohibitIon on cruel.
Inhuman or degrading (00) treatment did not apply to US personnel In the treatment of
non-<Itlzens abroad, Indicating that no law would prohibit the CIA from engaging in (10
treatment When It Interrogates non·Amen"ns outsIde the United States.
In December 2005 Congress enacted.,-over the Bush admlnlstration's ob!ectlonsthe Detainee Treatment Act. whleh Induded the ~Mccaln amendment~ that prohibits
1I1 e use of cruel."Inhuman. or degrading treatment by any US official openlHng
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anywhere In tile world. And in jurye 2006, the Supreme Court ruled In Hamdan v.
Rums{eld that the US government was required to treat at Qaeda delalnees
humanely In accordance with the provisions of Common Article 3 to the Geneva
Conventions.
The Defense Department then ordered the military to ensure that all its practices
complied with these standards and announced neW rules repudiating many abusive
interrogation methods, including "waterboardlng,' painful stress positions. and
prolonged sleep deprivation or exposure to cold. However. the Bush administration
s1multaneo~sly proposed legislation effe<.t1vely rewriting the hu rnane treatment
standard. of Common Artide 3 to permit the CIA to conUnue using the abusive
interrogation techniques now banned by the Pentagon. Congress ultimately rejected
the administration's proposal, but with mixed results, In the Military Commissions
Act of 2006, Congress retained most ofthe War Crimes Act of 1996, whith exposes
Interrogators to criminal prosecution for torture and -cruel and inhuman Ireatment"
(defined as conduct that causes serious physical or mental pain or suffering).
However, tlle law narrowed prosetutable offenses under the War Crlmes Atl by
creating a hlgher.threshold for Inflicting serious physical pain or suffering,
preventing prosecution of interrogators for non·prolonged mental abuse occurring
prior to the new law.
.
Notably. even though lhe US authorities have claimed that detainees in (IA ~ustody
wetetreated in accordance with the law. they have,been taking aggressive steps to
ensure that the details oftheirtreatment are not disclosed. The government has, to
date, barred legal access to Majid Khan. one of the 14 detain ees transferred to
Guantanamo last September, ctalmlng that because hewas previously In CIA
custody he may have "come into possession or{classifledllnformation, including
locations of detention. condltlcms of detention, and altematlve interrogation
techniques."" Similarly. the Military Commissions Act of 2006 and its Rules of
Evidence and Procedure contain a number of provisIons meant to protect the CIA's
"methods and actlvities" from disclosure: methods and activities that are known 10
indude "disappearan~e.· torture. end other abuses.

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L0024

Recommendations

'<;Oncluslon
When President Bush announ,ed In September 2006 that. as ofthat moment. there
were no prisoners In CIA custody. he did not say that the CIA's prison p!Ogr.lm was
closlng permanently. Indeed. the apparent purpose of his spe«h was the opposite:
he aflUed that "as more hlgh·ranking terrorists are captured. the need to obtain
Intelligence from them will remain "m,al-and IIavlng a CIA program for questioning
terrorists wlll contlnue to be crucial to getting Ufe·savlng informatlon."" And when
he signed the MlIItaryComrillsslons Act into law a few weeks Illte;. he asserted that
the legislation would "allow the Centl1lllntelllgence Agency to continue Its progr.lm
for questioning keytell'orlst lellders and operatives.""

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President Bush Is wrong on the law. Under a'ny reasonable reading oftJ:le Detainee
Treatment Act and the Mllltary Commissions Act, the abusive treatment of detaInees
tIlat eharacterized the CtA'sdetentlon and Interrogation program Is Illegal. But
perhaps as worrying as the President's misinterpretation orlegal standards Is his
disregard of basic prinCIples.
The CIA program-and the civilian l....der'S who created It-have Inflicted tremendous
harm on the reputation. moral standln,. and Integrity of Ihe United States. It Is time,
now, to·repudlate that progr.lm. and to fake steps to repair the damage It has caused.

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The US govem~ent should:
• RepUdiate the use of secret detention and ,oer'ive Interrogation as
tactles In flghting terrorism. and announce that the CIA's detention
and Interrogation program Is being permanently discontinued;
• Disclose the location and current status of tile detention facilities
where Marwan Jabourwas held. as well as the location and current
status of all other secret delentlon facilities used by the CIA Since 2001;
• Dfsclose the Identities. fate, and current whereabouts of all prisoners
held for any period of time at facilities operated or controlled by the
OA since 2001. and, fOr prisoners transferred to Ihe custody of another
government, disclose the date lind location of the transfer;
• Order the release of any prisoner held In another country's prisons at
the behest ofthe United States. or, If evidence exists of a prisoner's
Involvement In criminaL offenses, transfer the prisoner to the United
States for prosecution in US courts In accordance with Inlernational{y
recognized faiTtnal standards;
• Hold terrorist suspects only In officially recogniZed places of detenlion
where they are registered and hav~ ~ccess 10 family members.l~wyers.
and courts: treat them In accordance wilh International standards on
lhe trealment of prisoners. and either charge them promptly orrelease
them:

"TIIe_-.-.·_Oood.....

Acknowledge pU.bllcly that US domestic law (indudlng the Detaine~
Treatment Act. the Mllita/y Commissions ACl, and the Hamdan
decision) bars the use of abusive interrogation techiques such as

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"Wat.lboardlng,· extended sleel> deprivation. and forced ••posure to
""tremes of heat and cold;

• barth. use of statements obtained as result of coercion from
milltary commlsslcm trials.

• Sign <Ind ratify the Intemallonal Convention tor the Prote<l!on of All
Persons from Enforced DIsappearance;
•

•

Ratlfythe Optional Protocol to the Convention !'gainst Torture and
other Crue~ Inhuman or Degrading Treatment or Punishment, which
establishes a system of regUlar vIsits undertaken by Independent
Intemallonalllnd natIonal bodies to places where people are deprived
ofthelr Uberty,ln order to prevent torture and other mlstrl!atment.

Pass legislation to ensure that all secret detention centers are shut
down pennanently and that no one is forcibly disappeared into US
custody or otherwise held Incommunicado;

• Pass legislation to prohibit the return or transfer of persons to
countries where they are at risk of torture or other abusive trealment,
and to barthe government from relying on "diplomatic assurances' to
justify such tlllnsfers:

The US Congress should:
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Hold hearings to InvestIgate the CrA's secret detenllon program, with
the goal of ascertaining the scope ofthe program. the manner In whlcl1
detainees were treated (IncludIng the Interrogatlo'n methods employed
on them), and the fate and current whereabouts of every perSon ever
held In the prOgram;

•

Repeal the MlUtary Commissions Act of 2006 or, at a mInimum. amend
Ilto:
•

•

ensure that all detainees In US custody, whether held on US
temtolY or abroad, are guaranteed the rightto habeas corpus;

Close any secret detention.facllities that may be operating In Pakistan.·
register all prisoners in Pakistani custody Oncluding those in the custody of
the [ntel11gence services), and ensure that all prisoners are brought before a
ludge within a short time of their arrest:

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Transfer prisoners to the US authorities in accordance. wllh Pakistani law and
only after obtaining written aSsuJ<lnces that the prisoners will be brought
beforl! US courts. promptly charged or released, and will not be placed in
indefinite delentlon at Guantanarno or elsewhere;
.' Initiate a parliamentary Investigation of the govemment's role in supporting
and assisting CIA abuses in Pakistan.

reform the law's proteetlons on dasslfled -methods and
activIties- SO that these provisions cannot be used to protect
the CIA's t~rtlve Interrogation methods against disclosure;

.

L0026

L

The government of Pakistan should:
•

• Cornpelthe WhIte House to provide the House and Senate Intelligence
committees with the September 17. 2001 presidential finding that
authorized the CIA to Inltlate Its program of 5lItret'detention and
Interrogation;

Press the Depallmentof]UstiCil tn vigorously prosecute civlllansIncluding those at high levels of authonty-who are responslb Ie for
engaging In. authorizing or condonIng the mistreatment of detainees.

5lOA'P'II:t'JO)lDt

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V

UNCLASSIFIED
RELEASED IN FULL
L Press Guidance
October 26, 2004

..~ 15'

IRAQ: TRANSFER OF DETAINEES
Q: What role did the State Department play in determining the DO] legal
opinion that certain detainees in Iraq are not covered by the Geneva

Conventions?

A:
• THE STATE DEPARTMENT REVIEWED THE
MEMORANDUM DISCUSSED IN TODAY'S ARTICLE AND
PROVIDED COMMENTS TO THE JUSTICE DEPARTMENT.

• WE REFER YOU TO THE DEPARTMENT OF JUSTICE FOR
~

FURTHER QUESTIONS REGARDING THAT

MEMORANDUM..

Background: The Washington Post reported on Sunday that DOJ's Office of Legal
Coun·sel had drafted a .confidential memo aut~orizing the CIA to transfer certain
detainees out of Iraq for interrogation purposes. The article indicates that the CIA
relied on the.legal authority in this draft memo to transport up to twelve detainees
out of Iraq for questioning.
.
The New York Times reported today on another memorandum that DOJ issued on
the same topic, and which was finalized. The Times reports that the second
memorandum concluded that some individuals located in Iraq-specifically, nonIraqis who are suspected to be members of AI Qaeda or otber terrorist
organizations and who traveled to Iraq after tbe U.S. invasion to engage in
terrorism--were not "protected persons" and therefore would not faD within tbe
protections of the Fourth Geneva Convention. Article 49 of tbeFourth Geneva
Convention prohibits "individual or mass forcible transfers, as well as deportations
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 04 SEP 2008 200706444

UNCLASSIFIED
L0027

.-

UNCLASSIFIED

of protected persons from occupied territory," regardless of the motive for the
transfer.
.
Given the sensitive nature ofthe two memoranda at issue and the fact that DOJ
produced the memos, DOJ is in the best position to answer any questions about
them.

UNCLASSIFIED
L0028

lTNCLASSIFIED

Drafted: LIPM: A Deeks x77177
Cleared: L: J Thessin cr ~ b
L~M: J Dorosin 0' ~
SIWCI: R Miller if
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UNCLASSIFIED
L0029

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UNCLASSIFIE!Wd ~ ~

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CLASSIFICATION

.,

NODIS

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RELEASED IN FULL'

U S. Department ofState
Executive'Secretariat
DECAPTIONED

To:

L

The attached document may be seen only by. the addressee and, if not expressly precluded from.
doing so, by those officials under his authority whon'! he or she considers to have a clear-cut "need to .
know."
. The document is not to be reproduced, given any additional distribution or discussed with
others ~n the Department of State, or in other Departments, Agencies or Bureaus without the express
prior approval ofthe Executive Secretary.
Addressees outside the Department of State should handle the document in accordance with
the above instructions.
. When this document is no longer needed, the recipient is responsible for seeing that it is
destroyed.

Executive Secretary

SECRET
CLASSIFICATION
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE.ID: 12 AUG 2009 200706444
c:\\\in386Ipmdoc':1odis.pm4

NODIS

updaled 1/4194

UNCLASSIFIED
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u. S. Department ofState

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Executive Secretariat
DECAPTIONED
DECAPTIONED

To:

L

• The attached document may be .seen only by tbe addressee and, ·if not expressly precluded from
. doing so, by those officials under his authority whom he or she considers to have a clear-cut "need to
know."
The document is not to be reproduced, given any additional distribution or discussed with
others in the Dep~rtment of State, or in other Depm1mcnts, Agencies or Bureaus without the express
prior approval of the Executive Secretary.
Addressees outside the Department of State should handle the document in accordance with
the above instructions.
When this document is no longer needed, the recipient is responsible for seeing that it is
destroyed.

Executive Secretary

\.

\

\

\.

'. UNIT~p'·j~~~sA~TMENT OF STATE
\CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 12 AUG 2009 200706444

NODIS
updated 1/4194

UNCLASSIFIED
L0031

UNCLASSIFIED
RELEASED IN FULL
UNCLAS
CX2BERLN:
ACTION:
INFO:
CXBERLIN:
ACTION:
INFO:

I- /! I

BERLIN 03730

POL POLMIL
DAO DCM JIS PAO DAOBONN AMB ODC ECON CHRON
POL POLMIL
DAO DCM JIS PAO DAOBONN AMB ODC ECON CHRON

DISSEMINATION: POLMIL
CHARGE: PROG
APPROVED: POL: JBAUMAN
DRAFTED: POL: TSCHULZ/KPELZ
CLEARED: DAO: JBREEN; POL: JLISTER
VZCZCRLI993
00 RUEHC RUEHNO RUEHBS RUEHZL RUEKJCS RHMFISS
RHEHNSC
DE RUEHRL #3730 3081527
ZNR UUUUU ZZH
o 041527Z NOV 05
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9870
INFO RUEHNO/USMISSI0N USNATO BRUSSELS BE IMMEDIATE
RUEHBS/USEU BRU$SELS IMMEDIATE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RHMFISS/HQ USEUCOM VAIHINGEN GE
BT
UNCLAS BERLIN 003730
SENSITIVE
DEPT FOR EUR/AGS, EUR/ERA, EUR/RPM
E.O. 12958: N/A
TAGS: NATO, PTER, COE, AF , GM
SUBJECT: RUMORS OF SECRET DETENTION FACILITIES TO BE
RAISED AT NATO-PA AND COUNCIL OF EUROPE MEETINGS:
1. (SBU) ACCORDING TO THE SOCIAL DEMOCRATIC PARTY (SPD)
STAFFER RESPONSIBLE FOR NATO PARLIAMENTARY ASSEMBLY (PA)
ISSUES, THE GERMAN DELEGATION TO THE PA IS LIKELY TO
RAISE THE ISSUE OF RUMORS OF SECRET DETENTION FACILITIES
IN EASTERN EUROPE AT THE UPCOMING NOVEMBER 11-15 PA

.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

UNCLASSIFIED
L0032

•

UNCLASSIFIED

•

MEETING IN COPENHAGEN. THE STAFFER, WHO IS CLOSE TO
GERMAN PA DELEGATION HEAD BUNDESTAG MEMBER MARKUS
MECKEL, PREDICTS THAT THE ISSUE WILL BE HIGHLY
CONTROVERSIAL, ESPECIALLY IN THE CONTEXT OF PA
DISAPPOINTMENTS/FRUSTRATION OVER CONGRBSSMAN HEFLEY'S
INABILITY TO FULFILL A PRIOR PROMISE TO ARRANGE A PA
VISIT TO GUANTANAMO.
(THE STAFFER BELIEVES THAT THE
PENTAGON REFUSED TO AUTHORIZE THE PA VISIT.) THE
STAFFER ALSO PREDICTS A HEFTY DEBATE ON THE ISSUE AT THE
NOVEMBER 25 MEETING OF THE COUNCIL OF EUROPE, AND OPINED
THAT - IF PRESS REPORTS ARE PROVEN ACCURATE - IT WOULD
CONSTITUTE A MAJOR VIOLATION OF COUNCIL OF EUROPE
REGULATIONS AGAINST ALLOWING SUCH INSTALLATIONS ON THE
TERRITORY OF MEMBER STATES.
TIMKEN
BT
#3730
NNNN

I

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UNCLASSIFIED
L0033

UNCLASSIFIED
RELEASED IN FULL

L 1)1-

UNCLASSIFIED
PROG 11/16/2005
POLM/C:JROSENBLATT
POL:KEBAKER,POL/D: BTURNER
POL/D: BTURNER
POLOUT
AMEMBASSY PARIS
SECSTATE WASHDC IMMEDIATE
INFO EUROPEAN POLITICAL COLLECTIVE PRIORITY
AMCONSUL STRASBOURG PRIORITY
E.O. 129SB: N/A
TAGS: PREL, PINR, PINS, FR
SUBJECT: ACTION REQUEST: GUIDANCE ON RESPONSE TO COE
INVESTIGATION
1.

(U)

This is an action request.

See para 3.

2.
(U) Amb. Stapleton received by fax a letter (full text
para 4) from Dick Marty, whom the Council of Europe
Parliamentary Assembly has appointed to investigate the .
allegations of CIA secret detention centers in CoE member
countries. The key phrase reads, III would very much
appreciate receiving from your authorities any pertinent
information they may pe able, to provide me with on this
subject. II
.
3.
(U) ACTION REQUEST: Please provide authorized
language for use by Ambassador and Strasbourg consulate in
response to COE requests.,
4.

(U) Text of Marty letter:

Parliamentary Assembly
The Council of Europe
Committee on Legal Affairs and Human Rights
The Chairperson
14 November 2005
Dear Mr. Roberts Stapleton,
I address this letter to you in your capacity as Permanent
Observer of the United States of America to the Council of
Europe.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED
L0034

.

-

UNCLASSIFIED

As you are no doubt aware, I have recently been instructed
by the Parliamentary Assembly's Committee on Legal Affairs
and Human Rights to collect information on "alleged secret
detention centres in Council of Europe member states" as a
result of communications received on this subject from a
number of sources, especially Human Rights Watch.
With this in mind, and in.part~cular the existence of
serious allegations concerning your country's involvement
in such activities in Council of Europe member States as of
2001, I would very much appreciate receiving from your
authorities any pertinent information they may be able to
provide me with on this subject.
I look forward to receiving a reply to my request at your
earliest convenience and thank you for your- cooperation.
Yours Sincerely,
Dick Marty
END LETTER TEXT

Please visit Parisi Classified Website at:
http://www.state.sgov.gov/p/eur/paris/index.cfm
Hofmann
.

UNCLASSIFIED
L0035

,

.

UNCLASSIFIED

i

Parliamentary Assembly
Assemblee parlemeritaire,

·~·m~

:

,I

AS/Jur (2006) 03 rev
22 January 2006 . '

RELEASED IN FULL

L/;{~

aJdoC03 2006rev

Committee on· Legal Affairs and Human Rights

Alleged secret detentions in Council of EurQpe
member states,
Information Memorandum II

.

Rapporteur: Mr Dick Marty, Switzerland, Alliance of Liberals and Democrats for
Europe

.--...,

A.

IntroducUon

B.

Steps taken to date

C.

Criminal Investigations and other reactIons

a.

Council of Europe member countries
i.
Overview
ii.
The more detailed cases of Italy and Switzerland
Italy
•
Switzerland

b.

Debate In North America

D.

Reminder: antl·terrorist action must respect human rights

E.

Preliminary analysis of the Information already o,btalned

a.
b.
c.
d.

F.

,Awareness of Council of Europe member states?
Extraordinary rendition and torture· a link known and accepted?
Secret detention centres
Kosovo and Chechnya

Looking ahead to the continuing investigation

APPENDICES
AppendiX I: Alleged secret detentions in Council of Europe member states:
Background information
Appendix Ii: Letter of 19 December 2005 from Mr Dick Marty, Chairperson of the Committee on
Legal Affairs and Human Rights to the Chairpersons of the National Delegations
Appendix III: Letter of 15 December 2005 from Mr Dick Marty, Chairperson of the Committee on
Legal Affairs and Human Rights to Mr Antonio La Pergola, President of the European Commission
for Democracy through Law
'
Appendix IV: Communication of 21 November 2005 from the Secretary General of the Council of
Europe to the Contracting Parties to the European Conveniion on Human Rights
F- 67075 Strnsboul'9 Cedex, tel: +33 38841 2000, fax: +33 3 88 412702, hl:lp:!lassembly.Ole,int, e·ma~: assemb/y@coe.lnt

UNITED STATES DEPARTMENTOF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

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A.

2

Introduction

1.
Flr~t ot all, it 1;3 necessary to set this work in context in terms of both facts and
.chronology (the latter being of some significance in this· affair). I would stress that the
allegations that are now receiving media coverage worldwide were already known and were
condemned ~y the Council of Europe Parliamentary Assembly in a.report on the "Lawfulness
of detentions by the United States in GuantAnamo Bay" presented by my colleague Kevin
McNamara. to which I shall refer in this memorandum1 • In his report he condemned the illegal
practice of "extraordinary rendition" and recommended that Council of Europe member states
"ensure that their territory and facilities {were} not used in connection with practices of secret
detention or rendition in possible violation of international human rights laoQ'!-.
.
2.
At the tIme, the issue did not elicit the same media coverage as it is now receiving.
.We may well ask why it is only now that the allegations concerning secret det~nlion centres in
Europe are triggering' a proper debate and public shock and indignation at the reports of iIItreatment and even torture in this connection.
countries that pride themselves in being
lqng-standing democracies that protect human rights. the revelation of these allegations
should have sparked off reactions and categorical condemnation several months ago, and yet
this was not the case, with a few exceptions, ~uch as the article by the wrlter and journalist
Stephen Grey ("United States: trade In torture-, Le Monde diplomatique, April 2005) and the
articles by Guido Olimpio iii the Corriere della Sera and his book Operazione Hotel California
(Feltrlnelll. Octo~er 2005).

In

.. __ e
I

3.
I am particularly struck by the fact that It Is in the United States that the discussions
first really took off. Following an article in The Washington Post and a report by Human Rights
Watch (HRW) published in early November, the international media have reported allegations
that the CIA is or was running a system of secret prisons, including prisons in certain "central
and east European democracies". Numerous aircraft chartered by the CiA allegedly flew over,
to and from European territory (benefiting, therefore. from airport facilities in Council of
Europe member states) in order to transport suspects. completely illegally, to these secret
centres.
.
4.
Whereas The Washington Post did not mention any countries by name (further to an .
agreement entered into with the United States Government, which, to my mind, suggests that
the reports are true). HRW expressly mentioned Poland and Romania. The press reports also
quote denials by officials from Poland3 and Romania, but also Latvia, the Czech RepUblic,
Georgia, Armenia and Bulgaria.
5.
Since then. recent further information has extended the list of countries allegedly
concerned by the existence of secret detention centres. According to a fax from the Egyptian
Ministry of European Affairs to the Egyptian Embassy in London, intercepted by the Swiss
intelligence services, such centres existed in Romania, BUlgaria, Macedonia, Kosovo and'
Ukraine.
.
6.
On 5 December 2005 ABC reported, in turn, the eXistence of secret prisons in Poland
and Romania that had apparently been closed follOWing The Washington Posts revelations.
According to ABC, eleven suspects detained in these centres were then transferred to CIA
facilities in North Africa. They were allegedly submitted to the harshest interrogation
techniques (so-called "enhanced interrogatlon techniques"). I would point out that the ABC
article confirming the use of secret detention camps in Poland and Romania by the CIA was
available on the Internet for only a very short time before being withdrawn. This strikes me as
a tslllng indication of the pressure put on the media in this affair (in this particular case, the
pressure was apparently brought to bear direct by the CIA). .

I See 00c.10497, report by the Committee on Legal Affairs and Human Rights (Rapporteur:
McNamara) and Resolution 1433 (2005), on the lawfulness of detentions by the United States in

Guanttmamo Bay.
2

3

Above-mentioned Resolution 1433 (2005), § 10.vii.
A denial that was firmly reiterated by President Aleksander Kwasniewski on 7 December 2005.

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7.
It would seem· from confidential contacts that the information revealed by The
Washington Post, HRW and ABC came from different sources, probably all well-informed
official. sources. This is clearly a factor that adds to the credibility of the allegations, since the
media concerned have not simply taken informalion from one another.
8.
In an interview broadca~t by the American channel ABC on 29 November 2005, the
Director of the United States ~ntral Intelligence Agency, Porter Goss, did not deny the
existence of CIA secret prisons in various parts of the world where people suspected of
terrorism were held. He did. however, categorically deny that the United States used torture•
.while refusing to pass Judgment on certain interrogation techniques used by its services.
9.
On 5 December 2005, Condoleezza Rice. the American Secretary of State, made a
statement addressed to Europeans in which she did not, at any point, deny'the existence of
the alleged centres, or of the flights transporting detainees, but re~ffirmed the need to (esort
to "extraordinary (enditions" in the context of efforts to counter terrorism. The only thing that
Ms Rice categorically denied was the use of torture.
10.
On 3 November Mr Friso Roscam Abbing, spokesman for Franco Frattinl, VicePresident of the European Commission and Commissioner for Justice, Freedom and Security,
said that the CommIssion would be seeking further Information, on the grounds .that such
secret detention centres would be a violation of the founding principles of the European
Union. On 4 November he said that the Commission had no reason to doubt the denials by .
the Polish and Romanian Governments. On 14 November Mr Frattini told the European
Parliament that he welcomed the investigation initiated by the Council of Europe and that his
departments would be following it closely. On 7 December 2005 Mr Frattini wrote to his
colleagues Jacques Barrot and Benita Ferrero-Waldner asking them to support the requests
the Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary
Assembly had submitted to EurocontroJ and the European Union Satellite Centre (EUSC). On
26 November 2005 the British Foreign Secretary, Jack Straw, asked the American authorities,
on behalf of the European Union, for explanations of the alleged stopovers in Europe of
aircraft chartered by the CIA.
11.
On 4 November Alvaro Gil-Robles, Council of Europe Commissioner for Human
Rights, called for an investigation into the allegations.

12.
The same day, the President of the Parliamentary Assembly, Rene van der Unden,
asked the Committee on Legal Affairs and Human Rights, in a press release, to look into the
allegations, stating that. if such detention centres did in fact exist, it would be a violation of the
principles of both the European Convention on Human Rights and the European Convention
for the Prevention of Torture.
13.
Mention should also be made of the stand taken by the United Nations High
Commissioner for Human Rights, Ms Louise Arbour, Who said in an article in Le Monde
published on 7 December 2005 that secret detention was a form of torture in itself, for the
person detained, who was at the mercy of the detaining authorities, and, worse still, for the
families, who were faced with a situation that amounted to that qf a missing person.
14.
On 15 December the Euro ean Parlia
committee 10·1 vestl ate tea e ed ill altr
s and the suspected existence
of secret CIA etention facilities In the European Union and in candidate countries. On 12
January 2006 the European parliamentarians decided to go ahead and set up such a
committee. On 18 January the European Parliament. sitting in Strasbourg, approved the
mandate and membership suggested by the Conference of Presidents of the Political Groups
for its temporary 46-member committee, which is to investigate the allegations of CIA prisons
in Europe where persons suspected of terrorism have allegedly been detained and tortured. I
am highly satIsfied to note that the work of this committee explicitly reflects a continued desire
to co-operate fully with our investigation.

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15. In November and December 2005 the Committee on Legal Affairs and Human Rights
was particularly'active in connection with ·this affair. At it$ meeting on 7 November 2005,
following President van der Linden's request; it discussed the matter, including the possibility
of inviting the Secretary General of the Council of Europe to ask all Contracting Parties to the
European Convention on Human Rights for information about the allegations, in accordance
with the procedure provided for in Article 52 of the Convention. At the next meeting, on 2.2 .
November, I presented the Information I had been able to obtain and my preliminary
conclusions·, At its meeting on 13 December.2005 the committee:
• .appointed me Rapporteur
• decided to ask the European Commission for Democracy. through Law (Venice
Commission) to prepare a legal opinion assessing the legality of secret detention in
the light of Council of Europe member states' international obligations, in particular
the European Convention on Human Rights and the European Convention for the
Prevention of Torture, and expressed the wish that this opinion be submitted as soon.
as possIble;
• Instructed Its Chair to submit to the Bureau a request for an urgent procedure debate
on the allegations of secret detention in Council of Europe memb!,!r states at the
January 2006 part-session of the Assembly;
• extended the Rapportel,lr's mandate to visit the headquarters of the European
institutions and make fact-finding visits to certain Council of Europe member states if
he deemed it necessary;
• was informed by the Deputy Secretary General of the initiatives taken by the.
Secretary Generalln accordance with Article 52 of the ECHR.
16. . On behalf o(the Committee on legal Affairs and Human Rights, I submitted a request
to the Bureau for a debate under urgent procedure on the allegations of secret detention in
Council of Europe member states at the January 2006 part~session of the Assembly. I was
informed that, as the deadline for States' replies under the procedure set in motion under
Article 52 ECHR was not until 21 February, the Assembly Bureau had decided, at its meeting
on 9 January 2006, to suggest holding a current affairs debate, Ie a debate without a report, .
which nevertheless leaves me free to submit this information memorandum to the Committee
on Legal Affairs and Human Rights.

B.

Steps take~ to date

17.
FollOWing the Committee's meeting on 7 November, on 14 November 2005 requests
for information were sent to the Polish and Romanian delegations to the Council of Europe
Parliamentary Assembly and to the United States Permanent Observer to the Council of
Europe.
18.
On 21 November 2005, the Secretary General of the Council of Europe sent a request
for Information to the States Parties to the European Convention on Human Rights. in
accordance with the procedure provided for in Article 52, asking them to reply by
2.1 February 2006 (see AppendiX IV).
19.
Letters were sent to the ~U Satellite Centre and Eurocontrol on 29 November 2005,
asking them to provide technical assistance with the preparation of the prospective report by
forwarding certain information concerning flights and satellite pictures of certain sites, taken
on different dates.

4

see document AS/Jur (2005) 52 rev 2, Information Memorandum presented by the Rapporteur.

See also the statement on aJleged secret detention centres in Council of Europe member States

adopted by the Assembly's Standing Committee at its meeting in Bucharest on 25 November 2005
(Synopsis No.2005/130).

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20.
The Venice Commission," for its part, was informed at its meeting on
15 December 2005 of the request from the Committee on Legal Affairs and Human Rights for
an opinion. It decided to instruct several of its members to start work on the matter (see
Appendix III). "

21.

In a letter dated 10 January 2006, the Secretary of the Venice Commission Informed
me that work was already under way. The Venice Commission has instructed a working group
comprising six eminent experts to draft an opinion for approval at its next plenary session, on
17 and 18 March 2006.
"
22.
A questionnaire was forwarded to all the "leaders of natiqnal delegations to the
Pariiamentary Assembly on "19 December 2005 so that the parliamentarians would put
questions to their governments within their own parliaments, making use of their twofold
mandate as I)atlonal parliamentarians and members of the Assembly (see Appendix II).
23.
On 5 January 2006, I met the prosecutor responsible for the Abu Omar case, Mr
Ar'mando Spataro, in Milan. He told me about one of the most comprehensive Judicial
inquiries so far carried out in Europe into a kidnapping carried out as part of an "extraordinary
rendition" operation by the services of a foreign CC?untry.
'
24.
I also had various meetings with NGO representatives and investigative Joumalists
specialising if.l terrorism.
C.

Criminal Investigations and other reactions

a.

Council of Europe member countries

;.

" --

-~

Overview

In two countries (Italy and Germany) judicial investigations have begun into
"abduction" of persons subsequently transported to Guantanamo, Afghanistan and other
detention centres by means ot aircraft belonging to entities with hidden direct or indirect lin!<s
to the CIA. The Italian prosecution service has even issued arrest warrants against CIA
agents a,fter the violent abduction of a Muslim, Abu Omar, In a Milan street in February'2003.
The German judicial authorities are taking part in the investigation and have themselves
begun investigating the case of a German citizen of Lebanese origin, Khaled al Masri. After
being arrested by mistake in Macedonia he was reportedly taken to Kabul for interrogationS.
Lastly, a Spanish Judge Is enquiring Into whether the CIA used Son Sant Joan airport in
Majorca as a base for transport of Muslim suspects. as announced by the Spanish minister of
internal affairs, Jose Antonio AI~nso, on 15 November 2005. The same aircraft as transported
Abu Omar landed at least three times in Spain (and in other European countries).
25.

26.
The Polish Government ordered an enquiry into the alleged existence in Poland of
secret CIA detention centres. The findings were to have been made known in December, but
so far none have been published (although a parliamentary committee had been ll)formed of
lhese findings). On 21 December 2005, J wrote to the head of the Polish delegation to the
Parfiamentary Assembly, Mr Iwinski, asking him to let me have the findings as soon as
possible.

s

A reporter working for the German television channel ZDF, Mr Brase, has passed onto me
a certain amount of information and contact details of people involved locally, which I shall follow
up in the next stages of my own enquiry"

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,.-" "-

27.
On 6 December .2005, at the instigation of the opposition, the Romanian Parlial)1ent
set iJp a commission to investigate the alleged existence of a secret detention centre on
Romanian territory which the American secret serVices were said to have used for torture. A
non-govemmental human rights organisation (OADO - Organiza~a Pentru Apararea
Drepturilor Omului) sent specialists to all the places specifically mentioned in recent months
as possible sites of secret detention centres. Their conclusions do not seem to provide any
evidence of such centres. Traces of destroyed temporary structures are visible near Babadag
training camp, Fetelitl airbase and Mihail Kogalniceanu army base, but seemingly they were
used In connection with intemational military exercises. in the 2003-2005 period; American
military personnel in transit were apparently accommodated there in May and June 2003.
OADO stresses the absence of any basis for the allegations. On 20 January 2006 the head of
the Romanian delegation to the Assemoly wrote to me forwarding his delegation's replies to
my 19 December 2005 questionnaire to heads of PACE delegations. The replies give general
information about agreements between the United States and Rom~ia on secret-service cooperation and NATO agreements. The bilateral agreement signed on 6 December 2005 (and
not yet ratified) provides In its preamble that the parties are to respect national sovereignty,
the United Nations Charler, human rights and their International obligations. The replies
stress that no official Romanian authority was aware of any secret detention centre on
Romanian territory. Nor have the Romanian authorities received any request for overflight of
Romanian territory or use of Romanian airports by aircraft suspected of belonging to the CIA.
They also state that military airfields have not been used by civil aircraft. The government has
not asked for any further explanations, saying that it is sa"sfied with those given by
Condoleezza Rice.
.
28.
In the United Kingdom the NGO Liberty threatened the government with legal actiol)
for facilltatlng and colluding in use of torture If there was not an immediate enquiry into the
very large numl;>er of flights and overijights by CIA-ehartered planes and the possible use of
certain United Kingdom airports. In reply to a parliamentary question on the subject, the
United Kingdom foreign affairs minister, Jack Straw, stated in December 2005 that a thorough
search of the relevant logs had not found any CIA request to use British airports in connection
with transport of suspects. According to at'! Internal memorandum dated December 2005,
attributed to the private ottice of the foreign affairs minister and published by the New
Statesman on 19 January 2006. the British Government intends to take the following
approach to the problem: extraordinary renditions are usually illegal, but complete confidence
should be placed in the assurances provided by Ms Condoleezza Rise during her trip to
Europe. The British press made a point of accusing the Government of duplicity. It remains to
be seen whether the memorandum does indeed reflect the Government's official attitude. On
20 January I also received, from Mr Angus Robertson MP, a detailed report of numerous·
suspect movements of aircraft transiting through Scotland.
29.
Further to questions to the govemment in the Bundestag from the leltwing and Liberal
groups, the German Government asked the American authorities for information about CIA
use, or not, of Frankfurt and Ramstein airports. In answer to most of the questions from the
two groups, the government stated that it could provide replies only to the committee specially
authorised to oversee the 'secret services. Asked whether the government or the German
.secret services knew of the existence of any secret detention centres on German or
European territory. the government categorically denied any knOWledge of such centres on
national territory; with regard. to the remainder of the question, it referred to its objection of
principle ~hat it was the special committee which had jurisdiction in the matter. In answer to a ]
question from the leftwing group, the German air traffic safety office provided a detailed list of
flights by two aircraft apparently chartered by the CIA which had landed at airports in
Germany in 2002 and 2003. 137 and 146 times respectively and mainly al Frankfurt. Berlin
and the US Ramstein base. However, the office was unable to provide the members of
parliament with information as to the identity of any passengers. On 17 January 2006 the
German members of parliament decided to set up a committee of enquiry to report back as
soon as possible on the role of the intelligence services (BND) in Baghdad and on cer1ain
aspects of anti-terrorist action (inclUding allegations of flights and overflights of German
territory by CIA-chartered aircraft). Discussions are still under way as there seem to be

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misgivings in some political circles about setting up a committee that might undermine the
operational capacity of the BND.
.

.

30.
The Armenian parliamentary delegation forwarded to the head of internal security
selVices the questionnaire which was sent on 19 December 2005 to heads Of national
delegations to the Partiame~tary Assembly. The replies received shed no further light
31.
In response to parliamentary questions, the Belgian Govemment has launched an
enquiry into flights and overwfl!ghts by CIA-chartered aircraft. So far, no stopover a~ a military
airport has been discovered.
'
32.
With regard to Bosnia and HerzegOVina, their American Jawye~ has sent me a
detailed acCount of the case of six Bosnians abducted by American agents on Bosnian soil
and taken to GuantAnamo Bay, despite a Bosnia and Herzegovina Federal Supreme Court
jiJdgment ordering their release after police investigation had failed to uncover the slightest
evidence against them. I shall be following developments in the case as part of my further
investigations.
33.
In a letter dated 19 January 2006, the leader of the Cypriot delegation to the
Assembly forwarded to me his governmenrs replies to the questionnaire I sent to the leaders
of national delegations to the Assembly on 19 December 2005. The replies mention several
landings in Cypriot airports, all of a technical nature (and therefore not subject to
authorisation), of aircraft on the list forwarded to national delegations. The Cypriot
Government states that it has no knowledge of secret detention centres on the part of national
, territory that Is actually controlled by the Republic of Cyprus. It stresses that it is in its
interests that full light should be shed on the matter and that il intends to use diplomatic
channels to obtain explanations from the American authoritie~.

•- - - 1

34. . The Danish Govemment has asked the American authorities for explanations about
CIAwChartered flights for a11~ged transport of prisoners over Danish territory.
35.
The Finnish security services have reportedly asked the CIA for information about
any passengers aboard a cargo plane which made a stop at Helsinki in 2003.

36.
The French fore1gn affairs ministry has stated that it is checking with the civil aviation
authorities on two flights which made stops in French territory and had apparently been
chartered bythe.CIA.
37.
In reply to a question from a European Parliament membe" Greece is looking into the
alleged existence of a secret prison at Souda naval base in Crete where persons suspected
of involvement in the attacks on the London underground were aflegedly subjected to violent.
interrogation by British agents.
3~.
The head of the Irish delegation to the Parliamentary Assembly informed me of Ihe
many questions to the government in the Irish Parliament, and of the replies received. In
substance, the government expressed total condemnation of the practice Of ~extraordinary
renditions" and stated that it had never authorised any overflights of Irish territory by chartered
aircraft for that purpose.

6

Stephen H. Oleskey, of the law company WilmerHale.'

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39.
The Norwegian Government apparently asked the American embassy for information
about a plane whiclJlanded at Oslo on 20 July 2005 and was allegedly used by the American
authorities for transport of. suspected extremists.
The Swedish Government has Instructed the relevant department and the civil
aviation authority to look into flights to and from Swedish airports by United-States-reglstered
aircraft since 2002.
'

40.

Ii.

The more detailed cases of Italy and Switzerland

•

"aly

41.
At midday' on 17 June 2003 an Egyptian citizen. Hassam Osama Mustafa Nasr.
known as
Omar. was abducted in the middle of Milan. Thanks to an outstanding' and
tenacious investigation by the Milan judiciary and the DIGO$ police services. Abu Omat's is
undoubtedly the best known and best documented case of "extraordinary renditlon o1•

Abu

42.
Via the military airbases at Aviano (Italy) and Ramsteln (Germany) Abu Omar was
flown to Egypt. where he was tortured before being released and re-arrested. To my
knowledge no proceedings were brought against Ornar In Egypt.
43.
The Italian judicial investigation established. beyond all reasonable doubt. that the
operation was carried out by the CIA (Which has not issued any denials). The Italian
Investigators likewise established that the presumed leader of the abduction operation - who
had worked as the American consul in Milan - was In Egypt for two weeks immediately after
Omar was handed over to the Egyptian ·authorities. It may safely be inferred that he took part,
in one way or another. in Omar's interrogation.
.
44.

The proceedings instituted in Milan are concerned

wi~h

25 American agents. against

.22 of whom tlie Italian authorities have issued arrest warrants.

45.

Abu Ornar was

~

political refugee: Suspected of Islamic militancy. he had been under

surveillance by the Milan police and Judicial authorities. As a result of the 'stlfveillance

operation, the Italian police were probably on the point of uncovering an activist network
operating in northern Italy. Abu Omar's abduction, as the Milan Judicial authorities expressly
point' out. sabotaged the Itatian surveillance operation and thereby dealt a blow to anti, terrorist action.
Is it conceivable or possible that an operation of that kind, with- deployment of
resources on that scale in a friendly country that was an ally (being a member of the coalition
in Iraq), was carried out without the national authorities .. or at least Italian opposite numbers
- being informed? The Italian Government has denied having been informed. The presence
on Italian territory of at least 25 foreign agents who abducted someone who had been granted
political asylum and was already under police surveillance might have been expected. if not to
create a diplomatic incident, then at least to trigger a sharp response from the national
authorities. As far as I know, there was no such response. A further interesting point is that
the Italian justice minister has so far not forwarded to the American authorities the Milan
judicial authorities' requests for assistance and extradition.
.
46.

7

I have met the prosecutor who. headed the investigation, Armando Spataro, and was able

to obtain as full information as confidentiality and procedural requirements permitted. The Abu
Omar case is likewise described in the book, already referred to, by the Corriere della Sera
journalist Guido Olimpio, Operazione Hotel California, Feltrinel1i, Oclober 2005.

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47.
Abu Omar's abduction is a perfect illustration of Kextraordinary rendition". It is a clear
indication that the method exists, together with complex logistic support in various parts of
Europe and considerable deployment of personnel. It also plants doubts and raises the
question of Involvement of national authorities at one or other level.

;

Switzerland

46.

The methods used to counter the terl'9rist threat are also under debate in Switzerland.

49.

In May 2002 an American 'citizen, Jose Padilla, was placed under close surveillance

by the Swiss federal police and US agents when he flew into Zurich frofTl Pakistan. Padilla
was suspected of wanting to introduce a "dirty" bomb into the United States and explode it.
Appar~ntly

-I

the Swiss pollce even questioned. him before he flew on to Chicago, where he was
arrested. Since then Padilla has been in detention without any detailed charges being brought
against him and is considered an "enemy combatant". It was only quite recently that he was
handed over to the civil justice authorities to avoid the Supreme Court's ordering his release.
Visiting Switzerland in June 2002, the United States justice minister, John Ashcroft, warmly
congratulated the Swiss authorities on the valuable part they had played in Padilla's arrest.
However. the case has sparked controversy in SWitzerland, to such an extent that a
parliamentary committee has begun an enquiry, for it would seem that the police co-operated
closely ~ith the American. services without notifying the competent judge, or at any tate
informed him after the event, when Padilla had already been arrested in the United States. If
notification had been made in time - as procedure requires - Padilla would most likely have
been arrested and handed over to the American authorities in accordance with the procedure
laid down and with the safeguards which operate in cases of judicial assistance and
extradition (Which are not applied 10 so-called "enemy combatants"). My request to consult the
parliamentary committee's report was refused on the justice ministry's advice, on the ground
that the file contained material "concerning third parties and potentially harmful to relations
with another country".

I

50.
In June 2005 the Swiss press, in·connection with what it called the "Guantanamo
Express", mentioned several aircraft which had temporarily landed in ·Switzerland and were
suspected of carrying prisoners, On a visit to the United States in late June 2005, the Swiss
foreign affairs minister asked his opposite number for explanations. To date, and despite a
repeat request to the United States ambassador in Bern in December, no reply has been
forthcoming from the American authorities.
51.
The Egyptian Abu Omar, abducted by the CIA in Milan on 17 February 2003 (see the
above section on Italy), was flown from the italian base at Aviano to Ramstein in Germany,
and then on to Cairo. The Italian judicial authorities have identified the aircraft used. The data,
when compared with data held by Swiss air traffic control, indicate that he was flown through
Swiss air space, which has prompted the federal prosecution authorities to institute an
enquiry (the prosecution authorities at Zweibriicken, within whose jurisdiction the Ramstein
base is located, have done I!kewise}.·
.
52.
On 8 January the Swiss newspaper Sonntagsblick stated that, during the night of 11
to 12 November 2005; the Swiss intelligence services intercepted a fax from the Egyptian
European affairs ministry to the Egyptian embassy in London referring to the exIstence of
secret detention centres in Romania, BUlgaria. Ukraine. Macedonia and Kosovo. The
newspaper published a copy of a Swiss departmental memorandum (in French) dated 14
November 2005 summarising the content of the original message intercepted (probably in
Arabic). It was from the newspaper article that I discovered the content of the intercepted fax.
Interception of the Egyptian fax has not been denied by the parties concerned. On the
contrar.y the SWISS authorities are investigating the breach of official" secrecy.

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.53.
The foreign affairs minister stated in an interview published on 15 January 2006 that
the Swi;iS authorities would co-operate with me "as far as I?ossible".

.

'.
B.

Debate In North America

54.
In the' United States, the authorities' attitude in the war on terrorism and the
controversial methods used by the CIA in that connection have also aroused controversy.
55. . The CIA action programme set up after 11 September 2001 and know'n as the "GST
programme", gives the CIA greatly enhanced powers (apparently comparable to those which
existed during the cold war). It allows the CIA to arrest suspects with the help of foreign
.internal security services, hold them captive abroad, employ interrogation techniques (some
of which are very widely regarded as possibly contravening the Unlted States' International
undl'lrtaklngs regarding prohibition of torture) and fly prisoners between countriess.
56.
The facts as reported by several official sources point to higly controversial practices
on the part of the American security services.
57.
Several prominent figures have openly condemned the praotices in question. One can
but welcome the perseverance shown by Senator John McCain, who was himself a torture

.. )

victim In Vietnam and who was responsible' for an amendment to the 2006. defence
expenditure bill expressly prohibiting cruel, inhuman and degrading. treatment of foreign
prisoners, whether in CIA hands, in the United States or abroad. The amendment is extremely
significant In the context of my report, implying that such treatment was not hitherto' prohibited
by American law in the circumstances referred to. It also strikes me as fairly revealing that
Vice-President Dick Cheney fought, unsuccessfully, to have the McCain amendment not
apply to the CIA. However, we cannot be altogether confident of the effects the amendment
will have - the press reports that President Bush seems to reserve the right to disregard the
amendment in certain circumstances9 .
58.
Similarly, extension of .the Patriot Act was agreed to only after fierce debate and
resistance in the Senate, and only for six months (during which period it is hoped to make its
content more flexible). The fact Is that a large number of senators regard the provisions of the
Act, which was adopted in the wake of 11 September 2001 and Is concerned, in particular,
wilh empowering the FBI to secretly obtain information on telecommunications, as placing
undue restrictions on citizens' rights and freedoms.
The uproar in the United States over telephone taps which President Bush has
authorised, apparently without any regal basis whatever, can only reinforce that sentiment.
The revelation by The New York TImes has further fuelled present controversy.

59.

60.
Amnesty International (AI) expressed serious concern about the attitude adopted by
the Canadian authorities. As suspect flights had been report~d over the country, AI asked the
authorities on 22 November 2005 to look into the matter. In an open letter·to the Minister of
Public Safety and Emergency Preparedness dated 18 January 2006, AI observes that there
has still been no serious investigation into these allegations. We have no doubt that Canada,
a permanent observer to the Assembly, will shed ftilllight.on the allegations.

8

Dana Priest, "Covert CIA Program Withstands New Furor - Anti-Terror Efforts Continue to
Grow", The Washington Post, 30 December 2005.
9

Charlie Savage, "Bush could bypass new torture ban - Waiver right is reserved", The

Boston Globe. 4 January 2006.

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AS/Jur (2006) 03

Reminder: anti-terrorist action must respect human rights

. 61.
The Parliamentary Assembly has made its position very clear. which is that it shares
"the United States' determination to combat international terrorism and fully endorses the
importance of detecting and preventing terrorist crimes, prosecuting and punishing terrorists
and protecting human Iives"IO.
..,
.

62.
Obviously that position Is the only possible one and, as far as action on terrorism is
concerned, requires close international co-operatlon, which. however, must be organised on
the basis of clear, precise agreements and in compliance with agencies' powers and
responsibilities.
.

.

63.
"Rendition" of prisoners must be carried out in accordance with legal procedure, so
that the prisoner is afforded all the legal guarantees to which he or she is entitled, including a
fair trial within a reasonable time. In no case should it be made possible for a person to be
retumed or transferred "in reliance on 'diplomatic assurances' from countries known to
engage In the systematic practice of torture and ... unless the absence of a risk of illtreatment is firmly established"11.
64.
It cannot be overemphasised that nothing and no one can justify waiving the principles
of the rule of Jaw and respect for human rights and that. torture, in addition to being an
unreliable way of obtaining information, is in any case absolutely.prohibited.
65.
As the Assembly has stated, ~some human rights (such as the right to be protected
from torture or inhuman treatment) are absolute. and should never be interfered with.by state
authorities, including internal security servlces."12 Secret services' role, however
fundamentally important to counter·terrorist action, clearly can never place such services
above the law.
-

\

~

E.

Preliminary analysis of the information already obtained

a.

·Awareness of Council of Europe member states?

66.
"Rendition" affecting Europe seems to have conoemed more than a hundred persons
in recent years13 • Hundreds of CIA-ehartered flights have passed through numerous
European countries14. It is highly unlikely that European governments, or at least their
inteltigence services, were unaware. And a number of revelations have already been
published by the press. especially in America. over the past few years. It is, to say the least.
curious that media interest, especially in Europe. SUddenly surged atter the article in The
Washington Post in early November 2005.

10

Resolution 1433(2005) on the lawfulness of detentions by the United States in
Guantanam 0 Bay, § 1,

'1

Idem. §8.x.
Recommendation 1402(1999) on control of internal security services in Council of Europe
~ber states, §4.
.
~ichaei Scheuer, writing in Die Zeit of 29 December 2005, referred to "hundreds, but not
thousandsft of persons held by the United States in the context of ftrendition",
14 According to a list obtained from Germany's Office for Air Traffic Safely by the left Party group
in Germany, two aircraft linked to the CIA had landed at airports within Germany in 2002 and
2003, 137 and 146 times respectively. I dare not extrapolate the number of potentially s()spect
flights In all Council of Europe member states during the period under examination by the 40
aircraft allegedly linked to the CIA!
12

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12

67.
The stqtements made by Secretary of State, Condoleezza Rice, during and before her
European visit of December 2005, and by her predecessor, Colin Powell, who said that the
US had always respected the national sovereignty of its allies, are taken by some as both a
reprimand and a warning: "stop being hypocriticaln , and "do you really want us to say what
happened?".
-

-68.

In the case of Abu Omar It was obvious that the CIAacted without informing the Italian
judiclal and police authorities. The Milan public prosecutors expllcltly state that the action
taken by. the American service, which they consider constituted a criminal offence. prevented
them from competing investigations which they were conducting against Omar and which was
on the verge of identifying a network of activists considered potentially dangerous. The
ltallans' meticulous and highly professional work had thus been undone by the unexpected
intervention by CIA agents who, by abducting Abu Omar, had sabotaged a major anti-terrorist
operation. This "rendition" is. a glaring i114stration of the fact that such actions, which infringe
the principles of the rule of law, are not only unacceptable from the legal and ethical point of
view but also ineffective, or indeed damaging to the fight against terrorism. This lack of c0operation with and confidence in. the authorities officially mandated to fight crime is bound to
have very serious consequences, challenging the very functioning of the law-based State and
its democratic foundation. Similarly, we might add that the American authorities in Ramstein
are refusing to co-operate with the German prosecutor responsible for the German strand of
the Abu Omar case, on Washington's orders. It is difficult to believe that such an approach to
relations between authorities in different cOuntries can prOVide any valid basis for genuine cooperation among States endeavouring together to combat the worst threats facing us in
modem times.
b.

Extraordinary rendition and torture - a link known and accepted?

Over the last few months, a number of former officials of the American intelligence
services, some of whom had held responsible positions, have given interviews and provided
many details of the resources used against actual and suspected terrorists. These
statements, which have in fact been corroborated by indiscretions from officials still serving.
clearly confirm that the current US Administration seems to start from the principle that the
principles of the rule of law and human rights are incompatible with efficient action against
. terro~sm. Even the laws of war, especially the Geneva Conventions. are not accepted or
applied. The relocation of prison camps to Guantanamo and elsewhere indicates that even
American legal standards ~re seen as obstacles by the US Administration. "Extraordinary
rendilion n and secret detention facilitate the use of degrading treatment and torture. It is even
the stated objective of such practices, as the following quotations would appear to confirm.
69.

•

70.
Mr Michael Scheuer, one of the architects of the "rendition" system further developed
dUring the Presidency and· with the agreement of Bill Clinton, formerly headed the CIA's Bin
Laden unit. He stated in an interview with Die Zeif5 that the CIA was within it~ rights to break
all laws except American law. He expressed doubt as 10 the existence of secret prisons in
eastern Europe. given the fact that the US had, in his opinion, sufficient capacity in other
places, particularly in Iraq and Cuba.

71.
In another interview, given to the Sunday Herald in October 2005, Mr Scheuer is
reported to have said, on the subject of his knowledge of the use of torture, that he had no
doubt about this and that the White House was more Wilting than the CIA itself to ignore tt'le
legal details ("to turn a blind eye to the regal niceties"). The CIA was aware that it would
eventually have to take the blame ("The Agency always knew it would be left holding the baby
for this oneil) 16.

Die Zeit, 29 December 2005.
Neil Mackay, "These two men are experts on rendition: one invented It. the other has seen its
full
horrors",
Sunday Herald (Scotland),
16
October
2005,
available
at
http://www.sundayherald.com/52305.
15

1B

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AS/Jur (2006) 03

72.
As early as March 2005, in a CBS interview, Mr Scheuer 'had admitted knowing that
suspects were tortured in Egypt, adding that it was "very convenient" finding "someone else to
,
do your dirty work,,17.
Mr Robert Baar, a fonner CIA agent interviewed by British journalist Stephen Grey, is
reported to have said: "If you want a serious ·interrogation, you send a prisoner to Jordan; If
you want them to be tortured, you send them to S¥ria. If you want someone to disappear never to see them a~ain - you send them to Egypt."' .

73.

74.
Mr Vincent Cannistraro, former head of counter-espionage in the CIA is reported to
,have said that a Guantanamo detainee suspected of belonging to AI-Oaeda and who was
refusing to co-operate provided better information after being "rendered" to Egypt· "They
.promptly tore his fingemails out and he started to tallthings"'9. Mr Cannlstraro also reportedly
said that Egyptian prisons were full of men without finger and toenails. "Irs crude, but highly
effective, a1thou~ we could never condone it publicly. The Egyptians and Jordanians are not
that squeamish' . Lastly, he also said that only someone "deaf, dumb and blind" could
believe that the Syrians did not used tortura, deSpite their claims to the contrary2'.

75.
Some officials who have remained nameless have,given even more direct evidence. A
CIA member directJy involved In "renditions", for instance, was quoted by The Washington
Post back in December 2002 as saying 'We don't kick the [expletive) out of them. We send
them to other countries so they can kick the [expletivel out of them H22•
76.
"If you don't violate someone's human rights some of the time, you probably aren't
doing your job": this was allegedly said by one official who had supervised the capture and
.
transfer of alf~ged terrorlsts23 •

n.

Another official directly involved in "renditions" said that he knew the persons
concerned would probably be tortured ("I .•. do it with my eyes ,open")24.

17.

Ibid.
Stephen Grey, "America's Gulag", The New

Statesman, 17 May 2004, available at
http://www.newstatesman.com/2Q04051700 16.
.
H. Knut Royce, "Mixed Reviews from Experts. Critics: Make Case on Deceit, Not Terror", Newsday,
6 February 2 0 0 3 . . '
.
20 Ian Bruce, "Middleman Reveals AI Qaeda Secrets", The Herald (Scotland), 17 October 2002.
21 Shannon McCaffrey, "Canadian Sent to Syrian Prison Disputes U.S. Claims against Torture",
Knight-Ridder. 1 August 2004.
22 Dana Priest and Barton Gellman. "U.S. Decries Abuse but Defends Interrogations", The
18

Washington Post, 26 December 2002, available at hUp:l/www.washingtonposLcom/ac2lwpdyn/A37943 • 2002Dec25?language=printer; also see Doc. 10497, report of the Committee on
legal Affairs and Human Rights on the lawfulness of detentions by the United States in

GuantEmamo Bay. rapporteur Kevin McNamara.
23

24

Ibid.
Ibid.

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r-',

,, .

14

78.
Some officials of President Bush's adminiStration ·have said that the CIA in practice
uses a narrow definition of what amounts to "knowing" that a suspect has been tortured: "If
we're not there in the room, who is to say?"2S.
.

79.
Another case of rendition concerns a so-called Muslim militant in Canada, called Arar.
Some American officials speaking on condition of anonymity are reported to have said that
there was strong' evidence that Mr. Arar had long been associated with suspected Islamist
militants in Canada. They reported that he had confessed under torture in Syria that he had
received terrorist training in Afghanistan, and had given the names of his instructors and other
details26• .
.
80.
Others reportedly told Time that no American had been in the room in which the
Syrians interrogated Mr lam mar. American officials in Damascus gave written questions to
the Syrians, who passed back Zammar's answers. State Department officials appreciated this
arrangement, which kept the American government out of any torture that the Syrians might
use against him. Some State Department officials suspected that he had indeed been
tortureCf'.
. '
.

1"

.

an interview with Dana Priest (The Washington Pos!) published in March 2005,
another CIA official involved in -renditions" described other countries' "assurances" as "a
farce.@, and admitted that it was widely understood that interrogation practices that would be
illegal in the United States were being used29 • In the same interview, he said that "They say
thev are not abusing them, and that satisfies the legal requirement, but we all know they
81.

do~o.

It seems, furthermore, that the CIA's partners quite clearly understand the worse than
ambiguous attitude it takes to the use of torture; one Arab diplomat from a country actively
involved in anti-terror operations and sharing intelligence with the CIA reportedly said that it
was unrealistic to believe that the CIA really wanted to verify the assurances given: "It would
be stupid to keep track of them because then you would know what's going on [...] It's really
more like 'Don't ask, don't leU:,.31.
82.

,

"

83..
In this context, it can be noted that in 'May 2005 the U.N. Committee against Torture
held that the .1984 U.N. Convention against Torture had been violated by Sweden with
respect to the removal, to Egypt, of Ahmed Agiza and Mohammed al-Zari, back in December
2001 (see Agazi v. Sweden, CAT/C/341D/23312003 of 24 May 2005).

84.
Another case concerning a certain Mr Mahdouh Habib, Australian citizen arrested 1n
Pakistan in OCtober 2002, is prompting debate in Australia, highlighting the legal difficulties
arising out of the use of torture: "After promising for more than three years that it would
charge Mr. Habib, the Bush administration told the Australians in January that it would not
prosecute him because the C.I.A. did not want the evidence about Mr. Habib being taken 10
Egypt, and nis allegations of torture, raised in court", Australian officials reportedly said 32.

251bid.
26 Clifford Krauss, "Qaeda Pawn, U.S. Call.s Him; Victim, He Calls Himselr, New York Times, 18
November 2003.
27 Mitch Frank, "Help from an Unlikely Ally", Time, 1 July 2002.
28 Dana Priest, "CIA's Assurances on Transferred Suspects Doubted", The Washington Post, 17
March 2005, available at hltpJfwww.washingtonpost.com/wp-dynlartlcles/A42072-2005Mar16.html
29 Ibid.
.
30 Ibid.
31 Ibid.
32 Raymond Bonner, "Australians Uneasy About U.S. detainee case", New York Times, 10 April
2005,

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'.

AS/Jur (2006) 03

85.
Drawh19 on all this concordant information and evidence we can say that the,re is a
great deal of coherent, convergent evidence pointing to the existence of a system of
"relocation" or "outsourcing" of torture. Acts of torture, or severe violations of detainees'
dignity through the administration of inhuman or degrading treatment, are carried out outside
national territory and beyond the: authority of the national intelligence services. Does this
mean that torture is so easy.to use in this day and age? Is it enough for one's own secret
services not to be physically presem at the place of interrogation and to pretend to have no
official knowledge of this practice to state that the law is not being broken? In this context, the
statements made by Mr Schauble, Germany's new Minister for the Interlor, appear'at the very
least highly debatable, if not alarming. He' seems to consider that the use of information
obtained by dubious means is acce~able. provided that the Gennan services were not .
perpetrating acts of torture themselves .
86.
Old such pointers to the existence of "networked" torture really escape the notice of
Council of Europe member states? What. is, therefore, the share of responsibility of member
states when their airport facilities' are used to transport detainees to places where lhey will be
subjected to torture, ie places - dare I say - of public notoriety ? Is there true co-operation
between European states and ·the Unlled States, or do the former display a respectable kind
of duplicity?
.
87.
These assumptions are obviously very serious. but all these questions require plain,
honest answers. The opinion to be delivered by the Venice Commission in March 2006 will
give us a clearer view of the legal consequences of these practices, including member States'
responsibility in the Iighl of the international treaties and the rules of general international law
to which they are subject.
88.
With specific reference to the' awareness among member states' authorities of torture
committed by their "partners" in the context of the fight against terrorism, we shall hear a
personal account at our Committee's meeting of 24 January 2006 from Mr Craig Murray,
former British Ambassador to Uzbekistan. The documents that he has already forwarded to
me, and which led me to invite him to give his evidence, appear to be damning for the UK
authorities, which seem to have knOWingly continued to make use of infonnation obtained
·under torture and supplied by the Uzbek intelligence. services, thereby encouraging lhe
practice of torture. Mr Murray was unable to persuade his authorities to cease doing so, and
therefore resigned.34 ,

Spiegel online. 16 December 2005; see also the opposite stance adopted by the President of
the Constitutional Court, Mr Papier. in the Hande/sblatt. 26 December 2005.
34 See in this context the judgment of the House of Lords of 8 December 2005 confirming that
information obtained under torture cannot be used in evidence before the courts.

33

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,,-.

d.

J

16

Kosovo and Chechnya

91,
Where Kosovo is concemed, the KFOR detention centre (Camp Bondsteel) is not
"secret" in so far as its existence has been well-known for a long time now. Back in 2002 the
Commissioner for Human Rights, Mr Gil-Robles, reported on his findings In situ. At the
hearing with our committee on 13 December 2005 the Commissioner for Human Rights
repeated that the Kfor detention centre had "many parallels with Guantanamo: prisoners
arrested without reco(Jrse to any kind of judicial procedure or legal representation", Nor is
Camp Bondsteel open for inspection by the Council of Europe'S Committee for the Prevention
of TorttJre (Cpn, which has the rlght to inspect all places of detention in States Parties to the
European Convention for the Prevention of Torture (incl~dlng Serbia and Montenegro), and
which has not hitherto obtained authorisation to visit. Negotiations are in progress with KFOR.

92.

Where Chechnya is concemed, Mr Bindig's report, which is to be discussed in the
plenary sitting of 25 January, reports on numerous cases of "enforced disappearances· and
torture, as 'well as the existence of secret places of detention, all strongly criticised by the
CPT In two public statem~nts to which I referred in my December 2005 introductory
memorandum. and which are still waiting to be given their due importance by the Committee
of Ministers of the Council of Europe.

F.

LookIng ahead to the continuIng Investigation

93.
The replies from Eurocontrol and the European Union Satellite Centre would appear
·to be imminent, as the Romanian authorities have now agreed supply satellite photographs of
places located on their territory. We will not be able to pronounc~ on the Importance and the
scope of this information until a later juncture,

\

J

94.
The tactual elements secured to date, thanks Inter alia to the action of the Council of
Europe, have induced the European Parliament to set up a temporary special committee·
responsible for investigating any possible ~nlawful action taken in the context of the fight
against terrorism in the European Union member or applicant States. This decision
underscores the seriousness of the evidence secured so far. It is felicitous that other
international institutions are also dealing with these issues, and the Council of Europe and its
Rapporteur will obviously fully co-operate with them.
95.
We should also mention the remarkable work being done by various NGOs and
numerous investigatory journalists. Such journalists symbolise .the commitment of a
community which is determined to ascertain the truth and will not allow the fight against,
terrorism, which is absolutely vital, to justify using unspeakable methods, thereby raising the
threat of a laps~ into barbarity. Consequently, the officials who are well aware of the fact and
who in all conscience cannot accept these methods, provide a major channel for ascertaining
the truth. These officials face two contradictory imperatives, namely officlal secrecy and the
ethical dUty not to collude in acts infringing human dignity. In this context, whistle-blowing is
the expression of civil commitment and courage, rather than an act of denunciation or
betrayal.
96.
The replies which the Council of Europe's member States must supply under the
procedure set out in Article 52 of the European Convention on Human Rights must reach the
Secretary General by 21 February 2006. These replies will provide additional material for
assessing thE; situation.
, 97,
Similarly, the legal opinion requested from the Venice Commission will be very
important for the conclusions of the final report, particularly in terms of the Council of Europe
member States' obligations under the European Convention on Human Rights in order to
ensure that their territory, and even their airspace, are not misused, even by friendly and
allied third states, tor the purposes of human rights violations. National procedures for
parliamentary supervision of intelligence services will have to be analysed and, where
necessary, improved, in order to ensure that abuse cannol be perpetrated on the pretext of
the confidentiality of current procedures. Parliamentarians must also analyse the repeated

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AS/Jllr (2006) 03

recourse by executives authorities to the concepts of VState secrecy" and,Vhigher interests" in
withholding information.

.I

98.
My experience as the Assembly's rapporteur on this particularly sensitive and
substantial subject also makes me wonder about the resources at the Parliamentary
Assembly's disposal for conducting this kind of inquiry. When national procedures cannot
appropriately deal with investigations Into possible human rights violations which are more
than individual cases (for which the European Court of Human Rights has Jurisdiction) and
which transcend borders, we are justified in wondering whether the current il'1stnJments are
~till equal to the task. Instead of one single member as Rappo~eur with the support of the
normal resources of the Committee's secretariat, already ovelWhelmed by, other current
reports, we' might seriously consider whether setting up a true committee of Inquiry, assisted
by experts and holding more extensive Investigatory powers, might not be a better solution
and more able to deal with these new important challenges.

99.
As we have said, no cogent evidence has yet emerged on the existence in Europe of
detention camps like the one at Guantanamo Bay. On the other hand, it has been proved
(and in fact never denied), that individuals have been abducted, deprived of their liberty and
all rights, and transported to different destinations In 'Europe, to be handed over to countries
in which they have suffefed degrading treatment and torture. This Is serious enough to justify
the continuation of the Council of Europe's inquiries and strenuous efforts from all member
States tO'ascertain the truth.
100. There is a haated public debate in America on the requisite resources for fighting
terrorism. The fact that detention and interrogation centres have been relocated to other
countries is proof that the authorities are fully aware that the methods used are incompatible
with the Ainerican legal system. Europe must clearly and unambiguously declare that it
refuses outright to tolerate such doings in its territory, or anywhere else.
101. It Is equally unacceptable and appalling to ease one's conscience by delegating such'
tasks - illegal secret detention and use of torture - to third countries (which have long been
the target of high-profile specific and repeated denunciations of very· serious human rights
violations and the lack of any kind of democratic control).
' .
102. In fact, we must go beyond ascertaining the existence or non-existence of secret
detention centres in Europe. The issue at stake is even more important than that. The current
US Administration obviously considers that the traditional Instruments of the democratic State
governed by the rule of law - justice, constitutional guarantees of a fair trial, respect for
human dignity - are inappropriate for facing up to the terrorist threat. Persons assumed to be
terrorists are therefore arrested, Interrogated, deported and detained without any rights or
safeguards, thus accepting the concrete and ineVitable risk of subjecting completely innocent
people to such treatment (inside the CIA an internal inquiry is reportedly under way into
several cases of individuals who were abducted, imprisoned and tortured, before it emerged
that the wrong people had been targeted). is Europe prepared to accept suctl an approach?
Can we really say that human rights are an obstacle to national security? Can there be any
real security without respect for human dignity?
103. The safety and security of citizens and the fight against the terrorist threat are
undeniable fundamental priorities for democracies and an immense challenge to the State
founded on the rule of law. In a remarkable judgment handed down in June 2064, the US
Supreme Court used the following very clear terms: vThe point at issue in this case is nothing
less than the essence of a free society. If this national is still attached to the ideals symbolised
in its flag, It must not use the weapons of tyrants to resist an attack by the forces of tyranny".
Frank, open dialogue between the institutions on both sides of the Atlantic is necessary,
indeed absolutely vital, if we wish to implement the most effective means of combating the
new threats facing us. This can only be achieved if one side answers the questions and the
other is genuinely prepared to ask them.
.

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18

•

*

*

Update: 23.01.06 '
I

.

On 23rd January 2006, the Rapporteur received infonnatlon from both the EU Satellite Center
and Eurocontrol. He will now undertake an analysis of the infonnation (satellite pictures.
f1jghts records) provided.

'!

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,

AS/Jur (2006) 03

RELEASED IN FULL
APPENDIX I
AUeged se~ret detentions In Council of Europe member states:
Background Information.

Rapporteur of the Committee on Legal Affairs and Human Rights {AS/Jur): Mr Dick Marty,
Switzerland, ALOE (appointed 13.12.2005)
Rapporteur for opinion of the Political Affairs Committee: Mr Peter Schie~r, Austria, SOC
• Mandate: Doc 10748, Reference 3153 of 25.11.2005
• Expiry date for adoption of the report 25.11.2007
AS/Jur meeting on 7.11.2005:
• considered the possibility of asking the Standing Committee of the Assembly for an urgent
.
procedure debate
• [provisionally] appointed its Chairperson, Mr Marty, as Rapporteur and instructed him to collect
pertinent information and to present his conclusions at the next meeting
• authorised him, if .he deemed II necessal)', to make fact-fInding visits to Poland and Romania in
this context
• left it to him, if he deemed it necessary, 10 address a requesl for an urgeht procedure deba~e to
the President of the Assembly.on behalf of the Committee
• invited the Secretary General of the Council of Europe to ask States Parties to the European
Convention on Human Righls (ECHR) for information on thIs SUbject (Article 52)

14.11.2005: Letters to US authorities (Observer to the CoE), and Polish and Romanian PACE
Delegations, asking for information
17.11.2005: Reply from Romanian PACE Delegation
AS/Jur meeting on 22.11.2005:
• : consldered and took note of an Information memorandum (AS/Jyr (2005) 52 rev 2) submitted
by the Rapporteur, decld~ to declassify it and transmit It to the Bureau with a view to its public
dIstribution at the Standing Committee's meeting in Bucharest on 25 November 2005
• held an exchange of views with Mrs Kathalijne Buitenweg, MEP (Netherlands, Group of the
Greens), member of the Committee on Civil liberties, Justice and Home Affairs of the
European Parliament and Mr Emmanuel Crabit, Principal Administrator in the DirectorateGeneral for Justice, Freedom and Security of the European Commission
.• asked its Chairperson to table a motion for a resolution on alleged secret detention centres In
Council of Europe member states and to propose to the President of the Assembly that the text
be referred to the Committee on Legal Affairs and Human Rights for report as soon as possible
(fetter sent on 24.11 .2005)
.
29.11.2005: Letters to Mr Frank Asbeck, Director of European Union Satellite Centre, and to Mr
Victor Aguado, Director General of Eurocontrol, asking for their cooperation
5.12.2005: Letter from Eurocontrol, informing that they are see\(lng agreement of member'
states goveming body
6.12.2005:
Letter from US Ambassador (Observer 10 the CoE), enclosing public statement
made by US Secretary of State on 5.12.2005
[7.12.2005: Letters from Mr Frattini, Vice-President of European Commission to Mrs Benita
. Ferrero-Waldner, European Commissioner, and 10 Mr Jacques Barrot, VicePresident of European Commission, asking for support for Mr Marty (concerning EU
Satellile Centre and Eurocontrol respectively)]
9.12.2005:
Interim provisional reply from EU Satellite Centre
12.12.2005: AS/Bur invited the national parliaments to' cooperate fully wilh Mr Marty in the
preparation of his report

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED
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UNCLASSIFIED
AS/Jur (2006) 03

20

AS/Jur meeUng on 3.12.2005:
.
• held an exchange of views with Mrs Maud de Boer Buquicchio, Deputy Secretary General of the
Council of Europe, Mr Alvaro Gil-Robles, Council of Europe Human Rights Commissioner, Mr .
Cem OZdemir. member of the European Parliament (Germany, Group of the Greens/European
Free Alliance), and Mr Emmanuel Crabil, Principal Administrator in the Directorate-General for
Justit;:e, Freedom and Security of the European Commission
.
•. heard a statement by the Rapporteur on developments on this Issue sInce the last meeting,
• approved a public.sta!ement by the Bapoorteur
. .
• authorised the Rapporteur to go to the seats of the European Institutions and to make factfinding visits to certain Council of Europe member states if he deemed it necessary
• detided to ask the European Commlsslon·for Democracy through Law (Venice Comml~ion) to
prepare a legal opinion assessing the legality of secret detention in the light of Council of Europe
member states' international obligations, in particular the European Convention on Human
Rights and the European Convention for the Prevention of Torture, and expressed the wish that
this opinion be submitted as soon as possible
• asked its Chairperson to submit to the Bureau a request tor an urgent procedure debate on ..the
alleged secret detentions in Council of Europe member states" during the Assembly's January
2006 part-session
.
14.12.2005:
14.12.2005:
14.12.2005:

15.12.2005:
16.12.2005:
16.12.2005:
19.12.2005:
21.12.2005:
21.12.2005:
22.12.2005:
10.01.2006:
11.01.2006:
16.01.2005:
19.01.2006:

23.01.2006:

Letter to Mr Brian Ross, Joumalist ABC
Lelterto Mr Lenn Downie, Editor, Washington Post
Letter from Mr Frank Asbeck, EU satellite Centre, informing that the provision of
satellite images is not part of the Centra's·mission
Letter sent to the Venice Commission requesting a legal opinion (see Appendix III)
"Information Notice" (reply) from Polish Delegation
letter sent to the President of the Assembly proposing an urgent procedure debate
Letters sent all PACE delegations, enclosing questions which MPs could put to their
governments and a list of alleged flight patterns (see Appendix II)
Letter from Washington Post (Mr Downie), informing that it was not possible to
disclose their sources
Follow-up letter to Mr Iwinski, Head of Polish PACE Delegation
Letter sent to Mr Javier Solana, SG of the Council of the European Union, asking
him to authorise EU SatelJlte Centre cooperation
Letter from Venice Commission: adoption of its opinion foreseen on 17-18.03.2005
Reminder letter to Mr Victor Aguado, Director General of Eurocontrol ... reminder email from As/Jur secretariat to Mr·Solana's secretariat
Reminder messages sent to Mr Iwinski and Mr Ross (ABC)
Letter from ABC (on behalf of Mr Brian Ross) informing that it was not possible to
disclose their sources, but that ·they could provide· the video recording of the report
of 5 December 2005 (to which Mr Marty replied that he would indeed appreciate
receiving the video recording)
Informalion received from the EU Satellite Center and Eurocontrol

·1

............... ..
.-.

Secretariat contacts:
Mr Andrew DRZEMCZEWSKI, Head of the Secretariat
Tel: +3338841 2326; Fax: +33 38841 2702; e-mail: andrew.drzemczewski@coe.int
Mr GOnter SCHIRMER, Secretary

Tel: +33 3 8841 2809; Fax: +3338841 2702; e-mail: guenler.schirmer@coe.int

UNCLASSIFIED
L0055

UNCLASSIFIED

APPENDIX II
Letter of 19 December 2005 from Mr DIck Marty, Chairperson of the Committee on Legal
Affairs and Human Rights to the Chairpersons of the National Delegations

As you are no doubt aware. the Committee on Legal Affairs and Human Rights has.Instructed me
to prepare a report on -Alleged secret detention centres In Council of Europe member states· (Doc
10748).
At Its meeting In Paris on 13 December 2005. the Committee discussed the action taken on this
issue In their national parliaments. I have been asked. at the request of members of the
Committee, 10 prepare a list of pertinent questlons which members of parliament could address to
their governments. I would be grateful If you could forward this list to the members of your
Parliament as soon as possible. The pressure thus brought to bear in national parliaments will
reinforce that exerted by International organisations.

.
.
I would also be grateful if you could send me replies already given or to be given by your
governments to these questions. This Information will be extremely useful if the Assembly decides
to follow the Committee's proposal to hold an urgent procedure debate on this matter during the
January 2006 part-session.
thanking you In advance for your cooperation. I remain,

(Enclosed with this letter was a list of alleged flight patlerns of suspected CIA flights.]

Appendix to the letter:
Questions which members of the Parliamentary Assembly might put to their respective
govemments In their national parliament:
Secret services:
Is .the Government systematically informed of the activities of foreign secret services (in
particular the CIA) on national territory?
How' does it supervise co-operation between the national secret services and those of
• partner counlries? To what extent might the Government have tolerated certain illegal
activities by foreign secret services on national territory by adopting a passive attitude?
Are there any specific agreements with the USA on combating terrorism (possibly providing
for the USA to have bases on national territory or even to carry oul policing operations
indepe ndently)?
Secret detention centres:
Does the Government have any information regarding the existence of secret detention.
centres on national territory or elsewhere in Europe? If so, what information? Since when?
Have the aUlhorities been contacted by the authorities or secret services of other countries
requesting permission for the (secret) detention and/or "rendition" of prisoners on national.
territory?
Has the Government requested information from the American authorities regarding the
alleged existence of secret detention centres in Europe? If so. \,!hat replies has it received to
date? .

UNITED STATES DEPARTMENT OF STATE
REVIEW 'AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED
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UNCLASSIFIED
AS/Jur (2006) 03

22

Flights to, from or over national territory by CIA aircraft/transportation of prisoners:

r-=-

, 1
l

Does the Government know of any fllghts to, from or over national territory by aircraft
chartered by the CIA or related agencies (outsourcing)? If so, since when, and how frequent
have they been?
.
Was permission requested from the Government or the competent authorities for the flights
and overflights In question? If so. what was its/their response?
What information must,be provided in support of such requests? Must a list of passengers'
names (always) be supplied?
What implications do the NATO accords or other similar agreements have for the •
procedures for requesting permission for the alleged frights? 00 these procedures only apply
to mllilary flights l?r can they be extended to civilian flights?
Does the Government know of (or has it tolerated by adopting a passive attitude) the illegal
transportation of prisoners on lhose flights? If so, since when has this been the case?
What Is the legal basis allOWing prisoners to be transported via national territory by a third
country? Has the Government. ever authorised this kind of transportatlon? If so, what kind
of assurances can it demand regarding the conditions under which these prisoners are
held?
.
Does the Government know of any landings on national territory of aircraft which may have
carrled such prisoners (eg on their way to the Guanlanamo Bay base)? If so. please give
details.
Does the Government know of, or has it been passively or actively involved in, the carrying
out of abductions by foreign secret services on national territory or that ,of other slates?
Have there been any judicial Investigations Into these cases? If so, what results have there
been so far?
Has the Government requested Information from the American authorities regarding alleged
flights to, from or over national territory by aircraft chartered by the CIA which may have
been used for the illegal transportation of prisoners? If so. what replies has it received so
far?

UNCLASSIFIED
L0057

UNCLASSIFIED
23
APPENDIX 1/1

AS/Jur (2006) 03

RELEASED IN FULL

,L-/;<~~

Letter of 1S December 2005 from Mr Dick Marty, Chairperson of the Committee on Legal
Affairs and Human Rights to Mr Antonio La Perg~la, President of the European .
Commission for Democracy through Law

As you are no doubt aware, , am preparing a report on "alleged secret detention centres In C9uncil of
Europe member states· (PACE.Ooq 10748 and document AS/Jur (2005) 52 rev 2, copies attached).
r have been mandated by the Committee on Legal Affairs and Human Rights to
request a'Legal Opinion from the. Venice Commission.
In this context.

The Committee would appreciate receiving an Opfnion with respect to the following two inter-related
matters:
1.
An assessment of the legality of secret detention in the light of Council of Europe member
States' Intemationallaw obligations. in particular the European Convention on Human Rights and the
European Convention for the Prevention of Torture. In particular, to what extent is a State
responsible if - actively or passively - it permits illegal detention or abduction by a third State or an
agent thereof?
2.
What are the legal obligations of Council of Europe member States. under human rights and
general international law, regarding the transport of detainees by other States through their territory,
including their airspace? What is the relationship between' such obligations and possible
countervailing obligations whIch derive from other treaties, including treaties concluded with non-

member States?

\

f

.

'

Bearing in mind that my report is to be presented at the Assembly's session on 23- 27 January 2006,
I would very much appreciate it if the said Legal Opinion, or at least an Interim or provisional version
thereof, could be provided to the Committee on Legal Affairs and Human Rights before the
Assembly's January 2006 part-session.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCmE M BOLSTER
DATE/CASE ID: 18 JUN 2009 200706444

UNCLASSIFIED
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UNCLASSIFIED
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24

.:.:. --..:...

APPENDIX IV
Communication of 21 November 2005 from the Secretary Geneml of the Council of Europe
to the ContmctJng Parties to the ECHR
Request for an explanation In accordance with Article 52 of the European, Conventl,on on

Human Rights
The Secretary General of the Council of Europe,
Having regard to the Convention for the Protection of Human Rights and Fundamenti:tl Freedoms
(hereafter referred to as "the Convention") and its Protocols;
,
Having regard also to the case law of the European Court of Human Rights which has given
concrete expression to the rights and freedoms guaranteed thereunder and which has affirmed
that the law and practice of tile High Contracting Parties must comply ,with the provisions of the
Convention and its additional Protocols;
Noting that there have been recent reports suggesting that individuals, notably persons suspected
of Involvement In acts of terrorism, may have been apprehended and detained, or transported
while deprived of their liberty, by or at the instigation of foreign agencies, with the active or passive
cooperation of High Contracting Parties to the Convention or by High Contracting Parties
themselves at their own initiative, without such deprivation of liberty having been acknowledged; ,
Bearing in mind the fundamental importance of the safeguards contained in the Convention
against arbitrary deprivatIon of liberty both in their own right and for the protection of the right to life
and for upholding the absolute prohibition of torture or inhuman or degrading treatment or
punishment;
Considering that, unclar Article 1 of the Convention, the High Contracting Parties shall secure 'to
everyone within their jurisdictlon the rights' and freedoms guaranteed therein and that the
participation, acquiescence or·connlvance of the authorities of a Contracting State In the acts at
the agents of another State affecting Convention rights may engage the Contracting State's
responsibility under the Convention and that such responsibility m~y also be engaged where that
State's agents are acting ultra vires or,contrary to instructions;
Considering also that unacknowledged deprivation of liberty raises serious questions concerning
the effective implementation of, and compliance with, the, Convention, notably its Articles 2, 3, 5, 6.
8. 13 and Article 2 of Protocol No.4 to the Convention;
Acting on the basis of the powers conferred on him by virtue of Article 52 of the European
Convention of Human Rights:
1.

Requests the Governments of the High Contracting Parties to furnish an explanation of the
manner in which their lnternallaw ensures the effective implementation of the provisions of
the Convention and its additJonai Protocols, as interpreted by the European Court of
Human Rights, regarding the following specific issues:
explanation of the manner in which their internal law ensures that acts by officials of
foreign agencies within their jurlsdlctio'n are SUbject to adequate controls;
explanation of the manner in which their internal law ensures that adequate
safeguards exist to prevent unacknowledged deprivation of liberty of any person within
their jurisdiction, whether such deprivation of liberty is linked to an action or. an
omission directly attriputable to the High Contracting Party or whether that Party has
aided or assisted the agents of another Slate in conduct amounlfng to such
deprivation of liberty, including aid or assistance in the transportation by aircraft or
otherwise of persons so deprived of their liberty;
explanation of the manner in Which their internal law provides an adequate response
to any alleged infringements of Convention rights of individuals within their jurisdiction,

UNCLASSIFIED
L0059

UNCLASSIFIED
, 25
,

'ASlJur (2006) 03
'

notably in the context of deprivation of liberty, resulting from the conduct of officials of
foreign agencies. In particular, explanation of the availability of effective investigations
that are prompt,. Independent and capable of leading. to the Identification and
sanctioning of those responsible for any illegal acts, including those responsible for
aiding or aSSisting in the commission of such acts, and the payment of adequate
compensation to Victims;
.

r --

J

In the context of the foregoing explanations, an explanation is requested as to Whether, in
the period running from 1 January 2002 (or from the moment of entry in force of the
Convention if that occurred on a later date) untll the present, any public official or other
person acling in an officfal capacity'has' been involved in any manner - whether by action
or omission - In the unacknowledged deprivation of Ii~erty of any Individual, or transport of
any indivlqual while so deprived of their liberty, inclUding where such deprivation of liberty
may have occurred by or at the instigation of any foreign agency. Information is to be
provided on whether any official investigation Is under way and/or on any completed
investigation;

2.

Requests that these explanations be provided by 21 February 2006.

\

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UNCLASSIFIED
L0060

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5. DO NOT TYPE DATE. Date \ViIi be added after signature.
6.. If direct reply on behalf of eOTUSr fill out ExecutiVe Secretariat Trailsmittal Form..
#92619v.U

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444
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"T-fsl of "G~QS~ Prisoner~( Possibly in CIA Custody (Human RightS Watch, November 30~' .,. Page I of 5

,~

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UNCLASSIFIED
,,--'
. j List

of"Ghost Pri~oners"

'l- i?J3-;
!

RELEASED IN FULL
.i
Possibly in CIA Custody

I

List of Detainees Published by Human Rights Watch
The fonowing is a list of persons believed to'be in U.S. custody as "ghost detainees" - detainees who are not
given any legal rights or access to counse]~ and who are likely not reported to or seen by the Intemational
Committee of the Red Cross. The list is compiled from media reports, public statements by government
officiatst and from other information obtained by Hurnan Rights Watch. Human Rights Watch does not
consider this list to be complete: there are likely other "ghost detainees" held by the United States.
Under intemationallaw, enforced disappearances occur when persons are deprived of their liberty, and the
detaining authority refuses to disclose their fate or wbei'eabouts~or refuses to acknowledge their detention,
which places the detainees outside the protection ofthe law. Intemational treaties ratified by the United
States prohibit incommunicado detention of persons in secret locations.
.

.

Many of the detainees listed below are suspected of involvement in serious crimes, including the September
11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two
nightclubs in Bali, Indonesia. (One of the listed, No. 25, Ahmed Khalfan Ghailani, was indicted in U.S.
federal court for his role in the 1998 attacks.) Yet none on this list bas been a~ignedor criminally charged, .
.) and government officials, speaking anonymously to journalists, bave suggested that some detainees have
been tortured or seriously mistreated in custody.
The current location of these prisoners is Unknown.
List, as of December I, 2005:
1. Ibn Al-Sbaykh

al-Libi

Reportedly arrested on November 11, 2001, Pakistan.
Libyan, suspected commander at al-Qaeda training camp.
Previo,:!sly listed as "disappeared" by Human Rights Watcb.
2. Abu Faisa!

Reportedly arrested on December 12, 2001
Nationality unknown. See next entry.

3. Abdul Aziz
Reportedly arrested on December ~, 2001
Nationality unknown. In early January 2001, Kenton Keith, a spokesman at the U.S. Embassy.in Islamabad,
produced a chart with the names ofsenior al-Qaeda members listed as killed in action, detained t or on the
run. Faisal and Aziz. were listed as detained on Dec. 12 and 14t 2001. See: Andrea Stone, "Path to bin Laden
may lie behind bars; US interrogates al-Qaeda, Taliban prisoners in hope of nailing down war on terror's
:prime targets," USA Today, January 8,2002; Bradley Graham and Walter Pincus, "Al-Qaeda Trai~er in U.S.
Hands," The Washington Post, January 5,2002..
I

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
D41TtVl.~.8?~~S1~~'lP.Jj14ff30/usdom121 09_txt.htm

UNCLASSIFIED
'4/1312006

L0063

..

Li~ of "Ghost Prisoners" Possibly in CIA ~~~atc~, Novempef 3Q~ .!~. fage 2 'If ~
./

4. Abu Zubaydah (also knQWD as zain al-Abidin Mubabhad Husain)
Reportedly arrested in March 2002, Faisalabad~ Pakistan.·
."
.JPalestinian (born in Saudi Arabia), suspected senior alwQaeda operational planner. Listed as captured in
"George W.13..!lSh:.A~cord of Achievement, W~J}gJln!l Winning the War on Terror":'
available on the White House website. Previously listed as "disappeared" by Human Rights Watch.

./.-=:-,

5. Abdul Rahim al-Sbarqawi (aka Riyadh the facilitator)
Reportedly arrested in January 2002
PossiblyYemeni, suspected alwQaeda member (possibly transferred to Guantanamo). PreviouslY listed as
"disappeared" by Human Rights Watch (see note 27).
6. Abd aI-Hadi ai-Iraqi
Reportedly arrested in·January 2002
Nationality unknown, presumably Iraqi, suspected commander of aJ-Qaeda training camp. U.S. officials told
Associated Press on January 8, 2002 ~d March 30, 2002, of al-Iraqi's capture. See e.g., "Raid May Have
Nabbed Bin Laden Lieutenant," Associated Press, March 30, 2002~ Previously listed as "disappeared" by
Human Rights Watch (see note 27).
7. Muhammed al-Darbi
Reportedly arrested in August 2002
Yemeni, suspected al-Qaeda member. The Washington Post reported on October 18, 2002: "U.S. officials
learned from interviews with Muhammad Darbi, an al Qaeda member captured in Yemen in August, that a
. Yemen cell was planning an attack on a Western oil tanker, sources said." On December 26, 2002, citing
}"U.S. intelligence and national securltyofficials," the Washington Post reports that aI-Darbi, as well as
. Ramzi BinaIshibh [see beiow], Omar alwFaruq [reportedly escap"ed from U.S. custody in July 2005], and Abd
al-Rahim al-Nashiri [see below] all "remain under ClAoontrol."
8. Ramzi bin al-Shibh
Reportedly arrested on ~eptember 13, 2002
Yemeni, suspected al-Qaeda conspirator in Sept. 11 attacks (former roommate of one of th~ hijackers). Listed
in "George W. Bush: Record ofAchievement, Waging and Winning the War Terror," available on the
White House website. Previously listed as "disappeared" by Human Rights Watch.

on

9. Abd al-Rahim alwNashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu DUal alMakki or Mullah Ahmad Belal)
Reportedly arre~ted in November 2002, United Arab Emirates.
Saudi or Yemeni, suspected aJ-Qaeda chief of operations in the Persian Gulf, and suspected planner ofthe
USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ~Georg~tW~Ji.lM!h:R~Qr.dJ~f
Aclli.~Y~m~nt,":WagIDg."lnt(lWi.illtingJ.b~"
War:JmT.~r.r..QF. . ="available on the White House :w~h~it~. Previously

lis.ted as "disappeared" by Human Rights Watch.
Mohammed Omar Abdel-Rahman (aka Asadullah)
Reportedly arrested in Febroary 2003, Quetta, Pakistan.
Egyptian, son of the Sheikh Omar Abdel-Rahman, who was oonvicted in th.e United States of involvement in
;terrorist plots in New York. See Agence France Presse, March 4.2003: "Paldstani and US agents captured
the son of blind Egyptian cleric Omar Abdel Rahman... a US official said Tuesday. MuhamadAbdel Rahma~
10.

UNCLASSIFIED
http://hrw.orglenglish/docs/2005/11/30/usdom12109_txt.htm

4/13/2006
L0064

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was arrested in Quetta, Pakistan, the official said, speaking on condition of anonymity." David Johnston,
New York Times, March 4, 2003~ "On Feb. 1.3, whe~ Pakistani authorities raided a:q apartment in Quetta,
, they got the break they needed. They had hoped to find Mr. [Khalid Sheikh] Mohammed, but he had fled the
,
) apartment, eluding the' authorities, as he bad oil numerous occasions. Instead, they found and arrested'
Muhanuna~ Abdel Rahman, a son of Sheik Omar Abdel Rahman, the blind Egyptian cleric. •."

Mustafa al-Hawsawi (aka al-Hisawi)
Reportedly arrested on March 1,,2003 (together with Khalid Sheikh Mohammad), Pakistari.
Saudi, suspected al-Qaeda financier. Previously listed as "disappeared" by Human Rights Watch.

11.

Khalid Sbeikh Mohammed
Reportedly arrested on March 1, 2003, Rawalpindi, Pakistan.
Kuwaiti (Pakistani parents), suspected al-Qaeda,'alleged to have "masterminded" Sept. 11 attacks, kill~ng of
Daniel Pearl, and USS Cole attack in 2000. Listed in ~GeorgeW. Bush: E.~9rd of Achievement,~L~,o.d
Wmning the War on Terror." available on the White House website. Previously listed as "disappeared" by
Human Rights Watch.
12.

13. Majid Khan
Reportedly arrested on March-April 2003, Pakistan.
Pakistani, alleged link to Khalid Sheikh Mohammad, alleged involvement in plot to blow up gas stations in
the United States. Details about Khan's arrest were revealed in several media reports, especially in
Newsweek: Evan Thomas, "AI Qaeda in America: 1'he Enemy Within,n Newsweek, June 23, 2003. U.S.
prosecutors provided evidence that Majid Khan was in U.S. custody during the trial of 24-year-old Uzair
Paracha, who was convicted in November 2Q05 ofconspiracy charges, and ofproviding material support to
! terrorist organizations.

14. Yassir al..Jazeeri (aka al..Jaziri)
Reportedly arrested on March is, 2003, Pakistan.
Possibly Moroccan; Algerian, or Palestinian, suspected al-Qaeda member, linked to Khalid Sheikh
Mohammed. Details of arrest reported: ~ex Spillius, "FBI Questions al-Qaeda Man in Pakistan," Daily
Telegraph, March 17, 200$ Paul Haven, "Al-Qaida suspect begins cooperating with authorities, Pakistani
security officials say," Associated Press, March 17, 20°3. .'
15. Ali Abdul Aziz Ali (aka Ammar al Baluchi)
Reportedly arrested on April 29, 2003, Karachi, Pakistan.
A Pakistani, he is alleged to have funneled money to September Ii hijackers, and alleged to have been'
involved with the Jakarta Martiot bombing and in handling Jose Padilla'S travel to the United States.
U.S. Judge Sidney Stein ruled that defense attorneys for Uzair Paracha could introduce statements Baluchi
made to U.S. interrogators, proving that he was in U.S. custody. Fonner Deputy Attorney General Jam~
Corney also me~tioned Baluchi during r~mAl:k~JQ.J:h~m..e.di~ about the case ofJose Padilla on June 1, 2004
16. Waleed Mobamme~bin Attasb (aka Tawfiq bin Attash or Tawfiq Attasb Kballad)

Reportedly arrested on April 29, 2003, Karachi, Pakistan.
Saudi (of Yemeni descent), suspected of involvement in the bombing of the USS Cole in 2000, and the Sept.
11 attacks. See Afzal Nadeem, "Pakistan Arrests Six Terror Suspects, including Planner of Sept. 11 and USS
Cole Bombing," Associated Press, April 30, 2003. His brother, Hassan Bin Attash, is currently held in
Guantanamo. PreviouslY li.~~d. as "disappeared" by Human Rights Watch.

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President Bush des~bed his arrest as a "major, significant find" in the war against terrorism: "He's a killer.
.. He was o~e of the top al-Qaeda operatives.... He was right below Khalid Shaikh Mohammad on ~e
.~, organizatiopal chart of al-Qaeda. He is one less person that people who love freedom have to'worry about."
" David Ensor and Syed Mobsin Naqvi, "Bush Hails Capture of Top al Qaeda Operative," CNN.com, Mar 1,

'l

2003·

1,. Adil al-Jazeeri
ReportedlYafrested on June 17, 2003 outside Peshawar, P8.kistan.
Algerian, suspected al-Qaeda and longtime resident ofMghanistan, alleged "l~ding member" and "longtime
aide to bin Laden." (Possibly transferred to Guantanamo.) Previously listoo as "disappeared" by Human
~ghts Watch.

18. Hambali (aka Riduan Isamuddin)
Reportedly arrested. on August 11, 2003, Thailand.
Indonesian, involved in Jemaah Islaniiyah and al-Qaeda, alleged involvement in organizing and financing
the Bali nightclub bombings, the Jakarta Marriol Hotel bombing, and preparations for the September '11
attacks. Listed in "George W. Bush: Record ofAchievement, Waging and Wmning the War on Terror.~
available on the White House website. Previously listoo as "disappeared" by Human Rights Watch.
19. Mohamad Nazir bin Lep (aka Lillie, or Li-Li)
Reportedly arrested in August 2003, Bangkok, Thailand.
Malaysian, alleged link to Hambali. See next entry.
20. Mohamad FarikAmin (aka Zubair)

) Reportedly arrested in June 2003, Thailand.
. Malaysian, alleged link to Hambali. For more information on the arrest of Mohammad Farik Amin and
Mohamad Nazir bin Lep, see: Kimina Lyall, "Hambali Talks Under Grilling-Slaughter of Innocents," The
Australian, August 21, 2003; Kimina Lyall, "Hambali Moved JI Front Line to Bangladesh, Pakistan," The
Weekend Australian, September 27. 2003; Simon Elegant and Andrew Perrin, U Asia's Terror Threat," Time
Asia Magazine, October 6, 2003: Simon Elegant. "The Terrorist Talks," TIme, October 13, 2003.
21.

Tariq Mahmood

, Reportedly arrested in October 2003, Islamabad, Pakistan.
Dual British and Pakistani nationality, alleged to have ties to al-Qaeda. See "Pakistan grills detained British
al-Qaeda suspect," Agence-France Presse, November 10, 2005; Sean O'Neill, "Five still held without help or
hope; Guantanamo," The Times, January 12, 2005.
22.

Hassan Ghul

Reportedly arrested on January 23, 2004, in Kurdish highlands, Iraq.
Pakistani, alleged to be Zarqawi's courier to bin Laden; alleged ties to Khalid Sheikh Mohammad. President
Bush described Hassan Ghul's arrest on January 26, 2004, in comments to the press, Little Rock, Arkansas:
"Just last week we made further progress in making America more secure when a fellow named Hassan Ghul
was captured in Iraq. Hassan Ghul reported directly to Khalid Sheik Mohammad, who was the mastennind
of the September 11 attacks.... He was captured in Iraq, where he was helping al Qaeda to put pressure on
our troops."
23.

Musaad Aru~hi (aka Musab a1-Baluchi, al-Balochi, al-Baloshi)

UNCLASSIFIED

hnp://hrw.orgienglishldocs/2005/11I30/usdom 121 09_txt.htm

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~,~t

qf "Oho~t friS9pers" PossiblY ~Q CIA ~&If1mtJ1atch,

Novewber 3D, ... Page 5' of 5

Reportedly arrested in Karachi on June :1.2, 2004, 'in a "CIA-supervised operation."
Presumably Pakistani. Pakistani intelligence officials told journalists Arucbi was held by Pakistani
, ~ '., authorities at an airbase for three days, before being handed over to the U.S.• and then flown in an unmarked
';
,,! CIA plane to an undisclosed location. Anwar Iqbal, "Pakistan Hands Over 1998 Bomherto US," United Press
International, August 3, 2004. See also, reports cited in nextentIy, and zahid Hussain, "Pakistan Intensifies
, Effort Against al Qaeda," The Asian Wall Street Journal, August 5, 2004; Bill Powell, "Target: America,"
Time Magazine, August 16,2004, Vol. 164, Issue 7; "Pakistani Aides: Al-Qaida Arrest in June Opened
leadS," Dow Jones International News, August 3, 2004; "CIA-supervised arrest in Pak opened valuable,
leads: Report," The Press Trust of India, August 3. 2004.
'

24- Mohammed'Naeem Noor Khan (aka Abu Talaha)
Reportedly arrested on JulY:l.3, 2004, Pakistan. ,
Pakistani, computer engineer, was held by Pakistani authorities, and likely transferred to U.S. custody.
(Possibly in joint U.S.-Pakistani custody.) See Douglas JebJ and David Rohde, "captured Qaeda FIgUre Led
Way To Information Behind Warning," New York Times, August 2, 2004. Kamran Khan, "AI Qaeda ArrestIn
June Opened Valuable Leads," Washington Post, August 3.2004; Kamran Khan and Dana Priest, "Pakistan
. Pressures AI Qaeda; Military Operation Results In Terror Alert and Arrests," Washington Post, August 5,
2004; "Pakistan questioning almost 20 Al-Qaeda suspects," Agenee-France Presse, August 5. 2005; Robert
Block and Gary Fields, "AI Qaeda's Data on U.S. Targets Aren>t New: Surveillance of Listed Sites In Eastern
, Cities Took Place Over Time, Perhaps Years," Th~ Asian Wall Street Journal, August 7, 2004; Adrian Levy
and Cathy Scott-Clark. "One Huge U.S. Jail," The Guardian, March 19, 2005.
25. Ahmed Khalfan

.'

Ghailani
Reportedly arres~ed on July 24, 2004, Pakistan
.
) Tanzanian. reportedly indicted in the United States for 1998 embassy bombings. U.S. and Pakistani
intelligence officials told UPI that Ghailani was transferred to "CIA custody" in early August. See Anwar
Iqbal, "Pakistan Hands Over 1998 Bomber to US," United Press International. August3, 2004. Pakistani
security officials told AFP and Reuters in'January 2005, that Ghailani was handed over to the United States
"several months ago." See e.g., "Pakistan hands Tanzanian Al-Qaeda bombing suspect to US," Agence France
Presser January 25, 2005. Listed as captured in ~GCQrge W.Jt1!~l.R~QrQ_9fAc.mevement. WaginjLand
Wln..n.rngjb~,.war on Terror.:available on the,White House web$it.~.
26. Abu Faraj al-Libi
Reportedly arrested on May. 4, 2005, North Western Frontier Province, Pakistan.
Libyan, suspected al-Qaeda leader of operations, alleged mastennind of two assassination attempts on
Musharraf. Col. James Yonts, a U.S. military spokesman in Mghanistan, "said in an email to The Associated
Press that al-Libbi was taken directly from Pakistan to the U.S. and was not brought to Mghanistan."

From:

http://hrw,orglef!.gl!sh((:I~.rI9.&11,o.o~uS(!om,1210,~.htm

© Copyrighl2003, Human Rights Wa.tch

350 Fifth Avenue, 34lh Floor

,

New Yoll<, NY 10118,3299

USA

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.1

UNCLASSIFIED
Deeks, Ashley S
From:
Sent:
To:

Subject:

RELEASED IN FULL

Filippatos, James
Friday, May 05, 2006 9:34 AM
Deeks, Ashley S; Brancato, Gilda M; Hill, Steven R; PeJofsky, Eric J; Johnson, Darin E;
Dorosin, Joshua L; Legal-All-Deputies
FW: USEU Media Transcript for Clearance

'FYI.
Jim
7-7970
From:

Gianfl'anceschl, Robert E(BnJssels)

Sent:

Friday, May 05, 20064:31 AM
Filippatos, James
FW: USEU Media Transcript fur Oearance

To:
Subject:

.

~m

John Bellinger asked that I send him directly the transcript for clearance. which I did yesterday afternoon. Sending you
a copy to follow up with any changes and clearance, for posting on USEU website.
.
Thanks for your help on this - and for your preliminary advice on press events.
Rob
Robert Gianfranceschi
Press Officer - USEU
Tel. +32 (0)2 508-2779
Fax. +32 (0)2 512-5720
email. gianfranceschire@state.gov

From: Gianfranceschi, Robert E

Sent: Thursday, May 04,20066:01 PM
To: Bellinger, John B{lega1)
Subject: USEU Media Transcript for Clearance
John,
Here's the draft transcript from this morning's media roundtable - for your clearance. Our intention, with your approval,
is to post the cleared transcript on USEU website.
Le Monde expects the story based on the Stroobants. interview to run in the edition out Friday early ~fternoon (and
dated Saturday, May 6).
Robert Gianfranceschi
Press Officer - USEU
Tel. +32 (0)2 508-2779
Fax. +32 (0)2 512-5720
email. gianfranceschire@state.gov

JOHN B. BELLINGER, III
Legal Adviser, U.S. Department of State

Media Roundtable
USEU - Brussels
May 4, 2006
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

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"

Mr. Bellinger: Thank you all for coming out this morning early. As you know, I'm John Bellinger, the Legal
Adviser at the State Department. I am passing through Brussels briefly right now, largely just for bilateral
consultations with ED officials, with Belgian officials, with NATO officials, primarily on my way this afternoon
to Geneva where I will head the U.S. delegation presenting our defense of our report to the Committee Against
Torture Wlder the Convention Against Torture. We make our presentation tomorrow in Geneva.

It's actually an amusing process in terms of the process. We will make a presentation, then the Committee will
give us questions, and then we have a take~home assignment. We go home over the weekend and work out our
an~wers to the questions, and then we come back on Monday in Geneva and provide.our answers.
We'll have quite a large delegation, between 25 and 30 people, from all U.S. agencies. We've worked very hard
to answer the Committee's questions and 4ave taken the process extremely seriously.
The Convention Against Torture requires a report every four years and it was time for the U.S. report. We have
provided quite a voluminous one, and in addition have prepared a number of answers to the Committee's
questions.
Obviously, this is a difficult time for the United States with numerous allegations that have been made, but we
don't shrink away from answering the questions and we have brought, as I say, ~ large delegation ofpeople to
demonstrate that we take the process very seriously, that we take our obligations to provide a report very
.
seriously, and have come prepared to answer the Committee's questions.
I have, during the last year including my time in Brussels, tried to meet wIth journalists and with officials in all
ofthe European capitals that I have been through to address questions that have been raised about the U.S.
commitment to its international obligations, including with respect to detainees and international criminal
justice. This is something that Secretary Rice takes extremely seriously. During her transition from the White
House to the Department of State, when I was the co-manager of her transition team, this was an issue that we
identified was ofparticular concern in Europe. You'll recall at the time she was confirmed she emphasized that
now is the time for diplomacy, meaning that after the two wars during the previous four years that it was .
important emphasize our diplomatic activities and a sub-part ofthat was emphasizing U.S. commitment to
our international obligations and to rule oflaw. .

to

You will have seen, ifyou follow closely, that Secretary Rice has mentioned this theme regularly in her
presentations. Just two weeks ago she addre~sed the American Society ofinternational Law, at its centennial in
Washington, and made further significant remarks on international law and rule oflaw, and I, as the Legal
Adviser to the State Department, have tried to go through European capitals and to answer questions on these
issues and emphasize our commitment to our obligations arid to answer the questions people have that we know
are out there.
So I'll just stop with that and start taking your questions.
Q: I have been following the CIA inquiries in the European Parliament. One of the allegations made ·by the
former British Ambassador to Uzbekistan is that the CIA has been effectively subcontracting torture, using the
Uzbeks to do this. The argument put forward by the British Foreign Secretary Jack Straw was that was in line
with the Convention on Torture because you're not instigating the torture yourselves. Is that also the American
administration's reading ofthe Convention?

i

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Mr. Bellinger: I won't comment on what Mr. Straw said because I haven't seen it. We've made very clear
that, contrary to allegations, we do not outsource torture., We are against torture ourselves. We take 9ur'
obligation under the Convention Against Torture seriously. We have criminal statutes against torture. The
President has made clear that we do not condone torture. We will not transfer people to other countries
expecting that they will be tortured.

We have said, as you know; in Secretary Rice's statement last December, we have defended as a useful tool in
fighting terrorism the practice ofrendition in certain rare circumstances where an individual would otherwise
not be able 'to be brought to justice or would otherwise be able to escape and avoid capture, that we have .
defended the practice in terms of transferring a person to another country ofhis nationality or where the person
may be wanted. But in all circumstances we do not transfer the person with the expectation that the person
would be tortured or would be mistreated.
Q: The U.S. is evidently in a campaign here,.a public relations campaign, as you said earlier in your stat~ment,
to alleviate fears in the international community on this. Do you not thi~ it is really time to take into account
what the international comrimnity is telling you, basically the Europeans - that it's time to really do something
about Guantanamo, which l'm no legal person, but it seems to me it does not abide by intemationallaw. That
would be a huge step in easing fears and making the situation better. [Inaudible] So what are you going to do?
Mr. Bellinger: We are acutely aware of the concerns that have been raised both in Europe and around the
. world about Guantanamo. We don't want to keep Guantanamo open any longer than is necessary. As you
know, we have been reducing the numbers. We do not want to be the world's jailers.

A great difficulty is - what is the alternative? There have been a number of voices recently who have called for
the closure of Guantanamo, but none of those who have called for the closure of Guantanamo have suggested an
alternative. So we know there are a large number ofpeople in Guantanamo who have trained in al-Qaida
training camps, trained in terrorist techniques, in bomb making, in chemical weapons manufacture, and the
question is what should be done with those people?
We don't have many other countries in the world who are stepping up to say this is a problem for the
international community. The United States should not have to shoUlder this burden alone. So we are happy to
take these individuals.
I would dispute your suggestion that it's a violation ofinternationallaw. We're clearly aware of the concerns
people have raised. One of the things that I have tried to do because I think: the U.S. perhaps has not been
sufficiently clear to explain our legal basis and to address the legal concerns that have been raised over the last
few years about Guantanamo, to go out and address those concerns.
I think it's both ironic and telling that critics criticize us for essentially diametrically opposed violations of
international law. Halfthe critics tell us that the people in Guantanamo should be treated as criminals and need
to pc prosecuted under criminal laws or released. The other half of the people say they should be treated under
international "humanitarian law or the laws of war and need to be treated as POWs or released. That's just
simply a quick sumniary. There are hundreds of different statements that people tell us about the way they think
the legal framework ought to work, and the fact that there seem to be so many different views reflects, I think,
an understandable, uncomfortableness that perhaps we all have about the holding of this category of al-Qaida
people. But the fact is the legal framework for holding people like this was simply not a very well developed
framework and not well developed to hold people like this.
So I don't think it's a violation ofintemationallaw. We thinlc. we are acting completely consistently with our
international obligations. But we do know those questions are out there and that's one of the reasons that I've
tried to come out and to address the concerns that people have.
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Q: You said that there has been the practice of rendition. Now the Council of Europe has said' in a preliminary

report that there have been thousands of CIA flights over Europe. Can you confirm that the rendition taking
.
place has been in Europe or above the EU, and could you give any figures?
Mr. Bellinger: Thanks very much for that question. The last time I was in Europe, about two months ago, the
suggestion was that there were 400 flights. We're now up to 1,000 flights. I think the next time I'll be here it
will probably be about 10,000 flights.
These allegations that there have been thousands of flights with the implication that they all have got detainees
on them, and worse, detainees bound for mistreatment, is simply absurd. And the suggestion in fact that these
flights are in fact leading up to anything that is improper or nefarious is also, I think, a dangerous suggestion.
There have not been thousands offlights'. There have been, as we have said, a very few cases ofrendition. We
have made clear that we are npt going to comment on specific details. But the suggestion that there ~ve been
large numbers or that tl)~s allegedly large number of flights have had detainees on them is simply an absurd
allegation.
It's dangerous in the following way: in that the suggestion that flights themselves, intelligence flights are
somehow engaged in illegal activity really undermines the cooperation between the United States and Europe.
Many ofthese flights that have occurred may simply be carrying analysts for intelligence agencies to cOoperate
with one another, or other officials who are engaged in counter-terrorism cooperation. They may be carrying
forensic evidence that will be shared with European partners so that Europeans can look at the evidence that we
have collected.
. '
So it's very dangerous to suggest\that these instances offlights like this are somehow always engaged in illegal
activity.
Q: To follow up on that. I think the reference was to about a thousand, not thousands. Do you still say that that

figure is ab~urd?
Mr. Bellinger: I don't have the details on, one, I'm not sure what the latest allegation is. My point is that it
seems to be growing. I don't have the information on exactly how many flights there have been.
What I am suggesting is that the unchallenged allegation or implication that all of these flights have got
detainees on them is really just absurd. Someone needs to challenge that. It's not possible for the United States
to prove a negative, but responsible European governments or responsible European officials simply need to say
this has gotten out ofhand. There is no evidence for the suggestion or implication that however many flights
there have been, that they have all got detainees on them or that an intelligence flight is in fact engaged in some
sort of improper activity. 'In fact, just the opposite.
The implication ought to be that if there are flights, no matter how many of them there have been, that this is in
fact a manifestation of cooperation amongst our governments.
The best way to prevent terrorist attacks against any of our countries is through effective intelligence
cooperation, and intelligence activities really in this global environment can't be done by one country alone. It
can only be done through cooperation.
So the fact that there are two flights or a thousand flights, and I really don't have the details on how many there
have been, I'm making a more general point, really is a sign of cooperation and not of anything that's improper.
Q: ,So are you saying that European governments did know about these flights?
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Mr. Bellinger: No, I'm not saying that at all. I am saying, you'll recall Secretary Rice said previously that we
have conducted renditions prior to September 11. In those cases the United States brought people back to
justice prior to September lih. In cases since September lI,t there have been cases where we have transferred
an individual to another government of their nationality, or otherwise to face justice, and that in doing that we
comply with our international obligations. We assume that other governments are complying with their
intemational obligations. And we respect the sovereignty of the governments involved.
Q: So the flights are continuing? Continuing if and when they're necessary?

Mr. Bellinger: I wouldn't necessarily assume that at aU. I would note that at least despite a good deal of
digging by every journalist in Europe that the last allegation ofa rendition was something like t:hfee years ago.

Q: And this inquiry, can it affect transatlantic intelligence sharing between the U.S. and EU?
Mr. Bellinger: That's a good question. I think it can be. That's really the point that I am trying to make here,
is that this furor over renditions and really now just the furor over flights alone and the suggestion that flights
alone are somehow improper I think can ultimately and already is undermining intelligence cooperation by
suggesting that there should not even be people flying from one country to another or infonnation being shared.
This is the way we cooperate with one another. To suggest that the mere fact alone that a flight is somehow
improper I think: is a dangerous idea

Q: You are ~ying those flights were done in cooperation, and so can I, do you suggest that those flights are
continuing now without detainees? Or if there is no flights at the moment does that mean there is no cooperation
going on?
Mr. Bellinger: The idea about intelligence activities is that one does not confirm or deny thein.
I will tell you we looked very closely, at the time of Secretary Rice's trip in December, at the individual
allegations because so many - not only in their breadth but also the individual aIlegations of a rendition here or a
flight there· so many of the individual allegations were incorrect,'that the U.S. government thought very
seriously about trying to deny the individual allegations because so many of them were wrong. But we
ultimately concluded, as I thiOk all governments have concluded, that it's simply not possible to get into the
business of confmning or denying specifics.
,The result, unfortunately, has been damage to the reputation ofthe United States because people have assumed a
number ofthings that are simply not happening. But I cannot comment on the specifics. I simply say that people
should not assume that the fact alone of a flight is in fact something improper.
Q: But sir, the problem the~e is that we, take your word for it, but you know just as well as I do precisely that

the activities of the CIA and others tend to be secret. So you have a problem here. You can say as much as you
want that there are no detainees on these flights and what have you, but it is your word against others. What is a
little bit strange in your argument is that you are admitting that there are a whole bunch of flights. You are
telling us that we should not assume there are detainees on all these flights, but you cannot exclude it either.
Mr. Bellinger: That's why it's a very difficult situation for the United States.

I think that any reasonable person looking at the facts that are actually out there would conclude that these
allegations or a suggestion that these flights have all got detainees on them, or really, that any more than an
extremely small number from a number of years back have been involved in renditions. I think any reasonable
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person looking at those facts would conclude that the allegations to the contrary are just simply overblown.
But you're exactly right. It's very difficult for us to try to combat these suggestions. That's why we have asked
for responsible voices to simply try to calm things down a little bit. It's very difficult to try to prove a negative.
People have periodically asked us, well, prove to us what is on every single flight. Come up with a list of every
flight" tell us what was involved. Well, I think by my merely stating that, I think you will realize that's just not
possible to do. Intelligence activities by their nature are simply carried out in secret. That's because you don't
want to tell the al~Qaida people that you may have captured their material or that you are engaged in
cooperation. That's simply something we cannot carry out publicly..
Q: Will you cooperate with the European Parliament's inquiry into this, will officials actually.... ?

Mr. Bellinger: Yes, I will meet with them myself. as will other senior officials at the State Department. Of
course, we will do it on an unofficial basis. There's not any official jurisdiction by the committee over the
United States. but we recognize that the questions are out there. We are not trying to dodge the questions., We
recognize that they're there. We are limited in what we can say for the reasons that I've explained, but we'll be
happy to meet with them when they're in Washington.
'
Q: You are saying that renditions serve a useful purpose. Why is there a need to send detainees to Egypt or
Syria or Uzbekistan to be interrogated? What is the added value in that?

Mr. Beninger: Thank you for that question. I've certa4Uy regularly heard "what possible reason could there be
for a rendition except to send someone off to be tortured." That's an unfortunate statement.
One, as I've said I think clearly, renditions can be used to bring someone back to justice correctly as the United
States has done, as European governments have done. and those have been upheld by the European Court of
Human Rights. But in other cases let's assume a country finds a member of al·Qaida who is trying to cross into
that country, cross their borders. They picked them up for an immigration violation and they're prepared to
expel them, but they notify other countries such as the United States that they have picked this person up and we
find that they're in fact a national ofsome third country and that third country says ''that is one of our nationals,
we are prepared to take 'that individual back." They may be wanted in connection with a terrorist act. They may
be a suspect as part of a terrorist cell. They say we're prepared to take that person back but we don't have an
extradition treaty with the first country, and moreover, we don't have any way ourselves of bringing that person
back.
The question then becomes really for the international community, is it better to simply let a person suspected of
terrorism who has been picked up somewhere around the world, simply disappear to perhaps commit a terrorist
act again? Or in terms of the overall fight against terrorism, is it better to have the person returned to the
country of their nationality or to a country in which they're wanted?
For better or worse the United States is the country that has got the resources to be able to move people from
one country to another, but that's the reason why, why a rendition may be a useful too) in fighting terrorists.
Q: Why can't the CIA interrogate them itself? Ifyou bring them to Guantanamo Bay, there are not Americans
in Guantanamo Bay. so why do you send others to Syria and Uzbekistan?

Mr. Bellinger: To ask the question is to answer it. As you know, we're not looking to have more people in
Guantanamo Bay. And in a number of these cases, they may not have actually committed a crime against the
United States. It may be that we find that it is a member of al.Qaida who is wanted in some other
country. Another country may have notified us that an individual is wanted in connection with a terrorist act or
6

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a part of a terrorist cell.. So~ no, the United States would not want to bring yet another person to Guantanamo
Bay or to bring them into the United States.
Q: But some of the renditions have involved people who are, in the case ofMaher Arar, for example, he was a
Canadian citizen. He was flown off to Syria. The case of Khalid al Masri~ which is still being investigated, he
was a Gennan citizen. How can you justify that? If they are wanted, why can't they be returned to the country
"where they are naturalized and the country where they are living?
Mr. Bellinger: I can't comment on all of the specific cases. I think in the Arar case you should check the
facts. I think he was simply expelled, actually, for an immigration violation from the United Sta~es and -

Q: But he was taken to Syria and tortured.
Mr. Bellinger: That's what he says. I don't know what the facts are in that case. He was expelled from the
United States. I think a rendition in that context would be a mischaracterization.
Q: You said intelligence sharing is very important with your European partners. How come that -some of yoUr

European partners actually deny that there have been CIA flights? Like NATO Secretary"General de Hoop
Scheffer~ EU Terrorism Coordinator de Vvries recently at the European Parliament
Mr. Bellinger: Well, I don't know what he has said specifically.

Overall~

obviously there is cooperation that
may involve flights carrying an analyst or forensic infonnation from one country to another. In some cases
people may take commercial flights~ but in other cases if one has a private airplane, that's a much more efficient
way to carry U.S. or foreign officials or infonnation around than using a commercial aircraft.
Again~ my point is the mere fact of an airplane operated by an intelligence service is no different from a military
aircraft or a law enforcement aircraft. The suggestion that an intelligence flight is somehow improper is~ I think.,
a wrong suggestion.

Q: But they actually denied that there had been any CIA flights, whereas you admit this.
Mr. Bellinger: I'm not aware of what they've said. I have not seen anybody deny that there have been any CIA

flights.

Q: .Can I go back to the allegations; the latest allegations from the Parliament are that there have been flights
with a police mission that have not been declared to international security authorities. Now I don't know how it
works~ but in their eyes it seems like a serious breach of rules. Can you clarify how this works? If there's a
CIA-operated plane, what does it have to do to be able to land in any country?
Mr. Bellinger: The laws governing air travel get to be quite complex. But we certainly are complying with our
international obligations with respect to flights.

Q: If a plane lands at a military base, an American military base, d~es it have to be declared?
Mr. Bellinger: I think the facts may be, it may vary from country to country in tenus of practice and whether
it's a state flight or a civilian flight. As I said~ rules can be quite complex~ but we comply with our international
obligations and as Secretary Rice has said, we respect the sovereignty of our European partners.

Q: Have you given any specific guarantees to any governments in the ED that rendition hasn'1 taken place on
their territory?

Mr. Bellinger: We obviously get questions about renditions, both publicly and privately all the time, and we do
7

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·UNCLASSIFIED
what we can to answer the questions. We don't publicly confinn or deny intelligence flights, but
obviously in regular conversation with European governments.

we are

Q: Can I ask a question on the definition oftorture? Because Amnesty says that the American. Administration
policy is that sleep deprivation, making people stand up for long periods of time, and pouring water over them
to simulate drowning sensations, that these are not forms oftorture. Is that your viewpoin~ the American
Administration's viewpoint?

Mr. Bellinger: Well, two things. One, I'm not going to comment on specific techniques. We've made clear
that we don't comment on specific techniques. The definition oftorture, though, is something that is defined in
both the Torture Convention and in our criminal laws and we abide by those definitions and the definition is
conduct that's intended to inflict severe physical or mental pain. We abide by that defmition.
In addition, as you know, we recently had enacted the Detainee Treatment Act, also known as the McCain

Amendment, which also prohibits a lesser form ofactivity which would be anything that would inflict cruel,
inhuman, or de~ading treatment.
.
Q: But don't you think, until you give concrete examples that you can just simply say: "well, we don't agree

with torture," but you never really define what kind of things are acceptable and what aren't. That's the big
problem. Because, surely, are you almost implicitly admitting you do practice these techniques because you're
refusing to deny that these are'torture?
Mr. Bellinger: We have, again, thought hard about trying to address specific allegations and concluded, despite
the difficulties that you mentioned, that it's just simply not appropriate to go confinning, denying, or analyzing
specific techniques.
We do expect that in the next several weeks that the Defense Departm~nt wil~ be releasing the revised field
manual on interrogation techniques. This is the one that's referred to in the McCain amendment and we expect
that that will be out sometime shortly.
Q: What is it not appropriate to comment on specific techniques? Pm not a lawyer, but isn't that what the law
is about, about practice?
'

Mr. Bellinger: Surely you can understand that ifwe state precisely what it is that the interrogation techniques
are that would be used against members of al-Qaida then they would train against them. And so our military has
concluded that it's just simply not appropriate to provide a road map for the techniques that are being used.
At the same time we also think that it's not appropriate to confinn or deny and get into the specific business of
saying yes, we do this 'but no, we don't do that.
Q: Ifthere has been such a fuss about this whole issue. Assuming that your assumption is that most of these
flights are not for rendition, wouldn't it be more sensible just to say, transparently, that X percentage of these
1,000 flights would involve rendition or only eight or nine cases and that's it, because, like it or not, the
impression has got about, the statement of Dick Marty of "gangster tactics" by the CIA. Wouldn't
transparency, in this case, be the best course?

Mr. Bellinger: We've been trying to do that as best we can. One of our purposes in trying to dampen this
really hyperbolic speculation about flights is to say exactly what you've just said which 'is that while we have
said that we conduct, have conducted renditions on a periodic basis, the suggestion that there have been large '
numbers is just simply incorrect, but we just can't get into the business or providing exact numbers.
8

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UNCLASSIFIED
Q: You said early some allegations were dangerous. Can you elaborate on what you mean by dangerous?
Mr. Bellinger: By dangerous I mean in order to fight terrorism, which we all know that al-Qaida has conducted
and is planning additional attacks against all,of our countries; the best way to prevent those attacks is for there to
be cooperation amongst all ofour countries. No country can do it by itself. It's important for information to be
shared between Europe and the U~ted States and vice versa. And the suggestion that a mere fact of a flight
alone, which in fact may simply be bringing people to talk to one another or to share evidence, and to suggest
that the mere fact ofa flight is improper will certainly dampen that sort of cooperation.

It may be that next time the United States will be reluctant to bring people to Europe or to share information if
the suggestion is that any flight is engaged in improper activity, so that's what I mean by dangerous. Dangerous'
to the extent that it may undermine public support for the intelligence cooperation that really is necessary to
protect all of our societies.
Q: Do you feel like your policies are working? You have referred to concerns Europeans have, and others,

regarding Guantanamo Bay, these rendition flights. Are you winning the war against terror? [inaudible]?

Mr. Bellinger:

We collect, because we have very good intelligence services, we share an enormous amount of
information with Europe. We do not obviously talk about the specific information that we collect and that we
share, but certainly information that is collected does, we think, thwart further intelligence attacks.

Are we being successful in addressing these concerns? These are very difficult issues. We understand, as I
said, we're acutely aware of the concerns that have been raised both about Guantanamo and about renditions,
and part of what we're doing is simply trying to answer the questions as best we can. We understand that unless
one can provide details that it may not be satisfying, but thafs simply the nature of intelligence activities.
Q: You mentioned earlier the discussion of the status of prisoners at Guantanamo. Can you explain why is it
that they are not treated as prisoners war? And what is their status?

of

Mr. Bellinger: Their status is, as you know we refer to them as ~~imlawful combatant" which is not, and this is
really quite important and one of the reaSons that I try to do roundtables like this. The term "unlawful
combatant" is not a term that was invented by the Bush administration. It's a term that's been around for 40 or
50 years, widely acknowledged in all of the treatises on the laws of war and about p~soners of war. It refers to
individuals who engage in combat but do it in an illegal way. So this is an accepted term.
One problem overall in this whole area is that there are very, very f~w people who are knowledgeable about
international humanitarian law or about the laws of war. Most lawyers and others in our societies have grown
up, because none ofus have really been at war for 50 years, grown up in a civil or criminal law system, so
they're used to those systems. But in fact the term "unlawful combatant"'is one that's been regularly used in the
academic literature.
Why are they not treated as 'a prisoner of war? Under the Geneva Conventions it's quite clear. The <.Jeneva
Conventions apply, it says irl Article 2 of the Convention, between Higp Contracting Parties to the
Convention. The Geneva Convention is essentially a contract amongst states that says ifwe go to war with one
another and we have signed the Convention, we will treat each other in a particular way, assuming that we've
signed the Convention and that we meet the tenus of the Convention.
Al-Qaida, obviously, is not a signatory to the Convention and so it's not a beneficiary of the Convention
because it's not a High Contracting Party.
Furthermore, the term "prisoner of war" is actually a defined tenn in the Convention. People accuse us of
9

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..

UNCLASSIFIED
violations of international law, but actually ifone simply reads the tenns ofthe Geneva Convention it says a
"prisoner of war" is a member of a national army who carries arms openly, wears a uniform recognizable at a
distance, and respects the laws and customs of war.
.,
.Al-Qaida, in addition to not being a party to the Geneva Convention, doesn't fit any ofthose definitions.
Members ofthe Afghan army or the Taliban. Afghanistan was a signatory to the Geneva Convention, but they
. still didn't fit the definitions of a "prisoner of war", so they don't fit the definitions of the treaty.
Q: If they don't fit the defmition, what are the implications for your treatment?
Mr. Bellinger: What are the implications for treatment? Then that they are not entitled to the privileges of

being a "prisoner of war". Those privileges are provided to people whose countries are party to the Convention
and who have followed the Convention. What the United States has said, because we are absolutely committed
to the Geneva Conventions, we certainly want, we have applied them, for example, in Iraq, which is a more
traditional war. We expect our forces, if captured by a Contracting Party to the' Geneva Conventions, to be
treated in accordance with the Geneva Convention.
So we have said that we will treat the detainee~ consistent with the principl~s ofthe Geneva Convention, but
there are numerous things in the Convention that say that prisoners ofwar are entitled to that we think would
not be appropriate for members of alwQaida, such as, normally, as you know I think from 'watching television,
that in a normal prisoner of war camp people are allowed to continue to organize themselves hierarchically, to
wear their uniforms, and we think that would not be appropriate for members of al-Qaida~
Q: You mentioned people talking about alternatives to Guantanamo. What alternatives do you see?
Mr. Bellinger: Thank you. les a good question.

We really are aware of these concerns. We have been looking for good alternatives. We welcome the
assistance of the international community in trying to see this as a common problem.
The United States 'certainly sees that in detaining individuals who were picked up by coalition forces, who had
been trained in al-Qaida training camps, that we are doing not just a service for the United States, but for all
countries who might have been subject to attack by these same individuals. 'So we have not seen other countries
, volunteering to be helpful, but certainly we could appreciate assistance rather than simply calling for the closure
of Guantanamo.
What we have bel'?n trying to do is to reduce the nwnbers by releasing people who we think would not return to
the fight. Now as you've heard us say before, about ten percent of the people who have been just released
outright have gone right back to fighting again. Others we have transferred to other governments for further
detention. As you know we've reached agreements recently with Afghanistan to return a large nuinber to
Afghanistan, but we are trying very hard to reduce the numbers.
People say, well why can't you prosecute them criminally? The United States on September 11 th did not have
criminal laws that exerted jurisdiction in most cases over foreign nationals who were simply training in a
training camp in Afghanistan. We had jurisdiction over our own nationals. We had jurisdiction over people
who were planning specifically to commit crimes against the United States. But people very glibly say, well if'
you think these people have done something wrong; why don't you try them in your federal courts? But
remember, there has to have been a criminal statute.
This is what actually Europeans themselves are finding. When we have returned the dozen or so detainees to
10

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,

,

UNCLASSIFIED
European countries, none of them found that they actually had violated specific criminal statutes because none
ofour countries really had a weB developed criminal framework that Now smce September 11, more criminal laws have been put on the books to combat this sort of behavior. but in
most of these cases people who are not U.S. nationals or who are not plotting particular crimes against the
United States had not violated U.S. criminal laws.
For those who were gener3lly part of a criminal conspiracy of being part ofal-Qaida or were fighting us on the
battlefield and committed war crimes, people like that may be tried in our military commissions. But to answer
your question, the alternatives are really very, very difficult. We would welcome good suggestions from other
countries as to what should be done with these individuals rather than to simply say "Guantanamo should be
closed."
Mr. BeDinger: Thank you all for coming.

####

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REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED

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.......

RELEASED IN FULL
NotesTele
Josrua L Doros;n 09/06/2006 06:13:59 PM From DB/lnbox:
cable

Joshua L Dorosin

Text:

UNCLASSIFIED
TELEGRAM

september 06, 2006

To:

ALL DIPLOMATIC AND CONSULAR POSTS - NIACT IMMEDIATE

origin:

L

From:

SECSTATE WASHOC (STATE 146996 - NIACT IMMEDIATE)

TAGS:

PHUM, PREL

Captions: None
Subject:

PRESIDENTIAL SPEECH ON DETAINEES IN THE WAR ON TERROR

Ref:

None

1. (U) This is an action request.

please see paragraph 6.

2. (u) on september 6, president Bush delivered a major
speech addressin~ the issue of detainees in the war on
terrorism. In hlS remarks, the president announced that 14
leaders and operatives of al Qaeda have been moved from
classified locations, where they were being held and
questioned by CIA, to DOD custody where they can be brought
to justice for their crimes. The ICRe has been notified
and will have access to them at ~uantanamo. NO detainees
remain ;n CIA custody. This group included those believed
to have orchestrated the 9/11 attacks and the attack on the
u.s.s. Cole, and those believed to have been involved in
the bombings of our embassies in East Africa.
3. (U) The president explained that we are working with the
u.s. con9ress on legislation that we hope will soon allow
us to brlng these individuals to trial before military
commissions. He described the need after september 11 to
take the offensive to deny terrorists safe haven and kill
or capture al Qaeda members: explained the CIA program
created after september 11 to detain and interrogate the
most dangerous· terrorists' captured by the United States
during the ongoing armed conflict with al Qaeda, who had
unparalleled knowledge about terrorist networks and their
plans for new attacks; and demonstrated the critical ways
that this program has thwarted further attacks both at home
and abroad. He reiterated that he hopes eventually to
close Guantanamo, and called on other countries to work
with us toward this end, urging nations to take back their
nationals at Guantanamo who will not be prosecuted by
military commission. He emphasized that we are a nation of
laws. and that we will continue to work with the in
ternat;onal community to construct a common foundation to
defend our nations and protect our freedoms.
4. (u) In tandem with the president's speech, the
Department of Defense today issued two significant new
detainee-related instruments: a new Directive on detention
page 1
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED

.....

;

~.~

...

~

...

L0080

UNCLASSIFIED
NotesTele
standards and a new Field Manual on interrogation. 000
issued the Directive and Field Manual after a comprehensive
review to ensure consistency with u.s. and international
law, including the Supreme court's decision in the Hamdan
case. By law, DOD personnel are only permitted to use
those interrogation techniques listed in the new Field
Manual, the contents of which are entirely public.
5.

The president's speech, draft military commission
DOD detention p'olicie~ repre~ent a
maJor new lnltlatlve on u.s. detentlon polley. Wlth these
announcements, the Administration intends to work with the
congress on new military commission legislation and to
consult on this and other new programs to ensure that the
CIA can continue to playa vital role in collecting
intelliQence about new attack plans, newly-developed .
capabillties, and members of terrorist organizations. This
initiative also creates an opportunity to further u.s.
diplomatic efforts to explain u.s. detention policies, seek
consensus on the need to recognize the unique challenges
created by the war on t~rrorism, and develop a
'
com~rehensive and durable framework for the conduct of this
conflict into the future.
(u)

le~islatio~,.a~d ~ew

6. (U) ACTION REQUEST: Drawing from the points below, .posts
are directed immediately to engage with host governments
and local media to pursue this initiative at all levels.
Para 7 contains public diplomacy themes. Para 8 contains
talking points. par~ 9 contains selected questions and
answers. In addition to these talking points, posts should
·review and draw as necessary from the full text of the
president's speecn (available at the white House website).

7. (U) PUBLIC DIPLOMACY THEMES

-- In a major speech today the president announced that 14
leaders and operatives of al Qaeda have been moved from
classified locations, where they were being held and
questioned by CIA, to DOD custody where they can be brought
to justice for their crimes. This group included those
belleved to have orchestrated the 9/11 attacks and the
attack on the u.S.S. cole, and those believed to have been
involved in the bombings of our embassies in East Africa.
-- The ICRC has been notified and will have access to them
at Guantanamo. NO detainees remain in CIA custody .
.-- After the september 11 attacks, we took the offensive to
deny terrorists safe haven and kill or capture al Qaida
operatives. we had many successes, some publicly known,
some not.
Information from captured terrorists is one of the most
vital tools we have to stop new attacks. Information from
captured terrorists has saved lives in the United S~ate5
and overseas.

~-

-- we created a program, run by the CIA, to focus on a
small number of the most dangerous terrorists and
operatives, many of whom we believed knew the terrorists'
secrets about potential attacks -- secrets that would help
us save innocent lives.
.
page 2

UNCLASSIFIED
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lTNCLASSIFIED
NotesTele
-- The CIA program for tietaining and questioning these
high-value terrorists has been conducted professionally and
effectively. The Department of Justice reviewed the
conditions of confinement and the questioning procedures
and advised that the program complied with the U.S.
constitution, laws, and treaty obligations.
-- The Supreme Court, in June in the Hamdan case, held
that military commissions to try these terrorist for their
offenses against the laws of war could not go forward
without additional legislation. The Court also held that
common Article Three of the Geneva conventions applies to
the us war against al Qaida.
-- Common Article 3 of the Geneva Conventions describes in
vague and undefined terms now the US should treat captured
terrorists; leaving us personnel uncertain on where the law
draws the ine.
-- Accordingly, the president has sent legislation to
congress to (1) make clear the standards for questioning of
captured terrorists so that us personnel can effectively
and lawfully obtain the 'intelligence we need from
terrorists, and (2) authorize tne creation of military
commissions as an effective and fair means to try
terrorists for their crimes.
-- This is part of the Administration's broader effort to
with congress to obtain additional authorization for'
the tools this ,and any future Administration will need to
fight and win the war on terror.

~ork

-- The president has made clear that the united states will
move toward the day when the. United State can close the
detention facility at Guantanamo say. America has no
desire to be the world's jailer.
-- We are engaged in a global struggle -- and the entire
civilized world has a stake in its outcome. America is a
nation of law. AS the Administration works with congress
to stren9then and clarify our laws at home, the United
states wl1l continue to work with members of the
international community who have been our partners in this
struggle. .
-- one critical area of discussion is the need for a
durable and effective framework for the detention and
interrogation of those captured during this conflict.

-- We believe that the our laws and policies, together with
the legislation proposed by the president, provide a
comprehensive and durable legal framework for the
interrogation and treatment of detainees in these kinds of
conflicts.
-- This comprehensive framework is'fully consistent with
u.s. domestic and international law requirements. Indeed,
this framework is more than consistent with Common Article
3 of the Geneva conventions.
-- We are ready to work with our partners around the world
to construct a common foundation to defend our nations and
protect our freedoms.
page 3

UNCLASSIFIED
L0082

lTNCLASSIFIED
NotesTele
8.

(U)

TALKING POINTS

Key Elements of President's Speech
-- On September 6, President Bush delivered a major speech
addressing the issue of detainees in the war on terrorism.
-- In his remarks, the president:

-- announced that 14 leaders and operatives of al Qaeda
have been moved from classified locations, where they were
being held and questioned by the CIA. to DOD custody where
they can be brought to justice for their crimes;
-- stated that the ICRC has been notified and will have
access to them. and that no detainees remain in CIA custody:
-- explained the need after september 11 to take the
offensive to aeny terrorists safe haven and kill or capture
al Qaeda members;
-- described the CIA program created after September 11 to
detain and interro9ate the most dangerous terrorists
captured by the unlted States during the ongoing armed
conflict with al Qaeda, who had unparalleled knowledge
about terrorist networks and their plans for new attacks;
and
-- demonstrated the critical ways that this program has
thwarted further attacks both at home and abroad.
-- This program has been focused on a very small number of
the most dangerous,terrorists.
-- The president indicated that we will consult with
Congress on this and other programs to help us gather vital
intelligence to prevent terror attacks.
,
-- The president also indicated that the Administration has
provided the congress with draft military commission
legislation, and called upon the congress to act quickly on
that le~islat;on in order to develOp new military
commiSSlons consistent with tne supreme court's decision in
the Hamdan case.
-- The President also laid out key facts regarding
Guantanamo Bay and its future. He described how
approximately 315 of approximately 760 detainees have been
returned to other countries, and asked other countries to
work with us to transfer out as many of the remaining
detainees as possible in order 'to eventually close
Guantanamo.
-- The President emphasized that we are a nation of laws
and will continue to work with the international community
to construct a common foundation to defend our nations and
protect our freedoms.
page 4

UNCLASSIFIED
.

~

.

:..;::G

>'l', ... .;

•• _

.' . . . . ~.

_lo. •

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lTNCLASSIFIED

Review of u.s. positions

NotesTele

-- We recognize that the international community has not
always agreed with u.s. positions in the war on terror.
-- we believe that we are in a state of armed conflict with
al Qaeda, the Taliban, and their affiliates following the
attacks of september 11, on the U.s:s. Cole, and on our
embassies in East Africa.
-- In our armed conflict with al Qaeda, the Taliban, and
their affiliates, it is the law of war that applies.
-- These individuals have been determined to be unlawful
enemy combatants who are not entitled to prisoner of war
status. As in other conflic~s. under the law of war they
may be detained until the end of hostilities.
"
Treatment of CIA Detainees Transferred to Guantanamo
--:- The presi"dent has now announced the transfer of 14
individuals from the CIA to DOD custody at Guantanamo for
possible prosecution by military commissions, and that no
detainees remain in this CIA program.
-- ThiS disclosure reflects" the president's intention to
bring these individuals to justice.
-- The President carefUlly has considered what aspects of
program may be disclosed, consistent with national
security. we are not confirming, among other things, site
locations, interrogation techniques, or total numbers of
individuals who may have been detained in this program, as
" these are operational details that would provide valuable
information to al Qaeda and could have an adverse impact on
the effectiveness of CIA'S future operations.
~he

-- The detainees transferred include Khalid Sheikh Mohammed
(nKSM") and Abu zubaydah, two of the most notorious members
of al Qaeda.
-- Interrogations of the 14 individuals have yielded vital
intelligence that we have shared with our allies, and
stopped numerous plots, including in Karachi l Heathrow
Airport and the canary Wharf in London, and ln the united
States.
-- At Guantanamo, these individuals will receive the same
standard of treatment as all other detainees at Guantanamo.

-- The ICRC will be allowed to visit these individuals.
are in contact with the ICRC on this issue.

we

-- These detainees will appear before a combatant status
review tribunal to confirm that they are properly held as
enemy combatants in accordance with the same standards that
govern all other 000 detainees at Guantanamo.
These detainees will have access to counsel, will be
page 5

UNCLASSIFIED
.

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L0084

lTNCLASSIFIED
NotesTele
afforded the opportunity to worship. and will be able to
write and receive mail from their families and friends, to
the same extent as other detainees in DOD custody.
-- All requests by foreign officials to meet with these
detainees will be considered using the existing OOD policy
on foreign government access to Guantanamo detainees.
-- These individuals will be housed in a separate
high-security facility for security reasons.
Military Commission Legislation
-- The president announced that the Administration has
submitted draft legislation to create a strong and
effective military commission structure.
-- In the wake of the supreme court decision in the Hamdan

case, we are working with Congress to create a process for
prosecuting unlawful enemy combatants that ensures
terrorists can be brought to justice; recognizes the nature
of the enemy and the battlefield; protects our national
security interests; and provides the accused a full and
fair trial.
.
-- This legislation is the product of close consultation
with members of congress and with military lawyers in all
branches of the armed services.
-- This legislation clarifies application of Common Article
3 of the Geneva conventions to our conflict with al Qaeda.
-- The vagueness of some terms in common Article 3 makes
them susceptible to uncertain and unpredictable application.
-- The President has asked congress to make these ambiguous
terms clear to provide guidance to our-personnel. The bill
also amends the War crimes Act to eliminate the vague terms
while still criminalizing the most serious violations of
common Article 3.
-- The Administration looks forward to continuing to work
with congress to ensure that we have the necessary tools to
question and prosecute terrorists, and that the men and
women on the front lines in the war on terror have clear
rules that are defined in law as they work to protect us.
BEGIN NOTE: posts should be aware that there will likely be

particular interest in the Administration's proposal to
interpret vague elements of common Article 3 by equatin~
.the detention standards contained in common Article 3 wlth
the standards of the Detainee Treatment Act and by amending
the war crimes Act to criminalize the most serious
violations of common Article 3. END NOTE
A Durable Framework for oetention
-- The President has expressed his desire to work with
members of the international community who have been
page 6

UNCLASSIFIED
L0085

UNCLASSIFIED

partners in

~his

NotesTele

long struggle.

-- One critical area of discussion ;s the need for a
durable and effective framework for the detention and
interrogation of those captured during this conflict.
-- we have learned that while the traditional rules and
procedures of criminal justice are vital, they are not
always sufficient to deal with this type of enemy. The law
of war is an appropriate body of law to confront the threat
posed by an organized enemy with global reach and an
ability to inflict mass casualties.
.
-- AS a matter of international law, these terrorists are
unlawful enemy combatants to whom the law of war applies.
In the Hamdan case, the u.s. supreme Court recently
confirmed that the law of war applies, when it ruled that
Common Article 3 of the Geneva conventions applies to our
conflict with al Qaeda.
-- we recognize that detention in the war on terror has
been controverSial, but over the last five years we have
made numerous changes to our policies and to the legal
framework governing these policies.
-- In addition to the military commission legislation
announced by the President, congress in 2005 enacted the
Detainee Treatment Act, and our Defense Department has now
issued a new Field Manual and Detention Directive to
provide clear rules for the detention and interrogation of
all individuals detained by the Department of Defense.
-- we believe that these laws and policies, t0gether with
our .proposed legisla~ion, provide a comprehenslve and
durable legal framework for the interrogation and treatment
of detainees in conflicts such as our continuing conflict
with al Qaeda.
-- This comprehensive framework is fully consistent with

u.s. domestic and'international law requirements. Indeed,

this framework is more than consistent with Common Article
3 of the Geneva conventions -- the proposed legislation and
new 000 policies also exceed the minimum protections in
Common Article 3 in significant ways.
-- We are ready to work with our partners around the world
to construct a common foundation to defend our nations and
protecL our freedoms.
9. (U) QUESTIONS AND ANSWERS: The following questions and

answers have been selected from a more comprehensive set of
questions and answers because they are the most likely
questions to be asked of U.S. officials:

QUESTION: why is this program being disclosed now? Why is·
it being decided to bring these detainees to GTMO now,
after all this time, and disclose that we have them?
ANSWER:
-- We have long intended to disclose our detention of these
terrorists at the appropriate time, when consistent with
.
page 7

UNCLASSIFIED
~,

I· ..... • ,. _

••

L0086

UNCLASSIFIED

national security.

NotesTele

-- Most of the intelligence value of these detainees has at
this time been exhausted.
The president decided that it is important if possible
to prosecute these key terrorist leaders and operatives for
their crimes, and that military commissions are the best
forum for doing that. We have been waiting for some time
for a ruling from our courts resolving whether military
commissions will be available for this purpose.
-- The supreme Court's decision this summer in Hamdan did
two things: it invalidated the existin9 military
commissions and, by virtue of its holdl"9 that common
Article 3 of the Geneva conventions ap'plles in this
context, it also imposed vague and undefined legal
.
standards on military and intelligence operations regarding
detainees in our conflict with al Qaeda.
-- In light of that decision, we are now asking that
Congress both authorize military commissions to 'try these
terrorists, and that they address the common Article 3
issue in order to provide a clear legal 'framework for
military and intelligence operations in our conflict with
al Qaeda.

-- It is important that Congress and the public understand
the importance of these issues to our national security as
congress considers how to address them.
-- Our Administration has worked in the last two months
with members of congress on how best to respond to the
Hamdan decision, and today we submitted our proposed
legislation. We want to work with congress to enact a
durable and sustainable framework for confronting the
serious threat posed by international terrorism to our
nation's security.
QUESTION: Di~ you tell the countries who had secret
prisons that the u.s. would make this announcement? How
did they react?
ANSWER:
Few tools are more critical to our ability to fight and
win the war against al Qaeda and its affiliates than the
close intelligence relationships the united states
maintains with states allied with us in this war. Many
countries take 9reat risks in order to help us, and do so
with the expliclt agreement that the work they do will
remain secret. We will not discuss these relationships,
except to say that we could not achieve our successes alone
and we are grateful to those who have helped.
-- we have provided our allies information from this
program and they have told us of its great value in helping
prevent terrorist attacks in their own countries.
QUESTION:

HOw many detainees remain in this program?

ANSWER:
page 8

UNCLASSIFIED
...... ...
~

L0087

lJNCLASSIFIED
NotesTele
-- None. However, we expect that we will continue to
, capture key terrorist leaders and operatives in the future.
-- AS in the past, we may need to detain sucn terrorists
without disclosing their detention in exceptional
circumstances. We will not comment in the future on
whether we are holding detainees in this manner, or if so,
how many are being held. If we were to answer such
questions, the pattern of our answers over time could
reveal information that would aid our terrorist -enemies.

-- We do not expect that we would need to detain
individuals for an extended period of time without
notifying the ICRC, but we reserve the right to hold
detainees without notice to the ICRC for as long as may be
necessary.
-- We will continue to keep congress informed as
appropriate.
QUESTION: How many detainees have been in the program
since its inception?
ANSWER:
-- since the development of this program in mid-2002, fewer
than 100 terrorist detainees have been held for detention
and questioning in CIA's custody. The program was
selective: it was designed only for a small number of the
most dangerous terrorist leaders and operatives, many of
whom were believed to know information of great
intelligence value -- for example, on attack planning or al
Qaeda's capabilities. CIA officers have captured or
played a role in the capture, questioning, and transfer of
many more terrorists since 9/11, but only a very few
entered this program. The overwhelming majority of such
c~p~ured terrorists were tak~n.into detentlon by u.s.
mllltary or host country off1Clals.'
QUESTION: Why were the detainees held in'secret facilities
and not identified to the IeRC?
ANSWER:
-- These terrorists have been held under conditions that
were deemed essential to learning information they knew
about planned terror attacks, al Qaeda's senior
leadership,' and the enemy's current capabilities.
-- It is critical not to make the identities or locations
of key terrorist leaders and operatives we capture
immediately known, so as not. to alert al Qaeda to their
detention and allow a1 Qaeda to make adjustments to its
plans. It has also been important to keep operational
details of CIA's efforts, includin~ its interrogation
procedures, secret from al Qaeda, 1n order to preserve
their effectiveness.
-- Maintaining secrecy and focusing all relevant
intelligence on questioning a small number of the most
dangerous terrorists enabled us to collect information that
stopped terror attacks and saved the lives of thousands of
Americans and foreign nationals.
page 9

UNCLASSIFIED
. --''''

~

,.

~

.. ::"-..

L0088

lTNCLASSIFIED
NotesTele
-- we place significant value on our relationship with the
ICRC and on its work and rely heavily on the ICRC to ensure
important protections for our personnel.
-- Our decisions here are not intended to devalue the
important role of the ICRC. The Department of Justice made
the determination that detention in this program was legal,
and we determined that, in a small number of cases~ it was
necessary in order to obtain intelligence informatlon from
these individuals that was critical to protectinQ the
united States and its allies from further terrorlst attacks.
-- providin9 the ICRC notice of and access to these
terrorists 1S not legally required. such noti~e and access
is required under the Geneva conventions only for paws and
protected persons.
-- Even though international law provides no such right,
the united States has made clear that, as a matter, of
policy, it will provide ICRC access to al Qaeda and Taliban
detainees to the maximum extent practicable. and such
access has been denied only to a tiny fraction of such
detainees.
.
QUESTION: What legal 'authority does CIA have to capture,
detain. and question these terrorists?
ANSWER:
-- The authority derives from the u.s. Constitution,
including the President's authority as commander in Chief,
and various statutes, including the September 18, 2001
Authorization for use of Military Force and the National
Security Act.
-- Exercise of this authorit~ is also consistent with the
law of war. under the law of war, the united states may
detain captured enemy combatants until the end of
hostilities.
reviewed CIA'S interrogation procedures. which were
referred to it by CIA. and determined that they complied
with the u.s. Constitution, applicable U.S. statutes,
including the anti-torture statute, and applicable treaty
obligations. including those in the convention Against
Torture (CAT). And of course the General Counsel of CIA
also reviewed the procedures and determined that they were
1awful.
-- OOJ

QUESTION: were the detainees provided basic human
necessities during detention? what were their conditions
of confinement like?
ANSWER:
-- Yes. Terrorists held by CIA have been provided with
basic human necessities.
-- They have been held in humane' conditions of
confinement. we are not going to comment further on the
conditions under which they were held.
page 10

UNCLASSIFIED
..' ..

:..w •..

_

".t

~

''':':''';''''.~'''.-_'''''''.'.;

.'_.:r ....:--

.,,--.:

L0089

UNCLASSIFIED
NotesTele
QUESTION: The media has reported that CIA has rendered
more than 100 terrorists since 9-11, including some
individuals who were picked up due to mistaken identity.
Have all of these individuals been in the CIA program
discussed by the president?
ANSWER:

-- suggestions that we have rendered thousands or even
hundreds of terrorists to secret sites are inaccurate.
This program was selective: it was designed only for a
small number of the most dangerous terrorist leaders and
operatives. many of whom were believed· to know information
of great intelligence value -- for example, on attack
planning or al Qaeda's capab;~ities. Most of the
terrorists transported by the united states since September
11. 2001 were not part of the highly specialized CIA
program disclosed today, but were transported to their home
countries, or countries where they faced criminal charges,
or to DOD for questioning and detention as enemy
combatants.
-- we note that before we turn a terrorist over to a
foreign government, where appropriate we obtain credible
assurances that the country will take responsibility for
ensuring that the individual will not pose a threat and
will not be tortured.
QUESTION:

HOW

did you decide who to take into the program?

ANSWER:
-- This program was selective: it was designed only for a
small number of the most dangerous terrorist leaders and
op-eratives, many of whom were believed to know information
of great intelligence value -- for example, on attack
planning or al Qaeda's capabilities.
QUESTION: How many CIA detention sites exist and where are
these sites?
ANSWER:

The number of sites and locations will not be
disclosed. ·Providing locations of CIA's detention sites
would put our allies at risk of terrorist retaliation and
also betray relationships built on trust that are vital to
winning the war against al Qaeda and its affiliates.
QUESTION: why couldn't you detain them at GTMO? wasn't
it so that you could torture them?
ANSWER:

-- It was decided that it was important to keep this small,
tightly controlled effort entirely separate from DOD'S
much larger detainee operations.
-- It is also critical not to make the identities of senior
terrorists we capture immediately known, 50 as not to alert
al Qaeda to their·detention and allow al Qaeda to make
adjustments to its plans. It has also been important to
page 11 .

UNCLASSIFIED
..... ........
~

.• , '._.;i.;..

..,

~.

:J .0: '...

.••

•

L0090

UNCLASSIFIED
NotesTele
keep operational details of CIA'S efforts, includin9 its
interrogation procedures and locations of its facil'ties,
secret from al Qaeda, in order to preserve their
effectiveness.
-- These operational requirements could not be met at GTMO.
-- The United States does not authorize torture.
against u.s. law.

It is

QUESTION: what interrogation techniques were used with
these detainees?
ANSWER:
-- one of the reasons these interrogations have proved so
successful is that terrorists do not know what the
procedures are or what the limits are. Al Qaeda trains to
resist U.S. interrogatipn procedures that are publicly
revealed. we want our procedures to be clear to our
interrogators. we dontt want them to be clear to the
terrorists. Therefore we will not identify or describe
the$e procedures publicly.

-- However, I can assure you that the authorized procedures
used in questioning detainees were determined to comply
with applicable U.S. law, including u.s. treaty
obligations. They were also deemed to be safe and
effective and they were subjected to rigorous review to
ensure safety of the detainee and professionalism. CIA
personnel involved in interrogations receive hundreds of
·hours of professional training before they undertake this
mission.
-- providing further detailed information publicly about
CIA questioning will aid our terrorist enemies, allowing
them to develop and train in effective" countermeasures many terrorists are already trained to resist the
procedures in the Army Field Manual - and unnecessarily
degrade our ability to detect and disrupt terrorist attack
plans.
QUESTION: what kind of intelligence can the CIA gather
wi thO thi s program that. cannot be gathered by the mil i tary
with the Army Field Manual techniques?
ANSWER:
-- The CIA gathered life-saving intelligence from captured
terrorists who are the most dedicated to al Qaeda's cause
and the least willing to share intelligence. Many of these
terrorists had received interrogation resistance training
and were familiar with the interrogation methods publicized
in the u.s. Army Field Manual on Interrogations.
-- AS a result of this program, these terrorists have given
the united states a fuller, deeper, and more complete
understanding of their organization. Dedicated members of
the organization like these can provide unique insight into
the extreme mindset and methods of the al Qaeda
membership.
-- These terrorists have provided valuable, independently
page 12

UNCLASSIFIED

L0091

UNCLASSIFIED
NotesTele
verified and corroborated intelligence on al-Qaeda and its
terrorist allies, to include information on: members;
financing;· logistics; plots; communications; document
forgery and criminal activities; travel routes and safe
havens; and terrorist intentions to obtain and use
chemical, biological, and nuclear devices in their
attacks. Subsequent disruption of these components of al
Qaeda's network has proved invaluable in weakening our
enemy's ability to launch offensive operations.
-- Intelligence gathered by questioning detained terrorists

has been used as lead information to guide further

counterterrorist operations. It is a vital, irreplaceable
piece of the intelligence puzzle, but we still seek to
corroborate it through other sources to gauge its
reliability.
.
QUESTION; How can you say that the act of waterboarding
does not constitute torture or cruel treatment?
ANSWER;
-- we will not confirm, deny, or comment on procedures or
alleged procedures, 50 as to preserve their effectiveness.
RICE

Additional Addressees:
None

cc:

None
Distribution:
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146996
SOURCE: DISKETTE.048563
DRAFTED BY: L/PM:ADEEKS -- 09/06/2006 647-9288
APPROVED BY: L:JBELLINGER
c: PZELIKOW S/ES;O JHELLER S/ES:HKT
S/P: MWAXMAN
S/WCI: SHODGKINSON
PA: SMCCORMACK
DOJ/OLC: MEDNEY
CIA/CTC: REATINGER
page 13

UNCLASSIFIED

L0092

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NotesTele

,DOD/OGC: DBEAVER

------------------lClBBA 062132Z /38
o 062120z SEP 06 ZFF4
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE NIACT IMMEDIATE
UNCLAS STATE 146996

E.O. 12958: N/A
'TAGS: PHUM. PREL
SUBJECT: PRESIDENTIAL SPEECH ON DETAINEES IN THE WAR ON
TERROR

End Cable Text

.

.

Joshua L Dorosin 09/06/2006 06:13:59 PM
Recipient/profile Information
cable Recipients:
LO;S L Allder
.
Charles R Allegrone
Evelyn MAswad
Lara A Ballard '
pauline Bennett-Cosby
Julianna W Bentes
Ronald J Bettauer
Andrew E Bigart
John I Blanck
Evan T Bloom
David W Bowker
chip WBrooks
Catherine WBrown
Marshall L Brown
Todd F Buchwald
Jame D Bush
Michelle L Cannon
Janice Caramanica
Mary Helen carlson
Melanne A civic
Rivca S Cohn
Mary E Comfort
Maegan L Conklin
Edward R Cummings
Robert E Dalton
Himamauli Das
Ashley S Deeks
Michael J Dennis
Gordon J Dickey
JoAnn Dolan
Joshua L Dorosin
James Filippatos
Jessica Y Fireste;n
Ethan J Fleischer
Christian L Fowler
Winnie J Fuentes
Frank MGaffney
Shahnaz Gheibi

From DB/Inbox:

Joshua L Dorosin

'.

Page 14

UNCLASSIFIED

L0093

.-

UNCLASSIFIED
NotesTele

Jeffery Gibbs
Robert G Gibson
Angela D Goodlett
Katherine MGorove
David E Gro9an
Michel K GUllani
vanessa D Haas
Avril D Haines
Gwen P Hard 5
Robert K Harris
Thomas Heinemann
James G Hergen
Thomas C Herold
Julie Herr
Steven R Hill
william B Hoffman
Francis J Holleran
Duncan Hollis
Kathleen H Hooke
P~ggy A Hoyle
Thomas A Johnson
Anne Joyce
David Kaye
Mark A Kelley
Naveed J Khan
Elizabeth M Kiingi
Alice M Kottmyer
Aliza D Krichevsky
Melissa A Kronstain
John w Kropf
Jonathan P Lalley
Matthew D Lavine
Thomas v Malionek
Knute Malmborg
oenise Manning
Michael J Mattler
Michael Mattler
Mary E McLeod
Katherine 0 McManus
Theresa K Mitchell
william G Monahan
Katrice G Mueller
Kathleen A Murphy
Kenneth J O'Rourke
Emily O'connor
peter Molson
T M peay
Eric J pelofsky
Sarah E Prosser
patricia L Pugsley
Marie M Pyle
Timothy E Ramish
Eric A Rosand
Eleanor-Rowan
Christina A Sanford
Nina E" Schou
Bernard L seward
Dustin N Sharf>
Mark A simonoff
Anne Slack
Adam Msmith
vera L Smith
Judith A sprouse

Page 15

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... ..
'

L0094

......

~

lTNCLASSIFIED

NotesTele
Cassandra K Staton
David Sullivan
David B sullivan
walter R sulzynsky
Elizabeth swope
Rosemarie Taylor
Nicole C Thornton
paul s Veidenheimer
Kathleen A wilson
I
samuel M witten
-Jon G zylman
LMDS profiles/office symbols:
NO_HITS cablexpress Folders:
L-PM2
RAMISH4
Lalleyl
FrontOfficesecretary2
KAYEo2
L-PM3
Allderl
BloomET
BrooksCW2
Buchwald4
CarlsonMH2
conklinML2
DASH
Fowler3
Grogan
Haas3
L/CA
L/EAP
L/LEI2
L/WHAl
Malionektv4
MitchellTMl
RosandEA2
simonoffl
sullivanDJ2
MeronT
Hoffmanw4
Johnson
LHRRI
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HookeKHl
L/T
L/Tl
Malionektv5
Malionektv8
Wynn Teel
Mattlerl
L/PIL
Malionektv6
L/Ethicsl
L/Ethics
ACDA

page 16

UNCLASSIFIED
... .-,;.:=>...:....

.• ., .

:~"

.~

h-\

L0095

UNCLASSIFIED
Deeks, ~shley 5 ..

RELEASED IN FULL

From:

Robinson, John G

Sent:

Thursday, Febru~ry 01, 200711:41 AWl

To:

Dorosin, Joshua L; Deeks, Ashley $; Noyes, Julieta V (DRL); Petersen, Robert B

Cc:

Robinson, John G

Page 1 of 1

L- /6-~

,

SUbject: Germany orders arrest of 13 over CIA 'kidnapping'
G~rmany o~ders arrest of 13

over CIA 'kidnapping'

BERLIN, Jan 31, 2007 (AFP) - Germany has ordered the arrest of 13 people behind the alleged CIA-backed
kidnapping of a Lebanese~bom German man, prosecutors said Wednesday, in one of the best-known cases of
US "renditions" of terror su'spects. The prosecutors office in Munich, southern Germany, said in a statement that
the city's administrative court had issued the arrest warrants against people believed to be CIA agents on
suspicion of abduction and grievous bodily harm. German authorities are probing allegations by Khaled el-Masri
that he was abducted by US agents in the Macedonian capital Skopje on New Year's Eve 2003 and flown to a
prison in Afghanistan for interrogation before he was released five months later in Albania. Masri, a 43-year-old '
unemployed car salesman, has said he was drugged, questioned and tortured while imprisoned. The·case raised
tensions when US Secretary of State Condoleezza Rice visited Germany in December 2005 at the height of a
controversy over the CIA's strategy of "rendition" - flying terror suspects through European states to detention in
third ,counmes where they risk being tortured.
. ,

JQhn G. Robinson
U.S. Dept of State

EURJERA lRm. 5424)
2201 CSt. NW
Washlngtonl DC 20520
Tel.: (202) 647-3913
Fax: (202) 647-9959
This email is UNCLASSIFIED based on the definitions provided in E.O. 12958.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DAIf6f2M~ ID: 05 SEP 2008 200706444

UNCLASSIFIED
L0096

~.

-

'*

.•

UNCLASSIFIED
RELEASED IN FULL

Deeks, Ashley S
From:
Sent:

To:
SUbJect:

Bellinger, John B(legal)
Tuesday. February 06. 2007 10:09 AM
Deeks, Ashley S
.
, FW: New Spain and Portugal Rendition Investigations (to add to Italy and Germany)

FYI...
From:

Bellinger, John B(Legal)

sent:
To:

Tuesday, February 05, 2007 10:08 AM

Subject:

Judg~

.

'Kyle.sampson@usdoj.90V
New Spain and Portugal Rendition Investigations (to add to Italy and Germany)

tells Spain to declassify CIA flight papers

Wed Jan 31,1:13 PM ET
. A judge has ordered Spain's state intelligence agency to declassifY any documents it has about secret CIA flights
shuttling terrorism suspects, court officials said on Wednesday.

as

High Court Judge Ismael Moreno issued the order to the National Intelligence Center (CNI) part of an
investigation he began last year to determine whether suspects on CIA flights touching down on the Spanish
island of Mallorca were held illegally or tortured, the offiCials said.
Up to 50 people were moved across Europe in flights to jails in third countries where they faced torture and
other abuse, according to European Parliament investigators.
A Council of Europe investigator last year said Spain might have actc;:d in II collusion, active or passive," with
secret detentions and unlawful inter-state transfers..
The Spanish government has said it has no knowledge anything illegal took place in its territory. No government
spokesman was immediately available to comment on Wednesday's ruling.
.
Moreno's ruling came as a covrt in Gennany ordered the arrest of 13 people suspected of involvement in the
abduction of German national Khaled el-Masri, who says he was kidnapped and tortured by the CIA.
Kuwai~i-born

Masri testified about his ordeal to Judge Moreno in October.

Portugal probes alleged CIA flights
Mon Feb 5, 10:58 PM ET
Portugal's attorney general is opening a criminal investigation into claims that CIA flights, some of them
allegedly carrying terror suspects, made stopovers in the country, the state-owned news agency reported on
Monday.
The agency Lusa quoted Deputy Attorney General Candida Almeida as saying the investigation had "many
leads" to pursue after a Portuguese deputy at the European Parliament presented a dossier of allegations.
"Before, we had no indications (of a crime), but the complaints we have received show areas we might
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIEM BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444'

crNCLASSIFIED.

L0097

.- -

UNCLASSIFIED
explore," Almeida was quoted as saying.
Officials at the attorney general's office were not immediately available for comment. But authorities often use
Lusa to make official ~oUncements.
.
,
'
The attorney general's decision to launch a formal investigation is embarrassing for the government Last week,
Foreign Minister Luis Amado said authorities had not unearthed any evidence of CIA flights and would not
investigate the matter further.
.
A report published by a European Parliament committee last month said Britain, Poland, Germany, Italy and
other EU nations were aware ofClA flights over Europe and of "extraordinary rendition," a practice whereby
the U.S. government allegedly sends foreign terror suspects to third countries for interrogation.
It said information from Euroeontrol, the ED's air safety agency, showed that more than 1,200 undeclared CIA
flights had' entered European airspace since the Sept. 11 attacks in 2001.
Though there was no direct evidence that CIA flights had used Portugal as a stopover, the report urged the
government to continue investigating whether they had.
Ana Gomes, a European Parliament deputy, met with the attorney general last week and said she gave him
evidence that dozens of CIA planes had landed in Portugal, some of them flying to or from the U.S. military
prison for terror suspects at Guantanamo' Bay, Cuba.
'
Gomes said she collected statements from witnesses who claimed to have seen handcuffed prisoners at an
airport in Portugal's mid-Atlantic Azores Islands.
She also alleged that local authorities knew Portugal was being used for CIA flights~
A CIA spokesman de~lined to comment Monday on the allegations.

UNCEASSIFIED

L0098

UNCLASSIFIED
RELEASED IN FULL
Deeks,'Ashley S

Page I ofl

L (S'6

From:

Robinson, John G

Sent:

Tuesday, February 06, 2007 9:15AM

To:

Dorosin, joshua L; Deeks. Ashley S; Noyes, Julieta V (DRL); Petersen, Robert B; Opstrup, Kevin R

Cc:

Robinson, John G

SUbject: Portugal opens criminal Investigation into alleged CIA flights
Report: Portugal opens criminal investigation into alleged CIA flights

LisBON - Portugal's attorney generalis ,opening a criminal investigation into claims that CIA flights, some of them
allegedly carrying terror suspects, made stopovers in the country, a senior official said Monday, according to a '
news report. The investigation had "many leCld~t to pursue after a Portuguese deputy at the European Parliament
presented a 'dossier of allegations, Deputy Attorney General Candida Almeida said. according to smte-owned
news agency Lusa. "Before, we had no indications (of a crime), but the complaints we have received show areas
we might explore," Almeida was quoted as saying.

Officials at the a~orney general's office were not immediately available for comment. Authorities often use the
Lusa agency to make offiCial announcements. Ana Gomes, a European Parliament deputy, met With the attorney
general last week and said she gave him evidence that dozens of CIA planes had landed in Portugal. some of
them flying to or from the U.S. military prison for terror suspects at Guantanamo Bay. Gomes said she collected
statements·from witnesses who claimed to have seen handcuffed prisoners at an airport in Portugal's mid-Atlantic
Azores Islands. She also alleged that local authorities knew Portugal was being used for CIA flights. Last weel<,
Foreign Minister Luis Amado said authorities had not unearthed any evidence of CiA flights and would not
investigate the matter further. (AP. 2/5)
,

John G. Robinson
U.S. Dept of State.
EURIERA (Rm. 5424)

2201 CSt. NW
Washington, DC 20520
Tel.: (202) 647-3913
Fax: (202) 647-9959 '

This emaifis UNCLASSIFIED based on the definitions provided in E:O. 12958.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DA}l~/~ID: 05 SEP 2008 200706444

UNCLASSIFIED

L0099

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HUMAN R1GHTS WATCH
3S0 Fifth Avenue, 34111 Floor

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New York, NY 10118-3299
Tel:
212-29004700

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Date: ~ebt~ary' 26. 20_07
.

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Re:

MESSAGE

Dear Sir.

Please find attached a letter to the President. requesting information about people who. were
previously held in secret detention facilities operated by the Central Intelligence Agency (CIA).
Sincerely,
HUMAN R1GHTS WATCH

Cc: Condoleezza Rice. Un'ited States Secretary of State
John M. McConnell. United States Director of National Intelligence
Gen. Michael V. Hayden, Director of the Central Intelligence Agency
John B. Bellinger; Ill, Legal Adviser to 'the Secretary of State of the United States

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 05 SEP 2008 200706444

UNCLASSIFIED
L0100

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b2/26/~007 ~8:S7 FAX 212 216 1878

RRW

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UNCLASSIFIED

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RELEASED IN FULL
HUMAN RIGHTSWATOf
350 Fifth Avenue, )4li floor
New Yor\. NY 10t18-3299
Tel:
2J2-2!l0047oo.
Fax:

21a-73(H300

Email:

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February 26. 2007 .
President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

www.hrw,org

Dear President Bush:

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I am writIng to request Information about pe9ple who were previously
. held in secret detention facilities operated by the Central Intelligence
AgencY·(CIA). SpeCifically~ I ask that you disclose t~e Identities, fate,
and cun-ent whereabouts of aU prisoners held for any perlo4 Qf time
at facilities operated or controlled by the CIA since 2001. In addition.
for any such prisoners who were.transferred to the custody of another
governm~nt, I ask that you disclose the date and location ofthe

transfer.

I would like first to express Human Rights Watch's strong concern
over the CIA's use of secret prisons to hold people suspected of
involvement in terrorism. By holding such people in .
unacknowledged, incommunicado detention, the United States

violated fundamental human rights norms, in particular. the
prohibition on enforced dlsappearance.t .
Human Rights Watch recognizes that some terrorism suspects may
have committed serious crimes that merit the sanction of
incarceration. The decision to Imprison such persons must be taken
in accordance with legal processes, however. If such persons are
indeed implicated in terrorist crimes, they should be charged and

prosecuted. not subject to enforced disappearance.
I would note that, to date, your administration has concealed nearly
alt information regarding persons imprisoned by the CIA since 2001.
tn a televised speech in early September 2006, you did acknowledge
that the CIA had been secretly detaining suspected terrorists in
fatUities outside of the United States. But while you announced that
14 people vyho

had preViously been in CIA detention had been

'See International Convention fortne Protection of All Persons from Enforced Disappearance, adopted by
the UN General Assembly on December 20,2006, opened for sigmiture on february is, 2007. Although the
newly adopted convenl1on has yel til enter Into force. its definItIon of enfolced disllilpearancil is
com;illtel\lwill'. definitions contained in 11 number I>f cllnitf intemlltil>na\ lnstrum1.Ult~;, Human Rights
Walch notes thatthe United States was not among the 'i1 countrles thatsigneli the convention.

~n ~if~m ~l'lWlNoA Olb~'I;Ft.o5ANGELa ''''''M~~' N~YOAIC

REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ill: 05 SEP 2008 200706444

,

• SAHFRANCISCO • TOltONTO •

U l"1CLAS~IFIED

~ASH'NGTON

L0101

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"@ffiCLASSIFIED

transferred to the US detention facillties at Guantanamo Bay-saying that with those
transfers there were no more people in CIA custody-you said nothing about the fate
orwherea'bout~ of other persons who were believed to have been detained by the
CIA.
It Is beyond dispute that more than 14 people were imprisoned by t~e CIA at some
point prior to September 2006. Indeed,' in April 2006, just a few months before your
speech, Director of National Intelligence John Negroponte publicly acknowledged
that the CIA was holding some three dozen persons in detention.
.
Given the close secrecy surrounding the CIA's detention practices, Human Rights
Watch does not believe that it has information aQout every person who, since 2001,
has been held in CIA detention. But based on accounts from former detainees, p~ess
articles. and other sources, Human Rights Watch has put together a list of 16 people'
whom we believe were once held in CIA prisons and whose current whereabouts are
unknnwn. We have also tompi\~d a s~parate Ust of 22 people who were possibly
noce held in CIA prisons and whose current whereabouts are also unknown. .
The following people-whose name, nationality. and place and date of arrest are
provided, where known-are believed to have once been h~ld in secret CIA prisons:
1:lbn at-Shaykh at·Ubi (Ubyan) (Pakistan. ufo!?
2. Mohammed Omar Abdel-Rahman (aka AsadaUah) (Egyptian) (QueUa. Pakistan,
2/0',)
.
3. Vassir aHazeerj(Algerian) (Lahore, Paldstan, 3/ 0 3)
4. Sulelman AbdaUa Salim (Kenyan) (Mogadishu, Somalia, 3/ 0 3)
5. Marwan al-Adeni (Yemeni) (approximately 5/ 0 3)
6. Ali Abd a\ R?hman a\ Faqasi a\ Ghamdi '(aka Abu Bakfa\ Azd1) (SaudO (Medina, '
Saudi Arabia, 6/03)
,
7. Hassan Ghul (PakistanO (northern Iraq, 1/04)
8. Ayoub ai-Ubi (Libyan) (Peshawar. Pakistan, 1/04)
9- Mohammed al Afghani (Afghan born in Saudi Arabia) (Peshawar, Pakistan.
5/ 0 4)
10: Abdul Basit (probably Saudi orYemenj) (arrested before 6/04)
11. Adnan (arrested before 6/04)
.
12. Hudeifa (arrested before 6/04)
13. Mohammed Naeem Noar Khan (aka Abu Talaha) (Pakistani) (lahore, Pakistan,

71°4)
14. Muhammad Setmarian Naser (Syrian/Spanish) (QueUa, Pakistan. u/OS)
15. Unnamed Somali (possibly Shoeab as·S~ma,li)
16. Unnamed Somali (possibly Rethwan as-Somali)

" By some accounts, aI-lib I was transferred from OA custQdy to Libya In early 2Q06, but this has not been confirmed.

2

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In addition. the following people may have' once been held in secret CIA prisons:
1. Abd al-Hadi aHraql (presumably,lraqi) (1/02)
2. Anas al-Liby (lIbyan) (Khartoum, Sudan. 2/02)

3. Retha al-Tunlsl (Tunisian) (Karachi. Pakistan. early- to mid-2002)
4. Sheikh Ahmed Salim (aka Swedan) (Tanzanian) (Kharadar, Pakistan, 7/02) ,
5. Saff allslam el Masry (Egyptian) (~ankisl Gorge, Georgia, 9/02)
6. Amin al-Yafia (Yemeni) ,(Iran. 2002)
7. _ al-Rubaia (Iraqi) Oran, 2002)

a. Aafia Siddiqui (PaldstanQ (K'arachi. Pakistan. 3/03)
9. Jawad al-Bashar (Egyptian) (Vindher, Balochistan, Pakistan, 5/03)
10. Safwan aI-Hasham (aka Haffan aI-Hasham) (Saudi) (Hyderabad, Pakistan;
5/ 0 3)
11. Abu Naseem (Junlsian) (Pesnawar, Pakistan, 6/03)
12. Walid bin Azmi (unknown nationality) (Karachi, Pakistan. 1/04)
1.). 'bad A\ Yaquti at Sheikh a\ Suflyan {Saudi) (Karachi, Pakistan. 1/04) ,
14- Aniir Hussein Abdullah at-Misri (aka Fazal Mohammad Abdullah al-Misri)
,(Egyptian) (Karachi. Pakistan, 1/04)
15. Khalid 'al-Zawahiri (Egyptian) (South Waziristan, Pakistan, 2/04) ,
1.6. Musaab Aruchi (aka at·Baluchi) (Pakista~i) (Karachi, Pakistan, 6/04)
17. Qari Sai,fuUah Akhtar (Pakistani) (arrested in the UAE. 8/04)
18. Mustafa Mohamed Fadhil (Kenyan/Egyptian) (eastern Punjab, Pakistan,
8/04)
19. Sharif al·Masri (Egyptian) (Pakistan border, 8/04)
20. Osama Nazir (Pakistani) (Faisalabad, Pakistan, 11/04)
21. Osama bin Yousaf (Pakistani) (Falsatabad, Pakistan, 8/05)
22. Speen Ghul (from Africa) (pakistan)
Human Rights Watch is extremely concerned about the fate of these people. One
possibility is that the CIA may have transferred some of them to foreign prisons

where for practical purposes they remain under CIA control. Another worrying
alt'ematlve is that prisoners were transferred from CIA custody to places where they
face a serious risk of torture, in violation of the fundamental prohibition on returns to
torture. We note that some of the missing prisoners are from Algeria, Egyptt Libya,
and Syria; countries where the torture of terrorism suspects is common.
Enforced disappearance violates both international human rights law and

internationat humanitarian law. It has long been recognized that enforced
disappearance is a "continuous crime until the fate or whereabouts of the
disappeared person becomes known.'t3 We note, therefore, that persons
"disappeared" In US custody who have since b~en transferred elsewhere remain the
) See, for I!llllmple, Report of the Working GrDup on Enforced or Involunt:ary Disappearances, Commission cn Human Righb,
E/CN,4hoo6!S6. December "q. ?ooS. para. ~o.
'

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legal obUgation of the United States so long as their fate or whereabouts remain

unknown.

'

I would also like to point out that refusing to reveal the whereabouts of these p~ople
is extraordinarily cru~l to their families. To take one small but telling detail, the wife
of a man who has not been seen since he was believed to have been taken into CIA
custody told Human Rights Watch that she has continually lied to her four chlldren '
about her husband's absence.' She explained that she could not bear telling th~m
that she did not know where he was: "{W]hat I'm hoplng'ls if they find Ol:.lt their father
has been detained; that I'll at least be ableto tell them what country he's being held
in, and'In what condit1ons."
.

As you may know, the CIA's detention program has inflided greilt harm on the.
reputation. moral standing, and integrity of the United Stat~s, By revealing
information ,about the fate and whereabouts of people formerly held in CIA custody)
you calM begin t9 repair the damag~ this abusive program has c~u5ed.
Sincerely.

Joanne Mariner, Director
Terrorism and Counterterrorism Program
Human Rights Watch

Cc: Condoteezza Rice. United States Secretary of State
John M. McConnell, United States Director of National Intelligence
Gen. Michael V. Hayden, Director of the Central Intelligence Agency

John B. BeUinger, Ill, Legat Advi~er tathe Secretary of State of the United States

4

UNCLASSIFIED
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RELEASED IN FULL,L

,Brooks, Maren C
Sent:

Rubin, Eric S
Friday, July 20,20073:16 PM

To:

P Officers

Subject:

FW: EXECUTIVE ORDER: INTERPRETATION OF THE GENEVA CONVENTIONS
COMMON ARTICLE 3 AS APPLIED TO A PROGRAM OF DETENTION AND
INTERROGATION OPERATED BY THE CENTRAL INTELLIGENCE AGENCY

From:

I &1

----- original Message ----From: Bellinger, John B(Legal)
To: Burns, Nicholas R
Cc: Rubin, Eric s; Beecroft, Robert S; Wittenstein, Edward M
Sent: Fri Jul 20 14:31:14 2007
Subject: FW: EXECUTIVE ORDER: INTERPRETATION OF THE GENEVA CONVENTIONS COMMON ARTICLE 3 AS
APPLIED TO A PROGRAM OF DETENTION AND INTERROGATION OPERATED BY THE CENTRAL INTELLIGENCE
AGENCY

From: bounce-451177-25517S@list.whitehouse.gov [mailto:bounce-451177-255175
@list.whitehouse.gov] On Behalf Of , White House Press Releases
Sent: Friday, July 20, 2007 2:08 PM
To: Bellinger, John B{Legal)
.
Subject: EXECUTIVE ORDER: INTERPRETATION OF THE GENEVA CONVENTIONS COMMON ARTICLE 3 AS
APPLIED TO A PROGRAM OF DETENTION AND INTERROGATION OPERATED BY THE CENTRAL INTELLIGENCE
AGENCY
THE WHITE HOUSE

Office of the 'Press secretary

For Immediate Release

July 20, 2007

EXECUTIVE ORDER

INTERPRETATION OF THE GENEVA CONVENTIONS COMMON ARTICLE 3

• APPLIED TO A PROGRAM OF DETENTION AND INTERROGATION
AS
OPERATED BY THE CENTRAL INTELLIGENCE AGENCY
UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCHIE M BOLSTER
DATE/CASE rp: 05 SEP 2008 200706444

lJNCLASSIFIED
L0105

UNCLASSIFIED
~.

By the authority' vested in me as President and Commander in Chief of the Armed Forces
by the Constitution and the laws of the united States of America, including the
Authorization for Use of Military Force (Public Law 107-40), the Military Commissions Act
of 2006 (Public Law 109-366), and section 301 of title 3, United States Code, it i6 hereby
ordered as follows:

Section 1. General Determinations. (a) The United States is engaged in an armed
conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were
responsible for the attacks on the United States of September 11, 2001, and ,for many other
terrorist attacks, including against the United States, its personnel, and its allies
throughout the world. These forces continue to fight the United States and its allies in
Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror
throughout the world. On February 7, 2002, I determined for the United States that
members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who
are not entitled to the protections that the Third Geneva Convention provides to prisoners
of war. r hereby reaffirm that determination.

(b) The Military Commissions Act defines certain prohibitions of Common Article 3
for United States law, and it reaffirms and reinforces the authority of the President to
interpret the meaning and application of the Geneva Conventions.

Sec. 2.

Definitions.

As used in this order:

(a)

"Common Article 3" means Article 3 of the Geneva Conventions.

(b)

"Geneva Conventions" means:

(i)
the Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces.at Sea, done at Geneva August 12, 1949 {6 UST 3217);

(iii) the Convention Relative to the Treatment of prisoners of War, done at Geneva August
12, 1949 (6 UST 3316);.and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done
at Geneva August 12, 1949 (6 UST 3516) .

(el
"Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth
Amendments to the Constitution of the United States.

UNcrASSIFIED
L0106

<-

UNCLASSIFIED

"

,Sec. 3. compliance of a Central Intelligence Agency Detention and Interrogation Program
with Common Article 3. {a} Pursuant to the authority of the President under the
C9nstitution and the laws of the United States, including the Military Commissions Act of
2006, this order interprets the meaning and application of the text of Common Article 3
with respect to certain detentions and interrogations, and shall be treated as
authoritative for all purposes as a matter of United states law, including satisfaction of
the international obligations of the united States, I hereby determine that Common
Article 3 shall apply to a program of detention and interrogation operated by the Central
Intelligence Agency as set forth in this section. The requirements set forth in this
section shall be applied with respect to detainees in such program without adverse
distinction as to their race, color, religion or faith, sex, birth, or wealth,

(b) I hereby determine that a program of detention and interrogation approved by the
Director of the Central Intelligence Agency fully complies with the obligations of the
United States under Common Article 3, provided that:

(i)
the conditions of confinement and interrogation practices of the program do not
include:

(A)

torture, as defined in section'2340 of title 18, United States Code;

(B) any of the acts prohibited by section 2441(d) of title 18, United States Code,
including murder, torture, cruel or inhuman treatment, mutilation or maiming,
intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of
hostages, or performing of biological experiments;

(C) other acts of violence ~erious enough to be considered comparable to murder, torture,
mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18,
United States Code;

(D) any other acts of cruel, inhuman, or degrading treatment or' punishment prohibited by
the Military Commissions Act (subsection 6(c) of Public Law 109-366) and the Detainee
Treatment Act of 2005 {section }003 of Public Law 109-148 and section 1403 of Public Law
1097163};

(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or
degrading the individual in a manner so serious that any reasonable person, considering
the circumstances, would deem the
acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts
undertaken for the purpose of humiliation, forcing the individual to
perform sexual acts or to pose sexually, threatening the individual with
sexual mutilation, or using the individual as a human shield; or

(F) acts intended to denigrate the religion, religious practices, or religious objects of
the individual;

UNCtASSIFIED
L0107

..

UNCLASSIFIED

(ii)
the conditions of confinement and interrogation practices are to be used with an
alien detainee who is determined by the Director of the Central Intelligence Agency:

(A) to be a member or part of or supporting al Qaeda. the Taliban, or associated
organ12ations; and

(B)

likely to be in possession of information that:

(1) could assist in detecting. mitigating, or preventing terrorist attacks. such as
attacks within the United States or against its Armed Forces or other personnel, citizens,
or facilities, or against allies or other countries cooperating in the war on terror with
the United States, or their armed forces or other personnel, citizens, or facilities; or

(2)
could assist in locating the senior
associated forces;

leaders~ip

of al Qaeda, the Taliban, or

(iii) the interrogation practices are determined by the Director of the Central
Intelligence Agency, based upon professional advice, to be safe for use with each detainee
with whom they are used; and

(iv) detainees in the program receive the basic necessities of life; including adequate
food and water, shelter from the elements, necessary clothing. protection from extremes of
heat and cold, and essential medical care.

(c) The Director of the Central Intelligence Agency shall issue written policies to
govern the program, including guidelines for Central Intelligence Agency personnel that
implement paragraphs (i) (e), (E), and (F) of subsection 3(b) of this order, and including
requirements to ensure:

(i)

safe and professional operation of the program;

(ii) the development of an approved plan of interrogation tailored for each detainee in
the program to be interrogated, consistent with subsection 3(b) (iv) of this order;

(iii) appropriate training for interrogators and all personnel operating the program;

(iv) effective monitoring of the program, including with respect to medical matters. to
ensure the safety of those in the program; and

(v)

compliance with applicable law and this order.

UNC:CASSIFIED
L0108

UNCLASSIFIED
!

Sec. 4. Assigriment of Function. with respect to the program addressed in this order, the
function of the President under section 6(c) (3) of the Military Commissions Act of 2006 is
assigned to the Director of National Intelligence.

Sec. 5. General Provisions.
(a) Subject to subsection (b) of this section, this order
is not intended to, and does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity, against the United States, its departments, agencies, or
other entities, its officers or employees, or any other person.

(b) Nothing in this order shall be construed to prevent or limit reliance upon this order
in a civil, criminal, or administrative proceeding, or ot~erwise, by the Central
Intelligence Agency or by any individual acting on behalf of the Central Intelligence
Agency in connection with the program addressed in this order.

GEORGE W. BUSH

THE WHITE HOUSE,
July 20, 2007.

fj:

# #

UNCCASSIFIED
L0109

-

'I

UNCLASSIFIED
RELEASED IN FULL

CONFIDENTIAL

EUR!ERA:PETER CHASE:HLB
10/16/07 202-647-3474

C:PZELIKOW

INITIALS
APPR:
DRAFT:
CLR 1:
CLR 2 :
CLR 3 ':
CLR 4 :
CLR 5:
CLR 6:
CLR 7 :
CLR 8:

PZE
PET
JBE
RWA
SAM

KVO
KVO
CWA
SMC
--

· ..

· ..
· ..

· ..
· ..

...

· ..

· ..
· ..
· ..

L:JBELLINGER
D:RWALLER(SUBS)
P:SAMADEO(SUBS)
R:KVOLKER EUR:KVOLKER
C:CWARD PAl SEAN MCCORMACK

IMMEDIATE ALDAC

E.O. 12958: DECL: OADR
TAGS: PREL, PHUM
SUBJECT: SECRETARY'S STATEMENT ON ALLEGED U.S. DETENTION
OR TRANSPORTATION OF TERRORIST SUSPECTS
Classified By: COUNSELOR PHILIP ZELIKOW, REASONS -1.4 (B)
AND' (D)

1.
(C) Over the course of the last few weeks, the EU,
Council of Europe and several European countries have
requested U.S. clarifications following media accusations
that the United States has violated law in holding
detainees or transporting them through the territory of
European nations.

2.
(C) On December 5, the Secretary of State issued a
statement that responds to these requests. qn behalf of
the administration, the Secretary's statement is a robust
explanation of U.S. thinking on the issue of detainees and
renditions in the context of the global war on terror. We
-seek to focus discussion where it belongs- on the
responsibility of all democratic governments, European as
_CONFIDENTIAL
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/<:;ASE ID: 05 SEP 2008 200706444

UNCLASSIFIED
L0110

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2

well as American, to take all appropriate law enforcement
and intelligence measures to protect our citizens from
attack. Some government ministers and spokespersons have
accepted an overly-simplistic, populist critique of the
United States as a rogue actor. :rt is.not. For example,
appropriate renditions are a vital tool in fighting
transnational terrorism and are permissible under
international law.
3.
(C) The Secretary's statement serves as a calIon
European governments, commentators and publics to step up
to the hard choices we face together as allies in the
fight against terrorism. Cooperation in this fight is a
sovereign choice~ It is a two way street. Responsible
governments cannot endorse it privately to protect their
citizens while publicly distancing themselves from this
necessity.
4. (U) The U.S. also understands the concerns European
governments and publics may have in light of various
reports about U.S. conduct. 'The Secretary thus also
provided firm assurances about the content and conduct of
U.~. policy.
5.
(SBU) For use only in appropriate backgrounding: The
Secretary's statement is in,part an effort to foster
greater understanding and promote a genuine dialogue on
these issues. An emotional and ill-informed discussion
should evolve into a constructive exchange among allies
and friends that share common goals. For example, the
statement ac~nowledges publicly that:
-- the US is in fact conducting renditions. As she,notes,
under the right circumstances, renditions are permissible
under international law, and are in fact a vital tool in
combating international terrorism;
-- US intelligence agencies have handled the gathering of
intelligence from a very small number of extremely
dangerous detainees, including individuals who planned the

CONFIDENTIAL

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3

.9/11 and other attacks. The' Secretary summarizes U.S.
policy on these matters.
6. (U) The text of the Secretary's statement follows in
paragraph eight. Paragraph seven contains .suggested
public' diplomacy actions posts should take to actively
change the nature of the public debate about this issue.
Posts are encouraged to direct questioners to the full
statement.
7 .. (C) Public Diplomacy Actions: Ambassadors and'
appropriate members of their country teams should seek
every opportunity to shape the public discussion about the
issue of U.S. detentibn or transportation of 'terrorist
suspects in ways that highlight the points made in the
Secretary's statement and that turn the public discussion
toward understanding of how the U.S. actions are legal,
respect the sovereignty of other nations, and contribute
to the safety of people everywhere who are thr~atened by
terrorists. Posts should ensure that the'Secretary's
complete statement is widely available and accurately
presented in your local media. As appropriate, seek
opportunities to address the media to highlight the
.statement, drawing on the talking points and themes in
paragraph four and the statement itself. The goal of Y0ur
public diplomacy activities is to ensure that the media,
particularly prominent commentators on detainee issues,
recognize the serious effort the u.s. has made to respond
thoughtfully to public concerns, while they should also
reflect on the very hard choices we all must face.
8.

(U) The Secretary's Statement:

We have received inquiries from the European Union, the
Council of Europe, and from several individual countries
about media reports concerning U.S. conduct of the war on
terror. I wish to respond now to those inquiries, as I
depart today for Europe.
The United'States and many other countries are waging a
war against terrorism. For our country this war often
CONFIDENTIAL

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4

takes the form of conventional military operat~ons in
places like Afghanistan and Iraq. Sometimes this is a
political st~uggle, a war of ideas. It is a struggle
waged also by our law enforcement agencies. Often we
engage the enemy through the cooperation of our
intelligence, services with their foreign counterparts.
We must track down terrorists who seek refuge in areas
where governments cannot take effective action, including
where the terrorists cannot in practice be reached by the
,ordinary processes of,law. In such places terrorists have
planned the killings of thousands of innocents - in New
York City or Nairobi, in Bali or London, in Madrid or
Bes,lan, in Casablanca or Istanbul. Just two weeks ago I
visited a hotel ballroom in Amman, viewing the silent,
shattered aftermath of one of those attacks.
The United States, and those' countries that share the
commitment to defend their citizens, will use every,lawful
weapon to defeat these terrorists. Protecting citizens is
the first and oldest duty of any government. Sometimes
these efforts are ,misunderstood. I want to help all of
you understand the hard choices involved, and some of the
responsibilities that go with them.
One of the difficult issues in this new kind of conflict
is ,what to do with captured individuals who we kriow or'
believe to be terrorists. The
individuals corne from many
\
countries and are often captured far from their original
homes. Among them are those who are effectively
stateless, owing allegiance only to the extremist cause of
transnational terrorism. Many are extremely dangerous.
And some have information that may save lives, perhaps
even thousands of lives.
The captured terrorists of the 21 st century do not fit
easily into traditional systems of criminal or military
justice, which were designed for different needs. We have
had to adapt. Other governments are now also facing this
challenge.

CONFIDENTIAL

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5

We consider the captured members of al Qaeda and its
affiliates to be uniawful combatants who may be held, in
accordance with the law of war, to keep them from killing
.innocents. We must treat them in accordance with our
laws, which reflect the values of the American people. We
must question them to gather potentially significant, .
life-saving, intelligence. ·We must bring terrorists to
justice wherever possible.
For decades, the United·States and other countries have
used ~renditions" to transport terrorist suspects from the
co~ntry where they were captured to their home count~y or
to other countries where they can be questioned, held, or
brought to justice.
In some situations a terrorist suspect can be extradited
according to traditional judicial procedures. But there
have long been many other cases where, for some reason,
the local government cannot detain or prosecute a suspect,
and traditional extradition is ~ot a good option. In
those cases the local government can make the sovereign
choice to cooperate in a rendition. Such renditions are
permiss~ble under international law and are consistent
with the responsibilities of those governments to protect
their citizens.
RenditiQn is a vital tool in combating transnational
terrorism. Its use is not unique to the United States, or
to the current administration. Last year, then Director
of Central Intelligence George Tenet recalled that our
earlier 'counterterrorism successes inclUded ~the rendition
of many dozens of terrorists prior to September 11, 2001."
Ramzi Youssef masterminded the 1993 bombing of the
World Trade Center and plotted to blow up airliners
over the Pacific Ocean, killing a Japanese airplane
passenger in a test of one of his bombs. Once
tracked down, a rendition brought him to the United
States, where he now serves a life sentence.

CONFIDENTIAL

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6

One of history's m~st infamous terrorists, best known.
as "Carlos the Jackal,n had participated in murders
in Europe and the Middle East. He was finally
captured in Sudan in 1994. A rendition by the French
government brought him to justice in Fra~ce, where he
is now imprisoned. Indeed, the European Commission
of Human Rights rejected Carlos' claim that his
rendition from Sudan was unlawful.
Renditions take terrorists out of.action, and save lives.
In conducting such renditions, it is the poli~y of the
United States, and I presume of any other democracies who
use this procedure, to comply with its laws and comply
with its treaty obligations, including those under the
Convention Against Torture. Torture is 'a term that is
defined by law. We rely on law to govern our operations.
The United·States does not permit, tolerate, or condone
torture under any circumstances. Moreover, in accordance
with the policy of this administration:
The United States has respected -- and will continue
to respect -- the sovereignty of other countries.
The united States does not transport~ and has not
transported, detainees from one country to another
for the purpose of interrogation using torture.
The United States does not use the airspace or
airports of any country for the purpose of
transporting a detainee to a country where he or she
will be tortured.
T~e United states has not .transported anyone, and
will'not transport anyone, to a country when we
believe he will be tortured. Where appropriate, the
United States seeks assurances that transferred
persons will not be tortured.

International law allows a state to detain enemy
combatants for the duration of hostilities. Detainees may
CONFIDENTIAL

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L0115

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. CONFIDENTIAL

7

only be held for an extended period if the intelligence or
other evidence against them has been carefully evaluated
and supports a determination that detention is lawful.
The U.S. does not seek to hold anyone for a period beyond
what is necessary to evaluate the intelligence or other
evidence against them, prevent further acts of terrorism,
or hold them for legal proceedings.
'
with respect to detainees, the United States government
complies with its Constitution, its laws, and its treaty
obligations. Acts of physical or mental torture are
expressly prohibited. The United States government does
not authorize or condone.torture of detainees. Torture,
and conspiracy to commit torture, are crimes under U.S.
law, wherever they may occur in .the world.
Violations of these and other detention standards have
been investigated and punished. There have been cases of
unlawful treatment of detainees, such as the abuse of a
detainee by an intelligence agency contractor in
Afghanistan or the horrible mistreatment of some prisoners
'at Abu Ghraib that sickened us all and which arose under
the different legal framework that applies to armed
conflict in Iraq. In such cases the United States has
vigorously investigated, and where appropriate, prosecuted
and punished those responsible. Some individuals have
already been sentenced to lengthy terms in prison; others
have been demoted or reprimanded.
As CIA Director Goss recently stated, our intelligen~e
agencies have handled the gathering of intelligence from a
very small number of ex~remely dangerous detainees,
including the individuals who 'plann~d the 9/11 attacks in .
the United States, the attack on the'U.S.S. Cole, and many
other murders and: attempted murders. It is the policy of
the United States that this questioning is to be conducted
within U.S. law and treaty obligations, without using
torture. It is also U.S. policy 'that authorized
interrogation will be consistent with' U'. S. obligations
under the Convention Against Torture, which prohibit
cruel, inhuman, or degrading treatment. The intelligence
CONFIDEN1'IAL

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8

so gathered has stopped terrorist attacks and saved
innocent lives - in Europe as well as in the united States
and other countries. The United States has fully
respected the sovereignty of other countries that
cooperate in these matters.
Because this war on terrorism challenges traditional norms
and precedents of previous conflicts, our citizens have
been discussing and debating the proper legal standards
that should apply. President BUs~ is working with the
U.S. Congress to' come up with good solutions. I want tb
emphasize a few key points.
The United States is a country of laws. My
colleagues and I have sworn to support and defend the
Constitution of the United States. We believe in the
rule of law.
The United States government must protect its
. citizens. We and our friends around the world have
the responsibility to work together in finding
practical ways to 4efend ourselves against ruthless
enemies. And these terrorists are some of the ~ost
ruthless enemies we face.
We cannot discuss information that would compromise
the success of intelligence, law enforcement, and
military operations. We expect other nations share
this view.
Some governments choose. to cooperate with the United
States in intelligence, law enforcement, or military
matters. That cooperation is a two-way street. We share
intelligence that has helped protect European countries
from attack, helping save European lives.
It is up to those governments and their citizens to decide
if they wish to work with us to prevent terrorist attacks
against their own country or other countries, and decide
how much sensitive information they can make public. They
have a sovereign right to make that choice.
CONFIDENTIAL

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9

-Debate in and among democracies is natural and healthy. I
hope that debate also includes a healthy regard for the
responsibilities of governments to protect their citizens.
Four years after 9/11, most of our populations are asking
us if we are doing all we can to protect them. I know
what it is like to face an inquiry into whether everything
was done' that could have been done. So now, before the
next attack, we should all consider the hard choices that
democratic governments must face. We can all best meet
this danger if we work together.
yy

CONFIDENTIAL

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NotesTele

RELEASED IN PART/ .
B5
~'{!

GENEVA 02441
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ACTION: PSA
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INFO:
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DE RUEHGV #2441/01 2460732
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TO RUEHC/SECSTATE WASHDC PRIORITY 2149
INFO RUCNDT/USMISSION USUN NEW YORK 0219

BT

UNCLAS SECTION 01 OF 02 GENEVA 002441
STATE FOR IO/SHA,

O~L/MLA,

L/HRR

E.O. 12958: N/A
TAGS: PHUM. UNHRc-1
SUBJECT: COMMUNICATION FROM THE WORKING GROUP ON ENFORCED
DISAPPEARANCES

1.

Mission received the following letter dated August 25.

2004 from the chairman of the working Group on Enforced or

Involuntary Disappearances. stephen J. Toope, addressed to
Ambassador Moley. The letter'concerns reports the working
Group has received regarding alleged secret detentlon centers
under united States' authorlty ln varlOUS parts of the world
and invites the USG to submit written information by october
15 and/or send a representative to appear in person at the
next working Group session November 8-15. 2004.
2.

Text of letter and annex follows:

Begin text.
25 August 2004
Dear Mr. Ambassador.
I should like to communicate.to you, on behalf of the
chairman of the Working Group on Enforced or Involuntary
Disappearances, the following letter addressed to you:

·"Dear

Mr.

Ambassador

1

I have the honour to write to you on behalf of the Working
Group on Enforced or Involuntary Disappearances, which held
its seventy-third session from 16 to 20 August 2004, at the
united Nations office in Geneva.

In the course of the session. the working'Group decided to
inform your Government of reports it had received about
developments in your country having an influence on the
phenomenon of disappearances or the solution of the cases not
page 1

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 04·SEP 2008 200706444

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.

. ' ';.

~"1

UNCLASSIFIED

_
NotesTele
yet clarified, andlor on the -imlllementation of the
Declaration on the protection of All persons from Enforced
Disappearances. A summary is provided as an Annex to this
letter.
I,would like to take this opportunity to remind your
Government that the working Group will hold its
seventy-fourth session from 8 to 15 November 2004, at the
Untied Nations office in Geneva. It would therefore be very
much appreciated if any written information that ¥our
Government'wishes to submit for the working Group s
consideration, could be received, if possible, by 15 October
2004.
In conformity with its usual practice, the working Group is
prepared to receive representatives of interested Governments
during the first three days of its session. should your
Government wish to be represented at the forthcoming session,
I would appreciated your contacting the Group's secretariat
at the Untied Nations office of the High commissioner for
Human Rights in Geneva (tel. 022-917-9176), in order to
schedule an appointment with the Group.
remain
Dear Mr. Ambassador,

I

Yours sincerely
stephen J. Toope
chairman
working Group on Enforced or' Involuntary Disappearances"
I remain,
oear Mr. Ambassador,

Yours sincerely,

1/11111111/1////1/111

Tanya smith
secretarya.i.
working Group on Enforced or Involuntary Disappearances
ANNEX
WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES
General allegations
united States of America
The working Group received information from non-governmental
organizations concerning the reported non-compliance by the
Government of the united States of America with provisions of
the Declaration on the Protection of All persons from'
Enforced Disappearance.
'Reports were received by the working Group re~arding secret
detention centers under united states' authorlty in various
parts of,the world, in which an unknown number of persons are
detained. Re~orts assert that there was inadequate provision
of notice to families about the capture of detainees and'
the; r conditi onS';"' 1 ega 1 status and ri 9hts. I t ; sal so
reported that it is unclear in many Clrcumstances which u~.
a~en~y.is ultimately responsiBle for the arrest or t6e
cond1tlons of conflnement of the detainees 1n these
page 2

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facilities.

NotesTele

Reports further specify that, the .most sensitive and
high-profile detainees are not being held in Gyantanamo
because it is believed that detainees there will eventually
be monitored by the u.s. courts. It is stated that terrorism
suspects are detained by the untied States in "undisclosed
lQcatiQns," RreSumably outside the united States. with no .
access to the ICBC~ no not,f,catlon to famltles, no oversight
of any sort of thelr treatment, and in most cases no
acknowledgmeot that they are even being held. Information
was provided,on 13 specific alle~ed detainees, apprehended in
places such as pakistan, Indonesla, Thailand, Morocco, and
the united Arab Emirates, who have reportedly .disappeared in~
u.s. custody.

B5

American authorities have also apparently refused to
disclose the names of men secretly detained during the past
few years ~~hin the United states. Fam,11es have not been
informed on he arrested persons' locations. Reports state (
that some of these detainees have now been released or
deported.
End text.
3. Mission transmitted a copy of the letter by fax to
IO/SHA, Attention Director.
cassel
aT

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...... --"-_.-.- •. __:::..I

.!!!!Bbl, Elizabeth 8

'/-95

Dolan. JoAnn
ThursdaY. May 05. 2005 5:38 PM

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.
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I

High

Importance:

Bl

thanks.

RELEASED IN PART

Bl,1.4(D)
From:

. Dolan, JoAnn

sent:

Thursday, May 05, 2005 5:38 PM

DorosIn, Joshua L; swa; <:atpenter, Jonathan J(p); Degnan, Kelly C(P): Waller, Robelt P(D); Ward, celeste J(C)i McLean, Lort A
(C)i PoIladc, MargaI1!tJ(~-l)
Bellinger, John 8 (L 1Meau)
<:Jearimce (SECRET)r::1
It! S/ES by 3PM, 5/5.

To:

=:.<...--------------------.1Due

thanks.
High

Attached memo Was due In S/ES at 3:00 today and must go up tonight as Secretary departs tonight. It is due at NSC
tomorrow.

LEGAl.·# 12209S'-vl

LEGAL-'122097·vl

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-Memo_to_Hadle...

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From:
sent:

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Wednesday, MilV 04, 2005 3:41 PM .
mol
m-5i moo: p oma:: c; m-sp: 58 1; s~une ~~ m-SCf' m·swa: m.~ m-PMi m-NEA.
(SECRET)1
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To:
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I

B 11

L. please coordinate State's response under cover of an Action Memo to S covering a memorandum from the Secretary to
N~A Hadley. Pis clear with O. P. C, SIWCI and olhers as appropriate. Many thanks.
'DUE IN S/ES BY 3:00 PM. THURSDAY. MAY 5

. CC:

.

S,D,P,C,SlP,S/ES,NEA,SA,PM,SCT. SWCI

I

200508934

UNITED STATE~ DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: SECRET REASON: 1.4(D)
DECLASSIFY AFTER: 5 MAY 2015
. DATE/CASE ID: 17 AUG 2009 200706444

1

UNCLASSIFIED

L0122

UNCLASSIFIED

NotesTele (49)
CON F IDE N T r A L
OSLO 01694
Laserl:
INFO:
PAS CONS
CXOSLO:
ACTION: PIE
INFO:
RSO AMB DAO RAO ODC DeM

!--115
RELEASED IN PART
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DISSEMINATION: POLO
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DE RUEHNY #1694/01 3201606
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CON .F IDE N T I A L SECTION 01 OF 03 OSLO 001694

. !

COPENHAGEN FOR LEGATT
E.O. 12958: DECL: 11/16/2015
TAGS: MARR, PREL, PTER, PGOV, NO
SUBJECT: NORWEGIAN QUESTIONS REGARDING DETAINEE FLIGHTS
REF: A. STATE 115990 B. OSLO 842 C. OSLO 829
Classified By: DCM Christopher
1.

(U)

w.

Webster, Reason 1.4 band d.

This is an action request -- see para 4.
B1

2.

Page 1
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 10 SEP 2008 200706444

U1\TCLASSIFIED

L0123

UNCLASSIFIED

NotesTele (49)
Bl

[

Ian article in
the leftist weekly "Ny Tid ll that alleges that an aircraft
with the tail number N50BH owned by Crystal Jet Aviation of
Albany, New York, is operated by the USG to transport
detainees and landed in Norway. \

L...-

--II h;nQ

Bl

not:e}.
Bl

5.
(U) Post has also received press inquiries and only
plans to confirm that the MFA has indeed asked for
information regarding possible detainee flights.
Comment
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NotesTele (49)
Bl

Translation of one of the Articles on Alleged Detainee Flight
8.

(U)

Norwegian News Agency (NTB) report dated November

16, 2005

(begin text of informal Embassy translation)
CIA Plane was at Gardermoen (Oslo,s main airport) for 12
hours
An American airplane that is suspected of having been on an
assignment for the CIA, and which landed at Gardermoen, was
at the airport for twelve hours.

&The plane came at'0740 and departed at 1922,8
communications director OVe Narvesen at Avinor tells NTB.
He explains that there were two passengers on board in
addition to' the crew, but otherwise doesnrt know anything
about the plane's stay or the purpose of the visit by the
passengers to Norway.
Page 3

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On Friday, the weekly Ny Tid broke the story about the
landing at Gardermoen on July 20-of this year. The plane in
question is one of several that are discussed in the American
media in connection with the CIA's transport of prisoners to
Guantanamo Bay in Cuba and to third countries where prisoners
are said to have been tortured.
The issue has come on the agenda in several European
countries the past few days and is the subject of
considerable attention.
The plane has the tail number &N50BH8 and is owned by the
company Cyrstal Jet Aviation based in Albany, New York. The
same plane is now the subject of an investigation in Sweden,
where the plane is said to have landed at several locations
during recent years.
Ministry of Foreign Affairs Meeting
The (Norwegian) Foreign Ministry was reported to be meeting
Wednesday afternoon with the U.S. Embassy to clarify the
circumstances around the landing of the plane at Gardermoen
during the summer when it allegedly was on a mission for the
CIA.
&We will ask about the circumstances concerning the
landing,S the Ministry 1 s spokeswomen, Anne Lene Dale
Sandsten, told NTB.
.
&1f it was an official flight, they should have known about
it,s she responded to a question as to whether the Embassy
knew about the landing.
Dale Sandsten says that from the Foreign Ministry's point of
view, there is no reason to believe that anything is out of
order.
&But there is a certain level of media interest,8 she added
regarding the background on the meeting.
She references that earlier this year the Foreign Ministry
discussed a similar case after a similar American layover at
Sola in Stavanger on June 1 had been reported.
&At that point the Americans explained that there had not
been prisoners on board,8 she says.
Page 4

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No Information on Passengers
Information Director Robert Haast at the Civil Air Authority
explains that his office does not know who was on board the
plane on July 20. According to regulations, it is possible
that his office would be informed about this.
&If it is an official flight, the Civil Air Authority should
be informed of who is on board. That did not happen in this
case,a Haast tells NTB.
&If a civilian company carries out an operation for the
government in a country, for example transport of a head of
state', information is provided to the Civil Air Authority via
an application to the Foreign Ministry. 8
&If a civilian air company carries out an operation for the
police or intelligence service, it is evaluated on a
case-by-case basis.' But in most instances it would not be
viewed as an official flight,S says Haast. End translation.
Visit Oslo's Classified website:
http://www.state.sgov.gov/p/eur/oslo/index.cfrn
ONG
BT
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Pekala, Mark A

RELEASED IN PART
B5

Allegrone, Kathleen H
Wednesday, November 23,200510:04 AM
Pekala, Mark A; Graffy, Colleen P
Spanish·· MFA Communique on the CIA planes/DCM mentioned

From:
'Sent:
To:

Subject:

From:

Sent:
To:

ee:

Subject:

Oements, Gary A
Wednesday, November 23, 2005 9:30 AM
Allegrone, Kathleen H
EUR-WE-Spain-DL
FW: MFA Communique on the CIA planes/OCM mentioned

Kathy,

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Sent:
To:

cc:

Subject:

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I
Hall, Morgan C
Thursday, November 17, 2005 1:31 PM
Manzanares, Bob; Allegrone, Kathleen H; Propp, Kenneth R; Terrill, Damon A; EUR-WE-Spain-DL
Fitzpatrick, Kathleen M; Zuniga, Ricardo F; Keener, Geraldine F
RE: MFA Communique on the OA planes/OeM mentioned

Here is a quick translation o~ the Spanish MFA Communique issued yesterday:
Government of Spain Official Statement
Wednesday, 16 of November 2005
With regard to the news that has appeared in recent days concerning the possible use of Spanish airports for the transfer
of prisoners or detainees in international ftights, the Government communicates the following:
1.• The Government has asked the Minister of Foreign Affairs to appear before the Congress of Deputies to proVide a
detailed report on all aspects related to this sUbject.
2. - In March of this year, after the appearance of the news in some media outlets, the Director General of Foreign Policy
for Europe ana North America, Jose Pons. asked the Charge d'Affaires of the United States in Madrid. Mr. Manzanares,
for all the information that the U.S. Embassy could provide.
3. - Mr. Manzanares. after carrying out the appropriate conSUltations, informed the Ministry of Foreign Affairs that he was
aware of no aerial transfers of prisoners.4. - Today, the Ministry of Foreign Affairs has raised the issue again with the Bureau of E':Jropean and Eurasian Affairsof
the U.S. Department of State and the Assistant Secretary of that Bureau has reconfirmed what was stated in March.
From:

Sent:
To:
Subject:

Manzanares, Bob(Madrid)
Thursday, November 17, 2005 1:01 PM
Hall, Morgan C; Allegrone, Kathleen H
FW: MFA Communique on the CIA planes/OeM mentioned

FYI.
----'Original Message·····
From:

Sent:
To:

UNITED STATES DEPARTMENT OF STATE
REVIEW AutHORITY: ARCHIE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 06 AUG 2009 200706444

Fitzpatrick, Kathleen M
Thursday, November 17, l005 2:18 PM
Diaz, Irene X; Zuniga, Ricardo F; Allison, Robert 5; Tameo, Amy N; Manzanares, Bob; Law, John; Shumake, Josie 5

1

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Subject:

"MFA Communique 0(1 the CIA planeS/DCM mentioned

Thanks Irene. Bob·· Here is the texi of MFA statement.

·····Orlgloal Message·····
From:
Sent:

To:
Subject:
Importance:

Diaz, Irene X
Thursday, November 17, 2005 1:50 PM
Fltzpatrlck, Kati1leen M; Zuniga, Ricardo F; AlllsOfl, Robert S; Tachco, Amy N
CIA Planes
High

The following is the official communique issued by the Ministry of Foreign Affairs re the CIA planes

Comunicado del Gobierllo
miercoles, 16 de noviembre de 2005

En relacion con las notidas aparecidas estos dras sobre la posible utilizacion de
aeropuertos espafioles para el traslado de presos 0 detenidos en vuelos
internacionales, el Gobierno comunica 10 siguiente:

1.- EI Gobierno ha solicitado la comparecencia, a peticion propia, del Ministro de
Asuntos Exteriores y de Cooperacion en el Congreso de los Diputados para informar
con detalle de todos los extremos relacionados con este asunto.
2.- En el mes de marzo de este ano, y tras las primeras noticias difundidas por algun
medic de comunicacion, e\ Director General de PoHtlca Exterior para Europa y
America "del Norte, Jose Pons, solicito, a traves del Encargado de Negocios de Estados
Unidos en Madrid, senor Manzanares, toda la informacion de la que dispusiese la
embajada norteamericana.
"
3.- EI Encargado de Negocios de Estados Unidos, senor Manzanares, tras efectuar las
oportunas consultas, informo al Ministerio de Asun,tos Exteriores y de Cooperaci6n de
que no tenia constancia atguna de posibles traslad05 aereos de detenidos.
4.- En el dia de hoy, el Ministerio de Asuntos Exteriores y de Cooperacion ha vuelto a
dirigirse a la Direccion General para Asuntos de Europa y Eurasia del Departamento
de Estado Norteamericano para interesarse nuevamente por el Asunto y el Director
General del citado departamento ha vuelto a confirmar todos los extremos expuestos
en el mes de marzo.
Irene Dfaz
Political Section Specialist
U.S. Embassy Madrid
Tel: 34·91·587·2502
Mobil: 34-650-622·281
Fax: 34-91-587-2391/2292

2

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Questions and Answers: U.S. Detainees Di!Jappeared into Secret Prisons: IUega}
under Domestic and International Law
December 9. 2005
The United States is holding an unknown nwnber of terrorism suspects in secret
overseas locations, and refusing either to acknowledge the detentions or to give
information on the fate or the whereabouts of these detainees. These detainees have
been held incommunicado, without trial, some for as many as four years. Some of the
detainees are reported to have been to~d in custody. I
Several reports indicate that the CIA has held detainees in secret facilities in Eastetn
Europe, with Poland and Romania named as possible locations. 2 While refusing to
directly address the existence of such detention centers, the U.S, asserts that its acti9ns
are consistent with its obligations under international law. Meanwhile, the Council of
Europe and a number of Europe!Ul states have launched investigations into the
allegations ~f violations of international and domestic laws.
The following questions and answers addIess legal issues concerning U.S. detainees
disappeared into secret prisons.

What laws apply to the cases of U.S. detainees disappeared into secret prisons?

1 "U.S. HoldIng at Least Twenty-Six 'Ghost Detainees': Ust of Detainees PubUshed by Human Rights Watch:
Human Rights Watch, press release, December 1, 2005, available al
http://hrw,orglengTlshfdocsI2005111f07/usfnt11995.hlm: Richard Esposito and Brian Ross, 'Sources Tell ABC
News Top AI Qaeda Figures Held in Secret CIA Prisons: ABC News, December 5, 2005; Dana Priest. 'CIA
Holds Terror Suspects in Secret Prisons; Debate Is GrowIng Within Agency About Legality and Morality of
Overseas System Set Up After 9111," Washington Post, November 2, 2005.

.

.

2 Dana Priest, 'CIA Holds Terror Suspects In Secret Prisons: Washington Post. November 2, 2005; "Human
RIghts walch Statement on U,S. secret Detention Facilities In ELirope: Human Rights Watch. press release,
November 2005. available at htlJ):IIllM.org/englishldocsl2005111/071u&lnt11995.h\m; ABC News Radio
Broadcast, "Brian Ross Investigates: SecretaI}' of Slate Condoleezza Rice is off 10 Europe Today and the
Tlmlng Could Not be Worse.' December 6. 2005.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORI1Y: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

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International human rights treaties such as the International Covenant on C~ and
Political Rights (lCCPR)~ and the Convention against Torture llO:d Other Cruel.
Inhuman or Degtading Treatment or Punishment4 govern individual rights to liberty, to
a fair trial, and to be free from torture and other cruel, inhuman or degrading treatment
European governments are ~SQ bound by similar provisions in the Europe~
Convention on Human Rights.s The Geneva Conventions address the detention,
treatment and trial ofprisoners of war and civilians during armed conflict or military
occupation.6
International human rights and humanitarian law (the laws of war) ensure that the
fundamental rights of all individuals are protected at all times. When the laws of war do
not apply, international human rights law still protects that pers~n's rights. Furthen:nore,
certain. protections are so well established, such as the prohibitio~ on torture and other
cruel, inhuman or degrading treatment, and prolonged arl?ittary detention, 'that they have
become customary obligations that are binding legal obligations independent of specific
treaty agreements.7 The domestic laws of states whose territories or nationals are
impliC'<\ted also apply.
.

Docs holding someone without trial violate international human rights law?
Human rights law has long recognized that everyone has a right to liberty and security of
person, and the right to a fair trial. These rights are guaranteed in the Universal
Declaration of Human ~ts,g the ICCPR,!l and the ECHRIO The ICCPR and the

0

31nternatlonal Covenant on Civil and Political Rights (ICCPR), 999 U,N,T.S, 171. entered Into force Mar. 23,
1976. available al: hlIp:flwWw.unhchr.chlhtmVmenu31bIa_ccpr.l1tm. Each State Party to the ICCPR pledget> to
respect and to ensure to an lndMduals wlthitllts tenitOlY and subject to ItsJurisdiction the rights recogniZed 'n
the'conventlo.n, regardless of such disllncllons as roce. renglon, political or other opinion, or national or SOCial
Origin, Art. 2. TIle iCCPR has been ralitled by a totarof 154 countries, including the Uniled Slates, the United
Kingdom, Germany, Italy, Poland, Spain, Romania. Portugal. the Nelherlands, Austria, sweden and Norway.
4 Conventlofl Against Torture, General Assembly resolution 39/46, entered Into force on June 26, 1987,In
accordance' with article 27 (1). available at htlp:/lwww.ohchr.orQlengUshllawlcat.htm. The Conventlon against
Torture has been ratified by a tolal of 140 countries. Ineludlng the United Slales, the United KIngdom, Germany.
Italy, Poland. Spain, Romanla. Portugal. the Nelhertands, Austria. Sweden and Norway.

5 European Convention on Human RJghts (ECHR). Rome. 4.XI.1950 , liIvailable at
http://convenlions.coe.lntltrealyfenITrea\!eslHlmlf005.htm. The ECHR obligates each State Party to seClJre this
right to evesyone within ils jurisdiction. Art.1. The European Convention binds 46 countries, InclUding the United
Kingdom. Gennany.l\aly. Poland. Spain, Romania, Ponugat.the Netl1erlands. Austria. Sweden anti NoJWay,
6 International Commlttee of thl!' Red Cross, Intematlonal Humanitarian Law dalabase, available at:
hIIp:JIwww.lerc.orglihl. All of these countries are bound by the Geneva Convenllons.
7 Restatement (Third) of Foreign RelatJons Law of the United States, Sec, 702 (Customary International law of
Human Rights). The Restatement. prepared by the America.n Law Institute. is generally considered to be an
authorltalive statement of Ihe law of the United Slates.

aUniversal DeclaratiOn of Human Rights. arts. 3 and 11.

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:t·

~'

.. < '":'

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"'..,-w'"

•••••••• ,

"-"

UNcii\'ssiFIEDi"'" '
t'

ECHR specify that no one shall be deprived of his or her liberty except, as established by
~w, Anyone auested or de~ed on a cr:Uninal charge must have a

fair

and public trial

within a reasonable tirne,11
Intemationallaw pem'l.its the detention of persons without trial (administtative
detention) tinder certain naaowly defined circumstances. In accordance with the ICCPR,
there must be a public emexgency that threatens the life of the nation. Administrative
detainees under states of emergency should enjoy as II minimum the foDo'Wing rights and
guarailtees:
(a)'

The right to be brought before a judicial authority promptly after attest;

, '(b)
The right to receive an explanation of rights upon arrest in their own language
or soon thereafter and to be informed of the specific reasons for the deprivation of
liberty;
(c)

The right ofimmediate aCcess to family; legal COut'lS,el and a medical officer;

The right to communicate with and be visited by a representative of an
international humanitarian agency. such as the JCRC;

(d)

(e)
The right to challenge, in a,faithearing an~ periodically if necessary, the
lawfulness of the detention and to be released if the detention is arbitrary' or unlawful;

(t)

, The right to complain to :l. judicial authority about mistrea~ent;

(g)

The right to seek. and obtain compensation if the detention proves to be
arbitrary or unlawful.

Docs holding persons in secret violate international human tights law?
When a person is forcibly detained by government officials who refuse to acknowledge
the detention and who keep the person from the protection of the law, t~s is called a
forred Jisoppeanz1tfe. 12 The U.S. has long condemned other countries that engage in forced
disappearances, and was instrumental in drafting and approving United Nations
statements that'condemn all enforced disappearances with no exceptions for national

9 Each State Party to the ICCPR pledges to respect and to ensure to all individuals within its terrilorY and
subject to its jurisdiction llie rights recognized In the convention, regardless of such distinctions as race,
religion. pOUtical Of other opinion, or national Of social otigln., art. 2.

10 The ECHR obligates each State Party 10 secure thls right 10 everyone within its jutisdicllon, 311.1.
11 lC'CPR,
9; ECHR, art. 5-6.
'

,lit.

12 "The United States' "DIsappeared": The CIA's Long-Term "Ghost Delainees", Human RIghts Watell Briefing
Paper, October 2004,

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security or emergencies. 13 As described by the JCRC, "N~ matter how iegitimate the
reasons for a person's detention, no one has the right to keep that person'~ fate or
whereabouts secret or to deny that he or she is being detained."14

"Disappeared" detainees are cut off from the outside world and from the protection of
the law and thus subject to the whim of their captors. This has the effect of suspending
the rights of "disappeared" petSons and placing them in a situation' of co~plete
d~fenselessness.making them especially vulnerable to torture and other ill~treatment.

Do the laws of war apply to these detainees?

The U.s. has claimed that"all persons captured in the "global war on terror' are "enemy
combatants" who may be detained without chatges for the duration of the conflict.
Even if this were the case, a view Hu:rnan Rights Watch contests,'S the u.s. has not met
even its basic obligations for detainees held under the laws of war. The U.S. has never
stated !be legal basis fot'the detention of any of detainees disappeared into secret
prisons, the circumstances of their captw:e, or theit individual status as combatants or
terrorism suspects - the U.S. does not even acknowledge they are being held.

Does secret detention without trial violate the laws of war?
The Customary laws of war prohibit secret detention. Consistent with the prohibition on
enforced disappeatance, states ate. required to record the personal details of detainees
and provide information to family members on the fate of missing persons.11I and
detainees should be allowed to correspond with relatives and receive visits to the degree
practicable. 11
/ /

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During an inten;ational anned conmer, the Third and Fourth Geneva
require that the IeRC have access to all detainees a~ places of detention. Prisonets
13 Oec\arallon on the Prolec\lol't of all F'ersOf\S from Enforced Disappearance. GA Res 471133, entry Into force '
Deeember 18.1992.
'

14 International Committee of the Red Cross. 'Enforced DiSappearance Must Stop: August 30. 2003. available
at nltp:Jfwww.lcrc.orgM'eblEnglsileengO.nsfJiwpUst581/BAE1907FEC3D5CAOC1256D9200520.2B3.
15 "Letter to Secretary Rumsfeld on the 'Joint Doctrine for Detainee Operations': Human Rights Watch retter.
Aprfl 7. 2005, available at: http://hrw.orgfengllshldocs!2005lO4107/usdom10439.htm; 'US: Pentagon Detention
Guidelines EnlrenchlllegaUty: Enemy Combatants COUld be Held as 'Ghost DetaInees"; Human Rights watch
press release. April 7, 2005, available at: http://hrw.orglengllshldocsl2005f04/07fusdom10440.hbn.

16 Se,e

leRe. Customary Intemational Humanitarian Law. rules 123 and 117.

17 Ibid. rules 125-26.

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should be documented, Mld theil whereabouts must be mAde known to thei£ family.
Visits from the ICRC may only be prohibited for "reasons ofimperative .military
necessity>' and then only as "an exceptional and temporary measure."18 In all cases,
including where civilians can legitimately be held as spies Or ~aboteurs. detainees must be
ttc-ated with humanity and, if charged with a crimin-al offetllle. affamed a fair and regular
tria1.l 9 In all cases, the Geneva Conventions prohibit torture or inhumane treatment.
What is the contlection between secret incommunicado detentions and torture?
The prohibition on secret incommUnicado detention is not just a protection of
individuals' right to liberty and security, but is an important safep;l.W'd against abuse in
detention or d~g interrogations, iocluding torture and oth~ forms of cruel inhuman
or degrading treatment. Historically, secret detention has been a gateway to abuse.
The Convention against Torture and ~er Cruel, Inhuman or Degrading Treatment or
Punishment defines torture as the intention-al infliction of severe physical or mental pain
or suffering. by someone acting in an official capacity for a specific purpose. 20

News reports citing cunent or lonner intelligence officers and interrogators have
confirmed that detainees ~ U.S. custody have been subjected to abuse~ 2\ U.S.
government officials, speaking anonymously to the media, have described a number of
interrogation techniques authorized for use by the CIA which constitute torture, and
which the United States has historically considered as such when conducted by other
gOvernments, including
. "watetboarding" (mock
. chowning), fOl:ced standing for over 40
hours, extended sleep deprivation, and exposure to exttetne temperatures.22

18 Gell6ya Conventi<lfl relative to the Treatment of Ptlsoners of War (ThIrd Geneva Convention). art :\ 26. and
Foul1h Geneva ConventJon relatlv& to the Protection of Cillilian Pet'$on$ In rl1ll& of War (Fourth Geneva
Convention), art. 143.
.
19 See e.g. article 3{l)(d) common to the four Geneva ConventJons of 1949; l111Jd Geneva Convention, arts.
93.103.105.10'7; Fourth GenevaCOnventlon, art. 71.

:io Convention against Torture, art. 1. The ECHR likewise prohibits torture and fnhuman or degrading treatment
or punishment. ECHR , art. 3.

21 Richard Esposito anti Bnan Ross. 'Sources TeU ABC News Top t>J Qaeda Figures Held In Secret CIA
Prisons: ABC News. December 5, 2005; Nell A. lewis, "Fresh Details Emerge on Harsll Methods at
Guanlanamo." N9'W Yolk Times, January 1, 20(l5.
22 ·CIA VVhltewashing Torture: Statements by Goss Contratlfct U.S. law and Practice: Human Rights Watch
press release, November 21, 2005. avanable at: htlp:llhrw.orglenglishld0CS/2005l11/21/usdarn12069.hlm;
"DeSaiplions of Techniques Alfegedly Authorized by the CIA; Human Rights Watch background brIefing.
November 21, 2005, available at: h!lpYlhrw.orglenglishldocsl2005/11121fusdorn12071.htm.

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What jntemationallaws prohibit tortute and cruel, inhwnane and degrading
treatment?
Torture and (.tue~ inhuman ot degt\l.ding treatment ue prohibited by such treaties as the
ICCP~ the ComrenUon against Torture, and the European Convention on Human
Rights; among oIDa treaties.
.
Torture and crue~ inhuman or degrading treatment is also prohibited under intemati~nal
hw even for.states that have not ratified human rights treaties. The ban is powerful
enough to stand as customary international law. Torturers have been compared to
slavers, gellocidoirrf and pirates as "enemies of all mankind''23
All states are obligated under both internationll1 humanitarian and human rights law to
prohibit, ptcvent and prosecute instances of torture and other ill-treatment of persons in
custody. The prohibition against mistreatment applies to the United States during times
of peace, armed conflict, or a state of emergency. Any person is pto~cted, whether a
U.s. national or a non·citizen. It is .irrelevant whether the detainee is determined to be a
prisoner-of-wat, a protected person, or a so-called «security detainee" OJ: «w1lawful
combatant." And the prohibition is in effect within the territory of the United States or
any place anywhere u.s. authorities have effective control over a person. In short, the
prohibition against totture and ill-treataient is absolute.

D()e~n to a country where ~ person is likely to be tortured violate human
righ;s'~'

.

.

States are absolutely ptohibited from returning persons to another state where there are
substantial grounds fOJ: believing that they would be subjected to torture or other illtreatment.24 This ban against rejollkment is expressly stated in numerous major human
rights agreements, and has been authoritatively interpreted as part of the.genera~
prohibition llgainst torture even where not expressly stated.25

A note on tenninology: fundition is any transfer of a person between governments.
Extradition is a rendition from one country to another through a legal process normally

23 Restatement {Third} of Foreign Relations Law, §102: and reporters note 6 {1966}.
24C<lnvention against Torture. art 3.
25 ·Still at Risk: Diplomatic; Assurances No Safeguard Against Torture: Human Rights Watch report. April
2005, available at: hltp:/lhrw,orglreporlsI2005feca0405/.

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RELEASED IN PART'
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CAT

UNITED
NATIONS

Convention against Torture
and Other Cruel, Inh~man
or Degrading Treatment
or Punishment
.

Distr.

GENBRAL
CAT/ClUSAlQI2
14 Dec:ember 200S
Original: ENGLISH

COMMITmEAOAmSTTOR~

Thirty-fifth session
7..,.. 25 November 100S

UNITED STATES OF AMERlCA

List of (ssues to be considered during tbe eumillation of
the second periodic report oCthe United States of America (CATICJ48/Add.3) .

'Artlele 1

I

1.
lPle~e e~lain why, if"[t]hc definition oftoJture accepted
by the United States upon ratification ofthe Convention (...) remains unchanged"I, the
Department of Justice issued a memorandum dated August 2002' which concluded "that
torture as defined in and proscribed by section 234o..2340A covers only ex.U'tme acts" and
how tbis is compatible with article I of the Convention.
2.

I

~Please explain for which substantive reasons the August

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2002 memorandum has been replaced by a new memorandum in December 2004', as the

definition of torture remained unchanged, and

~if

any of the conclusions' of the August

2002 memorandum are still valid.. Q$..How does a memorandum interpret a Convention and
is it legally binding?

I

§ 11 ofIhc Slate party n;port .

~

US Department of Jusrice, Offite of Legal COIlllSeI, Off/te of the Assistant Attomey General, MtmQr.&ndum
for Alberlo It gonzales. August 1,2002, p.46
.
3 US D\:pIlot\mcnl t\f J\lS\i~t, Offiec of l.eaal CO\ll\St.I. Offltc t\f tnt A!rSisunl Altorney (k~~l. Mmon.ndlllD
for Jame! 9. Corney Pe1!uly Attorney Genera/' December 30, 2004

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

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FROM SITE 8A WHSR

3

CAT/ClUSAlQI2
page 2

lHow does" the Stale party consider ~tbat the memorandum

3.

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4

dated 30 December 2004 is compatible with the Convention when it states that "[t]he tenn
"torture", in United States and international usage, is usually reserved for extreme. deliberate

and"unusuaUy cruel practices (... y',S or ~that ~1t]be CAT thus treats torture ~ an "extreme
Conn" ofcruel. inhumane,.or degrading treatment"," or .Q:t.that "[t]he requirement that t0r:ture
be an extreme form cCcruel

and inhuman treatinent is expressed in article 16 (...r

Herman Burgers and Hans Daneliu~,' quoted as authorities in
memorandum,

e~pressly

th,e

7

[of eAT].

30 December 2004

refer that "(...) extreme or extremely severe pain ,,:ere suggested

during the travaux preparatoues. but the phrase "severe pain" was considered sufficient to
convey the idea that only acts of a certain gravity shall be considered to constitute torture".
~Please ~xplain

how this interpretan,on is compatible with article 1 of the Convention.

~Ple~e

4",

explain why tho interpretation

of both memoranda

"B5

seem to be much more restrictive than previous UN standards, namely the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment9 which states that ''Torture constitutes 8Jl aggravated and
deliberate fonn ofcruel. inhuman or degrading treatment or punishment". "
Article 2

S.

.

~onsidering the r~servation ofthe State party to the Convention
"

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declaring that the "provisions of articlC$ I through 16 of the Convention are not self-

executing",'O only legislation giving the ·United States courts crJminal jurisdiction over

eXlr~terriloria1 acts of torture was enacted. II .Q1Q.;...Js the State party actively coru.idering to
Connally incorporate all provisions of the Convention into domestic Jaw? ..Q.!.t..lf not, hoW
will the State party ensure that its legislative, judicial. administrative and other measures fully
meet the obligations of the Convention?

9.11J

IWhat guarantees

B5

• § 13 iII'Id annex :) ofthe Rport
, US Department of Justice, Office of Legal Counsel. Offiee of the Assistant Altorney General. Memorandum
for James e, Corney Deputy Allomey Genenl, December 30, 2004, p. 6
• (bid., 1>. 6
7 Ibid., p. 7
.
8 The United Nations Conventjon against Torture: A Handbook on (be Convention aBaillsl T9!tUre and Other
Cruel. Inhuman or Def!lildingTreatmcnt or Punishmem. 1988, p. 117, illjine
9 Adopte4 by General Assembly resolutlon 3452 (XXX) 0(9 December 1975
"
10 Annex 4 to the n:pon
.
11 § 141 ofthc COR document (HRUCORElIIAdd..49) and §47 oftheinitial report (CAT/CI2IlfAdlt.5)

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and oonl1'o!$ does the State party have to ensure Ihe monitoring of the activities of law

enforcements offic;ials id prisons and other detention centres under the jurisdiction ofStates of...
the Union or under its jurisdiction or de[aclo contro!l1?

j.Q.!krs the transfer of detainees from one place

·6,

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of detention to another duly registered and is this registrar 'public? Q!i;..Do 'foreigners
detained under the jurisdiction ot the State party receive any consular·assistance? ~Please
provide updated and ~etailed data regar:ding the. incalUrated.population in the State party's
territOtY I3 ~and in areas under the jurisdiction of the Slale party, including in
Afghanistan, Iraq, and GuantAnamo

B'l\y,14

QJL....Regarding the latter, please pmvid~

infonnation on their exact legal status, Q.1!;the offences they are detained (or,Ql2i..for ,what

period

and~

the process which determines the length of their detention. Qll:....Do

detainees' have access to legal advice, ~medicaJ treatment and ~family visits? ..Q.1.4;
Is .there ,any independent review of the grounds of detention and their continuing
applicability? Please pr~vi~e detailed information on the matter.

7.
IAccOrding to information :t>eforc the Committee;' the S~te'
party has established secret detention facilities, including on vessels, as well· as of

I

, B5
!

unacknowledged detentions, with no access to the International Committee of the Red Cross,
no notifIcation to families, no oversight wi.", regaro to their treatment, and in most cases no
acknowledgement that they are even being held,
facilities
party's

~here

Q.llLPleas~

provide a list of all detention

detainees are being held under the de facto effeclive control of the State

authorities.'6 outside its temtory or on'State party's vessels, as well as infonnation on

the 026: number. Q.ll;..nlltionality, 028: charges llnd 029: exact legal status of,those persons. ,
030: Why have such secret detention facilities been established? QllLDoes the Slate party
assumes responsibility (or alleged acts of torture perpetrated by its own public agents out of
,

'

,

its territory but in territories under its jurisdiction or de facto control 17? Q32:As welt as in

12 "De/UCID controt oftbe St~te party", means, e.g,. territories, or part of tmitories, wMre American IroOpS are
0feraling Wilier American command.
I § 78 oflhe inilial "'POrt
Ie pages 50 and 71 oflJlc.report (annex I)
I~ Report of the Working Group on Enforced or II\Yoluntal)' Disappearances (ElCN.41200S/6S, § 364)
Ii CollClusions and recommendations of the Committee Against Tort\II'C: United King~om of Orcat Brila;n and
Northern Ireland. and Depende.nt Territories, § 4 (b)
11 .. De facto control of the SllIle party", means, e.g.• territories. or part of territories, where American troops are
opcntting under American t:ommand.
.

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cases where those aots are perpetrated by persons who are not public agents but are subject to .
the conlrol of the State party?

~Considering the numerous allegations of torture and ill-treatment

8.

B5

of persons iii detention under the jurisdiction of the State party and the case ofthe Abu Obraib
prison. ~what specific measures have been undertaken to identify and remedy problems

I

in the command and operation of thOse. detention facilities under the jurisdiction of the State
party? ~What measures have been undertaken to ensure that the International. Committee

of the Red Cross has appropriately wide access to all such facilities and to aU detainees, and
~that

its reports are made \mown to sufficiently senior members of the chain of command

for purposes of implementation'?
9,

I

~Under

the Slate part)' domestic: law, is it possible to

derogate'from the principle of prohibition oftorture1 ~Have any measures taken'by the

State party derogated from this absolute prohibition? .QJ!;...Can a~y provision of the Patriot
Act of 2001, be interpreted as a possible derogation? ~What 'legal
.

,

Of

administrative

measureS has the State part)' put·in place to ensure that the Convention's prohibition against
torture is not derogated from under any circumstances?

110. I

,~ACC<)J'(iing to information before the Committee, crimjn~1

B5

responsibility of perpetrators of torture may be waived under the Presidtnt's authority as

Commander-in-Chief. Please comment. Qi!.:..Does the State party attribute to any person the
right to authorize t0T!Urc or ill-treat anyone under

anY'ci~umstances,

if so, to whom? 042:

Does the State party considers that such an authorization is compatible with article 2 of the
Convention?

~Has

there been an independent investigation regarding the possible .

responsibility of the high ranking officials of the Administration, including the CIA,
Department of Defence, Department of Justice, and the armed forces, for authorizing or

consenting, in any way. including ihrougb the issuance of orders or guidelines, for acts
conunitted by their subordinates, especially during the interrogation of detainees. w~ich could

.'be considered as acts oftorture?
)1.

..

~Can ~n order from a superior be invoked as a ~ustification of torture? Q45;

Please indicate the appropriate legal measures to ensure this does not occur,

~Are

B51

,there

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CAT/ClUSNQI2

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any circumstances, such as "necessity", "self.defense", "superior orders"· or any other
principle which can be invoked as a defense for those who torture or iU·treat detainees?

Fonsidering th~ adoption of several versions of in~errogation rules, .

12.

instructions and methods, specially regarding suspects
of terrorism,
..

~bave

B5

those

"

interrogation rules, instructions and methods been unified for civilian and military use, and
Q1!;..specially for the CIA and the military intelligence services? ~Are persons detained
outside the $tato party, bu.t under its jurisdiction, protected by the same, norms regarding
jn~rrogation

rules, instructions and methods?
Article 3

13.

I.

flease provide detailed informatio.n on ~the provisions

implementing article 3 of the

Con~entjon

. B5

in domestic law, and whic:h procedures.aa.

including jUdicial remedies, ensure that it is implemented in practice.

~including

regarding persons under the jurisdiction of the Slate party outside its territory. Qll:..Have any

. decisions of non-refoulement to third 'countries, under article 3 of tho Convention, been
revoked? 054: Are any categories offQceign persons considered as having comrr.itted a crime 1
I

or suspected of having committed a crime automatically excluded flom the protection of

I

article 3 of the Convention?
14.

I

I

I

~Does the reservation of the State party to article 3 of the

B5:

Convention restrict or change the protecting scope of thi~ provision? ~Please explain the

practical differences between Article 3 of the Convention and the State party reservation ~o
article 3. 18 957: How and by whom the detennination that a person is "more likely than not"
to be tortured is made? Please provide examples, in abstracto. if necessary.

15. ~May foreigners, who claim the right not to be returned to a third country

I.

B5

under article 3 of the Convention, appeal to the courts against the decision of the Secretary of
Slate? 059: Do asylum seekers have the right to appeal against removal? Q6!t.Please provide
detailed information on any such procedure. .Q§l;..Does the appeal against a removal have

suspensive effect? Q§.&.Please provide infonnation on the number of appeals filed and their

I' § 33 oftbe report

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outcome. OO,;...Does the State party have a Hst of "safe third countries" for removal? ~Jr
so; how is it created and nwntained?

.J

16.

I

~According to information before

me

135

Committee, the State party has ·adopted a policy to send. or to assist in the scndin.g of persons

to third countries, either from the State party's territory or from areas under iss jUrisdiction,
for purposes of detention and interrogation. ~H.ow many persons have been affected by
this poUcy, Q66: to which countries were they sent to, and Q§1;...what measures have been
adopted to ensure that they would not be subject to torture? There are also allegations l9 that
peisons are detained without cbarges in certain cOllntries at the req'!est of the State part)" s
authorities. Q.2!;..Please comment.
17.

I

~e enforced or involuntary disappearances, which can

be considered a Conn of torture, a crime punishable by law in the State party~
~HOW does the State party prevent that persons returned to third'-c-ou-n-tr-ies-t-o-b-e-

B5
B5
B5

interrogated disappear?

~lease provide further inf~nnatioll on the procedure used

18.1

B5

to obtain diplomatic assurances that a person will not be tortured if removed 072: or extradite
to a third State. 20 QZ1;:..Have there been any cases.where those 8.SS\Jrances were not,considered
. adequate and, therefore, the person was not removed or extradi.ted'l Q.MLPlease provide
examples. in abstracto if necessary. 075: Please provide details of the assurances that must be
fulfilled by the receiving country in order for the State party 10 remove or extradite a person.

Q.7&;....What monitoring mechanisms are in place to assess if the assurances have been
bonoreii?

21

~Please provide further information on the "rule of.·

B5

non-inquiry" of the Secretary ofState.Z% 978: What purpose does this rule serve?

Report lJf the Special Rapporteur on Tonure (E7CN .4120041561~dd.l, § 1818 10 1833)
~ 33 of the report
,
2\ § 43 of Ihe n:pon .
22 § 41 of the report
It

10

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Page 7
Ihundled with 071·76

19.

A~Ordin8 to information

B5

before,'the

I
I

Committee, persons have been sent to third countries. which the Sta'te party itself considers
not to respect human righlS,:l3 where they have undergone tortutc and ill-treatment. Q1!1

~Were those cases investigated and what

'/
was the result of the investigation"

if any? Q§Q;...Are

B5

aU State party's ageooies. when

operating outside the State party's territory, under the obligation to respect the ,;on-

refoulement rule?

I

~Please explain

what

B5

~Does torture, under the State party's federal law, constitute

B5

I

"extraordinary renditions" are and ~what procedures and guarantees they follow? '

Artic:le 4
20.,

I

a specific ~ of criminal offense, when' committed inside the State patty?Z4 ~Please
provide examples, QM.;..lfnot, is the state party actively considering making torture a specific
federal crime, if committed inside its territory? ~Please explain how this ,!aC!4nu is
reconciled with the necessity of prevention of torture and, specifically, with the obligations of
the State party under articles I, 2 and 4 of the Convention? According to the State: party

~epmt,2$ acts of to~re "may be prosecuted" as other criminal acts (assault, homicide,'

kidnapping, rape, etc.). Q[t..PJease explain how and under which other offences ~hey could

I

be prosecuted

21.,

Deeording to the State party's report,26 the

Unifor~ Code of Military Justice

includes the offences of cruelty and maltreatment but does it include the offence of torture?

B5
I

988: If not, please explain why and how this is compatible with the State party's obligations
, under article 4 of the Convention.
Article 5

U The US Stale Department's annual Countty ~POrt5 oR,Hwnan Rights Practices
http://www.state.gov/gldrllrWhtrpV2004/eI4136,)11m
N U's,C.: Tido 18. part I. ~haplet 113C. ~ 2340
l! § 16 of therepon
26 § 19 ofthe repon

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22. ~In which ease do foreigners have penal immunity regarding the crime of

B51

torture, including if present in the territory of the State party, according to the domestic law of

tbe State party? .Q2.Q;..Have any prosecutions been initiated under 'the extraterritorial criminal

torture statute,17 considering that there were .investigatiollS pending at the date of submission
of the report'P' Q2.!.;..Taking in consideration that the prohibition of torture and conspiracy to
torture extends to contractors outside the State party,2t have any contractors been charged
with this specific offence?

Artlele 10

I 23·1

~Are

the terms o( tbe, Convention' applicable to the anned

B5

forces and other personnel, including contractors, when participating in peacekeeping or other

military operations either alone or as part of an i~temationally authorised contingent?O
Q;i;!;...lf so, have they been informed of their obligations under the Convention andO

I

24.

~whicbother international human rights instruments appl), to them?

~what 'education

programs and information. rules and instructions and

B5
B5
B5'
B5

mechanisms of systematic review exist for military personnel involved in Ihe custody,
interrogalion or treatment of individuals in detention?

I 25.
~
What use does, the State
make of private contractors in respect of the operation of
, I detention facilities and interrogation of detainees and how is this personnel recruited? m£

B5

part)'

According to information before the Committee, hUl1)an right training for contractors is
inexistent or very limited. Please provide detailed information on their training.
Article 11

Title 18, part t chapter 113C, § 2340A
§ SO ofthe rcporl
19 § 12 of the report
11 U.S.c.:
If

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~COUld

26.

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the usc of the word "extreme" in the December 2004

memorandum'o ereate unncc:essary confusion for trainers and personnel, considering that,
according to tho Report by Major General Fay. Lieutenant General Jones, and General Ker:na.

"military personnel or'civilians app~ to have abused Iraqi prisoners due to (..•) confusing
interrogation roJes".31

27.

I

~visions

lmay be bundled-with Q98 above.] Q99: Please provide detailed examples of

I

B5'

of interrogation roles, instructions. methods and practices after the August 2002

memorandum was superseded by the December 2004 memorandum?2 ~ there any

specific interrogation rules. instlu<;tions and methods for specific agencies or Q.J..Q1;..do the
same apply to all personnel, including the limits on interrogation techniques? Q I02: Please .
provide the Committee with all the interrogation rules. instructions and methods

c~ently

applicable.
Article 11

28.

I

~

I

B5'

Please provide information on the programs, activities, resources and results of the Civil
Division Rights of the Department of Justice?
29.

I

~SinceOctober

I

1999. what has been tbe outcome of the enforcement of the Civil Rights of Institutionalized'

Persons Actr3
.JL-'lIt.:..:lO~S"-:.How many investigations ended ill prosecution for torture or cruel.

L

inhuman or degrading treatment or punishment or similar offences? Q.l.Qfu...What measures
have been taken for the betterment of conditions of detention? Please proVide detailed
information.

30.

I

---J

Please provide disaggregated statIstical data regarding deaths in custody according to Q.!Q1;
location of detention, and 0108; gender,

~age. ~ethnicity

of the deceased and

US Dcpartmenl or Justice, Office of Legal Counstl. Office of-the Assistanc'Allomey General. Memorandum
for l!mg B, Corney DePuty Allomey General. December 30 2004
)1 Page 7S of lbe report (annex I)
.
)1 § 62 of !he report .
)) § 26 of the ltport
)(I

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,CAT/ClUSNQI2
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Q!l.!:....cause of death.

~Please

provide detailed information on the results of the'

investigations in respect of those deaths, Q!11;jncluding any specific recommendations made
following the jnqUirieS?~

B5

]
31.

I

~Iease provide infonnation in respect of the numerous deaths of detainees which

B5

have occurred under the State party's jurisdiction Q1M.;...in Afghanistan Q.lllLand Iraq,
allegedly after being torture. ~lJave those death been tully and impartially investigated,

those found to be responsible prosecuted and punished in accordance with the serio~sness of
the offences?

I 32. I

ray

be lumped with Q31 above.] Please provide updated detailed information·

B5

on any specific cases of torture or cOIel, inhuman, or degrading treatment or punishment or .

similar offences committed by personnel of tbe State party's in ~Afghanistan, Q.lll.;.
Iraq and

~Guantfmamo

Bay, inclpding number of cases, their status, before which

authorities they are pending and their olJk.:ome, if any.

~In

'1

the view of the State party.

how did such acts occur, and .Q.1ll;..what actions have been 3;dopted to ensure that there will
be no re-occurrence of any such acts j~ places of detention under the State party's control?

I 33. I

I[may be lun1nsd

with Q3l above.'

B5

Please comment on the information that the official investigations conducted into allegations
of torture and ill-treatment in Ql22:Afghanistan and

~Jraq,

and especially in the Abu

Ghraib prison, were not fully independent. .Q.lli;..Were any investigationil 4 carried out by an
independent. judicial or non-military authority?

~]f

not, are any independent

investigation foreseen in the future? Q126:Are there any independent entities that monitor
these facilities (national

or intemational or non-governmental)? .Q.!61.i..Please provide the

results of the investigations Ibat were, still ongoing at the time of submission of the report,

including by the Naval Criminal Investigation Service and by the Naval Inspector General.3'
Articles J3 and 14

Pag~ 74 oflhc report (allnexl)
" Page 68 of the rcpolt

34

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~Do the Combatant Status Review Tribunals and the A~ministrativc
Review ~ have any jurisdiction regarding comptainlS of toJ1Ute, and cruel, inhuman or

. 34.

1

B5

degrading treatment or punishment? Q129: How is their impartiality 'ensured when dealing
with such cases?
35.

~PI~c pro~idc

detailed information on how, in practical tenns. the

B5

"Justice For All Act" of 2004 has provided an improvement of the rights of victims of to~
. to obtain redressr7 Q!l!.;..Sincc the enattment of the Act, has ~ere been an increaso in the

number ofcomplaints? ..Q..l.J.&.Please provide statistical infonnation.

36.

I

~What remedies are available to detainees under

the .State party jurisdiction outside the State party tenitory with regard to acts of tOJ1lJl'C, and
before what authority they may seek compensation?

~How

many detainees' have

exercised this r:ight so far'? ~lease provide a breakdown of the statistical data regarding
compJaints' of torture or iII·trealment according to gender. age, location of the complainant,
and result of the investigation. 0136: Has compensation been provided to date. to how many

victims, and what amounts were involved?

~Please

provide information on

compensation given to the Abu Ghraib victims."
37.

~PJease

explain how the Prison Litigation Reform Act which contains a

B5

provision establishing "that no federal civil action may be brought by a prisoner for mental or
emotional injury suffered while iii custody without a prior showing of physical injury..3~ is
compatible. amongst others, with article 13 of the Convention. considering that it limits the
right of victims to complain and increases the possibility of impunity for perpetrators.

38.

I

~Iease indicate if victims of torture perpetrated by personnel of the

State party have been treated in any Centre for Victims of Torture in the Slate party.40

39.

I

~l;llggCSt that we provide information llS

of April 2006] 0140: Please update information on the habeas corpUs cases pending before

I'

B5,

BS:

I

I

I

Page 53 of Ihc TqlOrt (annex I)
§ 6S orlhe report
JI Page 79 ofthe I'qJGrt
" § 153 ofthe report
40 § 84 of the report
31

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dismct courts/' following the decisions of the U.S- Supreme Court in uRasul v. Bush". Q!!!;
Does the State party ensure the right of habeas corpus to detainees under its control in other
parts of the world?

I 40.

~Is

I

the State party

considering reviewing its decision not to apply the Geneva Conventions to detain~ woo are ,
considered "enemy combatants" by the Staie party. 'in Afghanistan, ~q, GuantA~mo ~ay or
in other location under the jurisdiction of the State party(, which creates a climate of impu!lity
for cruel, inhuman or degrading treatment or punishment of those persons]? QMJ.;...What is
the exact legal status ofthose persons and ~what international instruments are applicable
to them, in, order to protect their human ri~ts.
Artide 15

41.

~Please provide examples ofjudicial cases where tho courts have decla;ed,

statements inadmissible on ground ofhaving being obtained coercively, ifany.
42.

~In view of the prohibition contained in Aniple 15 of the Con vention on

BS'

the use of any, statement obtained as a result of torture from being used as evidence in any
proceedings except against the alle~ed torturer, how is this provision ,specifically guaranteed

,I at the Combatant ~tatus Review Tribunals and at ~c Administrative Review Boards?·2 ~
Please provide 'infonnation on any statement which has been considered inadmissible so far.

Artide 16

I 43·1

fme reservation to mitle 16 limits

BSiI

the meaning of cruel. inhuman or degrading treatment or punishment to the treatment or

i

punishment prohibited by the fifth, eight and fourteen amendments to the Constitution. Q148:

~I
41

i

Page S9 of tbc: report
Page 53 of the report (annex 1) .'

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In practical terms, what kinds of treatnient or punishment are prohibited, and admissible, by

the amendments but not by the Convention? Please provide concrete examPles.

44.

I

~Consjdering the reservation to article 16, is this article

B5

fully applicable outside the State party territory, in temtories under the jurisdiction of the
State party or under the de facto control of the Stale party~ ~Please clarify what is
considered to be within the Special Maritime and Territorial Jurisdic!ion? Q..I.ill..Does article
16 of the Convention apply to the Special Maritime and Territorial Jurisdiction?" ~Are
cruel, inhuman or degrading treatments. or punishment, committed by its agents against
foreigners outside the territory ofthe State party. punishable by law in the State party?
45. ~Plcase provide examples of practical implementation of the National

I

B5,

Detention Standards which prOVided non·citizcns detainees with better· condition of
detention. 4S ~Please provide info~ation on !he measures taken to address the
complaints of harassment and sexual violence against immigrant women ·by border patrol
agents.
46.

I

.

~ACCOrding

to

B5

I

information before the Committee, various cases of death after the use of "insers" have
occurred, which

rais~

serious concerns about their safety.

~PleaSe

provide detailed

information on their use, including any measures taken to make their uSe safe?
47.

I

~Why are juveniles detained with adults. in federal or state

B5;

facilities. and under which conditions. considering that federal law prohibits that juveniles be

held in custody with adults. QJ2LHow many juveniles are still detained with adults, in
federal or slate facmties't~

. 48. ~ccording to information before the Committee, detained.women are kept
$hack~~g childbirth. ill&..Why does the State party consider such a measure to be
necessary? Please enundate the measures taken to prohibit detainees been placed
in ~
I

B5

"Defucfo conlrol of th~ Srate party", means, e.8-, lerritories, Of part of tcnitorits, where Atnet1Cl1n ~ ate
command.
4 § 45 of the n:port
"§ 126 of the report
46 § 116 of the report
U

o~ting UDder American

·1

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chain gangs and,.Ql.@;..in bitching posts.47 ~What measures have been taken to review
the regime of super maximum security prisons""!
'
49,

I

~What measures have been taken to prevent sexual violence

detainees, including inter-prisoner vioJenC(e?

~Regardlng

to,

B5

females, juveniles and

immigrants detainees, which specific measures bave been taken to protect them against this
type of violenCe? .Q1M.;...Please provide the number of complaints lodged by detainees,'

d 165the outcome of the inveStigations ~and the compensation paid to the victims.

so.

~HOW the use

of solitary

cO~finc~ent is regulated and ~ow the

monitoring of the 'detainees' mental is health camed Olltot']

r-

-lL..x~16:u:.:..: H,ow

is prolonged isolation and

I

B5,

B5
B5

indefinite detention, with or without charges, compatible with the obligation of the State party
under article 161

~Please provide info~tion in respect of allegations ~f extreme pain during

B5

I 0171: How exooutions are monitored, especially those by lethal injection?
I 52. I
~ACCOrding to information before the

B5

IS].

the procedure of execution by lethal injection, as the sedative is not properly administrated.so

Committee, the State party has authorized the use of interrogation techniqu~ such as 20·hour
interrogations, stress positions. is.olation,. sensory deprivation, hooding, exposure to cold or
beat, sleep and dietary adjustments, use of dogs to instil fear, removal of clothing, forced

shaving, use of female interrogators, physical contact and removal of religious items? Q!12.;'
If so, how does the State party reconcile t~e use of such techniques with its obligations under

article 16 of the Convention? Please provide detailed information on interrogation teChniques
authorized and practised in

~Guantanamo

Bay,

~Afghanistan, Q.!1~...Jraq.

and

0176: in other places of detention under the State party control. QlZZ;,Are there any specific

rules regarding tlie use of gender or sexualized practices as methods of interrogation?

, I
I

I

41 § 121 and 124 of the report
., § 95 oe the report
., Report of the Sp~eial Rapporteur on Torture (E1CN.41200S/621Add.!, § 18.57)
" Report of the Spedal Rapporteur on Tottun: (£leN.4/2005/621AddJ, § 18S8)

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/While acknowledging the federal structure of the State party, it

53.

B5

is the federal State that responds for the international obligations assumed by the State party
under the cOnvention. Q.l1kPlease provide detailed infonnation on the existing mechanisms

the State p~ has to monitor the implementation of the Convention at the State level. in
order to fulfill its international obligations under the Convention?
lplease provide detailed infonnation on the 0179: McCain and Q180;

I

I

I

B5
B5

Graham-Levin amendments Q181: as well as on the changes they wilJ introduce to the current
legislative, administrative. judicial and other measures preventing cruel. inhuman or

degrading treatment or punishment.

Otber issues
~Is the SCate party considering making the declaration

54.

B5

under article 22, recognizing the competence of the Committee to receive and consider
individual communications?
I

I

5S.

. reservations

~IS the
10

State party considering 'Vithdrawing any of its

I"

I

B5'

tbe Convention, as they might be interpreted, and applied, as limiting the full

application ~f the: Convention?

56~

~Does the Stale party envisage rati~ing the Optional ProtO¢ol

.

B5

to the Convention against Torture? If so, has the State party taken any. SI~S to set up or
designate a national mechanism that would conduct periodic visits to places of deprivation of
liberty in order to prevent torture or other cruel, inhuman or .degrading treatment or
punis~ment?

57.

I

~Please

indicate whether Ihe

Stat~

party's'

le~isJation

B5

prevents and prohibits the production, trade, import, export and use of equipment specifically
designed to inflict torture or other cruel, inhuman or degrading treatment ~lf so, please
provide information about its contents and implementation. OJ 87:1£ not, please indicate
whether the adoption ofsuch legislation is being actively considered.

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17

CAT/ClUSAlQI2
page 16
B5
L.-

--J'-~.Please

administrative and other measures the

Sta~

B5

to the ~reats of,
these measures have affected human rights

party has taken 10

terrorism, and please describe if, and ~how.
safegu~

provide infonnation o~ the legislative•.
re~o~d

in law .and practice.· Q 190; Please describe the relevant training given to

,I

la~

cnfor<:ement offtcers. ~the legal remedies available to persons subjected to anti-terrorist
measures•.Q.l21.;...lhe number of complaints of non-observance of internationaf standards, and
QJJU.;.the outcome of these complaints.

B5
L..-

r--4·Please provide information on the legislative .

and other measures the Slate party has taken to prevent domestic violence and

B5

~IO

classify acts of domestic violence as specific offences under the criminal law.

UNCLASSIFIED
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UNCLASSIFIED
ANDREW TVRrE MP

•

RELEASED IN PART
B5

\

HOUSE OF COMMONS
LONDON SW it\. OAA

',.
',. 'II

Dr Condoleezza Rice
Secretary of State

By hand
30th January 2006

Dear Secretary of State
I am writing to you again in my capacity as Chairman of the AU Party
Parliamentary Group on Extraordin.ary Rendition. As you may recan, this is a
cross party group of over 50 MPs and Peers from the British parliament.
We are 4eeply concerned about allegations that the Vnit~d States has carried out
extraordiQary renditions. We are also concerned about allegations t11at the UK may
have provided Io.sistical silpport to US tli hts as individuals are trans orted to an
from If coun.- Jes. sue as EgM Jordan and Syrl,a.
We read your statement of 5111 December on this issue witll care. We
commissioned a leading authority. Professor James Crawford, Dean oftbe Faculty
of Law at the University of Cambridge, to give his opinion on it (attached).
B5

Two important conclusions can be drawn from Professor Crawford's Opinion,
First. to comply with its legal obligation the British government inust satisfy i~selfr---------,
that Extraordinary Rendition is not leading to torture. As Professor Crawford puts
B5
it 't6e question that must be asked is whetner torture is likely to take place if a
'---------' person is transported, irrespective of whether or not the~
gve ment claims
the answer is no, or what its hopes or bel iefs may be' {para. 2 .

r----------,

I

lhat

'---------'

B5

ChClirman: Andrew Tyrie MP
Vice Chairmen: Chris Mullin MP, The RI Hon Sir Ml!Tlzies Campbell MP
Specialist Adviser: Mark PaWs. f.LM
APPG on Extrnordinary Rendition,
c/o Office of Andrew Tyrie,
,
House t>fCommollS, London, SWIA OAA

UNITED STATES DEPARTMENT OF STATg'cf0201219.6371 Fax' 0207 219 062~
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED
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UNCLASSIFIED

~

Secondly, relying on your assuranceS provides little OJ: no legal cover for the UK
government. Your assurances" are based on the US government's interpretation of
its obligations, but these are as good as worthless for ensuring compliance with
Britain's legal obligations.

j

r--------'-~....,

B5

In particular, as Professor CT;lwford clarifies, any UK assistance to US aircraft
which may be engaged in Extraordinary Rendition should be conditional on the
US respecting obligations not to engage in torture, a~ the legal standard at which
tbe Obligations apply to ~e UK. In other words; if the US is to use, or has used.
UK airports. and airspace for these practices, the US must abide, or have abided,
by the teg~l rules that bind the UK and UK courts' interpretation of them, not just
US law or the US administration's interpretation of them.
We would very much welcome your response to these concerns.
We would also be delighted if you felt able, ifonly briefly, to meet with us - either
at a fuJI meeting specially convened for the purpose or with Chris Mullin MP, The
Rt HOll Sir· Menzies Campbell and me; "each of us from one of the main parties in
Britain.
.
If you are not able to attend, perhaps your legal adviser, John Bellinger, may be
a~le to find the time to addr~ss us when he is in the UK early February.

in

'--

--'1 am putting this Jetter. into the public domain..

Yours sincerely

ANDREW TYRIE

Chairman: Andrew Tyrie MP
Vice ChaiTmen: Chris Mullin M?, The Rt Hon Sir Mellzies Campbell MP
Specialist Adviser: MaTk Palli~ l.LM
.
APPG on Extr30rdillary Rendition.
clo Office of Andrew Tyrie.
House of Commons. London, SW1A OAA
Tel 0207 219 6371 Fax 0207 219 0625

UNCLASSIFIED
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UNCLASSIFIED
RELEASED IN PART
B5

\
OPINION
~xtraordinary rendition of terrorist suspects through United

Kingd{)ID territory
Introduction
1.
We are asked by the .All Parly Parliamentary Group on Extraordinary
.Rendition to advise on various aspects of the statement made by United States
S~crctary of Sta~e Condoleezza Rice on 5 December 2005 in response to allegations

that the United States is engaging in unlawful renditions of terror suspects, and to the
concern that United Kingdom territory or facilities may have been used as transit '
points in that context.
The Secretary's state~ent makes the following points:

2.
(a)

The, United Stat~s acknowledges the use of rendition to transport terrorist
suspects fro~ the country where'they were captured to their borne country
or to other countries where they can be questioned, held or brought to
justice;

\
,

\

.

(b)

Such renditions take place in accordance with Unlted States law .and the
United States' treaty obligations including under-the Convention Against
Torture;

(c),

'The United States does not authorise, permit. tolerate or condone torture.

under any circumstances;
(d)

The United States has respected' and wiU continue to respect the
sovereignty ofother countries;

,(e)

The United States does not transport, and has not t,ransported, detllinees
from one country to another for the purpose of interrogation using torture;

(f)

The Unit~d States does n~t use the airspace or tbe airports of any COUlltry

for lhe purpose of transporting a detainee to a country where he OT she will
be tortured;

(g)

The United States has not transported anyone, and will not tra11sport
anyone, to a country where the United States believes the person will be
tortured. Where appropriate assuranc~ are sought from the receiving
Govemment that a person being transferred will not be tortured.

3.
In the statement, Secretary RiCe makes a number of additional remarks
concerning the u war against terrorism" including the status of captured members of
al-Qaida and the legality; in genera}, of the practice of renditiol!. ' it is not our purpose
to deal with these issues in this memorandum. Nor will we examine the _~pplication of
UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

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the Chicago Convention to issues of overflight concerning civil or ,State aircraft. This
memorandum is confined to 'the issue of the legality of material assistance by one
State (the transit State. here assumed to be the UK) to another (tho rendering State) in ,
circumstances where a third State (the receiving State) may subject persons to torture
oreruel. inhuman or degrading treatment in violation ofintemationallaw.
4.
Reference was made to the alleged practices ofthe United States in a landmark
decision handed down on 8 December 2005 by the House of Lords. I The question at
issue .there was whether the Special Immigration Appeals Commission could make
use of evidence which had been or might well have been obtained by torture
committed by a third State'outside the United Kingdom without any cQmpJicity on the
part of the United Kingdom. On the basic.question ofilie inaillnissibillty ofcvidence
obtained abroad by torture, they were unanimous. Thus Lord Hoffinann said: .

B5'

"The use oftonure is dishonourable. It corrupts and degrades the state which
uses it and ·the legal system which accepts it. When judicial torture was routine
aU over Europe. its rejection by the common law was a source of national
pride and the admiration of enJightened foreign writers such as Voltaire and
Beccaria. In our own century, many people in the United States. heirs to that
common law tradition., have felt their country dishonoured by its use oftorture
outside the juris~iction and its practice of extra-legal 'rendition' of suspects to
countries where they would be tortured ..."!.
.
S.
It should be emphasised. however, that at presen~ there is no evidence that the
United Kingdom has provided any material assistance to the United States to carry out
~ renditions in breach of international law. All that can be said is th?t alJeg;itions bave
been made Utat the United States has seized terrorist suspects and sent them to third
countries, possibly in aircraft which in ~he course of their journeys may have landed in
the United Kingdom. for inteJ:I'ogation in circumstances that may be unlawful under
international law. The question of the United Kingdom's responsibility is thus
essenti.allY one for the future - including the dutY of inquiry in the light of the
circumstances now known 01 reasonably suspected.

I

I

6.

B5

,In this opinIOn, we .will examine the formulations used in the Scc13rtar;y's'
with respect to the UTl!!ed States' international responsibjlity concerning the
prohibition of torture and analyse whether those formulations comply with the
equivalent fonnulations adopted by the United Kingdom. We will do this by
examining three main points:
.
~em~t

(a) The definition of torture: what is the definition of torture and what are the
rel~y.!!!!..t differences in thec,l.efinition relied on by the United States and the

Unit.ed KJngdom?

-

I
.
A (FC) and others (FC) v. Secrt!mry ofSlalefor the Hom!? D",partmettt; II and others (FC)
llnd other.H. Secretary ofState fo/' the Home Departnu!Ill (CorYQined Appealt), 8 December 200S,
[2005l UKHL 7I(Lord Bingham ofCornhilf. Lord Nicholls of Birkenhend, Lord Hoffmllnn. Lord Hope
?f CraIghead, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of baton-under.Heywood).
Ibid, para 82 (lord Hoffmann). citing J Watdron, "Torture and Positive Law: Jurisprudence
-

for the White House" (2005) 105 ColumbUl I.QW Review 1681.

"

2·

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(b) The standard of the risk of torture in, the receiving State: ~hat standard of
risk of torture applies and what are the differences in the approaches taken
by the United States and the United Kingdom?'·
,
c) ·The question of the United Kingdom's own obligations in, light of the
allegations made? '
' .

n

L

Tile dermition of torture
7.
' The first point to arise is a definitional one. Torture is prohibited in both
general international law and in a range oftteaties including the Convention against
Torture and Other Cruel, lnhuman' or Degrading Treatment, or Punishment (T~rture
Convention). the lntemationaJ Covenant on Civil and Political Rights (article 7) and

the Europ6all Con~ention on Human Rights (article 3). hi general intemationallaw,
the prohibition against torture a peremptory norm from which no derogation is
permitted; likewise under tbe European Convention on Human Rights no derogation
, is permitted,from article 3 even in time of national emergency.
.

is

8.
Secretary Rice states that ''torture is a tem that is defined by'law", In fact
torture is defined ~n the Torture Convention in'the following tenns~
"a,ny act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for sucb purposes as obtaining from him or
a third person information or a confession, punishing hiJ11 for an act he or a
third person has committed or is suspected of .having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or.cicquiescence of a public official or other
person acting in an officia,l capacity. It does not include pain or suiJerlng
arising only from. inherent in or incidental to lawful sanctions.,,3

The Convention does not define cruel, inhwnan or degrading treatment, however the
Committee Against Torture and the European Court of Human .Rights have given
content to the meaDing of such .treatment in their jurisprudence. One of the leading
cases,on POlJlt ~s Selmouni v Frcln,ce in which the European C,ourt said:
"The. acts complained of were such as to arouse in the applicant feelings of
fear, anguish and inferiority capable o( humiliating and debasing him and
possibly br~aking his physical and niora) resistance. The Court therefore finds
elements which are sufficiently serious to render such trcarnient inhuman and
degrading: s4
,
This decision was referred to with approval by the House of Lords in its jUdgment of
8 December 2005. 5
,

S

'

Torture Convention, Art. I.
(1999) 29 EHRR 403
A (FC). and other.~ Y. Secretmy ofStme for the Home Depa!llllenl, [2005] lJKHL 71 p3ro 29

(Lord Bingham ofComhill),

'

.

•

3

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9.
The United, Nations definitions of torture and cruel) inhuman or degrading
treatment have been interpreted and applied by the House 9f Lords and European
Court of Human Rights. In its judgment of & December 2005, the House of Lords
referred to the fact that the common law "has from its very earliest days •.. set its f~ce
firmly against the \lse 0 f torture/of) The Court proceeded to affum the definition of
torture contained in the Torture Convention and to draw conclusions for the United
Kin~dom from the peremptory status of the prohibition of torture under international

\

law..
10. ' The European Court of Human Rights has examined numerous cases
involving allegations of torture and cruel. inhuman and degrading treatment) against
State parties including the United Kingdom. While mi~treatmen.t must attain a
, minimum level of severity to fall within the scope of article 3 of the European
Convention on Human Rights, the Court has genera~ly adopted a somewhat lower
s
threshold for this standard in respect ofpersons held in detention.
11.
One of the leading cases is Ireland v. United Kingdom.') The Court held that
various techniques 'used to intetrogateliilii'iioiiaIi'sf(JeTh.inees in Northern Ireland
constituted inhuman OJ:" degrading treatment. The techniques included forcing a '
detainee to stand spread-eagled against a wall for extended periods of time with the .
majority of his weight on his fingertips; covering a detainee~s head with a hood;',
subjection of the detainee to a loud hissing noise; sleep deprivation and deprivation of
food and drink. According to.the Court:

The five techniques were applied in combination) with premeditation and for
hours at a stretch; they caused, jf not actual bodily injury, at least intense
physical ahd mental suffering to the persons subjected thereto ,and also led to
acute psychialric disturbances during interrogation. They accordingly fell into
the category of inhuman treatment within ,the mell.{ling of Article 3. The
techniques were also degrading since they were such as to arouse hi their
victims feelings of fear, anguish and inferiority capable of.humiliating and
debasing them and possibly breaking their physical or moral resistance. 10
' .
The House of Lords has since said that the conduct complained of would now be
regarded as torture. I I
•

Ibid, para 11 (tord Bingham of Comhill).
'Ibid, Pllras 32-3 (Lord Bingham of O>rnhi1l; cf Lord Hoffmann at para 97: "I would be coment
for the common law to accept the definition oftorturc which Parliament adopted in section 134 ofthe
Cri~ina.1 Justice Act 1988, namely, the infliction ofsevere pain or SlIffering Oll someone by a public
?ffiClalll1 tn<: performance or purporte~ perfo~nce of his I>fficial duties. That would in my opinion
mclude the kmd oflrealmllnl cbacllctcmcd as Inhuman by I:he European Court of Human Rights in
Irelllllef v United Kingdom bUI would not include all treatment which that court has held to contravene
article 3:'
R
Selmouni v. FraTlce (1999) 29 EHRR 403; Ribitsch v. Austria (1996) 21 EHR,R, 573. Bolli
dec~sions stand for the proposiliOll Ihat <my recourse to physical force which is /lot made strictly
~ecessary by an applicant's own conduct diminishes human dignity and will in principle breadl <In. 3.
Jreltllld v. Unite,1 KiJ:gdom (1978) 2 EHRR 25.
~
I~~p~l~
,
II
A (FC) and olhers v. Secl'f!f(lry ofStarejiir llie /lome Deparlmenl [20053 UKHL 71 pllJ'a 53
{lord Bingham ofCornhl1l).
"
,
7

'4

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:'

12.
There have been suggestions made in United States material that under United
States law certain practices such as "waterboarding"l:l do not constitute torture or the
United States' interpretation of what constitutes torture or cruel, inhuman or
degrading treatment. This intezpretation of the definition of torture is clearly at odds
with the views taken py UK courts and t~c European Court ofHurnan Rights. Under'
UK law, using "waterboarding" to obtain information from a suspect would, clearly
constitute both torture and cruel, inhuman or degrading treatment. Lord BlOgham,
(with whose speech on the principal issues the rest of the members of the House
agreed) expressed the view that 'various techniques detailed in lhe so-cal1ed "Torture
u
Papers" would also fall withi~ the definition of torture under UK law. We have no
doubt that "waterboarding" and practices of analogous severity would be condemned
by United Nations treaty monitoring bodies such as the Committee Against Torture,
ls
United Nations Special Rapporteur on Torture 14 and the Human Rights Committee.
13.

The central point to note is that the United Kingdom is bound by its own
obligati~ns in respect of torture, and not by any view taken by the United St~tes as to
what constitutes torture. The United Kingdom's obligations arise independently of
those of the United States. The same is trne with respect to the standard ofthe risk of
now tUm',
torture, to which

we

The sOt.ndard of the risk of torture under the principle of nOIl~re!oulemellt

14.
Under international law, States are prohibited from sending a person to a
territory where it is believed that he will be tortured. This obligation is commonly.
referred to" as the nQn-re!oulement principle. It arises both under general international
law and under intemational treaties to which the United Kingdom is a party. These
1%
Th~ practice ofhwilterhoardillg" has been described liS binding a prisoner to an inclined bolltd .
with his feet raised and head towered. Cellophane is then wrapped over me prisoner's face and water is
poured over him causing him to ·gag. The practice continues unlillhe prisoner offers information or a
confession: "CIA's Harsh Interrogation Techniques Described", ABC News, 18· November 2005,
.
available llt: lltm://abcnews.go,comIWNTlInvestigationlstor;y?id=1322866.
to
A (FC) and others v. SecreltJry ofState for the Home .Department, [2005] UKHL 71, para 53
(Lord Bingbam of Cambill): "{S}ome of the Category n or 111 lechniqucs detailed in <1 J2
memQ1'andum dated I! October 2Q02 addressed to the Commander, Joint Task Force 170 at
Guantanamo Bay, Cuba, (see The Torture Papers: rhe ReQd to Abu Ghraib, ed K Greenberg lind}
Orate!, (2005), 227-8), would now be held to faJl within the definition in article I of the Torture
Convention.". The techniques referred to are as follows: Category n: Ihe use of stress positions (like
standing) for a llUlximurn of four hours, the use of falsified documents or reports, \lSe of the isolation
facility for up to 30 days, interrogating the detainee in an environment olher than the slalt(lard
interrogation booth, deprivlltion of light and auditory stimuli, placing a hood over the delllinees head,
the use of 20 hour interrogations, removal of an comfort items (including rcligious ilems), swilching
the detainee from hot rations to MREs. removal of Clothing, forced grooming and using individuals
detainees individuals phobias to ind~ce stress; Category Ill: the use of scenarios rlcsigned to convince
the detainee that death or severely ?a{nful consequences are imminent for him andlor \)13 family,
eXpo.sure to cold weather or water (with appropriate medical monitoring), \l$C af a wet towel and
dripping Wliter 10 induce the misperceplion of sllffocntion, use of mild, non-injurious physical contact
such as grabbing, poking in the chest with 111e finger !1nd light pushing; Grecnberg and Orate{ (cds) The!
Tv,-/ure Plrpel's: The RI)O/!w Abu Gh1'llib, (CUP, 2005) 227-8.
14
• The Special Rapportcur on Tonure has condemned numerous cases involVing credible
allegatIons of torture by the use of water in similar circumstances: UN doc E1CN.4/2005/62/l\dd.l
97,583, l825, 1829.
.
.
See for example: Human Rlgllts Camnllttee, General Comment No. 20 concerning prohibition
of torture line cruel treatment or punishment. 10 March 1992.

.gafSS.

5

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"

The United Kin~dom's independent obligations in light of the ailegations, made

B5

1. ' Regardless of the United States' position, the United Kingdom has an
independent obligation to ensure that its territory is not used to send any person.t o a '
•untty wber~ there is'a real risk that he may be tortured.
2. " International1aw requires torture to be guarded against by active measures.
'---------',!A.~ Lord Bingham stated ..... the jus cQgens ergo omnes nature of the prohibition of
torture re'quires member states to do more'than eschew the pr~tice of.torture,,,22 In
addition to the duty to refrain from committing acts of torture, States have a positive
B5 obligation to protect individual~ by ensuring that they are not subjected to conduct
constituting a violation of international law. This positive duty requires States to
investigate arguable breaches of the Torture Convention that may have occurred 011 its
tetntory, incfuding allegations of complicity or participation in torture, In Lord
Bingham's words:
.
'

D

,

"A Committee against Torture was established under article 17 oftbe Torture
Convention to monitor compliance by member states, The Committee bas
'recognised a duty of states, if allegations of torture are made, to investigate
them; PE v France, 19 December 2002, CAT/C/29fDlt93/2001, paras 5,3, 6.3;
z3
GK v Switzerland, 12 May 2003. CATICl30~/219/2002). para6.10.

The du~y to' investigate arises where a prima facie case exists tl1at the Convention has
been breached, Credible infonnation suggesting that foreign nationals are being
transported by officials of another State, via the United Kingdom, to detention
facilities for interrogation under torture, would imply a breach of the Convention and
most be investigated.

B5

23.
The matter of diplomatic assu~nces has been raised in respect of the present
allegations. It has been suggested that both the sending State and transit State may be
exonerated f~m liability onder international Jaw if assurances are obtained from
offici~ls of the receiving State that persons transferred into their jurisdiction wilt not
be subject to torture or cmeI, inhuman or degrading treatment.
'

B5

I

24.
Th~ European Court of Human Rights dismissed the sufficiency of obtaining
assurances to exonerate the United Kin~dom from a breach of the non~refouJement
obligation in Ch<;thal v, Unite d Kingdom. 4 The Government of India provideu written
assurances to the :United Kingdom to the effect that Chahal "would have no reason to ' - - - - - - - - expect to suIfer mistreatment of any kind at the hands 'of the Indian authorities", The
Court found:

B5
y

..Although the Court does not doubt the good faith of the Indian Government
in providing the assurances mentioned above (paragraph 92), it would
appear that, despite the efforts of that Government, the NHRC and the
rndian courts to bring about reform, the violation of human rights by certain

:!2

A (Fe) alld otlrers v, Sltcre fary oIS/ate/o/, the Home Department, [2005] UKHL 7\, para 34
Lord Bingham of Comhill).
3
Ibid, para 36 (~rd Bingham of Comhilt).

~

(19%) 23 EHRR 413.

8

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'I'

UNCLASSIFIED

..

. .
members of the security forces in P1IDjab and elsewhere in 1ndia is a .
recaJcjtrant and enduring problem... Against this background,. the Court is
not persuaded that the above assUrances would provide Mr Chahal with an
. adequate guarantee ofsafety. ,.2S
.
25.
Where governments are using public power to transfer persons at risk to a
given country, in circumstances where earlier practices support credible allegations of
~ortur~ in that cotintry, me;:.e assurances by the government. unaccompanied by other'
action, will be ins.ufficient.
_. -

B5

James Crawford se, FBA
Whewell Professor of International Law,
University ofCambridge
KylieEvans
Lauterpacht Centre for International Law
9 December 2005

15 .

Chahal v. Unlt(!d Kingdom (t 996) 23 EHRR 413. para 105:

9

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,i

Elizabeth MKiingi

Ki i ngi

1.-1 ~
RELEASED IN PART
Not:;"~ie1.4(B), 1.4(D) L-/A

02/16/2006 10:31:10 AM

From OB/lnbox:

Elizabeth M

cable
Text:
CONFIDENTIAL
TELEGRAM

February 15, 2006

TO:

SECSTATE WASHOC - PRIORITY

Action:

EUR

From:

USEU BRUSSELS (USEU BRUSS 524 - PRIORITY)

TAGS:

EUN, PGOV, PHUM,' PTER

captions: None
subject:

SECSTATE LEGAL ADVISER ON WAR ON TERROR

Ref:

None

classified' By: USEU POLOFF TODD HUIZINGA, FOR REASONS 1.4 (B)

AND (D)

Bl

2. (SBU) On February 7-8, Secretary of State 'Legal Adviser
John Bellin~er met with a wide range of EU and member-state
officials, lncluding Robert cooper, Director-General for

Common Foreign and security policy at the EU council
secretariat; Jean-Claude piris, the Director-General of the
Legal Services of the EU council Secretariat; Michel petite,
Director-General of the Legal services of the European
UNITED STATES DEPARTMENT OF STATE
page 1
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, A/ISS
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: CONFIDENTIAL REASON: 1.4(B), 1.4(D)
DECLASSIFY AFTER: 13 FEB 2031
DATE/CASE iD: 30 OCT 2008 200706444

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"

UNCLASSIFIED

.
NotesTele
Commission; Jim ClODS, EU council secretariat Director for
Transatlantic Relations, Human Rights and UN; and Gjjs de
vries, EU coordinator for the Fight Against Terrorism. The
visit was capped by a two-and-a-half-hour discussion with the
EU Legal services working Group (COJUR). comprising the MFA
Legal Advisers of the 25 EU member states, plus ~ommission
and Council Legal Services and Romanian and Bulgarian
observers.
Bl

I
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NotesTele .
Bl

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Bl

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Bl

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...

." "

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Bl

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I,

.'

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.

NotesTele
18. (U) This message has been cleared by Legal Adviser John
Bellinger.
Gray

Additional Addressees:
None
cc:

DEPT OF JUSTICE WASHOC
DOD WA5HDC
NSC WASHDC
EUROPEAN POLITICAL COLLECTIVE

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INFO

CIAE-DO
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------------------92D4E9 151759z /69
p 151713z FEB 06
FM USEU BRUSSELS
TO.SECSTATE WASHDe PRIORITY
INFO EUROPEAN POLITICAL COLLECTIVE PRIORITY
DEPT OF JUSTICE WASHDC PRIORITY
DOD WASHOC PRIORITY
NSC WASHOC PRIORITY
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CON F IDE N T I A L USEU BRUSSELS 000524
DOD FOR HAYNES
NSC FOR WIEGMANN
E.O. 12958: DECL: 02/10/2016
TAGS: PGOV, PTER, PHUM, EUN
SUBJECT: SECSTATE LEGAL ADVISER ON WAR ON TERROR

End Cable Text
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UNCLASSIFIED
L0167

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RELEASEDINPART ~

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Strasbourg, 17, March 2006
.

i.
....

CDL-AD(2006)009
Or. Engl.

Opinion no. 363/2005

,

EUROPEANCO~S~ONFORDEMOCRACYTHROUGHLAW

(VENICE COMMISSION)

OPINION
ON THE INTERNATIONAL LEGAL OBLIGAnONS
OF COUNCIL OF EUROPE ~MBEJiSTATES
IN RESPECT OF SECRET DETENTION FACILITIES
AND INTER-STATE TRANSPORT OF PRISONERS

adopted by the Venice Commission
at its 66th Plenary Session
(Venice, 17-18 March 2006)
on the basis of comments by
Mr lain CAMERON (Substitute Member, Sweden)
Mr Pieter van DIJK (Member, the Netherlands)
Mr Olivier DUTHEILLET de LAMOTHE (Member, France)
,Mr Jan HELGESEN (Member, Norway)
,Mr Giorgio MALINVERNI (Member, Switzerland)
Mr Georg NOLTE (Subst,itute Member, Germany)
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

TABLE OF CONTENTS

PAGES MISSING
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.International co-operation in the .fig.b.1j!gainst terrorism

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COl-iCLUSION$.
INTRODUCTION
1.. By a letter of 15 December 2005, Mr Dick Marty, chairperson o[ the Committee on Legal Affairs
and Human Rights ofthe Parliamentary Assembly of the Council ofEurope, requested an opinion of
the Commission in respect ofthe following inter-related matters:
a)

An assessment of the legality of secret detention centres in {/'Ie light of the Council of
Europe member States' international law obligations, in particular the European
Convention on Human Rights (ECHR) and the European' Convention for the Prevention of
Torture, In particular, to what extent is a State responsible if - actively o'y passively - it

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permits illegal detention or abduction by a third State or an agent thereof?
b)

What ore the legal obligations of Council of Europe member States} under human rights
and general international law, regarding the transport ofdetainees by other States through
their territory, including the airspace ? What is the relationship between such obligations
and possible countervailing obligations which lierive from other treaties, including treaties
concluded with non-member States?

2. A working group was set up, which was composed ofthe following members: Mr lain Cameron} Mr
Pieter van Dille, Mr Olivier Vutheillet de Lamothe, Mr, Jan Helgesen, Mr Giorgio Malinverni and Mr
. Georg Nolte. It was assisted by. Ms Simona Granata-Menghini, Head of the Constitutional Cooperation Division.
.
3. Two working meetings were held in Pari~, on 13 January and on 27 and 28 February 2006.
4. The Working Group sought the assistance ofthe NATO Legal Services and requested clarifications
·in relation to certain matters of .military law as well as certain documents. Regrettably, the
Commission was not prOVided with either ofthem.
5. The Working Group availed itself of the valuable assistance of the International Civil. Aviation
Organisation (leAO), 'whose Legal Bureau provided documentation about the interpretation ofcertain
provisions of the Chicago Convention on International Civil Aviation. The Commission wishes to
express its appreciation and gratitudelor the co-operation olthe ICAo.
6. The present study wqs discussed within. the Sub-C.ommissions on International 'Law and on

i Democratic Institutions in the course of a joint meeting on J6 March 2006, and was subsequently
adopted by the Commission at its 6dhPlenary Session (Venice, 17-18 March 2006).·
7. The present opinion does not aim, nor does it have the ambition to assess the facts in relation to the
current allegations about the existence ofsecret detentionfaemties in Europe or about the transport of
detainees by the CIA through the territory (including the airspace) ofcertain European States. This is
not the task of./he Venice Commission. It is instead the object ofthe report that is in the process of
being prepared by the PACE Legal Affairs Committee.
8. This opinion does not aim at identifYing the pertinent internal law and practice ofthe Council of
Europe member-States either. On 21 November 2005, the Secretary General ofthe Council ofEurope
decided to use his power of inquiry under Article 52 of the ECHR and invited the Council of Europe
member States
furnish an explanation of the manner in which their internal law ensures the
effictive implementation ofthe ECHR in relation to secret detention and transport ofdetainee.s. On 28
February 2006, the 'Secretary General presented his report based on the replies submitted by all
member States (See the Secretary General's report under Article 52 ECHR on ihe question of secret
detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of
foreign agencies, SGllnf (2006)5).
"

to

9. The aim ofthis opinion is to provide a reply to the questions put by PACE Legal Affairs Committee,
and thus to identifY the obligations ofCouncil ofEurope member States under public international law
in general and under human rights law in particular, in respect ofthe irregular transport} extradition,
deportation or detention ofprisoners, In order to be able to do so, the Commission deems that it is
, necessary to outline at the outset the basic rules under international law, human rights law,
humanitarian law and air law (Section I) in respect ofdetention and inter-State transport ofprisoners.
The Commission will subsequently proceed with the identification ofthe specific obligations ofCouncil

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ofEurope member States in,these areas (Section 11), and will then answer the questions put by PACE
,(Conclusions).
'

./,-.

SECTION I: THE LEGAL REGIME

A.

General principles

a. 'Regular inter-State transfers of prisoners
10. Under international law and human ri,ghts law, there are four situations in Which a State may
lawfulIy transfer a prisoner to another State: deportation, extradition, transit and transfer of sentenced
, persons for the purposes of serving their sentence in another countJy.,
'

1'1. Deportation is the expulsion from a country of an alien whose presence is unwanted or deemed
prejudicial. A person against whom a deportation decision has been taken by an administrative

,

,Ii]

12]

authority must have the possibility of applying to a competent authority ,preferably a court
Deportation is only possible on'the specific grounds indicated by the pertinent national law.

12. Extradition is ,a fonnal procedure whereby an individual who is suspected to have committed a
criminal offence and is held by one State is transferred to another State for'trial or. if the suspect has
already been tried and found guilty, to serve his or her sentence.
'
13. Extradition is a process to which both international and national law apply. While extradition
) treaties may provide for' the transfer ~f criminal suspects or sentenced perSons between States.
domestic Jaw determines under what conditions, and according to which procedure the person
concerned is to be surrendered. in accordance with such treaties. Extradition legislation varies
significantly among the different European countries, notably as concerns the incorporation of treaties
into national Jaw. procedural guarantees, especially the respective role of the executive and the
judiciary in the extradition process, and the proof(and assurances) required fQr extradition.
I

,

.

.

14. In Council of Europe member States. extradition laws must take into consideration, or be
interpreted in conformity with constitutional provisions guaranteeing human rights and international
human rights treaties and humanitarian law.

[J]
15. The 1957 European Convention on Extradition requires, like most bilateral extradition treaties
nowadays, respect for the principles of ne his in'idem and speciality. It also forbids extradition to a
countJy where the death penalty would be carried out. The same is true if the extraditing State has
"substantial grounds for believing that a request for extradition for an ordinary, criminal offenc'e has
, been made for the, purpose of prosecuting or punishing a person on account of his race, religion,
nationality or political opinion, or that that person's position may be prejudiced for any of these

. '

[4J .

reasons». In addition. the nulla poena principle has to be respected.
[5]
was adopted with a view to
16. The 1977 European Convention on the Suppression of Terrorism
eliminating or restricting the possibility for the requested State of invoking the political nature of an
offence in order to oppose an extradition request in respect of terrorist acts. Under this Convention, for
extradition purposes, certain specified offences shaH never be regarded as "political" (Article 1) and

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other specified offences may not be regarded as such (Article 2), notwithstanding their political content
or motivation. There is no obligation, and even a prohibition to extradite, however, if .the requested
State has substantial grounds for believing that the request for extradition has been made for the
i purpose of prosecuting or punishing a person on account of his race, religion, nationality or political
opinion or that the position of the person whose ext:radition is requested may be prejudiced for any of
these reasons.
17. Transit is an act whereby State B provides faci1iti~s for State A to send a prisoner through its
territory.

18. Transit is regulated by bilateral and multilateral treaties, inter alia Article 21 of the EUropean
Convention on Extradition, which provides:
.
. 1. Transit through the ten'itory ofone ofthe Contracting Parties shall be granted on submission
of a request by the means mentioned in Article 12, paragraph J, provided that the offince
concerned is not considered by the Party requested to grant transit as an offince ofa political or
purely military character having regard to Articles 3 and 4 ofthis Convention.

,

.I

i

2. Transit ofa national, within the meaning ofArticle 6, ofa country requested to grant transit
may be refused
.
.
3. Subject to the provisions ofparagraph 4 ofthis article, it shall be necessary to produce the
documents mentioned in Article 11, paragraph 2.

is

4. If air transport used, the following provisions shall apply:
a
when it is not intended to land, the requesting Party shall notify the Party .over whose
territory the flight is to be made and shall certify that one of the documents mentioned in
Article 12, paragraph 2.a exists. In the case ofan unscheduled landing, such notification shall
have the effict of a request for provisional arrest as prOVided for in Article 16, and the
requesting Party shall submit aformal requestfor transit;
b
when it is intended to land, the requesting Party shall submit a formal request for
transit.
5. A Party may. however, at the time ofsignature or ofthe deposit ofits instrument ofratification
of, or accession to, this Convention. declare that it will only gr.ant transit ofa person on some or
all ofthe conditions on which it grants extradition. In that event, reciprocity.may be applied
6. The transit ofthe extradited person shall not be can'ied out through any territory where there
is reason to believe that his life or his freedom may be threatened by reason ofhis race, religion,
nationality or political opinion.

19. Although the wording of Article 21 § 4 a) indicates that States need to "notify" a transit flight,
State practice on this matter may vary> and indeed some States do not appear to require notification of
[(>1

'

transit of a prisoner by air o'ver their territory, when no landing is planned
20. European Council Directive no. 2003/110/EC of 25 November 2003 on assistance in cases of

.

[7]

transit for the purposes of removal by air ,underlines that "member States are to implement this
Directive with due respect for human rights and P1ndamental freedoms" and that "in accordance with
the applicable international obligations, transit by air should be neither requested nor granted if in the

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third country of destination or of transit the third-country national faces the threat of inhumane or
humiliating treatmel'l;t, torture or the death penalty, or ifhis life or liberty would be at risk by reason of
hislher race, religion, nationality, membership of a particular social group or political .conviction".
Pursuant to Article 4 of the Directive,

"1. The request for escorted or unescorted transit by air and the associated assistance measures
under Article 5(1) shall be made in writing by the requesting Mem~er State. It shall reach the
early as possible. ,and in any case no later than two days before the
requested Member ,State
transit. This time limit may be waived in particularly urgent and duly justified cases. .

as

2. The requested Member State shall inform the requesting Member State forthwith ofits decision
within two days. This time limit may be extended in duly justified cases by a maximum of 48
hours. Transit by air shall not be started without the approval ofthe requested Member
State. '
.
.
Where no reply is provi~d by the requested Member State within the deadline referred to in the
first subparagraph the transit operations may be started by means of a notification by the
requesting Member State.
Member States may prOVide on the basis ofbilateral or multilateral agreements or arrangements
that the 'transit operations may be started by mea~ ofa notification by the requesting Member
State. "

21. Under this Directive, with respect to any request for transit, the requesting member State muSt
provide the requested member State with information about the third-country national to whom the
transit request relates) "flight details and further information about the state of health of the person and
possible public order concerns.
22. The text of an Agreement on Extradition between the European Union and the USA was finalised
in 2003; however, this agreement has, so far, not entered into force in respect of any EU member-State

un

'

. It provides that a EU member State may authorise transportation through its territory of a person
surrendered to the US by a third State, or by the US to a third State. A request for transit shall be made
through the diplomatic channel and shall contain a description of the person being transported and a
brief description of the facts of the case. Authorization is not required when air transportation is used
and no landing is scheduled on the territory of the transit State (which does not change the obligations
of member States of the Council of Europe under human rights treaties, see below, para. 147) ; if an
unscheduled landing occurs, the State on whose territory the landing takes place may require a request
for transit.

23. States may enter into agreements concerning the transfer ofsentenced persons for the purpos~ of
s~rving their sentence in their country of origin. Such procedures are not relevant for this opinion.

[9]
b. Irregular inter-State trans(li<.TS ofprisoners
24. A-transfer is unlawful or irregular when the government of State B transfers a person from State B
to the custody of State A, against his or her consent, in a procedure not set out in law (i.e. not
extradition, deportation) transit or transfer with a view to sentence-serving).
25. The kidnapping of a person by agents of State A on the territory of State B and his or her removal
to State A or to a third State is a violation of State B' s territorial sovereignty and therefore an

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.
internationally, wrongful act which engages the international responsibility of State A

Page 7 of37

[~

26. Under general international law '(see para. 37 below), in such a case State A has to make "full
reparation for the injury caused by the internationally wrongful act" at the request of the injured State,
which, in this case, would include the return of the person in question. The rights of the person in
question vis-ii-vis State A depend upon the latter's law, on the applicable human rights obligations.
27. Irregular transfers may take place with the acquiescence ofthe territorial government. This type of
situation raises a human rights issue. For a Rechtsstaat, it will also,raise the issues of governmental
responsibility for acts of its organs and services and of parliamentary control over government.

'28. Another form of irregular transfer happens where some section of the public authorities in State B
(police, security forces etc.) transfers a person from S~te B but not in accordance with a procedure set
out in law, or even contrary to domestic law. This, in tum, may take the form of,official participation
in the.transfer (arresting and handing over), or facilitating a kidnapping (actively, or passively - not
preventing a kidnapping which it was known would occur). The secw:ity/police action may,occur With
or without government knowledge.
29. lfthere is no legal basis for an active measure (arrest, handing over etc) under national 'Jaw, then'
there will be in such cases a breach of national law on arrest, and consequently also a breach of Article
5 of the European Convention on Human Rights. This situation also raises the issue of governmental
control over the security/police services, and parliamentary control over the government (see below, §§
38-43).

, 3'0, As regards the terminology used to refer to irregular transfer aJ:ld detention of prisoners, the
,I Venice Commission notes ~at the public debate frequently uses th~ term "rendition", This is not a

tenn used in international law. The term refers to one State ob~ining custody over a person suspected
of involvement in serious crime (e.g. terrorism) in the territory of another State and/or the transfer of
such a person to custody in the first State's territory, or a place subject to its jurisdiction, or to a third
State. "Rendition" is thus a general term referring more to the result - obtaining of custody over a
,-----,
spected person - rather than the' means. Whether a particular "rendition" is lawful will depend upon
e laws of the States concerned and' on the applicable rules of mternabon81 law, in particular human
•&1115 law. Thus, even il a particular "rendItion" IS m accorCfiUlce WltTi the national law of one oFthe
tates involved (which may not forbid or even regulate extraterritorial activities of state organs), it
ay still be unlawful under the national law of the other State(s). Moreover, a "rendition" may be
ontrary to customary international law and treaty or c,ustomary obligations undertaken by the
'------~participatingState(s) under human rights law and/or international humanitarian law.

B5

31. The term "extraordinary rendition" appears to be used when there is little or no doubt that the
obtaining of custody over a person is nofin accordance with the existing legal procedures applying in
the State where the person was situated at the time.
c.

International

co~operation

in the, fight against terrorism

32.' General international law allows States to cooperate in the transport of detainees, provided that
such transport is carried out in full respect of human rights and other in~ernationallegal obligations of

the States concerned. Numerous international treaties confinn this rule.
33. As movement around the world becomes easier and crime takes on a larger international

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dimension, it is increasingly in the interest of all nations that terrorist crimes be prevented and that
persons who are suspected of having committed a very serious crime and are suspected to have acted
from abroad or who have fled abroad should 'be brought to justice. Conversely. the establishment of
safe havens Ior persons who are preparing terrorist crimes or who are suspected ofhaving committed a
serious crime would not only result in danger for the State harbouring ¢e protected person but also

.

Hi]

tend to undennine the foundations of extradition

34. The European

Co~vention on

Human Rights does not, in principle,

preve~t cooperation

between
States, within the franiework of extradition treaties or in matters of deportation, for the purpose of
bringing suspects of serious crimes to justice. proVided that it does .not interfere with any of the rights

,

[12.]

or :fr~oms recognised in the ECHR

35. The Council of Europe has produced severa) international instiuments and recommendations
~elating to the fight against terrorism, including three international treaties dealing with suppression of
LUl
{l4l
[15.]
terrorism
, prevention of terrorism
and money laundering and terrorist fmancing
, and three
recommendations of the Committee of Ministers to member States relating to special investigation
techniques; protection of witnesses and collaborators of justice; and questions of identity documents

.

[l~]

,

. which arise in connection with terrorism
36. An additional set of standards aimed specifically at safeguarding hwnan rights and fundamental
freedoms has been produced after 2001, namely the Guidelines on Human Rights and the Fight
. Against Terrorism (2002), a Policy Recommendation on Combating Racism While Fighting Terrorism
J (2004), the additional Guidelines on the Protection of Victims of. Terrorist Acts (2005) and a
Declaration on Freedom of expression and information in the media in the context of the fight against
terrorism (2005).
d. Some observations on State responsibility

-

37. When a State commits, through its agents acting in their official capacity, an internationally
wrongful act, it incurs responsibility and "is under an obligation to make full reparation for the injury
caused by the internationally wrongful ,act" at the request of the irUured State (see Article 31 para. 1 of
the International Law Commission (ILC)'s Articles on State Responsibility).

38. With respect to the imputability of an international wrong, the questio~ arIses of whether and to
what extent a State incurs responsibility when its agents have ultra vires consented expressly or
impliedly by rendering assistance, to acts of a foreign State infringing its territorial sovereignty (see
above, paras, 27 and 29).
39. uzird vires acts usually bind the State for the purposes of State responsibility (Article 7, ILC
Articles on State Responsibility).
.
40. Consent to carry out activities which otherwise would be intemationalJy wrongful renders them
lawful, unless these activities are contrary to jus cogens (see para. 42 below). However, consent to an
interference with sovereignty must be validly given (Article 20, ILC Articles on State Responsibility).
In this context, Article 46 of the Vienna Convention of the Law of Treaties is pertinent. It provides
that:
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J. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to concl~de treaties as
inyalidating its consent unless that violation was manifest and concerned a rule ofits internal
law offundamental importance.

. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in goodfaith
41. In the opinion of the Commission, if a public authority of a State would give a permission to the
representative of another State to arrest and/or transfer a person against l;ris will from the territory of
that State and it is clear that this would be outside of the ordinary Gudicial, administrative) p~ocedures
for such arrest/transfer, such peimission would be a manifest violation of a .rule of internal law of
fundamental importance in any State under the rule of law..Such pennission could therefore not be.
invoked by the other State as valid consent.

I

I

B5

42. Even where such permission does not result in the conclusion of or accession to a treaty, the Law

n.'Zl

of Treaties insofar reflects .the general principle of good faith.

.

This principle is '~one of the most

I1S}

.

basic principles governing the creation and performance of legal obligationstt
. The giving of a per~
mission is comparable to the conclUSion of a treaty insofar as .the Validity of consent is concerned. In
any case, the validity of any consent as a circumstance precluding wrongfulness in international law is
limited by the rule enunciated in Article 26 'of the ILC Articles on State Responsibility:
"Nothing in this Chapter precludes the wrongfulness of any act of a State which is not in
conformity with an obligation arising under a perempt'?ry norm ofgeneral ~nternationallaw."
43. A norin is of peremptory character (jus cogens) when it "is accepted and recognized by the
international community of States as a whole as a nonn from which no derogation is
permitted" (Article 53 of the Vienna Convention of the Law of Treaties). These norms include, inter
alia, the prohibitions of genocide, aggression t crimes against humanityt slavery, piracy and torture.
[19.]
44. In order to be considered wrongful, an act must be inconsistent with an international obligation of
the State which commits it· For Council of Europe member States, in the present context, the
obligation in question stems directly from the European Convention on Human Rig\lts, namely from
the obligation not to expose anyone to the risk of treatment contrary to Article 3, the obligation to
prevent any detention in breach of Article 5 and the obligation to investigate into any substantiated
claim that an individual has been taken into unacknowledged custody. These obligations 'may be.
breached by a State also by merely but knowingly letting its territory be used by a third State in order
to commit a breach of international law.
45. For a State knowingly to provide transit facilities to another State may amount to providing
assistance to the latter in committing a wrongful act, if the fonner State is aware of the wrongful
character of the act concerned. Under general international law (see Article 16 ILC Articles on State
Responsibility) "a State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with
knowledge of the circumstances of the internationally wrongful act; and (b) the act would be
internationally wrongful if committed by that State,"

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'46. The consequences of irregular transfers and secret detentions from the viewpoint of human rights
law for Council of Europe member States will be examined below (see paras. 137-153). '

Human rights Jaw

'B.

a.

The rights at issue

47. Council ofEurope member States are committed to respecting fundamental rights, as defmed by a
number of international treaties. both 'at the universal level (including the 1966 International Covenant
on Civil and Political Rights ("ICCPR"), and the 1987 UN Convention against Torture and Oth~r
Cruel, Inhuman or Degrading Treatment or Punishment; and at the European'level, in primis the
European Convention on Human Rights, but also the European Convention for the' Prevention of
Torture and Inhuman or Degrading Treatment or Punishment).
'

48. With respect to the matters which form the object of the present opinion, the fundamental rights
which ar~ at issue are primarily the right to liberty and security of person and the ban, on torture and
,
, other inhuman'or degrading treatments or punishments.
i)

Liberty and security of person

49. Article 5 ECHR protects the right to liberty and security of person. Although this right is not

J absolute (see the authorized deprivations of liberty under paragraph 1 a) to 1) of Article 5), a person
, may only be detained on the ba is of and accordin to rocedures set out by the law, an~ the 1a'W'in

ques
us e consistent with recognised European standards, that is inter alia with the (other)
provisions of the ECHR. In addition, paragraph 4 of Article 5 provides for all forms of deprivation of
liberty allowed under that article, ~at the detainee "shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention
is not lawfW" (habeas corpus).

50. Detention must be lawful and in accordance with a procedure prescribed by law: in the European
Court of Human Rights' view, the requirement of lawfulness means that both domestic law and the
ECHR must be respected. The possible reasons for detention are exhaustive! enumerated in Article 5
(1) ECHR. Paragraph I (c ) of Artie e permi
e aWfu arrest or etention of a person effected for
the purpose of having committed an offence or when it is reasonably considered necessary to prevent
his ,committing an offence or fleeing after having done so", while paragraph (1) of Article 5 permits
''the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation or extradition." A
detention for any reason other than those listed in Article 5 § 1 is unlawful and thus a violation of a
human right.

. 51. As regards extradition arrangements between States, when one is a party to the ECHR and the
other is not, the roles established by an extradition treaty or, in the absence of any such treaty, the
cooperation between the States concerned are also relevant factors to be taken into account foi
determining whether the arrest was lawful. The fact that a person has been handed over as a result of
tcooperation between States does not in itself make the arrest unlawful or give rise to an issue under
l).rticle 5. However, for the member States of the Council of Europe the provisions of the extradition
treaty or the practice of cooperation cannot justify any deviation of their obligations under the ECHR;
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for those States the decisive factor is whether the extradition is according to domestic law and respects
the State's obligations under the ECRR.
'
in which extradition may
be granted, or the, procedure to be followed before extradition may be granted. Subject to its being the
result of cooperation between the States conc~rned and provided that the legal basis for the order for
the suspect's arrest is an arrest warrant issued by the authorities of the suspect's State of origin, even an

! 52. The ECHR contajns no provisions concerning the exact circumstances

•

l2.m
atypical eXtradition cannot'as such be regarded as being contrary to the ECHR
. This being said, it
has also to be stressed that several rights and freedoms protected by the EClIR, may be relevant in the
. case of extradition and will have to be respected, the most important being Articles.2 and 3, and in
some circumstances Articles 5 and 6.
53. Article 5·must be seen as requiring the authorities of the territoritll State to take effective measures
to safeguard against the risk of disappearance and to conduct a prompt effective investigation into a

.

[2.1].

substantiated claim that a person has been taken into custody and has'not been
seen since
.
/

ii)

I
I

Torture, inhuman and degrading treatment or punishment

54. Torture is prohibited by Article 3 ECHR, Article 7 ICCPR, the European Convention for the
Prevention' of Torture and Inhuman or Degrading Treatment or Punishment and the UN Convention
agailli!t Torture and other Cruel~ Inhuman or Degrading Treatment or Punishment. It is defined as "any
act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person .
for such purposes as obtaining from him or a third person infonnation or a confession, punishing him
for art. act he or a third person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any kind, when such pain
or' suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising only.

[221
from, inherent in or incidental to lawful sanctions."

55. The crucial distinction between "torture", "inhuman treatment" and "degrading treatment" lies in
the degree of suffering caused.
.
.

56. "Inhuman treatment" is .such treatment which causes severe suffering, mental or physical, which,
in the particular situation, is lUljustifiable. Unlike torture~ inhuman treatment does not need to be
~l
~
intended to cause suffering.
In its judgment in Ireland v. United Kingdom
• the European Court
o( Human Rights held that the so-called "five techniques" were inhuman treatment. This decision has
sometimes been misunderstood to mean that the same or similar techniques would not amount to
torture. However, in the Selmouni case the Court later clarified that, since the Convention is a "living
instrument which must be interpreted in the light of present-day conditions", acts which were classified

.

[25J

in the past as "inhuman and degrading treatment" could be classified as torture in future.
. The
Court stated that "the increasingly high standard being required in 'the area of the protection of human
rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing
[~6)

breaches of the fundamental values of democratic societies."

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57. ~~Degrading treatment" is treatment which grossly humiliates or debases a person before others or
drives him to act against his will or conscience. Although causing less suffering than torture or
~

~

\

) inhuman treatment, it must attain a minimum level

. It too does not need to be intended to cause

suffering.

58. The prohibition of torture and inhwnan or degrading, treatment or punishment enshrines one of th~
most fundamental values of democratic societies. As the European Q,urt of Human Rights has stated
on many occasions, even in the most difficult circumstances, such as $e fight against terrorism and
organised crime, the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or
punishment. Unlike most of the substantive clauses of the ECHR and of Protocols Nos. 1 and 4,
Article 3 makes no provision for limitations ,and no derogation from it is permissible under Article 15 §
2, not even in the event of a public emergency threatening the life of the nation.
59. Article 2, paragraph 2, of the UN Convention against Torture and Other Croel, Inhuman or
Degrading Treatment or Punismnent (..the UN Convention against Torture") expressly States that "No
exceptional circumstances whatsoever, whether a State of war or a threat of~, internal political
instability or any other public emergency, may be invoked ajustification of torture."

as

60. The European Convention for the 'Prevention of Torture and Inhuman and Degrading Treatment
("ECPT'') establishes the European Q,mmittee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment ("CPT") which, "by means of visits, examines the treatment of
persons deprived of their liberty with a view to strengthening, if necessary) the protection of such
persons from torture and from inhuman or degrading treatment or punishment." Pursuant to Article 2
of this Convention, CPT can visit any place on the territory of member States where a person is
deprived of their liberty (Le. including military bases, non-official detention centres such as the offices
,I of the intelligence service or a' particular police department - drugs) anti-terrorism - if CPT believes
that persons are being held/interviewed in these offices).

61.. Member States of the ECHR not only have the obligation not to torture but also the duty'to prevent

[21U
torture.

In addition they have an obligation of investigation. Under this obligation Member States

[29J

.

must assure an efficient, effective and impartial investigation.
As soon as the authorities receive
substantiated information giving rise to the suspicion that torture or inhuman or degrading treatment
has been committed, a duty to investigate arises whether and in which Circumstances torture has been
committed.
b. Scope oCthe duty of Council ofEurope member States to secure human rights

62. Under Article 1 of the ECHR, "The High Contracting Parties shall secure to everyone within their

UQJ
jurisdiction the rights and freedoms defined in Section I of this Convention"
. According to the
European Court of Human Rights, the notion of "jurisdiction" is primarily territorial. It does, however,
exceptionally extend to certain other cases) such as acts of public authority performed abroad by
diplomatic or consular representatives of the State, or by an occupying force; acts performed on board
vessels flying the State flag or on aircraft or spacecraft registered there.
63. There is a presumption that jurisdiction is exercised by the State throughout its territory. States
may also be held accountable for human rights violations occurring outside their territory in certain

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[~JJ

situations

64. Article 2 of the International Covenant on Civil and Political Rights provides that a State Party
undertakes to "respect and to ensure to all individuals within its territory and subject to its jurisdiction'
.the rights recognized in the present Cov~nant:'
65. The term "jurisdiction" under the International Covenant on Civil and Political Rights is
comparable to the same term under the European Convention on Human Rights. It is also not limited
to territorial jurisdiction. The Human Rights Committee has held, for example, that communications
by persons who were kidnapped by agents in a neighbouring states are admissible, reasoning that

. [3.,2]
States Parties are responsible for the actions of their agents on foreign territory
. The Human Rights
Comrriittee also clarified in its General Comment no. 31 that ~'a State Party must respect and ensure the
rights laid down in the Covenant to anyone within the power or effective control of that State Party,

,

fJJl .

even if not situated within the territory ofthe State Party."
66. The duty of State parties under Article 1 ECHR to "secure" to everyone within their jurisdiction
"the rights and freedoms ... of this Convention" is not limited to the duty of state organs not to violate
these rights themselves. This duty also includes positive obligations to protect individuals against
infringements of their rights by third parties, be they private individuals or organs of third States
operating within the jurisdiction of the State party concerned (see para. 146 below). The European
Court of Human Rights has, in particular, recognized positive obligations which flow from the
prohibition of torture and inhuman treatment, the right to life, and the right to freedom and security.
I Such positive obligations include duties to investigate, especially in the case of disappeared persons,
, and to provide for effective remedies.
.

c.

Limitations on the competence to transfer prisoners imposed by human rights
obligations

67. The international condemnation of torture has a clear impact on extradition and deportation.
Article 3 of the UN Convention against Torture prevents States Parties from "expelling, returning
("refouter") or extraditing a person to another State where there are substantial grounds for believing

.

[J4.l

that he would be in danger of being subjected to torture"

69. Under what circumstances a State may be deemed to have known about a "real risk of a violation"
is to be determined in each separate case, Indeed, the establishment of the responsibility of a State in

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resPec~ of an extradition or deportation inevitably involves an assessment of conditions in the
requesting or receiving' country against the standards· of Article 3 ECHR. Nonetheless, the
responsibility of the requesting or receiving country. whether under general international law. under
} the ECRR. or otherwise, is not 4ecisive for the liability of the extraditing State under the ECHR.. 'Such
liability may have been incurred by the latter member State by reason of its having taken action which
has as a direct consequence the exposure of an individual to ill-treatment prohibited by Article 3

[lll
ECHR

.

70. In the Agiza case, the'UN Committee against Torture found a violation of article 3, as Sweden. at
the time of the complainanfs removal to Egypt, knew or should have known that Egypt resorted to
consistent and, widespread use of torture against prisonersi and therefore that the complainant was at a
real risk of torture. In the opinion of the Committee. the procurement of diplomatic assurances. which.

{l8.l

moreover, had no effective mechanism for enforcement, did not suffice to protect against this ~sk
71. In the Mamatkulov case. the E 0
extradition/deportation can take away the

Court of Human Ri@ts acce ted that assurances leadin to
ns 0 torture, even when the follow-up procedures were

. - - - [:29J
not. extensive
. However; the assessment of diplomatic assurances in this case should not be
o ~ . The Court merely took "formal cognizance of the diplomatic notes from the Uzbek
[~tQJ

.

authorities that have been produced by the Turkish Government"
Moreover, .there was no
substantiated evidence in the individual case that the people in question had in fact been tortured.
Finally, according to the European Court of Human Rights, the existence of the risk must be assessed
''primarily with reference to those facts which were known or ought to have been known to the
)
[41]
Contracting State at the time of the expulsion."
d. Derogations

.

72. Under Article 15 ECHR, a Contracting State may derogate from certain of its obligations under
the ECHR "in time of war or other public emergency threatening the life of the nation. Among these
"derogable" obligations are also those laid down in Articles 5 and 6; but, under paragraph 2 of Article
15, not those laid down in Articles 2, except in respect of deaths resulting from lawful acts of war, or

HI!

from Articles 3, 4 (paragraph 1) and 7
. However. a State may apply Article 15 only if and to the
extent that a war or· other public emergency threatening the life of the nation presents itself in that very
same State, and the derogating measUres are "strictly required by the exigencies of the situation" and
"are not inconsistent with its other obligations under international law". When such a situation
pertains, it is imperative for the State in question to make a fonnal derogation under Article 15 ECHR
[1~J

. Moreover, in case of such derogation, the third paragraph of Article 15 requires that the State
concerned keep the Secretary'General of the Council of Europe fully infonned of the measures that it
has taken and the reasons therefore.

73. 'Article 4(1) of the International Covenant on Civil and Political Rights is expressed in terms very

[44]
similar to those of article 15(1)

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74. In its Resolution 1271, adopted on 24 January 2002, the Parliamentary Assemblyofthe CoUncil of
Europe resohred (para 9) that: "In their fight against terrorism, Council of Europe members should not
provide for
derogations to the European Convention on Human Rights". It also called on all
member States (para 12) to "refrain from uSing Article 15 to limit the rights and liberties guaranteed
WIder its Article 5."

any

75~ In its 2002 GuideliDes on human rights and the fight against terrorism, the Committee of ~sters
of the Council of Europe reiterated that member States "may never, and whatever the acts of the
person suspected of terrorist activities, or convicted of such activities, derogate from the right to life as
guaranteed by these international instruments, from the prohibition against torture or inhwnan or
degrading treatment or punishment, from the principle of legality of sentences and of measures, nor
l4~J

.

from the ban on the retrospective effect of criminal law."
76. In its General Comment no 2912001 on Article 4 of the International Covenant on Civil and
Political Rights, the UN Human Rights Committee observed (in para 3) that ."On a number of
occasions the Committee has expressed its concern over States parties that appear to have derogated
from rights protected by the Covenant, or whose domestic law appears to allow such derogation~ in
situations not covered by article 4."
77. In the era of "global terrorism" it has been put to debate whether fundamental human rights as
they are discussed in this opinion or the extent of possible derogations from them should be
reinterpreted. Recent decisions by several domestic courts in Europe and beyond, however, have
continned that the existing rights and standards are, in principle, appropriate for the current situation of
[46]
the fight against global terror.
It is also the Commission's opinion that no such reinterpretation is
necessary or' warranted.

c.

International Humanitarian law

78. At present, International Humanitarian Law has only limited relevance for the question of the law
applicable to extraordinary transfers of prisoners and secret detention on the territory or through the
airspace of member States of the Council of Europe. International Humanitarian Law applies during
"armed conflict" and it distinguishes between international and non-international armed conflicts.
"Armed conflict" in the sense of International Humanitarian Law. refers to protracted armed violence
[~Z]

between States or between governmental authorities and/or organised armed groups within a State.
"State practice indicates that banditIy, criminal activity, riots, sporadic outbreaks of violence and acts
[4J~]
.
of terrorism do not amount to an armed conflict."
This means, for example, that the organised
hostilities in Afghanistan before and after 2001 have been an "armed conflict" which was at first a
non-international armed conflict, and later became an international armed conflict after the involvement of. US troops. On the other hand, sporadic bombings and other violent acts which terrorist
networks perpetrate in different places around the globe and the ensuing counter-terrorism measures,
even if they are occasionally undertaken by military units, cannot be said to amount to an "armed
conflict" in the sense that they trigger the applicability of International Humanitarian Law.
79. The Venice Commission considers that counter-terrorist measures which are part of what has
sometimes been called "war on terror" are not part of an "armed conflict" in the sense 'of making the
regime' of International Humanitarian Law applicable to them. It considers that further reflection is

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necessary to consider whether any additional instrument may be needed in the future to meet or

,
,,-.::::..:-

'

antic~pate the novel threats to ,international peace and security.

[12]
'

80. International Humanitarian Law thus only applies to such transports of prisoners through the
territory and/or airspace of the member: States of the Council of Europe if such prisoners have been
arrested/captured in the context of an "armed conflict" as explained above~ This would be the case, for
example, if a prisoner was captured in an area of Afghanistan in which organized fighting takes place
at the time of the arrest. In this case his or her transfer or detention would be covered by International
Humanitarian Law irrespective of where he or she is transferred to or detained in EUrope. If, on the
other hand, persons are transported or detained who have been arrested in the territory of a State where
no anned conflict takes pJace, or in an area in which no armed ,conflict takes' place, International
Humanitarian Law does not apply. In such cases human rights law fully applies.
81. Even in those limited cases in which International Humanitarian Law applies (in the context of
extraordinary transport of prisoners) this body of law does not apply exclusive!'y. As a general,JJl1e,
~an rights law applies at all times; wnether in times of peace or concurrently in situations of armed
conflict, to a1l' persons subject to a State's authority and control ("jurisdiction"). However, once an
armed conflict has begun, human rights law is normally partly superseded by International
Humanitarian Law, which contains rules specifically regulating the behaviour of parties to an armed
conflict. For example, human rights law does not specifically take account of the regime of belligerent
occupation. This means that the rules of the Hague Regulations and the Fourth Geneva Convention of

IS_OJ
1949 largely serve as lex specialis. However, as the Commission has previously pointed out
,
human rights law's non~derogable rules and those rules which 'have not been derogated from in
'; accordance with the derogation mechanism provided for under the relevant,treaty instntment are also
applicable in situations ofarmed conflict.
'&2. Under the 1949 Geneva Conventions, persons who are arrested by a power in the course 'of an
international armed conflict are protected either as prisoners of war (hereinafter "POW") (Article 4
GCIII) or as other "protected persons" (all persons, in particular civilians, who are not nationals of the
detaining Power or are not protected by other Conventions, Article 4 GCIV). The plain wording of
Article 4 (I) and (4) GC IV makes it clear that there should be no category of persons that would
remain unprotected. As the Commission has pointed out before, even th'ose persons who do not fulfil
the nationality requirements of Article 4 GC IV are protected by customary international humanitarian
law, as it has been given expression in Article 75 of the First Additional Protocol of 1977 to the
Geneva Conventions.
'

'
D

3. Persons who are suspected to be members of an international terrorist network, such as Al-Qaeda;
d who have been arrested in connection with an armed conflict, 'will fall either into the category of
ther "protected persons" or into the category ofPOWs.

84. As far as the Fou(th Geneva'Convention, the First Additional Protocol and customary international
humanitarian law apply, all protected persons, including terrorist suspects, must be treated according to
the rules laid down in Articles 27-78 GCIV and the minimum requirements of Article 75 of the First

.
Additional Protocol. This has been confinned in recent years by national courts.

L~JJ

85. In'the case that suspected members of international terrorist networks qualifY as POWs, their
transfer would be regulated by the Third Geneva Convention (see in particular Articles 12 and 46~48).

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,General principles of civil aviatio~

} 86.' International air law has a codified framework: in the Convention on International Civil Aviati~n
(commonly referred to as the "Chicago Convention~'),signed in Chicago on 7 December 1944.

87. The Chicago Convention sets out in Article 1 the principle that every State has complete and
exclusive sovereignty over the airspace above its territory, that is to say above the land areas and
territorial waters adjacent thereto.
88. Article 4 of the Chicago Convention provides that: "Each contracting State agrees not to use civil

aviation for any purpose inconsistent with the aims ofthis Convention".

89. The Chicago Convention sets out the regime fQf civil aircraft and ~ivil aviation. According to
Article 3 (a). such regime does not apply 12 State aircr~.

.

90. Under the Convention, aircraft "used in military, customs and police services" are deemed to be
. .
(~2]
state aircraft (Article 3(b». This pr~sumption, however, is not irrebuttable
. Moreover, aircraft
engaged in other state activities such as coast guard and search and rescue could also be either state

.

[~.3]

aircraft or civil aircraft in the sense of the Convention.

.
91. It has generally been admitted

[~4J

that, in case of doubt, the status of an airplane as "civil aircraft..

,

r

~

.

.\

or "state aircraft" wiJl be determined by the function it actually perfonns at a· given time
. As Ii
general rote, "aircraft dIe recognised as }tiite aIrcraft wnen
are. iiijder· the coi'iiiOl Cif the State and

they

.[~§.]

used exclusively by the State for state intended purposes". . Accordingly, the same airplane can be
corisidered to be "civil aircraft" and "state aircraft.. on different occasions.
92. Civil aircraft that are not engaged in scheduled international air services of a State party to the
~TI

.

Chicago Convention
are entitled to make flights into or in transit non-stop across the territory of
another State party and to make stops for pon-traffic purposes without the necessity of obtaining prior
nnission and subject to the right of the State flown over to require landing. The authQrities of ~il£.h
, State'p"!!Y have the right. without unreasonable delay, to search aircraft of the other ~te party on
, landIng or departure, and to inspect the certificates and other documents prescribed by the Chicago
Convention (Article 16).

~

93. State aircraft do not enjoy the overflight rights of civil aircraft. According to Article 3 (c), 'state

aircraft are not permitted to fly over or land in foreign sovereign terri~ory otherwise than with express
authorisation of the State concerned, and in harmony with the tenns of such authorisation. Such
authorisation must be given by special agreement "or otherwise"; the practice of States indicates that
the preferred form is "a bilateral or multilateral agreement between the States concerned, valid for. a
given period of time, one year for example, or general permissions, or "ad hoc" permissions properly
'obtained through the diplomatic channels. In the latter case, the diplomatic notes are to be submitted to
the competent authorities - to the Ministry of Foreign Affairs, for example - priono the operation of
the flight and usually contaln inter alia the name of the foreign air operator, the type of aircraft and its
registration and identification, the proposed flight routing (including last point of departure outside the
State, the fir~t point of entry, the'date and time of arrival, the place of embarkation or disembarkation

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abroad of passengers or freight), the purpose of the flight (number of passengers and their names).
,,~"

, 94.
J Pc;

If "state aircraft" enter the foreign sovereign air space Without a proper authorisation, they may

.

- intercepted for purposes ofidentification;
- directed to (eave the violated air space;
- directed to land for the purpose of further investigation/prosecution;

(5~J'

,

- forced 'to land for further investigation/prosecution

I

I'

B5

~,

95. Under customary international Jaw
, state aircraft enjoy immunity from foreign jurisdiction in
respect of search and inspection.. Accordingly. they cannot be boarded, searched or InSpected by'
foreign authorities. including host State's authorities. without the captain's consent. However. because
state aircraft need authorisation to enter another State's airspace. the extent of their inpnunity is
,
[@]
conditioned on such an au!horisation pursuant to Article 3' (c) ofthe Chicago Convention
96. A mere operational air traffic control clearance for the flight is not sufficient to satisfy the
[61]
requirement for permission under Article 3 (c)
, unless this corresponds to an accepted practice.
97. Article 3bis para. b) of the Chicago Convention provides that:
[E]very State, in the exercise of its sovereignty, is entitled to require the landing at some
designated airport ofa civil aircraft flying above its territory without authority or if there are
reasonable grounds to conclude that it is being usedfor any purpose inconsistent with the aims
ofthis Convention; it may also give such aircraft any other instructions to put an end to such
violations, For this purpose, the contracting States may resort to any appropriate means
consistent with relevant rules of international low, including the relevant prOVisions of this

"

, lW

Convention, specifically paragraph a) of this Article
. Each contracting State agrees to
publish its regulations inforce regarding the interception ofcivil aircraft.
98. The flag State of the violating aircraft is internationally responsible for the infraction; the
consequences of such responsibility would impact on the overall relations of the States concerned and
can range from the duty to apologise, a promise to penalise the individuals responsible, a promise not
to repeat the infraction and so on, to more severe sanctions.

...

99. Pursuant to Article 54 of the Chicago Convention, aJ?y action which may be considered as an
infraction, breach, violation or infringement of the Convention is potentially subject to action by the
Council of the International Civil Aviation Organisation (leAO) under Article 54 0) or (k). For
example, a contracting State which by its action contravenes the principle in Article I that every State
has complete and exclusive sovereignty over the airspace above its territory, can be considered
committing an infraction of the Convention. A similar conclusion could be drawn in respect of a State
which by its action disregards the scope of "territory" given in Article 2; or whose regulations for State
aircraft do not show "due regard for the safety of navigation of civil aircraft" (Article 3 (d)); or which
uses weapons against civil aircraft in flight contrary to Article 3 his; or which uses civil aviation for
~y purpose inconsistent with the aims of the Chicago Convention (Article 4). Infractions may be
brought before the Council by a Contracting State or a group of Contracting States.

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100. As Long as an airplane is in the air and not on the ground, persons on board are subject to the

[911
concurrent jurisdiction of both the national State of the airplane and the territorial State
'. In this
context, it should be noted that Article 4 of the Convention On Offences and Certain other Acts

,

[6.4]

Committed on Board Aircraft (the Tokyo Convention)
member States are Part)', provides that:

,to which practically all Council of Europe
'

"(1 Contracting State which is not the State ofregistration may not interftre with an aircraft in flight
in order to exercise its criminal jurisdiction over an offence committed on board except in the
following cases:
(a) the o,jfimce has effect on the territory ofsuch State;
(b) ihe offence has been committed by or against a national or permanent resident ofsuch ,State;
(c) the offence, is against the security ofsuch State;
.
(d) the offence consists ofa breach ofany rules or regulations relating to the flight or manoeuvre .of
aircraft inforce in such State;
,
(e) the exercise o/jurisdiction is necessary to ensure the observance ofany obligation ofsuch State
under a multilateral international agreement. "
101. This provision does not limit the jurisdiction of the territorial State but only the exercise of its
right to interfere with an aircraft in flight. In the ftrSt place, seri;ous offences of abduction, torture etc.
certainly have "effect" on the territorial state. Where the conditions of a prisoner on a plane do not m
themselves constitute lil1'ruman or degradIng treatment, aU acts involved in transferring by air a
prisoner to a place where he or she runs a real risk of being tortured may not necessarily be criminal
offences in the territorial State. This will depend upon how the relevant offences and inchoate offences
I (preparation, conspiracy etc.) are fonnulated in the law in the territorial State (e.g. whether the acts in
, question constitute a continuing offence of abduction) and that State's rules on extraterritorial crime, in
particular, whether the deliberate handing 'over of a person to extraterritorial torture is an offence. It
should be stressed however that the obligations of a Council of Europe member State to ensure
protection of human rights (see above, paras. 62-67, and below para. 146) are not limited simply to
enforcing its criminal law. Thus, it is not decisive that, in a particular case, a territorial State may not,
in fact, make all acts involved in transfer punishable, or exercise jurisdiction over these. In addition,
according to subparagraph (e) of Article 4 of the Tokyo Convention, the limitation of the exercise of
the right of the territorial State to iriterfere with an aircraft in flight does not apply when "the exercise
of jurisdiction is necessary to ensure the observance of any obligation of such State under a
multilateral international agreement", such as the European Convention of Human Rights. -Therefore, if
e positive obligations .arising under the ECHR require a member State of the Council of Europe to
investigate possible violations of human ,rights committed in an aircraft in flight through its airspace,
. this member State is not barred by the Tokyo Convention to interfere with this aircraft in flight.. ,

~

102. The question arises in this context of what would be the status of an airplane registered in the flag
State as civil aircraft but carrying out "State functions" (such as special missions for the transport of
prisoners) which entered the airspace of another State without seeking a specific authorisation or
without following the applicable procedures for State aircraft.

103. In the opinion of the Venice Commission, state aircraft can only claim immunity inasmuch as
they make their state function known to the, territorial State through the appropriate channels. If the
'public purpose was not declared in order to circumvent the requirement of obtaining the necessary

[6jJ'
pennission(s), then the State will be estopped from claiming State aircraft status
.and the airplane
will be deemed to be civil and thus falling within the scope of application of the Chicago Convention,
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including its Article 16 providing for the territorial State's right to search and inspection. The
territorial State could request the airplane to land and could proceed to search and inspection and take

,

.

[PJ)J

) the necessary measures to put an end to possible violations it might identifY
. In addition, the flag
State would face international responsibility for the breach of Article 4 ofthe Chi~ago Convention and
of customary international law.
104. The relations between air law and hwnan rights law will be analysed below (see paras 144-152).

E.

Military bases .

107. SOFAs between the host State and a State stationing military forces in the host State define the
legal status of the sending State's personnel and property in the territory of the host State. They are
usually an integral part of the overall military bases agreements that allow the sending State's military

[QSJ

.

forces to operate within the host State
108. Foreign armed forces whose admission has been consented to by the receiving State are, as a
rule, not~ to tbe Donnal immigration controls and entry formalities applicable to foreign
nationals. The NATO-SOFA agreement provides that "members of a force shall be exempted from
passport and visa' regulations and immigration inspection on entering or leaving the territory of a
receiving State. They shall also be exempt from the regulations of the receiving State on the

.

lQ9]

registration and control of aliens"
. This waiver of entry procedures is counter-balanced by the
'requirement for· members of the force, to present on demand, whether on entry or at any -time
thereafter, identification and an individual or collective movement order certifying the status of the

[7Ql
individual as a member of a force
. The receiving State has a discretion whether to require a
movement order to be countersigned by its authorised representatives. Exemption from entry
fonnalities is made conditional on compliance with the formalities established by the receiving State
relating to the entry and departure of a force or the members thereof.

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109. The sending State must have access to the base and, where it has more than one base on the
territory of the same State~ it must be allowed movement between them. To deny access woul<;t amount
to a derogation from the grant m8.de by the host State. It is therefore common for military base
agreements to authorise the sending State to have access to its forces and to the portS or airfields which
it has been accorded in the host State. This authorisation is essenti~ as in relation to public vessels
and' aircraft there is no right of access under customary int~rnational law. It is,' however, often the
practice in bilateral treaties for entry to the ports of the receiving State to be subject to "appropriate

TIU

notification under nqrmal conditions" made to the authorities of the latter .

, no.

The sending State does not benefit from an unrestricted freedom of movement within, and
overflight of, the receiving State, unless such rights are expressly granted in a base 'agreement. In any
case, the national and international law that is applicable to military bases cannot, and does not claim
to, diminish the obligations and responsibilities of the member States of the CoUncil of Europe under
human rights treaties.

, (n]

F.

Article V,ofthe NATO Treaty

an '

111. Article V is the core clause of the Washington Treaty, NATO's founding charter. It states that
armed attack against one Ally shall be considered, an attack against them, alL In response to an
invocation of Article 5, each Ally determines, in consultation with other Allies, how it can best'
contribute to any action deemed necessary to restore and maintain the security of the North Atlantic
area, including by the use of armed force.
.l 112. Article V was first invoked on 12 September 2001 immediately followi~g the 11 September
terrorist attacks against the United States., The invocation was initially provisional, pending
determination that the attacks were directed :from abroad. This was confmned on 2 October 2001, after
US officials presented findings on investigations into the attacks to the North· Atlantic Council,
concluding that the Al-Qaeda terrorist network was responsible.
113. On 4 October 2001, the Allies agreed on a series of measures to assist the US-led campaign

[73.]
against Al-Qaeda and related terrorism
. These include enhanced intelligence sharing and
cooperation, blanket over-flight clearances in accordance with the necessary air traffic arrangements
and national procedures, and access to ports and airfields for US and other Allied craft for operations
, against terrorism.
.
,

,

114. In application of this agreement, certain NATO member-States granted US (and NATO member
States') aircraft either blanket over-flight clearances for certain time-periods, or overflight rights upon

[7.4)
request
115. Article V of the North Atlantic Treaty does not contain an obligation for member States of the
Council of Europe to allow irregular transfers of prisoners or to grant blanket overflight rights, for the
purposes of fighting against terrorism. That treaty provision at most contains an obligation to take
measures, including cooperation and consent, into consideration; but leaves any decision as to concrete
measures to the appreciation of the State concerned of the necessity of such measures in order
restore and maintain security. In addition, neither Article 5 of the North Atlantic Treaty nor any
Agreements in execution thereof can, or claim to, diminish the obligations and responsibilities of

to

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member States of the Council of Europe under human rights tre~ties.

n - THE INTERNATIONAL LEGAL OBLIGATIONS OF COUNCIL OF
EUROPE MEMBER STA:TES

SECTION

A.

Council of Europe member States' obligations in respect of arrests by
foreign authorities on their territory

116. A State party to the European Convention on Human Rights is presumed to exercise its
jurisdiction over its whole territory. Any arrest of a person by foreign authorities on the territory of a
.CoUncil of Europe member State without the agreement of this member State is a violation of its
sovereignty and is therefore contrary to international law. In aqdition) the now defunct European
Commission of Human Rights has stated that "an arrest made by the authorities of one State on the
territory of another State) without the prior consent of the State concerned., does not only involve the
State responsibility vis-a-vis the other State, l1ut also affects that person's individual right to security
[1~]

under Article 5 § 1".
117. The European Court of Human Rights has clearly expressed how the responsibility of a CoUncil
of Europe member State is engaged in relation to the arrest of an individual on its territory by foreign
authorities: irrespective of whether the arrest amounts to a violation of the law of the State in which the
suspect has been arrested, th~ responsibility of the host State is engaged unless it can be proved that the
authorities of the State to which ffie applIcant lias been tral1Sferred have m:red e&tra-teI'l'itonally and
witliam consent, and consequently m· a manner that is mconslstent with the sovereignty of the fiost
[1Q]
State

118.· Any fonn of involvement of the Council of Europe niember State or receipt- of info~atjon prior
to the arrest taking place entails responsibility under Articles 1 and 5 ECHR (and possibly Article 3 in
respect of the modalities of the arrest). A State must thus prevent the arrest from taking place, unless
the arrest is effected .by the foreign authorities in the exercise of their jurisdiction under the terms of an
applicable SOFA (see footnote 68 above).

~esponsibility

~ngaged

~ome

QThe
of the Council of Europe member States is
also in the case that
of its public authorities (police, security forces etc.) has co-op~ted with the foreign
authorities or has not prevented an arrest without government knowledge. lbis situation raises the
question of governmental control over the security/police services, and possibly, if the applicable
national law so foresees, of parliamentary control over the government.

~on

120. Different European States exercise different systems for political insight into, and control over,
the operations of the security and intelligence services, depending upon constitutional structure,
historical factors etc. Different mechanisms exist for ensuring that particularly sensitive operations are
subject to approval and/or adequate control. Meaningful government accountability to the legislature is
obviously conditioned upon meaningful governmental control over the security and intelligence
~

.

services'· . Where the law provides for governmental control, but this control does not exist in
practice, the security and intelligence services risk becoming a "State within a State". Where, on the
, other hand, the law provides for a degree of distance between government ministers and officials and
the day-to.day operations of the security and intelligence services, but government ministers .in fact
exercise influence or even control over these operations, then the phenomenon of "deniability" can
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arise. In such a case, the exercise of power is concealed, and there is' no proper accountability. The
Statute of the ·Council of Europe and the -ECHR require respect for the rule of law which in turn
,r::-=-- " requires accountability for all exercises of public power. Independently of how -a State chooses to
.j regulate political control over security and intelligence agencies, in 'any case effective oversight and

,

[l8.]

control mechanisms must exist to avoid these two problems.
-

,

B.

Council of Europe member States' obligations in respect of alleged secret
detention facilities

\ 21. The tetm \~secrecy" can have different meanings. In the context of the present opinion, the
problematic aspect of the secrecy of detention lies in the first place in the impact which such secrecy

,

has on the prisoner's defence rights under Articles 5

[I~

and 6 ECHR. In addition, prolonged secret

[SOl
detention may impinge on Article 3

and on other aspects ofArticle 6 ECHR.

122. For a State to provide facilities to another State to conduct voluntary mterviews with suspects on
its territory is, in principle, not in violation of international law. On the contrary, it is a feature of most
modem Mutual Assistance Treaties. It depends upon the territorial States' constitutional and
administrative rules on the exercise of public power whether this can go so far as involuntary
interrogation. Some States will not allow any but their own officials to exercise public power on their
IJli]
territory. Others make exceptions by treaty rules
123. The territorial State retains its full jurisdiction within- the meaning of Article 1 ECHR over any
place on its territory where such interviews take place, including any ad, hoc detention facilities: : that
State is therefore responsible for any infringement of the ECHR in relation to any stispect treated in
violation of Articles 3 and 5, e.g. any prisoners who may be held incomunicaqo there. The modalities
of the interrogation and detention, and of treatment given, need to comply with the standards of the
European Convention on Human Rights.

124. lncomunicado detention, that is detention without the possibility of contacting one's lawyer and
of applying to a court, is clearly not "in accordance with a procedure prescribed by law" of any of the
member States of the Council of Europe, if alone because the detention is not subject to judicial
review. For the detainee, it is not possible to exercise his entitlement to' habeas corpus guaranteed by
Article 5, paragraph 4. The unlike possibility that such a detention is "in accordance with a procedure
prescribed by law" under the law of the foreign State by whose authorities the detention was ordered
and executed, is irrelevant for the issue of the responsibility under the European Convention on Human
RIghts of the State on whose territory it takes place.
125. If and in so far as incomunicado detention takes place, is made possible or is continued on the
territory of a member State of the Council of Europe, in view of its secret character that detention is by
definition in violation of the European Convention on Human Rights and the applicable domestic law
of that State.
126. Active and passive co-operation by a Council of Europe 'member State in imposing and executing
secret detentions engages its responsibility under the European Convention on Human Rights. The
European Court of Human Rights has ruJed that "the acquiescence or connivance of the authorities of a
Contracting State in the acts of private individuals which violate the Convention rights of other
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[~-~]

,

individuals within its jurisdiction may engage the State's responsibility under the Convention"
,~~~ .' This is even more true in respect of acts of agents of foreign States.
~.
)
127. While no such responsibility applies if the detention is carried out by foreign authorities without
the territorial State actually I.cnowing it, the territorial State must take effective measures to safeguard
against the risk of disappearance and must conduct a proinpt and effective investigation into a
s~bstantiated claim that a person has been taken into unacknowledged custody.

128. The possible obligation by a Cotplcil of Europe member State under bilateral oJ' multilateral
treaties to co-operate in prosecution measures does not affect or diminish this State's obligation not to
allow or contribute to secret detention,on its territory.
'l8-~.J
129. As the European Court of Human Rights has pointed out " the opinion of the State under
whose authority the detention is decided an~ ex,ecuted concerning, the issue of whether the detention is
in violation of fundamental rights is not conclusive for the question of whether cooperation engages
responsibility of a member State of the Council of Europe under the European Convention on Human
Rights; only the relevant provisions of the latter Convention, as interpreted by the European Court of
Hwnan Rights, are decisive. This means, for instance, that the 0 inion which has been ut forward in
certain quarters with respect to the US Government th
,. . applied
outside S- territo
does not v·
.
is of no relevance
for the ~
question of responsibility of member States under the European Convention on Human Rights. It also
means that the' iii<liViduai opitrimi of specific Governments, Ol ofcertainlJublic persons, about possible
limits to the absolute character of the scope of the prohibition of torture are not relevant either. In
addition to the interpretation given by the European Court of Human Rights concerning the absolute
character of the prohibition of,torture, Article 2, paragraph 2, of the UN Convention against Torture,
and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly states 'that there is no
room whatsoever and under any circumstances to justifY torture

r--JBs.

130. If a State is infonned or has rearonable grounds to suspect that any persons are held
incomunicado at foreign military bases on its territory, despite its limited jurisdiction over foreign
military bases, its responsibility under the European Convention on Human Rights is still engaged,
unless it takes all measures which are within its power in order for this irregular situation to end.

,

,

131. As rule, a State cannot search forei military bases on its territo unless this is allowed under
the relevant
ss t e ost State is au orised by the sending State to do so. owever, e
right to detain non-military personnel does not fall, under the ordinary 'rights and powers that are
connected directly with the establishment and operation of the sites at which th~ foreign forces and
installations are located (see para. 106 above), unless the site falls under the jurisdiction of the sending
State under the applicable SOFA, such as the NATO-SOFA (see footnote 68 above).

D

BS

tI

132. The host State is therefore entitled and even obliged to prevent, and react to such abuse of its
~ territory. It could exercise its powers in respect of registration, and control of aliens, and demand
identification and movement orders of those present on the military base in question. Access to such
military bases, assuming that it had been freely granted under the military base agreement, would
requite notification under normal conditions. In addition, appropriate diplomatic channels can 'be used
in order to protest against such practice.
133. The case might arise that some section of the public authorities of the Council of Europe member
State (police, security forces etc.) is informed and tolerates, or fails to prevent or even cowoperates in

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the .maintenance of secret" detentions without government knowledge. While this situation J:aises the
already mentioned constitutional issue of control over security forces, the State remains responsible
Wlder the European Convention on Human Rig~ts.
~
'.
.
.

. 134. States which have ratified the European Convention for the Prevention. of Torture have the
obligation to co-operate with the Committee for the Prevention of Torture and to provide it with a list
'ofall the detention centres which are present on their territory. CPT must have access to all and any. of
these detention centres. Failure by a State to inform CPT of any detention facility can be seen as a lack

[8-4]
of co-operation within th~ meaning of Article 3 ECPT

, which, if not clarified appropriately, can

result in procedures towards a public statement under Art 10(2)

U~SJ

135. As concerns international humanitarian law, the Geneva Conventions (Articles 126 ofOCllI and
143 GCIV) grant the International Committee of the Red Cross 4'permission to go' to all places wh~re
prisoners of war or protected persons may be, particular~y to places of internment, imprisonment and
labour", and "access to all premises occupied by" them, including '4fue places of departure7 passage
and arrival of prisoners who are being transferred". Resp~>nsibility could arise in this respect too.
136. Insofar as detention can be "secret" vis-a.-vis the national authorities, the Commission considers
that a State is exempted from responsibility only if and as long ~ it does not have any knowledge of a
detention cairied out by foreign agents in breach of its territorial sovereignty. However, if any branch
of the State is involved in or informed about the detention, irrespective of their acting ultra vires, the
responsibility of the State as a subject of international law is engaged (see paras. 38-43 above).

c.

Council of Eorope member States' obligations in respect of inter-state
transfers of prisoners

137. There are only four legal ways of transferring a prisoner to foreign authorities: deportation, .
transit and transfers of sentenced persons for the purpose of their serving the sentence in
their C!->UlltrY of origin.
extraditio~

138. Extradition and deportation proceedings must be specified by' the applicable law, and the
prisoners must be given access to the competent authorities. In addition, extradition and deportation
proceedings cannot be carried out where substantial grounds have been shown .for believiilg that the
person in question, if expelled, would face a real risk of being subjected to treatment contrary to
Article 3 of the ECHR and of the UN Convention against Torture in the receiving cotmtry. In these
circumstances, Article 3 implies the obligation not to expel the person in question to such a COWltry.
139. In this context, it is worth underlining that Council of Europe member States are under an
obligation to prevent prisoners' exposure to the risk of torture: the violation does not depend on
whether the prisoner is eventually subjected to torture.
140. The assessment of the reality of the risk must be carried out very rigorously. The risk assessment
will depend upon the circumstances, meaning both the rights which risk being violated and the
situation in the receiving State. The diplomatic assurances which are usually provided by the
requesting State in order to exclude human rights breaches in its territory after the extradition or
r~~]

deportation is carried out may be appropriate as concerns risks of application of the death penalty
or for fair trial violations, because such risks can in most instances be monitored satisfactorily. On the
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of

other hand, as regards the risk of torture, monitoring is impracticable in the vast majority
conceivable cases, especially bearing in mind the fact that, even after conviction in a criminal case, a
State· may torture a prisoner for the purpose of obtaining· information. At the same time, it is
impracticable to have a "life-long" responsibility for people who are removed out ofthe country.

[8.1)
141. This situation .raises the allemon of the value of diplomatic assurjIDces . • In the Venice
Commission's view, the acceptance of such assurances is in principle the expression of the nec~sary
good faith and mutual trust betw~en friendly· States, although, as far as assurances may be regarded as
acceptable in principle (see para.. 142 below), the· terms of the diplomatic assurances need to be
unequivocal (for instance, a reference to ''torture'' or to "inhuman or degrading treatment" should be
interpreted within the meaning given to these term~ by the ECtHR the CAT and the HR Conunittee)
and need to reflect the scope ofthe obligation by which the State which issues them is legally bound.
142. However, this general mutual trust must not prevail over ~e accurate examination of each
specific situation, ·particularly if there are precedents or even patterns of violation of previously

[8.8.J.

.

accepted assurances
. For example, an important difference between the situation in the
Mamatkulov case (see para 71 above) and later ones is that recent experience has shown that the risk
of torture seems to be greater than what was known before, despite assurances. In the Commission's
view, under these circumstances the room for accepting guarantees against torture is reduced
significantly. Where there is substantial evidence that a country practices or permits torture in respect
of certain categories of prisoners, guarantees may not satisfactorily reduce this risk in cases ofrequests
for extradition ofprisoners belonging to those categories.
\ 143.. The requirement of not exposing any prisoner to the real risk of ill-treatment also applies in
, respect of the transit of prisoners through the territory of Council of Europe member States: member
States should therefore refuse to allow transit ofprisoners in circumstances where there is such a risk.
144. The situation may arise that a Council of Europe member State has serious reasons to believe that
the mission of an airplane crossing its airspace is to carry prisoners with the intention of transferring
them to countries where they would face ill-treatment.

[

145. If such an airplane does not require landing, as long as the plane is in the air, all persons on board
are subject to the jurisdiction ofbotll the flag State and the territorial State. In the Commission's view,
Council of Europe member States' responsibility under the European Conventipn on Human Rights is
engaged if they do not take the preventive measures which are within their powers. In additioD t their
responsibility for aiding another State to commit an unlawful act would be at issue. It follows, in the
Cominission's view, that the territorial State is entitled to, and must take all possible measures in order
to prevent the commission of human rights violations in its territory, inclUding in its air space.

BS

146. There are obviously practical difficulties involved in securing the effective enjoyment of
Convention rights in aircraft transiting a Council of Europe member State's airspace or military base
for foreign forces on its territory. Without prejudice to the wider question of how such difficulties can
affect the scope of a State's obligations to secure generally the rights under the Convention, the caselaw of the European Court of Human Rights makes it clear that the State's duty to secure the most
elementary rights at issue in ·the present case (right to security of person; freedom from torture and
l~2.1
\ right to life) continues to apply, regardless of acquiescence or .connivance
147.· The territorial State possesses a different course of action in respect of the suspect airplane.

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depending on its status.
...::

pare270f37

B5

_

, 148. If
i uestion has resented itself as if it were a civil lane, that is to say it has
IC e c 0
e
cago Convention, it is in breach
} not duly sought prior authorisation pursuant to
of the Chicago Cooy-cntion : the territorial State may therefore require landing. The airplane havrng
failed10declare its State functions, it will not be entitled to claim State aircraft status and subsequently
not be entitled to immunity : tI,e territorial State will therefore be entitled to search the plane pursuant
to Article 16 of the Chicago Convention and take all ne~essary measures tQ secure human rights. In
addition, it will ~ entitled to protest through appropriate diplomatic channels.
149. If the plane has presented itself as a State plane and has' obtained overflight permission without
however disclosing its mission, the !erritorial. State can contend that the flag State has violated' its
international obligations. The flag State could thus face international responSibility. The airplane
however will, in principle, be entitled to immunity according to general international law and to the
. applicable treaties: the. territorial State will therefore be un~ble to search the plane, unless the captain
consents.
150. However, the territorial State.may refilse fin:thcr overflight cleatatlces in favour of the flag State
or unpose, as a condition therefore, a duty to submit to searches. If the overflight permission derives
from a bilateral treaty or a SOFA or a iniJitary base agreement, the tenns of such treaty might be
questioned if and to the. extent that they do not allow for any control in order to ensure respect for
human rights, or their abuse might be advanced. In this respect, the Venice Commission recalls that the
legal framework concerning foreign military bases on the territory of Council of Europe member
States must enable the latter to exercise sufficient powers to fulfil their human rights obligations.

. 151. While mutual trust and economic and military co-operation amongst friendly States need to be
} encouraged, in granting foreign state aircraft authorisation for overflight, Council of Europe ·member
States must secure respect for their human rights obligations. This means that they may have to
consider whether it is necess
to i
new clauses, including the right to searc~ as a condition for
.-------,
diplomatic clearances In favour of State planes carrying prisoners.
ere are reason
believe that, in ce~in categories of cases, the human rights of certain passengers risk being violated,
States must indeed make. overflight permission co.!!ID.tinnal.....upon respect of express human rights
clauses. Compliance with the procedures for obtaining diplomatic clearance must be strictly
monitored; requests for overflight authorisation should provide sufficient information as to allow
'-----' effective monitoring (for example, the identity and status (voluntary or involuntary passenger) of all
persons on board and the destination of the flight as well as the final destination of each passenger).
Whenever necessary, the right to search civil planes must be exercised.

B5

152.. With a view to discouraging repetition of abuse, any v~olations of civil aviation principles in
relation to irregular transport of prisoners should be denounced, and brought to the attention of the
competent authorities and eventually of the public. Council of Europe member States could bring
possible breaches of the Chicago Convention before the Council of the International Civil Aviation
Organisation pursuant to Article 54 of the Chicago Convention.
153. As regards·the treaty obligations of Council of Europe member States, the Commission considers
that there is no international obligation for them to allow irregular transfers of prisoners to or to grant
unconditional overflight rights, for the purposes .of fighting terrorism. In the Commission's opinion,
therefore, States must int~rpret and perform their treaty obligations, including those deriving from the
NATO treaty and from military base agreements and SOFAs, where these are applicable, in a manner
compatible with their human rights obligations. As regards notably the NATO treaty, the Commission
stresses that this principle is expressed in Article 7 according to which "[t]his Treaty d?es not affect,

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~d shall not be interPreted as affecting in any way the rights and obligations under the Charter (of the
United Nations] of the Parties w:hich are members of the United Nations." Even if NATO member
.,~:.:...\ states have undertaken obligations concerning irregular transfer or unconditional overflight, the
~
) Corrunission recalls that if'the breach of a treaty obligation is detennined by the need to comply with a
peremptory norm (jus cogens), it does not give rise to an internationally wrongful act. As underlined
above (para. 43), the prohibition of torture is a peremptory n~rm.

CONCLUSIONS
154. Council of Europe member States are under an obligation to fight terrorism, but in doing so they
must safeguard human rights;
155. CoUncil of Europe member States are under an international legal obligation to secure that
everyone within their jurisdiction (see para. 146 above) enjoy internationally agreed fundamental
rights, including and notably that they are not unlawfully deprived of their personal freedom and are
not subjected to torture and inhuman and degrading treatment, including in breach of the prQhibition to
extradite or deport 'where there exists a risk of torture or ill-treatment. This obligation may also be
violated by acquiescence or connivance in the conduct of foreign agents. There exists in particular a'
positive duty to investigate into substantiated claims of breaches of fundamental rights by foreign
agents, particularly in case of allegations oftorture or unacknowledged detention.
156. Council of Europe member States are bound by numerous multilateral and bilateral treaties in
different fields, such as collective self-defence, international civil aviation and miJitary bases. The
obligations arisirig out of these treaties do not prevent States :flom complying with their human rights
) obligations. These treaties must be interpreted and applied in a manner consistent with the Parties'
, human rights obligations. lndeed, an implied condition of any agreement is that, in carrying it out, the
States will act in confonnity with international law, in particular human rights law.

157.. The Venice Commission considers that there is room to interpret and apply the different
applicable treaties in a manner that is compatible 'with the principle of respect for fundamental rights.
Council of Europe member States must do so. For example, the search of a state airplane which has
presented itself as a civil aircraft is allowed under the Chicago Convention "and must be effected
whenever there are reasonable grounds to suspect that the plane may be used to commit human rights
breaches., The relevant inter-state practice must be changed and adapted to this obligation, without
however frustrating the legitimate aims pursued by the treaties in question. Diplomatic measures may
also need to be taken.
'
158. To the extent that this due interpretation and application of the existing treaties in the light of
human rights obligations is not possible, Council of Europe member States must take all the necessary
measures to renegotiate and amend the treaty provisions to this effect.
159. In reply to the questions put by the ,Legal Affairs Committee of the Parliamentary Assembly of
the'Council ofEufope, the Venice Commission has reached the conclusions listed below:

As regards arrest and secret detention
a)

Any form of involvement of a Council of Europe member State or receipt of information prior
to an arrest within its jurisdiction by foreign agents entails accountability under Articles 1 and 5
or' the European Convention on Human Rights (and possibly Article 3 in respect of the
modalities of the arrest). A State must thus prevent the arrest from taking place. If the arrest is

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effected by foreign authorities in the exercise of their jurisdiction under the terms of an applicable
Status of Forces Agreement (SOFA), the Council of Europe member State concerned may
remain accountable under the European Convention ,on Human Rights, as it is obliged to give
priority to itsjus cogens obligations, such as they ensue from Article 3.
b)

Active and passive co-operation by a Council of Europe member State in imposing and
'executing secret detentions engages its responsibility under the European Convention on,
H~an Rights. While no such responsibility applies if the detention is carried out by foreign
authorities without the territorial State actually knowing it, the latter must take effective
measures to safeguard against the risk of disappearance and must conduct a prompt and
effective investigation into a substantiated claim that a person has, been taken into
unacknowledged custody.

c) The Cow,cil of Europe member State's responsibility is engaged also in the case where its
agents (POlice, security forces etc.) co-operate with the foreign authorities or do not prevent 'an
arrest' or unacknowledged detention without government knowledge, acting ultra vires. The
Statute of the Council of Europe and the European Convention on Human Rights require
respect for the rule of law, which in turn requires ~ountabi1ity for all form of exercise of
public power. Regardless of how a State chooses to regulate political control over security and
inteIJigenge agencies, in any event effective oversight and control mechanism~ must exist.'
d) If a State is informed or haS reasonable suspicions that any persons are held incomunicado at
foreign military bases on its territory, its' responsibility un~er the European Conv€mnQn on
Human Rights is engaged, unlesS it takes all measures which are within its power in order for
this irregular situation to end.
e)

Council of Europe member States which have ratified the European Convention for the
Prevention of. Torture must inform the European Committee for the Prevention of Torture of
any detention facility on their territory and must allow it to access such facilities. Insofar as
international humanitarian law may be applicable, States must grant the International
Committee or'the Red Cross'permission to visit these facilities.

As regards inter-state transfers ofprisoners

f)

There are only four legal ways for Council of Europe member States to transfer a prisoner to
foreign authorities: deportation, extradition, transit and transfer of sentenced persons for the
purpose of their serving the sentence in another country. Extradition and deportation
proceedings must be defined by the applicable law, and the prisoners must be provided
appropriate legal guarantees and ~ccess to competent authorities. The prohibition to extradite or
deport to a country where there exists a risk of torture or ill-treatment must be respected.

g) Diplomatic assurances must be legally binding on the issuing State and must be unequivocal in
tenus; when there is substantial evidence that a country practices or permits torture in respect
of certain categories of prisoners, Council of Europe member States must refuse the assurances
in cases of requests for extradition of prisoners belonging to those categories,
h) The prohibition to transfer to a country where there exists a risk of torture or ill-treatment also
transit of prisoners through the territory of Council of Europe member
applies in respect of
States: they must therefore refuse to allow transit of prisoners in circumstances where there is
such a risk.

the

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As regards overflight
/-<-='~:...\

i)

If a Council of Europe member State has serious reasons to believe that an airplane crossing
its airspace carries prisoners with the intention of transferring them to countries where they,
would, face ill-treatment in violation of Article 3 of the European Convention o~ Human
Rights, it must take all the necessary measures in order to prevent this from taking place.

j)

If the state airplane in question has presented itselfas a civil plane, that is to say it has not duly
sought prior authorisation pursuant to Article 3 c) 'of the Chicago Convention, the tenitorial
SU!,te must require landing and must search it. In addition, it must protest through app"ropnate
,...
diplomatic channels.

k) If the plane bas presented itself as a state plane and has obtained overflight penmssion without
however disclosing its miSsion, the territorial State cannot search it unless the captain consents.
However, the territorial State can refuse further overflight clearances in favour ofthe flag State
or impose, as a condition therefor, the duty to submit to searches; if the overflight permission
derives from a bilateral treaty or a S~atus of Forces Agreement or a military base agreement, the.
, terms of such a treaty should be questioned if and to the extent that they do not allow for' any
control in order to ensure respect for human rights.
1)

In granting foreign state aircraft authorisation for overflight, Council of Europe member States
must secure respect for their human rights obligations. This means that they may have to
consider whether it
necessary to insert new clauses, including the right to search, as a
condition for diplomatic clearances in favour of State planes canying prisoners. If there are
reasonable grounds to believe that, in certain categories of cases, the human rights of certain
passengers risk being violated, States must indeed make overflight pennission conditional upon
respect of express hwnan rights clauses. Compliance with the procedures for obtaining
diplomatic clearance must be strictly monitored; requests for overflight authorisation should
provide sufficient information as to allow effective monitoring (for example, the identity and
status (voluntary or involuntary passenger) of all persons on board and the destination of the
flight as well as the fmal destination of each passenger). Whenever necessary, the right to
search civil planes must be exercised.

is

m) With a view to discouraging repetition of abuse, any violations of civil aviation principles in
relation to irregular transport of prisoners should be denounced, and brought to the attention of
the competent authorities and eventuaHy of the public. Council of Europe member States could
bring. possible breaches of the Chicago Convention before the Council of the International Civil
Aviation Organisation pursuant to Article 54 of the Chicago Convention.
n)

As regards the treaty obligations of Council of Europe member States, the Commission
considers that there is no internationaL obligation for, them to allow irregular transfers of
prisoners or to grant unconditional overflight rights, for the purposes of combating terrorism.
The Commission recalls that if the breach of a treaty obligation is determined by the need to
comply with a peremptory nonn (jus cogens), it does not give rise to an internationally
wrongful act, and the prohibition of torture is a peremptory norm. In the Commission's
opinion, therefore, States must interpret and perform their treaty obligations, including those
deriving from the NATO treaty and from military base agreements and Status of Forces
Agreements, in a manner compatible with their human rights obligations.

160. The Venice Commission hopes that this opinion will assist the Committee on Legal Affairs and
Hwnan Rights of the Parliamentary Assembly of the Council of Europe in the completion of the
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inquiry into these matters. The Commission also hopes that this opinion will assist the Secretary
General of the Council of Europe in his ongoing inquiry under Article 52 of the Eqropean Convention
on Human Rights. The Commission is ready to pursue its reflection on these matters, if so requested.
}

m

Article 1, Protocol 7 to the ECHR (Procedural safeguards relating to expulsion ofaliens) provides~

"1. An alien lawfully resident in the territory of a.State shall not be expelled therefrom except in pursuance of a decision
reached in accordance with law and shall be allowed: a to submit reasons against his expulsion, b to have hiS case reviewed,
. and c. to be represented for, these purposes before the competent authority or a person or persons designated by that
authority.
2. An alien may be 'expelled before the exercise of his rights under paragraph l.a. b and c of this Article, when such
expulsion is necessary in the interests of public order or is'grounded on reasons of national security." Similarly, Article J3
ofthe Intemation.al Covenant on Civil and Political Rights provides:
"An alien lawfully in'the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of
a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise
require. be allowed to submit the reasons against his exp~lsion and to have his case reviewed by, and be represented for the
purpose before. the competent authority or a person.or persons especially designated by the competent authority."

L4]

European Court of Human Rights, Klass and others v. Federal Republic of Germany judgment of 24 October'

1979, § 55.

m

ETS 'no. 24. The European Council Framework Decision 2002/584/JHA of 13 June 2002 on the European
warrant and the surrender procedures between Member States simplifies and speeds up the procedure of extradition
between EU member States, by requiring each national jUdicial authority (the executing judicial authority) to recognise,
ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of
another. Member State (the issuing judicial authority). As of 1 July 2004. it has replaced for the EU member States the 1957
European Ex.tradition Convention and the 1978 European Convention on the suppression of terrorism as regards
extradition; the agreement of 26 May 1989 between 12 Member States on simplifYing the transmission of extradition
requests; the 1995 Convention 00 the simplified extradition procedure; the 1996 Convention on extradition and the
relevant provisions ofthe Schengen agreement
arr~st

[4]

Article 7 ECHR
ETSno.90.
[Q.]

1)te Explanatory report on the European Convention on Extradition underlines that different approaches were
taken by the different States as, to whether the transport of a person on board of a ship or aircraft of the nationality of a
country other than the requesting or requested Parties was to be considered as transit through the territory of that country.
This question was left to be settled in practice (see Explanatory Report on Article 21, at bttp:/conveotions.Councii of
Europe.int/treaty/enireportslhthnl024.htm).

m

OJ L,.32I, 6.12.2003, p. 26..

[~J

The specific human rights obligations for Council of Europe member States in respect of extradition treaties,
including this agreement, will be dealt with below (see paras ]37-153)
.

[9]
In the context of the present opinion, the term "prisoner" means "anyone deprived of their liberty by State
authorities".
European Court ofHu'man Rights, Stocke·v. Germany judgment of 12 October 1989, Series A no. 199, opinion
of1heCommission, p, 24, § 167.

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European Court of Human Rights, Soering v. the United Kingdom judgment of7 July 1989, p. 35, § 89

European Court of Human Rights, Stocke v. Gennany, 12 October 1989, Series A no. 199, opinion of the
Commission, p.24, § 169

UJ]
European Convention on the Suppression of Terrorism, ETS 90

fH]
European 'Convention on the Prevention of Terrorism, ETS No. 196

Recommendation Rec(2005)IO of the Committee of Ministers to member States on "special investigation
techiJiques"· in relation to serious crimes including acts of ten:orism; Recommendati~n REC(2005)09 of the Committee of
Ministers to member States on the protection of witnesses and collaborators of justice; Recommendation Rec(2005)07 of
the Committee of Ministers to member States on identity and travel documents and ~e fight against terrorism.

£.11] .

See Maller/Kolb, Article 2(2), MN. 16, in; Simma (ed.), The Charter of the United Nations - A Commentary,
Oxford, 2nd ed. 2002).

lUll

Border and Transborder Armed Actions, Nicaragua v. Honduras, Jurisdiction ofthe Court and Admissibility of
the Application, lCJ Rep. 1988, 69, 105, para. 105.

wn

See·1C1Y, Prosecutor v. Funmdzija, International Legal Materials 38 (1999) 317, at p. 349; further references
in: Andreas Paulus, Jus Cogens in a Time of Hegemony and F:ragmentation, Nordic Journal ofIntemational Law 74 (2005)
297-334 (at p. 306).
[29]

European Court of Human Rights, Ocalan v.. Turkey judgment [OC] of 12 May 2005.
European Court ofHuman Rights, Kurt v. Turkey judgment of2S May 1988, § 124
Article 1 o~the Convention against TortUre and Other Cruel, Inhuman or Degrading Treatment or Punishment

European Court of Human Rights, Ireland v. UK judgment of 18 January 1978, § 167
European Court of Human Rights, Ireland v.UKjudgment, § 167.
European Court of Human Rights Selmouni v. France judgment of 29 July 1999, § 101.
European Court of Human Rights, Selmouni v. France judgment, § 101.

lnl

European Court of Human Rights, Tyrer v. United Kingdom judgment of 2S April 197&, § 29.

[~8]

European Court of Human Rights, Z v. United Kingdom judgment of 10 May 2001; A. v. the United Kingdom
jUdgment of23 September 1998, § 22.
l~9]

European Court of Human ~ights. Caloc v. France judgment of 20 July 2000.

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l.l!H

Article 2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
PunisJunent similarly States that "Eacb State Party shall take effective legislative, administrative, judicial or other measures
) to prevent acts of torture in any territory under its jurisdiction." see para. 146..
.

[:?JJ

.See European Court of Human Rights, Issli v. Turkey judgment of 6 November 2004, §§ 71-74; International
Courtef Justice, Advisory Opinion on legal consequences of the construction ofa wan in the occupied Palestinian territory,
9 July 2004, § 109. See also the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez
Burgos v. Uruguay and Celib~rti de Casarlego v. Uruguay, nos. 5211979 and 56/1979, at §§ 12.3 and 10.3 respectively. See
Inter-American Commission on Human Rights, Coard v, US, Case 10.951, Report No. 109199,29 September 1999, § 37,
and Alejandre Cuba, Case 11.589, Report No. .8619929 September 1999, § 23,

[J2J

.

'

,
Lopez Burgos, No 52/ 1979, § 12.3; Celiberti, No 5611979, § 103.3; Persons .who have fled abroad are not
prevented by Art 2 (1) from submitting an individual communication, No 25/1978, § 7.2; No, 74/1980, § 4.1; No.
11 0/1981, § 6; States parties are responsible for violations of the Covenant by foreign diplomatic representatives, No
31/1978; No S7!l979; Nr 771198Q, No 106/19&1; No 10811981; No. 125/1982

PJJ'

HRC General Comment 31, § 10.

[34]
See Also Article 33 (Prohibition of expulsion or retunl ("refoulement"» of the 195 I UN Convention relating to
the Status of Refugees. In 1990, the'United Nations General Assembly sought to ensure that human rights would receive
fuJI respect in the extradition process when it gave approval to the UN Model Treaty on Extradition which excludes
extradition not only if there are substantial grounds for believing that' the person will be prosecuted or punished in the
requesting State on account of his race, religion, nationality, ethnic origin, PQlitical opinion, sex Of status, or subjected to
torture or cruel inhuman or degrading treatment or punishment, but also "if that person has not received or would not
receive the minimum guarantees in criminal proceedings as contained in the International Covenant on Civil and Political
Rights".

European Court of Human Rights, Soering v. the United Kingdom judgment of 7 July 1989; Cbahal v. United
Kingdom judgment, of 15 November 1996, § 80.
{;§]

Soering judgment, § 86.

[3.11

U&l

D2J

Soeringjudgment, §§ 89-91.
Ahmed Hussein MuStafa Karoil Agiza v. Sweden, Decision CAT/C/34/D123312003, 24 May 2005.
European Court of Human Rights, Mamatkulov and Askerov v. TU'rkey judgment [GC] of4 February 200~.

[4QJ
European Court of Human Rights, Mamatkulov and Askerov judgment, § 76

[4~J

See European Court of Human Rights, lsayeva v, Russian Federation jUdgment of 24 February 2005, § 191;
IeJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Advisory Opinion of9 July 2004, para. 127 ("The Court notes that the derogation so notified concerns only Article 9 of the
International Covenant on Civil and Political Rights, which deals with the right to liberty and security of person and lays
down the rules applicable in cases of arrest or detention. The other Articles of the Covenant therefore remain applicable
not only on Israeli territory, but also on the Occupied Palestinian Territory")..

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[41]

Article 4(1) ICCPR has led to the fonnulation by the United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, of the so-called Siracusa Principles on the
) Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc
FJCN.4/1984/4 (1984). In paras 39-40, under the heading "Public Emergency wbich Threatens the Life ofthe Nation", it is
said: "39. A State party may take measures derogating from its obligations under the International Covenant on Civil and
Political Rights pursuant to Article 4 (hereinafter called 'derogation measures') only when faced" with a situation of
exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one
that: (a) affects the whole of the population and either the whole" or part of the territory of the State, and (b) threatens the
physical integrity of the population, the political independence or the territorial integrity of the State or the existence or
basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant 40. Internal
conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations
.
under Article 4".

L4.5J

Guidelines of the Committee. of Ministers
terrorism, II July 2002, article :XV.

of the Council of Europe on human rights and the fight against

L4..tD
House of Lords, Judgments - A (Fe) and others (FC) (Appellants) v. secretary of State for the Home
Department (Respondent) (2004)A and others (Appellants) (FC) and others v. Secretary of State for the Home Department
(Respondent) (Conjoined Appeals), [2005] UKlD... 71; House of Lords, Judgments - A (Fe) and others (FC) (Appellants) v.
Secretary of State for the Home Department (Respondent),l2004] UKHL 56; Bundesverfassungsgericbt, Aviation Security
Act, 1 BvR 357/05; Israeli Supreme Court, Public Committee Against Torture in Israel v. The State ofIsrael et at., Case
HCl.~IOO/94; Israeli Supreme Court, The Center for the Defense of the Individual v. The Commander ofIDF Forces in the
West Bank, Case HC} 3278/02; Israeli Supreme Co~ Marab v. The Commander of IDF Forces in the West Bank, Case
HC} 3239/02; see also US Supreme Court, Rasul v. Bush, Case No. 03-334. 542 US 466 (2004) 321 F.3d 1134.

[411
See Prosecutor v. Tadic (1996) 105 ILR 419, 488.
[4$]

The Manual of the Law of Armed Conflict, UK Ministry of Defence, Oxford (OUP) 2004, no. 3.5.1(at p. 31).

l4.9.1

.
See Venice Commission's opinion on possible need to further de:velop the Geneva Convention, CDL-AD
(2003)018, § 87.

L5JU

Opinion on the possible need for further development ofthe Geneva Conventions, C.QL-.1.D (200~:&lB., § 56.

[:}J]

Judgments

Sec Supreme Court ofIsrae1, HCJ 7015/02, Ajuri v. The Commander of the IDF Forces in the West Bank, in:
of
the
Supreme
Court
of brael
Fighting
Terrorism
within
"the
Law,

1LttP.;(b:.v~~.mf.~.gQ~.jJLM.EAlQ.9Yernmen.!f.L,.~~(J,.~g~sues+and+~J11lft...g$.lFigbJiOg+nrr.9ri~m::rwithw.:!:the+Lawt)...:J~=

2.QQ?J)tlJ.l, at pp. 144-178.
[5.~]

The Secretariat of tlie ICAO Council stated that "the predominant view is that all such other aircraft
[perfonning State services other than military, police and customs] WQuid in fact be considered as falling within the scope
of the Convention". In the smdy, it is recalled that under the Paris Convention of 1919 all State airm:aft other than military,
customs and police aircraft were treated as private ain:raft and subjected to an the provisions of the Paris Convention (see
Doc. C· WP/9835 of 22/09/1 993, Secretariat Study on "Civil/State aircraft" presented by the Secretary General at the ICAO
Council 140th Session, § 5.2).
I~3J

In Gennany, for example, certain flights perfonning state functions, such as transports of high government
officials or humanitarian/disaster relief flights are referred to as "civil State flights" (zivile Staatsfllige) ilnd are regarded as
civil flights in the sense of the ICAO Convention (but not necessarily in the sense of general public intemationallaw), see
Bericht der Bundesregierung (Offene Fassung) gemliB Anfordenmg des Parlamentarischen KontroUgremiums vorn 25.
Januar 2006 zu den Vorgtlngen im Zusammenhang mit dem Irakkrieg und der Bekfunpfung des lntemationalen
Terrorism us, at' bqp'://~}Y}Y.bunQ§§r~g!~IJmg."<teJ.A!!1~ge965868m~f..li;_~J±g!ll±!3.!mdt;.sJ.egi~Jl!"l}g±-+offen~fass!!o.g,pJ!r,
at
pp.62-67.

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ICAO Secretariat Study on "Civil/State Aircraft" LCI29-WPf2-1, Pellet, Dailler, Droit International Public,
, LGDJ, 7~ edition, 2002, pp. 1250; Combacau (1.), Sur (S), Droit international Public, Montchristien, Se,edition, 2001, p.
, 413; "'Status of military aircraft in intemationallaw", address at the Third International Law Seminar of 28 August 1999, by
Professor Michael Milde, formerly the head of the legal bureau of the International Civil Aviation Organisation, at: http://
~.....rgjml~gov ,,-$g{dmgl1s1.rn..~.doc; Diederiks-Verschoor, Introduction to air law, Kluwer, pp. 30 and following.
[~?l

ill the case ofa civil aircraft (8-737, MisrAir flight 2843 from Cairo to Tunis) carrying, on the basis of charter

by the Government, suspected terrorists out of the country under Military Police escort and intercepted and forced to land
in Italy by the us military based in Italy, the ,US qovenunent, in Ii letter to the International Federation of Air Line Pilots

Association, stated: "It is our view that the aircraft was operating as a state aircraft at the time of interception. The relevant
factors - including exclusive State purpose and function of the mission, the presence of armed military personnel on bo!U'd
and the secrecy under which the mission was attempted - compel this conclusion". This case, quoted in lCAO document
LCI29·WPI2-I, pp. 11-12, was cited by Professor Milde, see above, footnote 54. See also A. Cassese, Terrorism, Politics
. '
'
and Law, the Achille LaUro case, Folity Press, p. 39.
[~Ql
l~.7)

'

Diederiks-Verschoor, Intr9duction to air Jaw, Kluwer, pp. 30 § 12. See also footnote 52.

.

Status
'of
ratifications
of
the
Chicago
Convention
available
'http://www.ICAO.intllCD8IHTMLIEnglisbIRepresentative%2080dieslCouncillWorking%20Papers%20by%
20Sessionll63/c. 163.wp.! )64 t.enlC.163.WP.ll641.ATT.EN.HTM

at:

r:>"~l

See M. Milde, "Status of military aircraft in international law", address at the Third International Law Seminar
of28 August 1999, op. cit.
The United Nations Convention on Jurisdictional Immunities of States and their Property, signed on I March
• 2004, provides in its Article 3 § 3 that «The present Convention is without prejudice to the immunities enjoyed by a State
" under international law with respect to aircraft or space objects owned or operated by the State".

l6.m

See Pellet, Dailler, Droit International Public, op. cit., p. 1252; A. Cassese, Terrorism, Politics and Law, ap.

cit., p. 39.
See "Status of military aircraft in international law", address at the Third International Law Seminar of 28
August 1999, by Professor Michael Milde, formerly the head of the legal bureau of the International Civil Aviation
Organisation, at: http://www.mindef.gov.sg/dmgllslII399.dOC.

l6.:U

Para. a) of Article 3bis of the Chicago Convention provides that" The contracting States recognize that every
State must refrain trom resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the
Jives of persons on board and the safety of aircraft must not be endangered. This provision sha~l not be interpreted as
modifying in any w~y the rights and obligations of States set forth in the Charter of the United Nations.
'
For Geffilany see Schonke/SchrMer, Strafgesetzbuch, 26th ed. 2001, Vor §§ 3-7, para. 30, and § 153 c'
StrafProzessordl1ung (Law on Criminal Procedure), according to which the Public Prosecutor may abstain from prosecuting
a crime which has been committed by a foreigner in a foreign aircraft; this provision presupposes that full jurisdiction over
foreign aircraft in flight exists and only gives the Pro~ecutor a discretionary power not to exercise this jurisdiction, see
Meyer-GoBner. Strafprozessordnung. 48 th ed. 2005. See also, e.g. Males (French Cour de Cassation, 29 June 1972,27 June
1973, 73 ILR 698), Public Prosecutor v. Janos V. Austrian Supreme Court 17 May 1972, 71 ILR 229, Air India v.
Wiggens, UK House of Lords, 3 July 1980, 77 rLR 276), US v. Georgescu, 723 F. Sllpp. 912 (1989).

[q41
Tokyo, 14 Septcm~r 1963, UNTS 704.

[(is]
ICJ judgment on the North Sea Continental Shelf Cases (Federal Republic of Gennany v Denmark; Federal
'

Republic of Gennany v Netherlands) {1969] Ie] Reports 4 at 26 (§ 30).

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http://www. venice.coe.intJdocs/2006/CDL-AD(2006)009-e.asp?PrintVersion=True&L=E

......

4/13/2006

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Strasbourg, 17 March 2006

Opinion no. 363 12005

RELEASED IN- PART
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CDL··irrJ{:zumDJm:...,r:J.,,-r
I~
Or. Eng!. '--_.....
"35

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
on the INTERNATIONAL legal obligations
of Council ofEurope member States .
in respect ofsecret detention facilities

and inter-State transport of PRISONERS
adopted by the Venice Commission
at its 66th Plenary Session

(Vellice, 17-18 March 2006)
.,.--

on the basis of comments by

Mi lain CAMERON (Substitute Member, Sweden)
Mr Pieter van DIJK (Member, the Netherlands)
Mr Olivier DUTHEILLET de LAMOTHE (Member, France)
Mr Jan HELGESEN (Member, Norway)
Mr Giorgio MALINVERNI (Member, Switzerland)

Mr Georg NOLTE (Substitute Member, Germany)
TABLE OF CONTENTS

INTRODUCTION.. 3
SECTION 1: THE LEGAL REGIME.. 4

A. General (2rinciples. 4
a. Regular inter-State transfers of prisoners. 4
b. Irregular inter-State transfers of prisoners. 8
c. International co-operation in the fight against terrorism .. 9

d. Some observations on' State resQonsibility. 10
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

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B. Human rights law.. 11

a. The rights at issue. 11
i)

Liberty and security of person. 12
."

mTorture, inhuman and degrading treatment or punishment 13
b. Scope of the duty of Council of Europe member States to secure human rights. 15
c. Limitations on the competence to transfer prisoners imoosed by human rights
obligations 16
d. Derogations. 17
C. International Humanitarian law.. 19
D. General principles of civil aviation. 20
E. Military bases. 25 "
F. Article V of the NATO Treaty. 26

SECTION II - THE INTERNATIONAL LEGAL OBLIGATIONS OF COUNCIL OF
EUROPE MEMBER StATES. 27
A. Council of Europe member States' obligations in respect of arrests by foreign

authorities on their territor!. 27

B. Council of Europe member States' obligations in respect of alleged secret
detention facilities 28
C. Council of Europe member States' obligations in respect of inter-state transfers
of prisoners 31

CONCLUSIONS.3S

INTRODUCTION
J. Bya letter of 15 December 2005,
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.--

MrP.!p}s...MEffy, chairperson ofthe Committee on

Legal Affairs and Human Rights ofthe Parliamentary Assembly ofthe Council ofEurope,
r:..quested an opinion o[the Commission in respect ofthe following inter-related matters:
-,a) At? assessment o[the legality ofsecret detention centres in the light ofthe·Council.of
Europe member States' international law obligq.tions, in particular the European
Convention on Human Rights (ECHR) and the European Conventionfor the Prevention
o/Torture. In particular, to.....what extent is a State responsible if-actively or passivelyit permits illegal detention or abduction by a third State or an agent thereof?
b) What are the legal obligations ofCouncil ofEurope member States, under human

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.

. rights and geneta/ international law. regarding the trq1JSport ofdetainees by other States
througl1 their territory, including the airspace? What is the relationship between such
obligations andpossible countervailing obligations which derive from other treaties,
including treaties concluded with non-member States ? - '
'

D

.

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,

2. A working group was set up, which was composed ofthe following members: Mr lain
Cameron, MrPieter van Dijk, Mr Olivier Dutheil/et de Lamothe, Mr Jan Helgesen, Mr
Giorgio Malinverni and Mr Georg Nolte. It was assisted by Ms Simona GranataMenghini, Head ofthe Constitutional Co-operation Division.
3. Two working meetings were held in Paris, on J 3 January and on 27 and 28 February
2006.

4. The Working Group sought the assistance of/he NATO Legal Services and requested
clarifications in relation10 ceriliin matters ofmilitary law as well as certain documents.
Regrettably, the Commission was not provided with eitherofthem.
5. The Working Group availed itselfofthe valuable assistance ofthe International Civil
Aviation Organisation (ICAO), whose Legal Bureau provided documentation about the
interpretation ofcertain provisions ofthe Chic;ago Convention on International Civil
Aviation. The Commission wishes to express its appreCiation and gratitude for the cooperation ofthe lCAO

D

6. The present study was discussed within the Sub-Commissio'!1s on International Law
and on Vemocriitic Institutions in the course ofajoint meeting on 16 March 2006, and
was subsequently adQJJled by the Commiysjon at its 66'hPlenary Session (Venice,. 17-I8
March 2006).

!'

·1,
I

7. The present opinion does not aim, nor does it have the ambition to assess the facts in
relation to the current allegations about the existence ofsecret detention facilities in
Europe or about the transport ofdetainees by the CIA through the territory (including the
airspace) ofcertain European States. This is not the task ofthe Venice Commission. It is
instead the object ofthe report that is in the process ofbeing prepared by the PACE'
Legal Affairs Committee.

1..-.

---'

8. This opinion does not aim at identifying the pertinent internal law andpractice ofthe
Council ofEurope member-States either. On 21 November 2005, the Secretary General
ofthe Council ofEurope decided to use his power ofinquiry under Article 52 ofthe
ECHR and invited the Council ofEurope member States to furnish an explanation ofthe
manner in which their internal law ensures the effective implementation ofthe ECHR in
relation to secret detention and transport ofdetainees. On 28 February 2006, the
Secretary General presented his report based on the replies submitted by all member
States (See the Secretary General's report under Article 52 ECHR on the question of
secret detention and transport ofdetainees suspected ofterrorist acts, notably by or at
the instigation offoreign agencies, SGIInf (2006)5).
9. The aim ofthis opinion is to provide a reply to the questions put by PACE Legal
Affairs Committee, and thus to identify the obligations ofCouncil ofEurope member
States under public international/aw in general and under human rightfL law ill

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particular, in respect ofthe irregular transport, extradition, deportation or detention of
priSOiiers. In order to be. able to do so, the Commission deems that it is necessary to
outline at the outset the basic rules under international law, human rights law,
humanitarian law and air law (Section I) in respect ofdetention and inter-State transport
ofprisoners. The Commission will subsequently proceea with the identification 'ofthe
specific obligations ofCquncil ofEurope member States in these areas (Section II), and
. will then answer the questions pUt by PACE (Conclusions).

SECTION I: THE LEGAL REGIME
A. General principles
a. Re Jar inter-8tate transfers of
r------'------'!

'--

10. Under international law and hum
'ghts law. there are four situations in which a
State may lawfully transfer_a prisone t() another State: deportation. extradition, transit
and transfer of sentenced persons for the purposes of serving their sentence in another
country.

11. Deportation is the expulsion from a country of an alien whose presence is unwanted
or deemed prejudicial. A person against whom a deportation decision has been taken by
--' an administrative authority must have the possibility of applying to a competent authority .
ill. preferably a courtill. Deportation is only possible on the specific grounds indicated
by the pertinent national law.
12. Extradition is a fonnal procedure whereby an individual who is suspected to have
committed a criminal offence and is held by one State is transferred to another State for
trial or, if the suspect has already been tried and found guilty. to serve his or her sentence.

13. Extradition is a process to which both international and national law apply. While
extradition treaties may provide for the transfer of criminal suspects or sentenced persons
between States, domestic law detennines under what conditions and according to which
procedure the person concerned is to be surrendered in accordance with such treaties.
Extradition legislation varies significantly among the different European countries,
notably as concerns the incorporation oftreaties into' national law, procedural guarantees.
especially the respective role of the executive and the judiciary in the extradition process,
and the proof{and assurances) required. for extradition.
14. In Council of Europe member States, extradition laws must take into consideration, or
be interpreted in conformity with constitutional provisions guaranteeing human rights and
international human rights treaties and humanitarian law.
15. The 1957 European Convention on Extraditionlli requires, like most bilateral
extradition treaties nowadays, respect for the principles of ne bis in idem and speciality. It
also forbids extradition to a country where the death penalty would be carried out. The
same is true if the ~xtraditing State has "substantial grounds for believing that a request
for extradition for an ordinary criminal offence has been made for the purpose of
prosecuting or punishing a person on account his race, religion, nationality or political
opinion, or that that person's position may be prejudiced for any of these reasons". In

of

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addition, the nulla poena prinCiple has to be respected.ill
16; The 1977 European Convention on the Suppression of Terrorismill was adopted with
a view to eliminating or restricting the possibility for the requested State of invoking the
political nature ofan offence in order to oppose an extradition request·in resp'ect of
terrorist acts. Under this Conventio~ for extradition purposes, certain specified offences
shall never be regarded as "politica1~' (Article 1) and other specified offences may not be
regarded as such (Article 2), notwithstanding their political content or motivation. There
is no obligation, and even a prohibition to extradite, however, ifthe requested State has
substantial grounds for believing that the request for extradition has been' made for the
purpose ofprosecuting or punishing a person on account ofhis race, religion, nationality
or political opinion or that the position ofthe person whose extradition is requested may
be prejudiced for any of these reasons.

17. Transit is an act whereby State B provides facilities for State A to send a ~;~)
through its terrl.!ory.
.
.
.
~
18. Transit is regulated by bilateral and multilateral treaties, inter alia Article 21 of the
European Convention on Extradition, which provides:

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J. Transit through the territory ofone ofthe Contracting Parties shall be granted on
submissioYJ ofa request by the means mentioned in Article J2, paragraph 1, provided that·
the offence concerned is not considered by the Party requested to grant transit as an
offimce ofa political or purely military character having regard to Articles 3 and 4 of
this Convention.
.
.
2. Transit ofa national, within the meaning ofArticle 6, ofa country requested to grant
transit may be refused.
3. Subject to the provisions ofparagraph 4 ofthis article, it shall be necessary to produce
the documents mentioned in Article J2, paragraph 2.
4.

If air transport is used, the following provisions shall apply:

a when it is not intended to land, the requesting Party shall notify the Party over whose
territory the flight is to be made and shall certify that one ofthe documents mentioned in
Article 12, paragraph 2,. a exists. In the case ofan unscheduled landing, such notification
shall have the effect ofa request for provisional arrest as prOVidedfor in Article 16, and
the requesting Party shall submit aformal requestfor transit;
b when it is intended to land, the requesting Par!)?shall submit a formal request for
transit.

----5. A Party may, however, qt the lime ofsignature or ofthe deposit ofits instrument of
ratification oj or accession to, this Convention, declare that it will only grant transit ofa
person on some or all ofthe conditions on which it grants extradition. In that event,
reciprocity may be a p p l i e d . '
.
6. The transit ofthe extraditedperson shall not be carried out through any territory
where there is reason to believe that his life or his freedom may be threatened by reason

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ofhis race, religion, nationality or political opinion.
19. Although the wording of Article 21 § 4 a) indicates that States need to "notifY" a
transit flight, State practice on this matter may vary, and indeed some States do not
appear to require notification of transit of a prisoner by air over their territory, when no
landing is planned[§J..
.

20. Eur~pean Council Directive no. 2003111 OIEC. of 25 November 2003 on assistance in
cases of transit for the purposes ofremoval by airIlJ., underlines that "member States are
to implement this Directive with due respect for human rights and fundamental freedoms"
r--------,and that "in accordance with the applicable international obligations, tr~~!!..!?Lair sh2uld
be neither r~9..~este~_p.9manted if in the third country of destination or of ~~ the .
thfr..!~ountry national fac~s the threat of inhumane or humiliatin[ treatm~t, t<.?~or the
death penalty, '?~)(!!i~J.~fe '?~ Jiber.!Y. would be at .risk by re~~n ofhislher race, religion,
'-------' nationality;membership ofa particular social group or political"conviction". Pursuant to
Article 4 oftl)e Directive,
u 1. The requestjOr escorted or unescorted transit by air and the associated assistance
measures under Article 5(1) sAa/l be made in writing by the requesting Member State. It
shall reach the requested Member State as early as possible, and in any case no later
than two days before the transit. This time limit may be waived in particularly urgent and!·
dulyjustified cases.

2. The requested Member State shall inform the requesting Member State forthwith of its
decision within two days. This time limit may be extended in duly justified cases by a
maximum of 48 hours. Transit by air shall not be started without the approval ofthe
requested Member State.

Where no reply is provided by the requested Member State within the deadline referred to
in the first subparagraph, the transit operations may be started by means of a notification
by the requesting Member State.
v

Member States may provide on the basis of bilateral or multilateral agreements or
arrangements that the transit operations may be started by means of a notification by the
requesting Member State."
r------..,.;....:~..:L,;;:
1. Under this Directive, with respect to any request for transit> the requesting me~ber
State must provide the Ie nested member State with information ab ut the third-country
natIonal to w om e transit request relates, flight details and.further infonnation about
the state of health of the person and possible public order concerns.

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change the obligations ~f member States of the Council of Europe under hum~ rights
treaties, see below, para. 147); if an unscheduled landing occurs, the State on whose
territory the landing takes place may require a request for transit.
23. States may enter into agreements concemillg the transfer ofsentencedpersons for the
purpose ofserving their sentence in their country oforigin. Such procedures are not
relevant for this opinion.

24. A transfer is unla' or irregular when the government of State B transfers a person
fromState B to the custody of State ~ against his or her consent, in a procedure not set
out in law (i.e: not extraditio~ deportation, transit or transfer with a view to sentenceserving).

B~

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25. The,kidnapping ofa person by agents of State A on the territory of State B an4 his or
her removal to State A or to a third State is a violation of State B's territorial sovereignty
and therefore an intem!ltionally wrongful act which engages the internati,onal
responsibility of State AJlQl. .",t....t {e ~~ ....
26. Under general international law (see para. 37 below), in such a case State A has to '
make "full reparation for the injury caused by the internationally wrongful act" at the
request of the injured State, which, in this case, would include the return of the person in
question. The rights ofthe person in question vis-A-vis State A depend upon the latter's
law, on the applicable hwnan rights obligations.
'
27..Irregular tran~fers may take place with the acquiescence ofthe territorial government.
This typeof Situation raises a human rigbts issue. For a Rechtsstaat, it will also raise the
issues of governmental responsibility for acts of its organs and services and of
parliamentary control over government.
28. Another f0t:!!l of irregular transfer happens where some section of the public
authorities in State B (police, security forces etc.) transfers a person from State B but not
in accordance with a procedure set out in law, or even contrary to domestic law. This, in
tli.l'Il,1ffiiY take the form of official participation in the transfer (arresting and handing
over), or facilitating a kidnapping (actively, or passively - not preventing a kidnapping
which it was known would occur). The security/police action may occur with or without
government knowledge.
29. If there is no legal basis fo;r an active measure (arrest, handing over etc) under,
national law, then there will be in such cases a breach of national law on arrest, and
consequently also a breach of Article 5 of the European Convention on Human Rights.
This situation also raises the"issue of governmental control over the security/police
services, and parliamentary control over the government (see below, §§ 38-43).
30. As regards the terminology used to refer to irregular transfer and detention of
prisoners, the Venice Commission notes that the public debate frequently uses the term
"rendition". This.QQ.Qt a term used in intemationallaw. The term refers to one State
[ obtainirigcustody over a person suspected of involvement in serious crime (e.g.

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terrorism) in the territory ofanother State and/or the transfer of such a person to custody
r-----,in the first State's territory, or a place subject to its jurisdiction, or to a third State.
HRenditjon" is thus a general tenn referring more to the result - obtaining ofcustody over
a suspected person - rather than the meaps. Whether a particular "rendition" is lawful
will depend upon the laws ofthe States concerned and on the applicable rules of
international law, in particular human rights law. ljlUS.1. even if a particular "rendition" is
in accordance with the national law Qfone of the States involved (which may not forbid
or even regulate extraterritorial activities ofstate organs),it may still be unlawful UQder
the national law ofthe other State(s). Moreover, a "rendition" maybe contrary to .
cUStomary mternahona11aw and treaty or customary obligations undertaken by the
participating State(s) under human rights law and/or international humanitarian law.

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31. The tenn "extraordinary rendition" appears to be used when there is little no doubt
that the obtaining of custody over a person is not in accordance with the existing legal
procedures applying in the State where the person was situated at the time.
'-------'
c. International co-operation in the fight against terrorism
32. General intemationallaw allows States to cooperate in the transport of detainees,
provided that such transport is carried out in full respect of human rights and other
international legal obligations of the States concerned. Numerous international treaties
confirm this rule.

/

33. As movement around the world becomes easier and crime takes on a larger
international dimension, i~ is increasingly in the interest of all nations that terrorist crimes
be prevented and that persons who are suspected"of having committed a very serious
crime and are suspected to have acted" from abroad or who have fled abroad should be
brought to justice. Conversely, the establishment of safe havens for persons who are
preparing terrorist crimes or who are suspected of having committed a serious crime
would not only result in danger for the State harbouring the protected person but also tend
to undermine the foundations of extraditionUll.

34. The European Convention on Human Rights does not, in principle, prevent
cooperation between States, within the framework of extradition treaties or in matters of
deport~tion, for the purpose ofbringing suspects of serious crimes to justice. provided
that it does not interfere with any of the rights or freedoms recognised in the ECHRI.J1l.
35. The Council of Europe has produced several international instruments and
recoriunendations relating to the fight against terrorism, "including three international
treaties dealing with suppression ofterrorismIll1, prevention ofterrorismillJ. and money"
laundering and terrorist financinfill2l, and three recommendations of the Committee of
Ministers to mem1:>er States relating to special investigation techniques; protection of
witnesses and collaborators ofjustice; and questions of identity documents which arise in
connection with terrorismll§l.

36. An additional set of standards aimed specifically at safeguarding hwnan rights and
fundamental freedoms has been produced after 2001, namely the Guidelines on Huma.t)
Rights and the Fight Against Terrorism (2002), a Policy Recommendation on Combating
Racism While Fighting Terrorism (2004), the additional Guidelines on the Protection

of

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ViCtims of Terrorist Acts (2005) and a Declaration on Freedom of expression and
information in the media in the context of the fight against'terrorism (2005).

d. Some observations on' State responsibility
37. When a State commits, through its' agents acting in their official capacity, an
internationally wrongful act, it incurs responsibility and "is under obligation to make
full reparation for the injwy caused by the internationally wrongful act" at the request of
the injured State (see Article 31 para. 1 of the International Law Commission (ILC)'s
Articles on State Responsibility)..

an

38. With respect to the imputability of an international wrong, the question arises of
whether and to what extent a State incurs responsibiHtr when its agents have ultra vires.
consented expressly or impliedly by rendering assistance, to acts of a foreign State
infiinging its territorial sovereignty (see above, paras. 27 and 29).
39. Ultra vires acts usually bind the State for the purposes of State responsibility (Article
'
'7, IL~ Articles on State Responsibility).
~onsent to carry out activities which otherwise would be internationally wrongful
re~tS them lawful;'unless these activities are rontrnty tajus mgellS (see para. 42

40.

below). However, consent to an interference with sovereignty must be validly given
(Article 20, ILC Articles on State Responsibility). In this context, Article 46 ofthe
Vienna Convention ofthe L~w ofTreaties is pertinent. It provides that:

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1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and concerned a rule
of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively €vident to any State conducting itself
in the matter in accordance with normal practice and in good faith.

r-

41. In the opinion of the Commission, if a public authority of a State would give a per--,mission to the representative of another State to arrest and/or transfer a person against his
will from the territory of that State and it is clear that this would be outside of the
ordinary Gudicial, administrative) procedures for such arrest/transfer, such permission
would be a manifest violation of a rule of internal law of fundamental importance i.ti any
State under the rule oflaw. Such permission could therefore not be invoked by the other
State as valid consent.

42. Even where such pennission does not result in the conclusion of or accession to a
'-------...Jtreaty, the Law of Treaties insofar reflects the general principle of good faith.il11 This
principle is "one of the most basic principles governing the creation and performance of
legal obligatio'ns"Iru. The giving of a pennission is comparable to the conclusion of a
treaty insofar as the validity of consent is concerned. In any case, the validity of any
consent as a circumstance precluding wrongfulness in intemationallaw is limited by the
rule enUnciated in Artic1e 26 of the ILC Articles on State Responsibility:
"Nothing in this Chapter precludes the wrongfulness ofany act ofa State which is not in

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conformity with an obligation arising under a peremptory norm ofgeneral international
law."
.
.
43. A nonn is of peremptory character (jus cogens) when it "is accepted and recognized
by.the international community of States as a whole as a nonn from which no derogation
is pennitted" (Article 53 ofthe Vienna Convention of the Law of Treaties). These nonns
include, inter alia, the prohibitions of genocide, aggression, crimes against humanity,
slavery, piracy and torture.ll.2l
44. In order to be considered wrongful, an act must be inconsistent with an international
.obligation ofthe State which commits it. For Council of Europe member States, in the
present context, the obligation in question stems directly from the European Convention
on Human Rights, namel from the obligation not to expose anyone to the risk of
treatment contrary t
·de 3, e obligation to prevent any detention iIi breach of
·cle 5 d the ob Igation to investigate into any substantiated claim that an individual
L...J.........1":e""en taken into Unacknowledged custody. These obligations may be breached by a
State also by merely but knowingly letting its territory be used by a third State in order to
commit a breach of international law.
45. For a State knowingly to provide transit facilities to another State may amount to
provjding assistance to the latter in committing a wrongful act, if the former State is
aware of the wrongful character of the act concerned. Under general intemationallaw
(see Article 16 ILC Articles on State Responsibility) "a State which aids or assists another
State in the commission ofan internationally wrongful act by the latter is internationally
responsible for doing so if: (a) that State does s~ with knowledge of the circumstances of
the internationally wrongful act~ and (b) the act would be internationally wrongful if
committed by that State."
46: The consequences of irregular transfers and secret deteptions from the viewpoint of
human rights law for Council of Europe member States will be examined below (see
paras. 137-153).

B. Human rights law
a. The rights at issue
47. Council of Europe member States are committed to respecting fundamental rights~ as
defined by a number of international treaties, both at the universal level (includlng the
1966 International Covenant on Civil and Political Rights ("ICCPR"), and the 1987 UN
Convention against Torture and Other Cruel, Inhuman ~r Degrading Treatment or
Punishment; and at the European level, in primis the European Convention on Human
Rights, but also the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment).
'

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48. With respect to ~he matters which form the object of the present opinion, the
fUndamental ri hts which are at issue are primaril the right to liberty and security of .
I:erson an the ban on torture and other inhuman or degrading treatments or punlspments.
i) Liberty and security of person

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49. Articl

;;l

.t5J

CHR protects theriglrt to liberty and security ofperson. Although this
is not ab~ (see the authorized deprivations of liberty under paragraph 1 a) to f) of
Article 5), a person may only be detained on the basis of and according to procedures set
out by the law, and the law in question must Eie consIstent with recognised European
staiIljmds, that is inter alia with the (other) provisions of the ECHR. In addition,
paragraph 4 of Article 5 provides for all forms ofdeprivation ofiiberty allowed Wlder that
article, that the detainee "shall be entitled to take proceedings by which the lawfulness of
his detention .shall be decided speedily by a court and his release ordered ifthe detention
is not lawful" (habeas corpus).

D

50. Detention must be lawful and in accordance with a procedure prescribed by law: in
the European Court ofHwnan Rights' view, the requirement of lawfulness means that
both domestic law and the ECHR must be respected. The possible reasons for detention
are exhaustively enwnerated in Article 5 (1) ECHR. Paragraph 1 (c) of Article 5 permits
''the lawful arrest or detention of a person effected for the pUrpOse of having committed
an offence or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so", while paragraph (f) of Article 5 permits "the
lawful arrest or detention of a person to prevent his effecting an unauthorised entry into
the country ·or of a person against whom action is being taken with a view to deportation
or extradition." A detention for any reason other than those listed in Article 5 § 1 is I------=~
unlawful and thus a violation of a hwnan right.
.

*

D

51. As regards extradition arrangements between States, when one is a party to the ECHR
and the other is not, the rules established by an extradition treaty or, in the absence ofany
'such treaty, the cooperation between the States concerned are also relevant factors to be
taken into account for determining whether the arrest was lawful. The fact that a pers!>n
ha~ been handed over as a result of cooperation between States does not in itself make the
arrest unIaWfiiI or give rise to an Issue Mde! Article 5. However, for the member States
ofthe Council of Europe the provlslo:QS ofthe extradition treaty or the practice of
cooperation cannot justify any deviation of their obligations under the ECHR; for those
States the decisive factor is whether the extradition is according to domestic law and
respects the State's obligations under the ECHR.

f

52. The ECHR contains no provisions concerning the exact circumstances in which .
extradition may be granted, the procedure to be followed before extradition may be
granted. Subject to its being the "result of cooperation between the States concerned and
provided that the 'legal basis for the order for the suspect's arrest is an arrest warrant
issued by the authorities of the suspect's State of origin, even an a ical ex diti
to the E
I2Q1. IS being said, it has
. cannot as such be r arded as bein contr
so to e stressed that several rights and free
protected by the ECHR, may be
relevant in the case of extradition and will have to be respected, the most important being
Articles 2 and 3, and in some circumstances Articles 5 and 6.

or

53. Article 5 must be Seen as requiring the authorities ofthe territorial State to take
effective measures to safeguard against the risk of disappearance and to conduct a prompt
effective investigation into a substantiated claim that a person has been taken into custody
and has not been seen since[21 ].'

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UNCLASSIFIED

Ii) Torture, inhuman and degrading treatment or punishment

54. Torture is prohibited by Articl4)CHR, Article 7 ICCPR the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and .
the UN Convention against Torture and other Cf!lel, Inhuman or Degrading Treatment or
Punishment. It is defined as "any act by which severe pain or suffering, whether.physical
or mental, is intentionally inflicted on a person for'such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having' committed, or.intimidatirig or coercing
him or a third person, or for any reason bl.'!-Sed on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence
ofa public official or other person acting in an official capacity. It does not include pain
or suffering arising only from, inherent in or incidental to lawful sanctions."[22]
55. The crucial distinction between "torture", "inhuman treatment" and t<degrading
treatment" lies in the degree ofsuffering caused.
'
56. t<Inhuman treatment" is such treatment which causes severe suffering, mental or
physical, which, in th~ particular situation, is unjustifiable. Unlike torture, inhuman
. treatment does not need to be intended to cause suffering.ID1 In its judgment in Ireland
v. United Kingdom[24], the European Court of Human Rights held that the so-called
"five techniques" were'inhuman treatment. This decision has sometimes been
misunderstood to mean that the same or similar techniques would not amount to torture.
owever, in the Selmouni case the Court later clarified that, since the Convention is a
"living instrument which must be interpreted in the light of present-day conditions", acts
which were classified in the past as "inhuman and degrading treatment"'could be
'--_ _--' lassified as torture in future.[251 The Court stated that "the increasingly high standard
being required in the area of the protection of human rights and fundainentalliberties
correspondingly and inevitably requires greater firmness in assessing breaches of the
. fundamental values of democratic societies."[26]

'
a

D

B5 I

I

57. "Degrading treatment" is treatment which grossly humiliates or debases a person
before others or drives him to act against his will or conscience. Although causing less
suffering than torture or inhuman treatment, it must attain a minimum level[27]. It too
does not need to be intended to cause suffering.

l

58. The prohibition of torture aI)d inhuman or degrading treatment or punishment
enshrines one of the most fundamental values of democratic societies. As the European
Court ofHuman Rights has stated on many occasions, even in the most difficult
circumstances, such as the fight against terrorism and organised crime, the ECHR
prohibits in absolute terms torture and. inhuman or degrading treatment or punishment.
Unlike most of the substantive clauses of the ECHR and of Protocols Nos. 1 and 4,
Article 3 makes no provision for limitations and no derogation from it is pennissible
under Article 15 § 2, not even in the event of a public emergency threatening the life of
the nation.

59. Article 2, paragraph 2, of the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment ("the UN Convention against Torture")

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L0214

UNCLASSIFIED

expressly States that "No exceptional circumstances whatsoever~ whether a State of war .
. or a thre~t of war, internal political instability or any other public emergency, may be
invoked as ajustification of torture."
60. The European Convention for the Prevention of Torture and Inhuman and Degrading
Treatment ("ECPT") establishes the Europe?Jl Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment ("Cpr') which, "by means of visits,
examines the treatment of persons deprived of their liberty with a view to strengthening,
if necessary, the protection of such persons from torture and from inhuman or degrading
tr~tment or punishment."~ Pursuant to Article 2 ofthis Convention, CPT can visit any
, place on the territory ofmem1;>er States where a person is deprived of their liberty (i.e.
including military bases, non-official detention centres such as the offices of the '
intelligence service or a particular police department - drugs, anti-terrorism - if CPT
believes that perSons are being held/interviewed in these offices).
61. Member States of the EeRR not only have the obligation not to torture but also the
duty to prevent torture.~ In addition they have an obligation of investigation. Under
this obligation Member States must assure an efficient, effeCtive and impartial
investigation.[291 As soon as the authorities receive substantiated information giving rise
to the suspicion that torture or inhuman or degrading treatment has been committed, a,
duty to investigate arises whether and in which circumstances torture has been
committed.

b. Scope of the duty of Council of Europe member States to secure human rights
62. Under Article 1 ofthe ECHR, "The"High Contracting Parties shall secure to everyone
within theirjurisdiction the rights and freedoms defined in Section I ofthis Convention~'
[30]. According to the European Court of Human Rights, the notion of "jurisdiction" is
primarily territorial. It does, however, exceptionally extend to certain other cases, such as
acts of public authority performed abroad by diplomatic or consular representatives of the
State, or b~ctsperformed on board vessels flying the State flag or
on aircraft or'spacecraft registered there.
63. There is a presumption that jurisdiction is exercised by the State throughout its
territory. States may also be held accountable for human rights violations occurring
outside their territory in certain situations.Ql1.
64. Article 2 ofthe International Covenant on Civil and Political Rights provides that a
State Party undertakes to "respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant."

lnte~tio~venant

'l

on Civil and Political Rights
65. The term "jurisdiction" under the
is comparable to the same term under th1~~ropean Convention on fIuman Rights. It is
also not limited to territorial jurisdiction. The Human Rights Committee has held, for
example, that co~unications by persons who were kidnapped by agents in a
neighbouring States are admissible, reasoning that States Parties are responsible for the
actions of their agents on foreign territory[32]. The Human Rights Committee also
clarified in its General Comment no. 31 that "a State Party must respect and ensure the
rights laid down in the Covenant to anyone within the power or effective control of that

UNCLASSIFIED
L0215

UNCLASSIFIED

State Party, even ifnot situated within the tenitoty of the State Party."illl
66. The duty of State parties under Article 1 ECHR to "secure" to everyone within their
jurisdiction "the rights and freedoms ... ofthis Convention" is not limited to the duty of
.state organs not to violate these rights themselves. This duty also includes positive
obligations to protect individuals against infring~ments of their rights by third parties, be
they private individuals or organs ofthird States operating within the jurisdiction ofthe
State party concerned (see para. 146 below). The European Court ofHwnan Rights has,
in particular, recognized positive obligations which flow from the prohibition oftorture
and inhuman treatment, the right to life, and the right to freedom and security. Such
positive obligations include duties to investigate, especially in the case of disappeared
persons, and to provide for effective remedies.
c. Limitations on the competence to transfer prisoners imposed by human rights
obligations

67. The international condemnation oftortUre has a clear impact on extradition and
deportation. Article 3 ofthe UN Convention against Torture prevents States Parties from
"expelling, returning ("refouler") or extraditing a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture"

00·
68. The ECHR does not gUarantee a right not to be extradited or deported. Nor is there a
right to political asylum. Extradition and deportation are not per se in breach of Article 3
of the ECHR.. Nonetheless, extradition or deportation may run counter to provisions of
the ECHR. According to the Soering doctrine of the European Court of Human Rights, a
State may be held responsible for a violation of Articles 2 and 3, in flagrant cases also of
possible violations ofArticles 5 and' 6 ECHR, if its decision, permission or other action
has created a real risk of a violation of these rights by the State to which the prisoner is to
be transferred..Q.2} It is of no relevance in such case whether the State on whose tenitory
the violation will or could ultimately take place is also bound by the ECHRUQl. '
69. Under what circumstances a State rna be dee
t a "real risk of
a vio attOn" is to be determined in each separate case. Indeed, the establishment of the
responsibility of a State in respect of an extradition or deportation inevitably involves an
assessment of conditions in the requesting or receiving country against the standards of
Article 3 ECHR. Nonetheless, the responsibility of the requesting or receiving country,
whether under general intemationallaw, under the ECHR or otlj.erwise, is not decisive for,
the liability of the extraditing State under the ECHR. Such liability may have been
incurred by the latter member State by reason. of its having taken action which has as a
direct consequence the exposure of an individual to ill-treatment prohibited by Arti~le 3
ECHR[37].
70. In the Agiza case, the UN Committee against Torture found a violation of article 3, as
Sweden, at the time of the complainant's removal to Egypt, knew or should have known
that Egypt resorted to consisten~ ~d, widespread use of torture againstJ2!.i~?ners, and
th"ereforlrthatthe-compla.lnantwas at a real risk of torture. In the opinion of the
Committee, the procurement of diplomatic assurances, which, moreover~ had no effective

.,-------=---------UNCLASSIFIED

L0216

,UNCLASSIFIED
Bsi
I
I

mechanism for enforcement, did not suffice to protect against this risk[38].

n.'In the
atkul
ase, the European Court of Human Rights accepted that
assurances lea lng' 0 extradition/deportation can take away the real risk oftorture, even
when the follow-up procedures were not extensive[39]. However, the assessmeJ;lt of
diplomatic assurances in this caSe should not be overestimated. The Court merely took
"fonnal cognizance ofthe diplomatic notes from the Uzbek authorities that have been
produced by the Turkish Govemment"[40]. Moreover, there was no substantiated ,--------,
evidence in the individual case that the people in question had in fact ,been tortured.
-'
Finally, according to the European Court ofHuman Rights, the existence ofthe,ri* must
be assessed ''primarily with reference to those facts which were known or ought to have
been known to the Contracting State at the time of the expulsion·"Hll

I

d. Derogations

,

72. Under Article 15 ECH~ a Contracting State may derogate from certain o"'fl'7"·ts-'"----~
obligations under the ECHR "in time ofwar or other public emergency threatening the
life of the nation. Among these "derogable" obligations are also those laid down in'
Articles 5 and 6; but, under paragraph 2 of Article 15, not those laid down in Articles 2,
except in respect of deaths resulting from lawful acts ofwar, or from Articles 3,4
(paragraph 1) and 7[42]. However, a State may apply Article 15 only if and to the extent'
that a war or other public emergency threatening the life of the nation presents itself in
that very same State, and the d~rogating measures are "strictly required by the exigencies '
ofthe situation" and "are not inconsistent with its other obligations under international
law". When such a situation pertains, it is imperative for the State in question to make a
formal derogation under Article 15 ECHR[43J. Moreover, in case of such derogation, the
third paragraph ofArticle 15 requires that the State concerned keep the Secretary General
ofthe Council of Europe fully informed of the measures that it has taken and the reasons
therefore.

D

D

73. Article 4(1) of the International Covenant on Civil and Political Rights is expressed in
tenns very similar to ~ose of article, i 5(1)[44].
'
.
74. In its Resolution 1271, adopted on 24 January 2002, the Parliamentary Assembly of
the Council of Europe resolved (para 9) that: "In their fight against terrorism, Council of
Europe members should not provide for any derogations to the European Convention on
Human Rights". It also called on aU member States (para 12) to "refrain'from using
Article 15 to limit the rights ~d liberties guaranteed under its Article 5."

'

75. In its 2002 Guidelines on human rights and the fight against terrorism, the Committee
of Ministers ofthe Council of Europe reiterated that member States "may never, and
whatever the acts of the person suspected of terrorist activities, or convicted of such
activities, derogate from the right to life as guaranteed by these international instruments,
from the prohibition against torture or inhuman or degrading treatment or punislunent,
from the principle of legality of sentences and of measures, nor from the ban on the
retrospective effect of criminallaw."[45]
76. In its General Comment no 29/2001 on Article 4 of the International Covenant on
Civil and Political Rights, the UN Human Rights Committee observed (in para 3) that

UNCLASSIFIED
L0217

UNCLASSIFIED

"On a number ofoccasions the' Committee has expressed its concern over States parties
that appear to have derogated from rights protected by the Covenant, or whose domestic
law appears to allow such derogation, in situations not covered by arti~le·4."
77. In the era o:("global terrorism" it has been put. to debate whether fundamental human
rights as they are discussed in this opinion or the extent ofpossible derogations from
them should be reinterpreted. Recent decisions by several domestic courts in Europe and
beyond, however~ have confIrmed that the existQ1g rights 8!!d standards are, in principle, r-----_
5
appropriate for the current situation of the fight against global terror.f461 It is also the
Commiss1'Qii1S"opunon that no such remterpretation is necessary or warranted.

c. International Humanitarian law
78. At present, International Humanitarian Law has only limited relevance for the
question ofthe law applicable to extraordinary transfers ofprisoners and secret detention
on the territory or through the airspace of member States ofthe Council ofEurope.
International Humanitarian Law applies during "armed conflict" and it distinguishes
between international and nonwinternational anned conflicts. "Anned conflict" in the
sense of International Humanitarian Law refers to protracted armed violence between
States or between governmental authorities and/or organised armed groups within a State;,
[47] "State practice indicates that banditry, criminal activity, riots, sporadic outbreaks of'
violence and acts of terrorism do not amount to an armed conflict."r481 This means, for
example, that the organised hostilities in Afghanistan before and after 2001 have been an
"armed conflict" which was at first a non-international anned conflict, and later became :
~------, an international anned conflict after the involvement of US troops. On the other hapg.
sporadic bombin s and other violent acts which terrorist networks e e
'n different
places around the globe an
e ensumg counter-terrorism measures, even if th~y are
occasiomUIy undertaken by mlli~ unIts, cannot be said to amount to an "armed
'----' conflict" in the sense that the~ applieabiln:y of International Humanitarian
Law,
.
r

79, The Venice Commission considers that counter-terrorist measures which are part of
what has sometim<;:s been called "war on terror" are not part of an "~ed conflict" in the
sense of making the regime ofInternational Humanitarian Law applicable to them. It
considers that further reflection is necessary to consider whether any additional
instrument may be needed m the future to meet or anti~ipate the novel threats tointernational peace and security.[491
..
.
80. International Humanitarian Law thus only applies to such transports of prisoners
through the territory and/or airspace of the member States of the Council of Europe if
such prisoners have been arrested/captured in the context of an "anned conflict" as
explained above. This would be the case, fOF example, if a prisoner was captured in an
area. of Afghanistan in which organized fighting takes place at the time of the arrest In
this case his or her transfer or detention would be cO\lered by International Humanitarian
Law irrespective of where he or she is transferred to or detained in Europe. If, on the
other hand, persons are transported 'or detained who have been arrested in the territory of
a State where no anned conflict takes place, or in an area in which no anned conflict
takes place, International Humanitarian Law does not apply. In such cases human rights

UNCLASSIFIED
L0218

UNCLASSIFIED

law fully applies.

81. Even in those limited cases in which Inte!l)ational HUmanitarian Law applies (in the

conte~t of extraordinary transport ofprisoners) this body oflaw does not aJiply

D

exclusively. As a general rule, human rights law applies at all times, whether in times of
pea:ce;;concurrently in situations ofarmed conflict, to all persons subject to a State's
authority and control ('~urisdiction"). However, once an armed conflict has begun, human
,
rights law is nonnally partly superseded by InternationaI Humanitarian Law which'
e avlOur 0 parties to an armed conflict. For
contains ru es s Cl1ca re atm
example, human rights law does not spec!
y take account of the regime of belligerent
.occupation. This means that the rules ofthe Hague Regulations and the'Fourth Gen,eva
Convention of 1949 largely serve as lex specialis. However, as the Commission has
previously pointed out[50], human rights law's non~derogable rules and those rules which
have not been derogated from in accordance with the derogation mechanism provided for
under the relevant treaty instrument are also applicable in situations of armed conflict.

B5

.82. Under the 1949 Geneva Conventions, persons who are arrested by a power in the
course of an international armed conflict are protected either as prisoners of war
(hereinafter "POW") (Article 4 GCIII) or as other "protected persons" (all persons, in
particular civilians, who are not nationals of the detaining Power or are not protected by
other Conventions, Article 4 GCIV). The plain wording of Article 4 (1) and (4) GC IV
makes it clear that there should be no category ofpersons that would remain unprotected.
As the Commission has pointe<f.OUtbefore. even those persons who do not fulfil the
nationalitY requirementS of Article 4 GC IV are prote~ted by customary international
humanitarian law, as' it has been given expression in Article 75 of the First Additional
Protocol of 1977 to the Geneva Conventions.
83. Persons who are suspected to be members'of an international terrorist network. such
as Al-Qaeda, and who have been arrested in connection with an armed conflict. will fall
either into the category of other "protected persons" or into the category of POWs. ~.
84. As far as the Fourth Geneva Convention, the First Additional Protocol and customaryL---------l
international humanitarian law. apply, all protected persons, including terrorist suspects;
must be treated according. to the rules laid down in Articles 27~78 GCIV and the
minimum requirements ofArticle 75 of the First Additional Protocol. This has been
confinned in recent years by national courts.W]
.
85. In the case that suspected members of international terrorist networks qualifY as
paws, their transfer would be regulated by the Third Geneva Convention (see in
particular Articles 12 and 46~48).

D. General principles of civil aviation
86. International air law has a codified framework in the Convention on International
Civil Aviation (commonly referred to as the "Chicago Convention"), signed in Chicago
on 7 December 1944.
87. The Chicago Convention sets out in Article 1 the principle that every State has
complete and exclusive sovereignty over the airspace above its territory, that is to say

UNCLASSIFIED
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UNCLASSIFIED

above the bmd areas and territorial waters adjacent thereto.
88. Article 4 of the Chicago Convention provides ,that: "Each contracting State agrees
not to use civil aviationfor any purpose inconsistent with the aims ofthis Convention '.'.
89. The Chica@.Conventi.gn sets out the regime for civil aircraft and civil,aviation. '
According to Article 3 (a)~ such regime does not apply to State aircr~.
90. Under the Convention, aircraft "used in military, customs and police services" are
deemed to be state aircraft (Article 3(b». This presumption, however, is not irre~uttable
[52]. Moreover, aircraft engaged in other state activities such as coast guard and search
and're~cue could also'be either state aircraft or civil aircraft in the sense ofthe
Convention.J1l1
r------,

L--

--'

91. It has generally been admitted[54] that, in case of doubt, the status ofan airplane as
"civil aircraft" or "state aircraft" will be detennined by the function it actually perfonns at
a given time[55]. As a general rule, "aircraft are recognised as state aircraft when they are
under the control of the State and used exclusively by the State for state intended
purposes"[56]. Accordingly~ the same airplane can be considered to be "civil aircraft" and
"state aircraft" on' different occasions.

B5

I

92. ~ciafflhat are not engaged in scheduled international air services ofa State
are entitled to make flights into or in transit nonstop across the territory of another State party and to make stops for non-traffic purposes
~out the necessity of obtaining prior permission and subject to the right ofthe State
flown over to require landing. The authorities ofeach State PartY have the right, without
unreasonable delay, to search aircraft ofthe other State party on landing or departure~ and
to inspect the certificates and other documents prescribed by the Chicago Convention
(Article 16).
p~cagoConventionfS71

..--------, 93. State aircraft do not enjoy ~e overflight rights of civil aircraft. According to Article 3
(c), state aircraft are not pennitted to fly over or land in foreign sovereign territory
otherwise than with express authorisation of the State concerned, and in hannony with the
terms of such authorisation. Such authorisation must be given by special agreement "or
otherwise"; the practice of States indicates that the preferred form is a bilateral or
L-----,._ _---.J multilateral agreement between the States concerned, valid for a given period of time. one1 - year for example, or general pernrissions, or "ad hoc" permissions properly obtained
through the diplomatic channels. In the latter case, the diplomatic notes are to be
submitted to the competent authorities - to the Ministry of Foreign Affairs~ for ~xample prior to the operation ofthe flight and usually contain inter alia the name ofthe foreign
.
erator, the type of aircraft and its registration and identification, the proposed flight
rog (i
I
oint 0 e arture ou .
~
pom 0 en , t e ate
and tim~ of arrival. the place of ep1barkation or lsem ar tion a roa 0 passengers or
freigllt), the pUT£ose of the Jlight (number of passengers and their names).

--'

94. If "state aircraft" enter the foreign sovereign air space without a proper authorisation,
they maybe:
- intercepted for purposes of identifi~ation;

UNCLASSIFIED
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UNCLASSIFIED

- directed to leave the violated air space;
- directed to land for the purpose of further investigation/prosecution;
- forced to land for further investigatioi1lprosecution[581.

E5

95. Under customary internationallaw~ state aircraft enjoy immuniJY from foreign
jurisdiction jn respect of search and inspection. Accordingly, they cannot be boarded,
.searched or inspected by foreign authorities, including host State's authorities, without
the captain's consent. Howeyer, because state aircraft need authorisation to enter another '--------'
State's airspace, the extent oftheir immunity IS condItIoned on such an authorisation
pursuant to ~~lJ~lQLt:he=eliicage COnvefiI10nlMl·
>

96. A mere operational air traffic control clearance for the flight is not sufficient to satisfY
the requirement for pennission under Article 3 (c)ffil1 unless this corresponds to an
accepted practice.
'
97. Article 3bis para. b) of the Chicago Convention provides that:

(E}very State, in the exercise ofits sovereignty, is entitled to require the landing at some
designated airport ofa civil aircraft flying above its territory without authority or if there·
are reasonable grounds to conclude that it is being usedfor any purpose inconsistent
with the aims ofthis Convention; it may also give such aircraft any other instructions to
put an end to such violations. For this purpose, the contracting States may resort to any
appropriate means consistent with relevant rules ofinternational law, including the
relevant provisions ofthis Convention, specificallyparagraph a) ofthis Articler62l.
Each contracting State agrees to publish its regulations in force regarding the
interception ofcivil aircraft.
98. The flag State of tile violating aircraft is internationally responsible for the jnfraction;
the consequences of such responsibility would impact on the overall relations of the
States concerned and can range from the duty to apologise, a promise to penalise the
individuals responsible, a promise not to repeat the infraction and so on, to more severe
sanctions.
99. Pursuant to Article 54 of the Chicago Convention, any action which may be
considered as an infraction, breach, violation or infringement ofthe Convention is
potentially subject to action by the Council of the International Civil Aviation
Organisation (lCAO) under Article 54 G) or (k). For example, a contracting State which
by its action contravenes the principle in Article 1 that every State has complete and
exclusive sovereignty over the airspace above its territory, can be considered committing
an infraction ofthe Convention. A similar conclusion could be drawn in respect of a State
which by its action disregards the scope of ''territory'' given in ArtiCle 2; or whose
regulations for State aircraft.do not show «due regard for the safety of navigation of civil
aircraft" (Article 3 (d)); or w~ich uses weapons against civil aircraft in flight contrary to
Article 3 bis; or which uses civil aviation for any purpose inconsistent ,with the aims of
the Chicago Convention (Article 4). Infractions may be brought before the Council by a
Contracting State or a group of Contracting States.

UNCLASSIFIED
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'UNCLASSIFIED

100. As long as an airplane is in the air and not on the ground, persons on board are
subject to the concurrent jurisdiction of both 'the national State ofthe airplane and the
territorial State[63]. In this' context, it should be noted that Article 4 ofthe Convention on
Offences and Certain other Acts Committed on Board Aircraft (the Tokyo Convention)
[64] , to which practically all Council of Europe member States are party, provides that:
"A Contracting State which is not the State ofregistration may not interfere with an
aircraft in flight in order to exercise its criminaljurisdiction over an offimce committed
on board except in the following cases:
(a) the offence ha~n the territory ofsuch State;
(b) the offence has been committed by or against a national or permanent resident of
such State;
,
(c) the offence is against the security ofsuch State;
(d) the offence consists ofa breach ofany roles or regulations'relating to the flight or
manoeuvre ofaircraft in force in such State;
,
,.---

(e) the exercise ofjurisdiction is necessary to ensure the observance ofany obligation of'
---, such State under a multilateral international agreement. "

101. This provision does not limit the jurisdiction ofthe territorial State but only the
exercise of its right to interfere with an aircraft in flight. In the..fu'st place, serious
offences of abduction, torture etc. certainly have "effect" on the territorial state. Where
the condItions of a prisoner on a plane do not in iliemselves constitute' inhum~ or
degrading treatment, all acts involved in transferring by air a prisoner to a place where he
or she runs a real risk of being tortured may not necessarily be criminal offences in the
territorial State. 'This will depend upon how the relevant offences and inchoate offences
(preparation, conspiracy etc.) are fonnulated in the law in the territorial State (e.g.
whether the acts in question constitute a continuing offence of abduction) and that State's
'--------' rules on extraterritorial crime, in particular, whether the deliberate handing over of a
person to extraterritorial torture is an offence. It should be stressed however that the
obligations of a Council of Europe member State to ensure protection of human rights
(see above, paras. 62-67, and below para. 146) are not limited simply to enforcing its
criminal law. Thus, it is not decisive that, in a particular case, a territorial State may not,
in fact, make all acts involved in transfer punishable, or exercise jurisdiction over these.
In addition, according to subparagraph (e) ofArticle 4 of the Tokyo Convention, the
limitation of the exercise of the right of the territorial State to interfere with an aircraft in
flight does not apply when "the exercise ofjurisdiction is necessary, to ensure the observance of any obligation of such State under a multilateral il1temational agreement", such
as the European Convention of Human Rights. Therefore, if the positive obligations,
arising under the ECHR require a member State of the Council of Europe to investigate
possible violations of human rights committed in an aircraft in flight through its airspace,
this member State is not barred by the Tokyo Convention to interfere with this aircraft in
\ flight.

102. The question arises in this context of what would be the status of an airplane

UNCLASSIFIED
L0222

UNCLASSIFIED

registered in .the flag State as civil aircraft but carrying out "State functions" (such as
special missions for the transport of prisoners) which' entered the airspace of another State
without seeking a specific authorisation or without following the applicable procedures
for State aircraft.
.

D

B5

103. In the opinion of the Venice Commission, state aircraft can only claim immunity
inasmuch as they make their state function known to the territorial State t1m:mgh the
appropriate channels. If the public purpose was not declared in order to circumvent the
ermission(s). then the State will be estopped
,_J.
requirement ofobtaining the neces
fro!!l clmmmg tate arrcraft statusfQ2 and the airplane Will be deemed to e CIVl and ~...."..... ,
~lling Within the scope ofapplication of the Chicago Convention, mcludmg its
Article 16 providing for the territorial State's right to search and inspection. The·
territorial State could request the airplane to land and could proceed to search and
inspection and take the necessary measures to put an end to possible viqlations it might
identi:fy[66J. In addition, the flag State would face international responsibility for the
breach of Article 4 ofthe Chicago Convention and of customary international law.
104. The relations between air law and human rights law will be analysed below (see
paras 144·152).

E. Military bases
105. The lawfulness of the presence of the anned forces of one State on the territory of
another State in peacetime is contingent on the consent of the host State. The initial .
decision to admit the force may take the form ofa bilateral or multilateral treaty, often
defence agreements. There' follows a decision by the receiving State.granting the use of
facilities on its soil) which is nonnally done through a further agreement.

D

106. A State does not abandon its sovereignty when it consents to the presence of foreign
~oices on its territory. It guarantees the enjoyment ofthe privilege of user ofits
territory accorded to the sending State; it retains however the right to regulate this
privilege within the framework ofthe appl~cable treaties and agreements. It follows that
the sending State acquires vanous powers pertaining to the operation of its defence forces
on a territory that remains subject to the sovereignty of the host State. The sending State
may lawfully claim in or over the territory of the receiving State, only those rights and
powers that are connected directly with the establishment and operation of, and access to,
the sites at which the foreign forces and installations are located. The principle of
sovereignty dictates that any further rights and powers can derive only from an express
grant by the receiving States. In particular, the extent ofthe right for the receiving State to'
search a foreign military base on its territory depends on the terms of the defence
agreement or of the "Status-of-forces agreement" (SOF A)[67].
107. SOFAs between the host St~te and a State stationing military forces in the host State
define the legal status ofthe sending State's personnel and property in the territory of the
host State. They are usually an integral part of the overall military bases agreements that
allow the sending State's military forces to operate within the host State[68].
108. Foreign anned forces whose admission has been consented to by the receiving State
are, as a rule, not subject to the nonnal immigration controls and entry formalities

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UNCLASSIFIED

applicable to foreign nationals. The NATO-SOFA agreement provides that "members of
a force shall be exempted from passport and visa regulations and immigration inspec~on
on entering or leaving the .territory of a receiving, State. They shall also be exempt from
the regulations ofthe receiving State on the registration and control of aliens"[69]. This
waiver of entry procedures is counter-balanced by the requirement for members ofthe
force, to present on demand, whetller on entry or at'any time thereafter, identification and
an individual or collective movement order certifying the status of the individual as a
member ofa force[701. The receiving State has a discretion whether to require a
movement order to be countersigned by its authorised representatives. Exemption from
entry formalities is made conditional on compliance with the fonnalities established by
the receiving State relating to the entry and departure of a force or the members thereof.
109. The sending State must have access to the, base and, where it has more than one base
on the territory ofthe same State, it must be allowed movement between them. To deny
access would amount to a derogation from the grant made by the host State. It is therefore
common for military base agreements to authorise the sending State to have access to its
forces and to the ports or airfields which it has been accorded in the host State. This
authorisation is essential, as in relation to public vessels and; aircraft there is no right of
access under customary intemationallaw. It is, however, often the practice in bilateral
treaties for entry to the ports ofthe receiving State to be subject to "appropriate
....-------.notification under normal conditions" made to the authorities of the latterI11l.
110. The sending State does not benefit from an unrestricted freedom: of movement
within, and overflight of, the receiving State, unless such rights are expressly granted in a
base agreement. In any case, the national and intemationallaw that is applicable to
military bases cannot, and does not claim to, diminish the obligations and-responsibilities
,\g.fthe member States of the Council of Europe under human rights treaties.
'

B5

'------'F. Article V of the NATO TreatyJ721
Ill. Article V is the core clause of the Washington Treaty, NATO's founding charter. It
states that an armed attack against one Ally shall be considered an attack against them all.
In response to an invocation of Article 5, each Ally determines, in consultation with other
Allies, how it can best contribute to any action deemed necessary to restore and maintain
the security of the North Atlantic area, including by '!he use of armed force.

112. Article V was first invoked on 12 September 2001 immediately following the II
September terrorist attacks against the United States. The invocation was initially
provisional, pending detennination that the attacks were directed from abroad: This was
cohfirmed on 2 October 2001, after US officials presented findings on investigations into
the attacks to the North Atlantic Council, concluding that the AJ~Qaeda terrorist network
was responsible.
113. On 4 October 2001, the Allies agreed on a series of measures to assist the US-led
campaign against Al~Qaeda and related terrorismIZTI. These include enhanced
, intelligence sharing and cooperation, blanket over~fli hi clearances in accordance with
the necessary air traffic arran ements and national procedures, and access to ports an
air lelds or US and other Allied craft for operations against terrorism.

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UNCLASSIFIED

114. In application of this agreement, certain NATO'IDember-States granted US (and
NATO member States') aircraft either blanket over-flight clearances for certain time,,~--_..:..----,
periods, or overflight rights upon request[74].

B5

115. Article V ofthe North Atl~tic Treaty does not contain an obligation for member
States ofthe Council of Europe to allow irregular transfers of prisoners or to grant bl "'I--:et:-----......J
overflight rights, for the purposes of fighting against terrorism. That treaty provision at
most contains an obligation to take measures, including cooperation and consent, into
consideration; but leaves any decision as to concrete measures to the appreciation Of the
State concerned of the necessity of such measures in order to restore and maintain
security. In addition, neither Article 5 ofthe North Atlantic Treaty nor any Agreements in
execution thereofcan, or cl~ to,' diminish the obligations and responsibilities of
member States ofthe Council of Europe under human rights treaties.

SECTION II - THE INTERNATIONAL LEGAL
OBLIGATIONS OF COUNCIL OF EUROPE
MEMBER STATES
A. Council of Europe member States' obligations in ~~spect of arrests by foreign
authorities on their territory
~
"--

...

116. A State party to the European Convention on Human Rights is presumed to exercise
its jurisdiction over its whole territory. Any arrest ota person by foreign authorities on
the territory ofa Council ofEurope member State without the agreement of this member
State is a violation of its sovereignty and is therefore contrary to international law. In '
addition, the now defunct European Commission of Human Rights has stated that "an
arrest made by the authorities of one State on the territory of another State, without the
prior consent ofthe State concerned, does not only involve the State responsibility vis-a.
vis the other State. but also affects that person's individual right to security Wlder ArticLe
5 § l"·illl '

--7'"

"

117. The European Court of Hwmm Rights has clearly expressed how the responsibility
of a COWlcil of Europe member State is engaged in relation to the arrest of an individual
on its territory by foreign authorities: irrespective of whether the arrest amounts to a
.--------.'iolation of the law of the State in which the suspect has been arrested, the responsibility
pf the host State is engaged unless it can be proved that the authorities of the State to
Wliiph the applicant has been transferred have acted extra-territorill1Iy and ,without
~onsent, and consequently in a manner that is inconsistent With the sovereIgntY oIthe host

~t76].

, .

,

18. Any fonn of involvement of the Council of Europe member State or receipt of
'---------tnfonnation prior to the arrest taking place entails responsibility under Articles 1 and 5
ECHR (and possibly Article 3 in respect of the modalities of the arrest). A State must
thus prevent the arrest from taking place, unless the arrest is effected by the foreign
authorities in the exercise of their jurisdiction under the tenns of an applicable SOFA (see
footnote 68 above).

UNCLASSIFIED
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UNCLASSIFIED

119. The responsibility of the Council ofEurope member 'States is engaged 'also in the
case that some section of its public authorities (police, security forces etc.) has co~perated with the foreign authorities or has not prevented an arrest without government
knowledge. This situation raises the question of governmental control over the
securi:tY/police services, and possibly, if the applicable national law so foresees, of
parliamentary control over the government.
.

,

120. Different European States exercise different systems for political insi t mto and
controlover;llieoperations 0 e secun an In e 1 ence servIces, depending upon
constitutional structure, historical factors etc.' Different mechanisms exist for ensuring
that particularly sensitive operations are subject to approval andlor adequate control.
Meaningful government accountability to the legislature is obviously conditioned upon
meaningful governmental control over the security and intelligence services[77]. Where
the law provides for governmental control, but this control does not exist in practice, the
security and intelligence services risk becoming a "State within' a State~·. Where, on the
other hand, the law provides for a degree of distance between government ministers and
officials and the day-to-day operations of the security and intelligence services, but
government ministers in fact exercise influence or even control over these operations,
then the phenomenon of "deniability" can arise. In such a case, the exercise ofpower is
concealed, and there is no proper accountability. The Statute of the Council of Europe
and the ECHR require respect for the rule of law which in turn requires accountability for
all exercises ofpublic power. Independently of how a State chooses to regulate political
control over security and intelligence agencies, in any case effective oversight and control
mechanisms must exist to avoid these two problems.[781

B. Council of Europe member States' obligations in respect of alleged
secret detention. ftlcilities
121. The term "secrecy" can have different meanings. In the context of the present
opinion, the problematic aspect of the secrecy'of detention lies in the first place in the
im act which such secrec has on the prisoner's defence rights under Articles 5[79] and 6
CHR. In addition, prolonged secret detention may impmge on Arti,? e 3I!illl and on other
aspects of Article 6 ECHR.
122. For a State to provide facilities to another State to conduct voluntary interviews with
suspects on its territory is, in principle, not in violation ofintemationallaw. On the
contrary, it is a feature ofmost modem Mutual Assistance Treaties. It depends upon the
territorial States' constitutional and administrative rules on the exercise of public power
whether this can go so far ~s involuntary interrogation. Some States will not allow any but
their own officials to exercise public power on their territory. Others make exceptions by
treaty rulesOOl.

B5

123. The territorial State retains its full jurisdiction within the meaning of Article 1 '
ECHR over any place on its territory where such interviews take place, including any ad
hoc detention facilities: : that State is therefore responsible for any infringement of the
ECHR in relation to any suspecrfreatecl In VIOlatIon of ;:gtlcles 3 and 5, e.g:-anyprisoners
who may be1ield incomunicado there. The modalities of the interrogation and detention,

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UNCLASSIFIED

apd of treatment given, need to comply with the standards ofthe European Convention on
Human Rights.
.

,

124. Incomunicado detentiop, that j~ detention without the possibility of contacting one's
lawyer.and ofapplying to a court, is.clearly not "in accordance with a proced.ur~
~;cribed by law:' of any of the member States of the Council ofEurope, if alone
because the detention is not subject to judicial review. For the detainee, it is not possible
to exercise his entitlement to habeas corpus guaranteed by Article 5, paragraph 4. The
unlike possibility that such a detention is "in accordance with a procedure prescribed by
law" under the law of the foreign State by whose authorities the detention was ordered
and executed, is irrelevant fQr the iss~e of the responsibility under the Emopean
Convention on Human Rights ofthe State on whose territory it takes place.

B5

125. If and in so far'as incomunicado detention takes place, is made possible or is
continued on the territory of a member State of the Council ofEurope, in view ofits
secret character that detention is by definition in violation of the European Convention on
Human Rights and the applicable domestic law of that State.
126. Active and passive co-operation by a Council of Europe member State in imposing
and executing secret detentions engages its responsibility under the European Convention
on Human Rights. The European Court ofHwnan Rights has ruled that "the acquiescence.
or connivance ofthe authorities of a Contracting State in the a~ts ofprivate individuals
which violate the Convention rights of other individuals within its jurisdiction may
engage the State's responsibility under the Convention"[82]. This is even more true in
respect of acts of agents of foreign States.
127. While no such responsibility applies ifthe detention is carried out by foreign
authorities without the territorial State actufilly knowing it, the terriWiaJ State must take
effective measures to safe ard a ronst the risk of disa pearance and must conduct a
prompt and effective investigation into a substantiated claim at a person has been taken
into unacknowledged custody.
128. The possible obligation by a Council of Europe member State under bilateral or
multilateral treaties to co-operate in prosecution measures'does not affect or diminish this
State's obligation not to allow or contribute to secret detention on its territory. '
129. As the European Court of Human Rights has pointed outllQl, the opinion ofthe
State under whose authority the detention is decided and executed concerning the issue of
whether the detention is in violation of fundamental rights is not conclusive for the
question of whether cooperation engages responsibility of a member State of the Council
of Europe under the European Convention on Human Rights; only the relevant provisions
~-----, of the latter Convention, as interpreted by the European Court of Human Rights, are
decisive. This means, for instance, that the opinion which has been put fOlWard in certain
'quarters with respect to the US Government that "cruel and unusual punishment", if
applied outside US territory, does not violate the US Constitution, is of no relevance
whatsoever' for the question of responsibility of member States under the European
Convention on Human Rights, It also means that the individual opinion of specific
Governments, or of certain public persons, about possible limits to the absolute character

UNCLASSIFIED
L0227

UNCLASSIFIED

of the scope ofthe prohibition oftorture are not relevant either. In addition to the
interpretation given by the European Court of Human Rights concerning the absolute .
character ofthe prohibition oftorture, Article 2, paragraph 2, ofthe UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
expressly states that there is no room whatsoever and under any circumstances to justify
torture
'
,130. If a State is informed or has reasonable grounds to suspect that any persons are he14
, ~'ncomunicadO at foreign military bases on its territory, despite its timitedjurisdiction over
foreign military bases, its responsibility under the European Convention on Human
Rights is still engaged, unless it takes all measures which are within its power in order for
.s irregular situation to e n d . '
'
~-----r 131. As

a rule, a State cannot search foreign military bases on its 'territory unleS!;! this is
allowed under the relevant treaties or unless the host.State is authori~ed by the sending
State to do so. However, the right to detain non-military personnel does not fall under the
ordinary rights and powers that are connected directly with the establishment and
operation ofthe sites at which the foreign forces and installations are located (see para.
106 above), unless the site falls under the jurisdiction of the sending State under the
applicable SOFA, such as the NATO-S,OFA (see footnote 68 above).

B5

132. The host State is therefore entitled and even obliged to prevent, and react to s\!ch .
,:buse of its territory~ It could exercise its powers in respect of registration and control of
aliens, and demand identification and movement orders of those present on the military
'-------'base in question. Access to such military baseSt asswning that it had been freely granted
under the military base agreement. would require notification under normal conditions. In
addition. appropriate diplomatic channels can be used in order to protest against such
practice.
133. The case'mi t arise that some section ofthe ublic authorities ofthe Council of
Europe member tate (police, security forces etc.) is inf~rme an tolerates, or mils to
prevent or even co-o erates in t e maintenance of secret detentions without government
kn wedge. While this situation raises the already mentioned constitutional issue 0
cOIltrol over security forces, the State remains responsible Under the European
Convention on Human Rights.
134. States which have ratified the European Convention for the Prevention of Torture
have the obligation to co-operate with the Committee for the Prevention of Torture and to
provide it with a list ofall the detention centres which are present on their territory. CPT
must have access to all and any of these detention centres. Failure by a State to inform
CPT ofany detention facility can be seen as a lack of co-operation within the meaning of
Article 3 ECPT{841. which, if not clarified appropriately, can result in procedures towards
a public statement under Art 10(2)Iill.

135. As concerns internatioJ.1a1 humanitarian law, the Geneva Conventions (Articles 126
ofGCIII and 143 GCIV) grant the International Committee of the Red Cross "pennission
to go to all places where prisoners of war or protected persons may be, particularly to
, places of internment, imprisonment and labour", and "access to all premises occupied by"

UNCLASSIFIED
L0228

UNCLASSIFIED

them~ including "the places of departure~ passage and arrival ofprisoners who are being
transferred". Responsibility could arise in this respect too.
.

.

136. Insofar as detention can be "secret" vis-A-vis the national authoritiest the
Commission considers that a State is exempted from responsibility only if and as long as
it does not have any knowledge of a deten,tion carried out by foreign agents in breach of
its. territorial sovereignty. However, if any branch of the State is involved in or informed
about the detentiont irrespective oftheir acting ultra vires, the responsibility ofthe State·
as a subject of international law is engaged (see paras. 38-43 above).

C. Council of Europe member States' obligations in respect of inte'rstate transfers of prisoners
137. ere are only four Ie al ways oftransferring a prisoner to foreign authorities~
deportation, extradition, transit and transfers of sentenced persons or the·purpose oftheir
serving the sentence in their COtmtry of origin.
138. Extradition and deportation proceedings must be specified by the applicable law, and
the prisoners must be given access to the competent authorities. In addjtion, extradition
and deportation proceedings cannot be carried out where substantial grounds have been
shown for believing that the person in question, if expelled, would face a real risk of
being subjected to treatment contrary to Article 3 ofthe ECHR and ofthe UN Convention
against Torture in the receiving COtmtry. In these circumstances, Article 3 implies the
obligation not to expel the person in que~tion to such a country.
139. In this context, it is worth underlining that Council of Europe member States are
tmder an obligation to prevent prisoners' exposure 10 the risk oftorture: the violation does
not depend on whether the prisoner is eventually subjected to torture.
140. The assessment of the reality of the risk must pe carried out very rigorously. The risk
assessment will depend upon the circumstances, meaning both the rights which risk being
violated and the situation in the receiving State. T@:.iiplomatic assurances which m:.e
usually proti,ded by the requesting State in order to exclude human rights breaches in its
tffiitory after the extradition or deportation is carried out may be appro riate as concerns
risks or-application of the death ,t.?enalJ,YI861 or for aIr tna VIO ations, because such rlli<s
C@ in most instances be moni~red satisfactorily. On the other hand, as regards the risk of
torture, monitoring is impracticable in the vast majority of conceivable cases, especially
bearing in mind the fact that, even after conviction in a criminal case, a State may torture
a prisoner for the purpose of obtaining· information. At the same time, it is impracticable
to have a "life-long" responsibility for people who are removed out of the country.
141. This situation raises the question of the value of diplomatic assurances[87]. In the
Venice Commission's ·view, the acceptance of such assurances is in pnnciple the
expression of the necessary good faith and mutual trust between friendly States, although,
as far as assurances may be regarded as acceptable in principle (see para. 142 below), the
~enns of the diplomatic assurances need to be unequivocal (for instance, a reference to
"toi'ture"':""or to "uihutflan or degrading treatment" should be interpreted within the
meaning given to these tenus by the ECtHR, the CAT and the HR Committee) and need

UNCLASSIFIED
L0229

UNCLASSIFIED

to reflect the scope pf the obligation by which the State which issues them is legally
bound.
142. However, this genenil mutual trust must not prevail over the accurate examination of
each specific situation, particularly ifthere are precedents or even patterns ofviolation of
previously accepted assurances~. For example, an important difference between the .
situation in the Mamatkulov case (see para. 71 above) and later ones is that recent
experience has shown that the risk oftorture seems to be greater .than what was known
before, despite assurances. In the Commission's view, under these circumstances the
room for accepting guarantees against torture is reduced significantly. Where there is
substantial evidence that a country practices or permits torture in respect of certain
categories of prisoners, guarantees may not satisfactorily reduce this risk in cases of
requests for extradition of prisoners belonging to those categories.

O· .

B5

143. The requirement of not exposing any prisoner to the real risk ofill·trea1ment also
applies in respect of the tran~it of prisoners through the territory of Council of Europe
member States: member States should thetefore refuse to allow transit of prisoners in
-circumstances where there is such a risk. ~
---------~-

144: The situation may arise that a Council of Europe member State has serious reasons
to believe that the mission of an airplane crossing its airspace is to carry prisoners with
the intention oftransferring them to countries where they would face ill·treatment.
...--

'--

145. If such an airplane does not require landing, as long as the plane is in the air. all
---, persons on board are subject to the jurisdiction of both the flag State and the territorial
State. In the Commission's view, Council of Europe member States' responsibility under
the European Convention on Human Rights is engaged if they do not take the preventive
measures which are within their powers. In addition, their responsibility for aiding
another State to commit an unlawful act would be at issue. It follows. in the
--' Commission's view, that the territorial State is entitled to, and must take
possible
measures in order to prevent the commission ofhuman rights violations in its territory,
including in its air space.

an

146. There are obviously practical difficulties involved in securing the effective
enjoyment of Convention rights in aircraft transiting a Council of Europe member State's
airspace or military base for foreign forces on its territory. Without prejudice to the wider
question ofhow such difficulties can affect the scope of a State's obligations to secure
generally the rights under the Convention, the case-law of the European Court of Human
. Rights makes it clear that the State's duty to secure the most elementaIy rights at issue in
the present case (right to security of person; freedom from torture and right to life)
continues to apply, regard~ess of acquiescence or connivance[89].

~---_ ......

. 147. The territorial State possesses a different course of action in respect of the suspect
airplane, depending on its status.
.
148. lfthe state airplane in question has presented itselfas ifit were a civil plane, that is
to say it has not duly sought prior authorisation pursuant to Article 3 c) of the Chicago
Convention, it is in breach of the Chicago Convention; the territorial State may therefore
require landing. The airplane having failed to declare its State functions, it will not be

UNCLASSIFIED
L0230

I

UNCLASSIFIED

entitled to claim State aircraft status and subsequently not be entitled to immunity: the
territorial State will therefore be entitled to search the plane pursuant to Article 16 of the .
Chicago Convention and take all necessary measures to secure human rights. In addition,
it will be entitled to .prote~ through appropriate diplomatic channels.
35

. 149. If the plane has presented itseIfas a State plane and has obtained overflight
p~pnisslOn wl'fhout however dISci sina its mission, the territorial State can contend that
the ag tate has violated its international obligations. The flag State could thus face
international responsibility. The airplane however will, in principle, be entitled to
immunity according to general international law and to the applicable treaties: the
terrltOfThl State will therefore be unable to search the plane, unless the captain consents.

150. However, the territorial State may refuse further overflight clearances in favour of
the flag State or impose, as a condition therefore, a duty to submit to 'searches. Ifthe
overflight permission derives from a bilateral treaty or a SOFA or a military base
agreement, the terms of such treaty might be questioned ifand to the extent that they do
not allow for any control in order to ensure respect for human rights, or their abuse might
be advanced. In this respect, the Venice Commission recalls that the legal framework
co.nceming foreign military bases on the territory of Council of Europe member States
.
must enable the latter to exercise sufficient powers to fulfil their human rights

D

~~.

.

..

'

151. While mutual trust and economic and military co-operation amongst friendly States
need to be encouraged, in granting foreign state aircraft authorisation for overflight,
Council of Europe member States must secure respect for their human rights obligations..
This means that they may have to consider whether 1t is necessary to insert new clauses,
including the right to search, as a condition for diplomatic clearances in favour of State
planes carrying prisoners. If there are reasonable grounds to believe that, in certain .
~ategories of cases, the human rights of certain passengers risk being violated, States
must indeed make overflight permission conditional upon respect ofexpress human rights
clauses. Compliance with th~urel? for-ot5fcili1iiig dIplomatic clea.rnttce'"ffittSt be
striCiIYmonitored; requests for" overflight authorisation should provide sufficient
information as to aliow effective monitoring (for example, the identity and status
(voluntary or involuntary passenger) of all persons on board and the destination of the
flight as well as the fin estination ofeach passenger). Whenever necessary, the right to .
sea:ch civil planes ust exercised.
~

D

.

152. With a view to discouraging repetition of abuse, any violations of civil aviation
principles in relation to irregular transport of prisoners should be denounced, and brought
to the attention of the competent authorities and eventually ofthe public. Council of
EUrope member States could bring possible breaches ofthe Chicago Convention before
the Council of the International Civil Aviation Organisation pursuant to Article 54 of the
Chicago Convention.
.

D

153. As regards the treaty obligations of Council of Europe member States, the
Commission considers that there is no international obligation for them to allow Lrregular
transfers of prisoners to or to grant unconditional overflight rights, for the purposes 01
fighting terrorism. In the Commission's opinion, therefore, States must interpret and

UNCLASSIFIED.
L0231

UNCLASSIFIED

perform their treaty obligations, including those deriving from the NAT() treaty and from
military base agreements and SOPAs, ~here these are applicable, in a manner compatible
with their human rights obligations. As regards notably the NATO treaty, the
Commission stresses that this principle is expressed in Article 7 according to which "[t]
his Treaty does not affect, and shall not be interpreted as af(ecting in any ~ay the rights
and obligations under the Charter [ofthe United. Nations] ofthe Parties which are
members of the United Nations." Even ifNATO member states have undertaken .
obligations concerning irregular transfer or unconditional overflight, the Commission
.recalls that ifthe breach of a treaty obligation is determined by the .need to comply with a
peremptory norm (jus cogens), it does not give rise to an internationally wrongful act. As
underlined above (para. 43), the prohibition oftorture is a peremptory nonn.

CONCLUSIONS
154. Council of~urope member States are under an obligation to fight terrorism, but in
doing so they must safeguard human righ~.
.

155. Council ofEurope member States are under an intemationallegal obligation to
secure that everyone within their jurisdiction (see para. 146 above) enjoy internationally
agreed fundamental rights, including arid notably that they are not unlawfully deprived of
their personal freedom and are not subjected to torture and inhuman and degrading
treatment, including in breach of the prohibitipn to extradite or deport where there exists
a risk oftorture or ilHreatment. 1his obligation may also be violated by acquiescence or
connivance in the conduct of foreign agents. There exists in particular a positive duty to .
investi,gate into substantiated claims ofbreaches. of fundamental rights by foreign agents,
particularly in case ofallegations oftorture or unacknowledged detention.
.

B5

156. Council of Europe member States are bound by numerous multilateral and bilateral
treaties in different fields, such as collective self·defence, international civil aviation and
military bases. The obligations arising out of these treaties do not prevent States from
complying with their human rights obligations. These treaties must be interpreted and
applied in a manner consistent with the Parties' human rights obligations. Indeed, an
implied condition of any agreement is that, in carrying it out, the States will act in
conformity with international law, in particular human rights law.
157. The Venice Commission considers that there is room to intewret and apply the
·different applicable treaties in a manner that is compatible with the principle of respect
for fundamental rights. Council of Europe member States must do so. For example, ·the
earch of a state airplane which has presented itself as a civil aircraft is allowed under the
Chicago Convention and must be effected whenever there are reasonable grounds to .
spect that the plane may be used to commit human rights breaches. The relevant interstate practice must be changed and adapted to this obligation. without however frustrating
the legitimate aims pursued by the treaties in question. Diplomatic measures may also
need to be taken.
.

~

158. To the extent that this due interpretation and application of the existing treaties in
the light of human rightS obligations is not possible, Council of Europe member States
must take all the necessary measures to renegotiate and amend the treaty provisions to

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this effect.
159. In reply to the questions put by the Legal Affairs Committee ofthe Parliamentary
Assembly ofthe Council of Europe, the Venice Commission has reached the conclusions
listed below:
As regards arrest and secret detention

I

I

B5
a) Any fonn of involvement of a Council of Europe member State or receil?t of
infonnanon prior to an arrest within its jurisdiction by foreign agents entails
.
.
accountabll1tj under Articles I and 5 ofthe European Convention on H"uman Rights (an~d-----...-J
possibly Article 3 in respect ofllie modalities ofthe arrest). A§tate must thus prevent the
arrest from taki . ace. If the arrest is effected by foreign authorities in the exercise or
elf Jurisdiction under the tenus of an applicable Status of Forces Agreement (SOFA),
the Council of Europe member State concerned may remain accountable under the
European Convention on Human Rights, as it is obliged to give priority to its jus cogens .
obligations, such as ~ey ensue from Article 3.
b) Active and passive co~opetation by a Council of Europe member State in imposing and
executing secret detentions engages its responsibility under the European Convention on
Human Rigllts. While no such responslbl1dy apphes If the detentIon IS carried out 6Y
foreign authorities without the territorial State actually knowing it, the latter must take
effective measures to safeguard against the risk of disappearance and must conduct a
prompt and effective investigation into a substantiated claim that a person has been taken
into unacknowledged cUstody.
.
c) The Council of Europe member State's responsibility is engaged also in the case where
its agents (police, security forces etc.) co~operate with the foreign authorities or do not
prevent an arrest or unacknowledged detention without government knowledge, acting
ultra vires. The Statute of the Council of Europe and the European Convention on Human
Rights require respect for the rule oflaw, which in tum requires accountability for all
form of exercise of public power. Regardless of how a State chooses to regulate political
control over security and intelligence agencies, in. any event effective oversight and
control mechanisms must exist.
d) If a State is informed or has reasonable suspicions that any persons are held
incomunlcado at foreign military bases on its territory, its responsibility under the

European Convention on Human Rights iSJm~&.ed, unless-it fiilres-an measUfes"Which are
within its power in order for this irregular situation to end.
e) Council of Europe member States which have ratified the European Convention for the
Preve~tion of Torture must inform the European Committee for the Prevention ef-Torture
of any detention facility on their territory and must allow it to access such facilities.
Imofm as InternatlOnlii humanitarian law may be applicable, States must grant the
International Committee ofthe Red Cross permission to visit these facilities.
As regards inter~state transfers of prisoners
f) There are only four legal ways for Council of Europe member States' to transfer a

UNCLASSIFIED
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UNCLASSIFIED

prisoner to foreign authorities: deportation. extradition, tninsit and transfer of sentenced
persons for the purpose of their serving the sentence in another country. E~dltiQn av.d
deportation roceedings must be defined by the applicable law, and the prisoners must be
provided appropriate leg guarantees and access to c
tent authorities. The
prohibition to extradite or deport to,a country where there exi s a risk oftorture or illtreatment must be respected.

D

B5

g) Diplomatic assurances must be ~8~Y hinging on the_!§~t!!~g_~Et!~~d_.J!1.!:!Stb~
UD.tquivocal in terms; }Vhen there is su stantiaI evidence that a country practices or
permits torture in respect of certain categories ofprisoners~ Council of Europe member
. States must refuse the assurances in cases of requests for extradition of prisoners
belonging to those categories.

h) The prohibition to transfer to a country where there exists a risk of torture or illtreatment also applies in respect of the transit of prisoners through the territory of Council
of Europe member States: they must therefore refuse to allow transit of prisoners in
circumstances where there is such a risk.

As regards overflight
i) If a Council of Europe member State has serious reasons to believe that an airplane
crossing its airspace canies prisoners with the intention of transferring them to countries
where they would face ill-treatment in violation of Article 3 of the European Convention
on Human Rights~ it must take all the necessary measures in order to prevent this from
taking place.

j) Ifthe state airpl~e in q)le~tio~ bas presented its:lfas@il ~~that is to, say ~t has
not duly sought pnor authonsation pursuant to ArtIcle 3· c) oflli:e Chicago Convention.
the territorial State must require landing and must search it. In addition. it must protest
through appropriate diplomatic channels.
---.
k) If the plane has presented itself as
pl~d has obtained overflight permission
without however disclosing its mission, the territorial State cannot search it unless the
captain consents. However, the territorial State can refuse further overflight clearances in
favour of the flag ,State or impose, as a condition therefor. the duty to submit to searches;
if the overflight pennission derives from a bilateral treaty or a Status of Forces
Agreement or a military base agreement. the terms of such a treaty should he questioned
if and to the extent that they do not allow for any control in order to ensure respect for
human rights.
.

@

.

I

1) In granting foreign state aircraft authorisation for overflight. Council of Europe
...-----j member States must secure respect for their human rights obligations. This means that
they may have to consider whether it is necessary to insert new clauses, including the
right to search, as a condition for di lomatic clearances in favour of State planes carrying
p~s.
ere are reasonable grounds to believe that, in certam categones 0 cases.
the human rights of certain passengers risk being violated, States must indeed make
overflight permission conditional upon respect of express human rights clauses.
' - - - - - - ' Compliance with the procedures for obtaining diplomatic clearance must be strictly
monitor~d; requests for overflight authorisation should provide sufficient information as

UNCLASSIFIED
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UNCLASSIFIED
to allow effective monitoring (for example, the identity and status (voluntary or
involuntary passenger) ofall persons on board and the destination ofthe flight as well as
the fInal destination of each passenger). Whenever necessary, the right to s,earch civil '
planes must be exercised.
m) With a view to discouraging repetition of abuse, any violations of civil aviation ,
principles in relation to irregular transport of prisoners should be denounced, and brought
to the attention ofthe competent authorities and eventually ofthe public. Council of
Europe member States could bring possible breaches of the Chicago Convention before
the Council of the International Civil Aviation Organisation pursuant to ArtiCle S40fthe
Chicago Convention.
n) As regards the treaty obligations of Council of Europe member States, the Commission
considers that there is no international obligation for them to allow irregular trailsfers of
prisoners or to grant unconditional overflight rights, for the purposes of combating
terrorism. The Commission recalls that ifthe breach ofa treaty obligation is determined
, by the need to comply with a peremptory norm Gus cogens), it does not give rise to an
internationally wrongful act, and the prohibition of torture is a peremptory norm. In the
Commission's opinion, therefore, States must interpret and perform their treaty
obligations, including those deriving from the NATO treaty and from militaiy base
agreements and Status ofForces Agreements, in a manner compatible with their human
rights obligations.
160. The Venice Commission hopes that this opinion will assist the Committee on Legal
Affairs and Human Rights ofthe Parliamentary Assembly ofthe Council of Europe in the
completion of the inquiry into these matters. The Commission also hopes that this
opinion will assist the Secretary General ofthe Council of Europe in his ongoing inquiry
under Article 52 of the European Convention on Human Rights. The Commission is
ready to pursue its reflection on these matters, if'so requested.

1 Article I, Protocol 7 to the ECHR (Procedural safeguards relating to expulsion of
aliens) provides:
"1. An alien lawfully resident in the territory of a State shall not be expelled therefrom
except in pursuance of a decision reached in accordance with law and shall be allowed: a
to submit reasons against his expulsion> b to have his case reviewed> and c. to be
represented for these purposes before the competent authoritY or a person or persons
designated by that authority.
'
2. An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c
ofthis Article, when such expulsion is necessary in the interests of public order or is
grounded on reasons ofnational security.>l Similarly, Article 13 ofthe International
Covenant on Civil and Political Rights provides:
"An alien lawfully in the territory ofa State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise require> be allowed

UNCLASSIFIED
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UNCLASSIFIED
to submit the reasons against his expulsion and to have his case reviewed by, and be .
represented for th~ purpose before, the competent authority or a person or persons
especially designated by the competent a~thority:'

ill European Court ofHuman Rights, Klass and others v. Federal Republic of Gennany
judgment of 24 October 1979, § 55.

mETS no. 24. The European Council.Framework Decision 20021584/JHA of 13 June
2002 on the European arrest warrant and the surrender procedures between Member
States simpiifies and speeds up the procedure ofextradition between EU member States,
by requiring each national judicial authority (the executing judicial authority) to
recognise, ipso facto, and with a minimum of fonnalities, requests for the surrender of a
person made by the judicial authority ofanother Member State (the issuing judicial
authority). As of 1 July 2004, it has replaced for the EU member States.the 1957
European Extradition Convention all;d the 1978 European Convention on the suppression
of terrorism as regards extradition; the agreement of 26 May 1989 between 12 Member .
States on simplifYing the transmission of extradition requests; the 1995 Convention on
the simplified extradition procedure; the 1996 Conventjon on extradition and. the relevant
provisions ofthe Schengen agreement.
.

ill ArticJe 7 ECHR.
ill ETS no. 90.
I§l The Explanatory report on the European Convention on Extradition underlines that

different approaches were taken by the different States as to whether the transport ofa
. person on board of a ship or aircraft of the nationality of a country other than the
requesting or requested Parties was to be considered as transit through the territory ofthat
country. This question was left to be settled in practice (see Explanatory Report on
Article 21, at http:/conventions.Council of Europe.int/treaty/enlreports/htlmJ024.htm).

ill OJ L, 321, 6.12.2003, p. 26.
ill The specific human rights obligations for Council of Europe member States in respect
.of extradition treaties, including this agreement, will be dealt with below (see paras 137153)

.

I2l In the context of the present opinion, the term "prisoner" means "anyone deprived of
their liberty by State authorities".

llQl European Court of Human Rights, Stocke v. Germany judgment of 12 October 1989,
Series A no. 199, opinion of the Commission, p. 24, § 167.

LUl European Court of Human Rights, Soering v. the United Kingdom judgment of 7
July 1989, p. 35, § 89

I.11l European Court of Human Rights, Stocke v. Germany, 12 October 1989, Series A
no. 199, opinion of the Commission, p. 24, § 169

.

.

il1l European Convention on the Suppression of Terrorism, ETS 90

UNCLASSIFIED
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UNCLASSIFIED

. LMl European Convention on the Prevention of Terrorism, ETS No. 196
illIEuropean Convention on laundering, search, seizure and confiscation ofthe proceeds
from crime and on the financing of terrorism, ETS No. 198.

[,1§J. Recommendation Rec(2005) 10 of the Committee of Ministers to member States on
"special investigation techniques" in relation to serious crimes including acts of
terrorism; Recommendation REC(2005)09 ofthe Committee of Ministers to member
States on the protection of witnesses and collaborators ofjustice; Recommendation Rec
(2005)Q7 ofthe Committee of Ministers to member States on identity and travel
documents and the fight against terrorism.

ll1l See MullerlKolb, Article 2(2), MN. 16, in: Simma (ed.), The Charter ofthe United
Nations - A Commentary, Oxford, 2nd ed. 2002).

Illi Border and Transborder ArmedActions, Nicaragua v. Honduras, Jurisdiction ofthe
Co.urt and Admissibility ofthe Application, ICJ Rep. 1988, 69, 105, para. 105.

Il2l See ICTY, Prosecutor v. Furundzija, International Legal Materials 38 (1999).317, at
p. 349; further references in: Andreas Paulus, Jus Cogens in a Time of Hegemony and
Fragmentation, Nordic Journal of International Law 74 (2005) 297-334 (at p. 306).
[20] European Court of Human Rights, Ocalan v. Turkey judgment [OC] of 12 May
2005 .

.Ill1 European Court ofHuman Rights, Kurt v. Turkey judgment of25 May 1988, § 124
[22] Article 1 of the Convention against Torture and Other Cruel, Inhmnan or Degrading
Treatment or Punishment

l1Il European Court of Human Rights, Ireland v. UK judgment of 18 January 1978, §
167
[24] European Court of Human Rights, Ireland v.UKjudgment, § 167.
.

.

[25] European Court of Human Rights Selmouni v. France judgment of29 July 1999, §
101.
[26] European Court of Human Rights, Selmouni v. France judgment, § 101.
[27] European Court of Human Rights, Tyrer v. United Kingdom judgment of25 April
1978,§29.
[28] European Court of Human Rights, Z v. United Kingdom judgment of 10 May 2001;
A. v. the United Kingdom judgment of23 September 1998~ § 22.
[29] European Court of Human Rights, Caloe v. France judgment of20 July 2000.

.Q.Ql Article 2 of the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment similarly States that "Each State Party shaH take
effective legislative, administrative, judicial or other measures to prevent acts of torture in

UNCLASSIFIED
L0237

, UNCLASSIFIED

any territory. under its jurisdiction." See para. 146.
".i'ID'see European Court of Human Rights, Issa v. Turkey judgment of 6 November
~, §§ 71-74; Internationai Court ofJustice, Advisory Opinion on legal qonsequences
ofthe construction of a wall in the occupied Palestinian territory, 9 July 2004, §.109: See
also the views adopted by the Human Rights Committee on 29 July 1981 in .the cases of
Lopez Burgos v. Uruguay and CeJiberti de Casariego v. Uruguay, nos. 52/1979 and
56/1979, at §§'12.3 and 10.3 respectively. See Inter-American Commission on Human
Rights, Coard v. US, Case 10.951, Report No. 109/99,29 September 1999, § 37, and .
,Alejandre Cuba, Case 11.589, Report No. 86/9929 September 1999, § 23. '
f321 Lopez Burgos, No 52/1979, § 12.3; Celiberti, No 56/1979, § 103.3; Persons who
have fled abroad are not prevented by Art 2 (1) from submi,tting an individual
communication, No 25/1978, § 7.2; No. 74/1980, § 4.1; No. 110/1981, § 6; States parties
are responsible for violations of the Covenant by foreign diplomatic representatives, No
31/1978; No 5711979; Nr 77/1980, No 10611981;:No 108/1981; No. 125/1982

ill1 HRC General Comment 31, § 10.
[34J See Also Article 33 (Prohibition of expulsion or return ("refoulement"» of the 1951
UN Convention 'relating to the Status of Refugees. In 1990, the United Nations General
Assembly sought to ensure that human rights would receive full respect in the extradition
process when it gave approval to the UN Model Treaty on Extradition whic4 excludes
extradition not only if there are substantial grounds for believing that the person will be
prosecuted Qr punIshed in the requesting State on account ofms race, religion,
nationality, ethnic origin, political opinion, sex or status, or subjected to torture or cruel
inhuman or degrading treatment or punislunent, but also "ifthat person has not received
or would not receive the minimum guarar~.tees in criminal proceedings as contained in the
International Covenant on Civil and Political Rights".

112 European Court of Human Rights, Soering v. the United Kingdom judgment of 7
July 1989; Chahal v. United Kingdom judgment, of IS November 1996, § 80.
[36] Soeringjudgment, § 86.
[37] Soeringjudgment, §§ 89-91.
.Q.[l Ahmed Hussein Mustafa Karnil Agiza v. Sweden, Decision CAT/C/34/D/233/2003,
24 May 2005.

[39] European Court of Human Rights, Mamatkulov and Askerov v. Turkey judgment
'

. [GC] of 4 February 2005.

[401 European Court of Human Rights, Mamatkulov and Askerov judgment, § 76

Hll European COUli of Human Rights, Cruz Varas and others v. Sweden judgment of 20
March 1991, § 75, Mamatkulov and Askerov judgment, § 69; Vilvarajah and others v.
UK judgment of 30 October 1991, § 107.
, [421 See e.g. European Court of Human Rights, Aksoy v. Turkey judgment of 18

UNCLASSIFIED
L0238

UNCLASSIFIED
December 1996, § 62.
f43] See EuropeaJ1 Court of Human Rights, Isayeva v. Russian Federationjudgment of24
February 2005, § 191;' ICJ, Advisory Opinion on the Legal Consequences of the
'
Construction ofa Wall in the Occupied Palestinian Territory Advisory Opinion of9 July
2004, para. 127 eThe Court notes that the derogation so notified concerns only Article 9
of the International Covenant on Civil and Political Rights, which deals with the right to
liberty and security ofperson and lay~ down the rules applicable in cases of arrest or
detention. The other Articles ofthe Covenant therefore remain applicable not only on
Israeli temtory, but also on the Occupied Palestinian Territory").
[44] Article 4(1) ICCPR has led to the formulation by the United Nations, Economic and
Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities, of the $o-called Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc
E/CN .4/1984/4 (1984). In paras 39-40, under the heading "Public Emergency which
Threatens the Life of the Nation", it is said: "39. A State party may take measures
derogating from its obligations under the International Covenant on Civil and Political
Rights pursuant to Article 4 (hereinafter called 'derogation measures') only when faced
with a situation ofexceptional and actual or imminent danger which threatens the life of
the nation. A threat to the life ofthe nation is one that: (a) affects the whole of the
population and either the whole or part ofthe territory of the State, and (b) thre~tens the
physical integrity ofthe population, the political 'independence or the territorial integrity
of the State or the existence or basic functioning of institutions indispensable to ensure
and protect the rights r~cognised in the Covenant. 40. Internal conflict and unrest that do
not constitute a grave and imminent threat to the life of the nation cannot justify
derogations Wlder Article 4".
[451 Guidelines of the Committee of Ministers of the COWlcil of Europe on human rights,
, and the fight against terrorism, 11 July 2002, article XV.
[46] H'ouse ofI';ords, Judgments - A (FC) and others (FC) (Appellants) v. Secretary of
State for the Home Department (Respondent) (2004)A and others (Appellm;ats) (FC) and
others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals),
[2005] UKHL 71; House of Lords, Judgments - A (FC) and others (FC) (Appellants) v.
Secretary of State for the Home Department (Respondent), [2004] UKHL 56;
Bundesverfassungsgericht, Aviation Security Act, 1 BvR 357/05; Israeli Supreme Court,
Public Committee Against Torture in Israel\v. The State ofIsrael et aI., Case He]
5100/94; Israeli Supreme Court, The Center for the Defense of the Individual v. The
Commander ofIDF Forces in the West Bank, Case He] 3278/02; Israeli Supreme Court,
Marab v. The Comniander ofIDF Forces in the West Bank, Case HC} 3239/02; see also
US Supreme Court, Rasul v. Bush, Case No. 03-334, 542 US 466 (2004) 321 F.3d 1134.
[47] See Prosecutor v. Tadic (1996) 105 ILR 419, 488.
[48] The Manual of the Law of Armed Conflict, UK Ministry ofDefence, Oxford (OUP)
2004, no. 3.5.1 (at p. 31),
[49] See Venice Commission's opinion on possible need to further develop the Geneva

UNCLASSIFIED
L0239

UNCLASSIFIED

'Convention, CDL-AD(2003)018, § 87.
(50] Opinion on the possible need for further development of the Geneva Conventions, .
CDL·AD (2003)018. § 56.

ill.J See Supreme Court of Israel, HCJ 7015/02, Ajuri v. The Commander ofthe IDF
Forces in the West Bank, in: Judgments of the Supreme Court of Israel- Fighting
Terrorism within the Law,
http://www.mfa.gov.iIlMFA/Government/LawlLegal+Issues+and+RulingslFighting+Terr
orism+within+the+Law+2-Jan-2005.htm. at pp. 144-178.
[52] The Secretariat of the ICAD Council stated that '<the predominant view is that all
such other aircraft [performing State services other than military, police and customs]
would in fact be considered as falling within· the scope of the Convention". In the study, it
is recalled that under the Paris Convention of 1919 all State aircraft other than military,
customs and police aircraft were treated as private aircraft and subjected to all the
provisions of the Paris Convention (see Doc. C-WP/9835 of 22/0911 993. S~cretariat
Study on "Civil/State aircraft" presented by the Secretary General ,at the ICAO Council
140th Session, § 5.2).

, liJ.l In Germany, for example. certain flights performing state functions. such as
'transports of high government officials or hurnanitarianldisas'ter relief flights are referred
to as "civil State flights" (zivile Staatsfluge) and are regarded as civil flights in the sense
. of the ICAD Convention (but not necessarily in the sense of general public international
Jaw), see Bericht der Bundesregienmg (Dffene Fassung) gemiiB Anforderung des
Parlamentarischen Kontrollgremiums vom 25. Januar 2006 zu den Vorgangen.im
Zusammenhang mit dem Irakkrieg und der Bekampfung des Intemationalen Terrorismus,
at http://www.bundesregierung.de/Anlage965868/BerichHder+Bundesregierung++offene+Fassung.pdf.. at pp. 62·67.
[.54] ICAO Secretariat Study on "Civil/State Aircraft" LC129·WPf2-1. Pellet, Dailler.
, . Droit International Public, LGDJ, 7e edition. 2002, pp. 1250; Combacau (J.), Sur (S),
Droit international Public, Montchristien, 5e edition. 2001, p. 473; "Status of military
aircraft in international law". address at the Third International Law Seminar of 28
August 1999, by Professor Michael Milde. fOImerly the head of the legal bureau of the
International Civil Aviation Organisation. at: http://
.
www.mindef.gov.sgtdmgllslI1399.doc; Diederiks-Verschoor, Introduction to air law,
Kluwer, pp. 30 and following.

Lill In the case of a civil aircraft (B-737, MisrAir flight 2843 from Cairo to Tunis)
carrying, on the basis of charter by the Government, suspected terrorists out of the
country under Military Police escort and intercepted and forced to land in Italy by the US
military based in Italy, the US Government, in a letter to the International Federation of
Air Line Pilots Association, stated: "It is our view that the aircraft was operating as a state
aircraft at the time of interception. The relevant factors -·including exclusive State
purpose and function ofthe mission, the presence of armed military personnel on board
and the secrecy under which the mission was attempted - compel this conclusion". This
case, quoted in ICAO document LC/29-WP/2-1, pp. 11·12, was cited by Professor Milde,

UNCLASSIFIED
L0240

. UNCLASSIFIED
see above) footnote 54. See also A. Cassese, Terrorism, Politics and Law, the Achille
Lauro case, Polity Press, p. 39.
.
[56] Diederiks-Verschoor, Introduc:tion to air law, Kluwer, pp. 30 § 12. See also footnote
52.
.
[57] Status ofratifications of the Chicago Convention available at:
. http://www.1CAO.intlICDBIHTMUEnglis~epresentative%
20Bodies/CouncillWorkingOI'o20Papers%20byOl'o
.
20Session1163/c.163.wp.11641.enlC.l63.~.l1641.ATf.EN.HTM
[58) See M. Milde, "Status ofmilitary aircraft in intemationallaw", address 'at the Third
Iritemational Law Seminar of2S August 1999, op. cit.

I2.21 The United Nations Convention on Jurisdictional Inununities of States and their
Property, signed on 1 March 2004, provides in its Article 3 § 3 that "The present
Convention is without prejudice to the immunities enjoyed by a State under international
law with respect to aircraft or space objects owned or operated by the State".
(60] See Pellet, Dailler, Droit International public, op. cit., p. 1252; A. Cassese,
Terrorism, Politics and Law, op. cit., p. 39.

I§1J See "Status of military aircraft in intemationallaw", address at the Third
International Law Seminar of28 August 1999, by Professor Michael Milde, formerly the
head of the legal bureau of the International Civil Aviation Organisation, at: http://
www.mindef.gov.sgldmglIslI1399.doc.
[621 Para. a) ofArticle 3bis of the Chicago Convention provides that" The contracting

States recognize that every State must refrain from resorting to the use ofweapons against
civil aircraft in flight and that, in case ofinterception, the lives of persons on board and
the safety of aircraft must not be endangered. This provision shall not be interpreted as
modifying in any way the rights and obligations of States set forth in the Charter of the
United Nations.
.
[63] For Germany see Schonke/Schrtlder, Strafgesetzbuch, 26th ed. 2001, Vor §§ 3~7,
para. 30, and § 153 c Strafprozessordnung (Law on CriminatProcedure), according to
which the Public Prosecutor may abstain from prosecuting a crime which has been
committed by a foreigner in a foreign aircraft; this provision presupposes that full
jurisdiction over foreign aircraft in flight exists and only gives the Prosecutor a
discretionary power not to exercise this jurisdiction, see Meyer-GoBner,
Strafprozessordnung, 48 th ed. 2005. See also, e.g. Males (French Cour de Cassation, 29
June 1972,27 June 1973, 73 ILR 698), Public Prosecutor v. Janos V. Austrian Supreme
Court 17 May 1972,71 ILR 229, Air India v. Wiggens, UK House of Lords, 3 July 1980,
77 ILR 276), US v. Georgescu, 723 F. Supp. 912 (1989).
[64] Tokyo, 14 September 1963, UNTS 704.
~

IC] judgment on the North Sea Continental ShelfCases (Federal Republic of
Germany v Denmark; Federal Republic of Germany v Netherlands) [1969J Ie] Reports 4 '

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UNCLASSIFIED
at 26 (§ 30);
[66].See ICAO Secretariat Study on "Civil/State Aircraft" LC/29-WPI2-1; Council
Working paper C-WP/10588 Misuse of Civil Aviation (Request from Cuba).
[67J For example, the agreement of26 July 1962 between Italy and the Supreme
Commander of the NATO on the specific conditions ofsettling and operation on the
Italian territory of the present or future international military General Quarters provides at
Article 4 that the Italian Government accepts that the J1).oveable and immoveable property
ofthe General Quarters is immune from search.
[681 SOFAs are normally bilateral; there exists in addition a multilateral SOFA with
NATO members, the NATO Status of Forces Agreement (SOFA) of 19 June 1951
(Agreement between the Parties to·the North Atlantic Treaty Regarding the StatUs oftheir.
Forces, http://www.nato.int/doculbasictxtlb510619a.htm). Pursuant to Article vn of the
NATO SOFA, when only the sending State's law is :violated, the sending State has the
power to exercise sole criminal jurisdiction. When only the receiving State's law is
violated, the receiving State has the power to exercise sole criminal jurisdiction. When a
crime violated the laws of both countries, there is concurrent criminal jurisdiction: the
receiving State maintains primary jurisdiction except for offences committed solely
against the property or security or member ofthe sending State force, or for offences
arising out ofany act or omission done by the sending State service member in the
performance of official duty. In all other cases, the receiving State has the primary right to
exercise jurisdiction. In cases of concUrrent jurisdiction, the reCeiving State may
relinquish jurisdiction through waiver requests from the sending State.
[69J Article llI.l

[701 Article Ill.2

11ll This is usual, for instance, in US treaty practice..See John Woodcliffe, "The
peacetime use offoreign military installations under modern intemationallaw", Martinus
Nijhoff, 1992, p. 144.
[721.There is a similar provision in the Treaty on Collective Security of the
Commonwealth ofIndependerit States (CIS). Two Council of Europe member States,
Russia and Armenia, are currently party to this treaty.
[73] The Commission has not been able to see the text of this agreement.
[74] See US Department of Defense, Fact Sheet of7 June 2002, International
contributions to the WaT against terrorism, at
http://www.defenselink.mil/news/Jun2002/d20020607 contributions.pdf.
I75] European Court of Human Rights, Stocke v. Germany judgment of 12 October 1989,
Series A no. 199, opinion of the Commission, p. 24, § 167.
[76] European CoUrt of Human Rights, Ocalan v. Turkey judgment, § 90.
[77] Internal Security Services In Europe, Report adopted by the Venice Commission at

UNCLASSIFIED
L0242

, UNCLASSIFIED
..,: ,

~

~.

:

:

its 34th Plenary meeting, 7 March 1998CDL-INF(1998)006e)

"

.....

,[7.81E\)fopean. C.ourt of Human ~ght~, Klass and others.v. Federal ~epublie of Germany·
judgment of6 Sei>~ember 1978, § 75 in connection with § 71; Leander v. Sweden~ ...
judgment of26 Marcb·1987. § 8 4 . ·
.
.
.
.
[79) European Court ofHuman Rights, Kurt v. Turkey judgment of25 May'1998; § "124..
[801 Inter-American Court of Human Rights, Velasquez Rodrigues caSe, 29 July 1988, § .
187 and Suarez Rosero case, 12 November 1997, §§ 90-91. UN Human Rights
Committee, Polay Campos v. Peru, Communication. 577/1994, 6 November. 1997, §§ 8.4,
8.6 and 8.7. See also European Court of Human Rights, Dealan v. TUrkey judgment of 12
March 1993, §§ 31-232.
:(
.
~

The Schengen Treaty, for example.

[82] European Court of Human Rights, Ilascu and others v. Moldova and Russia
"judgment of 8 July 2004, § 31.~.

. ffil European Court of Human Rights, Chahal v. United Kingdom judgment of 15
November 1996.
. [84] .A.qicle 3 ECPT provides: "In the application of this Convention, the Committee and
the. competent national authorities of the Party concerned shall co operate with ea<?h.. ,
. other." See also Article 8 § 2 (b) ECPT,
[85] Article 10 § 2 ECPT proyides: "Ifthe Party fails to co-operate or refuses to improve
the situation in the light of the Committee's recommendations, the Committee may
decide, after the Party has had an opportunity to make known its views, by a majority of
two thirds of its members to make a public Statement on the matter,"
[86] And is indeed required: see European Court of Human Rights, Nivette v. France
judgment of 3 July 200 I, in which the European Court of Human Rights found that
extradition to a State imposing the death sentence violated Protocol 6.

.llill The Council of Europe Steering Committee on Human Rights (CDDH) has set up a
Group of Specialists with the task of "reflection on the issues raise4 with regard to human
rights by the use of diplomatic assurances in the context of expulsion procedures; and
consider the appropriateness of-a legal instrument, for example a recommendation on
minimUm requirements/standards of such diplomatic assurances, and, if need be, present
concrete proposals".
.
[88] See European Committee for the Prevention of Torture and Inhuman and Degrading
Treatment, 15 th General Report on the CPT's activities, §§39-40, at
http://www.cpt.codntJen/annuallrep-15.htm..

[89J See European Court of Human Rights, Uascu and others v. Moldova and the Russian
Federation, judgment of 8 July 2004, § 318, Riera Blume arid others v. Spain judgment of
14 October 1999 (final 14/01/2000) §§ 34-35; Gongadze v. Ukraine, judgment of 8
November 205, § 165.

UNCLASSIFIED
L0243

-',
~

4. APR. 2006··18:24
I•. " ,

.....

-,

AMERICAN AMBASSY

'", ·"'1

,...,
[EMBARGOED FOR:

j .

47 22554313.

~o.

III

UNCLASSIFIED
!
RELEASED
5.ApriI200G]
B5

r. L

IN PART
Public

,

am nesty i nterru~tional L/J~
T

!I

i

"

i

.UNITEDSTATI,:S OF

.AMER.ICA·.
.

Below, the .radar: Secret fli'ghts,
to torture, and 'disappearance'
I

. '

,I
,
I

!" ,
I

I

5 AprJl2006

AI Index: AMR 51105112006
INIE~NATIONAL SECRETARIAL 1 EASTOr,LSTREEI. LONDON WC1X ooW, UNm:O KfNGOOM

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444
.

B5

UNCLASSIFIED
L0244

'1-, IH 1\. L VV0 I 0 : L't

'''llLIIlvnn

nIlUNCLl\SSiFIED

..
)

TABLE OF CON'tENT$

t. The·US rendition programme "
1.1 Rendi:tio~

,.

2

"'

~

,

1.2 'Diplomatic asSlII'.3.nces'

,.•.....•,•••••.•..

1.3 Establishment of the US ~endition

~

4t ••

_.;.t

2

progr~e~

~

:

4

~

7

1.4 Rendition practice since September 2001

1 5 Pakis-t.an

_ ,

,

·••.....••

··r

~

u

t

• .~

·.:•••••••• •••

~

t

8

,

1.6 Torture~ ill-treatment and cdi:;Ulppearance': violations ofinter.tJationa\ law

9

1.7 Secret detentions and secret transfers: the ease ofMuhammad Basbrnilah, Salah·
Qa:ru. an.d Muhamtna.d aI-Assad. ."
~
~
10
,t

;

"'

1.8 Transfer to torture: the case ofMuhammad Zaznmar

18

. 1.9 A practice predating 2001: the case of Abdul Rabman al-Y ~i..

20

2. Plan~ and airports - the support network for rendition tlights~

24

2.1 International aviation law and renditions

2.2 CIA-front companies

~

24
:

,

~

,..•,

25

2.3 Other US agencies invol'Ve~ in rendition

.2.4 Role of1:hird co'UD.m.es ~ ••

'll • • • "

,

~

"

"

1I • • • • • • •

~

2.5 Flight movements: 2001-2005
2.6 COmpanies and aircr¢

,.,.

Appendix: Planes monitored..•.:

,

,
:

AI Index: AM~ 51/05112006

•••••••

28
29

,

3. .Amnesty Intetilational's recomm.endations

~

26

~3(j

.

33
36··

Amnesty }ntematiOllst 5 April 2006

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2

.

."'

~~

."

AMERICAN AM8'ASSYUNaI22\gS-HIF~I£E;±:D~--l'jv.

II/-r.

't

USA: Below the radar- Secret nights to torture and 'disappearance'

UNITED S'TATES OF,AMERICA
Below the ,radar:, Secret fI.ights
to' torture and 'disappearance' ,
1. The US' rendition 'prog~mme
1~ 1 Renditions

Amnesty Intemational uses the tenn "re;o.ditionn to describe the transfer ofindividuals
from one country to another, by means ~t bypass all judicial and administrative due
process. In the "war on teiIor" context, the practice is mainly' - although. not
exclusively - initiated by the USA. and carried out with the collaboration, complicity
or acquiescence' of other goverrunents. ,The roost widely known manifestation of
, rendition is the, secret transfer of terrOr suspects
the custody of other states .-----'------, including Egypt, Jordan' and Syria - where physical and psychological brutality
feature prominently in interrogations. The ;rendi't:i<?n network',salln is to \lSe whatever
means necessary to gather intelligence. and to kee» tleiBjnees away f'iOm.
inrlWial
\ qyeIsliht
"
"

mto

any

B5

However! the rendition network also serves to 1.l'ansfer people into US custOdy. where
they :may end up in Ouan:tanamo Bay in Cuba, detention centres hJ. Iraq or
Afghanistan. or in $~et facilities known as ~'bfack sites" run ,by the USA's Cen1Ial
, Intelligence Agency (C~). In a nUmber of caSes, individuals have been transferred in
and. out of US custody several times, Muha.nunad Saad Iqbal Ma~ for instance, 'WaS
arr~ed by Indonesian intelligence agents in Januaxy 2002, allegtdly on the
instructions' of the CIA, who flew him from Jakarta to Egypt. where he "disappeared" ,
and was rumoured to have, died under interrogation. In fact, he bad been secretly.
returned to Afghanistan via Pakistan in April 2002 and held there for 11 months
before being sent to Guanumamo Bay ,in Match 2003. It was more than a year later
that fellow detainees, who said he had been "driven. mad" by his treatment. managed
to get word ofms existeJice to their lawyers.
~dition. is

sometimes presented sin1ply as an efficient ,means of transporting terror
suspects i)'om one place to another without red tape. Such benign ,chatacteri.zations
conceal the truth about a system that puts the victim beyond the protection ofthe law,
and sets the perpetrator above it.

Renditions involve multiple layers of human rights violations. Most victims of
rendition were arrested and detained illegally in the first place: some were abducted;
others were denied access to any legal process, including the a.bility to challenge the
r-------PAecision to transfer them because of the r~ of torture. There is ,also a close link
~etwooD
renditioRs
and enforced ,disame.arances.
...
.
- Many of those who have been
~

- - - lil,mne-9ty Intemational

5 April 2006

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UNCLASSIFIED
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AMERICAN 'AMBASSY UN~~BIFIED

NU. III

USA: Below th~ rodar ~ Secret flights to torture and 'disappearance I

t
illegally detained in one country and illegally transported to another have
r--.L..-------,su'bsequent1y "disappeared", including dozens 'Who have "disappeared" in US custody.
EveLY. ODe of tbe v;ctiW$ of rendition interviewed by Aronesty' International bas
described incidents oftorture and other ill-treatment.
~

.B5

9

'--------.JBecause of~'secrecysuxrounding the practice ofr~dition, and becaUse many ofthe
victims have "disappe~", it i~ difficult to estimate the scope o.f the programme. In
many countrl~ fai:nilies are 'reluctant to report their relatives as missing. for fear tbat
intelligence officials will tum. 'their aUention on them.. Amnesty International has
spoken to several people 'Who ~ve given eredib~e accounts ()f rendi,tion, but are
unwilling to make thei:r: names or the circumstanCX':s of their arrests and ~ers
knoWn. Some cases come ,to light when the victim is released or. gi:ven access to a
,..------........, lawyer, although. neither event is a common occUrrence: in the life of' a rendition
victim. The number of
rnn=rently appearS to be in the hW1d~; Egypt's Prlm~
Minister noted in ,2005 that the USA had traosferred sonie 60-70 detainees to Egypt
alone, and a fonner CIA agent with experience in the region believeS that hundreds of
detainees haVe been sent by the USA· to prisons in the Middle East. i@ USA has
acknowled ed the ca twe of about 30 ''hi
value" detainees W ose
~am uclcno'WIl, and e
IS re rted1y investigating sonie three dozen additional'
'---------' cases of "erroneous rendi ..gn", in
c peop e were etam
ase on awed'

cm

B5

eVidence or coilfiiSlon over names. 1

However, this is a. minimUm estimate; ReDdition, like "disappearance'" is designed to· .
e'Vade publi~ and judicial scrUtiny. to hide the identity ofllie perpetrators and the fate
ofthe v i c t i m s . '
,

1.2 'Diplomatic assuran,ces·
"They promptly tore hisfingemails out and he startedtelling things..,
Vincent Cannistraro, former Director of the CIA's Counterterrorism Center,
descnoing what happened to a detainee who was rendered to Egypt'
Those who have been reI?rlered to other countries for interrogation have said they
were beaten With hands· or sticks, made to stand for days on end,.hung up for/a/aga
(beatings on the sole of the'. foot)2. or deprived of food or steep.' In some cases, the
conditions of detentio~ including. prolonged isolation, have themselves amounted to
cruel treatment. Yet no one eM irU'!~stigate this, much less stop it. 'because the
condition and whereabouts ofmost rendition victims remain concealed.
.'
There is little doubt that transf~s are intended to facili~te such abusive interrogation.
.The furmer director of the CIA's Counterterrorism Center, Vincent Cannisttaro, told
Newsday newspaper in February 2003 that a senior al-Qa'ida detainee had been sent
from qtlanmnamo Bay to Egypt because he was refusing to cooperate with his

B5

I Dana. Prlc~ "Wrong1W Imprlsonlnent: AIlatomy of.. CIA Mimke". W~ll Post, 4 D~embet 2005.
2 ralllqA in"olv£s bestiDg the bm ,oles of the feeT. often wbcu the 'VIctim Is SIlSl'enc1ed IIPslcle-doWJl-ll CllIU~ Intense pain dlle
to tho num~QU~ ne:JW CDdinss in the fool, and oftl'.n "-Suses lostiD.g damage wthe fuet', &nlllII bonet and tel'ldons.

Amnesty IntemationtJl ~ April 2006

UNCLASSIFIEDAJ Index: AMR 51/051.12006

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4'

/'

..--~""

,....--------,

I.

AMERICAN, AMBAS~~~~~~I~~~I~~[)LL--

NO__,__
77__'

r_.___~__

USA: Below the radar - Secrt!Jt flights to torture and 'disappearance'

interrogators. In Egypt.' Vincent Caonistraro said, "they promptly tl3re hisfingemails
out and he started telling thillgs..,3 Robert Baer, a fOrDleT' CIA official in the Middle
East, told the British lJr,oadcastfng Corporation (BQC): "As r understand it. there's a
lot of franchising stuff out. Syria is a country, like Iraq, where 'they torture people.
1bey uSe electrodes. water torture. They take torture to the point 'of death, like the
Egyptians. The way you get around inyol'Ving Americans in torture is to get someone
else to do it.·"',
' ,
"
The US government has claime4 ~ renditionS do not lead to
•
SecretaIy 0
e
0 eeza
ce msisted that: "the United Sta1es has ~ot
transported anyone, and will not transport anyon.et to a ~untty when we believe he

on

will be'tortured. Where appropriate, the United States seeks assurances that
transferred persons will not be tortured. l>5

.

Even if one were to·accept the 'premise that 'rendition is not intended to facilitate
inte1TOgation, under torture. reliance
stich "diplomatic assurancesU would. not
satisfy the absolute ·obligation notro transfer any j>2l'son to a COUllUy where 'they risk
tOrture or other m~treatment (the principle of non-refou1emenl). Indeed, the premise
on which such assurances ate based is inherently se1f~contradictory. If the risk of
torture or ill-treatment in custody is so great that the USA must ask for asS\\fances that
the receiving state is ~ot going to carry out such a cri.nJ.e, than the risk is obviously too
great to pemrit the transfer. Most states asked to provide such assurances have, already
signed binding legal <»nventioXlS p-tohibiting tortUre aqd ill.treatment,. and h~ve
ignored them. Moreovert the use of diplomatic asSUrances crea~es a situation in which
ri~llher state has an interest in monitoring the agreement effectively, as any' breach of
the agreement would ixnplicate b<?th the sending and t¢eeiving states in intemationally
'
prohibited acts oftorture or ill-treatment.

on

1_3 Establishment 'of the ~S rendition programme
Before 11 September20Q1, rendition was largely thought of as a means of returning
suspected terrorists to the USA for trial. President Bill amton~s.Presjdentiai Decision
Directive 39 of June 1995 states: "When terrorists wanted for violation of U.S. law
"e at large overseas, their' return for prosecution shall be a-ma~higheSt
DOrity... If we do not receive adeq~te cooperation from a state that harbors a
errorist whose extradition we are seeking. we shall take appropriate measures to
duce cooperation.' Return of suspects by force may be effected without the
'operation of the host govennnent, consistent with the procedures outlined' in
ational Security Directive 77}, which shall'remain in' effect. ,,6 National Seourity
3' Tom ah1~. '''AD hggn:JSlvc: Jnl1lltOgatioll". Ncwsdlly. 4 Mcteh 2003.
4 ~tlll'S. Stripes and HutIlaU RigbU", inte<vicw brOlldeut onlJritish BroQlfeMting Cbrporatitm (lJBC) RiJdfo 'lhnt. JanulllY
.200Ci.
5 Se~1)' CQnd~l~ RI"". "Rcm@ Upon Her 'Departute for BllltlpC", ps-~ik1:d at AnCrt:W$,.Air Fo~a lbso. S [)~elllber
~OOS. sec: bt;p:I!'Nww,Ntc:,gD'l'16~/tl'llI.201'SI51602.hn:n.

,

6 NOtioll:ll Secllrity Direetl<n; 71'WU f~$ue4 by hosideAt Oaorge lJusll illianullry 1S'92,lII1clilS cDulenu ~~,
bTtp:lIWww.fu,orsl'lljl/offdoc$lpdd.39Jmn.

Amnesty international 5 April 2006

A/Index: AMR 51/051/2006

UNCLASSIFIED
L0248

,~';. ~~~':.~"~:'.'r:"~"~'~'

i· ,,' " .

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NO, 771"

P.-7
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USA: Below the radar - Secret flights to torture- and 'disappearanoe'

Directive 77 was' issue<:t by Presiqent George W. Bush in Jao'!J81Y 1-992, and its

'
l

contents remain classified.

.

Speaking before'the Senate Judiciary GoD1mittee in September 1998. FBI Director
Louis J. Freeh noted:' UDuring·
past decade, the United States has successfully
returned 13 suspected international terrorists to stand trial in the United States for acts
or planned acts of ten"onsm. against U.S. citizens... Based
its policy of treating
terrorists as criminals and applying the rule of Jaw against them, the United States is
one of the 'most visible and effective forces in identifying,locating. and apprehending

the

on

terrorists

on American soU and overseas.n1

.

,

.

At the same time, ho\y¢veI',·. other US agencies were making provision to iend.et
terrorist suspects to third countries, ~ the goal was not trial. but to keep them in.
~dy, out of circulation. 'and without access to US courts. Michael Scheuer, former
chief
the CIA ~ s bin Laden unit, said that the. CIA, had origin.a1.1y proposed a
pr~~e to bring suspects back to the USA and l:iold them as prisonexs of war.
WIien. this r8iJed to gain administration it oval, in 1995. the rendition ro anune to
Q'Pt was propose au accep
goal was to 'get the guys off the streets". said·
MiCEiieI Scheuer, and to seize doCUments, computers and any other information that
could be exploited for intelligence.' He al~ noted, howe'\J'er, that it was still White

of

D

House officials who called the .shots: they '''told'the CIA what to do, and decided how .
it should pursue. captt1te and detain teaorlsts... Having failed to find- a le~ means to
keep aU the detainees in American custody; they preferred to let other countries do
our dirty w o r k " . " . ·
,

B5

Publicly, however, it continu~ to be suggested that rendition was a. m.eans of
ensuring that terrorist suspects stood trial. In. 2000, in. a. statement before the US
Senate Select Commi ee -on ~1ligence. CIA Directo( George Tenet said: "Since
July 1998. worIdng . foreign. governments woddwide, we have helped to render
more than two dozen. errorists to justice. More than half were associates of Usama
Bin Ladin's,Al-Qa'id organization. These renditions have shattered terrorist celts
and networks. thwarte terrorist plans. and in some cases even. prevented atti1cks' from
occur.ring... l0 The- m
. ~ o{the plttase "render... to justice" is not entirely clear.
Amnesty IntemationaI has asked the CIA for details of who was rendered and to
trials, but has received no response.
_
[ where, and the dates of

err

In 2004, George Tenet estified to the US Congress' 9/11 ComInission that the CIA's
Counterterrorism Cen: ~ which added a. Renditions :Branch in 19971 "has racked up
many successes, incl • g the rendition of many dozens of terrorists prior to

7 J 9\)8 COllgte$$ioll&l.Hearings on

tcl.l!sen" \'IIlcf Secumr. SlOItClltlCl1t for the record from FBI Oirecrot Loni" 1 Pteeh, ~

SeJ)tenlbcr ~9S'B.

8 Neil MAckay. "lbese!Wll men
IlllJ'el'lS ol1lalditioll", SUIl!Ulr HC'll'ald (ScotbM), 16 (ktobe1' 200S.
9 MIcb,d Scheller, "A fine l'l!Aditio ", Nt:\1t' York Tim~. II ~tcll200S.
lQ

~:http://www.()dc:i.r,oy/cfalpul> j~_llffiliJ3/spee¢llesl20(Wt=1euestimony_04142004JJnrtI.

Amnesty Intemational 5 April 006

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r.

II

ar- secret ftlghts to torture and 'disappearance'

.September 11, 2001." In later remarks. he clarified that there had been at least 70
renditions to forei
un .es; no trials were mentioned. ll.
. .
'.

~ l Writt':l' SlllUll1ent for the RJ:cord ftho Direct()~ ofCentrallntelJigenu Before The Nlltloo~ CommlSsiop Oil Ttmlrisr A!l:l.cks

Upon the UnJlecI Stntes. 24 M¥ch 20

•

Amnesty Intemational 5 April 006

AI In(j~x: AMR 511051/2008

UNCLASSIFIED
L0250

4. APR. 200& 1.8;26

I.lV. "

I

,

7

USA: Below tho ratJar· Secret Ui~~t$ to torture and 'disappearance'

.. .- .........

I.

1.4 Rendition practice sinc~ September 2001

)

nAil I want to say is that thert was 'befOre' 9/11 and. ''ffter' 9/11. After' 9111' the
"glove$ come ~jf... 'No Limits' aggressive" re?entless, worldwide purJ"Uit of any
. terrorist who threatens us is the only way to go.•.
Cofer Black, Director of the CIA's Co:unterterrorism Centre from 1999 until May
2002, in a statement before the 9111 Commission
t1

r--------,

.

etice has shifted em
•ely; the aim
Since 1I S tember the focus of dition
noW 1$ to ensure
t suspects are not brought to stand ~ but are handed over to '
foreign governme~ts for interrogation - a proce~ known iJ:1 the USA as
u ~rendition~- or arc kept in US custody on foreign sites. What was once
an. inte,r.a,ge.ncy operation was apparently turned largely over to the CIA ~ a stillclaSsified directi.ve signed by President Bush in September 2001.11 The minonty and
majoritY leaders of both chambers ofCo~gress were apparently notified. ofthe CIA's
~ew powers, ~ut were not consulted on or even ·shown the directive.
.

B5
The ditective is said to give the CIA the power to capture and hold terrorist
.
pnol.to lts S1gnmg. e C co capture suspects, ut a no au ority to keep them.
in custody. This had been paIt of the reason for establishing the rendition programme
'----------' iri the first place; it enabled the CIA - and oth~ US intelligence agencieS - to cap~E? .
suspects and ~hip them off to client states without having.to produce the evidence that- '.
would justify detention or trlal. 13 Roger Cressey. who was deputy counter-tettorism
. director at the ~te HoUse in 2001, told UPI: "We 3{e going 1:0 make mistakes. We
are even going to kU1 the wrong people sometimes. Thaf's the WhereD.t· risk of an
,i
aggressive counter-terrorism program.")· ,

As the practice ofrendition has shown., mistak~ are indeed made and lives are ruined.

Some in the US government have tried to justify rendition and ~lack sites" by saying
they are a necessary means of capturing and holding the "worst ofthe worst", and that
"renditions save lives", yet there is no legal or judicial mechanism to ensure that this
is the·case. The methodology is to grab first, sometimes on flimsy or non·existent
evidence. and to ask questions later.
.
Without a transparent process. based on the intema:tional standards and customary
rules that bind all states,. the programme of rendition and secret detention is erc,>di.ng
the human security and rule oflaw it claims to prote9t. For all practioal purposes, the
12 Douglas Jehlllll.d David Jolwt911o "Rille Clwlge Lets Cl'.A Freely Selld SUJpecb AbJO~d 10 ],,"'1$", New TOrK

rimts. ~ Moeb

.20~•

. ' 1l There are IS federal ot~i:Utiollll in 1h~ US ~inteUigeneo commllDiiy": NlltioaaJ Security Al:Q1ey/CllIllTol1 Security Service
(NSNCSS); Central I1ltellige1ll:t AScmcy (CIA); N;tlosii1l Geo~tw.lntelligenc: Agency (NOA); Federal Bureau of
In..ml¢ioi'. oral}~ lJefllll5f1 I1l1olligftlQf: J..gt:oey (PtA); }"IIUOllaJ ~tl)llWusanee Office (NltO); Depllrtmcllt otEnerll)' (DoE);
Army IncoUigence, Air Force InteIlij;CI)ci (~); NaYj"lnteUige~ee (oNt); MDrin.. 00"" lllfelJj~e:nc<; Depann.cnt o(Tr=ury

(OIS); Ocpll1tmcnt of State QNR): COlUt Gunni III1d IIIc Oeparanent ofliomelMd: Security (DRS).
14 Sba\UI Waterman, "CIA. 't06 C:llll1io~' ill JcjJ]ln, tIllTOMS", UP!, 28 Febtu1l.J')' 200S.

Amnesty Inmmational 5 April 2006

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4. APR. 2006-18:16
B

AMl:lU(;A~ AMt)A~~Y

NNe~A:gSIFIBD

~,

. . . '. ;. ,.;. . - --=

USA; Below the radar- Secret n;ghts to torture and 'disappearano.e'

B5

~.~

t

"

USA has crnated a law~free zonl1l~ in which the human rights of certain individuals
hiVe simply been erased.
'
:
"

.. .

1.5 Pakistan
Hassan bin Attasb was ouly 17 yean old when he was detained in a house raid in
, ' Pakistan in September 2002. He was sent fust tG 1he !IDark Prison" in Afgbai1istan for
about a week, then rendered again', this time to Jordan, where he said he was severely
tortured while being inteaogated about the' activities ofhis b.l'other~ Walid bin Attash,
Who .ba$ "disappeared" and is presumed to be' held in a secret US detention centxe.
.A.D:.!1ouncing Walid bin Attasb~s cap1.Ute in 2003, President George W. Bush called
him a: "killer', adding u~ is one less person that people who love freedom have to
wony about". Mer 16 months iuJordan. Hassan bin Attash, a Yemeni national, was
rendered back to US custody in Afglu1nistan, then resurfaced at Guantanamo Bay in
May2004~

Although cases of rendition from Western countries have' received substantial
...--------, ·attention in the media and from hu.w.an :rights organizations, it remains the case that
.most of the known victi.ms of rendition or' secret detention were initially detained. in
~ where the government maintains a. cIose workirig relationship with the USA
on intelligence matters; S,omc of them are known to be in GuanUinamo 82.y15; others
in (~laek sites$ti some were rendered by the USA to Middle Eastern countries where
tliey are believed to have been tortured. fransfel'$ to US and otbet custody liiive lX5en
canied out· in contravenUon of Pakistani national ex:ttadiUQD law as wen' as the
international prohibition of re/oulement.

J

B5

The Pakistani government'has publicly stated that some 700 terrorist suspects have
been arrested, nmny of whom have been handed over to l:1S-custody: Many 'of these
~ee$ have "disappearccP'. including men, women and children; joumalists
reporting) on the: "\VHt on teiror"; and doc~ allegeq to have tteated "terc9rlsts".
Given
degree of secrecy surrounding security operations. and the overlap betwee:Q .
'US and Pakistani. intelligence interests, it is difficult to find out which detainees have'
been turned over to the USA and which have been kept in PaIdstani custody.

the

Thos,e who have been turned over to the USA include many of. the "high value"
detainees currently being held ~ CIA "black s~tes". Of the 12 detainees identified by
ABC news as having been held in secret detention in Poland, nine bad first been
arrested by Pakistani forces; at least 19 of the 28 "disappeared" named by the Center

1

IS More tIwl 85 e:::..0el)t orllle GlIJUlltbluno delainel'S, fbr insTallCe, WOIU~I~ not ill Afsh~ismn by US trwP8t bllt by !he

~orth;; .A1llan~Cl 8n<l. Palcilltani f()~e.:;: l'Cwards ofl1p to US$S,OOO wera ~d for e:vezy "ten'orlcr tllrntd O<rQ' to lbe.USA ~
.

--

ICll;fIeT diitnbllted III )'llkistan by US tiJrees te~ "Oat wcsltll and power beyond your~. Help the Anti-':rllllbA1l Por~ tid

Af$hllIliscln tJ£ munl= IlJ1d terrcrist$. You can receive millions of doUa" for 1\eJpinJ: ~ Anti-'t.h'ban :rQree Clltch IJ-Qr:i¢a
ro:td Talfbal1. murd=tS." Sell Mork tlnbesux et nt, 1l.cport Cll\ ~ ~~: A ProiUo ofS t7 OeW=:s W/JuSh '
.An.tllysis ofOepattmQllt ot'I>efeDse J:)1Ila, ScroD Hllll Univetslty School on...... February 2006.

Amnesty International 5 AprU 2006

Al (ndele; AMR 61(05'112005

lTNCLASSIFIED
L0252

. '.:' f

4. APR:2006 18:26

. "~;"-4:'

•

'''~:'';:

.' '. • •

\:.

'".

• ':'.

•

AMrKICAN ~M~~CUAS81PHED

ltv.

.

"

1'1

!.

l

I

9

USA: Below the radar - Secret flights to terture and 'disappearance'

rOt Human Rights and Global Justice at the New York University School of Law bad

,,--'.

j

likewise been detained in paldstan.

'6

.

The most recent such deteil.tion appealS to be that of Mustafa SetmariariJ. Nasar, also
known as Abu Musab al-S~ who was reportedly arrested in Quetta by Pakistani
: counter-tenorism. pollce in early November 2005. The subject of a US$S million
reward on the FBI's "Rewards for JUstice" list. Mustafa Nasarts capture waS .
described by US iDtelllg~ce officials ~ an "intelligence bonanza", adding that "he is
all pen, no aetio~ but the man has amazing "access to a lot"of other key players. ,,17 The
USA has not officially cohfinned his arrest, and his current whereabouts remain
unknown, bu~ his photQgffiph and details have been removed from the "Rewards for
Justice" wanted list. Mustafa Nasar's wife Elena blames his continued
'~di.sappearatlce'· ~n ''non-Pakistani'' agents.
Mustafa Nasar was one of 3S people listed in a 695-page indictment handed. down in
Seprember 2003 by Spanish Judge Baltasar Garzon. The indictment called for the
arrest of 34 other men:. including Osama BiD Laden, on. charges iucltiding membership
of a terrorist group and planning tenorlst acts. In the indic1men~ Judge Garzon
alleged that Mustef'a Nasar trained volunteers froro Spain, Italy and France, then sent
them. home as "sleepers" awaiting orders. The Judge also alleged that he worked .
closely with. the 1~e:c of the Spanish cell, lmad yarkus, a Syrian-born Spaniard who
was tried and sentenced to a 2S-year prison term. in Spain in 2005. Judge Garzon
issued .aD. international arrest wamwt for Mustafa Nasar in 2003, but ¢.e Spanish
authorities have not been given any indication ofhis CUITent whereabouts.

. I

16 List from: Bri!1l Ross nnd Richard l!$p¢sito. Scurw TellABC News rep AI Qaeda Ffgure3Herd in Secret CIA PrDQnJ, ,
De«2llber 2005. eheeJced llglinst FA.TE AND WHEREAJJOtJr$ UNKNOWN: DErAflJEES iN THE "WAll ON XERRPR", The
C(!Dtel" for HumQII JUshts and Globa11\1Slice (CHROJ') at NYU Scl,\OOl of Liw, Dccanber ~005.
17 Robert Wlnd,etn, ..us bwt for 'pen jib.aclbt eIl,cls", NBC lVewJ, ~ November 200$,

i

I

18 CombatiDe tortutc: ~ mallQII1 fRr aenol!, A1Me~ In~t1orll!!. 200], See also HUllIan FJgh13 P.i.m, Bellied the Win:: All
Update to EMing StCTCt DetentiollS. MuWl200S. 1'30.

Amnesty Intemetional 5 April 2006

AI Index: AMR 51Jo5112006

UNCLASSIFIED
L0253

4. ~PR. 2006-'8: 27
1~

'AM~~~\,II~, f\MP~'!'"

UNCLASSIFIED

, ,USA: Below rhe radar ~ Secret flIghts to torture and 'disappearance'

.....-..'.

"t
B5

'1.7

Secre~,

detentions and secret transfers: the case of'
Muhammad Bashrnilah, Salah ~aru and Muhammad al...Assad
"Every day here is anoth~r day sfolen:!rom my lift.
Muhammad BasbJnilah, who "disappeared" in US'custody for 21 months and 'WaS
then arbitrarily detained in Yemen
II

,

Secret detention is the CQrollary of a secxet rendition programme. Without renditions,

~e US~run "black sites" coUld not eJdst The USA haS aCltilowledged that it is holdiilg
a iiu:mb~ of ''bi@ value" detainees - those whO are thou.ght to be leidiDg terrorist

B5

Suspects or. to have .intelligence information too sensitive to be entrusted to client
states. Rendition provides the means to trausport them to the CIA-ron system of
/9 H'Ilm4ft Jtis!llS Committe", 0cnmI COlDtllcllt 20, Artielc 7. pAn!. 11. A&~~ llIld detAiled II'gistcrs or dl:tainee.s arc rcljllind
un~ intclUtiOllallAw and standard&, inclllding 1he UN StilJ>dlltll MiI!im~ Rule$ (Qr the 'TrtatmOllt of PrisODet'S and tho W
.:Body ofPrinciplcs 1I)r tbo ProWcr.lllll of All Persons under Any fonn O(~ti01l or ImprisOJUll¢Jll
:lO UN Doc. I!ICN...n00U76. 27 December 2001. AMex 1.

-

21 Th,;;ob'l'cntion bou bot beel) adOf>lt4nltlJougb tl:;la IWS fuiola.ed in Sopttmber 200$: BlCN.41200SIW0.22/WP.JAUN.4. 23
S~erAbcr 100S.

'

~ ConclUding O~iOlU of tho ~mznittec at/lirUr Tortul'e: ~:lTemal~ UN Doc. N56/44. 6 December 2000. para.·73(0).
Amns,sty Intemational 5 April 2005

AI Index: AMR 51105112006

UNCLASSIFIED
L0254

.4. APR. 2006'18:27

P. 13

NO.77-t
11

USA: Below the radar ~ .secret flights to torture and 'disappearance'

eovert prisons that bas reportedly opexated at various times in at least eight coUIrtries.
A-ccording to reports. these facilities tend to be used in :rotation, with detaioees
transferied from ·site to site together) rather than being scattered in different locations.
Although the existence of secret CIA detention facilities has been acknowl¢ged since
early 2002, the term "black sites" was first reported by the Washington Post in .
November 2Q05.
The Qmy.public tesfunony .fr~ those:vho have b.eld in "~1ack sites" co~es from
three emem. men 'Mio CC(hsappeared" m US custody and were then held lJl secret
detention for, mote than 18 months, before being tetmned to Yemen in May 2005.
Muhammad Faraj Bashmilah and Salah Nasir Salim "Ali Qaru.23 • had been arrested in
Jordan before being transferred to· US custody in October 2003. The third D1ail,
Muhammad Abdullah Salah al~Assad, Wa:s arrested in Tanzania, also in 2003~ and
tumed over to US, custody a few hours later. Arimesty Inteniation3l first reported on
their cases in 2005, and retumed to Yemen to follow up in 'Febroary and March 2006; .
Muhammad aI-Assad was released on 14 Match. Muhammad Basbmilah and Salah
Qaru w~ conditionally released from the political security prison in Aden at around
midnight on 27/28 March.

r

.

.

Muham,xnad Bashmilab. and Salah Qaru were "apparently taken from Jordan to
Afghanistan in October 2003; other prisoners there managed to get word to them that
they were in Afghanistan; The two men have sepa:rately described a transfer flight of
ahout foUl" hours from JOtd~ which is consistent with a .tlight to Afghanistan.

It is not clear 'where. in ~ ~·th:~ ~<kbtrtit:io.esnot appear to be the .
same Afghan-run p:nson m Kabul m Wl~,~~..~.J~t-~was deta1ned at roughly
the same time. Kbaled eI-Masri, a.German cltiZen, bad been arrested in Macedonia in
December 2003 and rendered to Afghanistan, where he spent some four months in a
prison he said WBS roo. by Mghans but ,controlled by US officials. In ~y 2004,
. apparently realizing ~at they had the wrong ~ the USA flew him to Albania and
dropped him off on a. mountain road to make his own way back to Getmany. Khaled
el-Masrl has ~wn a detailed floor ~p of his Afghan prison; the map was
immediately recognizable to Walid al-Qadasi, a Yemeni national who had been
detained in Kabul in 2002.24 Muhammad Bashmilah and Salah Qaru, however. did not
recognize the drawiAg and insisted that there' were nO Afghan guards or staff'at their
:23 In plo"iow AmIlosty IntcmltiolUl dOOllmell!*, he bas beeD re!tm1l1O a.s Sahli 'Ali, or ~ S~ab NUJer SllIim 'All.
24 AIlmSSt)' llJlttustiOJW sboVle4 biln the map in ~h 2006. daY' after he \VIlJ fltIaUy relnsed aM mumed 10 his bom, ill
Yerotll. Wnlid el Qa4asl had been lfQIISferred to Guunlinl%M Bny from Atg1lWlltU. !rl2002, and 5PelIf ~rly two ye:u£ there
before blriD~ fdumed to Yemen In ~ :2004. He -wu ubltrarl1y dctnlntd in Y0ll\e1l for allllost two )'QAn. brtore being messed

on 3 March. He hilS never b~ cbllTlled. with any Qlfcnce. nor given any OXpl:l1lllUOll for the more ~n idlJ1 )'ellS ),e hllB tpcat in
dc:lClltiOIL

Amnesty Intemational e; ,April 2008

UNCLASSIFIED

AI Index: AMI!- 51/05112006

L0255

.

~

4.' APR:20Df> 1S:'l1
.

12

.

P.Mt~~"f\~ I\Wl()t\·,),)UNE:t~S'SIFIED

V~: Below thti radar· Secret Hights,

'i''!'"

to tortuta and 'disappearance' .

prison. Both men. believe that all of their 'gwirds and inten:ogators were from the USA.
although the translators included native Arabie speakers with Lebanese and Moroccan

'

~nts.

with a group of Himportant.
closely. One such detainee.
managed to tell them that he had not been. held perm.anently in anyone location; but
had been t1"ansported with the gJ'Oup from place to place.
The me:n told .Amnesty International that they were held
hi~ ranking" prisoner.;. who were watched over very

The security measures practiced in. the facility were faJ: stricter aild more roethodioal
than thosc described by other detainees who have been held in·.Afghairlstan!
MuhawlIlad Bashmllah and Salah Qaru describe a regime'in which each detainee·was
coDstantly and individually monitored. The men were held in complete isol~on, in
cells measuring about 2In x 3m. Thete was one ~era above the d~or and another on
the wall on the other. 'side ofthe cell. The inmates were permanently shackled to a ring
fixed in the floor; the. chain was not quite long enough to allow them to reach the dOOf.

If a guard needed to enter their room to take them. to shower or for interrogation, for
instance, they followed a set routine. When the gUatd opened the door, the inm.ate bed
to face the wall with his back to the door and his hands on the wall. The guard would
hood them' and handcuff them behind their backs before removing the shackleS. The
hood had a kind of noose that could be tightened 3.tound the neck if the detainee qid
n.ot move fast enough or in the right direction. Th
cIs were alwa c:overed, and .
wore masks
gloves, but the l11en said that ndne 0
em were Arabs Of Afj ans.
When ask howey ew s. ey
a e &lJStds "had a different kind of
phYsiquel ',

s

and

)

They were allowed outside for 20 tninutes once a week; when they were btought into
a courtyard with very .high '\1I'al1s and made to sit in a chait facing the wall. Once
seated, their hood was removed. ~ey were not allowed to look to the left or the right,
and a guard stood behind the;m to "enforce the mles"'.
. Muhammad al~A.ss.':id was arrested in Dar es Salaam, Tanzania, on 2,6 Dece.tnb~r 2003
and :flown out sometinle. before dawn the next day. Sources in Tanzania have said that
he was flown. to Djibouti on a small US plane. AOCOl'ding t6 press reports, about 800
s personnel,. part of a counter-terrorism. task force, bad been' located in ,Djibouti in
late 2002, and the site was known to be a base for the CIA's unmanned predator
laneS,:25 Speaking before thc' US Senate A:rm~ Services Committee in Mareh 200S~
GeneraJ. J OM Abwud noted; "'Djibouti has given e~aordinaty support for US
.
military basing, training,. and counter-terrorism operatioos".26

~

Muhammad al-Assad says that he VIaS questiQned there by US officials, one man imd
one woman, who told him they were from the USA's Federal Bureau of Investigation
(FBl); a picture of the President of Djibouti hung on the wall of'the interrogation
25 San Fn:ncf.1co Chro1/ick. 12 January 2003.

26 StueltI!:U{ o{Genc~ Jobll P. Abixllicl. OIlilt4 Statet Army COl'I1Il\llllder, Un.itc4 Staiel Centr.el Command, bet&tc th~ SC'tIatc
Am~

St:lVicelI ComtllJ~ tlll1hl> lOOS pOSl'Ufll oflhr:o UIIiU4 S1:del; C~ Commmtll, 1 Match 2005.

Amnesty lntematiOfial 5 Apn7 2005

Allndex: AMR 51io51/2008

UNCLASSIFIED
L0256

4. APR. 2006 18: 21

flMt t\. t \,tllt

/'\lYIllf\V

v,

UNCl:ASS!FIED
13

USA: 8elow the radar ~ Secref flights to torture ani:! 'disappeatr!Jnos ~

r-

i

.. .....
~

)

room. Muhammad at-Assad spent about two weeks there before being processoo. for
anoth~ transfer. This time he t:hinlcs he was in a larger plane as he entered it without
ha.ving his head pushed doW)J. or bending. He believeS h€;: was strapped down to a
bench and that the plane had a row of benches aloXlgibe side. He knows the flight was
long and that it to'Ltchee:t down once before flying on to. a plaee that was olcoM and
mudd.y'~. At this location, he was held in two different detention ~ntres, about 2040
minutes apart by ,oar, over unpaved 'roads, The first room was large and dirty, with a
rug and a high narrow "vindow; the second was smaller and darker, and the walls ~
covered in. graffiti. The bread' he was given there, be said, was from' Pakistan or
Afghanistan. Muhammad al~Asliad is diabet.i.~ and says tha.t he was 'not given proper
medication during this ~riod, so was often ditty or ill. It is not certain that he was
held with Muhammad BasbmUah and' Salah ,Qaru, although all three nletl were
transferred to the same final seeiet destination at about the same time.

At the end of Aprll2004, probably around the 24m, the men were brough4 one at a.
time. to be prepated for transfer. They were stripped naked before being given .
absorbent plastic underpants, a pair of knee length cotton trousers to wear over them~
a. cotton shirt. and a pair of blue o'Veral1~. They were handcuffed and their hands were
strapped to a belt around the Vlaist, their legs were shackled together and to the belt.
Foam earplugs were insetted in their ears. They were blindfolded and bad their
mouths covered with a SUtglcal faeemask, presumably to prevent them from talking.
, They were then' hooded, and tape, or a bandage was wtapped around the hood to
. prevent movement. Finally, a pair of heavy, $t:)tmd-4eadeDing headphones were
laced'o'Ver the hood. A similat proceSs was described by Swedi$b police officers who
witnessed a US-led renditions team preparlng two men for transfer in December 2001;
the re:Dditions team told them that the procedures had become policy for transportipg
errorist suspects, t~post 9/11....
.
,

~

BS

I

"You lose most ofyour senses", said Muhammad Bashmilah, "but you ean still feel a
bit, and on this flight I felt the presence of a n\lmber of other bodies swaying back and
forth." The preparations are. done very qmckly and professio~y, be added, by a
teaIJl of black masked 'C;ninjas" who carried ou.t the. whole operation in about 20
minutes. After he was prepared, he was taken to a waiting room for a couple hours,
so he believes there must have been a number of <:lthers undergoing the same
treatment.

or

Mu.banunad BashmiIah ~d Salah Qam said that this flight lasted three to four hours,.
M1lhammad ai-Assad thought the flight was longer. 'Whether or not they were on the
same plane fQt the first leg of their journey. all three'describe lan~ and waiting for
.an hour or so before being thrown roughly into a. helicopter witb a number of other
prisoners. All three noted separately that they felt ~ there were a .number of
prisoners being transported at the same time, perhaps a dozen or more. All three agree
that the helicopter flew for about two and a' half or three hours, and that once it bad
landed they were taken to the new detention ~entre by' car.
The size and location' ofthe final secret facility, where they spent 13 months. remains

unconfinned, Two of the men told Amnesty International in October 200S that they
believed this detention centre was in Europe. Other inioIIDation they. have since

Amnesty In~matl'on:~l 5 Apn7 2005

AJ Inde>f: AMR 51/051J2006

lTNCLASSIFIED
L0257

"

4. APR, 2006--l8 :28
14

,,/'_

..

'

1\~1t:!\i"/\I1 ~mLu'\"v'l

UNCLASSIFIED

USA: Below the rada.r- Secret flights to torture and 'disappearance'

provided, some of it confirmed or augmented by media reportS) indicates, a ,!EIDD8
Rgssibllity that the men were indeed held'in an Eastern European '1l1ack.site".
"

J

As Amnesty ·International has repo~ the facility was new or refurbished, and
carefully designed and operated to ensUre maximum sectirlty and secrecy, as well as
disorientatio~ dependence and stress for the detainees.'].? Wel1~stafted and resourced,
and highly organi,zed, the syste1l1 in operation there could nOt have been maintained
solely for the putpOse of interrogating low~level sus~ like Mllbammad ~ashnrl1ah,
Salah Qam and Mnbam:mad al-Assad.28 One of the Olen calculated that at least 20
people were being taken to the shower room in his section each week, although he
does not know whether the facility contained more than one section.
The men were initiall
. ed
a doctor or medic, who bad access to the medical
records that had been kept on,the men throu 0
(letention. At each tran,sfer. the
men said, they were stripped and photographed, front and back, and any wounds or
markS on their bodies 'were noted on a medical record, which followed' them from
place to place. Salah Qaru explained that the doctor used a template' dtawing. and that
.he has two scars 1hat the doctors always recorded. The scales used at their checkupS,
he noted, measured weight only in pounds, the unit used in the USA.2~

According to one of the m~ "all of the' guards and officials were Americans. One
doctor we saw was an Amerlcan and one spoke English with a' European accent. Of
the translators, some were native Axabie speakers, 3I\d some spoke Arabic With an
~ericmi accent." The director ofthe prison was one of the few' people they ever saw
unmaslced. When he arrived in late 2004. he told Muhammad, aI~Assad that he had
been sent from Washington DC,in order to decide who they should keep and who they
should send home. "You are at the top of the list to be return~» he told Muhamma~

. '.

aI-Assad.

. Although the men were never allowed outside. or even to look through a "Window,
. , they were given prayer schedules throughout the year. The schedules were not made
up by tIre" puson officials, but were doWriIoaded from, an Internet sit<::
, . - - - - - - , (islan1icfinder.org) which the men could see at the bottom of the printouts. On these
schedules. they sai4 ~ the time of sundown prayer over the coUr.se of the yeat
changed by over three hoUtS, from. about 4.3Opm' to about 8.45Em (including an
additional hour' fOt daylight savingtiiile). Such a de~ee of variation indicates a·
location north oillie 41st parallel. well above the Middle East, aI;ld very likely to be
within one of the member states ofthe Council ofEurope (CoE). Countries that would
£if the time range include Turkey~ Azerbaijan, Georgla, Romania, Bulgaria, Albania
and MacedoDia. They were also: in a loCation that observed daylight saving time;

B5

:2 7 l/nitdSutIU ifAmuicc/Yi!l1ltlJ1: SIt:Te1 D<1lemiQ" If1 CIA DlJlack Si~s~• .A.mnllSty Illl'etllAtiOJlllI,. November 1005, AJ 1II<lc;c
AM:R 51117112005.

28 The bet llltlt llle men "etC released, llult lIO t=orlsm-releled c1wGt$ ban ~Ol' !>teA bronsht aflllWt lbem,llPd lhllt tlIo

Y=nf ioV¢1Illl1cnt hlU openly said UllIt M suc:b evidculle \\A19tS aU !II.tged that tIIey were atOOllg lbe ~erml\eoll5 nnditSGl'Is·
roponedly hein; inv~ti£llted by !be CtA.
2~

8vcn countrie$ that sfJ1J use imperial meaS\1res. like !be UK 0"1 AalitraJi3, teneo-a1ly weaslml w6ight l». ,tone, rather ,thtll

pounds,

Amne.sty International 5 April 2006

AI Inde)(: AMR 51/051/2006

UNCLASSIFIED
L0258

4. Ap~. 2006 .IS: 28_ _ AMI:l<~\;f\N

P.MlSA~~Y

'tlINEf~ASSIEI.F,D

..
15

USA: B8/0W the radar· Seoret flights to torture and 'disappearance'

r·

f

wbich is observed in all CoE member states, but not, for instailce, in Afghanistan,
lordan or Pakistan.

O
_

. . . . . . .:,

)

Moreover, the men said that there was significant variation in th6 temperature. In
particular, they noted the extreme cold during the winter. By December 2004, they
sai~it was so cold tliat they. had to pray weariAg their blankets.'Even though they

were issued new sets 'of e]C.1ra warm blanke~ they say the temperatures were colder '

than any they had ever known..

The detention centre had an on-site inventoxy of some 600 books, again suggesting
that many more than 'three detiiiiees were held there, Most of the 'books listed were in
Arabic, .but thete were also titles in EnJ1isb. Farsi, Pashto. Ryssian 'and Indo~an.. .
T!i'e men said that the Arabic books usually had a white and gold stiCker, with Arabic
and English writing, namintt~ bo0ksllop in iYYshin$m DC and another in ~o.30
The detainees were ,gi:ven the book Ust one morning a week,. and ticked off their
choices; the book or books were delivered with their evening meal.
The men said that much of the food they were served seemed "EuroEean". once
also·
echoes the account ~vided in an I1..BC news report on a "black site" facility ~esedly
located in Poland. For breakfast, they VV'eJ'e sented two slices of bread with two
tri gles of cheese with the wrappers altead remov
an 0 urt
up. uneh
was
y nee Wlth tinne s ty meat. sometimes fish. or chicken. and olives Ot
. tomatoes: DinDer was more ofthe same, soxnetimes with some salad. Fot' short time
iIi late 2004, they saii4 there was a dish of "nQrma!" foo~ a spicy hot chicken with·
.onions, but that stopped aftet·R.amadSn.

D
,

.

)

in~uding'pizzawhich they had tle-vCr eaten before. ~ett aesotlj)tioll of the

meals

B5

a

On FridayS they got two fingers of a "Kit Kat» chocolate bar, again with the wrappers
removed (although the, name was on the bar itself); ABC news reported that Kit K.ats
were a favourite of Abu Zubayd~·a ''high value" detainee allegedly held in Poland
in 2005. )l Labels were usually removed from their clothes and their bottles of water.
They had some blankets and t-Sl'iiitS made in Me'&ico, While their water CUJ;ls. although
made in Chin;. had the .name and t~hone number of a US Comp~ embossed on

_

the bottom.
.• ..-.
The detention facility was aboilt 10-1S minutes by car via a bUUlpy. possibly unpaved,
road :from the airstrip. When. they got out ofthe car, they said, they walked up a tlight
of steps to get into the building, :then once inside the building they walked down a,
ramp or slope of some kind..,Their cells were new or refurbished - the walls were
freshly painted and bare of any graffiti or identifying markS. The toilet facilities were
modern - the ttl
ed that the toilets were W~st
ection
o~a (whioh they had been given for prayers), wl.:1i.£.h they thought meant they
were unlikely to be in. a Muslim country. There was artificial light in the cells. which
30 Amne~ lntllmatiOQaI 'hal COlllinned tbe .xistOllee otbolb beokshOpJ.

.

.31 BrilUl Ro.ss SlId lti~hard ~sposito. SOllrc;es 1"1111 ABC News Tc,p Al Qatd. Figlues l1eld in Seem CfI;. PtisOll$, 5 ~~ember
2OOS.
3Z ibid..

Amnesty Intemational 5 April 20()6

AI Index: AMR 51105112006

UNCLASSIFIED

L0259

AMERICAN AM~A~SY UJ~efE).Nil'r8~81HF""'tI-t"l-E+Df---n_v._,_r '__
"_'v
USA: Below the raaar- Secret f1ighfs to torture and 'disappearance'

4. APR. 2006-,18:'28
16

7

.,

was usually on 24 hours a day. On the few occasions when the electricity failed. the
men said, the cells were absolutely pitch bl~k. leading them to believe that they may
ha'\Te been in·the basement of the building.. "We don't have daylight beret one oftbe
interrogatonJ told them. "v,,-e have capsules". The men assumed that these capsu1e~

whit;}h they w~e given ,every moming,

con~ed vitamin

C or D. '

Although they were brought by helicopter, the facility was located within a 10-1$lute
drive of an airbase or airstrip that is probably not a comme+cial airport, as it only
reCeives light traffic. From their cells, Muhammad aI-Assad said, they could ~ar
planes taking off and ·landing.--.::.SOmetimes there were two or three a day," added
M'Ul'iaOlmad Bas1unilah, "but some days the~ were none. A week wouldn't go by
without planes and the most movement
on Weduesdays."

B5

was

The information that the men provided about the d~ti.on of their flighU3 provides
general indications of where they might Move been. However, without knowing the
size, speed and route of the aircraft, as well as the exact duration of the flights, th&
locations cannot be pfupointed.
The flight ~t I~ed the men. to Yemen. in May 2005 was separately des~ribed by
all three as a non-stop jo~y of approximately seven hours. The plane seems to have
been a small jet The men agree that there were about six steps from the gz:ound to the
door ofthe plane. and they think there weie probably two seats on the aisle. at least on
one side. They believe that they left in the early a.fte.moon and arrived at about 10pm.
An aiIport offioial said they might have arrived in Yemen in a mllitaIy plane.
although. the Yemeni gov~t bas thus far refused comment Given that cruise
speeds for likely aftclift vary from about isO to more than' 5.00 knots, the :final flight
eotl1d have been between 1,400-2,800 nautical miles (around 2,600-5,200
kilometres).3:J
'

to

The triangulation b~een this flight and the shorter journeys the men had apparently
made from Afghanistan to their final secret destination rule out locations in Western
Europe and the Middle East. If·the flight times given' by the men are accUrate. the'
initial. flight .fro~ Afghanistan CQuld have .reached Azerbaijan, Armenia. TurkeY,ot
Georgia or eoastal Bulgaria or Romania; an. additional helicopter flight of 15Q..180
tninutes from. such locations would have 'been wilikely to ,have gone more than 500
nautical miles (around 925km). A:viation ~erts note that it is not 'common for
helicopter flights to cross international borders. although technically possible.
Assu.raing that the flight from Afghanistan had reached Turkey, eastern Bulgaria or
Romania, possible sites for the final detention centre could have included Turlrey.

Bulgaria, Romania. Albania, Bosma-Herzegovina and the Slovak Republic.

enior Yemeni officials told Amnesty International that they had first heard of the
men on 4 May 2005) when the US ·Embassy in Yemen informed them that the three
w uld
flown to San:'a and transferred to Yemeni custody the following day. The

~

be

33 I\.:B~ B300 ha$ ,. moxilJll>n1 CtUilI~ speed of 311 knots, while eatlloin IIlOdcL!. ottbe Oulfitrellrn V Ca:II eruiso at up to S8S

knott. 'l'here 8Ie abo tuJboprop planes with the czpaclty IQ fly Sitl'C.Il hOUlli non·stOp; tho CASA CN 235, Cerr instaI1ee.lw a
, oruisiDg spec!;j ofabout 246 knob:. The mel) ss.id Ihey tild not hraf prcpeUcrs. or ceQse dte m)'tbm. but callnol be I:CI.UiD b~
Qflhe hett&J>1'lOMl &n4 e3t'plup.

Amnosty 'nt~mationaJ5 April 2008

A/Index: AMR 51/05112()()(J

~JNCLASSIFIED

L0260

4. APR. 2006 18: 28

tlv • • • I

17

. USA: Below the radar - Secret flights t~ tonure and 'disappearance •
....., ..............

~

any

USA :proVided no further infonnation about what the nien might have done, or
evidence or charges against the m.en, but Yemeni officials say they we:e instructed by
the US Embassy to keep the men in custody until their' ease 'files were transfexred'

from Washington DC. No files

'----

or evidence were ever rec&eived.

On 13 FebraatY 2006, after more than nine months in arbitrary detention in Yemen,·
and some two ~d a half years since they were :first arreste~ the three men were .
brought to trial in Sana' a. On the basis of statements they made during their interview
with the prosecutor of the Special Penal Court,u each was charged with forgery in
connection with obtalning a false trave~ document for personal use. None ()f the
alleged forgeries was presented in evidence. None of the men was charged. with an:r
teI'Iorlsm-related offence; the Chief of -S-pecial Prosecutions told Amnesty
-.J 'liitemation:a1 ttiat they were not suspected of any such offences. The men all pleaded
guilty and the judge had·it written into the trial-record that they had been detained ill
an unknoWn. place by'US agents. On 27 February the judge sentenc~·the men each to
two years jn. priso~ adding the insttuetions~ ~'to count the period that the accused
spent in prisons outside the country as part of the sentence". Be caIcu1at~d ~ in
addition to their nine InOntbs in prison in Yemen, their time in secret US detention
had been at least 18 months, and ordered their release.

B5

Muhammad ai-Assad was released from custody in SanaOa on 14 March. Muhammad

,----.....:.-,Bashmilah and Salah Qaru were traIaferred to A~ where they were ·released at
around midnight on 27/28 March. They were given. instructions to report 'to· political
s~cu.ri~ everr month and not to Ieav~ A'aen wIthout permission.
.

B5

The hUIilan cost of rendition and secret detention is too often ignored. Muhanunad at'-----------J,Assad told Amnesty Intemational on his release that '~or Ine now, it has to be' a new
life, because I will ~ever recover the old one·'. His business in nUns, he is in debt,
and he does not yet know if he will even be allowed to retup1 to Tanzania, where he '
bad lived since 1985) to try and rebuild the life he had made there.
'

is

The prospects are also bleak for Mahttwmad Bashznilah and Salah Qaru. The men do
not know if they will be reunited with their wives in IndoMSia, who have been tbrO'WJl
into destitution by their a~sen~. Even if they manage to raise the'money, they may.
not get pemnssion to navel to Indonesia. Nor will it be e~ for them to support
'themselves in YeIl1<;n. Even though they were never charged with a tettorist .;>ffence,
'they believe that they will remain stigmatized because they were detained by the USA.
Under suspicion by any pot~tia1 employers, and -~ed by the security and
intelligence service,'they fear they will never be able to lead normalli~es or take care
of their families. All three men have suffered emotional and physical trauma - Salah.
Qaru and Muha:mtnad Bashmilah have described severe torture dUtjng their detention
.in Jordan and are in urgent need of medical attention for problems caused or
exacerbated by the long months in isolation and secret detention.

Amnesty IntematlontJ1 5 April 2006

AI Jnaf!:x: AMR 511051/2006

UNCLASSIFIED
L0261

AMl:~l(;A~ AM~A:J:>1

4. APR. 2006-18':29
18

-rPNcr;ASSIFIED

USA: Below tt>s radar - ,Secret flights to torture and 'disappearance'

1.8 Transfer to tQrture: the case of Muhammad Zammar

The secret arrest and subsequent "disappearance" of Muhammad H~ydar Zammat has
all the hallmarks of a case in which an'inqividual has been rendered for the purposes
of iutem>gation under torture. M~amma.d Zammar, a Gennan national of Syrian
desce.-(lt was s
eeted of involve'
e •
Cell" - a ou that
inc ed the, presumed leaders
the 11 Se tember 2001 attacks in the USA - and
ha~: !'<'en under surve ance in
rman)! for some years. He was qu~oned by
, German police after 11 September, and was' brought before a court in Hamburg less
than a week later. There was not enough evidence to hold him, but the Federal Public
Prosecutor initiated an' inveStigation into am~gatio1\S that he had. "supported a terrorist
organiza1ion~'.3S Intelligence information suppllea. by Germany is ,'thoUght to have
been iostl1:tmental in his arrest in Morocco and rendition to Syria.

of

On 27 OCtober' 2001 Muhammad Zamm~ left Germany for Morocco, ua-velfuig on
his German 'passport, and spent soine weeks there and 12 days in Ma.uritius before
attempting to return to Gerniany. He was reportedly taken into custody by Moroccan
intelligence agents at the aiJport' in Casablanca m early December, and was then
interrogated by Moroocan tuld OS mteillgence officials for over two weekS. 10waids
end of December 2001, he was repoi"fed1y put on tlie CIA's Gulfstteam V jet,
N319P, and taken to Damascus. Syria. A US official declined to provide details on
whether the USA was directly involved With Muhammad ,Zammar's captuie or
1raDBfer, but said that the US govemmept was aware of the detention and the transfer
as they occurred. ~6

the

The German government was reportedly not wooned of Muhanunad Zarmnar's
the US~ MOJ;occo or Syria, and leatned of 'the tra:tlSfer through media
ports d'U1iD.g June of 2002,37 While US officials have said they do not have direct
ess to MuhWl1;tnad' Zammar iri Syria. they hav~orted1y provided wri~n
estiODS 'to his Syrian interrogators. Murbaf J ouejati, ~ expert on Syrlan :poP~ and
lO.n:ner ,aaVlser to tb:e Synan govermnent;. testified befoie tht 9/11 Commission:
'Syrian cooperation was also highlighted by an earlier revelation that a key figure in
L--------,Ihe September 11 plot, Mllhammad Haydar Zammar, had been arrested in Morocco
and sent to Syria for: interrogation, with American knowledge. Although US officials
have oot been able to intenogate Zanunar. Americans have submitted questions to the
Syrians.,.38
,
,

..---'_,:,:,,:,-_~,uest by

After learning through. the media of his arrest and transfer, the German government
repo:rtedly ordered their intelligence agents to locate Muhammad Zammar, and was
...-------, ,subsequently infonned by US officials on 13 June 2002 that he was in the ~ustody of
the Syrian government. In November 2002, 'six German Uitellige.nce agents arrived in
Damascus and interrogated Miiliammad Zamn::l3f for three da1.8, f'Jo details of these
interrogations have been released or used in other investigations; as ~er Spiegel
,

B5

B5

,

35 Roiger Sratk, ''lM FQYgottell prisoner: A Tallf ofI!xlrllord.ino.zy Rc!Idilioll$ &lid Ponble-5tandl.l'ds", tier Splogel, Novemb«
2005.

'

Recrnitu R,qx>rtedly 1'ol'1UreCl". Tf'Q$hJng/ClI Post, 311~uat)' 2003.
" - - - - - - - ' 37 pcncr Fimi, "Syria Interrogating AI quda Rtenliter". W<Uhmgton 'post, at.A01, 19 JllllC 2002J6

p~ FlnD. "AJ Qned~

38 S.,.,; htlp:l/'l"\\lW,Slob3.lseeurity.Qrglsecurttyllibrary/CQJlBressI9-11_eqllmli.ssioll!O~0709::iQuj ..ti.hun.

Amnesty International 5 April 2006

AI Inc/fIX: AMR 51/05112008

lTNCLASSIFIED

L0262

4Ac.:::.8;:;. 'S; ;:o. ;I=F.. =I=E=D_ _'~tv,.......'r~II_ _"_LI
4. APR. 2006~'lB:.;.;::2:.:...9 _ _A_ME_R_IC_AN_A~MB_AS_S_Y_l1J1N.;:;...,:;;;-.:...;:€?;;..=!j=
19

USA: Below the radar - Secret nights to torture and 'cJ/sappearanc$'

,.---,,)

l

...--__-,

magazine noted: "no coUrt operating' under the, rule of law would ever accept an
interrogation conducted in ,a Damascus prison 'notorious for its torture practicesn •39
German diplomatic officials, on the other hand, tlave not been able' to visit

MulMiirnaiizam:DUii'; tiler have .filed eight notes verbale seeking clarification of the
reasons for Muhammad Zammar's detention and, Seeklng a lawyer for him. Th~
Syrian government'has not responded to these notes. 40
,
.

B5'

I

In early 2003~ a Morocean national. recently released from the Far' Falastin (palestine
' -_ _-.J

Branch) of Militaty Intelligence in Damascus, said that Mub~mad Za.mmar was

being tortured by Syrian,officials. The funner CIA official Robert Baer told Aronesty
Inten1ational that he had SOUght an intery.iew with Mubammad Zammar in A,pril2003,
while working in Syria for a US t~levisionnetwor~ but was told that "he is no longer
with us", In interview with a Swedish television channel, Robert Baer said: <'there
was not enough evi~~nce obviously that he broke US law. but we still wanted him off
the streets so we ~ed with the MorocCan government to have him arrested, sent
Jordan and then to Syria where he is 'either dead or alive. I don't know, Wit1l1he
Syrians ~gagitlg in torture, there is no bones about it..,,41 There were persistent
reports that Muhammad Zarnmars physical condition had deterlora~ and even that
he had died.

an.

to

In 2004 Amnesty International learned through fonner prisoners that Muhammad
ZaInmat had been beld in. solitary confinement at the Far' Falastin since he was
brought to Damascus in late 2001. His underground cell was believed be 185cm
long. less than 90cm 'Wide, and under 2m high. Although photographs taken before he

to

)

. left .Germany show him as 'a large. heavy-set m~ Amnesty International was told
that his condition was now ·~sbletal'·.

, I

Former detainees have told Amnesty' Inteolatio,nal $at the underground section. of

Far' Falastin is infested ,~th rats and lice.. There is no bed or mattress in a "toDlb" cell,
just a eo~le of 61d and :filthy' bIdetS. One plastic bo~e is provided. for drinking
'Water, and another for Urination. Three short visits to the bathroom are allowed daily - usually fu:nited to several minutes each time, with '10 minutes allC?wed on Frldilysto
also take a shower or bath and to wash clothes. AccCC§$ to fresh. air and sunligpt in the
yard is resmcted to a waximtml of 10 minutes each montb~ but can be as infreque.nt is
1<y. mInUteS ~h six to eight months. Released detainees have told Arriii'esty
Int6tmu1onaI that the food provid;f is barely enough to keep a person alive. Md is
often. rotten and always dirty. resulting in 'frequent pouts of diarrhoea.

B5

Torture and ill-treatment are' eOmxn,only reported at.Far~ Falastin. In addition to the
prolon.ged solitary confinement in Cramped and wretched conditions, detainees are
commonly beaten or subjected to other methods of torture. ~sty International has
documented some 40 different types of torture and ill-treatment reportedly USed

against detainees in prisons and detention centres in Syria.

.

39 Hoiser Stan:.. "A Talc'o{:Ex'rrtordinllY RenditiOllS nd Doublc-Stlllldartb~,D'r$pilfg,l. November 20OS.
40 "Oemlnn, CIA Roles In Tet:rOr $~C¢t'$ 'l'ol1Urc lA Syria", nac MOIIilOrinl: !Dtcr:narioml Rep=. 22. November 200S,
41 $"II1IJ02 7Y'(, Kll.1ll\ f'alall. l'roST.m'lme, bToadcasr12 November 2004,

Amnesty International 5 April 2006

A/Index: AMR 51/051/Z006

lTNCLASSIFIED
L0263

"

4. APR. 2006-18.:·29--AMERICAN AMBA~~Y
20

"'---,,

.

)

lVN<2ttA.J88IFIED

t ......

,

f',~_

USA: Below the radar" secret fflgh~ to rortUI'9 and 'disappearance'

Atunesty' Intemational reeeived information that Muhammad Z3mmar was taken .from
his solitary confinement cell in tho Far' Falastin in October 2004. He may then have
been held in Sednaya prison on the outskirts of Damascus. His fainily in Germany
was given their first real indication that he was still alive .when a letter from him,
dated 8 June 2005, was sent to them through the International Committee of the ~d
Cross (lCRC) in DamaScus. The letter, which contains jUst 43 words, suggests that he
~ returned to the Far' Falastin. His current whereabouts are unknown, and he
has yet to be seen. by his family or anyone known·to them sin~ he was first detained.

0

5

1.9 A practice predating 2001: the case ·of Abdul Rahman al)rafi
.
.. 'We're going to .kill you and bwy you here ~ they
wishing that they would 'r

t~ld

me. and all tM time I was

Abdul Rahman al- Yaf'i, on his intmo~ation in Jordan in 2000
Although shipping people off to third. countri~ for "vigorous" interrogation has
'become a 11l0re common practice since September 2001, it was already an established
means of tJ:y41g to gather intelligence about al·Qa-ida. ·A network of b;1telligence
agencies from different countries helped to carry out the practice of renditio~ and US
involvement may not always have been' direct, although the aiIi1s and results of the
interrogations were the·same.

Abdul
Muhammad Nasir Qasim al-Yaf'i, DOW 38 years old, was one of the
pre-2001 Mime eir.eaditio. e sp e 0
es Internauon m e
about his rendition from Bgypt to organ five years.-b,efore. As with most of the other
:rendition victims interviewed by Amnesty International.4Z, ~s m.tCIrogatjOns did not
appear to have been aimed at investigating a specific criminal offence, but at "
gathering intelligence about .the activities of others. As in the cases of Ml1barnmad
Bashmilah and Salah 'Ali Qaru described above~ it appears that the standard of
evidence needed to' warrant months of torture and interrogation was nothing stronger
than his admisSIon of a previous visit to Afghanistan.

B5

Abdul Rabman al-Yaf'i, who lives in Sana's in Yemen with his, wife and six children,
,said that he' took his aunt and' brother to Cairo in Egypt for medical l.1'eatolent in
October 200'0. When he told airport imnugration officials, in respo~e to' a question.
that ~e had visite(l Afghanistan 10 years before, they detained him at the aiIport for
about 13 hours, then told him he would have to return for his passport When he came
back for it two days later. an Egyptian policeman cuffed and blindfolded him. and
took him to a place where they put him in a cell so small he could not stand upright.
When he asked why they were holding ~ he said he was told ''we just want some
general information".
."
42 Most oftbe felI4ition ~ctims inferviewed by .-.mnosty IDtenwioaallurVe beell reJea,ed, susgtStlng tiat their CllpIOlll
detC1D1i12eO tIIey did not have v~le 01 specilie infonnatlon. Their expcrlc:oc~ of Ul1e:rogarlon m.:>y tb~fore be 8Ilbpamiveb'
di1l'e:eJlt from !hils(l who Ille bcll<:vell tQ have "high nlllt" inrelligence.
Amn5',sly lntemsb'onal ~ Apn7 2006

A/-Index: AMR 51105112006

lTNCLASSIFIED
L0264

4. APR, 2006_18:29~·~~AM~E~RI~CA__N__A
__MB__AS__S__
Y 4__
~.~]J__
~__S__S__I__
~__I~
__·_I)_

NV__
. '__'__
I

f__
' lJ

USA: B9/0W the radar - Seoret flights to torlure and 'dfsappearanc:e'

:---.'-~'--}'

D

After sQm~ hours in. the tiny ce~ he sai~ they took him. to interrogation. and began.
and sit down over and over again. They
calling him Iiatnes and making him stan~
.asked him repeatedly about what he had done in Afghanistan, where he had g~ and
whon'). he had met there. He was
stioned about bombings in Kenya., Tanzania.
and Ri~dh in
ot answer.
e ~
tlie_while insultin<r his arents wife and reI 'on. He was tertogated like •S
tbiee times a y. ''1£ they beat me in Egypf'. he said. "it would have been more
bearable than what they did. •• They accused me of everything that.ever happened in
the world••. perhaps it is the price you have to pay for having been in Afghanistan».
They asked him to work 'With them,· and offered to put his aunt ~d brother ~ the
"finest hospitals in Cairo". He refused, and they .told hinl he would now be ~ed
over to the USA.

uP

Met four da.ys~ they l'etumed. him to the a..irPot'tt where they took him through the VIP
entrance and straight to a waiting plane.43 The plane: was ''full of .tnilitaty, you cQuld
feel th~ presence of military' eveu if it was a civilian plane.» He says he kept asking
what was happening to hiJn and where he was going, but eventually '~stopped asking
questions because there we.:e no answers". He said he was surprised when the plane
took hiJn to A.nnnan ahport in Jordan, where·his guards handed him over to Jordanian
seemt}'. He was again blindfolded and taken by cat to a detention centre~ wErch he
eteScifbed as a new building, about four stories tall. with good facilities. He thought it
might be ~ General· Intelligence Departin.ent ~ukhaba.rat at·' amma), which is
.indeed a modem building, located near Wadi Sir in Amman. about 30 .tninutes from
the ahport "1 was. exhaumed from the Egyptian texrorism [sic] and asked for som.e
medication," he said,. "and then I prayed and sleptt>. .
.

,

B5

.

The next evening he was taken to interrogatio~ cuffed and blinMolded. and was told
to 'Write down everything that had happened in Egypt. After he finis~el\ he sai~ they
kept asking hhn 'Ido you love Osama bin Laden?". al1d then the)" beat him and forced
him to stand in his cell for more than 24 :hours 'Without sleep. '

=

The following ~ve:oing, they took him to a covered yar~ where he saw large stains of
what looked like blood on the conetete ground. His ankles were tie~o: s~ and
tw~oldiers picked it up :&oEn
~ ~?e ~~~own
above the ground. They then took
- -~0a ~- - the stick they
were using broke. "They reach a point where the blood. is about to come out of your
feet/ t he said, "and they stop there for a little while." There was a man in white
clothes, who he thought 'WaS a doctor, supervising the proCedure, and giving
instructions on how long and how hard he should be ~ate.u. Fa/aqa, sleep deprivation
( and long-term. &tandlng are commonly used forms oft~rtur~ in jordan.
Abdul Ralunan al~ Yaf'i felt that the interrogators were fishing for information. "They
just kept saying •confess, confess. Confess to Ken.ya. confess to Riyadh.' I kept
saying the Shahadah .[Muslim .statement of faith] and ~ey kept beating me and
43 The typlC4l proeessint of trW fer illr renditiQU - U1ctwllng th~ hOoding, sha.ckllng and jumpS\1its.;. _

OSt:\blUhed Utef 11

September 200J,

Amnesty Int&mationa! 5 April 2006

AI Index: AMR 51/05112006

UNCLASSIFIED

L0265

-- .- , 4; AP R._20_0_6_1_8":_29~ __A..-ME_RI_C_AN_A_MB_A_SS_V._U......;N-..G....-..;;.;,fs.-.A:B=.:..:.S_I_.F_IE_D
22

lw. I /

l_~.

n

USA; Below th8 radar· Secret flights to torture aM 'dfsappearance'

mocking my re~igion:' When his feet swelled itom the beating, they took him. down
and made him run mound the yard, then made him. stand in salt, while they poured
cold water on his feet to bring the swelling down.. Then they strong biIil back up and it
started all ove.r again. On the :first day,this'bappened a.t least three times. eeThey told,
me: 'We're going to kill you and bury you here', and all the time I was wishing that
they vvould. ~t
.
He '<~ppeared~l in Jordan for more than four months. His family never' discovered
his whereabouts; a brother living in the USA came to E:gypt to search for him, while
members of his t:9be mad.e persistent inquiries With the Egyptian ambassador in ,
Yemen, who finally said that he did not know where Abdul Rabmau al-Yatti was,
only that he :had left Egypt. '.

,------_-rJ"'lo,Abdlil Rabman a1-Y~i told Atnnesty International that about twice a m<;>n;tb, when

the leRe visited the detention centre, he and oilier dewnees were told to gct'lheir
things togethe-r and the would then De taken to 11hdefgxoiiiid cellii~ which·he tbink.s
m1
:ve bee~ undemea: the kitchen. In these cells. he an other prisoners wrote
their names on the walls with the soot from. the lantern wicks. He was ~t held in the
same cell every time and co\1ld read OJ). the walls the names of other detainees; there
had been Saudi.s, Palestinians. Tunisians and Egyptians there.· He thinks he waS
mo"Yed with about a dozen othel' people each time.
.

The'interrogation was intensive for the :first week or two, and after that intermittent,
but always focused OIl general iDformatio~
was often shOVlIn photographs of
, people•. most of whom he said be did not know. Thxoughout interrogatio~ h" said,
they- wo~d smack him (here he.mimed a full back and forth open-handed blow) until
his face swelled. He told us that even now, after five years, hi3 ears are'sti]] ringitlg.
There were three or four interrogators, he said_ and "you really felt like they had been
specially trait1ed to insult religion, in particular beards... What I was m9st worried
~-----, about all ~ time I was there was being raped. The interrogators threatened me tens of
times ~th...mPe. I kept the same clothes on all the thii'e:.I was there, I didn-t
my
robe off e'Ven w.hcn· I went to t.be washroom, I never washed my cloth.~ I hoped that
the smell woul~ put them off."

B5

He

take

B5

Abdul Rabnian al-YaPi was .returned to Yemen in March 2001. One day guards came
to his cell and. told him they were sending him to the USA, a threat he said that they
often used. Iostead, he was taken to the airport with another Yemeni) where they were
turned over to Yemen1 ~uards and put on a Yemeni aixlines passenger plane.
When the plane landed in Sana'~ he was taken 'directly to the Political Security prison,
where he stayed for just under two months. It was better in Yemen, he said, nbecause
they didn't. hit me".· When h'e asked why they were holding him, the Yemeni
authorities said: "American pressure". He believes that his eventual release was due to
the insistence ofpowerful tribal leaders.

.

Abdul Rahman aI-Yaf'i knew of several other cases similar to his own) but said that
most of these people are too fJ:'ightened to talk to anyone about their experiences, - a
point which underscores the difficulty'of getting any precise idea of the number of
people "Who may have been sUbj ected to rendition.
Amnesty International 5,4priI2006

AI Jnde~: AMR 51/05112006

lTNCLASSIFIED

L0266

- ' '- 4. APR. .:;. 20..:;. .;06;. . 1;.;.8.;.,3-=-.O
; : ~_A~ME~lCAN AMBASSV.
24

UNfZl54'tSSIEIED

NO. IIl_r. Lt)

USA: 8elow th$ radar- Secret flights to torture and 'disappearance'

2. Planes and airports·- the sUPPQrt network for·
rendition flights
"Yes_ It's very comenient. It's finding someone else to do your dirty work. ..
Michael Scheuer. who as a senior counter..,teo:orism official with the CIA, helped·
.establish the rendition programme

.

2.1 International aviation law and renditions' .
The Convention' 'on Internanonal Civil' Aviation, also known 'as the Chicago
Convention, establishes the rules of airq,acet plane registration and safety~ and ~sets
out the rights of tM signatory states in reiation to air travel It establishes a system
under Which all·tra:nSit and landing rights· for airlines and their aircraft requite the :
explicit or ta.clt approval ofthe natloila1 o:o"e
ents in or abOve whose territory they
o
e. The cU1'Ient-v.ersion of the Convention was adopted in 2000 and it .baS 89
OOfi.'fticting states.44
.
.
Of particular importance for rendition cases is the claus~ that allows private, non,..-------, connn .
•
un: or make tee .cal sto s there without
Uthorimtion or notificatiQIl. The CIA planes identified to date have been ch ered..
frotn private eomp~es. l'eal or fictional, "State aircra:ft» - defined by the Conv~ntion,
as those "used·.in.· nrllitary. customs and police serviees" - do require· specific .
agreement or authorization to fIy over the tenitory of another state or to use its
aiIports. Experts On rendition believe that this is one of the main reasons why
privately contracted aircraft are used in rendition operations. rather than.militaty or
other official aircraft.

or

The intelligence and military community ofthe USA has 10

for secret op

ons.

used rlv

B5

IS

S l e d by past US

congressional
m4ffiiies and otner investigations 45 are still in business. In November 2003, for
example. carriers such as Southern Air. Kalitta Air. Evergreen rnt~rnational Airways.
and Tepper. Aviation ~ all know.n for their connections to covert intelligence and
military operations - received a '.'US Transportation Command Certificate of
Appreciationu for their support of Qpe:rations Enduring Freedom and Iraqi Freedom,
in the "Global War on !errorisrrl'", 46
0

44 fur1ll.cr infOrmllticm: 'Enalllillg TQnnre: Iorem&tiolllll1.osw At>Plicllbl~ 10 $tlltlll'BftlciplltiOD in the Unlawful Aeti"itl~ 1)£other
Stlltes'. :srWin3 Pnper by Tbe center for H\1mlID ~ghl$ IlJl4 Global1uuic:e, Now Yoclc Ullivt.r5[ty School OrLlIw, Fe1mwy 20t16
45 Ariacmc'p Thread, tep~tD the MacArthIlf FCl1'lldalioD, 2003; J Peleman, Th~ logl&tiea ofsanctian busting: !he 3irbOI1l0
.

~omponent, I.n Atlgola'S WarJ!l:ODOmy, Pretorill, JSS, 200(); Ne1her1and~
bttp:l/.213 .2223,sJ"eQIttliCll! Appendix JL

Tn~

for Wilt DocumClltlllion,

46 USnv.:NSCOM News Strvi~ lteleilSO 'NlIIllber. 031113-1, 13 Noycmbet 2003.
~nfJsty Intemation<¥ 5 April 2006

Al Indsx: AMR 51105112005

UNCLASSIFIED
L0267

NO. 771

4. APR. 2006 18:30
USA: Below the radar - Soc;ret flights

P. 27
25

to torture and 'disappearance'

l

system were established in 1995, the CIA needed the means to locate, detain and
remove terror suspects.47 A small fleet of private jets able 10 .land discreetly at both
commercial airports and US military bases worldwide was the essential ingredient for
making the system work.
'
.

2.2 CIA-front companies
The CIA rendition programme bas relied OD:pnvate planes con~eted from companies
listed as private air charter services. In some cases, these are CIA front companies that
exist only on.paper. Premier Executive Transport. for instance, first appeared as a
Delaware company in 1994, and was then,r~Hegisteredin Massachusetts in 1996 as a
'~oreign Co:(})orationt ,.4'·It listed a President and Treasurer whose only known
addresses were post office boxes outside Washington DC, who appeared to have no
credit or ~sonal history, and who both had Social Security numbers issued in the
mid_1990s.411

'

.'

.

Premier was the listed owner of only two planes: ~ Gulfstreamjet most frequently
identified with rendition operations, originally registered as N379P; and Boe~g 737,
initially N313P. which a.ppeared regularly in locations such as Afghanistan, I,.ibya.
Jordan, Baghdad, Germany and the UK, and which Amnesty International believes
was used. to render Khaled el·Mas!i from Macedonia to Afghanistan in JanuarY 2004.
Flight records show that the plane flew from Skopje to Kabul, touching down in
Ba.ghdad, on 24 Jan-uary 2004, the ~y Khaled el·Ma$rl was transfeaed from
Macedonia to Afghanistan. Both. planes had previously' been registered by Stevens
Express Leasing and Amnesty International has landini declarations showing that
both continued to identify Stevens Express as their operator in 2003 and 2004.
Stevens Express has an office address ii1 Tennessee, but no actual premises, although
-it currently appears. in US Federal Aviation Administration (FAA) records as the'
operator of fout planes.:;1) Stevens Express was in tum incorporated by the same
lawyer lis.ted as the' official representative of Devon Holding, another ,company ,
identified with rendition flights. Premier Executive Transport ceased operatioIlS in
late 2004; the Boeing's ownership was transferred in November 2004 to Keeler and
Tate MaMgemen~ another non-existent front company with DO other planes, no
website and no premises. A f~w days later, the Gulfstream. was transferred to Bayard
Foreign Marketing, a company whose named corporate officer. Leonard Bayard,
cannot be found in any public record.

a

)

Other txansport contractors have actual premises and staff, but appear to be largely
controlled by the CIA. Aero Contractors, for instance, was.described by the,NeW York.
It7 11ZllS Mayer • "O~urcins TOI1Un:", N~ Y";'hr, Fllbl'UlllY 2005.

48 ~utcllS

~&im'WOb

c.ertltlC81o SZ18572!l2. ~ ~e 'l'i~d at;

Jmp'.1lcorp.sec,slatUIl.. uslcorp/corp5CareIVCorpSu.tebSUDmWY,lISp?ItelIdProrn!)~True&TJpdatcAJl~wc4=&;t'EIN=
SllSSTl92..
49.All US citlzeus aN now xequ"'"t! 10 llave a Soelnl Security 1l1lmber before their first blrtbday. The US $ociJI1 Sec:witY
. . Adrohlblntiou mid the ~o&t()n Globe that those wIlo receive their rllunbm III a4ulthood an ellhet recent immillttllt! or peoplc
being given It DCW ionstily. Fanh Stoc!<.mJu, TcuQl' Juspccli' torture cWms hllvc ~s"c:hu8c11s Link, 29 Novmlber 2004.
50 FAA RcSI$l1)' mqui.ry, 22 Much 2006, see: bnp:J/reglstty,taa.,ilVlairmftil\lluily.

Amnesty IntematJonal 5 April 2006

UNCLASSIFIED

AI Index: AMR 51105112008

L0268

.~.

AMERICAN AMBAsUNaL~IFIED

4. APR. 2006.... '9:.30
26

,

".,-

........

,

)

Nt).1I1_r.L\1.

USA; Below t/19 "ada~· ~ecret flights to torture and 'disappeara"c9'

.Times newspaper as "a majm- domestic hub of the Central Intelligence Agency's
secret air service". The New York Times went on to say that the CIA. owns at least 26
planes, and ."concealed its ownership behind a .web of seven shell corporations that
appear to have no employees and no function apart from owning the aireraft. The
planes. regularly supplemented by private charters, are operated by real companies
. con'trolled by or tied·to t4e agency; including Aero Contractors ~d two Florida
companies, Pegasus Technologies anct"Tepper Aviation.,)$l
.

In other cases, the CrA leases their pl8tlcs from ordinary chattel' agents, suc;h as
Richmor Aviation, which the Boston Globe newspaper identified as "one' of the
nation's oldest aircmft chartering and management companies..·. The CIA has made'
. frequent use of Riclnnor's Gulfstream IV, N8SVM. later N227SV, ,which has made .
over 100 tJ:jps to Guantinamo' Bay' and which appears to have carried out the
renOi'fiOn. of ""A6u
:from Ramstein to
in 20 3. 52 The plane's OW.ller
co
to e oston Globe in March 2005
he charters his plane through
Richmor to the CIA, as well as to other clients. The plane is C'Un'CXltly adverti~ for
of USS5,365 per h o u r . '
'
charter at a

omu

cairo

rate

Individual aircraft may cha.n.ge their registration numbers, bu.t they remain largely
ttaceable. Given th~ concentrated att~tion now being devoted to tracking rendition
ffights, it seems that the intelligence sexyiceS have now dec~ded that the .notoriQus
Gulfstrea!n V, variously registered as N379P, N8068V and N44982, has' become too
conspicuous. It wa$ put uP. for 'sale iIi November 2605; the adyertisement on
www.usaiicraftsales.com emphasized its "16 pax capacity, dual DVD play~ mid
and ~ seating in Brown leather, and Walnut matte finish woodv.rork",.but the plane
bad . to be '·priced below market" due to its heavy usage. $3 Premier Executive
Trao.sport itselfseems to have vanished as well; there ate no planes registered with the
compan.y and its landing contracts eJCpired in 2005 and have not been renewed, ~t is
likely that other C9m.panies have been created to take PI':mier's place, and that other,
less wen-known planes are now be~g used for CIA rendition aCti\ities.
It is likewise the case that the number offlights carried out by the planes identified for
monitoring in this report haye fallen over the last year. This does not necessarily
indicate that renditions are not being carried out. but that companies and aircraft
previously. involved in the programme are being replaced, making the rendition
prograp.nne increasingly difficult to monitor.

5l Scott S~e. Stel>hm o,ey ~Dd UargOf Willi:Jmll, CU Upandi1lg TIrl'C7 BmtJfJ

l.JNler: GIJin o/CMrJerFl/ghU, N_ York

.Times, 31 Mat 2005.

S;t Abu Omsr. an EtyplQ elerie, -..u kichU.ppa4 in Italy and t!q. ftoWQ ~Il. this jf:t fz:Qm GtmIaD)' to Et:YPt.
S3 bltp:!twww.\lsairl:ratUalc...coml1.Pn&lelSP!CS.Yc20GVo/e20581.VuO..A.202.JlC!.

Amne.sty IntGmational 5 April 2006

AI Index: AMR 51105112005

UNCLASSIFIED
L0269

4. APR. 2006 '18:'30'--·AMER1CA~ AMB"SS~

4~Gfi~.sSIFIED

NU. I II ' 'r. p

27

uSA: BelOW the radar - Secret (fIghts to torture and 'disappearance'

documents obtained by Associ(I/ed Press (Ap).S4lf1 September 20(5).Ai' reported that
the Na.\I}' Engineering Logistics Office (NELO)sS had issued classified contracts with
10 different companies and 33 planes for the ~occasional airlift of USN (Navy) eatg~
worldwide." This was the first indication that the DoD had participated in the
rendition programme; the. companies previously identified as operators of rendition
planes were widely believed to be under CIA contracts.
According'to- the AP article, permits to land and buy fuel in US bases woddwide were
gran1ed 10 aU of the 10 companies under, NBLO contract'between 2QOl and 2004. The
2004, 2005 and 2006 contract lists exau:rined by .Amnesty 1:nternation~ show' that
permission to land in US bases worldwide is currently held by 12 companies, but had
previously been granted to. a total of:; 8 companies. among, them Aviation Specialties;
Devon Holding &; Leasing; Path Corporation; Rapid Air Trans; Richmor Aviation;
Stevens Ex'p~ess Leasing; and Tepper Aviation, all allegedly involved in rendition
operations through one or more, of their planes. $6 Many of these companies also
appeared in lists of commercial agreements for buying :fuel under US Defense ~nergy
Support Center contracts.s"
.
There have been other' indications that responsibility for the rendition p1'o~e
should not be laid solely at the door of the CrA. It has be~J1 ieported that the teams
that 3ctuauy c'arry out the rendition operations include members of military Spe¢ial
Pozees units, as well as, CrA personnel. Amnesty International has copies
poliee
iilvestigation reports into CIA flights in Spain that suggest that the pilots of .the
rendition planes were US military office~; wheu ~eit names were checked against
FAA databases, it was found that not all were cunently registered as private-pilots. If
any pilots involved in rendition flights were fo~d to be US military officets, the legal
implications would be important mem.b~rs ofthe armed forces ere not only subject to

ot

I

~

B5
I-

Serb J.lcneU, Ntn)' SecmIy ~et4cl Jt:4s u.ed by CIA,. AssOci..W4 heu, 24 September 2005.

SS :Furlhtr rc$ell.rClI COllied out by AmzItity IJu.cm3doll" bSll sllo'W thai dle OI1Scc', Dame aIld address ~ n:m~ fi'clll tho

US Dol)',DARF ~~ Federal AcqllI5lUoIl.ll4.O\lIatfClD$ Supplemtm -,Appeocfix O. A£"tivily Addl'w N\lDlbm) March 2.000.
NEW Waf tnltlJ 1999 Ibtcd ill Appcn<fix'(J wjfb the iderJtiflcatlon n11llWU N411S6 Md addressed IS NaV)' EnGin~~ Loglsti«
0fIi~ LE WSllhiDatO~ tlC 20000. Sill" l4 November 2003, Appendix G bas b~ t:II1irCJy rtn\Oved from l1le ~ fede.raJ
Acqaisftioll :R.tliuJ,nrIODS SUJlpll21l~t. (See: bt1JJ=lJfll'Sitc.bm,ll!milI~veIDl":l/'SIl:lcNJ99901 O!IDFARSApxG.blm,

bttp:lfw,ww.<ll::q.osd.miIfdpllpldal"'~lttI1Ipre'l'fouslaOo:nOOl/a~..B'.3.1~tm). NELO aI$O app~ Jl! l:OlIU'aJ:t/lIg lIgel1till
a "»road AgeIWy ~ouncemtllt hl Joint Snpport uribe TecbuiClll Support Worldug Group md Do!C1\Se Advalicocl RC$ell{d\
PfOj~ <\gencylIn1'tmJlatIQQ Exploil2tiQll oaleo, Srcset" dared j J~ 2003 (50licfQlion 'A~CI'03..q.4110) end ilS Ilddre$$ it
~tted as ''Pcpanmenl Qflll.e Na1ly, 'N4\1)' £n$lulltrins Logi~~ ot'&e Tswa, P.O, B~ 1617.4 AJlInttoB, vA, 11201"•
Ateonlin~ ~ AP, NBL.O "O}JCRttS Il.Ildtr diffeRllt JW1lt$:

it is :\ls<> lcnQwr.lI$ the NJ.'Yy Of&e of s~ PJ<>Jf<\1s ~ it5 ~

~g1) loutioll is called thll Nfl.."RlItiOlW 1'1aDt tqllipmetd Offi~" Iu Jlrlnllip!! ~Oll is ~ condllet of !OTeign iDtlllliSo:lcc

01 l:Ountl:rin1c:lUitllcc aClivitie5."
S61'hc 1!st also includestlle fo1\ll1¥ing eDIl'lPllJli~l /wvlna (L-3JAtromcl); AirTnulsportIlltematlolW; Air'rlelc; Alnned

lrlt<ilI.llrioAal; AJla.~

Air. BK ~OQjnlc~:

CCIlllllioD Aviuloll S~ict;; COll.lin=llll Airlmer, CoDtintliW Micronesia; Crowell

Avia"OfI 'tecAbologil:3; De!~Alr Lib~ E~ Sho~ l!oJdlnS; B~"en In'ehIII(iOzuJ Airlines; FAlcon Air &P~i Fedenu
~s: Gemini Air Cu'go; Nottb /Uneri~an Airlille!j oimti Air Intel'!ll1lionlll; Ori>hal S,iencos Corp.; Ra}'lheon Afrcraft
COlll):>llny; SoUthern Air; TJnited PUll'" Service, Co.; US Akwaya Group; Va~ Leasing; World Airw.ty,.
57 Defc.lIst :tllerjlY SuppOrt Ccnlll', ColllZlleteilll Pun:!lilSc Agreement CIl,tOJnA:tS • OODAAC Damllase, various edition$ fu,tn
::Z001 to 2005.

Amnesty /ntemationoJ 5 Apn7 2006

AI Index: AMR 61/05112006

UNCLASSIFIED
L0270

28

}

USA: 8elow the radar - Secret fJlghts to to~re fmd 'disappearance'

intemationalleg¥ standards and to US crlminallaw. but also to the Uni!OnD, Code of
Military Justice, which explicitly forbids. both "unlawful detention" and ~~me.lty and
maltreatment". The arIlled fOJ:ces do not appear to be 'COVeTed by the memorandum.
authorizing the CIA to ca:n:y out renditions.,
According to a fonner CIA officer interviewed by the Chicago Tribune, Gulfstream
N379P! N8068VI N44982 was operated by' "the Joint Special Operations Command,
an inter-agency unit that organizes counter-terrorist operations in conjunction with the
CIA' and military spedaJ forces,usa Th~ joint Special Operations Gommand is the
coordinating agency for all military special operations forces and operatio~ and its
headquarters are at Fort Bxagg, North Carolina. Accoxding to ,its website,' Fort Bragg
is the '<Home of the Airborne and Special Operations ~~rces. Fort Bragg h~'USes the
82ncl Airborne Division and the
Airborne COlps. the US Amty Special
Operations Command and the US Army Parachute Team." The CIA's deputy
exeeu:tive diIector Christopher Kojm told the 9/1 ~ Commission that "the CIA 1,tad two
main operational responsibilities for combating terrorism: rendition and disruption...
The CIA' often plays an active role, sometimee calling llpO.n the support of other
agencies for logistical or transportation assistance.'.s9
,

xvm

A United Press International (UP!) report in Jan\1&:Y 2005 noted that the FBI also
canies out renditions, but that it transports its suspects by US Air Force jet rather than
prlva:te plane. '0 ,

2.4 Role of third cou'ntties
Countries that allow CIA planes to cro~s their air sPace and use their aitports have
defended these actions by citing their obligations under the Chicago Convention.
They may claim that the state party has no authority to question the reasons for the
:flight Ot to board the airplane during the $tay in the airport because of the rights
"
.
.
guaranteed by the Convention.
However, the Chicago Convention holds that every state has the right to require that
, an aircraft flying over its territory must land at a designated airport. foi inspection if
there are "reasonable grounds to conolude that it is being used fot any pmpose
inconsistent with the aims of the convention". Given that the practice of rendition
violates international human rigbts law, it foUows that transferring Ot aiding and
abetting in the transfer of a, detainee in such circumstances cannot, be a purpose
consistent with the aims of the Chicago Conventio~ especially considering the,
internationally recognize~ absolute prohibition of ~orture. The extensive reporting by
tJ,le medi~ huxnan rights organizations and parliamentary bodies of specific flight
numbers and chartering' companies which appear to be involved in renditions
constitutes "reasonable grounds" for suspicion. This would give ~ates the right to
stop certain aircmft suspected of being involved in the 1mlawful transfer of detainees.
58 "Mystery mm4Ucs III sJci03; lllu,ivo owner's jellink~ to C1.I'- tO~·, ChfcaBO 1'rJbIlM,9 JnnllaIy 2005.
• 59 t'tanscripl: Wed1le$dllY' 9/11 COmm.!"!Oll Hearings, mCR E.M~is, WedJ1cJda)'. ?A M\l1'l:b 2004.
60 Richard Bille. "'Renditions 1'10 aud COfl", UP!, 19I1LlliallJY200S.
Amnesty Intem~tiDn815 April 2006

AI Index: AMR 511'051/2006

UNCLASSIFIED
L0271

29

USA: Below the radar· S8ClYi!t nights to torture and 'disappearance'

/_

-

.... ....

t )
2.5 Flight movements: 2001 ..2005

Amnesty ]'ntemational and-TrnnsAnns6J have reccirds of n~arly I,OOO:fli is directly
linked to the CIA. most of which have used European airspace; these ~ flights by
planes that appear to have been permanentlY operated by the CIA
ough front
- companies, ~ 1:\ second categOIY. 'thexe are reooIds of SOUle 600 oihe:t fli ts made by
plan~ con:6rmed 8$' having been used at least temporarily by the CIA. Fbny there

thai
kn0r

are well.Qver 1,000 other f1i~ts-made by planes Qwned by companieS
linked to the CIA. but ~hich are not known to be connected to any
rendition.
- -

have been
-cases of
i

The flight wfoIll;\ation comes fronl several sources: -FAA flight records European
flight recoIds; actual flight logs; aircraft movemet:tts recorded by airport au.thorities;
airport records acquired in _police and parliamentary investigations; photbgraphs of
aircraft in selected airports; and some press repol't$. Flight logs contain all xbovetnents
c:nn~out by the plane, including all stopovers between <;>ngin. and aestination
J-

aupo

-

-

.

-

airp03"

us

)

-

-

Flight records,-however, only tell part ofihe stoIY, Records maintained-b the F~
_for instance, do not include all of the stops -a plane h;:lS made during a trip way nom
airspace. The infoan~onusually pl"ovided inclu&s the Qrigin
I the USA
or in FAA Jl1Onitored airspace - including ueland and the UK the first
destination ofthe flight outS,de monitored airspace. It does not pick up ag' until the
plane reappears in FAA monitored airspace. It also sho'WS the flight
iime and .
duration.
_

datej

.

-

What this means in practice is that large pans ofa flight's itinerary may not be shown
by FAA flight recoIds. In January 2004, for instance.. the CIA's Boeing 7~' N313P,
left fr01l1 Washington DC and stopped off in Ireland. Cyprus, Morocco, Alg "s, Spain,
Macedonia, Iraq, Afghanistan. Romania ~ Spain before returning to
bington
DC, apparently canying out the rendition of Khaled el-Masrl on the
y. FAA
records show' the Washington to Ireland and ueland 10 Cyprus tlights,
do not
tee.oro the landings in Morocco, Algeria, Spain, Macedonia, Iraq, Af~stan or
Romania. Auinesty International has obtained this infonnation from. anoth~ source. _The final leg of the journey, the re~ flight from Spain to the USA, is al~ shown.
The shortcomings - for the purposes of m.onitorlog - ate obvious; such tliglit records
do not show the pfecise activities ofthe planes in locations where
most
likely to occur, they ean- o~y show whether planes were active in a certain gion at
the time in question.
.

reu.ditiO.QS[e

It also seems likely that not all relevant traffic is recorded by the FAA; betw en 2001
and 2005. for instance. two of Premier Executive Transport's jets made a tdtaI of SO
landings at Shannon Airport in Jreland,_yet the records show that they only tobk off35

61 T'ra.llsAnxu. IteI=h Cq)t~ 1br thr; Logistics of ArmS Tl'SJJsf"ers.

Amnesty Intsmational 5 April 2006

UNCLASSIFIED

L0272

,4. APR. 2006 18:31
30

AMERICAN AMB~CbAf5~lHED

NU. {II

r.

jl

USA: Be/~w the I8dar· Secret flfghts to tolture end 'dis~ppearanc&'

times. Flight records o:riginating from European sources provide additional
infonnation c>n flights that have originated or terminated in E-q.ropean airspa e..

,/"'-"

)

Flight list~ are lli;e:fu1. but .they cannot tell whether or not any particular plane, bas
carried out a :rendition. The information they contain is ip,dicative ther than
. 'cohclusi'lt6; Amnesty International has constructed. a datab~ of flights
order to
.check it against case information 'as it becomes available. It r~mains the c e that raw
data on the flights themselves is of limited 'use without specific details of ases; case
detmls are bard to come by precisely because the secret nature of the practide is aimed
at avoiding scrutiny'and oversight. Where cases become known. and 'the
and
dates ofthe abduction or transfer can be pinpointed, it has often beeD: ableJo match a
tel;ldition with a flight record. Amnesty lntemanonaI cannot. however~ inter possible
, eases or even make estimates ofthe extent of the rendition progtamme soJe~ from. the , flight iirformation.

aetails

2.6 Companies and aircraft
Amnesty lnt~mational and TransAnns have compiled a list of compani likely tQ
have had some level of involvement in renditions ElIld oilier cove 0
• This
includes the owners or
t have been detected in
c~es of
ren.~tion or in 'other CIA operations. as well as some of the companies lieved to
be ~telligence-1inked- that are xnentione4 in both the US Army Aeronauti: a1 Service
Agency's woddwide landi.Ilg permits ~d in US DoD fuelling 9Ontfao1s.

mo.

,I,

.

The tentative li~ of companies involved in ~vities has in turn formed the
basis fOI the list of aircraft whose flights Amnesty International has ttac~ over the
2001·2006 period. Once the flight logs were ana1yse~ some of these co anies and
aircraft were dropped from the list. because :flight logs indicated that the had only
flown in and out of locations unlikely to have' been connected to either f!1f rendition
programme or to covert CIA activities. In a number of cases, there was ~e? activity
- a plane which has made repeated flights in ~d oui of bases in AighfllSWl and
Egypt, for instance, has also appeared -in holiday resorts or business
in the'
USA - suggesting that the agency may be trying to var; its use of PI!, so that
' .
individual aircraft cannot be so closely linked to covert activity.

~

centres

,The other indication of a shifting landscape in the world' of front com .es is the ,
CUITent list of com.panies with a Civil Aircraft ~ding Pefnrlt (CALP) ~authOrizeS
them to land on US militaty'bases worldwide. The 10 companies that
ently hold
such certificates are listed below. but equally important are those that ar no longer
listed. Notably absent from the 2006 list are some of the companies ~'t. the most
'Widely and frequently teported rendition links: Aeromet,. Inc; Devon
lding and
Leasing, Inc:; Premier Executive Transport Services, Inc; Rapid Air T
; Raytbon
Aircraft Company; RichmOI' Aviation, Inc; Stevens Express Leasing, Inc; r-d Tepper
A'Viation, Inc. The permits of all of these companies expired in 2005 ana none has
been renewed.'

Amnesty Intemationa/5 Apn7 2006

A1lndex;

l51/05112Q08

UNCLASSIFIED
L0273

4, ~p R. 2006- \8: 3t--AMER ICAN AMBAS WN C41~=2Jfi=~;;:::;.ill=f;:...,;I::.;:E=D~· ..;.,-__ftv-+·I_/l_l_ _',_)J
31

USA: Be/ow th9 fadar - Sel;ret flights to torture- and 'disappearance'

PRIVATE COMPANIl:S WITH CUMENT PERJIIlrrS TO LAND IN us M1UTi BASES

/-'-'"

,

)

WORLDWtDEG2

.
,

,

cALP

ex;lRATION

CENTURION AVIATION SERVlCES. INC. •

01-04-121

!:NERGReeN INTERNATIONAL AIRUNES, INC. •

01-05-132
01..()4..179

FALCON AIR EXPReSS·

01-05-059
01...Q4..o21

1 0PTOBEfl2005
1 OCTOBEFt 2005
1AP~L2005

NAME

1 A. 1.2006'

a N<'VE.MBER 2004
1aJ~LY2006

01-05-163
GEMINI AIR CARGO, INC...

22J ~"'V2005 .
1 AI, \3UST2006 .

, 01-04-124

01-05-117
.ORBITAt. SCIEN9ES CORPORATION •
..

1A~T2005

O~-o4-141

OMNI AIR INTERNAT10NAL;.INC.
..

i)1-Q5-130

1 Au. UST 2006

01-04-020

1 J~2004
'1 Ju 2005
1J
2005
. 1Aue uST2006

01-04-117

PHOENIX AIR GROUP

01-05-118
01-05-113

POLAR AIR CARGO, lNC·

01-05-037

3101 CfZMBER
2006

.RYAN INTERNATJONALAIRlINES

OH)5-152

SOUTHERN AIR, INC.

01..()4..161
01·05--166·

15M v200a
13N~V5MSER

2005 .

,

1~NQWMBER

2,006

(") gxcEF'T"THe BUCHOlZ us AAMY AlRFll:L.O, KWAJAUi!IN ATou.. KiRIBA1I', MARsHA!..t. ISLANDS

J
coMPANIES AND AJRCRAFT LINKED TO RENDmON FUGIil'S IN PRESS At D

PARUAMEtrrARY REPORTS
OWNER/OPERATOR

RliGISTRAno..

MANUfACTURER's

NUMBl:R

NUMB!R

TYPE

AIRCRAFT

'.

AIm.O CONTRACTORS

APACHE AVIATION
AVJATION SPECIALTIES

N404AC

1384

G-IV

N5139A

BL-144

BEECH
B200C

AVIATION SPECJAlTIES

N4489A

8L-145

BEeCH
B200C

BAYARD FORESGN MARKEllNG lLC
BRAXTON MNG/CENTURION AVIATION
SERVICES,

N44982
N478GS

581

DEVON HOlOINGIAEROCONTRAC'-ORS

N168D

C-135

DEVON HOLOING/AEROCONTRACTO~S

N196D

C-13a

DEVON HOLDING/AEROCONTRACTORS

N187D

c-143

GEMINI LEASING INC.

N-235
CASA
CN-235

N600GC

46965

li)C-10~

62 www.u~UJI,\lol\o-olr.\Utlly.mi1,

Amlle~ty Intam~tfonal5

G-V

1478

,

G-IV
CASA
pN-235~oo

~SA

"~(>UJ pedod Z004.:tOO6.

April 2000

Allndex; AMR 51 '05112006

UNCLASSIFIED
L0274

4. APR. 2006_18:31....:---_AMERICANTAMN{SLA.flSU~il£tID......: .....---_-NO.·lll_l"'. j4
uSA: Below the radar· Secret flights to torture and 'disappearance'
32
OWNeWOPERATOR
~/,;-

I

)

MANUFACTURER'.

IMPERIAl- AIR

N331P

7323

KEELER & T~TE MGM

N4476S

33010

MARK J. GORDON
PEGASUS TECHNOLOG1ES
PHOENIXAVlATION
GROUP.
.

N829MG

~27

N547PA

012

LEARJET

PHOENIX AVIATtON GROUP

N541PA

053

36
LEARJET
35

\?HOENIXAVJATJON GROUP/CFF AIR INC

N549PA

119

PREMIER EXECUTIVE TRANSPORT

N313P

33010

N379P

581'

NS068V

581

N2189M

45B2

. TYPE
30F
DC3-

NUMBER

G20.2A
6-737-

71:T BBJ
I <3-1/1

LEARJET
I 35A

SER\ltCeS

).

AIRCRAFT

REGISTRAnON.
NUMaEA.

............

PREMIER EXECUTIVE TRANSPORT
SERVICES INC
PREMIER. EXECUTive TRANSPORT
SERVICES INC
RAPID AlR TRANS INCJTEPPER
AVIATION
RAPID AIR TRANS INCJTEPPER
AVIATION
RICHMORAVIATION-ASSEMBLY POINT
AV
RlCHMORAVIATION-ASSEMBLY POINT .
AV.
S&K AVIATION lLC
STEVENS EXPRESS LEASiNG·

I

'8-737-

I

G-V

I

..

7r:TBBJ
G-V

L-382G-

44K-30
4796

l-382G-

N85VM.

1172

44K·30·
G..JV

N227SV

1172

N259SK
N4009L

327

G·I/I

B300C

Raytheon

N8163J

Amnesty Intematfonal 5 April 2006

AI Index:

I G.JV

Al51105112OO6

UNCLASSIFIED
L0275

'4. APR. 2006 18;3'1

AMERICAN AMB~NC~1\2~nnED

!'iV, III

"I

33

USA: Below the radar~ $ecrat}lights to torture and 'disappearance'

.

3. Amnesty

International~s

I.' JJ

.

.

recommendations

.Amnesty Interoa.tional makes the following recommendations as
ediate and
essential steps towards putting.an end to the rendition programme and i associated
practices, including enforced disappearance, torture and mcoinmunicado and seeret
d~enrioa
.
Reeommendations to QU governments:

r------..,

No rendiroms
Do not render or otherwise transfer to the custody of another st e anyone
suspected or accused of securitY. offences unless the transfer is carried ~der

1_.

. judicial supervision and in full obsetyance ofdtie legal process.
,.-- Ensure that anyone '$ubject to transfer has the right to challenge Its legality
. before an independent tribunal, and tb;at they have access to an lndependbt lawyer
and an eff~~ve right of appeal
' .
Do not receive into custody anyone suspected or accused of seCuri~Offences
unless the transfer is canie~ out under judicial supervision and ~ full obs MUlce of
due legal pro~. .
. '.
Infonaation on the numberS, natiOnaUties and current Wheteabouts 0 all tenor
suspoou; rendqed, extradited or otherwise ttansfeued into custody fro abroad
should be publicly available. Full personal details should be promptly Supplied to the
fauiilies and lawyers of the detainees, and to the International Committee If the Red
~ ~~
Cross ( I C R e ) . · ·
. Bring all, such detainees before a judicial aUthority 'Within 24 ho
into custody.
...
.
.
Ensure that detainees have prompt access to l~gal counsel and
members, and that lawyers and family members are kept informed of the
whereabouts. .
.
Ensure that detainees who are not nationals of the detaining co try have
access to diplomatic or other representatives of their country of nationality ~r fonner
habitual residence.

I

D

B5

.

B5

l

No
-

-

ttiisappeOTtmCes~

no secret detention

End immediately the practices of fueommunicado and secret etention
wherever and under whatever agency it occurs.
.
..,
. Hold detainees only in officially recognized places of detention with access to
family, legal coWlSel and courts. .
.
'.
---- Ensure thai those responsible for udisappearances" are brOUght to jUSfice. and
that victims and families receive restitution, "compensation and rehabUitlitio~J...
. Investigate any allegations that their territory hosts or has hostetl secret
detention facilities, and make public the results of such investigations.

I

t---

Amn&sly rntemationel 5 April 2006

,.UNCLASSIFIED

L0276

1~:jL
q, M K. .LI)I)1:) oPt

-

AMtKI\,I\N f\IIJ\M~JJNGIi~~j'-Fli+IEs+-])~~'
USA: Below the radar~ $Qcret flights to torture and 'disappearanae'

NU. 1I1~. 3b .

....;.-.-.....;...-----

N(} torture 01' othe.l' iJUre.atment
.
'~e that inten'ogations are carried out in accordance with. international /
stan4a.rds, in particular vv:itho~t any u.se of torture or othet' cruel, inhllmAO. or
de~g treatment.
Investigate all complaints and reports of-torture or other ill-treatment promptly, .
impartially and effectively. usmg an agency independent of the a.Ueg~d perpetrators,
~d ensure that anyone found responsible is brought 'to justice,
.

Ensure that. viathns of torture obtain :p:rom~t repara~ from ~ State
inCluding. restitutio~ fair and adequate financiarc<)mpensation and appropriate
medioal care and rehabilitation..

No diplonurtic {JS5f1.1'(IIICiI.$

. Prohibit the return or transfer of people to places where they are at risk ()f
torture or other ill-t:l:'eatxnent.
'.
"
Do not· r!ffi1i!e or acee»t "diplOmatic :usurances" or similar bilateral. .
agreementS to justify renditions or any other form. of involuntary h-ansfers .of
individum& to countries where there is a risk oftorture or other ill-treatment.· .

'*'

No I'mdi/iQns/lights'
.
.
Identify to the a~ation authorities any plane or helicopter used to' carry out the
missions of the int~Uigence services as a state airctaft, even if tho aircraft in- question
is chartered from a private com.pany.
4(tft\ tM ~
..
. Ensure that aitports and airspace are not used 10 support.
facilitate
renditions or rendition flights:
. .
.
Maintain and update a :tegister of aircraft oj,e1'ators whose planes have been
implicated hi rendition £lights, and require them to provide detailed information
before allowing them landing or :flyover rlg;hts. 'Such information should include: the
:full flightplm of the aircraft, ipcluding onward stops and full itillerazy, the full names
and nationalities of all p.a.ssengers ott board> and the pUIpOses oftheir travel,

ana

=J

If any passengers are listed as prisoners or detainees. more de1ailed
iIJf'Qnnation about their status and the status of their flight should be reg •
including their destination and the legal basis for their transfer.
.
Refuse access to airspaWand aittields if requested information is not·provided...
If there ate grounds to beUeve that an aucWt is being used in connection with
r~diti.ons or other human rightS violations) board the plane o~ reqtJire it to land for
inspection.
If such inspection indicates that the flight is 'being used for the .Un1awfui
transfer ofpeople, 01' other human rights violations, 'the flight should be held.until the
la"Wfulness or otherwise of its purpose can be established, and appropriate law
. enforcement action taken.

Af!lnesty Intemational 5 April 2006

AI Index: AMR 51A'J5112006

UNCLASSIFIED

L0277

AMERICA~ A~BASSY 1JV~l2~4ioSIFIED '

NU. If I

t. :> f

B5

35

USA: Below the radar - Secret flights to torture and,'disappearanoe 1

Additionall"eeommendanolJ! to the ·us gOVe.nm1~~t: .

- ~ that anyone held in US custody in aziy part of the world can ,Sxercise
the right to legal re :resentation and to a fair and tr
arent Ie
rocess; ~
- Disc ose the location an
0
e etention centres where Muhammad
-Abdullah Salah. aI-Assad, MliliamIDad Faraj Ahmed BashmiJah -and saiah Nas~
SaUtn cAli Qaru were held between Ocfober-2003 and May 2005; .
Disclose the identities and whereabouts of all others held in secret loeations
and their legal status, and invite the JeRe to have full and regular access to all those
~~~

:'-

_
Release all detainees in US custody at llDdisclosed locaO.ons unless they-ate to
be c:ha:rged with internationally recognizable criminal offences and brought to trial
prom,ptly and fairly, in :full accordance With relevant international standards, and
without :recourse to the death penal!l;
Prom.ptly and thorollghIy investigate all allegations' of "disapp~ce", and
bring those snspected of haVing coinmitted, ordered or authorized a "disappearance"
befoIe the competent civil authorities for prosecution and trial.

D

B5

t

'

Recommendations to private aircraft Ope1:11tors and leasing agents:
.
. Ensure that the company is aWare of the end use of any ~raft it is leath\g or
operating; "
Do not lease or otherwise allow the operation of any aircraft where there is
reason to be~ev¢ it might be used. in human rights violations, including rendition or

assoc:iated operations;

, .

.
'Develop an explicit human rights policy, ensuring that it complies with the
, UN Norms on the ;Responsibilities of Trimsnational Corpora.tions and Othe;r Business
'
Entexprlses with Regard to Human Rights.

.

.1
I

Amnesty International 5 April 2006

UNCLASSIFIEd/lndex: AMR ~1/05112006
t

I

L0278

APR 200'6 18:32

4.·

"I:j

'

NO. 771 . P. 38 '

TTNrLA~S~~~£D,

'~MtRICAN AMBA~g'f 4T715

,

USA: Btl/OW the radar- Secret tllqhts to torture and 'dlsappettrance'

Appendix:' Planes monitored
1. N 313P..N4476S
N313P-N4476S is a Boeing 737~7ET (BBJ)a.ircJ:aft (min 33010) for ~hich theta axe
396 recorded landings or taking offs between 22 November 2002 and'S September
2005. Flight records show that it' was the plane that
K.ha1ed el-Masri from
Skopje to Afghanistan. in January 2004, and·Human Rights Watch has identified it a$
the ~plane that the CIA used to' .move several pn90ners to and from Europe,
Afghanistan, and the Middle East in 2003 md 2004 - it landed· in Poland, and
'Romaniaqn direct flightS from Afghanistan on two occasions in 2003 and 2004."

rook.

.

'

RegJm:a.tioJl~ First registered by Ste'\'ens E~ress Leasing Ino> and then tc~tegistered

on 1 May 2002 by, Premier Executive' Transport Services. .I<ee.ler &. Tate
Management reo-registered the aireratt 0%1 1 December 2004. as N4476S.. This is the
only airoraft regi~ered under this company name.
Landf!:lg rights: Stevens Express Leasing Inc. and Premier Executive Transport,
S~rvice$ were both pennitted to land at US military bases worldwide. Their permits
expired iXl200S and ha.ve not been renewed.
.
'
.
.
,
Range aIId capacity: average range of S~.s 10 nautical miles at .522/542 knots (non":
stop Wsshi.ugton Dulles-Tashkent in 11 hours,. for example). and can transport up to
127 passeDgers.
I

)

N313P plan~ used in rendition tl.ights. Later re-registercd as N4476S. Q Toni Marimon

Amnesty fntematfonaJ 5 Apn7 2006

A/Index: AMR 51/qS112006

UNCLASSIFIED
L0279

, NO. III

4. APR. 2006 16:32

37

USA: ~ow the radar- Secret flights to torlure and 'disappearance'

.

I ,

Destinatiol1S: movements ofN313P-N4476S include landings and take offs from the
'folloWing airports:
COUNTRY

CITY I AIRPORT

AFGHANISTAN
AFGHANISTAN
ALGERIA

KANDAHAR

1

KHwAJARAW,&,SH (KASIJL)

9

ALGIERS

3

A%ERBAUAN

BAKU

1

BAHRAIN
CROATIA

DU6ROvNIl<

CYPRUS

LARNACA

CZeCH REPUElLIC
EsTONIA

PARNU

3

FIJI

NAnr, Vrn lEVU

2

GERMANY'

FRANKFtJRT
RAMSTclN

ATHeNS

73'\
31
1 J .

BAGHDAD
DueUN

.....-0
2 \"

SHANNON

~

PASSAGES
,ntROUGH THE

AIRPORT

[

[
[

r

I

I

[

l

,

GERMANY
GREeCE
IRAQ
IRELAND·
IReLAND
ITALY
JORDAN
KUWAIT
LJBYA
LIBYA

·

BAHRAIN
~

f

16......71

PRAGUE

2
20
6

P1SA
AMMAN

KUWAIT

MmGA

17
2

MACEDONIA

TRIPOU
SKOPJE

MALTA

VAlLETTA

MOROCCO

RABAT

IV
2
8
5
1

PAKISTAN

ISLAMABAD

PAKlSTAN
PORTUGAL
PORruGA,L

KAMCH!
PORro (OPORTO)

~

SANTA MARIA (AZORES)

2'

ROMANIA

BUCHAREST

1

ROMANIA
RUSSIA
SAUDI ARABIA

TIMISOARA

1

Moscow

1

SPAtN

T SWITZERLANO
UNITED ARAB eMIRATES

RIYADH

UNITSD KJNGDOM

UNITED I<JNGOOM

LONDON GA'lWICJ<

UNITED KINGDOM
UNI1'EO KINGDOM

MANCHESTER

UNITED ~ EMIRATES

/ 'g\.. 2,/
1
4
i/19 ,,"
'1
\.

LUTON

9
2

UNITEO KINGDOM

MlLO~NI-fAlJ.

UNiTeD l<JNGOOM
UNITeo KINGDOM
UNITED KINGDOM
UNITED STATES OF AMeRICA

NORTHOLT
OxrORD BRIZEi NORTON
PROVlDENCIALES (TURKS AND CAICOS)
GuANTANAMO BAY US NAVA1.AIR STATION,
CUBA
'

UZBeKISTAN

TA$HKENT

Amnesty Intemational 5 April 2008

UNCLASSIFIED

·
·

1

PAlMA oe MALlORCA
GENEVA
ABUDHABJ
.CUBA!
GLAsGOw

~,

3
9
3

.,.
B

J

7

1

AI Inde')(: AMR (51/05112006,.,
!.

L0280

4. APR:2006-1a;32-~--AMERICANAMBASTJN~~~n~_IE_D
38

USA: Below the radar· Secret flights

Y

• _4U
7...;..;1l_ _

.;.:..,;;NQ.;...;..

to torture and 'dlsappearanr;e'

2. N379:p.N806SV..N44982

..;rhe 'oU1fstream '?" ~eCutive jet. 'vM1oUsly'~~steied ,as ~379P; N8Q6&Y ahd'N44982
has b~. the plane most :o~ identifie4 Veith ~ovvn cases ofrenditioa AI,haS ~e~~rds
<)f.S~Q limdi~gs

and take o:!fs'k.etweeJ;l l':e1:?rilary 200l'and September 2005,:,·.t. : '.' .:

Registration: :registered in February 2000 by Premier Executive Transport Services;
it was re-registered as 'N8068V at the beginning of 2004;, and again re-registered as
'N44982 in December 2004 by Bayard Foreign Marketing, a phantom company
registered in Oregon State sin~ August 2003.
other aircraft were registered. by
Bayard Foreign Marketing., The airc.raft was put up for sale in late 2005, and is now
the property ofa company based in Mi~, Florida.6~

No

Landing "rights: Premier Executive Transport Services aircraft were permitted to land
in. the US bases worldwide (expiration 15 October 2(05).'
"
,
Range and capacity: average ran.ge of 5,800 nautical :arlles at 4591585 knots (noll'stop Washington Pu11es-Kabul in 12 haUl'S, :for example). The aircraft can transport .
up to 18 passengers. but it is usually configured for 8 passengers.

N8068V plan1: used in rendition flight$. Botlier registered as N319P and later re-regi:>teted as N44982.
e Jean Luc Altherr
'

Amnesty Intemational 5 April 2008

A/Index: AMR S1Jo51/2006

UNCLASSIFIED,
L0281

P. 4,1

NO. 771

l - APR. 2006 18:31
,

39

.USA: BeloW- the radar - seCf&t flights to torture and 'diSappearance'

Destinations: movements ofN379P-N8068V-N44982 include landings and take offs
from the following aitporls:

'
PASSAGES

_«:tTY I AIRPORT

CQ4N'tRY

niRoUCH'THI!,
AIRPORT

"

AFGHANISTAN

KHwAJA RAWASH (KABUL\

At.GERlA

ALGla~S

AZeRSAfJAN, '

BAKU

BAHAAIN

MUHARAAQ MIl.ITARY ~Ri'ORT
lARNACA

CYPRUS,
Cyp~S

PAPHOS

CZECH Re?t./sUc
OJleOVTI

PRAGU!
O.:lI130U11

EGYPT

CAIRO·

BANJUL

GE~NY

FRANKFURT
MUNICH

GERMAN'i
GCRMANY
GREeCe
IRAQ
( IReLAND
ITALY
ISRAEl..
JORDAN

2
2
2

srunGART
ATHENS
,

KuWAIT

7 )

BAGHDAD
SHANNON

2

ROME!

?

TElAVlV
AMMAN
K1N-JAIT
MITIGA

KuAlA LUMPUR,
MARRAKeCH

1
2

Mo~~e<:>

~~,.

1

NETHERLANDS
PAKlST.a.N

AMsTEROAM

1

KAAACHI

POLAND

WARSAW

2
2
1

QATAR
SAUOIAMSIA
SPAIN
SPAIN

SW\'TZERLAND
THAILANP

TuRKEY

.

lJSBON

POI-tTOloporrro)
DoHA
RIYADH
PALMA DE MALLORCA
SANTA CRUZ DE TeNER/FE (CANARY

,

.
•

~.:>

2
2

,

3
3

J..-::::---J

ISLANDS)
GENEVA

/' ~.

,

1,·

BANGKOK
DIYARBAKIR

2

UNITED ARAB EMIRATES
UNITED ARAB EMIRATeS

ABUDHAer

UNITeD KINGDOM

GLASGOVV

20

UNITED KlNGOOM

LUTON

UNITeD KINGDOM .

UNITED KINGDOM

OxrO~D 6RlZE NORTON
PRESiWlCK

4
2

UNITED KINGDOM
UHITEO'STATCS 01' AMERICA

PRoVIOeNCIAlES (TURKS AND CAICos1
GUANTANAMO BAY US NAVAL A1F\ STAiJON

63

:

18
3
2

llPYA

POFmJGAL

7'

4

MALAyS""
MoROCCO

PoRTuGAl.

.

,0

RAMSTEIN
.

·
·

11
2
14
2

GAMBIA
GERMANY

·

6
1
1
1
10
2

1
4

DUBAI

36
6

~

:

,

20

See an advertisement for the sale ofthis Gulfstream V executive jet at US Aircraft

Sales; http://www.usaircraftsnles.comIForsale/SPECS%20GV%20581 %20%~02.pdf.
Amnesty IntemlJtional 5 April 2006

:uNCLASSIFIED

Al Index: AMR 51105112008

L0282

"4,

APR~ ~n06-1a':33;-.;. _AMERICAN AMBA\StTCfr..:-~..::..::.;;..;~J,,--fl.....I_E_l?_.
40

r,_4l,
N_O,_'_Il__

USA: Below th9 radar· $ccr&f flights to torture and 'disappearance'

CUBA

UZBEKJSTAN '
UZBEKISTAN

KARSHI AlRBASE

'1

TASHKENT

13

3. N829l\!G-N2S9SK
A Gulfstream ill (Grupnnaxi G-llS9A), this plane carried Canadian national Maher
AIar flom th~ US to Jordan, where he was'transfeaed overland to Syria.. He was
t,ortured during 13 months of detention without charge, and was released in October
2003. The plane has also made over 100 trips to Guantanamo Bay. There are 380
relevant,FAA recorded landings ~m~ffs between March 2001 'and May 200S:

" Registration:,te~ed by MJG Aviation in October 2000 in Florida; the company

dissolved July 2004. MIG's owner also owned Presidential Aviation, a company first
registered in Florida in, 1998 'and dissolved November 2004. The aircraft was.~·
registered as 259SK in March 2004 by S&K Aviation. LLC. S&K Aviation was first.'
registered in Florida in December 2003 and is an active company ~th a'registered
.

~~~,

Range and capa.city; average range of3,715 nautical I¢1es. The airoraft can transPort
22 passengers~ but it is usually configured, for 10/12 people.
I·

'Up to

I

Gulfstremn III: N329MG (Later re-registered as N259SK). 11> Saxn Chui

,.
AI Index: AMR 51105112008

Amnesty Infeme(jonnl 5 Apn7 2005

UNCLASSIFIED
L0283

4. APR, 2006 18: 33

. ' AMERICAN

AMBA~Cfr~n~IED

NO. 111
41'

USA: Below the radar· Secret flights to torture and 'd/sappfJarance'
.
I

~ • . ~,

{,

.

.

Dest:inations: Recorded movements of N829MO-N259SK include landings and take
offs from the following airports: .,

.

CO\Jtm\Y

CI'TY I AlRPOlU

BELGIUM

ANTwERP

1

CANADA

GANDER NewFoUNOI.AND

10

FRANCE

lEBolJRGET

2

GERMANY

FRANKFURT

PASSAGES

mROUGHTHe
AIRPoRT

1

1 .

FRANI<FURT~HAHN

GeRMANY
GERMANY

NURNBERG

1

IRELAND

SHANNON

2

trALY .

ROME
AMMAN
AMSTERDAM

3
2

JORDAN
NETHERlANDS
NeTH£Rt.ANOS
.PORT\.lGAl:.
SPAIN

. UNITED KlNGOOM
UNITED K1NGt>OM

UNITED KINGDOM'
UNlTEo KINGDOM
UNITED STAlES OF AMERICA
UNITED STATes OF AMERICA

. UNITEO STAlES OF AMERICA

2

Gr:tONINGEN '

1

SA!'(fA MARIA (AZORES)

6

MALAGA

2
2

BIGGINHILL
I-lAMILTON US NAVALAIRSTATlON,
BERMUOA
LONOONDERRY
PROVIDeNClAl.ES (TURKS AND CAfCOS\
GUANTANAMO BAy US NAVAl AIR STATION,
CUBA

Te-reRaORo
WASHINGTON. DC

:

G

:

"

.

'

2
7

2
3
2

,)

Amnesty Jntem<Jtional !) April 2006

UNCLASSIFIED

A/Index: AMR 5110511200(;

L0284

'to /HI'.

LVU~_1l:I:j)_ _ AMtRICAN AMBA!U'JQL~=~=-.;m:.=..;..;._IE_D
42

USA:

B~fow

NO_.7_7-:.1_P_,_'44

the radar· Sf'ofet flIghts to torture and 'disappearance'

i.
4. N85VM-N227SV
The Gulfstream IV plane ~t took Abu Qm&- to Egypt from GetmaJiy after his
Its Qwners have admitted leasing the plane to the CIA. but have
said it is not used exclUsively by the agency. There are 488 relevant recorded
, I$dings or takeoffs between February 2001 and July 2005.
"
ki~ping in.Italy.

\

'Registration: owned by Assembly Point Aviation Inc., registered May 1995 in New
York State. the aireraft was regm.ered as N85VM until September 2004, when it was
re-registered as N221SV. Operated by Richmor Aviation, a' company based at the
Columbia. County airport (H~n, New York) and Scotia, (New York). Ricbrnor
Aviation owns or manages a fleet of about 15 business jets.

I.ancllitg

rights: Richxnor Aviation titrcraft were permitted to land' at
bases worldwide (expiIation February 15,2005).
,

US nrlutary
.

Range and upacity: average rang~ of 3,633 nautical nill~ at 460/582 knots; can.
1r3nSport up to 19 passengers, but it is usuaUy configured fot 8/14 passengers.

)

Gulfstream IV: N227SV plane used in rendition flightS. Earlicr registered as N85VM. 'this Aircraft
is currently available fur charter ,at a rate ofUW36S per hour. Q Wallace'

AI Index: AM~ 51(051/2006

Amnssly International 5 APfl'l2Q08

UNCLASSIFIED
L0285

't.tHlI. LVVO

IO:)'t

NO. 771

P. 45

"

"

43

USA: Below th9 radar .. Secret flights to torture and 'd/~app@aranr;(j'

Desmiations: Recorded movements of N&SVM~N227SVinclude· landing~ and 'take
om from the·following aUports:
.
:
COUNlRY

QT'f I AiRPORT

AFGHANISTAN

KHWAJA RAWASH {KABUL}

AZERBAlJAN

BAKU

BAHRAIN
CANADA

GANDER. NEWFOUNDlAND

CYPRUS
.CYPRUS

lAANACA

1

?AF'HOS

2
3
1

PASSAGES
lHROUGHlHE

ASRPOR:r
1
.2
:
1
2
I
2

·

MUHARRAQ MILITARY AIRPORT

CzecH ~EPU8L1C

'PRAGU~

EGYPT

'CAlF\O

EGYPT

SHARM EL SHIaJIQ1

1

F1N!.AND
FRANce
G1!FWANY

HaslNKl

'1
4

FRmKFURT

1Q

GERMANY
GET{MANV

KOl.N--BONN

2

ICELAND

lRElJ>.Nt>
IRELAND

l.!BouRGET

. RAMSTEIN

1

KeFlAVlK
'OU'aUN
.SHANNON

1

ITALY

ROMI;

JAPAN

OSAKA
KuwMr
RABAT

KVW.AIT
MOROCCO
No~AY

EVENes

PORTUGAL
PORTUGAl.
SPAIN

SANTA MARIA (AzO\'{ES)

SPAIN
SPAIN

SwrrzEFU.AND
swrrzERLAND
UNiTEP ARAB EMIRATES
r ' UNITED KINGDOM

UNITED KINGDOM
UNITED KINGDOM
UNrrtaD KINGDOM
UNITED KINGDOM
UNm;D KINGDOM
UNITED KINGDOM
UNITeD KINGDOM
UNITEP KINGDOM
\..,
UNITED STATES OF AMERICA

I

·
:

·

l'

30

·

1
1
1
7
2
2
4
1
3·
.2
2

LISBON
BARCELOW.
PALMA DE MAU.oRCA

SAN CRISTOBAL (CANARY ISI.ANDS)
SANTA CRUZ De TENERlFE (CNIAAY
Isl.ANPS~

SPAIN

·

,

\

·
:

.

2
2

GENEVA

ZURICH .

oueN
BeLFAST
EDINBURGH

GLASGOW

3
.2

,

1

,

HAMILTON US NAVAlAtR STATION,

2
2

LEUCHARS
LONDON STANSTED

10
1 I

LONDONDERRY

1
6

BeRMUDA'

LuroN
PROVIDENClAlES (TURKS AND CAICOS)

GUANrANAMo BAY US NAVALAlRSTATION.

i

21
114

CUBA

Amnes~

Intern.alions! 5 April ~006

AI Index: AMR 5110511'2008

UNCLASSIFIED

L0286

".

UNCLASSIFIED

L Press Guidance
June 7, 2006

MARTY REPORT ON RENDITIONS
Question:
Comment on Marty report to the Council of Europe regarding rendition
. flights. Is there anything new in this report?

Answer:
)- While we continue ~o review today's report, based on an initial
·review, we are disappointed with the tone and content of th~ report. It
appears that the report is filled with inaccuracies and innuendo. We
are particularly disappointed that the report failed to account for much·
of the information we [ecentl}3 provided the European
parliamentarians and U.N. Committee Against Torture on this issue.
)- As we've sai.d before, we're not in a positIon to confirm or deny
specific intelligence activities.
)- As Secretary Rice made clear in discussions with the European
Foreign Ministers in December, we believe that renditions are a useful
certain rare circumstances where an
tool in fighting terrorism
individual would otherwise not be able to be brought to justice or
would otherwise be able to escape and avoid capture.

in

> We note that the Marty Report affirms our previous statement that it
would be irresponsible to speak of thousands or even hundreds of .
rendition flights through Europe. The overwhelming· majority of
intelligence flights have no connection at all to renditions.

>

As the Secretary of State made clear in December, the United States
complies with its laws and its treaty obligations, and respects the
sovereignty of other countries, in engaging in such activities.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 06 AUG 2009 200706444

UNCLASSIFIED
L0287

-,

UNCLASSIFIED

)I>

The suggestion that intelligence flights are engaged in illegal ,activity
is unfounded and undermines cooperation between the United States
and Europe that is essential to foiling deadly plots.

)I>

We never transfer persons where we believe it is more likely than not
that the person would be tortured.

j

Background:

I

B5

Swiss Senator Dick Marty presented a report to the 46 members of the
Council of Europe tOday in response to allegations that the CIA was runiling
secret prisons in Europe. The report found there was no direct evidence that
any such prisons existed in Europe, although it stated, "a number of coherent
and convergent elements indicated that secret detention centers have indeed
existed and unlawful inter-state transfers have taken place in Europe." The
report alleges that Romania and Poland were stops on a "rendition circuit,"
and accused 14 European countries, including the U.K., Germany, and Italy'
of violating human rights in connection with CIA activities.

. I

UNCLASSIFIED
L0288

"*. , • •

UNCLASSIFIED

Drafted:

LIPM:

VPadrnanabhan (x7-7965)'
June 7, 2006
Doc # 125873

Cleared:

L:

ffiellinger (ok) .
JDorosin (ok)
RHarris (ok)
KMcGeeney.(ok)

LIPM:
LIHRR:
SIWCI:
DRL:

JNoyes (ok)
EURlPPD: TDavidson (ok)

UNCLASSIFIED
L0289

L0290

*

~
----.
-\
<t:
~
~
~

~

r./J.
r./J.

<t:
i-J

U

S

tIsts "'don't know_They just don't know."
So, presumably, those scientists do Mt
belong to the "consensus." Yet their re::
search is forced
g1obal-wannlng

~annistn. To.beIii!H#M~is·
lIore the truly meoJM!ll}ent facts. To talce
the Issue of rising sea levels, the:$e include:

that the Arctic WllS as warm rti wanner In.

1940; that icebergs have b!en known sinctl

time immemorial; that the evidene~ so far
suggests that the Gl'Wlland ice sheet 1$ actually growing on average. A likely ~ of all
this Is Increased pressure pushing iCe off the
coastal perimeter of that country. wbicllls
depicted so omlnously in Mr. Gore's movie.

~

Q

went'on"tOclaiJii=;;;h'is-~ sclen···

~

~

<t:

~

~

illll1\Ut'"

u.t:

PIIUIl~

i/JIU t!Vl!1l I)U"tlU~Ui~-

pecially those outside the area If climate dy·
namics. Secondly; given that 'the question Qf

human attribution largely cann4): be re.ved, its use in promoting ~ns of disasconstitutes nothing'so much as a bait·
:-switch seam. That is an inauspicious belling to what Mr. Gore claims is not a po'. 'cal issue but a «moral" crus!.
Lastly, there is a clear atte t to estab'h tiuth not bY scientific me ods but by
An earlier attempt at
by trag~. Perhaps
5 time arouild we may
lucky,
To Lfndzen is the Alfred p. Slc!Rn Profes'7 o~Atmospheric Science at

err.

"".;J~

r./J.

i-J

..:-,.'Y......_~,~.~;.

.(./..r

C4
~

~_~,

By Terry Davis

lrJ5)

At about 10 in the rooming on Sunday
August 15. 1994. a small plane lande.d at Vll·
fV'\ lacoublay military allport outside Paris. On
~ board was a team of agents from the Direc-

l.r)

tion de la Surve:11ance du
Territofre, or DST-broadly
speaking. the French equiva-

'In Europe, we .

lent to the CIA. Their handreject the bogus
cuffed and hooded t>rlsoner
had been captured ~
choice between
hours before in the Sudanese our security and
capmrror lCbaitoum. His
. our freedom.'
name was lllich Sanchez .
Ramirez. better known as
Carlos the Jackal. self-styled
revolutionll!'Y. terrorist and·murderer.
Two years later, the Euro~ean Commis·
siQII on Human lYWts, a pre ecessor of
the ~uropean .Court of Human Rlgbts,B:;
jected his complaint and ruled that tne circumstances of filS arrest and transfer to
and so-called extraordinarY rendI·
France did not violate the European Contions of sl Qaeda terrorist su~ are a
. few basic and very important detalls.
vention on Human Rights.
This ruling by a Council of Europe body
Carlos did not disappear, nor did he
has been repeatedly useO. by the highest
end up in some Caribbean gulag. He was
officials in the U.S, State Department to
taken to Paris and bro~t before a Judge,

. 1.t )VtlLOb
.

Q

eal:J:.i

(;)
r./J.

<t:

tionallaw. which was drafl;ed i4 difficult
and uncerta.4t times.and has been tested in~
Conventen balance
.s of individuals
the larger comrnuust, effective and
eats faced by sod·
iTOriSm. in Europe,
. .ce be~en our se-

S

Ramirez Sanchez
w!lS sentencea to ~
he .ma, be an an~ f;I;l
ot a martYI'. He Eo-< Eo-<
omplaintl through < 00
e set out to destTo~
~.
Carlos has atoned ~ ~ ~
_ .
.t is important is . 0 :::g 0
that ~privedof the opportu- Eo-< r"'l 8
nity to commit new cr:il1les o~ alternativel~
~
inspire oth~ people to follow his exampler"'l.....
,
There is tl message in all that. A really ~ ~ ~
effective fight against terrorism is one ~
~
which stops more terrorists than it helps « ~ i=lo<
to recruit.
~ Eo-< e:3
d

S

=
«

Mr. Dallis is secretary general of the
~~&~~

Coun~ ~ ~
r"'l=~

~S~

B5

Eo-<<(e:3

oo~<

ef;l;l~
Eo-<r-'r-l

I
~:.\

I

~;;>~

~~~

....

.=-

UNCLASSIFIED

1-/50

Ceeks, Ashley S
From:
Sent:

To:
Cc:
SUbject:

RELEASED
Deeks, Ashley S
Tuesday, December 05, 2006 10:52 AM .
B5
Bellinger, John B(Legal)
Doros;n, Joshua L; Padmanabhan, Vijay M; Filippatos, James
FW: possible letter to editor on renditions

IN PART

B5
"The United States has been in a useful dialogue with the SU, both in a multilateral context and with individual SU member
states, about the appropriate legal framework for the fight against terrorism. However. contrary to recent press reports,
the Unit~d States has not tried to develop a "framework agreemenr on renditions with either Austria or the SU. Rather, as
part of our constructive dialogue with the EU on legal issues. the United States has explained the limited circumstances
under which the United States has used renditions and the legal basis for those renditions.
The United States has also pointed out that European countries have used renditions. The U.S: Govemment is well aware
that the renditions reviewed and upheld by the European Court of Human Rights involved renditions of an individual to face
criminal prosecution, but renditions of suspects to stand trial are not the only situations in which renditions are appropriate.
The Council of Europe's Venice Commission asserts that there are only four legal ways to transfer a prisoner to foreign
authorities: deportation, extradition, transit, and transfer of a sentenced person to serve that sentence in his country of
origin. Thus, under the Venice guidelines, even the French rendition of Carlos the Jackal would have been improper.
We disagree with the Venice Commission's conclusion. Renditions are not per se unlawful, though renditions should not
be used to transfer terrorist suspects to face torture, and the United States does not transport anyone, and will not'~
transport anyone, for this purpose. We believe, however, that the international community must continue to be abl~to use
renditions· not only to bring terrorists to justice but also to prevent terrorist suspects from remaining at large to plan future
attacks."

UNITED STATES DEPARTMENT OF STATE
CLAsSIFICATION: UNCLASSIFIED
DATE/CASE ID: 06 AUG 200,9 200706444

1

UNCLASSIFIED
L0291

I

I

...

• t

I'"

UNCLASSIFIEIRELEASED IN PART
B5

EUROPEAN PARLIAMENT
_ _ _2_00_4

•

·L--/lSt

_ _....:. . _20_0_9_ _

Session document .

FINAL
.. A6-9999/2007
26.1.2007

REPORT
on the alleged use ofEuropean countries by the CIA for the transportation and
illegal detention of prisoners
(200612200(INI»Temporary Committee on the alleged use of EUfopean
countries by the CIA for the transportation and illegal detention of prisoners
.Rapporteur: Giovanni Claudio Fava

PE 382.246v02-00

RR\382246XM.doc
UNI'U~W'ATES DEPARTMENT OF STATE
REvA:IVIUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 05 SEP 2008 200706444

UNCLASSIFIED

'XM
L0292

I

UNCLASSIFIED

CONTENTS
Page
MOTION. FOR A EUROPE~ PARLIAMENT RESOLUTION

3

EXPLANATORY STATEtv1ENT

:

.Annex 1:
~ex 2:

37
~

:

·:

Annex 3:
·

PROCEDURE

XM

50
64

Annex 4:

PE 382.246v02·00

35

:

2177

70

.'

77

RR\382246XM.doc

UNCLASSIFIED
L0293

UNCLASSIFIED

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
on the alleged use of European ~ountries by the CIA for the transportation and illegal
detention of prisoners .'
.

(Z006!2200{lNl)

The European Parliament,
having regard to its resolution of 15 December 2005 on the presumed use ofEuropean
·countries for the transportation and illegal detention ofprisoners by the CIA I ,
having regard to its decision of 18 January 2006 setting up a Temporary Committee on
the alleged use ofEuropean countries by the CIA for the transportation and illegal
.
.
detention of prisoners2,
having regard to its resolution of 6 Ju'ty 2006 on the alleged use ofEuropean countrieS
by the CIA for the transportation and illegal detention of prisoners, adopted midway
through the work ofthe TerJ,lporary Committee3,

I

.I

having regard to the delegations which the Temporary Committee sent to the Former
Yugoslav Republic ofMacedonia, the United, States, Gennany, the United Kingdom,
R~mania, Poland and Portugal,
having regard to the hearings, numbering no fewer than 130, held by the Temporary
in the course of its meetings, delegation missions and confidential
interviews,

Committ~e

having regardto aU the written contributions received by the Temporary Committee or
to which it has had access, particularly the confidential documents forwarded to it (in
particular by the European Organisation for the Safety ofAir Navigation (Eurocontrol)
and 1he German Government or which it has obtained from various sources.
having regard to its resolution of30 November 2006 on the progress made in the EU
towards the Area of freedom: security and justice (AFSJ) (Articles 2 and 39 of the EU
Treaty)4, notably its paragraph 3,
having regard to its resol'ution of 13 June 2006 on the situation of prisoners at
Guantanam0 5,
havi!1g regard to Rule 175 of its Rules of Procedure,
having regard to the report ofthe Temporary Committee on the alleged use 'ofEuropean
countries by the CIA for the transportation and i Ilegal detention of prisoners
(A6~0000/2006),

•J

Texts Adopted, P6_TA(2005)0529.
Texts Adopted, P6_TA(2006)0012.
Texts Adopted, P63A(2006)0316.
Texts Adopted, P6_TA-PROV{2006)0525.
Texts Adopted, P6]A(2006)0254.

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UNCLASSIFIED

PE 382.246v02-00

XM
L0294

..

UNCLASSIFIED
A. . whereas, in its resolution of 6 July 2006, Parliament decided that 'the Temporary
Committee would continue its work. for the remainder of its established twelve-month
term, without prejudice to the provisions of Rule t 7S of its Rules ofProcedure on the
possibility of extending the term"
B.·

wh~reas, in adopting its resolution of22 November 199Q on the Gladio affair'-~ it drew
attentjon, more than 16 years ago, to the existence of clandestine operations involving
intelligence services and military organisations without ~dequate democratic control,

C.

D.

E.

F.

G.

D
. 2

whereas the pro~ibition oftorture is a peremptory norm ofiritemationallaw (jus
cogens) from whiCh no derogation is possible and the obligation to protect against,
investigate and sanction torture is an obligation owed by all states (erga omnes), as
provided by Article 5 of the UniversllJ Declaration of Human Rights, Article 7 ofthe
International Covenant on Civil and Political Rights, Article 3 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
and the related case law, Article 4 of the CharterofFWldamental Rights, and national
constitutions and laws; whereas specific conventions and protocols on torture and
monitoring mechanisms adopted at the European and international level demonstrate the
i.mportance attached to this inviolable norm by the international community; whereas
ih~tUse'\'{ffidjpJq~~ic!~~~C~~5illl'inc0mpatiokIMjdr!14l~,:9t5Jig~tiop,

OJ C 324, 24.12.1990, p. 201 .
OJ C 364, 18.12.2000, p. 1.

PE 382.246v02-00

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4/77

RR\382246XM.doc

UNCLASSIFIED
L0295

UNCLASSIFIED

D

ll·

whereas in democracies in which the respect for the rules of Jaw is inherent the fight
against terrorism cannot be won by sacrificing or limiting the very principles that
terrorism seeks to destroy, notably, the protection ofhuman rights and fundamental
freedoms must never be compromised; whereas terrorism can and must be fought by
legal means and must be defeated while respecting international and national law,

I.

. whereas the United States (US) administration's strategy to combat terrorism has made
use ofpervasive instruments to monitor sensitive data relating to European citizens,
su~b as the Passenger Names Record (PNR) agreement, and to monitor bank details
through the Society for Worldwide Interbank Financial Telecommunication (Swift)
network.,
.
.
.

J.

whereas on 6 September 2006, US President George W. Bush confmned. ~at the
Central InteJJigence Agency (CIA) was operating a secret detention programme outside
the United States, .

K.

whereas President George W. Bush said that the vital information derived from the
extraordinary rendition and secret detention programme had been shared with other
countries and that the programme would continue, which raises the strong possibility
that some European countries may have received, knowingly or unktiowingly,
infonnation obtained under torture,
.

J
B5
B5

L.

whereas the Temporary Committee has obtained, from a confidential source, records of
the infonnal transatlantic meeting of European Union (EU) and North Atlantic Treaty
Organisation (NATO) foreign ministers, including US Secretary of State Condoleez:za
Rice, of7 December 2005, conftrming that Member States had knowledge of the
programme ofextraordinary rendition, while all official interlocutors ofthe Temporary
Committee provided inaccurate infonnation on this matter,

M.

whereas the Temporary Committee has obtained, from a confidential source, records of
meetings of the CQuncil's Working·Party on Public International Law (GOmR) and
Transatlantic Relations Working Party (COTRA) with senior representatives ofthe US
.Department ofState during the first halfof2006 (notably on 8 February and 3 May
2006), while it was provided by the Council Presidency only with a summarised version
ofthese documents; whereas the documents sent by the Council to Parliament
.concerning those meetings in answer to Parliament's specific request, were incomplete
summaries ofthe proceedings with essential parts missing,

N.

whereas the information on these meetings was not notified to Parliament and absolute
.
secrecy was maintained in relation to their proceedings,

O.

whereas, in the present resolution, 'European countries' should be understood as
meaning Member States and candidate and associate countries, as outlined in the
mandate of the Temporary Committee adopted on 18 January 2006,

I.

Recalls that terrorism represents one ofthe main threats to the security ofthe European
Union and that it must be fought with lawful and coordinated efforts by all European
governments, in close collaboration with international partners and notably with the
United States, along the Hnes of the strategy defined at United Nations (UN) level;
underlines that the fight against terrorism must be fought on the basis of, and in order to

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UNCLASSIFIED

I

PE 382.246v02-00

. XM
L0296

UNCLASSIFIED
protect,our common values ofdemocracy, the rule of law, human rights and '
fundamental freedoms; furthennore stresses that all the work carried out by the
Temporary Committee is intended to make a contribution towards the development of
clear and'focused measures in the fight against terrorism, which are commonly accepted
and respect national and intemationallaw;
B5

3.

Is convinced that the rights ofthe individual and full respect for human rights contrib,ute
to security; considers it necessary that in the rdationship between the need for security
and the rights of individuals, human rights must always be fully respected, ensuring that
suspected terrorists are tried and sentenced while due process is observed;

~

4.

Emphasises that the positive obligation to respect, protect and promote human rights is
binding, regardless of the legal status ofthe individual concerned, and that any
discriniination among EU nationals. residents ofMember States or any other person
entitled to protection from, or otherwise under the jurisdiction of, the Member States
must be avoided;

5.

Recalls that the purpose ofthis resol ution, based on the report ofthe Temporary
Committee, is to determine responsibiHties for the facts that it has been ~ble to examine
on the one'hand and to consider ways of preventing any repetition ofthe abuses and
violations perpetrated in connection with measures against terrorism on the other;

6,

Notes the statement made by US President George W. Bush on 6 September 2006,
according to whom "a small number ofsuspected terrorist leaders and operatives
captured during the war have been held and questioned outside the Unite~ States, in a
, separate programme operated by the CIA" and that many ofthe persons who had been,
detained there, had subsequently been transferred to Guantanamo ~ it is strongly
suspected that other risoners are still held in secret laces ofdeten ion; notes the report
of the ederal Bureau ofInvestigation (FBI) of2 January 2007 mentioning 26
testimonies ofmistreatment in Guantlinamo since 1I September 2001;

7.

Deplores, in this context, the inability of the Council- due to the opposition of certain
Member States,~ to adopt conclusions in response to that statement at the General
Affairs and External Relations Council of 15 September 2006, and requests that the
Council adopt them urgently, to dissipate any doubt as to the Member State
governments' cooperation with and connivance in the extraordinary rendition and secret
prisons programme in the past, present and future;

8.

Calls on the Council and the Member States to issue a clear and forceful declaration
calling on the US Administration to put an end to the practice of extraordinary arrests
and renditions, in line with the position ofParJiament;

9.

Deplores the fac~ that the govemments of European countries did not feel'the need to
ask the US administration for clarifications regarding the existence of secret prisons
outside US territory;

lO, Notes the statements by the legal adviser to the US State Department at a meeting on 3
May 2006 with representatives of the Member States meeting within the Council,
PE 382.246v02·00

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6/77

RR\382246XM.doc

UNCLASSIFIED
L0297

'UNCLASSIFIED,
according to which, in carrying out the extraordinary rendition programme, whose
existence he confirmed, the sovsreigntY: ofthe COlI0trieg CQn4:emed had always been
fiJlly res~ed"; notes that this remark was subsequently confinned at the meeting with
die Temporary Committee delegation which visited Washington;
I I. Thanks the fonner CIA agents who agreed to cooperat~ with the Temporary Committee,
particularly at certain,confide~tial meetings at which they contInned that the
extraordinl1!Y rendition programme had already begun during the 1990s;
12. Welcomes the aQnouncement by the new majority established by the elections to the US,
Senate that it will investigate the CIA's extraordinary .rendition progranime; notes that
this is further confrrmation ofthe relevance of the work ofthe Temporary Committee;
13. Denounces the lack ofcooperation ofmany Member States, and ofthe Q>uncil ofthe
European Union towards the Temporary Committee; stresses that the behaviour of
Member States, and in particular the COWloil and itS Presidencies" has fallen far below
the standar~ that Parliament is entitled to expect;
14. Believes that the serious lack ofconcrete answers to the questions raised by victims, ,
non"governmental organisations (NGOs), the media and parliamentarians has only
strengthened the validity of already well-documented allegations;

15. &q:~~i!he'seriOOs~IDld"rig6rous'work%'&tt~efti -·':.1he, Udiei~·a.ufupri·'

i';-~,;~

Germany an S am concerning the allegations which fall within the remit of e
mporary Committee, and invites the judicial authorities in other Member States to act
similarly on the basis ofthe substantial information made avada6le by the Temporiry
Committee;
.
16. Encourages the national parliaments ofEuropean countries to continue or launch
thorough investigations, in the ways they consider most appropriate and efficient, into
these allegations, including by setting up parliamentary committees of inquiry;
17. Pays tribute to the world press, in particular the US journalists who were the first to
disclose the abuses and breaches of human rights related to extraordinary rendition, thus.
demonstrating the great democratic tradition of the US press;· also recognises the efforts
and good work undertaken by several NGOs on these matters, in particular Statewatch,
Amnesty International and Human Rights Watch;
18.

Recognises that some information in this report, including the existence of secret CIA
prisons, comes from official or unofficial US sources, demonstrating the vitality and
.
self-policing inherent in the US democracy; ,

·19. Expresses its profound gratitude to all victims who had the courage to share their very
traumatic'experiences with the Temporary Committee;
. 20. Calls on all European countries to refrain from taking any action against officials, ,
former officials, journalists or others who, by providing testimony or other information,
either to the Temporary Committee or to other investigating bodies, have helped shed
light on the system of extraordinary rendition, illegal detention and the transportation of
terrorism suspects;

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UNCLASSIFIED
c

"

.'

" - ".. ,,-

,

, " ~'~~\;:~"

are

c
m~ where there
substantial
','
.groun s for behevmg that mdlvlduals would be in danger ofbemg subjected to torture
or ill-treatment;
,

Cooperation with EU instiJutions and,imernoJionaJ organisations

22. Deplores the faiiure by the Council and its Presidency to comply with their obligations
to keep Parliament fully infonned of the main aspects and basic choices of the common
foreign and security policy (CFSP) and of work carried out in the field of police and
judicial cooperation in criminal matters pursuant to Articles 2 J and 39 of the Treaty on
European Union;
23.

24.

25.

Stresses> in this context, that it is wholly unacceptable that the Council should first haveJ'
concealed and then, at Parliament's request, only supplie~ piecemeal information on the '
regular disCussions held with senior officials of the US Administration> asserting that
.
this was the only available version; furthermore denounces the fact that the Council also '
referred to the request by the government ofa third country that the information remain
confidential;
.
'
'

C'

B5

Points out th,at these shortcomings of the Council implicate all Member State
governments since they have collective responsibility as members ofthe Council;
Is outraged by the proposal which was to have been ade b the

il

~~ency to set-u aJomt "@mework" with the US on standards for the rendition of

terronsm suspects> as confmned by those who took part in the meeting ofthe Council's
Working party on Public International Law (COJUR) and the Transatlantic Relations
Working Party (COTRA) with senior representatives ofthe US Department of State
held in Brussels on 3 May 2006;

fJ..

€) Calls
for the disclosure of the results oftbe discussions conducted with the United . .
States> accordi~g to Gijs de Vries, on the definitions of "rendition" and "extraordinary
. rendition";

27.

28.

Takes note of the fact that the Secretary-General (and High Representative for the
Common Foreign and Security Policy (CFSP» ofthe CowlCil of the European Union,
Javier Solana, reaffirmed that Member States must ensure that any measures they take
to combat terrorism comply with their obligations under international law; expresses its
concern about the omissions in the statements made to the Temporary Committee by the
SecJ:etary-General, regarding the Council's discussions and knowledge of the methods
used by the United States in its campaign against terrorism; deplores the fact that'he was
unable to supplement the evidence already in the possession of the Temporary
Committee; asks him to declare all facts and discussions that are within his knowledge
and to promote a European foreign policy and an international anti-terrorism strategy
that respect human rights and fundamental freedoms;
Questions the real substance of the post of ED Counter-terrorism Coordinator

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lTNCLASSIFIED
occupied by Gijs de Vries, since he was unable to give satisfactory answers to th~
questions raised by the Temporary Committee; is ofthe opinion that a revision and
strengthening of his co~petences and powers, as well as the increased transparency
and monitoring ofhis activities by Parliament mus~ be undertaken in the near future,
so as to enhance the European dimension ofthe fight against terrorism;
29.

Deplores the refusal by th~ Director of the European Police Office (Europol), MaxPeter Ratzel, to appear before·the Temporary Committee, particularly because it has
emerged that liaison officers, in particular for the US intelligence services, were
seconded to the Office; requests that he provide Parliament with comprehensive
infonnation concerning the role ofthose liaison officers, their tasks, the data to which
they bad access and the conditions for such access;

30.

.Thanks Commission Vice-President Franco Frattini for his cooperation with the work
of the Temporary Committee and encourages the Commiss~on to step up its work in
the context ofthe continuing efforts to ascertain the truth and find ways of preventing
any repetition ofthe facts analysed by the Temponuy Committee;

31.

Welcomes, in particular, the commitment shown by Vice·President Frattini to
launching a Euro-Atlantic cooperation framework in the fight against international
terrorism, with hannonised rules on the protection of human rights and fundamental
freedoms;

32.

Thanks Eurocontrol, and notably its Director, for its excellent cooperation and for the
very useful infonnation which it shared with the Temporary Committee;

33.

Appreciates the close cooperation which it has maintained with the Council ofEui'ope,
particularly its Parliamentary Assembly and its Secretary-General, and encourages the
Committee on Legal Affairs and Human Rights - and its Chairman, Senator.Dick
Marty - to continue its work; endorses the recommendations made to the Committee
of Ministers by the Secretary-General, Terry Davis; stresses the convergence ofthe
findings ofthe two committees to date; .
,

34.

Expresses its deep concern with the refusals or"the fonner and current SecretariesGeneral ofNATO, Lord Robertson and Jaap de Hoop Scheffer, to appear before the
Temporary Committee or with that organisation's rejection of its request for access to
the decision taken by the North Atlantic Council on 4 October 200 I concerning the
implementation ofArticle 5 ofthe North Atlantic Treaty following the attacks on the
United States on 11 September 2001; reiterates its request to make the document
public and at least to provide information on its contents, its past and CUtTent
implementation, whether it still remains into force and-whether CIA flights have
operated within its framework;

35.

.Thanks the speCial rapporteurs ofthe United Nations, Manfred Nowak (on torture) and
Martin Scheinin (on lhe promotion and protection of human rights in connection with
counter-terrorism measures) for their contributions to the work ofth~ Temporary
Committee, while regretting that it was not possible for the High Commissioner for
Human Rights, Louise Arbour, to meet it; thanks the European Network of Experts on
Human Rights and notably its Co-ordinator, Olivier De Schutter, for their contribution
to the works of the Temporary Committee;

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UNCLASSIFIED

Infor~ion analysed by the Temporary Committee

Extraor:dinary rendition and the misuse ofairspace and airports

36.

5

.

37.

.

.

Deplores tile fact that the families ofthe victims are kept in complete ignorance ofthe
fate of their relatives;

i.'

., :;:;iaw·~-t:.\~tl"~I~£"~%·:~ii,,,."<r;,:·:').li'U""Cf.""~\'
cI,:.~~~t·~·t.~~~~~,~eu~J;~somw~
~~:-I.~·.'

38.

,

~~.~
"-'t~"''''~j

,

N\,m;
'f;~" .~I'

.... " .

''''Q!.JD.

"tmlffie y

4~?;'''''''·'*t...

e e en IOn or ~e

loti'iiito' ell

'It;:,·,·' ..'~'

B5

..1!1.'\l\,,\~o
~.1"
J'IZ!"':'~:" n
• ...

n v.'m ,',.<

;;v i!:',,;"

oay in .

f

thtr countnes 0 In IVl uals"f6mfaUy accused of very 'serious crimes, in order to
transfer them to European soil 'in order to face criminal charges before a court with all
the legal guarantees ofa judicial system;
39.

.~~~J.lf_~~.used by the Un!ted States in'
tHe, Ight agamst terrorism; conaemns, further, Hie acceptance and CODceahng oftbe.
practice, on several occasions, by the secret services and governmental authorities of
certain European countries;

40.

Condemns any participation in the interrogation of individuals who are victims of
extraordinary rendition, because it represents a deplorable legitimisation of that type of
illegal procedure, even where those participating·in the interrogation do not bear direct
responsibility for the kidnapping, detention, torture or i1l~treatment of the victims;

41.

Considers that the practice ofextraordinary rendition has been shown to be
counterproductive in the fight against terrorism and that extraordinary rendition in fact
damage~ and underinines regular po lice and judicial procedures against terrorism
suspects;

42.

S4'etS'e'Srtbau·t1le'ast~~fij:4iJ-igb~,~l;a;t¢:by.j.tlie~€I~f1e'W:;iiito(Eur.6peatl~airsp~r

. stoppe\ii.~~BiJffl~arr.portS~fW,e:e~~lh~t1n4.~,¢'~QfUtitm4}!hw~mkQ~O~5;1:iO'~1',

."~·,"li"""'nl.I,Lh..
...dAoAjo!ow:t'lrl'specifieo~ililliib'~t'!'of1U'fli+~~'!fli::mtS:1·for~ttWs~llurnnse·""",
.Y1'.J.t.:I. ~ ..~~~i?'~~~"m~~~.~-:,-;
.
~"J"
&,"&
..
p.-.~
,

" mt~>3.~.~

re$U!,

b ' ,

,~;

, -0

. .. 'b":~

m~~~!lf@'(t4!:1s~,~~~~iftffned

" Wiliile';\on:tlicFotOer..nand l"

n~tp,~n,Jtb,w",q~f.tifjgli'W'1i1il~~~h\ti'i~lft),i%Wao'idiij~ji~ija!ti9~~ ~~~' ",- ,... '"'''' ' .-.'
~l.«,.~

43.

-.

,,

•

Regrets that European countries have been relif{tJ
~~:tf.qn~~~ffi~li:;~·,~;;
.
.' 'f!iw.0.1~ by turning a blind eye or adl ng flights operated by the <;IA
'w
, on srille' occasions, were being used for extraordinary rendition or the illegal

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UNCLASSIFIED
transportation ofdetainees, and reca))s their positive obligations arising out of European
Court ofHuman Rights case law, as reiterated by the European C~mmission for
Democracy through Law (Venice Commission);

45.. Recalls that Article 1 ofthe Convention on International Civil Aviation (the Chicago
Convention) sets out the principle that co!1tracting States have Complete and exclusive
sovereignty over the airspace above its territory, and accordingly does not imply any
exclusion from the States' full responsibility for the observance ofhuman rights within
their te~itory, including the airspace above it;
46. Em hasises that the CIA has been usio civil aviation rules to b ass the Ie al
obligations or state alfC ,mcludiog those operated ,by the military and the police, as
provided in the Chicago Convention; recalls that Arti~le 4 of the ChIcago Convention
provides that: "Each contracting State agrees not to use civil aviation for any purpose
inconsistent with the aims ofthis Convention";
47.

Conflfffis, in view of the additional infonnation received during the second part ofthe
proceedings ofthe Temporary Committee, that it is unlikely that certain European
gov<!mments were unaware ofthe extraordinary rendition activities taking place in their
territory;

48, Stresses that the Temporary Committee's working documents Nos 7 and 8' provide
strong evidence ofthe extraordinmy renditions analysed by the committee, as well as of
the companies linked to the CIA, the aircraft used by the CIA and the European
countries in which CIA aircraft made stopovers;

,....:>

"

ITALY

'---.::;;;

I

B5

I,

49.

Deplores the fact that the representatives of the current and fonner Italian Governrnents
who are or were responsible for the Italian secret services declined the invitation to
appear before the Temporary Committee;

50.

(f&id~ltlirmi-M~j[t1iioir1I;;"'i-!'

·re#i1 itibJito:· ,the\C"A~'ot?:tlU~)Fj'" -:"li ··'1eJencfXllu-'0niat·

.;"ho· h~d~e~il'g;~t~(irf;~~iftml~W;&~r~Ii~t~~W~~ba~8~fu~fi~'6ti'11fFebrU~

2003, transferred from Milan to the NATO mili~ary base of Aviano by car, and then
flown, via the NATO military base of Ramstein in Germany, to Egypt, where he has
been held incommunicado and tortured ever since;

51. Condemns the active role played by a carabinieri marshal and certain officials of the
Italian military security and intelligence services (SISM!) in the abduction ofAbu
Ornar, as shown by the judicial investigation and the evidence collated by Milan's
Public Prosecutor Armando'Spataro;
52. Concludes, and deplores the fact, that General Nicolo Pollari, former Director of the
Reference numbers: PE 380.593v04-00 and PE 380.984v02-00.

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SISMl, concealed the truth while appearing before the Temporary Conunittee on 6
March 2006, when he stated that Italian'agents had played no part in any CIA
;kidnapping and that the Italian intelligence services were not aware ofthe plan to
kidnap Abu. Omar;

53.

54. Thanks Public Prosecl1tOr Spataro for his testimony to the Temporary Committee,
applauds the efficient and independent investigations he carried out in order to shed
light on the extraordinary rendition ofAbu Groar and fully
ti'i~'.

t¥~

welcomes the opening ofthe proceedings at the Milan Court;
55.

Regrets'that the abduction ofAbu Omar jeopardised Public Prosecutor Spataro's
investigation into the terrorist network to which Abu Gmar 'was connected; recalls'tluit
had Abu Omar not been illegally seized and transported to another country, he would
have faced a regular and fair trial in Italy;

56. 'Takes note that the testimony provided by General Pollari is inconsistent with a number
ofdocuments found on SISMI premises and confiscated by Milan prosecutors;
considers that such documents show. that the 815MI was regularly infonned by the CIA
about the detention of Abu Omar,in Egypt;
.
57. Deeply regrets the systematic misleading, among others, of Milan prosecutors by the
SISMl board with the aim ofjeopardising the investigation into the extraordinary
rendition ofAbu Omar; is extremely concerned about the fact that the SISMI board
appeared to be working to a parallel agenda. and, about the lack of appropriate internal
and governmental controls; requests the Italian Government to remedy this situation
urgently by establishing enhanced parliamentary and governmental controls;

58. Condemns the fact that Italian journalists investigating the extraordinary rendition of
Abu Omar were illegally pursued, that their telephone conversations were tapped and
their computers were confiscated; stresses that testimonies from those journalists have
been ofthe utmost benefit to the work ofthe Temporary Committee;
59. Criticises the length oftime it took for the ltaliaJ:l Government to decide to remove from
office and replace General Pollan;
60.

Regrets that a document on US-Italian cooperation in the fight against terrorism, which
would have assisted the investigation into the extraordinary rendition ofAbu Omar, was
classified by the former Italian Government and that the current government has
confirmed the classified status of this document;
. istet:>ofJtiSti~fs
~f(p"'ioh~~~',';
.l,,'",··,'·
.

61.

ot\•

as '~oori,as:·nnssib
... .•

..-~~ !i~~.;.

,jW.~:~~~tion?.I,5~r.eferrelJ;t9; for.:the·tpurp'ose~()f.,

62.

Condemns the extraordinary rendition ofItalian citizen Abou Elkassim Brite!, who was
arrested in Pakistan in March 2002 by the Pakistani police and interrogated by US and
Pakistani officials, and subsequently rendered to the Moroccan authorities and

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UNCLASSIFIED
imprisoned in the detention facility 'Temara', where he rem~ins detained; emphasises
that the criminal investigations in Italy against Abou Elkassim Britel were closed
without any charges being brought;

63. Regrets that, according to the documentation ,provided to the TempOrary Committee by
Abou ElkaSsim BriteI's lawyer. the Italian Ministry ofIntemal Affairs was at the time in
'con~t cooperation' with foreign secret services concerning the case ofAbou
Elkassim Britel fonowing his arrest in Pakistan;
,

, 64.

65.

Urges the Italian Government to take concrete steps in order to'obtain'the immediate
release ofAbou Elkassim Britel and Abu Omar'so that proceedings against the latter,
can be prosecuted in the Court of Milan;
' "

-

-

,0

~~~g~ltili~~

;~ll\t~$li1'~'···~("'<j'~~J1'*.~r,::~
~~
~~Y'.::.:~~
. ..,.~,~l!'

B5

te"timoo~'W~_~n!irM4~~.ltlvut~.§tAtiP.<.ii'~,itii~~~N:';4"
. ,,~
:~~?[~,.~~.
~ .. :. ~""t.W~I~~·lf~~S~1t;~~i,:. .....w~~~~:'·~~.·~}'t- ....... ~r~·"~~"'~:'·~····

: 66. Notes the 46 stopovers made by CIA..operated aircraft at Italian airports and expresses
serious concern about the purpose ofthose flights which came from or were bound for
countries linked with extraordinary rendition circuits'and the transfer ofdetainees;
deplores the stopovers at Italian airports of aircraft which have been shown to have been
used by the CIA on other occasions for the extraordinary rendition of, Bisher Al-Rawi,
Jamil EI-Banna, Abou Elkassim Britel, Khaled EI-Masri, Binyam Mohamme<L Abu
Omar and Maher Am and for the expulsion of Ahmed Agiza and Mohammed El Zari;

I

1HE UNTJED ({mGOOMI
67.

.

B5

Deplores the manner in which the UK Government, as represented.by its Minister for'
Europe, cooperated with the Temporary Committee; is extremely,surprised at the letter
ofthe Minister sent to Parliament's President,

68. Thanks the AU-Party Parliamentary Group on Extraordinary Renditions (APPG),

comprising members ofthe House of Commons and the House ofLords, for its work

and for providing the Temporary Committee delegation to London with a number of
highly valuable documents;
69. @~dtffi~~@e:'e~o.t4iit~1t~_!~iQq:;
'~~r<A!,,~W' an Iraqi citizen and resident
of the United Kingdo
' ...
~.,.,,, -....
. itizen and resident ofthe
United
Kin g
dom, ,'"
ti~~{l&tt~';l>ia~UixNov."·mber
.
,
'
....
, -", lHY.--_'._I.'"""",,!r., .. ,
2r.iniJ~fi:i~~oy.ef~
.5~taii'e~t§;·;and flown to Afghanistan and then to Guantanamo,
~f.7~~~1A~~~~~t\.-;~"
]:lv.;rlF1l'~i'"
where they 'remain' etained without trial or any form ofjudicial assistance;

D

B5

,

70. Points out that the telegrams from the UK security service MIS to an unspecified foreign
government which were released to the Chairman'.ofthe APPG, An~rew Tyri~, suggest
that the abduction of Bisher AI·Rawi and JamH El~Banna was facilffilted',by~pM-ii~

'~~~nAA~~;;rtirtm4U~4f~p~ii¢a~9~11l~~Iig~}it9:!~~~i~;~:'.,~~

71. Criticises, the unwillingness ofthe UK'Government to provide consular assistance to
Bisher AI-Rawi and Jamil E1~Banna on the grounds that they are not UK citizens;
72.

Condemns the multiple extraordinary rendition of Binyam Mohammed, Ethiopian
citizen and resident of the United Kingdom; points out that Binyam Mohammed has

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been held in at least two secretdetention facilities, in addition to military prisons;
73. Is deeply disturbed by the testimony ofBinyam Mohammed's lawyer, who gave an
account of the most horrific torture endured by his client to the official delegation ofthe
TempoT1UY Committee to the United Kingdom;
74.

75:

Emphasises that the former UK Secretary of State for Foreign and Commonwealth
Affairs, Jack Straw, conceded in December 2005 that UK intelligence officials met
Binyam Mohammed when he was arrested in Pakistan; points o~t in this respect that
some,ofthe questions put by the Moroccan officials to Binyam Mohammed appear to
have been inspired by information supplied by the UK;

Condem~s the extrnordinaTy rendition of~'iD~~~y~l~

who met the
official delegation ofthe Temponuy Committee to the United Kingdom, and who was
arrested in Zambia in March 2002 and subsequently flown to Guantanarno; regrets the
fact that Martin Mubanga was interrogated by British officials at Guantanamo, where'he
was detained and t
V(ithout trial or any fonn ofjudicial assistance
and
.-:(

,lears

76. Thanks Craig Murray, former UK Ambassador to Uzbekistan, for his very valuable
testimony to the Temporary Committee on the ex.change of intelligence obtained under
torture and for providing a copy ofthe legal opinion of Michael Wood, fonner legal
advisor to the UK Foreign and Commonwealth Office;

071.

Is Q6~~.iiW~~83r()pihiOfi, according to, which 'receiving or
possessing' information extracted under torture, in so far as there is no direct
participation in the torture, is not per se prohibited by the UN Convention against
Torture and other Cruel, Inhumane or Degrading Treatment or Punishment; expresses
its outrage at any attempt to obtain infonnation by means oftorture, regardless ofwho
is involved; ,

B5

78. Expresses serious concern about the,170 stopovers made by CIA-operated aircraft at UK
airports, which on many occasions came from or were bound for countries linked with
ex.traordinary rendition circuits and the transfer of detainees; deplores the stopovers at
UK airports ofaircraft which have been shown to have been used by the CIA, on other
occasions, for the extraordinary rendition ofBisher AI-Rawi, Jamil El-Banna, Abou
Elkassim BriteI, Khaled El;.Masri, Binyarn Mohammed, Abu Omar and Maher Arar and
for the expulsion of Ahmed Agiza and Mohammed EI Zari;

BS
GERMANY'

,1

_

79. Acknowledges the good cooperation on the part of the German Qovernment by
providing restricted documents to the Chairman and the rapporteur of the Temporary
Committee; regrets, on the other hand, that no representative ofthe Gennan
Government was able to appear before the Temporary Committee;

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UNCLASSIFIED
80. Welcomes the excellent work ofthe Gennan Parliament inquiry committee and
expresses its full s~pport for the continuati~n ofthat committee's work;
81. Thank$ Munich Public Prosecutor Martin Hofmann for his testimony to th.e Temporary
,
Committee and applauds all ongoing judicial inquiries in Gennany;

....'

82.

~

';~~tion

estimony to the Temporary Committee,

83. Condemns the extraordinary rendition of Turkish citizen and reside!}t ofGermany Murat
~~:~ho gave testimony to the Temporary Com~ittee and who ,
.•.

,

84

.

Points out that. according to confidential institutional information, the German
.-. ,.
,..tftIi~t~;';;Z~1h~ld.S:;,oW,4.'t~~iri;~1iZ';f~'i'rl~~~·{;Kj~"1.;rW;.h'W:;':f.f(,jjif i6~~
F!~.~"','~~~....~, Y~J ~.tfjf.'~~~f.,f~;r'"';)~\.~:;"'~ ~ ·.,... ,..t.~~~ ...~~~~~f:ffl.~~~..w.~J.; 1~", ~ ...
tes'that on many occasIOns since 2002, Murat Kurnaz's lawyer waS told
y e'
an Government that it was impossible'to open negotiations with the US
Government on his release because Murat Kumaz was a Turkish citizen; notes that aU
investigations concluded, as early as the end ofOctober 2002, that Murat Kumaz posed
no terrorist threat;
Regrets the fact that Murat Kumaz was interrogated twice, in 2002 and in 2004, by
German officials at Guantanamo, where he was detained subject to neither formal
charge nor trial and without judicial assistance; regrets the fact that German officials
denied him any assistance and were only interested in questioning him;

86. Fully supports the investigation launched by. the public prosecutor in Potsdam,
transferred to the Public Prosecutor in TiibingenIKarlsrnhe on 25 October 2006, into
unknown perpetrators in order to establish whether Murat Kumaz was ill-treated in
Afghanistan by German soldiers belonging to the Kommando 'Spezialkrafte (KSK), the
German army's special operational forces, before being sent to Guantanamo;
87. Notes that during his interrogations Murat Kumaz was confronted with details from his
personal life; notes that this gives rise to the suspicion that even before he left the
country Murat Kurnaz was the subject ofsurveillance of a closeness which can
normally only be provided.by domestic intelligence services;
~8.

.Appreciates the, German Government's initiative in January 2096 which led to the
release of Murat Kurnaz;

89. Condemns the extraordinary rendition ofthe Gennan citizen Mohammed Zammar,
arrested without formal charge on 8 December 2001 at Casablanca airport in Morocco
and detained and tortured in Morocco and Syria;
.
90. Notes that, according to a confidential institutional source, on 26 November 2001 the
German Federal Criminal Police Office provided details of Mohammed Zammar's
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whereabouts to the US Federal Bureau of Investigation (FB}), and that this facilitated
Mohammed Zammar's arrest;

91. Points out that, subsequently to a meeting between the officials of tile Gernian Federal
Chancellery and Syrian intelligence officials in July 2002, Gennan prosecutors dropped
charges against several Syrian citizens in Gennany while the Syzjan authorities allowed
German officials to meet Mohammed Zainm . e S 'an rison Far' Fatastin, as also
con mne y a con I ential institutional source; regrets that Mohammed Zammar was
interrogated by Gennan agents in that prison;
92. Calls on the German Bundestag's First Committee ofInquiry, ~ the context ofthe
forthcoming expansion of its remit, to investigate the case which recently came to light
involving the illegal rendition ofthe Egyptian national Abdel-Halim Khafagy, who bad
long been resident in Gennany; AbdeJ-Halim Khafagy was pr~l>ably arrested in Bosnia
and Herzegovina in September.2001 on suspicion ofbeing a terrorist and abducted to a
. prison on the US 'Eagle Base' military base in Tuzla, where he was severely mistreated
and detained under inhumane conditions;
93. Is deeply concerned at information contained in an unclassified document made
available to the Temporary Committee wllich shows that th~ illegal rendition of at least
six Alg~rians from Tuzla via Incirlik to Guantanamo was planned at the US European •
~mmand (USEUCOM) military base near Stuttgart; cans on the German Bundestag to

investigate without delay whether those alleged renditions involved breaches of the
Forces Status Agreement or other agreements or treaties concluded with U~ military
forces on German territory, whether further illegal renditions were planned by
USEUCOM and whether German liaison officers were involved in any way;
94.

Expresses serious concern about the 336 stopovers made by CIA-operated aircraft at
German airports that on many occasions came from or were bound for countries linked
with.extraordinary rendition circuits and the transfer of detainees; deplores the
stopovers in Germany of aircraft which have been shown to have been used by the CIA,
on other occasions, for the extra~rdinarY renditions ofBisher Al-Rawi. JamB EI-Banna,
Abou Elkassim Britel, Khaled EI-Masri, Binyam Mohammed, Abu Omar and Maher
Arar and for the expulsionof Ahmed Agizaand Mohammed El Zan; is particularly
concerned that one ofthe flights referred to was destined for Guantanamo; strongly
encourages the German authorities further to investigate that flight;

95.

Notes the allegations concerning the temporary detention and mistreatment of suspected
terrorists at the US military prison in Mannheim-Blumenau, welcomes the
investigations opened by the Federal Public Prosecutor's Office and hopes that the
. German Bundestag and/or the competent committee of inquiry will investigate this case
.more closely;

.

')

SWEDEN

96.

Takes note of the position ofthe Swedish Government'expressed in the letter
transmitted to the Temporary Committee by its Foreign Minister Carl BiJdt; regrets that
no representative of the government was able to appear before the Temporary
Committee in order to hold an exchange of views on its position;

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97. Condemns the fact that Sweden's expulsion in. December 200 1 of Mohammed EI-Zan
aqsJ Ahmed Ag~ Egyptian nationals who were seeKmg asylum In Sweden, was based
s91ely on diplomatic' assuranc~s from the Egyptian G,overnment, which did not provide
effective safeguards'against torture; also acknowledges thllt the Swedish government
hindered them from exercising their rights in accordance with the European convention,
by not infonning their lawyers until before they had arrived ,in Cairo; deplores the fact
that the Swedish authorities accepted an US offer to place at their disposal an aircraft
which benefited from special overflight authorisation in order to transport the two men
to Egypt; ,

B5

98. . Deplores the fact that the Swedish security police lost control over the enforcement of

the expulsion of Ahmed Agiza and Mohammed EI-Zari to Egypt, outside the rule of
law, by remaining passive during the degrading treatment ofthe men by US agents at
Bromma airport;
99.

Underlines that the decision of tile expulsion was taken at the'highest executive level,
from which no appeal was possible;

100. Fully endorses th~ UN Human Righ~ Committee's decision of 6 November 2006 in
which it found that Sweden had breached the absolute ban on torture; similarly endorses
a sep~ate ruling by the UN Committee against Torture of20 May 2005, which
con~luded that Sweden had violated the UN Convention against Torture and other
Crnel, Inhuman or Degrading Treatment or Punishment and stated that "procurement of
diplomatic assurances (from Egypt), which, moreover, provided"no mechanism for their
enforcement, did not suffice to protect against this manifest risk";

lOI. ·Thanks the Swedish ChiefParliamentary Ombudsman, Mats Melin, for his testimony to
the Temporary Committee and applauds his investigation which concluded that the
. Swedish security service and airport police ''were remarkably submissive to the
American officials" and "lost control ofthe enforcement", resulting in the ill-treatment
of Ahmed Agiza and Mohammed EI-Zari, including physical abuse and other'
humiliation, at the airport immediately bef?re they were transported to Cairo;
AUSTRIA

l02. Notes the written explanations given on behaJf ofthe Austrian Government but regrets
that the Austrian Government did not consider it appropriate to appear before the
Temporary Committee in order to hold an exchange of views about its position;
103. Notes that the persons referred to in the following paragraphs, Masaad Omer Behari and
Gamal Menshawi, are individuals who did not and still do not have Austrian citizenship,
whose freedom of movement was unrestricted; notes that the two men left Austria
voluntarily and without undergoing checks by the Austrian authorities, and that they
were arrested by foreign agencies, outside Austrian territory and outside the area of
influence ofthe Austrian authorities, with'no Austrian involvenit<nt; notes that,
accordingly, these are clearly not cases of rendition of persons to foreign authorities;
104. Condemns the fact that Masaad Omer Behari, a Sudanese citizen and resident ofAustria
since 1989 who gave testimony to the Temporary Committee, was abducted at Amman

airport on 12 January 2003 on his way back to Vienna from Sudan;
105. Deplores the fact that Masaad Orner Behari was later illegally secretly detained in a
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prison close to Amman run by the Jordan General Intelligence Department, without trial
orIegal assistance, and that he was tortUred and ill-treated there until 8 April 2003, when
he w~ released without charge; recalls that ajudicial procedure was s~ed by the
Austrian ~uthorities against Masaad Orner Behan in September 2001, which was
subsequently closed in August 2002, without charge;
106. Deplores the fact that, according to Masaad Orner Behari's statement to th.e Temporaty

Committee; there may have been cooperation between the US, Austrian and Jordanian.
authorities in respect of his case;
J07. Condemns the abduction ofEgyptian citizen and resident of Austri~ GamaJ Menshawi,
who was arrested on his way to Mecca at Amman airport in February 2003, and later
brought to Egypt where he was secretly detaUted uJitil 2005 without trial or. legal rights;
recalls that no allegations have ever been made against Gamal Menshawi in Austria; .

108. Regrets that, having considered the above paragraphs, neither a special nor a
parliamentary inquiry was carried out in Austria into the possible involvement ofthe
Austrian authorities in the two cases referred to; urges the Austrian Parliament to start
appropriate inquiries as soon as possible;
SPAIN

109. Welcomes the declaration of good cooperation with the Temporary Committee ofth.e

Spanish Government, in particular, the testimony given to the Temporary Committee by
its Minister for Foreign Affairs; regrets, nevertheless, that the Spanish Government
ultimately did not authorise the Director ofthe Spanish Intelligence Services to appear
before the Temporaty Committee. several months after having been requested to do so;
110. Thanks the Chief Prosecutor Javier Zaragoza and Prosecutor Vicente Gonzlil~ Mota of
the Audiencia Naciona/ for their testimony 'to the Temporary Committee and applauds
their investigations into the use of Spanish airports for the transit of CIA aircraft within
the context of the programme of extraordinary rendition; encourages the·prosecutors to
investigate further the stopovers of the aircraft involved in the extraordinary rendition of
Khaled EI-Masri; .
.

.

.

I II. Applauds the investigative journalism of Diario de Mallorea, which played an important
role in revealing the transit of CIA airerafts through the Balearic Island.airports and the
identification oftheir crews;

112. Recalls the words of ChiefProsecutor Zaragoza that"'there was no obstacle, objection or
trouble from the Spanish Government side in the investigations by the Audiencia
Nacional"; .
113. Calls on the Spanish authorities to take all necessary steps to allow Spanish citizen
Mustafa Setmariam Nasarwho, abducted in Syria in October 2005 and rendered to US
agents, to face a fair trial before competent judicial authorities;
114. Expresses serious concern about the 68 stopovers made by CIA-operated aircraft at .
Spanish airports that on many occasions came from or Were bound for cOlUltries linked
with extraordinaty rendition circuits and the transfer of detainees; deplores the
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stopovers in Spain of aircraft which have been shown to have been used by the CIA in
other countries for the extraordinary rendition of Ahmed Agiza, Mohammed El·Zari,
Bisher Al-Raw~ Jamil El·Barina, Abou Elkassim BriteI, Khaled El-Masri, Binyam
Mohammed, Abu Omar and Maher Arar, according to the legal investigations under
way in Spain and Italy; is particularly concerned that, ofthe above flights, three
originated from or were destined for Guantanamo; strongly' encourages the Spanish
,
Prosecutors further to investigate those flights;
PORTUGAL
115. Welcomes the meeting in Lisb~n wi~ the Portuguese Minister ofForeign Affairs and
the fact'that the Portuguese Government supplied documents and explanations; regrets
that the Portuguese authorities were unable or reluctant to answer ,all the questions
raised by the Temporary Committee delegation in Portugal;
116.

sks the Portu ese authorities to investigate the case ofAbduralunan Khadr. allegedly
caJTied on board the Gulfstream IV N85
om uantanamo to Tuzla in Bosnia and '
Herzegovina on 6 November 2003, with a stopover in Santa Maria on the Azores
Islands on 7 November 2003; calls on the Portuguese authorities to examine this case
and those ofother possible victims transported via Portugal with a view to detennining
whether there should be compensation for violations of human rights;

117. Welcomes the establishment ofthe inter-ministerial working group on 26 September
2006 and the entry into force, on 13 October 2006, of a regulation stipulating that lists
of the names of crew members and passengers on private flights must be submitted to
the Portuguese frontier authorities;
118. Deplores the fact that the former Minister ofDefence, Paulo Portas, and the fonner
Minister ofthe Interior, Antonio Figueiredo Lopes. de.elined invitations to meet the
delegation ofthe Temporary Committee;
119. Notes that some ofthe 91 stopovers made in Portugal enabled the CIA and US military
bodies to cany out the extraordinary rendition of Bisher AI·Rawi, Jamil EI-Banna,
Khaled E1-Masri, Binyam Mohammed and Abu Omar and for the expulsion ofAhmed
Agiza and Mohammed El Zari; is particularly concerned that of those flights, at least "
three originated from or were destined for GuantAnamo; notes that the aircraft involved]
in the rendition ofMaher Arar and Abou Elkassim Britel made stopovers in Portugal on
th,eir return flights;

120. Expresses deep concern at an additional list that the Temporary Committee has
obtained, the authenticity of which the Portuguese Government has not denied, which
indicates that, in addition to the 91 stopovers made, aircraft from a number of countries.
travelling to or from Guantanamo, made 17 stopovers (including three contained in
Eurocontrollists) at the Portuguese airports of Lajes and Santa Maria between 11
January 2002 and 24 June 2006;
IRELAND

121. Welcomes the testimony given to the Temporary Committee by the Irish Minister fo~
Foreign Affairs on behalf of the Irish Government as well as his unequivocal criticism
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of the process ofextraordinary rendition; notes the fact, however, that he failed to
answer all the questions in relation to the concerns that Irish airports may have been
used by CIA aircraft travelling to or from extraordinary rendition missions (as in the
case of Abu Omar);
.. 122. Thanks the Irish Human Rights Commission (IHRC) for its testimony to the Temporary
Committee and endorses its view which considers that acceptance by the Irish .
government ofdiplomatic assurances do not fulfil Ireland's human rights obligations,
which oblige the government acti.vely to seek to prevent any actions that could in any
way facilitate torture or ill-treatment in Ireland or abroad; regrets the decision ofthe
Irish Govemment not to follow the IHRCs advice on this matter to date; notes that there
. is continuing dialogue between the IHRC and the Irish Government;
. '.

D

B5

123. Expresses seriouS'concer:n about the 147 stopovers made by CIA-operated aircraft at
Irish airport~ that on' many occaSions came from or Were bound for countries linked
with extraordinary rendition circuits and the transfer ofdetainees; deplores the
stopovers in Ireland ofaircraft which have been shown to have been used by the CIA,
on other occasions, for the extraordinary rendition of Bisher AI·Rawi, Jamil EI-Bapna,
Abou Elkassim Britel, Khaled EI-Masri, Binyam Mohammed, Abu Omar and Maher
Arar and for the expulsion of ~ed Agiza and Mohammed EI Zari;
124. Notes the. absence ofIrish parliamentary scrutiny of either Irish or foreign intelligence
services and the potential that this creates for abuse;

~onsiders, that, in the absence ofa system of random searches, a ban should be
c::,/imposed on all CIA-operated aircraft landing in Irelan~;
.
126. Urges the Irish Government, in view of the findings of the Temporary Committee, to

agree to launch a parliamentary inquiry into the use ofIrish territory as part ofthe CIA
re~~~ci~~

.

GREECE

127. Expresses serious concern about the 64 stopovers made by CIA-operated aircraft at
Greek airports that on many occasions came from or were bound for countries linked
with extraordinary rendition circuits and the transfer of detainees; deplores the
stopovers in Greece of aircraft which have been shown to have been used by the CIA,
on other occasions, for the extraordimuy rendition ofAhmed Agiza, Mohammed EI- .
Zari, Bisher AI-Rawi, JamB EJ-Banna, Abou Elkassim Britel, Khaled EI-Masri, Binyam
Mohammed and Maher Arar;
CYPRUS.

128. Expresses serious concern about the 57 stopovers made by CIA-operated aircraft at
Cypriot airports that on many occasions came from or were bound for countries linked
with extraordinary rendition circuits and the transfer of detainees; deplores the
stopOvers in Cyprus of aircraft which have been shown to have been used by the CIA,
on other occasions, for the extraordinary rendition of Ahmed Agiza, Mohammed ElZari, Bisher Al-Rawi, Jamil EI-Banna, Abou Elkassim Britel, Khaled EI-Masri, Binyam
Mohammed and Abu Omar;
DENMARK
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UNCLASSIFIED
129. Welcomes the cooperation received from the Danish authorities, while regretting that no
. representative of the government considered it appropriate to ap~before the
Temporary Committee;
BELGIUM

130. Calls on the Belgian Government to disclose the res~lts of all investigations that have
taken place and deplores the fact that Belgium did not conduct a thOrl~ugh investigation
concerning the use ofBelgian airports and the Belgian airspace by aircraft clearly
involved in the extraordinary rendition programme or the transport ofdetainees;
131. Notes the statements of the President of the Belgian Senate Anne-Marie Lizin and
refers to the conclusions of the report ofthe Belgian Senate which deplore the lack of
cooperation by the Belgian intelligent services and the Belgian authorities;

'TuRKEY
132. Expresses its serious concern about the failure ofthe Turkish authorities to extend
diplomatic protection to their national Murat Kurnaz and about the absence ofany step
to secure his release from the prison at Guantanamo~
..
133. Regrets that, on the contrary, the sam~J!~r!!.orities used.the illegal detention'
national to interrogate him at Guaotlinamo;

of their

134. Deplores the silence ofthe Turkish authorities concerning the use of their territory for
the stopover of an aircraft which had taken to Guantanamo the six nationals of or
residents in Bosnia and Herzegovina, of Algerian origin, who were illegally arrested in
Bosnia and Herzegovina;
FORMER YUGOSLAV REPUBLIC OF MACEDONIA

135. Emphasises that a delegation of the Temporary Committee was received in Skopje in
April 2006 by the President ofthe Republic, members of the government and several
officials and thanks them for the welcome given to the delegation; notes, however, a
lack of thorough investigation into the'Khaled EI-Masri case by the authorities of the
Fonner Yugoslav Republic ofMacedonia;
136. Condemns the extraordin
rendition of the Genna" citizen Khaled Et-Masri, abducted
at the border-crossing T~banovce in e onner
edonia on 31
December 2003, illegally held in Skopje from 31 December 2003 to 2~ January 2004
and then transported to Afghanistan on 23-24 January 2004, where he was held until
May 2004 and subjected to degrading and inhuman treatment;
.
137. Urges the Council and its High Representative for the CFSP to shed full light on the fact
that the ED police mission (PROXIMA) was incorporated into the Ministry of Interior .
of the Former Yugoslav Republic of Macedonia and was involved in the work of the
Macedonian Security and Counter-Espionage Service (DBK) at the time when Khaled
E}-Masri was handed over to the CIA; would like to know if it is true that the Council
questioned the EU staff involved in the PROXIMA mission so as to evaluate the level
of infonnation in their possession regarding the case of Khaled el Masri; if appropriate,
asks the Council to provide Parliament with a full account of the investigation;

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138. Fully endorses the preliminary findings ofMunich Public Prosecutor Martin Hofinann
that there is no evidence on the basis ofwhich to refute Khaled EI-Masrils version of
events;
139. Deeply regrets the fact that the authorities ofthe Former Yugoslav Republic of
Macedonia failed to follow up the recommendations made by the Temporary
Committee in its interim report of 6 Ju~y 2006;
.
140. Points out again that the' Former Yugoslav Republic ofMacedonia authorities are
expectc.m to carry out investigations; urges the newly eJected national parliament of the
Former Yugoslav Republic of Macedonia to set up a committee of inquiry as soon as
possible to deal with the case ofKhaled EI-Masri and to cooperate fully with the
ongoing inquiry ofthe German Parliament;
BOSNIA AND HERZEGOVINA ....

I

I.

141. Welcomes the fact that the Government of Bosnia and Herzegovina is the only
European government that does not den~ i1$ particiQation in the extraordinary rendition
of fOUf citizens ofand two esidents in Bosnia and Herzegovina, all ofAlgerian origin,'
an stresses that the Government of Bosnia and Herzegovina IS the only European
government to h~ve accepted formal responsibility for its illegal actions; regrets,
however, that the steps undertaken by the Government of Bosnia and Herzegovina have
not yet resul~ed in the release ofthe six men from Guanmnamo;
142. Condemns the extraordinary rendition ofthose six men, who were abducted in Sarajevo
.on 17 January 2002, turned over to US soldiers and then flown to Guantanamo, where
they remain detained without trial or legal guarantees;
143. Takes note of the testimony given to the Temporary Committee by Wolfgang Petritsch,
fonner High Representative ofthe international community in Bosnia and Herzegovina,
and by Miche;}e Picard, former President ofthe Human Rights Chamber of Bosnia and
Herzegovina, which stated that representatives ofthe international community in Bosnia
and Herzegovina were given adequate notice of the imminent handing-over of the men
referred to the US forces before events unfolded; condemns in this respect the Member
States for their lack of action;

144. Regrets the fact that the international community as represented in Bosnia and
Herzegovina turned Ii blind eye when the decisions ofthe Supreme Court and the
Human Rights Chamber of Bosnia and Herzegovina ordering the release of the men
from custody we:e not implemented;
145. Points out that, according to the information that the TempoTaly Committee. received
from the lawyers ofthe six men, the authorities of Bosnia and Herzegovina were subject
to unprecedented pressure from the US Government, which threatened to close its
embassy, withdraw all staff and cease diplomatic relations with Bosnia and
Herzegovina unless the Government of Bosnia and Herzegovina immediately arrested
the six men on terrorism charges;
146. Notes that Wolfgang Petritsch confirmed that the United States put considerable
pressure on the authorities of Bosnia and Herzegovina and the international community
not to interfere in the renditions and that the commander ofthe international NATO-led
Stabilisation Force in particular rejected any questioning of his activities since he acted
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in his capacity as US military officer;
OTHER EUROPEAN COUNTRIES

147. ,Is concerned about the stopovers made by CIA~perated aircraft in other European
countries' airports and expresses serious concern about the purpose of those flights
which came from or were bound for countries linked with extraordinary rendition
circuits'and the transfer ofdetainees; encourages the authorities ofthose European
countries to launch adequate investigations into this matter;

,Secret detention jaciJitjes

148. Welcomes the investigations carried out into the existence of secret detention facilities
in Europe by Human Rights Watch, the Washington Post and American Broadcasting
Company News (ABC News);
149. Recalls that some journalists at the Washington Post and ABC News, as they confmned
to the. Temporary Committee, were put under pressure n~.!!QJ!..~~ tJ!~.~W E.!1!0pean
cQ.untries, namely Eoland and Romania; wbere there were said 10 have been secret
d~tention facilities;
150. Emphasises that the concept of "secret detention facility" includes not only prisons, but
also all places where somebody is held incommunicado, such as private apartments,
police stations or hotel rooms, as in the case of Khaled El-Masri in Skopje;
.
151. Is deeply concerned that, in some cases, temporary secret detention facilities in
European countries may have been located at US military.bases;

e~
,~~, 5
'~~e 1 ,~:,.".,

,

~~.~
~'~

,)'>'fi

'''''s'''''.-~·

,

'('tW!~!}l~ !i~i\:'If"

,

.',

,.....

.-,\ . . '.

. . •

" '.,i£<,.

' '"

... ....1··.,

~ .~.

-. -..~.'

.

,

~ Points out in this regard the alle:gations concerning the US Coleman Barracks in

Mannheim, Germany, and calls on both the judiciary and the German Bundestag's
inquiry Committee to investigate this case further;

tS4JRegrets that there may have been a lack of control over US military bases by host
European countries; r~calls, however, that the ECHR provides that all State parties are
bound to exercise jurisdiction over their whole territory, including foreign military
bases;

U

ISS. Recalls that the ECHR also provides that every case of detention must be lawful and

must be the result of proceedings prescribed by law, whether national or international;
156, Recalls that imposing or executing or allowing directly or indirectly secret and illegal
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. detentions, which are instrwnents resulting in peoplets 'disappearance" pet se constitute
serious violations pfhuman rights and that the active or passive involvement in such
seCret and illegal detentions by a European country renders that county responsible
under the ECHR;,
ROMANIA

157., Welcomes the excellent hospitality and good.cooperation extended by the Romanian
authorities to the Temporary Committee, including meetings with members ofthe
Romanian Government, as well as the establishment of an ad hoc inquiry committee
the Romanian Senate;
,
'

of

158. Notes, however, the reluctance on the part ofthe Romanian authorities to investigate
thoroughly the existence of secret detention facilities on its territory;
,
159. Regrets that the report issued by the Romanian inquiry committee was entirely secret
except for its conclusions, included in Chapter 7, c~gorically denying thCP.Qssihility
tlt!!!..secret detention facilities could be hosted on B.om~ regrets that the
Romanian inquiry committee heard no testimony from journalists, NGOs, or officials
working in airports, and has not yet provided the Temporary Committee with the report
contrary to its commitment to do so; regrets that taking these elements into
consideration, the conclusions drawn in the Romanian inquiry committee's report appear
premature and superficial;" takes note, however, of the intention expressed by the
Chairwoman ofthe inquiry committee to the Temporary Committee delegation to
consider the conclusions provisional;
,

B5

160. Regrets the lack of control of the Gulfstream aircraft with Registration Number N478GS
that suffered an accident on 6 December 2004 when landing in Bucharest; recalls that
the aircraft took off from Bagram Air Base in Afghanistan, and that its seven passengers
disappeared following the accident; appreciates, however, the good cooperation ofthe
Romanian authorities in handing over the report on the accident to the Temporary
Committee;

1

161. Is deeply concerned to see that Romanian authorities did not initiate an official
investigation process, as any democratic country should have done, into the case ofa
passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mOl
Parabellum pistol with ammunition;
.

162. Expresses serious concern about the 21 stopovers made by CIA-operated aircraft at
Romanian airports, which on many occasions came from or were bound for countries
linked with extraordinary rendition circuits and the transfer ofdetainees; deplores the
stopovers in Romania ofaircraft which have been shown to have been used by the CIA,
on other occasions, fOT the extraordinary rendition of Bisher AI-Rawi, JamB EI-Banna,
Abou Elkassim Brite!, Khaled El-Masri, Binyam Mohammed and Abu Omar and for the
expulsion of Ahmed Agiza and Mohammed EI Zari; is particularly concerned that, of
the flights referred to, two originated from or were destined for Guanmnamo; strongly
encourages the Romanian authorities further to investigate those flights;
163. Is extremely concerned that the Romanian authoritic,s may have lacked control over US
actjv~es in th~ military base at Kogalniceanu airport;

B5

164. Cannot exclude, based only on the statements made by Romanian authorities to the
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PO~:i1i!X.~-SePlices

J

, Temporary Committee delegation to Romania, the
0Erated in Romania j)Il a clandestine twis ami that no efinitive evidence has heeD
provided to contradict any of the allegations concerning the ronning ora secret
detention facility on Romanian soi1~
..~. '"

.

POLAND

165. Deplores th~laring lack ofcooperarlon by the Polish Government 'with the Temponuy
Committee. in particular when receiving the Temporary Committee delegation at an
inappropriate level; deeply regrets that all those representatives of the Polish
Government and Parliament who were invited to do so, declined to meet the Temporary
Committee;
166. Believes that this attitude reflected an overall rej~tion on the part of the Polish
Government of the Temporary Committee and its objective to examine allegations and

establish facts;
167. Regrets that no special-inquiry committee- has been established and that the Polish
Parliament has not conducted an independent investigation;
168. Recalls that on 21 December 2005, the Special Services Committee held a private

meeting with the Minister Coordinator of SPecial Services and the heads of both
intelligence services; emphasises that the meeting was conducted speedily and in secret,
in the absence ofany hearing or testimony and subject to no scrutiny; stresses that such
an investigation cannot be defined as independent and regrets that the committee
released no documentation, save for a single final statement in this regard;
169. Expresses serious concern about the 11 stopovers made by CIA~operated aircraft at
Polish airports that on many occasions came from or were bound for countries linked
with extraordinary rendition circuits and the transfer of detainees; deplores the
stopovers in Poland of aircraft which have been shown to have been used by the CIA.
on other occasions, for the extraordinary rendition ofBishf;lT AI~Rawi. Jamil EI-Banna,
Abou Elkassim Brite}. Khaled EI-Masri and Binyam Mohammed and for the expulsion
of Ahmed Agiza and Mohammed EI Zar;
170. Regrets that following the hearings carried out by the Temporary Committee delegation

in Poland, there was confusion and contradictory statements were made about the flight
logs for those CIA flights, which were tirst said not to have been retained and then said
to have probably been archived at the airport and finally claimed to have been sent by
the Polish Government to the Council of Europe; acknowledges that in November 2006,
the Szymany Airport's management provided the Temporary Committee with partial
information on fli~ht logs;
171. Thanks the former manager of the Szymany airport, for the valuable testimony given
before the Temporary Committee; notes the fact that during 2006 he or she was
. questioned in the framework of a late enquiry concerning the CIA flights, immediately
after'his or her testimony was made public;
,

i. ~ Takes note that, according to different sources. severa} high-value detainees who had

V

been held secretly in Afghanistan in 2003 were transferred out of the ,country in

September and October 2003; underlines with concern that a Boeing 737 with
Registration Number N313 P, used by the CIA for ascertained renditions, flew from
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.Kabul to Szymany airport on 22 September 2003 and was then directed to Guantinamo;
173. :Recalls that, concerning the landing ofthe aircraft referred to at Szymany airport, seven
staffon board were joined by five passengers and that no customs control was carried.
out on those passengers;
to •
-.
.
174. Takes note of the declarations made by Szymany airport employees, and notably by' its
. fanner manager, acCording to which:
in 2002, two Gulfstream jets, and in 2003 ~ four Gulfstream jets with civilian
registration numbers were parked at the edge ofthe airport and did not enter
customs clearance;
orders were given directly by the regional border guards about the arrivals ofthe
aircraft referred to, emphasising tharthe airport authorities should n~t approach
the aircraft and that military staffand services alone were to handle those aircraft
and only to complete the technical arrangements after the landing; .
according to a former senior official ofthe airport, no Polish civilian or military
staffwere pennitted to approach the aircraft;
excessive landing fees were paid in cash - usually between EUR 2 000 and EUR 4
000;
one or two vehicles waited for the arrival ofthe aircraft;
the vehicles had military registration numbers starting with "H", which are
associated with the intelligence training base in nearby Star~ Kiejkuty; .
in one case. a medical emergency vehicle belonging either to the police academy

or the military base was involved;

one airport staffmember reported following the vehicles on one occasion and
seeing them heading towards the intelligence training centre at Stare Kiejkuty;
175. Acknowledges that shortly after, and in accordance with, President George W. Bush's
statements on 6 September 2006, a list of the 14 detainees who had been transferred
from a secret detention facility to Guanmnamo was published; notes that 7 ofthe 14
detainees had been referred to in a report by ABC News, which was published nine
months previously on 5 December 2005 but was withdrawn sbortly thereafter from
ABC's webpage, listing the names of twelve top Al Qaeda suspects held in Poland;
176. Encourages the Polish Parliament to establish a proper in ui com ittee, independent
ofthe Govemmen an. capable of carrying out serious and thorough investigations;
177. Regrets that Polish human rights NOOs and investigative journalists have faced a lack
of cooperation from the government and refusals to divulge information;
B5

I

onsiders that in the light ofthe above circumstantial evidences, it is not possible to
acknowledge. that secret detention centres were based in Poland;
'------' 179. Notes with concern that the official reply of 10 March 2006 from Under-Secretary of
State Witold Waszykowski to Terry Davis indicates the existence of secret cooperation
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agreements, initialled by the two countries' secret services themselves, which excJude
the activities of foreign secret services from the jurisdiction of Polish judicial bodies;

Kosovo (UNDER UN SECURITY COUNCIL RESOLUTION 1244)
180. Expresses deep concern over the fact that the European Committe'e for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishmen~ (CP1) obtained access'to
NATO-run detention facilities in Kosovo only in July 2006;
181. Regrets the refusal ofNATO to provide evidence on the allegations ofillegaJ detention
of terrorist suspects in the prison run by the NATD-Ied peacekeeping force in Kosovo
. (KFOR) at CaIIlP Bondsteel. the only detention facility in Europe where CPT inspectors
were not allowed unlimited access until very recently;
182. Points out in this respect that the testimony given to the Temporary <;:ommittee by the
fonner Kosovo Ombudsman. Marek Antoni Nowicki, connnned that from July. 1999,
inmates were frequently detained at <;;amp Bondsteel, subject only to a decision by the
Omtmander of KFOR ana subject to no Judiciah:iecision or any form of other external
control; recalls that from 2000 to 2001, a number ofpeople were detained also
following administrative decisions of the Special Representative of the UN'SecretaryGeneral and that, according to official data available, 23 peopJe were imprisoned at
Camp Bondsteel for a short period of time by the KFOR Commander in connection
with violent events in Kosovo in spring 2004;
.

Other relevant information co'!ected by the Temporary Commiltee

183. Points out that the Temporary Committee came across information ~ including the direct
testimony of Murat Kumaz - about the interrogation ofGlUUltanamo detainees carried
out by agents ofMember State governments; emphasises that those interrogations were
aimed at collecting infonnation from individuals illegally detained, which is clearly in
contradiction with the public condemnation ofGuantanamo, as expressed at both EU
.and Member State level on several occasions;
184. Encourages the Member States involved to launch adequate investigations into this
matter;

Recommendations

Political recommendations

18S. Considers it necessary that those European countries that have started inquiries and
investigations at governmental, parliamentary and/or judicial Jevel on matters within the
remit of the Temporary Committee should conduct their work as speedily as possible
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and make public the results of the investigations;
186. Urges European countries in relli.tion to which serious allegations have been made
regarding active or passive cooperation with'extraordinwy rendition and that have not
undertaken governmental, parliamentary and/or judicial investigations to commence
'such proceedings as soon as possible; recalls that, according to the case law ofth'e
European Court of Hwnan RightS, there is a positive obligation on Member States to .
investigate allegations ofand ~etion human rights violations in breach ofthe ECf!R.:
187. Calls for the closure of Guantanamo and for European countries immediately to seek the
return oftheir citizens and residents who are being held illegally by US authorities;
188. Considers that all European' countries that have not done so should initiate independent
investigations into aU stopovers made by civilian aircraft carried out by the CIA, at least
since 2001, including those cases already analysed by the Temporwy Committee;
189. Expects to be kept fully informed on all developments concerning an the abover
, mentioned procedures;

I

B5

190. Calls on European countries to compensate the innoc%t VICUJ!l! 01 e?,U'aordinary
rendition and to ensure that they have access to effective and speedy compensation,
including access to rehabilitation programmes, guarantees that there will be no
repetition ofwhat happened as well as appropriate fmancial compensation;
19I. Asks the Commission to undertake an evaluation ofall anti-terrorist legislation, in the
Member States and of GOth formal and informal arrangements between Member State
attd third-counby intelljgence services, from a bumau rights perspective. to re'Li~w
legislation where"international or Eoro ean human rightS bodies considers that it could
lea to breach of human rights and to present proposa s or actions in order to avOl any
repetition ofthe matters under the remit ofthe Temporary Committee;

...-

~1-"--92"4.

~------'

Considers it necessary to review by limiting and re~trictively defining the except~ns
that flow from the notion of 'State secret', also in theTramework ofthe impending ,
review of Regulation 1049/01 t,.as well as the adoption ofcommon principles by the ED
institutions as regards the treatment of confidential infonnation, to avoid abuses and
deviations that are more and more unacceptable in modem democratic States and that
contradict human rights obligations; deems it necessary to establish specific
mechanisms to allow for access to secret infonriation by parliaments and judges, as well
as for the release of the information after a certain period oftime;

193. Notes the r~cent creation of a High-L~vel Working Group composed of representatives
ofthf; Commission, the Council and US governmental representatives of the Justice
Ministry and the Homeland Security, which c~nstitutes the political framework for EUUS dialogue on security matters, including differences in the approach to terrorism as
(1
wen as the concerns raised by the Temporary Committee; deems it necessary to
associate in this High-Level Working Group the European Parliament and the US

B5
I

·1

B5

,"

L.--

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of30 May 2001
---:-~ding public access· to European Parliament, Council and Commission documents (OJ L 145,31.5.2001, p.
43).

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UNCLASSIFIED.
Congress, as wen as to publish its agendas, minutes, documents examined and decisions
taken, in order to ensure and increase its democratic legitimacy an<~ transparency;
1~4.

.

Encourages E~pean countries when they conduct militaly operations in third countries
to:
.
ensure that any detention centre established by their militaty forces is subject to
civilian and judicial supervision and that incommunicado detention is not
pennitted;

take active steps to prevent any other authority from operating detention centres
which are Dot subject to political and judicial oversight or where incommunicado
detention is permitted;

Legal recommendations

195. Considers that the powers of Parliament's temporary inquiry committees should be
reinforced and the inter-institutional decision goveming the exercise of Parliament's
right of inquiry be amended accordingly;

B5 I

196. Considers that Parliament should be adequately involved when the Community or the
Union adopt measures affecting civil rights and liberties;
197. Calls for the establishment ofan adequate and structured system ofcooperation between
Parliament and competent bodies of the United Nations and the Council of Europe when'----------'
dealing with matters related to internal security of the European Uniori;

198. Calls for enhanced cooperation with national parliaments in order to share all

infonnation related to the fight against international terrorism;
199. Underlines the importance ofa common definition of 'terrorism'; believes that the
UnfteaNations is the most suitable organisation to define 'the concept;
SECRET SERVICES

200. Fully endorses the conclusions ofthe Secretary-Genera) of the Council of Europe, Terry
Davis, about the lack of oversight and judicial controi mechanisms in respect of security
services, as expressed in the "Follow-up to the Secretary General's reports under Article
52 ECHRII and expects his recommendations to be duly taken into consideration; cans
on Member States to provide adequate and effective parliamentary monitoring (by
establishing oversight committees with appropriate powers to access documents and
budgetary information) and legal supervision over their secret and intelligence services
and the formal and infonnal networks of which they are part;

201. Considers it necessary to enhance the Conference ofthe Oversight Committees on the
Intelligence bodies of the Member States, in which Parliament should be fully involved;

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•

ensure a better monitoring and supervision also of their activities, as well as to sanction
illegal acts or activities, notably in violation ofhuman rights;
203. ConsiderS the reinforcement ofcooperation between the secret and security services of
Member States to be highly desirable, either on a multilateral basis, preferably within an

EU framework, or on a bilateral basis, provided that a legal framework for it is created
ensuring full democratic parliamentary and judicial control and human rights are
respected and protected at all times;
204. Urges th~ Council and the Member States to establish as a matter of priority a system

for ,the democratic monitoring and control over the joint and coordinated intelligence
activities at EU level; proposes an important role for Parliament in this monitoring and
control system;
AJRTRAFFIC

205. Urges the Member States to ensure that Article 3 ofthe Chicago Convention, which

excludes state aircraft from the scope ofthe Convention, is properly implemented in
order that all military andlor police aircraft fly over or land on another State's territory
only if they have prior authorisation;
206.

207. Considers it necessary to enforce effectively, 'both at EU and national level, the Tokyo
Convention on Offences and Certain Other Acts Committed on Board Aircraft so that
the exercise ofjurisdiction is used to 'ensure the obserVance ofany obligation under a
multilateral international agreement, in particular concerning the protection ofhuman
rights. and that, when appropriate, inspections on board should be undertaken;
,,
'
20S: Calls on the Commission to adopt adequate legislative proposals on transport safety, as
provided for in Article 71 EC Treaty, taking into account the recommendations included
in this resolution;
209. Recalls the Community competence in the field of transport, and notably transport
security; asks the Commission, therefore, to take immediate action to ensure that the
recommendations made by the Secretary-General of the Council of Europe as well as by
Parliament are implemented;

£1O}Calls on the Commission to consider adopting rules on the use, monitoring and

C

management of European airspace, on the lise afEU airports and on the monitoring of
non-commercial aviation;

INTERNATIONAL CONVENTrONS,AND AGREEMENTS

211. Urges the Member States that have not yet done so to complete as soon as possible

ratification ofthe 2003 EU-US Extradition Agreement. while taking adequate steps to
avoid wrongly interpreting Article 12 of the Agreement, thereby ensuring that its scope
does not extend beyond formal extradition and does not iegitimise extraordinary
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t'

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renditions;
212. Calls on European countries to support the rapid adoption by the UN General Assembly
of the International Convention for the Protection of All Persons Against Enforced
Disappearance, adopted on 29 June 2006 by the UN Human Rights Council;
.

'

213. Believes that, in providing for the adequate interpretation and enforcement ofthe UN
Convention Against Torture, all European countries should ensure that their definition
oftprture is in accordance with Article I of the Convention and that, moreover, the
obligations relating to the prohibition oftorture are also fulfilled with respect to other
acts of cruel, inhuman, degrading treatment referred to in Article 16 ofthe Convention;
considers that all European countries should ensure that Article 3 ofthe Convention is
properly enforced, in particular in relation to the activities oftheir secret services;
214. States that, given that the protection against rejoulerfumt is higher under the ECHR than

under the Convention against Torture, European countries should ensure in any event
. the protection afforded by the EC;HR; recalls, in this context, that the principle of 11onrefoulement is also recognised by the Court ofJustice ofthe European Communities;
215. Calls on all European countries to sign and ratify the Optional Protocol to the
Convention Against Torture and establish independent national mechanisms to monitor
places of detention; emphasises the need to ensure that all such procedures used by the
·different intemational conventions on human rights are compatible;
216. Ta!ces the view that the CPT shOuld be granted access without delay or obstruction 1Q.
anY'place ofdetention within the European countries, including foreign mititary ba~s,
and provided with aU relevant infonnation concerning su~h detention, and that, to this
end, any bilateral agreements that restrict the access of the CPT should be revised;
217. Urges all European countries to comply with the provisions ofthe Rome Statute of the

International Criminal Court;

D

B5

218. Believes that the European Union should encourage all third countries to become party
to the Optional Protocol to the Convention against Torture and to the Convention on .

Enforced Disappearances;
219. Asks European countries to establish Clear rules that provide for the possibility of State
immunitY being waived where illegal actions violate human rights;

Administrative recommendations (at EU level)

220. Takes the view that all internal services within the Council (inter alia, the Policy Unit

and the Joint Situation Centre) and the Commission (the Crisis Management and
Conflict Prevention Unit in the Directorate-General for External Relations and relevant
services in the Directorate-General for Justice, Freedom and Security), should be
strengthened in the framework of the implementation'ofthe EU Security Strategy and
the counter-terrorism strategy in dose cooperation with aU Member States, and that
their cooperation with each other, as well as with Member States, be clearly regulated
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and data protection be ensured; considers that Parliament should be involved fully· in
regard by granting it oversight powers similar to those ofnational parliamentary
oversight committees, and tha~ the Court ofJustice be granted competence in this'area;
underlines that the competence ofthe ED in the field of com~atingterrorism should be
significantly strengthened;
. . .
thi~

EUrelations with third countries

~
221.

'.
rges the European Union to stress in its contacts with third countries that the
appropriate legal framework for goveming the in~mational fight against terrorism is
criminal law and international human rights law;
.

':

222. Stresses the necessity of political dialogue with the US, as well as' with other strategic
.
partners ofthe European Union, on security matterS in order to combat terrorism
effectively and by legal means;
223.

Cal~s

on the European Union to recall that the fun application ofthe 'democratic clause'
is fundamental in its relations with third countries, especially those with which it has
concluded agreements; calls on Egypt, Jordan. Syria and Morocco to provide clarity oil
their role in the extraordinary renditions programme;

.

.

224. Strongly believes that it is necessary to promote within the UN framework codes of
conduct for all security and military services based on respect for human rights,
humanitarian law and democratic political control.; similar to the 1994 Code of Conduct
on Politico-Military Aspects of Security ofthe Organisation for Security and
Cooperation in Europe;

Final conclusions

225. Stresses, in view of the powers it'was provided with and ofthe time which it had at its
disposal, and the secret nature ofthe investigated actions, that the Temporary
Committee was not put in a position fully to investigate all the cases ofabuses and
violations faUing within its remit and that its conclusions are therefore not exhaustive;
226. Recalls the principles and values on which the European Union is based, as provided in
Article 6 of the Treaty on European Union, and calls on the EU institutions to meet their
responsibilities in relation to Article 7 of the Treaty on European Union and all other
relevant provisions ofthe Treaties, and to take all appropriate measures in the light of
the conclusions of the work ofthe Temporary Committee, the facts revealed in the '
course ofthe Temporary Committee'S investigation and any other facts that may emerge
in the future; ex ects the Council to start hearings and commission an independent
investigation without delay. as .oreseen ill rtiC e ,an •were necessary, to Impose
sanctibliSon Member States in'case of a' serious and persistent breaches of Article 6,

.---

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including where a violation of human rights has'been declared by an international body
but no measure has been taken to redress ,the violation;
227. Believes that the principle of loyal cooperation enshrined in the Treaties -which requires'
Member States and the EU institutions to take measures to ensure the fulfilment oftheir
obligations under the Treaties, such as the respect ofhuman rights, or resulting from
action taken by the EU institutions, such as ascertaining the troth about alleged CIA
flights and prisons, and to facilitate the achievement of ED tasks and objectives - has
not been ,respected;
228. Recalls that in light of European Court ofHuman Rights case law, a signatory State
bears responsibility for the material breach ofthe provisions ofthe ECHR, and therefore
also of Article 6 of the Treaty on the European Union, not only if its direct
'responsibility can be established ~ond reasonable doubt, but also by failing to comply
with its positive obligation to conduct an independent and impartial investigation into .
re~nable allegations ofsuch viola~ions;

:i

229. Notes the reports by reputable media operators that extraordinary rendition, illegal
detention, and systematic torture involving many people·is continuing, and considering
the declaration by the current US Government that the use ofextraordinary rendition
and secret places ofdetention will be continued; therefore calls for an EU-US counter- .
terrorism summit to seek an end to such inhumane and illegal practices, and to inslSt
that cooperation with regard to counter-terrorism is consistem: with iltmmlltiooallwman
lights and anti-torture treaty QbJjg~ons;
.""230. Instructs its Committee on Civil Liberties, Justice and Home Affairs> where necessary in
cooperation with the Committee on Foreign Affairs, notably its Sub-Committee on
Human Rights, to fonow up politicalJy the proceedings ofthe Temporary Committee
and to monitor the developments, and in particular, in the event that no appropriate
action has been taken by the Council and/or the Commission, to determine whether
there is a clear risk ofa serious breach ofthe principles and values on which the
European Union is based, and to recommend to it any resolution, taking as a basis
Articles 6 and 7 ofthe Treaty on European Union, which may prove necessary in this
context;
231. Calls on its Secretary-General to publish, at least in compliance with Regulation
1049/2001, aU the documents received, produced and examined, as welJ as the records
of the proceedings ofthe Temporary Committee on the Internet as well as in
other
appropriate manner and calls on the Secretary-General to ensure that the developments
in fields falling within the remit ofthe Temporary Committee after its disbandment are
monitored;

any

o

'0

o
232, Instructs its President to forward this resolution to the Council, the Commission, the
government,> and parliaments of the Member States, ofthe candidate Member States
and the associated cOUlitries, and to the Council of Europe, NATO, the United Nations
and the Government and two Houses'ofCongress of the United States, and to request
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them to keep Parliament infonned of any deyelopment that may take place in the fields
falling in the remit ofthe Temporary Committee.

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85

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Parliamentary Assembly
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EMBAR~O untli 13hOO Fmn\:h tim!) on Friday 8 June 2007

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7 Jun82007

V.

Committee on L.egal Affairs and Human Rights

I.
ii.
.7.

Secret detentions and illegal transfers of detainees
involving Council of Europe member states: second report
Explanatory memorandwn'
. Rapporteur: Mr Pick Marty. Switzel1llnd. ALOE

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MlIJIlr (:llJ07)

Intro<M:tory mnllr'a - a. overvlaw
b

~

aoa

_n.__

3.
Vlhilo !he strategy in question was devised and put In plSCa by Iha currant United States
edtniniSttation 10 de8I with UlO lhreIlt of gobal tomlrism. n has ® bee. made ~ by Ille
collaboletion al various instillltionall.vels of Amori",,'s mony plrtner =1nllS. Aiwas8il? Sli6iiil
In my n;poii 01 12 June 2006 (pACe tik:1:Itiw: ii1ii6 jSIlmlll$ hiiWl'lllduded _ _ CotJnQl of
E.uope member stat... Otiy exoeptionaily have any o1lllem acl<nOW1ooged fl"'f ",sponsilllllly - eo In
lIle C8S6 01 Bosnia IlI1d Heaegovina. tor instanc:e - while the III$rtty have do"" nothing to seel< out
tho 1Mh. tndeed many govemmotll$ hlIve don. evet)ll1Ing to disguise lha ftue nature and e>ctenI of
their activities end ere po"lsIent in lIlllir UJ1l»opO/8liYe altilllde. MllRlOV8l'. only vet'j feN aumos
have rosponded taVOlJt8b1y to the proposals made by tho Sect9taIy Generel 011110 COuncll of Europe
al tile end 01 tha pl'\lCGdIIIe initiated ~dar AI1lde 52 of tho European Convention 01 Human Righla
fECHRi (se. dooument~
4.
TIl. rendition. llDduc:tion and detenlion of taIrotIsI wapects haY9 8hfays t8l«ln place outaldG
Ill. temfOf)/ 01 tile Utiited Stste>, where $1JCtI dons wOltd no doubt have been Iliad ~awftj end
unconstitutional. 0IM0usIy, those edions et9 alSO \IlllCCePf8llle I.I1dt!r tha Iews of EUllljMl8n
countries. who nonet!l8Ioss tol""'ted tham Of CIOIIudecI actively In <:llll'Ylng them out. TNa 8lqlO<l 01'
illegal activities OY9t$OOS IS all Iha mere shodiing In that ShOwS fundamental COIllllmPt let lho
CXIUtllries on W!1Ose larrilori1ls nwas dod<1Q1tIQ COlllm11 tho IIlfIMlnt sets. Th81u~ that the measleS
only apply to llO<1-Amertcan allWls '-lust as diStldJIng: 11l1ec:ts a !dod of "legal apartheid" end 1111
~gotllted sansa 01 sUfl'lrtoti~Onco llglI/n. the blame lI66i iiQl he iOteIY With ffi& AI1tllhCilriS Dill
• 8DOve all, wlUl.bwopean p cal llladlll1l wtlo have knowingly ocqulosced In ttlis state Of atran.

n

n

Some EllICpOlIn'gQ\'Qlllmon!s hIlw oI><tlucted tho s8lll'Ch rar the tMh end "'" continulnO to
do so by invoking the concept oI"~". 5ecnlcy \$lI\YClked so as not to prnvldo e:><pl8naliona
10 parfomantaty bodies or to prevent juddal 8IlV1OritillS from estabtisIlIng the f8Gts and prnseartln9
lhOse guiltv of offences. TIlls ClitiCi!m sppllllS to Garmany llIld ItalY, In pmtlClder. It Is striking to note
lhaI state secl8tS 8f& invcl«ld On grounds almost IderrticaJ to th:lse advln:ad by the euthorilia$ In the
Russian Federallon ill its CIllckdown on scientists. journalists end 18YIy8/'ll, many of wllom have been
prosewted and sentenced for aIl0g0d ec;lS of "'l'iOnag•.. The samo epprollch ted the autI1<lI1llos 01
"tho former Yugoslav Republic of MIICOCIOIIiIl" to tide the t1UfI1l111d give an obviOt.lSly false eoc:ct.llt of
!he actions of ilS o.m national agmet and tho CIA in oMying out the _
detention and ran<ition
Oll<llaledB-M1lstl
5.

6.
InvoJdng state S8Q"Qts in such a way f/Illl !hay Il/Iply oven years·ll!lot the event is
U'li'<:""I'Ull>I. In a clemoa'lllic stale lla$8d on !he lID Of law, It IS rranl<Iy aI tho more sIlocki'Q WllOll
tho very body invoklng SUCll Se<:nlt5 attempl$ to dGllne their COl106pt and 1lCDI"'. as 8 melItIS of
shiri:lng rospQnSibmty. The invoeation Of state 88Q'8ts llhould not be ponnitlQlt when a is ~sed to
coo<:<I8I human rights YloIlltlonS and n should, in any c:asa. be Qllljta to rigO<ouS 0Y8f!igI1t Here
again. canada seems to <lamonsnlethe Iigl1l llllQlllQ$t\. as win be seen Itllarin lhI8 rapor1.

li'Oril2l103W'

_""wall

and

"""llft

.

S.
The leaetdetentlOll!Bdllllel1n ~-..ancfirllst!Y8ndlll5dUJ!'tl!!t bxlbo PIA. roo..kooNfedge, the 10CtIi Itall' heel no ~ lXll1lllcl
tho priJontn GIlIll*fctmed purely loglatil:al
duties such ul4lCU!ng II1e outer~. The _
...-... __ not eupposod to be - . of
lila exaa turbet' Of fI1tI lden!ltllls of !he ~ who pNMd tllrouQh lila flIdf_ - thla _
tnfoIlnlllion 1hIy dd not "need t<> _
.. V\tlII. k .. Pkely that very fwt I*>P(O In lllo COUI'Ilrlu I
ooncemad. fncjuding In UlO ~ ~ kneW of lI\e exI&1~ot!he Cilt'I1te8. ... Mw
aulficlonl gtllUlldS lD cI_ fI1at tho tigllosl tIa1& lIUthorili... were _
cftlle ClA'.I"egoI ~
CllltllBiltelritaies.

Wit

B5

tiJ
ClAdtl8ldst

~

2.
Some Individuals w.... kept Iri seaet detention ce_ fOr periods Of saveral )'lWS. where
Illey ware subjecled to degrading lraalmant and so-caied 'emaneed i'<I8lrcgallon te<:l1nlquaa"
(e>serrti8ll;' a eupllenism for a kind Of torture). In lha narno of gallletfng
unsO<l1d. wtliel1 the United Sllltll$ dll/mS has prnteaoo Dtr common
Elsewhere, otheB haw
befln llllnstemld thoussnds of mles into prisons whose lacaUcns they rnsy MY$( _ . ~
~ ~and P~o!oglC8lly 'l!usIld betore~lIll_rrz'.fttl'ffl. W""'~
""'I the ~
r lIul aJlfenng lI1ey wBrif
• ihaywero Baaed Wiltlout 8 _
Spology or any ~n$8lion - with 0fl6 mmetlalble exception ONfng lo lha 8t11iall and feq>onsible
approach of Ihe Canadien eulhotiliils - ll/llI also have to put up witl\ tllB opprolJllum of _
sum>Ul\:ling lhGir jnnoc:enc:e end. right here in Europe. tacist haIlI$SIT1anl fue([ed by <:Et1llin media
""Uets. Th.... ere 1h!t terrible consequences Ol whal in lSOITle q _ 0$ called the 'Waf on Iem:>r:

_ty.

"

iii dII\IltltlIm
i@llS/iIlr!ll!'gllQlmJ d R"'Dl!I:!!!!o Thes8twv
_
_
by HIm&n R~ watch!ll NavemberZJOe. AltIllJ IJqXIdt
oIl1\e AmerIaIn ~ lhe ~n Post $lntp/y mmd generlcally to "lI8$tam
European d8mclI:nlcl.... ~ 11_ 0Win oftlllJ CQUI1tlIOIec:lU8lly aJlUl11Itl.ltlhClUd be I'QllId
that ABC <id <lIso t\II1lIO PQand and R~ In an lt8m on Itt WIbttte, buI their IllIlTIa wero t1IIll<Mltl
very qulc:l<ly In ~ wtlidI WllI'8 lIlqllalntd In <Nt ........ r<lPOlI. ..... have Il1O hall cI6Ir
clolailed cctd\rmall0ll from CU' 0IMl _ , In bolII tho Americ8n lntlIIUganc;e tIIMeOI and tIllJ
CXIUIllJIu COl'lOOOIed. lI\el tile two _ " . ~ host _
cMt8nton CliII1lra UI'ldlIr • apecIaI CIA
P'CllJ8II'Ill8 ollllbllshed by \he AmlllIcaI\ 8<*nlrimlllon In lI\e IIIlarmefIl of 11 SaptenW 2001 to ,.••
8I\d dolaIn" femlltsl S\lSPIlda doomed fo be Of ~ veIu8". 0... ~ ~ lW'e _ _
~!'8led Irt Gipb! do1ll orm~. cllllN to l l e . . - - and whId1 we liM
- . able to V8tlfy USing VlIl10us
~.
.
~

VI'l\a1 was prnvlously just a set 01 aIlega1l<Jns js fl<7i(~e rtumllers of P9O\lle hlIva
varlcuslocations across tho wOOd
10 ccunlIlos where lhay haw
ea.rte
wnere it is known that torture Is common praeuea. Ot/w$ Iia\IO been heIclln
artli
lion. without any ptllCiSe chafves levelled against them ll/llI wilhout any Judicial
OYe""gtlt - denloo the posslbmtv of defefQng thernse!vIls. sm OlhOrs hlMl simply disappeared fCC'
1ndor",lta penods and have been t1eld in seaet prisons. including In _
slalM of lila Council of
EtJropa. Ihe exlstenee end opetlltions of WI1icll hIlw been ccncealed ever sinal.
1.

so

we 8t8 not lWllllV8lltllj8ling tUI1oIUy: we have _1I1e powm _the _ , It .. not
tl1Ilnlfol'e ..... elm to paBlI ]udgmetlta. atJllau to hand ~ Ien\lln08I. 1iowlMr, lllI' task It d8lW: lD

9.

B5

8SS88Lasl'at"'~m:&;=~:mmm:>i1=1iie.Jal
bellevllwe hMlahoWn fI1at the CIA _ . Whole..
. .~ deta,~ 1IlIIm In _

1nt8rrogsfI0Il'
i

In ~ 2"", lI!e _

110.

te tortI.IU

Io:8llona end

NlJIICllnlI

_
In
IIlem to

Illok place wil/1 tho I1ICIIlIslte pgrmIMI~ ~~ ~

1\dIVelo"~lt!lll
S$1s1anC4 ~~ I:tr8S.Jt:aSVt
~ iii IUdU;;;;;;;o;,;;;;
SiIllIllll
011
•_
of wtlIl:h
pulll/c'and
in

c:I1lW1l8ln _ _ A ~ III S8VIl"lII CCl'lClning IOURllla, Ih8se lIUlholIa8IlonI . . . . as
pIatfonn fcrllilolenll~, wl*h-ol_-elsoremain_

some

11.
In our vtllW. lI!e COl.W1lri"" fRll"Cllled fnflloa& proglllIIVnOlI Mw f1lIkld In lhGlr ~ to lIIIIIblIh
thEt tIUU1: lI!e t\'ItlIlnC:e olll!e exisllln:B 01 w:i811ons otlund8meltl!ll htmMllighU Is OO/'ICr8le,llIIleble
'end COlTCbOrlIUve. AI lilt VfrI f-'. it fa such as III ~ the IlUlholIliea CXlilCIli'llild .. last 10 OIlIer
lOt Indep6l1llolnt and thorough I/lqlOtles III1d .top obttrudlng lila fIII'llm .nler Wl1Ij In jucIcIal ard
. 'llIl'lClnl8IY bO<let to eaf8bIlsh the tMh. tnlemaUonlll cxverllllllcns, In peltfl:uI... thEt CculdI lit
EL1Cp8. lht Etrepe8I1 UMln and NATO. must lliYtI tollOUS CCIllIIdiInlllan to W8ylI or evoIdirCl t11ri1ar
ulnl\rttlt'e end ~ ccmpllMee wltIl tI1efOm1al end binding Ilomlllllrllillll&wtlIc:I1l1eltl1 have
Into In llllI'llS.orlha~ oflurlan tIgl1lI andlUnall dV1tY.
12.

WlI1OUlJ~ !X>N!!!1 pc ~ necom'Y llll<l!!!plI. 011" lrj.....Usllllfgll! W8!'! bMtil!!l!'llY
astuta ...., Of ~ . . for lnatance. lht enalytls 01 lhousIII1dI 0I1nllml1lJ_1Itltlt
iliilS - ana • netCOf~estllIIIlthed In _1lOIlllIrl.... Wlh WIlY modtIl fI'llIllIlI. we
to de I8llI "iIl\III1gance"
_able to lItlBb1Ish _
wtlIl pecple who IwIdWOl1<llcl or

W<ri.ed let lhlt IIlIeYllnt aulhorlUu, In patla.farlnlelllgeftClO llgIl1d8a. ':No h...... _
~ CIUI'
uolom OIllingio slalemenls llI'Ill'ft Mw
\IIlId lnI'otme1IaI1 !hilt 10
~ . 'IIflOli pouibIo WII ' - Ci\lIRiiilCIlid CAl' tnrllrillIlIlon boUlln Ih8 ~
... iXncemed and on lht olhtr tlsle or Ih8 AlllIntIC or lhnlugh ollIlldIlI8 '*""'tnIInla or d8UI.
" CAl' ~ IOUC8!_Griy wII.Ilng to talk to ... on tIlearodltlon 0I11b1alute~. AI
Itett 01 0l.I' imIeIllgll1lOl'i#. Ult ~ on I.eGel AIl'an lllltltflmtn RlljIllI Illlliiiiiiliii to
_
..... conlacla alt1c:t ccnl\denllaIity wllenI 11OCQU8lY. ThI. wMIl~ to Pll OOll!lclentWiIy
potential ~" '"5 eso COIIlII'lllrlca to Mr FI'1lnCO FlBttinl. V~ I1f tile
.LI'CIj)8lIl1 Commlsslon -Mill responslblity fer the _
01 ~. elllUlty and ]UIUc:e. 10 lhal ha
d ~ trJliJr lht fOlll'\llltll minletenI In EU ClUI1lI8$. ~ or IlllI'dldollthlllly tnlCUbteCIy
~buted to a dImela oIlNst III1d ~ It poeslble for lltlll1Y IOlR8S to 8lil'8O lD talk CO UL Tha
'duals ClOIlOlllI'1ed ... not PNiPllf8d at proMnlto leIlIfy In PIo*lU<:. bul.ome
J1"Y be In lhe

om

u.

j(1l1t~_lQc:IIengo.

UNCLASSIFIED

"'!ham

I

L0327

UNCLASSIFIED

fo$,IJUI(:lOll1}M'

13.
Th& Polish outJ1O(iti.. racontly ailidsed u. tor not 1nIv<lIllng to lhair CllUIllI'\' to vbil lllB tadlily
suspected of IriMng houo<>d e detention centre. HQw<Mlt, we s"" no point ill "'Bitlng 1he site: '..e are
not fOltlll$i¢ sd<lnoo $XpQ<lS and W$ II8ve no dCJUl)l8 elxIUl the capabIlily of those who wculd have
"'m<Mld 8IIi' traces of tile priSOnetll'll"USeJlCa Mornaver, a maellng llIl1le site would only have bean
wOl1hwl1ile jf lhe Polish lWII1arttiO$ Nld lim ~ 10 !he ~ W8 jlIJt 1n IIlem tlI\ _
=asie>nS and to ...nIch wQ
sllllllW1liting repIi...

mustnol"""", iI9 An\lllQlSllfprmlemB1!cl!lC¢!!!S!ll<>PiIl<llll aola lll!!1ll!jvQy!9latlon
ililiaI\ nlirts end con\!;!mpt (pr l!lll aill gf IIIW. 1 had tIl1a '/law not only ~e
iil6Jre conlliCl Wlth ilie ~ O!dtlt t;4 ll!I dWlsed CQunttiss and 8f& elhlcally
um<:Cllptable. but lIl$¢ beCaUSe they are not effective tTom tile ~ of a getl\ine ItlngoIetm
.

mponselo tOOllfl$l11.

B5

we have aald U I>etonl end otlWra have _ I I much IllODl tcn:rmJ!jy, but we must repeat "

1le1e: llaVing te<;OUtSelo s.buSe 8C1d iiagslllel$ odually arn~ to a t8SOllIldIlllI fa!lllre of wr'system
and playe right into \he hands Of the ain1il1e!e who _
to destroy WI' socilltios l!lro<IQh terror.
MortlQ'M. In !he prooe$$. wa glw thoae aill'l1nals a degree Of legitimecy-lllllt Ofllghtilg anlJl\folr
"l'slem- 8m1 also gonerata ayrnpalhy furlhalr_ whicllcannol blIt _
as an 0IlC(ltJlllgemenl.1D
them end their supportQtS.
16.
The tact Is lhal th8t8 is no I88Ilntemationsl SlmllIgy against ~m. and ~1llllllI1S to
have beOfl "!!lie3IIY Jl8SsIw In 1I'is !!!lW!l. The retusal to estsbliall and lllCOgIlise e fLn:IIonlng
in1llmelional jUdlclaFiiliCf !I"loa<:ullOl\ Tyilom i$ el$O a ........ ~ 11\ OIl' ~ \0 _
InUlma1iol1al!efTQljsrn. WIJ alSO"ll_ \"iln the vIow ~ by Amnesly Intemeti_ln~ _
amual I'Ilpolt: g<lVM\l11ents are 1llI<Ing eclvantllge of !he leaf generated bY tho tern>riat 1I'real 10
~e alt>iU'8IY mllit!jo1'l$ t<l~fnlecloms. Jo1lhe a;lIIl8 timo.llley 1lRl JlllYing no 8ll1ll1ticm
10 development; in 01her SAlas tha1 daim many rDOlIt liYea, or they display a discIoncertl111 dag;ee Of
pessMly. Wen_only =t OIrminllslOlnman tmfidling orl/lll ennstmde: '-Is Itpos;ibla. for
example. that aeroplarle9 flS of weepons continue to lend ~Slly in O8lfur, Whole a tunen tragecly
with ten. of lnOUSands at vldlms is unfoltling7

In ""r .,jew. it Is also llflC8Ssa<y to draw atlenllon 10 en asptlCt we beli<Ml to be --t
dallget'OlJS: lhB l"llilimate fight against ltmlrism must nol881W as a pnllexI for provolcjng IllCisI and
IslamophOl:ic reac:IillOs 91t1OIlO tho public. The C<>~I of Elrope luis tig!111y recognisecl tile IL....
fundamet!lal imponanca d in~lturaI an<I Inl1l!falfh 4laIo9Ue. The membll< 5lalll8 and ob8M'llIS
"'lllly shOUld cany these eflotts (0!Wlltd 8C1d maintain tile WOOS! of vlgllB""" On the issue. Arrt
excesses In \hl$ respecl 0Q\id he... <isestrous COlU8qU1lOOllS In t8tlTl$ Of an ""l"'l'dOd Mur8 tancrist
uveal
17.

1S.
In !h. CC<Jt$8 of our ilMI$1illBtlOll$ eml through YllIl_ .pecitic clrc<mstences, we IlIMI
become ~ of ce<tain .pedal mecIlanisrns. ~ of ll1em c>vert. employecl by Intellill"nc& .ecyj~
~ counter.tmmds! adMfjQs. It II riOt tor usjUd{Ji tnGi8 metr1OO4, mD'iSUgn U'l ctlls ate.a. ~
rllle"""- __ II) Do 181<~ will> lawfulness. Many a( 1he8ellllllhocls give lise to dl8lrIlll9d1on1
of b1eoonail ami II.. belWeBl1 dilferwrt "l)BIlCIes ancI l/l$I/tUlionlI in 1nd';i(lueJ ateles. os well es
belWe<$n steles. Therein may fill et 18851 a partial explanation for ~ ~ fieral
cppositiOil to revealing Ul8 (Nih. we camOl go IrllO l1le Ilel8Ils Of 1Ill8 phenomllnOn w1thOul pulling
_
~Vll$1Il ri.l<.letmv ",,\~elhalWlllll'llMy-.lncad<lf1lles\rllleg1olmpottanoed1heWCfIC
cA Intelligenee services ill c:omll8ting ~sm. _ . we bef_ ~ .tro~ Ihst 1l'l8I1l1e\llll1l
agondo$ nOO<l to be sullject to COdes of conducI. eccompanlecl by ~ ancIlhorOlogh SUJllII"IiSlon.

19.
VI\1h the mandate B$$lgnecl to \la. we belillll. that the A&wlIl1!Y hes Dlaclled the liM of Its
posolbilities. The N3SllUn:llS at 01.1' dispoaal to addrwa l/lll ISSUB$ ~ to U8 am illilllIy
~e for the 1as!<. Tha Co<mcil of Europe should glw serioua considel81iOn to equlpping IlwU
with more effacllw and mOle binQng I/l$~ lor dearmg wlth auch gIlNa in8taneas CI mauiv8
attd systematic vrolalions i5I h<marl nghtS:i8 more IT8C8SS8tY no,v 1l1lln ...... befoIa, """'" ~ Is
dear tnat we are facing e WOO'ying process of tha eroslon Of IinlarnenfllI ~ ancIllg/ltS.

we

21.
In Il"USllll1Ing tIU l8pOl1. 1110 R8A>c>r1Dur .....- !'is ~ 10 1he _
." llllI
Comm!1lee'8 ~lll for Cleft ~ ccmrIlmont lll'od ~on. 1Ie<'j 8plIc:IaI tIIanM 8M
~ va lD lIle yc~ lIleII memberwhowa 8p9I;/ficalIy aaigned.lo tNalnV8ltlgatlon; he .
hils displayed absolulsIr lmlI%lng 8018lyliall ~ and_city.

-

*"

'h"

14.
8tIl fully ;mare Of !he aeriO\l$l1ll$$ (If lIle IelroIi$t 1hrosl and the d!lnger it PO!I/J8 to Ol#'
sooe\ie$. Howe_. we believe that !lie end «>es not lustilY lhe means in tIIiS _ either. T!lILfghl

15.

6

MlJur (:lOOl) 3&

20.
muDI c:ondamn tho lltlilude C/ the mall)' couotrllls that did n¢I deem It nealS>llly to lllpl)'
to tho Q1Jestioll11lllre we eanl !hem tmlUgh lIlair national daJOgalIona. SitrileIty. no.TO hils _
repljed to our coITB$pOl1den<:e.

L

The "dYnamICS otUUlll"

~

How PtaftMIIt.8llstl'. l#fdosU1W
CM1nitntllllJtlen..A#«rCY(C/AJ - . t
l1afJIntJon~ha~tIHI·~Ofovrtr·

01,.

'Mlen PrlIsld<ll1l iMh dec*te!l on 6 SupIllmller 2006 to t<IWIIIf 1he llld$llnle oI1he ClMIIt
ptOg/llfmI8 lmp/!lI1lIlII\Od by the CIA to ~ de1llil1lll'od It1tllm:llleI8 ......- Ij~ tImffIt
auspec!5 " he ~ gIoulICl t:Ner thD moat clellc:a!ll 8IlplldI, I\ldl II the ~on ~
dlDslWl and (noll oIltIiIing lIle prior ~ trom the Uritlld SlBlet Ccx1QIIIrot tor !'is AdIlllni8Qtion',
"War agairm 1elloMm".

22.

23.
PnlskIent Bli1/l", cbdOll68 was ~ Wll('ded so lIS II) proyide YQ(y lilllo racluaI fnIlghl .
tI'8t was 0"fVJ1'Itly _ or ur-.. It 'Ilea lnslIad <:tAJC:tled In ImpenIIlva tmna that pcxtnlyed the
President as B 81l<lng Conmllttdtlroln-Cl'ief lryIng to pc-.t. . . . 10 lhe \.IriIlld stol&s by 1I1lIlhOCltl.
suches tIleCWIIJltal1'OOlllon ~
'\'I:lugI'I .-e, 1nd~.Ind.-.v. .

.wN<:I\_

The end ..... pIlflrsy.... as pe:lI/llOI.rlt - ""~ I/I1ItIIIQ lIIW Infotrr:IIJIon -....y 10 do our
job$. BlId 1Ilar, to pttI/lld thfI Amedcan ~ IJIId our ~ lhe~ of QlllIlng u,u..
.....

24.

~ -'I_dOlSCribelhe~
meIbodII ~-Ilhin/(ycu

_later.

-----TU","'"

und/If$tMdwtrt'.

a.m

25.
Just under.
lhe US Congress responded 10 PmidlIrlt 6Uab'.
r:tIIi
jl8SlJIng the ~ COrmQIlona Al;l2006lrl1lllaw. All. Pmoident BuIIh hod ~ ~.
legIsteIiOn dr&!n distIn:liOnS bolW8llr1 UrIIl8d StalBs dll%lltlS IIld fIlll'H:l1iz8rl,

hQ'loured llln Of ~ 10 cIl8!ll!!1llB Cll!t...ll!ls!I_fllr Iholt

........~lrom~
!lBlIlIOos.
jlrilC:en lli8l~ 1&no
CIlptlnd lImlrlat iIUSIl8CU was 1Il1lllJby ~.
____ Wl1Ilatthe ~ 1Il8d 10 _the tnlCl<e thBthB<lled them1l1elll.

aut.

26.
The 'Imited dlacIOlIi,AI' d. 6 SeptenCler 2006, all'ortled • flesh foalS to lhe mandIJ!B of my
One tI*l9 waf nt:NI c;eRaIn, J)«'8CII1llIIy ad\llCMledged by ll1e I'l9sIdenl oIllll1 ~ S1lll8s:
lIle IlldslenOS of saaul delenlioIl ~. wtich IIl8d 8RlSdy ~ In lIlY Jme 2006 nopcrt. we
_, llclw_, 1-' wl#l \I'I1I$CIMld atlegal!Qna tIla1 Quldj Of e..cpe rntlIJlber Sl!lllIs hl!MI all!ud8d
wit> lhe UnIted Stellle In Ml!oolI ~ ~1lI vIoleticln8 IUd! 8$ entonled ~,
inC:orl'lnvlIaI (-=tel) cletufIIlona, and lDI1ule «auel, lnIunan lind ~ Il-.ent. l'l'uIdllr1
Builis allSOIlfQn thal E~ coo Il8d IlInftllld trom the /XllIlIlIlIIJlI' • Wl1IcIl hils nol been
llullslBnllalecl bY lltIY e'Ildence - rn&.lSt be put i'to Its llI'OI* PII1/l8CIMl Jf It Wll/8 $/wn lIllIt !lIB Il8d
rllINken_d~ valU,u(ld1blt1\!fO ol1llw In anlertolhn In thoN.bBnf.lIltl.

Inq\il}'.

'ZT.

111 my '""" ll1e pnl«lCIIcln d _ _ hI.men """" 1& eve;y Ii! III lmportonI 88 1he

~

1lI nl\icnli IlJQJ'dy cIt1ld 1:1)' Pt$Iklenl BiJII1; 1ncIaId I hold tIleM lwo ~ 10 be
compiemerltlly. mUlUsllY t1IlnfordnIl and ill no WB'f 0CII'IInldict0l.

'_..Tho_-----.--Nl--_.-__
10_-_.. . __· .
_".IIINf/fIIe...__
, 1110 _

itouJ.. 0lIc0 «1M _

e__ "''''liUl_d'''_-'OiU18.2llOO;

aoa-y. "'-"'" ., 1M Plo_ ell tho _II _

at T.....

~

-.y,_""~

'''''''·-''bl-_ _ oo.oo. - .

=.-:=J""*:.:...o::..-=::-==::."'"::~=-~::e::";!!:.:~.::::
--AtEumpo--or
_ _ I_v-ywIJ.·
'1llId.·_ _ IiIo _ _ "'". . . . . .
_
•• ""/104_ _

UNCLASSIFIED
L0328

UNCLASSIFIED

7

28.
If WE> "'" to ~d doar1y tit\> relllUon$Np botwoon llum8rlligflts and nallonal SlIOJIt1y
imperaWo> for lll8 fu\l.lr&. then wo cannot content ~... with pet1iId lNlh8 alXJut haw the po!icies
in question ha~e boon dlMlIQped and implemented In lhe paol R Is 1heRlfOIe our duty 10 lie! rillht 10

33.
'Mlllotcno mI$#ll tnlllnt1lnd ti, dOl;blQn" I' -_ _ lOe<IClpI a <llfI'IlIetll pooIdon lI'l:1m liml
of TII6 ~ f'Io$J. en lID luua, wliIsllll8lnlllirlng e RlcI policy ()( c>ar1lldenIIali wlIII regan2to
rI'tf IndMdualllOlmll. UtllolJId lIIIo be borne In mind lhol tho WIY ...-neal AmeIlCll'l NGO HImM
~gIQ WeldIIlad
died Poland and Rcmarilo IKTlOIlQ G>e lXlUI1llIes In wh!cIl tll<n hed been
I8allt dItenllon 00lllIe$. MorecMlr. 111$ clifftl>.l!\ to eo:copt lhat lila I'II8>OIlS ~ llI1IIo_ by lila

_ciUy

!he ballom cf lite ClA's S<lO'eI dotenlloll ptCglllmII'Mlln all I!.> ~errio ~ Tho programme
ITl<lSt not ~rnply pass inlO i'<sloty as a poIic:y thaI .....med 10 tli'eacI1 our liUp~ iIMaIable hum...
rignts.llul about wNchwe nBVQr leame<llheWlh llnd f<lrwtlil;hwo_~lWCbe<l9Ofilic;ai II1d legal
aCCCl.l1lability. we haW! a risM and 11>& <My to !glow lhe 1JJI!h !J'l'l ~!!n!l!yse ~1he ~ Qlld
ma\hods baing
In our lowsn:ls tho
enIIan<:ing our ~

8t!:!:ti~e:~~*were
tfI.:o'::

~PostlllllIlllVlllilltlldey.

wea
=::;':=;;",<;"~;,a=:tll

involved.

11,

QuestiOrl$ $VC/l as where the cletentlon

B5
I

me. IUMI - . [""'lied IlIld wheI oonditions llle

35.

of eMfIdMtiaI

BS

I I

.

From ltie _ o f my l\lllIldIl1& ... R ~ on\hlllluuo, 1 ' - erguecI1hal tl'Itl8paJarIq
_ tlCCClUIlUIbi!l wCiUd lrl flEt prow to be heIl!IIy fOr' lIlHha lIllllIlboIr S_ Of tho COc.ncII 01
2'\1'01I8. not IeeIl tor ll10 ccunllleI wIllcIl haw hooted CIA'tIad< lilteI".

3T.
The potp8lJJIII c:ycIe of e11egal10M ...., ~ _
titlC& NcMIn'lbar 2C0511aa
II18IlIIy IlIMIlI to fuol Il1UIlJlll llUlIpldorJ _ di&lrUSt l>etNe.t QI.I' ~ end peoplet. The
U'lCettIliray hal ~ open poIftk:8l debllllt and JlI'OYi<led en InNfIla:mG dslnldIon fnlm tho Il10It
wgent task of de\oeIoplng more ~ clernocnI1lc ~_10 - . l I l a ~ lIlmlritI threat In

"-..as

sites". allhough
ow.... of lhl$ /(lf01l11lllilln. TM Posts de<:ioion /tIlk)Ned II meeting alllle Wile
House and an explfclt appeal !lOrn the US Govemmont 10 retain !lOrn IllIm!ng the IXlIJtIltiet lmIoIVecl.'
TIle Posf$ Stelf Wlt.r ~ " ~who wmtll the 8I1id. In queoUon, expIein&d tho IlItionala behind
Ill. nllW3paper'5 de<:/$Ion n the f
1llmJ$:

.mo

~Wlltllhllruledlllw,

namesorSIE;

sa~ and
OXJperat!on qlJOstIons. I'.-Il dfd.QOl publiSh thtJ
Ii roB! Wiiii! nof <:017111:1_ soma~i{=
of whl
'anowlrichwe
r~u e.
'ng
ltlose I1l1tN1s 10 /iii Viliil16 OUf IntemliilOii8J ptOQfIUnrtJes, we thouphl UlB! tilOSii Oi1oIfs might

1UBTo/' tums<f ""

~

In <inl<t I8SpQRSCt, G>e plnlClVn ()( tHa report Is one baMd on plIndples llllll Y81UllS. WI

~""1l\lW,

32.
In<leed, .1/lllI WhBn lila rovel4tions 01 _
deten!ionS Ii> ••••n demo<:tacies In Ealllem
Europe" tim ernetge<l in Noll1llTlllef 2005,' 1Ile ptAllication responsible tor bntaJcing lila .lory. Tho

_ i o n ; it

CIII II>e

;l6.

Wa$bing!on PosI. madaa ~ rollO publisllllle nam&s of tile stales wHch had hostecl CIA 'bIad<

not ..

/II'OVIIN .. l1lIUI1UI _

aaert1llat ItIlXder to retain1ho _
auII10llty IltClIUII)' to .areal G>e gllltMIl temlI!It 1Inal, WlIlIlUIl
ensure lhol _ry delelnee In 0\1' C<ISIOdy - .-lthtlllndlng the _ ()( wHl:tI 110 Is """"""d. a'
I - - 110 " hold In ElRpe ~ eIMw!IMI - II ac:c:oRIlld tile _
fIIndomenlal tunan rIg/IlI ...
Idexpect Il> ba -.Iod ~ llllllwtllch. _ . we upholc!fOr' ....... tIl8_~
even W8/' IIlJlIlorlIM CIlnduct 01 trry fOIl; fOr' alCIIlllJlle, ll10 a.- ~ ltIe _ _
til [rl\I8I'II8llona! Iunlr1Ilal1an 11M leylng down ... IInitt to tho> barIletlly of __• aI» ~ _

detaineeS I1lMI been l«lpt In _
decIaIed faSt yest by Presldsnl Bush to be too semiivll for hlm 1ll
enswer ofIIdally. OIllhe gJTlllnCls lhal·tSoin{J oW wouret prol/idI) ()lJf IM8mIGs wilIl itfonnBlion lIItry could
use ttl tak9 reltlbutlotf.·

"FoIiIic2f{ embanassmBtli was

IU

EIpeclally In Sghl ()( lis ~ pocIgtM fOr' pllleCti~ and promoting tunan Ilghls on
_ ccnllnerlt, tho Could! ()( e\l'Oll8lloid1allll"", raepomilllllty In prcMdng all'ull\U """'=U1I. Unas
boon S81cl tllaIlIla patlldgm ()( US de!eI~ In Iho _
ofltlo"Wet on lemlrtsn" hal been
~a .. @II WlbW Pal! !!X#lfl:-tn=udlng In EIof'ClPO-bec:8Ilee 1I1<naM1 thai lJlJClI
d tlQl be ~ at llome under Iho iaIn _ ConIlltulIon oll!lll UnIted St!1llIo. 1l1ls ~ a
plltaliglll orpoiltiClll expocIeney. But~ nollll_ln 1I atonn ClfcontelTlpttOWllRlll <IIher ClCllll'ltrlN,
notebIy CUba (GIIll1t\l111lKnOl} 8I1d Euope: whIIl it not good ~ fOr' the ~SlalBlllatcraa-l

30.

31.

TIle lIBJICIIIIbUitY
..........

34.

29.
BuI1lffll\l upon the J u m t ~• '
I I1lMInow c:oncen1rIIte<t on ~ lila CIA
programmE> prop&lfy within Ih
ollal spidlll's
llle 1mBge I tmId to desoriba 1he syslolm of
seeM detenliOnS and _ _
e.
tho wOOd by tile US Guvemmenland its
lIlIies. In this <:onleJrt. our Inle",st has be,," <:ollOllI'lb'8t on tho role played by Ihe member St_ 01
lhe CClUllc:il of ElJltlpe 1hal acted ll$ "hom" tor CIA 8~Cl'lIl dolerilfons.
As this ",port wiD m8ke d""'. lhe HVD prog!MYl\O has depended OB -..oRlInat)'
authorisations - unprecedenl&d in nature and =pe - 8\ both national and intIImationeJ 1_. The
.eael of its ~ry existence was suec:ess!ully g_d tor 8lI~llllll y&ar$. Illld unIil todey. I/efY Utile
dslail h8$ be.n PIbIi$hed 8llout Ih& terms used 10 IlII8r to it, tho way the ~em ha3 optlllIled, Ihs
und.rlying authoriS8lions and ~ lhel M"" ~ II. or ""'" tho '-000 as 10 why It
has so su~Y been COYel'GdtJP·

II

A$lJUI: (2007] 311

AS/Jut (2007)38

ThUlt lIlY dedalon to 11II1l81he.....- ...-ned shoLId not ba """"tnled 81 an ~ to
~ ~ ~ «to drtve a WIlClga ~een ~ ollho Eucpea\lmnIIy. On tIle~.
my l<MIStigations d~ cIiIBlty 1IlIII noapansibIlIy Is btoa;Iy lItllnd on llOllllkloa or _ A,tJantic
and 00 011' conIinent.
.

3a

tire

$Icp if Ihe coun/Jies' nam6$ wem pubIIsMiJ. end that /his would not be good."

1

=':~:'':~~-';m;;:'-i¥~CiA~~~

.~:::.:,sa:=8~~~

I- - - - - - - - - - - - s1lontlllld keptlh' o ~ lIlo·prac:ll_. hIlr~ md.lhlllrpartldpallOn MlJlIl.

, ,.•• Oil;:lt ML1Y. Conmt:tH 01'1 up! JJt.1<f 1M HumaIJ fUgftttt.. Councl t1f&mlp. ~&aly AUltMtifY. tJ.l~ ~c
dmntlon:a: and unllM\\l iml1'~' tnIn*rl ot~n ~ Ca'E MIlQ'bH~. Doc. tOQ51. 12.0e.20CCJ. WI1lI.blIIlIt
M1P:tlmtmb'Y got IntlMp.MD?'iflp"PsxamentyWql1dntj~0iS7Mmp!'I'Ml&lter "U'"Y Repott 20;18.
CoulQIoIEUfOPtOoc:r.10f1.511.
.

ume

.

40.
Now Ills
lOt 1he member SlalQ ollila Cllull:il d Eurcpe to I11lIIter a IIIWlar caIlacllYlI
Ip!rit In ac:lmwleclging I!llIlluth _lhe past lllllll8gllllJplng lo faCe tile all1SldenlIlle (IlaIlenges to
be faced Intlle fulurll. The met/lQds usllll not orq pRNIllIla be 01 questlclnable U!<IIulneA. but abOve
lllI lhey also gave 8 I8lldellee of legllImlIc:y III tem:rist _
and """" glMll\le fXI !llITICI
feelng of &yn1l8lhy t... lhem.

1 RI1MrtI::s by PTlisllJantSush, 08.~, ~ IWIQ 3-

tS... OIll.PriM~·ClAJ40~:Jrt1t«G~~s.mt~-DtoIttll~~.AQ'r#!fAa\lUOut1vAMot*Ily
(I1<>...;wuSyst.mutupaft.g,rl1·.l'h.~Axf.Q2.",2C05.
, 8M Huw;ml KW1Z., "SUIll PrIIut$ EtSmn: on 8ec1Jtf. 111. ~ I\l.It. ·23.12..2):)$......~.. Wi
!tAA1hWMW3M~~iXlrltsnVp?1kW2O!)SN24SI"B2bpS1rry'!'R§
ptbiynl 1=01 I\ItfW comrnt1'ltlfY....
MGMarI)'ft1IpM:lOOlJ.Md:bn '.3,. etp. i.
.
tOat\lJPriat.spNkfng:.tht.~r.ml'3fl~SecnqInd~~f",'~FUN~·.Mlttdbylf\t:Ct.r*rMl

I..-.r &nd S-'Y, N\'l,J 11"'"'" oILawo, _V""' 12.1>4.2007.

UNCLASSIFIED

I

I

L0329

UNCLASSIFIED

ASlJw(2(107) 30

9

tel"""

41.
~ Council <>I Europe Rappo.1llur I h8w
~ llllQr.A my _
In tho '<lynamICf
oflrutll"-tllllleacll drop of Irultl willialld fOlwanl108lIOlholrdrop cttMh, end lIlala st88dy_ewlU
tJlUmetlliy oo1l8lop Into an itreveroible flow. Seen in lhOl f09iIld. my report of JInl 2OOIl.1OI1ld'l mapped
out \tie "global spider' wetf _ e><pose<l CIA "rendi6on citulls" (or ttl. IIrsl tim.. was but • S1nBII
CQtlllilMjon 10 B pool 01 OUlSlallding irMlsligatlve worl< by joumalisla' and 1lO~
ocganisaUol1$" IIlal continUflS to grow 10 tho pre_ day.
42.
. Vet while lila momentum was galNuing 18Sl year. wo werQ perfectly ow..... lIlal we would.1iI!
!\ave to oven:ane fotmidallie obstacle. In order to gel to!lllllrultl about the ClA programme of sec:ml
detantions in Europe. Sl&te oeaecy has been ~tically illvllke<l ot national I.... in SlMIClll
instances both to <I<Ioy us aooess to dassified document8 _10 thwall ae:tk>n lZlIcen by tho compolenl
judic:ial _ parliamen\aty aull1OOlies." MOlll<Mlr. lIS I demonsltele later itllhis repoll.U tho ~ \.
and security at information paIlc/os adopled by 6tIIles In the fllJmOWOII< 01 tho NoM AlIanlic Treaty
Orgat\iS8Iion (NATO) are lUSt lIS impeooll1ll>Ja when applied as beI1Illr$lo transparency llIIlhoy have
~n.meathoy WlIrG ,elected to ed as COYllI1I\lBtorClA <:Ian<leJtino operations.

43.

To etlCQUrege evan a minor deparlUrtl from slri<:I a<Ilerence 10 thos. regimes of aJJenco.
",ete<:y and covw...,p would require a rerct convilrgeooe <11 faden. The fiI1l ,,;gns ct CI'IICk8 wWd
have 10 appear In a1f1llttQe$ th9l1\ad I1ifhel1a been ~ waleIliQ/ll TIle lIl<lliVaUon tor Insldet$ '"'
one ClI' both side, af the Alfenljc to tall< to us WOltcl ."",ty d«Ml only !tom Ihelr tear <>I bBRyeI-

ASlJ1Ir«lllll1l~

10

~.
e-equen1ly. lllI of lll8 cond1l............... In Itia l1IpOtt relt IlIlOl' nUlillO ICl<I'088, wNcn
validato end COIlOIlonl!ltone_.I~In the _
of~ 11Xl'ilY. _le8m has 1jXll<sl-end
In many c:lIlIf3a 0ClllCIuClad lnl8nIlllWl - with "!'""
or hIMng
<:lItIlad out c:on1rlICtW01lcl ct lnUlIliaence!lGMC!l1 in
JIllQ8.

ii:pffim=:it8l'lll1g, _

47.

D

H.,.,...,.... by -..Ily. ttte mlIjOrtly ofltlose ~ IllMIllIken p!llc:e _condI~ons

ct alllet CXll1l\denIICll. In 0Rl0r to enaI>Io the indMduall CClnCllI1lOd to be able to

Ipoek

freely end

witllour leer Of eonsequMC&.

48.
II i. my llrm QClO',<\(:ljOn thoI wnet t jl<.C>IiIh .... poaet no threat to llle indi'Vidual or QCIIllldl'tD
wOly Of any of my WJl:d. _
of v.tlom have W<en QClll8Idorabla pel1OI1III rIsU to Ip8ak to lit.
TIlll$I do not Identify by name lhe ~ Of IlIIny opocl!fc qucloa end CllhOr lIoma ct lnlormaIicn. new'
do I lIt1I\bo$ them lOCI apedfically to tl1Il olIIoe ll8Icl by lho opaakat, -.JCh \hal no noader II _10
identify l!le ltmIcllll!ll who spoke In ClllI'idlllW.:OllD III end wtlOIO~. C IaaIt lOt lhe ~
muolbG~.

Thoae ~cri call1ldanlialily. I~ '4"'" US be<:auso of the lack of~ frOm llle
atale8 _ . _
ond tIlcUfd 1101 pl'8\/tllll me frOm I'IIIlI!r(j l~ oIlice-hcfcIn who
OClCllPled I<4y potltiorls <11 IXJ'NW ell!le I1lIevanl Umet and who ll1a
lOt tl1Il dol:iIIonIlhoy took
01'1 bahall' ct lhelr a1ateS.

49.

...ther by IIlWcolleeguss.lheirpoliticlll mas1llr5 or lI>eIrtr.lIISaUllI\tic paItneIS.
In lh8 taCIIant thoI fellow. I I\aMI lhoAfOI'e dnIwn UjXlI'I RlllllpIe _ _ In lho US ond
EOOlp8M Int_ _ CCIl\IlllI'Il1l In Il'I ~ to lay bini 11\$ anatany ct Itia ~
bohIi!l!hll! I !lIMI~ to ~ 1ho moatln-4ePCh -.m to

50.

44.

The cawJyst tor lhos& InYotved rn Ih& tM> llI'OgraImIO to tall< C8ildIdly CD 0\1" 19811111pPlllll$
10 hall. como lrcm the Amer1ean Sid(> - a1beil tI1sl e dagree (f emlIgllily about who _

Ulimale1y

'86owod" to $Ol)' what appears 10 ha•• wOl1<Gd In our favour. IIrt ~. who was an-thlHjXll
in 1MIshil'Q1\ln. DC whon Pres/d8l1l Bush ilSdosed the exlsl8nc:ll (l1 1M CIA's covefl _
tletentkln an~ intetro!;'llJon progtan1ll>e. rel;ll!\I8d an Oll~~.

45.
Thereaf1..... one of the most dlaIlliIlging aspects <11 our ~s1lgation has been out allM to
IlCCIlSS the slnl<:lLJr8s where the intormation Is held wi1/lln the dffel'8Ilt European states. TClWlWds INa
ar.d our team /laS U!1CkIrteken wits and dll'i8Ioped JOllItieS In boll1 ttta poiltl<;af end intelligence
$phel'e$ in variOll$ COIllltrlet.somelimes pLnU!ng multipla eonlad$ oyer 8 periOdofmon1hl.

prognllmI8. tn $0 dolna.l
ct lh8 CO/lCIlPlUOl

Bild

.
_ . _ _ " filIAl tar from IcnoWlnlIlho
wlloIa ltulh. The lr1fllmlalion we haw g8Ihored II. 1l\lWeYer. sulIIoienlly all1a1llIl- and WClI)'InQ -10
anccxnge _ . 8l1etl to do IIllhey canto gello1ho bollom otWl'laltook placo In their CCIII'Ilriea ond
wilhln eenalnollheirlnltitullont.

III.

'1n ~l'bc\.U:I. I WISh to I'l'c9tpriM ~ folbwtn; .Jalm.irtic Q)nWIlA:1onJ, 'iJ!\dl d.p.ndR on qual ~~.llw."IJIIl:Iri(IIiI ~
10 Ii9M origll'1a1 t.eu lIM """'" arntl'lSlOns b:t .,. gSoN! e)'$W:m of Mc:tet o'~ and dlbun.. ~fIn;: Staphon CRy on
.nraarcr:n~f~41r.oGnf {... ·AmIl1ca'1l ~.sr..1n 7h NPt.:itfif.W&/). 17.QS.4OOf. ~~,fd QlTomn fi;ht&,.. m Ih
$,j)/ffUt nm... '''.11.2004, and <tl" ~nr. ~I'C l:I.~1\ eM J. ~.; 10 U ~ QiiC1tMlKP'. Apt
200$}: 0llI. Pnt1tofl CIA prognlrrtrWS. i:lC::lIdjfl~ . .cnt ~ ~El.lro,.("CUlItioktt T.-nor&u:ped, bls.cm PrlaoluOfNl' IIGwN1~WllhinAQ~eb~ ~~~ ldln:ityotOw....... $J'$tMIM( u9 dor0l11,' '" Tll.~A»t.
2.11.2OC1S~ alld 'FD(~ Ntrwon: *f FJV;'ItofCIA'. Yerror Fl$flI: .. ..bin( F&$ti_ ~ Two 0azM- Cos.Intrie. e«oll<'ll tot buOl: of
~.ntYs post-'V" ~"O$" ll"i l'h. ~«t 1'oaJ, 1811:200$]; "'n. w,-.r on r.nd.l:lOrt po~. ~p1lon
let:tll'liqufl:l a.r.4 toltUtt mtn'In roaCl.ll'Cftg T01'tI.J,.: nt. teem hZstol)" af AtrIfnCI,'. ,..,.ordi:Mt't Atl'lCfltlOn' ~: n
n>. Mwt Y<M:4lf.
lOO ::Z1.0U00$. -A Oedy w . ~ - CWI1h.1 CIA Itgdy kllI • ~ in ~ Nnt Y4dw.
1-411.200$; WId "'T'M &hnQ - How en lru~.tfort to
CuM .ud ~ Qf d.tn1. . . . . . !.h'wIIrtwd,... in ~ 1/fItItr
YOU(; "27J12.2tWl: 9nIDRalS Ill!! ffiChlJd E.spos.IoOl\ ~iNtm>V&tiDM and fMdMt.cM G1'ElQ~ dn
Hlt$h r~atoo T.chN~1 t>a.c»IId - BO~I say ~I TKtlCIi Iud b ~ . Co~. SOl\'ll1kna1a
OutX"'. ABC NfM. 18 n.2005, $tJ4--&UItln r.nABe N.-.n Top.aJ,..Q . .4aFlg.fta M~~ s.cr.tClAPritona:; 10oulc;f u
remit lb~ ~mcI to "e~ w-Ngltlan TKl'lnIqlMS," AIIe~. $.11.2O'Ol5); OM Van ~ Jr. IfWI Bouad
Idd:MnMt Ot'l 1M Ei-Man car. rGtrrNn" Ci5tn ct K1dnsppc't.; ~ ~ 01 US
in- i1l. New Yorl!' rJlrtn'.
i 01.2OD$); Nt~ Ha\\1Ol'l "fl11le c:cwr-up re-ganSfng ~ ft~ ~ Pc:if;nd
S~· B8C Rfd,Q 4, 2..01.. 2D01}.
Ind lb. ~ 1tJbUM on lltld"cWod IlIihts In oottl PokM ..M: Rom-Nil {.Jabn Ct~n. ~ lo1 may hoU due to
~.t pIlIOOS - ~8l'J" Guhtrum Ia~ ~ Rornli'lla; 11\ not. ~ nBuM, 1).(l~: tNt Tom H~. "R.mes.
PoJM .Iramp ~sdlH1o t;J SoK{.~~: OG.0'Z.2OO1}.
"1:&m:4eep(YSl,.ttel\l,ItoIlIOYIaJicl;n1fM,no~1"ld.wboud.1f.cMIonttltnewU"ilIIl\l1&'],euIlUpVO(tCorTtrJ
inq\llf'/-ml'tl Clftt-bttlihItChIlSCi8MJ. __ i'l. prMntMikR.blf.., F«DmrJl(oflakltJ:lf~lhrOOghoutu-..
iute.wa,..-n
and foe' ~ fillponfng., ru.an:I\.WId "..,.mttions1oo .m.nstte lQ .. ..,~ ~ua:&ttt.tf. I 'l'l(;atI to thM.'1n ~
1M An.ru:an eM! C.'C.rbu Unb1, Alrl"tnty f ~ l:h. B1tMan 0Irm. klr JusfOli4I NYU $r.fIool4f lAw. 1M 0etIh tal
tiur=n ~ha I.l'4 G&obal ~ ..., NYU SdlOOl of Law. U. c.nh Ibr ~ ~ HlmItl R~ FIrI1.. tNrre:l

1.

tel'"

retA'.

rctlUnO

lin""'·

1IMcom:.pt:fMdwillopmento'IM~lNwlHtefnw'(HVDJl'nJtp'ammeopnted

/Jy 1M centlW 1/IllIIIitI.".,. ~(t:lIV

51.
F<lr lIlo I8ke t:I darlty n t _ aholfd ba IIllIda to ttte CIA'. _
progI'8tl\m'il using the
_
tarmlnoIogy. omong WllIl41fOm1ed quoo1IlI't. lII8 ~ II l<n<Mn aa thO '~Velue
De!lllnae" P"DIJI1lfi1Nl, or atmply l!le"HVO PrognIm'o8".
82.
The HVD pmgremme has _
e V<III'f apea!lc, _
end UlIque ItIWld of the lJnitIId
Slates' eot.<'ilJlrottllT'Dllal opllI1IIloRs In the period aInoe 11 ~ 2001.ln:I8ed, me _ _ w!'l)' II
IllI$lleen $0 ouocaatfuIly CXMDd up I! lh8t ana con ~y lose slgtlt <:1 \Ills progranme anmg lho
alz8obIeaocl still g<oIrlng la/ly of people_ned fllthe _<11 lhe"Wlr""terroI".

53.
Thule h8w been 8CDRlI of sir., in Wl1lCIlIhousonllt of ~ 1>&.... _l1oId for ""Y!ng
periods <:1 lima eHher by 01'1O or mom ageoclas (f the US GO'i8m18IlI. ~ <llllll ceI1alf by rareign
a11ias.

54.
Among ltllI mosI tllINY-populal8d and weu.l<nown <:1_ detenUOlI elm - and _ . lIDstS
10 CIA <l&laIneo8 $\ OI'IG time or anolh8r - haw been tho Vll/klu$1ntlImmont "CamPS" Qn the US Naval
Base al Guantanomo Bay,the ~B1d.1nIC8llIll, ~ _tIloAbu ~lIly in
Baglldad, ~ ~Ic has
_
10 gOt _
~ <11 VIlli.
• no! rnxn
tnln$pamnt ItI!onnlllIon prcvlded by the ~ lIUlIIofIlioll but _Irom 1eaIcJ. _ _ lrcm
f«1'lW 1M'oaIaI aIld ~ filmed lmeg8S of cIol8inaG llllo,l$o.
.

RJ;trlsWatd1I1it.l.tlatl\ltJor.alCO~tlfJuliltJ.~RIEVE.stIiItwltxf'tUldtha8wlMUhHelsizl.la~t)tHI.mM

RJiI:;tI I ~ro«trrvr1(M:tf'W(GftMm&n)'«I'ltttr«30t KI:1'nInGM'e.ldwbcl ..... ~lTlfilllClhymllllltyOt""'*"
I\lItI'WIo.MII~WedtoJNtYtx>n.

"p.~,..fnIfOlaaftMifl'toc::atlon:oI
......cI".eyI'l:M . . . two""mt~*"'9~s4'"!w
.. COOtI~

""caw stlJ;dro1' ICtWed E~.n.~
III S.. Adion

-'.ucdaBVT.l~

htW. qpgrt.

MllJ1.cl~Nrvin,gGacrt¢)'*M""Pv\TOkcadyllolq:_~1Ui
t.t.r~cniintpOtt.

UNCLASSIFIED.
L0330

UNCLASSIFIED

12

MVJur(2llOl)~

ASI.... (2!lOl) 311

11

one""ot former erc <lll1daI_1llo _...ope _ _ pet'llmlll8ly ~ lOr
the ClA weill negot!alll(\ 1m> 1he terms of 1IMI I'i'dng wIlIl "18>'8IIQlI1tr 1IMI1lI11 IiIIIlH:id in .nne!.
Another fannor erc <lllfd8I wIlh <il8Ct mponallllllly tor ~ ..-in wtlktI AI QaecIlIwas
opinling\QId us: ~1\dmIni1lUllli0ll needed _pIIlIic _ , 1 0 IIIlly put 8 tot monl ~
<¥l .... to lind IMs& po<JIlla. and 1hoy dllc:lcIed 10 hold _
"""pia lI1ema8l....... I lI1lnl<
the
two maj<lr cIlanga$ post.QIl1,"

60,

_III'B

In my una_ing, llVJ nanaliw at lila HVO prognmme has p/ayad M largely over a fiw.
y_ petiO<l, r",m September 2001 to SeptOmllilr 2006, CIA inside<s told l4lhsllh<lm Wll8 w1d&spmad
suzejsft nlat it "petSllD" 2R'iI A1 9I nqd Sf\t'mt "jlft M lana is it clip'. Ftom 2C04 onwards, the
Prasid8nl was being strongly advis,", to pl3OIl1l time 1Ill\l1 on the Prog1llMl8 becaUSe it was regardlKl
as na.1ng Meo somewl\at improvis8tiOnailn its natlte and lherolore could ~ol be sustained: "evlll)'
periO<lln hlstOlY Ms lis txx>I<eno:l$'.

Thu$, _!lad emergod 8 Qll8gOIy of lemlrlllla"'Pl'QS Wi1om1lMl CIA conaldenld ct tigh
value and to whose ClljllunJ, detention, lnlllSfet and itIllIn'ogIIIlQ It ~ uItimaIIlly deliCllla an anlIre
awefl PfllPMlG. The !Il!!D ~ tI1l$ ~ !lad ~tly be<ln
M ~ III ;t11Qb:\In!!.

~.

Ill,

11

T"~'~HY!""_oncethil<illfiathey;;;W
s.'

or

62.

51.
TI19 C<ltlalplion or the HVD progJamma Clll\ be tn'Icod to the <lays Imme<fr.ltely otter
11 September 2001, when seniOr CIA O!Ii<:l8ls (mduding CIA OIreo:lOr Geo!lIe T_I) WOl1<1!d willl the
political pnndpals o! the Bush AM1iI1lstmtion (iflClu<litlg PresidOfll Bush rimsel/) to ~. csebata
and formulate slnltegies to 'give some 8ldra poI8rlCy" to Amelial'. "fronllilUl officials" In combating
and countoong the 91oll8l terrorist lhllllU.

58.
of

On 17 Saptember 2001 ""'sldent Bush $I

.

....

59.
Our learn hll$ SpoI(eIl with ll<l'IemI Am8llclll1 officialJ Wllo l1aIIa ........ the leX! of llla
PrIlsiclentiat Finding end part!Qpll1ed In the ClIl'lI'8tions lhal put it l/llo 8dIocl. lWo panlalllllly SU'iIOng
obsemrtioO$ !lav" ernefllll'l Ii'Om lhasa diSCUSSIQ1s. Fnt, by pultin; '1) lot or &loci< In S{i«:k1I
AoIiviU....'· the F~"rodatinod!M mig QftM Af¥!f/C!(. ,,""" in the ey.. ot some at lis own. lllOI1t
"""""rvatiYlt senior
",a1S. SaI>lnd, the "1fJBIJy brotlct net :;pecJfft!' $COpe 01 Ula COWrl actions
euthorisad in llVJ Fllllmg meant that the ClA was instanl!y ~ eno~ room lor _
to
design a sect8t delenoollS programms 0_.",
.

D

mled
tliiCClirii~alUIl~".

TheprofllaoftheHVT...a.lhalol~~,188Iling~andllfO\'ldel1>

63.

CIA \IO$IIlQ COIlVlilad en _

fllIlll WllIlI

OOIl'f'R'Ilensiva and constIlnlly belt1g lJjldaled. As

trrf repmentIIlive WlIIIlQId by MlcruKlI Sl:heuar. tormer C/llel of the Bin l.acIan Unit "tile one pl\llIlem
we never had was lack offl1fllrmatiOl\'''llUlI;ence on lIIll tlVTa was llIlllate willi lIlf-.::as lo their
II1VlllIIIlment il1he 11/11 IIlladr.a and Ul8 ewllJllon of Ita laeder cellf. or In 0!llDr rnejOr _ I n !lie
0I0bllI ~alion ofl8ll'Odlm, SUI:I> 8llhot duelllllack 0l'I USl!mbllulea In EllltAfrlCll, 1he _ _ on
lnO US N8IIY lINpUSS COle. orb BaIlnlrt4d1Jb bomlllngs,
Mlll8lhe CIA nrldltion ~ -lnallgalad In 1llo lllllOa a'Id ~ in lho post.9I11
yea... mainllrlnad lis "SIlaly till(' of !laving oblalnad legal apptOVlIl tor fNfJIrY ~perIlIkln it 1luldIIId.;II
the w.'. posl.Q'11 HVO l1.l!!l!Dll.1I ~ ==~ wlt!l\1lr!ous!swym In
1llo
~fiCIJ\~diijti~thrwof_- 01
84,

JllSll:

~ ....__ ~ .._...

cc.vumet1

~~lW\1Na N·K..t"'J1

aB.t'1IIllIfi-ton.

~.US~~~tbIo~Of~b~~IiII(f'In<£1t;in~"(:O.FnM4cmo(

'~:C:Jr:~OO:,'~~?1J~OCn, ~ &'OPl'. l)tIIr Otunhlllff, ~h n~ ar 1T.OIJ:ltIOi In tie
rTWtnOln:: °(;IJ.w ~d:. Chfn Chi., of tM CTCJ ptNtn!Jtd It MW

~ ~

#MI b1oedtM<I

ow o¢on.

(M-

dNJingtcUlf'lmlritt~-~f;/Nftwtmolwdl.lJ'JJnQfMId~Iint:ltMCfAWdotfdfly""'IJISt'MfCflll)UlR
0U2 ftt:.lt:$IilNkVl. In t~7~. It WN dHt
tM AdtrIn~Ofl .-w Nt . . . war Ifrff wcdd tltifll'f MloufM by ~tlt

(1).

4UotJ. 1'1IIr: raqund .. "PI way or op~. 8M TySe!' 0rulr'Mhr. On tilt BIWt: Nt l1JsJdtI'. . AI:t:oHt of HtJw "'- KMI
HouJe C4mfJ('OlriaH~ lJUllip~, Cttro4l" ~f, t'(twYar1(, 200G (hQin&IW~~~. ())tNBttM1"•• r p.

'"

"Yh.8
r.nlf
Mrl

f;ln

~.~.~~~~~;;~~
1M-

cfthe C'-'; the

iti

cl'IQlI'ltI.nlh.t.
0.
,,"OurtOWdI".t,ll\4lMnOlll
~ ~1titlA 01 tho tIt'tvdt til. doalment dD~ to the CIA.. """"r_ wtt'e slJG ~ MPlitallllJ or,,*, ~ 9f

llltherr:W.IIIRdO~J:I(thcalgh1kJMwo~~~2QQ'1),*~UMIItl.tttm~tuk""·lhre1&da"to.,.eJl~

,"Uie•.

,,~t::i:a1:Icmo1tb1~~
~tnQN'
ff!me
...
_ _ oI"'U.f\lw
_
_ tJOnJmn tl1hecourM
_
_

"'_~.

_

~ _ " "

... _

~e.trMt.

....... - ' ' ' - ' ' ' ' 0..-.., _ .. _

"LouofHJeh-VablT.,.
...

~Tho''''''l'''·1Ml'

.......

_o.-T_

on.llInOJ"'.'" ~ UNd.

~"_-'''­

~

1~«mItbn ~ (F.oW ~kn tltGll'ghl tI)' U'lf Mwril:zn CHI LJbIIttiI. UI"Iion (Aa.1J) In 200II. Jg~ the ~ -.copt
and c:omtBts of Itl. FincMg rtt1'llb'l t,l~ end, aDl:Clfding' l:O ~tlon&la1flrs. IYItt ItNcf r'I'IIftlen.m M f~
~ ti\d Senttlt 8e*t ComrtiCI.. haw DOt bHIl 1llfO'WM til et:QMt; l. $ . ACl.U Pe.G ~ "'CIA A'ldt
~ a u Exi*nct of
PnUfent.l Ordtf on ~ ~ Abroad". 14.1t..2OOe. avdLblt ..
hWi\ltwwIo'u.am!u:fP""'or1\r,m;Jt2J!!'!2rJO§111,f.,lltrrl ....~U8~P8tndriit.tllhy.~m'Mfl'tt.Of8t:~l:OtP~
L_try (~" !r'l(:Ortl7lg" ~,IrmIn. 8etllta J\Ilfo'¢5Iy eo.,."... 'Oft DIpIm.m fA J~" AMPOM. to FtItqUflt 101
OGaJrntt'lb
~
tc
oulb
~'.
inttl'l'OP'tiOn Po&:iN.. 2.01.~7.
..~Ii.
a.t

B5

of logisticS fOr 5QI\\8 of lhIIlT105t clavUtaling!llmll\$l plots allrlbutllclco AI.Qaedo and CO Ita assoc2lell.
In our di!;l1I!l$IotlI, ClaTenl8llll former CIA o1I\QaIa have been keen (0 llll1fl/lUI$e. -.In tindsI~t
lhal their l8I\lOlS span ody • Wl'f fllliled 1WG8, One anartad: rll you look dawn the ill III 1he people
we'v. pIckod .... slnco MI. ClleAgonoyhll5 i118Inlalroed 8 Wl'f high 1_ of pwtInenotln tamls d_
tal'\l8t1: Anolherta1llnned: ..... !.-cWlwM! !Il!Ij~; waW8l'llDClIll8le8dtnllip:

btUr//wwp.d'6l;ttll1ld;"*fnr6crf"st4sIClldlWJP2'l07tm1.
""'*_...
-"l''''
.,....,.....- ............
.. O<._.. _....--(llNl),

toNij·..... _ol_(DoO~_.for_o-

~

~

alllIt>ligl>-V_T_ _ Pn>flr&nt,Of.OO.2DO(l._at

:m'=='=-;:;:~=QA"~c.Ar
• ..,..,.""';(1Ut by.".
...__

~

In~,~,Mty2«a_""'""""""*"_",_,,,,,,,~.c

..__

eo.......... t:tf ...... t:I!lloN
...
""""'"

~ifl:A1Qa4cMWIlhftIb:~'--"ID'tM"JW'Ilftoo~
.~Tho_.,

...._.........

... iy~lIk:l<I1_l\'CIJt!'IlOwu~:

.rCho_OIld""~~r,...""

e. , ... - _•• In<luoIilg . . . - - " ..... " " - - _ . , . , . " . - .
ThO.....,~

UNCLASSIFIED

135

L0331

UNCLASSIFIED

13

ASIJlIr ~OO7) iI8

AStJw-12007) M

I>itlt the ~ Of most US paI1ner CCIrllriea. lll8 ThaI GovemmenI tuss demld U- 8IlegaIiOtIs
WUlg1\t"

==,

66.
A=rllJng to our
ttl. tellor-maole HVl) prognIITIlTMJ a<:UlaIly W- out of lhe KeD's
capwre lor 'C'} cotogory, wtllch oomprlStld IlIrgols wllcm lhe ClA .01 cul exprusoly to capIuv,
$OIl1lllImes OlI'ering muJli.<nlmoo dOIl4r us Govemment mwanIs lot cleoisMt tipooIfs. lI1e~.
sfl'll'olfll HItQ 0!QQ!jlfT!m& 1Ie!ped to address !l k9,'/ ....lult neodT quesl!O!', ... 0Illl wlllloplacod 10ImI
explained:

we ktI9W thSl we WOtJl:j lla'" so"", $I1CQfssM WOOD .... ....nt out to got-l1<IYJ. wi1h !he
we

weI8

nas.
-.:m

The HVD progl1IlI1mlI
ltla _
CiXIInt, grw;n out of 811 8IMltIOn d Int;IoPf/lde1lO8 on
t!llI pM d lll8 CIA 1111118
d 'l!XdusMt QlIlodf _lta h1gh-Ya1\la <leleI.- let es long as II.
continues III questlCI1ll18m. HClWlMlt, as my fIncIInlla In tha following IllCliOnlI d e _ , 1M CIA',

11.

clllRias1ine operllllOna In EtIlIll"l - ircIudlnlI ill l!lInsf«I llllll secret cIe!IlnlicIl3 d HIIDI • wtllI
austaned and keplaaaet only IIlrough 1hIIr cpenalicloel dttptNll1enl;e on alIlIn:eI oncI ~ In

B5

fhiowing 8t it anrl the suppozt of our friend$lrt tIre P8IIist/ltli /$eMe<tr', So
the mal qusstiort was
we IJO'IIUIl (J() with them _
.... gollham?'"

II!SOUJt>:lS

14

wtlIIt Ie moI'8l18liti«la1ly tha mill!llly 1pl1eAt.

""'8/_

.

D.

8ecret cltlm1llon.lJI ColInc:ll of Eurvpe llIIml>U _ _

I.

Thlframlowlntc

il9 HVT.

E>NIoes

or nabons- -

-"lIle$.

balleving that the S.Ql

could not be gualWl\ee<I. On \I1e same ~ Gu8nianamc> Bey
tl1ll" liiideeY ana ISOI...., umt UIA CIA <lemend8d: "GuentMamo was 8 real me... The llllerroglllors
lItere were FIll end ""TlIary... lwhollhougllllhey " ' - WIlel tIIey Wllm Iocl<ing tar, but!hey didnl know
who lhey were W11;jng to. The Un/ted Stales bad B labonlloty 81 GuanlilnarnO, lor lhe lil$1 time. to

4. $ecwtnlJ CIA ~ ~ _
TtelI1Y~/HATO)

12.
By ena::ting.8n 8ldI8orIfn8Iy llIJ!hoIlselIal for CIA _
aetlal1llRKlgll a PnIIldenlIeI AndIng
will1in netlanellaw, the BUlin MnlnlanIlOn ~ tha ~ willi t!llI ntll hell' or the opnlIonaI
l!Dnewcrk II. requirucllD ~ the 1In11sc1 StaleS' "gIOb8lwet on lettor,'"" To ""'"", tha IIey
e1emenl> oflllb eulllorl8lllion WlII1I ~ 1Ilal_ ullro8d 81 poISlllle. and lltlllllil!!i!I<film
Inlerferenc:e ond <MnIghl) IIlal wllIlIa _
...poulIlIlI.

understand !he Insurgenl etm Of /oJ Oaeda... {b<rtl we """"""Ie: k ~I'"

68.
Hence !he _oepl of "!liBel< ~", • hsntN of facil'l1I... f1I limited Iil& end
d:1ferertt ptltlo of 111. WOlIcl, wOOte the CIA exclusively WCUd be ll1e /Siler.
iv.

~

In

73.
The _
hell' of 1l1e G<fJlIllcIn _ tI1en 10 I<lenlIlY the _
by wlIil;h ltlinlsgnllll the My
oIemenls 01 US IllIl!onIII pclIOf into lIIllnlemaliaoal, ~tal.8I'J\lRlllCh.

Th. vwllll/on of $peClfic " _ s/teI" in the HVD J>1Offf'lIfI"»

69.
A llignifil;8fll btsal<1Iwugh, WIlidt _
tile Uigger for tho openlllcm 01 II1e HVD
pIOgtllmme, was lhe CIA's capll.re of Abu Zubaydah in Man:ll 2002. Mr Z1Ibaydah's peaJlior

B5

"" the pIIitfOnn af /tie Notth IfJkInIIr;

embark u:::,::UwWjt!1941"""
CO'''"\:

sl~~d no!
i
oetiliQ Uijijrliiflliijlcij

impcrtal1cO (rom the US Government'. perspeaive haS b<K» Willi doaImented - nolleeslln Pres!dIlnl
Bush's speedt ofe SeplemllerZOOG-lnwllidl he wasm<llllioned 12 Umes,lnduding to~e
lhal etl'e~emaliv&sel at proce<IiJ~ was i1llO<lUOOd 8jXlCllil:l.ily for Ills Ima!T(l98litn In the llnSulng
period of approximately twCMllld-a-l1alf years, informslloo gamam<l flllm HVD lntemlgalicm usIng
Procedu'as is $aid 10 have ptOWd alICia! In wmbatlng AKlalld3's ~kl8 le/Toll$t
opetlltioos."

~ ~nBli'-'

.

lit...

""11m
..

~._.

~ ~

_.

-GowIn'

B5

There Ilre two more specific IQ<;alion$ to be considered as "lllacl< 1Iiles" end a!I<lut whk:ll we
received lnIoonatioo llUlfitiMlly serious 10 demand f\lIIhe( Inve$1igation; we 8I8!lClWe'1er nolln a
,Uon to eattY out edeqll8le srmlysi$ In a<l9t to reacIJ definIllve conduslons In llis tlljJClIt. E!IiLlP
~d. con1irmations
~as hlMlllSOd 1Ile lSl2nd ternto;\]! of
;?~FYhe~~;ecUj1ilild
f(jj1i#li1j In '!1OllmUiQ:
.
. I iSVl/\e
rrmmt W188l1i1y IIf;QlplDd "~flllm
IS aulllaritiGS to 1Ile cooltelY, wlthout ever~iIyot l!llnSpemnlly inquklnglnto th6 e1leglltloM
llf, or BCCOUniing to the public In tl $llIlic:ian1ly ttlorough 11llltltl«. Se<XH1d 10'8 have been lQId 1I1al
ll1and hosted Ule ~ CIA "black aft.,' end 1I1al PD.J Zlbevclal\ WllS h8k1thern
sollrCii$ UlOltlll6Cl IQ us that Theil8nd was Uiid bealu.. rl \Ile ruady BV<IlIallI~ oflne .
of locel kn("o,Jedgo ""d llil8lllml rulellonallips lhel daled bacl< to lhe Vlll1nam W&t. In liIl8

tn.

:tI"'rh. p!nlH uud M~ LI Qn~WQ4

tzI bt • f1ft~ to the'
S.rvc.llfttaIjg'fnQt Ag,fX.')'.
trlotaryml""'en<lt~andl.~",..,~f;)Ibd.OUClJoO~ttSonwlbN~

"'.-.n-c:e

Of 1St ~ II

B5

~,.'''.

*

mlGe:-ISGnS<dNfOl1lIl;to ChM\. P""" ... *«iionV.al'ld: VUl '-ttl ft-ekilTport.
Pt.~~lB\r.th tluptUtnttd .. 'ntAn .1 V. JulU ~tlI fI'mlthnatJ:llrrDIJ~~tWrt""~ ~
~ ~ •.• tt.tt~lpMUIl1Oc::otIl't'CChdot:l."J,th:tne.~plCldUC:lhQ·,Jt1MS."ntt.tCII~OfquatlcJnlllJ

;I Ai

OrnNrty awryuni;)c N-02I~ ~or N&odlltl dmtnH OYtM US ltld' lb"lird WlpognIlJ'IM b'pn", &Mao
Otfiot of 1tle OttKtor or NIbonIJ Irt.Wg.llDl (O.'iQ, 'SUl'M\&I'.t of 'Itt! Hlsih-V'.~ iwromt oa..... PTQgrtm'i OI.lOP.~.

rot

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.....

fn .. _

-PaIoitWfy

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'"1'M

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~~~~~~~.:;;~~~.::=..~

_ar.. ..-_._.. _.. ..__I*Pfo_·

............_lIIlah ...... c...lIlho_.,""'_~

_tr_C!I'o_

1G,*,*",*, T)tW~.OtfM&b\IIIJ!4"'*tO'~tI,,:ss:·)t
. . dMrt'\lth~MWINI• • ..,
_ _, _ _

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_21: _ _......

"4iIll~"at~~'*rrr)Ip;nft!i~:lt:tjtil'JHl'DtQ/Jl'lm2.-odf
~ Su.
lU:an9fo. UM~ ~ Parbmtnt. Pul:loDtlatls "
R~-'; "\YriIM ~rt f# 2'.De.2JXlof". In HOts» of

~ jX:in( \1. c:oJurm 1'T¥l<N. Ou.ltJOna 10 H Rl HorL "ltd(
lrk. ~n ~• ...,.,~ aI
txtp..1rtrrNr cvp:.ta'icm; P{d,mrotll!dptjt'W!2p0300ptmntrdtrszOCCJtmDPV4W21"'3 blmI.4082tw1:l.mm1
Mr. 6tmt
Milt" '"1ll. Unr..d Sl~ a~7 htJ4 "pn~ aulIl'*i u.s thrt M 4m~ fUMo at 4nY Ikr. p.&a«S In ~.1I'lroc.Igh
Otego Gf(~ qr ill I ~ dttR 01 haw dIarnblrQllI rJMrt M4 ¢l~ eM .~ ~ tIIIl
tclIlfy ~

Co:lmmom

_ _ llUm;"' _ _

~;=,-:,=,,=,=".e.c:=-=:.":,~
__....
_lporiot .. _ _ ""'G_ _
_odh"'US,'Tho

:..J

:a Jl',It ~ it l,jr;d.mood fa) tMI •
to ~ ttgirM gf CIA .~ lMtn~ wetI~n·. \IIIINch '"At
$'Jlllerq:uenUy und !:O itUr:c:;atli "'i~1 O'ttMt HVDs. For ~ of thtM: t.oM!qun and ttl. {o~f end '-pi]

l

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lhalp

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~.'I'b.GMlmmem."'~edl1lll:tt't."~"""CCIfnCt
•
wu .. U1s ~ )'OU stick'Vl'ith !MId you Jlnow';. hoWl'l'fll'. 1irP ~. '~M
rocu. ot O\lt ~....... tfirt nC!l ••banta f\1flI'ler 0" 1Ih... r ~ k1 0\If

• ene CIA fQ~' takt us 1n ThtlWt<l, t
p*tta"nil'lg IQ Th'llaf'It:I ~ tIl:;lC Vtf clittd

dlfC;UU~•. The sp$dle IQca1:ltm l:lrih."~k.itt· ~ TtI,lInd I\ts *t'llWbkty dt$t4'Ot)e .1ICI"1ItJ1l"ll.J4OA tr.i. nnrb
Th~ Nt r:~s e,.. ir( ~ no~ of 1M ~ lhJt; .... don: MY!&' ~ conneetll:lnt 10

low U<fon Ro)'aJ

UNCLASSIFIED

lllOll-""",,*~,

L0332

UNCLASSIFIED

1$

MlJIst (200'1) 3e

ASlJIlr(1ll<n) 30

16

B5
B5

75.
Th. IlB<l<I for "",,_eel ~ Il<XXlRlinlIlo "'" sour-. ...... d118Cl1y from llllJ
CIA's resOlv8lo lay greater emphaais on lhe ~ramlUtary adlvltl.. of Its COunItlI1llmlCbm Center In
the put$llit of hiyh-value tllIgels. or HVT•• The US Gov6lT"ll16llllllew.ore had to seek lTlllllllS of
fOfging Intel'\lovemmenllli paIttlet$hlpa wllll weII-<lnelope4 m111t1ry corr>ponlll'1lll, rather Chan
simply ntlyirg upon the existing Halson network. lI1rol.Igl whId1 CIA agents had been WOI1dng tor

81.
Yel In my YI8w, cIlodts and belenc:oo ~ notI""'" ~ andj\ldi:lal ~gfll.'"
well as accepllld intemallonIll IawI lP/QITiIIllllllltorbll -..'QI'tlY, In !he \'elY fw1dallana upon
wI1IcIl out ayatems tA 4emocmIic /lIXIXIllablIltj ete bIilL In llmes or ata1t. IUdl as lhe ~
sftermaIlI of lhe W111l1la!::l<a.lheMfollllla1lans rrultb8 ~ b y ~of caI8c:II\IIl
resolve, not welll<enod by a:tt or lDIaIoral ~p.

<lacades.

82.
Illl now deer to me IIIIIt aslhey wont '" IIIIIlr lntema1la.l8l1lilloll.Oj\lh1l1lllr~.1I1lI
United $blla$ IntlM5l- ~
upon'. cl8llr 181 or ....1ahnl r!l!!l?!l!lltyA: ClnIy
Amlii'""csn otridaI' would ~
rl6f wwaw W W&k W1ii; CriY OS P1idO& WCttd dIftne
exa<;IIy lhe _
of 1lle 1Ill1lllGNHp; lWlll only US lnle4pretaljcns fA lht -Wlc:ablll law (1ncIldng
_lherornot~"I'I'fled}WCUcIbe hekI\j) l:indlluCl!CllIIl......-.

=c!tIy-

Ooe focmer senior CIA official lold u. that IIdmirlslnlllon officlals ~ rrn.dtIIa!snIJ
nog<JlialiOll$ 'like 1hay WBllled to Illise [lila ClAYs sfatU$ up to a land a! SlIp(ll' IliIltary.Ql/liell AqrtrK:;f.
SpeOfica\~ \he US ~~n1
set <><Jl to~'
'from llS~1lm!l CllIlll!liM
!Itl
"i@SlIHXl~dif8cuy~~ 'u -

r - - - - - - L . '- - - - " 76.

D8DCJ'IS

posslllle:th!!fWOUId

~~twWatmilWi1iB@I~

w

.d

iTiOf1iliiS

63.
llNed upon my ilMJalIgationa. Ctll'IIlmed by ....1IIpl. ~ l/I lIlO gD\'OlTWIIIlnlZ lIl1CI
~ sec:Io/S tA ....... ClOImIrIeI. I COMlder tIlat I can aiI8I1ll1al the II1Nl\ll to caIar to 1IlII
CIA's l<!l'1 cperationalllllllda 1ln a muItlIlllenlIl8YeI WlII'll cto\'Ilklped lRler lhe ~0I1ll

In reletioo to the last poinl as I ~ed In my IllPOfllest year,""1h8 tines betwllen clllVlan
and mllilaly <:I!l$$ilieati0n3ln 1110 ll\'letlon W<llfd W8I8 e\lQul to beolme lncmcillly blulred. Corwan1lonal
legal l.I<Ide<slBndings a! cMIiBn and stete Ilights'" were abooI to be tund8lTltlnlolly <:heI1~ ... at
least ttl<llalilude in !hose deliI1itions ~ to ilII maxlllllJ11l po1anljal.
77.

,

78.
The US GovelT1lmllrt'. posloS/l1 detainee camtor opereti(:ns would ~y make use of
praCllClllS !hal w.... prellllXlsly considered 'anomaIl..:'· $JCh as: cMIien altctall lending Ol'lalllllt duty
81 mililaly eirlieldC; mlntery
~ rGgiSlered under dYlien opel1lltn; end r;iYliian 8g<ll1t9 and
,a>ntraclors travelling on military tnlYGl 0Idars. The CIA'. expancfong and evolving "nlrnfilion"
progmmme, whicll wtUd ultimalsly e1so be u&eCI for 1lle lrBtlspoIlatiOll 01 Higl>-Velue Oetml.....
requitGd cover that would encompass ell ollhese et1OIl\IIll.. end more.

AlI.ntIC!f!!lX.~1'01.
/I,

I

C2ruo

79.
In letlM of ~ the US Govemmenl insisted on the mosl stnngenl iIMlls Of pll~ClIl
security for lis PO_Mel, ... wen •• IIOCJ"eCy lU1d HCUrIty of Inrorma1lon dLrirg !he QPGIllliOns
lIle CIA would carry out In other (;QO/\lties.

80.
ReneCling on what our sources have dasaibed In 1M regetd, I c:onsider!hal \he $leled
US policy has, in feet. on 1118 pretex1 of gu8l'lII'tIleir .-rtly, Intentionally a1llIl<id a fnlmewOlk
enabling it to _
ell ecoouotability. We 1\e""be8n laid that tlle US GQ'IeII'lm8ntsought a means of
'Insulating' 1110 ClA'& adMlies (end tho$ll of Its pal1ner InIeilIgellQf1 agonci....) fnlm
democratic oontrol$ in the f""'lgn ool.fllllea it open!led In, no! to menllon from wIlal it SltH as arrt
'Ilnsavooty ai$PlJI•• over jOOsdiClionai i$$u9$.'

I

........--

In-.tlon <II~ V<little NorIh Alittntic T-er

the URtod Sl8lM _
III lila InUlmalla'lal .:omnuily aim
All a pRlIlIlnent US CoovMsIllll1l t1lINlll<lId rec:enlly, 'In lIla_
of lila ~ a1latk en tile unt'" SlalAa on SiIp\amllGr 11111 (20011. we
movIId by the
- n a t ) ' SJ.4lPQIt ancI1lle outp<ulng of aylqlll1lly ftQn _
the Qlcba. 1'l1es. IIlnt!menIII
IIl8I'!lf9sled tllemIeIYBS In a unlquo and eImost IlWuroally IIIenld convlc:llon Illat1lle Un/Ied S _
IlllcUId be QlW!lOd streng ~ for Ita lnlemallonal count8r-len'OrlSl eII'orla, lncludlng tot the \ISO of
84.

It $houlll lllI l'IICOIIIed _

~ l'I'lOInlInIln 1lIItory.

mlnlely tome.

85.
ThIs cenvIdlon ...as most jlIlllIOlmBd wtfI1In the NATO AIllIll'lCll. On 12 SepIembar 2001,
NATO l!IeflIby '""'*"d!he ptIndpIB of lXIIIecliYe deteIr::& llCl:ORlll'lg 10 _
5 of lhe NOflh AllenIlo
Traety.'" and thIlI tot lha ~l1t time in Its 52-y..... ~. InIlllllly, lila InvacaIlan wea IXlIlIldenld
provISlallll_ It Ilagan wtll18 condl1lonaI c:lause:

COfflll_

. ~11t 1$ d<1ftNTrIiMd Ihat thI$ sttick WlIS d/fIdSd Il1lm a1JIoBd agaItI# the UniIIId St4/eS, U1ShIJIJ
be 1lIQIlJf!OI1a3 en lJ/;/jQn aMIllId by Mil:III5 "'!he W83/llngtlltI TIlIaIJI."

:.

OI,'fllll !!'" W8lliI8Il1al foIkMlICl,

: : 8wh ~en.

8S1d exea.rtlld tho
and CU1lIIiriij
r
18SjXII1M.
In
DVIIng
lrlllCCOllll alll8nNATOAul-.c$~ll1alllOlllElof_
United Stales' "unilCl!Clllll pwvgati..... deIa111ed by ..... l$CllRIll \\'Ole IlttiCl.lellld fA qJlte eJ<lllldt
_dIrlngthaa bfIelIl1g$:
'I was PIU""'" In l/ItJ [North A111l1tticJ CoundIIM> _Ie Ilff6 NATO /mICJI<1ld A1IJI1f S wfIlIn
~ US Deputy S«nltaly of ~ PaUl ~ f&I QUI his pclIlt41tfl dilc:lrfM to ftlfl
e68d' that l/ItJ- mis$Oll ~ liie CJOII1IIJon. TIn was. In my op/rlloII, , fUndI~
"R'l"_ _ DoWl<d(04Qt C/lUmInofClMo

c:en..of,,"_.....
_ F<nIgn""'"
~
Oounlort_
.. _
R
~

II For
2QQI).
lII!I

my 43l:UUlCln of ~ oftttl'D~4tt1ln... b~tn poWt en til "g1O",- tpkflt't ... b·, ... The fLCtr1J ~
SVpranotll".MMdlonr2.2to2.., papes1Sto te.

For ct .1Mont~ analysb orth41 ~bleg~pf1i'ldPf*tOf ~bIw, . . . eM OpWcll att 1M I"",~\..p

0"'""""., c.£ ...._, Sf_ II _ d . ' Secrol 0<10nlian Fdli.. <lUI ",,",-clrIlt T_o' _
... ~ ~
Itllll V.1\ice. CcI'l'l"liWon ttl Is I58l1l PIIWY S:tuic.l\ 17J13.2UOIt. ~ f'lo.. :J&!2OOS. COL~ ~ .. «

,..

M:p:/hNNtYS'"$9·C92·.....#s;qI2'QQ§KjQl~ ..p(~r"VtnnComrnlukmQpWon.17.o3.2ClOfJ"');attt~

.

u An .~on *ll~ whom WIt ~ C'OnId«1tldy,.ees ttle ~.~lflIin· to~. Ute practioM J r..r-tC1 Mr.
Tbtre lie: ft\l~ld; «:a:~. ill UCh of 11)fM ·~·In UMI ~th..,."", ~ or.~ Il'IC:IY8TIWntt I
........... o.ll<o ......... olmr~t)'(d...b&u,.".~bY.... R_ _
'" E.....,-l'" £uropo... 0."..;- lot ... S""Y .'IfIr~ lot l><W9 """".. me will
_ . II

"*tlt
ln""'_I _."'....

'IaAO'JtbmltlWlrll.ponu(Dmr~UIIIC$1orlntonn1Uon.'~M«iIbf.IO~e.na:~~~~
tnrom.contromJT'alftrple~.I~u«ng6'omtUU8F.d.ral"vIdion~(FM}~",~,.a~C1»E
tntn\b,t sta.tt,. r~d\ at h~~J,&1Mtion 1l4I'I!'lori1iI_, aport opt't'ldDl'I. &l'ld WItt eil'$rMlt. KI~'"1c1.abb:a.tt­

ol.rmdl t'I'JQv1IIment.!:t""t'rH ttI;Unpfy u ·Tht ~ D~"'·.

....... _ _

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, t1.1lQO(l7....

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~

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ua
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hoMdlM tomtlwFrwMh ~UM:ndl"~.'l'oc!!1t1.... "" .. AIMfk::tM,..~.a.tmpport:Jil" er=ded

:~~~==~s::...=C~
l IIlaJ'Al1y,,",_ofoplolM
~ ...... _ _,-,.,...... .._"llNo _ _ """_ _

=.-:==.=

itI£Juop101 _ _,. . ." _.. _~_tI1l1ld_~l1>fr
__·_"_

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rXbtr'~ .tPdl'*,*_.dIMIf~~U-ft*"'~An.~tDlNb'I'_mcHftfl.~d_
f*:I1tIlNJ.t11:fC
..... A1JywudrlnlMd.fIJackfIJS ..
o.dJ _ _
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.
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co--. with eur-, N1170
rwI fI>#

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_"""_"'NAfO_Ooputy-...y<l _ _ ""'-,~--..'-''''''_
~"''''''''''-'''F_TIjIot.

UNCLASSIFIED
L0333

UNCLASSIFIED

_J=~~~W~:~j.QOI

AS/Jut (2llOTJ 3&

11

misjlJdgement a/lOut tho natlJtl) or tho Alliance that dllvalued l!7e /Inportlm<;fI or S1JlIIVgk;
$OI1<l4lfty....

Th. US Aanlnlslmtion'. brielinga hl\lI U\llir doslrod eI!ad of ~ lb. condillonai _ I n the
NOl1h AUantie COundl'S~1 stallllTlGnt 011 " Oc:tol>et 2001.FlP\IO Alii;! Olftiwaa Nt
lalSnmcus assessment ~11 8Mel\$ had been _ d egain$t the United $lalas fnm abfolld
sod Utel Alliol. 5 was th8ll!1om.activated...
Co~ me_ in Ille conI8Xl ol a miitary lnlervw1lion ... AlgllaMlan were wlllllly
anticipated - indaBd, as on. aludt l>01ed. "ma.!!t NATQ member8 hO~~ lnvddng Miele $ -.dd
fIlad the United Slates 10 c:ondud an~, ms~ against AI
nq; 0\&1
~st <:o«'dlnate Its aettons WlUl the
mil
siriJalft 8til PQu~
.

B5

Ute dllVelOpment of CIA dllndoatina operations underthll NATO ~WngN.

90.
There was a crl1lCll, almool pmdoxleal policy ohalce in the US GoveITmallt's .lilnCG
lOWatllS the NATO anlanoo In aa1y Oclobsr 2001. The 1n'lOC8liCo of AIlICle 5 COllId nava been
deve/opell" as a besls upon wl\!on to conctucl a millta<y QlIllPBIgI of a oanvenlicml nature. deploying
AArrJ. Nll\I)I and AirFOI<:S 1ro<lpS In 8 joint NATO opemtion. 1 _ I t _ t opldorml\'Omwltlcll
the UnIted statu obtllned 1110 _nUll parm1QIons and proIeclJonstt reqvlrad II> launch CIA
covert lellon In the "war on teml"'.

91.
The l<8y dale in temul ollila NATO frBml"NOlk ls 4 ~ber2001, wt1<ln the NATO AIIiea Ill8l
'" . . .oslon of the No<1h Allanl!c Council to ccnsldal' 8 8$l 01 oonctIlte propos8ls !I>:lm !lIB UIliI$<l
Stales. In. press statement after tho ••ssIat" l'lATO ~ lOlIlllobartson llM<lUnetlO
\ll8l IhB Al~GS l1ad~ ~ - at the ~1 of 11'1. Unlted States - to tak& elltt _/88,
iodivicrualli and < p I ) P M
~8Viiabfii Iii Uj CWI!?8'9n 89B!m.t l8rronsm. AS TJ'Wt
-""" spedfic measums agraacI to wore 88 fc(fa,vs;

me

~~J

ds on NATO
• !nciUc!!ngtor'!l'llolh forURled Stales
lWld _
AliBI toropBl1lliCna
!lSI
Deploy e1.....u fi the NATO S1IlncIng N4V8I F _ tD tha aaatJm "'~ If oaIlod
upon
Def)lOy a1emenlS '" NATO AiIllDme ~ ~ Fcn:e !II ~ oPfttiCrlI ilgIII/IIlllllTolbrn,
IfcaiJadt..,on.

92.
Tha 1IrItCl1_ en wliIc:tI u- _
.... ~ waIn 1110.- d their
concep1ion. ~ 10 • 1cimW ..nIor mTO ol'Ilc:IaJ, ·In ccQrUt 10 many ot/Ier lrtBmational
Otlletlls81l_, mpansllility for cIndlfng doarnents and raSOlU1ions h NATO g.. .nlh tile InlBmatlcnal
SlafI.... yet CI Lad RcbrIIon llIltlnl8ct ill Ie 8IlIlllrnllrC,
WIlllJ lllqUII$lIllI bV the
\JIlite<I Slataa fcIICMlng lhB <Ia!eImI1llllIon that the 11 Sep1llmber atlacI< ...... dV1K:l8d trcrn abr08d."
II¥lBGd. ...... Am«Ican .......... Icld .... IJV8n the ex8d ~ InwHclllhe ~ _ ..... WiAI
formulalud and 8I)'Il9Cl upon WBI IIOlIIllIiWd, chdtecI, ra-<lrafIad and pili fOlWa1d uniIoIeniI1y b1 the
UrJtedSlalllS.
.

-a- n . -

aal'l,.:lt4l, cocm'M.IFtr~.IU~notI31. at p. 7.
•
S tell... '0 ·".u:l' .cao" " (t.d'! Patt1J dHn'It nemtAtf ...4 dws r.ol iTIt!MI tcfon tD ttl.-;tofJ of mrury

St.,.

wc.. );

ea:

• St. &It.O PMlp Gordol\" "Nt\TO Mel \. &fpC,. . . . h StAWvr1I. VOl ..~. No.•, WIat'2001 - 21XJ2. at p. n. At. rentor US
ot!5claJ statt4: 'I umtc tr. we l~ uy that ..... ~n' ttI ..kIn SACEUA
N4TO S
mt Attfd Com;nw;nchr 101
em

OIl • •

.'

•

•

,ue:
o.
«'U
IInc:t
•
mdltt~fIIA:M' .,k!d ",,*rbhj ~ Yf:lU wmw ' " US. wolol14 )'Uu ¥mit l' other

an agree",," It> undGltak&

CICl not CCIllIlIWle

-In.

7/ Is to blt oqI!!dt/rnf;I6"trmq".... me- mt miN to g Iborn!I ~mlltI! signed by lite member
smWlJllt to an inJzlmlJl dodsion IlCt9d In II ~fi~ 8IlIIfIl Mil,," up t1y the
IntemB1iMlll SoctB!IlJ1.t fQfII/!ect fhIJ dlldWnsu I$IlDItbylhB 0:/IItICiI on 1IJ1l/dD/a.·

K'~:~it;9~u::rR:::~~~2~. '~mttllby NATO~~ ~~MOrt .

snO\MMClQ(.:SU'lItFrlJ'lUand~4imClha"-dh"'d"'''IhIl~IItlon"
.. aiatuMtf~6did.not.~Vy
W:UI.dutylO ta~ p&rlln U34t6tnl1bty.man. In ItIttl'91d. 1M Tom~. Mfo"OJ,: r•."tO.'lItl\ NATOfiJd"'-w.d
Att1g11., UK.20ln, -.1 P.
tMMvtn R..lchw, .".. EV-NA'tOR.I~A",. MdPci1'iql ~2QOClI.
lJtp. 190.

rrmt Ilgnll!c&nl, 1hes8 _

94.
CoonQl of El.rqlt olfichlla 8lllln1ilBd to ollIllin • 0lIllY d lila "agreement' et 4 0CI0bBr 2001
!I>:lm NATO l.egllI SaMoao on.......-elccculons.
nlIpCiMe clal8d II jl¢I ~." NAWalagill
i\dVI.5or, Mr &/dwin De \Ildts. subrriI1Bd that tha . ~ In question was ae:tuaIIy mora propllIly
c:ilanlotarilBd lit 8 tel rI: ·decision.taken fl'J the NOI1h I\lIan1ic CCunol on'" d8tB"; Iw UllliJned:

~kJngN1SeIeS".in.NAro~.$ormMt'a00tt,"""~btsp:fht¥rKDJ».~~21engIiINMt2ttm1
.101 see

$eal<ld and

=~~=iaJ7!~r;=.mr;u.;

(..1:-" Ed:oIr Budd4y. fl)mw NATO AntIWrt a.c:r1iW)"~ for o.t.rlc. fl{atW'lg and Op.mJoM (~m 1m to 1003),

lit Mda

I

m=;~=!Bl'--An~'8im!lfor~!lJity

93.

c. NATO BUlhorlDflonstar US OfJ'IRl1,/om: In ttl. "w;u on larror-

a

~opetIlllons

u.u::;:rw

89.
How.vor. Ille expeeled mobm••tion or NATO forcos fOt 8 Illltlil_ action In Aflt\8I1Stan
IllMlr materialised. In fact. NATO SUIlI'OO In the ~0lI8l mi6ta<y _
was nedher en lIIJ!omBlie
<:OlUequenCG In the invocation of AItlcIe 5" llOf. as 0lI sou..... have CXlIl!ilmell, whet the US
Government was lool<lnll for.'" Ills pmcisely upon tnls ~ 4ynsmic: 1hat IITf finding reg8ldillg

aw¥UAiMlO

C8lI1plIIgII
8lIa1nsl t8rlOriSm
PrIMdo InCreaIed -..1ty tor US 8Iid tGlllf alllelS fadlitIta on NATO llllTllory
llacld\U selected AlIed _11\ NATO's ..... of mponslblilY llIaIsre redeployed n tuppOf1 '"

81.

66.

.

posed fl'J lMrCriIm IUld. . aaillna \0 ~ tel<en "U"II\Sl
AIlolslltaleS ~ \0 1ncnIaI«l18rn>rlat 1InaIIes a _
of hIIr tuppOf1 tor h

bodIoa. mlating to IIie _

B5

·s..~l ~.Attir:*S". f$lfQMCl3&

__~

"Sto_nl"l!lo_llrNATO~"'_I.l:nl_04.1lUOO~

°ltakah .... ~o«ttMW1M~c.vIdM~
.. l"npClftMIln . . ~oI·daMio"~....
4tftne».
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llrIll\TOWII"'_br... N " " " _ ~ThoUr1lOd

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ASI.... (2OO1) •

ASlJut (2007) 3e

19

95.
In 111. ~ lattar. Mr De VidtS ..~ lI1at 'in plinl:iplll, SuUt cloc:umenta .... ltCllllllde public.
whlchl.cellslnly lheC3$l>fflhey aradUsifie<l.'" Inu_equentfc>lICM4ll'_~CIl mybel1aJf.1
indi¢e;te<!IQ NATO !.ella! Servi<:e•. in a=dance w1111 my au1horisation "" I'SIJtx Rapport."" lhall
would be ~;"4 to U'OOIIhe ~ In 8 o:onIillenlial memer." HOWlMH", Mr De Vldls mplie<1 in
U1e following temlS,

9\1,
Nevarth<ll_ my fuI1IlW analysis 01 the NATO _ l l U _ _ the ~
of" o.:tobBr 2001 __ \lIaIln p<Mng lIlo wftj fOr the u_ Sto* to de.olop Ita mall ~
partnelship,l itllhe <:Qlteld of 1he 'Wei: on lIlrrar', In portlculet, the CIA would elqlIoiI bol/l tlle Illar1kIII
ovettlillnt < : 1 _ a'ld the _
Ul airfields 10 COIT'f out itS dancleslilo cpe!lllIcns tIYoUgllthe
etapaooend onlhetemloly Of ebloed 1\lIlOO00fote!gn atales,

'/ can only b!1t r;artilm that Ih& docisiM $/lee! of the Notth AIIanIic Council dBiItd 4 October
2001 isa dassJlJeddOCUment./ nawtosf8tS /hat In orrJertDha",,_IDNATOds$Siff&l!
_sllon,
person shoVk1/laveBn ~./lI$_rfty_.'"

=

100. The blanket OYlllfllgtlt clelran;es gl8'I1IlClln 1hI1 regant _llIpllCiaIIy lIllJKllcellt In tlle
NATO public lllll!lInWlI. the Qeanlnc:es _
said to IPlllY lD 'mIJ/1My ffIghi3 re/ate(1 fl:J opMI!JtxJ$
.n51 1 _ tu. ~ wtlholll light <If lhe claMJied paIII of the lIUltIaisallcn. Uia
dIllttIdBfI88lion Is

rnlsleadirw-.

NQtwllhslanclmg thI. general rule. whidl I \llldllrt;laIl< 10 be a m_ Qf btoadet Issues
around fJ1ln$parency Within NATO," ttlellt was a fu1her nClewcrtlIy fElll1l.lte cf 1119 <4 O<:totler :1001
rneBS\lt&S to emergo from our CXJmISponde1'lCe will1 NATO Legal SOMCIIS, ~fl'lng his e~er point,
Mr De Vid\$ Slated;
96.

"HOWe1'el, with

iegarr1 to t:eltsin <JecisJcm separata co~

/(J

101. 'Ml!iWy llI~' Is a 1IIlm IllIating t> 1110 Nnr:tion <If 1Ile 1lIghl. not II1lIIypO of air....tl UMCl. In
Jntemation8111'o1atlon laW. lhe IIeIIlI of an all:l8ft II cIetenTlIned by tile flJnclIon it Is perfotmng at any
given till'MOst • and ftigIlII perlemllno 'miliW MctionI WOUld _ I y fIIll Into the eatogory Of

B5

the public i1> general

a/tl macte. T/lIs nIlS also beel' the case fOr some ofl/lf clecfs/on§ taken an 40Ct0be<"200f by',--the NorlIJ AtlanUc COUIlCl'l"'{eIlll'fl8SiS a4d19d)

20

I

'ifl.
Th. dear IndlC!lllon tl<lr8 Is 1hal Ihe public rectx<i" II; not a ~ me<:lion of tlle
meaS\R$ agreed by lhe NATO lillie! and the COI11idGnllillns underpim!119 ttlem. It iI my ~cn,
again c:oofnned by my Asnfirican sources. that tflelll wenl addlllonal COIIlJIonenb to til. NATO
authorlllstiolt <If 4 October ZO01111ot hava mnalned &eCnlt
98.
In the ",un. of my inquiry. I have ma<I8 rep8llllld llIq\l6Ste for lnfonnatlon ~ lhe fI.ll
scope of the NATO authorisalion, speoil\c ll!emefTt$ of Its prudIcaI 1lp!lI1(:8tion. and wIlo1her lis
provisiol'lS remain in force to 1he jJI\lSllllI d!Iy, Regn>tllIbly. NATO flI5elf Ilas been largely ~

to my reque.sls.a

'&/lIe &iraan....
-,
I

.SU!tll a!JT;nllt' ~trj pt9CiSely 1he IypO Of ~ from lhe jUl1sdi<:Ilon Of o1her lltales1llBl 1110
US Gov\Immlllll """I1It 10 ecIa.e for ein:nlft cper8lilg en bel1aIf o1lhe CIA: ~ 118 ~
~ or inspeI;tod by /'Mlign ~ indlIrIng /lOSt SllsIlt~ aufhoI/tIe$. The CIOClVIIntion8I (
0ltl$ltlIin1 on ' _ IlIr\ltat'l' II lIlat lhoy llRI ususlly '/lOt penrl/tt9(f to Il'y 0>'81' or land In Jtw,Vn
sovereil'/ll /1lrritDIy Q/tlc!Ilriss ~ v,jJJl expnl$f auttIoItDtJQn oflhe StaIltccncemeci" tlowewr. willi
:~hl c l _ ' InS...
NATO ~ tl1ls oontlI'llIf1j; CCM.llci be CGIIV8llIerdJy
102.

1110

103. SImIBll)', the prDIIiIIiQn of - . 1 0 «llflaIda for cperllliona . .eInst tenoriIm teQIt8d 1arldng
righla at triUtaIy bases and CllaIll'Illlal¥o¢MIIan Illrliolda fOr a/tatIll cperlllirv on bellalt 011110 CIA
<nlor8NATO_.~
.

~ 1Iln_lIe two ~fotClA cllItlClIMlIne opatll1lapa 10 Milln CfllorUl
_
wilNn the NATO ll1llnIlIM\lll< T1llo firIl wcuIO lie to _
!hal lhe ein;nIl\ uMd In IUdI
opera!ions WIlI8, In thIIt MdIon. ~ as 'lrilitIIlY ftighlo" Clf "atalo llighta". The MCOnd wouI4
~ on !he CltllG whooe
or IllnIInIy was at 1_ halll"lllllP"d III 1M IMnt « lhe
'blaMer NATO outholb8tlons 014 Oc:lllber 2C01.
104,

.p8al

105. It I. lhel8lo<'e all1he mote ptlIlinenl1l? ncIlt IIIat the """'" of 00UI'Ilrt80 'Ot1O "G'eocI1o lhaoe
IllJlholla8llcna !n'lhe conla>I of the US "wllt en t«tot" _ _ welllleyond tlle NATO ITlllll'IboI'
states. In10 e \<leal of as Ill8IIY Il3 <10 COlllbl"," One year _
the NATO eutIlorillilltN, ltle UnIlacl
Sllllo. ( 3 0 _ decIanId: 'Our AJIIe. 1>_ dtiivet8d on that {AtIIdeS] ~ wflIt ~
1J(;/iO/I$, IKiIJIltdvidurlJly IlIId CIfIlI«tIveIy: (J/J fB NATO ~ 1lIId. tile II NATO ~nIs"" JIinv
"t.ea.t» Mt 0. BuqulC:C:hic). seerewycflMl Vana C~n. datldoo.04.2008.1IJietftm..
.
g ..... tt.'t~UrO"Vi~lrQrnMrOl1~.tin: ofth. s.t1tCIRM. PACECorTmttM 0I'l ugdAhnend HumtnRtghtl

~=~~O;;:'~....,.w.~r of24.03..2D0BfrGI'I"l hlro. VidU.. NATOl.Ag~AaMt4r. ~ft~ CJ(2OO(rlO33Q.

dnd13.04.2000.tfihofA:J"notedttlJtNATOit.~.~~tat·NATO~.Ewn~11Itd
n~ft1fllllrsfot~.lTIO&IpaltinftCX:::tt4~bl:Mdont2\e~~pthipl-=mlOt.mduIi.'Itd~,.c:eI'lonl)'

&r Of&1« Qyrp!;r'"-9I. CW)' \.l',IfMoum, bOIflft or oqJ~ that nquira It b' bfBl:bJ ~TO pwpocf. mly haY'f
.a:eu to It .. NATO mbl'l'l'Q.XJn marta4 M\ thir. rNnM( 1$ MjliCt 10 rf~". WI agrMln'lfflt trwn b ~ atkt 1UtJJtd1O
~ f4td

reco~ sl:~~.

tw .... ~.- ... IiI1I"'l'r;:Q~~ 0ftct0r. AAToOFJol Gf.$tcw!ty~1DJeccb

"8et.,.Y.... ~0F*\bl\11.~•..,..r.o&I'!2,att&1.
" TN Vft\icII CClm\'lk.1b'l
Iha·• • v-anI nh....
'ilIICI'aW
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. . cae. ~ WloIIIllIbey
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udvIMIlttflJ»staltI,.,
_
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."JaW.
_ _ .......
p. 30. t 12. .MI:w)o""'
- - ..... 4.flned 111"·s..IlI.V_
NATO AI'.- h . . _III . .
1Owftf~

~

._to

~ cann.aI

M

0pItlI00.11~_,at

1:;.... y_~_",'00.200s,_,at.~

~ F(:I1InIiiI\t ~ P$\* taTO ~f9C)' &t\d M«:tity of ~ r-vtn..M 411\1tg1tfft ~d.cn ttaMpv.nc:y II'l \llMnl. I

.. _
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11M<... _ " ita v...... _ " " " , , " I I ,
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at

~tohllStttttl)113.D4.'2OOlS

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_41. at,. 112: tIIa_·_tlr";" __ P'""'*'Gw ..
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bfQuM Ur at Vir& ,~Urit 'in.. "', aut qveationli -II \IMW .(;QNlldInGcm ~ II Ol.d 8&dlut~ J 'MJ
COl\tta you abou1 tMu Iuues". 0" 71.03.:JJJIJ11 ~ 10 Mr mil' 4_ Hllop Sdl.tlftr. SecfttaI)'<Ge.rwal ~NATO. ~nZI~
Il'l~

d.~C1~tflooutstllrt4H'laquaGonf.

JM~ywt1OtK::tlYtWrf"'poI'Jbtlllmtlllbr.

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.
.. R.;rdlb~. NATO ltMrru * n IIrg~ f,lr.t~.. tQ 04# ~t!tt4 ~ fot tllbmdon R#.~ ~ JA1'9OptI of
Vl.. ~.-bofl. tltmantJ; ofa pra:ti:::sl~;.1cI:5q"".ndwhtQl.4Tb ~1"tfIW\'Iln1clrceto~pmenl city. Wt'M1tt
Hrtl IlW $Opuate llms .Of corrnpOnd8not to W 0. V11ttr.; ~ hlf'l Mt ~"d. Hud d Ulc 64ortttrltt,. PACE
eo_ on loill _
.rod HIman Righ1s l/OlfJ\ll) d _ 2'.""-:>0<11 'M ""04.2006; ...... of 27... .2OOll 11II4
OP.11.2000: ~ fall vt.co.11.2C'J&. tIlt*ptofWhk:fl""Ucco8r'lMd ~ .~.pIloM ~"W!th NtOt:WiIrl' de. 'On

_....,...oIlho....-.....""".. . __

~

t...." (~rd Lht ~ 01 tht catla$:tn ~ Of! hnsP&ftney ....... ~ Atudalr Rollfl't$. ..,WormIttw>. ~'­
trtidN eWI btIlound.t w.o.:wombat1J\f!IIltnpd) html
-lh, qrlf putilo I'KOfd of !:he' 4102001 ~ 4J trlt NorU'l AItnUo e"WlQllJ h 8tGnnt 10 ttl. Preu bJ AATO
s.c:r~G.noral.'-Qf4Robatfcn.4.102OD1 ....,nnott •. MrOtV",,~.. ~tJflNl~tomNNATO

~

Vlssctl.,.GtMtaJ~ritrtotiNC~1ofltl.~l'Il1tl~&.D2:2oaz(~ln~~k'I~RobNtI.

·E!lIInilItlg.>Ji·"",··w.To"·~oAral_bo>lpok1aMltwoe".._oI_llt<loq'.Como'_Lew
Jcume:l. 36 2 (NlNetrbeI'2CJ03J: 32Q-36D. d pqe9-.ih. ~

...........
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oIollllo_.tVllJ_"'VHAlO·"-·I"_"'_I_-"s.tgolIa.~..0r4'111o_~~oI_.N.lIf

"""_~oI11l1C_"Eflnlpo.

UNCLASSIFIED
L0335

UNCLASSIFIED

21

r-pro_ bliltlket overtright tifJIJ/Q,
~lI>/t:$ment

"""""per.>tioIl.-

po1t$lbalJS$ lllXeSS, refuelling

._Clt,

A$fJ... ~38

22

ABI""'(2CI01) 30

come - . 1I io aesy to IlI'Illilnl!anc WIly en lns'.lt!AIon

BllrJ I/lcIIla$IJd law-

0( _

agency WlSlmg to carry OUI

d~ 0f'lll'I'Ii<'n0-~ opt fDl>rt>g!hom t.ndor1llo pRlloaiorlo 01 U. WlTO

1 to.

rJ. The wid", NATO qslom ""dtho "waron lemH"

(n ~on

I:D Its: own Nles, NATO 'mist:' !bet """

mo<Iol.

rrvtM! pmtecflnvdpum eet iC!Z'z)aD1UJon

exi!l1~ 1M MllI11llflIfiP Ac\iCIl PIIII 011999 ~ 1Ilo NATO"asplmnls'~ COIIllriU In Cenll\ll and EasIem E1nlpot -10 lntlDd1Ice ":sutIIcIfJnt ~ and

100. Asido from tho spodIic sulharisotions aolllilod _ , 1h6 wide, NATO sY3l8m CQll\prl51lS
funller lmponan1 olements that have be<ln de\l8lop«l ... pert or lhll posl-9111 lramewOl1< lor CIA
daMo.tine opembQC\s - ltleIucfng lila HiglrVllluo O\Iteitlee Programme. I inlend 10 6lIlll'l11nll !he...
elilrnetlts in !he 1oI1OWi119 section as they have been applied to Gl'*ffic oountri... with wM:h the Unite<!
States h", agreed bUat8tlll arrangoments in lIlB coor.oa oIlhe "wllr on tarrc(. For nrNI it ou1li<:m to
a<:lcnowle<lga tho gonerlll NATO mutli!alllllli treaUas 0( pcIiC;GJ on whiclllhosa ermnge'nllnlS 81'1I
based.

~$Ioensltlll the _Iffy of Ihe most tItJIlsiIMI infcmIa1ion a.J laid dOwn IfI /lie NATO set:lWy

poIJt;y.... lJldlllld OOIMlBnlll\In /lave ~~ IlIiNd ~ _111$ otrI!llIenIru\la 00_ MCI1lCY
lhal _
<XlWlll1iIs lIlMt inlrD<b:Ielt as partof1helf a:cassicnlo NAW'-encl. PEII1IculattJ. "wIIeIMr
NATO's l8qU1_s _ IJIldU/( bIastJd ~ /nlnspIlI8Ilcy £Uld/1JIted tr1wIttfI ~ to ""
unw"mmted~."'It-ml'Illl1nllhlllsucn. ooanfty ot Wcrmetlcnrllglme NtodIl1$ ~

01 tile CIA.

;07.
filS'is lI1e sy5!<lll1 01 NATO "SQW ($lJllU$ Of FM:8$ Agreel'nQota). which dellne "'" lagal
5!8tus' or one state'. armed / . . - 0/1 lhe laJTilory Of anotIwor $\lIlo. The gflII<I11lI r\llas of suoll
relationships am set out in the mu!lll1ll8l'lll SOFA lor ell NATO~ "\he ~siOl\$ oIwt1ic11also
app!ylo 'aspirllnr $\alBS ~ lhelr partltipalion In lhe"Pann8lOlllP Ior~.

lOB. A slata does I10l abandon Its SOVereignty wl10n ~ signs a SOFA; on 1M COl'Itrery. SOFAa
usually rolJ&cl dilIlWBIlI sets Cf legal rights lIl1d IGsponsibfiliai !hal _
for bClltllhe SllI'ldll\! stllt8
and tha hOst state.- Tl>8 majO<'i1y 01 SOFAa are egr800 0Il1lle lliIalarai level llOd are SCImOtitTles
complemented by
more finite d6fenoe ~ tnat C<NfII' /QRIIgn /an:los statlonea at
paz1iClIaT bases 0( fadlill.es. S ......11lI CoE m<lmber stllt8S /lave ad<nawledgod tlle lll'Plicabll~ or
~~~~a agrB8llllll1lS 10 their l'IlIa1iOllships wilh the Uniled SlstM In the eontoxt IIIlhe "wer en

Iulthe,.

109.
M oddlUonai relevant element o1lha wider NATO syslem is I1s ncrecy and .ecllJ1lyoOf.
Inlormollon regime. Th& NATO Searlty Policy" aid I1s wppoJtlng Dftctive on lhe SllCUrily 01
IlIfo<lTlllllon'" are emong !he most formi<lable barmn 10 di8dDB\.I1l oIlnIormatiorl thel one miglll over
"SHVS ~ofS~'"NATO; eo.&n~tothliWaron T.~'. ~Ill:t StIMtv1'31.10.2002.lVdIbIe at
Mp'8mNt$Elto qoytpteyrb1stfIloCS17,Mm tMJ$t.a. withh d . Q1~ authcNllt\onJ, us $KtIear)' of$$ CCllItI PCMtllll..,.,.
I'PllCUlI rnllltcn 01'-.1 1M NATO MJiom. mMJltg ~C/I'JIWI4lK11S1f ew AnIo. 0: ~ r:o put ~ ~ tIad
olMrlhinFthllthftl' pIOW/f ~hlt1plultoour.flT'~·&u US ~of8tt., "CoIn P<MdHoktf .... Il&AVISabi1Iy~
~TO
~
Genaral
a.crp
RGbt1tlOf\
1o..1Q..2OO1,
mfat'f
...

.

' .

111. FlnIliIy. willi regan1 to llle parIIcWlr WJP8 01 my il1q<.Vy, ilia spt to pclnt 0IIl1llal NATO AlIlea
and P8I1nBnIIlav& also _pod \I!lItous Iom1I or ~peratIcln In 1Ilo I88ltns 0I}Jr Defllnoll and}Jr
TraI'lic M8/lllll8lIMlI1l'"lneYltsl:ly _
k'itiallYn hIMJ <lcVlIIoped I1lIW cilnensionI and ~exities In
1Ilo wald:l of eM! and rrilll8Iy 8I'Iation. some of WlIICIl msry noI yel be JllIlP'l'lY ~aled and may
pem'Ot .nllWfrJ dande!lllne cpntiOM Winll eitcI'llft to past "lI1der t/lB lIldllr: In 1Ilo cone ot
8l1IJIylling my dB!lll>aSe ot lllIQllft 1IlCMlmeI1IS, t IllM Illso noWCIlhal NATO hal Il$IllIlIl#lOd • coopem1iorl wlth ~ Mllcllllims at "rJtMIop/llfI ci'&lIlJf#Bty 011 tmlffl; ~ In the light of
lhtJoowS«JlJ/ffyenvfrrJtlfMlll...T1

n.

BI1II1ata/ lIn'lI/I(lIIIlI

.. S«:urfntl_-.iaWllll cwlIIiIl ~ loltOat"black ~forHllDf
112. Despr.e the ~ of 1he llUtitalerBI NATO /i1ln-'t In <n8ling 1Ilo llrOalI euIl1oI1allllCl
for US al~.cemllllm op4llllllons. tlia ilTIpOItant 10 art¢aIlIG 1hallt.- Ioly ~ for CIA
clande3lIne cpntiona In ~ ~ Na.IIld on allll*rallwll.
113.

~

co US _

.. lllldI blJa!Ilrai ~ (R!fllmIClto elmply lIS 'bIIallnIo'} llllIal

.mer many dff1ln'lnltormalnElWJ)eelOl1ll. Fcr~ &It/lB lower end ot1henange bila!wpJ'.QIl1
1tls1itu18 lid hoc c:oilebonlllon an 8 llrDe 0ll«llIl0n to C8lll\I'8. delaln cr
<:8S8$

t\mrhlri"!mllQqm c;pnmW4SCRfPISKU '0t1Ws616Jt;mt
or F.mc.. A;rMtt1eM (~A) ttf 10.OO.105t••~ betwMn lie Pwzti.. to I:l4 NMh A.~ Trtlty
Rc;t.r6lng'll9 $fab.l. oflhf{r,:btC:lI..•• avabbf. at htlV"JMww.natDJn!ldooJA?t*tdlb$lO§1iA.{rr!).
.. $H NATO pf:I'tN:nflij:t br Puce SOI=A ~PIfl..SOFA) c11*" ..~ .tnlX\g b StU PvtiM tD fI, NoJth AI:ian1i::
Truly .nd 1M . r Statu ptttSd~
Plmttlh'p fat P.c. ~WtI.o 0. Sbbs ~ tbW FlXCIMo', ....dlbltilt
Mo=/!ltwtw Alp "*'~f#b:tlh?5Q6'9J~ It b ~to.Mlf.1hlt. $IlloIolCc;am.lAb foR:ot ~ 1m- thlI FP..$QFA ....
an!&<IlIOnalCIr1u to1t. P.rtMtlh~ l'orP",1;:I' (PlP)1hataN I'IQt)'ttIMmbottaefNA.l'Oto ~~tiQtl so-aJ«f·S()fA

II Soe NATO stJtut

n m.

!Ml~frwltals·'I\'Itf)NATO~r~$gn'lonnlO"'P1P¥W!~al:~ktJIl!bifiHtl:!rthtm.

• Sa.tMVeniDI Conmlu:lonOpifWorl, 17.03..t00fJ.MJlntlfM ~ dH 108anc1107. For_ ~ ~ ~.... motM iV
N.two~ qf 1~,ptr'llJ\ttltElo'4leRa (Itl. funlS~ot&IR1;ht1. 'Th. tiun'lM: Ri;N:I R.J9Cll1ltbIWK cfUIII Ell N«I'Ibtt 8tt* ilrt 'Olot

,

~m=!lti=~kt:m~~~~~ sw.a '*"',.~ tu NATO, SOFA- Of d.rtftce
tIooSOcnWy_I.rlh._.. Ev!o\l......

_oI"'.nqI>fIy

~_~lh<l\oIJM.. Slli... '"_lopIl....
I,IMStl ~ 5'2 f(;HR. For wpin 01_1 mmv.r &.I'ta' ~pIiIl endI thl sa. r'POrt on .~;:t. ~)5, ... 1M
s"¢~ ~LIe 11 htfpltW.m1iW~Q&O~
$7trtil;c,lw, OeIrnMy, ttJ.. ~ Pltland ami

en

R.omIm. tnlIU referanc:t to MdI 7 d b fiATQ 4QfA as. pttMtiiln ~ ~mtn.*."~1\dldloSbn 1:/1I., ~
fzJttU aplr:l~ 4tl m.ir ten1"..ont.l. Atfk:M, 7 of lhti ~aw.a HATO t;:OFA ~ '"The ~u '01 the rtalmg StItt
$hilI h ...... lti.. rl$lhllO CXt«:tM 4b:t;lJAw. f,wdiCSlOn 4'N rnlll'Ibm.«_ ~ Of cMKn ~ ~ tI'.U~.,.~ ¥riUt
tIl$p-RC( 10 ortenOlls, ~g olfmt:n rolr.ad 10 "'. . .~ or ttl.. $I:ttlt, pt,ll"~ ."" . . .." llUt nOlll)'''. taw ~ the
HmSinv SlIte.'
10 NATal CO"l'«'!'Ieft$Ne s.(:l.l~ p~rq wn moomf4 tnrt u~ trt01l;tla FW'JAmtntIi RrriIw by 1M NATO s.curtJ'
Cem.'7lt:d. {NSC). wl)et\(Q~d ir\ -anr2002. Th. poIq" t.:tw9WJtain"lntl!J'od«:l.lmMtI.,~by'llll
Hcrth ~

~ ellllrtd WO ~ M \1.OI$.2l302. corrttltlt eM ~lab'l NIU on d:auIaton,
t\~.-nd pm~~ CJ1 stMllvt Wol'tTM5Qn. u wt1" N1n In ellattahml1l'l Ofmnl.etItII to tl!'TO~ All'" IoN!
till... rt~g to NATO p.t"J.ontlK C-U(2OO2}4111 MI re1eUtd' on 01.01.:2005 b't I'tt Hwagtriln Na'tfonU ~
l'wWo," of ntotrnaI»n rtCWN't bytN Hu~ ¢MI LlHtUh!Jnl«l (~=Jl~M QI
w.!t\ ttl, RapplUteUr. c-M(2002}ffls h.~ mtrr_d to •• ~TO, S6ad1 widWn Ole Nomt ....nlc 1NJ1..ty ~n,

att,. docvme:'lr1, CoWa0Q2)49.

&Ipe-tU'rtIlMlt1CIU, I'1AponHto _
11'.~.

.

~ t;A ~•• Oowmwlt ~

oecon4 RniIiort. illIU«l

~=~~~~:·~:.=-:;::..%.u::u=~~~:th~=::

ACI3S-CY.2D02-R.E'V2
G<.~'.

'II.

tMreiMftM f~

tc.

u 4liA,l'O ~ ~ .

Dncw.

on d'te 8ecwty

ot

fl'tQnnIOan,

~

_lho_<l...

_1_",a)'lOCUtOUIWsnllr" .. . . . - _ "'"

'A't.~"'Z:::!£tTO,_
?l""1~"'''~TO _II>

CO&1l'lc:tt:~9.~~l1tlJNadltAhMr:Tr • .,.0I9&I\bati0n(NA.TOr.tIlldc..u~"ProtIIm'll ..~
foJ t-lATO CMJ end Mtiaty Wi", iWpIoyI!d NATO Fqn:n &l1d 1nr.I~('Il (l\a.Nb) .~ TtlTCrirt Ttruts', "n\t &Ie 01

n NA.TO:8lm1ritJ~. 'Or«tlYt on ~

~::~~=t=".;;t::.:y":::"-=llf~a:::·.=.~~_
..
.... d......
e.na.r""_""_-.

_1

~_

.."'"

_ _.. ot

.... 1IloR\ll>l .. _·.E!It~~_,(I'aII_
-.

""'"

.....

pt~"~'i=..dl= PIar'I
~::="==oI;;:=='==

T_

.,..

Zl.II.2OO2,

..

T~ 2$,~

•

__ o-.._Hur_"Al>u"""'l"-'

.... IMMMY R,pad'2DtJlS., aqnfll:lbl:fl,atp. )7.1'112. For an IJtI!ytlti ofttUI cueblMd ........... ~bIIdIr
aollI'CM In e. CIA" Me . . r-1l II1tdt ~ ...... COlrI.. ~. GO ~, MM:ft 21#1, I't'IIINt III
nlllt

_'/I
_
_
e.1Il1"ll......
_ oI _$
_'
: l . _ l G.. 'UFor _ _ ofWO _ _ .. _VU

llltMwty~2I:C$.

ftfn".::=v

_I_ot

" _ " '_ _

\l'lf:7~~lbo

"_"1l1o~

. ·~

to

~

ccnlUMVItClAedMfi.11A'E1/IfJ;M.·25.b5.2«JB.1WQalH.t:

_ _ -8lSI.Il-_

_ ........,.-__ -......l»'
,.;"lM_,........ __

__-lIot"""""'.....:llIIl,_-.. .

.. _....t

UNCLASSIFIED

of_Io·.al._
lholJllK-\Ill!M ..

...-~l'P-2lI

C _

.. SO... 11$ .. 1W.

-.r-

L0336

UNCLASSIFIED

24

AJS/,ur(2OQ7) 311

AJS/,Jur(20Q7) S4

23

B5
114.

In 11\$ mill<lle 01 f/1iSIll1l9'" bi]Jllllllll agrosmonts

~

1:22.
In allalt, we ...acl
IlI'1d ~, olcn9>M1l\

pursuanllO lh8 lmI!lllat«1l1 NATO

~0Ck. and in cont'om'ity with NATO$fiiiiij11Jli,riive dhGlitRdStlJPUlbd elements Of friielti;enoe
clHlperaUOll. Allemawely they haw granted 'Qvi!i8r/' ~n1s - a pMls& often U!Ied IooMly for

l/1Q$G opemting on behalf of tha CIA - lila $/lI1la privilag... and pasmIssIons U1al woolcl normally be
reserve<! fOr members
tho 1TJJ1italy ~. Romania's 'SOFA $lIpplamenlal' IIgnlelrnIlI1 wlUl lhe
United Slat~ 0lI 31 <>aober 2001, analysed later in thI$
"l'P"S" to be II goad ~& of
such a m;ddle-la~ga ·bilatenll". " also demonstrales Che pojonliaf for IlIlI!nlnhip and c:o-cperalIon to
imenslly CHer 8 period 01 ~ral y<>at8.

or

b.

_en.

115. The blatenlls at 1110101' or thI$ tange ure dllSSitiecl. highl.y guar<led rnanda\9s tot "d00lf' forms
or co-opetllUon truJl alf«d - ter exsmp!.. - "ir1trlIstluclu';"ma!ellaI ~ and I Qr "operotional
SllQJlily" 10 111& CIA's cove!l prograrnmo$. ThIs higIHJnd <:aleQOIY has bean d88<:ribed to us as IIl8
intelllgertQe se<lor "'luivalent 01 .I'oos:t nation" dor...... _ _ - ~ 00It Dlunl:y Is
ccnducling opemUon3 It psrc;eiv... as being vilal to Its C1iIn naUonaI '1lQJri!y on another countIy's

J..------------'

__ lllsoalplay_

__

n..VIIIINSCI/IN·t;hDlelJof~

124. In _
of boll> palillCli Mel ~ ""'1SlQtnIticI1i. aaY8l'8IlIOlI'Dllo conl\tn>od Ihal mucI1
of lh8 Easlalll EIltOl*lIl "IlIon" wei ccnal_"<lIJ\ 01 boI.Rl*' fer the CIA In ~aling 8iteo for
Its CO\'IlFl HVO progllIlM1Il. A ~ CIA 0Ifi0lll' Ih8l\ld thefCllowingenalysiswilllllS:
~111 B

t« of fho$e COllnI1iBS, /II6I'It Is stIi1 e mIndaet ~ duting I1Je Cold Wllr lhBl WI> _

h8Y8

to

~ most

dlBngeO\llltlllglJ(.
117. The CIA brol<_d "opetating agroemBnIs" willi 1118 Govommenlls of P<lfancl and Romenia to
hold ils Hig1l-VaJus Detainees (HVOs) In _
dellltl!ltJn fIldliIies on their ",spoctivB. terrifolies.
. PoIatld and Romanla .~ to pttMde UIe pt8IIlIsea In which U- fadlItilll wenl ...labn.heeI. 01..
nighast degrees oj physical SO<tlrily and sect8CY. and slllBdtaSl gUlltllntees 01 non-irllerfsrencs.

CQii!illons in bolllAfpoistatimd Iraq.

spoken about Ole High-Value Detaineo PlQgl8lllIllO wlth IIlllltiple well·
at sawral ~llS. inducing the Urilod
Slates, 1'¢Iat\d llIld ROl'lIIlnio. Several of these perin occupied poaitiOl'\$ af direclll'll'DMlmenlln
and! r::r ~ OVet lI'MI negOtialiCln$ I!lal lad to lhasa blatlll1ll snangsm_ bIllng llgI'tMld ~
several ar 11lam have "'-ledge a1 cl_ levels 01 tile ~ons of tile HVD P/QQl'8lI'1lTlG In

B5

I

~~~~.,:::t'~

=j~~~~~wlIhii~PlllIInd~~lDij<lel8ln~~CIA§!HlgI\'~~V81~Il8~~~~~
"
i'

126.

120.

w.

Opelatlon Endlmg ~.. _ lsIIlr asunJng COl1lJ'(lI 01 cne of lIl8 "ZllnGs' d alIled corlWl rn
Iraq. An ongoing pmcIIIII 01 ~ aM IIIflllm of ilieU'1Q8llClI_ 10 decIaIlad pr!ln;lnly III
~flll the _18I'tIcN of lIO'ClIlled"corMUUt 1*m8nlI".

The
.... Ptli.t1

E<J'l>P8.

w.

end lfI/It d>s;n't

IU8lllgIc tne:rInliVe tied In wlth 118 NATO fratmwoI1<

we l\4Y8

I am corn.oIno:ed lhat these jndivldlllllt who were croWl Sl1l1n hlgi'lly-plllcacl pO$llona witllIn tlle
system spo~. tlle truth to us_ This was not alway. !limply ll<lca_Uley 'AlIued InM. In most cases
111'»' (Jid So because. 10 paraptJ'a5e one hig!I-nlMIOng pollticlan
lnlotYi~ they did not went lh8
truth to <:ome out on .0tllGb0dy $1$8'$ tenn•.

~

I tIIInk PoIaIlIi 1$ t/If1 main axcep/kln; ... 11II"" an oxtnIotrInaty ~ with PIiIIJld. My
axpetfeIIoa fs t1Iat If the Potar0ll/'l1lelp u~ they will. ~ it'~ ~ cr~, «
em aI/III$. t ~ If t1>Imlls • J{J«Iel tfli4lfoMhlp ~ of
J1le 'lQclr~'" QI'OUP,Ihe7Ii!lft118 AmtttIcaJts IItlI1I/lIl PoIf».'

placed iOUIl»$ in lila QOII8Il1tllllntS atld intalIlgeoce $GtYiCIlS

121.

of the Ea:;t JalI'Op8l!ll ~ MI KGB

~ or(j~- rtl'YlW

118.
We have I1Cl sean tile text ar III1Y spodl!c lI9...rooment lhIIll'llf<Q to lI'MI holding at Higr.-Vlllue
DetaInees bi PcJtaiid Ii kbft13ttll1. MaM tt Is pnidiCiIY ll'iiPO&Sitxi to lay UjG3 CII tiN c:Ia$SfI'Ied
doetDliQ'lO III "".,UGn 81 ,ood l!le p<a<:ise agIll8d IBIl;llll9<l because at \he tfQCU8 Of UIe aoaaUyo(l/.
infcm1BIion 1B9!1I1G. !lset/kept oecrn~ bywhlch \ha$8 ffi1lllll1alll are;rotecl8d.

The... pH""'" $pok& t<> U$ UPQll s!tiel ....'"'""" of QOt1fidentialtj', - . - t to ~ . . .
the terms of tile Special llU1l101isa1ion Il'\Iceivacl f!llm my Qlmnit!ee Iaal year." For t1i. _ , ln lI'MI
intfmS1S of proteCting my scutC8S and pI1IW'Ilflll Che In'.sgity of my Investigations. I will not divulge ,
illdtwdual names. Yet j can stale unaml;ligUCllSly Ulellllelr tas1imol1es -insofar as !hay ecrRlboral&
at\d vaJidole 0I'l8 another- count •• aocllble. plausible an<l8Ulhorila1ive.

not

_ys an f/Ifir side. l11M>'s e ceIt8in taildont;y to baltl# tilen opan to 0Uf1CMl1lC8S. You

116.
l1'.e classiliad 'hosl naUon" armngements med8 to 8CCOfI1lIlClda1 CIA"llIaCl< silus" In C<u1dl
of E<Jrope nwmller SlaleS hlIl inl<llhelast of I/>e$G categori1l$.
.

Howev....

s-

-.. form d"tntollgonco W<ri<',lo"'" _in our dla<:oJsIfona wilh

123. Ills inlelMllng to nate tllat lI'MI Unlbld $!a_ dloIe, fn 1118 """ of I'IlIand IIll\f Romania. III
form 8p8dBl pllrtnenNpt VIitlI CQUllbies _ _ -..tcally ~ . llIllOllllnll fnlm dItIIlU1
l1'8nsl1ionlll psriods In lIlaIr tislr:fy, W clepandent on Amilllt:lIn IlJPllM for Cheir IlnWIglc
cleYelopmant
•

lerntory.

119.

~ _ 0 1 _ _ In -.cI. RCtl'IIi>Ia,1I8 uliled

_~.lhll"~oIlrulh"

~ lICCDRlsnC:e willi thIJ Clp8I8tJOlIal 8ITlIllIl8Il'If deSCl1llId lNlItlW,
.W IloUJed wlIat thIJ
'. ColI1lerlllmlrIam centre CVllIldanld It& 'mooll SIlIl'i1lw tM:lt," 8
eategoly whiCh IrxIudod lI8voral of lh8 ItRlI1 whole lnJnSfer to Guan!enamo Bay Wllll IIIlI\Ol.IlCOd by
I'nl8Idant BuSl'l on 6 Septambar2000.
•

127. we noc:UYad ~-Mch """'" tram more lIIllI'I one _ - o f e1plll """",,,"'Hlt'A1
W!!9 '«Pre I!ilkI In pPIlllld bcttwftrn 2!W IlfQ ~_ Spsdllc:all,. our """""" 'Iii IIi&ClA named

POI8ncI BS llIll 'brad< IltIf ..mer.. boll! Abu Zl.tlayd8Il _ IOlIlIld Sheil<h Mohamed {lC3M} were helcl
end quealk:l1ad ~ "enh8nllad Inl8mlgalIon llII:h1Iquea." The Ir1ftllmlIlIlln _
<lboUl elrr\OITOg8lIont has 1a:mad llIll baIllI d heated debaIII m the ~ Sl8leI ancIlh8 wldlIr In!llmaIloNll
(%l(111TUl1ty. 1oacI'ng. In~. aIM-, to N~ polllIc8l ancIleglslatlYe ~ lIllll. In
I<SINscase, ll>theaanlAlano"allOlIl:UllIngJUlIclaI~.

.::..-

"n.. _ _"_b... ClA-.-...lolOo

"'•.....,_Gl... u_ _. _
~=

e.-a... _

-.y

31."",10; TOlIII 2.1,

.. o~Ilnd\WIg_.

~

..._'"'_-_
... t I l d _ "•• "'''. _ _ 4OgtN .. Wol

~t<ln;d

01

~ .... e -

·In.~illon~1htttaoul'Cl
. .. ~CIA~lil:ddWtfllZlitIt,.~
. .. to.dazM.. H\1hnPoJliMInZJ(ll,i,bIt_'MN

~to~~.Ntr!IttOu:..MMI."ptDdlttU$tont"""'~WM~tMn!t§btb
l»M6q:

!:b~~.tIl~.-lqoIy_bllllllo-_o1·­

hin".._"'"_..-'-F.............__ol
ClA
.........,.ilI
v_.
,_llt...._ ..._.,...· _...... T.........,..

-..g..... _'"',..~.......
RR~ ••nc. roth..~n t~ offhe,.,...~1)1Ut. PAC$.C~ ern l.ttItJ.A1f&n lind twmen Ri~ (ASUur)np.m.
afl13.0:l.21Xll'1~No'2OOelJ5).byVlNd'l1f'l.CormittM.uttl.orilltcltrFf/nq:Uitftal:tNtl~tn~en:ad
lJpt)ft !his ....Clwn'$1l::»n. I .n~td h Ia udNInp of 11'1*"1 'Ma'I ~rctM'tn CnnmIa"lorM f'''-'ltle f~ Copin Gf 1:tWt
corrt:IpoM..oe. ... wd ." 1N .~14
arw MJd on tit wth tbt: ~ppoI\Iw. "Jht; ....1.\I...nw _ ~
t:e~ ~ ~,Ch

r h....

fYMP$*

~ R ~ w,n". 1m,lJlUIol.QJy

~Mlp('OY.l'lCI)t...,~ifnol;d«isM.U

ob$lll'Wd ey 11:_ tnm

...ttD~'I~O\l'~.

~ ~

dMcltel """

_ _ ",*", ... . - "_.'" Q q d l y _ -<:0. oM Cl4!op1O'IlI •

e

1"'1.200S, ewb~.t!tp:",.,..,..I)MIryQ!Mt~WW"14"
ns...........
lXIlI!u!afctl

_

t

ft ...

dlo1--.. . .

UlOPJ'
... _ . " ' · _
-cIOCIlJIOIl ....... ......,

_'_ol_."_~Iho~..-_

!rmldu<ing1<Sll.~:"NIIIauQll\,codo

... IlCYO""'IlIilItr ...-",.

.._ - - - ... - i I r O l l l..

UNCLASSIFIED
L0337

- - - - - _ . --_ .. _- --------

.

711._

fJs;t.

1dz..et~I&alIIuDl.IiD. . . h~~t:llet
. . ~J.-~t.::I....

0

5

UNCLASSIF1ED

25

~

128.
For reason> 01 lXllh soa.a1lY and ~lY, lIle CIA <lelermilleel lIlalllle Polish stnInd or the
HVO pr<l\lramme sI10uUl remaln firrJtllllln size. TM 8 "seeoncf El.rcpean slW _ ICIlJl11lIO wI1id'l
the CIA could ttanster lis d.l3ineas wllh 'no major Iogl$lk:aI ovefIl8lA", Rolllllllie. ""eel extllnsMl!y by
United S18l&S forces dutirog 0penI1ic<1 I~ Freedom in elII1y 2OD3. !lad dlatincl be_In lhIs "'1JllItt
as a mernDer 01 1l1e CIA's ~l Centre remllll<ed 8llQUt the localion 01 the proposeel
detention laclfity, 'curguys were fammarwlththe urea',
.

m_o·sJ

me /fl81J In

the partner servIca; /hal means" lOt AnrI jj ~ means /I/o! illtle Rorrlllllil:M an> ~
llleir IIInways implOved, rnlW b4lllaCkS lJ<JiIt 81If1 J19\V military barc1wtlre; tltat means a IoL'

B5

130.

(sri,..

:::s..

a

..-:

""'.

135. More fll'lCltlcal1Y. me deSCIIpli<ln allIl 'oU!.g(-lhMW' _
flldllIy praenlI1he mlmlr
wWch 1ft <>JIlQIll8lIly nlfem>d to lrf UT1ltIHI ~
Fan:es lIS "Tl!ea1er lnlermlllt'll F8cilItiea' - one 1\Olatll, ~e ll8lnlJ tie . ~ ThaaIar
1 _ Facillty," CIA delalneea are ~ to hIM been I'llllcl at faC:IIitiN 1UC!l81 QIvam bOln
beIoIa" SIllSIIIllliI" l1a\Ilng b8enUlillCladtol'llnllltion, Mdla_d8l8nlIonlncmerocl.l'\1!l...
lit

B5

"in-ttl8alor:

~ptS11tIWIIUthoItl1es _ptUeIWJ/OIr,f1I_y btPtJlllntlandRomall/ll

136. To I1MISIthe _
by WIlld'l tIilalIlraI anangemenlS _
put in place for CIA dalonlIons In
Pofarwl erdRoo1al18. welT1U1l trace a lJ8j1lClllly oI~~ WllIl the United SbJIeS lIIol
1lP8i\S 0YIf Sevetal )'lIIlfS. ~ the llmie<la1a pasl-$fl1 periacl. lOtlen Amarica -1dllnlIIYin9 Ita .
kay strlllegIc partn«#ipe for tl1Q 'War <In tenor," llo1Il Poland and Romanla ware III the m1dat cllhelr
own processes ol'mlt8glc IlO8I1gmlel1t'. esgerto teeLnlheirpoailionsas lroclispeosebIe Ill8I'llbalS d'
the NATOAlliance andfllendll d tile LlriUacl StstaI.

ROrnaniawas devagped into .. olle towl1id'l mora delaineeswllAInn:st_only as theHllO

programme expanded. I \IllderSland thai \h!,-Rol1llllltDl1~llllld,-~ .Inc:on>otuted Into the
remme in 2003, allBinelMli "",alaSt
" ,..8 <IOfa,llOOs who wellll1a1d in RDmanoallelonqiid to 8 c:a1il!l<liY 01 HVO. wl\o$e 1tl!Ill'liQEl/108
value had been llSSeSSacl as lower bulln respe<:l of whom the Agency still oonskleAld It wOl'll'lwhile

---~---""131.

Asked to .."Vid8 ll!!!!!!l1 of ~ hald In ~ a senior <>lIicial in lha CIA's
Coo.urtartorrotism Centro, whO was dire<:lly inVlllved in cpenll!ng the programme. SlIi<l:'lDo/< Wlt dotl1
Wlk aboUI umes. okay. ~'v9 fIOI <lliltr/et teIIfP IbBt we MOW foss about. loItl't& ~ an I1IeIf

it>teP[t98nce} vallill wIle1> wel'9 less OOIlJIitl.'

,

~0IlIy at the delaIllI8S broUGht to ROITl8lU~~lI;J 1M ~ extra<:I.lld
~
AItihtdItM.6OO 3:" ',.q. II "iid"~ tiI!!t!i1Cle to

l!Ilage of the Idnda of p1aons opcwatad

137. In the """"'" 01 .. l8ngIhy dlscu$slOn with us Bbout thII ClA'a _
cf paMGt c:a.nlliN in
Eastern Europe, _l'i~ Easlem E\.I'opean poilIlcIlWll~ In the ~ aaid 10 us:

'PcIand end Rotriams; you QlnT Itnaw fIIhy? (It ~...; ~m ~~00lJ/lIlfe$ WIIO
8fd tzs1W Wfl It! b1 da1xL
BIi mpst

132. . Our Sll<Jrces tolCl us t!lIll some Of the larg8l$ In \his '10-" liVO <:8\llg0l)' had in fact beall
identified. and 6O!tIetim8! lMlll epprehended, by a foIllign 1nle/lillellC8 ~ befcnt lIley _
mad<!
.vall~ 10 the CIA. Upon cur 5lIict 8SSUl3108 of emnymily. one CIA Cll$I> offlcer was W11llRgto.
<lasaibe ~mit/l(l dala!l$ of • scenario In wHdl a c!$jnee had _
'Offered 10 ~ Or our fiaisamf at>d
was later 1nlIlsfef!'8d to Romal'lia. The detllillfl(lW8$ Of Af!ll\an natioilllll1j.
"t:
133.
Example~ Of the profile of lllose hall! in Romani. were ~\lded to U$ by two separa\Q
,.American $0lJI'Cll!. We ~tand!h<lt 1he p!OfiJe filil categcries S1JCIl as:
• S$GOdaillSand SUSpec;llld operatives 01'1<8)' TaIiban leaders Iik& MullIlhOI1llll;
torGign fighters $U$pel:llld of havlng petlomlGll 'FllIes fQi' the Talilian in Afghanistan, inc:lu<ling

provisiO<l o1logi$b;
,
leadets of branche$ of suspectacl'$'4'POft I\<llwQI1<l( far the lnlMgencios in Iraq and Afgnanistan;

or

b&C-m a s f

~ttrdV pacWMtem

jl<ll'OUirlg funherinvastigaticns.
r,

The

t1f t!II!!l~~:
. i\ating
from

129.
Our .o~ on both side. of the agrellIllIllll - In Romania and the UnlleG Slst" emphasised the ilnpo<1ance 01 both Il\lSt end lllll\onaI 1 _ as - . . ",derplnning their
""lloUations. Military 8SOislanCa - re1Iecled 5lnoo In the AgrnemenI 01 0e00mI:ler 2ilo5" - 81."
slgnificanliy intluotY;;ed the deciSion to provide tad«liGs end resoorI':8S, as C<IlI Amllrican S(l(SC8
reflecled:
7110 /)jlat"",' "mu>gements wero built on two IhffllP: PM.t:ma! I»!&IiOnstllp$ and
in.e.tlOOll1, It yO<ff mIln Ollltle lI!tlUnc1 have a very rPJd personal tri/aliot1s!lip with

211

AlItJuT(2007)S5

AS/Jllr (20011 ""

Uf)/I)dJJIIBIII:

138. V\llan Amarloa began clIMlIoping lla nllIagy for tIl8 'War 00 _
lIIder 1I1e NATO
!rlltnew<lfl(, F'cfml _
aIn8dy II marnber d the NATO Alliance. whlllJ Romaria WIlIl II NATO
·eapUanr. Of _
CIltldId8la. ThIs cli1lann::e III ~ proyecl to lie or lftlle CCIIlllll<plI1C,
hawaver, IlS bcCtI COU1Il1lIs fOlklwecI nJmoll(ably IlIJjrer patha In I8n'lIs of lI8rTrlonsIl1g lhelr!awl and .
6llVClUI8S willi the NATO frBm8W'Ol1<. ll1e role of tie Unlllld $talas _
auc:lal to the nlf«m
_ I n bo1Il c:out'dl'IN. ~ In _
of 1M Intelllgenc:ll I11I1II_ encl 0VInl~ IlrucIIns
lhet moriIrx lham.

., ~f1I~NAro~InPotand
lag. Polencl becIIme II mamller of NATO on 12 MIIll:h 1m Md 1lla IlUIbt8IlII NATO SOFA
~ enl8lll<llnla l'oro& In Paancl In 2000," !tithe ti¥e )'elIl$ diI'llcIIy ~ lla NATO
IlQ.:Il$sion, PQland Ila1 elgnad 4lMlI1Il nal8WOl1Ily agreamenlI wiIh the UnIted siatas" In thIl Rl8fmI

... '8TlPj""''''''_lD

-F"'~

~""'·~_~F_I

_lIlIo_.. . _..

:..=:,=:.:.:r.:~o.:.=-~~~~.....:...~~~

.....pec;lIld 1 _ of 1em:lrist flldions in the Mickle !:art

_ _.
wllo _ _ ..
__.,............-l*1odfll1_1MY_._

~~:"~':~:=:''':'''C:::-~='::'$.

...-......oy.I _ _ ..

_

~

~

II

~ ~

" J NpOrtIId
,.ar 0fI1'Mt
d
MahAtMI tHiIlIaN.,
cttr.n. MId bnwr 1M. NN:WC.
.........
"Bogran>_""""_2C04
__
....
......- -.. ClAtMtod'tlnlui

.......

·llId<_"_.,,.~"'

Maol)'R~_.,pro_

_
I .... OOl
Whg

lIM

....

_Il.~~

... ~ oI'aw Ftt'pubkl OfPclMtd. ~... g f " RtpUll'lrlotPoilnd~~
_hOd bylho ~ " " . ~ of"-t""" roptdtoMlolo £ZECl<R._17.l1U:101 ~
'_. "
-... III COE _ _ _nil ..- _
li:l ECHR').
_
at
~ ... ..,.,.,. .....r. ~cf,.

tmgf6yw)!cpt.mvrlQSi~l!5N

6OF"1 _ _. _ ...

..

_ofP-

_al*""""'
_of.
. __."_ _

.p. 6...TM PclIb

""'ftfliltl>d_~

.... o f ~ ~ " " " ~.. . . . - _ ......

~

fI*Od

out . .I ~

l"o'l'O
...

Qt&nt:IItI.lMw:fi'tlSI8tD . . ~tful'#:t:r~~O'Y'W.n'4mbwClfb1otMscr~thN'c:tdIIn~ft
1;ta~1'!Wnts &tim ttl. Ml7Ieu' FtIf ttl. 1uC ~,.. end G\Nt ~ r.ldI4 10 :M "cUDllO\li t:tIt ... R.poIWJ
~fDfFf'&ttdomottheP7es.s..·M~SSfOUITntl~bIts"'CS~·....aa.lIlt_1tJp1JWww..rrJpM!tmzmtf9"\,I.

"'For detIl~ dilcus~ efO'llt'~nt ~ Rmaen4lfuS 1M Unitotd~. of~r.
,.f"~uo:lonll.'f.~.ntiltB'IJ·AJ:~ot1h.NATO~bAo~e

II"""

~20G5.

_t.o
__
""oI..y.."'"''IO.OF
'_
.. _
.... Io",.

_

......
oloIftd ..
Few. ~ I'IClOnI Df(~
bIIilt:IttI
rr.'6ft
_JoI'<>u-AJcld
__
"",...

~<I

_.al.. . _

P

UNCLASSIFIED

... _7m.Olill_..
_po<txmonooof_"'4:fJllQ'
o f ... _ _
_ _ .....
of.~

•

Jo_.. _,.ZOfJ1I.

am ~
_ I I " -u.M.e:.a.
, , ,... _
__
~aM

US ~.of . . .

L0338

UNCLASSIFIED

1 'I

of defenc:<l,"' a.mion,"' ex1rlIdilicn" and JUdid81 a:soJolanoe," which plMIlI tI1$
ClHlpenltion bolI>witllin and """"'" tI1$ NATOAilianoe.

~ for a Yf!IY ~

-e,:.

140, Poland told tl"l Council of Europe lhaI. in addllIon III its obligalims undar multi!QlQ!1!l
" has concluded an unspecified numb« Of 'agrae~ !/OVllR"ing ~ foons of a>-opIlf>Ilfcn.
",,"101 we do 1\01 " ' - tI1$ pmcite s<:cpe of thos& agreernenta, tI1$ one lIXllI11'l& glven by II1a PCl!i$ll

authorities - lIlal of "ttam-fmntlor SUl'VIllJlanee' - CXXl!irms lhat In at !e!lSlll(lRle of lha!r 1llamalle
oo~erage!hay I'flllllin d1I'IldIy to the WlllI< of thIIln!sl~1lllfQl UI'ViCes. Wehava blllln . - to oolllln
oopies of PoIancfs '!lilale1llls' wilh lila Ul'lited Stat~ which Ills S/lfllIO aS$\lll'l8 fall uncIar ll'IIs liIlIcl<81.
bacause1hey amdMSified.

PoIand'sClssslftecllntormationAtt. Which 00_ intoforc& InMarclllllll9,-;' pallo! a!alrly
typical apparatus among new NATO ma~'" for <Iealingwill1 sensltlvo inlcrmallcn In 8IXl<l<llanoo
, with Ih& NATO Seo.my Poliey. For 8XlllnPla, Ihal<d, reslJfdive prooeWms lot grantlng or denying
'sllQJlily d8lll'al1OO"" to lntlMdIIal$ ~ to aa:ess c:lsS5ilied jnfamallon wElle c:h8IlanQ6d as
\JllCOlU1iMlonal by the Per\Sh ~uo:Isman.
Howewr tlIes9 jlIQ\IIslOO$ WtKe compu1SOl)' for NATO
mambe/$hlp and - of no smaD Clllnddeoee - wadd llll/lSpIre to be vital to lha proservatlon of sacrecy
around tho operatlons of the CIA's HIIO programma In Pt>/an(j,
141.

/>,

A$lJoJr(ZQ\l7)H

ASlJur (2Q07) H

27

Appl/calilmoftheNATO_ln~

In Ill_ casa of Romani., Ih& ptOCllSSe$ of aooecl"'ll 10 NATO and d_opIng a Ililatenol
_00< willi the United Stat••, under which Ih& CIA could operete on Rcmani"" talriltlly,
proc:ooded almost Somullaneously.
142.

143. _inS looor$O~ tha.u.temtllll ofPtGOident Ion Iliesw""ln .....ponstllOIlle a _
of 11 September 2001 W1l$ Romania'. 'critical llJmlng point" In Ihal Slaleme1ll. Pmsldenl lIlescu
signalled Romania's )nlMlion'to act as.ade ta<;t. member oflha NATOllllianc:e,' Slltlinga dear tone
at .·1ime when lallow f<>nnor t:as\llm-llloc oounttles were til<$WiSe scrambling to demon3ln1t8 their
Icyany 10 DIe united Stales.

28

B5
144, lndeecl. RomeriaCCUdbe oaIdlo OU1dono>-'tnIlllyN/lTO_Itl .... !rlvnIIdIlley
of its <IemclNlr8Ilcns (If "4lP"If. for lila ....... <1\ tarror: ItLb -.12" of 1 9 ~ :<001, IIllI
Romanian Pe1li8man11llMlll.s_'fmnalllll\lllMll' lo ~ ntiiCll'~ IlIllllKl pow:ln
~

_

D

r:~.-1:A_

.

ecope W8S doliIlenIteIy <liIsigned III _ _

aiItnlfl opeIlIIa<I by oron beItalI d tile CIA.

145, FurtharmonIlIla mosllrnpclrWll domealIc ImprlC$llon d tile ROlJIlWllan PaI\IImenl'a ~
for Pmldonl lfieaeu', ~ Itanc:e _ thai, In Ihe pn>eell$, It elIDcll';eIy mand8Iad Ihe
PrulclenI, \lIOIl<ini ltrouQh IU Offloll of NalIona Secully. lo aIlJl NAT().type ~ 8IlCI
bI!ateraJ opet8llonaI ordn wIlIl.,. UnilIId S\ala.

146. In exardIe of thla menda\$, Pr8sldenI llielclu negotllllad and signed vm.t Ihe RomsnilJn
IOUlhOOUa. dllOibe as 8 'SOFA SlIllPillmllO!aC lOO -Ihe ~ l between Roman16 and the lJniled
SW1>$ of AmeIica ~1Ikl Sla!us of US Fclo'als III RQmaNa'" • 01130 0Ctcber 2001. AIcnl1 wIlIl
the multilll\tlnll NATO SOFA. IIliI ~ " sslcl by the RomanilIn IIllhcrldes r;ptllNe/1y to "1elIla
!he jurlodlctlQl, l!lS regal mponsIbIIltielllllld oIhor 84pect1 regelIlIng lhe .taI1lII of one party'. lIIlIIed
fO<C8$ Jl4llSCM8l... and o! ~ d these aIflllld follm I'I1len acting on Ihe olIW party',
tfllTllO<y".'07 In
' - t , lhey ore JsP(KifIt:aIIy on&wlIy BIl\lllI'IOfIl8ll1, Iegtstlllng tar ...
Inc:rease<l size and..:ope d US 80lMIy on RomanI., sou.

-il)'.

147.
lMletI examined wilIllIIiIdsIglll, tile 2001 agreemonI fW8lllI 8 pemiIaaiv. aUltucll'OfI the
part of the Romanllll _ _, twady tow8tll& US mlllIary and quul-mll!laly /lpel1IliOOa en
Romanllln len'itay•• nd In pMia.lIllt tDwanl$1he dons of AmeIlcan ~ peqonneL ThcI 'SOFA
SUppIemanIllI' CI1lllI8d a ~ ~ 01_1 on naUonal tenlUlly","'wl1lctIlt 8I<bIntlecI not only
10 .........,.,.,. of Ihe mDItaly follm' In 11 tclMIIIllonei 1IlIW, tlUl 1110 to "InamIlerf d tile cMllan
. ..
ies"'" and ~se I/IIiO Ii dia8riid bY ltii A/riilriCliil AUUlbI1ll6I tb lllI pan Of thii
~tiOl15Ir1

~

s.o va

,.::';: Wi: !~'i:;A~= :~:::

~,:::r:t:::d ~!ijMlt;

tI1elXlU1lry",1

...

Dopoo1rMcIlof _ _ F... _

of7-OO.2OCl2, _ _

~

..... _ _

r_,

~ &tHrp'!&Nm *"",,*k ~M2M2QM7l1pf'lf!ft!¢jQFTIgtt

:....""'='=~~:.:-~-==.'==:rp.c~·;.;=:.':=
""*""hWl'....
""TO SOFA of 1ll$I,"_- . onIy"_ •__ •jO/OOd NATO :lll.0Uil0C. •
Oft

\iIlII

Crl/rJJlIfJ~. wth totTl\&. 00tltI.1W1~

1007,1RO&: _tw.d

~ fQrce

17.W.tD'iW.11AS
~fPollMto CCl'E.~eaamryGelw/l,I un4,r Mdt 52 ECHR,. &/JI'WnotI .... IIlV.3.
• 6u Cit:tPfec1Ir1Iom146'GtI Ac:f. PtI2hfI JoumaJ ~f lawf. No. n. 111m $$; 0fJtPt CVlII*' htn ths KtWtIJd Foul'MSdan tDr
til.IMI1'I RIiMt .m 1M Hlhlr.:d ComrriDll_ HuI'l'llUt ft/ghtlln Potand.

· s.. ReSP(lfl"

10000OnChapoll1\ .... Alt~.Rokrb.·NA.TO.S4r:taCfIll1dItMRiQhttDJI\~·.~tlGt:t6&

,nForc:ortrTlOnbryanlNlttutf:tde.raJl<:*~by.JO<;tJjD1IJtiaht.
... ~\\~tJ..aplf't¥lWlI. .

Z ~ 'lio N4TO" {~ll'lQ d .. 11II'JtlIaM VHillg to know.

Our~

and NATO),ll\

,4cMMda:"
No. 1.

o.zera~,

&-10.D1,lmg.
1:= SWll'lllmaUoo.1 tiI~lf'JuF.dltWtion for Hvrr-n R~, H1I:NttFJfl:ablM OSCEfftIttjQn: RIIpolt ax:o(EftI)/,Of1UWJ,

"AMUSlA:tpOltanPD~.I:.Vtil&.'th=1P·!/!lMo\t'i1Jf.N;SlO1"@s:wncnllk$ot;.IllrMl:81YCII"Q'1')o:!c
kN&f ;4*llM
I.tI

mp• •

s.. ~. N....... Allen¢y. ~R:otnanIIn PlUldUll A'altf c.ono.me T~. ~-. Rornln" 11.OQ..2lXlt: ~
111. twnarist .u.e:b on trw tJaA", 11
lattr. Itl • ~ 4UmQ JImid....

,...r

~1lb1t ItS p..-t of • CI'~ <tnw.d ~TO A19l1ant t~ -c:G'Id~
~IJ) ~nc!pnm!jQ!\bfm1" J~ lIWf •

bU'p"JJtitcfArpvcmsktftOtMl

aUlh·.W:CtD~It~23,'1,2B02,P,..id"llincudlda'tdct..ethet.tnItG
_ _ 'MROfN.""·~c:arp.osl!ioM

ontMwaytoa44"hlM~
...t~.I~tMth~ClOlft'ft,Inlt)'l:lI~~~dltutd1lam>dlrn.-·

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.IS...., _InFortw-AUof_IIKI _ _ ,--dlho.-_IltFortw ... - " "

...

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mIJIlY
~~"";'=~~"==,::=:~~:~~=::.I'y:'-""IoitIlX1".,,",,IUS

_lA._
._01

...... R~8CFAa,w........ iG.tO.2G1i1 1V(ft'** 1ot.tI.Mi:Ia D('2:).·
l·Il"undHr~tNe;~""'INd4E""'~",,**,thIIC
. . . . . . ipId5a;~IIlI''''''''''''
ofUll-fo;lltoAd
... _tho·opodol ....... OI_u·.....

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ue _ _
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.

~ 111lMcflll:~on&tldWlrq't1. Sand 14.0t 100&; ..-.tIrwd irrtofarctl14.G1.1we. TlA8.
• See £xh6SroJ') Tf'Mi)' ll~ 1M lJnlfMJ~' ~ ~ RJlp.JbIk d Polf4d, ~ 'II ~ 1o..07.1fOe.. 4lQJ'1:d

t:'s:=..;::;,~~~-::.no:-~~u..st-. ~u.s Fowe.tt~

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IlQnodol~DC •• !O.1Q.21lO1:_lnlo_ ... ,o.llI.2OO2. TWI _ _ .... ·RomonlonIa'A
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....
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L0339

UNCLASSIFIED

IoNJus (2(101) 36

29

1411. It Is my candU$ion 111m under Il1e OCI<lbeT2~ l>ll8tenlI ~ along wi1l1 ....y ~onaI
C!'I$Siliad 8Mex<la agJeod .,lllat Urn" or subseqUently, pel'$QMel broUl1U inti> Il1e """"by...,.jar th&
b8nnEIT of Il1e U1\ilad SlaleS mililaty h.... In pllIctl~ openoted on Romard.n lelTi101Y wltII

A$/Jw (2007] 3G

that
"fOllows
almi!al'
aue:hloa"NolllNo.
~ ~back
to atl0Gt2OO3".Ut tndeIld, I am - . , _01 an
_
_
_
'1IitZ'. _In<i_1I1attheInllalllll
In AftlhanlslM -In ~

The Ronl!WlIen 8UlhOlitiat hllY8 incllCtdIld III US

15S.

149.

In litis contel<l ilisimportanllO CO/l$lclel' SITMlC1l reoent'llCal3S agreement" _sen Romania

with tho IIdiYilIIIS of US
-0

~r otnet

sUCh puposes

as 11I8 f*bii or lllillf OOSignatet;l

Sljf<lr."·

~n

liiiiiSi1...
iiDJ:lalos
6Uth0058$ may
:-

lIfO"ft~

lorms 01 permisSiOnS. ell US G<:>vemment 1lirl:laIl8lllf VIlI1lclss
from in$poc:Ucn.' InJ
addiUon, an epparot1Uy bIanl<el etJ1horIsalion to 'over-!ly, condut:I aerial reflJollll'q, Iarid an<I1Bl<aolfIn
Il1e tIllJitgry Of Romania" is granled to !>otn US Government aInrall lll1d "eM eilCtaft ,•• opereling
exdusNely UIItJO( eontr:acl 10 the UMed Slates tlepaI1mel'It 01 £lefsn$a,'''' Indeed. en <JClU8llY
permlssiva apptOllCh Is appied to almost GV8IY aspect of lIl8 egroomenl from the ~on
lldMU..... undel18ken bv US forces'" to Ille ep~ U/KlIlCIIticning aocep!lInCe 8lI 'Y8Ikl' of 'ell
profossIonalli<:enoes:·,t
.

1he WlTO ~I ~ on ClmiIfed In!MnaIion anll a llllIIlnl mIIII81y 1nstnJmenl. the
AQteement 011 t1HI Prr1BdJoTI of Mfdary05UJffod 1JtIrJtmaIJon,UI UlUo rnal<fllQ dear thiIl CIA ac:lMIlea
~ fall tMWnblguousI'j l.Ilder the MQ1lCY rllg!me In&1itubld under the NATO SIctrity Polk:y. All In
I8VllIlIJ ottw Eastem ElllopeanCUJlrleS who adOPted mote 11Mgenl1llCnlGy poIlc:leles part oI1h8lt
WlTO eccesslon. R\llR8llla'I1egl!lllllon on dauiIial:llnfonnation wat ~ #vllUgIl PlIlIiIlmel\IUl'
en<! <:rltid$ed tlY eM IOCleIy ror J>elrlQ uRlaI_ QI
156. The ..m nor.moe was part d an awnnt accepI8nce, In principle. 1hsI Unllad Sea.
agenc:les and plIIOlYlII! haMI
ott d8talnIMllnWfar opIIl'8tiorIIln Romania In tIllI 00ntaxl of !he
NATO ~<rt. The IdIcMlnO _
was <lell_ tlY ltle CllailpelWl d "'" Rllmanlan
OIlleOStilin to PACE. fIIrClyIX'Q'J I'M1dlI. W!nIt1llltPACE Plenary llebaI.e on my !'ePC't1n..... 2006:

'*'*'

transfet or p l I - . ftOm 1tJtJ IIISt momlllt we u.id that Rt>nraIH
~lJIIfth t1M lJlf/fedSmtM ,""with OIIWllIImbI/IlolHAlO. A/Jr:rd1JAntlMl /tI
RomanIa tItId ~ pnoM. WJ did tlIJt 8JXf <» not knOw who 1M ~ Its
boc;a.... do noIlIltg8t IilO drctll1f Il1ll utder lhe elJ!IIOI1ly or the CO<1IlITies wtlon t1HIy lIf/II
~ ""'_fnwftldJ1Illte/q>Ortf _ _ d o n o f ' - l t p I ~
to ... wtJfIf _ _ "" _ . 1II11l1$ wily UlII1JId St1lI8s ,ut/loIllIIlt hJJw to _
tlIJt
only poI/!f:eI IlIA
about WIJGC/Ier fIf/fSOtI* MIte h ~ or WIllnlitY

'Com:8minfI the

/uddiclII.w-«-

153.
I hal'9 viewed lito Romon:8Il AcCe$$ AgreemIlI'Il in sllWpes1 focus. _ , when I ccmldor K
in tIl_1ighl oI1es!imony lIlCSlved from RotIIlInian 8IlIf _can oftidllla abouI!he bllalenIl 'opet81lng
agroom8llls' thaI jllllVai!od pmvlousry. seu- on both $ldes <XlI'1finnad lO rna lhat 1118 ~ 01
the Dec8mber 2005 _ . Agrn&menl "'" b8sl uncIemood as ~ ItlalheVe preyallodlcr
.llIIeIlll ye8fS but have Qn!y latterly lleen formellsed.

154, TM incremental methOCl at tomiali$ing such ~s' has In filet been used tlY !he US in
OIl1er <XIuntties In which U. fcralS have lleen ~ impol1Bnl<lolenllon operations In !he COII1"'"
terror: The most cons~ exwnple Is Af\l!l8nlslan, wnere lsSC year's
A<XX>mrnodaUon end CQno;gMlent A~nl to.- Len<l:s an<! Fad6lleo at ~AlrlieId'"(signed on
:!lI september 2005) represei>t$lf\e r t extlIi1SlooOf liis OS
Of
ons
jl/'Ol8dlons
1ha11 ha\1I yet to encounter,""II WS$ desaibed In testimony belOllJ 8 US alUlt as being 1Il agreement

moaB!

_.

ana

llJ ae.~bt~th. VItlI4 SlIfell rA~tdaI and ~~rM~oIUrbdStli
.. Fon::ulOCDd
001 I/f. lamtO/YofR<wtnHt, ClOM a! Oud'latat. 4.12:2005; {hf,fW1nlftw"'Romu.ilnN:JI:JIU:~~G"t8t, MlriUell
o ~ ;0 the RlppcrtIKa' In t.Wy .2000 &l"I:Ir ti ~tOT1 by 1M ftomantan f'~ II iI. \IJIOI1tt $ICW'lbn; aut 1lVt 1M

ra~~t\)·~IIIl1WftbI'l$~IttU'li&I:ftt*ft'onf""P.rt»t'ClOl'I~~of"=-uIDIlaw'U'!q'p.tI1
.~"rnel'lt iMD prtclfce: "Th, 1 ~ lfe1aita rtpmin; tbt 1D1'*f ~ and .,... ~ be "" te:Clrd&ta ¥lilt
1~I'l'CtIC6\j ArrIn•• manb; • bt ~nduded for ~ ~
[.tMd' ~1U; ~ ~N. .ppropcllm.lM Part•• Dr UMIr

th,

.r.a.

OesignattdA1JIlor.b•• mt:)'.r,l:er.\trto-I~IlM'et'lg.mera"bCilI1)'QloC1h.~dUMt~rt'(elA.lt:idtX1J.
lQ$t.~omaniIl'IAc:cesIAg""mI"'IU:z.200S.Ridttm.ttJ.ncStH(,~ntt~'OI'JOtttM1Ih1
..~~tn:
ql,lntJO(l IJf* Ira Mmt.try of ~III ~ of R ~ .nd hi o.~ ot o.t.ttH ell »-lJNtt4 Stdn of Amfdk:a.

AomIJlWl ~ J'Qrt.ment, fl t2.2005. 1Nd«1t, It Mdt vu.. b1 the Inali ~ Uw fft211\.1t tbt ~~d 0Yi
UttIltlaw to 0. tIIIdtr ,Xd\l.JVIoeatr'nd tatblo DlJpartmantof Dtftnw (rdIW thtfl". US QowovnI;:(tNft ; . . . .y) b.

1P $ ...

.a.rln1f~oftMrnlitlry~o1the.~

'''SH Romatulln Ar:I=Ju,.Ag~mtnt.a '2.2005" ~, atArtld, JI("~

I"S•• Roma~"~~&.,~~.M~ut
11'S.4 R'Clm&rmtl.At»t"J.sitftlf1*l\5.1~.~.dAttidtI~3).
... 8M RttrlaMt!A,c::r;:u:.~6.12.'2OO!i.lbidam,IIt~Vl(1).
.,. GI18 U'II' Ac:ctJm;mod~ Ct1n1!gntnld ~ ~ t.Mntk IfIJCf Ffd1lIN • iHIfpm AH11k11Ht'"M tM I1IMJ/f; ~pulJ/IC

q:/AtQhJMff()(r.f/A.m.dbyI'tEGItJIWW~1G1tirrt~lI,.t1Ifdo.t-J"JfJl)lJf/PtUtitldSttt.• .ot~~

,1'4 .nttred lSlto by U'I. Host Nlbon.n4 hl.aM. on :za..D8..200$ ClNWinIlftw tttamd to IU or. -eapm Aof'!'rMnr); ~
fdt:Wilhlht Ra-pp«t:aut.
1:Il S.., (Ot .,..mpl., u,. Q.a11fU\ ~nt. :28.CU.2008. ~... f 1t""tM H(lIIt H*n ~haNlt:linl ~ MIS
"'In-anti tbll tlW UWe! ~ $Mil hive ~ PI....~.. UttCf~ ttld ~ em-1IMlcIln ~ru. Pr1fniNs
duM9l.Motllli'lteac:eoo1~isag~ The Unbd stIta Ib•• tK*SwA~tM~durtnQttl. P4r1odotlftot; ~
~0L4 In)' itI~ ~ by~ ~ NdrHl or Itt; *Gents... ,.. .. *~.strad 1ft f 13. 0.
N,p.....trt aI
2006 ~ItlPfil"Ud" .11 ~ ~ ~ 1M; UnJl:I1l scn. ~ ~ tftUon tot lh. Ut8 cf Bqrtm AkSaIcf" ...
~tary rnnnln;~t any fOtm&l«Wormal'~l"Ior.tN:thad ~,.wto s.~:z006l\a.drnalo\'ftttokol,l.rt'Jt
tJl'l

a.gram

on two cccaaIonS lhat!he NATO ~

=-~8S.===F~lf'~:==\;==~
of 1llnllgn _
I8IIIIoea (kl par\lClW the CIAl on 118_ tenllIxy..'" RtIIl18tlia rvpllIld'" tlY citing

152. In terms or protections, Rornenia'. key obf;gallon$ soem 10 lle 10 llivo "dill rugonllO UNted
Stalu OposatJonaIllIld S8ClJ1tty axlC9tll$:tlT and 1O"1lll<lI all ~e I119lISURl$ w\1l'in ill p<M8t to
ensl68!he protection, safaly ana S<lCUlily or U~ SIllI\l$ forceo property:'"

at the "War on

1er1llTms 10 the ~on In Romania - _
agnMld upon aMnllllIly
wl1hooI te!enInc:a 10 p.IIIlamlll'llaly OY«S1ghl /II8ClIlrismI.

tlY m_rs of choexeo'tJ

compter" treeIlom from .erutlny or 1 " _... by thtlr naUonaI COlInteJpa:ts <Mlf since.
and lito Unillld StalGS. signed QfI 8 ~ 2005, which dGel& ~Iy
lotees basad at e seleeted rJJmber of Romarian mili\Bly faalitillll."·

30

trItaIrRllIIthtI~·

....... _nt _ _ ,.

...., .. MlIiO_ .. _ _

... _

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. . ., •. _ .

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UlID_<:cut....
.. SS. _ _ ua_ ... _ _.
...piooalr
_
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_ totatoa9Odln""--'OlIlho_ao<IllI1I'N
",._oI~1O.1t.2""";

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... _ o I ...

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an~lIr1'la~~No~
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l ...... oI_hm>il_pltoo.F-.ln ...

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• _ _.." " _
.. _ _
..ot
.. PACC.:zo..t2lllll; .... 1.
~1ltt ...
MIIM>oUnl<d_oI_.., ... _of'*""YCItftIIN_.
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F_""tfun1tl<R\lhlO._"fID.....
oa.~~_lft_R_·NAlt>,

~

osce~IloPfl'I~_ot_),

_ _- " " ' Y t « I ) U r ~1lI!'C!WIfrlhD1!tp kt=Hd jWJ182. tttP.2S1.
.. ~ot"'tJpgfF
..... ~ " '... ~ . _.. PACC.Il ... 11111-...oI... """">'of

~k.nlJaI~9ItR~."""

"'P_ _ cllItnt .. 2 l I O t ~ ~ 2 7 ~

UNCLASSIFIED

_

.

,

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L0340

UNCLASSIFIED

N31J.... (2OQl) , .

31

N31Jur(Zlar,3lI

162. The body 1llaI 9 ' 1 - eny piece <If ClaNIfttd lnfCrmIllon meN Yotlat II ~ lIS
"CI1gin8lor QCI11l'oI,'''' . . ~ rigItllO ..t ~ as ~ wWc:h IncIvIWIia . - . . !lie
inform&Von, how they att bl\e!ed. whatlllll)' nlllcwecllD do wllh \he lntoml8tIan. end _
the
InfomlaVonWlll_ be ~ «have ~ cI8I8lllcetlon rucluQIld. 1t i:lllllOl/1lllY ~ 1llaI
'\hit prtlcipIl of origInalor _lIVopa 1he ~ prirdple;
Cl\llelwlM PIt. baMd on 1tIIa
plfnQple, the CIA wu eIIle to txdudl ftc:m the 1nIarmttion loop oven lhoat IldMlllals (~y.
soma politiQ_) whelm itmight have ptrCIlliVed to I!BIIB I gon.ina need to ~ Che 'llIggar Petlll'e.'

167. Our <:Q<\l!ruing I""ostigations _
June 2006 hlMl llllowed us to 1M W. statement Into
context Romer1!e Js right 10 state tl'lal the NATO fnlrnewtlr1< on 1110 lIlllIijlatflllll le.eI llld fIPlIlJIa
detainee tnlI\$fe'" through many CWlCi of EltOpo IJlEllllbe( stiles. i1cIlIdi"ll lal9er naliOll$ 11l<e
Galln8ny m.nlions(l in my ",port las! year. Romarla. IIJ<e Poland. went beyond the IllJIlilal&nlI
fmm~, how.v.... wilen It e><plII'KIed \he scope and pIII'POSO of the aulllorisaljons il gl1lQ!ad the
UnitOd Sl8lea. ~ 10 OM of our scuI'c:"s irMIvadln mai'Jng !he key b<la1erallllT8flllements.
Romania "knew wMt the United Stat"" needed from its allies and in wtlat ...... we alUlcl SlOlsl
lIIom: It was Iheretora porl:8lved 10 be in the 1llI1i0l1lll InIenlSt 10 oxtend a Mher level oIsuppolt
'[hiMngl wor1«ld on lhe seenrt ff.ghts... we WOlked ~ Wilh ~ of the CIA on eslllbisllil1ll
prisons here,"

c.

163.
FIIll!lIY. the CIA'. """"'" ot Its .pcint men" In PcIaM and ROIIlriI-1leY ~lIuab In ~
CCl<.l'llIy wI10 IQlCIleCl tor tlllSdule, ~11ll adherence Ii) Che nHlIlly 1IleIr ClWll natlanallllllV.caa18fillCl8d Che _
CXII1SldIllllllons of"lQylllty. tIUItWOI1Illnea end /IlllaIlilily"""lnlegralto NATO Nt$
on pmcnnellllCllllty. W1en ~ lila Idnda elf pecpla 8$ thtlr 11II1CIlO, _ CIA S<ll.Re$1'llf8mIcI
to f8lal!OO8l'fpa Of"fMt deYeloped <MIr decacIea'. end~ of rellontlI ~ l1auI» lhal
were"9ll% In haTnOny wnn _ 51OlheI".

B5

_tllYUllI".....,Y_lIhmJJlta1yltrteJ~~

158,
In lIle CO<n& of cur <!i:s<:u..i"", Willl IntellIijllnc:e oftIcillla In lhe U"l9d States, a ll8r1lor
member of tile CIA COunl8rtemlrisl Cent., me<l& lila fOllowing I1lfOlltks til 0Ir l/IIlm: •

r-I- - - - - - - - , 1

164, By ~ng .Ill.......1lQl' cfllla CCl/llItHVDprogratrme ana NATO<on\jllIantIlallt. tlwCIA
8CIlievecl ~ <lI ~ cenIraI oijec:tillll&: Ith8ncliJld<td Ute ~ and Che 'point men" Ilwoo.id_
wtltIln llla CIlIIlll1.. 1n qullSlion; It Ii~ III m allt<lMe mlnI_1he lIlIl1botot PQiIh and Rcr1llW8n
~ wI10 lIMN about - . 'tiny tillllllllaces" d lhesa opereliOl'llIn thelr QWll countIlea; and It
llJiad 0J1 My <liItribllUon v.tI8!JoeVer d lila claSlIiliecl !nfomIlllIl:ln boyCilld theaa 8IIllllI cirtles. t.Illeu
lll<PI"sIy 8JlIlI1Md b'i Che US GO¥IlIMl4lIlt itself.

'Many ElorCpOlIl COUl1tiiM bave mulliple 6eClJ1lty lleI'VicB$. And In most CXluntii... lha Af18llCi
daals with lIli Of them: with tlle
Willlllla aflti.{errorlom poIioo, WitII ~ Inlalligan;:a.
will> other units - and of lXl<Im WitII mDllaty InteIIigenQe ". QJt tor the KIlO pRlgt'8l'I\ffil we
worl<Ed strictly in lineWilh 'no~o-mow.'

pol"".

169,

ThlllB

llJ'8 !w()

auantial

~ams

32

at ItIfotmation in lIllS stallIrnanl both of whit/! have UIlimataly

165.

Yal nona of " - re8trtdiV8 Nat ll'ilIQllttI Che flId. blI

ax

I'l1!8!Jd and RcmIIn/a,

u holt

QlId1
. -fiiiril
. knowIno!x
HqJI
dg!en!ion
I!I!llI!!!MI!!. WIllli
....qrt
conllrm8lian
_ d _!Xl!Jl~InInb1MC1.K1 Nt
v...
_ bliitOiiIl'(riiIler
lhenwe
\ll\IlalenIl)
8m11\g-' and tlI8I ~ prilgtarnme _ ClIIlfecI Clli with Che IlCPt'" aulhodsdon ot the

proved indispensable to "'" uncIlnlanding of ' - the HVD IlIlIll""Ml'l wQ1<e<l1n Elmpe. One ilemmilllllll ;ntQtligeorn psnn!l!}h!!l:" -i/O" to lhe heart <If how the CIA formed itS 1'818li~ lhe alher
- ~rvation of s~GCy -1'8V881. 1mJlCl(Wnl sttuclInI COl1SId8lllllons.. I alIalI dG8I with Ihe sltutIw2l
Q)I1Slllem\ions fillll

r&llrI/llIlI pettnec' _ , wareoeMld lNI empIiali<; JUPIlllH:

I

I

:One of Che \18IIl erWWllIleglICitI d

d. Preserving SK<VCY and NATO S~tRfty Polk:y

Our solM'Cll'. us. ollila lllql{6SSion "nee<I-to-l<rlclW' enCllpSlQtol one Of the masns "'ltd to
keep !he HVO progralmlO In Europo Gtct!ll"" TlVO<JQh \liscua$Ion with sllV8lW other Souroas we
have asteblished thai dsssitied irrfomllltion 8bout lhe llillllllnllllll'lll1Q_ ~ n the CIA
partner sorY.cas "' Poland and Romanie WIll ~ accordIng to • alrict .-rIty elf InfOrmaDan
regime dnIwn from the c.rmt ofNATO'aSeewlly Polley.

theC<*l War. wt*:ll hu CIllIltd 1nIll1heM.mances. II
1llaI NATO _81 dOll1l1rt ~ openllJona In oCher NATO CilII'CIa. ll'a a lllIdlIQn
II1at 1$ ~ IllaC8lW1Ct. we [1Ile CIA} jIlII don't i/O ~ng on oCher people'a Uf,
esp!lddy not In ElMope."

_s

160.

end",

161. unaar the tlllTllJ 01 the NATO SttLriIy FoIicy.'" "IndMdIlaIaln NATO IIll1lo<ls ... 8haII odo/
have acoess to NATO das5ifitld Intonnallon for whitlllhey haw a 1\IllllIo1l>l<rlow. No IndMduaI Is
endUed solely by virtue of rani< or !'flPOlnlment or PSC [l'ert«lnol Security C1llll1'll<lCG]1O have _
10 NATO d....ille<l iIlfotmlllion:'" In tile contllld of 1II1 HVD~, accoRIlng'to a so'*>f CIA
offic>aJ. ~lA dQ$$ified 11$ Olllllj!!lonal infonnalion inll> laLlII!O ~" esdt of whlc:l\ woulcIllt
assessed separately under the "need~DoliriOW' pMQPlelri
to prevenllltlY slng!e fOreIgn o1liCl8l
rrom seeing lJ'\e 'blgg,", plcl1n' of what was actually happening:

lee, lim llla tnportance d ....
afIImlalfan Chel tlw CIA l'amI ~ ~
p8Itner8hIpI _JIlSl_ dvlllan counliel'JlA* but aI80 In tile m11IfNy.""..... M _Inqully
PR9'8'IMld. wel1l8lla&1lh8llhB C!A's tel1O'NMjJ!nInl..l!n"t"'UIl!!~(~ end belgn} llI1l
~nftR!Ulll1bt!bo on>' "I'P"'¢ati' a;;l""".~........... qwp1fQl)I cUt
lO lllUIr ono.mberael dlltll8ll CMllIlgl'lll1lllCtl8lUmS. 1M, an ~ part (If Oll' lnvasllglltl"nlRlItl/Y.
~ldIng on _
l<noWlecIg!I 01 1h. NATO ~ wu 10 ~ equal acNlny III lIl8 CIA..

~_.-lllpltwllllMlIllIItylnflllllgence

urvI_.

'Tho Agency <OlSG be tx1nging UI3l. (UGama Illn lad"") h/n'I$olf from an airplane Into a prison
in yQ<JI ocunlJy, bUt on .wry Vny tiltlt piece of 111. dassified oporaVonellllformaUon. WWll
1Illure you don't nlled to knaN that Informalion lIlen franldy, as an Imildd\lal. you wiU no......
knowlL~

a.)OW.W4t1tt, lUobt41trtO'" "",ans&4otdto_pUwKVOPfo;rt.lftNMlCt'M~of.tip.a!Inlm~~ar~ Th.

W\ac.Mdk'l6qt.d~ltMNA10hmewoc1c'~tle'uflOlIM...-nd'-.g\f)fE~CfiJwnlioPdtl,~.b

Wtns 01 baCtl·~h)'l.atUCdrity and MCUrIt1 ofinfl)nnCotL,"
Al s.. ~ro. ~ 'din ~ NQM ABantle Truly OrpnilAClol\. 17.O8.2OO:l. aJJ~ nate n. 'I'M ~ • Clalla-s CD
*fl.IUl. tiIat.·amwrcA ~ ofp~·. apphd '*h IQNA:ro-. O'Mtirl~ tn4w.lnbmdon ~ ~
AATO malNll!lr1l Ol\ • t101k,. ...." Bdh. ~ of ~ .,.
to .......TO cJI:a&d lz'tOttNtiM" ft 1hI

""tnoCI

_ t d oI1!>b Poley.
ua~.InEndoatl","C"'",P~~.I1O'1itNCtionenUlld·App1rle.l5oft~"'''''~~It''P.2,I4.
lit • ~\ .~)'lo'lg an 4tfttf
fA 1tMt poky, . . "flMldlrnlnbl ~. WII l1II\f;WIttd tI:J nM ItLd

w..,

~ W».Ild be WrrIfd ~ ~ dldlQluticr<l1ot work P4IfPOI'M ~ and aot ~ btelvs•• PtfIOn aa;lJpltt. p.rtklutIt
po~~ ..~r"6c.HA.TO~~
... A~Q.idI'D:Jtflt~<Jfa..tiltdlnfMrJEott.Dcleumlttt
~114.... e"".M1~22.0$.18S1
. .

.._."'..-..1r-_PllodFI<.....
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800._....
-"'B'-8oJIo"""",,,,'" ........... _of~.•".._ _ '8oolo
PmcIflu.· ..
.. _ooiII1 ..... _"'a.pMdplo.,__ ..
l~,

2,flll'~·---

~=-=::v==~:::.'=l..a:.~~--_.
.. - . " ' _ ... -_Pmc/ploIolIld _ _
... _ _ ' _ - . . , :
""o1~.oI

,to<. ""l'OflI-.e'

"'Cho,,-_oftno
10 _ _

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_ , , " __. . -..
NAtOtll;
P*t.
.. _ ' C ' - _ - . r t : t , p p . I...
rllldj _ _
Io_ .. _ _

p•••

·unq_."'..,...

UNCLASSIFIED

.IIoNII,..-....._ ..

"llltlN_·

L0341

UNCLASSIFIED

ASiJIK (2007) U

33
Ill.

S....ret dot.lIlion opendlons In Poland

I.

PMIMrIIIfJ with m/l#llry lttte1l1f1't11c. Tn Po/IUId

AlIIoM' (2W1) U

5

167.
Sincs the May 2002 "quaslo(lllQrm"'" of Ila S4lCR1 ~_. PcAand IlllS had 1WO cMIan
inloligont;e agenci..: lhe Intemal Socl>ily Ag&~ (Agent;ja
WowMtnMgo. or
A8Wj; an<! tho FDllllgn Inlelllsonce Agenoy IAgencja ~~. or AW). Noilll« oi !IleJg 3!!!l1joM _
~dflred a "jaNQ ;bgt";e 81 8 etA ~O'l"Mt fe, the 88~\i'~ "~RlVQM M tbe l-Ml prpgmlD1mlln
P.ol§!)d ~Iy Ileeausg 1h\IJI RIll "subj&<l 10 alii! supet\'iSion, bolh by Pa11iamenl and
GovernmenL' Since thelt creation. the Heads 01 boll> Ih8 ASW iIiid Ui8 AWIuMl been apPOInted
and "'.ked by lila Prime Minister. """ Ole di~ acoountable 10 tM Council of MiMleta, Inltialy
tIVough a CllMet CorMliUee thaira<l by the PM (Kolegum do Spraw S4t%b Sp«fBlIr}f:h! POd latilllly
thtough tho posilloo of Mirislor-Coordinalor for lila Special ~ ". Tho ABW &I1d tho AWeta
bolll elSO answerable to the Co<rimissioo for Spada! Serviclls In the Polish Petfulmenl (Si1jmt1'la
Komisja do Spraw S/<IZO SpecjaItIyr:h).

e.:pi_

168.
AccoroinglO 01>' soorce•• II1e CIA dalGm1ined thalthe bilalorallll'l'lll'>gel1 for operlltion 01
". HVO progranwno hed 10 mnaln absolutely ollblde of tIu> Il\Kl\lln_ of _11Il1I'1I o.-gllL
For this reasoo the ClA'. c:l1t>$on partner int8l1j~ ag~ in PQlaIId was lint MIIlIary Inf01'4ll&1lon
Sefvlces (\OItlis1<OW9 SJuzby IhfQrmacyjne. 01 WSJj, whose ~clal. ate part of ltvo Polls/l ArmllCI
Foroos and ~oy 'mititlly $lBIIJs' in defance agtll<lI11llI1l under the NATO h~ The w.l/ was
ebIe to maintain fat nJgher 1_19 of 08a$CY tI1an the t<IO ci-.i!i8n aganc:iG$ clue to lis r&a.lrring 8bil~ to
emarge "virllJa!y WlSc2Inecr'<O fmm posl.(;¢1tV!lW'ism refoml procsssas oesgnod aI achIe'<ir>g
OOOlo<:nItic ovorslgllt
The WSI waa lomlaly 8COO_ 10 the MinlatBT of tlel«1Ce. tlUl our ~ deacribo it lIS
IUMr.g operated man as " kind of "carter s91'Jing 1ho ~ d psl'ticU;lf eRte g~. I lind it
espociQly interesting that ~ epol<e b> ~ltvo processes of ""1i~~
as

169.

AJform'"

~~nslllmed~Srrans~~axrtlj5l
to
~.'"
an •
to iltWlitI>lT\6d m amtt Dell"" tlIIlt d18S!irill& the

lli6m Is no douDi that the

wsn,

bou~legaf",andmornl~

i

I

B5

34

170.
From
_
wllh Q.I'I8Il( eM _
PGlIIII
lt1lIIIlIgence ..-Is. we _
established 1l1al1lt6 WSI.lIliel~the HVD ~"","",,"ed t<IOt_ a f ~ On~
fitst leVel, mI1lIeIy 1nteIII;- 0lil_ Jll"'lI1c1tcl ~ WIfIla or phyalQI MCIlllIy by
~

~

S8tting up temomn« pmmmrt RllriWt '¥e ".-~ptV!(artM1d betA" det!in90tr!Rsf!rp
inI.lI~Iioo"i<:livl1lM. ThIs 1lpPlllBdI_ dejlloyecl"-l1Qtallly to pnUct the CIA'. _ I I >
... WillI aJ' lis BClMIiet witi'In, 1ho IIlIlIl8I)o Inilning ~08 lit Sture l<lejJaJty. ClueiftecI

aM

~

the ml8l8llCOll of wIlIeh

msc:le kI-. to

WG$

otr

teem, dGs<:tibe !laW w.ll -oenlS

peofamIld Iheae MClIlIy lilies Lrder IIt6 GWe of a PoIlsh AArri Unit (.JIIdilostIqJ ~) denotlKl
by IlleCDde JW.2lle9. W!IId'lW8$1hotamai 0CCIp8IIl dIM Sw.~faCillly.'''
OIl tho SSOlnCl level, 1M w.;r. ~ <Iepended 10 a IeI'ge el<l'-« CIIl lis ""WIt
lUlllIratIon ct ollllr _
...4 porulalal lnalltultona tIIr'ou;II ttlI colIl1lomlon wllh <IIIden;o_

I

~n

I

'und!Oltw."lIllllelr ranb, Our SDU't:aS have IrdleateclIO us !hal WS/ CCII_ _ 1'flll"lIlI
n inSIllllllons ~ the ~ Mr Nay!galIon ~ ~ ikiillli Al/ilIlCJli ZiYJugJ
lMIIBjJ.
the llldsi4ncema-.u dlncoming CIA
ghls; "'thoPq!!s!l BorlletGuso:1lStlluyGnlnlc:tnej), ~they enued lI1at normeI ~ for
It¢Il'ing foreIgl passengn_nol S1rIclttapplleclWl1ell_ClA 1lIgIlts Ia'ldeCl; and1ll8nat1onl11
tll~ (G~UrntJCeIn}'). _
they molYecS ~ Inlhe ~dfDos
fel~ cpGlltiona, TIu tho ni~ ~ ptII!neI1IlIp Ilroughl wlth It JnIIl.Mlnca
rcughcKll a IlCClety"'" ~ <;QIIIlUl/ty..... none fA \YNtb was d'Ieclalcl b:llhe conwnllOnllI
r"'~811 overaIghltnee:l1trismll,

\iiOOre~SliliidildfegUiSlng

172. _Baked lD gIYo an ~Ie d. WS/coUab<ln!tIlr.,.,., oc:cupie<l8llltnjlOltanl poaIUon In
the opetallon d lhe CW, ClIlIlIIt ~ _ _ PolIsh _ _ llMI8Cl Mr Je¢f 1<:01. totmer
Cha!mmn oIlhe 6<Wd d u~ Ailpolt ~ (~L/)lJIIcze "M.tzlHy Szc$Io' 8llCI
1Ji_ d SZymMy Allport ~2003 ancf2l104, A sotmIlnP/lll$fl mlIllari lnt8lll~aakI:
"enyons .,.,., hat oantllI:t wlthlhe Arnaltc:ans 1$ our man The OiAlClar [Kos]13 tNT rnan'. MOther
senIot PoIlsh oIlIci8I fdmIflllWlln 1ho 1Ill1Il'll'lfl'l8llll8lljllalned to us:

we

~

1'oI!s!l m1UIllIy lnllllitoene:e opetllllwls __ ~JIld to . . . poIltiona,
eald to pIlI;8
lheIlt 8I)"llhanl wlllll~ to l!l8 WflJ this ~ ~ !11/1. TlU l.llI:w you QQIIl8lO

lcnow Mr 1<:01 as !he

cn=r 81 SZymany AIrpon.'

Mr Jf1l'l:f KIll wenl on to bocom8 • direclor ol 1ho Pollah pIlVaIe COIlSllUClion lXlfllP8IlY
"~ ~Ia SA" 8Ild was
Iloslaga In llllq In JlJlI 2004 wHlsl pu'llUIng cornpIlt1'f
proJects there. vm.n Mr Kca _ IlrouI# to aaraty ahorlly a!llJlwatdIi In II fIIl'8 llIId by US Special
rnEl<ia ouIllIls ll/IlClfIecllhllt tho _
opnlllln 8llesled to Mr 1<01' qnl<s to the ~
~ "'Indeed. 111)' In\J.iIY 1lBs been lnbmad I/laI Mt Kos' "ecI!nlIdicnlI wlth IttMlI PoIlaIl seem
senl!co" in hl4 ~. alfah have '-n "Cldrmecl qulllI ~ dImg JlddaI

173.

"*en

ForI:e8,'"

• s..MtJR.-J 2yhlrtCYID. 'Aft lJmJCiMci GarN_ ~ roit ofNi$~nc.-s.Mcu lit tbt ~ P~~.
~... ~ p~T putl1&h1Id jo1nI:ly byttNl GenlVli ~ for 1M ~ ¢ontn)l bf AtfM( Rlren (CCAF). a.. N~
fl..tllalTllll"\ttW'Y ~IUI Ow~~. ~d eM Hwr.M R~ C9l'ltrw .lM~/Vl'J4nt oJ lAw, Dum-n lJnlrrrmi'l)'.
Olio, $tptJI1"I"itl"W 2003. copy 0/\ ... ~ OJI RappoMc.H (.....~t ~ Tl\. R_ af tti4t Poilb ft\tI~
s.Mc:es1.
2:: "wMtl tbl PQiJh ~ puMd ~ MW 'H Oft MC:nt ~.". (n.... ~ of«qllrJ'ltt»flo 01 flheJ many

"p.

~.andmJ;;ngk1al.m.utl,..tuw8RI'.0$6t~,'Ibf.t.~oI'*»OUl'ttIbfft)t,U'lepublic~nbhbMtlotlwtd.
~kMlrm or 1M Hf'Ma. It cf••• rvw
Iabtl rJnIIUH, Cf1Ol"Illi
1fltng.. I <Bd no! InN(
~I:h 01 ... Ol'm
daJgn~'

In.

c:cn.r

IUttJ

"'' ' ' tM.

S.. RnpQ'l'\" otPot.ndlo Co~-$~tctrG«\oIfalund.,An:II::N 42ECHR, wpta ~ liM, .tl:tp.~. ih. phtaull&
con~ to rSSSQ\Of tM systam DI OW~ht fOt "ttl_ AWo ·~rTllrrt ('lh. SlfmJ ~~ b J"rogalrws WOIItb lblt
CQIml'RDrt f'Qt ~ StMtu. IlCoO CClttl'O($
PQIiP Forwign hrtI'T~.&.;:ency In ~ INtng tz:a tl CJMlptl'lClCh w«:h
nI

f.~ =er::':::~S;::i:r

u...

a.~.

~r

~

o~

lor the SPo«iaI
we t;fU!lId an
2005 1tt4 ptdRJy MH
McMft. Zbl;ni~ WQ.MJmI.M
UlISHZybf!M'Nia, l'hO Ro~of~PoWllnt&"'IQf.PCeS.rAt:f .. ~ n<ltI na. -tpa;fI 3tMe-7.
wt R.tonn cr OJ.& m.\taJy Inter~ 'MMtQ .... PoIlM 1'IU'DN'l a co~it;luI i$tyt Ilnoli Ulit ur1y Ulao... 4.'\4. tDpltaJ 0C\0t

mrOll:gholJlM.ymatl""uRI~ur.PJ1l)l

.._~tl~ttt.r.olS'ltR'UrtoMwbMnhal~.lIttlnlF~rnb

cr....lks'l In August 19i1 to Otc:.mbl'r 1i9S ~ opttalAd ~ff W'\dar";(III' traMy otdm: thtft vnli.My 2003 l ~
tie norTIll'l~ C«UOt (;f fIl. lA'liJtzy 01 Ot~. ~ ~ cbw kill lMIrs1;f1t ett" 'thw t.w on 1M M.iUt1 SteM

um.t

SM1~pl$wdt:lfPlll1lamtf\tont.rsr2003CDn1&'1~noamm.l~tIon~LlS6Aolllt.200$,~tMb\ttI'udlonof

CO\:I(.,.

PMIO Mwlister Jlnmaw ~ ~ the ~I tIP OMti gtl4u.111 C'luot4d fond ~ ,". fUW.laoK.. d riIaIy
1nt.~enc.IlI1t1. O'*IMY ~nc:.lP rrinltUr Anl;l;lni MltMtwM:Z., YlhO""'~ 1hoI rww W'IW, ~."pGtI Oft 1M ~ In
prlQn app.,.,.to hawdOfl,Jtt:etoUlu. public ~m C' e:tIldsm.For ~ o'~.t8pCrt
-.nd rwctcm. to d.. ... I~ fI1J~ Joatlnf, NlifII4, -PoAlh Milary kIldQ'ancI tm:wcs m~ ~. ,,~ Eunzpe.

FebI'VllI')'2007, tl04VMt

?J-=~~='%.~m=:'=-"':~P';"D-~"nm~t.e
Mft:l.~Obitc:tsQt·..lf04ebtrtl·trahWS/,~"bp''''''''~''-~l'IQclMnao~
. .bi.thedClOnI1d.rd
bcKfie.. - from -ot:e.~~ ~ ~ to l:M StMoe'", "tD prcwo.t tM W$I . . . UMf\r;I aDf to f\.t w.,TO
10 m:aln M ~tIl'PN hineS lit «4fIQrnie lts~ l'. .tI'U)jl~ ~ k.,- tiMnda.I 110M M1flTllior

owJ"li:ahl

a~ • .".J

~wUonlttl.ma·

.. OO.cf .......

_.

.......... _ _ tt .....

_o1wlt1\llt-~_I'\Il>io_-Uloloct_

..........,.,--

..

~"t
.~~':::r.~.:.=~==.~~~
--FOfIftW~on

mMMVJ.tdto<lOWtup~flfetCI.~PGIIM" .....KltIcmUf.. t*aw.~'"'1'N. .~1ff

......

f1'.:::.v:::.~~~.tcm

. . ._---.. . . .
_u__

IllIP.-. .

~.l.tUlq~aI~_

r.~1hatlPMmsnyof~fM:II.~~OfOteat.
.......N

..._

J)rtmIt....a-.lJMJMl"IttfrIlarb~

'I'ltlIl'-1l:DcftmuUM~~."FCIt.~r;:(!hII·CCl.IdtlnolCttt"~~~*"GIOI'rlllnto . .

!~==;;:.,~~=='=".===~=~_""'._~<ll-,--_'""
~ftglU"'~4td. . I.lhdIlt.pdIJ~

1101 S ... IQt ~. Itar

H~

tlew:J. ?*h fraq

PrIaM. US ~11·, \YIltMF, tQ.OJ20G4; ~ •

..

~~=~~~t:~KBlWU.,.."007~wwmrlM
....
_ _ ......... _
.._
...
.. _
.."" _
_ ~eQf#~"'ItI1
o

n

~.Lft~

d

b

l

o

_

~

" ' ~ ' O o t l t ; l j _

p t r I I ' \ I• .OIS.2CIOC,~tI
1~ N «I«Id Mt KaI

ac.
WOl<""CLAIll<lI_Io"'_1

h!g:INNrw"P¢bflclll2C01~Jfbl:Jrm:rjpit"'rjy1lidip:r<titrl1«blrrL
·Tho,(IUo~lfle<sglnl

......""'

am _ Pdt. !Nt: I wu lbW.fI)buId ......':'~"mr~tom'--

......._

_ _ JIIdgotl"''*''''e...t''''~_ltlln~1Ild

....._ ......

..

gIWO'''_by
I....... tnyIloIMt_ .... llIlol_

~_~_1,1I.2JXl8,oop'''''''''_''',,"-·Mt

~""'r-J~-_

..-

~.=."::.~::===~,=:--

UNCLASSIFIED
L0342

UNCLASSIFIED

A$lJI,I1~3$

35

ASlJ\It(20071 ~

ptQOOfldirlgS'" rGlaring to 1M subsequent ~~ <If JotfytWJ ~~. As • mlUBIY
in\fl16go_ cp"",1iv& facilitating lhe tnquoIy senoltlvo c:omt adionI of lho CIA In POIat1d, Mt Kos
was 0110 link In e chain C1l ~retI_ that led rtght 10 lhO lOp Of porlSl Gowmrnent.

H.

179. Be3ldos IlllUCllounlallilily S1IllCl\le, wtico!l remaltl8dlll place from lho lnmldIlle aft.om1ell1 or
. lIltl11 $epl9mber2001_1trou;holll PoIand'.,1l\Illl.-nenl1n thoCW. OO¥'8ItIM>PRllP'fIIl'ItlM,
probably no othIr PcIWl olficlll hecllcnlMledile of L Indeed, lit. 'I1IClI*t 1_ of ciUaIlk:ation" at
nellonaiandlnle'llO\UllTl8llll fQVGfs. IA1deretoOd to matdl ~TO'. 'CosmO TOll
celtIgc:fy.':"
SIlK alI8thllS to IIle InfilmllIljOlllllll'lBlTirv 10 cperallons '" PoIerld. 0Ir ~ til

ResPOnsible p"1ffI~ authorillu In PoWld

C)lmg several monll\$ 01 inv8$tigaUons, our team h!l! hllid diSCllssjO!!S wjth various Pops!)
~ induding Qvillan an<! milJlary inUlIIIgence oporetJves, ~_liYeS of stalII or tnlI1icipal
auUlorilias. and hlgh-<ar1king ollicisls who hold fim-Mnd knowledge 01 lho Ojl6r8IIcns 01 the HVO
proIJnltnma in Poland. Basecl upon tIleSe discussicW. wNd1 haw coma to 1he same OOOClUSions. my
iIlqlOry allows mo 10 state thaI ~ IndMdual hI~~""'" know 8lxlu\end Glllh,id'P<l Pdand'.
role in the ClA:s operatioo Of Y;;;;t detftQsori~~ValUBootainee:s on Potith territgy.
m
10 200Q. Tho lclOW01g po<sont.could ihiiiiilore De
ilciXiIil1liibletorlliiiSi aelM1ies: tho
Pr<lsidonl ot tho Republc 01 POlMd, AJal<:sarxl8r KWASNle'MlKl. the Chilli O1lho National Sfl<Utly
9JtQ&\t (atso SIlO'tlla<y of NaIi<l<\tl s.<uil'l C~}. "'. . . $\V'.IEC. 1lle l.Ilri.,... of NllIlonai
Defence (MinisleliaJ over$ight of Militaty In!llIligencel. Jarzy SZMAJOZINSKl. end 1lle HaadOf MilIfaIy
lntaJUgance. Marek OUKACZEWSKl.
•

~ f'c!!1h D!!rIf(1ea!!D!!

174.

B5

Da

In

IMl1awM <!etent!pn

pod

1l!!I\lW ~

nt1Ollle~afln.llh"lnll1Olion._ ...... e n _

!lIS

s.crer
2ieg;;&18st
~

rrrt IrillUUY W I t h " IIi6 tiICii a ijitihvl!lc _-<Cl. C8tnlIIn one of OU' I1lCISI _
moments Of18S11nmy from. loP-lll\lllf PollIh-. H• .ce18d ~

B5

=

175.
In my anaIy6is lhG ni8tllrl:hy for con1tOl <sf the Polish Mililaty Information Sl!I\1C8s. Of' WSI.
e:tvonlcally Iacklng J1 formal OVOtSlght an<! Independent mcniloring. As a resull 1lle ISlrudI.rB
dasalbed heJB fnlm 2002 10 2005 depended 10 a greal BX!ent on clo3e JBlatiol\$hip$ of MI and
pro!esslooal femlllarity. both among tM Polish prttlCipais and belwe8n the PoI9$ end thair American
lXllrlterpalts $""""'1 0' out souroes CllIlrederiled tho bO/l(ls t>elw_en _
four indMduai. BI being
a comlllnalion oIlayai jl(l/SCIl8I allegiance ('We all S8M one anot/lQ(') an<! strlJl1g <:ommen natJons 01
national duty ("O'. but fll$t we S6Mllhe ReputlllC of Polan<:l').

36

-?

i

IlQ

InIolIIgenoe In

war. You

QUlnol

_eep

Tl»~oICIA _t1lIIlIf1W anddaltf/oMln FoIMd

iii.
I

"LiSten. /hom lIltI no ~'In war. T!IeAI Is
SDfIIfIIhing _In a time OfCOll!llr;t:

100. Notwilhattlnding tho 8jlp<tlad1 of the PoIllh 8UlIlOI!M.lOMlrds 1hJa InqoJry,....... iIlenl _
llIlfe 10 I6lC<Mlf new <laarnenlllly lI'AdIlncG fIllm two ~ PollIh 8OUn:eI ~ IlClUal Janlllngs
In PclIIItld by lIirQull assacilIt8d V<I1h the CIA.
.

Wll$

TIles_ fOlRes c:>llrI'C4lOnIl one ImlIIer lIIld prC\'Ide lhe1lrlt ~ "'CllfdS of. t11.11C1rd'
~. of 'ren<1tflln p!1Illll3' aiQnlfii;alll enougI1 to pttIWl1/lal CIA d8III!r*S .... lleing lnlNfImICI
1<IlO
I
now ClOIllkm tIlat a11e..llM l!!g!llJ l!II pI mIlt foIr lIf!!wll!I! pjrgJtI ~ lite
ClA'_ _ ~ !ljI!O!lllDme frL'P6liiiid 00_ 2 0 0 2 ~ AlI_t sbl Of Ihorn

.181.

PoIBnc1.

'*'

176.
There was compIaIe consensus en the pest of CU' key .BI1ior GQutCeS lIUI1 p~
KwasnleWsI<I was tlte f~sl RlltiQ!!!!! 8ulh91ily on Ibe 1M> ~ rrdlitary Ioteiligence
$OlJ'Cii tol\l us: USlilii.d agreed fnlm lb_ loP-'.. FrortIll' t-~.. to prC\'IcIe the
CIA ell ~ needed." Asked _
!he Prime MJnistsr IlIld his CB_ ~ bli6fed on ... HW
progtIlmm&. our source 5llld: "Evan lhe ABW IlntamaJ Sso.rily All9f!cyl- AWIForelgn ltllelllgonee
Ag_ncy) do not haw access to all 0( our dassiliad materiels. Fcroel the Pnme Minislal; U opet8led
dilWllY un<ler the Preslden~'

177. Our Investigations !Java rovaallld thai tna _ oftlce from whlc!l much c: 1/18 Sll'llI1gth Qf 1hls
PclIish a<;(:Ou'lIallility sWclum c1eriYed WlI$ the NlIIonll $IICllrfly Bunt... (BlulD B&()/ecZfN'ISlWe
NarodoW6'jO. or 88N). lOCated In ilia Chn:eU9fY of President Kwasniewski. Ql.i'SClU1:&S conl'lrmed to
US thai thDllilat_ opervlioneJ Il/TIlIlgIlITlG for the HW Programrn& In Poland were "ll8gOliIl1&d on
llIe Il"rt of tl>e ~&olfioa by the Na!lonal5e<:1lrll'j1lulUu IllBN}.'
17e.
Mat1lk 0ukac:zew.1O. en outsbIncing miliary IrUlll9*lOS Cllllt'lll' ~1Y ptCmoled to tile
rank <ilGenor1ll. $el\'lld ltle BaN in the ChaooelllllYorltls dllS8fl1endAlel<sanderK~torllle
ri/'$l live years Qf lho lattol'e Prnidoney, from 11l\l6 10 2001. Mr 0ul<Dc%llwaId _
dlWllY
8lQ~ Mare\< Siwi~ Wring ~ \lOriOtI. ~ IAr stHlee 'tIllS 'Il S8<n!:BIY " S18\$ In \he
Prwiclentlel Chancellery and !hetl beam8 Chlet or !he 8llN. Jerzy SzmeJdZInsI<I was appcintIlll
MinI5tef 01 Nationlll 0efG1lC8 for Mr KwlWli~s SGCllrld l8IIII.ln Qaober 2001. Shc:r1Iy 1lft8IWanlI.
Mr ~Id woo ncmnstlld Heed of !he Military Information Sel'Aoes. lhe WSI. sllIItlng In

December 2001.

~

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11;"_ T-""

17~

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_ _ "''''INO Proano- 10 _ .. 'COSMIC TOP
lenT.
0 _

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tn '-'01' lo

_ I s y tho

ttl••tattMll.nts in r;ou.rt. ~ vtttONsq. ~ an opm III;II"~"' thlt I.tr Kc4' SlOItIttV ta "eq mIY Il1o t.w
5tbr on ~ of JeynM ~•
$JI toWrOdWI ~t l.*aI:.k rfarpnt..
dll8'd ~.04.2006. c:opyon A'll Wlh Ul' IUpPCllteur.
fOI'PIIlM.e~etlKlttlaM.

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.... ,I/<I_lCoOT~.f)CO

""_dllw_"-_«l'oItnd(CA~7-'ll.llII_CA

2001. ~lth!l:l'!t«rtwot'4t(rn'matilMX>f""qtir1iD.1IbJn:r

I.,ponM;tA

oC",.

. •....,:
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up"..._ _

l _ _ GO'O Docombol3OOd< -rIlo .......
lnlhe . . . . . 1othe...-aof.....
en

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B5

UNCLASSIFIED
L0343

UNCLASSIFIED
B5
MlJIIr (2llD7)36

1I3IJ1J'~36

183.
My fim obsotVaIJon reg1lItting ttle del"" 01 ~ Iligl1ls I$lI\llt ••".",,1 oIltlem coofonn c:IQooly
to lhe """'s on which parliater 'Higl'l-l!<lIuo Delaineeo' (HVDo) .""" _
to CIA "billCk si\o$,'
partlQJIa!ly In o.!Wan! mowmllflts !rom Kabul, Alghaniotlln. The ItlO$t ecmplcuous example pet1alns
to lila so-called-mastermind" at lhe 9/11 attael<l. lOtalid Sheil<h Mollamec1 (KSM). whO was cap1Ured
In Rawalpindi. Pal<isten Ol'l 1 Mwct> 2003.... Os Insld... ~ have 1ol<l1hol KSM w a s _

allen 8ertlC8ll Agenq' ( P o I ~ PaNiIJtrzrlI1/J.

~~~~Cl~=~~~:n,:'~s~:o;:;a:~:~~
lIla~1

B5

" Is _
opeRlUon> .......,

.a. 01) ~ t:lptw_ Dt KSM, 1':'1" w.,..-ta B. RIlRWJl,. "t'1M ~rA ia JU'ltM ~'. IlTa.rr DII'l R-e!lff.CQl'\\ 3.03.2003,
.....Ilatt. 1ft http'J1J'l7!Sf(ff~Mhtm; en4 e.ac N.,... ~ "'&iIsh ht""~ Iatr' em\.·

•.03j:OOJ.I"taLf.~Itntmur"""", QbC.CQ shJZtbI5Ql"'" bWltlZ+!1 ttm.
·)lTh.l\lIf't'PCrt.Mrf'QOfd.o'thefll.M.I~£lnT~MacbuponltttUILltdQlQ'(U\'~11CCnw'ri.WM1:

1ft tMI~ oNlM a\ tItlpt""""'9.11o:mrniJ.!io!\Rt1'!t 1rJ patUcullf. ~ ljand 7 o1h COt'Minion Report .,.sald10
'"'11 ~ on lnfQr;N(iOft ~ hmdl~AI.Q..q ~t'I;'" ~tudll.l""', M~~ l<.hIalrf SMItI
~ . "'wtIQ.U: ClJItUy~.tIoen ~ otI5r:ittJ~1ht US ~·81. U.IMI'OC'I~ t~
RtpoM:ln Chaflttl S. d~ 1<48. Fer 1~~onWhldtJ(SYmd.oew"1llslh-velu.dttaineW"wett
ntaf1O$l04. ....
tnpartr:u:f:t, 'Notuto. cntpt.r5',in Nl1Cft:D11taeJ11 ~dGnRtpM. tlPl9t*48a104gQ,
I"W.,.cptbu of)(SM VDd~ .... url)'u'Ulo'.2Q03:.jl.l1lli! OlIK.moMtt dHl'Wa ~.... ~.toCNpW'5"'.5ttt

JeppeIon liIes lIlghl plans !lir eYlilY &Iemllnlllf !Ile dn:uIt up to and IndUcIng N379P, IlIlIim to
Europe !tan KsIJU; l)'p!calIy JliPpeSen"llljll ~lIIl(,) from I<abuI Ol'M'arda rB1lac:I IIdftI_ RllllBs.
feaUI"I1 faIso alrports 01 dastin8!iOn and depsr1lJt8 ll1llt llIlI regltllnC! In 1Ile E~ lllght
manageman1 'J1lom;
• N379Pa Pllol-ln-Colmland 1hen Illes !tan l<BtU InlD PoIlsh lliIwpaolt, III WhIC1'l point lhe Poll8h
lllJ\horiIles (PAN$A) lIIlce OWl' to i'IlMgaIG lila oIrmIlllo iii liiII1dInD at Sl;ymany Altpcrt wll!I:IuIlI
00Ir8SI>0fldln0 lllltlt plan. bulln ~llrdon wI1It PclIah IlI1Itsry IU/lor11Iea In W8IMW _ an tho
•

I

·=

alsO tlancIu owad IIIg11l JlllIl1'/Ill !lir N37llP'. deplIrlIn !rom &ymany. &illIIt by
ruMgllll~g lhe 8lra'lIft to a ll!IlpCMll' In W8rI8It « by Gin; • IIIghl pllIn for lit _
lmllmationaI
dostlnsl!Qn. euc:h 81~« I.amaca;
• Jeppasen rewnss its- plImIng l'ClIe onc:e N379P IlBS llll SlymanjI. lIllnQ fIOht planI !lir tho
romaini"'Ol eliillTlltlta Oflhe dro.it. &1al'tInQflom fllItIlIr""*- «thellrU InIam8lIcrl8l a!rportll1l8r
Stymany, c:ant!raJlng U'4llllle aill:nIlI'a T8tlIn 10 Itt bB>e lnthe ~ SIaIIla.

_ _ ....... n;..

...Th. _ _
• ~~A;w:y,

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l'DOOrdallc~nJc:at:»Mfled irl ttilUOl'l:tiO Ul:hPldlc@.NaJ,'l;lt b~" ~Mdin:adVl':nOl.It4..
beh\lttA
dltl'.~rrt t'lttmatCiW ~nJ.. Th.lIllftgs o:H'l1t ftQm do\Jtc'It ttmin., ~.I\Ib&InHMr:. PMiden. A.-'S "'.. Mnig~
$lttWoi .,;I~I'. lirport al#lorfdt4. M1f O~ IIglnz:IU. IhaNi cbt1ftt4 ~ UlS or OdD Itrfnp. lot aowt

~D:.

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ihlmbNrT. . . ~c-..,wa..-~F«
.. tllCCSIiIrlt~Gf
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lIg1>IIl>oIog_ ..... ",.N'TN_
eAk'Tt'12ftlJCOt\ttOI, .,.PNIISA.
'.AJr'TrdoControl"I ~1tM:tcr/hrwwpt1sf;&QIOMrIII!erJtnH
Mi;t.ftt:n.

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«rn1brr eIRnIwne
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own~eonnfJ,Mt"t

~:...nl.l'ltJt~TJipPJ.nning).lhII'l'A'I'tI~.cf~Dtbl~~~."""prtM4W~IMdIns.n

!

~ty ~ e:tcuh. ~ I ~ (~1rV",?-.. JJ=tN . ."" The H~d:nai!:I Intlud. ~ ofNdtaIIts
h1ahJ~ut'll;tle:m-.4ftQtItI orelA 1i1tnE1~~,.1WIG .. cirQ.:'ta~iwldiJt;'l ~RQ1l!lI1\ •• tnt. "p numb« Of
tetlditlon G'perttc.u fMrta~to Gdt'tAdUtI"iT'ICXA~H cllleS I dN.Waft 1.1 f'ft1 ttpozt~ 2OOl1 Our tnm-hat t;:OfIducf14
.n in~ anat)m oral C'la. 'QtI ~g.':klg.u.t>MthIntornwtion."tht ~~ wwt lh COMl.ltbltlQnwlh ~

~c:,:.::.~~lt:=~,hQhlplcrt$.llI.db)'JtppuM flltM1JllJonelTnp PiaMIn; ... .s.mil'Itd W'I 0\41 AFTN .)'I'M\~)'~.

thai JllPJl8IlI'I8jlp8OlW 10_ foIl_ pAt/SA', COIlltlbulIons lD lheae

169.
Al::colII!(lgly, -..cal crrc.ita wa _
unalyled shoW tne following .~ Of ft!gIrt
navlgolIcn RJSPIlI1IlllIIItlef !lir • lyJ:iClll drcull Gf·mJllP InYoMng a ~ 1Il SZ)'many, ~
de/nom1rcllo B calCu!ated CO\IW.yp Of 1Illt <lIrcn«alllClYllll1&nll

C!'WN._ ...."'"

~li:JnRoplJrt..ihtcMm Furthfi~Q:rq.,..4t1t4It~~~Z03I1tld::2004.
"" ~ ~g-..' tt. ac:hani- d fTINlag.. 01qital d.ta (tfOatJ in Ch. totm Qt ~~d IIflrt.tId nurrbcrs) bftvNen cl~
t1ltltlh: tfO\Md lb. W)df.1 on • ~l'k b\own ..... ~ (AMranllUlcat FbM'4 T~ NItN!n\l). 'OQ ~ .

Oft 3O ....y 200't,lh'AClJJ ~d.

~

OD-O!dinalad ltleil'aetlms WiIh Illo IrHlIghl COlmlUtIicatlOM fmrn ItIlIIlill:r&lf1 PIIoHn-CcJmmend....

my

~rfI.

auc:n

we

~. llCting ~ l'&SJlOI1SIIS from Iha Ilig!II rTUll'lll!pI1ent ayetern to. PANSA'I
~OI\SwilIin niIYJl8sOf!helrbelng~ F . . - v . bo1It JlljlpeOen andPANSA ' -

185.
The ll'IiOlion services provider CUllDmarlty uoad by Itle CIA.,,. Jeppesen Inlem_nal TlIp
Planning. ,.. filed nUtiple 'dUmmy" flight plans for I1IIIl1)' Qf l/1<lSe 1lIg!U. The 'Q1Jn1my" pjllns tiled by
Jopl>e611ll- speCifically, for !he NWep ait<refI-orten fealUI&CI an lIlIpoI1 or depllitlllll (AOEPj and 1".an a!pOlt of desVl\IlliQn (ACES) that tm airt:mtt nlMr 8ClUBlIy lntl!l1<lod '" vlJlL If PoII11l<1 WU
mentioned at all ill !hll.le plans, it was llSlJlIlly
by menIIOlI r:I Wzn.lNi as an allsmate, or back-Up
afrpotl. on a 'oul9 inVlll";ng.Pna9ua or Sudape$L for ~Ie. Thu$ the even1Ual ntgh! pa1lls wr
I N379? registered til EutllCOntll>rs recotds were ir1atl;I.Q'al& and eften incotlenIl1l. bIIasIng ~llle JUlalicn I
to tile actual roules lawn and a1mO$t neY8l' mentionl"l1 tm _
Of Ul9 Poll$h airport w!lI.lre the
Bfraaft actually landa<l- Szymany.

JON. C&idt)rNl 1In;1 I IUbI."diIJry or6OWl,t.ltll>'kOri4"l bJslut~

MOl'l'llMlr. In CMllIIIInsUlno8I PANSA toclC on 1he mpantllllllly of Illlng·th. ollWlUd lU;ht

nut leg of IIle cltcult aftIr Szymany_
~ jhal PANSA ftfad
1IIg!11 pi_in
instances where S%ymIsny had - . omtled ~ fmrn lhe CllgInaI J8Ilpoen 1f0llN plai\$. and
wImnt!he air<:r8ft _ teqW1Id 10 lIy ~ flQm Szymany to iii deslInalIon 0Wklct Fc!IMd. Slmlllllly
In at least OIlIlIns!lWlC8w11ere lIlallilUllll new DBiilItlI* ftOn'l SZymany \tI Wrntw - and 1IIllS Cid not
AlqUirlllnilieJly 10 loa\lll Pollsh eIrspa:e - PANSA s1~ l\8vlgll1&d 1he Ol1WiiIRIl\I;l1! WflIlOuliil1ight
pI8Il.
plan lor llIe

·188.

!lee

~It ....st J~.. n DlltapWt W Itt m...ol'ml'lW in the rancwon. CJt ~fM naMdultI:: Nlr'!*f ~ 8~m ~"'4
and ~s.slm M.e1. S.. ~ CMI tn-rt)n. tJMfl. "ACLU SU.. &o«ng &lb$ldilu)! fat' Par!ici~ t'I CiA TotQ.n .nd
~".PP:n;,' 30 MtI)' 1«J7. MIftH • Nmjf""""""1ldt1 Qrglg&frsoqhprt!Rll'9!l?OI:n2Om'M mu For v. I\tI1: ~
,bout Jtpp*"I)', ~rt In CIA. d.tain.. lran~.,., ~ til. ,..~ of Kl\&Sad "B-Uari. ... .htl' M~r.
~g.
Ttl.
CIA's
T~
~.t'f".
in
TM
IWN
VOIiw,
3O.1tl..2D06.
evai~
at
tatp'th.wN QClWYc!Vt; g;;<M:!'ttt!'y<!OQ!2GMQlQ610Mly tde mtrtft(. 1M ~ Oir-=r or Je;lPtMn !I CjUlXedl ~ 1ha
ar.k:5e as h~; lA4"WI JrQ" lht ~n.wy rlnditicl:lligJJl4. ... )/OU'Jr:tlCM, lM tomn tJgIu. JAf", ~L *"'MdthtJ"

,---

1!lT.

184. The M SXllml Qf my proof. hooI"G\'Sl". IJOlls OOyond memly tIl8 nutllller or <:on1irmad lIighl5 into
szymany and their COOOOI'danca wllh $USpeeled _ . or HVO trmsIlII$. T!lrcltJ!lh 011 careful Bnalysls
or hundmds 01 pages 01 lllW aeronauliall "data Sllfngs;'04 we can now <lmnonsIl1lle thaI In 1M
maj1lrity of cases lI1<lSo CIA Iligltt8 _
de1lJ>enltely dlsgulMd ... thol 111.~ actual r n o . _
r,- - - - - - - - " would not be tracked or teCOl'IIed - either "ivo- or atlerlhe lac:I- ~ lhO lIIPf!!""tlooal air s¢e.tX
aaOllC'/ EUroco!Jltp! The Wem of W:!C:W em;vl&d :seveml diI'lerern
il!:l<lllMil bOih MiiilCiiii
and PQlish COlISbOOlIOl1>.

I

_1'1

I

B5

afterwards''', and contirued lIvoogh0<4 2:003. Ill. _ y Ihat lhe woU.Jo:r\own rendition p11l1'O
N379P undertook a dandast1n9 fi1ghl ftOn'l I<all~ to SZymany QI1 7 Mstdl2003. less than one wsek
alter KSM's llrnlSl. lM1Il$t it II no! PQSSillie 4lltll$ ~ 10 5la1e 1M lac:I dsfirltiWly. ~ Is li1«lly 1llat !he
lranoter 01 KSM and _
other HVOs irIlo Poland CIu'OugJlout 2003 tool< pial» on lhe tUghls
lJl'l<OWfed in II\is 1'lIPOrt.

I

_-.IN fjMM d 0411 fOl" ill ttia~)tANSA·./oJr
Ttiiffie COO'"" In Wltraiw'''' l1lMgated all Gf n- ~ ChrOugti
sh Bl~ e-dslng CClI1lrQI
over !he aircndl tlwul;I eaclI Gf its nlghl phases light up II) !he last pIlue. WIlen _
WIll
handed ....... lo!he IU\hDlIIy ~"I1llle alifilllll at SZymany.'" 1l1lllll<llallily
lhe _ _a
tanding. PANSA navIgalocIlllo IIlrcrnIt In111& mej<lrily of !hellO Q\SN wlCloulelegit1mllla arxlcomplotl
t11g111 plan hlMng been 1I1.cH",!he rwl811own.
.

~

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l

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_..."•......,,_IIlIl.......,__........__
CanhoL·F""" - . _
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....
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'OIIh

Conl'1d~~~"'1he

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~"""~~~J,<arriIQ!out.,a.rre.y~zt:ftM.,.

~

~

thama.Ut.IllluM.'W"~OtI~arPollhn"4bf)'~II~_th.(:IA.

::'=-~~'='-~;:!f:'!!!!S:~S
~

llse.of1M ClHrllan'(s"'(InginttM ~,"*.' ~ if. ~0Xl.DJ

B5

UNCLASSIFIED
L0344

UNCLASSIFIED

3\1

t_

AS/Jur «Q07l ;$

190.
The _ysl. of ·data strings' 1'1... also _
me 10 CQ1finn lI.rlhet in1ri<:ato delah (II Ille
"anatomy- of th88e CIA cJandu:atine ~ons. For mwnrltt BIIdJ qr !hAS"
\!CBs'apereted 'mder
.. 'SlleClai slaM' or SIS dollSi9"'W"',... 1'I1e Il!rC18ft wenl lheteby IIXlll1ljllOd 1illIn ll<Sl>ering1o the
'iiOffi1ll(rules of alrlnlffie now management (AlFM), end did nol, fcre"""l'le. haw toWll~ at airports
grantIld when .speQtitally allllWri.od by
for aPl""owd departlJre slots. SInc& I\\lOh exemptions llT6
the rele....-.t nalional authority,"" ~f\ItlIll>r evidene& 01 Pcl1d1 ~1City in lhe operallons.
The claasesl proof <JI Peland's kncTw-recrgB lwn.Jlll"lii81ion of sudllal'tdillSl' lS damonsltalad by the
foUowIng lwo.<ine message. con\BIned in soveral'd&la &!rings" torflighl$ 01 N379l' In 2003:

A$lJur(2QQ7) 311

,
..

194.

"\he POI''''' GoYalmlenl has dofiI1Iliw1y clOSed the inVllltiQl'dlln Into al!egQd _
CIA p:lIon.s lIfIl
In lhI8 C<rlI1edlon, cnce egaln e>cpIc:lUy clotIosall ~e;>pearinglnthe mecIa";
"II1eEuqlem P8lIlamenr. T~ [l'OIP} Canmlllltlt... hu .nthllJrlormallonMlalll.to the
Polilh aida. ~lhe a1lall1l llsttd in rYOlI1lttlet'; IlIllI
"\he ~tora of ft1li'l1llOYell'MlfllS _1he letr1lIlly fit Poland in 2001 to 2llO$ lI'IIlI'l EutoccnlroI

detBI>ases:

'STSlATI'M EXEMPT APPROVED
POI..ANO UWDINGAPPROVED"

195. Thls 1'B$pClI1$$<t1llll PolJll/ll\Ulllllllllea 18 patenlly 1IIS8llIfel:tlx, The lHltlltem fit lnronnali<:In
i. belled by thellno:ll:'.g$l have prasenlDd ~ IIlqW1lh t h e ~~ 1Rl_1n the
_
"'....",1. the second . _ IUQlI6IlII !heI tile PoIIIh GcMlmner1I It -.,p1Il'lQ ll>
deceive boll! tile CoE lWl<l the E\RI5llI8Il Pel1llKnenl by playing thII IIlSlllutiona 011' llQIlnIl one

191.
'OoUlslllogs'lllMf also_b1e~ us to lnl<le II1e 0lfiCI<I1 OII8!IIl9r>lend landiog pe<mlts ctJteJned
from various oIhercouolries tor these flight$; lhe times and "Weypolnl$' at wf1Ich the ein:ruft anI.eted cr
departed the national eir.IPace of each eount1)'; end lI1e l\CIUaI rouea lkHm _MIl Szymany end
other points on tile 'globSl s>iQer's web', • /laVe wed all of lIlIs inlormalIon to _
1he graphic
tepmaenla~cns of 'Disguised CIA flighla Inlo SZymatIy Airpon, Poland:'" wf1Ich aocornpany tIli$

report as an appendix.

_ _ rei fl.rlIler_ paIMIl," MtKarlld ~y~W1lhh fol'<lwlnll-

II«nS oIlr1fOlmaUan:""

ottt

B5

4D

analIler. f71

On lha'Mlole. Mr Ketsld'. ~ ~ the Pol18h lIUII1otllloa~wtkhever
of t«o possible c:x:ncAIsions'l mlgl1l ChrlO&a 10 lIiII'i. Ii U18 POlIill
10 ley III
hiIrJds al o1!idaJ dBla \\'om PofISh lICU'CIolS. wtOcIICll.I'1eem ~Iy ..-.cl end wIIcII elleasl
one elrpcrI o1Ildal I. pobII:ty "'"'"""'" 10 posI8IIlI? Or have the PolIsh euthotlti1l. wlutuIly wlIhIlBId
V1WsIll1r infOmllllioll from rrtt InqU!y? llltoflgly Ilop& lholll1a Pellah BUlholIUa _ _ the IlWeIllln
In hand and mtnlCe!lJJy!he ~ <tINs II1UBIIon IlIllIIUUIllIIIl ~ .... pGIIIibiIl!IeI.

.

196.

0I1lI

D

192.
In conclUding this ••t:IiM n is Dnly filling thaI I S/lC<Jld Illlte ttem. wIll> consld9rllbJe regret, lhat
the <;over-up otClA Bights into Szymany seems to have eatrled overitltoth&8pfllQlIch ad<lple<I by Iho
Pelion etllhorities toW8llts my inquiry on th& spedI'ic ~ of neliOl\lll eviellon records. In over
eight_months of OOn1lSpood6nce, ~ bM !ll!led tofum~uljf;Wit!l sny ""''' 110m Us own
reoords conilrming C1A~ !Ii
iIl!Xl ils allspaOil 0(
•
~ from the PoIw.
euIhOlitie. for having failed 10 do so W1fortl.mle!y do not seem 10 be aeclible.

r

..

waa

193.
In my repert ot 2000, I oommenled tl1el the eboence o11ligm - . from PoIancl
'unusual:'" to say I/l!l least Mr K8ICI KlIISI<l, Chaltper.ltlll 01 Ill. Poll$fl DeIeg8licn 10 PACE,
6Ullllesled tl1el I ·did not usa 111. informelion recelved from Poland l1onoslly"'" and 8I.Ilted, in t13
lllJb&BqU6Tlt corresponaoncG. llJell10t !>oped to 'answer {m)'] teqwal WdlellStiv8lf /ISWlg 'ad<IrBssed
on. more lime Ill. relevant Polish 8UttI0rities oncl asKed lor proper lnformll\ion·. He l.hEIn .. polled a
tamU.,. undel18lclng:
, would ike to assura you lila! I will transmit to y<JtJ Ille UlmPlote data as soon e. I will be
provided will1

it·,.,

.

197.

B5

r_O(Hl/DSltJroaA~InPt*ml

OIX ~ IBQBRIlng PoI~ talke W1lh Polish aI~ c M I _ ,

~lIlls,Blx'cIor Guarcb end;i§C~O;:il§ VijlO
I<njjWljlOii mMIt
lliO Uiilidirid fliljl1U1.
•
_
ere CIUClel In eatabIlIl1lnll.mlll

cr """"

i\llIlIlUlill<llllUoell''''.ll'' UllfK~llll'Clllfllllnded 81Sqmeny. T!lBfcll<M1ngllCl;lClUlllls
a ~ellon 01 losUlllCIIl!IIf fIooI our <:onldenllalllOl.¥'l:lM ebo"Ullese-V.
b, Afitvajj CItI~· .: $z)'tIIllnyJlbpoIt

,

I'

eacl1oll/l8Seia~_~U$\ISliyI8S$1han12~lnaMulce.byUlfAAlloooCll!l1o
Szyrnaov A1rpotl
GtBnJanIlfl. «a miIilIIIy
1nlelf1ll6llCO
offidllI,~~rr~asrmzy
tile .
Jan:y
of an .
·AmertcenJ!lilnft"

• Tho eirpClllll'lllnaglil', W!lo lIIIlInad Ihe tli
lJriiiild $l8lBt, was insli'IlcI8d
to IIdIierG to "lIlJ1ct ~ lD IQIln f«1he llIgl1la, lnl:IlldIl1g: d88l1ng the tmIIllyI of 811 0C1llr
alra'eIllllld WIIi~ end
l$II'IIlhol ell Polilh o1aI! _
brouQl1lln to llle temmal bUlcling

a

lrt>m thII w:lnily atlhalUTfli)':ndiIiiiij IO&il i8OOilIYOllidili ililCI iIl/fl&'flli\'ijllDY861

• Tho pe1Imolet lW1d IfClIIld$ of 1lwl altjXlIt_1IllUlld by mJDlllly oI'IlClll'l eno 6cln:ler GuMIa, !he
Ialt... 0 1 _ - . Al\lIStOr8d on • rolkall <IoclrI'lolnIlholilSla _
" ' _ pnlIll[lt en lll(Q
lhan!lw cl8IllS belween 2002and 2005
•
• Almli1_ oI'IlI:lllI$\\'om 1he noatby SIn ~ ~ lrahInlj bale 8SNMd "C:lnttllI" on
Iho ~ Jn~, arrMng In several peuenger _In adwnoB at IIle landing; .~
Anlo!1CW1S," lllI<l 0flI l"olIIl/l .wee IlI'llS4llll for -.llaIdngs, "a_lila <IrI\IllI'IIClf lila YlWlSI

atk~olttltrt ~

Q ..

~ ow ~ ."

w«8 M1ericans."
• A "IiliiQillliiiiliri" ~ American cmdal. wallad 81l1le edge ." Ihe t\IIWBy. in two cr lIQe
\'lIl1lI wIlhllleir erVnea _

CWJ4, 'Of th.1U;N f'='" 10 ?he
.. to
pwfgmirllJ b consldlNd to be
""*!..~ "ci:\fiiv( Of'*nlItwy.' TlI~ UI1IMdanld -Ng1ltl1"4O ~)', 'tlNl::h M Ci'ldntaml 10 "-va ~ ~ ~ at ~
fti;htJ·, -......d 'Oltir ~ge ~ ~lInd by "wIh.t D:~fr4nt ... 0apcal mb#-, gf Sts. ~ 8T8 tl.l1Qnttora
W'J'
Itricay ~ beclut. on~ or-nWd' 1M)' .llOW -..tatiDna tn:rM piaMId ~ and ClIltft,. ~ ~rt .. s...
E~l. U$er ~.l"
tl~ ~ Blneu. /FPS
~r E:lfaofI Ph 11.2, 3Q.D3.2D01 (J'MI~
·£utoc»~tFPS Vft:tt "..nWll1'. tv:tJlltW 111 hJo;f!fM.y'¢nuturo<;prrtrp(ij$IIt6ecticn60. '"8pMia!~. F1;hb(ST$r. po

...

at.

.,-.cr....__

th-'b.~r1byrM~al'
...... .a:M'Ottl~D1~MId"'HrJwJt*'ftl~·5ME~
IFJl$ UurI Uinta!.~.At.$...:tion 54, 'ST$lAFl'MEXEMPTA,PPROVSJ ~. f. $4..1.

MIIIs..~ndlxNl:t '1oIMptasltr«..-port,.anf*d'"ObIW.IrdCtAl'l!Ctl:lifIto~I\YA~~.·

- See Narty RItp<I1t 2006, C~ c( EWUfIf' 00c. 10957• .upt't not. &. tt t~ 2.8.2.

-no. CUll of Pollll\d". it G310 ts,

~~=.f}(J,It l<arol KIIBkt. Chtkpemm O,1tI. O_'-iCi::ln Q1'PoIamf to p~ -.t1tl.11tl'1 ~~fN Plc"tI)' 01 the
~~d~b2.008SUslon.StrlItoLIr;.27.0!J.2I):lS.

'''ld.trtDms trom.Mr KarotKa~ C~ntAO'ItP'olsh OMQ.t'IaI: to PACE, 28.12..ZJCJ8,

~

_

my_.....,WIh..._ _..

_a.0u007.

"'lAOltrlo ...... mU'_Kotald.~olhP_-.....
..
... WhonI'""tNl·.." " ' _ .. ~ _ _·llod_ll'-..lIltEP'.T01Pe--.I_ ... _

5<).1

"'~""""',,",""""'_oI""'~to_f

..

"QQ1"o:12fXIl'.I
__ .~""'."~0l\1'III""".~·J~~yo;rfo~Q)CN
_ \ _ t I > o.........

u.n

"' '"'" ptf1ia.llat ST$~arl.a4tytflgb!:llrltQ SZ)mIfry'WN "'AFTUEXENPTAP?'ROVED". Ao:ofdItlg to Euroc:ctl:lDt "JPlII
"""P'JO<ldo_C(",,,,,,,,,,,,u__
...,._

lUlling; lI10 elR:nIflloucl1ed down In Szymany encllll>led lD a !>aile!

I

,:tO:tlOO1
_ """fMIIr_toh

.

--1o

WI
----..,."----1IlO
""_n«"'
..
"...
e-.oo<lElnpo.·8HE.-_
....._"" ......;t4 .... lIIe_-Ily .. c.. ...... _ _ - _ _ ol..-lMo
....
...
~r:=~P:t.mtJ::;==;';.-ClAlIglIII;C'lIcIIlI>_.UI2.2llOT,_1I
-"....,;0t4Illo-..._ _• ..-01"",_.._ '

odopOo$ ...

by1llt • ..., -e.trn-.

l.l/IllfBD.""_ctA.... _ _

""'_uld~

tyfl>o _ _ ......

. . _.. . . .--.. . -h..--.. .
~-R.'~_CINllo

~12.=1.1I.112.RIo_.oly_""

bl!qltnwwstJ1o::lSll¢'1bmam'Q!n1'tw'm",nrlsS,Idj-qzQiDfI91'zr.tJQl"NlDlatgytht.nldtap:·..IIwodlIw~

UNCLASSIFIED

/or ...

•

L0345

UNCLASSIFIED

41

ASlJ\lt(1JlQ7)

:so

ASlJ<lr (2007) 30

<12

llle far end of tile rurmay. S8VIlnlI hundrad_ (and out 01 \'i$iIlI9 rongoj from ttl<> flu-s1or9y
tetmiOal conlTOl toNer

•

The vans d""", cut to tile far «ld of 1ha t1ll1WaY 4I1d pllllted a!. dose p ~JOlh! lI!tmIft;
officialS rrom wiU'Jin the vans WBm iiiO to J'la\i'8 L&idi1114 Vii 8ifChIft '6YGfV
• QithcuVI It 1I not
CllIIlTwttel/"lefany then S1ayod on b08f1l
.
• AIIllla oIlillE!ts etl3rp!!d w!l!J ·IX""'S&ioCr the D8~ on 1118$& aita1llI WllIll Amel1cans: no
POIIslIey....,ilnll.. hll$ yet comtl forwWd to 811118
r Ot jiQf any aetaiii.... dli8illliirie<llh.
_
upon any olll1<lSe landing$ - indeed, ~ may be \hat no _
8~lt\e$S to such en even!

exists
Howavar. llSl<ed whe/e ttl<> HVDs actua!ly flr4er8d Poland, one of
SlIIItl:tl$ ill Polish rmilaty
InleUll)ence conrlllTlOd !hal .~Wll$ on I1le ruTlNlly 01 ~; an01lle< said "1IlGY como I
Q1 planes and llloy entoTlld 81 this ailpo(r
• Oocumeotsl!on. In PoIIsI1. ell8Sts to petSOM having been "pld<Bd UP" lw!bel 1rellslali()nj at
~ In ~!.01diOn with et least lwo all<r.llllandil'g$ in 2003; \he dOCUne1ltalion
also refers to lllo dispa1cll of vohiCtll$ to 1he aitport from the mllilaly lJIli1 5lIllioned et 111& State
l<iejku1y facility
Having spent only a shOll lim& next to Ih8 aita1llI aftat
Ine side 01 tho terminal ""'ldinJl. wiIhouI st'
s~ ~s put tlte" lleadilghtS up folUlll8VQf'"aiiliirpott ollicill!s aay tltey 'lIlmed our
eyes <tNay"
The VllJlS then <trovol<lss llI8n !WO kilomelt8S o:ong a simple tatma<; road,lined by Ih1cl1 pine fcresl
on bolll sides. 1Ilrotlgtl an !IRla wllIct! was emll8lyout of boIIld8 to private or ClOITllTIOA:lIllIlGllidos
llulln9 lllose procec1l\l$, haloing baen fXlldOMd oft" fOt "militllly Ol*llllons"; at lhe <lIld of!tle I
tannac road. tl1Il vans ""veiled not1lt_ beyond SZ!%YUlO lor ~fIly 15 to ~CI mlnutel
bel'0lll joinlng llI1 unpaved _
madnoxl to 81_'"
_
at the end of tIis access roa<:I they reatI1ed an lll1lIa'lC8 of 1Ila State KiejkUty lntlJlligenoo II1Iinir1g
b.... where multiple soun:es have Cllnlilmed to me \hat 1IlG CIA I1eId Hgh-lla!llG De-..
(HVDs) In POland.
~

!tiS

200. The legacy 01 ~ IiIIO prog_ in I"c81cI l& pelpeb10 In .... ~ of 1hoM
PolISh CIlfidBls ""'" pMicfpe!Ald mill opwatIonll. The ~ of Irititluy ImlIill"""" with whom Y/fI
to be In clonIal ... lD w!lelhot _
d~ h >!olIlIIon at PclUn:ro
mmsn !1glllS <IlllIgallons lllld IIIIten place In lIlelt Cll\I1lJy, )111. on 8llCIlllflr leW~ lIloy owed II(lI\S d
rusemnent mainly \Ilallholr Ame1lc:lIn alIl8Illlld bo1rayed llIeIr bald d lNat by lealdng detlIh or 1hIt
plt91IIMIe. T1Ieoe oonb'lldIdaIy .~, oIIon <SIlIallt to 1I1lUge 8CCUIllcilY, 8IW eptJy CllpluTIld by
....1dkHIIng_
IpOI<8 seem«!, en ana laval.

"IF

Co

198.

SfICI'lIt dlltention ope-"1It St.In IC1sJIMy

TIl& SIIlngent

,milalions "" Infonnallon about "'hal Ilappemd 10 dlllainoot

.ltoppod-<)ll" at

SZymany arB peltlap$ the best example of tho "noed-t~ prindple of aectecy In p1!dit;e. Polish
officials wa", not invtlVad in !he lnI8lf09'lti<lrl$ or ltan3f"", of HIIDs. nor <lid they have pe"""8l
COn1act In wq>Iaitling his undotstlndiIl9 of HVD _ e m Ot CXIl1ditlons In detM1J1lll. one P<ltish
sotn'W!5ajd:

'I have no und_ding of detainee _
we", 1110 responsit<lities o/!he Am8llcans:

199.

we were not "lrn!lling'" tile _ _• Tnose
.

"T1JIJ (Shw KlojIaJty/ /Ia$& was ArrJoIIca~ ChOice; our /OIl WIllI t/IfJr~, If 8t1Y AmerieaIlIl
Ilara. /lIsA/llMcll'i l8$pOtISIJillly. M he IJIso becrJmfls PcI&nd'$ r!I~ too. $0 it Is my

I

mponsIbIly •

secm deIartllonopel1lllOllSIn

IV.
~

G'1

~wfIh mlI/tJIy~itlllonMtt1a

In RorNnla. after !tie December 11169 R~on 8lllS 1hIt ciainantl!ng d Ill8 mjll8aIve
SOCInI/aIlI In 199C1. lila I8fCmIa of .... JJQlUgence 8InI_ - . fOCUA8d, ~. on
BeClI\ly ICnldiRa. ~, nu:h of the
aublIequenl <I_on IIIN'<I demo<:nI1Je CMnil'll h lila aM\~ has tookod &I ways or CQrltrclIlng
'ns1ilU1lonal ac:latt allll8lldlnll pollliC8l fig!.- with llUlhorlly OWlr1hIt-..rty lIldlrltolilglln::e liomaln
wI1O(lis~ tile legal $liP\EllClN regan:inv pol!lIc:el ~.''''
.

201.

llf8'/8I1llnIl1he porltidSatlon 8lllS m.". of Inlemal $!II\o

B5
i

2111.. As I /lll.\III arllllysed R~·. 00ft'4llex lImly of <Il!eronl e;ot>:i68 Olld ~ \hat
coIillctinlBlllg8nce fOrllle 8IlIte,1TJI have ~ ll1aIP/1lW"MIl poU~ca1 MIlIrality ~ tneniIY one 01 B
.V8Iloty of ~ consIcIemIonIlhal aff8ct the Objoatvlly llI1d _V(lI_ of 1I101r BQOClUI1!Illlil
_ . In In tile _
r1I my lnqu!Iy, It _
to me lhat >M1lIa Romorla hu made 811_1
~dal el!OrlS 10 tid 13 dl1m lnleIllgllflCe aeMCe8 of tile BllCllI;8S d U18It SlX:llIUBte pest, 13
~ IlI8Chllllllms <10 llClIllO 1llr a!'lOl>gh!ll pr9Vet\t lila
ofv.tl8\ oouId tlo QlIlod~
on lb!t pot! o! "'" .....:iqanl- mlIitaly In!oIllgllllQ8 S<lM:ea 0lld1liiiWlGof
onea COIlIlUlly.

-me

£'1 =:r:-

203. Tl'is el'l8lysll oonfonns to lIle lNtlInafly cit 011" ROIn8IIllln 8ClO'C88, llflO lIllId IIllll !tie
Arnertcons cllllea to wadi wlt!l1I1lt mI1ltary lMe1I1g811C4l IBn'Icell, becIIIM II1lt mIllt.ry "COWl"
atfotdod ilia CIA lIUlbla deplOyment opllons ~ gIIIJ'UllHlO or NCnIC)' under \lie NATO
m-orlt. As lila rIlllowlntI c:omplI1son Show1l. _
lite SUllS1IInIiIl cIIpatltles belw!lllll lIle
ruapectivo montotinQ rned1aniSlllll ~ t/19 dVlien and miJil3lY~.

we we'" told the! sanior Nsh mlIitll!)' intelligenoe officials w!lo v.sited Stl!1ll Klejkut)' wmo

ordalad to ·,imlt rolallon anc:I operational demand. on Polish ollicer3 10 make the HVO progIlIIM1e
W01l<' Beyond this ~... ijng insight, howe..r. ""i1il..- Pol1olt _ Amel1can sourcas who d!JCUSSe<Ithe
HVD programma with us woud 3groa to ~ about !he OJ(~ "QperBIiol'l8l debllIs" of _
detantions at StanlKiajkuly. nor would lilay oonfirm how long II w'" Ol*llted for, wIIIdI olharlaclli1lN
wota used lIS part of the same prog!<lITlIM In PoIlind. nor haw and 1A1len 8XllCtiy the _ _ left lll&
COUIWy.

~l'-lMrt_OIIIoIot""

_

~"_·.\'fIClmIIIIp_N

..

af ... _,,-_.nd-""oI _
m._1ly1llo~_"""'_C«*oIaf_F_

"'1'1' ' ' llo_ "'" ~(lIo_.... - . ~of""'Il!)/_I""""
R~·~.p.n.TN~~'#ltt"""at'lC8anIlhouIct"~M:I.nI.'lfCN"rt~~""*,,

lDCN'l. _

FUNIl)'2OO3,

r\ll.ctlllwilikl~b'l~~

,

m ~ . . lIt 1IaI.~1RWCHtYIoIt In ~ MWtCI OIet-nhoaMd ~ ltIGMdu.lOriMrnnw1l;...----.

Th.og.....UIIlI_nut.-""....-.,.. tIlII •. - .

GlMIOI_"_w-..l
DGl1'If.. Illo"-ol1lll_.M!l... " - ' !

..._._,..,.,SlPAlIa..
_"""'.......,_"'''''_t__
1JIoI_
..........,

_(cwet._._fi._~

.w_.---.. . . ..-.. ...___._-.;__·
. _----*"___-tom-_ond
._.
. . _!lUll_.
...
OlWolly"_

_,""'~~(_...."....,.,

"'F....

El.<opoon_'''~_QlI

'""" IV..,'" _ l ·Ropalt
..... _
-...
~ of "'" - . . . . _ . 8MI11lo. soat:IOCll, COLo
_
0l0_"GN'lIIO·_
_
___

DalI2OIl?lQ01.'4.~.III"

""'~af

_ o t l l l o . - . o v . d , . . ~ ..

In A ~ ClfWf t..m,,-WttllthlroU1ll from 8qn'JllnyAipofttoh~ KJtJarttltltt!JO.:fCIIlRilnlllg ba".

....(aocn..

~l.-

UNCLASSIFIED

..

~._-

~""IMIlIlO"lOOll_

I>O

...

""'-,-1>It.

_1IOlIcol...

N <I•• 21 ..

.

L0346

UNCLASSIFIED

43

.phetQ.

A no1OWOIIhy aspoctorll1lll p8/II1<QIlIp . . . thel~~out lI1detllllt NATO
The dopIoynwlt et MK Air1leId In FttlNeIY
~ • MiIiiliiIiilIlm or
~nding
algnadll)' Presldel1t jon IIlKcu in 1ala2OO2, In lIitll<:h 010 llwms of NAT().SQFA and 010
biI4taI\lI SOFA.$lWonntoI __ ""PreNly
"NATO canc:apla" __ eppIed to the

204.
Fi...~ In !he CIVilian
Rornani8'e _ maln agenc:;.. or 1hft post.(;Qmmuriot """ the
Romanian {OQm...ticJ~ Sllf'Iice (SoiWe/1II IOmen ~ jllfotmalj;, or SRI) ond the Forll1gn
IntelJig~ Service (SeMduI tJe iItfOtm.1Ii exllImo, or $/Ei) Went createa under ~peclfic _ ' " and e
multi.JayBted ovet$ighl struclur&. wIlich pyrport to imrrullse them from manipWllion along pany.
poIitieellines. The SRJ ano the SIE opel\l!e inclependentJy or Gov8IMlert and ere t10I oubonfinateO to
the Inwmbef1t exllO.l\iv$. ~ llnl eacl> sullj~ ~ p5liamBfllaty GcnIliny 1/Ircugh dedical8d Speclal
PBI1iamentary Cotnmil1OG'.
The SupttMi CUUheb be NifiOnai OifiiU!e (CQmJJU Suprgm de
ApaTare ~ Tatfi or CSAn. Sl1 Q1ll0n0m0uo aaninittrlllive body ~ by the llOJ>98Itisan 0IlicII 01
the Pmsidon~,n "'Vallis.. and ~U8l1y~ !he ~Wie$ oIllle SRI"",, the SIE, in lino wIlIl
its mandate to tx><lll!lnate the 0VllfllII national security end dafenoe 01 the ccuntry. A3 ~ Ule
posSill<1iUes ftlr a handful of people aI the I'o08tt Of Government to _lila SRI tr 1/Ie SIE to pursue
tIleir own pel$Ol\8l, political or ~lI8legic egonda "'" elCl:89dingly naIIllYI.

208.

~

B5

ACCMfUlg to our

=no

wo_

_n:es.

N; Part of a wider rasll\lttlJl1ng of tile OOIA in 2003.''' \he 'JT ..,~ _ d In acope BnlI
impOrWlC8 at a very _\logic moment in Romania'. Cl><OponlUon will1 the U _ States, justll$

207.

American ~ ware de/lloylng Into the counlJy in lorge numI>ela to lillmCIl tIlelr _01 rnlaslons Into
Iraq for OpetaUon Iraqi Freedom. 'n The pl_ at v.1Iich tIless US fCtCas ware sl81ione<l. the fI(/' Ah'
Force But! at Mlhail KOl;llnlceanu AMllfd, 111 btla1fflU uty mustS1Q:tdUCWQ pblm Ui tri8 QStli1lij f&' 8
wiLOI9 '8ifJ& 61 MJab6tilOVB aeaViQQil,i a partnership" between Romanl.an. and American per.tClMet

210. Con!lnuity In Il1a evoMog raIaliona~p belWoen Am«l<:an and RomanIlln _ _ (;81'1 pelflapI
bast be JJ1uIltaIad by ~igII1!ng the roll of lhe 1hel'l Head or tI10 0iI8c:lalltlI of Mlllillty lnllll\gllnCl
IIld Rapres_1Ion (SlIt aJ CiJvt:t/tiJ dB 1JlIrJttM6i til Ra_tn MIItanI). SlrQtu Tudor UaclM.
Genfl<aI.UIIIlanIM1t Madar _
In the Urltod SlatBIIot _
yM1Iln the 199Os, M3dng 1111
0lliQe 01 the Rornlri80 DefInao AUao:fle in WlIItinglon. DC d
1899. EletwMl2000 and 2003 he

haaded 1111 orlginaIlrama1lon of 010 !llreClonIta 01 MIIIlaIy InIellIgence itllhe CGIA; 1hel'l fr1Im 2003
.nil the and of 21105 111_ Head of lhe _
"rr Ura. Ganeral.ue.- Madar W8I •
pmdInt cholce lor the CIA u a llaleon for aacnt delIn1lol1 op<nlIona In Rornarie: t10I 0f'I<J waa no
UU8lad b9yorId _
in both US and AATO ITiIllwy drd8l; he WIll aIIo. .. the f\llICWIng lp)lll
8lI8It8, _ _ of the poIOntiel pal\llof poutneIlng wtlIIlI'iIilaty ~ to actl... III ~
poIltieel goo/:

J

"Tlle cNili80 ialIlIlnNP" tonclellcy InUllng lit conlltll CMlI'InIaIligonea far pol1#l::aIlllJIPOIOS II
lkely lD be_ bigger lha'Ilt& de8R to kelp ilII mlIlt&ry component unclor IlIl1ml conlrol.
Some aq.ilibrium must be eSl8l>ll8hed llItnen the proflUlanaI ~ of l!IlI MllIlSty
JrrtaItlgence S8MC8 II1d the 8UlhOrily «lila cMiaII poIi6l;:d !MdarII'Ip.'"

lrtFqc bSA!., M' 1M Uwont/!. OpNatlkJn .,dAmc:bonirtgolhRarArRn lnttI/gfnc.SfIf'IIite (SRI}.""" No. f4'1Oln:
form. ~E. ' " #l.I.WOl1.tJ'J. ~andFuttdlodrrgd".FoIttJgtJIMtI/grn»S. . . .(SlE}. !..-wHo. tNesa.
m for 1he 8A~ .... :tw D.ci.;on ofth.R1:JntfJft-.Pltlfin«Jt Cltt/b!t OfoMJution flndRJht:iktnlfJg¢Ul.JollW~dlhe
1M ",. ChIJttbel 01 o.pufM' 101' P~lIIltwy \NnIght rA CM ADtnft", Intal6~ ~ (SIU}. Otctllon fiG.
»'1883; fof 1M
tN ~ of 1M RomeN." PIIIf~ -on :.. 0fQMR1lJon . . ~ 0/ JIa SptWeI
~ ~ ~""*"Itet"J ~ '01 1M AnIgn .w~ SANk» (SiS. ~ No. W1;ge tn4Md,. ICKN
co~,. MY that 1M II'ICt'tU.dht1Jptrancyand Dl'I7'Mng: put:iictl'U$f: "thJSJlI W"8Ie¢.Wta:t~ytD1N*~iU'1>1

SsJ.,.

_ " " _ , .. fOlt .. _

are.. •••

fa=-

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f~~==~~rI lMm~ottMCSAT~:hP~t.I.iNt;q((V~~tMl(~Qt

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2.03.2004,_1001

; _ 10< .......... ill Ir>q ..... _1>iI F""",e--MIlaJ~._~("'-'KMto!o'),_CO _ _.
AcoCIFlS'ng \0 ~omeN.n trtiftIry ,.,-HIM" at tht: ur.~ Itt4 dtpll1jl'Ntlt ttacMd Vf »·$,000 ~•• et b PMk. alb4!I: tNt

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...... UMCItor"'putpoAQf~aMre"l~

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eit dopb)'rnlf'lts bIItm. ~ .~n In Ih• ..". an Jrt4..
At tJ» tlmrI ct Opftti>n ltIql
ttld up unll 27.04.;UXM, ID( wtoo4 Oft l't& 0Wft . . 1M 57th ~ f'0l"C»
O'I'~..
RcmanilM Nt FOIW. f'l'VtI"I1 0$2004. th.~~'" ~tOa HM.-& II« WM "«Mndl'd'" and RcmInImmRl1J*'CJItk

ea.

Co'lllol_llllllary

...

Ileppocla.r..~

UNCLASSIFIED
L0347

-~-----'--

.. _ _

tM_"_hml3t_F_~"1Ilo_o.e""""P,ocE.:lII

IOIIOl1lO\lutMMnooy.'OOIonool_ _ 1f*Wf)

~t'),.

bOC'l the aMlilte.and ft. Ch."**ofo.pt.tSnofC..A~J'tJ'Iatrw.lIn~.CleM~va""(C~ft'llFn
lheltdr.WWQtt.oId\ttDGlJ.ul'kM'.
_IZ S... iv enf1Illl'f Ooru O,.;onit. ~ume.n. tn tilt Amtfl SRt« s.na•., BUIOllWat Zm. 1t OC,~3. tt p. It. awltltbf.
Ol'\in. wt bmtl/wyPw " ' " nt{.!
'lQaebof«.t\F'~~JuI\.2OOJ.lJnb<lsatuAlmHfanla~U1oJu_grouDdIra.)4tpb'll4.ft~

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-"_._O>gollco.~

~.... allo K.t:oly~bo,. '1l"~~oflnl'»a.ntlls.Mon hAOfIIA:l'1a,·~papw~-tby

tfl, OMaw. C'/f,t4 b 1M ~ ~ or -""'td FOn:aM (OCAS=). C1e1hrt11 111 IN 'MDlt$IT0JI: O!'l
Pldl."niIIttalYOYanJght 011l\Wl1."~ACl" $.~OM·. ~ 3oS.,0 2002. ODf!Y on filn,Chan. R4P;t«t:N.

~

MK _
_
_ ..........
I1In6J ....
1bt Al:ti:al
Part_
or ho""OplmalI".
NJ</E._
ml\4l W
MttIIllIOI
FW1 tJI EmMrtatkn. Und« NATO e:e.-F*!
hM

~

E~my 4r/id COrTr'IW"- ~~t4I. J\I~. Int,tIct 11'4 ~ Rftm'l. ttld
~n; ttl. ~tUcn of
VI. SRI aM SfE~ tM P,nldenUll ~ on Ne\OtlAI ~ .,4 . . Chltf of o.n.raI.&td; • • Ute CSAT 'Mll.b It
tt1m;JIQptRfCSldgrx;ytpl
CSAT 1) ,~.t.d und.t. 2QQ2: staMe - Uw No. 415120fR - _ Q ~I . . Ih.!T'M1wM
re.pcrW<ll'llllWWfy tD ~t p~ Conmltte kIr~. Pullle ()RNr,,~ !~. For f\lttI'Iilr ~Gll~

Oott1tOlr.

..

~~1rIIm~.. lIn~dtbellSth~FotaIe.r.~«t1tdNeuNlll:lttlN4.s.IIIa..,HiIIOofIt«

~"'p.l.IMmtr.tary*OeO\PlC.lM'fyrNdlantsmll.S".U~if.WIIb.~ot8wamtrt~~bRoml~~
"RCtnat\I.·.. Um;..pt'UldUltW rytC4n'l 1'1... prOWl' ltMJf W1J1Illl. of ~ "'" O'fWt.. ~ ~ aNI ~(~ G1

.

209.
M8Il'bers of 010 CiI'llc;ttIrata for Military IntelIigenc:a. 1IlI "Jr unt. partIQpaled In l!IlI Jolnl
Opelations C8ntnl,''' VIlW:rI - iii 0Ul Amarican IIllIlI'CIlI oonIinned - arso nIClIIV8d -.lslt..'" trom
~ oIlhe etA'l CooI:llerIamlri Cantre (CTC) baIween Falway and J..", 2003. 'M1Ue 010
whoil ftllJ'-manIII petlO<l of 0palalkIn ~ FIWdom allolK AIrlleld wei etlarac:lIllI1Ias '8 ll'iIt8IY
llClM1y in Il(IpQtt of a rRIllaIy qlllI'Illlon,' lhe. roIallonsljpa fanned IIld ItnlnQlhanIld be!waM
mambenl 01 !he roapodiYe 1nl8IJ!Q1lI1ClI tamcea - both IncIMltJoIly and ooIIectivaly - _
JUSt as
il'dspentabla In 1111 bIoadar aonIIlld or 010 'WfIt on temlr.'" The ~ waa construed lIS •
wei"""'" °dryoMl" far RomMla In NATO _ for JlC!!OntiIII Mi!ii
@DI1II bilWe§
;.---

the relevanl lllJt>-uM 01 the OGIA 1Ilet
with lho CIA on Its
operaUol'lS was Ill. Dlree:tonda for Mllllllry lntdIlgence and Repraentatlan (DiI8cUa
/nfOmllr1ii $I Reprezemare MiIil8f1J. or OiRM), "'so kncHIn as lhe •JXJ,Inlt. TNs .m was nat IlMllved
In 1tanspo<ling, holding or iJl1llmlga~ li/"J delaj_ "'; aince lhase WBAl tasks pert'anned sOlely t11
lho Americans - but, llOOOI'CIIng to ono Roi'naIll.-. oaioer. 111& °J2"' ~ 0a><lpol8teCl snd adjustll<t'
to secommodale the etA personnel's need •.

206.

D

~ inc:luclJng ~ desilO'18l!on 8:s 811 APClO f APOE." and the phase baircl- ill as
~.' Moat Important 01 all, a JoInt Opatlllo... COIIlre was esI8llW>8d in wNch AmericaIl
and Romaroilln pcncmoI "!'rem eac:ll and rMi llrwdI' of Ihelt J8I9lOCl/vO armed Ioro8s end MMea
WQri(ed 1Dgelher a1de-by4id11 1Mlu~ thl 0panIlI0n. IIIariog operational ~ .. WlcI
a=nIInce wltIIlIll NATO SecIalty PolICy.
.

205.
tn ccntrast, intellige_lJG~ in the mI1ilSty apheAt Is a ~ fomlaJly 0 ......."" by
lI1e MOstry of Nationsl Delonce,''' l!VaJgh its Genenl Dlreetondo for Dolence lnteUlgenc:.
(Dil1ldie GencraJa de InfotmDNi 8 A~~ 01' DGIA). WllI! little p8I1iament8ly Strutlny of dllflll1CQ
intel6gence i. supposed to 8l<iSt" eerlairly dOOl net apply to its Oflllll'li$ationaJ. planning Of
operalional aspects. On lho oontofY. GIllet e<ll'/'IIllltibillty wIlIl NATO $1lI.ICtunls. Insisted upon lIS 8
criterie for NATO fIC:COsslon. mean.lI1at 1110 majority 01 Romlrillt\ mllila,y Intell"\Qonce aetivilies Ilnl
kept seer., trom all but \IlO"" Who "need to 1<rloW'.
clsndllSline

«

AllIJur (2007) sa

AJ;IJvtf,lOO7) 38

-

. -

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AplI-' ". 1$<74, CO" ...

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UNCLASSIFIED

47

ASlJur (2OQ7I ilG

Nonelt10Je0. we WOrt> oblo 10 c:ontirm IIle <IppItl>dmalo 1lord0l1itl$ll 01 tho a A ~
~m:. for its S8Ct.nl MIa in Romatia, we were aNiated by • 00WC8 to IililltaiY "'taU,
•0
. ad map and an .Mel< 10 IIle _ . Agreemant of 2005, In .....idl rofenmce is mllCl. to
'1acifiUes"'" generally ll/ld to otIe relevant"lI1IlIlOC!l.I\1 erea' in partiCltar. m Our souroo used ~ 11g!rt
inclolc linger to dnrw .... in>iaible eIIiptic8l perimat... on IIle map. WhIdl '-1llP&'Sad a vertic:al colulm
between th9 fSM:n$ et T1t1Caa (t9 the north) and Cqmtanta (to the south). as..-eu 4S an area extending
Zl3.

approximalelr..50 Ialomet"" irl8nd (lQ the waet) end in IIle oppoo,te dire<:tion 10 the S!Ilc;k Sea coos!
(10 tho east). Retening to tho role '" the RO<ll8lUn ",)2" Unit in ouppcxting bilatareI errangemel1l$
wi1h the CIA. our source said: We nave /0 setlI (/hi$) entIflI_ 8JlrJ liIllit 8<Xl8SS the"'."

224. lno sea.m area irl quostJon IndUclet """'rei eutenllllll\ former miitaly il1$lal*ns. lnc:iuclinll
all oIlhoso IadIlU... Il3ITl8d In the ACC8SS Agmamant 01 2005. W!ieh haw boon used by the United
Slaun under a "sp&dal regimo olllOC8SS" linea late 2001,''' Nonslhal_. IIle main ",a""" that I.d .
one of "'"" CIA SO<JtCO$ 10 $8f that hl$ "guys were famiiar with the arua" was Its inelusion of the
landil1lj point at whicn acxwes 01 <:Ml and mn~llIY ftighls canylng Amaf1can seMce ",""Mal haVII
landed lI1""'1lhoUl!he "War on loorO!": Mihan Kog~ Aitf~.
225. In lhe light 01 ell tllet I h8vu said _
ebaUl MK Ailfiald, I on~ wish to _
ollsntion to one
further lactor that has made ita VIInllO so oon<tJ<ivB 10 "palln8Mip" wilIllhe CIA: its "dual'" mililllIy.
d\iUan character. ,.. MI!iIary per$OClf1Ol WOl1<a<I lW!In8ly wilIl dviUan PJt TlIlIIle conlrollets iI\
procoMil1lj botl1 dvil and mllils!)' nigh'" at the AIt1!e1d - aacn accotding to tha applicable ovia1ion nHs.
The 6}'SUlm used at MK llilftekl beOI$ QI1Illt similarttI.... aIbeIl on a much small... acaI8, 1O lhe ey$lem
used lit Kabul AlcpOl1 (OAl<8).'" wtJidl beclIm8 aucI1.1W In 1h8 c:ontel<t 01 ~tion JTlI"ltaIy llCtMtieS
in Alghamtan and smultan80USly a d6stineUon orc1apllt1ln poIntfOrmulliplelcnown tendiliQl\S ofClA
dal3i1108$ on boaI'd dvifian llirtmI\ ainc81he start cI tho \V8I' on lemll".

228. CIlnng 1Il$ porlod c11rllerust 1O my Inqully - from 2002 tlll\il2005-1h8 dvillan leC1lon 01 the
MK Af1IIeld had a Olreclor General With • tcnnldalJIe "duar l:iviJ.<niIitll c:/lanlclar at his own. RId.
Colonel M!",oa Dionisio was a fgorn$T conlroI1Ing Commancsu orUl. military A1Tf<l~ 8 ... at MK
All1iold In the communist pte-19a9 olll. H$ celumed II) Ihe A1l1leld In 2l1021l1lCl beCame Ihe OIrtC1or
Gotletlll or the civilian airport. now _
as A8mporluJ lntem8l/OJlal MlhaU KC{Pllni:eanu.
Con,sllJ1Il8 (A1MKC)."· RId. Colonel OiQI1Illo alaY8d In l!II3 position until 12 July 2005 and Itl8r\l1Ille
ovotaOW 1M bUk oIlhenights Into andoutollho MKAll1Ield. tI1aexaet movemants oIw!lICh-lISWtlU
as the>- cooneclions 110.ClA detaineo tl1In>fvts - my InquiIY has et1Jlmpled 1O ~

~

Mf,Iur~OIl7);»

II.

rnrnmrof_~_RoIrIaJA:~l:OVW-UP"""

0.. elIOI1a t<> obtain acanla ~ llight _
poNlnlng 10 tl1e m o _ or ..m.ft
lIIIoc:ialed wi1h lhe CIA In Romania WMl d1atade1i~1lon,lnoonalll8ncy and geRinG
~on. ~ m~ beFl fhiS as:sesttnent. tv«iiVW. OJ
iTIj WlUdtJlWi iliiJ da &iiiCUiii
In';-Romanilln Delegation III PACE _. in P'If1laIlar. Ila OlaltPbOll Gy"'llY FIllndII. fOr
dt!monslIatlng ~ goOIl fallh and P!*'sionaliIm. lind fill" Dldending !he "-Y best of
co-opoI8lion and _ _ CD my lnqliry. It '- ldollu1eIo ll1al 1he flom. . . 8lIlha!IlIN _
gonen>lly Illd noImatehlholeYele of ~ lind ~ allownby tIU DellJl/ll1lon.

227.

228,
Spe<iliClllly I hokl _
prlndpa/ ~ wth tl1e 8PIll'*" d. !he Ronwolan lllllhortlloa
IDWenls lila lllp8lllll<l alogatiOns of _ I llelt!n\iQno In RCll'Il8lU, and ~ my InqIAty In
panlaAar, In emunary. rrrt oor--... ate: for..-:hlng end ~ ~ In Romenlan
1UghllWl aIlpon _ ; ll1D ....~ and dof!n!lyp pgs!Udng Of !Iv! noll""", MJ1lomon!lUY il)quli'y.
w!'Ictl stopped shott or gonWne InqLlSitivaness; lind 1h8 INIItenca of ROC'I'laRa OIl a poSiliOn d.
_ping. eatagDllcel del11l1 of aIllho alIt!gallOtll. In tl1e.pr<lCN$ 0VlNI00kIn0 exlJlJntlYO evidence to
1h8 conll1llY from volUlllllo lind creclible 1Ol.I'QiI.
•

22&. Fi"i I waa oonflllM1rJod by lila o_lncoMlatancl" In lIlolllghl dala p<O'IIdecIto my InqWy
from mlIllpie dlllnnI Rontlll'Ian ao.rcea. In my ~ I haVII contidtlnld dala ..mmtllllcl cIIaclIy
from tlln RometUn CIvIl A8I'cnllollIcal AulhorIty (RCAA). ttl' dlIta pro\'IcIIIcl by the flomet*Jn S8CIIIlO
ComniIl........ and d8lllgalheracl ~rdenUy by_lnm In the _
"'ita ~ 1have
~ lhn dala frQn a- Romanlen oot.- wtlIl !lie racordII ma1nI8lned by Emlconlrol,
CXlflllRIItenaiwo ~ "dllliI $llilg$" ~ by tl1e II1AImIllklnaI ~ pl~ IyIlnm. end
my ClOmJlkJ!'.! Mal1Y 0alllba1e. The cliallgnlemanllleMen v... to_ Ii IIlo fWldamenlaI .nj
wldeopr8ad'-lO bB lIlqllaln.s _y by ~e ~91ldlN,lll' - . by kl-1IIghl cIIlrlQH of
on by~. v.t1IcII wenI ~ 1 D one ~ lU not to anoIher.
l1Itlnl presanlly 8ldSll no tNtI1tuI occ:ounl Of ~ tranmr fIIa/D lnlo RomanIa. *1d h
tlllllOll for Ihls 8l1uaIIcn1llt1atllla RomInlIlflIlU\lllXlUt!$ ~ cIo notwant tl1e1Nlh100lllIlDllUl.

~

fit TM 1o\l( mltl'*t tllcIllI••• tt .. 1oIlaMI: 8tIWd,n r,.....S1 flar)g't; 8UI4&g 1'l'UuaO ~. ami R» tilNtt J.U'lii
....ni:unu .... eau, co4l_..lt!l 3oI.....
-..ndClnmllltJolngRongo.
1J. a.. ~Ann''X A- F~n', eM fnt 01 tIfiJO InMY.lO Cht.-.ee- Agr'1tf'I*d ~ ~ end tM Unbd Stela,
e.12.2b)S, el J. 9. Und.r W Jut Olafow' fI&I'IW4 ~. CMleu T~ ReAft. tt..~ ....... d..
bI1CM'1: '~riJ" of Il'UI .,. TtX.. enca Con~ COUl'Wt rJudtbsr n~). balt:\dd ~tr ~ Ul' tl:JlM'lI C1'
Babada; kJ tht n«th. Btli'M., T,..w,gMa" 1M ftlt, Y.rMtde '" o,.lloOUth.nd Ho:rt.,"tM..n·

0'

"'_SriQ.....

,.,e.ct "

II1btQttl. the p.l"itMt.riM~•• anatM ofllbcxltl,!OOtqU.,.~a'tatr'Soty4ft~
~".".....

~r:::~~~r:=.r:~~~r~-:=~~=~:=~~~'"tN.~M
IGm"IUi.b••nhI.d·Ap~o1CMNATO~"'~~·
... n.. oM' un' cI\If.d:er of UK AIrfield. q.... bldl &0 1;6t, ~n 1M R«Mniln. JhIimy cst Nl.lioMt o.renc. hln4W f/Yfi
1hJ tQJbltMV .I.montl
&11114 11> ~ tWt-1'l 'llthortlies of Contbntl ~ClMl Arpoct
Nl'\"fl"I'Y I ~ ~ b
~t1kln; 4:p(on.· tot toll kg:ht and Nt;vJ 'inn1t fAt ~eJ tt~ ltdJdlng tht Nt T~tficl cacwOl TOWIt; m:I tht rnlin
.f'I~ I.k< pcintl. frum Ul. '''Jo'cet I)IgtfWay. TNa "'~J onattd two ·.ttdo".. on '" UK Altfle:it • arian MCtiotI
and, triW., HCGon. AoconIInlJ m fNI ~.iOnJ1'ftCft RonrIJ\Wll'l"llt'lilty pemwleI stllklaed et the UK ~ '1M cMl.tl
Il'Id~It'CbONIkUp on, ~tft'lfotttltdotl~"foropttMfllJ ~aon&(";' uaottt\t NtnW)'}.nd «ra ntord~
O.S\S:Th".pttlotU1'tltOIOUSI:flal·~~.".b'(~tuIN
• ."st1)lltl.a . . oI£h• .m.n~loIfM~.&fl:N·'

of.,.

"'t

dOH~DoOnwithtMarifClt".~

... It Is •

LCtJe known flet that R~n personMl ""'MIN ud op.m.d ~buI Nport as OM aftt.'w I:u.k;t In tM ~ of

1tl.'tNATO"p)o)'mtl'tt2004to2000.O\a'tnm1oPCb~.~rrMIt)'oml:ltflld'lCt'tillft1t'eOl'J(f"c:lUidfyft'ClmMK~
toMIWtl)r1.....~mo~ .tOAKB.

.. D.nota;I 'trftM ICAOQ;lq.'"1,RCK". Mttop«fII lIlftrnllftonfJIltlMJl J(~u ConslwlU:VAtItC) illIlt"*M MMI of1htl
.LIpcMl It ......, ~ c.l1t" $kfl)~ Mtopqtft.lrtWm6llonliCcnstanta {A1C}, td--:c::ontll'l$$Q ib WltW ~GilMRI­

tDakon'lrlaW~UKlnltsnlttll.,OtWrtaMn.Pf:hrn\ha·""pW:ific:it(~byU.fTMlGi.~ICMIJ'ClAft9Q
.~lDy hlVlh9 IIndad at MK Ab15t1d. Utla. ~lonfN'WtI1 tha 1m ~t.Idw.f ~f fttlfNnia and - h lIll4iion trl1fl. t.IK
An1IekI ... &Ito gavt; his ",,1M trJ • t""", ~ $0 ll.ilotnIWt Mtth of ( ; a s . , . RQrrJMl.~M
wu. 1M
tCMl1 in h

~tottmt*"wu.Y,*fitlI~ation.

m- a

tnt

~:r=-~~::"-b~=,Q:m~"%=S=~~

W_._.TIlo

R....nlln 00Mgall0n IbPAa. <hW24.llUllOIl..., 7.04'-'

*lrle
CCltl"I"M*
co ¥Jtokh
I rIfw _
61 ... -at..COfM'ltI:M
of ~
II) .
~ 1M . . . . . . ,t.Ul....,;."No.2lI
. , . . the lIM of
R_
_ "'Q\
_
" ......
Dy<;...-...
_
of.
b\l _ .. u ... _I"'IUlr1-.....TIlo~
...... 8~
....... P_oI_;ZU2.:lOO5 _

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................ &.ouoo,~_·_~ ~ _

~

G.m.2lO7' - _

~~r;:rG3~1~::="'-=~'::=qf':.t-=""::===--..::r.=
_ _""""'_hIoolIoO_"-ONIlIlo..-""l
lROUAlUj.

. --_.. --_..

~7n~~s:r::'==.~=r=-~:.~.IhI~qf.
........ ,nq"'YC<N!'fttIoo""""' .. _ _ - . . . ........ _ _ to _ _
_
"... oI~._t1_~"3W'.N;l7iPtM_1'lIt_1_"""' ...

_ _ toY ...... _ _ UltM ..l o l _ .. _
-myuII_._--~-_
_ " _ _ I _ '_ _

",s_'nqull) _ _ o t _

..'''*U'.. <IloI .. <lI4f1Ol_ coMOI, ... _ _•
l

V ~ " _ r t I o l l n Q "

UNCLASSIFIED

tlgIll
"'I1Ol'--"_

L0348

UNCLASSIFIED

~ur«l101)38

49

A$MJt«l107)M

230. I IoutId it e~ly <lioappcinling lha l/l$ SonalO l"qulll' conmtIe8 dl_ IQ ~ Ira
manclal& In the n\1h... reWi<live teImS 01 defending RClIMnla 8iIIInst Ville! 11 called -...nous
"""""allOns against otlt~, based 1OI..!l!Y on 'Indlca!iO/lO', 'o®!Ol\$', 'probabllitiea', '!!!drallglll!ll'm'
land} '109ca! ded'ldilltl$'- In patlicUlat, me C<>mmilloe'a <:andUolons _ not I'r8med 8$ echoronl
M\l!i>gsDal;edon~edJve1a"t-finding.bUtl8_as·dear~lolhe~q_tlaMl8l8ed
by Mr Oitl< Marty,'" relerr1ng to both my 2006 report and subGequenl ~once. ~
the categ<>~ IlaUll of II1e CorMlII!ee'$ 'G«1enI! ConcltIslCl\$,- "C<>nclu$ionf based (lfl field
_gallons """ 6Ite v1slW'"' and 'FIll8l CoocbolS!OI"l~ camol be sullained. The CommilllIe't
wor1< can It<IS be $elln ... an 8J<lll'tl$e In denial and reblJltal, wl1houl imparllaI CCOllI<lerallon of Ihe
evi<lenaI. Par1i<:W!l1y In the light Of 1he material and leslilTIOIlY I II8Ve received ftCm s _ In

50

V.

Human rlglla _lnYolw4lnlhe C l A _ d_JlI'OIl&I'IIll'

L

~lItepeop1fthMIln a-.tdRMt1Dll

232.
TIle policy 01_ delenlicn$ and _tiOna jKnued·by tile CLmlllt US ~ baa
a1llIlBd a ~ ~ 01 deIunarQatllln. ManyJ!lIhe people l:8U\Ihl ",In Ihe CIA's glOblll
apldel'a
are lfWIIy descl1bel! as 'gIX>al ~ beclIuIe they ' - been made InriaIbIo
formanyweb"" _.

233. Meenwl1lle lhll US GovIJf'M1enI'. desaIption$ d IIa c:fllWea In 1M "Wllr 0Illemlt" can my
aerve 10 ~ \his dellunBtliSlng elIad. TIleAdmlnlalnlllon IllUlIneIy Ipeal<$ 01 'llIIetls', 'doadly
enemie3' sna "fao:el/IU lIlfrOIlsts,'willllhe a-Inllnlon ot doh\mllllalng Its delainl>oa k11he ayes ot
lh9 American popUstlcn. The NGO~, fOr IIa flII1, CIlla th(IlTI.gIX>al PflI-.r.
.

Ranania,!he Cornmltleadolls nolappeal'lo hIM! engaged ina <;IlldJbleand OOl1lJl'lll18nSivaI"'luiry.
231. TIla Romanlan national delega*", lG PACE, In _
ca18fuIly VIOIded reply, rulod oulllla
-mslanw of unlawM CIA al:llvlty,'" and 8jlpeared to olfet prospects of CXli'1S1lllCliw encl V1Wpanlnl
in the seateh 10<" th& tMh. How""'" llle Romanian Gowmmont and Pllrllament have
pralemlCl to kOOl' <:onIJ'OI at InfOlltlal!«l by dif8ding ~ lhrough 1llG senate Cornmillso."" sna
ultimately revenoo to ttlell' InlIJaI position nl """'l2ele denJal,

234.
Ely CI\lll1lCleriIi the ]l8OllIIt llold In _
de*Illon l\ll 'ciIrerwll' 110m us - not'as llumant.
llut as ghost&. 8lI1lllS or tam:xf.sls - h US GcMln'mlK1I friGs la lead us 11m Ille 1nlp fit lIiIlkinsl11lGy
ase n<rt lika us. they Bra nol~eclS Of Ih8 Jaw. thetefore lhoir~ ~ dollCll ~~cn.

~O/l

P1Bsl<Ienl al3ll11as rald ltis trap un ll'JIAlIple o<mslorls as 8 - . . Of ~ a1l«lllCn from
Ih8 lllKISlve a:n:liClon$ In WI1ldl certain del>llnee'Iln US QlS1llCly ate bGil1g helcl.t\' OUr IelIn Iloald
tirIt-lland hOW dWinI:llcm _ drawn III lhe/l'bld at QlIllItIS enclli'1lenog8lCtl: In .. inlllM8w willi orlO
or our CIA ~ who lias 8X!er1sive _edge 01 detllinee II8lllmenl we aJcell1Wllather II IalOWn
fQIm Qf detllIJ'Ioo> lIlI8lm8nIllwld be <:OIlllIdenlCIes llllLaMt. "Heml my qUUliCtl." f1IJlllO<t_ 8OIIllO.
.~ the guy a Iamlrfilt? ~ if Ile'$ a /IItIClI&t _
I ~"e fIOlll1lat _ comlntIlO hbIl, rve
mot JJ /QI oftillml /UKlOTIlt /Ilhlg I *,-far~151h1Jl they aJnt _-lIIey II/IIT fhJ)W and mo,' '.'..'

2aS.

'.'

.:.

"

.....

Yel what lias stn.ld< rna most often as llla'/8llX811l1ned 1he cases Of &lXI'Il8 c:I pooplo hOld In
_delentIon-lllmOdwhom I ~1ll8t-lalftdselylho oppoail8: ll-. ~ Cltd8lIIallave
alIeclecI me proI'lllIIdly aa I ~ 1IIwIIy$1lIOUghl of Ih8m as fellow Ilurn$n Ilelng$. TIle went CIinlnBIs,
IMlI1 lhoso 1Ol10 d8aeM1lhe I'Iatalleat pwilI/lmerIl, _
be ~ lun8ne V8lltnleI'lI end B f8lT 1IlaI.
1llls, _ _, Is wh8t malt.. us a l:iviIIsad o«:lely.
236.

II Ia for Ihes8 nlaICllS lh8l we _
lXITlbIII IlleIr belng ..., as. 'Vhc* ~ lly
tllpea!e(ly poIn1lrc Oli lIlat perIllIII de\lllMd In ll\ll ClllDe d COI.lll1IOT-.t cpnIlons tlAl S1d

237.
ZIIl

s... Sen•• ~\l't)' Ocrmnt\M #!inlll R..pon, $.~1.2OClf.

llllllllln l1Wllan b8lnCS whole Iul18TI lfltlla nutl be pnll8Ct8d _ who . . eI1lIUGlI to Iurw1e
trea1menl as laiel down In 1hIl ECHR. In 1I1lI8Ildlon of my lllPQl11 hIIve Set QUI ~ 10 p!Bce 1he
llIl¢asll nnlh8lunan aspllCt$ al1hIlIG people helclln_IdIllIntlon,

~~MC .. 200. eta.pW 2, ~ltmnc:a 14 RCU'Nnifit • ~.s.

'" 8HSenat. tnquiry c~ FW4l ~.p«t, 5..03.2001. talsn ttCI1.2O(I;~.netll.'1"CIlapWr $, ~bnI ~byl'lll
Cclf1\"l"llfte. wedel'" CJ.d~.andIT)tInltCdllllac!Mie$-: 1tt4t;1tdle:t.t.ralpqn \0,.11, t2.td 13,
m SyWl'jotc:arnplo. 'fMfntgt!'Jr-lwnWlton.tata1 c::a1lfl,goric:::dr. "N.Wthw~RDrranlilnCMINto~~na'tn'l
DtMt'~Of.uud:JJl"Nct""~nW4tll~ntft.C1tMfJa.U~"tr)'thtCo~huln'J~

_bout: CI'I'II4Pl ~ o~ Ot ~ by tht etA Ql' tl)' -rt cmtr oruroatI1 en bltld or r. aAo. Iuldin; or1tilnO 4rVtf
na5ont2ttm".oty: tlJdMt•• 19~'0m Tlw CorrmIttM rule. aut ,nc.r1W.ion« ~ of M'f psu~ on 11Ia by flIQtttl U$Wi in CJ.t Maltt Report 01

rd/ I" ~ ~ ttattd 10 we ~ ttIf COt'mlQlM
~lll\'" It to t.KJlly tht1 ooofd ....... tJNo l,IMd fOr b
pwpo.e of ~n, I'IClt ~l\ OA *It ~ buil,
MotwM~ Mn. of1he ftgMa eonM.-.d .uspidODIlrytha w..rty IIlqWy. tI1 NOOI.orby1l'lt mMfi.....
Inport;" Wdem, .t ~oe ti. ~ ~ ~ClI. CUt 1u::n ~ ~. ~r fld:ual ~!\tI. kU WI. AJrhlrill ~ afnn.I

~. aM ~ kt eiltnlt otoQdwd W'lIh-1h" Cl.\ I:and~

·C'Ondud'.,

1I'Hf1:anlMd.,.

B5

a~~U\.CCA,.mlth~=nlt'adb.u-.tc:omntltot-,c1Irn

~ FiMI C«I~I\ND. $ _au h:IQow1::: °00 1M Cf'ItAoo fJfwMtlct c.rtIIn R ~ ntII.:I5attt c;ouIiIMVI",Nnd:pmd
1lD0'IIM0'Y of p~ttuauQ1'lonUl.IM or l'I.~ lnun_'\\.11 ~~'CpcMiol'la .,R~ 1ftpca06at.
ROnmU;(n tifpoJts., V'.e~'" rnpgrM is:~' 1tldIm• .. JIIQ' 14. It: ll\eCJld t. AOCta Iftat cItIl' hI conemioM
Itt*not40"• .Clorif;aj,how.-..t.pwtir::uia.dV'lIoi:h~eo-~Ment~~COl,lI4b1\t1t~"'~

""k1111' _ _ W _ _ "'

~-==..:.r.~c::..===C~:"'~,"==
... ,,-.I- ...

~thMG\.9coundt Ol' iM".$:i:cI:.~o1ltl.NIt'Nd~

- .s.. inlr lIN. "Annwn. t11 '!he P.omanIctI Oe~

t6 dM: ~ on

g)f

.....,. .. N'l\I8dlooIcI_._R!gllI& _ _

AlIgN 8KM OwtenUon CIftUt.·..

.~tolh."'\tf(ttom~Ftuncw.~a'IhIt~Qll!Nll\lUo.~eoPN;e.toOk:k".Iti.20.01.2aOO;pp

we. The.lltlauls:.c!"'d'l~rq'irt:l'*"I\lt11wgnj'

~

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"l/ll"_'NI>_""""""'Y""""_"'_-''''_~J~
/ul$nJW(I~MY~torfN'tYlrwmpclf101~.Rotn.n..·

1.ht~Gonmment

1llo

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T_:

7

~ror_

..

'=07.

_

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pmII!!l!l!!1Q1l!lTAaIl>07~

.. ~ two~ Clocas:lans. on 14 end 21.1Uooe.1N Romtnim 81tl•• r..;.c:hd tMr«luMta aflh.R~o.lt;aonto

PAC~t:o ... apondtomrcmre~~.~~.. Ii;MdtDhSM_ComrnbtUlt',Dit.~for~
A:~'s e'lll.elil mpo...... Th8•• ~ WMf folcMJed b1 • ~ pwiod ~ ~ '1ft t ~ M

'"

~for~W=~~-...:I1
_ _ -l""Y"""_~
~,""WV_".No.flGJ,f>ll<ully:lC07._11t
Mtv......
....... _ _ 01
'" C l A _ . ao

.. so .. not1O~d81htf)'pesqfaA~""fM'ft~

Aom~tllJthOtStyIJa$~ttf}llyorlMgl#l.lnvtJlv«Iin~ttanJPOlttI.krRot¢eM.,.

ol_poitOy!llo~_Md_

HolMsnbw2OO$. ~tdrmp:lm~1AMlIdpmI21ottms.

!

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1"'ln_ttpott~'U8AIY_n.:s.c:m~rnC""'B*k"".AnN:It;y'I~~bOWOM~
l I I 4 _ n _ t.... _
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corMIJni~ti.:vI.. .medCll'l}yb1S"'~c:oWtSl.l~o'_Fln.lftepOtlbt''''d:I.d2Q,OS.2C01.

~h

.beil'l1nbtg ,Gft"RtlfMl*oI1htRClNlnian GrNIrntnlntonUtf, ~bcln itlUH bp l:Me.cmary~lo(u..Cqr.rd
of E,"l,Iro,.. b1 4¢(lOns.nc. wdh AnX:M 52 E¢f1R"', ",,'no.d to Ctlt WIaT fl'oc'G ~Rn.l'I U~, ~ M"rm.t.r of
FctelQn Air..... to
OIVil, 15.O'l.?3Ol5;.t ft'0''-;. ~ p4Jb/IIJ dfd.« cOt*';.zm~In., otrdll/ ~1I'.

~=..~=:~.:.-;....~.:'~~-,e~=...,~==

-H._.:'l4ofrrqlnqulJy.~Q.lfdaI,pc&itlOt\atR~m~MbtMrth.nth'ori;Nl~."Moplied1~VJe

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~involoINI1tMFYm""'kf6N""~c»pdIniJl';If$oIJlbretryo1~Y~.,,~otfJIfY~.wN.
0i!Id0I_,_~",

COI'I~m..zno.vc"l~foo/(tut:-anRomIfllIit~,"

." MCiClCdW lll'tfI. ·lMWr fttl'11he gbOSC 0(. trnII a'I hiI ..... a.. No fncID: AMR flln'1~' ~ 2DaI5.
1'd1'""'~tHR·1W a!1!s'lMtygMlxwyftFt~"7'l'lOO£'" P1G12In Tht 'f.P"CIl ~ tJt PfM.."ll iktIf\~ (ltUlD.2OOl ill •
~ fIl tr-. ~ Gf "*odo l.Ud 10 t:OtWII'Jot tM

p*'*

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~ tMWnlIDt,....~
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t_

55

A8IJ.. CoZOO7) $I

ASI.ur~Ol)""

lnslNdod to wall< wong an ioolalod pllll1 wilhO<lllool<inll 0Vtl& his Iho<Ider. Ha $!lid he
lhat ho
was -about to bo ,hot in llle be?, and left to
with nol>O<ly hll'Jlng any 1_ at hoW he ~ got

<f.:

282.
WOIlaVllIl_~'~ 4'l'miPl Wft.......... 1Ilomevqryto
wl1Icll ll1e ~ijjliiliC@ EIOMiW(miiiiA~
by
~ UiB~
or
RlljlUIllIc of M8cecl:na" whether ~
WOUld eccopla "1lIYllriSr of tile Jsnuaty 2004 l'llIlIi1lon. but lhut !his ~ was 1nslarttly tejllClecl:

....... -. _

th$n>.

278.· In the er.suiog lhrGe years, Mr EJ.Masti's CBSe h8S lleen IIMsligated and "'IlO/18d
f)l(lensivaly, Inc!uding by the lJnllltsu<;lluflg$<lfJ$St:h= of the German Bunde$l4ll and by Germatl
proseo.Jtm. both afwhich I $hall address below. Yele key pi_ or the ~gsaw. namelY V10 maal!!..ID'
whig. Me El-Masti waS returned from Afghaf\iSt.f3n to an tmkrtszml parol In Eu~f:h L__ _... ~_ ..
investigators un1Il nOYl.
279.

1Il. .. _

"VOlt can imtlqine lilal was t!If1 ~ thinQ 1M MscedonIan, W8111sd11lloy hadll(lll>8$011 to tai<lJ U1fJ
.

problem bllCI<'

283.

The ClA'.1EICllIld c:IICllCe of AIblllIIa was !8YclnlbIa fIcm a geographlcal poinl of 1IIsw IIinat U

lIIl"'lOd the cpl!lIn lD ddYe Mr ~ t>:IlIlQ M8I:IBdoti8n border Inm8cIi8llIly ...... aniYaI ancI Uul
S81Wm _'n a1l8tB of ~ lh8lmlg1lt~hi$ctedibllity itho_ F>Ul'<>wIllI ~.alt1ty.
From B policy poinl~aIsO prcMlI1 to be a \\i'illg IllIalIlnlI pertnerln provIcfng th8

Today I think I am in a position 10 reconslI\Jd the <:imJln$18nC:U 01 '" El-M1l$d'. relUm fmrn

Atgl:1an(stan; he was flown out of KllbuI en 28 M8Y 2llO4 on bolld a ClA<hallerad GlMstream Bln;r.Ift
with the tail number Il$82RK 10 a mnJIBry a!ltw In Albanl, .-Ded ~u;ova Aero<lromlJ.m
we have obtained P'i1llalY data en ffil.IlX!tlIO!di""')' honwward rendillon from tl1nl& Separa!D sourcas
and we 8re able to pablisl> the relevern !ight logs from ll1e Marty 0aIabase as an appandix 10 lhis
roportm

Ulliled States wiIh"~
fOr III In¥lIl1tBll ~ illite 'war on turrcr," At hiIlsl
"ghI fotmer lnrnBlaV
Bay _1!nlndGd In AalBnI..... becauie 1IIW
Rllus
dOeS nol allow ItMm to go homIt \0 \h8lrf.nliea.

muo-

B5

284. M.tho end of hi. <MIl _ . Mr El4.laIrl waa not lll10Iltt tho bllck IlI.IIIMIellcI c:ontronIBd by
pallce guards III B cIleclqloll1t (111 whaI llppIllII8d lC be lite bQr?;fer bG!wIIen "lhB 1onOOr YUllCIlllV
RapuIJllc of Macailnllr andAlllenla. FfQQl ....... MWBS dtrtlo fpc about ... hclnto Thma,~'
caplW, CitY and I8nl home 10 GOllll8!'1 "" • Clln1IlBrCl8l ~ frmri Milthti TFlili'Ilii
to
Fnm'lliUIi iiiC'&iid a bOi'dIlij c:lW 1Wa 1lnaI1IlghlClCl en AII:laften Il>ClI aI.aIJ1lln No pa8pClt .

tor

I'or 29 May 2004.

285. T1lIll8 have bB6n 0ChGr _
~ CClICIlRVIg in plIl!IQW tho lICIM1fea of tho
prol5lII;\lfllfs<llliceIn MllI1lt1l, thollfOC8Odfngs lntlleGennan Ilundoslag'. perl!emenwyClllllll1i1loB of
Inquity (VtlIeIsuch~u=bUSSIUAJ. Nt EJ.M8sri'a cIvlllaWflll1llQ&in1t Ina CIA """"" US cxulB..·.•. ' .':
and. rut IlI.II not IaasI. No penonaililuallOn.

'On!he:lll May 2006 permissionlwa.j issued to llto CQllIBJ1Y "RiCHMON AVIATION' j&lC) fer
lraV$J1ar ohallll< ftighl OR tho day of211 M!ll' 2004. una; A1JklIGwaunant'u - Sarajevo -!'rag.

Ain:ta(t typo; G<hStrlm III. Regisltallon N9S2RK. which Is elso 11:5 eaO olgA."

~-.,

55

Thro. e1ll1Tlents of !his pllII11ission ClJIJglIt our tl1lllI1tIort the rtlIo of lhe cl1Brtor company
Rieiunor A'Jialion;""lltoOlAlandlsh no~on tIl8t a ~ UI WOUld fty lD $alaJIMl frQm Il'I& Solomon
Islands airport otAulQIGwaunatu'u;'" and tho menliOll 0I'2li May 2tm:wliid'lwo Kii6W as tM d8l8 on
wl'ifcii Khal9<l B:Masn WlllI released. The tir$l of _ elements was tI10 k$y to ow iOO8lInII the ftigllt
logs fa the N982RK Bin:mft; th& ""ca1d was eviclenc;o of a smOkesaeen on the part of tho CIA to
covet up the eln:rorr. ac1UaI atrMtl from eezal.l(~ ABrodroma; and lll& thItd was the IIIllld1 we
had lleen 100lOng for to aoIw the myale<y of tile _
of Mr E1-MIISri'. ralum to~.
2B1.

286.

ThB =e eQlllnal Mr

e.a.wrr. IciItllrppenI bafin lllG Ml.IlIch prllHCu!G(4 llIIlOB 1s·.wI

PBndi"ll. Upon th8 klllIBll.... oIlllG ~. Inlllma1lon8IlIIlUt wamIlllll Wlll'B l8>.n:lhod lIQllfmt 13
SU$p6dlld ClA lIQ8I1tS in J1nJ8sy 2007."'" The a.wtlan Jl,deiaJ lII,1IhoIlllaa del not In et:r1 W1I'J . - .
willi lhe luv:t1 of lhe&B 8lI8Sl warranbI. tlul no PfCIlJllI& hat lIS yet bNn Ill8de In ~ 1110
pet'8CM concomec!cr~ldetJIltylng tIJom by 1llelr IIdIIeIMlllU.
21l1. I~ - In ClQnlnItl t>:IllaIy • tt Is net~rm;uspec!S In aMeDJf!t, In I8PlY to a
l<lml8l ~ tor jllllClll CClQIllQIJon ~
M
llt'l 8UlI1OIitiea il earlY 2006. tho
pi'O$eCUtQlII wera given orty 1ho "officlBl WIIOl<\" of tho _
as aIl8ady pub(1dy I\lItGd by 1Illl

lWthorities."·

.

Nahas IJtrfpn>ga&abeen ~ln ~"Sarl'l" thoG~~WhO.lt II
dai/n1lCl, """"rnpanled Mr E1-M8StI home fn:lm ~t;;m. II _ rilIrallled
lh8l1hen
, 1 _Nirillllt S<tiIy WIllI perscneilY rnsenlln KllllU altho Ime ""'en "Sam" Il1I1OOOC8II to Mr
M8stl that he WOUd 1000 be repaItIBIed. But tile pl\l#8Qltot _
no 11* l>eIw1lM Ml' ScIIly'I
poe$4lIlCe and the B11agalloM made by Mr El-M8StI h/mIeIf It1al "Sam" was In fact B Garman _
2.BI1.

,

e·

agent
sell' &Malrt IQItl'tMnt ~ US (;ou., In .Ar~4M. oe.04.200c. -It It 21. '"SlJll'• • Gt~""pUltMg ~Chll 'I\'fIO
ac:companlld NIl £J..Il,nrt on INs r~
l\rn tbI2 he "'WOukI awntuaJr land in • Europan ClQW\fry t1\1t U'I41I ~ not. I»
Garmany a.!t
1:12 Ttw ft'llMry afl'bth i'l <)J.tJJon.~ ~ h.tw fifO ~ un b twnt.: IJw ~ .. etztt~ 1M exhort. 8tttt·
K ~ TM: III"MM il clll'lo1Dd by Itt. fCAO c:aaLAKV~ Itb:~ h ttl.,~ o1Abanfa, IMC'wMn It.wt.7MIS ofVforj W
K«c"'Iob~1A40 rie. (&4 bn)~of1M c:apdaa TnM. ibII utae Undtl'wtnt.~.~cwa'6oncnd
uwad'
:1:1.

O

'*'

bctwHn2002 amI' 2004 inonfrrtoIlrtng J:~tD aneWilh NATO ~ld$," JMrtof ~.'. NATOI«lt..lioft~.
;wS'.A;;p.n4I1lNo.J~lh.pmlattJPOft.~oa~l:GI"-bp,..rltl:tdtalft.~"ll~fttI~otKMJl:dSUCsltin
M~:ZC04·

'" Slob"""l.. No 02_.7~ lloport on ~I'" _ ' . l"t1'O'*l ~ Ut Dot<I. Il&:>;ov;e, o-tor Go1Im\
.oree:kl(fUforCMAWb",theBM~a!TfM$potCtandCo~

•• $arIJwQ.11,tI5~;_d1IcItO"'lnIr
l3:) In- fnlmMrarir J~c:. CM.lr"ptrlonoftle8iHD.lfPjcntoPACE,~.
'4J:It.2OOlJ.
m ftfiMiuiotl No. m7oo3t11iG4 iNullf tty ~ ~paok, Sinkif' ~ . . RlClM A\lltlo~ ~ fM CMI

_""In
USA;

_otT"""""' .... """""'_ _

tho ......... fnlmAljo.. ~ "'

:zo.c&.2D04,_........ ·Il_lolcl_·.

'Y Go_I.,,,,

rnoYel'nM1s-~ofpemiaDCl"'~MI"'.
SIITW;wo. s'1J1.20Q7.

.ill D~" PACe, ·Roporl. . .

weWIQ 4.fP&a.rwlttl ~ ~ .. ~. DpQtI:lrQfthf tRqftwr.t'l ",. tur'lJl'l"Dft NmM. wt'dd'I ~ Uf";o.~
cLA's r.,tGQn '" rl't. E{I)'Pllan ~ ~ 0m&I on 17.0:uc0:s. 8M ~ Iior. "
VII Ulftt ftepo« 2«Ja. ~ loVe
rellllKl to ~ IWldWB Of Abu Omar.·

D

=

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UNCLASSIFIED

•

... qMawn In~ . . bt.d-=*'~ 1ft
_Cfb~l'1Mu
Cllo

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L0351

UNCLASSIFIED

51

I\WJur (2001) 3&

I\SI.hJI(2l101) 3Cl

2a9.
It !laS been "",aaled t/lat Ul.IOIephonoo 01 Mr El-MasJfs Iaw)'.... W a",'ldIc, were lapped from
January urllll Mil)' 2006 on tho insuuc:tionS at I!Ml ~s otr.... A1lho time. !here were also long
conve~tion$ between Mr Gnjidic and my coIllbor11tor G$ part a lhe mamlate given to rna bY 1/10
Pa~lllln""tery ASS4lIllbly. Tha pro$8QJ1or in
.,. Informed me thai tho IB8SOl'l fQr ttlo wire-lap.
whi¢l1 was CXU1.
roved ~ pl'/lllid
tho sus
nap
oontael Mr 'Idle WIth a view to olIering Mr EJ·Masri 8
•
•
WI
was
, w h o had not been
in(orma
this wir<>-lap in a<lvanoo, appeal
agaum CIle de<iskln autIlCIlslng tho surveillance. lis
<lXIansion beyond Man:I1 W"S found unlllWlul al l\PPG8I, but lho legality 01 tho kitlllI wire-eap was
upneld. Mr Gnjldic lI1en lodged a constitutional complaint {Vsrtauung$bl/~l agaI",,1 Ihe
auU1o<l5at,on 01 tho iritial wi~ bef.... lh8 FadGnll CO!I$liMlona! Court
(8u/l~g<Jtfchf). In tltlmisslcns 10 Wt 0IJAJZt.... Ihlt F _ Minlolry of tho Inleri...
oommantod lIlat ~ II round t/1a wi~ justillod. On 17 May 2OO7•.1hlt FadetW Comtitulionlll Court
held thai tho wire·lap had violatG<l Mr Gnjidic'a ~~onally prdBcIlld lighllo privacy.
290.
'MUIst tI'!' Btmdo$tag's patlismenl8Iy commill4le of It'qJlry (UA) has not yet oomplared its
woll<, II is nOW undispulG<l In this body tllal Mr E1-Masn"' _
of IVs ordoolls lnIe"'. This moans
thallI1ere is no long... a'Y doulll that the Macedonien aulhoritil»' official version is _
.... Thill
oonlirms our belillfltlal1he latta, """'dous!y CQIlC88Ied lho InJlh.
291.
Disag",omefll between the llljll8SGntalivas 01 tile German GoverMlOnl and apposi1lon parties
in I!Ml Bundestag committee of inqtJiry OO/'llinue$ to Il>dsl as to the extent to _
dilfetel1\ Genna1
s\llhoti~.. Weill involved 0( allaast In!oml«f of Mr EI-Moori'a <:ase, and wllEln. The to$\i1llOllies a 0
, ~:, •.:. ,'..,. ,.,• • " '..•. Telecom employee and B jlJnior membe~ d tho Gelman Inleligenea aavI_ - cIalmlng thai .
~.;:. f.::.:•.'.~..:;.:::·~ .. !; ;.,:.;:-Ma<:edonian officials infllrmlld the German embaosy In Skopje 01 Mr EH.Iasli'a delention betore IlIJ .
.... - . ' ••..
was \tWl$poItad to Afghanislan • WIlnI not considoAld bY the rnaloritl'_of the COITlIlliUee to be
sulfiden1ly concluslvo to be BbIe to hold tho poIiUcalleadat1hip 8CCllUItlilbIG',
292.
Mora gfln9tBlly. opposition mamllere on tho oonvnillee have _
1I1air fi'u3lnI1lon that the
exeaJliv& is 1iml~1lll the possibility for the ~itt&e 10 <Wdd8te the 1tUth by Involdng o1tidal aaaecy.
refuSlng e = to key et8$ or testimony on lhis ~ II'IfOlmlltkln relating III tile 'core hfll of
executive privilege' end InfOImlllion wIlietJlTllSt be !alp! _
in lho tighor interasta Of lho al8tlJ
(S/aaIl;wOIlI) is ...,1 avaiIlIbIe to lIIe UA _
when lIIIlllling In <aneta II is the eltec:utlve ilseIt wIIletJ
lledlle$ WI\aI Infannation falls into thls CBl8gOty. apparenlty wiIhouI any peltiamentBty alffirOl; tile
(IJrren! trond Is to ex!el1d this ooncepl 01 knowledge rull1d8d to the 1lXlIOJIive, a lllOV9 wllk:l\ ho3
coma In foe muetl criticlsm 1r<Wl1 the memllM; of lho UA. The IatItr have _lty decldBd to
W,
mallar to the Fed«lll constitutional Courl'... E..... clBSSlfIed Informaticn wI1ld1 does not fBIIlnto lIU

mer

category h8S to be<leBll willlin camara bY the tornmitt&e, wl'itlllTl8lltlS thalltcannot bl!P.'Jbidsed ty
the members of the UA; thlS too has be... eri1idl&ll by IOmG mlImbere oIUla Bundaatag"",

293. ProsQClJtor Hofmann. who 1lI1lO toslilillcl be!0I8 the UA. I18d !l1lnSmlttelllhe en~", casa Illa to
the CXlrM'<Ilee. Induding elOlInOnts thai were daaSffied as secN~ But durinll his pul>Uc tuUmony, ho
answers 10 C6Ilain questions relating to da$$Illed documonta- His offer 10
dlscuss 1110 classltillCl matllriSl in a dOlled $GSS!an"""" 1101-\41. a1IltOllQl1 thit procadure had been
followed fOt other wilnOSS...

B5

58

294.
As a nnull of lho UA', 'Mlric, the Genn8n ~ and ll9\'llrl1Il'l8 tIspar1menta """"
been modo more ......... of _
oliIIII oopeota Mel the rWI of IlllN"'. Tho VA ~ ~ to
avail il3ell, foe the Nst um... ." ll1s popibIlily p<oYlllod foe ill the llrl¥ govemln; c:onvnI-. OIlnqui1y 10
appdnl B 'Ipe<jallnvestigator" willl e1!ecl fICm the .....mer 2007 ~ _ , ta8kllll on
behalf 01 tlle VA willllooklng lmo Illo CIA ~~.

_lIle

295,
"''''''''''hilo Mr El-M8S1l'. cMIlawsu1t In ttla unted Statat agsinIt tho CIA Is entIfIng lIS lln8I
phase: "" appeal 10 lho US~ .... ColoI.
rojedIon d.... ease <fl QIRU1ClS Of slU Ma1ICf
In lho fltBl inslllnCe.lJphald b\t tlle CXU1 or appeal"', wu t/VlllUllI*l b\t Mr ~ on 30 Mat ':11m,
Agelnsl ttU bacl<Qro<rlcl. IAr E1-MBSlllllmHll' .. $\ill autlerlnQ . - y fICm tile P"l'cl1olclllICil
lIlo crde8I ha has gone lhlWgh. He !lOS t>een "'1*f*llY vlc:timlMd by peraonaI
_ I n the Io<:ul mocIo and has been unable (0 fitld ompl0j'm8nt In lho tost _
YIlW. In Jorury
2007, ha lashed oul pl\y11<31y Bla vocauonal traIrirlg oIIialr. who he flllIllIld lrelllacl him lIlfarlY. On
t 7 May 2JlO7. IlIJ was <UT1I8lBd In NOlHJ1m lIS • _peclin. ca.. of 8tIOn and lliOced Ill'. ",ycllI_
~ , 1l1ls ~ lllMIlopment III Mr a.M1SIf' ponIOrl8oI altU8tion meAlly conlltms 1M
repeatell daim:I bY ilia laWy.... Mr Gril<ic, thai Mr EJ.Maari Is In daaparlltlt l1lllld 01 lrmlocIata
proteaslonaI payctJo.8Odal post-lrillJmllljc; r:IIrfi"'. AOIlOI'ding to ilia _
~. tho tonIIicI
bGiwaen his poslolnlumallc en and lho pteaure aJlIlr1g fICm ll>O VllIfous ongoing Pft)COduru to
ea1alllish the ttulh sImPY l1dds to IIlr El-MlSlfa probIllm&.
.

29IS.

CCIIl8~ of

It Is therIl!cnJ at! the ~ I'lIlJllIlBbi'lIhal Mr SoMIIIll hal llOl yec t>een gMln an aflIQlIl
foe lI1a _
he has 1Ulrnd. dasplle !he rat:I IhaI Mr SChIly hal lIllIlJd beflXlJ tho
_lhBl the Amel1ClIrlt haW IonrI tlnce """"'"
lJnIotwcIJu/l{lWJ=ciHI# lI18l Mr a.M8Sti Is
ltleir own as>oIogy to the Gonnln ~_n.'.
.. .

297.

as>oIogy

2lRI.

mr-

.';

I haW ilia followtng c:mneru ~ lheae1loYelopnlOl'Q In lhII El-MutI_
b. The ~ WllOlIlmI": _
l1rIJtRd~

t:1f acc:ountIJbIIIllo EUIurI '" GetmIIly aftd '" 1M

of_

In lI1a rn-tt _ of afI'aIlw. Mr EJ.Maarl Is l.I1lIbIo to haIcI-utlIe _
f'tlIl)QIlflbIOfoe
his ordeal bolll ~ GemIany and in the l.WIed SlIIln. The COlO of lhII pralllem illhII dodrint

21l9,

J.I!""i"."'. whIcllllt preeorll CIlflS\lllrlaS ali Bllto/uta obelBdolll the 8lTIClM proeecuUCltl Of Mr ~
Iddi\appeI1l In Gennany. the fiji cIatiIlalllon of rB$ptIIlIIIilltlea ill the lJ1lftnrIl;h~and Mr

EJ.Mam'a eM IawI\lI agaInoItho CIA III the Ut1itedSlalas.

300. M Mr ~c ho3 aaicI eo epUy IIllllt QCllTlIlItlInl agaInU lhe wtrMIp of IlI& I8IlI omoo: WllIlIt
tile dclmoln Of l)Rl(esaional IIlCl1)Cy • !he Il1IliIIllnllIl polllc:l8d RIlB1IOnWlip _
1tIwy... om
dacIorI 8tlO lheir cIentI. JIUnlIiatS and 1ho!r
• Lt lJ'lIl*IalIY ~. tho I1IIllIn of _
taCttCY la I~ &qlIlI1ding. 'E<JJ8llly or armt". ptlt of !he"fllirll'lal' "",*,",1lIU _
AIlI$
6ECHR.booomeseh:llIaw~,"",
. .. tI*8~.
.

was obliged to \OIithhold his

mMtM~Ho&nann,1'I1lomImttU'l~r:2D08""~,I&ttol.idHultothU\kN.rHQ""nnftlrMIcrxIClDOp~Cn.

'ZIi&AptOJoogItIOI)C1rthti~p'll'U.lUb.~nttyrafV.Mdby,"~~;.c(Ja-.
~Onflf.'tMU\1fl."<iufry.
:It kcQrd1ng \1) UU sr.4Jw. Ubnl ~

of .". tt\Jtl~• •o·. CCITIT'ft't. of tnquWy tM tI'l1' ItfrlamMUrltcltft
Kon'.oN.f."I'M/ffF (PXGJ'¥Itso spoU ~. tMl'l'lbtrof 0lH tMm on 2&.OS.2007.I'til itt.h.~l)1ni9nv1.a!J~"', ;,U,Ktn,lloM
from the patt)' CoW,..,.:!)' In poM'.
Mt stl4kr. IfJIJte Ilott 23D, hdbt•• D'lal: Chls a -'10 ~.'It"'or~conmf1M cflrlq\Wy. ~ con not ~~
U1tl b 1,rma or r.rfWtl» -.lOwS'to r«:Otd \iii 0fkiaJy.
~Th. po~l "td.-tfNp <:.,~ only be' t.kf ra~ fer "o:r;al\lnbomW ~ fer ~D to tIPM ~ICk IM1h ow ~nt
~nlngClodb'n ..
'WT~n."ot2$.0$.2001.cDlg 01. NMStldl$r~LJbnr).
)01 Me SUdltt ha .uw~ to ·tHO~ "Ib- b1 IMtntt-ra _ gmmtnlC$.t ptfUM. tbalgned Ot" ., ,,~ o~«t l.bIY to
~Id H pubic on thl tub,tara Of th1Il'1 l:'tll*'1 disc:un1oM - OM (;1$* en ;oint wu 1M prHate hliltring ttl. dbl't vmo
had mt.tTDQated Mr K.1.Ittoaz in ~ ky M;S 0l4t mattar
~ ·ttl'W'. IIPP"""" ,t\lMd by 11'1. a.m.A

*

*Jthcritio.,to.-""MrKumu:tob.~.

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UNCLASSIFIED

~

.

.. ~ .. _by •

lII\'••ulINquOnl--HoIs_of...... IOId ..... _ _ .. _ (
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L0352

UNCLASSIFIED

69

ASlJur(2IJll7)M

301.
Tho US SUpRlm& COwl, ~ il ctloos6s 10 /lear Ioo1r l!l·Mostfa _ . III1d lIl& Gemllln F~
COlllltilWcoal C<lurt. follawlng !he lIflPGlIllOClged by thD mk1oll\y tlll"\lSetlIllIIvaa of t/lIIll<I1<le$lag'o
ccrMlitt.... of Inquiry, will havlI to lake 1I po:lilion on tlle _ 1 0 wticl1 ttle exeoutlv8ls IlIIoweclIO ad
in oompIelUecrecy. Withoul!he llOS'iibiity for eil1Mlt judlcial or palfl8ll\lll1lllly 8a\ltin'j of its IldlonsHIlJ1I. we have on l/le one /lal\d Iawy"", and juclg8$-1n flMlUl' of judldal8Mlot paritamentary oontroI,
and on !he otIlerlho ~. and in par1ICWlt lIl&lnte16ll'J1lC" &g1ll1CIea and cl/Hlr spoldlll-'.
dolming tho _om. to et:l,n ~ on lhe pRttext ofthD8UJlp058d /lIgher~ otl/le!1ll\&. Mt
Gnjidic's <:OnSUtutio<1al <:omplaint, in COOlrasl, has led to e ele8rer dafinition of tho re8lm of profeaslonaJ

socrec:y,

_to

302 These lllll l.f1donial>ly key i.su,," for 1M d _ of Iuman rights end for lho tight egalnst
lerroctsm Shcri.QrWting tlle OiIhlrent med1anisms <:K jllOiCiai III1d padiamll!taTY COIllrol d08S rl9l
maxe lhe fight againsl terrCll1sm mom ellat\ivQ. RaI/Hlr,ll1I. vaa.lU11 can
estittary actiocl and IlII
sorts of dy$funclianlng. \MljJ. cartain opemtional rnoano must '" tt.lUl'SO remain eonfidan1llll. 1hGl\l1s
nothing 10 pre~ mal<ing provision fO( lrotIsparenl prooedUlll$ for ~t revf..... CooUrw!ng to
lnvoIo;a stat. seallCy yll8r$ 81letlhe awnls Is unaccap1abIa inll dGmo<:llltlc society.
303.
Moreovar, .stata SOCtll¢Y eannOt in any ~ 1-Istify or conceal ctfmlnal Il(;ls end
seriQU$ numan righls 'JiolatiOO$. RQm Ih~nl of lliewilf lI1a rui8 of lew, th.llIIing of 1M US CCut of
Appeal (4~ ¢lrtUl) in Mr e~Masd'. case is disappoin1ing III1d regretlallle; WIlilst 1I1e ~ cl Appeal
aclcnc>l!<1edsa. that II Is for lIl& courts to decide en 1Ila extent of S1al8 ~, l;ll(0$ a

~Efe~m$18~j:~thDWN
letellC& to
ues!!1&ex
~I.

•

:~:;"::~.;:. .•:•. ~

.' .1nce
:' .j.'

~

"

IISlJur (200TJ M

306,
ThltprlnclpledjUdlclal _ _ la ~ .. good lhlng, buttlQ bWly eorrupl8d_lt
mlJla In • ~ b)' tIl8juclci8ll}1tem of Il$ 0'l0I'l rola.leadng to In1M1lIlI forft JlflIll'llIOlln d
18lt_human rlghIs vlcl8llOlll.

Judges, ptOSeCUlOra end lowye1t cannot II p1lod be OQRII<1enIclI1lltional lI8IU1ty rItb, err,
CIlatl_ ogeIlle of Sl8IlIa~. If .-sIltY II> 8Ill1lgulul:I18gilimelII _ _ 1tlat
may weIIl>& ir4Brlwkled willi IIIegltimB1& OIlllS, judlc:lel pelICIMllI paIt[clpellng In JlftIClIIIlllnI irMlMng
_ _ ClIO billUljecled to 0 opacIflo daerlng or \lOtting ~ at fa clone In II runber or
jUll$diai~ end p/IICed IDler en obU;atlon to tnllinlaln IIl8 ~ cI tIl8 ~ tIl8y 81\1 glwn
307.

monI

accessto •

dol1lllncr"',

hlomllll rllJllt >lolatlorq
not be ~ to bIl'lI¥dded b)' tIl8

In cnler to ..,...... 8CCOUI1IIIl>I1Ity. WO<1llItIOn pertalnlng to ser!<:<l$

308,

commilted by egIlI1lS of t/la 8l<l>CUIlve ~ nul, end ~
noIlon of SllllIl aecnlC:y (II' national secwIly,

309,
W1at epplIes 10 oolals must also apply to partemenlaIy ~ or !nqIiry: tlhe 8lOlC1lIiv8
must not be 8lkMed to thwlllt Inqufrles Into Il$ 0Wll ~a ~ by dwlry!ng relevant
infQrmation.
Co

m. (lermM pttfIamentary COIItIllIt* <IfItHpIiry _1/HIWW*oIl/H1 ~ J n

MunIch

• T1Ia ~eommItlN Cfitlqllft1

•

800tr1 may condueletl>elane>qllanBllonby tho E:<8COIliYOof¥ot!y II qufIIlIan

caMel be atlswa<ed would I1seIf croatun W1llO(tlpUlb/e danger of Irjlaious dlsclotule.{...]In sucll 8
situation. a oourt I. obliged to =PI llul exllCfJMl bnlIdl'l claim or pmoiJage without fur1I1...

flO

The Go8ImaI patIialnenWy I:OlTVl1tlM cll/lqliIy.espcn&ll:le fer eallIllil/llng the ~ In

310.

ltIe\' ,;~:. ~ '.;: ,,;.:~.::.,{ . ,);;:

El-MlIS1l C8$ll i. embIemIllC. Of <OUrII1 thI BuncI85tlIVI clecl&kln to CClr1liJCt a lIllIouslrqu!ly lnlo tIl8
EI-Murl ..., fntlI posaillIy repreIllInsIble 1lClMtl.. by \hi Gelmtn .pedal -.loea "
welcome. II Is, 1Ia\¥aVar, ~.Itlat mosIll\llll\belaoftheClllllllilllll havoto~~!p
re~~~has ~0ld0 UN kWl$!iU' bY W i § r n m l t .
~
been
III accept tIl8 rlIaIcna 0- by wl~ for ~ to
gIVe llI4de1\ell: on each ca:itIlQ1, "Jtal8 -.cf' or the lOQlad dclcIrtne cI lII«IIclIIiw
BgenvenmlwOtlUllQ (lite domaln of tIl8 ~'. own I'IlIp(Nlbllity, ~ lICm plriarnerdaIy
lIl2V1iny) llBI tlIIen _pled. It IhOIId 8lIo be me<Ie c1_1tlat lite stalling ~ retponlll>le for
~ tIl8 eetMlIea oUIle sec:tllt terW:eI (~ ~ /F'KGJ) hal
_ t o eectet1rtormll:llorr"'; end Itlat 1M parilamen!llly ~ of inqI.iIy _ I1llI'Itad _
betmd dollid doonIlxllI1lC1 dUsllled docUtnants end ID \OllIlaU 1lIstimony Cl\ mat\ln c:lAIlIfad as
eeaot. Wl8t II In cbl'Ul8 bet.reen mojOlUy 81d ml/IIX1ty ~ " ltIe UllIn! to YvtlIcll
pattllll'llllnlBl1an cen demand _
ID ClaulfI«l matelf83, and 'tIh8t use they can IIllIIce of llln
public l{ 1Iley <XlOlIlaer 1tlat tIl8 n.-- In qulIIlIon IlIqllfm theft _ _ to be lnr\ln'nlld. ThlI
metter needs c1ed!lcztion, getlflllllly end elm for Ml.n mnnce. 1lle pat1ImIlnlllI'y ClOIlIlliaM of
lllquily Is fU1lIlirCllll ~ IlImlt In IhlI ~ of parllamen'I 81 II WI1Ofe. and lis ~ I'IlllSlIllll
be primellIy InlIuenl:8d by ~ of sIloIt.wm poiU\1eI rl1IlllJfS'. Mt mlljOrlty,ln. dIlmoa8Ilc
5y$lel11, con becclm8 IhlI mnorrty III tIl8 naxt elllCllon. end $llQI.iCS hlMl an irIBAlat In prCIlllCllng
lJlIfIlIRlilCl1lIIY 8Cnl1Iny of lIl<IIaltlIIe ecllon. I tlleIeronI woIoome tIl8 cIedtloo of the Cflpoaitlon
m~V8I on
parfillmentary <XIlmlIIle of /nqIiry ID llI'I'lY to tIl8 F _ Olnstitullcnlll Court
for 8 deaier dellnltlon of 1110 """"" of tIl8 cIDClrlne of ttl8 ~$ own msponsltlllIly (iIX8/QIl/II9
EI~fltJ"",
caM of Mr

304, One may l&gitlmalali ask how sucll ruascnil1g om be reconaled wiltl 1he flIl<lamon!lll
principle$ or the· rule Of law. T1le c:sse law Qf l/le us s~ CClIIlt ci1ad In SlJllPOll of 1111, wiele
interpretation Of llle alalll ae<ZeCf <lo<::lI1,..,"" dates back to IIl8 19" century andllle _
perIcds
the COld war, WIlen there was an aImosl blind truslln tlle lrtal1ibllily and i/'lCllmlpllbility 01 its secret
servi0e3. III. Ill8More to be hoPed tile!
United StatelI ~upreme Coull wm 1tS$ lila opporl!.l'IIty of
tIIo El-Masti case 10 tal<8 e 1IWIh apptOJldl to ancI mode!TiIIl1he - _ SGClllI. doclrine', to bftng ~
in\Q line with 1Ila ptinc:ipl<l of thD .~on of p<>W1n and the requitllment for trar>spareIIey In ..
9"'1u1nely democratic society,

or

thD

305. in FItz~. sn:>lIle1' Uniled S1ale$COUltcl Appeai rlghUy points out tIIot '[wP>en I1le $IBlI1
sect&ts fJllYiIege Is vaMIy ~ the IVslJll i$" UIlflIlil'less to ;1l(1vidua/ fJ/igtJn/$ - throl1fih the /a:J$ or
!mpQIfat>l eWctlmcs or di$mi$$lll or e case -In orrkK lriptoled e gt6IIter {lIJbIIc "'1($," Hl1W can lll>&
saloU$ly ergued th8.I infoonslioo eslabllshing hi R1SpanllilJirrty <:Kstale ol6aaa In serlous Yiolalions or
toJrnan rights 1$ Or'8 greater public IIllJue" deseroiIng protac:tiOrl in 8 demo::tatic socioty?

thD

_

...
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-k'r1tMl""'''Y''4NI'f'QI'''~bJ''''Ch:uICounfll~'''(~nl;D

,.. No ()6..1S61 ofQ1D3.200f'
::I:Ilt Quoting h
us: Cuptenw- Coo.ut

n R.yrtOIds (34$ us at "'0) -1j)Jdicia! ~l OWl 1M ~c. ih •

abdrc:ctodto thaQpl'lC6otO'ItQlNItII~""
:liU AqUl ~~IM us.suprwn.COUIt(/J;tao'l.

c:su e:ttlnClC N .

4tBUSllt110)
"'Coatl;Q1App.tlalIJU,Of'"_nola 246)p.12. WliJ'll.fa1'BnrOllitou-.US 6JJpmN CooJtt.RJI~j\ldgrnttlt(34$U3~i~
~ fM R,)f)OkII~ data bKk'lO 1~ ~lP'Ml&di""
{To«Ml y, U!Jh4.stt1lN. V2 US t05] b 1t7$. ~ eM UM.rz
SM/.ty.thOtl(4f8(J$~BJ)1J)1974; Cli-&$ Alrt.Jnn,/nc...'t. ~$..s.cap.,m(l$ 1rD,.111f01812
•
- m F.2d .t1ZJa n.3(citeG by 1M Ceurt ~~t ... &.t B#urlCliM-.IiJptfI,. 2-". P. Z)J

Q'.

_.".~lOOQhIlllbop_.....-

~.pp.1,""12_21~fOt

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-OnVftlJ1herfl.Mc1.thlltIodyhltftOopc:JlllWt:lWl'II'I'On~fhe~laullCS«aJf~tD"rtf*I"'c:ov.
.PKG. ~ taMe b rIQ IIbtI£Dly cUl)IIIDn (SUb)tc:t tit atlmII ptI'laIy)
l:MI: IlIflItb . . . tot ..,... ~ lIy •
.......-'f~''''

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MaM.
i n .eoo~
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to 1
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~,

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lMh.
"Ilto
Gwnwl paJlamtMlr)' aorM'I!ttH
of klIl[l;IIIy. VlCIIt_tM

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UNCLASSIFIED

.

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L0353

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71

"SIJur~7)3&

l'Ullport~"",.,.,.,t'ndutr1Gl'Y.~onClA~on.
Too Exer:u1lYe 0.- IhIlt Pre>
BiJSh'ShIllll>$Ue' i
• Sii&la li&
Bh8d i
and
sIlOllklllXjlteS$ly outlaw not only <he aI:ll'!omlrlt pmctiCll Gf 'wlllar txrardlnQ,' llulaJSOiliChl1iji\ mm
sla~ Sijons, S~dep!lY8lKlnMd flrlmmes of ~ 1 rliiiiIlII8I even tile Nrriy
FI&!
lU1Ulll51~r
1 _ open tile ~ U141wc:l\ ~. am no! ~'bllecl,
so lila! fI'IBl1UaI cloes not s_ me as lIl1 ltjlPl'OpItSlelY robust 881 Cf minim..., slan-. 1Muln tile
klng.<lWaited rulB$ tor the CIA "'" ~l'IIlIly issuecl. lIley rT\U$188t higher, deerer lhresl1olcl$ tlllIl maintain
Il1e integrity of ll1ese lmpoltanllntemlgatlons.
359.

Pon;eptlolU orlln> HVD p~ BIld Its llkety ~tion

Ri,

AlIl1& tim& of tv. 6 September 2006 Spoecfl, Ptes'.clenlllustl_ tile HVO progn!lMll> lIS
e policy that 'hllS l/&e(l, ~ romaIElS. 0Illt 01 the most vi/al tooJs In Ol!f war Sl/Ilit>sIIhB t&mJrislS'. In
the expeliOOOl of our leam dIoing this inquity. tile President', vifffl is lorgoly Mated amcfIlIlhose
oflicefS who had knowlodge of Il1e p(Qgramme. 'Mlll ooIy y"'Y few excepbO<l5. lite tmIjonly 01 our
_fces In the CIA lllld !he wider inteUigl>l1Ql OQfMlUll/ly have tlesaibeIl the HVD plOIIlllllltne as a
SUC<;ess, orin one case 'abovl as good as # roufd ha.e lumedOllf'.
360.

The fOUowillg;s 8I1axcerpt frnm Ol.I'intO!'llfffl willi a ooniorUS inlBlfrgence .0llfCll:

361.

to_

'I think you haye 10 und9r>l8nd that tile PIOll/llIMIO we "'" ttvou\i12005, Into 2006
Ihe HVOs was bOlIl _cbooriantecl and r8$\lll$-orl9lllO(/. 'Mo needed 10 $IlOW Ulat we -.Id

•~.: •••:.:' ...'\•.:.:' 't

'.

'.

C3P1!Jm those I8'lpon$l'bla tor ll/tt, broak down iIey A10QaeclB tEilll et lheir SlXlrCll. and I«Iap
the IhnIat Gf temx allatks as far ttNay frnm lhII AmelIc:an peojlie Il5 possibllt. We needed to
wO<kwilh our most ll\I$ted 1I11i9$lD lIYoiclleab IhBtwOlld ~nilliollBl aeoJritY -«11$ or
. thei~ The re;u!ls speIllI for 1hemsel1lllS.
And if youlool< at our situation now~ am dI!IlInlnl frnm lhe lmmediate p0sl:!1!11
p'!!riod. Bringing those 14 HVOs to
.
-lhII ZUblIycIsIls S1CIlliO RSMs - was liI<e
~ .. Rne under tlllIl progrmnme in tho 'Well n had - . ojMlr.lling, as a lot Cf llUYs w....nt
happy going Oii MUlll Sua: UiQliii be: somsttiI1O eise to replace It. but we don·t tmawwhat
that looI<s fi)(a yet'
362.
Our SClUl'C$$ nava staled calegOticaJly to us 1llat lrDm IhB pilrspecl!ya ~ lhe CIA oIfidaill who
opill'8led iI, ll1<l $pec;fic: 9IpecIs c:J the 'High-Valua 1letBino&' progtamme on wNch tlia lUpOIl
CCflCllt'M'll9s - illdUding ll1<l E~pean 'OIael< sUes" - belong lD a ~ter 01 the post·9111 $lory Cllal is
essenliaily dosed.

I

n

N3I.M (2001) 36

DD

B5
364. On lhII olhorllilnCl, _ , ~ can!l!l!jl1lt do!!ll! lIul!!lIll B!isn Adtnlrjmlllpo 1:I ......!ll!j!
Ie reSCl1 once agelnll> _1Ilnn of
dolenl!on _ in!!Imls1It!oD !'!!!im!I1g !hi! Mfa "PNslde<I
BUiJf.a8im ili\ 8 Sii\5tillflbUi XQlIIIIl lll&lI_llOw no ~ In I1te CiA 1JIOfIIDIl'f"""the c1~ng 01 one <:hIiptllr, lIlen I'Q V9JY ntllCllllfllel1l» halalded lto8 opening 01 MOther. 'But as _
/lIgtI-mn1rinrt~_(;lI()ItJnId.l1tenHdtoOblaiff;~ fIomthem wII1ramalnt;>lfla)/-Mt1
havlttg a CIA ptOgf8rtI fill qUMflonlng tGfron'sts wtIl CllIlIiffll$ to b9 audBi to {IIllJ111(1 /lftr$Bv{1I(1

/nfomJatkiIf.'"
:l&5.

Indeed,

tnere lIRl cleat irdcatioN thai !!!!l !iVO ~ t!JLIlIlen md!yJU!ld in IJICIlQl
Abd m"", Il:l GuanlllnImo BiYiilM 2iiOi'lFbGnt ~ . _

1cl11i.1nlnSfer 10 CUba, "" appealS 10 haw been kep 1""'ll!Im"'- and 8Ulljocted to ~
.len~sitl>.

3S6.
Indeed AI-llllqi'$ _
to lhe.OepaltmenI til Deftlnsa only a!J:&T twIlnlalagonce Ya.'ue lD
lhII CIA had been ~ e.pIoited would seem to confimt l!'is tt.al8ment ftlJm one at _
inteJIjgooce _s;'17J6 CIA has goMfIom hal(flI/ nolnlwNtln inlsmlQIJ6cn to tJelflI/t!IIJ l1!J6IICYoi
~ III this jI1lHI. WlI'II only gNa them up to th/l DoD otll:e
got WBryINnrt "can out Of
11lIJm.'

"w

lV.

conctUdIng ftIClug/llJl
I1CpIIlIlaI my repon this ,_will eaIaly$e' _

K«aK3XAJ

-m

sa.

Oflto8 ielllII

'----Ipratlioes
!

lIMenca 01 faclUel claI!ty - JlQlll8blated by MCtBCY. ~-"P anr:l ciIlloti&sty - alloullhll elIIII;l
In whlCIllhll US and IW allies have lIIlQlIllfld. and partly bec2UlI8 a 1&,* pi !mI1lDif MJ:I
poliUc:aI WIll on bOlIISIdes oflhll AlIsl1UctD ~8l1XIIld _
eolu1ions.

By c:llUffying some til lto8 UlISpQI<en ~ tIlaIlIa.... PI'8\Ilausly he~ "" ~ In 1l1la --.:iM. I
flOlle I haw spIA'l1KI rtghl-mlldlld Amooicam IlIlIl ~ aliklIlnlO ~ ilia! _ CIlmmOI\
YlII..... in lllndIlm wIlIt Cllr COl'l'QJIOI\ tGtU1ty, cleperlcI en our IriIIng tD lind IhB abllWo prGiCN
Inhsnmt In US polldBe IllUllto8 'Hi\i1-V&ue OoItaina&'~.

388.

/

n

Mfll~mta·nt"S9""W7mo&\tr!~smmsetltiW:lmp~ii081q.rnms12a.c;.SO'!I&omvttf

~t=sttyPfnM;l'Nellltl.QO.OO:2$)l)Q.~n*~·""IIM1JwvWtOfJlf1./bi".Hoc.:r~"ctlMmen"lI1fIto
stM rhf pr.aD tQI AIinghtg Vlem ro Itl.~ M mllfl ~ thwn Wo rbt <:pM"'. (In. 01 ow.lO(ftlla ~to ~

"*

lining
Ilw/dUww ~"""'Ior ftW!NII)'Ntrin iIt~l7M'I·oHlI-~.~ IIItMtIbt ·cftLol~IQ.'" fh.II' mq . . d/lI """

(nl""rlftM'f~".

...

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pro;nm"'.-..o..,._ _..."" __'

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Ad cr2tQr, 17.10.20001S. ~ at =r1Jwww!!rf:trfmuesm• • • • *!I2QW11j'ZOOO1Q11.., MmI. the kt-. till . . .
~_

e.-~"""""

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h!h>Jhmwdatrptttr+;~rm'Me1'taf!a

UNCLASSIFIED
L0355

l

~

we have ccIIecllYeI~~" a !J!!I! gf Ibn lJS.Ifld "war on Iemlr.. ·· ", ..
no cllSWlopumngOl:niilYil$ 01# ofllill ~ priril)i6ilCiilii a lllit ..:. .,'

.. D w!llc:Il

•AlmCSIi'!:;;ilX:"yaars::l;;!;'1l\"'" We _

363. Al fi",t slgl1~ this 8tlaIysis sppeass VllIi<l. Th& 14 HIlDa whom ""r SOlSl:8S agraed 10 chcuss
with us (alleast on a n _ basis) haVe been lnlr1SfBmld 10 andonl <lI11lClW held 1II Guantenamo Bay.
They havll I'IlOIlivQcl _
fl\'ltn repnJSenlatille& Cf lto8 lI1lemalJcn&I Ccmmitlee of tile Red Closs
IQCRC), whidl lndiCB11lS that tIleir 1tnlatnooteI rf~ as cle!alnEM:I$ haYe at laSt been reglJll1l3ecl. at
1ea51 as tar as this parti<:U!lll' aspeet is a>naItrIOlI. ~ecl sa haYing I1i1jh 'iW'
irllemgenc» value fO( ll1<l CIA Q( lhII US Gowmtn8rd, .11
subject to Comba1Bnl Ste1u$
Review T~nlll (CSRl) proc:.oedings in 8llI1y 2000 10
-...
_
lIS 'UnIaw1ulenemy
c:oml>&llItllS'. Ullimlltely. lhe$e HvDo will be among
de'
to be charged with .pecIlic
Qffenl:es In iIldi'lidual mifilBry <:ommlssions ptQC8SS9S.

,.. ~ to 'h. Mll~JY CCHrrNIIIl:Int.lld 200e. II
and (B). 1M ~ ".tIal iuu." «II ~ <:lrdtr
~inng ..-utNllbtw ~t.rpf"l\~ Of ~e "nM~ .m .,pbtlotl ot 11w ~ ecmw~· lhll1 ~ then
to
pltmgaliHln, cam." out ~U'le ClI\ RW;Wl1UWSlltf>Ol'tI h&Yt: "Mht. ~ ~ ~.. muMPl;""""
the
l)eprartnvr.t. th.WMo HDllM, ~ol N~ lntefi;fnot _1'4 tle ~r.l 0( Da1mM~rnoIl;Iklltl
~tothIsEx.~Onktbdll'lg;~~be1o~th.'urmlOfOf:zooT:t.,.f\1II~~U&ttM~·CJAAwdaRulftO'l
T~ IMorrogaGortt: if) 17l.~ Yri i.mn. 25.OJ2ClO7. avU:ib1'1tt

B5

mCJnihs. The lnltlSfar of

~ o s10 lto814lr1Nfonl In Seplember 2atlll: dIai~ Ills eevetlll ~ InCIAdlllenI!on p)1O(

~Of"-_.·lIf""2DOr,_

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IB

UNCLASSIFIED
THE

PERMAN~T T~~RESENTATIVE

RELEASED IN FULL

UNITED STATES OF AMERICA
TO THE
UNITED NATIONS AND OTHER INTERNATIONAL ORGANIZATIONS
IN GENEVA

October 21,2005

LAl

Ms. Christine Chanct
Chairman
Human Rights Committee
Office of the High Commissioner
for Human Rights
Palais Wilson
CI-l-1211 Geneva 10
Dear Madame Chairman:
I have the honor to transmit to you the combined second and third periodic
report ofthe Fnited States ofAmerica, with annexes, provided under Article 40 of
the International Covenant on Civil and Political Rights. As you requested in your
letter of July 23, 2005, the report contains a discussion of U.S. impleme~i;.tion of
the Patriot Act. The Government of the United StateswiU be pleased to answer
further questions from the Committee on the basis ofthis report, in keeping with
the Committee's rules and standard practice.
Please allow me to express once agaiu the longstanding commilment of the
United States to the protection and promotion of human rights and to the work of
the (;omnllttce.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY; ARCIDE M BOLSTER
DATE/CASE!D; 30 JUL 2009 200706444

UNCLASSIFIED
- !
L0356

UNCLASSIFIED
THE

PERMAN~; T~E:RESENTATIVE

RELEASED IN FULL

UNITED STATES OF AMERICA
TO THE
UNITED NATIONS AND OTHER INTERNATIONAL ORGANIZATIONS
IN GENEVA

October 21,200S

Ms. Christine Chanet
Chairman
Human Rights Committee
Office of the High Commissioner
for Human Rights
PalaisWilson
CH- i211 Geneva 10
Dcar Madame Chairman:

In a letter that I had the honor to send you today, the United States of
America transmitted to the Committee on Human Rights the combined second and
third periodic report of the United States ofAmerica, provided under Article 40 of
the Inrcrnalional Covenant on Civil and Political Rights. Although not part of the
U.S. report, as described more fully in paragraph 130 ofthe U.s. report, I am
enclosing, as a mutter ofcourtesy, a separate description relating to individuals
under the control of the U.S. Armed Forces captured during operations against the
Taliban, Al-Qaid., and theif affiliates and supporters and to individnals captured
during military operations in iIay. This information updates information provided
in May ofthis year by the United States to the Committee Against Torture.
We hope that this information will be responsive to the cnncerns you
expressed in your lull' 23,2005 letter.

Rc:a:;l ;j!

t;;&2fe

y

Ambassador

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

UNCLASSIFIED
L0357

....,

UNCLASSIFIED
RELEASED IN FULL
UNITED
NATIONS

A
General Assembly

Distr.
GENERAL

LAI,

AlHRC/l/GIl
.27 JlUle 2006

Original: ENGLISH
HUMAN RIGHTS COUNCIL
First session
Agenda item 4

IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 601251 OF
15 MARCH 2006 ENTITLED "HUMAN RIGHTS COUNCIL"

Note verbale dated 20 June 2006 from the Permanent Mission of the
United· States ofAmerica to the United· Nations office at Geneva
addressed to the secretariat of the Human Rights Council

the Permfutent Mission of the United States of America presents its compliments of the
secretariat ofthe Human Rights Council and has the honour to request tha.t the secretariat
distribute the attached paper'on the Draft Convention for the Protection of All Persons from
Enforced Disappearance to aU Council members and observers and to include the document as
part ofthe official record.

• Reproduced in the armex as received, in the· language ofsubmission only.
ilE.06-12685

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

.UNCLASSIFIED
L0358

UNCLASSIFIED

,The United Stat.. appreciates the opportunity to addre3s thc Human
Rights Council on the Draft COllvention (or the Protectioll of All Person. from
,Enforced DlsappellTllnce. WI> thank the Chair of the Working Gronp and all
participants in tbe Working Group for focusing attcntion on this serious human
rights violation, a1tbough we exp,ress disappointment that the draft lext of the
Convention, albeit significantly imprOlied from earlier drafts, does not represent the
consenSus of nil member. of the Worklng Group. Tbe United Stat.s hIlS been an
active participant in the Working Group in eaeb session, and given our steady
partiCipation, we are providing our nnderstl\nding of, the intent of States that
'Pllrtitipated in the Worklll3 Group on a number of tore issues. We wiD' provide
further, detailed interpretations, when this document eomes up for consideration at
lhe UN General Allserobly.

We reatllnn and Incorporate berein our Closing

, Statement at the nna' session of the Working Group, reproduced at pages 48-49 of
tbe Working Group Report of the Fifth Session (EfCN,412006157) ("Report").
We underscore at the outset our view, sbated by ';,tlier delegations"that the
definition of the erline (ArtICle 2) would bave been mu cb imprOVed bad it been mOre
preeise and

jnelud~

an explicit niJuirelllent for intentionality, particularly tbe

SPt'Cifie intent to place a person outside die protection of the law. Tbe need for
intentionall~' W'IS recognized by the Chair, and recorded in p~ragrapb 96 of the

Report, wbieb states that an intentionality requirement is .implicit in the definition
of enforccd disappearance, rtleognizlug that "in, no penal system was there an
oITcllse 'of enforced disappearance
wltbollt, . intCllt."
We agree and r...mnn our
.
,
understanding

tha~ undc~ t~e Convention mells fl!Q, is a~ essentw! jD~rcdjcnt of the

....

UNCLASSIFIED.

------~...

'.-'"

'

L0359

UNCLASSIFIED
-3-

crime under Articles 2. 4, 6 (particularly Article 6(2». 12(4). 22, 25, &

otber

arllel...
Second;the United States expresses Its intent to interpret the Right t(l Truth
In thc preamble Dud in Arnd. 24(2) consistent with the Commission on Humaa
Rights Resolution aD the Right to Tmtb (2005/66), which states that the righl may
be l'ecogni%ed in various legal SYstems (sueh Iill our own) as freedom of information,
the rigbt to know, or the rigbt to be informed, and also consistent with the
latel'l1ational Covennnt all Civil and Political RighI! wblch speaks to tbe right to
seek, r""eive and 'impart information. As noted in our Explanation of Posltlon
delivered ,nllon adoption nf UNCRR rcsolutlo,n 2005/66, 1M United States' position
on the right to know lUIS not ohaIlged sJnee tbe fCRC Conference on the Missing ill
February 2003

lIS

well ~s at the ZS" ICRClRed Cross Conference in December 2003;

, that is, the United Stat"" 15 eommitted

to advancing the '"'use of familillS dealing

with Ihe problem of missing persons; however, we do not acknowledge any ncw
iniernational right orobligalion in this regard. For the Ullited States. wbieh is not II
part)' 10 tb. 1977 Additional, Protocol 1 to the Geneva Conventions and bas no
Qbligalions vis-a-vis any "right to truth" under Article 32 of that instrument,
families arc lnfo)'ll\ed of tite fate of tbelr miSSing family memhe... based on the
longstanding polley of the Uniled States and nol beCllUSe or Article 32.
Third, the United States wishes to place on 'record our understanding of,
Article 43 of the draft COllvcntioo. We understand this provision to confirm that the
proVisions <If rbe iaw of armed conniet, also called International bumanitarian Jaw,

,

remain th.lex spedolls in situatiotlS of armed conlliet and other 511l1arlons 10 wbich

,UNCLASSIFIED
L0360

UNCLASSIFIED
, -4.

loternational humanitarian law applies. The United States uoderslnods Artiele 43
to operate, us a
-'

~sa\'ings

elallSe" In order to ensure that tbe relevaot provisions of

international bumanitarlall law take precedence over any otber pro\"isions
eontalned in this Convention.
Fourtb, tbe United States continues to supporttbe liSe of an existing treaty
body to perform tIIonitoriog fUDetlollS, that Is, the Hum8JI Rigbts Committee, whieb
currently deols with foreed disappearances, In view of the Committee's e>tpertise; in
tbe interests of collsisteDey of JUrisprudenee, ellieteaq", avoidance of redundancy,
and eost; and in light of the ongomg proposals Cor treaty body reCorm. We "'Quid
bope that, per Article 27 of the draft Convention. States Parties adopt in the flltare
use of the Human Rights Committee as the monlt61ing body,
In addition to the polllts expressed obove, we place on the retord our

reservations, many of wbieb are noted In tbe Report and in our Closing Statement,
to, inter alia, tbe followlog artieles, wbleb Is anlUustrativc (uot exhaustive) list:

»

Article 4 on erill1lnalizatloo shonld Ilot be reod to require various dOlllestl~
legal systems to eaaet "a autonomous offense oC eaCorced disappearanee,
which Is unneees...ry and, from a praetlcBl standpoint, nnworkable 10, for'
example, a federal S)'Slem such as onr own.

;;.. Article 5 requiring crlminalization of crimes &gainst bumanity Is vogue,
aspirational In nature, aod inappropriate os an operative treatY provision.
Tbe

Unit~d States

ogrees wltb the statement ill paragraph 106 of the Report

that Artiele 5 would "not create any additionat'.obllgatioDs

00

States to

a.eede to particular instruments or omeDd tbeir domesti<: legislation."

UNCLASSIFIED
L0361

UNCLASSIFIED
-5-

;. Article 6(2) on the unanilability of a defense of obedience to superior orders
in a prosecutioD related to eoforced disappearaoce could under certain
cireumstances be.ineousistent with due process guarantees and couid subject
unwitting governmeut penonnel to tbe possibility of prosecution for adlons
, tbat they did not and could Dot know were probibited. Therefore, as stated in
paragraph 109 of tbe Report, the Unltcd States interprets Article 6(:'.) to
establish nO criminal rClipoDslbility on the part nf lUI indiVidual unaware or
participating in the eommission or an enforced disapPcorllllce.
.. Article 8 nn statute of limitations presents problems of implementation in

Ii

fedenll system and contnins nnclear text in paragraph :Z.'
::- Artier. 9(2)

00

"foUlld In" Jurisdietlnll remains unacceptnble to the United

States,'..pec!"lly in view ofthe laek of precision in tbe defiDltlnn of enforced
disappearance.
;V

Article 16 nn non.reJoule~t, which refers to violations'of International
humanitarinn law in the cnnlltry of retnrn, does lint COliform to internallnn.1
principles on "on-,.,/oulemint, as articulated in

tbe, 1951 Refugee

Con,'en liou',
;;.. Article 17 nn standards for and 'access to places of detentinn retains the
possibility of conrnet with constitutional and other legal provisions In the
laws of some States; accordingly we would Interpret the term "any persons
witb

II

legitimate Interest" in Articles 11, 18, and 30 in accordance with Ihe

domestic law of a State.

.~.:..

.... _-.

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-6t

;. Article J8 on access to information similarly retains tht'po$$ibIUty or conflict
with constitutional and other legal provisions of a State lind sets
unreasonable standards gtlaranteeing infol'lllat\on.

r

Article 22 on additional ctimlnali:l:atlon, among other coneems, shoold
contain an express intentionality requirement, and the United States

\I'm

interpret it to contain such an intent requirement (as 'noled above)~
:;. Article 24 on the right to the trutb and reparation conlllins text that is ngal'
and at the same lime overly specific, employs .... overbroad definition of a
"vielim," alld may not be consistent with a common law system for grantiJlg
remedies lUll! compensation.
,. Article 25 on children must be interpreted cOllslstent with adoption laws and
otber relevant domestic-laws llBd with international nbligatloDs-of the State
regarding ehildr"".
, The United SllItes respectfUlly reqnesta tbat Ita view. be made a part of the
official raeon! of the Human RIghts CounciL

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LAZ-O
General Statement ofthe United States: Forced Disappearances Text
As the task of the Working Group draws to a close and responsibility

is passed to the Human Rights Commission to consider further work,
we express sincere appreciation to the Chair and his team, including
the Secretariat, for your enormous dedication, skill, and
industriousness during negotiations on a binding instrument to
combat this heinous crime.

We also commend the State delegations, the independent experts, the
JCRC, and non-governmental organizations for their intense
commitment, expertise, tireless work, and collegiality throughout,
and give special thanks to the families of the disappeared for bearing
witness to this terrible scourge.

At the same time, as we have said before, in order to produce a
. document that will attract the widest possible number of states
parties, treaty negotiations should be deliberate, unhurried, and
careful, allowing for full expression of views by all representatives,
with every effort to achieve a consensustexfthat can be applied in all
legal systems.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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We regret that often the pace of negotiations,among other factors, has
resulted in a document that includes provisions the United States does
not support, and .to which we have registered key reservations. These
reservations include, but are not limited to the following:

Preambular paragraph 7 and Articl,e 24(2) on the RIGHT TO
THE TRUTH. This is a notion that the United States views only in the
context of the freedom of information, which is enshrined in Article 19
of the ICCPR, consistent with our long-standing position under the
Geneva Conventions. We are grateful for the good wi.1 shown in
seeking compromise language in the Preamble, but our reservations
remain concerning this issue, including with respect to Article 24 (2),
which we read in this same light.
We have
.. serious concerns about Article 2 which .we·firmly believe·
needs a more focused DEFINITION that includes the element of
intentionality. This is the core or'the Convention and we believe it needs
a great deal more work.

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Article 5 requiring domestic legislation criminalizing CRlMES
AGAINST HUMANITY remains insufficiently defined and
inappropriate to an operative paragraph in the text.
As we have noted, the lack of a DEFENSE OF SUPERIOR
ORDERS in Article 6(2) could unfairly subject 'unwitting military and
law enforcement personnel to the possibility of prosecution for actions
that they did not and could not know were prohibited.
Despite some modifications, the specific requirements for a
STATUTE OF LIMITATIONS in Article 8 continue to present a
problem ofimplemtmtation within a Federal system like that of the U.S.
Likewise, Article 4 should not be read to require our various domestic
legal systems to enact an autonomous offense of enforced
disappearance, which is unnecessary and, from a practical standpoint;
extremely burdensome and unworkable in the United States.
We also note that our continuing objection to Article 9 (2)
concerning "FOUND IN" JURISDICTION has not been satisfactorily
.addressed.
We have clearly stated for the record our continuing reservation
to the absence oflanguage in Article 16 explicitly conforming this text to

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the principle of NON-REFOULEMENT articulated in the 1951 Refugee
Convention.
We find that Article 17 concerning ACCESS TO PLACES OF
DETENTION, despite significant improvement, retains the possibility
of conflict with constitutional and legal provisions in the laws of some
state parties.
Finally, we remain unconvinced·that the appropriate vehicle for
implemeutation oHbis instrument is a NEW TREATY MONITORING
BOD)'.
Despite our continuing reservations, let me reiterate to you, Mr.
Chairman, and your magnificent staff, the appreciation of my
delegation for your outstanding leadership and the warm, cooperative
and collegial spirit which defined these negotiations.

#18367

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"

LA2...L(
U.S. Government's Initial Intervention at
'Working Group Negotiations on a Draft
Forced Disappearances Convention
(January 6, 2003)
The United States delegation takes great pleasure Mr. Chairman,
in warmly congratulating you on your assumption of the
chairmanship of this working group, for all of'the reasons that
have already been mentioned.
The United States deplores forced disappearances and regards them
as a serious violation of human rights and fundamental freedoms,
which, as others have correctly pointed out, result in several
associated violations of human rights guarantees. These include,
for instance, deprivation of the right to liberty and security of
the person, the right against arbitrary arrest or detention; and
the rights to due process and'a fair trial, just to mention a
few. Moreover, too often, forced disappearances lead to some of
the gravest violations, such as torture and deprivation of the
right to life.
'
So there should be no mistake that the U.S. harbors no toleration
for the despicable collection of violations associated with the
phenomenon of "forced disappeara'~ce."
Nonetheless, the U.S. finds itself in agreement with several
delegations that have suggested in various ways that the Working
Group has much work ahead of it in order to elaborate a document
that could attract widespread acceptance within the international
cOIUIl'.unit y .
First, for example, reaching consensus on a legal definition,of
"forced disappearance" that would be precise and not prohibit
legitimate law enforcement and military activities presents a
daunting challenge for the Working Group. While we recognize the
effort invested in the 1998 Sub-Commission draft on forced
disappearances, we believe that its definitiqnal section is in
several respects far too broad to be workable in the ,practical
sense of defining and penalizing a crime~ As we will point out
along the way, the draft text contains other deficiencies which
will require close' scrutiny and revision. In this regard, we
believe that the Working Group should make a virtue of ,precision
in our negotiations.
Second, whatever draft instrument results from this process
should be compatible with internationally accepted standards and
guarantees, such as those contained in the ICCPR.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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UNCLASSIFIED
Th~rd,

we believe the proposed convention should ·be carefully
crafted to target forced disappearances without capturing
collateral issues and bodies of law. for example, we believe
that existing international humanitarian law should continue to
govern and resolve issues arising from armed conflict.
A fourth concern is that, in our view, a convention should place
its greatest emphasis on strengthening national laws and law
enforcement practices, which is where the problem of forced
disappearances is typically confronted.
Fifth, we would not support the creation of a new treaty body to
oversee compliance with a new convention. We oppose duplication
of the work and the capabilities of existing treaty bodies, and
would wish to avoid additional costs and efforts associated with
such duplication. For instance, several delegations have made
the interesting proposal that we frame this instrument as an
optional protocol to the ICCPR. An advantage of so doing may be
that the Human Rights Committee could serve as the monitoring
mechanism.
A sixth concern relates to prov1s1ons that would clearly, from
the outset, impede consensus, such as a no-reservations provision
and certain other provisions contained in the 1998 draft.
These comments represent some of our initial thoughts. Others
will likely be raised in· the ·course of ·the Working Group's
deliberations. We look forward. to actively participating in the
work of this body.
.

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HRc <SU-Io(}'lV?:'wY\J
trrI V{ebi, \e.

RELEASED IN FULL
L4z..~
United States/Selected Core Legal Reservations to the Draft Forced Disappearances
Instnnnent

The United States maintains several core legal reservations to the draft forced
disappearances treaty text and, for example, proposed the following textual amendments
to draft treaty provisions during the course of the five formal negotiating sessions of the
Working Group to elaborate it binding normative instnnnent to prohibit and punish forced
disappearances. The following list oftextual amendments proposed by the United States
during negotiations is illustrative and not exhaustive. Please consult our written
statement on the draft convention distributed at the Human Rights Couucil during its first
session (and posted on our website) as well as our Closing Statement at the conclusion of
negotiations in October 2005 (reproduced at pages 48-49 of the Report of the Fifth
Session of the Working Group) for additional infurmation on ~ views of the United
States.

An illustrative sampling ofproposed textual amendments proffered by the United
States delegation during negotiations:

DEFINITION -Article 2
"For the purposes of this instrument, enforced disappearance is considered to be the
arrest, detention, or abduction of a person by or with the authorization, support or
acquiescence of the state, followed by a refusal to acknowledge that deprivation of liberty
or by concealment of the fate or whereilbouts ofthe disappeared person, with the
intention of removing that person from the protection of the law for a prolonged period of

time."

.

CRIMINALIZATION - Article 4
"~ach State Party shall take the necessary measures to ensure that an enforced
disappearance is fully covered uuder its criminal or penal law. "

CRIME AGAINST HUMANITY - Article 5The'United States supporting reframing Article 5 as a.preambular provision.

UNITED STATE~,DEPARTMENT OF'STATE
REVIEW AUTII,ORITY: ARCHIE M BOLSTER
DATE/CASE ID;'~OJUL 2009 200,706444,
•

.:. tt:;"",,-, .•

.;>~ . .
~:'.

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DEFENSE OF SUPERIOR ORDERS - Article 6(2)
"No order or instruction from any public authority, civilian, military or other, may be
invoked to justify an offence of enforced disappearance ifthe accused knew that the order
was unlawful or a person of ordinary sense and understanding would have known the
order to be unlawful."

STATUTE OF LIMITATIONS - Article 8

an

"A State Party which applies a statute oflimitation in respect of enforced
disappearance shall take the necessary measures to ensure that the term of limitation is
proportionate to the extreme seriousness of the offence."

JURISDICTION- Article 9
"1. Each State party ~haIl take the necessary measures to establish its competence to
exercise jurisdiction over an enforced disappearance:
(a) When the offence is committed within its territory;
(b) When the alleged offender is one of its nationals; and
(c) When the disappeared person is one of its nationals and the State Party considers
it appropriate."

CONSULTATION WITH CONSULAR AUTHORITIES - Article 10(3)
"Any foreign national held in custody pursuant to paragraph one may communicate with
an appropriate representative of the state of which he'or she is a national in accordance
with applicable intemationallegal obligations."

NON-REFOULEMENT - Article 16

/'

"I. No State party shilll expel, return ("re]tu'refllj;' or extiaaiftfef!;\;rl t"({imother State
where there are substantial grounds for believing that he or she would be in danger of
being subject to an enforced disappearance.

UNCLASSIFIED
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2. For the purpose of detennining whether there are such grounds; the competent
authorities .shall take into account all relevant considerations, including, where
applicable, the existence in the State concerned of a consistent pattern of gross, flagrant
or mass violations of human rights"
3. The benefit of the present provision may. not, however, be claimed by a person whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a fmal judgment of a particularly Serious
crime, constitutes a danger to the community of that country. "

RIGHT TO THE TRUTHIFREEDOM OF INFORMATION - Article 24(2)
../

"Each victim has the freedom to seek, receive, and impart infonnation regarding the
circ~stancesof the enforced disappearance, the progress and results of the investigation
and the fate of the disappeared person. Each State party shall take appropriate measures
in this regard."

TREATY MONITORY BODY - The United States firmly supported use of an
existing treaty body, the Human Rights Committee.

»

The Human Rights Committee already deals with forced disappearances,
which violate numerous provisions of the ICCPR.

»

The Human Rights Committee should eontinue to perform this monitoring
role, including under this instrnment, for reasons of:
.
o

expertise,

o consistency of jurisprudence,
o efficiency,
o avoidance of redundancy, and
o cost savings.

»

In view of the specific proposal of the High Commissioner on Hqman Rights
to create a single, unified, standing treaty body, and the widespread
acknowledgement of the need for treaty body reform, the creation of a new
body at this juncture is not warranted.
.

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Doc 26771

Drafted: LIHRR - Gilda Brancato
Cleared: IOIRHS - Thomas Johnson

DRLIMLA - Lynn Sicade.
. Mission Geneva - Jeffrey Kovar

.,T'•.

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RELEASED IN FULL

L42-'l
The Chair of the Working Group for the elaboration of a Treaty to Punish and Prohibit F.orced
Disappearances inquired of the United States delegation as to the red-lines for the United States
Government regarding this proposed treaty text. The following list, which is non-exhaustive,
highlights areas of critical concern to the United States Government. Articles are treated in
numerical sequence and not in order of importance.
Critical Provisions for the United States in the Forced Disappearances Draft Treaty Text
include, but are not limited to, the following:

PP4, Articles 16bls, 11 and 22· Right to Know - It Is critical for the United States to
have acceptable text on the "RIGHT TO KNOW", which recognizes the need of families to have
access to the truth without endorsing unacceptably broad "rights' based language and without
requiring provision of information that could impair nalional security, law enforcement, or privacy
interests.
Article 1 • Definition.
We have urged since the first treaty negotiation session in January 2003 that the definition of
forced disappearances must be sufficiently precise, narrow and tailored to the problem of forced
disappearances so as not to capture lawful military and law enforcement activities. Thus we
believe that inclusion of an express intent requirement in the definition is extremely important.
F.urther, inclusion of state action as an element of the definition is also of critical importance to the
United States (and many other delegations) for reasons expressed at length during the
negotiations.
.

As we have also urged throughout the treaty negotiations, the definition is critical not only
intrinsically but also because an overbroad or otherwise flawed definition renders even more
problematic other thorny provisions in the text, InclUding:
the jurisdiction provisions (notably "found in" (quasi-universal) jurisdiction),
elimination of a defense of superior orders,
'- command responsibility,
.0 non-refoulement,
- reqUired refusal to obey an order relatlng to a forced disappearance,
o.
0-

and other provisions.
One definition proposed by the United States is the following:
"the arrest, detention or abductlon of a person by, or With the aUthorlzallon, support or
acquiescence of, a State, followed by a refusal by the State to acknowiedge thai deprivation of
freedom or to give informallon on the fate or whereabouts of such persons, with the intention of
removing that person from the protection of-the law for a proionged period of time."
During the upcoming negotiations commencing January 31, the United Stales delegation
will be pleased to give consideratlon to alternative definitions submitted by other delegations, for
example by the delegation of Japan, with a view to their precision and inclusion of an intent
requirement.
Article 2 • Crimlnallzatlon

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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A treaty provision requiring enactment of a new criminal statute (or statutes) containing a
dedicated offense of forced disappearance would in and of itself defeat USG support of a treaty
text Under the United States Constitution, the United States has a federal system, and much
criminal law authority is retained by the fifty states.
Article 2bls- Crime against Humanity

An operative provision in the treaty on crime against humanity is not acceptable to the
United States. .
Article 4 • Elimination of a defense of superior orders
The United States has consistenfly maintained that the overbroad definition of a forced
disappearance makes it difficult for the United States to support elimination of a defense of
superior orders. The United States was able to support the provision In the Convention Against
Torture that eliminates a defense of superior orders because there we took the view that torture
was limited to deliberate and calculated acts of an extremely cruel and Inhuman nature, which
an individual of ordinary sense would know to be criminal. We are unable to reach the same
conclusion regarding forced disappearances as defined in the treaty text, and therefore believe
that principles of fairness and due process compel maintenance of a defense of superior orders.
Article 5 - Statute of Limitations
While the United States appreciates that the statute of limitations provision has been
revised to require that the statute of limitations be commensurate with the seriousness of the
offense, which is a substantial improvement over earlier drafts, other provisions in the statute of
limitations article remain problematic, in particular article 5(2) which reads as follows:
"The term of limitation for criminal proceedings which is provided for in paragraph 1 shall be
suspended for as long as no effective remedy is available in a State Party to any victim of
enforced disappearance."
There is precedent in treaty law for toiling (or suspending) a statute of limitations during the
period that the defendant is absent from the jurisdiction or has otherwise evaded justice, and
there is recognition in law for the concept of a continuous offense. However, the language above
raises the question whether the ex post facto principle would be implicated. If the Intent is to tali
or suspend the statute of limitation because a State has not implemented a criminal statute, any
subsequent enactment of a criminal statute would not be applicable to offenses occurring prior to
enactment. Thus, we find the above provision to be totally unclear as to meaning and as to the
obligations it would impose on a State Party.
Moreover, to the extent that the provision intends to link a criminal statute of limitations with the
availability of civil remedies, such a provision would be highly questionable.
Statutes of limitations for a forced disappearance are a matter of state law under the federal
system in the United States, and it would not be possible to guarantee that all 50 states' statute of
limitations would operate in the fashion contemplated in the treaty texl.
Articles 9-11 : Jurisdictional provisions
Precise criminal jurisdictional provisions, with mandatory jurisdiction limited to territorial
and nationality jurisdiction, are critical for USG support of a treaty text. "Found in" jurisdiction,

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when coupled with an overbroad definition of forced disappearance, is unacceptable to the
United States.
Article 12: Investigations, access to places of detention
Access to sites of detention is unacceptable unless access is made "subject to domestic

law."
Articles 13 and 14: Extradition and Legal Assistance
The USG believes that these provisions should track the extradition and legal assistance
provisions in the Optional Protocol on Child Sale, Prostitution and Pornography. We would need
to review final provIsions before decIding whether provisIons are acceptable.
Article 15bls - Non-refoulement
It is crlllcal for the United States that the non-refoulement provision conform to existing
international law on non-refoulement. Among other factors, the non-refoulement provision
should contain identical or nearly identical text to that contained in the non-refoulement provision
in the Convention on the Status of Refugees article 33(2). Article 33(2) reads as follows: "The
benefit of the present provision may not, however, be claimed by a (personj whom there are
reasonable grounds for regarding as a danger to the security of the country in whIch he is, or
who, having been convicted by a final judgment of a particUlarly serious crime, constitutes a
danger to the community of that country."

Article 22 - Reparation
The reparation provision would be acceptable if it tracked the compensation provision of
CAT (CAT Article 14). We would need to review final text to determine if provision on reparation
Is acceptable.

Part II - Treaty Monitoring Body
It is critical for the United States that if the instrument lias a treaty monitoring body, that
an existing treaty monitoring body is used, especially as the Human Rights Committee already
has competence over forced disappearances, Including Individual complaints of forced
disappearance against States Parties to the First Optional Protocol to the ICCPR. In this regard,
any individual complaint mechanism in the disappearances instrument must be optionai and
should conform with existing treaty individual complaint mechanisms.

The predicate of state consent for a site visit by the treaty body must be maintained.
The United States reservse on other provisions in Part II notably the provision regarding
referral to the UN Secrelary-Genera1.
Military tribunals.
Should a prohibition on milllary proceedings be re-introduced into the text of the
Instrument, the United States would be firmiy opposed.

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Schou, Nina E
From:

Harris, Robert K (L-HRR)

Sent:

Monday, December 13,20043:06 PM

To:

Dolan, JoAnn (L-PM); Dorosin, Joshua L (L-PM); Deeks, Ashley S (L-PM)

Cc:

Legal-L-HRR (SBU); Witten, Samuel M (L); Thessin, James H (SBU); Andre Surena Final (Email)
.

SUbject:

Convention Against Torture Period Report

Attacl)ments: Annexes Convention Against Torture Period Report.doc
JoAnn and Josh,
Attached is a draft of the annex to the USG's CAT report on USG detainees in Iraq, Afghanistan and GTMO. I
have not read it yet, other than to make a suggested edit in the second paragraph. As we are hoping to get the
report fully cleared this year and as we need to get DOD clearance and input, we are on an extremely tight
internal clearance schedule. If you could give us your comments by tomorrow at 10, we will try to get them in
and circulated to DOD.
Sorry for the short fuse.
Bob

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DA1j}i2~~¥>: 30JUL 2009 200706444

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U.S. Government's 1·year Follow·up Report to the Committee's
Conclusions & Recommendations

'00 PDF version
United States Response to Specific Recommendations
Identified by the Committee Against Torture
In its conclusions and recommendations regarding the second Period report ofthe United States of America, the
Committee Against Torture requested thatlhe United States provide, within one year, information on its response to
specific recommendations identified by the Committee.[jJ These specific recommendations and the United States
responses to them are provided be low.
Paragraph 16
Recommendation:
"The State party should register ali persons it detains in any territory under its jurisdiction, as one measure to prevent acts
of torture. Registration should contain the identity of the detainee, the date, time and· place of the detention, the identity of
the authority that detained the person, the ground for the detention, the date and time of admission to the detention facility
and the state of health of the detainee upon admission and any changes thereto. the time and place of interrogations, with
the names of ali interrogators present, as weli as the date and time of release or transfer to another detention facility."
Response:
As an initial matter it should be noted that the Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (hereinafter referred to as "the Convention") has no provision requiring the registration of

prisoners.

.'

Although there is no unified national policy governing the registry of persons detained in territory SUbject to the jurisdiction
of the United States, relevant individual federal, state, and local authorities, including military authorities, as a matter of
good administrative practice generaliy maintain appropriate records on persons detained by them.~ Such records would
generaliy include the information mentioned in the Committee's recommendation.

..

.:~..

.

ParagraPh.20 .':
Recommen~ation:

"The State party should apply the non-reloulemenl guarantee to ali detainees in its custody. cease the rendition of
suspects, in particuiar by its inteliigence agencies, to States where they face a real risk of torture, in order to comply with
its obligations under article 3 of the Convention. The State party should always ensure that suspects have the possibility to
.
chalienge decisions of reloulement."
Response:
There are two issues that appear to be raised in this conClusion and recommendation. The first issue is the evidentiary
standard that would trigger application of CAT Article 3. As the United States described to the Committee.[il] pursuant to a
formal understanding the United States flied at the time it became a State Party to the Convention. the United States
determines whether it is more likely than not that a person would be tortured, rather than whether a person faces a "real

UNffli:9slJ'\\."'f'Es DEPARTMENT OF STATE
REVIEW t\UTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

http://www.state.gov/gldrl/rls/100736.htm

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U.S. Government's i-year Follow-up Report ~~&&lRI~sions & Recomme...

Page 20f9

The second issue addresses the territorial scope of Article 3. Although the United States and the Committee hold differing
views on the applicability of the non-refoulement obligation in Article 3 of the Convention outside the territory of a State
Party, as the United Slates explained to the Committee at length,[1\ with respect to persons outside the territory of the
United Slates as a matter of policy, the United States government does not transfer persons to countries where ij
determines that it is more likely than not that they will be tortured. This policy applies to all components of the government,
including the intelligence agenclesJQlAlthough there is no requirement under the Convention that individuals should have
the possibility 10 challenge refoulement, United States practice in the different areas in which this provision comes into play
is designed to ensure that any torture concerns, whenever raised by the individual to be transferred, are taken into
account. For example, in the context of immigration removals from the United States, as noted in the Untted Slates
periodic report,l§] there are procedures for alleging torture concerns and procedures by which those claims can be
advanced.
Paragraph 21
Recommendation:
"When determining the applicability of its non-refoulement obligations under article 3 of the Convention, the State party
should only rely on "diplomatic assurances' in regard to States which do not systematically violate the Convention's
provisions. and after a thorough examination of the merits of each individual case. The State party should eslablish and
implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective
post-return monitoring arrangements. The Stale party should also provide detailed information to the Committee on all
cases since 11 September 2001 where assurances have been provided."
Response:
As explained to the CommitteeJ11 the United States undertakes a thorough, case-by-case analysis of each potential
transfer where diplomatic assurances are involved. This analysis takes into account all relevant factors, including all
. available information about the compliance of the potential receiving state with its international obligations, including those
under the Convention, and the merits of each individual case.
.
The United States would like to emphasize to the Committee, as it did on other oceasions,Ullthat diplomatic assurances
are used sparingly but that assurances may be sought in order to be satisfied that it is not "more likely than not" that the
individual in question will be tortured upon return. It is important to note that diplomatic assurances are only a factor thaI
may be considered in appropriate cases and are not used as a substitute for a case-specific assessment as to whether it is
not more likely than nolthat a person will be tortured if retumed.
Procedures for obtaining dipiomatic assurances vary according to the context (e.g., extradilion, immigration removal, or
military custody transfer) and have been made available to the Committee. rID For example, the United States report
provides information regarding regulatory procedures for consideration of diplomatic assurances in the i(Omigration
removal context, which provide for the opportunity to allege torture and advance such c1aims.[1QJ In addition, allached in
Annex 1 is a declaration by Clint Williamson, Ambassador-at-l.arge for War Crimes Issues at the Departmenl of Slate,
dated June 8, 2007, and filed in United States federal court. This declaration explains in detail the process for obtaining
and considering diplomatic assurances for detainees to be transferred from Guantanamo. tt supersedes the declaration by
former Ambessador Pierre Prosper that was prOVided to the Committee as part of the Second Periodic Report.lll1 For the
Committee's information, With regard to post-return monitoring arrangements, the United States agrees that follow-up
following return is important. Indeed, the Untted States has requested and obtained information about the situation of
individuals who have been transferred to other countries subject to assurances. As explained to the Committee, the United
States would pursue any credible report and take appropriate action if it had reason to believe that those assurances
would not be, or had not been, honored.
The United States does not unilateraliy make public the specific assurances provided to it by foreign governments.
Reasons for this policy were articulated in the materiais provided to the Committee,l11J including the fact that unilaterally
making assurances public might make foreign governments reluctant in the future to communicate frankly with the United
Slates concerning important concerns related to torture or mistreatment.
Paragraph 22
Recommendation:

"The State party should cease to detain any person at Guantanamo Bay and close this detention facility, permit access by
the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State-

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where they could face a real risk of being tortured, in order to comply with ils obligations under the Convention."
Response:
Among the actions purported by the Committee to be governed under the Convention - including, for example, (1) closing
Guantanamo; (2) permitting judicial access by enemy combatant detainees in that facility; or (3) not returning individuals
who face "a real risk" of being tortured - the first two lack an arguable textual basis in the Convention, while the third issue
is discussed atlenglh in materials proVided to the Committee[1QJ as well as in the response to the Committee's
recommendation in paragraph 20 above.
As the United States explained to the Committee,[W the United States is in an armed conflict with al-Qaida, the Taliban,
and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled
under the law of war to hold them until the end of hostilities. The law of war, and not the COnvention, provides the
applicable legal framework governing these detentions.
Without going into further detail about its legal disagreements with the Committee's sweeping legal assertions regarding
the scope of the Convention - which are addressed in other responses[1§} - the United States has made it clear in many
different settings that it does not want to be the world's jailer. Although the Committee calls for the dosure of Guantanamo,
it does not appear to take into account the consequences of releasing dangerous terrorist combatants detained there or
explain where those who cannot be repatriated due to humane treatment concerns might be sent. The United States will
continue to look to the international community for assistance with resettlement of those detainees approved for transfer or
release.
The United States does permit access by Guantanamo detainees to judicial process. Every detainee in Guantanamo is
evaluated by a Combatant Status Review Tribunal (CSRT), which determines whether the detainee was properly dassified
as an enemy combatant and includes a number of procedural guaranlees. A CSRT decision can be directly appealed:to a
United States domestic civilian court, the Court of Appeals for the District of Columbia Circuil. Providing such an
opporlunity for judicial review exceeds the requiremenls of the law of war and is an unprecedented and expanded
protection available to all detainees at Guantanamo. These procedural protections are more extensive than those applied
by any other nalion in any previous armed conflict to determine a combatant's status.
Aller a CSRT determination, each enemy combatant not charged by a Military Commission receives an annual review to
determine whether the United States needs to continue detention. An Administrative Review Board (ARB) canducts this
review.
Since the Committee's consideration ofthe United States report in May 2006, approximatety 120 detainees have departed
Guantanamo. This process is ongoing. Updates are available at http:/twww.defenselink.mil/news/nrdgb.html.
These transfers are a demonstration of the United States' desire not to hold detainees any longer than necessary. It also
underscores the processes put in place to assess each individual and make a determination about their detention while
hostilities are ongoing - an unprecedented step in the history of warfare.
At present. approximately 375 detainees remain at Guantanamo, and approximately 405 have been released or
transferred. The Department of Defense has determined - through its comprehensive review processes - that
approximately 75 additional detainees are eligible for transfer or release. Departure of these detainees is SUbject to
ongoing discussions between the United States and other nations.
Paragraph 24
Recommendation:
"The State parly shOUld rescind any interrogation technique, including methods involving sexual humiliation,
"waterboarding", "short shackling" and using dogs to induce fear, that constitutes torture or cruel, inhuman or degrading
treatment or punishment, in all places of detention under its de facio effective control, in order to comply with its obligations
under the Convention.n
Response:
As an initial matter, as the United States has informed the Commiltee,[1§] the United States is in an armed conflict with al- .
Qaida. the Tatiban, and their supporters. As part of this conflict, the United States captures and detains enemy

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combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the
Convention. is the applicable legal framework governing these detentions. Moreover, as the Committee is aware,[11] the·
United States disagrees with the Committee's contention that "de facto effective control" is equivalent to territory subject to
a Stale party's jurisdiction for the purposes of the Convention.
Leaving aside Interpretive issues arising under the Convention, as a matter of United States law, there is a ban on torture
of anyone under the custody or physical control of the United States Government. Torture, attempt to commit torture, and
conspiracy to commit torture outside Of the United States by U.S. nationals or persons present in the United States are
crimes under the extraterritorial torture statute.[1!l1 Moreover, pursuant to the Detainee Treatment Act of 2oo5,[1ID cruel,
inhuman, or degrading treatment or punishment of anyone under the custody or physical control of the United States
Government is prohibited. All detainee interrogations must be conducted in a manner consistent with these prohibitions,
Common Article 3 of the Geneva Conventions, as well as any greater applicable law of war protections.
In September 2006, the Department Of Defense released the updated 000 detainee program directive 2310.01 E, and the
Army released its revised Field Manual on Interrogation. These documents are attached in Annexes 2 and 3, respectively.
They prOVide guidance to military personnel to ensure compliance with the law, and require that all personnel subject to
the directive treat all detainees, regardless of their legal status, consistently with the minimum standards of Common
Article 3 until their final release, transfer out of DoD contrOl, or repatriation. Of course, certain categories of detainees,
such as enemy prisoners of war, enjoy protections under the law of war in addition to the minimum standards prescribed
by Common Article 3.
Furthermore, under the Military Commissions Act of 2006,~ serious violations of Common Article 3, inclUding torture and
cruel or inhuman treatment, are criminal offenses. In defining precisely those violations that are subject to criminal
prosecution, greater clarity is provided to officials involved in detention and interrogation operations on what treatment
violates United States and international law. A copy of the Military Commissions Act is attached at Annex 4.
Paragraph 33
Recommendation:
"The State party should adopt all appropriate measures to ensure that women in detention are treated in conformity with
international standards."
Response:
The United States provided the Committee with information about its efforis to ensure appropriate treatment of women in
detention facilities, including action taken against gender-based violence and sexual abuse.[2jJ As the United States told
the Committee,@ incidents of shackling of female detainees during childbirth are extremely rare and are not a standard
procedure. It also provided the information on these issues in response to other questions from members of the Human
Rights Commlttee.[Z;l1
In Its written reply to the Committee's Ust of Issues, the United States prOVided Bureau of Prisons statistics regarding
enforcement actions for sexual abuse against prtsoners.[24] These figures were for calendar year 2004, the latest year for
Which statistics were available at the time. Updated figures are prOVided below.
During Calendar Year (CYj 2005. the latest figures available, there were 17allegations of inmateoOn-inmate nonconsensual sexual acts (also broadly referred to as "rape"). During CY 2005, there were five guilty findings for nonconsensual sexual acts. Please note that there ;s not necessarily acorrespondence between allegations and findings
because cases may span more than one calendar year.
During CY 2005, there were 40 allegations of inmate-on-inmate abusive sexual contacts (also broadly referred to as
"touching offenses"). During CY 2005, there were 30 guilty findings for abusive sexual contacts. Please note lhatthere is
not necessartly a correspondence between allegations and findings because cases may span more than one Calendar
year.
. '
During CY 2005,. there were 203 allegations of staff sexual misconduct. During CY 2005. 6 allegations were substantiated.
Please note that it is possible for a single case to have multiple SUbjects; and similarly, the same subject could be charged
with multiple allegations in the same case. If a single case involved multiple SUbjects, an allegation is counted for each
subject and for each behavior. Any allegations made durtng previous years which were closed during CY 2005 are not
reflected.

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Allegations of the sexual abuse of inmates by staff are tracked in accordance with the definitions outlined Title 18, United
States Code, Chapter l09A.
Additionally, other behaviors such as indecent exposure, staff voyeurism, and inappropriate comments of a sexual nature
are also tracked and are included with the sexual abuse allegations. All types of allegations are included in the above
figures. These figures are for allegations made against staff working in Bureau of Prisons facilities.
Paragraph 34
Recommendation:
"The State party should ensure that detained children are kept in facilllies separate from those for adults in conformity Wllh
international standards. The State party should address the question of sentences of life imprisonment of children, as
these could constitute cruel, inhuman or degrading treatment or punishment."
Response:
As the Unlled States explained to the Committee,f2Ql juveniles are not regulariy held in federal prison with the adUlt prison
population. Federal law prohiblls juvenile offenders held in the custody of federal authorllies from being housed in
correctional institutions Or detention faciJnies in which they could have regular contact with adults. As a general rule, the
state prison populations do not include "juveniles" as that term is defined by the applicable state law.
The Convention does not prohibit the sentencing of juveniles to life imprisonment without parole. The United States,
moreover, does not believe that the sentencing of juveliiles to life imprisonment constitutes cruel, inhuman or degrading
treatment or punishment as defined in United States obligations under the Convention. In this context, it is significant to
recall the specific freaty Obligations of the United States under Article 16 in light of the formal reservation the United States
took with respect to that provision at the lime it became a State Party to the Convention. Specifically, that reservation
stated "[t]hat the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or
degrading treatment or punishment,' only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means
the cruel, unusual and inhumane treatment or punishment prOhibited by the Fifth, Eighth, andlor Fourteenth Amendments
to the Constitution of the United States." United States courts have considered such sentences on numerous occasions
and rliled that juvenile life imprisonment does not violate the United States Constitution. Accordingly, such sentences do
not violate U.S. obligations under the Convention with respect to cruel, inhuman or degrading treatment or punishment.
A prohibition of juvenile life imprisonment without parole is an Important provision in the later-negotiated Convention on the
RIghts of the Child (CRC). States that wished to assume new treaty obligations with respect to juven~e sentencing were
free to become States Parties to the CRC, and a very large number of countries chose to do So. Accordingly, States
Parties to the CRC have an obligation under Article 37 of that Convention to ensure that "neither capital punishment nor
life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years
of age: However, the United Slates has not become a State Party to the CRC~ and, accordingly, is under no obligation
to prohibit the sentencing of juveniles to life imprisonment without the opportunity for parole.
Paragraph 42
Recommendation #1 :
"The Committee requests the State party to provide detailed statistical data, disaggregated by sex, ethnicity and conduct,
on complaints related to torture and ill-treatment allegedly commitied by law·enforcement offICials, investigations,
prosecutions, penalties and disciplinary aclion relating to such complaints. II requests the State party to provide similar
statistical data and information on the enforcement of the Civil Righls of Institutionalized Persons Act by the Department of
Justice, in partiCUlar in respect to the prevention, investigation and prosecution of acts of torture, or cruel, inhuman or
degrading treatment or puniShment in detention facilities and the measures taken to implement the Poson Rape
Elimination Act and their impacl. The Committee requests the State party to provide information on any compensation and
rehabilitation provided to victims."
Response:
The United States prOVided substantial statistical information to the Commitiee[rn and prOVides the follOWing updated
information.

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In July 2006, the Department of Justice's Bureau of Justice Statistics released a report, Sexual Violence Reported by
Correctional Authorities, 2005. This report is attached as Annex 5 and is also available at:
.
!Jllp:/Iwww.oip.usdoj.qov/bjsloub/pdflsvrca05.pdf.This report has detailed statistical information, including:
According to this report, in 2005, in SUbstantiated incidents of staff sexual misconduct and harassment, staff were
discharged or resigned in approximately 82% of cases, arresled or referred for prosecution In approximately 45% of cases,
and disciplined, transferred, or demoted in approximately 17% of cases (these numbers add to more than 100% because
more than one action against a staff member could be taken conceming the same incident).
This report also states that in 2005, approximately 15% of allegations of staff sexual misconduct in Federal and state
prisons were SUbstantiated, while approximately 6% of allegations of staff sexual harassment in Federal and state prisons
were substantiated. The report states that in local jails, approximately 37% of allegations of staff sexual misconduct were
SUbstantiated, while approximately 10% of allegations of staff sexual misconduct were substantiated.
Finally, the report states that in 2005, in Federal and state prisons approximately 67% of the Victims of staff misconduct
were male, while approximately 62% of the perpetrators were female. In local jails, however, apprOXimately 78% of the
victims of staff misconduct Were female, while apprOXimately 87% of the perpetrators were male. Wrth respect to race,
approximately 69% of the staff members involved in staff sexual misconduct and harassment were White, apprOXimately
24% were Black (non-Hispanic), approximately 4% were Hispanic, and approximately 4% were Other (this category
includes American Indians, Alaska Natives, Asians, Native Hawaiians, and Other Pacilic Islanders).
Recommendatlon #2:
"The Committee encourages the State party to create a federal database to facilitate the collection of such slatistics and
information which assist in the assessment of the implementation of the provisions of the Convention and the practical
enjoyment of the righls il proVides."
Response:
As a result of the decentralized federal structure of the United States, the creation of one unified database would not
materially contribute to better implementation of the Convention. Instead, Federal and state authorities compile relevant
statistics, including those mentioned by the Committee, and use them for a wide variety of purposes, inclUding assessing
the effectiveness of enforcement. Enforcement against torture and cruel, inhuman or degrading treatment or punishment is
managed through the laws and procedures described at length in the United States periodic reportG1ill and its responses to
the questions posed by the Committee.~
Recommendation #3:
"The Committee also requests the State party to provide information on investigations into the alleged ill-treatment
perpetrated by law-enforcement personnel in the aftermath of Hurricane Katrina."
Response:
For the Committee's information, a partial list of the work done by Federal agencies in response to Hurricanes Katrina and
Rita, including enhanced law enforcement operations in the Gulf Coast region, is attached at Annex 6 and is available at
http://www.dhs.govtxprepresp/Programslgc 1157649340100.5h!m.
Since the Committee has not provided the United States with specific information about the allegations of ill-treatment it
mentions, the United States is unable to prOVide a detailed response to any specific allegations the Committee may have
in mind.
That said, U.S. law prohibits brutality and discriminatory actions by law enforcement officers. The Civil Rights Division of
the Department of Justice, with the aid of United States Attorney's Offices and the FBI, actively enlorces those laws. In
addition, states have laws and/or other mechanisms that protect individuals from mistreatment by law enforcement officers.
Following Hurricane Katrina, which devastated the Guif Coast region of tha United States, there have been media reports
of alleged ill-treatment perpetrated by law-enforcement personnel. The Federal government and relevant state entities
have attempted to determine the validity of the allegations. Given the dual-sovereign system of government in the United
States, as well as the manner in which the Federal government keeps statistics of allegations of police misconduct, it is not
possible for the United States to accurately determine how many allegations of law enforcement misconduct were reported

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or investigated in the aftermath of Hurricane Katrina.
The Department of Justice's Civil Rights Divislon has opened files in connection with at least ten complaints of lawenforcement misconduct in the affected areas following the storm. Three of those complaints have been closed Without
prosecution because the allegations did not constitute prosecutable violations of federal criminal civil rights law. The three
closed files included unSUbstantiated allegations of an assauit in a Mississippi jail; a civilian who was struck by a patrol car
during the evacuation; and officers stealing cars from a car dealership tollowing the storm.
Two of the nine matters opened by the Civil Rights Division invoive incidents that have led to criminal charges being flied
by the State of Louisiana. In October 2005, three New Orleans Police Department officers were charged with battery
stemming from the assauit of an individual in the New Orleans French Quarler a few weeks after Hurricane Katrina. In
December 2006, seven New Orleans Police Department officers were indicted for the fatel shooting of two Individuals on
the Danzinger Bridge in the aftermath of the hurricane. Both cases still are pending, and the Department of Justice will
continue to monitor these prosecutions.
The remaining flies that were opened by the Civil Rights Division still are open and the investigations into those allegations
are pending. Applicable federal law and policy requires that information concerning pending investigatlons into those
allegations remain confidential. Nevertheless, the CommiUee can be assured that if an investigation indicates that there
was a violation of a federal criminal civil rights statute, appropriate aelion will be taken.
In addition to the cases reviewed by the Civil Rights DiVision, the Louisiana Attorney General's Office is conducting an
exhauslive inquiry into allegations that New Orleans residents were not permitted by law enforcement officials to cross the
Greater New Orleans Bridge to Gretna, LOUisiana, during the evacuation oflhe city. The Civil Rights Division intends to
review the results of the state's investigation to determine whether the facts implicate a violation of any federal statutes.
The U.S. Department of Homeland Security (DHS) also received complaints alleging ilI-treatment by law enforcement
personnel in the aftermath of Hurricane Katrina. Specifically, DHS's Immigration and Customs Enforcement Office at
Professional Responsibiiity (ICE OPR) received six complaints and its Office of Inspector General (IG) received three
complaints. The allegations raised by these complainants are detailed below:
Complaints received by ICE OPR:
•
•
•
•
•

One complaint regarding an alleged civil rightsllalse arrest violation.
Two complaints regarding alleged lootingltheft of electronics.
One complaint regarding an alleged rape.
One complaint regarding an alleged unauthorized procurement of supplies.
One complaint regarding alleged rude condUct.

Complaints received by the DHS Inspector General:
• One complaint regarding alleged intimidation/mismanagement.
• Two complaints regarding alleged false claims.
These allegations are being or have been investigated pursuant to standard procedures.

Annexes
1. Declaration of Clint Williamson
2. Department of Defense Directive 2310.01 E
3. Army Field Manual 2-22.3, Human Intelligence Collector Operations
4. Military Commissions Act of 2006 (P.L. 109-366)
5. Sexual Violence Reported by Correctional Authorities, 2005 (Department of Justice, Bureau of Justice Statistics)
6. Department of Homeland Security, "Hurricane Katrina: What Government Is Doing"

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l1J See Committee Against Torture, Conclusions and Recommendations of the Committee Against Torture -United States
of America, UNDOC CATIC/USNCOI2 at 1143 (July 25. 2006).

ro

For further information on such records, see List of Issues to Be Examined During the Consideration of the Second
Periodic Report of the United States of America - Response of the United States of America, available at
hltp:J!www.usmission.ch/Press2006/CAT·Mav5.pdfat 13 (May 6, 2006) [hereinafter referred to as "Response to List of
Issues'.

Ql See, e.g., Second Periodic Report of the United Slates of America to the Committee Against Torture, available at
littp:l/wWW.s/a/IMov/qldrl/rls/4S738.htm at 1130 (May 6, 2005) [hereinafter referred to as "Second Periodic Repor\1;
Response to List of Issues at 37-36.

ill See, e.g., Response to List of Issues, supra note 2, at 32·37.
(§1 See ;d. at 49.
I§J See Second Periodic Report, supra note 3, at 1132-38; Response to List of Issues, supra note 2, at 27-30.

ill See, e.g., Second Periodic Report. supra note 3, at 1130; Response to List of Issues, supra note 2, at 45-48.
I§J See, e.g., Response to List of Issues, supra note 2, at 45.

rnI See Second Periodic Report, supra note 3, at 1133 (immigration removal) and 1140 (extradition); Annex I, Part One,
Section II.E (military transfers).

um See Second Periodic Report, supra note 3, at 1133.
I.1fJ See ;d.. Annex I. Tab 1.
U2l See ;d.
[131 See, e.g., Second Periodic Report, supra note 3, at 1130; Response to List of Issues, supra note 2, at 37-38.

lli!l See, e.g., Second Periodic Report, supra note 2. Annex I, Part One, Section I.
Wi! See supra at 2-3..
[1ID See, e.g.. Second Periodic Report, supra note 3, Annex I, Part One, Section I.

l11l See Response to List of Issues, supra note 2, at 87.

rulJ 18 U.S.C. § 2340A.
WlJ Pub.l. No. 109-148, 119 Stat. 2739.
(ZQJ Pub. L. No. 109-366, 120 Stat. 2600.

gn See, e.g., Second Periodic Report, supra note 3. at 1rn87-94, 96-101, 120; Response to List of Issues. supra note 2, at
101-05.

@ See Response to List of Issues, supra note 2, at 100.

g:n See List of Issues to be Taken up in Connection with the Second and Third Periodic Reports of the United States of
America, available at hltp:/lwww.usmission.chIlCCPRAdvilnceQ&A.odf(July 17, 2006).

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12£ See Response to list of Issues, supra note 2. at 102-03.
gJj] See Second Periodic Report, supra note 3, at W114-17; Response to List of Issues, supra note 2, at 97-99.

If!ll The United States is a party to the two Optional Protocols to the Convention on the Rights of the Child.
g:n See, e.g., Response to List of Issues, supra note 2, at 69-76, Annexes 4-8.
{6§j See, e.g., Second Periodic Report, supra note 3, at W8, 11-29,45-55,63-84,87-139.

I2ID See, e.g., Response to List 01 Issues, supra note 2, at 8-12, 44, 50-53,63-69, 85-89.
it·SACK TO TOP

Publlshed by the U.S. Department of State Website at http://www.state.gov maintained by the Bureau of Public Affairs.

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Opening Statement for U.S. Hearing at Committee Against Torture

Page lof2

RELEASED IN FULL

,.

Opening Statement for U.S. Hearing at Committee Against Torture
Barry F. Lowenkron
Assistant Secretary for Bureau 01 Democracy, Human Rights and Labor
Geneva,S~aerland

May 5, 2006

Mr. Chairman, Members of the Committee, ladies and gentlemen: My name is Bany Lowenkron. I am the Assistant
Secretary for Democracy, Human Rights and Labor at the U.S. Department of State. Six years ago, in 2000, my
government appeared before this Committee to present its initial report on U.S. implementation of the Convention Against
Torture. My predecessor emphasized the importance the United States Government attaches to full compliance with all our
international human rights treaty obligations. I am here to continue that tradition, and have the honor of introdUcing the
head of our delegation, John Bellinger, the Legal Adviser of the Department of State.
On the topic of this hearing, my government's posllion is clear: U.S. criminal law and treaty obligations prohibit torture, and
the United States will not engage in or condone it anywhere. As the President said in 2004:
"... Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it
everywhere"
My country is committed to upholding our national and international obligations to eradicate torture and to prevent cruel,
inhuman or degrading treatment or punishment. We also·are committed to transparency about our policies and actions,
and we hope other countries will be equally forthcoming. This is not just a legal obligation - we are fulfilling a higher moral
obligalion, which our nation has embraced since its earliest days. Indeed, the United States is proud that it was among the
leaders in the international community who established the Convention against Torture.
Our nation was founded on the prinCiple of respect for human dignity. Our Constllution's first ten amendments - the Bill of
Rights - are the covenant between our Government and citizens for the protection of their rights. The Bill of Rights spells
out several protections that are reflected in the Convention Against Torture. These safeguards include the Eighth
Amendment, which prohibits cruel and unusual punishments. These protections have endured for over two centuries and
they have continually been strengthened.
.

Firm U.S. Commitment to Investigate and Prosecute Abuses
The United States has a long tradition of international leadership against torture. As the most senior officials of my
government have repeatedly affirmed, and as we will make clear again today, When allegations of torture arise - including
allegations against government officials - they are investigated and, if substantiated, prosecuted. Our commitment to
protecting individuals from abuses does not stop with torture. My government is similarly committed to investigating and
prosecuting credible allegations of other such forms of unla~ul treatment against persons in custody of law enforcementincluding in the War on Terror.
Abuses. such as those that notoriousiy occurred at Abu Ghraib, sickened the American people - just as they appalled
people around the world. They were inexcusable and indefensible. The United States government and people sincerely
regret these incidents and have taken steps to hold people accountable. In fact, my government has carried out more than
600 criminal investigations into allegations of mistreatment, and more than 250 individuals have been held accountable for
detainee abuse. Their punishments have included courts-martial, prison terms for as long as ten years, formal reprimands
and separation from our military seIVices. And as recent headlines show. the investigations and charges continue.
Transparency and Self-Corrective Mechanisms

.. As this [e,eord.refleclsrl when we make mistakes, we take corrective measures. Our system is designed to do just that.
UNITED S'lATJ;;S DEc ARTMENT OF STATE

REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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Page 20f2

Investigations and law enforcement mechanisms operating under law are an jmportan~ but not the only, means to address
allegations of torture or other mistreatment. We are an open society. I am sure you have read about or seen the vigorous
public debate in my country about allegations of abuses and how best to prevent future problems. Our media, our civil
society organizations, and our cijjzens' groups, all have spoken to these issues, and the government has listened and
made changes.
For example, more than 1,000 international journalists have now traveled to Guantanamo to learn about detainee
operations there.. A parliamentary group from the Organization for Security and Cooperation in Europe vis~ed Guantanamo
and one of its members later told journalists it was a "model prison:' Further, the President of the International Committee
of the Red Cross said recenUy that condillons at the facility had "improved considerably" and that the ICRC was satisfied
wilh ijs access to detainees there.
Our system of government provides for other means of improving our policies and practices. Our Constitution's system of
checks and balances relies on the separation and independence of the three branches of government executive,
legislative and judicial. The push and pull betWeen the branches has led to specific reforms. The Courts have rendered
decisions and the Congress has passed legislation such as the Detainee Treatment Act, which John Beilinger Will discuss.
Concrete U.S. Actions to Combat Torture Around the World
A vital part of our efforts to combat torture worldwide entails engagement With other nations on their human rights
situations. In the annual reports on country situations prepared by my bureau at the Slate Department, we devote
substantial attention to the issue of torture. A number of key non-governmental organizations stated that the U.S. "pulled
no punches" in the Human Rights Raports assassments - even of allies and friends. These reports are very useful in our
bilateral efforts to persuade nations to improve their own policies, and they are often used by non-governmental groups or
the citizens olthose countries for the same end.
My government also engages in a multilateral activtties designed to reduce and ultimately eliminate torture globally. At the
UN Commission on Human Rights, for example, the U.S. played a central role in the adoption of country-specific and
thematic resolutions related to torture. We have supported the work of the UN Special Rapporteur on Torture throughout
the world. We did invite him and several of his colleagues to visit our military detention facilities in Guantanamo - an
invitation they regrettably declined. Although the U.S. i~ not seeking a seat in the new UN Human Rights Council this year,
we intend to remain actively engaged with that body, supporting resolutions, contributing 10 its funding, and ensuring that ij
can playa positive role on key matters such as ending torture.
Conclusion
Ladies and gentlemen, in conclusion, the U.S. commitment to end lorture worldwide stems from my country's most
cherished values. All branches of my government have advanced this goalthrough sustained, intensive effort We have
devoted substantial policy atlention and financial resources to it. We also welcome the crucial contributions to this effort of
others throughout the international community - whether they are national or international activists. non-govemmental
organizations or civil society organizations, members of the media, faith-based organizations, or concerned citizens. Even
when their criticisms are directed against our governmen), we understand and appreciate that they do so on behalf of an
objective wa all share: ending torture forever.
In furtherance of this objective, we anticipate a Vigorous and constructive dialogue with this Committee. With that, I am
happy to turn the microphone over to John Bellinger for his opening remarks and overview of how we will be responding to
the questions we received from the Committee. Thank you.

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U.S. Meeting with U.N. Committee Against Torture
Opening Remarks
John B. Bellinger, III
Legal Adviser, U.S. Department of State
Geneva,Swftzerland
.May 5, 2006

Mr. Chairman. Distinguished Members of the Committee,
Members of Civil Society and Other Observers,
My name is John Bellinger. I am the Legal Adviser of Ihe Department of Slate, and I serve as head of Ihe United States
delegation 10 the Committee Againsl Torture.
The United States recognizes the importance of our inlernationallegal obligalions and the key role this Committee plays in
the Ireaty-monitoring process. The United Slates greally appreciates this opportunity 10 meel with the Committee and 10'
explain the measures we have taken to give effect 10 the obligations we have undertaken as a State Party to the
Convention Against Torture and Other Cruel, Inhuman. or Degrading Treatment or Punishment. Secretary of Slale Rice
has emphasized that the Uniled States takes its international obligations seriously. This is renacted in the great lengths to
which we have gone to provide you wlih an extensive report and Ihorough answers to the many questions you have posed.
Our delegation is composed of senior-level officials involved in implementing the Convention. This further demonstrates
our commitment not only to fulfilling our obligations under the Convention, but also to engaging in What we expect will be a
productive dialogue with you.
AI the outsell want to reiterate the United States Government's absolute commliment to upholding our national and
international obligations to eradicate torture and to prevent cruel, inhuman, or degrading treatment or punishment
worldwide. The President of the United States has made clear that 'ltjorture anywhere is an affront 10 human dignity
everywhere" and that "freedom from torture is an inalienable human right." Beyond the protections in our Constitution that
Mr. Lowenkron mentioned, United States criminal laws prohibit torture. There are no exceptions to this prohibition. Within
the United States, our 50 stales and the federal government prohibit conduct thaI would constliute torture under their civil
and criminal laws. Our Congress has also passed laws that provide for severe federal sanctions, both civil and criminal,
against those who engage in torture outside the territory of the United States.

And our laws have gone further. Our focus on eradicating torture and punishing its perpetrators would be incomplete
without a parallel effort to help its victims recover from abuses. The United Slates has comprehensive legislation that
enables citizens and non-citizens of the United States who are victims of torture to bring ciaims for damages against
foreign government officials In U.S. federal courts. Congress has also established and funded programs thaI assist viclims
of torture, domestically and overseas. The United Slates has conlributed far more than any other country in the world to
Ihe United Nalions Voluntary Fund for Victims ,,!Torture. For the years 2000 through 2005, U.S. conlributions 10 Ihe Fund
totaled more than 32 miliion doliars, which is approXimately 70% of the lotal contributions during thaI period.
And late lasl year, our Congress enacted, and the President signed into law, the Detainee Treatment Act of 2005. The Act
included a provision Ihal COdified in iaw our already-existing policy againslthe use of cruel, inhuman or degrading
trealment as thaI term is defined under the obligations lhe Uniled Slates assumed under the Convention. The law provides
that no person "in the cuslody or under the physical control of the United Stales Government, regardless of nationality or
physical location" shali be SUbjected to cruel, unusual, and inhumane treatment or punishment prohibiled by certain
provisions of Ihe U.S. Constitution. The enactment of the Detainee Treatmenl Act highlights our nalion's commilment to
upholding Ihe values o!freedom and humanily on which it was founded.
We know that you will have many questions about actions the U.S. Government has taken in response to Ihe lerrorisl
UN'ilJ'ifbsSlr~'T'i'slj':lt~':Ut'f~l!'~f'{)"F1;;'X"TEwelcome this dialogue and we are committed to addressing your questions

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'as fully as possible. As we attempt to answer your questions, I would like to ask the Committee to bear in mind a few
considerations.
First, some of the matters that are addressed by your questions are the subject of ongoing litigation, and I hope you will
understand that our abiiity to comment in detail on such matters is necessarily constrained.
Second, like other governments, we are not in a position to COmment publicly on alleged intelligence activities.
Third, our Second Periodic report and the written answers to your questions contain extensive infonnation about U.S.
detainee operations in Guantanamo Bay, CUba, and in Afghanistan and Iraq. It is the view of the United Stales that these
detention operations are govemed by the law of anned conflict, Which is tha lex specialis applicable to those operations.
As a general matter, countries negotiating tha Convention were principally focused on dealing with rights to be afforded to
people through the operation of ordinary domestic legal processes and were not attempting to crall rules that would govern
anned conflict.
At the conclusion of the negotiation of the Convention, the United Stales made clear "Ihatthe convention •.. was never
intended to apply to armed conflicts...." The United States emphasized that having the Convention apply to anned
conflicts "would result in an overlap of the dilferenttreaties which would undennine the objective of eradicating torture."W
No country objected to this understanding.
In any case, regardless of the legal analysis, torture is clearly and categorically prohibited under both human rights treaties
and the law Of anned conflict. The obligation to prevent cruel, inhuman, or degrading treatment or punishment is in Article
16 of the Convention and in similarprovisions in the law of armed conflict.
While the United States maintains its view that the' law of armed conflict is the lex speciaUs governing the detainee
operations that we will discuss, we are pleased to provide extensive information about these operations in a sincere spirit
of cooperat!on with the Commillee.
In closing I would like to make two final comments.
First, While I am acutely aware of the innumerable allegations that have appeared in'the press and in other fora about
various U.S. actions, I would ask you not to believe every allegation that you have heard. Allegations about various U.S.
military or intelligence activities have become so hyperbolic as to be absurd. Critics will now accept virtually any
speculallon and rumor and circulate them as fael. The U.S. Government has allempted to address as many of these
allegations as quickly and as fully as possible. And yet, as much as we would like to deny the numerous inaccurate
charges made against our government, beCause many of the accusations relate to alleged intelligence activities, we have
found that we cannot comment upon them except in a general way.
Second, even as we recognize matters of concern to the Committee, we ask that the Committee keep a sense of
proportion and perspective. While it is important to deal With problems in a straightforward manner, it does a disservice to
the quality of our dialogue, to the treaty monitoring process, to the United States, and, ultimately, to the cause of
combating torture around the world to focus exclusively on the allegations and relatively few actuai cases of abuse and
wrongdoing that have occurred in the context of the U.S. armed conflict with al Qaeda. I do not mean to belittle or shill
attention away from these cases in any way. We welcome your questions. But we suggest that this Committee should not
iose sight of the fact that these incidents are not systemic. We also suggest that the Committee devote adequate time in
these discussions to examining the treatment or conditions that apply domestically with respect to a country of more than,
290 miilion people. The United States is committed to rUle of law and has a well-functioning legal system to ensure criminal
and civil accountability.
We will now begin to answer the questions you have posed to us. In light of time constraints on this oral presentation, it wiil
be impossible for us to reply in detail to every aspect of your wide-ranging questions. In many cases, we wiil refer you to
the more detailed responses we have provided in writing.
Thank you very much.

wU.N. Doc_ E/CNA/1984, March 9,1984.

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LAS7
The United States' Response to the Questions Asked by the Committee
Against Torture
Geneva, Switzerland
May 8, 2006
Mr. Chairman. Distinguished Members ofthe Committee. Ladies and Gentlemen. my deiegation is pleased to be here for
another day of dialogue with this Committee. We found our Friday meeting very useful. and hope the Committee did as
well. We appreciated your important questions. and my delegation Worked very hard over the weekend to prepare full
responses for you.
.
On Friday. Chairman Mavrommatis began his questions by noting that more is expected from the United States than from
many other countries. We recognize that much of the rest of the world holds the United States to a strict standard when it
comes to the rule of law and human rights. This Is especially important when it comes to moral imperatives. such as
eliminatingtorlure. The United States acknowledges this challenge. knowing that we must always strive to improve our
own record.
In this context. this Committee asked important questions about U.S. detainee operations in Guantanamo, Afghanistan and
Iraq, and about alleged intelligence activities. The members also asked a number of questions about the scope of U.S.
obligations under the Convention Against Torture and a wide array of other matters. We are pleased to answer those
questions today. We will also highlight the slrong legal protections under U.S. law for those who might be detained.
Let me be very clear about our position: U.S. officials from D1lgovernment agencies are prohibited from engaging in
torture. at all times, and in all places. EVE»! U.S. official, wherever he or she may be, is also prohibited from engaging in
cruel, inhuman or degrading treatment or punishment, as defined by our obligations under the Convention Against Torture.
This is the case even in situations where the law of armed conflict applies.
We note in this context Mr. Wang's question as to whether the United States would agree with the statement that "some
people are simply not entitled to humane treatment." Our answer is a clear arid simple 00. As the President stated on the
UN tnternational Day in Support of Vicitrns ofTorture. on June 26, 2004, "[t]he United States reaffirms its commitment to
the worldwide elimination of torture. The non-negotiable demands of human dignity must be protected without reference to
race. gender, creed. or nationality. Freedom from torture is an inalienable human right and we are committed to building a
world where human rights are respected and protected by the rule of law."
We described on Friday our internal mechanisms for meeting our domestic and international obligations to combat torture.
Our presence here highlights another, vital instrument in this effort: our dialogue with this Committee and with other
interested parties. Mr. Chairman, you asked if my government has an active dialogue with non-governmental organizations
on these issues. We do. Secretary Rice meets regularly with NGO officials. Numerous other senior U.S. officials. inclUding
members of this delegation, meet regulariy with NGOs in Washington and wherever we travel. Indeed, I met with 19 NGO
representatives this weekend to discuss these very proceedings. My govemment takes very seriously concerns expressed
by members of the NGO community and has benefited from this dialogue,
Most of the regrettable incidents or allegalions of mistreatment of detained enemy combatants occurred several years ago.
I say this not to minimize their significance. but to emphasize that, without question, our record has improved. We now
have more rigorous taws. more rigorous procedures, more rigorous training and more rigorous monitoring mechanisms.
We lOOK forward to further dialogue with the Committee today. As many oi the Committee's questions focused on three
main themes, we will address these topics thematically before addressing each member's other questions individually.
These themes are: first, legal issues about U.S. implementation of the Convention; second. treatment of detainees in the
context of our operations overseas - including accountability for abuses; and third, monitoring and oversight of alleged
intelligence activities. We believe that we will address all ofthe Committee's questions. but if we leave something out, we
UNI:m9j}~If~ ~~ ~g again from the Committee after we make our presentation.

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The first theme we wm address deels primarily with questions of treaty law related to the scope of U.S. obligations under
the Convention.
Mr. Camara asked about reservations the United States took to the Convention when we ratified it io1994, and, in
particular, whether the United States considers itself subjeelto the provisions of the Vienna Convention on the law of
Treaties with respaelto making reservations. Although the United States is not a party to the Vienna Convention, the
reservations made by the United States, including its reservations under the Convention Against Torture. conform to the
provisions on reservations of the Vienna Convention.
As Article 19 of the Vienna Convention provides, a State may, when signing. ratifying. accepting, approving or acceding to
a treaty, formulate a reservation unless the reservation is prohibited by the treaty or is incompatible with the objeel and
purpose of the treaty. The Convention Against Torture does not prohibit reservations. In fac\, more than 20 countries have
made reservations to the Convention. Consistent with customary intemationallaw and the Vienna Convention, the United
Slates made two reservations when ratifying the Convention Against Torture.
Mr. Camara also inquired whether the U.S. reservations, particularly our reservation to Article 16 of the Convention, were
intended to negate obligations under customary international law. I want to emphatically assure Mr. Camara and the
members of this Committee that, to the contrary, the U.S. reservallon to Article 16 was intended to state clearly the precise
scope of the obligation that the United States was assuming under the Convention Against Torture given that the term
"cruel. inhuman or degrading treatment or punishment" was not defined in the Convention.
Finally on the topic of general treaty law, Mr. Camara suggested that if there is a difference of opinion between an
interpretation of the Convention advanced by the Committee Against Torture and an interpretation advanced by a State
Party such as the United States, the interpretation of the Committee. as a mailer of law. would prevail. With respect. we
must disagree wfih that view. Although a party to a treaty can agree to establish a third party to render authoritative
interpretations of that treaty, in this case. the United States did not agree to give the Commillee such a role. While the
Commillee's views are entilled to respect. the Convention does not grant the Commillee the authority to issue legally·
binding views on the nature of U.S. obligations thereunder.
I now turn to a question asked by Messrs. Martllo. Camara, and Mavrommatis, regarding why the United States has not
created the crime of "torture" within the United States. The United States has taken very seriously its obligation under
Article 4to ensure that all aels of torture are Offences under its criminal law• Before ratifying the Convention. the United
I';tates undertook an exhaustive review of its existing criminal laws and expressly determined that "existing law is sufficient
to implement Article 4 of the Convention. except to reach torture occurring oUlside the United States."[1J The United States
supported this determination by a long and specific list of criminal statutes that-together - prohibit all conduelthat would
constitute torture. ThUS, aels of torture - as well as other appalling violent or abusive acts - are made criminal in the
United States. As Chairman Mavrommatis observed Friday, several other States Parties have also relied on previouslyexisting criminal laws to satisfy their obligations under Article 4.
Mr. Marino asked why the United States has limited torture to "extremely severe" pain or suffering. We have not done this.
In its criminal statute for the extraterritorial offense of torture, the United States utilized Ihe term "extreme" as a synonym
for the term "severe." It did not use the term "extremely severe."
With respeel to Mr. Marino's question about the U.S. understanding defining the term "severe mental pain or SUffering" in
Article 1, this understanding recited elements implicit in the text to provide the specificity needed to meet the requirements
of a criminal statute. There was, and is, no intent to limit the scope of Article 1.

Mr. Marino also questioned the U.S. understanding of the term "lawful sanctions" in the Convention's first paragraph of
Article 1. The U.S. understanding merely clarified the scope ofthatterm; namely, that it included judicially Imposed actions
as well as other enforcement action authorized by law. The United States considers thetthls understanding is compatible
with the object and purpose of the Convention. We note that no State Party to the Convention has objected to this
understanding.
Several members of the Committee asked questions regarding the application of the law of armed conflict to U.S. actions
in Afghanistan and Iraq.
First, Mr. Marifto asked whether the United States is engaged in an ongoing' armed conflict against terrorism and if that is
so, whether the Convention Against Tarture applies during the course of that armed confliel. These are very important
issues and we are glad to have the opportunity to address them.
The United Slates is engaged in a real, not rhetorical, armed conflict with al Qaeda and its affiliates and supporters, as
refiected by al Qaeda's heinous allack on September 11, 2001, an attack that killed more than 3000 innocent civilians.

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Ii is important to clarify the distinction we draw between the struggle in which all countries are engaged in a "global war on
terrorism" and the legal meaning of our nation's armed conflict with al Oaeda, its affiliates and supporters. On a political
level, the United States believes that all countries must exercise the utmost resolve in defeating the global threat posed by
transnationalteiTOrism. On a legal level, the United States believes that it has been and continues to be engaged in an
armed conflict with al Oaeda, its affiliates and supporters. The United States does not consider ilselfto be in a state of
international armed conflict with every terrorist group around tha world.
Even while we are engaged in an armed conflict, the Convention Against Torture continues to apply, in accordance with its
terms. For example, the Convention obviously applies to fhe treatment of prisoners in domestic U.S. prisons that are not
governed by the law of armed conflict. Our view is simply that U.S. detention operations in Guantanamo, Afghanistan, and
Iraq are part of ongoing armed conflicts and, accordingly, are governed by the law of armed conflict, which is the lex
specialis applicable to those particular operations.
Regardless of the legal analysis, both the law of armed conflict and human rights treaties, such as the Convention Against
Torture, have provisions that prohibit torture and other mistreatment. Let me be perfectly clear. applying the law of armed
conflict does not permit the United States to engage in such acts. Those who are found to have committed such acts are
held accountable.
Mr. Marino also asked about the United States' statement about its understanding that the Convention "was never
intended to apply to armed conflicts:' Which forms part of the travaux preparetolres of the Convention. The'Unlted States.
made this statement over twenly years ago, during the final session 01 the Working Group negotiations on the draft
convention in February 1984[<U and confirmed that statement in its final observations contained in the Secretary-General's
October 1984 report to the General Assembly on the draft convention.pJ
As I explained on Friday, the United States was concerned that application of the Convention to situations governed by the
lawaI armed conflict, which also prohibits tolture, ''would result in having an overlap 01 the dillerent treaties which would
undermine the objective of eradicating torture."f1Ilt is important to note that we were not alone in expressing this concern.
Indeed, the ~ contain similar statements by other countries, including Switzerland,ffil Norway,[§} and Israel.ro We
will provide the Committee with citations to all of these documents in writing.
With these legal principles as a foundation, I want to tum nOW to a second area of concern to the Committee - our laws,
policies, and procedures regarding the treatment of detainees in the context of our armed conflicts with al Oaeda and in
Iraq. For this discussion I would tum to Mr. Cully Stimson from the Department of Oefense.

As we stated on Friday, the Detainee Treatment Act of2005 is a significant development in this area. With regard to
persons under Department of Defense control, the Act statutorily prohibits any treatment or interrogation technique not
authorized by, and listed in, the United States Army Field Manual on Intelligence Interrogation. The techniques contained
in the 1vIT"f Field Manual are the.l!lll)! techniques currently authortzed for use at DoD facilities.
IMth respect to a question from Dr. Sveaass, the Department of Defense has finalized several key policy documents
related to detainees, including the revised Army Field Manual. We are in the midst of final consultations with our Congress
about them at this time. We hope that we will be able to publish these documents soon. We \Viii supply the Committee with
a copy of new detainee policies and the unClassified Army Field Manual when they are published.
Regarding the Committee's questions about waterboarding, I want to make two points. First. waterboarding is not listed in
the current Ivmy Field Manual and therefore is not permitted for detainees under 000 control. Second, waterboarding is
specifically prohibited in the revised Army Field Manual. It would not be appropriate for me to discuss further specifics of
the revised Army Field Manual at this time.

I can also confirm, in response to Mr. Marino's and Chairman Mavrommatis' questions, that the Department of Defense
has conducted investigations of allegations relating to detainee abuse, including those at Abu Ghraib. These investigations
also reviewed the conduct of people in the chain of command. Of the hundreds of thousands of service members who are
or have been deployed in Afghanistan and Iraq, there have been approximately 800 investigations into allegations of
mistreatment, inCluding approximately 600 criminal investigations. After many of these investigations were completed,.no
misconduct was found. In many others, however, the Department of Defense did discover misconduct and took action:
more than' 270 actions against more than 250 service members. In addressing lhese cases, the full range of
administrative, disciplinary, and judicial measures have been available and used as appropriate. Approximalely'170 of
those investigations also remain open.

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Mr. Marino noled an apparent inconsistency between the numberS provided by Human Rights Watch (among others), and
those provided by the Department of Defense. The numbers Human Rights Watch provided to the Committee were: only
54 courts martiai; only 40 service members sentenced to prison; only a small percentage of convicted service members
given long sentences; and only 10 persons sentenced to one year or more. Let me be clear: these numbers are simply
wrong. The fild.l; are these: to date, there have been 103 courts-martial; 89 service members were convicted - an 86%
conviction rate. Moreover, 19 service members received sentences of one year or more. Furthermore, more than 100
service members have received non-jUdicial punishment; more than 60 were reprimanded; and to date, 28 service
members were involuntarily separated .from military service. Accountability is ongoing.
·And finally, in answer to Mr. Marino's question about whether supervisors have been investigated or held accountable, the
answer is emphatically ¥llli.

Mr. Camara requested information regarding Martin Mubanga, a British citizen who sought and received extensive terrorist
training at camps in Afghanistan and eosnia. He used this training to fight in Bosnia and against U.S. forces in Afghanistan
in 2001. In March of 2002, Mr. MUbanga was arrested by Zambian officials after fleeing from Afghanistan. Based upon
those activities, the United States detained Mr. Mubanga as an enemy combatant.
Mr. MUbanga alleged that, while at Guantanamo Bay, he had been subjected to racial insults and was intimidated by a
guard on July 31, 2003. The investigation into these allegations found them to be without merit. Mr. MUbanga had engaged
in aggressive behavior towards the guards - indeed, on June 22, 2003, he grabbed an interrogato(s hand and put it in a
pressure hold. Further, the investigation did nol discover evidence that he had been subjected to radal insutts.

Madame Belmir questioned Whether inadequate training or miSinterpretation of the rules and policies may have led to
abuses. Let me first say that when lhe shocking events of Abu Ghraib were discovered, the Department of Defense se!.out
to investigate all aspects of detainee operations. To this end, the Department conducted major investigations, inspections,
or reviews that examined issues ranging from training, policy and personnel to operations and leadership. The conclusion
of these Investigations, specifically, those that focused on the cause of detainee mistreatment, was that the abuse was the
result of the wholly unauthorized and abhorrent conduct of a relatively small number of servicemembers. We have
acknowledged, however, that the abuses at Abu Ghraib were not merely the failure of indiViduals to follow known
standards but also resulted from leadership failures compounded by poor advice from staff officers responsible for
overseeing detentions operations in Iraq.
The Department conducts comprehensive training programs On treatment and interrogation of detainees - now improved
by the recommendations of the various independent panels. Of course, no training program, however extensive, will be
able to prevent all incidents of abuse.

In response to your question on this topic, Mr. Chairman, the United States is carefully monitoring its detention operations
to prevent any recurrence of the Abu Ghraib abuses. The Department of Defense takes very seriously its obligations to
conduct safe, secure, and humane detention operations. We Were shocked, as you were Mr. Chairman, about the events
at Abu Ghraib. It should not have happened. Any wrongdoers need to be punished, procedures evaluated, and problems
corrected. We feel terrible about what happened to these Iraqi detainees. They were people in U.S. custody and our
country had an obligation to treat them properly. We didn't do that. That was wrong.
One of the great strengths of a nation is its ability to recognize problems, to deal w~h them effectively and transparently,
and to strive to make things better. Indeed, a measure of a strong free society is confronting problems in a transparent
manner. Of course, we wish that all persons in our government and Armed Forces had conducted themselves in
accordance with American values, which refiect the highest standards. But the reality is that some did not, and the
misconduct at Abu Ghraib occurred.
With respect to the Chairman's question suggesting the need for more visible and independent Department of Defense
investigations, let me assure the Committee that the Department's 12 major investigations have been honest and impartial.
These investigations, inspections, and reviews looked exhaustively into all aspects of our detention operations. This
included a Wholly independent review by a panel chaired by former Secretary of Defense James Schlesinger. No
investigators were restricted or influenced by 000 leadership in their inquiries into the facts or in making their findings and
recommendations. They had full access to all materials and individuals.
The United States Congress has also extensively reviewed these issues. It has conducted numerous hearings, and more
than 150 Members of Congress have Visited our detention facilities. The Department has already instituted numerous

reforms and improvements in response to these investigations.

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Should information come to light that an additional investigation is warranted, 000 will, as ~ has before, investig'ate fully,
With respect to Madame Belmir's question about juveniles detained at Guantanamo and the reason for their detention,
there are currently no juvenile detainees at Guantanamo,
At one point we detained three juveniles at Guantanamo. They returned to their home country in January 2004. We
returned them to an environment where they have an opportun~ to reintegrate and we did so ~ the assistance of nongovernmental organizations, We are aware one returned to the fight.
Let me briefly speak about the conditions of detention we provided them while at Guantanamo, Aller medical tests
determined their ages, they were housed in a separate detenlion facility, separated at a significanl dislance from the other
detainees, and the other detainees were not pennitted to have access to them. Indeed, they were housed in a communal
facility, rather than cells. They underwent assessments from medical, behavioral, and educational experts to address their
needs. Furthennore, we taught them mathematiCs, English, and reading, and provided daily physical exercise and sports
programs.
"
It is unfortunate that al Qaeda and'the Taliban use juveniles as combatants, The United States detains enemy combatants
engaged in armed conflict against it and the juveniles were detained to prevent further harm to them and to our forces.

I will now return the floor to Mr. Bellinger.

[l3ELLINGER]

Before turning our attention to each member's individual questions, I wiil now address the third general theme of your
questions, which involve matters related to U.S. intelligence agencies.
Messr:; Marino, Wang, and Mavrommalis each asked related questions regarding inteJligence activities, which we will
answer together, because they overlap 10 some extent. We appreciate the Committee's recognition and forbearance that
we cannot discuss specific alleged intelligence activities, bul we are pleased to provide the follOWing information.
First, it is certainly the view of the United States that every agency of the U.S. Government, including its intelligence
agencies, must comply with U,S. obligations under the Convention Against Torture, as well as with the requirements of the
Detainee Treatment Act. Second, in answer to youf questions regarding whether U.S. intelligence activities are SUbject to
monitoring and oversight, all of the activities of our Central Intelligence Agency are subject to inspection and investigation
by the CIA's independent Inspector General and to oversight by the intelligence committees of the United States
Congress.
The CIA continues to review and, where appropriate, revise its procedures, including training and legal guidance, to ensure
that they comply w~h U.S. Government policies and all applicable legal obligations, including the Convention Against
Torture and the Detainee Treatment Act. To this end, the CIA has put new guidelines and procedures in place during the
last several years.
We will now turn our attention to answering your questions that did not fit within those three broad themes. We will try to
address them in the order we received them.
I first want to address a common question asked by several members of the Committee: whether specific practices might
constitute torture or other cruel, inhuman or degrading treatment or punishment As we have explained before, both
categories are prohibited by Un~ed States law, whether they occur within the United States or outside the country. We
prOVided many examples of crimes that could potentially be charged in our oral responses and written materials.
That said, as the example Mr. Kovalev gave shows, it is difficult to look at broad calegories of practices - totally divorced
from the specificfacts of any given case - and labei them In the abstract as being in all cases e~hertorture or cruel,
inhuman Or degrading treatment or punishment. Moreover, as Mr. Marino noted, eVen when the I~cts are known, draWing
the line can be a difficult exercise.
Mr. Marino raised two hypotheticals -- forced disappearances and incommunicado secret detention - and asked if they
constitute torture. From a legal perspective, it depends on the facts 01 the case and whether the facts meet the reievant
legal standards. We are therefore reluctant to speCUlate about these difficult qu"estions in the abstract.

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The issue of incommunicado detention, however, is one that has been raised frequently and I would just note that the
Fourth Geneva Convention, while not direelly applicable here, specifically recognizes that in certain circumstances,
individuals, such as spies and saboteurs, or other individuals suspected of aelivity hostile to the security of the detaining
power, shalf be regarded as having fOrfeited their rights of communication.

Mr. Marino asked a question about the Detainee Treatment Act, Which, as I have said, is an important development in the
treatment of those in United States Government custody. First, I'd like to address Mr. Marino's question regarding habeas
corpus access to U.S. courts and the judicial remedy provisions in the Delainee Treatment Act of 2005. The Ael provides
unprecedented procedural protecUons - in our nation's domestic courts of law..,. to enemy combatants captured dUring an
ongoing armed conflict and held by the Department of Defense at Guantanamo Bay, Cuba. Historically, captured enemy
combatants have not been able to challenge their detention before domestic courts of the nation holding them, a wortdwide
tradition that had been refleeled in decisions of the United States Supreme Court.
Under the Detainee Treatment Act, a U.S. court of appeals may evaluate whether the already extensive procedures by
which the United Stales determines that a detainee is an enemy combatant are consistent with the Constitution and laws
of the United States. This review also extends to the final decisions of military commissions. In imposing this uniform
review procedure, the Act forecloses whatever limited statutory habeas corpus jurisdiction may have applied because of
the location of their detention at Guantanamo. Instead, the Act provides Guantanamo detainees with a standardized
definite form ofjudicial review in a United States domestic court - a protection that is extraordinary in the history of armed
conflict.
Mr. Marino also asked whether the statement issued bY the PreSident at the time the President signed the Detainee
Treatment Act indicated an intention to take aelions that would violate the Act. The question reflects a common
misunderstanding, both Within the United States and internationally, about the President's signing statement. Mr. Marino, I
can assure you and the Committee that the answer to this question is a clear and emphatic "Jlll". As the President stated
on the day he signed the Detainee Treatment Ael, the policy of the United States has "been not to use cruel, inhuman or
degrading treatment, at home or abroad." That remains our policy and is also now a matter of U.S. statute. Under our'iegal
tradition Presidents regularly issue such signing statements; the President has no intention of taking actions that would
contravene the Detainee Treatment Act.
Mr. Marino additionally asked aboutthe U.S. legal position on the territorial application of Mcle 3 in light Of the
Convention's goal to prevent torture. We agree that Article 3's non-refoulemenl prOVision is an essential safeguard to
prevent torture. However, as a legal matter, we note that the affirmative obligation in Article 2 is limited to "any territory
under [a State Party's] jurisdiction." As we noted previously, Article 30fthe Convention in our view does not apply as a
matter of law to individuals located outside of U.S. terrilory. This view is supported by the text of the Convention, its
negotiating history, and the U.S. record of ratification. Let me be clear: torture is abhorrent and, as the President has
repeatedly said, we are committed to its elimination worldwide. As we have emphasized again betore the Committeenotwithslanding our legal position on the territorial reach of Article 3 - the U,S. worldwide policy is not to transfer persons
to countries where ~ determines that it is "more likely than nor' that they would be tortured. This is the same standard we
apply in implementing our Article 3 obligations under the CAT. This policy applies to all components 01 the U.S.
Govemment and to all individuals in U.S. custody or control, regardless of where they may be detained.
Mr. Marino also inquired, In light of the U.S. le9al interpretation of Article 3's territorial application, how the U.S. ensures
that the non-refoulement protection is afforded to those who need such proteelion. Our legal views on the territorial scope
of Article 3 do not prevent the United States from providing this important protection as a matter of policy. Rather, as just
noted, the U.S. policy to provide this protection applies to all components of the U.S. government and to individuals in U.S.
custody or control regardless of where they may be detained. For example, it is longstanding U.S. policy to afford migrants
interdicted at sea w~h a meaningful opportunity to seek and receive protection against persecution or torture. In addition,
with respect to translers and returns of individuals from Guantanamo Bay, the United States has gone to great lengths to
give effect to its policy not to transfer a person to a country if it determines that it is more likely than not that the person will
be tortured. This policy is described in great detail in declarations Ihat were annexed to the U.S. Second Periodic Report.
U.S. Government departments and agencies have strengthened their internal procedures to ensure compliance With this
policy.

Mr, Marino further inquired about the meaning of the standard "more likely than not", which the United States adopted lor
implementation of Article 3. In applying this standard in the context of implementing Article 3, United States officials
determine Whether it is probable that the foreign national would be tortured if returned or extradited to a particular country.
. It is a standard that is familiar in U.S. law and has long been applied by immigration tribunals in the United States (at least
since the enactment oflhe Refugee Act of 1980). In fact, immigration judges apply the standard in apprOXimately 20,000
adjUdications per year under regulations implementing Article 3.
Regarding Mr. Marino's and Chairman Mavrommatis' question about whelher diplomatic assurances are a substitute for

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case-by-case determinations, the answer, as we have explained before, is "no." Diplomatic assurances are simply a tool
that may be used in appropriate cases and are not a substitute for a case-specific assessment as to whether it is more
likely than not that a person would be tortured if retumed. In such cases, they are one factor in the analysis. That said, if,
laking into account all relevant information including any assurances received, the United States believed that a person
more likely than not would be tortured if returned to a foreign country, the United States would not approve the return of
the person to that country.
•
Mr. Martfto also asked Whether it would be'prudent to rely on "international bodies" to determine whether torture is
systematically pracliced in certain countries, suggesting that the assessment by the intemational bodies would be
dispositive about whether any individuals could properly be transferred to such countries. As we stated in our opening
presentation last Friday, Arlicle 3 requires the United States to make an individualized determination as to whether a
partlcutar individuat would "more likely than not" face torture in a particular country. Although a systematic practice of
torture in a country would be highly relevant, it does not obviate the need to conduct an individual review to determine
whether the standard Is met in a particular case. Moreover, Article 3 does not accord a role to third-party "international
bodies" to make the individual determination on behalf of the State Party. Rather, it is the State Party's obligation to ensure
that the ConvenUon's standard is met.
In response to Mr. Marino's question on who is the decision-maker for the application of Arlicle 3 in extradition cases, he
was correct. It is in fact the Secretary of State, or the Deputy Secretary of State by delegation, who is the decision-maker.
The Slate Department regulations governing the extradition process provide fugitives with the opportunity to submit
whatever documentation they consider relevant for consideration of their claims. The Department will examine materials
submitted by the fugitive, persons acting on his behalf, or other interested parties, and will examine other relevant
materials that may come to its attention. Whenever allegations relating to torture are raised by the fugitive or other
interested parties, appropriate policy and legal offices within the Stale Department with regional or substantive expertise
review and analyze the information. The Department's Bureau of Democracy, Human Rights and Labor, which drafts the
annual human rights reports, is a key parlicipant in this process. All relevant bureaus will then participate in the process to
make a recommendation to the Secretary of State. Mr. Marifto is correct: consistent with U.S. law and practice governing
extraditions, we do not believe that the decision of the Secretary of State regarding claims for protection under regulations
implementing Article 3 of the Convention is subject to judicial review. U.S. courts are currently reviewing the issue in a
number of cases.
.
Mr. Kovalev, in response to your question regarding the International Criminal Court, which I will refer to by its acronym the
"ICC," the United States strongly supports accountability for war crimes and crimes against humanity, and is steadfast in
its promotion of international justice worldwide. The U.S. position on the ICC is well-known, and is not relevant here;
however, the United States does respect the right of other nations to be party to the ICC. The United States played a key
role in drafting the substantive elements of the crimes in the Rome Statute. Furtherinore, the United Slates continues to
lead the way in promoting aceountabflity for these atrocities by being the largest financial contributor to both international
and domestic war crimes tribunals, by finding that genocide has occurred in Darfur, and by supporting countries in their
apprehension of fugitives such as Mladic, Karadic, and Taylor. We do agree that international and domestic mechanisms
for accountability are an imporlant method of eradicating torture, among other crimes, and in promoting accountability and
the rule of law.
At this point, I am pleased to turn the floor over to Mr. Monheim.
lM-QNHEIM]
Thank you. I will first turn to several of Dr. Sveaass's questions related to implementation of the Prison Rape Elimination
Act. As an initial matter, we can all agree that the elimination of prison rape is an important objective for all countries. In
this context, I can reassure you that, there has !!Qj been a delay in the implementation of the Act in the United States. The
Act specifically requires the collection of statistical data, a survey on the prevalence of sexual assault, the formation of a
Commission, and a final report to the United States Attorney General by June 2007. We are making steady progress. and
to date we have:
•
•
•
•

Initiated a massive survey of federal, state and local prisons and other detention centers;
Conducted extensive research on the nature of the problem of prison rape;
Disbursed over 22 million dollars in grant money to the states in an effort to reduce the problem; and
Convened the Prison Rape Commission for hearings on the matter. The first hearings were held in June of 2005
and the next pUbiic hearing is scheduled for this June.

Accordingly, the United Slates Government is working to implement fully the Act's important requirements to better detect,
prevent, and punJsh prison rape.

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As Dr. Sveaass noted, the prevention of sexual violence against individuals in immigration custody is also a serious matter
requiring the attention of all govemments. With respect to individuals in U.S. immigration detention, the Department of
Homeland Security, which I will refer to by "s acronym "DHS," has taken significant steps to prevent sexual violence and
abuse in immigration detention facilities. These steps include a comprehensive classification and screening system used to
segregate nonvioient detainees from those with violent tendencies, and widespread posting of instructions on how to report
sexual misconduel by detention officers and other detainees. All immigration detention facilities, including contrael
facilities, must meet each of DHS's National Detention Standards, including those Standards that specifically serve to
proteelthe health, safety, and well-being of detainees. DHS immigration detention facilities also provide Prison Rape
Elimination Ael training to detention officers.

We would also like to assure the Commmee that the prevention and punishment of sexual abuse against prisoners
remains a high prioTfty for law enforcement at both the federal and state level. The federal Bureau of Prisons has
repeatedly affirmed the agency's zero tolerance policy for sexuat abuse of federal inmales and the federal government
conducts thorough investigations of alleged abuses occurring within state prisons pursuant to the Civil Rights of
InstitutionaliZed Persons Ael. When abuses are found, the federal government has the authority to In"iate legal actions
against a stale institution and then closely mon"ors the jurisdiction (via on-site inspeelions, interviews of inmales and staff,
and review of investigatory documents) to ensure that reforms are thoroughly and systemically implemented.
Regarding Dr. Sveaass' question about prosecutions of law enforcement officers involved in sexual assaults, the
Department of Justice Vigorously investigates and, where appropriate, prosecutes cases involving sexual misconduel by
law enforcement officers. Furthermore, the Department can, and does, prosecute state and federal law enforcement
officers and prison officials for deprivations of constitutional rights. Sexual assaults are among the cases prosecuted under
federal law. Since Oelober 1999, the Criminal Section of the Civil Rights Division, working in conjunction with United Stales
Attorneys Offices around the country, has charged 44 defendants w"h aels of sexual misconduct ranging from
inappropriate sexual contaelto forcible rape. Of these defendants, 16 were prison officials and most of the rest were police
officers.
The Department of Justice has obtained lengthy sentences against law enforcement officers and prison officials convieled
of sexual assault.
• For example, In 2005 a former Jackson, Mississippi police officer was sentenced to 20 years in prison for raping a
.
19-year old woman in his custody.
• In addition, a sheriff in Latimer County, Oklahoma, was sentenced to 25 years in prison for sexually assaulting
several female inmates and employees.

We believe that aggressive prosecution protects all persons, inclUding prisoners, from such egregious and unlawful
behavior by removing the individual offender and sending a strong message of deterrence to other officials.
The United Slates firmly believes that ali detainees should be safe and free from sexual assaults, and it does not tolerate
such behavior by its employees or contractors.

Dr. SVeaass also inquired about the training provided to U.S. law enforcement personnel to emphasize the need to respect
human dignity, especially with regard to gender issues. While any question about law enforcement training in the United
States necessarily involves a wide variety of law enforcement agencies and training regimes, I would highlight some
prominent examples that demonstrate our comm~ment to training and our emphasis on respecting human integrity;
• The federal Bureau of Prisons provides extensive training for staff that is focused on issues specific to the
treatment of female inmates.
• At DHS, detention officers receive extensive training in the proper use of force and best practices in arresting and
searching female subjects. Similarly, DHS immigration inspectors are specifically trained to "treat all minors with
dignity and sensitivlty to their age and vulnerability," and to generally keep males and females, as well as adUlts
and minors, segregated at all times during the immigration inspections process.

More generally, law enforcement personnel are trained to comply with a wide variety of Constitutional provisions, statutes,
regUlations, and policies, inclUding elvil rights protections that safeguard the rights of individuals. Training law enforcement
personnel to comply with this robust set of individual rights effectively promotes respect for human integrity.

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Regarding Dr. Sveaass' question about "especlally vUlnerable individuals in detention," we share her concern about the
need to protect such people. Indeed, in the United States there are numerous safeguards in place for their protection.
While practice varies within the many prtsons in the United States, prisoners are generally classified and housed wllhin a
prison to ensure inmate safety. inclUding consideration of real or perceived vulnerabllilies. Relevant classification factors
may include gender, age, medical condition, affiliations, seriousness and nature ofthe charge, criminal history, and history
of violence. In addition, any prisoner who is subject to threats or acts of violence can be separated from the general
prisoner population and. Wnecessary, transferred to another facility.
As a general rule, the state prison populations do not include "juveniles." However, this issue is complicated by the fact
that slate laws and policies vary regarding the age by which an individual may be charged wllh a crime as an adult, and
thus incarcerated with other aduit offenders. Federal law prohibits juvenile offenders held in Bureau of Prisons custody
from being housed in correctional institutions or detention facilities in which they could have regular contact with adult
offenders. When a juvenile must be temporarily detained in an adult facility, as, for example, immediately following arrest, II
is only for a minimal period of time and the juvenile remains separated from the adult offenders within the instilution.
The Uniled States recognizes that training for staff is essential to protect individuals in custody and to prevent abuse. The
federal Bureau of Prisons has a mm-toleranee pollay for any type of inmate abuse. and these strict standards are also
imposed on the private providers of detention services. Wrth respect to private facilities, the Bureau has taken a very active
role in explaining its expectations to the contractors. The Bureau has, for example, sponsored national training meetings
with private contract providers and has conducted a substantial amount of formal and informal training of contractors.

lis

DHS also underlakes a number of measures to protect potentially vulnerable aliens held under authority. For example,
Management Units are available to allow for the administrative segregation of vulnerable detainees upon request,
such as when the detainee is a victim of assault by another detainee. Importanlly, while in DHS custody, children may be
housed with their adult family members, and unaccompanied juveniles are Kept completely segregated from adults.
S~cial

Dr. Sveaass also asked about measures taken to monitor the treatment and conditions in U.S. prisons, jails. and detention
facilities. For example, the United States continues 10 vigorously enforce the Civil Rights of Institutionalized Persons Act,
which deals with these matters. Since 2001, DOJ has concluded formar;nvestigations of 42 jails, prisons, and juvenile.
facilities. It is currently monitoring agreements involving 97 jails, prisons and juvenile facilities. Furthermore, DHS annually
reviews every immigration detention facility's compliance with the DHS National Detention Standards.

In response to Dr. Sveaass' question regarding redress and compensation measures. prisoners in federal and state
facilities have recourse through private civil actions. Remedies for these actions may involve monetary damages or
equitable or declaratory relief. In addition, any inmate SUbject to any abuse or violence is generally provided an extensive
medical exam and psychological assessment, as well as counseling. Aliens in DHS' custody who are victims of sexual
assaull are referred immediately to an Emergency Department in the community for medical treatment, to include
collection offorensic evidence, and for mental heallh evaluation and crisis intervention, if necessary. Similarly, aliens who
experience Violence while in DHS custody or who are suspected to be victims of abuse receive medical treatment .
inclUding off-site medical cere at DHS expense, if necessary - and are referred to a mental health professional. such as a
psychiatrist. psychologist. or licensed clinical social worker for evaluation and treatment

Regarding Or. Sveaass' question about women giving birth in custOdy, we reiterate thatit is !lQl the genen;1 practice of the
United States Government to shackle female prisoners dUring childbirth. While the use of restraints is not constitutionally
prohibited, the federal Bureau of Prisons does not. as a matter of policy, employ shackles on pregnant women or those In
labor. Depending on the facility, an inmate could be restrained In the unlikely event that she posed a threat to herself. her
baby. or others around her.
Allegations of the misuse of shackles or other restraints in both federal and state prisons are investigated by the
Department of Justice, and may be the subject of civil litigation in U.S. courts. For example, there Is pending private
litigation in Arkansas in the case of Shawanna Nelson. While the ferteral government is not Involved in that case. following
reports of this incident. the Department of Justice conducted an inquiry at the facility and asked the inmates about any
other occurrences, and none were reported. We currently have a private Memorandum of Agreement to monitor the facility
where Ms. Nelson had been held in Arkansas to make certain that no unconstitutional conditions exist for the inmates.

Dr. Sveaass asked whether the United States believes the Commitlee's questions about domestic violence are beyond its
mandate. To clarify our position, the United States does not believe that all acts of domestic violence are necessarily
beyond the scope of the Convention. Nor do we believe that all acts of domestic violence are per se Ytilhin that scope. An
issue may arise, for example, whether the acts at issue would constitute torture and whether there is the requisite
involvement of public officials or persons acting in an official capacity. In order to determine whether a specific act of

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domestic violence might fall within U,S. obligations under the Convention, one would have to look closely at the particular
facts in a given case.
In any event, in our written response to the Committee's Question 59, the United States referred the Committee to the
lengthy discussion on violence against women, including domestic violence, contained In its latest periodic report to the
Human Rights Committee, Additionally, Ihe United States' written response did not purport to address possible application
of Article 3 of the Convention to any particular claim of domestic violence. Whether an individual could establish eligibility
for such proteelion based on a likelihood of severe pain or suffering endured in the context of domestic violence is an
unsettled question In U,S. immigration law, Also, victims of domestic violence may be eligible for asylum under current
U,S. law. As with any applicant for asylum, those individuals must salisfy the full range of requirements established by
Congress before asylum may be granted.
I would also note tha~ under U,S. law perpetrators of aels of domestic violence are subjeel to a wide array of criminal
sanelions and civil remedies.
Moving to addnional questions of Chairman Mavrommatis, the United States appreciates the opportunity to discuss prior
incidents of alleged physical abuse in Chicago, Illinois. II is our under,;tanding that an Illinois slate jUdge has appoinled a
special prosecutor to invesUgate allegalions against Chicago Police Department Lt. Jon Burge. To date, several
convielions based on allegedly coerced confessions have been overturned. This confirms a fundamental tenet Of U.S. law
that nO one is above the law, and while the vast majority of police officer,; display courage in a dlfficutt and often dangerous
job, anyone who violates the rights of a citizen whom they are charged with protecting will be prosecuted to the full extent
of the law. We can assure the Committee, however, that U.S. law enforcement authorities will continue to follow the state
special prosecutor's progress.

We also appreciate the Chairman's question regarding what some refer to as the "death row phenomenon." As the
Chairman recognized, the Convention does not prohibit the imposition of the death penalty. To this effeel, the United
States included an understanding with its instrument of ratification that the Convention does not "restriel or prohibit the
United States from applying the death penalty consistent [with the Con~titutionJ, including any constitutional period of
confinement prior to the imposition ofthe death penalty." The Supreme Court has considered and upheld as constitutional
delays between an initial death sentence and the eventual imposllion of that penalty.
Despite the inapplicability of the Convention to this issue, the United States is aware of the possible psychological toil'
exacted by a period of incarceratlon before the execution of a sentence. There is a balance of interests here, as the delay
is most commonly produced by the very procedural safeguards that ensure that the sentence is justly imposed. We also
recognize that some believe that the segregation of inmates sentenced to death from the rest of the prison population may
exacerbate this effeel. There are interests to be balanced here as well - some correctional facilities regard inmales
senlenced to dealh as more dangerous to fellow prisoners, both because of their violent bac!lgrounds and because of the
inability of the prison to deter misconduct by increasing the sanelion. As you know, the prevention of inmate-on-inmate
violence is a priority for the United States and an issue that is of concern to this Committee.
i nOW return the floor to Mr. Bellinger.
[BELLlNGffil

Mr. Chairman, ladies and gentlemen of the Committee, this conciudes our responses to the questions you posed to us at
our hearing on Friday. We have made every effort to respond to these questions as comprehensively as possible within
the time period allowed. If we misunderstood any of your questions, or if you wish for turther clarifications on any of these
points, we will be happy to receive your follOW-up questions.
In closing, let me reiterate the U.S. Government's absolute commitment to complying with its obligations under the
Convention Against Torture and to the implementation of policies that provide protections that extend beyond those
obligations. I hope that our delegation's appearance before the Committee today and on Friday, together with the
extensive written materials we have provided to the Committee, are a manifestation of that comm~ment and the
importance we place on these issues. We hope the Committee will be able to take this information into account When you
prepare your final conclusions and recommendations.
Thank you.

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...........

ill President's Transmittal oftha CAT at 9; Senate Report on the CAT, Exec. Rep. 101-30 at 19.

o

See Report olthe Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. ElCN.411984172 at para. 5 (Mar. 9,1984).

rn See Report of Ihe Secretary-General, A/391499 at p. 20 (Oct. 2, 1984).
Ml See ElCN.411984172, supra note 1, at para. 5,
[Ql See Summary Prepared by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV),
ElCN.411314 at para. 55 (noting that "human rights regulations and the law of armed conllicts" are "two complementary but
distinct legal systems...the characteristics of which vary according to the specific situation in which they are applied).

I!l1 See A/391499, supra note 2, at p. 15 (referring to Uniled States statement).

mSee J. Herman Burgers and Hans Danelius, The United Nations Convention Against Torture: A Handbook on the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 106 (1988) (noting
statement of the Israeli delegation after adoption of General Assembly resolution 39146).

~ GAOl< TO TOP
Publlshed by the U.S. Department of State WebsIte at http://www.state.govmalntalned by the Bureau of Public Affairs.

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RELEASED IN FULL

LA38
United States' Response to the Questions Asked by the Committee
Against Torture
U. S. DELEGATION ORAL RESPONSES TO CAT COMMiTTeE QUESTIONS
Geneva,SNvitzerland
May 5, 2006
[LEGAL ADVISER BELLINGER]
I will now provide summaries of our answers to the many questions posed by the Committee. In all cases, I would
encourage you to consult those written responses as they provide more detail than I and my colleagues will be able to
provide today.
Questions 1 and 2 concern the memoranda drafted by the Department of Justice's Office of Legal Counsel in August
2002 and December 2004 that prOVided legal advice on the meaning of the term "torture" under the extraterritorial criminal
torture statute that Implements portions ofthe Convention. Nothing in these memos changes the definition of torture
governing U.S. obtigations under the Convention from what the United States accepted upon ratification of the Convention.
The Department of Justice's Office of Legal Counsel, which provides opinions on questions of law to the Executive Branch
olthe United States Government, produced the August 2002 and December 2004 memoranda. The August 2002
memorandum provided legal advice on the meaning of the term "torture" under the extraterritorial criminal torture statute
and addressed Issues concerning the separation of powers under the United States Constitution. That opinion was
requested to prOVide operational gUidance With respect to the implementation of the criminal statute at the level of detait
needed 10 guide U.S. government officials
The Office of Legal Counsel later withdrew that opinion and issued another opinion dated December 30, 2004, which is
confined to an interpretation of the extraterritorial criminal torture statute. The December 2004 opinion supersedes the
August 2002 opinion in its entirety and thus provides the Executive Branch's authoritative Interprefation of the
extraterritorial criminal torture statute.
The August 2002 opinion was withdrawn not because it purported to change the definition of torture but rather because it
addressed questions that were not necessary to address. In this regard, the December 2004 Memorandum clarified that
"[b1eeause the discussion in that [August 20021 memorandum concerning the President's Commander-In-Chief power and
the potential defenses to liability was-and remains-unnecessary, it has been eliminated from the analysis that follows.
Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that
United States personnel not engage in torture."
The purpose of both opinions was to provide legal advice related to a domestic criminal statute. Neither opinion purported
to change the definition of torture set out In Article 1 as understood by the United States. The question that the OlC
addressed waS simply what the terms of that definition, as now reflected In the United States Code. mean.
Question 3 asks whether the references to '10rture" as involving "extreme" acts In the December 2004 memorandum are
compatible with the Convention. The fact that the Convention defines torture in Article 1 and then SUbsequently refers in
Article 16 to "other acts of cruel, inhuman or degrading treatment or puniShment" reflects the recognition of the negotiators
that torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading treatment or
punishment. This basic distinction between the severity of the conduct constituting torture, on the one hand, and cruel,
inhuman and degrading treatment or punishment, on the other, is reflected in the underiying regime set forth in the treaty
text to combat and prevent each form of conducl. Specifically because of the aggravated natuie of torture. States Parties
agreed to comprehensive measures to prohibtt It under their criminal law, to prosecute perpetrators found in territory under
their juriSdiction, and not to return individuals to other States where there are substantial grounds for believing that such
persons would be in danger of being SUbjected to torture. In contrast. the obligations regarding cruel, Inhuman or
UNPPmD<jil'll4.'l'm9"mtt'~T l'rtl lfi\Welimited.

REVIEW AUTHORITY: ARClliE M BOLSTER
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The December 2004 memorandum. recognizing what is clear from the text and structure of the Convention. distinguishes
"torture" from "other acts of cruel. inhuman or degrading treatment or punishment" as expressed in Article 16. by explaining
that torture is a more severe, or extreme. fonn of mistreatment than that described by Article 16. The use of the word
"extreme" in these contexts clarifies the meaning of the word "severe" contained in the definition of torture set forth in
Article 1.
The fact that the term "torture" is reserved for those acts involVing more severe pain and suffering, as distinguished from
cruel. inhuman or degrading treatment or punishment, is also confirmed by the Convention's negotiating history and is
consistent with other international law sources. cited in our written submission.

,
Question 4 suggests that both OLC memoranda on the extraterritorial criminal torture statute are more restrictIVe than
previous U.N. standards. including the 1975 Declaration. We respectfully disagree. The interpretation ollhe tenn "severe"
in the December 2004 memorandum refiects the understanding that torture constllutes a more aggravated form of abuse
than that covered by the "cruel. inhuman or degrading treatment or punishment" described in Article 16. As I have just
explained. this distinction is not only express in the text of the Convention. but also is apparent from the negotiating history.
the U.S. ratification record, and other intemationallaw sources. This distinction is also consistent with. and is not more
restrictive than, the 1975 Declaration, which distinguiShes torture from other lesser forms of abuse in part on the basis of
the severity of the underlying acts.
Regarding Question 5 and how'the United States ensures implementation of its Convention obligations, I would note that.
before ratifying the Convention. the Unlled States carefully reviewed U.S. federal and state laws for compliance With the
treaty·s terms. The United States concluded that, with the sole exception of prohibiting certain acts of torture committed
outside the territory of the United States. U.S. state and federal law covered all of the offenses stated in the Convention.
The United States filled this lone shortcoming by enacting the afore-mentioned extraterritorial criminal torture statute.
In other words, the United States ensures compliance with its Convention obligations through operation and enforcement
01 its existing laws. As a result, there is no specific federal crime styled as ''torture'' for aels occurring Within U.S. territory.

The reason is simply that any act of torture falling within lhe Convention definition. as ratified by the United States. is
already criminalized under U.S. federal and siate'laws. These laws, which meet the requirements Ocfthe Convention. are
binding on govemment officials and are enforced through a variety of administrative procedures. criminal prosecutions.
Additionally, civil suits provide available remedies in many cases. Our written response to this question provides a
comprehensive list of such mechanisms.
There are various mechanisms that allow the United States to ensure its Convention obligations. Of lhese. the Civil Rights
of Institutionalized Persons Act of1980 ("CRIPA'~, is particularly relevant to the Committee's question about monitoring of
prisons as it enables the Department of Justice to eliminate a pattern or practice of abuse in any state prison. jail or
detention facility. It is perhaps the most direct source of the federal government's authority to enforce the federal
constitutional rights of persons in jails and prisons. InclUding juvenite justice facUlties, at the slate and local level. Our
written response provides more detailed information on the activities of the Department of Justice under this slatute.
Question 6 requests extensive information. including statistics relating to detained persons both within and outside United
Stales territory. In the interests of conserving time for our presentation this morning, 1 would direct you to our written
answer, which includes detailed stalistical data.
Question 7 concerns alleged "secret detention facilities" under the "de lacto effective control" of the United States. While it
is the policy of the United States not to comment on allegations of intelligence activities. it is important to underscore that
all components of the United Slates Government are obligated to act in compliance with the law, inclUding all U.S.
constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment.
The U.S. Government does not permit. tolerate. or condone unlawful practices by lis personnel or employees (inclUding
contractors) under any circumslances. The extraterritorial criminallorture statute makes it a crime for a person acting
under the color of law to commit, attempt to commit. or conspire to commit torture outside the United States. In addition,
pursuant to lhe Detainee Treatment Act of 2005, which I mentioned in my opening remarks, the United States voluntarily
has undertaken a prohibition on cruel, inhuman. and degrading treatment or punishment that applies as a malter of statute
to protect any persons "in the custody or under the physical controt of the United Slates Government. regardless of
nationality or physical location."
'

I will now turn to Mr. Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs at the Department of
Defense to address Question 8.
[STIMSON]
Question' 8 concerns the Committee's interest in measures ~o remedy command and operational issues at 000 detention

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facilities in light of what the Commltlee describes as "numerous allegations of torture and ill-treatment of persons in
detention under the jurisdiction of the State party and the case of the Abu Ghraib prison." The United States would like first
of ail to address an undertYing misconception that is the basis for the Commillee's question. While the United States is
aware of allegations of torture and ill-treatment, and takes them very seriously, it disagrees strongly with the assertion that
such are Widespread or systemic. As Mr. Beninger stated in his opening remarks, these allegations must be placed in
context: they relate to a minute percentage of the overall number of persons who have been detained. Moreover, not
everything that is alleged is in fact truth. For example, it is well-known that al Oaida are trained to lie. The "Manchester
Manuar instructs ail al Oaeda members, when captured, to allege torture, even ifthey are not subjected to abuse. The
Department of Defense investigates all allegations of abuse or mailreatment. and if found credible. takes appropriate
actions to hold accountable those who violate the law or our policies. The United States provided numerOus examples of
specific measures taken in response to incidents of maltreatment or misconduct at Department of Defense ("DoD'~
detention facilities at Guantanamo Bay, Cuba and in Afghanistan and Iraq in our writlen response to the Committee's
questions and in the Annex to the Second Periodic Reporl.
With respect to access and information provided to the International Committee of the Red Cross (ICRC), the ICRC has
access to 000 theatre internment detention facilities, including Guantanamo, Iraq, and Afghanistan, and meets privately
with detainees. 000 accounts for detainees under its control fully and provides notice of detention to the ICRC as soon as
possible, normally within 14 days of capture.
The ICRC transmits its confidential communications to senior officials in the U.S. Government, inclUding those in DoD, and
military commanders in Afghanistan, iraq, and Guantanamo. DoD has established procedures to ensure that ICRC
communications are appropriately routed to senior leadership and acted upon in a timely manner. While our dialogue with
the ICRC is confidential, We take seriously the matters the ICRC raises and greatly value the historic and ongoing
relationship between the U.S. Government and the ICRC.
I will now return the floor to Mr. Beninger.

[LEGAL ADVISER BELLINGER]
Thank you, Cully. Question 9 asks about derogations. I would like to state unequivocally that under U.S. law, there is no
derogation from the express prohibition on torture. The legal and administrative measures undertaken by the United States
to implement this prohibition are described in detail in both our Initial Reporl and Second Periodic Report.
·In response to Questions 10 and 11, which ask whether there are exceptions to the prohibition on torture, I would like to
reiterate that the United States stands by its obligations under Article 2, that "(aJn order from a superior officer or a public
authority may not be invoked as a justification of torture" and that "[n]o exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any otner public emergency, may be invoked as a justification
oftorture." These are longstanding commitments of the United States, repeatedly reaffirmed at the highest levels of the
U.S. Government.
With regard to the Committee's Concern about invesligations, the United States described in great detail in the Annex to
the Second Periodic Reporl that the Department of Defense has conducted 12 major investigations into all aspects of its
detention operations following the events of Abu Ghraib.
As these major investigations reflect, the U.S. government is committed to invesligating and holding accountable those
who engage in acts of torture or other unlawful treatment of detainees. If it appears that crlminallaws have been violated,
then those violations are investigated and prosecuted as appropriate by the relevant authorities.
Let me now turn to the Committee's questions about interrogation rules in Question 12. The Detainee Treatment Act of
2005, as I mentioned, prohibits cruel, inhuman, and degrading treatment or punishment, as that term is defined by U.S.
obligations under Article 16, and applies as a matter of statute to protect any persons "in the custody or under the physical
control of the United States Government, regardless of nationality or physical location." The Act also provides for uniform
Interrogation standards that "[nJo person in the custody or under the effective control of the Department of Defense or
under detention in a Department of Defense facility shall be SUbject to any treatment or technique of interrogation not
authorized by and listed in the United States Army Field Manual on Intelligence Interrogation....These standards apply to
military, 000 civilians. and contract interrogators.
The question also asks about any interrogation rules, instructions, and methods that may have been adopted by the CIA.
As already noted, the United States does not comment publicly on alleged intelligence activities. But, like any other U.S.
government agency, any activities of the CIA would be subject to the extraterritorial criminal torture staMe and the
Detainee Treatment Act's prohibition on cruel. inhuman, or degrading treatment or punishment

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The United States provided a detailed answer to the Committee's questions in Question 13 about the process under
which Article 3 is implemented in its written answers to the Committee. Rather than oversimplifying the various intricacies
of procedure that may apply, I refer you to that discussion as well as the relevant discussion conlained in the Second
Periodic Report. To summarize briefly, however, let me make several points. Regulations in Ihe immigration removal and
extradition contexts permit aliens to' assert Article 3 claims as a defense to either removal or extradition. Consistent with its
obligations under Article 3, the Uniled States does not transfer persons to countries where it determines that it is "more
likely than not" that they would be tortured. Additionally, the Unlled States' implementing laws and regulations do not
exclude categories of persons from protection from refoulement under Article 3. The United States may not revoke or
terminate an individual's proteclion under Article 3 from involuntary removal to a particular country so long as it continues
to be shown that the protecled individual would "more likely than not" be tortured in that country.
Our poliCY is clear. The United Slates does nol transfer persons to countries where it believes it is more likely than not that
they will be tortured. This policy applies to all components of the U.S. Government and to individuals in U.S. custody or
control, regardless of where they may be detained. Nevertheless, on this point, I would like to refer you to our detailed
analysis in our written response to this question. It explains that, despite this firm policy, as a legal matter, the view of the
United States is that Article 3 does not impose obligations on the United States with respect to an individual who is outside
the territory of the Unlled States. Neither the text of the Convention, lis negotiating history, nor the U.S. record of
ratification supports a view that Article 3 applies to persons outside of U.S. territory.
In Question 14 the Committee asks whether the Unlled States' understanding to Article 3 interpreting "substantial grounds
for believing" is in fact a reservation that restricts or changes the scope of the provision. At the time the Unlled States
became a State Party to the Convention, it considered that the standard enunciated in its understanding was merely a
clarification of the definitional scope of Article 3, rather than a statement that would exclude or modify the legal effect of
Article 3 as it applied to the Unlled States. This view has not changed. \/Vith respect to the question of who is the
competent authority to make Article 3 determinations, this tums on the context in which the determination is made. For
example, as I mentioned in the previous question, the decisionmaker will differ in immigration removal and extradition
proceedings. To provide a thorough answer to this complex question, I would refer you to our more detailed descriPtion of
the procedures governing these various contexts that is contained in our written submissions.
On Question 15, let me briefly describe the appeal rights of individuals asserting Article 3 claims in the immigration
removal context. Generally speaking, in immigration removal proceedings (with the narrow exception of certain expedited
proceedings described in our written response), an individual seeking protection from removal from the United States
under Article 3 may appeal an adverse decision of the immigration judge to the Board of Immigration Appeals (SIA). If the
SIA dismisses the individual's administrative appeal Or denies his or her motion to reopen, the individual may file a petition
for review of the BIA's decision with the appropriate federal court of appeals. I refer you to OUr written submissions for a
more detailed description of these appeal procedures.
\/Vilh respect to Question 16, as an initiat matter, I would like to reiterate that the United States does not comment on
information or reports relating to alleged intelligence operations. That being said, Secretary Rice recently explained that
the United States and other countries have long used renditions to transport terrorist suspects from the counlry where they
were captured to their home country or to other countries where they can be questioned, held, or brought to justice.
Rendition is a vital tooi in combating international terrorism, which takes terrorists out of action and saves lives. I would like
to emphasize that the United States does not transport, and has not transported, detainees from one country to another for
the purpose of interrogatiory using torture. The United States has not transported anyone, and wifi not transport anyone, to
a country If the United States believes he or she will be tortured. Where appropriate, Ihe United States seeks assurances it
considers to be credible that transferred persons will not be tortured.
Concerning Question 17, U.S. federal and state law prohibils unlawful acts that would constitute an enforced or
involuntary disappearance, for example, by prohibiting assault, abduction, kidnapping, false imprisonment, and by
regulating the release or detention of defendants.
\/Vith respect to transfers Or removals of persons to another country. I would like to reiterate that the United States does not
transfer persons to countries when it determines that it is more likely than not that they would be tortured.
Regarding the Committee's questions about diplomalic assurances in Question 18, I would like to emphasize, as the
United States did in paragraph 33 of the Second Periodic Report, that diplomatic assurances are used sparingly. As an
example, I would refer you to Ihe over 2500 cases where Article 3 protection was granted to individuals in removal
proceedings between 2000 and 2004. Procedures are in place that permil the United Slates, as appropriate, to seek
assurances in order to be satisfied thai it is not "more likely than not" that the individual in question would be tortured upon
return. These procedures are described at length in our written submissions. Diplomatic assurances are not a substitute for
a case-by-case determination of whether that standard is met.
If, taking into account all relevant information, including any assurances received, the United States believes that it is

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"more likely than not" that a person would be tortured if returned to a foreign country. the United States would not approve
the rli'turn of thli' P"ts0n to that country. There have been cases where the United States has considered the use of
diplomatic assurances. but declined to return individuals because the United States was not satisfied such an assurance
would satisfy its obligations under Article 3.
In response to the Committee's question about the "rule of non-inquiry," this is a jUdicial doctrine under which courts of the
United States refrain from examining the penal systems of nations requesting extradition of fugttives when considli'ring
whethli'r to permtt extradition. Instead, such issues are considered by the Secretary of State in making the final extradition
decision. The rule of non-inquiry recognizes that, in the U.S. const~utional system. the Executive branch is best equipped
to evaluate and deal with such issues. The rule of non-inquiry is regularly cited and relied upon in U.S. judicial opinions
involving extradition.
In Question 19, the Committee refers to cases in which the United States has allegedly retumed individuals to countries
that the United States considers "not to respect human rights." In response, I would like to emphasize that Article 3 does
not prohibtt the return or transfer of individuals to countries with a poor human rights record per se. nor does it apply with
respect to returns that might involve "ill treatmenf' that does not amount to torture. Rather, the United States implements
its obligations under Article 3 through making an individualized determination as to whether a particular individual would
"more likely than nof' face torture in a particular country.
To the extent that the Committee's question is directed to returns or transfers of individuals that are effec!ed outside of
U.S. territory, the U.S. reiterates Its view that Article 3, by its terms, does not apply to individuals outside of U.S. territory.
That said, as we have noted previously, the United States does not transfer persons to countries where it believes it is
"more likely than not" that they will be tortured.
Finally, a note on what the Committee and others have called "extraordinary renditions." If that term is meant to refer to
moving persons across borders outside normal extradition procedures, the United States has acknowledged. as I just
stated, that it, like other countries, has long used procedures in addition to extraditions or other judicial mechanisms to .
transport terrorist suspects from the country where they were captured to their home country or to other countries Where
they can be questioned, held, or brought to justice. If, however, the term is meant to refer to a practice of rendering a
person to a place where he or she will be tortured, I cannot be more emphatic: we do not engage in that practice. This
applies to ali components ofthe United States government and with respec! to individuals in U.S. custOdy, regardless of
whether they are inside or outside of U.S. territory.
In Question 20, the Committee asks whether torture constitutes a specific federal offense if it is committed within the.
United States. As I explained previously, while there is no speCific federal crime styled as "torture" for acts occurring within
U.S. territory, any act oftorture.falling within the Convention's definition, as ratified by the United States, is criminally
prosecutable. There is a long list of criminal violations that could be charged depending on the facts of the case: for
example, aggravated assault or battery or mayhem in cases of physical injury; homicide, murder or manslaughter, when a
killing results; kidnapping. false imprisonment or abduction where an unlawful detention is concerned; rape, sodomy, or
molestation if those acts occur; an attempt or a conspiracy to commit any of the above acts; or a criminal vioiation of an
individual's ciVil rights. ThUS, there is no "lacuna" in U.S. law, as ail acts that would constitute torture under the Convention
are crimes in the United States.
Additionally. in our written response to Question 5, we described a range of mechanisms by which U.S. compliance wilh lis
Convention obligations is implemented. The availability of these mechanisms ensure that individuals are protected from
torture and other serious forms of abuse, and that when violations arise, prosecution at the federal and state level, and
appropriate remedies are available.
To give one example that I think highlights just how broad the available tOOls for criminal prosecution under our system
are: many acts which would qualify as "torture" COUld, prOVided the offender was acting under color of law, be prosecuted
under Section 242 of Title 18 of the United States Code as criminal deprivations of Constitutional rights. As the examples
in paragraphs 20 and 21 of the Second Periodic Report make clear. Section 242 also reaches, and the Department of
Justice prosecutes as criminal deprivations of Consmutlonal rights, many violations that would constitute torture but also
many that do not rise to that level.
The same is true of the military justice system, which is the focus of Question 21. As described in the Annex to the
Second Periodic Report, it is a violation of our Unfform Code of Military Justice or "UCMJ," which applies world-wide, to
engage in cruelty and maltreatment. Further, under the UCMJ, acts of assault, maiming, rape and carnal knowledge,
manslaughter, murder, and unlawful detention, among other violations, can be prosecuted.
Under the UCMJ. individuals may also be charged for violations of U.S. federal criminal statutes, including the
extraterritorial criminal torture statute and the other federal crimes I listed in response to Question 20.

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Concerning Question 22, there is no "penal immunity" for any person for the crime oftorture under U.S. law. Addftionally,
although there have been no criminal prosecutions initiated under the extraterritorial criminal torture statute to date, there
have been prosecutions for offenses occurring outside the United Slates under other statutory provisions, including the
Uniform Code of Milftary Justice.
I will now turn to Cully Stimson to respond to Questions 23 through 27 as they concem detention operations by the
Department of Defense, including relating to training of military personnel and applicable interrogation rules.
[STIMSON]
Regarding Questions 23 and 24. which concem education and training of milftary and 000 civilian personnel, including
contractor employees, I would like to reiterate that DoD conducts comprehensive training programs on treatment and
interrogation of detainees. Of course, the United States recognizes that no training program, however extensive, wnl be
able to prevent every case of abuse. Education programs and information for personnel, including contractors, involved in
the custody, interrogation, or treatment of individuals in detention include training on the law of war. Law of War training is
provided at least annually (and more frequently as appropriate) for all DoD personnel involved in conducting or supporting
detention operations, including contractors. This extensive training on the law of war also includes instruction on the
prohibition against acts of torture and the requirement of humane treatment. DoD has provided the Committee a more
comprehensive and detailed answer in Annex 3 to our written response to the Committee's questions. Our written answer
includes information on law of war training in the military academies.
Rules and instructions regarding the custody, interrogation, and treatment of detainees are described in the Annex to the
Second Periodic Report and will also be addressed in response to Question 26. Mechanisms for systematic review of
military, 000 civilians, and contractor employees involved In detention operations include inspector general visits,
command visfts and inspections, Congressional and intelligence oversight committees and visits, as well as reviews
conducted pursuant to unft procedures and by the chain of command. They also include case-specific investigations and
overall reviews. including the 12 major Department of Defense reviews of detainee policy described in detail in the Annex
to the Second Periodic Report.
The U.S. written response to Question 25 concerns the recruitment, use, and training of contractors involved in detention
facilities by the Department of Justice or Department of Homeland Security. Please consult our written response for that
information. Please also refer to our written response for more detailed information on the use of contractors in Department
of Defense detainee operations; however, let me prOVide a brief overview here. The Department of Defense requires all
contractors to comply fully with its rules, regulations, and standards regarding the humane treatment of detainees and has
explicitly required contractors to agree to adhere to these requirements. On April 11. 2005, the Secretary of Defense
established a policy that all federal employees and civilian contractors engaged in the custody or interrogation of
individuals detained by the Department of Defense shall complete annual training on the law of war, including the
obngations of the United States under domestic and international law. In addition, all personnel deploying to the Iraq and
Afghanistan theaters receive Geneva Conventions training before they leave for their deployment. Personnel also receive
periodic training with their units while deployed. This Is applicable to all the military services.
Regarding Question 26, which asks about whether the December 2004 memorandum created unnecessary confusion for
trainers and personnel, the answer is no. As the United States explained in the Annex to the Second Periodic Report. the
main finding of the investigation conducted by General Kern. Lieutenant General Jones, and Major General Fay
(commonly referred to as the Jones-Fay report) was that a small group of individuals, acting in contravention of U.S. law
and DoD policy, were responsible for perpetrating the' acts of abuse at Abu Ghralb. Specifically, in an interview after the
report's release. General Kern told reporters, "We found that the pictures you have seen, as revolting as they are, were not
the result of any doctrine, training or policy failures. but violations of the law and misconduct." This finding has been
supported in 12 other major reviews conducted by the Department of Defense.
The issues arising in Question 27 concern interrogation rules and has largely been addressed by John Bellinger in his
reply to Question 12. As he stated, the Detainee Treatment Act of 2005 prohibits cruel, inhuman, or degrading treatment or
punishment, as that term is defined by U.S. obligations under Article 16 ofthe Convention, and proVides for uniform
Interrogation rules for persons in the custody of DoD or under its effective control or under detention in a DoD tacility. Only
the interrogation techniques listed in the Army Field Manual on Intelligence Interrogation may be used.
Other U.S. government agencies may also heve their own interrogation policies. As already noted, any activities of such
other agencies would be SUbject to the federal anti-torture statute and'the prohibftion on cruel, inhuman, or degrading
treatment or punishment in the Detainee Treatment Act of 2005.
I would now like to return the floor to John Bellinger.

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[LEGAL ADVISER BELLINGER}
Let me now introduce Mr. Tom Monheim, an Associate Deputy Attorney General at the Department of Justice, to respond
to Questions 28 and 29 concerning the programs of the Department of Justice's Civil Rights Division.
[MONHEIM}
In the limlied time we have for oral reply, Ii is difficult to both succinctly describe the functions of the Civil Rights Division
and adequately pay tribute to ils many accomplishments. For that reason, please refer to the more detalled information
contained in our written responses to tha Committee's questions and our Initial and Second Periodic Reports. In the limlied
time available, however, I will briefly explain the Division's role.
The Division was established in 1957 and is responsible for enforcing federal statutes prohibliing'discrimination on the •
basis qf race, sex, handicap, religion, and nalional origin, and numerous other federal civil rights statutes and additional
civil rights provisions contained in other laws and regulations. These laws prohibit discrimination in education, employment,
credit, housing, pubUc accommodations and facilliies, voting, and certain federally funded and conducted programs. The
Division also enforces the Civil Rights of Instliutional Persons Act of 1980, which I will refer to by Its acronym "CRIPA,"
which Mr. Bellinger mentioned previously in response to Question 5 and which is also the subject ofthe next question.
In addition, the Division prosecutes actions under several federal criminal civil righls statutes, mentioned previously,
inclUding those prohibiting conspiracy to interfere with Constitutional rights and deprivation of rights under color of law both of which are key mechanisms to ensure U.S. compliance with lis Convention Obligations.
Finally, the Civil Rights DiVision is responsible for coordinating civil rights enforcement efforts of other federai agencies in
certain areas. Since October 1999, the Division has achieved an impressive record protecting and enforcing the civil rights
of all persons and enforcing U.S. civil rights laws, filing 537 criminal civil rights cases against 971 defendants and obtaining
766 convictions to date. This includes 254 cases filed charging 436 law enforcement officers with official misconduct,
which have resulled in 359 convictions to date. White I should note that nol all of these cases involve matters within the
scope of the Convention, this is a noteworthy record.
Regarding Question 29, the Department of Justice has continued ils vigorous enforcement of CRIPA.
• Since October 1999, the Department of Justice has opened 65 investigations covering 79 facilities.
• The Department of Justice has also entered into 39 settlement agreements, including seven consent decrees.
• Over the past 5 years, the Department of Juslice has initiated 25 percent more new investigalions than in the,
preceding 5-year period.
• In fiscal year 2005 alone, the Department of Justice opened 11 CRIPA investigations; sent 9 findings letters;
obtained 9 agreements involving 12 facilities; entered 4 consent decrees involving 6 facilities; and conducted
approximately 120 investigatory and compliance tours offacilities.
• In addition, the Department of Justice is monitoring compliance with court orders that cover persons who previously
resided in institutions but who currently reside in community-based residantial settings in tne District of Columbia,
Hawaii, Pennsylvania, Indiana, Puerto Rico, Wisconsin, and Tennessee.
• As of April 2006, there are currently 41 active investi9ations covering 44 faCilities.
Question 29 also asks about investigations that ended in prosecution for torture or cruel, inhuman, degrading Ireatment or
punishment. As noted in the Second Periodic Report, complaints about abuse, including physical injury by individual law
enforcement officers, continue to be made and are investigated by the Department of Justice and, if the facts so warrant,
prosecuted. The Department remains committed to investigating ali incidents of willful use of excessive force by law
enforcement officers and to prosecuting federal law violations where aclion by state or local authorities fails to vindicate the
federal Interest. Since October 1, 1999,432 law enforcement officers have been convicted of violating federal civil rights
statutes. Most of these officers were charged with using excessive force.
The Civil Rights DiVision aiso investigates conditions in state prisons and local jail facilities pursuant to CRIPA, and
investigates conditions in state and local juvenile detention facilities pursuant to either CRIPA or the "pattern or practice"
provision of Ihe Violent Crime Control and Law Enforcement Act of 1994. These slalutes allow the Department to bring
legal actions for declaratory or equitable relief for a pattern or practice of unconstitutional conditions of confinement.
The Committee's question also concerned what measures have been taken to improve conditions of detention. In
response. when the investigations of the Civil Rights Division uncover unconstitutional conditions at prisons, jails, or
juvenile detention facilities, it lakes measures - including working wilh local and state authorities -to remedy these
conditions. The remedies, often memoriahzed in negotiated settlement agreements, represent constitutional solutions and

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recognized best national practices, Once ihe reforms are agreed upon with the facility. DOJ will often work cooperatively
with the jUrlsdiction to jointly select a monitor to ensure implementation, The monitor will then work with the jurisdiction to
promptly identify issues of non-compliance and provide status assessments regarding compliance to both the jurisdiction
and DOJ,
In addition, in this regard, I would also like to emphasize the imporlance of the Civil Right's Division's impressive record of
prosecuting officers who engaged in unlawful use of force, Prosecution enhances conditions of confinement by prOViding
general and specific deterrence to law enforcement officers. and ensuring persons in custody that laws prohibiting use of
excessive for,ce or other constitutional violations will be vigorously enforced,
I will now return the floor to Mr. Beillnger.
[LEGAL ADVISER BELLINGER]
Thank you. Tom. Turning to QuestIon 30. which asks for detailed statistical data regarding deaths in custody according to
detention, due to the very large amount of data requested by the Committee and provided by the U,S, in response to this
question, I would like to refer you to our written response to this 'question. Please refer to the annexes to those answers, in
which We provided statistical information, broken down by various categorles as the Committee requested, However. let
me just emphasize that any death of an individual in United States Govemment custody is reported. and if the facts
suggest that there may be criminal implications reSUlting from such deaths. the incident will be investigated. If tha facts so
warrant, the responsible individuals will be held accountable,
Mr. Chairman, until this point our presentation has addressed the Committee's questions in numerical order. For the next
few questions. however. in order to avoid having to pass the floor back and forth among my colleagues excessively. I
would like to group some of the questions together. I will first ask Mr, Stimson to respond to Questions 31 through 34.
Question 36 and Question 39, I will then ask Mr. Monheim to address Questions 35, 37, and 38, I will then resume the
presentation from Question 40.
[STIMSON]
Questions 31 and 32 concern the number of individuals who have died in 000 control and cases involVing assaults on
detainees in Afghanistan, Iraq and Guantanamo Bay.
There have been a total of 120 deaths of detainees In Department of Defense control in Afghanistan and Iraq. There have
been no deaths at Guantanamo. The vast majority of the deaths in Afghanistan and Iraq were caused by factors such as
natural causes, injuries sustained on the battlefield, or detainee-on-detainee violence. In only 29 cases was abuse or other
violations of law or policy suspected. In these cases, these alleged violations were properly investigated, and appropriate
action was taken. Our written answers to the Committee's questions provide extensive information about the investigations
and, where appropriate. prosecutions that have been undertaken to date in specific cases of detainee deaths or alleged
detainee abuse. These investigations have numbered in the hundreds, I would invite the Committee to review that very
detailed information. which includes information about punishment.
'
I should note that the process of holding violators accountable is ongoing. For example, in the time between our submitting
of the anSwers to the Committee's questions last Friday and today, the Nmy has charged a senior officer. the former head
of the interrogation center at Abu Ghraib prison, for his alleged involvement in the abuse of detainees and for allegedly
interfering with the abuse investigation.
Concerning the Committee's question about overall reviews of policy in Question 33, as mentioned before, the
Department of Defense has conducted 12 major reviews of its detention operations, Let me make a few points about the
allegations mentioned by the Committee that these investigations have not been not fully independent. In all 12 of these
reviews, panels were allowed access to all materials and individuals they requested. They were provided any resources for
which they asked. including the assignment of more senior personnel when investigations required it. In no way did DoD
officials direct the conclusions drawn. As the Secretary of Defense, Donald H, Rumsfeld, has said on numerous occasions
and in numerous venues with respect to the investigations, DoD policy was "to let the chips fall Where they may," The
recommendations generated by these investigations have been taken seriously, as described in further detail in the Annex
to the Second Periodic ReP9'f.
As the Department of Defense has conducted an honest, open and impartial set of investigations since the events of Abu
Ghraib into all aspects of detention operations. other investigations are not foreseen at this time. They would not add value
to the 12 investigations already conducted. ShOUld information come to light that would suggest additional investigation is
warranted, the Department of Defense Will, as it has before. investigate such allegations fully.

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The question also asks about access to detention facilities, a topic that I already addressed under Question 8.
Question 34 asks whether the Combatant Status Review Tnbunals and the Administrative Review Boards have any
jurisdiction regarding complaints of torture and cruel, inhuman or degrading treatment or punishment. The Annex to the
Second Periodic Report describes the scope, jurisdiction, and impartiality of these processes. Our answers to the
Committee's questions provide an update on the judicial review applicable to the CSRTs under the Detainee Treatment Act
of 2005. These are processes with specific purposes, namely to review the initial enemy combatant determination in the
case of the CSRTs and to determine on an annual basis whether there is a continued need to detain an enemy combatant
in the ARBs. Of course, if credible allegations of torture or cruel, inhuman, or degrading treatment or punishment were
raised during such proceedings (or in any other context), they would be investigated and acted upon based upon the
information that is uncovered.
Question 36 asks about remedies, including compensation, available to detainees who have alleged abuse while under
U.S. control. The Department of Defense has administrative procedures in place under various domestic statutes that
enable It to pay compensation in SUCh cases. Thirly-1hree (33) detainees, including some detainees from Abu Ghraib have
filed claims for compensation, and the claims process is ongoing. Our written answer provides more detail on these
procedures, as well as a table with a breakdown of the statistical data regarding allegations of torture or ill-treatment
according to gender, age, location of the complaint and result of the investigation.
Question 39 requests an update on habeas corpus litigation in U.S. courts. Currentiy. there are approximately 195 habeas
corpus cases on, behalf of more than 350 detainees presently pending before 15 district court judges. Proceedings in
almost all Of these cases are stayed awaiting either a decision of the U.S. Supreme Court in the case of Hamdan v.
Rumsfeld or a U.S. Circuit Court of Appeals decision on one of the various decisions appealed to the Circuit Court level.
As discussed in our written answer to Question 39, the Detainee Treatment Act of 2005 eliminates district court jurisdiction
in favor of review by the United States Court of Appeals under certain circumstances delineated within the statute.
As Mr. Bellinger requested, I will now pass the floor to Mr. Manheim to answer Questions 35, 37 and 38.
[MONHEIM]
Question 35 asks for further information on the Justice for All Act This Act provides for a range of rights of victims of
federal crimes described in greater detail in our written response. The protections contained in the Act improve the ability of
victims of abuse to monitor and assist in efforts to prosecute the perpetrators of such abuse. The Act includes rights to
protection from the accused, notice of public court proceedings involving the crime or of any release or escape of the
accused, full and timely restitution as provided in law, as well as the rights to appear and be heard at public proceedings,
confer with the govemment in the case, and to be treated with fairness and with respect for dignity and privacy owed to
victims of abuse.
If a victim believes that he has been denied these rights by an employee of the Department, he may file a complaint with
DOJ's Victims' Rights Ombudsman. As far as the DOJ is aware, no alleged victims oftorture by U.S. government
personnel have asserted any of these rights, filed for writs of mandamus, or filed complaints with the Ombudsman.
Regarding Question 37. while the Prison Litigation Reform Act of 1995 contains several provisions designed to curtail
frivolous lawsuits by prison inmates, it does so in a manner consistent With Article 13 of the Convention. By no means does
n "increase the possibility of impunity for perpetrators:' as the Committee's question suggests. Those who violate the rights
of prisoners are subject to both civil and criminal liability for their actions,
The Act does not limit a prisoners ability to "complain to and to have his case promptly and impartially examined by
competent authorities regarding allegations oftorture," which is the language used in Article 13 of the Convention. The Act
does not prevent a prisoner from bringin9 a lederal civil action to redress allegations of torture. A prisoner alleging actual
physical injury may seek compensatory, nominal, and punitive damages, and injunctive and declaratory renel. In addition,
courts of appeals have held that this provision permits prisoners alleging a non-physical constitutional injury to seek
nominal and punitive damages, and injunctive and declaratory relief.
Moreover, nothing in the Act prevents access to the wide range of other administrative and other avenues by which
prisoners may present complaints and grievances, including administrative remedies at the federal and state level as well
as judicial remedies before state courts.
Regarding Question 38, the United States is not aware of any allegations of torture by U,S. government personnel that
have been brought to the attention of the Center for Victims of Torture.

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I now return the tioor to Mr. Beilinger.
[LEGAL ADVISER BELLINGER]

Question 40 seeks an explanation of the exaellegal status of "enemy combatants' and asks whether the United States is
considering reviewing its decision not to apply the Geneva ConventillOS to them. As an initial matter, I note that the
applicability of and complianee with the Geneva Conventions is a matter unrelated to the scope of U.S. obligations under
the Convention.
While the question seems to contiate the discussion relating to persons detained in Iraq, in Afghanistan, and at
Guantanamo, it is important to be precise and recognize the different legal status of each of these categories of detainees.
The United States has not made any "decision not to apply" the Geneva Convention where it WOUld, by its terms, apply.
For example, the Unned States recognized that the Geneva Conventions apply to the war in Iraq and m;;tde it clear that our
armed forces would treat captured Iraqi armed forces in accordance with the Geneva Conventions.
The United States is aware that questions are often raised about the concept of "unlawful combatants,' which certain
academics and others have asserted is not a concept found in the Geneva Conventions. The United States strongty
disagrees: the concept of "unlawful combatants" is well-recognized In intemationallaw by courts, in military manuals, and
by intemationallegal scholars, some of whom are cited in our'wrilten response.
With regard to Tabben detainees, the President determined that the Third Geneva Convention does apply to the Taliban
detainees, but that the Taliban fail to meet the requirements of Article 4 of that Convention and so are not entilled to the
status of prisoners of war. Wilh regard 10 the a~Qaeda delainees, the Presidenl delermined that the Geneva Convention
did nol apply because al-Oaeda is nol a party 10 the Convention. Article 2 of the Convention makes n clear thai Ihe
Convenlion only applies as between High Contracting Parties. Because these decisions are grounded in the Geneva
Conventions themselves, the United States does not consider il necessary to review them.
At the same time, I should note that in making Ihese determinations, Presidenl Bush ordered that "the United States
Armed Forces shall conlinue to Ireat detainees humanely•.• in a manner consistent with the principles of Geneva."
Moreover, let me renerate that the United Stales Govemment complies with its Constilution, its laws, and ils treaty
obligations with respect 10 all delainees.
Question 41 requests examples of cases where statements have been found inadmissible in court on the grounds that
Iheywere obtained coercively. As the United Slates explained In ils Initial Report, and in its Second Periodic Report, U.S.
law provides striel rules regarding the inadmissibility of coerced statements. U.S. courts lake these rules seriously, as
evideneed by the numerous cases clted in our written response and prior reports. We direc! the Committee to lhose
reports for further delails.
Question 42 asks how Article 15 of the Convention is implemented In the Combalant Status Review Tribunal and
Administrative Review Boards proceedings. Article 15 ofthe Convention is a treaty obligation ofthe United Stales, and the
United States is obligated to abide by that obligation in Combatant Status Review Tribunals and Administrative Review
Boards.
On Article 15,the United States would like 10 draw the Committee's attention to an importanl recent development With
regard to the implementation of that article in military commission proceedings. On March 24, 2006, an inslruction was
adopled that provides Ihat '1he commission shall not admit statements established to have been made as a result of
torture as evidence against an accused, except as evidence against a person accused of torture as evidence the
statement was made."
Regarding the Committee's quesllon about the U.S. reservation 10 Article 16 in Question 43, let me begin first by
explaining why the Unned Slates felt it necessary 10 take this reservation. Pursuant to the \J.S. reservalion, the United
States agreed under Article 1610 "undertake to prevent in any territory under its jurisdiction other aels of cruel, inhuman or
degrading treatment or punishment which do not amount to torture," "insofar as the term 'cruel, inhuman or degrading
trealment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibned by the Filth, Eighth,
and/or Fourteenlh Amendments to Ihe Constitution." As we have explained, this reservation was adopted because of
concern over the uncertain meaning of the phrase "cruel, inhuman or degrading treatment or punishment" and was
intended to ensure that exisllng U.S. constitutional standards wouid satisfy U.S. obligations under Article 16. Moreover, I
would like to emphasize that while the United States recognizes that other courts in other countries, often dealing With
different instruments than the Convention, have held that certain types of conduct satisfy standards similar to Ihat in Article
16, the relevant test for the United States is the obligation it assumed as set forth in the U.S, reservation,

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Because the meaning of Article 16's "cruel, inhuman or degrading treatment or punishmenr standard is uncertain, it is
difficult to state with certainty and precision what treatment or punishment (if any) would be prohibited by Article 16 with no
reservation, but permitted under Article 16 as reserved by the United States. it is this very uncertainty that prompted the
reservation in the first place.
In response to Question 44, and the Committee's question about the geographic scope of Article 16, as ratified by the
United States, I would like to emphasize that by its terms, Article 16 of the Convention obHges states Parties "0 prevent In
any territory under its jUrisdletionother acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture...." (emphasis added). Clearly this legal obligation does not apply to activities undertaken outside of the
"erritory under {theJ jurisdiction" of the United States. The United States does not accept the concept that "de facto control"
equates to territory under its jurisdiction. There is nothing in the text or the travaux of the Convention Indicating that the two
are equivalent.
Notwithstanding debates over the territorial scope of Article 16, it is important to bear in mind that. as a matter of U.S. law,
the Detainee Treatment Act of 2005 now provides that "[nJo individual in the custody or under the physical control of the
U.S. government, regardless of nationality or physical location, shall be SUbject to cruel, inhuman, or degrading treatment
or punishment," as that term is defined by U.S. obligations under Arlicle 16. Cruel, inhuman and degrading treatment or
punishment is also prohibited under the Uniform Code of Military Justice, which governs U.S. military personnel wherever
.
they may be located and prohibits abusive conduct.
Regarding the special maritime and territorial jurisdiction of the United States,l would direct you to our more detailed
explanation contained in our written response to this question.
However,let me briefly make a few points. The territorial restriction in Article 16 of the Convention, which also appears in
other provisions of the Convention, uses different terms to describe its coverage and serves a purpose entirely different
from the technical term "special maritime and territorial jurisdiction," which Congress used to define the jUrisdiction of
cerlain U.S. criminal statutes. Article 16 is limited, by its own terms, to "territory under [the State Parly'sJ jurisdiction."
Moreover, "special maritime and territorial jurisdiction" includes concepts obviously inapposite to Article 16's reach, such
as offenses committed on certain spacecraft and in "places outside the jurisdiction of any nation."
I now turn to Mr. Manheim to address Questions 45 through 50.

{MONHEIM]
Question 45 asks for information about the Department of Homeland Security's National Detention Standards, which
serve as a framework for selection of contract detention facilities. The American Bar Association has applauded the
standards as a "significant achievement" and "good first step towards prOViding uniform treatment and access to counsel
for immigrants and asylum seekers."
One practical example of these standards at work can be seen in the recently opened South Texas Detention Complex, a
facility comprised of several secure "pods" that allow for separation of detainees based on gender and degree of risk
posed. Other examples are discussed in our written responses, which also address under Question 49 measures to
prevent sexual violence.
.
Question 46 concerns the use of Tasers. The U.S. government and others are conducting extensive research into the
safety and effectiveness of electro-muscular disruption devices, inCluding Tasers. In addition, the Department of Justice
works With local police agencies to assist them in their development of policies regarding the use of these devices. This
policy guidance includes consideration of community acceptance, use-of-force protocols, continuous monitoring of all uses
of these devices, medical response, and training.
The use ofTasers to control arrestees and inmates is consistent with the law. Courts have reviewed the application of
such devices for consistency with the Eighth Amendment's "prohibition of cruel and unusual punishment." and have upheld
their legality.
Furthermore, use ofTasers often obviates the need to use other forms of more severe, or even deadly, force.
Nevertheless, the Department of Justice remains committed to investigating and, where appropriate, prosecuting use of
Tasers where the circumstances indicate a willful use of excessive force in violation of Constitutional standards. In
addition, the Departments of Justice and Defense continue to develop less-lethal options. inclUding novel electro-muscular
devices that may provide improved safety and effectiveness to law enforcement and military personnel.
Question 47 concerns the detention of juveniles with adults. As an initial matter, it should be noted that that the detention

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" of juveniles with adu"s would not per se constitute cruel, inhuman or degrading treatment or punishment
That being said, Federal law prohibits juvenile offenders held in custody of federal authorities from being housed in
correctional insUlotions or detention facilnies in which they could have regular contact with adult offenders. 'MIen a juvenile
must be temporarily detained in an adUlt facility, as, for example, immediately following arrest, it is for a minimal period of
time and "sight and sound" separation from the adult offenders is ensured within the institution. Similarly, under the
Juvenile Justice and Delinquency Act, accused juvenile delinquents In custody of stale authorities may be detained
In adult Jails for only 6 hours after arrest and only for the purposes of Identification, processing, and awaiting
pickUp by a parent or guardian. Juvenile delinquents also may be detained in adult jails 6 hours before and 6
hours after a court appearance. In both instances, juveniles must be "sight and sound" separated from adult
inmates.
Regarding the Committee's request for statistics, please see our written response to this question.
Additionally, with respect to juveniles in Department of Homeland security custody, as discussed in greater detail in our
written response, generally speaking, juveniles are not detained with adu"s in DHS adult or juvenile detention facilities.
One limited exception allows for the detention of a juvenile with an unrelated adult for a temporary period of time (not to
exceed 24 hours) only to the extent necessary for processing or for transport from a remote area.
Question 48 concerns a range of restraints used on detainees, and also concerns supermaximum prisons. First, let me
emphasize that it is not the general policy or practice Of the United States government to shacl<le female prisoners during
childbirlh, Although the use of restraints is not prohibited, the Bureau of Prisons does not generally restrain inmates in any
manner dUring labor and delivery because they are not considered a flight risk. An inmate would be restrained only in the
unlikely case that she posed a threat to herseii, her baby, or others around her.
Allegations of the misuse of shacl<les or other restraints in both federal and state prisons are investigated by the
Department of Justice, However, it should be noted that the use of shacl<les on prisoners is not per se unconstitutional,
and there are circumstances in which the use of shackles is permissible.
The Department of Justice has been Vigilant in its monitoring of unconstitutional practices by prisons, including use of
chain gangs and the hitching post 'MIile the use of chain gangs is not per se unconstitutional, the Department's
investigations examine whether the practice is conducted in conformity with the Constitution (such as, providing inmates
on chain gangs with adequate water, access to toilets, medical care, etc.). If the practice were conducted in violation of
constitutional principles, the Department would seek immediate prohibition of such practices.
Regarding the Committee's question about supenmaximum prisons, the Department of Justice has reviewed allegations
involVing several supenmaximum facilities in the last several years, applying the same constitutional standards as in other
penal facility investigations. For example, the Department investigated a supermaximum facility in Baltimore, Maryland,
and worked with the State of Maryland to address the identified deficiencies. The Department intends to continue to fully
investigate all credible allegations pertaining to super maximum facilities.
Question 49 concerns measures to prevent sexual violence against detainees. First, I should note that the Prison Rape
Elimination Act of 2000 mandates that all correctional facilities have standards that identify and report sexual assau"s and
rapes. Our written materials provide detailed information regarding Department of Justice and Department of Homeland
Security policies and practices design to prevent sexual violence, inclUding information on allegations of sexual abuse and
misconduct by staff and on inmate-an-inmate s:exual abuse, as well as the availability of compensation for victims.
'MIile the Department of Justice and Department of Homeland Security have their own policies, in general terms, I can say
that staff and inmates alike are encouraged to report incidents of misconduct or otherwise inappropriate behavior. 'MIen
aliegations of serious abuse are accompanied by credibie evidence, appropriate administrative measures are taken. For
example, in the Bureau of Prisons, the staff member is removed from contact with inmates or placed on administrative
leave, Cases are also referred for criminal prosecution when warranted. Finally, staff working with female inmates receive
appropriate training, Including training on policies prohibiting sexual abuse, assault, and intimidation.
Question 50 concerns the use of solitary confinement and monitoring of the menial health of detainees. The Bureau of
Prisons does not use solitary confinement in its facililies. Procedures and safeguards applicable in the limited cases where
it is necessary to separate inmates temporarily from the general population, including mental health monitoring, are
described in our written answer.
Regarding the question relating to "prolonged isolation and indefinite detention,"the United States takes exception to the
assumption contained therein that prolonged isolation and indefinite detention per sa constitutes cruel, inhuman, and

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degrading treatment or punishment. Under U.S. criminal law, the UnRed States does not detain individuals convicted of
criminal charges indefinRely. Rather, their sentences are imposed for a term of years, or for life, as the case may be, by
judges, and if elected by the defendant, by juries of his or her peers.
Finally, inasmuch as this question is meant to relate to the detention of enemy combatants, there is no question that a
State is authorized under the law of war to detain combatants - whether lawful or unlawful combatants - for the duration of
the armed conflict without charges.
Question 51 concerns executions by lethal injection. The United States included an understanding in its instrument of
ratification of the Convention that the treaty does not "restrict or prohibit the United States from applying the death penalty
consistent With the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United Slates." The Supreme
Court of the United States has found lethal injection to be consistent with the U.S. Constitution.
I now return the floor to Mr. Bellinger.
[LEGAL ADVISER BELLINGER)
Question 52 deals with alleged interrogation techniques. Allhough we have submitted a lengthy written response, for
purposes of our meeting today, our answer t~ Question 27 provides our views on the topic.
Question 53 concems implementation of the Convention in light of the federal struelure of the United States. Under the
U.S. Constitution, the federal government is a government of IimRed authority and responsibility. The resulting division of
authority means that state and local governments retain significant responsibility in many areas, including in areas relevant
to certain aspects of the implementation of the Convention. Nonetheless, as a practical matler, this has not detracted from
or limited our substantive obligations under the treaty because the U.S. Constitution prohibits such conduct by state andi
local government officials.
Question 54 concerns the individual complaints procedure under Article 22 of the Convention. The UnRed States is not
considering making a declaration under Article 22.
.
On Question 55, while the United States has considered its existing reservations, understandings and declarations in light
of the Committee's recommendation to withdraw them, there have been no developments in the interim that have caused
the UnRed States to revise Rs view.
Question 56 concerns the Optional Protocol to the Convention Against Torture. The United States is not considering
ratification of this instrument Question 57 concerns restrictions on equipment specifically designed to inflieltorture. The
United States recogniZes that trade and export of certain items should be controlled to prevent their misuse. Under the
Export Administration Regulations, the export of such items requires a special license. Human rights Veiling is a
prerequisite for the issuance of such licenses. Items specifically designed for the use of torture would never receive such a
license.

Question 58 concerns measures to respond to terrorism and Question 59 asks for information on measures to prevent
domestic violence. Both questions are extremely broad, raising many issues outside the scope of the Convention. In the
interest of time. I would refer you to our written answers, our Second Periodic Report, as well as the latest U.S. Periodic
Report to the Human Rights Committee.
Mr. Chairman. that concludes our orai responses to the Committee's extensive list of questions. As I mentioned before, our
written submissions as well as the information submitted in the Initial Report and the Second Periodic Report are much
more detailed, and I would once again refer the Committee to those materials.
Thank you very much. My delegation looks forward to your questions.

~8ACK

TOTQP

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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF THE UNITED
STATES
5 May 2006
The Committee against Torture this morning began its consideration of the second periodic report of
the United States on the efforts of that country to give effect to the provisions of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Barry Lowenkron, Assistant Secretary for Democracy, Human Rights and Labour of the Department
of State of the United States, introducing the report, reiterated the Government's absolute
commitment to upholding Its national and international obligations to eradicate torture and to
prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the
United States had made it clear that torture anywhere was an affront to human dignity everywhere,
and that freedom from torture was an inalienable right. Beyond the protections in ,the Constitution,
United States criminal law prohibited torture. There were no exceptions to that prohibition,
John Bellinger, Head of the Delegation and Legal Adviser of tihe Department of State, said that it
was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in
Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex spec/ails
appllcable to ,those operations. At the conclusion of the negotiation of the Convention, the United
States had made it clear that the Convention was never intended to apply to armed conflicts and
had emphasized that that would result in an overlap of different treaties which would undermine the
objective of eradicating torture.
Serving as Rapporteur for the report of the United States was Committee Expert Fernando Marino
Menendez, who said that he was concerned that the United States had not incorporated the full
provisions of Article 1 In its laws. He understood the debate that had taken place With regard to
"extreme" or IIsevere" suffering or pain induced by a certain act. He understood that extremely
severe was not appropriate, because in his view the Convention did not refer to extremely severe,
but just severe. It just needed to be severe. The expression mental suffering was also in the
definition and this was the subject of a reservation or a qualification by the United States when it
deposited its instrument of ratiflcation, and it was limited to four particular modalities. Article 1,
however, did not establish modalities for mental suffering. He wished to know what the delegation
tihought about that.
Guibrll Camara, the Committee Expert serving as Co-Rapporteur for the report of the United States,
said that the role of the Committee, while it was not a Court, was to interpret the Convention. In
that respect It was the Interpretation of the Committee that would hold, and not that of the
delegation, in terms of determining whether the United States was or was not acting in conformity
With the Convention.
Also representing the delegation of the United States was Barry F. Lowenkron, Assistant Secretary,
for Democraty, Human Rights and Labour of the Department of State, Cully Stimson, Deputy
Assistant Secretary of Defence for Detainee Affairs at the Department of Defense, and Tom
Monheim, Associate Deputy Attorney General at tihe Department of Justice, along With more than 20
advisers.
The delegation will return to the Committee at 3 p.m. on Monday, 8 May, to provide its response to
the questions raised this morning.
The United States is among the 141 States parties to the Convention and as such it must present
periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m., it will hear the answers or'Guatemala to the questions
posed by the Experts on Thursday, 4 May.

Report of the United States
The second periodic report of the United States (CAT/C/48/Add.3) says that with the attacks against
the United States of 11 Sep,tember 2001, global terrorism has fundamentally altered the world. In
fighting terrorism, the United States remains committed to respecting the rule of law, Including the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE!D: 30 JUL 2009 200706444

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United States Constitution, federal statutes, and international treaty obligations, inclUding the
Torture Convention. Under the law of armed confilct the United States has the authority to detain
persons Who have engaged in unlawful belligerence until the cessation of the hostilities. The
detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board
and each enemy combatant is provided with an unclassified written summary. As of 26 September
2005, the United States has transferred 246 persons from Guantanamo: 178 for release and 6B
transferred to the custody of other governments for further detention. All detainees receive three
meals per day; adequate shelter; adequate clothing; opportunity to worship; the means to send and
receive mall; reading materials; and excellent medical care.
Allegations of detainee abuse at the Abu Ghraib prison in Iraq became known with incidents
documented in photographs and reported in the media throughout the world. These photographs,
which depict acts of abuse and mistreatment of detainees by certain members of the United States
Armed Forces in Iraq, Involved blatant violations of the Uniform Code of Military Justice and the law
of war. The Government of the United States has acted SWiftly and is investigating allegations of
abuse thoroughly and making structural, personnel, and policy changes necessary to reduce the risk
of further such incidents.
The definition of torture accepted by the United States upon ratification of the Convention remains
unchanged. The definition of torture is codified In United States law in several contexts. On 30
December 2004 the Department of Justice's Office of Legal Counsel published a memorandum that
addresses the legal standards applicable under the extraterritorial criminal torture statute,
separately considering the meaning of "severe"; "severe physical pain or suffering"; toe meaning of
'severe mental pain or suffering"; and the meaning of "specifically intended". Torture is also defined
in the immigrations and extradition regulations as well as in the Torture Victim Protection Act, which
permits victims of torture and extrajudicial killings to claim damages for such abuses. The core legal
framework through which the United States gives effect to its Convention undertakings to prevent
acts of torture has not changed fundamentally since the Initial report.
Presentation of Report

BARRY F. LOWENKRON, Assistant Secretarv for Democracy, Human Rights and Labour of the
Department of State of the United States, at the outset, reiterated the United States Government's
absolute commitment to upholding Its national and international obligations to eradicate torture and
to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the
United States had made it clear that torture anywhere was an affront to human dignity everywhere,
and that freedom from torture was an inalienable right. Beyond the protections in the Constitution,
United States criminal law prohibited torture. There were no exceptions to that prohibition.
The United States was also committed to transparency in its actions. It was fulfilling higher moral
obligations that it had embraced since its earliest days, Mr. Lowenkron said. Indeed the United
States was among the original signatories to the Convention against Torture and had helped to draft
It. The Bill of Rights spelled out several rights that were reflected in the Convention, inclUding the
Eighth Amendment, which prohibited cruel or unusual punishment.
Mr. Lowenkron said that the United States had had a long tradition of combating torture. When
allegations of torture arose, including allegations against government officials, they were
investigated and, if needed, prosecuted. The Government was also committed to investigating other
such abuses committed by law enforcement authorities. What had happened at Abu Ghraib was
Inexcusable and indefensible. The Government had carried out over 600 investigations and over 250
individuals had been held accountable for detainee abuse, and the investigations and charges
continued.
The United States was an open society. It could not fail to have been noticed that there had been a
wide public debate in United States civil society about the abuses. The Government had listened and
made changes. A Parliamentary group from the Organization for Security and Cooperation in Europe
had visited Guantanamo, Mr. Lowenkron observed, and one of the visitors had later told journalists
that it was a model prison. The International Committee of the Red Cross (ICRC) had also recently
visited the prison and said that conditions had improved and that they were satisfied with the
conditions there.

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An important part of the fight to combat torture woridwlde included cooperation with international
organizations. The Government also engaged In a number of key multilateral activities designed to
eliminate and reduce the practice of torture. For example, the Government supported the work of
the United Nations Special Rapporteur on torture throughout the world. It had invited the Special
Rapporteur and his colleagues to visit Guantanamo - an invitation that he had unfortunately turned
down, Mr. Lowenkron said. Though the United States was not seeking a seat on the new Human
Rights Council, it was committed to upholding human rights, Including the prevention of torture
worldwide, and it would continue to do so.
JOHN B. BELllNGER, Head of the Delegation and Legal Adviser of the Department of State, said the
United States recognized the importance of Its legal obligations and the key role that the Committee
played in the treaty-monitoring process.
At the outset, he reiterated the United States Government's absolute commitment to upholding its
national and international obligations to eradicate torture and to prevent cruel, Inhuman or
degrading treatment or punishment worldWide. The President of the United States had made It clear
that torture any"where was an affront to human dignity everywhere and that freedom from torture
was an Inalienable right. Beyond the protections in the Constitution, United States criminal law
prohibited torture. There were no exceptions to that prohibition. The Congress had also passed laws
that provided for sel/ere federal sanctions, both civil and criminal, against those who engaged in
torture outside the tenrltory of the United States.
The United States focus on eradicating torture' and punishing its perpetrators would be incompiete
without a parallei effort to help its victims recover from abuses, Mr. Bellinger said. Congress had
established and funded programmes that assisted victims of torture, domestically and overseas, and'
the United States had contributed far more than any other country in the world to the United
Nations Voluntary Fund for Victims of Torture, contributing more than $ 32 million.
Late last year, the President signed into law the Detainee Treatment Act of 2005, which included a
provision that codified In law the already eXisting polley against the use of cruel, Inhuman or
degrading treatment, as that term was defined under the obligations of the United States assumed
under the Convention, Mr. Bellinger said.
In respect of Committee questions concerning United States actions taken in response to the
terrorist attacks upon the country on 11 September, Mr. Bellinger said that it was the view of the
United States that the detention operations in Guantanamo Bay, Cuba, In Afghanistan and In Iraq
were governed by the law of armed conflict, which was the lex spec/alis applicable to those
operations. At the conclusion of the negotiation of the Convention, the United States had made It
clear that the Convention was never Intended to apply to armed conflicts and had emphasized that
that would result in an overlap of different treaties which would undermine the objective of
eradicating torture. No country 'had objected to that understanding.
In any case torture was ciearly and categorically prohibited under both human rights treaties and
the law of armed conflict, Mr. Bellinger noted. While the United States maintained its view that the
iaw of armed conflict was the lex spec/alis governing the detainee operations, they were pieased to
provide extensive information about those operations'ln a sincere spirit of cooperation with the

Committee.
While acuteiy aware of the innumerable allegations that had appeared in the press and in other fora
about various United States actions, Mr. Bellinger asked that the Committee not beiieve every
allegation it had ever heard. Allegations about United States military or Intelligence activities had
become so hyperbolic as to be absurd. The Committee shouid not lose sight of the fact that those
incidents were not systemic.
.

Response by Deh!gation to Questions Sent by the Committee in Advance

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JOHN B. BELUNGER, Legal Adviser at the Department of State, responding to a series of written
questions prepared by the Committee in advance and sent to the State party beforehand, said that,
concerning the memoranda drafted by the Department of Justice's Office of Legal Counsel In 2002
and December 2004 that provided legal advice on the meaning of the term "torture" under the
extraterritorial criminal torture statute that Implements portions of the Convention against Torture,
nothing in those memos changed the definition of torture governing United States obligations under
the Convention from what the United States accepted upon ratification of the Convention. The
opinion was requested to provide operational gUidance with respect to the implementation of the
criminal statute at the level of detail needed to guide United States government officials.
The Office of Legal Counsel later withdrew the August 2002 opinion and Issued another opinion
dated 30 December 2004, which was confined to an Interpretation of the extraterritorial criminal
torture statute. The August 2002 opinion was withdrawn not because it purported to change the
definition of torture, but rather because it addressed questions that were not necessary to address.
Neither opinion purported to change the definition of torture set out in Article 1 as understood by
the United States.
With regard to Committee concerns that references to 'torturell as involving "extreme" acts in the

December 2004 memorandum were compatible with the Convention, the fact that the Convention
defined torture in Article 1 and then subsequently referred in Article 16 to "other acts of cruel,
inhuman or degrading treatment or punishment" refiected the recognition of the negotiators that
torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading
treatment or punishment. Specifically because of the aggravated nature of torture, Mr. Bellinger
said, States parties agreed to comprehensive measures to prohibit It under criminal law, to
prosecute perpetrators found in territory under their jurisdiction, and not to return individuals to
other States where there were substantial grounds for believing that such persons would be In
danger of being subject to torture. 1n contrast, the obligations regarding cruel, inhuman or
degrading treatment or punishment were far more limited.
Mr. Bellinger said the United States respectfully disagreed with the Committee's suggestion that
both of the Office of Legal Counsel memorandums on the extraterritorial criminal torture statute
were more restrictive than previous United Nations standards, Including the 1975 Declaration. The
interpretation of the term "severe" in the December 2004 memorandum refiected the understanding
that torture constituted a more aggravated form of abuse than that covered by "cruel, inhuman or
degrading treatment or punishment".
Before ratifying the Convention, the Unlted·States concluded that, with the sole exception of
prohibiting certain acts of torture committed outside the territory of the United States, state and
federal law covered all the offences stated in the Convention. The United States had filled that lone
shortcoming, Mr. Bellinger noted, by enacting the extraterritorial criminal torture statute.
There was no specific federal crime styled as "torture" for acts occurring Within United States
territory, Mr. Bellinger said. The reason was simply that any act of torture falling within the
Convention definition, as ratified by the United States, was already crlmlnalized under United States
federal and state laws. Those laws, which met the requirements of the Convention, were binding on
government officials and were enforced through a variety of administrative procedures as well as
criminal prosecutions. Additionally,. civil suits provided remedies In many cases.
Concerning alleged secret detention facilities under the de facto effective control of the United .
States, Mr. Bellinger felt it Important to underscore that all the components of the United States
Government were obligated to act in compliance with the law. The United States Government did
not permit, tolerate or condone unlawful practices by personnel or employees, including contractors,
under any Circumstances. The extraterritorial criminal torture statute made It a crime for a person
acting under cover of law to commit, attempt to commit or conspire to commit torture outside the

United States. In addition, pursuant to the Detainee Treatment Act of 2005, the United States
prohibited cruel, inhuman or degrading treatment or punishment that applied to any persons In the
custody or under the physical control of the United States Government, regardless of nationality or
physical location.
Continuing to respond to Committee questions, another member of the delegation said that While
the United States was aware of allegations of torture and ill-treatment, it disagreed with the
assertion that they were widespread or systemic. Those allegations should be placed in context, as

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they related to a minute percentage of the overall number of persons who had been detained.
Moreover, It was well-known that al-Qalda were trained to lie arid that the "Manchester Manual"
instructed all al-Qalda members, when captured, to allege torture, even if they were not subject to
abuse. The United States had provided numerous examples of specific measures taken in response
to incidents of maltreatment or misconduct at Department of Defense detention facilities at
Guantanamo Bay and in Afghanistan and Iraq.
The ICRC had access to Department of Defense theatre interment detention facilities, including
Guantanamo, Iraq and Afghanistan, and met privately with detainees. The Department of Defense
accounted for detainees under its control fully and prOVided notice of detention to the ICRC as soon
as possible, normally within 14 days of capture. While their dialogue with the ICRC was confidential,
the delegation noted, the United States Government took seriously the matters the ICRC raised and
greatly valued its historic and ongoing relationship with them.
With regard to the Committee's concerns about investigations, the United States report described
those in great detail in the annex to its report. The Department of Defense had conducted 12 major
investigations Into all aspects of its detention operations following the events of Abu Ghraib.
Turning to the Committee's questions about interrogation rules, the Detainee Treatment Act of
2005, previously mentioned, also provided for uniform interrogation standards that no person in the
custody or under the effective control of the Department of Defense or under detention in a
Department of Defence facility shall be subject to any treatment or technique of interrogation not
authorized by and listed in the United States Army Field Manual on Intelligence·Interrogation. The
.
delegation said that those standards applied to military, Department of Defense civilians, and
contract interrogators. Any activities of the CIA would be subject to the extraterritorial criminal
torture statute and toe Detainee Treatment Act's prohibition on cruel, inhuman or degrading
treatment Or punishment.
The delegation said that, consistent with its obligations under Article 3, the United States did not
transfer persons to countries where it determined that it was "more likely than not" that they would
be tortured. That polley applied to all components of the United States Government and to
Individuals In United States custody or contrOl, regardless of where they might be detained.
Generally speaking, In Immigration removal proceedings an Individual seeking protection from
removal from the United States under Article 3 could appeal an adverse decision of the immigration
judge to the Board of Immigration Appeals. If the Board dismissed the individual's administrative
appeal or denied his or her motion to reopen, the individual could file a petition for review of the
Board's decision with the approprtate federal court of appeals.
The delegation said that Secretary Rice had recently explained that the United States and other
countries had long used renditions to transport terrorist suspects from the country where they were
captured to their home country Or to other countries where they could be questioned, held or
brought to justice. Rendition was a vital tool In combating international terrorism, which took
terrorists out of action and saved lives, The delegation emphasized that the United States did not
transport and had not transported detainees from one country to another for the purpose of
interrogation using torture, The United States had not transported anyone, and would not transport
anyone, to a country if it believed he Or she would be tortured,
Concerning Committee questions about diplomatic assurances, the delegation emphasized that
diplomatic assurances were used sparingly and were not a substitute for case-by~case
determination. There had been cases where the United States had considered the use of diplomatic
assurances, but declined to return individuals because the it was not satisfied such an assurance
would satisfy. its obligations under Article 3.
Regarding concerns that the United States had returned indiViduals to countries that the United
States considered not to respect human rights, the delegation emphasized that Article 3 did not
prohibit the return or transfer of individuals to countries with a poor human rights record per se, not
did it apply with respect to returns that might involve "ill-treatment" that did not amount to torture,
the delegation noted.
The delegation said that there was no penal immunity for any person for the crime of torture under

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United States law. Additionally, although there had been no criminal prosecutions initiated under the
extraterritorial criminal torture statute to date, there had been prosecutions for offences occurring
outside the United States under other statutory provisions, including the Uniform Code of Military
Justice.
Concerning the education and training of military and Department of Defense civilian personnel,
including contractor employees, the Department of Defense conducted comprehensive training
programmes on treatment and Interrogation of detainees, the delegation said. Law of War training
was provided at least annually for all Department of Defense personnel involved in conducting or
supporting detention operations, including contractors. That extensive training on the law of war
also included instruction on the prohibition against acts of torture and the requirement of human
treatment. Mechanisms for systematic review of military, Department of Defense civilians and
contractor employees involved in detention operations included inspector general visits, command
visits and inspections and Congressional and intelligence oversight committees and Visits, as well as
reviews conducted pursuant to unit procedures and by the chain of command. They also included
case-by-case specific investigations and overall reviews.
Regarding whether the December 2004 memorandum created unnecessary confusion for trainers
and personnel, the answer was no, the delegation said. The main finding of the investigation was
that a small group of individuals, acting in contravention of United States law and Department of
Defense policy, had been responsible for perpetrating the acts of abuse at Abu Ghraib. That finding
had been supported in the 12 other major reviews conducted by the Department of Defense, the
delegation said. There had been a total of 120 deaths of detainees In Department of Defense control
In Afghanistan and Iraq. There had been no deaths in Guantanamo. The vast majority of deaths.
were caused by factors such as natural causes, injuries sustained on the battlefield, or detalnee-ondetainee viol<;nce. 1n only 29 cases had abuse or other violations of law or polley been suspected.
The process of holding violators accountable was ongoing, the delegation observed. Between the
time they had submitted their answers last Friday and today, the Army had charged a senior officer,
the former head of the Abu Ghraib prison, for his alleged involvement in the abuse of detainees and
for allegedly Interfering With. the abuse investigation.
Regarding remedies and compensation available to detainees who had allegedly been abused while
under United States control, 33 detainees, Including some from Abu Ghraib, had filed claims and the
process was stili ongoing.
Questions

by

Experts

FERNANDO MARINO MENENDEZ, the Committee Expert serving as Rapporteur for the report of the
United States, said that the United Stetes was a leader in the international community and an
important guide and touchstone for the IlPplication of International law.
Regarding lex spedalis, he u.nderstood the United States delegation to say that the Convention
against Torture did not apply in time of armed conflict. In that connection, did the United States still
hold that they were still engaged in a sui generis armed conflict against terrorism? There were other
international human rights instruments that held during the time of armed conflict inclUding the
International Covenant on Civil and Political Rights, Mr. Marino Menendez said. While he understood
the delegation's reservations about revealing confldentiallnformation, he noted that any act
undertaken by an intelligence service was attributable to the State itself, under international law,
and that was still a concern of the Committee.
Mr. Marli\o Menendez said that he was concerned that the United States had not Incorporated the
full provisions of Article 1 in its laws. He understood the debate that had taken place with regard to
"extreme" or "severe" suffering or pain induced by a certain act. He understood that extremely
severe was not appropriate, because in his view the Convention did not refer to extremely severe,
but just severe. It just needed to be severe. The expression mental suffering was also In the
definition and this was the SUbject of a reservation or a qualification by the United States when it
deposited its instrument of ratification, and it was limited to four particular modalities. Article 1,
however, did not establish modalities for mental suffering. He wished to know what the delegation
thought about that.
It was true that there was a distinction between torture and cruel and inhuman treatment. Article

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15 prohibited a confession extracted under torture, but not one extracted under cruel or Inhuman
treatment. Maybe they could speak of specific practices that would rise to the level of torture, such
as those committed during interrogation. Forced disappearance did constitute a sort of torture, as In
that relatives of the disappeared suffered mental or phy.sical anguish that was the equivalent. There
were legal instruments, such as the draft convention against forced disappearances, and he feit that
there was a sort of consensus by the International community that it did represent a form of torture.
Water boarding should be a prohibited practice because it was at the very limits of the practice of
torture. The holding of persons incommunicado. The practice of sexual aggression in prisons, was
that a form of torture or not?
Speaking of Guantanamo, Mr. Marino Menendez said he had heard the delegation's statement that
the ICRC and other NGOs had Visited the facilities there and found the conditions to be good, but
given that the United Nations Special Rapporteur had not been able to visit with detainees there, he
remained concerned that the practices carried out there might be in contravention of the
Convention.
Human Rights Watch had, in many documented cases, found that civil and military personnel In the
United States had abused or killed detainees, involVing 600 personnel and 450 detainees. Mr.
Marino Menendez said only 54 members of the military had been convicted, 40 sentenced to prison,
and only 10 received prison sentences of one year or more, even in cases of serious abuse. Under
the doctrine of chain of command, responsibility should be held against a superior in the case. By
that logic, the State was ultimately responsible for those acts of torture.
Regarding extraordinary renditions, the European Parliament was. organizing investigations
concerning the nights of detainees to secret prisons and the Committee would await the outcome of
these investigations. Secret or clandestine prisons were contrary to international law and he
referred to the crime of forced disappearance, which also had a link to torture.
In that context, he was pleasantly surprised that the delegation reported the United States policy
was generally not to rely on diplomatic assurances, but he wondered if the actual practice of the
United States was in conformity with the Convention's standards. That was related to the expulsion
of foreigners in extradition proceedings. He understood that the Secretary of State made that final
determination and that there was no appeal pOSSible. He would appreciate the delegation's
confirmation of that understanding.
GUIBRIL CAMARA, the Committee Expert serving as Co-Rapporteur for the report of the United
States, said that the role of the Committee, while It was not a Court, was to Interpretthe
Convention. In that respect it was the interpretation of the Committee that would hold, and not that
of the delegation, in terms of determining whether the United States was or was not acting In
conformity with the Convention.
He felt they needed to go back to Article 1 of the Convention Itself to look at the definition of
torture. What was the legal foundation of the practice of legal reservations by the United States?
Mr. Guibril felt that one or the other would have to give way, and it was the interpretation of the
Committee, once again, that would pr~vail,

He recognized that not all acts constituted torture. A State could penalize various offences, but if
they constituted torture and were not prosecuted as torture, there was non-compliance with the
provisions of the Convention, Mr. Guibril commented. He recommended that the delegation reread
paragraph 2 of Article 16 of the Convention.
He had read In a French newspaper an article about a young British man, originally from Zambia,
Who had been held in Guantanamo for thirty-three months. He was released, but he stated that he
was tortured. He was tortured, with a view, probably, to obtain eVidence, Mr. Guibril said, but the
man had said that he was also the victim of racist insults by his guards. That man was In London
now and, as far as he knew, there had been no inqUiry. and no compensation. As Mr. Guibril
understood the delegation to say, the United States were thus obliged to undertake an inquiry and
make reparations. The young man also said that it was because he had converted to Islam that he
had been SUbjected to all that he had undergone.
In the French language there was a distinction between law and right. There was not just a rule of
law, there Was also a moral aspect. With regard to the United States, it should apply both to citizens

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and foreigners, he said.

Other Committee Experts also raised a series of questions, An Expert asked a question on sexual
violence against female detainees In ,United States facilities. In that regard, she wondered why the
enactment of the Prison Rape Act had been delayed and whether prison officials received training
that Included a gender dimensiOn. Other issues raised Included the fact that the United States was
not a signatory to the Rome Statute of the International Criminal Code; the eXistence of clandestine
or secret prisons; did the United States delegation consider that mock drowning constituted torture,
or simply cruel or inhuman treatment; and whether there were measures to monitor CIA operations
to ensure that they were not violating the provisions of the Convention.
.
The Chairman of the COmmittee, Andreas Mavrommatis, said that although the United States had a
long and illustriOUS human rights record, it also bore a great responsibility. The photos of Abu
Ghraib recalled for him the time of Saddam Hussein and brought back many memories. He was
really shocked that those abuses were committed by authorities of a country like the United States.
The duty of the United States was to take the appropriate monitoring measures to prevent the
occurrence of the events at all, and who took responsibility for that? His advice was that they should
have more contact with NGOs and really examine the complaints they alleged, rather than
dismissing them as false. He reiterated strongly his belief that habeas corpus provided one of the
strongest protections against impunity, and he strongly suggested the United States reconsider its
position in that regard.
Mr. Mavrommatis noted that the Committee had been made aware of at least one case of rendition.
He was sure that investigations were being carried out, but suggested that perhaps they could be
done in a more independent manner, by being carried out by the courts instead of the Department
of Defense, for example.
For use of the information media; not an official record

I
I

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RELEASED IN FULL

Schou, Nina E

L4J.f2-

Cc:
Subject:

Schou, Nina E
Thursday, May 05, 2005 2:15 PM
Barrios, Stacy M
Danies, Joel D; Legal-L-HRR
Final CAT report

Importance:

High

Attachments:

LEGAL-#11089.-v1-CAT_report_annexes.DOC; Prosper Declaration.pdf; Waxman
Declaration.pdf; LEGAL-#10927-v2-CAT_ANNEX_FINAL_SENT_TO_S.DOC; LEGAL-#
10992-v1-CAT_Report_- _5-3-05. DOC

'From:

Sent:
To:

Stacy You should have the cable instructing you to submit this. Here is the report itself. These are in separate documents
because of formatting issues, including the PDF files. Please be sure to remember, though, that this is a unitary document
and shoUld be presented as such. It should be organized as follows:
Second Periodic Report of the USA to the CAT (title page)
Annex 1
Waxman Declaration (Tab 1, Annex 1)
Prosper Declaration (Tab 1, Annex 1)
Annex 2-7
Please forward in hard copy, and electronically to the Secretariat of the CAT first thing Friday morning, as we will be
releasing it to NGOs at 10 am D.C. time.
Thanks,
Nina
647-4262

LEGAL-#11089-v1Prosper
Waxman
LEGAL-#10927-v2- LEGAL-#10992-v1CAT_report-"nn... lClaralion.pdf (278 Itlaration.pdf (145 KCALANNEX_F1N... CAT_Report__-_...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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"

.

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LA4~
WEEKLY REPORT OF GENEVA MISSION
October 4 - 8, 2004
(U) Russian Bilateral. We participated with LlACV Marshall Brown and
DOD representatives in bilateral talks with the Russians in preparation for
the CCW meetings next month. Some progress app~ared to be made in
identifying areas of possible flexibility in the technical requirements which
would satisfy some ofRussia's principal objections while maintaining the
integrity of the 3D-nation proposal.
(U) Waxman Visit. We accompanied Matt Waxman, Deputy Assistant
Secretary for Detainee Affairs at DOD, on a series of meetings with various
representatives of the ICRC. There was general agreement that the
establishment of this office and the communications between Waxman and
the ICRC in Washington have proved extremely valuable.
(U) Human Rights: Enforced Disappearances. With LIHRR (Brancato), we
actively participated in this week's negotiations on the draft Chairman's text.
There was, for the first time, a thoroughgoing review of the articles that
would create an international monitoring mechanism, and ofrelated
questions, including what the mechanism's mandate would be and whether it
would be free-standing or an integral part of an existing body, like the
Human Rights Committee created by the ICCPR. On the substantive
provisions, limited progress was made on such important issues like
definition (still not/not to the US's liking), crimes against humanity
(partially bracketed and still under review), criminalization of enforced
disappearance and accomplish actions (may be moving in a favorable
direction for the U.S.), extra-territorial jurisdiction. The entire week was
devoted to day-long negotiating sessions on this, and Gilda's contributions
were brilliant. Gilda is highly regarded and respected in the room, from the
Chairman on down, and continues to be an essential component of the U.S.
. delegation to these talks. The next round is set for late Jimuary. The U.S.
delegation was tremendously aided by excellent negotiating instructions and
by timely support from a variety of officers in L and DoD, for which weare
.mightily grateful.
(SBU) European Community and Disaster Reduction Prepcom. In the
margins of the enforced disappearances negotiations, we managed to devote

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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substantial time this week also to assisting the Department and Mission
officers to prepare for the PrCpcom that will begin on Monday (Colombus
Day) and carry over until Tuesday. We led a Mission demarche with the
Australians and the Canadians this week to solicit their support 9n this
matter and have reported the (reasonably positive) results back to EC
watchers at the Department. As an adviser to the U.S. delegation to the
Disaster Reduction Prepcom, we. will assist in managing the EC
participation/status issue, under the rules of procedure, as well as provide
legal advice on the draft outcome document. The actual conference will
take place in January in Kobe, Japan.

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Conf I rmat i on

Report -

Memory

Job number

631

Date

Jan-l0 02:30pm

To

95140080

Document pages

007

Start time

Jan-IO 02:30pm

End time

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007

Slatus

OK .

Job number

: 631

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Time
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Name

/

: Jan-10-2005 02:31pm

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***

DEPARTIV\ENT OF STATE
OffiCE 01= THE LEGAl.. ADVISER
I tUMAN RfGHTS AND REFUGeES

,L/HRR... ROOM 3422

220'l.C: STR.EE't~ 'N~W_
20520-6310

'WASHINGTON~ D.C_

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY:.ARCHIE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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RELEASED IN FULL

DEPARTIVI.ENT C>F STAYE
OFFICE OF JHE I.J::GAl ADVISER
''1UMAN niGHTS AND REFUGEes

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UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIflE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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UNCLASSIFIED
L0428

UNCLASSIFIlltELEASED IN FULL
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WASHINGTON, D.C. 20520·6310

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UNITED STATES DEPARTMENT OF STATE '
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

,

From;

Gildo Brancato

Fox:

(202)736-7028

Phone: (202) 647-4065 or x 727;:

Date:

UNCLASSIFIED
L0429

11
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t./LN.4/kVV)/ WV..U/IVIJ::>L. D.Ke V.I

UNCLASSIFIED
RELEASED IN FULL

International Instrument
for the Protection of all Persons
'from Enforced Disappearances

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Presidency proposal
11 February 2005

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

UNCLASSIFIED

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t/CNA/LUU)/ WU.LLIlYll:>L. D.KC Y.l

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Preamble
The States Parties to (this instrument],.
Considering the obligations of States under the Charter of the United Nations to
promote universal respect for, and observance of, human rights and
fundamental freedoms,
Having regard to the Universal Declaration of Human Rights,
Recalling the International Covenant on Economic, Social and Cultural Rights,

the International Covenant on Civil and Political Rights and all other relevant
international Human Rights Law, international Humanitarian Law and
international Criminal Law instruments,
Recalling the Declaration on the Protection of All Persons from Enforced
Disappearance adopted by the General Assembly of the United Nations in its
resolution 47/133 of 18 December 1992,
Aware of the extreme seriousness of enforced disappearance, which constitutes a
crime and, in certain circumstances defined in international law, a crime against
humanity,
.
Determined to prevent enforced disappearances aud combat impunity for the crime

of enforced disappearance,
Affirming the right of any person not to be subjected to an euforced

disappearance, mW the right of victims to justice and to reparatioD, and their right
to know the truth about the circumstances of an enforced disappearance and the fate
of the disappeared person,
Have agreed as follows:
Article 1 (former Article I)
For the purposes of [this instrument], enforced disappearance is considered to
be the depri';ation of a persan's liberty, ill whatever form, arrest, detention,
abduction' or any other form of deprivation of liberty committed by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person, which
places such a person outside the protection of the law.
Article 2 (former Article 2-2 : non State actors) G~iv 1

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Article 3 (former Article Ibis)
1.

No one shall be subjected to enforced disappearance.

2.

No exceptional circ.umstances whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency, may be
invoked as a justification for enforced disappearance.

UNCLASSIFIED

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Article 4 (former Article 2)
Each State Party shall take the necessary measures to ensure that enforced
disappearance, as defined in artieIe 1, constitutes -an offence under its criminal law.

Article 5 (former Article 2 bis)
The widespread or systematic practice of enforced disappearance constitutes a crime
against humanity as defined in applicable international law and shall attract the
consequences provided for under such applicable intemationallaw.

Article 6 (former Article 3)
1. Each State Party shall take the necessary measures to prosee\lte and pllBiSfl hold
criminally responsibl4"t~!!lesewhe
_

a) Any person who co~ orders, solicits or Induces the commission of,
attempts to commit, is an accomplice or participates in eemlllit or assist ill !!le
eernmisslElfl e f an enforced disappearance.

1.

The follewillg shall be pUllished:

Ea)
The perpetraters of an ellforeed disappearanee alld !!lese wfle are
aeeessones te it;

2.

(b)

i\:ttarnpted ellforeed disappearanee;

(e)

Censpiraey te eemmit llfi enforeed disappearenee.

The following shall alse bo pWlished:

(a)
Those whe erder er eneslifllge the eernrnlSSlell er attempted
eernrnissisll ef sueh en effullee, and those whe facilitate its cernmissiell eF Ilttempted
eemlllissien by aidiag, abettiag er e!!lerwise assistillg ill it, illsludillg by pre'fidillg !!le
means fur its eomlllissiell er attempted eornmissiell;

•

b) The, superior who:
(i) knew, or consciously disregarded information which clearly indicated, that
subordinates under hisfber effective authority and control were committing or
about to commit an offence of enforced disappearance, and

•

(Ii) exercised effective responsibility and control on activities which were
concerned with the crime of enforced disappearance, and who

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(iii) failed to take all necessary and reasonable measures within his or her power
to prevent or halt repress the commission of the enforced disappearance or tEl
repress its eemmission ef to submit the matter to the competent authorities for
investigation and prosecution.
c) subparagraph b) above is without prejudice to the higher standards of
responsibility for military commander or a person effectively acting as a
military commander, which apply under international law.

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2. No order or instruction from any public authority, civilian, military, or other,
may be invoked to justify an offence of enforced disappearance.

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Article 7 (former Article 4)
1.
Each State party shall make the offence of enforced disappearance punishable
by appropriate penalties which take into account its extreme seriousness.
2.

Each State Party may establish
a)
Mitigating circumstances, iftler alia in particular for persons who,
having been implicated in the commission of an enforced disappearance,
effectively contribute to bringing the disappeared person forward alive or
make it possible to clarify cases of enforced disappearance or to identify the
perpetrators 0 f an enforced disappearance;
b)
Without prejudice' to other criminal procedures, aggravating
circumstances, inter alia in particular in the event of the death of the
disappeared person or the commission of an enforced disappearance in
respect of pregnant women, minors or other particularly vulnerable persons.

Article 8 (former Article 5)
Without prejudice to article 5,
I.
A State Party which applies a' statute of limitation in respect of enforced
disappearance shall take the necessary measures to ensure'that the term of limitation
for criminal proceedings:
a)
Is slillstaffiial of a long duration and proportionate to the extreme
seriousness 0 f this 0 ffence;
b)
Commences from the moment when the offence of enforced
disappeararice ceases ooe the fate of the eislljlpearee persoll is establishee., taking
into account its continuous nature.

2.

The term of limitatioo fur criminal proceeeillgs vAlieh is pfOyided for in
paragraph 1 shall be SIlS)lendee fur as IOllg as no effuctiye remedy is lwailable
ill Ii State Part)' te any 'fietiffi of OIlfureee disappelll'ooee. Each State. Party
shall guarantee the right of victims of enforced disappearance to an
effective remedy during the term of limitation.

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Article 9 (former Article 9)
1.
Each State Party shall take such measures as may be necessary to establish its
jurisdiction over the offence ofenforced disappearance:
a) When the offence is committed in any territory under its jurisdiction or on board

a ship flying its flag or efHlfl aircraft registered in aeeorrlooee with its legislation
at the time ofthe eVOIlts; that State;

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b) When the alleged offender is one of its nationals or a stateless person 1lSlia!ly
resieOllt in its territory;
c) When the disappeared person is one of its nationals and the State Party considers
it appropriate.
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E/CNAI1Um/WU:UllVlI::>L.I).KtV.1

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2.
Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over the offence of enforced disappearance when the alleged
offender is present in any territory under its jurisdiction, unless it extradites, or
transfers surrenders him or her to another State in accordance with its
international obligations or traBsfers surrenders him or her to an international
criminal tribunal whose jurisdiction it has recognized.
3.
[This instrument] does 110t exclude any additional criminal jurisdiction
exercised in accordance with iHtefflal national law.
Article 10 (former Article 10)
1.
Upon being satisfied, after an examination of information available to it, that
the circumstances so warrant, any State Party in whose territory a person alleged to
have committed an offence of enforced disappearance is present shall take him or her
into custody or take other legal measures to ensure his or her presence. The custody
and other legal measures shall be as provided for in the law of that State party but
may be continued only for such time as is necessary to ensure the person's presence
at enaele aBy criminal, surrender trlffiSfer or extradition proceedings to be institllted.
2.
A State Party which has taken the measures referred to in paragraph I shall
immediately carry out all investigation a preliminary inquiry to establish the facts. It
shall notify the States Parties whieh may !lave jurisaietioH in aoooralffioe with
referred to in article 9, paragraph 1, of the measures it has taken in pursuance of
paragraph 1 of this article, including detention and the circumstances warranting
detention, and the findings of its iwrestigatiElH preliminary inquiry, indicating
whether it intends to exercise its jurisdiction.
.
3. Any person in custody pursuant to paragraph 1 shall be assisted in communicating
immediately with the nearest appropriate representative of the State of which he or
s~onal, or, if he or she is a stateless person, with the representative of the
State where he or she usually resides .
Article 11 (former Article 11)

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Th~ State Party in the territory under whose jurisdiction a person alleged to
have committed an offence of enforced disappearance is found shall, if it does not
extradite that person, or trllflSfer surrender him or her to another State in accordance
with its international obligations or transfer surrender him or her to an
international criminal tribunal whose jurisdiction it has recognised, submit the case to
its competent authorities for the purpose of prosecution.
2.
These authorities shall take their decision in the same manner as in the case of
any ordinary offence of a serious nature under the law of that State Party. In the cases
referred to in article 9, paragraph 2, the standards of evidence required for prosecution
and conviction shall in no way be less stringent than those which apply in the cases
referred to in article 9, paragraph 1.
3.
Any person against whom proceedings are brought in connection with an
offence of enforced disappearance shaD be guaranteed fair treatment at all stages
of the proceedings. Any person tried with an offence of enforced disappearance
."crJ.y perseR regareiiRg whom proeeeelings are brel!gfit in eellneotieR with all eHfureeel

UNCLASSIFIED

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disappearance shall be tried shall benefit from a fair trial before a by-a competent,
independent and impartial court whieh has eeen duly established ey law and \'fllich
resJleets tfte guarantees oCa mir trial court or tribunal established by law.
4.

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Any persoH regardiHg wftom proeeedings are llrougHt in eoooeetioH \'Iitll an
eafureed dis&\3pearanee shall be guaranteed fair treatmeHt at all stages of the
proceedings

Article 12 (former Article 12)
I.
Each State Party shall ensure that any individual who alleges that a person has
been subjected to enforced disappearance has the right to report the facts to a the
competent authorities, which shall examine the allegation promptly and
impartially and, where appropriate, immediately undertake without delay a
thorough and impartial investigation. Appropriate steps' shall be taken, where
necessary, to ensure that the complainant, witnesses, relatives of the disappeared
person and their defence cOUIlsel, as well as persons participating in the investigation,
are protected against all ill-treatment or intimidation as a consequence of the
complaint or any evidence given.

2.
Where there are reasonable grounds for believing that a person has been
subjected to enforced disappearance, eaeh State Part;' shall rerer the matter to the
authorities referred to in paragraph I fef shall undertake an investigation, even if
there has been no formal complaint.
3.

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Each State Party shall ensure that the .authorities referred to in paragraph I:
a)
Have the necessary powers and resources to conduct the investigation
effectively, including the power to compel suspects or witnesses to &\3pelll' berere
it, including access to documentation and other information relevant for their
investigation;
b)

Reeeiyes the iHrermatioll it needs fur their investigation;

c)
Has a6COSS to allY offieial plaee of detentioB wfiere it is suspected
there are reasonahle grouBds to belieye that the disappeared person may be
present.
Has aeeess to liB)' otheF plaee, Uf/Oll judieial authorisation, where
d)
there aFe rell50llable grouBds to llelie¥e that the disappeared persoB mllY lle
present.

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b) Have access, if necessary with the prior. anthorisation of a judicial
authority, which shall decide as rapidly as possible, to any place of detention
or any other place where there are reasonable grounds to believe that the
disappeared person may be· present.
4.
Each State Party shall take the necessary measures to prevent and punish acts
that lilEely to hinder the conduct of the investigations. It shall ensure in particular that
persons suspected of having committed an offence of enforced disappearance are not
in a position to influence the progress of the investigations by means of pressure or
acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the

UNCLASSIFIED

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disappeared person or their defence counsel, or at persons participating
investigation.

In

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Article 13 (former Article 13)
1.
For the purposes of extradition between States Parties, the offence of enforced
disappearance shall not be regarded as a political offence or as an offence connected
with a political offence or as an offence inspired by political motives. Accordingly, a
request for extradition based on such an offence may not be refused on these grounds.

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The offence of enforced disappearance shall be deemed to be included as an
2.
extraditable offence in any extradition treaty existing between States Parties before
the entry into force of [this instrument].
3.
States Parties undertake to include the offence of enforced disappearance as
an extraditable offence in every extradition treaty subsequently to be concluded
between them.
4.
If a State Party, which makes extradition conditional on the existence of a
treaty, receives a request for extradition from another State Party with which it has no
extradition treaty, it may consider [this instrument] as the necessary legal basis for
extradition -in respect of the offence of enforced disappearance.
S.
States Parties which do not make extradition conditional on the existence of a
treaty shall recognise the offence of enforced disappearance as an extraditable offence
between themselves.
6.
Extradition shall, in all cases, be subject to the conditions provided for by the
law of the requested State Party or by applicable extradition treaties, including, inter
alia, conditions in relation to the minimum penalty requirement for extradition and the
grounds upon which the requested State Party may refuse extradition or make it
subject to certain conditions.
7.
Nothing in [this instrument] shall be interpreted as imposing an obligation to
extradite if the requested State Party has substantial grounds for believing that the
request has been made for the purpose of prosecuting or punishing a person on
account of that person's sex, race, religion, nationality, ethnic origin, membership of
a particular social group or political opinions or that compliance with the request
would cause prejudice to that person's position for anyone of these reasons.

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Article 14 (former Article 14)

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States Parties shall afford one another the greatest measure of legal assistance
in connection with any criminal investigation or proceedings relating to an offence of
enforced disappearance, including the supply of all evidence at their disposal
necessary for the proceedings.

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2.
Such legal assistance shall be subject to the conditions provided for by the
domestic law of the requested State Party or by applicable treaties on mutual judicial
assistance, including, inter alia, the conditions in relation to the grounds upon which
the requested State Party may refuse to grant judicial assistance or may make it
subject to conditions.

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Article 15 (fonner Article 15)
States Parties shall cooperate with each other and shall afford one another the
greatest measure of assistance with a view to assisting victims of enforced
disappearance, and in searching for, locating and releasing disappeared persons and,
in the event of death, in eXhuming and identifying them and returning their human
remains.
Article 16 (fonner Article 15 bis)
1.
No State Party shall expel, return ("refouler"), surrender or extradite a person
to another State where there are substantial grounds for believing that he or she
would be in danger ofbeing subjected to enforced disappearance.
2.
For the purpose of detennining whether there are such grounds, the competent
authorities shall take into account all relevant considerations, including, where
applicable, the existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights or of serious violations of iuternational
humanitarian law.
Article 17 (fonner Article 16)
1.
Without prejudice to other international obligations of the State Party
with regard to deprivations of liberty, each State Party shall, under its law:

a) Establish the conditions under which orders of deprivation of liberty may
be given;
b) Indicate those officials authorities authorised to order deprivation ofliberty;
c) Guarantee that any person deprived of liberty shall be held solely in
officially recognised and supervised places of deprivation of liberty;

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d) Guarantee that any person deprived of liberty shall be authorised to
communicate with and be visited by ft his/her family member, counselor
any other person of his/her choice, subject only to conditions established
by law and, if he/she is not a national of the detaining State, have access to
his/her consular authorities;
e) Guarantee access to the places where persons are deprived of liberty by the
judicial competent authorities and institutions entitled by law;
1) Guarantee that any person deprived of liberty and any person with a

legitimate interest shall, in all circumstances, be entitled to take proceedings
before a court, in order that that court may decide without delay on the
lawfulness of the deprivation of liberty and order the his or her release if that
deprivation of liberty is not lawful.
2.
Each State Party shall ensure eOffijlile the compilation and maintain
maintenance of one or more up-tO-date official registers and/or records of persons
deprived of liberty, which shall be made promptly available upon request to any
judicial or other competent authority or institution entitled under the law of the
State Party concerned or any relevant international legal instrument to which
the State concerned is a party. The infonnation contained therein shall include, as a
minimum:

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a) The identity of the person deprived of liberty;
b) The date, time and location where the person was deprived of liberty
and the identity of the authority who deprived the person of liberty ;
c) The authority that erdefeEl having decided the deprivation of liberty and
the reasons for the deprivation of liberty;
d) The authority fespellsillle £Of 5tij3efVisillg controlling the deprivation of
liberty;

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e) The place of deprivation of liberty, the date and time of admission to the
place of deprivation ofliberty and the authority responsible for the place of
Eletelltiell deprivation of liberty;
t) Elements regarding the physical integrity of the person deprived of

liberty;
g) In the event of death during the deprivation of .Iiberty, tbe
circumstances and cause of death and the destination of the human
remains;
h) The date and time of release or transfer to another place of detention, the
destination and the authority responsible for the transfer.
Article 18 (former article 16 bis - para 1 and 2)
1.
Subject to Articles 19 and 20, each State Party shall guarantee to the pefSell
deprived €If liberty aIld te his Elf her felati~'es, theif legal feJlfeselltatiyCll, theif seunsel
aIld ally JlefSeR aIltheri2ied 1:>,' them, as well as te ally JlefSeR able te elaim any person
with a legitimate interest in this information, such as relatives of the person
deprived of liberty, their representative or counsel, access to at least the following
information:
(a)

The autherity te vfflish the !lefsen has been hallEled evef;

(a)

The authority that erdefeEl haVing decided the deprivation ofliberty;

(b)
The date, time and location where tbe person was deprived of
liberty and admitted to the place of deprivation of liberty ;
(c)
The authority fes!lensible ref 5tij3efvisillg the !lefSeR dCJlrived
controlling the deprivation ofliberty ;
(d)
The whereabouts of the person deprived of liberty, including, in the
event of a transfer to another place of deprivation of liberty, the destination and
the authority responsible for the transfer;
(e)

The date, time and place of release ;

(1)

The state €If health ; Elements regarding the physical integrity of the
person deprived of liberty;
.

(g)

In the event of death during the deprivation of liberty, the
circumstances and cause of death and the destination of the buman
remains.

2.
Appropriate measures shall be taken, where necessary, to protect the persons
referred to in paragraph 1, as well as persons participating in the investigation, from

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any ill-treatment, intimidation or sanction as a result of the search for information
concerning a person deprived ofliberty.
Article 19 (former Article 16 bis - § 3-4)
1. Personal Galil information, including medical and' genetic data, which are
collected and/or transmitted within the framework of the search of a disappeared
person shall not be used or made available for purposes other than ihe search for
the disappeared person. This is without prejudice to the use of such
information in criminal proceedings relating to an offence of enforced
disappearance or to the,exercise of the right to obtain reparation.

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2. The collection, processing, use and storage Of personal information, including
medical and genetic data, shall not infringe or have the effect of infringing
human rights, fundamental freedoms or human dignity of an individual.
Article 20 (former article 17)
1.
States Parties may refuse requests for information referred to in article
18 Where necessary in a State respecting the rule of law and in accordance with
law if the transmission of information undermines the privacy or safety of a
person or hinders a criminal investigation or seriously impairs public security. In'
no case shall States Parties refuse information ou whether the person is deprived
of liberty and on his or her death in the course of a deprivation of liberty.
2.
Without prejudice to consideration of the lawfulness of the deprivation of a
person's liberty, States Parties shall guarantee to the relatives of the person deprived
of libert)' OF of the disfljlpeared persoll, their legal repfCSeIltatives, their eounsel and
any persall $thorized by the persoll deprived of liberty er by the disfljlpeared person
or by his er ker relatives, as well as tEl any ether person allle to elaim a legitimate
interest persons referred to in Article 18.1, the right to a prompt and effective
remedy as a means of obtaining without delay information referred to in article 18.1.
This right to a remedy maynotbe suspended or restricted in any circumstances,
Article 21 (former Article 18)
Each State Party shall take the necessary measures to ensure that persons are released
in a manner permitting reliable verification that they have actually been released.
Each State Party shall also take the necessary measures to assure the physical integrity
of such persons and their ability to exercise fully their rights at the, time of release,
without prejudice to any obligations to which such persons may be subjected by the
national law,
Article 22 (former Article 19)
1.
Without prejudice to Article 6, each State Party shall take the necessary
measures to prevent and punish impose sanctions on the foilowing conduct:

a) Delaying or obstructing the remedies referred to in articles 17.1.f and 20.2 ;

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E/CNAI2UU:'IWU,U/MI::iC.I).Kb V.I

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b) Failure to record the deprivation of liberty of any person, or the recording of any
information which the official responsible for the official registers andlor records
!tHews knew or oeghtlo lrnow should have known to be inaccurate;
c) Refusal by all offieial to provide information on the deprivation of liberty of a
person, or the provision of inaccurate information, even though the legal
requirements for providing such information have been met.
Article 23 (former Article 20)
\

I. Each State Party shall ensure that the training of law enforcement personnel, civil
or military, medical personnel, public officials and other persons who may be
involved in the custody or treatment of any person deprived of liberty includes the
necessary education and information regarding the relevant provisions of [this
instrument], in order to:

a) Prevent the involvement of such officials in enforced disappearances;
b) Emphasize the importance of prevention and investigations in relation to
enforced disappearances;
c) Ensure that the urgent need to resolve cases of enforced disappearance is
recognized.
.
2. Each State shall ensure that orqers or instructions prescribing, authorizing or
encouraging enforced disappearance are prohibited. Each State shall guarantee
that a person who refuses to obey such an order will not be punished.
3. Each State Party shall take the necessary measures to ensure that the persons
referred to in paragraph I who have reason to believe that an enforced
disappearance has occurred or is planned shall report the matter to their superiors
and, where necessary, to the appropriate authorities or organs vested with
reviewing or remedial powers.
Article 24 (former Article 22)
I.
For the purposes of [this instrument], "victim" means the disappeared person
and any individual who has suffered direet harm as a direct result of that j'larson's an
en.forced disappearance.

2.

Each victim has the right to know the truth regarding the circumstances of
the enforced disappearance, the progress and results of the investigation and
the fate of the disappeared person. Each State Party shall take appropriate
measures in this regard.

3.

Eaeh Slate Party shall take the aeeessRl')' Hleaseres to easHl'<! that eYer;' vietim
!<Hows the ll1ith regarEling the eirellHlslallecs of the eaforecEl Elisappcaraaec aaEl
the fate of the Elisapj3eared person. In partielllar, it Each State Party shall take
the necessary measures to search for, locate and release disappeared persons
and, in the event of death, locate, respect and return their hnman remains.

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Each State Party shall ensure in its legal system that gIlarantee the right of
the victims of an enforced disappearance Ie obtains reparation and has an

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UNCLASSIFIED
enforceable right to prompt, fair and adequate compensation for the harm eaaseato
them.

5.
The right to obtain reparation referred to in paragraph 4 inelaaes full
eomllensatiofl for covers material and psychological harm and. It may sllall also
ille/lIae, where appropriate, otber modalities of reparation such as :
a) Restitution;
b) Rehabilitation;
c) Satisfaction; including restoration of honour and reputation;
d) Guarantee of non repetition.
6.
Without prejudice to the obligation to continue the investigation until the fate
of the disappeared person has been clarified, each State Party shall take the
appropriate steps with regard to the legal situation of the disappeared persons
whose fate has not been clarified and that of their relatives, in fields such as social
welfare, financial matters, family law and property rights.
7.
Each State Party shall guarantee the right to form and participate freely
in organizations and associations concerned with contributing to the
establishment of the circumstances of enforced disappearances and of the fate of
disappeared persons, and with assistance to victims of enforced disappearance.
Article 25 (former articles 23,

2~,

25)

I.
Each State Party shall take the necessary measures to prevent and punish
under its criminal law :

a)
The wrongful removal of children who are subjected to enforced
disappearance, of children whose father, mother or legal guardian is subjected to
enforced disappearance or children born during the captivity of a mother subjected to
enforced disappearance;
b)
The falsification, concealment or destruction of documents attesting
to the true identity of the children referred to in subparagraph (a).
2.
Each State Party shall take the necessary measures to search for and identify
the children referred to in paragraph I (a) BIle (ll) and to return them to their
families of origin, in accordance with relevant legal procedures and international
agreements.
3.
States Parties shall assist one another in searching for, identifying and locating
the children referred to in artiele 23 paragraph 1 (a).
4.

Considering the need to protect the best interests of the children referred
to in paragraph 1 (a), and the right of the child to preserve and reestablish his or her identity, including nationality, name and family
relations as recognized by law, there shall be legal procedures in States
Parties which recognize a system of adoption or other form of placement
of children to review the adoption or placement, and, as appropriate,
annul the adoption or placement of children which originated in enforced
disappearance.

UNCLASSIFIED

12

L0441

UNCLASSIFIED
5.

In all cases, and in particular iu all matters relating to this article, the best
interests of the child shall be a primary consideration, and a child who is
capable of forming his or her own views shall have the right to express those
views freely, the views of the child being given due weight in accordance with
the age and maturity of the child.

Article 26 (former Part II)
Article 26-1 (new)
A Committee shall ensure the follow up of the [present instrument].
Article 26-2 (former Article 0 bis)
1. The Committee shall co-operate with all the relevant Organs, Offices and
Specialized Agencies and Funds of the United Nations, with all relevant treaty
bodies instituted by relevant international instruments and Special procedures
of the Commission on Human Rights of the United Nations, with all relevant
regional intergovemmental organizations or bodies, as well as with all relevant
state institutions, agencies or offi«:;es working towards the protection of all
persons against enforced disappearances
2. As it discharges its mandate under Article II B, the Committee shall
ensure full coordination with the Working Group on Enforced or
Involuntary Disappearances, created by resolution 1980/45.
3. As it discharges its mandate in particular under Article II C bis, the
Committee shall take dully into account the observations and
recommendations of other treaty bodies instituted by relevant
international human rights instruments on matters of enforced
disappearances.
Article 26-3 (former Article II-A)

,.
1. Each State Party shall submit to the Committee, through the Secretary-General of
the United Nations, a report on the measures taken to give effect to its obligations
under [this instrument], within two years after the entry into force of [this instrument]
for the State Party concerned.

2.

The Secretary-General. of the United Nations shall make this report available
to all States Parties.

3.
Each report shall be considered by the Committee which shall issue such
comments, observations or recommendations as it may deem appropriate. The
comments, observations or recommendations shall be communicated to the
State Party concerned, which may respond to them, on its own initiative or at the
request of the Committee.
4. The Committee may also request at any time information from States relevant to
the implementation of the [present instrument].

1.

;,

,
l
i

I-

,
I.

Article 26-4 (former Article II-B)

UNCLASSIFIED

13

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t/CN.4llUU)/WI.J.UIlVU::>I.-.[).KC V.J

UNCLASSIFIED
I.
A request that a disappeared person should be s~ught and found may be
submitted to the Committee by relatives of the disappeared person or their legal
representatives, their counsels or any person authorized by them, as well as by any
person having a legitimate interest. .
2. If the Committee considers that the request submitted in pursuance of paragraph I
a) is not manifestly unfounded,
b) does not constitute an abuse of the right of submission of such
eeffiffilll1lel%tieHs requests,
c) has already been presented to the competent bodies of the State Party
concerned, wheu this possibility exists
d) is not incompatible with the provisions of[the present instrument],
it shall request the State Party concerned to provide it with information on the
situation of the person concerned, within a time limit set by the Committee.
3.
In the light of the response provided by the State Party' concerned in
accordance with paragraph 2, the Committee shall transmit a recommendation
to the State Party and shall inform the person presenting the request. The
Committee may also request the State Party to take appropriate measures,
including interim measures, and to report to it on them, within a time'limit set by
the Committee, taking into account the urgency of the situation.
4.
The Committee shall continue its efforts to work with the State Party
concerned for as long as the fate of the person sought remains unresolved. The
person presenting the request shall be kept informed.
Article 26-5 (former Article II-C)
I.

If the Committee considers that a visit to the territory of a State Party is
necessary to discharge its mandate, it may request one or more of its members
to undertake a visit and report back to it without delay. The member or
members of the Committee who undertake the visit may be accompanied if
necessary by interpreters, secretaries and experts. No member of the
delegation, with the exception of the interpreters, may be a national of the
State to which the visit is made.

2.

The Committee shall seek the co-operation of the State Party concerned. It
shall notify the State Party concerned in writing of its intention to organize a
visil, indicating the composition of the delegation and the purpose of the visit.
The State Party shall inform the Committee as soon as possible of its
agreement or opposition to the visit in a territory over which it has jurisdiction.

3.

If the State Party agrees to the visit, the Committee and the State Party

concerned shall work together to arrange the modalities for the visit and . /
the State Party shall provide the Committee with all the facilities needed I?
for an effective visit.

I

!
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\.

t

Article 26-6 (former Article II~C bis)

UNCLASSIFIED

14

!

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'-" ..... • ...., .... vv"",· • ............., ........__ '-' .•

~

.•

~_,

.•

UNCLASSIFIED
I.

A State Party may at the time of ratification or at any time afterwards declare
that it recognizes the competence of the Committee to receive and consider
communications from or on behalf of individuals subject to its jurisdiction
who claim to be victims of a violation of the provisions of [the present
instrument]. No communication shall be received by the Committee if it
concerns a State Party which has not made such a declaration.

2.

The Committee may not consider a communication where:
a) The communication is anonymous,
b) The communication constitutes an abuse of the right of submission of such
communications or is incompatible with the provisions of [the present
instrument],
e) The eeffilffilflieatiofl is iflSllffieieatly substoouated or is ffiooifestly lIflfelifided;

c) The same matter is being examined under another procedure of international
investigation or settlement;
d) The complainant has not exhausted all effective available domestic remedies.
This shall not be the rule where the application of the remedies is
unreasonably prolonged.
3.
If the Committee considers th!lt the communication meets the requirements set
out in paragraph 2, it shall transmit the communication to the State Party concerned,
requesting it to provide observations and comments within a time limit set by the'
Committee. In need be, it shall reeoffiffieHd request iriterim measures.
4.
The Committee shall hold closed meetings when examining communications'
under the present article. It shall inform the person who presented the
communication of the responses provided by the State Party concerned. It shall
terminate the procedure set out in this article by communicating its views to the State
Party and to the author of the communication.
Arti~le

26-7 (former Article II-C ter)

If the Committee receives information which appears to it to contain wellfounded indications that enforced 'disappearance is being practised on a widespread or
systematic basis in the territory of a State Party, it may, after seeking from the State
Party concerned all relevant information on the situation, refer bring the matter to the
attention to the Secretary-General of the United Nations, who will act In accordance
with the powers granted to hirnJher by the Charter of the United Nations.
Article 26-8 (former Article II-E)
1.
The Committee· shall have competence solely in respect of deprivations of
liberty which commenced after the entry into force of [this instrument}.

2.
If a State becomes a party to [this instrument] after its entry into force, the
obligations of that State vis-a-vis the Committee shall relate only to deprivations of
liberty which commenced after the entry into force of [this instrument] for the State
concerned.

I,
I

I

Article 26-9 (former Article II-F)

I

I

UNCLASSIFIED

15

I
L0444

tofU'L'!1 "VV)! WV.""IIVU;>c..lJ.KC v .1

UNCLASSIFIED.
1.

The Committee shall submit an annual report on its activities under [this
instrument) to the States Parties and to the General Assembly of the United
Nations.

2.

Before publishing in the annual report of an observation on a State Party, the
State Party concerned shall be informed in advance and shall be given
reasonable time to answer. This State Party may request the publication of its
comments or observations in the report.

Article 27 (former Article III-O )
. [This instrument] is without prejudice to any other international instrument or
national legislation which does or may contain provisions of wider application.
Article 28 (former Article III-A)
1.

[This instrument] is open for signature by [... ).

2.
[This instrument] is subject to ratification by [... J. Instruments of ratification
shall be deposited with the Secretary-General of the United Nations.
3.
[This instrument] is open to accession by [... J. Accession shall be effected by
the deposit of an instrument of accession with the Secretary-General of the United
Nations.
Article 29 (former Article III-B)
1.
[This instrument) shall enter into force on the thirtieth day after the date of
deposit of the 20 th instrument ofratification or accession.

3. For each State ratifying [this instrument] or acceding to it after the deposit of the
20 th instrument of ratification or accession, [this instrument] shall enter into
force on the thirtieth day after the date of the deposit of its own instrument of
ratification or accession.
,

Article 30 (former Article I1I-C)

i

The Secretary-General of the United Nations shall inform all States Members
of the United Nations and all States which have signed [this instrument] or acceded to
it ofthe following:
(a)

Signatures, ratifications and accessions under article 28;

(b)

The date of entry into force of[this instrument] under article W 29.

i

i
i·

Article 31 (former Article III-D)
The provisions of [this instrument] shall extend to all parts of federal States
without any limitations or exceptions.
.

i,
I

I
!

I

Article 32 (former Article IlIcD bis)

I
l

UNCLASSIFIED

16

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L0445

E/CN.4/:lUU:ltWu.:tlIlVll::>L.lJ.KC V.I

UNCLASSIFIED
1.
Any State, at the time of signature, ratification or accession, may declare that
[this instrument] will b~'extended to all territory for whose international relations it is
responsible. Such a declaration shall take effect when [this instrument) enters into
force for the State conc~med .

Notification of such an extension may be addressed at any time to the
. 2.
Secretary-General of the United Nations, and the extension will take effect [...] days
after notification has been received by the Secretary-General ofthe United Nations.
Article 33 (former Article III-F)
[This instrument] is without prejudice to the provIsIons of international
humanitarian law, including the obligations of the High Contracting Parties to the four
Geneva Conventions ofl2 August 1949 and the Additional Protocols thereto of 8
June 1977, or to the opportunity available to any State Party to authorize the
International Committee of the Red Cross to visit places of detention in situations not
covered by international humanitarian law.
Article 34 (former article III-G)
1.
Any State Party to [this instrument] may propose an amendment and file it
with the Secretary-General of the United Nations. The Secretary-General shall
thereupon communicate the proposed amendment to the States Parties to [this
instrument] with a request that they notify him or her whether they favour a:
conference of States Parties for the purpose' of considering and voting upon the
proposal. In the event that within four months from the date of such communication
at least one third of the States Parties favours such a conference, the
Secretary-General shall convene' the conference under the auspices of the United
Nations. Any amendment adopted by a majority of two thirds of the States Parties
present and voting at the conference shall be submitted by the Secretary-General to all
the States Parties for acceptance.

2.
An amendment adopted in accordance with paragraph I of this article shall
enter into force when two thirds of the States Parties to [this instrument] have
accepted it in accordance with their respective constitutional processes.
3.
When amendments enter into force, they shall be binding on those States
Parties which have accepted them, other States Parties still being bound by the
provisions of [this instrument] and any earlier amendment which they have accepted.

i
I

1.

/-

\
,1,
i

Article 35 (former article III-H)
I.
[This instrument], of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of
the United Nations.
2.
The Secretary-General of the United Nations shall transmit certified copies of
[this instrument] to all States.

j

,-

UNCLASSIFIED

17

L0446

UNCLASSIFIED
RELEASED IN FULL
Opening Statement
Matthew Waxman
Head of U.S. Delegation, UN. Human Rights Committee

Distinguished Chair, Members ofthe Committee, my name is
Matthew Waxman. I am the Principal Deputy Director ofPolicy Planning at
the Department of State, and I serve as head ofthe United States delegation
appearing today and tomorrow morning before the Human Rights
Committee. My delegation is honored to appear before the Human Rights
Committee to present the Second and Third Periodic report of the United
States concerning its implementation ofthe International Covenant on Civil
and Political Rights. We look forward to an informative and productive
exchange of views and perspectives.
As my colleague John Bellinger did when he appeared before the
Committee Against Torture just two months ago, I would like to take this
opportunity to reiterate the United States Government's commitment to·
upholding our national and international human rights obligations. One such
obligation is that of reporting to this Committee on measures we have taken
to give effect to our Covenant obligations. Our report documents a wealth
of information updating our Initial Report and reflecting how the rights

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE lD: 30 JUL 2009 200706444

UNCLASSIFIED
L0447

UNCLASSIFIED
2

protected by the Covenant continue to be implemented and protected under
U.S. laws, policies and programs. Our commitment is also demonstrated by
the prodigious efforts we have gone to in preparing our report, answering
your questions and preparing for this hearing.
We have assembled a strong, senior-level expert delegation to appear
before you. Representing the United States are members of many ofthose
agencies that are most actively involved in implementing U.S. laws and
programs that give life and effect to U.S. obligations under the Covenant.
Following my opening remarks, Assistant Attorney General for Civil Rights
Wan Kim will make a short introductory statement on behalf ofthe
Department of Justice. In addition to the Departments of State and Justice,
our delegation includes representativt:s from the Department of Homeland
Security, the Department ofInterior, and the Department ofDefense~ Other
agencies were also actively involved in drafting the U.S. report and in
responding to the Committee's questions.
We take pride in the numerous protections available under U.S. laws
anc\ pOlicies where the Covenant rights find expression. Indeed we have
found this process of review and reflection about the rights embodied int eh
Covenant extremely helpful as we consider how to redouble our efforts to
advance and protect human rights within the United States.

2

UNCLASSIFIED
L0448

UNCLASSIFIED
3

The seriousness with which we have approached our reporting
obligations reflects our view that the Covenant is the most important human
rights instrument adopted since the U.N. Charter and the Uruversal
Declaration of Human Rights as it sets forth.a comprehensive body of
human rights protections. The United States played a significant role in
drafting those foundational instruments.
The United States is equally proud to have actively participated in
the process to transform the human rights and fundamental freedoms
referred to in those founding instruments into the legally binding treaty
obligations elaborated in the Covenant. This is particularly true in light of
the parallels between the rights and freedoms protected under the U.S.
Constitution, including its Bill of Rights and subsequent amendments, and
the human rights and fundamental freedoms protected under the Covenant.
Many of the most cherished rights protected by the U.S. Constitution, such
as freedom of religion, speech, press, and assembly, the right to trial by jury,
the prohibition on unreasonable searches and seizures, and the prohibition on
cruel and unusual punishments, also find expression and protection in the
Covenant.
As a general matter, the legal framework within the United States to
implementthe Covenant that was described in the U.S. Initial Report

3

UNCLASSIFIED
L0449

UNCLASSIFIED
4

remains essentially unchanged. This is particularly the case in those areas
where U.S.laws'or practice that so unequivocally prohibit conduct
addressed by the Covenant are so firmly settled that there are no noteworthy
developments to report.
The U.S. report extensively updates our Initial Report on the major
developments related to the human rights and fundamental freedoms
protected by the Covenant, including new laws, jurisprudence, policies and
programs that expand protections in various areas and provide remedie~ for
violations ofthe protected rights. Our report also describes a large number
'of important judicial decisions by U.S. courts -- including a significant
number of decisions by the U.S. Supreme Court -- which may be of interest
to the Committee.
Of course, the United States has also confronted new challenges as we
have sought to respect individual rights in accordance with the Constitution .
and U.S. law, including our international treaty obligations while also
fulfilling our duty to protect the public welfare and national security. In this
context, I would like to say a word about the attacks of September 11, 2001,
which posed unprecedented challenges for my country. The United States
was forced to confront a new threat - that of large-scale armed attacks by an
international terrorist group directed against U.S. territory. The U.S.

4

UNCLASSIFIED
L0450

UNCLASSIFIED
5

overhauled its law enforcement efforts and took critical measures to secure
its territory against further attacks. Congress revised many U.S. laws to
ensure that they effectively addressed this new threat. These measures were.
accomplished in a manner consistent with the Constitution and U.S. law,
including our international treaty obligations.

In appearing before the Committee this week, my delegation is well
aware of the intense international interest about a wide range ofissues
relating to the actions of the United States outside of its·territory.
As we have explained before, the United States believes that the law
of armed conflict - international humanitarian law - provides the proper
legal framework regarding some ofthe questions raised by the Committee.

***
In addition, it is the long-standing view of the United States that the
Covenant by its very terms does not apply outside of the territory of a State
Party. We are aware of the views of members of this Committee regarding
the extraterritorial application of the Covenant, including the Committee's
General Comment No. 31. While we have great respect for the Committee's
views, as the Committee is aware, the United States has a principled and
long-held view that the Covenant applies only to a State Party's territory. It
is the long-standing view of my government that applying the basic rules for

5

UNCLASSIFIED
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UNCLASSIFIED
6

the interpretation of treaties described in the Vienna Convention on the Law
of Treaties leads to the conclusion that the language in Article 2(1)
establishes that States Parties are required to respect and ensure the rights in
the Covenant only to individuals who are BOTH within the territory of a
State Party and subject to its jurisdiction. First, this interpretation is
confirmed by the ordinary meaning ofthe treaty text. Article 2(1) ofthe
Covenant states explicitly that State Parties are required to respect and
ensure the rights in the Covenant to all individuals, and I quote, "within its
territory and subject to its jurisdiction."
Additionally, this plain meaning ofthe treaty language is also
confirmed by the Covenant's negotiating record. The negotiating record of
the Covenant makes clear that the inclusion ofthe reference to "within its
;

territory" in Article 2( I) was adopted as a result of a proposal made over
fifty years ago by U.S. delegate Eleanor Roosevelt -- specifically to ensure'
that States Parties would not be obligated to implement the Covenant outside
their territories. Mrs. Roosevelt emphasized that the United States was
"particularly anxious" that it not assume "an obligationto ensure the rights
recognized in it to the citizens of countries under United States occupation"
or in what she characterized as "leased territory" outside the territorial
boundaries of a State Party. She further explained: "An illustration would be

6

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UNCLASSIFIED
7

the occupied territories of Germany, Austria and Japan: persons within those
countries were subject to the jurisdiction ofthe occupying States in certain
respects, but were outside the scope of legislation ofthose States." Several
delegations spoke out against the proposed U.S. amendment at the time,
arguing that a nation should guarantee fundamental rights to its citizens
outside of its territorial boundaries as well as within them. They suggested
that the "and" in the U.S. amendment should be replaced with the word "or."
However, the U.S. amendment to change the text to the current formulation
of Article 2 was adopted at the 1950 session by a vote of 8 in favor and 2
opposed, with 5 abstentions. Subsequent efforts to delete the phrase "within
its territory" were also defeated. Accordingly, as State Department Legal.
Adviser Conrad Harper explained to this Committee in 1995, the words
"within its territory" had been debated and were added by vote. The clear
understanding emerged that such wording limited the State Party's
obligations to within its territory. Thus the territorial limitation in Article 2,
far from being inconsistent with the object and purpose of the treaty, reflects
the clear and expressed intention of those countries that negotiated the
instrument.
Accordingly, to those who suggest that the U.S. interpretation
regarding the scope of the treaty is new or novel, I must say that this is

7

UNCLASSIFIED
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8

simply not fair or correct. This has been the U.S. position for more than 55
years.
Although we explained the US. interpretation ofthe territorial scope
of the Covenant in great detail in Annex I of the report, I have reiterated and
expanded upon it here for two reasons. First, because the United States is
committed to upholding its Covenant obligations, it is important for the
United States to be clear on when those obligations apply. Let me be clear:
while the U.S. obligations under the Covenant do not apply outside of U.S.
territory, it is important to recall that there is a body ofboth domestic and
international law that protects individuals outside U.S. territory.
Furthermore, as a matter o£ domestic U.S. constitutional law, US. citizens
enjoy a wide range of constitutional protections outside of US. territory.
Second, clarifying our position on the scope of the Covenant, we
hope, is useful in explaining our responses to this Committee's questions
relating to military operations outside the territory ofthe United States. In
keeping with the approach we took in drafting the U.S. report, and in light of
our principled and longstanding view on the scope and application of U.S.
obligations under the Covenant, the United States has not included in its
formal response to the Committee's written questions information regarding
activities outside of its territory or governed by the law of armed conflict.

8

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UNCLASSIFIED
9

As a courtesy, we provided this Committee with information we provided
this May to the Committee Against Torture on these issues. While
preserving the legal position ofthe United States, we seek to be responsive
to the Committee's questions. We hope that the Committee will respect our
efforts to focus this hearing on the issues falling squarely within the scope of
the Covenant.

***
In returning to matters involving our implementation ofthe
Covenant within the United States, we hope that our Initial Report and our
Second and Third Periodic Report have explained in detail the way in which
the United States robustly implements its obligations under the Covenant.
We cherish our vigorous democratic processes -which benefit from'
comprehensive freedoms of speech, assembly and the press -- our strong and
independent judicial system, and our well established body of constitutional,
statutes and common law designed to protect civii and political rights.
Perhaps to a greater extent than in any other country, people in the United
States share a culture and history ofchallenging their government through
judicial processes. It is, thus, not a coincidence that many of the authorities
referred to in our report stem from litigation and from decisions of the
United States Supreme Court and other courts. Indeed, in many cases, the

9

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UNCLASSIFIED
10

protections afforded by the U.S. Constitution extend beyond the protections
afforded by the Covenant. For example, as the United States noted in its
Initial Report to the Committee in 1994, "Under the First Amendment,
opinions and speech are protected, categorically, without regard to content.
Thus, the right to engage in propaganda ofwar is as protected as the right to
advocate pacifism, and the advocacy of hatred as protected as the advocacy
offellowship." Similarly, people in the United States enjoy freedom to
exercise their religion that extends beyond the requirements ofthe Article 18
ofthe Covenant. In his opening remarks, Assistant Attorney General Wan
Kim will briefly address the actlve measures taken by the Department of
Justice to zealously protect constitutional rights within the United States and
ensure equal protection for all.
While we work to implement the Covenant at home, the United
States has continued its steadfast efforts to promote respect for human rights
around the world. In keeping, with its own history and a long-standing
commitment to promote human rights around the world, the United States
devotes considerable resources to assistance to other nations in pursuit of
these objectives. In 2006, for example, my government is spending 1.4
billion dollars on programs and activities to advance democracy
internationally. A considerable portion ofthose resources is focused

10

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·

.

UNCLASSIFIED
11

;

specifically on the promotion of human rights. That is also a record of
which we are proud, and a tradition we intend to continue.

***
As citizens ofthe United States, we have much to be proud of in our
civil rights achievements at home and our efforts in promoting human rights
abroad. But as citizens ofthe United States we also hold ourselves to a very
high standard and recognize that there is always more work to be done to
safeguard human rights. We also recognize that along with the role the
United States plays in the international system come continuing - indeed,
never-ending - responsibilities. We look forward to continuing our dialogue
with the Committee on these important issues.

***
At this time, I would like to introduce my colleague from the U.S.
Department of Justice, Assistant Attorney General for Civil Rights, Wan
Kim, who overseas the important work of the Department of Justice in
enforcing federal civil rights laws.

11

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UNCLASSIFIED
Harris. Robert K
Harris, Robert K
Thursday, October 27,20058:46 A'i"M"'Leoal-L-HRR- Andre Surena Finall

From:
Sent:
To:

I

Cc:

I

Subject:

~ttachments:

RELEASED IN PARTLA 3.
B6
-,
ISandra L. Hodgkinson
l"anoynoogKlnson
0,',".,
'
rian; I
I

I

I

Corrected 16161 - Core document.pdf; Corrected -16159 - Periodic Report -21 October
2005.pdf; Lellers from Ambassador Moley.pdf; Update to Annex One of the Second Periodic
Report of the US to CAT1.pdf; Leller to Menendez.pdf

Here is the final of the ICCPR report. I would delete any others you have your system to avoid confusion.
Thanks again.
Bob
From:

sent:
To:
Cc:
Subject:

Gale, T Hanny(Geneva)
Wednesday, October 26, 2005 8:08 AM
Harris, Robert K; Harris, Robert K
Kovar, Jeffrey 0

ICePR

Bob,
As promised attached are the "new" files in adobe formaf

Jeff,
Bob went to NY and won't be reachable until tomorrow.
I.

COrrected 16161 - :orrected - 16159 COre documen..,

Periodic R...

Hanny Gale

~"tt"rs from
Update to Annex
~"tt"r to
""bassador Moley... 000 of the Sec... mendez.pdf (30 K8)

Office of Legal Affairs
U.5. Mission Geneva
Tel: [411(0)22-749-4460

Fax: [41](0)22-749-4343
E-mail: GaleTH@state,gov
"A ffiend is someone who knows the song in your heart
and can sil1g it back to you when you have forgotten the words... "C'est bien agreabfe d'etre hllPoltant, mais c'est phIS important d'etre agreab/e"
This c-mai\ in unclassified per E.0.12958

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ill: I3 AUG 2009 200706444

uNCLASSIFIED
L0458

.:..H._ -"-

.,

.

.

~~.~

- - - - - '- _ . . . : .

,UNCLASSIFIED J3( /ltn y-Y .M.U..h~ &..11
L-/ /?1-1, L! i1';L-IN.ee. .
RELEASED IN PART
Enforced Disappearances Conventio~ B5
L A--I B
B5

•

The Convention is the product of 5 formal negotiating sessions at the Commission
on Human Rights beginning in 2003 and chaired by the French.
o It was developed at the initiative of Latin American countries to respond'
to. governmentally sanctioned disappearances and murders of political
opposition in the 1970s and 80s.
o NGOs ,and families of the disappeared were very engaged in the
negotiations.
'

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY:FRANKHPEREZ
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0459

UNCLASSIFIED

B5

•

The United States delegation participated in the negotiations to oppose proposals
that would have made the treaty more unacceptable. We involved DOD and DOJ
in this process.
.

•

The US has expre~sed its views on this Convention in various documents made
publicly available; including. at the Human Rights Council in June, during the
course of negotiations, and in our Clo,sin Statement delivered at the conclusion
of the negotiations in October 2005.

B5

UNCLASSIFIED
L0460

UNCLASSIFIED

~LEASEDt~PtV-T
"The General Assembly,
..................: \

"Taking note ofHuman Rights Council resolution 200611 /dated'

UNt-..A-.

B5

29 June 2006, by which the Council adopted the International

)

Convention for the Protection ofAll

ns rom Enforced

Disappearance,

B5
s a option of the International
e Protection of All Persons from Enforced

isappearance;
"2.

~ and

opens for signature, ratification and

accession the International Convention for the Protection of All
Persons from Enforced Disappearance, the text of which is aonexed to
this
resolution;
\
"3.

ReCommends'that the Convention be opened for

s\a~r.e at a'signing ceremony in Paris."

\

2Istmeeting
29 June 2006
[Adopted without a vote.]

Annex.
INTERNATIONAL CONVENTION FOR THE PROTECTION
OF ALL PERSONS FROM ENFORCED DISAPPEARANCE

Preamble
The States Parties to this Convention,
Considering the obligation of States under the Charter ofthe United Nations to

promote universal respect for, and observance of; human rights and fundamental
freedoms,
Having regard to the UniversalDeclaration of Human Rights,
Recalling the International Covenant on Economic, Social and Cultural

Rights, the International Covenant on Civil and Political Rights and all other relevant
'UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

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L0461

UNCLASSIFIED
international instruments in the fields ofhuman rights, humanitarian law and
international criminal law,

Recalling the Declaration on the Protection of All Persons from Enforced
Disappearance adopted by the General Assembly ofthe United Nations in its
resolution 47/133 of 18 December 1992, .
Aware ofthe extreme seriousness ofenforced disappearance, which
, constitutes a crime and, in certain circumstances defined in intemationallaw, a crime
against humanity,

Determined to prevent enforced disappearances and to combat impunity for
the crime of enforced disappearance,
Considering the rig~8:'1~ R!'rson not to be subiWed tQtDfQt\1~<!
.~

disappearance, the right ofvictims to justice and to reparation,

------------=--_---:.----.:-Affirming the right ofany victim to know the truth about the circumstances oil

an enforced disappearance and the fate of the disappeared person, and the right to
freedom to seek, receive and impart information to this end,

B5'

)
l-

-..l

Have agreed as follows: .

PART I
Article 1

I.

No one shall be subjected to enforceddisappearance.

2,

No exceptional circumstances whatsoever, whether a state of war or a threat of

war, internal political instability or any other public emergency, may be invoked as a .

D

B5

justification for enforced disappearance.
Article 2
B5
¥Ji9.!~t1ie,p'~!poses of this, Convention, enforced disaPPe,~cejs considered to , - - - - - - - - - ,

"' ;,be:th~~~est, 'detention, abduction or any other form of deprivation ~f liberty

,

';~, ,committed by agents of the State Qr by persons or groups ofpersons acting with the

'f'...
auth!lrization,
.... support or acquiescence ofthe State, followed by a refusal to

UNCLASSIFIED
L0462

UNCLASSIFIED
W,;ill&~gwledge the deprivation

of liberty or by concealment ofthe fate or whereabouts

ot!4\' disappeared person, which place such a person outside the protection ofthe
.",,}a:IV,
,

:.;.~

Article 3

B5

Each State Party shall take appropriate measures to investigate acts defined in
article 2 committed by persons or groups ofpersons acting without the authorization,
support or acquiescence of the State and to bring those responsible to justice.
Artiele 4
Each State Party shall take the necessary measures to ensure that enforced
disappearance constitutes an offence under its criminal law.
Article 5

D

B5

B5

The widespread or systematic practice ofenforced disappearance constitutes a
crime against humanity as defined in applicable international law and shall attract the
consequences provided for under such applicable intemationallaw.
Article 6
J.

Each State Party shall take the necessary measures to hold criminally

responsible at least:

B5

Any person who commits, orders, solicits or induces the commission

(0)

of; attempts tu commit, is an accomplice to or participates in an enforced
disappearance;
(b)

A superior who:
;

(i)

Knew, or consciously disregarded information which clearly
indicated, that subordinates under his or her effective authority
and control were committing or about to commit a crime of
enforced disappearance;

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L0463

UNCLASSIFIED
(li)

Exercised effective responsibility for and control over activities
which were concerned with the crime of enforced
disappearance; and

(iii)

.

Failed to take all necessary and reasonable measures within his
or her power to prevent or repress the commission ofan
enforced disappearance or to submit the matter to the
competent authorities for investigation and prosecution;

Subparagraph (b) above is without prejudice to the higher standards of

(c)

responsibility applicable under relevant international law to a military commander or
to a person effectively acting as a military commander.
2.

No order or instruction from any public authority, civilian, military or other,

may be invoked to justifY an offence ofenforced disappearance.

B5,,

Article 7

I.

Each State Party shall make the offence ofenforced disappearance punishable

by appropriate penalties which take into account its extreme seriousness.

2.

Each State Party may establish:
Mitigating circumstances, in particular for persons who, having been

(0)

implicated in the commission ofan enforced disappearance, etrectively contribute to.
bringing the disappeared person forward alive or make it possible to clarifY cases of
enforced disappearance or to identifY the perpetrators of an enforced disappearance;
(b)

,Without prejudice to other criminal procedures, aggravating

circumstance~

in particular in the event ofthe death of the disappeared person or the .

commission of an enforced disappearance in respect of pregnant women, minors,
persons with disabilities or other particularly vulnerable persons.
Article 8

Without prejudice to article 5,

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L0464

UNCLASSIFIED
J

A State Party which applie~ a statute of limitations in respect ofenforced

I.

disappearance shall take the necessary measures to ensure that the term of limitation

D

B5

D

B5

for criminal proceedings:
(0)

Is of long duration and is proportionate to the extreme seriousness of

this offence;
(b)

Commences from the moment when the offence of enforced

disappearance ceases, taking into account its continuous nature.
2.

Each State Party shall guaranlCe the right of victims ofenforced disappearance

to an effective remedy during the term of limitation.
Article 9
Each State Party shall take the necessary measures to establish its competence

1.

to exercise jurisdiction over the offence of enforced disappearance:
(0)

When the offence is committed in any territory under its jurisdiction or

on board a ship or aircraft registered in that State;
(b)'

When the alleged offender is one orits nationals;

(c)

When the disappeared person is one of its nationals and
, the State Party

considers it appropriate.
B5

2.

fEai:IiBtat!,,:Piii'ly:shall'likewise
take-sucli nieasures;as
mllY·I>l\'!1eceSl>lllY;to.'
. •
.
.
r·"V

/estjlblish it's competence to exercise jurisdiction.over the offence of.enforced
4.~appearance
. '.

when' the alleged offender is'present-in any territory
IlI!der its
.
~

. jprisdiction, unless it extradites or surrenders him or her to another state in
accQn:lance with·its.intemational obligations or surrenders'him or her40 an
international criminal tribunal whose jurisdiction it has.recognized.
~.'

3.

.

This Convention does not exclude any additional criminal jurisdiction

exercised in accordance with national law.

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L0465

UNCLASSIFIED
Article 10
I.

Upon being satisfied, after an examination ofthe infonnation available to it,

that the circumstances so warrant, any State Party in whose territory a person
suspected of having committed an offence ofenforced disappeamnce is present shall
take him or her into custody or take such other legal measures as are necessary to'
ensure his or her presence. The custody and other legal measures shall be as provided
for in the law ofthat State Party but may be maintained only fo~ such time as is
necessary to ensure the person's presence at crimina~ surrender or extradition
proceedings.
2.

A State party which has taken the measures referred to in paragraph I shall

immediately carry out a preliminary inquiry or investigations to establish the facts: It
shall notify the States Parties referred to in article 9, pamgraph I, ofthe measures it .
has taken in pursuance of pamgraph I of this article, including detention and the
circumstances warranting detention, and ofthe findings of its preliminary inquiry or
its inveStigations, indicating whether it intends to exercise its jurisdi.ction.
3.

Any person in custody pursuant to pamgraph I may communicate immediately

with the nearest appropriate representative ofthe State ofwhich he or she is a
national, or, ifhe or she is a stateless person, with the representative ofthe State
where he or she usually resides.
Article 11
I.

The State Party in the territory under whose jurisdiction a person alleged to

have committed an offence of enforCed disappearance is found shall, if it does not
extradite that person or surrender him or her to another State in accordance with its
international obligations or surrender him or her to an U;temational criminal tribunal
whose jurisdiction it has recognized, submit the case to its competent authorities for
the purpose of prosecution.
2.

These authorities shall take their decision in the same manner as in the case of

any ordinary offence of II serious nature under the law ofthat State Party. In the cases
referred to in article 9, paragraph 2, the standards of evjdence required for Prosecution

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L0466

UNCLASSIFIED
and conviction shall in no way be less stringent than those which apply in the cases
referred to in article 9, paragraph 1.
,I

3.

Any person against whom proceedings are brought in connection with an

offence ofenforced disappearance shall be guaranteed fair treatment at all stages of
the proceedings. Any person tried for an offence of enforced disappearance shall
.benefit from a fuir trial before a competent, independent and impartial court or
tribunal established by law,
Article 12
I,

Each State PiIrty shall ensure that any individual who alleges that a person has

been' subjected to enforced disappearance has the right to report the facts to the
•

d

•

•

competent authorities, which shall examine the allegation promptly and impartially
and, where necessary, undertake without delay a thorough and impartial investigation.
Appropriate steps'shall betaken, where necessary, to ensure that the complainant,
witnesses, relatives of the disappeared person and their defence counsel, as well as
persons participating in the investigation, are protected against all ill-treatment or
intimidation as a consequence of the compiaint or any evidence given.
2.

Where there are reasonable grounds for believing that a person has been

subjected to enforced disappearance, the authorities referred to in paragraph I shall
undertake an investigation, even if there has been no formal complaint.
3.

. Each State party shall ensure that the authorities referred to in paragraph I:
(0)

Have the necessary powersand resources to conduct the investigation

effectively, including access to the documentation and other information relevant to
their investigation;
(b)

Have access, ifnecessary with the prior authorization of a judicial

authority, which shall rule .promptly on the matter, to any plaCe ofdetention or any
other place where there are reasonable grounds to believe that the disappeared perSon
may be present.
4.

Each State Party shall take the necessary measures to prevent and sanction acts

that hinder the conduct of an investigation. It shall ensure in particular that persons

UNCLASSIFIED
L0467

UNCLASSIFIED
suspected of having committed an offence of enforced disappearance are not in a
position to influence the progress of an investigation by means ofpressure or acts of
intimidation or reprisal aimed at the complainant, witnesses, relatives ofthe
disappeared person or their defence counsel, or at persons participating in the
investigation.
Article 13
I.

For the purposes ofextradition between States Parties, the offence ofenforced

disappearance shall not be regarded as a political offence or as an offence connected
with a political offence or as an offence inspired by political motives. Accordingly, a
request for extradition based on such an offence may not be refused on these grounds
alone.
2.

The offence ofenforced disappearance shall be deemed tn be included lis an

extraditable offence in any extradition treaty existing between' States Parties before
the entry into force ofthis convention.
3.

States Parties undertake to include the offence ofenforced disappearance as an

extraditable offence in any extradition treaty subsequently to be concluded between
them.
4.

If a State Party which makes extradition conditional on the existence ofa

treaty receives a request for extradition from another State Party with which it has no
extradition treaty, it may consider this Convention as the necessary legal basis for
extradition in respect of the oflence ofenfurced disappearance.
5.

States Parties which do not make extradition conditional on the existence ofa

treaty shall recognize the offence of enforced disappearance as an extraditable offence
between themselves.
6.

Extradition shall, in all cases, be subject to the conditions provided for by the

law ofthe requested State 'Party or by applicable extradition treaties, including, in
particular, conditions relating to the minimum'penaltyrequirement for extradition and
the grounds upon which the requested State Party may refuse extradition or make it
subject to certain conditions.

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L0468

UNCLASSIFIED
7.

Nothing in this Convention shall be interpreted as imposing an obligation to

extradite ifthe requested State Party has substantial grounds for believing that the
request has beel;l made for the purpose ofprosecuting or punishing a person on
account ofthat person's sex, race, religion, nationality, ethnic origin, political
opinions or membership of a particular social group, or that compliance with the
request would cause harm to that person for anyone ofthese reasons.
Article 14
I.

States Parties shall afford one another the greatest measure of mutual legal

assistance in connection with criminal proceedings brought in respect ofan offence of
enforced disappearance, including the supply ofall-evidence at their disposal that is
necessary for the proceedings.
2.

Such mutual legal assistance shall be subject to the conditious provided for by

the domestic law ofthe requested State Party or by applicable treaties on mutoallegal
assistance, including, in particular, the conditions in relation to the grounds upon
which the requested State Party may refuse to grant mutual legal assistance or may
make it SUbject tu conditions.
Article 15
States Parties shall cooperate with each other and shall afford one another the
greatest measure of mutual assistance with a view to assisting victims ofenforced
disappearance, and in searching for, locating and releasing disappeared persons and,
in the event of death, in exhuming and identifying them and returning theii- remains.
Article 16
I.

-

No State party shall expel, return ("refouler"), surrender or extradite a person

to another State where there are substantial grounds for believing that he or she would
be in danger ofbeing subjected to enforced disappearance.
2.

For the purpose ofdetermining whether there are such grounds, the competent

authorities shall take into account all relevant considerations, including, where
applicable, the existence in the State concerned of a consistent pattern of gross,

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L0469

UNCLASSIFIED
flagrant or mass violations of human rights or ofserious violations of international
humanitarian law.
Article 17
J.

No one shall be held in secret detention.

2.

Without prejudice to other international obligations of the State Party with

regard to the deprivation of liberty, each State Party shall, in its legislation;
(a)

Establish the conditions under which orders of deprivation ofliberty

may be given;
(b)

Indicate those authorities authorized to order the deprivation of liberty;

(c)

Guarantee that any person deprived of liberty shall be held solely in

officially recognized and supervised places of deprivati9n of liberty;
(d)

Guarantee that any person deprived of liberty shall be authorized to

communicate with and be visited by his or her family, counselor any other person of
his or her choice, subject only to the conditions established by law, or, ifhe or she is a
foreigner, to communicate with his or her consular authorities, in accordance with
applicable. international law;
(e)

Guarantee access by the competent and legally authorized authorities

and institutions to the places where persons are deprived ofliberty, ifnecessary with
prior authorization from a judicial authority;
if)

Guarantee that any person deprived ofliberty or, in the case of a

suspected enforced disappearance, since the person deprived of liberty is not able to
exercise this right, any persons with a legitimate interest, such as relatives ofthe
person deprived of liberty, their representatives or their counsel, shall, in all

a

circumstances, be entitled to take proceedings before court, in order that the court
,
may decide without delay on the la\Vfulness of the deprivation of liberty and order the
person's release ifsuch deprivation of liberty is not lawful.
3.

Each State Party shall assure the compilation and maintenance ofone or more

up-to-date official registers and/or records of persons deprived of liberty, which shall

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L0470

UNCLASSIFIED
be made promptly available, upon request, to any judicial or other competent
authority or institution authorized for that purpose by the law of the State Party
concerned or any relevant international legal instrument to which the State concemed
is a party. The information contained therein shall include, as a minimum:
(a)

The identity ofthe per~on deprived of liberty; .

(b)

The date, time and place where the person was deprived of liberty and

the identity of the authority that deprived the person of liberty;
(c)

The authority that ordered the deprivation ofliberty and the grounds

for the deprivation of liberty;
(d)

The authority responsible for supervising the deprivation ofliberty;

(e)

The place of deprivation of liberty, the date. and time of admission to

. the place of deprivation ofliberty and the authority responsible for the place of
deprivation of liberty;
(f)

Elements relating to the state ofhealth ofthe person deprived of .

(g)

In the event of death during the deprivation of liberty, the

liberty;

circumstances and cause of death and tbe destination ofthe remains;
(h)

The date and time of release or transfer to another place ofdetention,

the destination and the authority responsible for the transfer.
Article 18

J.

,.

Subject to articles 19 and 20, each State Party shall guarantee to any person

with a legitimate interest in this information, such as relatives ofthe person deprived
of liberty, their representatives or their counsel, access to at least the following
information:
(a)

The authority that ord;;'ed the deprivation of liberty;

(b)

The date, time and place where the person was deprived of liberty and

admitted to the place of deprivation of liberty;

UNCLASSIFIED
L0471

UNCLASSIFIED
(c)

The authority responsible for supervising the deprivation of liberty;

(d)

The whereabouts of the person deprived of liberty, including, in the

event ofa transfer to another place of deprivation of liberty, the destination and the
authority responsible for the transfer;
(e)

The date, time and place of release;

(f)

Elements relating to the state ofhealth ofthe person deprived of

liberty; .
(g)

In the event ofdeath during the deprivation of liberty, the

circumstances and cause of death and the destination ofthe remains.
2.

Appropriate measures shall be taken, where necessary, to protect the persons

referred to in paragraph I, as well as persons participating in the investigation, from
any ill-treatment, intimidation or sanction as a result ofthe search for information
concerning a person deprived of liberty.
Article 19
I..

Personal information, inclUding medical and genetic data, which is collected

andlor transmitted within the framework ofthe search for a disappeared person shall
not be used or made available for purposes other than the search for the disappeared
person. This is without prejudice·to the use ofsuch information in criminal
proceedings relating to an offence ofenforced disappearance or the exercise ofthe
right to obtain reparation.
2.

The collection, processing, use and storage ofpersonal information, including .

medical and genetic data, shall not infringe or have the effect of infringing the human
rights, fun~amental freedoms or human dignity of ali individual.
Article 20
I.

Only where a person is under the protection ofllie law and·the deprivation of

liberty is subject to judicial control may the right to information referred to iIi article
'. 18 be restricted, on an exceptional basis, where strictly necessary and where provided
for by law, and ifthe transmission of the information would adversely affect the.

.UNCLASSIFIED
L0472

UNCLASSIFIED
privacy or safety ofthe person, hinder a criminal investigation, or for other equivalent
reasons in accordance with the law, and in confonnity with applicable international
law and with the objectives ofthis·Convention. In no case shall there be restrictions
on the right to infonnation referred to in article 18 that could constitute conduct
dermed in article 2 or be in violation ofarticle 17, paragraph I.
2.

.Without prejudice to consideration ofthe lawfulness ofthe deprivation ofa

person's liberty, States Parties shall guarantee to-the persons referred to in article 18,
paragraph 1, the right to a prompt and effective judicial remedy as a means of
.obtaining without delay the inronnation referred to in article 18, paragraph 1. This
right to a remedy may not be suspended or restricted in any circumstances.
ArtJcle 21
. Each State party shall take the necessary measures to ensure that persons
deprived ofliberty are released in a manner pennitting reliable verification that they
have actually been released. Each State Party shall also take the necessary measures
to assure the physical integrity of such persons and their ability to exercise fully their
rights at the time of retease, without prejUdice to any obligations to which such
persons may be subject under nationa,llaw.
Article 22·

•
B5

Without prejudice to article 6, each State Party shall take the necessary
measures to prevent and impose sanctions for the following conduct:
(a)

Delaying or obstructing the remedies referred to in article 17,

paragraph 2 (t), and article 20, paragraph '2;
(b)

Failure to record the deprivation of liberty ofany person, or the

recording ofany infonnation which the official responsible for the official register
knew or should have known to be inaccurate;
(c)

Refusal to provide infonnation on the deprivation ofliberty ofa

person, or the provision of inaccurate infonnation, even though the legal requirements
for providing such infonnation have been met.

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UNCLASSIFIED
Article 23
I.

Each State Party shall ensure that the training of law enforcement personnel,

civil or military, medical personne~ public officials and other persons who may be
involved in the custody or treatment of any person deprived ofliberty includes the
necessary education and information regarding the relevant provisions of this
Convention, in order to:
(0)

Prevent the involvement ofsuch officials in enforced disappearances;

(b)

Emphasize the importance ofprevention and investigations in relation

to enforced disappearances;
(0)

Ensure that the urgent need to resolve cases ofenforced disappearance

is recognized.
2.

Each State PartY shall ensure that orders or instructions prescribing,

authorizing or encouraging enforced disappearance are prohibited. Each State PartY
shall guarantee that a person who refuses to obey such an order will not be punished.
3.

Each State PartY shall take the necessary measures to ensure that the persOns

referred to in paragraph I who have reason to belieVe that an enforced disappearance
has occurred or is planned report the matter to their superiors and, where necessary, to
the appropriate authorities or bodies vested with powers ofreview or remedy.
Article 24
1.

For the purposes ofthis Convention, "victim" means the disappeared person

and any individual who has suffered harm as the direct result of an enforced
disappearance.
2.

Each victim has the right to knOw the truth regarding the circumstances of the

enforced disappearance, the progress and results ofthe investigation and the fate of
the disappeared person. Each State Party shall take appropriate measures in this
regard.

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L0474

UNCLASSIFIED
3.

Each State Party shall take all appropriate measures to search for, locate and

.release disappeared persons and, in the event of death, to locate, respect and return
their remains.
4.

Each State Party shall ensure in its legal system that the victims of enforced

disappearance have the right to obtain reparation and prompt, fair and adequate
compensation.
5.

The right to obtain reparation referred ~o in paragraph 4 covers material and

moral damages and, where appropriate, other forms of reparation.such as:

6.

(0)

Restitution;

(b)

Rehabilitation;

(c)

Satisfaction, including restoration of dignity and reputation;

(Ii)

Guarantees ofnon-repetition.

Without prejudice to the obligatioll to cQntinue the irivestigationuntil the fate.

ofthe disappeared person has been clarified, each State Party shall take the
appropriate steps with regard to the legal situation of disappeared persons whose fate
has not been clarified and that oftheir relatives, in fields such as social welfare,
financial matters, family law and property rights.
7.

Each State Party shall guarantee the right to form and participate freely in

organizations and associations concerned with attempting to establish the
circun;tstances ofenforced disappearances and the fate of disappeared persons, and to'
assist victims ofenforced disappearance.
Article 25
I,

Each State Party shall take the necessary measures to prevent and punish

under its criminal law:
(0)

The wrongful removal ofchildren who are subjected to enforced

disappearance, children whose lather, mother or legal guardian is subjected to

UNCLASSIFIED
L0475

· UNCLASSIFIED
enforced disappearance or children born during the captivity of a mother subjected to ..
enforced disappearance; .
(b)

. The falsification, concealment or destruction of documents attesting to '

the true identity ofthe children referred to in subparagraph (a)..
2.

Each State Party shall take the necessary measures to search for and identitY

the children referred to in paragraph I (a) and to return them to their families of
origin, in accordance with legal procedures and applicable international agreements.
3.

States Parties shall assist one another in searching for, identifYing and locating

the children referred to in paragraph I (a).
4.

Given the need to protect the best interests ofthe children referred to in

paragraph I (a) and their right to preserve, or to have re-established, their identity"
including their nationalitY, name and family relations as recognized by law, States
Parties which recognize a system ofadoption or other form of placement of children
shall have legal procedures in place to review'the adoption or placement procedure,
and, where appropriate, to annul any adoption or placement ofchildren that originated
in an enforced disappearance.
5.

In all cases, and in particular in all matters relating to this article, the beSt

interests ofthe child shalllxi a primary consideration, and a child who is capable of
forming his or her own views shall have the right to express those views freely, the
views of the child being given due weight in accordance with the age and maturity of
the child..
PARTll
Article 26

I.

A Committee on Enforced Disappearances (hereafter referred to as "the

Committee'') shall be established to carry out the functions provided for under this
Convention. The Conimittee shall consist of 10 experts ofhigh moral character and
recognized competence in the field of human rights, who shall serVe ip their personal
capacity and be independent and impartial. The members ofthe Committee shall be
elected by the States Parties according to equitable geographical distribution. Due ,

UNCLASSIFIED
L0476

UNCLASSIFIED
account shall be taken ofthe usefulness of participation in the work of the Committee
by persons having relevant legal experience and to balanced gender representation.
2.

The members of the Committee shall be elected by secret ballot from a list of

persons nominated by the States Parties from among their nationals, at biennial
meetings of States Parties convened by the Secretary-General of the United Nations
for this purpose. At those meetings, for which two thirds ofthe States Parties shall
constitute a quorum; the persons elected to the Committee shall be those who obtain
the .largest number ofvotes and an absolute majority ofvotes ofthe representatives of
States Parties present and voting.
3.

The initial election shall be held no'later than six months after the date of entry

into force of this Convention. Four months before the date ofeach election, the
Secretary-General ofthe United Nations shall address a letter to the States Parties
inviting them to submit nominations within three months. The Secretary-General
shall.prepare a list in alphabetical order ofall persons thus nominated, indicating the
State Party which nominated each candidate, and shall submit this list to all
States Parties,
4.

The members ofthe Committee shall be elected for a term of four years. They

shall be eligible for re-election once. However, the term of five of the members
elected at the first election shall expire at the end of two years; immediately after the
first election, the names ofthese five members shall be chosen by lot by the chairman
ofthe meeting referred to in paragraph 2 ofthis article.
5.'

If a member ofthe Committee dies or re.signs or for any other reason can no

longer perform his or her committee duties, the State party which nominated him or
her shall, in accordance with the criteria set out in paragraph I of this article, appoint
another candidate from among its nationals to serve out his or her term, subject to the
approval of the majority ofthe States Parties. Such approval shall be considered to
have been obtained unless half or more ofthe States Parties respond negatively within
six weeks of having been informed by the Secretary-General ofthe United Nations of
.

.

the proposed appointment
6.

The Committee shall establish its own rules ofprocedure.

UNCLASSIFIED
L0477

. UNCLASSIFIED
7.

The Secretary-Oeneral ofthe United Nations shall provide the Committee with

the necessary means, staff and facilities for the effective performance of its functions.
The Secretary"General ofthe United Nations shall convene the initial meeting of the
Committee.

8.

The members ofthe Committee shall be entitled to the facilities, privileges

and immunitiesof experts on mission for the United Nations. as laid down in the
relevant sections ofthe Convention on the Privileges and Immunities ofthe United
.,

Nations.

9.

Each.State Party shall cooperate with the Committee and assist its members in

the fulfilment oftheir mandate, to the extent of the Committee's functions that the
State Party has accepted
Article 27
A Conference of States Parties will take place at the earliest four years and at
the latest six years following tbe entry into force of this Convention to evaluate the
functioning ofthe Committee and to decide; in accordance with the procedure
described in article 44, paragraph 2, whether it is appropriate to transfer to another
body· without excluding any possibilio/· th~ monitoring ofthis Convention, in
.accordance with the functions defmed in articles 28 to 36.
ArtIcle 28
I;

In the framework ofthe competencies granted by this Convention, the

Committee shall cooperate with all relevant organs. offices and specialized agencies
and funds ofthe United Nations. with the treaty bodies instituted by international
instruments, with the special procedures ofthe United Nations and with the relevant
regional intergovernmental organizations or bodies, as well as with all relevant State
institutions, agencies or offices working toward the protection ofall persons against
enforced disappearances.
2.

As it discharges its mandate, the Committee shall consult other treaty bodies

instituted by relevant international human rights instruments, in particular the Human
Rights Committee instituted by the· International Covenant on Civil and Political

UNCLASSIFIED
L0478

UNCLASSIFIED
Rights, with a view to ensuring the consistency oftheir respective observations and
recommendations.
Article 29
I.

Each State Party shall submit to the Committee, through the Secretary-General

of the United Nations, a report on the measures taken to give effect to its obligations
under this Convention, within two years after the'entry into force of this Convention
for the State Party concerned.

2.

The Secretary-General of the United Nations shall make this report available

to all States Parties.
3.

Each report shall be considered by the Committee, which shall issue such

comments, observations or recommendations as it may deem appropriate. The
comments, observations or recommendations shall be communicated to the State
Party concerned, which may respond to them, «;In its own initiative or at the request of
the Committee.

4.

The Committee may also request States Parties to provide additional

information on the implementation ofthis Convention.
Article 30
I.

A request that a disappeared person should be sought and found may be

suhmitted to the Committee, as a matter ofurgency, by relatives of the disappeared
person or their legal representatives, their counselor any person authorized by them,
as well as by any other person having a legitimate·interest.
2.

Ifthe Committee considers that a request for urgent action submitted in

pursuance of paragraph I:
(0)

Is not manifestly unfounded;

(b)

Does notconstitute an abuse ofthe right of submission ofsuch

requests;

UNCLASSIFIED
L0479

"UNCLASSIFIED
(c)

Has already been duly presented to the competent bodies ofthe State

party concerned, such as those authorized to undertake investigations, where such a
possibility exists;
(d)

Is not incompatible with the provisions of this Convention; and

(e)

The same matter is not being examined under another procedure of

international investigation or settlement ofthe same nature;
it shall request the State party concerned to provide it with information on the
situation ofthe persons sought, within a time limit set by the Committee.
3.

In the Iight.ofthe information provided by the State Party concerned in

accordance with paragraph 2, the Committee may transmit recommendations to the
State Party, including a requeSt that the State Parly should take all the necessary
measures, including interim measures, to locate and protect the person concerned in
accordance with this Convention and to inform the Committee, within a specified
period of time, ofmeasures taken, taking .into account the urgency of the situation.
The Committee shall inform the person submitting the urgent action request of its
"recommendations and ofthe information provided to it by the State as it becomes
available.
4.

The committee shall continue its efforts to work with the State party

concerned for as long as the fate of the person sought remains unresolved. The person
presenting the request shall be kept informed.
Article 31
1.

A State Party may at the time of ratification oHhis Convention or at any time

afterwards declare that it recognizes the competence of the Committee to receive and
consider communications from or on behalfofindividuals subject to itsjurisdiction
claiming to be victims ofa violation by this State Party of provisions of this
Convention. The Committee shall not admit any communication concerning a" State
Party which has not made such a declaration.
2.

The Committee shall consider a communication inadmissible where:

UNCLASSIFIED
L0480

UNCLASSIFIED
(0)

The communication is anonymous;

(b)

The communication constitutes an abuse of the right ofsubmission of

such communications or is incompatible with the provisions of this Convention;
(c)

The same matter is being examined under another procedure of

international investigation or settlement ofthe same nature; or where
(d)

All effective available domestic remedies have not been exhausted.

This rule shall not apply where the application ofthe remedies is unreasonably
prolonged.
3.

. If the Committee considers that the communication riteets the requirements set

out in paragraph 2, it shall transmit the communication to the State Party concerned,
requesting it to provide observations and comments within a time limit set by the
Committee.
4.

At any time after the receipt of a communication and before a determination

on the merits has been reached, the Committee may transmit to the State Party
concerned for its urgent consideration a request that the State Party will take such
interim measures as may be necessary to avoid possible irreparable damage to the
victims of the alleged violation. Where the Conunittee exercises its discretion, this
does not imply a determination on admissibility or on the merits ofthe
communication.
5.

The Committee shall hold closed meetings when examining communications

.under the present article. It shall inform the author ofa communication ofthe
responses provided by the State Party concerned. When the Committee decides to
terminate the procedure, it shall communicate its views to the State Party and to the
author ofthe communication.
Article 32
A State Party to this Convention may at any time declare that it recognizes the
competence ofthe Committee to receive and consider communications in which a
State Party claims that another State Party is not fulfilling its obligations under this
Convention. The Committee shall not r·eceive communications concerning a State

UNCLASSIFIED
L0481

UNCLASSIFIED

.

party which has not made such a declaration, nor communications from a State Party
which has not made such a declaration.
Article 33
l.

If the Committee receives liable information indicating that a State party is

seriously violating the provisions ofthis Convention, it may, after consultation with
the State party concerned, request one or more of its members to undertake a visit and
report back to it without delay.
2.

The Committee shall notify the State Party concerned, in writing, ofits "

intention to organize a visit, indicating the composition ofthe delegation and the
purpose ofthe visit The State Party shall answer the Committee within a reasonable
time.
3.

Upon a substantiated request by the"State Party, the Committee may decide to

postpone or cancel its visit.
4.

Ifthe State party agrees to the visit, the Committee and the State Party

concerned shall work together to define the modalities ofthe visit and the State Party
shall provide the Committee with all the facilities needed for the successful
completion ofthe visit
5.

Following its visit, the Committee shall communicate to the State Party

concerned its observations and recommendations.
Article 34
Ifthe Committee receives information which appears to it to contain wellfounded indications that enforced disappearance is being practised on a widespread or
systematic basis in "the territory under the jurisdiction of a State Party, it may, "after
seeking from the State Party concerned all relevant information on the situation,
urgently bring the matter to the attention of the General Assembly of the United
Nations, throujlh the Secretary-General ofthe United Nations.

UNCLASSIFIED
L0482

UNCLASSIFIED
Article 35

1. .

The Committee shall have competence solely in respect ofenforced

disappearances which commenced after the entry into foree ofthis Convention.
2.

If a State becomes a party to this Convention after its entry into force, the

obligations ofthat State vis-a-vis the Committee shall relate only to enforced
disappearances which commenced after the entry into foree ofthis Convention for the
State concerned.
Article 36
1.

The Committee shall submit an armual report on its activities under this

Convention to the States Parties and to the General Assembly ofthe United Nations.
2.

Before an observation on a 1itate party is published in the annual report, the

State party concerned shall be informed in advance and shall be given reasonable time
to answer.

This State Party may request the publication of its comments or

observations in the report.
PART ill
Article 37

Nothing in this Convention shall affect any provisions which are more
conducive to the protection of all persons from enforc~d disappearance and which
may be contained in:
(a)

The law of a State Party;

(b)

International law in force for that State.
Article 38

1.

This Convention is open for signature by all Member States ofthe United

Nations.

UNCLASSIFIED
L0483

UNCLASSIFIED
2.

This Convention is subject to ratification by all Member States of the United

Nations. Instruments of ratification shall be deposited with the Secretary-General of
the United Nations.
3.

This Convention is open to accession by all Member States ofthe United

Nations. Accession shall be effected by the deposit of an instrument ofaccession
with the Secretary-General ofthe United Nations.
Article 39

I.

This Convention shall enter into force on the thirtieth day after the date of

deposit with the Secretary-General ofthe United Nations ofthe twentieth instrument
of ratification or accession.
2.

For each state ratifying or acceding to this Convention after the deposit ofthe

twentieth instrument of ratification or accession, this Convention shall enter into force
on the thirtieth day after the date ofthe deposit ofthat State's instrument of
ratification or accession.
Article 40

The Secretary-General of the United Nations shall notify all States Members
ofthe United Nations and all States which have signed or acceded to this Convention
of the following:
(a)

Signatures, ratifications and accessions under article 38;

(b)

The date of entry into force of this Convention under article 39.
Article 41

The provisions ofthis Convention shall apply to all parts of federal States
without any limitations or exceptions.
Article 42

I.

Any dispute between two or more States Parties concerning the interpretation

or application ofthis Convention which cannot be settled through negotiation or by
the procedures expressly provided for in this Convention shall, at the request of one of

.UNCLASSIFIED
L0484

·UNCLASSIFIED
them, be submitted to arbitration. Ifwithin six months from the date ofthe request for
arbitration the Parties are unable to agree on the organization ofthe arbitration, any
one ofthose Parties may refer the dispute to the International Court ofJustice by
request in conformity with the Statute of the Court.
2.

A State may, at the time ofsignature or ratification of this Convention or

accession thereto, declare that it does not consider itself bound by paragraph I ofthis
article. The other States Parties shall not be bound by paragraph I ofthis article with
respect to any State Party having made such a declaration.
3.

Any State Party having made a declaration in accordance with the provisions

of paragraph 2 ofthis article may at any time withdraw this declaration by notification
to the Secretary-Genera1 ofthe United Nations.
Article 43
This Convention is without prejudice to the provisions of international

~5

humanitarian law, including the obligations ofthe' High Contracting Parties to the foUl
Geneva Conventions of 12 August 1949 and the two Additional Protocols thereto of
1977, or to the opportunity available to any State Party to authorize the International
Committee ofthe Red Cross to visit places ofdetention in situations not covered by
international humanitarian law.
Article 44
1.

Any State Party to this Convention may propose an amendment and file it with

the Secretary-General ofthe United Nations. The Secretary~General shall thereupon
communicate the proposed amendment to the States Parties to this Convention with a
request that they indicate whether they favour a conference ofStates Parties for the
purpose ofconsidering and voting upon the proposaL In the event that within four
months from the date ofsuch communication at least one third ofthe States Parties
favour such a conference, the SeCretary-General shall convene the cpnference under
the auspices of the United Nations.

UNCLASSIFIED
L0485

UNCLASSIFIED
2.

Any amendment adopted by a majority oftwo thirds ofthe States Parties

present and voting at the conference shall be submitted by the Secretary-<3eneral of
the United Nations to all the States Parties for acceptance.
3.

An amendment adopted ,in accordance with paragraph I ofthis article shall

enter into force when two thirds of the States Parties to this Convention have accepted
it in accordance with their respective constitutional procedures.
4.

When amendments enter into force, they shall be binding on those States

Parties which have accepted them, other States Parties still being bound by the
;

provisions ofthis Convention and any earlier amendment which they have accepted.
Article 4S
I.

This Convention, ofwhich the Arabic, Chinese, English, French, Russian and

Spanish texts are equally authentic, shall be deposited with the Secretary-General of
the United Nations.
2.

The Secretary-General ofthe United Nations shall transmit certified copies of

this Convention to all States referred to in article 38.

UNCLASSIFIED
L0486

UNCLASSIFImpetd\£)I'\.et-l

".

-fO",

",

f0

..J6,B

REf.E ASED IN

I

{jVS

'~k
PA~
V'I

" The draft International Convention oJ32he Protection
of all Persons against Enforced Disappearances would
prohibit secret detention and establish a non~~~I
derogable right not to be subject to an enforced
disappearance.
.
• It is likely to be adopted by consensus by the 47
members of the Human Rights Council this Thursd~y.
~ The Council will transfer the instrument to the Unite~
Nations General Assembly for final adoption at its
upcoming 61 st session this Fall.
" Following adoption, the instrument will be open for
signature by States at a signing ceremony to be held
,in Paris.
• A binding instrument on disappearances, if it enters
into force, would follow on related provisions in the
International Covenant·on Civil' and Political Rights
(to which the United States is a party) and on the
non-binding Declaration on the Protection of all
Persons against Enforced Disappearances, which was
adopted by the UNGA in 1992.
• The proposed convention is the product of five formal
negotiating sessions at the Commission on Human Rights
beginning January 2003 which chaired by the French
Ambassador in Geneva Amb. Kessadjian.
"The Chair of the treaty negotiations exhibited
enormous dedication, skill and industriousness
throughout the negotiations, which were conducted in
an atmosphere of collegiality and respect.
" The Latin and ED countries' provided strong support for
the initiative.
• The United States and many other States were active
throughout the negotiations including Japan, Russia,
China, Angola, Algeria, India, Pakistan, Canada and
New Zealand.
• Non-governmental organizations and families of the
disappeared were extremely engaged throughout the
negotiations, bearing witness to the crime and
strongly shaping the instrument.
• At the same time the United States regrets that the
... ~egotiaeiQns

oj"

not result ~n a consensus instrument.

" The United States:has expressed its views on. the draft
instrument in various documents made publicly
available inclUding its Written Statement at the HRC
(on the Mission Geneva website), a compendium of
textual changes proposed to the instrument during the
course of the negotiations (on the mission ,Geneva

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCillE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

UNCLASSIFIED
L0487

-~

.....

I.!

....

--'

...

UNCLASSIFIED

.website) and in the Closing Statement of'the United
States delivered at the conclusion of negotiations in
October 2005 (reproduc~d at pages 48-49 of the ,
official UN Report on the Fifth Negotiating Session).
[John, you have been provided will all these
documents.)
• The United States is not a member of the HRC, and we
take no position on adoption of the instrument by the
council.
• We will take a position on adoption when the draft
convention is cons~dered by the tJNGA tllis fall.
• ~ do not know what our position will be at'the UNGA,
as it will, be subject to an inter-agency review
process,
• Our legal concerns include an imprecise definition and
the inclusion of several criminal law provisions that
would be difficult 'to implement in a federal system
such as our own.
• Our legal concerns include the following:
,-----------,
0
The absence of an express requirement for
intentionality in the definition.
(States
interpret the definition to include an implicit
intent requirement, as do we.)
o The failure to use an existing treaty body for
monitoring functions.
o An' apparent requirement 'to. enact an autonomous
.crime of enforced disappearance (which would be
difficult in a State like the United States with
51 criminal jurisdictions).
o A statute of limitations provision that is not,
workable in a federal system.
J
0
A non-refoulement provision that is at odds with
!~
principles of non-refoulement found in the
Refugee Convention and Convention against
Torture.
The draft convention will enter into force upon
ratification by twenty States.
Were. the United States to become a party, the
Convention would not provide the rules governing ,
United States policies in the war against Al Qaida, as
Article 43 of the Convention contains an express
international humanitarian law savings clause.
Under Article 4~, IHL would provide the rules
governing the war against Al Qaida and would remain
the lex specialis in situations of armed conflict and
other situations where IHL applies.

B5

UNCLASSIFIED
L0488

UNCLASSIFIED

RELEASED IN PARl' A: 2. 3B6
L-

The United States appreciates the opportunity to address the Human
Rights Council on the Draft Convention for the Protection of all Persons ,from
Enforced Disappearance.

We thank the Chair of the Working Group and all

participants in the Working Group for focusing attention on this serious human
rights violation, although we 'express disappointment that the draft text of the'
Convention, albeit significantly improved from earlier drafts, does not'represent the
consensus of all members of the Working Group. The United States has been an
active participant in the Working Group in each session, and given our steady
participation, we are providing our nnderstanding of the intent of States that
participated in the Working Group on a number of core' issues. We will provide
further, detailed interpretations when this document comes up for consideration at
the UN General Assembly.

We reaffirm and incorporate herein our Closing

Statement at the final session of the Working Group, reproduced at pages 48·49 of
the Working Group Report of the Fifth Session (E/CN.4/2006/57) ("Report").
We underscoreatthe outset our view, shared by other delegations, that the
definition of the crime (Article 2) would have been mueh improved had it been more
precise and' included an explicit requirement for intentionality, particularly the
specific intent to place a person outside the protection of the law. The need for
intentionality was recogniZed by the Chair and recorded in paragraph 96 of the,
Report, which states that an intentionality requirement is implicit in the definition
of enforced disappearance, recognizing that "in no penal system was there an ,
offense of enforced disappearance without intent."

We agree aud reaffirm our

understanding that under the Convention mens rea is an essential ingredient of the

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
, ,DATE/CASE ID: 18 AUG 2009 200706444

UNCLASSIFIED
L0489

UNCLASSIFIED
crime under Articles 2, 4, 6 (particularly Article 6(2», ·12(4), 22, 25, &

other

articles.
Second the United States expresses its intent to interpret the Right to Truth
in the preamble and in Article 24(2) consistent with the Commission on Human
Rights Resolution on the Right to Truth (2005/66), which states that the right may
be recognized in various legal systems (such as our own) as freedom of information,
the right to know, or the right to be informed, and also consistent with the
International Covenant on Civil and Political Rights which speaks to the right to
seek, receive and impart information. As noted in our Explanation of Position
delivered upon adoption of UNCHR resolution 2005166, the United States' position

,.

on the right to know has not changed since the ICRC Conference on the Missing in
February 2003 as well as at the 28 th ICRClRed Cross Conference in December 2003;
that is, the United Stlltes is committed to. advancing the cause of families dealing
with the problem Of missing persons; however, we do not acknowledge any new
international right or obligation in this regard. For the United States, whicb is not a
party to the 1977 Additional Protocol I to the Geneva Conventions and has no
obligations vis-a-vis any "right to truth" under Article 32 of that instrument,
families are informed of the fatc of their missing family members based on the
longstanding policy of the United States and not bec.ause of Article 32.
Third, the United States wishes to place on. record our understanding of
Article 43 of the draft Convention. We understand this provision to confirm that the
provisions of the law of armed conflict, also called international humanitarian law,
remain the lex speciaUs in situations of armed conflict and other situations to which

UNCLASSIFIED
L0490

UNCLASSIFIED
international humanitarian law applies. The United States understands Article 43
to operate as a "savings clause" in order to ensure that the relevant provisions of
international humanitarian law take' precedence over any other provisions
contained in this Convention.
Fourth, the United States continues to support the use of an existing treaty
body to perform monitoring functions, that is, the Human Rights Committee, which
currently deals with forced disappearances, in view ofthe Committee's expertise; in
the interests of consistency of jurisprudence, efficiency, avoidance of redundancy,
and cost; and in light of the ongoing proposals for treaty body ref9rm. We would
hope that, per Article 27 of the draft Convention, States Parties adopt in the fnture
use of the Human Rights Committee as the monitoring body..
In addition to the points expressed above, we place on the record our
reservations, many of which are noted in the Report and in our Closing Statement,
to, inter alia, the following articles, which is an illustrative (not exhaustive) list:
~

Article 4 on crimiitalization should not be read to require various domestic
legal systems to enact an autonomous offense of enforced disappearance,
which is unnecessary and, from a 'practical standpoint, unworkable in, for
example, a federal system such as our own.

~

Article 5 requiring criminalization of crimes against humanity is vague,
aspirational in nature, and inappropriate as an operative treaty provision.
,

The United States agrees with the statement in paragraph 106 of the Report
that Article 5 would "not create any additional obligations on States to
accede to particular instruments or amend their domestic legislation."

UNCLASSIFIED
L0491

UNCLASSIFIED

»

Article 6(2) on the unavailability of a defense of obedience to superior orders
in a prosecution related to enforced disappearance could under certain
circumstances be inconsistent with due process guarantees and could subject
unwitting government personnel to the possibility of prosecution for actions
that they did not and could not know were prohibited. Therefore, as stated in
paragraph 109 of the Report,· the United States interprets Article 6(2) to
establish no criminal responsibility on the part of an individual unaware of
participating in the commission of an enforced disappearance.

»

Article 8 on statute of limitations presents problems of implementation in a
federal system and contains unclear text in paragraph 2..

»

Article 9(2) on "found in" jurisdiction remains unacceptable to the United
States, especially in view of the lack of precision in the definition of enforced
disappearance•

.»

Article 16 on non-refou!ement, which refers to violations of international
humanitarian law in the country of return, does not conform to international
prinCiples on 1IOn-refou!ement, as articulated in the 1951 Refugee
Convention.

»

Article 17 on standards for and access to places of detention retains the
possibility of conflict with constitutional and other legal provisions in the
laws of som·e States; accordingly we would interpret the term "any persons
with a legitimate interest" in Articles 17, 18, and 30 in accordance with the
domestic law of a State.

UNCLASSIFIED
L0492

UNCLASSIFIED
'.

-

>-

Article 18 on access to information similarly retains the possibility of conflict
with constitutional and other legal provisions of, a State and sets
unreasonable standards guaranteeing information,

>-

Article 22 on additional criminalization, among other concerns, should
contain an express intentionality requirement, and the United States will
interpret it to contain such an intent requirement (as noted above).

>-

Article 24 on 'the right to the truth and reparation contains text that is vague
and at the same time overly specific, employs an overbroad definition' of a
"victim," and may not be consistent with a common law system for granting
remedies and compensation.

>-

Article 25 on children must be interpreted consistent with adoption laws and
other relevant domestic laws and with international obligations of the State
regarding children.
The United States respectfully requests that its views be made a part of the

official record oftheHuman Rights -Council.

,UNCLASSIFIED
L0493

UNCLASSIFIED
Drafted: LIHRR - Gilda Brancato 6/8106

x 72773

doc 26432

Cleared: Mission GencvalL - Jeff Kovar
Mission GenevalPSC - Jan Levin
LIHRR - Bob Harris (subs) - ok
LIPM - Vijay Padmanabhan - ok
LILEI - Denise Manning· ok
10 - Mark Lagon· ok
10IRHS - Torn Johnson· ok
DRL/MLA - Lynn Sicade • ok
SIWCI - Sam Witten (subs) - ok
DOJIOLP - Larry Rothenberg - ok

INSC/Legal

IIlm Vas - ok

~ok

B6

UNCLASSIFIED
L0494

UNCLASSIFIED

RELEASED IN PART
B6
£-433

"

Schou, Nina E
From:
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~uo!.tli~a;;:nn,a en es; Julieta Noyes; Baroukh, Nader;

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RE: Need quick clearance on documents tomorrow,

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LEGAL-#24782-v1-Lowenkron_Opening_Statement_-_4_26_draft.doc; LEGAL-#24607-v1revised_CAT_press_guidance_4_20.doc; LEGAL-#24887-v1CAT_Qs_and_As_to_send_to_Geneva.pdf

Attachments:

..
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. ,:=

=s

LEGAL-#24782-vI-LEGAL-#24607-YI-r

Lowenkron_Open." evlsed_CAT_pr..,

Dear Interagency Group,
This morning a sleepy State Department team sent to Geneva the U.S, answers to the Qs and As from the Committee
Against Torture.

~

LEGAL-#24BB7-YI-

CAT_Qs_and..As_".

Many thanks to the interagency team for giving us your final edits and continuing to improve the document. When we
leave for Geneva early Tuesday afternoon, we will need to have completed the Lowenkron statement and the press
gUidance I sent on Wednesday (attached again at the top of this message) and also John Bellinger's opening statement
and the speaking text of our Qs and As (which are much shorter that the longer package and will be drawn from preViously
cleared language.) With respect to the speaking answers, we obviOUSly couldn't complete work on them until our longer Q
and A package went out today. I hope to get both of those documents to agencies over the weekend.
Thanks again, and see you on Monday here at State (room 6417),
Bob
From:
sent:
To:

Hams, Robert K
Wednesday, April 26, 2006 11:4S AM

,r-----------......-,Icamponov~, Christopher N.; L

RM,n n f(pilih;(Brian.Kellihe~.a>dhs.aovll

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I~urence."ou,

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pUllanna Bentes; Julieta Noyes; Baroukh, NaderJ
"'Th"'o=m"'as"'.M"-on=he::'1im=@"'1il"'usa"'cO"'JJ.g:ov;Schou,NinaE; Hili, Steven R; DDJ:BrentMaiitilSl1@lUSiJoj.gov

Cc:
Subject,

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--.Jr--I

Need quIck clearance on documents tomorrow.

« File: LEGAL-#24782-v1-Lowenl<ron_Opening_Statement_-_4_26_dratt.doc »
.

.

«

File: LEGAL-#24607-v1-revised_CAT"pressJjuidance_4_20.doc»

Larry, Bryan Chris and Brian,
Attached for DHS, DOD, NSC, and DOJ clearance is Barry Lowenkron's opening statement and State Department press
guidance. The latter is closely modeled on preViously cleared language when we rolled out the CAT report last May.
UNITED STATES l)EPARTMENTOF STATE
1
.REVIEW AUTHORITY: JOlIN S BLODGETT
DATE/CASE ID: IS AUG 2009 200706444

UNCLASSIFIED

L0495

.......

UNCLASSIFIED

Forgive the quick turn around, but we would appreciate your clearance by COB Friday.
Still to come are John Bellinger's opening statement and the speaking version of our Os and As. As I noted, we won't be
in a position to circulate that until we finish the Os and As, (for which we still await DOD and DOJ final clearance).
Thanks
Bob Harris

2

UNCLASSIFIED
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RELEASED IN PART
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Schou, Nina E

Harris, Robert K
Friday, May 12, 20064:44 AM
Kovar, Jeffrey D; Noyes, JUlieta V (DRL)
Legal-L-HRR; Legal-L-PM; Hodgkinson, Sandra L; Bettauer, Ronald J; Bellinger, John
B(Legal); Johnson, Thomas A; Lagon, Mark P;I
Re: Question 1;

From:

Sent:
To:

Cc:

I

Subject:

:86

Thanks. If you could ask Hanny to send'us a PDF and a Word version of the package, that
would be great.
Bob
-----Original Message----From: Kovar, Jeffrey D(Geneva) <KovarJD@state.gov>
To: Harris, Robert K <HarrisRK2@state.gov>i Kelliher, Brian <Brian.Kelliherl@dhs.gov>;
ron.rosenberg@dhs.gov <ron.rosenberg@dhs.gov>; Laurence.Rothenberg@usdoj.gov
<Laurence.Rothenber @usdo'. ov>' No es Julieta V DRL <No esJV@state. OV>

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rent. c ntos us oJ.gov
us oJ.gov <Thomas.Monheim@usdoj.gov>;

<Brent.Mclntos us oJ.gov>; T ornas.Mon e~m
Timofeyev, Igor <Igor.Timofeyev@dhs.gov>: Legal-L-HRR <Legal-L-HRR@state.gov>: Legal-L-PM
<Legal-L-PMSBU@state.gov>;·Hodgkinson, Sandra L <HodgkinsonSL@state.gov>: Bettauer, Ronald
J <BettauerRJ@state.gov>: Bellinger, John BILegal) <BellingerJB@state.gov>; Johnson,
Thomas A <JohnsonTA2@state.gov>; Lagon, Mark P <LagonMP@state.gov>;1

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lSerit: Erl May 12 U4:J4:33 2006
Subject: RE: Question 1:
We will deliver this attachment with a Mission cover letter today.
later, let us know.

If you have more

-----Original Message----From: Harris, Robert K
Sent: Thursday, May 11, 2006 11:30 PM
To: Kelliher, Brian; 'ron.rosenberg@dhs.gov ' ; Laurence.Rothenberg@usdoj.gov; Kovar,
Jeffre D; No es Julieta V (DRL)
r------------IUV=l3l"'"lTt:':1'fC'TlTCmmrmlU1J]':-g'OViT!1rmt"'"';:"l'J'01ITlTeTrrl@usd.;j :g ov :
lmo eyev, gar: ega RR: Legal-L-PM; Hodgkinson, Sandra L; Bettauer, Ronald J:
Bellin:er John BILegal); Johnson, Thomas A; Lagon, Mark P: L/HRR:NinaSchou/home
ISUDJeC :

~Ue$L1011

JHarris,

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6

Robert K

Jeff,

As UN Secretariat Staff made clear in an e-mail message to me today, the Committee will
need to receive the U.S. follow-up answers tomorrow 'if our resnonses are to h;:mt:> ::IT''\\1
effect on the final conclusions and recommendations. I

---'lIt

L-

5

is time to

Thanks to all, particularly DOJ's Larry Rothenberg.
Bob

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

UNCLASSIFIED
L0497

/.

..

'

"

, UNCLASSIFIED

RELEASED IN PART
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LA¥/

:'l:3chou, Nina E
Bentes, Julianna W
Saturday, May 06, 20",0-"-6~8",:0",,2-,-A,,,M,-Sentes Julianna W' I

From:
Sent:
To:

....,
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'TobLLongwitz@usdoj.gov; ren. enos
us oJ.gov; wen kron , Barry F (DRL); Bellinger,
John B(Legal); Waxman, Matthew; Harris, Robert K;. Haines, Avril D; 'Mike.Davis@dhs.gov';
'Thomas.Monheim usdo·. ov'; 'ron.rosenberg@dhs.gov'; 'Brian.Kelliher1@dhs.gov';
La on Mark p. Hill Steven R; SChou,

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s.gov
Cc:
Subject:
committee report.doc

Attachments:

The Committee has uploaded its report of Friday's session to the OHCHR website (under press releases in the CAT
section). An 'electronic copy is provided below.

committee

report.doc (63 KB)
From:

sent:
To:

Bentes, Julianna W
saturday, May 06, 2006 12:56 PM
lia aW'

I

I

B6
B6
B6
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Co:
SUbject:

1st floor conference room.
From:

Bentes, Jullanna W

sent:

;:sa~tu~rd~a=y~,~M;aY~0~6~,~2[00:6=1:2~:3=3:P~M~;:::::;:::::;:J I
p

To:

I

michael.edney@usdoJ.gov'; 'Tobi.Longwilz@usdoJ.gov·; 'Brent.MclntOSh@usdoj.gov'; Lowenkron,
i>Ba;;rry;;;<F"1('nD;>RL")"';;S:Be~II"'ln;;;g;;:er"', "'o"'n"""rr::al); Waxman, Matthew; Harris, Robert K; Haines, Avril D;' 'Mike.Davis@dhs.gov';
'Th~mas.Monheim@UsdOj'90v'; 'ron.rosenberg@dhs.gov'; 'Brlan.Keliiherl@dhs.gOv'4
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. 4 ' g o n , Mark P; Hm, 5teven R; SChou, Nina E; Noyes, JUlieta V (0 l); HOdgkinson, san~ra L;
_
Jjohn.tolTes@dhs.90v'; 'brian.dixon@dhs.gov'; 'michael.davis2@dhs.gov'
Ct:
SUbject:

10 -501616, AiIUJe

.

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Pizza Info

Hello everybody"- Pizza will cost 15 sfr per person -- please have your money ready for Jana by 1 pm.
Thanksl
Also, just in case, 'this is the address you should send your paragraphs to, with cc's to the other DoS folks.
From:

sent,
To:

Bentes, Jullanna W
Frlday, May 05, 20068:31 PM

~~w~~';I;::C===~m;lc;h;ae;l.;ed~n;:]et@usaoJ.gOV;

I ODI.LOngwltZ@UsdOj.gov, tilel iCiOiCIIlWSi IIWLsdOj,90V'; Lowenkron,
ny
;
,
egal); Waxman, Matthew; Harris, Robert K; Haines, Avril D' 'Mike.DaviS@dhs.gov';
'Thomas Monbeim@!'Sdoi,qo~; 'ron.rosenberg@dhs,gov'; 'Brian.Kelliherl@dhs.gov';l
L
I'
fagon, Mark P; Hill, Steven R; SC~~U'. ~ina E; Noyes, Juli~ta V(ORt), HOOgRIlISUil, sJndra L;

I

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE!D: 18 AUG 2009 200706444

1 -'.'

B6
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UNCLASSIFIED
L0498

UNCLASSIFIED'
I
Ce:
'subject:

l'jOhn.torres@dh5.90V1; 'brlan.dixon@dhs.gov'; 'mlchael,davls2@dhs.gov'

I uY~SUrena, Anare
The questions as of evening 5!5/06

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« File: May 5 list of CAT Committee Questions3.doc »
See you in the morning!
From:

sent:
To:

Subject:

Bentes, Jullanna W
Friday, .May 05,20095'31 pM
Julianna W· t

1
'michael.edney@usdoj.9~v'i 'Tobi.LOngwltZ@usdo).gov; Bren't.McHltbsli@Usboj.gov'; Lowenkron,

L ; Be inger, 0 n Legal); Waxman, Matthew; Harrls, Robert K; Haines) Avril D~Mike.Davls@dhs.90v';
Thomas.Monhelm@usdoj,gov'; 'ron.rosenberg@dhs.gov'; 'Brian.Kelliherl@dhs.gov'; .~
~
1
I
Ilagon, Mark P; Hill, Steven R; Schou, Nina E; Noyes, Juli ra v (0 ), MoogKlI15Ui" sdndra l.i
[
l'john,torres@dhS.9ov'; 'brlan.dlxon@dhs.gov'; 'michael.davis2@dhs.gov'
Meeting time tomorrow

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Heilo everybDdy,
Just a reminder that the meeting time tomorrow is 9:30 AM in the first floor conference. room. And if you haven't told me of
your menu selection for Monday yet, please email me immediately.
Thanks!
-julianna

2

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IRELEASED IN PART
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"

;

}.

Page 1 of3

LAt..f.3

Schou, Nina E
From:

Bentes, Julianna W

Sent:

Thursday, July 06, 2006 10:50 AM
Bentes Julianna Wc-------------------,

To:

Mark
r=-n.:.I:Iill-St.ellfllJiLsicllilli...Nnii1fE;;T'lOye~lUlleta"'iT(UR:l:'h'FlOagFm'iS:on;-saJiOi'lIT~··agon,
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ohn.torres dhs. ov" 'b ian.dixon@dhs.gov';
'Bradley.Saull@usdoj.gov'; "; 'Brasure,
~WS:Jj:uJiiaiiiiCiiiili:~iOOo[1.9lco'"lv''::';. 'fcro)Eb~.wexler@ed .gov'; 'Abdoo, Mark A
'Whitney, Ronald W; 'Landau, David A'; 'Ellis, Kathryn'
Cc:

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RL); Staten, Vernell; Hata,

I

Subject:

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B6,
B6
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RE: Os and As for clearance

Attachments: Qs_andJ,s_-_July-7.doc
Hello ICCPR Delegation and Washington POCsAttached for final interagency clearance are the Os and As. Your clearance is, as Bob Harris mentions
below, due Friday at 5 PM. As Bob also mentions, please remember that this is the hardest of our deadiines, as
we will be working very hard this weekend to create a final text to send to the Committee on Monday morning.
Thanks!
-julianna .

From: Harris, Robert K

sent: Tuesday, July 04, 2006 8:03 AM

I

To: 'camponovo, Christopher N.'; Schou, Nina E; ; ; ; ; ; ; ; ; ;
~ Johnson, Thomas A;
Lagon, Mark P; ; ; ; ; ; Noyes, Julieta V (DRL); ; ; ; ; ; ; 'Tobi.Longwltz@usdo).gov'; Kovar, Jeffrey D; Gale, T
Hann • Bellin er John B L al

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Dear ICCPR team,

I am sending you this message to prOVide you the revised schedule for getting all agency
clearances and inputs for materials related to our July 17-18 hearing before the Human Rights
Committee on U.S. implementation of the International Covenant on Civil and Political Rights.
Although our original schedule from May is attached to this document for your reference,
agencies should work from the revised schedule contained in this message.
To summarize, there are five major work products:

1lI26/2008

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

UNCLASSIFIED
L0500

UNCLASSIFIED

Page 2

on

• Answers to the Human Rights Committee's 25 questions: These must be submitted
in advance to the Committee and will serve as the opening U.S. oral presentation to the
Committee on both days of the hearing.
• Hard Os and As: As the Committee members can ask us about almost any issue
arguably related to this very broad human rights treaty, we have tried to anticipate as
many of these questions in advance. The answers the interagency team has
been preparing are for use by delegation spokespersons if those questions arise. These
are not provided to the Committee in advance, but are very important to ensure the
delegation is properly prepared to answer oral questions from Committee members.
• State Department Press Guidance: This will be used by the Department and Mission
Geneva to respond to questions from the press. Once made final, other agencies are
welcome to use it as they deem appropriate.
• Opening Statement(s): John Bellinger will make a 10-15 minute opening statement,
and Wan Kim is welcome to also make a short (5-10 minute) introduction about the role
of the Civil Rights Division and the Department of Justice generally in implementing U.S.
obligations under the Covenant and protecting human rights/civil rights within the United
States.
• Delegation Briefing Books: The briefing books produced for the Convention Against
Torture hearing proved to be so useful that we are repeating that exercise for the ICCPR
hearing. In addition to containing the work products described above, the books will
contain additional useful material (e.g., text of the instrument, text of U.S. reservations,
understandings and declarations, schedules, information about the members of the
Committee, information from the first U.S. session before the Committee in HRC in 1995,
etc.) We will provide a hard copy of the book to principals before they leave and will
otherwise circulate it electronically. Books will be available to all delegation members
when they arrive at our Mission in Geneva.

The Schedule:
With the exception of the Department of Justice (which is steady and industrious as
always), agencies have not come close to meeting the deadlines for submissions and
clearances set out in late May. State will absorb that as best we can, but must now be firm in
enforcing the remaining and revised deadlines. Here they are:

• Wednesday, July 5, a.m.: Agencies provide State with all overdue material for the
Os and As and hard Os and As. I can't overstress the importance of meeting this
deadline, as State cannot circulate professionally acceptable products for interagency
review without first receiving the necessary agency inputs. If agencies need to set
priorities, please send any comments or inputs for the Committee's 25 questions first. If
hard Q and A inputs arrive on Thursday, we can survive.
• Wednesday, July 5, COB: Agencies provide State with clearance to State press
guidance (cirCUlated previously).
• Thursday, July 6, a.m: State sends final 0 and A text for final interagency
clearance and, in some cases, inputs. (Note: the text will contain specific and urgent
final requests to DOJ, DHS and Interior and perhaps other agencies for additional
inputslwritten supplements to our answers, where our current text does not fully answer
the question posed or where there appears to be an internal contradiction or ambiguity in

11126/2008

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Page 3 of3

,

•
o

o

•
•

o

o
o

o

the draft USG answer. We have been selElctive in asking for this material, but where we
ask for it we will have judged that it is of critical importance for agencies to provide this
information.)
Friday, July 7, COB: State circulates for interagency comments and inputs .
proposed final text of hard Qs and As.
Friday, July 7, COB: Agencies provide State with final edits and clearance on Qs
and As. Note: This isa hard deadline. as the final text must be sent to the Committee
one week before the hearing, Julv 10.
Monday, July 10, a.m.: State sends to Geneva and the HRC the US answers to the
25 questions.
Monday, July 10, State circulates for interagency clearance the Bellinger opening
statement. (If Justice has opening remarks, they would also be circulated on that
date.)
Tuesday, July 11 (time and place to be determined): Final Washington meeting of
US delegation and Washington DC points of contact. (Note: As assistance from
Washington will be needed on Monday-Wednesday, July 17-19, each agency is asked to
assign a formal point of contact and people to be on call to help provide answers and
inputs to the delegation. Delegation members and the Washington point of contact
should attend this meeting.
Tuesday, July 11, 10 a.m.: Agencies provide State with final edits, inputs and
clearance on hard Qs and As.
July 7, COB: Agencies provide State with flnal edits and clearance on Qs and As.
Wednesday, JUly 12: State circulates electronic versions of briefing books.
Sunday, July 16 p.m. - Wednesday, July 19: Delegation members should treat
Sunday afternoon as a work day and should ensure strong coverage on Wednesday the
19th to provide written answers to follow-up questions. Washington action and
assistance will be required throughout that period.
Tuesday, July 18, 9:00 p.m.: Delegation dinner and celebration.

State looks forward to working with many of you again and meeting new members of the
delegation next Tuesday. I realize that we have a lot of work ahead of us, but our preparation
and hard work will make a huge difference in effective advocacy on behalf of our
government.
Thanks in advance for your continuing efforts.
Bob Harris

11/26/2008

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1_- ."~.

RELEASED IN PART
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PRELIMINARY COMPILATION OF PROPOSALS - 02/12/04

Preamble
The States Parties to [this instrument],

Considering the obligations of States under the Charter of the United Nations to
promote universal respect for, and observauce of, human rights and fundamental

B5

freedoms,

Having regard to the Universal Declaration of Human Rights,
Recalling the Declaration on the Protection of All Persons from Enforced Disappearance
adopted by the General Assembly of the United Nations in its resolution 47/133 of 1.8
December 1992,

Recalling all other relevant instruments,
Aware of the extreme seriousness of enforced disappearance, which constitutes a crime and,
in certain circumstances, a crime against humanity,

Determined to prevent ·enforced disappearances and combat impunity for the crime of
enforced disappearance,

Affirming @ f any person not to be SUbjected to· an enforced disappearance and
the rig!!t

o~tim~

to

kno~e

truth about the circumstances of an enforced disappearance

and the fate of the disappeared person,
Have agreed as follows:
/

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0503

UNCLASSIFIED

19

Article 1

B5

For the pUIJloses of [this instrument], enforceq disappearance is considered to be the
E1eprh'alisn sf a fJefssn's

Iills~',

in Yffiate'fer farm, arrest, detention, abduction or any

other deprivation of liberty committed by agents. of the a Slate or by persons or groups of
persons acting with the authorization, support or acquiescence of the a State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, whleD fJlaees sueD a

jllll'SEffi

and where such person

is placed outside the protection of the law.

OR
For the purpose of [this instrument), enforced disappearance Is considered to be the
placement of a person outside the protection of the law as a consequence of both hislher
deprivation of liberty, including arrest, detention or abdnction, committed by agents of
a State or by persons or groups of persons acting with the authorization, support or
acquiescence of a

Stat~,

and the refus~ to acknowledge the deprivation of liberty or the

concealment of the fate or whereabouts of the disappeared person.

2

/

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L0504

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Article 1 bls
I.

No one shall be subjected to enforced disappearance.

2.

[from former art. III-E] No exceptional circumstance whatsoever, ·whether a state of

war or a threat of war, internal political instability or any other public emergency, may be
invoked· as a justification for enforced disappearance.

3

UNCLASSIFIED
L0505

UNCLASSIFIED
BS
Article 3
1. Each State Party shall take the necessary measures to jlreseellte
criminally responsible lOOse '",he

,

a) those who attempt to commit and

jl\Inish hold

l

BS

\

ar~ccomplices)or participate

fl5sist in tile e_missien ef an enforced disappearance. 1I'L

I.

I

alia

.."...
v

In eommit or

~

,

--l

The fallowing shall ee jl\IRisheEl:

€a)

The jle£jlelratefll oran onforced disappearallce and those •....ho are accessarios ta

till

AttefRJ3teEi enfareed diSllj3pea1'llfielr,

(6)

Canspimcy to ea_it an enfaraeEl disappeamnee.

ffi,

2.

'The fallowing shall a1se be pmHshed:
(a)

These whe order ar eneelHage the cammission or attefRJ3teEi commission of

sueh an offence, and those who facilitate its eemmissian or att6fRJ3teEi commission by aiding,
abetting or etherwise assisting in it; inelliiling by pro'liEling tile means for its eommission or
attefRJ3teEi cammissian;
(b) The superior officer who:
•

(i) Knew, or consciousll ,illsregarded infonnation which clearly indicated, that
subordinates under his/her effective authority and control were committing or about to
~

commit an enforced disappearance and;
•

(ii) Failed to take

all necessary and reasonable measures within his or her power to

prevent or halt repress the enforced disappearance or to repress its commission er to
submit the matter to the competent authorities for investigation and· prosecution.

I
I

I,
I

BS!

2. An order from a superior officer or a public authority may not be invoked as a
justification for enforced disappearance.

4

UNCLASSIFIED
L0506

UNCLASSIFIED
Article 4
1.

/

Each State party shall make the offence of enforced disappearance punishable by
,

D

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D

B5

appropriate penalties which take into account its extreme seriousness.
2.

Each State party'~tablish;
(a)

,

Mitigating circumstances, inter alia for. persons who, having been implicated in

the commission of an enforced disappearance, effectively contribute to bringing· the
disappeared person forward alive or make it possible to clarifY cases of enforced
disappearance or to identifY the perpetrators of an enforced disappearance;
(b)

Aggravating circumstances,

i~n

the event of the death of the victim or

the commission of an enforced disappearance in respect of pregnant women, minors or other
particularly vulnerable persons.

5

UNCLASSIFIED
----_.__.....
L0507

UNCLASSIFIED
Article 5
Without prejudice to article 2 bis,
I.

A State Party which applies a statute of limitations in respect of enforced

B5

disappearance shall take the necessary measures to ensure that the term of limitation for
crimiiIal proceedings:
.(a)

Is €!bstaHlial of a long duration an~proportionateto the extreme seriousness

of this offence;
(b)

Commences from the moment when the offence of enforced disappearance
) B5

ceases and the fate of the disappeared person is established.

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'------.",
....- - " , r..--'

1

The term of limitation for criminal proceedings which is provided for in paragraph I

shall be suspended for as long as no effective remedy is available in a-the State Party te-any

vi&tim in case of an enforced disappearan~e.

I

6

UNCLASSIFIED
L0508

UNCLASSIFIED
Article 9
lake such measures as may be necessary to establish its

1.
jurisdiction over

e offence of e forced disappearance:

a) When the offence is committed in ~tory under its jurisdiction or on a ~ying its
flag or on an ~ircraftJegistered in accordance with its legislation at the time of the events;
B

b) When the alleged offender is one of its nationals or a stateless person usually ~esident in

its territory;
c) When the aUeged offender is a stateless person usnally resident in its territory and
the State Party considers it appropriate;
d) When the disappeared person is one of its nationals and the State Farty considers it
aWFEllll'iate.
2. :

Each State Party shall likewise take such measures as may be necessary to establish its

jurisdiction over the offence of enforceil disappearance when the alleged offender is present
in any terrirory under its jurisdiction, unless it extradites or transfers him or her in
accordance with its international obligations to another State or transfers him or her to an
international criminal tribunal whose jurisdiction it has recognized.
3.

[This instrument] does not exclude any additional criminal jurisdiction exercised in

L.-

-.J

accordance with internal national law.

7

UNCLASSIFIED
L0509

UNCLASSIFIED
Article 10

1.

Upon being satisfied, after an examination of infonnatiOli available to it, ihat the

circumstances so warrant, any State, Party in whose territory a person alleged to have
committed an offence of enforced disappearance is present shall take him or her into custody
or take other legal measures to ensure his or her presence. The custody and other legal
measures shall be as provided for in the law of that State ¥aFty but may be continued only for
such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2.

A State Party which has taken the measures referred to in paragraph I shall

immediately carry out an investigation to establish the facts. It shall notifY the States Parties
wIlieh Hlay hw;e jllrise1ietien iH aeeemaaee wi#! referred to in article 9, paragraph I, of the
measures it has taken in pursuance of paragraph 1 of this article, including detention and the
circumstances warranting detention, and the findings of its investigation, indicating whether it
intends to exercise its jurisdiction.
3. An

in custody pursuant to paragraph 1. shall be assisted in communicating

E5

ith the nearest appropriate representative of the State of which he or she is
a national, or, if be or she is a stateless person, with the representative of the State where
he or she usually resides

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8

UNCLASSIFIED
L0510

UNCLASSIFIED
B5
Article 11
1.

The State Party in the territory under whose jurisdiction a person alleged to have

committed an enforced disappearance is found shall, if it does not extradite that person or
transfer him or her in accordance with its international obligations to another State or
transfer him or her to an international criminal tribunal whose jurisdiction it has recognized,
submit the case to its competent authorities for the purpose of prosecution.
2.

These authorities shall take their decision in the same manner as in the case of any

ordinary offence of a serious nature under the law of that State Pai1y. In the cases referred ti>
in article 9, paragraph 2, the standards of evidence required for prosecution and conviction

shall in no way be less stringent than those which apply in the cases referred to in article 9,
B5

paragraph 1.
3.

Any person regarding whom proceedings are brought in connection with an enforced

disappearance shall be tried entitled to a fair and public hearing

by a competent,

independent and impartial celHt whieh has heen dtIly established by law and which respeets
the guamntees era fair lfial tribunal established by law.
4.
Any person regarding whom proceedings are brought in connection with an enforCed
disappearance shall be guaranteed fair treatment at all stages of the proceedings

9

UNCLASSIFIED
L0511

UNCLASSIFIED

Article 12
I.

Each State Party shall ensure that any individual who alleges that a person has been

subjected to enforced disappeaIllnce has the right to report the facts to 'a competent authority,
which shall immediately undertake a thorough and impartial investigation. Appropriate steps
shall be taken, where necessary, to ensure that the complainant, witnesses, relatives of the .
disappeared person and their defense counsel, as well as persons participating in the
investigation, are protected against all ill-treatment or intimidation as a consequence of the
complaint or any evidence given.
2.

Where there are reasonable grounds for believing that a person has been

su~ected

to

enforced disappearance, eoo!! State PaRr sllall refer tile matter to the authority referred to in
paragraph I fur-launcbes an investigation, even if there has been no formal complaint:
3.

Each State Party shall ensure that the authority referred to in paragraph I:
(a)

Has the necessary powers and resources to conduct the investigation

effectively, including the power to compel suspects or witnesses to appear before it;
R~eeives

(b)'

tile Has ac'cess to all documents and other information relevant for

it needs fer its investigation;
(c)

Has access to any place under its jurisdiction where it is suspected that a

disappeared person may be present.
4.

Each State Party shall take the necessary measures to prevent and punish acts likely to

hirder the conduct of the investigations. It shall ensnre in particular that persons suspected of
having committed an enforced disappearance are not in a position to influence tbe progress of
the investigations by means of pressure or' acts of intimidation or reprisal aimed at the
complainant, witnesses, relatives of the .disappeared person or their defense counsel, or at
persons Jlarticipating in the investigation.
5.

The investigation provided for in this article shall should be conducted in accordance

with !Ile relevant international standards, principles and guidelines relating applicable .to
investigations into human rights violations, including tbose on torture, and to the
prevention of extra-legal, summary or arbitrary executions, as well as to the search for
disappeared persons; and forensic examinations and identification.

10
.~

UNCLASSIFIED
L0512

UNCLASSIFIED
Article 13
1.

For the purposes of extradition between States Parties, the offence of enforced

disappearance shall not be regarded as a political offence or as an offence connected with a
political offence or as an offence inspired by political motives. Accordingly, a request for
extradition based on such an offence may not be refused on these grounds.
2.

The offence of enforced disappearance shall be deemed to be included as an

extraditable offence in any extradition treaty existing between States Parties before the entry
into force of[this instrument].
3.

States Parties undertake to include the offence of enforced disappearance as an

extraditable offence in every extradition treaty subsequently to be concluded between them.
4.

If a State Party which makes extradition conditional on the existence of a treaty

receives a request for extradition from another' State Party with which it has no extradition
treaty, it may consider [this instrument] as the necessary legal basis for extradition in respect
ofthe offence of enforced disappearance.
5.

A State Party which does not make extradition conditional on the existence of a treaty

shall recognize the offence of enforced disappearance as an extraditable offence between
States Parties themselves.
6.

Extradition shall, in all cases, be SUbject to the conditions provided for by the law of

the requested State Party or by applicable extradition treaties, including, inter alia, conditions
. in relation to the minimum penalty requirement for extradition and the grounds upon which
the requested State Party may refuse extradition or make it subject to certain conditions.
7.

Nothing in [this instrument] shall be interpreted as imposing an obligation to extradite

if the requested State Party has substantial grounds for believing that the request has been
made for the purpose of prosecuting or punishing a person on account of that person's sex,
race, religion, nationality, ethnic origin or political opinions or that compliance with the.
request would cause prejudice to that person's position for anyone of these reasons.

11

UNCLASSIFIED
L0513

I
I

UNCLASSIFIED
Article 15 bis
I.

No State Party shall expel, return ("r'ifou[eY")

,~an~~or extradite a person

to

another State where there are substantial grounds for believing that he or she would be in
danger of being subjected to enforced disappearance.
2.

For the purpose of detennining whether there are such groilnds, the' coin~tent

authorities shall take into account all relevant considerations, including, where applicable, the
existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of
human rights or ofhumauitarian law.

. 12

UNCLASSIFIED
L0514

UNCLASSIFIED
Article 16
I.

Each State Party shall, under its law:
a) Indicate those officials autborlties authorized to order deprivation ofliberty;
b) Establish the conditions under which such orders may be given;
c) Guarantee that any person deprived of liberty shall be held solely in an officially
recognized and supervised place;
d) Guarantee that any person deprived of liberty sbail be autborized to
communicate wltb a person of bislber choice, wben sucb a communication is uot
incompatible wltb tbe purpose of tbe detention;
e) Guarantee access by the judicial authorities to the places where persons are deprived
ofliberty;
f) "Guarantee that any person deprived of liberty shall, in all circumstances, be entitled to

take proceedings before a court, in order that that court may decide without delay on
the lawfulness of the deprivation of liberty. and order his or her release if that
deprivation of liberty is not lawful.
2.

Each State Party shall compile "and maintain one or more official registers of persons

deprived of liberty. The information contained therein shall include, as a minimum:
a) The identity ofthe person deprived of liberty;
b) The authority that orderee bavingdecided the deprivation of liberty;
c) The authority responsible fer supcf\qsing controlling the deprivation of liberty;
d) The date and time of admission to the pl~ce of detention and the authority responsible
for tbe place of detention;
e) The State of bealth and, in the event of deatb, the circumstances and cause of
death
f) The date and time of release or transfer to another place of detention, the destination

and tbe authority responsible for the transfer.

13

UNCLASSIFIED
L0515

UNCLASSIFIED
Article 16 bis
I.

Each State Party shall guarantee t9 llle peFS91l deprived 9f lillefty llIld te his or her

as to any person al»<1l-te-eieltiltwith a

legi~his articl~ ,access t~ at least

the following infonnation:
(a)

The authefity te '....hieh llle !'efS91l has beell hallded ever;

(b)

The authority that 9rdered having decided the deprivation of liberty;

(c)

The authority responsible for.sllfJef'l'ising the !'arsen de!,rived controlling the

deprivation of liberty ;
(d)

The whereabouts of the person deprived of liberty, including in the event of a

transfer;

(e)

The date and place of release;

(f)

The state of health and, in the event of death, the circumstances and causes of

I

death.
2.

Appropriate measures shall be taken, where necessary, to protect the ,persons referred

to in paragraph I, as well as persons participating in the investigation, from any ill-treatment,
intimidation or sanction as a result of the search for infonnation concerning a person deprived
ofliberty.
,3.

In order not to jeopardize the privacy of the persons concerned, the infonnation

provided pursuant to paragraph I of this article must be appropriate and relevant for the
intended purpose SIld must net be used fer pllfl'eses ether than of the search for the person
deprived ofliberty. ,

14

UNCLASSIFIED
L0516

UNCLASSIFIED
Article 17
Without prejudice to consideration of the lawfulness of the deprivation of a person's liberty,
States Parties shall guarantee to the relatives sf the llersslI e8jlfived ef liller!)' er sf the
eislIflI'learee llersell, their legal FIlj'lI"eSellta!i'fes, their esulIss! alIe ally llefSSlI authel'i2:Ce by the
persSlI eepl'iyee sflillerty sr by the eislIflI'learee persea sr ey !lis sr her relatives, as well as Ie

aIlY sther persslI able ts elaim a legitimate iflteresl the persons referred to in Article 16bis
1, the right to a prompt and effective remedy as a means of obtaining without delay the
information referred to in article 16 bis. This right to a remedy may not be suspended or
restricted in any circumstances.

15

UNCLASSIFIED
L0517

UNCLASSIFIED

Article 19

1. Each State Party shall take the necessary measures to prevent and punish the following
conduct:
a) Delaying or obstructing the remedy referred to in article 16.1 e) and 17;
b) Failure to record the deprivation of liberty of any person, or the recording of any
information which the official responsible for the official register knows or ought to know
to be inaccurate;
2. Refusal by an official to provide information on the deprivation of liberty of a person, or
the provision of inaccurate information, even though the legal requirements for providing
such information have been met

16

UNCLASSIFIED
L0518

UNCLASSIFIED
Article 22

I.

For the purposes of [this instrument1 "victim" means the disappeared person and any

individual natural person who has suffered direet hann as a direct result oflllm llefSefl's an
enforced disappearance.

2.

.

Each State Party shall take the necessary measures to ensure that every victim knows

the truth regarding the circumstances of the enforced disappearance and the fate of the
disappeared person. In particular, it shall take the necessary measures to search for, locate
and release disappeared persons and, in the event of death, return their remains.
3.

Each State Party shall guarantee the right of victims of enforced disappearance to

obtain prompt, fair and adequate reparation for the hann caused to them.

4.

The right to obtain reparation referred to in paragraph 3 includes full compensation for

material and psychological harm. It may also include other modalities of reparation such
as:
a) Restitution;
b) Rehabilitation;
c) Satisfaction;
d) Guarantee of non repetition, including restoration of honour and reputation
5.

Without prejudice to the obligation to continue the investigation until the fate of the

disappeared person has been clarified, each State Party shall take the necessary measures with
regard to the legal situation of the disappeared persons whose fate has not been clarified and
that of their relatives, in fields such as social welfare, financial matters, custody of children
and property rights.

17

UNCLASSIFIED
L0519

~

..

('

UNCLASSIFIED
Article 23
1.

Each State Party shall take the necessary measures to prevent and punish under its

criminal law:
a) The abduction or appropriation of children who are '!iearns sf snfureed aiSlljlflearaRe6
disappeared, children whose father or mother is a victim of enforced disappearance
Or children born during the captivity of a' mother who is a victim of enforced
disappearance; ,
b) The falsification or destruction of documents attesting to the true identity of the
children referred to in sUbparagraph (a).
2.

Each State Pilrty shall take the necessary measures to search for and identify the

children referred ,to in paragraph 1 (a) and (h)

18

UNCLASSIFIED
L0520

UNCLASSIFIED
Article 25
I. When a child who has beim abducted or appropriated in the circumstances described in

article 23, paragraph 1 (a), is found in the territory of a State Party, the question of the
child's possible retum to his or her family of origin shall be resolved either under the
national. legislation of that State Party or under a bilateral or multilateral agreement
entered into by that State and by the State in which the family of origin resides.
2. In aU cases, the best inierests of the child shaU be a primary consideration, and a child
who is capable of forming his or her own views shall have the right to express those views
freely, the views of the child being given due weight in accordance with the age and
maturity ofthe child.
3. Considering the need to ·protect the best interests of the children referred to in
paragraph 1, there shall be an opportunity, In States Parties which recognlzc a
system of adoption, for a review of the adoption of snch children and, in particular,
for annulment of any adllption which originated in enforced disappearance. Such
adoption should, however, continue to be in force if consent Is given; at the time of
review, by the cblld's closest relatives.

19

UNCLASSIFIED
L0521

.

-'.

UNCLASSIFIED

JChou, Nina E
From:
Sent:
To:

Cc:
SUbject:
Attachments:

RELEASED IN PART
B6

Hill, Steven R
Sunday, July 16, 2006 12:48 PM
Waxman, Matthew
'Harris, Robert K'; Schou, Nina E; Sentes, JUlianna W; 'TDY-Surena, Andre';

IOpening statementI

'

B6

opening sun 1900.DOC

Matt,
This draft incorporates the comments we've received, including your own and Bob's.
Steve

opening Sun
1900.DOC (56 KB)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 30 JUL 2009 200706444

UNCLASSIFIED
,
L0522

UNCLASSIFIED
Schou; Nina E

RELEASED IN pART
LkLfCl.
B6, B5

Subject:

Hill, Steven R
Thursday, July 13, 2006 10:57 AM·
Harris, Robert K
Andre Surena; Nina Schou; Schou, Nina E; Bentes, Julianna W; Legal-L-HRR;
Padmanabhan, Vijay M
RE: ICCPR "Scripf'

Attachments:

scriptdoc

From:
Sent:
To:

Cc:

scrlpt,doc (321 KB)

Not sure if people had trouble opening this so I'm re-sending.
-----Original Messa~g~e~-_-_-_-_~
__
From: Steven Hill
Sent: Thursday, Ju ~y~1~3~,~2~O~O~6~.~3~:~2~2~A&~1~--------­
To: Bob Harris
Cc: Andre Surena; Nina Schou; Nina Schou; Julianna W Bentes; L/HRR
Subject: ICCPR "Script"

f

Bob,
Here is the result of my efforts today to trim the written Q&A's down into a script.
(Pardon the delay -- I needed a break midway through doing this.) Based on a reading
speed of 1 minute 30 seconds per double-spaced, 14 point Times New Roman page (which was
John's pace at the CAT hearing), Monday's material should take about 40 minutes, Tuesday's
50 minutes.

I split question 11 (on material witness warrants) between Wan and Igor so that Igor would
have something to say on Monday. Igor's Katrina stuff comes up on Tuesday. I gave Wan
the indigenous materials in question 1.
Let me know how you want to proceed.

Steve
Andre: I know you won 1 t be able to open this attachment and will attempt to forward it to
you from my Blackberry.

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
DATE/CASE m: 12 AUG 2009 200706444

1

UNCLASSIFIED
L0523

UNCLASSIFIED
RELEASED IN FULl:-66
[B:a.um~i£t,lfB:;Zi~
From:
Sent:
To:
SUbject:

Knight, Marie C
Wednesday, September 19, 2007 1:11 PM
Baumert, Kevin A
ICCPR transmittal letter

Attachments: ICCPR Follow-Up transmittal letter.doc
Hey there,
Here's a draft of the transmittal letter for the ICCPR follow-up. As I mentioned before, it is nearly
identical to the CAT transmittal. Let me know if you'd like anything changed.
Chantal,

~

[CCPR Follow-Up
transmittal Ie...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 31 JUL 2009 200706444

UNCLASSIFIED
L0524

UNCLASSIFIED
RELEASED IN FULL
[date]

Mr. :--

_

Chairman
Human Rights Committee
c/o Office of the High Commissioner for Human Rights
Palais des Nations
CH-1211 Geneva 10

Dear Mr. Chairman:
I have the honor to transmit my govemment's response to specific
recommendations identified by the Human Rights Committee in its conclusions and
recommendations in relation to the Second and Third Periodic Reports of the United
States of America. The Committee requested this information within one year in
document CCPRlCIUSAlCO/3, dated Sept. 15,2006.
Please allow me to express the longstanding commitment of the United States to
the protection and promotion of human rights and its appreciation both for the work of
the Committee and for your personal leadership on these important issues.

Sincerely,

Warren W. Tichenor
Ambassador

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 31 JUL 2009 200706444

UNCLASSIFIED
L0525

UNCLASSIFIED

".'

RELEASED IN FULL

L837
oetobre 2006
NON-PAPIER

Projel dc Convention internationale pour la protection de toutes les personnes contre les
dlsparltlons forcees

Lors de sa session inaugurale en juin demier Ie Consei! des droits de l'homme a adopte,
par consensus, Ie projet de "Convention internationale pour la protection de toutes les
personnes contre 'les disparitions forcees" (resolution 1/1). L'adoptiol) de ce texte a ere
applaudie et a souleve une profonde emotion. 59 Btats de tons les ,continents ont apporte leur
co.parrllinage il ce texte. II revient desonnais it !'Assemblee Generale d'adopter ce texte afin
qu'i! soit ouvert it la signature des Btats.
La pratique des disparitions forcees est aujourd'hui encore largement rlipandue sur tous les
continents. ElJe constitue une des principales menaces qui pese sur les defenseurs des droits
de I'homme. Les Nations unies ont recense 51000 cas dans plus de 90 pays depuis ! 980, dont
41 000 sont toujours en attente d'elucidation. En 2005, ont ere enregistres 535 nouveaux cas
dans 22 pays.

Le nouveau projet de traite represente une avancee considerable pour la promotion et la
protection des droits de l'homme :
I) iI eomble un vide jnrldique
En vertu du nouvel instrument:, les Btats parties s'engagent II :
incrlmiuer au plan penal les disparitions forcees et poursuivre leurs auteurs,
leurs compJices et leurs commanditaires ;
appliquer aux disparitions forcees un regime de prescription particulierement
favorable aux victimes ;
•

renforcer leur cooperation intemationale pour lutter contre ces crimes;
garantir Ie droit des proches a la verite: droit des proches a COlIDlUtre la verite
sur Ie sort de la personne disparue et les circonstances de sa disparition et:, a
titre preventit; droit de toute personne ayant un interet legitime il recevoir des
informations concernant une privation de liberte et a contester la legalite de
celJe..ci;
,
p!l!ndre des mesures preventives: interdiction des detentions secretes et des
lieux de detention non officiels, garanties procMurales entourant la privation
de liberte, tenue de registres d'ecrou precis, fonnalion des forces de l'ordre ;
gl!!1!lItir Ie droit des victimes II reparation (sous toutes ses formes:
indemnisation ou autres) ;
pennettre l'annulation de toute adoption qui trouve son origine dans une
disparition forcee.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 31 JUL 2009 200706444

UNCLASSIFIED
L0526

UNCLASSIFIED

2) il fait progresser Ie droit international des droits de I'homme
Le nouvel instrument:

reconnait de nouveaux droits : droit de toutepcrsonne Ii ne pas
une disparition forcee, droit des victimes de savoir Ia verite ;

eire soumise 11

renforce Ies garanties entourant la detention;
consacre Ie droit des victimes de disparitions forcees 11 reparation, donnant
'ainsi suite aux principes fondamentaux et directives concernant Ie droit Ii un
recours et Ii reparation des victimes de violations flagrantes du droit
international relatif aux droits de l'homme ef de violations graves du droit
international humanitaire(ElCN.4/RES/2005/35) ;
cree un organe de sujvi original: Ie Comite des disparitions forcees, compose
de 10 membres, remplira, outre'les fonctions classiques d'un organe de traite
(examen des rapports des Etat&, des communications individuelles et interetatiques, soumission de rapports 11 l'AGNU), une fonction preventive, en
lanyant des appels urgentri et en effectuant des visites sur place en cas de
situation grave. II pourra en outre en cas de violations massives et
systematiques porter Ia situation a I'attention du Secretaire general des Nations
Vnies. A la croisee entre procedures speciales et organes des traites, il se
coordonnera etroitement avec eux. II est cree pour une penode eXpenmentale
de 4 ans, dans J'attente d'une refozme gen6raJe des organes conventlonnels.

UNCLASSIFIED
L0527

UNCLASSIFIED
RELEASED IN FULL
October 2006

Lt337A-

NON-PAPER

Ilraft International Convention for the Protection of All Persons from Enforced
Disappearances

In its inaugural session in June 2006 the Human Rights Council adopted by consensus
the draft "International Convention for the protection of all persons from enforced
disappearances" (resolution HRC/2oo611). The adoption -of the text triggered a standing
ovation and was a moving event. 59 States representing all continents cp-sponsored the text
which is now to be adopted by the General Assembly at its sixty-first session.
The practice of enforced disappearances is still widespread nowadays throughout the world. It
does constitute one of the main threats for the human rights defenders. According to the
United Nations 51.000 enforced disappearances occurred since 1980 in more than 90
countries, 41.000 of which have not be elucidated yet. 535 new cases in 22 countries were
registered in 2005.
The draft Convention represents a remarlcable step forward in the promotion and protection t)f
human rights :
1) It addresses a legal loophole
In accordance with the new instrument, State Parties commit themselves to :
ensure that enforced disappearance constitutes an offence under their criminal
law and bring to justice its perpetrators, their accomplices and the people who
ordered, solicited or induced it ;
Apply to enforced disappearances "victim-friendly" statutes oflimitation ;
Strengthen their international cooperation
disappearance;

to

fight

against enforced

guarantee the right of victims' relatives to know the truth: the right of relatives
to know the truth on the circumstances of an enforced disappearance and the
fate of the disappeared person, and, in order to prevent enforced disappearance,
the right of any person with a legitimate interest to be given minimum
information regarding the deprivation of liberty of a person and to take legal
action to challenge its lawfulness;
take preventive measures: to prohibit secret detention and unofficial places of
detention, to provide for legal guarantees in case of deprivation of liberty, to .
maintain up-to-date official registers of persons deprived of liberty, to provide
training for enforcement officials;
guarantee the right of victims to obtain reparation (under all possible fOnDs:
compensation or others) ;
allow review ofany adoption originated from an enforced disappearance.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 31 JUL 2009 200706444

L"

UNCLASSIFIED

'th

L0528

UNCLASSIFIED

2} It makes international human rights law accomplish new progress
This new instrument:
recognizes new rights: the right of any person not to be subjected tc enforced
disappearance, the right of victims to know the truth;
-

reinforces legal guarantees regarding detention;
confirms the right of victims ofenforced disappearance to obtain reparation, as
a follow-up to the Basic principles and guidelines on the right to a· remedy and
reparation for victims of gross violations of international human rights law and
serious violations ofintemational humanitarian law (ElCN,4fRES/2005/35) ;
establishes an original follow-up mechanism : besides implementing the
traditional activities of treaty bodies (review of States reports, of individual
and inter-States communications. reports to UNGA). the Committee on
enforced disappearances, which shall consist of 10 members, will· fulfil a
preventive role by launching urgent appeals and making country visits in case
of serious violations. It will also bring the matter to the attention of the
Secretary General of the United Nations in case of gross and systematic
violations. Standing at the crossroad of special procedures and treaty bodies, it
will closely coordinate with them. The Committee is established for a trial
period of 4 years, pending a global treaty body reform

UNCLASSIFIED
L0529

UNCLASSIFIED

Page 1 of2

RELEASED IN PART
B5, B6
1.-8/3

Baumert, Kevin A
From:

Baumert, Kevin A

Sent:

Friday, September 07,20074:49 PM

To:

Harris, Robert K; Hill, Steven R

SUbJect:

RE: ICCPR One year follow-up

Attachments: lEGAL-_54371-v1-ICCPR_follow_up_2007.DOC

Bob,

.

Attached is the ICCPR follow up submission, revised to take into account your comments (including new additions from DoJ,
000. I left your original comments in tracked changes so that you can see what's changed ...
Two things:

B5

-I
L..-.

--,---

_

Thanks,
Kevin
-----Original Message~-~-~-~-~___
From: Robert Harris
Sent: Monday. August ""'Z"O'.--..;Z"O"07.,...-.Z'::1:5"'O""PM,.-----------, To: Baumert, Kevin A; I
Cc: Ilill. Stephen A (B!::ca=-=g""h""d"a'd')-,-:H""a"'r=rJi=s-,-'R""o"b~ert K; --------------------~
lPadmanabhan, vijay M; NixoI\. Gina M

I

rl

I

sUbJect: ICCPR One yeal LOXlow-uP

B6

B6

B6
B6,

Kevin,

B5

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
lf22/2008 DATE/CASE!D: 12 AUG 2009 200706444

UNCLASSIFIED·
L0530

.,.

.,

UNCLASSIFIED

Page 2 of2 .

B5
Thanks to all.

Bob

1/22/2008

. UNCLASSIFIED
L0531

Page I on

UNCLASSIFIED
Baumert, Kevin A

RELEASED IN PART
B6, B5
L835:

From:

MaryBeth Wes~

Sent:

Tuesday, January 16, 2007 9:09 AM

To:

Andre M. Surena; Harris, Robert K; Baumert, Kevin A; Hill, Steven R; Kovar, Jeffrey D

SUbject:

Fwd: ICCPR prelim short responses

B6

'---::-::-:-:==--:-:--:-:-c-----'

Attachments: ICCPR - USG Resp to HRC Conclusions & Recommendations [JAN 07].doc

Dear AlI--

r have reviewed Andre's copy.

The info on state laws regarding sexual orientation is fme. t can probably provide more
examples if you wish. Also, I have some examples of state progra{lls to address racial profiling (if these would be
helpful).
B5

Let me know if more specifics on states re sexual orientation or racial profiling would be helpful.
Mary Beth
---------- Forwarded messa"'g""e.:::-=-=--=--=--=_
From: Andre M. Surenal
Date: Jan 15,200711:16 p m M : r - - - - - - - - Subject: Re: ICCPR prelim short responses
To: Robert Harris I
Ibaumertka@State.gov ,~H~arr~is~RK2~':!:@:"st=a=te~.g~o~v"-------Cc: HillSR@state.gm:,I
-..JlkIDialjd@state.gov,

B6

B6
I. - - - - - - -I BJ36

Comments attached.
----- Original Message_------------_ _----,
From: "Robert Harris"l
,
~
To: <baumertka@state.gQY>; < HarDsRK2@state.gov>;
Cc: <Hi1ISR@state.go'£~
------<kovmjd@state.gov>; <1
Sent: Sunday, January 14,20074:55 PM
Subject: RE: ICCPR prelim short responses

I

B6
B6
B6

> Kevin,

>
> Here are my comments. ,
> I wonder if Andre might'ttafj]K~e"a"qmUTI\CrnKnl'mli'iOi1l'K"a;rtTftl\ll'\s.,-,.."p"'"mrrtlTrCTIUrnlaIrrllcvy.ommrr----> answers
> on sexual orientation, juvenile death penalty, and DC voting rights. I
> also
> wonder if Steve could look this over. I would like to get this around to
> Department people on Tuesday, with a request that they give us any
> comments
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
1/22/2008 DATE/CASE ID: 12 AUG 2009 200706444

B5

UNCLASSIFIED'
L0532

".

.

UNCLASSIFIED

Page 1. OI

j

> Wednesday morning. We can then circulate something to DOJ and DHS on
> Wednesday.
>
> Steve,
>
> To keep things as simple as possible, please write your CAT paper using
> this
> format, if it isn't too much additional work.

>
> Mary Beth,
>·r--------------~----__,

>

B5

~
~
~

> Thanks to all. This process will really give us a jump start in
> responding
> to the issues the committees' identified for interim usa responses.
>
> Bob
>
>
>
>
»From: "Baumert, Kevin A" <baumertka@state.l!ov >
»To: "Robert Harris"
]Harris, Robert K"
»<HarrisRK2@state.gov >
.
»CC: "Hill, Steven R" <HillSR@state.gov>,"Baurnert, Kevin A"
»<baumertka@state.gov>,1
I .
»Subject: ICCPR prelim short responses
»Date: Fri, 12 Jan 200717:53:13 -0500
»
»Bob,
»Attached is the latest draft, as well as most of the docs (or links) I
»used to compile the short answers. We can discuss further on Tues (or
»over the weekend, ifyou want).

1

B6

B6

»
»A few notes:
»- Larry at DoJ said that he would write up short responses to #s 19 and
»32 over the weekend
». the Detainee TPs are taken from a cable on the class side, so that is
>>not attached here
»- The link to our ICCPR report and the July 2006 usa responses to ICCPR
»Qs: http://www.state.gov/g/drllrls/c16069.htm (4th and 5th link). These
»pages are very easy to keyword search

»
»Thanks.
»Kevin

»
»Docs attached:

1/22/2008

UNCLASSIFIED
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Page 3 00

»- Draft prelim responses
»- Bellinger LSE speech
»- USG reply to 5 SR report on GTMO
»- Military Commissions Act
»- IACHR brief, DC voting case
» «Ctte Concems and Recs.doc»
» «mili~ commiSsions act HR 6166.txt.pdf.»
»«LEGAL-#21648-v3-USGY-eply_to_SR_GTMO_Report~006.DOC» «Bellinger
»LSE Speech - Oct 2006.pdf.» «IACHR briefDC voting at p5.pdf.»

>
>
»« Ctte_Concerns_and_Recs.doc »
>
>
»« militarycommissionsactHR6166.txt.pdf»

>
>
» « LEGAL·_21648-v3-USG_Reply-to_SR_GTMO_Report_2006.DOC »
>
>
»« BellingerLSESpeeclJ..0et2006.pdf»
>
>
»« IACHRbriefDCvotingatpS.pdf»
>
>

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1/22/2008

.

UNCLASSIFIED
L0534

I

( ---

UNCLASSIFIED·
Text proposed by United States delegation
.

LC7

,

I

RELEASED IN FUL~

Article 1.

"For purposes of this instrument, an enforced disappearance is
considered to be an arrest, detention, or abduction of a person by, or
with the authorization, support or acquiescence of, a State, followed by
its refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such person, with the
intention of removing that person from the protection of the law for a
prolonged period of time."

\

Article 2. At end of paragraph one; add a new sentence as follows:
"The same shall apply to an attempt to commit an enforced
disappearance and to an act by a person which constitutes complicity or
participation in, or a conspiracy to commit, an enforced
disappearance."
Article 2bis.
"States Parties shall take aU feasible measures to prohibit and
criminalize the acts described in Article 1 when committed by private
organizations, groups or individuals."

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE!D: 13 AUG 2009 200706444

UNCLASSIFIED
L0535

UNCLASSIFIED
COMMISSION ON HUMAN RIGHTS

E/CN.4/2004/WG.22/Misc.20

Working Group on a draft legally binding
normative instrument for the protection of
ail persons from enforced disappearance
Geneva, 12-23 January 2004

16 J'!nuary 2004

Lc8

RELEASED IN FULL

PROPOSAL OF

THE UNITED STATES
EleN.4/2004/WG .22/Misc.20

/

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

UNCLASSIFIED
L0536

UNCLASSIFIED
E/CN, 4-/;;'OO<f-/W4'U /HIf.C,2.0

1(.

Ia.IUMl.

ry :2004

US¢ Proposed Text
Article 4. Add new Article 4(3):
"Mitigating and aggravating circumstances shall also be permitted as
provided under the domestic law of a State Party unless inconsistent
with the object and purposes ofthis instrument."

Article 9. Replace Article 9(1)© and Article 9(1)(d) with the following.
"In addition, each State' party may take the necessary measures to
establish jurisdiction in respect of an enforced disappearance in the
following instances:
(a) when the disappeared person is one of its nationals; ,
(b) when the alleged perpetrator of the offense is present in a
territory under its jurisdiction, unless the State extradites the
alleged perpetrator, or transfers him or her to an international
tribunal.
Article 10(3). Preference is to delete Article 10(3).
Otherwise reword as follows:
" Any foreign national held in custody pursuant to paragraph one may
communicate with an appropriate representative of the State of which
he or she is a national in accordance with applicable international legal
obligations."
Article 11.
Article 11(3): Substitute "duly constituted under law" for "of general
jurisdiction," so that the provision reads as follows.
"Any person alleged to have committed an enforced disappearance shall
be tried in a court duly constituted under law which offers guarantees of
competence, independence and impartiality and respect for a fair trial."

UNCLASSIFIED
L0537

UNCLASSIFIED

Article 12.
Article 12 passim. Change competent "authority" to "domestic
authorities."
Article 12(3): Add at end of chapeau:
", in accordance its domestic law":
Article 12(6): Reword as follows: "Each party shall endeavor to take
the necessary measures to prevent or punish acts intended to hinder an
investigation."

Article 13(6) and 14(2): Add after "refuse": "or condition".
Article 15.
Add to Article 15(1) and 15(2) after "assistance":
"in appropriate cases."
Chapter 6 should read "Prevention"'not "Presentation."

Article 16.
,
Article 16(1)(d): Add at end of chapeau: "in accordance with the
Constitution of the State Party":
Article 19.
Article 19(a): Add "knowing" before "delay."
Article 19(b): Add "knowing" before "Failure."

UNCLASSIFIED
L0538

UNCLASSIFIED

Article 20.
The United States delegation proposes either the current text or a text
that incorporates beneficiaries of training, other than law enforcement
personnel, who are referred to in CAT Article 10 (i.e., civil or military,
medical personnel, public officials
and other persons who
may become
.
\
involved in a situation of enforced disappearance.
. I

,

Article 21.
Reword text to track CAT Article 3, as follows:

"1. No State Party shall expel, return ("refouier") or extradite a person
to another State where there are substantial grounds for believing that
he or she would be in danger of being subject to an enforced
disappearance.
.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human
rights."

UNCLASSIFIED
L0539

UNCLASSIFIED
E/CN.4/2005/WG.22IUSA2
09/0212005

US Proposal

RELEASED IN FULL

LcjD

Article 4 (fonner article 2)
Each State Party shall ensure that an enforced disappearance is fully covered under its
criminal or penal law.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

UNCLASSIFIED
L0540

UNCLASSIFIED
RELEASED IN FULL
COMMISSION ON HUMAN RIGHTS

E/CN.4/2004/WG.22/MlsC.47

Working Group on a draft legally binding
normative instrument for the protection of
all persons from enforced disappearance
Geneva, 12-23 January 2004

23 January 2004

PROPOSAL OF THE UNITED STATES
ACCES TO INFORMATION
States Parties shall take the necessary measures within their domestic legal systems to
ensure respect for the freedom of family members, and other persons with a legitimate interest
within the meaning of Article 12 (4), to seek and receive information regarding the
whereabouts and fate of a disappeared person, or a person who, it is reasonably believed could
become a victim of an enforced disappearance.

AcctS

AL'INFORMATION

Les Etats parties prennent les mesures necessaires, dans Ie cadre de leur ordre
juridique interne, pour assurer Ie respect de la liberte des membres de la famille, et des autres
personnes ayant un interet legitime telles que decrites it I'article 12 (4), de rechercher et
recevoir des informations relatives au sort et au lieu oil se trouve la personne disparue, au une
personne qui, croit-on raisonnablement, pourrait devenir victime d'une disparition forcee.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AIIMAD
DATE/CASE ID: 13 AUG 2009 200706444

UNCLASSIFIED
L0541

UNCLASSIFIED

L
RELEASED IN FULL

Text proposed by United States delegation

l~/2~

Article 1.
"For purposes of this instrument, an enforced disappearance is
considered to be an arrest, detention or abduction of a person by, or
with the authorization, support or acquiescence of, a State, followed by
its refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of such person, with the inttion
of removing that person from the protection of the law for a prolonged
period of time."
Article 2. At end of paragraph one add a new sentence as follows:
"The same shall apply to an attempt to commit an enforced
disappearance and to an act by a person which constitutes complicity or
participation in, or a conspiracy to commit, an enforced
disappearance."
. Article 2bis.
"States Parties shall take all feasible measures to prohibit and
criminalize the acts described in Article 1 when committed by private
organizations, groups or individuals."

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

UNCLASSIFIED
L0542

UNCLASSIFIED
'."

RELEASED IN FULL
COMMISSlON ON HUMAN RIGHTS

E/CN .4/2004/WG.22/Misc.21

Working Group on a draft legally binding
normative instrument for the protection of
all persons from enforced disappearance
Geneva, 12-23 January 2004

16 January 2004

PROPOSAL OF

THE UNITED STATES
E/CN.4/2004/WG.22/Misc.21

UNITED STATES DEPARTMENT OF STATE

REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED

L0543

UNCLASSIFIED
RELEASED IN FULL
COMMISSION ON HUMAN RIGHTS

E/CN.4/2004/WG.22/Misc,46

Working Group on a draft legally binding
normative Instrument for the protection of
all persons from enforced disappearance
Geneva, 12-23 January 2004

23 January 2004

LC./b

PROPOSAL OF THE UNITED STATES

ART. 3 - F
The present instrument is without prejudice to the provisions of
international humanitarian law, including the obligations of the High
Contracting Parties to the four Geneva Conventions of 12 August 1949 and the

Additional Protocols thereto of 8 June 1977, or to the opportunity available to any
State Party to authorize the International Committee on the Red Cross to visit places
of detention in situations not covered by international humanitarian law.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNQLASSIFIED
L0544

UNCLASSIFIED
. RELEASED IN FULL

LC,Z'/

Enforced or Involuntary Disappearances (L.59)
. Explanation of Position

Mr. Chairman, ttte United States has long been and remains among the strongest
champions of the right of everyone to be free from enforced or involuntary
disappearances. Toward this end, the United States has actively participated in the ongoing negotiations of the open-ended working group to elaborate a legaily binding
instrument to protect all persons from enforced disappearances. The text of L.59 - quite
appropriately - attaches considerable importance to the on-going negotiations on that
instrument and welcomes the substantial progress made thus far by the negotiators. For
this, Mr. Chairman, we must commend Ambassador Bernard Kessedjian, the Permanent
Representative of France, for his steadfast and very capable chairmanship of the working
gmup.
The United States. however, wishes to underscore its strongly held view that the
negotiation of this new instrument should not be unduly rushed. On the other hand, the
negotiation of such an important jnstrument need not require an extended period of years
.to complete. What is most important is that the final instrument be carefully-crafted,
comprehensively-analyzed, consensus-based, and by no means SUbject to arbitrary
timeframes for its completion. It is our hope and expectation that these guiding
principles will continue to shape this negotiating process. For it is only within that
framework that the final instrument can expect to win adoption by consensus and
universal acceptance within the international community.
Within these considerations in mind, the U.S. is pleased to join consensus in the adoption
of this resolution. Thank you, Mr. Chairman.
Delivered by T. Michael Peay , April 19, 2004
Drafted: TMPeay

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0545

UNCLASSIFIED
RELEASED IN FULL
• The United States underscores that forced disappearances
are a serious human rights violation that deserves
universal attention, especially by governments, to
prevent, prohibit, and punish forced disappearances.

• We would like to recognize the leadership, organization,
and hard work that allowed the first negotiating session
you chaired last January to be highly substantive and
collegial;
•

In the spirit of the constructive candor that has thus
far shaped these negotiations, we find -it necessary to
voice serious objection to ~informal inter-sessional
meetings" or ~informal drafting group meetings" in
negotiations of mUltilateral instruments such as the one
under consideration.

•

In the view of my Government, such ~ informal" intersessional treaty meetings -- coming on top of intense
substantive and formal two-week negotiating sessions each
year - strain personnel and other government resources.
In sUbstantive terms, such informal sessions can also
result in hastily formulated positio~s and incomplete
analysis of draft instruments before their formal
adoption. This inevitably leads to the publication of
inherently flawed instruments, which is a result that
serves no one's interests.
•
The devotion of finite governmental resources to these
negotiations must be viewed in the fuller context of
each State's other human rights negotiations commitments,
as well as human rights reporting commitments, and of
course annual resource commitments related to
participation in the Commision on Human Rights and the
UNGA Third Committee, which themselves demand significant
resources and staffing each spring and fall.
• Additionally, "informal" inter-sessional negotiations
tend to undermine the principle of universal
participation, as not every State is always able to
engage fully in such negotiations.
• In short, my Government believes that the multilateral
treaty-making process is best served when negotiating
procedures allow all States a full and effective
opportunity to elaborate the text of an agreement.Experience has shown that single, official sessions, held

UNITED STATES DEPARTMENT OF STATE

REVIEW AUTHORITY: SHARON E AHMAD

UNCLASSIFIED

DATE/CASE ID: 12 AUG 2009 200706444

L0546

UNCLASSIFIED
annually, allow States to have the opportunity they need
before the next session to review a text and working
group report in' capitals and to carry out requisite
inter-agency and other internal consultations in
preparation for the next session.
• Following that past practice, we believe that this
negotiation can be well-paced without being hurried. We
therefore call upon all parties to these negotiations to
refrain from making the mistake of putting them on a
"'hurried" track.
•

For these reasons, despite the fact that my delegation is
present today, in the future, the United States will be
unable to support "informal" inter-sessionals that seek
to advance unhelpfully the pace of these negotiations.

• Turning to the Chairman's paper prepared for this
session and the Chairman's report of the first session,
those reports do not adequately address the genuine and
on-going concerns that some delegations (the U.S.
inclUded) have about certain concepts and provisions
discussed in these negotiations to date.
• Working group documents should adequately reflect
divergent views on issues, particularly where such views
are strongly-held by State delegations, as is the case
here.
• To this end, we propose that working documents of these
negotiations should contain "brackets" around
controversial or unagreed concepts, provisions and words
to fairly reflect that there are divergent views
expressed by delegations and to memorialize different
options delegations may wish to consider.

• Turning to substance, we wish to reiterate points raised
last January and to highlight major concerns about the
following themes and provisions, while reserving until a
later date other substantive concerns we wish to raise.
• A legal instrument on "forced disappearance" can, and
should, be flexible enough to accommodate States whose
criminal statutes already comprehensively cover and
punish the offense, without the need to enact additional
legislation.

UNCLASSIFIED

L0547

UNCLASSIFIED

• Bearing this in mind, criminalization of forced
disappearances would be better framed in terms of "acts"
of forced disappearance, which is similar to the approach
taken in penalizing "acts of torture" in the Convention
Against Torture (CAT Article 2(1)). Taking this adaptive
approach would be both effective and eliminate the need
for radic~l reform of criminal codes (at least for some
States) who would otherwise be required to create a
newly designated crime of "forced disappearance."
• The proposed definition of "forced disappearanc~' to
include a "deprivation of liberty in whatever form'
suffers from being overbroad, vague, and unworkable in
the context of defining a criminal offense.
• The extraordinary breadth of this phrase seems to
extend far beyond the deplorable practice of a forced
disappearance which is the target of the proposed
instrument.
• The vagueness of the term could cause constitutional
problems in certain criminal justice systems and be
invalidated by national courts under a "void for
vagueness" doctrine.
• The breadth and vagueness combined would invariably
and inappropriately capture within its scope
legitimate law enforcement and security activities.
• The definition of forced disappearances should also be
limited to State actors, as inclusion of actiVities by
.private groups fundamentally alters the scope and nature
of the instrument. Although any proposed instrument
would·contain elements of international criminal law; it
is at its core a human rights instrument primarily
governing the conduct of States.
• A statute of limitations provision should require that
the prescription period "be commensurate with the
seriousness of the offense." This formula was also
supported by some other delegations last January but was
omitted from the Chairman's most recent Report.
• We strongly oppose a provision that would bar special
jurisdiction tribunals, including military tribunals or
commissions
Among other reasons, such an approach
erroneously implies that military proceedings are
inferior or are inherently incapable of ensuring minimum
standards of due process by comparison to regUlar
civilian courts. Should the instrument contain a
prohibition relating to tribunals, it should bar "sham'

UNCLASSIFIED

L0548

UNCLASSIFIED

•

•

•

•
•

•

proceedings, regardless of their nature, and not target
lawful military tribunals in which due process guarantees
are provided.
We would strongly oppose a death penalty provision or any
other restrictions on sentencing.
• We note, in this regard, that other human rights
treaties, including the Convention against Torture, do
not limit punishments for perpetrators.
• The focus should be on the human rights of the
disappearance victims and their families, not on the
perpetrators. In these negotiations, we need to bear
in mind that we are not· trying to elaborate a criminal
law enforcement instrument but rather one that
principally addresses human rights.
We would strongly oppose jurisdictional provisions that
reach beyond those contained in, for example, the
Optional Protocol to the eRC on Child Sale, Prostitution
and Pornography.
• Article 4 of the Optional Protocol requires that a
State Party establish jurisdiction over covered
offenses committed in its territory (or on board a
ship or aircraft) and permits jurisdiction for
offenses committed by or against nationals.
• The Optional Protocol also requires States Parties to
prosecute alleged offenders "present in" its territory
when·the State refuses extradition on the ground that
the offense has been committed by one of its
nationals.
We would strongly urge excluding from the scope of the
instrument any activities governed by international
humanitarian law. In addition, a significant overall
concern is that the proposed treaty not cover or
otherwise prejudice legitimate law enforcement and
national security activities.
Mandatory site visits would be problematic and subject to
abuse.
Any provisions addressing a superior orders defense would
have to be closely studied with a view to: a)governing
national law and practice on the subject; b) the
lawfulness of the orders; c) applicable international
law; and d) the need to avoid unfairly accusing innocent
subordinate actors by ensuring that each accused had in
fact the requisite intent (mens rea) to warrant
prosecution.
A provision prohibiting reservations would be
unacceptable.

UNCLASSIFIED
L0549

UNCLASSIFIED

• Such a prohibition is not necessary as reservations
that would defeat the object and purpose of the treaty
would not be permitted.
• Properly tailored reservations are essential to enable
many countries t9 become party to treaties. Creating
a prohibition would thus be counterproductive to the
'goal of,achieving broad international participation in
a treaty regime.
• We would oppose the creation of a new treaty monitoring
body and believe that existing treaty bodies (e.g., the
HRCommittee) should be considered as the appropriate
mechanisms for monitoring implementation by States
parties.
• These are only the most serious concerns of our
Government. Other issues of notable concern are raised
by provisions relating to a centralized registers of
names, pardons and amnesties, reparations, standing to
raise complaints, funding, and entry into force
provisions, among others.

•

In sum, the Working Group has a formidable task ahead of
it to elaborate a document that truly seeks to enjoy
widespread acceptance within the international community.

UNCLASSIFIED

L0550

UNCLASSIFIED

Drafted:

L/HRR - Gilda Brancato

Cleared:

L/HRR - Robert Harris - ok
IO/SHA - Tom Johnson - ok
DRL/MLA - Chris Camponovo - ok
US Mission/L - Mike Peay - ok (8/29/03)

Cc:

x 72773

8/26/03

113465

L - Sam Witten
L/LEI - Linda Jacobson
L/PM - Chip Brooks
10 - Jackie Sanders, Mark Lagon
IO/SHA - June Carter Perry
DRL/MLA - Lynn Sicade

UNCLASSIFIED

L0551

UNCLASSIFIED
RELEASED IN FULL

LC£I"

E/CNA12006157
page 31

!

'I,

\

Article 2
For the purposes of this Convention, enforced disappearance is considered to be the
arrest, detention, abduction or any other fonn of deprivation of liberty committed by agents of
the State or by persons or groups of persons acting with the au\horization, support or
acquiescence ofthe Stale, followed by a refusal to acknowledge the deprivation of!iberty or by
concealment of the fate or whereabouts of the disappeared'person, which place such a person
outside the protection of the law,
Artic'le 3
Each State Party shall take appropriate measures to investigate acts defined in article 2
committed by persons or groups ofpersons acting without the authorization, support or
acquiescence ofthe State and to bring those responsible to justice.
Artkle4
Each State Party shall take the necessary measures to ensure that enforced disappearance
constitutes an offence under its criminal law.
Article 5
The widespread or systematic practice of enforced disappearance constitutes a crime
against humanity as defined in applicable international law and shall attract the consequences
provided for under such applicable intemationallaw.
Article 6
1.

Each State Party shall take the necessary measures to hold criminally responsible at least:

to

(a)
Any person who commits, orders, solicits or induces the commission of, attempts
commit, is an accomplice to or participates in an enforced disappearance;
(b)

A superior who:
(i)

,Knew, or consciously disregarded information which clearly indicated,
that subordinates under his or her effective authority and control were
committing or about to commit a crime of enforced disappearance;

(ii)

Exercised effective responsibility for and control over activities which
were concerned with the crime of enforced disappearance; and

(iii)

Failed to take all necessary and reasonable measures within his or her
power to prevent or repress the commission of an enforced disappearance
or to submit the matter to the competent authorities for investigation and
prosecution;

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0552

UNCLASSIFIED ........

RELEASED IN FULL

HUMAN RIGHTS

Ch. 1

aliens rna\' not be denied education
. 'provided 'for other children).' See
also Serrano v. Priest. 5 Ca\.3d 584.
96 Cal.Rptr. 601. 467 P.2d 1241
(1971). appeal a/tel' remand, 18
CaLM 728, 135 CaLRptr. 345. 557
P.2d 929 (1976), certiorari denied,
432 U.S. 907, 97 S.Ct. 2951. 53 L.Ed.
2d 1079 (1977) (education is fundamental right under California Constitution). Except for tho,:;e few
rights that require no affirmative
governmental action. but only abstention from interference, e,g., the
right to join a trade union, Art. 8(1)
(a), the provisions of this Co\'enant
are inherently !1on·self~ex.ecuting,
See § 111(3), (4). By adhering to
this Covenant, the United States
would be obligated to take legislative, executive, and other measures,
federal or State. generally of the
kind that are already common in the
United States, "to the maximum of
its available resources," "with a
yie\\.· to achie\'ing progressively the

§ 702.

i.e-gAo:
N~ \7Ln,\'\t!~1 (' rh(ci)
§ 702

full realization" of those rights.
Since there is no definition or standard in the Covenant, the United
States would largely determine for
itself the meaning of "full realization" and the speed of realization,
and whether it is using lithe maximum of its available resources" for
this purpose. The United States
would, howe\·er. be required to sub~
mit reports for consideration by the
United Nations Ec'onomic and So~ial
Council "on the measUres which
they have adopted and the progress
made in achieving the observance of
the rights recognized" in the Covenant. Art. 16.

9.. Previous Restatement. The
prevkn:s Restatement referred to
human rights in relation to the in~
ternational standard of justice protecting aliens. See § 165, Comment
b. Section 116, Reporters' Note, refers to the propriety of dealing with
human rights by treaty..

Customary International Law of Human Rights
A state violates international law if, as a matter of

state

poH~;.r,

it practices, encourages, or condones

(a) genoci de,
(b) slavery' or slave trade,
(c) the murder or causing the disappearance of individuals.
(d) torture or other cruel, inhuman. or degrading

treatment or punishment.
prolonged arbitrary detention.
(f) systematic racial discrimination. or
(g) a consistent pattern of gross violations of inlt'rnationaHy recogn\zed human right$.

(e)

Comment:

a. Scope of customaty Imc of human rights. Tbis section
includes as customary law only tbose buman rights whose status as
customary law is generally accepted (as of i9S,) and whose scop'
161
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AiIMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0553

G-Cj)1

UNCLASSIFIED
Ch'ilians

selves in the territory of a belligerent State, and nationals of a
cO-belligerent State, shall not be regarded as protected persons while
the State of which they are national~ has normal diplomatic representation in the State in whose hands they are.
The provisions of Part II are, however, wider in application, as
defined in Article 13.
Persons protected by the Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the
Field of August 12, 1949, or by the Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea of August 12, 1949, or by the
Geneva Convention relative to the Treatment of Prisoners, of War
of August 12, 1949, shall not be considered as protected persons
within the meaning of the present Convention.

cter
ties,

urn,
ling

nns
de-

• be
!ded
, or
propect
f all

:ecu~

larly
ltees
?les.

,

.. om~

) the
. into

.,'\

under the present Convention.

pro-

- In each case, such persons shall nevertheless be treated with
humanity, and in case of trial, shall not be deprived of the rights
of fair and regular trial prescribed by the present Convention. They
shall also be granted the full rights and priVileges of a protected
person under the present Convention at the earliest date consistent
with the security of the State or Occupying
Power, as the case may be.
,

the

given
LSe of
ict or

n are
:hem-

.,:.

Article5
Where, in 1.1)e territory of a Party to the conflict, the latter is
satisfied that an individual protected person is definitely suspected
of or engaged in activities hostile to the security of the State, such
individual person shall not be entitled to claim such rights and
privileges under the present Convention as would, if exercised in
the favour of such individual person, be prejudicial to the security
of such State.
Where in occupied territo . an individual rotected, erson is
detained as a spy or saboteur,
as a person under definite suspicion
of activity hostile to the security of the Occupving Power, such
person shall. in those cases where absolute militarv securitv so
requires, be regarded as having forfeited rights of communication

Iting

t

303

.:

Article 6
The present Convention shall apply from the outs.et of any conflict
or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the
present Convention shall cease On the general close of military
operations.

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"

10.
Requests the Office ofthe High Commissioner to provide for the Commission at
its Sixty-third session an updated version of the report requested in resolution 2003/33;
I I.
Decides to consider this question at its sixty-third session under the same
agenda item.

LCG3

56th meeting
19 April 2005
[Resolution adopted, without a vote.
See chap. XI, par.s. 282 to 284.J

,2005127. Enforced or involuntary disappearances

The Commission on Human Rights,
Recalling its res~lution 20 (XXXVI) of29 February 1980, in which it decided to
establish a working group,
Recalling also General Assembly resolution 47/133 of 18 December 1992, by which the
Assembly adopted the Declaration on the Protection of All Persons from Enforced
Disappearance as a body of principles for all States,
.
Deeply concerned in particular by the increase in enforced or involuntary disappearances
in various regions of the world, including arrest, detention and abduction, when these are part of
or amount to enforced disappearances, and by the growing number of reports concerning
harassment, ill-treatment and intimidation of witnesses of disappearances Or relatives ofpersons
who have disappeared,
Acknowledging the fact that acts of enforced disappearance are crimes against humanity,
as defmed in the Rome Statute of the International Criminal Court (AfCONF.l83/9),
1.
Takes note of the report submitted by the Working Group on Enforced or
Involuntary Disappearances (E/CN.4/2005/65 and Add.I);

2.
Stresses the importance ofthe work of the Working Group, and encourages it to
pursue the execution of its mandate:
(a)
To continue to promote communication between families of disappeared persons
and the Governments concerned, particularly when ordinary charmels have failed, with a view to
ensuring that sufficiently documented and clearly identified individual cases are investigated and
to ascertain whether such information falls under its mandate and contains the required elements;

(b)
To continue to observe, in its humanitarian task, United Nations standards
and practices regarding the handling ofcommunications and the consideration of
government replies;

lID
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
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UNCLASSIFIED

(c)
To continue to consider the question ofimpunity in the light of the relevant
provisions of the Declaration on the Protection of All Persons from Enforced Disappearance and
of the final reports submitted by the Special Rapporteur appointed by the Sub-Commission on
the Promotion and Protection of Human Rights;

(d)
To continue to pay particular attention to cases of children subjected to enforced
disappearance and children of disappeared persons and to cooperate closely with the
Governments concerned in searching for and identifying these children;

(e)
To pay particular attention to cases transmitted to it that are most urgent from a
humanitarian perspective and that refer to ill-treatment, serious threatening or intimidation of
witnesses of enforced or involuntary disappearances or relatives of disappeared persons;

(j)
To pay particular attention to cases ofdisappearance of persons working for the
promotion and protection of human rights and fundamental freedoms, wherever they occur, and
to make appropriate recommendations for preventing such disappearances and improving the
protection of such persons;
(g)
To continue to apply a gender perspective in its reporting process, including in
information collection and the formulation of recommendations;
(h)
To provide appropriate assistance in the implementation by States of the
Declaration and of the existing international rules;
.

(I)
To continue its deliberations on its working methods and to include these aspects
in its report to the Commission at its sixty-second session;
3.
Deplores the fact that some Governments have not provided for a long period of
time substantive replies concerning claims of enforced disappearances in their countries and
have not given due consideration to relevant recommendations concerning this subject made in
the reports of the Working Group;

4.

Urges States:

(0)
To promote and give full effect to the Declaration on the Protection of All
Persons against Enforced Disappearance;

(b)
To cooperate with the Working Group and help it to carry out its mandate
effectively and, in that framework, give serious consideration to requests for visits to their
countries;

(c)
To prevent the occurrence of enforced disappearances, including by guaranteeing
that any person deprived of liberty is held solely in officially recognized and supervised places of
detention, guaranteeing access to all places of detention by authorities and institutions whose
. competence in this regard has been recognized by the concerned State, maintaining official,
accessible, up-to-date registers and/or records of detainees and ensuring that detainees are
brought before a judicial authority promptly after detention;

'I

III

UNCLASSIFIED

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UNCLASSIFIED

(d)
To work to eradicate the culture of impunity for the pelJletrators of
enforced disappearances and to elucidate cases of enforced disappearances as crucial steps
in effective prevention;
(e)
To prevent and investigate with special attention enforced disappearances of
persons belonging.to vulnerable groups, especially children, and to bring the pelJletrators of
these enforced disappearances to justice;

if)
To take steps to provide adequate protection to witnesses of enforced or
involuntary disappearances, human rights defenders acting against enforced disappearances, and
the lawyers and families of disappeared persons against any intimidation or ill-treatment to
which they might be subjected;

5.

Urges the Governments concerned:

(a)
To i1ltensify their cooperation with the Working Group on any action taken
pursuant to recommendations addressed to them by the Working Group;
(b)
To continue their efforts to elucidate the fate of disappeared persons and to ensure
that competent authorities in charge of investigation and prosecution are provided with adequate
means and resources to resolve cases and bring perpetrators to justice;
(c)
To make provision in their legal systems for victims of enforced or involuntary
disappearances or their families to seek fair, pro1Upt and adequate reparation and in addition,
where appropriate, to consider symbolic measures recognizing the suffering of victims and
restoring their dignity and reputation;
(d)

To address the specific needs ofthe families of disappeared persons;

6.

Reminds States:

(a)
That, as proclaimed in article 2 of the Declaration on the Protection of All Persons
from Enforced Disappearance, no State shall practise, permit or tolerate enforced
disappearances;

(b)
That all acts of enforced or involuntary disappearance are crimes punishable
by appropriate penalties which should take due account of their extreme seriousness under
penal law;
(c)
That they should ensure that their competent authorities proceed immediately to
conduct impartial inquiries in all circumstances where there is reason to believe that an enforced
disappearance has occurred in territory under their jurisdiction;
(d)
That, if such belief is borne out, all the perpetrators of enforced or involuntary
disappearances must be brought to justice;

112

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"

(e)
That impunity is simultaneously one of the underlying causes ofenforced
disappearance and one of the major obstacles to the elucidation of cases thereof;

if)
That, as proclaimed in article II of the Declaration, all persons deprived of liberty
must be released in a manner permitting reliable verification that they have actually been
released and, further, have been released in conditions in which their physical integrity and
ability fully to exercise their rights are assured;
7.

Expresses:

(a)
Its thanks to the many Governments that have cooperated with the
Working Group and replied to its requests for information and to the Governments that have
accepted visits of the Working Group to their countries, asks them to give all necessary attention
to the Working Group's recommendations and invites them to inform the Working Group of any
action they take on those recommendations;
(b)
Its appreciation to the Governments that are investigating, are cooperating at the
international and the bilateral levels, have developed or are developing appropriate mechanisms
to investigate any claims of enforced disappearance that are brought to their attention, and
encourages all the Governments concerned to expand their efforts in this area;
8.
Invites States to take legislative, administrative, legal and other steps, including
when a state of emergency has been declared, to take action at the national and regional levels
and in cooperation with the United Nations, if appropriate through technical assistance, and to
provide the Working Group with concrete information on the measures taken and the obstacles
encountered in preventing enforced or involuntary disappearances and in giving effect to the
principles set forth in the Declaration;

9.
Takes note of the assistance provided to the Working Group by non-governmental
organizations and their activities in support of the implementation of the Declaration and invites
those organizations to continue their cooperation;
10,
Acknowledges the improvement in the staffmg granted to the Working Group and
requests the Secretary-General:
(a)
To ensure that the Working Group receives all the assistance and resources it
requires to perform its function, including supporting the principles of the Declaration, carrying
out and following up on missions and holding sessions in countries that are prepared to
receive it;
(b)
To prOVide the resources needed to update the database on cases of
enforced disappearance;

(c)
To keep the Working Group and the Commission regularly informed of the steps
taken for the wide dissemination and promotion of the Declaration;

II.
Requests the Working Group to report on its activities to the Commission at its
sixty-second session;

113

UNCLASSIFIED

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UNCLASSIFIED

..

12.
Takes note of the report ofthe Intersessional open-ended working group to
elaborate a draft legally binding normative instrument for the protection of all persons from
enforced disappearance (EiCNAI2005166) and welcomes the additional substantial progress
made during the third and fourth sessions of the intersessional working group and, in that
context, welcomes the participation ofnon-governmental organizations;

13.
Requests the intersessional Working Group to meet for a period of 10 working
days in one formal session before the end of 2005 with a view to the completion of its work, and
to report to the Commission at its sixty,second session;

14.
Requests the Chairperson-Rapporteur ofthe intersessional Working Group to
undertake informal consultations with all interested parties in order to prepare the next session of
the intersessional working group;
15.
Requests the United Nations High Commissioner for Human Righti to invite the
former independent expert to examine the existing international criminal and human rights
framework for the protection of persons from enforced or involuntary disappearance, the former
Chairman-Rapporteur ofthe sessional working group on the administration ofjustice ofthe
Sub-Commission on the Promotion and Protection of Human Rights, who submitted to the
sessional working group in 1998 a draft international convention on the protection of all persons
from enforced disappearance (E/CNAISub.2/1998/19, annex), and also a representative of the
Working Group on Enforced or Involuntary Disappearances to participate in the activities of the
intersessional working group;
16.

Decides to consider this matter at its sixty-second session under the same

agenda item;

17.
Also decides to recommend to the Economic and Social Council the following
.
draft decision for adoption:
[For the text, see chap. I, sect. B, draft decision 8.J
56th meeting

19 April 2005
[Resolution adopted without a vote.

See chap. Xl, paras. 285 to 289.]

2005/28. Arbitrary detention
The Commission on Human Rights,
Reaffirming articles 3, 5, 9, 10 and 29, as well as other relevant provisions of the
Universal Declaration of Human Rights,
Recalling articles 9to II and 14 to 22 of the International Covenant on Civil and

Political Rights,

114

UNCLASSIFIED

I
I

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RELEASED IN FULL

DEPARTMENT OF STATE

LG76

OFFICE OF THE LEGAL ADVISER
HUMAN RIGHTS AND REFUGEES

L/HRR, ROOM 3422
2201 C STREET, N.W.
WASHINGTON, D.C. 20520-6310

Fax
To:

From: Gilda Brancato

Fax:,

Fax:

Phone: '

Phone: (202) 647-4065 or x 72773

Pages:

Date:

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(202)736-7028

L0560

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RELEASED IN FULL

Cont i rmat Ion Report - Memcr-y' Send

Time
Tel line

: Oec-09-2005 03:44pm

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,Job number

963

Date

Dec-09 03:43pm

To

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Document pages

:, ,004,

Start time

Oec-09 03'43pm

End time

Dec-09 03:44pm'

Pages sent

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Job number

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UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE-ID, 13 AUG 2009 200706444

UNCLASSIFIED
L0561

UNCLASSIFIED
RELEASED IN FULL

DEPARTMENT OF STATE
OFFICE OFTHE LEGAL ADVISER
HUMAN RIGHTS AND REFUGEES

L/HRR, ROOM 3422
2201 C STREET, N.W.
WASHINGTON, D.C. 20520·6310

Fax
From:

Gilda Brancato

Fax: ' (202)736-7028
Phone: (202) 647-4065 or x 72773

Pages:
SUBJECT:

Date:
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORI1Y: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

COMMENTS:

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THEMIS~NG
the right to know
The Missing:
Action to resolve the problem of people unaccounted for as a result 'of armed conflict or internal violence

and to assist their lamme.

International Conference of Governmental and Non-Governmental Experts
Geneva. 19 • 21 February 2003

OUTCOME
Working Group on the Observations and Recommendations
Report by the Chairman to the Plenary .
Mr Nicolas Michel, Director, Directorate of Public International Law, Federal Department of
Foreign Affairs, Switzerland

Observations and Recommendations
Adopted by Consensus on 21 February 2003

GenGva~

February 2003

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

UNCLASSIFIED
L0563

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Page2n

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UNCLASSIFIED

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.
The Missing:
Action to resolve the problem of people unaccounted for as a result of armed conflict or Internal violence

and to assist their famUles
International Conference of Governmental and Non-Governmental Experts
Geneva, 19 • 21 February 2003
Working Group on the Observations and Recommendations . .
Report by the Chairman to the Plenary
. Mr Nicolas Michel, Director, Directorate of Public International Law, Federal Department of Foreign
Affairs, Switzerland

The objective of the Working Grou'p was to have an overview of the Observations and Recommendations1 , to

l\

share considerations on this document's relationship to the process launched by the leRe on The MissIng. and
to comment upon and clarify ils text The Working Grou~t<intended to be a forum for negotiations, JJWb.e
en aUons to be a I
I bi
. u
t. There was a common understanding that
Observation and Reco

the

servations and Recommenda cns shoUld not be interpreted In anyway as undermining existing legal

"standards. The .Observations and Recommendations should be seen as an operatiol)al tool containing practical
1 measures.
As it was understood that the Observations and Recommendations were to be adopted by consensus, additional
comments and proposals on thiS text had to be presented In a separate but related document. These comments
and proposals are presented in this Report, which is part of the official Acts of the Conference. The Observations
and Recommendations are to be read together with this Report.
The Working Group was open to all Conference participants and was well attended. As the Chairman of the

Working Group, my role was enormously facilitated by the positive and constructive atmosphere prevailing during
our work.
The substantive work of the Working Group began with a presentation demonstrating the links ~tween the
contents of the Observations and Recommendations and the ICRC Report: The Missing and Their FamiliesSummary of the Conclusions arising from Events held pnbr to the IntemaUonal Conference of Govemmental and
Noni/ovemmental Experts (19-21 February 2003f. The Working Group then proceeded to discuss each section
of the text In order to obtain clarifications and exchange views. I will do my best to reflect the main points.
Many participants expressed their gratitude for th~ work done by the governmental and non-governmental .
experts as wen as by the JeRe in the preparation of the text and for the text's added value. which will stimulate all
actors in better understanding and implementing the full spec1rum of operational best practices related to the
problem of persons unaccounted for. It was repeated that the Obse!vafions and Recommendations should be!l/
seen as a focal point for future practical action.
.
'II
During the discussion, it was 'recalled that the term "missing persons" should be understood in its broadest
sense, Missing persons or persons unaccounted for are those whose families are without news of them and/or
are reported missing on the basis of reliable information. People become unaccounted for d4e to a wide variety of
circumstances. such as dIsplacement, whether as an intemally displaced person or a refugee; being killed in
action during an armed conflict, or forcibly or Involuntarily disappearing. Partlcular attention was drawn to the
vUlnerability of children, and it was said that. in addition to the term "unaccompanied children" used in the text,
reference to the tenn "separate~ chilarsn" should also be made. Regardless of the circumstances for which a
person becomes unaccounted for, the famllies need to know the fate of their relative. However, different
approaches are needed to handle the varied circumstances.

I

Because of the reference to armed conflict and internal violence in the text; several participants raised the

question whether all persons unaccounted for are covered by the Observations and Recommendations. Armed
conflict and internal violence take place in a large number of contexts in the world today, and most circumstances
in which persons become unaccounted for occur in these situations. Nevertheless. it was emphasized that the
work of the experts in this process on The Missing may, in fact, be used in efforts concerning persons missing in
all situations. if appropriate.
. '

I
{

The need to recognize the universal right to know was strongly advocated. Numerous participants affil1'l1ed its
existence and customary character; others specificalfy'r~ferred io regional and domestic jurisprudence on the
right to know. It was also affirmed that the right to know can, in addition to the specific reference in Art. 32 of the
, TheMisslng/Conf/02.2003lEN/1
21CRClTheMlssingl01.2003fENf10

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Working Group o'n the Observations and Recommendations

Report by the Chalnnan to the Plenary

First AddlUonal Protocol of 1977 applicable in intemational armed conflicts, be deduced from the Geneva
Conventions' general obligations to provide information on detainees and internees, thus. demonstrating the
( existence of the families' right to know. In addition. the fight to know was compared with other rights, such as the·
right to health, as not being obligations of resun. This means that In 1he face of proven impossibility to provide
information. there could be no violation of the right to know, These delegations were in favour of introducing
stronger language On the right to knoW, However, other participants made the reminder that the Working Group
was discussing a consensus""Orientated text in a forum with inherent limitations, as there are representatives of
States, inter-government31 organisations and non-govemmental organisations as well as independent experts
involved, These participants expressed the view that not all agree that there is a universal right to knOw; they
mentioned that not all Stafes adhere to the'Fi"t Additional Protocol of 1977 and some debate the customary
character of this right.

~

Some participants spoke of the essential role played by National Societies of the Red Cross and Red Crescent In
the clarification Of the tafe of missing persons by the reestablishment of family links (RFL) and throu9h tracing
programs. Addressing the problem of The Missing at the International Conference of the Red Cross and Red
Crescent to be held in Geneva in December. 2003, will further stress this issue's importance and facilitate'
coordinated action.
When referring to preventive measures, the need for effective protection was emphasized, When discussing
Internationally recognized standards On the deprivation of liberty, it was recalled that the right to ,access to justice,
Including habeas corpus, must be respected in all clrcumstances. In addition, as the text makes specific mention
of international humanitarian and human rights law, It was suggested to also refer to refugee faw..
It was further said that preventive measures must and can indeed be taken by armed groups. Unless armed.
groups are included in the solutions, the problem of missing persons will be far from adequately addressed.
Obligations foreseen by international humanitarian law applicable in non~intemational anned conflicts are equally

addressed to States and armed groups takIng part in the conflict. Practical means, taking into account the
spec1f1clties of armed groups, should be explored and developed. including In eoopera1ion with these groups.
Regarding the clarlfication of the fate of persons unaccounted for. it ~as repeated that clarification entails fUlly
elucidating t.he fate, including the whereabouts and,if dead;the cause of death. In order to maximize the
effectiveness in clarifying the fate of persons unaccounted for, the proper handling of personal information is
essential. tt was highlighted that the information collected be used only for the humanitarian purpose for which it
was collected, so as not to on~ agal" sacrifice the dignity of the persons concerned. The need for special
safeguards on personal data and the need to respect the relevant standards and principles on the protection of
personal data were stressed. It was also stated that Information must be properly preserved for historical and
research purposes.
While recognizing that Infonnatlon on the fate of a missing relative is essential for the family, several particlpants
made the reminder that the other needs of the families must not be ignored. For example, if the missing family
.
member is dead. the swift return of the human remains is fundamental to many familfes in order for them to
complete the mourning process. The needs of the families for aCknowledgement and accountability were referred
to. With respect to accountabmty, n was clarified that in the text "government authorities~ includes the judiciary.

Desplle the fact that many participants would have preferred the use of stronger language. the Observa ricms and
Recommendations will nOUrish this process on resolVing the problem of people unaccounted for as a result of
armed conflict and internal violence and to assist their fammes. This process Is complementary to others. As an
example, speciflc reference was made to the UN inter-sessional operrended working group on a draft legally
binding normative instrument for the protection of aft persons from enforced disappearances.
Certain participants referred to the lack of resources as a main reason for not correctly dealing With the issue of
missing persons. For instance, wIthout adequate resources the often very expensive methods necessary to
Identify the dead ere not used. nor are means of personal identification easily available.
Finally. it has been reaffinned that the issue of missing persons and their families must be appropriately
addressed. Further social stigmatisatlon of farr11les of missing persons will thus be avoided. Those responsible
can no longer Ignore missing persons or their families.

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The Missing:
Action to resolve the problem of people unaccounted for as a result of armed conflict or il.ltemal violence:
and to assist their families

International Conference of Governmental and Non·Governmental Experts
Geneva, 19 • 21 February 2003
Observations and Recommendations
Adopted by Consensus on 21 February 2003
The participants in this Conference
(I.)

Appreciating and drawing upon the process launched by the International Committee of the Red Cross
(iCRC) on the "Missing and their Families" and recognising the Importance of exploring, and heightening
International awareness of, the problem of people unaccounted for as a result of armed conflict or internal

violence3,

·

.... "',

.

.

(it)

RecognIsing that uncertainly about the fate of their family members is a harsh reality for countless
families. Including relatives and close friends. \yhich are thus themselves victims of the situation,

(III.)

Recognising that "nff! they know whether their family members are alive or dead, families are unable to
gain closure on the violent events that disrupted their lives and to move on to personal or community
rehabititatlon and reconciliation,

(IV.)

Alarmed that the resentment caused by the humiliation and suffenng of families and neighbours often
undermines relations between communities for future generations,

(V.)

Aware that preventing persons from becoming unaccounted for and addressing the consequences when
they occur are complex tasks that involve numerous actors and require coordination,'

(VI.)

Having regard to the relevant international instruments and standards of international humanitarian and
human rights law and aware that the Uniled Nations and the International Conferences of the Red Cross
and Red Crescent have addressed this topic and continue to do so,

'J

(VII,) Convinced of the need to take action to prevent persons from becoming' unaccounted for, to ascertain
their fate, to assist their families and to boid accountabie those responsible for events leading to persons
becoming unaccounted for,
Make the following observations and recommendations and encourage their dissemination and
application:

1.

It is essential to protect all persons from becoming unaccounted for, without distinction as to the deliberate
or incidental character of the events leading 10 the persons becoming unaccounted tor.

2.

It is essential'that families are allowed to know the fate, including the whereabouts and, if dead, the cause
of death. of their famlly members who are unaccounted for.

3.

The principal responsibility In preventing all persons from becoming unaccounted for and in ascertaining the
fate of all those unaccounted for as soon as reported missing lies with government authoritfes; armed
groups also have a responslbllity in this regard.

4.

Inter..govemmental organisations and the leRe, acting in conformity with their tespective mandates. shOUld
be available to support government authorities and armed groups in fulfilling their responsibilities. and.
when they cannot or will not meet their responsibifities, inter-govemmental organisations and the leRe
should act accordingly.

5.

Non..governmental organisations. acting In accordance with their own mandates, should maximize efforts to
prevent persons from becoming unaccounted for and to clarify the fate of those who have become
unaccounted for.
.

6.

It Is essential that all those involved respect each In?ividual's inherent human dignity in all circumstances,

For the purpose of these Observations and Recommendations. itlternal violence means internal disturbances (internal strife)
and situations requiring a specifically ne1,Jtral and Independent institution and Intermediary in conformity with the Statutes of the

3

article 5(2)(d) and 5(3}, adopted by the Twenty.fiflh International
Conference aftha Red Cross at Geneva in October 1986 and amended by the Twenty.sixth International Conference of the
Red Cross and Red Crescent at Geneva in December 1995.
Internatronal Red Cross and Red Crescent Movement,

@TheMlsslng/Conf/02.2003IEN/1 (Original: English) - 21.02.2003

Page 5i7

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UNCLASSIFIED
Observations and Recommendations
Adopted by Consensus on 21 February 2003

7.

Every effort should be made to respect the cultural, social and religious or spiritual context specific to each

situation.

8.

Prevention
Respect for international hu'manitarian and human rights law is fUndamental in preventing persons from
becoming unaccounted for. It is important that fUll Jmplementation by States Parties and dissemination of
these obligations be ensured. Preve!1five measures that can be taken include:
8.1 providing means of personal identification to all members of the armed forces and armed group~:
8.2 making means of personal Identification easily available to all concerned persons;
8.3' respecting Internationally recognIsed standards regarding the deprivation of Uberty, providing
immediate notification to families, counselor other persons having a legitimate Interest in the detained
persons and preventing extra~judiclal executions, torture and detention 1n secret locations;
8.4 ensuring that family members Wherever they m~y be, ineludlng members of armed forces or armed
groups and theJrfamny merrtbers, can communicate with ea~h ..~~~~arLlnterv~J!\; ..'~ )lIt .1 ~"~

8.5 accountability, Including fighting impunity.
9.

Clarification of the fate of persons unaccounted for
It is crucial that families receive information on the individual fate of their unaccounted for family members.
The families and communities also, need both acknowledgment of the events leading to persons beco\Tling

unaccounted for and perpetrators held accountable. Measures that can be taken include:

9.1 government auihorttles and anned groups enabling independent InvesUgatlons to be carried out to
clarify the fate of parsons unaccounted for and to proVide inf~rmaUon;
9,2 avoidIng obstruction of, interferetlce with or impediments to the clarification of the fate of persons
unaccounted for;
9.3 setting up, whenever necessary, complementary mechanisms, judicial or non-judicial. to respond to

the families' needs;

9.4 addressing issues related to reparation;
9.5 providing to the family, In accordance to judicial guarantees and procedures and privacy rights, .
information collected during criminal investigations that sheds light on the fate of a person
unaccounted for.

10. Information management and the processing of flies on persons unacc::ounted for
COOrdination of the activities of all those involved and sharing informatidn wm heighten the effectiveness of
the acUon taken to ascertain the fate of persons unaccounted for. Measures that can be taken include:
10.1 ensuring that the information collected on persons unaccounted for be comprehensive, yet limited to
that which is necessary for the purpose identified and is impartially collected and processed;
10,2 sharing Information on the methods and objectives of the data collection and processing procedures
by those involved;
10.3 exchanging between those inVolved the information collected in a manner con5lst~nt with point 10.5
and witholJt endangering victims. the persons collecting the information or the sources of the
information;
10.4 centralising the information collected to increase the possibilities
fate' of their members, in particular by:

A.
B,

of informing the families about the

at the latest at the outbreak of an armed conflict, setting up an "Information Bureau to collect and
transmit Information;
forwarding to a neutral, impartial and independent humanitarian organisation, such as the ICRe,
personal Information that may serve to ascertain the fate of persons unaccounted for;

10.5 respecting the relevant standards and principles on the protection of personal information whenever
information. including medical and genetic Information, is managed and processed.

Page 617

©TheMisslng/Confl02.2003/ENI1 (Original: English) - 21.02.2003

UNCLASSIFIED
L0568

UNCLASSIFIED
Observations and Recommendations

Adopted by Consensus on 21 February 2003

11. Management of human remains and of Information on the dead
The prinoiple responsibility in the proper handling of ali the dead without adverse distinction and in
providing InformatJon to the families with a view to preventing anxiety and uncertainty ties with government
authorltles and armed groups, Measures that can be taken include:
11.1 ensuring that all feasible measures are taken to identify the human remains of those Who died and to
record their identity;
11.2 avoiding obstruction of, Interference with or impediments to the identIfication of human remains;

11.3 Issuing death oertificates;
11.4 ensuring that atl those Involved respect the legal rules and professional ethIcS applicable to the
management, exhumation and identification of human remains;

11.5 ensuring that forensic specialists, whenever possible. carry out the procedures to exhume and identify
human remains;
11.6 ensuring adequate training to all persons collecting information on the dead a~ handling human
remains;
.
11.7 beginning a process of exhumation and icJentification only once a framework: has been agreed upon by
aU those concerned and ensuring that the framework includes:
A. the establishment of protOCOls for eXhumation. ante mortem data collection, autopsles and
Identification based on:scientificafly valid and reliable methods and technologies and/or
customary, clinical or circumstantial evidehte that are deemed apprQpriate and which,have been
prevlousfyadopted by the sCientific community;
.
e. appropriate means of associating the communltie,s and the families in the eXhumation, autopsy
and Identification proc~dures;
C. procedures for handing over the human remains to the family:
11.8 respectIng and developing professional ethics and standards of practice for forensic specia6sts
working In International contexts.
12. Support for the femllles
The material. financlal, psychological and legal needs faced by famOies awaiting clarification of their famlly
members' fate should be addressed by the concerned authorities, when necessary with the support of intergovernmental and non·govemmental organisations as well as of the ICRC. Measures that can be 1aken
include:

12.1 providing targeted assistance with the aim, as soon as circumstances allow. of promoting the families'
self-suffiolenoy;
12.2 addressing the legal situation of persons unaccounted for and the consequences for family members,
including in terms of property administration. guardianship and parental authority;
12.3 ensuring children special support and protection, and in particular taking measures to reunite
unaccompanied children with their families;
12.4 ensuring that the needs of single heads of famOies be the object of special attention. taking Into
consideration the specific needs faced by women in SUch situations;
12,5 ensuring that the fammes of persons unaccounted for benefit from support programmes in order to
adapt to their altered situations and come to terms with the events; psychological support, and
whenever necessary and feasible psychiatric treatment, should be provided to those in need; all
programmes should be built, as much as possible. on the local health and healing systems;
12.6 encouraging family networks and associations, ~hich can provide a forum for mutual support.

13. Families and mourning
RespeCt for the dead and for local funeral rites supports peace and social order, The process by which the
families are informed that a family member has 'died and human remains and/or personal effects are
returned needs ta be wett prepared, to' addit!on:
13.1 the dead and the mourning practices of indiViduals and communities concerned need to be respected
in all circumstances;
13.2 commemorations. the planning and organisation of whIch should be left to the families and
communities concerned.,need to be supported.

@TheMissingIConfl12.2002lENI1 (Original: English) - 21.02.2003

Page 7(7

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EXPLANATIQN OF POSITION

Ll~ 10>

IlIfJ1$

The United States itpleased to join consensus.{._'.ikon this resolution

~!, ~~, f-'.-:'
)-=t;
1
.r~~"
. ",t<
t:>.

,,:e,1,

('r• 1:.'. :

addressing the serious problem of forced disappearances. With respect to
the instrument being drafted oX). the.disappearances issue, the United States

Govenunent supports treaty negotiations that are conducted in one annual
two-week fonnal session, which provides for 1Iansparency and inclusiveness
. of all negotiating partners. The objective must be to produce a well-drafted,
well-vetted instrument that reflects consensus, without deadlines for
completion of negotiations.
With respect to the resolution itself, The United States does not interpret the
cllsappearances resolution as an attempt to restate or affect provisions ofthe
law with regard to detention.

UNITED STA7I'Ell DEPAklfM~NT OF STATE
-....REVIEW ,WTH9RITY: SHARON.E Al:IMM> .
. DATE/Ct\SEID:13 AU9 2009 2007.064'44

Nnt I ~<~l\f~<l

..

'

UNCLASSIFIED. .'
' .

." ...

L0570

UNCLASSIFIED
RELEASED IN FULL

.'
,l-

I

/!

Dislr.
RESTRlCTED

ielif]

E/CN.4/2005/CRP.4
7 March 2005
Original: FRENCH
ENGLISH and FRENCH
ONLY
COMMISSION ON HUMAN RIGHTS
Sixty-first'session
14 March - 22 April 2005
Item II b) ofthe provisional agenda

CIVIL AND POLITICAL RIGHTS, INCLUDING TIlE QUESTIONS OF
DISAPPEARANCES AND SUMMARY EXECUTIONS

Working paper prepared by the Chairman of the Working Group .
to elaborate a draft legally binding normative instrument for the protection
of all persons from enforced disappearance, at the end of its 4'h session
(31 January - 11 February 2005)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 13 AUG 2009 200706444

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"

Page 2 of2

RELEASED IN PART
B5, B6

PAIL/IO:

LC'feB

BBC correspondent in Geneva Imogen Foulkes asked to interview Amb. Tichenor (on the record)

or our legal advisor (on background) for a BBC radio feature of 45 minutes on the draft
convention on enforced disappearances.

B5

Foulkes's question is: What is the U.S. position on the draft convention? She needs this by
is Tuesday (6/27). Others to be interviewed include NGO's, as well as other missions - esp. Chile
and Argentina given their past experiences.
Foulkes's cellphone number isl

IHer email address is

@bbc..cQ.uK .

·1

B6
B6

Please let PA Geneva know what is decided, and what is done.
- Brooks.

Brooks Anne Robinson
Counselor for Public AITairs
US

Mission, GOl1ev.

tel: 41-22-749-4360
h.t!:p;Ng~.'uJ.~X£l,J:1.~mJ.§$19.11:gQ.Y

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
DA~IOOOW: 18 AUG 2009 200706444

UNCLASSIFIED
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UNCLASSIFIED

RE: phone call with Legal Adviser Wednesday
..

~

Page I of 1

RELEASED IN PART
LC53.
B6

Brancato, Gilda M
From:

Imogen Foulkes I

I@bbc.co.uk]

Sent:

Wednesday, June 28, 2006 9:35 AM

To:

Brancato, Gilda M

B6
I

Subject: RE: phone call wittJ Legal Adviser Wednesday

B6,

Imogen Foulkes
BBC Geneva Correspondent
Office C 205 United Nations, Geneva

~

B6

I

-----Original Message----From: Brancato, Gilda M [m~H!R:!?J~J)cato.GM@st!!te. g01!]
Sent: Tue 6f27/2006 11:22 PM
To: Imogen Foulkes
Cc: Hata, Marianne J; Robinson, Brooks A; Prosser, Sarah E
Subject: phone call with Legal Adviser Wednesday
Dear Ms. Foulkes - Thank you for being available tomorrow for your
requested conversation on background with John Bellinger and me on the draft
Convention to Protect All Persons from Forced Disappearances. We are on Mr.
Bellinger's schedule to call you at noon Washington time, which would be 6
pm your time. I re:et that there was not an earlier time avaHable. We
will call you a~
~nJess you prefer a different number.
Look forward to ta mg wJln you then.

B6

Thank you, Gilda Brancato, Office of the Legal Adviser, Human Rights and
Refugees.

http://www.bbc.co.uk/
This e-mail (and any attachments) is confidential and may contain
personal views which are not the views of the BBC unless specifically
stated.
[fyou have received it in error, please delete it from your system.
Do not use, copy or disclose the information in any way 'nor act in
reliance on it and notifY the sender immediately. Please note that the
BBC monitors e-mails sent or received.
Further communication will signify your consent to this.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUfHORITY: JOHN S BLODGETT
D~~D: 18 AUG 2009 200706444

UNCLASSIFIED
L0573

UNCLASSIFIED
:,....-,

!---

lC::;8

Brancato! Gilda M

SUbject:

Robinson, Brooks A(GeneVa)
RELEASED IN PART
Wednesday, June 28, 2006 9:48 AM
Brancato, Gilda M; Hata, Marianne J
B6
Prosser, Sarah E; Kovar, Jeffrey D; DePirro, Velia M; Siekert,. Magda S; Cassel, Lynn L;
Denig, Paul; Wilbur, Richard M
About Wed BBC interview with Bellinger Adviser on enforced disappearances convention

Importance:

High

From:
Sent:
To:Cc:

- ,

Gilda / Marianne:
Thanks for putting this together.
I just called Imogen Foulkes, who confirmed she got Gilda's email (below) and will be ready for the call at noon DC lime;
she'll send you the land-line number she'd like you to use instead of her cellphone.
FYI: Foulkes said the focus of the program is less on governments / member states, and more on the families affected by
enforced disappearances, with examples coming primarily from Latin America and Sri Lanka.
At this point, her characterization of the USG position is along the lines of, "The US has expressed some reservations."
The point of interviewing John Bellinger is to get a bit more fiesh to that, and to have a USG voice characterize our position
- and not have only what human rights NGOs say about the US position.
Also, she said that since the Convention makes mention of secret places of detention, she needs US comment on that

Foulkes said the first project this will be for is BBC World TV and BBC Asia Today programs, which will probably be
broadcast Thursday 1)10rning. A version of the story is also likely be broadcast on BBC Radio when the Human Rights
Council concludes on the Convention. She thinks we should be able to find the listing (and maybe even video clip and/or
transcript) on BBC website tomorrow morning.
- Brooks

**********************
Brooh Anne Robinson
Counselor for Public Aflilirs
US Mission, Geneva
tol: 41-22-749-4360
http://geneva.usmission.gov

From:
Sent:
To:
Cc:

Subject:

Brancato, Gilda M
Wednesday, June 28, 2006 12:22 AM

I

{§lbbc.co.uk'

Hata, Marianne J; Robinson, Brooks Ai Prosser, Sarah E
phone call with Legal Adviser Wednesday

B6

Dear Ms. Foulkes - Thank you for being available tomorrow for your requested conversation on background with John
Bellinger and me on the draft Convention to Protect All Persons from Forced Disappearances, We are on Mr. Bellinger's
schedule to call you at noon' Washington time, which wouid be 6 pm your time. I regret that there was not an earlier time
available. We will call you atl
lunless you prefer a different number. Look forward to talking with you
then.
Thank you, Gilda Brancato, Office of the Legal Adviser, Human Rights and Refugees.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE m: 19 AUG 2009 200706444

UNCLASSIFIED
L0574

· Comcast Message Center.

UNCLASSIFIED

Page 1 of I

RELEASED IN PART
L
B6, B5
c 103>

From,,:~!§~~~~:;;~

To: C;
I Levinl@state.gov, AswadEM@state.gov, DePirroV@state.gov,
KovarlD@state.gov, BartonPl@tst=a=te~.g~ov=====J
Cc: BRANCATOGM@state.gov;!

B6

Subject: Re: Please read/change to disappearances statements

Date: Sun, 18 lun 2006 16:40: 1B +0000

Dear all· Best of luck at the HRC on Monday· it should be a wild ride (though
less wild than if we were a memberl! ) • let us know how we may be of help as the
session rolls on. Evelyn and I will aim to be on the morning phone calls, and thank
you Evelyn for the Geneva emails above.
lan and Velia . I sent out to you and a wide group the two HRC forced
disappearances convention statements for the USG (oral and written) as well as
two background documents by email Friday night. Please be sure to make the
followingl

B5

-,1 and I thank you. Please confirm receipt of
this email.
Best of lucki And thanks again, Gilda

7.:-~:--:-:;----

.............. Original message
From:

I

. h

•

I

B6

Hi, all - I'm just adding Gilda's home e-.
mail address as she would like to send you
gUidance on enforced disappearances by
Monday morning your time. Best, EA
Check out AOL.com .today. Breaking news, video search, pictures, email
and 1M. All on demand. Always Free.

[ Back]

.."

.'

.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOlIN S BLODGETT
DATE/CASE ill: 18 AUG 2009 200706444

UNCLASSIFIED
http://mailcenter.comcast.netlwmc/v/wml4495C6880000D9C700004B352207020853019...

6118/2006
L0575

UNCLASSIFIED

RELEASED IN PART
LC/37
B6

Brt.:l')cato; Gilda M lMain State)
From:

Sent:
To:

Cc:

Subject:

Brancato. Gilda M (Main State)
Wednesday. January 19, 2005 5:06 PM
Brooks, Waldo W; Johnson, Thomas A; Sicade, Lynn M (DRL); Manning. Denise; Barton,
Paula J; Danies. Joel D
Dorosin. Joshua L; Jacobson, Linda; Harris, Robert K; Barrios, Stacy M; Peay, T Michael;
Gale, Hanny; Kovar, Jeffrey D; Witten. Samuel M; Camponovo. Christopher N (DRL); Butler,
Michael A (DRL); Lucas. William E; Lagon, Mark P; Kozak, Michael G (DRL); Lega~L-HRR­
dl; Deeks. Ashley S
RE: URGENT/for transmission/USG redlines for forced disappearances treaty

r
Joel - Attached is a final paper, for Mission Geneva to transmit to the Frehch mission. on critical provisions ("red
lines") for the United States Government in negotiation of the forced disaPflearances treaty text, as requested by
the French chair.
. .
Please ensure that the paper is transmitted on Thursday Jan: 20, so that the French ambassador and his staff
~ave had the opportunity to review the paper prior to their treaty "pre-negotiation" on January 24.
which the OSG cannot attend. In this regard. after you submit the English text, it would be immensely helpful to
the French ambassador if the mission could provide an informal French translation, if possible. Thank you..

I

B6

Thank you Joel very much, and thank you to those who took the time to review the document on aJush basis.

~

LEGAL-#120776-vl

I.

Much appreciated, Gilda

-Force<Cdlsapp..,

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: ISAUG 2009 200706444

1

UNCLASSIFIED
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RELEASED IN FULL
U.S. Meeting with U.N. Committee Against Torture
Opening Remarks
Jobn B. Bellinger, In
Legal Adviser, U.S. Department of State
May 5,2006

LDlh

Mr. Chairman, Distinguished Members ofthe Committee,
Members of Civil Society and Other Observers,
My name is John Bellinger. I am the Legal Adviser of the Department of
State, and I serve as head ofthe United States delegation to the Committee
Against Torture.
The United States recognizes the importance of our international legal
obligations and the key role this Committee plays in the treaty-monitoring
process. The United States greatly appreciates this opportunity to meet with
the'Committee and to explain the measures we have taken to give effect to
the obligations we have undertaken'as a State Party to the Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment. Secretary of State Rice has emphasized that the United States
takes its international obligations seriously. This is reflected in the great
lengths to which we have gone to provide you with an extensive report and
thorough answers to the many questions you have posed. Our ~elegation is
composed of senior-level officials involved in implementing the Convention.
This further demonstrates our commitment not only to fulfilling our
obligations under the Convention, but also to engaging in what we expect
will be a productive dialogue with you.
.
At the outset I want to reiterate the United States Government's absolute
commitment to upholding our national and international obligations to
eradicate torture and to prevent cruel, inhuman, or degrading treatment or
punishment worldwide. The President of the United States has made clear
that "[t]orture anywhere is an affront to human dignity everywhere" and that
"freedom from torture is an inalienable human right." Beyond the
protections in our Constitution that Mr. Lowenkron mentioned, United
States criminal laws prohibit torture. There are no exceptions to this
prohibition. Within the United States, our 50 states and the federal
government prohibit conduct that would constitute torture under their civil
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE m: 04 AUG 2009 200706444

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2

and criminal laws. Our Congress has also passed laws that provide for
severe federal sanctions, both civil and criminal, against those who engage
United States.
in torture outside
the territory ofthe
.
. ,
And our laws have gone further. Our focus on eradicating torture and
punishing its perpetrators would be incomplete without a parallel effort to
help its victims recover from abuses. The United States has comprehensive
legislation that enables citizens and non-citizens of the United States who
are victims oftorture to bring claims for damages against foreigil.
government officials in U.S. federal courts. Congress has also established
and funded programs that assist victims of torture, domestically and
overseas. The United States has contributed far more than any other country
in the world to the United Nations Voluntary Fund for Victims ofTorture.
For the years 2000 through 2005, U.S. contributions to the Fund totaled
more than 32 million doUars, which is approximately 70% ofthe total
contributions during that period.
And late last year, our Congress enacted, and the President signed into law,
the Detainee Treatment Act of2005. The Act included a provision that
codified in law our already-existing policy against the use of cruel, inhuman
or degrading treatment as that term is defined under the obligations the
United States assumed under the Convention. The law provides that no
person "in the custody or under the physical control ofthe United States
Government, regardless of nationality or physical location" shall be
subjected to cruel, unusual, and inhumane treatment or punishment
prohibited by certain provisions ofthe U.S. Constitution. The enactment of
. the Detainee Treatment Act highlights our nation's commitment to
upholding the values of freedom and humanity on which it was founded.
We know that you will have many questions about actions the U.S.
Government has taken in response to the terrorist attacks upon our country
on September 11. We welcome this dialogue and we are committedto
addressing your questions as fully as possible. As we attempt to answer
your questions, I would like to ask the Committee to bear in mind a few
considerations.
First, some ofthe matters that are addressed by your questions are the
subject of ongoing litigation, and I hope you will understand that our ability
to comment in detail on such matters is necessarily constrained.

UNCLASSIFIED
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Second, like other governments, we are not in a position to comment
publicly on alleged intelligence activities.
Third, our Second Periodic report and the written answers to your questions
contain extensive information about U.S. detainee operations in Guantanamo
Bay, Cuba, and in Afghanistan and Iraq. It is the view ofthe United States
that these detention operations are governed by the law of armed conflict,
which is the lex specialis applicable to those operations.
As a general matter, countries negotiating the Convention,were principally,
focused on dealing with rights to be afforded to people through the operation
of ordinary domestic legal processes and were not attempting to craft rules
that would govern armed conflict.
At the conclusion ofthe negotiationofthe Convention, the United States
made clear "that the convention ... was never intended to apply to armed
conflicts. .. ." 1;he United States emphasized that having the Convention
apply to armed conflicts "would result in an overlap of the different treaties
which would undermine the objective of eradicating torture.',l No country
objected to this understanding.
In any case, regardless of the legal analysis, torture is clearly and
categorically prohibited under both human rights treaties and the l?w of
armed conflict. The obligation to prevent cruel, inhuman, or degrading
treatment or punishment is in Article 16 ofthe Convention and in'similar
provisions in the law of armed conflict. '
While the United States maintains its view that the law of armed conflict is
the lex specialis governing the detainee operations that we will discuss, we
are pleased to provide extensive information about these operations in a
sincere spirit of cooperation with the Committee.
In closing I would like to make two final comments.
First, while I am acutely aware of the innumerable allegations that have
appeared in the press and in other fora about various U.S. actions, I would
ask you not to believe every allegation that you have heard. Allegations
about U.S. military or intelligence activities have become so hyperbolic as to
I

U.N. Doc. E/CNA/1984, March 9,1984.

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be absurd. Critics will now accept virtually any speculation and rumor and
circulate them as fact. The U.S. Government has attempted to address as
many ofthese allegations as quickly and as fully as possible; And yet, as
much as we would like to deny the numerous inaccurate charges made
against our government, because many of the accusations relate to alleged
intelligence activities, we have found that we cannot comment upon them
except in a general way.
Second, even as we recognize matters of concern to the Committee, we ask
that the Committee keep a sense of proportion and perspective. While it is
important to deal with problems in a straightforward manner, it does a
disservice to the quality of our dialogue, to the treaty monitoring process, to
the United States, and, ultimately, to the cause of combating torture around
the world to focus exclusively on the 'allegations and relatiyely few actual
cases of abuse and wrongdoing that have occurred in the context of the U.S.
armed conflict with al Qaeda. I do not mean to belittle or shift attention
away from these cases in any way. We welcome your questions. But we
suggest that this Committee should not lose sight of the fact that these
incidents are not systemic. We also suggest that the Committee devote
adequate time in these discussions to examining the treatment or conditions
that apply domestically with respect to a country of more than 290 million
people. The United States is committed to rule oflaw and has a wellfunctioning legal system to ensure criminal and civil accountability.
We will now begin to answer the questions you have posed to us. In light of
time constraints on this oral presentation, it will be impossible for us to reply
in detail to every aspect of your wide-ranging questions. In many cases, we
will refer you to the more detailed responses we have provided in writing.
Thank you very much.

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FINAL DRAFT
EMBARGOED UNTIL RELEASE

ANNEXl

LD/'IA
RELEASED IN FULL

PART ONE
INDMDUALS UNDER THE CONTROL OF U.S. ARMED
FORCES CAPTURED DURING OPERATIONS AGAINST
THE TALIBAN, AL..QAIDA, AND THEIR AFFILIATES
AND SUPPORTERS

AND

PART TWO
INDIVIDUALS UNDER THE CONTROL OF U.S. ARMED
FORCES IN IRAQ CAPTURED DURING MILITARY
OPERATIONS

UNITED STATES DEPARTMENT OF STATE
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 20 AUG 2009 200706444

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TABLE OF CONTENTS FOR ANNEX 1
PART ONE -INDMDUALS UNDER THE CONTROL OF U.S. ARMED
FORCES CAPTURED DURING OPERATIONS AGAINST AL-QAIDA,
THE TALmAN AND THEIR AFFILIATES AND SUPPORTERS

1.
II.

1

Background on the War Against al-Qaida, the Taliban and their
Affiliates and Supporters
Detainees - Capturing, Holding, Releasing and/or Trying

1
~

5

A.

Brief Overview ofthe Detainee Populations Held by the
U.S. Armed Forces at Guantanamo Bay and in Afghanistan ... 5

B.

Status of Detainees at Guantanamo Bay and in Afghanistan ... 7

C.

Combatant Status Review Tribunals for Detainees
at GuantanaIllo Bay

D.

.
8

Assessing Detainees for ReleasefIransfer

10

1. GuantanaIllO Bay

10

2. Afghanistan

.12

E.

Transfers or Releases to Third Countries

F.

Military Commissions to Try Detainees Held at
Guantanamo Bay

14

Access to U.S. Courts

14

G.

:

13

UNCLASSIFIED!!FOR OFFICIAL USE ONLY

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---------------------------UNCLASSIFIED

UNCLASSIFIED//FOR OFFICIAL USE ONLY
RX!' CLEARED BY DOD, NSC, CIA, DOJ, DOS

(DRAFT OF APRIL 29, 2005)
III.

Detainees - Treatment

A.

17

Description of Conditions of Detention at Department of
Defense Facilities

.17

"1. Guantanamo Bay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Mghanistan..................................... 18
B.

Allegations ofMistreatment of Persons Detained by the
Department of Defense

'.' . 19

1. Introduction..................................... 19

2. R.eports of Abuses; Summary ofAbuse Investigations
and Actions to Hold Persons Accountable Guantanarno Bay
'.'
3. Reports of Abuses, Summary of Abuse Investigations
and Actions to Hold Persons Accountable Afghanistan
IV.

Training of U.S. Armed Forces

"

21

23
26

UNCLASSIFIED//FOR OFFICIAL USE ONLY

UNciASSIFIED"

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TEXT CLEARED BY DOD, NSC, CIA, DOJ, DOS
(DRAFT OF ~L 29, 2005)
PART TWO - INDIVIDUALS UNDER THE CONTROL OF U.S. ARMED
FORCES IN IRAQ CAPTURED DURING MILITARY OPERAnONS

28
,

I.

Background on U.S. Military Operations in Iraq .....•............. 28

II.

Detainees - Capturing, Holding, and/or Releasing

III.

29

A.

Brief Overview of the Detainee Population Held by MNF-I ...'.29

B.

Status Review of Detainees

C.

Decisions on Continued Detention or Release of Detainees.... 30

,

29

Detainees - Treatment
A.

B.

30

Description of Conditions of Detention in U.S. Department of
Defense Facilities
:
'

30

Allegations of Mistreatment of Persons Detained by the
Department of Defense

30

1. Legal Framework

" 30

2. Reports of Abuses and Summary of Abuse Investigations... 32

C.

3. Summary of Actions to Hold Persons Accountable

36

Remedies for Victims ofAbuse

38

IV.

Training of U.S. Armed Forces

38

V.

Lessons Learned and Policy Reforms

39

ATTACHMENTS:

TAB 1: Declarations on Transfers of Detainees from Guantanamo Bay
(Declarations of Matthew C. Waxman and Pierre-Richard Prosper)

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PART ONE
INDIVIDUALS UNDER THE CONTROL OF U.S. ARMED
FORCES CAPTURED DURING OPERATIONS AGAINST
AL-QAIDA, THE TALIBAN AND THEIR AFFILIATES
ANi> SUPPORTERS
I.

BACKGROUND ON THE WAR AGAINST AL-QAIDA, THE TALmAN
AND THEIR AFFILIATES AND SUPPORTERS

The United States and its coalition partners are engaged in a war against al-Qaida,
the Taliban, and their affiliates and supporters. There is no question that under the law of
armed conflict, the United States has the authority to detain persons who have engaged in
unlawful belligerence until the cessation of hostilities. Like other wars, when they start
we do not know when they will end. Still, we may detain combatants until the end of the
war.
At the same time, the commitment of the United States to treat detainees
humanely is clear and well documented. I A discussion of allegations of mistreatment of
detainees appears in Part One, III.B and Part Two, III.B.
To Wlderstand U.S. actions in continuing to detain members ofal-Qaida, the
Taliban, and their affiliates and supporters, whether captured committing acts of
belligerency themselves or directly supporting hostilities in aid of such enemy forces, the
United States submits a brief summary of events in its war against al-Qaida, the Taliban,
and their affiliates and supporters.

Summary of Unlawful Belligerent Acts committed by al-Qaida
Although the events of September 11,2001, indisputably brought conflict to U.S.
soil, al-Qaida had engaged in acts of war against the United States long before that date.
The reality is that for almost a decade before September 11,2001, al-Qaida and its
affiliates waged a war against the United States, although it did not show the depth of its
goals Wltil the morning of September 11, 2001.
In 1996, Osama bin Laden issued a fatwa declaring war on the United States. In
February 1998, he repeated the fatwa stating that it was the duty of all Muslims to kill
U.S. citizens -- civilian or military -- and their allies everywhere. Six months later, on
See Annex 3. See also President's Statement on United Nations International Day in Support of
Victims of Torture, 39 Weekly Compo Pres. Doc. 824 (June 30, 2003).

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two

August 7,1998, al-Qaida attacked
U.S. Embassies in Kenya and Tanzania, killing
over 200 people and injuring approximately 5,000.

In 1999, an al-Qaida member attempted to carry out a bombing plot at the Los
Angeles International Airport during the Millennium Celebrations. U.S. law enforcement
foiled this attack, arresting Ahmed Ressam at Port Angeles at the U.S.lCanadian border.
The United States now knows that in October 2000, a1-Qaida directed the attack on a U.S.
naval warship, the USS Cole, while docked in the port of Aden, Yemen. 2 This attack
killed 17 U.S. sailors and injured 39.
The horrific events of September 11, 2001, are well known. On that day, the
United States suffered massive and brutal attacks carried out by nineteen al-Qaida suicide
hijackers who crashed three U.S. commercial jets into the World Trade Center and the
Pentagon, and were responsible for the downing of one commercial jet in Shanksville,
Pennsylvania. These attacks resulted in approximately 3,000 individuals of 78 different
nationalities dead or missing.
The United Nations Security Council immediately condemned these terrorist acts
as a "threat to international peace and security" and recognized the "inherent right of
individual or collective self-defense in accordance with the United Nations Charter."
U.N. Sec. Council Res. 1368, U.N. Doc. No. SIRES/1368 (Sept. 12,2001) (at
<http://daccessdds.un.org/docIUNDOC/GENIN01/533/82/PDFIN0153382.pdf?<roenEle
ment> (Visited March 1,2005»; see U.N. Sec. Council Res. 1373, U.N. Doc. No.
SIRES/1373 (Sept. 28, 2001) (at
.
<http://www.un.org!NewslPress/docsl2001/sc7158.doc.htm> (visited March 1, 200~)
(deciding that all States shall take certain steps to combat terrorism).
On September 12, 2001, less than 24 hours after the terrorist attacks against the
United States, NATO declared the attacks to be an attack against all the 19 NATO
member countries. The Allies - for the first time in NATO's history - invoked Article 5
of the Washington Treaty, which states that an armed attack against one or more NATO
member countries is an attack against all. NATO followed this landmark decision by
implementing practical measures aimed at assisting the United States. (At
<http://www.nato.intlterrorismlindex.htm#a> (visited February 26, 2005)).

On September 11, 2001, the Organization of American States (GAS) General
Assembly immediately "condemned in the strongest terms, the terrorist acts visited upon
the cities of New York and Washington, D.C." and expressed "full solidarity" with the
government and people of the United States. Immediately thereafter, the foreign
ministers of the States Parties to the 1947 Inter-American Treaty of Reciprocal
Assistance (the Rio Treaty) declared, "these terrorist attacks against the United States of
America are attacks against all American states." The ministers passed a resolution
agreeing to "use all legally available measures to pursue, capture, extradite, and punish"
This was the fIrst time that we knew that al-Qaida attacked U.S. military forces directly. There are
other instances of violence, however, such as the June 1996 attack on Khobar Towers killing 19 U.S.
service members, which bin Laden called a "praiseworthy act of terrorism."

2

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anyone in their territories believed to be involved in terrorist activities. (At
<http://www.oas.orgiAssembly2001/assembly/gaassembly2000/GAterrorism.htm>
(visited Febntary 28, 2005)).
The Prime Minister ofAustralia also considered the a~.ks to be an armed attack
justifying action in self-defense under Article IV of the ANZUS Treaty. See Statement of
the Prime Ministert Application ofAnzus Treaty to Terrorist A//acks on the United Statest
September 14t 2001;
.
<http://www.pm.gov.au/news/mediareleasesl2001/mediareleaseI241.htm> (visited
February 26, 2005).
The seriousness of the threat aI-Qaida and its supporters posed to the security of
the United States compelled it to act in self-defense. On October 7,2001, President Bush
. invoked the United States' inherent right of self-defense and, as Commander in Chief of
the armed forces of the United States, ordered U.S. Armed Forces to initiate action
against terrorists and the Taliban regime harboring them in Afghanistan. The U.S.
Armed Forces "initiated actions designed to prevent and deter further attacks on the
United States ... [including] measures against Al Qaeda terrorist training camps and
military installations ofthe Taliban regime in Afghanistan." Letter from John
Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of
the UN. Security Council, U.N. Doc. No. S/2001/946 (Oct. 7,2001),40 LL.M. 1281
(2001). (At <http://www.un.intlusa!s-2001-946.htm>(visitedMarch 1,2005)). The
attacks commenced when United States and coalition forces launched "strikes against al
Qaeda terrorist training camps and military installations of the Taliban regime in
Afghanistan ... designed to disrupt the use of Afghanistan as a terrorist base of
operations, and to attack the military capability of the Taliban regime." (At
<http://www.whitehouse.gov/newslreleases/2001/l0/20011007-8.html> (visited March 1,
2005)).
President Bush later stated that "[i]ntemational terrorists, including members ofal
Qaida, have carried out attacks on United States diplomatic and military personnel and
facilities abroad and on citizens and property within the United States on a scale that has
created a state of anned conflict that requires the use of the United States Armed Forces."
U.S. Military Order; Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism (Nov. 13,2001),66 Fed. Reg. 57,833 (2001), at Section I(a). (At
<http://www.whitehouse.gov/news/releases/2001l111printl20011113-27.html> (visited
March 1,2005)).
Al·Qaida continues to wage armed conflict against the United States and its allies.
On December 22, ~001, an al-Qaida associate, Richard Reid, attempted to destroy a U.S.
airliner using explosives concealed in his shoe, a plot that the airline passengers foiled.
In April 2002, al-Qaida firebombed a synagogue in Djerba, Tunisia, killing at least 20
people and injuring dozens. In June 2002, al-Qaida detonated a bomb outside the U.S.
Consulate in Karachi, Pakistan, killing II persons and injuring 51. On October 6,2002,
al-Qaida was most likely responsible for a suicide attack against the French oil tanker, the
MV Limburg, off the coast of Yemen, killing one and injuring four. On October 8, 2002,

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al-Qaida gunmen attacked U.S. Marines on Failaka Island in Kuwait, killing one U.S:
Marine and wounding another. On November 28, 2002, in Mombasa, Kenya, al-Qaida
detonated a car bomb in front of the Paradise Hotel, killing 15 persons and wounding 40
oth~. That same day, terrorists launched two anti-aircraft missiles at a civilian aircraft,
and narrowly missed downing a Boeing 757 taking offfrom Mombassa en route to Israel.
Al-Qaida claimed responsibility for the attacks.
On May 12, 2003, al-Qaida suicide bombers in Saudi Arabia attacked three
residential compounds for foreign workers, killing 34, including 10 U.S. citizens, and
injuring 139 others. On November 9,2003, al-Qaida was responsible for the assault and
bombing of a housing complex in Riyadh, Saudi Arabia, that killed 17 and injured 100
others. On November 15, 2003, two al-Qaida suicide truck bombs exploded outside the
Neve Shalom and Beth Israel Synagogues in Istanbul, killing 20 and wounding 300 more.
On November 20,2003, two al-Qaida suicide truck bombs exploded near the British
consulate and the HSBC Bank in Istanbul, killing 30, including the British Consul
General, and injuring more than 309. In December 2003, al-Qaida conducted two
assassination attempts against Pakistan President Musharraf.
In 2004, the Saudi-based al-Qaida network and associated extremists launched at
least 11 attacks, killing more than 60 people, including 6 Americans, and wounding mor~
than 225. Al-Qaida primarily focused on targets associated with U.S. and Western
presence and Saudi security forces located in Riyadh, Yanbu, leddah, and Dhahran.

In October 2004, Abu Mus'ab al-Zarqawi announced a merger betwee~ his
organization, lama'at al-Tawhid was-ai-Jihad or ITJ and Usama Bin Ladin's al-Qaida.
Bin Ladin endorsed Zarqawi as his official emissary in Iraq in December. The new
organization, Al-Qaida of Jihad organization in the Land of the Two Rivers or QJBR, has
the immediate goal of establishing an Islamic state in Iraq. Prior to the merger of the two
organizations, Zarqawi's groups had been conducting a number of attacks in Iraq,
including the attack responsible for the death of the Secretary-General's Special
Representative for Iraq. .
In conclusion, it is clear that al-Qaida and its affiliates and supporters have
planned and continue to plan and perpetrate armed attacks against the United States and
its coalition partners; and they directly target civilians in blatant violation ofthe laws of
war.

II.

DETAINEES - CAPTURING, HOLDING, RELEASING, AND/OR
TRYING
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A.

Brief Overview of the Detainee Populations Held by the U.S. Armed
Forces at Guantanamo Bay and in Mghanistan

During the course of the war in Afghanistan, the U.S. Armed Forces and allied
forces have captured or procured the surrender of thousands of individuals fighting as
part of the al-Qaida and Taliban effort. The law of war has long recognized the right to
detain combatants until the cessation ofhostilities;3 Detaining enemy combatants
prevents them from returning to the battlefield and engaging in further armed attacks
against innocent civilians and U.S. forces. Further, detention serves as a deterrent against
future attacks by denying the enemy the fighters needed to conduct war. Interrogations
during detention enable the United States to gather important int~lligence to prevent
future attacks during ongoing hostilities.
The first group of enemy combatants captured. in the war against al-Qaida, the
Taliban, and their affiliates and supporters arrived in Guantanamo 'Bay, Cuba, in January
2002. The United States has approximately 520 detainees in custody at Guantanamo (see
htto:/Iwww.defenselink.miVreleasesJ2005/nr20050419-2661.html(visited April 28. 2005» and
slightly more than 500 detainees in Afghanistan. These numbers represent a small
percentage of the total number of individuals the United States has detained, at one point
or another, in fighting the war against al-Qaida and the Taliban.
Since the war began in Afghanistan (and long before the U.S. Supreme Court
decisions in the detainee cases of June 2004), the United States has captured, screened
and released approximately 10,000 individuals. It transferred to Guantanamo fewer than
ten percent of those screened. The United States only wishes to hold those enemy
combatants who are part of or supporting Taliban or al-Qaida forces (or associated
forces) and who, if released, would present a threat of reengaging in belligerent acts or
directly aiding and supporting ongoing hostilities against the United States or its allies.
We have made mistakes: ofthe detainees we have released, we have later recaptured or
killed about 5% of them while they were engaged in hostile action against U.S. forces.
Detainees in Afghanistan and Guantanamo include many senior al-Qaida and
Taliban operatives and leaders. in addition to rank-and·file jihadists who took up arms
against the United States. The individuals currently held by the United States were at one
time actively committing belligerent terrorist acts as part of al-Qaida, the Taliban or their
affiliates and supporters who engaged in hostilities against the United States and its allies.
Generally, the enemy combatants held at Guantanamo Bay comprise enemy combatants
who are part ofal-Qaida, the Taliban, or affiliated forces, or their supporters, whether
captured committing acts of belligerency themselves or directly supporting hostilities in
aid of such enemy forces. Examples of enemy combatants held in U.S. custody include:

As the Supreme Court recently made clear in Hamdi, the United States may detain enemy
combatants. including U.S. citizens who are enemy combatants, for the duration of hostilities. The Court
held that Congress has authorized such detentions. Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2639-42 (2003).
Notably, hostiliiies in Afghanistan have not yet ended.

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•

Terrorists linked to major al-Qaida attacks on the United States, such as the East
Africa U.S. Embassy bombings and the USS Cole attack;

•

Terrorists who taught or received training on anns and explosives, surveillance,
and interrogation resistance techniques at al~Qaida camps;

•

Terrorists continuing to express their desire to kill Americans if released. In
particular, some have threatened their guards and the families ofthe guards;

•

Terrorists who have sworn personal allegiance ("bayat") to Usama bin Laden; and

•

Terrorists linked to several al-Qaida operational plans, including the targeting of
U.S. facilities and interests.

Representative examples of specific Guantanamo detainees include:

•

An al-Qaida explosives trainer who has provided information on the September
2001 assassination of Northem AIliance leader Ahmad Shah Masoud;

•

A Taliban fighter linked to al-Qaida operatives connected to the East Africa U.S.
Embassy bombi!1gs;

•

An individual captured on the battlefield, with links to a financier ofthe
September 11th plots, who attempted to enter the United States in August 2001 to
meet hijacker Mohammed Atta;

•

Two individuals associated with senior al-Qaida members developing remotely
detonated explosive devices for use against U.S. forces;

•

A member of an al-Qaida supported terrorist cell in Afghanistan that targeted
civilians and was responsible for a grenade attack on a foreign journalist's
automobile;

•

An al-Qaida member who plotted to attack oiltankers in the Persian Gulf;

•

An individual who served as a bodyguard for Usama Bin Laden;

•

An al-Qaida member who served as an explosives trainer for al-Qaida and
designed a prototype shoe bomb and a magneti~ mine; and

•

An individual who trained al-Qaida associates in the use of explosives and
worked on a plot to use cell phones to detonate bombs.

B.

Status of Detainees at Guantanamo Bay and in Afghanistan

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On February 7, 2002, shortly after the United States beg~ operations in
Afghanistan, President Bush's Press Secretary announced the President's detennination
that the Geneva Convention "appl[ies] to the Taliban detainees, but not t.o the al Qaeda
international terrot:ists" because Afghanistan is a party to the Geneva Convention, but al
Qaeda -- an international terrorist group' -- is not. Statement by the U.S. Press Secretary,
The James S. Brady Briefing Room, in Washington, D.C. (Feb. 7, 2002) (at
<http://www.state.gov/slI/38727.htm>(visited March 1, 2005». Although the President
detennined that the Geneva Convention applies 'to Taliban detainees, he detennined that,
under Article 4, such detainees are not entitled to POW status. Id He explained that:
Under Article 4 of the Geneva Convention,
entitled to POW status .. "

. Taliban detainees are not

The Taliban have not effectively distinguished themselves from the
civilian population of Afghanistan. Moreover, they have not conducted
their operations in accordance with the laws and customs ~fwar. . . .
AI Qaeda is an international terrorist group and cannot be considered a
state party to the Geneva Convention. Its members, therefore, are not
covered by the Geneva Convention, and are not entitled to POW' status
under the treaty.
Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in
Washington, D.C. (Feb. 7,2002) (at <http://www.state.gov/s/I/38727.htm> (visited
March 1,2005»; see a/so, White House Memorandum - Humane Treatment ofal Qaeda
and Taliban Detainees, February 7, 2002, at 2(c) & (d) (released and declassified in full
on June 17,2004). (At <http://www.washingtonpost.comlWsrv/nationldocumentsl020702bush.pdf> (visited March 1, 2005».
After the President's decision, the United States concluded that those who are part
of al-Qaida, the Taliban or their affiliates and supporters, or support such forces are
enemy combatants whom we may detain for the duration of hostilities; these unprivileged
combatants do not enjoy the privileges ofPOWs (i.e., privileged combatants) under the
4
Third Geneva Convention. Intemationallaw, including the Geneva Conventions, has
long recognized a nation's authority to detain unlawful enemy combatants without
benefit of POW status. s See, e.g., INGRIDDETIER, THE LAw OF WAR 148 (2000)
See, e.g., Secretary Rumsfeld's statement that the detainees "are not POWs" and instead are
"unlawful combatants." Gerry J. Gihnore, Rumsfeld Visits, Thanks u.s. Troops at Camp X-Ray in Cuba,
American Forces Press Service, Jan. 27,2002. (At <http://www.defenselink.mil/
newslJan2002/nOI272002 20020I271.htm]> (visited April 11,2002».

The U.S. Supreme Court, citing numerous authoritative international sources, has held that
unlawful combatants "are subject to capture and detention, [as well as] trial and punishment by military
tribunals for acts which render their belligerency unlawful." See Ex parte Quirin, 317 U.S. 1,31 (1942)
(citing GREAT BRITAIN, WAR OFFICE, MANUAL OF MILITARY, ch. xiv, §§ 445-451; REGOLAMENTODI
SERVIZIO IN GUERRA, § 133,3 LEGGI EDECRETJ DEL REGNO D'ITALIA (1896) 3184; 7 MOORE, DIGEST OF
INTERNATIONAL LAW, § 1109; 2 HYDE, INTERNATIONAL LAW, §§ 654, 652; 2 HALLECK, INTERNATIONAL

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("Unlawful combatants: .. though they are a legitimate target for any belligerent action,
are not, if captured, entitled to any prisoner of war status."); see also United States v.
Lindh, 212 F. Supp. 2d. 541, 558 (B.D. Va. 2002) (confmning the Executive branch view
that "the Taliban falls far short when measured against the four GPW criteria for
determining entitlement to lawful combatant immunity.")

Because there is no doubt under intemationallaw as to the status of al-Qaida, the
Taliban, their affiliates and supporters, there is no need or requirement to review
individually whether each enemy combatant detained at Guantanamo is entitled to POW
status. For example, Article 5 of the Third Geneva Convention requires a tribunal in
certain cases to determine whether a belligerent (or combatant) is entitled to POW status
under the Convention only when there is doubt under any ofthe categories enwnerated in
Article 4. 6 The United States concluded that Article 5 tribunals were unnecessary
because there is no doubt as to the status of these individuals.
After the decisions of the U. S. Supreme Court in Rasul v. Bush, 124 S.Ct. 2686
(2004), and Hamdi v. Rums/eld, 124 S.Ct. 2633 (2004), which are described below in
Section G, the U.S. Government established a process on July 7, 2004, to conduct
Combatant Status Review Tribunals (CSRTs) at Guantanamo Bay. (At
<www.defenselink.mil/transcripts/2004/tr200440707-0981.htmI> (visited March 1, 2005)
(DoD Briefing on Combatant Status Review Tribunal, dated July 7, 2004». Consistent
with the Supreme Court decision in Rasul, these tribunals supplement the prior screening
procedures and serve as fora for detainees to contest their designation as enemy
combatants and thereby the legal basis for their detention. The tribunals were established
in response to the Supreme Court decision in Rasul and draw upon guidance contained in
the U.S. Supreme Court decision in Bamdi that would apply to citizen-enemy combatants
in the United States.

C.

Combatant Status Review Tribunals (CSRTs) for Detainees at
Guantanamo Bay

Between August 2004 and January 2005, various Combatant Status Review
Tribunals (CSRTs) have reviewed the status of all individuals detained at Guantanamo, in
a fact-based proceeding, to detennine whether the individual is still classified as an
enemy combatant. As reflected in the Order establishing the CSRTs, an enemy
combatant is "an individual who was part of or supporting Taliban or al Qaeda forces, or
LAW (4th Ed. 1908) § 4; 2 OPPENHEIM, INTERNATIONAL LAW, § 254; HALL, INTERNATIONAL LAW, §§ 127,
135; BATY & MORGAN, WAR, ITS CONover AND LEGAL RESULTS (1915) 172; BLUNTSCHI, DROIT
INTERNATIONAL, §§ 570 bis).
6

•

Article 5 states:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into
the hands of the enemy, belong to any ofthe categories enumerated in Article 4, such persons shall enjoy
the protection of the present Convention until such time as their status has been determined by a competent
tribunal." [emphasis added]. Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T.
3316, T.I.A.S. No. 3364,75 U.N.T.S. 135, Signed at Geneva on Aug. 12, 1949; entered into force on Oct.
21, 1950 (entered into force for the United States, Feb. 2, 1956).

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associated forces that are engaged in hostilities against the United States or its coalition
partners. This includes any person who has committed a belligerent act or has directly
supported hostilities in aid of enemy armed forces." CSRT Order1B (at
<http://www.defenselink.mil/news/Jul2004/d20040707review.pdf> (visited March 1,
2005). Each detainee has the opportunity to contest such designation. The Deputy
Secretary of Defense appointed the Secretary ofthe Navy, The J:Ionorable Gordon
England, to implement and oversee this process. On July 29, 2004, Secretary England
issued the implementation directive for the CSRTs, giving specific procedural and
substantive guidance. (At
<http://www.defenselink.mil/news/Jul2004/d20040730comb.pdt> (visited March 1,
2005». On July 12-14,2004, the United States notified all detainees then at
Guantanamo of their opportunity to contest their enemy combatant status under this
process, and that a Federal court has jurisdiction to entertain a petition for habeas corpus
brought on their behalf. The Government has also provided them with information on
how to file habeas corpus petitions in the U.S. court system. (At
http://www.defenselink.mil/newslDec2004/d20041209ARB.pdf(visited March 1,2005».
When the Government has added new detainees, it has also informed them ofthese legal
rights.
CSRTs offer many of the procedures contained in US Army Regulation 190-8.
The Supreme Court specifically cited these Army procedures as sufficient for U.S.
citizen-detainees entitled to due process under the U.S. Constitution. For example:
•

Tribunals are composed of three neutral commissioned officers, plus a non-voting
officer who serves as a recorder;

•

Decisions are by a preponderance of the evidence by a majority of the voting
members who are sworn to execute their duties impartially;

•

The detainee has the right to (a) call reasonably available witnesses, (b) question
witnesses called by the tribunal, (c) testify or otherwise address the tribunal, (d)
not be compelled to testify, and (e) attend the open portions of the proceedings;

•

An interpreter is provided to the detainee, if necessary; and

•

The Tribunal creates a written report of its decision that the Staff Judge Advocate
reviews for legal sufficiency. 'See CSRT Implementation Memorandum, July 29,
2004 (at <http://www.defenselink.millnewslJuI2004/d20040730comb.pdt>
(visited March 1,2005)).

Unlike an Article 5 tribunal, the CSRT guarantees the detainee additional rights,
such as the right to a personal repres~ntative to assist in reviewing information and
preparing the detainee's case, presenting information, and questioning witnesses at the
CSRT. The rules entitle the detainee to receive an unclassified summary ofthe evidence
in advance of the hearing in the detainee's native language, and to introduce relevant
documentary evidence. See CSRT Order ~g( 1); Implementation Memorandum Enel. (1)
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"F(8), H (5); CSRTOrder'g(10); Implementation Memorandum Enc!. (1)' F (6). In
. addition, the rules require the Recorder to se~h government files for, and provide to the
Tribunal, any "evidence to suggest that the detainee should not be designated as an
enemy combatant." See Implementation Memorandum Enel. (2), ~(I). The detainee's
Personal Representative also has access to the government files and can search for and
provide relevant evidence that would support the detainee's position.
A higher authority (the CSRT Director) automatically reviews the result of every
CSRT. He has the power to return the record to the tribunal for further proceedings if
appropriate. See CSRT Order' h; Implementation Memorandum Encl. (1) " I (8). The
CSRT Director is a two-star admiral--a senior military officer. CSRTs are transparent
proceedings. Members ofthe media, the International Committee of the Red Cross
(ICRC), and non-governmental organizations may observe military commissions and the
unclassified portions of the CSRT proceedings. They also have access to the unclassified
materials filed in Federal court. Every detainee now held at Guantanamo Bay has had a
~SRT hearing. New detainees will have the same rights.
As of March 29, 2005, the CSRT Director had taken final action in all 558 cases.
Thirty-eight detainees were determined no longer to be enemy combatants; twenty-three
of them have been subsequently released to their home countries, and at the time of this
Report's submission, arrangements are underway for the release of the others. (At
<http://www.defenselink.mil/releases/2005/nr200504 I 9-2661.html> (visited April 25,
2005».
.

D.

Assessing Detainees for Release!fransfer
1.

Guantanamo Bay

The detention of each Guantanamo detainee is reviewed annually by an
Administrative Review Board (ARB), established by an order on May 11, 2004 (Review
Procedure Announcedfor Guantanamo Detainees, Department of Defense Press Release,
May 18,2004) (at <http://www.defenselink.mil/releases/2004/nr2004051 8-0806.html>
(visited February 28, 2005) and supplemented by an implementing directive on
September 14,2004. See Implementation ofAdministrative Review Pro~eduresfor
Enemy Combatants Detained at Us. Naval Base Guantanamo Bay, Cuba (at
<http://www.defenselink.mil/news/Sep2004/d20040914adminreview.pdf> (visited
February 28, 2005)).
The ARB assesses whether an enemy combatant continues to pose a threat to the
United States or its allies, or whether there are other factors bearing on the need for
continued detention. The process permits the detainee to appear in person before an ARB
panel of three military officers to explain why the detainee is no longer a threat to the
United States or its allies, and to provide informationto support the detainee's release.
Each enemy combatant is provided with an unclassified written summary of the
primary factors favoring the detainee's continued detention and the primary factors

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favoring the detainee's release or transfer from Guantanamo. The enemy combatant is
also provided with a military officer to provide assistance throughout the ARB process.
In addition, the review board will accept written information from the government of
nationality, and from the detainee's relatives through that government, as well as from
counsel representing detainees in habeas corpus proceedings. Based on all of this
information, as well as submissions by U.S. Government agencies, the ARB·by majority
vote makes a written assessment on whether there is reason to believe that the enemy
combatant no longer poses a threat to the United States or its allies in the ongoing armed
conflict and any other factors bearing on the need for continued detention. The Board
also makes a written recommendation on whether detention should be continued. The
recommendations ofthe board are reviewed by a jUdge advocate for legal sufficiency and
then go to the Designated Civilian Official (currently Secretary ofthe Navy Gordon
England), who decides whether to release. transfer or continue to detain the individual.
As of April 26, 2005, the Department of Defense has announced its intent to
conduct Administrative Review Board reviews for 254 detainees; it has informed the
detainees' respective host countries and asked them to notify the detainees' relatives; and
it has invited them to provide information for the hearings. (At
<www.defenselink.mil/news/combatantTribunals.html> (visited April 28, 2005)). The
first Annual Administrative Review Board began on December 14,2004, and 91
Administrative Review Boards have been conducted as of April 26, 2005.
The United States has no interest in detaining enemy combatants any longer than
necessary. On an ongoing basis, even prior to the Annual Administrative Review Boards,
the U.S. Government has reviewed the continued detention of each enemy combatant.
The United States releases detainees when it believes they no longer continue to pose a
.threat to the United States and its allies. Furthennore, the United States has transferred
some detainees to the custody of their home governments when those governments 1) are
prepared to take the steps necessary to ensure that the person will Dot pose a continuing
threat to the United States or its allies; andlor 2) are prepared to investigate or prosecute
the person, as appropriate. The United States may also transfer a detainee to a country
other than the country of the detainee's nationality, when the country requests transfer for
purposes of criminal prosecution.
As of April 26, 2005, the United States has transferred 234 persons from
Guantanamo - 169 transferred for release and 66 transferred to the custody of other
governments for further detention, investigation, prosecution, or control. Of the 66
detainees who were transferred to the control ofother governments, 29 were transferred
to Pakistan, seven to Russia, five to Morocco, nine to the United Kingdom, six to France,
four to Saudi Arabia, two to Belgium, one to Kuwait, one to Spain, one to Australia, and
one to Sweden.
In some situations, it has been difficult to find locations to which to transfer safely
.
detainees from Guantanamo when they do not want to return to their country of
nationality or when they have expressed reasonable fears if returned. Until the United
States can find a suitable location for the safe release of a detainee, the detainee remains

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in U.S. control.
It is often difficult to assess whether an individual released from Guantanamo will
return to combat and pose a threat to the United States or its allies. Determining whether
an individual truly poses a threat is made more difficult by information that is often
ambiguous or conflicting, as well as by denial and deception efforts on the part of the
individual detainees. Based on information seized at al-Qaida camps in Mghanistan and
elsewhere, the United States is aware that Taliban ~d al-Qaida fighters are trained in
counter-interrogation techniques and instructed to claim, for example, that they are cooks,
religious students, or teachers. It has proven challenging to ascertain the true facts and
has required a great deal of time to investigate fully the background of each detainee.
There is a concerted, professional effort to assess information from the field, from
interrogations, and from other detainees. In spite of rigorous U.S. review procedures,
some detainees who were released from Guantanamo have returned to fighting in
Mghanistan against U.S. and allied forces. Based on a variety ofreports, as many as
twelve individuals have returned to terrorism upon return to their country of citizenship.
Some examples of detainees who have returned to the fight include:
•

A former Guantanamo detainee who reportedly killed an Afghan judge
leaving a mosque in Afghanistan;

•

A former Guantanamo detainee (released by the United States in January
2004) who was recaptured in May 2004 when he shot at U.S. forces and was
found to be carrying a letter of introduction from the Taliban; and

•

Two detainees (released from Guantanamo in May 2003 and April 2004,
respectively) who were killed in the summer of2004 while engaged in combat
operations in Afghanistan.

The fact that some detainees upon their release are returning to combat
underscores the ongoing nature ofthe armed conflict with al-Qaida and the practical
reality that in defending itself against al-Qaida, the United States must proceed very
carefully in its detennination of whether a detainee no longer poses a threat to the United
States and its allies.

2.

Afghanistan

Detainees under Department of Defense control in Afghanistan are subject to a
review process that first detennines whether an individual is an enemy combatant. The
detaining Combatant Commander, or designee, shall review the initial determination that
the detainee is an enemy combatant. This review is based on all available and relevant
information available on the date of the review and may be subject to further review
based upon newly discovered evidence or infonnation. The Commander will review the
initial determination that the detainee is an enemy combatant within 90 days from the
time that a detainee comes under DoD control. After the initial 90-day status review, the

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detaining combatant commander, on an annual basis, is required to reassess the status of
each detainee. Detainees assessed to be enemy combatants under this process remain
under DoD control until they no longer present a threat. The review process is conducted
under the authority of~e Commander, U.S. Central Command (USCENTCOM). It: as a
result ofthe periodic Enemy Combatant status review (90-clay or annual), a detaining
combatant commander concludes that a detainee no longer meets the definition of an
enemy combatant, the detain~e is released.

E.

Transfers or Releases to Third Countries

After it is detennined that a detainee no longer continues to pose a threat to the
U.S. security interests or that a detainee no longer meets the criteria of enemy combatant
and is eligible for release or transfer, the United States generally seeks to return the
detainee to his or her country of nationality. The DoD has transferred detainees to the
control of their governments of nationality when those governments are prepared to take
the steps necessary to ensure that the detainees will not pose a continuing threat to the
United States and only after the United States receives assurances that the govenunent
concerned will treat the detainee humanely and in a manner consistent with its
international obligations. A detainee may be considered for transfer to a country other
than his country of nationality, such as in circumstances where that country requests
transfer ofthe detainee for purposes of criminal prosecution. Of particular concern to the
United States is whether the foreign government concerned will treat the detainee
humanely, in a manner consistent with its international obligations, and will not persecute
. the individual because of his race, religion, nationality, membership in a social group, or
political opinion. In some cases, however, transfers cannot easily be arranged.
U.S. policy is not to transfer a person to a country if it is determined that it is more likely
than not that the person will be tortured or, in: appropriate cases, that the person has a
well-founded fear ofpersecution and would not be disqualified from persecution
protection on criminal- or security-related grounds. If a case were to arise in which the _
assurances obtained from the receiving government are not sufficient when balanced
against treatment concerns, the United States would not transfer a detainee to the control
of that government unless the concerns were satisfactorily resolved. Circumstances have
arisen in the past where the Department of Defense elected not to transfer detainees to
their country of origin because of torture concerns.
With respect to the application of these policies to detainees at Guantanamo Bay,
the U.S. Government in February of2005 filed factual declarations with a Federal court
for use in domestic litigation. These declarations describe in greater detail the application
of the policy described above as it applies to the detainees at Guantanamo Bay, and are
attached as Tab 1 to this Annex.

F.

Military Commissions to Try Detainees Held at Guantanamo Bay

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In 2001, the President authorized military commissions to try those detainees
charged with war crimes. See Detention, Treatment, and Trial o/Certain Non-Citizens in
the War Against Terrorism, November 13,2001 (at
<http://www.whitehouse.gov/news/releasesl20011l1/print/20011113-27.html> (visited
February 28, 200S». The Geneva Conventions recognize military fora as legitimate and
appropriate to try those persons who engage in belligerent acts in contravention of the
law ofwar. The United States has used military commissions throughout its history.
During the Civil War, Union Commanders conducted more than 2,000 military
commissions. Following the Civil War, the United States used military commissions to
try eight conspirators (all U.S. citizens and civilians) in President Lincoln's assassination.
During World War II, President Roosevelt used military commissions to prosecute eight
Nazi saboteurs for spying (including at least one U.S. citizen). A military commission
tried Japanese General Yamashita for war crimes committed while defending the
Philippine Islands. In addition to the international war crimes tribunals, the Allied
Powers, such as England, France, and the United States, tried hundreds of lesser-known
persons by military commissions in Germany and the Pacific theater after World War II.
To date, the President has designated fifteen individuals as eligible for
prosecution by military commission. Of those, the United States has since transferred
three to their country of nationality, which has released them. Four Guantanamo
detainees have been charged and have had preliminary hearings before a military
commission. These four cases are currently in abeyance, pending appellate court review
ofthe recent U.S. District Court for the District of Columbia's decision ofNovember 8,
20M, in Hamdan v. Rums/eld, 344 F. Supp. 2d 152 (D.D.C. 2004).
The U.S. District Court ruled that Hamdan, the petitioner, may not be tried by
military commission unless and until a competent tribunal determines he is not entitled to
Prisoner of War status under the Third Geneva Convention and until "a procedural rule is
altered regarding closure of the commission hearing to the accused. On November 12,
20M, the U.S. Government apPealed that ruling to the U.S. Court of Appeals for the
District of Columbia Circuit. The U.S. Court of Appeals ordered an expedited case
schedule and held oral argument on April 7, 2005.
In light of this pending case, it will not be possible to address the Military
Commissions in further detail at this time.

G.

Access to U.S. Courts

In 2003, petitions for writ of habeas corpus were filed in U.S. courts on behalf of
some of the detainees at Guantanamo seeking review oftheir detention. On June 28,
2004, the United States Supreme Court, the highest judicial body in the United States,
decisions pertinent to many enemy combatants. One of the decisions directly
issued
pertained to enemy combatants "detained at Guantanamo Bay, and the other pertained to a
citizen enemy combatant held hi the United States. See Rasul v. Bush, 124 S.Ct. 2686 "
(2004); Hamdi v. Rums/eld, 124 S.Ct. 2633 (2004); see also Rums/eld v. Padilla, 124
S.Ct. 2711 (2004) (involving a decision on which U.S. Federal court has jurisdiction over

two

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habeas action). In Rasul v. Bush, the Supreme Court decided only the question of
jurisdiction. The Court ruled that the U.S. District Court for the District of Columbia had
jurisdiction to consider habeas challenges to the legality ofthe detention of foreign
nationals at Guantanamo. 124 S.Ct. at 2698. The Court held that aliens apprehended
abroad and detained at Guantanamo Bay, Cuba, as enemy combatants, "no less than
citizens," could invoke the habeas jurisdiction of a district court. ld. at 2696. The
Supreme Court left it to the lower courts to decide "[w]hether and what further
proceedings may become necessary after [the United States Government parties] make
their response to the merits ofpetitioners' claims." Id at 2699. In Hamdi v. Rumsje/d,
the Supreme Court held that the United States is entitled to detain enemy combatants,
even American citizens, until the.end of hostilities, in order to prevent the enemy
combatants from returning to the field of battle and again taking up arms. The Court
recognized the detention of such individuals is such a fundamental and accepted incident
of war that it is part of the "necessary and appropriate" force that Congress authorized the
President to use against nations, organizations, or persons associated with the September
11 terrorist attacks. 124 S.Ct. at 2639-42 (plurality op.); id, at 2679 (Thomas J.,
dissentinID·
.
A plurality of the Court addressed the entitlements of a U.S. citizen designated as
an enemy combatant and held that the Due Process Clause ofthe U.S. Constitution
requires "notice ofthe factual basis for [the citizen-detainee's] classification, and a fair
opportunity to rebut the Government's factual assertions before a neutral decisionrnaker."
ld at 2648. A plurality of the Court observed: "There remains the possibility that the
[due process] standards we have articulated could be met by an appropriately authorized
and properly constituted military tribunal," and proffered as a benchmark for comparison
the regulations titled, Enemy Prisoners of War, Retained Personnel, Civilian Internees
and Other Detainees, Army Regulation 190-8, §1-6 (1997). ld at 2651
These Supreme Court rulings have resulted in further proceedings at the Federal
trial and appellate court levels. As of April 27, 2005, there are 55 habeas corpus cases
involving 153 Guantanamo detainees pending before ten district court judges. These
include thirty-nine Yemenis, twenty-six Saudis, eleven Kuwaitis, eleven Moroccans, ten
Algerians, six Bahrainis, seven Tunisians, five Jordanians, five Sudanese, four Syrians,
four Mauritanians, three Chinese, three Egyptians, three Libyans, two each from
Palestine and Chad; and one from each of the following: Qatar, Kazakhstan, Tajikistan,
Uganda, Iraq, Australia, Canada, Somalia, Turkey, Afghanistan, Pakistan and Ethiopia.
Additionally, a habeas corpus petition has been filed under the name of "John Doe" on
behalf of all detainees who do not currently have habeas corpus petitions pending. Other
detainees may have since filed habeas corpus petitions. Due to the recent transfer of four
British, one Australian and one Kuwaiti detainee, the government has moved to dismiss
their petitions. Those motions are still pending.
The various habeas corpus petitions seek the detainees' release, claiming that the
detentions violate the Fifth, Sixth, Eighth and Fourteenth Amendments, and the War
Powers and Article I Suspension clauses of the Constitution. Some of the petitions have
also alleged claims under the Administrative Procedure Act, the Alien Tort Statute, Anny

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Regulation 190-8, customary intemationallaw, and international treaties including the
International Covenant on Civil and Political Rights, the Convention Against Torture,
and the Geneva Conventions of 1949.
During the course ofthese habeas corpus proceedings, the Federal courts have
reviewed or are reviewing numerous motions and other requests including motions to
dismiss the petitions, motions to enjoin tribunal proceedings, including military
commission prosecutions and transfers to foreign governments and requests for
discovery. For example, in August 2004, the Federal District Court in the cases of
Gherebi v. Bush, No. 04-CV-1164-RBW (D.D.C.) (unpublished ruling of Jul. 27, 2004), Boumediene v. Bush, No. 04-CV-1166-RJL (D.D.C.) (unpublished ruling of Aug. 3,
2004), and El-Banna v. Bush, No. 04-CV-1144-RWR (D.D.C.) (unpublished ruling of
August 6, 2004) separately denied requests by petitioners for relief enjoining ongoing
CSRT proceedings. In re Guantanamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C.
2005). The judges ruled that the cc;>urts could address any alleged defect in the CSRT
proceedings if petitioners later sought any relief with regard to their detention. Further,
pursuant to briefing orders issued by Judge Green, the senior district court judge who
was, until recently, coordinating the numerous detainee cases, the government filed
factual returns in a number ofthe cases, indicating both the classified and unclassified
·factual bases for the enemy combatant status of each petitioner-detainee based on the
record ofCSRT proceedings. The court has full access to the records of the CSRT
proceedings.
In January 2005, two district court judges reached conflicting decisions regarding
the constitutional rights of enemy combatants at Guantanamo. In Khalid v. Bush, Judge
Richard J. Leon detennined that Congress had authorized the President to capture and
detain enemy combatants and that the enemy combatants at Guantanamo do not have
rights under the U.S. Constitution and that th~re was no viable theory under federal law,
international treaties or customary intemationallaw that would make their detention
unlawful. 355 F.Supp.2d 311 (D.D.C. 2005). In contrast, Judge Joyce Hens Green ruled
that at least certain rights under the U.S. Constitution apply at Guantanamo and that that
CSRT procedures were unconstitutional, as they did not comport with the Fifth
Amendment right to due process. In re Guantanamo Detainee Cases, 2005 WL 195356
(D.D.C.) (Jan. 31,2005). Judge Green ruled that ifthe detainee was not going to have
access to classified material, then counsel with access to such material should be
permitted to advocate for the detainee at the CSRT. She also found that the inquiry
conducted had been inadequate in cases where detainees alleged that coercion or torture
was used during interrogations.
The parties have appealed two conflicting decisions to the U.S. Court of Appeals
for the District of Columbia Circuit on an expedited basis.
In conclusion, domestic judicial proceedings are ongoing, which may address
allegations of mistreatment that have arisen with respect to Guantanamo Bay. As'
described elsewhere in this report, individuals who engage in torture or other physical
abuse of detainees are subject to prosecutions and other sanctions under U.S. law.

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llL

DETA~ES-TREATMENT

A.

.

Description of Conditions of Detention at Department of Defense
Facilities
1. Guantanamo Bay

The Department of Defense has released to the public several photographs of the
detention facilities in Guantanamo Bay. (At
<http://www.defenselink.mil/homelfeatures/gtmo> (visited March 17,2005». These
photographs reflect U.S. policy and practices regarding treatment of detainees at
Guantanamo Bay, including the U.S. requirement that all detainees receive adequate
housing, recreation facilities, and medical facilities.
Detainees receive:
•

Three meals per day that meet cultural dietary requirements;

•

Adequate shelter, including cells with beds, mattresses, and sheets;

•

Adequate clothing, including shoes, uniforms, and hygiene items;

•

Opportunity to worship, including prayer beads, rugs, and copies of the
Koran;

•

The means to send and receive mail;

•

Reading materials, including allowing detainees to keep books in their·cells;
and

•

Excellent medical care.

All enemy combatants get state-of-the iut medical and dental care that is
comparable to that received by U.S. Armed Forces deployed overseas. Wounded enemy
combatants are treated humanely and nursed back to health, With amputees fitted with
modern prosthetics.
Detainees write to and receive mail from their families and friends. Detainees
who are illiterate, but trustworthy enough for a classroom setting, are taught to read and
write in their native language so they, too, can communicate with their families and
friends.
Enemy combatants at Guantanamo may worship as desired and in accordance
with their beiiefs. They have access to a Koran and other prayer accessories. Traditional
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garb is available for Bome detainees.
Where security permits, detainees are eligible for communal living in a new
Medium Security Facility, with fan-cooled dormitories, family-style dinners, and
increased outdoor recreation time, where they play board games like chess and checkers,
and team sports like soccer.
The United States permits the International Committee ofthe Red Cross to visit
privately with every detainee in DoD control at Guantanamo. Communications between
the U.S. Government and the ICRC are confidential.
In addition, legal counsel representing the detainees in habeas corpus
cases have visited detainees at Guantanamo since late August 2004. As of late
April 2005, counsel in nineteen cases had personally met with the 74 detainees
they represent, and counsel in seventeen ofthose cases have made repeat visits to
Guantanamo. To date, every request by American counsel ofrecord in the habeas
cases to visit detainees at Guantanamo has' been granted, after that counsel has
received the requisite security clearance and agreed to the terms of the protective
order issued by the Federal court. The Government does not monitor these
meetings (or the written correspondence between counsel and detainees), which
occur in a confidential manner. The Government also allows foreign and
domestic media to visit the facilities.

2. Afghanistan
The Department of Defense holds individuals in Afghanistan in a safe, secure, and
humane environment. The primary focus ofDepartment of Defense detainee operations
in Mghanistan is to secure detainees from harm, recognizing the reality that the U.S.
Armed Forces continue to engage in combat in Mghanistan.
The Department of Defense operates theater internment facilities at Kandahar and
Bagram. These facilities house enemy combatants identified in the war against al-Qaida,
the Taliban and their affiliates. the Department of Defense has registered with the JCRC
individuals held under its control in Mghanistan. JCRC has access to these DoD
facilities and conducts private interviews with detainees. In addition, the U.S. Armed
Forces operates forward operating bases that, from time to time, may house on a
temporary basis individuals detained because of combat operations against al-Qaida,
Taliban, and affiliated forces.
The DoD provides detainees in Afghanistan with adequate food, shelter, clothing,
and opportunity to worship. In addition, DoD initiatives will increase available resources
for literacy and education training. The DoD also gives Afghani detainees information
regarding the establishment of the new Afghan government, as well as a copy of the
Afghan Constitution.
'
The U.S. Government is also in a process of improving the detention facilities at

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both Bagram and Kandahar. Improved facilities should be available to detainees later in
2005.
B.

Allegations of Mistreatment .of Persons Detained by the Department
of Defense
1. Introduction

The United States is well aware of the concerns about the mistreatment of persons
detained by the Depamnent of Defense in Afghanistan and at Guantanamo Bay, Cuba.
Indeed, the United States has taken and continues to take all allegations of abuse very
seriously. Specifically, in response to specific complaints of abuse in Afghanistan and at
Guantanamo Bay, Cuba, the Depamnent of Defense has ordered a number of studies that
focused, inter alia, on detainee operations and interrogation methods to determine if there
was merit to the complaints ofmistreatment.
Although these extensive investigative reports have identified problems and
proffered recommendations, none of them found that any governmental policy directed,
encouraged or condoned these abuses. The reports pertaining to Guantanamo Bay are
summarized in Section B.2 below and those pertaining to Afghanistan are summarized in
Section B.3 below.
In general, for both Afghanistan and Guantanamo Bay, these reports have assisted
in identifying and investigating all credible allegations ofabuse. When a credible
allegation of improper conduct by Depamnent of Defense personnel surfaces, it is
reviewed, and when factually warranted, investigated. As a result of investigation,
administrative, disciplinary, or judicial action is taken as appropriate. Those credible
allegations were and ~re now being resolved within the Combatant Command structure.
Concerns have also been generated by an August 1, 2002, memorandum prepared
by the Office of Legal Counsel (OLC) at the U.S. Department of Justice (DOJ), on the
definition oftorture and the possible defenses to torture under U.S. law and a Department
of Defense Working Group Report on detainee operations, dated April 4, 2003, the latter
of which was the basis for the Secretary of Defense's approval of certain counter
resistance techniques on April 16, 2003. The 2002 DOJ OLC memorandum was
withdrawn on June 22, 2004 and replaced with a December 30, 2004, memorandum
interpreting the legal standards applicable under 18 U.S.C. 2340-2340A, also known as
the Federal Torture Statute. See Annex 2.
On March 10,2005 Vice Admiral Church (the former U.S. Naval Inspector
General) released an executive summary ofms report, which included an examination of
this issue. His Report examined the precise question of "whether DoD had promulgated
interrogation policies or guidance that directed, sanctioned or encouraged the abuse of
detainees." Church Report, Executive Summary, at 3, released March 10,2005 (relying
upon data available as of September 30, 2005) (at
<http://www.defenselink.miVnewslMar2005/d2005031 Oexe.pdf.> (visited March 23,
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2005». In his Report, he wrote that "this was not the case," id, finding that "it is clear
that none ofthe approved policies - no matter which version the interrogators followed would have permitted the types of abuse that occurred." Id., at 15. In response to
intensive questioning before the U.S. Senate Armed Services Committee as to whether
the 2002 DOJ memo or subsequently authorized interrogation practices had contributed
to individual soldiers committing abuses, he responded. that "clearly there was no policy,
written or otherwise, at any level, that directed or condoned torture or abuse; there was no
link between the authorized interrogation techniques and the abuses that, in fact,
occurred." Transcript at 7. Although Vice Admiral Church's investigation is the most
comprehen~iveto date on this issue, it was consistent with the findings of earlier
investigations on this point. See, e.g., Army Inspector General Assessment, released
July 2004 (at <http://www4.anny.mil/ocpa/reports/AnnyIGDetaineeAbuse/index.html >
(visited March 1,2005».
Vice Admiral Church's finding was also consistent with earlier statements by
high-level U.S. officials, including by the previous White House Counsel Alberto
Gonzales, who had stated:
The administration has made clear before and I will reemphasize today
that the President has not authorized, ordered or directed in any way any
activity that would transgress the standards of the torture conventions or
the torture statute, or other applicable laws.

. . . [L]et me say that the U.S. will treat people in our custody in
accordance with all U.S. obligations including federal statutes, the U.S.
Constitution and our treaty obligations. The President has said we do not
condone or commit torture. Anyone engaged in conduct that constitutes
torture will be held accountable.
Press Briefing by White House C;ounsel Judge Alberto Gonzales, DoD General
Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto and
Army Deputy Chief of Staff for Intelligence General Keith Alexander, June 22,
2004, (at <http://www.whitehouse.gov/news/releases/2004/06/2004062214.html> (visited February 28, 2005».
Subsequent to the release of the December 2004 DOJ memo interpreting the
Federal Torture Statute, the Deputy Secretary of Defense ordered a "top-down" review
within the Department to ensure that the policies, procedures, directives, regulations, and
actions of the department comply fully with the requirements of the new Justice
Department Memorandum. 7 The Office of Detainee Affairs in the Office of the Under
Secretary of Defense for Policy coordinates this process of review.

Department of Defense Memorandum (Jan. 27, 2005).

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2.

Reports of Abuses, Summary or Abuse Investigations and
Actions to Hold Persons Accountable - Guantanamo Bay

As described above in the introductory section, there have been multiple
reports/investigations concerning the treatment of detainees at Guantanamo Bay. For
example, the Naval Inspector General reviewed the intelligence and detainee operations
at Guantanamo Bay to ensure compliance with DoD orders and policies. The review,
conducted in May 2004, concluded that the Secretary of Defense's directions with respect
to humane treatment of detainees and interrogation techniques were fully implemented.
The Naval Inspector General documented eight minor infractions involving contact with
detainees as stated below (two additional incidents occurred after this investigation was
completed). In each of those cases, the chain of command took swift and effective
action.. Administrative actions ranging from admonishment to reduction in grade. 8
In a subsequent report, the Naval Inspector General engaged in a comprehensive
review of DoD detention operations and detainee interrogation operations covering not
only Guantanamo, but Iraq and Afghanistan. This report expanded upon his earlier
fmding with respect to interrogation operations at Guantanamo, noting that while '<there
have been over 24,000 interrogation sessions since the beginning of interrogation
operations, there are only three cases of closed, substantiated interrogation-related abuse,
all consisting of minor assaults in which MI interrogators, exceeded the bounds of
approved interrogation policy." . Church Report, Executive Summary, at 14, released
March 10,2005 (using data as of September 30,2004) (at
. <www.defenselink.mil/newslMar2005/d20050310exe.pdt> (visited March 23, 2005)).
He highlighted that "[w]e found no link between approved interrogation techniques and
detainee abuse." Id, at 13.
One investigation remains ongoing and will be completed soon. On December
29,2004, the Commander U.S. Southern Command appointed a General Officer to
investigate the facts and circumstances surrounding allegations of detainee abuse
contained in documents recently released under the Freedom of Information Act,
including those released by the Federal Bureau of Investigation, and to conduct an
inquiry into any credible allegation contained in those documents.

See 10 U.S.C. § 815. The intent of nonjudicial punishment (colloquially referred to as an "Article
15" or "Captain's Mast") is to provide the commander with enough latitude to resolve a disciplinary
problem appropriately in order to maintain "good order and discipline" within the unit. Nonjudicial
punishment is designed for minor offenses. It allows a commander to correct, educate, and refonn
offenders while simultaneously preserving the service member's record of service from unnecessary stigma
and furthering military efficiency. A service member is provided appropriate due process rights when
considered for nonjudicial punishment. The service member has the right to consult with counsel, the right
to remain silent, turn down the nonjudicial punishment and, in tum, possibly face trial by court-martial
(unless attached to or embarked upon a vessel), request an open hearing, a spokesperson to speak on the
service member's behalf at the hearing, examine all available evidence, present evidence and call
witnesses, and, if notUudicial punishment is imposed, the right to appeal.

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Therefore, although there have been allegations of serious abuse ofdetainees at
Guantanamo Bay, the United States has not found evidence substantiating such claims.
Instead, it has identified 10 substantiated incidents9 ofmisconduct at Guantanamo:
•

A female interrogator inappropriately touched a detainee on April 17, 2003 by
running her fingers through the detainee's hair, and made sexually suggestive
COmments and body movements, including sitting on the detainee's lap,
during an interrogation. The female interrogator received a written
admonishment and additional training.

•

On April 22, 2003, an interrogator assaulted a detainee by directing military
policemen repeatedly to bring the detainee from a standing to a prone position
and back. A review of medical records indicated superficial bruising to the
detainee's knees. The interrogator received a letter of reprimand.

•

A female interrogator, at an unknown date, in response to being spit upon by a
detainee, assaulted the detainee by wiping red dye from a red magic marker on
the detainee's shirt and telling the detainee that the red stain was blood. The
interrogator received a verbal reprimand for her behavior.

•

In October 2002, an interrogator used duct tape to tape shut the mouth of a
detainee who was being extremely disruptive during an interrogation. The
tape did not harm the detainee and the interrogator received a verbal
reprimand for his behavior.

•

A military policeman (MP) assaulted a detainee on September 17, 2002, by
attempting to spray him with a hose after the detainee had thrown an
unidentified, foul-smelling liquid on the MP. The MP received non-judicial
punishment that included seven days restriction and reduction in grade from"
Specialist (E-4) to Private First Class (E-3).

•

On March 23, 2003, after a detainee threw unidentified liquid on an MP, the
MP sprayed the detainee with pepper spray. The MP declined non-judicial .
punishment,10 and he was subsequently tried by special court-martial where he
was acquitted of all charges.

•

On April 10, 2003, after a detainee had struck an MP in the face (causing the
MP to lose a tooth) and bitten another MP, the MP struck the detainee with a
handheld radio. This MP was given non-judicial punishment, received 45
days extra-duty, and was reduced in grade from Specialist (E-4) to Private

There has also been an investigation in response to a request by the Australian Government
following claims ofmistreatrnent oftwo Australian detainees at Guantanarno. Although not initially
substantiated, the Naval Criminal Investigative Service is conducting an independent investigation into
these allegations of abuse.

9

10

See description, id.

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First Class (B-3).

•

On January 4, 2004, an MP platoon leader received an initial allegation that
one ofhis guards had thrown cleaning fluid on a detainee and later made
inappropriate comments to the detainee. The platoon leader, however, did not
properly investigate the allegation or report it to his chain of command. The"
initial allegation against the guard ultimately turned out to be substantiated.
The MP was given non-judicial punishment and received forfeiture of pay of
$150 per month for two months and reduction in grade from Private (E-2) to
Private (E-1). The platoon leader was issued a reprimand for dereliction of
duty.

•

On February 10, 2004, an MP inappropriately joked with a detainee, and
dared the detainee to throw a cup of water on him. After the detainee did so,
the MP threw a cup of water on the detainee. The MP was removed from
further duty because ofthese inappropriate actions.

•

On February 15,2004, a barber intentionally gave two detainees unuSual
haircuts, including an "inverse Mohawk," in an effort to frustrate the
detainees' request for similar haircuts as a sign of unity. The barber and his
company commander were both counseled because of this incident.

The above list of substantiated abuses at Guantanamo Bay demonstrates that
misconduct will not be tolerated.

3.

Reports of Abuses, Summary of Abuse Investigations and
Actions to Hold Persons Ac:c:ountable - Afghanistan

The United States acted swiftly in response to allegations of.serious abuses by
Department of Defense personnel in Afghanistan. There have been 23 investigations into
allegations of abuse of detainees in Afghanistan, of which 22 were substantiated and one
was "unsubstantiated. Seven investigations are open and continue to be investigated. As
of March 1,2005, penalties have varied and include 2 courts-martial, 10 non~judicial
punishments, and two reprimands. A number of actions are still pending.
What follows are a few examples of substantiated abuses and a summary of the
status:
•

The investigations into the death of two detainees (Mr. Mullah Habibullah and
Mr. Dilawar) at the Bagram detention facility on December 4 and 10, 2002,
identified 28 military members who may have committed offenses punishable
under the UCMJ. Investigations detennined that the detainees had been
beaten by several military members. Commanders are considering the full
range of administrative and disciplinary measures, including trial by courtmartial. As of this writing, charges have been preferred against two military
members.
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•

The Naval Criminal Investigation Service (NCIS) opened an investigation in
May 2004 involving allegations of an Mghan police officer who claimed he
was abused in while under coalition control in Gardez and Bagram. This
inyestigation remains open.
.

As described in the Introduction to this Section, there have been multiple important

substantive reportslinves.tigations into alleged detainee abuse in Department of Defense
facilities in Afghanistan, none of which found a governmental policy directing,
encouraging, or condoning abuse:

•

Major General Ryder's report
This assessment ofdetention operations was completed on November 6, 2003.
His report covered specific operations in Iraq and Afghanistan relating to the
conduct ofdetention operations, identifying some difficulties and making some
recommendations.

•

Army 1G Assessment
The Army Inspector General (IG), LTG Mikolashek, released a report in July
2004 that reviewed U.S. Army detainee operations in Afghanistan and Iraq. As
a part of this review, the Army IG inspected internment, detention operations,
and interrogation procedures. The inspection was not an investigation into
specific incidents but rather a comprehensive review of how the Army conducts
detainee operations in those two countries. The Army IG found that the Army is
properly accomplishing its mission with regard to the capture, care, and custody
of detainees, and in its interrogation operations. Although cases of abuse were
noted and numerous recommendations were made, the Report found no systemic
problem in detainee handling or flawed policy, doctrine, or training, and that the
overwhelming majority ofleaders and subordinate personnel understand and
adhere to the requirement to treat detainees humanely and consistent with the
laws of land warfare. The Report considered the abuse cases to be the result of
individual instances of indiscipline, and not representative ofpolicy, doctrine, or
training. This report was released in July 2004. This report is available at
http://www4.army.mil/ocpalreports/ArmyIGDetaineeAbuselindex.htrn (visited
March 1, 2005),
•

Jacoby Review
.
In May 2004, Lieutenant General Barno, Commander, Combined Forces
Command-Afghanistan, initiated an inspection of detainee operations in his area
of responsibility in Afghanistan. The inspection was conducted by Brigadier
General Jacoby during the period May 19 through June 26, 2004. The primary
purpose of this inspection was to ascertain the standard of treatment provided to
persons detained by U.S. forces throughout the detention process from capture
to release or detention. The Jacoby report did not disclose new allegations of
abuse or misconduct. The consistent and overarching observation that flowed
from the inspection was that forces assigned to the command understood the
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concept of humane treatment and are providing humane treatment to detainees
consistent with the principles ofthe Geneva Conventions.

•

Church Report
On May 25, 2004, the Secretary of Defense directed the Naval Inspector
General at that time, Vice Admiral Albert T. Church, III, to conduct a
comprehensive review of Department of Defense Detention Operations and
Detainee Interrogation Techniques in Guantanamo Bay, Cuba, Iraq, and
Afghanistan. The Executive Summary of the Report was released on March 10,
2005, and relied upon data available as of September 30, 2004. Vice Admiral
Church found that "the vast majority of detainees held" under DoD control
"have been treated humanely, and that the overwhelming majority of U.S.
personnel have served honorably." Executive Summary at 21. He found that
"without exception, that the DoD officials and senior military commanders
responsible for the formulation of interrogation policy evidenced the intent to
treat detainees humanely which is fundamentally inconsistent with the notion
that such officials or commanders ever accepted that detainee abuse would be
permissible." ld, at 3. Although noting a number of "missed opportunities in
the policy development process," for example, that "no specific guidance on
interrogation techniques was provided to the commanders responsible for
Afghanistan and Iraq...," he concluded that "authorized interrogation
techniques have not been a causal factor in detainee abuse." Id., at 13,21. He
could not identify a single overarching reason for abuse but addressed the
stressful combat situation, particularly at the point of capture, commenting that
"a breakdown of good order and discipline in some units could account for
some incidents of abuse." Id., at 16. Although he candidly pointed'out:
"[d]issemination of interrogation policy in Iraq and Afghanistan was generally
poor and interrogators fell back on their training and experience, often relying
on a broad interpretation of Army Field Manual F.M. 34-52," he continued,
"[w]hile these problems of policy dissemination and compliance were certainly
cause for concern, we found that they did not lead to the employment of illegal
or abusive interrogation techniques." Id., at 10. He found that interrogators
knew that abusive behavior was prohibited. Id, at 10, 15. The Executive
Summary of this Report is available at
www.defenselink.millnewslMar2005/d20050310exe.pdf (visited March 23,
2005).

•

Naval Inspector General Report
On January 13,2005, the Deputy Secretary of Defense directed the Naval
Inspector General, Vice Admiral Route, to review documents related to
detainees recently released under the Freedom ofInformation Act, including
those released by the Federal Bureau of Investigation, and conduct an inquiry
into any credible allegations contained in those documents with respect to
Afghanistan and Iraq. The Naval Inspector General will take any additional
actions with respect to these documents, as he deems appropriate. The report is
expected to be finalized soon.
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IV.

TRAINING OF U.S. ARMED FORCES

Personnel assigned to detention operations go through an extensive professional
and sensitivity training process to ensure they understand the procedures for protecting
the rights and dignity of detainees.
•

Personnel mobilizing to detention operations receive training prior to deployment
on detention facility operations, self-defense, safety, and rules on the use of force.
Before beginning work, personnel again receive training on the law of anned
conflict, the rules of engagement, the Standard Operating Procedures, military
justice, and specific policies applying to detention operations in their area of
responsibility. This is true of all service members deploying to serve in detention
operations. All U.S. service members receive general training on the law of
.
anned conflict, including the Geneva Conventions, as well as further law of
anned conflict training commensurate with their duties.

•

During their operational tours, U.S. service members continue to receive briefings
and are briefed again before every detainee movement on the rules, procedures,
and policies in operating detention facilities.

•

Mobile training te8.!Jls are visiting and training at every field detention site to
conduct training as required by commanders on the proper handling of detainees.

•

All interrogators and counterintelligence personnel are required to undergo 10
days of in-theater certification training. This certification process ensures all
applicable standards are understood and enforced.

•

Cultural awareness training is conducted for all military personnel during predeployment train-up and periodically while in the theater of operations.

• ' The Combat Training Centers operated by the U.S. Anned Forces in the United
States and Germany include the synchronization and integration of detainee
operations into every military unit's training rotation prior to deployment. The
U.S. Army Military Police School sends a Mobile Training Team to conduct
"train the trainer" education for their observer controllers on detainee operations.
This training covers detainee operations, personal safety, forced cell movements,
restraint procedures, communications with detainees, and case studies.
•

It is a violation ofthe Unifonn Code ofMilitary Justice (UCMJ) for military
personnel to abuse detainees and to fail to report instances of abuse. DoD
personnel are trained on this requirement and briefed regularly on their
responsibilities and the appropriate treatment of detainees, including the duty to'
report mistreatment.
.
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PART TWOINDIVIDUALS UNDER THE CONTROL
O;F U.S. ARMED FORCES IN IRAQ
CAPTURED DURING MILITARY OPERATIONS
I.

BACKGROUND ON U.S. MILITARY OPERATIONS IN IRAQ

The United States has approximately 150,000 U.S. military personnel currently
deployed in Iraq as a part ofthe United Nations Security Council-authorized MultiNational Force in Iraq (MNF-I). This force includes 28 other nations and the North
Atlantic Treaty Organization (which is providing training support) that are contributing
approximately 25,000 military personnel to conduct stability operations in Iraq.
Recognizing the importance of Iraq successfully transitioning to a democratically elected
government and aware that the situation in Iraq continues to pose a threat to international
peace and security, the Security Council authorized MNF-I to "take all necessary
measures to contribute to the maintenance of security and stability in Iraq ...." U.N.
S.C. Res. 1546 (June 8,2004). (At
.
htto://daccessdds.un.org/docfUNDOC/GEN/N04/381/16/PDF/N0438116.pdf'?0penEleme
ot (visited March 5, 2005». MNF-I plays a key role in supporting fIrst the Iraqi Interim
Government and now the Iraqi Transitional Government (lTG) in its effort to stabilize the
current security situation to allow democracy and freedom to take root.
In January 2005, Iraq held its fIrst democratic elections since the collapse of the
Saddam Hussein regime. Even though Iraq has elected a National Assembly, there are
still many hostile forces in Iraq that seek to thwart the country's transition to democracy
and the rule of law by destabilizing the country through hostile armed attacks against
civilian targets and MNF-I forces in Iraq. Saddam loyalists, fonner Baathists,
international terrorists, and Islamic jihadists-knowing that they cannot win at the ballot
box-have sustained a terrorist campaign designed to spread fear and instability.
MNF-I and Iraqi forces remain actively engaged in combating these hostile forces
across Iraq. An essential tool in the effort to contain and end the violence is the ability of
MNF-I to capture and detain hostile forces. UN Security Council Resolution 1546
authorizes MNF-I to take all necessary measures to contribute to the maintenance of
security and stability in Iraq in accordance with the letters to the President of the Security
Council from Dr. Ayad Allawi and Secretary of State Colin Powell. The letter from
Secretary Powell noted the MNF-I's readiness to undertake those tasks necessary to
counter the security threats posed by forces seeking to influence Iraq's future through
violence, including the internment of individuals "where this is necessary for imperative
reasons of security...." (At
http://daccessdds.un.org/docIUNDOC/GENIN04/381116/PDF1N0438116.pdf?OpenEleme
nt (visited March 5, 2005». In addition, because hostilities are ongoing, MNF-I may
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continue to detain enemy prisoners of war ("EPWs"). MNF-I may also continue to detain
civilian internees who were detained prior to June 28, 2004, as long as their detention
remains necessary for imperative reasons of security. Finally, in accordance with UN
Security Council Resolution 1546 and the authorities contained in Coalition Provisional
Authority Memorandum No.3 (Revised) (at htgd/cpairag.orglregulations/20040627 CPAMEMO 3 Criminal Procedures Rev .pdf(visited
March 1, 2005», which continues in effect under the Transitional Administrative Law
(TAL), MNF-I may apprehend individuals who are suspected of having committed
criminal acts and who are not considered security internees. MNF-I may retain such
criminal detainees in its facilities at the request of appropriate Iraqi authorities.

II.

DETAINEES - CAPTURING, HOLDING, AND/OR RELEASING
A.

Brief Overview of the Detainee Population Held by MNF-I

As of Aprill, 2005, MNF-I was detaining approximately 10,000 persons in Iraq.
The vast majority of the detainee population is composed of individuals who are held for
imperative reasons of security, consistent with UN Security Council Resolution 1546. In
addition to security internees, the MNF-I holds a small number of enemy prisoners of war
(EPWs) and, on behalf ofthe ITG, a number of persons suspected ofviolatinRIraqi
crirninallaws. The MNF-I has established several detention facilities in various locations
throughout Iraq that are operated by the U.S. Army under the Commander, MNF-I. The
U.S. Army operates three theater internment facilities: Abu Ghraib (Baghdad Central
Correction Facility), Camp Cropper, and Camp Bucca.

B.

Status Review of Detainees

Detainees under DoD control in Iraq undergo the review process described herein
in order to confirm their status and ensure that they are being lawfully detained. Upon
capture by a detaining unit, a detainee is moved as expeditiously as possible to a theater
internment facility. A military magistrate reviews an individual's detention to assess
whether to continue to detain or to release him or her. If detention is continued, the
Combined Review and Release Board assumes the responsibility for SUbsequently
re-yiewing whether continued detention is appropriate.
With regard to individuals detained on suspicion of having committed criminal
acts, those individuals must be handed over to Iraqi authorities as soon as reasonably
practicable, but may be held by MNF-I at the request of appropriate Iraqi authorities
based on security or detention facility capacity considerations. IfMNF-I retains custody
at the request of appropriate Iraqi authorities, CPA Memorandum No. 3 (Revised)
establishes a series of procedural protections for the detainee, including the right to
remain silent, to consult with an attorney within 72 hours, to be promptly informed in
writing of charges, to be brought before a judicial officer within 90 days, and to be visited
by the ICRC. (At http://cpa.
Irag.orglregulations/20040627 CPAMEMO 3 Criminal Procedures Rev .pdf(visited
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C.

Decisions on Continued Detention or Release of Detainees

The Combined Review and Release Board (CRRB) was created to provide
detainees a method by which to have their detention status reviewed. The CRRB first
met on August 21,2004. It consists of nine members: three MNF-I officers, and two
members each from the Iraqi Ministry of Justice, Ministry of Interior, and Ministry of
Human Rights. The CRRB meets and reviews detention cases several times per week
and reviews approximately 100 detainee files at each meeting. Consistent with the
Geneva Conventions, the case of each detainee who remains in MNF-I custody is
reviewed at least once every six months. The CRRB reviews the status of each detainee
and recommends one of three options: release, conditional release, or continued
detention. A detainee may file an appeal of internment to the CRRB for its consideration.

Ill.

DETAINEES - TREATMENT
A.

Description of Conditions of Detention in U.S. Department of Defense
Facilities

The primary goal of U.S. detention operations in Iraq has been to operate safe,
secure, and humane facilities consistent with the Geneva Conventions. U.S. and other
MNF-I forces continue to make physical improvements to various facilities throughout
Iraq. Since the incidents of abuse at Abu Ghraib, the United States has made substantial
improvements in all areas of detention operations, including facilities and living
conditions. Families may visit detainees at visitation centers set up at each detention
facility. Detainees are provided with prayer materials and allowed the open and free
expression of religion in detention. Detainees also have access to medical facilities,
consistent with the Geneva Conventions.
.
As set forth in CPA Memorandum No.3 (Revised), and consistent with the
provisions ofthe Geneva Conventions, the ICRC is provided with notice of detainees
under the control of the U.S. contingent ofMNF-I as soon as reasonably possible and is
provided access to such detainees unless reasons of imperative military necessity require
otherwise.

B.

Allegations of Mistreatment of Persons Detained by the Department
of Defense
.
1.

Legal Framework

As noted above, UN Security Council Resolution 1546 provides authority for
MNF-I security operations in Iraq, including detention operations. The United States
contingent to MNF-I conducts its detention operations consistent with the Geneva
Conventions, including pursuant to CPA Memorandum No.3 (Revised), for operations
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~er June 28, 2004. The Geneva Conventions prohibit the torture or inhwnane treatment
of protected persons. U.S. Armed Forces in Iraq are instructed to act consistently With
these provisions with regard to all detainees and to treat all detainees hwnanely.
Detainees under the control of U.S. Armed Forces receive shelter, food, clothing, water,
and medical care, and are able to practice their religion.

U.S. military interrogators are instructed to conduct interrogations consistent with
the Geneva Conventions. Further, military regulations strictly regulate permissible
interrogation techniques. Department of Defense policy prohibits the use of force, mental
and physical torture, or any form of inhwnane treatment during an interrogation.
Army RegulatiOlf(AR) 190-8 provides policy, procedures, and responsibilities for
the administration and treatment of enemy prisoners of war (EPW), retained personnel
(RP), civilian internees (CI), and other detainees in the custody of U.S. Armed Forces.
(At <http://www.usapa.army.mil/pdffiles/rl90 8.odf->(visited March 1, 2005).) A.R.
190-8, paragraph 1-5 provides:
General Protection Policy
a. U.S. policy, relative to the treatment of EPW, CI and RP in the custody
ofthe U.S. Armed Forces, is as follows:
(1) All persons captured, detained, interned, or otherwise held in U.S.
Armed Forces custody during the course of conflict will be given humanitarian
care and treatment from the moment they fall into the hands of U.S. forces until
final release or repatriation.
(2) All persons taken into custody by U.S. forces will be provided with the
protections of the 1949 Geneva Convention Relative to the Treatment of Prisoners
of War (GPW) until some other legal status is determined by competent authority.
(3) The punishment of EPW, CI, and RP known to have, or suspected of
having conunitted serous offenses will be administered [in accordance with] due
process oflaw and under legally constituted authority per the GPW, [the 1949
Geneva Convention Relative· to the Protection of Civilian Persons in Time of
War], the Unifonn Code ofMilitary Justice and the Manual for Courts Martial.
(4) The inhwnane treatment of EPW, CI, and RP is prohibited and is not
justified under the stress of combat or with deep provocation. Inhumane
treatment is a serious and punishable violation under international law and the
Unifonn Code of Military Justice (UCMJ).

.

1

;

Department of Defense Directive·51 00.77 further requires that all possible,
suspected, or alleged violations of the law of war committed by United States persons be
promptly reported, thoroughly investigated, and, where appropriate, remedied by
corrective action. December 9, 1998, (at
<http://www.dtic.mil/whs/directives/corres/pdf2/d51 0077p.pdf> (visited February 28,
2005». For instance, U.S. forces are subject to the Unifonn Code of Military Justice
(UCMJ), which provides that those who commit acts of abuse, whether or not during an
armed conflict, are criminally liable for their·actions. Article 93 of the UCMJ provides:
"Any person subject to this chapter who is guilty of cruelty toward, or oppression Or
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maltreatment of, any person subject to his orders shall be punished as a court·martial may
direct." A member ofthe u.s. forces suspected ofmistreating or abusing persons in U.S.
detention is subject to prosecution under this and other applicable UCMJ articles. l1

In the context ofdetainee abuse cases, however, not every potentially applicable
offense under the UCMJ has a parallel federal offense in the U.S. Code. For example,
Failure to Obey a Lawful Order or Regulation (Article 92" UCMJ) and Dereliction of
Duty (Article 92, UCMJ) have no comparable federal offenses in this context.
Additionally, the Federal Torture Statute requires a much higher level of proof than does
Article 93 of the UCMJ, which p~shes cruelty and maltreatment ofprisoners.
Interrogation techniques are developed and approved to ensure compliance with
legal and policy requirements. Throughout the conflict in Iraq, military, policy, and legal
officials have met, and continue to meet, regularly to review interrogation policy and
procedures to ensure their compatibility with applicable,domestic and international legal
standards. The United States will continue to review and update its interrogation
techniques in order to remain in full compliance with applicable law.

2.

Reports of Abuses and Summary of Abuse Investigations

Allegations of detainee abuse at the Abu Ghraib prison in Iraq became known
with incidents documented in photographs and reported in the media throughout the
world. These photographs, which depict ~ts of abuse and mistreatment of detainees by
certain members of the U.S. Armed Forces in Iraq, were abhorrent to Americans and
others around the world. These incidents, which to date could implicate 54 military
personnel, involved blatant violations of the UCMJ and the law of war. The United
States deeply regrets these abuses. Indeed, on May 6, 2004, the President of the United
States said that he "was sorry for the humiliation suffered by the Iraqi prisoners and the
humiliation suffered by their families" and that "the wrongdoers will be brought to
justice...." Remarks by President Bush and His Majesty King Abdullah II of the
Hasliemite Kingdom of Jordan at .
<http://www.whitehouse.gov/newslreleases/2004/05/20040506-9.html> (visited March 1,
2005).

11
A member, or former member, of the U.S. Armed Forces, who is either a national of the United
States, or later present in the United States, who, while outside the United States, commits acts that meet
the definition of torture under the relevant statute (18 U.S.C. §2340) is subject to federal prosecution under
18 U.S.c. §2340A, ifnot previously prosecuted for the same offense under the UCMJ.

A member ofthe U.S. Armed Forces who, while outside the United States, commits a crime that
would constitute a felony if committed.within the Special Maritime Territory Jurisdiction (SMTJ), and does
so with one or more other defendants, at least one of whom is not subject to the UCMJ, is subject to federal
prosecution. Similarly, a former member ofthe U.S. Armed Forces, who has ceased to be subject to the
UCMJ, but who was subject to the UCMJ at the time that he was outside the territory of the United States
and committed a crime that would be a felony if committed within the SMTJ, is subject to federal criminal
prosecution.
.

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In response to these allegations of abuse. the U.S. Government has acted swiftly
to investigate and take action to address the abuses. The United States is investigating
allegations of abuse thoroughly and making structural. personnel, and policy changes
necessary to reduce the risk of further such incidents. All credible allegations of
inappropriate conduct by U.S. personnel are thoroughly investigated. A rapid response to
allegations of abuse, accompanied by accountability, sends an unequivocal signal to all
U.S. military personnel and the international community that mistreatment of detainees
will not be tolerated under any circwnstances. To the extent allegations ofmisconduct
have been levied against private contractors. the U.S. Department of Justice has
conducted or initiated investigations. For example, following the reports at Abu Ghraib,
the Department ofJustice received referrals from Military Investigators regarding
contract employees and their potential involvement in the abuses. DOJ subsequently·
opened an investigation.

At the direction of the President, the Secretary of Defense, and the military chain
of command, nine different senior-level investigative bodies convened to review military
policy from top-to.bottom in order to understand the facts in these cases and identify any
systemic factors that may have been relevant. The assignment ofthese entities was to
identify and investigate the circumstances of all alleged instances of abuse, review
command structure and policy, and recommend personnel and policy changes to improve
accountability and reduce the possibility of future abuse.
The United States has ordered a number of studies and reports subsequent to
allegations of mistreatment in Iraq. particularly at Abu Ghraib. Again, as described in
Part one ofthis Report, it is impossible to characterize and summarize fully these reports,
but it can be stated that although these investigations identified problems and made
recommendations, none found a governmental policy directing. encouraging. or
condoning the abuses that occurred. What follows is a brief summary of each of the
investigative reports:

•

Miller Report
Major General Miller's report on detention and interrogation operations in Iraq
was completed on September 9, 2003. General Mjller's report assessed the
conditions and operations of detention facilities in Iraq.

•

~d~R~orl
"
Major General Ryder's assessment of detention operations in Iraq was completed
on November 6, 2003, as described in Part 1, Section III.B.3. General Ryder's
report covered specific operations in Iraq and Afghanistan relating to the conduct
of detention operations.

•

Taguba Report
Major General Taguba completed his investigation"into detainee operations and
the SOOth Military Police Brigade on March 12, 2004. This report focused
primarily on the allegations of detainee abuse at the Abu Ghraib detention facility
arising from disclosures made by U.S. service members.
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•

The Army Inspector General Report
The Anny Inspector General conducted a review of alleged detainee abuse
committed by U.S. Army personnel in Iraq and Afghanistan, which was released
in July 2004, as described in Part 1, Section 111.8.3. (At
<http://www4.anny.miVocpalreportslAnnyIGDetaineeAbuseJ'DAIG%20Detainee
%200perations%20Inspection%20Report.pdf> (visited March 1,2005».

•

Report by Major General Fay, Lieutenant General Jones, and General Kern
This was completed on August 13, 2004. This report covered Military
Intellige~ce (MI) and DoD contractor interrogation policies in Iraq. This report
revealed that 27 military personnel or civilians appeared to have abused Iraqi
prisoners due to criminal activity or confusing interrogation rules. Twenty-three
military intelligence personnel and four civilian contractors were alleged to be
involved in abuse. Eight others, including six military officers and two civilians,
.were alleged to have learned ofthe abuse and of failing to report the abuse to .
authorities. This report found 44 cases of abuse. In an interview after the report's
release, General Kern told reporters, "We found that the pictures you have seen,
as revolting as they are, were not the result of any doctrine, training or policy
failures, but violations of the law and misconduct." (At
http://www.defenselink.milltranscriptsl2004/tr20040825-1 224.html (visited April
5,2005». The report found that the abuses were carried out by a small group of
"morally corrupt" soldiers and ~ivilians and caused by a lack of discipline by
leaders and soldiers of the brigade and a "failure or lack ofleadership by multiple
echelons" within a unit within the U.S. military forces in Iraq. See Report at 2.
This report was publicly released and can be found at
<http://news.findlaw.comlhdocs/docsldod/fay82504rot.pd£> (visited February 28,
2005).

•

Schlessinger Report
This Report was completed in August 2004. The Secretary of Defense named a
panel offour distinguished former public officials, including two former
Secretaries of Defense, to evaluate the areas under review in the ongoing
investigations and to determine if there was a need for additional areas of
investigation. The Report found that "[n]o approved procedures called for or
allowed the kinds of abuse that in fact occurred. There is no evidence of a policy
of abuse promulgated by senior officials or military authorities." See Report at 5.
It stated that ''the most egregious instances of detainee abuse were caused by the
aberrant behavior of a limited number of soldiers and the predilections of the noncommissioned officers on the night shift of Tier 1 at Abu Ghraib," although
noting that "commanding officers and their staffs at various levels failed in their
duties and that such failure contributed directly or indirectly to detainee abuse."
See Report at p. 43. This report was publicly released and can be found at
<http://www.defenselink.mil/newslAug2004/d20040824fjnalreport.pd£> (visited
February 28,2005).

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•

Formica Report
Brigadier General Fonmca initiated a report on May 15.2004 that focuses on
allegations ofabuse by Special Operations Forces in Iraq. The investigation is
complete. The report's contents are classified because of the highly sensitive
operations that were examined and that remain ongoing.

•

Church Report
Vice Admiral Church's comprehensive review of Department of Defense
Detention Operations and Interrogation Techniques was completed on March 10,
2005 and is described in Part One, Section III.B.3. of this Annex. The Executive
Summary of the Report is available at
<http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf> (visited March
23.2005).

•

Naval Inspector General Report
The Naval Inspector General (Vice Admiral Route) is conducting a review of
documents related to detainees recently released under the Freedom of
Information Act and is expected to release his findings soon as described in Part
1, Section III.B.3.

From the nine reports that have been completed, it is clear that serious abuses
occurred, but it is also clear that the vast majority ofthe 150,000 military personnel who
that have been stationed in Iraq have conducted themselves honorably. The U.S. Armed
Forces is committed to ensuring that those who committed abuses are accountable and
that such abuses do not occur again.
It is important to remember that the U.S. Armed Forces began the process of
assessing detainee operations, investigating allegations of abuse, and implementing
changes at Abu Ghraib, well before the media and the international community began to
focus on detainee abuse at that facility. Both before and after the public disclosure of
these abuses, the United States pursued swift and thorough investigations of problems.
In conducting the major reviews, the United States reached out broadly,
interviewed more than 1,700 people, and compiled more than 13,000 pages of
information to address detainee abuse. Much of this information is publicly available. In
an effort to be transparent and keep the public and our government informed, the .
Department of Defense delivered more than 60 briefings to the U.S. Congress.

The Department of Defense has improved its detention operations In Iraq and
elsewhere, improvements have been made based upon the lessons learned, and in part
because of the broad investigations and focused inquiries into specific allegations. These
comprehensive reports, reforms, investigations and prosecutions make clear the
commitment of the Department of Defense to do everything possible to ensure that
detainee abuse such as occurred at Abu Ghraib never happens again.

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Finally, the highest levels of the Department of Defense are reviewing and acting
on all ofthe reports and investigations. The Department has established an interdepartmental committee, called the Senior Leadership o.versight Committee. that
comprises senior members of the Joint Staff, the Provost Marshal General's Office, the
Office of Detainee Affairs, and the Military Departments engaged in detention
operations.
This group is specifically responsible for ensuring that the recommendations of
the panels and investigations are followed through to their conclusion, and for monitoring
changes made by combatant commands and the relevant offices in the Department of
Defense. To date, the committee has met three times and has reviewed more than 600
recommendations. The Department has already implemented a significant number of
recommendations and is examining the remainder ofthem. The Oversight Council will
continue to meet on a periodic basis until the recommendations of the investigations and
panels have been addressed fully.

3.

Summary of Actions to Hold Persons Accountable

The Department of Defense takes. all allegations of abuse seriously and
investigates them. Those people who are found to have committed unlawful acts are held
accountable and disciplined as the circumstances warrant. Investigations are thorough
and have high priority.
Some criminal investigations have been completed and others continue with
respect to abuse of detainees in Iraq. Although it would be inappropriate to comment on
the specifics of on-going investigations, as of March 1,2005, 190 incidents of abuse have
been substantiated. Some are minor, while others are not: penalties have ranged from
administrative to criminal sanctions, including 30 courts-martial, 46 non-judicial
punishments, 15 reprimands, and 15 administrative actions, separations, or other
administrative relief. A number of actions are pending.
Some examples of service members convicted at a court-martial 12 for acts related
to detainee maltreatment include:
12

U.S. Armed Forces are subject to the Unifonn Code of Military Justice (UeMJ), which provides
that those Who commit acts of abuse, whether or not during an armed conflict, may be held criminally
liable for their actions. Article 93 of the UCMJ provides: "Any person subject to this chapter who is guilty
of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a
court-martial may direct." A member ofthe U.S. Armed Forces who is suspected of mistreating or abusing
persons in U.S. detention is subject to prosecution under this and other applicable UCMJ articles.
Other charges that may apply will depend on the circumstances of the abuse. For example, U.S. Armed
Forces may be charged with assaUlt, Article 128, UCMJ, or ifthe abuse results in the death ofa detainee,
Article 118, Murder, or Article 119, Manslaughter, or Article 134, Negligent Homicide. For allegations of
abuse involving theft of money or other possessions from a detainee, U.S. Armed Forces may be charged
with Article 121, Larceny. For allegations of sexual assault, U.S. Armed Forces may be charged with
Article 120, Rape, Article 125, Sodomy, or Article 134, Indecent Assault.

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(1) A Staff Sergeant, charged with numerous offenses related to maltreatment of
detainees at the Abu Ghraib Detention Facility, pled guilty on October 21,2004, at a
General Court-Martial to conspiracy, maltreatment of detainees, simple battery, and
indecent acts. The Military Judge sentenced him to 10 years confinement, total
forfeitures of pay and allowances, reduction from Staff Sergeant (a noncommissioned officer rank) to the lowest enlisted grade (enlisted grade of Private),
and discharge from the U.S. Army with a dishonorable discharge. Because of a plea
agreement, the Staff Sergeant will ultimately be confined for eight years, if he
cooperates with future prosecutions per the plea arrangement.
(2) A Sergeant, charged with numerous offenses related to maltreatment of detainees
at the Abu-Ghraib Detention Facility, pled guilty on February 4, 2005, to battery,
dereliction of duty, and false official statement. A court-martial panel sentenced him
to confinement for 6 months, reduction to the lowest enlisted grade, and discharge
from the U.S. Army with a bad conduct discharge.
(3) A Specialist charged with conspiracy to maltreat subordinates, dereliction of duty
of duty, and maltreatment of detainees at the Abu Ghraib Detention Facility, pled
guilty to all charges at a Special Court·Martial on May 19, 2004. The Military Judge
sentenced him to confi~ement for a period of 12 months, reduction in rank to the
lowest enlisted grade, and a discharge from the U.S. Army with a bad conduct
discharge.
(4) A Specialist, charged with numerous offenses related to maltreatment of detainees
at the Abu Ghraib Detention Facility, was convicted on January 7, 2005, by a 10member panel of five counts, including assault, maltreatment, and conspiracy. He
was sentenced to 10 years confinement, total forfeitures of all pay and allowances,
reduction to the lowest enlisted grade, and a dishonorable discharge from the U.S.
Army.

(5) A Specialist, charged with participating in and directing the abuse of two Iraqi
detainees by handcuffing the detainees together naked at the Abu Ghraib Detention
Facility, was tried at a Special Court-Martial on September 11,2004, and convicted of
conspiracy to maltreat detainees and the maltreatment of the detainees. The
Specialist was sentenced to confinement for eight months, a reduction to the lowest
enlisted grade, and a bad conduct discharge from the U.S~ Army.
Over the course 0[2005, substantially more information will become public on
these matters as accountability processes come to completion. Accordingly, the United
States will be prepared to present further information on the status of its investigations
and prosecutions during its presentation ofthis Report to the Committee Against Torture.

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C.

Remedies for Victims of Abuse

The United States is committed to adequately compensating the victims of abuse
and mistreatment by U.S. military personnel in Iraq. The U.S. Army is responsible for
handling all claims in Iraq. Several claims statutes allow the United States to compensate
victims of misconduct by U.S. military personnel. The primary mechanism for paying
claims for allegations of abuse.and mistreatment by U.S. personnel in Iraq is through the
Foreign Claims Act (FCA), 10 U.S.C. § 2734. Under the FCA, Foreign Claims
Commissions are tasked with investigating, adjudicating, and settling meritorious claims
arising out of an individual's detention. There are currently 78 Foreign Claims
Commission personnel in Iraq. Claims may be submitted to the claims personnel, who
regularly visit detention facilities, or they may be presented to the Iraqi Assistance
Center. For persons with U.S. residency, claims may be brought pursuant to the Military
Claims Act, 10 U.S.C. § 2733. All allegations of detainee abuse are investigated by the
U.S. Army Claims Service (USARCS), and the Department of the Army Office ofthe
General Counsel is the approval authority.
In addition, the Secretary of Defense has directed the Secretary of the Army to
review all claims for compensation based on allegations of abuse in Iraq and to act on
them in his discretion. In instances where meritorious claims are not payable under the
FCA or the MeA, the Secretary ofthe Army is responsible for identifying alternative
authorities to provide compensation and either to take such action or forward the claim to
the Deputy Secretary of Defense with a recommendation for action.

IV.

TRAINING OF U.S. ARMED FORCES

As discussed in the section on training in Part I, Section IV, ofthis Annex, U.S.
Armed Forces receive significant training before being deployed and during their
deployment. The United States incorporates by reference that section and reiterates that
all employees and armed forces deployed in detention missions receive extensive training
and education on the laws and customs of armed conflict, including humane treatment
procedures and the obligations of the United States in conducting detention operations.
With respect to Iraq, U.S. armed forces serving as interrogators and detention personnel
are also trained to conduct themselves in accordance with the principles (including the
prohibition on torture) set forth in the Geneva Conventions and to treat detainees
humanely regardless of status.
Since allegations of abuse became known, corrections specialists are now
stationed at detention facilities to provide additional skills and experience to the detention
mission. In addition, the Department of Defense is developing procedures and policies to
ensure that contractors used by the Department receive training and understand the U.S.
Government's commitments and policies before being deployed in detention operations.

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V.

LESSONS LEARNED AND POLICY REFORMS

It is clear that certain individual service members committed serious abuses during
U.S. detention operations in Iraq. Apart from proceedings to hold accountable the
perpetrators of abuse, the U.S. Armed Forces have been studying the larger question of
how to ensure that these types of abuses will not occur in the future. The nine detainee
reports released to date have made more than 300 recommendations for short and longterm changes to improve detainee handling, accountability, investigation, supervision, .
and coordination. Further investigations remain in progress. The Office ofthe Secretary
ofDefense, the Military Departments, the Combatant Commands, and the Joint Staff
have each taken concrete steps to implement many of these changes and will continue to
do so.

The Department of Defense has responded to the abuses committed by taking steps
designed to improve senior-level supervision and coordination of detainee matters. The
Secretary of Defense has:
•

Established a Detainee Affairs office overseen by the Deputy Assistant
Secretary of Defense for Detainee Affairs;

•

Established a Joint Detainee Coordination Committee on Detainee Affairs;

•

Issued policy for "Handling of Reports from the International Committee of
the Red Cross";

•

Issued a policy on "Procedures for Investigations into the Death of Detainees
in the Custody of the Armed Forces of the U.S."; and

•

Initiated a department-wide review of detainee-related policy directives.

Other steps that the Department of Defense has taken include:
•

Designation of a Major General as Deputy Commanding General for Detainee
Operations, MNF-I. He is the Department's primary point of contact with the
Iraqi Transitional Government for detainee operations. He is responsible for
ensuring that all persons captured, detained, interned, or otherwise held in
under MNF-I control are treated humanely and consistent with the Geneva
Conventions and all applicable law from the moment they fall into the hands
of U.s. forces until their final release from MNF-I control or their repatriation.
He ensures that it is made clear that inhumane treatment is prohibited and is a
punishable violation under the Uniform Code of Military Justice.. All service
members have an obligation to report allegations of detainee abuse to the
responsible command or law enforcement agency.

•

The posting of the Geneva Conventions and Camp rules in a language the
detainee can understand.
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Ensuring widespread publication of the findings of reports and investigations
by publishing unclassified infonnation on the Department of Defense website
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1-.0538
May 1, 2006

. Dear Mr. Bellinger:
I promised during our recent Advisory Committee meeting to send you a fuller list of
questions that might be useful with respect to your prospective oral presentation before
the Committee on Torture. Knowing how well L lawyers prepare, I suspect that none of
the questions/issues below will come as a surprise but I am forwarding tbem in case they
might prove useful. (These are, of course, simply for your use and I certainly do not
expect answers.)
At the outset, allow me to commend your office for the May 6, 2005 U.S. Report to the
COT that you sent to us. It was the first time that I read it closely and it is a substantial
achievement in terms of depth of analysis and respect for intemationallaw. Indeed, its
sheer level of detail, particularly with respect to U.S. statutory law and caselaw, inspires
some of the questions below, simply because at least on my reading, the U.So's answers
with respect to these points appear more ambiguous:
(I) Given press allegations of secret CIA flights involving "ghost detainees," it seems
particularly important to be clearer with respect to whether the USG views any or
all of its obligations under the Torture Convention, and underlying customary
law, to apply to its actions abroad, including actions by the CIA in Europe, or by
US agents in Guantanamo, Afghanistan, and Iraq. While the U.S. Torture Report
includes a blanket affirmation that the U.S. does not engage in torture anywhere
and does not claim a "wartime" exception to this ban (see para. 6, p. 4), elsewhere
the Report affirms only that certain detainees only have the right to be treated
"humanely" (p. 47).
(2) Which U.S. laws criminalize or otherwise penalize the activities of all of our
agents who act abroad, including the CIA, should they be involved in the arrest
and subseqUent rendering of individuals to places where they are likely to be
tortured? (The relevant paragraphs of the report (paras. 44. 49, 52) appear to
suggest that the rendering of "ghost detainees" abroad may not be penalized under
U.S. laws or that U.S. laws criminalize only the actions of those supporting the
mission of the Department of Defense.)
(3) If even the decision to extradite made on US territory is not subject to judicial
review (para. 42), does this mean that there is no opportunity for meaningful
judicial scrutiny of decisions to render individuals to countries abroad (whether or
not this occurs with respect to individuals in or out of the United States)?
Assuming this to be the case, is it against the clearly enunciated policy of the
USG not to render or transfer individuals to countries that our own State
Department Huinan Rights reports brand as regular practitioners oftorture?
(4) Given our reservation with respect to article 16 of the Torture Convention
(discussed at para. 88), is it the U.S. position that the protection against cruel,
inhuman or degrading treatment does not apply abroad since our own
. constitutional protections do not so extend? (And is this the meaning to be
attributed to the President Bush's signing statement for the McCain bill?) If so, it

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 04 AUG 2009 200706444

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is our position that US agents are free to treat detainees "cruelly" or in an
"inhumane" fashion and can render individuals to countries where such treatment
is to be expected? [With respect to the U.S. reservation to article 16, I am sure
that you are aware that it raises the reciprocity problem noted by Professor Franck
in the course of our meeting. As I un\lerstand it, we have raised objections (as in'
the ICCPR) with respect to simillirly "self-judging" reservations made by Islamic
states (in which human rights norms are made subject to Sharia law as determined
by their religious courts from time to time) on the grounds that such self-judging
reservations gut the obligation to "respect and to ensure" human rights treaties
and are therefore inconsistent with these treaties' object and purpose. As you
know, the Human Rights Committee has agreed with this and I would assume that
the propriety of the U.S. reservation to article 16 will continue to be questioned on
comparable grounds.]
(5) You can expect close questioning on whether the U.S. permits coerced statements
to be used as evidence (cf. article 15 of the Torture Convention) in any and all of
its military commissions.
(6) Does the U.S..still affirm that Geneva law continues to apply to Iraq despite the
formal end of occupation pursuant to Security Council resolutions? Ifso, what is
the U.S.'s position on the continued application of article 49 of Geneva IV .
(barring the transfer or deportation of protected persons from occupied territory
including for purposes of facilitating interrogation)? [Committee members may
be aware that the US has not renounced the legal analysis contained in the Mar.
19, 2004 draft memorandum by then Assistant Attorney General Jack Goldsmith,
even though this memo has been widely disseminated and is included in
Greenberg and Dratel's The Torture Papers. There may therefore be
understandable confusion about whether the US has ever transferred individuals
from inside Iraq since its invasion, pursuant to that memo's (surely overbroad?)
claims that transfers of any aliens or even Iraqis to facilitate interrogation is legal
so long as "temporary."]
.
(7) It is, of course, to be expected that the US wiil be closely questioned as to which
interrogation techniques it now sees as permissible despite the treaty and
customary prohibitions on torture and cruel, inhuman treatment.. [This is
especially likely given Attorney General Gonzales's refusal to rule out such
egregious techniques as water-boarding.] To the extent the US military or other
services is now working on a new list of permissible interrogation techniques, to
what extent has the US taken into account the detailed reports issued by, for
example, the UN Special Rapporteur on Torture with respect to such techniques?
(8) At p. 52, the US report continues to affirm that since there is "no doubt" that
members of the Taliban and Al Qaida are not entitled to the protections of
Geneva, article 5 status tribunals are not required. Keep in mind that this
assertion is especially likely to be questioned with respect to individuals that
come into US custody far from any battlefield and as a result of the say so of
unknown agents responding to bounty payments. Is the US claiming that it can
hold anyone from any nationality without reasonably prompt scrutiny ofthe status
of such individuals? This claim is all the more likely to be questioned since in the
absence of article 5 tribunals, the US appears to be claiming a right to indefinite

2

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and prolonged arbitrary detention - which in itself appears to be a jus cogens ,
violation even under the US's relatively conservative US Restatement of Foreign
Relations. This is an instance where the US assertion that neither Geneva nor
human rights law applies appears to result in a legal blackhole that is
fundamentally repugnant to the rule of law.
(9) Questions are likely to be expected even by the COT which is not expert on such
matters with respect to US claims that it has the right to use specially designed
military commissions (whose procedures fall short ofthose applied to US
military) to try detainees of "war crimes." Apart from predictable questions as to
the fairness (and stability of) the procedural and evidentiary rules applied by such
commissions, questions are likely to be raised about whether the crimes that we
are charging (e.g., waging war against the US military or engaging in a conspiracy
towards that end) are truly "war crimes" as understood by international
humanitarian law.
Hope that at least some of the above prove useful to you and/or Bob Harris.
Finally, I want to express my deep thanks to you for including me in your Advisory
Committee. I deeply appreciate the frankness and openness with which you have
conducted these meetings, including with respect to sensitive topics such as the subject of
this letter. For me, being a member ofthe Advisory Committee these many years has
made the remoteness ofthe Ivory Tower a little more bearable and has only enhanced my
historic respect for L, including my former colleagues (and their much younger
colleagues, some of whom have been my students). Since I recognize that you will be reconstituting your committee and I may not be incl\lded'in its new membership, I thought I
would take the opportunity to express my sincere appreciation.
Of course, whether or not I am a member of your new Advisory Committee, I hope that
we can collaborate on matters of mutual interest during my Presidency of the ASIL.

Sincerely yours,
Jose E. Alvarez

3

UNCLASSIFIED
L0626

UNCLASSIFIED
Schou, Nina E

,

~~~~~a~,i11pnI29. 20069:59 Ad

From:
Sent:
To:
Cc:
SUbject:

Bob Harris; Nina Schou
Sleven tliII; Bob Harris; Nina Schou; Jullanna Bentes
Script thus far

Attachments:

CAT_scripldoc

RELEASED IN PART
B6

B6

CAT_scriptdoc
(183 K8)

Bob,

I've gotten about halfway through the script (up to question 28) and have managed to cut
about 10 pages so far, which is crucial since Ju1ianna and I discovered yesterday that it
takes between 1:15 to 1:30 to read one double-spaced page. We are currently down to 66
pages, and assuming the same "rate of cutting for the second half of the document as I did
in the first half, that should give us about 55 pages in the end. This would work out to
70-80 minutes for the whole thing, still a touch too long. We may have to cut more
radically and/or identify certain answers that could be combined~ Some of the stuff on
DHS procedures might be a good candidate but let me think about it.
We also need to bear in mind that there are at least two questions whether the Army Field
Manual comes up and where additional material might be required.
I have to go help a friend move today and won't be able to turn to this again until late
this afternoon. I'm sending it to you now in case you o~ Nina want to work on it further
during the day.
Call if you have any questions or want to touch base

--1

__

B6

Nina, if you get a chance, take a look at how I restructured the forced disappearances
question: it seemed a bit hard to understand before.
Steve

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
DATE/CASE ID: 12 AUG 2009 200706444

1

UNCLASSIFIED
L0627

UNCLASSIFIED

:L~AS~~

_SC_h_OU;;.:".:.:.Ni_na_E;;;...
From:
Sent:
To:
Subject:

Gorove, Katherine M
Monday, May 02, 2005 9:33 AM
HarriS, Robert K; Schou, Nina E
FW; CAT Annex

Attachments:

Legal-#10876-V1-CAT_Annex_apriL29_almost.JinaI.DOC

--·-onginal Message---..
From:
Gorove, Katherine M
Sent:
Friday, ADn] 29. 2005 8:07 PM

To~
Subject:

I

'rC/i.'iTTAA.n;;;:""";;;;---------------...I

IN PARlo / if

B6

Here it is; after hours of technical problems, I think it's finished, But, I think we need to check on consistencies between its
cover sheet and other annexes, Also, Nina, you need to indent your footnotes in main report, Also, I wonder if each annex
shouldn't have a header in it; will the main report have a header, just so every page, says 2nd periodic report of United
States to U,N, CAT. Committee and then annexes also say their annex number. I think ifd be easier for the world & not
that hard to do, Nina, I can't locate Prosper and Waxman, My e-mail keeps crashing. Can you try to pull up on Monday
morning.

lega~#10876-vl-e

Enjoyl

AT...,Anne>L.apr..,

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE!D: 04 AUG 2009 200706444

1

UNCLASSIFIED
L0628

UNCLASSIFIED

RELEASED IN PART
1-t:lz--7
B6

Schou, Nina E

Hill, Steven R
Thursday, March 23, 2006 12:06 PM
Hill Steven R Christo her N. Cam onov
'7-========_,-;;-=:-;,====.,-J.igor.timo eyev dhs.gov;
Andrew.Steinberg@dhs.gov; Brian.Kelliher1@dhs.gov; daniel.brown@dhs.gov;
molly.groom@dhs.gov; nader.baroukh@dhs.gov; roger.sagerman@dhs.gov;
ron.rosenberg@dhs.gov; Ronald.whilney@dhs.gov; Thomas.Monheim@usdoj.gov;
omar.vargas@usdoj.gov; rena.comisac@usdoj.gov; laurence.rothenberg@usdoj.gov;
matthew.friedrich2@usdoj.gov
Harris, Robert K; Brancato, Gilda M; Schou, Nina E;
IBentes,
JUlianna W; Grummon, Caroline E.; Haines, Avril D; Hodgkinson, sandra L; Johnson, Thomas
A; Lagon, Mark P; Noyes, Julieta V (DRL)
RE: Draft Consolidated CAT Replies for Interagency Review

From:
Sent:
To:

I

Cc:
Subject:

B6

B6

LEGAL-#23552-v1-CAT_agencLquestions_bLpage.DOC

Attachments:

Attached is list of questions posed to each agency. These questions appear throughout the text circulated yesterday, but
having them all in one place might prove useful in your review.

LEGAl-#23552-vlCAT3gency_que.••

From:
sent:

Hill, Steven R

Wednesday, March 22, 2006 5:52 PM

'01ristoPher_N._camponovol~~~;:::~;::~='::;;::::::;;;::;:;;~:::;:::;:;;;::;;::::::::;;:;:::::;::====:J

'Igor.timofeyev@dhs.gov'; 'Andrew.Stelnberg@dhs.gov'; ·Brian.Kelliherl@dhs.gov'; 'danlel.brown@dhs.gov';
'molly.groom@dhs.gov'; 'nader.barou!<h@dhs.gov'; 'roger.sagerman@dhs.gov'; 'ron.rosenberg@dhs.gov';
'Ronald.whltlley@dhs.gov'; 'Thomas.Monhelm@usdoJ.goll; 'omar.vargas@usdoJ.gov'; 'rena.comisac@usdoj.gov';
'Iaurence.rolhenberg@usdoj.gov'; 'matthew.friedrich2@usdoj.gov'

B6

Cc:

Harris, Robert K; Brancato, Gilda M; SChou, NIna E;I
lsentes, Julianna W; Grumman, caroline E.; Haines,
Avril 0; Hodgkinson, sandra lj Johnson, Thomas Aj lagon, Mark P; Noyes, Julieta V (DRl)

B6

Subject:

Draft Consolidated CAT Replies for Interagency Review

To:

Dear Interagency CAT Team:
On behalf of Bob Harris and my State colleagues, I'd like to thank you for your excellent contributions to our effort to
assemble a USG response to the Committee's "List of Issues."
We have integrated the DHS, DOD, and DOJ contributions into the attached draft document along with our suggested
edits to those contributions (indicated in the "tracked changes" format) and additional questions relating to them. Note that
in some places. we moved detailed information (such as statistical data) into annexes.
While this is not a request for final clearance on the document, we are trying to get the document as close to final as
possible and would therefore greatly appreciate your review of the entire document as well as, of course, answers to the
specific questions addressed to your agency.
Please provide your input by COB next Tuesday. March 28.
If you have any questions or comments, please let us know.
Thanks.
Steve

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE ID: 18 AUG 2009 200706444

« File: CAT Reply Interagency March 22.doc »

uNCLASSIFIED
L0629

UNCLASSIFIED
Sleven Hill
U.S. Departmenl of Slale
Office of the Legal Adviser
Human Rights and Refugees
(202) 647-4065 (tel)
(202) 736-7028 (fax)
hillsr@slale.gov

j,

UNCCASSIFIED

L0630

UNCLASSIFIED

RELEASED IN PART
B6
LD28

Schou, Nina E
From:

Nina Schou

Page 1 of2

I

I

B6

Sent:

Thursday, March 23, 2006 3:34 PM

To:

schoune@state.gov

Subject:

Fwd: FW: Drall Consolidated CAT Replies for Interagency Review

Attachments: pat768833926

"Hill, Steven R" <HillSR@;5tate.gov> wrote:
From: "Hill, Steven R" <HillSR
To: Robert Harris F---'==""'""'-'-"''-'-''-'-'---'Nina Schou
cc: '''Steven Hill'"
-------Subject: FW: Draft Consolidated CAT Replies for Interagency Review
Date: Wed, 22 Mar 2006 17:50:32 -0500

1

B6
B6

The beast has gone out to the interagency and around the building as well. Hope you're having fun,
Bob.
From: Hill, Steven R

sent: Wednesday, March 22, 2006 5:52 PM

•

I
.
I
'gor.timofeyev@dhs.gov~ 'Andrew,Steinberg@dhs.gov'; 'Brlan.Kelliherl@dhs.gov'; 'danlel,brown@dhs.goV'i 'molly.groom@dhs.gov';

To:

B6

'nader.baroukh@dhs.gov'; 'roger.sagerman@dhs.gov'; 'ron.rosenberg@dhs.gov', 'Ronald.whitney@dhs.gov';

'Thomas.Monhelm@usdoj.90v'; 'omar.vargas@usdoj,gov'; 'rena.comlsaC@usdoj.gov'; rlaurence.rothenberg@usdoj.gov';
'matthew.friedMch2@usdoj.gov'
Cc: Hams, Robert K; Brancato, Gilda Mj Schou, Nina E;
Bentes, Jullanna W; Grummon, Caroline E.; Haines,
Avrlt D;!
.
pohnson, Thomas A; Lagon, Mark P; Noyes, Julieta V (DRl)
Subject:
Draft Consolidated CAT Replies for Interagency Review

I

I

B6
B6

Dear Interagency CAT Team:
On behalf of Bob Harris and my State colleagues, I'd like to thank you for your excellent contributions to
our effort to assemble a USG response to the Committee's "List of Issues."
We have integrated the DHS, DOD, and DOJ contributions into the attached draft document along with
our suggested edits to those contributions (indicated in the "tracked changes" format) and additional
questions relating to them. Note that in some places, we moved detailed information (such as statistical
data) into annexes.
While this is not a request for final clearance on the document, we are trying to get the document as !
close to final as possible and would therefore greatly appreciate your review of the entire document as
well as, of course, answers to the specific questions addressed to your agency.
please provide your input bY COS next Tuesday, March 2ft.
If you have any questions or comments, please let us know.
Thanks,
Steve
«CAT Reply Interagency March 22.doc»
.**W*••"."••• _***_.. **••••***
Steven Hill
U.S. Department of State
Office of the Legal Adviser
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANKH PEREZ
11/26/2008 DATE/CASE ID: 12 AUG 2009 200706444

-----

UNCLASSIFIED

.--_ . . .

L0631

UNCLASSIFIED .

Page 2 of2

Human Rights and Refugees
(202) 647-4065 (lei)
(202) 736-7028 (fax)
hillsr@state.gov

New Yahoo! Messenger with Voice. Call regular phones from your PC for low, low rates.

11/26/2008

UNCLASSIFIED
L0632

UNCLASSIFIED
Schou, Nina E
From:

Sent:
To:
Cc:

Subject:
Attachments:

I

RELEASED IN
Sleven Hilil
Friday, Apnl 21, 2006 3:59 AM
B6, B5
Bob Harris; Bob Harris
Nina Schou; Nina Schou; Sleven Hill; Julianna Benles; Julianna W Benles
CAT

PART

B6

CAT 4-21 4 AM (clean wilh jbb changes marked).doc; CAT 4-21 4 AM (markup).doc;
dagmemo-1.pdf

CAT +21 4 AM
CAT 4-21 4 AM
dagmemo-l.pdf
(clean with jbb ... (rnarkup).doc (1 ..•
(1,018 KB)

Bob,

The attached documents integrate what I was able to do with John's comments. The most upto-date is the rather unwieldy document with all the tracked changes. The othe~ document
is clean except for the text I added in response to John's comments.

I will work tomorrow -- with Julianna if she's feeling better -- on accepting all changes
in the track changes-filled beast (we had done a quick "accept all" for the clean document
that went to JBB, but this hasty action may have resulted in losing some things that
should actually go in) and then proofing it with a view toward getting something clean
ready for interagency circulation in the afternoon.
As we work on that

I need

our

uidance on how to deal with three of John's comments

B5

You'll also note that I added a request to DOD to provide a breakdown of cause of death
information.
I'll forward this to L/PM as well tomorrow morning.
Steve

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANKH PEREZ
DATE/CASE ID: 12 AUG 2009 200706444

UNCLASSIFIED
L0633

UNCLASSIFIED

.RELEASED IN PART
B6, B5
t.pLf /

Schou', Nina E
Harris, Robert K
Thursday, May 11, 20061:21 PM , Laurence.Rothenber usdo·. ov·

From:
Sent:
To:

--,

u lanna en es;
: u lanna Benles
~=r...J:::.;HRR:RobertHarris/home
Kovar, Jeffrey D
. Camponovo, Christopher N.; Kovar, Jeffrey D(r:!;;;:en"'eo.v""a"';""'a""'on","""·la J;
DOJ:BrenI.Mclntosh@usdoj.gov; Kelliher, Brian; Padmanabhan. Vijay M; Legal-L-HRR

Cc:
Subject:

FW:

Attachments:

LEGAL-#25346-v1-CAT]ollow-Up.DOC

LEGAL-#25346-vlCAT]ollow-Up....

B6.
B61
B6
B6

Larry,

Here are State's suggested edits to the DOJ follo~-up questions. We need to get the final
out of here today around 4. It probably makes sense for you to be the keeper of the pen
at this point and send me what you have heard from DOD by 4. I'll send the text Jeff
Kovar at our Mission. The Committee staff confirmed that they have to receive our
submission by tomorrow morning Geneva time for it to be of use.
Bryan ,and Cully,
We still need to

s~e

the first draft of the DOD Qs and As.

Bob
-----Original Message----From: Padmanabhan, Vijay M
Sent: Thursday, May 11, 2006 1:01 PM
To: Dorosin, Joshua L; Harris, Robert K
Cc:

t

I

I; Schou, Nina 'E; Bentes,' Julianna W

Subject: RE:

B5

-----Original Message----From: Dorosin, Joshua L
Sent: Thursday, May 11, 2006 9:45 AM
To: Padmanabhan, Vijay M
Cc: Schou, Nina E; Bentes, Julianna W; Harris, Robert K
Subject: FW:

Vijay COUld"you review for 1/PM.
review questions.

Thanks.

Bob needs comments ASAP; especially need views on the judicial

Josh

-----Original Message----From: Robert Harris [mailto:/
Sen t: Thursday, May 11, 2006 'S<o:CTo r;2r-zAMrnr------'
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK H PEREZ
DATE/CASE ID: 12 AUG 2009 200706444

B6

1

UNCLASSIFIED
L0634

UNCLASSIFIED
To: harrisrk2@state.gov
cc:J

I ~choune@state.gov;

BentesJW@state.govi dorosinjl@state.gov

SubJect:
I tried to send this message a few minutes ago, but it doesn't appear I was successful.

Attached are follow-up questions to the Committee Against Torture, drafted by DOJ and
edited by Nina. We need to get them back for DOJ to review this morning. Would L!PM be
willing to qUickly look at the Q and A on habeas access for GTMO detainees. Thanks.
Bob

2

UNCLASSIFIED
L0635

UNCLASSIFIED
"

RELEASED IN FULL

Gorove. Katherine M
From:
Sent:
To:
Subject:

Waller, Robert P
Wednesday, March 23, 20058:28 AM
Gorove, Katherine M
Legal-#9547-v3-CAT_drafC11_with_DOD_edits_accepted_and_DOS_qs

Attachments:

Legal-#9547-v3-CAT_drafl_11_with_DOD_edits_accepted_and_DOS_qs.DOC

legal-#9547-v3-CA
T_draft_ll_...

Clear, but please see question in the text regarding number of Amcits killed in the Nairobi and Tanzania attacks. Thanks,
Rob

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

1

UNCLASSIFIED
L0636

UNCLASSIFIED
RELEASED IN FULL
Gorove, Katherine M

LEI5

From:
Sent:
To:
SUbject:

Gorove, Katherine M
Friday, March 18,20054:04 PM
Aswad, Evelyn M (Washington); Brancato, Giida M
FW: CLEAR - Annex to CAT- GTMO, Afghanistan, Iraq

Attachments:

Legal-#9547-v3-CAT_drafC11_with_DOD_edits_accepted_and_DOS_qs.DOC

I sent CAT annex to Bellinger. and left phOne message, but he was on another line. E-mail and annex below.
---Onglnal Message-···From:
Gorove, Katherine M
Sent:
Friday, March 18, 2005 2:42 PM
To:
Bellinger, John B
0;:;
Harris, Robert K; SChou, NIna E
Subject:
ClEAR - Annex to CAT- GTMO, Afghanistan, Iraq

Attached is the draft Annex to the CAT Report to be SUbmitted at the end of the month to the Committee Against
Torture. We would like to request your clearance (or any edits) by noon on Tuesday (March 22), jf possible.
DOD PDGC has cleared the last version. Brad Wiegman input into an earlier version and DOJ working level
cleared an earlier version. I have worked with working level DOD OGC to fill in gaps since those earlier drafts and what is
attached represents the best DOD can provide at this time. I am now sending this version around to all agencies asking
for final clearances by noon on Tuesday also.. I am promising all agencies that if you or Acting NS Kozak or Pierre
Prosper make any further changes that we will re-clear those changes with them. We hope to send an information to Dr.
Rice on Thursday March 24, attaching the final tex! of the Report and this Annex, to inform her that we will submit this text
to the United Nations on March 31 sl.
Thank you very mUCh,
Kate
x68355

Legal-#gS47-v3-CA
T_drafCll_...

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

UNCLASSIFIED
L0637

UNCLASSIFIED
RELEASED IN PART Lelpl
B5, B6

·• Gorove, Katherine M
From:
Sent:
To:
Subject:

Gorove, Katherine M
Thursday, April 21, 2005 3:43 PM
Schou, Nina E; 'Robert Harris'; Harris, Robert K;
RE: LEGAL-#10482-v1-CAT_REPORT_PRESS_GUIDANCE,DOC

'======_-J

B6
I

B5

-----Original Message----From: Schou, Nina E
Sent: Thursday, April 21, 2005 3:32 PM
To: Gorove, Katherine M; 'Robert Harris'; Harris, Robert K;
Subject: RE: LEGAL-#10482-vl-CAT_REPORT_PRESS_GOIDANCE,DOC

136
I

5

-----Origina1 Message----From: Gorove, Katherine M'
Sent: Wednesday, April 20, 2005 12:35 PM
To: 'Robert Harris'; Schou, Nina 'E; 'Harris, Robert K;

'I

Subject: RE: LEGAL-#10482-v1-CAT_REPORT_PRESS_GOIDANCE,Dvvvcc---------------

6

Some further edits.
--~--Origina1 Message-----

I'

From: Robert Harris [mailto[

B6

Sent: Tuesday, April 19, 2061""s...-Fsr':-:;zr<;9r;p"'1"1,------------J

To: SchouNE@state,gov; HarrisRK2@state.gov; GOROVEKM@state,gov;
Subject: RE: LEGAL-#10482-v1-CAT_REPORT_PRESS_GUIDANCE,DOC

I

~--------------

B6

Kate and Nina,

I played around a bit with this. I made some smaller changes in non-track change format,
but put some of the later ones that I wanted you both to see in that format. I would love
to have Kate's eye over the whole thing and tee up one if pressed question that I hope
Kate can easily write. Kate, if you see anything else you think should be in here, please
fe~l free to add it.
Bob
Could i ahplayed
. >From: "Schou, Nina E" <SchouNE@state.gov>
>To: "Harris, Robert Kfl <HarrisRK2@state.gov>,
><GOROVEKM@state, ~ov>,
.
'I

>f
>Sub)ect:

I

"Gorove, Katherine Mil

I

",

LEGAL-i 048£ V1-CAT_REPOSR~T~_~P~R~E~S~S~_~G~O~I~D~A~N~C~E~,~D~OvC----------------~
>Date; Tue, 19·Apr 2005 16:48:30 -0400

136
,

>

>

«LEGAL-#10482-v1-CAT_REPORT_PRESS_GUIDANCE,DOC»

>
>Here are my contributions.

>«

LEGAL-_I0482-v1-CAT_REPORT_PRESS_GUIDANCE,DOC »
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
DATE/CASE ID: 19 AUG 2009 200706444

1

UNCLASSIFIED
L0638

UNCLASSIFIED

i

,/

UNCLASSIFIED
L0639

UNCLASSIFIED
Johnson, Clifton M

Subject:

Propp, Kenneth R
Thursday, May 17, 200711:40AM
Johnson, Clifton M
FW: Spain: CIA Flights Case

Attachments:

(CO) MADRID 173

From:
Sent:

To:

RELEASED IN PART
B5

Clii( -- Re~~on$e irom Madrid (the excellent Ricardo Zuniga): lisbon and Bern still pending.
from:
sent:

aements, Gary A
Thursday, May 17, 2007 10:07 AM

To:

Propp, Kenneth R

Cc:

EUR'WE-Spain-DL; Opstrup, Kevin R .
FW: OA Flights case

Subject:

Ken.

I

---..J

B5

~ tl. efententt,
Senior Country Officer for Spain and Andorra
U.S. Department of State
Ph: 202-647-3151
Fax: 202-647-3459

From: Zuniga, Ricardo X (Madrid)

Sent: Thursday, May 17, 2007 5:32 AM
To: Clements, Gary A
.
Cc: Madrid_POL; EUR-WE-Spain-DL
SUbject: CIA Flights

case

B5

I

UIIUJ i3.l./\..lJ!,i3 ~~~IVIIU'lI'UJ"

STAT!!:

REVIEW AUTHORITY: SHARON E AHMAD
CLASSIFICATION: UNCLASSIFIED
DATE/CASE In: 21 AUG 2009 200706444

1

UNCLASSIFIED

L0640

-------------

----

UNCLASSIFIED
From: Zuniga, Ricardo X (Madrid)

sent: Thursday, February 01, 2007 6:53 PM
To: EUR-WE-Spain-DL
Cc: Madrid_POL; Madrid_Econ; Llorens, Hugo; Shumake, Josie S. (Madrid)
Subject: FW: (CO) SPAIN/OA FUGHTS: JUDGE ORDERS DECLASSIACATION OF INFO RELATED TO FUGHTS

]
NotesTele.b<t (16
KB)

Madrid Daily Report for Friday. February 02, 2007
The latest on the CIA flights
(U) All Spanish media cover today Spanish parliamentary reaction to the CIA flights issue. Fatima
Aburto and Gustavo de AristegUi, PSOE and PP Spokespersons for the Congress' Commission for
Foreign Affairs, said February 1 ttJat their parties support the declassification of the Spanish National
Intellig~nce (eNI) documents if it a) helps to shed some light on what may have happened in Spanish
airports. b) indicates whether human rights or international treaties have been violated in Spanish
territory, and c) clarifies any possible legal r~sponsibilities, all without damaging the fight against
terrorism. Diego Lopez Garrido, PSOE overall spokesman in Congress, said he did not have any
doubts that the GOS will observe the High Court decision, and that the GOS will ask for the
declassification of the documents. The Office of the Secretary of State for Communication said that,
"as of today, the GOS stands by the explanations given by the Minister of Foreign Affairs in Congress
and in the European Parliament." (All Media)
Madrid Daily Report for Monday, February 12. 2007
Spanish media question military flights to Guantanamo .
(U) EL PAIS reported Feburary 12 that the U.S. military used bases in Torrej6n, Mor6n and Rota for
military flights to and from Guantanamo Bay. EL PAIS gained access to Portuguese a;r traffic control
flight records which showed seven direct flights between Guantanamo and U.S. bases in Spain since
2002. EL PAIS cited the bilateral convention prohibiting the transport of "controversial cargo" and
implied that at least some of the flights must have contained controversial cargo (i.e. rendered
indiViduals). The article acknOWledges that there is no way of knowing either way, since U.S. flights
receive blanket clearances at the bases and are not inspected by Spanish authorities. (El PAIS)
(C) COMMENT: Embassy suspects that the United Left (IU) and others will attempt to use this
information to expand the existing judicial inqUiry into alleged CIA rendition flights transiting Spanish
commercial airports. END COMMENT. (EMBASSY)
Madrid Daily Report for Wednesday. February 21. 2007
Congress will not investigate visit of Spanish authorities to Guantanamo
(U) The United Left (IU) party and the Catalan Republican Left (ERC) party registered a request in
Congress on February 20 to create a commission to investigate military flights to and from
Guantanamo Bay which also transited U.S. bases in Spain, as well as to investigate whether
Spanish officials broke any laws by traveling to Guantanamo Bay to interrogate Spanish detain_ees.
PSOE's congressional spokesman said February 20 that PSOE will not support the creat(on of such
a commission. In the case of the flights, Lopez-Garrido noted a judicial investigation is already open.
In the matter of the visit of Spanish authorities to Guantanamo he said, "the Congress cannot spend
its time asking for explanations from the previous government." (El PAIS)
2

UNCLASSIFIED

L0641

-:-

UNCLASSIFIED
Madrid Dailv Report for Wednesday. March 07. 2007
Spanish judge will look into USMii Guantanamo flights
{U) Judge Ismael Moreno announced March 7 that he will formally request from Portuguese
authorities all information pertaining to flights originated in Guantanamo going through the Iberian
Peninsula airspace since 2001. Moreno has also asked the Spanish airport authority AENA for
information on the seven direct flights between Guantanamo and the U.S. military bases of Rota,
Mor6n. and Torrej6n. (EUROPA PRESS)
Madrid Daily Report for Monday, March 12, 2007
Nothina new from GOS disclosure on CIA flights
(U) According to EL PAIS. documents provided by Spanish intelligence to National Court JUdge
Ismael Moreno on alleged CIA rendition flights do not provide any significant new information, and
the documents have been heavily redacted. omitting names of drafters. recipients. and other details.
(EL PAIS)

3

UNCLASSIFIED

L0642

UNCLASSIFIED
.

Conklin, Maegan L
From:
Sent:
To:
Cc:
SUbject:

RELEASED IN FULL

Schulz, Kirsten A
Wednesday, July 25,200711 :16 AM
Mills, Richard M Jr.; Johnson, David T
Bellinger, John B (L Bureau); Roy, Kenneth M; Pease, Leah; Pomper, Stephen; Adams, Kefli;
Poisson, Beth l; Ereli, Adam J; Bishop, Vaughn F; T50u, Leslie M; Bell, Richard K; Tremont,
Pamela M; Bilgesu, Deniz X; Deeks, Ashley S
Intelligence and Security Committee/Renditions.

Rick, David,
(C) The Embassy received the Intelligence and Security Committee report on Rendition today. The report is some seventy
pages in length and includes some ten pages of summary and recommendations. At first, cursory reading, the report
appears to be a history of what the British Intelligence services (MIS, M16) knew about U.S. detainee and rendition policy
and when, as well as a description of HMG's evolving policy toward U.S. detainee and rendition policy since 9/11. Not
having read the report in its entirety, I highlight some of its language:
(Uj The nature of intelligence sharing
Our intelligence-sharing.relationships, particularly with the United States, are critical to providing the breadth and
depth of intelligence coverage reqUired to counter the threat to the UK posed by global terrorism. T,hese
relationships have saved Jives and must continue.••
Implications for the Special Relationship...
What the rendition programme has shown is that in what it refers to as 'the war on terror' the U.S. will take
whatever action it deems necessary, within U.S. law, to protect its national security from those it considers to
pose a serious threat. Although the U.S. may take note of UK protests and concerns, this does not appear
materially to affect Its strategy on rendition.
It is to·the credit of our Agencies that they have now managed to adapt their procedures to work round these
problems and maintain the exchange of intelligence that is so critical.

The UK Agencies
Conclusions and Recommendations
••.The Committee considers that "secret detention," without legal or other representation, is of itself
mistreatment. Where there is a real possibility of "rendition to detention" to a secret facility, even if it would be
for a limited time, then approval must never be given.

Summary of conclusions and recommendations...
Our intelligence-sharing relationships, particularly with the United States, are critical to providing the breadth and
depth of intelligence coverage reqUired to counter the threat to the UK posed by global terrorism. These
relationships have saved lives and must continue.••
In the im'mediate aftermath of the 9/11 attacks, the UK Agencies were authorized to assist U.S. "rendition to
justice" operations in Afghanistan. This involved assistance to the CIA to capture "unlawful combatants" in
Afghanistan .•.

By mid·2003, follOWing the case of Khaled Sheik Mohammed and suspicions that the U.S. authorities were
operating "black sites," the Agencies had appreciated the potential risk of renditions and possible mistreatment
of detainees. From this point the Agencies correctly sought Ministerial approval and assurances from foreign
liaison services whenever there were real risks of rendition operations resulting from their actions•.•
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED

L0643

UNCLASSIFIED
The Committee has strong concerns, however, about a potential operation in early 2005 which, had it gone ahead,
might have resulted in the xxxxx (sic) The operation was conditional approved by Ministers, subject to
.
assurances'on humane treatment and a time limit on detention. These were not obtained and so the operation
was dropped. xxx (sic) .•.
The use of UK airspace and airports by CIA.operated aircraft is not in doubt. There have been many allegations
related to these flights but there have been no allegations, and we have seen no evidence, that suggest that any
of these CIA flights have transferred detainees through UK airspace (other than two "rendition to justice" cases
in 1998 which were approved by the UK Government follOWing U.S. request.)...
We consider that it would be unreasonable ••.to check whether every aircraft transiting UK airspace might have
been, at some point in the past, and without UK knowledge, involved in a possibly unlawful operation. We are
satisfied that, where there Is sufficient evidence of unlawful activity on board an aircraft in UK airspace, be it a
rendition operation of otherwise, this would be investigated by UK authorities...
The alleged use of military airfields in the UK by rendition flights has been investigated in response to our
questions to the Prime Minister. We are satisfied that there is not evidence that U.S. rendition flights have used
UK airspace (except the two cases in 1998 referred to earlier in the report) and that there is no evidence of them
haVing landed at UK military airfields."
There is also language on Guantanamo detainees el-Sanna and el-Rawi, among others.
Regards,
Kirsten

UNCLASSIFIED
L0644

UNCLASSIFIED
Conklin, Maegan L

~~~~~:~~~~~,

From:
Sent:
To:

20073:04 PM

RELEASED IN FULL

Bellinger, John B (L Bureau); Johnson, Clifton M; Propp, Kenneth R
Padmanabhan, Vijay M.
FW: Germany: Bundestag Appoints Special Counsel for CIA renditions

Cc:
Subject:

FYI.
From:

Robinson, John G

Sent:

Monday, July 09, 2007 3:04 PM

To:
Subject:

Deeks, Ashley 5; Padmanabhan, Vijay Mi Sicade, Lynn M (DRL); Hammond, SylVia L (DRL)
Germany: Bundestag Appoints Special Counsel for CIA renditions

Gennany: Bundestag Appoints Special Counsel for CIA renditions
(U) This week the Bundestag's Intelligence fact-finding com~ittee appointed a special counsel to deal solely
with questions of CIA renditions, secret prisons, and CIA secret flights. The counsel, Joachim Jacob, previously
served as the government's data protection commissioner. Jacob's appointment is for six months. (Hugo
.
Guevara, x 7-0345, Embassy Press Summary)
John G. Robinson
EUR/ERA
(202) 647-3913

Classified Confidential by Political Officer John G. Robinson, EURIERA. based on definitions provided in E.O. 12958,
reasons 1.4 (b) and (d). decl.
.
(
.'

!

I

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

tJNCLASSIFIED

L0645

UNCLASSIFIED
OL"1111gre£ili of flJc ltuitcll §tntes.
nt'ul.1l,iugtuH, DC!: 20515

L&lsB

RELEASED IN FULL

July 2. 2007
The Honorable Condoleezza Rice
Secretary of State
22{)J C Street, N.W.
Washington, D.C. 20S20

.1

Dear Madam Secretary:

The House Committee on Foreign Affairs. Subcommittee on International Organizations.
Human Rights, and Oversight. and the House Committee on the Judiciary. Subcommittee on the
Constitution, Civii Rights. und Ci vii Libt:rt;es art: wlloul:ting <.I joint inquirj inlo th.: Unii.::J Stutes');
policies and practices in connection with the extrajudicial transfer of a person from one state (i.e..
country) to another, often referred to as "extraordinary rendition." The United States's involvement
in extraordinary renditions has received world-wide press attention. and has resulted in the attempted
prosecution of United States executive branch personnel in Italy. We therefore seek information
regarding the United States's policy and practice on renditions.]
The purpose of this letter is not to request information or documents relating to any specific
rendition, nor is it to request any information or documents that relate to any opemtional mallers
associated with any rendition. Rather, we are interested in obtaining documents or information as
follows:

1

I)
Please provide any written materials in the nature of policies or guidelines that rclate
to the circumstances where the United States will participate in or conduct an extraordinary
rendition;
2)
Please provide written materials or other,information that describe or Set forth the
approval process within the State Department and any and all other branches of government
(including. but not limited to the intelligence agencies, the Defense Department, the Department or
Justice, the White House. and any other agencies);

3)
Please provide written materials or other information that describe the legal and
factual findings that are lypically made or required to be made prior to any such rendition. and
please provide a sample set of such findings that redact information that would identify the person to
be involuntarily rendered;
4)
Please provide any written materials in the nature of policies or guideline!> that relate
to the steps taken by the Vniied States's to determine what the'country to which the individual is to

I As used in this letter, the term "rendition" means the transfer of a person from one state
to another in the absence of an extradition treaty or other formal legal process and indudes
"extruordinary rendition" or "irregular rendition."

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0646

UNCLASSIFIED
be rendered will do with the individual when rendered, including but not limited to. steps wkcn und
writ/en materials or other information thnt is obtained us to the country's commitments not to engage
in torture (i.e.• "diplomatic assurances"). Please indicate how the communications with the
receiving country urc memorialized and retained. Please also provide information on how the United
States ensures thaI the receiving country abides by its treatment comJIlitmenr and Whllt. if any,
remedy is taken if the United Stutes receives credible information that the receiving country hus
tortured the rendered inoividual or otherwise failed to honor its commitment,,:
5)
Please provide any legal analyses that provide authority for the United Stules's
participation in the extraordinary rendition process;
.

6)
As to each of the above categories, please provide documents or information that
renect whether the policies or practices (inclUding legal policies) have remained constant or have
changed over time~
7)
Please provide documents or information explaining how many limes the United
States'has participate in or conducted a rendition since January 20, 200l; and

8)
Please provide documents or information explaining how many times the United
, States has determined that those rendered were not dangerous terrorists.

We appreciate your prompt attention to this letter, and would request a response no later than .
Monday. July 16.2007. IF you have any questions. please contact Natalie Coburn. Counsel to the
Subcommiuee on International Organizations, Human Rights and Oversight at (202) 226-6434. or
Heather Sawyer, Counsel 10 the Subcommittee on the Constitution.'Civii Rights. and Civil Liherties.
at (202) 225-2585

Sincerely.

WiLLIAM D. DELAHUNT
Chairman
Subcommittee on
Inlemaliona} Organizations.
Human Rights and Oversight
Committee on Foreign Affairs

JERROLD NADLER
Chairman.
Subcommittee on .
rhe Constitution.
Civil Rights, and Civil Liberties'
Committee on the Judiciary

fJnflL
RON PAUL
Member of Congress .

Member of Congress

UNCLASSIFIED
L0647

UNCLASSIFIED
Conklin, Maegan L
From:

Sent:
To:
Cc:
Subject:

Buchwald, Todd F (l~UNA)
FrIday, December 02, 2005 5:16 PM
Bellinger, John B (L Bureau)
Harris, Robert K; Witten, Samuel M; Dorosin, Joshua L
- Are there black sites

RELEASED IN FULL

Attachments:

LEGAL-#124221-vl

-sec_Q's_A's_...

. This has the change that Bob just discussed with you (Euro Commission vice Euro Court) for the Carlos the Jackal case he's walking it up in hard copy,

.~

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED

L0648

UNCLASSIFIED

Page 1 of 1

Conklin, Maegan L
From:

Graffy, Colleen P

Sent·:

Wednesday, November 23, 2005 3:59 PM

To:

Bellinger, John B (L Bureau); Hughes, Karen ,P(R)

SUbject:

~ssessments

RELEASED IN FULL

from Posts

Attached are assessments by posts on the media coverage that renditions, black sites and
Guantanamo are getting in their respective country and its affect on pUblic diplomacy.
This includes Armenia, Austria, Cyprus, Finland, Iceland, Lithuania, Luxembourg, NATO, Slovenia,
Spain, Sweden, Turkey and United Kingdom & Netherlands.
On the unclass side is Bosnia and Denmark

Colleen

UNITED STATES ·DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

3/27/2009

UNCLASSIFIED

L0649

UNCLASSIFIED

'RELEASE~iF~f

Susan M.sall

paris7785.txt
From DB/lnbox:

11/16/2005 03:54:32 PM

'.4
.

susan M Ball

Cable
Text:
UNCLASSIFIED
TELEGRAM

November 16, 2005

TO:

SECSTATE WASHDC - IMMEDIATE

Act; on:

EUR.

From:

AMEMBASSY PARIS (PARIS 7785 - IMMEDIATE)

TAGS:

PINR, PINS, PREL, FR

-captions: None
subject:

ACTION REQUEST: GUIDANCE ON RESPONSE TO COE
INVESTIGATION

Ref:

None

1.

(u)

This is an action request.

See para 3.

2.
(U) Amb. Stapleton received by fax a letter (full text
para 4) from Dick Marty, whom the Council of Europe
Parliamentary Assembly has appointed to investigate the
allegations of CIA secret detention centers in CoE member
countries. The key phrase reads, "I would very much
appreciate receiving from your authorities any pertinent
information they may be able to provide me with on this
subject."

3. (U) ACTION REQUEST: Please provide authorized language
for use by Ambassador and Strasbourg consulate in response to
COE requests.
4. (U) Text of Marty letter:

parliamentary Assembly
The Council of Europe
committee on Legal Affairs and Human Rights
The chairperson
14 November 2005

Dear Mr.

Rober~s

Stapleton,

I address this letter to you in your capacity as Permanent
Observer of the United States of America to the Council of
Europe.

As you are no doubt aware, I have recently been instructed by
the parliamentary Assembly,s Committee on Legal Affairs and
Human Rights to collect information ort &alleged secret
detention centres in council of Europe member states8 as a
result of communications received on this subject from a
number of sources, especially Human Rights watch.
Pag~

UNITED STATES DEPARTMENT OF STATE
REVmW AUTHORITY: ARCHm M BOLSTER
DA1'E/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED L0650

UNCLASSIFIED
paris7785.txt
With this in mind. and in particular the existence of serious
allegations concerning your country,s involvement in such
activities in council of Europe member states as of 2001, I
would very much appreciate receiving from your authorities
any pertinent information they may be able to provide me with
on this subject.
.
I look forward to receiving a reply to my request at your
earliest convenience and thank. you for your cooperation.

Yours sincerely,
Dick Marty
END LETTER TEXT

Please visit Paris' classified website at:
http://www.state.sgov.gov/p/eur/paris/index.cfm
Hofmann .

Additional Addressees:
None

cc:

AMCONSUL STRASBOURG
EUROPEAN POLITICAL COLLECTIVE

Distribution:
TED9534
ACTION EUR-OO
INFO

LOG-OO
VCI-OO
ISN-OO
. SP-OO
DRL-OO

NP~OO

TEDE-OO
NSCE-OO
SS-OO
G-OO

o 161231z NOV 05

ACQ-OO
INR-OO
OMS-OO
TRSE-OO
SAS-OO

CIAE-OO
10-00
PA-OO
T-OO
/OOOW

DODE-OO
L-OO
PM-QO
lIP-DO

Os-OO
VCIE-OO
PRS-OO
PMB-OO

UTED-OO
NSAE-OO
P-OO
DSCC-OO

------------------5EFB8c 161334Z /80

FM AMEMBASSY PARIS
TO SECSTATE WASHDC IMMEDIATE 1456
INFO EUROPEAN POLITICAL COLLECTIVE PRIORITY
AMCONSUL STRASBOURG PRIORITY
UNCLAS PARIS 007785
E.O. 12958: N/A
TAGS: PREL, PINR, PINS, FR
SUBJECT: ACTION REQUEST: GUIDANCE ON RESPONSE TO COE
INVESTIGATION

page 2

UNCLASSIFIED
L0651

UNCLASSIFIED
pari 57785. txt

End cable Text
Susan M Ball

11/16/2005 03:54:32 PM

From OS/Inbox:

Susan M Ball

Recipient/profile Information
cable Recipients:
Steve Adams-Smith
Joanne E Addison
Michael J Adler
Damola A Akeredolu
worth sAnderson
Jorgan K Andrews
Richard H Appleton
Katherine Arcieri
Michelle E Azevedo
Alejandro H Baez
susan M Ball
stephen B BC\nks
Rene l Bebeau
John P Becker
Lisa J Benthien
Mark A Betka
Joshua Black
sharon Bowman
Scott A Brandon
Jamar P Broussard
Tiffani Brown
Mia Buck
Jody L Buckneberg
Mary J Bushnaq
Andrea cameron
Martha L campbell
Raphael carland
Amy C Carlon
Amy A Carnie
Lauren W Catipon
Angela M cervetti
Tania chomiak-salvi .
Gary A clements
Marci a E col e
Ronald collins
John Conlon
celeste A Connors
Nerissa J Cook
Anti crime
John R Crosby
Shawn P crowley
Thomas R cunnin~ham
Jennifer M Darrlngton
Margaret M Dean
Lillian G devalcourt-Ayala
Annick P Ducher
David A Eastmond
Joao M Ecsodi
colleen s Eddy
Jennifer A Eldrid~e
christopher A Ell1S
John F' Erath
EUR Sp Asst
Mark R Evans
Robert J Faucher
Michael A Feldman

Page 3

UNCLASSIFIED
L0652

UNCLASSIFIED

John J Fennerty
Terrance R Flynn
. Daniel Hi ed
Martin C Gage
Michael F Gallagher
Gre~ory G Garramone
Juhette Gar-vis
linda A Gayles
stephen MGeis
Theresa A Grencik
Danny Hall
Morgan C Hall
Joshua Hatcher
Margaret Hawley-Young
Kathryn A Hayter
John Hennessey-niland
Priscilla G Hernandez
John J Hi1lmeyer
Marcus A Hirsch
Marjorie T Hoefler
Greta C Holtz
Arnold Horowitz
Todd M Huizinga
cornelia L Johnson
Klm Johnson
seth A Johnston
Donald l Jordan
Stephanie 5 Kinney
Heather X Kitchens
Eric !II Kneedler
Mary Koenig
David J Kostelancik
Adam D Lamoreaux
John F Larrea
Jacqueline A Lawrence
Thomas M Leary
Frank J Ledahawsky .
Thomas E Lersten
Aaron H Levy-Forsythe
J D lippeatt
Debra La
Mar; a A Long;
Andrew R Lorenz
John 0 Maher
Joseph Mangaryiel10
Carolann Manno
Gregory l Mattson
James Miervaldis
Stephanie A Miley
Katherine L Mitchell
Matthias J Mitman
Pamela P Montgomery
Joann Moore
Connie A Morella
Alessandro P Nardi
Alain G Norman
Mary MO'Keefe
Thomas A o'Keeffe
Tabitha Roman
Howard Perlow
peg!ilY L plunkett
Oenlse M pontacoloni
pamela M powell

pari s7785. txt

\

page 4

UNCLASSIFIED
L0653

UNCLASSIFIED

Kathleen A powers
Richard L prosen
Jay Raman
steQhanie A Raney·
Jeffrey D Rathke
Lonni H Reasor
Helen G Rednos
Christen C Rhodes
Lawrence G Richter
Gerd Rickert
Maiesha S Riley
John G Robinson
Ana M Rodriguez
Kenneth MRoy
Adele Ruppe
Franc;so, 0 Sainz
Gary E Schaefer
James F schumaker
Jeffrey R Sexton
Eugenia Msidereas
Marsha L sin!]er
stephen T Smlth
Anthony spakauskas
Lonni H sp; ege1
Jeffrey R Starnes
Daphne Z stavropoulos
Ronald stephens
Adam H Sterling
Alexandra M sundquist
David J Tessler
Tracey R Thornton
John C Tucker
subrena R Tumblin
Robert H Tuttle
viana N viggiano
Kurt 0 Voker
Jacqueline V Voorhees
Ann L Wagner
Ivan S weinstein'
Matthew s we11 s
Arkell Dweygandt
caitlin white
Kami A witmer
Nelson wukitsch
Thomas A Yeager
Alan K Yu
Diane R zeleny
Jane B Zimmerman

Par;s7785.txt

LMOS profiles/office symbols:

EUR...AGS...Al

EUR....AGSJ,13
EUR.,.AGS....A3
EUR....BI-.A2

EUR....BI....A3
EUR....CAN....A6
EUR....EEA....A7
EUR....EEA....A8
EUR....ERA....A2
EUR....ERA-.A6
EUR....FO..A2
EUR....FO....A3
EUR-FO....A4
EUR....NAR....Al
ElJR_NB-A4

Page 5

UNCLASSIFIED
L0654

UNCLASSIFIED
Pari 57785. txt

EUILPPA....A3
EUR_PPA..-A4
EU/LRPM..-A3
EU/LRPM..-A4
EU/LRPM..-A7
EUILUSIS..-Al
EUR_WE..-AIO
EUILWE..-A7

Bushnaq_l
byrneskl
cappsr
crouchgd_l

cablexpress Folders:
bakasmal

DOFOI #4

ellisl
kilnerSl
murrayjcl
sas4

arnettdll
Beckerl
DOFOI #1
eatmonfpl
ERA2

hardtdb3
hawthorm3
murraycw2
murraycw6

parkerfs~2

secorpf3
siskovicje_l
slet'tenj_l
sundquistal
doetsmp2
ecsodijm_l
HallD_l
hi11 <:-4
rickertg_l
trostlj3
hennnessey_nilandJ_l
brandonSA-l
chomiak-salviT
CupicSl
danielskl
daviscrl
deanmm_l
ettern_l
EUR_POSTS

fennertj_l
gallagmf
haddCLl
hiltonrb_l
hOfowitzAl
johnsontcl
karagiaAl
kostedj3
longmyer3
Mcdonaldcl

MOZUR-GENERAL

parent_l
PGI-l
powellpml
profaizal
ROOD!

page 6

UNCLASSIFIED
L0655

UNCLASSIFIED

saarnios_1
shinagele_l
slottag
Smithcml
sullivah_l

paris7785.txt

TC

turnbulld
wukitschnl
fabryckyl
snis3
AzevedoM
conlonl
eddyc_l
EXHEADS1

gageml
kramers1
mann;ngj12
mcgahuabl
POWERSK-2

princed_l
prosenrl
schultze_l
snecl
tribbleCl
volkerkdl
ERA1

murraycwl
carn;eAA.-l
crouchgd_2
gagem2
goldsteinj2
recinosh_3

TEKACH_5

akeredda
hornblmml

page 7

UNCLASSIFIED
L0656

UNCLASSIFIED

WCB4·

RELEASED IN FULL
November 15,2005
SENSITIVE BUT UNCLASSIFIED
NOTE FOR THE SECRETARY
FROM:

John B. Bellinger

SUBJECT:

European Response to Reports of CIA Secret Detention Sites in Europe

Press reports about alleged secret CIA detention sites in Eastern Europe have led
the Council ofEurope to open an investigation into the existence of such sites, resulting
in an official request for information. Further, following press reports of suspect air
flights in the region, several European countries (including Germany, Denmark, the UK,
Italy, and Iceland) have queried us about possible renditions that might have occurred
through their airspace. Recent press reports have also drawn international attention to
Spain's ongoing investigation of allegations that the CIA has used facilities on Majorca
in connection with prisoner transfers. Finally, the European Union has indicated that it
will monitor the outcome of the various investigations underway for evidence that EU
member states may have acted in contravention of their EU·obligations.
On November 8, the Legal Affairs Committee of the Council of Europe (CoE)
Parliamentary Assembly (PACE) appointed its Chairperson, Dick Marty (Switzerland),
as rapporteur to examine the subject of alleged secret CIA detention centers, with a view
to a possible urgent debate at the next Standing Committee's meeting in Bucharest on
November 25. The Committee authorized visits to member States as needed, and Marty
has requested that our Ambassador in Paris, in his capacity as U.S. Observer to the CoE,
provide information regarding the allegations. In earlier resolutions, the Parliamentary
Assembly called upon member States to "ensure that their territory and faciliti.es are not
used in connection with practices of secret detention or rendition in possible violation of
international human rights law." On November 3 EU Commission spokesperson Roscam
Abbing announced that the Commission would not investigate the allegations, suggesting
that the task fell to the EU's member states. Yesterday, Commission Vice President
Frattini asserted in a statement before the EU Parliament that the conduct described in
press reports would constitute a "serious violation of the principles of the European
Union" by the member states concerned. Finally, the JCRC remains concerned about all
detainees whom it believes the USG has kept from ICRC access.
Romanian President Basescu, Prime Minister Tariceanu, and other Romanian
officials have advised that they have no evidence of "secret prisons" alleged by Human
Rights Watch. The outgoing Polish Defense and Foreign Ministers categorically denied
the Washington Post's allegations, as did the President, and leaders of the incoming
government expressed disbelief the story could be true. In Spain, Interior Minister
Alonso remarked on television that it would be "very serious and intolerable" ifthe CIA
in fact used Spanish airports to take prisoners to unknown destinations, but asked for
"caution" as the investigation continues.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0657

UNCLASSIFIED

Drafted: L/HRR - Gilda Brancato x 72773 1119/05, updated 11115105
Cleared: DRL/MLA - Julieta'Noyes - ok
EUR - Kurt Volker - ok
LIPM - Josh Dorosin - ok
LIHRR - Robert Harris - ok
LIEUR - Peter Olson& Damon Terrill- ok
PRMlMCE - Carol Santos - ok
EURINCE -Janet Garvey - ok
EU.R1NB - Vicky Middleton - ok
EURIERA - Rob Faucher - ok
G - Joseph Bracken.- ok
EURIWE - Italy I Spain - Kathy Allegrone - ok

cc:

124032

\

USGeneva - Jeffrey Kovar
L - Ronald Bettauer, Samuel Witten
LILEI - Kenneth Propp
10- Mark Lagon
IO/SHA - Bill Lucas

UNCLASSIFIED
L0658

UNCLASSIFIED
UNCLASSIFIED

I-QdEA·

RELEASED IN FULL

Q. Europeans say extraordinary renditions'viol~teinternational Jaw, you say they're
legal. Who is right?
-- Properly conducted renditions are pennissible under international law, and European
tribunals have upheld them in specific cases.
. - I am told for example that the European Commission ofHuman Rights specifically
rejected Carlos the Jackal's claim that his rendition from Sudan violated international
law.
-- That is not to say that renditions can never be conducted in a way that would violate
international law, such as if torture were involved, either as part ofthe rendition or if a
person were rendered to a place knowing that he'would be tortured or even that it is likely
that he will be tortured.
/
-- But I want to be clear:

/

-- We take the prohibitions against torture, under both intemationallaw and
domestic law, very seriously.
-- We do not authorize or condone torture.
-- Where there have been cases of unlawful treatment of detainees, such as in
. connection with Abu Ghraib, we have investigated and where appropriate we
prosecute and punish those responsible.

Q. Are you saying you have rendered people from Europe or through European
territory?
-- Again, I cannot and will not comment on intelligence activities, but I can say we have
worked and will contihue to work cooperatively with our friends and partners in Europe
and elsewhere.
-- That said, I can say that a large number of the allegations I have seen in th~ European
media are flatly Mong.

Q. Where are they being rendered to? And who are they?
-- I am not in a position to discuss intelligence information that would compromise our
intelligence, law enforcement and military operations.
-- In general, these detainees are extremely dangerous terrorists who are being transferred
to countries of which they are nationals or sometimes to countries that are able to detain
them or prosecute them.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASEID: 22 JUN 2009 200706444

UNCLASSIFIED

UNCLASSIFIED
L0659

UNCLASSIFIED
UNCLASSIFIED

Q. Are fhere black sites?
-- I want to be as forthcoming as possible but for reasons I hope you understand I am not
going to conftrm or deny intelligence activities.
-- As I have said, our publics - rightfully --;- hold us responsible for protecting our
countries and our citizens.
-,
'
-- I am just not in a position to discuss intelligence information that would compromise
our intelligence, law enforcement and military operations.

Q. Do you think waterboarding is torture? If not, bow can you say it is not cruel,
inhumane, or degrading?

-- r want to avoid commenting on allegations about the legalities and details of speciftc ,
practices.
,-- As I've said, it is our policy to comply with all of our international obligations in our
treatment of detainees: authorized interrogation procedures will not constitute torture or
cruel, inhuman, or degrading treatment, as deftned by U.S. obligations under the
Convention Against Torture.
-- Our interrogation procedures are given careful legal review by the Department of
Justice for compliance with the law.

Q. When you ask countries to cooperate in these renditions, aren't you effectively
asking'them to break their own laws? Isn't this fundamentaJIy inconsistent with the
idea that the United States promotes the rule of law?
-- The premise that renditions are illegal is wrong. Renditions are not automatically legal
or automatically illegal - it depends on how they are carried out.
-- Cooperation in these rendition efforts is voluntary. Democratic governments have
obligation~ to protect their citizens and their countries from the threats posed by
terrorists. These governments must decide whether they want to work with us and how
the want to work with us.
-- Democratic governments of course are responsible for complying with their own laws.
In some cases we and other countries are finding that we need to change or adapt our
laws to deal with the threat.
-- But we are certainly not asking anyone to abandon the rule oflaw.

~IED
L0660

UNCLASSIFIED
UNCLASSIFIED

Q. Isn't the United States violating the human rights of these individuals? These are
enforced disappearances, aren't they? Isn't it correct that international treaties
ratified by the U.S. prohibit incommunicado detention of persons in secret locations
as well?
-- Members of a1 Qaeda and its affiliates are unlawful combatants who may be held in
accordance with the law of war. And that is what we are doing.

Q. Could the US cooperate in one of these renditions from
another country requested?

th~

United States if

-- There are a variety of ways that a person might be "rendered» under US law outside of
a traditional extradition procedure. We can cooperate, but it of course depends on what is
being requested.
-- So the question is not simply whether the United States could or could not cooperate in
a rendition request. There are many, many different kinds of situations, and yes - we
would in an appropriate situation cooperate as best we could.

Q. What about the reports that CIA has rendered the wrong people, such as al-

Masri from Germany?
-- I am not going to comment on particular allegations.
-- Our military and intelligence agencies make every effort to ensure that any individual
who is detained is a member of al-Qaeda or its affiliates and poses a threat to the United
States or its allies.
-- If an indiyidual is detained in error, we take. corrective action.
-- But simply because errors are sometimes made does not mean that detention activities
should be stopped.

Q. Why are you opposing the McCain amendment?

!

-- The issues involved in the McCain Amendment are more complicated than might first
seem, including issues related to separation of powers, about which there have long been
differences of views between the Executive and Legislative branches.
-- Under the Constitution and our system of government, the President has
responsibilities as Commander-in-Chief.

~IED
L0661

UNCLASSIFIED
UNCLASSIFIED.
~-

Because of this, there are questions about the extent to which it is appropriate or wise
for Congress to make laws about how the President should be required to conductor not
conduct interrogations, or otherwise carry out his responsibilities under the Constitution
as Commander-in-Chief.
-- That said, we understand the concerns that some in Congress have expressed.
-- And we are working closely with the Congress to try to reach a satisfactory resolution
of this issue.

L0662

UNCLASSIFIED
Conklin, Maegan L
From:
Sent:
To:
Subject:

Jo~n

Terrill, Damon A
RE'LEASED
Thursday, December 15. 2005 12:21 PM
Bellinger, John B (l Bureau)
FW: Amnesty says CIA detainee flights used UK territory

IN FULL

-

This looks like it may have made it to everyone .but you, so just passing it along.
Best,
Damon (7-1270)
_·--Original Message-'"
From:
Williams, Veronica X
Sent:
Thursday, December 15, 2005 12:19 PM
To:
Legal-All-Deputies-dl; legal·AlI-AlAs-dl; Legal-L-EUR-dl; Legal-L-PM-dl
SUbject:
FW: Amnesty says aA detainee ftlghts used UK territory

--Original Message--From:
Shvelz, Brendon
,
Sent:
Thursday, December 15, 2005 11;49 AM
To:
lW-EUR; LW-Mahogany; SES-o_Shift·II; LW-L
Subject:
Amnesty says aA detainee flights used UK territory

IIBC-SECURITY-BRITAIN-RENDITION
IIAmnesty says CIA detainee flights used UK territory
LONDON, Dec 15 (Reuters) • Amnesty International said on Thursday Britain had allowed the CIA to operate flights on
its territory to transport terrorism detainees illegally and demanded that the governm~nt launch an investigation.
"The UK has allowed these aircraft to land. refuel and take off from their territory," the human rights group's regional
director Claudio Cordone said in a statement.
"The UK government·must launch an immediate, thorough and independent investigation into mounting evidence that
its territory has been used to assist in unlawfully transporting detainees to countries where they may face "disappearance",
torture or other ill-treatment," he added.
The British government said on Monday it had no evidence that the current U.S. administration has been transporting
terrorism suspects through British airports.
Cordone said: "Whether the U.S. is sending people to other countries to be tortured, or snatching them in other
countries to be abused in Guantanamo, international law prohibits the UK, or any other state, from aiding or abetting
them."
.
.
Human rights groups accuse the CIA of running secret prisons in eastern Europe and covertly transporting detainees -a practice known as "extraordinary rendition", They say incommunicado detention often leads to torture.
. The Amnesty statement named several men it said had been abducted by the CIA and flown to Jordan and Egypt as
part of the U.S. campaign of "extraordinary rendition".
In each case a Gulfstream V. registration N379P, had stopped to refuel at Prestwick airport in Scotland on its way back
to the United States after dropping off its passengers, it said.
.
It cited the case of Jamil Qasim Saeed Mohammed who it said was seen being bundled aboard the CIA plane by
masked men in Karachi on Oct 23, 2001. The plane then flew to Jordan and the following day, now without its passenger,
it flew to Prestwick .and then on to Dulles International airport near Washington.
It demanded that the United States reveal Mohammed's whereabouts.
Amnesty said that on Jan. 12,2002, Indonesian security officials saw Muhammad Saad Iqbal Madni being put on the
plane in Jakarta and flown to Cairo. Once again the plane stopped in Prestwick to refuel after depositing its passenger.
It said Iqbal Madni had since been returned to U.S. jurisdiction and was now a detainee in Guantanamo Bay where
fellow detainees had said he was on the verge of a breakdown.
Amnesty cited a third case where a Swedish investigation has a/ready revealed that U.S. security officials took Ahmed
Agiza and Mohammed al-Zari from Sweden to Cairo for torture.
.
In total, Gulfstream N379P had been logged between 2001 and 2005 making at least 78 stopovers at British airports
while en route to or from destinations such as Baku, Dubai, Cyprus, Karachi, Qatar, Riyadh, Tashkent, and Warsaw,
Amnesty said.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
UNCLASSIFIED
DATE/CASE ID: 22 JlJN 2009 200706444

L0663

UNCLASSIFIED

Page 1 of 1

Conklin, Maegan L
From:

Fried, Daniel

Sent:

Thursday, December 22,20059:41 AM

To:

Bellinger, John B (L Bureau)

Subject:

FW: Blair on renditions

RELEASED IN FULL

Attachments: image001.jpg; image002.jpg .

From: Sterling; Adam H
Sent: Thursday, December 22,20057:59 AM
To: Fried, Daniel
Subject: Blair on renditions

(U) Blair's Final 2005 Press Conference: It has been a tough yearfor the Prime Minister, out in his monthly press conference on
December 21. a confident Tony Blair said he was sure he is "doing
the right thing" even though he knows he is "battling on all fronts"
to save his public refonn program. Blair also brushed aside
suggestions he would hand over power to Gordon Brown and. when
asked whether he would investigate allegations of UK airports being used for "extraordinary
rendition." he said "Investigate what? I have absolutely no evidence to suggest anything
illegal has been happening."

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCmE M BOLSTER
DATE/CASE ill: 22 JUN 2009 200706444

UNCLASSIFIED .
3/27/2009

L0664

UNCLASSIFIED

Page 1 of 1

Conklin, Maegan l
From:

Fried, Daniel

Sent:

Thursday, January 19,200612:00 PM

To:

Bellinger, John B (L Bureau)

RELEASED IN FULL

SUbject: FW: EP resolution on secret prisons

From: Sterling, Adam H
sent: Thursday, January 19t 2006 10:07 AM
To: Sterling t Adam H; Fried, Daniel; Graffy, Colleen P; Pekala, Mark A
SUbject: RE: EP resolution on secret prisons
'
More from the EP:
(U) European Parliament to set up temporary committee on CIA activities in Europe
The European Parliament voted on January 18, by a large majority, to set up a temporary committee to
investigate allegations of the transport and iflegal detention of,prisoners by the CIA In European countries. The Jist
of 46 committee members will be approved on January 19. The temporary committee will have limited powers of
investigation and cannot force anyone to appear or testify. It will run for a maximum of twelve months, unless the
EP agrees to extend it. The mandate calls for the committee to collect and'analyze information to find out
whether the CIA has carried out abductions, detentions at secret sites, torture, inhumane or degrading treatment
of prisoners in EU or candidate countries; whether such actions could be considered a violation of EU or
international law, including EU-US agreements on extradition; whether European citizens have been detained;
and whether EU Member States or institutions have been involved. The committee would cooperate closely with
the Council of Europe and provide an interim report within four months after commencement. According to an EP
staffer, the committee is expected to hold its first meeting the weel< of January 23 when appointments of
president, vice-presidents and report drafter are expected.
-

From: sterling, Adam H

sent: Thursday, January 19, 2006 10:06 AM
To: Fried, Daniel; Graffy, Colleen P; Pekala, Mark A
Subject: EP resolution on secret prisons

From USEU:
(U) EP calfs on the U.S. to close "secret prisons" in Afghanistan and Guantanamo
The European Parliament adopted on January 18 a resolution on Afghanistan which "c~lIs on the U.S. to close
any secret 'dark' prison in the country." MEPs also "condemn the transfer of hundreds of men captured by U.S.
troops... to [the} illegal Guantanamo detention center, where torture and other ill-treatment by U,S. personnel
have. according to numerous testimonies, been commonplace occurrences, and calls for its immediate closure."
MEPs also welcomed the success of the recent Afghan elections as "an. extraordinary accomplishment," called for
greater visibility of EU funding in the region and for the I:.JN to streamline coordination among donors, MEPs
urged the Council and Commission to develop a policy ·for stability and democracy in the region and to stUdy the
adVisability of concluding an EU-Afghanistan Association Agreement

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCffiE M'BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
3/27/2009

L0665

UNCLASSIFIED
RELEASED IN FULL

Greene. Richard L (PRM)
Friday, November 04,20056:10 PM
McCormack, Sean I{PA FRONT); Bellinger, John B (L Bureau)(L-FO)
FW: 11-04-05 Daily Press Briefing and final guidances + JCRC guidance
Attachments:

dpb # 189 November 4.doc;·110405 JCRC - CIA prison.doc; 11-04-05 Final Guidances.doc

Sean -- from our perspective (and I recognize that there are many perspectives on this issue) well dona and thanks
_····Origlnal Message--···
From:
Eisenhauer, Peter A
sent:
Friday, November 04, 20054:46 PM
To:
PRM/DAS; PRM/Directors and Deputies; PRM/MCE
.
Subject:
11-04-05 Dally Press BrIefing and final gUi,dances + 1CRC guidance

Excerpt from dpb below is ra: ICRC queries. Final guidances did not include the cleared guidance on this topic. which I
have also attached here.

dpb # 189
110405 1CRC - CIA 11-04-05 Final
4.doc {89 I< prison.doc {...
Guidances.doc (...

Ivem~r

QUESTION: Have you received requests from the ED for cooperation into the reported secret prisons in
Europe?
MR. MCCORMACK: I have checked on that, George, and we have not, at this point, received any requests
from the EU concerning those news reports. My understanding from reading the news reports is that the EU is
actually make requests of member states or potential member states~ states with which they are having accession
talks. So at this point, we have not received any inquiries from the ED on those news stories.

QUESTION: A follow-up on that?
MR. MCCORMACK: Jonathan, yeah.
QUESTION: Does the International Red Cross have ,access to all U.s. prisoners?
MR. MCCORMACK: This is a topic that came up yesterday and we -QUESTION: Okay. Apologies.
MR. MCCORMACK: We talked a bit about it yesterday. We have an ongoing dialogue with the ICRC on a
number of -- across a number of different issues. And that dialogue and the contents of that dialogue, by
tradition, has been confidential and that has served the aims and work of the ICRC, so I have to respect the
diplomatic confidentiality,
There have been news reports and the [CRC has commented in public that it has requested access to all
detainees worldwide. And again, we have a dialogue with the ICRC on a number of different issues and we try
to engage them as best we c a n . '
'
.
I would note that the Department of Defense has -- the JCRC has access to all Department of Defense facilities
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CA$E ID: 22 JUN 2009 200706444

1

UNCLASSIFIED
L0666

UNCLASSIFIED
where detainees are held, whether that's in Iraq or Afghanistan or Guantanomo Bay. We've talked a lot about
that over the past couple of days.

If there are any future inquiries from the JCRC on these news accounts, I would expect that we would receive
those inquiries and continue our dialogue with the JCRC on the broader issue of detainees.
QUESTION: I think that's a confusing answer though, Sean. You said they. have access to DOD facilities in
Iraq, Guantanomo and Afghanistan and if they made requests, you would, I guess consider them in the future,.
you said. But they have made requests that, if you have other locations, they want to visit these detainees.
MR. MCCORMACK: As I said, you know, I have to separate out these two things. We do have an ongoing
dialogue with the ICRC. We have -- on any given day, we probably have a meeting with the JCRC on a topic of
mutual interest, whether it's detainees or other issues. As J said before, those -- that dialogue is a confidential
dialogue. It's a confidential diplomatic exchange. I'm not at liberty to discuss ~e contents of those dialogues.
And as I said, I have seen JCRC statements, public statements in the past, concerning requests 'to see all
detainees. I can only say that we have an ongoing dialogue with the JCRC on questions related to detainees.
And J did point out that the JCRC has access to all detainees held by the Department of Defense in those
locations where they may be held, whether it's Iraq, Afghanistan or Guantanomo Bay.
QUESTION: I guess my question is have you not received, through your private channels then, a request from
the ICRC? Is the only request you know about the one that you've read publicly in news reports?
MR. MCCORMACK: Like I said, we have -- you know, we have meetings every single day or on any given
day we may have a meeting with the JCRC if -- you know, based on their public statements, which again, I have
read recently. They said they would renew their request to see all detainees based on the recent news reports
that have been out in The Washington Post and the.Financial Times and in other news organizations. And J
fully expect that, based on their public statements, that they would renew that request.
QUESTION: So they haven't-MR. MCCORMACK: And as I said, we have meetings -- we have meetings -QUESTION: You're just being repetitive. Have they or have they not made the request?
MR. MCCORMACK: Again, we have -- you know, we meet with the ICRC. I will try to keep you updated as
best I can if, in fact, they have renewed that request. There are bounds in which -- by which I am constrained in
terms of the, confidentiality of the JCRe dialogue. I will do my best to keep you updated on any requests that
they have made.
QUESTION: Without addressing tbe question of requests they have made, the original question -- well, not the
original, but the first follow-up -- was does it have access to all detainees worldwide, not necessarily limited to
DOD detainees?
MR. MCCORJ.'\1ACK: Right. And as I said, we do have -- we have a dialogue with them on that issue.
QUESTION: It doesn't go to dialogue. It goes to do they have access

to.

MR. MCCORMACK: As J said, they -- and we've talked about this over the past couple of days. They have
access to Department of Defense detainees at facilities where those detainees are held, whether that's
Guantanamo Bay, Afghanistan or Iraq.

uNCLASSIFIED
L0667

UNCLASSIFIED

,
Conklin,

Maega~ l

'~Q89
RELEASED IN FULL

SUbject:

Terrill, Damon A
Tuesday, November 29. 2005 11 :25 AM
.
Bellinger. John B (l Bureau); Allegrone, Kathleen H; Faucher. Robert J; Olson, Peter M;
Sagar, Andrew E(SIWCI); Hartley, Brent R(S/CT)
Witten, Samuel M; Dorosin. Joshua l
l Press Guidance - EU Inquiry Re: Alleged "Secret Prisons"

Importance:

High

Attachments:

112905LPressGuidance.doc

From:

Sent:
To:

Cc:

Please see the attached press guidance in response to the below tasking. Your clearance as soon as possible will be
most appreciated.
L f EUR f INR I REGION: When do we expect an answer to the EU regarding the secret prisons?

Many thanks.
Damon (7-1270)

112905LPressGuida
nee.doc (28 K...

Damon A. Terrill
Attorney Adviser & Press Officer
United States Department of State
Office of the legal Adviser'
European & Eurasian Affairs (UEUR)
2201 C Street NW
Washington, DC 20520
(202) 647-1270

·1

I

i

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED
L0668

UNCLASSIFIED

LQ!J7-A·

RELEASED IN FULL
L Press Guidance
November 29,2005

Alleged CIA "Secret Prisons" in Europe
Question:
When do we expect an answer to the ED regarding !he secret prisons?

Answer:

~

We are aware of press reports that the ED plans to make a request for
information through the UK Presidency, but we have not yet received
any sucl). request.

~

We remain in regular communication with our European allies about
these issues in the meantime.

/

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN'2009 200706444

UNCLASSIFIED .
L0669

UNCLASSIFIED

Drafted:

L/EUR:DTerrill (7-1270)

Cleared:
L: JBellinger
L/EUR: POlson
EURIWE: KAllegrone
EURJERA: RFaucher
S/CT: BHartley
S/WCI: ASagor

UNCLASSIFIEb
L0670

UNCLASSIFIED
\

Conklin, Maegan L

RELEASED IN FULL

From:
Sent:
To:
Cc:
SUbject:

Terrill, Damon A
Wednesday, December 14, 2005 11 :35 AM
Bellinger, John B (L Bureau); Witten. Samuel M; Dorosin, Joshua L
Jacobson, Linda; Harris, Robert K; Olson, Peter M
PLEASE CLEAR (Press Tasking to l- CaE Statements on Detainees)

Importance:

High

Attachments:

121405lPressGuidanceCoEStatement.doc

Can we go with the attached for purposes of today's briefing?
Many thanks.
Damon (7-1270)

121405LPressGuida
nceCoEStateme...

--Original Message··From:
Terrill, Damon A
sent:
Wednesday, December 14, 20059:54 AM
.
.
To:
Bellinger, John B (L Bureau); Jacobson, Undai Hams, Robert K; Witten, Samuel Mi Olson, Peter M; Domsln, Joshua L
Press Tasking to L - CoE Statements on Detainees
SUbject:
Importance:
High

Please note the below press tasking, on which L has the lead. I have attached a copy of the COE's statement, to
which the tasking refers, as well a~ a template for use in creating the guidance.
L I SJWCII EUR: Comment on the Council of Europe's Committee on Legal Affairs and Human Rights
report on inquiry into reports of secret prisons and rendition flights.

Best.
Dal110n (7-1270)

« File: COE Statemet'Secret Detention Centres in Europe.doc» «File: .
121405LPressGuidanceCoEStatement.doc »
Damon A. Terrill
Attorney Adviser & Press Officer
United States Department of State
Office of the Legal Adviser
European & Eurasian Affairs (UEUR)
2201 C Street NW
Washington, DC 20520
(202) 647-1270

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0671

UNCLASSIFIED
Conklin, Maegan L

Subject:

Terrill, Damon A
Tuesday, November 29.20056:13 PM
Witten, Samuel M
Bellinger, John B (L Bureau);. Olson, Peter M; Dorosin, Joshua L; Jacobson. Linda; Propp,
Kenneth R
RE: Press Briefing Transcript

Attachments:

11-29-05 Final Guidances.doc

From:

RELEASED IN FULL

Sent:
To:

Cc:

Sam The whole of what was in his briefing book for today's press conference is in the attached. Ours is the only gUidance on
the subject.
.
He does note that he was in the meeting with the Secretary and the Foreign Minister. I very much assume that he
prepared on his own (or in personal consultation with the Secretary in the very short while between the conclusion of the
meeting and the press briefing) that portion of his remarks that characterized the meeting. Nonetheless. I've asked AGS
whether they prepared anything for Sean qutside the context of the press briefing book (the attached) and will let you know
what I hear back I will pass along anything they put together.
Best.
Damon

11-29-05 Final
Guldances.doc (.••

Damon A. Terrill
Attorney Adviser & Press Officer
United States Department of State
Office of the Legal Adviser
European & Eurasian Affairs (UEUR)
2201 C Street NW
Washington. DC 20520
(202) 647-1270

--·-Original Message--From:
Witten, Samuel M
sent:
Tuesday, November 29, 2005 5:57 PM
To:
Terrill, Damon A; Bellinger, John B (L Bureau); Olson, Peter M; Dorosin, Joshua l; Jacobson, Unda; Propp, Kenneth R
Subject:
RE: Press Briefing Transcript

Damon - Clearly Sean was working from a much better and more detailed script than we gave them. Do we have a
copy of what others prepared for hi~?
---Original Message·:··From:
Terrill, Damon A
sent:
Tuesday, November 29, 2005 5:54 PM
To:
Bellinger, John B (L Bureau); Olson, Peter M; Witten, Samuel M; Dorosin, Joshua L; Jacobson, Unda; Propp, Kenneth R
Subject:
Press Briefing Transcript

Please see the attached FYI. Over half of the press briefing today was devoted to detainees I "secret prisons"
issues.
Damon (7-1270)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

._--..

_-_

-.. -.

1

UNCLASSIFIED

---L0672

UNCLASSIFIED
« File: dpb # 202 November 29.doc »
Damon A. Terrill
Attorney Adviser & Press Officer

United States Department of State
Office of the Legal Adviser
European & Eurasian Affairs (UEUR)
2201 C Street NW

Washington, DC 20520
(202) 647-1270

uNCLASSIFIED
L0673

UNCLASSIFIED

!-CU3c;fl

RELEASED INFULL
FINAL
GUIDANCES

CONTENTS

TUESDAY, NOVEMEBER 29, 2005

U.S.-Israel Strategic Dialogue
Under Secretary for Political Affairs
Nicholas Burns to Give Remarks on U.S.
Policy Toward Iran (11/28)

POSTED

Statement
Media Note

AF

Kenya

EAP

Hong Kong

Readout of Martin Lee Visit

EUR

Region
Azerbaijan

Alleged CIA "Secret Prisons"
U.S.-Azerbaijan Economic Task Force

NEA

Iraq
Israel
IsraellPalestinlans

Police Training
Ambassador Khalilzad Communicating with
Iran
U.s.-Israel Strategic Dialog
Secretary's Meeting with Saeb Erekat

SA

Bangladesh
Pakistan

Terrorist Attacks
F-16 Sales

WHA

Venezuela

Incident at Airport Involving U.S.
Congressional Delegation

MISC.

EB

GAO Report on U.S. Terrorist Finance
Efforts

-

Iran

Ban on Demonstrations

THERE WAS A DAILY BRIEFING TODAY.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0674

UNCLASSIFIED

J-,&39G

RELEASED IN FULL
L Press Guidance
November 29, 2005
Alleged CIA "Secret Prisons" in Europe
Question:
When do we expect an answer to the EU regarding the secret prisons?

Answer:

}>

We are aware of p~ess reports th~t the EU plans to make a request for information .
through the UK Presidency, but we have not yet received any such request.

~

In the meantime, we are in regular communication with our European allies about
a wide range of issues, inCluding the war'on terrorism.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0675

UNCLASSIFIED

Drafted:

LIEUR:DTerrill (7·1270)

Cleared:
L: JBellinger • ok
LIEUR: POlson - ok
EURlWE: KAllegrone - ok
EURlERA: RFaucher - ok
S/CT: BHartley - ok
SfWCI: ASagor - ok
INRIEUR/C: DArmitage - ok

UNCLASSIFIED
L0676

UNCLASSIFIED

LaftJ~·

RELEASED IN FULL
December 6,2005

Dear Mr. Marty:
Thank. you for your letter of November 14,2005, concerning "alleged
secret detention centers in Council ofEurope member states." On December
5,2005, our Secretary of State made a statement on this issue, a copy of
which I enclose. I trust this statement responds to the concerns that CoE
member States have raised.
Sincerely,

Craig R. Stapleton

Enclosure: As stated.

Mr. Dick Marty,
Chairperson,
Committee on Legal Affairs and Human Rights,
Parliamentary Assembly of the Council of Europe,
F~67075 Strasbourg Cedex.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFiED
L0677

UNCLASSIFIED

J-f2'/tJ~

RELEASED IN FULL
December 6, 2005

Dear Mr. van cler Linden:
Thank you for your letter of December 2,2005, requesting a meeting
with the Secretary of State during her.European trip this week concerning
"reports alleging that territories of some member states have been used in
connection with practices of secret detentiqn or extraordinary rendition in
possible violation ofintemational human rights law." Unfortunately, as you
can imagine, her schedule does not allow for an additional meeting. On
December 5, 2005, the Secretary made a statement on this issue, a copy of
which I enclose. I trust this statement responds to the concerns that CoE
member States have raised.

Sincerely,

Craig R. Stapleton

Enclosure: As stated.

Rene van der Linden,
President,
.
Parliamentary Assembly of the Council ofEurope,
F-67075 Strasbourg Cedex.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0678

UNCLASSIFIED

ILiA.r>

RELEASrIrsI~1!6fL'

:ilCLASSIFIED
i<.OG 11/16/2005

JLM/C:JROSENBLATT
JL:KEBAKER,POL/D: BTURNER
'::>L/D: BTURNER
,::>LOUT
MEMBASSY PARIS
IMMEDIATE
NFO EUROpEAN POLITICAL COLLECTIVE PRIORITY
MCONSUL STRASBOURG PRIORITY
EeSTATE WASHDC

.0. 12958: N/A
AGS: PREL, PINR, PINS, FR
OBJECT: ACTION REQUEST: GUIDANCE ON RESPONSE TO COE
NVESTIGATION
(U)

This is an action request.

See para 3.

(U) Amb. Stapleton received by fax a letter (full text
,ara 4) from Dick Marty, whom the Council of Europe
'arliamentary Assembly has appointed to investigate the
.llegations of ~IA secret detention centers in CoE member
:ountries. The key phrase reads, 11 I would very much
.ppreciate receiving from your authorities any pertinent
.nformation they may be able to provide me with on this
:ubject. 1I
'.
(U) ACTION REQUEST: please provide authorized
.anguage for use by Ambassado~ and Strasbourg consulate in
~esponse to COE requests.
:. (U) Text of Marty letter:
>arliamentary Assembly
~he Council of Europe
;ommittee on Legal Affairs and Human Rights
:'he Chairperson
.4

November 2005

)ear Mr. Roberts Stapleton,
[ address this letter to you in your capacity as Permanent
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0679

UNCLASSIFIED

)server of the United States of America to the Council of
lrope.
; you are no doubt aware, I have recently been instructed
, the Parliamentary Assembly's Committee on Legal Affairs
ld Human Rights to collect information on ."alleged secret
~tention centres in Council of Europe member states U as a
~sult of communications received on this subject from a
1mber of sources, especially Human Rights Watch.
Lth this in mind, and in particular the existence of
arious allegations concerning your country's involvement
1 such activities in Council of Europe member States 'as of
)01, I would very much appreci~te receiving from your
lthorities any pertinent information they may be able to
~ovide me with on this subject.
look forward to receiving a reply to my request at your
convenience and thank you for your cooperation.

~rliest

)urs Sincerely,
lck Marty
:'TD LETTER TEXT

lease visit Paris' Classified Website at:
ttp://www.state.sgov.gov/p/eur/paris/index.cfm
::lfmann

UNCLASSIFIED

L0680

07-12/2005

UNCLASSIFIED

lO:~8

...

005-12-.07 09;45

....

0388412796 »
~

00143122663

P 1/2

..

... ..

Strasbourg, 6 December 2005

Dear Secretary of State.
I write further to my leiter of 2 December 2005. in which 1 enquired about the possibility of a
meeting with you during your visit to Europe. The purpose of this meeting would have baen to discuss the
issue of allegations relating to secret detentions and extraordinary renditions involving lhe C.I.A. and
taking place on the'ferritory of Council of Europe member States.

,

0'

. I understand that the programme
your visit did not allow for such a meeting to take place. I
would like to lake this opportunity. therefore. to express some of the concerns that I would otherwise
have stated in person.
.
Democratic Europe has always enjoyed excellent mutual relations with the USA. We all stand (or
the same values, given &ffeet through tho basIc principlp.s of democracy. human rights and the rule of
law. I fear. however. U,at the current nUegatiQns rlSI< damaging the image 01 tho USA in Europe and
underminil1g transatlantic relationships. at a time When the globa' socurity sib.laUon requires strong
alliances between our countries.

.

.

For the Parliamentary Assembly of ttlEl Council 01 Europo. which brings together 630 members of
national part/aments from 46 European coulltrics. Ihis malter is of utmost importance, We consider that
~uch possible practices as secret detention and extraordinary rendition are in clear Violation 01 our basic
legal standards conceming the· prohibition on torture and inhuman treatment aM the right to liberty and
security of the person. We have responded to tho cunent situation by establishing an enqUiry, to Oe
conducted by lhl} Chairperson 01 our Committee on Loyal Affairs and Human Rights. Mr Dick Marty.
, WOllld urge tflo U.S. authorities to cooperate fUlly witn Mr Marty'S enquiries in order to discover
and make public the t.-utl, nbout these allegalions. Your c.()untry's position on this issue is crucial in oroer
to demonstrate that the same rules apply to alf countries. Failing this would seriouSly undormine the
moral foundatiollS 01 the democratic world order.

Yours sinceroly.
'.

.: Rene van dar t.lllden
SecretaI)' of State Or. Condoleezza RICE
U.S. Department 01 Slate
2201 C Street NW
Washington DC 20520
Un~ted Slates ot America

•·":,.Ir,( c'.i./,/,_·:.. .'
"'I:;-"'(I'~'(

,.;

(!It"fI:It~"J'~1 t. .• /;.
r

,~i"'n"n'

'-iJNITEDSTATES DEPAR.TMENT OFSTATi- -.'."" ....
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

. ·I,~/. : u (,./ / \'.\ ~i
,."fll

,:.·/1..1.1

f.'

/r' .~/~·
~/.~/.~/. .

".~'I" .J~,!",.·/,.,·ltp/.ft.·Jj (tJ."''f'f-'.'''/

UNCLASSIFIED

I

-_._-------._-_._--L0681

UNCLASSIFIED
Conklin, Maegan L

Subject:

Terrill, Damon A
Friday, November 04, 200511:40 AM
Dorosiri, Joshua L; Bellinger, John B (L Bureau)
RE: URGENT: ICRC - CIA Prisons Press Guidance

Importance:

High

Attachments:

LPressGuidancelCRClnquiry.doc

From:

Sent:
To:

RELEASED IN FULL

John and Josh'This is due now. Really now. Briefing is at noon.
Without objection, I will take down the attached.
Damon

LPressGuidancelCR
Onqulry.doc .n

. ---..Qriginal Message-··
from:
Dorosln, Joshua L
sent:
Friday, November 04,·2005 11:29 AM
To:
Eisenhauer, Peter A(SA-l); santos, carol A(SA-l); Pollack, Margaret )(SA-l);Gorjance, Mary A(SA-l); Miller, Ronald
W(S/WO): Amadeo, Srefanie(P); Fritz, Jonatnan 0(0); Lagon, Mark P; Greene, Richard L (PRM)(Main State Rm 5824)
Cc:
Terrill, Damon A; Schau, Nina E
Subject:
URGENT: JCRC • CIA Prisons Press Guidance

«File: Doc2_.doc»
AII-

We understand that the tasking for guidance on JCRC is back on - please review the attached as soon as possible.
We've·taken Peter's initial draft and incorporated points from John Bellinger.
ThanKs. Josh

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED
L0682

UNCLASSIFIED

~()#II-'

RELEASED IN FULL

,

L Press Guidance
November 4, 2Q05

ICRC Inquiry About Detention Facilities

Question:
Have we received any requests from the JeRe regarding the reported CIA
detention facilities?

Answer:

)- The JCRC plays an important humanitarian role and we have an
excellent working relationship with them.

)- As you know, our relationship is predicated on confidentiality.

)- That said, we anticipate that we will be in consultation with them on
this story.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED
L0683

UNCLASSIFIED

Drafted:

. L/PM:JDorosin

Cleared:
L: JBellinger
PRM: MPollack
PRM: MGorjance

UNCLASSIFIED
L0684

UNCLASSIFIED
Conklin, Maeuan L

SUbject:

Oeeks, Ashley S
Friday, May 12, 2006 6:54 PM
Bellinger, John B (L Bureau)
Filippatos, James; Dorosin, Joshua L
1M to D on leRe/undisclosed detention

Attachments:

LEGAL-#125689-v1-im':"on_undisclosed_detention.doc

From:
Sent:

To:
Cc:

RELEASED IN FULL

lfGAL-#12S689-vl
·im on undisd.•.

- John: Here's a draft Info Memo for 0 on the JCRC and undisclosed detention. If this looks ok to you. I'll
get clearances trom P and o staff and PRM Monday morning:
Thanks.
Ashley

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 22 JUN 2009 200706444

UNCLASSIFIED
L0685

UNCLASSIFIED
Conklin, Maegan L
From:

DOfosin, Joshua l

Sent:

To:
Cc:

Tuesday. April 25, 2006 6:39 PM
Bellinger, John B (L Bureau)
Oeeks, Ashley S

SUbject:

Note to S on IGRG Report

Attachments:

note to S on undisclosed detention_.doc

RELEASED IN FULL

note to S on
undisdosed ooten.•.
John -

Attached for your comments is a draft note from you to S on the IGRC's undisclosed locations report.
Josh

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 22 JUN 2009 200706444

'uNCLASSIFIED
L0686

UNCLASSIFIED

Page lof2

Conklin, Maegan L
From:

Dolan, JoAnn (L-PM)

Sent:

Thursday. October 21,20046:43 PM

To:

Thessln, James H (SBU); Deeks, Ashley S (l-PM); Dorosin, Joshua l (l-PM)

RELEASED IN FULl

Subject: FW: 10/11 AP Report: Al Qaeda suspects have 'disappeared'
more of same

Report: AI Qaeda s'uspects have
.'disappeared'
NEW YORK (AP) - At least 11 al Qaeda suspects have "disappeared" in U.S. custody, and some may
have been tortured, Human Rights Watch said in a report issued Monday.

The prisoners are probably being held outside the United States without access to the Red
Cross or any oversight of their treatment, the h'uman rights group said. In some cases, the
United States will not even acknowledge the prisoners are in custody.
The report said the prisoners include the alleged architect of the September 11 attacks, Khalid
Shaikh Mohammed, as well as Abu ZUbaydah, who is believed to be a close aide to Osama
bin Laden.
In refusing to disclose the prisoners' whereabouts or acknowledge the detentions, Human
Rights Watch said, the U.S. government has violated international law, international treaties
and the Geneva Convention. The group called on the government to bring all the prisoners
"under the protection of the law."
"I think the U.S. demeans itself when it 'adopts the philosophy that the ends justify the means
in the fight against terror," said Reed Brody, special counsel with Human Rights Watch.
CIA spokesman Mark Mansfield said the agency has not seen the report and declined to
comment.

.1

The report -- titled "The United States' 'Disappeared:~ The CIA's Long-term 'Ghost Detaineesltl
- said many of the prisoners have provided valuable intelligence to U.S. o.fficials. But it also
cited reports that some detainees have lied under pressure to please their interrogators.
Human Rights Watch has no firsthand knowledge of the treatment of these detainees. Much of
the report stems from news accounts that have cited unidentified government sources
acknowledging the torture or mistreatment of detainees.
The report provides a brief sketch of 11 detainees believed to be incommunicado in
undisclosed locations. They hail from countries across the Arab world, including Libya, Yemen,

UNCLAS.SIFIED
4/6/2009

UNITED STATES DEPARTMEN:r OF STATE
REVIEW AUTHORITY: ARCffiE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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Page 2 of2

Saudi Arabia and Kuwait. U.S. authorities have confirmed the detention of six of them, the
report said.

Copyright 2004 The Associated Press. All rights reserved This material may not be pUblished,
broadcast, rewritten, or redistributed.

(

UNCLASSIFIED
4/6/2009
L0688

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OoD News: Defense Deparbnent Regular Briefing

~nited

Page 1 ofl4

'~QI/ I

Stales Department ofDefense.

News Transcript

RELEASED IN FULL I

On the web: !mP-:l/wWWLd,l:fl=.Il§..e.Ji.nk...!!tiYg,i-!2inldlp.rint.cgtl
hnP-:llwww.defenseJink.milllranscrip-tsI2004/tr20040617-secdero88J.html

Media contact: +1 (703) 691-5131
Public contact: bnP.:lfwww.dod.millfaWcommenlhtml or +1 (703) 428-071 J

Presenter: Secretary of Defense Donald Rumsfeld and General Peter

Pace, Vice Chairman, Joint Chiefs of Staff

Thursday, June 17,2004
2:31 p.m. EDT

Defense Department Regular Briefing
,
SEC. RUMSFELD: Good afternoon.
Media reports in the last few days have focused on what some have termed a surge in violence
in Iraq, the attacks being waged by enemies of freedom who are threatened by the steady advances that
are being made in that countty. The extremists' efforts to intimidate the Iraqi people I believe will fail.
A new Iraqi government is being established with the endorsement ofthe United Nations and
the international community. Iraqis are working to build a free and ~efu1 society, and the new
leaders have thanked the American people for their support and for their sacrifices. A recent survey
found that 63 percent of Iraqis believe that the interim government will improve life in their country.
Growing numbers ofIraqi security forces and coalition soldiers will continue to help provide
security and train the new Iraqi anny and police forces so security responsibilities can be passed to
them as rapidly as is possible. Thousands ofcourageous Iraqis have stepped forward to defend their
country, and thousands more are volunteering every day. The number of recruits standing in line to
join the various elements of the Iraqi security forces is impressive. As we have seen, this is something
that terrorists and assassins want desperately to prevent.
This much is certain: coalition forces cannot be defeated on the battlefield. The only way this
effort could fail is ifpeople were to be persuaded that the cause is lost or that it's not worth the pain, or
if those who seem to measure progress in Iraq against a more perfect world convince others to throw in
the towel. I'm confident that that will not happen.
On another note, r want to· address recent suggestions that somehow the war in Iraq might
derail our efforts to transfonn the armed forces to enable them to be better equipped to confront the
new threats ofthe 21st century. I would say that just the opposite is true.
'
As with any birge org~ization, change can be slow. Sometimes it takes a major event to cause
people to realign their priorities. The global war on terror was such an event, and the requirements of
its new challenges have allowed us, for example, to begin the urgent task ofrebalancing the active and
reserve components of our anned forces, moving skill sets 'that are now found almost exclusively in the
Guard and Reserve into the active force so that we're not excessively reliant on the Guard and Reserve
for those frequently needed skills.

Second. we're transforming the Anny to make brigades more self- contained, more selfsustaining, and available to serve any division commander.

~PPitwm.f~\)S£li~¥lWf~8lf<Y~.&fgi?http;//www.defensennk.milltranscripts/2004
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/C4.J~;E
22_-l.11N:2.909 200706444

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And third, we're adjusting our global posture from a somewhat static, Cold War era defense to
one that will enable us to work closely with our friends and allies both within and across regions, and
to develop more rapidly deployable capabilities rather than focusing on presence and mass.
These and other changes are needed, and in some cases they were long overdue. The global

war on terror has compelled us to take action, and the men and women in unifonn and our strong
civilian workforce are, in my view, working effectively to achieve these needed changes.
General Pace?
GEN. PACE: Thank you, Mr. Secretary.

There is certainly some good news for the forces that are working in Haiti in support ofthe new
Haitian government As you know. we've been there about three months now - U.S. forces, French
forces, Canadian and Chilean -- to restore stability over the last· three months. At the end ofApril, the
U.N. Security Council voted unanimously to support a resolution to support the Haitian government
and the Haitian people, and to have it under U.N. mandate. Brazil has stepped forward as the lead
nation. They bave the lead elements oftheir command team there now. During the rest ofthis month
ofJune the current forces that are there win be replaced by other coalition forces underneath Brazilian
leadership. And the U.N. and the coalition countries that have volunteered will continue to provide
stabilitY so that the Haitian people can get about foiming their own government and becoming more
prosperous.
With that, we'll take your questions.
SEC. RUMSFELD: Charlie?
Q Mr. Secretary, I'd like to ask why last November you ordered the U.S. military to keep a
suspected Ansar at-Islam prisoner in Iraq secret from the Red Cross. He's now been secret for more
than seven months. And there are other such shadowy prisoners in Iraq who are being kept secret from
the Red Cross.
'.

SEC. RUMSFELD: With respect to the - I want to separate the two. Iraq, 'my understanding
. is that the investigations on that subject are going forward.
With respect to the detainee you're talking about, I'm not an expert on this, but I was requested
by the Director of Central Intelligence to take custody of an Iraqi national who was believed to be a
high-ranking member of Ansae al-Islam. And we did so. We were asked to not immediately register
the individual. And we did that. It would - it was -- he was brought to the attention ofthe
Department, the senior level of the Department I think late last month. And we're in the process of
registering him with the JCRe at the present time.
Q Well. why did you not register the individual, and has this man simply been lost in the
system for - why didn't you teU the Red Cross that you bad him?

SEC. RUMSFELD: The decision was made that it would be appropriate not to for a period.
And he wasn't lost in the system. They've known where he was, and that he was there in Iraq, for this
period of time.

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Q How is that appropriate, sir, when you say that you - aU prisoners in Iraq are being treated
hwnanely under rules set up -:
SEC. RUMSFELD: He has been treated humanely. There's no implication of any problem.
He was not at Abu Ghraib. He is not there now. He has never been there, to my knowledge. There's
no question at all about whether or not he's received humane treatment.
Q But then why wasn't the - why wasn't the Red Cross told, and there are other such
prisoners being detained without the knowledge ofthe Red Cross?

SEC. RUMSFELD: There are -- there are instances where that occurs. And a request was
. made to do that, and we did.
, .Q I - I mean - excuse me. is there a reason for that, sir, why - why they're not told? There
are those who would say. I guess, that - that you're not telling them because you might be mistreating
such prisoners. That might be the suspicion.

SEC. RUMSFELD: That - I understand that. That's not the case at all.· And I think that will
be clear.

Q We]), the other thing is General Taguba has criticized this practice in his report, calling
them ghost detainees.
SEC. RUMSFELD: I recall that. And as I say, that's being investigated. This -- this
individual, this Ansar al-Islam individual I think should be looked atseparately from that.

Q Why is that? Is he a ghost detainee Q

Which-

Q ..; was he a ghost detainee?
SEC. RUMSFELD: We've had subject matter experts down here to briefyou, and they've been
briefmg the Congress. and the Congress has been briefed on this extensively, I think, Dan. is that
correct? And they've been down here and briefed the press as they're able to.
The -- you say why treat them differently. Because. as I understand it, the people who briefed
you on the Taguba report have indicated that they are looking into that, that was part of his
investigation, and that is ongoing. This is not one of those cases, is my point.

Q

~r.Secretary?

SEC. RUMSFELD: Yes.
Q

First of all, where have you been? We've missed you.

SEC. RUMSFELD: (Laughs.) God, where have I been?
(Laughter.)

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Q The Army chief ofstaff. General Schoomaker. the other day, in answer to a question,
referred to the difference between pneumonia and cancer, and the implication was that terrorism is a
cancer incurable and will be with us forever. Do you agree? And if not. have you taken him to the
woodshed?

(Light laughter.)
SEC. RUMSFELD: Pretty big guy to be going to the woodshed. No, I certainly agree with
him that this is a long-tenn proposition. And we've said that repeatedly -- the president has; I have.
You say where have I been. I'm told by Larry that rve done something like eight press and
media availabilities since I've been here, and seven major speeches with Q&As and three testimonies
before Congress and six media interviews ofvarious types. So I've been very much involved.
Q

We just want to see you up there, sir.

SEC. RUMSFELD: Do you?
(Laughter.)
Q Mr. Secretary, I'm wondering, when you get a call or a contact from CIA Director Tenet,
and he asks you to do something like this, ~ have two questions.

SEC. RUMSFELD: Mmm hmm.

Q How does that go about? Does he say -- in other words, "We need you to do this," and
then doesn't tell you necessarily why for, you know, as an agreement, and you trust him?
.
And then second, do you sort of them monitor the progress of an individual like this? In other
words, hows he or she doing?
SEC. RUMSFELD: Okay. let me _. yeah. As I recall. it wasn't a phone call in this case, and
Dan Dell'Orto is here. I think it was a letter. but I could be wrong. It was a phone call?
DANIEL DELL'ORTO (DoD deputy general counsel): If it was. it was certainly followed up
by a letter shortly thereafter.
SEC. RUMSFELD: Yeah. So it was a letter. We know from our knowledge that he has the
authority to do this.
And second, I can't speak for every case. but I have some confidence that in most every case, it
has been either in writing or very well understood orally that the -- that the specifics that were
prOVided are accurate. And .
Q

(lnaudible)·- why the request is made.

SEC. RUMSFELD: And the nature of this individual and why it's important to do what they're
doing.
Q

And then do you get then follow-up infonnation on. say, the intelligence gleaned from this

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individual? I'm trying to ascerta!n how you get the intelligence on him and other key people.

SEC. RUMSFELD: I don't. I tend not to get the interrogation reports. There are, what, how
many thousand detainees in various types and various places? And they're being interviewed, and the
people who have the responsibility for doing the interrogating and for integrating that type of
intelligence feed the intelligence to people who need it. In some cases -- if you arrest somebody, for
example, in a lED manufacturing facility, the question is where did they put the last ones? And so it's
more immediate information. If i~s a high-Tanking Ansaf aI-Islam individual like this, \t's a different

type, and then it goes more into the macro or strategic intelJigence as to how we might address the
entire network.
Q

But you're not ••

GEN. PACE: It's also important to reaffirm, very important to reaffirm that regardless of how
the U.S. military gets custody of an individual that we are expected to treat them humanely - we will
treat them hwnanely -- and that the orders that go out with regard to those kinds ofthings are humane
treatment. So there's a question -Q But you're not on the blower saying, "Hey, what's new with the intelligence? TeJl me
when you hear something new from these folks."

SEC. RUMSFELD: That's true not only ofanyone that we might be asked to hold for another
government agency. but it's also true of those that we pull in, our forces pull in, whether it's in
Afghanistan or in Iraq.
You know. let me say one thing to follow on Pete's comment. I've been kind offollowing the
headlines and the bullets in 'tile television - the big. powerful hits on torture and this type of thing that
we've seen. Needless to say, I can't read all the articles. and so I'm no expert on what every person
says, and I kn~w headline writers and people dramatize things.
. But in thinking about it all, and I have to be a little careful - we know that there's still more
investigations,going on, and we're going to learn more infonnation, so no one can speak with fmality
or definitively or conclusively at this stage. But - and second, I hl.1ve to be a little careful about what I
say because of the risk of cornm~d influence. But let me just say this: I have read this -- editorials,
"torture" -- and one after another. Washington Post the other day - I forget when it was -- just a great.
bold "torture."
The implicati~n - think of the people who read that around the world. First of all, our forces
read it. And the implication is that the United States government has, in one way or another, ordered,
authorized, pertnitted. tolerated torture. Not true. And our forces read that, and they've got to wonder,
do we? And as General Pace said, we don't. The President said people will be treated humanely. and
that is what the orders are. Tbat·s what the requirements are.
Now, we know that people have done some things they shouldn't do. Anyone who Jooks at
those photographs know that But that's quite a different thing. And that is not the implication that's
out there. The implication that's out there is the United States government is engaging in torture as a
matter ofpolicy. and that's not true. Think ofthe second group ofpeople who see it. All those people
in the region and in Iraq and in Afghanistan, that we need their cooperation, we need their help, the
people in \ht>se countries, the people in the neighboring cmmtries, 0nd think h~w unhelpful that is {Ot
them to gain the inaccurate impression 'that that is what's taking place.

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Third, think ofthe people who, for whatever - whenever -- today, tomorrow. next year-capture an American civilian or American military personnel and will use all those headlines about
torture and the impact in the world that people think that's what's taking place, and use that as an
excuse to torture our people. So this is a very serious business that this country's engaged in.
Now, we're in a war, and I 'can understand that someone who doesn't think they're in a war or
, aren't in a war, sitting in an air-conditioned room someplace can decide they want to be critical ofthis
or critical of that, or misstate that or misrepresent something else, or be fast and loose with the fa~ts.
But there's an effect to that, and I think we have to be careful. I think people ought to be accountable
for that, just as we're accountable.
Jfyou -- when I get up in the morning, I do not say, "Gee, I wonder what some political critic
or some editorial writer coUld say ~ad about something I'm deciding. II When I get up in the morning
and have to decide something and -- I have to think: about - people in our positions ofresponsibility
have to think about protecting the American people, and that's wh~t we do, and we have do it in a
manner that's legal, that follows the President's admonition on humane treatment, that is consistent
,with our laws, consistent with our international treaty obligations - and we do.
Q

(Offmike.)

SEC. RUMSFELD: That - I can say this. Number one, we're not through with these
investigations. But at the moment, 1 have high confidence that I have not seen anything that suggests
that a senior civilian or military official of the United States of America bas acted in a manner that's
inconsistent with the President's request that everyone be treated humanely, that is -- could be
characterized as ordering or authorizing or pennitting torture or acts that are inconsistent with our
international treaty obligations or our laws or our values as a country.
Now Ihave not - I have not seen anything. I have not spent 24 hours a day into all this, but
I've been briefed by most ofthe investigations. I've been briefed by the ones that have been
completed. There are a Jot ofcriminal investigations under way. There are various other investigations
under way. And there's no question but the people doing - correction, there's no question but that the
photographs depict activities that are, in my view, inhwnane and improper. No doubt about that. But
that's quite a different thing from what I'm talking about.

Q Mr. Secretary. I'd like to just get a clarification on -SEC. RUMSFELD:

I'~I

do my best.

Q In the Taguba report, the suggestion is that the movement ofprisoners to hide them from
the Red Cross is improper. In fact, he says it's deceptive, contrary to Army doctrine and in violation of
international law. And that, as you said, is being investigated to the extent that that happened.

SEC. RUMSFELD: We - and to my knowledge, the Q You seem to be drawing a distinction between that and the order that you sent out that
allowed this other prisoner to be not registered immediately. \Yhy is -

SEC. RUMSFELD: I'm not an expert on that. Dan Dell'Orto is. And what I can say is that I
think it's broadly understood that people do not have be registered in l5 minutes when they come in.

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What the appropriate period of time is I don't know.. It may very well be a lot less than seven months,
but it may be a month or more.
.
Dan, do you want to -- is there MR. DELL'ORTO: And they should be registered promptly, sir. SoSEC. RUMSFELD: Its phraseology is "promptly?"
MR. DELL'ORTO: Roughly that, yes.
SEC. RUMSFELD: Fair enough.
Q

So -- but was there an intention to hide this prisoner from the Red Cross?

SEC. RUMSFELD: Not on my part.
Q

What's the purpose ofnot registering a prisoner?

SEC. RUMSFELD: I can guess some purposes. Some could be improper, obviously, and
that's the concern. You don't want to not register somebody for a reason that you're trying to prevent
the ICRC from seeing something that they - you wouldn't want them to know.
The only reason for a delay in it that I can think ofwould be that your interest is in not
interrupting an interrogation process ofsome kind.
Q

But how did this - (off mike) - interrogation -

SEC. RUMSFELD: By having the ICRC gain access.
Q

TheICRC-

(Cross talk.)
SEC. RUMSFELD: But I'm not an expert.
Dan, do you want to comment?
Q

What did George Tenet ask? Why did he want this done?

SEC. RUMSFELD: We've' asked them.

Q

Well, can you say what he said to you?

Q

I mean, you -

Q

It says you received a letter from him, sir.

SEC. RUMSFELD: I did. I think I did in this case. And it's a classified letter.

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What was his reasoning? Why did he ~

SEC. RUMSFELD: Ask him. It's a classified letter.

Q Well. Mr. Secretary, how many-SEC. RUMSFELD: Just a minute. Just a minute. Dan,) don't want say something that's not
accurate here. Do you want to stand up and - this is the deputy general counsel - and be clear.
youtre a lawyer.
Q

Microphone. (Cross talk.)

Q

Ifyou could just (go to ?) the microphone, sir, so we could all hear what you -

SEC. RUMSFELD: Yeah.

DANIEL J. DELL'ORTO (principal deputy general counsel, the DeparpnentofDefense): The
Red Cross serial number should have been registered soon, relatively soon. In terms of access. for
purposes of imperative military necessity, the Red Cross could be denied access for some period of
time to deal with the sorts of things the secretary has indicated. You need to interrogate. You need to
lind infomiation on this person, and the mere availability of this person for that purpose, for the
purpose of seeing the ICRC, might interrupt that or disturb your ability to get information you need to
get. particularly there and on the ground, where we had a terrorist of a known terrorist organization, of
high rank.
We believe that, again, we should have registered him much sooner than we did. It didn't have
to be at the very instant we brought him into our custody. And that's something that we'll just have to
examine as to whether there was a breakdown in the quickness with which we registered him.
And that's about, I think, the most we can say at this point.
(Cross talk.)

Q

But registering him·doesn't mean automatic access by the Red Cross.

MR. DELL'ORTO: Troe. True.
Q

You could say to the Red Cross,·/lWe have Prisoner X. Here is the serial number."

MR DELL'ORTO: True.
Q

"But you can't see him because we're interrogating him."

MR. DELL'ORTO: Yes.
Q

Okay.

(Cross taIk.)
GEN. PACE: But there are reasons - ifI could - and I know nothing about the specific case,

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so I can say this in a generic sense, and that is, I can see a thing where - on the battlefield where you
would not want others to know that you have captured a particular individual. When you register that
individual, that then becomes public knowledge that you now have Peter Pace in your custody. And
there may be a reason for a period oftime, a short period of time, where you would like to keep iliat
hidden.
.
.
SEC. RUMSFELD: And as we get more information, we'll make it available. The Congress
has been briefed extensively on this, as I understand it. No.

I

I

MR. DELL'ORTO: Not this particular case, as far as I know.
MR. DIRlTA: Yes. No, we've done some notifications to the staffon the Hill. both us and the
CIA. with respect to the details ofthis particular case. And as we get more. we will provide it.
SEC. RUMSFELD: As we get more. we'll provide !l1ore here that we can.
Q Sir, did he ask you to do .this or teU you to do this? You say you had no intention of
keeping this man secret from the Red Cross. so why didn't then you -

SEC. RUMSFELD: We had no Q

- tell Mr. Tenet, "All right, we'll take custody but we're not going to - we're going to

register him"?
SEC. RUMSFELD: As we get more information. we'll make it available to you.
Q And the last thing. (Offmike.) How is this case different from what Taguba was talking
about, the ghost detainees?

SEC. RUMSFELD: It is just different, that's all.
Q

But can you explain how and why?

SEC. RUMSFELD: I can't But we'll be happy to have someone come down and briefyou and
explain it.
Q In this case. this is not a violation ofinternational law, as opposed to some ofthe cases
that General Taguba was talking about?

SEC. RUMSFELD: I said I don't know. Are you making assertions for the benefit of eve!'Y0ne
else?
Q

No. No. My question --

SEC. RUMSFELD: I don't know.

Q Okay.
Q

Mr. Secretary, is this a one-of-a-kind case, or is this one of several or more?

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SEC. RUMSFELD: We have on occasion received people from the agency -- I can think of an
additional case right off the top of my head - where they have, for whatever reason, captured
somebody or arrested somebody or been given somebody and at some moment brought them to us and
said would you please take custody of this person. I think there are some - (to stafl)~- that's correct,
isn't it? Yeah.
Q

But how many have they asked you not to register?

SEC. RUMSFELD: I don't know. As I say, we'll be happy to tell you more when we get more.
Q

Did Director Tenet ask you to wait for a particular period of time --

SEC. RUMSFELD: Not that I recall.
Q

•• or was this an open-ended thing?

SEC. RUMSFELD: Not that I recall.
Q Mr. Secretary, to take you back a little further, to late summer, when a lot of -- a number
of officials were expressing concern that adequate intelligence was not being gotten from detainees .in
Iraq, do you recall discussing that with Steve Cambone? And did you ask that anything in particular
be done about that at that point?

SEC. RUMSFELD: I don't recall that.
What I do recall is that when the war started, we began capturing large numbers ofdetainees,
and I can remember vividly saying we don't want large numbers of prisoners ofwar; that an awful lot
ofthose folks have to be Jow-Ievel conscripts; and what one ought to do is to do a quick triage. look at
them, take their weapons, and to the extent they look not to be a threat, send them back into their .
communities and be rid of them rather than retaini~g them. That is a subject I came back to frequently.
But I do not remember the conversation that you're talking about.
Q The problem of not giving adequate inteJJigence so it could be acted upon quickly to deal
with the insurgency as it was developing in late summer. That's what I'm asking about.

SEC. RUMSFELD: Well, there's -- I can remember in - certainly I can remember military
personnel- (chuckles) - so can Pete - saying, "Okay, we need more information. We're getting
people kiUed and wounded, and we need more information about where these terrorists are, and more
information about where these lEDs are coming - the improvised explosive devices are coming from.
and help, intelligence community." And: "CIA. give us more information."
I can certainly - that's a fairly typical thing in a conflict.

Q

But did you in particular ask somebody to do something about it to improve the situation?

SEC. RUMSFELD: Not that I recall. I mean, we, obviously, would talk to the intelligence
community and say what can we do to gather better information. But I don't remember any specific
conversation.·

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(To General Pace) Do you?
GEN. PACE: No, I do not, sir.

Q Mr. Secretary, how closely has the Pentagon been monitoring the situation in Western
Sudan's Darfur region, where even the U.N. is saying a genocide might be underway? The State
Department recently described this as a top priority for the administration. Has the Pentagon been
looking at possible, either humanitarian or military interyention?
SEC. RUMSFELD: We've not been asked to prepare an intervention, if that's your question.
GEN. PACE: General Jones, who is the European commander, obviously would be keepinghas been keeping a very close watch on that and provides input as far as the situation is concerned.
The actual workings with Sudan and the international community currently reside with the State
Deparbnent.
Q General Pace, do you have any indications that Abu Musaab al Zarqawi is in Fallujah or
has been using that city as a sanctuary? And if so, does it make you think twice about how Fallujah has
been handled so far?

GEN. PACE: We have had some information -- I don't recall whether I read it in the
newspaper or saw it on television or got it in a telephone call, to be honest with you. but have certainly
heard the possibility that Zarqawi is in and around the Fallujah area. Whether that is true, 1 do not
know whether or not that is true.
But I still believe that the process which we have been following in Fallujah is the correct
process. We certainly have overwhelming military power available to be brought to bear anytime we
need to and want to in that city. What we have chosen to do, what the commanders on the groimd have
chosen to.do, properly. in my mind. is to work with the city fathers. to work with the new Iraqi interim
government to find a peaceful Jraqi solution to an Iraqi problem.
SEC. RUMSFELD: Go ahead with the follow-up, and then we'll make this the last question.
Q All right. Mr. Secretary. has the picture ofthe connection between Saddam Hussein and al
Qaeda become clearer since the regime feU. and how so?

SEC. RUMSFELD: This is the question that everyone keeps asking. It - do you think Q

(Off mike, laughter.)

SEC. RUMSFELD: It sounds -- you sound like a broken record to me, Brett.
The -- I think the way I would put it is that George Tenet -- first of all, J would say that the -Iraq has been on the terrorist liSt for decades, as I recall. Second. they were giving - Saddam Hussein
was giving some $25,000 to families of people who would go out and become suicide bombers and kiU
people. Ansar al-Islam was active in the country. Abu Nabal (sic - Nidal) Jived there in Baghdad.
Zarqawi was there for long periods. People - George Tenet testified on this subject before the Senate
Intelligence Committee, as I recall. and then •• on a classified basis, and then made public an
unc\assUied veYSlon ofwbat his \est1mony was. And it was what it was. And for me to get int~ the
middle ofthe debate about how to characterize it I think is not terribly useful.

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The other thing I would say is that it appears --I guess I don't know if! should say this or not,
but I -- I suppose I can - it appears that Zarqawi -- who is, everyone in the intelligence community
seems to agree, is engaged as a significant leader ofa network in Iraq and has in his past been
identified by at least some intelligence as being a leader with respect to terrorist activities in other
countries, not just Iraq -- may very well not have sworn allegiance to UBL. But he - maybe, because
he disagrees with him on something, maybe because he wants to be "The Man" himself, and maybe for
a reason that's not known to me.
Now, therefore you probably - someone could legitimately say he's not at Qaeda. On the other
hand, as many people have testified to in open hearings, the linkages in the relationships and the
similarities, in some cases of fmancing as well as methods of operation, are such that even though he
may not have sworn allegiance, he clearly is someone that is doing work ofa very similar nature. And
therefore, I don't - since I am not in the intelligence business, my instinct is to leave the direct answer
to your question to what was said by Director Tenet before the Senate Intelligence Committee unless
the agency is updating it since.

Yeah..
Q Back to fallujah. Fallujah, General Pace. Zarqawi asit~e, is there any evidence that any
terrorist groups or organizations are using Fallujah as a base of operation to laWlch attacks in other
parts ofIraq? Are the Iraqis involved in the Fallujah Brigade who were involved in the negotiations
living up to their end ofthe bargain in trying to I'()Ot out those forces from FalJujah? And do you think
it may be necessary to use that U.S. force you were talking about a minute ago to go in and clean out
those areas ofFailujah in which these elements apparently are still operating?

GEN. PACE: First ofall, I do not know whether or not the individuals, the terrorists, the
insurgents who are in FaJlujah, whether or not they are conducting operations from there. They
certainly are there in the city. We do know that. There are pockets ofthem in the city.
So the FaUujah Brigade, which was the solution of - from the governing fathers of the city and
the interim government. has been t}1e cunent attempt by the Iraqi people themselves to regain control·
oftheir own city. Some of the things have gone very, very well. Since 3 May I think it is there has not
been a cease-nrc violation throughout that city. That's a significant success. On the other hand, we do
not yet have accoWltability for the murder and torture and desecration ofthe bodies of the Americans
who were burned in their vehicles in Fallujah. We do not yet have large tum in ofcrew-served
weapons and the like. So there's still work to do, but there is progress being made.
As I said, we have more than sufficient - we have overwhelming coalition-U.S. military power
available. However, the best solution is an Iraqi solution, and I believe were on the correct path with
the Iraqi government to find a peaceful way to make this work.
SEC. RUMSFELD: Let me just say one last thing. Larry or Dan, is there anything we want to
calibrate on this detainee subject that we talked about? We - our policy here •• I mean, I'm - we
really want to be careful about this. We want to communicate accurately. And we have a team of
people who are working hard on this. Out policy is deart unambiguous and demonstrable. We are
giving everything we find to the Congress. We are doing it is as promptly as we can. To the extent it's
appropriate and possible to do it, we're giving it to the press and the American people. And we intend
to keep on doing that.

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One thing I should say before we close. about Iraq and Afghanistan. The American people had
a chance to see the president ofAfghanistan, Hamid Karzai, here in this country thanking the

American people and the Congress and the President for liberating his country, some 25 million
people. They are making progress in practically every aspect of what they're doing. It is an important
and I think thrilling accomplishment that is being achieved in that country. Women are registering to
vote, whereas previously they weren't allowed to sing or laugh or wear bright colored shoes or do
practically anything in that country without being severely punished.
In Iraq we have -- something significant is in the process of being accomplished. We've - and
it's, again. truly impressive, although admittedlY, we're a year and a halfor so behind Afghanistan. And
the violence is at a higher level and Iraqi people are being killed by the people who are determined to
try to stop what's taking place. But the ability we now have to work with -a single individual instead of
a 25-pers/;>D Governing Council is dramatic.

This individual - the prime minister - and his ~eam - the ministers. the president, the vice
presidents, the deputy prime minister .- but particularly the prime minister, where the power resides has the ability to make a decision. He can do something. He's calling meetings ofneighboring
countries to talk about border security. He's calling up and making phone calls to friends in the region
to ask for additional troops to come in. He is working with the ministries to see that they stand up and
get about the task oftaking over.
I'm not suggesting that it's going to be a pretty sight between here and when they complete this
process ofa large conclave with a constitutional convention eventually, and then elections based on the
new constitution. It's going to be - there are going to be bumps in the road. It will difficult. but it's
always been difficult. But I am personally convinced that they are off to an excellent start and that
they are increasingly going to gain support from the Iraqi people.

People talk about the security situation there and how do you deal with that, what do you do
about it? The fact is that the solution to the security situation.is not secmity only; these things have to
move together. The Iraqi people have got to see that Iraqis are running that country and not some
occupying power or some foreign coalition. They've got to see that Iraqis are making those decisions.
And they in fact are.

Will they make decisions that we might not-have made? You bet. Will they make decisions we
may not even like in some instances? You bet. But is that what it has to be? Absolutely. It's their
country. They're going to have to grab hold of it. They're going to be the ones who are going to have
to provide security for it. They're going to have to find the template that will allow them to fashion a
representative system that is respectful of all of the religious and ethnic minorities in that country.
They're going to have to fashion relationships with their neighbors. And they will end up with an Iraqi
solution, not a U.S. solution or a U.K. solution, but a solution that will be appropriate to them. And I
think they're off •• getting offto a dam good start.
Thank you very much.

Q

Secretary, you still haven't mentioned the 9/11 report, the commission to:<1ay.

SEC. RUMSFELD: .I haven't heard their report or read their report. I understand they were on
television today.

Q

It was kind of scathing in its criticism of -

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.

SEC. RUMSFELD: Why am I not surPrised you'd characterize it that way.
(Laughter.)

Q

See you tomorrow!

(Laughter.)
Q

Thank. you.

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•

Detainee Working Group: 1114/04 Meeting
Tab 1:

Notification and Treatment ofDet~nees/Ghost Detainees
• January 6, 2004 ICRe Note Verbale Concerning Detainees
in Afghanistan
• March 25,2004 ICRCList of Detainees Not'Notified
• July 19,2004 Report on Detention at Undisclosed Locations
• July 21, 2004 Memo to Secretary Powell
.• August 18,2004 Memo from NSA Rice (draft response to
ICRC on notification)
• August 26, 2004 Memo to NSA Rice (State comments on
draft response to ICRC on notification)
• September 30,2004 JCRC Letter to General Casey (attached
to October 14, 2004 JCRC Letter to DOD
\

Tab 2:

Transfer ofFour Individuals
• July 20,2004 JCRC Letter to General Casey (attached to
July 23, 2004 JCRC Letter to DOD
• Draft DOD Response (with StatelL Edits)

•

Tab 3:

Transfer of One Individual
• September 30,2004 JCRe Letter to General Miller (attached
to October 14,2004 ICRC Letter to DOD)
• October 26, 2004 Taft Letters to DOl/Criminal and
CWOIG

Tab 4:

Iraq: Nature of Conflict and Treatment
•
•
•
•
•

•

August 8, 2004 ICRe Statement on Nature of Conflict
August 11 State Draft Paper on Iraq Detention Authorities
October 11, 2004 Cable from Embassy Baghdad
September 13, 2004 JCRC Letter to General Casey
December 20, 2002 U.S. Aide Memoire on Nature of
Conflict in Afghanistan
• November 19,2002 IeRC Aide Memoire on Nature of
Conflict in Afghanistan

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REVIEW AUTHORITY: ARCHlE M BOLSTER
DATE/CASE ID: 22 ruN 2009 200706444

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5

5. Numerous press articles have discussed memoranda that auth{'
the transfer or rendition of terrorist suspects and other detainee~
third nations or otber secret locations for interrogation. (A) On
December 27, 2004, the Washington Post reported that the CIA 1..._ .
authority to carry out renditions under a presidential directive. Did
President Bush sign or renew a presidential directive or other document
authorizing rendition? If so, please provide this document to the
Committee. If not, under what authority is the CIA and/or other
government entities transferring, or rendering, individuals.

Response: It is my understanding that the United States does not render
individuals to countries where we believe it is more likely than not they will
be tortured. A presidential directive to the CIA of the sort you describe
would, if it exists, be subject to the oversight of the Intelligence Committees.

I
I

I

!

(B) On January 6, 2005, tbe Washington Post described an OLe memo
dated March 13,2002, titled "The President's Power as Commander-inChief to Transfer Captive Terrorists to the Control and Custody of
Foreign Nations." The article states that you were involved in the
development of the policy reflected in the memo. Will you ·provide us
with a copy of that OLe ·memo? What did OLC conclUde, and do you
agree with its conclusion(s)?

Response: As a general matter, it is not the role ofCounsel to the President
to develop policy. The role ofCounsel is to detennine which legal issues
should be eXamined by the Justice Department. OLe, as a general matter,
provides the definitive legal views ofthe Executive Branch. The Executive
Branch has a substantial need for confidentiality with respect to non-p~blic
OLe opinions, in order to protect the deliberative processes of the Executive
Branch and the attorney-client relationship between Administration officials
and OLe. The longstanding practice is that non-public OLe opinions are not
disclosed outside the Executive Branch. Based on this policy, I respectfully
must decline either to provide a copy of the opinion or to reveal its
conclusions.
6. As you noted in your testimony, several DOD investigations into U.S.
detention policies are now complete. However, the narrow mandates
and limited scope of tbese investigations prevented them from
addressing critical issues. Key inquiries into issues like contractor
abuses and "ghost detainees" were left unexplored. The on-going

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORI1Y: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

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investigations are similar~y constrained. In a letter to President Busb
dated September 7, 2004, eight retired generals and admirals called for
a comprehensive, independent commission to investigate U.S. detention
and interrogation practices at Abu Ghraib and otber U.S.-operated
detention facUities. Do you support tbe creation of such a commi~sion?
If not, why not?
Response: There have been a number of completed investigations into issues
relating to detainee operations and interrogations. I Wlderstand that a number
of investigations are still ongoing, and those should be allowed to proceed.
Additionally, there have been numerous trials, courts martial, and.
administrative proceedings examining individual conduct relating to
detainee operations and interrogations. These too should be allowed to
proceed. Congress has held numerous hearings and received numerous
briefings. Finally, I have read in press accoWlts that there are several
ongoing criminal investigations and those should be allowed to proceed.
Relatedly, wherever there is reason to believe that crimes may have been
committed that are within the authority of the Department of Justice, you can
be assured that if 1 am confirmed, the Department under my leadership
would investigate and, where appropriate, prosecute such crimes. Because
there is so much ongoing review, I do not currently have reason to believe
that the proposed commission is advisable, but I reserve judgment on that
question.
7. Newsweek reported on January 8, 2005, that the Defense Department
was considering a plan to recruit, train and 'deploy "death squads" as
part of a decapitation operation targeting Iraqi insurgents. Under the
proposed plan, insurgents could be assassinated or targeted in so-called
"snatch" operations, in which the individuals are sent to secret facilities
for interrogation. (A) Were you consulted about tbis pJan? (B) Did the
President make a determination of any kind authorizing assassinations
in Iraq? (C) ,Was there an amendment or modification to Executive
Order 12333 to implement this program or any other program
authorizing assassinations?

Response: I do not recall being consulted about any such plan, nor am I
aware
ofany Presidential determination of the sort described or modification of the
Executive Order.

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7

Geneva Conventions
8. You implied at tbe hearing that had the United States applied the
Geneva Conventions to the conflict in Afghanistan, as Secretary Powell
recommended, all persons detained there, including members of al
Qaeda, wo uld have been entitled to aU the benefits of POW status. (A)
Do you acknowledge that bad the United States applied Geneva broadly
to tbe conflict, it could still have denied suspected terrorists the
privilegeS of POW treatment, even while retaining its legal obligation to
treat them humanely?

Response: Afghanistan as a nation state and signatory is a party to the
Geneva Conventions, and the President detennined that the Geneva
Conventions apply to the United States' armed conflict with the Taliban.
The President determined that members ofthe Taliban were not entitled to
.the privileges of POW status, in part because they did not fight in
accordance with the laws ofwar. By contrast, al Qaeda plainly is not a party
.to those Conventions, and thus the United States has no legal obligation
under the Geneva Conventions to al Qaeda or its terrorist fighters. At Qaeda
operatives would not qualify for POW status even ifthe Geneva
Conventions applied, however, because among other things they (like their
Talibart allies) do not wear an insignia distinguishing them from the civilian
populatien or conduct their operations in accordance-with the laws of war.
(B) What advantage did we gain as a nation in not going through the

process set forth by Article S of the Geneva Convention relative to.the
Treatment of Prisoners of War ("GPW") and U.S. military regulations
for affording or denying POW status to individual detainees?

Response: The Geneva Conventions are treaties; they are contracts between
nation-states. And as a general proposition, words and tenns in contracts and .
agreemen~ mean something. The provisions of a treaty are carefully crafted
by the Executive Branch. Treaties are signed by a President with a clear
understanding of its terms and ratified by the Senate, subject to certain
restrictions, understandings, and declarations. For these reasons I believe
that in declaring our legal obligations under a treat, one has to follow the
words ofthe treaty, irrespective ofpossible conflicting views of an
Executive Branch official, an international organization, or another country.
The process set forth in article 5 applies only "[s]hould any doubt arisen as
to whether captured belligerents satisfy the requirements set forth in article 4

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for POW status. The President detennined that there was no doubt as to the
status of belligerents captured in Afghanistan because al Qaeda plainly was
not a party to the Conventions and since the Taliban militia plainly did not
satisfy the requirements for POW statUs because, among other things, they.
did not distinguish themselves from the civilian population or comply with
the laws ofwar. It is widely recognized that if a group does not satisfy the
requirements of article 4, its members are not qualified for POW status, and
the United States has made group-based decisions as to POW status in other
conflicts, including World War II and Vietnam. Accordingly, article 5
hearings to determine whether individual Taliban or al Qaeda belligerents
were eligible for POW status would have been futile. Combatant Status
Review Tribunals, the procedures of which are in many ways patterned after
article 5 tribunals, are currently conducting individual reviews of the
separate question ofwhether the al Qaeda and Taliban detainees at GTMO
are enemy combatants subject to detention under the laws of war.
9. What were the practical consequences of the President's different
determinations regarding the applicability of GPW to captured
members of al Qaeda and the Taliban? Must al Qaeda and Taliban
detainees be treated any differently as a result of the decision to apply
GPW to the latter and not the former? Have they been treated any
differently in fact?

Response: Neither al Qaeda nor Taliban detainees are entitled to POW
status. Both types ofdetainees are protected by the President's February 7,
2002, directive, by the United States' clear policy against torture, and by
various other treaty and statutory provisions. See answers to Question 1 and
2, above.
10. In your draft memo to the President dated January 25, 2002, you
identified a number of "positive" ramifications of a presidential
determination that GPW does not apply to the Taliban, including
"[s]ubstantially reduces the threat of domestic criminal prosecution
under the War Crimes Act (18 U.S.C. 2441)." Elaborating on this
ramification, you wrote, "[I]t is difficult to predict the needs and
circumstances that could arise in the course of the war on terrorism."
What did you mean by that? Please give examples of "needs and
circumstances" that could, in your view, justify violations of the War
Crimes Act by U.S. personnel.

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Response: The document to which you refer" is a draft that was leaked and
never sent to the President in that form. I cannot envision needs or
circumstances that would justify violations of the War Crimes Act by U.S.
personnel.
11. Defense Secretary Rumsfeld and former CIA Director Tenet bave
admitted to hiding individuals from tbe Red Cross in Iraq. (A) Would
you agree tbat this practice violates GPW?

Response: It is my understanding that our legal obligations with respect to
the JeRC are derived from the Geneva Conventions. As to specific
individuals, my Understanding is that there are investigations ongoing into
these matters which presumably will detennine whether there were any
violations ofthe Geneva Conventions or any other law or treaty.
(B) Do you believe that tbose 'wbo willfully violate GPW should be
punished for dofng so? .
"

Response: Yes. Pursuant to article 1 of GPW, the United States has
undertaken "to respect and to ensure respect for the pI:esent Convention in
all circumstances." Pursuant to article 129, the United States has undertakeJ?,
to bring persons who commit grave breaches of GPW "before its own
courts" for prosecution, and to "take measures necessary for the
suppression" of other violations of the Convention.
(e) When did you first learn that U.S. forces were hiding prisoners from
the Red Cross? What did you do about it?

Response: I do not recall when I became aWaIe of issues surrounding ICRC
access to certain detainees, but I would have gained such awareness as an
attendee at meetings of senior administration officials. I recall understanding
" that the Department of Defense was investigating the issue.
12. You testified that you relied upon OLC in advising the President
because it had "the expertise t the institutional historyt [and) the
institutional knowledge about what the law is." In January 2002, who
did you think had greater expertise and experience in interpreting the
Geneva Conventions: John Ashcroft and the lawyers at OLCt or Colin
Powell and the lawyers at the State Department? Who d.id you rely

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..

RELEfsrfB
conduct interrogations in Abu Ghraib contributed to the belief that
additional interrogation techniques were condoned in order to gain
intelligence (Jones, pages 15-16; Fay, pages 8,10,22).
QThe lines of authority and the prior legal opinions became blurred
(Fay, page 10).
£;JThe existence of multiple policies on interrogation operations for use
in different theatres confused Army and civilian interrogators at Abu
Ghraib (Fay Finding No. 7).
QCIA detention and interrogation practices in Iraq (conducted under
authority oftbe Bybee Memorandum) led to a loss of accountability,
abuse, reduced interagency cooperation, and an unhealthy attitude that
poisoned the atmosphere at Abu Ghraib (Fay, pages 52-53).
OTbe CIA techniques and practices (in accordance with the Bybee
memo) led to a perception that such techniques and practices were
suitable for Defense Department operations (Fay, pages 118-119).

h

/~ FULL

Response: I would respectfully submit that the Schlesinger, Fay, and Jones
reports speak for themselves on the subjects you indicate. However, the Fay
and Jones reports conclude there is no single simple explanation for why the
abuses at Abu Ghraib occurred. The primary causes are misconduct (ranging
from inhumane to sadistic) by a small group morally corrupt soldiers and
civilians; a lack of discipline on the part ofthe leaders and soldiers ofthe
205 th MI BDE, and a fa ilure or lack ofleadership by multiple echelons
within CJTF-7. The reports went on to conClude that contributing factors can
be traced to issues affecting command and control, doctrine, training, and
the experience of the soldiers we asked to perform this vital mission. The
reports also say the abuses at Abu Ghraib primarily fall into two categories:
a) intentional violent or sexual abuse and, b) abusive actions taken based on
misinterpretations or confusion regarding law or policy. Finally, the reports
say that neither the Department ofDefense nor Army doctrine caused any
abuses; that abuses would not have occurred had doctrine been followed and
mission training conducted. The Schlesinger report stated that the "Panel
accepts the proposition that these terrorists are not combatants entitled to the
protections of Geneva Convention IlL"

of

9) In his report OD the abuse at Abu Ghraib, General Antonio Taguba
concluded that the process of maintaining "ghost detainees" - holding
and moving prisoners to avoid review by the International Red Cross was deceptive and contrary to Army doctrine and a violation of
international law. (a) Do you agree with General Taguba's conclusions

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE In: 22 JUN 2009 200706444

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about the practice of maintaining ghost detainees? (b) Are you a\\
any investigations that bave been, are being, or will be conducted i.
the practice of maintaining ghost detainees? If so please:
i. Identify the agency or person responsible for the investigation, thl
title of the investigation, and whether it has been completed.
Ii. Provide a copy of all completed or provisional reports of those
investigations.

.1

Response: I believe the work ofthe International Conunittee of the Red
Cross is vitally important, and I honor this important group for its continuing
efforts. Assessments ofwhether particular practices were consistent with
Army doctrine is a matter for determination by the Department ofDefense. I
am not familiar enough with the facts of the particular instances you cite to
have a view whether they represent violations of any law. In any event, I
would consult with appropriate lawyers in the' Department ofJustice before
reaching such a conclusion. I am not aware ofwhat investigations may have
been, are being, or will be conducted concerning allegations involving
"ghost detainees:'
10) On March 19,2004, tbe Office of Legal Counsel provided a
Memorandum, signed by Jack Goldsmith, in response to your request
for an opinion on whether the CIA was permitted to relocate prisoners
from Iraq to "facilitate interrogation.»
(a) Why did you ask OLC for that opinion?
(b) Was it your intent to justify the practice of maintaining ghost
detainees?
(c) Why would it ever be necessary to hide a detainee from the
International Red Cross?

Response: The memorandum to which you refer was a draft memorandum
that was never finalized nor signed. The draft was prepared to' assist U.S.
personnel abide by all applicable legal requirements. I believe the United
States has complied with all ofits legal obligations to notify the ICRC.
(d) Do you agree that one consequence oftbe OLe opinion was to
permit abusive interrogation practices to occur without outside
monitoring?

[.
I

Response: No.

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(e) Was this and is this the intent of our policy?

Response: The policy of the United States is to comply with all of OUf legal
obligations
under the Geneva Conventions.
(t) What do you know about actions conducted under the authority of
that opinion?

Response: I do not know whether any actions were conducted in reliance on
the draft memorandum.
(g) Do you agree with the legal analysis interpreting Article 49 of the
Fourth Geneva Convention contained in the March 19, 2004 Goldsmith
Memo?

Response: Because the draft memorandum was never finalized, I did not
have occasion to come to definitive views concerning the analysis contained
in the draft. I recall believing at the time that the draft presented a reasonable
and scholarly interpretation ofthe terms ofthe Geneva Convention.
(h) Please identify and provide all notes, correspondence, memoranda,
e-mail, audio-recordings, documents of any kind which reflect your
request for the Goldsmith memo, requests made to you for opinions on
the meaning of Article 49, your positions, advice, assessments, analysis
or recommendations after your receipt of the Goldsmith memo, and any
objections provided by any Administration personDel to the substance
and/or conclusions in the Goldsmith memo.

. Response: I have no present know:ledge ofany such documents, although I
have not conducted a search. Any records reflecting the information you
specify would involve deliberative material that I am not at liberty to
disclose.
(i) Please describe in detail the discussions between you and Mr.
Goldsmith on the Bybee Memorandum.

Response: Any discussions between me and Mr. Goldsmith concerning the
August I, 2002 memorandum would involve internal deliberations of the
Executive Branch that I am not at liberty to disclose.

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~QI/7

RELEASED IN FULL

intelligence reform legislation that it opposed a provision in the draft
legislation that would have provided legal protections to foreign prisoners to
which they are not now entitled. The President has repeatedly stated that his
Administration does not authorize or condone torture under any
circumstances by U.S. personnel. I, of course, fully support the President's
policy in this area.
e) The same New York Times story reported that the Defense .
Department opposed a measure in the military authorization bill which
would have explicitly prohibited the use of torture, and cruel; inhuman
and other degrading treatment by Defense Department personnel? Why
did the administration oppose that provision? Did you participate in tbe
decision to oppose the decision? Did you lobby anyone in Congress on
the issue? Do you think tbe provision should have been included in the
legislation?

Response: I am not familiar with the matters referred to in the New York
Times story.
16) The trial of Army Specialist Charles Graner for mistreating
detainees at Abu Ghraib recently began in Ft. Hood, Texas. Specialist
Graner's defense is that tbe abuse he committed was authorized by his
supervisors. As I indicated at the hearing, and as corroborated by the
Fay and Schlesinger reports, the policy memos on the Geneva
. Conventions, torture, and ghost detainees that you wrote, requested,
authorized, endorsed, or implemented appear to bave contributed to
detainee abuses in Afghanistan, Guantanamo Bay, and Iraq, inclUding
those at Abu Ghraib prison.
(a) Do you agree that you should personally be disqualified from any
investigation or inquiry into detainee abuses due to the appearance of,
or actual, conflicts of interest that your past activities as White House
Counsel may create?

Response: In a press briefing on August 24, 2004, the Schlesinger Panel
clearly concluded that there was no government policy that called for the
torture or inhumane treatment of detainees. <tBut a series of failures across
the Department ofDefense, the Anny, and U.S. Central Command
contributed to an atmosphere that allowed some of these abuses to occur."
(Congresswoman Fowler) If confirmed, I would take extremely seriously my
obligation to recuse myself from any matter whenever appropriate, and

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200'706444

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would consult with other lawyers with experience and expertise at the
Department of Justice if any such question arises. I would do my best to
ensure that the Department does not become politicized. I would treat with
equal seriousness my responsibility to enforce the law fairly and equally on
behalfof all Americans.

17) When did you first become aware that FBI personnel had observed,
and/or complained about, and/or departed various locations because of,
such abuses by military, intelligence, or contractor personnel? How
were you informed? What did you do in response to that discovery?
Please provide details.
Response: I became aware of the reports to which you refer when they were
reported in the press. I am confident that all credible allegations ofabuse are
being vigorously investigated by the appropriate agencies.

18) During the hearing, you made specific reference to the possibility of
your having a role in investigating tbe substance of the FBI e--mails
produced by the ACLU that reported interrogation abuses at
Guantanamo Bay. You called tbe accuracy of the e-mails into question
due to a claimed erroneous reference to an '4Executive Order." I am
disturbed that you expressed skepticism about the general veracity of
FBI agents reporting human rights violations at Guantanamo Bay
because of a possible mistake in bureaucratic terminology.
(a) Do you really believe that FBI agents would falsely describe serious
criminal activities by otber government agents that they witnessed at
Guantanamo Bay in their official, internal correspondence?
Response: I did not express skepticism about the "general veracity of FBI
agents." An Executive Order ofthe type referenced in the e-mail you have
cited simply does not exist, and it is, in my view, appropriate to make that
fact clear. I have no reason to believe that FBI agents would knowingly
provide false descriptions; that does not mean that they are not mistaken.

(b) Don't your comments serve to discourage the reporting of abuses
and contribute to an environment tbat values secrecy above candor?
Response: No. I encourage anyone with infonnation regarding abuses to
make that information known to the appropriate authorities.

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GONZALES CONFIRMATION HEARING
THURSDAY / JANUARY 6, 2005

INTERNATIONAL LAW ISSUES

Spector: The focus of media

atte~tion

RELEASED IN FULL

has been on the issue

of Judge Gonzales' roles in analysis and recommendations on
the handling of the detainees.

Judge Gonzales had issued

an opinion to the President that the Geneva Convention did
not apply with respect to certain of the combatants,

In

his memorandum of January 25, 2000, he said, lIIn my
judgment, this new paradigm"--referring to the war on
terrorism--nrenders obsolete Geneva's strict limitations on
, questioning of enemy prisoners.,.

II

The Committee will seek

further amplification on a number of substantive issues
from that memorandum, including Judge Gonzales' statement
that, IIIn the treatment of detainees, the United States
will continue to be constrained by its commitment to treat
the detainees humanely and, to the extent appropriate and
consistent with military necessity, in a manner consistent
with the principles of the Geneva Convention. II

This

statement raises the question of what is the meaning of
military necessity and what extent, if at all,'does
,military necessity impact on the ttcommitment to treat n a
detainee humanely.
OPENING STATEMENT OF HON. PATRICK J. LEAHY

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444·

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2

Now, the job of Attorney General is not about crafting
rationalizations for ill-conceived ideas.
more vital role than that.

It is a much

The Attorney General is about

being a forceful, independent--independent--voice in our
continuing quest for justice and in defense of. the
constitutional rights of every single American.

We have

seen what happens when the rule of law plays second fiddle
to a President's policy agenda.

Attorney General Ashcroft

and with the White House Counsel's office has impulsively
facilitated rather than cautiously vetted serious
constitutional issues.

The administration has taken one

untenable legal position after another regarding the rule
of law as we fight terrorism.
The policies include this nominee's role in developing
interpretation of the law to justify harsh treatment of
prisoners.

Harsh treatment is tantamount to torture.

America's troops and citizens are at greater risk
because of those actions, with terrible repercussions
throughout so much of the world.

The searing photographs

from Abu Ghraib have made it harder to create and maintain
the alliances we need to prevail against the vicious
terrorists who threaten us, and those abuses serve as
recruiting posters for the terrorists.

The scandal of Abu

Ghraib,' allegations of mistreatment at Guantanamo, charges
from cases in Iraq and Afghanistan are serious matters, and

UNCLASSIFIED
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UNCLASSIFIED

to date we have unresolved accountability."
From the outset of public disclosure of the Abu
Ghraib photographs, the Bush administration maintained that
any wrongdoing was simply a case of a few bad

app~es.

But

as bits of information have been made public not by the
administration but by the press over the last year, it has
become clear to all that these incidents at U.S. facilities
around the world are not just the actions of a few lowranking members of the military; rather, in the upper
reaches of the executive branch, a process was set in
motion that rolled forward to produce scandalous results,
almost like somebody opening the floodgates in a dam and
the water flowed downstream until it overwhelmed everybody
below.
The Army Field Manual reflects our Nation'S long-held
policy toward prisoners.

My young son was in the Marines,

and he was called up for Desert Storm, the war that was so
quick that he was not in harm1s way.
thihgs even as a Marine.

He was taught these

But the Army Field Manual

reflects our Nation's long-held policies toward prisoners,
and it says, "The goal of any interrogation is to obtain
reliable information in a lawful manner.
expressly prohibits acts of violence or

U.S. policy
in~imidation,

including physical or mental torture, threats, insults, or
exposure to inhumane treatment, as a means of or to aid

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4'

interrogation. It
Now, the policy is in place for a very good reason.
The Field Manual continues, ".The use of torture is a poor
technique that yields unreliable results, may damage
subsequent collection efforts, and can induce the source to
say what he thinks the interrogator wants to hear. II

It

also may place'U.S. and allied personnel in enemy hands at
greater risk.

But senior officials in the Bush White

House, the Ashcroft Justice Department, and the Rumsfeld
Pentagon set in motion a systematic effort to minimize,
distort, and even ignore our laws, our policies, our
international agreements on torture and the treatment of
prisoners.

Defense Secretary Rumsfeld and later Lieutenant

General Ricardo Sanchez authorized the use of techniques
that were contrary to both U.S. military manuals, but also
international law., Former CIA Director Tenet requested and
Secretary Rumsfeld approved the secret detention of ghost
detainees in Iraq.

They did that so they could be hidden

from the International Committee of the Red Cross.

And

still unexplained are instances where the U.S. Government
delivered prisoners to other countries so they could be
tortured.
. . . . So these hearings, if I may conclude, are an
opportunity at long last for some accountability for this
meltdown of longstanding U.S. policy on torture.

White

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5

House Counsel Judge Gonzales was at the center of
discussions on the applicability of the Geneva Conventions
to the wars in Afghanistan and Iraq and the legality of
detention and interrogation methods that have been seen as
tantamount to torture.

He oversaw the formulation of this

administration's extreme views of unfettered executive
power and unprecedented government secrecy .

Senator

Co~yn:

. . Take, for example, the harsh

criticism about the Geneva Convention.

Judge Gonzales has

been harshly attacked for advising the President that all
detainees be treated

humane~y,

but that as a legal mater al

Qaeda and Taliban fighters are not covered by the Geneva
convention.
Now,

I

hate to ruin a.good story by the President's

,

political opponents who are attacking him through this
nominee, but let me just say there is one important point
that needs to be made.

Judge Gonzales is absolutely right.

You do not have to take my word for it.

First of all, al

Qaeda never signed the Geneva Conventions, but moreover,
the Red Cross' own guidelines state that to be entitled to
Geneva protection as a prisoner of war, combatants must
satisfy four conditions:

being commanded by a person

responsible for his subordinates; secondly, having a fixed,

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distinctive sign recognizable at a distance; number three,
carrying arms openlYi and, number four, conducting their
operations in accordance with the laws and customs of war.
Does anyone on this Committee, or anywhere else, for
that matter, seriously argue that al Qaeda terrorists
comply with the law of war?
. By the way, it is important to note that JUdge
Gonzales' legal advice has also been affirmed b¥ three
Federal courts throughout this country and has also been
endorsed by numerous legal scholars and international legal
experts across the political spectrum, as well as both the
9/11 Commission, by the waYi the final Schlesinger report,
an independent report on DOD detention operationsi and a
brief filed recently in the United States Supreme Court "by
former carter

admin~stration officials,

State Department

legal advisers, judge advocates and military commanders,
.and liberal international law scholars, who' concluded that
U[t]he President's conclusion that members of al Qaeda, and
the Taliban, are unlawful combatants" is clearly correct.
Even Washington advocacy director for the Human Rights
Watch, Tom Malinowski, a vocal Bush administration critic,
has grudgingly conceded' that the administration'S
interpretation was "probably correct."
Now, the administration's Geneva position' is not just
right as a legal matter.

!~

is also essential as a matter

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..,
of national security.
I recently published an op-ed that explained that
Geneva Convention protections to al Qaeda would threaten
the

~ecurity

of our soldiers, dramatically disable us from

obtaining the intelligence needed to prevent further
attacks on

U.s.

civilians and soldiers, and badly undermine

international law itself, and I would ask, Mr. Chairman,
that that be made a part of the record.

Just take a look at all the numerous priVileges
provided by the Geneva Convention for traditional prisoners
of war.

For example, questioners could not entice

detainees to answer questions by offering them creature
comforts or even preferential treatment, even though that
is the standard operating procedure in police stations
throughout the United States.

Because the Convention

prohibits the holding of detainees in isolation, al. Qaeda
fighters would be able to coordinate with each other in a
way that would thwart or could thwart effective
questioning.

POW status, even confers broad combat

immunity against current criminal prosecution before
civilian and military tribunals· alike.
Mr. Chairman, surely, no member of the Committee or
anyone else on our side of this conflict actually believes
that an al Qaeda terrorist deserves to be treated better

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8

than an American citizen accused of a crime.

I certainly

would not think so.

think so, .

President Reagan did

~ot

neither did each of his successors in office.

Nearly two

decades ago President Reagan and every President since that
time has rejected a proposed amendment to the Geneva
Convention known as Protocol 1 of 1977 to extend that
Convention to protect terrorists.

As President Reagan'

rightly argued we must not and need not give recognition
and protection to terrorist groups as a price for progress

in humanitarian law.
Washington

P~st

Notably even the New York Times and

agreed at the time.

All of this support from mUltiple Federal courts, from
the 9/11 Commission, the Schlesinger Report, liberal
international legal scholars, Carter administration
officials. even the New York Times and Washington Post, yet
Judge Gonzales is criticized for taking exactly that same
position.
Take one more issue. the Justice Department memos that
have been alluded to here construing the Federal torture
statute.

Judge Gonzales is being attacked for a memo he

did not write, interpreting the law that he did not draft.
It was Congress, not Judge Gonzales. that enacted a strict
definition of torture.

It was congress, not Judge

Gonzales, that specifically provided that only specific
intent to inflict severe pain or mental pain or suffering

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would constitute torture.
As I said, President Bush and Judge Gonzales have both
unequivocally, clearly and repeatedly rejected the use of
torture.

But is there anyone here today who would fail to

use every legal means to collect intelligence from
terrorists in order to protect American lives?

I certainly

hope not.
Finally, I know we are going to hear some about Abu
Ghraib today, we already have, and I think it is safe to
say that everyone agrees that Abu Ghraib represents a
shameful episode in this Nation's history, yet some people
actually want to exploit that tragedy for their own
purposes.

Abu Ghraib should be treated seriously, not

politically.

The Defense Department has been vigorously

investigating the misconduct and prosecuting the violators.
The independent Schlesinger Report that I alluded.to
earlier, concluded that, "No approved procedures called for
or allowed the kinds of abuse that in fact occurred.

There

is no evidence of a policy of abuse promulgated by senior
officials or military authorities."

So if there is no

evidence whatsoever that Judge Gonzales was any way
responsible for the criminal acts that occurred at Abu
Ghraib by a few, why are we talking about this in. Judge
Gonzales' confirmation hearing?

This after all is a

confirmation hearing to head the Department of Justice, not

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10

an oversight hearing of the Department of Defense.

STATEMENT OF HON. ALBERTO R. GONZALES

While r look forward to answering your specific
questions concerning my actions and my views, I think it is
important to stress at the outset that I am and will remain
deeply committed to ensuring the United States Government
complies with all of its legal obligations as it fights the
war on terror, whether those obligat-ions arise from
domestic or international law.

These, obligations include,

of course, honoring the Geneva Conventions whenever they
apply.

Honoring our Geneva obligations provide critical

protection for our fighting men and women, and advances
norms for the community of nations to follow in times of
conflict.

Contrary to reports, I consider the Geneva

Conventions neither obsolete nor quaint.
After the attacks of 9/11, our Government had
fundamental decisions to make concerning how to apply
treaties and U.S. law to an enemy that does not wear a
uniform, owes no allegiance to any country, is not a party
to any treaties, and most importantly, does not fight
according to the laws of war.
As we'have debated these questions, the President has

UNCLASSIFIED

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11

made clear that he is prepared to protect and defend the
United States and its citizens and will do so vigorously,
but always in a manner consistent. with our Nation's values
and applicable law, including our treaty obligations.
Having said that, like all of you, I have been deeply
troubled and offended by reports of abuse.

The photos from

Abu Ghraib sickened and outraged me, and left a stain on
our Nation's reputation.

And the President has made clear

that he condemns this conduct, and that these activities
are inconsistent with his policies.

He has also made clear

that America stands against and will not tolerate torture
under any circumstances.
I share his resolve that torture and abuse will not be
tolerated by this administration. and commit to you today,
that if confirmed, I will ensure that the Department of
Justice aggressively pursues those responsible for such
abhorrent actions.
Chairman Specter.

At the outset of your testimony,

Judge Gonzales, you have already covered the matter, but I
think it is important to have an unequivocal statement and
really a repeat of an unequivocal statement of the position
of the administration and your personal views.

Do you

approve of torture?
Judge Gonzales.
Chairman Specter.

Absolutely not, Senator.
Do you condemn the interrogators--

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and you already answered this in part--at Abu Ghraib and
Guantanamo, but again, for the record, do you condemn the
interrogators' techniques at Abu Ghraib shown on the widely
publicized photographs?
Judge Gonzales. ' Let me say, Senator, that as a human
being I am sickened and outraged by those photos.

But as

someone who may be head of the Department, I obviously
don't want to provide any kind of legal opinion as to '
whether or not that conduct might be criminal, and
obviously, if anyone is involved in any kind of conduct
that is subject to prosecution, I would not want to do
anything today to prejudge that prosecution and jeopardize
that prosecution.

But obviously, if that conduct falls

within the jurisdiction of the Department of Justice, I
will pursue it aggressively, and you have my word on that.
Chairman Specter.

. . . . 00 you similarly condemn-

any similar interrogation techniques at Guantanamo?
Judge Gonzales.

I am not sure of which specific

techniques you're referring to, Senator, but obviously,
there is a range of conduct that would be in clear
violation of our legal obligations, and'those I would
absolutely condemn, yes, sir.
Senator Leahy.
I would also note that while a1 Qaeda does not have
POW protection, Geneva still applies, as Secretary Colin

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Powell has stated very emphatically.

I do not want to

leave the impression that somehow Geneva does not apply
just because it involves al Qaeda.
I would like to ask you a few questions about the
torture memo that is dated back in August 1st, 2002, signed
by Assistant Attorney General Jay Bybee, and he is now a
Federal Appellate Court Judge.
you.

The memo is addressed to

It was written at your request.

It concludes--this

is actually the memo, this is actually the memo here.

It

is a fairly lengthy memo, but addressed a memorandum from
Alberto Gonzales, Counsel to the

President~

And it says

for an act· to violate the torture statute it must be
equivalent in intensity to the pain accompanying serious
physical injury such as organ failure, impairment of bodily
function, or even death.

In August 2002, did you agree

with that conclusion?
Judge Gonzales.

Senator, in connection with that

opinion, I did my job as the Counsel to the President to
ask the question.
Senator Leahy.

I just want to know, did you agree--I

mean we could spend an hour with that answer, but I am
trying to keep it very simple.

Did you agree with that

interpretation of the torture statute back in August 2002.?
Judge Gonzales.

If I may, sir, let me try to--I'm

going to give you a very quick answer, but I'd like to put

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14

a little bit of context.

Obviously, we were interpreting a

statute that had never been reviewed in the courts, a
statute drafted by Congress.

We were trying the

interpretation of a standard by Congress.

There was

discussion between the White House and the Department of
Justice as well as other agencies about what does this
statute mean?

It was very, very difficult.

today whether or not

I

don't recall

was in agreement with all of the

I

analysis, but I don't have a disagreement with the
conclusions then reached by the Department.
Ultimately, it is the responsibility of the Department
to tell us what the law means, Senator.
Senator Leahy.

Do you agree today that for an act to

violate the torture statute it must be equivalent in
intensity to the pain accompanying serious physical injury
such as organ failure, impairment of bodily function or
even death?
Judge Gonzales.

I

do not, Senator.

That does not

represent the position of the Executive Branch.

As you

know--

senator Leahy.

But it was the position in 2002--

Judge Gonzales.

Senator, what you're asking the

counsel to do is to interject himself and direct the
Department of Justice, who is supposed to be free of any

UNCLASSIFIED
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lS

kind of political influence, in reaching a legal
interpretation of a law passed by Congress.
give my views.

I certainly

There was of course conversation and a give

and take discussion about what does the law mean, but
ultimately, ultimately by statute the Department of Justice
is charged by Congress to provide legal advice on behalf of
the President.

We asked the question.

.

That memo

represented the P?sition of the Executive Branch at the
time it was issued.
senator Leahy.

well, let me then ask you, if you are

going to be Attorney General--and I will accept what you
said--and let us put on the hat if you are going to be
confirmed as Attorney General, the Bybee memo concludes the
President has authority as Commander in Chief to override
domestic and international laws prohibiting torture, and
can immunize from prosecution anyone, anyone, who commits
torture under his act.
immunize them.

Whether legal or not he can

Now, as Attorney General, would you believe

the President has authority to exercise a Commander in
Chief override and immunize acts of torture?
Judge Gonzales.

First of all, Senator, the President

has said we are not going to engage in torture under any
circumstances.

And so you're asking me to answer a

hypothetical that is never going to occur.

This President

has said we're not going to engage in torture under any

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lEi

circumstances, and therefore, that portion of the opinion
wa~

unnecessary and was the reason that we asked that that

portion be withdrawn.
Senator Leahy.

I am trying to think what type of

opinions you might give as Attorney General.

Do you agree

with that conclusion?

Judge Gonzales.

Senator, I do believe there may come

an occasion when the Congress might pass a statute that the
President may view as unconstitutional, and that is a
position and a view not just of this President but many,
many Presidents from both sides of the aisle.

Obviously, a

decision as to whether or not to ignore a statute passed by
Congress is a very, very serious one, and it would be one
that I would spend a great deal of time and attention
before arriving at a conclusion that in fact a President
had the authority under the Constitution to-

Senator Leahy.

Mr. Gonzales, I would almost think

that you had served in the Senate.

You have learned how to

filibuster so well, because I asked a specific

qu~stion.

boes the President have the authority, in your judgment, to
exercise a Commander in Chief override and immunize acts of
torture?
Judge Gonzales.

With all due respect, Senator, the

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17

President has said we're not going to engage in torture.
That is a hypothetical question that would involve an
analysis of a great number of factors, and the President
simply-Senator Leahy.
think that other

How about putting it this way:

wo~ld

do you

leaders would have authority to

authorIze a torture of U.S. citizens if they deemed it
necessary for their national security?
Judge Gonzales.

Senator, I don't know what laws other

world leaders would be bound by.

I think it would--I'm not.

in a position to answer that question.

Senator Leahy.

The only reason I ask this is this

memo was DOJ policy for a couple years, and it sat there
from sometime in 2002, arid then just a couple weeks before
2005, late on a Thursday afternoon, it seems to be somewhat
overridden.

Of course, that may be coincidentally because

your confirmation hearing was coming up.

Do you think if

the Bybee memo had not been leaked to the press, it would
still be--because it had never been shown to Congress even
though we had'asked for it--do you think it would still be
the overriding legal opinion?
Judge Gonzales.

Sir, that I do not know.

I do know

that when it became--it was leaked, we had concerns about
the fact that people assumed that the President was somehow
exercising that authority to engage in torture, and we

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wanted to clarify the record that the President had not
authorized or' condoned torture, nor had directed any
actions or excused any actions under the Commander in Chief
override that might otherwise constitute

~orture,

and that

was the reason that the decision was made to delete that
portion of the opinion.
Senator Leahy.

Do you think there is any connection

whatsoever between the policies which actually you have to
formulate regarding treatment and interrogation of
prisoners, policies that were sent out to the Department of
Defense and elsewhere, and the widespread abuses that have
occurred?

Do you acknowledge any accountability for such

things, any connection?
JUdge Gonzales.

Senator, as I said in

my

remarks, I

categorically condemn the conduct that we see reflected in
these pictures at Abu Ghraib.

I would refer you to the

eight completed investigations of what happened at Abu
Ghraib and in Guantanamo, and there are still three
ongoing.

I'm talking about the Taguba report, the Fay-

Jones-Kern Report, the Schlesinger report, the Navy IG, the
Army IG, Jacoby, Ryder, Miller, all of these reports.

And

if you listened to the press briefings given in connection
with the roll-out of these reports, they do conclude that
with respect to the conduct not reflected in the photos,
not the conduct that we find the most offensive, but

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19

conduct related to pure interrogations. that there was some
confusion-Senator Leahy.

The same reports you talk about say

the Department of Defense relied on the memo.

It is quoted

extensively int DOD Working Group report on interrogations.
That report has never been repudiated.

So apparently they

did rely on the memo t and when we find out about the abuses
we never find out from the administration, we find out'
because the press reports it.

Is there any accountability

here anywhere?
You know t as I mentioned ear~ier, my son was in the
military.

He was held to very, very strict standards.

He

is trained for combat, held to very, very strict standards.
The vast majority of the men and wotnen in the military are
held to those same strict standards.

! am just trying to

find out where the accountability is 'for this

~errible

blot

that you and I both agree is a terrible blot on the United
States.
Judge Gonzales.

I believe that is a very good

question, Senator, and that is why we have these eight
completed investigations and these three pending
investigations, while we've had four hearings involving the
'Secretary of Defense and you've had 18 hearings involving
the Deputy Secretary, Under Secretary of Defense, you've
had over 40 briefings with the Congress, because we care

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20

very much about finding out what happened and holding
people accountable.

Unlike other countries that simply

talk about Geneva, if there is an allegation that wetve
done something wrong, we investigate it.

We're very

serious about our commitments, our legal

obligati~ns

in

Iraq, and if people have done things that they shouldn't
have done in violation of our legal obligations, they are
going to be held accountable.

senator Hatch.
I think today's hearing is certainly going to dwell to
a large degree on ongoing public policy on that debate on
how a democratic society with a long tradition of
protecting civil liberties should conduct itself when it
finds itself threatened and attacked by terrorist groups
and individuals who will stop at literally nothing to
destroy our way of life, and who do not represent a
particular country, do not wear uniforms, do not abide by
international principles, and who really are rogue in every
sense of that term.

It is my hope that in addition to

providing an adequate record about Judge Gonzales'
qualifications to serve as Attorney General, one of the
outcomes.of today's hearing will be to educate the
Committee and the public about the facts of what actions
were taken and were not taken with respect to the treatment

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21

and interrogations of various classes of individuals who
have been detained and taken into custody by the United
States as part of our response to the horrific 9/11
terrorist attacks on America.

Senator Hatch. Let me just ask some questions by
reviewing some of the key points with respect to the
treatment of detainees.

Like most Americans, I was

appalled by the abuses at Abu Ghraib.

Some have stated

that the President's February 7th, 2002 memorandum is
somehow responsible for the abuses at Abu Ghraib, at that
prison facility in Iraq.

But is it not true that the

February 7th, 2002 memorandum actually makes clear that the
Geneva Conventions do apply in both Afghanistan and Iraq?
Judge Gonzales.

Senator, I don't recall that "the memo

actually talked about Iraq.

The President--there was a

decision by the President that Geneva would apply with
respect to our conflict with the Taliban.

However, and I

believe there's little disagreement about this as a legal
matter, because of the way the Taliban have fought against
the United States, that they forfeited their right to enjoy
prisoner of war legal protections.

There was never any

question about whether Geneva would apply in Iraq.
was no decision for the President to make.

'There

Iraq was a

signatory to the Geneva Convention, so there was no

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22

decision for the President to make.

There was no decision

by the Department of Justice as to what kind of techniques
-should be approved with respect to interrogations in Iraq,
because the understanding throughout the administration was
the Geneva Conventions apply in Iraq.
Senator Hatch.

Is it not also true that the

President's February 7th, 2002 memorandum, which is
entitled "Humane Treatment of al Qaeda and Taliban
Detainees," also requires American forces to treat all
detainees humanely, regardless of whether the Geneva
Conventions apply; is that not true?
Judge Gonzales.

That is correct.

The President gave

a directive to the military that despite the fact that
Geneva may not apply with respect to the conflict and the
war on terrorism, it is that everyone should be treated
humanely.
Senator Hatch.
Judge Gonzales.
Senator Hatch.

That was more than two years ago.
That is correct.
Am

r correct in my understanding that

at no time did the President authorize the use of torture
against detainees regardless of any of the legal memoranda
produced by various entities of the U.S. Government,
including the August 2002 Department of Justice memo, the
so-called Bybee memo?
Judge Gonzales.

Senator, the position of the

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23

President on torture is very, very clear, and there is a
clear record of this.

He does not believe in torture,

condone torture, has never ordered torture, and anyone
engaged in conduct that constitutes torture is going to be
held accountable.
senator Hatch.

And that has never been a problem with

regard to the President or you as his adviser?
Judge Gonzales.
Senator Hatch.

Absolutely not, senator.
As Counsel to the President of the

United States, is it your responsibility to approve
opinions issued by the Department of Justice?
Judge Gonzales .. No, sir, I don't believe it is

my

responsibility, because it really would politicize the work
of the career professionals at the Department of Justice.
I know that some have been critical of my actions in not
trying to force the opinion a certain way, people that are
concerned about certain sections of that opinion, but we
have to be very, very careful here.

When you use the White

House as a shield, it can also be used as a sword.

It can

be used as a sword to force an opinion, to reach·an outcome
that would be politically advantageous to the White House,
and we don't want that to happen.

And so I take my

responsibilities very seriously in respecting the role of
the Department of Justice given to the Department by
Congress to decide for the Executive Branch what the law

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requires.
Senator Hatch.

In fact, the Bybee memo was actually

withdrawn by the Department of Justice in June of 2004; am
I right on that?
Judge Gonzales.
senator Hatch.

The opinion was withdrawn, yes, sir.
The.Bybee memo was issued, I.believe,

six months after the President issued his February 7th,
2002 memo requiring all detainees to be treated humanely;
is that correct?
Judge Gonzales.

That is correct.

It

h~s

always been

the case that everyone should be--that the military would
treat detainees humanely, consistent with the President's
February order.
senator Hatch.

So that memo did not overrule what the

President's 2002 memo actually said?
Judge Gonzales.

Senator Kennedy.

Of course not.

I sit on the Judiciary Committee and

also on the Armed Services Committee, and I was a member of
the Armed Services Committee in the time that all America
saw the Abu Ghraib photos.

And just subsequent to that,

we, in the Armed Services Committee, had General Taguba,
who did the Taguba report that was leaked, and we read the
report before a copy was actually provided to the Congress.
And immediately the administration claimed during the

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25

hearings that we had with General Taguba, that the Abu
Ghraib was just a few bad apples, there was no higher level
of support or encouragement for the mistreatment of
detainees.
Then we learned that the Defense Department's Working
Group report of April 2003 had provided the broad legal
support for the harsh

~nterrogation

tactics, and it

dramatically narrowed the definition of torture, and it
recognized the novel··defenses for those who committed the
torture.

Then we learned that the legal basis for the

Working Group report had been provided by the Justice
Department in the Bybee memo.
Now, that is what has come up from the administration.
That is what has come up, including the President of the
United States.

This Committee, the Armed Services

Committee has asked for these memos.

We have depended upon

what has been leaked, what has been put on the Internet,
and what has been obtained in the Freedom of Information
and by various attorneys.

So there is a certain.kind of

sense by many of us here that the

administration-~and you

are the point person on the administration--has not been
forthcoming on the whole issues of torture, which not just
committed at Abu Ghraib, but is happening today.
The Bybee torture memoranda, written at your request-and I would be interested in your reactions to this--made

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26

abuse of interrogation easier.

It sharply narrowed the

definition of torture and recognized it as new defense for
officials who commit torture.

For two years, for two

years, from August 2002 to June 2004 you never repudiated
it.

That is the record, you never repuqiated it.

It was

written by the CIA's bidding, and you can clarify that if
that is false.

We can assume it was probably provided to

the CIA as written.

rts principles were adopted in the

Defense

Working Group report.

Departmen~'s

I have it right

here, and I will read the identical provisions in the Bybee
report that were put in the Defense Department Working
Group report that has been the document which has been made
available to the Defense Department about how they ought to
view torture.

This person assumes that the Bybee report

has already gone to the CIA in his complacency.
Now, according to the Defense Department's own
investigation--you referred to senator Leahy earlier--as to
the Defense Department, the Working Group report was used

,

to justify--this is DOD--was used to justify the many
abuses that occurred in Afghanistan and Guantanamo.

And

according to Fay and Schlesinger, who testified in the
Armed Services Committee, the abuse of policies and
practice in Afghanistan and Guantanamo migrated to Iraq.
You have never repudiated the Bybee assertion that
presidential power overrides all the prohibitions· against

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27

torture enacted and ratified.
act humanely was hollow.

The President's directive to

It was vague.

It allowed for

military necessity exception and did not even apply to the
CIA, did not even apply to the CIA.
reported.

Abuses are still being

And you were warned by Secretary Powell and

other top military leaders that ignoring our longstanding
traditions and rules would lead to abuse and undermine
military culture, and that is what has happened .

.

I am going to get to how the Bybee amendment was first
written.

As I understand, there is the report in the

Washington Post that the CIA asked you for a legal opinion
about how much pain and suffering an intelligence officer
could inflict on a detainee without violating the '94 antitorture statute, which I might point out was strongly
supported by Ronald Reagan and Bush I, and passed the
Foreign Relations Committee unanimously.

Republicans have

been as concerned about torture as Democrats, and we will
get into the various statutes that have been passed in
recent times which would. indicate that.
Now, the Post article states you chaired several
meetings at which various interrogation techniques were
discussed.

These techniques included the threat of live

burial and water-boarding, whereby the detainee is strapped
to a board, forcibly pushed under water,' wrapped in a wet
towel and made to believe he might drown.

The article

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28

states that you raised no objections, and without
consulting military and State Department experts.
were not consulted.
meetings.

They

They were not invited to important

They mi$ht have been important to some, but we

know what Secretary Taft has said about his exclusion from
these.

Experts in laws of torture and war prove the

resulting memo gave CIA interrogators the legal blessings
they sought.
Now, was it the CIA that asked you?
Judge Gonzales.
recollection.

Sir; I don't have specific

I read the same article.

whether or not it was the CIA.

I don't know

·What I can say is that.

after this war began, against this new kind of threat, this
new kind of enemy, we realized that there was a premium on
receiving information.
a war about information.
defeat the enemy.

In many ways this war on terror

~s

If we have information we can

We had captured some really bad people

who we were concerned had information that might prevent
the loss of American lives in the future.

It .was important

to receive that information, and people at the agencies
wanted to be sure that they would not do anything that
would violate our legal obligations, and so they did the
right thing.
conduct?

They asked questions.

What is lawful

Because we don't want to do anything that

violates the law.

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Senator Kennedy.

You asked, at their request--if this

is incorrect, then correct me.

I am not attempting, or if

there are provisions in that comment here that are
inaccurate, I want to be corrected.
this.

I

~ant

to be fair on

But it is my understanding, certainly was in the

report, that the CIA came to you t asked for the
clarification.

You went to the OLC.

Now, I want to ask

you, did you ever talk to any members of the OLC while they
were drafting the memoranda?

Did you ever suggest to them

that they ought to lean forward on this issue about
supporting the extreme uses of torture, as reported in the
newspaper?
Judge Gonzales.

Sir, I don't ever recall using the

term "leaning forward" in terms of stretching what the law
is.

Senator Kennedy.

You talked to the OLC during the

drafting of it?
Judge Gonzales.

There is always discussions--not

always'discussions, but there often is discussions between
the Department of Justice and OLe and the Counsel's office
regarding legal issues.
appropriate.

I think that's perfectly

This is an issue that the White House cared

very much about to ensure that the agencies were not
engaged in conduct-Senator Kennedy.

What were you urging them?

What

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were you urging?

They are, as I

interpret the law.

under~tand,

charged to

We have the series of six or seven

different laws and conventions on torture and on the rest
of it.

They are charged to develop and say what the

statute is.

Now, what did you believe your role was in

talking with the OLe and recommending-Judge Gonzales.

To understand their views about the

interpretation-~

Senator Kennedy.
document?

Weren't you going to get the

Weren't you going to get their document?

Why

did you have to talk to them during the time of the
drafting?

It suggests in here that you were urging them to

go as far as they possibly could.
newspaper reported.

That is what the

Your testimony is that you did talk to

them but you cannot remember what you told them.
Judge Gonzales.

Sir, I'm sure there was discussion

about the analysis about a very tough statute, a new
statute, as I've said repeatedly, that had never been
interpreted by our courts, and we wanted to make sure that
we got it right.

So we were engaged in interpreting a very

tough statute, and I think it is perfectly reasonable and
customary for lawyers at the Department of Justice to talk
with lawyers at the White House.

Again, it was not my role

to direct that we should use certain kinds of methods of
receiving information from terrorists.

That was a decision

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made by the operational agencies, and they said we need to
try to get this information.

what is lawful?

And we look

to the Department of Justice to tell us what woulQ, in
fact, be within the law.
Senator Kennedy.

What I would like to do

is include in the record the Bybee memoranda and the
Defense Department working group report, the analysis where
they use virtually word by word the Bybee memoranda in the
key aspects of the working group report, which was the
basic document which has been the guide to our military
about how they should treat prisoners.

Senator Biden.

my

good friend from Texas,

he held up three reports that did not say what he said they
sald.

The three reports he held up that I am aware of,

maybe four, asserting essentially that they confirmed the
judgment that you made in your recommendations to the
President of the United States of America relating to
torture and·other

mat~ers.

Now, the reason why it is appropriate to ask you about
Abu Ghraib is not to go back and rehash Abu Ghraib, but it
is relevant as to whether or not what occurred at Abu
Ghraib came as a consequence of the judgments made and
embraced by the President that were then essentially sent
out to the field.

The Schlesinger report that was cited,

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it finds, ItLieutenant General Sanchez signed a memo
authorizing a dozen interrogation techniques beyond
standard Army practice, including five beyond those applied
at Guantanamo.

tI

He did so "using reasoning from the

President's memo of FebruarY 7, 2002.

11

So I say to my

friend from Texas, that is why this is relevant.
The very reports cited say that--and I will not go
through them all.

The Red Cross report, the Red Cross did

not sign off and say that, you know, the conduct or the
recommendations or the memoranda were, in fact,
appropriate .
. You know, there is that play we have all seen,
IIA Man for All Seasons,

II

and there is an exchange in there

where sir Thomas More is engaging Roper, and Roper says--a
v

young man came to seek a job, and he said, "Arrest him.
means you harm. It

And he said, "He

h~9

Roper said, IIBut he means you harm. II

broken no law. II

He
And

And if my

recollection is correct, you have Thomas More turning to
Roper and saying, "This country is planted thick· with laws,
coast to coast, man's laws not God's, and if you cut them
down, Roper, as you would, what will you do when the devil
turns 'round on you?

Yes, I give the devil benefit of law

for my own safety's sake. II
That is the fundamental principle we debate among
ourselves here, no matter how you cut it.

And that is what

UNCLASSIFIED
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33

the debate that took place on these torture memos between
Taft and Yoo.

I have a copy of the report, the memo sent

by the secretary of State to you all on February 7th, which
I am not going to make public.

But

in

that memo, he takes

significant issue with the recommendations coming out of
your shop, and Mr. Yoo's.
talk.

And he' ends by saying,

'~Let's

We need to talk. 1I ,And he goes into great detail, as

other reports do.

Powell contemporaneously on the 7th says

basically--and I have the report right here.

He says

basically" look, you go· forward with the line of reasoning
you guys are using, and you are going to put my troops, my
former troops, in jeopardy.

This is about the safety and

security of American forces.

And he says in here, "What

you are ,doing is putting 'that in jeopardy."

You have the

former head of JAG, the top lawyer in the United States
military, saying, Hey, man, this is way beyond the
interrogation techniques you are signing off, way beyond
what the manual, the military manual for guidance of how to
deal with prisoners says.
And so the point I am trying to make here--and I will
come back with questions, if I have any time--well, I do
not have any time.

This is important stuff because there

was a fundamental disagreement within the administration.
And based on the record, it seems to me, although it may
not be totally--it may not be dispositive, your judgment

UNCLASSIFIED
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34

was not as good as the judgment of the secretary of State.
Your judgment

not as good or as sound as the chief

w~s

lawyer from the JAG.

Your judgment was not as sound.

the question I want to debate about is the judgment.

And
How

did you arrive at this, different than these serious people
like you who thought what you

~ere

doing, recommending to

the President in the various memos, was jeopardizing the
security of

~merican

troops?

And that is what I want to

get back to, but I want to explain to the public and
anybody listening.

This is not about your integrity.

is not a witch hunt.

This is about your jUdgment.

This

That is

all we are trying to do.
And so when

get to ask my questions,

I

I

hope you will

be candid about it because--not that it is relevant--I like
you.

I

like you.

You are the real deal.

Chairman Specter.

Senator Biden, your red light is

on.
Senator Biden.

My red light is on.

[Laughter. ]
Senator Biden.

Thank you.

Chairman Specter.

Judge Gonzales, while Senator Biden
I

is awaiting round two to formulate a question-[Laughter. ]
Chairman Specter.

--I think you ought to be given an

opportunity to respond to Senator Biden's observations and

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implicit, perhaps, two dozen questions.

So the floor is

yours.
Judge "Gonzales.

senator Biden, when you are referring

to the powell memo, I'm not sure which memo you're
referring to.

And I presume you're referring--

Senator Biden.

Let me give you a copy of it.

For the

record, Mr. Chairman, it is dated January 11, 2002, to John
Yoo from William Taft, Legal Adviser, and there is
overwhelming evidence that you saw it.

There was

discussion about it, and that is what I am referring to.
Judge Gonzales.

There was a great deal of debate

within the administration, as that memo partly reflects,
about what was legally required and perhaps a policy
judgment to be made by the President.

And the fact that

there was disagreement about something so significant I
think should not be surprising to anyone.
Senator Biden.
Judge Gonzales.

Of course not.
Of course not.

And reasonable people

can differ.
In the

~nd.

it is the Department of Justice who is

charged by statute to provide the definitive legal advice
on behalf of the executive branch to the President of the
United States.

What I can tell you--

Senator Biden.
matter.

With due respect, that does not

I do not care about their judgment.

I am looking

UNCLASSIFIED
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36

at yours.
Judge Gonzales.

Sir, of course, I convey to the

President my own views about what the law requires, often
informed by what the Department of Justice says the law is,
because, again, by statute you have conferred upon them
that responsibility.
I can tell you that with respect to. the decision the
President 'ultimately made, everyone involved, including the
Secretary of State, including the chairman of the Joint
Chiefs, all of the principals who had equities in the
decision about the application of Geneva

~ad

an opportunity

to present their views and their concerns directly to the
President of the United States, and he made a decision.
Chairman Specter.

Thank you, Judge Gonzales.

Senator Sessions.

Now, the Department of

Justice under the Judiciary Act of 1789 is empowered by
statute to issue opinions on various questions of law.
Judge Gonzales.
Senator Sessions.

That is correct, Senator.
And they have an Office of Legal

Counsel.
Judge Gonzales.
Senator Sessions.

Yes, sir.
That really specializes in that on

behalf of the Attorney General.
Judge Gonzales.

The Office of Legal Counsel has been

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delegated by regulation the authority of the Attorney
General to provide legal advice to the executive branch.
senator Sessions.

Now, the President of the United

States is executing a war on terrorism after 3,000 of our
people have been killed by what can only be described as
unlawful combatants .. And it is a difficult, tough time,
and you were concerned and the President was deeply
concerned that there may be other groups of unlawful
combatants, saboteurs that were in the United States
planning further attacks to kill more American citizens.

And that is the way it was, isn't it?
Judge Gonzales.

The President was very concerned

about protecting this country from future attacks and doing
everything that we could do within the law.to protect this
country from future attacks.·
Senator Sessions.

And in the course of all of that.

agencies that we had out there, their lives at risk--the
military and other agencies--to serve our people, to
protect our people, asked the President what the law was
with regard to their rights and duties and responsibilities
of interrogating people they have apprehended.

That came

to your attention, I guess, as Counsel to the President.
Judge Gonzales.

My understanding is that people in

the agencies were very concerned about--they understood
that they had a direction from the President to do what

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38

they could to protect'this country within the limits of the
law, and they wanted to clearly understand what those
limits were.
Senator Sessions.

And so you did not undertake to

give them an off-the-cuff opinion, as Senator Biden
suggests you ought to be able to do today on any question
he would desire to ask you, I suppose.
Judge Gonzales.

I hope not, Senator.

I have been

criticized, quite frankly, for going too much to the
Department of Justice and making sure that the legal advice
we give to the President is the right advice.
important to me.

That is very

I understand that the Office of Legal

Counsel, they have the expertise, the institutional
history, the institutional knowledge about what the law' is.
And so I have a great deal of respect for that office and
rely upon that office in the advice that I give to the
President of the United States.
Senator Sessions.

And it is staffed with career

people who have dealt with these issues for many, many
years, certainly, and when this issue arose, I think you
did the absolutely proper thing.

You asked the entity of

the United States Government that is charged with the
responsibility of making those opinions, you asked them to
render an opinion.
Judge Gonzales.

Absolutely, Senator.

We want to get

UNCLASSIFIED
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it right.

It also provides, quite candidly, as the lawyer

for the President,

protectio~

for the President.

We want

to make sure the President does not authorize or somehow
suggest conduct that is unlpwful.

And so I felt that I had

an obligation as a prudent lawyer to check with the
professionals at the Department of Justice.
Senator Sessions.

Well, I think you did, and I think

that was the first step.
Now, it has been suggested that this was your opinion,
that it is your opinion, you asked for this'opinion, as if
you asked for them to say precisely what they said.

You

asked for them to give an opinion on the legal question
involved.
wanted.

You did not ask them to give an opinion that you
Is that correct?

Judge Gonzales.

As I said in my earlier testimony,

there was give-and-take.

There were discussions about the

opinion, but ultimately the opinion represents the position
of the Department of Justice.

And as' such it's a position

that I supported at the time.
Senator Sessions.

And there is no doubt in anyone's

mind, the Office of Legal counselor the Attorney General,
that that opinion was one that they worked on, that

the~

debated internally, and when they put their name on it, it
was their opinion.

Isn't that correct?

Judge Gonzales.

It was the work of the Department of

.1

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40

Justice and, again, reflected the position of the executive·
branch.
Senator Sessions.

The official position.

Now, the

President of the United States--well, let me follow this
up:

Having been an Attorney General and been involved in

the Department of Justice as a part of the executive
branch, as you were part of the executive branch, and
lawyers in the Department of Justice have to be very
careful, do they not, when they issue an opinion that they
are not circumscribing legitimate constitutional powers
that belong to the executive branch.

And they are going to

be careful not to render an opinion that would remove
constitutional powers that the President legitimately has.
Judge Gonzales.

That is correct.

But my view about

the Office of Legal Counsel is to call them as they see
them, I mean, interpret the law and give us their best
judgment about what the law is.
Senator Sessions.

Well, I agree with that.

But once

this opinion came in from the Office of Legal Counsel and
the President and you,

I

am sure, reviewed it, he issued

some orders, it seemed to me, that were far less expansive
than the authority the Legal Counsel said he had.
Judge Gonzales.
might be referring to.

Well, I am not sure which orders you
Let me emphasize for the record

that the President was not involved personally in deciding

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41

which kinds of methods could be used to question terrorists
who might have information that might save American lives.
The President was not involved personally in connection
with that.
What he

expec~ed

and what he deserved--and I think

what he got--was people within the administration trying to
understand what the law was and conforming their conduct to
legal requirements.
Senator Sessions.

And the opinion of the Department

of Justice Legal Counsel really isn't policy, is it?

It is

just the opinion of the Office of Legal Counsel.
Judge Gonzales.

At the end of the day, again, as I

described to you, I expect the Office of Legal Counsel to
give me their best judgment, their best interpretation of
what the law is.
Senator Sessions.

And the President sets the policy

based on his judgment after having received that advice?
Judge Gonzales.
Senator Sessions.

That is correct.
Now, with regard to al Qaeda, I do

not think there is anyone on this Committee, on either side
of the aisle, that would say that al Qaeda represents a
lawful combatant that is, therefore, entitled to the full
protections of the Geneva Conventions, would they?

I mean,

that is pretty well undisputed that they are not
representatives of an organized state and that .they do not

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carry arms openly and that they do not--and they clearly do
not follow the laws

~f

warfare in

th~

surreptitious methods

by which they bomb innocent civilians?
JUdge Gonzales.

Senator, that is correct.

Biden spoke earlier about my judgment.

Senator

My judgment was

based on just reading the words of the Geneva Conventions
is that it would not apply to al Qaeda.

They weren't a

signatory to the Convention and, therefore, it didn't seem
to me that they could be--our conflict with al Qaeda could
be covered.

But obviously--

Senator Sessions.
Judge Gonzales.

And that would-The decision

by~-if

I might just

interrupt you, the decision by the President as to the

f~ct

that Geneva would not apply was not just based upon my
judgment.

That was the considered judgment of the

Department of Justice.
Senator Sessions.

And it was clearly correct and

clearly consistent with Ex Parte Quirin, the Supreme Court
case during World War II.
Judge Gonzales.
Senator Sessions.

That is .correct, sir.
President Roosevelt captured some

German saboteurs inside the United States and had a trial
or a hearing in the Department of Justice or the FBI
building and executed them.

I do not think the public even .

knew about it until after they had been executed.

So an

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unlawful combatant is a different matter.
Now, in Iraq, you have said the Geneva Conventions
would apply, basically, as I understand it.

Senator Sessions.

And truth be known, a number of

those people involved in Iraq really should not qualify,
but the President has really gone further than the law
requires, it seems to me, in granting them privileges that
he did not necessarily have to do

a~

a matter of effecting

his policy of humane treatment.
Judge Gonzales. . Senator, I think the administration-it is more accurate to say that the administration policy
is and always has been that in our conflict with Iraq,
Geneva does apply and we are bound by the requirements of
the Geneva Convention.

Iraq is a signatory to the Geneva

Conventions, and there were never any question, any debate
that Il m aware of as to whether or not Geneva would apply
with respect to our conflict in Iraq.
Senator Sessions.

But the Zarqawi people do not

strictly qualify, in my' opinion, as a lawful combatant.

Senator Kohl.

Judge Gonzales, the 9/11 Commission's

report recognized that winning the hearts and the minds of
the Arab world is vital to our success in the war on
terror.

Photographs that have come out of Abu Ghraib have

UNCLASSIFIED
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_.. __

._.

__

-

'"

..-., . . -

_.. __..-

.

L0756

",

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44

undoubtedly hurt those efforts and contributed to a rising
tide of anti-Americanism in that part of the world.
Secretary of State Colin Powell and others raised concerns
about the decision not to apply the Geneva Conventions,
some even suggesting that it could well undermine U.S.
military culture.

And we now know that those concerns in

large part or significantly were well founded.
When drafting your recommendations for the President
on the application of Geneva Conventions, did you ever
consider the impact that t~is could have on winning the
hearts and minds of the Arab world in the war on terror?
And in light of what has happened, if you could make the
recommendation allover again, would you do something
different than what you did?
Judge Gonzales.

Senator, that is a very good question

and thank you for asking that.

I think the decision not to

apply Geneva in our conflict with al Qaeda" was absolutely
the right decision for a variety of reasons.

First of all,

it really would be a dishonor to the Geneva Convention.

would honor and reward bad conduct.

It

It would actually make

it more difficult, in my judgment, for our troops to win in
our conflict against al Qaeda.

It would limit our

to solicit information from detainees_

a~ility

It would reqUire us

to keep detainees housed together where they could share
information, they could coordinate their stories, they

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could plan attacks against guards.

It would mean that they

would enjoy combat immunity from prosecutions of certain
war crimes.

And so for a variety of reasons, it makes

absolutely no sense .
. In addition to that, Senator, it is contrary to
decades of executive branch position.

There was an attempt

in 1977, Protocol 1, to provide prisoner of war legal
status to terrorists.

Now, that protocol included some

wonderful humanitarian provisions dealing with extraditions
and hostages and things of that nature.

But the Uriited

States, and many other countries, never ratified that
protocol, and the reason is because the protocol arguably
provided prisoner of war legal status to terrorists.

And

so it has been the consistent executive branch position
since then that we are not going to do that because it
hurts our soldiers.
to do so.

It is contrary to the· spirit of Geneva

And so I do believe the decision by the

President was absolutely the right thing to do.
Now, that's not to say that we don't--that we are not-that we don't operate without legal limitations and that
we donlt treat people consistent with our values as
Americans.

The President was very clear in providing

directives that even though Geneva would not apply. as a
matter of law, we would treat detainees humanely and
subject to military necessity and as appropriate,

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consistent with the principles of Geneva.
In my judgment, there has been a very strong attempt
to do so at Guantanamo.

There has been never any question,

as I said in response to earlier questions, about whether
or not Geneva should apply in Iraq.

That's always been the

case.
Do I regret the abuses at Abu Ghraib?
condemn them.

Do I believe that they may

Absolutely.
ha~e

I

hurt us in

winning the hearts and minds of Muslims around the world?
Yes.

And I do regret 'that.

But one of the ways we address

that is to show the world that we do not just talk about
Geneva, we enforce Geneva.

And so as I said in response to

an earlier question, that's why we're doing these
investigations.
martials.

That's why you have these military court

That's why you have these administrative

penalties imposed upon those responsible, because we want
to find out what happened so it doesn't happen again.

And

if someone has done something wrong, they're going to be
held accountable.
Senator Kohl.

Well, let me ask you, do you think that

what happened at Abu Ghraib was just spontaneous, or do you
think that those relatively low-level perpetrators got some
sort of a sign from people above them who got signs from
people above them that these things would be tolerated?
What is your opinion?

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Judge Gonzales.

Well, we don't know for sure.

First

of all, I'm not--I haven't conducted an independent
investigation.

We know eight have been completed.

are at least three ongoing.

There

We know that the Congress is

conducting--you know, through hearings and briefings,
they're looking at this as well.
As I listened to the briefings of Schlesinger and Faye
and Kearns and people like that about their findings and
their reports, they divide up the abuses into two
categories.
sexual abuse.
catego~

are

One category is the violent physical abuse and
That is the first category.
abuse~

And the second

related to interrogations and gathering

intelligence, stem from confusion about what the policies
and the strictures were.
/

As to the first category, as I read the briefings,
they all seem to conclude that what you see in the.
pictures, the most horrific of the abuses that we see, the
ones that we all, you know, condemn and abhor, those do not
relate to confusion about policies.

Those were not related

to interrogations or confusion about how much you could-what you could do in terms of gathering intelligence.
was simply people who were

~orally

This

bankrupt trying to--

having fun, and I condemn that.
As to the second category, the reports seem to
indicate that there was migration.

There was migration

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between what happened in Guantanamo.

You had people and

standard operating policies that migrated from Guantanamo
to Afghanistan and then into Iraq.

And so there was some

confusion about what were the appropriate standards to use
in connection with interrogations and in connection with
intelligence gathering.
However, as I read the briefings and the reports, they
seem to indicate that the reason that the abuses occurred
was not because of some decision back in 2001 or 2002, but
because of the fact that you had a prison that was
outmanned, under-resourced, and focused on fighting an
insurgency, and they didn't pay enough attention to
detainee operations.

There wasn't adequate supervision.

There wasn't adequate training about what the limits were
with respect to interrogation.

That's how I read the

findings and conclusions of some of these reports.
But it's not done yet.
investigations.

Again, there are still ongoing

And so weIll have to wait and see--

Senator Kohl.

That would seem to indicate, although

we will see what happens, that people above the level of
those who committed the atrocities are likely--and we will
see what happens--to escape being held accountable.
will see what happens.

We

I know you and I cannot know that

right now, but I think I am getting a drift from you that
those people who committed the atrocities were acting on

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their own.

There really wasn't anybody at a higher level

who understood and approved or at least condoned, and the
accountability should be-held at that level.
I think the American people, by and large, Judge
Gonzales, believe that accountability should at least be
focused on people above the level of those at that level
who committed the .atrocities.

What do you think, Judge

Gonzales?
Judge Gonzales.
accountable.

I believe that people should be held

I do think--and perhaps I misspoke in

describing how I reviewed the briefings and how I read the
reports.

The reports seem to indicate that there was a

failure, there was a failure of discipline amongst the
supervisors of the guards there at Abu Ghraib, and also
they found that there was a failure in training and
oversight at multiple layers of Command Joint Task Force 7.
And so I think there was clearly a failure well above the
actions of the individuals who actually were in the prison.
At least that's what the reports seem to indicate, as I
review them.
Senator Kohl.

Finally, Attorney General Ashcroft said

that he does not really believe in torture in the sense
that it does not produce anything of value.
that on the record.
Judge Gonzales.

He has said

00 you agree with that?

Sir, I don't have a way of reaching a

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conclusion on that.

All I know is that the President has

said we are not going to torture under any circumstances.
Senator Kohl.

Well, do you believe that the policy is

a correct one, that we never should have had any torture at
Guantanamo or at Abu Ghraib among other reasons because it
really does not produce anything of value?
Judge Gonzales.

Sir, the United States has never had

a policy of torture.

Senator Graham.
Monday morning quarterbacking is part of a democracy,
so just bear with us because what we are trying to do is
figure out how to correct mistakes.
ardent supporter of the war.

Now, I am a very

I really do

believ~

if you

are going to win the war on terror, you take dictatorships
like Saddam Hussein, who was part of the problem, and you
give people who lived under his oppression a chance to be
free.

That is not easy, and I believe we made mistakes

along the way_
But one of the reasons that we are talking about this
has a lot to do with your

conf~rmation,

but really not.

I

think we have dramatically undermined the war effort by
getting on a slipper slope in terms of playing cute with
the law because it has come back to bite us.
has hurt us in many ways.

Abu Ghraib

I travel throughout the world

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like the rest of the Members of the Senate, and I,can tell
you it is a club that our enemies use, and we need to take
that club out of their hands.
Guantanamo Bay, the way it has been run, has hurt the
war effort.

So if we are ,going to win this war, Judge

Gonzales, we need.friends and we need to recapture the
moral high ground.

And my questions are along that line.

To those who think that you can't win a war with the
Geneva Convention applying, I have another role in life, I
am a judge advocate.
Force.

I am a reserve judge, in the Air

I have never been in combat.

that probably wanted to kill, but
at.

I

I had some clients
have never been shot

aut part of my job for the last 20 years, along with

other jUdge advocates, is to advise commanders about the
law of armed conflict.

And I have never had a more willing

group of people to listen to the law, because every Air
Force wing commander lives in fear of an air crew being
shot down and falling into enemy hands_

And we instill in

our people as much as possible that you are to follow the
law of armed conflict because that is what your Nation
stands for, that is what you are fighting for, and you are
to follow it because it is there to protect you.
Now, to Secretary Powell, he took a position that I
disagreed with legally but in hindsight might have been
right.

I agree with yOUr Judge Gonzales, that to give

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Geneva Convention protection to al Qaeda and other people
like al Qaeda would in the long run undermine the purpose
of the Geneva Convention.

You would be giving a status in

the law to people who do not deserve it, which would erode
the Convention.
But Secretary Powell had another role in life, too.
He was a four-star general and Chairman of the Joint
Chiefs.

And to those who think that the Geneva Convention

is a nicety or that taking torture off the table is naive
and a sign of weakness, my answer to them is the following:
that Secretary Powell has been in combat, and I think you
weaken yourself as a nation when you try to play cute and
become more like your enemy instead of like who you want to
be.

So I want to pUb~icly say that the lawyers in the

Secretary of State's office, while I may disagree with them
and while I may disagree with Secretary Powell, were
advocating the best sense of who we are as people.
Now, having said that, the Department of Justice memo
that we are all talking about now was, in my opinion, Judge
Gonzales, not a little bit wrong but entirely wrong in its
focus because it excluded another body of law called the
Uniform Code of Military Justice.

And, Mr. Chairman, I

have asked since October for memos from the working group
by Judge Advocate General representatives that commented on
this Department of Justice policy, and I have yet to get

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those memos.
.'

I have read those memos.

classified, for some bizarre reason.
speaking~

They are
But, generally

those memos talk about that if you go down the

road suggested, you are making a U-turn as a nation, that
you are going to lose the moral high ground, but more
importantly, that some of the techniques and legal
reasoning being employed into what torture is, which is an
honest thing to talk about--it is okay to ask for legal
advice.

You should ask for legal advice.

But this legal

memo I think put our troops ·in jeopardy because the Uni fOrm
Code of Military Justice specifically makes it a crime for
a member of our uniformed forces to abuse a detainee.

It

is a specific article of the Uniform Code of Military
Justice for a purpose because we want to show our troops,
not just in words but in deeds, that you have 1an obligation
to follow the law.
And I would like for you to comment, if you could, and

I would like you to reject, if you would, the reasoning in
that memo when it came time to give a tortious view of
torture.

will you be willing to do that here today?

Judge Gonzales.
in your statements.

Senator, there is a lot to respond to
I would respectfully disagree with

your statement that we're becoming more like our enemy.
are nothing like our enemy, Senator.

We

While we are

struggling mightily to try to find out what happened at Abu

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Ghraib, they are beheading people like Danny Pearl and Nick
Berg.

We are nothing like our enemy, Senator.
Senator Graham.

Can I suggest to you that I did not

say that we are like our enemy, that the worst thing we did
when you compare it to Saddam Hussein was a good day there.
But we are not like who we want to be and who we have been.
And that is the point I am'trying

to make, that when you

start looking at torture statutes and you look at ways
around the spirit of the law, you are losing the moral high
ground.

And that was the counsel from the Secretary of

State's office, that once ypu start down this road, it is
very hard to come back.

So I do believe we have lost our

way, and,my challenge to you as a leader of this Nation is
to help us find our way without giving up our obligation
and right to fight our enemy.
And the second question--and then I will shut up--is
Guantanamo Bay.

The Supreme Court has rejected this

administration's legal view of Guantanamo Bay.

I believe

it is a legal chaos down there and that it is not
inconsistent to have due process and aggressively fight the
war on terror.

Nobody wants to coddle a terrorist, and if

you mention giving rights to a terrorist, all of a sudden
you are naive and weak.

I can assure you, sir, I am not

naive and weak.
Judge Gonzales.

Thank you, Senator.

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With respect to Guantanamo Bay, it is correct that in
the Rasul decision the Supreme Court did disagree with the
administration position.

We felt, reading Supreme Court

precedent in Johnson v. Eisentrager, that a non-American
enemy combatant held outside the United States did not have
the right to file a habeas challenge.
Senator Graham.
you lost.

It is a correct position to take, but

Now here is my question:

What do we do now that

you lost?
Judge Gonzales.

We have implemented a process to

provide the opportunity for people at Guantanamo Bay to
know of the reasons they're being detained and to have a
meaningful opportunity to contest the factual basis of
their detention before a neutral decisionmaker, all in
accordance with the decision in Hamdi.
Senator Graham.

How is that being worked?

who is

working on that?
Judge Gonzales.

That is being worked through

Secretary England, and they have assumed responsibility
for--the Navy has assumed responsibility for standing at
the combatant status review tribunals, and I can't tell you
today where we are in the process, but we are providing a
level

~f

process which we believe meets the requirements

set out by the Supreme Court.
Senator Graham.

Okay.

I would like to be informed,'

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if possible, in an appropriate way what the executive
department is doing to fill in that gap.
we need legislative action.

I do not know if

But the reason I am going to

vote for you is because I think I have

~ollowed

this

information enough to know that you are a good lawyer, you
ask good questions, and it was ultimately the President's
decision.

And I think he was right.

I think Geneva

Convention protection should not be applied to terrorists.
I think humane treatment is the way to go, the only
way that we can win this war.

My problem is that the DOJ

memo was out there for two years, and the only

p~ople

I can

find that spoke against it were professional 'military
lawyers who are worried about our own troops.

I want you

to get that memo, and if we need three rounds, we will do
three rounds.

But I would like to get you to comment, if

you could.
Is my time up?
Chairman Specter.
Senator Graham.

Almost.
Okay.

Comment if you could.

Do you

believe that a professional military lawyer's opinion that
this memo may put our troops in jeopardy under the Uniform
Code of Military Justice was a correct opinion?
Judge Gonzales .. Would yC?u like me to try to answer
that now, Mr. Chairman?
Chairman Specter .. Yes.

Judge Gonzales, the question

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is pending.
Judge Gonzales.

And the question is do 1 believe that

the military lawyer's judgment that-Senator Graham.

The techniques'being espoused in the

memo may put our troops at jeopardy under the Uniform Code
of Military Justice.

And if you want to take some time,

that is fine.
Judge Gonzales.

Thank you, Senator.

Senator Graham.

I

mean I want sometime later for you

to answer that question, but you do not have to do it right
now.
Chairman Specter.

Do you want to think it over, Judge

Gonzales and respond later?
Judge Gonzales.
Chairman Specter.

I

do.

Thank you, Mr. Chairman ..

Later

duri~g

the hearing, that is

fine.
Senator Feingold.

First I want to follow up on

your answer to Senator Kennedy and Senator Leahy regarding
the OLC memo.

You told Senator Leahy that you did not want

to politicize the work of career profeksionals of DOJ, so
you could not weigh in against the interpretation of the
law that was expressed in that memo.

But then you told

Senator Kennedy that it was totally appropriate to have
discussions with the DOJ while the memo was being prepared
because it was a complicated statute that had never before

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been interpreted.

I think there is something of a

contradiction there, which I would like you to comment on,
but I would like to make two other points first.
First, the authors of the torture memo, in fact,
Judge, were political appointees, not career professionals.
Second, the issue is whether you disagree with that memo
and express that'disagreement to the President.
the

P~esident's

lawyer.

Is it not

you~

You are

job to express your

independent view to the President if you disagree with the
opinion of the Justice Department, or do you just simply
pass on the DOJ's opinion no matter how erroneous or
outrageous, and just say to the

P~esident,

in effect, this

is what the DOJ says the law is?
Judge Gonzales.
question.

Thank you, Senator, for that

Let me try to clarify my comments regarding my

role in connection with the memo and my role generally as I
view it as counsel to the President.
It is of course customary, and I think to be expected
that there would be discussions between the Department of
Justice and the Counsel's Office about legal interpretation
of, say, a statute that had never been interpreted before,
one that would be extremely emotional, say, if you're
talking about what are the limits of torture under a
domestic criminal statute?
about that.

And so there was discussion

But I understand, and it is my judgment that I

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don't get to decide for the Executive Branch what the law
is.

Ultimately, that is the President, of course.

By

statute the Department of Justice is giving me authority to
provide advice to the Executive Branch.

And so while I

certainly participate in discussions about these matters,
at the end of the day, that opinion represents the position
of the Department and therefore the position of the
Executive Branch.
Senator Feingold.

I am puzzled by that because I

think it must be your job as Counsel to the President to
give him your opinion about whether the DOJ document was
right before he makes a judgment to approve it, and I have
always assumed anyway, that that would be the job of the
President's lawyer.
Judge Gonzales.

I certainly do of course give the

President my own opinions about particular matters, but as
I said earlier in response to a question, my own judgment,
my own conclusions, very often are informed, and very often
influenced by the advice given to me by the Department of
Justice, and often I communicate with the President, not
only sort of my views, but the views of the Department,
which of course, by statute, that's their job to do, and so
that the President has that information in hand in weighing
a decision.
Senator Feingold.

I am still puzzled by that.

If you

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were my lawyer, I would sure want to know your opinion
about something like that independent, but let me move on.

Senator eornyn.

Judge Gonzales, has it been your

experience as a lawyer that sometimes lawyers disagree?
Judge Gonzales.

That has been my experience, yes,

Senator Cornyn.

That has been my experience too, and

sir.

I guess it is best exemplified by the lawyers on this
Committee who from time to time will disagree with one
-another, and certainly that is understandable when we
disagree about policy matters, even inferences to be drawn
from facts which we all know to be true.

But I think

perhaps if I heard correctly, the Senator from Delaware was
questioning whether my facts were correct when I presented
the opening statement referring to a number of
acknowledgements of the correctness of your judgment and
the President's decision that. the Geneva Convention does
not formally apply to terrorists.

So I would like to just

quickly refer specifically to the pages, and I would like
to ask unanimous consent that they be made part of the
record.
First, page 379 through 380, where the 9/11 Commission
says that since the international struggle against Islamic
terrorism is not internal, these provisions do not formally

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apply.
And then the Schlesinger report, which studied the
Department of Defense detention policies, which concluded
that there were no high level policies or procedures in
place that would allow for torture or abuse of detainees.
On page 81 they say the panel accepts the proposition that
these terrorists are not combatants entitled to the
protection of the Geneva Convention.
And then there was the reference I made to the Red
Cross Manual on the Geneva Convention, which on page 53
sets out the three-part test on whether the Geneva
Convention actually applies under any given circumstances,
and I would like to ask unanimous consent that those be
made part of the record, and I am confident they will.
let me ask you this.

But

This has also been contested in three

separate Federal courts, has it not?
Judge Gonzales.

It has.

Senator Cornyn.

And what has been the result?

Judge Gonzales.

That the President's decision was the

correct legal decision.
Senator Cornyn.

Even though lawyers can disagree

about judgments, legal judgments or opinions--here again, I
hope we do not disagree about certain basic facts, and that
is the reason I wanted to go over the content of these
documents which the Senator from Delaware suggested I was

•

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mistaken about.
proposition.

Let me ask you whether you agree-with this

Do you agree the that United States

Government should use all lawful means to gather
intelligence from terrorists in order to save American
lives?
Judge Gonzales.

I do agree with that.

that is a policy decision.

Obviously,

I think that that is the

position of the President of the United States, because as
I said earlier, the war on terror is a war about
information, and we need information to be successful in
winning this war.
Senator Cornyn.

You will not be the only witness in

this hearing, and here again we are going to hear, I
anticipate, since we have had the chance to see their
prepared testimony, from other witnesses, who may express
different opinions than you have expressed here, as well as
the opinions expressed by the 9/11 Commission, the
Schlesinger report and those three Federal courts.

But I

for one do think you have been candid in response to the
questions, and I do not suggest I am the only one .
. question, they will not be motivated by some improper

Finally, let me just say that there was some
suggestion that you have been less, or the White House has
been less-than responsive about requests for documents.

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Let me just hold up here what I believe to be part of the
response that the White House has made to the request by
\

Senator Leahy and others on the other side of the aisle
with respect to documents of your office.

Does that look

at least like a--I will not have you go through them page
by

page-~but

have you produced voluminous documents?

Has

the White House produced voluminous documents in response
to Committee requests?
Judge Gonzales.

Senator, it's hard for me to gage

whether or not that reflects our response.

Because of my

nomination, I have recused myself from any decisions
regarding production of documents that this Committee has
requested in connection with my nomination.

Decisions

about production of documents are being made by others at
the White House, as it should be.
Senator Cornyn.

Tha~k

you for that clarification.

It

is my understanding, I have been advised, that the White
House has complied completely with the request for
documents with two exceptions.

One is a document which the

White House is claiming wherein the President has received
confidential and candid advice from senior advisers
relating to the memorandum concerning the application of
the Geneva Convention to al Qaeda and the Taliban.

The

second document that the White House has declined to
produce is an Office of Legal Counsel opinion dated

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64

November 6, 2001, and the reason stated is because that is
currently the subject of litigation.
I would just say that this Committee last year had the
occasion to revisit the importance of our ability as
Senators to receive confidential' advice from our own staff,
and we learned, unfortunately, that there had been a theft
of some staff, memos to Senators, and that now has been
referred for investigation and possible prosecution.
But do you recognize the importance as a general
principle of confidential communications between the
President and his senior advisers, or for that matter,
between the United States Senate and our staff?
Judge Gonzales.

I think it is a very important

principle, senator, that needs to be respected.
the

principa~s

I think

should be able to rely upon candid advice

from their advisers.

I'v~

seen in four years how it does

make a difference in affecting the way you present advice,
if not the advice you actually give.

And so I think that

that is a principle that should be respected, and of
course, there is a competing principle as well, and that
is, sometimes there is a strong or legitimate Government
purpose to try to receive information and to look at that
information, either as part of some kind of criminal
investigation, or part of the oversight function of a
committee, but that always involves a balancing it seems to

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me.

It's sort of a case by case analysis in terms of where

do you draw the line as to when to produce
information and when not to.

delibera~ive

But, yes, I think it is a

principle that one should always be mindful of, is the fact
that you donlt want to inhibit candid advice to principals.
Otherwise, in my-judgment, you do inhibit the decisionmaking of that principal, and I don't think that!s good for
the American people.

Senator Durbin.

_ I am sorry that there pas

been some breakdown between this Committee and the White
House about the production of documents.

As I told you in

our office meeting, it is very difficult for us to sit on
this side of the table and believe that we have the whole -

story when the White House refuses to produce documents
that tell us what happened about many of the issues that we
are raising.

But based on what we do have, I want to try

to get into a few specific questions on the issue of
torture.
The images of Abu Ghraib are likely to be with us for
a lifetime and beyond, as many images of war can be.

The

tragedy of Abu Ghraib and the-embarrassment and scandal to
the United States are likely to be with us for decades and
beyond.

Yesterday we paid tribute to our colleague

Congressman Robert Matsui, not only a great Congressman but

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particularly great in light of the fact that as a Japanese
American, he was sent to an internment camp by his
Government that did not trust his patriotism or the
patriotism of his family.

That shameful chapter in

American history is recounted even today more than 50 years
later as we think about it.

I am afraid that the torture

that occurred in Abu Ghraib and Guantanamo will similarly
be recounted 50 years from now as a shameful chapter in
American history.
When you answered Senator Kohl, you said we are going
to divide what happened in Abu Ghraib into two areas:
physical and sexual torture, never acceptable; some idea of
fun by depraved people.

And you condemned it.

Then a

second area, interrogation techniques that went too far,
and you conceded that those interrogatiQn techniques might
have migrated or started at Guantanamo and somehow made it
to Iraq.
My question to you is:

Would you not also concede

that your decision and the decision of the President to
call into question the definition of torture, the need to
comply with the Geneva Conventions, at least opened up a
permissive environment for conduct which had been ruled as
totally unacceptable by Presidents of both parties for
decades?
Judge Gonzales.

Thank you, Senator, for the question.

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67

Maybe perhaps I did misspeak.

I thought I was· clear that I

was not dividing up the categories of abuse into two
categories, that that was really--that division had been
done within these reports themselves.

And those reports

did indicate that there was some migration as to the second
category.

But the reports and the briefings were fairly

clear in my judgment, and others may disagree, that the
reasons for the migration were because there was inadequate
training and supervision, that if there had been adequate
training and supervision, if there had been adherence to
doctrine, then the abuses would not have occurred.

And.

that's what I see in the reports' and what I see in the
briefings.
As to whether or not there was a permissive
environment, you and I spoke about this in our meeting.
The findings in these eight reports universally were that a
great

maj~rity,

an overwhelming majority of our detention

operations have been conducted consistent with American
values and consistent with our legal obligations.

What we

saw happen on that cell block in the night shift was
limited to the night shift on that cell block with respect
to that first category, the more offensive, the intentional
severe physical and the sexual abuse, the subject of those
pictures.

And this isn't just Al Gonzales speaking.

This

is what, if you look at it, the Schlesinger report

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concludes.

And so what you see is that you have got this

kind of conduct occurring at the night shift, but the day
shift, they don't engage in that kind of conduct because
they understand what the rules were.
And so .1 respectfully disagree with the
characterization there was some sort of permissive
environment.

That's just not the case.

The facts don't

bear that out, sir.
Senator Durbin.

Then let's go to specific questions.

Can U.S. personnel legally engage in torture or cruel,
inhuman, or degrading treatment under any circumstances?
Judge Gonzales.

Absolutely no.

Our policy is we do

not engage in torture.
Senator Durbin.
that for the record.

Good.

I am glad that you have stated

Do you believe that there are

circumstances where other legal restrictions like the War
Crimes Act would not apply to U.S. personnel?
Judge Gonzales.

Senator, I don't believe that that

would be the case, but I would like the opportunity to--I
want to be very candid with you and obviously thorough in
my response to that question.

It is sort of a legal

conclusion, and I would like to have the opportunity to get
back to you on that.
Senator Durbin.

I will give you that change.

In your August memo, you created the possibility that

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69

the President could invoke his authority as Commander-inChief to not only suspend the Geneva Convention but the
application of other laws.
Judge Gonzales.

Do you stand by that position?

I. believe that I said in response to

an earlier question that

I

do believe it is possible,

theoretically possible, for the Congress to pass a law that
would be viewed as unconstitutional. by a President of the
United States.
President.

And that is not just the position of this

That has been the position of Presidents on

both sides of the aisle.
In my judgment. making that kind of conclusion is pne
that requires a great deal of care and consideration, but
if you're asking me if it's theoretically possible that
Congress could pass a statute that we view as
unconstitutional, I'd have to concede, sir, that I believe
that's theoretically possible.
S~nator

Durbin.

Has this President ever invoked that

authority, as Commander-in-Chief or otherwise, to conclude
that a law was unconstitutional and refused to comply with
it?
Judge Gonzales.

I believe that I stated in my June

briefing about these memos that the President has not
exercised that authority.
Senator Durbin.
authority?

But you believe he has that

He could ignore a law passed by this Congress,

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signed by this President or another one, and decide ·'that it
is unconstitutional and refuse to comply with that law?
Judge Gonzales.

Senator, again, you are asking me

whether hypothetically does that authority exist, and I
guess I would have to say that hypothetically that
authority may exist.

But let me also just say that we

certainly understand and recognize the role of the courts
in our system of Government.

We have to deal with some

very difficult issues, very, very complicated.

Sometimes

the answers are not so clear.
The President's position on this is that ultimately
the judges, the courts will make the decision as to whether
or not we've"drawn the right balance here.

And in certain

circumstances, the courts have agreed with administration
positions, and in certain circumstances, the courts have
disagreed.

And we will respect those decisions.

Senator Durbin.

Fifty-two years ago, a President

named Harry Truman decided to test that premise in
Youngstown Steel and Tube v. Sawyer in the Supreme Court.
The Supreme Court said, as you know, President Truman, you
are wrong, you do not have the authority to decide what is
constitutional, what laws you like and do not like.
I am troubled that you would think, as our incoming
Attorney General, that a President can pick and choose the
laws that he thinks are constitutional and ultimately wait

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for that test in court to decide whether or not he is going
to comply with the law.
Judge-Gonzales.

Senator, you asked me whether or not

it was theoretically possible that the Congress could pass
a law that we would view as unconstitutional.

My response

was that obviously we would take that very, very seriously,
look at that very carefully.

But I suppose it is

theoretically possible that that would happen.
Let me just add one final point.

We in the executive

branch, of course, understand that there are limits on
Presidential power.

We are very, very mindful of Justice

O'Connor's statement in the Hamdi decision that a state of
war is not a blank check for the President of the United
'States with respect to the rights of American citizens.

I

understand that and I agree with that.
Senator Durbin.

Well, let me just say in conclusion,

I am glad to hear that.

I am troubled by the introduction.

The hypothetical is one that you raised in the memo
relative to torture as to whether the President had the
authority as Commander-in-Chief to ignore the Geneva
Conventions or certain other laws.

This is not something

that comes from our side of the table of our own creation.
It is your creation, the hypothetical you created.
My concern is this:

I do not believe that this

Government should become a symbol for a departure from

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time-honored traditions where we have said that we will not
engage in torture, directly or indirectly by rendition-which I hope to ask you about in the next
will stand by the'same

standar~s

round~-that

we

of Geneva Conventions

since World War II and, frankly, dating back to Abraham
Lincoln and the Civil War, in

te~ms

of the treatment of

prisoners.
I

am concerned that that round of memos that went

through the Department of Justice, Mr. Bybee, into the
Department of Defense, into Guantanamo, and then migrated
somehow to interrogation techniques in Abu Ghraib has
stained our world reputation.

I want to win this war on

terrorism, but I do not want to do it at the expense of our
soldiers who may someday become prisoners themselves.
Thank you, Mr. Gonzales.

Senator Coburn.

. . . I think that the questioning

that Senator Graham had I think raises significant
questions for us to learn from, especially in terms of the
Code of Military Justice that has to be inculcated
decisions 'that go down the line.

in

But I also want to ask

just a couple of questions.
Are you aware of any' war that this country has been
involved in in its history in which mistakes of human
beings have not peen made and brought to light?

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Judge Gonzales.

Well, as you well know, as I well

know, human beings are not perfect.
Abuses occur.

Mistakes happen.

We know that that's true in all conflicts.

Abuses occur not just in connection with military
operations: abuses occur here in our prisons.

It is

regrettable, and when we find out the abuses have occurred,
we need to correct them and hold people accountable.

But

it is true 'that abuses occur and have occurred, as far as I
know', in all military conflicts.
Senator Coburn.

And is it, to your knowledge, a

policy of this administration at any time to tolerate
torture or inhumane behavior towards any of the detainees
that we have?
Judge Gonzales.

It is not the policy of the

administration to tolera·te torture or inhumane conduct
toward any person that the United States is detaining.

Senator Coburn.

And then, finally, I would ask as you

look at. the Geneva Convention in Iraq and the difference
that we apply to that versus that against the Taliban and
al Qaeda, was there a consideration for those who are not
Iraqis in that combatant field?

In other words, did the

Geneva Convention necessarily apply to all combatants in
Iraq whether or not they were Iraqi citizens or they were
foreign mercenaries?
Judge Gonzales.

That question was considered by the

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Department, and there was a fear about creating a sanctuary
for terrorists if we were to say that if you come and fight
against America in the conflict with Iraq that you would
receive the protections of a prisoner of war.

And I

believe the Department--r know the Department issued, I
believe some guidance, the Department of Justice issued
some guidance with respect to whether or not non-Iraqis who
came into Iraq as part of the insurgency, whether or not
they would also or likewise enjoy the protections
Geneva Convention.
they would not.

of

the

And I believe the conclusion was that

But I would need to go back and confirm

that, Senator.

AFTERNOON SESSION, round two.

Senator Leahy.

Judge, I am going to go back to the

so-called Commander in Chief override.

I listened to your

answer to other Senators, and I checked the
frankly, you never answered my question.·

transcrip~,

and

I still want to

know· whether you think the President can suspend the laws
prohibiting torture and thus immunize torturers.
there is a pretty simple answer.

I think

I think the answer is

just no, the President cannot suspend such laws.

Your

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response to me in the earlier round, your comments at your
·June 2004 press conference, show you disagree, that you
presume such power does exist,' Only the President has not
exercised it yet.

I think this is kind of fundamental.

Your view of the scope of Executive power is something we
need to understand.

If you are going to be the chief law

enforcement officer of this country, and if you have this
view that there is some extraordinary executive power that
allows the President to

o~erride

the laws of the United

States, especially something so fundamental, we should know
because that sets in motion a whole lot of other things.
We saw this in the Nuremberg trials, and I am not in any
way equating our President with the leaders in Germany.
What I am saying though is that you had people that said,
well, we were "just following orders.

And if the President

is able to set aside laws that have been set in place,
those who do things that are wrong can just say, well, we
were just following orders.

But as the United States has

always said, and every President has said, this is not a
defense.
So I am going to ask you again, can" the President
immunize from prosecution those who commit
his order?

to~ture

under

I am not suggesting the President has made such

orders, but can a President immunize from prosecution those
who would commit torture under his order?

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Judge Gonzales.

Senator, one thing that I failed to

emphasize in the first round is of course if confirmed by
the Senate, I will take an oath of office to defend the
laws of this country.
Senator Leahy.

W~

Judge Gonzales.
congress.

all do.

and that means the laws passed by the

So I was responding to a hypothetical question

about whether or not is it theoretically possible that
Congress could pass a law that a President would not follow
because he believed" it was unconstitutional, a position
that is not unique to this President, but a position-Senator Leahy.
question.
law.

But I am not asking you a hypothetical

I am asking about a particular law, the torture

Can the President ignore that law, say it does not

apply, and immunize people who then committed to~ture?
Judge Gonzales.
Senator,

w~s

that that is a hypothetical situation that is

not going to happen.
torture.

I believe my earlier response,

This President is not going to order

I will also say--

Senator Leahy.

Could a President?

Judge Gonzales.
to order torture.

Senator, this President is not going

We don't condone it.

I will say with

respect to the opinion, the August 1st opinion has been
withdrawn.

I reject that opinion.

It has been rejected.

It does not represent the views of the Executive Branch.

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It has been replaced by a new opinion that does not have
that discussion.

And so as far as I am concerned, it is

not an issue in which the Executive Branch has taken a
position on it.

I am not prepared in this hearing to give

you an answer to such an important question.
Senator Leahy.

Let me say this.

.

The order stayed in

'

there, was there for a long time until the press got hold
of it.

Then there is a lot of scrambling around, and on

the first three-day weekend prior to your confirmation, all
of a sudden they come up, oh, wait a minute, we have a new
order.

I am not going to be cynical, but some might be.

Let me take you another example.

The President has claimed

authority to lock up a U.S. citizen arrested in the United
States and hold him incommunicado for an indefinite period,
without access to a lawyer or a family, without real access
to the courts.

That is not

has claimed that authority.

hypo~hetical.

The President

Does the President have that

authority?
Judge Gonzales.

The Supreme Court in the Hamdi

decision said yes, the President of the United States does
have the authority-Senator Leahy.

Hamdiwas the case where he was

arrested on the battlefield in Afghanistan.

What about a

case here, an American citizen, in the United States?
Judge Gonzales.' Senator, the Supreme Court has not

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addressed that decision straight on, but in Hamdi the Court
did say that the United States could detain am American
citizen here in this country for the duration of the
hostilities without filing charges.
Senator Leahy.

Do you think that here in the United

States the President has authority to have a citizen
arrested, a U.S. citizen, held incommunicado for an
indefinite period, without access to a lawyer or family?
Judge Gonzales.
Senator Leahy.

Senator, the-I asked you if the President has that.

Now, in Hamdi of course they were talking about the AUMF,
the authorization for the use of military force, the
Congress had voted on for military force in Afghanistan.
Hamdi was picked up in Afghanistan.
Padilla.

We had a second case,

There the Court kind of punted it, they did not

answer the question.

They have said the jurisdiction was

wrong, it was brought in the wrong court.

It should have

been brought habeas corpus in another court.
All I am asking, does the

Presid~nt,

the President

today have the authority to hold a U.S. 'citizen'
incommunicado for an indefinite period of time in the
United States?
Judge Gonzales.
authority under Hamdi.

Well, the President does have the
That is what the Court said, is you,

could hold an American citizen.

Let me be very, very

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clear.

The United States Government never took the

position that a U.S. citizen detained by its Government
could not challenge the detention by the Government.
Senator Leahy.

But they are held incommunicado and

have no access to a lawyer or a court.

Is that not kind of

saying, gosh, you could appeal it everywhere else.

We are

not going to let you out of the cell, we are not going to
let you talk to anybody, we are not going to let you have
the court.

We just want you to know you got all your

rights.
JUdge Gonzales.

Senator, respectfully, not only did

Hamdi have access to the courts, he had such good access
and such good representation by counsel that his case was
heard all the way by the highest court in the land.

So,

the decision as to whether or not to provide access to
counsel is probably one of the most difficult decisions
that we have to confront because there are competing
interests here.

As a lawyer, I have a great deal of

concerns about not providing lawyers to American citizens
that are being detained by this country.

On the other

hand, there is a competing interest of gathering
information that this American citizen, this enemy
combatant, may have information that may save the lives of
American citizens, and our position has been is that we
prOVide counsel as quickly as possible that the American

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citizen--I1m sorry, Senator, I didn1t mean to interrupt
you.
Senator Leahy.

No, no.

I was just going to say we

can go back there, and we will have to, because we are
talking about a perfect world.

If you do a dragnet, as we

have found out, in some of these dragnets are people held
for a long time, and say, whoops, we have got the wrong
guy.

We have-7
Chairman Specter.

last answer?

Judge Gonzales, did you finish your

Feel free if you want to.

Judge Gonzales.
Senator Leahy.

That's fine.

Thank you, Senator.

Let us take the Bybee·memo.

It is a

lengthy document, 50 single-spaced pages, relies· upon a
whole wide range of sources.
put it in the. record.

I think somebody has already

It references, for example, health

care. administrative law at least five times, and·that is
not the issues we are rasing with you.

But you know one

thing it never does?

It never cites this document, which

you would think

be the best thing to do, the Army

~ould

Field Manual on Intelligence Interrogation.
Now, the Army Field Manual on Intelligence
Interrogation is something that holds all the experience of
this Nation for 200 years, the things we have done right,
the things we have done wrong, all the courts.
mean we are telling our people what to do.

Not once--I

Not once does

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81

it mention this, and this is the manual that says

u.s.

policy expressly prohibits acts of violence or intimidation.
including physical or mental torture,

threats~

insults or

exposure, inhumane treatment as a means to or aid
interrogation.

You think it is at all troubling that Bybee

never references it?

I mean if it had, if it incorporated

this, we probably never would have had the issue raised.
Judge Gonzales.

Senator, the work of OLC in

connection with interpreting the anti-torture statute was
an analysis of that domestic statute in Title 18.

The fact

that the opinion covers only conduct related to that
statute doesn't mean that there might not be other legal
prohibitions in which our military soldiers might be bound.
OLC was looking only at an interpretation of that domestic
. statute, and the fact that there may be other laws or
regulations that might be binding, of course, they would
not be excused from following those other laws and
regulations by virtue of the opinion, which again, was
focused only in interpretation of a statute in Title 18.

Senator Cornyn.

Judge Gonzales, I know Senator Durbin

has raised the issue of whether a President might try to
uphold the Constitution by declining to enforce statutes
that are unnecessary, and I found the notion fascinating
from a legal standpoint, and so· I asked staff to look at

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some of the OLC opinions during the Clinton administration
during the lunch break, and here is what we found.
In 1994 the Office of Legal Counsel, during the
Clinton administration, issued an opinion authored by
Walter Oellinger, who is a well-known constitutional legal
scholar, that said, "Let me start with a general
proposition that I believe to be uncontroversial.

There

are circumstances in which the. President may appropriately
decline to enforce a statute that ·he views as
unconstitutional," and of course Presidents of both parties
famously reject the War Powers Resolution as
unconstitutional.

Moreover, in the Dickerson case the

Clinton administration refused to defend a Federal statute
against constitutional attack in the courts.

The Supreme

Court had to look to special counsel to offer a defense of
that statute.

It seems to me that this administration is

being attacked for something that the Clinton
administration did on a--if not a frequent basis, did at
least more than once.
Judge Gonzales.

Would you care to comment on that?
As I said earlier, Senator, I think

·that we should look--the Executive Branch should always
look very carefully with a great deal of seriousness and
care about reaching a decision that a statute passed by
Congress is somehow unconstitutional and should not be
followed.

Certainly if I were confirmed, I would take my

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• J

oath very, very seriously to try to defend any act passed
by Congress, but it does appear to me, based upon my review
of history and precedent is that Presidents and White
Houses on both sides of the aisle have taken the consistent
position that a President may choose to not enforce the
statute that the President believes is unconstitutional.
Senator Cornyn.

I would like to shift sUbjects a

little bit to return to something we have been talking
about off and on all day, and that is the policy reasons
behind the

G~neva

Convention decision, and I hope that I

have been able to establish the position the administration
takes and the position that you advocated for enjoys broad
support in the legal community, and by scholars of
international law, and we can go back to that again if some
of my colleagues still disagree with me and the
administration on that.

But I can think of at least four

reasons, four important reasons why the

Presiden~ls

legal

determination was correct, and this has to do again with
giving terrorists, conferring upon them the

statu~

of

prisoners of war as provided for under the Geneva
Convention.
First of all, is it not true that the Geneva
Convention gives prisoners of war rights and protections
that could directly endanger their captors if given to
combatants who do not respect the laws of war?

And if you

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84

agree with that, could you please talk about some of them?
Judge Gonzales.

If a determination were made that the

Geneva Convention applied in our conflict with al Qaeda, we
would have to provide certain things, certain

acc~ss

to

certain items of comfort that could be used as weapons
against our soldiers.

Also we would be limited in our

ability to put them in individual cells.

They would have

the right to congregate together and to talk, to talk about
strategy and responding to interrogations, to perhaps talk
about how to attack a guard, or perhaps talk about how to
plan an escape.

The additional problem with providing

Geneva protections, prisoner of war protections to
terrorists who do not abide by the laws of war, is that we
would in essence provide combat immunity for their engaging
in war crimes.
Senator Cornyn.

If I can interrupt you briefly, is

that not what John Walker Lindh tried to do, the IIAmeri:can
Tal iban II I believe he was known as?

He claimed an immunity

by virtue of his prisoner of war status against criminal
prosecution for committing war crimes; is that right?
Judge Gonzales.

That's my recollection.

Senator Cornyn.

When I traveled to Guantanamo Bay

about a year or so ago to see for myself the facilities and
the conditions under which detainees were kept, I was
interested to learn about certain techniques, here again,

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85

humane techniques, but techniques nonetheless for eliciting
cooperation and intelligence from some of these detainees.
For example, the providing of certain incentives, for
example, what the food that was provided.

Iremember

specifically one instance where detainees who cooperated a
little more got to cook out on a grill, basically, or food
cooked out on a grill as opposed to the institutional type
food they got.
cells into group

They were permitted to move from individual
setting~

where they could make more

arrangements for their own comfort and convenience.

Are

those the sorts of things that 'we could do to elicit
actionable intelligence if the Geneva Convention applied
and these were conventional prisoners of war?
Judge Gonzales.

Senator, if the Geneva Conventions

applied, you would be prohibited from providing incentives
in order to induce cooperation.

I, like you, have been

down to Guantanamo, and much of the operation of the bases
at Guantanamo are to induce cooperation, and we would not
be able to do that if the Geneva Conventions applied.
Senator Cornyn.

And indeed, r think it has been

recounted time and time again, one reason we do not use
torture as a matter of policy, period, but one pragmatic
reason why it does not work is because people will say
things under those circumstances that do not provide good
actionable intelligence.

So I think one of the things I

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86

observed and was really fascinated to see in practice was
the use of some of these essentially incentives that
provided for greater cooperation, but gave us the results
we needed, which in fact have saved American lives.
Let me ask you, why would extending the Geneva
convention to terrorists, why would that have a negative
impact on international law?

What would that do to any

incentive that might exist on the part of our enemies to
comply with the laws of war?
Judge Gonzales.

Senator, it seems to me, it seems

logical to me that you want to reward good behavior, and if
you want members of al Qaeda to fight according to the laws
of war, you dontt do that by providing them prisoner of war
legal protections.
Now, let me emphasize, and I can't emphasize this
strongly enough, there are certain basic values that this
country stands for and this President certainly believes
in, and those values are reflected in the directives that
he has issued regarding the treatment of al Qaeda
detainees, and those who do not meet those standards are
going to be held accountable.

In addition, there are of

course other legal restrictions.

For example, the

convention against torture, that would be applicable, Army
regulations that would be applicable.

All those exist to

conscript the type of conduct that our military can engage

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87

in with respect to detainees.

And so we

wan~

to of course

. meet basic standards of conduct with respect to treatment
of al Qaeda, but information is very, very important, and
if there are ways we can get that information, for example,
through inducements, it seems to me that there is a
responsibility of this government to exercise those, needs.
Senator Cornyn.

Finally, let me just

say'th~t

that

opinion that you just expressed finds you in pretty good
company.

I have in my hand a legal textbook called ""The

Legal Status of Prisoners of War" by Rosas, Alan Rosas,
that says on page 344:

The only effective sanction against

perfidious attacks in civilian dress is a deprivation of
prisoner of war status.

And I take it you would agree with

that conclusion?
Judge Gonzales.

Senator Kennedy.

Yes, sir.

Now, Mr. Gonzales, let me, if ·1

could, during my last round, there are sort of three
general areas I want to try and cover in the time that I
have.

During my last round of questions, and the reason I

come back to this is because, when you come right down to
it, that Bybee memo, and the views expressed in that,
certainly was policy.
groupls report.

It was printed in the working

It was reported by those over in Iraq.

It

has been referred to in the Armed Services Committee, in

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UNCLASSIFIED
8a

the Schlesinger report, as being the policy of the
Department of Defense.

And the change that memorandum

gave, in terms of how we were going to treat detainees in
there, I believe, runs roughshod or did run roughshod over
the Geneva Conventions.

But we have a dispute.

You indicated that this was served up by the Office of
Legal Counsel, and it is the interpretation that Legal
Counsel has

pr~vided

for

statu~es

that we have passed in

1994.

Judge Gonzales.

Senator, if I may, of course, the

August 1 memo has been withdrawn.
has been rejected.
Executive Branch.

I mean, in essence, it

It does not represent the views of the
The views of the Executive Branch

regarding the anti-torture statute are now reflected in the
December 30th memo which, as we know, the deputy attorney
general announced in June that this was going to happen.
It was going to be withdrawn.

The opinion would be

revisited and issued by the end of the year, and it was
issued before the end of the year at the request from a
member of "this Committee.
Senator Kennedy.
in terms of the future.

Well, I think that is very good news
I think that is very good news.

But over this period of time, there have been the most
extraordinary abuses that have been reported by DIA and the
FBI.

And I think it is fine and well, and you say now all

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89

of that memoranda that was interpreted that way is no
longer

operativ~.

But over a period of time, as has been

referenced by others in the Committee, there is no question
in my mind--I have listened to you answer the questions
about what happened at Abu Ghraib--and there is no question
that there were military personnel that bear
responsibility, and there is no question there was a lack
of training.
But the third part that you have not referenced in any
of your answers is that there was also the working group
report that effectively would have justified and approved
those kinds of .activities.
differ with that.

Now, you may say that you

That was the document at DOD, and there

is no reason to believe that the same'kind of document was
not given to the CIA.

Was it given to the CIA--the Bybee

memo?
Judge Gonzales.

Sir, first of all,

what--was the memo given to the CIA?

I

I

am not sure

suspect that it was

given--it represented the Administrative Branch position,
and so it would not surprise me, of course, that agencies
involved in the war on terror-Senator Kennedy.
Judge Gonzales.
Senator Kennedy.

Who would have given it to the CIA?
Sir-Was not this memoranda directed to

you?

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UNCLASSIFIED

Judge Gonzales.

Sir, it was addressed to me.

Senator Kennedy.

Was it not requested by you?

Judge Gonzales.

Sir, I do not recall if it was

requested by-Senator Kennedy.
Judge Gonzales.

We can-Let me just say, Senator, in

practice, how this may work.
own in-house shop.

An agency, of course, has its

An issue comes up, their lawyers get

involved in providing legal advice.

From time to time, the

issues are so complicated or so complex it may cut across
various agencies that the issue gets elevated up'to the
Office of Legal Counsel.

And so it may well have been that

the CIA or DOD asked OLe, as an initial matter, for their
views on this, and then, for whatever reason, the memo was
addressed to me.
I

accept responsibility that the memo is addressed to

me.
Senator Kennedy.

Well, do you accept responsibility

that you requested it?
Judge Gonzales.
Senator Kennedy.
Chairman Specter.

Sir-Is this such a difficult-Let him answer the question,

Senator Kennedy.
Judge Gonzales.

I don't recall specifically whether

or not I requested this memo or whether or not the initial

UNCLASSIFIED
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UNCLASSIFIED

reques~

came from the CIA or the CIA came to me.

I don't

recall, Senator.
Senator Kennedy.
various meetings?

You do not have notes about these

You do not jot these down, so you would

not be able to know whether this happened?

You would have

no notes, no information, no memoranda that would indicate?
On an issue of this kind of importance and consequence, at
the time that this country was at war on this and where
there is enormous pressure, as we

understa~d

now, to gain

information and intelligence from this, you would not be
able, even today, to be able to respond to the question
about how this was initiated, particularly when it is
against the background where OLC indicates that it carne
from you and from the news reports?

This is not enormously

complicated--I want to get into some other kinds of things-the fact that you basically initiated.
Judge Gonzales.

Senator--

Senator Kennedy.

Your answer is you cannot remember.

Judge Gonzales.

Senator, I certainly don't want to be

argumentative with you.

I really do not remember.

It

seems to me what is important here is that we realize,
there was a recognition within the agencies, and I believe
within the White House, that this was an important issue
and that the Department of Justice should play its
traditional role of providing legal advice about the

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92

parameters of this statute.
Senator Kennedy.

I just want to point out, if it is

true, as the Post reported, that you held several meetings
at which the legality of interrogation techniques, such as
threat of live burial and water-boarding were discussed; do
you remember that?
Judge Gonzales.

Senator, I have a recollection that

we had some discussions in my office, but let me be very
clear with the Committee.
type of methods

o~

It is not my job to decide.which

obtaining information from terrorists

would be most effective.
folks within the agencies.

That job responsibility falls to
It is also not my job to make

the ultimate decision about whether or not those methods
would, in fact, meet the requirements of the anti-torture
statute.

That would be a job for the Department of

Justice.

And I never influenced or pressured the

Department to bless any of these techniques.

I viewed it

as their responsibility to make the decision as to whether
or not a procedure or method of questioning of these
terrorists that an agency wanted, would it, in fact, be
lawful.
Senator Kennedy.

Well, just as an attorney, as a

human being, I would have thought that if there were
recommendations that were so blatantly and flagrantly over
the line, in terms of torture, that you might have

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recognized them.

I mean, it certainly appears to me that

water-boarding, with all its descriptions

abou~

drowning

someone to that kind of a point, would come awfully close
to getting over the border and that you would be able to at
least say today there were some that were recommended or
suggested on that, but I certainly would- not have had a
part of that as a human being.
Judge Gonzales.
Senator Kennedy.

Well-But as I understand, you say now

that no matter what they recommended or" what they
discussed, there was not going to be anything in there that
was going to be too bad or too outrageous for you to at
least raise some objection.
JUdge Gonzales.
discussions about it.

Senator, of course, we had some
And I can't tell you today whether

or not I said, "That's offensive. That's not offensive."
.
But it seems to me it's the job of the lawyers to make a
determination as to whether or not something is lawful or
not and then for the policymakers, the principals, to
decide whether or not this is a method of receiving
information from terrorists is something that we want to
pursue, that the lawyers have deemed lawful, under the
directive of a President, who says that we should do
everything that we can to win this war on terror, so long
as we are meeting our legal obligat.ions.

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Senator Kennedy.

Earlier today, you know, this is all

against a background, as you know, Mr. Gonzales, of a
series of statutes on torture that the Congress has passed
in recent times.

This is not a new issue.

We had the

Federal Antitorture Statute in 1994 that both President
Reagan and President Bush, unanimous Committee, the Federal
War Crimes Act of 1996, the Uniform Code of Military
Justice goes back to 1950, the Convention Against Torture
ratified by Congress, one
international.

wa~

domestic, the other

The International Covenant on Civil and

Political Rights, in 1992, provides "no one shall be
subject to torture or cruel, inhumane, degrading treatment
or punishment."

And then last year Congress reaffirmed,

virtually unanimously, that the Nation's commitment not to
engage in torture, cruel, inhumane and degrading.
So this is a subject matter that Republicans and
Democrats have spoken out very clearly, and many of us
find,- and perhaps you do--certainly, you do at the present
time--that the Bybee memo certainly was in conflict with
those particular statutes.
But let me ask you this:

In these reports on

Guantanamo-What I would be interested, just quickly,
should you be confirmed, what you are going to do with
regards to the FBI.

.

.

They have been involved in many of

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95

these reports that they have been involved.

It would be

interesting if you could tell the Committee what you are
going to do, confirm, about the involvement of the FBI in
this.

And I was going to ask, just the two, if the fact

that ,this memo has been repealed, whether that information
now has been communicated to the CIA and the CIA has
accepted it and DOD, if they are all together.

But if you

could just let me know-Judge

Gon~ales.

Senator, my presumption is--

--my presumption is it has been communicated to the
agencies.

I have not, myself, communicated the new

position, but again it does represent administrative
policy.
And with respect to FBI involvement, the recent
reports about these FBI e-mails about abuses in Guantanamo,
quite frankly, surprised and shocked me because it is
certainly inconsistent with what I have seen.
traveled down there.

I have

And it is certainly inconsistent with

other reports I have seen with respect to investigations
about activities in Guantanamo.
I would like to sit down with the folks at the FBI and
other folks within the Department of Justice to make sure
that the facts are accurate because I know one very
important fact in these stories, the FBI--much was made of
the fact about an FBI agent referring to an Executive Order

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96

by the President authorizing certain techniques.
just--that is just plain false.

That is

That never occurred.

And

so if something like that is wrong in these e-mails, there
may be other facts that are wrong in the e-mails.

And what

I am suggesting is I -just need to, if confirmed, I'need to
have the opportunity to go into the Department and the FBI
and just try to ascertain the facts.

Senator Feingold.

....

Let me switch to a subject that has come up a lot here
today.

In the August 2002 memorandum, the Justice

Department concludes that the President, as Commander-inChief, may authorize interrogations that violate the
criminal laws prohibiting torture and that the Congress may
not constitutionally outlaw such activity when it is
authorized by the President.

This is the claim,

essentially, that the President is above the law so long as
he is acting in the interest of national security.
A December 30 rewrite of the August memorandum does
not repudiate this view.

It simply says the issue is

irrelevant because the President has prohibited torture.
Today, in response to questions on this subject, you
have been unwilling to repudiate this legal theory.
have danced around the question a bit.

You

But as I understand

your answers so far, you have said there may be a situation

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97

where the President would believe a statute is
unconstitutional and would therefore refuse to comply with
it, but would abide by a court's decision on its

constitutionality.

You, also, r am told, said that many

Presidents have asserted the power not to enforce a statute
that they believe is unconstitutional.

But there is a

difference between a President deciding not to enforce a
statute which he thinks is unconstitutional and a President
claiming to authorize individuals to break the law by
torturing individuals or taking other illegal actions.

So what

I want to do is press you on that because I

think perhaps you have misunderstood the question, and it
is an important one.

It goes to a very basic principle of

the country that no one, not even the President of the
United States, is above the law .. Of course, the President
is entitled to assert that an act of Congress is
unconstitutional.
This President did so, for example, with respect to
some portions of our McCain-Feingold bill when he signed
it, but his

~ustice

Department defended the law in court.

as it is bound to do with every law duly enacted by the
Congress.

And his campaign and his party complied with the

law while a court challenge was pending.

No one asserted

that the President had·the power to ignore a law that he
thought was

unconstitutiona~.

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98

The question here is what is your view regarding the
President's constitutional authority to authorize
violations of the criminal law, duly enacted statutes that

may have been on the books for many years when acting as
Commander-in-Chief?

Does he have such authority?

The

question you have been asked is not about a hypothetical
statute in the future that the President might think is
unconstitutional.

It is about our laws in international

treaty obligations concerning torture.

The torture memo

answered that question in the affirmative, and my
colleagues and I would like your answer on that today.

Judge Gonzales.
been withdrawn.

Senator, the August 30th memo has

It has been rejected, including that

section regarding the

Commander~in-Chief's authority

ignore the criminal statutes.
the Executive Branch.

to

So it has been rejected by

I, categorically, reject it.

And,

in addition to that, as I have said repeatedly today, this
administration does not engage in torture and will not
condone torture.

And so what we are really discussing is a

hypothetical situation that--

Senator Feingold.
broader question.

Judge Gonzales, I have askea a

I am asking whether, in general, the

President has a constitutional authority, does he, at least.

in theory, have the authority to authorize Violations of

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the criminal law when there are duly ,enacted statutes
simply because he is Commander-in-Chief?

Does he have that

power?
Senator, in my judgment, you have

Judge Gonzales.

phrased sort of a hypothetical situation.

I

would have to

know what is the national interest that' the President may
have to consider.

What

I

am saying is it is impossible to

me,. based upon the questions you have presented to me, to
answer that question.

I

can say that there is a

presumption of constitutionality with respect to any
statute passed by Congress.
the statutes.

I

will take an oath to defend

And to the extent that there is a decision

made to ignore a statute. I consider that a very
significant decision and one that I would personally be
involved with, ! commit to you on that, and one

I

will take

with a great deal of care and seriousness.
Senator Feingold.

Well, that sounds to me like the

President still remains above the law.
Judge Gonzales.

No, sir.

Senator Feingold.

If this is something where you take

a good look at it, you give a presumption that the
President ought to follow the law, you know, to me that is
not good enough under our system of Government.
Judge Gonzales.

Senator, if ! might respond to that,

the President is not above the law.

Of course, he is not

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above the law.
oath as well.

But he has an obligation, too . . He takes an
And if Congress passes a law that is'

unconstitutional, there is a practice and a tradition
recognized by Presidents of both parties that he may elect
to decide not to enforce that law.

Now, I think that that

would be-Senator Feingold.

I recognize that and I tried to

make that distinction, Judge, between electing not to
enforce as opposed to affirmatively telling people they can
do certain things in contravention of the law.
Judge Gonzales.

Senator, this President is not--it's

not the policy or the agenda of this President to authorize
actions that would

be~in

contravention of our criminal

statutes.
Senator Feingold.

Finally, will you commit to notify

Congress if the President makes this type of decision and
not wait 2 years until a memo is leaked about it?
Judge Gonzales.

I will commit to advise the Congress

as soon as I reasonably can, yes, sir.
Senator Feingold.

Well, I hope that would be a very

brief period of time, and I thank you again, Judge
Gonzales.

Senator Schumer.
that is this:

Let me ask you another question, and

We have had a lot of talk about the Geneva

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Convention and what has happened in the past.

I want to

ask you a prospective
question about the Geneva Convention..
.
Do you think that we should seek revisions of the Geneva
convention in the future?

I do not know if that is right

or wrong, but do you think we should?
discussions in your office

~s

Have there been any

Counsel orin the White House

or in the administration, as to whether we should seek those
revisions? . And if there is a determination that we should
seek certain revisions--and I do not know what they would
be; they might be reasonable--should Congress be include in
that discussion?
Judge Gonzales.
que~tion.

Thank you, Senator, for that

I think it's a very good question because we are

fighting a new type'0f enemy and a new type of war.
Senator Schumer.
Judge Gonzales.

Sure.
Geneva was ratified in 1949, Geneva

Conventions, and I think it is appropriate to revisit
whether or not Geneva'should be revisited.
Now, I'm not suggesting that the principles of Geneva
regarding basic treatment, basic decent treatment of human
beings, should be revisited.
polestar.
at this.

~hat

should always be our

That should always be the basis on which we look
But I am aware--there has been some very

preliminary discussion as to whether is this something that
we ought to look at.

I'm also aware that certain

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academicians and international law scholars have written on
this subject as to whether or not should we revisit Geneva
and asked whether or not the Senate should play a role or
the Congress should playa role.

Obviously, if you're

talking about modifications of Geneva or a new treaty, the
Senate would play a very important role in the ratification
process.
Senator Schumer.

I

understand that, but what I am

saying is if the new administration were to begin internal
discussions on whether Geneva should be modified and'in
what way, would they include the Senate in those
discussions rather than saying here is what we recommend?
You know, ! mean, obviously this needs to be negotiated in
a multilateral way.

But would you include us in those--or

would you recommend to the President that we be included in
those discussions?
Judge Gonzales.
to emphasize, when

Before answering a question, I want
indicate that there's been some

I

discussion within the White House or the administration,
it's not been a systematic project or effort to look at
this question, but some--r know certainly with the people
that I deal with, the lawyers have questioned maybe this is
something that ought to be 'looked at.
leave the

So

I

do not want to '

impr~ssion--

Senator Schumer.

I do not hold any brief against

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that.

Obviously, you can re-examine these things.
Judge Gonzales.

And it seems to me that it's probably

always better to consult with the Senate since the Senate
is going to have a role in the ratification process.

1

think consultation is usually better than not consulting.
Senator Schumer.

Okay.

And there is no proposal you

know that is being formulated right now, is there?
Judge Gonzales.

Not that, I'm aware of. senator.

Senator Durbin.

Thank y:ou.

My gifted legal staff

listened closely to your answers to my questions and
believe you gave a very carefully worded lawyer answer to a
question, Which 1 missed.
make certain that
torture issue.

I

And

SO

for the record, I want to

understand your position again on this

Can U.S. personnel legally engage in

torture under any circumstances?
Judge Gonzales.

1 1 m sorry.

Can U.S. military

personnel-Senator Durbin.

U.S. personnel.

Of course, that

would include military as well as intelligence personnel.
or other who are under the auspices of our Government.
Judge Gonzales.

Senator, there are obligations under

the treaty against torture and there are obligations under

the anti-torture statute.
obligations in the UCMJ.

There are obligations, legal
And so I suppose

without-~I

don't

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believe so, but I'd want to get back to you on that and
make sure that I don't provide a misleading answer.

But I

think the answer to that is no, that there are a number of
laws that would prohibit that.
Senator Durbin.

I would like if you would give me a

definitive answer.
Judge Gonzales.

Yes, sir.

Senator Durbin.

And then the follow-up question which

they tell me I did not ask was whether or not it is legally
permissible for

u.s.

personnel to engage in cruel, inhuman,

or degrading treatment that does not rise to the level of
torture.
Judge Gonzales.

Senator, our obligations under the

Convention Against Torture with respect to cruel, inhumane,
and degrading conduct, as you know, is under Article 16, I
believe.

As Counsel to the President-As Counsel to the President, my job was to

ensure that all authorized techniques were presented to the
Department of Justice, to the lawyers, to verify that they
met all legal obligations, and r have been told that that
is the case.
,As you know, when the Senate ratified 'the Convention
Against Torture, it took ,a reservation and said that our
requirements under Article 16 were equal to

o~r

requirements under the Fifth, Eighth, and 14th Amendment.

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105

As you also know, it has been a long-time position of the
exec~tive

branch and a position that has been recognized

and reaffirmed by the Supreme Court of the United States
that aliens interrogated by the U.S. outside the United
States enjoy no substantive rights under the Fifth, Eighth,
and 14th Amendment •. So as a legal matter, we are in
compliance.

aut let me just emphasize, we also believe

that we are in--we want to be in compliance as a
substantive matter under the Fifth, Eighth, and 14th
Amendment.

I

know Jim Haynes wrote a letter to Senator

Leahy about whether or not we were meeting our.obligations,
and the response certainly would lead one to conclude that
what we were saying was that we were meeting our
substantive obligations under the Fifth, Eighth, and 14th
Amendment.

And no one has told me otherwise.

My

understanding is that we are meeting our obligations under
Article 16.
Senator Durbin.

It is your belief that we are legally

bound to do that; is that correct?
Judge Gonzales.

Well, subject to the reservations

taken by the Senate in ratifying the treaty-Senator Durbin.

Just by definition, which definitions

we use.
Judge Gonzales.

We are meeting our legal obligations,

yes, sir.

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Senator Durbin.

And so this morning we read in the

paper about rendition, an argument made that we took a
prisoner whom we could not, should not torture legally, and
turned him over to a country that would torture him.

That

would be illegal as well, would it not?
Judge Gonzales.

Under my understanding of the law,

yes, sir, that we have an obligation not to render someone

•

to a country that we believe is going to torture them.
That is correct.

you articulate in a few words your position about the
Senator Graham.

The working group that was

formed in the Pentagon, as I understand it, occurred in the
January time frame of 2003, and one of the documents

t~e

working group was working off of was the now infamous
August DOJ memo.

And I asked you a question before about

whether or not you believe that the techniques in the
August memo being espoused, whether or not that would put
some of our troops at risk for court martial.

And I do not

expect you to answer.that off the cuff, but there was a
series of JAG memos as part of this working group that
suggested that might be the case.
Have you ever seen those memos?
. Judge Gonzales.
sir.

I don't recall.

I don't believe so,

Let me just say that I don't believe it's the case

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107

that our office had anything to do with the work of the
working group.

I might also say that with respect to your

question, the work of the Department of Justice in
reviewing--or in that August 1 opinion was related to a
review of the anti-torture statute, a particular statute.
I don't believe--I mean, if there were other provisions,
other restrictions upon people in the military, the fact
that the Department has given guidance about the scopes of
the anti-torture statute doesn't mean that somehow other
binding regulations wouldn't apply.

And so it is possible

that you could engage in conduct that would satisfy that
statute, according to the memo, but be inconsistent with
other obligations that

~ould

remain binding upon members in

our military.
Senator Graham.

I think that is probably what

happened, and I am try to learn from this process because
you have one Department of the Government suggesting
techniques that I think run afoul of the way the military
is organized.

And what I am trying to get us to look at is

to make sure we donlt go down that road again.

And if you

didn't see the memos, that to me is a bit disturbing
because you are sort of out of the loop.
better understand your role in this.
.collect information.

And I think I

You are trying to

r

The working group is trying to

implement policy.

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UNCLASSIFIED
lOB

Judge Gonzales.

If I could just interrupt you,

Senator, you said something--if I've said--if I've given
the impression that the Department of Justice was
suggesting techniques, they never were.
is the

Departme~t

What was happening

of Defense, I believe, was suggesting the

use of certain methods of obtaining information from the
terrorists,. and that was presented to the Department of
Justice, and the Department then gave its opinion as to
whether or not such methods were, in fact, lawful.
Senator Graham.

Well, what actually happened, as I

understand it, is that the Department of Justice memo in
August talks about the torture statutes in ways-that I
think you and 1--1 think you have said that you disagree
with that original legal reasoning.

I can assure you that

I do, and it got us into a situation of where we are
getting our troops potentially in trouble.

And that memo

launched a thought process in the Department of Defense
that divided the Department.

And I think you need to know

this and go back and study how this happened because there
were 35 techniques suggested, I believe is the number.

And

when the judge advocates were finally consulted, they
looked at the underlying memo from the Department of
Justice and said, Whoa, if you go down this road and you
look at this· definition of what it takes to commit an
assault and, you know, the pain level involved, that is

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totally inconsistent with how we are going to govern our
troops when it comes time to regulate detainees because
there is a specific article in the Uniform'Code of Military
Justice that makes it a crime to assault. a detainee.
And here is the good news.

After Secretary Rumsfeld

understood that there was a debate within the Department
between civilian lawyers and military lawyers, he stopped
and required a re-evaluation in April of,

2004~

The

techniques were changed.
The only reason I bring this out is that ,it
illustrates to me, Judge, that when you try to cut corners,
it always catches up with you.
up with us.

And I think it has caught

And what I am looking for you to hopefully do

is bring us back on the right road.

And the new memo

coming out of the Department of Justice to me is a step in
the right direction.
Do you belieye that was a necessary thing to 'have
done?
Judge Gonzales.

Sir, first of all, let me--your

characterization that we're cutting corners, I believe we
have good people at the Department of Justice who did the
very best they could interpreting, in my judgment, a
difficult statute.

So I think they did the very best they

could.
Senator Graham.

Well, that is where me and you

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110

disagree.

I think they did a lousy job.

JUdge Gonzales.
been withdrawn.
position of the

That opinion and the analysis has now

It is rejected.
e~ecutive

It is no longer the

branch.

Senator Graham. Now to Gitmo.

I am very encouraged by

the efforts to fill this legal vacuum because once the
Suprem~

Court decided that Gitmo was not Mars and it was

part of the American legal system as far·as habeas corpus
relief, you are confident that this working group now
headed by the Navy is going to come up with some due
process standards that will meet international scrutiny?
Judge Gonzales.

Well, I am not sure it will meet

international scrutiny, Senator.

What

I

can say is based

upon what I've been told by the lawyers at the Department,
what is in place now at Guantanamo should meet our legal
obligations as described in the recent Supreme Court cases.
Senator Graham.

And maybe the word Ilinternational

scrutinyll was a bad word, trying to say that there is a·
French standard that I am trying to adhere to, and that is
not it.

The point is that the world is watching.

Judge Gonzales.

Senator, if I might just comment on

that, because I want to emphasize to the Committee how
important I think treaties like Geneva are for America,
because they do represent our values.

And in many way and

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at many times they have protected our troops.

And it is

true that part of winning the war on terror is winning the
hearts and minds of certain communities.

And to the extent

there is a perception--and I think it's a wrong perception,
but there's a perception out there that as a matter of
policy the United States is ignoring its legal obligations,
1 think it makes it more difficult to win the hearts and
minds of certain communities and, therefore, more difficult
to win the war on terror.
Senator Graham.
tgought

p~ocess,

That is encouraging to me,

but it is not enough,

I

am afraid, to talk

about it unless there are deeds to follow.
suggest-~and

we do

hav~

~hat

So what I would

this is one junior Senator suggesting--is that

an international image problem, partly unfair,

partly of our own making, that it would serve us well to
maybe get Congress involved, maybe not through legislation
but to try to form. some working environment where we can
have input, you can tell us what you think, we can tell you
what we think, and the world can see that our country is on
the road to correction.

I would encourage you to include

us where you think we can be

fai~ly

included to make sure

that what comes out as the new policy at Gitmo is something
that kind of achieves the best ot who we are and still

aggressively fights the war on terror.

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Senator Kennedy.

Mr. Gonzales, on March 19th, the

Office of Legal Counsel provided you with a memorandum to
allow the CIA to relocate certain prisoners from Iraq for
the purpose of "facilitating interrogation."

The memo

interprets Article 49 of the Fourth Geneva Convention which
prohibits the forcible transfer or deportations of
protected persons from occupied countries like Iraq, and
violations of Article 49 are considered to be grave
breaches of the Convention and thereby constitute war
crimes under our Federal law.
The cover letter from OLC states that the legal
opinion was requested by Judge Gonzales.

In the newspaper-

-I do not know whether it was the Times or the Globe or
Post--one of them reported that one intelligence official
familiar with the operation said the CIA had used the March
draft memo as legal support for secretly transporting as
many as a dozen detainees out of Iraq in the last 6 months.
The agency has concealed the detainees from the
International Committee of the Red Cross and other
authorities, the official said.

In other words, this

memoranda is being used to justify the secret movement and
interrogation of ghost detainees.
In his report on the prisoner abuse at Abu Ghraib,
General Taguba--and as I mentioned, the members of the
Armed Services Committee listened to General Taguba testify

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on this very subject matter--criticized the CIA practice of
maintaining ghost detainees as deceptive--this is General
Taguba--saying that the policy of, the CIA maintaining ghost
detainees in Iraq is deceptive and contrary to army
doctrine and in violation of international law.
Do you agree or disagree with General Taguba's view of
the practice?
Judge Gonzales.

Senator, I have not reviewed this

opinion in quite some time.

I believe based on--1 believe

that we are honoring our legal obligations with respect to
these detainees.

There was a concern that by the

application of Geneva that terrorists would come into' Iraq
and we would create a safe haven for them, and that·s why
the opinion was solicited, so that we would not create such
a safe haven for al Qaeda, who are not entitled to prisoner
of war legal-protections.

But in terms of the actual facts

or specifics of what is actually being done, I don't have
any knowledge about what the CIA or DOD is doing.

Arid I am

presuming--again, I don't have any knowledge--that they
have solicited legal advice as to what constitutes--what
would constitute a violation of our legal obligations.
Senator Kennedy.

Well, the memo applies to protected

persons, as I understand it.

As I understand. it was the

CIA that actually requested you to request the memoranda,
and I think any logical conclusion one would draw is in

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order to protect their agents from being prosecuted.

At

least that would certainly be my conclusion.
Now, this is what the memoranda·from the Office of
Legal Counsel interprets Article 49 of the Geneva
Convention.

The Geneva Convention states, "Individual or

mass forcible transfers as well as deportations of
protected persons from occupied territory to the territory
of the occupying power or to that of any other country,
occupied or not, are prohibited, regardless of their
motive."

And in spite of the clear and unequivocal

language of the provision, the OLe concluded that Article
49 does not, in fact, prohibit the temporary removal from
Iraq of protected persons who have not been accused of a
crime to reason that both the words "deportations" and
"transfers" imply a permanent uprooting from one's home,
and that because a different provision in the Fourth Geneva
Convention prohibits the relocation of persons accused of
crime, it follows that persons who aren't accused of crime
may be temporarily relocated for interrogation.
Do you believe that this legal advice is sound?
Judge Gonzales.

Senator, I really would like the

opportunity to re-review this memo.

My recollection is

that this was a genuine concern, that we had members of al.
Qaeda intent on killing Americans flooding into, coming
into Iraq, and the question was legitimately raised in my

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judgment as to whether or not--what were the legal limits
about how to deal with these terrorists.

And I believe--

certainly that opinion represents the position of the
executive branch.
Senator Kennedy.

Well, do you know why the request

came from the Agency?

Why did the request come from the

CIA?

Do you know why they requested this?

explain why they wanted it?

Did they

And do you remember what the

CIA actually asked for?
Judge Gonzales.
Senator Kennedy.

I do not, sir.
The language--and I will move on--

from the OLC clearly contradicts the plain language of the
Convention.

And there are many that conclude that this was

in order to allow the CIA to engage in the unlawful
practice.
Did you form any opinion about the whole policy of
ghost detainees, the fact that the CIA was moving
individuals, ghost detainees around to different prisons in
different parts of the world in terms of interrogating
them, as was found and mentioned in the Taguba report and
in the Red Cross reports?

Have you drawn any personal

conclusions yourself as to whether this was sound policy or
whether it contradicted the Geneva Conventions?
Judge GOnzales.

Quite candidly, Senator, my objective

as the Counsel to the President would be to'try to ensure

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that questions were being asked as to whether or not what
kind of conduct someone felt was appropriate or necessary
was, in fact, lawful.

And I don't think I would have

considered it my role necessarily to second-guess whether
or not that represented a good policy judgment.
Senator Kennedy.

Well, it does appear to some that

the CIA is looking out and asking, you know, for the legal
authority to do whatever they want to do and be protected
from war crimes and other kinds of prosecutions and
protections by the Commander-in-Chief provisions.

That

certainly has been a conclusion that has been drawn by many
authorities, and it certainly would appear that way to
many.
Judge Gonzales.

Sir, if I may, that is the reason why

we categorically rejected it, that analysis, when the
existence of the memo became public, because we were
concerned that someone might assume that, in fact, the
President was exercising that authority.

That has never

been the case, and we have said that there has been no
action taken in reliance upon that authority.
Senator Kennedy.

Well, you know, we hear now about

the recent decision and judgment that was made recently in
terms of the Bybee memo.

But

I

asked you at the end what

you have done about this since it is

80

offensive.

Clearly

you have to feel that given the fact the administration

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does that it is not longer operative.

And I was

interested, since it wasn't, what was done with the Agency
and what was done with DOD.

And then

I

asked just at the

end what you were going to do with the FBI should you be
appointed, and you indicated that with the FBI you are
going to consult, find out the facts, and take action.
But

I

am just

w~ndering

what you have done to

implement the more recent decision to say that this Bybee
memo is no longer operative since it continues to be a part
of the working document that has been made available to
DOD.
Judge Gonzales.

Sir, as far as I'm concerned, the

December 30th opinion from the Office of Legal Counsel
represents

t~e

. !

executive branch position with respect to

the interpretation of the anti-torture statute.
1 OLC memo has been withdrawn.

The August

Xt has been rejected and

does not represent the position of the executive branch.
Senator Kennedy.

That is your position now, but when

you first saw it and for a 2-year period when it was in
effect, you did not object to it, as I understand.
Judge Gonzales.

Sir, there was, of course, as with

many decisions, tough legal decisions, discussions between
the Department of Justice and the Counsel's Office.
Ultimately, as live said repeatedly during this hearing, it
is the responsibility of the Department of Justice to make

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the final call.

Ultimately, it is their decision as to

what the'law requires.

And it was accepted by us as the

binding interpretation of that statute.
Senator Kennedy.

If I could come back to the

unprecedented expansion of executive power contained in the
aybee mem?, which you seem to have adopted at the time it
was issued, so we are clear, the Bybee memo concluded that
the law of the land cannot prevent the President from
carrying out his Commander-in-Chief authority in any way he
sees fit, even if the directives and actions violate
clearly established law.
Judge Gonzales.

Senator, that old opinion, as I've

said, has been withdrawn.

That analysis has been rejected,

and I consider it rejected.
Senator Kennedy.

But at the time when you first saw

it, it still was put into--it was effectively the law of
the administration's position for some 2 years.
Judge Gonzales.

Well, that certainly reflected the

position of the Office of Legal Counsel, but, again, let me
re-emphasize that that authority was never exercised.

As

far as I know, the President was never advised of that
authority.

And so no actions were taken in reliance upon

that authority ..
Senator Kennedy.
exercised it.

That has been repealed.

He hasn't

Your view whether it is legitimate, whether

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it is a legitimate statement of fact.
Judge Gonzales.

Sir, respectfully, it doesn't

represent the position of the executive branch.
Senator Kennedy.

I

underst~nd

-that, but it did for a

period of time, and I was just interested in what your view
on that is as a 'legal issue.

It has important implications

in the separation of powers.

It has very important

implications on it.

We are entitled to understand your

view about the separation of powers.

This has very

important implications on it, and that is why I am asking
the question.
Judge Gonzales.
thank you.

Sir, and I appreciate that, Senator,

Whether or not the President has the authority

in that circumstance to authorize conduct in violation of a
criminal statute is a very, very difficult question, as far
as I'm concerned.

And I think that any decision relating

to this line of reasoning would be one that I would take
with a great deal of seriousness, because there is a
presumption that the statutes are, in fact, constitutional
and should be abided by. ' And this President does not have
a policy or an agenda to execute the war on terror in
violation of our criminal statutes.
Senator Kennedy.

Let me move on.

The Bybee memoranda

made up out of whole cloth a necessity defense for torture.
It argued that such a defense is viable because Congress

,I
I

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did not make a determination on values vis-a-vis torture.
However, the Congress categorically banned,the torture when
it enacted the statute in 1994.
Torture, which the

u.s.

The Convention Against

ratified in 1994, specifically

states that no exceptional circumstances whatsoever,
whether a state of war or threat of war, internal political
instability, or any other public emergency may be invoked
as a justification of torture.
What did you think when you read the memoranda's
section on the necessity 'provision?

Did you realize right

away that this was bad law and bad guidance for our
military and intelligence?
Judge Gonzales.

Sir, I don't recall today my reaction

to the line-by-line analysis in that opinion.

What I did

realize. being a former judge, trying to interpret a
statute that may not be as clear as one would normally want
to see on an issue this important, was that that was an
arguable interpretation of the law.

They were relying upon

the definition of severe physical pain in other statutes
passed by the Congress.

And I'm sure we had discussions

about it, and ultimately it was accepted because that was
the ultimate decision and position of the office of Legal
Counsel'.
Senator Kennedy.

Well, just to reach the conclusion

that torture must involve the kind of pain experienced ,with

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death or organ failure, toe Bybee memo relied on unrelated
Federal statutes that define emergency medical conditions
for purposes of avoiding health benefits, Medicaid statute.
I have gone through it.
this.

I am not going·to take the time on

But that is how far they went.
As the revised OLe memo on December 30th--

Senator Kennedy.

As I mentioned on reaching the

torture, the OLC used actually the Medicaid standard on
health benefits, which is completely unrelated to the whole
questions on torture.

Now, as the revised OLC memo of

December 30th explains, the statutes relied on by the Bybee
memo do not define severe pain even in that very different
context, and so they do not state that death or organ
failure or impairment of bodily function caused seyere
pain.

Clearly, the reasoning was unsound, and

I

guess what

we conclude at this time, I would have thought it would be
fairly obvious to you that someone can suffer severe
physica~

pain without being in danger of organ failure.

When I hear this kind of activity, I always remember
meeting President Duarte of El Salvador, and when he was in
prison, what they did is cut off a joint every week of his
fingers.

When he shook hands with you, he had four parts

of fingers that were left on that part.

But every week

they used to tell him--they would leave it unattended.

It

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got infected and caused him enormous kinds of health
hazards on these parts.

But I am always mindful about what

I have seen with some individuals, as one, like others in
this Committee, Republicans, who care about human rights
and the excesses that have taken place.
The question that I have is:

Wasn't it obvious to you

that someone can suffer severe physical pain without being
in danger of organ failure?

Wouldn't the removal of

,fingers, for example, fall outside the definition of
torture and why we wouldn't have expected that you wouldn't
have raised some kind of objection to it?
Judge Gonzales.

Senator, if I may answer your

question, I don't recall reading that analysis to conclude
that it would have to be that kind of pain in order to
constitute torture.

Obviously, things like cutting off

fingers,. to me that sounds like torture.
Let me just remind you, Senator, that the Office of
Legal Counsel was trying to interpret a statute written by
the Congress.

The Foreign Relations Committee, in making

recommendations to the Congress regarding ratification of
the Convention Against

T~rture,

described torture as the

top of the pyramid in terms of inflicting pain upon a human
being.

It described it, the Committee described torture as

extreme cruel, extreme inhumane, extreme degrading conduct.
This is what the Congress said.

And I think the people at

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the Office of Legal Counsel were simply doing their best to
interpret a statute drafted by Congress.

Senator Leahy.

One, I was glad to hear you say--and

correct me if I misunderstood

you~-to

Senator Durbin that

it is wrong if a u.S. personnel turns somebody over to
another country knowing they are going to be tortured.

Did

I understand you correctly on that?
Judge Gonzales.

I

believe that is a law.

That's

certainly u.S. policy.
Senator Leahy.

And so they would be prosecuted,

people who did that.
Judge Gonzales.
Senator Leahy.

Yes.
Now, President Bush signed a

memorandum on February 7, 2002, which went through you, in
which he directed u.S. armed forces to treat al Qaeda and
Taliban prisoners humanely.

You have said publicly this

was the only formal written directive from the President
regarding treatment of detainees.

Is it your testimony the

President has issued no other directive regarding the
treatment of detainees?

It is not a trick question.

I

want to make sure you understand it very clearly because
you are under oath.

My question is meant to include a

directive in any form, to any government personnel,
regarding any category of detainee from any theater of

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operations, regarding any aspect of detainee treatment,
including interrogation.
JUdge Gonzales.

Senator, I don't have any firsthand

knowledge about the President giving directions regarding,
say, specific

tec~iques.

That was not--in my judgment, in

the schlesinger report, he concluded it would be sort of
out of the

quest~on

to expect the President would be

involved in making individual determinations-Senator Leahy.

lam just going by your statement

publicly that this was the only formal written directive
from the President regarding treatment of detainees.

Do

you have any firsthand or secondhand knowledge of any other
directive?
Judge Gonzales.

Sir, other than the directive by the

President that we're not going to engage in torture and
that we're going to abide by our legal obligations,

I'~

not

aware of any other directive by the President.
accusations that that is happening to the Department.
Senator Leahy. .

The reason I used that example

is like Abu Ghraib in a sense that the administration knew
about this torture.

They have been asked questions by me,

by Republican Senators and others that they refuse to
answer about the torture before it became public.
said, oh,. my gosh, this is horrible.
torture or anything else.

Nobody

We're all against

When the pictures started

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appearing on the front page of the newspapers or on
television, then everybody scrambles around and takes memos
and policies that have been in place for some time, and
they start changing it.

We have talked about the memo on

torture that was changed at the beginning of a three-day
weekend just before New Year's, coincidentally, just before
your coming here to testify . . . .
Here is a softball for you.

When he announced your

nomination, the President rioted that your sharp intellect
and sound

judgmen~

war on terror.

have helped shape our policies on the

Looking back on that, were any mistakes

made, and were they corrected?
Judge Gonzales.

Any mistakes made in the war on

terror?
Senator Leahy.

Involving you, and were they

corrected?
Judge Gonzales.

Involving me, Senator, I will be the

first to admit I am not perfect, and I make mistakes.
Senator Leahy.

Glory, hallelujah, you are the first

one in the administration who has said that.
Judge Gonzales.
mistakes.

Hopefully, I learned from those

I think I have learned during these past four

years Washington is 'a different type of environment than
the one I am used to.
Yes.

And could I have done things better?

And hopefully I have grown and I have learned.

I

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think if confirmed it will make me a more effective
Attorney General for the people of this country.

Senator Cornyn.

. . . . I know Senator Kennedy was

asking about the memo, I believe it was a draft Qf March
19th, 2004.

This was the memo that was I guess leaked

regarding permissibility of relocating certain protected
persons from occupied Iraq.

It was leaked, was it not?

Judge Gonzales.

I believe that's correct.

Senator Cornyn.

I will just go back to what I said

earlier about very few secrets in Washington, D.C., and I
,

guess this helps to--is further evidence of that.
me just ask.
Judge

But let

r see this is a draft memo; is that right?

Gonzal~s.

Senator Cornyn.

I believe that is correct.
So it was not a final determination

or a final statement of policy or a final legal conclusion,
was it?
Judge Gonzales.

The draft is a draft.

Senator Cornyn.

I also see that the last footnote of

the draft--and of course lawyers like footnotes, but they
are important--says that protected persons "ordinarily
retain Convention benefits."

So I guess in a strict sense

these are not ghost detainees because the conclusion at
least of this draft is that they retain, essentially retain
protections under the Convention.

Would you agree with

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that?
Judge Gonzales.

I believe so, Senator, but I would

want the opportunity to look at that again before agreeing
without any kind of reservation.
Senator eornyn.

Fair enough.

That just struck me as

a contradiction with the suggestions we had heard earlier
that somehow that this is a lawless enterprise, that indeed
the conclusion at least of the draft was that ordinarily
these detainees retain Convention

b~nefits.

You know, you were asked

Senator Sessions.

about saying some of the language of the Conventions are
quaint.

I remenlber when I was in law school at Alabama, my

wife and I lived at Northington Campus, and that was'where
the German prisoners of war were held.
had much more than a fence.

I do not think they

They had a recreation grounds.

r am told that they interfaced with the people in the
community, and even went to church and played the organ or
sang in choirs.
But this is a different type of prisoner from the
World War II group that we were looking at, and we do need
to--some of the things are not quite as logical, such as
guaranteeing them scientific instruments or giving them
pay, paying them while they are prisoners, or athletic
equipment and clothes.

But I guess also the President--and

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you have been with

him-~feels

deeply the responsibility he

has and had during this post 9/11 time to protect the
American people.

That had to be on his mind whenever he

made a decision.

Is that correct?

Judge Gonzales.

That was his number one objective.

Senator, to do so, consistent with the legal obligations of
this country.
Senatqr Sessions.

And I know that in October of this

past year, we released close to 150 detainees at Guantanamo
Bay.

I guess ACLU or somebody sued over'that or whatever,

and they were released.

Here are some of the headlines

that have occurred since.

"Freed detainees rejoin fight;

Ten ex-Guantanamo inmates have been caught or killed,"
headline in the Washington Post of October 2004.
"Detainees back in battle.

At least eight ex-Guantanamo

inmates fighting again in Afghanistan." Pittsburgh Post
Gazette.

"Ten freed from CUba return to fighting," Chicago

Tribune.

"Freed detainees return to jihad, at least 10

militants captured or killed Gitmo captors of intent,"
Orlando Sentinel.
So it is easy to say why do we not just err in the
side of being lenient and let people go-, but you knew and
the President knew and the people

supe~ising

Guantanamo

Prison knew that there were risks when you did that; is
that not true?

And that makes you cautious?

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Judge Gonzales.

Of course, Senator, we don't want to

detain anyone that shouldn't be detained, and not for a
minute longer than we need to detain someone.

There are

multiple screening processes in place with respect to
detainees that go to Guantanamo.

There are multiple

screens when they are captured, when they're moved into
Bagram into a central holding facility.
scre~n--r

There's a multiple

mean there's a screen with respect to deciding

whether or not they should go to Guantanamo.

Then when

they arrive at Guantanamo, there's an additional screen to
see whether or not they should be at Guantanamo.
there are annual review screens.

And then

We've now implemented a

process to ensure that if we no longer need to hold
someone, that we should release them.

But it is true that

some have been released that we've now discovered have come
back to fight against Americans, and that of course is the
danger.

We obviously don't want to hold anybody longer

than we have to, but we don't want

to~be

releasing people

that are going to end up killing American soldiers.

So

it's been a challenge.

r think the good people within DOD have exercised,
have addressed that challenge in the very best way they
can.

It hasn't worked perfectly, but they've done a good

job in my judgment.
Senator Sessions.

And by the way, this was a

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Department of Defense decision, is that correct, on
releasing there at Guantanamo?
Judge Gonzales.

Oh, of course .. That's not a decision

made by the White House.

That would be a decision

ultimately made by Department of Defense.
also consult with the CIA.

But they would

They would also consult with

the Department of Justice to see whether or not those
agencies had any information about the detainee.

And so it

would be a collaborative effort to gather up the
intelligence information about a detainee, but ultimately
the Department of Defense would make the decision that this
is someohe that it would be okay to go ahead and release.
Senator Sessions.

Well, you did not run the

Department of Defense or have any supervisory control over
anybody at the

Depar~ment

Judge Gonzales.
Senator Sessions.
rearrested.

of Defense, did you?

Absolutely not.
Now, of course, so we have 10

I think we can logically conclude that more

than 10 have returned to terrorist activities, they just
have not been caught, maybe twice or three times that many.
So that is a pretty good number out of the 150 we took a
change on releasing, who have returned to the battlefield.
They were released while the war is continuing.

And I just

want people to note that this is not just an academic
exercise.

Lives are at stake.

You had to make tough

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decisions and recommendations to the President.
President had to make them.
them.

The

Secretary Rumsfeld had to make

He let some of these go, and some of them returned

to battle right away, and we know that is true.

Chairman

~pecter.

Just one question about the so-

called Bybee memorandum, and it is do you agree with the
statement in the memo, "Congress may no more regulate the
President's ability to detain and

interroga~e

enemy

combatants than it may regulate his ability to direct troop
movements on the battlefield"?
Judge Gonzales.
Chairman Specter.

I reject that statement, Senator.
You reject that statement.

Do you agree with the decision by

u.s.

District Judge

James Robertson, handed down on November 24th of this year,
when he stopped the military

~ribunal's

ruling that

detainees' rights are guaranteed by the Geneva Conventions?
Judge Gonzales.

Sir, I haven't studied the rulings.

That decision is on appeal.

I believe, generally, we

respectfully disagree with the judge.
Chairman Specter.

Do you believe that the CIA and .

other governmental intelligence agencies are bound by the
same laws and restrictions that constrain the operations of
the U.S. armed forces engaged in detention and
interrogations abroad?

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Judge Gonzales.

Certainly, some of the laws, sir.

UCMJ, for example, would be a limitation on military forces
that would not be applicable to the CIA.
Chairman Specter.

Well, in what circumstances would

the CIA have a broader latitude?

Why do you not think

about that one and give us a response in writing.

That is

a fairly involved question.
Judge Gonzales.
Chairman Specter.

I appreciate that, Mr. Chairman.
Do you support affording the

International Committee of the Red Cross access to all
detainees in U.S. custody?
Judge Gonzales.

As a general matter, I very much

support the work of the Red Cross and, as a general matter,
would agree that they should.be provided access.

I think

the Red Cross serves a very, very important function.

They

have, in the past, been responsible for the safe treatment
and health of U.S. soldiers who are captured by our enemy
and so, yes, as a general matter, that is true.
Chairman Specter.

Your answer is, yes, to that

question.
Judge Gonzales.

As a general matter, yes, sir.

Senator Cornyn.

I neglected earlier, when I was

asking about the written response to the document request
that Senator Leahy had made to the White House, I neglected

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to ask unanimous consent that the three letters that were
written, I believe authored by David Leitch, in response to
Senator Leahy's request, dated December the 17th, 30th, and
January the 5th, be made part of the. record.

Senator Leahy.

If we might, could we, also, then put

as part of the record my response letter, pointing out that
those were not responsive and my concern that those letters
were not responsive.
Chairman Specter.

I would offer, for the record, a

letter to me, dated December 26th, 2004, from the Committee
of Concerned Philadelphia Rabbis.

Our first witness, in alphabetical order, is Dean John
Hutson . . . . , dean and president of the Franklin Pierce
Law Center in Concord, New Hampshire .. Dean Hutson has a
record as a rear admiral, a graduate of the University of
Minnesota Law School, and has had a long and distinguished
Naval career, including being the Navy's judge advocate
general during the administration of President Bill
Clinton.
STATEMENT OF JOHN D. HUTSON,' DEAN AND PRESIDENT OF
THE FRANKLIN PIERCE LAW CENTER, CONCORD, NEW
HAMPSHIRE
\.,

Admiral Hutson.

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As

Americans, we have been given.many gifts by our

creator and our forbearers, and we hold these gifts in
trust for our progeny and for mankind, generally.
these gifts is great military strength.

One of

This military

prowess is enhanced by our legacy of our strong advocacy
for human rights for all human beings by virtue of their
humanity alone and by our long history of unwavering
support and adherence to the rule of law.
These gifts come with a string attached.

Like all

gifts, there is a responsibility to husband them.
not squander them; rather,

~e

We must

must. nurture 'them, refine

them and pass them on in even better condition than they
were given to us.

Generations of Americans have understood

this responsibility and have accepted it.
In the wake of World War II, Truman, Eisenhower,
Marshall, Senator Vinson and others fulfilled their part of
that sacred trust.

They had seen the horror of war, a

horror that few of us have seen, but have only read about.
They responded with programs like the Marshall Plan and
with international commitments like the Geneva Conventions.
I believe that the Geneva Conventions are part of our
legacy not unlike the Bill of Rights, the Fourteenth
Amendment, and Brown v. Board of Education.

They

demonstrate the goodness of the United States.
demonstrate our strength and our military might.

They also
Even in

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the midst of that most awful of human endeavors--war--we
should treat our enemies humanely, even when we have
captured them.
weakness.

To do so is a sign of strength, not

To. not do so is a sign of desperation.

I come here to speak in opposition to the confirmation
'of Judge Gonzales because he appears not to understand
that.

He finds the Geneva Conventions to be an impediment,

a hindrance to our present efforts, quaint and obsolete in
important respects.

His analysis and understanding of the

Geneva Conventions, which I discuss in detail in my written
statement, is shallow, shortsighted and dangerous.

It is

"

wrong legally, morally, diplomatically, and practically.
It endangers our troops in this war and future wars, and it
makes our Nation less safe.
My 28 years in the Navy tells me that his analysis of
the Geneva Conventions and their applicability to the war
in Afghanistan and the war on terror is particularly
disturbing because it indicates an utter disregard for the
rule of 'law and human rights.

Those are the reasons

American fighting men and women shed their blood and why we
send them into battle.

But if we win this battle and lose

our soul in the process, we will have lost the war, and
their sacrifices will have been for naught.
The Geneva Conventions have protected American troops
from harm for many years.

Our forces are more forward

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deployed than any other Nation's in terms of numbers of
deployments, locations to which they are deployed, and the
number of forces deployed.

This has been the case since

World War II and will continue to be true.

Because of that

there is no country for which adherence to the rule of law'
and to the Geneva Conventions is more important than it is
to the United States.

It is our troops that benefit.

The

original U.S. proponents of the Conventions saw them as a .
way to protect U.s. troops from the enemy not the

enemy

from U.s. troops.
It is not good for our military if we now throw them
over the side just because some people believe they are
inconvenient to the present effort.
present war.

It is not the last war.

This is only the'
It is not even the

next-to-last war.
Another important aspect of the Geneva Conventions is
that it prepares us for the peace that will ensue.

We

cannot so alienate our allies that they will not fight
alongside us again nor should we embitter our enemies so
that they will fight on longer and harder than they
otherwise would or be unwilling to relent, even though
their cause is hopeless.

Abrogating.the Geneva Conventions

imperils our troops and undermines the war effort.
encourages reprisals.

It

It lowers morale.

I believe that the prisoner abuses that we have seen

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in Iraq, as well as in Afghanistan and Gitmo, found their
genesis in the decision to get cute with the Geneva
Conventions.

At that point, it became a no-holds-barred

i
I

unlimited warfare not just in Abu Ghraib, but around the
country~

I,

remind the Committee that we are conducting 40

or more death investigations in the course of the war on
terror for detainees at the hands of their U.S. captors.
Our military doctrine has long been, and I quote from
the Department of the Army pamphlet, "The United States
abides by the laws' of war in spirit and letter.

Cruelty on

enemy prisoners is never justified."
Twenty-eight years in the military taught me there are
two indispensable aspects to military good order and
discipline.

They are the chain of command and the concept

of accountability.

Accountability means that you can

delegate the authority to take an action, but you may never
delegate the responsibility for that action.

Young, fresh-

caught judge advocates know that Government lawyers cannot
hide behind their adviser role to evade accountability for
the actions that they recommend.
The value of the chain of command is that what starts
at the top of the chain of command drops like a rock down
to the bottom of the chain of command, and subordinates
execute the orders and adopt the attitudes of- their
superiors in the chain of command.

It has always been

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thus, and that °is the way we want it to be.
Government lawyers. including Judge Gonzales, let down
U.S. troops in a significant way by their ill-conceived
advice.

They increased the dangers that they face.

At the

top of the chain of command, to ooin a phrase that we have
heard in the past, they set the conditions so that many of
those troops would commit serious crimes.

Nomination to

Attorney General is not accountability.
Only recently, in the face of the confirmation
process, has the administration attempted to undo the
damage.

I have three thoughts on that:

One is that I applaud the administration for doing
that.
The second is that it is a little late.

We have had

several years under the other policy.
And last is that

I

do not see this as an exoneration

of Judge Gonzalesj rather, it is somewhat of an indictment.
It is an acknowledgment of error.

Damage has been done,

but it is never too late to do the right thing.

If Judge

Gonzales goes on to be the chief law enforcement officer in
the United States after his involvement in this, we will
have failed to undo a wxong, but will have only exacerbated
it.
We are at a fork in the road.

Somewhat ironically.

this nomination has given the United States Senate an

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opportunity to tell the world what you think about those
issues.

What you do here will send a message, good or bad,

to the world and, importantly, to American armed forces and
fighting men and women.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hutson follows:]

i

i

I
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STATEMENT OF DOUGLAS A. JOHNSON, EXECUTIVE
DIRECtOR, THE CENTER FOR VICTIMS OF TORTURE,
MINNEAPOLIS, MINNESOTA
Mr. Johnson.
Although there are different physical symptoms
associated with the form of torture they

~ndured,

there is

a remarkably common pattern of profound emotional reactions
and psychological symptoms that transcends cultural and
national differences.

The effects can

inclu~e,

but are not

limited to, besides organ failure and death, emotional
'numbing, depression, disassociation, depersonalization,
atypical behavior, such as impulse control problems and
high-risk behavior, psychosis, substance abuse,
neurophy~iological

impairment such as the loss of short-

term and long-term memory, perceptual difficulties, the
loss of ability to sustain attention or concentration and
the loss of the ability to learn.

The main psychiatric

disorders associated with torture are post-traumatic stress
disorder and major depression.
While it is important to recognize that not everyone
who has been tortured develops a diagnosable mental
disorder, it is equally important to recognize that for
many survivors the symptoms and aftereffects of torture
endure for a lifetime.

Torture is said to be one of the

most effective weapons against democracy as survivors

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usually break their ties with their community and retreat
from public life.
Now, the memorandum written by and also apparently
solicited by White House Counsel Gonzales are replete with
legal errors, which the other two members of the Committee
will describe, but also, we believe, with political
miscalculations and moral lapses.

They disregard the human

suffering caused by torture and inhumane treatment.

They

are based on faulty premises, even fantasies about the
benefits and payoffs of torture.
all of these

memo~andum

What is striking about

is the lack of the recognition of

the physical and psychological damage of torture and
inhumane treatment.
The assumption behind the memoranda, and particularly
the Bybee memorandum, and the later Report of the Working
Group on Interrogation, is that some form of physical and
mental coercion is necessary to get information to protect
the American people from terrorism.

These are unproven

assumptions based on anecdotes from agencies with little
transparency, but they have been popularized in the
American media by endless repetition of what is called a
ticking time bomb scenario.
Based on our 'experience at the center with torture
survivors and understanding the systems in which they have
been abused, we believe it is· important that these

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discussions not be shaped by speculation, but rather
through an understanding of how torture is actually used in
the world.

From our understanding, we have derived eight

broad lessons.
And those are,.first of all, torture does not yield
reliable information;
Secondly, torture does not yield information quickly;
Third, torture has a corrupting effect on the
perpetrator;
Fourth, torture will not be used only against the
guilty;
In fact, fifth, torture has never been confined to
narrow conditions.

Once it is used, it broadens.

Psychological torture results in long-term damage:
Stress and duress techniques are forms of torture:
And, finally, number eight, we cannot use torture and
still retain the moral high ground.
The cost to America of abandoning strict opposition to
all forms of torture are far-reaching; from the
disillu~ionment

and fear of individuals, on the one hand,

to complications in our ability to conduct foreign policy
on the other.

It is up to all of us, as Americans, but

particularly to members of the Senate and to U.S. Attorney
General, to be clear that torture is a line we will not
cross under any circumstances or for any purpose.

It is

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imperative that the Attorney General is in agreement with
American values and will use the full scope of American and
international law to prevent torture and prosecute
torturers.
To that end,

I

respectfully calIon the Senate

Judiciary Committee to keep torture on its agenda and to
require a routine report from the Department of Justice on
its work to stop and prevent the use of torture.

I

ask the

Committee to be vigilant in your oversight until it is
clear, in both our tacit and explicit policies, and in our
actions, that the U.S. is back on course and is in full
compliance with national and international law and American
values.
When speaking on the Senate floor in support of
ratification of the Convention Against Torture, Kansas
Senator Nancy Kassebaum said, "I believe we have nothing to
fear abut our compliance with the terms of this treaty.
Torture is simply not accepted in this country and never
will be. 1t
Let us also make it true today.
Thank you.
[The prepared statement of Mr. Johnson follows:]

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Chairman Specter.

We now turn to Dean Koh, the dean

of the Yale Law School, having been named there earlier,
well, in July of last year.

He has taught at the Yale Law

School since 1985 in international law, served as assistant
secretary of state, was a U.S. delegate to the United
Nations Human Rights Commission and the U.N. Committee on
Torture.
STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C.
AND BERNICE LATROBE SMITH PROFESSOR OF
INTERNATIONAL LAW, YALE LAW SCHOOL
Mr. Koh.

As I mentioned, I have twice been in the

U.S. Government.

I served in the Clinton administration as

the assistant secretary for

~uman

Rights.

But previously I

was in the Reagan administration as an attorney at the
Office of Legal Counsel, which is the very office which has
generated these memoranda.
Let me say that I do not appear today to advise you on
how to vote.

Your decision as to whether this candidate

deserves confirmation turns on many "factors on which you
are the experts and may involve qualifications and
positions that I have not reviewed.
But I do appear today because I want to comment on Mr.
Gonzales' positions regarding three very important issues.
I think these are issues of the highest significance in
American life, and these are issues on which I do have

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legal expertise and Government experience.
They are, first, the clear and absolute illegality of
torture and cruel, inhumane and degrading treatment;
Second, the nonexistence of the President's
constitutional powers to authorize torture and cruel
treatment by U.S. officials--what Senator Leahy has been
calling the Cornmander-in-Chi'ef override.

r't does not exist

as a matter of constitutional law;
And, third, the broad applicability of the Geneva
Conventions on the laws of war to alleged combatants held
in U.S. custody.

This broad applicability has been for the

benefit of our soldiers.

The more that we ensure broad

applicability of the conventions to others the more our own
soldiers are entitled to protection.
With regard to each of these, I
position is clear.

t~inkthe

legal

As Attorney General, Mr. Gonzales has

said that his first allegiance would be to uphold the
Constitution and laws of the United States.

That would

mean he would strictly enforce the laws banning torture, he
would strictly enforce the ratified treaties regarding
torture and the Geneva Conventions, and he wotlld ensure
that the President abides by· the constitutional principle
of checks and balances.

But I think more fundamentally he

has to assure that no one is above the law, including the
President, and'that no one is outside the law, whether they

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are an enemy combatant or held in a place like Guantanamo
or outside the United States.
And I think that there has been a concern raised about
Mr. Gonzales' record and which continues through the
hearing today.

It is that some of the statements he has

made and some of the things that he has tolerated have
created the impression that the President is'above the law
or that certain individuals live outside the law as
extralegal persons because they are called enemy combatants
or because they are being held in rights-free zones such as
Guantanamo.
Let me just address these three issues, starting first
with the torture memo--the Bybee memo.
As you mentioned, Senator Specter, I presented the
United States report on our compliance with torture in
Geneva in 1999 and 2000.

And at that presentation. I told

the United Nations. as a country, we are unalterably
committed to a world without torture.

We had cleared

through all the agencies at the U.S. Government a statement
of zero tolerance, of zero tolerance policy.

And the real

question is how did we move from the zero tolerance policy
of 2000 to the permissive environment that seems to have
been created in the last few years.
Now, I think the answer is partly shown by the Bybee
memo. and having worked in the Office of Legal Counsel. I

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am very sympathetic with the pressures that people are
under in drafting opinions like this.

Nevertheless, in my

professional opinion, as a law professor and a law dean,
the Bybee memorandum is perhaps the most clearly legally
erroneous opinion I have ever heard. ' It has five obvious
failures.
First, it asks, "How close can we get to the line,"
when, in fact, it is supposed to be enforcing a zero
tolerance policy.
second, the way that it defines torture would permit
many of the things that Saddam Hussein's forces did during
his time as not torture.

Just for example, the White House

website lists that beating, pUlling out of fingernails,
burning with hot irons, suspension from ceiling fans were
all acts of torture committed by Saddam Hussein's forces.
Nevertheless, under the Bybee memorandum, if they did not
cause serious organ failure or death, they would not
constitute torture.
Third, as I said, the memo grossly overreads the
President's constitutional power to order torture.

If the

President has a constitutional power to order torture in
the face of a criminal statute preventing it passed by
Congress, it is not'clear why he could not similarly order
genocide or other kinds of acts.
Fourth, the memorandum says that executive officials

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can escape prosecution if they carrying out the presidentts
orders as Commander-in-Chief.

This is the "following

orders It defense which was rejected in Nuremberg and is the
very basis of our international criminal law.
And, finally, an important point, the Bybee memo
essentially is very tolerant with regard to cruel, inhuman
or degrading treatment.

A convention against torture, and

cruel, inhuman and degrading treatment is read to-permit
various kinds of cruel, inhuman, and degrading treatment.
And even today there was some lack of clarity in Mr.
Gonzales' answer about whether

u.s.

officials are barred

from cruel, inhuman or degrading treatment.
I

think that" if this kind of reasoning is left

unchallenged, it could be used to justify atrocities of the
kind we saw at Abu Ghraib, where lower executive officials
felt a license to be cruel, inhuman or degrading to people
in their custody.
Now, some have said that the August 1st memo is a
lawyer setting out options for their client.

But I think,

as lawyers, those of you who have served know that if a
client asks a lawyer to do something

whi~h

is flatly

illegal, the answer is, no; not here is how we can justify
it.
So

I

believe that this is a stain on our law, a stain

on our national reputation, a legal opinion that is so

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contrary to a zero tolerance policy, which has a definition
of torture that would have exculpated Saddam Hussein, that
reads the Commander-in-Chief power to remove Congress as a
check on torture that turns Nuremberg on its head and that
gives Government officials a license to be cruel is wrong
from the beginning.
If the counsel for the President had received such an
opinion, you would have expected him to do at least one of
two things:

First, reject it on the spot and send it back

or, second, send it to other parts of the Government and
have them give a second opinion, particularly the State
Department, which I believe, following the policies in the
U.S. Report on the Convention Against Torture, would have
said that the opinion is flatly wrong.
Instead, what happened, as you heard, was that that
opinion was allowed

~o

become executive branch policy, was

incorporated into the DOD working group report, and
remained as executive branch policy for some two and a half
years, during which time I believe that a permissive
environment was inevitably created.
Now, 1 welcome the very strong statements that Mr.
Gonzales made in finally repudiating this analysis.

But I

think he also was begging the question of whether the parts
of the memo that were not explicitly replaced, namely about
the President's constitutional powers to order his

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subordinates to commit legal--to commit torture, should be
repudiated.

At the beginning of the testimony, Mr.

-Gonzales said those parts had been withdrawn; by the end,
he said he repudiated it.

I think he should say, I

rejected--r reject them because they are legally wrong and
they never should have been put out there in the first
place.

I do not think our Nation's chief law enforcement

officer should tolerate ambiguity on a matter that is so
central to our national values.

I think that Mr. Gonzales

should repudiate all elements of the memorandum, ask for
withdrawal of the Defense Department's working group
report, and I also agree with Mr. Johnson that it is a very
good idea to have a regular report ab9ut what we are doing
to root out torture within the executive branch.
With regard to the commander in chief power, a very
simple point.

The statement is made, "Any effort by

Congress to regulate the interrogation of battlefield
combatants would violate the Constitution's vesting of the
commander in chief power in the President.

1I

If that were

strictly true, large sections of the Uniform Code of
Military Justice would also be unconstitutional.

I think

that is an over-broad position, I do not think it is
sustainable as a matter of law, and I think it should be
repudiated definitively.
Remember that the Attorney General has a duty not just

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to serve his client, but to preserve the Constitution's
system of checks and balances •. I think that to ensure that
the President is not above the law, Mr. Gonzales should
repudiate the constitutional theory that is put out there.
A very simple question which you could have asked him today
was-Chairman Specter.

Dean Koh, your red light is on.

If

you would conclude your current thought, we would
appreciate it.
Mr. Koh.

A simple question you could have asked him

today is, Is the anti-torture statute constitutional?

If

the answer to that question is yes, then it cannot be
overridden by the President's commander in chief powers.
And the final thought, the Geneva Conventions, I
believe that this point has been made very well.

The

Geneva Conventions do apply broadly .. And the fact that the
administration chose, I think, through Mr. Gonzales's
recommendation not to apply the Geneva Conventions in
Afghanistan was an error which I think that Secretary
Powell properly challenged.
Chairman Specter. . . .

we could explore . .

the

issue of a so-called ticking bomb case on torture.
There are some prominent authorities . . . . that if
it was known, probable cause, that an individual had a
ticking bomb and was about to blow up hundreds of thousands

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of people in a major American city, that consideration
might be given to torture.

Judge Posner, a very

distinguished judge on the Seventh Circuit has commented
that this is worth considering, or perhaps even more
positively than that.

Professor Dershowitz has written

extensively on the subject, has come up with a novel idea
of a torture warrant.

And there runs through some of the

considerations on interrogation techniques, not to be
decided by the people at the base level but when dealing
with higher officials trying to get something out of the
ranking al Qaeda person, that an escalation of tactics
ought to be left to more mature authorities, perhaps even-well, higher authorities

in

the Federal chain of command.

The Israeli Supreme Court has opined on the subject by
way of dictum.

As they put it, recognizing in certain

circumstances Israeli interrogators may be able to use
torture--not saying they ought to, but those who do may be
able to employ the defense of necessity to save lives of a
so-called ticking time bomb or other such imminent threat.
Dean Koh, start with you.

Are considerations. for

those tactics ever justifiable even in the face of a
ticking bomb threat?
Mr. Koh.

Well, Senator, you are a former prosecutor.

I think that my approach would be to keep the flat ban, and
if someone, the President of the United States, had to make

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a decision like that, someone would have to decide whether
to prosecute him or not.

But I do not think that the

answer is to create an exception in the law.

Because an

exception becomes a loophole and a loophole starts to water
down the prohibition.
I think what we saw at Abu Ghraib is the reality of
~orture.

I have had the misfortune to visit many torture

dens in my life.

Many of them, I am sure, were justified

on emergency national security concerns, and at the end'of
the day, you have places where they are just places where
people are routinely mistreated.

And not for any broad

national security purpose.
Chairman Specter.

That sounds essentially like the

hypothetical question defense--if the President does it,
then it is a prosecution matter.

r do not know about that.

Dean Hutson, what do you think?

Ever?

On occasion?

To even consider that?
Admiral Hutson.
always illegal.

I agree with Dean Koh that it is

Now, you may decide that you are going to

take the illegal action because you have to, but two
points:

One is that that is not necessarily the situation-

.-or, not "necessarily,

II

it is not at all the situation we

are talking about here with Gitmo or Abu Ghraib or other
prisons .. There is no implication that there was a ticking
bomb anyplace.

The other is that you pose a question in

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which there is by definition in the question not sufficient
I

time to use more effective methods of getting information-the good guy/bad guy, rewards and punishments, those kinds
of things where you are much more capable of getting
valuable information.
A third difference is that, by the hypothetical,
are dealing with a particular individual.

y~u

You are not

dealing with 550 people at Gitmo or however many people at
Abu Ghraib.
question.

So that it is an interesting academic
We have all debated it.

But I do not think that

it is the sort of question that the Bybee amendment--or,
excuse me, the Bybee memo, for example, addresses.
Chairman Specter.

Dean Hutson, there is no doubt that

it was not involved at Abu Ghraib for any of the issues
which we have taken up.

But anybody who has watched on C-

SPAN since 9:30, we are off on a long day, might deserve a
little academic discussion even if 'it is only highly
theoretical.

And it is pretty tough to advocate torture

under any circumstances, even with a ticking bomb, so
understand the reticence of the witnesses because

I

I

can

have

the same reticence.
What are your views, Mr. Johnson?
Mr. Johnson.

Well, the Israeli Supreme Court

concluded that the necessity was a defense in prosecution,
it could never be turned on its head to be made a policy

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moving forward.
problem.

And of course the Bybee memo has the same

It takes a question of law about how to prosecute

someone for torture and turns it into proactive advice on
what is allowed and what is not.

And that is the moral

problem with that Bybee memorandum.
On the specifics of the ticking time bomb, I think
that it is very overblown in our imaginations and it is
very right with'what I could only call fantasy and
mythology.

The number one issue, as I said, is that

torture is unreliable to get information.
clients.
something.

We look at our

Nearly every client we ) had confessed to
They confessed to some crime, they gave up some

. i

,

information, they gave up the name of an innocent friend.
What they said was, I would do anything, I would say
anything to get

~t

to stop.

And one of the major problems

with torture from a,legal perspective, and especially from
an interrogation perspective, is it produces so much
extraneous information that it actually distracts from good
investigation.
But secondly, the second part of this which is often
the question of fantasy, is that we have to do it because
the bomb will go off in the next hour, and if I do not,
agree for the next hour, it wi+l go off in the next five
minutes--would you do it there?
make someone break.

It actually takes time to

It takes strategy to make someone

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break.

One of the very disturbing things I find in the

memorandum is to know that some· of the techniques that were
used in Gitmo, such as· water-boarding, were being used on
our own troops, supposedly to

t~ain

them to resist torture.

r have talked to American soldiers who have gone through
that training and who have been required to be engaged in
that kind of activity, and they tell me that it has taken
them 15 years of therapy to get over it.
So I am very disturbed to think that it is any part of
the practice of our soldiers at this point, in this day and
age.

But at the same time, we know it happens.

I know of

stories in Argentina, where supposedly the professional
criminals go through training to resist torture over the 48
hours they need before they get access to their lawyer.
Everything I have heard about the operational
sophistication and the commitment of al Qaeda would lead me
to believe that they go through the same training.

So the

notion that torture acts qUickly to deal with the ticking
time bomb is also a fantasy.
Chairman Specter.

Well, it may well be fantasy, and

we hope that it never arises.
Mr. Koh.

Senator, might I just add--

Chairman Specter.

Excuse me, r am in the middle of a

sentence, Dean Koh.
Let us hope it is fantasy.

And as we have examined

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interrogation techniques, we really have not gotten into
the subject matter today of the suspect as--or the

perso~

subject to interrogation as a relevant factor, or the
quality of the information that that person might have, or
the sophistication and judgment if it went to the Secretary
of Defense or the Under Secretary, where there is more time
to have an interrogation technique.

And let us hope that

no President ever has to face the decision or any official
at any level, but there are gradations and complications
here which do not provide any easy answers far beyond the
scope of what we have heard today.
My red light is on, so I ask no more questions.

But

you were in the middle of a sentence, Dean Koh.
Mr. Koh.

I was just saying that the new OLe opinion

of last week withdraws the necessity defense, and so it
would not function to per.mit the invocation of necessity as
a reason for torture.
Senator Leahy.
And Dean Koh, you heard JUdge Gonzales's testimony
today.

I asked him a number of questions regarding his

views of executive power.

I

asked him if he agreed with

the legal conclusion in the August 1, 2002, memo by
Assistant Attorney General Jay Bybee--the President has
authority as commander in chief to suspend the torture laws
and immunize those who commit torture on his order. .

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I never really did get a yes or no answer on that.
But can a President override our laws on torture and
immunize the person who did the torture?
.,Mr. Koh.

No.

Senator Leahy.

That is a good answer.

I happen to

agree with it.
Now, I asked Judge Gonzales about the administration's
claims regarding enemy combatants.

The President has

claimed unilateral authority to detain a U.S .. citizen whom
he suspects of being a terrorist, hold him indefinitely,
incommunicado, no access to a lawyer, and so on.
he haa this authority with respect to
abroad and here.

He says

u.s. citizens both

Judge Gonzales said the Supreme Court

upheld this in Hamdi.

Of course, in Hamdi the Court did

not decide that, they simply reached the conclusion that
the Congress had authorized this.
Do you believe that the President has authority as
commander in chief to lock up a U.S. citizen arrested in
the United States, and hold him indefinitely without access
to counselor the courts?
Mr. Koh.

No, and not when a civilian court is open.

I was surprised by the answer, because I tnink that if you
look at the Hamdi decision, the opinion that he was. citing,
Justice O'Connor's opinion, is a plurality decision.

It

does not say that he has a right to hold someone

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indefinitely.

That very issue is being litigated before

the District of South Carolina in the Padilla case on
remand.

And also, I think at the oral argument in those

cases, Justice Stevens asked the solicitor general, How
long would you hold the person?
the duration of the war.
hundred years war?

And the answer was, For

And he said, What-if it was a

And then the Government lawyer backed

away from the assertion.
So I do not think they were claiming at the time that
there was a right to indefinite detention, and I do not
think the Supreme Court gave them a right to indefinite
detention.
Senator Leahy.

Following a question one of the other

Senators asked, let us say the President followed Secretary
Powell's advice--declared the Geneva Conventions applied to
the conflict in Afghanistan.

What effect would that have

had on our ability to prosecute captured al Qaeda and
Taliban fighters for war
Mr. Koh.

cr~es?

Well, I think what was proposed, which I

think would have made sense, was for everyone to get a
hearing, as required by Article 5 of the Geneva
Conventions.

Everyone who is taken into captivi ty -'

ordinarily gets a hearing under the Geneva Conventions, and
thousands of these hearings have been given in Iraq and
were also given in Vietnam.

That is what was not done.

r

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think, particularly with

reg~rd

to the Taliban, they were

acting as essentially the ar.my of Afghanistan, and I
believe that they should have been given POW status.

I

think that there was some confusion in the questioning
today about whether, quote, Geneva applies or not.

Geneva

may apply, in the sense that everybody gets a hearing to
find out what their status is, but some of them may not be
....

POWs.
Senator Leahy.

Well, that is what--thank you.

is what I was looking for.

That

We follow certain standards.

Whether the other side does or not, we do.

We need to

comply with Geneva whether our enemies ao or not.

Is that

not the logic of Geneva?
Mr. Koh.

Broad applicability is the logic.

We have

been the ones who are saying it should apply broadly
because we want our troops 'to have a strong presumption of
protection.

Afghanistan was

th~

first time in which we

said that it did not apply toa conflict.
asking questions about rendition.

You were also

Once it was said that

Geneva Conventions did apply in Iraq, there was the danger
that people would then be removed from Iraq as a way of
bringing them outside of the scope of the

~eneva

Conventions.
The bottom line, Senator, is we have tried not to
create ways in which people can be taken in and out of the

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protections of the Convention, because that might happen to
our troops.
Senator Leahy.

Well, and if we have somebody who is

treating our troops inhumanely, or others, we can also
eventually bring about prosecutions of them as war
criminals, can we not?

And 'there is a lot of tradition of

tha~.

Admiral, the January 2002 draft memo for the
President--this was the one signed by Judge Gonzales-argued the war against terrorism is a new paradigm, renders
obsolete the Geneva Convention's, ,quote, strict limitations
in questioning of enemy prisoners.
about the Army Field Manual.

But we have talked

That makes it perfectly clear

that POWs can be interrogated, is that not correct?
Admiral Hutson.
couple of thoughts.

That is absolutely right, Senator.

A

One is that all the wars are new

paradigms when you first start to fight them.

You know,

there's new weapons systems, there's new enemies, there's
new tactics, there's new strategy.

So that the fact that

it is 'a new paradigm does not necessarily change things.

The other thing is that the Geneva Conventions place
on the detainee an obligation to provide certain
information.

It does not place on the'capturer a

limitation on the questions or the numbers of questions or
the numbers of times to question.

You know, this is not a

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Miranda kind of situation.

You can keep asking questions.

It does limit the torture, cruel, inhuman, degrading kinds
of ways that you may ask questions.

If by "obsolete" Judge

Gonzales meant that we are going to have to use more kinds
of techniques, harsher techniques, more aggressive
technlques, tortuous techniques, then I disagree with him
very strongly on that.

If he is just saying that we need

to throw it over the side because we are dealing with
terrorists and we cannot ask any question beyond name,
rank, serial number, then he is just wrong on the law.
know, it is one or the other.

You

He is either wrong on the

law or he is advocating techniques that I would not .
. support.
Senator Leahy.

From a military lawyer'S perspective,

could we have avoided what we see in Afghanistan, Iraq, and
Guantanamo?
Admiral Hutson.

Absolutely.

It goes back, Senator,

to what I think I said in my statement, written and oral
statement, about the chain of command.

You know, those

soldiers that we saw in the pictures, the people that are
being investigated otherwise have picked up the attitude
that started at the top of the chain of command.

And if

the attitude that started at the top of the chain of
command was, They may be terrorists, they may be evildoers,
but they are human beings and we will treat them with the

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dignity and respect that Americans treat human beings, we
would not have seen what we saw.

Rather, the attitude at

the top was, They are terrorists so different rules apply-without really explaining what the rules were that applied.
And as Dean Koh said, they ended--or I guess Mr. Johnson-they ended up in this never neverland where nothing
applied, and then we saw what happened.
Senator Leahy.

Well, we have some members of Congress

in both parties who have suggested we have some kind of an
independent, truly independent, investigation of .what
happened here.

Is that your position, too?

Admiral Hutson.

Absolutely, it is, Senator.

Gonzales referenced several times the number

Judge

of

investigations that are going on, as if that somehow fixed
the problem.

And, you know, if 10 investigations is good,

then 20 would be even better, and 30 better than that.
That is not the point.

The point is that we need an

investigation, a comprehensive investigation not unlike the
investigation that perhaps Admiral Gammon did in the
Challenger disaster, in which the investigating body has
subpoena power, the power to administer oaths, which raises
the specter of perjury, and is told to go wherever their
nose leads it--not to look at the few bad apples, you know,
atrocities have been committed by a few bad apples, now go
out and demonstrate how that happened.

And if it goes to

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the E ring, then it goes to the E ring; and if it goes to
the Office of Legal Counsel, then it goes to the Office of
Legal Counsel.

But when you put them in a box with a

series of investigations to look at junior enlisted
personnel, you are never going to find what happened.
Chairman Specter.

Thank you.

And Mr. Chairman, you

asked the question of Mr. Johnson I was going to ask,
basically how effective torture is.
v~rY

good answer from his experience.

And I think he gave a
Most people being

tortured are going to say whatever you want to stop the
torture.
Thank you, Mr. Chairman.

And again, I compliment

y~u

for the hearing you held today.
Chairman

Specter~

Thank you very much, Senator Leahy.

Senator Cornyn?
Senator Cornyn.

Thank you, Mr. Chairman.

Mr. Johnson, Mr. Koh, Mr. Hutson, thank you for being
here with us today.

I wanted to just ask whether you agree

or disagree with this proposition--to begin with, and then
we will get into more questions.
Do you agree or disagree that all lawful means to
gather actionable intelligence that is likely to save
American lives should be permitted?
Let me say that again.

Do you agree or disagree that

the United States Government should use all lawful means to

UNCLASSIFIED
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UNCLASSIFIED
165

gather actionable intelligence that is likely to save
American lives?

Dean Hutson?

Admiral Hutson.

I agree.

Senator Cornyn.

Mr. Koh?

Mr. Koh.

-1 agree with 1I1awful means,

It

not including

torture or cruel, inhuman, or degrading treatment.
Senator Cornyn.

Exactly.

question, but thank you for

That is implicit in the

b~ing

specific.

Mr. Johnson?
Mr. Johnson.
!.

I agree, and my concern is that there

has been such a fascination with the supposed effectiveness
of forms ,of torture and duress that all lawful means in
fact have not been used.
Senator Cornyn.

But as far as the proposition goes,

lIall lawful means,lI as qualified--as amplified, I should
say, by Dean Koh and you, Mr. Johnson, and Dean Hutson, you
would agree with that proposition, would you not, sir?
Mr.'

Johnson.

Yes.

Senator Cornyn.
all agree with that.

Well, that is the thing.

1 think we

I mean, certainly we do on the

Committee, and as I heard Judge Gonzales testify today,
that is what he said his position was and what he believed
the President's position was.
But let me get to an area where maybe there is--well,
I know there is disagreement because we have already talked

UNCLASSIFIED
L0878

UNCLASSIFIED
166

.about it some here today, not with you, but these
witnesses.

But first of all, and I would like to maybe

start with Dean Koh and then Dean Hutson. and then ask Mr .
Johnson some other questions.

.. .

...

Senator Cornyn.

But, you know, I asked earlier Judge

Gonzales--I think it was--whether lawyers disagree about
even the matters as important as what you have testified
here today, Dean Koh and Dean Hutson.

And we already, !

believe, have established that there are legal scholars and
international law experts who hold a contrary opinion to
the one you have expressed today, for example, Dean Koh,
with regard to the applicability of the Geneva Convention
to terrorists.

Would you concede the point that there are

respectable legal scholars who hold a contrary. opinion?
Mr. Koh.

Yes.

And I think that you have to define

exactly what you mean--the applicability to al Qaeda, the
applicability to Ta1iban.

There is a different nose count

on each one.
Senator Cornyn.

I understand your distinction.

let us talk about a1 Qaeda first.

But

But do you--and you take

the position that Geneva applies to al Qaeda.

Is that

correct, sir?
Mr. Koh.

I take the position that Geneva applies to

people who are captured and a tribunal could quickly

. UNCLASSIFIED
L0879

UNCLASSIFIED
167

determine that someone is al Qaeda.

And, as for example in

the case of Mousawi, he could then be turned over to a
criminal proceeding.
Senator Cornyn.

But for example, if there is a status

hearing to determine the status of an enemy combatant, and
they are determined to be, at that status hearing, a member
of al Qaeda, would they be entitled to the protections of.
the Geneva Convention, in your opinion, Dean Koh?
Mr. Koh.

Well, they fall under Geneva, but they are

not POWs, and they should then be treated as common
criminals and prosecuted.
Senator Cornyn.
treatment.

But nevertheless entitled to humane

Is that correct?

Mr. Koh.

Yes.

Senator Cornyn.

Okay.

And Dean Hutson, do you have a

contrary view, or do you take the' same position?
"Admiral Hutson.

I take the same view.

You know, one

of the issues, I think, here, Senator, at least in my mind
one of the issues here is that--I do not want to sound
pedantic, so forgive me,
practiced in a vacuum.

bu~,

you know, law is not

It is practiced in real life.

And

sometimes, whether or not lawyers agree or disagree about
the gray areas in the middle--and I do not think this is
necessarily a gray area in the middle--there are other
factors, like protecting U.S. troops, that have to be taken

UNCLASSIFIED
L0880

UNCLASSIFIED
168

into consideration in making the decision about whether or
not you are going to apply the Geneva Conventions or the
role that the Conventions are going to take.

And I think

it is naive to say, well--not you are, but that others,
naive on the part of others to say, well, we a~e going to
very narrowly limit this because we are clever lawyers and
we can figure out a way to get around this.

Because I

think that that, in the end, risks U.S. troops in this or
future wars.
Senator Cornyn.
just a second.

Well, Dean Hutson, let me pursue that

Is it not naive to assume that al Qaeda,

people who employ suicide bombing attacks, who attack
innocent civilians, will have any regard whatsoever for the
international norms of conflict?
Admiral Hutson.

I do not think that they will have

any regard for the international norms of conflict, nor do
I think that they are suddenly going to say, oh, gee, if we
start conducting our--behaving in other ways, we will get
the benefit of being

p~ws;

everything is going to be

if we start wearing uniforms,
o~ay.

You know,

I

do not think

it makes a difference particularly one way or the other.
Senator Cornyn.

So it would not influence their

decision to treat our troops, were they captured, in any
particular humane way, or when they complied with the
Geneva Convention.

UNCLASSIFIED
L0881

UNCLASSIFIED
169

Admiral Hutson.

I think it may.

I think Senator

McCain said that he thought that it did in Vietnam.

I

think that it-Senator eornyn.

Vietnam is--obviously we were at war

with another nation state and one that wore a uniform with
insignia and they had a chain of

command--~ll

the criteria

by which the Geneva Convention is determined to apply--did
we not?
Admiral Hutson.

They did not necessarily comply with

the law of war, which is one of the factors that is
determinative of POW status.
Senator cornyn.

Well, let me get back, before we

digress too much, to my earlier point, and that is that
lawyers disagree.

I mean, that is one of the things that

attract some of us to the law, either as law professors, as
practitioners, or as judges.
have a colleague at Yale

~aw

For example, Dean Koh, you
School, Ruth Wedgwood, do you

not?
Mr. Koh.

She has left Yale and gone to Johns Hopkins.

Senator Cornyn.
Yale.

Okay.

But at one time she was at

Do you regard her as an expert in international law,

including some of the issues we are talking about here, the
applicability of Geneva?
Mr. Koh.

She is a friend and colleague of mine with

whom I often disagree on points of law.

UNCLASSIFIED
L0882

UNCLASSIFIED
170

Senator Cornyn.

Exactly.

That is really my point.

And you do know that she has filed--she joined, along with
former Carter administration officials, an amicus brief in
Shafiq Rasul v. George Bush and argued, for example, that
the President's conclusion that members of a1 Qaeda and the
Taliban are unlawful combatants is clearly correct.
Therein lies your disagreement, is that correct?
Mr. Koh.

But I think you make an important point,

Senator, which is disputes among lawyers are often resolved
at the Supreme Court;

In that case, the Bush

administration's position in Rasul was rejected
definitively by the Supreme Court.
Senator Cornyn.

Certainly not on the basis of Geneva

Convention applicability?
Mr. Koh.

The issue was sent to a habeas corpus

proceeding, and Justice Souter, in another opinion issued
that day, suggested the question that the issue of Geneva
could be raised there.
Senator Cornyn.

Sure.

And one judge does not make a

disposition on a controlling issue of law.

You would agree

with that, would you not?
Mr. Koh.

I think we are moving to a definitive

resolution of these issues, but

I

think that these issues

are going to continue to be disputed and resolved in the
courts.

UNCLASSIFIED
L0883

UNCLASSIFIED
17l

Senator Cornyn.

Well, let me just mention a group of

other distinguisheq lawyers:

Professor W. Thomas Malison,

who has written in Case Western Reserve Journal of .
International Law; Professor Alan Rosos, who has written on
this subject; Professor Ingrid Dieter; Professor Gregory

M~

Travaglio--and I hope I pronounced that name correctly.
And 1 will not go through a whole long list.

But you would

acknowledge that there are others who--other legal
scholars, people who have written in this area, who agree
with Professor Wedgwood and disagree with you on the
application of Geneva to al Qaeda.

Would you concede that,

Dean Koh?
Mr. Koh.

1 think the question, Senator, is whether

Afghanistan.can be removed from the scope of the Geneva
Conventions.

And I do not know that anybody agrees with

that.
Senator Cornyn.

So you would not concede that there

isa fairly lengthy list of distinguished legal scholarship
that holds that al Qaeda fighters are not entitled to the
protections of the Geneva Convention?

You would not

concede that?
Mr. Koh.

I think this was a point that was made in

your Washington Times op ed quoting Mr. Malinowski from
Human Rights Watch.

But as I think he pointed out in his

letter of response, the danger is an assertion that an

UNCLASSIFIED
L0884

UNCLASSIFIED
172

entire conflict is outside the scope of the Geneva
Conventions.

If that were true, then the U.S. soldiers

participating also would not enjoy Geneva Convention
protections.

So r think the solution is to bring all the

combatants who are captured in, to give them hearings,
decide who are POWs and who ought to be treated as common
criminals, and that al Qaeda members could well be among
those who are treated as common criminals.
Chairman Specter.

Senator Cornyn, would you like one

more round?
Senator Cornyn.
Well, gentlemen, you know, regardless of the
disagreement among lawyers on this particular issue with
regard to the application of the Geneva Convention, and
regardless of whether you say Geneva does not apply or that
Geneva does apply but al Qaeda fighters are exempted from
the

re~irement

of Geneva's protections with regard to POW

status, would each of you--would you agree, Dean Koh, for
example, that, you know, some very important lawyers,
namely Federal judges, have decided in three different
cases that the President's position and Judge Gonzales's
position on the Geneva Convention is correct?

Are you

aware of that?
Mr. Koh.

If one of those cases is the Padilla case,

that case was reversed by the Second Circuit.

If another

UNCLASSIFIED
L0885

UNCLASSIFIED
173

case-Senator Cornyn.

But for lack of jurisdiction, right?

And it is not one of the ones I was referring to.
Mr. Koh.

And I think you also need to include into

the mix Judge Robertson's opinion in the D.C. Circuit,
which has in part suspended the military commission
proceeding precisely because of the Geneva Conventions.
And--

'

Senator Cornyn.

Is that the one that is on appeal

right now?
Mr. Koh.

Yes.

Senator Cornyn.

And then-Well, for the record, the ones I am

referring to are the Arnot case, the John Walker Lindh
case, the American Taliban-Mr. Koh.

Which is a plea bargain.

Senator Cornyn.
212 F.Supp.2d 541.

Well, I beg your pardon, sir.
It is not a plea bargain.

It is

This is the

one where he claims immunity from prosecution by virtue of
his being protected by the Geneva Convention and a POW, but

i.

'I

the court held he was not entitled to the protection of the
Geneva Convention.

UNCLASSIFIED
L0886

UNCLASSIFIED
..C...o."..k..Ii...
":.;'M....,a..
eg.a.."......
L

_

B5

Deeks, Ashley S
Monday, July 23, 2007 12:21 PM
Bellinger, John B (L Bureau)
FW: (U) Accusing MEP of foreknowledge changes the EP mood on CIA activities

From:
Sent:
To:
,Subject:

B~

From:

Sent:
To:
eel
Subject:

Robinson, John G
Monday, July 23, 2007 8:24 AM
Deeks, Ashley s~ Slcade, Lynn M (DRL)i Hammond, Sylvia L (DRL)
RobInson, John G
(U) Accuslng MEP of foreknowledge changes the EP mood on OA activities

(U) Accusing MEP of foreknowledge changes the EP mood on CIA activities
".,
On July 17, Council of Europe rapporteur Dick Marty presented his report on alleged CiA renditions and secret prisons to
members of three committees of the European Parliament. While strongly critical of the U.S. methods in the war against
terrorism, the general discussion was p'ositive towards the U.S., stressing that the American system of checks and
balances was working well compared to the European one. The atmosphere in the meeting was tense because the report
claims two MEPs, loan Pascu (PES, Romania) and Marek Siewiec (PES, Poland) knew of the secret detention centers in
their previous roles as Defense Ministers. While supporting the conclusions reached by Marty, socialist MEPs were clearly
embarrassed and criticized Marty's methodology of citing specific people without revealing his sources. Siewiec has
demanded his name to be withdrawn from the report, which Marty ruled out at a press conference after the EP meeting.
Marty dared Pascu and Siwiec to provide him with written denials of the report; Pascu drafted such a denial on the spot
and handed it to Marty in front of the press. The EP will be coming back to the issue next September with a report to be
drafted by the generally pro-US Foreign Affairs committee (AFET). (PoI/MVaneverbeke)
John G. Robinson
EUR/ERA
(202) 647-3913

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ID: 06 AUG 2009 200706444

1

uNCLASSIFIED
L0887

UNCLASSIFIED
Conklin, Maegan L
From:
Sent:
To:

Cc:
Subject:

Zelikow, Philip D
Friday, December 02, 200512:26 PM
Wilkinson, James R; McCormack, Sean I; Gunderson, Brian; Hughes, Karen P; Beecroft,

:~~~~e;, John B (L Bureau)(L-FO)

FW: Germany cools CIA issue. waits for U.S. reply

RELEASED IN PART
B5

I

BS

pz
From:

sent:
To:
Subject:

Fogarty,·Oaniel J
Friday, December 02,20057:45 AM
lW·EUR; SES-O_Shift-II; LW-Mahogany
Germany cools CIA issue, walts for U.S. reply

"BC-SECURITY-CIA.GERMANY (NO PICTURE)
"Germany cools CIA issue. waits for U.S. reply
BERLIN, Dec 2 (Reuters) - Germany said on Friday it would "wait patiently" for a U.S. response to allegations that the
CIA ran secret prisons in Europe and secretly flew terrorist suspects acrossthe continent. .
.
Government spokesman Thomas Steg said Berlin would not rush Washington and did not necessarily expect answers
when U.S. Secretary of State Condofeezza Rice visits next week to meet new Chancellor Angela Merkel.
'We're not putting the American government under time pressure," Steg told a news briefing.
'When the other side has given a public assurance that the questions of the Europeans wjll be answered, then one
simply waits patiently for the answer."
His comments were clearly aimed at drawing some of the heat out of the issue, which has prompted the European
Union and at least eight member states to request clarification and assurances from the Bush administration.
The Washington Post last month reported that the Central Intelligence Agency had run secret prisons in Eastern
Europe for interrogating terrorist suspects.
The continent's leading human rights watchdog, the Council of Europe, is investigating the prisons report and probing
flights by 31 aircraft it suspects may have been used by the CIA to transfer prisoners secretly across European borders.
New York-based Human Rights Watch said this week the United States was holding at least 26 "ghost detainees" at
undisclosed sites around the world. Critics say incommunicado detention violates internatioal law and often leads to
torture.
U.S. officials have defended the use of the secret transfers, known as renditions, as a weapon in the "war on terrorism".
They strongly deny that the United States uses torture.
At the same time, Rice this week acknowledged European concerns and pledged that Washington would respond to
fu~.

.

Merkel's government is keen to improve relations with the Bush administration, which were badly damaged when her
predecessor Gerhard Schroeder clashed with Washington over the Iraq war.
But it is under pressure from opposition parties to clarify reports of scores of unexplained CIA flights via German
airports.
.
. _
German prosecutors are investigating two rendition cases - one involving a German who was seized in Macedonia and
taken, allegedly by the CrA, to Afghanistan. and the other an Egyptian who was abducted in Milan and. according to
investigators, returned to Egypt via Germany.
But Ernst Uhrlau, the new head of Germany's foreign intelligence agency. said in an interview this week there was no
proof German airports had been used for secret prisoner transfers.
"We have no information, no facts, there are.only rumours," he told Die Zeit newspaper.
"REUTERS

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED

L0888

UNCLASSIFIED

\

"

Conklin, Maegan L.

Subject:

Buchwald, Todd F (L-UNA)
Friday, December 02, 20056:02 PM
Bellinger, John B (L Bureau); Dorosin, Joshua L; Harris, Robert K; Witten, Samuel M
RE: Q's & A's

Attachments:

LEGAL-#124221-v2-Sec_Q's_&_A's.:_Black_sites_etca.DOC

From:

Sent:
To:

RELEASED IN PART
.B5
LEGAL-#124221-v2

-Sec_Q's_&_A's...

As requested, see revised Q&A on renditions from US - highlighted in yellow in attachment
·--~-original Message--- .
Bellinger, John B(L Bureau)
sent:
Friday, December 02, 2005 5:27 PM
To:
Buchwald, Todd F (L-UNA); Darosin, Joshua li

From:

Subject:

Harris, Robert Ki WItten, Samuel M

FW: Q's & A's

B5
The Q&A on renditions from the US is too long; can I ask someone to edit it down to no more than 2-3 short bullets?
----Original

From:
sent:
To:

te:
Subject:

Message-Buchwald, Todd F (l-UNA)
Friday, December 02, 2005 3:56 PM
Bellinger, John B (L Bureau)
Witten, samuel M; Dorns;n, Joshua Li Harris, Robert K
Q's & A's

«File: LEGAL-#124221-v1·Sec Q's A's - Black sites etea .doe»
John- Here are the Q's & A's withclearancesfrom sam, Josh andBob. Cleared version of backgrounder to follow in a
few minutes.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED
L0889

UNCLASSIFIED
Conklin, Maegan L
From:

Subject:

Dorosin, Joshua L
Sunday, December 04, 200510:22AM
Zelikow, Philip D(C); McCormack, Sean I(PA FRONT); Wilkinson, James R(S); Bellinger,
John B (L Bureau); Bellinger, John X (Geneva)
Graffy, Colleen P; Volker, Karen E(RlPPR); Buchwald, Todd F (L-UNA); Witten, Samuel M;
SES-O
REVISED Q/As for the Secretary

Attachments:

LEGAL-#124221-v2~Sec_Q's_A·s_-_Black_sites_etca_.doc

Sent:

To:

Cc:

RELEASED IN PART
B5
LEGAl-#124221-v2
-seC_Q'S_A'S_.••

TO THE OPS CENTER: PLEASE PASS TO PHILIP ZELIKOW, SEAN MCCORMACK AND JAMES WILKINSON AS
SOON AS POSSIBLE

AIIAttached are the Q/As as revised to reflect the change John noted below to the CID question. We've also added two
additional points.
Thanks. Josh
---Original Message---From:
Bellinger, John B (L Bureau)
sent:
Friday, December 02, 2005 8;08 PM
To:
Bellinger, John B (L Bureau); Zelikow, Phfllp D(C); McCormack, sean I(PA FRONT)i Wilkinson, James R(S)
Cc:
Gratry, Colleen P; Volker, Karen E(R/PPR); Dorosln, Joshua l; Buchwald, Todd F (l-UNA); Witten, samuel M
SUbject:
R!;: Q's & A's

BS

Josh et al: Could you pis revise Q&As and resend to Philip? Thanks.

-----Oliginal
From:

sent:
To: .
Cc::
SUbject:

Message---Bellinger, John B (l Bureau)
Friday, December 02, 2005 6: 17 PM
Zelikow, Philip D(C); McCormack, sean I(PA FRONT); Wilkinson, James R(S)
Gratry, Colleen P; Volker, Karen E(R/PPR); Dorosin, Joshua l; Buchwald, Todd F (L-UNA); WItten, samuel M
FW: Q's & A's
I

BS

1

···--original Message---From:
Buchwald, Todd F (L-UNA)
sent:
Friday, December 02, 2005 6:02 PM
To:
sellinger, John B (l Bureau); Dares/o, Joshua L; Hartis, Robert K; Witten, Samuel M
Subject:
RE: Q's & A'S

« File: LEGAL-#124221-v2-Sec_Q's_&_A's_-_Black_sites..:-etca.DOC» s.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED

L0890

UNCLASSIFIED
Conklin, Maegan L
From:
Sent:
To:
Cc:
Subject:

Allegrone, Kathleen H
Tuesday, November 29, 2005 8:54 AM
Pekala, Mark A; Witten. Samuel M; Bellinger, John B (L Bureau); Faucher, Robert J; Dorosin,
Joshua L; Terrill, Damon A; Propp, Kenneth R
Volker, Kurt 0; Graffy, Colleen P
RE: Tasking List for November 29, 2005

RELEASED IN PART
B5

Have we actually received the formal request from STraw?

B5

I<
From:

sent:
To:

Cc:
Subject:

Pekala, Marl<: A
./
Tuesday, November 29, 2005 8:52 AM
Witten, Samuel M; Bellinger, John B(l Bureau)i Faucher, Robert J; Dorosln, Joshua L; Allegrone, Kathleen H; Tenill, Damon A;
Propp, Kenneth R
Volker, Kurt D
RE: Tasking Ust for November 29, 2005

B5

From:

sent:
To:

ec:
Subject:

Importance:

Witten, Samuel M
Tuesday, November 29, 2005 8:40 AM
Bellinger, John B(l Bureau)i Pekala, Marl<: A; Faucher, Robert Ji Dorosin, Joshua Li Allegrone, Kathleen H; TeniJl, Damon A; Propp,
Kenneth R
Volker, Kurt 0
FW: Tasking Ust for November 29, 2005
High

Friends - what are your thoughts on how best to answer the question posed by PA - "When do we expect an answer to
the EU regarding the secret prisons?
.

B5

I

L . . . - - - -

Do you have otherlbetter formulations to suggest? FYI to all-Damon Terrill is back in the office today.
----Original Message--From:
Davidson, Terry R
Sent:
Tuesday, November 29, 20057:55 AM
To:
EUR-FO-DL; Faucher, RobertJ; Tenill, Damon Ai Witten, Samuel M; Dorosin, Joshua Li Propp, Kenneth R
EUR-PPD-Oirsi EUR-AGS-DLi EUR-PPD-PA
Cc:
Subject:
FW: Tasking Ust for November 29, 2005
Importance:
High

L has the lead on the black sites-EU guidance. Time will be short for AGS readout of FM meeting...
please coordinate with Gerry Keener on the guidance, as Linda Hartley is working with PA on press
accommodations ... last-minute switch back to "walk out" press availability with Steinmeier, so we'll
have a huge German press contingent... Terry

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 roN 2009 200706444

UNCLASSIFIED
L0891

UNCLASSIFIED'
EUROPEAN AFFAIRS
L / EUR / INR / REG{ON: When do we expect an answer to the ED regarding the secret prisons?
EUR I GERMANY: Read-out ofthe Secretary's meeting with Foreign Minister Steinmeier

. From: Pittman, Susan R
Sent: Tuesday, November 29, 2005 7:42 AM
To: PAPress3askingUst
Subject: Tasking list for November 29, 2005
Importance: High
Just beginning. Will add more later:

«File: TASKING LIST TEMPLATE. doc »

UNCtASSIFIED
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Page I of 1

Conklin, Maegan L
From:

Graffy, Colleen P

Sent:

Friday, January 20, 200612:27 AM

To:

Bellinger, John B (L -Bureau)

Cc:

Dorosin, Joshua L; Volker, Kurt D; Volker, Karen E(R/PPR)

RELEASED IN PART
Bl,1.4(B)

SUbject: UK on Renditions

FYI. Glad Hank got the rendition points before he left. thx

UK: Leaked "Rendition" Memo Raises Questions for PM
(C) According to media reports, the New Statesman magazine will publish this week a
leaked Deceinper 7th FCO memo to Number 10 which advised senior ministers not to get
drawn into details about extraordinary rendition. The memo reportedly said "we cannot
say that we have received no such requests for the use of UK territory or airspace" and
asked "how do we know whether those [prisoners] our Anned Forces have helped to
capture in Iraq or Afghanistan have subsequently been sent to interrogation centers?"
Number 10 and the FCO had no comment, saying the Government's policy is not to
comment on leaked memos. Conservative Party Shadow Minister William Hague asked
the government to clarify its position. LibDem foreign affairs spokesman Nick Clegg
suggested the memo may be a breach of the Ministerial Code re uirin ministers to be as
o en as ossible with Parliament and the ublic.

Bl

reporting; EURlUBI: ACervetti, 7-2456)

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 "200706444

UNCLASSIFIED
3/27/2009

L0893

UNCLASSIFIED
NotesTele.txt
Daniel Fried 11/25/2005 09:00:08 AM From DB/Inbox:

Daniel Fried

RELEASED IN PART
Bl, 1.4(B), 1.4(D)

cable
Text:
CONFIDENTIAL
TELEGRAM

November 25, 2005

To:

No Action Addressee

Action:

EUR

From:

AMEMBASSY THE HAGUE (THE HAGUE 3172 - IMMEDIATE)

TAGS:

EUN, MARR, MOPS, PGOV, PINR, PREL. AF. NL

Captions: None
subject:

NETHERLANDS/ISAF: FM BOT LINKS REPORTS Of SECRET
PRISONS AND ISAF STAGE i l l PLANS

Ref:

None

classified By: Acting political counselor Jason Grubb,
reasons 1.4 (b.d)
1. (C) summary: During November 24 parliamentary debates on
foreign policy. Dutch Foreign Minister Bernard Bot linked
news reports of secret USG prisons and CIA-contracted planes
to Dutch participation in military missions in Afghanistan.
Bot said that the existence of secret CIA prisons in Europe
would have consequences for Dutch participation in OEF and
laos to art;ei ate in ISAF Sta e III.

·BI

~post requests Department s gU1 ance on
ow to respon
to Bot's comments. End summary.
.

~

Bot speaks out
2. (C) Bot said that if the CIA has secret prisons in Europe.
then this will affect Dutch participation in OEF and plans to
participate in ISAF Stage III. ·He suggested that the USG ;s
pushing the limits of international law. and said that recent
comments by Vice President Cheney on international rules
against torture have "aggravated the situation". These
comments follow Bot's recent remarks that the u.s. should not
"play hide and seek" with regard to the prisons. Media
reports su~gest that resistance to Dutch participation in
military m1ssions in Afghanistan is growing ;n parliament.
BI

page
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

.L

UNCLASSIFIED

L0894

UNCLASSIFIED
-

-t-v-t-

,BI

BLAKEMAN

Additional Addressees:
None
cc:
AMEMBASSY CANBERRA
AMEMBA5SY KABUL
SEeSTATE WASHOe
CJCS WASHOC

NATO EU COLLECTIVE
Nse WASHDC

Di stri bution:
TED5877
ACTION EUR-OO
CIAE-OO DODE-OO VCl-OO
TEDE-OO
ACQ-OO
VCIE-OO NEA-OO
NSAE-OO ISN-OO
NSCE-OO
PM-DO , PR5-00
P-OO
ISNE-OO SP-OO
SA-OO
DRL-OO
T-OO
UP-DO
PMB-OO
/OOOw
------------------63FE6c 251139z /34
o 251059z NOV 05
FM AMEMBASSY THE HAGUE
TO SEC5TATE WASHDC IMMEDIATE 4179
INFO NATO EU COLLECTIVE IMMEDIATE
AMEMBA5SY CANBERRA IMMEDIATE
AMEMBASSY KABUL IMMEDIATE
CJCS WASHDC IMMEDIATE
NSC WASHDC IMMEDIATE
SECSTATE WASHDC IMMEDIATE 4180
INFO

LOG-OO
L-OO
PA-OO
TRSE-OO
SAS-OO

INR-OO
OMB-OO
55-00
G-OO

CON FlO E N T ~ A L THE,HAGUE 003172
E.O. 12958: oeCL: 11/25/2015
TAGS: MARR, PREL, PGOV, PINR, MOPS, EUN, AF., NL
. SUBJECT: NETHERLANDS/ISAF: FM BOT LINKS REPORTS OF SECRET
PRISONS AND ISAF STAGE III PLANS

Page 2

UNCLASSIFIED
L0895

UNCLASSIFIED

End cable Text
~aniel

NotesTele.txt

Fried 11/25/2005 09:00:08 AM

Recipient/profile Information
cable Recipients:
Steve Adams-Smith
Joanne E Addison
Michael J Adler
Damola A Akeredolu
stefanie Altman-winans
Aaron TAlton
worth SAnderson
Jorgan K Andrews
Richard H Appleton
Michelle E Azevedo
Joseph R Babb
Alejandro H Baez
Anthony Baird
stephen B Banks
Erin MBarclay
Jamie MBay
Rene l Bebeau
John P Becker
Lisa J Benthien
Mark A Betka
Joshua Black
Eric D Bone
Tiffan; Brown
Jody L Buckneberg
Mary J Bushnaq
Andrea Cameron
Martha L campbell
Raphael carland
Amy C carlon
Amy A carnie
Lauren W catipon
Angela MCervett;
Marcia Ecole
Ronald collins
John conlon
Celeste A connors
Nerissa J cook
shawn P Crowley
Jennifer MDarrington
, James P Dehart
Lillian G devalcourt-Ayala
Liane R Dorsey
David A Eastmond
Joao M Ecsodi
Colleen S Eddy
Jennifer A Eldridge
Christopher A Ell,s
John F Erath
EUR Sp Asst
Mark R Evans
Robert J Faucher
Michael A Feldman
John J Fennerty
Eri c Fichte
Terrance R Flynn
John FOX

From DB/rnbox:

Daniel Fried

page 3

UNCLASSIFIED
L0896

UNCLASSIFIED

Daniel Fried
Anita E Friedt
David M Froman
Martin C Gage
Michael F Gallagher
Gre~ory G Garramone
JUllette Garvis
Linda A Gayles
Stephen·M Geis
Theresa A Grencik
Danny Hall
Joshua Hatcher
Margaret Hawley-Young
John Hennessey-niland
John J Hillmeyer
Marcus A Hirsch
Marjorie T Hoefler
sherri A Holliday
Greta C Holtz
Arnold Horowitz
Jeremiah Howard
Todd MHuizinga
Cornelia L Johnson
Kim Johnson
Seth A Johnston
Donald L Jordan
Brian P Katz
stephanie 5 Kinney
Heather x Kitchens
Eric WKneedler
Mary Koenig
David J Kramer
Noah B Krystel
~dam D Lamoreaux
Laurence S Lanes
Jacqueline A Lawrence
Thomas M Leary
Frank J Ledahawsky
Thomas E Lersten
Aaron H Levy-Forsythe
Dana M Linnet
J D L;ppeatt
Debra Lo
Mari a ALongi
Andrew R Lorenz
John 0 Maher
Carol ann Marino
Gregory L Mattson
victoria S Middleton
James Miervaldis
LaKeisha L Millard
Katherine L Mitchell
Jennifer Mitchell
Matthias J Mitman
Jul)e.Montgomery
Pamela P Montgomery
Judith A Moon
.
Joann Moore
connie A Morella
Elana Mulenex
Elizabeth A Nakian
Alessandro P Nardi
Mary M Nash

NotesTele.txt

page 4

UNCLASSIFIED .
L0897

UNCLASSIFIED

Thomas J Navratil
Terry J N;mer;chter
Edwin R Nolan
Alain G Norman
Mary Mo'Keefe
Thomas A o'Keeffe
Tabitha Roman
Howard Perlow
Dora DP plavetic
Peggy L plunkett
Pame 1a M powe 11
Kathleen A Powers
Richard L prosen
Jay Raman
Jeffrey D Rathke
Melissa 0 Ray

NotesTe1e . txt ,

Lonni H Reasor

Helen G Rednos
GUS Rednos
Richard T'Reiter
christen C Rhodes
Lawrence G Richter
Gerd Rickert
Maiesha S Riley
John,G Robinson
Ana'M Rodriguez
Kenneth M Roy
Adele Ruppe
.Franciso, 0 sainz
Gary E schaefer
James F Schumaker
Michael D sessums
Jeffrey R sexton
Eugenia M sidereas
Marsha L singer
cressida A Slate
Stephen T smith
Anthony spakauskas
Lanni H spiegel
Jeffrey R Starnes
Daphne Z stavropoulos
Ronald Stephens
Adam H Sterling
Mary E Stewart
Alexandra M Sundquist
David J Tessler
Tracey R Thornton
Steven M Toy
John C Tucker
subrena R Tumblin
Robert'H Tuttle
Diana N Viggiano
Kurt 0 voker
Jacqueline V voorhees
Ann L wagner
Alyssa Watzman
Alyssa Waxman
Ivan S weinstein
Matthew Swells
Arkell D weygandt
Caitlin White
Tamiya Y White
Ernestine wilson

Page 5

UNCLASSIFIED
L0898

UNCLASSIFIED
NotesTele.txt
Jason R wisniewski
Kami A Witmer
Nelson wukitsch
Thomas A Yeager
Marie L Yovanovitch
Alan K Yu
Diane R zeleny LMDS Profiles/office Symbols:
EUR-AGS..Al
EUR-AGS..:.A13
EUR..AGS...A3
EUR_BI..Al
EUR-BI....A2
EUR-BI....A3
EUR-CAN....A6
EUR...-CASA...A3
EUILCEN...A4
EUILERA..Al
EUR...-ERA..A2
EUILERA..A6
EUR...-FO...A2
EUR_FO....A3
EUILFO....A4
EUILNAR....Al
EUR_PPA....A3

EUR-PPA....A4
EUR_RPM....A3
EUR_RPM...A4
EUR-SE...All
EUR-SE...A12
EUILSNIS..A2
EUR_UBI...A3
EUfLUBI...AS
EUR-UBI....A7
EUR...-USIS...A1

hardtdb2
hardtdb3
bakasmal
Bushnaq_l
byrneskl
cockrelH

cablexpress Folders:
oakman2

DOFOl #4
elli s1

murrayjc1
NolanER

Mcdonaldcl

TC

wukitschnl
oakmanl
steinjl
doetsmp2
ecsodijm_l
Hall 0_1

hi 11 c_4
ricke rt9_1
trostlj3
capps.r
cleverlm_l
hwanCJjl

McKmghtAl

NavratiLl

PGI-l

recinosLl

Page 6

UNCLASSIFIED
L0899

UNCLASSIFIED

reieheje_1
sessumsmd1
volkerkd
arnettdll
Beeker1
danielsk1

NotesTele.txt

DOFOl #1

eatmonfpl
ettern_l

·EUlLPOSTS

fennertj_1
gallagmf
hadda_1
hawthorm1
horowitzAl
johnsontc_l
karagiaAl
keyesj2
mitchellj1
MOZUR-GENERAL
parent_l
parkerfs_2
powellpml
profaiza1
seeorpf4
shinageleJ
slettenj_1
smisthpr_l
Smithcm1
still i vah_l
turnbul1d
johnsonjl
seeverjp
ACE2
AzevedoM
CarnieM...l
conlon1
ga~em2

pnneed_1
prosenrl
recinos9_4
RugglesT_2
schultze_l
seidensM
Tefftl
volkerkdl
akeredda
Andersonw
eddye_1
ERAl
EXHEADSl
gageml
hennnessey_nilandJ_2
hiltonrb_2
hornblmml
kramersl
manningj12
megahuab1
murraycw1
POWERSK_2

riese2
secorpf1
snecl

page 7

UNCLASSIFIED
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UNCLASSIFIED

snis3
tribbleCl
crouchgd_2
goldsteinj2
recinosh_3
TEKACH_5
hoaglare_3
feldman2

NotesTele.txt

Page 8

UNCLASSIFIED
L0901

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Page 1 of3

Conklin, Maegan L
From:

Dorosin, Joshua L

Sent:

Wednesday, November 30, 2005 11 :45 AM

To:

Bellinger, John B (L Bureau); Witten, Samuel M

RELEASED IN PART
.B5

SUbject: FW: Crosshatch on Bondsteel
John/Sam FYI - the Bondsteel story has been largely deflated by a newer Le Monde story reporting that the former
French KFOR Commander has pUblicly countered Gil Robles allegations.
Josh

----Original Message----From: Rathke, Jeffrey D
Sent: Wednesday, November 30, 2005 10:51 AM
To: Dorosin, Joshua L
Subject: FW: Crosshatch on Bondsteel
Josh:
FYI.
JR

From: Rathke, Jeffrey 0
Sent: Wednesday, November 3D, 2005 10:51 AM
To: Volker, Kurt Oi Warlick, James B (EUR)i Robbins, Gary D; Bame, David J(P); English, Charles L
Subject: RE: Crosshatch on Bondsteel
.
Just talked to Mark Schwendler, who rep?rted the following:

B5

JR

From: Schwendler, Mark H. [mailto:schwendm@nsc.sgov.gov]
Sent: Wednesday, November 30, 2005 10:46 AM
To: Ansley, Judith A. (Europe-NSC); Braun, Bertram D.
Cc: Rathke, Jeffrey D
Subject: Former KFOR Commander Valentin: No Secret Prison at NATO Base in Kosovo [UNCLASSIFIED, Record]
Source-Date: 11/29/2005
EUP20061129029009 Paris Le Monde (Internet Version-W'W1N) in French 29 Nov 05

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED

3/27/2009

L0902

Page 2 of3

UNCLASSIFIED
[Report by laurent Zecchini: "Kosovo: 'KFOR Denials of 'Secret Prison'" ]
[FBIS Translated Text}

France's General Valentin, who commanded NATO's multinational force in Kosovo (KFOR) from October 2001
through October and 2002, countered the charges leveled by Alvaro Gil Robles, the Council of Europe's
commissioner for human rights, who gave to understand that the United States' Camp Bondsteel(O) in Kosovo
could be a replica of Guantanamo. In a 27 November interview with Le Monde, General Valentin was forthright: "I
was never shocked by conditions of detention. It was a military prison like many others. Amnesty International
and the Red Cross had no complaint about conditions of detention. Of course people were imprisoned there
under emergency conditions, and I had emergency powers: in Kosovo there was no judiciary, no police, and no
prison service. So 'prisoners had no attorneys. They were under extended arrest without charge."
General Valentin explained that he met with Mr Gil Robles 7 September 2002. He took the latter to the camp, but
did not accompany him inside. On his return, Mr Gil Robles "told me that he was very happy with what he had
seen and praised the professionalism displayed by the Americans in managing the detention center," the general
recalled. At that time the center held, among others, five Algerian nationals. "They were members of an Algerian
NGO accused of photographing NATO facilities. I had them arrested at the end of July, and they were released in
September, for lack of evidence."
The former commander of NATO's forces in Kosovo explained that, though the detention center was under his
responsibility, its management was entrusted to KFOR's US forces. "Unless I was deaf and blind, this detention
center only ever held persons that KFOR was tasked wjth arresting and detaining, in accordance with UN
Resolution 1244," he said. On his arrival, General Valentin found 7.5 prisoners at the detention center, and they
had all left it by the time of his departure.
General Valentin nevertheless admitted that he could not say anything about the rest of this 300-hectare military
camp. "All aircraft landing in Pristina were extraterritorial; they were NATO aircraft and nobody checked what
they were carrying," he specified. Mr Gil Robles' point that prisoners wore '!orange fatigues like those of the
prisoners at Guantanamo" made General Valentin smile: "Prisoners in all US prisons wear orange fatigues. As
for distinguishing a bearded Albanian from a TaUban... I think that Mr Gil Robles was misled by drawing a certain
parallel," he said.
In Pristina, KFOR said that it had never been notified of any use of the Bondst~eJl.Q1 detention center beyond that
relating to KFOR's mission, and the spokesman for the US troops denied that there is a "secret prison" at
Bondst~eJIQl.

However, the controversy over secret CIA prisons in Europe is not abating: Switzerland has demanded .
explanations from Washington concerning the overflight of its territory by US aircraft, while German Foreign
Minister Frank-Walter Steinmeier has declared himself "concemed" about reports that aircraft carrying arrested
Islamists stopped over in Germany.

[Description of Source: Paris Le Monde (Internet Version-WNW) in French - leading left-of-center daily)

From: Nuland, Victoria

sent: Wednesday, November 30,20052:06 AM

.

To: Volker, Kurt Dj Warlick, James B (EUR)j Robbins, Gary Dj Same, David J(P); Rathke, Jeffrey D
Cc: Koenig, John M
Subject: RE: Crosshatch on Bondsteel
Not surprised. Tx for efforts. Euro-papers today full of S's "promise" to get a good answer soon on "secret

3127/2009

UNCLASSIFIED
_ _ e ••••

•

••••

••

•

....

_

L0903

UNCLASSIFIED

Page 3 of3

detention" given during her Steinmeier mtg.

From: Volker, Kurt D [mailto:Volkerl<D@state.sgov.gov]

sent: Wednesday, November 30,20053:17 AM

To: Nuland, Victoria; Warlick, James B (EUR); Robbins, Gary D; Bame, David J(P); Rathke, Jeffrey D
Cc: Koenig, John M
Subject: Crosshatch on Bondsteel
uidance on Bondsteel in time for the

B5
crosshatch cleared asap after that, but cannot guarantee at this point. - Kurt

UNCLASSIFIED
3/27/2009

L0904

UNCLASSIFIED
Conklin, Maegan l

SUbject:

Terrill, Damon A
Wednesday, December 14, 200511:15 AM
Bellinger, John B (L Bureau)
Jacobson, Linda; Harris, Robert K; Witten, Samuel M; Olson, Peter M; Dorosin, Joshua L
RE: Press Tasking to l- CaE Statements on Detainees
.

Importance:

High

Attachments:

FW: COE Inquiries·

From:

Sent:
To:'

Cc:

RELEASED IN ,PART
B5

John I've just spoken at length with Susan Ball (EURIWE), who notes that you were to receive the attached momentarily via Dan
Fried,

In sum - no, there has been no contact, as far as we're aware, between Dick Marty and the Department. post, or anyone
else in the USG, since the delivery by Mr, Marty of his report to the COE's PACE yesterday afternoon.
At Sam's suggestion, I'm now drafting place-holder "we have nothing further at this time" guidance in response to this
morning's tasking. which 1'\1 circulate to this list momentarily.
I hope this helps.
Damon

FW: tOE InquIries

Damon A. Terrill
Attorney Adviser & Press Officer
United States Department of State
Office of the Legal Adviser
European & Eurasian Affairs (UEUR)
2201 C Street NW
Washington, DC 20520
(202) 647-1270

····-Orlginal Message·····

From:

Bellinger, John l3 (L Bureau)

Sent:

Wednesday, December 14, 2005 11:01 AM
TerriU, Damon A; Jacobson, Unda; Harris, Robert K; Witten, Samuel M; Olson, Peter M; Darosin, Joshua l

To:
Subject:

RE: Press Tasking to L - CaE Statements on Detainees

Damon:1
the USG~?'JrcB'l:lB----------_---J

IDo we know if he is talking to anyone in Embassy Paris ~r in

B5

··-··Origlnal Message-·-Terrill, Damon A
sent:
Wednesday, December 14, 2005 9:54 AM
To:
Bellinger, John B (l Buteau); Jacobson, Unda; Harris, Robert K; Witten, samuel M; Olson, Peter M; Dorosin, Joshua t,
Subject:
Press Tasking to L • CaE Statements on Detainees
Importance:
High

From:

Please note the below press tasking, on which l has the lead. I have attached a copy of the COE's statement. to .
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED

L0905

UNCLASSIFIED
whiCh the tasking refers, as well as a template for use in creating the guidance.

L I SIWCII EU~: Comment on the Ccmncil of Europe's Committee on Legal Affairs and Human Rights
report on inquiry into reports of secret prisons and rendition flights.
Best,
Damon (7-1270)

«

File: COE Statemet Secret Detention Centres in Europe.doc» «File:

121405lPressGuidanceCoEStatement.doc»

Damon A. Terrill
Attorney Adviser & Press Officer
United States Department of State

Office of the Legal Adviser
European & Eurasian Affairs (UEUR)
22,01 C Street NW
Washington, DC 20520
(202) 647-1270

UNCLASSIFIED
L0906

UNCLASSIFIED
Conklin, Maegan l
Ball, Susan M (EUR)

From:

Wednesday, December 14, 200511:09AM

Sent:

Terrill, Damon A
FW: COE Inquiries

To:
SUbject:

RELEASED IN PART
B5, B 1, 1.4(B)~ 1.4(D)

COE Amb Marty letter.doc; COE Amb van der Linden letter.doc; Marty fetter.OOC; Van der
Linden letter to S.tif

.Attachments:

fyi

To:
Cc:

A1legrone, Kathleen H
Wednesday, December 14, 2005 10:59 AM
Sterling, Adam H; ChaSE!, Peter H (EUR); Volker, Kurt D
EUR-WE-france-Dt

Subject:

COE Inquiries

From:

Sent:

For L, P and PA
COE has approached us at various levels on four separate tracks during the past month. We have responded to three of
the fOUf requests, inclUding the initial one by Dick Marty, by politely pointing them toward, and attaching, the Secretary's
December 5 statement. A draft response from S to the COE Parliamentary Assembly President is in clearance.

.B5
Details:
• COE member (0 ick Marty) charged with investigating detainee etc allegations In Europe. He wrote to Amb Stapleton
November 14, asking for inforrnation; Ambassador responded on December 7, forwarding to Marty the Secretary's
statement.
.

Bl

rW®
~
COE Amb Marty COE Amb van der
tetter.doc (24 K... Unden letter....

Marty letter.DOC
(28 KB)

Van der Linden
letter to S.tif...

UNITED STATES DEPARTMENT OF STATE
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, A1ISS
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: CONFIDENTIAL REASON: 1.4(B), 1.4(D)
DECLASSIFY AFTER: 14 DEC 2015
DATE/CASE ID: 01 JUL 2009 200706444

lUNCLASSIFIED

L0907

UNCLASSIFIED
'Conklin, Maegan L
Terrill, Damon A
Tuesday, November 29,20054:30 PM
Bellinger, John B (L Bureau)
Hata, Marianne J; Olson, Peter M; Witten, Samuel M
FW: US acknowledges Europe concern on 'secret prisons'

From:
Sent:

To:
Cc:
Subject:

RELEASED IN PART
B5

John In anticipation of your meeting with Saul tomorrow, please note the below.
Best,
Damon {7-1270)

----Original Message---Allegrone, Kathleen H
sent:
Tuesday, November 29, 2005 3:52 PM
To:
Witten, Samuel M; Propp, Kenneth R; Tenill, Damon A
Cc::
GraftY, COlleen P
SUbject:
FW: US acknowledges Europe concem on 'secret prisons'

From:

B5
from:
sent:

To:
Subject:

OS Duty
Tuesday, November 29, 2005 3:33 PM

LW-EURi lW·Mahogany; SES-Q_Shift-lI; lW-L; SES-Q_Shlft-II
US adcnowledges Europe concern on 'secret prisons'

Be-GERMANY-USA
/lUS,acknowledges Europe concern on 'secret prisons'
By Saul Hudson
WASHINGTON. Nov 29 (Reuters) - Under German pressure, the United States acknowledged for the first time on
Tuesday that allegations of secret CIA prisons in Europe have raised widespread concern in the region.
On the first visit by a German official from a coalition that took power last week, Foreign Minister Frank-Walter
Steinmeier also won a personal pledge from U.S. Secretary of State Condoleezza Rice that Washington would respond to
the accusations.
"The United States realizes that these are topics that are generating interest among European publics as well as '
parliaments and that these questions need to be responded to," State Department spokesman Sean McCormack told
reporters after the diplomats' meeting.
Rice maintained the U.S. position of avoiding denying or confirming a newspaper report that secret centers to
interrogate terrorism suspects were located in Eastern Europe. but Steinmeier said he was reassured Washington would
be more forthcoming.
.
Steinmeier said that Rice, who will visit Germany on a trip to Europe next week, pledged to "prOVide a prompt and
detailed response" to an EU request for clarification of the report.
The U.S. acknowledgment of European co'ncerns was a departure from the Bush administration's response to the
nearly four~weel<.s~otd scandal, in which it downplayed the controversy by s,aying it was not a major issue with
governments.
Until the eve of the meeting, U.S. officials had also given little sign they would answer growing calls in Europe for an
explanation. On Monday, however, McCormack said the United States would try to respond to an EU inquiry into the
charges.
The controversy has fueled public and government concern in Europe about America's tactics in its war on terrorism
and U.S. handling of detainees in general.
Governments, including Germany as a vocal critic, have already complained of U.S. detainee abuse in Iraq and the
detention of prisoners for years in Guantanamo Bay, Cuba.
Human rights groups, who say the United States has used legal technicalities to justify abusive policies in its war on
terrorism, say incommunicado detention is illegal and often leads to torture.
Rit3Nii~kt.pcM~E!i-9~~~if~:r'.ilh Steinmeier. McCormack said she told him U.S. actions complied
REVIEW AUTHORITY: ARCIDE M BOLSTER
1
CLASSIFICATION:· UNCLASSIFIED
DATE/CASE ID: 06 AUG 2009 200706444_
II

UNCLASSIFIED

L0908

UNCLASSIFIED
with the laws and Constitution of the United Stales and with international obligations.
U.S. Presi.dent George W. Bus.h brushed off reporters' questions on whether the allegations would be investigated.
"The United States of America does not torture. And that's important for people around the world to understand," Bush
saId in Texas.
QUIET DIPLOMACY
Under domestic pressure to make the United States give more information about the secret-prison allegations reported
by the Washington Post, Steinmeier told reporters he raised the issue.
But he also sought to stop the controversy from clouding an expected new drive to improve ties after the Bush
administration clashed with its key ally over the Iraq war.
Steinmeier agreed to the unusual move of not holding a joint news conference with Rice, where questions on the
scandal could have eclipsed a sense of cooperation the governments want to show on such issues as Iran and
Afghanistan.
.
Choosing to pressure in a private meeting was in keeping with what political analysts have predicted will be a change in
style from the previous German government's practice of airing its differences in public.
McCormack said the meeting was not dominated by "secret prisons" and lamented that the report had distracted from
the countries' diplomacy, which will intensify with Rice's trip, as well as visit this week to Germany by her deputy, Robert
Zoellick.
"Certainly I think that in the public discourse it is a topic that is taking up quite a bit of time," McCormack said.
(Additional reporting by Markus Krah in Washington and Patsy Wilson in EI Paso, Texas)

.I

IIREUTERS

2

UNCLASSIFIED
L0909

0

UNCLASSIFIED

From:
Sent:

To:
Cc:
Subject:

~Q:5o

.

Conklin, Maegan l
Pelofsky, Eric J
\Thursday, March 09, 2006 7:33 PM
Bellinger, John B (L Bureau)
Dorosin, Jo::=:.!sh~u~a-=L
(C/NODIS) 1

RELEASED IN PART
B 1, 1.4(B), 1.4(D)
_

,

BI

Attachments:

HI

John,
Attached please find a

draft note to the Secretary regardingl

_

Bl

thanks,
Eric

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
CLASSIFICATION: CONFIDENTIAL
DATE/CASE ID: 06 AUG 2009 200706444

1

UNCLASSIFIED
L0910

UNCLASSIFIED
Conklin, Maegan l
Hata, Marianne J
Thursday, March 02. 2006 12:17 PM
Bellinger, John B (L Bureau)
JCRC report - 15 minutes

From:

Sent:
To:
Subject:

RELEASED IN PART
BI,1.4(D)

Josh and Eric would like to see you shortly at 12:45PM to discuss ICRC report related
issues

----ortginal Message---

From:

sent:
To:
C<::
Subject:

Bellinger, John B(l Bureau)
Thursday, March 02, 2006 8:07 AM
Pelofsky, Eric J
Dorosin, Joshua l
RE: ICRC report

Let's set up a mtg.
----orlginal Message-From:
Pelofsky, Eric J
sent:
Wednesday, March 01, 2006 8:55 PM

To:

Bellinger, John B(l Bureau)

Cc

D~~Joohual

Subject:

tCRC report

John.

Bl

i..::-o:=.,......,=-:==-:r.,.,."..,...".,.,.."...,....,,==="""'=I"'n1'n'T......-::=:-='l"'"--------'----

lwe have also"

IB 1

thanks,
Eric

UNITED STATES DEPARTMENT OF STATE
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, A1ISS
REVIEW AUTHORITY: ARCHIE M BOLSTER
CLASSIFICATION: CONFIDENTIAL REASON: l.4(D)
DECLASSIFY AFTER: 2 MAR 2016
DATE/CASE ID: 01 JUL 2009 2007~6444
1

UNCLASSIFIED

L0911

UNCLASSIFIED
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SECRETIINOFORNIIMR
DTG:

041342Z DEC 08

FROM:

AMEMBASSY ~~DRID

·----·1ffiLEASEIrm-pART
B5, Bl, 1.4(D)

SERIAL:

·MADRID 001'280

CI.AcSS:

C O·N F.~ 0 E.~ ~ I A L.SECT~ON·Ol OF.~3~~~ ~Ql~aO

SUBJECT:

B5

REF:

A, 07 HADRID

P3 ,

O. ~~DRID 1021 Classified,By: Deputy
Chief of Mi~sion Arnp~d
A. Chacon "for reasons h 4 fbI and {d).
1.

.,

(SBU)

TEXT: SUMMARY: A hot issue i~ the
Spanish press since 2005,. ·the detainee
t~ansfer flights that allegedly
tr~nsited Spain from ·2002 ~'til 2006
have once again htt the headlines. The
most .recent flurry of' reporting ·began
~ove~er 30 when El Pai~, Spa:iri·.' s .
~eading ~ewspaper, printep several.
stories based on internal GOS documencs
purporting to relate U.S. requests i~
2002 for permission to use Spanish
airports should an emergency arise on
fl~ghts transporting terrorism detainees
to Guant.anamo. I

1-_---11 END' SGMVJl.RY. The Story that: ~'iill
Not Die

2. (SBO) The Guantanamo detainee fli9h~.
story has long since become a··press
staple in Spain. ~he story. appears on
f~ont' pages (starting in'~l Pais) and
disappears every two o~'~~;e~ mo~~hs,
An investigation is u~derway' in· .a
Spanish court, brought-by an. NGO which
claims illegally detained'Dersons· were
~ran"'nnrted .via ,SoBin. I

Lea:ks.

3.

~

(SHUll

rrt
reported

I

began ·NQver.~er 30· when El Pais
a document· recounting a 2002. meeting
between· the then-Spanish MiA· Director
Ge~eral tor North.America and the

Embas~Y'$ P~l;ti~a~~Mi~~t~ry-Coun~elor

(Nfl; iIi· which the u.s .. asKed; to use
Spain as an emergency lahding
destination for flights moving ·deca{nees
from Atghanistan ·to Guantanamo. The .
newspaper also described Q_second
q~cument from the same MFA official,
~ddres~ed to the MqD Secretary' General
~or Defense Policy, exp~esstng the MFA's.
willingness to grah.t ·ci)e U:.8;. r.~quest·
and suggesting< use of a "di'screet ..
military airport such as Moron. In. a
related article December 3, £1 Pais'
pUblished a February 2007 leccer from
the Spani;oh !?}:'e~. ident: of ·tne j.oint
l?er'maDe·nt· Coinmi t,tee ~hrch rnima'ges

. B5

implementa~ion'of ~~e.A~C, a~ki~9 ·th~

u.s.

section ~o confirm that the u:s~
was in compliance with Arti~1e 25.2 of
the ADC with respect to U.S~ rnilitaty
flights, to and from Guantanamo (,U~at
arti~le exempts from b~anket f~ight
cle~rances any.plane carrying persons. or
cargo that wquld be co~f=overs~a~ fo=
Spain). ~he newspaper also pUblist.ed
the U.S. sectior- resp~nse~ w~ic~ was in
the affirmative. {Note: In March 200;,
the Mob' decided that all .flignts to and
from· Guant~namo would require individual
cl~ar~n~e3; tha~

today).
4.

I

I

I

B5

.is·the proceouxe in use

I

(SEa)I
I
I F!'1 Moratinos announced· Decerr.ber

1
the formation of an. independe~t
~::::::::::::::::::::::::::::=_:_:_::::::::~~~in~VeS(lgatiYe
Learn includ~_.n_g _:~: __
?_~_ie_"fS

·B5
B5

SECRETllNOFORW~R

UNITED STATES DEPARTMENT OF STATE1 3
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

UNCLASSIFIED

L0912

UNCLASSIFIED
SE;CRETIINOFORNIIMR,

Il..----~_

'of Staff to t.ne FM, 1:he 'Secretary of

State for Foreign Affairs, and the
'Undersecretary of Stat~ for Foreign
Affairs as well as the n{'s
parliamentary advisor. On Decembe~ 2,
Moratino$ confirmed press' repo=ts ~he
investigative team has no~ been .able t~
locate the original of' the,2002 documen~
descri~e~ in paragraph' 1 {although £1
·Pai-s has ,printed a facsimile). I

I

_

I

Bl

6. (SBU) tHE PROSECUTOR HANDLING THE
RELATED ,COURT CASE INDICATED LAST y~~
THAT THERE,~AS NO PLAN TO'REQUEST
INFORMATION FROM 'THE OSG ,(REF-Ai.
HOWEVE~, TH$ LATE$T 'ROUND OF STORr~s HAS
INCLUDED ,SPECULATION THAT THE ,COURT
HIGHT SEEK T8STXMONY FROM AZNAR AND
MEMBERS OF HIS ADMINI~T~T~ON ~S' WELL AS
FROM 'U.S. EMBASSY OFFIC!ALS. ,~E HAVE

RECEIVED NO 'OFFICiAL ~OTIFiCATION OF ~~y

SUCH 'RE:QUESTS,

I

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!=OM1'1:::NT
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SECRETIINOORN/lMR
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UNCLASSIFIED
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13131

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AGUIRRE

'--~-------~_.::_:_=:c-::-~-=--:-::-:-::::-----"------.-----,.----

~ECRETHNOFORNfiMR

UNCLASSIFIED

L0914

UNCLASSIFIED

RELEASE~iy

Conklin, Maegan L
From:
Sent:

To:
SUbject:

~/L

B5

Dolan, JoAnn
Thursday, October 21,2004 6:08 PM
DoroSln, Joshua L; Deeks, Ashley S; Thessin, James H
FW: Friday 10:30 meeting/UN WG on Disappearances! inquiry on ghost detainees - guidance
needed

:B5

--Original Message-From:
Witten, samuel M
sent:
Thursday, October 21,2004 5;19 PM
To:
Brancato, Gilda M (Main State); Cummings, Edward R (Main State); Doran, JoAnn
ee:
Harris, Robert 1<; Dorosin, Joshua l; Hata, Marianne J; Wright, Elizabeth B
.
sUbie~
RE: Friday 10;30 meeting/UN WG on Disappearances! inquiry on ghost detainees - guidance needed

10:30 is fine with me.
----Original Message--From:
Brancato, Gilda M {Main State} sent:
Thursday, October 21,2004 5;10 PM
To:
Witten, samuel Mi Cummings, Edward R (Main State)i Dolan, JoAnn
ee: .
Hams, Robert-K; Dorosln, Joshua l; Hata, Matianne ]
FW: friday 10:30 meeting!UN WG on Disappearances! Inquiry on ghost detainees - guidance needed
Subject:

Could Sam, Ed, and JoAnn kindly meet with Will Taft, Bob and myself tomorrow morning (Friday) between 10:30 and
12:30, wiith 10:30 the best time for Will, on possible approaches to a UNCHR in ui from the Workin Grou on
Forced Disa
arances about ghost detainees ra roduced below.

IB5

ANNEX

WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES
General allesations
united, States of America
Working Group received information from non-governmental
organizations concerning the reported non-compliance by the
Government of the United States of America with provisions of
the Declaration on the Protection of All persons from
Enforced Disappearance.
The

Reports were received by the Working Group regarding secret
detention cente~s under IJnited States' authority in various
parts of the world, in which an unknown number of persons are
detained. Reports assert that there was inadequate provision
of notice to families about the capture of detainees and

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARClnE M BOLSTER
- DATE/CASE ID: 06 AUG 2009 200706444

1

UNCLASSIFIED
L0915

UNCLASSIFIED
thei~

conditions, legal status and rights. It is also
reported that it is unclear in many circumstances which U,S.
agency is u.ltimately responsible for the arrest or the
conditions of confinement of the detainees in these
facilities.
Reports further specify that the most sensitive and
high-profile detainees are not being held in Guantanamo
because it is believed that detainees there will eventually
be monitored by the U,S, courts. Xt is stated that terrorism
suspects are detained by the Untied States in "undisclosed
locations," presumably outside the United States, with no
access to the ICRC, no notification to families, no oversight
of any sort of their treatment, and in most cases no
acknowledgment that they are even being held. Information
was prOVided on 13 specific alleged detainees, apprehended in
places such as Pakistan, lndonesia, Thailand, Morocco, and
the United Arab Emirates, who have reportedly disappeared in
U.S. custody.
American authorities have also apparently refused to
disclose the names of men secretly detained during the past
few years within the UItited States. Families have not been
informed on the arrested persons' locations. Reports state
that some of these detainees have now been released or
deported.
End text.

« File: lEGAL-#119484-v1-WG_FD-9host_detainees_with_L_PM_changes. DOC»

2

UNCLASSIFIED
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RELEASED IN PART UNCLASSIFIED
...C...o...
" ...
kl..
in..,..
M_a_eg..a.."..l__
B_5

~_(j

1:6

Brancato, Gilda M (Main State)
Friday, October 22,200410:47 AM
Brancato, Gilda M (Main State); Witten, Samuel M; Cummings, Edward R (Main State); Dolan.
JoAnn
Harris. Robert K; Dorosin. Joshua L; Hata, Marianne J; Wright, Elizabeth B; Thessin, James
H; Gorove, Katherine M
RE: Friday 11:00 meeting/UN WG on Disappearances/possible optIons for a reply

From:
Sent:
To:

Cc:
Subject:

Attachments:

LEGAL-#119490-v1-Disappearances_with_DODJnsert_SR_reponse.DOC; lEGAL-#119484v1-WGJD_ghosLdetainees_with_L_PM_changes.DOC

B5

We remain open to other optIons.
See you shortly.
Thank you, Gilda
--..Original Message-From:
Brancato, Gilda M (Main State)
sent:
Friday, october 22, 2004 10:23 AM
To:
Witten, Samuel M; CUmmings, Edward R (Main State); Dolan, JoAnn
Ce:
Harris, Robert K; Dorosin, Joshua l; Hata, Marianne J; Wright, Elizabeth
SUbject:
RE: Friday 11:00 meeting/UN WG on Disappearances/ inquiry on ghost detainees - guidance needed

a

Reminder to all that our meeting is at eleven today. Thank you
----·Orlginal Message··_·- .
From:
Witten, Samuel M
Sent:
Thursday, October 21, 2004 5:19 PM
To:
Brancato, Gilda M (Main State); Cummings, Edward R (Main State); Dolan, JoAnn
ee:
Harris, Robert K; Dorosin, Joshua l; Hata, Marianne J; Wright, Elizabeth B
.
Subject:
RE: Friday 10:30 meeting/UN WG on Disappearances/ inquiry on ghost detainees - guIdance needed

. ---Original Message·····
Brancato, Gilda M (Main State)
From:
Sent:
Thursday, October 21, 2004 5:10 PM
To:
Witten, Samuel M; Cummings, Edward R (Main State); Dolan, JoAnn
Cc:
Harris, Robert K; Dorosin, Joshua l; Hata, Marianne J
Subject:
FW: Friday 10:30 meeting/UN WG on Disappearances/Inquiry on ghost detainees • gUidance needed .

Could Sam, Ed, and JoAnn kindly meet with Will Taft, Bob and myself tomorrow morning (Friday) between
. from e
10:30 and 12:30, wiith 10:30 the best time for Will, on possible approaches to a UNCHR i
Workin Grou on Forced Disa earances about host detainees ra roduced below.

B5

Please confirm that 10:30 Friday works for you. Otherwise we will meet later in the morning (afternoon will
not work).

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 22 JUN 2009 200706444

1

UNCLASSIFIED
L0917

UNCLASSIFIED
Thank you all, Gilda

ANNEX

WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES
General allegations
United States of America
The working Group received information from non-governmental
organizations concerning the reported non-compliance by the
Government of the United states of America with provisions of
the Declaration on the Protection· of All persons from
Enforced Disappearance.
Reports were received by the Working Group regarding secret
detention centers under United States' authority in various
parts of the world. in which an unknown nUmber of persons are
detained. Reporcs assert that there was inadequate provision
of notice to families about the captu~e of detainees and

their conditions, legal status and rights. It is also
reported that it is unclear in many circumstances which U.S.
agency is ultimately responsible for the arrest or the
conditions of confinement of the detainees in these
facilities.
Reports further specify that the most sensitive and
high-profile detainees are not being held in Guantanamo
because it is be~ieved that detainees there will eventually
be monitored by the U.S. courts. It is stated that terrorism
suspects are detained by the untied States in "undisclosed
locations," presumably outside the united States. with no
access to the ICll.C, no not:l.fication to familiel!, no oversight
of any sort of' their treatment. and in most cases no
acknowledgment that they are even being held. Information
was provided on 1.3 specific alleged detainees, apprehended in
places such as Pakistan. Indonesia. Thailand, Morocco. and
the United Arab Emirates, who have reportedly disappeared in
U.S. custody.
American authorities have also apparently refused to
disclose the names of men secretly detained during the past
few years within the United States. Families have not been
informed on the arrested persons' locations. Reports state
that some of these detainees have now been released or
deported.
End text.

LEGAL-#119490-vl

« File: LEGAL4f.119484-v1-WG_FD-9host_detainees_with_l...;PM_changes.DOC.»

-Disappearance...

uNCLASSIFIED
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lEGAl~#1194B4-vl

·WGJD_ghost_d...

uNCLASSIFIED
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RELEASED IN pART
B5, B~, l.4(D)

Conklin, Maegan L
Dolan, JoAnn
Friday, July 16, 2004 6:56 PM
Taft IV, William H; Thessin, James H; Cummings, Edward R{Main State)
Solomon, Steven A; Cummings. Edward X • Geneva; Dorosin, Joshua L
RE: ICRC
.

From:
Sent:

To:
Cc:
Subject:

Will/Jim/Ed: Rich Greene called to report visit this afternoon by JCRC Washington Delegation (Geoffrey Loane and Finn
Ruda) to PRM. They indicated that they would be coming around to see L again soon, basically to report developments in
their first month.

I saw a press trans9ript on this new office earlier today which I will forward to addressees as werl. The Secretary signed
an order today crealin the office to serve as a sin Ie oint of focus for detainee affairs within DOD i"clud;" dealio s with
ICRC.

B5

-,-·Original Message--·_·

From:
sent:
To:
SUbject:

Doran, JoAnn .
Thursday, July 15, 20047:20 PM
Taft: lV, William H
FW: JCRC

B5
···-·Orlglnal Message----.
MaHone!<, Tom V
sent:
Thursday, Jury 15, 2004 1:28 PM
To:
A1lder, Lois L; Blanck Jr, John I; Cook, Daphne W; Dalton, Robert E; DennIs, MIchael J; Dolan, JoAnn; HaInes, Avril 0; Ingber,
.
Rebecca M; Legal-L·HRR-dl; Peay, T Michael
.

From:

SUbie~:

IeRe

UNCLASSIFIED per E.O. 12958

Baltimore Sun, July 15, 2004

Pentagon Says It's Hiding No One From'Red Cross
WASHINGTON - The Pentagon denied yesterday that it is hiding any imprisoned terrorism suspects from
the.Intemational Committee of the Red Cross. A Defense Department'spokesman would not comment on
whether other U.S. agencies might be doing so.
.
"I can say that JCRC has access to all detainee operations under our control," said Larry Di Rita, chief
~Ih§111(J'm~~'hAJj~It
Rumsfeld. "Beyond that, I'm just not prepared to discuss it."
CLASSIFIED BY DEPT~ oJfsTArn;L HEDGBETH, DAS, AlGIS

Jtlll~{§)x MV&eHil~t~M §b>~Ymr it m~ht be holding terrorism suspects at foreign locations. On

CLASSIFICATION: CONFIDENTIAL REASON: 1.4(.lJi
DECLASSIFY AFTER: 16 JUL 2014
DATE/CASEID: 06 AUG 2009 200706444

.

UNCLASSIFIED
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UNCLASSIFIED
Tuesday, Antonella Notari, spokeswoman for the Switzerland-based ICRe, said terrorism suspects reported
by the FBI as captured have never turned up in detention centers known to the Red Cross, and the United
States has failed to reply to Red Cross demands for a list of all detainees.
/

Tom Malionek
ANALYST FOR Boundaries - Boundary Waters· Conservation - Environment- Fisheries - Human Rights· Maritime Mailers
OFFICE OF THE AssISTAN, LEGAL ADVfSER FOR TRErATYAFFAIRS (L/T)

5420HST
PHONE . 202-647-1336
FAX 202-736-7541

(direct)

2

UNCLASSIFIED
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I,

i

.

:

UNCLASSIFIED

(2.o .. a.

~ on steom: Memo Le CIA Take Detainees Out of Ira

~ __ )
Page I of4 (

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Memo Lets CIA Take Detainees Out of Iraq
. Practice Is Called Serious Breach ofGeneva Conventions
By Dana Priest

Washington Post Sta:tfWriter
Sunday, October 24, 2004; Page AO1

RELEASED IN PART
B5

At the request ofthe CIA, the Justice Department drafted a confidential memo
that authorizes the agency to transfer detainees out of Iraq for interrogation - .
a practice that intemationallegal specialists say contravenes the Geneva
Conventions.

One intelligence official fammar with the operation said the CIA has used the
March draft memo as legal support for secretly transporting as many as a
dozen detainees out of Iraq in the last six months. The agency has concealed
the detainees from the International Committee ofthe Red Cross and other
authorities, the official said.
The draft opinion, written by the Justice Departmenfs Office oftegal Counsel
and dated March 19,2004, refers to" both Iraqi citizens and foreigners in Iraq,
who the memo says are protected by the treaty .It permits the CIA to take
Iraqis out ofthe country to be interrogated for a "brief but not indefinite
period." It also says the CIA can permanently remove persons deemed to be
"illegal aliens" under "local immigration law."
Some specialists in international Jaw say the opinion amounts to a
reinterpretation ofone ofthe most basic rights ofArticle 49 ofthe Fourth
Geneva Convention. which protects civilians during wartime and occupation,
including insurgents who were not part ofIraq's military.
The treaty prohibits the "[i]ndividual or mass forcible transfers, as well as
deportations ofprotected persons from occupied territOJ:y .•. regardless of
their motive."
The 1949 treaty notes that a violation of this particular provision constitutes a "grave breach" ofthe
accord, and thus a "war crime" under U.S. federal law, according to a footnote in the Justice Department
draft. "For these reasons," the footnote reads, "we recommend that any contemplated relocations of
'protected persons' from Iraq to facilitate interrogation be carefully evaluated for compliance with
Article 49 on a case by case basis." It says that even persons removed from Iraq retain the treaty's
protections, which would include humane treatment and access to international monitors.
During the war in Afghanistan, the administration ruled that at Qaeda fighters were not considered
"protected persons" under the convention. Many ofthem were transferred out ofthe countIy to the naval

base in Guantanamo Bay. Cuba, and elsewhere for interrogations. By contrast, the U.8. government
deems former members of SaddaQ:l Hussein's Baath Party and military, as well as insurgents and other
civilians in Iraq, to be protected by the Geneva Conventions.
International law experts contacted for this article described the legal reasonmg contained in the JU$tice
Department memo as unconventional and disturbing. UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: ARCIDE M BOLSTER
DATE/CASE ill: 22 JUN 2009 200706444

http://www.washingtonpost.comlac2lwp--dyiJ/A57363-20040ct23?language=printer

.

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wisbingtonpostcom: Memo Lets CIA Take Detainees Out of Iraq

Page2of4

liThe overall thrust ofthe Convention is to keep from moving people out ofthe country and out of the
protection ofthe Convention,It said former senior military attorney Scott Silliman, executive director of
Duke University's Center on Law, Ethics and National Security. "The memorandum seeks to create a
legal regime justifying conduct that the international community clearly considers in violation of
intemationallawand the Convention." Silliman reviewed the document at The ~osts request.
The CIA, Justice Department and the author of the draft opinion, Jack L. Goldsmi~ former director of
the Office ofLegal CounSel, de,elined to comment for this article.
CIA officials have not disclosed the identities or locations of its Iraq detainees to congressional
oversight committees~ the Defense Department or CIA investigators who are reviewing detention policy,
according to two informed U.S. government officials and a confidential e-mail on the subject shown to
The Washington Post
White House officials disputed the notion that Goldsmith's interpretation of the treaty was unusual,
although they did not explain why. 'The Geneva Conventions are applicable to the conflict in Iraq, and
our policy is to comply with the Geneva Conventions/' White House spokesman Sean McCormick said.

The Office ofLegal Counsel also wrote the Aug. 1,2002. memo on torture that advised the CIA and
White HoU;se that torturing at Qaeda terrorists in captivity abroad "may be justified," and that
international laws against torture "may be unconstitutional if applied to interrogations" conducted in the
war on terrorism. President Bush's aides repudiated that memo once it became public this June.
The Office of Legal Counsel writes legal opinions considered binding on federal agencies and
departments. The March 19 document obtained by The Post is stamped "draft" and was not finalized.,
said one U.S. official involved in the legal deliberations. However, the memo was sent to the general
counsels at the National Secwity COuncil, the CIA and the deparlments ofState and Defense.

"The memo was a green light," an intelligence official said. "The CIA used the memo to remove other
people from Iraq."
Since the Sept. 'II, 2001, attacks, the CIA has used broad authority granted in a series orlegal opinions
and guidance from the Office ofLegal Counsel and its own general counsel's office to transfer,
interrogate and detain individuals suspected of terrorist activities at a series ofundisclosed locations
around the world.
.
According to current and former agency officials, the CIA has a rendition policy that has permitted the
agency to transfer an unknown number of suspected terrorists captured in one country into the hands of
security services in other countries whose record ofhuman rights abuse is well documented. These
individuals, as well as those at CIA detention facilities, have no access to any recognized legal process
or rights.
The scandal at Abu Ohraib, and the investigations and congressional hearings that followed, foJ'CCd the
disclosure ofthe Pentagon's behind~osed·doors debate and classified rules for detentions and
interrogations at Ouantanamo Bay and in Mghanistan and Iraq. Senior defense leaders have repeatedly
been caned to explain and defend their policies before Congress. But the CIA's policies and practices
remain shrouded in secrecy. /

The only public account of CIA detainee treatment comes from soldier testimony and Defense
Department investigations of military conduct. For instance, Army Maj. Oen. Antonio M. Tagubats

http://www.washingtonpostcomlac2lwp-dyn/A57363.20040et23?language=printer

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~gtonpost.com: Memo Lets CIA Take Detainees Out of Iraq

Page 3 of4

.

,

report on Abu Gbraib criticized the CIA practice ofmaintaining "ghost detainees" - prisoners who were
Dot officially registered and were moved around inside the prison to hide them from Red Cross teams.
Taguba called the practice "deceptive~ contrary to Army doctrine and in violation ofintemationallaw.II
Gen. Paul I. Kern, who oversaw another Army inquiry, told Congress that the number ofCIA ghost
detainees "is in the dozens, to perhaps-up to 100;\

The March 19,2004, Justice Department memo by Goldsmith deals with a previously unknown class of
people - those removed from Iraq.
It is not clear why the CIA womd feel the need to remove detainees from Iraq for interrogation. A U.S.
govemme;nt.official who has been briefed on the CIA's detention practices said some detainees are
probably taken to other countries because "that's where the agency has the people, expertise and
interrogation facilities, where their people and programs are in place.II
The origin ofthe Justice Department memo is directly related to the only publicly acknowledged ghost
detainee,
Abdul Rahman Rashul, ~cknamed "Triple X" by CIA and military officials.

Hiwa

Rashul, a suspected member ofthe Iraqi Al·Ansar terroriSt group, ~ captuted by Kurdish soldiers in
June or July of2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation.
In October, White House counsel Alberto R. Gonzales asked the Office oftegal Counsel to write an
opinion on "protected persons" in Iraq and rule on the status ofRashul. according to another U.S.
government official involved in the deliberations.

Goldsmith, then head ofthe office, ruled that Rashul was a "protected person" under the Fourth Geneva
Convention. and iherefOte had to 'oe brought 'back to Iraq, several intelligence and defense officials w.d.
The CIA was not happy with the decision, according to two intelligence officials. It promptly brought
RashuI back and suspended any other transfers out ofthe country.
At the same time, when transferring RashuI back to Imq. then..cIA Director Oeorge J. Tenet asked
Defense Secretary Donald H. Rumsfeld not to give Rashul a prisoner number and to hide him from
International Red Cross officials, according to an account provided by Rumsfeld during a June 17
Penblgon news conference. Rumsfeld complied.
As a "ghost detainee,tI RashuI became lost in the prison system for seven months.

Rumsfeld did not fully explain the reason he had complied with Tenet's request or under what legal
authority he could have kept Rashul hidden for so long. "We know from our knowledge that rrenet] has
the authority to do this.If he said.

Rashul. defense and intelligence officials noted, had not once been interrogated since he was returned to
Iraq. His c~t status is unknown.
In the one-page_October 2003 interim ruling that directed Rashul'sre~ Goldsmith also created a new
category ofpersons in Iraq whom he said did not qualify for protection under the Geneva Conventions.
They are non-Iraqis who are Dot members ofthe former B~ party and who went to Iraq after the
invasion.

http://www.washingtonpostcomlac'lJwp-dynlA57363.20040et23?language=printer

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witshingtonpostcom: Memo Lets CIA Take Detainees Out of Iraq

Page4of4

After Goldsmith's ruling> the CIA and Gonzales asked the Office of Legal Counsel for a more complete
legal opinion on "protected persons" in Iraq and on the legality of transferring people out ofIraq for
intem>gation. "That case started the CIA yammering to Justice to get a better memo," said one
intelligence officer familiar with the interagency discussion.

Michael Byers> a professor and intemation8llaw expert at the University of British Columbi~ said that
creating a legal justification for removing protected persons from Iraq "is extraordinarily disturbing,"
"What they are doing is interpreting an exception into an all-encompassing right, in one ofthe most
fimdamental treaties in history>n Byers said. The Geneva Convention "is as close as you get to protecting
human rights in times ofchaos. There's no ambiguity here."
...

C 2004 The Washinlirton Post Comnanv
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lOfl5f2004

UNCLASSIFlFEErFD\---------L0925

Page 1 of2

UNCLASSIFIED
Baumert, Kevin A
From:

Hill, Steven R

.Sent:

Wednesday, August 29,20075:41 PM

To:

Baumert, Kevin A

RELEASED IN PART
B5, B6

SUbject: RE: ICCPR One year follow-up

B5
e onventJon and m

http://www.usmission.ch/Press2QQ6/Q5Q5BellingerOpenCAT.htrnl

From: Baumert, Kevin A

sent: Wednesday, August 29, 2007 4:50 PM
To: Paclmanabhan, VJjay M
CC: Deeks, Ashley S; Harris, Robert K; Hill, Steven R
Subject: FW: ICCPR One year follow-up
BS

Thanks,
Kevin

-----Original Message~-_-_-_-_~
From: Robert Harris
Sent; Monday, August ~2""0r-,-2""OO""""/~2"'-::""'5""'O-PMn-----------To: Baumert, Kevin A;r
Cc: Hill, Ste:hen A (Baghdad); Rarr1s, Robert K;
~
I Padmanabhan, Vij ay M; "I<'Il'/"J.x""'o"'.....n ,---"G"'1""na....,M.,....--------SUbJect: ICCP One year follow-up

I

I

I

B6

i~

I

Kevin,
BS

1122/2008

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
DATE/CASE In: 24 AUG 2009 200706444

UNCLASSIFIED
L 0926

'.

.

UNCLASSIFIED

Page 2 of2

I

. . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , B5

Thanks to all.

Bob

1/22/2008

UNCLASSIFIED
L 0927

Page lof2

UNCLASSIFIED

J-,!.DS

Conklin, Maegan l

RELEASED IN PART
B 1, 1.4(B), 1.4(D), B5, B6

From: . Garber, Judith G
Sent:

Wednesday, August 27,20081:21 PM

To:

Wilson, Damon M. (Europe-NSC)'; Fried, Daniel; Sterling, Adam H. (Europe-NSC)

Cc:

Bellinger, John B (L Bureau); Ansley, Judith

SUbject: RE:

B1

I'----------------------------'

Bl
I

Per Embassy Warsaw, Radio Zet reported the information last Friday that the Pro~uracy had opened an
investigation based on information they claimed came from a proseutor in the Giertych case. Others picked up
that report and ran with it.

B6

From: Wilson, Damon M. (Europe-NSC) [mailto:1

sent: Wednesday, August 27, 20088:27 AM

'-To: Fried, Daniel; Sterting, Adam H. (Europe-NSC)
Cc: Bellinqer, John B (L Bureau); Garber, Judith G; Ansley, Judith
SUbject: {

......J

B1
B5.

'I' - - - - - - - - - - - - - - - - - - From: Fried, Daniel [mailto:FriedD@state.sgov.gov]
sent: Wednesday, August 27, 2008 8:05 AM
. To: Wilson, Damon M. (Europe-NSC); Sterling, Adam H. (Europe-NSC)
Cc: Belllnrer, John B (L Bureau); Garber, Judith G
SUbject:

B1\
I

B1,B5

Ul'U.lhU

3/27/2009

~~A

l'l.l UJ1 ~.ll\..l~

REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: SECRET REASON: 1.4(B), 1.4(D)
DECLASSIFY AFTER: 27 AUG 2028
DATE/CASE ID: 24. AUG 2009 200706444

UNCLASSIFIED
L 0928

_ _ _ _ _ _ _ _ _ _ _ _ _ _1

UNCLASSIFIED

Page 2 of2

BI
BI

3/27/2009

UNCLASSIFIED
L 0929

UNCLASSIFIED

Page lof2

)
Conklin, Maegan L
From:

Witten, Samuel M

sent:

Wednesday, November 3D, 20051:22 PM

To:

Bellinger, John B (L Bureau); Dorosin, Joshua L

':~:'..

SUbject: FW: Transport of prisoners by CIA is not a crime - Portuguese paper

RELEASED IN PART
B5

---C>riginal MessageFrom: Allegrone, Kathleen H
sent: Wednesday, November 30,20051:20 PM
To: Witten, samuel M; Propp, Kenneth R; Graffy, Colleen P
Cc: Volker, Kurt 0
Subject: FW: Transport of priSoners by CIA is not a crime - Portuguese paper

·B5

From: Vidugiris, Vaida

sent: Monday, November 28,20053:35 PM
To: EUR-WE-DL
SUbJect: Transport of prisoners by CIA is not a aime - Portuguese paper

Source-Date: 1112812005

Transport of prisoners by CIA is not a crime· Portuguese paper
EUP20051128950037 Lisbon Diario de Noticias (Internet Version-WWW) in Portuguese 0000 GMT 28 Nov 05
[FBIS Translated Text]
Transport of prisoners by.CIA is not a crime - Portuguese paper
Text of article by Luis Delgado: "The CIA flights" by Portuguese newspape'r Diario de Noticias website on 28 November
Due to a shortage of topics, some politicians, parties and commentators are very concerned about CIA flights
coming through Portugal, and in some cases about their landing at national airPorts, presumably for refuelling.
There are pictures. videos and an endless number of details making the story interesting. It is that time of year.
Can anyone imagine, even roughly, how many planes fly every day, at all hours, chartered by various secret
services (and we are not speaking about secret polices and similar) throughout the $kies, backwards and
forwards? Certainly no small number - and perhaps the CIA do what the British, French, German and others'
secret services do. Has anyone by any chance seen those planes transporting prisoners or members of AIQa'idah or other terrorist organizations. And even if they do transport them, is that a crime?
The CIA, for now, is an intelligence agency of the most democratic of all countries, where the accountability of its
institutions, open or secret, is cheeked every day with a fine toothcomb by dozes of independent groups such as
Congress, commissions and a media with unrivalled power anywhere else in the world.
It is public knowledge that many terrorist group prisoners are taken to the Guantanamo base in Cuba. It is said but this is a different matter from the CIA flights ~ that they are tortured and maltreated but many opposition
congressmen have visited the base and none of this was confirmed.
It is perhaps a good idea to have broader investigations in this area. But what worries some Portuguese parties,
however, is whether CIA chartered planes flew over or landed in Portugal. So what? Could it be that our ~arrowUNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
312712009
DATE/CASE ID: 24 AUG 2009 200706444

UNCLASSIFIED
L 0930

UNCLASSIFIED

Page 20f2

mindedness still allows us to be under the illusion that there is no constant toing and froing of civil and military
planes carrying dozens of things, including agents and not prisoners every day of the year? Do the Portuguese
think that there are no other means and routes for this toing and froing? For crying out loud.

(Description of Source: Lisbon Diario de Noticias (lntemet Version-WWW) in Portuguese - center-right national
daily newspaper; privately owned, part of Lusomundo group; readership: 84,000]
THIS REPORT MA Y CONTAIN COPYRIGHTED MATERIAL. COPYING AND DISSEMINATlON IS PROHIBITED
WITHOUT PERMISSION OF THE COPYRIGHT OWNERS.

Unclassified

3/2712009

UNCLASSIFIED
L 0931

UNCLASSIFIED

j

Conklin, Maegan l

RELEASED IN PART
Bl, 1.4(B), 1.4(D)

From:

Aidekman. David S
Wednesday. January 25. 2006 2:49 PM
Hofmann. KarlW(Paris)
Bellinger, John B (L Bureau)(L-FO); Rosenblatt. Josiah (Paris)(Paris)

Sent:

To:
Cc:

I

SUbject:

I

1

Karl - thanks for your email and good to hear from you.

I 'ust had the first op ortuni

to s eak with Phili toda as he landed in Zurich from China.

Bl

Philip is on the phone now with Kurt Volker here and I hope to learn more.
If you need to speak with Philip directly. he is reachable by phone in Davos through State Ops and also tells me that he is
receiving unclassified emaHs on his blackberry.
-Dave
From:

sent:
To:

ce

SUbject:

I

Hofmann, Karl W
Wednesday, January 25, 2006 9:23 AM
Zelllcow, Philip D(C)
Aidekman, David S(C); Bellinger, John B 'L Bureau); Rosenblatt, JOSiah (Paris)

HI
BI

. I

UNITED STATES DEPARTMENT OF STATE
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, AlGIS
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: CONFIDENTIAL REASON: 1.4(B), 1.4(D)
1
DECLASSIFY AFTER: 25 JAN 2021
DATE/CASE ID: 24 AUG 2009 200706444

UNCLAS·SIFIED
L 0932

UNCLASSIFIED
L
' Mae _a..
Co okl In,
9 n
From:
Sent:

RELEASED IN PART
B 1, l.4(B), 1.4(D) "-'_r.et
I ......
I':l J

9_

Volker, Kurt D
Wednesday. January 25, 2006 8:30 PM
Bellinger, John B (L Bureau); Hofmann, Karl W; Zelikow, Philip D(C}
Aidekman. David sec>: Rosenblatt. Josiah (P,riS); Johnson, David T; Skinner, Charles B

.

To:

Cc:

I

SUbject:

I

.

Bl
Bl

From: Bellinger, John B (L Bureau)

sent: Wednesday, January 25, 2006 8:01 PM
To: Hofmann, Karl Wi Zelikow, Philip D(C)
Cc: Aidekman, David S{C); Rosenblatt, Josiah (Paris); Volker, Kurt 0

Subject: I

I

Bl

Thanks Karl. Philip is in Davos. I think we are hoping to move the meeting up to early afternoon on Monday. January 30.
Philip and I will fly over with S and Dan Fried will join us. Kurt is coordinating logistics.
.
--ortginal Message-From:
Hofmann, Kart W
Wednesday, January 25, 2006 9:23 AM
sent:
To:
Zelikow, Philip D(C)
ce:
Aidekman, David seC); Bellinger, John B (L Bureau); Rosenblatt, Josiah (Paris)
~~~

I

Bl

I

131

UNITED STATES DEPARTMENT OF STATE
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, AlGIS
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: CONFIDENTIAL REASON: 1.4(B), 1.4(D)
DECLASSIFY AFTER: 25 JAN 2021
1
DATE/CASE ID: 24 AUG 2009 200706444

UNCLASSIFIED
L 0933

UNCLASSIFIED
Conklin, Maegan L
Olson, Peter M
Tuesday, January 24, 2006 9:58 AM
Dorosin, Joshua L
Bellinger, John B (L Bureau)
FW: Bellinger mtg wI Danish legal adviser Taksoe-Jensen

From:
Sent:
To:

Cc:
SUbject:

RELEASED IN PART
B5, B 1, 1.4(B), 1.4(D)

Some Denmark-specific detainee issues.
--Original Message-From:
Maher, John 0
Monday, January 23, 2006 6:00 PM
sent:
To:
Olson, Peter M; Lawton, Daniel J
Cc:
Middleton, Victoria 5
Subject:
RE: Bellinger mtg wI Danish legal adviser Taksoe-Jensen

Peter,

,....._ _..,---,......,........,....---:-

-:----:-:----,:------:-_--:....,....-_--:-:-:---;--_--;-----;-----:-

--11 The issue has died doLn

somewhat, but not gone away, since the secretary addressed it a few weeks back.

Bl

A Danish soldier was recently convicted of abusing Iraqi prisoners during interrogations, but got a suspended sentence
I
because the court said her higher commanders were largely to blame for not giving clearer instructions. I
it was along the lines of withholding water and
blankets.

I

B5

I

Dan Lawton of Embassy Copenhag~n might have more to add.
John

From: Middleton, Victoria 5

sent: Monday, January 23,20065:55 PM
. To: Olson, Peter M; Maher, John 0
.
SUbject: RE: Bellinger mtg wI Danish legal adviser Taksoe-Jensen

B5,Bl

i
From: Olson, Peter M

sent:

Monday, January 23, 2006 5: 19 PM
To: Maher, John 0
Cc: Middleton, Victoria S
Subject: Bellinger mtg wI Danish legal adviser Taksoe-Jensen

UNITED STATES DEPARTMENT OF STATE
CLASSIFIED BY DEPT. OF STATE, L. HEDGBETH, DAS, AlGIS
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: CONFIDENTIAL REASON: 1.4(B),1.4(D)
DECLASSIFY AFTER: 24 JAN 2016
DATE/CASE ID: 24 AUG 2009 200706444

John:
with T-J on Frida

B5

Feb. 3 then havin lunch with him.

'r=--.::-:=c=-=-::T1=-::--::c::-F.:~=_=_:_:-:-:m~--r--.::-==_::-:::-:r-.:=--...__

- - - - - - - - - - - - - - - l FYI in the past year

urope.

1

UNCLASSIFIED
L 0934

UNCLASSIFIED
Thanks, Peter

2

UNCLASSIFIED,
L 0935

UNCLASSIFIED

Page 1 of2

Co'nklin, Maegan L
From:

Dolan, JoAnn

Sent:

Tuesday, March 08,20058:34 PM

To:

Filippatos. James

Cc:

Dorosin, Joshua L; Deeks, Ashley S; Thessin, James H

RELEASED IN PART
B5

Subject: FW: USNWR 6/26/04 Iraq's invisible man
B5

6/28/04
Nation & World
Iraq's invisible man
A 'gh9st' inmate's strange life behind bars
By Edward T. Pound
At a briefmg last week, Defense Secretary Donald Rumsfeld was asked if there was a plan
to hide a Middle Eastern terrorist, held secretly in a military jail in Iraq, from international
Red Cross inspectors. StandiQg on the podium, he responded: "Not on my part." But a
classified order, issued at his behest by the top military commander in Iraq, tells a different
story: "Notification of the presence and or status ofthe detainee to the International
Committee of the Red Cross, or any international or national aid organization, is prohibited
pending further guidance."
The Pentagon and the CIA are the major
players in the affair of the suspected terrorist
known as "Triple x." Rumsfeld said he ordered that the man be held in secret, based on a
request from CIA Director George Tenet. Triple X has been held in a guarded room at the
High Value Detainee facility near Baghdad since November. In that time, his name was
never entered in the official roster of detainees, meaning the Red Cross wouldn't have .
known he was there. The Geneva Conventions require the United States and other countries
to give the Red Cross access to detainees, although restrictions are permissible for military
reasons. Officials say the military is in the process of recording Triple X in the books.
Rumsfeld says the prisoner "has been treated humanely."
The practice of hiding prisoners--so-called ghost detainees--was sharply criticized by Maj.
Gen. Antonio Taguba in a recent report detailing Army abuses of prisoners at the Abu
Ghraib prison near Baghdad. He describe<;l it as "deceptive, contrary to Army doctrine, and
in violation of intemationallaw."
"No altar boy." Triple X's status as a ghost was first disclosed by U.S. News. Pentagon and
intelligence officials identified him as a high-ranking member of Ansar aI-Islam, an Iraqi
terrorist group with links to Abu Musab Zarqawi, who is believed to be responsible for
beheading American Nicholas Berg and for attacks on coalition forces.
The CIA has declined to say why Tenet wanted Triple X kept off the books. An American

4/6/2009

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: JOHN S BLODGETT
CLASSIFICATION: UNCLASSIFIED
DATE/CASE ID: 24. AUG 2009 200706444

UNCLASSIFIED
L 0936

UNCLASSIFIED

Page 2 of2

intel,ligence official says the man--identified by other sources as Hiwa Abdul Rahman
Rashul--was arrested by the Kurdish military last summer. For months, the CIA interrogated
Rashul at an undisclosed location, officials say, and he provided information on Ansar alIslam's structure and training. "This guy was no altar boy," the intelligence official says. The
man, he adds, was involved in planning terrorist attacks in Iraq and elsewhere.
RashuJ.was returned to Iraq on October 29. On November 18, Ll. Gen. Ricardo Sanchez, the
top U.S. commander in Iraq, issued a classified order directing guards with the 800th
Military Police Brigade to hide Rashul. The order was coded "Flash Red," meaning, says
one' military source, that it was "hot." It says that Sanchez's command "accepts custody and
detains Hiwa Abdul Rahman Rashul, a high-rahking Ansar ai-Islam member." The order
required extraordinary secrecy. Rashul's name could not be disclosed to the Red Cross or to
a foreign government. It prohibited the Army from entering Rashul's name in any electronic
prisoner database.
Other requirements of the order include:
Rashul will "remain segregated and isolated from the remainder of the detainee population.
Under no circumstances will his presence be made known to the detainee population ... "
"Only military personnel arid debriefers will have access to the detainee.... Knowledge of
the presence of this detainee will be strictly limited on a need-to-know basis."
"Any reports from interrogations or debriefings will contain only the mininum amount of
source information .... No source reference will bemade to identify [Rashul's] status,
membership in Ansar ai-Islam, or other terrorist group."
Despite all this secrecy, Rashul has been interrogated only once--and then only briefly, a
Pentagon official says. Even though her brigade was responsible for holding the man, Brig.
Gen. Janis Karpinski says, she's puzzled by the way he was handled. "It was bizarre," she
says. "He had been there a long time, and nobody was coming to see him, interrogate him."
At one point, she asked Sanchez's legal staff for guidance "on what to do with him." But
when her deployment ended and she returned to the States in February, Karpinski says, "he
was still sitting there."

4/6/2009

UNCLASSIFIED
L 0937