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<h3><font size=3 color="#003399"><b>Alleged secret detentions and
unlawful inter-state transfers of detainees involving Council of Europe
member states - draft Recommendation and
Resolution</b></font></h3><font size=3>
<a href="http://assembly.coe.int/ASP/APFeaturesManager/defaultArtSiteView.asp?ArtId=469" eudora="autourl">
http://assembly.coe.int/ASP/APFeaturesManager/defaultArtSiteView.asp?ArtId=469</a>
<br><br>
<a href="http://assembly.coe.int/CommitteeDocs/2006/20060606_RenditionsMap_EN.jpg">
Graphic image of global ''spider's web'' (JPEG)</a> <br>
<a href="http://assembly.coe.int/Main.asp?Link=/CommitteeDocs/2006/20060606_Ejdoc162006PartII-FINAL.htm">
Mr Marty's explanatory memorandum (HTML)</a> <br><br>
<br><br>
<u>Provisional version<br><br>
</u>7 June 2006<br><br>
Alleged secret detentions and unlawful inter-state transfers of detainees
involving Council of Europe member states<br><br>
</font><font size=4><b>Committee on Legal Affairs and Human Rights</b>
<br><br>
</font><font size=3><i>Rapporteur: Mr Dick Marty, Switzerland, Alliance
of Liberals and Democrats for Europe<br><br>
</i><b>A. Draft resolution<br><br>
</b></font><font size=2>1. The Council of Europe is both the point of
reference and the guardian for human rights, democracy and respect for
the rule of law in Europe. It draws its legal and moral authority from,
<i>inter alia</i>, the common standards of human rights protection
embodied in the European Convention on Human Rights (ECHR) and the
European Convention on the Prevention of Torture (ECPT), to which all of
its 46 member States subscribe.<br><br>
2. The Parliamentary Assembly of the Council of Europe places human
rights at the heart of its work. The Assembly must raise the alarm
internationally whenever human rights are set aside, or when established
standards of their application are undermined.<br><br>
3. The Assembly reaffirms its absolute commitment to overcoming the
threat of terrorism; but it must equally speak out in the strongest
possible terms against the numerous and systematic human rights abuses
committed in the pursuit of the so-called "war on terrorism".
It considers that such violations play into the hands of the terrorists
and ultimately serve to strengthen those who aim to destroy the
established political, legal and social order.<br><br>
4. The United States of America finds that neither the classic
instruments of criminal law and procedure, nor the framework of the laws
of war (including respect for the Geneva Conventions) has been apt to
address the terrorist threat. As a result it has introduced new legal
concepts, such as "enemy combatant" and "rendition",
which were previously unheard of in international law and stand contrary
to the basic legal principles that prevail on our continent.<br><br>
5. Thus, across the world, the United States has progressively woven a
clandestine "spider’s web" of disappearances, secret detentions
and unlawful inter-state transfers, often encompassing countries
notorious for their use of torture. Hundreds of persons have become
entrapped in this web, in some cases merely suspected of sympathising
with a presumed terrorist organisation.<br><br>
6. The "spider’s web" has been spun out with the collaboration
or tolerance of many countries, including several Council of Europe
member States. This co-operation, which took place in secret and without
any democratic legitimacy, has spawned a system that is utterly
incompatible with the fundamental principles of the Council of
Europe.<br><br>
7. The facts and information gathered to date, along with new factual
patterns in the process of being uncovered, indicate that the key
elements of this "spider’s web" have included a world-wide
network of secret detentions on CIA "black sites" and in
military or naval installations; the CIA’s programme of
"renditions", under which terrorist suspects are flown between
States on civilian aircraft, outside of the scope of any legal
protections, often to be handed over to States who customarily resort to
degrading treatment and torture; and the use of military airbases and
aircraft to transport detainees as human cargo to Guantanamo Bay in Cuba
or to other detention centres.<br><br>
8. The Assembly condemns the systematic exclusion of all forms of
judicial protection and regrets that, by depriving hundreds of suspects
of their basic rights, including the right to a fair trial, the United
States has done a disservice to the cause of justice and has tarnished
its own hard-won reputation as a beacon of the defence of civil liberties
and human rights.<br><br>
9. Some Council of Europe member States have knowingly colluded with the
United States to carry out these unlawful operations; some others have
tolerated them or simply turned a blind eye. They have also gone to great
lengths to ensure that such operations remain secret and protected from
effective national or international scrutiny.<br><br>
10. This collusion with the United States of America by some Council of
Europe member States has taken several different forms. Having carried
out legal and factual analysis on a range of cases of alleged secret
detentions and unlawful inter-state transfers, the Assembly has
identified instances in which Council of Europe member States have acted
in one or several of the following ways, wilfully or at least recklessly
in violation of their international human rights obligations:<br><br>
<dir>
<dir>
10.1. secretly detaining a person on European territory for an indefinite
period of time, whilst denying that person’s basic human rights and
failing to ensure procedural legal guarantees such as <i>habeas
corpus</i>;<br><br>
10.2. capturing a person and handing the person over to the United
States, in the knowledge that such a person would be unlawfully
transferred into a US-administered detention facility;<br><br>
10.3. permitting the unlawful transportation of detainees on civilian
aircraft carrying out "renditions" operations, travelling
through European airspace or across European territory;<br><br>
10.4. passing on information or intelligence to the United States where
it was foreseeable that such material would be relied upon directly to
carry out a "rendition" operation or to hold a person in secret
detention;<br><br>
10.5. participating directly in interrogations of persons subjected to
"rendition", or held in secret detention;<br><br>
10.6. accepting or making use of information gathered in the course of
detainee interrogations, before, during or after which the detainee in
question was threatened or subjected to torture or other forms of human
rights abuse;<br><br>
10.7. making available civilian airports or military airfields as
"staging points" or platforms for rendition or other unlawful
detainee transfer operations, whereby an aircraft prepares for and takes
off on its operation from such a point; and<br><br>
10.8. making available civilian airports or military airfields as
"stopover points" for rendition operations, whereby an aircraft
lands briefly at such a point on the outward or homeward flight, for
example to refuel. <br><br>
</dir>
</dir>11. Attempts to expose the true nature and extent of these unlawful
operations have invariably faced obstruction or dismissal, from the
United States and its European partners alike. The authorities of most
Council of Europe member States have denied their participation, in many
cases without actually having carried out any inquiries or serious
investigations.<br><br>
12. In other instances such attempts have been thwarted on the grounds of
national security or state secrecy. The Assembly takes the view that
neither national security nor state secrecy can be invoked in such a
sweeping, systematic fashion as to shield these unlawful operations from
robust parliamentary and judicial scrutiny.<br><br>
13. The Assembly highlights the widespread breach of the positive
obligations of all Council of Europe member States to investigate such
allegations in a full and thorough manner. It has now been demonstrated
incontestably, by numerous well-documented and convergent facts, that
secret detentions and unlawful inter-state transfers involving European
countries have taken place, such as to require in-depth inquiries and
urgent responses by the executive and legislative branches of all the
countries concerned.<br><br>
14. While the Assembly has been seized in this instance with looking into
allegations concerning very specific facts, it cannot ignore other
allegations surrounding the existence of other secret detention centres
in Europe, apparently also set up in the context of the "war on
terrorism". In particular, the Assembly expresses its deep concern
at the continued reports of secret detentions in the North Caucasus. The
European Committee for the Prevention of Torture issued a Public
Statement on this subject in 2003, which was recently supplemented by
new, detailed victim testimony and credible allegations from
non-governmental organisations. Further serious investigation and
analysis of secret detentions in the North Caucasus is clearly
required.<br><br>
15. The Assembly also regrets that detention centres in Kosovo were not
accessible, until very recently, to the European Committee for the
Prevention of Torture. The lack of access seems all the more unacceptable
in light of the fact that the international community intervened in that
region with the declared aim of restoring order, peace and the respect
for human rights.<br><br>
16. The Assembly’s central objective is to prevent violations of the sort
described in this resolution from occurring in the future.<br><br>
17. The Assembly therefore commends the Secretary General of the Council
of Europe for the swift and thorough use of his power of inquiry under
Article 52 ECHR.<br><br>
18. The Assembly calls upon the member States of the Council of Europe
to:<br><br>
<dir>
<dir>
18.1. undertake a critical review of the legal framework that regulates
the intelligence services, with the dual objective of enhancing their
efficiency and strengthening accountability mechanisms against abuse;
clear regulations must also govern co-operation with foreign services and
the activities of foreign services on national territory;<br><br>
18.2. ensure that the laws governing state secrecy protect persons who
disclose illegal activities of state organs (so-called
"whistle-blowers") from disciplinary or criminal
sanctions;<br>
18.3. undertake a review of bilateral agreements signed between Council
of Europe member States and the United States, particularly those on the
status of US forces stationed in Europe and on the use of military and
other infrastructures, to ensure that these agreements conform fully to
applicable international human rights norms; and<br>
18.4. urge the United States to dismantle its system of secret detentions
and unlawful inter-state transfers and to co-operate more closely with
the Council of Europe in establishing common means of overcoming the
threat of terrorism in line with international human rights standards and
respect for the rule of law. <br><br>
</dir>
</dir>19. The Assembly also calls on the United States of America, which
is an Observer State to the Council of Europe and Europe’s long-standing
ally in resisting tyranny and defending human rights and the rule of law,
to:<br><br>
<dir>
<dir>
19.1. send a strong message to the world by demonstrating that terrorism
can be vanquished by lawful means, thereby proving the superiority of the
democratic model founded on respect of human dignity;<br>
19.2. co-operate more closely in identifying and employing the most
effective means with which to prevent and suppress the terrorist threat
in conformity with international human rights norms and the rule of
law;<br>
19.3. align its definitions of torture and other cruel, inhuman or
degrading treatment with the definition used by the UN Committee Against
Torture;<br>
19.4. prohibit the transfer of persons suspected of involvement in
terrorism to countries that practise torture and that fail to guarantee
the right to a fair trial;<br>
19.5. issue official apologies and award compensation to the victims of
illegal detentions against whom no formal accusations, nor any court
proceedings, have ever been brought; and<br>
19.6. refrain from prosecuting any officials, former officials or
journalists who, by providing testimony or other information, have helped
to bring to light the system of unlawful detentions and
mistreatment.<br><br>
</dir>
</dir>20. The Assembly calls upon its Committee on Legal Affairs and
Human Rights urgently to establish an ad hoc Sub-Committee to continue
this inquiry into alleged secret detentions and unlawful inter-state
transfers involving Council of Europe member States, in view of new facts
that are still in the process of being uncovered.<br><br>
21. The Assembly further urges its members to call for rigorous inquiries
in their respective national parliaments, especially in those states from
which no or insufficient information has been forthcoming.<br><br>
22. The Assembly recognises, in the context of the present inquiry into
secret detentions, that it lacks appropriate investigative powers akin to
those provided to parliamentary inquiries in member States, including the
powers to subpoena witnesses and compel disclosure of documents, and
calls for consideration of this issue.<br><br>
23. Finally, the Assembly expresses its appreciation to the relevant
European Union institutions (European Commission, European Parliament and
EU Satellite Centre), as well as to Eurocontrol, for their invaluable
contributions to this inquiry, whilst reiterating the Council of Europe’s
role as the guardian of human rights throughout Europe.<br><br>
</font><font size=3><b>B. Draft recommendation<br><br>
</b></font><font size=2>1. The Parliamentary Assembly refers to its
Resolution ... (2006) on alleged secret detentions and unlawful
inter-state transfers involving Council of Europe member states.<br><br>
2. The Assembly also recalls its Resolution 1433 (2005) and its
recommendation on the legality of the detention of persons by the United
States in Guantanamo Bay.<br><br>
3. The Assembly urges the Committee of Ministers to draft a
recommendation to Council of Europe member States containing:<br><br>
<dir>
<dir>
3.1. common measures to guarantee more effectively the human rights of
persons suspected of terrorist offences who are captured from, detained
in or transported through Council of Europe member States; and<br>
3.2. a set of minimum requirements for "human rights protection
clauses", for inclusion in bilateral and multilateral agreements
with third parties, especially those concerning the use of military
installations on the territory of Council of Europe member
States.<br><br>
</dir>
</dir>4. The Assembly urgently requests that:<br><br>
<dir>
<dir>
4.1. an initiative be launched on an international level, expressly
involving the United States, an Observer to the Council of Europe, to
develop a common, truly global strategy to address the terrorist threat.
The strategy should conform in all its elements with the fundamental
principles of our common heritage in terms of democracy, human rights and
respect for the rule of law.<br>
4.2. a proposal be considered, in instances where States are unable or
unwilling to prosecute persons accused of terrorist acts, to bring these
persons within the jurisdiction of an international court that is
competent to try them. One possibility worth considering would be to vest
such a competence in the International Criminal Court, whilst renewing
invitations to join the Court to the United States and other countries
that have not yet done so.<br><br>
</dir>
</dir>5. The Assembly finally recommends that the Committee of Ministers
should consider means of improving the Council of Europe’s ability to
react rapidly and effectively to allegations of systematic human rights
abuse involving several member States.<br><br>
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