This study begins by stating that nulla poena sine lege, meaning that no person may be punished except in accordance with the law. In every instance, there must be a law governing and prescribing punishment. Further to that non omne quod licet honestum est, meaning that not everything that is permissible or even lawful is honest or honorable. There are limitations in respect of this maxim. Finally, it would also like to state that apices juris non sunt jura or non congruit de apicibus juris disputare, meaning that legal principles must not be carried to their most extreme consequences, regardless of equity and good sense.
This study deems it fit to address the issue of rendition within the three maxims mentioned there above. It is worth while to note that rendition is not only a legal issue but also an ethical issue, so to speak. Therefore this study will take into consideration several ethical theories to enrich the theoretical perspective of this study. The section on findings and discussion will give a critical synthesis between law and morality discussed in this study. This will also be the part where this study will give its own stance regarding ethics of rendition.
Research Questions Q. To what extent can rendition be justified? Q. Is it justifiable in law and in morality? Literature Review This section will explore in depth the notion of rendition and its impact on contemporary society. It will look at how different governments feel about it especially in the United States. Rendition is defined as the act of shifting a person from one nation to another for imprisonment and interrogation through the use of torture, which would not be permissible if they remained in a certain country.
Extraordinary rendition involves the transportation of suspected foreign terrorists or other persons suspected of crimes, to other countries for interrogation and imprisonment. Looking at the above definition one can already dismiss the rationale of rendition off-hand. Just before even getting to the aspect of torture in it, why would a government take advantage of another country’s laws? Why is it hard for such a government to enact laws friendly to rendition in their own country? There are so many other queries that need to be addressed here.
It is believed that the aim of extraordinary rendition is to make suspects provide intelligence information by torturing them. These suspects are either sent to facilities sponsored by the US government or can be left in the hands of foreign governments. As mentioned earlier, suspects are transported to countries whose laws do not prohibit torture and abusive treatment. In this regard, extraordinary rendition allows acts of torture towards detained suspects notwithstanding the fact that torture is an offence, at least, under international law no matter the cost.
This practice is believed to have begun back in 1990s but gained its momentum following the September 9/11 attacks on US. It is also believed that this policy re-appeared during the reign of Bill Clinton although it grew in strength during the reign of George Bush. It is estimated that 150 foreign nationals have been victims of torture as a result of rendition in the last few years alone. In most cases this foreign nationals have purportedly been suspected for terrorist acts.
After their transportation, detention and interrogation takes place in countries like Jordan, Egypt, Diego Garcia, Iraq, Afghanistan, Egypt and Guantanamo. Robert Baer, the former CIA agent, is on record for having said that if one wants a serious interrogation then the culprit should be sent to Jordan. If the aim is to torture them then the best place would be Syria and if the aim is to make a victim disappear and never to be seen again, then the best place would be Egypt. There are allegations that US intelligence agencies have sent terror suspects for interrogation by security officials in different countries.
By so doing, they put them in a situation where they cannot be protected by the American Law. Some persons confess that they were flown to countries like Syria and Egypt by CIA agencies where they were tortured. The US government and its intelligence agencies believe that their operations are legally justified. Even though US officials agree that terror suspects have been transported to other countries for interrogation, they vehemently deny that acts of torture take place when they get there.
The former US Secretary of State Condoleezza Rice is on record for having said that all American interrogators act within the UN Convention on Torture. She went further to state that they adhere to this Convention while exercising their duties in US or in another country. There are several documents that detail human rights legislation, for instance: (a)Third and Fourth Geneva Conventions (b) Universal Declaration of Human Rights (UNDHR) (c) United Nations Convention Against Torture (UNCAT) and (d) US Constitution. Surprising enough is that US government is a signatory of each of these treatises.
This study believes that by the fact that United States identifies with the principles in each of these documents it should be the first nation to safeguard victims against acts of torture. Nonetheless, the impression is that US promotes extraordinary rendition in the name of war on terror. Then why would one not accuse US government of hypocrisy or cynical relativism in terms of its commitment to human rights and civil rights laws? Moreover, the fact that US are a signatory to the abovementioned documents it needs to terminate programs that violate human dignity.
The Third and Fourth Geneva Conventions The Geneva Convention set the standards for international law as far as humanitarian issues are concerned. Its central concern was the treatment of civilians as well as prisoners of war. Its principles safeguard against human rights violations and establish universally acceptable standards and approaches relating to detained victims in times of war. The Convention forbids any form of physical or mental torture or any other kind of coercion towards suspects in a bid to gather information from them.
It further states that even if the prisoners fail to open up during the interrogation process they should not be intimidated or abused or maltreated for that matter. The Universal Declaration of Human Rights The fifth article in the Universal Declaration of Human Rights states that “no person shall be put to torturous acts or inhuman treatment or punishment”. Apart from providing an injunction against torture it further restricts the utilization of “degrading treatment or punishment”.
In the sixth article, it states that every person has a right to recognition before the law no matter where the person is or could be. The eighth article invalidates the CIA’s practice of “extraordinary rendition”. This article states as follows: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. This study believes that whenever prisoners are transported to other countries chances that this protocol will be observed are quite minimal.
The ninth article prohibits the arrest of persons with no proper justification, including detention or exile. This provision prevents United States from carrying out extraordinary rendition activities. The tenth article essentially invokes what in Latin can be termed as habeas corpus which literally means that one may have the body. It is a writ ordering a person to be brought before a court or judge so that the court may ascertain whether his detention is lawful or not. United Nations Convention against Torture
This convention has an international scope on human rights protection. This Convention is greatly endorsed by the United Nations and its observance is extremely mandatory for all the member states who are signatory to it. As mentioned earlier, United States is a signatory of this document so it has no option but to adhere to its provisions. This Convention states that all signatories should create appropriate measures to safeguard against torturous acts within their territories and prohibits countries from transferring persons to other countries so that they might torture them.
Article two states that every state ought to exercise appropriate legislative measures, administration and judicial measures to fight any elements of torture under its jurisdiction. It further states that under no circumstances can torture be justified. The circumstances could be a state of war or a threat of war or public emergency. It also does not matter whether such orders come from the top officers, torture remains unjustified. In article three it states that no person may be transported to another state to be interrogated or tortured simply because that country’s laws allow it.
The Constitution of the United States It is quite impressive to discover that the practice of extraordinary rendition is not only prohibited as seen in the three Conventions discussed above, but the US constitution is against it as well. The Fourth, Fifth, Sixth and Eighth Amendments are a clear indication that US holds a no-policy towards extraordinary rendition. These amendments prohibit arbitrary search and seizure of individual and/or property; it also invokes the right to due process of law, as in, the concept of habeas corpus mentioned above.
In this light, US government contradicts the spirit of its constitution whenever they indulge in extraordinary rendition. Deontology versus Utilitarianism Deontological moral theory is also a Non-Consequentialist moral theory. While consequentialists believe that the end always justify the means, deontologists assert that the rightness of an action is not simply qualified by maximizing the good alone, it must be that the action fulfils what is considered moral. It is the inherent nature of the act alone that determines its ethical standing.
Or better still, utilinitarianism believe that one should always exploit the good in his/her actions while deontologism believes that it is not the pursuit of the good but it is the moral worthiness in the act. Virtue Ethics is not much concerned with rules, consequences and specific acts but it puts more emphasis on the subject of the actions. In other words, it is interested with the person who is responsible for acting. It holds that acting in accordance with given rules; or analyzing the good outcome of the actions is not what should only count.
The most primary thing is whether the subject of the actions, in this case the individual, exhibits elements of good character or moral virtues or not. Unlike utilitarianism which is concerned with the maximization of the good in performing a given act, virtue ethics instead, focuses on the moral quality exhibited by the agent of the actions. Therefore, the dictum that the end justifies the means has no place in virtue ethics. On the other hand, deontologism is somehow a normative approach to ethics which typically evaluates the actions of an individual in relation to moral standards in the objective order.
Both utilitarianism and deontology focus on the actions of the agent contrary to virtue ethics which is a complete turn to the subject that is acting. Findings and Discussion Throughout this study it can be seen that there is no where that extraordinary rendition has been justified. The reader taking part in this study can clearly ascertain that rendition has no place either in law or in morality. Furthermore, it cannot be justified no matter the circumstance. This study however believes that persons who destabilize peace and stability should be dealt with accordingly.
In any way, they should be eliminated in the society. Looking at the intention of extraordinary rendition, it stands justified in that it serves as a deterrent kind of punishment. Literally, it makes the culprits pay for the wrongs they have committed. In the contemporary society crime cannot be something that anybody will brush under the carpet, it is important that preventive measures be put in place. The Conventions discussed in this study clearly indicate that extraordinary rendition is an offence in law.
Now, the problem is that this study does not understand to what extent each of these Conventions applies. It was stated very clearly that signatories to these Conventions are bound by them; so do these same Conventions apply to countries like Syria, Jordan or Egypt which are clearly the preferred destinations for acts of interrogation and torture. This study cannot fail to mention that most countries, or instance, Syria or Egypt are sovereign and with authentic constitutions. Could it be that their constitutions allow extraordinary renditions?
Or is it that their laws do not care about such practices? This means that a country need not legalize torture but the fact that its laws say nothing about acts of rendition it becomes a reason to practice them. From a utilitarian ethical viewpoint, the end qualifies the means so long as the acts brings desirable end. This means that utilitarianism supports extraordinary rendition insofar as it will eliminate same crime occurring in the future. On the contrary, deontological ethical viewpoint believes that what should be investigated is the act itself not the consequences.
As such, torture is immoral whether a nation recognizes it in law or not. This study confidently declares torture an immoral thing and something that should not be used as a form of punishment. Finally, this study would like to reiterate that the contemporary world needs to enact stiff measures to ensure that all criminals have been completely wiped out. No person should disturb another person’s peace. It also believes that due process of law is the best way to deal with criminals. Imprisonment in itself is maximum punishment since it denies such criminals opportunities for further commitment of crime.
Conclusion This study has explored the meaning of extraordinary rendition and its implications. So far, there is no where in this study has it been justified. Much of its practice has been adopted by the United States government in its war on terror. From the Conventions it is clear that the practice of torturous acts remains entirely prohibited no matter the cost. It has also been indicated that the major proponents of extraordinary rendition, the United States for this matter, prohibit such practice in their constitution.
This study has also highlighted two ethical standpoints namely deontologism and utilitarianism. Inasmuch as utilitarianism justifies the means due to the perceived good it does not offer any justification for extraordinary rendition. So, human dignity should be upheld at all times. This study invites persons with malicious intentions to reconsider their attitudes and evade practices that would make them be treated inhumanly. Bibliography Alfred W. McCoy, (2006). A Question of Torture: CIA Interrogation from the Cold War to the War on Terror (New York, Metropolitan Books) p. 60.
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