Dáil Éireann díospóireacht -
Tuesday, 13 Jun 2006

Vol. 621 No. 4

Human Rights Issues: Motion.

Mr. M. Higgins

I move:

That Dáil Éireann,

noting that:

—the State is not simply obliged by national and international law not to engage in torture, but also has positive obligations to ensure that torture is not facilitated and that individuals are not placed at risk of torture, inhuman or degrading treatment;

—the national and international legal consensus that a state cannot rely on diplomatic assurances alone to discharge those positive obligations, and, in particular, the statement of the secretary general of the Council of Europe that ‘mere assurances by foreign states that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanism need to be set out in agreements and national law in order to protect ECHR rights';

—the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe has adopted a report from Senator Dick Marty to the effect that the United States has progressively woven a clandestine ‘spider's web' of disappearances, secret detentions and unlawful inter-state transfers, spun with the collaboration or tolerance of Council of Europe member states;

—the Marty report concludes that certain Member States, including Ireland, could be held responsible for active or passive collusion (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise), involving secret detention and unlawful inter-state transfers of persons whose identity so far remains unknown, and that Ireland in particular could be so responsible for permitting Shannon to be used as a stopover for flights involving the unlawful transfer of detainees;

—the secretary general of the Council of Europe has commended the Marty Report and stated: ‘Senator Marty has made some serious allegations about the involvement of several European countries. I note that some governments have immediately denied these allegations but I think that they should make clear whether they have investigated these allegations before rejecting them';

—the Irish Human Rights Commission has stated that: ‘the report of Senator Marty is persuasive if not conclusive, and gives credence to the concerns already raised by the Irish Human Rights Commission. It strengthens the case for a fundamental rethink, especially on the reliability of diplomatic assurances. Reliance on diplomatic assurances is at the very heart of the Irish case and in this context the Human Rights Commission is strongly of the view that the only form of diplomatic assurances that could meet our constitutional and international human rights obligations would be ones which were fully legally enforceable and were accompanied by an effective regime of monitoring and inspection of aircraft suspected of involvement in the rendition of prisoners.';

—committed to full engagement and co-operation with other states to counter international terrorism and in that regard recalling the EU Presidency statement of the 11th May, 2006 that: ‘We share the view that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing. Our fight against terrorism must be placed within a rule-of-law framework and conducted in full conformity with international law, in particular human rights law, refugee law and international humanitarian law';

—satisfied that there are real and substantial grounds for concern as to the lawfulness, in terms of both Irish and international law, of actions carried by or on behalf of the United States that are under inquiry and that a principle of trust in formal diplomatic assurances does not justify a refusal to have any regard to those allegations:

calls on the Government to:—

—accept its legal and constitutional responsibility to ensure that the territory and facilities of this State are not used for illicit purposes and especially not for human rights violations by any other state;

—support the recommendations outlined in the draft resolution of the Legal Affairs Committee before the Parliamentary Assembly of the Council of Europe;

—establish a credible independent investigation into the existence of any secret and extralegal arrangements, agreements or understandings, whether formal or informal, between the Irish authorities and the authorities of any other State, including at senior political level, as regards over flights, stopovers and extraordinary rendition;

—use the full powers available under the Air Transport and Navigation Act, and to make such amendments as are appropriate in such Acts for the vindication and guarantee of human rights, and to use such powers and powers under the Chicago Convention to introduce an appropriate regime of inspection of civilian aircraft, rather than relying solely on Garda powers relating to crime investigations, and

—outline what further proposals it has in order to honour its commitments in this regard under constitutional, domestic and international law.

The suicides of three inmates of Guantanamo Bay reported this week; the continuing use of extraordinary rendition by the Central Intelligence Agency, CIA, on behalf of the US Government with the co-operation and collusion of many European governments, which have ratified the European Convention on Human Rights but which are violating their own charter as to human rights; and the peremptory killing of a family on a beach in Gaza means that the international community has sunk to an appalling level where one must question the viability of international law. Any government that believes in the fundamental principles of the Universal Declaration of Human Rights or the European Convention on Human Rights must not just unequivocally condemn what is happening in Guantanamo Bay but must campaign for its immediate closure.

No campaign against international terrorism is served by operating outside of international law in its most fundamental aspects. The US Supreme Court has spoken in the past about the importance of not using tyrannical methods in dealing with what was suggested as the threat of tyranny. In its judgment in Rasul v. Bush, the US Supreme Court observed that:

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unrestrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber...for if this nation is to remain true to its ideals symbolised by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Extraordinary rendition, which is the subject of our motion, lies outside international law. It is a parallel system that does not simply involve the agency of one country but has ensnared other European countries which now participate in illegality. It has been described as a spider's web in the report produced by Senator Dick Marty on behalf of the legal affairs and human rights committee of the Council of Europe. This is why it is important that we do not merely condemn it. I am not suggesting that the Irish Government has done anything else other than condemn torture and extraordinary rendition and at times state that it is in favour of full acceptance of the norms of international law. However, the issue is whether the Government in the name of the Irish people can fulfil its duty of compliance with what is a fundamental principle of international law, namely, the condemnation of torture, without putting in place such practices as will lead to the full disclosure of process. It does not matter if the airplane coming home is empty if a government has lent itself to the process. That government is still not compliant with its obligations under one of the fundamental principles of jus cogens in international law, namely, the duty owed to all members of the family of nations that have condemned torture, be it through the United Nations Convention or the European Convention on Human Rights. This is why no campaign against international terrorism is served by practices outside international law and no compliance with international law is satisfactory unless it has clear observable principles of practice as well as rhetoric.

The whole nexus of extraordinary rendition, often with an endpoint of detention in Guantanamo Bay or of such interrogation in third countries as creates the real fear of inhuman and degrading punishment or torture itself, is an appalling indictment of international practice at the present time by some of the most powerful nations. It tacitly suggests that the rules of international law belong to smaller countries and that the hegemony can operate with impunity outside international law, even if it has ratified that law. The protection of the person by law is receding daily. There is even an attempt by the most powerful states to redefine the meaning of torture despite a universal abhorrence and rejection of the practice at the time of the passing of the United Nations Convention. It is interesting that the leader of the US delegation to the United Nations Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment sought to narrow its application, suggesting that Article 3 applied within the US but not outside it. Ordinary language tells us and ordinary people understand that people have been placed in illegal detention outside the reach and protection of international law in places like Guantanamo Bay. The three suicides that have taken place in Guantanamo Bay have occurred in the context of 41 attempted suicides involving 20 people in recent years. There must be no doubt in anyone's mind and under any fair interpretation of international law that enforced disappearance, which involves the hooding, kidnapping, and detention of persons outside of any legal protection and in indeterminate circumstances, is an oppression of such a scale that it can be regarded as torture.

The international community is tested by its willingness to achieve the closure of Guantanamo Bay and related facilities immediately. It is these events that make it imperative for smaller nations to vindicate the fundamental principles of international law. Such vindication requires not just a rhetorical assent to the principles but practices and compliance that are transparent and sufficient given the fundamental issues that are involved. Extraordinary rendition is a clear breach of the norms of public international law. Such norms require a positive compliance. The United Nations Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment creates a set of positive obligations. In the case of landings at Shannon Airport by airplanes on leases to the CIA, there is an obvious requirement to ensure that human rights law is not being broken. The Irish Government is not in a position to give us any assurance on this. It has neither put such conditions to its permission to use the facilities at Shannon Airport nor has it executed such inspections as would monitor basic compliance with international law.

The purpose of our motion is to ensure Ireland is seen by the international community and, more importantly, by its own citizens to have fulfilled its positive obligations in respect of such fundamental principles of international law as are contained in the International Covenant on Civil and Political Rights of 1966, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

The context in which I move this motion on behalf of the Labour Party is one in which there is a serious erosion of commitment to international law. Extraordinary rendition is part of the new extra-legal environment that has been created in the name of combating international terror. Taken together with the establishment of places of detention such as Guantanamo Bay, the acceptance of the principle of pre-emptive strikes and assassination, and the absence of care for the rights of civilians as exemplified by the killing last week of a family on a beach in Gaza, the snatching of persons and their transmission without legal protection to places of detention outside the law represents the lowest point to which respect for international legal principles has sunk in recent decades. Ireland at this juncture must clearly establish its position in respect of such developments. It must clarify its own position immediately and without equivocation. Irish people are appalled at finding themselves in the position of needing to defend themselves from the suggestion they are part of an extra-legal process instead of leading in defending international law.

On such issues of torture, enforced disappearances and illegal detentions, which are of the first order of importance in international law, we are not only required to be unequivocal in our condemnation of such practices — I want to be scrupulously fair and say the Government has condemned such practices — but we must be equally unequivocal in respect of the procedures we put in place to clearly show we are not part of any process of facilitating such extra-legal activity. However, we have not been able to do this. We have not sent gardaí on to a single plane in Shannon, planes that have the same registration numbers as those that snatched people extra-legally and moved them to places of torture. We have not explained what these planes were doing if they were not involved in the process of extraordinary rendition.

The Irish Human Rights Commission statement of 6 January 2006 gives details of correspondence between it and the then Commissioner for Human Rights, Mr. Alvaro Gil-Robles. In December 2005, it asked the Government to carry out inspections at Shannon Airport so that it could say it was in full transparent compliance with the UN Convention Against Torture. Mr. Gil-Robles wrote to the commission and stated:

States have a responsibility to ensure that their territory and facilities are not used for illicit purposes, especially not human rights violations and, even more particularly, for violations of Article 3 of the ECHR. In so far as so-called extraordinary rendition flights are concerned, States must be in a position, where there is doubt, to establish who is on board planes transiting via their airports, whether they are travelling freely or are detained, and, if the latter, under whose authority they are being transported and for what purpose. The IHRC's proposal that the Irish Government seek the agreement of the US authorities to inspect aircraft would certainly facilitate this.

That did not happen. It is not the only opinion on putting inspections in place the Government has ignored. Recently a request was made for an investigation of past practices, inspections and such conditions in the future as would make specific reference to the protection of human rights. So far, the Government has done nothing in this regard. It has not carried out inspections of aircraft on lease to the Central Intelligence Agency of the United States that have landed at Shannon Airport. Some of these aircraft have been identified through their registration numbers as the aircraft involved in extraordinary renditions.

In its report on 5 April 2006, Amnesty International identified a number of United States companies used to charter or operate aircraft involved in renditions. It examined the detailed flights of four aircraft. In the House, the Minister for Transport, Deputy Cullen, acknowledged that N313, a Boeing jet registered to Stevens Express Leasing Incorporated, had landed 14 times at Shannon Airport. In January 2004, this aircraft was used to take Khaled al-Masri to Afghanistan after being kidnapped in Macedonia.

The Minister acknowledged that N379P, a Gulf Stream executive jet, landed at Shannon Airport 15 times under two registration numbers. This aircraft was known as the Guantanamo Bay Express because of the frequency of its visits to Guantanamo Bay. This plane was used to transport Achmed Agiza from Sweden to Egypt. In its response to different bodies, the Government should refer to the Agiza case. Sweden had assurances from Egypt that nothing would take place that was in breach of any convention. The United Nations Committee against Torture held against Sweden that such diplomatic assurances should not have been accepted.

N829MG is the registration number of the plane that took Maher Amar, who had joint Canadian-Syrian citizenship, from New York to Jordan in 2002. He was later tortured in Syria. This plane landed twice in Shannon. N85VM, a Gulf Stream IV, transported Abu Omar to Egypt after his kidnap in Italy.

The Marty report shows flight plans through Shannon to Rabat, Cairo and Amman. What were these planes doing in Shannon if they were not involved in extraordinary renditions? There is no principle in international law that would support the suggestion that one must find a body on the plane for it to be in breach of the United Nations convention or Article 3 of the ECHR.

Mr. Stagg

Hear, hear.

Mr. M. Higgins

If one involves oneself in part of the process, one is in the process. Under the principle of non- refoulement, if one extradites a person, one follows the process through to where that person goes. It is the same principle in respect of a deportation. One cannot say that because one chooses not to know, one is not complicit in some way. This is the difficulty in which the Government has placed Ireland, which is referred to in the Marty report.

In the last paragraph of the Government's amendment, it speaks of enhanced verification arrangements that it proposes to make after today's press conference on the discovery by a cleaner of a man in handcuffs on a civilian aircraft with mostly military personnel on board. Such a person was entitled to international protection in terms of the way in which he was held, his access to legal opinion and so on. It is not simply a case of imagining this is America's business. The United States did not approach the Department of Foreign Affairs and say it needed to confess something but did not have the time to do so until now. Only when someone cleaning the plane saw the person on board and told somebody else was the process discovered.

The Government, in its reply to the Secretary General of the Council of Europe, correctly suggested that people had protections under the law. For example, it drew attention to the civil aviation Acts of 1988 and 1998, but it did not tell the Secretary General that it did not implement that legislation in respect of the planes landing at Shannon Airport. It was entitled, under section 49 of the civil aviation and transport Act of 1998 to board a plane, but it never did so. Regarding the five complaints made and the two complaints sent to the Director of Public Prosecutions, the Government relied on secondary evidence for its files. Thus, it said that it asked the cleaner and the mechanic about the matter.

It is interesting that when Senator Norris and I met two senior gardaí and asked why planes were not being inspected, they suggested they did not have the power to enter or search planes or make arrests under the Criminal Justice Act, which transposed the United Nations convention into Irish law. While that may have been the case in respect of the Act in question, it was never the complete truth because the Garda had the power under the 1988 and 1998 Acts.

Mr. D. Ahern

That is not correct.

Mr. M. Higgins

The present Minister stated that point and agrees with me on it. Why were the power and capacity provided by the Act not implemented? The onus has been placed on civilians watching planes to produce evidence to give to the Garda so that actions can be taken, but the onus should be on the State to use its power, capacity and legal authority. The State, which had the responsibility and capacity, did not act. Instead, it sought to shift the onus of producing evidence on to civic-minded citizens.

In the Government's reply to the Article 52 questionnaire of Mr. Terry Davis, it stated that legislation provided protection, but it did not act under this legislation to board planes despite the public concern in Ireland, Europe and internationally and the fact that planes had been shown to have matching numbers with those involved in extra-legal activities in different parts of Europe.

The Government has chosen to rely on what it refers to in its amendment as categorical or general assurances. We know neither the definition of those words nor the difference between them because we have never seen them used in writing. We are told that the assurances are of such an order as to confer importance on us, because only three countries in Europe were given such powerful assurances as we. Is that not interesting? The Irish Government has never sought information why the very aeroplanes on lease for use by the CIA and working in clear breach of international law were landing in Shannon. It never sought information on what these aeroplanes, which were clearly involved in extra-legal networks of flights, some of which had become the subject of proceedings, were doing in Shannon.

We must come to the nub of the matter. The Government will state that diplomatic assurances of the quality it has received are sufficient and that it would be an unfriendly act to require more, but how can it be regarded as unfriendly for a country which has friendly relations with another to state it wishes to honour the European Convention on Human Rights, the United Nations committee against torture, the Secretary General of the Council of Europe and the Venice Commission on the legal obligations of the signatories of the ECHR, and to say it wants to be able to show it has implemented the requirements of those bodies?

The Irish Government has decided to place the assurance it received above its clear obligations to the practice and vindication of human rights. Those who have said that diplomatic assurances are inappropriate in this case include all those who have been involved in the debate about torture. I am not naive enough to suggest there are not circumstances in which diplomatic assurances are appropriate, because there are such circumstances, but this is not one of them. The United Nations Convention against Torture and Article 3 of the European Convention on Human Rights are in a special category which allows no derogation. Those who have stated that diplomatic assurances are insufficient include the European Court of Human Rights. As long ago as 1996, the Chahal v UK case made such a finding. The United Nations committee against torture, the Secretary General of the Council of Europe, the Venice Commission, the report of the temporary committee of the European Parliament and, in December 2005, the Irish Human Rights Commission have all stated as much. Why ignore all these bodies?

When the UN committee against torture issued its finding against Sweden, it emphasised the absence of adequate measures to ensure the enforcement of any assurances. It is interesting to know what happened in that case. The individual was approached and stripped of all his clothing, including his underwear. Incontinence pads were fitted and he was dressed in a yellow suit. One of the people present said they could do three such cases in an hour. The individual was then hooded and moved to an aeroplane, in breach of every single principle of international law, namely, the manner of apprehension, the manner of transporting, the issue of habeas corpus, the right to legal protection, delivering a person inhuman treatment and the delivery of a person through enforced disappearance into an ill-defined and indeterminate place of detention. All are appalling breaches but that is what happens when one puts oneself into the spider’s web of rendition.

I repeat that I accept such activities have been condemned by the Irish Government but it has been appallingly deficient in not insisting on inspection and compliance with the codes and protections of international law when it gives permissions. The Government amendment, which I do not accept, states that Mr. Terry Davis, the Secretary General of the Council of Europe, said Ireland was one of only nine countries that did not need a second questionnaire, so completely did it reply. It omits to point out that the Secretary General also said:

Respect for the Convention imposes positive obligations to ensure respect for the guaranteed rights and freedoms, including preventative measures. In other words, the Convention may also be invoked through an omission to act.

Then comes the powerful sentence: "Not knowing is not good enough." "Not knowing" is what Ireland took refuge in.

Diplomatic assurances were never sufficient, nor will they meet our positive obligations in international law. The UN committee against torture, the European Court of Human Rights and the Venice Commission have all stated that diplomatic assurances are insufficient in the matter of complicity, be it silent or active, in extraordinary rendition. The acceptance of this fact by the Irish Government is one of the requirements of our motion. It is unacceptable that insistence on inspection or monitoring of such conditions as we might impose for the protection of human rights could in any sense be regarded as an unfriendly act. I reject that. We are required to ensure that extraordinary rendition does not occur on our territory or over our airspace. We are required to investigate any claims that such activities have taken place. The burden of evidence in such claims, I emphasise, does not lie with civilians but with the State.

On foot of diplomatic assurances, the State has not sought to board planes or to establish the fact of compliance or otherwise with the permission which it has given for the landing and service of civilian planes which may be used by the CIA for extra-legal purposes. The Irish Government has put itself in the position of not being able to say it can show that it was not silently collusive in the sense of the Marty report. It is important for this motion to be passed so that an investigation can be initiated into the purpose of such landings as have taken place by aircraft whose registration numbers have been associated with extra-legal landings and torture in Europe and elsewhere in recent years. It is necessary to ensure that adequate conditions in terms of human rights and public international law are imposed on such permissions as may be granted in the future, and that adequate monitoring mechanisms are put in place. We need to take such measures seriously to restore our credibility in the international community, a credibility that has been damaged.

The Labour Party calls on the Government to accept its legal and constitutional responsibility to ensure that the territory and facilities of this State are not used for illicit purposes and especially not for human rights' violations by any other state or an agency of any other state. It calls on the Government to support the recommendations outlined in the draft resolution of the legal affairs committee before the parliamentary assembly of the Council of Europe to establish a credible independent investigation into the existence of any secret and extra-legal arrangements, agreements or understandings, whether formal or informal, between the Irish authorities and those of any other state, including at senior political level, as regards overflights, stopovers and extraordinary rendition.

The Labour Party also urges the Government to use the full powers available under the air transport and navigation Acts and to make such amendments as are appropriate in such Acts for the vindication and guarantee of human rights. It calls on it to use such powers, and powers under the Chicago Convention, to introduce an appropriate regime of inspection of civilian aircraft rather than relying on Garda powers appropriate to crime investigations, and to make it a condition of all permissions for all aircraft that international law and human rights conventions be respected. We call on the Government to outline what further proposals it has to honour its commitments in this regard under constitutional, domestic and international law.

It is of moral importance that, on issues such as this, we are seen to place the principles of law above the principles of expediency. It is important also to be seen to put active principles of compliance above the easy road of rhetoric. It is also important to apply the definition of friendship between countries with which we have a friendly relationship to a purpose in which we encourage them to move within the ambit of international law, which should cover all countries on the planet, rather than seeking through our silence to allow them to continue to develop an alternative system to that established by convention, international law, humanitarian law and by the general principles which have evolved ever so slowly to offer protections to people in any country, in any circumstance. I recommend this motion to the House and ask that it be supported.

Mr. Gilmore

I currently have the honour of representing the Labour Party and, indeed, this House, on the parliamentary assembly of the Council of Europe. Last week, that assembly published the report of Senator Dick Marty, the Council's official rapporteur, on the issue of renditions and secret detention centres.

In recent days, I was disappointed to hear the Minister for Foreign Affairs effectively rubbishing the Marty report. The Minister represented the report as if it were some kind of individual contrarian's opinion, rather than as a report which had been compiled by an official rapporteur of the Council of Europe. I was also disappointed that in presenting his case, the Minister insinuated that Senator Marty's report was at variance with that of the Secretary General of the Council of Europe.

For those reasons, I wish to put on record the fact that the Marty report is the result of a process that began approximately six months ago. In November 2005, following allegations from Human Rights Watch, which were published in the Washington Post, concerning the existence of secret CIA detention centres in Romania and Poland, Senator Marty, a Swiss parliamentarian and former prosecutor, was appointed by the Council of Europe’s legal affairs committee to conduct an inquiry into alleged secret detentions in Council of Europe member states. As part of that process, the Secretary General of the Council of Europe triggered a rarely invoked legal power under Article 52 of the European Convention on Human Rights, requesting the 45 European governments of member states of the Council of Europe to explain, by 21 February 2006, how their laws prevent unacknowledged deprivation of liberty and the aiding of foreign agencies in the carrying out of such acts.

In December 2005, the Venice Commission, which is the Council of Europe's group of legal experts, was asked for an opinion on the legality of secret detention. By the end of January 2006, in an interim assessment, Senator Marty said it was highly likely that European governments were aware of rendition affecting Europe. He announced that he had information he had requested from EU satellite and air traffic agencies.

In March 2006, the Venice Commission said the Council of Europe member states must refuse to allow the transit of prisoners where there was a risk of torture and that, if this was suspected, they should search civil planes or refuse overflights to state planes.

On 12 April 2006, following a second round of government replies, the Council of Europe's Secretary General, Terry Davis, said he had received official acknowledgement of the handing over of individuals to foreign officials in ways which ignored the Convention on Human Rights' standards concerning human rights. Last week, on 7 June, Senator Dick Marty published his report which, he said, exposed a global spider's web of illegal US detentions and alleged collusion in this system by 14 Council of Europe member states, including Ireland.

The term "extraordinary rendition" is very clinical and applies to a practice which involves the kidnapping of individuals, sometimes directly off the streets of European cities, and illegally transporting those prisoners for torture in third countries, thus avoiding liability on the part of the countries that are actually carrying it out. In the course of his report, Senator Marty refers to a number of individual cases, which explains the gruesome nature of what rendition is all about. He refers, for example, to the case of Binyam Mohamed Al Habashi, an Ethiopian citizen who had held resident status in the UK since 1994, and who is now detained at Guantanamo. We do not know if this man has been involved in terrorist activities or not because he has never been brought to trial, although I understand he is to appear before a US military commission later this year. Senator Marty relies on diaries that were kept my Mr. Al Habashi and letters he wrote to relatives. Paragraphs 205 and 206 of the Marty report stated:

Binyam has described his ill treatment in Morocco to his lawyer in several phases: an initial softening up; a routine circle of torture; and eventually heavy abuse involving mental torment and the infliction of physical injury. In the first few weeks of his detention he was repeatedly suspended from the walls or ceilings, or otherwise shackled and brutally beaten: [I am quoting Binyam] "They came in and cuffed my hands behind my back. Then three men came in with black ski masks that only showed their eyes...one stood on each of my shoulders and the third punched me in the stomach. The first punch...turned everything inside me upside down. I felt I was going to vomit. I was meant to stand, but I was in so much pain I'd fall to my knees. They'd pull me back up and hit me again. They'd kick me in the thighs as I got up. They just beat me up that night... I collapsed and they left. I stayed on the ground for a long time before I lapsed into unconsciousness. My legs were dead. I could not move. I'd vomited and pissed on myself."

At its worst, the torture involved stripping Binyam naked and using a doctor's scalpel to make incisions all over his chest and other parts of his body. [He said] "One of them took my penis in his hand and began to make cuts. He did it once and they stood for a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists."

The interesting thing about this man's testimony is that he says he underwent his first rendition on 21 July 2002. The official records obtained by the Marty inquiry show that the known rendition plane N379P took off from Islamabad on 21 July 2002 and flew to Rabat in Morocco. Rabat is linked to Shannon in the so-called spider's web. The plane N379P, a Gulfstream V executive jet, owned by Premier Executive Transport Services, was later registered as N8068V and then N44982. This plane was nicknamed the "Guantanamo Bay express" because of the frequency of its trips there. It was used to take Ahmed Agiza from Sweden to Egypt and Amnesty International has recorded that it landed at Shannon 22 times. The Minister for Transport, Deputy Cullen, has acknowledged that it landed 12 times at Shannon under the registration number N379P and three times as N8068V.

The Marty report does not state that Mr. Al Habashi was actually on board that plane when it landed in Shannon. However, no Ministers can tell us that Mr. Al Habashi was not on board because they took no precaution to check the planes, their passenger lists or to investigate who was or was not travelling through Shannon. I accept entirely the statement of the Minister, Deputy Dermot Ahern, that the Government does not support rendition. Of course it does not. I also accept that the Government has raised the matter with the United States authorities and I accept its genuineness in doing so. However, the Minister should not justify the inaction of the Irish State authorities in inspecting the planes.

The agencies that have an interest in this matter include the European Court of Human Rights, the United Nations Committee Against Torture, the Venice Commission, the UN High Commissioner for Human Rights, the Council of Europe's Commissioner for Human Rights, the Secretary General of the Council of Europe, and this country's Human Rights Commission, which was established by the Oireachtas to protect and vindicate human rights. They have all said that it is insufficient to accept the diplomatic assurances of another state that nothing illegal was happening on planes being used and chartered by the CIA, which are going through Irish airports. There is a positive obligation on the State to investigate, inspect, send gardaí on board, and establish independently that the law of this country, international law and the Convention on Human Rights are being upheld, and that nobody is being transported through an Irish airport or through Irish airspace to undergo the kind of treatment that was described in the Marty report and which was inflicted on that unfortunate man to whom I referred.

Minister for Foreign Affairs (Mr. D. Ahern)

I wish to share time with Deputies Carey and Andrews.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. D. Ahern

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

"noting that:

—the Government have on numerous occasions voiced their complete opposition to the practice of so-called "extraordinary rendition" (hereinafter referred to as "extraordinary rendition");

—the Government have responded urgently from the outset to allegations of extraordinary rendition, including by consistently raising the matter with the US authorities from the very earliest stage, and through the Minister for Foreign Affairs urging that the EU pursue the issue actively with the US;

—the Government have repeatedly raised their concerns about the matter of extraordinary rendition with the United States Government and have in this context received categorical assurances, confirmed by the Secretary of State of the United States;

—the United States authorities have not offered such blanket assurances to all partners;

—An Garda Síochána has the legal powers required to investigate allegations of illegal activity;

—in none of the allegations regarding extraordinary rendition investigated by An Garda Síochána has credible evidence been evinced that illegal activity had occurred;

—the Government's position in respect of the regulation of military and civilian aircraft has been fully in line with those of our European partners; and

—the Government have co-operated fully with both the Council of Europe and the European Parliament in their investigations, such that Ireland's explanation of its law and practice in this area to the Council of Europe was one of only nine, out of 45 received, that the Secretary General of the Council of Europe judged to be sufficiently comprehensive not to require further clarification;

—shares the Government's complete opposition to the practice of extraordinary rendition and to the use of torture in any circumstances, and its call for the earliest possible closure of the detention facility at Guantanamo Bay;

—welcomes the Government's policy of not permitting the use of Irish territory to transport prisoners for extraordinary rendition purposes;

—notes that none of the draft Council of Europe or European Parliament reports prepared to date has claimed or produced any evidence to the effect that any person has been subject to extraordinary rendition through Irish territory;

—notes that claims that aircraft previously used for illegal purposes may have subsequently passed empty through Ireland are based on the retrospective interpretation of patterns of flight data, which could not at the time be used for the purposes of control or verification;

—rejects the baseless suggestion that the Government may in some way have "colluded", actively or passively, in extraordinary rendition operations;

—commends the Government for promptly obtaining from the United States, in the context of the issue of extraordinary rendition, categorical assurances that prisoners have not been transferred through Irish territory, nor would they be, without our permission;

—recognises that reliance on such assurances of a factual character is a basic principle of international relations;

—commends the Government for fulfilling their legal and constitutional responsibility, and their obligations under international law, to take all appropriate steps to ensure that the territory and facilities of this State are not used for illicit purposes and especially not for human rights violations by any other state;

—endorses the Government's call for anyone with any specific evidence that any person has been subject to extraordinary rendition through Irish territory to bring such evidence to the attention of An Garda Síochána;

—commends the Government's willingness to consider carefully, with partners, any specific and workable recommendations that may be made by the Council of Europe or the European Parliament in this matter;

—shares the Government's concern at a recent breach by the United States of procedures governing the transfer of sentenced prisoners; and

—commends the Government's decision to take appropriate steps to prevent any recurrence of this incident, including engagement with the United States authorities and the strengthening of verification procedures as necessary."

I welcome the opportunity to address the House on the issue of extraordinary rendition. Discussion of this issue has been distorted by rumours, assumptions and half-truths and I hope the debate will help clear up some fundamental misunderstandings in that respect. Naturally, I reject Deputy Michael D. Higgins's assertion that we have not complied with our positive obligations to prevent torture. I will explain that position later.

I wish once again to reiterate the Government's complete opposition to the practice of extraordinary rendition. This has been the Government's position since the existence of this practice was revealed. It has been made clear to the US authorities on numerous occasions, including at the very highest levels. To my knowledge, Ireland's was the first Government to raise this matter with the US Government, just as I was the first Minister to raise it with my EU colleagues last autumn under the British Presidency.

Partly as a result of our prompt action, the United States authorities gave Ireland categorical and unqualified assurances. These have been repeated on many occasions, including directly to me by Secretary of State Rice. It is worth highlighting that the United States Government has declined to issue similar blanket assurances to most other member states. We were one of only three countries in this position in Europe. These assurances were issued having been confirmed by all of the agencies which might be involved in such operations.

Those who speak of the Government doing nothing overlook the critical fact that we acted swiftly and decisively to confirm the realities of the situation. In his recent report Senator Marty makes no claim that prisoners may have been subject to extraordinary rendition through Ireland. This is confirmed by many others. To take one example from last weekend's newspapers, a journalist with a strong defence background, John Clarke, cogently set out why it would make no sense to move a terrorist suspect through a civilian airport like Shannon. In fact, that extraordinary rendition has not taken place through Irish territory in this manner is largely accepted in the wording of the Labour motion, which focuses on the Government's positive obligation to ensure that it does not facilitate torture by indirectly assisting rendition flights. I will go on to explain why the Government is confident it is fully implementing this obligation. However, given the nature of many of the allegations which have been made, I hope the public will register the fact that even critics of the Government no longer claim that any extraordinary rendition has occurred through Ireland.

I wish to address a number of points. First, I will devote some time to Senator Marty's report. I will then address the issue of diplomatic assurances and positive obligations before addressing the developments over the weekend that I outlined in a press statement earlier today.

I agree, despite the pervasive lack of hard evidence, that many of the aspects of Senator Marty's report are disturbing. It confirms why we are right to oppose extraordinary rendition. However, as regards the specific case of Ireland, Senator Marty's report produces absolutely no new evidence to implicate the Government in the practice. As was noted in the Irish Examiner over the weekend “there is no proof of anything”. The Irish Independent editorial of the same day stated the report was long on anecdote and short on facts. Moreover, not only is there a complete lack of evidence, the report lacks a clear chain of reasoning. It simply contains some cursory assertions, including one that Ireland “could be held responsible for collusion” for being a “stopover” for flights involving the unlawful transfer of detainees. I utterly reject this assertion, which seems to be based, as I will go on to explain, on a quite implausible and ill-founded analysis of what might conceivably have been possible for us to do.

Stephen Grey, a well known The New York Times journalist who specialises in this area, while giving evidence at the European Parliament examination of this issue, was questioned by Deputy Eoin Ryan, MEP as to whether he felt Shannon would be used. His answer was that this was highly unlikely. Tom Clonan, an Irish defence expert who has visited and spoken with staff at Guantanamo Bay, has reiterated recently — he outlined this position some months ago on live radio — that it was highly unlikely that Shannon was used, and that as far as the staff at Guantanamo were concerned, it was not used in any way in this respect.

Senator Marty fails to take account of our complete opposition to extraordinary rendition and the categoric assurances we have received that it did not take place through Ireland. To allege collusion without addressing either of these points is grossly unfair. Moreover, neither Senator Marty nor anyone acting on his behalf made a single approach or addressed a single query to the Government or our permanent representative to the Council of Europe.

It has been the Government's consistent position — I reiterate it again — that the Government will consider carefully with partners any specific and workable recommendations that may be made by either the Council of Europe or the European Parliament in this area. I anticipate that much of what both bodies will have to say will require co-ordinated action at a European level if it is to be effective.

Some commentators have claimed that every type of diplomatic assurance is suspect or insufficient. Such a development would represent a revolution in the way states conduct business with one another and, in the Government's view, is wholly unwarranted. In its response to the questionnaire circulated by the Secretary General of the Council of Europe, the Government outlined in considerable detail its view of its international law obligations relating to its positive obligation to prevent torture. In his analysis, the Secretary General made no indication that he had any objection to the Government's position on this matter, although it was clear he had read our response fully.

In essence, as I set out in a letter earlier this year to the Irish Human Rights Commission, it is the Government's view that there is a misunderstanding and misinterpretation of the relevant international case law. This does not in fact deal with assurances generally but rather, and explicitly, with assurances given in the context of the extradition or expulsion of a particular individual from one state to another. The cases in which the European Court of Human Rights has examined diplomatic assurances, to which the Deputy referred, have involved concrete situations in which a known individual is being deported to a particular state, and the assurances are given relating to matters over which the state does not exercise full control. The assurances given by the US authorities are factual, unqualified by any reference to the purpose or nature of any hypothetical transfer and to the effect that no persons have been so transported through Irish territory. This is clearly a matter entirely within the control of the US authorities. As such, these assurances are clearly of an entirely different nature to those considered by the European Court of Human Rights. The court has never held that a factual assertion by a State on a matter directly within its full control cannot be fully relied upon.

It is appropriate also to refer to the positive obligation on all contracting parties to prevent violations of Article 3 of the European Convention. In considering the nature of this obligation and Article 2, the court has held that a state's positive obligation is not unlimited and that not every claimed risk "can entail a Convention requirement to take operational measures to prevent that risk from materialising". It has also ruled that the obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the relevant authorities.

Suggestions of collusion and failure to fulfil positive obligations may have some basis where one is dealing with states which wilfully ignore potential illegality on their territory, but that is patently not the case with Ireland. To repeat, ours was the first Government, when rumours of extraordinary rendition emerged, to raise with the US authorities our concerns about the matter. Ours was the first Government to demand assurances that our territory would not be used for such purposes. To speak of a failure to act, which is the essence of the charge on positive obligations, against such a background of pro-active intervention, is quite unreasonable.

A number of bodies have suggested that our positive obligations under international law may require that searches of aircraft be carried out to meet our obligation to ensure that Ireland is not used as a transit point for extraordinary rendition flights. As has been repeatedly made clear, the Garda Síochána has the powers it needs to investigate all allegations of illegal activity. There is no legal bar to the search of civilian aircraft of the type allegedly involved, where there is a basis for doing so. With regard to Deputy Michael D. Higgins's remark that the Government has not sent in the gardaí, he has a somewhat twisted view of the power of the Government. Perhaps it was the case that when he was a Minister he could send gardaí hither and thither——

Mr. M. Higgins

I said the gardaí have never inspected a single airplane.

Mr. D. Ahern

The Deputy said we did not send the gardaí on to the airplanes. I do not have the power, nor should any Minister have the power——

Mr. M. Higgins

That is not the issue.

Mr. D. Ahern

——to send gardaí on to an airplane or premises.

Mr. M. Higgins

I said the gardaí have never inspected a single airplane and you are not in a position to say otherwise.

An Ceann Comhairle

Allow the Minister to speak without interruption.

Mr. D. Ahern

I did not interrupt the Deputy.

Mr. M. Higgins

No, but you are justifying——

An Ceann Comhairle

Deputy Michael D. Higgins will have an opportunity to speak again in this debate.

Mr. M. Higgins

If the Minister addresses me directly, I will respond, particularly when he is wrong.

Mr. D. Ahern

As I stated previously, identification by NGOs and the media of aircraft — I can shout the Deputy down — that are alleged to have been involved in extraordinary rendition activity has been possible only months, at the earliest, after such operations are said to have taken place. Furthermore, civilian aircraft of the type in question are not, under international law, required to apply for permission to land, meaning that a transited country may have very little notice of the arrival of such an aircraft. In this context, a regime of random search and inspection would be of very limited value. Moreover, given that, at most, the allegations are that such aircraft passed empty through Ireland, it is impossible to see how even if such aircraft were to be identified and searched, the outcome of such searches would shed any light on the matter.

The Government's approach to the subject of extraordinary rendition is one of continued engagement with the United States. This approach has allowed us to raise our concerns in an early manner, both bilaterally and in an EU framework, to receive considered responses and, ultimately, the Government believes, to fulfil our obligations under international and domestic law in the most comprehensive way possible. This approach continues to prove its worth to this day, as seen by our continuing engagement in the EU-US legal framework, where we have taken a leading role in opposing the creation of any framework for extraordinary rendition.

I will turn to a recent, quite separate, incident at Shannon and how the Government reacted to it. As I set out in a press statement earlier today, at 5 p.m. yesterday my Department was contacted by the US Embassy and informed that on Sunday, 11 June, a civilian aircraft landed at Shannon Airport for a technical refuelling stop en route from Kuwait to the United States. Among other unarmed military personnel the plane was carrying a US Marine convicted of a minor breach of the US military code. He was in military custody and was wearing military fatigues.

While the transfer of such a prisoner would be lawful under international and domestic law, it requires the consent of the Minister for Justice, Equality and Law Reform, but the US authorities did not seek such consent. This failure, though inadvertent, is unacceptable. Yesterday evening, upon my return from the General Affairs and External Relations Council in Luxembourg, I was informed of these events and immediately summoned the US Ambassador to Iveagh House, where we met for the best part of an hour. I outlined our grave concerns. The ambassador confirmed the sequence of events and made clear that the failure to seek consent arose from an administrative error. He conveyed his deep regret for the breach of procedures and undertook urgently to advise his authorities of my views. He also confirmed his willingness to review the situation immediately with a view to ensuring that there is no recurrence.

In his statement this evening, which I welcome, the ambassador repeated what he said to me. At the end of the statement he said:

We are determined that any use of Irish airspace or Irish airports by U.S. military aircraft or chartered civilian aircraft be completely transparent and in conformity with Irish law and the wishes of the Irish Government. We look forward to continuing our discussions and cooperation with the Irish government to ensure that such incidents are not repeated and to maintaining the relationship of trust and openness that prevails between our two countries.

I informed the ambassador that, notwithstanding the fact that this incident had no connection with allegations of extraordinary rendition, it was unacceptable that it should happen.

I briefed the Cabinet this morning. Following our discussion, we decided to make public our grave concern. We have asked for a full written report from the US Embassy. In addition, to ensure that appropriate steps are taken to prevent any recurrence of this incident, we will engage in further discussion with the US authorities on arrangements for notification and information sharing and the strengthening of verification procedures as necessary.

It has been the consistent position of the Government that no aircraft can use Shannon or any Irish airport for extraordinary rendition. We will not facilitate and have not facilitated extraordinary renditions. That is, and remains, our policy. We have always held that if the Government at any stage received hard evidence of extraordinary rendition we would act upon it and expect the Garda Síochána to act upon it, a position I repeated yesterday in an interview I gave to a journalist in Luxembourg.

While I reiterate that this incident is unconnected to allegations of extraordinary rendition, it is essential, not least in the interests of public confidence, that the Government takes appropriate steps in response to such a breach, and this is what we have done.

I wish to make a number of points about this most regrettable incident. First, it is clearly a matter of grave concern when any legal procedure is breached. I acted immediately to summon the ambassador and conveyed our very strong views, which he took fully on board. Second, it is important that appropriate steps are taken to ensure that, so far as is possible, there is no recurrence of such an incident. That is what the Government is doing. We appreciate that there is a wider question of public confidence and we hope that these steps will offer further reassurance that we are doing what we can.

If further specific proposals are made regarding the international regulation of civilian aircraft in particular, we will carefully examine these with our partners, whether in the Council of Europe context or otherwise. However, at the same time, it is important to keep what happened in perspective. This was a simple mistake, a regrettable mistake, but still a mistake. This was in no way an act or an attempted act of extraordinary rendition or related to such an act. Indeed, the Attorney General has confirmed that, quite unlike extraordinary rendition, which is illegal in all circumstances, there is nothing substantively unlawful about such a transfer, provided that ministerial consent has been obtained. It was not in this case.

The prisoner was not a suspected terrorist from a third country but a US Marine duly found guilty under the US military code of a minor offence. We understand from the US Embassy that to transport him back to the United States to serve his sentence, the local military authorities simply placed him on the earliest convenient flight. They apparently, according to the ambassador, were simply unaware that our consent was required and the embassy was also unaware of the flight until after the event. Obviously it should have been aware, and this information gap is one of the things that we expect the US to remedy immediately. I also suggest that carrying a prisoner through a busy civilian airport, where apparently he was visible in plain sight, hardly suggests that this was some covert operation.

The Government is fully aware of the seriousness of this episode and has acted immediately to take a range of steps with a view to preventing its recurrence. At the same time, what it was and what it was not should be clear. A sense of proportion is needed. This administrative error does not call into question the fundamental importance and reliability of the assurances we have received in the context of extraordinary rendition.

The Government's position on the issue of extraordinary rendition is, therefore, quite clear. We utterly condemn it, we in no way facilitate it and we are willing, with our partners, to consider carefully any practicable and specific proposals which the Council of Europe, the European Parliament or any other body may make to reduce the possibility of future cases occurring. At the same time, we do not accept that we have failed to meet our obligations. We utterly reject allegations of collusion, either passive or active, with this practice. I believe we have done and are doing all that is possible and practicable.

Mr. Carey

I welcome the opportunity to address the House on the issue of extraordinary rendition, not only as a member of the Fianna Fáil Party but also as a friend of America. I have listened, as always, to Deputy Michael D. Higgins's very unique and positive analysis. However, proportionality must apply in this case.

Ironically, given the benefits that have accrued to Ireland through the extraordinary range of ties that bond our two countries, there is a small but vocal anti-American body in this country, and in extraordinary rendition, it has found a subject with sufficient resonance to amplify its minority point of view. I am delighted to have the chance to challenge this unwarranted manipulation of the extraordinary rendition debate and to reaffirm the quality of the relationship between our two countries.

Extraordinary rendition is an issue on which the Government has taken a great deal of unwarranted flak, largely I suspect at the hands of people who are determined to look more at rumours than at facts. In the matter of extraordinary rendition, having received assurances, as the Minister has, of unsurpassed quality obtained early on from the US authorities and confirmed by the US Secretary of State, Condoleezza Rice, the Government is in an extraordinarily strong position, especially in the European context. Are we to ignore these on the basis of a series of unsubstantiated allegations? I believe we cannot do that, for actions are not without consequences.

The Government is in a unique position in Europe, having received specific unqualified bilateral assurances on extraordinary rendition confirmed by the Secretary of State. For the Government to discard those assurances would send a very curious message to the US Administration, and not just to it alone. Across the Atlantic, Ireland is viewed — as those of us who have had the opportunity to travel there on delegations will be aware — with a degree of affection that few, if any, countries can claim to enjoy. There are close cultural, economic and family bonds between people all across the US and Ireland, North and South. Not having to deal with consequences is a luxury that can be enjoyed by those who do not govern.

I thought that the wholehearted welcome given by the Peace and Neutrality Alliance, PANA, which was in the news last week, that one of the carriers which transports the troops through Shannon is to relocate its European transit point to Leipzig is typical of what an organisation such as PANA wants. It wants to have it both ways. This development will hardly be welcomed by the people in the Shannon region, so many of whom depend on the well-being of Shannon Airport for their livelihood. Are we to turn our back on our many ties with America, heedless of the consequences, on the basis of sweeping generalisations that do not apply in the Irish case? Surely not.

The sequence of events described by the Minister for Foreign Affairs only goes to reveal the seriousness with which both Governments treat the assurances concerned. The Government's prompt reaction shows its willingness to react to development in the area. The fact remains, however, that the error which caused the routing of a convicted member of the US military through Ireland in no way undermines or otherwise affects the US authority's clearly stated assurances in the wholly separate area of extraordinary rendition. The Government has been careful in its dealings with the US Government to ensure that Ireland has not been used for extraordinary rendition flights and equally to register its complete opposition to the practice.

The US authorities have accommodated Ireland's concerns in a way they have not accommodated those from many other European partners, some of whom are not just friends but allies. For us then to discard as worthless the efforts to which the US authorities have gone to appease a vocal minority seeking to advance an anti-American agenda would be irresponsibility of the highest degree. I urge Members in the strongest terms to register approval of the Government's policy in this area by supporting the proposed amendment.

Mr. Andrews

I support the Government's amendment. My first observation relates to the manner in which the circumstances of recent days emerged among the public. According to what I have read, a cleaner was on board the plane and was busy performing his or her duties, may have seen an individual who was a prisoner and may have reported it to an authority who then brought it to the attention of the Government. That is an extraordinary set of facts if we are to say that rendition is occurring through Irish airports. If the US Government is giving us assurances that it is not doing this and is happy to allow ordinary members of the public working as cleaners onto the planes, it would be grossly negligent of the US if it was trying to perpetuate a cover up. That amazing set of facts gives the lie to the possibility of a cover-up on the part of the American authorities in respect of what they are doing at Shannon.

My second observation is that during the past three weeks the House has been caught up in an interesting debate that was always well disciplined in terms of establishing a distinction between the political and the legal. I speak of the debate we have had on statutory rape. We had been careful to make that distinction to ensure the Oireachtas did not interfere with the Judiciary, yet in this debate we have gone back to the old ways of not making those distinctions as clear as they should be.

For example, the Minister confirmed that the Marty report did not hold any hearings. It did not connect with any authority in the Irish permanent representation in the Council of Europe, it did not give us an opportunity to put forward a point of view, and it carried out a straightforward investigation without the normal legal procedures of allowing the other side to give its view before making a legal finding. Therefore, the Marty report, for good or bad, is a political statement. It is not a legal finding, nor could it ever be, yet the phrase used to describe Ireland's position in regard to Shannon is "negligent collusion" which, to the ordinary member of the public, gives the impression of a legal finding, as if it had been the product of a thorough legal investigation where fair procedures were carried out.

We are dealing with international law. The criticism I have made of the US Government in the past, for what it is worth, is that the US has stood down from obligations in international law, starting from the UN and through many different treaties, including the Nuclear Non-Proliferation Treaty, the Nuclear Test-Ban Treaty and the International Criminal Court. While the US continues to operate outside international law, there is a difficulty in applying international legal standards. Therefore, we must operate on the basis of different procedures. Many European countries have bought into the US standing down. Ireland is not one of those countries. We are a neutral country and we have never bought into that view. We have received assurances which I am confident we can stand over.

The debate is never about whether people have gone through that airport. It is a case of whether planes used at another time came through that airport subsequently or previously. Therefore, that brings us into what Senator Marty described as a spider's web of collusion. I do not believe that is the case.

Deputy Carey made the point that, while the international debate on terrorism is taking place, there is an obsession in the House with only one side of that debate which queries whether American tactics are appropriate or proportionate to the challenge it faces. There is little debate about how we suppress terrorism. There are people in this House who believe the US caused and perpetuated terrorism and that the manner in which the US is conducting its war on terrorism is morally worse than terrorism itself. There is no critical analysis of the causes of terrorism nor effort to assess how this State can contribute towards bringing terrorism to an end. It is unfortunate that the debate concentrates solely on those issues and not on the other side. We are very peripheral and marginal to the debate internationally about how terrorism will be dealt with. If one were to use a soccer analogy, we are up around the corner flag while the main game is taking place.

We need to remember that torture is illegal and unacceptable in any circumstance. It could not be legal in Ireland to have extraordinary rendition. We must do everything we can, whatever else the Council of Europe recommends. It merely described a set of facts and made no recommendations. We should look at any Council recommendations positively, and act upon them if necessary.

Mr. Durkan

I wish to share time with Deputy Pat Breen.

I too claim to be a friend of the United States, and many established relationships between our countries have existed over the years. I take on trust what we ask for and what we give. However, I am not in favour, nor is Fine Gael, of the extraordinary rendition type of episodes we have heard about. I am not suggesting this has taken place or that Shannon has been used for transporting such people, prisoners or otherwise.

We have debated Abu Ghraib in this House. The standard by which we treat prisoners tells something about all of us. Whatever standards are upheld, whatever international agreements have been put in place over the years and have been observed or otherwise, will tell a story about what we intend to do in the future. Any deviation from best practice in that area is a serious matter which the Government should not minimise in terms of its importance. One step in the wrong direction immediately places the Government and the Minister for Foreign Affairs in a serious situation.

I know the Minster cannot go on an aeroplane and check or verify what is happening, so I do not accuse the Minister of not doing his job — not because I cannot prove it, but neither can he in the present circumstances, which is a sad thing because international agreements are based on trust, and such agreements between friendly nations are more particularly based on trust. Any undermining of that trust is a most serious issue and cannot be condoned under any circumstances. I spoke on this issue at meetings of the Joint Committee on European Affairs along with many others, including Deputy Michael D. Higgins. When this situation was referred to, I said that certain obligations were placed on the US and Irish authorities and that any deviation from observance of those responsibilities would have consequences. There are consequences, as the Minister knows, if there is a breakdown in any such arrangements.

I recognise that the US people suffered hugely as a result of the atrocities at the twin towers. That does not mean that everything and anything can be used to track down, intimidate or extract confessions from prisoners of one kind or another, no matter what the circumstances. It is not possible or permissible. As a lawyer and legal practitioner, the Minister knows the rules.

I repeat that I am not accusing the Minister of any dereliction of duty because as Deputy Michael D. Higgins said, we accept the Government's bona fides in that matter. However, we do not know if the Minister can verify with absolute authority in every instance of all the airplanes which passed through Shannon Airport, or any other airport that nothing of the nature referred to by previous speakers could have happened. How does one achieve that situation? Does one do nothing? The Taoiseach and the Minister for Foreign Affairs sought and got assurances from the US authorities. One must think of the value of the assurances. The currency of the assurance is only as good as what shows up thereafter. If the assurances which the Minister sought and was given in good faith cannot be authenticated in all circumstances, they mean nothing. There is then a serious undermining of international law and international recognition for each other's positions and for precedents and precepts which have stood for a long time.

There was a time when any such deviation would be regarded as a major incident. Let us look at a sequence of events which the Minister tends to minimise and which he has very adroitly separated in his speech. The events of last Sunday concern the general issue of rendition. The Minister and Government were of course made aware of the situation, but at that stage the cat was out of the bag. It was known what had happened. If the US authorities were deeply conscious of the need to alert the Irish Government in the event of there being any unusual movement of prisoners or otherwise through one of our airports, will the Minister indicate why someone did not have the idea of alerting the Government before the individual in transit was spotted by somebody else? Why was it not possible beforehand, if they were conscious of their obligation to make known to the Irish Government what was happening, or why did it not automatically follow that in the transport of a prisoner — a prisoner for whatever reason — through the airport the authorities, out of courtesy to each other, did not exchange views? I speak of courtesy because this goes back to the arrangements entered into and their value and currency by virtue of the degree to which they are observed by both parties. In the event of one party deviating, there is a general let-down. They let themselves down, along with the partner, person, group, state or nation with whom they entered into that international agreement. They let everyone down. That is something I hope will not happen again.

Can the Minister and the Government give an indication of how such events will be verified in future? How will they verify the type of traffic going through the airport in all circumstances, without exception, since there has been a breach, though maybe a minor breach? Unfortunately that breach indicates a somewhat blasé attitude to the international agreements to which I and others have referred.

When the issue arose, it was obviously known to the Government and the Minister for Foreign Affairs that any incident at all could be highly embarrassing. The Government would also have known it was imperative to find some means to ensure that something like this did not happen. What measures are being put in place to make certain that if something similar to what happened last Sunday were to happen again, the Irish authorities would be informed? If something even less controversial was to happen, would the Irish authorities be informed, or would it be regarded as being none of their business?

I will dwell on this area briefly. It could well be that somebody somewhere made a decision. There were a few embarrassing moments. I mentioned Abu Ghraib. There were references by other speakers to various movements of aircraft throughout the globe whereby it was indicated that perhaps measures which would not be approved by international law were taken against prisoners in transit or otherwise. Something like than cannot be condoned in any circumstances. There are no situations where we can abrogate our international contracts in international law. The strength and weakness of our own law can often be determined by the degree to which those with whom we enter into agreements observe it. If they do not observe the agreements, our law means nothing. International law goes down the tubes along with it. Accordingly we cannot allow anything like that to happen ever again.

This comes back to how the Minister will prevent such events recurring. While I have no reason to believe the Minister would avoid his duties, if he cannot prevent such events, his credibility and that of the Government will be damaged. It would be unacceptable if the message were to go abroad that such events were in order and were ignored because the US is a friendly country to Ireland. The public places trust in its Government. When it raises a question it expects an answer. A degree of transparency must be introduced in this matter. The Minister for Foreign Affairs knows that if the boot were on the other foot, he would be embarrassed and would be quick to assert that such a situation was not agreed to and that the Government should have been informed. We cannot pussyfoot about it. The issues raised are serious ones requiring urgent attention and they must be dealt with in the shortest possible time. Failure to do so will reflect poorly on the Irish and US authorities.

I do not believe random inspections, if introduced, would work. Usually inspections have a pattern that can be observed. One can always avoid the rigours of an inspection by checking patterns. It is in the Government's interest to establish absolute clarification from the US authorities as to what has been occurring from the time extraordinary rendition became the subject of public debate. This should not just be based on the Marty report but there should be a thorough examination to determine whether there were breaches of the convention.

It is said that even the trust between enemies must be observed, but the trust between friends must be observed. The degree to which the Minister and his counterparts can stand over that trust will tell how much the people, the Constitution and the State can rely on it.

Mr. P. Breen

As a Member from County Clare, Shannon Airport is close to my heart. I was born and live six miles from the airport and, from my house, I can often see the airplanes taking off. I am concerned about the negative reports on the airport in recent weeks. I welcome Dick Marty's investigation into rendition flights. The naming of Ireland as a state involved in an indirect fashion in facilitating CIA-operated planes landing at Shannon puts the spotlight on the Government's record in upholding the Convention on Human Rights.

Much of the report, however, has been misinterpreted. On the one side, some politicians have rubbished the report, claiming it is anti-American and that rendition flights are acceptable. On the other, anti-war protestors claim they were right all along that rendition flights operated through Shannon Airport. The truth of the matter lies somewhere in between. The report is not anti-American. Ireland, particularly Shannon, has enjoyed a good relationship with America. As Deputy Durkan commented, we must trust our friends, and it is important that trust is not abused.

Millions of Americans are appalled at the notion of rendition flights and its implications for the observance of human rights law. I believe Shannon Airport has not been used for rendition flights and it should not be so used in the future. Any Irish involvement with the unlawful transfer of detainees would be unacceptable. I accept, however, there is no evidence that Shannon was used for rendition flights. It is also unlikely the airport would be used for such purposes considering NATO airbases and US-operated bases in the UK.

Last Sunday a cleaner on board a US aircraft spotted a prisoner. Service handlers boarding aircraft is a regular occurrence. I do not believe the American authorities would be so stupid as to have a prisoner on a flight that could be boarded by a service handler. It was a genuine mistake.

It is important to note Dick Marty's comments that Shannon is involved in an indirect fashion. As a member of the Council of Europe, I welcome his report which highlights the need for continued vigilance in upholding the European Convention on Human Rights. The Government's action in the latest episode involving breaches of protocol regarding the transfer of prisoners through Ireland is to be welcomed. Measures must be introduced to ensure this does not happen again. Procedures for notification of prisoner transports must be strengthened. The Government must be more proactive in ensuring passenger lists for all flights are provided for the relevant authorities. The US authorities must be more forthcoming and I welcome this afternoon's statement by the US ambassador.

My wider concern is the position of Shannon in all of this. Last week World Airways, the largest airline transporting US soldiers through Ireland, announced that from next month it would switch all its refuelling operations to Leipzig in Germany. This decision and the failure of Aer Lingus to promote the airport underlines the challenges it will face after the introduction of the open skies policy and the privatisation of Aer Lingus. In the short term, the World Airways decision will lead to job losses from the catering section of the Shannon Airport Authority. There will be significant loss of business to the duty free shop, hotels and small businesses in the area sub-contracted to supplying airport services. World Airways claims the decision was made for economic reasons. The Minister for Transport must take responsibility and explore the real reasons behind the decision.

The Minister for Foreign Affairs referred to reports from last Saturday's The Irish Times and Irish Independent on Dick Marty’s report. Will the Minister comment on the advertisements by Aer Lingus in last weekend’s newspapers on promotional flights to New York from Dublin Airport with no reference to Shannon? Aer Lingus is neglecting Shannon Airport. While new routes from Cork and Dublin airports have been opened by Aer Lingus, it has not opened one new route from Shannon since 11 September 2001. It continues to erode its services from the airport. Evidence of this is contained in last month’s Cara magazine with an article by Dermot Mannion on the future of the airport.

American airlines now do more business out of Shannon than the national carrier. The loyalty shown by Shannon to Aer Lingus has been eroded, which is sad. When the negative publicity about Shannon and the rendition flights passes, politicians must get their act together for the future of the airport. They must put it back on an even keel and promote it as the gateway to the west. We have had enough negative publicity about the airport. It is time for positive action.

Debate adjourned.