I thank the committee for providing us the opportunity of presenting our report. Dr. Manning has outlined the remit of the commission and I will explain the reasons we have been concerned and the nature of the legal advice we have given to the Government on this most important of human rights issues.
Before doing so, however, it is important that we put this issue in context by stating plainly what the term "extraordinary rendition" actually means. It is an American term used to describe what is essentially the forcible kidnapping of an individual by the agents of a state and the transfer of that person to a secret prison in another state where he or she can be tortured or subjected to inhuman or degrading treatment or punishment without recourse to the courts, lawyers or any of the mechanisms set up to protect the human rights of an individual. It is a practice designed to circumvent and set at naught the human rights principles and practices that have developed over decades to protect the rights of those under investigation or in detention. Detainees subjected to extraordinary rendition have described having their clothes cut off, being subjected to an extensive and invasive body search, being forced to wear a nappy, being hooded, shackled, drugged and strapped to a mattress or floor in an uncomfortable position, with no knowledge of their fate or destination. This treatment alone, which continues throughout the transit, clearly falls within the definition of inhuman and degrading treatment. It does not include the torture or ill-treatment which inevitably faces the detainee in the third country. The prohibition on torture and ill-treatment generally is, of course, an absolute obligation on states and does not permit of any derogation.
The commission's advice to Government on this issue dates back to 21 December 2005 when we sent our initial letter to Government outlining our legal concerns that the State may be in breach of its human rights obligations by failing to investigate claims that Shannon Airport might be used by CIA aeroplanes involved in the practice of extraordinary rendition. As the Chairman indicated earlier, such claims had been raised in the Irish media and in other quarters for some time. Amnesty International had reported on the 5 December 2005 that six aeroplanes used by the CIA for extraordinary renditions had made 800 flights in and out of European airspace, which included 50 landings at Shannon. The issue had at that stage also been raised in the Oireachtas, where parliamentary questions had been put to then Minister for Foreign Affairs, Deputy Dermot Ahern, about the matter. The commission was also aware of international investigations taking place at a broader level regarding extraordinary rendition by the CIA of detainees to secret detention facilities in Europe and beyond. This included in particular the investigations being conducted at that time by a committee of the Parliamentary Assembly of the Council of Europe led by Senator Dick Marty and the inquiry being conducted by the Secretary General of the Council of Europe, Mr. Terry Davis, pursuant to Article 52 of the European Convention on Human Rights, ECHR.
The primary focus of the commission at that stage was on the preventive aspect of the guarantee against torture or inhuman or degrading treatment or punishment enshrined in the United Nations Convention against Torture and also implicit in Article 3 of the ECHR and Article 7 of the International Covenant on Civil and Political Rights. The State is party to all of these conventions. Based in particular on the case law of the European Court of Human Rights, the commission took the view that the State should conduct an official investigation where an arguable claim is raised that a breach of Article 3 of the ECHR is being committed by third parties, which includes agents of a foreign state, within the jurisdiction of the State. The principle of non- refoulement embedded in Article 3 of the ECHR inevitably requires that such an investigation also take place where the State’s territory is being used to facilitate the transportation of any person to a place where there is a risk of ill-treatment in violation of Article 3.
In that December 2005 resolution we indicated our view that diplomatic assurances were not sufficient to fulfil a state's obligations to guard against torture or ill-treatment. This view was based, in particular, on the decision of the UN Committee Against Torture in the case of Agiza v. Sweden, the decision of the European Court of Human Rights in Chahal v. United Kingdom and the views of the UN special rapporteur on torture in his August 2005 report to the UN Commission on Human Rights. We were aware at that stage that the Irish authorities had the legal right to search all civil aircraft which were the subject of these allegations. However, we believed that our proposal to seek permission constituted a non-confrontational method of resolving the matter.
As documented in the appendices of our recent report, and mentioned by Dr. Manning, the Government disagreed with the commission's advice and there followed a number of written exchanges between us, culminating in an oral dialogue in July 2007. One positive outcome of these constructive engagements was that the Department provided the commission with a copy of the diplomatic assurances which it had sought and received from the US Government on the transportation of prisoners through the territory. Diametrically opposed views on the legal issues emerged in the course of our dialogue with Government, as a result of which the commission decided to conduct a thorough review of the matter. It conducted this review having regard to the further evidence which had emerged by mid-2007 on the nature and extent of the extraordinary rendition programme, the possible use of Shannon Airport, the case law of various human rights bodies, as well as the views of various organisations and commentators on the matter. The results of that review are contained in the detailed report before the committee.
In the result, the review demonstrates that in December 2007, the commission is fortified in the view which we first expressed two years ago that the reliance being placed by the Government on the diplomatic assurances it sought and obtained from the US Government is not sufficient to comply with the State's obligation to prevent torture. More must be done by the State to fulfil its positive obligation to prevent torture or ill-treatment taking place in its territory or airspace and to ensure that its territory is not being used in any way to facilitate extraordinary rendition to another State where a person may be tortured or subjected to ill-treatment.
The second main conclusion reached in the review, which may be characterised as a recommendation, is that in order to ensure full compliance with its human rights obligations, the State should put in place a reliable and independently verifiable system of inspection, so that no prisoner could ever be transported through this country except in accordance with proper legal formalities and the highest observance of human rights standards. It is not sufficient that the State relies on private individuals to bring forward evidence to the Garda of suspicious activities of aircraft. In the absence of a proper system of inspection, it is impossible for any ordinary citizen to gain evidence regarding such activity or to ascertain with any level of confidence whether such illegal activity is taking place in the State. As was pointed out by the Department, the ordinary citizen has no authority to access the relevant parts of Shannon Airport to gain evidence.
Other specific recommendations of the commission are detailed in the final pages of the report and in the executive summary. The views of the commission are based on our firm belief that there is credible evidence already in the public domain that Shannon Airport has been used by specific aeroplanes used in extraordinary rendition circuits. This evidence is sufficient to trigger our human rights obligations to prevent torture and ill-treatment and to investigate the matter.
The additional information now to hand which was not available in 2005 is as follows. The investigation commissioned by the Council of Europe's Parliamentary Assembly concluded that a number of countries, including Ireland, could be held responsible for collusion in the process of extraordinary rendition by virtue of being stopovers for flights involving the unlawful transfer of detainees. In a resolution in June 2006, the Parliamentary Assembly called on member states to "take effective measures to prevent renditions and rendition flights through the member state's territory and airspace".
An investigation was conducted by the European Parliament's temporary committee on rendition and the parliament passed a resolution in February 2007 in which it specifically deplored the stopovers in Ireland made by aircraft that are known to have been used by the CIA in extraordinary rendition activities. The Parliament also recommended a ban on CIA aircraft landing in Ireland unless a regime of inspection was in place.
As I mentioned, in November 2005 the Secretary General of the Council of Europe invoked a seldom-used procedure under Article 52 of the ECHR. His investigation concluded that while stronger international controls were required to check whether transiting aircraft are being used for illegal purposes, even within the current legal framework, states should equip themselves with stronger control tools. He also concluded that mere assurances by foreign states that their agents abroad comply with international and national law are not enough, but that formal guarantees and enforcement mechanisms need to be set out in agreements and national law in order to protect ECHR rights.
A legal opinion commissioned by the Council of Europe, known as the Venice commission opinion, concluded in March 2006 that member states should refuse to allow transit of certain prisoners in circumstances where there is a risk that they will be exposed to torture or ill treatment. It states that where a state has serious reasons to believe that the mission of an aircraft crossing its airspace is to carry prisoners with the intention of transferring them to countries where they would face ill-treatment, that state must take all possible measures to prevent the commission of human rights violations in its territory, including its airspace. This opinion was compiled with the assistance of a number of human rights experts throughout Europe.
Jurisprudence on cases concerning extraordinary rendition by both the UN committee against torture and the UN human rights committee, to which I earlier referred, have made clear that a state cannot shelter behind assurances it has received from another state in order to fulfil its obligation to prevent torture or inhuman or degrading treatment or punishment. States are required to take "steps of due diligence" to avoid a threat to an individual.
These statements of principle can and do apply to the predicament faced by this State. It is not sufficient that the Government should rely on a very narrow view of the case law that has emerged to date on the question of diplomatic assurances. Given the entirely secretive nature of the process and the inability of victims to access any legal system, the likelihood of a victim of extraordinary rendition, who had been transited through a state like Ireland in the course of a rendition operation, ever being able to prove such facts in a court of law is very remote. Therefore we must rely on the spirit of the case law expressed to date, which in our view and that of many other eminent experts in this area leads to the inexorable conclusions reached in our report. These conclusions have been substantially endorsed very recently by the United Nations High Commissioner for Human Rights, Louise Arbour, and the Council of Europe's commissioner for human rights, Mr. Thomas Hammarberg, in visits to Ireland.
The commission is sincerely of the view that the recommendations contained in our report should be implemented urgently in order to ensure the State is not in violation of its international human rights obligations. The inspection regime, which we have recommended, would show this State's willingness to comply with the recommendations of the Council of Europe and the European Parliament on the practice of extraordinary rendition.
Given that the programme for Government agreed between Fianna Fáil, the Green Party and the Progressive Democrats contains a commitment that Ireland will be a model UN state, this system of inspection would send a clear signal to the international community that Ireland is taking effective steps to ensure human rights are being observed. It would also demonstrate the Government's willingness to fulfil its commitment in the programme to ensure all relevant legal instruments are used so the practice of extraordinary rendition does not occur in any form in this State.
The Department of Foreign Affairs has taken the lead on this issue for Government to date but in our view it is necessary for the Departments of Justice, Equality and Law Reform and Transport, and indeed An Garda Síochána, to work together if the State's international obligations are to be met in putting in place an effective inspection regime.