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2019 | Juliana Gil Borenstein - Extraordinary Renditions and State Secrets: A Human Rights Approach

Following the 9/11 attack, fighting terrorism became a priority for many governments. However, it is now widely known that in their considerable effort to combat terrorism States have often used disproportionate force and acted arbitrarily, breaching their obligations under international and domestic law. One of the most controversial measures adopted so far is the extraordinary rendition and secret detention programme, by which States transfer, without any legal process, a person to the custody of another State for detention and interrogation.  

It is alleged that detained people have been subjected to torture and inhuman or degrading treatment, in contravention to both international human right law and international humanitarian law. Unfortunately, victims’ efforts to have alleged violations assessed by the judiciary and obtain some kind of redress have been hampered by governments’ misuse of the state secrets privilege argument. The case of Abu Omar v. Italy, El-Masri v. Tenet, and Mohamed v. Jeppesen Dataplan Inc. are primary examples.  

This article contends that the ‘state secrets privilege’ argument, created to protect their right to confidentiality in national security affairs, is used by governments to prevent their gross violations of human rights from being assessed by the judiciary; hence, violating victims’ rights and promoting impunity. As much as the existence of secrecy is of paramount importance for every nation, no secrecy can serve as an excuse for governments to violate human rights and disregard the rule of law. With this in mind, the author contends that it is in the interest of democracy and justice to strike a balance between the concern for national security and the protection of human rights. Insofar as this jurisdictional construction prevents courts from addressing the alleged human rights violations brought to it by the victims, the state secrecy argument effectively establishes impunity for human rights abuses. In this respect, the article reasons that an impartial judicial organ must scrutinise the claim of secrecy in national security related issues, as to create a system of checks and balances.