Private Companies and Extraordinary Rendition

I had the great pleasure last Friday to present a paper as part of the Scrymgeour Seminar Series in Dundee Law School. My lecture, entitled “Privatised Torture: Reflections on the Implications for Human Rights Law of the Emergent Phenomenon of Out-Sourced Torture”, has now been posted as part of the UCD Working Paper Series on Law, Criminology and Socio-Legal Studies on SSRN and is available for download here.

Here’s the abstract:

This paper, delivered as part of the Scrymgeour Lecture series of Dundee Law School, addresses the phenomenon of the use of private entities (airline companies and air traffic logistics companies) in the transportation of suspected terrorists for interrogation and torture (‘extraordinary rendition’). In addressing this phenomenon from the perspective of international human rights law, the paper makes both normative and practical arguments. Normatively it is claimed that the use of private entities for the purposes of concealment of activity and in the attempt to minimise liability in the event of suit reveal a position termed ‘ontological acceptance: intentional breach’ by the United States towards the absolute prohibition of torture in international law. It is argued that the normative core of the prohibition is sound, but that the gap between norm and enforcement is exacerbated by the use of private entities. The final part of the paper argues for an approach to enforcement that addresses both the public and the private through law and regulatory mechanisms.

The paper is essentially a stimulator paper to begin the work I will be doing over the next two years or so as part of a major project on transnational private regulation. I will be involved in the human rights stream of that work, with a particular focus on extraordinary rendition, and thinking about how regulatory techniques might be used to promote and protect individual rights. That research will be funded by the Hague Institute for the Internationalisation of Law and is led from three focal points in UCD, the EUI and Tilburg. Here are the details of the project.

Those who attended the lecture on Friday in Dundee have already given me copious amounts to think about and been exceptionally helpful. Any comments or views that others have on the ideas in the paper are most welcome.