Present

CONFERENCE PAPER SUBMISSIONS AND SPEAKERS BIOGRAPHIES

April 1st 2009, Strasbourg

Conference organizers:
The Center for Constitutional Rights (CCR, based in New York, www.ccrjustice.org) is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. CCR uses litigation proactively to advance the law in a positive direction, to empower poor communities and communities of color, to guarantee the rights of those with the fewest protections and least access to legal resources, to train the next generation of constitutional and human rights attorneys, and to strengthen the broader movement for constitutional and human rights. CCR has led the legal battle over Guantanamo for the last six years sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA ghost detainee there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantnamo because they cannot return to their country of origin for fear of persecution and torture. The International Federation for Human Rights (FIDH, based in Paris, www.fidh.org) was established in 1922, and is now a federation of 155 non-profit human rights organizations in more than 100 countries. FIDH coordinates and supports affiliates' activities at the local, regional and international level. FIDH strives to obtain effective improvements in the prevention of human rights violations, the protection of victims, and the sanction of their perpetrators. With activities ranging from judicial enquiry, trial observation, research, advocacy, and litigation, FIDH seeks to ensure that all international human rights and humanitarian law instruments are respected by State parties. FIDH also represents victims of grave crimes before the International Criminal Court in The Hague. Since 2002, FIDH has initiated and supported key proceedings before domestic courts and regional and international monitoring bodies in cases concerning arbitrary detention, torture, and other abusive practices undertaken in the context of the fight against terrorism. FIDH coordinates a legal action group of lawyers using tools such as universal jurisdiction to hold accountable those who wont be prosecuted in their own country for grave crimes. CCR is FIDH member organization in the United States. The European Center for Constitutional and Human Rights (ECCHR, based in Berlin www.ecchr.eu) is an independent, non-profit civil society organization founded by a small team of well-known human rights lawyers. The Center focuses on four general areas: Universal Justice, Business and Human Rights, Counterterrorism and Human Rights as well as an Education Program. It is dedicated to advancing and protecting the rights guaranteed by the Universal Declaration of Human Rights and other international and national laws and constitutions. The attorneys representing ECCHR are committed to the creative and effective use of law as a positive force for social change. ECCHR was established as a litigation, training, educational and coordination group. From its headquarters in Berlin, Germany, ECCHR aims to coordinate and thereby strengthen the efforts of human rights advocates across national borders, initiating and supporting key litigation and providing public education and training in international human rights law.

CONFERENCE PROGRAM: 8:30 9:00: Registration and Breakfast Refreshments 9:00 9:15: Welcome and Introductory Note By Dan Van Raemdonck, Vice President of the International Federation for Human Rights (FIDH) 9:15 11:05: PANEL # 1: NATOs Changing Roles in the Post-9/11 World Moderator: Alain Joxe, Study Director at lEcole des Hautes Etudes en Sciences Sociales and Director of CIRPES, Centre Interdisciplinaire de Recherches sur la Paix et d'Etudes Stratgiques, Paris NATO Invoking Article 5 on September 12, 2001 By Edgar Buckley, Former NATO Assistant Secretary General for Defense Planning and Operations (1999 to 2003) NATO in Afghanistan - Problems of Command and Control By Otfried Nassauer, Founding Director of the Berlin Information-Center for Transatlantic Security (BITS) A Web of Secrets? NATO and the Diffusion of Secrecy Rules By Alasdair Roberts, Jerome L. Rappaport Professor of Law and Public Policy at Suffolk University Law School, United States NATO Post 9/11: The View from Moscow Dr. Dmitry Danilov, Head of Department of European Security, Institute of Europe, Russian Academy of Science, Moscow 11:05 11:25: Break (with refreshments) 11:30 13:20: PANEL # 2: The Place of Human Rights and the Role of NATO in the Context of the War on Terror Moderator: Michael Ratner, President of the Center for Constitutional Rights (CCR), New York Use of a NATO Framework for Renditions and Secret Detentions Operations in the War on Terror By Gavin Simpson, Human rights lawyer and investigator with One World Research, New York The International Legal Obligations of States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners By Giorgio Malinverni, Judge at the European Court of Human Rights, former member of the Venice Commission Voices from the Ground: NATOs Role in Afghanistan

By Dr. Sima Samar, Chairwoman of the Afghanistan Independent Human Rights Commission, former Minister of Womens Affairs for the Interim Administration of Afghanistan And by Yama Torabi, Representative of OPEN ASIA / Armanshahr, Afghanistan 13:20 14:35: Lunch Break 14:40 15:10: Discussion (including Q&A) with Maher Arar, Syrian-born Canadian citizen rendered and tortured as part of the U.S. extraordinary rendition program - Live Via Video Conference 15:15 15:35: Break (with refreshment) 15:40 17:40: PANEL # 3: 60 Years Later: Accountability and the Significance of NATOs Commitment to Human Rights Moderator: Wolfgang Kaleck, Secretary General of the European Center for Constitutional and Human Rights (ECCHR), Berlin Accountability for Human Rights Violations in a Time of Conflict: A European State Perspective By Phil Shiner, Attorney, Supervisor of Public Interest Lawyers (PIL), United Kingdom Accountability of National Contingents and NATO to International Mechanisms By Francoise Hampson, Former expert on the U.N. Sub-Commission on the Promotion and Protection of Human Rights (1998-2007), Barrister and Professor of Law at the University of Essex, United Kingdom Arbitrary Detention and Detainee Abuse in Afghanistan By Pardiss Kebriaei, Attorney with the Guantanamo Global Justice Initiative at the Center for Constitutional Rights (CCR), New York

BIOGRAPHIES IN ORDER OF APPEARANCE:

Dan Van Raemdonck is Vice President of the International Federation for Human Rights (FIDH), a federation of 155 member organizations in more than 100 countries. As FIDH Vice President, he is in charge of the respect of fundamental rights and freedoms in the fight against terrorism. He is President of Honor of the French-speaking Belgian Human Rights League and of the European Association for the Defense of Human Rights (Association europenne de Dfense des droits de l'Homme AEDH). Mr. Van Raemdonck is a Doctor in Philosophy and Literature, and Professor of French Linguistic at the Free University (Universit Libre) of Bruxelles and at Vrije Universiteit Brussel. Alain Joxe is president of the Interdisciplinary Center on Peace Research and Strategic Studies (Centre Interdisciplinaire de Recherches sur la Paix et dtudes stratgiques CIRPES) which he founded. He is secretary of the Study Group on French-German relations at the Study Center on

Foreign Politics. In 1960, he was researcher at the Institut franais des tudes stratgiques (directed by General Beaufre) then chief of work at lEcole pratique des Hautes tudes. From 1966 to 1970, he was associate professor at the Instituto de Estudios internacionales in the University of Santiago in Chile where he headed a strategic studies seminar. From 1971 until 2001, Mr. Joxe was Master of conference, then Director of study at the cole des Hautes tudes en Sciences sociales (School of High Studies on Social Sciences EHESS). He then creates and directs the Sociology of Defense Group at the EHESS and founded CIRPES. Since 2001, he is Honorary Study Director and president of CIRPES which publishes the collection les Cahiers dtudes stratgiques. He is the author of many books and essays, including Le cycle de la Dissuasion (1945-1990) , or Empire of disorder published in 2002 and translated into English, Spanish, Romanian, Turkish, Italian, and Arab. Edgar Buckley is currently Senior Vice President of European Business Development, based at Thales headquarters in Neuilly-sur-Seine, France. He is also the director of Thales Raytheon Systems Ltd and Vice Chair of the Executive Council for Global Relationships of the Network Centric Operations Industry Consortium. From 1999 until 2003, he was the NATO Assistant Secretary General for Defence Planning and Operations, responsible under Lord Robertson for NATO defence policy and operational issues. Before that, from 1996 until 1999, he was responsible for policy advice on UK military operations and UK defence relations with countries outside Europe and North America as Assistant Under Secretary of State (Home and Overseas) in the Ministry of Defence in London. In previous appointments, Mr. Buckley was the Defence Counsellor to the UK Delegation to NATO and the Western European Union from 1992 until 1996. He has also acted as head of the MOD Defence Arms Control Unit from 1991 to 1992 and head of Resources and Programmes for the Navy from 1985 to 1989. Mr. Buckley was made a Companion of the Order of the Bath in 1999. Otfried Nassauer, born in 1956, studied theology and is founding Director of the Berlin Information-center for Transatlantic Security (BITS) since 1991. For more than twenty years he worked as a free-lance investigative journalist in military and international security affairs. Otfried Nassauer has published widely on NATO policy and strategy, German and European Security, military technology and arms control. His articles appear in many major media as well as specialized journals. He also works for public TV magazines and several radio shows. He is editor and author of several books. For information on recent publications please have a look at the publications section at www.bits.de. Alasdair Roberts is the Jerome L. Rappaport Professor of Law and Public Policy at Suffolk University Law School in Boston, Massachusetts. Professor Roberts writes extensively on problems of governance, law and public policy. His next book, Disciplined Democracies: Global Capitalism and the New Architecture of Government, will be published by Oxford University Press in 2009. His last book, The Collapse of Fortress Bush: The Crisis of Authority in American Government, was published by New York University Press in 2008. A previous book, Blacked Out: Government Secrecy in the Information Age, received the 2006 Brownlow Book Award from the US National Academy of Public Administration, and three other academic book awards. Professor Roberts was elected as a fellow of the US National Academy of Public Administration in 2007. He is also an Honorary Senior Research Fellow of the School of Public Policy, University College London. His web address is www.aroberts.us.

Dr. Dmitry Danilov, Head of Department of European Security, Institute of Europe, Russian Academy of Sciences. Born in 1960, Dr. Danilov graduated from Moscow University from where he holds his PhD in economics. Author of about 100 scientific publications, he took part in preparation of analytical reports for state and governmental bodies of Russia and for international organizations. Dr. Danilov headed, from the Russian side, the common research project undertaken in 1996-1998, following ministerial indications, by Institute for Security Studies of the Western European Union and Institute of Europe of the Russian Academy of Sciences with the purpose of finding the ways and modalities for enhanced relationship between the Russian Federation and western EU/EU. Dr. Danilov received the State grant for distinguished academics (for 2000-2003) and is member of Euro-Atlantic Cooperation Association board, of Association of European Studies, of the Steering Committee of the European Security Forum. He specializes in problems of European security institutions, militarypolitical aspects of transatlantic relationship, Russian security policy; also published some works on the peace-keeping and conflict prevention, as well as defense economics. Michael Ratner is President of both the Center for Constitutional Rights (CCR) and of the European Center for Constitutional and Human Rights (ECCHR). He was co-counsel in representing Guantanamo Bay detainees in the United States Supreme Court in Rasul v. Bush (2004) and Boumediene v. Bush (2008). Since 9/11, Mr. Ratner and CCR have spear-headed the struggle to restore the fundamental right of habeas corpus and continues to combat the illegal expansion of executive power and the American torture programs that have undermined fundamental rights in the name of the so-called war on terror, by representing victims of torture, rendition and domestic spying. He is the author of many books and articles, including The Trial of Donald Rumsfeld: A Prosecution by Book, Against War with Iraq and Guantanamo: What the World Should Know and the textbook, International Human Rights Litigation in U. S. Courts. He has taught law at Yale Law School and Columbia University Law School. Mr. Ratner is the recipient of many honors and was included in The National Law Journals list of 100 of the Most Influential Lawyers in America. In 2007 Mr. Ratner received The Puffin/Nation Prize for Creative Citizenship. Gavin Simpson is the Senior Investigator with One World Research (www.oneworldresearch.com), a New York-based research and investigation firm that specializes in human rights and public interest issues. Previously he was the lead investigator on the Council of Europe's "Marty Inquiry", fact-finding and reporting on behalf of Swiss Senator Dick Marty for the 2006 and 2007 reports on alleged secret detentions and renditions involving Council of Europe member States. Giorgio Malinverni has been a Judge of the European Court of Human Rights since January, 19 2007. A native of Domodossola, Italy, Judge Mainverni completed his law studies at the University of Fribourg, Switzerland, and at the Graduate institute of international studies at the University of Geneva. From 1974 through 2006, he was a Professor of constitutional law and of international law of human rights at the Faculty of Law at the University of Geneva. Before joining the European Court of Human Rights, Judge Malinverni was a Swiss member of the Venice Commission, Council of Europe from 1990 through 2006 and, during part of that period, he was a Member of the United Nations Committee on Economic, Social and Cultural Rights

from 2001 through 2006. He was also a Member of the Consultative Committee of the Framework Convention on the Protection of National Minorities in 2002. From 1982 through 2005, Judge Malinverni acted as a visiting professor at the Universities of Lausanne, Neuchtel, Nice, Paris II and Strasbourg. Dr. Sima Samar is Chairwoman of the Afghanistan Independent Rights Commission. Dr. Samar convened the Commission, which is the first Human Rights Commission in the nations history. Born in Jaghori, Ghazni in Afghanistan in 1957, Dr. Samar received a medical degree in 1982 from Kabul University. She founded the Shuhada Organization, which now operates fifty-five schools in Afghanistan and three schools for Afghan refugees in Quetta, Pakistan. From December 22, 2001 until June 22, 2002, Dr. Samar served as the Deputy Chair and Minister of Womens Affairs for the Interim Administration of Afghanistan. During this Administration, Dr. Samar established the first-ever Afghanistan Ministry of Womens Affairs. Among other accomplishments, the Ministry won the right of women government employees to return to their jobs and to keep their seniority, oversaw the re-entry of girls to schools, launched a womens rights legal department, and opened a school for married girls at the Ministrys headquarters. Dr. Samar has been recognized internationally and awarded numerous awards for her leadership and courage. Additionally, she is the current United Nations Special Rapporteur on the Situation of Human Rights in the Sudan. Yama Torabi is an Afghan national who has studied political science and international relations. He is currently finishing his PhD at Paris-based Institut dEtudes Politiques (Sciences-Po) and is also a research associate with Centre d'Etudes et de Recherces Internationales (CERI). He has extensive experience with development and humanitarian non-governmental organizations. Mr. Torabi founded Integrity Watch Afghanistan where he also worked as a lead researcher on corruption, accountability and transparency. He has been one of the founders of Armanshahr / Open Asia Foundation where he has worked in different capacities and is now Program Director on issues related to transitional justice. Wolfgang Kaleck is a criminal lawyer in Berlin, co-founder and General Secretary of the European Center for Constitutional and Human Rights e.V. (ECCHR). He is lead counsel in several universal jurisdiction and war on terror related cases filed in Germany, including the cases against the Argentine military for murder and torture, and against the then U.S. Secretary of Defense Donald Rumsfeld and others for torture. Phil Shiner is a leading public, environmental and human rights lawyer. Mr. Shiner has acted in some of the most constitutionally significant human rights test cases including the Al Skeini case that questioned whether the Human Rights Act and European Convention on Human Rights applied whilst the UK occupied south east Iraq. He is also active in the Al-Jedda case, in which the House of Lords will determine whether a Security Council resolution can override domestic human rights legislation. Mr. Shiner has also assisted with the Gentle et Al case concerning the rights of the families of soldiers killed in Iraq to an independent enquiry, which would have included examining the legality of the military orders. He has assisted Palestinians in the Hasan case challenge the UK governments policy of continuing to export arms related products to Israel. Mr. Shiner was recognized as the Liberty/Justice Human Rights Lawyer of the Year in 2004 for his work on Iraq and was the Law Societys Solicitor of the Year in 2007. He is an

honorary professor at the Metropolitan University of London and a research fellow at the London School of Economics. He has recently edited a book for Hart publications, published in September 2008, on legal issues arising from the Iraq war and occupation. Franoise J. Hampson is a Professor in the Law Department and Human Rights Centre at the University of Essex in the United Kingdom. She was on the steering committee and group of experts for the International Committee of the Red Cross Study of Customary International Humanitarian Law. From 1998 through 2007, she was the UK-nominated independent expert on the United Nations Sub-Commission on the Promotion and Protection of Human Rights, where her reports included accountability of international personnel in UN-endorsed peace support operations, reservations to human rights treaties and the relationship between international humanitarian law and human rights law. She has frequently represented applicants before the European Court of Human Rights, particularly in cases arising out of emergency or conflict situations. Such cases were brought against Ergi, Akdeniz & others, Issa, against Turkey and Bankovic, and others against the 17 members of NATO party to the ECHR. For this work, she was named, together with her colleague Professor Kevin Boyle, Human Rights Lawyer of the Year in 1998. Pardiss Kebriaei is a Guantnamo Global Justice Initiative staff attorney at the Center for Constitutional Rights (CCR). She provides direct representation to several of CCRs clients at Guantnamo and helps coordinate CCRs network of hundreds of pro bono counsel representing other prisoners. She also focuses on using international human rights mechanisms to bring international pressure to bear on the U.S. government and hold other governments accountable for their role in the violations at Guantnamo. VIA LIVE VIDEOCONFERENCE: Maher Arar is a Syrian-born Canadian who moved to Canada with his family in 1987 and became a Canadian citizen in 1991. He received a Bachelors degree in Computer Engineering from McGill University and a Masters degree in Telecommunications from the Institut National de la Recherche Scientifique. Mr. Arar holds an honorary Doctorate of Letters from Nippising University and is currently pursuing a Doctorate of Electrical Engineering at the University of Ottawa. During his professional career, Mr. Arar worked for various software and wireless startups where he made important technical contributions. Mr. Arar has a patent pending related to multiple antennas technology. On September 26, 2002 while returning home from Tunisia, Mr. Arar had a stop in the JFK airport in New York where he was detained by US officials for 12 days and interrogated about alleged links to al-Qaeda. He was then removed to Syria where he was held in a tiny cell for over ten months before being moved to a different prison. Over this time, he was beaten, tortured, and forced to make a false confession. Through the relentless campaigning of his wife and with the support of human rights organizations, Mr. Arar was returned to Canada in October 2003. He was eventually cleared of all allegations by Mr. Justice Denis OConnor in his report based on the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

In the United States, Mr. Arar sued former Attorney General John Ashcroft, former Deputy Attorney General Larry Ashcroft, FBI Director Robert Mueller, and U.S. immigration officials for his rendition to torture and arbitrary detention and for obstructing his access to court. His case was dismissed primarily on national security grounds in 2006, and a majority of a threejudge Second Circuit Court of Appeals panel affirmed the dismissal on similar grounds. However, the full Second Circuit Court of Appeals (twelve judges) decided on its own to rehear Mr. Arars appeal late last year, and he is still awaits their decision on whether his case can proceed. Mr. Arars persistent and disciplined struggle has garnered him multiple recognitions and awards. TIME magazine chose Mr. Arar as the Canadian Newsmaker of the Year for 2004, and in 2007, the same magazine named him to the TIME 100, its annual listing of 100 most influential people in the world. Mr. Arar was also named The Nation Builder by the Globe and Mail for the year 2006. Some of the awards Mr. Arar received include the Letelier-Moffitt Human Rights award from the Institute of Policy Studies, an award by the Council of Canadians to recognize the unique sacrifices and contributions he made to Canadian society, the CAIRCAN human rights advocacy award and the Reg Robson award by the BCCLA for the substantial and long-lasting contribution to the cause of civil liberties in Canada. Mr. Arar continues to contribute to advancing the causes of human rights and civil liberties in Canada and abroad through his speaking engagements, his financial contributions to various human rights organizations and the active participation on the boards of some of these NGOs. Mr. Arar sits on the honorary council of the Canadian Center for International Justice, a charitable organization working to ensure that people living in Canada who are accused of war crimes, crimes against humanity, genocide and torture are brought to justice.

CONFERENCE PAPER SUBMISSIONS: PANEL # 1: NATOs Changing Roles in the Post-9/11 World
ALAIN JOXE, Study Director at lEcole des Hautes Etudes en Sciences Sociales and Director
of CIRPES, Centre Interdisciplinaire de Recherches sur la Paix et d'Etudes Stratgiques, Paris Extracts from LOTAN et lUnion Europenne au conditionnel futur , by Alain Joxe, Recherches internationales n81, janvier-mars 2008, p. 43-65 La transformation gnrale que les Etats-Unis impulsent dans le monde et donc dans lOTAN est la fois conomique et militaire et s'appuie sur deux mutations combines : la chute de lURSS, qui engendre la fois la fin de la bipolarit militaire et la mondialisation de l'conomie de march ; la rvolution de l'information, qui permet la fois la globalisation de lobservation et du ciblage militaire de haute prcision, et la gestion spculative dlocalise en temps rel des flux conomiques et financiers. Les consquences de ces volutions sur l'espace et le temps de la stratgie sont rvolutionnaires car elles modifient l'identit des acteurs souverains en matire conomique et militaire, et donc en matire politique et sociale. Parmi ces acteurs souverains, les nouveaux tats-nations euroasiatiques surgissent hors de lempire sovitique, accompagns de puissantes maffias internesexternes, dans un galitarisme westphalien ou onusien devenu plus que jamais crmoniel plutt que rel. Et puis leur entre en capitalisme transforme lOTAN : lOrganisation slargit par divers partenariats, sans tre trop regardante sur la dmocratie et va jusqu en accepter non seulement des ex-satellites du Pacte de Varsovie mais des ex rpubliques sovitiques comme membres de plein exe rcice. Dans cet espace qui tend recouvrir le Grand Moyen Orient tel quil est dfini par les Etats Unis (du Maghreb la Chine en passant par le Machrek le Golfe, llIran lAfghanistan le Pakistan et lAsie centrale ex sovitique) lOTAN sest transform, en 18 ans, en un agent de Rforme du Secteur Scuritaire (SSR: Security Sector Reform) plutt quune alliance militaire; son avenir est loin dtre assur, malgr les efforts des Etats-Unis pour exiger de ses membres une contribution effective leurs guerres expditionnaires. Quoi quil en soit, dans ce nouvel univers des possibles, la notion mme dalliance internationale peut paratre obsolte. En effet, on se sert dsormais de lAlliance Atlantique pour dsigner une socit de service grant lextension des normes amricaines la modernisation des armes et des polices et un espace possible de recrutement de forces coalises pour des oprations expditionnaires de divers types. sans rel objectif stratgique commun permanent. Ce flou nest pas un trouble des esprits mais cest leffet organis de la globalisation impriale transcontinentale et des processus, en cours : de privatisation des entreprises et des services publics, et de dnationalisation des actionnariats qui rodent les responsabilits relles des Etats. LAlliance Atlantique reste, sur le papier, une alliance stratgique dfensive, signe en 1949 par des Etats, en pleine reconstruction planifie daprs-guerre,, contre un ennemi (non dsign) mais qui tait lURSS et qui nexiste plus. En matire diplomatique, le papier compte. LOTAN nest que lorganisation militaire de lAlliance des dmocraties de la zone atlantique-nord ; il ny a pas eu de refondation de lAlliance, alors que le monde, depuis soixante ans, a videmment compltement chang de structure, de nature et de culture. Nous accumulons des mots en -ure

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pour rappeler quils sont tous des mots latins au participe futur. La participation une alliance est une aventure politique qui exige une vision commune du futur, ce que lOTAN na plus. Aprs avoir pass en revue la transformation de lOTAN depuis la fin de lURSS, puis sa mtamorphose aprs lattentat des deux tours, on verra ici par quelles voies passe le divorce statutaire entre la dfinition europenne et la dfinition amricaine de la scurit.. Les 27 tats de lUnion Europenne et les 26 tats membres de lOTAN (dont 19 membres de lUnion) nont certes pas un point de vue unique sur lOTAN, sur lEurope et sur la Russie, mais la France et lAllemagne sont certainement dterminantes militairement, avec la Grande Bretagne, et derrire le jeu de rles et les changes de masques qui connotent les politiques europennes possibles, ce qui les unit ventuellement cest limprieuse ncessit de maintenir la paix dans ce qui est devenu un bon voisinage et non pas de replonger dans une configuration de guerre froide. La mtamorphose 2001 2008 : lOTAN n3 contre le terrorisme Lattentat des deux tours et le Sommet de Prague LAlliance atlantique subsistait, mais sans ennemi dsign. Le grand tournant fut le Sommet de Prague de novembre 2002 , tournant provoqu par lattentat des deux tours du 11 septembre 2001. Cest le premier sommet qui a lanc un programme de changements profonds ayant pour objet lintgration des nouveaux membres, lamlioration des capacits oprationnelles et le renforcement de nouveaux partenariats, mais on voit quil na pu le faire quen sappuyant sur lapparition dun nouvel ennemi global, le Terrorisme. Il lui fallut complter le concept dennemi global par linvention dennemis terroristes locaux, prdfinis comme hypostases de lennemi global . Lennemi commun de lalliance ne fut donc redfini, que dix ans aprs la disparition de lURSS; la dsignation du terrorisme comme ennemi commun de lOTAN permettait implicitement dtendre la zone de comptence de certaines fonctions de lOTAN du Moyen Orient lAsie centrale toutefois lacquiescement europen ntait pas lquivalent dun nouveau trait gopolitique, et la solidarit avec les guerres du leader fut limite. La guerre en Afghanistan contre les Taliban, htes de Bin Laden, reut laval de lOTAN et de lONU ; mais en Iraq la guerre fut dcide sur deux mensonges stratgiques laccusation porte contre le rgime de Saddam Hussein dtre complice dAlQaida et de disposer prochainement darmes nuclaires. Nayant pu convaincre que lopinion intrieure et pas les allis, les Etats-Unis sy lancrent unilatralement; enfin l Iran et deux mouvements islamistes de libration le Hamas et le Hezbollah aids par lIran, furent classs ennemis terroristes respectivement dans le Golfe, en Isral et au Liban. LOTAN continue prs 2001, crer des partenariats au Moyen Orient, comme la Istanbul Cooperation Initiative qui adoube quatre petits Etats du Golfe, en 2004, pour une coopration en matire de Security Sector Reform et de contre-terrorisme: Bahrein, Qatar, Koweit et les Emirats Arabes Unis. Pour comprendre une vritable dcadence de lOTAN qui commence alors, malgr son efficacit technique, toujours plus parfaite, il faut admettre que, contrairement au dsir des Etats-Unis, qui sont depuis Bush la recherche (religieuse) dune source unique du Mal absolu, du point de vue europen, il ny a pas, dans ce bas monde un ennemi global. Il ny a pas non plus un ennemi dlocalis unique qui sintitulerait AlQaida ou lIslam intgriste , avec son chef, Bin Laden, Mais une infinit de lieux et de circonstances crent localement ou rgionalement des conditions pour lapparition de groupes arms et de rseaux plus ou moins terroristes. Cette prolifration de 11

troubles nest pas due une contagion , mais des causes globales qui se font communes. Entre centre et priphrie de la socit globale, toutes les chelles, il y a prsence de troubles locaux induits par la rvolution librale et la cration galopante dingalits, et dinjustices aboutissant des situations sociales dsespres et des vocations suicidaire de protestation. LOTAN et en gnral lalliance militaire devenue policire ne peut pas traiter les causes socioconomiques de cette cette configuration. Nous en sommes l, aux abords de lEurope : mme si dans le monde de laprs guerre froide, les dmocraties doivent pouvoir assurer leur dfense et leur scurit, il ny a pas daccord entre les Etats Unis et ses allis europens sur la dfinition des causes du danger, de la menace, de lidentit dun ennemi: Le choix du terrorisme comme ennemi global nest porteur que dune stratgie policire, pas dune stratgie politique conomique et sociale. Cest le PFP, cr dans lide dune coordination des services spcialiss contre les actions terroristes (et non lOTAN) qui labore un plan daction antiterroriste qui sera adopt en 2004. Mais que devient la Force de Riposte de l'OTAN (Nato Response Force), ne lors du sommet de lOTAN de 2002? cest bien une unit militaire multinationale, compose d'lments terrestres, ariens, maritimes et de forces spciales. Des units de diffrents pays y participent en permanence par roulement, ce qui pourrait permettre lOTAN de projeter des troupes sur un thtre de crise dans un dlai de 5 30 jours. La Force de raction rapide n'a t utilise que pour l'aide humanitaire la Nouvelle Orlans ravage par le cyclone Katrina en septembre 2005. Cest un bijou de technicit mais elle nest pas ncessairement adapte une expdition ordinaire, aux guerres de maintien de la paix ou de reconstruction. De plus les units qui y sont affectes, pour entranement et mise aux normes, ne peuvent pas tre affectes aux tches dsignes par le commandement amricain. Il faut une dcision politique de chaque tat contributeur. Les normes amricaines OTAN Stratgies asymtriques et violations des droits de lhomme by Alain Joxe, March 2009 La rintgration dans lOTAN dcide par le gouvernement franais pose des question stratgiques, parce que les guerres en cours soutenues par lOTAN ou tolres par les Etats Unis sont toutes dans des impasses graves et ont t sans cesse loccasion de violations graves des droits de lhommes. On peut penser que ces violations font partie des systmes darmes et des doctrines demploi des forces, dans les guerres asymtriques modernises de lre lectronique. La France sera-t-elle mme dinflchir les doctrines et les normes OTAN en vigueur? ou va-telle seulement prendre sa part dun chec amricain criminogne sans aucun bnfice moral, politique et diplomatique? Rappel des structures communes: lAlliance atlantique et lOTAN Soyons prcis. LAlliance Atlantique (trait de Washington), dont la France est toujours reste membre, est peu contraignante dans les textes, sauf moralement. La sortie de lalliance est un droit aprs un dlai de vingt ans (art. 13). Cest un trait de dfense rgional ; il y a, lorigine, une dlimitation stricte de la solidarit. Solidarit dans le temps : la solidarit est immdiate mais facultative (article 5: en cas dagression contre un des membres... les parties sengagent prendre aussitt ... telle action quelles jugeront ncessaire y compris lusage de la force . Solidarit dans lespace: elle est dlimite au sud, par la ligne du Tropique du Cancer (art. 6),

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ce qui laissa Cuba hors-zone, lors de la crise des fuses russes de 1962; elle est dlimite lest, par la dfinition euro-atlantique de lappartenance; LAlliance ne couvre donc pas lAfghanistan, qui nest ni membre de lAlliance, ni atlantique, ni europen, ni bien entendu lIraq, ni la Georgie. En fait lAlliance concernait laide amricaine la dfense de lEurope en Europe ; pas du tout laide europenne la dfense des Etats Unis dans le Monde. Elle ne concerne plus lpoque actuelle. Elle aurait du tre dissoute leffondrement de lURSS. Mais elle persiste par lorganisation militaire quelle sest donne lOTAN, organisation qui produit chaque instant les conditions de sa survie pratique, du fait quelle reprsente le pouvoir militaire hgmonique des Etats-Unis, tel quil est accept par lEurope. LOTAN napparat dans le trait de Washington (art. 9) que comme un des organismes subsidiaires qui pourraient tre ncessaires lalliance . Comme manation du Conseil Atlantique elle se propose plutt aujourdhui depuis la disparition de lURSS, comme une cooprative de services pour gestion de coalitions ad hoc, sous commandement amricain. lOTAN toutefois ne peut obliger personne participer des actions. LOTAN, comme lAlliance en gnral, ne peut prendre que des dcisions lunanimit ( par consensus ), y compris les dclarations finales des sommets qui rvisent priodiquement les concepts stratgiques de lOrganisation. Le moindre tat membre ayant droit de veto, la soumission aux Etats Unis par lintermdiaire de lOTAN est donc un esclavage volontaire unanime, mais parfois aussi un refus poli dobir. Par exemple le refus de la Turquie daccorder un droit de passage pour envahir lIraq, et le refus de lOTAN de participer directement la guerre dIraq malgr la demande pressante des Etats-Unis, et finalement le statut hsitant et btard que les membres europens ont donn leur aide lentranement des troupes iraquiennes, pour viter quon puisse confondre cette mission de formation avec une participation aux combats. Si lOTAN a pu tre associ lexpdition amricaine dAfghanistan et sa dfinition punitive (riposte lattentat des deux tours) , cest au titre dune mission internationale daide au gouvernement afghan dcide par ONU (rsolution 1386 du Conseil de Scurit) et qui est soutenue par lOTAN. LOTAN dirige donc, sous mandat de lONU, depuis le 20 dcembre 2001, dabord pour six mois, puis par reconductions, une Force internationale d'Assistance la Scurit (FIAS), force internationale atteignant quelque 55.100 soldats en janvier 2009 et qui a pour mission d aider les autorits afghanes exercer et tendre leur pouvoir et leur influence sur la zone de Kaboul , afin de crer les conditions propices la stabilisation et la reconstruction. Cest une mission ONU de peace building et non pas une mission de guerre. Cette tche sest rpandue sur tout le territoire afghan au fur et mesure de lextension des actions anti-coalition. Mais on peut considrer que cette extension de la mission OTAN devient abusive, au cas o elle concerne daider larme afghane dans les zones de combat. Do le dbat : la France, en Afghanistan, est elle en train de participer une guerre amricaine, une mission technique OTAN, ou seulement une mission de reconstruction Onusienne? La rponse prcise ce genre de questions peut devenir impossible dans les conditions o les Talibans et leurs chefs tribaux allis deviennent capables tout instant de porter des coups aux troupes de la coalition et de la FIAS jusque dans les zones fortifies comme la zone verte de Kaboul. Mais cest la situation militaire qui est confuse, pas la question juridique. La FIAS fut la premire action OTAN place clairement en dehors de la zone euratlantique dfinie par le trait de Washington. Son statut OTAN dcoule post factum dune dcision, de principe nonce dans la dclaration du sommet de lOTAN de Prague du 21 novembre 2002 qui 13

a entrin lide que la solidarit, face une attaque contre un membre de lalliance, consiste relever les dfis pour la scurit des forces, des populations et du territoire de nos pays, d'o que ces dfis puissent venir (nous soulignons). La localisation en Afghanistan du dfi, lanc la population amricaine, grce la prsence de Bin Laden chez les Talibans, est donc une interprtation nouvelle de la zone atlantique qui tend ds lors stendre virtuellement au monde entier du fait de la dlocalisation globale de lennemi terroriste et de lubiquit des dispositifs militaires amricains. Sans remettre en cause la notion de zone dapplication du Trait, le Sommet de Prague nonce donc, sous pression amricaine, un concept qui va permettre une interprtation du trait qui souvre sur le hors zone . Elle met fin linterprtation restrictive qui permit de Gaulle de sirriter de la mise en alerte sans consultation des troupes amricaines sur le territoire franais lors du dploiement des fuses russes Cuba doctobre 1962. Cuba tait en effet situ horszone. Cet incident fit partie du dossier qui aboutit en 1966 la sortie de lOTAN1. Provoquer par tous les moyens une solidarit hors-zone fut une transgression de la lettre du trait recherche inlassablement par les Etats Unis, qui agissent toujours comme si lalliance tait un serment de fidlit issu dune procdure coutumire de droit anglosaxon, et qui pouvait voluer par lusage. Son freinage reste une norme europenne de droit romain. Tout en soulignant que lOTAN poursuivra sa contribution la guerre dAfghanistan, le 14 de la dclaration du sommet de Prague a nanmoins insist, conformment la rsolution de lONU, sur le fait que la responsabilit globale dassurer la scurit et le maintien de lordre dans lensemble de lAfghanistan, incombait au peuple afghan lui-mme. Cest dire ni lOTAN ni aux Etats Unis. Quoiquil en soit, lOTAN, en soi, nest donc pas directement lorgane dun asservissement politique. Elle lest en raison de la prpondrance militaire absolue des Etats unis et de leur pratique de la pression hgmonique. Celle ci qui passe surtout par la modernisation de larmement et les doctrines stratgiques la transformation et les normes. Cest ce facteur quon va analyser ici brivement. La prdominance amricaine par les normes de modernisation Le problme gr par lOTAN est bien de donner un contenu militaire prcis lAlliance, mme si elle a perdu sa raison dtre initiale. Travail dEtat major plutt que de commandement oprationnel. On remarque alors que la distinction entre le Trait de lAlliance Atlantique, qui ne varie pas, et le concept stratgique de lOTAN, qui volue, permet, aujourdhui en tout cas, de moduler, sous leadership militaire des Etats Unis, tout ce qui constitue larticulation du politique et du militaire : la simple continuation clausewitzienne entre politique et guerre (der Krieg ist blo eine Fortsetzung der Politik); cest dire la transposition des buts politique en objectifs et moyens de guerre; mais elle module aussi rciproquement: linfluence de larsenal sur les options de guerre. La simple transposition est devenue peut tre double. La prdominance politique et stratgique des Etats Unis sur lOTAN passe donc par la mdiation du niveau technico-militaire, celui des normes amricaines.
1

Cette dcision avait t prises peu peu, mais comme le rappelait Pompidou le 20 avril 1966, dans sa rponse Ren Pleven qui dplorait la dcision de sortie de lOTAN, une des raisons se situait lors de la crise cubaine de 1962, du fait que les Etats Unis avaient mis en tat dalerte nuclaire les forces amricaines dployes sur le territoire franais sans en aviser le gouvernement franais et en dpit du fait que Cuba ntait pas comprise dans la zone de lAtlantique Nord.

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La sortie de lOTAN dcide par de Gaulle, et la cration dune norme franaise de dissuasion nuclaire tait possible sans sortie de lAlliance mais pas sans sortie de lOTAN. Aujourdhui la norme nuclaire dissuadant linvasion, est une question devenu obsolte, comme lide mme dinvasion. Les normes porteuses de grande stratgie paraissent ramenes au rang des tactiques de combat de soldat. Mais cest bien ce niveau que se prcisent les buts de guerre des Etats Unis, leur grande stratgie et leur but politique global; cette mutation accompagne la disparition de lennemi conqurant, localis, auto-dsign, lempire sovitique; il est remplac par le terrorisme , ennemi ubiquitaire et dlocalis. Les nouvelles normes simposent ensuite comme corollaire de la rvolution lectronique, qui met au premier rang des stratgies le ciblage avec prcision en temps rel et le combat urbain. A leffondrement de lURSS, la prpondrance de la modernit amricaine ne passe donc plus par linteraction avec lennemi commun, et lquilibre nuclaire global. Mais elle reste une prpondrance et elle se poursuit tout naturellement comme une modernisation pour des combats dchelle plus modestes. La transformation permanente qui simpose, et que les Etats Unis imposent aux membres de lOTAN, est une transformation par objectifs, dite capacitaire , dlie dun niveau daffrontement rattachable un adversaire dsign, mais construite sur des hypothses de combats virtuels. Les Etats Unis dans cette nouvelle poque psent sur la mise aux normes des appareils militaires des allis de lOTAN au titre dune double logique: linteroprabilit entre contingents nationaux, dans les coalitions, et linterarmit (jointness) croissante, impose par la modernisation du champ de bataille sous leffet de la gestion lectronique de lobservation et du ciblage. Ces deux moteurs de la normalisation peuvent apparatre comme de simples soucis de modernit militaire. Une application de la thorie des systmes. En fait, en cas doprations relles, toujours asymtriques, contre des troubles ou des tats voyous pauvres, on voit bien que la transformation du matriel et du logiciel du combat touche immdiatement aux doctrines demploi des forces doctrine rendues unilatrales par le dsquilibre absolu des forces, et par l mme la transformation sapplique au domaine stratgique, pas seulement au tactique et aussi au but politique ou policier des engagements ventuels, au sens le plus prcis, le plus complexe. Modernisation de la menace de mort et violations des droits de lhomme Dans lasymtrie, lutilisation au combat de la menace de mort, plus ou moins cible, plus ou moins massive, peut tre assimile une menace entranant une probabilit plus ou moins prcise ou massive de crime de guerre ou de crime contre lhumanit, lorsquelle pse sur une population civile, prise au pige dans un territoire en guerre ou partie prenante de la rsistance, dans un territoire occup. Ce sont l les seuls types de guerre auxquels peuvent tre convis les membres de lOTAN dans la configuration de laprs guerre froide. Il est clair par exemple que le bombardement de Gaza est un pur exercice demploi unilatral de diffrent types de feu contre une population dsarme et enrichit ce titre la pense stratgique des guerres asymtriques urbaines. Cette relation stratgique entre les moyens militaires, de plus en plus raffins, et les buts de guerre asymtrique en rponse au terrorisme , on nen parle pas trop, car la dynamique de la modernisation de larmement nest pas un dbat militaire et stratgique pur, mais avant tout une dynamique techno-conomique visant un march scuritaire autant que militaire. Des intrts dentreprises sont en jeu. Le complexe militaire industriel nest pas mort il se transforme chaque gnration techno-scientifique. Cest un moteur de la modernisation industrielle. Le

15

lobby des armements peut avoir intrt favoriser des guerres exprimentales pour des raisons techniques ou conomiques. Les rflexions militaires ne manquent pas sur cette corrlation toujours trouble entre guerre et conomie ; ce sont des commentaires professionnels mais aussi des commentaires thiques et politiques, invitables, car les militaires contrairement aux fabricants darmes, risquent leur vie et ne veulent pas mourir pour rien, ou seulement pour de largent, (ce qui les diffrencie des entreprises de soldats mercenaires cotes en bourse qui fournissent des suppltifs au Pentagone pour oprations bavures . La question d la participation des crimes de guerre dans des expditions nocoloniales Otaniques ou autres est donc un problme concret. La question nest pas simplement davoir obir des ordres donns par un commandement amricain, mais aussi davoir utiliser des mthodes de combat et un arsenal dont les performances militaires et politiques sont devenues douteuses. Freiner toute participation aux expditions no-coloniales asymtriques ? On en est l. On a pu observer dans de nombreux conflits que les risques de bavures ou les violations volontaires des conventions de Genve ou des lgislations humanitaires, ou mme le dclenchement dun gnocide, dpendent toujours des doctrines, des directives, des instructions et surtout des ordres parfois ambigus, donns un moment donn par une hirarchie militaire ou politique dans le cadre dune doctrine demploi asymtrique des forces. Cest ce qui sest pass dans bien des Oprations Extrieures depuis la fin de la guerre froide, en Afrique, dans les Balkans, au Moyen Orient et qui ont parfois gnr des massacres. Si lon veut sinterdire toute violation des droits de lhommes mieux vaut sinterdire la participation aux guerres asymtriques premptives modernes auxquelles prpare la norme OTAN et les exprimentations hors bord des Israliens, comme le bombardement de Gaza. Toute une srie de sources militaires sont parfaitement accessibles (Thories de la guerre urbaine, doctrines demploi des forces, types dentranements, analyses doprations retours dexprience , descriptifs des qualits techniques lis au nouveaux armements) et elles constituent des sources ouvertes, pouvant servir instruire des dossiers sur la prparation ou non dun type de combat, comportant lusage volontaire du crime de guerre, comme action destine asservir une population civile par la terreur. Il existe, en la matire, une cole franaise demploi des forces, dans larme de terre, qui sest reformule (aprs dclassement des recettes des guerres coloniales hrites de Lacheroy), dans lexprience des missions de casques bleus. Sa rflexion sur les missions de paix est trs labore et trs critique de lcole amricaine, telle quelle est pratique depuis 8 ans. Une surveillance des doctrines demploi de la force et des armements disponibles, une tude des normes dorganisation dentranement de commandement devient ncessaire au contrle premptif des crimes de guerre. Il devient ncessaire et il est possible du simple fait que la modernisation constante des systmes militaires nous entrane dune manire trs visible vers des formes nouvelles de guerre urbaine hypertechnique, avec drones armes et vhicules blinds sans pilotes, dans lesquelles la protection de la population civile devient plus difficile que sa prise en otage. LOTAN est en charge de banaliser le plus vite possible chez les allis et les coaliss possible toute cette modernit, sans critique stratgique. Obama nest pas en cause, il a certes annonc un tournant qui va dans le sens dune restauration du respect du droit humanitaire, mais cest tout lappareil militaire amricain qui a t profondment mis en forme pendant les huit annes de 16

prsidence Rpublicaine, et de transformation Rumsfeldienne. Le tournant sera lent. Comme tout systme complexe, il tend continuer agir sur son erre. La violation des droits de lhomme, y compris la torture, autorise pendant huit ans, nest pas seulement un crime, cest aussi un parti stratgique ; elle apparat dans la guerre contre le terrorisme car cette doctrine nie qu lorigine du terrorisme, ont trouve toujours une violation du droit des peuples disposer deux mmes, La guerre asymtrique contre le terrorisme est asymtrique surtout par la domination de lespace arien. Elle est mene, vue den haut, sur le mode semi alatoire propre aux reprsentations sytmiques de lUS Air Force, traitant les peuples comme du btail comportement prvisible. Elle cre la rsistance quelle prtend apaiser et pense avoir un droit non crit de violer les frontires terrestres. Do lapparition dans largot militaire de la guerre AFPAK. La mise sous commandement amricain peut tre une acceptation tacite des normes tactiques et stratgiques et politiques potentiellement criminognes ou bellignes . La vraie question, cest donc la mise en opration de troupes franaises sous commandement amricain dans des zones de dsastre politico militaires dont les Etats Unis ont t seuls responsables. Ils appellent aujourdhui leurs allis laide dans ces zones, non couvertes par lAlliance et sans avoir encore rectifi compltement leurs ambitions politiques et militaires, ni leurs normes, idalisant le systme de systme suppos produire des effets unilatraux sur un adversaire vou lcrasement ou la soumission2, vision de lennemi qui drive dune dfinition policire du maintien de lordre, plutt que dune valuation politique de ladversaire, toujours ncessaire au retour la paix. Cette proccupation concerne lOTAN comme gestionnaire principal de modernisation sans dbat stratgique, mais lOTAN nest pas la cause, mais le moyen. La proccupation sur la violation des droits de lhomme comme lie aux logiciels demploi des nouvelles armes, concerne toutes les expditions en coalitions, quelles soient organises sous commandement ONU ou sous commandement amricain, ou sous commandements multiples comme en Afghanistan, ou en Afrique, ou dans les oprations exprimentales, comme le bombardement de Gaza, lanc avec le consentement de lAdministration Bush. La runification des mthodes policires et militaires de rpression est une tentation scuritaire assume dj par le Livre Blanc Franais sur la Scurit et la Dfense. La reprsentation spanouit en particulier autour de lide technique quil existe un continuum darmements effet ltal croissant. Cette gradation peut tre voque en dissuasion, comme un rhostat, comparable celui de la riposte flexible de la dissuasion nuclaire finissante. Cest un ide plus policire que militaire, dans le sens o, dans lunilatralisme, elle tend exclure la ngociation. La proccupation contre ces drives policires de la guerre urbaine et suburbaine et la banalisation des rgimes dexception doit donc prendre une forme juridique premptive. Avec le dveloppement de la Crise internationale, on a le devoir dviter que le maintien de lordre mondial prenne une dfinition globalement rpressive. La criminalisation des mouvements sociaux ou des mouvements nationaux pourrait devenir le moteur dune mondialisation de la guerre.

Cf. Philippe COQUET, EBO - Oprations bases sur les effets : rationalit et ralit IFRI Centre des tudes de scurit : Focus stratgique , Octobre 2007

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NATO INVOKING ARTICLE 5 ON SEPTEMBER 12, 2001 By Edgar Buckley, Former NATO Assistant Secretary General for Defense Planning and
Operations (1999 to 2003) I was chairing a meeting of NATO's Policy Coordination Group when news of the first plane hitting the World Trade Center came through. The executive secretary passed me a message to this effect. I read it and then read it out loud to the meeting. The US delegates looked shocked and disbelieving. We all were. A few minutes later, the news arrived of the second plane hitting the second tower and I was told that the Secretary General was considering evacuating NATO Headquarters in case similar attacks were planned in Europe. I read this information out as well. Ken Huffman was leading the US team and asked for the floor. He announced that US Ambassador Nick Burns had already decided that US personnel should leave the building. I adjourned the meeting and went to the Secretary General's office. The scene there was one of confusion. There were reports of unidentified or non-responding aircraft flying towards Brussels, though it was not clear how reliable the information was. The decision had indeed been taken to evacuate all non-essential personnel. Should the North Atlantic Council meet and if so where? It was decided that the Ambassadors would meet informally that evening in the Secretary General's office. There would be a formal Council meeting the next day. In the Secretary General's outer office, I met Burns and Canadian Ambassador David Wright. Ambassador Burns was talking of the likely casualty figures - many thousands and probably the largest toll in a single day since the battle of Antietam during the American Civil War. Ambassador Wright, who was also dean of the Council, assured him of the support of all the Allies. "Hell, this is an Alliance," he said. "We've got Article 5." That was the first reference to Article 5 I heard that day and it struck an immediate chord. As Assistant Secretary General for Defence Planning and Operations, I knew we had a job to do, even though no one had asked us. Particularly in an emergency, the Council looks to the Secretary General to provide leadership and proposals. In contrast to many other international organisations, responsibility for drafting documents and resolutions in NATO lies with the International Staff. We needed to prepare the advice and recommendations which the Secretary General would deliver to the Council in the morning. My mind turned to a possible decision sheet or statement. The Secretary General, on his own initiative, had already issued a short condemnation of the attacks, but that was not enough. What could the Council itself add? There was little to guide us. There had been hardly any discussion of terrorism at NATO up to that point. There was no clear policy, as far as I knew, on the use of NATO assets in response to terrorist attacks. There had been no consultation with delegations about what had gone on that day. We had not even discussed the way ahead or options with the Secretary General or his Private Office. There had been no "steer" from any capital. I first raised the possibility of a statement invoking Article 5 at a meeting in Gnter Altenburg's office in the early evening. As Assistant Secretary General for Political Affairs, Gnter would

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also be involved in advising the Secretary General and we needed to be united. I took the text of the Washington Treaty with me. Ted Whiteside, head of NATO's Weapons of Mass Destruction Centre, was also present and questioned whether the attack that day had been "armed": Article 5 contemplated an "armed attack" against any NATO Ally, but was an aircraft a weapon? We also discussed how to distinguish what had happened that day from "normal" terrorism, such as practised by the IRA, ETA or the PKK. The discussion was useful but inconclusive. I went back to my office and called in Holger Pfeiffer, my deputy, and Steve Sturm, head of defence policy. We went through all the issues on our own. We agreed that there had indeed been an armed attack. The aircraft had been used as missiles. As for distinguishing such an attack from "normal" terrorism, we selected two criteria - the scale and external direction. The scale was important, we felt, because the Washington Treaty had been written to deal with threats to peace and security in the North Atlantic area, which implied a high threshold of the use or impact of force. External direction was important because it was clear that the Allies did not regard attacks by internal terrorist organisations - such as in Belfast or Oklahoma City - as falling under the Treaty. There was, of course, another way to distinguish one terrorist attack from another, namely by an ad hoc decision of the North Atlantic Council. If the Allies were to determine that an attack met the criteria for a response under Article 5, that would be conclusive. We quickly satisfied ourselves on these grounds that there was a good case for declaring that the attacks had triggered the Washington Treaty's collective-defence provisions. The next step was to research what supporting policy statements there might be for such a determination in earlier NATO documents and communiqus, because referring to existing agreed language is an important step in facilitating consensus. I asked Steve Sturm to look at the 1999 Washington Summit declaration and Strategic Concept in particular to see what from those documents could be used to strengthen our approach, and to check what other policy statements had been made about terrorism. I also asked him to produce a first draft based on our discussion. An hour later, we met again and went through the draft together. We inserted a conditional "if" clause to deal with the uncertainty over who had directed the attacks: "If it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty." We referred to the condemnation of terrorism by the heads of state and government at the Washington Summit and their statement that they were determined to combat terrorism in accordance with their commitments to one another. We finished our work and had a typed draft ready to present to the Secretary General early the next morning. I went to the Private Office at around 7:30 in the morning with the draft statement in my hand. Lord Robertson was standing in the doorway to his office. I gave it to him and said we had prepared it in case the Council wanted to make the strongest possible statement of its support. He read it, liked it and passed it to Damon Wilson, the US deputy director of the Private Office, with the instruction that it should be sent immediately to the US authorities for their reaction. The Council was due to meet a few hours later. The US response was quick. I subsequently learned that after consulting with his deputy, Toria Nuland, Burns had passed the text to Secretary of State Colin Powell with his recommendation to support it. Powell quickly authorised Burns to do so and in parallel consulted President George W. Bush. By the time the Council met, President Bush had signalled his support too. 19

At the Council, which had a very restricted attendance, all delegations spoke in favour of the strongest possible NATO response and almost all were ready to approve the draft statement, which had been circulated by the Secretary General in advance. A small group of nations asked, however, for legal clarification as to the effect of invoking Article 5. They had two main concerns. First, they wanted to ensure that their sovereign decision-making rights would not be affected as regards the nature, scale and timing of actions deemed necessary to restore peace and security - in other words they wanted it to be clear that each Ally would deem for itself what was "necessary". Second, they wanted to ensure that any collective action taken by the Alliance, for example military action by NATO forces, would not be launched without specific additional consultation and decision in the Council. Confident that these points could be quickly dealt with by NATO's legal adviser, Baldwin De Vidts, the Secretary General adjourned the meeting until later in the day. When the Council reassembled, it did so with De Vidts' reassuring memorandum in front of them. In effect, he concluded that it was up to each Ally to judge for itself what action needed to be taken, although such action should be appropriate to the scale of the attack, the means of each country and the steps necessary to restore peace and security. On the question of collective response, he said it was obvious that collective consultation would be necessary. With these clarifications, and after a short discussion, the Council unanimously agreed the draft statement as circulated. It was issued that evening and, in accordance with the Washington Treaty, Lord Robertson informed UN Secretary General Kofi Annan in parallel. There had been no significant change to the wording of the statement from the time it left my office to the time it was issued less than 16 hours later. How did we feel after the decision was taken? In truth, we were convinced that it was the only right and proper course. We were ready to implement it with the support of all Allies. And we felt just a little elated that the Allies had reacted so promptly. Politically and publicly, NATO's action had a dramatic effect. Lying in bed the next weekend, I heard Alistair Cooke in his Letter from America reflecting on the remarkable heroism of the rescue workers and ordinary citizens caught up in the aftermath of the attacks. It was moving stuff. Then, at the end of his broadcast, he turned unexpectedly to NATO. He said that what the Alliance had done immediately after the attacks was the "one small note in this whole monstrous story that can be called heartening". In the intervening five years, I have heard frequent criticism of the decision to invoke Article 5. I have, for example, heard people say that we were unwise to commit ourselves to a course of action which was not fully implemented and which turned out to be unwanted by the United States. I was present in the Council two weeks after NATO invoked Article 5 when then US Deputy Secretary of Defence Paul Wolfowitz set out his post-9/11 doctrine to the effect that the mission determines the coalition. This was, in my opinion, a fundamental misjudgement about the nature of the Alliance that devalued the importance of strategic solidarity. As a result, I share the frustration of those who believe that the United States could have done more to engage the Alliance in its efforts against the Taliban and al Qaida. However, I reject criticism of the decision to invoke Article 5. Following the lifting of the "if" clause on 2 October, the Allies - collectively and individually - did everything that the United

20

States asked of them and were ready to do more. Moreover, in the intervening years Washington has come increasingly to recognise the importance of NATO and alliances in general and is learning lessons from its experiences in Afghanistan and Iraq. Today, NATO is extremely active in Afghanistan. The United States is more convinced than ever of the need to secure international support for its actions against terrorism. And NATO is transforming its political and military structures and strategies to deal more effectively with the real security threats we face. Such developments would not have been possible had the Allies not stood side by side at the outset of this new security era.

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NATO IN AFGHANISTAN: PROBLEMS OF COMMAND AND CONTROL By Otfried Nassauer, Founding Director of the Berlin Information-Center for Transatlantic
Security (BITS)

NOTE: Work in Progress Preliminary Draft Version Please do not quote The title of this presentation hints to some of the many problems NATO faces at 60. NATO and its operations out of area lack public support if not legitimation. NATO operates in Afghanistan, while much of its public legitimacy rests at home, where the Alliances military capabilities currently are in little demand. Founded for collective defense NATO underwent substantial change as did the Alliances proclaimed major tasks. Changes made, were decided by national political elites, taking care of their national interest, political aims and NATOs need for fresh tasks, justifying the organizations existence. However, the same elites took insufficiently care of both, public understanding and support. At 60 the Alliance not only faces many problems. It has substantial problems as well. They are in part consequences of operating out of area. While back in 1993 Senator Lugar could claim that NATO must go out of area if it does not want to go out of business today one could legitimately ask, whether NATO might go out of business because it went out of area. Most observers attribute a lot of the Alliances problems in Afghanistan to a lack of unity of command. They are right. They see the Alliances efforts endangered by the risk of mission creep. Others foresee political mission creep, too. The alliance is loosing political coherence and over the last eight years has been turned from an organization intending to take collective decisions on collective missions to be conducted collectively under a unified command into an organization, that has been used occasionally to consult before national decisions were taken and coalitions of the willing are formed, which were defined by the missions chosen by a single nation. NATOs problems with command and control exist in two contexts a military but also in a political context. Afghanistan is a good example and it was right from the outset. Before going into detail, let me share an experience: When I agreed to hold this presentation, I had a very simple idea of what I was going to do. I intended to demonstrate that Western operations in Afghanistan have been conducted under circumstances very similar to those making Western military operations in Somalia a failure in 1993. I wanted to show, that in 1993 there was no unified command for UNOSOM-2 and the U.S. national deterrence force operating over the horizon and in theater as well. I wanted to talk about the Mogadishu incident as the moment, in which this lack of unity of command became a major reason for catastrophic failure. I was going to talk about the lessons learned at the time and obviously not applied to Western operations in Afghanistan only 9 years later. I wanted to describe the lack of unity of command in Afghanistan and to demonstrate by example, that the results again could become catastrophic. I was going to show, that the West again is loosing much of its credibility, just because there is neither a unified command nor consistent political guidance, accepted by all who intervened. I thought this could fuel a useful debate.

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NOTE: Work in Progress Preliminary Draft Version Please do not quote However, as soon as I started my research, I detected that even very basic facts necessary to do such a comparison were not available in the public domain. I was pretty sure that I could easily prove from Alliance and US descriptions of the command and control structure, that the lack of unity in command, described by many analysts, indeed existed. However, I found that there are no official documents in the public domain that describe the command and control structure. To quote from the records of the British House of Commons: To ask the Secretary of State for Defense, if he will place in the Library a copy of the latest unclassified ISAF command and control structure, British MP Dr Fox asked on March 18th, 2008. The answer struck as a surprise: There is no unclassified version of the ISAF command and control structure, replied Mr Ainsworth. This incredible measure of lack of transparency left me with only one option: To develop my own unclassified descriptions of the command structure, derived from press clippings and other public documents. I did so and the exercise caused another surprise: I found that there was quite a lot command structures applied over pretty short periods of time. Since 2006/07, when ISAF took over responsibilities for all of Afghanistan, each showed similar problems with the unity of command. None came near to or really worked towards developing a unified command structure. Historically, the concept of unified command no matter whether in national or coalition warfare - has been developed to give a single military commander the authority to apply all necessary means available to him in the most effective manner to ensure success as defined by political authorities in a certain theatre. He reports to the highest political authorities (national or coalition), advises them as to the necessary resources and steps and implements political guidance. Hes the one to be held responsible by political authorities in case of failure and in case of success. The concept ensures that theres only one commander, a single chain of command, limited room for conflict between the armed services branches and national contingents as well as unchallengeable authority with the commander in chief. A quick look at Afghanistan in 2008 shows, that there is no unified command. At least four major (and some minor) military command and control structures apply, which are coordinated to different degrees via liaison relations, if theres luck. ISAF operates under NATO command and reports to SACEUR under political guidance provided by NAC. NATOs Supreme Commander, SACEUR, at the same time is Commander in Chief of US-EUCOM. The US government is represented in the NAC where political guidance for ISAF can be developed. ISAF meanwhile operates in all of Afghanistan under a UN-mandate to help the Afghan government to stabilize and rebuild the country. ISAF has no role in fighting terrorists and only a very limited role in fighting Taliban insurgents. US-Forces in Afghanistan (earlier CFC-A) are partially under CENTCOM command and report to CENTCOM, while being under political guidance from the US president and his Secretary of Defense. Other parts are under SACEUR command and NAC political guidance, since they form part of ISAF. However they and ISAF have to draw much of their critical resources from CENTCOM thus competing with the resources necessary for

23

NOTE: Work in Progress Preliminary Draft Version Please do not quote other CENTCOM operations such as OIF. CENTCOMs US-forces are part of OEF, a US-led coalition effort, primarily tasked to fight both insurgents and Al-Qaida. Their mandate after 8 years is still based on Art. 51 of the UN Charta, i.e. on the right of self defense. US Special Forces operating in Afghanistan come under US-SOCOM command and political control from Washington. They too operate under Art. 51, but not under CENTCOM command. If luck be, theres liaison and coordination. There is no guarantee for SOCOM-CENTCOM coordination. ANA and Afghan Police forces forces are under national Afghan command and control (MoD or MoI), but in almost all cases have been employed under CENTCOM planning and partnerships (huge majority) and in some under ISAF-related partnerships planned by ISAFs nations. CIA units and drones operating in Afghanistan are under Langleys command and receive political guidance from the DNI and the US President. Theres no guarantee for their operations being coordinated with any military command. Its obvious that the structures described do not represent a unified command structure. What are the operational consequences? Some few examples: If ISAF plans an operation requiring critical ISR resources or air support, neither the Commander ISAF nor SACEUR has them fully at hands. Most air force capabilities fall under CENTCOM and must be provided across regional command boundaries. Even European NATO nation air assets deployed in Afghanistan to support ISAF cannot be used without CENTCOMs help and consent, since the CAOC responsible for Afghanistan is a CENTCOM CAOC, in which not even liaison teams of all NATOnations are allowed to operate. The availability of ISR assets too depends on CENTCOM consent. CENTCOM often perceived OIF to be a higher priority than OEF and ISAF and OEF to be a higher priority than ISAF. Afghan ownership and Afghan forces involvement in ISAF operations rhetorically is given high priority. However, since Kandak training entirely felt and still in most cases falls under CENTCOM, ISAF/EUCOM and its regional commands have to plea for Kandak availability or CENTCOM (i.e. US) approval of their own Kandak partnerships. Kandaks in most cases primarily were made available to the US led RC East and US Special Forces. When Canadian forces were deployed to implement the extension of ISAF into Afghanistans South in many cases they were authorized no Kandak support at all. British forces faced similar problems. Even if all actors involved are US, coordination is not always ensured: CENTCOM led OEF forces in many cases were surprised by operations of SOCOM controlled US-forces, suddenly occurring in their area of responsibility, causing numerous civilian Afghan deaths the local US OEF or ISAF forces had to cope with. In the US-led RC East US-forces deployed partially fall under ISAF and partially under OEF. Even more, the commander was carrying a double hat for quite a time. Conducting OEF missions he had to report to CENTCOM, commanding ISAF missions SACEUR was his ultimate superior to report to. Thus in Germany this construct caused concerns, whether recce missions by Tornado aircraft conducted in his AOR under CENTCOMs

24

NOTE: Work in Progress Preliminary Draft Version Please do not quote CAOC coordination could be misused to support OEF missions not authorized by the German parliament. The list could be lengthened by many more examples, but lets have a look at the origins of this situation, which is mainly political. Before doing so, I need to recall a basic. The U.S. president for legal reasons never relinquishes his control over US soldiers. What does that mean in practice? US soldiers can participate in coalition or alliance operations only, if their ultimate commander is a US officer. Thus, a US brigade can become part of a NATO division, commanded by a non-US-NATO-officer, but only, since NATOs top commander SACEUR is a US-general being EUCOM commander at the same time. US-participation in an UN-led peacekeeping operation thus is possible only, if the UN commander is a US-officer. The same is true for coalition operations. To my knowledge, the US is the only country, following such a procedure. So, what were the origins of the lack of unity in command in Afghanistan? They start right before the beginning of Western operations in Afghanistan. NATO decided only one day after 9-11 to invoke article V of the Alliances treaty. The decision was an unusual one, since it was related to a non-state-actor attack, an attack not envisaged when NATOs treaty was written. While the decision undoubtedly was driven by motifs of declaring and showing solidarity with the U.S,, there were other motifs as well. Among them was the expectation, that NATO would take a collective decision on the type of response required and appropriate. In case of a military response, this would have resulted in collective action under SACEURs unified command. However, George W. Bush administration opted for a different way forward. It said Thanks and bypassed NATO, while preferring a US-led coalition of the willing commanded by CENTCOM rather than EUCOM. NATO members were invited to participate on the national level. Only by 2003 NATO itself got a role in Afghanistan, which since has been extended in order to increase non-US-NATO burden sharing via extending NATOs responsibilities step by step from stabilizing the Kabul region to the whole of Afghanistan. Thus NATOs tasks where widened. However, SACEUR did not become a unified commander and the NAC did not get a major role in developing a politico-military strategy for Afghanistan in parallel. These tasks continued to rest with or at least depend on CENTCOM (burdened with the conflicting demands of two wars) and national US decision making occasionally informed by multinational consultations and decisions, such as the Afghanistan Compact. As one of the consequences contributing nations and their parliaments imposed caveats to their military contributions, further complicating the picture. Some of these caveats also reflect additional motifs such as not wanting one owns soldiers to become involved in the treatment of arrested nonmilitary fighters, human rights violations or violations of humanitarian law; not wanting to violate international legal commitments ratified by the nation sending the troops but not by the US; and differences with the US about the right strategy to stabilize and rebuild Afghanistan (also partially reflecting internal public opinion).

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NOTE: Work in Progress Preliminary Draft Version Please do not quote Again, this list could be extended for quite some lines. Can the quagmire be solved in future? Its unlikely. While the Obama administration has authorized an additional 17.000 soldiers to stabilize Afghanistan (and a large influx of problematic PMCs), it is sending these troops under a US-Afghan, not a NATO/ISAF-Afghan SOFA. While we dont yet know the details of the new administrations plan for Afghanistan to be first presented during the NATO summit, this plan will probably not overcome the SACEUR/CENTCOM and other command rivalries, each having political impact. While the new administrations political will to consult and strengthen multilateralism seems obvious, the rifts over the right priorities (hunting down strategic terrorist targets vs. fighting insurgents vs. rebuilding and stabilizing the country) are likely to continue. Finally, a new area of problems is taking shape: Is there and if so which role for SHAPE in Pakistan according to Obamas plan? If so, existing problems could grow substantially.

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A WEB OF SECRETS? NATO AND THE DIFFUSION OF SECRECY RULES By Alasdair Roberts, Jerome L. Rappaport Professor of Law and Public Policy at Suffolk
University Law School, United States Web of Secrets: NATOs Security of Information Policy and the Right to Information In December 2001, the international movement for open government marked a small victory: Romania's new right-to-information statute, the Law Regarding Free Access To Information of Public Interest, came into force. Unfortunately, the victory was short-lived. In April 2002, Romania adopted a new state secrets law that creates a broad authority to withhold information that has been classified as sensitive by government officials. Non-governmental organizations complained about the haste with which the state secrets law was adopted, as well as its drafting. The first version of the law was struck down on procedural grounds by Romania's Constitutional Court in April 2001. A second version, although revised in response to criticisms, still proved objectionable. The International Helsinki Federation said that the law "failed to strike a proper balance" between secrecy and the public's right to know (International Helsinki Federation 2002: 257). Article 19, a freedom of expression advocacy group, said that "incredibly broad" restrictions in the law could "substantially undermine" the new right-to-information statute (Article 19 2002: 2, 8). Romania is not an unusual case. Ten countries in Central and Eastern Europe have adopted right-to-information laws in the last decade -- but eleven have adopted laws to restrict access to information that has been classified as sensitive (Table One). Complaints about undue haste and poor drafting have arisen in several of these countries. The Hungarian Helsinki Committee complained that Hungary's state secrets law, first adopted in 1995, became problematic after the addition of "extremely vague wording" about classification of information in December 1999 (International Helsinki Federation 2000: 185). In Slovakia, protests from non-governmental organizations compelled the Cabinet to withdraw a proposed secrecy law in February 2001 (Grigorescu 2002). A law was eventually adopted in May 2001. Article 19 also complained about "absurdly broad" restrictions in the proposed Bulgarian secrecy law (Article 19 2001). Other critics suggested that the law, eventually adopted in April 2002, might weaken the accountability of the state security service (Buechsenschuetz 2002).3 In May 2002, a cross-party coalition of legislators launched a court challenge, claiming that the law conflicted with Bulgaria's constitutional guarantee of a right to information (Radio Free Europe 2002b). The spread of state secrets laws has also led to strict policies on security clearances. In 1999, Poland's ombudsman questioned the constitutionality of rules in the country's new Classified Information Act that determined which public officials would receive access to sensitive information (International Helsinki Federation 2000: 286; International Helsinki Federation 2001: 240). Polish judges complained about intrusive investigations to determine whether their lifestyles could make them "susceptible to . . . pressure" (Radio Free Europe 2000). Slovakia's the new security agency will review political and religious affiliations, and lifestyles -- including extramarital affairs -- that are thought to create a danger of blackmail (Sobcak 2002). The
3

See also (International Helsinki Federation 2002: 81).

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Associated Press reported that Romania intends to deny clearances to security staff with "antiwestern attitudes" (Associated Press 2002).
TABLE ONE: RIGHT-TO-INFORMATION LAWS AND STATE SECRETS LAWS IN CENTRAL AND EASTERN EUROPE COUNTRY Albania Bulgaria Czech Republic Estonia Hungary NATO STATUS Candidate Candidate 1999 Candidate 1999 ACCESS TO INFORMATION LAW Law on the Right to Information for Official Documents, 1999 Access to Public Information Act, 2000 Law on Free Access to Information, 1999 Public Information Act, 2000 Act on the Protection of Personal Data and Disclosure of Data of Public Interest, 1992 Law on Freedom of Information, 1998 Law on Provision of Information to the Public, 2000 None Act on Access to Information, 2001 Law Regarding Free Access to Information of Public Interest, 2001 Act on Free Access to Information, 2000 None STATE SECRETS LAW Law on Creation and Control of Classified Information, 1999 Classified Information Protection Act, 2002 Protection of Classified Information Act, 1998 State Secrets Act, 1999; amended, 2001 Act on State and Official Secrets, 1995; Amended 1999 Law on State Secrets, 1997 Law on State Secrets, 1995 Not available Classified Information Protection Act, 1999 Law on Protecting Classified Information, 2002 Law on Protection of Classified Information, 2001 Classified Information Act, 2001

Latvia Lithuania Macedonia Poland Romania Slovakia Slovenia

Candidate Candidate Candidate 1999 Candidate Candidate Candidate

Status at November 15, 2002. The main source for this table is (Banisar 2002).

There is a simple explanation for this wave of legislative activity. In 1999, the North Atlantic Treaty Organization (NATO) said that countries that wanted to join the alliance would need to establish "sufficient safeguards and procedures to ensure the security of the most sensitive information as laid down in NATO security policy" (NATO 1999). Central and Eastern European countries have rushed to get legislation in place before NATO's meeting in Prague in November 2002, where decisions on expansion were expected to be made. The sense of urgency was conveyed in a Romanian news report on the legislative debate in April 2002: [On April 3] a certain Colonel Constantin Raicu [of the Romanian Intelligence Service], who is in charge of the protection of state secrets, came down like a storm on the members of the Senate Juridical Commission, telling them: "This morning we have received signals from Brussels indicating that if the bill on classified information is not passed before 16 April, they cannot exclude adopting a critical attitude regarding Romania. We agree with any form -- the colonel 28

added -- but please, pass it as soon as possible, or we will be facing huge problems." The senators . . . grasped the situation very quickly, and they approved the draft bill in the form passed by the Chamber of Deputies (Bucharest Ziua 2002). WHAT IS NATO'S POLICY? Governments throughout Central and Eastern Europe have said that their legislation is tailored to suit NATO requirements.4 However, observers have asked whether governments in the region are using the process of NATO expansion as a pretext for adopting unnecessarily broad laws -or whether NATO's requirements are themselves unduly tilted against transparency. These are reasonable questions, but NATO has done little to provide answers. Its security of information (SOI) policy is not publicly accessible. However, available evidence does suggest that the policy --crafted in the early years of the Cold War -- is unduly tilted toward secrecy. For most of NATO's history, its SOI policy was contained in a document known as CM(55)15(Final), Security within the North Atlantic Treaty Organization. This document had three components. The first and oldest component was a Security Agreement adopted by parties to the North Atlantic Treaty in January 1950. This became Enclosure "A" of C-M(55)15(Final). A second component, first adopted in 1950 but substantially revised over the next five years, outlined detailed security procedures for the protection of NATO classified information. This became Enclosure "C" of C-M(55)15(Final). A third component, adopted for the first time in 1955, had a broader reach. It outlined "basic principles and minimum standards" that were to govern the overall design of national security systems. This affected the handling of all sensitive information, whether provided by NATO or not. This became Enclosure "B" of CM(55)15(Final) (See Table 2). The strictness of NATO's SOI policy may be illustrated by its treatment of the policy itself. Although C-M(55)15(Final) was an unclassified document, NATO refused for decades to make it publicly available. A narrow glimpse of NATO policy may have been provided in 1998, when a revised version of the Security Agreement -- which apparently still constitutes Enclosure A of the policy -- was made publicly available by NATO member states.5 Versions of CM(55)15(Final) adopted before 1964 have also been made available in the NATO Archives.
TABLE TWO: COMPONENTS OF NATO'S SECURITY WITHIN THE NORTH ATLANTIC TREATY ORGANIZATION C-M(55)15(Final) Enclosure "A" Enclosure "B" Security Agreement Basic Principles and Minimum Standards of Security C-M(2002)49 (June 2002) Security Agreement Basic Principles

It is reported that Bulgaria's foreign minister defended the country's proposed state secrets law by saying that NATO experts had described it as one of the best statutes of its type among all NATO applicant countries (Radio Free Europe 2002a). 5 The Canadian Government published the revised agreement, the Agreement between the Parties to the North Atlantic Treaty for the Security of Information, as Canada Treaty Series document 1998/56.

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Enclosure "C" Enclosure "D" Enclosure "E" Enclosure "F"

Security Procedures for Protection of NATO classified information Industrial Security Protection Measures against Terrorist Threats

Personal Security Physical Security Security of Information INFOSEC

Titles for Enclosures "A" to "D" are based on the version of C-M(55)15(Final) issued in July 1964. This title is based on information in Canadian government documents released in response to an Access to Information Act request. Apparently revised in March 2002. INFOSEC relates to the identification and application of security measures to protect information processed, stored or transmitted in communication, information and other electronic systems.

Nevertheless, the complete and current version of C-M(55)15(Final) remained inaccessible. In February 2002, NATO's Security Office refused access to the document, explaining that "NATO unclassified information . . . can only be used for official purposes. Only individuals, bodies or organizations that require it for official NATO purposes may have access to it" (Office of Security 2002: Emphasis in original). NATO also instructed member countries to withhold their copies of C-M(55)15(Final). As a result, requests for the policy made under several national right-to-information laws have been refused. NATO began an overhaul of C-M(55)15(Final) in the late 1990s. The review, guided by an AdHoc Working Group for the Fundamental Review for NATO Security Policy, was completed in early 2002. A revised security policy, now known as C-M(2002)49, was adopted by NATO on June 17, 2002. The Working Group completed its work in secrecy, and the new policy remains unaccessible to the public6, although its outlines can be reconstructed from other sources (Table 2). NATO's reticence means that an assessment of its SOI policy must be largely speculative. Nevertheless it is possible, from archival and other sources, to describe the policy in broad terms. It has five basic features, each designed to ensure a high level of security for information. Breadth. The first of these elements might be called the principle of breadth, although this term is not used in NATO documents. It implies that the policies which a member state adopts regarding security of information should govern all kinds of sensitive information, in all parts of government. It eschews narrower approaches, perhaps limited to information received through NATO, or information held within military or intelligence institutions. The principle is expressed in the 1964 edition of C-M(55)15(Final), which articulates standards for information security that apply to all sectors of government, on the grounds that member states must be assured that each country gives "a common standard of protection . . . to the secrets in which all have a common interest" (NATO 1964: Enc. B, Para. 1). Depth. The next principle underpinning NATO policy is that of depth of coverage, although again the principle is not expressed in this way in NATO documents. The policy errs on the side
6

The existence of the Working Group was acknowledged in Canadian government documents released to the author in response to a request under Canada's Access to Information Act in September 2002. The first public acknowledgement of the existence of the new policy by NATO was made in September 2002: see http://www.shape.nato.int/BUDFIN/UPDATE%20IFIB.htm (October 30, 2002).

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of caution when determining what information should be covered by SOI rules. This is evident in the NATO classification policy, whose lowest category -- RESTRICTED -- applies to information whose relevance to security is negligible. The next highest category -CONFIDENTIAL -- relates to information "the unauthorized disclosure of which would be prejudicial to the interests of NATO"; RESTRICTED information does not need to meet even this test (NATO 1964: Enc. C, Sec. II). (Several CEEC countries have adopted equally broad classifications for the whole of government. Under Czech law, for example, information is classified as RESTRICTED if disclosure would be unfavorable to the Republic7; in Slovenia, information is RESTRICTED if disclosure could harm the activity or performance of tasks of an agency.8) Centralization. A third principle of NATO policy is that of centralization. This has a national and intergovernmental aspect. At the national level, centralization of responsibility and strong coordination are regarded as "the foundations of sound national security" (NATO 1964: Encl. B, Para. 3). Member states are expected to establish a "national security organization" (NSO) that is responsible for the security of NATO information and screening of personnel; for "the collection and recording of intelligence regarding espionage, sabotage and subversion"; and for advice to government on threats to security and appropriate responses (NATO 1964: Encl. B, Para. 3 and Encl. C, Sec. I, Para. 15). The NSO must also have the authority needed to conduct inspections of security arrangements for the protection of NATO information within other departments and agencies, and to investigate and respond to breaches of security (NATO 1964: Encl. C, Sec. I, Para. 15(c) and Sec. IX, Paras. 3-5). This structure is roughly replicated at the intergovernmental level. In 1955 the North Atlantic Council gave its Security Bureau the responsibility for "overall coordination" of security in NATO. The Security Office, as it is now known, advises national authorities on the application of principles and standards, and carries out surveillance of national systems to ensure that NATO information is adequately protected.9 National authorities have an obligation to report possible breaches of security to the NATO office (NATO 1964: Encl. C, Sec. I, Para. 3 and Sec. IX, Para. 4). Controlled distribution. The NATO security policy also invokes two rules that are intended to strictly control the distribution of information. The first of these is "the NEED TO KNOW principle": that individuals should have access to classified information only when they need the information for their work, not "merely because a person occupies a particular position, however senior" (Security Committee 1958: 4, Emphasis in original). This is regarded as a "fundamental principle" of security. Judgments about whether an individual has a "need to know" are made by the originator of the document, or by one of the addressees identified by the originator (NATO 1964: Enc. B, Introduction, Para. 5(d), Sec. VI, Paras. 6-7, and Sec. VIII, Paras. 4-5). The second rule that restricts the distribution of information may be called the principle of originator control. The principle acknowledges the right of member states, and NATO itself, to set firm limits on the distribution of information that is circulated among member states. Such information may not have its classification reduced, or be declassified, without the consent of the
Protection of Classified Information Act, 1998, section 5(5). Classified Information Act, article 13. 9 NATO documents refer to periodic inspections of national systems. "Surveillance" is the term used to describe comparable oversight arrangements in other multilateral agreements, such as the Article IV consultations undertaken by the International Monetary Fund, and the trade policy reviews undertaken by the World Trade Organization.
8 7

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government from which the information originated (NATO 1964: Enc. C, Sec. V; NATO 1998: Article 1). As a consequence, the principle of originator control trumps the "need-to-know" principle, since originators may impose a high level of classification that restricts the number of individuals to whom the document might be referred by an addressee. The principle is even stricter with regard to distribution of documents outside the community of NATO governments. In this case, distribution is absolutely prohibited without consent, even if the information is unclassified. In these circumstances, the information is regarded as "the property of the originator," which retains absolute control over its distribution (NATO 1964: Enc. C, Introduction). Personnel controls. The fifth and final element of the NATO security policy comprises strict rules regarding the selection of individuals who are entitled to view classified information. The precise requirements for personnel screening are not easy to discern. Some of the exact criteria adopted during the Cold War are probably no longer applicable; and some of the criteria used in NATO's early years continue to be withheld.10 The policy relies on a system of "positive vetting," in which individuals who handle sensitive information are subjected to active background investigation before receiving clearance.11 NATO's early policy made clear that decisions could be based on assessments of character and lifestyle, and that the evidentiary burden for denying clearances was low. Individuals were expected to demonstrate "unquestioned loyalty [and] such character, habits, associates and discretion as to cast no doubt upon their trustworthiness" (NATO 1964: Encl. B, Para. 9). Other controls are imposed to control personnel after a clearance has been provided. CM(55)15(Final) stipulated that supervisors should have a duty "of recording and reporting any incidents, associations or habits likely to have a bearing on security." Evidence that created a "reasonable doubt" about loyalty or trustworthiness required the removal of a security clearance (NATO 1964: Enc. B, Paras. 11 and 15). There is also an expectation that "disciplinary action" will be taken against individuals who are responsible for the unauthorized disclosure of information (NATO 1964: Encl. C, Sec. IX, Para. 10), and that there will be clear criminal penalties for unauthorized disclosure.12 CONSTRAINTS ON NATIONAL POLICIES Of course, it is not surprising that NATO -- as an organization whose mission is the promotion of collective security -- should seek to establish strict rules on the handling of sensitive information within the governments of its member states. But there are also special historical reasons that may explain the strictness of NATO's SOI policy. The policy was codified between 1953 and 1955, in the early and hardest years of the Cold War. Military planners played the leading role in defining the policy, sometimes overriding civilian

These appear to be contained in a Confidential Supplement that was added to C-M(55)15(Final) in January, 1961. Archival copies of the Supplement are not accessible, but a sense of its content can be obtained from the Index to CM(55)15(Final). 11 The 1964 policy observes that "fullest practicable use should be made of the technique of background investigation" (NATO 1964: Encl. B, Para. 9). 12 This point is discussed at greater length in (Roberts 2003).

10

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policymakers in other governments who considered that military SOI standards were excessive (Roberts 2003). The policy was also shaped by domestic politics within the United States (Shils 1996: 214; Theoharis 2002). The anti-communist crusade reached its zenith in 1954, with Senator Joseph McCarthy's hearings into alleged Communist subversion in the U.S. Army, and the hearings that led to the revocation of the security clearance of J. Robert Oppenheimer, former director of the Manhattan Project, because of "fundamental defects in his 'character'" (Polenberg 2002: 380). The Eisenhower Administration was determined to avoid the criticism over internal security that had undermined President Truman's 1952 election campaign, and had boasted in January 1954 that new loyalty rules had already resulted in the dismissal of over two thousand federal employees (Rovere 1959: 17-18). This preoccupation with internal securitywas reflected in the American government's approach to the adoption of NATO policy in 1954-55. The difficulties created by the exportation of demanding SOI rules was evident to other NATO governments. For several years after the establishment of NATO in 1948, the British government resisted American pressure to adopt positive vetting procedures like those contained in the domestic "loyalty program" introduced by the Truman administration in 1947. Many British policymakers found American methods severe and distasteful, and doubted their effectiveness. They preferred a less comprehensive system -- "negative vetting" -- combined with stricter criminal sanctions for unauthorized disclosure of information. The disagreement meant that rules on positive vetting were not included in early versions of NATO's SOI policy. However, the British government capitulated in 1952. Its position had been undermined by the Burgess and McLean defections, and the American government had made clear that positive vetting was essential if the British government expected to receive information on the development and deployment of nuclear weapons.13 The British government affirmed its commitment to a screening process that searched for evidence of character defects or "loose living" that might make individuals susceptible to pressure. It conceded that the new policy was "alien to our traditional practices," but argued that individual rights had to be subordinated to the need for state security (United Kingdom 1957). NATO's archival records show that other concerns were expressed as C-M(55)15(Final) was prepared for adoption. The Canadian government feared that the new policy might give the NATO Security Bureau an inappropriate role in shaping national security policies (Canada 1955; NATO 1955). The Danish government expressed its concern about the breadth of the new policy, suggesting it overreached by attempting to set rules on the handling of non-NATO information. The Italian government suggested that the breadth of policy might create "difficulties of a constitutional nature" (Security Committee 1955: 1). Nevertheless, the scope of the policy was not changed. Similarly, complaints about the depth of the new policy were aired but defeated. In January 1955, the Norwegian government proposed that the classification system should be simplified by eliminating the lowest security grading for information, RESTRICTED (Security Committee 1955). It argued that the definition of the RESTRICTED category and rules governing the use of RESTRICTED information "were so vague that they might lead to confusion instead of contributing to overall NATO security." A majority of other nations disagreed, and "for the sake
On the evolution of British policy, and American pressure to adopt positive vetting, see (Gowing 1974: Vol. 1; Vincent 1998: 204; Aldrich 2002).
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of unity" Norway withdrew its proposal (North Atlantic Council 1955). In October 1957, the Danish government once again proposed a simplification of the grading system, which it said encouraged over-classification (NATO 1957; Denmark 1958). Again, a majority of other countries vetoed the proposal. The record of the July 1958 meeting of the Security Committee at which the Danish proposal was rejected is still withheld by NATO.14 Because of NATO's unwillingness to release internal documents produced after 1964, it is impossible to know how the debate over SOI policy continued in later years. But it seems certain that there must have been further contention over the policy. One reason would be the diffusion of right-to-information laws among NATO member states. Before 1966, no NATO state had a right-to-information law; by 2001, sixteen of the nineteen states had adopted such statutes.15 These laws are typically founded on principles that are completely at odds with the restrictive rules on dissemination of information contained within NATO policy. The tension between international obligations and domestic expectations is sometimes evident in debates over national right-to-information laws. For example, the British government was careful to accommodate the principle of originator control, a basic feature of NATO SOI policy, within its proposed Freedom of Information Act of 1999.16 The non-governmental Campaign for Freedom of Information criticized this as one of several "indiscriminate" exemptions that would allow the withholding of "harmless information" (Campaign for Freedom of Information 2000), but the government opposed attempts to remove the provision (House of Lords 2000). Similar complaints were made against the comparable provision in the proposed Scottish freedom of information bill17; however, the Scottish Executive was also explicitly constrained -- by the agreement governing the delegation of power to Scotland from the United Kingdom -- to respect the terms of C-M(55)15(Final), and the provision remained intact (Scottish Executive 2000). The Canadian government has also resisted efforts to weaken the originator control rule contained in its 1982 Access to Information Act. In 2002, it argued that any weakening of this provision would "set Canada apart from its key allies" (Access to Information Review Task Force 2002: 51). In fact, the government recently amended the 1982 law so that it would be allowed to eliminate a right of appeal against its decisions to withhold information received from allies.18 Internal memoranda suggest that the highly contentious amendment was the product of bureaucratic frustration with requests for information that were governed by rules such as those in NATO's SOI policy (Roberts 2002). Similarly, NATO policy has had a controversial impact on the access to information policy of the European Union. The EU adopted its first code on access to documents in December 1993. However, the code was substantially revised in August 2000. A large number of classified documents were wholly excluded from the code on access of documents, and the Council's
14

The withheld document is NATO AC/35-R/23, the summary record of the meeting of the NATO Security Committee held on July 16-17, 1958. A working group on the control of the volume of classified documents in NATO agencies had earlier reported that a majority of its members opposed the Danish proposal (NATO 1958). 15 The first law was adopted by the United States in 1966. Today, the three exceptions were Germany, Luxembourg and Turkey. 16 The originator rule is preserved in section 27(3) of the Freedom of Information Act, 2000. 17 The rule is not preserved in section 32 of the Freedom of Information (Scotland) Act, 2002. 18 The new restrictions were contained in the Anti-Terrorism Act adopted in December 2001. The minister responsible justified the restrictions by telling Parliament that "our allies . . . will not provide us with information . . . unless we can provide them with a guarantee of confidentiality." Hon. Anne McLellan, Minister of Justice, Hansard, October 17, 2001.

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discretion to withhold other documents relating to security matters was broadened (Council of the European Union 2000a). At the same time, the Council hardened its policy on control of classified information (Council of the European Union 2000b). Many observers were shocked by these changes, protesting that the Council had executed a "summertime coup" against transparency (Bunyan 2002: Chapter 6). However, the Council's decisions proved to be prerequisites for a cooperation agreement with NATO signed in July 2000, in which the Council agreed to comply with the requirement s of C-M(55)15(Final).19 The spirit of the August 2000 amendments was carried forward into a new regulation governing access to information held by EU institutions adopted in May 2001. Under the new regulation, national governments and institutions such as NATO retain the right to veto disclosure of classified information relating to public security or defense which they have provided to the EU. The classification policy of the authoring institution, rather than that of the EU, will determine whether documents are subject to the rule of originator control (European Union 2001: Art. 9). These arrangements were unpopular among advocates of transparency but clearly consistent with NATO requirements. The impact of EU-NATO cooperation expanded in March 2001, when new security regulations governing EU classified information were approved by the Council. The regulations replicate NATO SOI rules. The span of these regulations is not limited to EU institutions: member states also have an obligation to adopt "appropriate national measures" to ensure that the Council's rules on the handling of classified information are respected within their governments (Council of the European Union 2001: Preamble and Article 2).20 This imposes another constraint on the transparency policies of the fifteen EU member states -- and on the policies of those Central and Eastern European states that hope to join the European Union at its December 2002 summit.21 WEB OF SECRETS It can now be seen that the controversies over new state secrets laws in Central and Eastern Europe are not unusual. Rather, they may be part of a decades-long process through which the national policies of NATO member states, and allied institutions such as the European Union, have been reshaped to conform to NATO's SOI requirements. This process of policy rationalization is deeply problematic. In some respects, NATO's SOI policy does not appear to strike a reasonable balance between security concerns and other critical considerations, such as the need to ensure accountability through a right of access to government documents.22 Rather, NATO policy appears to perpetuate an approach forged in the hardest
The EU's letter of agreement with NATO was released in February 2002 in response to a right-to-information request by Swedish researcher Ulf berg -- with the specific reference to NATO's security policy carefully excised. (The Secretary General of the EU, Javier Solana, is also a former Secretary General of NATO.) 20 The European Parliament has challenged the security regulations before the European Court of Justice. The European Commission also adopted the same security regulations on November 29, 2001: Decision 2001/844/EC, ECSC, Euratom. 21 These are Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia. 22 Article 19, the Global Campaign for Free Expression, convened a group of experts in 1995 to develop principles on the appropriate balance between national security and transparency. NATO's policy seems to violate several of the practices that are condemned by the so-called "Johannesburg Principles": the categorical denial of public access
19

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years of the Cold War, when citizens had more modest expectations regarding governmental transparency. Of course, this may be a mistaken view of NATO's current policy. It is difficult to be sure when the policy itself is inaccessible. Two conclusions should be drawn from this discussion. The first is the need to be chary of claims about advances in government transparency over the last decade. It is true that the number of right-to-information laws has increased substantially over the last decade.23 Slow but significant reforms at major international institutions24 might seem to suggest that intergovernmental organizations are also recognizing an obligation to conform to standards of transparency comparable to those imposed on national governments. These are important advances; however, we must weigh against them the impact of processes of defense and intelligence integration. The drive to promote collective security has produced a thickening web of intergovernmental commitments on the handling of sensitive information, that entrench norms that are hostile to the principle of governmental transparency. The experience of CEE countries with NATO policy also reminds us of a larger point: the need to ensure an appropriate balance between security concerns and democratic accountability. No one can dispute that the preservation of secrets is sometimes essential to national security. But at the same time, such secrecy compromises the capacity of citizens to monitor and control the actions of their governments. The best response to this dilemma, Dennis Thompson has argued, is to ensure that there is proper public discussion of the rules that determine when secrets shall be kept. "Secrecy is justifiable," Thompson says, "only if it is actually justified in a process that itself is not secret. First-order secrecy (in a process or about a policy) requires second-order publicity (about the decision to make the process or policy secret)" (Thompson 1999: 185). NATO's SOI policy flouts this basic principle of accountability. The rights of citizens in NATO member states are clearly affected by NATO rules. NATO requirements constrain their right to government documents, and their ability to obtain security clearances and government employment. Nevertheless the policy -- even though unclassified -- remains inaccessible to citizens. Nor are citizens able to participate in, or observe the processes by which the content of this policy is determined. Indeed, they are not even informed when the policy is subject to revision, as it was during the last few years. This is an indefensible level of secretiveness. The habit of secrecy which has driven NATO's conduct should be broken, and the key elements of its SOI policy should be laid open for public review.

to information, regardless of importance (Principle 12); punishment for disclosure of information, without regard to harm or benefit from disclosure (Principle 15); and denial of employment because of opinion or beliefs; or denial of due process in removal (Principles 5 and 20) (Coliver, Hoffman et al. 1999: 1-10). 23 Eighteen countries had national right-to-information laws in 1992; 49 countries had such laws in 2002 (Banisar 2002). 24 Such as the World Bank, the International Monetary Fund, and the World Trade Organization.

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PANEL # 2: The Place of Human Rights and the Role of NATO in the Context of the War on Terror
USE OF A NATO FRAMEWORK FOR RENDITIONS AND SECRET DETENTIONS OPERATIONS IN THE WAR ON TERROR Gavin Simpson, Human rights lawyer and investigator with One World Research, New York
Excerpt from the 2007 report for the Council of Europe Parliamentary Assembly by Senator Dick Marty (Switzerland), "Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report", CoE Doc. 11302 rev, 11 June 2007, pp. 16-23. (Please note that endnotes were removed in the extract below) II. Secret detentions in Council of Europe member states i. The framework a. Securing CIA clandestine operations overseas on the platform of the North Atlantic Treaty Organisation (NATO) 72. By enacting an extraordinary authorisation for CIA covert action through a Presidential Finding within national law, the Bush Administration furnished the Agency with the first half of the operational framework it required to spearhead the United States global war on terror.29 To recap, the key elements of this authorisation were permissions that were as broad as possible, and protections (from interference and oversight) that were as robust as possible. 73. The second half of the equation was then to identify the means by which to integrate the key elements of US national policy into an international, intergovernmental approach. 74. According to our sources, the CIA simply could not embark upon sensitive covert action to dismantle terrorist networks and kill, capture or detain their members overseas without the express knowledge and approval of key US allies particularly European allies: we wouldnt have even dreamed of it.30 On the contrary, the CIA depended on the US Government to secure equally broad permissions and equally robust protections from its foreign allies and their respective intelligence agencies as the ones that had been granted at home. 75. The need for unprecedented permissions, according to our sources, arose directly from the CIAs resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades. 76. One former senior CIA official told us that administration officials approached multilateral negotiations like they wanted to raise [the CIA]s status up to a kind of super military-civilian Agency. Specifically the US Government set out to achieve permissions from as many allied countries as possible that would allow CIA agents to collaborate directly with foreign military 37

officials, operate on a no-questions asked basis at military installations, and travel free from inspection in military or civilian vehicles and aircraft. 77. In relation to the last point, as I discussed in my report last year,31 the lines between civilian and military classifications in the aviation world were about to become incredibly blurred. Conventional legal understandings of civilian and state flights32 were about to be fundamentally challenged, or at least the latitude in those definitions exploited to its maximum potential. 78. The US Governments post-9/11 detainee transfer operations would frequently make use of practices that were previously considered anomalies,33 such as: civilian aircraft landing on state duty at military airfields; military cargo planes registered under civilian operators; and civilian agents and contractors travelling on military travel orders. The CIAs expanding and evolving rendition programme, which would ultimately also be used for the transportation of High-Value Detainees, required cover that would encompass all of these anomalies and more. 79. In terms of protections, the US Government insisted on the most stringent levels of physical security for its personnel, as well as secrecy and security of information during the operations the CIA would carry out in other countries. 80. Reflecting on what our sources have described in this regard, I consider that the stated US policy has, in fact, on the pretext of guaranteeing security, intentionally created a framework enabling it to evade all accountability. We have been told that the US Government sought a means of insulating the CIAs activities (and those of its partner intelligence agencies) from conventional democratic controls in the foreign countries it operated in, not to mention from what it saw as any unsavoury disputes over jurisdictional issues. 81. Yet in my view, checks and balances through national parliamentary and judicial oversight, as well as accepted international laws governing territorial sovereignty, are the very foundations upon which our systems of democratic accountability are built. In times of crisis, such as the immediate aftermath of the 9/11 attacks, these foundations must be strengthened by demonstrations of collective resolve, not weakened by acts of unilateral brinkmanship. 82. It is now clear to me that as they went to their international allies with their proposals, the United States insisted non-officially but explicitly upon a clear set of unilateral prerogatives: only American officials would choose exactly who they wanted to work with; only US policies would define exactly the terms of the relationship; and only US interpretations of the applicable law (including whether or not it applied) would be held to bind its actions overseas. 83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIAs key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO). b. Invocation of Article V of the North Atlantic Treaty

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84. It should be recalled that the United States turned to the international community at an unprecedented moment in history. As a prominent US Congressman remarked recently, in the wake of the horrific attack on the United States on September 11th [2001], we were moved by the extraordinary support and the outpouring of sympathy from across the globe.34 These sentiments manifested themselves in a unique and almost universally shared conviction that the United States should be granted strong support for its international counter-terrorist efforts, including for the use of military force. 85. This conviction was most pronounced within the NATO Alliance. On 12 September 2001, NATO thereby invoked the principle of collective defence according to Article 5 of the North Atlantic Treaty,35 and this for the first time in its 52-year existence. Initially, the invocation was considered provisional because it began with a conditional clause: If it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty.36 86. During the weeks that followed, several of the most senior officials in the Bush Administration delivered a series of classified briefings for the NATO members presenting evidence that Al Qaeda had planned and executed the attacks37 and outlining their intended response. There is evidence in the following excerpt from an account by a then NATO Assistant Secretary-General that some of the United States unilateral prerogatives described by our sources were articulated in quite explicit terms during these briefings: I was present in the [North Atlantic] Council two weeks after NATO invoked Article 5 when then US Deputy Secretary of Defence Paul Wolfowitz set out his post-9/11 doctrine to the effect that the mission determines the coalition. This was, in my opinion, a fundamental misjudgement about the nature of the Alliance that devalued the importance of strategic solidarity.38 87. The US Administrations briefings had their desired effect of lifting the conditional clause in the North Atlantic Councils original statement. On 2 October 2001, the NATO Allies declared their unanimous assessment that the 9/11 attacks had been directed against the United States from abroad and that Article 5 was therefore activated.39 88. Collective measures in the context of a military intervention in Afghanistan were widely anticipated indeed, as one study noted, many NATO members hoped that invoking Article 5 would lead the United States to conduct any military response against Al Qaeda under the NATO flag, or at least co-ordinate its actions with the integrated military structure and political institutions.40 89. However, the expected mobilisation of NATO forces for a multilateral action in Afghanistan never materialised. In fact, NATO support in the conventional military sense was neither an automatic consequence in the invocation of Article 541 nor, as our sources have confirmed, what the US Government was looking for.42 It is precisely upon this unexpected dynamic that my

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finding regarding the development of CIA clandestine operations under the NATO framework hinges. 90. There was a critical, almost paradoxical policy choice in the US Governments stance towards the NATO alliance in early October 2001. The invocation of Article 5 could have been developed43 as a basis upon which to conduct a military campaign of a conventional nature, deploying Army, Navy and Air Force troops in a joint NATO operation. Instead it became a platform from which the United States obtained the essential permissions and protections it required to launch CIA covert action in the war on terror. c. NATO authorisations for US operations in the war on terror 91. The key date in terms of the NATO framework is 4 October 2001, when the NATO Allies met in a session of the North Atlantic Council to consider a set of concrete proposals from the United States. In a press statement after the session,44 NATO Secretary-General Lord Robertson announced that the Allies had agreed today at the request of the United States to take eight measures, individually and collectively, to expand the options available in the campaign against terrorism.45 The eight specific measures agreed to46 were as follows: Enhance intelligence-sharing and co-operation, both bilaterally and in the appropriate NATO bodies, relating to the threats posed by terrorism and the actions to be taken against it Assist states subject to increased terrorist threats as a result of their support for the campaign against terrorism Provide increased security for US and other allied facilities on NATO territory Backfill selected Allied assets in NATOs area of responsibility that are redeployed in support of counterterrorism operations Provide blanket overflight clearances for the United States and other Allies aircraft for military flights related to operations against terrorism Provide access to ports and airfields on NATO territory, including for refuelling, for United States and other Allies for operations against terrorism Deploy elements of the NATO Standing Naval Forces to the eastern Mediterranean, if called upon Deploy elements of NATO Airborne Early Warning Force to support operations against terrorism, if called upon.

92. The first criterion on which these measures were extraordinary was in the nature of their conception. According to a former senior NATO official, in contrast to many other international organisations, responsibility for drafting documents and resolutions in NATO lies with the International Staff.47 Yet as Lord Robertson reiterated in his statement, these measures were requested by the United States following the determination that the 11 September attack was directed from abroad.48 Indeed, as our American sources told us, even the exact language in which the actual measures were formulated and agreed upon was conceived, drafted, re-drafted and put forward unilaterally by the United States.

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93. Second and most significant, these measures do not constitute an agreement to undertake collective self-defence.49 In my analysis these measures more closely comprise the very permissions and protections the United States had sought for itself as it embarked on its own military, paramilitary and intelligence-led counterterrorism operations.50 Just as President Bush had done on 17 September 2001, the NATO Allies, on 4 October 2001, afforded the CIA a mandate to pursue its war on terror, without a published text. 94. Council of Europe officials attempted to obtain a copy of the agreement of 4 October 2001 from NATO Legal Services on several occasions.51 In a response dated 6 April 2006,52 NATOs Legal Advisor, Mr Baldwin De Vidts, submitted that the agreement in question was actually more properly characterised as a set of decisions taken by the North Atlantic Council on that date; he explained: It is to be noted that your request does not relate to a formal document signed by the member States but to an internal decision noted in a corresponding decision sheet drawn up by the International Secretariat to reflect the decisions as taken by the Council on that date. 95. In the same letter, Mr De Vidts stated that in principle, such documents are not made public, which is certainly the case if they are classified.53 In a subsequent follow-up letter sent on my behalf, I indicated to NATO Legal Services, in accordance with my authorisation as AS/Jur Rapporteur, that I would be prepared to treat the document in a confidential manner.54 However, Mr De Vidts replied in the following terms: I can only but confirm that the decision sheet of the North Atlantic Council dated 4 October 2001 is a classified document. I have to state that in order to have access to NATO classified information, such person should have an appropriate security clearance.55 96. Notwithstanding this general rule, which I understand to be a reflection of broader issues around transparency within NATO,56 there was a further noteworthy feature of the 4 October 2001 measures to emerge from our correspondence with NATO Legal Services. Qualifying his earlier point, Mr De Vidts stated: However, with regard to certain decisions separate communications to the public in general are made. This has also been the case for some of the decisions taken on 4 October 2001 by the North Atlantic Council (emphasis added) 97. The clear indication here is that the public record57 is not a complete reflection of the measures agreed by the NATO Allies and the considerations underpinning them. It is my conclusion, again confirmed by my American sources, that there were additional components to the NATO authorisation of 4 October 2001 that have remained secret. 98. In the course of my inquiry, I have made repeated requests for information regarding the full scope of the NATO authorisation, specific elements of its practical application, and whether its provisions remain in force to the present day. Regrettably, NATO itself has been largely unresponsive to my requests.58

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99. Nevertheless, my further analysis of the NATO framework has shown that the authorisations of 4 October 2001 were vital in paving the way for the United States to develop its most important partnerships in the context of the war on terror. In particular, the CIA would exploit both the blanket overflight clearances and the access to airfields to carry out its clandestine operations through the airspace and on the territory of a broad range of foreign states. 100. The blanket overflight clearances granted in this regard were especially significant. In the NATO public statement, the clearances were said to apply to military flights related to operations against terrorism but, even without sight of the classified parts of the authorisation, this characterisation is misleadingly narrow. 101. Military flights is a term relating to the function of the flight, not the type of aircraft used. In international aviation law, the status of an aircraft is determined by the function it is performing at any given time59 - and flights performing military functions would necessarily fall into the category of state aircraft.60 102. State aircraft enjoy precisely the type of immunity from the jurisdiction of other states that the US Government sought to achieve for aircraft operating on behalf of the CIA: they cannot be boarded, searched or inspected by foreign authorities, including host States authorities.61 The conventional constraint on state aircraft is that they are usually not permitted to fly over or land in foreign sovereign territory otherwise than with express authorisation of the State concerned.62 However, with blanket overflight clearances under the NATO framework this constraint could be conveniently circumvented.63 103. Similarly, the provision of access to airfields for operations against terrorism secured landing rights at military bases and dual military-civilian airfields for aircraft operating on behalf of the CIA under a NATO cover.64 104. Accordingly there would be two prerequisites for CIA clandestine operations to fulfil in order to remain within the NATO framework. The first would be to ensure that the aircraft used in such operations were, in their function, designated as military flights or state flights. The second would depend on the state whose airspace or territory was at issue having agreed to the terms of the blanket NATO authorisations of 4 October 2001. 105. It is therefore all the more pertinent to note that the range of countries who agreed to these authorisations in the context of the US war on terror extended well beyond the NATO member states, into a total of as many as 40 countries.65 One year after the NATO authorisations, the United States Government declared: Our Allies have delivered on that [Article 5] obligation with concrete actions, both individually and collectively: all 18 NATO Allies66 and the 9 NATO aspirants67 have provided blanket overflight rights, ports / bases access, refuelling assistance, and increased law-enforcement co-operation.68 d. The wider NATO system and the war on terror 106. Aside from the specific authorisations detailed above, the wider NATO system comprises further important elements that have been developed as part of the post-9/11 framework for CIA

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clandestine operations including the High-Value Detainee Programme. I intend to examine these elements in the following section as they have been applied to specific countries with which the United States has agreed bilateral arrangements in the course of the war on terror. For now it suffices to acknowledge the general NATO multilateral treaties or policies on which those arrangements are based. 107. First is the system of NATO SOFAs (Status of Forces Agreements), which define the legal status of one states armed forces on the territory of another state. The general rules of such relationships are set out in the multilateral SOFA for all NATO members,69 the provisions of which also apply to aspirant states through their participation in the Partnership for Peace70. 108. A state does not abandon its sovereignty when it signs a SOFA; on the contrary, SOFAs usually reflect different sets of legal rights and responsibilities that accrue for both the sending state and the host state.71 The majority of SOFAs are agreed on the bilateral level and are sometimes complemented by further, more finite defence agreements that cover foreign forces stationed at particular bases or facilities. Several CoE member states have acknowledged the applicability of SOFA-type agreements to their relationships with the United States in the context of the war on terror.72 109. An additional relevant element of the wider NATO system is its secrecy and security-ofinformation regime. The NATO Security Policy73 and its supporting Directive on the Security of Information74 are among the most formidable barriers to disclosure of information that one might ever come across. It is easy to understand why an institution or state agency wishing to carry out clandestine operations would opt to bring them under the protections of the NATO model. 110. In addition to its own rules, NATO insists that strict regimes protecting classified information exist on a national level. The Membership Action Plan of 1999 implored the NATO aspirants specifically, nine countries in Central and Eastern Europe to introduce sufficient safeguards and procedures to ensure the security of the most sensitive information as laid down in the NATO security policy.75 Indeed commentators have rightly raised concern around the stringent rules on state secrecy that several countries have introduced as part of their accession to NATO76 and, particularly, whether NATOs requirements are unduly biased against transparency [and] tilted toward secrecy to an unwarranted degree.77 It seems natural that such a security of information regime suited the purposes of the CIA. 111. Finally, with regard to the particular scope of my inquiry, it is apt to point out that NATO Allies and Partners have also developed various forms of co-operation in the realms of Air Defence and Air Traffic Management.78 Inevitably these initiatives have developed new dimensions and complexities in the worlds of civil and military aviation, some of which may not yet be properly regulated and may permit unlawful clandestine operations using aircraft to pass under the radar. In the course of analysing my database of aircraft movements, I have also noted that NATO has established a co-operation with Eurocontrol, which aims at developing civil-military air traffic procedures in the light of the new security environment.79

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VOICES FROM THE GROUND: NATOS ROLE IN AFGHANISTAN By Dr. Sima Samar, Chairwoman of the Afghanistan Independent Human Rights
Commission, former Minister of Womens Affairs for the Interim Administration of Afghanistan Nearly eight years ago, when the NATO forces landed in Kabul under the mandate of International Security Assistant Forces (ISAF) to Afghanistan, almost every single Afghan was in no doubt but to believe that they had passed the nightmare of a dark era of atrocities and widespread human rights violations. The establishment of interim administration, the convention of emergency Loya Jirga and subsequently the holding of two presidential- and parliamentary elections were the promising events that maintained the Afghans hope for a prosperous life, full of dignity and respect for human rights. Unfortunately, it did not last too long for Afghans to realize that they had been overoptimistic and hasty to conclude that the dark days were over. Slowly but steadily, the security situations deteriorated; the government however, elected, did not deliver the services and protection that the people expected. The international and progovernment forces once perceived as the guardian and life savior. Started to lose the confidence of the people , as the night raiding of houses and villages and arrest of the people started .Human Rights once the main topic of every events of NATO and government of Afghan forces, overshadowed by the need of tactical focus on winning the war. Alliance with warlords, nurturing of local militia and support to the unofficial structures, inflicted an unintended harm to the human rights cause in the country. Now, after almost eight years of NATO presence in Afghanistan, the outcome for the promotion and protection of human rights, though much better than the dark days of Taliban, but did not satisfy the people in Afghanistan. Nevertheless, the NATO presence in Afghanistan is a need for a minimum level of rule of law, functioning and responsive government and national and international institutions. NATO not only has helped the country to became safer than before, but also it has taken part in many humanitarian relieve, building infrastructures and helping needy people. With acknowledging the need for NATO presence in Afghanistan and its role in building Afghanistan future and subsequently high degree of respect for human rights, I want to touch on some issues that I believe have had unintended consequences with adverse impact on promotion and protection of human rights in the country. Most of these issues include NATO role; First, international forces, with their action and inaction has created a sense of confidence for the warlords, human rights abusers and perpetrators of atrocities to no longer feel fear and accountable for the outcome of their acts. NATOs alliance with the warlords in fighting terrorism, and its help and support to commanders who play vital role in fighting the insurgents, has overshadowed the legitimate expectation of Afghans who believed that the human rights violators and abusers would be brought to justice, or a mechanism of restoring justice be setup to recognize the plight of victims of war and human rights violations. The NATO support to human rights in the country, given the impact of their relationship with the abusers of human rights, I believe has been more rhetoric rather than a firm stands which has allowed the culture of impunity to exist and preserved the continuance absence of accountability. This in turn has made the people of Afghanistan to disbelieve and distrust the NATO forces and; therefore, reduce the trust and confidence. Also this has another unintended consequence which is the deliberate weakness of the promised rule of law in the country. If the human rights

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violators and criminals are not brought to justice, or not held accountable for the consequences of their action, it will promote a sense of impunity which will undermine the efforts to establish an accountable system. If the NATO really wants to win the war as well as honor the very cause of its presence in Afghanistan, it has to stop providing help and support to the warlords, the commanders and militias who do not have a clean hand. The culture of impunity should be replaced with accountability. Second; during the past few years, the NATO has been partially responsible for the arising number of civilian causalities. According to the UNAMA report, the civilian causalities have increased by 40% in 2008. Likewise, the 2007 statistic shows the raise of civilian causalities by another 30%. While its the prime responsibility of the International Military Forces to protect the civilians and abide by the IHL and IHRL. The lack of coordination between different forces of NATO in Afghanistan, Afghan forces and clarity in the command structure, the lack of clear direction and procedures for the IMF to observe the IHL and IHRL in the conduct of their operation. Raids on wedding parties, maintaining its military installation within the civilian area and overnight raid and house search of Afghans, have been the examples of the NATO activity. Recently, as a positive step, the NATO has issued a tactical directive which guides the international military forces on how to observe the civilians lives and infrastructures during their campaign. This step; however, is a very positive move, to bring the civilian casualties number to zero has yet to be realized. For these reason, the AIHRC has a concrete set of recommendation which would help the NATO, if listen, to minimize the number of civilian casualties. In this note, I should say that the increase of IMF in the country would be a positive sign as it will alleviate the need for resorting to airpower. But a lot more have to be done to reduce the civilian casualties. Third, no wonder if I talk about the lack of transparency about the situation of people who have been detained and kept in Bagram for years. Which dose cause suspicion about the allegation of abuse by the NATO forces. As we AIHRC as an independent national institution of human rights in Afghanistan has no access to monitor the situation of human rights of the people who are detained. The lack of access to the detainees kept in IMF prison, and the allegations of mistreatment of prisoners is the matter of huge concern. The obligation of IMF forces in Afghanistan under the provision of IHL and IHRL is clear, and this has been unfortunate if we do not see progress in this regard. I urge the IMF to let the AIHRC to have access to and observe the detainees human rights situation. It will help on building the confidence between the people in Afghanistan and international military forces. Fourth, the NATO was expected to have learned from the Balkan context, and other foreign forces invaded Afghanistan years before specially Britains and USSR on how to deal with Afghans. Moreover, the requirement of a just war is that when the international forces intervene in a country, they need to be obeying and respect the accepted norm and culture of the concern country; otherwise, the very objective of the mission is undermined. Unfortunately in the area of communicating with the Afghans, respect to the Afghan culture and tradition, The body search of women by men, breaking into the houses of Afghans without any warrant and the detention and arrest of Afghans without communication of their charges are the issues that would adversely affect the NATO reputation as a protective force; it rather would help the radical elements to 45

manipulate the situation in favor of their propaganda and use it against the international force. No doubt that without NATO force, Afghanistan will not last long before falling in the hell of chaos, violence and anarchy, nonetheless the NATO need to abide by the legal and ethical standards set forth by the international treaties and covenants. Fifth, the NATO has engaged, in several occasion including the recent event in NATO HQ, the Afghan women to discuss issues relevant to the Afghanistan affairs. Further, and though NATO has provided humanitarian assistance to many Afghans, built infrastructures and provided services in the country, the NATO has also been accused for not taking into their consideration the safety of women and children when they conduct their military operation. This directly affects the attempts and efforts have been made to promote the women rights and bring a positive change in the country. More than 600 schools are closed because of war or threat from insurgents, the same has affected the healthcare centers. It is urgent, that when NATO operate in an area not only it should provide protection to women and girls but also to provide enough security that they can attend schools and benefit from the public services like healthcare. Sixth: Military capability and pressure needs to be maintained, but not to be perceived as the only solution. In conducting military operations, the Afghan forces should be given more role for the activities. Especially on the house search and ground activities. In addition to military pressure, efforts should be combined towards establishing a credible, functioning, and responsive government- in other words good governance, which can be trusted and supported by the people. I believe that as support for government and international community increases among the people, more opposition groups will be marginalized. Seventh: the problem in Afghanistan should not be seen as isolated case; A regional solution is required, especially the one that include the neighboring countries of Pakistan, Iran and other countries including Russia. Untied approach by NATO member countries is vital. The chronic problem of Afghanistan needs a comprehensive multi dimension strategy. Military operation can be one of the solutions. In my view the promotion of Democracy and human rights will be the main solution for post conflict countries including Afghanistan. Hope that the traditional and tribal situation in Afghanistan will not be used as an excuse not to promote democracy and human rights in Afghanistan. Eight: Be clear that the NATO member countries are partner with the Afghan people and government and working to empower the people in Afghanistan to build democracy and bring peace and security to the long suffering of the people rather then imposing their will and interest on the people, acknowledge the suffering caused by the use of military forces and violent conflict, affirm commitment to just resolution of existing conflict in Afghanistan and the region. Finally human rights principle should be in the center of every policy and strategy in Afghanistan. The people in Afghanistan would like to live with dignity and respect to their human rights. In conclusion, the role of NATO over all has been very positive, but it needs to be precautious when it comes to the issue of how to deal with the warlords, and drug lords, how to conduct, the war and military operation. The preventive measure to protect more civilians and the civilian infrastructures should be the priority of NATO operation in the country. NATO is a positive and benevolent force in the eyes of afghan, but these perceptions will be eroded and blurred if the unintended consequences of NATO and international forces operation are not taking into consideration. Finally, NATO has to be careful when it stresses its position on issues such as 46

talking to the Taliban or Insurgent group to not undermine given human rights value and principles. Especially the rights of women in Afghanistan. Accountability and justice should not be exchange for the political gain. The security and peace is not sustainable with out accountability and justice. I would finish my talk with mentioning that the job is not done in Afghanistan and NATO has to complete the job and set a good example of their intervention. The security and peace in Afghanistan will help the security and safety of every one and every where in this planet. Thank you.

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Discussion (including Q&A) with Maher Arar, Syrian-born Canadian citizen rendered and tortured as part of the U.S. extraordinary rendition program - Live Via Video Conference
Extraordinary Rendition: The Story of Maher Arar
In 2002, Maher Arar, a Canadian citizen, was detained at a U.S. airport on his way home from a family trip. He was interrogated by U.S. officials about allegedlinks to al-Qaeda and was repeatedly denied the right to contact his family or a lawyer. He was then sent against his will to Syria, a country renowned for torture. Mr. Arar was interrogated, tortured and held in a grave-like underground cell in Syria during most of his year-long detention. No country, including the U.S., has ever charged him with any crime. York police. When Mr. Arar asked for a lawyer, he was repeatedly told he had no right to a lawyer, because he was not a U.S. citizen. Mr. Arar was interrogated and held in solitary confinement for 13 days, initially denied food and routinely shackled and denied sleep. During his interrogations, U.S. officials asked Mr. Arar to voluntarily return to Syria, a country known for torturing prisoners. Mr. Arar told them repeatedly that he wanted to go home to Canada. On October 3, 2002 the Canadian Consulate visited Mr. Arar. She had not been contacted by U.S. officials, as required. Maher expressed his fear that he might be sent to Syria, and she assured him that he could not, since he was a Canadian citizen. On October 5, 2002, Maher was finally allowed a short visit with a lawyer. But the day after the meeting, he was again interrogated alone despite his repeated requests for his attorney. He was then taken in shackles to a private airport in New Jersey and flown by private jet to Amman, Jordan via Rome, Italy. He was beaten in Amman and then taken to Syria, where he spent the next year in unspeakably horrific conditions. In Syria, Maher spent more than 10 months in a gravelike underground cell, 3 feet wide and six feet long. He was beaten and interrogated, and whipped with an electrical cable. He was regularly threatened with more torture, and forced to hear others being tortured. He was forced to confess to having trained in Afghanistan, although he has never been there. On October 5, 2003, Syria released Maher. The Syrian Ambassador to the U.S., Imad Moustapha, said, We did our investigations. We traced links. We traced relations. We tried to find anything. We couldnt.

What is Extraordinary Rendition?

Since 9/11, the Bush administration has used extraordinary rendition to covertly transport an estimated 150 personsand possibly many morefor detention and interrogation without judicial oversight as part of the so-called war on terror. Extraordinary rendition is the forced transfer of a person from one country to another for arbitrary detention and interrogation under torture. Extraordinary rendition is illegal. The Convention Against Torture (CAT ) and the International Convention on Civil and Political Rights (ICCPR), both signed and ratified by the U.S., prohibit torture and require states to prevent, investigate and punish acts of torture. CAT Article 3 explicitly prohibits the transfer of a person to a country where there are substantial grounds for believing the person would be in danger of torture. Additionally, the Foreign Affairs Reform and Restructuring Act of 1998 obligates the U.S. to comply with CAT Article 3 and take extra measures to prevent the involuntary return, removal or extradition of a person to a country where he or she fears torture. Maher Arar, 38, is a wireless systems engineer. He was born in Syria and moved to Canada at 17 years old, becoming a citizen in 1991. After attending McGill University and obtaining a Masters degree in telecommunications, he moved to Ottawa with his wife Monia and daughter Bara. Maher and Monia had their second child, Houd, in February 2002. On September 26, 2002, on his way home from a family trip, Mr. Arar was pulled aside while transferring planes at JFK Airport in New York and questioned by INS officials, FBI agents, and New

My life was destroyed by what happened to me. I hope that my lawsuit will make sure that no one ever again has to go through what I went through at the hands of the United States government -Maher Arar Arar v. Ashcroft

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The Center for Constitutional Rights (CCR), together with DLA Piper US LLP, represents Mr. Arar in a case against the U.S. officials responsible for his rendition to torture, including former Attorney General John Ashcroft, former Deputy Attorney General Larry Thompson, FBI Director Robert Mueller and U.S. immigration officials. Mr. Arar alleges that the officials violated his Fifth Amendment right to be free from torture and arbitrary detention in Syria, his right to be free from mistreatment while detained in the U.S., and his right to access counsel and the courts. The Defendants challenged the suit, stating that Mr. Arar, a non-U.S. citizen, was not protected by the Constitution, and recast what happened to him as an expedited removal. The U.S. government asked that the court dismiss the case, arguing it would expose state secrets and harm national security. In 2006, a federal judge dismissed Mr. Arars constitutional claims, finding that national security and foreign policy considerations prevented him from holding U.S. officials liable. Mr. Arar appealed this decision to a three judge panel of the Second Circuit Court of Appeals, which affirmed the dismissal 2-1 in June 2008, agreeing with the lower court that Mr. Arars claims would interfere with national security. However, in an extremely rare move, the Court of Appeals decided that Mr. Arars appeal would be reheard by twelve judges. The rehearing occurred on December 9, 2008 in New York. You can watch the argument on C-Span here: http://ccrjustice.org/ararrally-and-2nd-circuit-court-appeals-arguments

1. There is no evidence indicating Mr. Arar committed any offense or implicating him in terrorist activity 2. There is no evidence that Canadian officials participated in the U.S. decision to detain Mr. Arar and send him to Syria. 3. In deciding to detain Mr. Arar and send him to Syria, the U.S. very likely relied on inaccurate and unfair information provided by Canadian officials. 4. Canadian officials did not act quickly enough to get Mr. Arar out of Syria and leaked false information upon his release, tarnishing his reputation. In January 2007, the Canadian government settled Mr. Arars civil case for about $10 million. Canadian Prime Minister Harper and the Commissioner of the RCMP apologized to Mr. Arar and his family. Harper called on the U.S. to come clean and acknowledge the deficiencies and inappropriate conduct that occurred.

What has the United States Done?

Not only has the U.S. fought to dismiss Mr. Arars lawsuit, but the Bush administration has kept Mr. Arar on a watch list and continues to deny him entry into the U.S. It has refused to cooperate with the Canadian Inquiry, and has refused to appoint outside special counsel to investigate and prosecute U.S. officials for any crimes relating to Mr. Arar's rendition. All this despite a report by the Inspector General (IG) of the Department of Homeland Security finding that immigration officials had determined that Mr. Arar would likely be tortured if sent to Syria, but that decision was overridden by officials in D.C. The IG also concluded it was possible that Mr. Arar was sent to Syria to be to be interrogated under unlawful conditions.

How has Canada Reacted?

Upon Mr. Arars release and in response to public pressure, the Canadian government launched an extensive public Commission of Inquiry to investigate the responsibility of Canadian officials surrounding his rendition to Syria. The Commission concluded:

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PANEL # 3: 60 Years Later: Accountability and the Significance of NATOs Commitment to Human Rights
Wolfgang Kaleck, Secretary General of the European Center for Constitutional and Human
Rights (ECCHR), Berlin

Next Three Extracts From: CIA Extraordinary Rendition Flights, Torture and Accountability A European Approach, Edited by the European Center for Constitutional and Human Rights (ECCHR), January 2009 PREFACE by Manfred Nowak, United Nations Special Rapporteur on Torture; pp. 9-12. The U.S.-led strategy of combating terrorism outside the rule of law and outside minimum standards of international human rights and humanitarian law by resorting to systematic practices of arbitrary detention, enforced disappearance, torture, denial of habeas corpus and minimum standards of a fair trial, constitutes gross and systematic human rights violations and may even be considered crimes against humanity. The global spider web of secret detention facilities, torture chambers and so-called extraordinary rendition flights operated by the CIA with privately chartered aircrafts for the purpose of circumventing the requirements of international aviation law, can no longer be concealed. Thanks to meticulous investigations by journalists, non-governmental human rights organizations, international and regional human rights monitoring bodies, as well as litigation by human rights lawyers and law firms, innumerable pieces of a global puzzle were put together to reveal a shameful picture. At a time when we should be celebrating the 60th anniversary of the Universal Declaration of Human Rights and the achievements of the international human rights movement since then, the world finds itself in a deep moral, political and human rights crisis. But it would be far too simple to just blame the Bush Administration for this distressing reality. The CIA could not have established its global spider web without the active support and cooperation of many governments and intelligence services in all regions of the world, including Europe. Various investigations by the Council of Europe and the European Union have established beyond reasonable doubt that the CIA was operating secret detention facilities in at least Poland and Romania, and that most European governments willingly and knowingly provided their air space and airports for these illegal rendition flights, and cooperated with the CIA in deporting suspected terrorists to countries well-known for their practice of torture. Nevertheless, European governments did not provide the required information to the Secretary General of the Council of Europe and other European investigation bodies. The United States and Europe, once at the forefront of human rights protection worldwide, have lost much of their credibility as global human rights defenders in the War on Terror. In addition, by compromising their principles of combating global terrorism within the boundaries of international human rights law and the rule of law, Western government have in fact played into the hands of terrorists who aim to reveal and criticize the hypocrisy of Western human rights policies.

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Furthermore, the systematic practice of rendition, torture and disappearance by the United States and its allies has provided an extremely negative example to other states with disastrous consequences. Time and again, I was confronted with one simple question by governments in all regions of the world that I visited in my function as UN Special Rapporteur on Torture: Why do you criticize us for torture if even the United States of America is officially using this practice? Is torture not legitimate in our common fight against the evil of global terrorism? The U.S.-based Centre for Constitutional Rights and its European counter-part, based in Berlin, have been pioneers in human rights litigation before domestic courts in the U.S. and Europe, as well as before international human rights monitoring bodies relating to human rights violations committed in the War on Terror. Although the Bush Administration used all its powers, including invoking the state secrecy privilege, to obstruct human rights litigation before U.S. courts, this strategy turned out to be counter-productive in the long-term. Nobody can understand why a German citizen (who was abducted by the CIA in Macedonia, illegally rendered to Afghanistan where he was severely tortured by U.S. officials, and then rendered back to Europe after his abduction turned out to be a mistake) would be prevented from holding the U.S. government accountable before U.S. courts and receiving adequate reparation for the illegal infliction of suffering. Similarly, why should a Canadian citizen (arrested by U.S. officials during his stopover in New York on his return to Canada, illegally rendered to Syria via Jordan to be several tortured, and handed back to Canada only after the mistake was discovered, handed back to Canada), receive 10.5 million Canadian dollars in compensation by the Canadian government after a thorough investigation of his case by independent Canadian experts, but not one cent for compensation from the U.S. Government simply because tort litigation before U.S. courts could possibly reveal state secrets which the Bush Administration, for obvious reasons, would prefer to keep confidential? Why should Donald Rumsfeld (who in his function as U.S. Secretary of Defense explicitly ordered systematic methods of torture against terrorist suspects in Guantnamo Bay, Abu Ghraib and other places of U.S. detention) not be brought to justice before a competent criminal court in the U.S. or any other state party to the UN Convention against Torture, based on the principle of universal jurisdiction explicitly established in this international treaty ratified by the United States and most European countries? Do we apply different standards of justice to Augusto Pinochet Ugarte, Hissne Habr, Charles Taylor, Slobodan Milosevic, George Bush or Dick Cheney? Is torture not the same crime when it is practiced in Chile, Chad, Sierra Leone, the former Yugoslavia or the United States of America and its detention facilities are found in Afghanistan, Iraq and Guantnamo Bay (Cuba)? The second edition of the CIA- Extraordinary Rendition Flights, torture and Accountability - A European Approach by the European Center for Constitutional and Human Rights analyzes a growing number of well-documented cases of extraordinary rendition and similar crimes in the U.S.-led War on Terror. These cases, whether based on civil or criminal litigation, are only the tip of the iceberg. They reveal immense human suffering, injustice and an incredible disrespect for the international rule of law and minimum standards of human rights by those who are responsible for organizing and conducting the War on Terror. I wish to thank Wolfgang Kaleck and his team for all their efforts and courage to put together this collection of well-documented cases of individual suffering in what the U.S. government

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calls extraordinary renditions. Vienna, 10 December 2008 Univ.-Prof. Dr. Manfred Nowak Professor for International Human Rights Protection, University of Vienna Director, Ludwig Boltzmann Institute of Human Rights United Nations Special Rapporteur on Torture Extract from Justice and Accountability in Europe Discussing Strategies, By Wolfgang Kaleck, pp. 18-26. Some critics question why resources and effort should be focused on human rights violations in the context of counterterrorism measures. Their critique highlights the potentially more dramatic and gross human rights violations committed worldwide, such as mass rapes in the Democratic Republic of Congo and massacres in Sudan. What these critics overlook, however, is that each case of extraordinary rendition results in a personal tragedy including long-term, physical and psychological damage to the victim and the victims families (though this latter element is generally ignored). The pain and injustice is further exacerbated when relatives are denied their right to an effective judicial remedy and denied their right to information concerning their relatives whereabouts. Additionally, each case of extraordinary rendition should be regarded as a crime on both the international and domestic level. These crimes Encompass torture and enforced disappearances, both viewed as international crimes, particularly when tantamount to war crimes or crimes against humanity. Therefore, all states involved are legally obliged to investigate the facts and, under certain conditions, prosecute these crimes. However, the system of extraordinary rendition encompasses not only the legal, but complex social and political aspects of torture. The term itself is so complex in fact, that it took many decades to achieve a universally recognized absolute prohibition of torture. Torture is still a common practice in a number of states, however state-sponsored torture practices have never before been accompanied by precise theoretical justifications set out to question the law as such. When Columbian and Chinese policemen tortured and killed political opponents, for example, it was clear that the rule of law (inclusive of the basic norms of human dignity and the absolute prohibition of torture) had been violated and these legal concepts were never questioned by the majority of civilized nations. Since 2001, the War on Terror has undermined international consensus; the United States, one of the worlds most significant supporters of international law, began to systematically attack universal standards of human rights and justify their actions by shifting the boundaries of the rule of law. Examples of this shift include increasing executive (presidential) powers, reducing universally accepted human rights with regards to enemy combatants, redefining torture, and using siege competences excessively. These actions have led to a significant reduction of human and civil rights protection not only within the United States, but all over the world. As Manfred Nowak describes in his preface, in his function as UN Special Rapporteur on Torture he was often confronted with the same question in regions around the world: Why do you criticize us for torture if even the United States of America is officially using this practice? Is torture not legitimate in our common fight against the evil of global terrorism? The War on Terror has led to a slippery slope. Under its banner and in the name of security, basic rights have been and continue to be denied. The fight against torture, whether case-by-case or in abstract terms, is therefore critical to ensure a humane and civilized society. 52

Combating torture means taking decisive action against its propagation and insisting that those directly responsible for torture as well as those who organize the practice of torture are punished. As a system of outsourcing illegal interrogation methods and torture, extraordinary rendition impacts the fight against torture globally. Several states, some of whom consider themselves models of democracy and rule of law, participate in and profit from information and intelligence gained by police and secret services in states notorious for the use of torture. As many cases took place on European territory, a genuine European approach to countering the system of extraordinary rendition is necessary. The basis for this work has been established: a new coalition of non-governmental actors including journalists, lawyers and human rights activists have joined with institutional actors who have assisted in revealing the existence and details of the secret CIA extraordinary rendition program. The first investigations were undertaken by a local prosecutor in Milan, Italy, by local journalists in Mallorca, Spain, and by writers for the New York Times and the New Yorker. The former Swiss prosecutor, Dick Marty researched and compiled all of the facts in his Council of Europe Reports in 2006 and 2007. His conclusions noted that European governments lack the political will to fully investigate the facts and to draw conclusions in both political and legal terms. Legal responses to the extraordinary rendition program The first goal in cases where clients are held in illegal detention is to seek judicial review, fair trials, and essentially to obtain the freedom of the detained persons. This is the goal of the Guantnamo Initiative conducted by the Center for Constitutional Rights (CCR) and of organizations such as Reprieve in the UK. Most of the legal steps must be taken outside of Europe and instead be pursued in the U.S., Africa and Asia, where the individuals are held as prisoners. The legal strategies taken outside of Europe are not described in detail in this report, although many of the legal instruments discussed here are connected to the efforts in other regions. There are four main areas of litigation in Europe: 1. Freedom of Information, 2. Criminal Law, 3. Universal Jurisdiction, and 4. Civil Law. 1. Many political changes are necessary to avoid future human rights violations within counterterrorism measures. To begin, better oversight and control of military operations, police, and secret services is necessary. Transparency is urgently required, as many of the human rights violations described in this publication were made public through the security apparatuses involved. In this regard, the election of President Obama represents a significant change and provides some hope that serious investigation into the torture program that began in September 2001 will be made. A presidential inquiry pursued outside the U.S. Freedom of Information Act would be an effective tool to achieve a greater level of transparency. Approximately 70 countries worldwide have enacted freedom of information laws. With respect to the extraordinary rendition program, the United States and Eastern European countries (particularly Albania, Macedonia, Poland and Romania) are at the forefront in terms of freedom of information policies. In 1966, the United States of America enacted the Freedom of Information Act (FOIA), a federal law establishing the publics right to obtain information from federal government agencies. The FOIA is codified at 5 U.S.C. Section 552 and was amended most recently in 2002. Under this policy, any person can file a FOIA request including U.S. citizens, foreign nationals, organizations, associations, and universities. This report will describe the ongoing attempts to establish similar freedom of information policies in Eastern Europe. Cases have been

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initiated in Albania and Macedonia, while others will be pursued in Poland and Romania after more information is available. Once freedom of information requests can be made under national law, these requests, together with litigation, will increase the capacity for revealing new and relevant information. Freedom of information policies can help raise awareness regarding rendition-related abuses and strengthen the ongoing criminal or civil litigation cases. 2. Cases of extraordinary rendition constitute international crimes and as such, the states involved have a legal obligation to investigate the facts and if appropriate, prosecute these crimes. Numerous criminal proceedings have been initiated since the first cases were made public. These cases are perhaps the most relevant in terms of legal procedures currently used in the context of rendition cases. Therefore, they are described in detail in this edition. The preliminary results are manifold and often contradictory. There are ongoing investigations in Madrid, Milan, and Munich, and new investigations in Warsaw and Sarajevo since the summer of 2008. Further attempts for investigations have been made in France and Sweden. Every criminal case, regardless of its legal success, has had very tangible impacts. Criminal cases raise public awareness about rendition cases and therefore trigger other political and legal reactions (sometimes even outside the country where the cases were first presented). Legal victories have been achieved in some of the cases. In the Italian case of Nasr (Abu Omar), for the first time in Europe, CIA agents involved with the extraordinary rendition program are facing trial in absentia in Milan. In Italy, as well as in the German case concerning Khaled El Masri, arrest warrants have been issued. Because the Italian and German governments have refused to issue extradition requests for the alleged perpetrators in the United States, legal proceedings have been blocked. However, the suspected CIA agents now risk arrest whenever they travel outside the United States. In both cases, the proceedings are still pending. The litigation strategies in both of these cases and in the Spanish investigation revealed important information. This alone can be regarded as a success. 3. Two criminal complaints were served to the German Federal Prosecutor in 2004 and 2006 based on the principle of universal jurisdiction. The complaints requested that the prosecutor open an investigation and ultimately pursue criminal prosecution of high-ranking U.S. officials responsible for authorizing and participating in war crimes, including CIA rendition flights, in the context of the War on Terror. The complaint alleges that high-ranking U.S. officials, such as former Secretary of Defense Donald Rumsfeld, former Director of the CIA George Tenet and others named as defendants, bear individual criminal responsibility for war crimes against a number of detainees in Iraq, Afghanistan and in the U.S.-operated Guantnamo Bay prison. The case is evidence that universal jurisdiction complaints can be used as a last resort, although political obstacles against such complaints should be expected. There are no international courts or tribunals in Iraq, or in any other state where extraordinary renditions have occurred, mandated to conduct investigations and prosecutions of U.S. officials responsible. The United States has refused to join the International Criminal Court, thereby eliminating any option to pursue prosecution in that arena. The Iraqi courts have no authority to prosecute. Furthermore, the U.S. safeguarded its personnel in Iraq by providing immunity from Iraqi prosecution. The United States has refused to investigate the responsibility of top persons in command. German courts became a potential last resort to end impunity and obtain justice for victims of abuse and torture that occurred while they were detainees of the United States.

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The complaint in Germany against U.S. officials generated enormous public interest. There has been extensive national and international media coverage of this case. Numerous national, international and regional NGOs, as well as renowned individuals have endorsed the complaint. It is clear the public believes that political and military leaders who allowed, ordered or implemented unlawful extraordinary renditions and abusive interrogation techniques should be held accountable. This case is somewhat different from the others presented under the banner of extraordinary rendition cases. It does not exclusively refer to a secretly abducted person who was then transferred to a country where he was subjected to torture or other cruel and inhumane treatment. Rather, the case directly challenges an entire policy and how governments manage persons suspected of terrorism and their legal and physical treatment. It refers to unlawful detentions and to the establishment of a system intended to extract presumably useful intelligence through torture. The universal jurisdiction complaint is an important mechanism for legally evaluating extraordinary renditions. The initiation of investigations and a possible conviction for war crimes would inevitably lead to the re-characterization of acts of rendition as falling within the parameters of the definition war crimes. Universal jurisdiction was similarly invoked in the Spanish CIA flight case, although territorial arguments are most relevant in that case. As such, this case should be regarded as a typical criminal case in which active or passive personality principles, or elements of territoriality, establish the grounds for the courts jurisdiction over the case. 4. Two civil cases are of great significance: the first, on behalf of Murat Kurnaz, Khaled El Masri, and Maher Arar against Rumsfeld, Ashcroft and other high-ranking U.S. officials; and the second, a complaint against the aviation company, Jeppesen Dataplan, Inc. Both demonstrate different ways to challenge human rights violations in the context of the War on Terror. Legal proceedings before U.S. courts pursuant to the Alien Tort Statute have been one effective strategy. Civil litigation strategies make individuals and private companies aware of potential consequences of collaborating with illegal actions. Ideally, these complaints could dissuade individuals or companies from cooperating with CIA agents for financial gains in order to avoid potential legal liability. Maher Arars civil case in the U.S. helped trigger a Canadian investigation and helped support the Canadian government in pursuing that investigation. This case is of fundamental importance. It shows which tools can be employed by a democratic government involved in extraordinary renditions to manage such crimes and acknowledge responsibility. By allowing its institutions to be supervised, the Canadian government was the first government that attempted to make amends and to offer redress for damage caused by rendition. There are undoubtedly more legal instruments available for human rights defenders in challenging cases of extraordinary rendition. Regional instruments like the European Court of Human Rights and the African Commission on Human and Peoples Rights will become increasingly significant in the future. there are no limits to the political and legal instruments available that are capable of combating the extraordinary rendition program. Local and global remedies can be used in addition to the use of soft law and hard law procedures in several countries simultaneously. Within this discussion of legal remedies and their effects one must not forget the obstacles and legal and practical problems that victims, their families, lawyers and human rights organizations

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are facing. The law seems to be a weaker mechanism than political solutions when it comes to transnational security and war issues. Due to state secrecy policies and related laws, a severe lack of information remains in nearly every case. The details of the CIA flights are still not completely known; the main actors and suspects both in the U.S. and elsewhere remain largely unknown; and many victims remain unknown. When determining that a certain flight departed, stopped, or landed is the only fact that can be confirmed, it is difficult to then assign these events to specific individuals. There are severe obstacles in obtaining access to victims who still remain in detention, such as the alleged high-value detainees who cannot be interviewed about the details of their treatment. The various legal systems pose many challenges because national legislation in many countries does not allow for prosecution of human rights crimes, such as crimes against humanity, war crimes or forced disappearances. For such crimes, a fullscale investigation of the complexity of the crime would be more suitable, involving different locations, individuals, and the different stages of the crime. Many prosecution procedures are only conducted due to allegations of ordinary crimes, such as murder. Political obstacles are observed in every country and jurisdiction. In Italy and Germany, where prosecutors and judges seriously investigated and finally released arrest warrants for CIA agents, both governments suspended the cases and delayed the judges several times. In both countries, constitutional and administrative courts were involved in determining the legality of government involvement. Globalized counterterrorism measures are now countered by a globalized transnational human rights movement. This transnational approach is a new advantage, the strength of which was observed in Berlin when European, German, American, Macedonian and Albanian lawyers working on El Masris case met in June 2008. On the same occasion in a joint press conference, the ACLU, OSJI and ECCHR demonstrated their common goal to seek truth and justice in all possible jurisdictions. The global spiders web contains totalitarian elements as it is both secret and hidden. It attempts to conceal the extraordinary rendition program and guarantee immunity and impunity. Since 2001, the transnational human rights movement has proved that it is capable of investigating human rights violations and of successfully exposing scandalous programs like Guantnamo and extraordinary rendition. Efforts on behalf of the Guantnamo detainees illustrate that existing national and international human rights laws can guarantee a minimal standard of protection for the individual. The efforts of transnational actors support the enforcement of fundamental principles including the absolute prohibition against torture. The fight against torture is an ongoing one; it is a global, social and legal struggle that must include new law, as well as innovative methods and strategies for enforcing existing laws. The upcoming presidency of Barack Obama will most certainly lead to the termination of some of the most scandalous practices in the War on Terror and to investigations of acts carried out over the past eight years. However, the fight for truth and justice and the restoration of the respect for human rights and the rule of law is much too important to be left in the hands of one governments administration. While it is crucial to end the torture in Guantnamo and release every prisoner who cannot be convicted in a fair trial, there are several more Guantnamos around the world and many more detainees to be released. Reparations must be paid and those responsible for crimes must be held accountable until some justice is achieved. The use of legal instruments by human rights lawyers and organizations may not be sufficient, but this work remains vital in reaching these goals.

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Extract from The US Program of Extraordinary Rendition and Secret Detention: Past and Future, by Margaret Satterthwaite, New York University; pp. 54-58 What is the future of the extraordinary rendition and secret detention program? Will President Barack Obama abolish the Program, replace it with something different, or allow it to continue in its current form? Human rights and civil liberties organizations in the United States and abroad have submitted recommendations concerning counter-terrorism policy to the new president; the vast majority of such recommendations call on the new president to cease extraordinary rendition. Indeed, by now, there are few if any commentators, policy-makers, or national security experts who will defend the policy of extraordinary rendition. More precisely, most everyone now agrees that extraordinary rendition transferring individuals (since 9/11, usually terrorism suspects) to countries where they face a substantial risk of torture is illegal, morally wrong, counterproductive, or a combination of the three. Where the debate still rages and where policy-makers will need to tread carefully is in relation to three main issues: (a) whether it is likewise wrong to transfer a terrorism suspect to a country where s/he is likely to face cruel, inhuman and degrading treatment (CIDT) that stops short of torture; (b) whether informal promises by a receiving country usually referred to as diplomatic assurances are legally sufficient to obviate an otherwise patent risk of torture upon transfer; and (c) whether there are any legal, moral, or policy constraints on the transfer of an individual outside of legal process when risk of torture and CIDT are not a concern. A careful analysis of human rights law establishes that (a) it is illegal to transfer suspects to countries where they are at serious risk of mistreatment short of torture; (b) diplomatic assurances are not worth the paper they are (not) written on; and (c) even in the absence of a substantial risk of torture or CIDT, informal transfers, as currently practiced, are prohibited under international law and should be formalized and regulated. Confusion arises concerning the legality of transfers of individuals to countries where they may face CIDT but not torture because the U.S. has ratified two different treaties that each set out a different standard concerning non-refoulement. As discussed earlier in this article, CAT prohibits transfers to a risk of torture. The ICCPR, on the other hand, prohibits transfers to a risk of torture and CIDT. This prohibition is not explicit, but stems from the non-derogable nature of the prohibition of ill-treatment set out in Article 7 of the ICCPR, and the recognition that CIDT at times becomes so severe that it amounts to torture. The ICCPR refused to draw a bright line between the two forms of ill-treatment, instead prohibiting both in stark terms. On the basis of this equality of protection, numerous international bodies have determined that the ICCPPR and similar conventions prohibit all transfers to a risk of torture or CIDT. Until now, however, this rule has not been implemented domestically. Despite this failure, the United States ratified the ICCPR without relevant reservations, and it is thus bound by this requirement to refrain from transferring individuals to a risk of CIDT. Renditions to a risk of cruel, inhuman or degrading treatment should be explicitly banned by Congress or prohibited by the new administration. Second, if it is impermissible for the United States to transfer individuals to countries where they face a substantial risk of torture or CIDT, will diplomatic assurances be sufficient to protect against this risk, transforming otherwise risky transfers into legal ones? Diplomatic assurances (DAs) are promises made by a receiving country concerning the treatment of a specific individual facing transfer. While DAs are subject to regulation when used in the context of

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extradition or removal from inside the United States, there are no such regulations applicable to extra-territorial transfers. Assurances have, however, been obtained by the Department of Defense when affecting transfers from Guantnamo Bay, and by the CIA when transferring individuals to countries such as Egypt, Syria, and Morocco. While DAs may seem perfectly reasonable in the abstract, they are woefully inadequate in practice. This is true for three main reasons. First, instead of being secured through a legally-authorized procedure, DAs are obtained through back-room deals by diplomats in secret. Second, assurances have not been subject to judicial review. Individuals facing rendition are by definition unable to access review, since they are picked up and transferred without any process at all. Third, once secured, assurances are not carefully monitored. This is in part because the incentive structure behind such promises ensures that both parties will minimize opportunities to discover whether breaches have occurred, since such breaches would reflect badly on both sending and receiving countries. International human rights bodies have found that both CAT and the ICCPR require that DAs fulfill three basic requirements to be permissible: (1) Assurances must be obtained using clear and established procedures. (2) Assurances must be subject to judicial review. (3) Assurances must be followed by effective post-return monitoring of the treatment of the individual returned subject to assurances. U.S. practice concerning DAs is out of compliance with each of these requirements, and is therefore illegal under human rights law. The new president and Congress should either reject DAs outright, or strictly regulate their use. The final issue is whether there are any legal, moral, or policy constraints on the transfer of an individual outside of legal process when risk of torture (and CIDT) is not a concern. This form of transfer rendition without the modifier extraordinary is the form that has been most vociferously defended by administration officials and commentators. For example, on December 5, 2005, Secretary of State Condoleezza Rice claimed that, [f]or decades, the United States and other countries have used have used rendition to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice. Secretary Rice was right that the U.S. and other States have used rendition to bring individuals into their territory to face regular criminal charges. Indeed, as discussed above, the United States has used such renditions to justice as an official policy since the Regan era, when drug kingpins and criminals wanted for terrorist crimes were lured or abducted to the United States to stand trial with full constitutional guarantees of due process. What is different now is that there has been no effort to charge or bring to trial individuals who have been transferred. Instead, individuals have been picked up, transferred, and interrogated or detained without charge. The detaining powers are U.S. War on Terror allies such as Egypt and Pakistan, or the U.S. itself, which holds such individuals in CIA black sites or transfers them to Guantnamo. While Secretary Rice has asserted that these transfers are lawful under international law, the U.S. practice is in fact unlawful, and the new administration should either halt its use or bring it in line with international law. Under international law, there are several basic principles that must be upheld whenever an individual is transferred from the custody of one government to that of another. First, the transferring state must respect the sovereignty of the state where the individual is found. This requirement means, for example, that a transferring state may not abduct an individual on 58

another states territory without the permission of that state. Of course, sovereignty concerns are not always an issue, since an individual may be apprehended on the high seas or with the cooperation of the state where the individual is found. Second, in all cases, the transferring state must respect and protect the human rights of the individual being transferred once that person is taken into their custody. This requires, at minimum, that the transferring state act in accordance with the principle of legality, meaning that the apprehension must have a basis in established law, and that the apprehension must not amount to arbitrary deprivation of liberty under international human rights law. This is especially relevant for individuals apprehended and sent to CIA black sites or foreign interrogation centers, where no procedures whatsoever are in place to check against arbitrariness of detention. Finally, while international law in this area is nascent, a procedural right to challenge transfer before it has been effected has been clearly enunciated by a number of international bodies. This right requires states to provide a forum in which the individual facing transfer can access a neutral decision-maker to articulate his or her challenge to the contemplated transfer. The scope of this challenge has not been clearly articulated, but at a minimum it includes the procedural right to make out a claim of nonrefoulement. Although this may sound like a simple restatement of the earlier substantive rule against return to a risk of torture, this is in fact a right to a specific procedure one that would allow the individual himself to articulate his subjective fear of mistreatment and not one in which the transferring state determines, ex parte, whether a risk exists or not. It is up to the transferring state to determine whether this challenge should be heard by a traditional court, an administrative body, or some other neutral decision-maker authorized by law, but in all cases, the review available must be conducted by a body that has been regularly constituted and which is governed by transparent procedures. Until and unless the United States complies with its human rights obligations when carrying out informal transfers, it will continue to flout international law. What was once an informal process designed to bring scofflaws within the reach of justice has become a process aimed at taking individuals outside the rule of law. The new administration must reverse course, extending human rights to all even those suspected of the worst crimes.

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ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS IN A TIME OF CONFLICT: A

EUROPEAN STATE PERSPECTIVE

By Phil Shiner, Attorney, Supervisor of Public Interest Lawyers (PIL), United Kingdom
Is there accountability for national command I will explore issues of accountability for human rights violations in periods of armed conflict post 9/11 from the perspective of a member of the Council of Europe. Thus, a main focus of my presentation will be on the practical protection to fundamental rights and freedoms afforded by the European Convention on Human Rights (ECHR). In particular I will explore the accountability implications of the procedural duties that operate to protect the rights to life (Art 2 ECHR) and the absolute prohibition on torture (Art 3 ECHR). The so called Court procedural or adjectival duty requires the State to hold an independent inquiry in circumstances where it might be implicated in breaches of each article. This inquiry must also be prompt, effective, and involve the relatives so that lessons may be learnt. Following the UKs occupation of South East Iraq as a member of the multinational force in Iraq (MNF-I) a series of test cases have proceeded in the UKs domestic Courts on human rights issues arising from the UKs detention policy in Iraq. The importance of these cases will be discussed and issues addressed in these cases include: 1. Whether there was jurisdiction for the purposes of Art 1 ECHR whilst the UK occupied South East Iraq; 2. If so was there a breach of the procedural duty in circumstances where UK forces violated arts 2/3; 3. Is the military system of investigation of human rights violations involving soldiers investigating other soldiers an independent one; 4. Were the actions of UK soldiers in SE Iraq post Security Council Resolution 1511/1546 attributable to the UN or to the UK; 5. Was the effect of UNSCR 1546 adopted under chapter VII of the UN Charter such as to override or qualify domestic rights pursuant to Art 5 ECHR that required for due process such that the UK were not entitled to intern indefinitely post 28 June 2004. 6. Did the UN Convention against Torture have a extraterritorial effect in either Iraq or Afghanistan. 7. Did the duty of non-refoulement flow from Art 1 jurisidiction in UK detention facilities in Iraq and if so was that duty qualified by a different international obligation that applied to embassies and consulates. 8. Does international humanitarian law operate so as to oust international human rights law in a time of conflict/occupation. These and other issues all go to the question of accountability for human rights violations in a time of conflict or occupation. All of these issues arise from cases conducted by Public Interest Lawyers including the following: 60

1. R (on the application of Al-Skeini and others) v Secretary of State for Defence25 2. R (on the application of Al-Jedda) v Secretary of State for Defence26 3. R (on the application of Al-Saadoon) v Secretary of State for Defence27 4. R (on the application of Al-Sweady) v Secretary of State for Defence, April 21 May 12 2009 5. R (on the application of Kammash and others) v Secretary of State for Defence, July 6 15 2009 6. R (on the application of Ali and others) v Secretary of State for Defence, October 2009 (forthcoming) 7. R (on the application of Hassan) v Secretary of State for Defence28 Al Skeini now proceeds to the European Court of Human Rights where it is likely to be heard (with Al-Jedda) by a Grand Chamber within 12 months or so. It will enable the ECHR to draw the lines on judisdiction post Bankovic (Grand Chamber) Bankovic has been relied on by the UK Government and UK Courts as authority for the proposition that there is not Art 1 jurisdiction unless there is a situation analogons with an embassy or consulate as there is if a violation of Arts 2/3 taking place within a military prison abroad. The ramifications of all of these cases (and others) will be explored in the context of a quest for accountability for the extraterritorial actions of states post 9/11. In so far as decisions of the UK, House of Lords and the European Court of Human Rights Grand Chamber have a resonance aboard this presentation will cover accountability at an international level. International Human Rights Post 9/11 The world changed dramatically on September 11, 2001. It must be understood that international law and human rights law in particular are essential to these changes. It is particularly important to recognise the links between certain trends of behaviour and the legal issues raised, and how these fit within a distinct US and UK project. One might think of this project as one of securing impunity or lack of accountability at least for what the US and UK now wish to do in their extraterritorial adventures. Those who demand accountability, especially in relation to human rights violations, and advocates for the peaceful resolution of conflict need to be extra vigilant. A counter project must start with an understanding of what needs to be resisted in order to have any hope of moving forward with an alternative agenda where immutable (or in legal terms peremptory) norms or rights prevail, and where the dignity and rights of all individuals, which are inherent and not in the gift of the state, set lines in the sand which cannot be crossed. The US and UK agenda has been jointly designed and implemented. It is a fatal analytical error not to see that US and UK actions in the manipulation of international law and human rights
[2007] UKHL 26, [2008] 1 AC 153, [2007] 3 All ER 685, [2007] 3 WLR 33, [2007] NLJR 894, (2007) Times, 14 June, 22 BHRC 518, [2008] 1 LRC 618, [2007] All ER (D) 106 (Jun) 26 [2007] UKHL 58, [2008] 3 LRC 718, [2008] 3 All ER 28, [2008] 2 WLR 31, (2007) Times, 13 December, 24 BHRC 569, [2007] All ER (D) 185 (Dec) 27 [2009] EWCA Civ 7, (2009) Times, 4 February, [2009] All ER (D) 153 (Jan) 28 [2009] EWHC 309 (Admin), [2009] All ER (D) 242 (Feb)
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violations are remarkably similar. It may be stating the obvious to say that the US and UK together made a commitment to regime change in Iraq from as early as April 2002. Acting together they had destroyed much of the Iraqi communication and other infrastructure before the invasion even began, all in the guise of bombing raids to enforce the No Fly Zones. Both states legal advisors concocted the flawed and illegal revival doctrine that allowed them to cloak their quest for regime change (or modern day colonial domination) with some semblance of respectability. Careful analysis of public speeches by leading US and UK politicians and lawyers allows one to piece together their project. John Bellinger IIIs talk in San Remo in September 2005 reveals that the legal advisors of both states knew, prior to the invasion, what International Humanitarian Law (IHL) would not allow. Three examples suffice to make the point: IHL does not allow the rewriting of the constitution of an Occupied State, it does not permit rebuilding contracts to be paid for by the proceeds of Iraqi oil sales under the UN Oil for Food Programme,29 and it does not allow for preventive detention after the first 12 months of an occupation. Bellinger made clear in his San Remo speech that both the UK and the US had discovered that the UN Security Council could be used to forge flexible arrangements that are tailored to the problem at hand and overcome impediments that would otherwise exist .30 By way of illustration, UN Security Council Resolutions (UNSCR) 1483 (22 May 2003), 1511 (16 October 2003), and 1546 (8 June 2004), passed at the behest of the US and UK, provided solutions to all three IHL issues raised above. Thus there is a new Iraqi constitution which is a trojan horse for the much contested Iraqi Oil Laws and the insidious process of expropriation of the Iraqi nations oil through Production Sharing Agreements which massively favour multinational oil companies. Twenty billion pounds of Iraqi assets have been expropriated to the UNSCR escrow fund,31 which begs a question about the issue of UK state responsibility given our key role as a Joint Occupying Power and as a co-architect of the Iraqi part of the project and, in particular, the design and implementation of the civil administration of Iraq through the Coalition Provisional Authority. Finally, preventive detentions continue in mass numbers,32 partly because the House of Lords ruled in December 2007, in Al-Jedda,33 that UNSCR 1546 had qualified the claimants Art 5 ECHR rights insofar as preventive detention was necessary for imperative reasons of security. I wish now to focus on the issue of human rights guarantees that need to be displaced or qualified if their project is to succeed and, in particular, on three themes: jurisdiction, attributability and applicable law. The first major theme of debate in the international human rights community post 9/11 concerns jurisdiction. One can start with Guantanamo Bay, and the US attempts to avoid jurisdiction at the facility in respect of any human rights of the detainees by claiming that the fundamental guarantees of the US constitution, the UN Convention Against Torture (UNCAT)
See in particular the role of the US Halliburton company: www.halliburtonwatch.org/ United Nations Security Council Resolutions and the application of International Humanitarian Law, Human Rights and Refugee Law, John Bellinger III, International Conference, San Remo, 9.9.05 available at http://geneva.usmission.gov/Press2005/0909BellingerIHLSanRemo-2.htm 31 This is the UN fund used to pool the proceeds of sale of Iraqi oil prior to the 2003 invasion. 32 The multinational force (MNF) through the US held 21,107 Iraqis at the end of December 2007, 33 R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence [2007] UKHL 58. The House of Lords had to decide to what extent the UN Security Council could displace or qualify the Appellants Art.5 ECHR rights by a UN Chapter VII resolution that triggered Art.103 of the Charter.
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and the American Covenant on Human Rights (ACHR) did not apply because Camp Delta, situated outside the territory of the US, was said not to be within its jurisdiction. (It should be noted that Guantanamo Bay is in fact leased from Cuba as a result of the imperialist SpanishAmerican war of 1898, which lease explicitly gives exclusive jurisdiction to the US). The same approach is evident in the fierce debate about extraordinary renditions. At the heart of such renditions is the desire to avoid any accountability at all for the acts or omissions of US agents, even where those agents have effective control over detainees in the territories (or coastal waters in the UK case) of other states. Again, a plethora of US, UNCAT, ACHR and International Covenant for Civil and Political Rights human rights protection is not in play: there is said to be no US jurisdiction. Accountability (or its absence) through jurisdiction rears its head again in Afghanistan in the context of the acts or omissions of the Troop Contributing Nations (TCNs) to the International Security and Assistance Force (ISAF). The transfer by Canadian troops of detainees held by them to the Afghan authorities, in the face of the clearest evidence from the UN Assistance Mission in Afghanistan (UNAMA) of abuse, torture, executions and disappearances in or from Afghan facilities, is contrary to Art 3 UNCAT34 and also to the duty recognised by the European Court not to transfer detainees out of the jurisdiction if such transfer carries a clear risk that a person will face torture or the death penalty.35 Despite this, a Canadian Federal Court of First Instance ruled in March 2008, in a challenge brought by Amnesty International in Canada, that the Canadian Charter of Rights and Freedoms (and, by analogy, UNCAT) does not have extraterritorial effect in Afghanistan. In that case the UKs Professor Greenwood gave expert evidence on behalf of the Canadian Government that there is no non-refoulement or Soering/Chahal duty for ISAF forces, as the duty only applies when there is a transfer from the jurisdiction of one state to another which involves a physical crossing of a state frontier. In Afghanistan and in Iraq, the UK Governments position was and is that there is no ECHR or UNCAT jurisdiction, and that Afghan detainees can be transferred to the Afghan authorities and Iraqi detainees to the Iraqi authorities (the latter despite the clearest of evidence from the UN Assistance Mission for Iraq similar lines to that of UNAMA in Afghanistan). The UKs position on UNCAT deserves special mention. Throughout this period it has claimed that there is no jurisdiction outside the territory of the UK in respect of Articles 2 or 16, this despite the repeated urgings of the Committee against Torture to the contrary. The UK seeks to equate UNCAT jurisdiction with Art 1 ECHR jurisdiction, which is primarily territorial, and to argue that exceptions to that general rule cannot apply outside the espace juridique of the contracting states, that is, Europe. But, quite apart from the fact that some of the Strasbourg caselaw does recognise ECHR jurisdiction even outside the Council of Europe,36 it is plain that UNCAT is not a regional treaty and that there is jurisdiction for UNCAT purposes when agents

Which protects non-refoulement, arguably a jus cogens norm. See for example UN Human Rights Committee, conclusure No.25, 23rd session (1982) 35 Chahal v UK, App. No. 22414/93, European Court of Human Rights (1996) 23 EHRR 413; Soering v UK, App. No. 14038/88, European Court of Human Rights (1989) 11 EHRR 439 36 Ocalan v Turkey, App. No. 46221/99 European Court of Human Rights (2005) 41 EHRR 985 and Issa v Turkey App. No. 31821/96 European Court of Human Rights (2004) 41 EHRR 567

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of a contracting state have enough control over persons to violate Arts 2 or 16 of UNCAT.37 Thus UNCAT jurisdiction does not march with Art 1 ECHR jurisdiction, as per Al-Skeini, which limits it to a military facility. Otherwise, UK soldiers could detain an Iraqi in the fields, beat him to a pulp and then tie him to a tree or drive him around in a military vehicle, and continue the abuse and torture; as long as they did not make the mistake of driving him inside a military facility, there would be complete impunity. The real point about jurisdiction is this: unless there is an independent inquiry in circumstances where it seems that the state might be implicated in torture or cruel, inhuman or degrading treatment, all the protection of IHL through Geneva Conventions III/IV, Additional Protocols I/II, through the International Criminal Court statute or through domestic criminal law (e.g. S.134 Criminal Justice Act 1988 and S.51 International Criminal Court Act 2001), counts for little. Without an independent, effective and prompt investigation the perpetrators go free (leaving to one side the vexed question as to what the military justice system provides). This is the real message of Al-Skeini and I shall return to it. Turning to the question of attributability, the UK Governments main argument in Al-Jedda was that the actions of UK state agents in South East Iraq were not attributable to the UK at all, but to the UN. This is because UNSCR 1511 authorised the MNF in Iraq, and continued this mandate by Resolution 1546 and thereafter. The UK relied on Behrami in which, in May 2007, the Grand Chamber of the European Court found that the actions of KFOR and UNMIK in Kosovo were attributable to the UN and not to individual TCNs38. In Afghanistan the UK Government argue in similar terms that the actions of UK members of ISAF are attributable not to the UK but to the UN. Thus, attributability is a prior question to that of jurisdiction either for ECHR or UNCAT purposes. On this analysis, if there was a dispute about whether, for example, an Iraqi detainee had been subjected to Art 3 ECHR / Art 2 UNCAT treatment, the UK courts would have no remit in an application for judicial review. The victim could fill out a form to the UN, but no more. Fortunately, the House of Lords disagreed with the UK Government and found that there was UK attributability. However, the argument is by no means over yet and is about to be tested again in the context of the UKs detention policy within Afghanistan as a member of ISAF.39 Finally, on the theme of applicable law, when the UK Government was in South East Iraq as an Occupying Power it was there on legal advice that the lex specialis operated to oust the ECHR.40 Accordingly, civil servants overrode the Head of Army Legal in Iraq (who thought that the ECHR did apply), and insisted that the applicable law was GCIII/IV with the effect that, if Iraqis were interned pursuant to GC IV Art 78 (as they were in their thousands), they had no Art 5 ECHR right at all. But what if Iraqis were interned at UK military facilities, particularly prior to
The United Nations Convention against Torture, a commentary, (2008) Manfred Nowak and Elizabeth MacArthur, 117, 415, 442. 38 Behrami v. France, Saramati v France, Germany and Norway (European Court of Human Rights) App. Nos. 71412/01 and 781 (unreported) (2007). 39 This is a forthcoming application for judicial review about the UKs detention policy in Afghanistan challenging the legality of transferring detainees from the jurisdiction of the UK to that of the Afghan authorities in circumstances where there are substantial grounds for believing there will be breaches of Arts. 2 or 3 ECHR in these circumstances. The evidence to that effect includes a significant number of reports from the UN Assistance Mission in Afghanistan. 40 This according to the transcript of the court martial proceedings in relation to the death of Baha Mousa who was detained by UK forces in September 2003. Over a 36 hour period he was hooded, stressed, deprived of sleep, deprived of food and water, beaten and kicked to death. He died of 93 different injuries.
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UNSCR 1546 when there could be no question of the Art 5 ECHR right being qualified in any way by the operation of Arts 25 and 103 of the UN Charter?41 After the decision of the House of Lords in Al-Skeini we now know that there is an Art 5 ECHR right in that situation, so that right and the power to intern under Art 78 GC IV are in direct conflict. The questions how to resolve that conflict, and whether Soering/Chahal applied when UK forces in Iraq handed detainees over to the Iraqi authorities, have to be resolved soon in the case of Al-Sweady,42 and are of critical importance for Afghanistan too. The Greenwood expert evidence in the Canadian case is that the applicable law for TCNs within ISAF consisted only of Common Article 3 to the Geneva Conventions and customary international law. Arguably, that is the very minimum of legal standards. What was the applicable law whilst the UK was an Occupying Power, that is, until 28 June 2004, and what was it after that date when UNSCR 1546 purported to end the occupation but keep in place aspects of the law of occupation, such as the power to intern for imperative reasons of security. That is an important question if you happen to be one of the Iraqis in the Al-Sweady case interned in May 2004 until October 2004 and then handed over to the Iraqi authorities. Besides the conflict of laws question above what was the applicable law in respect of procedural standards? Did one have the right to be represented by a lawyer at a judicial review as to whether you were, in fact, such a risk that you could be interned at all for imperative reasons of security? In East Timor INTERFET did apply these procedural safeguards why not in Iraq? One last question concerns the extraterritorial applicability of UNCAT and what difference it would make if the Coalition in Iraq and ISAF in Afghanistan were bound by its provisions. In the public law proceedings of Al-Sweady there can be no question of redress in the form of, for example, damages for the terrible beatings suffered by the survivors in the fields, as Al-Skeini excludes ECHR jurisdiction. One argument, however, is that the absolute prohibition on torture is a jus cogens norm and erga omnes obligation, which is made effective by the substantive obligations of Part 1 of UNCAT, which should in turn be treated as customary international law. Accordingly, and notwithstanding the UKs determination to do no more than criminalise torture as required by Art 4 UNCAT, all of Part 1 becomes part of UK common law and an effective accountability strategy needs to include UNCAT jurisdiction within it. The legal debate about international human rights issues should focus not just on the specific violations of the US in Guantanamo Bay, Abu Ghraib or Bagram Airbase, but on how these violations must be seen in the context of the whole project pushing for lack of legal protection and accountability and, specifically, on the key role of the UK. Too much of the debate is on what the US did (as if somehow the UK is any better, or operates according to different rules), or on what the UK may have done through, say, MI5 in Pakistan, or on UK complicity on extraordinary renditions. These are important aspects of the project we need to resist, but too
In Al-Jedda H.L. the House of Lords was asked to decide to resolve the conflict of laws between Art.5 ECHR and an Art.78 GCIV power extended beyond the occupation by UNSCR 1546. It decided, wrongly in my view, that to a limited extent Mr Al-Jeddas Art.5 right could be qualified by the adoption of UNSCR 1546 but only insofar as inherent in the need to intern for imperative reasons of security (Lord Bingham). In Al-Sweady this conflict of laws issue must be addressed head on. 42 R (on the application of Al-Sweady and others) and Secretary of State for Defence concerns legal issues arising from allegations that in May 2004 UK forces in a military facility executed 20 Iraqis and tortured another 9 survivors who are now the Claimants in judicial review proceedings. The survivors were interned by the UK from 14 May 2004 to early October 2004 and then transferred to the Iraqi authorities despite concerns about torture and ill-treatment in Iraqi detention centres expressed by the UN Assistance Mission for Iraq.
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much emphasis is being placed upon these issues to the exclusion of other equally important issues as addressed in this Opinion. Not only is it imperative to see the context of the legal issues but just as imperative to analyse the evidence as to what the UK actually did do in, say, Iraq. Because the House of Lords found in Al-Skeini that there was ECHR jurisdiction in the Baha Mousa case, the UK Government has been forced to hold a public inquiry under the Inquiries Act 2005. This is because it must satisfy the adjectival duties that protect Arts. 2 and 3 of the ECHR. Leaving aside the well trodden arguments in the Northern Ireland context as to whether an inquiry under the 2005 Act can be compliant with the relevant Strasbourg and domestic caselaw this is a significant development. A forthcoming public inquiry will explore a number of systemic issues including how it came about that the 5 banned techniques, that is, hooding, stressing, sleep deprivation, food and water deprivation and the use of noise returned as standard operating procedure for all UK battle groups in Iraq. Such an inquiry is of critical importance in the light of the evidence that has emerged from a combination of the 6 months Court Martial focussing on Mousas death, and a number of other cases concerning what the UK did in South Eastern Iraq pursuant to its detention policy, namely, that UK forces, whilst detaining Iraqi civilians in military facilities, reintroduced the 5 techniques banned in 1972 and the subject of Ireland v UK (1978) and killed an unknown number of detainees; and used sexual and religious humiliation techniques. Further, UK interrogators were trained to hood and stress prior to the 2003 invasion, the policy of hooding being written and reflective of NATO policy. All Battle Groups were hooding with up to 3 sandbags or even old plastic cement bags despite temperatures of up to 60c. There have also emerged shocking allegations including that, in May 2004, UK forces executed 20 Iraqis in a military facility, tortured another 9 who survived, and mutilated bodies in various ways (whether before or after death is unknown). It should be borne in mind that, when a state has custody over others who are accordingly particularly vulnerable, there is a special duty to respond to these type of allegations.43 Thus it is that I vent some frustration, but not with those state actors who are responsible, because the accountability project for this sorry state of affairs is well under way. What concerns me is the fact that most of civil society seems to be blissfully unaware of most of these occurrences, despite much of the information being public knowledge for a long time. We seem, as a nation, to be obsessed with what the US has been doing in, say, Guantanamo Bay, or with its policy of extraordinary renditions. But if what the UK did in Iraq had received a fraction of this attention, the game would now be up for those responsible. Whilst it is fashionable to focus on US interrogation techniques, the UK seem to have been responsible for more Iraqi deaths in detention. Secondly, our techniques of torture, used in Northern Ireland in the 1970s and since resurrected despite decades-old government commitments to the contrary, clearly pre-date anything the US have done, and are reflected in US illegal techniques. Thirdly, we used all of the techniques used by the US in Iraq with the exception (as far as I am aware) of flashing lights, loud music and dogs. Indeed, the UK may have been worse than the US in terms of incidents of Article 2 or 3 violations in detention cases measured as a ratio to troop numbers. None of this should come as a surprise. We planned the Iraq war with the US. We were Joint Occupying Powers. We co-ran the Theatre Internment Facility at Camp Bucca. There we had two compounds and the US had six. How could these two forces, in these circumstances, operate

43

See further my written submission to the Joint Parliamentary Human Rights Committee on 29 April 2008

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different Rules of Engagement and take a different approach to extracting intelligence and maintaining the shock of capture? Of course, it is human nature to shy away from all this after all we pride ourselves on our commitment to human rights and the rule of law but if we are to learn lessons for the future so that these terrible violations can never recur we do need to face ourselves.

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SECURING OUR FUTURE THROUGH EXCEPTIONS TO THE RULE OF LAW AND DEMOCRACY

By Kamil Majchrzak, German-Polish lawyer and journalist, March 20, 2009

More than ever before, one of the most important functions of todays state, which holds a monopoly on the legitimate use of physical force, is the guarantee of our security. Ever since the attacks on September 11th, 2001, both intelligence services and the North Atlantic Treaty Organization (NATO) have considered the suppression of terrorism to form part of the principal axiom of the discourse on new threats to security. Nevertheless, recent changes to security policy and, in effect, the control over society can only be understood by taking into account present socio-economic conditions. Therefore, when critiquing the deterioration of international relations and public international law by modern security policies, one must address both the instruments of such security frameworks and their societal foundations.44 Although collaboration between intelligence services and armed forces raises questions under constitutional law, concerns about threats to peace and democracy focus solely on the alleged existence and operation of terrorist groups. Consequently, the threats to democracy that arise from the gradual decline of the rule of law and the growing lack of control over a civil-military collaboration have been neglected by scientists and politicians alike. Martin Scheinin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has introduced his latest report in March 2009, and has reached a similar conclusion. During his inquiries, he finds that a lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies. Such unlawful conduct may have been condoned or even secretly directed by government officials.45 Over 200 years ago, German philosopher of law Immanuel Kant researched the necessary legal preconditions for the creation of a lasting peace in his philosophical sketch, Perpetual Peace, where he was one of the first to recognize the risk in creating secret articles in contracts under public law. Kant indicated that the existence of secret documents within an international collaboration based on contracts under public law was contradictory. Even in the preliminary article of his sketch on peace, he demands that no treaty of peace shall be held valid in which there is tacitly reserved matter for a future war. These many years later, this claim expressed by Kant remains relevant. Western industrialized countries try to anticipate the existence of an alleged public international law declaring it law of peace that grants security and wealth. However, on the very occasion of its adoption, violation of secret reservations are established on both political and legal levels.

Tobias Singelstein/Peer Stolle, Die Sicherheitsgesellschaft (2008), 145. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin [Scheinin Report], p. 7, available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf
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One of the most well-known examples is the striking breach of jus cogens norms, such as the absolute prohibition of torture in regards to so-called unlawful enemy combatants. The issue of collusion and nondisclosure by the security-military complex in democratic states was long neglected and thus separated from the context of intelligence operations. Even though human rights violations committed during the War on Terror were typically linked to the activities of civil and military intelligence services, neither legal scholars nor human rights activists paid due regard to this issue of high significance. Scholars, who work on issues that rarely focus on nondisclosure and specialized literature, risk being marginalized. Therefore, it is of utmost importance to review the past 60 years of NATO from a critical perspective. Sixty years into the history of NATO amounts to 60 years of a lack of public knowledge concerning fundamental question of security, the development of militaryintelligence cooperation, the partial abolition of the rule of law, the attempts to legalize torture, and the creation of secret armies in order to control and threaten their own populations. The absence of monitoring of NATO's activities NATO was founded in the final stages of World War II and, at the same time, was overshadowed by the beginning of the Cold War. The disastrous atomic bombings of Hiroshima and Nagasaki provided the opportunity for Western nations to shift from the conventional warfare of WWII to the clandestine operations of the Cold War. Despite Kant's objections about the practice of collusion, security agencies have been unquestionably permitted to take extreme measures against the alleged originators of terror within the context of the War on Terror, but why are they hiding behind such a thick wall of secrecy? Is democracy not strong enough to handle the effects of that much public information? If not, what kind of democracy do we live in? Since the ratification of the Washington Treaty46 in April 1949, NATO has undergone major changes. Emerging merely as a defense alliance against the Soviet Union, it soon transformed into an organization dealing with crisis management, and subsequently became an intervention army with global applicability. Today, high-ranking NATO officials are responsible for defending against a variety of challenges relating to the dark side of globalization. This euphemism refers to problems such as imminent climate change, the energy crisis, the food crisis, the suppression of uncontrolled migration, human trafficking, terrorism and alleged threats to state security posed by HIV and SARS.47 The paradigm shift has stemmed from the vision of Full Spectrum Dominance, another euphemism describing complete supervision over all of the elements within the battlespace. Today, this military concept seems to have transgressed into the social realm, defining the public sphere as a battlespace. From the human rights perspective, the War on

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Washington Treaty, available at: http://www.nato.int/docu/basictxt/treaty.htm On the eve of its 60th birthday, five Generals have called for NATO to reinvent itself. See Towards a Grand Strategy for an Uncertain World Renewing Transatlantic Partnership, available at: http://www.csis.org/media/csis/events/080110_grand_strategy.pdf

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Terror, with its inhuman practices against detainees and suspected terrorists, deserves the most severe consequences of this evolution. Despite this broadening of objectives, the founding Treaty of the defense alliance has been unchanged for 60 years now. Party States have never publicly questioned the distinctly defensive character of the 1949 treaty even though it has lost its original raison dtre with the dissolution of the Soviet Union in 1991. Supporters of the expansion of NATOs mission mandate argue that the Alliance Strategic Concepts are legitimized through Article 4 of the Washington Treaty.48 Nevertheless, Article 4 only addresses provisions for consultations and does not recognize the use of military force. It is debatable whether such expansions of the treaty are lawful at all, given that they take place on an informal level without the approval of national Parliaments and/or Party States reviewing the Treaty.49 In any case, informal decisions neither establish any legal certainty nor are they able to guarantee an adequate level of democratic control. Also, they are not binding under public international law and never should be. These actions raise even more questions when considering that NATO officials and government representatives operate in an area outside of law; meaning national Parliaments cannot enforce their right of scrutiny, and norms of public international law seem inapplicable. In this regard, UN Special Rapporteur Martin Scheinin argues that the lack of comprehensive legal provisions governing the mandate of all intelligence services and their special competences are the crucial element behind the lack of legal responsibility.50 Currently, the Party States also apply their defensive stance to secret operations, such as the secret extraordinary rendition program of the CIA. According to a report by Special Rapporteur Claudio Fava, European Union (EU) member states have agreed, inter alia, to grant blanket overflight and stopover clearances to CIA-operated aircraft. This was allegedly decided during an informal meeting of the North Atlantic Council on 4 October 2001 concerning the implementation of Article 5 of the North Atlantic Treaty.51 On 7 December 2005, an informal transatlantic meeting was held between EU and NATO foreign ministers, as well as US Secretary of State Condoleezza Rice. Fava is determined that, during this meeting, member states received knowledge of the secret program of extraordinary rendition, even though all official interlocutors of the Temporary Committee provided inaccurate information on this matter.52 In order to implement this secret program, the CIA not only collaborated with national intelligence services but, above all, with the infrastructure of NATO. For instance, Abu Omar,
See Linda D. Kozaryn, NATO Updates Strategic Concept, available at: http://www.defenselink.mil/news/newsarticle.aspx?id=41844 49 The German Constitutional Court has stressed in this context, that the rights of the German Parliament from Art. 59 para.2 German Constitution are not affected, even if the plaintiffs where arguing that the German Government was participating in an expansion of the Washington Treaty which have overstep the limits of the foregoing law requiring approval to join the NATO. See BVerfG, 2 BvE 2/07 from 29.3.2007, No. 12, available at: http://www.bverfg.de/entscheidungen/es20070329_2bve000207.html 50 See Scheinin Report, p. 8, supra note 2. 51 Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)) by the Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners [Claudio Fava Report], available at:http://www.europarl.europa.eu/meetdocs/2004_2009/documents/a6/p6_a(2007)0020_/p6_a(2007)0020_en.pdf 52 See Claudio Fava Report, supra note 8.
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who was recognized as a refugee by Italy, was kidnapped by the CIA in Milan in February 2003, where he passed through the NATO military base Aviano. Afterwards, he departed the NATO military airport in Ramstein, Germany toward Egypt, where he was kept incommunicado and tortured until 2007.53 The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights emphasized the negative consequences of this form of collaboration between intelligence services. Even if individual Party States are not directly involved with the practice of torture, they are still willing to utilize information obtained from other countries and other intelligence services which were acquired by means of torture.54 The nondisclosure of information Another questionable development concerning NATO's secrecy policy is the signing of special agreements by Party States that allow the nondisclosure of information dealing with basic state actions which should always be based on the rule of law. Interestingly enough, these decisions were never shared with the public. When the Security within the NATO C-M(2002)49 document was published by the Hungarian Civil Liberties Union (Trsasg a Szabadsgjogokrt) on 17 June 2002, it marked the first time that any information, namely a typology of classification, was provided to the public. Even information regarding the existence of classified documents is subject to an obligation to maintain secrecy.55 Considering that states are obligated to respect rule of law, this practice does not seem to conform to a constitutional democracy. In 22 November 1990, in the resolution on the Gladio affair, the European Parliament (EP) was already condemning the creation of manipulative and operational networks run by state secret services in collaboration with NATO working to destabilize the democratic structures of member states. In the same resolution, the EP vigorously protested the assumption by certain US military personnel at SHAPE and in NATO of the right to encourage the establishment in Europe of a clandestine intelligence and operation network.56 Even today, nothing seems to have changed because there has been a lack of elucidation of these events. Sixteen years after the EP resolution was published, Rapporteur Claudio Fava felt the need to repeat these critics on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners in his report. Regarding the CIAs torture-linked flights, he criticized the existence of clandestine operations involving intelligence services and military organizations without adequate democratic control.57 After a surge in democratization led to the fall of the Berlin Wall, most East European States enacted very liberal policies aimed at facilitating public access to information. However, shortly before joining NATO, those same states passed restrictive information-protection laws and initiated special regulations to maintain secrecy respectively.
See ECCHR, CIA Extraordinary Rendition Flights, Torture and Accountability A European Approach (2009), 80-87, available at: http://www.ecchr.eu/index.php?file=tl_files/Dokumente/ECCHR_Rendition_SecondEdition_online.pdf 54 Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, Assessing Damage, Urging Action (2009), 85, available at: http://ejp.icj.org/IMG/EJP-Report.pdf 55 See http://www.freedominfo.org/news/20060921.htm 56 European Parliament Resolution of 22 November 1990 on the Gladio affair, No. C 324 of 24/12/1990, 0201. 57 See Claudio Fava Report, supra note 8.
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These secret quasi-agreements were never ratified by national Parliaments but nevertheless were used, for example, by the Polish Military Information Services (Wojskowe Su by Informacyjne, or WSI) to guarantee the security of the CIA's black sites in Poland. This obviously conflicted with the extant laws regarding freedom of information. Moreover, they created controversy over the constitutionally guaranteed basic rights on information in the respective countries. According to the research of Dick Marty, the chairperson of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE), it must be mentioned that the secret interrogations of terror suspects in Poland were under the highest NATO classification, mysteriously named Cosmic Top Secret.58 The attacks of 11 September 2001 have caused an unanticipated international exchange of data between intelligence services. Thus, a Threat Intelligence Unit was founded at the NATO Congress in Istanbul in 2004.59 This unit relies on resources from the civil and military secret services of NATO Party States as well their partner countries to fight so-called terrorism. It cannot be excluded that special units, like those mentioned above, are laundering information about torture into security analyses. Nevertheless, in recent years, the civil-military cooperation has become more visible due to the internal presence of the military. Such actions pose basic questions of constitutionality and raise concerns over their governing ideology. In Germany, for example, applications by police who seek technical administrative assistance with the army have become a routine to civil-military cooperation.60 However, this is surprising considering the disputable legal ground for this routine. Based on Article 87a (2) of the German Constitution, the administrative assistance is restricted to assistance of non-defensive character.61 However, during the G8 Conference in Heiligendamm, several tornado-fighters, jet bombers and Fennek-Armoured Reconnaissance vehicles were used to keep protesters under heavy surveillance. In other countries, there is a similar development. NATO equipment is used specifically against members' own populations. At the 2008 European Five Football Championship in Switzerland, as well as during the investiture of the Pope, five NATO AWACS were used. Moreover, three were used before, at the 2005 G8 Conference in Gleaneagles, and another three at the 2007 G8 Conference in Heiligendamm. This civil-military cooperation will be extensively used during the upcoming NATO summit in Strasbourg to prevent against demonstrations.62 It is illogical to pretend that such aircrafts, known for their military use, can be used within the state as an instrument that provides assistance of non-defensive character.
58

See Dick Marty, Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report (2007), available at: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc07/EDOC11302.htm 59 Dagmar de Mora-Figueroa, NATOs response to terrorism, available at: http://www.nato.int/docu/review/2005/issue3/english/art1.html 60 Christoph Marischka, Militarisierung bis zum Mckenschutz - Amtshilfe um Heiligendamm, available at: http://www.imi-online.de/download/CM-Aug07-G8.pdf 61 Aktueller Begriff, Der Einsatz der Bundeswehr im Inneren, available at: http://www.bundestag.de/wissen/analysen/2007/Der_Einsatz_der_Bundeswehr_im_Inneren.pdf 62 Christoph Marischka, Lnderbergreifender Ausnahmezustand im April, available at: http://www.heise.de/tp/r4/artikel/29/29668/1.html

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International Humanitarian Law Another striking situation, created by the existence of a legal gray area, lies in the creation of Rules of Engagement (RoE), which are also classified. These rules are developed for each military action performed by NATO. They touch the very core of the constitutionality of state action, as they regulate the use of force. For international operations in particular, the classification of the Rules of Engagement counters the recognition of public international law, especially the protection of civilians and the treatment of prisoners of war. The NATO Contracting States may be bound to comply with public international law, but the practices of the US in particular display the attempt to deprive persons of their legal protection if suspected of being a so-called unlawful enemy combatant.63 In addition, the alarming developments, the European legal practice also raises concerns. In response to the NATO attacks on civilian objects during the bombardment of Yugoslavia in 1999, the European Court of Human Rights (ECtHR) declared a complaint on behalf of the victims as inadmissible. According to the ECtHR, the event in question took place beyond the jurisdiction of the attacking states.64 However, the nondisclosure of NATO affects much more than those aspects already mentioned. The collaboration between the 27 member states of the EU (21 of which are also Party States to NATO) is legally stipulated in various contracts known as the Berlin Plus agreement.65 In this case, parts of these agreements are not disclosed to the public, such as the Framework Agreement between the NATO Secretary General and the EU High Representative for the Common Foreign and Security Policy. These informal special security contracts, and thus the Framework Agreement in general, are not legally binding. This indicates a new pragmatism between NATO and the EU. With issues of security-political aspects, regulations are often left undefined in order to omit both factual supervision as well as the possibility to control arbitrary decisions of NATO officials and government representatives. The Washington Treaty Since the dissolution of the Soviet Union, NATO Party States have repeatedly ignored the clear and literal meaning of Article 5 of the Washington Treaty. This article explicitly states that member states can only perform self-defense in the event of an armed attack.66 According to the UN Charter, this reiterates the inherent right of individual or collective self-defense. Especially because the regulation refers to the right of self-defense in Article 51 of the UN Charter. Furthermore, Article 7 of the Washington Treaty states that self-defense does not affect, and shall not be interpreted as affecting in any way, the rights and obligations listed under the

See the Supreme Court decision in the Boumediene v. Bush case. The Court On decided on June 12, 2008 that the prisoners had a right to the habeas corpus under the United States Constitution and that the Military Commissions Act (MCA) established in 2006 was an unconstitutional suspension of that right, available at: http://ccrjustice.org/files/Supreme%20Court%20Decision%20Boumediene.pdf 64 Decision as to the admissibility of Application no. 52207/99 of 12 December 2001 (Grand Chamber) in the case Bankovic and Others v. Belgium and 16 Other Contracting States), available at: http://www.menschenrechte.ac.at/orig/02_2/Bankovic.pdf 65 See Berlin Plus agreement, available at: http://www.nato.int/shape/news/2003/shape_eu/se030822a.htm 66 UN General Assembly Resolution 3314 (XXIX) concerning the Definition of Aggression.

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Charter of the Parties which are members of the United Nations, or the primary responsibility of the UN Security Council for the maintenance of international peace and security. However, with the transition from WWII to the Cold War, it became apparent that Western industrialized countries would view terms such as peace, security and democracy as intrinsically linked to a denomination of the capitalist economic system. Concerning the history of several Latin American states, and also Iran and even Europe, the consequences resulting from this are disastrous since democratic states are theoretically able to alter the economic system through elections. Moreover, Article 2 of the Washington Treaty clearly shows that the defense alliance holds an economic component. The member states will seek to eliminate conflict in international economic policies and also encourage economic collaboration between any or all of them. NATO does certainly not want to duplicate other specialized economic organizations but rather aims at combining economic relations and security-political issues. For this purpose, the NATO Economic Committee was founded. Secret Armies A scandalous revelation that arose in October 1990 proves the significance of this new ideological direction. Italian Prime Minister Guilio Andreotti revealed the existence of an Italian stay-behind organization integrated into the NATO network. In this context, the June 1959 report of the Italian military secret service, Servizio di Informazioni delle Forze Armate (SIFAR), entitled The special forces of SIFAR and Operation Gladio became public67. Subsequently, the Italian Senate started investigating the existence of such an Italian branch within NATOs secret network68. The final report of the Senate confirmed, among other things, information that the right-wing extremist Vincenzo Vinciguerra69 revealed in a criminal proceeding in 1984. At this time, Vinciguerra testified that, during the 1960s and 1970s, the secret army Gladio was involved in terrorist attacks against civilians in the course of the fight against left-wing groups. This Italian scandal revealed that, since the 1950s, most NATO member states maintained secret armies with secret arsenals, which operated outside the control of Parliaments. These armies
See http://www.php.isn.ethz.ch/collections/colltopic.cfm?lng=en&id=20213&navinfo=15301 Senato della Repubblica, Commissione parlamentare dinchiestra sul terrorismo in Italia e sulle cause della mancata individuazione dei resposabili delle strategi: Il terrorismo, le stragi ed il contesto storico-politico (1995) [Senato f Italy], available at: http://www.php.isn.ethz.ch/collections/colltopic.cfm?lng=en&id=20193&navinfo=15301. See also Senato della Repubblica,, Decisioni, adottate dalla Commissione parlamentare d'inchiesta sul terrorismo in Italia e sulle cause della mancata individuazione dei responsabili delle stragi nella seduta del 22 marzo 2001, in merito alla pubblicazione degli atti e dei documenti formati o acquisiti dalla Commissione medesima (2001) http://www.senato.it/leg/13/BGT/Schede/docnonleg/5652.htm 69 Vincenzo Vinciguerra is former member of the neo-fascist Avanguardia Nazionale (National Vanguard) and Ordine Nuovo (New Order). Currently serving a life-sentence for the murder of three policemen by a car bomb. The Italian prosecutor Felice Casson found out that the explosive was what used by NATO, and was actually provided by the secret army, Gladio. Vincenzo Vinciguerra's testimony that SID protected him and helped flee to Spain. He even mentioned NATO as the behind supporter of terrorist attacks performed by the neo-fascist organization. See also Gunther Latsch, Die dunkle Seite des Westens, DER SPIEGEL, No. 15/2005, available at: http://wissen.spiegel.de/wissen/image/show.html?did=39997525&aref=image035/E0514/ROSP200501500480050.P DF&thumb=false
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perpetrated several assaults against their own populations. These secret anti-communist resistance groups, responsible for several blatant terrorist attacks, were also supported by states that officially pronounced to be neutral and were not members of NATO. Hence, even the secret army of Switzerland, the so-called P-26, was indirectly linked to NATOs secret network. NATO coordinated and controlled this secret network of paramilitary formations by means of the Allied Clandestine Committee (ACC), which forms part of the Supreme Headquarters Allied Powers Europe (SHAPE) and the Clandestine Planning Committee (CPC). Moreover, the secret armies were partially financed by the CIA itself. The CIA, along with British secret service MI6, provided assistance by equipping and training the paramilitary groups while NATO was responsible for questions of coordination. Furthermore, the Belgian Senate revealed that a secret warfare network existed even before the foundation of NATO. In early 1949, the Clandestine Committee of the Western Union (CCWU) was founded and subsequently integrated into NATO. Since 1951, the CCWU has operated under the name CPC.70 The CPC had the responsibility to militarily prevent left-wing groups from assuming political control in the event of a communist invasion within Western Europe, or perhaps an inconvenient outcome of a democratic election. Research by historian Daniel Ganser71 of ETH Zrich has proven that such secret armies not only existed in Italy but in most Western European countries.72 They were known to operate in France, Belgium, the Netherlands, Denmark, Sweden, Finland, Turkey, Spain, Portugal, Austria, Switzerland, Greece, Luxembourg and Germany.73 However, it was only in Italy, Belgium and Switzerland that investigations took place in attempt to clarify the activities of these secret armies. The strategy of fighting the enemy within or the strategy of tension was fundamentally based on psychological warfare. The example of Italy demonstrates that these tactics were meant to cause a national state of terror in order to achieve certain political aims. In other examples, Greece's secret army 'Lok' actively supported the military coup d'etat in 1967. The 1980 attacks during the Oktoberfest in Munich, which left 13 people dead and over 200 severely injured, were supposedly committed with weapons from the arsenal of a German secret army. In Belgium, the secret army was allegedly involved in the Brabant assaults in which people were randomly shot in shopping malls, leaving 28 people dead.74 Officially, the Italian scandal prompted the termination of secret armies, but some states have never even admitted the existence of such armies.75
Snat de Belgique, Commission d'enqute charge d'examiner les rvlations rcentes quant l'existence en Belgique d'un rseau de renseignements clandestin international connu sous le nom de "Glaive - Gladio" (1990) [Senat of Belgium], 94, available at: http://www.senate.be/lexdocs/S0523/S05231297.pdf 71 Daniele Ganser, NATO's secret armies: operation Gladio and terrorism in Western Europe (2005). 72 Daniele Ganser, The Secret Side of International Relations: An approach to NATOs stay-behind armies in Western Europe, available at: http://www.psa.ac.uk/journals/pdf/5/2005/Ganser.pdf 73 See Das blutige Schwert der CIA, DER SPIEGEL, No. 47/1990, available at: http://wissen.spiegel.de/wissen/image/show.html?did=13501822&aref=image036/2006/05/15/cqsp199004700180021.pdf&thumb=false 74 Daniele Ganser, Terrorism in Western Europe: An Approach to NATOs Secret Stay-Behind Armies., available at: http://www.php.isn.ethz.ch/collections/colltopic.cfm?lng=en&id=15301 75 See Swiss Parliamentary Report: Bericht der Parlamentarischen Untersuchungskommission zur besonderen Klrung von Vorkommnissen von groer Tragweite im Eidgenssischen Militrdepartement, Bern, November 17,
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In the course of the Italian scandal, the secret 1970 US Army Field Manual 30-31B, signed by General Westmoreland, was discovered. This document, the authenticity of which is challenged by US authorities, was also discovered in the context of a Belgian Parliamentary Inquiry. The Parliament even cites parts of this document. The document describes the execution of so-called false flag operations, meaning manipulated terror attacks, provocations and the overall radicalization of left-wing groups in order to create the impression of a communist threat. There may be times when HC [Host Country] governments show passivity or indecision in face of Communist or Communist-inspired subversion, and react with inadequate vigor to intelligence estimates transmitted by US agencies. Such situations are particularly likely to arise when the insurgency seeks to achieve tactical advantage by temporarily refraining from violence, thus lulling HC authorities into a state of false security. In such cases, US Army intelligence must have the means of launching special operations which will convince HC governments and public opinion of the reality of the insurgent danger and of the necessity of counteraction. To this end, US Army intelligence should seek to penetrate the insurgency by means of agents on special assignment, with the task of forming special action groups among the more radical elements of the insurgency. When the kind of situation envisaged above arises, these groups, acting under US Army intelligence control, should be used to launch violent or non-violent actions according to the nature of the case. Such actions could include those described in FM 30-31 as characterizing Phases II and III of insurgency. In cases where the infiltration of such agents into insurgent leadership has not been effectively implemented, it may help towards the achievement of the above ends to utilize ultra-leftist organizations. 76 It is important to emphasize that the disintegration of secret armies can only be part of a comprehensive solution to the problem, as the overall usage of social and psychological manipulation remains intact. Therefore, and particularly in the context of NATO's War on Terror, it is important for human rights lawyers to make qualitative analyses of Western democracies. There is some evidence that the secret armies were meant to operate especially in times of peace. The Belgian Senate gives the example of the failed infiltration of the Dutch peace movement, which was intended to initiate violent acts.77 Moreover, there are indications that a similar strategy was recently applied against protests during the 2007 G8 summit in Heiligendamm,78 as well as in the context of strikes in Poland. In 2007, participants in a strike by nurses reported that persons not at all affiliated with the strike tried to infiltrate the protesters camp trying to convince them to commit crimes. The newspaper Gazeta Wyborcza confirmed the deployment of Polish Anti-Terrorist Forces as a measure to
1990 (PUK EMD Report), available at: http://www.php.isn.ethz.ch/collections/colltopic.cfm?lng=en&id=20197&navinfo=15301 76 Senat of Belgium, p. 81-82, supra note 27. 77 Senat of Belgium, p. 81-82, supra note 27. 78 Block G8: Polizei soll zu Provokateur Stellung nehmen, available at: http://www.jungewelt.de/g8/?id=190 sowie Polizei besttigt Einschleusen von Zivilbeamten, available at: http://www.spiegel.de/politik/deutschland/0,1518,487487,00.html

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disintegrate the strike. Gazeta Wyborcza also published the executive order that the Anti-Terror Department of the police headquarters in Warsaw sent to its regional police stations. This order called on all staff to gather information about the protesters and persons supporting the protesters. When the scandal came to the attention of the public, the spokesman of the Warsaw police, Mariusz Sokoowski, merely stated that these orders are commonly given. Supposedly, they were aimed to protect the nurses from being infiltrated by violent criminals and anarchists. This argument fits into the overall discourse of new security threats and the enemy within. The creation of an atmosphere filled with terror, fear and uncertainty facilitates state manipulation of public opinion. It is suspicious that, prior to the Iraq War in 2003, which conflicted with international law, the politicians responsible were desperately trying to establish a link between Iraq and the terrorist attacks on September 11th, as well as Iraq's possession of biological and chemical weapons. The evidence presented, however, turned out to be one of many lies involved in the War on Terror.79 The participation of the Swiss secret army, P-26, in NATOs secret program, as well as the extraordinary rendition program, indicates that the purpose of the network of secret armies was more than the prevention of violent political overthrows.80 There has never been an attempted political coup in Switzerland. Moreover, they have never had a single case of terrorism. In fact, the current discourse on security and the implementation of legal surveillance mechanisms deals with a politically, socially, racially and religiously defined enemy within. The methods and principles which NATO applied during the Cold War are yet to disappear and, since 1989, such methods have contributed to maintaining the military dominance of industrialized countries. At the same time, the methods were used to reorganize domestic surveillance mechanisms in the wake of the end of the Cold War. The genealogy of the enemy within doctrine When considering the policies of the post 9/11 War on Terror, it is necessary to examine their origin and the further development of the instruments, concepts and ideologies primarily developed to fight communism during the Cold War era. In his book L'ennemi intrieur, based on primary sources from the archive of the French cole militaire, French sociologist Mathieu Rigouste makes an important contribution to the examination of the origins of modern security policies and the instruments of the War on Terror.81 The roots of these questionable security policies applied during the War on Terror can be found in the French experiences with counter-insurgency in Indochina (1946-1954) and Algeria (1954-1962). LEcole franaise or the doctrine de la guerre rvolutionnaire remains one of the most important points of reference for international counter-insurgency.

On February 5, 2003 US Secretary of State Colin Powell declared to the UN Security Council: One of the most worrisome things that emerges from the thick intelligence file we have on Iraq's biological weapons is the existence of mobile production facilities used to make biological agents. The basis for this founding supposes to be the false declarations received through torture of the detainee Ibn al-Shaykh al-Libi. See also Jane Mayer, The Dark Side (2008), 135-138. 80 See http://www.amnesty.ch/de/aktuell/news/2006/bundesrat-muss-cia-fluege-ueber-die-schweiz-verbieten 81 This section is based on the groundbreaking research and findings by Mathieu Rigouste, L'ennemi intrieur. La gnalogie coloniale et militaire de lordre scuritaire dans la France contemporaine (2009).

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Rigouste argues that modern counter-terrorism strategies cannot be understood without considering the counter-insurgency experiences of colonial powers, particularly those of France in Indochina and Algeria. He discusses the integration of the enemy within doctrine into the public policies of the French state since the 1960s, as well as the growing importance of the enemy within doctrine in the US and thus in NATO. In regards to the experiences of the Fifth Republic and its colonies, Rigouste explains the development of this security paradigm while applying a socially and ethnically defined framework. His study provides a scheme to examine the recurring motives of counter-insurgency from the colonial times to the Cold War and, most recently, the War on Terror and the riots in the suburbs of Paris. Due to his thorough analysis of the progression of the state-led fight against migration movements and the structural peculiarities of the War on Terror, Rigouste was able to point out the alarming expansion of domestic surveillance mechanisms. In the context of the experiences of the Fifth Republic in its colonies, and by recognizing the economic dimension of this phenomenon, one is able to analyze the implementation process of the new security paradigm. Following the devastating defeat of French troops in the battle of i n Bin Ph in 1954, a process of rationalizing and systematizing the ideas and techniques of the counter-insurgency began. During La Bataille d'Alger in 1957, the so-called Office No. 5 was established in order to implement psychological warfare. The military assumed that the population of Algeria, an overseas department of France at the time, was worth protecting but at the same time a threat unto itself. Hence, counter-insurgency measures were intended to develop strategies that separated the population from insurgents in order to teach the population how to identify insurgents and to become immune to their influence. Mathieu Rigouste stresses that illness metaphors were a central element of the doctrine de la guerre rvolutionnaire (DGR). For example, the doctrine regards social riots as an ulcer, the population as a gangrene organ, and the military as the only surgeon able to remedy the disease. Such an approach inevitably causes the application of terror techniques by the military against their own civilian populations. The general justification for these measures against insurgents was that the enemy is hiding within the general public. Therefore, the fight against the enemy within and the means to achieve this end required no moral justification. Civilian victims were an expected collateral damage. The fight against the enemy within was declared, a priori, as a decisive struggle of Western civilization against the red sickness. From this stage, there is only a small step to exchange the communist barbarians with Muslim savages. A lecture of General Jacques Allard at a joint conference of the Institut des Hautes tudes de Dfense Nationale (IHEDN) and the Centre des Hautes tudes Militaires (CHEM), both institutions that played a crucial role in spreading the concept within the French army and political circles, clearly reveals the overall idea: The most important, the essential target is the population. It is the population that serves as the indispensable environment, a necessary cultural bouillon for the proliferation of the revolutionary virus. It is the water without which the fish cannot survive This quote very well demonstrates the shifting relations between the population and its state, which would ultimately lead to the populations immunization against revolutionary phenomena.

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At the beginning of the 21st century, France and many other states introduced comprehensive surveillance mechanisms in order to protect their populations from the enemy within, namely Islamism, terrorism, illegal immigration and urban violence. The enemy within doctrine helps to justify these comprehensive security measures. The French armys experimentation with new counter-insurgency techniques during the war in Algeria was widely acknowledged and utilized by the militaries of Western states. As early as 1953, French colonel Charles Lacheroy was invited to the US Pentagon and asked to report about the latest developments in psychological warfare in Algeria. When presented with a US battalion for Psychological Warfare Service, Lacheroy criticized their lack of understanding regarding political-military issues. One year later, General Jacques Allard organized a conference in Fontainebleu at NATOs Supreme Headquarters Allied Powers Europe (SHAPE). There he outlined the basic assumptions of unconventional warfare. Allard tried to convince NATO that the fight against insurgents in Algeria was part of the global fight against communism. The fight was thus presented as a proxy war for Western civilization. General Allard finished his speech by demanding the relaxation of legal provisions so as not to restrict important military operations. The deterioration of the rule of law regarding criminal law, criminology and the use of force between states in favor of comprehensive security policies, still characterizes he current era. Not surprisingly, the work of French counter-insurgency theorists like Roger Trinquier, David Galula, Jean Lartguy and Constantin Melnik are still acknowledged as an outstanding reference in Anglo-Saxon literature on counter-insurgency.82 In the current discourse about terrorism and the new threats of today, one should first ask who has the power to define the enemy and where is the legal basis to fight such an enemy. The longer we continue to passively accept these security policies, which cause a deterioration of public international and domestic law, we further depart from Immanuel Kants concept of a perpetual peace based on World Citizenship in respect of rule of law. To prevent this, one should not search for these threats abroad, but instead examine the democracies' respect of their own commitments.

See: Jean Larteguy, The Centurions (1962); David Galula, Pacification in Algeria, 1956-1958, RAND Corporation (1963); David Galula, Counterinsurgency Warfare, RAND Corporation (1964);Constantin Melnik, Insurgency and Counterinsurgency in Algeria, RAND Corporation, (1964); Roger Trinquier, Modern Warfare. A French View of Counterinsurgency (2006).

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