A third strategy in the struggle against terrorism has been regulation outside the law: the adoption of counter-terrorism measures that simply ignore international legal prescriptions and are undertaken covertly and with the deliberate purpose of avoiding international scrutiny or accountability. The practices of extraordinary rendition and secret detention centres are two major examples.

From very early on in the military and counter-terrorist measures that were taken after 9/11, concerns began to emerge about the manner in which persons captured on the battlefield or elsewhere were being processed. There were a number of dimensions of this problem: an awareness that there were specific detention facilities in places such as Guantánamo Bay but little knowledge of the identities of persons who were being held in those facilities. Second, there was concern that there were secret detention centres in certain countries in which detainees were being held by the US for the purposes of interrogation in a deliberate effort to remove them from the legal protections of the country in which they were located, the US legal system, and international scrutiny, whether by the ICRC under IHL or by other bodies. Third, there was concern that persons were being ‘rendered’ or returned by the US or other states outside any formal legal process to third countries, where there was a substantial risk that they might be subject to torture and/or in the expectation that the intelligence agencies of that country would use whatever methods were necessary to extract intelligence that would be of assistance to the anti-terrorist struggle. The disappearance of many individuals, their incommunicado detention, and the categorical denials that there were any such places, made it extremely difficult to ascertain the extent to which rights were being respected. It must have been clear to the officials involved, whether American or other, that what was involved in this type of behaviour was clearly inconsistent with international human rights standards and other international and national norms.

The attempt to assert human rights values in the face of determined action by governments to avoid public knowledge of what was going on has been an important aspect of the work of a number of human rights actors since 2001. Non‑governmental organisations played an important role, going to considerable lengths to attempt to identify persons who had disappeared and who, it was suspected, were being held in secret detention locations, and seeking to hold governments accountable by publicising that information and engaging with human rights institutions to assist them in taking these matters up with governments.

Where governments devote themselves to hiding their activities and refusing to confirm or deny claimed facts (or simply lying) in order to avoid public scrutiny, particular challenges are presented to civil society institutions. A critical component of a human rights response to such behaviour has to be the grinding work of fact‑finding, piecing together individual items of information to form a larger mosaic, and then using this material to challenge both government secrecy and unlawful behaviour. NGOs, the media, public bodies at the national level (such as parliamentary committees, human rights commissions or courts) and international human rights bodies all potentially have a role to play in putting together the pieces of the puzzle. It is a difficult task, and one in which government holds most of the cards. While it seems likely that much of the information will eventually emerge, this may take years, by which stage most of the damage will have been done.

The most prominent example of this in the context of the ‘war against terror’ has been the human rights community’s response to secret detentions and so-called ‘extraordinary renditions’. Despite denials of secret detentions outside the US (until President Bush’s open admission of such a program in September 2006),^[90] the US had held ‘high-value detainees’ (‘HVD’) in detention facilities in undisclosed locations in a number of countries in Europe and elsewhere. It is also now clear that in a significant number of cases, persons were transferred from US custody to countries where it was clear that there was a substantial risk of torture — and in some cases those returnees were indeed tortured after their return.^[91]

The uncovering of this story involved many actors at the international and national level, but various organs of the Council of Europe played an important role. Spurred on and assisted by NGOs and the media, they determinedly employed the public power of an international organisation and the political weapon of publicity to draw attention to what was going on, in an attempt to hold accountable at least some of the governments involved.

The primary arena of activity was the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (the Committee), whose Chair and Rapporteur on this issue, Swiss Senator Dick Marty,^[92] played a critical role, describing his efforts to uncover what had gone on with very limited resources as pitting ‘Mountainbike against Ferrari’.^[93]

The work spearheaded by Marty through the Committee was one of a number of responses by different parts of the Council of Europe to the media and NGO claims of secret detention centres, illegal transfers, and torture and other ill treatment. These suggested that these activities may have taken place on the territory of some member states of the Council of Europe (as well as elsewhere), with the complicity of those states. In particular, there were claims that secret detention centres had been run by the US on the territory of at least two member states, and that other member states may have permitted their territory and airspace to be used by Central Intelligence Agency (CIA) flights to carry out its program of ‘extraordinary renditions’.

The Committee took up the issue in late 2005,^[94] and appointed Marty as its Rappporteur on the issue.^[95] Around the same time, on 21 November 2005, the Secretary-General of the Council of Europe made use of his power under Article 52 of the European Convention on Human Rights^[96] to request an explanation from member states as to how their laws and practices provided protection against unacknowledged detention (including at the instigation of a foreign state) and details of any instances which had occurred since early 2002.^[97] This was by no means the Committee's or the Council's first post-9/11 engagement with the general human rights issues arising from the ‘war on terror’, nor with the specific actions of the US in relation to transfer and detention of persons claimed to be involved in terrorist activities (or suspected of this).^[98]

The Committee approached its work on a number of fronts. First, Marty sought a legal opinion from the European Commission for Democracy through Law (the Venice Commission) on the legality of secret detentions in the light of Council of Europe member states’ international obligations.^[99] The Commission is a body of the Council of Europe with considerable legal expertise and standing and the purpose of the request was to obtain an authoritative general statement of the relevant international legal issues; the Commission provided its opinion in March 2006.^[100] Second, Marty sought information from a number of European agencies (including the EU Satellite Centre and Eurocontrol) that held information about flights and certain sites. He also sought information from various governmental delegations to the Council and certain parliamentary delegations, and subsequently held interviews with NGOs, journalists, persons who claimed they had been detained in secret centres or clandestinely transported, and also with persons currently or previously employed in relevant governmental agencies (including intelligence agencies), among others.

Over the next 18 months, by piecing together the information from these sources, Marty presented three reports^[101] providing an account of the activities of governments, which showed in his view that there had been widespread violations of human rights in which member states of the Council of Europe had been complicit. In his June 2006 report, focusing on the alleged CIA rendition program relating to the transport and detention of high-value detainees and others and based on information from air traffic control authorities, and other sources, Marty concluded that:^[102]

By the time that Marty presented his next substantial report to the Committee and the Parliamentary Assembly in mid-2007, he considered that his earlier conclusions had received further support and that there was extensive and reliable evidence of systematic violations in which Council of Europe states had been actively or passively involved. He concluded that two secret detention centres (in Poland and Romania) had been part of the CIA operations as part of the HVD program, and that the program had been set up with the cooperation of European officials and kept secret under North Atlantic Treaty Organization (NATO) confidentiality rules. Marty also concluded that detainees were subjected to ‘inhuman and degrading treatment, sometimes protracted’ and that ‘certain “enhanced” interrogation methods used’ violated the prohibitions against torture and other ill treatment under European and UN human rights treaties.^[103]

The Marty reports provide a compelling account of the manner in which the arrangements between the US and various countries (including ones outside Europe) were reached, and the procedures for transferring detainees between various countries and the purposes for which this was undertaken. A number of the countries involved have denied the accuracy of the findings,^[104] while other critics have argued that the evidence supporting the conclusions is based on media reports or is unreliable. Marty has defended his findings, noting that all his findings were based on a variety of different sources, and all findings were corroborated from different sources.

While it is certainly true that for some of his information, Marty relied on (or at least started with) media and NGO reports, the use of air traffic control data supplied by various national and international authorities, the interviews with victims and present and former government officers, and the various statements by government officials on which he also relied, belie the criticism that the report has no solid evidential basis. Marty noted that the Committee was ‘not an investigating authority: we have neither the powers nor the resources … our task is … to assess, as far as possible, allegations of serious violations of human rights committed on the territory of Council of Europe member states’.^[105] While he plainly considered that the evidence was strong enough to reach firm factual conclusions, the primary responsibility lay with states to carry out proper investigations into the violations alleged to have taken place on their territory, and they had failed to fulfil that responsibility.

Marty also documented the unwillingness or refusal of many states to provide relevant information.^[106] He also notes that in some cases, states had issued flat denials of particular practices, yet subsequently incontrovertible evidence of them had emerged. Perhaps the most striking is the admission by President Bush on 6 September 2006 that indeed the CIA had been running an HVD program, which had involved detention of suspects in undisclosed locations. Marty also notes the ready resort by states to the invocation of national security grounds to justify the refusal to provide relevant information, not just to his inquiry, but also in proceedings brought before national courts by persons who alleged that they had been the victims of serious human rights violations at the hands of the governments concerned.

Although the story that emerges from Marty’s reports is the deliberate and systematic disregard of fundamental international human rights norms by the governments involved, there is also another dimension of these events, which reveals a different use of law and legal structures. Marty finds that some of the arrangements for the secret detention centres and illegal renditions were entered into under the framework of NATO cooperation arrangements, as well as by a series of bilateral agreements between various governments (generally at the agency level).^[107] Furthermore, he draws attention to what appears to have been an attempt by President Bush to confer the mantle of domestic legality on the CIA’s program by the signature on 17 September 2001 of a classified Presidential Finding, which granted the CIA significant new powers in relation to its covert activities directed against terrorism.^[108] These patterns of behaviour suggest that the intelligence agencies involved were not totally oblivious to the utility of law, but that theirs was a partial view, which saw a practical and political importance in using established or ad hoc international arrangements to pursue their goals and relying on domestic authorisations to protect themselves against liability under US law,^[109] while showing complete disregard for fundamental human rights standards. The only law that really appears to have mattered was domestic law — whether or not it was in flagrant violation of international law^[110] — and also the rules of the intelligence and military communities in the context of NATO and bilateral cooperative arrangements between intelligence agencies.

The work carried out by the Council of Europe and many other parties in uncovering the conduct of the government agencies involved in the secret detentions and illegal renditions demonstrates the significant challenges that face civil society and public institutions in holding governments accountable for human rights violations of this sort. The governments involved were determined to undertake secret operations in clear violation of international standards, and went to great efforts to conceal these from the public and our political institutions, to deceive the public when questions were raised, and to resist disclosure of information on national security grounds when persons affected sought to hold them to account through judicial or other proceedings. The resources available to uncover such conduct are often limited when compared with the resources governments devote to their concealment. It is only through concerted efforts by and collaboration among various public institutions at the international and national level, the media, NGOs and others — as seen in the Council of Europe inquiries — that the story can emerge, and trigger or reinforce further exercises in accountability in different forms at the national level.