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International law - prohibition on refoulement - remedies - Maher Arar v. John Ashcroft.

The prohibition on refoulement is a fundamental human right enshrined in both customary international law and treaty law. (1) In Arar v. Ashcroft, (2) the Court of Appeals for the Second Circuit considered plaintiff Maher Arar's claim for, inter alia, damages under the Torture Victims Prevention Act (T.V.P.A.) arising from his extraordinary rendition to Syria. (3) Arar alleged that the defendants, all U.S. government officials, rendered him to Syria with the knowledge or intention that he would be tortured and interrogated by Syrian authorities. (4) The Second Circuit held that Arar failed to state a claim under the T.V.P.A. and dismissed the case. (5)

On September 26, 2002, authorities at John F. Kennedy airport in New York detained Arar, a dual citizen of Syria and Canada, while he was in transit from Tunisia to Canada. (6) Arar was told that he was inadmissible to the United States because the U.S. government had determined he was a member of al Qaeda. (7) Pursuant to this determination, Director of the Regional Office of the I.N.S.J. Scott Blackman, authorized Arar's removal from the United States without further process. (8) Although Arar designated Canada as the country to which he wished to be sent, U.S. officials instead allegedly flew him to Jordan where he was handed over to Syrian officials, driven to Syria and placed in detention. (9)

In Syria, Arar was allegedly held in an underground cell six feet long and three feet wide for approximately twelve months. (10) During his detention, Arar claimed that he was subjected to "physical and psychological torture," including regular beatings and threats of severe physical harm. (11) Arar further alleged that the defendants provided Syrian authorities with information about him, suggested subjects for interrogation, and received "all information coerced from [Arar] during interrogations." (12)

Following his release from Syrian detention, Arar filed a civil action in 2004 against numerous individuals, including: former U.S. Attorney General John Ashcroft; Federal Bureau of Investigations (F.B.I.) Director Robert Mueller; Secretary of Homeland Security Tom Ridge; former Immigration and Naturalization Service (I.N.S.) Commissioner James W. Ziglar; Regional Director of the Regional Office of the I.N.S. J. Scott Blackman; and several other named and unnamed employees of the F.B.I. and I.N.S. (13) Arar alleged, inter alia, that the defendants "acted in concert with Jordanian and Syrian officials, and under color of Syrian law, to conspire and/or aid and abet in violating his right to be free from torture" in violation of the T.V.P.A. (14) Arar requested compensatory and punitive damages under the T.V.P.A. for violations of his international human rights. (15) The District Court dismissed Arar's complaint in August 2006. (16) On appeal, the Second Circuit Court of Appeals upheld the District Court dismissal of Arar's claims. (17)

The Alien Tort Statute (A.T.S.) grants the federal district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the "law of nations" or a treaty of the United States. (18) Torts in violation of the law of nations include, inter alia, torture, extrajudicial killing, war crimes, disappearance, and arbitrary detention. (19) To gain jurisdiction under the A.T.S., the plaintiff must show that the treaty is either self-executing and provides for a private right of action or, if the treaty is non-selfexecuting, that it has been implemented through domestic legislation. (20) Where a tort violates both "the law of nations" prong of the A.T.S. and the "treaty of the United States" prong of the statute, plaintiffs are not barred from raising claims under either prong of the A.T.S. (21)

Under customary law, the principle of non-refoulement prohibits States from rejecting, returning, removing, or expelling an individual to a country where there is a substantial risk of facing torture, cruel, inhuman or degrading treatment, or persecution. (22) The principle of non-refoulement is absolute, meaning a state may not derogate from the law under any circumstance. (23) The absolute prohibition on refoulement is a corollary to the jus cogens prohibition on torture. (24) Accordingly, some scholars assert that the customary prohibition on refoulement, like torture, is a jus cogens norm of international law. (25)

Under treaty law, the prohibition on refoulement is codified in Article 3 of the Convention Against Torture (C.A.T.), which provides "no State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." (26) As with the absolute prohibition on refoulement under customary law, derogation from article 3 of the C.A.T. is not permitted. (27)

The United States signed the C.A.T. on April 18, 1988 with the declaration that articles one through sixteen are not self-executing. (28) The United States has since implemented article three of the C.A.T. through section 2242(a) of the Foreign Affairs Reform and Restructuring Act (F.A.R.R.A.) of 1988, which states "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture...." (29)

F.A.R.R.A. does not provide an express statutory civil remedy for violations of the prohibition on refoulement. (30) Nonetheless, a plaintiff may bring suit under the A.T.S. for a violation of the prohibition on refoulement under the "violation of the law of nations" prong of the A.T.S., rather than as a violation of the C.A.T., as implemented by F.A.R.R.A., under the "treaty of the United States" prong. (31) Notwithstanding this apparent cause of action for victims of refoulement, the Government may still assert the state secrets privilege in cases involving extraordinary rendition to protect national security and strip the court of subject matter jurisdiction. (32)

Although Arar did not plead a theory of liability for refoulement under the A.T.S., the Second Circuit should have held, sua sponte, that defendants' alleged rendition of Arar to Syria with the knowledge or intent that Syrian officials interrogate him under torture states a prima facie claim of refoulement. (33) The court should have conducted an inquiry into the status of refoulement under international law and found that the C.A.T., state practice, opinio juris, domestic and international judicial decisions, and the writings of jurists establish the prohibition on refoulement as a rule of customary international law, if not a jus cogens norm. (34) Accordingly, the court should have held that a claim of refoulement is a tort in violation of the law of nations cognizable under the Alien Tort Statute. (35) The court should have noted that neither the absence of an express civil remedy under F.A.R.R.A., nor the non-self-executing nature of the C.A.T., bar a claim of refoulement provided the claim is based on a theory of liability under the "violation of the law of nations" prong of the A.T.S. rather than under the "violation of a ... treaty of the United States" prong. (36) Following this discussion of law, the Second Circuit should have remanded the case to the District Court to establish the facts and determine whether Arar is entitled to damages under the A.T.S. (37) On remand, however, it is foreseeable that the U.S. government would intervene in the case and assert the state secrets privilege to deprive the court of jurisdiction and bar Arar from proceeding with the case. (38)

In conclusion, the case of Arar v. Ashcroft (39) provided the Second Circuit an opportunity to check the executive branch's wartime powers by holding that extraordinary rendition amounts to refoulement in violation of the law of nations and therefore a remedy for victims of refoulement is available under the Alien Tort Statute. (40) Such a precedent might persuade the executive branch to end the practice of extraordinary rendition and begin to prosecute the war on terror according to the law of armed conflict and with respect for human rights. (41) Instead, the court dismissed Arar's claim and gave the executive branch free reign to continue the practice of refoulement through extraordinary rendition in violation of the law of nations. (42)

(1) SIR ELIHU LAUTERPACHT & DANIEL BETHLEHEM, THE SCOPE AND CONTENT OF THE PRINCIPLE OF NON-REFOULEMENT IN REFUGEE PROTECTION IN INTERNATIONAL LAW--UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION, 87-177, 163 (Erika Feller, Volker Turk and Frances Nicholson eds., Cambridge University Press 2003) [hereinafter LAUTERPACHT & BETHLEHEM] (defining customary prohibition refoulement). Lauterpacht and Bethlehem define the customary norm of refoulement as:
   No person shall be rejected, returned, or expelled in any manner
   whatever where this would compel him or her to remain in or return
   to a territory where substantial grounds can be shown for believing
   that he or she would face a real risk of being subjected to torture
   or cruel, inhuman or degrading treatment or punishment.


Id.; see also Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 10020 (1988), 1465 U.N.T.S. 85, reprinted in 23 I.L.M. 1027 (1984) [hereinafter C.A.T.] (signed by United States on April 18, 1988, entered into force on Nov. 20, 1994) (prohibiting state from expelling, returning, refouling or extraditing person to another State where there are substantial grounds person would be subjected to torture).

(2) 532 F.3d 157 (2d Cir. 2008).

(3) Id. at 163.

(4) Id.

(5) Id. at 192-93.

(6) Id. at 165.

(7) Id. at 166.

(8) Id. at 162. Blackman signed the order pursuant to 8 U.S.C. [section] 1225(c)(2)(B) (2008), 8 C.F.R. [section] 235.8(b) (2008), which provides that:
   If the Attorney General ... is satisfied on the basis of
   confidential information that the alien is inadmissible ... and,
   after consulting with appropriate security agencies of the United
   States Government, concludes that disclosure of the information
   would be prejudicial to the public interest, safety, or security,
   the Attorney General may order the alien removed without further
   inquiry or hearing by an immigration judge.


Id. at 162; 8 U.S.C.A. [section] 1225(c)(2)(B) (2008), 8 C.F.R. [section] 235.8(b) (2008). Similarly, sub-section one of 8 C.F.R. [section] 235.8(b), provides "[I]n accordance with section 235(c)(2)(B) of the Act, the regional director may deny any further inquiry or hearing by an immigration judge and order the alien removed. . ." 8 C.F.R. [section] 235.8(b)(1). This section is tempered by subsection four, which expressly states, "[t]he Service shall not execute a removal order under this section under circumstances that violate section 241(b)(3) of the (Immigration and Nationality Act) or Article 3 of the Convention Against Torture." 8 C.F.R. [section] 235.8(b)(4).

(9) Arar, 532 F.3d at 166.

(10) Complaint of Arar at paras. 51-58, Arar v. Ashcroft, No. 06-4216 (2nd Cir., Sep. 12, 2006) [hereinafter "Arar Complaint"].

(11) Id.

(12) Id. at paras. 55-56.

(13) Arar, 532 F.3d at 162-63.

(14) Id. at 200.

(15) Arar Complaint, supra note 10, at para. 24.

(16) Arar, 532 F.3d at 167. The District Court dismissed Arar's complaint on August 17, 2006 with prejudice, finding, inter alia, he failed to state an actionable claim under the T.V.P.A. Id.

(17) Id. at 194.

(18) Alien Tort Statute, 28 U.S.C. [section] 1350 (2006); see Sosa v. AlvarezMachain, 542 U.S. 692, 714 (2004) (holding Alien Tort Statute (A.T.S.) is essentially jurisdictional); Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003) (finding "the law of nations" synonymous with "customary international law"); Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (holding law of nations ascertained from works of jurists, state practice, and opinio juris) (quoting United States v. Smith, 18 U.S. 153, 160-61 (1820)); Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993 (entered into force Oct. 24, 1945) (enumerating sources of law as treaties, custom, general principles of law, national judicial decisions, and teachings of scholars).

(19) See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005) (holding mental torture violates law of nations); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005) (finding torture and extrajudicial killing violate international law); Higgins v. Islamic Rep. of Iran, 2000 WL 33674311 at 9 (D.D.C. 2000) (finding extrajudicial killing and torture violate law of nations actionable under A.T.S.); Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995) (holding torture, genocide, and war crimes violate the law of nations); Hilao v. Marcos (In re Estate of Marcos Human Rts. Litig.), 25 F.3d 1467, 1473-75 (9th Cir. 1994) (noting prohibition against torture is jus cogens norm); Filartiga, 630 F.2d at 880 (holding torture violates law of nations); Doe v. Saravia, 348 F. Supp. 2d 1112, 1157 (E.D. Cal. 2004) (finding crimes against humanity violate law of nations); Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1326 (N.D. Cal. 2004) (finding arbitrary detention violates law of nations); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002) (finding genocide, crimes against humanity, war crimes, arbitrary detention violate the law of nations); Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1149 (C.D. Cal. 2002) dismissed on other grounds, dismissal rev'd by Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007), reh'g en banc granted 499 F.3d 923 (finding genocide and war crimes violate law of nations); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1542-43 (N.D. Cal. 1987) (holding torture, extrajudicial killing, and arbitrary detention violate law of nations); Forti v. Suarez-Mason, 694 F. Supp. 707, 711 (N.D. Cal. 1988) (finding disappearance violates law of nations); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 440, 491 (D.N.J. 1999) dismissed on other grounds (finding war crimes violate the law of nations); Paul v. Avril, 901 F. Supp. 330, 334 (S.D. Fla. 1994) (finding arbitrary arrest and detention violates law of nations). Claims for torture may be brought under the A.T.S. despite the passage of the T.V.P.A. Sarei, 487 F.3d at 1223; Aldana, 416 F.3d at 1250; Cabello, 402 F.3d at 1156-58; Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 465 (S.D.N.Y. 2006); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 423 (S.D.N.Y. 2002) (awarding damages under both A.T.S. and T.V.P.A. for same incident of torture).

(20) BETH STEPHENS, JUDITH CHOMSKY, JENNIFER GREEN, PAUL HOFFMAN AND MICHAEL RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS 215 (Martinus Nijhoff 2d ed. 2008); see Jama v. I.N.S., 22 F. Supp. 2d 353, 365 (D.N.J. 1998) (rejecting claims brought under I.C.C.P.R. because convention was not self-executing). Self-executing treaties are those which are "the equivalent to an act of the legislature" while non-self-executing treaties are generally unenforceable absent implementing legislation or executive order. STEPHENS, supra, at 216-17 (quoting Foster v. Neilson, 27 U.S. 253, 254, 314 (1829)). Accordingly, an individual may generally seek enforcement of a treaty where it is self-executing or has been implemented into domestic law through an executive order or legislation. STEPHENS, supra, at 218.

(21) STEPHENS, supra note 20, at 215 (noting courts often cite treaties as evidence of customary norm); see Kadic, 70 F.3d at 241-42 (citing Convention on the Prevention and Punishment of the Crime of Genocide and C.A.T. as evidence of customary international norms prohibiting genocide and torture); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp. 2d 289, 326 (S.D.N.Y. 2003) (relying on C.A.T. as evidence of customary international law prohibiting torture).

(22) See LAUTERPACHT & BETHLEHEM, supra note 1, at 163 (defining customary norm of non-refoulement).

(23) LAUTERPACHT & BETHLEHEM, supra note 1, at 163, 178 (noting absolute prohibition on refoulement); see also United Nations High Commissioner for Refugees [UNHCR], Conclusions Adopted by the Executive Committee on the International Protection of Refugees, Non-refoulement, Conclusion No. 6 (XXVIII) (1977) (noting "non-refoulement has found expression in various international instruments. . .and is generally accepted by States"); UNHCR, Report of the Forty-Fourth Session of the Executive Committee of the High Commissioner's Programme on the General Conclusion on International Protection, U.N. Doc. A/AC.96/821 (1993) [hereinafter UN High Commissioner Report] (noting prohibition on non-refoulement "is not subject to derogation"); Theo Van Boven, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, para. 28, U.N. Doc. A/59/324 (Sep. 1, 2004) (noting non-refoulement is inherent to absolute prohibition of torture and, like torture, is non-derogable); ASS'N OF THE BAR OF THE CITY OF N.Y. & CTR. FOR HUM. RTS. & GLOBAL JUST., TORTURE BY PROXY: INTERNATIONAL & DOMESTIC LAW APPLICABLE TO "EXTRAORDINARY RENDITIONS" 44 (2004) [hereinafter TORTURE BY PROXY], available at http://www.nyuhr.org/docs/TortureByProxy.pdf (noting absolute prohibition on refoulement is derivative of absolute prohibition on torture).

(24) LAUTERPACHT & BETHLEHEM, supra note 1, at 151-52, 155 (recalling torture constitutes rule of customary international law and may be jus cogens); see C.A.T., supra note 1, at art. 2 (establishing affirmative duty to prevent torture); Universal Declaration of Human Rights, G.A. res. 217A, at 71, art. 5, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights] ("No one shall be subjected to torture . . ."); Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452 (XXX), art. 2, U.N. GAOR, 30th Sess., U.N. Doc. A/10034 (Dec. 9, 1975) (declaring torture violates Universal Declaration of Human Rights); The European Convention for the Protection of Human Rights and Fundamental Freedoms, art 3, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 [hereinafter European Convention on Human Rights] ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment"); International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 [hereinafter I.C.C.P.R.] ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment"); American Convention on Human Rights art. 5(2), Nov. 22, 1969, 1144 U.N.T.S. 123, O.A.S.T.S. 36 ("No one shall be subjected to torture"). Lauterpacht & Bethlehem assert that "non-refoulement is fundamental component of the ... prohibition of torture . . ." under customary international law, article 3 of the C.A.T. and other human rights conventions. LAUTERPACHT & BETHLEHEM, supra note 1, at 162-63; see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 702 (1986) (explaining freedom from torture is a jus cogens norm); Filartiga, 630 F.2d at 885 (holding right to be free from torture is a "fundamental right"); Trajano v. Marcos, 978 F.2d 493, 499 (9th Cir. 1992) (holding death from torture contrary to law of nations) cert. denied 508 U.S. 972, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993); Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (holding prohibition of torture is jus cogens norm); Kadic, 70 F.3d at 243 (holding torture prohibited by international human rights and humanitarian law); see also United Nations Vienna Convention on the Law of Treaties art. 53, May 3, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter Vienna Convention] (defining jus cogens norm). The Vienna Convention defines a jus cogens norm as "a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention, supra, art. 53; Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016 (9th Cir. 2000) (citing Vienna Convention art. 53).

(25) See Jean Allain, The Jus Cogens Nature of Non-Refoulement, 13 INT'L J. REF. L. 533, 538 (2001) (finding norm prohibiting refoulement part of customary international law and binding on all States); Alice Farmer, Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection, EXPRESSO, available at http://works.bepress.com/alice_farmer/1 (noting jus cogens nature of non-refoulement); Jillian Button, Spirited Away (Into a Legal Black Hole?): The Challenge of Invoking State Responsibility for Extraordinary Rendition, 19 FLA. J. INT'L L. 531, 548 (2007) (noting jus cogens nature of nonrefoulement); John Dugard & Christine Van Den Wyngaert, Reconciling Extradition with Human Rights, 92 AM. J. INT'L L. 187, 198 (1998) (noting torture is jus cogens and therefore States should refuse extradition where individual may be tortured); Theo Van Boven, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 28, U.N. Doc. A/59/324 (Sep. 1, 2004) (reporting non-refoulement is non-derogable derivation of absolute prohibition of torture). The Committee Against Torture has declared that the prohibition of refoulement must be recognized as a peremptory norm of international law. MANFRED NOWAK & ELIZABETH MCARTHUR, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY, 147 (2008) [hereinafter NOWAK & MCARTHUR] (citing Summary Record of 627th Meeting, Held at the Palais Des Nations, Geneva, on Thurs., 18 November 2004: Committee Against Torture, 33rd Session, Jan. 24, 2005, CAT/C/SR/.627, [section][section]51, 52); see also, Soering v. United Kingdom, 11 Eur. H. R. Rep. 439, 468-69 (holding expulsion of individual to State where substantial risk of torture exists violates ECHR); Tapia Paez v. Sweden, Communication No. 39/1996, 14.5, U.N. Doc. CAT/C/18/D/39/1996 (1997) (holding States may not expel individual where there exists risk of torture); Chahal v. United Kingdom, 23 Eur. Ct. H.R. 413 (1996) (finding threat to national security by alleged terrorist not germane to refoulement analysis); Cartagena Declaration on Refugees, Nov. 22, 1984, OAS/Ser.L/V/II.66, Section III, para. 5 (declaring non-refoulement should be acknowledged as jus cogens). A jus cogens norm, or "peremptory norm" of international law, "is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Siderman de Blake v. Republic of Arg., 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna Convention on the Law of Treaties art. 53, supra note 24).

(26) C.A.T., supra note 1, at art. 3. Similarly, article 22.8 of the American Convention on Human Rights states "[i]n no case may an alien be deported or returned to a country ... of origin if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions." American Convention on Human Rights art. 22.8, Nov. 22, 1969, 1144 U.N.T.S. 123, O.A.S.T.S. 36; see also, International Convention for the Protection of All Persons from Enforced Disappearance art. 17, Dec. 20, 2006, U.N. doc. A/HRC/RES/2006/1 (prohibiting refoulement); Convention Relating to the Status of Refugees art. 33 July 28, 1951, 189 U.N.T.S. 137 [hereinafter 1951 Refugee Convention] (prohibiting refoulement of refugees, with certain exceptions); Human Rights Committee General Comment, 28 July 1994, para. 9, U.N. Doc. 20 HRI/HEN/1/rev.1 (holding States must not expose individuals to torture through refoulement); Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc. CCPR/C/49/D/469/1991 (1994) (finding deportation to face death penalty violates prohibition on cruel, inhuman, and degrading punishment); Soering v. United Kingdom, 11 Eur. H.R. Rep. 439, 468-69 (1989) (holding State shall not surrender person where risk of torture exists); Chahal v. UK, 23 Eur. H.R. Rep. 413, 414 (1996) (finding Soering applies to both deportation and extradition cases); Hilal v. United Kingdom, 33 Eur. H.R. Rep. 2 (2003) (holding expulsion of political activist who suffered prior abuse would violate article 3 of ICCPR); Saadi v. United Kingdom, 47 Eur. H. R. Rep. 17, 450 (2008) (reconfirming absolute nature of prohibition of torture and hence refoulement, irrespective of the individual's conduct). Nunez-Chipana v. Venezuela, Case No. 110/1998, para. 7, U.N. Doc. CAT/C/21/D/110/1998 (finding extradition to State known for use of torture violates article 3 of C.A.T.). The prohibition of refoulement in Article 3 of the C.A.T. codifies a norm of international law. NOWAK & MCARTHUR supra note 25, at 127. A State commits refoulement when it sends a person to another State where there is substantial risk that person will be tortured. Id. Article 3 of the C.A.T. is an absolute protection not subject to exclusion, limitation, or derogation by the State. Id. at 129. The Committee Against Torture has repeatedly confirmed the absolute nature of article 3 and declared non-refoulement must be recognized as a jus cogens norm. Conclusions and Recommendations of the Committee Against Torture: Nepal, [section]17, U.N. Doc. CAT/C/NPL/CO/2 (Apr. 13, 2007); Conclusions and Recommendations of the Committee Against Torture: France, [section]6, U.N. Doc. CAT/C/FRA/CO/3 (Apr. 3, 2006); Committee Against Torture, 34th Sess., 652d mtg. [section]59, U.N. Doc. CAT/C/SR.652 (May 11, 2005); Committee Against Torture, 33d Session, 627th mtg. [section][section]51, 52, U.N. Doc. CAT/C/SR/.627. The prohibition on refoulement applies to all persons at risk of being tortured upon return, including individuals considered a threat to national security such as suspected terrorists. Committee Against Torture, 22d Sess., 372d Mtg., [section]14, U.N. Doc. CAT/C/SR.372 (Apr. 30, 1999); Committee Against Torture, 24th Sess., 435th Mtg., [section]22, U.N. Doc. CAT/C/SR.435 (Apr. 30, 1999); Committee Against Torture, 9th Sess., 126th Mtg., [section]14, U.N. Doc. CAT/C/SR.126 (Nov. 18, 1992). Article 3 applies to all forms of removal from one jurisdiction to another, including the U.S. practice of extraordinary rendition of terror suspects. NOWAK & MCARTHUR supra note 25, at 129. Receiving diplomatic assurances from a State with a known record of torture does not absolve the sending State from its obligations under Article 3 of the C.A.T. Id. at 129. Refoulement may constitute complicity in torture. Id. at 128 (citing C.A.T. art. 4). This view is supported by the European Court of Human Rights in the case of Saadi v. United Kingdom, 47 Eur. H. R. Rep. 17 (2008). In Saadi, the Applicant was prosecuted both in Italy and in absentia in Tunisia on terrorism charges. Id. paras. 14, 29. Saadi was subsequently ordered deported to Tunisia to serve a twenty-year sentence, whereupon he petitioned the European Court of Human Rights to quash the deportation order. Id. para. 32. In deciding the case, the court recognized the duty of States to protect citizens from terrorism, but nonetheless held that this duty cannot abrogate the absolute prohibition on torture found in Article 3 of the E.C.H.R. Id. para. 137. The court reaffirmed the fundamental principle stated in Chahal v. United Kingdom that a State can not weigh the risk of ill-treatment against the grounds for deportation. Id. at para. 138. Furthermore, the court rejected 'diplomatic assurances' by Tunisia where reliable sources indicated state practice contravened Article 3 of the E.C.H.R. Id. at para. 147. Similarly, in the case of Nunez-Chipana v. Venezuela before the Committee Against Torture (the C.A.T. monitoring body), the author claimed her extradition to Peru from Venezuela to face trial on terrorism charges would place her in danger of being subjected to torture in violation of Article 3 of the C.A.T. NunezChipana v. Venezuela, Case No. 110/1998, U.N. Doc. CAT/C/21/D/110/1998, paras. 1, 3.1. Nunez-Chipana acknowledged the right of the State and the international community to fight terrorism; however, she maintained that State action to combat terrorism cannot violate the rule of law or international human rights standards. Id. at para. 5.6. The prohibition on refoulement, Nunez-Chipana maintained, must be upheld especially when the accused faces vague definitions of "terrorism." Id. The Committee against Torture concluded the Nunez-Chipana's extradition violated Article 3 of the C.A.T., notwithstanding the author's status as a terror suspect or assurances that she not be subjected to torture. Id. at paras. 7, 2.5. The Committee reached its conclusion after reviewing reports and information regarding the use of torture by Venezuelan law enforcement officials in connection with the interrogation of terror suspects. Id. at para. 6.4. The U.S. government has also supported the opinio juris that all persons are to be protected from refoulement, stating "there are no categories of aliens who are excluded from protection under Article 3 (of the C.A.T.)." Leila Nadya Sadat, Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1220 n.91 (citing U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Second Periodic Report of the United States of America, at 38, U.N. Doc. CAT/C/48/Add.3, (May 6, 2005) available at http://www.state.gov/g/drl/rls/45738.htm).

(27) See NOWAK & MCARTHUR, supra note 25, at 147, 166; LAUTERPACHT & BETHLEHEM, supra note 1, at 163, 178 (noting absolute prohibition on refoulement); see also Tapia Paez v. Sweden, Communication No. 39/1996, 14.5, U.N. Doc. CAT/C/18/D/39/1996 (1997) (finding no exception to absolute prohibition on refoulement); Agiza v. Sweden, 24, U.N. Doc. CAT/233/2003 (20 May 2005) (holding prohibition on non-refoulement is absolute and non-derogable even in context of national security concerns); Saadi, 47 Eur. H. R. Rep. 17 (reconfirming absolute nature of prohibition of torture and refoulement, irrespective of individual's conduct); U.N. High Commission Report, supra note 23, at 9 (calling upon States to scrupuosly respect fundamental principle of nonrefoulement); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra note 23 at 28 (noting non-refoulement is inherent to absolute prohibition of torture and, like torture, nonderogable); TORTURE BY PROXY, supra note 23, at 37-53 (noting absolute prohibition on refoulement is derivative of absolute prohibition on torture).

(28) U.S. DEPARTMENT OF STATE: MULTILATERAL TREATIES IN FORCE FOR THE UNITED STATES AS OF JANUARY 1, 2007, 182 [hereinafter U.S. TREATIES IN FORCE 2007] available at http://www.state.gov/documents/organization/89668.pdf; United Nations Treaty Collection, Status of Multilateral Treaties Deposited with the Secretary-General, Chapter IV Human Rights, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereinafter U.N. Treaty Collection] available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=129&chapter=4& lang=en. Upon giving its advice and consent to ratification of the C.A.T., the United States Senate declared that the provisions of articles 1 through 16 of the C.A.T. are not self-executing. U.S. TREATIES IN FORCE 2007, supra at 182; U.N. Treaty Collection, supra.

(29) Foreign Affairs Reform and Restructuring Act of 1988, Pub.L. No. 105277, [section] 2242, 112 Stat. 2681-822 (1998) [hereinafter F.A.R.R.A.] (codified as Note to 8 U.S.C. [section] 1231 (2006)) (implementing Article 3 of C.A.T.). Regulations promulgated under F.A.R.R.A. provide that the United States will not send individuals to countries where they are "more likely than not to be tortured...." 8 C.F.R. [section] 208.16(c)(4) (2008). See, e.g. U.S. Citizen and Immigration Services Form I-589 (permitting a non-citizen to file a petition for asylum and withholding of removal under Article 3 of C.A.T.). Unlike the C.A.T., which provides for no exception to the prohibition on refoulement, F.A.R.R.A. authorizes the exclusion of an alien where "there are reasonable grounds to believe that the alien is a danger to the security of the United States." I.N.A. 241(b)(3)(B)(iv), 8 U.S.C. [section] 1231(b)(3)(B) (2006).

(30) F.A.R.R.A., supra note 29; see Illegal Immigration Reform and Immigrant Responsibility Act of 1996, [section]239, 8 U.S.C. [section]1229(3) [hereinafter I.I.R.I.R.A.] (amending F.A.R.R.A. by providing nothing within 8 U.S.C. [section] 1231 "shall be construed to create any substantive or procedural right ... enforceable by any party against the United States or its agencies or officers . . ."); see also California v. Sierra Club, 451 U.S. 287, 297 (1981) ("The federal judiciary will not en graft a remedy on a statute, no matter how salutary, that Congress did not intend to provide").

(31) Ahmed v. Goldberg, No. 99-0046, 2001 WL 1842390 at 10 (D.N. Mar. I., May 11, 2001) (holding plaintiffs may state a cognizable claim under the A.T.S. for State's failure to implement meaningful non-refoulement procedures).

(32) See Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128, 1136 (N.D. Cal. 2008) (dismissing plaintiffs extraordinary rendition A.T.S. claims as non-justiciable following U.S. invocation of state secrets privilege); El-Masri v. United States, 479 F.3d 296, 313 (4th Cir. 2007) (affirming dismissal of plaintiff's extraordinary rendition claims under A.T.S. because Government could not fairly litigate defenses without disclosure of state secrets). In Jeppesen, the District Court explained that the "[S]tate secrets privilege is a common law evidentiary privilege of constitutional significance that the government may assert when 'there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.'" 539 F. Supp. 2d at 1132 (citing United States v. Reynolds, 345 U.S. 1, 10 (1953)). The court went on to explain that:
   [I]nvocation of state secrets privilege requires a court to
   undertake a threestep analysis: (1) the court must ascertain that
   the procedural requirements for invoking the state secrets
   privilege have been satisfied, (2) the court must make an
   independent determination of whether the information is privileged,
   and (3) the court must consider whether or how the case should
   proceed in light of the privilege claim.


Id.

(33) See Arar, 532 F.3d at 162-66 (describing Arar's alleged rendition and treatment); supra notes 22-25 and accompanying text (introducing prohibition on non-refoulement).

(34) See supra notes 22-29 and accompanying text (discussing status of nonrefoulement under international and domestic law).

(35) See supra notes 18-21 and accompanying text (discussing A.T.S. and "law of nations").

(36) See supra note 31 and accompanying text (discussing lack of remedies available under F.A.R.R.A.).

(37) See Arar, 532 F.3d at 162-66 (recounting Arar's allegations of fact); supra notes 18-31 and accompanying text (discussing A.T.S., refoulement, and remedies available).

(38) See supra note 32 and accompanying text (describing state secrets privilege).

(39) 532 F.3d 157.

(40) See supra, notes 1-32, and accompanying text (explaining refoulement as cause of action in Arar v. Ashcroft).

(41) See, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 (enumerating laws of war); Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (enumerating and criminalizing violations of laws of war); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 (enumerating laws of war, especially protection of ground forces); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 3 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85 (enumerating laws of war, especially protection of naval forces); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 3 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 (enumerating laws of war, especially protection of prisoners of war); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (enumerating laws of war, especially protection of civilians); 1951 Refugee Convention, supra note 26 (enumerating human rights of refugees); European Convention on Human Rights, supra note 24(enumerating fundamental human rights); International Covenant on Economic, Social and Cultural Rights, G.A.O.R. 2200A (XXI), Jan. 3, 1976, U.N. Doc. A/6316, 993 U.N.T.S. 3 (enumerating fundamental human rights); I.C.C.P.R., supra note 24, (enumerating fundamental human rights); Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (enumerating human rights of refugees); American Convention on Human Rights, supra note 24 (enumerating fundamental human rights); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3 (enumerating laws of war in international armed conflict); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 (enumerating laws of war in non-international armed conflict); Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S 13 (enumerating basic human rights specific to women); C.A.T., supra note 1 (enumerating fundamental right to be free from torture and cruel, inhuman or degrading punishment); Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3 (enumerating basic human rights specific to children); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, May 25, 1993, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 6, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1203 (enumerating and criminalizing violations of the laws of war); Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, November 8, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1600 (enumerating and criminalizing violations of laws of war); Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (enumerating and criminalizing violations of the laws of war); Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, 39 I.L.M. 1285 (enumerating basic rights of child soldiers); JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005) (extensively cataloguing customary laws of war); International Convention for the Protection of All Persons from Enforced Disappearance, supra note 26 (detailing human right to be free from disappearance).

(42) See supra, notes 1-32, and accompanying text (explaining refoulement as cause of action in Arar v. Ashcroft).
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