The Hindu Business Line : Rendition for Dawood Ibrahim?

IMITATION, they say, is the sincerest form of flattery. Why then, given New Delhi's obvious desire to ingratiate itself with Washington, can't the United Progressive Alliance (UPA) government take a cue from the Bush Administration and move for the rendition of Dawood Ibrahim who is said to be in Pakistan.

After all, none other than the US Treasury Department had, on October 16, 2003, declared Dawood a `Specially Designated Global Terrorist' under Executive Order 13224, as he had "found common cause with Al Qaeda, sharing his smuggling routes with the terror syndicate and funding attacks by Islamic extremists aimed at destabilising the Indian government."

And then again, according to a late November report in the US News and World Report, the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) have "actively" joined in the hunt for Dawood , described by the publication as "South Asia's Al Capone."

Apparently, the FBI is trying to trace his assets and links to terrorist groups through an unnamed Pakistani CD counterfeiter, while the DEA is investigating Dawood's alleged involvement in the global heroin trade.

Finally, the US Secretary of State, Ms Condoleezza Rice, has been stoutly maintaining that rendition is a "vital tool" in the war against transnational terrorism and has specifically cited two instances — involving `Carlos the Jackal', who is in a French prison following his rendition by Paris after his capture in Sudan, and Ramzi Youssef, who masterminded the 1993 bombing of the World Trade Center and who is incarcerated in America following his rendition to the US — to fortify her position.

With the Bush Administration's imprimatur on the practice, why can't New Delhi, which obviously lays considerable store by it, secure Dawood through rendition?

There are several reasons why it cannot — but the most interesting ones flow from the deliberate and duplicitous obfuscation of the term `rendition' by those who comprise the core of the Bush Administration.

To illustrate, the American Center in India, in a recent press note dealing with Ms Condoleezza Rice's briefing of the media at the Andrews air force base on December 5, 2005, before departing to Europe to put out fires there, stated that rendition "refers to the transport of suspects by methods other than traditional judicial procedures from one country to another in which they can be questioned or tried."

Not quite... .

Rendition is a legal term meaning the "surrender" or "turn over" of properties or persons from one jurisdiction to another.

Extradition is the most common type of rendition which word is often additionally used to mean the act of handing over of persons or properties after a request for extradition has been made.

The Bush Administration is not using rendition in this sense of the term when it is moving around terror suspects, but a relatively secretive procedure called extraordinary rendition which has little or nothing to do with the system of due process afforded to suspects in crimes in most parts of the world.

Under the extraordinary rendition programme, terror suspects in Europe, Africa, Asia, and the Middle East have been abducted by masked American agents and "rendered" to Egypt, Morocco, Syria, and Jordan in aircraft registered to dummy American corporations, which have clearance to land at US military bases. The programme has been implemented on the basis of a convenient interpretation of a somewhat vague clause in the United Nations Convention against Torture (UNCAT).

Article 3 of UNCAT states:

1) 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.

2) For determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

The US Senate had ratified the treaty in 1994 — with certain reservations, declarations, and understandings which altered the nature of the country's treaty obligation with regard to UNCAT's Article 3.

Congressional Record S17486-01 II.3 reads thus: "The United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in Article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'"

This `understanding' makes it very difficult indeed for anybody to prove a treaty violation by the US — even though Egypt, Morocco, Syria, and Jordan have all been cited for human-rights violations by none other than the US State Department!

Most of the suspects "rendered" by the US to these countries have simply disappeared.

Such "disappearances" are crimes under international law, involving multiple human-rights violations. In certain circumstances they are considered crimes against humanity.

The defining characteristic of a "disappearance" is that it puts the victim beyond the protection of the law in such a manner that it is shielded from outside scrutiny, making it virtually impossible to expose. Thus, the Rome Statute of the International Criminal Court defines the "enforced disappearance of persons" as "the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time."

The UN "Declaration on the Protection of All Persons from Enforced Disappearances" of 1992 states that "any act of enforced disappearance is an offence to human dignity," which "places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families."

"It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life."

And then again, secret detention is prohibited under international human rights standards. Principle 6 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions states that "governments shall ensure that persons deprived of their liberty are held in officially recognised places of custody, and that accurate information on their custody and whereabouts, including transfers, is made promptly available to their relatives and lawyers or other persons of confidence."

To sum up, the US can ignore the world, in general, and the UN, in particular, with impunity. India cannot.

Dawood, therefore, need have no fear about being rendered — extraordinarily or otherwise — to India.