Michael D Higgins (Galway West, Labour)

I move:

That Dáil Éireann,

noting that:

—the State is not simply obliged by national and international law not to engage in torture, but also has positive obligations to ensure that torture is not facilitated and that individuals are not placed at risk of torture, inhuman or degrading treatment;

—the national and international legal consensus that a state cannot rely on diplomatic assurances alone to discharge those positive obligations, and, in particular, the statement of the secretary general of the Council of Europe that 'mere assurances by foreign states that their agents abroad comply with international and national law are not enough. Formal guarantees and enforcement mechanism need to be set out in agreements and national law in order to protect ECHR rights';

—the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe has adopted a report from Senator Dick Marty to the effect that the United States has progressively woven a clandestine 'spider's web' of disappearances, secret detentions and unlawful inter-state transfers, spun with the collaboration or tolerance of Council of Europe member states;

—the Marty report concludes that certain Member States, including Ireland, could be held responsible for active or passive collusion (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise), involving secret detention and unlawful inter-state transfers of persons whose identity so far remains unknown, and that Ireland in particular could be so responsible for permitting Shannon to be used as a stopover for flights involving the unlawful transfer of detainees;

—the secretary general of the Council of Europe has commended the Marty Report and stated: 'Senator Marty has made some serious allegations about the involvement of several European countries. I note that some governments have immediately denied these allegations but I think that they should make clear whether they have investigated these allegations before rejecting them';

—the Irish Human Rights Commission has stated that: 'the report of Senator Marty is persuasive if not conclusive, and gives credence to the concerns already raised by the Irish Human Rights Commission. It strengthens the case for a fundamental rethink, especially on the reliability of diplomatic assurances. Reliance on diplomatic assurances is at the very heart of the Irish case and in this context the Human Rights Commission is strongly of the view that the only form of diplomatic assurances that could meet our constitutional and international human rights obligations would be ones which were fully legally enforceable and were accompanied by an effective regime of monitoring and inspection of aircraft suspected of involvement in the rendition of prisoners.';

—committed to full engagement and co-operation with other states to counter international terrorism and in that regard recalling the EU Presidency statement of the 11th May, 2006 that: 'We share the view that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing. Our fight against terrorism must be placed within a rule-of-law framework and conducted in full conformity with international law, in particular human rights law, refugee law and international humanitarian law';

—satisfied that there are real and substantial grounds for concern as to the lawfulness, in terms of both Irish and international law, of actions carried by or on behalf of the United States that are under inquiry and that a principle of trust in formal diplomatic assurances does not justify a refusal to have any regard to those allegations:

calls on the Government to:—

—accept its legal and constitutional responsibility to ensure that the territory and facilities of this State are not used for illicit purposes and especially not for human rights violations by any other state;

—support the recommendations outlined in the draft resolution of the Legal Affairs Committee before the Parliamentary Assembly of the Council of Europe;

—establish a credible independent investigation into the existence of any secret and extralegal arrangements, agreements or understandings, whether formal or informal, between the Irish authorities and the authorities of any other State, including at senior political level, as regards over flights, stopovers and extraordinary rendition;

—use the full powers available under the Air Transport and Navigation Act, and to make such amendments as are appropriate in such Acts for the vindication and guarantee of human rights, and to use such powers and powers under the Chicago Convention to introduce an appropriate regime of inspection of civilian aircraft, rather than relying solely on Garda powers relating to crime investigations, and

—outline what further proposals it has in order to honour its commitments in this regard under constitutional, domestic and international law.

The suicides of three inmates of Guantanamo Bay reported this week; the continuing use of extraordinary rendition by the Central Intelligence Agency, CIA, on behalf of the US Government with the co-operation and collusion of many European governments, which have ratified the European Convention on Human Rights but which are violating their own charter as to human rights; and the peremptory killing of a family on a beach in Gaza means that the international community has sunk to an appalling level where one must question the viability of international law. Any government that believes in the fundamental principles of the Universal Declaration of Human Rights or the European Convention on Human Rights must not just unequivocally condemn what is happening in Guantanamo Bay but must campaign for its immediate closure.

No campaign against international terrorism is served by operating outside of international law in its most fundamental aspects. The US Supreme Court has spoken in the past about the importance of not using tyrannical methods in dealing with what was suggested as the threat of tyranny. In its judgment in Rasul v. Bush, the US Supreme Court observed that:

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unrestrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber...for if this nation is to remain true to its ideals symbolised by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Extraordinary rendition, which is the subject of our motion, lies outside international law. It is a parallel system that does not simply involve the agency of one country but has ensnared other European countries which now participate in illegality. It has been described as a spider's web in the report produced by Senator Dick Marty on behalf of the legal affairs and human rights committee of the Council of Europe. This is why it is important that we do not merely condemn it. I am not suggesting that the Irish Government has done anything else other than condemn torture and extraordinary rendition and at times state that it is in favour of full acceptance of the norms of international law. However, the issue is whether the Government in the name of the Irish people can fulfil its duty of compliance with what is a fundamental principle of international law, namely, the condemnation of torture, without putting in place such practices as will lead to the full disclosure of process. It does not matter if the airplane coming home is empty if a government has lent itself to the process. That government is still not compliant with its obligations under one of the fundamental principles of jus cogens in international law, namely, the duty owed to all members of the family of nations that have condemned torture, be it through the United Nations Convention or the European Convention on Human Rights. This is why no campaign against international terrorism is served by practices outside international law and no compliance with international law is satisfactory unless it has clear observable principles of practice as well as rhetoric.

The whole nexus of extraordinary rendition, often with an endpoint of detention in Guantanamo Bay or of such interrogation in third countries as creates the real fear of inhuman and degrading punishment or torture itself, is an appalling indictment of international practice at the present time by some of the most powerful nations. It tacitly suggests that the rules of international law belong to smaller countries and that the hegemony can operate with impunity outside international law, even if it has ratified that law. The protection of the person by law is receding daily. There is even an attempt by the most powerful states to redefine the meaning of torture despite a universal abhorrence and rejection of the practice at the time of the passing of the United Nations Convention. It is interesting that the leader of the US delegation to the United Nations Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment sought to narrow its application, suggesting that Article 3 applied within the US but not outside it. Ordinary language tells us and ordinary people understand that people have been placed in illegal detention outside the reach and protection of international law in places like Guantanamo Bay. The three suicides that have taken place in Guantanamo Bay have occurred in the context of 41 attempted suicides involving 20 people in recent years. There must be no doubt in anyone's mind and under any fair interpretation of international law that enforced disappearance, which involves the hooding, kidnapping, and detention of persons outside of any legal protection and in indeterminate circumstances, is an oppression of such a scale that it can be regarded as torture.

The international community is tested by its willingness to achieve the closure of Guantanamo Bay and related facilities immediately. It is these events that make it imperative for smaller nations to vindicate the fundamental principles of international law. Such vindication requires not just a rhetorical assent to the principles but practices and compliance that are transparent and sufficient given the fundamental issues that are involved. Extraordinary rendition is a clear breach of the norms of public international law. Such norms require a positive compliance. The United Nations Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment creates a set of positive obligations. In the case of landings at Shannon Airport by airplanes on leases to the CIA, there is an obvious requirement to ensure that human rights law is not being broken. The Irish Government is not in a position to give us any assurance on this. It has neither put such conditions to its permission to use the facilities at Shannon Airport nor has it executed such inspections as would monitor basic compliance with international law.

The purpose of our motion is to ensure Ireland is seen by the international community and, more importantly, by its own citizens to have fulfilled its positive obligations in respect of such fundamental principles of international law as are contained in the International Covenant on Civil and Political Rights of 1966, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

The context in which I move this motion on behalf of the Labour Party is one in which there is a serious erosion of commitment to international law. Extraordinary rendition is part of the new extra-legal environment that has been created in the name of combating international terror. Taken together with the establishment of places of detention such as Guantanamo Bay, the acceptance of the principle of pre-emptive strikes and assassination, and the absence of care for the rights of civilians as exemplified by the killing last week of a family on a beach in Gaza, the snatching of persons and their transmission without legal protection to places of detention outside the law represents the lowest point to which respect for international legal principles has sunk in recent decades. Ireland at this juncture must clearly establish its position in respect of such developments. It must clarify its own position immediately and without equivocation. Irish people are appalled at finding themselves in the position of needing to defend themselves from the suggestion they are part of an extra-legal process instead of leading in defending international law.

On such issues of torture, enforced disappearances and illegal detentions, which are of the first order of importance in international law, we are not only required to be unequivocal in our condemnation of such practices — I want to be scrupulously fair and say the Government has condemned such practices — but we must be equally unequivocal in respect of the procedures we put in place to clearly show we are not part of any process of facilitating such extra-legal activity. However, we have not been able to do this. We have not sent gardaí on to a single plane in Shannon, planes that have the same registration numbers as those that snatched people extra-legally and moved them to places of torture. We have not explained what these planes were doing if they were not involved in the process of extraordinary rendition.

The Irish Human Rights Commission statement of 6 January 2006 gives details of correspondence between it and the then Commissioner for Human Rights, Mr. Alvaro Gil-Robles. In December 2005, it asked the Government to carry out inspections at Shannon Airport so that it could say it was in full transparent compliance with the UN Convention Against Torture. Mr. Gil-Robles wrote to the commission and stated:

States have a responsibility to ensure that their territory and facilities are not used for illicit purposes, especially not human rights violations and, even more particularly, for violations of Article 3 of the ECHR. In so far as so-called extraordinary rendition flights are concerned, States must be in a position, where there is doubt, to establish who is on board planes transiting via their airports, whether they are travelling freely or are detained, and, if the latter, under whose authority they are being transported and for what purpose. The IHRC's proposal that the Irish Government seek the agreement of the US authorities to inspect aircraft would certainly facilitate this.

That did not happen. It is not the only opinion on putting inspections in place the Government has ignored. Recently a request was made for an investigation of past practices, inspections and such conditions in the future as would make specific reference to the protection of human rights. So far, the Government has done nothing in this regard. It has not carried out inspections of aircraft on lease to the Central Intelligence Agency of the United States that have landed at Shannon Airport. Some of these aircraft have been identified through their registration numbers as the aircraft involved in extraordinary renditions.

In its report on 5 April 2006, Amnesty International identified a number of United States companies used to charter or operate aircraft involved in renditions. It examined the detailed flights of four aircraft. In the House, the Minister for Transport, Deputy Cullen, acknowledged that N313, a Boeing jet registered to Stevens Express Leasing Incorporated, had landed 14 times at Shannon Airport. In January 2004, this aircraft was used to take Khaled al-Masri to Afghanistan after being kidnapped in Macedonia.

The Minister acknowledged that N379P, a Gulf Stream executive jet, landed at Shannon Airport 15 times under two registration numbers. This aircraft was known as the Guantanamo Bay Express because of the frequency of its visits to Guantanamo Bay. This plane was used to transport Achmed Agiza from Sweden to Egypt. In its response to different bodies, the Government should refer to the Agiza case. Sweden had assurances from Egypt that nothing would take place that was in breach of any convention. The United Nations Committee against Torture held against Sweden that such diplomatic assurances should not have been accepted.

N829MG is the registration number of the plane that took Maher Amar, who had joint Canadian-Syrian citizenship, from New York to Jordan in 2002. He was later tortured in Syria. This plane landed twice in Shannon. N85VM, a Gulf Stream IV, transported Abu Omar to Egypt after his kidnap in Italy.

The Marty report shows flight plans through Shannon to Rabat, Cairo and Amman. What were these planes doing in Shannon if they were not involved in extraordinary renditions? There is no principle in international law that would support the suggestion that one must find a body on the plane for it to be in breach of the United Nations convention or Article 3 of the ECHR.

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