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Do Secret Prisons Sidestep The Law?

Do Secret Prisons Sidestep The Law?As the United States comes under fire at home and abroad for allegedly detaining terror suspects in secret European prisons, Tufts expert Hurst Hannum examines possible violations of international law.

Medford/Somerville, Mass. [12.20.05] While the United States has not confirmed the existence of secret prisons in Europe, many are concerned about the legality of such detention centers. Recently, on National Public Radio’s Morning Edition, Tufts expert Hurst Hannum discussed the complexities of international law.

Hannum, a professor of international law at The Fletcher School, started by explaining to NPR that there is “not an easy answer” to the question of whether it would be legal for the United States to detain suspects in Eastern Europe.

“Certainly the European countries in which they're being held are under legal obligations not to allow secret prisons and incommunicado detention,” Hannum said on the radio show. “The question is what authority the U.S. is exercising over there and whether the various international law norms that bind the U.S. operate outside the United States territory as well as inside the U.S. territory.”

According to Hannum, there are two possible sets of laws that could come into play in this situation.

“One is human rights law; the other is the laws of war--humanitarian law, the Geneva Conventions,” he told NPR. “The Geneva Conventions only kick in if there is an armed conflict of some sort. Human rights law applies in all other cases. Under neither body of law is it permissible simply to kidnap someone and keep them in secret indefinitely.”

But, he added, the United States doesn’t appear to be abiding by either human rights law or humanitarian law.

“The U.S. position, as best I can understand it, is, in effect, that no law applies because this is a different kind of war not covered by the Geneva Conventions and because it takes place outside U.S. territory,” he told NPR.

Based on the international law of human rights, which would apply to the European countries where these prisons are located, he explained on the radio program, “the normal criminal law of rules would apply.” He said that people who are arrested would be charged with a crime and be allowed a fair trial. During emergency situations and wartime, he added, the rules may bend slightly, but not too far.

“Under these circumstances, it might be permissible to detain someone without a trial for a longer period of time. But even then, the key is that somebody has to know these people are there and there has to be some sort of oversight,” Hannum told NPR. “Under international human rights law, it's simply not permissible for a government, any government, to pick someone up and keep them incommunicado forever, even under emergency or extraordinary circumstances.”

Hannum explained to NPR, “The notion that you can keep people for months or in the U.S. case even years without any indication of when or under what circumstances they will be released I think is untenable under either the various treaties to which we're a party or under what's called customer international law, which is law that binds every state no matter where it's acting.”

While it may be complicated to determine which set of international laws applies to the situation, Hannum told NPR they all involve a straightforward principle.

“You can't hold people in secrecy forever.”













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