This Article considers the practice of extraordinary rendition – abduction and transfer of terror suspects to third countries for detention and interrogation – within the context of the conflicts in Afghanistan and Iraq. It contends that extraordinary renditions from Afghanistan and Iraq amount to grave breaches of Article 49 of the Fourth Geneva Convention prohibiting forcible transfer of protected persons from occupied territory.

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Since September 11, 2001, there has been a heated debate over whether the laws of war apply to the conflicts with al Qaeda in Afghanistan and Iraq. Little attention, however, has been devoted to the humanitarian law of occupation as it applies to the conflicts. The authors suggest that, because at some point the United States (U.S.) forces occupied at least parts of Afghanistan, the U.S. may still be bound by the Geneva Conventions as occupying powers. This argument hinges on the fact that the protection afforded by Article 49 applies until the persons are released or repatriated, regardless of the status of occupation in the country. Thus, insofar as the US maintains control over some detention sites, the forcible transfer of the detainees to Guantanamo or their extraordinary rendition from Afghanistan constitutes a grave breach of the Fourth Geneva Convention. The authors proceed to examine the arguments presented by the Bush Administration to exclude the Talibans and members of al-Qaeda from the safeguards of the Geneva Conventions and use traditional tools of treaty interpretation to refute each argument and to demonstrate that the prohibition against forcible transfer is absolute. In this light, the authors finally probe several mechanisms to ensure accountability for violations of international humanitarian law. They specifically consider mechanisms to challenge the practice of extraordinary rendition (i) within the domestic legal system of the offending High Contracting Party (the U.S.), (ii) within international judicial bodies, and (iii) in other States Parties to the Geneva Conventions.  

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The article concludes that if U.S. prosecutors take no action to investigate and hold government officials responsible for the illegal transfers of protected persons from Afghanistan, it will be up to a prosecutor in other countries or, albeit less likely, the International Criminal Court to hold those officials to the standards of international humanitarian law.