International Law - Prohibition on Refoulement - Remedies - Maher Arar V. John Ashcroft

Article excerpt

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. …