Document Type


Publication Date




In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. The rapporteur, in turn, asked the Venice Commission to prepare a legal opinion on the member states' related international obligations. On the basis of that opinion, and the rapporteur's finding that a fair number of member states had acquiesced or participated in the CIA program, the Parliamentary Assembly adopted a resolution and a recommendation intended to safeguard against such conduct in the future. Separately, the secretary general of the Council invoked his authority under Article 52 of the European Convention on Human Rights (ECHR) to survey member states on relevant aspects of their domestic legal systems, including whether those systems contain controls on foreign state conduct deemed to infringe ECHR rights.

To be sure, the Council of Europe is not the only international actor to have considered the lawfulness of the CIA program or certain aspects of it. Since the program became public, it has been scrutinized by other international institutions, national organs, the media, and international legal scholars. Yet the activities of the Council of Europe-an international body devoted to human rights-manifest a unique combination of relevance, breadth, and (with the opinion issued by the Venice Commission) legal rigor. The Council of Europe's response to the CIA program thus warrants particular attention.

This essay reviews that response, focusing primarily on the legal opinion issued by the Venice Commission. That opinion is significant for its determination that member state participation in the CIA program is incompatible with the ECHR, for its interpretation of the ECHR as requiring member states to police the conduct of states not party to that Convention, and for its effective imputation of ECHR obligations to those nonstate parties.


European Law | International Law | Law


© 2007 American Society of International Law. This article has been published in the American Journal of International Law and is free to view and download for private research and study only. Not for re-distribution or re-use.