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The Capacity to Protect: Diplomatic Protection of Dual Nationals in the 'War on Terror'
Craig Forcese 1
Abstract
Covert, extrajudicial removals of suspected terrorists from Western countries to face interrogation in nations using torture are now a feature of the post-9/11 world. These ‘extraordinary renditions’ may transgress human rights obligations. They may also engage an often forgotten principle of international law: diplomatic protection of nationals. In the best documented rendition to date, the individual removed by the United States and tortured in Syria was a national, not only of the latter state, but also of another country, Canada. The question this article asks is whether international law stands in the way of countries like Canada extending diplomatic protection to their rendered dual nationals. The article concludes that old rules precluding protection in a contest between two states of nationality are no longer part of international law. For this and other reasons, dual nationality is not a legal bar to diplomatic protection of persons swept up in extraordinary renditions.
1 Assistant Professor, Faculty of Law, University of Ottawa, Canada. B.A. (McGill), M.A. (Carleton), LL.B. (Ottawa), LL.M. (Yale); of the bars of New York, the District of Columbia and Ontario.
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