Star Law Analysis
Diplomatic assurances and the extent of its reliability in protection of human rights
Farah Ashraf
Since the attacks of 11th September there has been increased use of “ diplomatic assurances” to justify the extradition or deportation of persons to countries known to regularly practice torture. The legality and efficiency of this practice in protecting human rights and fulfilling states' non-derogable obligation has been called into question. Under the Convention Against Torture (CAT), it is expressly prohibited to transfer a person to a country where he or she would be at risk of torture. The ban thus defends logical reliability: states cannot torture and cannot avoid this obligation by sending people to governments that will. The obligation not to send a person to a place where he or she would be at risk of torture is clearly expressed in article 3 of the CAT: “No State shall expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In Tapia Paez v. Sweden, the Committee against Torture, authorized under the convention to consider individual cases, stated that the test of article 3 is absolute: “Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.”
Moreover, in March 2004, the Human Rights Committee adopted General Comment No. 31 on International Covenant on Civil and Political Rights (ICCPR) article 2 (concerning nondiscrimination) regarding “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant.” Paragraph 12 reads in part: . . . the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 [right to life] and 7 [torture or cruel, inhuman or degrading treatment] of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.
However, as has been pointed out by the European Court of Human Rights in Chahal v United Kingdom, despite assurances by the receiving government, a decision to deport a person facing a risk of torture would still violate Article 3 of the European Convention on Human Rights. In an attempt to avoid the non-refoulement obligation, the UK and other governments have attempted to extend the practice of “ diplomatic assurances” in extradition cases where a person might face the death penalty, to cases where the person faces a risk of being tortured. The death penalty is not absolutely prohibited under international law. As such, it is exercised by some states through public means (judicial, legislative, administrative and others). Therefore, where there is an obligation to extradite an individual under an extradition treaty, the sending state can request diplomatic assurances from the receiving state to guarantee that the person would not be executed. But even in these cases, where assurances have been given, international law states that it is the discretion of the sending state to extradite the person. In cases where the person faces a risk of torture, the sending state is under an international obligation to refrain from extraditing or deporting the person.
On practical level, the governments involved in negotiating the assurances have little or no incentive to scrutinize for and emphasize a breach of diplomatic assurances against torture or ill-treatment. In some cases, sending governments want the receiving state to use prohibited interrogation techniques against a person to extract information. In other cases, the sending state simply wants the receiving state to take responsibility for warehousing a suspect who is considered a national security threat in the sending state. In either situation, a sending government that learns a breach of the assurances would have to acknowledge a violation of its own non-refoulement obligation. A receiving government also has little incentive to abide by assurances against torture and ill-treatment. All of the receiving states identified routinely violate their legally binding human rights treaty obligations by employing torture to effect state policy. They obviously believe that there is little to gain from observing those legal obligations. It is unlikely that governments that practice torture unconstrained by international legal commitments will restraint in abuse on the basis of non-binding assurances.
In his September 2004 report to the United Nations General Assembly, Theo van Boven, a Special Rapporteur on torture, articulated concern that reliance on diplomatic assurances is a “practice that is increasingly undermining the principle of non-refoulement.” He questioned “whether the practice of resorting to assurances is not becoming a politically inspired substitute for the principle of non-refoulement, which…is absolute and nonderogable.” In his conclusions, the Special Rapporteur stated that, as a baseline, in circumstances where a person would be returned to a place where torture is systematic, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.” He also noted that if a person is a member of a specific group that is routinely targeted and tortured, this factor must be taken into account with respect to the non-refoulement obligation. The other Special Rapporteur on torture, Manfred Nowak, echoed van Boven's conclusion against the use of assurances for returns to countries where torture is systematic in one of his first public statements on the issue.
In the situation that there's a country where there's a systematic practice of torture, no such assurances would be possible, because that is absolutely prohibited by international law, so in any case the government would deny that torture is actually systematic in that country, and could easily actually give these diplomatic assurances, but the practice then shows that they are not complied with. And there's then no way or very, very little possibility of the sending country to actuallyas soon as the person is in the other countryto make sure that this type of diplomatic assurances are complied with. Nowak's statement not only firmly rejects the use of assurances to countries where torture is systematic, it highlights some of the most obvious faults inherent in enforcing such guarantees in any case where they might be used, including denials by the receiving state and the inability of the sending state to monitor effectively for torture after a person is transferred to an abusive state.
Indeed, states that torture routinely escort their deliberate violations with firm denials of abuse, often despite overwhelming evidence to the contrary. Such denials also obtain in individual cases of abuse despite diplomatic assurances of protection. For example, amidst serious and credible allegations that the two Egyptian men expelled from Stockholm to Cairo in December 2001 were tortured, the Egyptian authorities simply issued a complete denial that torture or ill-treatment had occurred. The Egyptian government “refuted the allegations [of torture] as unfounded” and communicated to the Swedish authorities that the Egyptian authorities were “of the opinion that further investigations are not necessary.” The Swedish government appears to have little recourse in the face of such denials. When Maher Arar, a Syrian-Canadian binational, credibly alleged that he had been tortured in Syria after his transfer there by U.S. and Jordanian operatives following assurances from the Syrians, the Syrian authorities simply claimed that his allegations were not trueand the U.S. government accepted the Syrian denial of torture at face value.
All of the text of diplomatic assurances collected by Human Rights Watch recapitulate the receiving country's existing treaty obligationsones that they already routinely ignore and routinely deny violatingas the basis for illustrating that they can be trusted to comply with non-legally binding diplomatic assurances when it comes to the treatment of the one individual in question. For example, in January 2005, a Dutch court ruled that assurances from Turkey “added nothing” to the protection of a former PKK operative threatened with extradition because the guarantees merely restated Turkey's currently existing human rights obligations, which Turkey had not observed in general with respect to eradicating torture on the ground. None of the assurances provide for a mechanism to challenge a breach of the assurances or any other remedy for a credible allegation that the agreement had been broken. Thus, if one or the other of the states involved violates the assurances, it literally has nothing to lose. It should also be noted that the situation for refugees and asylum seekers has been of further concern following the 'war against terrorism'. Despite the fact that many have fled their homes to escape persecution and repression, they are at times regarded as potential terrorists because of their country of origin.
Within the context of fight against terrorism it has been observed that the use of diplomatic assurances in the face of risk of torture and other ill-treatment violates the absolute prohibition in international law against torture and other ill-treatment and the non-refoulement obligation. States can implement this obligation in part by ensuring that extradition treaties and procedures prevent return in such circumstances, and by ensuring an effective appeals process against the decision to return, expel or extradite. However, as stated by Holly Cartner: “The evidence shows that assurances against torture don't work...It defies belief that a country that doesn't respect international obligations not to torture would comply with a mere promise made to one country.”
The author is doing LL.M in UK.
