March 29, 2007

US Refoulement to Russia: A Violation of the Prohibition against Torture

The prohibition against torture is absolute. War, national emergency, the imminent threat of terrorist attack-none may be invoked to justify torture.[9] Many international declarations and treaties[10]have repeated this prohibition, which finds its fullest articulation in the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment.

The same absolute prohibition applies to sending people back to countries where they will be at risk of torture or ill-treatment.The Convention against Torture forbids the "refoulement" of a person to countries "where there are substantial grounds for believing that he would be in danger of being subjected to torture."[11]The US government reaffirmed that principle in the Foreign Affairs Reform and Restructuring Act of 1998, which states in Section 1242, "It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."[12]

Although the Bush administration has recently attempted (unsuccessfully) to redefine torture, it has not directly challenged this principle of nonrefoulement for torture. Instead, the US government has attempted to evade this important legal obligation by obtaining "diplomatic assurances" of humane treatment from governments with a record of torture.[13]

Diplomatic Assurances

Particularly since the attacks of September 11, 2001 in the United States, the US and other governments have increasingly sought to return alleged terrorist suspects to countries where they face a risk of torture by obtaining from their governments "diplomatic assurances" that the suspects will be treated humanely back home.

Diplomatic assurances take a variety of forms. Some are simply oral promises. Others are written documents, in some cases signed by officials of both governments. The content of the assurances also varies, and assurances against torture are sometimes packaged with other promises, such as a commitment to a fair trial. Some assurances do no more than reiterate that the receiving government will respect its domestic law or its obligations under international human rights law.

Governments that have transferred or tried to transfer suspects with such "assurances" include Austria, Canada, Georgia, Germany, the Netherlands, Russia, Sweden, Turkey, the United Kingdom, and the United States. The receiving countries have included China, Egypt, Jordan, Morocco, Russia, Syria, Turkey, Turkmenistan, Uzbekistan, and Yemen, all of which have well documented records of torture. The US government has been particularly eager to use such "assurances" as it begins to repatriate detainees from GuantanamoBay.

Human Rights Watch opposes the use of "diplomatic assurances" in returning suspects to countries where they are at risk of torture. Governments that engage in torture routinely deny it and refuse to investigate allegations of torture.A government that is already violating its international obligation not to torture cannot be trusted to abide by a further "assurance" that it will not torture.This report provides evidence of precisely that fact, in the case of Russia.

The bankrupt nature of "diplomatic assurances" has received little attention in part because none of the governments involved want to admit to it.The receiving countries deny that they practice torture and do not want to concede further that they broke a bilateral promise of humane treatment.The sending countries, meanwhile, have no incentive to admit that the promises of humane treatment they received accomplished nothing and that they therefore violated their obligations under international law.

In response to a query from Human Rights Watch, the US government said in an email: "[T]he U.S. government has made clear on numerous occasions that it reviews humane treatment concerns relating to transfers out of Guantanamo and will not transfer an individual to a country where that individual is more likely than not to be tortured. Where necessary in order to address humane treatment concerns, the U.S. seeks assurances from the receiving government. This framework applied with respect to the transfer of the seven Russian nationals." [14]

Some sending governments have negotiated agreements to monitor the treatment of the suspects after they have been returned to their home countries.Human Rights Watch has documented elsewhere that such monitoring agreements have not ensured humane treatment.[15]Moreover, by its very nature, torture is practiced in secret, often using techniques that defy easy detection (for example, mock drowning, sexual assault, and psychological abuse).In some countries medical personnel in detention facilities monitor the abuse to ensure that the torture is not easily detected.And detainees subjected to torture are often afraid to complain to anyone for fear of reprisals against them or their family members.[16]

Lack of confidentiality makes it virtually impossible to monitor an isolated detainee. If observers have access to all detainees in a facility, and are able to speak with detainees privately, a detainee can report an incident of abuse to them without fear that he or she will be identified by the authorities, and subject to reprisals. Such confidentiality cannot be provided when only one detainee or a small group is being monitored.

In the case of Russia, the US government appears to have made no attempt to either monitor or protest the inhumane treatment of the seven ex-Guantanamo detainees in Russia, despite the fact that it was aware of Russia's pattern of abusive treatment.US officials told Human Rights Watch in July 2006 that they were not making any effort to monitor the treatment of former Guantanamo detainees in Russia.[17]

Simply monitoring a detainee's treatment after he returns home will not guarantee that he will not be tortured. But that does not mean the US government should simply ignore the fate of the detainees it has rendered to Russia.Such has been its policy until now.To protest the treatment of the detainees in Russia would certainly open the US government to charges of hypocrisy.But the US failure to investigate and protest their ill-treatment means that the Russian government has so far felt no pressure, no spotlight, no brake of any kind on its abuse of the seven ex-Guantanamo detainees. Although the US should never have returned the detainees to Russia in the first place, it ought to reverse course and seize the opportunity to protest their ill-treatment now.

The Risk of Torture and Ill-Treatment in Russia

At the time these Russian citizens were sent back from Guantanamo, the US government was clearly aware that evidence of the risk of torture in Russia was abundant. The US State Department's own human rights report for 2003, the most recent volume at the time of their refoulement, said about Russia, "There were credible reports that law enforcement personnel frequently engaged in torture, violence, and other brutal or humiliating treatment and often did so with impunity."[18] In June 2002, the United Nations Committee against Torture, the body responsible for monitoring state party compliance with the Convention against Torture, had voiced its strong concern at the "[n]umerous and consistent allegations of widespread torture and other cruel, inhuman or degrading treatment or punishment of detainees committed by [Russia's] law enforcement personnel, commonly with a view to obtaining confessions."[19] The Council of Europe's Committee for the Prevention of Torture visited Russia in December 2001 and published its report about the continuing problem of torture on June 30, 2003, citing a "disturbing number of allegations of physical ill-treatment" by police.[20]

In addition to governmental and intergovernmental sources of information about torture in Russia, international human rights groups have also written extensively about the widespread torture and mistreatment of criminal suspects in police custody in Russia.[21] As Human Rights Watch reported in 1999, torture and ill-treatment of detainees generally occurs at the time of and immediately after arrest, often through police beatings, near-asphyxiations, and the application of electroshock in the pursuit of confessions or testimony incriminating others. Aside from a very few high-profile cases in which officers have been punished for such mistreatment, the Russian police carry out torture with almost complete impunity. Provincial and federal prosecutors close their eyes to evidence of abuse. The courts commonly accept forced confessions at face value, and use them as a basis for convictions. Despite overwhelming evidence that torture has become an integral part of police practice, the Russian government and law enforcement agencies generally-with some notable exceptions-deny that torture or ill-treatment is a problem, and are not taking any measures to end these abusive practices.[22]

Russia extensively used torture against Muslim detainees, especially Chechens accused of "terrorism," before September 11. But the advent of the international "war on terror" appears to have hardened the Russian government's treatment of such suspects. The Russian human rights organization Memorial stated in February 2006, "We have extensive evidence to suggest that under the pretext of fighting 'Islamic extremism' and 'international terrorism,' a large-scale campaign of persecution of Muslim followers of so-called 'unconventional' Islamic sects has been launched in Russia."[23] Memorial estimates that torture was used in more than 40 percent of the cases involving Hizb ut-Tahrir, an Islamist organization with an international presence that has been banned in Russia.[24]

Given the massive evidence about torture in Russia, it is virtually impossible to imagine that US officials were not cognizant of the risk that the Guantanamo detainees would be tortured, or that they did not understand the extent of the risk.

Two of the Russian detainees told Human Rights Watch that US interrogators at GuantanamoBay were clearly aware that they would face torture and mistreatment back home.Indeed, interrogators used the threat of return as a pressure tactic in interrogations: "The Americans frightened us with return to Russia, [and] said that in Russia, we will be tortured,"[25] Airat Vakhitov told Human Rights Watch. "There was constant blackmail," Ravil Gumarov told Human Rights Watch. "They kept saying, 'We'll send you to Russia,' that 'They'll string you up there' and that kind of thing."[26]

Rasul Kudaev told interviewers from Reprieve, the British human rights organization,

They said, "If you don't tell us the truth, we'll send you to Afghanistan, and if after Afghanistan anything is left of you, you will be sent to Russia where you will be tortured, you will have no fingers left."[27]

Certainly the detainees themselves knew what probably awaited them if they were sent home. Most of them had had some dealings with Russian law enforcement before they went to Afghanistan, and a few of them had been seriously mistreated.According to the mother of Ruslan Odizhev, for example, her son went to Afghanistan in part because he had been extensively tortured by Russian FSB (security service) officers in 2000 and did not think he could continue to live in Russia without danger to his physical well-being.[28]Airat Vakhitov said he was beaten in 1999 while in detention for two months on suspicion of participating in illegal armed formations in Chechnya (he was never charged).After that experience he decided to leave the country."I knew my life wouldn't work out in Russia," he told Human Rights Watch.[29]

The detainees themselves say they repeatedly asked US officials and representatives of the International Committee of the Red Cross at GuantanamoBay not to be returned to Russia. "We all asked not to be returned to Russia because we were afraid of torture," Airat Vakhitov told Human Rights Watch.[30]Ravil Gumarov told Human Rights Watch, "We were asking to be sent to a third country, we didn't want to go to Russia. We said it to the Red Cross too, that we wanted to go to a third country, any Islamic country. And we were saying it to the Americans, that we weren't about to go back to Russia." According to the detainees, both the US officials and the Red Cross said they could not influence the decision. "They said, 'That's all being decided at higher levels, we don't know anything.'The Red Cross said, 'We can't do anything.' Their hands were tied."[31] Shamil Khazhiev told Human Rights Watch, "All of us asked the Red Cross over and over again not to be sent back to Russia. I didn't bother asking the Americans because it seemed useless."[32]

Alexandra Zernova, a human rights activist working with Reprieve, interviewed six of the seven detainees[33] in early October 2005.She affirmed that all of them had told her they had not wanted to be sent back to Russia, and had told US officials so.[34]

According to the detainees, representatives of the Russian government who visited the detainees at Guantanamo told them they would certainly be sent back to Russia.Airat Vakhitov said a senior investigator for the Procuracy General, Yuri Tkachev, visited him at Guantanamo and said, "We're going to return you to Russia anyway. It's going to be much worse for you there. We're going to show you."[35]In contrast, however, Ravil Gumarov claimed that Tkachev told him he'd be better off in Russia, saying, "In America you'll be in [prison] for life, in Russia we'll give you a few years."[36]

Vakhitov told Human Rights Watch that he continued trying to avoid being sent back to Russiaright up until the last minute:

I asked the Red Cross for the last time just before our return to the homeland. I asked, "Are there any alternatives?" and they said no, and it would be better if we didn't say that we didn't want to go [On February 28, 2004, the day the detainees were repatriated] I refused to go to the airport, and they [the Americans] brought in a stretcher to take me out.But when I saw the stretcher, I agreed to go on my own.[37]

[9]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the United States on October 21, 1994, art. 2(2): "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."

[10] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment;"International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

[11] Convention against Torture, art. 3(1).

[12] Foreign Affairs Reform and Restructuring Act of 1998, H.R. 1757, January 27, 1998,http://usinfo.state.gov/usa/infousa/laws/majorlaw/hr1757.pdf (accessed February 23, 2007).

[13] The US government has argued that, in respect of Guantanamo detainees, it is not bound by the nonrefoulement obligations of the Convention against Torture because GuantanamoBay is not technically part of the territorial United States, an argument that has been rejected by the US Supreme Court.But the US has also said thatit has a policy of not returning aliens held overseas to torture, even though it argues that is not legally obligated not to do so under the Convention against Torture.See Responses by the US Delegation to questions from the Committee [against Torture] (Oral presentation to the Committee), May 8, 2006, http://www.usmission.ch/Press2006/USPresentationtotheCAT.html (accessed February 15, 2007).

[14]Email communication from US State Department official Ashley Deeks to Human Rights Watch, February 26, 2007. Human Rights Watch's letter to US officials requesting information for this report can be found inAppendix I. Human RightsWatch's letter to the Russian prosecutor general's office requesting information for this report can be found in Appendix II. Russian officials did not respond to this request in time for the publication of this report.

[15] Human Rights Watch, "DiplomaticAssurances" Against Torture: Questions and Answers,November 2006, http://hrw.org/backgrounder/eca/ecaqna1106/; Still at Risk: Diplomatic Assurances No Safeguard Against Torture,vol. 17, no. 3(D), April 2005, http://hrw.org/reports/2005/eca0405/; "Empty Promises": Diplomatic Assurances No Safeguard Against Torture,vol.16, no.4(D), April 2004, http://hrw.org/reports/2004/un0404/.

[16] For this reason, UN and other anti-torture monitoring bodies insist on confidential interviews with detainees. Notably, the United Nations special rapporteur on torture, Manfred Nowak, cancelled a trip to Russia in October 2006 because the Russian government refused him confidentiality when speaking with victims of torture. "Press Conference by the United Nations Representative on Torture Convention,"United Nations Department of Public Information statement from news conference,, October 23, 2006, http://www.un.org/News/briefings/docs/2006/061023_Nowak.doc.htm (accessed January 14, 2007).

[17] Human Rights Watch interview with a US official, Moscow, July 2006.

[18] US State Department, Bureau of Democracy, Human Rights, and Labor, "Country Reports on Human Rights Practices 2003: Russia," February 25, 2004, http://www.state.gov/g/drl/rls/hrrpt/2003/27861.htm (accessed August 31, 2006).

[19] United Nations Committee against Torture, "Conclusions and recommendations of the Committee against Torture : Russian Federation," CAT/C/CR/28/4, June 6, 2002, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.28.4.En?Opendocument (accessed September 24, 2006).

[20] European Committee for the Prevention of Torture, "Report to the Russian Government on the Visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment," CPT/Inf (2003) 30, June 30, 2003,http://www.cpt.coe.int/documents/rus/2003-30-inf-eng.pdf (accessed September 24, 2006), p. 13.

[21] Human Rights Watch, Confessions at Any Cost: Police Torture in Russia, November 1999, http://www.hrw.org/reports/1999/russia/; Amnesty International, "Torture in Russia: 'This man-made Hell,'" AI Index: EUR 46/004/1997,April 1997, http://web.amnesty.org/library/index/ENGEUR460041997 (accessed September 24, 2006).

[22] Human Rights Watch, Confessions at Any Cost.

[23] Memorial (Moscow), "Concocting Criminal Proceedings for 'Islamic Extremism,'" February 2006, http://www.memo.ru/eng/memhrc/texts/2006ponomarevriabinina.shtml (accessed September 24, 2006).

[24] Ibid. The total number of people who had been convicted of membership in Hizb ut-Tahrir at the time Memorial published its paper was 46.

[25] Human Rights Watch telephone interview with Airat Vakhitov, September 7, 2006.

[26] Human Rights Watch interview with Ravil Gumarov, date and place withheld.

[27] Reprieve, "Torture Interview Outline for Guantanamo Clients, Rasul Kudaev," April 27, 2005, and October 2005, on file with Human Rights Watch, cited with permission of Reprieve.

[28] Human Rights Watch interview with Nina Odizheva, Nalchik, Russia, July 24, 2006. "FSB" stands for Federalnaia Sluzhba Bezopastnosti, or Federal Security Service, the successor to the Soviet-era KGB.

[29] Human Rights Watch telephone interview with Airat Vakhitov, September 7, 2006.

[30] Ibid.

[31] Human Rights Watch interview with Ravil Gumarov, date and place withheld.

[32] Human Rights Watch partial interview with Shamil Khazhiev, Moscow, July 27, 2006.

[33] All except Ruslan Odizhev, who had already gone into hiding.

[34] Human Rights Watch telephone interview with Alexandra Zernova, September 5, 2006.

[35] Human Rights Watch telephone interview with Airat Vakhitov, September 21, 2006. The Procuracy General is the Russian equivalent of a prosecutor general's office.

[36] Human Rights Watch interview with Ravil Gumarov, date and place withheld.

[37] Human Rights Watch telephone interview with Airat Vakhitov, September 7, 2006.