October 22, 2008

Regional Developments

The UK has advocated in a number of intergovernmental fora for the broader acceptance of diplomatic assurances to effect transfers of national security suspects. It has been active, for example, in intervening in cases at the European Court of Human Rights that involve diplomatic assurances.

European Court of Human Rights

In a string of cases decided in the first half of 2008, the European Court of Human Rights reaffirmed the absolute ban on sending persons-no matter what their status or suspected crimes-to places where they are at risk of torture or cruel, inhuman and degrading treatment, despite diplomatic assurances against such abuse from their home governments. In one of those cases, Saadi v. Italy, the British government took the unusual step of intervening as a third party in an effort to persuade the court to rule in Italy's favor.

The logic of the absolute prohibition on returns to risk of torture was first articulated in the landmark European Court decision of Chahal v. UK. In that case, the court ruled that the UK could not return Karamjit Singh Chahal, an alleged Sikh militant, to India in reliance on diplomatic assurances against torture from New Delhi, no matter what crimes he was suspected of or his status in the UK.[50] The British government had argued that Chahal had such a high profile in the UK and India that he would be guaranteed fair treatment. The European Court, however, ruled that the UK's public branding of Chahal as a "terrorist," coupled with the Indian government's lack of control over brutal security forces in the Punjab, instead made him particularly vulnerable to torture and ill-treatment. Careful not to doubt the good faith of the Indian government in providing the assurances, the Court noted that human rights violations by certain members of the Indian security forces were a "recalcitrant and enduring problem. Against this background, the court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety."[51]

The European Court decisively returned to the principles of Chahal in 2008. Without ruling that removals on the basis of diplomatic assurances per se violate article 3, the court fashioned an approach that rightly questions the reliability of promises of humane treatment from governments that routinely torture and ill-treat detainees or members of specific minority, ethnic, or political groups.

The first such ruling came in the Saadi case. On February 28, 2008, the court ruled that Italy would violate article 3 if it deported Nassim Saadi, a Tunisian national lawfully residing in Italy, to Tunisia.[52] Saadi had been convicted in absentia of terrorism-related offenses in Tunisia, and had been sentenced to 20 years' imprisonment. He claimed that he would be at risk of torture and ill-treatment in Tunisia, where the mistreatment of suspected terrorists is routine and well documented.

In an ill-fated attempt to encourage the court to revisit the Chahal decision, the British government intervened in Saadi to argue that the right of a person to be protected from ill-treatment abroad should be balanced against the risk he posed to the deporting state. The government had intervened in an earlier case, Ramzy v. Netherlands, with the same arguments, and requested that the court include its intervention in Ramzy for consideration in Saadi.[53]

British officials also pressed other governments through the EU Justice and Home Affairs Council to intervene in Ramzy, but only Lithuania, Portugal, and Slovakia joined the UK government's intervention.[54] The main purpose of the UK's intervention was to ask, "[W]hy should it be irrelevant, in considering whether removal would amount to inhuman and degrading treatment, that the person to be removed himself posed a real risk to the lives of the citizens of the Contracting state?"[55] The intervention went on to request a reconsideration of the Chahal decision and the establishment of a new test in removal cases that would balance national security considerations against other relevant factors.[56]

 

The Saadi court rejected this argument outright. As the court explained,

[T]he argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of "risk" and "dangerousness" in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not.[57]

As for the assurances, Tunisia declined to provide the Italian authorities with the detailed set of guarantees they had requested. Instead, in a note verbale dated July 10, 2007 (the day before the European Court hearing), the Tunisian Ministry of Foreign Affairs observed that Tunisian laws guaranteed prisoners' rights and that Tunisia had acceded to "the relevant international treaties and conventions." The court, however, observed that "the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention."[58]

The court went on to note that even explicit and detailed assurances would not necessarily be sufficient. The court explained, "[T]hat would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time."[59]

In response to the British government's intervention in Saadi, the House of Commons Foreign Affairs Committee roundly upbraided the government. The Committee pointed out that "in the case of Saadi v. Italy, the Government clearly attempted to water down its anti-torture commitments." The Committee noted that "it is disturbing and surprising that such arguments were made in the name of the United Kingdom and we believe this gives cause for serious concern."[60]

In two subsequent rulings, involving transfers from Russia to Central Asian republics, the European Court continued to uphold its commitment to the Saadi standard. In Ismoilov v. Russia, decided in April 2008, the petitioners were a group of Uzbek refugees who were detained in the Russian city of Ivanovo. The Tashkent authorities, known for the systematic practice of torture, claimed that the men had been involved in fomenting the 2005 events in the Uzbek city of Andijan, in which hundreds of unarmed protesters were killed by state security forces. The Russian courts ruled in favor of the men's extradition, relying on promises of humane treatment and fair trial from the Uzbek authorities. The European Court ruled that given Uzbekistan's well document record of torture, "the Court is not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment."[61]

The Court's June 2008 ruling in Ryabikin v. Russia was notable, among other things, because Aleksandr Ryabikin, threatened with extradition from Russia to Turkmenistan, was not a threat to national security, but an alleged white collar criminal. The European Court ruled that if extradited he would "almost certainly be detained and runs a very real risk of spending years in prison." Taking note of Turkmenistan's extremely poor conditions of detention, as well as problems of ill-treatment and torture, the Ryabikin panel invoked Saadi, recalling "that diplomatic assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention."[62]

With Saadi, Ismoilov,and Ryabikin the Court has reaffirmed its strong commitment to the nonrefoulement obligation set out in Chahal and its displeasure with states' attempts to circumvent the Convention by negotiating dubious bilateral "human rights" agreements under the table.

European Union

In recent years, the UK has extended its direct advocacy effort on diplomatic assurances to the European Union. Although most counterterrorism policy is set at the national level, the EU has taken up select issues for consideration and consensus, including the definition of terrorism and the question of a regional arrest warrant. The UK is currently leading an effort, through the G6 group of interior ministers (France, Germany, Italy, Poland, Spain, and UK), for broader EU endorsement of its "deportation with assurances" policy.

At the end of a May 2007 G6 meeting in Venice, the interior ministers issued a statement referring to the question. It said,

The Ministers believe that, in some legally regulated cases, expulsion related to terrorism has proven to be an effective tool for States in order to protect their people from foreign nationals that are believed to pose a threat to national security. The Ministers discussed the difficulties faced by States in seeking to implement an effective expulsion policy: the need to protect national security and the human rights of those who pose a threat. To that aim, they decided to analyse better the different mechanisms that exist, including a case by case approach, diplomatic contacts or assurances, that could be useful under certain circumstances for promoting, in repatriation States, patterns of conduct compliant with the international obligations as to the safeguard of human rights. They agreed to promote a more in-depth common study about the different systems and best practices. The need for further consideration by the European Union in this field has also been underlined.[63]

The public conclusions of the October 2007 G6 meeting were considerably more definitive. They said in no uncertain terms that the G6 governments "will initiate and support continued exploration of the expulsion of terrorists and terrorist suspects, seeking assurances through diplomatic understandings and other policies. In relation to the EU, the governments will seek to build consensus on these issues."[64]

In an attempt to start building such a consensus, the British government circulated a memorandum in advance of a November 2007 meeting of EU interior ministers that asserted that the expulsion of terrorism suspects is an effective tool to protect people from foreigners who threaten national security. It argued that "the mechanism of seeking assurances, on a government-to-government basis" could be a "way forward."[65] The working group setting the agenda for the Justice and Home Affairs Council meeting that November declined to put the issue of diplomatic assurances on the agenda, however, signaling unease among some member states that the use of such assurances could be enshrined as a matter of EU policy.

In February 2008, Baroness Sarah Ludford, MEP, a vocal opponent of the British government's "deportation with assurances" policy, raised the issue of diplomatic assurances with the European Commission and requested a written opinion on the Commission's position on the use of assurances in the European Union. The Directorate General for External Relations (RELEX) responded in writing soon thereafter. It cited the Saadi decision as controlling in Europe, and referred to a 2006 opinion by the European Commission for Democracy through Law (Venice Commission), the Council of Europe's advisory body on constitutional matters. The Venice Commission had concluded that "when there is substantial evidence that a country practises or permits torture in respect of certain categories of prisoners, Council of Europe member states must refuse the assurances in cases of requests for extradition of prisoners belonging to those categories."[66] It went on to express strong concern that the use of such assurances undermines the global ban on torture and efforts to eradicate such abuse, stating,

[T]o negotiate for protection from torture on a case by case basis implies that a state does use torture sufficiently regularly for the assurance to be necessary in an individual case. Seeking assurances thus implies acceptance of that state of affairs, and an understanding that the universal international prohibition on torture is taken less seriously than the terms of an individual bilateral assurance. Assurances may thus encourage States which routinely practise torture in the belief that such practices are tolerated in at least some cases.[67]

[50]Chahal v. United Kingdom, 70/1995/576/662, November 15, 1996, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695881&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649  (accessed September 30, 2008).

[51] Ibid., para. 105.

[52]Saadi v. Italy, Application No. 37201/06, February 28, 2008, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=829510&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (accessed September 30, 2008).

[53] Observations of the Governments of Lithuania, Portugal, Slovakia, and the United Kingdom Intervening in Application No. 25424/05, Ramzy v. Netherlands, December 2005, on file with Human Rights Watch.

[54] European Union, Justice and Home Affairs Council, Meeting on October 12, 2005. Main results of Council: "Article 3 of the European Convention on Human Rights. The Presidency briefed the Council about the UK and the Netherlands positions regarding the possibility for the European Court of Human Rights of revisiting an earlier Court decision in the 1996 Chahal case," (undated), http://www.fco.gov.uk/Files/kfile/JHA_12Oct_Results,0.pdf (accessed October 4, 2008), p. 19.

[55] Observations of the Governments of Lithuania, Portugal, Slovakia, and the United Kingdom Intervening in Application No. 25424/05, Ramzy v. Netherlands, para. 27.1.

[56] Ibid., para. 37.

[57]Saadi v. Italy,  para. 139.

[58] Ibid., para. 147.

[59] Ibid., para. 148.

[60] House of Commons Select Committee on Foreign Affairs, Ninth Report, Session 2007-08, July 9, 2008,  http://www.publications.parliament.uk/pa/cm200708/cmselect/cmfaff/533/53306.htm#a11 (accessed September 30, 2008), para. 72.

[61]Ismoilov v. Russia, Application No. 2947/06, April 24, 2008,   http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=69746&sessionId=14266138&skin=hudoc-en&attachment=true (accessed September 30, 2008), para. 127. This case has been referred to the Grand Chamber of the European Court. 

[62]Ryabikin v. Russia, Application No. 8320/04, June 19, 2008, http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=71139&sessionId=14266163&skin=hudoc-en&attachment=true (accessed September 30, 2008), paras. 116, 119.

[63]Conclusions of the May 2007 Meeting of the Interior Ministers of France, Germany, Italy, Poland, Spain and the United Kingdom, http://press.homeoffice.gov.uk/press-releases/g6-meeting-conclusion-0507?version=1 (accessed September 30, 2008).

[64] Joint Declaration by the Ministers of Interior of G6 States, Sopot, October 18, 2007, www.statewatch.org/news/2007/oct/g6-poland-oct-07.pdf (accessed September 30, 2008), para. 3.

[65] General Secretariat of the Council, Directorate General H2 (Justice and Home Affairs), Room Document: Article 36 Committee, Proposal from the UK Delegation: Expulsion of Terrorist Suspects: EU Council Conclusions, para. 5 (proposed language), on file with Human Rights Watch.

[66] European Commission for Democracy Through Law (Venice Commission), Opinion: On the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, Opinion no. 363, 2005, CDL-AD(2006)009, March 17, 2006, http://www.venice.coe.int/docs/2006/CDL-AD(2006)009-e.asp#_Toc130704778 (accessed October 5, 2008), para. 142.

[67] European Commission, Response to Question Tabled by Baroness Sarah Ludford under Agenda Item 7 of the Subcommittee on Human Rights of the European Parliament, (PE402.663vo1-00), February 28, 2008, on file with Human Rights Watch.