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Diplomatic Assurances

Human Rights Watch is deeply concerned about the Government’s intention to seek “framework agreements” with governments in the countries of origin of foreign nationals subject to indefinite detention without trial, as a means of effecting their deportation. These agreements would include assurances from the authorities in the receiving countries that the individuals will not be tortured or ill-treated upon return. In a speech to the House of Commons on January 26, 2005, Home Secretary Charles Clarke spoke of deportations as the second rail in the Government’s “twin-track approach.” Foreign Office Minister Baroness Symons travelled in January 2005 to Algeria, Morocco, and Tunisia, for negotiations with the governments of those countries that would facilitate the men’s deportation.¹⁷ Although the Bill under consideration does not address this issue, the use of framework agreements or “diplomatic assurances” is a component of the Government’s counter-terrorism strategy that merits careful consideration.

International law prohibits the return, deportation or extradition of a person when there are substantial grounds for believing he or she would be at risk of torture.¹⁸ Human Rights Watch research globally demonstrates that diplomatic assurances are an ineffective safeguard against the risk of torture and prohibited ill-treatment.¹⁹ First, governments that seek diplomatic assurances usually do so from states where torture and ill-treatment are systematic or widespread problems. These states routinely deny that torture is practiced – often in the face of overwhelming, credible evidence – and will offer assurances that are virtually meaningless. Second, pre-agreed monitoring schemes, when adopted, often lack sufficient safeguards to ensure that torture is detected, including unhindered access by independent experts to places of detention through unannounced visits with the opportunity to meet in total privacy with the returnees. Third, the system of diplomatic assurances does not create any accountability for sending governments. In instances where there is credible evidence of torture, the sending government will simply place blame on the receiving government as the party that has violated the assurances.

The case of two Egyptian men expelled from Sweden to Egypt in December 2001, is an illustration of the dangers of relying on assurances. Ahmed Agiza and Mohammed al-Zari, both Egyptian nationals who had sought asylum in Sweden, were expelled from Sweden and forcibly returned to Egypt on December 18, 2001. The expulsions followed diplomatic assurances by the Egyptian government that the men would not be subjected to torture or ill-treatment upon return. The men were held incommunicado in police custody and subsequently credibly claimed that they had been tortured routinely in the course of those five weeks. The pre-agreed monitoring mechanism proved wholly ineffective: no visits were conducted during the five-week incommunicado period, and subsequent visits took place in circumstances woefully lacking the most basic conditions for confidentiality and expertise in detecting all forms of torture and prohibited ill-treatment. The Egyptian authorities simply issued a blanket denial that torture or ill-treatment had occurred.

The European Court of Human Rights has addressed the issue of states parties’ reliance

on diplomatic assurances as a safeguard against violations of states’ obligations under

article 3 of the European Convention. In Chahal v. United Kingdom, the court ruled that the return to India of a Sikh activist would violate the U.K.’s obligations under article 3, despite diplomatic assurances proffered by the Indian government that Chahal would not suffer mistreatment at the hands of the Indian authorities. In the 1996 ruling, the court cited violation of human rights by security forces in India as a “recalcitrant and enduring problem” and stated that “the Court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety.”²⁰ 

More recently, key international actors have expressed concerns about the increasing reliance on diplomatic assurances. Council of Europe Commissioner for Human Rights Alvaro Gil-Robles has stated that unless the receiving state exercises effective control over non-state actors and does not practice or condone torture or ill-treatment, “it is highly questionable whether assurances can be regarded as providing indisputable safeguards against torture and ill-treatment”.²¹ The U.N. Special Rapporteur on Torture has also indicated that reliance on assurances is a “practice that is increasingly undermining the principle of non-refoulement.”²²