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Call for Action against
the Use of Diplomatic Assurances in Transfers to Risk of Torture and
Ill-Treatment
Joint Statement
Amnesty International, Association for the Prevention of Torture, Human
Rights Watch, International Commission of Jurists, International Federation of
Action by Christians for the Abolition of Torture, International Federation for
Human Rights, International Helsinki Federation for Human Rights, and World
Organisation Against Torture
May 2005
Governments in Europe and North America are increasingly sending alleged
terrorism suspects and others to abusive states based on so-called
"diplomatic assurances" of humane treatment that expose these
individuals to serious risk of torture or cruel, inhuman, or degrading
treatment or punishment (ill-treatment) upon return. Countries offering such
assurances have included those where torture and other ill-treatment are often
practised, as well as those where members of particular groups are routinely
singled out for the worst forms of abuse.
This is a deeply troubling trend. The international legal ban on torture and
other ill-treatment is absolute and prohibits transferring persons -- no matter
what their crime or suspected activity -- to a place where they would be at
risk of torture and other ill-treatment (the nonrefoulement obligation).1
No exceptions are allowed, even in time of war or national emergency. In the
face of this absolute ban, many sending governments have justified such
transfers by referring to diplomatic assurances they sought from the receiving
country that the suspects would not be tortured or ill-treated upon return.
It is the position of the undersigned organizations that diplomatic assurances
are not an effective safeguard against torture and other ill-treatment. Indeed,
evidence is mounting that people who are returned to states that torture are in
fact tortured, regardless of diplomatic assurances. 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, including the nonrefoulement obligation.
The essential argument against diplomatic assurances is that the perceived need
for such guarantees in itself is an acknowledgement that a risk of torture and
other ill-treatment exists in the receiving country. In order for torture and
other ill-treatment to be prevented and eradicated, international law requires
that systemic safeguards at legislative, judicial, and administrative levels
must be implemented on a state-wide basis. Such systemic efforts cannot be
abandoned and replaced by consular visits aimed at ensuring compliance with
diplomatic assurances.
Diplomatic assurances are also problematic for a number of other reasons.
First, they are based on trust that the receiving state will uphold its word
when there is no basis for such trust. Governments that torture and ill-treat
almost always deny such abusive practices. It defies common sense to presume
that a government that routinely flouts its binding obligations under
international law and misrepresents the facts in this context can be trusted to
respect a promise in an isolated case. As noted above, diplomatic assurances
are only sought from countries with well-known records of torture and other
ill-treatment.
Second, states have a legal interest in ensuring that torture and other
ill-treatment are prevented and prohibited, and that all persons are protected
from such treatment, anywhere and in all places (the erga omnes nature
of the prohibition against torture and other ill-treatment). Implicit in such a
legal interest is a general duty of enforcement and remedy on the part of the
whole international community, and the principle that states also have an
obligation not to facilitate violations of the ban on torture and other
ill-treatment, not only by their own agents but also by agents of another
state. Transferring individuals to states where they are at risk of torture and
other ill-treatment, under the rationale of inherently unreliable diplomatic
assurances, flies in the face of this principle. Moreover, to seek assurances
only for the person subject to transfer amounts to acquiescing tacitly in the
torture of others similarly situated in the receiving country, and could be
considered to constitute a general abdication by the sending state of its
obligations.
A third problem relates to post-return monitoring mechanisms, which some
governments argue can make diplomatic assurances work. Torture and other
ill-treatment are practised in secret and its perpetrators are generally expert
at keeping such abuses from being detected. People who have suffered torture
and other ill-treatment are often reluctant to speak about it due to fear of
retaliation. Post-return monitoring schemes often lack many basic safeguards,
including private interviews with detainees without advance notice to prison
authorities and medical examinations by independent doctors.
Fourth, when diplomatic assurances fail to protect returnees from torture and
other ill-treatment, there is no mechanism inherent to the assurances
themselves that would enable a person subject to the assurances to hold the
sending or receiving governments accountable. Diplomatic assurances have no
legal effect and the person they aim to protect has no effective recourse if
the assurances are breached.
A fifth problem stems from the fact that the sending government has no
incentive to find that torture and other ill-treatment has occurred following
the return of an individual -- doing so would amount to an admission that it
has violated its own nonrefoulement obligation. As a result, both the
sending and receiving governments share an interest in creating the impression
that the assurances are meaningful rather than establishing that they actually
are.
Finally, it is important to distinguish diplomatic assurances against the death
penalty from assurances as guarantees against torture and other ill-treatment.
The undersigned organizations oppose the death penalty absolutely, but
recognize that, subject to certain conditions, it is not prohibited per se
under international law. Diplomatic assurances with respect to the death
penalty thus simply acknowledge the different legal approaches of two states
and serve as a tool that allows an exception to one states laws and policies
as an accommodation to the concerns of another state. Assurances against
torture and other ill-treatment, however, do not acknowledge lawful activity,
but unlawful, criminal behaviour to which persons in the receiving state are
routinely subjected. As such, they are effectively an admission that the
receiving state is in violation of the prohibition against torture and other
ill-treatment.
Moreover, monitoring a government's compliance with assurances that it will not
apply or carry out the death penalty is easier than monitoring compliance with
assurances against torture, which is practised in secret. The death penalty is
rarely carried out immediately after a person's return, thus any potential
breach of the assurances (e.g. sentencing a person to the death penalty despite
assurances to the contrary) can usually be identified and addressed before the
sentence is carried out. In cases where diplomatic assurances are proffered as
a guarantee of protection against torture, however, sending states run the
unacceptable risk of being able to identify a breach, if at all given the
secrecy surrounding torture, only after torture and other ill-treatment have
already occurred.
In a welcome move, some national courts have recognized the problems associated
with assurances against torture and other ill-treatment, subjecting diplomatic
assurances to greater scrutiny and blocking returns based on these empty
promises. At the international level, the United Nations Special Rapporteur on
Torture, the U.N. Independent Expert on human rights and counter-terrorism, and
the Council of Europe Commissioner for Human Rights have all warned that the
use of assurances is threatening the global ban on torture and other
ill-treatment.
Suggestions have been made that "minimum standards" on the use of
diplomatic assurances against torture and other ill-treatment could be
established. Such efforts are misguided and dangerous. They could easily be
perceived to legitimize or otherwise endorse the use of diplomatic assurances
for returns where there is a risk of torture and other ill-treatment.
Developing guidelines for the acceptable use of inherently unreliable and
legally unenforceable assurances ignores the very real threat they pose to the
integrity of the absolute prohibition against torture and other ill-treatment,
including the ban on transferring a person to a place where he or she would be
at risk of such abuse.
We are concerned that sending countries that rely on diplomatic assurances are
using them as a device to circumvent their obligation to prohibit and prevent
torture and other ill-treatment, including the nonrefoulement
obligation. The use of such assurances violates the absolute prohibition
against torture and other ill-treatment and is eroding a fundamental principle
of international human rights law. The practice should stop.
Recommendations to governments and the international
community
The undersigned organizations call on governments to undertake the following
measures as a matter of urgent priority:
- Reaffirm the absolute nature of the obligation
under international law not to expel, return, extradite, render, or
otherwise transfer (hereinafter "transfer") any person to a
country where there are substantial grounds for believing that he or she
would be in danger of being subjected to torture and other ill-treatment.
- Prohibit reliance upon diplomatic assurances in
situations where there are substantial grounds for believing that a person
would be in danger of being subjected to torture and other ill-treatment
upon return, including but not limited to cases in which the following
circumstances prevail in the receiving country:
- there are substantial grounds for believing
that torture and other ill-treatment in the receiving country are
systematic, widespread, endemic, or recalcitrant or persistent problems;
- governmental authorities do not have effective
control over the forces in their country that perpetrate acts of torture
and other ill-treatment;
- governmental authorities consistently target
members of a particular racial, ethnic, religious, political or other
identifiable group, including terrorism suspects, for torture and other
ill-treatment and the person subject to transfer is associated with that
group;
- there is a risk of torture and other ill-treatment
upon return directly related to a persons particular circumstances;
- there is any indication that the receiving
government would subsequently transfer the individual to a third state
where he or she would be at risk of torture and other ill-treatment.
- Ensure that any person subject to transfer has
the right, prior to transfer, to challenge its legality before an
independent tribunal. The legal review must include an examination of all
relevant information, including that provided by the receiving state, and
any mutual agreements related to the transfer. Persons subject to transfer
must have access to an independent lawyer and a right of appeal with
suspensive effect.
- Include in required periodic reports to the
United Nations Committee against Torture, the Human Rights Committee, and
other relevant international and regional monitoring bodies detailed
information about all cases in which diplomatic assurances against the
risk of torture and other ill-treatment have been sought or secured in
respect of a person subject to transfer, as such action clearly implicates
states absolute obligation to prohibit and prevent torture and other
ill-treatment, including the nonrefoulement obligation.
We further call on the international community, in particular intergovernmental
institutions whose mandate includes monitoring states' compliance with their
obligations pertaining to torture and other ill-treatment, to:
- Reaffirm the absolute and non-derogable nature
of the prohibition against torture and other ill-treatment, of which the
absolute and non-derogable obligation not to transfer any person to a
country where there are substantial grounds for believing that he or she
would be at risk of torture and other ill-treatment is an integral
component.
- Declare that diplomatic assurances in relation
to torture and other ill-treatment are inherently unreliable and do not
provide an effective safeguard against such treatment, and make clear 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, including the nonrefoulement
obligation.
- Reject any attempt to establish minimum
standards for the use of diplomatic assurances against the risk of torture
and other ill-treatment as incompatible with the absolute prohibition in
international law against torture and other ill-treatment, including the nonrefoulement
obligation.
______________________________________________________________________________________________
1The nonrefoulement obligation enshrined in the 1951
Convention relating to the Status of Refugees and its 1967 Protocol do permit
an exception to this principle in very narrowly defined circumstances. However,
no such exceptions are permitted under the general international legal ban on
torture and refoulement as enshrined in Article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
Article 7 of the International Covenant on Civil and Political Rights; and
under customary international law.
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