<<previous  |  index  |  next>>

Concerns expressed by international and regional human rights monitoring bodies and experts

There is a growing consensus among governments and international experts that diplomatic assurances are an inadequate safeguard against torture and other ill-treatment. 

Most recently, this consensus was reflected in the adoption, by consensus by the 3^rd Committee of the UN General  Assembly, of new language in the resolution on torture that such diplomatic assurances “do not release States from their obligations under international human rights, humanitarian and refugee law…” ¹⁶ 

This resolution followed the UN Special Rapporteur on torture’s submission to the General Assembly of his interim report in which he discussed the issue of diplomatic assurances at some length. He reached the following conclusions:

It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated.

The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return.

The Special Rapporteur calls on Governments to observe the principle of non-refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.¹⁷

In his report to the UN Commission on Human Rights, the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism noted:

Given the absolute obligation of States not to expose any person to the danger of torture by way of extradition, expulsion, deportation, or other transfer, diplomatic assurances should not be used to circumvent that non-refoulement obligation.¹⁸

Concern about the use of diplomatic assurances was also expressed in a research report commissioned by the United Nations High Commissioner for Refugees (UNHCR):

Assurances by the requesting State that it will not expose the person concerned to torture, or to inhuman or degrading treatment or punishment, will not normally suffice to exonerate the requested state from its human rights obligations, particularly where there is a pattern of such abuses in the State seeking extradition. In such cases, the requested State is bound to refuse the surrender of the wanted person…¹⁹

A landmark decision by the UN Committee against Torture in May 2005 found that Sweden had violated its obligation not to return a person to torture or other ill-treatment in the case of Ahmed Agiza, an Egyptian national forcibly returned to Egypt in 2001. In its decision, the Committee concluded, inter alia, the following:

The Committee considers at the outset that it was known, or should have been known, to the State party’s authorities at the time of the complainant’s removal that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons. […] The State party was also aware of the interest in the complainant by the intelligence services of two other States: according to the facts submitted by the State party to the Committee, the first foreign State offered through its intelligence service an aircraft to transport the complainant to the second State, Egypt, where to the State party’s knowledge, he had been sentenced in absentia and was wanted for alleged involvement in terrorist activities. In the Committee’s view, the natural conclusion from these combined elements, that is, that the complainant was at a real risk of torture in Egypt in the event of expulsion, was confirmed when, immediately preceding expulsion, the complainant was subjected on the State party’s territory to treatment in breach of, at least, article 16 of the Convention by foreign agents but with the acquiescence of the State party’s police. It follows that the State party’s expulsion of the complainant was in breach of article 3 of the Convention. The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.²⁰

In Chahal v. the United Kingdom, the European Court of Human Rights took a firm principled position against diplomatic assurances that torture or ill-treatment would not be practised.²¹ The applicant, a Sikh separatist, claimed that if deported to India, he would face a real risk of being tortured or killed. The Indian Government had provided an assurance to the government of the United Kingdom that Karamjit Singh Chahal “would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities.”²²

The Court, however, ruled the following:

Although the Court is of the opinion that Mr Chahal, if returned to India, would be most at risk from the Punjab security forces acting either within or outside state boundaries, it also attaches significance to the fact that attested allegations of serious human rights violations have been levelled at the police elsewhere in India. In this respect, the Court notes that the United Nations' Special Rapporteur on torture has described the practice of torture upon those in police custody as "endemic" and has complained that inadequate measures are taken to bring those responsible to justice…

Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above… it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem.²³

More recently, a February 2005 Grand Chamber judgment of the European Court of Human Rights served to illustrate the difficulties of verifying compliance with assurances where the states involved are unwilling to cooperate. The case concerned Rustam Mamatkulov and Abdurasulovic Askarov, two citizens of Uzbekistan whom Turkey had forcibly returned to Uzbekistan after obtaining assurances from the government of Uzbekistan that the men would not be subjected to torture or the death penalty upon return. The transfers were made despite a request for interim measures by the European Court of Human Rights that Turkey refrain from extraditing the men until their applications to the Court had been considered. In its ruling, the Grand Chamber concluded that Turkey had violated the men’s rights, under Article 34 of the ECHR, to petition the European Court of Human Rights, by failing to comply with the interim measures. Significantly, the Court also ruled that Turkey’s refusal to suspend the extraditions had denied the men the opportunity to place evidence before the Court that could have established that they were at risk of torture or other ill-treatment if returned to Uzbekistan.²⁴ In concluding that it was unable to conduct a proper assessment on the issue of an Article 3 violation because of Turkey’s failure to comply with the court’s request for interim measures, the Court stated the following:

In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court’s determination of the justification for the measure. [...] In the present case, the applicants were extradited and thus, by reason of their having lost contact with their lawyers, denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained. As a consequence, the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment and, if so, from ensuring in this respect a “practical and effective” implementation of the Convention’s safeguards, as required by its object and purpose.²⁵