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Post-return monitoring mechanisms are inherently problematic

Arguments that post-return monitoring can make diplomatic assurances work ignore the serious limitations of such monitoring and the difficulty of detecting many forms of torture and ill-treatment. Torture and other ill-treatment are practiced in secret and the perpetrators of such abuse are generally expert at keeping it from being detected. People who have suffered torture and ill-treatment are often reluctant to speak about it due to fear of retaliation against them and/or their families. 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.

Indeed, it has been argued that monitoring one or a few designated detainees (as opposed to systematic and generalized monitoring) actually could make those detainees and members of their families more vulnerable to abuse. Periodic visits simply cannot protect an isolated detainee. They may confront a detainee who has been tortured or otherwise ill-treated with a very serious dilemma: forcing him or her to choose between, on the one hand, pretending he or she was never mistreated, denying the shattering experience of torture, or, on the other, reporting his or her mistreatment, knowing the account will be traced back to him or her and that, in retaliation, he or she might be tortured again. It is precisely to protect detainees from such situations that the International Committee of the Red Cross (ICRC) insists on monitoring an entire prison population – it preserves the anonymity of the person reporting ill-treatment.

As explained in detail in the section below, however, even monitoring by the ICRC cannot – and does not purport to – be a panacea for preventing torture and other ill-treatment. For these reasons, any attempts to argue that post-return monitoring should be given further consideration in the context of discussions of diplomatic assurances as a device that could potentially make transfers based on such assurances compatible with states’ absolute non-refoulement obligation are fundamentally misguided.