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Visits cannot replace the need for extensive, system-wide measures to prevent torture and other ill-treatment

As noted above, receiving states that provide diplomatic assurances are already under a duty under customary law not to subject detainees to torture or other ill-treatment and most will have previously entered binding multi-lateral agreements (as parties to treaties) not to torture or ill-treat any person. These firm undertakings are contained in such instruments as the UN Convention against Torture, the ICCPR, and the Geneva Conventions. In light of this fact, the UN Special Rapporteur on torture has stated that:

… such memoranda of understanding therefore do not provide any additional protection to the deportees.²⁷

The need to enter yet another agreement on the same subject arises from the fact that the receiving state’s continuous breaches of its international obligation not to torture or otherwise ill-treat detainees has come to the light, including to the would-be sending state. As noted by the Council of Europe’s Commissioner for Human Rights “…the weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances there is clearly an acknowledged risk of torture and ill-treatment.”²⁸  The value of signing an “understanding” or accepting an “assurance” from a state that does not respect even legally-binding multi-lateral agreements prohibiting torture and other ill-treatment is necessarily cheap. Promises to take measures detailed in diplomatic assurances are mere repetitions – indeed, pale echoes – of treaty and other international obligations which receiving states have already promised but failed to respect in the past.

The reliance on such non-binding agreements to enforce legally binding obligations may, in fact, undercut the credibility and integrity of universally binding legal norms and their system of enforcement. This is particularly the case if authorities in a country have persistently refused access to existing international mechanisms.²⁹

Many of these arrangements rely on a single “new” safeguard: visits to the person in question, either by the sending state’s diplomats or by “a representative of an independent body.”³⁰ These mechanisms have not proved to be effective to prevent torture or other ill-treatment.

As noted above, officials that engage in torture or other ill-treatment are often skilled at preventing any visible manifestations, and are typically capable of ensuring, through threats, that no complaints would be heard by visiting monitors. Even where carried out by a professional and dedicated organization, visits to places of detention, while constituting a crucial element in the prevention of torture and other ill-treatment, are far from being sufficient on their own to prevent them. The ICRC’s experience in Iraq and Guantánamo Bay, where torture and ill-treatment were inflicted extensively even though the ICRC was conducting regular visits, monitoring abuse and protesting consistently, are a stark recent example. It should be noted that the ICRC itself has never claimed that visits by its staff to places of detention are all that is needed to safeguard against torture and ill-treatment, and have refused to take part in monitoring ‘diplomatic assurances’ (see below, point 6).

Member states of the Council of Europe have adopted a treaty establishing a unique regional visiting mechanism – the European Committee for the Prevention of Torture and other Inhuman or Degrading Treatment or Punishment (CPT). However, this mechanism, as important as it is, is by no means sufficient to ensure that that torture and other ill-treatment do not occur in the places that they visit in Council of Europe member states. The CPT itself has detailed, both in its reports (which set out specific recommendations) to the government concerned and in general reports, measures which it considers essential for the prevention of torture and other ill-treatment,³¹ rather than ever claiming that its visits are all that is needed to prevent torture and ill-treatment.

There is a substantial gap between the multifaceted requirements of international law to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,”³² and their implementation in practice, on the one hand, and the single safeguard of occasional visits by diplomats or by “an independent body” provided in diplomatic assurances and memoranda of understanding on the other.