Requesting human rights and humanitarian organizations to perform selective monitoring

At least one would-be sending state has approached national institutions for the promotion and protection of human rights, and organizations devoted to the protection of human rights or similar humanitarian causes requesting that they take the responsibility of monitoring the implementation of diplomatic assurances not to torture or ill-treat, by undertaking visits to places of detention where they would monitor the treatment of only specified detainees subject to a diplomatic assurance.

One such prominent organisation which has been asked to undertake such post-return monitoring, the ICRC, has described its “prior conditions” for visiting prisoners and prisons as follows:

Drawing on the experience acquired over the years, the ICRC has established guidelines enabling it to evaluate a prison system with maximum objectivity and submit concrete and realistic proposals which take local customs and standards into account.

Whatever the circumstances, the ICRC visits people deprived of their freedom only if the authorities allow it:

to see all prisoners who come within its mandate and to have access to all places at which they are held;

to speak with prisoners in private, without the presence of any third parties;

to draw up during its visit a list of prisoners whom it considers to come within its mandate, or to receive such a list from the authorities and to check and supplement it if necessary;

to repeat its visits to all prisoners of its choice if it considers that the situation so warrants, and to do so as often as it wishes.³³

In the specific context of diplomatic assurances, the ICRC was in 1999 approached as a potential monitoring body for such assurances involving the UK and Egypt. Its response was described by a UK Court (citing a UK government source) in the Youssef case as follows:

The ICRC… would not visit particular prisoners without a general agreement allowing it access to all prisoners and would not get involved in any process which could in any way be perceived to contribute to, facilitate, or result in the deportation of individuals to Egypt.³⁴

It has also been noted that financial or other support by any of the state parties to an organization or body requested to take on the role of post-return monitoring in the context of diplomatic assurance could raise questions about the independence of the monitoring body.

[33]ICRC website, http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList265/929018E28243CCB0C1256B6600600D8C, accessed 28 October 2005.

[34] Hani El Sayed Sabaei Youssef v. The Home Office [2004] EWHC 1884 (QB), 30 July 2004, para. 26.

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December 2005