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Diplomatic assurances have a proven record of failure

The Agiza case, discussed above, constitutes a glaring example of diplomatic assurances failing to fulfil their stated purpose to protect the person subject to the assurances from torture and other ill-treatment. It illustrates the ineffectiveness of diplomatic assurances as a safeguard against torture, even when coupled with a post-return monitoring mechanism.

Another well-documented case is that of Maher Arar, a Syrian-Canadian of dual nationality, who was transferred to Jordan by the United States in 2002, and from there to Syria following assurances from the Syrian government that he would not be subjected to torture or other ill-treatment. Syrian authorities denied Arar’s subsequent claims that he had been tortured whilst being interrogated in Syria and the U.S. government accepted the Syrian denial of torture at face value.³⁵ However, a professional investigation into Maher Arar’s treatment by an expert on behalf of a Canadian Commissioner of Inquiry recently concluded that Maher Arar was in fact tortured while in custody. He stated:

I conclude that Mr. Maher Arar was subjected to torture in Syria. The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar’s psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated.³⁶

The European Court of Human Rights, in the case of Shamayev and Others v. Georgia and Russia,³⁷ experienced directly the total failure of diplomatic assurances to provide those who received them with any real power to react meaningfully where those who had proffered such assurances chose to ignore them. In this case, Georgia extradited five of the applicants, who were Chechens, to Russia, despite a request by the Court for interim measures requiring that none of the 13 be extradited. Subsequently, the Russian government offered diplomatic assurances, including guarantees of unhindered access of the applicants to appropriate medical treatment, to legal advice, and even to the European Court of Human Rights itself. The Russian government also gave assurances that the applicants would not be subject to the death penalty and that their health and safety would be protected. ³⁸  However, when the Court subsequently declared the applications admissible and decided to send a fact-finding mission to visit the applicants in Georgia and Russia, the Russian authorities stated that Stavropol Regional Court, within whose jurisdiction the five extradited applicants were detained, had refused to give the delegation access to the applicants at that stage in the domestic proceedings. The Court issued an angry response, stressing, inter alia, that “[T]he issue of access to the applicants is a matter of international law – in particular the European Convention on Human Rights, which, under Russian law, takes precedence over domestic law – and, therefore, falls to be decided solely by the European Court of Human Rights.”³⁹

In a recent immigration case in Canada,⁴⁰ the Federal Court described how even the Canadian government itself, while actively seeking to expel the individual in question, had to admit, following a conclusion by its own expert, that it could not trust the reliability of  the diplomatic assurances from Egypt that he would not be tortured or ill-treated by Egyptian officials. As described in the decision:

“(iii) Assurances received from the Arab Republic of Egypt: [31] The delegate⁴¹ noted that the Canadian government had received assurances from Egypt that Mr. Mahjoub would be accorded his constitutional rights if returned to Egypt. These assurances took the form of diplomatic notes received by the Canadian government on three separate occasions. In them, Egyptian officials confirmed that Mr. Mahjoub, if returned to Egypt, would be treated in full conformity with constitutional and human rights laws.

[32] Mr. Mahjoub had argued that these assurances would not be respected, and submitted general reports concerning human rights abuses in Egypt, as well as reports from Amnesty International, Human Rights Watch, and an expert in Islamic law. The reports documented the experience of other Egyptians accused of similar terrorist activities who were sent back to Egypt from other countries and who, notwithstanding assurances, were subjected to alleged human rights abuses, ill-treatment and incommunicado detention.

[33] The delegate reviewed the reports and concluded that they presented a credible basis for calling into question the extent to which the Egyptian government would honour its assurances”.⁴²

The above illustrative cases shed light on a number of additional problems associated with diplomatic assurances in transfers to risk of torture and other ill-treatment.

The first is that such assurances are based on trust that the receiving government will uphold its word when there is no basis for such trust. It defies common sense to presume that a government that routinely flouts its binding obligations in international law can be trusted to respect a non-binding promise in an isolated case.

Second, the governments of both the sending state and the receiving state have fundamental disincentives to acknowledge that torture or other ill-treatment have occurred, since doing so would amount to an admission that they have violated a core principle of international human rights law. As a result, both governments share an interest in creating an impression that the assurances are meaningful rather than verifying that they actually are.

And third, 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 enforce them or to hold the sending or receiving government accountable.  Diplomatic assurances have no legal effect and the person they aim to protect has no effective recourse if the assurances are breached.