<<previous  |  index  |  next>>

V.       The Prohibition on Exposure to a Real Risk of Torture and Ill-Treatment

20.       International law is clear: torture and ill-treatment are prohibited absolutely, in all situations and at all times, as is the return by extradition, deportation or other transfer of any person under any circumstances to a place where she or he is at real risk of such abuse (the nonrefoulement obligation).³¹ 

21.       The nonrefoulement obligation clearly applies in the extradition context (Soering v. UK). Some governments have argued that states offering diplomatic assurances against torture and ill-treatment to facilitate extraditions have a greater incentive to abide by the guarantees in extradition cases to ensure future cooperation in judicial and legal matters.³²  It is precisely because the extraditing government would desire continuing cooperation—particularly in respect to its future requests for extradition to its territory—that it has little, if any, incentive, however, to acknowledge a possible breach of diplomatic assurances, initiate an independent and impartial investigation, and hold those responsible for acts of torture accountable. The distinction between the use of diplomatic assurances in deportation or expulsion cases and their use in extradition cases is artificial, and ignores an extensive body of research that strongly indicates that diplomatic assurances are an ineffective safeguard against torture and ill-treatment in all transfer contexts where a risk of such abuse exists. 

22.       The judiciary in Canada (Pacificador v. Canada), Germany (In re Metin Kaplan), Netherlands (In re Nuriye Kesbir), and United Kingdom (Russia v. Zakaev) have stayed or halted formal extraditions because diplomatic assurances obtained by the executive were determined to be unreliable and insufficient to mitigate the acknowledged risk of torture and ill-treatment. ³³ These courts have concluded that there is little added incentive for a government to abide by its assurances when the proposed transfer takes place in the extradition context. These cases underscore that formal extradition offers no additional protection for a person subject to return, particularly for transfers to countries where torture and ill-treatment are endemic or where specific groups are routinely targeted for such abuse. 

23.       An extradited person would almost certainly go directly into the requesting government’s criminal justice or internal security system, the very locales where clandestine acts of torture and ill-treatment are most likely to occur.  As some of the testimonies above illustrate (see section above on treatment of returnees in Uzbekistan), the dynamics of torture, the absence of basic procedural safeguards, the lack of independent access to detainees, and the absence of accountability for acts of torture in states where torture is practiced are all factors that militate against compliance with diplomatic assurances by the state requesting extradition.

24.       The growing weight of evidence and of international expert opinion indicates that diplomatic assurances cannot protect people at risk of torture from such treatment on return, whether by extradition or otherwise. Many of the governments offering diplomatic assurances have long histories and continuing records of employing torture, a fact that most sending governments acknowledge. Governments with poor records on torture routinely deny that torture is used and fail to initiate investigations when allegations of torture are made. There is no reason to suppose that these governments, which persistently breach the international ban on torture, would keep their promises not to torture a single individual. In a June 2006 article, Council of Europe Human Rights Commissioner Thomas Hammarberg stated:

The governments concerned have already violated binding international norms and it is plain wrong to subject anyone to the risk of torture on the basis of an even less solemn undertaking to make an exception in an individual case.³⁴

25.       Torture is criminal activity of the most serious kind. It is practiced in secret using techniques that often defy detection (for example, mock drowning, sexual assault, internal use of electricity). The Court is aware that in many countries, including Uzbekistan, returned persons are often held incommunicado, without access to lawyers, family members, and the media (see paragraph 108 of the Mamatkulov judgment).  Even when lawyers are given permission to see their clients, interviews are often conducted in the presence of prison officials and security services personnel in breach of Articles 6 §3(c) and 8. Under these circumstances, detainees subjected to torture are often afraid to complain to anyone about the abuse for fear of reprisals against them or their family members.

26.       Maher Arar, a Canadian-Syrian citizen sent back to Syria from the United States based on diplomatic assurances, personally experienced this dilemma.  In September 2002 US authorities apprehended Arar at JFK airport, in transit from Tunisia through New York to Canada, where he had lived for many years.After holding him for nearly two weeks, US immigration authorities flew Arar to Jordan, where he was driven across the border and handed over to the Syrians. The US government claimed that prior to Arar’s transfer, it obtained diplomatic assurances from the Syrian government that Arar would not be tortured upon return.³⁵ After his release in late October 2002, Arar told a gruesome tale of abuse and torment that included severe beatings, incarceration in a tomb-like cell infested with rats, and psychological abuse. During a visit by Canadian consular officials in October 2002, Arar said that he was taken from his cell and his beard was shaved:

The interrogation and beating ended three days before I had my first consular visit. . .I was told not to tell anything about the beating, then I was taken into a room for a ten minute meeting with the consul. The colonel was there, and three other Syrian officials including an interpreter. I cried a lot at that meeting. I could not say anything about the torture. I thought if I did, I would not get any more visits, or I might be beaten again…The consular visits were my lifeline, but I also found them very frustrating. There were seven consular visits, and one visit from members of Parliament. After the visits I would bang my head and my fist on the wall in frustration. I needed the visits, but I could not say anything there.³⁶

27.       The final report of a special Canadian commission of inquiry into Canada’s role in Arar’s transfer confirmed that Arar “lived through a nightmare” of torture while imprisoned in Syria, with profound, devastating, and continuing effects on his physical, psychological, social, and economic well-being. On the issue of diplomatic assurances, the commission acknowledged that Arar’s case is a clear example of the problems inherent in relying on diplomatic assurances against torture.³⁷

28.       Even if a detainee does complain of abuse, there is no accountability for torture in many countries where torture is routinely used, including Uzbekistan, in breach of Article 12 of the UN Convention Against Torture. Occasional post-return monitoring by diplomats from the sending country is thus unlikely to provide protection against torture and ill-treatment (see also paragraphs 35-38 below concerning Agiza).

29.       A number of high-level international experts have opposed reliance on diplomatic assurances against torture and ill-treatment in the extradition context.  In a February 2006 speech, the United Nations High Commissioner on Human Rights stated categorically that the absolute prohibition on return to risk of torture and ill-treatment included transfer by extradition and that assurances should not be relied upon in any transfer context.³⁸ In a March 2006 letter from the High Commissioner opposing the establishment of guidelines for the use of assurances against torture in the Council of Europe region, the High Commissioner stated, “I strongly share the view that diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment.”³⁹

30.       In its final report of January 30, 2007, the European Parliament’s Temporary Committee on illegal CIA activity in Europe (TDIP) called on European Union member states to rule out the acceptance of mere diplomatic assurances from third countries “as a basis for any legal extradition provision, where there are substantial grounds for believing that individuals would be in danger of being subjected to torture or ill-treatment.”⁴⁰

31.       The UN Special Rapporteur on Torture has stated his firm opposition to reliance upon diplomatic assurances against torture and ill-treatment in all transfer contexts, expressing concern that this practice reflects a tendency on the part of states to circumvent the international obligation not to deport a person if there is a serious risk that he or she might be subjected to torture.⁴¹  Specifically referring to the situation of torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the special rapporteur has stated:

[T]he practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002.  Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials…Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition—their obligations under international law—by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States (emphasis added).⁴²

32.       Moreover, the European Committee for the Prevention of Torture’s 15^th General Report expressed concern about reliance on diplomatic assurances in light of the absolute prohibition against torture: “Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern.”⁴³