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VI.     International Jurisprudence: UN Treaty Bodies and Individual Petitions

33.       United Nations treaty-bodies have considered three individual petitions involving transfers to risk of torture and diplomatic assurances. In each case, the Committee has determined that the diplomatic assurances against torture did not provide an effective safeguard against abuse and the transfer thus violated the nonrefoulement obligation enshrined in human rights law under Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and/or Article 7 of the International Covenant on Civil and Political Rights.  

34.       In the June 2007 UN Committee Against Torture case of Pelit v. Azerbaijan, the Committee determined that Azerbaijan’s October 2006 extradition to Turkey of Elif Pelit violated Article 3 of the Convention Against Torture, despite diplomatic assurances of humane treatment from the Turkish authorities prior to her transfer.⁴⁴  Pelit, alleged by the Turkish authorities to be associated with the PKK (Kurdish Worker’s Party), had been granted refugee status by Germany in 1998 based on her claims of having been tortured in detention in Turkey between 1993 and 1996. The Committee found Azerbaijan in violation of Article 3, despite the State party’s claim that it had monitored Pelit’s treatment post-return and claim that in a private conversation with an Azeri embassy representative after her return, Pelit “confirmed that she had not been subjected to torture or ill-treated by the penitentiary authorities.”⁴⁵ The Committee Against Torture in Pelit questioned why the Azeri authorities failed to respect Pelit’s refugee status, particularly “in circumstances where the general situation of persons such as the complainant and the complainant's own past experiences raised real issues under Article 3.”⁴⁶

35.       In another proceeding, the Committee Against Torture and UN Human Rights Committee both considered individual petitions from asylum seekers Mohammed al-Zari and Ahmed Agiza, who were transferred from Stockholm to Cairo in December 2001 in the custody of CIA agents aboard a United States government-leased airplane.⁴⁷ The government of Sweden expelled al-Zari and Agiza, both suspected of terrorist activities, following written assurances from the Egyptian authorities that the men would not be subject to the death penalty, tortured or ill-treated, and that they would receive fair trials. Swedish and Egyptian authorities also agreed on a post-return monitoring mechanism involving visits to the men in prison.

36.       The Human Rights Committee in November 2006 concluded that Sweden’s involvement in the transfer of Mohammed al-Zari to Egypt breached the absolute ban on torture, despite assurances of humane treatment provided by the Egyptian authorities prior to the men’s transfer. The Committee stated that Sweden “has not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill-treatment to a level consistent” with the ban on torture and other cruel, inhuman or degrading treatment or punishment.⁴⁸

37.       That decision followed a May 2005 determination by the Committee Against Torture in Ahmed Agiza’s case. The Committee held that Sweden violated the ban on torture with respect to Ahmed Agiza’s transfer, stating that the “procurement of diplomatic assurances [from Egypt], which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.”⁴⁹

38.       In the al-Zari and Agiza cases, it is important to note that Swedish diplomats conducted dozens of post-return monitoring visits. The men complained of torture and other abuse during the first such visit, but the government of Sweden redacted those complaints from the official monitoring report and failed to share that information with the Committee Against Torture. An unedited version of the first monitoring report was obtained by a Swedish television station and only made public two years after the men were returned to Egypt. The Swedish government thus went to great lengths to keep the men’s abuse secret—and the Egyptian government denied that the men were ill-treated and refused to conduct an investigation when their allegations of torture came to light.  These dynamics amply demonstrate the futility of relying on diplomatic assurances against torture for transfers to countries where such abuse is not only routinely practiced, but routinely denied.