Background Briefing

Uphold the Prohibition on Torture and Ill-Treatment

Despite its longstanding support for international norms and efforts to ban torture, over the past five years the UK has pursued policies that effectively undermine the absolute prohibition of torture. This dangerous ambivalence damages the UK’s standing at home and abroad. In order to recover its stature as an international leader in the struggle to eradicate torture, the British government must abandon its policy of seeking diplomatic assurances, desist in its efforts to rewrite European standards on returns where there is a risk of torture and ill-treatment, and multiply its efforts to promote broad ratification and implementation of relevant international instruments.

Abandon the policy of deportation with assurances

The UK was among the first countries to seek diplomatic assurances against torture as a means of deporting foreign terrorism suspects to countries where they faced the risk of such treatment. The Law Lords ruled in December 2004 that the indefinite detention of foreign terrorism suspects violated the UK’s international human rights obligations.9 From that point on, the use of deportation with assurances became a central plank of Britain’s counterterrorism strategy.

The British government has agreed “memorandums of understanding” with Jordan, Libya, and Lebanon to permit the deportation of terrorism suspects based on assurances of humane treatment upon return, and sought to negotiate similar agreements with Algeria and other North African and Middle Eastern governments. All of these countries have a known pattern of torture, particularly for those suspected of involvement in terrorism or radical Islamism.10 The memos include arrangements for post-return monitoring, which the UK government wrongly claims provides an added measure of protection.

The key deficiency with monitoring an isolated detainee is the lack of confidentiality and consequent risk of reprisals. If monitors have universal access to all detainees in a facility, and are able to speak with a large number of detainees privately, any given detainee can report an abuse to them without fear that he or she will be identified by the authorities, and subject to reprisals. The International Committee of the Red Cross makes such access a condition of its monitoring for precisely that reason. Such confidentiality cannot be provided when only one detainee or small group is being monitored. If allegations of ill-treatment were communicated, the prison or detention facility authorities and staff would know directly where the information came from. Such easy identification is a strong disincentive for the detainee to report any abuse. A detainee would justifiably fear reprisals targeting him or his family members by prison staff or other government actors.   

Experience shows that diplomatic assurances from governments that routinely practice torture are entirely worthless. The most notorious example involves Sweden, which sent two Egyptian terrorism suspects to Cairo in December 2001 in the hands of the CIA, based on promises of humane treatment from the Egyptian government. Both were tortured on their return, despite visits from Swedish diplomats. Two UN bodies – the Committee Against Torture and the Human Rights Committee – have since ruled that Sweden’s actions in the case violated the international ban on returning people to a place where they are at risk of torture.11

In October 2002, the U.S. government transferred Maher Arar, a dual Canadian-Syrian citizen, from New York via Jordan to Syria based on diplomatic assurances of humane treatment. An independent fact-finder appointed by an official Canadian Commission of Inquiry into Arar’s treatment concluded in October 2005 that Arar had been tortured in Syrian custody, despite Syrian assurances to the contrary and several visits from Canadian consular officials. In September 2006, the Commission of Inquiry itself concluded that Arar’s torture in Syria is “a concrete example” of the problems inherent in relying on diplomatic assurances.12 

The U.S. government transferred a Russian man, Rasul Kudayev, from Guantanamo Bay to Russia in 2004, based on assurances from the Russian authorities that he would be treated humanely in accordance with Russia’s domestic law and international obligations.13  In October 2005, Kudayev was unlawfully arrested and detained, severely beaten and denied necessary medical care, and had his lawyer arbitrarily removed from his case when she complained about his ill-treatment. 

The British Parliamentary Joint Committee for Human Rights, the UN Human Rights Commissioner, the UN Special Rapporteur on Torture, the EU Network of Independent Experts, and the Council of Europe Commissioner for Human Rights have all concluded that diplomatic assurances are no safeguard against torture.14

The Special Immigration Appeals Commission (SIAC) upheld this view when it ruled in April 2007 that two terrorism suspects, known only as DD and AS, would be at risk of torture and a “complete” denial of a fair trial if returned to Libya. The court determined that Libyan assurances contained in a 2005 MoU with the UK were not reliable. This positive affirmation of the prohibition on return to torture and ill-treatment stands in contrast to the February 2007 decision by the same court allowing the UK to deport Omar Othman (also known as Abu Qatada) to Jordan under the terms of an MoU brokered in 2005.  At the time of writing, both decisions are the subject of pending appeals to the Court of Appeal.

In May 2006, Human Rights Watch submitted an expert statement to the SIAC in the Othman case arguing that there is no basis upon which to trust unenforceable diplomatic assurances from the Jordanian authorities. In addition, Human Rights Watch provided a witness statement in the Libyan case about reliance on Qadhafi Foundation for Development as the monitoring organization under the UK-Libya MoU.

There is already ample evidence that assurances do not protect detainees against abuse and that such returns violate international law. Apart from the loss of moral legitimacy, the use of assurances signals a willingness to collaborate with the governments whose abusive methods have fanned support for extremism and terrorism. This may help to act as a recruiting sergeant for the terrorists’ cause and ultimately make the UK less safe. The UK government should abandon its efforts to deport such suspects and instead concentrate its efforts on prosecuting those who threaten the UK, including British nationals who cannot be deported.

Resettlement to safe third-countries can also be explored. But it is important to note that extended immigration detention while suitable countries are identified would violate the ECHR unless authorities were able to show due diligence in deportation proceedings.15 Where possible, such arrangements should be based on the informed consent of the individuals concerned.

Abandon efforts to weaken European standards on torture and ill-treatment

The British government’s intervention in the case of Ramzy v. The Netherlands is a manifest effort to weaken the prohibition of torture and ill-treatment contained in article 3 of the ECHR. Mohammed Ramzy, an Algerian suspected of involvement in terrorism, is challenging deportation from The Netherlands before the European Court of Human Rights on the grounds he would be at risk of torture if returned to Algeria.16

The UK government has taken the rare step of intervening in the case, an otherwise relatively straightforward dispute about risk upon return, in an effort to overturn the landmark 1996 judgment in the case of Chahal v. UK, in which the European Court of Human Rights reaffirmed the absolute prohibition on sending people back to the risk of torture and ill-treatment. The Court ruled in that case that the return to India of Karamjit Singh Chahal, a Sikh activist suspected of involvement with terrorism, would violate the UK’s obligations under the ECHR.

The Chahal judgment makes clear that “[t]he prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases.… In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”17

The UK government now wants to convince the justices of the European Court to allow a national security exception to article 3 ECHR that would permit the risk of ill-treatment to be balanced against the alleged threat posed by the person subject to removal. Britain persuaded four other governments to join its intervention in the Ramzy case.18 Although the ban on returns to risk of torture would remain intact under international law, in particular under the UN Convention against Torture, a European Court of Human Rights ruling in favor of the UK would have a corrosive effect, and put persons subject to removal at risk of ill-treatment. A group of human rights organizations, including Human Rights Watch, have also intervened in the Ramzy case to highlight the fundamental importance of upholding the ban on returns to ill-treatment to the torture prohibition as a whole.19

The UK government should withdraw its intervention in the Ramzy case, and state publicly its unequivocal commitment to the absolute prohibition on return to risk of torture and ill-treatment under article 3 of the ECHR.

Reinforce the international ban on torture

Given the recent concerns about the potential complicity of European States in illegal US renditions and secret detentions, it is critically important that the UK takes positive measures to create safeguards against such illegal practices whether in the UK or elsewhere.20

Implementing the recent proposal by the All Party Parliamentary Group (APPG) on Extraordinary Renditions to introduce safeguards for individuals subject to rendition through the UK would be an important start. Human Rights Watch wrote to the Minister for Transport on May 15, 2007 expressing our support for the proposal.

The APPG’s proposed measure involves the creation of a permission system in UK law requiring states seeking to transfer a detained person through UK territory or airspace to request written permission from the UK government. The transferring state would have to provide information on: a) the destination state; b) the purpose of the transfer and applicable legal regime; c) the legal safeguards in the destination state; d) and the procedures to which the individual being transferred had access to challenge his or her transfer prior to removal on the basis of a fear of torture, ill-treatment, enforced disappearance or any other reason. Under the proposed measure, the government would have to deny permission to transit unless it is satisfied that the transit would not violate its obligations under international human rights law. This system would increase accountability of both the UK and the requesting state, as well as contribute to the protection of the rights of those being transferred.  To maximize transparency, its operation should be subject to scrutiny by Parliament.

The UK should support efforts within the Council of Europe and/or European Union to adopt common measures to safeguard the rights of suspects being transported through member states.

The UK government should as a matter of priority sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances (2006).21  By requiring states to prohibit secret detention and unofficial places of detention, and ensure that every detained person has access to legal remedies, the Convention will play a significant role in reducing the risk of torture in detention, and ensuring that counter-terrorism measures with respect to state custody of terrorism suspects are consistent with international human rights law.

The UK government should also continue its positive efforts to persuade governments to sign and ratify the UN Optional Protocol to the Convention against Torture (2003), which strengthens protection against torture by establishing in each state party a system of regular visits by independent international and national bodies to places where people are deprived of their liberty.

9 A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) , [2005] UKHL 71, (accessed June 8, 2007).

10 See, for example, Human Rights Watch and Liberty, “UK: Empty promises can’t protect people from torture, a joint letter to Tony Blair,” June 23, 2005,

11 UN Committee Against Torture, Decision: Agiza v. Sweden, CAT/C/34/D/233/2003, May 20, 2005, (accessed January 1, 2007); UN Human Rights Committee, Decision Decision: Alzery v. Sweden, CCPR/C/88/D/1416/2005, November 10, 2006, (accessed January 1, 2007).

12 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, “Report of the Events Relating to Maher Arar: Analysis and Recommendations,, p. 176 (accessed May 22, 2007).

13 See Human Rights Watch, The Stamp of Guantanamo: The Story of Seven Men Betrayed by Russia’s Diplomatic Assurances to the United States, vol. 19, no. 2 (D), March 2007,

14 For detailed discussions of diplomatic assurances, see Human Rights Watch, Empty Promises : Diplomatic  Assurances No Safeguard Against Torture, vol. 16, no. 4(D), April 2004; Still at Risk: Diplomatic Assurances No Safeguard Against Torture, vol. 17, no. 4(D), April 2005; and  Diplomatic Assurances: Questions and Answers, November 2006. These and other documents related to Human Rights Watch’s work on diplomatic assurances are available at

15 Immigration detention is only lawful under the ECHR “where action is being taken with a view to deportation or extradition” (article 5 (1)(f)). The jurisprudence of the European Court of Human Rights requires that the detaining state demonstrate due diligence in its efforts to deport or extradite the detainee (See, Chahal v. The United Kingdom, Application No. 2214/93, November 15, 1996 (1997) 23 EHRR 299, para. 113).

16 The case has since been joined to another case involving a Libyan facing removal from the Netherlands on national security grounds.    

17 Chahal v. The United Kingdom, Application No 22414/93, November 15, 1996, (1997) 23 EHRR 399, para. 80.

18 Italy, Lithuania, Portugal, and Slovakia. Italy subsequently withdrew from the intervention.

19 Human Rights Watch has intervened in the case jointly with Interights, Amnesty International, the Association for the Prevention of Torture, the International Commission of Jurists, Open Society Justice Initiative, and REDRESS.

20  The issue was the subject of extensive investigations by the European Parliament Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners (TDIP) and the Council of Europe Committee on Legal Affairs and Human Rights.

21 As of April 19, 2007, the Convention had 59 signatories. It will enter into force when it is ratified by 20 states parties. Office of the High Commissioner for Human Rights, Ratifications and Reservations, International Convention for the Protection of All Persons from Enforced Disappearance, (accessed June 8, 2007).