Individuals suspected of terrorism should never be returned to a country where they risk torture and ill-treatment, Human Rights Watch said in a new report today. Promises of fair treatment by states with well-known records of torture are inherently unreliable, and governments that justify returns through such promises, known as “diplomatic assurances,” are violating the absolute prohibition against torture and eroding a fundamental principle of international law.
The report, “Empty Promises:” Diplomatic Assurances No Safeguard against Torture, documents cases where governments returned or considered returning suspects on the basis of such formal guarantees, and raises concern that in some cases, those returned were, in fact, tortured or ill-treated.
“Returns should never take place unless governments can be absolutely certain that torture will not occur,” said Rachel Denber, acting executive director of Human Rights Watch’s Europe and Central Asia Division. “Governments cannot turn a blind eye when the potential victim happens to be accused of terrorism, then justify returns based on unreliable promises from countries with a track record of torture.”
The governments of Austria, Canada, Georgia, Germany, Sweden, Turkey, the United Kingdom and the United States have all sought to return terrorist or national security suspects to countries where torture is a widespread or systematic problem, including Egypt, the Philippines, Russia, Sri Lanka, Syria and Uzbekistan. Some individuals returned have been tortured or seriously ill-treated upon return, and Human Rights Watch said there is real concern for the safety of many more.
Courts in Europe and Canada have in some cases blocked the return of suspects in spite of diplomatic assurances of safety, ruling that the assurances provided insufficient guarantees against torture; in others, decisions on return are pending.
European governments have for many years relied on diplomatic assurances from the United States that the death penalty will not apply to suspects they extradite. But diplomatic assurances that guarantee protection from torture represent a deeply troubling expansion of this international practice.
“The death penalty, however reprehensible, is legal and usually carried out publicly,” said Denber. “But torture is illegal and practiced in secret. Governments routinely lie about whether they’re torturing people or not, and in some situations they may not even have adequate control to guarantee security.”
Among the cases analyzed in the 39-page report is the Swedish government’s return of two Egyptian asylum seekers in December 2001. The expulsions took place following diplomatic assurances from the Egyptian government that the men would not be subjected to torture or given the death penalty, and that they would receive a fair trial.
Upon return, Egyptian authorities held the men incommunicado for five weeks. When Swedish diplomats eventually began visiting the men, they were never allowed to meet with the men in private—at some visits as many as ten prison officials were present. Relatives and others who have access to the men have credibly alleged they were tortured and ill-treated.
The Egyptian government has also failed to honor its fair trial promise. One of the men was released without charge in October 2003, after being held for nearly two years, while the other remains imprisoned solely on the basis of an in absentia conviction handed down by a military tribunal in 1999. A re-trial has recently been ordered, but again in a military tribunal where fair trial guarantees are not respected.
Another case is the U.S. apprehension of Maher Arar, a dual national of Canada and Syria, whom it returned to Syria via Jordan, despite his expressed fear he would be tortured in Syria and his repeated requests to be returned home to Canada. Prior to his transfer, the U.S. government obtained diplomatic assurances from the Syrian government that Arar would not be subjected to torture. Arar was released without charge from Syrian custody ten months later and alleged that he was, in fact, tortured repeatedly, often with cables and electrical cords, during his confinement in a Syrian prison.
“Governments have to find a way to tackle terrorism in a manner that doesn’t undermine fundamental obligations, including the duty not to expose people to a risk of torture,” said Denber. “Given Syria’s record of torture, sending a terrorism suspect there was never going to be safe. Cases like this raise the question of whether some governments return people with the full knowledge that torture will be used to extract information and confessions.”
The prohibition against returning a person to a country where he or she is at risk of torture or ill-treatment is a fundamental norm of international law, expressed in many treaties. The prohibition is absolute and permits no exceptions, no matter what crime a person is suspected of committing.
Empty Promises assesses the approach of the U.N. Special Rapporteur on Torture, Committee against Torture, and Human Rights Committee toward the use of diplomatic assurances. It also details the use of diplomatic assurances in European law and policy, reviewing decisions by the European Court of Human Rights and several national courts in cases involving the use of diplomatic assurances.
The report calls on governments to ensure that diplomatic assurances are never used to circumvent the absolute obligation not to return a person to a country where he or she is at risk of torture or ill-treatment. Human Rights Watch also calls for reliance upon diplomatic assurances to be declared per definition unacceptable in circumstances:
- where torture and ill-treatment in the country of return are systematic or widespread;
- where governments lack control over forces that perpetrate torture, and;
- where the government targets members of an identifiable group with which the person threatened with return is associated.
Human Rights Watch recommends that the U.N. Special Rapporteur on Torture examine and establish clear standards and criteria for the use of diplomatic assurances by governments with the purpose of ensuring that governments adhere to their absolute obligation not to expose persons to a risk of torture.