Human Rights Watch and Liberty are deeply concerned about the British government’s stated intention to seek diplomatic assurances against torture in order to deport terrorism suspects to their home countries or to third countries where they would be at risk of torture and other ill-treatment. Human Rights Watch and Liberty consider returns on the basis of such assurances as incompatible with the international prohibition on the return of persons to countries where they face a risk of torture (nonrefoulement). We urge you to reconsider this fatally flawed initiative and immediately to halt any negotiations with countries of return regarding securing such assurances.

Dear Prime Minister,

Human Rights Watch and Liberty are deeply concerned about the British government’s stated intention to seek diplomatic assurances against torture in order to deport terrorism suspects to their home countries or to third countries where they would be at risk of torture and other ill-treatment. Human Rights Watch and Liberty consider returns on the basis of such assurances as incompatible with the international prohibition on the return of persons to countries where they face a risk of torture (nonrefoulement). We urge you to reconsider this fatally flawed initiative and immediately to halt any negotiations with countries of return regarding securing such assurances.

Torture is prohibited absolutely under article 3 of the European Convention on Human Rights (ECHR), incorporated into U.K. law by the Human Rights Act 1998. The ban includes cruel, inhuman and degrading treatment or punishment. There are no exceptions allowed, even during times of war or public emergency.

The torture ban incorporates a prohibition on the transfer of individuals to countries where they face a risk of torture and other ill-treatment. We were encouraged to see the commitment of your government to that principle in response to a February 25, 2005, query from the House of Commons Foreign Affairs Committee about the British Government’s policy on “extraordinary renditions.” In response, the Foreign and Commonwealth Office (FCO) stated that U.K. government policy “is not to deport or extradite any person to another state where there are substantial grounds to believe that the person will be subject to torture.”1

Human Rights Watch and Liberty are concerned, however, that your government considers that deportation with assurances may provide a mechanism to return people at risk of torture. Our research is unequivocal: in case after case, diplomatic assurances have been shown to be an ineffective safeguard. Post-return monitoring has also proven ineffective both as a disincentive to torture and abuse, and as a mechanism of accountability.

As their name implies, diplomatic assurances are subject to the limits of diplomacy They entail trusting a state where torture and ill-treatment are serious human rights problems to honour unenforceable promises regarding a particular individual. Unlike the case of assurances against the death penalty, a practice that may be open and legal in a given country, torture is at once universally condemned, nearly always clandestine, and typically denied by states that practice it. There is no incentive for either the sending or receiving state to acknowledge if torture or ill-treatment ensues, as both would be in breach of fundamental precepts of international law. It confounds reason to claim that governments that regularly breach their binding legal obligation against torture and deny the practice will in a specific case keep their word because of a nonbinding assurance. These arguments are fully developed in the Human Rights Watch report, Still at Risk: Diplomatic Assurances no Safeguard against Torture (April 2005).

Beyond the risk to individuals returned, there is also a growing consensus that the state practice of seeking such assurances undermines the absolute prohibition in international law against torture and ill-treatment, including the nonrefoulement obligation. Authoritative human rights experts, including the Council of Europe Commissioner for Human Rights Alvaro Gil-Robles, U.N. Special Rapporteur on Torture Manfred Nowak, and U.N. Independent Expert on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism Robert K. Goldman, have expressed deep reservations about the use of diplomatic assurances, and the negative effect of their use on the global ban on torture.

As you know, previous attempts by the U.K. government to return people at risk of torture on the basis diplomatic assurances have been blocked by the courts. In the Chahal case, the European Court of Human Rights ruled that the return with assurances to India of a Sikh activist suspected of involvement in terrorism, in circumstances where torture in India was a “recalcitrant and enduring problem,” would violate the U.K.’s obligations under article 3 of the ECHR. 2In 2003, a U.K. court blocked the extradition of Akhmed Zakayev to Russia, despite assurances from the Russian government that Zakayev would not be ill-treated in detention on return. Human Rights Watch is also aware that serious concerns about the effectiveness of assurances were expressed within the Foreign Office and Home Office during efforts by your government to return Hani Youssef and three other Egyptian nationals to Egypt in 1999.3

The Home Secretary announced to Parliament on January 26, 2005, that deportation with assurances would form part of a twin-track strategy to replace indefinite detention of foreign terrorism suspects. The majority of the individuals previously certified under the Anti-Terrorism Crime and Security Act 2001 (ATCSA) are Algerian, while others are from Egypt, Tunisia, and Jordan. One individual is a stateless Palestinian, while the nationality of another is unknown. To our knowledge, your government has already begun negotiations on “framework agreements” with Algeria, Morocco, and Tunisia. It is our understanding that these negotiations are not limited to those formerly certified under the ATCSA.

The U.K. government has acknowledged that it has so far been unable to deport those previously subject to indefinite detention because there is a real risk that they would be tortured upon their return. But the problem is far broader. The countries from which the men originate all routinely violate their international human rights obligations. Torture in Egypt is systematic, a fact acknowledged by the FCO in its 2004 annual human rights report. In Algeria, Morocco, Jordan, and Tunisia, persons suspected of terrorist activity or labelled as such are specifically targeted for abusive treatment, including torture. Research by Human Rights Watch and Amnesty International, and detailed assessments of the United States Department of State, all demonstrate the very real risks of sending persons labelled as terrorism suspects back to these countries.

Algeria
Political violence in Algeria has claimed an estimated 100,000 to 200,000 lives since 1992. In the name of fighting a violent Islamist insurgency, the state has responded with a range of repressive practices, including mass arbitrary detentions without charge, summary executions, torture of detainees under interrogation, and “disappearances.” Human Rights Watch’s research has found that many detainees are held longer than the already lengthy twelve-day incommunicado period permitted by law, when the risk of torture is particularly high. Although political violence has ebbed over the past five years, the FCO notes in its 2004 annual human rights report that “the overall level of human rights abuses…remains high…[and] there are numerous documented allegations of human rights abuses by the security forces and state-armed militias.” 4Amnesty International reported in its 2004 annual report that “[p]eople suspected of crimes categorized as ‘acts of terrorism or subversion’ were systematically tortured.” 5The criminal code in Algeria was amended in October 2004 to criminalize acts of torture, but the amendment fell short of international standards. The U.N. Special Rapporteur on Torture has been waiting since 1997 for the required government invitation to conduct an in-country visit.

An April 2004 Home Office Algeria Country Report, produced by the Country Information and Policy Unit and used in assessing asylum claims, provides a gruesome list of reported torture methods employed in Algeria: “beatings with fists, batons, belts, iron bars, plastic pipes or rifle butts; whipping; cutting with sharp objects; hitting the soles of the feet; soldering irons or cigarette butts applied to bare skin; burning cigarette ash thrown into the eyes; electrical shocks to the body, often to sensitive organs such as the genitals, to increase the pain the victim’s body may be soaked first in water; attempted strangulation, almost to the point of suffocation; sexual assault or the threat of rape; forced to look on while others are being tortured; hanging by the neck until loss of consciousness; placing lighted newspapers on the body; the ‘chiffon’, in which the victim is tied down and a rag is forced into the mouth and dirty water, containing detergent and other impurities, such as urine or household chemicals, poured through it which the victim is forced to swallow to induce choking.” 6

Egypt
Egypt has been under continuous emergency rule for the past twenty-four years, giving the state powers for arbitrary arrest and indefinite detention without trial, and creating an atmosphere of impunity in which torture and ill-treatment flourish. In a February 2004 briefing paper, Egypt’s Torture Epidemic, Human Rights Watch detailed the widespread and persistent use of torture not only against Islamist militants and political dissidents, but also large numbers of ordinary citizens. A May 2005 Human Rights Watch report Black Hole: The Fate of Islamists Rendered to Egypt documents the torture and ill-treatment, “disappearance”, and extended incommunicado detention of Islamist militants returned to Egypt both before and after September 11, 2001.

Allegations of torture are rarely investigated, despite obligations to do so under both Egyptian and international law. The FCO’s 2004 Annual Report on Human Rights, in a remarkable understatement, acknowledges that “combating torture is still a major challenge for Egypt”. 7 The U.S. State Department 2004 Country Report on Human Rights Practices in Egypt, is more straightforward: “[T]here were numerous, credible reports that security forces tortured and mistreated detainees. Human rights groups reported that the State Security Investigations Service (SSIS), police, and other government entities continued to employ torture to extract information, coerce opposition figures to cease their political activities, and to deter others from similar activities.” 8

Human Rights Watch’s February 2005 report Mass Arrests and Torture in Sinai documents the campaign of arbitrary arrests in and around al-`Arish in response to the October 7, 2004, car bomb at the Taba Hilton hotel on the Egyptian-Israeli border. As many as three thousand people may have been detained. Human Rights Watch took testimonies of people who were tortured by the state security service, consistent with documented practices of torture by the SSIS in politically-charged investigations. Detainees were stripped and blind-folded, strung up by their hands for hours, beaten, and administered electrical shocks or threatened with electric shocks. Torture and ill-treatment are known or suspected to be the cause of at least seventeen deaths in detention in 2002 and 2003, and additional cases of death in detention were reported in 2004.

The December 2001 transfer based on diplomatic assurances of Ahmed Agiza and Mohammed al-Zari from Sweden to Egypt illustrates both the grave risks of torture in Egypt and the futility of reliance upon such assurances. Despite commitments from Egypt, including arrangements for post-return monitoring mechanisms, Agiza and al-Zari were held incommunicado for five weeks after their return and have credibly alleged that they were tortured and ill-treated during that time. Monthly visits by Swedish diplomats, none of them held in private, were begun only after that period. Agiza was sentenced to twenty-five years in prison following a trial in a military court—monitored by Human Rights Watch—that did not meet international fair-trial standards (the sentence was subsequently reduced to fifteen years). Al-Zari was released without charge after spending nearly two years in prison. On May 20, 2005, the U.N. Committee Against Torture ruled that Sweden had violated article 3 of the Convention Against Torture by transferring Agiza to Egypt despite a real risk he would be tortured upon return, noting that “[t]he procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.” 9

Morocco
Human Rights Watch has documented the abusive practices of the Moroccan police and security forces in the aftermath of the May 16, 2003, Casablanca bombings, including mass arrests, secret detentions, incommunicado detention, disappearances, lack of procedural guarantees, unfair trials, and torture and ill-treatment. Conducting research for its October 2004 report, Morocco: Human Rights at a Crossroads, Human Rights Watch heard credible allegations of torture in custody, including beatings, electric shocks, shackling, sleep deprivation, verbal intimidation and humiliation, fingers and bottles inserted into the anus, and threats of rape against the detainees and their family members. The 2004 U.S. State Department country report also contains details of torture, mistreatment and denial of rights during the judicial process of detainees in the aftermath of the Casablanca bombings, and notes that “[t]here is no indication that the Government took any further action in response to claims of torture…made by 29 persons accused of terrorism, and reportedly judicial authorities refused to order any medical examinations.” 10Amnesty International reported similar torture methods used at the Témara Detention Centre, where many terrorism suspects are held, and a purported destination for individuals sent to Morocco by the United States under its extraordinary rendition policy. 11

In November 2003, the U.N. Committee Against Torture expressed its concern over “…the increase in the number of allegations of torture and cruel, inhuman or degrading treatment or punishment, allegations implicating the National Surveillance Directorate (DST).” 12Morocco is a party to the U.N. Convention Against Torture, but does not recognize the Committee Against Torture’s competence to consider individual complaints or conduct confidential investigations, despite recent signals from the government that it intends to lift reservations under the Convention relating to cooperation with the Committee.

Tunisia
Tunisia has a long history of repression and intolerance for political dissent in the name of fighting terrorism, including constant and credible allegations of torture and ill-treatment used to obtain statements from suspects in custody. Persons suspected of association with Islamist groups are particularly vulnerable to torture and ill-treatment. Amnesty International reported on the arrest in February 2003 of approximately twenty people accused of plotting terrorist attacks.13 Those arrested were held incommunicado in the Ministry of the Interior for over two weeks. Four of these individuals claim they were tortured during this time: suspended from the ceiling and beaten, threatened with electrical shocks, and in one case, threatened that his mother and sisters would be detained and tortured in front of him. The U.S. State Department 2004 country report on Tunisia states: “…security forces reportedly tortured detainees to elicit confessions and political prisoners to discourage resistance. The forms of torture included: electric shock; confinement to tiny, unlit cells; submersion of the head in water; beatings with hands, sticks, and police batons; suspension from cell doors resulting in loss of consciousness; cigarette burns; and food and sleep deprivation. Police allegedly beat naked, manacled prisoners while they were suspended from a rod.” 14The U.N. Committee Against Torture has expressed its concern over the “reported widespread practice of torture and other cruel and degrading treatment perpetrated by security forces and the police” as well as the “pressure and intimidation used by officials to prevent the victims from lodging complaints.”15

The treatment in prison of political prisoners – principally Islamists – is especially, and deliberately, severe. In its July 2004 report, Tunisia: Long-term Solitary Confinement for Political Prisoners, Human Rights Watch documented the extreme conditions of deprivation reserved for members of the Islamist Nahdha movement. Long-term solitary confinement, in some cases for the better part of thirteen years, is a violation of the prohibition on cruel, inhuman, and degrading treatment or punishment, and in some cases may rise to the level of torture.

Jordan
Jordan, along with Egypt and Morocco, is widely cited as one of the most common destinations for individuals subject to the U.S. practice of “extraordinary rendition”— the transfer of individuals for interrogation to countries with a track record of using torture. Indeed, the U.S. State Department acknowledges persistent allegations of torture in Jordan in its latest country report on human rights practices, included reported methods such as “beating, sleep deprivation, extended solitary confinement, and physical suspension.” Maher Arar, the dual Canadian-Syrian national who was deported by the U.S. to Syria via Jordan in September 2002, following assurances on torture from Syria, claims that in addition to being severely tortured throughout his detention in Syria, he was repeatedly beaten by Jordanian authorities before being transferred to his final destination. The 2004 State Department report details the allegations of torture of several high-profile cases involving terrorism suspects, all tried by the State Security Court under conditions that did not meet international fair-trial standards. The five men convicted of killing USAID official Lawrence Foley claimed they had confessed under torture by the General Intelligence Department (GID). Amnesty International’s 2004 annual report confirms that the majority of torture allegations came from individuals being held by the GID in connection with terrorism charges.

Human Rights Watch and Liberty acknowledge the obligation of the British government to protect its citizens from potential terrorist attacks. However, the U.K. also has an equally paramount duty to uphold fundamental human rights, including the absolute prohibition on torture. There is solid evidence that in each of the countries listed above, people are routinely tortured in detention, especially where they are perceived to have links to terrorism. These states are in serious breach of their obligations under international human rights law. Any assurances they offer in relation to torture cannot be relied on. We urge you to halt any negotiations with these governments in relation to returns to torture, and to ensure that the U.K. government does not return any person to a country where he or she faces a risk of torture and other ill-treatment.

Yours sincerely,

Steve Crawshaw
London director
Human Rights Watch

Shami Chakrabarti
Director
Liberty

cc:
Rt. Hon Charles Clarke MP, Home Secretary
Rt. Hon Lord Falconer of Thoroton QC, Lord Chancellor
Rt. Hon Jack Straw MP, Foreign Secretary
Rt. Hon Lord Goldsmith of Allerton QC, Attorney-General
Rt. Hon Hazel Blears MP, Minister of State for Policing, Security and Community Safety, Home Office
Rt. Hon Harriet Harman QC MP, Minister of State for Constitutional Affairs, DCA



[1] Reproduced in House of Commons Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism, April 5, 2005 [online], (retrieved April 10, 2005), p. 41 (para.97).
[2]Chahal v. United Kingdom, 70/1995/576/662, November 15, 1996 [online], (retrieved March 1, 2005)
[3]Human Rights Watch (HRW), Still at Risk, Diplomatic Assurances No Safeguard Against Torture, April 2005 [online], (retrieved 23 June 2005), pp.69 - 71.
[4]Foreign and Commonwealth Office (FCO), Annual Report on Human Rights 2004, September 2004 [online], (retrieved April 28, 2005), p.141.
[5]Amnesty International (AI), Annual Report 2004 [online], (retrieved April 28, 2005).
[6]Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Algeria Country Report, April 2004, para. 6.24.
[7]FCO, Annual Report 2004, p. 186.
[8]United States Department of State (DOS), Bureau of Democracy, Human Rights and Labor, 2004 Country Reports on Human Rights Practices: Egypt, February 28, 2005 [online], (retrieved April 28, 2005).
[9]U.N. Committee Against Torture, Decision, Communication No. 233/2003, CAT/C/34/D/233/2003, May 20, 2005.
[10]DOS, 2004 Country Report: Morocco, February 28, 2005 [online], (retrieved April 28, 2005)
[11]AI, “Torture in the “anti-terrorism campaign” – the case of the Témara Detention Centre,” June 24, 2004.
[12]U.N. Committee Against Torture, Conclusions and recommendations of the Committee against Torture: Morocco, CAT/C/CR/31/2. (Concluding Observations/Comments), February 5, 2004 [online], (retrieved April 28, 2005)
[13]AI, Annual report 2004 [online] (retrieved April 28, 2005)
[14]DOS, 2004 Country Report: Tunisia, February 28, 2005 [online], (retrieved April 28, 2005)
[15]U.N. Committee Against Torture, Concluding Observations of the Committee against Torture: Tunisia, 19/11/98. A/54/44, paras. 88-105 (Concluding Observations/Comments) November 1998 [online], (retrieved April 28, 2005).
[16]DOS, 2004 Country Report: Jordan, February 28, 2005 [online], (retrieved April 28, 2005).