Human Rights Watch is writing with regard to a “Memorandum of Understanding” (MOU) submitted to Jordan by the United Kingdom that would establish broad diplomatic assurances by Jordan of humane treatment of persons the United Kingdom wishes to return involuntarily to Jordan.
Human Rights Watch is writing with regard to a “Memorandum of Understanding” (MOU) submitted to Jordan by the United Kingdom that would establish broad diplomatic assurances by Jordan of humane treatment of persons the United Kingdom wishes to return involuntarily to Jordan. Human Rights Watch strongly urges Jordan not to be a party to this or any similar MOU.
Through the MOU, the U.K. government seeks to circumvent its obligations under the U.N. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention on Human Rights. The MOU creates a loophole in the U.K.’s nonrefoulement obligation, which prohibits any country from sending a person to a place where he or she would be at risk of torture. Any individual subject to return with a fear of torture must have an individual assessment of his or her risk of torture. A pattern of abuse in the receiving country constitutes a key element for establishing the risk of torture in a given country. If a risk of torture or ill-treatment is acknowledged, the nonrefoulement obligation requires that the person cannot be returned. Diplomatic assurances of humane treatment from a receiving state do not mitigate that risk. Seeking assurances in fact can be taken as an indication that such a risk exists. International legal experts have stated that diplomatic assurances are not an effective safeguard against torture.
There are several reasons why diplomatic assurances fail in this regard. First, such assurances are not legally enforceable; neither a sending country nor a receiving country faces legal consequences for breaching an assurance that an individual will not be tortured. As their name implies, diplomatic assurances are subject to the limits of diplomacy. They entail obtaining a statement or declaration from a state where torture and ill-treatment take place to honor 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 have difficulty in upholding their binding legal obligation against torture will in a specific case be able to keep their word because of a nonbinding assurance.
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.
Finally, the request of the U.K. government for diplomatic assurances against torture and ill-treatment constitutes a tacit recognition by both the United Kingdom and Jordan that torture and ill-treatment are a problem in Jordan, and seeks to require Jordan to assure the United Kingdom that certain persons delivered by the United Kingdom will not be tortured or ill-treated. This implies that Jordan will treat these detainees in a manner different from its treatment of other detainees.
The phenomenon of one state requesting that another make an exception to its record of employing torture with respect to just one individual or group of individuals sent by a particular country has deeply disturbing implications. Asking for the creation of such exceptions comes dangerously close to accepting the pattern of abuse in that country, by both the sending and receiving country.
At a time when other states are weakening their commitment to the prevention and absolute prohibition of torture, Jordan should uphold a policy of zero tolerance against torture and those who use torture and the threat of torture, not just in cases where other states seek Jordan’s diplomatic assurances against torture and ill-treatment. Jordan has acceded to the U.N. Convention against Torture, which entered into force in 1991 in the Kingdom. Jordan needs to continue to strengthen its own mechanisms for the prevention of torture and ill-treatment within its jurisdiction. Such efforts would ultimately render diplomatic assurances unnecessary, because governments would be able to return persons to Jordan while remaining in full compliance with the Convention against Torture.
At present, the risk of torture remains real in Jordan. The government-appointed National Center for Human Rights (NCHR) stated in its annual report for 2004 that it had received more than 250 complaints alleging torture or ill-treatment. We also note that Jordan has taken positive steps towards addressing this problem, along with its greater emphasis on the rule of law generally. Police departments throughout Jordan operate complaints units, and recently the Directorate of Public Security announced that it would establish an independent Ombudsman and Human Rights Office. Jordan’s State Security Court is now prohibited from issuing death sentences on the basis of confessions that may have been extracted by torture. In addition, Jordan has distinguished itself in the Middle East by gradually granting the International Committee of the Red Cross access to all detainees and facilities in Jordan at all times. These steps signal that Jordan recognizes the need to implement laws and policies that address torture and ill-treatment concerns on its own territory.
Jordan can do still more to address the problem of torture within its jurisdiction:
In considering Jordan’s initial report regarding its implementation of the Convention against Torture in 1995, the Committee against Torture (CAT) encouraged Jordan to pass legislation that would criminalize acts of torture and adopt other measures for the prevention of torture. The NCHR in 2005 repeated these recommendations, noting that the State Security Court in particular does not provide sufficient safeguards against torture or other ill-treatment. Jordan should take this opportunity to putting legislative, judicial, educational, and monitoring safeguards in place that will help achieve these aims.
- Jordan should prohibit the admission as evidence of any confessions obtained through torture, not just in cases involving death penalty sentences.
Jordan should make prompt and independent medical investigations obligatory where there are allegations of torture.
- Jordan should submit its fourth periodic report to the Committee against Torture which as due in December 2004.
- Jordan should consider ratifying the Optional Protocol to the Convention against Torture, which would provide for independent verification of Jordan’s compliance with the CAT.
- Jordan must ensure that it does not materially or otherwise assist foreign countries who may use that assistance, including Jordanian territory, for interrogating suspects with methods amounting to torture or ill-treatment.
- Jordan has been cited in a number of cases as the destination of persons for interrogation allegedly carried out by or on behalf of United States officials.
- Jordan will be in breach of its own obligations under the Convention against Torture by allowing other countries to use its territory for purposes that violate the Convention.
In 2002, Jordan ratified the Statute of the International Criminal Court, and is the only Arab country to date to become a party to the treaty. Torture is among the crimes over which the ICC has jurisdiction. In becoming a party to the ICC Statute , Jordan has joined the worldwide trend towards greater accountability for the most serious human rights violations. Those responsible for genocide, war crimes or crimes against humanity no longer enjoy impunity in the absence of international jurisdiction.
Less than one month ago, Jordan boldly rejected an attempt to undermine the universal jurisdiction over war crimes and crimes against humanity when the lower house of parliament declined to ratify a bilateral agreement with the U.S. government exempting U.S. military personnel from possible extradition to the ICC.
Jordan should similarly take the lead in the region by taking all feasible measures to prohibit and prevent torture and cruel, inhuman, and degrading treatment in any territory under its jurisdiction. It should also refuse to return persons into the custody of states where they may face torture. And with respect to the proposed MOU, Jordan should resist efforts by other states to rely on diplomatic assurances as a tool for avoiding their own legal obligations of upholding the absolute prohibition against sending persons to countries where they risk torture.
Sarah Leah Whitson
His Excellency Dr. Marwan Muasher, Deputy Prime Minister
His Excellency Abdul Hadi al-Majali, President of the House of Deputies
His Excellency Dr. Mamdouh al-Ubaidi, 1st Deputy President of the House of Deputies
His Excellency Zahir al-Fawwaz, 2nd Deputy President of the House of Deputies
Mr. Bisher al-Khasawneh, International Legal Advisor, Ministry of Foreign Affairs