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DIPLOMATIC ASSURANCES AND THEIR USE IN NORTH AMERICA

United States

Federal Law

The United States is one of the few legal systems that provides in law for the use of diplomatic assurances in the context of its obligations under the Convention against Torture (CAT). According to a federal regulation, 8 C.F.R. § 208.18(c), the Secretary of State may secure assurances from a government that a person subject to return would not be tortured. In consultation with the Attorney General, the Secretary of State will determine whether the assurances are “sufficiently reliable” to allow the return in compliance with CAT. Once assurances are approved, any claims a person has under the CAT will not be given further consideration by U.S. authorities.³²

According to a February 1999 commentary by the U.S. Department of Justice, the nature, reliability, and verification of assurances would require “careful evaluation” before an alien’s removal.³³ The determination to use diplomatic assurances is decided on a case-by-case basis, and may relate to the risk of torture or aspects of the requesting State’s criminal justice system that protect against mistreatment, for example access to counsel.³⁴ The Secretary of State considers “the identity, position, or other information concerning the official relaying the assurances, and political or legal developments in the requesting State that would provide context for the assurances provided.”³⁵ The State Department may also consider the diplomatic relations between the United States and the requesting country.³⁶

When constructing diplomatic assurances, the State Department may require a monitoring or review mechanism to ensure compliance with the assurances. For instance, the State Department can ask human rights groups to monitor the condition of those extradited under a diplomatic arrangement.³⁷ The decision to implement a monitoring or review mechanism is also determined on a case-by-case basis. The factors considered include “the identity of the requesting State, the nationality of the fugitive, the groups or persons that might be available to monitor the fugitive’s condition, the ability of such groups or persons to provide effective monitoring, and similar considerations.”³⁸

The deficits in the U.S. law lie in the discretionary nature of measures to verify the reliability of diplomatic assurances. There are no procedural guarantees for the returnee at all, including any opportunity to challenge the credibility or reliability of diplomatic assurances before an independent judicial body. Nor is there a requirement of a post-return monitoring mechanism or any guarantee that should there be such monitoring, it would be conducted by U.S. diplomatic or other officials following accepted practices of confidentiality.³⁹ There is also no clear requirement that the Secretary of State take into account the existence in the requesting state of a consistent pattern of gross, flagrant, or mass violations of human rights in conformity with the Convention against Torture article 3(2).

The Case of Maher Arar

The circumstances surrounding the case of Maher Arar raise serious concerns about U.S. practice with respect to reliance on diplomatic assurances as a safeguard against CAT violations. In September 2002, the U.S. government apprehended Arar, a dual Canadian-Syrian national, in transit from Tunisia through New York to Canada, where he has lived for many years. After holding him for nearly two weeks, U.S. immigration authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his repeated statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. Prior to his transfer, the U.S. government obtained 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 has alleged that he was in fact tortured repeatedly, often with cables and electrical cords, during his confinement in a Syrian prison.⁴⁰ The U.S. government has not explained why it sent him to Syria rather than to Canada, where he resides; why it believed Syrian assurances to be credible in light of the government’s well-documented record of torture, including designation as a country that practices systematic torture by the U.S. Department of State’s 2003 Country Reports on Human Rights Practices;⁴¹ and why, in this case, it deemed that no post-return monitoring plan was required as a condition of return.⁴²

On January 22, 2004, Maher Arar filed suit in U.S. Federal Court alleging violations of the Torture Victim Protection Act.⁴³ The U.S. Department of Homeland Security Inspector General has initiated a review of the Arar case.⁴⁴ The Canadian government will also hold a full public inquiry.⁴⁵

The Arar case reinforces Human Rights Watch’s concern that diplomatic assurances may be used to return persons suspected of having information about terrorism-related activities to countries where torture is routinely used, specifically to extract such information.⁴⁶ This concern is bolstered by the comments of former U.S. intelligence officials and sources within the U.S. administration who have stated publicly that they believe some transferred suspects are being tortured.⁴⁷

Canada

The Case of Manickavasagam Suresh

The inability of a person subject to involuntary return to challenge diplomatic assurances prior to return was addressed by Canada in a January 2002 decision. In Suresh v. Canada,⁴⁸ the Canadian Supreme Court expressed reservations about the reliability of diplomatic assurances as an adequate safeguard to the prohibition against torture, particularly in cases where a person is threatened with return to a country where torture is systematic. The court held that Manickavasagam Suresh, a Sri Lankan national subject to deportation on national security grounds, made a prima facie case in his first deportation hearing showing a substantial risk of torture if returned to Sri Lanka. Suresh was granted a new deportation hearing after the court concluded that his original hearing did not provide the procedural safeguards necessary to protect his right not to be deported to a place where he was at risk of torture, including the opportunity to challenge the validity of diplomatic assurances.⁴⁹

With respect to the use of diplomatic assurances, the court stated that “Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.”⁵⁰ Moreover, the court distinguished the use of assurances in cases where there is a risk of torture from assurances given where a person subject to return may face the death penalty. The court articulated the operational problems inherent in relying on assurances in torture risk cases:

A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.⁵¹

The court added guidelines for the assessment of the adequacy of assurances, including an evaluation of the human rights record of the government offering the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces.⁵² The court’s decision, however, upholds the principle that diplomatic assurances should not be relied upon when they are proffered by a state that practices torture or a state that does not have control over forces that perpetrate acts of torture.

The Case of Rodolfo Pacificador

In a subsequent case that does not explicitly refer to Suresh, the Court of Appeal for Ontario quashed the extradition order (“warrant of surrender”) of Rodolfo Pacificador, suspected of the murder of a former provincial governor in the Philippines in 1986, and held that Philippine assurances of fair treatment were not reliable. In Canada v. Pacificador,⁵³ decided in August 2002, the Court of Appeal held that the Philippines’ “criminal procedures have been interpreted and applied in this very prosecution in a manner that ‘sufficiently shocks the conscience’ that to surrender the appellant would violate his section 7 [Canadian Charter of Rights and Freedoms] right not to be denied life, liberty, and security of the person except in accordance with the principles of fundamental justice.”⁵⁴

While the decision not to surrender Pacificador is based, in the main, on fair trial concerns, including excessive delay and lengthy pre-trial detention, the presiding judge stated that “it is important to view this record as a whole,”⁵⁵ and included consideration of evidence that Pacificador’s co-defendant had been tortured in detention in the Philippines.⁵⁶ Evidence of the co-accused’s torture included subjection to electric shock and mock execution;⁵⁷ evidence not contradicted by the Canadian government.⁵⁸

The court stated in Pacificador: “The appellant makes serious allegations of political manipulation and fabrication of evidence, as well as allegations of appalling treatment of his co-accused during the lengthy pre-trial detention. No evidence has been led to dispute those allegations. At the very least, they establish a significant risk that the appellant will not be fairly treated upon his surrender.”⁵⁹ The court concluded that the Philippines’ authorities “failed to explain why the appellant’s treatment on surrender will differ from that of his co-accused” and thus the assurances of fair treatment “failed to provide an adequate assurance that the delay and pre-trial detention of the appellant’s co-accused would not be inflicted on the appellant as well.”⁶⁰

With respect to the Minister of Justice’s reliance on Philippine assurances of fair trial and fair treatment, the court in Pacificador held that “when one looks at the record as a whole, the failure of the Philippines to provide acceptable explanations of what has gone on in the past or to provide adequate assurances about what might happen in the future, seriously undermines this fundamental element of the Minister’s decision.”⁶¹