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 aliens 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 States 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 fugitives 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 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 governments well-documented record of torture, including designation as a country that practices systematic torture by the U.S. Department of States 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 Watchs 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
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:
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 governments record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the governments ability to control its security forces.52 The courts 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.
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 Pacificadors co-defendant had been tortured in detention in the Philippines.56 Evidence of the co-accuseds 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 appellants 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 appellants co-accused would not be inflicted on the appellant as well.60
With respect to the Minister of Justices 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 Ministers decision.61
32 8 C.F.R. § 208.18(c) - Diplomatic assurances against torture obtained by the Secretary of State.
(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country. (2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention against Torture (3) Once assurances are provided under paragraph (c)(2) of this section, the alien's claim for protection under the Convention against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.
33 Regulations Concerning the Convention against Torture, 64 FR 8478, 8484, February 19, 1999.
34 Written Declaration by Samuel M. Witten, Assistant Legal Adviser for Law Enforcement and Intelligence in the Office of the Legal Adviser of the U.S. Department of State, Cornejo-Barreto v. Seifert, United States District Court for the Central District of California Southern Division, Case No. 01-cv-662-AHS, October 2001, para. 8 [online] http://www.state.gov/documents/organization/16513.pdf (retrieved March 24, 2004).
35 Ibid., para. 9.
37 Ibid. para. 10.
39 The government includes other groups, including human rights organizations, as possible post-return monitors. The acknowledgement of the independent nongovernmental sector and its inclusion is welcome. However, it cannot serve as a substitute for active and on-going involvement of the state that surrenders a person to a country based on diplomatic assurances. Many human rights groups are marginalized by governments in states that practice torture. Notwithstanding the inherent problems with post-return monitoring noted above, responsibility for securing access to governmental authorities and holding them accountable for compliance with diplomatic assurances must rest primarily with the surrendering government.
40 Maher Arars complete statement to media, CanWest News Service, November 4, 2003.
41 Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible. Dana Priest, Man was Deported after Syrian Assurances, Washington Post, November 20, 2003, page A24. See also United States Department of State Country Reports on Human Rights Practices for 2002: Syria, published in March 2003 [online] http://www.state.gov/g/drl/rls/hrrpt/2002/18289.htm (retrieved March 26, 2004).
42 According to press reports, Imad Moustafa, the charge d'affaires at the Syrian Embassy in Washington, denied Arar was tortured. Dana Priest, Top Justice Aid Approved Sending Suspect to Syria, Washington Post, November 19, 2003, page A28. Priest quotes Moustafa as saying, Syria had no reason to imprison Arar. He said U.S. intelligence officials told their Syrian counterparts that Arar was an al-Qaeda member. Syria agreed to take him as a favor and to win goodwill of the United States, he said. Ibid.
44 Letter from Clark Kent Ervin, DHS Inspector General, to Hon. John Conyers, January 9, 2004, on file with Human Rights Watch.
46 Gar Pardy, one of Canadas most senior diplomats at the time, stated that The fact that you went looking for assurances, which is reflected here, tells you that even in the minds of the people who made this decision I mean, there were some second thoughts. 60 Minutes II, His Year in Hell, January 21, 2004 [online] http://www.cbsnews.com/stories/2004/01/21/60II/main594974.shtml (retrieved March 26, 2004).
47 See Human Rights Watch, United States: Alleged Transfer of Maher Arar to Syria, Letter to Department of Defense General Counsel Haynes Co-Signed by Amnesty International, The Center for Victims of Torture, International Human Rights Law Group, Lawyers Committee for Human Rights, Minnesota Advocates for Human Rights, Physicians for Human Rights, and RFK Memorial Center for Human Rights A Human Rights Watch Letter, November 17, 2003 [online] http://www.hrw.org/press/2003/11/us-ltr111703.htm (retrieved March 26, 2004).
48 Manickavasagam Suresh v. The Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v. Canada), 2002, SCC 1. File No. 27790, January 11, 2002 [online] http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html (retrieved March 26, 2004).
49 The court noted that, at the time the case was decided, under section 53(1)(b) of Canadas Immigration Act regarding the review of decisions based on national security grounds and return to risk of torture, there is no provision for a hearing, no requirement of written or oral reasons, no right of appealno procedures at all, in fact. Ibid., para. 117. The court determined that the U.N. Convention against Tortures explicit prohibition against deportation where there are substantial grounds for believing a person would be in danger of torture gave rise to a duty to provide procedural safeguards in national security cases where a person would be at risk of torture if returned: Given Canadas commitment to the CAT, we find that the phrase substantial grounds raises a duty to afford an opportunity to demonstrate and defend those grounds. Ibid., para. 119.
50 Ibid., para. 123.
51 Ibid., para. 124.
52 Ibid., para. 125.
53 Minister of Justice for Canada v. Rodolfo Pacificador (Canada v. Pacificador), Court of Appeal for Ontario, No. C32995, August 1, 2002.
54 Ibid., para. 56. The Supreme Court of Canada has ruled that a Ministers surrender decision violates the Canadian Charter of Rights and Freedoms where the person subject to surrender would face a situation that is simply unacceptable or where the nature of the requesting countrys criminal procedures or penalties sufficiently shocks the conscience. United States of America v. Allard and Charette, 33 CCC (3d) 501 SCC, 1987; R. v. Schmidt, 333 CCC (3d) 193 SCC, 1987.
55 Ibid., para. 53.
57 Ibid. para. 15.
58 Ibid., para. 14.
59 Ibid. para. 53.
60 Ibid., para. 51.
61 Ibid. para. 54. In February 2003, the Supreme Court of Canada dismissed the governments appeal in the Pacificador case.