The Security Council calls upon states to cooperate fully in the fight against terrorism in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates [or] participates in the commission of terrorist acts or provides safe havens.
- United Nations Security Council Resolution 1566
States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.
- United Nations Security Council Resolution 1566
The global effort to apprehend, interrogate, and prosecute persons suspected of involvement in terrorist activities is a vital project. It is incumbent on states to work individually and collectively to ensure that such persons, if proven guilty, are brought to justice. It is also incumbent on them, however, to ensure that basic rights are upheld.
There is substantial evidence that in the course of the global war on terrorism, an increasing number of governments have transferred, or proposed sending, alleged terrorist suspects to countries where they know the suspects will be at risk of torture or ill-treatment. Recipient countries have included Egypt, Syria, Uzbekistan, and Yemen, where torture is a systemic human rights problem. Such transfers have also been effected or proposed to countries such as Algeria, Morocco, Russia, Tunisia, and Turkey, where members of particular groupsIslamists, Chechens, Kurdsare routinely singled out for the worst forms of abuse.
Because the international ban on torture is absolute and transfers to risk of torture are patently illegal, many sending governments have sought diplomatic assurances from the receiving country that the suspects would not be tortured or ill-treated upon return. In contexts where torture is a serious and persistent problem, or there is otherwise reason to believe that particular individuals will be targeted for torture and ill-treatment, diplomatic assurances do not and cannot prevent torture. Sending countries that rely on such assurances are either engaging in wishful thinking or using the assurances as a figleaf to cover their complicity in torture and their role in the erosion of the international norm against torture. The practice should stop.
The use of diplomatic assurances against torture is a global phenomenon, with sending countries in North America and Europe leading the charge. The issue of diplomatic assurances against torture gained notoriety recently when U.S. officials acknowledged a large number of transfers of suspects to countries where torture is a serious human rights problem, claiming that U.S. authorities regularly sought and received diplomatic assurances of humane treatment from receiving governments prior to the transfers. In an increasing number of those cases, the suspects have credibly alleged that they were tortured.
But the problem is much broader. The Canadian governments security certificate regime permits deportations of alleged terror suspects to places where they are at risk of torture. To stem criticism in some of these cases, the government has sought assurances against torture from receiving states such as Morocco and Egypt. The December 2001 expulsions of two Egyptian asylum seekers from Sweden based on assurances against torture caused a national scandal after the men alleged that they had been tortured and ill-treated in Egyptian custody. The government of the United Kingdom recently proposed securing assurances against torture to transfer terrorist suspects to Algeria and Morocco, countries where persons labeled terrorist are routinely targeted for abusive treatment, including torture. Governments in the Netherlands, Austria, Germany and Georgia have also sought assurances to effect extraditions to countries such as Turkey and Russia, where terrorism suspects are at heightened risk of abusive treatment in detention.
The picture is not entirely bleak. As described below, some cases involving the reliability and sufficiency of assurances have come before courts in several different jurisdictions and some courts already are drawing the line and upholding the ban on sending people to torture. Still, there is great confusion even in the current court cases, reflecting insufficient appreciation of the dynamics of torture and of the hollow-shell that diplomatic assurances represent when applied in situations where there is a risk of torture and ill treatment.
This report draws on new research collected over the past year and from Human Rights Watchs April 2004 report Empty Promises: Diplomatic Assurances No Safeguard against Torture to illustrate the bankruptcy of existing rationalizations for the use of diplomatic assurances in the torture context.1 It summarizes applicable international law, details the practical reasons why diplomatic assurances cannot be relied on in the torture context, and analyzes new cases from a number of jurisdictions in which courts have addressed the issue or are currently grappling with it.
This report begins with a summary of relevant law. The ban against torture is absolute and there is a concomitant absolute prohibition against sending personsno matter what their crime or suspected activityto a place where they would be at risk of torture or cruel, inhuman or degrading treatment or punishment (the nonrefoulement obligation). Every international treaty that addresses the issue is unambiguous on this point.
Because of the prominence diplomatic assurances have assumed in the counter-terrorism context, moreover, an increasing number of authoritative human rights experts have addressed the issue. All have expressed alarm that governments are using assurances to circumvent their most fundamental human rights obligations.
Significantly, sending states request assurances only when there is a perceived need. We have found that governments attempting to secure assurances against torture or ill-treatment seek such guarantees only from authorities in states where torture is systemic, where torture and ill-treatment are recalcitrant or endemic abuses, or where members of a particular ethnic, racial, religious, political, social, or other identifiable group are targeted and routinely tortured. We have yet to come across a case where assurances have been sought from a country in which torture and ill-treatment were not acknowledged human rights problems.
The second part of this report explains why diplomatic assurances cannot provide effective protection against torture and ill-treatment in such circumstances. First, they are based on trust that the receiving state will uphold its word when there is no basis for such trust. Governments in states where torture is a serious human rights problem almost always deny such abusive practices. It defies common sense to presume that a government that routinely flouts its obligations under international law can be trusted to respect those obligations in an isolated case. And indeed, as already noted, there is an increasing number of cases in which allegations of torture are emerging after individuals are returned based on such assurances.
Second, post-return monitoring mechanisms, on which some governments have relied to ensure compliance with diplomatic assurances, have proven no guarantee against torture. Torture is practiced in secret and its perpetrators are often expert at keeping such abuses from being detected. Post-return monitoring schemes often lack many basic safeguards, including private interviews with detainees without advance notice to prison authorities and medical examinations by independent doctors. Many detainees will refuse to speak of abusive treatment in any event due to fear of retribution from prison authorities.
Third, when diplomatic assurances fail to protect returnees from torture as they so often do, there is no way to hold the sending or receiving governments accountable. Diplomatic assurances have no legal effect and the person who they aim to protect has no recourse if the assurances are breached.
The final part of this report analyzes specific cases. This section begins with the United States due to its pervasive use of diplomatic assurances in rendition and immigration cases, and to effect returns of detainees from Guantánamo Bay. It does not address all rendition cases where evidence of torture has surfaced, but focuses on those where assurances have been a confirmed feature of the controversy. The next section on Canada details the use of assurances in both national security cases and asylum cases, an indication that their use in that country is also becoming routine. The final section on Europe documents an alarming and growing trend toward securing diplomatic assurances against torture and ill-treatment to effect extraditions, deportations, and expulsions, despite Europes claim to having the most advanced human rights protection system in the world.
The cases illustrate that individual protection is consistently sacrificed to state interest, that even well-intentioned monitoring under diplomatic auspices is ineffectual, and that, in the end, sending and receiving states have a common interest in pretending assurances are meaningful rather than verifying that they actually are.
The cases also show that, in the last year, diplomatic assurances have emerged as an important issue for national governments and courts, and for public debate. Some governments put significant effort into securing and refining diplomatic assurances to avoid the perception that they are in breach of their human rights obligations. They are trying to perfect an inherently flawed device. In other cases, governments have resorted to patently unreliable assurances merely to facilitate a return, with little concern for the abusive practices of the government proffering the assurances, to give the veneer of compliance with international law.
Once a sending government acknowledges that a risk of torture exists in a specific country, it is incumbent upon it to refuse to transfer a person to that country. Sending governments cannot bypass this rule by securing unreliable and unenforceable diplomatic assurances against torture. Receiving governments must establish a verifiable record of compliance with international norms against torture to build confidence that they will not torture and ill-treat people upon return. Such confidence cannot and should not be gained from a simple offering of untrustworthy assurances.
 Human Rights Watch Report, Empty Promises: Diplomatic Assurances No Safeguard against Torture, April 2004 [online] http://hrw.org/reports/2004/un0404/ (retrieved March 20, 2005).