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Developments Regarding Diplomatic Assurances Since April 2004

North America

United States

Reliance on diplomatic assurances when transferring persons at risk of torture is an increasingly common practice by the United States. United States law permits the use of assurances in immigration cases, and authorities have disclosed that it is U.S. policy to seek them as well in so-called “extraordinary rendition” cases and to effect transfers of detainees from custody at Guantánamo Bay.

Since “Empty Promises” was finalized inApril 2004, further evidence has come to light that the U.S. government is transferring persons suspected of terrorist activities to countries where torture is a serious human rights problem. Many such transfers take place without any procedural safeguards—that is, completely outside the law. These transfers, so-called “extraordinary renditions,” have occurred both from U.S. territory and from other countries, either by the direct seizure of foreign nationals on foreign territory by U.S. agents, or the transfer of foreign nationals to third countries by the host authorities facilitated by the use of U.S. aircraft and/or personnel.⁷⁵  In February 2005, high-level U.S. officials defended this renditions program and claimed that it is U.S. policy to seek and secure assurances from the receiving state that a rendered person will be treated humanely upon return (see section Renditions and Assurances below). Persons subject to such renditions have no ability to challenge the legality of their transfers, including any assurances against torture or ill-treatment that the U.S. government may have been proffered by a receiving state.

The use of assurances against torture is expressly provided for in U.S. law only in immigration cases in which a person subject to removal raises a claim under the Convention against Torture.⁷⁶ According to the code of federal regulations (C.F.R.), 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 secretary of state, the attorney general determines whether the assurances are “sufficiently reliable” to allow the transfer in compliance with the obligations of the United States under the Convention against Torture. Once assurances are approved, any claims a person has under the convention will not be given further consideration by U.S. authorities.⁷⁷The reliability assessment of the assurances is not reviewable by a court.⁷⁸

 The U.S. government has also stated that it seeks and secures assurances against inhumane treatment before transferring detainees from Guantánamo Bay to their home countries or to third countries.⁷⁹ To date, the detainees have no right to challenge the reliability or sufficiency of such assurances before an independent tribunal.

Case of Yemeni Detainees and Transfers from Guantánamo Bay

The inability to challenge assurances of fair treatment upon return has arisen in the context of returns of so-called “enemy combatants” from Guantánamo Bay. In March 2005, a group of Yemeni men currently in detention at Guantánamo Bay filed a motion for thirty days’ advance notice of any intention to remove them from U.S. custody to Yemen.⁸⁰ The men argued that in the event they were transferred directly to Yemeni authorities, they would be at risk of torture and ill-treatment in detention there, and sought notice in order to challenge their transfers on human rights grounds. They also argued that their currently pending petitions for habeas corpus in U.S. courts would become moot if they were transferred back to Yemen.

The U.S. government responded that it is U.S. policy not to send any detainee to a place where it is more likely than not that the detainee would be tortured upon return.⁸¹ It also claimed that in cases where there was a risk of torture, the government sought and secured diplomatic assurances against such treatment.⁸² The U.S. government argued, however, that none of the information regarding negotiations for transfers out of Guantánamo Bay should be made public, including information related to the reliability or sufficiency of assurances against torture, nor should it be subject to judicial review:

If the Court were to entertain petitioners’ claims, it would inject itself into the most sensitive of diplomatic matters. Such judicial review could involve scrutiny of United States’ officials judgments and assessments on the likelihood of torture in a foreign country, including judgments on the reliability of information and representations or the adequacy of assurances provided, and confidential communications with the foreign government and/or sources therein. Disclosure and/or judicial review of such matters could chill important sources of information and interfere with our ability to interact effectively with foreign governments. In particular, the foreign government in question [Yemen], as well as other governments, would likely be reluctant to communicate frankly with the United States in the future concerning torture and mistreatment concerns. This chilling effect would jeopardize the cooperation of other nations in the war on terrorism.⁸³

A U.S. federal judge issued a temporary restraining order (TRO) on March 12, 2005, forbidding the government from transferring the Yemeni detainees until a March 22, 2005 hearing on their motion for advance notice could be heard.⁸⁴ The judge noted that press reports indicated that transfers from Guantánamo were being planned,⁸⁵ but that U.S. authorities currently gave no advance notice regarding them. She ruled that the Yemeni detainees, who feared being transferred in the “dark of night”⁸⁶ directly into the hands of the Yemeni authorities for continued detention, could suffer irreparable harm if such transfers were effected.⁸⁷

On March 29, 2005, a federal judge granted the Yemeni petitioners a preliminary injunction requiring the U.S. government to give him and the detainees’ attorneys thirty-days’ advance notice before any of the men could be removed from Guantánamo Bay.⁸⁸ The judge granted injunctive relief, in the main, because the men’s transfers to another nation would deprive the court of its jurisdiction over the men’s habeas corpus petitions, thereby effectively extinguishing those claims.⁸⁹ The judge stated that “The government’s invocation of sudden exigency requiring their transfer now cannot trump [the men’s] established due process rights to pursue their habeas action in federal court.”⁹⁰ The judge also noted that any alleged injury the government might suffer with respect to its efforts to negotiate detainee transfers with foreign governments, including seeking and securing assurances against inhumane treatment upon return, did “not outweigh the imminent threat facing [the men] with respect to the entirety of their claims before the court [emphasis in the original].”⁹¹

It remains unclear whether the U.S. government will be required at some point in the future to reveal information regarding assurances against torture from states to which Guantánamo detainees will be transferred. It is increasingly clear, however, that the U.S. government is limited in its ability to monitor and enforce any such assurances. On March 16, 2005, Pentagon spokesman Lieutenant Commander Flex Plexico admitted as much when he stated that although the government seeks assurances from countries that Guantánamo detainees will be treated humanely upon return, “[w]e have no authority to tell another government what they are going to do with a detainee.”⁹²

Update: Case of Maher Arar

The U.S. government has also refused to release any information regarding the assurances against torture it claims it received from Syria in the case of Maher Arar. In September 2002, U.S. authorities apprehended Arar, a dual Canadian-Syrian national, in transit from Tunisia through New York to Canada, where he has lived for many years.⁹³ After holding him for nearly two weeks, and failing to provide him with the ability to effectively challenge his detention or imminent transfer, U.S. immigration authorities flew Arar to Jordan, where he was driven across the border and handed over to Syrian authorities. The transfer was effected despite Arar’s repeated statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. The U.S. government has claimed that prior to Arar’s transfer, it obtained assurances from the Syrian government that Arar would not be subjected to torture upon return.⁹⁴

Arar was released without charge from Syrian custody ten months later and has credibly alleged that he was beaten by security officers in Jordan and tortured repeatedly, often with cables and electrical cords, during his confinement in a Syrian prison.⁹⁵  The U.S. government has not explained why it sent Arar to Syria rather than to Canada, where he resides, or why it believed Syrian assurances to be credible in light of the government’s well-documented record of torture, including designation as a country where torture is a serious abuse by the U.S. Department of State’s 2001 (issued March 4, 2002) Country Reports on Human Rights Practices.⁹⁶ It remains unclear whether the immigration regulations that should govern cases like Arar’s were followed.

In November 2003, just days after Maher Arar was released from Syrian custody, President Bush claimed in a speech that instead of restoring national honor, the government of Syria had left “a legacy of torture, oppression, misery, and ruin.”⁹⁷ In January 2005, the Bush administration named Syria as a country that actively sponsors terrorism and encouraged the Syrian government to “open the door to freedom.”⁹⁸ As one commentator has noted:

From the U.S. perspective, Syria is led by a gangster regime that has among other things, sponsored terrorism, aided the insurgency in Iraq, and engaged in torture. So here’s the question. If Syria is such a bad actor—and it is—why would the Bush administration seize a Canadian citizen at Kennedy Airport in New York, put him on an executive jet, fly him in shackles to the Middle East and then hand him over to the Syrians, who promptly tortured him?⁹⁹

Despite numerous lawsuits and inquiries into the case, the U.S. government has consistently refused to answer that question and has declined to release any information regarding Arar’s apprehension and transfer to Syria. The Bush administration has ignored numerous requests for a specific explanation regarding the reliability and credibility of Syrian diplomatic assurances, but former CIA counterterrorism official Vincent Cannistraro has remarked: “You would have to be deaf, dumb and blind to believe that the Syrians were not going to use torture, even if they were making claims to the contrary."¹⁰⁰

Arar filed suit in U.S. Federal Court on January 22, 2004, alleging that U.S. officials and agents involved in his transfer violated the 5^th amendment to the U.S. Constitution; the U.S. government’s treaty obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Torture Victim Protection Act of 1991.¹⁰¹ In seeking to dismiss the lawsuit, the U.S. Department of Justice employed the rarely invoked “state secrets privilege”¹⁰² and filed a motion in January 2005 stating that the release of any official information concerning Arar’s transfer to Syria could jeopardize the intelligence, foreign policy, and national security interests of the United States.¹⁰³ The U.S. government claimed that the disclosure of classified information in the Arar case “reasonably could be expected to cause exceptionally grave or serious damage to the national security interests of the United States” and to its diplomatic relations.¹⁰⁴ It is disturbing that the U.S. appears to be using the “state secrets privilege” to shield governmental conduct from public scrutiny. A ruling on the Justice Department’s motion is pending.

The United States government has also flatly refused to cooperate with the Canadian commission of inquiry investigating the role of Canadian police and security organizations in Arar’s apprehension and transfer by U.S. authorities.¹⁰⁵ In response to a June 2004 request from the Canadian inquiry’s lead counsel for information and other forms of cooperation, William H. Taft, IV, the U.S. State Department legal adviser, wrote:

The United States government declines to provide documents in response to your request, or to provide statements by individuals involved in the case, or to facilitate witnesses appearing before the commission. We would note that as your inquiries focus on the actions of Canadian authorities, many of those questions should best be directed to the Government of Canada, rather than to the United States government.¹⁰⁶

The U.S. Department of Homeland Security (DHS) Inspector General initiated an internal review of the Arar case in January 2004 to determine what role U.S. immigration officials played in Arar’s apprehension and transfer.¹⁰⁷ The review will seek to answer the crucial question of why Arar was sent to Syria. Whether the DHS review will provide a complete picture of U.S. government conduct will depend in large part on whether the Inspector General can secure the cooperation of other arms of the U.S. government involved in handling Arar’s case, in particular the Department of Justice and the Central Intelligence Agency (CIA).

Renditions and Assurances: U.S. Acknowledges “No Control” Post-Transfer

While the DHS review offers some hope of revealing new information about the Arar case, the overall lack of transparency in the aftermath of Arar’s release has reinforced concerns that diplomatic assurances are being used in some cases as justification to transfer persons suspected of having information regarding terrorism-related activities to countries where torture is routinely used, sometimes specifically to extract such information. A spate of U.S. government revelations in February and March 2005 regarding the U.S. renditions program indicates that those concerns are not unwarranted.

High-level U.S. administration officials have defended the practice of transferring detainees by rendition in the “war on terrorism” to other countries for interrogation, but have also insisted that in all such cases they seek assurances that the detainees will not be tortured. On February 16, 2005, Director of Central Intelligence Porter J. Goss testified before Congress and defended the CIA’s participation in such transfers.¹⁰⁸ Goss also admitted that the United States had a limited capacity to enforce diplomatic assurances against torture:

We have a responsibility of trying to ensure that they are properly treated, and we try and do the best we can to guarantee that. But of course once they’re out of our control, there’s only so much we can do.¹⁰⁹

Newly-appointed U.S. Attorney General Alberto Gonzales also said in a March 2005 interview that the U.S. State Department and CIA secure assurances that detainees subject to transfer will be treated humanely upon return, but that once a detainee is in custody in another country, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us… If you're asking me, 'Does a country always comply?' I don't have an answer to that."¹¹⁰

These striking admissions by U.S. government officials acknowledge that once a detainee is transferred there is no way to enforce diplomatic assurances or fully guarantee a returnee’s safety. In response to Goss’s claim that assurances are “checked and double-checked” the New York Times concluded:

Those assurances are worthless, and the Bush administration surely knows it. In normal times, the governments of these countries have abysmal standards for human rights and humane treatment, and would have no problem promising that a prisoner wouldn’t be tortured—right before he was tortured. And these are not normal times.¹¹¹

The Bush administration, however, has continued to defend the practice of relying on assurances against torture, even from the government of Uzbekistan, a country in which torture is systematic.¹¹² At a press conference on March 16, 2005, President George W. Bush stated that one way to protect the American people and their friends from attack post-September 11 was “to arrest people and send them back to their country of origin with the promise that they won't be tortured.” ¹¹³ In response to a reporter’s follow-up question, “…what is it that Uzbekistan can do in interrogating an individual that the United States can't?” the President simply responded, “We seek assurances that nobody will be tortured when we render a person back to their home country.”¹¹⁴

No Effective Opportunity to Challenge Reliability of Assurances

The most glaring deficiency in U.S. law and policy lies precisely in the absence of express provision for procedural guarantees for the person subject to transfer, including any opportunity to challenge the credibility or reliability of diplomatic assurances before an independent judicial body. This deficiency applies with equal force to immigration cases, which are governed by the procedures set forth in federal regulations; to renditions outside of any legal framework, which lack even the basic and flawed process set forth in the immigration regulations; and to returns from any place of detention within U.S. jurisdiction or effective control, including Guantánamo Bay.

It is striking that the executive branch and intelligence services have sole discretion for seeking, securing, and determining the reliability and sufficiency of diplomatic assurances. The verification and reliability assessment required by the immigration regulations lies with the Secretary of State and Attorney General and is completely discretionary. In rendition cases, the State Department and CIA apparently are tasked with securing and evaluating assurances.¹¹⁵ In returns from Guantánamo Bay, the Department of Defense, in consultation with the State Department and other government agencies, assumes that responsibility. Thus, although the reliability of assurances to protect against torture is central to determining whether a transfer is lawful, there is no provision for judicial review or other independent evaluation of assurances in any transfer effected by the U.S. government based on them. The executive branch essentially decides for itself whether its transfer of a person to the custody of another government is legal.¹¹⁶

Access to due process is a cornerstone of both U.S. law and international human rights standards. As the Association of the Bar of the City of New York has correctly pointed out:

[T]he unfettered discretion the Executive Branch exercises in seeking diplomatic assurances and making the unilateral decision to transfer an individual pursuant to those assurances leaves the individual with no due process protection or the safeguard of judicial oversight. This procedural shortcoming likely violates international law. The United States has an obligation to provide detainees in its custody an effective opportunity to challenge the reliability and adequacy of diplomatic assurances.¹¹⁷

Moreover, neither U.S. policy nor the immigration law requires the executive to reject as inherently unreliable assurances from governments in countries where torture is a serious human rights problem or where specific groups are routinely targeted for torture and ill-treatment and a person subject to return based on assurances is a member of such group. Under current U.S. law and policy, the government could transfer or remove a person at high risk of torture or ill-treatment based on the simplest and vaguest of promises from governments that routinely violate the law.

Legislative Initiatives

The Abu Ghraib torture scandal, the Arar case, “renditions” to torture, and revelations of torture and ill-treatment by U.S. forces in Afghanistan and at Guantánamo Bay have given rise to a public debate about the U.S.’s obligations under international law and the imperative to halt and prevent torture and ill-treatment at home and abroad. In this context, some lawmakers have proposed new legislation to address the prohibition against torture, including the absolute ban on returning a person to a place where he or she would be at risk of torture or ill-treatment. Several key proposals have addressed the ban on transfers to risk of torture and the issue of whether or not diplomatic assurances are an effective safeguard against torture and ill-treatment.

9/11 Recommendations Implementation Act

In September 2004, the Republican party leadership in the U.S. House of Representatives introduced a bill titled “9/11 Recommendations Implementation Act (H.R. 10),” intended to implement the recommendations of the U.S. 9/11 Commission. The bill would have authorized the U.S. government to deport non-citizens who it labeled as national security threats or criminal aliens to countries where they would be at grave risk of torture, in clear violation of the U.S.’s obligations under the Convention against Torture. Human rights groups, including Human Rights Watch, strongly opposed the bill, stating that it would violate the U.S.’s Convention against Torture obligations and U.S. domestic law and have “immediate and damaging consequences.”¹¹⁸ In the face of strong public criticism, the House Republican leadership amended this section of the bill and deleted the exemption from the Convention against Torture protection against refoulement to torture. Instead, they included a provision that retained the ban on removals that would violate the Convention against Torture, but added draconian detention provisions for certain classes of non-citizens who are granted this protection. These detention provisions lacked adequate standards and failed to provide for judicial review to safeguard against abuse.¹¹⁹ The provisions were not included in the legislation that was eventually passed in January 2005.¹²⁰

Torture Outsourcing Prevention Act: Markey Bill

Representative Edward J. Markey, a member of the U.S. House of Representatives from the Democratic Party, has been a leading opponent of the practice of renditions in the U.S. Congress and has also argued that diplomatic assurances from abusive regimes are inherently unreliable. In February 2005, Markey introduced a bill entitled the “Torture Outsourcing Prevention Act (H.R. 952)”.¹²¹ The bill reaffirms the absolute prohibition against torture and refoulement and states that “it is critically important for that all transfers of individuals to other countries occur with full due process of law and in conformity with the obligations of the United States under article 3 of the Convention against Torture.”¹²² The bill specifically addresses the ineffectiveness of diplomatic assurances against torture:

The reliance on diplomatic assurances from a government that it will not torture or ill-treat a person returned to that government is an ineffective safeguard for protecting persons from torture or ill-treatment. Assurances from a government known to engage in systematic torture are inherently unreliable. There is strong evidence that governments such as Egypt, Syria, and Uzbekistan have violated such assurances they have provided.¹²³

The bill would supplement the existing legal prohibition on returning individuals to countries where they are likely to be tortured by requiring the State Department to establish a list of countries that commonly use torture in detention and interrogation. It would prohibit U.S. officials or contractors from transferring any person in their custody to a country on the list, unless those transfers occur as part of an immigration or extradition proceeding where the individual has an opportunity to raise a Convention against Torture claim in a judicial forum, including the opportunity to challenge the reliability and sufficiency of any diplomatic assurances.

Under the bill, the Secretary of State could waive the prohibition if she could certify that a country on the list had “ended” the acts of torture and ill-treatment that were the basis for the inclusion of the country on the list and that there was a verifiable mechanism in place to ensure that any person transferred to said country would not be tortured or ill-treated. Written or oral assurances against torture from a government would not be sufficient to constitute such a verifiable mechanism. In all cases, the bill would prevent reliance on diplomatic assurances as the basis for determining that an individual is not at risk of torture.

To ensure compliance with these provisions, the bill would require the Secretary of Homeland Security to revise the immigration regulations implementing article 3 of the Convention against Torture:

…to ensure that written or verbal assurances made by a country that a person in immigration proceedings in the United States (including asylum proceedings) will not be tortured or subjected to cruel, inhuman or degrading if the person is removed by the United States to the country are not, standing alone, a sufficient basis for believing that the person would not be tortured or subjected to such treatment if the alien were removed to the country.¹²⁴

It would also require the other government agencies to issue regulations regarding the responsibilities of U.S. government officials and contractors to comply with article 3 of the Convention against Torture both within and outside the U.S.

Significantly, the bill would require the U.S. to allow a person subject to return based on assurances an opportunity to challenge the reliability of assurances in an independent judicial forum.¹²⁵ The bill would thus address the glaring absence of procedural guarantees to effectively challenge diplomatic assurances secured by the U.S. in its efforts to effect returns based on them.

On March 16, 2005, Rep. Markey proposed an amendment to a supplemental appropriations bill that prohibited any of the funds made available by the act to be used for any activities that would contravene the U.S.’s obligations under the Convention against Torture.¹²⁶ In his statement introducing the amendment, Markey directly referenced the U.S. renditions program and said:

The Administration maintains that it is in full compliance with the Convention against Torture. Compliance, they say, is guaranteed by the dubious practice of asking countries known to torture prisoners for “promises” that they will not torture our prisoners. These so-called “diplomatic assurances” then provide the cover for sending a suspect to that country to undergo interrogation. . . “[D]iplomatic assurances” not to torture are not credible, and the Administration knows it.”¹²⁷

The amendment passed in the House of Representatives by an overwhelming majority of 420 to 2, and was an important first step in addressing the U.S. practice of handing people over to governments that torture.¹²⁸

Convention against Torture Implementation Act 2005: Leahy Bill

On March 17, 2005 Senator Patrick Leahy introduced the “Convention against Torture Implementation Act 2005 (S. 645)” in the U.S. Senate.¹²⁹ This legislation is similar in substance and scope to the Markey bill.

The bill would prohibit the transfer of any person in U.S. custody to a country that appeared on a designated list of states where torture was a serious human rights problem. It would also prohibit such a transfer where “there are otherwise substantial grounds for believing that the person would be in danger of being subjected to torture” even if the country of return did not appear on the designated list. The secretary of state could waive the prohibition if the acts that were the basis for a particular country’s inclusion on the list “have ended” and a verifiable mechanism was in place to ensure that a person transferred to that country would not be tortured. Transfers made through lawful extradition of immigration proceedings would not be subject to the list of countries, but would still have to meet the standard set forth in article 3 of the Convention against Torture in each individual case.

The U.S. would be prohibited from relying on diplomatic assurances as justification for any transfer of a person to another country:

(c) Assurances Insufficient—Written or verbal assurances made to the United States by the government of a country that persons in its custody or control will not be tortured are not sufficient for believing that a person is not in danger of being subjected to torture.

The Leahy bill would prohibit the use of diplomatic assurances as a sufficient safeguard against torture in immigration and extradition cases, as well as in rendition cases. In his statement in the Senate, Senator Leahy pointed to this provision of the bill as the most significant:

Most importantly, the bill closes the diplomatic assurances loophole. We would no longer accept assurances from governments that we know engage in torture. Our past reliance on diplomatic assurances is blatantly hypocritical. How can our State Department denounce countries for engaging in torture while the CIA secretly transfers detainees to the very same countries for interrogation?¹³⁰

Case of Ashraf al-Jailani

The case of Ashraf al-Jailani is emblematic of the impact that some of these positive legislative initiatives could have in the future. While most of the proposed legislation is keyed toward the phenomenon of renditions that occur outside U.S. territory, the bills also address the use of diplomatic assurances in ordinary immigration proceedings in the U.S. An immigration judge in the al-Jailani case ruled that returning a person to a risk of torture not only violates the U.S.’s Convention against Torture obligations, but could have far-reaching policy implications for creating the perception that the U.S. condones the practice of torture for countries fighting against terrorism. Disturbingly, the judge also found that securing credible diplomatic assurances against torture could be a condition for al-Jailani’s return to Yemen, despite the country’s well-documented and even admitted use of torture.

In December 2004 an immigration judge ruled that al-Jailani, a national of Yemen suspected by the Federal Bureau of Investigation (FBI) of terrorist activity, could not be removed to Yemen because his fears of torture and ill-treatment upon return were well-founded.¹³¹ The decision recounted in some detail the voluminous credible evidence of Yemen’s targeting of Islamists or suspected terrorists for especially abusive practices, including mass arrest; incommunicado detention; torture and ill-treatment in detention facilities with no independent oversight of conditions or practices therein; and denial of access by detainees to lawyers and independent courts.¹³² 

The judge also noted that Yemen admits that torture is a serious problem, but that Yemeni officials justify such abuses in light of the urgent need to combat terrorism.¹³³ Moreover, the judge took into account the May 2004 conclusions of the Committee against Torture regarding Yemen’s “failure to address in adequate detail the practical implementation of the Torture Convention, and further failure to comply with the reporting guidelines of the Committee in this regard.”¹³⁴

The judge, however, went further than merely assessing al-Jailani’s individual risk of torture or ill-treatment. He concluded that sending al-Jailani back would also have broader policy implications. Returning al-Jailani would not only violate the U.S.’s Convention against Torture obligations, “but could also be construed as sanctioning Yemen’s use of torture by its security forces thereby bringing the United States into disrepute in the international community.”¹³⁵

Despite all this, the judge determined that assurances that al-Jailani would not be tortured would be sufficient to justify his removal to Yemen if they could be deemed credible. It is difficult to see how any assurances from a government with Yemen’s record of torture could be considered credible or reliable. But the loopholes noted above with respect to the U.S. regulations almost surely account for this apparently contradictory ruling. When the judge found that credible assurances would permit al-Jailani’s removal to Yemen, he was simply following the regulations that apply in immigration proceedings.¹³⁶ The executive branch’s discretion to secure and evaluate diplomatic assurances leave open the very real possibility that it would deem assurances from Yemen to be credible. Also, because al-Jailani enjoys no procedural rights in relation to diplomatic assurances under the regulations, he would not be entitled to challenge the assurances in a court.

Yemen not only routinely violates the prohibition against torture, but as noted in the al-Jailani decision, openly admits that it deems such abuses to be necessary in its efforts to combat terrorism. Under these circumstances, diplomatic assurances from the Yemeni authorities would be inherently unreliable and should not be acceptable as a safeguard against torture. Moreover, if the U.S. were to return al-Jailani to Yemen based on assurances, the policy considerations so eloquently articulated in the decision still obtain: accepting assurances for the protection of one person could be perceived as sanctioning Yemen’s abusive practices for the vast majority of persons vulnerable to torture and ill-treatment.

The Department of Homeland Security has appealed the al-Jailani ruling. At the time of writing, it remained unclear if the U.S. government will seek assurances from the Yemeni authorities or if it will simply argue that al-Jailani would not be at risk of torture upon return, even in the absence of assurances.

Canada

The Canadian government seeks and secures diplomatic assurances for returns in some cases where there is an acknowledged risk of torture, including for persons subject to “security certificates.” Such certification by the executive authorizes the government to detain a person—suspected of being a threat to the security of Canada—for an unspecified period without charge or trial; present secret evidence, not available to anyone except the government and a judge, in closed hearings to which detainees and their lawyers do not have access; and to deport him or her.¹³⁷ At the time of writing, there were several hearings and judicial reviews scheduled, and decisions pending, to determine the validity of some security certificate cases. Some of these procedures address the issue of whether security certificates in individual cases are “reasonable” and others review prior assessments of the risk of torture that detainees subject to security certificates might face if deported. Canadian courts have not yet been willing to permit the government to breach the absolute ban on refoulement in these particular cases.

Human rights groups and various segments of civil society have severely criticized the continuing use of security certificates, correctly pointing out that the process violates the prohibition against indefinite detention, internationally recognized procedural guarantees, and the absolute obligation not to send a person to a country where he or she would be at risk of torture.¹³⁸

Prior to deportation, Canadian immigration authorities normally conduct a protection assessment to determine whether an individual would be at risk of torture upon return. However, if a security certificate is deemed “reasonable” by a judge, the ability to successfully claim protection from deportation based on Canada’s nonrefoulement obligations is significantly reduced. In the 2002 case of Suresh v. Canada, the Supreme Court of Canada acknowledged that international law bans absolutely returns to countries where there is a risk of torture, but in an extraordinary departure from that law, stated, “We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified:”¹³⁹

Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because article 3 of the Convention against Torture directly constrains the actions of the Canadian government, but because the fundamental justice balance under s[ection] 7 of the [Canadian] Charter [of Rights and Freedoms] generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of the exceptional discretion to deport to torture, if any, must await future cases.¹⁴⁰

One can only assume that by securing assurances for controversial deportations, the Canadian government is seeking to avoid invoking the disturbing “exception” carved out by the Suresh court. The Canadian government has openly acknowledged that some persons subject to security certificates would be at risk of torture or ill-treatment upon return (see Charkaoui and Mahjoub cases below), thus triggering the nonrefoulement obligation. The government then seeks assurances from the receiving country, ostensibly to reduce the risk of abusive treatment. Diplomatic assurances, however, do nothing to mitigate that risk. As a result, relying on diplomatic assurances, an ineffective safeguard against torture, to effect such deportations in fact would place the Canadian government within the terms of the Suresh “exception” and would violate the absolute prohibition against torture and refoulement.

Recent cases, however, indicate that despite the Suresh “exception,” the courts have been appropriately reluctant to permit the government to breach the absolute ban on torture, including the nonrefoulement obligation, even in cases where security certificates have been issued.

Case of Adil Charkaoui

The government of Canada is currently holding four Arab men in prison without charge based on secret evidence under security certificates.¹⁴¹ A fifth man, Adil Charkaoui, a Moroccan national, was released on bail on February 17, 2005, after a judge determined that any alleged imminent threat he posed to Canada—based on suspicions that he was associated with suspected terrorists—had been “neutralized” due to Charkaoui’s twenty-one month detention in prison.¹⁴² Together the men constitute the so-called “secret trial five.”

Charkaoui’s release was a rare development as he is only the second person ever released while still subject to a security certificate. While the court imposed release conditions, such as regular reporting to the police, the decision is striking insofar as it determines that despite the security certificate, any potential danger Charkaoui presented had “eased with time.”¹⁴³

Denied Protection

While Charkaoui was still in custody, Canadian immigration officials and government authorities determined that he would be at risk of abusive treatment if deported. In August 2003, Canadian immigration authorities completed a pre-removal risk assessment confirming that Charkaoui would be at risk of torture, and possibly death, if returned to Morocco.¹⁴⁴ A “security review” conducted in August 2004 by the Immigration Intelligence Division of the Canadian Border Services Agency, however, concluded that the government should not grant protection to Charkaoui, labeling him a danger to the security of Canada.¹⁴⁵

The security review concluded that deportation proceedings could commence. The decision was based in large part on written assurances from Morocco that it would not torture or ill-treat Charkaoui upon return. The government acknowledged that some torture takes place in Morocco, but concluded it was not systematic. Discounting reports that the Moroccan authorities targeted persons labeled as terrorists or security threats for mistreatment, the government decided that Charkaoui was under no individual threat. Moreover, the government claimed that the assurances proffered by the Moroccan government were evidence that he would face no risk if sent back.  

Morocco’s Assurances

The assurances themselves were of the most basic sort. In a letter to the Moroccan authorities dated February 18, 2004, the Canadian Ministry of Foreign Affairs explicitly identified Charkaoui as a “threat to the security of Canada,” and then posed three questions: 1) Will the government of Morocco ensure that Mr. Charkaoui is not tortured or subject to cruel, inhuman and degrading treatment, in conformity with Morocco’s obligations under the Convention against Torture?; 2) Will the government of Morocco confirm in writing that it will conform with its obligations under the International Covenant on Civil and Political Rights (ICCPR)?; and 3) Will the government of Morocco confirm in writing that Mr. Charkaoui will not be subject to the death penalty?¹⁴⁶   

The assurances from Morocco, dated April 18, 2004, stated that Charkaoui would receive fair treatment upon return, including protection against torture and ill-treatment, in accordance with the Moroccan constitution and international human rights treaties, including the ICCPR and the Convention against Torture. Thus, the Moroccan authorities simply restated that they would abide by their currently existing treaty obligations, which the Moroccan authorities, security officers, and police routinely violate in their dealings with suspected Islamic militants and those suspected of engaging in terrorist activities.

Morocco’s Record of Abuse

Adil Charkaoui’s protection assessment documents the record of abusive practices perpetrated by the Moroccan police and security service 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.¹⁴⁷ In March 2004, Human Rights Watch submitted a letter on Charkaoui’s behalf for use in the security review based on primary research undertaken in Morocco in January-February 2004. The letter concluded that Charkaoui would be at risk of torture and ill-treatment if returned to Morocco. A lengthy report issued by Human Rights Watch in October 2004, based on field research in Morocco, charged the government with “backsliding” on human rights progress and detailed serious rights abuses, including torture and ill-treatment, targeting suspected terrorists in violation of Morocco’s international treaty obligations:

Morocco must do far more to reverse the deterioration in human rights that has occurred in the treatment of persons suspected of involvement in terrorist crimes. Given the pattern of human rights violations emanating from the crackdown on suspected Islamist militants and the application of the 2003 counter-terror law, Moroccan authorities should take immediate steps to bring all practices and laws into compliance with both the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (CAT). Above all, law enforcement agents must be held accountable when they violate laws governing the detention and treatment of suspects.¹⁴⁸

The United States Department of State Country Reports on Human Rights Practices, released on February 28, 2005, also contains details of torture, mistreatment, and denial of rights during the judicial process of detainees in the aftermath of the May 2003 terrorist attacks in Casablanca. The report states, “The Government [of Morocco] generally rejected these allegations” and  “[t]here was no indication that the Government took any further action in response to claims of torture, made at the Court of Appeal in Fez, by 29 persons accused of terrorism, and reportedly judicial authorities refused to order any medical examinations.”¹⁴⁹

Assurances from the Moroccan government that it will comply with its international human rights obligations cannot be trusted in the face of substantial evidence to the contrary. The Canadian government cannot point to the Moroccan government’s unconvincing promises as evidence of Canada’s or Morocco’s general commitment to human rights or concern for the individual safety and well-being of Adil Charkaoui. In order to deport Mr. Charkaoui to Morocco, the Canadian government would have to invoke the Suresh “exception” to the international ban on torture and refoulement, and send him back to the risk of torture. In fact, the August 2004 security review itself arrived at the very same conclusion. Anne Arnott, the minister’s delegate writing for the government, concluded that even if the government has underestimated the risk to Charkaoui, the “extraordinary danger” he constitutes to Canada’s security justifies sending him back to Morocco.¹⁵⁰ 

In February 2005 the Canadian government acknowledged an outstanding Moroccan arrest warrant for Charkaoui. In light of this, Canadian immigration officials agreed to re-evaluate the August 2004 security review that concluded that Charkaoui could be deported.¹⁵¹

Hearings to determine whether Charkaoui’s security certificate is “reasonable” were held in February and March 2005. The hearings were suspended at the time of writing, pending issuance of the new risk assessment.

Case of Mohamed Zeki Mahjoub

On February 1, 2005, a Canadian federal court ruled that the Canadian government was prohibited from deporting one of the “secret trial five”—Egyptian national Mohamed Zeki Mahjoub, a recognized refugee alleged to be a member of the Vanguards of Conquest, a faction of Egyptian al-Jihad al-Islamiya.¹⁵² The judge in Mahjoub ruled that it was “patently unreasonable” for the government to deport Mahjoub when the minister’s delegate who made the determination did not have access to confidential informational in the government’s dossier.¹⁵³ The court ruled that an independent and proper assessment of the risk Mahjoub posed to Canada’s security required a review of at least some of that information.

The judge determined that the issue of “whether circumstances would ever justify deportation to face torture” as per the Suresh “exception” must be decided on the basis of a proper evidentiary record, which did not exist in the Mahjoub case. The court therefore decided to remit the case for a redetermination. The judgement is nonetheless instructive on the issues of the delegate’s finding that Mahjoub would, in fact, be at risk of torture and ill-treatment if returned to Egypt, and the Canadian government practice of securing diplomatic assurances to justify deportations where there is an acknowledged risk of such abuse.

The delegate’s report stated that Mahjoub would be taken into custody immediately upon return to Egypt and subjected to a retrial for an April 1999 conviction in absentia for terrorist activities. The report concluded:

In consideration of the reports regarding human rights violations in Egypt towards members of VOC [Vanguards of Conquest] and AJ [al-Jihad], it is my opinion that on the balance of probabilities, Mr. Mahjoub could suffer ill-treatment and human rights abuses soon after he is detained.¹⁵⁴

In light of this acknowledgement of Mahjoub’s risk of torture and ill-treatment, the Canadian government sought and secured diplomatic notes on three separate occasions, in which Egyptian officials confirmed that if returned, Mahjoub “would be treated in full conformity with constitutional and human rights laws.”¹⁵⁵ The court decision noted:

Mr. Mahjoub had argued that these assurances would not be respected, and submitted general reports concerning human rights abuses in Egypt, as well as reports from Amnesty International, Human Rights Watch, and an expert in Islamic law. The reports documented the experience of other Egyptians accused of similar terrorist activities who were sent back to Egypt from other countries and who, notwithstanding assurances, were subjected to alleged human rights abuses, ill-treatment and incommunicado detention.¹⁵⁶

In a striking admission, the minister’s delegate concluded that the reports “presented a credible basis for calling into question the extent to which the Egyptian government would honor its assurances.”¹⁵⁷

Those reports included information from Human Rights Watch and others regarding the December 2001 expulsion from Sweden of Ahmed Agiza, an Egyptian asylum seeker, who was subsequently held incommunicado, tortured and subjected to an unfair retrial upon return to Egypt. The Egyptian authorities had given the Swedish government assurances that Agiza would not be tortured and would be afforded a fair trial. The delegate in the Mahjoub case alleged that Mahjoub and Agiza were associates. Agiza was also tried in absentia in Egypt in April 1999 (see section below on Sweden).

Despite the government’s admission of Mahjoub’s risk of torture, the delegate determined that Mahjoub should not be allowed to remain in Canada because he posed an “extraordinary danger” to Canada’s security and thus fell within the provisions of the refoulement exception to Canada’s Immigration and Refugee Protection Act.¹⁵⁸

In quashing the delegate’s determination and sending the case back for redetermination with a view to establishing a proper evidentiary record, the judge in Mahjoub expressed skepticism about the Suresh “exception:”

The Supreme Court of Canada has left the issue open by not excluding the possibility that, in exceptional circumstances, such deportation may be justified, either as a consequence of the balancing process required by section 7 of the Charter or under section 1 of the Charter. There are, however, powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under…the Charter.¹⁵⁹

A decision on Mahjoub’s application for bail was pending at the time of writing.

Case of Lai Cheong Sing and Family

The use of diplomatic assurances in Canadian asylum cases is another disturbing development. Assurances have been sought in cases involving persons who do not have a security profile, but who were unsuccessful in their efforts to seek asylum.

The case of the Lai family illustrates the danger that the use of diplomatic assurances in terrorism or national security cases poses to a broader pool of people subject to forced return. Lai Cheong Sing, his wife Tsang Ming Na, and three children were excluded from refugee status in June 2002 on the ground that there were reasons to believe they had committed serious non-political offenses, namely bribery and smuggling, in Hong Kong and China prior to arrival in Canada in 1999.¹⁶⁰ In its ruling, the court overlooked substantial evidence that torture was pervasive in the Chinese criminal justice system and that persons interrogated in China regarding the Lai family’s activities had been ill-treated. It also issued the controversial ruling, now on appeal, that China’s assurances against torture did not have to be evaluated separately from its assurances against the death penalty.

The panel that made the decision to exclude the Lais from consideration for full refugee status did so based in part on assurances from the Chinese authorities that if returned, the Lais would not face the death penalty or torture; these assurances were assessed together and amounted to the following:

In accordance with…Article 199 of the Criminal Procedure Law of the People's Republic of China which stipulates that "death sentences shall be subject to approval by the Supreme People's Court," the appropriate criminal court will not sentence him [Lai] to death and even if it does, the verdict will not be approved by the Supreme People's Court, therefore, he will not be executed in any case if returned to China.

At the same time, China is a state party to the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. According to the provisions of the relevant Chinese laws, during the period of investigation and trial of Lai after his repatriation and, if convicted, during his term of imprisonment, Lai will not be subject to torture and other cruel, inhuman or degrading treatment or punishment.¹⁶¹

In February 2004, the federal court dismissed the Lais application for judicial review of their refugee status determination and certified a set of questions for consideration by the federal court of appeal. The questions included: “When does there need to be an assessment of a foreign state’s assurance to avoid torture of refugee claimants separate from its assessment not to impose the death penalty?”¹⁶²

The federal court concluded that since there was no persuasive evidence of torture or degrading treatment following return in cases similar to the Lais, the decision not to assess the assurances against torture separately was justified.¹⁶³  The Lais lawyers, however, argued that some of the persons interrogated by the Chinese authorities about the Lais were ill-treated and coerced into giving false information. They also argued that the Suresh case established that the sole criterion for the need for a separate assessment for assurances against torture is that the state “has engaged in illegal torture or allowed others to do so on its territory in the past.”¹⁶⁴ Because of the compelling nature of the evidence directly linked to the Lais and the general evidence that torture was routinely used to extract confessions in Chinese criminal proceedings, the court should have conducted a separate assessment of the Chinese government’s assurances against torture.

The Suresh 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.¹⁶⁵

The assurances against torture in the Lai case simply restate the government of China’s currently existing treaty obligations. They should be assessed in a separate and rigorous manner, taking into account the distinct differences between determining the credibility and reliability of assurances against the death penalty and assurances against criminal activities amounting to torture and ill-treatment.

The Federal Court of Appeal heard the Lai appeal on March 14-15, 2005 in Vancouver. At the time of writing, a decision on the appeal was pending.

Europe

Sweden

Update: Cases of Ahmed Agiza and Mohammed al-Zari

The December 2001 transfers of asylum seekers Ahmed Agiza and Mohammed al-Zari¹⁶⁶ from Sweden to Egypt aboard a U.S. government-leased airplane remain among the most controversial cases involving the use of diplomatic assurances by a European government.¹⁶⁷  The cases provide the clearest illustration to date of the inherently flawed nature of diplomatic assurances and of post-return monitoring mechanisms.

Sweden expelled Agiza and al-Zari, suspected of terrorist activities, following written assurances from the Egyptian authorities that they would not be subject to the death penalty, tortured or ill-treated, and would receive fair trials. Swedish and Egyptian authorities also agreed on a post-return monitoring mechanism involving visits to the men in prison. The men had no opportunity under Swedish law to challenge the legality of their expulsions or the reliability of the Egyptian assurances.

Agiza and al-Zari were held incommunicado for five weeks after their return. Despite monthly visits thereafter by Swedish diplomats, none of them in private, both men credibly alleged to their lawyers and family members—and, indeed, to Swedish diplomats as well (see below)—that they had been tortured and ill-treated in detention.¹⁶⁸ Agiza remains in prison to date after a patently unfair retrial in April 2004. Al-Zari was released without charge or trial in October 2003, remains under surveillance by Egyptian security forces, and reports regularly to the police. He is not permitted to speak with journalists or human rights groups.

When Human Rights Watch last reported on the cases in April 2004, many of the details of the men’s transfers were still unknown. In May 2004, a Swedish television news program, Kalla Fakta, revealed that the two men were apprehended and physically assaulted by Swedish police; handed over to the custody of hooded U.S. operatives at Bromma airport who cut off the men’s clothing and blindfolded, hooded, diapered, and drugged them; and then transported aboard a U.S. government-leased Gulfstream jet to Cairo.¹⁶⁹  The involvement of the U.S. in the men’s transfers has since been confirmed by the Swedish government.¹⁷⁰

Call for International Investigation into the Men’s Transfers

In the aftermath of these revelations, the Swedish government called for an “international inquiry” into the men’s treatment. According to Laila Freivalds, Swedish Minister of Foreign Affairs, the Swedish government “has requested the Egyptian government that a thorough and independent inquiry, including international experts, is carried out regarding these allegations.”¹⁷¹ To date, the Egyptian authorities have denied the men’s allegations and refused to commence an investigation. Inquiries from Human Rights Watch regarding the men’s treatment and Egypt’s obligation under the Convention against Torture to commence an investigation into their torture allegations have gone unanswered.¹⁷² The Swedish government has denied all responsibility for having abdicated on its nonrefoulement obligation and for putting the men directly in harm’s way.

In May 2004, Human Rights Watch called for an international inquiry under the auspices of the U.N. High Commissioner for Human Rights (OHCHR) in order to “ensure…the necessary independence, expertise, and transparency.”¹⁷³  The involvement of the three governments in the men’s transfers raised serious concerns that only an international inquiry could get to the root of all three states’ actions, including, but not limited to, the men’s allegations of torture and ill-treatment. The Swedish government has said that it would cooperate with such an inquiry, but in a letter to Human Rights Watch conditioned such cooperation on Egypt’s participation and the approval of both men.¹⁷⁴ In December 2004, however, Foreign Minister Laila Freivalds stated that “The Swedish government would welcome further efforts by the U.N. system to investigate the matter and stands ready to fully cooperate in such endeavors.”¹⁷⁵

Torture Despite Assurances

Despite Egypt’s well-documented record of systematic torture and failure to comply with its legally-binding international human rights treaty obligations, the Swedish government continues to assert that “[t]here were no substantial grounds for believing that they [Agiza and al-Zari] would be subjected to torture.”¹⁷⁶ The government points to both the written assurances and the fact that Egypt subsequently agreed to post-return monitoring as evidence to support that belief. In this case, however, the inherent lack of reliability of assurances from Egypt, the general nature of the assurances themselves,¹⁷⁷ and the inadequate post-return monitoring mechanism are all indicative of the fact that the practice of reliance upon diplomatic assurances threatens the international ban on torture, including the nonrefoulement obligation.

Moreover, there is credible, and in some instances overwhelming, evidence that the assurances were breached. A confidential government memorandum detailing the first visit by Swedish diplomats with Agiza and al-Zari included information from the men that they had been brutalized by the Swedish police, blindfolded during interrogations in Cairo, placed in very small cells, denied necessary medication, beaten by prison guards on the way to and from interrogations, and threatened by interrogators with repression against family members if a confession was not forthcoming.¹⁷⁸ This passage was omitted from the censored version of the monitoring report that the government made available to the public, but the men’s lawyers eventually were able to access the uncensored version.¹⁷⁹ Agiza and al-Zari have made serious allegations of torture, including electric shock, to family members and their Egyptian and Swedish lawyers.¹⁸⁰ In a December 2004 radio interview, Carl Henrik Ehrenkrona, chief legal adviser to the Swedish Ministry of Foreign Affairs, claimed that one reason for not communicating the men’s torture allegations to the Egyptian authorities was to protect them from the Egyptian police (see text box.)¹⁸¹

The Swedish authorities claim that they have made twenty-five visits to the men.¹⁸² They fail to note: that no visit was made until five weeks after the men were returned, during which time the men were held incommunicado; that no prison visits were conducted in private; and that advance notification to the prison authorities was required.  The authorities also fail to acknowledge that the men have claimed that they were threatened with retribution if they complained about mistreatment. The inherent weaknesses of monitoring under such conditions are apparent (see Limits of Post-Return Monitoring section above).

Unfair Trial Despite Assurances

The assurances of fair trial were likewise violated. In April 2004, Ahmed Agiza, convicted in absentia in Egypt in 1999, was retried in a military court, despite the fact that internationally-recognized procedural guarantees are significantly abridged in such tribunals. A trial monitor from Human Rights Watch attended all four of the trial’s hearings. Swedish government representatives were denied access to the first two hearings.

Human Rights Watch documented a catalogue of fair trial violations in the course of Agiza’s retrial, including the rights to a speedy trial and to a trial by a competent, independent and impartial tribunal. ¹⁸³  The trial also violated Agiza’s right to defend himself, including by adequate access to counsel and with adequate time and facilities to prepare the defense, his right to call and examine witnesses, and his right to appeal the verdict to an independent tribunal. Egyptian authorities relied upon secret evidence, which was not made available to Agiza’s lawyers. Defense lawyers were not permitted adequate access to the case file, nor were they granted sufficient time to obtain documents and prepare materials critical to the defense. The defendant was not permitted sufficient time to consult with his lawyers, and was sometimes granted consultations of only ten to fifteen minutes immediately before commencement of a hearing. The court also refused the defense’s request to allow witnesses to give testimony to counter the government’s charges.

Although Agiza testified in the military court proceedings that he had been tortured in prison, the court permitted Agiza to be examined only by a prison doctor. The prison doctor’s report indicated that Agiza had sustained physical injuries while in prison, but the court denied the defense’s request for a forensic examination to establish how such injuries occurred and failed to commence an investigation into the torture allegations.
 
Agiza also testified in court that after having filed a formal complaint about the torture he suffered in Mazra`t Tora prison, he was transferred to another prison, Abu Za’bal, where he was put in “punitive isolation.” He spent a total of forty-six days in Abu Za’bal before being transferred back to Mazra`t Tora. At the April 20 military court hearing, Agiza told his defense lawyers that an officer of the Egyptian security forces (mabahith) warned him after his hearing on April 13 not to mention his torture or ill-treatment again in court.

Agiza was convicted and sentenced to twenty-five years in prison for membership in an organization whose aim is to overthrow the Egyptian government by violent means. His was the first-ever retrial in Egypt of a person convicted in absentia by a military court. Agiza does not have the right to challenge the decision, and only Egypt’s President, Hosni Mubarak, can overturn the military court verdict. His sentence was subsequently reduced to fifteen years, apparently upon the intervention of the Swedish authorities.

One Swedish official told a Human Rights Watch representative that trials in military courts in Egypt can be fair.¹⁸⁴ This claim is all the more disturbing given the fact that the Swedish government itself has criticized military tribunals for violating procedural rights.¹⁸⁵ In a radio interview in December 2004, Swedish Prime Minister Göran Persson erroneously concluded that Agiza’s trial “evidently was reliable” because al-Zari had been released by the same body. When reminded that al-Zari had never even been to trial, but was released in October 2003, Persson apologized.¹⁸⁶

Sweden’s Responsibility

The Swedish government continues to claim that if there were any breaches of the assurances, responsibility lies solely with Egypt.¹⁸⁷ This claim ignores Sweden’s absolute obligation not to return a person to a place where he or she would be at risk of torture or ill-treatment. In a telling interview on March 4, 2005, Hans Dahlgren, Sweden’s State Secretary for Foreign Affairs stated:

Actually, we don’t really know whether these guarantees have been adhered to by the Egyptian government. As you know, there have been accusations that they were broken. First of all, that both men have been subject to maltreatment, of the kind that would not be permissible under the guarantees that were given. However, the government of Egypt itself denies these allegations quite strongly.¹⁸⁸

Dahlgren's admission of uncertainty is a stark reminder that diplomatic assurances are inherently unreliable and ineffective safeguards against torture and ill-treatment. In order to prove that no risk of torture or ill-treatment obtains, the Swedish authorities must be able to state with absolute confidence that the diplomatic assurances have been honored. Apparently, the Swedish authorities cannot do so.¹⁸⁹

A report released on March 22, 2005, by the Swedish Parliamentary Ombudsman, Mats Melin, leveled unusually harsh criticism at Swedish authorities for conducting an illegal operation in the course of expelling Agiza and al-Zari.¹⁹⁰ The report confirmed the presence at Bromma Airport of U.S. officials and operatives, some “in disguise.”¹⁹¹ It faulted the Swedish Security service and airport police for “display[ing] a remarkable subordinance to the American officials”¹⁹² and “losing control of the situation”¹⁹³ thus relinquishing their responsibility to ensure that the men were treated in compliance with Swedish law and Sweden’s obligations under the European Convention on Human Rights (ECHR).¹⁹⁴ The Ombudsman concluded that the men’s treatment was inhumane and thus may indicate a violation of ECHR article 3.¹⁹⁵ Despite these findings of illegal criminal activity, the Ombudsman has not called for the prosecutions of the Swedish security service and police personnel involved in the illegal operation or possible violations of the ban on cruel, inhuman or degrading treatment or punishment.¹⁹⁶

A separate investigation by the Committee on the Constitution regarding whether or not the expulsion operation violated Swedish constitutional law is currently underway.¹⁹⁷

In May 2005, the Committee against Torture is scheduled to decide Agiza’s application in which he claims that Sweden violated Convention against Torture article 3 by sending him back to Egypt and risk of torture.

Human Rights Watch reiterates its call for an independent, international investigation of the actions of all three governments involved under the auspices of the U.N. High Commissioner for Human Rights.

United Kingdom

Foreign Nationals Formerly Subjected to Indefinite Detention without Charge

The issue of diplomatic assurances has also arisen in the context of the United Kingdom's attempts to develop alternatives to the indefinite detention of foreign nationals suspected of terrorism-related activity. Britain’s highest court, the Law Lords, ruled in December 2004 that the indefinite detention without charge or trial of foreigners suspected of terrorism was incompatible with the U.K.’s Human Rights Act and the European Convention on Human Rights.¹⁹⁸

As a result of the Lords ruling, the U.K. government announced a “twin track” set of alternatives to indefinite detention, ¹⁹⁹ including recourse to “control orders” limiting the movement and activities of any person, foreigner or national, who is suspected of terrorist-related activities, and the use of diplomatic assurances to deport to their home countries foreign nationals who would be at risk of torture or ill-treatment upon return. The remaining foreign nationals in indefinite detention were released in March 2005, and immediately subject to control orders under the Prevention of Terrorism Act 2005.²⁰⁰

In its written submission to the Law Lords in the indefinite detention case, the government claimed that it had been “exploring the possibility of removing foreign nationals to states where there are fears of Article 3 treatment [sic]…with a view to establishing memoranda of understanding which could provide sufficient safeguards to allow return.”²⁰¹ Charles Clarke, U.K. Home Secretary, made specific reference to the government’s on-going efforts to secure diplomatic assurances against torture when he announced the government’s plans to replace indefinite detention to the House of Commons:

[Regarding] deportation with assurances. As the House knows, we have been trying for some time to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking memorandums of understanding with their countries of origin. We are currently focusing our attention on certain key middle-eastern and north African countries. I am determined to progress this with energy. My noble friend [Foreign Office Minister] Baroness Symons of Vernham visited the region last week. She had positive discussions with a number of countries, on which we are now seeking to build.²⁰²  

In late February 2005, it was reported that Baroness Symons had traveled to Algeria, Morocco, and Tunisia to negotiate agreements for the return of terrorist suspects from the U.K. to those countries.²⁰³ The U.K. government acknowledges that the men formerly held in indefinite detention would be at risk of torture if they were to be returned to their countries of origin.²⁰⁴ In addition to their individual risk, the men come from countries where torture is a serious endemic problem. In some countries—Egypt, for example—torture is systematic. In other countries—Algeria, Morocco, and Jordan—persons suspected of terrorist activity or labeled as such are specifically targeted for abusive treatment, including torture. All of the countries routinely violate their international human rights obligations.

The process by which the U.K. will go about seeking and securing diplomatic assurances, and what procedural guarantees persons subject to return based on assurances will enjoy, remains unclear. In November 2004, the U.N. Committee against Torture expressed its concern at “the State party’s [U.K.] reported use of diplomatic assurances in the ‘refoulement’ context in circumstances where its minimum standards for such assurances, including effective post-return monitoring arrangements and appropriate due process guarantees followed [sic], are not wholly clear…”²⁰⁵ The Committee requested that within one year, the U.K. provide it “with details on how many cases of extradition or removal subject to receipt of diplomatic assurances or guarantees have occurred since 11 September 2001, what the State party’s minimum contents are for such assurances or guarantees and what measures of subsequent monitoring it has undertaken in such cases.”²⁰⁶

The government of the U.K. has openly acknowledged that all the men formerly subjected to indefinite detention are at risk of torture upon return. That admission led to the men’s detentions in the first place; the U.K. authorities knew they could not derogate from the U.K.’s nonrefoulement obligation—and nothing has changed since then. Most of the governments in the detainees’ home countries have a long history of practicing torture and there is a significant risk that the men will be tortured if they are returned, whatever promises their home governments may offer.²⁰⁷ 

Case of Hani El Sayed Sabaei Youssef and Others

The U.K. government first proposed the use of assurances to deport suspected terrorists at risk of torture in their home countries in a February 2004 Home Office consultation paper. The paper claimed that the purpose of diplomatic assurances, termed “framework agreements,” is “to protect the deportees’ human rights following departure from the U.K.”²⁰⁸ Closer inspection of the U.K.’s record of seeking and securing assurances for returns to risk of torture, however, indicates that a detainee’s safety post-return has not been a primary consideration. The July 2004 case of Hani Youssef v. Home Office offers an account of the sheer determination of the Prime Minister to send Mr. Youssef and three others to Egypt, despite clear evidence that their transfers, assurances included, would violate the U.K.’s nonrefoulement obligation.²⁰⁹

The High Court decision of July 2004 held that Mr. Youssef had been unlawfully detained after it was clear to the authorities that there was no possibility to return him to Egypt in conformity with the U.K.’s nonrefoulement obligation. The ruling revealed numerous disturbing details regarding the British government’s attempts throughout 1999 to deport the men, all asylum seekers determined to have had a well-founded fear of persecution should they be returned to Egypt.²¹⁰ The men were suspected of membership in al-Jihad al-Islamiya and involvement in terrorism-related activities. Most alarming was the repeated insistence of Prime Minister Tony Blair that diplomatic assurances against the torture of Mr. Youssef that might be sought from Egypt should be taken at face value based simply on Egypt’s accession to the Convention against Torture and the fact that torture was prohibited under Egyptian law. Blair advocated that an entire package of assurances be narrowed down to one—a simple promise by the Egyptians not to torture the men upon return.²¹¹

Prime Minister Blair’s eagerness to accept such guarantees—which, in the end, the Egyptian authorities refused to offer—was remarkable not only because of Egypt’s proven record of systematic torture, but also because legal advisors in the Home Office (Interior Ministry) and Foreign and Commonwealth Office (FCO) repeatedly advised the Prime Minister that seeking and accepting such guarantees would clearly violate the U.K.’s obligations under article 3 of the European Convention on Human Rights. In a February 1999 memo, the Home Office warned that “there are a number of factors which suggest that assurances [from Cairo] would do little or nothing to diminish the Article 3 risk:”

The main problem is that the Egyptian authorities’ record in the treatment of political opponents is, by any standards not good…In particular as you will see, abuse and torture are widespread despite the prohibition by the constitution of infliction of physical harm upon those arrested or detained. My first question therefore is whether in the face of this evidence, the Home Secretary might reasonably conclude that assurances from the Egyptians could be sufficiently authoritative and credible to diminish the Article 3 risk sufficiently to make removal to Egypt a realistic option.²¹²

Despite this early and correct assessment (and continuing reservations by the Home Office about the dubious legality of deporting the men), the Prime Minister personally intervened on numerous occasions throughout 1999 (for example, in April, May and June) in an attempt to have the Home Office secure assurances from the Egyptian authorities. In a letter dated April 19, 1999, the Prime Minister’s Private Secretary wrote: “In general, the Prime Minister’s priority is to see these four Islamic Jihad members returned to Egypt. We should do everything possible to achieve it.”²¹³

The Youssef judgment includes details regarding negotiations with the Egyptian authorities, including that the Egyptians refused a number of assurances originally proposed by the U.K. to ensure respect for the men’s right to be free from torture, and to have a fair trial and full procedural rights. In the midst of the exchanges, the Prime Minister’s private secretary wrote that, “He [the Prime Minister] believes that we should use whatever assurances the Egyptians are willing to offer, to build a case to initiate the deportation procedure and to take our chance in the courts.”²¹⁴ 

The inherent weaknesses of post-return monitoring notwithstanding (see section above), the Prime Minister was even willing to forgo a weak assurance that the men’s safety would be monitored after return: “There is no obvious reason why British officials need to have access to Egyptian nationals held in prison in Egypt, or why the four should have access to a UK-based lawyer. Can we not narrow down the list of assurances we require?”²¹⁵

In the end, the Egyptian authorities refused to permit Mr. Youssef and the other men access to British officials once returned or to U.K.-based lawyers. The Foreign and Commonwealth Office (FCO) reported:

In the FCO’s view there was no alternative to access by British officials. The ICRC had a permanent presence there but had been refused access to prisoners; it would not visit particular prisoners without a general agreement allowing it access to all prisoners and would not get involved in any process which could in any way be perceived to contribute to, facilitate, or result in the deportation of individuals to Egypt.²¹⁶

The Youssef case illustrates an alarming disregard for the U.K.’s international and regional treaty obligations when seeking to remove from its territory foreign nationals suspected of terrorism. It depicts the very “end run” around the nonrefoulement obligation that Human Rights Watch has warned against in its reporting on diplomatic assurances. Prime Minister Blair’s imperative to “get them back” signals a single-minded purpose: to remove the men at whatever cost, including threats to their fundamental human rights.²¹⁷ Securing the men’s most fundamental human rights was not the purpose of attempts to secure diplomatic assurances. The assurances were simply a way of gaining “cover” should the government be questioned about violating the absolute ban on torture and refoulement.²¹⁸

In the end, Hani Yousef and the three other men were not deported because the Egyptian authorities were unwilling to proffer the assurances, not because the U.K. government was unwilling to accept such inherently unreliable assurances.

The Netherlands

Case of Nuriye Kesbir

Diplomatic assurances from Turkey were the subject of a court decision in The Netherlands in January 2005. An appeals court there ruled on January 20, 2005 against the extradition of a woman who was an official of the Kurdish Workers’ Party (PKK, now known as Kongra-Gel). The court concluded that diplomatic assurances could not guarantee that she would not be tortured or ill-treated upon return to Turkey.

Nuriye Kesbir, a PKK official and minority Yezidi Kurd, was subject to an extradition warrant from Turkey alleging that she had committed war crimes as a PKK military operative during the time she fought in the civil war in Turkey’s southeast. In May 2004, a Dutch court determined that although her fears of torture and unfair trial in Turkey were not completely unfounded, there were insufficient grounds to halt the extradition. The court gave exclusive authority to the government to either grant or reject the extradition request, but advised the Dutch Minister of Justice to seek enhanced diplomatic assurances against torture and unfair trial from Turkey.²¹⁹ 

Turkey’s Record of Abuse

Numerous human rights bodies, including the U.N. Special Rapporteur on Torture,²²⁰ intervened with the Dutch government on behalf of Kesbir. In three separate letters to the Dutch Minister of Justice, Human Rights Watch argued that torture in Turkey continues, affecting PKK detainees in particular; the Turkish authorities had not developed and implemented effective supervisory mechanisms to ensure that law enforcement officers on the ground—police, in particular—were observing recent legal reforms; and that as a woman, Kesbir would be at increased risk of torture and ill-treatment in the form of sexual violence.²²¹ Human Rights Watch also argued that any assurances from Turkey allegedly guaranteeing Kesbir’s safety could not be trusted:

[T]orture and ill-treatment persist in Turkey—especially in cases where a detainee has been labeled a suspected terrorist—despite some recent improvements in law and practice. Torture continues as a result of Turkey’s negligence in supervising and monitoring compliance with legal safeguards to prevent torture; indeed, such monitoring systems are either moribund or do not exist at all. As a result, Turkish authorities do not maintain effective control over those persons—police, gendarmes, and security forces—primarily responsible for on-going acts of torture in Turkey. Diplomatic assurances from Turkish officials that Ms. Kesbir would not be tortured or ill-treated could not be relied upon because the authorities offering such guarantees have not developed systems that actually control and hold accountable those forces that perpetrate such abuses.

Continuing irregularities in the system, such as denial of lawyers’ access to detainees, failure to inform detainees’ families of detentions, and problems with accessing and authenticating medical reports indicate a lack of transparency that undermines the reliability of any assurances that a person will not be tortured or ill-treated…In the face of such irregularities and continuing governmental passivity, diplomatic assurances from the Turkish authorities that Ms. Kesbir would not be tortured would be inherently unreliable.²²²

Turkey’s Assurances

In response to the May court decision, the Dutch authorities sought and received an additional letter of guarantee from the Turkish authorities stating that: “[T]here should be no question as to Turkey’s adherence to its obligations emanating from the international  instruments that she is party to on issues that the Supreme Court has expressed its sensitivity.”²²³ Apparently not satisfied with this response, the Dutch authorities requested an explicit confirmation that the rights deriving from Turkey’s human rights obligations be guaranteed in the specific case of Ms. Kesbir.²²⁴ In a terse reply, the Turkish authorities complained that the Dutch authorities’ request for additional guarantees specific to Ms. Kesbir were “rather redundant and unnecessary,” but that “there should not be any doubt that she will receive a fair trial under the guarantee of the ECHR and enjoy the full rights emanating from the said Convention.”²²⁵

On September 7, 2004, the Dutch Minister of Justice decided to order Kesbir’s extradition based on the assurances. Kesbir immediately appealed and requested the Dutch Minister of Justice to justify the extradition decision in light of human rights concerns, including the reliability of Turkey’s assurances against torture and unfair trial. On November 8, 2004, a Dutch court halted Kesbir’s extradition. The court concluded that, despite some reforms, Turkey continued to breach human rights, and that the Dutch authorities should not have accepted as sufficient the general assurances offered by the Turkish authorities.

The Dutch government appealed, producing one additional assurance from the Turkish authorities stating that “Ms. Kesbir will be brought before the Turkish Court without delay in accordance with relevant laws and have the unimpeded right of access to her lawyers when extradited to Turkey.”²²⁶ Human Rights Watch wrote in a December 2004 letter to Piet Hen Donna, Dutch Minister of Justice:

[The assurances from Turkey] are so vague as to render them virtually meaningless. They merely paraphrase what is clearly provided for in existing Turkish law. The promise to facilitate Ms. Kesbir’s appearance before a judge [upon return] has little or no bearing on what treatment she will receive at the hands of law enforcement officers once she is in detention, particularly given the absence of supervision of these officers for acts or torture and ill-treatment.²²⁷

High Court Halts Extradition: Assurances not Sufficient

On January 20, 2005, the Dutch high court concluded that “torture in Turkey is not a thing of the past” and that Kesbir, as a woman and prominent PKK member, could not be extradited because she would be at increased risk of torture during her detention in Turkey.²²⁸ Regarding the general assurances from Turkey, the court held:

[I]n view of the real risks that she [Kesbir] runs, there can only be a question of adequate assurances if concrete guarantees are given that the Turkish authorities will ensure that during her detention and trial, [Kesbir] will not be tortured or exposed to other humiliating practices by police officers, prison staff or other officials within the judicial system. None of the aforementioned assurances meets this requirement. These assurances imply no more than that [Kesbir] will be treated in accordance with the applicable human rights conventions and Turkish law. So not only do these assurances add nothing to the situation that would have prevailed without them…but they do not offer any solace for the above-mentioned problem that these laws and conventions apparently are not enforced at all times and in every respect.²²⁹

Nuriye Kesbir was released from custody on January 20, 2005. The Dutch government, however, appealed the High Court ruling halting her extradition to the Dutch Supreme Court (Hoge Raad). At the time of writing, Kesbir’s asylum process had been suspended pending the outcome of the Supreme Court appeal.

The Kesbir decision comes at an important time in the history of Turkish-European Union (E.U.) relations. Turkey periodically seeks the extradition of Kurdish political activists, former PKK operatives and officials, and Islamic militants in exile in Europe.²³⁰ Governments of member states—particularly those in favor of Turkey’s accession to the E.U.—inclined toward honoring these extradition requests must take into consideration the continuing use of torture and ill-treatment against Kurds and PKK members, and the individual circumstances of any person subject to return to Turkey.²³¹ In doing so, E.U. member states must comply with their absolute obligation not to send any person, no matter what their past crimes or current status, to a country where she or he would still face a risk of torture and ill-treatment.

Austria

Case of Akhmed A.

The acceptance of general assurances of protection against torture was also an issue in the case of Akhmed A., a citizen from Russia’s southern republic of Dagestan, extradited in February 2004 from Austria to Russia.²³² The case also raises the troubling issue of the nexus between extradition and asylum as A. was extradited while his asylum claim in Austria was still pending.

Akhmed A. applied for asylum in Austria in February 2001, claiming that he would suffer persecution if returned. The claim was based on his ethnic origin (Kumücke) and prior ill-treatment suffered in detention in Moscow in 1995 based on accusations that he had assisted Chechen rebels while working for the police in Dagestan near the Chechen border.²³³  His first claim was denied in June 2001, but A. lodged an appeal with the Independent Federal Asylum Review Board. In May 2003, while that appeal was still pending, Austrian authorities detained A. based on a Russian extradition request to face charges of abducting members of the Russian military and illegal weapons possession.²³⁴ 

During the extradition proceedings, a Vienna court acknowledged that A. was at risk of torture and ill-treatment if returned to Russia, but held that the risk was mitigated because the Russian authorities gave diplomatic assurances that he would be fairly treated.²³⁵ According to Amnesty International, the assurances were included in a letter from the Procurator General to the Austrian Ministry of Justice and stated simply:

We affirm that according to the norms of international law, all the rights required to present a defense will be available to Mr. A.; and he will not be subjected to torture, cruel, inhuman or degrading treatment or punishment (Article 3 ECHR and equivalent conventions of the United Nations, the Council of Europe and amending protocols).²³⁶

The court ordered that A.’s extradition could commence. His lawyers lodged an urgent appeal with the European Court of Human Rights, requesting that the court communicate an order for interim measures enjoining the Austrian authorities from extraditing A. until the court had an opportunity to review his application. Without explanation, the European Court declined to communicate a request for interim measures and A. was extradited to Russia on February 24, 2004.

A. is currently in detention in Dagestan. Amnesty International has expressed concern regarding inadequate monitoring of A. post-return.²³⁷ The International Committee of the Red Cross has made one visit to A. in detention, but due to its confidentiality policy, cannot reveal its findings.²³⁸ Thus, there is no independent, transparent mechanism to ensure that the Russian authorities are complying with the general assurances they proffered.

The fact that A.’s appeal on his asylum claim was still pending at the time of his extradition is a troubling feature of this case. According to Austrian asylum law, expulsion and deportation are not permitted during any stage of a pending asylum procedure. The Austrian Ministry of Justice, however, has determined that since the law does not expressly include the word “extradition,” transfers resulting from an extradition procedure in the course of an asylum procedure are permissible. This interpretation runs contrary to the United nations High Commissioner for Refugees’ (UNHCR) conclusion that “in general, a refugee claim must be determined in a final decision before execution of any extradition order.”²³⁹  Otherwise, the extraditing state runs the risk of breaching the nonrefoulement obligation. As one analyst has emphasized:

Where an extradition request concerns an asylum seeker, the requested state will not be in a position to establish whether extradition is lawful unless the question of refugee status is clarified. The determination of whether or not the person concerned has a well-founded fear of persecution must therefore precede the decision on extradition. This does not of itself require the suspension of the extradition procedure. It does mean, however, that the decision on extradition should be made after the final determination on refugee status, even if extradition and asylum procedures are conducted in parallel.²⁴⁰

Certainly, once a person has been recognized as a refugee, extradition can be refused on the grounds that it would breach the nonrefoulement obligation (to which the only narrow exception in the Refugee Convention is article 33(2)). Furthermore, the absolute prohibition against the risk of torture remains a crucial ground for denial of an extradition request.

In A.’s case, the Austrian authorities relied on two ineffective and inadequate devices to circumvent their nonrefoulement obligation under international refugee and human rights law. First, in the course of the extradition proceedings, the Austrian court accepted woefully inadequate assurances from the Russian authorities as an alleged safeguard against A.’s risk of torture. The diplomatic assurances proffered by the Russian Procurator General simply reiterated Russia’s existing legal obligations, which A. claimed the Russian authorities violated the first time they detained and ill-treated him. The Russian assurances thus cannot be considered an effective safeguard against torture and ill-treatment.

Second, the Austrian authorities determined that A.’s asylum procedure was not an impediment to extradition. This closed off yet another avenue for A. to have his claims of fear of persecution, including risk or torture and ill-treatment, fully considered in Austria. In the end, A. was extradited to Russia without a full and fair asylum determination proceeding, in violation of his right to seek asylum—and on the basis of inadequate diplomatic assurances in violation of his right not to be sent back to a place where he would be at risk of torture or ill-treatment.

Turkey

Update: Mamatkulov and Askarov v. Turkey

In February 2005, the European Court of Human Rights’ Grand Chamber issued a decision in the case of Mamatkulov and Askarov v. Turkey.²⁴¹ The two men were extradited from Turkey to Uzbekistan in 1999 based on assurances against torture and unfair trial from the Uzbek authorities. The men were transferred to Uzbekistan despite a request to the Turkish authorities from the European Court of Human Rights to delay the extraditions until the court had an opportunity to review the men’s applications. The men’s applications to the court alleged, among other things, that Turkey violated the ban on refoulement under article 3.

It was anticipated that the Grand Chamber might rule on the reliability and/or sufficiency of diplomatic assurances against torture from the government of Uzbekistan,²⁴² but the court determined that it did not have sufficient information before it to rule that article 3 of the ECHR had been violated.²⁴³ The court did not engage in a discussion of the reliability or sufficiency of the assurances.

The decision was a landmark ruling, nonetheless, because it concluded that the European Court’s request to Turkey to delay the men’s extraditions was binding on Turkey. In the Mamatkulov case, the court determined that Turkey violated article 34, the right to individually petition the court, when its authorities ignored the court’s request to stay the extraditions to Uzbekistan of Mamatkulov and Askarov pending the court’s examination of their applications.