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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 5th 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.


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.



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.

The exchange below between an interviewer from Swedish Radio’s Ekot program and Carl Henrik Ehrenkrona, chief legal adviser to the Swedish Ministry of Foreign Affairs, is instructive. The interviewer begins by asking Ehrenkrona about the allegations of mistreatment put forward by Ahmed Agiza to Swedish authorities at the first monitoring visit in January 2002. It appears that the Swedish authorities had fears that if they communicated allegations of mistreatment to United Nations bodies, including the Committee against Torture, they would put the men at even greater risk and possibly damage diplomatic relations with the Egyptians. The original Swedish is included for verification purposes against the English translation (E is for Ehrenkrona, I is for Interviewer):

[Rättschef Carl Henrik Ehrenkrona förklarar hur tankegångarna gick.
Director-General for Legal Affairs Carl Henrik Ehrenkrona explains what the train of thought was.]

E: Om man sprider den typen av uppgifter så bedömdes det att de också kunna skada honom själv och dessutom skada förhållandet till Egypten. Det handlade helt enkelt om att Agiza fortfarande var under utredning och om det då spreds obekräftade uppgifter om att han skulle ha sagt att han hade blivit torterad eller utsatt för omänsklig behandling så kunde det vara negativt för honom själv.
E: It was thought that if one spreads information of this kind then it might not only cause damage to him but in addition cause damage to the relationship with Egypt. It was quite simply about Agiza still being under investigation and that if unconfirmed information about him having said that he had been tortured or exposed to inhuman treatment was spread, then it could be negative for him.

I: Varför skulle det vara negativt för honom själv?
I: Why would it be negative for him?

E: Därför att man kunde inte veta hur det skulle hanteras av den egyptiska polisen.
E: Because one could not know how this would be handled by the Egyptian police.

I: Varför inte då?
I: Why is that?

E: Det kunde man inte veta i den situationen. Det finns alltid en risk och och det fanns ingen anledning att utsätta en person för den risken.
E: One could not know in that situation. There is always a risk and there was no reason to expose a person to that risk. "

I: Men Sverige hade ju fått en garanti om att han inte skulle torteras?
I: But Sweden had received guarantees that he would not be tortured?

E: Sekretessregeln är en sak och den säger att när det gäller uppgifter om utlänningar som kan vara till skada för dem, så får sådana uppgifter inte lämnas ut, det är huvudregeln i sekretesslagen.
E: The confidentiality rule is one thing and it says that when it concerns information about foreigners, that may be harmful to them, then such information must not be revealed, this is the main rule in the Secrecy Law.

I: Men ni hade ju fått garantier av Egypten att han inte skulle torteras. Trodde ni inte på de garantierna?
I: But you had received guarantees from Egypt that he would not be tortured. Did you not believe the guarantees?

E: Det handlar ju inte bara om att han kunde torteras. Det kunde ju vara till men för honom på annat sätt.
E: The matter was not only that he might be tortured. It could be damaging to him in other ways.

I: Så det var för att skydda honom mot de egyptiska myndigheterna som man inte skulle berätta att han hade berättat att han hade blivit torterad?
I: So it was to protect him against the Egyptian authorities that one should not reveal that he had said that he had been tortured?

E: Och för att dessutom inte riskera att komma i svårigheter med Egypten genom att sprida obekräftade uppgifter av det slaget.
E: And in addition not to risk getting into difficulties with Egypt by spreading unconfirmed information of such nature.

Sveriges Radio: Ekot Program, December 10, 2004, transcript on file with Human Rights Watch "

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.


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.


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.

[75] See, CBS 60 Minutes, “CIA Flying Suspects to Torture?” March 6, 2005 [online] (retrieved March 7, 2005); Douglas Jehl and David Johnson, “Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails,” New York Times, March 6, 2005 [online] (retrieved March 7, 2005); Channel 4 TV (U.K.), “Torture: The Dirty Business,” (Part 3 of series on the U.S. government’s war on terror and the implications for the global ban on torture), March 1, 2005, post-production transcript on file with Human Rights Watch, [online] (retrieved March 8, 2005); Jane Mayer, “Outsourcing Torture,” The New Yorker, February 7, 2005; Stephen Grey, “CIA Prisoners ‘Tortured’ in Arab Jails,” File on 4, BBC Radio, February 8, 2005 [online] (retrieved February 15, 2005); Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York: Harper-Collins), September 2004.

[76] The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) is the implementing legislation that codifies the U.S.’s obligations as a party to the Convention against Torture.  The legislation includes safeguards against transfer to a country where he or she is at risk of torture: “"It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” FARRA §1242(a). Section 2242 (Public Law 105-277; 8 U.S.C. 1231 note) All types of transfers are thus covered by this provision, including extra-territorial renditions. As noted below, the regulations implementing the FARRA include provisions for diplomatic assurances only in immigration cases.

[77] 8 C.F.R. § 208.18(c) - Diplomatic assurances against torture obtained by the Secretary of State.

(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country.

(2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention against Torture…

(3) Once assurances are provided under paragraph (c)(2) of this section, the alien's claim for protection under the Convention against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.

[78] 8 C.F.R. § 208.18(c)(3)

[79] The Department of Defense General Counsel’s Office has stated in the past that transfers within its purview, including the transfers of detainees from Guantánamo Bay back to their home countries or to third countries, only occur with assurances against torture. See letter from William J. Haynes II to Senator Patrick Leahy, June 25, 2003 [online] (retrieved March 25, 2005): “Should an individual be transferred to another country to be held on behalf of the United States, or should we otherwise deem it appropriate, United States policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country.”  See also letter from William J. Haynes II to Kenneth Roth, Executive Director of Human Rights, April 2, 2003 [online] (retrieved March 25, 2005): “If the war on terrorists of global reach requires transfer of detained enemy combatants to other countries for continued detention on our behalf, U.S. Government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured.”

[80] United States District Court for the District of Columbia, Mahmoad Abdah, et al. v. George W. Bush, Civil Action No. 04-CV-1254 (HHK), March 1, 2005.

[81] United States District Court for the District of Columbia, Mahmoad Abdah, et al. v. George W. Bush, Civil Action No. 04-CV-1254 (HHK), Respondents’ Memorandum in Opposition to Petitioners’ Motion for Order Requiring Advance Notice of any Repatriations or Transfers from Guantanamo, March 8, 2005, p. 4, copy on file with Human Rights Watch.  This memorandum draws heavily from two affidavits appended to it: one from Pierre-Richard Prosper, U.S. Ambassador-at-Large for War Crimes, and Matthew C. Waxman, Deputy Assistant Secretary of Defense for Detainee Affairs in the U.S. Department of Defense. The ultimate approval for transfer of any Guantánamo detainee to the control of another government is made by a senior Department of Defense official, in consultation with the State Department and various other agencies. According to Prosper’s affidavit, he has played a key role in maintaining diplomatic dialogue, including negotiating diplomatic assurances, with foreign governments whose nationals are detained at Guantánamo Bay. Copies of affidavits on file with Human Rights Watch.

[82] Mahmoad Abdah, et al. v. George W. Bush, et al., Respondents’ Memorandum in Opposition to Petitioners’ Motion for Order Requiring Advance Notice of any Repatriations or Transfers from Guantanamo, p.4-6.  The issue of seeking assurances against torture before transferring detainees back to their home countries has also arisen in the case of a group of Uighurs currently detained at Guantánamo Bay. The U.S. government had stated publicly that it would not send the Uighurs back to China, where they are at risk of torture.  See Amnesty International, “USA: ‘Double Jeopardy’ for Some Guantánamo Detainees,” September 30, 2004 [Closing an urgent action on behalf of Uighurs in detention at Guantánamo Bay after United States Secretary of State Colin Powell said that ethnic Uighurs in military custody at Guantánamo will not be sent back to China] [online] action-eng (retrieved March 13, 2005).  On March 16, 2005, however, it was reported that a senior administration official stated that because European governments had refused to take the Uighurs for resettlement, the U.S. may be “forced to reconsider sending them back to China.”  The official stated that the Uighurs would be repatriated only upon receipt of “iron-clad” guarantees that they would not be tortured. Demetri Sevastopulo, “Uighurs Face Return to China from Guantanamo,” Financial Times, March 16, 2005. See also Human Rights Watch Press Release, “U.S.: Don’t Send Detainees Back to China,” November 26, 2003 [online] (retrieved March 13, 2005).

[83]Mahmoad Abdah, et al. v. George W. Bush, et al., Respondents’ Memorandum, pp. 15-16.

[84] Mahmoad Abdah, et al. v. George W. Bush, et al., Temporary Restraining Order, Civil Action No. 04-1254 (HHK) (RMC), March 12, 2005, copy on file with Human Rights Watch. See also, Siobhan McDonough, “Judge Blocks Transfer from Cuba of 13 Yemeni Detainees,” Associated Press, March 14, 2005, p. A15.

[85] See, Douglas Jehl, “Pentagon Seeks to Shift Inmates from Cuba Base,” New York Times, March 11, 2005, p. 1.

[86] Mahmoad Abdah, et al. v. George W. Bush, et al., Temporary Restraining Order (Quoting from Petitioners’ Ex Parte Motion for Temporary Restraining Order to Prevent Respondents from Removing Petitioners from Guantanamo until Petitioners’ Motion for Preliminary Injunction is Decided), p. 2.

[87] Mahmoad Abdah, et al. v. George W. Bush, et al., Temporary Restraining Order, p. 9

[88]Mahmoad Abdah, et al., v. George W. Bush, et al., Memorandum Opinion, Civil Action No. 04-1254 (HHK), March 29, 2005. See also “U.S. Judge Bars Transfer of 13 Guantanamo Detainees,” Reuters, March 29, 2005.

[89] Mahmoad Abdah, et al., v. George W. Bush, et al., Memorandum Opinion, p. 9.

[90] Ibid., p. 11, fn 5.

[91] Ibid., p. 11

[92] “Freed Pakistanis Jailed at Home,” Associated Press, March 29, 2005.

[93] See, “Empty Promises”, pp. 16-17.

[94] Letter from Terry A. Breese, director, Office of Canadian Affairs, U.S. Department of State, to Stephen Rickard, Human Rights Executive Directors Working Group, in response to human rights groups’ concerns about the reliability of assurances from the Syrian government, November 26, 2003. Copy on file with Human Rights Watch.  Human Rights Watch is a member of the Working Group. The letter stated: “Your letter notes the Secretary’s…statement regarding assurances that detainees will not be tortured. Attorney General Ashcroft has publicly stated that the United States Government received appropriate assurances from Syrian officials prior to Mr. Arar’s deportation.”

[95] Maher Arar’s complete statement to media, CanWest News Service, November 4, 2003.  See also, CBS News, “His Year in Hell,” January 21, 2004 [online] (retrieved February 22, 2005).

[96] See United States Department of State Country Reports on Human Rights Practices for 2001: Syria published on March 4, 2002 [online] (retrieved March 29, 2005). Maher Arar was transferred to Syria in September 2002 and this report would have been an indicator at that time of Syria’s torture practices. The report stated that “torture methods include administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyperextending the spine; and using a chair that bends backwards to asphyxiate the victim or fracture the victim's spine. In September [2001] Amnesty International published a report claiming that authorities at Tadmur Prison regularly torture prisoners, or force prisoners to torture one another. Although torture occurs in prisons, torture is most likely to occur while detainees are being held at one of the many detention centers run by the various security services throughout the country, and particularly while the authorities are attempting to extract a confession or information regarding an alleged crime or alleged accomplices…There have been reports that security personnel force prisoners to watch relatives being tortured in order to extract confessions.” Subsequent Country Reports of 2002-2005 state that torture is an on-going serious human rights problem in Syria. For example, the 2005 State Department Country Reports on Human Rights Practices stated that torture in Syria is frequent and a common occurrence and documents the same torture methods as the 2001 report. It also states that “[t]orture was most likely to occur while detainees were being held at one of the many detention centers run by the various security services throughout the country, particularly while the authorities were attempting to extract a confession or information.”  See United States Department of State Country Reports on Human Rights Practices for 2004: Syria, published on February 28, 2005 [online] (retrieved March 1, 2005). 

[97] Remarks by the President George W. Bush on the Occasion of the 20th Anniversary of the National Endowment for Democracy, November 6, 2003 [online] (retrieved March 25, 2005).

[98] President George W. Bush, 2005 State of the Union Address, February 2, 2005 [online] (retrieved February 22, 2005).

[99] Bob Herbert, “Our Friends, the Torturers,” New York Times, February 18, 2005 [online] (retrieved February 22, 2005).

[100] Shannon McCaffrey, “Canadian Sent to Syria Prison Disputes U.S. Claims against Torture,” Knight Ridder, July 28, 2004 [online] (retrieved March 1, 2005).  See also Dana Priest, “Man was Deported after Syrian Assurances,” Washington Post, November 20, 2003, page A24: “Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible.” 

[101] The full text of the Arar complaint can be found [online] (retrieved February 22, 2005).

[102] The privilege is not enshrined in any one U.S. law, but arises from a series of precedents involving national security concerns. See Andrew Zajac, “Bush Wielding Secrecy Privilege to End Suits: National Security Cited against Challenges to Anti-Terror Tactics,” Chicago Tribune, March 3, 2005, p. 1: “The use of the state secrets privilege, critics say, is part of President Bush’s forceful expansion of presidential secrecy, including…curtailment of information on individuals rounded up in the war on terrorism.” 

[103] Arar v. Ashcroft, Declarations of James B. Comey, Acting Attorney General (January 18, 2005) and Tom Ridge, Secretary of the U.S. Department of Homeland Security (January 17, 2005), C.A. No. 04-CV-249-DGT-VVP [online] (retrieved February 21, 2005). According to the Department of Justice web site, “The state secrets privilege is well-established in federal law. It has been recognized by U.S. courts as far back as the 19th century, and allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations. In the past, this privilege has been applied many times to protect our nation’s secrets from disclosure, and to require dismissal of cases when other litigation mechanisms would be inadequate. It is an absolute privilege that renders the information unavailable in litigation” [online] (retrieved March 1, 2005).

[104] Arar v. Ashcroft,, Declarations of Comey and Ridge, p.4, paras. 5-6.

[105] Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar [online] (retrieved February 21, 2005). The Canadian inquiry has been riddled with delays and other problems. Few of the hearings have taken place in public. For national security reasons, the Canadian government has requested in-camera hearings and heavily redacted summaries of such hearings for public disclosure, giving rise to the criticism that the inquiry is not in fact a public one. See, for example, Commission of Inquiry Press Release, “Commission of Inquiry Blocked from Full Release of Documents; Government Raises New National Security Objections; Commissioner is Concerned that Public is being Denied Information in Arar Case,” December 20, 2004 [online] (retrieved February 22, 2005).

[106] Letter from William H. Taft, IV, Legal Adviser to the U.S. Secretary of State, to Paul Cavalluzzo, Lead Commission Counsel, Maher Arar Commission of Inquiry, September 16, 2004, copy on file with Human Rights Watch.

[107] Letter from Clark Kent Ervin, DHS Inspector General, to Hon. John Conyers, January 9, 2004, copy on file with Human Rights Watch.

[108] Testimony of the Director of Central Intelligence Porter J. Goss before the Senate Select Committee on Intelligence, “Global Intelligence Challenges 2005: Meeting Long-Term Challenges with a Long-Term Strategy,” February 16, 2005 [online] (retrieved March 9, 2005)

[109] Tracy Wilkinson and Bob Drogin, “Missing Imam’s Trail Said to Lead from Italy to CIA; Prosecutors in Milan are Investigating Whether an Egyptian-born Suspected Militant was Spirited Away by the U.S. Using a Disputed Tactic,” Los Angeles Times, A-1, March 3, 2005. See also, Douglas Jehl and David Johnston, “Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails,” New York Times, March 6, 2005.

[110] Mark Sherman, “Gonzales: No Guarantee Captives aren’t Tortured,” Associated Press, March 8, 2005.

[111] Editorial, “Torture by Proxy,” New York Times, March 8, 2005. See also Editorial, “Torture by Proxy,” Los Angeles Times, March 11, 2005, p. B-12: “The CIA says with a straight face that it gets those assurances before delivering suspects to jailers in Egypt, Syria, Saudi Arabia, Jordan and Pakistan—countries that have such abysmal human rights records that promises of decent treatment are a joke.” See also Dana Priest, “CIA’s Assurances on Transferred Suspects Doubted; Prisoners Say Countries Break No-Torture Pledges,” Washington Post, March 17, 2005, p. A1.

[112] The 2004 U.S. Department of State Country Reports on Human Practices documents the following types of torture at the hands of the Uzbek authorities: suffocation, electric shock, rape and sexual abuse, beatings. The country report also referenced a February 2003 report by the U.N. Special Rapporteur on Torture, which concluded that torture or similar ill-treatment was systematic. See Report of the Special Rapporteur on Torture, Mission to Uzbekistan, E/CN.4/2003/68/add.2, February 3, 2003 [online] (retrieved March 19, 2005).

[113] Press Conference by the President, March 16, 2005 [online] (retrieved March 19, 2005).

[114] Ibid.

[115] Mark Sherman, “Gonzales: U.S. Won’t Send Detainees to Torturers; Attorney General Alberto Gonzales Said the United States does not Send Detainees to Nations Allowing Torture, but Once They are Transferred, Can’t Ensure Good Treatment,” Miami Herald, March 8, 2005, p. 7: “Gonzales said the State Department and the CIA obtain assurances that people will be humanely treated. In the case of countries with a history of abusing prisoners, the United States ‘would, I would think in most cases, look for additional assurances that that conduct won’t be repeated’.” Ibid.

[116] The inability to challenge executive decisions regarding transfers to risk of torture based on diplomatic assurances has been played out in other fora as well. In October 2004, a majority of the twenty-five active judges in the Ninth Circuit Court of Appeals (San Francisco) voted to order a re-hearing of the Cornejo-Barreto case before an eleven-judge panel. A three-judge panel ruled previously in the case that federal judges had no authority to review an extradition proceeding for the possibility that an extraditee would be at risk of torture if returned to the country that issued the extradition warrant. That court ruled that authority to make such determinations regarding risk of torture lies exclusively with the secretary of state. Although the regulations that govern the implementation of the Convention against Torture in extradition cases contain no express provision for the use of diplomatic assurances against torture, such guarantees were a feature of this case and would presumably have been one of the aspects of the extradition proceeding that would have been reviewable for reliability and sufficiency if the appeals court had had an opportunity to rule that extradition proceedings can be challenged in federal court for compliance with the U.S.’s Convention against Torture obligations. See Cornejo-Barreto v. Siefert, 386 F.3d 938 (9th Cir., en banc, 2004).  The case became moot when the foreign government seeking Cornejo-Barreto’s extradition withdrew its request. See Cornejo-Barreto v. Siefert, 389 F3d 1307 (9th Cir. 2004).

[117] Association of the Bar of the City of New York and Center for Human Rights and Global Justice at NYU School of Law, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions,” October 2004, p. 89 [online] (retrieved March 9, 2005): “This obligation [to afford procedural guarantees] is grounded in Convention against Torture Article 3 (prohibiting torture and CID) and Article 2 (requiring state parties to implement judicial and administrative measures to prevent torture); and ICCPR Article 7 (prohibiting torture and CID) and Article 2(1) (interpreted by the Human Rights Committee as requiring state parties ‘to respect and to ensure’ ICCPR protections through prevention and provision of judicial or administrative review).” Ibid.

[118] Letter to members of the U.S. House of Representatives from Human Rights Watch, Amnesty International, Human Rights First, Physicians for Human Rights and other human rights groups asking members to oppose the offending provisions and have them struck from the bill, September 30, 2004, copy on file with Human Rights Watch.

[119] 9/11 Recommendations Implementation Act of 2004 (H.R. 10) [online] (retrieved April 6, 2005).

[120] Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, January 7, 2005 [online] (retrieved March 29, 2005).

[121] Press Release, “Markey Introduces Bill to Prevent Outsourcing of Torture,” February 17, 2005 [online] (retrieved February 23, 2005).

[122] Torture Outsourcing Prevention Act (H.R. 952), F:\M9\MARKEY_017.XML, Sec. 2(14) [online] (retrieved April 6, 2005).

[123] Ibid., Sec. 2(15).

[124] Ibid., p. 14.

[125] Ibid., pp. 12-13: The bill would require all U.S. agencies to promulgate regulations regarding “the process by which a person may raise and adjudicate in an independent judicial forum a claim that his or her transfer would be in violation of article 3 of the [Convention against Torture]…including the process by which the individual being transferred can challenge any diplomatic assurances received from the government to which the individual  would be returned that the individual would not be subjected to torture or ill-treatment.”

[126] Amendment to H.R. 1268, as Reported, Offered by Mr. Markey of Massachusetts, F:\M9\MARKEY_033.XML, March 15, 2005.

[127] Statement by Representative Edward J. Markey on Amendment to Stop Funds for the Outsourcing of Torture, March 15, 2005 [online] (retrieved March 19, 2005).

[128] See, Human Rights Watch Statement by Wendy Patten, U.S. Advocacy Director, at the March 10, 2005  “Rally to Stop Renditions” convened by Rep. Markey [online] (retrieved March 19, 2005). Human Rights Watch stated, “[W]e support efforts by the Congress, led by Rep. Markey in the House of Representatives, to put a stop to renditions to torture and, as part of that vital effort, to prevent the Bush administration from papering over its illegal conduct with diplomatic assurances from governments that torture."

[129] Convention against Torture Implementation Act 2005 (S. 645), O:\DAV\DAV05197.xml, March 17, 2005 [online] (retrieved March 25, 2005).

[130] Statement of Senator Patrick Leahy on the Convention against Torture Implementation Act, March 17, 2005 [online] (retrieved March 19, 2005)

[131] In the Matter of Ashraf al-Jailani, Executive Office for Immigration Review (EOIR), U.S. Immigration Court, York, Pennsylvania, File #A 73 369 984, December 17, 2004, p. 14, copy on file with Human Rights Watch.

[132] The decision references the U.S. Department of State Country Reports on Human Rights Practices, Amnesty International and Human Rights Watch reports, and an April 2003 report by the U.S. Bureau of Citizenship and Immigration Services (BCIS) detailing human rights violations against those suspected as Islamic militants or associated with terrorist activity.

[133] Al-Jailani, p. 11.

[134] Ibid., p. 12: “The Committee faults Yemen for invoking any justification for using torture, including its fight against terrorism and difficulties associated with this serious problem. Of particular interest to this court is the Committee’s concern that Yemen has failed to establish a comprehensive definition of torture, and faulted the government for the lack of transparency in its detention centers operated by its security forces.”

[135]Ibid., p. 14

[136] 8 C.F.R. § 208.18(c)(3)  - Diplomatic assurances against torture obtained by the Secretary of State.

[137] Immigration and Refugee Protection Act 2001 (IRPA), Division 9 (sections 76-87) [online] (retrieved March 2, 2005). The law does not expressly provide for the indefinite detention of foreign nationals suspected of posing a national security threat to Canada. The law permits the government to detain with the intention of deporting a suspect. A judge can release a suspect if a deportation cannot be effected within a reasonable time if the person does not pose a danger to national security. If a judge determines that a person would pose a threat to national security and deportation cannot be effected, then indefinite detention is a possibility given the loopholes in the law.

[138] See, Amnesty International Canada, “Take Action: Security Certificates, Time for Reform,” March 2005 [online] (retrieved March 31, 2005). See also Letter from Amnesty International Canada to Minister of Public Safety Anne McLellan, March 31, 2004, in which Amnesty criticized the use of security certificates and “urges Canada to adopt a response to security concerns that does not result in violations of such fundamental human rights as the protections against arbitrary detention and torture.” Copy on file with Human Rights Watch.

[139] Manickavasagam Suresh v. Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v. Canada), 2002, SCC 1. File No. 27790, January 11, 2002, para. 78 [online] (retrieved February 25, 2005). In the April 2004 “Empty Promises” report, Human Rights Watch did not highlight security certificate cases. The Suresh case was featured in that report for what the judgment said about diplomatic assurances, namely “Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.” Suresh was granted a new deportation hearing after the court concluded that his original hearing did not provide the procedural safeguards necessary to protect his right not to be deported to a place, in this case India, where he was at risk of torture, including the opportunity to challenge the validity of diplomatic assurances. See “Empty Promises,” pp. 18-19. 

[140] Suresh v. Canada, para. 78.

[141] The four men and their countries of origin are: Mohammad Mahjoub (Egypt); Mahmoud Jaballah (Egypt); Hassan Almrei (Syria); and Mohamed Harkat (Algeria). Mahjoub has been in prison since June 2000, Jaballah since August 2001, Almrei since October 2001, and Harkat since December 2002.

[142] In re Charkaoui, [2005] CF 248, DES-3-03, February 17, 2005. 

[143] The judge also noted that Charkaoui’s verbal agreement to abide by his bail conditions, coupled with numerous sworn statements from a variety of people from all walks of life who supported his release, gave the court an opportunity to evaluate its trust in him. Ibid.

[144] Opinion sur les risques avant renvoi, Adil Charkaoui, Dossier: 2948-DSC-40, ID: 3109 4479, Montreal, Quebec, August 21, 2003, copy on file with Human Rights Watch.

[145] Décision ERAR dans le dossier de M. Charkaoui, No. Dossier SSOBL: 3109 4479, Examen sécuritaire (RZTZ), Renseignement immigration, Agence des services frontaliers du Canada, Ottawa, Ontario, August 6, 2004, copy on file with Human Rights Watch. 

[146] Copies of letters on file with Human Rights Watch (originals in French).

[147] Charkaoui submitted evidence of such abuses from Human Rights Watch and Amnesty International, among other human rights groups.

[148] Human Rights Watch, Morocco: Human Rights at a Crossroads, October 2004 [online] (retrieved March 1, 2005).

[149] U.S. Department of State Country Report on Human Rights Practices 2004: Morocco, February 28, 2005 [online] (retrieved March 2, 2005).

[150] Décision ERAR dans le dossier de M. Charkaoui, p. 20: “Dans l‘éventualité où j’aurais sous-estimé le risque auquel M. Charkaoui est confronté, je suis convaincu qu’il répond au critère établi dans l’arrêt Suresh et que le danger extraordinaire qu’il constitue pour law sécurité du Canada l’emporte sur le risque qu’il court advenant son retour au Maroc. Par conséquent, on ne doit pas lui permittre de rester au Canada.”

[151] Letter from the Canadian Department of Justice to the Canadian Federal Court in the Matter of Adil Charkaoui, March 14, 2005, stating that a new risk assessment would be conducted and Charkaoui would have a new opportunity to make submissions to the Minister’s delegate regarding his risk of torture or ill-treatment if returned to Morocco.  Copy on file with Human Rights Watch. See also Sue Montgomery, “Canada Won’t Enforce Moroccan Arrest Warrant,” The Montreal Gazette, March 16, 2005, A2.

[152] Mahjoub v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 173, January 31, 2005 [online] (retrieved February 26, 2005).

[153] The delegate was appointed by the Minister of Citizenship and Immigration.

[154] Mahjoub v. Canada, para. 30.

[155] Ibid., para. 31.

[156] Ibid., para. 32.

[157] Ibid., para. 33.

[158] Section 115. [Principle of Non-Refoulement] (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Exceptions [to the Principle of Non-Refoulement] (2) Subsection (1) does not apply in the case of a person

(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or

(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

[online] (retrieved February 26, 2005).

[159] Mahjoub, para. 64.

[160] Lai v. Minister of Citizenship and Immigration (Lai v. Canada), Federal Court of Canada, IMM-3194-02, 2004 FC 179, February 3, 2004 [online] (retrieved February 26, 2005). The Lais were excluded from refugee status for the commission of serious non-political crimes outside the country of refuge prior to their admission to Canada.

[161] Lai v. Canada, February 2004, para. 46.

[162] Lai v. Canada, Public Memorandum of Fact and Law of the Appellants, Federal Court of Appeal, IMM-3194-02, Court No. A-191-04, July 26, 2004, copy on file with Human Rights Watch.

[163] Lai v. Canada, February 2004, para. 50.

[164] Ibid., para. 25.

[165] Ibid.,para. 124.

[166] For a discussion of the asylum and refugee protection dimension of the men’s cases see Brian Gorlick, “The Institution of Asylum after September 11,” in Mänskliga Rättigheter: från forskningens frontlinjer, Iustus Fölag, Uppsala, 2003, pp. 2-4.

[167] See, “Empty Promises”, pp. 33-36. The so-called “torture plane”—a Gulfstream jet—upon which the men were transferred to Egypt has been spotted in numerous European, Middle Eastern and Asian countries. According to press reports and the jet’s logs, which were acquired by journalists, the plane has also landed at Guantánamo Bay. See Dana Priest, “Jet is an Open Secret in Terror War,” Washington Post, p. A1, December 27, 2004; and John Crewdson, “Mysterious Jet Tied to Torture Flights: Is Shadowy Firm Front for CIA?” Chicago Tribune, January 8, 2005. 

[168] The visits occurred roughly on a monthly basis. According to the Swedish government, twenty-five visits took place between January 2002 and December 1, 2004. See Speech by Swedish Minister of Foreign Affairs Laila Freivalds (Freivalds Speech), “Security under the Rule of Law,” December 1, 2004, copy on file with Human Rights Watch.

[169] See, “The Broken Promise” (English Transcript), Kalla Fakta, Swedish TV4, May 17, 2004 [online] (retrieved March 3, 2005); “The Broken Promise, Part II” (English Transcript), May 24, 2004 [online] (retrieved March 3, 2005); “The Broken Promise, Part IV,” (English Transcript), November 22, 2004 [online] (retrieved April 1, 2005).

[170] The Swedish security police released two memorandums in late May 2004 confirming the U.S.’s involvement in the transfers and the fact that the Swedish Ministry of Foreign Affairs was aware of U.S. involvement. Copies of memoranda on file with Human Rights Watch. Journalist Seymour Hersh has argued that the men’s transfers were effected with the assistance of U.S. operatives in the Department of Defense-sponsored “special access program,” a program that conducts counter-terrorism operations outside the bounds of U.S. and international law. See, Hersh, Chain of Command, pp. 53-55.

[171] Freivalds Speech, December 1, 2004.

[172] Human Rights Watch letter to President Hosni Mubarak, July 26, 2004, copy on file with Human Rights Watch.

[173] Human Rights Watch Press Release, “Sweden: Torture Inquiry Must be under U.N. Auspices: Independent Panel must Probe Abuses by Sweden, Egypt, and U.S. Operatives,” May 27, 2004 [online] (retrieved March 3, 2005).

[174] Letter to Human Rights Watch from Hans Dahlgren, State Secretary for Foreign Affairs, September 20, 2004, copy on file with Human Rights Watch.

[175] Freivalds Speech, December 1, 2004.

[176] Ibid.

[177] In response to a December 12, 2001 letter from the Swedish government asking for assurances that the men would “not be subjected to inhuman treatment or punishment of any kind,” not subjected to the death penalty, and afforded fair trials, the Egyptian authorities responded:

We, herewith, assert our full understanding to all the items of this memoire, concerning the way of treatment upon repatriate [sic] from your government, with full respect to their persons and human rights. This will be done according to what the Egyptian constitution, and law stipulates.

Copies of letters on file with Human Rights Watch.

[178] Copy of memorandum on file with Human Rights Watch.

[179] Human Rights Watch did not obtain the memo from the men’s lawyers.

[180] Human Rights Center for the Assistance of Prisoners (Cairo), “Governmental Deportation: Egyptian Nationals as Islamic Activists,” April 1, 2003, p. 6. See also Swedish NGO Foundation for Human Rights and Swedish Helsinki Committee for Human Rights, “Alternative Report to ‘Comments by the Government of Sweden on the Concluding Observations of the Human Rights Committee’,” op. cit., fn 56, p. 25, para. 101.

[181] Sveriges (Swedish) Radio, Ekot Programme, December 10, 2004, copy of transcript on file with Human Rights Watch. See text box on p. 64.

[182] Freivalds Speech, December 1, 2004.

[183] Human Rights Watch Press Release, “Sweden Implicated in Egypt’s Abuse of Suspected Militant: Egypt Violated Diplomatic Promises of Fair Trial and No Torture for Terrorism Suspect,” May 5, 2004 [online] (retrieved March 3, 2005). All the details regarding the trial are from the Human Rights Watch monitor’s notes, originals on file with Human Rights Watch.

[184] In a June 2004 meeting with a representative of Human Rights Watch, one Swedish official from the Ministry of Foreign Affairs (MFA) claimed that “trials in military courts can be fair and trials in civilian courts can be unfair.” Notes on file with Human Rights Watch.

[185] The Swedish government’s own human rights reports have noted that special courts provide the Egyptian authorities with an opportunity to circumvent key rights provisions, including access to counsel and the right to appeal, that are provided in civilian courts. See Regeringskansliet Utrikesdepartementet, Mänskliga rättigheter i Egypten 2004, [Ministry of Foreign Affairs 2004 Report on Human Rights in Egypt], copy on file with Human Rights Watch.

[186] Swedish Radio, Ekot Program, December 25, 2004.

[187] Human Rights Watch meeting with MFA officials, June 2, 2004, noted on file with Human Rights Watch.

[188] BBC Radio 4, Today Programme, [What would it mean for terrorist suspects if the government did get its Prevention of Terrorism Bill through parliament?], March 4, 2005, at 8:30 [online] (retrieved March 18, 2005).

[189] In an unfortunate turn of events, the European Court of Human Rights ruled in October 2004 that Mohammed al-Zari’s application against Sweden (alleging, among other things, that Sweden violated its nonrefoulement obligation under article 3 of the European Convention on Human Rights) was inadmissible on a procedural technicality. The Court ruled that al-Zari had not submitted his application within a reasonable time after the alleged violation had occurred. The court did not rule on the substance of the alleged violation.

[190] Chefsjustitieombudsmannen Mats Melin, Avvisning till Egypten - en granskning av Säkerhetspolisens verkställighet av ett regeringsbeslut om avvisning av två egyptiska medborgare [Expulsion to Egypt: A review of the execution by the Security Police of a government decision to expel two Egyptian citizens], Reference Number: 2169-2004, March 22, 2005, copy on file with Human Rights Watch.

[191] Ibid., section 3.2.2

[192] Ibid.

[193] Ibid., section 3.3

[194] Ibid., section 3.2.2

[195] Ibid.

[196]Mattias Karen, “Security Police Broke Law Allowing Americans to Handle Extradition of Egyptians,” Associated Press, March 22, 2005.

[197] The Committee on the Constitution is investigating whether or not the government violated Swedish constitutional law. NGOs have not been invited to make formal presentations before the Committee on the Constitution. Members of the Swedish parliament from six parties have called for an international investigation under the auspices of the OHCHR, as well as a full and independent domestic inquiry. For information regarding the four fundamental laws that comprise Swedish constitutional law, see

[198] See, Human Rights Watch Press Release, “U.K.: Law Lords Rule Indefinite Detention Breaches Rights,” December 16, 2004 [online] (retrieved February 28, 2005). Human Rights Watch and numerous intergovernmental and nongovernmental organizations had roundly criticized the U.K. for the indefinite detention provisions of its 2001 Anti-Terrorism Crimes and Security Act (ATCSA), passed in the aftermath of the September 11 attacks on the United States. See Human Rights Watch Briefing Paper, “Neither Just nor Effective: Indefinite Detention without Trial in the United Kingdom under Part 4 of the Anti-Terrorism, Crime and Security Act 2001,” June 24, 2004 [online] (retrieved February 28, 2005).

[199] See, Hansard (House of Common Debates), “Measures to Combat Terrorism,” Statement of the Secretary of State for the Home Department (Mr. Charles Clarke), January 26, 2005, Column 307, [online] (retrieved February 28, 2005).

[200] For Human Rights Watch’s critique of these alternatives, see Human Rights Watch Briefing Paper, “Commentary on the Prevention of Terrorism Bill 2005,” March 1, 2005 [online] (retrieved March 2, 2005).

[201] A and Others v. Secretary of State for the Home Department, Case for the Secretary of State [submission to House of Lords], September 13, 2004, p. 10, footnote 2.

[202] Hansard (House of Common Debates), “Measures to Combat Terrorism,” Statement of the Secretary of State for the Home Department (Mr. Charles Clarke), January 26, 2005], Column 307.

[203] Nick Fielding, “Foreign Office in Talks to Deport Terror Suspects,” The Sunday Times (London), February 27, 2005, p. 8.

[204] All the men are subject to deportation orders in the U.K., and would have already been deported if it were not for the U.K.’s obligations under article 3 of the ECHR.

[205] See, Committee against Torture, “Conclusions and Recommendations: Fourth Periodic Report of the United Kingdom of Great Britain and Northern Ireland,” CAT/C/CR/33/3, December 10, 2004, section 4(d) [online] (retrieved March 2, 2005).

[206] Ibid., Section 5(i).

[207] Human Rights Watch Press Release, “U.K.: Promises on Torture Don’t Work,” [online] (retrieved February 28, 2005). See also, Human Rights Watch Briefing Paper, “Commentary on the Prevention of Terrorism Bill 2005,” pp. 9-11.

[208] Home Office Discussion Paper, “Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society,” para. 38, February 2004 [online] (retrieved February 28, 2005).

[209] Hani El Sayed Sabaei Youssef and The Home Office, Case No: HQ03X03052, 2004 EWHC 1884 (QB), July 30, 2004 [online] (retrieved February 28, 2005).  For an excellent summary of the Youssef case, see Migration News Sheet, (Brussels: Migration Policy Group), December 2004, at pp. 13-14.  See also, Statewatch, “U.K. Egyptian National ‘Unlawfully Detained’ after Intervention by Prime Minister,” August-October 2004 [online] (retrieved February 28, 2005).

[210] Ibid., para. 8: The men “submitted plausible claims of harassment and torture at the hands of the Egyptian authorities. In refusing their applications we acknowledge that theirs were cases where the Secretary of State might ordinarily have granted asylum.” [emphasis in original High Court decision]

[211] Ibid., para. 38: “The Prime Minister’s view is that we should now revert to the Egyptians to seek just one assurance, namely that the four individuals, if deported to Egypt, would not be subjected to torture. Given that torture is banned under Egyptian law, it should not be difficult for the Egyptians to give such an undertaking.”

[212] Ibid., para. 8.

[213] Ibid., para. 20.

[214] Ibid., para. 38.

[215] Ibid., para. 18.

[216]Ibid., para. 26.

[217] The Prime Minister wrote “Get them back” across one letter from the Home Office informing the U.K. of the Egyptian authorities’ negative response to on-going attempts to secure assurances. Ibid., para. 15.

[218] The case of Metin Kaplan, a radical Muslim cleric, is also instructive. Kaplan, labeled a threat to national security, was deported from Germany to Turkey in October 2004. In May 2003, however, a German court halted his extradition based on human rights concerns, including the insufficiency of diplomatic assurances against torture and unfair trial from the Turkish authorities. In response to the judgement, the German authorities vowed that they would find a way to remove Kaplan and sought enhanced assurances from the Turkish government. See “Empty Promises,” pp. 31-32. Kaplan lost a series of legal challenges to his subsequent deportation, but the German government justified Kaplan’s removal by claiming that it had secured written assurances from the Turkish Foreign and Justice Ministries that Kaplan would get a fair trial. See “German Interior Ministry: ‘Turkey Assured Us of Kaplan’s Fair Trial,’” Andalou Agency, October 13, 2004 and Richard Bernstein, “Germany Deports Radical Long Sought by Turks,” New York Times, October 13, 2004.  Kaplan was taken into custody immediately upon return to Turkey. His trial on terrorism-related charges commenced in Turkey in December 2004 but was adjourned the same month until April 2005.   

[219] Advies inzake N. Kesbir, Hoge Raad der Nederlanden, EXU 2002/518, 02853/02/U-IT, May 7, 2004, copy on file with Human Rights Watch.  The Turkish authorities had offered written assurances in February 2004, but the Supreme Court did not deem them sufficient. Letter from Consular Affairs Department, Legal Consular Affairs Division, Ministry of Foreign Affairs of the Netherlands to the Embassy of Turkey, Reference No. CJ/GJ-04/299, May 19, 2004, copy on file with Human Rights Watch.

[220] The Special Rapporteur on Torture sent an urgent and confidential communication calling on the Dutch authorities to secure “unequivocal guarantees,” including a plan for effective and adequate post-return monitoring in the event that Kesbir were to be extradited.

[221] See, Human Rights Watch Letters to Piet Heit Donner, Dutch Minister of Justice, in the matter of Nuriye Kesbir, dated May 24, 2004 [online] (retrieved March 18, 2005); October 28, 2004 [online] (retrieved March 18, 2005), and December 17, 2004 [online] (retrieved March 18, 2005).

[222]Human Rights Watch Letter to Piet Hein Donner, May 24, 2004.

[223] Letter from Embassy of Turkey to the Dutch Ministry of  Foreign Affairs, Reference No. 2004/Lahey BE/7356, May 25, 2004, copy on file with Human Rights Watch.

[224] Letter from Consular Affairs Department, Legal Consular Affairs Division, Ministry of Foreign Affairs of the Netherlands to the Embassy of Turkey, Reference No. CJ/CG-04/399, July 12, 2004, copy on file with Human Rights Watch.

[225] Letter from Embassy of Turkey to the Dutch Ministry of Foreign Affairs, Reference No. 184, July 26, 2004, copy on file with Human Rights Watch.

[226] Letter from Embassy of Turkey to the Dutch Ministry of Foreign Affairs, Reference No. 2004/Lahey BE/15949, November 18, 2004, copy on file with Human Rights Watch.

[227] Letter from Human Rights Watch to Piet Hein Donner, December 17, 2004.

[228] De Staat der Nederlanden (Ministerie van Justitie) tegen N. Kesbir, Het Gerechtshof’s Gravenhage, LJN: AS3366, 04/1595 KG, January 20,2005.

[229] Ibid., para. 4.4 (unofficial English translation on file with Human Rights Watch).

[230] See, for example, appeal on behalf of Remzi Kartal from Human Rights House, Oslo, Norway [online] (retrieved February 28, 2005). Kartal, an official of Kongra-Gel, was detained in Germany in January 2005 pending an extradition request from Turkey. Kartal was released from custody on March 1, 2005, after a court determined that the Turkish authorities had not produced documentation to support the extradition request. See BBC Monitoring Service (Europe), “Kurdish Activist Kartal Released from German Prison,” March 2, 2005 [Excerpt from report by German-based Kurdish newspaper Ozgur Politika based on report from Mesopotamia News Agency’s Tulay Balci, “Abandon Policies Indexed to Turkey” March 2, 2005]. 

[231] See footnote above regarding the case of Metin Kaplan, deported from Germany to Turkey in October 2004. In the aftermath of Kaplan’s deportation to Turkey for trial on terrorism-related charges, the Aksam newspaper hailed the transfer as “A great gesture from Germany to Turkey as it tries to enter the E.U.”  See Baris Atayman, “Turk Court Charges Cleric Extradited by Germany,” Reutuers, October 13, 2004.

[232] Akhmed A. remains in detention and there have been claims of torture and ill-treatment. In order to maintain some measure of confidentiality, Human Rights Watch uses his first name only as an identifier. 

[233] Human Rights Watch is grateful to Andrea Huber of Amnesty International Austria for her assistance with gathering information regarding the A. case. The factual information in this section, unless otherwise noted, comes from AI Austria’s dossier on the case.

[234] See, Amnesty International, “Europe and Central Asia: Summary of Concerns in the Region, January-June 2004,” September 1, 2004 [online] (retrieved February 28, 2005). See also, ITAR-TASS News Agency, “Russia Obtains Extradition from Austria of Soldiers’ Kidnapping Suspect,” February 24, 2004.

[235] The Vienna Higher Regional Court (Oberlandesgericht).

[236] Translation provided by Amnesty International Austria.

[237] Amnesty International, “Europe and Central Asia: Summary of Concerns in the Region, January-June 2004,” September 1, 2004.

[238] ICRC Letter [confirming A.’s registration with the organization and the one visit to him], July 23, 2004, copy on file with Human Rights Watch.

[239] United Nations High Commissioner for Refugees, “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” para. 102 [online] (retrieved March 2, 2005).

[240] Sibylle Kapferer, The Interface between Extradition and Asylum, Legal and Protection Policy Research Series, Department of International Protection, United Nations High Commissioner for Refugees, PPLA/2203/05, November 2003, para. 291 [online] (retrieved March 1, 2005).

[241] See, “Empty Promises”,  pp. 26-29.

[242] See Human Rights Watch and AIRE Center, Amicus Curiae Brief to the European Court of Human Rights in the Case of Mamatkulov and Askarov v. Turkey, January 28, 2004 [online] (retrieved March 13, 2005).

[243] European Court of Human Rights Judgment, Mamatkulov and Askarov v. Turkey, February 4, 2005 [online] (retrieved March 20, 2005).

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