publications

VI. Legal Obligations

International law prohibits the return of people to countries where they are at risk of torture or ill-treatment.

Specifically, the Convention against Torture forbids the transfer (“refoulement”) of a person to countries “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”80 The US government incorporated that principle in the Foreign Affairs Reform and Restructuring Act of 1998, which states in section 1242, “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.”81

Other international treaties to which the United States is party likewise prohibit transfer to risk of mistreatment. The ICCPR, ratified by the United States in 1992, states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”82 The UN Human Rights Committee in its general comment on this provision explained that “[s]tates parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”83 Human Rights Watch believes that returning a person to a place where he or she is likely to be subjected to prolonged arbitrary detention or imprisoned or otherwise punished after an unfair trial may amount to cruel or inhuman treatment.84

The Convention relating to the Status of Refugees and the 1967 Optional Protocol to it, both ratified by the US in 1968, prohibit the transfer of a person to a place where his life or freedom would be threatened on account of his race, religion, nationality, membership in a social group or public opinion, unless he is disqualified from persecution protection on serious criminal- or security-related grounds.85

The United States claims that these international treaty obligations do not apply to states on an extraterritorial basis and therefore do not bind the US in its treatment of the detainees at Guantanamo Bay. Human Rights Watch believes that the language and underlying aims of the human rights treaties require their extraterritorial application.86 The US has nonetheless adopted a policy of abiding by these obligations. In the words of Clint Williamson, ambassador-at-large for war crimes at the Department of State:

Of particular concern to the Department of State in making recommendations on transfers is the question of whether the foreign government concerned will treat the detainee humanely, in a manner consistent with its international obligations … [It is] the long-standing policy of the United States not to transfer a person to a country if it determines that it is more likely than not that the person will be tortured, or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds. This policy is consistent with the approach taken by the United States in implementing the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the Protocol relating to the Status of Refugees.”87

The US also claims that this policy goal can be achieved by obtaining diplomatic assurances from the receiving country as a means of protecting against torture, persecution or other abuse. But as the UN Committee against Torture has warned, the US government’s use of assurances is cause for concern:

The Committee is concerned by the State party’s use of “diplomatic assurances,” or other kinds of guarantees, assuring that a person will not be tortured if expelled, returned, transferred or extradited to another State. The Committee is also concerned by the secrecy of such procedures, including the absence of judicial scrutiny and the lack of monitoring mechanisms put in place to assess if the assurances have been honoured.88

The US has failed to take heed of the Committee against Torture’s concerns in dealing with the Guantanamo Bay detainees. It relies on diplomatic assurances from countries like Tunisia—a country for which the State Department lists “torture and abuse” as among the “significant human rights problems.”89 Post-return monitors operate in such secrecy that the US will not even say whether any representative of the US government has visited returned detainees. And most importantly, the US has failed to establish any judicial mechanism that can consider the merits of each individual transfer case, including review of any assurances secured from the country of return.

As Human Rights Watch’s research demonstrates, US policies and practices have failed to meet the stated goal of humane treatment in accordance with applicable international legal standards. Not only have both al-Hajji and Lagha been subjected to various forms of abuse and mistreatment since their return to Tunisia, they both now face trials in a judicial system that fails to comport with basic fair trial guarantees mandated by international law.




80 Convention against Torture, art. 3.

81 Foreign Affairs Reform and Restructuring Act of 1998, H.R. 1757, January 27, 1998, http://usinfo.state.gov/usa/infousa/laws/majorlaw/hr1757.pdf (accessed August 24, 2007), sec. 1242.

82 ICCPR, art. 7.

83 UN Human Rights Committee, General Comment no. 20, para. 9.

84 See European Court of Human Rights, Soering v. United Kingdom, 1/1989/161/217, July 7, 1989, which states, “The Court considers that, like the risk of [deprivation of the right to life and torture and other cruel and inhuman treatment], the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned …. [T]he risk of a flagrant denial of justice must also be assessed in the light of the information available to the Court when it considers the case.”

85 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954, art. 33; and Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967.

86 See Human Rights Watch, “Submission to the Committee against Torture in Response to United States Positions Expressed During the Committee’s Consideration of the Second Periodic Report of the United States on May 5 and May 8, 2006,” http://hrw.org/us/hrw_response_051706.pdf, pp. 3-4; and see also Human Rights Watch, “Supplemental Submission to the Human Rights Committee During its Consideration of the Second and Third Periodic Reports of the United States,” June 2006, http://hrw.org/pub/2006/us063006_iccpr_submission.pdf, pp. 10-11.

87 Al-Harbi v. Gates, no. 07-1095 (D.C. Cir., filed June 8, 2007), Attachment A of the Government’s Opposition to Petitioners’ Motion for Thirty Days’ Advance Notice of Transfer, Declaration of Clint Williamson, executed June 8, 2007, para. 4.

88 UN Committee against Torture, “Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture, United States of America,” CAT/C/USA/CO/2, May 18, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/432/25/PDF/G0643225.pdf?OpenElement (accessed August 19, 2007), para. 21.

89 US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices – 2006: Tunisia,” March 6, 2007.