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British Policy on Diplomatic Assurances

The British government’s use of diplomatic assurances dates back to the mid-1990s. But it was only after a landmark House of Lords ruling in December 2004—in which the court held that the indefinite detention of foreign terrorism suspects violated the UK’s international human rights obligations—that “deportation with assurances” became a central plank of the government’s counterterrorism strategy.¹

As part of this strategy, the government signed “memoranda of understanding” (MOUs) with Jordan, Libya, and Lebanon to permit the deportation with assurances of terrorism suspects based on promises from the home state of humane treatment upon return.² The government also sought to negotiate similar agreements with Algeria and other North African and Middle Eastern governments. All the governments in question have well documented records of torture and ill-treatment, particularly of persons suspected of involvement in terrorism or radical Islamism.

Notably, the Algerian government rejected these overtures, in particular the British government’s request for a post-return monitoring scheme of visits to Algerian returnees. The UK government explained Algeria’s refusal as the “sensitivity” of a post-colonial state to the suggestion that it needed outside surveillance of its behavior.³ In light of the failed effort to obtain an MOU, the British government then claimed that the Algerian Charter for Peace and National Reconciliation—adopted by a national referendum in 2005 and followed by an amnesty law in February 2006—would protect the deportees, making assurances and monitoring redundant.⁴

In the end, Algerian President Abdelaziz Bouteflika agreed, in a July 2006 “exchange of letters” and notes verbale with UK then-Prime Minister Tony Blair, to negotiations for diplomatic assurances of humane treatment and fair trial on a case-by-case basis.⁵ The Algerian government also agreed that the British Embassy could maintain contact with returned persons who were not detained, and with the next of kin of detainees.⁶

“Enhanced” Assurances or More of the Same?

Aware of documented cases in which persons sent home from other countries based on diplomatic assurances have been abused, UK officials emphasize that the assurances that the British government secures are “enhanced.” In particular, they claim that the UK MOUs offer added protection because they provide for post-return monitoring.⁷

In making this claim, however, the government has ignored some fundamental problems with monitoring isolated detainees: the fact that torture occurs in secret, often using techniques difficult to detect, including psychological abuse; the lack of confidentiality and the consequent risk of reprisals when complaining of abuse; and various documented forms of obstruction to access to individual detainees by monitors, despite agreements to the contrary.⁸ The International Committee of the Red Cross (ICRC) requires universal access to all places of detention in a country and all detainees held in those places, precisely to avoid such pitfalls.⁹

In addition to monitoring arrangements, the British government argues that the formal assurances it seeks can be distinguished from similar agreements brokered by other governments, some of which have resulted in breaches leading to torture.¹⁰ It claims to have learned a lesson, in particular, from the notorious case of Ahmed Agiza, an Egyptian national who was transferred from Sweden to Egypt in December 2001 in reliance on assurances of humane treatment, and who was then tortured in a Cairo prison.¹¹

According to the Foreign and Commonwealth Office, the assurances obtained by the British government are different. Their distinguishing features include: negotiations that occur at the “highest level,” between heads of state or government “to ensure buy-in” throughout the system; detailed discussions about why assurances are sought and what they mean in practice; placing the assurances “at the heart of the bilateral relationship” indicating “serious bilateral consequences” if a breach were to occur; and discussing in detail precisely what would happen to a person on return in terms of apprehension, detention, prosecution, and sentence to identify any “blind spots” that should be avoided or alleviated.¹²

Simply saying that these measures are distinct, however, does not make them so. Nearly every government that seeks assurances claims that it negotiates them at the highest levels, with state actors who are directly responsible for the operatives that might perpetrate acts of torture, taking into careful consideration what might happen on return.¹³ The Swedish government sent an emissary to Cairo in advance of Agiza’s expulsion who liaised with the embassy staff of other European and North American missions and with the Egyptian government itself. The assurances in that case were also in written form, guaranteeing humane treatment, no death penalty, and a fair retrial for Agiza, who had been previously tried in absentia.

Given that Swedish officials made numerous consular visits to Agiza in prison, the Agiza case also highlights the weakness of post-return monitoring. Although Agiza told visiting Swedish officials in January 2002 that he had been tortured, that information was blacked-out in an official Swedish monitoring report. In the aftermath of revelations of Agiza’s torture and Sweden’s cover up, the Swedes requested a full investigation by the Egyptians, which Egyptian officials in Cairo ignored completely. Requests by Sweden for a second retrial, after many violations of the right to fair trial had occurred during the first, similarly fell on deaf ears.¹⁴ Despite these serious problems, Swedish-Egyptian relations were apparently unaffected. Robert Hårdh, secretary of the Swedish Helsinki Committee, a Stockholm-based human rights organization, told Human Rights Watch that to his knowledge, “there have not been any negative diplomatic effects at all due to the Agiza affair.”¹⁵

In short, what is said to be unique about the UK’s “deportation with assurances” policy is in most key respects already common in terms of practice by other deporting states. It is consequently subject to many of the same deficiencies as assurances agreements that the British government recognizes have been ineffective.

The UK Court of Appeal ruled to that effect with respect to the MOU the British government signed with Libya in October 2005. In April 2008 the court blocked the deportation of two Libyans, known only as “DD” and “AS,” by upholding an April 2007 ruling by the Special Immigration Appeals Commission (SIAC)—the court that hears appeals against deportation on national security grounds—that the men would be at risk of torture and a “complete” denial of a fair trial if returned to Libya.¹⁶ The two were alleged to be members of the Libyan Islamic Fighting Group (LIFG), an armed opposition group whose aim is the overthrow of Libyan leader Muammar al-Qadhafi.

The Court of Appeal ruled that the SIAC did not err by determining that Colonel Qadhafi could not be relied upon to abide by his agreement with the British government to treat the men humanely. The SIAC had concluded that torture is “extensively used against political opponents among whom Islamist extremists and LIFG members are the most hated by the Libyan Government, the Security Organisations and above all by Colonel Qadhafi.” It also noted that the incommunicado detention of political opponents without trial, often for many years, “is a disfiguring feature of Libyan justice and punishment.”¹⁷ The British government did not appeal the ruling to the House of Lords and abandoned its plans to deport Libyan national security suspects back to Libya.

The government points to the Libyan cases as an example of how the courts provide a check on its diplomatic assurances policy, but the concerns raised by SIAC in the Libyan appeal arguably obtain with respect to Algeria and Jordan as well.