Not the Way Forward
The UK's Dangerous Reliance on Diplomatic Assurances
In recent years the British government has been trying to deport a number of terrorism and national security suspects to countries in which they face a real risk of torture and other ill-treatment. Because the international ban on torture is absolute and the transfer of any person to a risk of such abuse is therefore illegal, the British government has secured diplomatic assurances from the states to which it is trying to deport the persons that they will not be subjected to mistreatment once they are returned. These assurances, the government claims, are sufficient to reduce or even eliminate the risk of abuse.
Not only does the government of the United Kingdom promote the use of such assurances at home, it has also expended a great deal of time and energy at the regional and international levels attempting to legitimize the use of diplomatic assurances against torture. In recent years, British officials have engaged in vigorous lobbying at the European Union, the Council of Europe, and the United Nations to promote acceptance of diplomatic assurances as a counterterrorism tool.
But the fact is that these assurances do not work. In countries where torture is a serious problem, mere diplomatic promises are insufficient to prevent torture. No matter how detailed such agreements are, they cannot eliminate the very real riskfaced by people returned to countries that practice such clandestine, brutal abuse.
Because diplomatic assurances are unenforceable promises, a country that breaches them is unlikely to experience any serious consequences if the assurances are violated. In many instances, moreover, it is practically impossible to ascertain whether a breach has occurred. Because torture is carried out in secret, and victims often do not complain for fear of reprisals against them or their families, the practice is hard to investigate, and easy to deny. Notably, neither the sending state nor the receiving state has any incentive to carry out such investigations seriously. To do so might not only reveal human rights violations, but might complicate efforts to rely on assurances in the future.
These issues are central to two important appeals facing the House of Lords this month. In RB and U v. Secretary of State for the Home Department and Secretary of State for the Home Department v. OO (Othman) ï¿½cases that will be heard on October 22 and October 28, respectivelyï¿½the House of Lords will be examining the value of diplomatic assurances against torture in assessing whether terrorism suspects should be deported to their home states. The British government concedes that, butfor the assurances, the deportees would be at risk of torture; it is thus the effectiveness of the assurances that lies at the heart of the appeals.
The potential deportees in the RB and U case are Algerian, and the diplomatic assurances at issue in the case were negotiated individually, for each person. Omar Othman (a.k.a. Abu Qatada), the respondent in the Othman case, is a Jordanian national and radical Muslim cleric accused of ties to al-Qaeda. The assurances in his case come in the form of a broad "memorandum of understanding" between the United Kingdom and Jordan that purports to cover any Jordanian national deportedback to that country.
Notably, both cases involve countries in which the torture and other abuse of national security suspects have been well-documented.
If the two Algerians are returned to Algeria, they will most likely be detained by the notorious Department for Information and Security (DRS), whose operatives have been accused ofï¿½but never held accountable forï¿½abuses such as beatings, electric shock torture, suspending prisoners from the ceiling, and forcing them to ingest chemicals. If sent to Jordan, Othman would likely be handed over to the General Intelligence Department (GID), which has colluded with the US government in renditions to torture, obstructed access to prisons by the International Committee of the Red Cross, and been accused of committing serious abusesï¿½such as brutal beatings and threats of rapeï¿½with virtual impunity.
These two pending appeals represent the first time that the House of Lords has grappled with the issue of diplomatic assurances. In the Court of Appeal, the lower court that previously heard the two cases, the record has been mixed. The Court of Appeal ruled in favor of allowing the Algerians to be deported, but it barred 3 Human Rights Watch October 2008 Othman's return, concluding that evidence extracted under torture from others in GID custody would likely be used in Othman's trial in Jordan. In a related ruling, involving two alleged members of the Libyan Islamic Fighting Group, the Court of Appeal held in April 2008 that the men would be at risk of torture and of being denied a fair trial if returned to Libya.
The British courts are the last domestic bulwark against the grave violations that are likely to occur if people are sent back to abusive countries in reliance on assurances.
At the regional level, the European Court of Human Rights has stood firm againstassurances as sought by the UK and other governments: in a string of 2008 rulings concluding that diplomatic assurances are unreliable, the European Court dealt a hard blow to the UK government's persistent efforts to enshrine these agreements inlaw and practice. The Court ruled in key cases that the use of diplomatic assurances for returns to countries such as Tunisia, Uzbekistan, and Turkmenistan would signal a regression in rights protection.
While continuing to press its position in the courts, the UK government has also embarked on aggressive political lobbying efforts. The UK has asserted in various EU fora, for example, that diplomatic assurances, negotiated outside the multilateral human rights treaty framework, can provide an "effective way forward" for states seeking to expel persons who pose a threat to national security. And it has called any criticism of its diplomatic assurances policy "simply wrong," arguing that the policy is designed to comply with its human rights obligations, not to avoid them.
To date, the UK governmentï¿½s efforts have been relatively unsuccessful. Its reliance on diplomatic assurances has been criticized by the United Nations, rebuffed at the Council of Europe, and denounced within the British parliament. Opposition by numerous international actors and major defeats in the courts indicate that a critical mass of experts and authorities view the assurances negotiated by the UK government as an ineffective safeguard against torture.There are broader moral, political, and national security reasons to be concernedabout the UKï¿½s promotion of diplomatic assurances against torture.
The British government promotes itself as a leader in the global effort to eradicate torture, through actions such as its early ratification of the Optional Protocol to the United Nations Convention against Torture and its advocacy that other governments do the same. But the governmentï¿½s relentless campaign to see "deportation with assurances" accepted throughout Europe reflects a more ambivalent attitude toward torture. That ambivalence sends the wrong message at a time when torture protection has been under assault in many parts of the world.
The British governmentï¿½s "deportation with assurances" policy is also counterproductive at home. Since the July 2005 attacks on London, preventing radicalization and recruitment has been at the heart of the UK's counterterrorism strategy.Whatever the alleged benefit of counterterrorism measures like diplomatic assurances, in violating human rights in principle and practice it is clear they undermine the UKï¿½s moral legitimacy at home and abroad, damaging its ability to win the battle of ideas that is central to long-term success in combating terrorism.
To the Government of the United Kingdom
- Reaffirm the absolute nature of the obligation under international law not to expel, return, extradite, or otherwise transfer any person to a country or place where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment.
- Halt immediately all efforts to remove foreign terrorism and national security suspects at risk of torture and ill-treatment on return in reliance on "diplomatic assurances" from countries with established records of practicing such abuse, regardless of whether these unenforceable pledges are formalized in "memoranda of understanding."
- Drop immediately the efforts to have the Algerians and Jordanian whose cases are pending in the House of Lords deported to their home countries in reliance on assurances from their respective governments against torture andprohibited ill-treatment on return.
- Acknowledge publicly that counterterrorism measures that violate fundamental rightsï¿½such as measures that violate the ban on torture and returns to risk of tortureï¿½can alienate affected communities and hinder government efforts to stem radicalization and terrorist recruitment.
- Stop seeking to enshrine in international and regional law and practice the use of diplomatic assurances against torture and prohibited ill-treatment to facilitate the transfer of foreign terrorism suspects to places where they are atrisk of such abuse.
- Withdraw the intervention in the European Court of Human Rights case Ramzy v. Netherlands and halt all efforts to weaken the absolute ban on returns to risk of torture and prohibited ill-treatment.
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Not the Way Forward
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