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Diplomatic Assurances

The U.S. rendition program hinges on the use of diplomatic assurances, or formal promises from receiving governments that they will not subject the transferred person to torture or ill-treatment. When questioned about the legality of its renditions to countries widely known to engage in torture – countries like Syria, Egypt or Uzbekistan – the Bush Administration justifies the transfers by pointing to the fact that it has received diplomatic assurances from the receiving government.⁸⁰  The U.S. government grounds its claim that it can render suspects to countries like Syria, Egypt and Uzbekistan without violating its legal obligations on the use of diplomatic assurances. It is the assurances that enable the United States to square the circle and to claim that these renditions do not violate the absolute prohibition on renditions to risk of torture.

When assurances are thoroughly analyzed, however, it is clear that they provide no justification for transferring suspects to countries that use torture. Because of their legal and practical failings, diplomatic assurances offer no safeguard against torture. Assurances therefore do not transform an illegal rendition into a lawful transfer of custody.

Origins of Assurances – Extraditions to the United States in Potential Death Penalty Cases

Obtaining diplomatic assurances prior to transferring custody of a criminal suspect is not a new phenomenon. Diplomatic assurances have been used in the death penalty context for many years. The U.N. Model Treaty on Extradition of 1990,⁸¹ for example, includes the death penalty as optional grounds for refusal to extradite, unless the state requesting extradition supplies sufficient assurances. The growing international trend to abolish the death penalty of the last few decades has led governments and international bodies to re-evaluate extradition practices where capital punishment is a possibility.⁸²  

Canada is a good example of the growing reticence to extradite suspects without proper safeguards against possible execution. As the use of the death penalty has become increasingly disfavored around the world, the need for assurances against it in order forCanada to extradite a criminal suspect has grown. According to the extradition treaty between the U.S. and Canada, which was ratified in 1976, the extraditing country may require assurances against the death penalty.⁸³  In two cases during the 1990’s, Re Ng Extradition and Kindler v. Canada, the Supreme Court of Canada held that seeking assurances against the death penalty was at the discretion of the administrative branch, and not constitutionally required in every case.⁸⁴ In 2001, however, the Canadian Supreme Court took a step forward in U.S. v. Burns, holding that “in the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required.”⁸⁵ Although the Burns decision remains problematic because it opened the door to an exception, the general rule that assurances are constitutionally required in death penalty cases was a significant advance since Kindler.

International bodies have also addressed this issue. The Human Rights Committee, which reviewed Canada’s extradition of Chitat Ng, found that Canada violated its obligations under the ICCPR by extraditing him to California without assurances against the death penalty.⁸⁶ At the time of Ng’s extradition, the sole method of execution in California was through gas asphyxiation. The Committee found that this method violates the prohibition on cruel, inhuman or degrading treatment or punishment under article 7 of the ICCPR.

The European Court of Human Rights (ECHR) has also addressed the question of assurances in extradition cases to countries that retain the death penalty. In 1989, the United Kingdom was about to extradite Jens Soering to the U.S. state of Virginia, despite the fact that it had not obtained assurances against Soering’s execution. The U.K. government had secured a commitment only that its view of the death penalty would be explained to the sentencing judge. Soering, a German national, applied to the ECHR for relief.⁸⁷   Article 3 of the European Convention Human Rights and Fundamental Freedoms⁸⁸ prohibits torture and inhuman or degrading treatment or punishment. Given the long wait on death row as well as Mr. Soering’s age and mental state at the time of the offense, the ECHR found that extradition “would expose him to a real risk of treatment going beyond the threshold set by Article 3”⁸⁹ of the European Convention.

Both the ECHR in Soering and the Human Rights Committee in the case of Ng found that the failure to secure assurances against the death penalty was in violation of the prohibition against ill-treatment, established in article 3 of the European Convention and article 7 of the ICCPR respectively.

Assurances against torture versus assurances against the death penalty

Assurances may provide an appropriate safeguard against the death penalty, but their use in the context of torture and ill-treatment is quite different. Regardless of one’s views about the death penalty⁹⁰ and the trend toward worldwide abolition, it is not per se a violation of international human rights law. Because capital punishment remains lawful in the United States, it is carried out publicly and only after the imposition of a death sentence at a public trial. A government that extradites or transfers a criminal suspect to U.S. custody on the basis of assurances against the death penalty would know whether the U.S. government or a state government had violated those assurances at the moment when it sought the death penalty at trial or when it scheduled the case for execution. A sending state could protest the violation of the assurances before the execution.

By contrast, ensuring compliance with assurances against torture is complicated and often ineffective. Torture and ill-treatment are illegal in all circumstances, and governments therefore attempt to hide their illegal conduct. Abusive governments that engage in torture are typically highly skilled at using torture methods that do not leave physical marks or indications. The secrecy and obfuscation that surround the use of torture make it impossible for sending governments to know whether the assurances have been violated – unless the victim survives, is freed, and finds safe haven in order to recount his or her experiences. For these reasons, diplomatic assurances may be appropriate in the context of extradition to states that retain the death penalty, but they do not protect against torture or ill-treatment.

Diplomatic Assurances in Rendition Cases

The United States is prohibited under both U.S. and international law from sending a person to a place where he or she is at risk of being tortured. Despite the absolute prohibition on such transfers, the U.S. government has sent numerous suspects to countries with well-documented records of torture and ill-treatment since September 11, 2001. Some of these renditions have been carried out within a legal framework, such as an immigration removal, while others have involved covert transfers carried out by the executive branch outside the law.

The U.S. justifies these transfers by claiming it seeks diplomatic assurances that the transferred person will be treated humanely and not be tortured.⁹¹  Diplomatic assurances are formal promises, either written or verbal, from the receiving government that it will not subject the transferred person to torture or ill-treatment. Obtained through diplomatic channels, the assurances are not legally binding, but are rather a set of “understandings” between the two governments. In some cases, the assurances include monitoring mechanisms, mainly allowing the sending country’s diplomats to visit the transferred person.⁹² 

While it is the stated policy of the United States to seek assurances against torture, provision for the use of assurances is expressly provided for only in immigration law.⁹³  The immigration regulations, as written, require that the Attorney General, in consultation with the Secretary of State, verify and assess the reliability of any assurances obtained by the U.S. government in an immigration case. Although the Attorney General’s responsibilities appear to have shifted to the Secretary of Homeland Security with the creation of the new department, the Attorney General would have made this assessment in Maher Arar’s case, which predates the creation of the new agency.⁹⁴ 

The reliability assessment required by the immigration regulations is completely discretionary and not subject to judicial review.⁹⁵ In extraordinary rendition cases, the State Department and Central Intelligence Agency (CIA) apparently are tasked with securing and evaluating assurances.⁹⁶  When detainees are released or transferred from Guantánamo Bay, the Department of Defense, in consultation with the State Department and other government agencies, assumes that responsibility.⁹⁷ In none of these processes does an individual subject to transfer have the ability to challenge the assurances.

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 in all instances. In addition, while it has been the traditional role of the courts to protect human rights, article 2242 of the FARRA of 1998 (and the implementing regulations where regulations exist) grant the courts only limited jurisdiction for securing the human right not to be sent to torture.⁹⁸

The 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, and particularly the lack of opportunity to challenge the credibility or reliability of diplomatic assurances before an independent judicial body. Moreover, there are indications that assurances are used to circumvent the obligation rather than fulfill it. As an American official quoted in the media said: “They say they are not abusing [rendered prisoners], and that satisfied the legal requirement, but we all know they do.”⁹⁹ 

Additionally, there are powerful arguments against the use of diplomatic assurances, both as a legal matter and in practical terms.

Legal Insufficiency

The nonrefoulement obligation is absolute,¹⁰⁰ meaning that if a risk of torture exists then transfer is prohibited, and the prohibition continues as long as the risk exists. As the Council of Europe Commissioner for Human Rights Alvaro Gil-Robles stated:

 “The weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”¹⁰¹

Diplomatic assurances are the linchpin in the U.S. policy of extralegal renditions and other transfers, since the assurances are the basis for the U.S. claim that the person is no longer at risk of torture. In the words of President Bush: “We operate within the law, and we send people to countries where they say they're not going to torture the people.”¹⁰² Attorney General Alberto Gonzales elaborated on this legal argument in written responses to questions from Senators during his confirmation process. He explained the Administration’s argument that assurances convert an illegal transfer into a lawful one:

In carrying out U.S. obligations under Article 3, as subject to the Senate understanding, it is permissible in appropriate circumstances to rely on assurances from a country that it will not engage in torture, and such assurances can provide a basis for concluding that a person is not likely to be tortured if returned to another country.¹⁰³     

However, diplomatic assurances are not legally binding. They have no legal effect and carry no accountability if breached. The person whom the assurances aim to protect has no recourse if the assurances are violated.  

Moreover, in the case of assurances from countries where the practice of torture is common, assurances are not only insufficient, but inherently unreliable. Diplomatic assurances are based solely on trust that the receiving state will honor its word. Yet governments in states where torture is a serious human rights problem almost always deny their abusive practices. If a government routinely violates its binding legal obligation not to engage in torture, then there is little reason to believe it will respect an unenforceable promise not to engage in the very same conduct with respect to one isolated case.

According to article 3(2) of the CAT, sending governments must take into account the “existence of a consistent pattern of gross, flagrant or mass violations of human rights” in determining whether a person faces a risk of torture. In his September 2004 report to the United Nations General Assembly, Theo van Boven, the outgoing special rapporteur on torture, expressed concern that reliance on assurances is a “practice that is increasingly undermining the principle of nonrefoulement.”¹⁰⁴ He questioned “whether the practice of resorting to assurances is not becoming a politically inspired substitute for the principle of nonrefoulement, which…is absolute and nonderogable.”¹⁰⁵ In his conclusions, the Special Rapporteur stated that, as a baseline, in circumstances where a person would be returned to a place where torture is systematic, “the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.”¹⁰⁶ He also noted that if a person is a member of a specific group that is routinely targeted and tortured, this factor must be taken into account with respect to the nonrefoulement obligation.¹⁰⁷ 

Neither U.S. policy nor the immigration regulations requires the executive branch to reject as inherently unreliable assurances from governments in countries where torture is a common 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 render or remove a person at high risk of torture or ill-treatment based on the simplest and vaguest of guarantees.

Indeed, all of the texts of diplomatic assurances collected by Human Rights Watch reiterate the receiving country’s existing treaty obligations as the basis for illustrating that they can be trusted not to torture a specific individual. Such promises from countries that already routinely flout and routinely deny violating these obligations are meaningless and cannot be relied upon in good faith.

Arar Case

Perhaps there is no better case to illustrate the fallacy of relying on diplomatic assurances to protect against torture than that of Maher Arar. Arar was transferred to the custody of Syria by the United States – by way of Jordan – despite Syria’s well-documented record of torture and other ill-treatment. The United States had itself repeatedly condemned the government of Syria for its use of torture and other human rights violations. Arar states that he had repeatedly expressed his fear of torture in Syria to U.S. authorities while in U.S. immigration detention immediately prior to his removal to Syria.¹⁰⁸ 

Notwithstanding the obvious risk of torture in his case, the Bush Administration transferred him to torture on the basis of assurances the CIA reportedly received from the Syrian government.¹⁰⁹  There can be no doubt that assurances from Syria are not trustworthy. The U.S. government’s reliance on Syrian assurances against torture is at best wishful thinking, and at worst they provide a fig leaf to conceal U.S. complicity in Arar’s detailed allegations of torture and ill-treatment at the hands of his Syrian jailers. U.S. officials themselves have not been able to explain the basis for trusting Syrian assurances against torture. When asked by a Washington Post reporter why, given Syria’s widely-known record of torture, they believed Syrian assurances to be credible, U.S. officials declined to comment.¹¹⁰  Their response speaks volumes. It is simply implausible to assume that a government that routinely violates its binding legal obligation not to use torture would respect an unenforceable promise not to engage in the very same conduct.    

 Practical Inadequacy

Practical considerations also demonstrate the fallacy of reliance on diplomatic assurances, showing them to be an ineffective safeguard that does not mitigate and certainly does not neutralize the risk of torture. Neither the sending nor the receiving government has an incentive to engage in serious post-return monitoring, which risks uncovering evidence of violations of their legal obligations. Attempting to secure protection of a fundamental right via diplomatic channels has inherent limitations due to the very nature of diplomacy. Even if a sending government sought to engage in serious post-return monitoring, torture is difficult to detect because governments that use torture are adept at hiding it. Moreover, the fear of reprisal would inhibit the detainee from revealing the torture to any diplomat or other person who speaks to them in prison.

Attorney General Alberto R. Gonzales acknowledged that the U.S. government has only a limited capacity to enforce assurances once a person is transferred to the custody of another government. In an interview on March 7, 2005, the Attorney General said: “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.”¹¹¹  Similarly, CIA Director Porter J. Goss told Congress, in a hearing of the Senate Select Committee on Intelligence on February 16, 2005, that “of course, once they're out of our control, there's only so much we can do.”¹¹² 

Post-return monitoring, which some countries add to the assurances, does little to mitigate the risk of torture. Monitoring does not guarantee that torture will be detected, given the secret nature of torture. The perpetrators are generally expert at keeping such abuses from being noticed, and exposing torture is often made harder by intimidation of the victims and their fear of reprisals, should they complain. As an ineffective tool to detect torture, monitoring is not a deterrent against the practice of torture. Moreover, even if torture is identified through monitoring, the sending states run the unacceptable risk of being able to identify a breach only after torture or ill-treatment has already occurred.

The governments involved in negotiating the assurances have little or no incentive to monitor for and highlight a breach of the assurances. In some cases, sending governments want the receiving state to use prohibited interrogation techniques against a person to extract information. In other cases, the sending state simply wants the receiving state to take responsibility for warehousing a suspect who is considered a national security threat in the sending state. Either way, a sending government that discovers a breach of the assurances would have to acknowledge a violation of its own nonrefoulement obligation. For its part, a receiving government that is engaging in torture obviously has little incentive to allow its human rights violations to be discovered through post-return monitoring.

Moreover, strict monitoring sends a message of mistrust to the receiving country. As the Egyptian ambassador to the United States, Nabil Fahmy, said “We wouldn't accept the premise that we would make a promise and violate it.”¹¹³  Since assurances are carried out through diplomatic channels, diplomats will very often privilege a good relationship between countries over other concerns, including the human right not to face torture. Inter-state dynamics at the diplomatic level are by their very nature delicate, and diplomats often invoke the need for “caution” and “discretion” in diplomatic representations and negotiations. As a result, serious human rights issues—even those involving the absolute prohibition against torture—are often subordinated to diplomatic concerns.

The former Swedish ambassador to Egypt, Sven Linder, waited five weeks before visiting two Egyptian nationals who were denied asylum in Sweden and were returned to Egypt based diplomatic assurances. The men allege that they were tortured during this five-week period following their transfer to Egypt and prior to the Swedish Ambassador’s first visit. The Ambassador explained that visiting the men earlier would have sent a signal that the Egyptians are not trusted.¹¹⁴  This illustrates that diplomacy is an inappropriate tool to ensure and enforce the absolute prohibition on torture.

There is also a profound lack of transparency in the process of seeking and securing assurances at a diplomatic level, often in the interest of preserving foreign relations, that puts the person subject to return at a serious disadvantage in terms of challenging the adequacy and reliability of the guarantees. For example, in an October 2001 statement, an Assistant U.S. Department of State legal adviser argued that seeking, securing, and monitoring diplomatic assurances in extradition cases must be done on a strictly confidential basis, with no public or judicial scrutiny, in order not to undermine foreign relations and to reach “acceptable accommodations” with the requesting state.¹¹⁵  With respect to diplomatic assurances against torture, diplomacy alone provides no guarantee against maltreatment.

The disincentives and practical difficulties of post-return monitoring demonstrate the flawed logic in U.S. rendition policy. In defending the transfer of terrorist suspects to countries that engage in torture, Defense Department General Counsel William Haynes stated that “We can assure you that the United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored.”¹¹⁶  This policy cannot withstand careful scrutiny. Haynes portrays a reactive process, asserting that the United States carries out renditions and then simply waits to hear if the person is being tortured, without explaining how the U.S. government would learn that promises from a government such as Syria or Egypt were not being honored.

Moreover, despite evidence of torture in several rendition cases, the Bush Administration has done little to investigate the violation of assurances. Only in the case of Maher Arar has the administration taken steps to look into a rendition case, and then only after Arar was released and returned home to Canada to recount his experiences in prison in Syria. This review, however, was initiated not by senior government officials in response to allegations of torture by Mr. Arar; rather, it was undertaken independently by the Inspector General of the Department of Homeland Security upon request by the ranking member of the Judiciary Committee of the U.S. House of Representatives.¹¹⁷  There is no indication that the U.S. government took any action to investigate or stop the abuse while Mr. Arar was detained in Syria, or to follow up on his allegations of torture with the Syrian government after his release. Moreover, while the DHS Inspector General’s review is welcome for its potential to add to what is known about Arar’s case, it is limited to the conduct of U.S. immigration officials and their decision to remove Mr. Arar to Syria. Similarly, Abu Ali has alleged in court documents that he reported his torture at the hands of his Saudi jailers to FBI interrogators, but they did not respond to his allegations.¹¹⁸  In short, there is no basis for believing that the stated commitment to investigate and take appropriate action if assurances were being violated is any more than empty rhetoric.