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Diplomatic Assurances are No Safeguard against Torture

Diplomatic assurances—formal representations on the part of one government to another—are legally unenforceable though not always without political effect. When diplomatic assurances are made against torture or ill-treatment by states with a record of such abuse, they particularly lack credibility and effect. The damage is wrought not only by the state with the record of abuse. The state that solicits such dubious representations undermines the absolute prohibition against refoulement and gives tacit sanction to the other state’s policies and practices of torture. The arguments below illustrate why diplomatic assurances are an unreliable and ineffective safeguard against torture and prohibited ill-treatment.

The Limits of Diplomacy

Diplomacy entails the tactful management of foreign relations to promote the overall interests of the state. Human rights may be one of those interests, but it is seldom the only one, and as a consequence diplomacy cannot be an exclusive and reliable lever for human rights protection.

The tender arts of negotiation and compromise that characterize diplomacy can undermine straightforward and assertive human rights protection. The fundamental right to be free from torture, however, is not negotiable or permitting of compromise.

Diplomats are often quite candid that their top priority is to ensure friendly relations with other states, sometimes at the expense of confronting governments about possible human rights violations, including about breaches of pre-agreed diplomatic assurances. For example, when the former Swedish Ambassador to Egypt was asked why he let five weeks lapse before visiting two Egyptians expelled in December 2001 from Stockholm to Cairo following diplomatic assurances, he replied that the Swedes could not have visited the men immediately because that would have signaled a lack of trust in the Egyptian authorities.⁴⁹ The men were held incommunicado in police custody and subsequently credibly claimed that they had been brutally mistreated in the course of those five weeks (see section on Sweden below).

Likewise, the Canadian government has been criticized for its “so-called silent diplomacy” on behalf of Omar Khadr, a child detainee at Guantánamo Bay.⁵⁰ According to the Canadian Department of Foreign Affairs, when stories of mistreatment at Guantánamo Bay first surfaced, the Canadian government sought and received assurances of humane treatment for Khadr from the U.S. authorities.⁵¹ But Khadr’s allegations of abusive treatment in detention—including being shackled in painful positions, threatened with rape, and being used as a “human mop” after he urinated on the floor during an interrogation—have led his lawyers to conclude that “Canada was more interested in helping the Americans get information from Khadr than confirming his well-being.”⁵²

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. For example, in the case of Hani El Sayed Sabaei Youssef (see section on United Kingdom below), British Prime Minister Tony Blair expressed concern regarding the diplomatic fallout as a result of Home Office demands for watertight diplomatic assurances against torture and unfair trial as a quid pro quo for Youssef’s return. Blair’s Private Secretary detailed those concerns in an April 1999 letter to the Home Office stating, “[W]e are in danger of being excessive in our demands of the Egyptians…why [do] we need all the assurances proposed by the F[oreign] C[ommonwealth] O[ffice] and Home Office Legal advisers. Can we not narrow down the list of assurances we require?”⁵³

There is also a profound lack of transparency in the process of seeking and securing assurances at 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, a United States Department of State legal advisor argued that seeking, securing, and monitoring diplomatic assurances 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 (see section on United States below).⁵⁴

With respect to diplomatic assurances against torture, diplomacy alone provides no guarantee against maltreatment.

Trusting States to Honor Unenforceable Assurances

International agreements between and among states have a generally high level of compliance.⁵⁵ The diplomatic and monetary consequences of non-compliance often provide the necessary incentive for states to comply with their obligations under these agreements.⁵⁶ Human rights treaties and international agreements dealing with human rights protections, however, often lack that incentive. As one commentator has remarked:

[T]he major engines of compliance that exist in other areas of international law are for the most part absent in the area of human rights. Unlike the public international law of money, there are no "competitive market forces" that press for compliance. And, unlike in the case of trade agreements, the costs of retaliatory noncompliance are low to nonexistent, because a nation's actions against its own citizens do not directly threaten or harm other states. Human rights law thus stands out as an area of international law in which countries have little incentive to police noncompliance with treaties or norms.⁵⁷

Diplomatic assurances against torture represent a set of “understandings” agreed in principle between two governments. They have no legal effect and the person who they aim to protect has no recourse if the assurances are breached.

Moreover, the governments involved in negotiating the assurances have little or no incentive to monitor for and highlight a breach of diplomatic assurances against torture or ill-treatment. 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. In either situation, a sending government that discovers a breach of the assurances would have to acknowledge a violation of its own nonrefoulement obligation.

A receiving government also has little incentive to abide by assurances against torture and ill-treatment. All of the receiving states identified in this report routinely violate their legally binding human rights treaty obligations by employing torture to effect state policy.⁵⁸ They obviously believe that there is little to gain from observing those legal obligations. It is unlikely that governments that practice torture unconstrained by international legal commitments will rein in abuse on the basis of non-binding assurances.

Indeed, states that torture routinely accompany their flagrant violations with insistent denials of abuse, often despite overwhelming evidence to the contrary. Such denials also obtain in individual cases of abuse despite diplomatic assurances of protection. For example, amidst serious and credible allegations that the two Egyptian men expelled from Stockholm to Cairo in December 2001 were tortured, the Egyptian authorities simply issued a blanket denial that torture or ill-treatment had occurred. The Egyptian government “refuted the allegations [of torture] as unfounded” and communicated to the Swedish authorities that the Egyptian authorities were “of the opinion that further investigations are not necessary.”⁵⁹ The Swedish government appears to have little recourse in the face of such denials. When Maher Arar, a Syrian-Canadian binational, credibly alleged that he had been tortured in Syria after his transfer there by U.S. and Jordanian operatives following assurances from the Syrians, the Syrian authorities simply claimed that his allegations were not true—and the U.S. government accepted the Syrian denial of torture at face value (see section below on the United States).⁶⁰ Taking the word of a government that routinely lies about torture only reinforces the value of denial over admission and correction.

All of the texts of diplomatic assurances collected by Human Rights Watch reiterate the receiving country’s existing treaty obligations—ones that they already routinely flout and routinely deny violating—as the basis for illustrating that they can be trusted to comply with non-legally binding diplomatic assurances when it comes to the treatment of the one individual in question.⁶¹ For example, in January 2005, a Dutch court ruled that assurances from Turkey “added nothing” to the protection of a former PKK operative threatened with extradition because the guarantees merely restated Turkey’s currently existing human rights obligations, which Turkey had not observed in general with respect to eradicating torture on the ground (see section below on The Netherlands). None of the assurances provide for a mechanism to challenge a breach of the assurances or any other remedy for a credible allegation that the agreement had been broken. Thus, if one or the other of the states involved violates the assurances, it literally has nothing to lose.⁶²

The Tacit Acceptance of Torture

Most governments openly admit that they seek diplomatic assurances from states where torture is a serious problem. The phenomenon of one state requesting that another make an exception to its general policy of employing torture with respect to just one individual has deeply disturbing implications. Asking for the creation of such an island of protection comes dangerously close to accepting the ocean of abuse that surrounds it.⁶³ In a December 2004 decision, a U.S. immigration judge eloquently articulated the potential fallout from appearing to sanction torture when he stated:

In light of the incontrovertible evidence of record, returning respondent to Yemen at this time where he is likely to be detained and tortured not only would be in abrogation of this country’s commitments under the U.N. Torture Convention, 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.⁶⁴

The international community’s efforts to promote compliance with human rights norms are generally addressed at the level of the overall system of protection. The human rights community advocates for changes to the laws, policies, and practices that facilitate abuses such as torture—and many governments worldwide have joined that effort. If the international community as a whole were to endorse assurances to protect one person, it would be perceived as ignoring those systematic failings, neglecting the obligation to address the endemic nature of the problem, and providing abusive governments with a device to falsely flaunt their human rights credentials without having to abide by their general legal obligations on torture.

The Limits of Post-Return Monitoring

The vast majority of written diplomatic assurances contain no provision for independent monitoring of a person after he or she is returned. Some governments that secure diplomatic assurances, however, also arrange with the receiving government to conduct post-return monitoring, either by diplomatic personnel or an independent monitoring body. For example, the Swedish government made such arrangements with the Egyptian authorities after the two Egyptian men were returned, and the International Committee of the Red Cross (ICRC) visited a man extradited from Austria to Dagestan, Russia based on such assurances (see Sweden and Austria sections below). By arranging for such monitoring, governments argue that they have provided the returned person with an additional measure of safety.

Thus, post-return monitoring is meant to serve as both a disincentive and an accountability mechanism: 1) the receiving government allegedly would not breach the assurances because of fear that the sending government’s monitors would detect the abuse and 2) in the event of allegations or actual abuse, the sending government could hold the receiving government accountable for breaches of the assurances. These arguments, however, are based on a set of false assumptions.

False: Torture is Easy to Detect

Torture is illegal, criminal activity. It is practiced in secret, with the complicity of prison and detention facility staff and medical personnel, including physicians.⁶⁵ Indeed, monitoring by the ICRC at Abu Ghraib prison was often frustrated by the actions of prison staff. The U.S.’s own internal investigations into abuses at the prison confirm this by detailing how some detainees were moved by military guards at the prison to hide them from a visiting ICRC delegation.⁶⁶

Torture often occurs within a highly sophisticated system specifically designed to keep abuses from being detected. Advanced forms of torture—for example, electric shock—are virtually undetectable to an untrained eye. Other forms of torture that often go undetected include submersion in water, sexual violence, and various forms of psychological torture. Untrained diplomatic staff attempting to monitor a detainee would be unlikely to detect anything but the most obvious signs of physical torture.

Moreover, persons subjected to torture are often reluctant to speak about the torture they have suffered out of fear of further abuse as retribution for complaining. Often this fear emanates from threats by the abusers directed at the detainee or at a detainee’s family members. For example, according to the ICRC, one detainee interrogated at a facility in the vicinity of Camp Cropper in Iraq alleged that he had been hooded; cuffed with flexicuffs; threatened with death; urinated on; kicked in the head, groin and lower back; had a baseball inserted into his mouth; and was deprived of sleep for four consecutive days. When the detainee threatened to complain to the ICRC, he was beaten more.⁶⁷ According to Ahmed Agiza’s family members, he was threatened with more abuse after he revealed to Swedish embassy officials that he had been tortured in Egyptian custody after being expelled from Sweden following assurances against torture from the Egyptian authorities (see section below on Sweden). ⁶⁸

Human Rights Watch’s research reveals that pre-agreed monitoring schemes subsequent to returns based on diplomatic assurances lack sufficient safeguards to ensure that torture is detected, including video and audio recording of all interrogations in the presence of a lawyer; expert monitors, trained in detecting signs of both physical and psychological torture and ill-treatment; meetings with a detainee in total privacy; routine forensic medical examinations by an independent physician not associated with the detention facility; confidentiality when transmitting allegations of torture so that the detainee and his or her family do not suffer further retribution for having spoken out; and the ability of the monitors to visit and have unhindered access to a detainee at any time, without having to provide advance notice.⁶⁹ 

In the vast majority of countries where torture is a serious problem, these arrangements would be impossible (that is, they would never be approved or tolerated by the government or other actors responsible for acts of torture) thus making the project of designing an effective post-return monitoring scheme a highly dubious exercise. Indeed, in many of the countries of return referenced in this report, no independent monitoring of detention facilities is permitted, and often family members and lawyers are routinely denied access.

False: Monitoring Provides an Accountability Mechanism

The notion that post-return monitoring can serve as an accountability mechanism is also not borne out by our research. In instances where there is credible evidence of torture, the sending government will simply place blame on the receiving government as the party that has violated the assurances. For example, while the government of Sweden has stated its concern over breaches of the diplomatic assurances with Egypt, it remains insistent that it is Egypt’s responsibility and that if torture did occur, the Swedish government is not responsible.⁷⁰ Moreover, in the face of Egyptian breaches of the assurances, the Swedish authorities appear to have very little influence with the Egyptian authorities in terms of persuading them to initiate an investigation into the torture allegations. In a December 2004 speech addressing the theme “Security under the Rule of Law,” Minister of Foreign Affairs Laila Freivalds stated that although the Swedish government has requested that the Egyptian government carry out a thorough and independent inquiry, “We have still not received a satisfying response to our request.”⁷¹

Indeed, the sending government has no incentive to find that torture or ill-treatment has occurred because by doing so it makes an admission that it has violated its own nonrefoulement obligation. In May 2004, Human Rights Watch obtained a classified report detailing the first post-return monitoring visit by Swedish diplomats to the two Egyptians expelled from Stockholm in December 2001.⁷² The classified version of the report included allegations by the men that they had been physically abused by Swedish police officers, and had been seriously physically abused and ill-treated by Egyptian security police in the first five weeks of incommunicado detention upon return to Cairo. These allegations had been deleted from the publicly available version of the monitoring report. The Swedish authorities also did not make the classified version with the allegations of abuse available to various United Nations mechanisms examining the men’s cases.⁷³

Moreover, the idea that confidential monitoring alone can exert sufficient pressure to forestall abuses is misguided. The April 2004 Abu Ghraib scandal further reveals the limits of confidential monitoring.⁷⁴ Although the ICRC had access to the Abu Ghraib prison, military and intelligence personnel deliberately obstructed monitors’ efforts to meet with and evaluate certain detainees. When the ICRC confidentially transmitted its concerns regarding the ill-treatment of some detainees, the United States government virtually ignored those complaints.

The challenges of monitoring for torture indicate that even the most expert monitors cannot provide the necessary safeguards against, and accountability for, acts of torture perpetrated in secrecy.

The Principle: Diplomatic Assurances Undermine the Nonrefoulement Obligation

Reliance upon diplomatic assurances signals an erosion of the absolute obligation not to return or transfer a person to a place where he or she is at risk of torture or ill-treatment. In seeking assurances against abusive conduct, governments acknowledge that a risk of torture and ill-treatment exists in the country of return. The risk derives from the fact that many receiving states have failed to implement effective measures to halt and prevent the torture of their own citizens and others within their jurisdiction, and to hold accountable those responsible for such abuses. It may also arise from the particular characteristics and circumstances of the person vulnerable to transfer.

Once a sending government acknowledges that a risk of torture exists in a specific country, it is incumbent upon its authorities to refuse to transfer a person to that country. If sending governments want to ensure that they are able to transfer suspects to any jurisdiction while respecting their nonrefoulement obligation, they should focus their energy on assisting receiving governments in reform efforts to eradication torture and ill-treatment, rather than trying to bypass the rules by relying on assurances. Receiving governments can facilitate such transfers only by complying with their obligations under the Convention against Torture, the International Covenant on Civil and Political Rights, and customary law to prevent and halt acts of torture, and by implementing accountability mechanisms to address torture abuses. A verifiable record of compliance with international norms against torture by the receiving state is the most effective way to reduce the risk of torture and ill-treatment upon return, not an offering of unreliable and vague assurances.