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To All Governments
Reaffirm the absolute nature of
the obligation under international law not to expel, return, extradite, or
otherwise transfer any person to a country 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 (prohibited
ill-treatment).
Prohibit reliance upon diplomatic
assurances against torture and ill-treatment if any of the following
circumstances prevail in the receiving country:
- there is substantial and
credible evidence that torture and prohibited ill-treatment in the
receiving country are systematic, widespread, endemic, or recalcitrant or
persistent problems;
- governmental authorities do
not have effective control over the forces in their country that
perpetrate acts of torture and prohibited ill-treatment;
- the government consistently
targets members of a particular racial, ethnic, religious, political or
other identifiable group for torture or prohibited ill-treatment and the
person subject to transfer is associated with that group;
- in any case where there is
a risk of torture or prohibited ill-treatment upon return directly related
to a person’s particular circumstances.
Ensure that any person subject to
transfer has the right prior to removal to challenge its legality before an
independent tribunal. Any legal review must include an examination of the
reliability of any diplomatic assurances provided by the receiving country.
Persons subject to transfer must have access to an independent lawyer and a
right of appeal with suspensive effect.
Include in required periodic
reports to the Committee against Torture, the Human Rights Committee, and other
relevant international and regional monitoring bodies detailed information
about all cases in which requests for diplomatic assurances against the risk of
torture or other cruel, inhuman, or degrading treatment have been sought or
secured in respect of a person subject to transfer.
To the Government of
the United States:
Cease accepting diplomatic
assurances against torture to justify “renditions” on human rights grounds.
Halt immediately the practice of rendering alleged terrorism suspects (via
extradition, removal, or any other form of transfer) to countries where torture
is a serious human rights problem. No such transfers should be effected from U.S. territory, diplomatic premises, or military bases, including from the U.S. Naval Base at Guantánamo Bay, Cuba. The U.S. government and all its agencies should not order,
participate in, or facilitate such transfers under any circumstances from the
territories of other countries.
Reform U.S. law and policy to
reflect a firm commitment to the government’s obligations under the Convention
against Torture, including prohibiting the seeking and securing of diplomatic
assurances for any transfer (rendition, extradition, removal, or any other
transfer from custody, including from Guantánamo Bay) of any person to a
country where there are substantial grounds for believing that such person
would be in danger of being subjected to torture or cruel, inhuman, or
degrading treatment or punishment.
Repeal 8 C.F.R. §208.18(c)
[Diplomatic Assurances against Torture by the Secretary of State], which
provides for reliance upon diplomatic assurances against torture to remove from
United States territory persons raising claims under the Convention against
Torture in immigration proceedings without an effective opportunity to
challenge the assurances in an independent judicial forum.
Provide all persons subject to
transfer (rendition, extradition, removal, or other transfer from custody,
including from Guantánamo Bay) the ability to challenge the legality of the
transfer, including the reliability of any diplomatic assurances, for
compliance with the U.S.’s obligations under the Convention against Torture.
The procedure governing such challenges should be specified in law and should
provide for review in an independent forum prior to transfer.
Cooperate in a full and
transparent manner with the Canadian Commission of Inquiry into the Maher Arar
case. Release information regarding interactions between U.S. and Canadian officials on this case and regarding the diplomatic assurances against torture
secured by the U.S. government from the Syrian authorities, including the text
of the assurances.
Disclose information relevant to
the Maher Arar case for scrutiny in his federal lawsuit against the U.S. government officials responsible for his transfer to Syria.
Ensure that the “state secrets
privilege” is not abused to limit court access to any information relevant to
the assessment of the risk of torture or ill-treatment that a person might be
subjected to upon transfer to another country.
Support the establishment by the
U.N. High Commissioner for Human Rights (OHCHR) of an international, independent
inquiry into the cases of Ahmed Agiza and Mohammad al-Zari to investigate the
respective roles of the Swedish, U.S., and Egyptian governments in possible
human rights violations against the men. Cooperate in a full and transparent
manner with any such international inquiry under the auspices of the OHCHR.
Submit as a matter of urgency the
U.S. government’s long overdue state report to the Committee against Torture
including, but not limited to, detailed information regarding all cases where
the U.S. government has ordered, participated in, or otherwise facilitated the
transfer of a person to any country based on diplomatic assurances against
torture.
Enact legislation currently
pending in the United States Senate (S. 654) and House of Representatives (H.R.
952) that prohibits the practice of rendition to torture and reliance upon
diplomatic assurances to effect transfers to countries where torture is a
serious human rights problem.
To the Government of Canada:
Repeal as a matter of urgency
Division 9 (sections 76-87) of the Immigration and Refugee Protection Act
(IRPA), providing for the use of security certificates authorizing the
government to detain and deport, based on secret evidence presented in ex
parte hearings and without procedural guarantees, persons determined to be
an imminent danger to Canada’s security, including potentially effecting such
transfers to countries where a person would be at risk of torture or
ill-treatment.
Reform Canadian law and policy to
reflect a firm commitment to Canada’s obligations under the International
Convenant on Civil and Political Rights, Convention against Torture, and the
fundamental legal freedoms enshrined in sections 7-15 of the Canadian Charter
of Rights and Freedoms, which prohibit arbitrary detention or imprisonment;
provide internationally recognized procedural guarantees upon arrest and
detention; guarantee freedom from torture and ill-treatment, including
deportation to risk of such abuse; and prohibit discrimination.
Prohibit reliance upon diplomatic
assurances against torture or ill-treatment for the transfer of any person, no
matter what his or her status, to a country where he or she is at risk of
torture or ill-treatment, in accordance with the Canadian Charter of Rights and
Freedoms and the Convention against Torture.
Assure in the upcoming Canadian
state report to the Committee against Torture for the May 2005 CAT session that
the government of Canada will strictly observe in practice the absolute ban
under article 3 of the convention on sending a person to a country where there
are substantial grounds for believing that he or she would be in danger of
being subjected to torture or to cruel, inhuman, or degrading treatment or
punishment. Reform Canadian law accordingly.
Submit detailed documentation to
the Committee against Torture regarding any cases where the Canadian government
has sought and secured diplomatic assurances against torture in order to expel,
return, extradite, or otherwise transfer a person to a country where he or she
would be at risk of such abuse.
To the Government of Sweden:
Hold accountable all those
security service and law enforcement officials who had decision-making
authority or who participated in the transfers of Ahmed Agiza and Mohammad
al-Zari as documented in the Parliamentary Ombudsman’s March 2005 report, which
concluded that the operation effecting the men’s transfers was illegal and that
the treatment the men were subjected to may have violated article 3 of the
European Convention on Human Rights. Implement the recommendations in the
Ombudsman’s report to ensure that such illegal operations do not recur on
Swedish territory.
Reform the Swedish law to provide
all persons subject to expulsion, return, extradition, or other transfer from
Sweden with an effective opportunity prior to transfer to challenge the
legality of the transfer, including the reliability of any diplomatic
assurances against torture or cruel, inhuman, or degrading treatment or
punishment, in an independent judicial forum with full procedural guarantees
and the right to appeal.
Cooperate in a full and
transparent manner with the Committee against Torture in its May 2005 review of
the individual application of Ahmed Agiza. Cooperate as well with any reviews
of the men’s cases by other U.N. human rights bodies, including the Human
Rights Committee.
Seek the good offices of the U.N.
High Commissioner for Human Rights (OHCHR) in establishing an international,
independent inquiry into the cases of Ahmed Agiza and Mohammad al-Zari to investigate
the respective roles of the Swedish, U.S., and Egyptian governments in possible
human rights violations against the men. Cooperate in a full and transparent
manner with any such international inquiry under the auspices of the OHCHR.
Establish a concomitant
independent, comprehensive, and transparent national inquiry into the cases of
Ahmed Agiza and Mohammad al-Zari as requested by members of six of the
political parties represented in the Swedish parliament.
Cooperate in a full and
transparent manner with the ongoing investigation of the Committee on the
Constitution into possible violations of Swedish constitutional law that may
have occurred in the course of the transfers of Ahmed Agiza and Mohammad
al-Zari.
Press the Egyptian authorities to
grant Ahmed Agiza a fresh trial in a civilian court subject to full procedural
guarantees.
Press the Egyptian government to
end all restrictive measures aimed at prohibiting Mohammad al-Zari from moving
freely within Egypt or leaving the country in recognition of the fact that
Egyptian authorities have declared that he is not suspected of any crime and
released him from detention in October 2003. Press the Egyptian authorities to
ensure that al-Zari is not prohibited in any way, including by threats or harassment
of him or his family members, from making complaints about the handling of his
case and his treatment in detention before national and international bodies.
To the Government of
the United Kingdom:
Halt immediately all negotiations
with the governments of Algeria, Tunisia, Morocco, and any other countries on
“framework agreements” and diplomatic assurances in relation to torture or
cruel, inhuman, or degrading treatment, designed to facilitate the deportation
of foreign nationals suspected of terrorism. Such persons include those foreign
nationals currently subject to control orders under the Prevention of Terrorism
Act 2005 and acknowledged by the U.K. government to be at risk of torture if
returned to their home countries.
Submit to the Committee against
Torture within one year the details of all cases in which the U.K. authorities have sought or secured diplomatic assurances against torture in its efforts to
deport or otherwise transfer terrorist suspects. Such reporting was requested
in the Committee’s 2004 Recommendations and Conclusions on the U.K.’s Fourth Periodic Report.
To the Government of
the Netherlands:
Abide by the Gerechtshof's-Gravenhage
(Hague Court) decision of January 20, 2005 prohibiting the extradition of
Nuriye Kesbir to Turkey based on insufficient diplomatic assurances against
torture and ill-treatment from the Turkish authorities.
To the Government of Austria:
Request that the Russian federal
and Dagestani authorities facilitate the availability of independent
information about Akhmed A.’s situation, including by ensuring regular access
to him by legal representatives of his choosing, medical personnel and family
members. Make representations to the Russian authorities if information
suggests that the assurances proffered in respect of Akhmed A. are not being
satisfied.
Reform Austrian asylum law to
prohibit the transfer, including by extradition, of an asylum seeker with a
pending claim to another country. Such transfers, including extradition, should
not be effected until a full and fair asylum determination procedure has been
concluded.
To the Government of
the Russian Federation:
Ensure that all appropriate
conditions exist for unhindered independent oversight of and reporting on the
treatment of Akhmed A. at his place of detention in Dagestan. These conditions
should include access to him by legal representative of his choosing, medical
personnel, and family members.
To the Government of Egypt:
Support the establishment by the
U.N. High Commissioner for Human Rights (OHCHR) of an international,
independent inquiry into the cases of Ahmed Agiza and Mohammad al-Zari to
investigate the respective roles of the Swedish, U.S., and Egyptian governments
in possible human rights violations against Agiza and al-Zari. Cooperate in a
full and transparent manner with any such international inquiry under the
auspices of the OHCHR.
Grant Ahmed Agiza a new trial in a
civilian court with full procedural guarantees and in conformity with Egypt’s obligations under the Convention against Torture regarding Agiza’s allegations of
torture.
End all restrictive measures aimed
at prohibiting Mohammad al-Zari from moving freely within Egypt or outside the country in recognition of the fact that Egyptian authorities have declared that
he is not suspected of any crime and released him from detention in October
2003. Ensure that al-Zari is not prohibited in any way, including by threats or
harassment to him or his family members, from making complaints about the
handling of his case and his treatment in detention before national and
international bodies.
To the Government of Syria:
Cooperate in a full and
transparent manner with the Canadian Commission of Inquiry into the case of
Maher Arar.
Provide to Maher Arar’s Canadian
and U.S. legal teams all relevant information related to his transfer and
subsequent treatment in Syria, including the form and content of the diplomatic
assurances against torture transmitted to the U.S. authorities.
To United Nations
Bodies:
To the Committee against
Torture
Reaffirm at the May 2005 session
of the Committee (and regularly thereafter) the absolute and non-derogable
nature of the prohibition against torture and the corresponding absolute and
non-derogable obligation not to expel, return, extradite or otherwise transfer
any person to a country where there are substantial grounds for believing that
he or she would be at risk of torture or cruel, inhuman, or degrading treatment
or punishment (the ban on refoulement).
Reaffirm in express terms that the
absolute prohibition against torture and the prohibition against refoulement
include the prohibition against cruel, inhuman, or degrading treatment or
punishment.
Reject any attempt to establish
minimum standards for the use of diplomatic assurances against risk of torture
and ill-treatment as incompatible with the obligation under article 3 of the
Convention against Torture. Emphasize the inherently unreliable nature of
diplomatic assurances and the fact that they are an ineffective safeguard
against torture and ill-treatment in the circumstances described in the second
recommendation of this report.
Require that states’ periodic
reports to the Committee include detailed information about all cases in which
requests for diplomatic assurances against the risk of torture or other cruel,
inhuman or degrading treatment have been sought or secured in respect of a
person subject to transfer.
To the High Commissioner
on Human Rights
Establish as a matter of urgency
an international, independent inquiry into all aspects of the cases of Ahmed
Agiza and Mohammed al-Zari, including investigating the respective roles and
conduct of the Swedish, United States and Egyptian governments. Conduct the
inquiry in a comprehensive manner and make the findings of the inquiry public.
To the U.N. Special
Rapporteur on the question of torture and other cruel, inhuman or degrading
treatment or punishment
Reaffirm in all the rapporteur’s
activities and related documents that diplomatic assurances in relation to
torture or cruel, inhuman, or degrading treatment are inherently unreliable and
their use by states undermines the nonrefoulement obligation enshrined
in article 3 of the Convention against Torture.
Collect information in the course
of relevant country visits on the situation of persons threatened with return
or actually returned on the basis of diplomatic assurances against torture and
ill-treatment.
To the U.N. Independent
Expert on Protection of human rights and fundamental freedoms while countering terrorism
Reaffirm in all the expert’s
activities and related documents that diplomatic assurances in relation to
torture or cruel, inhuman, or degrading treatment are inherently unreliable and
their use by states undermines the nonrefoulement obligation enshrined
in article 3 of the Convention against Torture. Reaffirm that states’ use of
diplomatic assurances against risk of torture is incompatible with Security
Council resolutions and official statements of the U.N. Secretary General and
the U.N. High Commissioner for Human Rights requiring that counter-terrorism
measures conform with states’ obligations under international human rights,
refugee, and humanitarian law.
To the Counter-Terrorism
Committee
Request from states information
about compliance with the absolute ban on torture and refoulement in the
extradition, deportation, removal or other transfer of persons suspected of
involvement in terrorism, including reliance upon diplomatic assurances against
torture to effect such transfers. Ensure that states comply fully with their
obligations to respect human rights while countering terrorism in accordance
with Security Council resolutions 1373, 1456, and 1566. Any information
collected should be made public.
To the United Nations High
Commissioner for Refugees (UNHCR)
Undertake as a matter of urgency
an analytical study on states’ increasing reliance on diplomatic assurances
against torture and ill-treatment to effect transfers of asylum seekers and
refugees to places where they would be at risk of such abuse. Adopt clear legal
and policy guidance for states on this practice.
Require all UNHCR field offices to
record and monitor cases in which refugees, asylum seekers, and persons
excluded from refugee status based on national security grounds are subject to
return or other transfer following reliance on diplomatic assurances against
torture and ill-treatment. Intervene directly with the governments when it is
clear that any such person would be at risk of torture and ill-treatment.
Establish within the Department of
International Protection (DIP) a focal point for urgent communications
regarding any asylum seeker, refugee, or person excluded from refugee status on
national security grounds subject to transfer based on diplomatic assurances
against torture and ill-treatment.
To Council of Europe Bodies:
To the Committee of
Ministers
Decline to adopt the new European
Convention on the Prevention of Terrorism unless and until Article 21
(“Discrimination Clause”) is revised in line with the wording contained in
draft Article 18bis, point 2 in Opinion No.255 of the Parliamentary
Assembly of the Council of Europe (PACE) on the draft Convention (“Grounds for
refusing extradition or mutual legal assistance”): “States Parties shall refuse
to comply with requests for extradition made in relation to the offences set
forth in Articles 4-7 where there are substantial grounds for believing that
complying with the request would result in the person concerned facing a real
risk of:
(…)
c. being subjected to torture
or to inhuman or degrading treatment or punishment.”
To the Parliamentary
Assembly of the Council of Europe (PACE)
Deplore the failure of the
CODEXTER experts group, in drafting the European Convention on Prevention of
Terrorism, to follow the recommendation of the PACE in its opinion No.255
(2005) on the draft Convention, affirming the absolute nonrefoulement
obligation in respect of extradition requests of persons facing a real risk of
torture or inhuman or degrading treatment or punishment.
Task the Committee on Legal
Affairs and Human Rights to undertake a study into all cases to date where
Council of Europe member states have sought or have been requested to provide
diplomatic assurances against torture or cruel, inhuman, or degrading treatment
or punishment in extradition, return, expulsion, or other transfer cases.
To the European Committee
for the Prevention of Torture
Reaffirm the absolute nature of
the nonrefoulement obligation in the course of confidential discussions
with governments. Emphasize that diplomatic assurances in relation to torture
or cruel, inhuman, or degrading treatment are inherently unreliable and that
their use by states undermines the nonrefoulement obligation enshrined
in article 3 of the European Convention on Human Rights.
Collect information in the course
of country visits on the situation of persons threatened with return based on
diplomatic assurances against torture and ill-treatment and on the situation of
persons who have been returned to the country of visitation based on such
assurances and the respective governments’ compliance with the assurances.
To the Council of Europe High Commissioner for Human Rights
Continue to reaffirm that the
state practice of seeking diplomatic assurances that a person will not be
tortured or subjected to cruel, inhuman, or degrading treatment or punishment
undermines the nonrefoulement obligation enshrined in article 3 of the
European Convention on Human Rights.
To Bodies of the
Organization for Security and Co-operation in Europe:
To the Chairman-in-Office
Put forward for adoption at the
2005 Ministerial Conference a declaration reaffirming the absolute nature of
the obligation under international law not to expel, return, extradite, or
otherwise transfer any person to a country where there are substantial grounds
for believing that he or she would be in danger of being subjected to torture
or prohibited ill-treatment, consistent with the importance attached in the
OSCE Copenhagen commitments (Article 16) to accession to and respect for the
Convention against Torture.
Actively promote the recognition
that diplomatic assurances against torture and ill-treatment are unreliable and
ineffective safeguards against torture and prohibited ill-treatment, and press
OSCE participating states to give up their use.
To the Secretary General
and to the Director of the Office for Democratic Institutions and Human Rights
(ODIHR)
Task the Action against Terrorism
Unit of the OSCE Secretariat and the Anti-terrorism Coordinator at the ODIHR to
monitor adherence by OSCE participating states to their nonrefoulement
obligations, including any instances of recourse to diplomatic assurances,
which should be reported to the Chairman-in-Office.
Ensure that technical assistance
to OSCE participating states in support of drafting anti-terrorism legislation
and strengthening existing legislation directs states away from the use of
diplomatic assurances against torture and ill-treatment. Emphasize through
assistance in support of implementation of relevant U.N. Security Council
resolutions, U.N. conventions and protocols the absolute nature of the nonrefoulement
obligation.
To European Union
Bodies:
To the Counter-terrorism
Coordinator
Reaffirm in all the Coordinator’s
activities and related documents, including in communications to the European
Council, that diplomatic assurances in relation to torture or cruel, inhuman,
or degrading treatment are inherently unreliable and do not provide an
effective safeguard against abusive treatment. Reaffirm that the use of
diplomatic assurances against risk of torture and ill-treatment undermines the nonrefoulement
obligation enshrined in international law.
To the European Parliament
Ensure that any draft resolution
coming before the Parliament which refers to actions to combat terrorism makes
appropriate reference to member states’ absolute obligation not to expel,
return, extradite, or otherwise transfer any person to a country 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 (prohibited ill-treatment).
To the European Commission
Include in the June 2005 progress
report requested from the Commission and the Council’s General Secretariat by
the Brussels European Council of December 2004 the recommendation for a
declaration that reliance upon diplomatic assurances against torture and
ill-treatment is unacceptable in the circumstances described in the second
recommendation of this report.
To the Inter-American
Commission on Human Rights:
Affirm the inherently unreliable
nature of diplomatic assurances against torture and ill-treatment and recommend
that all Organization of American States (OAS) member states desist from
reliance upon such assurances.
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