Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

5 Diplomatic assurances against torture

95. Article 3 UNCAT sets out the obligation not to return anyone to a state where they face torture. It states:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

96. This obligation mirrors that established in the jurisprudence of the European Court of Human Rights, notably in the case of Chahal v UK, which we have already discussed above.[127]

97. The Concluding Observations expressed concern regarding the UK's use of diplomatic assurances and recommended that the UK should provide it with the number of cases of extradition or removal subject to diplomatic assurances, since 11 September 2001, with details of the UK's minimum contents for such assurances, and of the subsequent monitoring it had undertaken in respect of such assurances.

98. Since that time, the Government has made it its policy to develop a system for the use of diplomatic assurances against torture in cases involving national security considerations. The system is to be based on "Memoranda of Understanding" with a number of countries to which people are to be deported. The Government accepts that, because of the widespread use of torture and ill-treatment in these countries, it would be precluded by Article 3 ECHR from deporting people to them in the absence of diplomatic assurances. The impossibility of such deportations was one of the bases for the institution of detention without trial for non-nationals under the Anti-Terrorism Crime and Security Act 2001, which necessitated derogation from Article 5 ECHR, and for the subsequent system of control orders under the Prevention of Terrorism Act following the declaration of incompatibility made in respect of the 2001 Act.

99. Amnesty International stated in oral evidence that:

the Government for nearly four years has recognised—indeed asserted—that the deportation of those individuals would be contrary to its international obligations and the non-refoulement prohibition. What has changed since then is the assertion of the Government that by relying on diplomatic assurances they will be able to ensure that those individuals will not suffer the risk that the Government has itself recognised all along.[128]

100. A number of cases, cited in evidence to us, point to the unreliability of diplomatic assurances to protect against torture. In Agiza v Sweden,[129] the UN Committee Against Torture concluded that the rendition of the applicant from Sweden following written assurances provided by a senior representative of the Egyptian government breached Article 3 UNCAT. The assurances in that case provided that the applicant would not be subjected to torture or other inhuman treatment, that he would not be sentenced to death or executed, that the Swedish embassy would be permitted to monitor his trial and to visit him both before and after his conviction. Despite this, the Human Rights Committee found that the Swedish authorities knew or ought to have known of the risk of torture to the complainant in Egypt. It held that "the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk".[130]

101. A Canadian commission of inquiry is currently investigating the case of Maher Arar, a dual national of Canada and Syria, deported from the US to Jordan, where he was handed over to the Syrian authorities, on foot of assurances to the US from the Syrian Government that he would not be tortured.[131] The first fact-finding report of the Commission has concluded that Mr Arar was tortured whilst in detention in Syria.[132]

102. As Human Rights Watch also notes in its evidence, diplomatic assurances have in some cases been found by courts, including in extradition cases before the UK domestic courts, to be an insufficient guarantee of the safety of an individual to allow their transfer from the UK.[133] This contrasts with the courts' approach to diplomatic assurances against the imposition of the death penalty, where assurances have often been found to be sufficient to permit extradition.

103. As is made clear by these cases, diplomatic assurances are not by any means a phenomenon which is exclusive to the UK.[134] They are increasingly used both by the United States and by other European countries, as a basis for the transfer of terrorist suspects, either to the state of the suspect's nationality, or to a third state.[135]

104. The nature of diplomatic assurances may of course vary, from the briefest of formal assurances that an individual will not be ill-treated,[136] to relatively detailed provision, including for monitoring of the assurances. The question addressed in much of the evidence on this aspect of our inquiry is whether more detailed guarantees and monitoring can render diplomatic assurances a practical and effective safeguard against torture, or whether such assurances will remain ineffective to protect individuals transferred to states where torture is routine or widespread.

Memoranda of Understanding already concluded

105. The UK has concluded Memoranda of Understanding with Jordan, Libya and Lebanon.[137] The Government has said that negotiations to conclude similar memoranda with states including Algeria, Morocco and Egypt are well advanced, though according to a recent press report, a Foreign Office civil servant has given evidence to SIAC to the effect that the Government has failed to get written assurances from the Algerian Government, which has also refused to agree to any independent monitoring of the fate of the men after their return.[138] The existing Memoranda specify that, if detained following deportation, the deported person will be "afforded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards." None of the Memoranda contain express references to torture. Each provides for prompt and regular private visits from representatives of an independent body nominated jointly by both states, though the minimum frequency of the visits is different in each Memorandum.[139] Whilst the Libyan and Lebanese Memoranda provide for medical examinations to assess any ill treatment, the Jordanian memorandum does not. None of the Memoranda make clear that the medical personnel involved will be independent of the detaining authorities, or whether the medical examination will take place privately without representatives of the detaining authorities being present, or to whom if anyone it will report.

106. The Memoranda are essentially framework documents, which are to form the basis for individual diplomatic assurances as to the safety of individual detainees. Many of the details which would be crucial in establishing the independence and efficacy of the monitoring mechanisms for the assurances remain to be resolved.

107. In none of the Memoranda is the monitoring body specified. It would appear that a UK body, an independent organisation from the receiving state, or an international body would be permissible under the Memorandum. Under the Jordanian Memorandum, the monitoring body reports to the authorities of the sending state, whilst under the Libyan memorandum the report is to be made to both states. A Jordanian national NGO, the Al Adaleh Human Rights Centre, has been identified as a monitor for the Jordanian Memorandum,[140] and negotiations are under way to identify monitors for the other Memoranda already agreed. In light of the reciprocal nature of the Memoranda, negotiations are also understood to be ongoing to identify organisations to monitor the treatment of persons deported from Jordan, Libya or Lebanon to the UK.

108. We raised with Baroness Ashton the question of the variation in the protection offered by each of the Memoranda of Understanding. She considered that the Memoranda should not be expected to be in the same terms in relation to each country, since the situation in each country should be considered separately, and the guarantees appropriate to the situation in that country sought.[141] Baroness Ashton accepted, however, that it was a matter for the courts to decide if deportations on the basis of diplomatic assurances should be allowed to proceed.[142]

109. The Home Secretary, giving oral evidence in our separate inquiry into counter-terrorism policy and human rights, said, in reply to concerns that the monitoring mechanisms for diplomatic assurances would be ineffective in practice, that:

[t]he broad functions to be performed by any monitoring body, for example, practical arrangements for dealing with the situation immediately on arrival and for contacting the monitor will be dealt with in conjunction with the body selected and the government concerned ... The monitoring body would need to have available to it the expertise and experience necessary to effectively monitor the arrangements. That is what we will work to achieve.[143]

The reliability of diplomatic assurances

110. Much of the written evidence we received[144] concerning diplomatic assurances argues that the Government's current efforts to conclude such Memoranda will lead to breaches of the UK's obligations under Article 3 UNCAT, as well as other domestic and international human rights obligations. There is the further, wider concern from several organisations,[145] that the use of diplomatic assurances may erode the absolute nature of the legal prohibition against torture, as affirmed in the case of Chahal v UK.[146] Submissions from Liberty and JUSTICE, and from Human Rights Watch, as well as reports submitted by Amnesty International, detail the poor human rights record of the countries to which it is proposed to deport under diplomatic assurances, in particular Jordan, Egypt, and Algeria.[147] The Immigration Law Practitioners' Association (ILPA) comment that: "what is surprising is that the UK government should regard as credible assurances on torture offered by any government that routinely violates its international obligations in respect of torture".[148]

111. The point has been made, by both the Council of Europe Commissioner for Human Rights, Mr Alvaro Gil-Robles,[149] and the UN Special Rapporteur on Torture, Mr Manfred Nowak[150] that it is in the nature of diplomatic assurances against torture that they will be sought from states only where it is judged that the returned individual would otherwise be likely to be subject to torture, given the widespread or systematic use of torture in that state either in general, or against particular classes of individuals. Such torture will be carried out in breach of the State's existing international legal obligations; since the state's compliance with these obligations cannot be relied upon, it is argued that it is equally unlikely to comply with assurances in particular cases.[151]

112. Baroness Ashton was clear in her evidence to us that the system of diplomatic assurances depended on mutual good faith between Governments. She considered it inappropriate to look behind that good faith, and stressed that such agreements should not be entered into on the presumption that they were unlikely to be complied with. This approach was questioned by NGO evidence which pointed out that, even assuming that diplomatic assurances were honestly provided by Governments, it was in practice often the case, in states where torture was systematic, that the Government was not in a position to provide an effective guarantee against its use in a particular case, as it would lack sufficient control over regional or local authorities, or police officers on the ground.

113. Human Rights Watch stated that in countries where torture was practised, including countries with which Memoranda of Understanding had been concluded, it would be impossible for the Government to honour a diplomatic assurance made in good faith because there would not be sufficient control of the actors on the ground to ensure that torture did not take place, since "where the practice of torture is systematic it means that it is routine in the conduct of the operations of the security forces, it is not that an order is given that a particular person should be subject to ill-treatment".[152] ILPA cautioned that "the reality is that reliable assurances are simply not within the gift of highly placed officials where security services and those charged with the day to day care of those detained are able in practice to perpetrate torture with impunity".[153]

114. A similar conclusion was arrived at by the European Court of Human Rights in the Chahal case, where it held that notwithstanding the acknowledged good faith of the Indian government in providing an assurance that the applicant would not be ill-treated following return to India, there was insufficient state control of individual officers on the ground to ensure the applicant's safety. Relying on evidence provided in the US State Department report on India, the Indian National Human Rights Commission's Report on Punjab, and reports by Amnesty International, the Court found a "recalcitrant and enduring problem" of human rights violations by the security forces, which persisted despite the efforts of the Government.[154]

115. In assessing the reliability of diplomatic assurances, it is significant that they are never legally enforceable, and afford no remedy or sanction if, in violation of the assurance, a returned individual is in fact tortured or subjected to inhuman or degrading treatment. Baroness Ashton stated that if there appeared to be a problem of compliance, then "the normal routes" could be used to seek information and review of the situation, and further steps could be considered, depending on the nature of the alleged breach. However she stated that : "it would be wrong for me to come up with a list of things we might do at this stage when our principal desire is to make sure those engaging with us through a memorandum absolutely understand that we are expecting their obligations to be fulfilled".[155]

Monitoring mechanisms

116. The efficacy of monitoring mechanisms for diplomatic assurances was questioned in evidence to the inquiry.[156] Human Rights Watch argued that "torture and ill-treatment are practised in secret and occur within a highly sophisticated system specifically designed to keep abuses from being detected. As a result, even if a sending government sought to engage in serious post-return monitoring, it would come up against the reality that those who use torture are adept at hiding it".[157] Furthermore, a number of respected international organisations, including the International Committee of the Red Cross (ICRC), Amnesty International and Human Rights Watch, have stated that they would not act as independent monitors for diplomatic assurances.[158] JUSTICE and Liberty considered it unlikely that any credible body would be willing to undertake the independent monitoring role envisaged in the memoranda of understanding with Jordan and Libya.[159]

117. Baroness Ashton argued that domestic human rights organisations were capable of providing effective independent monitoring of diplomatic assurances, pointing to their understanding of the country concerned. She emphasised that ultimately it would be for the courts to judge whether the monitoring arrangements for diplomatic assurances were sufficiently independent and effective to allow for deportations to proceed.[160]

118. The House of Commons Foreign Affairs Committee, in its Human Rights Annual Report, recorded its "strong concerns that the monitoring arrangements [under the Memoranda of Understanding] are not adequate" and concluded that the Memoranda should only be used where the Government could be sure that the monitoring mechanisms in place were entirely effective. The Committee cautioned that Memoranda "must not be used as a fig leaf to disguise the real risk of torture for deported terrorism suspects". It recommended that the Government provide further information on how monitoring would work, in its response to the Committee's report.[161]

119. In its response, the Government states that it has no intention of using MoUs as a fig leaf to disguise a real risk of torture for deported terrorism suspects. In its view, MoUs provide an additional level of protection over and above that contained in international human rights instruments. It explains that in selecting and appointing monitoring bodies, both governments work closely together to establish the monitoring body's suitability, taking into account several factors, including capacity, independence and access to expertise. The Jordanian Government has agreed to the appointment of the Al Adelah Human Rights Centre as the monitoring body in Jordan and has approved its terms of reference. The Centre, whose aims are to enforce human rights values, democracy and justice in Jordan and the region through capacity building for NGOs and activists, has agreed to act as a monitoring body.

120. To be effective in monitoring assurances it is essential that any NGO is independent from government and that its staff are properly trained. Maintaining independence from government in the countries where diplomatic assurances are needed is likely to be difficult for NGOs.

Comparison with death penalty assurances

121. It was argued by a number of witnesses that diplomatic assurances to prevent torture cannot be compared to similar assurances that the death penalty will not be imposed. Amnesty International pointed out that, unlike torture, the death penalty, though outlawed by protocols to the ECHR to which the UK is party, is not absolutely prohibited in customary international law. Therefore "diplomatic assurances with respect to the death penalty simply acknowledge the different legal approaches of two states and make an exception to one state's declared policies to accommodate the concerns of the other." Secondly, whilst the death penalty is practised openly by many states under the authority of their domestic law, torture is almost always unacknowledged and practiced in secret, in breach of both domestic and international law. Unlike the death penalty, torture will already be practised in breach of binding guarantees, and therefore guarantees against its use in a particular case are unreliable.

122. The relative reliability of assurances concerning the death penalty and assurances concerning torture was considered by the Supreme Court of Canada in the case of Suresh, which we referred to above.[162] The Court said:

"124 It may be useful to comment further on assurances. A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.

125 In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government's record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government's ability to control its security forces."

Wider implications of diplomatic assurances

123. In addition to questions of effective protection of individuals, a system of diplomatic assurances against torture also raises important general issues of principle. The absolute prohibition on torture is one of the central elements of international human rights legal protection. The jus cogens, or higher international law, prohibition on torture which is binding on all states in all circumstances represents a powerful, universal condemnation of torture by all states. There have been concerns that the negotiation of individual assurances against torture implies a dilution of this absolute legal prohibition. To negotiate for protection from torture on a case by case basis implies an understanding that a state does use torture sufficiently regularly for the assurance to be necessary in the individual case. It may further be read as implying acceptance of that state of affairs, and an understanding that the universal international legal prohibition on torture is not to be taken seriously, or at least not as seriously as the terms of an individual bilateral assurance. It may thereby encourage states which routinely practise torture in the belief that such practices are tolerated, at least in some cases.

124. Manfred Nowak, the UN Special Rapporteur on Torture, with whom we met informally in the course of this inquiry, voiced this general concern. He further considered that the use of diplomatic assurances against torture had an impact beyond the prohibition on torture, in that it served to undermine multilateralism in the international protection of human rights. In his view, such bilateral agreements did not serve to put general pressure on the receiving state to enhance its protection against torture, but undermined the more general protection offered by treaties such as UNCAT.

125. On the other hand, it may be argued that the negotiation of Memoranda of Understanding or similar bilateral arrangements present an opportunity to engage with states which violate the right to freedom from torture, and to drive up standards of protection more generally in the process of negotiating protection for an individual. We discussed this issue in oral evidence with representatives of NGOs. Amnesty International did not consider that there would be any value for NGOs in participating in the "flawed" process of monitoring diplomatic assurances.[163] Similarly, Human Rights Watch were clear that they would not further their objectives by engaging with a mechanism which was "not a tool for improving human rights … [but] a tool for circumventing the non-refoulement obligation".[164]

Conclusions on diplomatic assurances

126. In our Third Report of this Session, we concluded that states were entitled to seek diplomatic assurances against torture from other states, and that in principle such assurances were capable of satisfying the State's obligation not to return an individual to a real risk of torture. Assurances would be considered by the courts as one of the relevant factors in assessing the risk of torture in the particular circumstances of each case. We considered however that in practice such assurances should be treated with great caution so as not to undermine the absolute nature of the prohibition on torture, but that the content of each assurance should be examined in the context of each particular case. We deferred until this report consideration of whether the particular Memoranda of Understanding recently agreed by the UK were likely to be human rights compliant.[165]

127. The analysis which follows represents our conclusions on the general human rights issues raised by these MoUs: it does not relate to individual cases of proposed deportation on the basis of assurances. The assessment of the risk of torture following removal is a matter for the courts and is dependent on the individual circumstances of each case, including the circumstances of the country to which deportation is proposed, the circumstances of the applicant and the nature of the protection offered by the terms of the assurance in the case. In Chahal v UK, for example, all of these circumstances were considered by the Court, and it was a combination of the prevalence of torture of terrorist suspects such as the applicant, and the inability of the government to ensure his safety in practice, which grounded the Court's decision that the assurance in that case was insufficient to allow deportation compatibly with Article 3 ECHR. Nevertheless the Court in that case accepted the good faith of both Governments in negotiating the diplomatic assurance. In the case of Agiza v Sweden, the UN Committee Against Torture's assessment that the diplomatic assurance was insufficient to prevent torture was also based on the terms of the particular assurance in that case, and did not go so far as to rule out any reliance on diplomatic assurances.

128. The Venice Commission on Democracy through Law, in a recent legal opinion, has taken the view that, although in principle the acceptance of diplomatic assurances is "the expression of the necessary good faith and mutual trust between friendly States"[166] in practice, recent experience has shown that assurances against torture may be breached, and therefore "where there is substantial evidence that a country practises or permits torture in respect of certain categories of prisoners, guarantees may not satisfactorily reduce [the risk]".[167] The Commission concluded that in such circumstances Council of Europe states should not rely on assurances against torture.[168]

129. The evidence we have heard in this inquiry, and our scrutiny of the Memoranda of Understanding agreed between the Government and the Governments of Libya, Lebanon and Jordan, have left us with grave concerns that the Government's policy of reliance on diplomatic assurances could place deported individuals at real risk of torture or inhuman and degrading treatment, without any reliable means of redress. We are very concerned that reliance on the good faith of Governments which are known to use, tolerate or be unable to prevent torture in breach of international obligations, is simply not a sufficient guarantee to protect against torture, which of its nature is a clandestine practice, takes place often without official authorisation and may be very difficult to detect. In our view, the recent cases of Ahmed Agiza and Maher Arar demonstrate this danger: both were tortured, one in Egypt, the other in Syria, following their deportation to those countries on the basis of assurances that they would not be tortured. As those unfortunate cases show, the consequences for the individuals concerned are so grave that this is a risk which the UK should not be prepared to take.

130. Reliance on diplomatic assurances also has a second, less immediate, but nonetheless deeply corrosive effect. The pursuit of bilateral agreements in relation to torture undermines the multilateral framework of the UN and other treaty bodies concerned with the eradication of torture. At a time when the universal and absolute prohibition on torture needs more than ever to be supported and reaffirmed, the use of diplomatic assurances against torture undermines that universal legal prohibition, and presupposes that the torture of some detainees is more acceptable than the torture of others. In thus undermining the universal legal prohibition on torture, it risks damaging the validity and effectiveness of international human rights law as a whole.

131. We therefore agree with the UN Special Rapporteur on Torture, the European Commissioner for Human Rights and others that the Government's policy of reliance on diplomatic assurances against torture could well undermine well-established international obligations not to deport anybody if there is a serious risk of torture or ill-treatment in the receiving country. We further consider that, if relied on in practice, diplomatic assurances such as those to be agreed under the Memoranda of Understanding with Jordan, Libya and Lebanon present a substantial risk of individuals actually being tortured, leaving the UK in breach of its obligations under Article 3 UNCAT, as well as Article 3 ECHR. We are also concerned that Memoranda of Understanding lack enforceable remedies in an event of a breach of the terms of the Memoranda.

Detention of those being held pending deportation

132. A further serious issue arising from the policy of seeking deportations with assurances is the continuing detention of individuals while lengthy negotiations are being pursued with other Governments. Deportation action against thirty persons on grounds of national security was commenced in 2005, including nine of those originally detained under Part IV of the Anti-terrorism Crime and Security Act 2001, with all of them initially being detained under immigration powers pending negotiation of diplomatic assurances. By the end of that year, six people had been released, 3 had been remanded in custody on criminal charges, 6 released on bail, 3 granted bail on principle and 12 remained in immigration detention.[169] As we noted in our recent Report on the renewal of the control orders regime,[170] it appears that those released on Immigration Act bail have been released on conditions amounting to "full house arrest", in other words, subject to restrictions which would amount to a derogating control order if imposed under the control orders legislation.

133. In addition to our concern that such detention, or house arrest, pending the conclusion of memoranda of understanding is likely to be or become incompatible with Article 5 ECHR,[171] because there must be a realistic prospect of deportation within a reasonable time,[172] there is a risk that such continued detention (whether in custody or under house arrest) may, for some of the detainees, amount to inhuman and degrading treatment if it is of indeterminate and prolonged duration.[173] As we noted in our Report on the renewal of control orders, the Council of Europe's Committee on the Prevention of Torture (CPT), in a visit to the UK in November 2005, visited certain individuals being detained with a view to being deported, as well as others subject to control orders.[174] We remain concerned. However we understand that the CPT will report imminently on that visit and we look forward to the Government promptly requesting the publication of the Committee's Report.