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Behind Closed Doors: Problems Surrounding Diplomatic Assurances Against Torture and the Way Forward


Introduction

In the wake of the 9/11 attacks, the international landscape underwent various changes with increased global cooperation on issues of counterterrorism and security. Diplomatic Assurances against torture are one such practice that States have come to rely upon while dealing with issues of deportation and transfer procedures. Diplomatic Assurances are promises or agreements between States that the individual or collective being returned to the receiving State would not be subjected to torture or ill-treatment. These Assurances are often in the form of oral promises or non-binding agreements that have often been referred to as a means for States to circumvent the international ban on torture and their non-refoulment obligations. While various international organisations have deemed Diplomatic Assurances as insufficient safeguards or “empty promises” and have called for a complete prohibition on their use, States have continued to rely upon them to deal with security threats. This blog addresses this tussle between States’ want to safeguard their people from security threats and the need to respect fundamental human rights by proposing an alternate framework with transparent procedures wherein Diplomatic Assurances may be utilized as a reliable tool.


The Problems with Diplomatic Assurances

With increased emphasis on counter-terrorism measures, a frequent justification for Diplomatic Assurances is Security Council Resolution 1373 which provides for States’ obligation to adopt measures to combat terrorism, including denying safe haven to those involved in terrorist activities. However, it is important to note that Security Council Resolution 1456specifies that the counterterrorism measures adopted by States must be in line with human rights law, international law, humanitarian law, and refugee law. The principle of non-refoulment lies at the heart of international refugee law and human rights law and dictates that no refugee or asylum seeker shall be removed, extradited, deported, or returned to a territory where their life or freedom may be under threat. The principle has been formally enshrined under Article 33(1) of the Refugee Convention as well as in the Convention Against Torture (CAT). Further, the prohibition of torture is a peremptory norm and cannot be subjected to any derogations or limitations.


Bilateral arrangements in the form of Diplomatic Assurances allow States to circumvent their non-refoulment obligations, water down the absolute prohibition of torture, and corrode international human rights law of its content. Assurances are often sought by a State where an individual may be at risk of torture thus, the very demand for Diplomatic Assurance is an acknowledgement that torture is commonly and systemically exercised in the receiving State. Such agreements cannot be looked at in isolation, political considerations and pressure may play a major role in States accepting dubious Assurances. The circumstances in the receiving State and the control exercised by the assuring authority are also valid considerations, Assurances cannot be relied upon when acts of torture are endemic in the receiving State or the assuring authority lacks effective control upon its security forces.


Governments, within the terms of their agreements, often include various post-return monitoring mechanisms as safeguards to ensure the well-being of individuals being transferred. However, given that acts of torture are often performed discreetly and by individuals trained in employing clandestine torture techniques, such terms are often seen as unreliable and ineffective. Psychological torture techniques are also often employed which can be difficult to detect. Further, several independent organisations and monitors have been reluctant to participate in post-return monitoring procedures given that it leads to the creation of a “two-class system” in countries of return wherein transferred individuals may be spared from acts of torture and ill-treatment while others may continue to be subjected to such atrocities. Logistical challenges may also arise while implementing post-return monitoring including the appointment of independent organisations and experts skilled in detecting signs of torture, ensuring the regularity of visits and the amount of access granted to monitors. An ineffective post-return monitoring mechanism can lead to far-reaching repercussions as seen in the case of Agiza and al-Zari, two Egypt nationals who were seeking asylum in Sweden. Upon their transfer to Egypt based on a Diplomatic Assurance, the two were subjected to severe torture and ill-treatment whereas the Swedish officials failed to conduct private visits, lacked the expertise to detect torture, and conducted all visits with prior notice to the Prison Director.


Diplomatic Assurances may be in the form of formal agreements or memorandum of understandings, but are not legally binding thus, due to lack of enforceability they fail to act as a sufficient safeguard. Given that assuring States are habitual breachers of binding international obligations, it is unlikely that they would comply with non-binding agreements. Detainees are often also denied the opportunity to scrutinize the agreements entered into let alone challenge them. Further, once Assurances are breached by the receiving State and detainees are subjected to torture, victims are denied legal redressal and access to lawyers. Additionally, to avoid accountability, States may use vague terms or merely reiterate their existing obligations while drafting their Assurances.  


The Way Forward

The above section highlights the many issues surrounding Diplomatic Assurances against torture however governments around the world have continued to rely upon this mechanism. Given this existing friction, an enhanced method of Diplomatic Assurances may be undertaken and incorporated within CAT to make these Assurances more reliable, effective, and transparent rather than opting for a complete ban upon them, which will only result in increased clandestine agreements between States.


While entering into agreements, it should be upon the sending State to conduct a comprehensive risk assessment and take into consideration, not only the risk of torture to the individual but also any patterns of human rights violations in the receiving state and its record with Assurances. Thus, Diplomatic Assurances should not be relied upon in cases where there is a real risk to the detainee based upon the individual risk assessment or the receiving States’ past behaviour. Once the adequacy of the Assurance is ensured, for it to be effective and reliable, it must meet certain thresholds. It must be in the form of a legally binding instrument issued by competent authorities thus, ensuring compliance and enforceability. Further, the assuring authority must exercise effective control over security forces in the receiving State to ensure continuous compliance with the Assurance. It is also important to ensure that those under detention are given sufficient time to scrutinize the terms of the Assurance and are able to exercise effective remedies in the sending state including access to lawyers.


Similarly, upon transfer to the receiving state the detainee must be provided access to all domestic remedies available to any other citizen and post-return monitoring must commence from the moment of return to avoid the lapses seen in the Egypt-Sweden case. Independent monitors should be appointed to conduct regular or unannounced visits and the receiving State must cooperate including providing complete access and total privacy with the detainee. Further, to avoid the use of discreet torture techniques, detainees must undergo regular physical and psychological examinations by independent trained professionals. All interrogations in the receiving state should mandatorily be in the presence of a lawyer and be recorded. For additional safeguards, ratification to the Optional Protocol to the CAT which establishes an inspection system for places of detention may be mandated as a condition precedent for the receiving State.


The terms of the Assurance must clearly define acts constituting torture and provide for an “automatic return” of the individual in case of any breach of Assurance or exposure to torture. Additionally, the agreement must provide for reparations to the detainee in case of any breach of terms or exposure to torture including reasonable compensation, restitution, and guarantee of non-recurrence. Furthermore, the terms of the Assurance must allow parties to refer a case to the Committee Against Torture in case of any breach or dispute arising out of the instrument. Thus, allowing for the enforceability of such Assurances and effective redressal at an international level to both parties.


Conclusion

Diplomatic Assurances are a contentious tool, yet they are seen as indispensable by States. The proposed model is rooted in the high scrutiny of the assuring State to ensure the ban on torture is not circumvented. Only after meticulous risk assessment can States enter into agreements in the form of legally binding instruments issued by competent authorities. Agreements in compliance with the proposed framework, which clearly lay down the terms of the assurance along with independent monitoring post-transfer would ensure compliance with human rights standards and global best practices. The framework also provides additional layers of protection in the form of automatic return in breaches, the Committee Against Torture allowing for dispute settlement, and access to remedies for those detained in both States. By implementing such a framework and incorporating Diplomatic Assurances within the international human rights corpus, the delicate balance between security and human rights can be maintained while upholding individual sanctity and ensuring compliance with States’ international obligations.





Author: Rahil Arora

University and Year : Jindal Global Law School, 4th Year

Programme: BBA LLB (Hons.)


Co-Author: Vidushi Sehgal

University and Year : Jindal Global Law School, 4th Year

Programme: BBA LLB (Hons.)

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