controversial, many States—including the United States—use diplomatic assurances in an attempt to satisfy their non-refoulement obligation. 133 These are non-legally binding promises by the receiving State to respect the transferee’s rights and guarantee humane treatment. States’ increasing reliance on diplomatic assurances to ensure transferred detainees are not subjected to torture has been sharply criticized. 134 The United States’ expansion of counterterrorism and detention operations, initially pursuant to the “war on terror,” led to a significant increase in the use of such assurances. 135 Cases in which transferred detainees were subsequently tortured despite the provision of diplomatic assurances have clearly demonstrated the weakness of such assurances, and the prospect that assurances can be used by states to circumvent the ban on torture. 136 Courts, international bodies, and human rights organizations emphasize that reliance on diplomatic assurances is insufficient to meet a state’s non-refoulement obligation, particularly when sending detainees to states with a record of torture. 137 In evaluating whether or not a real risk of torture exists, the European Court of Human Rights (ECtHR) has found that States may not simply rely on diplomatic assurances and that the weight of assurances depends on the circumstances of the case. 138 In cases where humane treatment concerns exist given the human rights record of the receiving state, the Court has required provisions that went beyond mere promises, and included mechanisms for meaningful oversight of detainee treatment. In Othman the ECtHR found that in addition to Jordan’s commitment to respect its international legal obligations, a MoU signed between the UK and Jordan required the transferred detainee to be presented before a judicial officer promptly after his arrest and for regular visits by an independent body nominated by both UNHCR’s Global Consultations on International Protection, 2003, www.unhcr.org/publ/PUBL/419c75ce4.pdf; Emanuel-Chiara Gillard, “There’s no place like home: states’ obligations in relation to transfers of persons”, International Review of the Red Cross, Volume 90, Number 871, September 2008, http://www.icrc.org/eng/assets/files/other/irrc-871-gillard.pdf. 133 Although non-refoulement is considered a legally binding obligation in international law, the United States does not view it as legally binding outside of the territory of the United States. However, the United States has stated that it complies with non-refoulement as a matter of policy in circumstances where individuals are held outside of the territory of the United States. Furthermore, the United States understands “substantial grounds” in article 3 UNCAT as meaning “more likely than not that the person would be tortured.” See Department of State Legal Adviser John Bellinger, “Testimony Before the House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight”, 10 June, 2008, available at http://www.fas.org/irp/congress/2008_hr/rendition.pdf, p. 8; Section 1242(a) Foreign Affairs Reforms and Restructuring Act 1998. 134 “UNHCR Note on Diplomatic Assurances and International Refugee Protection”, August 2006, para. 2 135 Human Rights Watch, “Torture and non-refoulement: Briefing to the 60th session of the UN Commission on Human Rights”, 29 January, 2004, http://www.hrw.org/news/2004/01/28/torture-and-non-refoulement; Human Rights Watch, “Still at risk: Diplomatic assurances no safeguard against torture”, April 2005, p. 3; Columbia Law School Human Rights Institute, “Promises to keep: diplomatic assurances against torture in US terrorism transfers”, December 2010, p. 8; Open Society Justice Initiative, “Globalizing torture: CIA secret detention and extraordinary rendition”, February 2013, p. 7. 136 Human Rights Watch, “Empty Promises: diplomatic assurances no safeguard against torture”, April 2004 p. 23; Human Rights Watch, “Still at risk”, p. 22, 80. 137 Human Rights Watch, “Empty Promises”, p. 4-5; Human Rights Watch, “Still at risk”, p.27 ; REDRESS, “Nonrefoulement under threat”, Seminar proceedings, 16 May, 2006; Open Society Justice Initiative, “Globalizing torture”, p. 7, 9, 15, 20; Chahal at 97-105; Saadi at 147; Agiza at 13.3; Alzery at 11.3; Othman at 187. 138 Chahal at 97-105; Saadi at 147; Othman at 187. 36