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
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