governments in order to ensure humane treatment. 139 The UN Committee against Torture and Human Rights Committee have also found in cases where the receiving state has a record of torture, assurances must include more than mere promises. 140 Though it may help protect detainees’ rights, monitoring alone is also not sufficient to meet states’ legal obligations, and experience has shown its effectiveness can vary widely. Detainee monitoring must be conducted in a rigorous manner that includes expert personnel and free, unfettered, and confidential access to detainees. In Alzery, for example, the UN Human Rights Committee held that the monitoring mechanism included in diplomatic assurances between Sweden and Egypt was inadequate because Swedish embassy staff monitoring started five weeks after the detainee’s transfer, thus neglecting a long, critical period of time during which the detainee was at highest risk of torture. 141 The proposed monitoring scheme was also inadequate because embassy staff did not insist on private interviews with detainees, and there were no forensic and medical experts present during meetings with detainees. 142 The transfer of any detainee from the DFIP to Pakistan or to any other state must be in compliance with non-refoulement. Experience, case law, and authoritative interpretations of treaty law clearly establish that diplomatic assurances that constitute no more than mere promises or statements of commitment to respect detainees’ rights are insufficient to meet states’ legal obligations. Both the U.S. and Pakistani governments must do more to ensure detainees’ rights are protected and make certain that whatever measures are adopted are adequate to ensure that no detainee is subjected to a real risk of torture or other cruel, inhumane or degrading treatment. b) Mitigating the risk of torture or ill-treatment upon return To satisfy its non-refoulement obligation when transferring detainees to Pakistan, the United States must confront Pakistan’s record of torture and ill-treatment of detainees, particularly those held for national security reasons. Though humane treatment is a serious concern, there are factors specific to detainees’ cases and the nature of the alleged threats that they pose that may substantially mitigate the risk of abuse they would face in Pakistan or in Pakistani custody. There are also effective, concrete measures that the United States and Pakistan can take to ensure transferred detainees’ rights are respected. 139 Othman at 77. Agiza at 13.4; Alzery at 11.5. 141 Alzery at 11.5. Individuals held without the knowledge or access to relatives or legal counsel, are particularly vulnerable. This includes post-transfer, pre-trial and incommunicado detention. See “General recommendations of the Special Rapporteur on torture”, http://www.ohchr.org/Documents/Issues/SRTorture/recommendations.pdf, p. 2; Open Society Justice Initiative, “Pretrial detention and torture: why pretrial detainees face the greatest risk”, 2011, http://www.opensocietyfoundations.org/sites/default/files/pretrial-detention-and-torture-06222011.pdf, ps. 28-44. 142 Ibid. 140 37