The risk of torture

International Criminal Law ReviewVolume 11 (2011)International Criminal Law ReviewAims & ScopeIn-depth analysis of the problems of international criminal law is one of the most pressing problems in the international legal arena. T raditionally, international tribunals have had to operate on the basis of extrapolations from international public law, general principles of law and humanitarian law. Th e International Criminal Court’s Statute, Rules of Procedure and Elements of Crimes will undoubtedly give rise to many questions of interpretation. Th is Review was established to serve as a forum dedicated to the specifi c criminal law aspects of international criminal law. As it will be helpful to understand the societal background and effects of the law, the Review will also carry contributions relating to criminological, sociological and historical issues within the ambit of international criminal law. Editor-in-ChiefMichael BohlanderDurham Law School, University of Durham, 50 North Bailey, Durham DH1 3ET, UK, tel: +44-191-334-2812, fax: +44-191-334-2801, e-mail: michael.bohlander@Notes and Comments EditorMohamed Elewa BadarBrunel Law School, Uxbridge, UK, e-mail: mohamed.badar@Criminology and Sociology EditorDawn L. RotheOld Dominion University, Norfolk, VA, USA, e-mail: drothe@Book Review EditorAoife O’DonoghueDurham Law School, University of Durham, Durham, UK, e-mail: aoife.o’donoghue@ Editorial BoardHirad Abtahi (Th e Hague, Th e Netherlands)Diane Marie Amann, (Davis, CA, USA)Kai Ambos (Göttingen, Germany)Antonis Antoniadis (Durham, UK )Anabela Atanásio (Th e Hague, Th e Netherlands)Ilias Bantekas (London, UK)Roman Boed (Th e Hague, Th e Netherlands)Albin Eser (Freiburg, Germany)John Hocking (Th e Hague, Th e Netherlands)Bing Bing Jia (Beijing, PR China)Stephan Kirsch (Frankfurt, Germany)André Klip (Maastricht, Th e Netherlands)Claus Kreß (Cologne, Germany)Berend Keulen (Groningen, Th e Netherlands)Adel Maged (Cairo, Egypt)Timothy L.H. McCormack (Melbourne, Australia)Guénaël Mettraux (Ambra (AR), Italy)Susan Nash (London, UK)Alain Pellet (Paris, France)Christian Rohde (Th e Hague, Th e Netherlands)William A. Schabas (Galway, Ireland)Wolfgang Schomburg (Berlin, Germany)Ulrich Sieber (Freiburg, Germany)Göran Sluiter (Amsterdam, Th e Netherlands)Carl-Friedrich Stuckenberg (Saarbrücken, Germany)Christine van den Wyngaert (Th e Hague, Th e Netherlands)Richard J. Wilson (Washington, DC, USA)International Criminal Law Review (ISSN 1567-536X, E-ISSN 1571-8123) is published 5 times a year by Martinus Nijhoff Publishers, an imprint of Koninklijke Brill NV, PO Box 9000, 2300 PA Leiden, Th e Netherlands, tel +31 (0) 71 5353500, fax +31 (0) 71 5317532.International Criminal Law ReviewVolume 11 (2011)Leiden / BostonNote to ContributorsTh e preferred submission method to the International Criminal Law Review is by e-mail to the Editor-in-chief: michael.bohlander@. Manuscripts will be refereed by the members of the editorial board, and acceptance will be by e-mail. 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No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, and Danvers, MA 01923, USA.Fees are subject to change.Printed in The Netherlands on acid-free paper.International Criminal Law Review 11 (2011) 1–48© Koninklijke Brill NV , Leiden, 2011 DOI 10.1163/157181211X543911brill.nl/iclaInternational Criminal Law ReviewTh e Risk of T orture as a Basis for Refusing Extradition and the Use of Diplomatic Assurances to Protect againstTorture after 9/11J effrey G.Johnston * S enior Counsel, Criminal Law Section, Litigation Branch, Department of Justice, Canada Abstract D iplomatic assurances have become increasingly common since 9/11 as conditions of removing suspected terrorists to other countries, including through the process of extradition, in response to claims that these individuals will be tortured following their return. Assurances have sometimes been relied upon by states to justify the removal of persons to countries where these individuals have been tortured despite the existence of assurances. Focusing on the extradition context, this article will explore the debate surrounding the use of diplomatic assurances to protect against tor-ture. Th e article will demonstrate that the use of assurances to address a risk of torture is permissible under international law. With a view to strengthening human rights protection, the article will propose the establishment of minimum standards for the use of assurances and common criteria to be applied in assessing whether assurances can be viewed as suffi ciently reliable in protecting against a risk of torture.Keywords e xtradition; n on-refoulement ; diplomatic assurances; international human rights law; international criminal law; risk of torture; diplomatic assurances and procedural fairnessI n the post-9/11 world, the United States must make sure we protect our people and our friends from attack. One way to do so is to arrest people and send them back to their country of origin with the promise that they won’t be tortured. Th at’s the promise we receive. Th is country does not believe in torture. U .S. President George W . Bush, 16 March 2005 Th e circumstances of our national security have now self-evidently changed and we believe we can get the necessary assurances from the countries to which we will return the deportees against their being subject to torture. B ritish Prime Minister T ony Blair, 5 August 2005 *)B.A. (Hons.) (Western Ontario), LL.B. (Victoria), M.St. (International Human Rights Law) (Dist.) (Oxon). Th e author wishes to express his thanks to Professor Patrick Th ornberry and Professor Joanna Harrington for their helpful comments in reviewing earlier drafts of this article. Th e views expressed in this article are those of the writer, and all errors remain his.2 J.G. Johnston / International Criminal Law Review 11 (2011) 1– 481.IntroductionO n 18 September 2006, the Arar Commission released its fi ndings 1in relation to Maher Arar who was removed to Syria from the United States on the strength of diplomatic assurances obtained from Syria by the American government that Mr. Arar would not be tortured. Syrian authorities interrogated Mr. Arar for ten months as a suspected member of Al-Qaeda before he was released without charge.Th e Arar Commission found that, despite assurances to the contrary, Mr. Arar was tortured while detained in Syria. Th e Commission concluded that this fi nding is ac oncrete example … that assurances from totalitarian regimes that they will not torturedetainees are of no value and should not be relied upon for the purposes of article 3 of the Convention against T orture and Other Cruel, Inhuman or Degrading T reatment or Punishment. 2,3Th e experience of Maher Arar brings into sharp focus the debate over the legiti-macy of diplomatic assurances as a safeguard against torture after 11 September 2001. Th ere are growing concerns that the absolute prohibition against torture is being compromised in the name of the fi ght against terrorism. Especially dis-concerting to the human rights community is the increased resort by states to assurances against torture to justify returning terrorist suspects to other countries;a practice the UN High Commissioner for Human Rights has commented “threatens to empty international human rights law of its content.” 4Th is article will consider the use of diplomatic assurances to protect against torture in the extradition of suspected terrorists after 9/11. Th e fi rst section exam-ines the extent to which the prohibition against torture limits the ability of states to extradite. Th is section will explore the history and legality of using assurances to address torture concerns in the decision to extradite. Th e second section is a critical analysis of this practice from the perspectives of the human rights community. Th e final section proposes the establishment of minimum stan-dards for obtaining assurances against torture and common criteria for assessing whether assurances are suffi ciently reliable in preventing torture with a view to1) Commission of Inquiry into the Actions of Canadian Offi cials in Relation to Maher Arar, R eport of the Events Relating to Maher Arar – Factual Background(Ottawa: Minister of Public Works and Government Services, 2006).2) Entered into force 26 June 1987, 1465 U.N.T.S. 85 (hereinafter “CAT”).3) Commission of Inquiry into the Actions of Canadian Offi cials in Relation to Maher Arar, s upra note 1, p. 176.4) Louise Arbour, ‘No exceptions to the ban on torture’, Th e International Herald Tribune, 6 December 2005.J.G. Johnston / International Criminal Law Review 11 (2011) 1– 483 strengthening human rights protection while ensuring the prosecution and pun-ishment of those responsible for terrorist acts.2.Diplomatic Assurances to Protect against Torture2.1. Th e Obligation of Non-refoulement as a Basis for Refusing ExtraditionE xtradition is “the surrender by one nation to another of an individual accused or convicted of an off ence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.” 5Historically, human rights conditions in requesting states played no part in the decision to extradite. Arguments that extradition should be refused on the basis that a person sought would be subject to mistreat-ment if returned to a requesting state were met with the response that because “the alleged violation of the requested person’s fundamental rights will take place only a fter his extradition … the responsibility at stake is that of the requesting State, not that of the requested State.” 6Under the traditional model of extradi-tion and human rights, requested states were “restricted from inquiring into events that may occur in the requesting state following extra d ition” 7;the overrid-ing consideration was the discharge of interstate responsi b ilities. 8I n 1974, Bassiouni opined that “[t]he emergence of the individual as a recog-nized participant in the processes of extradition and the applicability of interna-tionally protected human rights are likely to curtail if not eliminate the rule of non-inquiry.” 9Commentators began to challenge the dominant view that allega-tions of post-extradition mistreatment in requesting states were beyond the juris-diction of requested states, some writers even going so far as to advocate for the creation of “humanitarian exceptions” to extradition. 10O ver time, domestic courts started to suggest that the rule of non-inquiry into human rights conditions in requesting states might require revisiting if the decision to extradite would subject a person sought to treatment “antipathetic5)T erlinden v. A dams, 184 U.S. 270 (1902), p. 289.6)Christine Van den Wyngaert, ‘Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box?’, (1990) 39 I nt’l & Comp. L.Q., pp. 759-760.7)T racey Hughes, ‘Extradition Reform: Th e Role of the Judiciary in Protecting the Rights of a Requested Individual’, (1986) 9 B.C. Int’l & Comp. L. Rev., p. 295.8)John Quigley, ‘Th e Rule of Non-Inquiry and the Impact of Human Rights on Extradition Law’, (1990) 15 N.C.J. Int’l L. & Com. Reg., p. 401.9)M. Cherif Bassiouni, I nternational Extradition and World Public Order(New York: Oceana Publications, 1974), p. 566.10) Leslie Anderson, ‘Protecting the Rights of the Requested Person in Extradition Proceedings: An Argument for a Humanitarian Exception’, (1983) 4 M ich. YBI Legal Stud., p. 153.4 J.G. Johnston / International Criminal Law Review 11 (2011) 1– 48to a … court’s sense of decency.” 11Eventually, it was held that extradition should be refused if it would result in a situation that would be “simply unacceptable” or “shocking to the conscience” of a requested state, including the infl iction of torture. 12Th e fi rst explicit recognition in an international human rights instrument that human rights conditions in a requesting state could constitute a basis for refusing extradition occurred in 1987 with the enactment of the CAT. Article 3(1) of the CAT provides that “[n]o State Party shall expel, return (“ r efouler”) 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.” 13Th e absolute and non-derogable nature of the prohibition against torture is reinforced by Article 2(2) which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justifi cation of torture.” 14 Although non-binding, the UN Model T reaty on Extradition 15lists among its mandatory grounds for refusing extradition “[i]f the person whose extradition is requested has been or would be subjected in the requesting State to torture.” 16 Th e UN Human Rights Committee has also interpreted the prohibition against torture contained in Article 7 of the International Covenant on Civil and Political Rights 17as requiring that “State parties must not expose individuals to the danger of torture … upon return to another country by way of their extradition.” 18I n 1989, the European Court of Human Rights in S oering v. U nited Kingdom19 held that the human rights obligations of a requested state stand to be engaged by its decision to extradite a person sought, despite the fact that any potential mis-treatment would occur in a requesting state. Th e Court stated:t he decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture … in the requesting country. 2011) G allina v. F raser, 278 F.2d 77 (2d Cir. 1960), p. 79.12) C anada v. S chmidt, [1987] 1 S.C.R. 500, p. 522; and U nited States v. A llard, [1987] 1 S.C.R. 564, p. 572.13) CAT, s upra note 2, Article 3(1).14) I bid., Article 2(2).15) UNGA Res. 45/116 (14 December 1990) UN Doc. A/RES/45/116.16) I bid., Article 3(f).17) entered into force 23 March 1976, 999 U.N.T.S. 171 (hereinafter “ICCPR”).18) UNHRC, ‘General Comment 20 (Article 7)’ in C ompilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies(1992) UN Doc. HRI/GEN/1, p. 30, para. 9.19) (1989), 11 E.H.R.R. 439 (hereinafter “ S oering”).20) I bid., para. 91.J.G. Johnston / International Criminal Law Review 11 (2011) 1– 485 S oering marked the dawn of modern extradition law under which the decision to extradite must take into account human rights considerations. In this way, S oering recognized “that a treaty-based human rights obligation can also form the basis for holding a sending state responsible under international law for any foreseeable violations of an individual’s rights in the requesting state.” 21I n 2001, the Supreme Court of Canada endorsed the S oering approach to state responsibility for human rights violations engaged by the decision to extradite in U nited States of America v. B urns: 22Th e “responsibility of th[e] State” is certainly engaged under the C harter by a ministerial deci-sion to extradite without assurances. While the Canadian government would not itself infl ict capital punishment, its decision to extradite without assurances would be a necessary link in the chain of causation to that p otential result. 23I n C hahal v. U nited Kingdom24, the European Court of Human Rights con-sidered the reach of the human rights obligations of a sending state where the person to be removed is a suspected terrorist who faces possible torture in a receiv-ing state. Th e Court held that the absolute prohibition against torture remains non-derogable, even in the anti-terrorism context. It stated that:Th e Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture … irrespective of the victim’s conduct.I n 2008, in S aadi v. I taly25, the European Court of Human Rights reaffi rmed this view. In doing so, it declined the invitation by some member states, namely, Italy and the United Kingdom, asking the Court to reconsider its earlier decision in C hahal holding that the obligation of n on-refoulement remains absolute and non-derogable even in the case of terrorism. 26Th e UN Committee against T orture has also stated that “[t]he nature of the activities in which the person concerned engaged cannot be a material consider-ation when making a determination under article 3 of the Convention.” 27A ccordingly, a requested state would be acting contrary to its obligations under Article 3 of the CAT and Article 7 of the ICCPR in extraditing a person sought21) Joanna Harrington, ‘Th e Role for Human Rights Obligations in Canadian Extradition Law’, (2005) 43 C anadian Y.I.L., p. 47.22) [2001] 1 S.C.R. 283 (hereinafter “ B urns”).23) I bid., para. 54.24) (1996), 23 E.H.R.R. 413 (hereinafter “ C hahal”).25) Application No. 37201/06, 28 February 2008 (hereinafter “ S aadi”).26) I bid., paras. 137-141.27) T apia Paez v. S weden,Communication No. 39/1996 (28 March 1997) UN Doc. CAT/C/ 18/D/39/1996, para. 14.5.6 J.G. Johnston / International Criminal Law Review 11 (2011) 1– 48to a requesting state where there are substantial grounds for believing that the person would be in danger of being tortured. Signifi cantly, that the person to be extradited is a suspected terrorist who represents a threat to the national security of the requested state is irrelevant to this determination.A s the Arar Commission noted, “the prohibition against torture in interna-tional law is so fundamental that it has reached the level of a j us cogens norm – a peremptory norm, which overrides any contradictory customary international law, treaty law or state practice.” 28Th e International Criminal T ribunal for the former Yugoslavia has also recognized that “[t]he fact that torture is prohibited by a peremptory norm of international law … serves to internationally delegitimise any legislative, administrative or judicial act authorizing torture.” 29Th us, a state that removes an individual to a real risk of torture violates the prohibition against torture. Th e current state of international human rights law prohibiting the r efoulement of suspected terrorists can be summarized as follows:I nternational law uniformly provides that regardless of whether the transfer of a person occursas part of an extradition request and regardless of any exceptional circumstances such as eff orts to combat terrorism or another threat against national security, the anti-torture and n on-refoulement principles would be violated if, as a result of such transfer, the person could be subjected to torture. 302.2. Th e Return of Suspected T erroristsTh e challenges to human rights protection posed by state responses to terrorism derive from the fact that the rule of law limits the ability of states to counter the terrorist threat. It is the case that “human rights norms constrain state responses to terrorism.” 31Th e perception of human rights as constituting a barrier to anti-terrorism eff orts has engendered “the notion that the international human rights law framework necessarily complicates the fi ght against terrorism.” 32Most trou-bling since 9/11 is the observation that “[a]t the dawn of the twenty-fi rst century we are hearing fresh suggestions that the authorities should be allowed to resort to torture, now for the purpose of dealing with suspected terrorists.” 33E ven countries closely aligned with the international human rights movement are falling prey to what the UN High Commissioner for Human Rights has28) R eport of the Events Relating to Maher Arar – Analysis and Recommendations, supra note 1, p. 52.29) P rosecutor v. F urundzija, Case No. IT-95-17/1-T, Judgment 10 December 1998 (I.C.T.Y. (T.C.)), para. 148.30) Association of the Bar of the City of New York & Center for Human Rights and Global Justice, T orture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”(New York: ABCNY & NYU School of Law, 2004) (hereinafter “ T orture by Proxy”), p. 84.31) Joan Fitzpatrick, ‘Speaking Law to Power: Th e War Against T errorism and Human Rights’, (2003) 14 E.J.I.L., p. 243.32) Paul Hoff man, ‘Human Rights and T errorism’, (2004) 26:4 H um Rts. Q., p. 951.33) John H. Langbein, “Th e Legal History of T orture”, in Sanford Levinson, ed., T orture: A Collection (Oxford: Oxford University Press, 2004), p. 93.called the “new normal.” 34Human Rights Watch has characterized the attitude of established democracies to torture post-9/11 in the following terms: “One involves ongoing support to anti-torture eff orts, through training and treaties. Th e other is directed at bending and weakening the torture ban in the context of countering terrorism.” 35I n December 2001, the European Commission released a working paper sug-gesting that the legal obstacles to the extradition or removal of suspected terrorists created by the absolute and non-derogable nature of the prohibition against r efoulement might require revisiting in view of the events of 9/11. Th e Commission stated:F ollowing the 11th September events, the European Court of Human Rights may in thefuture again have to rule on questions relating to the interpretation of Article 3, in particular on the question of how there can be a “balancing act” between the protection needs of the individual, set off against the security interests of a state. 36A nother manifestation of the “new normal” is the proliferation since 9/11 in the state practice of removing suspected terrorists to other countries on the strength of diplomatic assurances that these individuals will not tortured. 37 As one writer has commented:n umerous governments, instead of pursuing and trying foreign suspects themselves, prefer to transfer them to their country of origin or to a third country, despite the risk of torture. Th us, on the fringes of international law, the practice of ‘diplomatic assurances’ has developed. Th is highly contestable practice … illustrates the diffi culties arising from the internationalization of terrorism and the insuffi ciency of purely national responses. 38S ince 9/11, the United States, the United Kingdom, Canada, Germany, Austria, Sweden, the Netherlands and Russia have relied on assurances against torture to permit the return of persons to T urkey, China, Algeria, T unisia,34) Lousie Arbour, ‘In Our Name and On Our Behalf’, (2006) 55 I nt’l Comp. L. Q., p. 514.35) Human Rights Watch, D angerous Ambivalence: UK Policy on T orture since 9/11, Number 1, November 2006, p. 1.36) Commission of the European Communities, Commission Working Document, Th e relationship between safeguarding internal security and complying with international protection obligations and instruments(Brussels, 5 December 2001) COM(2001) 743 fi nal, p. 14, para. 2.3.1.37) Human Rights Watch, “Empty Promises:” Diplomatic Assurances No Safeguard Against Torture, April 2004, Vol. 16, No. 4(D) (hereinafter “ E mpty Promises”), p. 3; Human Rights Watch, S till at Risk: Diplomatic Assurances No Safeguard Against T orture, April 2005, Vol. 17, No. 4(D) (hereinafter “ S till at Risk”), p. 3; Human Rights Watch, C ases Involving Diplomatic Assurances Against Torture: Developments since May 2005, January 2007, Number 1 (hereinafter “ D evelopments”), p. 1; Martin Jones, ‘Lies, Damned Lies and Diplomatic Assurances: Th e Misuse of Diplomatic Assurances in Removal Proceedings’, (2006) 8:1 E.J.M.L., pp. 12-13; and Gregor Noll, ‘Diplomatic Assurances and the Silence of Human Rights Law’, (2006) 7 M el. J. Int’l L., pp. 104-105.Uzbekistan, Egypt, Jordan, Morocco, Saudi Arabia, Yemen and Syria through the processes of deportation, extradition and rendition. 39Th is list of receiving states includes numerous countries where the regular practice of torture by state author-ities is well documented. 40In addition, in some instances, as in the case of Maher Arar, assurances have proven ineff ective in preventing torture.Th e marked increase in the use of assurances against torture as part of state responses to terrorism has attracted signifi cant criticism. In September 2004, for-mer UN Special Rapporteur on Torture Th eo van Boven expressed concern over “whether the practice of resorting to assurances is not becoming a politically inspired substitute for the principle of n on-refoulement which … is absolute and non-derogable.” 41His successor, Manfred Nowak, characterized assurances as “unreliable and ineff ective in the protection against torture.” 42Nowak opined that “States cannot resort to diplomatic assurances as a safeguard against torture … where there are substantial grounds for believing that a person would be in danger of being subjected to torture … upon return.” 432.3. D iplomatic Assurances as Conditions of ExtraditionTh e issue that arises in the extradition context is what should happen where a requesting state seeks the return of a suspected terrorist who alleges that he will be tortured if removed to a requesting state. In this situation, “[t]he international obligation n ot to extradite … may confl ict with … the obligation t o extradite.” 44 Reconciling these competing obligations requires consideration of three signifi -cant issues:F irst is the issue of how to protect the fugitive’s basic human rights when it is suspectedthat the requesting state may violate those rights. Second is the problem of how to refuse extra d ition, when refusal is deemed necessary, without initiating a breakdown of cooperative relations between the states involved. Th ird, is the issue of how to ensure that no criminal will be rewarded with immunity from criminal prosecution simply for fleeing the site of the crime. 4539) E mpty Promises;S till at Risk; and D evelopments, supra note 37.40) T orture by Proxy, supra note 30, pp. 8-9; José Alvarez, ‘T orturing the Law’, (2005-2006) 37 C ase. W. Res. J. Int’l L, pp. 210-211; and David Weissbrodt and Amy Bergquist, ‘Extraordinary Rendition and the T orture Convention’, (2005-2006) 46 V a. J. Int’l L., pp. 623-624.41) UNCAT, R eport by Special Rapporteur Th eo van Boven on torture and other cruel, inhuman or degrading treatment or punishment(1 September 2004) UN Doc. A/59/324, para. 31.42) UNCAT, R eport by Special Rapporteur Manfred Nowak on torture and other cruel, inhuman or degrading treatment or punishment(30 August 2005) UN Doc. A/60/316, para. 51.43) I bid.44) Van den Wyngaert, s upra note 6, pp. 761-762.45) Renuka A. Rao, ‘Protecting Fugitives’ Rights While Ensuring the Prosecution and Punishment of Criminals: An Examination of the New EU Extradition T reaty’, (1998) 21 B.C. Int’l & Comp.。