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DIPLOMATIC ASSURANCES AGAINST TORTURE AND ILL TREATMENT EUROPEAN

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					     DIPLOMATIC ASSURANCES AGAINST
       TORTURE AND ILL TREATMENT:
    EUROPEAN COURT OF HUMAN RIGHTS
            JURISPRUDENCE


                               Alice Izumo


                              INTRODUCTION

        This Note examines the jurisprudence of the European Court
of Human Rights (ECTHR) regarding diplomatic assurances and
highlights implications it offers for the United States. Section I
places the Court’s current position in recent historical context,
reviewing the development of European assurances policy in the
years leading up to 2008, from assurances against the death penalty
in extradition cases involving non-political crimes to assurances
against torture in cases involving terrorism. Section II outlines the
Court’s current position as articulated in Saadi v. Italy in 2008 and
in subsequent cases. The Court has established that (1) The
judiciary, not only the executive, is competent to assess diplomatic
assurances; (2) When assessing diplomatic assurances in a particular
case, the human rights record of the receiving country should be
given the most weight, with some weight given to the identity of the
provider of the assurances, the national security profile of the
individual subject to transfer, the possibility of post-transfer
monitoring, and the content and consistency of the assurances. Some
countries have such poor human rights records that virtually no
assurances would be sufficient. The European experience should



        B.A., Yale University (2007); J.D., Columbia University School of Law
(2011). The author would like to thank the Columbia Human Rights Law Review,
the Human Rights Clinic, Leslie Hannay, Tarek Ismail, Reed Keefe, Lisa Knox,
Kate Stinson, Njoya Tikum and especially Naureen Shah for their tremendous
support and contribution to this note.
234        COLUMBIA HUMAN RIGHTS LAW REVIEW                                [42:233


inform U.S. authorities and advocates seeking to devise a policy that
more effectively assures protection against torture and ill treatment.

 I. HISTORICAL DEVELOPMENT OF EUROPEAN ASSURANCES POLICY

         The European Court of Human Rights’ current position on
diplomatic assurances, outlined in the 2008 case Saadi v. Italy and
discussed in Section II of this Note, is best understood in recent
historical context. This Section describes key developments in the
years leading up to 2008 that likely influenced the Saadi court and
continue to shape the thinking of European policymakers today. The
Court’s current willingness to assess the reliability of diplomatic
assurances against torture in cases involving terrorism—a marked
contrast from U.S. courts’ deference to the political branches1—grew
out of the Court’s custom of assessing diplomatic assurances against
capital punishment in extradition cases involving common (non-
political) crimes. The Court’s present emphasis on the human rights
record of the receiving country—on the practical effect rather than
the text of assurances—stems in large part from the dramatic



   1.     See, e.g., Munaf v. Geren, 553 U.S. 674, 702 (2008) (denying habeas
petitions; noting that the State Department’s determination that Iraqi prison
conditions generally meet international standards for basic prisoner needs is
based on the Executive's assessment of the foreign country's legal system and the
Executive's ability to obtain foreign assurances it considers reliable; and holding
that “[t]he Judiciary is not suited to second-guess such determinations—
determinations that would require federal courts to pass judgment on foreign
justice systems and undermine the Government's ability to speak with one voice
in this area”); Arar v. Ashcroft, 585 F.3d 559, 578 (2d Cir. 2009) (“Should we
decide to extend Bivens [Bivens v. Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) (allowing private actions for damages against
federal officers alleged to have violated constitutional rights)] into the
extraordinary rendition context, resolution of these actions will require us to
determine whether any such assurances were received from the country of
rendition and whether the relevant defendants relied upon them in good faith in
removing the alien at issue. Any analysis of these questions would necessarily
involve us in an inquiry into the work of foreign governments and several federal
agencies, the nature of certain classified information, and the extent of secret
diplomatic relationships. An investigation into the existence and content of such
assurances would potentially embarrass our government through inadvertent or
deliberate disclosure of information harmful to our own and other states.”). But
see Khouzam v. Att’y Gen., 549 F.3d 235, 24953–54 (3d Cir. 2008) (holding that
neither the political question doctrine nor the rule of non-inquiry necessarily bars
judicial review of a federal agency’s decision to remove an alien based on
diplomatic assurances).
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                  235


revelation in 2004-2005 of CIA transfer and detention in Europe and
the failure of assurances to protect individuals in such situations.

A. From Common Crimes and the Death Penalty to Terrorism
   and Torture
         Before diplomatic assurances against torture became a hot
topic in “the war on terror,” European countries utilized diplomatic
assurances primarily in the context of extradition for common (non-
political) crimes.2 In particular, sending countries routinely sought
diplomatic assurances against the death penalty, as capital
punishment has been effectively banned in Europe for decades.
Protocol No. 6 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms, abolishing the death
penalty except for “acts committed in time of war or of imminent
threat of war,”3 was ratified or accepted by 14 Western European
countries by the end of 1989.4 Protocol No. 13 to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature in 2003, removed the exception from
Protocol No. 6 and established an absolute ban on the death penalty.5
Today, these two protocols—and thus de jure abolition of the death
penalty—are in effect in almost all Member States of the Council of
Europe with Russia being the notable exception.6 Moreover, the


   2.     See, e.g., Einhorn v. France, 2001-XI Eur. Ct. H.R. 275, 282 (France
sought assurances against the death penalty from the U.S. for individual
convicted of murder); X. v. Netherlands, App. No. 15216/89 (Eur. Comm’n H.R.
Jan. 16, 1991), http://www.echr.coe.int (Netherlands sought assurances against
the death penalty from Malaysia for individual convicted of drug trafficking);
Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 12 (1989) (U.K. sought
assurances against the death penalty from the U.S. for individual charged with
murder); B. v. France, App. No. 13706/88 (Eur. Comm’n H.R. Dec. 9, 1988),
http://www.echr.coe.int (France requested assurances against the death penalty
from Morocco for individual accused of homicide).
   3.      Protocol No. 6 to the 1950 Convention for the Protection of Human
Rights and Fundamental Freedoms Concerning the Abolition of the Death
Penalty, as Amended by Protocol No. 11, opened for signature Apr. 28, 1983,
Europ. T.S. No. 155, 22 I.L.M. 539 (entered into force Mar. 1, 1985).
   4.      Ratification information is available on the United Nations Treaty
Collection website at http://treaties.un.org/Pages/UNTSOnline.aspx?id=2.
   5.     Protocol No. 13 to the Convention for the Protection of Human Rights
and Fundamental Freedoms Concerning the Abolition of the Death Penalty in all
Circumstances, opened for signature May 3, 2002, Europ. T.S. No. 187, 2246
U.N.T.S. 110 (entered into force July 1, 2003).
   6.      Ratification information is available on the United Nations Treaty
Collection    website    at    http://treaties.un.org/Pages/UNTSOnline.aspx?id=2.
236         COLUMBIA HUMAN RIGHTS LAW REVIEW                                [42:233


death penalty has been abolished de facto, as no execution has been
carried out on the territory of any Council of Europe Member State
since 1997.7
         In addition to violations of Protocols 6 and 13, the death
penalty may give rise to violations of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR)
itself.8 No death sentence may be imposed unless it meets the
requirements       of   procedural     fairness,   non-retroactivity,
nondiscrimination, proportionality, and humane treatment set out in
Articles 6, 7, 14, and 3.9 In the seminal case of Soering v. United
Kingdom, the European Court of Human Rights found that the U.K.
would violate Article 310 of the ECHR by extraditing a murder
suspect to the U.S. because, in his particular circumstances, the
“death row phenomenon” he would experience in the U.S. rose to the
level of treatment prohibited by Article 3.11 As a result of the


European institutions periodically publicly urge Russia to abolish the death
penalty. See, e.g., Eur. Consult. Ass., Abolition of the Death Penalty in All
Member States of the Council of Europe, CM/Del/Dec(2009)1068/4.2E (2009)
available at https://wcd.coe.int/ViewDoc.jsp?id=1528197&Site=CM&BackColor
Internet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
(The Council of Europe Committee of Ministers “reiterated their strong and
urgent call on the Russian Federation, as the only member state which has not
yet abolished the death penalty, to take without delay all the necessary steps to
transform the existing moratorium on executions into de jure abolition of the
death penalty and to ratify Protocol No. 6.”).
   7.     Press Release, European Union, Launching the European Day Against
the     Death      Penalty        (June     19,     2007),    http://europa.eu/rapid/
pressReleasesAction.do?reference=IP/07/850.          Russia    recently     extended
indefinitely its moratorium on the death penalty. Denis Pinchuk, Russian Court
Extends Moratorium on Death Penalty, Reuters, Nov. 19, 2009.
   8.      Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221
(entered into force Sept. 3, 1953) [hereinafter ECHR]. Although Article 2 of the
ECHR permits capital punishment, almost all Council of Europe Member States
have abolished it and are parties to Protocols 6 and 13 to the ECHR. See supra
notes 3–7.
   9.     See Yutaka Arai et al., Theory and Practice of the European Convention
on Human Rights 393–94 (Pieter van Dijk et al. eds., 4th ed. 2006) (discussing
the application of Articles 3, 6, 7, and 14 to the death penalty).
   10.      For discussion of Article 3 of the European Convention on Human
Rights, see infra Part II.
   11.      Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 44 (1989)
(“[H]aving regard to the very long period of time spent on death row in such
extreme conditions, with the ever present and mounting anguish of awaiting
execution of the death penalty, and to the personal circumstances of the
applicant, especially his age and mental state at the time of the offence, the
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                       237


abolition of the death penalty and the characterization of death row
as a potential human rights violation, European countries
considering extradition requests have routinely requested diplomatic
assurances against the death penalty.12 If the assurances are not
provided or are insufficient, national courts and the European Court
of Human Rights have refused extradition.13
        After September 11, 2001, the Court was confronted with
many cases relating to the removal of individuals associated with
terrorism.14 European countries continued to request assurances


applicant’s extradition to the United States would expose him to a real risk of
treatment going beyond the threshold set by Article 3.”).
    12.    See, e.g., Cipriani v. Italy, No. 22142/07, at 2, 8 (Eur. Ct. H.R. Mar. 30,
2010), http://www.echr.coe.int (finding extradition to the U.S. did not violate
Article 3 where the Department of Justice provided Italian authorities with a
note stating that, as the extraditee was not accused of crimes subject to capital
punishment, “the death penalty is not even potentially applicable to [the
extraditee’s] case”); Einhorn v. France, 2001-XI Eur. Ct. H.R. 275, 293, 295
(finding extradition to the U.S. would not violate Article 3 of the ECHR where the
U.S. embassy provided assurances against the death penalty and the District
Attorney in Pennsylvania stated in an affidavit that the prosecution would not,
and could not legally, seek the death penalty); X v. Netherlands, App. No.
15216/89 (Eur. Comm’n H.R. Jan. 16, 1991) (finding no ECHR Article 3 violation
where the Netherlands sought assurances against the death penalty prior to
deporting for an applicant convicted of drug trafficking, and where receiving
country Malaysia indicated that this offense was punishable by the death penalty
but that the applicant would not be prosecuted due to double jeopardy); B. v.
France, App. No. 13706/88 (Eur. Comm’n H.R. Dec. 9, 1988) (noting that France
sought, but did not extradite the applicant to a third country rather than to
Morocco after France repeatedly requested, but Morocco refused to provide,
assurances against the death penalty).
    13.     See, e.g., Corte Cost., 27 giugno 1996, n. 223, 79 Rivista di Diritto
Internazionale 815 (Italy) (refusing extradition to the U.S.); Soering, 161 Eur. Ct.
H.R. (ser. A) at 44–45 (finding that extradition to the U.S. would violate Article 3
of the ECHR).
    14.     See, e.g., Sellem v. Italy, No. 12584/08 (Eur. Ct. H.R. May 5, 2009),
http://www.echr.coe.int (Italy sought to deport applicant who was charged in
Italy, and convicted in absentia in Tunisia, of terrorist activity); Cherif v. Italy,
No. 1860/07 (Eur. Ct. H.R. Apr. 7, 2009), http://www.echr.coe.int (Italy deported
applicant accused of terrorist activity in Italy; following his deportation, applicant
was convicted in Tunisia of terrorist activity); Abdelhedi v. Italy, No. 2638/07
(Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int (Italy sought to deport
applicant convicted of criminal activity related to terrorism by Italian court, even
though his sentence was reduced on appeal due to insufficient evidence of ties to
terrorism); Ben Salah v. Italy, No. 38128/06 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int (Italy sought to deport applicant accused of terrorist
activity); Bouyahia v. Italy, No. 46792/06 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int (Italy sought to deport applicant who was convicted of
238        COLUMBIA HUMAN RIGHTS LAW REVIEW                               [42:233


against the death penalty in extradition cases, not only in those
involving common crimes,15 but also in those involving terrorism.16 In
addition, governments, intergovernmental institutions, and NGOs
turned increasing attention to assurances against torture and ill
treatment in all types of removal cases involving terrorism,
especially after revelations of the CIA’s counterterrorism activities
ignited public debate across Europe.

B. Agiza, Alzery, and CIA Activity in Europe: the Public Failure
   of Diplomatic Assurances
       Beginning with Maher Arar in 2002, a number of cases drew
international attention to CIA counterterrorism programs involving
the transfer of individuals to third countries where they were


falsification of documents and initially accused of terrorist activity); C.B.Z. v.
Italy, No. 44006/06 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int (Italy
sought to deport applicant accused of terrorist activity); Darraji v. Italy, No.
11549/05 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int (Italy sought to
deport applicant who was convicted of criminal activity and initially accused of
terrorist activity); Hamraoui v. Italy, No. 16201/07 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int (Italy sought to deport applicant convicted of aiding
illegal immigration and participating in criminal conspiracy tied to
fundamentalist Islamic groups); O v. Italy, No. 37257/06 (Eur. Ct. H.R. Mar. 24,
2009), http://www.echr.coe.int (Italy sought to deport applicant accused of
terrorist activity); Soltana v. Italy, No. 37336/06 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int (Italy sought to deport applicant accused of terrorist
activity); Ben Khemais v. Italy, No. 246/07 (Eur. Ct. H.R. Feb. 24, 2009),
http://www.echr.coe.int (Italy deported applicant who was convicted in Italy of
criminal activity and convicted in absentia in Tunisia of terrorist activity);
Gasayev v. Spain, No. 48514/06 at 2 (Eur. Ct. H.R. Feb. 17, 2009),
http://www.echr.coe.int (Spain extradited applicants to Russia, where they were
accused of participation in a Chechen terrorist organization); Boumediene v.
Bosnia & Herzegovina, No. 38703/06 (Eur. Ct. H.R. Nov. 18, 2008),
http://www.echr.coe.int (BH transferred applicants accused of terrorist activity to
U.S. custody; applicants were subsequently detained at Guantánamo).
    15.      See, e.g., Cipriani, No. 22142/07 at 2 (U.S. requested extradition of
applicant accused of murder); Koktysh v. Ukraine, No. 43707/07 (Eur. Ct. H.R.
Oct. 10, 2009), http://www.echr.coe.int (Belarus requested extradition of applicant
accused of murder and robbery); Kaboulov v. Ukraine, No. 41015/04 (Eur. Ct.
H.R. Nov. 19, 2009), http://www.echr.coe.int (Kazhakstan requested extradition of
applicant accused of murder).
    16.     See, e.g., Gasayev, No. 48514/06. The extradition of terrorism suspects
to the death penalty has been the subject of considerable academic commentary.
See, e.g., Alan Clarke, Terrorism, Extradition, and the Death Penalty, 29 Wm.
Mitchell L. Rev. 783 (2003); Kathryn F. King, The Death Penalty, Extradition,
and the War Against Terrorism: U.S. Responses to European Opinion About
Capital Punishment, 9 Buff. Hum. Rts. L. Rev. 161 (2003).
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                 239


subsequently detained and tortured.17 The revelation that European
countries participated in these CIA rendition programs caused great
controversy, bringing European public scrutiny upon the practice of
relying on diplomatic assurances to remove individuals associated
with terrorism and the potential failure of this practice to prevent
torture and ill treatment.
        Two cases in particular alerted the public to the participation
of European countries in CIA renditions and the failure of diplomatic
assurances to protect rendered individuals from torture. The
individuals involved, Ahmed Agiza and Mohammed Alzery, had
applied for asylum in Sweden, claiming that they had been tortured
and falsely accused by the Egyptian government.18 After they fled
Egypt, Alzery had been charged and Agiza convicted in absentia of
participation in a forbidden organization that advocated armed
opposition to the government.19 In December 2001, on the same day
that their asylum applications were rejected by the Swedish
government on security grounds, they were transferred from Sweden
to Egypt,20 where they were detained and subjected to extremely
harsh prison conditions, beatings and electric shocks,21 in direct
contravention of diplomatic assurances Egypt had provided to
Sweden.22
       In May 2004, just weeks after photos of U.S. military
personnel abusing detainees at Abu Ghraib prison caused an




   17.     See, e.g., Douglas Jehl & David Johnston, Rule Change Lets C.I.A.
Freely Send Suspects Abroad, N.Y. Times, Mar. 6, 2005, at A1; Daniel J. Wakin,
Tempers Flare After U.S. Sends a Canadian Citizen Back to Syria on Terror
Suspicions, N.Y. Times, Nov. 11, 2002, at A9; La CIA a Transféré des Prisonniers
à des Pays Pratiquant la Torture, Le Monde (Fr.), Mar. 9, 2005, at INT 4; Maher
Arar, un Canadiense de Origen Sirio, Es Hoy un Hombre Libre, El Pais (Spain),
June 25, 2006, at 2.
   18.     Alzery v. Sweden, Communication No. 1416/2005, ¶ 3.2, U.N. Doc.
CCPR/C/88/D/1416/2005 (Human Rights Comm. Nov. 10, 2006); Agiza v. Sweden,
Communication No. 233/2003, ¶¶ 2.1–2.4, U.N. Doc. CAT/C/34/D/233/2003
(Comm. Against Torture May 24, 2005).
   19.     Alzery, Communication No. 1416/2005 ¶ 3.3; Agiza, Communication
No. 233/2003 ¶ 2.3.
   20.      Alzery, Communication No. 1416/2005 ¶¶ 3.10–3.11; Agiza,
Communication No. 233/2003 ¶ 2.5.
   21.     Alzery, Communication No. 1416/2005 ¶ 3.15; Agiza, Communication
No. 233/2003 ¶¶ 2.5–2.8.
   22.      See Alzery, Communication No. 1416/2005 ¶¶ 3.6–3.7; Agiza,
Communication No. 233/2003 ¶ 4.12.
240        COLUMBIA HUMAN RIGHTS LAW REVIEW                             [42:233


international scandal,23 the Swedish television program Kalla Fakta
(Cold Facts) revealed for the first time that the U.S. had been
involved in the transfers of Agiza and Alzery.24 Kalla Fakta cited
anonymous sources who claimed to have been present at Stockholm-
Bromma Airport while masked U.S. agents stripped, restrained,
hooded, drugged, and removed the individuals in a small plane.25
Once the U.S. connection became public, Agiza and Alzery’s story
quickly gained major news coverage around Europe. Their story had
a historical parallel in Europe: the U.K. had been condemned for
subjecting Northern Irish terrorist suspects to similar treatment in
1971.26 Within Sweden, Parliamentary members initiated
investigations into the government’s handling of Agiza and Alzery’s
transfer, although criminal prosecutions did not go forward at that
time.27
       Agiza and Alzery each brought a complaint against Sweden
before the treaty monitoring bodies of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment28 (CAT) and the International Covenant on Civil and




    23.    See Rebecca Leung, Abuse of Iraqi POWs by GIs Probed, 60 Minutes II,
Apr. 28, 2004, http://www.cbsnews.com/stories/2004/04/27/60II/main614063.shtml
(television program that first publicly disclosed photos of abuse). See, e.g.,
Howard Appalled by Photographs of Iraqi Prisoners, Austl. Associated Press, Apr.
30, 2004; Conor O’Clery, US General Suspended Over Alleged Abuse of Prisoners,
Irish Times, Apr. 30, 2004 at 1; Torturas en la misma cárcel de Saddam, La
Vanguardia (Spain), Apr. 29, 2004 at 3.
    24.    See US Helped Deport Egyptians to Face Alleged Abused [sic]: Swedish
TV, Agence France Presse, May 17, 2004; Implication Directe des Etats-Unis dans
l’Expulsion de Suède de deux Egyptiens (TV), Agence France Presse, May 17,
2004.
    25.     See Swedish TV4 Kalla Fakta Program, http://www.hrw.org/legacy/
english/docs/2004/05/17/sweden8620.htm (English-language transcript of first
part of series, broadcast on Swedish television network TV4 on May 17, 2004).
Kalla Fakta’s account of the transfer was later verified by a Swedish
parliamentary investigation, which further uncovered that the masked agents at
Bromma included not only U.S. but also Egyptian authorities. Alzery,
Communication No. 1416/2005, ¶ 3.10.
    26.    See Michael D. Goldhaber, A People’s History of the European Court of
Human Rights 108–14 (2007).
    27.      See Alzery, Communication No. 1416/2005 ¶¶ 3.20–3.32; Agiza,
Communication No. 233/2003 ¶ 12.10.
    28.     Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85 (entered into force June 26, 1987) [hereinafter CAT].
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     241


Political Rights29 (ICCPR), respectively.30 In Agiza v. Sweden, the
Committee Against Torture found that, due to Egypt’s reputation for
torturing detainees held for political and security reasons, Sweden
knew or should have known at the time of Agiza’s removal that he
would be at a real risk of torture in Egypt; thus, Sweden had violated
Article 3 of the CAT by allowing his removal.31 The Committee
discounted the assurances provided by Egypt, declaring that “[t]he
procurement of diplomatic assurances, which, moreover, provided no
mechanism for their enforcement, did not suffice to protect against
this manifest risk.”32 The Committee also found Sweden in violation
of Article 22 of the CAT for initially failing to disclose to the
Committee that Agiza had complained of ill treatment to Swedish
diplomatic personnel during their first monitoring visit with Agiza in
prison.33 The Human Rights Committee was similarly critical in
Alzery v. Sweden. Among other violations,34 the Committee found


    29.      International Covenant on Civil and Political Rights, opened for
signature Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (entered
into force Mar. 23, 1976) [hereinafter ICCPR].
    30.    Agiza v. Sweden, Communication No. 233/2003, U.N. Doc.
CAT/C/34/D/233/2003 (Comm. Against Torture May 24, 2005); Alzery,
Communication No. 1416/2005. Alzery attempted to seek a judgment by the
European Court of Human Rights, but his claim was time-barred.
Communication No. 1416/2005 ¶ 3.19 (rejecting Alzery’s application, finding that
it was filed outside of the time limits imposed by Article 35 of the ECHR).
    31.      Agiza, Communication No. 233/2003 ¶ 13.4. Article 3 of the CAT
states, “1. No State Party shall expel, return ("refouler") 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. 2. For the purpose of determining whether
there are such grounds, the competent authorities shall take into account all
relevant considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human
rights.” CAT, supra note 28, art. 3.
    32.     Agiza, Communication No. 233/2003 ¶ 13.4.
    33.     Id. ¶ 13.10; see also id. at ¶¶ 8.1–8.3 (Agiza’s assertion that Sweden
concealed part of the monitoring visit report by Swedish diplomatic personnel in
order to avoid inconvenience and embarrassment); id. ¶¶ 12.11–12.19 (Sweden’s
explanation that it redacted the report due to concerns at the time that public
disclosure of Agiza’s complaints would negatively impact Sweden’s diplomatic
relations and cause Egypt to retaliate against Agiza and disrupt further
monitoring).
    34.      Alzery, Communication No. 1416/2005 ¶¶ 11.6–11.11 (finding that
Sweden’s conduct at Bromma Airport, delayed investigations, failure to initiate
criminal prosecutions, failure to provide an opportunity for effective independent
review of the decision to expel, and failure to notify Alzery’s counsel of the
decision to expel constituted violations of Articles 7, 2 and 14 of the ICCPR and
Article 1 of the Optional Protocol to the ICCPR).
242         COLUMBIA HUMAN RIGHTS LAW REVIEW                                 [42:233


that Sweden had violated Article 7 of the ICCPR by expelling Alzery
to Egypt, as his expulsion exposed him to a real risk of torture or ill
treatment.35 The Committee determined that the diplomatic
assurances were not sufficient to eliminate the risk of ill treatment to
a level consistent with Article 7.36
        In the midst of the controversy over Agiza and Alzery, the
Washington Post brought to light allegations that the CIA had been
hiding and interrogating individuals associated with terrorism in
secret prisons in eight countries, including several in Eastern
Europe.37 It appeared that Agiza and Alzery were not isolated
incidents, but rather parts of a broader policy. European cooperation
in CIA counterterrorism activity, and in resultant human rights
violations, extended further than imagined.

C. Responses of European Intergovernmental Institutions
       Council of Europe institutions other than the ECTHR reacted
quickly and directly to the controversy generated by Agiza, Alzery
and the CIA secret prisons. The Council of Europe’s Committee of
Ministers had already adopted Guidelines on Human Rights and the
Fight Against Terrorism in 2002,38 but they were flouted by the


    35.    Alzery, Communication No. 1416/2005 ¶¶ 11.3–11.5.
    36.    Id. ¶ 11.5. Article 7 provides, “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.” ICCPR, supra note 29,
art. 7.
    37.    See Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash.
Post, Nov. 2, 2005, at A1.
    38.     The Guidelines on Human Rights and the Fight Against Terrorism
were the outcome of the Group of Specialists on Human Rights and the Fight
against Terrorism (DH-S-TER) and were adopted by the Committee of Ministers
of the Council of Europe in July 2002. For a description of DH-S-TER, see infra
Part I.D. Point IV of the Guidelines states, “The use of torture or of inhuman or
degrading treatment or punishment is absolutely prohibited, in all circumstances,
and in particular during the arrest, questioning and detention of a person
suspected of or convicted of terrorist activities, irrespective of the nature of the
acts that the person is suspected of or for which he/she was convicted.” Comm. of
Ministers, Council of Europe, Guidelines on Human Rights and the Fight Against
Terrorism,      §    IV      (adopted     July     11,    2002),     available      at
http://www.coe.int/t/E/Human_Rights/Guidelines%20compendium%20ENG.pdf.
The Guidelines explicitly extend this absolute prohibition to the contexts of
asylum, expulsion, and extradition. Id. § XII(2), § XIII(3). The Guidelines have
been cited by the ECTHR in many cases involving diplomatic assurances. See,
e.g., Saadi v. Italy, No. 37201/06, ¶ 64 (Eur. Ct. H.R. Feb. 2, 2008),
http://www.echr.coe.int, cited with approval in Sellem v. Italy, No. 12584/08, ¶ 20
(Eur. Ct. H.R. May 5, 2009), http://www.echr.coe.int; Abdelhedi v. Italy, No.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     243


authorities involved in the transfers of Agiza, Alzery and other CIA
detainees. After 2004, core institutions and specialized bodies of the
Council of Europe and European Union produced new documents
outlining principles that offer guidance on the practice of seeking and
relying on diplomatic assurances against torture. These principles
have influenced the jurisprudence of the European Court of Human
Rights.

         1. Council of Europe
        Among Council of Europe core institutions and specialized
bodies, the work of the Parliamentary Assembly, the Commissioner
for Human Rights, and the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment
appears to have had particular impact on the ECTHR.

                  a. Parliamentary Assembly and Commissioner for
                     Human Rights
        Concerns regarding diplomatic assurances have been raised
by the Parliamentary Assembly and the Commissioner for Human
Rights, both core institutions of the Council of Europe. The
Parliamentary Assembly of the Council of Europe (PACE) is
composed of representatives of all Member States of the Council of
Europe, with the number of representatives determined in proportion
to the size of each Member State. PACE meets four times per year,
and its functions include electing the Commissioner for Human
Rights and the members of the European Court of Human Rights.
The Commissioner for Human Rights, who acts as an independent
institution rather than a national representative, monitors and
promotes human rights protection by Council of Europe Member
States.


2638/07, ¶ 19 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Ben Salah v.
Italy, No. 38128/06, ¶ 16 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int;
Bouyahia v. Italy, No. 46792/06, ¶ 21 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int; C.B.Z. v. Italy, No. 44006/06, ¶ 19 (Eur. Ct. H.R. Mar. 24,
2009), http://www.echr.coe.int; Darraji v. Italy, No. 11549/05, ¶ 37 (Eur. Ct. H.R.
Mar. 24, 2009), http://www.echr.coe.int; Hamraoui v. Italy, No. 16201/07, ¶ 17
(Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; O v. Italy, No. 37257/06, ¶
20 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Soltana v. Italy, No.
37336/06, ¶ 22 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Ben
Khemais v. Italy, No. 246/07, ¶ 33 (Eur. Ct. H.R. Feb. 24, 2009),
http://www.echr.coe.int.
244        COLUMBIA HUMAN RIGHTS LAW REVIEW                              [42:233


         PACE offered guidance on the practice of seeking diplomatic
assurances through a Resolution. In Resolution 1433, entitled
“Lawfulness of detentions by the United States in Guantánamo Bay,”
the Assembly expressed its longstanding support for the U.S. but
criticized its recent policy of detaining individuals associated with
terrorism at Guantánamo.39 The Assembly called on the U.S.
government to, inter alia, “not . . . return or transfer detainees in
reliance on ‘diplomatic assurances’ from countries known to engage
in the systematic practice of torture and in all cases unless the
absence of a risk of ill-treatment is firmly established.”40 Resolution
1433 was cited by the ECTHR in many cases.41
        The Commissioner for Human Rights also repeatedly warned
against the practice of seeking diplomatic assurances. In his report
on his visit to Sweden in 2004, then-Commissioner Alvaro Gil-Robles
recounted the failure of diplomatic assurances in the Agiza and
Alzery cases and outlined minimum requirements to be met when
relying on diplomatic assurances:
         [A]ssurances must be unequivocal and a system to monitor
         such assurances must be in place. When assessing the
         reliability of diplomatic assurances, an essential criteria
         [sic] must be that the receiving state does not practice or
         condone torture or ill-treatment, and that it exercises
         effective control over the acts of non-state agents. In all
         other circumstances it is highly questionable whether
         assurances can be regarded as providing indisputable
                                                       42
         safeguards against torture and ill-treatment.
       Gil-Robles reiterated these minimum requirements and
added another in his report on his visit to the U.K. in 2005, saying


   39.     Eur. Parl. Ass., Resolution 1433(2005): Lawfulness of Detentions by the
United States in Guantánamo Bay, 10th Sess., Doc. No. 10497, ¶¶ 1–4 (2005),
available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/
ta05/ERES1433.htm.
   40.     Id. ¶ 8.
   41.     See, e.g., Ahmad v. U.K., No. 24027/07, ¶ 80 (Eur. Ct. H.R. July 6,
2010), http://www.echr.coe.int; Sellem, No. 12584/08, ¶ 22; Abdelhedi, No.
2628/07, ¶ 21; Ben Salah, No. 38128/06, ¶ 18; Bouyahia, No. 38128/06, ¶ 23; CBZ,
¶ 21; Darraji, No. 11549/05, ¶ 39; Hamraoui, No. 16201/07, ¶ 19; O, No. 37257/06,
¶ 22; Soltana, No. 37336/06, ¶ 24; Ben Khemais No. 246/07, ¶ 35; Boumediene v.
Bosnia & Herzegovina, No. 38703/06, ¶ 53 (Eur. Ct. H.R. Dec. 18, 2008),
http://www.echr.coe.int.
   42.     Comm’r for Human Rights, Council of Eur., Report by Mr. Alvaro Gil-
Robles, Commissioner for Human Rights, on His Visit to Sweden, Doc. No.
CommDH(2004)13, para 19 (2004), available at https://wcd.coe.int/
ViewDoc.jsp?id=758789&Site=COE.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                             245


that “[g]iven the extremely serious consequences at stake it would be
vital that the deportation of foreigners on the basis of diplomatic
assurances are subject to judicial scrutiny capable of taking all these
elements, the content of the assurances, and the likelihood of their
being respected into account.”43
        At the time Gil-Robles produced these reports, the Group of
Specialists on Human Rights and the Fight against Terrorism (DH-
S-TER)—established by the Council of Europe’s Steering Committee
for Human Rights (CDDH) soon after September 11, 2001—had not
yet rejected the notion of a Council of Europe common instrument on
diplomatic assurances.44 As discussed above, Gil-Robles set out
minimum requirements regarding judicial review, monitoring,
protection from state and non-state parties, and the receiving
country’s human rights record in an attempt to make diplomatic
assurances serve as safeguards against torture and inhuman or
degrading treatment or punishment (IDTP). By recommending
minimum requirements, he implicitly accepted diplomatic assurances
in principle.
       One year later, after the DH-S-TER rejected the idea of a
common instrument, the current Commissioner for Human Rights,
Swedish diplomat and human rights advocate Thomas Hammarberg,
took a more hard-line position, opposing reliance on diplomatic
assurances under any circumstances.
        “Diplomatic assurances” . . . are not credible and have also
        turned out to be ineffective in well-documented cases. The
        governments concerned have already violated binding
        international norms and it is plain wrong to subject anyone
        to the risk of torture on the basis of an even less solemn
        undertaking to make an exception in an individual case. In
        short, the principle of non-refoulement should not be
        undermined by convenient, non-binding promises of such
               45
        kinds.
        Hammarberg’s categorical rejection of diplomatic assurances
may be linked to his personal experience with the Agiza case. In his
capacity as the head of the Stockholm-based Olof Palme
International Center, Hammarberg met in Cairo with Agiza’s


   43.   Id. para. 30.
   44.   For a discussion of DH-S-TER and the proposal for a common European
instrument, see infra Section I.D.
   45.   Thomas Hammarberg, Torture Can Never, Ever, Be Accepted, Council
of Eur., Comm’r for Human Rights (June 27, 2006), http://www.coe.int/t/
commissioner/Viewpoints/060626_en.asp.
246        COLUMBIA HUMAN RIGHTS LAW REVIEW                             [42:233


attorney,46 and communicated to the Committee Against Torture
“that there was prima facie evidence of torture” and that “there were
deficiencies in the monitoring arrangements implemented by the
Swedish authorities.”47

                 b. European Committee for the Prevention of
                    Torture and Inhuman or Degrading Treatment
                    or Punishment
        The European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) is a
monitoring body created pursuant to the European Torture
Convention,48 which affirms the absolute prohibition of torture and
“inhuman or degrading treatment or punishment” codified in Article
3 of the ECHR.49 It has been ratified by the 47 Member States of the
Council of Europe.50 The Committee’s mandate is to examine, by
means of visits,51 the treatment of people deprived of their liberty,
and, if necessary, to strengthen their protections against torture and
IDTP.52 Like the international human rights treaty monitoring



   46.      Agiza v. Sweden, Communication No. 233/2003, ¶ 2.9 U.N. Doc.
CAT/C/34/D/233/2003 (Comm. Against Torture, May 24, 2005).
   47.     Id. ¶ 3.5.
   48.     European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, opened for signature Nov. 26, 1987, 1561
U.N.T.S. 364 (entered into force Feb. 1, 1989), as amended by Protocol No. 1 to
the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, opened for signature Nov. 4, 1993, 2206
U.N.T.S. 230 (entered into force Mar. 1, 2002); Protocol No. 2 to the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, opened for signature Nov. 4, 1993, 2206 U.N.T.S. 249 (entered
into force Mar. 1, 2002) [hereinafter European Torture Convention].
   49.     Id., pmbl.
   50.     Ratification information is available on the United Nations Treaty
Collection website at http://treaties.un.org/Pages/UNTSOnline.aspx?id=2.
   51.     Each Member State of the Council of Europe must permit visits to “any
place within its jurisdiction where persons are deprived of their liberty by a
public authority.” European Torture Convention, supra note 48, art. 2. States
must provide the CPT with unlimited access to and full information on places of
detention, and allow the Committee to interview detainees in private and
communicate freely with anyone who may supply relevant information. Id. art. 8.
States may object to visits only in “exceptional circumstances”: “on grounds of
national defence, public safety, serious disorder in places where persons are
deprived of their liberty, the medical condition of a person or that an urgent
interrogation relating to a serious crime is in progress.” Id. art. 9.
   52.     Id. art. 1.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     247


bodies, the CPT is composed of professionals with relevant knowledge
or experience serving in their individual capacities.53 Whereas the
ECTHR is an adjudicative body that addresses ECHR violations,
often after they occur, the CPT is envisioned as a “non-judicial means
of a preventive character.”54
        The CPT turned its attention to diplomatic assurances in
2004. In the years that followed, it consistently questioned their
effectiveness in protecting individuals from torture and IDTP, and
recommended minimum requirements of independent review and
post-transfer monitoring that are to be met before a country relies on
sending assurances as a basis for transfer.
         The Committee advocated a case-by-case analysis of
assurances, stating that “the specific circumstances of each case have
to be taken into account when making that assessment [of whether
an individual personally runs a real risk of being ill-treated].”55
However, the Committee recognized the inherent unreliability of
diplomatic assurances in certain situations: where the assurances
are provided by a country where torture and ill-treatment are
widespread,56 and where the individual is subject to “rendition for the
purposes of detention and interrogation outside the normal criminal
justice system.”57 In fact, the Committee declared that States Parties
to the European Torture Convention should never offer assistance in
the latter situation, as it “inevitably involve[s] a risk of ill-treatment


   53.     Id. art. 4.
   54.     Id., pmbl.
   55.       European Comm. for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), 15th General Report on the CPT’s
Activities Covering the Period 1 August 2004 to 31 July 2005, para. 39, CPT/Inf
(2005) 17 (2005), available at http://www.cpt.coe.int/en/annual/rep-15.pdf
[hereinafter CPT 15th Annual Report].
   56.      Id. (“[I]f in fact there would appear to be a risk of ill-treatment, can
diplomatic assurances received from the authorities of a country where torture
and ill-treatment is widely practised ever offer sufficient protection against that
risk? It has been advanced with some cogency that even assuming those
authorities do exercise effective control over the agencies that might take the
person concerned into their custody (which may not always be the case), there
can be no guarantee that assurances given will be respected in practice. If these
countries fail to respect their obligations under international human rights
treaties ratified by them, so the argument runs, why should one be confident that
they will respect assurances given on a bilateral basis in a particular case?”).
   57.     CPT, 17th General Report on the CPT’s Activities Covering the Period 1
August 2006 to 31 July 2007, CPT/Inf (2007) 39, preface (2007), available at
http://www.cpt.coe.int/en/annual/rep-17.pdf [hereinafter CPT 17th Annual
Report].
248        COLUMBIA HUMAN RIGHTS LAW REVIEW                               [42:233


for the person concerned that no ‘assurances’ can ever fully
remove.”58 In 2005, the Committee expressed skepticism as to the
viability of post-transfer monitoring59 and made the following
recommendations on minimum requirements:
         To have any chance of being effective, such a mechanism
         would certainly need to incorporate some key guarantees,
         including the right of independent and suitably qualified
         persons to visit the individual concerned at any time,
         without prior notice, and to interview him/her in private in
         a place of their choosing. The mechanism would also have
         to offer means of ensuring that immediate remedial action
         is taken, in the event of it coming to light that assurances
                                         60
         given were not being respected.
       The CPT also emphasized the necessity of review of
diplomatic assurances prior to the individual’s transfer.
         [P]rior to return, any deportation procedure involving
         diplomatic assurances must be open to challenge before an
         independent authority, and any such challenge must have a
         suspensive effect on the carrying out of the deportation.
         This is the only way of ensuring rigorous and timely
         scrutiny of the safety of the arrangements envisaged in a
                    61
         given case.
        The Committee’s 2005 annual report affirmed that the
Committee “intends to follow closely developments in States Parties
to the European Convention for the Prevention of Torture in relation
to the practice of diplomatic assurances.”62 Accordingly, the
Committee has mentioned diplomatic assurances in each of its
annual reports since 2005.63 The ECTHR, in turn, has favorably cited
the CPT’s findings on diplomatic assurances.64


   58.     Press Release, European Comm. for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), Council of Europe’s
Anti-Torture Committee denounces secret detention (Sept. 14, 2007), available at
http://www.cpt.coe.int/en/annual/press/2007-09-14-eng.htm.
   59.     CPT 15th Annual Report, supra note 55, para. 40 (“While the CPT
retains an open mind on this subject, it has yet to see convincing proposals for an
effective and workable mechanism.”).
   60.     Id.
   61.     Id., para. 41.
   62.     Id., para. 42.
   63.     See CPT, 19th General Report on the CPT’s Activities: 1 August 2008 to
31 July 2009, CPT/Inf (2009) 27, para. 10 (2009), available at
http://www.cpt.coe.int/en/annual/rep-19.pdf; CPT, 18th General Report on the
CPT’s Activities Covering the Period 1 August 2007 to 31 July 2008, CPT/Inf
(2008) 25, paras. 10, 21 (2008), available at http://www.cpt.coe.int/en/annual/rep-
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     249


         2. European Union
         When the Washington Post reported the existence of secret
CIA prisons in Eastern Europe in November 2005, the European
Parliament responded by adopting a resolution expressing its worry
“that in the context of the fight against international terrorism that
has been conducted since 11 September 2001, fundamental European
and international rights have apparently been violated,”65 and by
initiating a parliamentary investigation led by the Temporary
Committee on the Alleged Use of European Countries by the CIA for
the Transport and Illegal Detention of Prisoners (TDIP Committee).66
       In its final report, the TDIP Committee proposed a
parliamentary resolution,67 which the European Parliament
subsequently adopted with some modification.68 The resolution’s
preamble states that “the obligation to protect against, investigate


18.pdf; CPT 17th Annual Report, supra note 57, preface; CPT, 16th General
Report on the CPT’s Activities Covering the Period 1 August 2005 to 31 July 2006,
CPT/Inf      (2006)      35,    paras.     11,    20     (2006),    available     at
http://www.cpt.coe.int/en/annual/rep-16.pdf.
    64.    See, e.g., Ismoilov v. Russia, No. 2947/06, ¶ 100 (Eur. Ct. H.R. Apr. 24,
2008), http://www.echr.coe.int (citing the CPT’s 2005 annual report).
    65.      European Parl., Presumed use of European countries for the
transportation and illegal detention of prisoners by the CIA, para. D, Eur. Parl.
Doc.     P6_TA(2005)         0529      (Dec.     15,     2005),     available     at
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2005-
0529&language=EN. The resolution cited the Washington Post article. Id. para.
B (“whereas on 2 November 2005 the Washington Post alleged that the CIA had
been holding and interrogating terrorist suspects at secret facilities in Eastern
Europe as part of a global covert transport, prison and interrogation system
known as ‘extraordinary rendition’ established after the attacks of 11 September
2001 and operating beyond any judicial controls or extradition
requirements . . .”).
    66.   European Parl., Temporary Committee on Extraordinary Rendition,
Eur. Parl. Doc. P6_TA(2006)0012 (Jan. 18, 2006), available at
http://www.europarl.europa.eu/sides/getDoc.do?language=EN&pubRef=-
//EP//TEXT+TA+P6-TA-2006-0012+0+DOC+XML+V0//EN.
    67.   Temp. Comm. on the Alleged Use of European Countries by the CIA for
the Transportation and Illegal Detention of Prisoners (TDIP Committee), Report
on the Alleged Use of European Countries by the CIA for the Transportation and
Illegal Detention of Prisoners, Eur. Parl. Doc. A6-0020/2007 (Jan. 30, 2007),
available at http://www.europarl.europa.eu/comparl/tempcom/tdip/final_report_
en.pdf.
    68.   See Transportation and Illegal Detention of Prisoners, Eur. Parl. Doc.
P6_TA(2007)0032 (Feb. 14, 2007), available at http://www.europarl.europa.eu/
sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2007-0032+0+DOC+PDF+
V0//EN.
250       COLUMBIA HUMAN RIGHTS LAW REVIEW                          [42:233


and sanction torture is an obligation owed by all states,” and that
“the use of diplomatic assurances is incompatible with this
obligation.”69 The resolution also condemns the use of diplomatic
assurances by Sweden in the Agiza and Alzery cases,70 as well as by
Ireland.71 Finally, the European Parliament “[r]eiterates its call on
the [European] Council . . . to adopt a common position ruling out the
acceptance of mere diplomatic assurances from third countries as a
basis for any legal extradition provision, where there are substantial
grounds for believing that individuals would be in danger of being
subjected to torture or ill-treatment.”72
       Although the European Parliament ultimately adopted the
TDIP Committee’s final report, parliamentary members were far
from unified: 382 voted in favor, 256 against, and 74 abstained.73
Such disagreement was not a new development—in fact, divided
opinion among national governments had stymied the Council of
Europe’s attempt to adopt a common instrument on diplomatic
assurances in 2005-2006.

D. Divided Responses of National Governments and Failed
   Proposal for a Council of Europe Instrument on Diplomatic
   Assurances
        From 2005 to 2006, a group of national government
representatives convening under the auspices of the Council of
Europe considered and rejected a proposal to draft a common
instrument on diplomatic assurances in expulsion (not extradition)
procedures. This process highlighted the inconsistency among States’
practices and the divergence between the outlooks of European
intergovernmental organizations and certain national governments.
       The Group of Specialists on Human Rights and the Fight
Against Terrorism (DH-S-TER), created in November 2001 by the




   69.    Id. para. G.
   70.    Id. paras. 99–102.
   71.    Id. para. 124.
   72.    Id. para. 21.
   73.    Press Release, European Parl., CIA Activities in Europe: European
Parliament Adopts Final Report Deploring Passivity From Some Member States
(Feb. 14, 2007), available at http://www.europarl.europa.eu/sides/getDoc.do?
pubRef=-//EP//TEXT+IM-PRESS+20070209IPR02947+0+DOC+XML+V0//EN.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                251


Council of Europe’s Steering Committee for Human Rights (CDDH)
in response to September 11,74 was assigned in 2005 to:
        (i) start a reflection on the issues raised with regard to
        human rights by the use of diplomatic assurances in the
        context of expulsion procedures; and
        (ii) consider the appropriateness of a legal instrument, for
        example a recommendation on minimum requirements/
        standards of such diplomatic assurances, and, if need be,
                                    75
        present concrete proposals.
        The DH-S-TER based its conclusions on responses by
national governments to a questionnaire, as well as on information
and statements by international organizations, NGOs, national
institutions for the promotion and protection of human rights, the
UN High Commissioner for Human Rights, the UN Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the Council of Europe Commissioner
for Human Rights.76 The questionnaire, in particular, became a
source of contention, as NGOs disputed the national governments’
accounts of their policies on and experiences with diplomatic
assurances.77
        The DH-S-TER members agreed on general principles. They
affirmed that the prohibition of torture and inhuman or degrading
treatment or punishment was absolute and non-derogable; that the
assessment of the existence of a real risk of such treatment must be
based on a case-by-case analysis, not a list of “safe” or “unsafe”
receiving States; and that the provision of diplomatic assurances


   74.    Steering Comm. for Human Rights (CDDH), Extracts of the Report of
the 52nd Meeting of the CDDH, Doc. No. DH-S-TER(2001)001, ¶¶ 6-8 (Nov. 22,
2001), available at http://www.coe.int/t/e/human_rights/cddh/3._committees/
06.%20terrorism%20(dh-s-ter)/working%20documents/2001/
2001_001_en.asp#TopOfPage.
   75.    Group of Specialists on Human Rights and the Fight Against Terrorism
(DH-S-TER), Meeting Report, Doc. No. DH-S-TER(2005)018, app. III, ¶ 4 (Dec. 16,
2005), available at http://www.coe.int/t/e/human_rights/cddh/3._committees/
06.%20terrorism%20(dh-s-ter)/meeting%20reports/2005_018_en.asp#TopOfPage
[hereinafter DH-S-TER First Meeting Report].
   76.    Group of Specialists on Human Rights and the Fight Against Terrorism
(DH-S-TER), Meeting Report, Doc. No. DH-S-TER(2006)(005), app. III, ¶ 5 (Apr.
3, 2006), available at http://www.coe.int/t/e/human_rights/cddh/3._committees/
06.%20terrorism%20(dh-s-ter)/meeting%20reports/2006_005_en.asp#TopOfPage
[hereinafter DH-S-TER Second Meeting Report].
   77.     See, e.g., Human Rights Watch, Commentary on State Replies: CDDH
Questionnaire on Diplomatic Assurances (Mar. 2006), available at
http://www.hrw.org/en/news/2006/03/28/commentary-state-replies.
252       COLUMBIA HUMAN RIGHTS LAW REVIEW                               [42:233


does not relieve sending States of their obligation to conduct a full
assessment of real risk.78
        However, the DH-S-TER members failed to reach agreement
on the reliability of diplomatic assurances and the weight they
should be given in an assessment of real risk. The members divided
into four basic groups: (1) those who considered diplomatic
assurances concerning torture and inhuman or degrading treatment
in the context of expulsion procedures to be inherently unreliable; (2)
those who asserted that diplomatic assurances can be effective and
therefore should be given significant weight in a real risk
assessment; (3) those who were unwilling to reject diplomatic
assurances in principle for all future cases, but did not believe
assurances were in practice necessarily effective; (4) those who found
it very difficult to arrive at a firm position on the issue because the
States they represented had never used assurances.79
       Ultimately, the DH-S-TER recommended that the Council of
Europe not adopt a common instrument on diplomatic assurances.80
Members gave various reasons, including:
        i. It was always very difficult to draft a legal instrument
        when there was very little national practice on which to
        draw, as in the case of diplomatic assurances in expulsion
        procedures, particularly as the situations that might lend
        themselves to the use of such assurances varied widely;
        ii. It would be particularly difficult to draft such an
        instrument as member states had no common position on
        the use of diplomatic assurances;
        iii. Such an instrument could be seen as weakening the
        absolute nature of the prohibition of torture or as a Council
        of Europe legitimisation of the use of diplomatic
        assurances;
        iv. It could also be seen as an inducement to resort to
        diplomatic assurances, when in fact states currently make
        very little use of them;
        v. Situations that may lead to expulsion had to be examined
        on a case by case basis making it very difficult to develop
        basic standards, other than very broad ones which would
                                                             81
        offer little protection, which would be unacceptable.




  78.    DH-S-TER Second Meeting Report, supra note 76, app. III, ¶ 9.
  79.    Id. ¶¶ 12–16.
  80.    Id. ¶ 17.
  81.    Id.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                     253


        In addition, some members opposed a common instrument
simply because they found diplomatic assurances to be inherently
unreliable.82 Thus, the DH-S-TER’s work in 2005-2006 resulted in a
rejection of a common instrument for reasons of principle and
practicality, and demonstrated that the positions of national
governments regarding diplomatic assurances diverged at a
fundamental level. In its final activity report, the DH-S-TER stated
that “[c]ertain experts could envisage further consideration to be
given at a later stage to the appropriateness of a legal instrument,
particularly once the European Court of Human Rights had ruled on
these issues.”83
        The European Court of Human Rights had more than a
decade of experience in examining diplomatic assurances in cases
involving extradition for common crimes—in particular, assurances
against the death penalty, due to the de facto abolition of capital
punishment and the conception of death row as a potential violation
of the ECHR—before terrorism gave diplomatic assurances against
torture a new significance. The years 2004 and 2005 brought the
shocking revelations that the Swedish government was complicit in
the CIA’s transfer of Agiza and Alzery to Egypt—where diplomatic
assurances failed to protect them from torture and ill treatment—
and that Eastern European countries had allowed secret CIA prisons
on their territory. Core institutions and specialized bodies of the
Council of Europe and the European Union quickly began expressing
concern over the use of diplomatic assurances against torture in
cases involving terrorism, while national governments remained
sharply divided. It was in this context that the European Court of
Human Rights issued its judgment in Saadi v. Italy in 2008.

    II. EUROPEAN COURT OF HUMAN RIGHTS JURISPRUDENCE

        The European Court of Human Rights (ECTHR) took its
current position on diplomatic assurances in the wake of public
controversy over Agiza, Alzery, and secret CIA prisons in Eastern
Europe, and in the face of expressions of concern by
intergovernmental bodies and disagreement among national
governments. The Court did not go the way of Council of Europe
Commissioner for Human Rights Thomas Hammarberg, who
rejected—or the way of the CPT, which questioned—the reliability of


  82.   Id. ¶ 19.
  83.   Id. ¶ 18.
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assurances in principle. Neither did the Court join national
governments that asserted that diplomatic assurances can be
effective and therefore should be given significant weight in a real
risk assessment. The Court affirmed judicial competence to review
diplomatic assurances against torture and ill treatment and, in the
2008 case Saadi v. Italy,84 laid out major principles to guide the
assessment of assurances on a case-by-case basis. An analysis of
cases involving diplomatic assurances since 2008 suggests that the
Court attaches the greatest significance to the human rights record
of the receiving country.

A. European Convention on Human Rights
        The Convention for the Protection of Human Rights and
Fundamental Freedoms,85 more commonly known as the “European
Convention on Human Rights” (ECHR), is the central human rights
law instrument limiting the use of diplomatic assurances against
torture in Europe. The ECHR is important both for its broad binding
force and for its absolute prohibition of refoulement to torture and
inhuman or degrading treatment or punishment (IDTP).
        Article 3 of the Convention codifies the absolute prohibition
of torture and IDTP and is interpreted by the ECTHR to prohibit
refoulement to such treatment. Article 3 is a single sentence: “No one
shall be subjected to torture or to inhuman or degrading treatment or
punishment.”86 ECTHR jurisprudence establishes that this
prohibition is absolute under all circumstances. As early as 1978, the
Court declared that “there can be no derogation therefrom even in
the event of a public emergency threatening the life of the nation.”87
In Chahal v. United Kingdom, the Court made clear that the threat
of terrorism does not present an exception:
         Article 3 (art. 3) enshrines one of the most fundamental
         values of democratic society . . . . The Court is well aware of
         the immense difficulties faced by States in modern times in



   84.    See Saadi v. Italy, No. 37201/06, ¶ 128 (Eur. Ct. H.R. Feb. 2, 2008),
http://www.echr.coe.int.
   85.    ECHR, supra note 8.
   86.     Id. art. 3.
   87.    Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 65 (1978). See
also Shamayev v. Georgia and Russia, 2005-III Eur. Ct. H.R. 153, 247 (“Articles 2
and 3 of the Convention make no provision for exceptions and no derogation from
them is permissible under Article 15, even in the event of a public emergency
threatening the life of the nation.”).
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                      255


         protecting their communities from terrorist violence.
         However, even in these circumstances, the Convention
         prohibits in absolute terms torture or inhuman or
         degrading treatment or punishment, irrespective of the
                           88
         victim’s conduct.
        States’ obligations under Article 3 are not confined to
treatment occurring within their borders. States are prohibited from
returning individuals to a place where there are “substantial
grounds” for believing that there is a “real risk” that they will suffer
torture or IDTP.89 The Court bases its risk assessment under Article
3 on “all the material placed before it” or, if necessary, material
obtained of its own initiative.90 Diplomatic assurances are not



    88.    Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831, 1855. The
Court determined that India’s July 1992 and December 1995 assurances that the
applicant “would enjoy the same legal protection as any other Indian citizen, and
that he would have no reason to expect to suffer mistreatment of any kind” would
not provide Chahal with an adequate guarantee of safety because “the violation of
human rights by certain members of the security forces in Punjab and elsewhere
in India is a recalcitrant and enduring problem”). Id. at 1844, 1861.
    89.    See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 467–68
(1989) (“The fact that a specialised treaty should spell out in detail a specific
obligation attaching to the prohibition of torture does not mean that an
essentially similar obligation is not already inherent in the general terms of
Article 3 of the European Convention. It would hardly be compatible with the
underlying values of the Convention, that ‘common heritage of political
traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were
a Contracting State knowingly to surrender a fugitive to another State where
there were substantial grounds for believing that he would be in danger of being
subjected to torture, however heinous the crime allegedly committed. Extradition
in such circumstances, while not explicitly referred to in the brief and general
wording of Article 3, would plainly be contrary to the spirit and intendment of the
Article, and in the Court’s view this inherent obligation not to extradite also
extends to cases in which the fugitive would be faced in the receiving State by a
real risk of exposure to inhuman or degrading treatment or punishment
proscribed by that Article.” (emphasis added)).
    90.     Ireland, 25 Eur. Ct. H.R. (ser. A) at 64 (“[T]he Court examines all the
material before it, whether originating from the [now-defunct European
Commission of Human Rights], the Parties or other sources, and, if necessary,
obtains material proprio motu.”); H.L.R. v. France, 1997-III Eur. Ct. H.R. 745,
758 (“In determining whether it has been shown that the applicant runs a real
risk, if deported to Colombia, of suffering treatment proscribed by Article 3 (art.
3), the Court will assess the issue in the light of all the material placed before it
or, if necessary, material obtained proprio motu.” (citation omitted)); Saadi v.
Italy, No. 37201/06, ¶ 128 (Eur. Ct. H.R. Feb. 2, 2008), http://www.echr.coe.int
(“In determining whether substantial grounds have been shown for believing that
there is a real risk of treatment incompatible with Article 3, the Court will take
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explicitly mentioned in the ECHR, but they are implicated in Article
3 because States seeking to transfer individuals to another country
have used assurances as a means to demonstrate their compliance
with their non-refoulement obligation.

B. The Saadi Standard
        Although the European Court of Human Rights had reviewed
cases involving diplomatic assurances against torture and ill
treatment prior to 2008,91 the Court laid out major principles guiding
its current approach in Saadi v. Italy.92 Italy sought to deport Nassim
Saadi to Tunisia, where a military court had sentenced him in
absentia to “twenty years’ imprisonment for membership in a
terrorist organisation operating abroad in time of peace and for



as its basis all the material placed before it or, if necessary, material obtained
proprio motu . . . .” (citations omitted)).
   91.     See, e.g., Shamayev, 2005-III Eur. Ct. H.R. 153 (reviewing extradition
and requests for extradition of Chechens accused of terrorist activity). In
Shamayev, the ECTHR referred to Russia’s assurances, among other evidence, to
support its conclusion that Georgia had not violated Article 3 of the ECHR by
extraditing five of the applicants. Id. at 253 (“A mere possibility of ill-
treatment . . . is not in itself sufficient to give rise to a breach of Article 3 . . .
especially as the Georgian authorities had obtained assurances from their
Russian counterparts even against that possibility.”). Thus, in this case decided a
few years before Saadi, the Court determined that it may be acceptable to rely on
assurances against torture and ill treatment from Russia. However, the Court
recognized the fallibility of monitoring provisions in diplomatic assurances,
finding that Russia violated Article 38 of the ECHR by failing to comply with its
obligations to cooperate with ECTHR investigation and failing to abide by its own
assurances to allow an ECTHR delegation unhindered access to the extraditees.
Id. at 250, 287–88. See also Burga Ortiz v. Germany, No. 1101/04, at 9–10 (Eur.
Ct. H.R. Oct. 16, 2006), http://www.echr.coe.int (finding that Germany did not
violate Article 3 by extraditing the applicant, who was accused of corruption, to
Peru on the basis of NGO reports, the experience of German diplomats, and
diplomatic assurances that detention conditions would meet UN standards);
Sanchez Munte v. Germany, No. 43346/05, at 7–8 (Eur. Ct. H.R. Oct. 16, 2006),
http://www.echr.coe.int (finding that Germany did not violate Article 3 by
extraditing the applicant, who was suspected of drug trafficking, to Argentina on
the basis of reports and a prison visit by German diplomats, and diplomatic
assurances that detention conditions would meet UN standards); Mamatkulov v.
Turkey, 2005-I Eur. Ct. H.R. 295, 303, 322 (considering Uzbekistan’s assurances
that the government would comply with the Convention Against Torture and
would not subject the applicants to torture or the death penalty; referring to
Uzbekistan’s assurances, among other evidence, to support its finding that
Turkey had not violated Article 3 of the ECHR by extraditing the applicants).
   92.    Saadi, No. 37201/06.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     257


incitement to terrorism.”93 At Italy’s request, Tunisia had provided
assurances that it was prepared to accept the transfer of Tunisians
“in strict conformity with the national legislation in force and under
the sole safeguard of the relevant Tunisian statutes”;94 Tunisia
further stated that “the Tunisian laws in force guarantee and protect
the rights of prisoners in Tunisia and secure to them the right to a
fair trial,” and that “Tunisia has voluntarily acceded to the relevant
international treaties and conventions.”95 Although the assurances
may be considered formal—they were in written form and provided
by the Minister of Foreign Affairs—it appears from the ECTHR
decision that they were brief and lacking in substantive content.96
The assurances failed to specify, for example, what the “relevant
international treaties and conventions” were, whether Saadi’s rights
under the ECHR would be protected, or whether any monitoring
mechanism was in place.
        The     Court     found     that,    diplomatic    assurances
notwithstanding, Saadi showed substantial grounds for believing
that there was a “real risk” that he would suffer treatment prohibited
by Article 3. The Court determined that even where the receiving
State provides assurances satisfying the sending State, the Court has
the
         obligation to examine whether such assurances provided, in
         their practical application, a sufficient guarantee that the
         [individual to be transferred] would be protected against
         the risk of treatment prohibited by the Convention. The
         weight to be given to assurances from the receiving State
         depends, in each case, on the circumstances obtaining at the
                        97
         material time.


   93.     Id. ¶ 29. At the time of the ECTHR’s decision, Italian criminal
proceedings on various charges, including conspiracy to commit acts of violence in
States other than Italy with the aim of spreading terror, were pending against
Saadi. Id. ¶¶ 11–28.
   94.     Id. ¶ 54 (quoting the first note verbale, dated July 4, 2007, sent by the
Tunisian Ministry of Foreign Affairs to the Italian embassy in Tunis).
   95.     Id. ¶ 55 (quoting the second note verbale, dated July 10, 2007, sent by
the Tunisian Ministry of Foreign Affairs to the Italian embassy in Tunis).
   96.     See id. ¶¶ 54–55.
   97.      Id. ¶ 148 (citations omitted) (emphasis added). If the individual in
question has not yet been removed from the sending State, the “material time” is
the time of the proceedings before the ECTHR; if the individual has already been
removed, the “material time” is the time of removal. Id. ¶ 133 (citing Chahal v.
United Kingdom, 1996-V Eur. Ct. H.R. 1831, 1856; Venkadajalasarma v.
Netherlands, No. 58510/00, ¶ 63 (Eur. Ct. H.R. Feb. 17, 2004), http://
www.echr.coe.int/echr/en/hudoc. Even where the material time is the time of
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The Court found that
         the existence of domestic laws and accession to international
         treaties guaranteeing respect for fundamental rights in
         principle are not in themselves sufficient to ensure adequate
         protection against the risk of ill-treatment where...reliable
         sources have reported practices resorted to or tolerated by
         the authorities which are manifestly contrary to the
                                                98
         principles of the Convention [ECHR].
        The Saadi decision established that the receipt of diplomatic
assurances, by itself, does not allow a sending State to claim
compliance with Article 3, even where the receiving State is a party
to international human rights treaties. To assess whether there were
substantial grounds for believing that there was a “real risk” that
Saadi would suffer treatment prohibited by Article 3, the ECTHR
gave weight to Amnesty International and Human Rights Watch
reports of torture and ill treatment of terrorist suspects, Saadi’s
terrorism-related conviction in absentia, and the insufficiency of
monitoring by independent actors such as the Red Cross and Human
Rights Watch.99 Tunisia’s assurances were just one piece of this
assessment; they did not trump the other evidence. Thus, in Saadi,
the ECTHR made clear that the sending State must look beyond the
word of the receiving State and examine its actions.

C. After Saadi
       In the two years since Saadi was decided in February 2008,
the ECTHR has affirmed its standard in more than a dozen cases.
The Court has firmly established its competence to review diplomatic
assurances, and subjected assurances to a case-by-case analysis.




removal, the Court may consider, to a limited extent, information that emerged
after the time of removal. See Cruz Varas and Others v. Sweden, 201 Eur. Ct.
H.R. (ser. A) at 30 (1991) (“Since the nature of the Contracting States’
responsibility under Article 3 (art. 3) in cases of this kind lies in the act of
exposing an individual to the risk of ill-treatment, the existence of the risk must
be assessed primarily with reference to those facts which were known or ought to
have been known to the Contracting State at the time of the expulsion; the Court
is not precluded, however, from having regard to information which comes to
light subsequent to the expulsion. This may be of value in confirming or refuting
the appreciation that has been made by the Contracting Party or the well-
foundedness or otherwise of an applicant’s fears.”)
   98.     Saadi, No. 37201/06, ¶ 147 (emphasis added).
   99.     See id. ¶¶ 143–48.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                    259


         1. Judicial Review
         Far from deferring to the judgment of executive officers and
shying away from judicial review, the Court has consistently and
actively examined assurances. In Ryabikin v. Russia, Russia claimed
that the Prosecutor General’s Office of Turkmenistan had stated in a
letter that the applicant would not be subjected to torture or IDTP,100
but the ECTHR discounted these assurances, observing that “no copy
of that letter has been submitted to the Court.”101 Similarly, in
Muminov v. Russia and Isakov v. Russia, the Court dismissed
Russia’s argument that assurances were obtained from Uzbek
authorities, saying “firstly, the Government did not submit a copy of
any diplomatic assurances indicating that the applicant would not be
subjected to torture or ill-treatment.”102
         Thus the Court has refused to allow the sending country to
discharge its responsibility under Article 3 by simply claiming to
have received diplomatic assurances against torture; rather, the
Court has expressed its desire to examine the assurances itself. The
Court has not found that the threat of terrorism calls for
extraordinary deference to diplomatic personnel or other executive
officers. Frequently citing the Court’s “obligation to examine whether
such assurances provided, in their practical application, a sufficient
guarantee that the [individual subject to transfer] would be protected
against the risk of treatment prohibited by the Convention,”103 the


   100.     Ryabikin v. Russia, No. 8320/04, ¶ 86 (Eur. Ct. H.R. June 19, 2008),
http://www.echr.coe.int.
   101.     Id. ¶ 119.
   102.     Abdulazhon Isakov v. Russia, No. 14049/08, ¶ 111 (Eur. Ct. H.R. July
8, 2010), http://www.echr.coe.int; Muminov v. Russia, No. 42502/06, ¶ 97 (Eur.
Ct. H.R. Dec. 11, 2008), http://www.echr.coe.int.
   103.     Saadi, No. 37201/06, ¶ 148, cited with approval in Sellem v. Italy, No.
12584/08, ¶ 39 (Eur. Ct. H.R. May 5, 2009), http://www.echr.coe.int; Abdelhedi v.
Italy, No. 2638/07, ¶ 46 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int;
Ben Salah v. Italy, No. 38128/06, ¶ 35 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int; Bouyahia v. Italy, No. 46792/06, ¶ 38 (Eur. Ct. H.R. Mar.
24, 2009), http://www.echr.coe.int; C.B.Z., No. 44006/06, ¶ 39 (Eur. Ct. H.R. Mar.
24, 2009), http://www.echr.coe.int; Darraji v. Italy, No. 11549/05, ¶ 62 (Eur. Ct.
H.R. Mar. 24, 2009), http://www.echr.coe.int; O v. Italy, No. 37257/06, ¶ 40 (Eur.
Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Soltana v. Italy, No. 37336/06, ¶
42 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Hamraoui v. Italy, No.
16201/07, ¶ 41 (Eur. Ct. H.R. Mar. 23, 2009), http://www.echr.coe.int; Ben
Khemais v. Italy, No. 246/07, ¶ 57 (Eur. Ct. H.R. Feb. 24, 2009),
http://www.echr.coe.int; Muminov, No. 42502/06, ¶ 97; Ryabikin, No. 8320/04, ¶
119.
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ECTHR has drawn its own conclusions about the reliability of
assurances in a particular case.

         2. Case-by-Case Analysis of the Reliability of Assurances
        Saadi called for a case-by-case analysis of the reliability of
assurances, where “[t]he weight to be given to assurances from the
receiving State depends, in each case, on the circumstances
prevailing at the material time.”104 As discussed below, subsequent
decisions have clarified the relative importance of circumstances
internal to the assurances themselves (such as form, content,
consistency, and the position of the individual or office providing the
assurance) and of circumstances external to the assurances (such as
the reputation of the receiving country, the national security profile
of the individual subject to transfer, the possibility of post-transfer
monitoring, and the cause of the transfer). These cases suggest that
some factors are of little or no significance, others have some
significance, and the most significant or determinative factor is the
human rights record of the receiving country.

                  a. Factors of Little or No Significance
       Factors that are not at all determinative in evaluating the
weight to give assurances include the form of the assurance and the
cause of the transfer. The Court has evaluated written105 and oral106
assurances without any discussion of the relevance of their form. The
Court does not appear to give more or less weight to assurances
depending on whether the transfer resulted from an extradition
request107 or from deportation.108


   104.     Saadi, No. 37202/06, ¶ 148 (citations omitted) (emphasis added). For
discussion of “material time,” see supra note 97.
   105.      See, e.g., Sellem, No. 12584/08,¶ 18; Cherif v. Italy, No. 1860/07, ¶ 26
(Eur. Ct. H.R. Apr. 7, 2009), http://www.echr.coe.int; Abdelhedi, No. 2638/07, ¶
17; Ben Salah, No. 38128/06, ¶ 14; Bouyahia, No. 46792/06, ¶ 16; C.B.Z., No.
44006/06, ¶ 17; Darraji, No. 11549/05, ¶ 35; Hamraoui, No. 16201/07, ¶ 15; O, No.
37257/06, ¶ 18; Soltana, No. 37336/06, ¶ 20; Ben Khemais, No. 246/07, ¶ 27.
   106.      See, e.g., Shamayev v. Georgia & Russia, 2005-III Eur. Ct. H.R. 153,
243 (Court considers oral assurances, supplemented by written assurances, as
relevant evidence).
   107.      See, e.g., Gasayev v. Spain, No. 48514/06 (Eur. Ct. H.R. Feb. 17,
2009), http://www.echr.coe.int; Ismoilov v. Russia, No. 2947/06 (Eur. Ct. H.R. Apr.
24, 2008), http://www.echr.coe.int; Ryabikin, No. 8320/04.
   108.      See, e.g., Boumediene v. Bosnia & Herzegovina, No. 38703/06 (Eur.
Ct. H.R. Dec. 18, 2008), http://www.echr.coe.int.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                      261


                  b. Factors of Some Significance
         Factors that are somewhat significant to the weight of
assurances are the position of the individual or office providing the
assurances, the national security profile of the individual subject to
transfer, the possibility of post-transfer monitoring, and the content
and consistency of the assurances. The Court appears to attach
importance to the position and authority of the provider of
assurances to the extent that they indicate the “practical
application”109 of assurances. The Court has found assurances to be
insufficient where it doubts that the provider of assurances has the
capacity to actually guarantee protection against torture and
IDTP.110 The Court has not specified what characteristics the
provider of assurances should have. But the Court has expressed
skepticism as to the reliability of assurances in cases where the
receiving country has a reputation for widespread torture and the
assurances are provided by high-level officials111 or by officials whose
scope of authority is unclear.112
        Most of the post-Saadi cases have involved individuals with
national security profiles: some were accused or convicted of
terrorism-related crimes in the receiving country,113 some in the


   109.      Saadi, No. 37201/06, ¶ 148.
   110.      See infra note 111.
   111.      See Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831, 1861
(“Although the Court does not doubt the good faith of the Indian Government in
providing the assurances . . . it would appear that, despite the efforts of that
Government, the [Indian National Human Rights Commission] and the Indian
courts to bring about reform, the violation of human rights by certain members of
the security forces in Punjab and elsewhere in India is a recalcitrant and
enduring problem.”).
   112.      See, e.g., Sellem v. Italy, No. 12584/08, ¶ 41 (Eur. Ct. H.R. May 5,
2009), http://www.echr.coe.int; Ben Khemais v. Italy, No. 246/07, ¶ 59 (Eur. Ct.
H.R. Feb. 24, 2009), http://www.echr.coe.int (“La Cour note . . . qu’il n’est pas
établi que l’avocat général à la direction générale des services judiciaires [en
Tunisie] était compétent pour donner ces assurances au nom de l’Etat.”); see also
Soldatenko v. Ukraine, No. 2440/07, ¶ 73 (Eur. Ct. H.R. Oct. 23, 2008),
http://www.echr.coe.int (“The Court observes . . . that it is not at all established
that the First Deputy Prosecutor General [of Turkmenistan] or the Institution
which he represented was empowered to provide . . . assurances on behalf of the
State.”).
   113.      See, e.g., Yuldashev v. Russia, No. 1248/09, ¶ 11 (Eur. Ct. H.R. July 8,
2010), http://www.echr.coe.int; Khodzhayev v. Russia, No. 52466/08, ¶¶ 7, 35
(Eur. Ct. H.R. May 12, 2010), http://www.echr.coe.int; Sellem, No. 12584/08, ¶ 13;
Ben Khemais, No. 246/07, ¶ 15; Ismoilov v. Russia, No. 2947/06, ¶¶ 24–25 (Eur.
Ct. H.R. Apr. 24, 2008), http://www.echr.coe.int.
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sending country.114 National security profiles are not determinative.
In some cases, diplomatic assurances could be effective protection
against torture and IDTP for individuals associated with terrorism.115
In other cases, they could be ineffective protection for individuals
who posed no national security risk116 as well as individuals
associated with terrorism.117 In several cases, the Court suggested
that when the transfer was to receiving countries where individuals
associated with terrorism were at heightened risk of torture or IDTP,
diplomatic assurances would not mitigate this risk.118
        Like the national security profile of the individual subject to
transfer and the position of the individual or office providing the
assurances, the possibility of post-transfer monitoring is a significant


   114.      See Sellem, No. 12584/08, ¶ 8; Abdelhedi v. Italy, No. 2638/07, ¶ 7
(Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Ben Salah v. Italy, No.
38128/06, ¶ 7 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Bouyahia v.
Italy, No. 46792/06, ¶ 6 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int;
C.B.Z. v. Italy, No. 44006/06, ¶ 7 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int/echr.en/hudoc; Darraji v. Italy, No. 11549/05, ¶ 7 (Eur. Ct.
H.R. Mar. 24, 2009), http://www.echr.coe.int; Hamraoui v. Italy, No. 16201/07, ¶ 6
(Eur. Ct. H.R. Mar. 23, 2009), http://www.echr.coe.int; O v. Italy, No. 37257/06, ¶
7 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Soltana v. Italy, No.
37336/06, ¶ 7 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int.
   115.      See, e.g., Ahmad v. U.K., No. 24027/07, ¶ 4 (Eur. Ct. H.R. July 6,
2010), http://www.echr.coe.int (applicants were indicted on various charges of
terrorism in the U.S.); Al-Moayad v. Germany, No. 35865/03, ¶ 6 (Eur. Ct. H.R.
Feb. 20, 2007), http://www.echr.coe.int (applicant was charged in the U.S. with
providing money, weapons and communications equipment to terrorist groups);
Gasayev v. Spain, No. 48514/06, at 2 (Eur. Ct. H.R. Feb. 17, 2009),
http://www.echr.coe.int (receiving country, Russia, accused the individuals
subject to extradition of participation in a Chechen terrorist organization);
Boumediene v. Bosnia & Herzegovina, No. 38703/06, ¶¶ 10–13 (Eur. Ct. H.R. Dec.
18, 2008), http://www.echr.coe.int (applicants were suspected of planning a
terrorist attack on U.S. and U.K. embassies).
   116.      See, e.g., Kolesnik v. Russia, No. 26876/08, ¶¶ 21, 73 (Eur. Ct. H.R.
June 17, 2010), http://www.echr.coe.int (finding assurances insufficient in a case
involving an applicant charged with economic crimes and fraud); Ryabikin v.
Russia, No. 8320/04, ¶ 28 (Eur. Ct. H.R. June 19, 2008) (Turkmenistan sought
extradition of individual charged with financial crimes).
   117.      See, e.g., Yuldashev, No. 1248/09; Khodzhayev, No. 52466/08; Sellem,
No. 12584/08; Abdelhedi, No. 2638/07; Ben Salah, No. 38128/06; Bouyahia, No.
46792/06; C.B.Z., No. 44006/06; Darraji, No. 46792/06; Hamraoui, No. 16201/07;
O, No. 37257/06; Soltana, No. 37336/06; Ben Khemais, No. 246/07.
   118.      See Sellem, No. 12584/08, ¶ 36; Abdelhedi, No. 2638/07, ¶ 43; Ben
Salah, No. 38128/06, ¶ 32; Bouyahia, No. 46792/06, ¶ 35; C.B.Z., No. 44006/06, ¶
36; Darraji, No. 46792/06, ¶ 59; Hamraoui, No. 16201/07, ¶ 38; O, No. 37257/06, ¶
37; Soltana, No. 37336/06, ¶ 39; Ben Khemais, No. 246/07, ¶ 54.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                      263


factor in weighing assurances. The Court has repeatedly emphasized
that in the absence of an effective system of protection against
torture, it is difficult to verify that assurances will be respected.119
The Court has found assurances to be insufficient where there is
evidence of obstacles to post-transfer monitoring120 and where NGOs
have indicated that they are unable to monitor.121 In Gasayev v.
Spain, the Court found assurances to be sufficient where a post-
transfer monitoring mechanism was specified prior to transfer. In
response to requests for assurances from Spain, the Prosecutor
General of Russia guaranteed that the CAT Committee would be able
to have private visits with the applicant, that the detention
conditions would meet the requirements of Article 3, and that capital
punishment would not be imposed.122 Subsequently, the CAT
Committee indicated that visiting and monitoring the applicant was
not within its mandate, and the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) also declined to do so.123 Spanish diplomatic
personnel in Moscow agreed to monitor the applicant, and the
applicant was accordingly extradited.124


    119.      See, e.g., Kolesnik, No. 26876/08, ¶ 73 (noting that in earlier cases,
“the Court was . . . unwilling to accept the diplomatic assurances furnished by the
Turkmen Government, given that there appeared no objective means to check
whether they had been fulfilled”) (citations omitted); Sellem, No. 12584/08, ¶ 41
(stating that the Court was not convinced of “l’existence d’un système effectif de
protection contre la torture, en l’absence duquel il est difficile de vérifier que les
assurances données seront respectées”).
    120.      See, e.g., Sellem, No. 12584/08, ¶ 42 (noting the reluctance of
Tunisian authorities to cooperate with independent human rights organizations
such as Human Rights Watch and the difficulty of access to prisoners by
attorneys representing them before international tribunals such as the ECTHR).
    121.     See, e.g., id. ¶ 36 (Red Cross).
    122.      Gasayev v. Spain, No. 48514/06, at 2–3 (Eur. Ct. H.R. Feb. 17, 2009),
http://www.echr.coe.int (citing the September 2007 assurance that “le Comité
contre la Torture pourra visiter [le requérant] et s’entretenir avec lui . . . . Par
ailleurs, les conditions de détention ne seront ni inhumaines ni dégradantes pour
la dignité humaine et s’accorderont avec les exigences de l’article 3 de la
Convention européenne des Droits de l’Homme . . . . L’immunité physique et
psychique du détenu sera respectée. Conformément à la signature par la Russie
du Protocole no. 6 à la Convention européenne, la peine capitale n’est pas
appliquée en tant que condamnation exclusive”; November 2007 assurances that
the applicant’s deprivation of liberty would not exceed 25 years; December 2007
commitment by the Russian Prosecutor General to allow the applicant to
communicate privately with United Nations personnel).
    123.     Id. at 4.
    124.     Id. at 4–5.
264        COLUMBIA HUMAN RIGHTS LAW REVIEW                             [42:233


         Finally, the content and consistency of assurances is
significant to some extent in determining the weight of assurances.
In several cases since Saadi, the Court has raised the lack of specific,
explicit guarantees against torture and IDTP as a reason to discount
assurances. In Kaboulov v. Ukraine, the Court deemed that the
assurances “do not specifically exclude that the applicant would be
subjected to treatment contrary to Article 3, and so cannot suffice to
exclude the serious risks” of torture or IDTP.125 Similarly, in
Muminov v. Russia, the Uzbek Prosecutor General’s Office provided
assurances relating only to the applicant’s extradition.126 Russia cited
these assurances as evidence that the applicant would not be
subjected to treatment prohibited by Article 3 upon their return to
Uzbekistan,127 but the Court found them to be insufficient protection
from torture or IDTP.128 More recently, in Khaydarov v. Russia, the
Court found letters from receiving country Tajikistan to be
insufficient, noting, among other reasons, that they “contained no
reference whatsoever to the protection of the applicant from
treatment proscribed by Article 3 of the Convention.”129

                  c. Most Significant Factor: The                    Receiving
                     Country’s Human Rights Record
       Guarantees against torture and IDTP are not enough by
themselves, no matter how specific or explicit. Under Saadi, “the


   125.      Kaboulov v. Ukraine, No. 41015/04, ¶ 113 (Eur. Ct. H.R. Nov. 19,
2009), http://www.echr.coe.int. The General Prosecutor’s Office of Kazakhstan
had provided assurances, in September 2004, that the applicant would not be
prosecuted for criminal offenses different from those mentioned in extradtion
proceedings without the consent of Ukrainian authorities. In December 2004,
again, the Office provided additional assurance that the applicant would not be
subject to the death penalty and that “his rights and lawful interests in the
course of criminal proceedings would be adequately protected.” Id. ¶¶ 33–34.
   126.      Muminov v. Russia, No. 42502/06, ¶ 12 (Eur. Ct. H.R. Dec. 11, 2008)
(noting the March 2006 assurances that the applicant “would not be surrendered
to another State without Russia’s consent and would not be prosecuted or
punished for any offence committed prior to his extradition and for which
extradition would have been refused; and that he would be able to leave
Uzbekistan after being tried and serving his sentence”).
   127.     Id. ¶ 79.
   128.     Id. ¶¶ 97–98.
   129.     Khaydarov v. Russia, No. 21055/09, ¶ 111 (Eur. Ct. H.R. May 20,
2010), http://www.echr.coe.int. See also Klein v. Russia, No. 24268/08 ¶ 55 (Eur.
Ct. H.R. Apr. 1, 2010), http://www.echr.coe.int (observing that the assurances
provided were “rather vague and lacked precision; hence, [the Court] is bound to
question their value”).
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                      265


existence of domestic laws and accession to international treaties
guaranteeing respect for fundamental rights in principle are not in
themselves sufficient to ensure adequate protection against the risk
of ill-treatment where . . . reliable sources have reported practices
resorted to or tolerated by the authorities which are manifestly
contrary to the principles of the [ECHR].”130 The Court forcefully
reaffirmed this standard in a string of cases since Saadi,
demonstrating that the most important factor in evaluating the
weight of assurances is the human rights record of the receiving
country.

                            i.   Rejection of Assurances               Based     on
                                 Human Rights Record
         In two 2008 cases involving diplomatic assurances after
Saadi, the assurances specifically referred to torture and IDTP, but
the Court nevertheless deemed them ineffective protection under
Article 3. In Ismoilov v. Russia, the First Deputy Prosecutor General
of Uzbekistan communicated assurances twice within one month:
first, addressing the applicants’ extradition;131 and second, asserting
that the applicants would be provided with fair legal process and not
be subjected to the death penalty, persecution, torture or IDTP.132
But the ECTHR, citing Chahal and Saadi, declared that “[g]iven that
the practice of torture in Uzbekistan is described by reputable
international experts as systematic . . . the Court is not persuaded
that the assurances from the Uzbek authorities offered a reliable
guarantee against the risk of ill-treatment.”133 In Soldatenko v.


   130.      Saadi v. Italy, No. 37201/06, ¶ 147 (Eur. Ct. H.R. Feb. 2, 2008),
http://www.echr.coe.int.
   131.     Ismoilov v. Russia, No. 2947/06, ¶ 30 (Eur. Ct. H.R. Apr. 24, 2008),
http://www.echr.coe.int (discussing the July 2005 assurance that “without
Russia’s consent the applicants would not be extradited to a third-party State, or
prosecuted or punished for any offences committed before extradition and which
were not mentioned in the extradition request” and that “after serving their
sentences [the applicants] would be free to leave Uzbekistan”).
   132.    Id. ¶ 31 (referring to the July 2005 assurances that “the applicants
would not be subjected to the death penalty, torture, violence or other forms of
inhumane or degrading treatment or punishment”; that “[t]heir rights of defence
would be respected and they would be provided with counsel”; that “the Uzbek
authorities had no intention of persecuting the applicants out of political motives,
on account of their race, ethnic origin, or religious or political beliefs”; that the
“intention [of Uzbek authorities] was to prosecute the applicants for the
commission of particularly serious crimes”).
   133.    Id. ¶ 127.
266         COLUMBIA HUMAN RIGHTS LAW REVIEW                                [42:233


Ukraine, the Court rejected similar assurances provided by the
General Prosecutor’s Office134 and First Deputy Prosecutor General of
Turkmenistan,135 even though they explicitly guaranteed compliance
with Article 3.
        During 2009, the Court issued judgments in eleven cases
brought by applicants who faced removal or who had already been
removed by Italy to Tunisia, determining in all but one case that
removal of the applicants did or would violate Article 3
notwithstanding the provision of diplomatic assurances.136 In all of
these cases, the Tunisian assurances specified that Tunisian law
respected the dignity of all persons, the right to a fair trial, the right
to have private visits with family members and an attorney, and the
right to medical care; pointed out that Tunisia had ratified the
Convention Against Torture without any reservation and recognized
the competence of the CAT Committee to hear individual complaints;



   134.     Soldatenko v. Ukraine, No. 2440/07, ¶ 16 (Eur. Ct. H.R. Oct. 23, 2008),
http://www.echr.coe.int (discussing the January 2007 assurances addressing
extradition and stating that the applicant “had never been and would never be
discriminated against on the grounds of social status, race, ethnic origin or
religious beliefs”).
   135.     Id. ¶ 20 (citing the April 2007 assurances noting the abolishment of
the death penalty and stating that “the requirements of Article 3 of the [ECHR]
will be fulfilled in respect of N.I. Soldatenko, he will not be subjected to torture,
inhuman or degrading treatment or punishment after extradition; in case of
necessity he will be provided with appropriate medical treatment and medical
assistance; the right to fair judicial consideration of his criminal case will be
secured to him”).
   136.       Sellem v. Italy, No. 12584/08 (Eur. Ct. H.R. May 5, 2009), ¶¶ 43–44,
http://www.echr.coe.int; Abdelhedi v. Italy, No. 2638/07, ¶¶ 50–51 (Eur. Ct. H.R.
Mar. 24, 2009), http://www.echr.coe.int; Ben Salah v. Italy, No. 38128/06, ¶¶ 39–
40 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Bouyahia v. Italy, No.
46792/06, ¶¶ 42–43 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; C.B.Z.
v. Italy, No. 44006/06, ¶¶ 43–44 (Eur. Ct. H.R. Mar. 24, 2009),
http://www.echr.coe.int/echr.en/hudoc; Darraji v. Italy, No. 11549/05, ¶¶ 66–67
(Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; O v. Italy, No. 37257/06,
¶¶ 44–45 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int; Soltana v. Italy,
No. 37336/06, ¶¶ 46–47 (Eur. Ct. H.R. Mar. 24, 2009), http://www.echr.coe.int;
Hamraoui v. Italy, No. 16201/07, ¶¶ 45–46 (Eur. Ct. H.R. Mar. 23, 2009),
http://www.echr.coe.int; Ben Khemais v. Italy, No. 246/07, ¶¶ 61–65 (Eur. Ct.
H.R. Feb. 24, 2009), http://www.echr.coe.int. The one exception was Cherif, where
the Court did not address the substantive application of Article 3 because of the
applicant’s failure to provide a power of attorney document authorizing the
named party to pursue the case. Cherif v. Italy, No. 1860/07, ¶¶ 50–51 (Eur. Ct.
H.R. Apr. 7, 2009), http://www.echr.coe.int (unlike other cases, not explicitly
referencing the content of the Tunisian assurances).
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                    267


and claimed that places of detention were monitored by various
government bodies and the Red Cross.137
        A comparison of the portions of the Tunisian assurances
quoted in the ECTHR judgments suggests that in all of the Italy-
Tunisia cases, the Tunisian authorities provided the same formulaic
assurances, simply inserting the relevant applicant’s name in a
lengthy standardized document; in fact, most of the assurances were
provided on the same day.138 The assurances for the two applicants
who had already been removed were more individualized: they
contained information on events that occurred in Tunisia following
the applicant’s return, such as judicial procedures, convictions, and
sentences.139 In the assurances for the applicant who had already
been removed and was still in detention at the time of the ECTHR
proceedings, the Tunisian authorities also included a statement that
he had not been subjected to torture or IDTP, a note that he had not
submitted any complaint at his place of detention, a medical report,
logs indicating the dates of visits by his Tunisian attorney and family
members, and an explanation that his ECTHR attorney and the
Italian ambassador to Tunisia were not permitted to visit under
Tunisian law.140
        The ECTHR reached the same conclusion in all of the Italy-
Tunisia cases. The Court stated that it could not subscribe to the
Italian government’s view that the assurances offer effective
protection against the serious risk the applicant faces of being
subjected to treatment prohibited by Article 3.141 The Court cited the


    137.    See Sellem, No. 12584/08, ¶ 18; Cherif, No. 1860/07, ¶ 26; Abdelhedi,
No. 2638/07, ¶ 17; Ben Salah, No. 38128/06, ¶ 14; Bouyahia, No. 46792/06, ¶ 16;
C.B.Z., No. 44006/06, ¶ 17; Darraji, No. 11549/05, ¶ 35; O, No. 37257/07, ¶ 18;
Soltana, No. 37336/06, ¶ 20; Hamraoui, No. 16201/07, ¶ 15; Ben Khemais, No.
246/07, ¶ 27.
    138.   See Sellem, No. 12584/08, ¶ 18 (assurances provided Jan. 3, 2009);
Cherif, No. 1860/07, ¶ 26 (Nov. 5, 2008); No. 2638/07, ¶ 17 (Nov. 5, 2008); Ben
Salah, No. 38128/06, ¶ 14 (Nov. 5, 2008); Bouyahia, No. 46792/06, ¶ 16 (Nov. 5,
2008); C.B.Z., No. 44006/06, ¶ 17 (Nov. 5, 2008); Darraji, No. 11549/05, ¶ 35 (Nov.
5, 2008); O, No. 37257/07, ¶ 18 (Nov. 5, 2008); Soltana, No. 37336/06, ¶ 20 (Nov.
5, 2008); Hamraoui, No. 16201/07, ¶ 15 (Nov. 5, 2008); Ben Khemais, No. 246/07,
¶ 27 (Aug. 26, 2008).
    139.    See Cherif, No. 1860/07, ¶ 26; Ben Khemais, No. 246/07, ¶¶ 27–28.
    140.    Ben Khemais, No. 246/07, ¶¶ 27–28.
    141.     See, e.g., id. ¶ 61 (“[L]a Cour ne saurait souscrire à la thèse du
Gouvernement selon laquelle les assurances données en la présente espèce
offrent une protection efficace contre le risque sérieux que court le requérant
d'être soumis à des traitements contraires à l'article 3 de la Convention.”).
268         COLUMBIA HUMAN RIGHTS LAW REVIEW                                [42:233


observations it had made in Saadi—that there were numerous and
regular reports of individuals suspected or found guilty of terrorism
being subjected to torture or ill treatment, that allegations of ill
treatment were not investigated, that there was no effective system
of protection against torture to verify that assurances were
respected, and that Tunisian authorities were reluctant to cooperate
with independent human rights organizations such as Human Rights
Watch—and observed that these allegations of ill treatment were
substantiated by a more recent report by Amnesty International.142
Thus, in the Italy-Tunisia cases, the Court affirmed that even
assurances containing references to international human rights
treaties, guarantees of specific rights, and individualized information
may not constitute protection against treatment prohibited by Article
3 where the receiving country has a poor record of monitoring and
protecting detainees from torture and ill treatment.
        The ECTHR maintained this focus on the receiving country’s
human rights record in another 2009 case finding that removal of the
applicants would violate Article 3 and that the assurances provided
by the receiving country were insufficient protection against torture
and IDTP. In Koktysh v. Ukraine, the General Prosecutor’s Office of
Belarus gave various assurances against, inter alia, the death
penalty, torture and ill treatment,143 but the Court found that they
would not guarantee against the serious risk of ill treatment because
international and nongovernmental bodies reported human rights
violations in Belarus in general, and the applicant in particular had
already been ill-treated by Belarusian authorities in the past.144

                            ii. Acceptance of Assurances and Human
                                Rights Record
        The ECTHR emphasizes the reputation of the receiving
country not only in cases where assurances are deemed insufficient
protection against torture and IDTP, but also in cases where they are


   142.       See, e.g., id. ¶¶ 54–60 (citing Saadi v. Italy, No. 37201/06, ¶¶ 143–46
(Eur. Ct. H.R. Feb. 28, 2008), http://www.echr.coe.int).
   143.      Koktysh v. Ukraine, No. 43707/07, ¶¶ 16, 19 (Eur. Ct. H.R. Oct. 12,
2009), http://www.echr.coe.int (citing July 2007 assurances that “Koktysh I.G.
would be tried only for the crimes he was extradited for, and he would not be
sentenced to the death penalty”; October 2007 assurances that the applicant
would not be tortured, ill-treated or discriminated against, would be given a fair
trial. If necessary, he would be provided medical assistance and treatment.”).
   144.      Id. ¶ 64.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                    269


deemed sufficient. The Court accepted assurances as sufficient and
found no violation of Article 3 in Gasayev v. Spain, a case involving
the extradition of a Russian national of Chechen ethnicity who
allegedly belonged to a terrorist organization.145 The Court observed
that the assurances guaranteed that detention conditions would meet
the requirements of Article 3, and that Spanish diplomatic personnel
had agreed to monitor.146 The Court further stated that as a High
Contracting Party to the ECHR, Russia has committed to respect the
rights and principles therein.147 Notably, the Court made no reference
to Shamayev,148 the 2005 case in which Russia was found to be in
violation of the ECHR for obstructing the Court’s access to the
applicants.
        The ECTHR’s treatment of diplomatic assurances from the
United States demonstrates the importance the Court attaches to a
receiving country’s human rights record. The Court accepted
diplomatic assurances from the United States in Boumediene and
Others v. Bosnia and Herzegovina,149 Al-Moayad v. Germany,150 and
Ahmad v. U.K.151 In each of these cases, the Court suggested that the
U.S. has a positive human rights record, at least with regard to
situations like the ones in which the applicants found themselves.
       In Boumediene, the six applicants were all Algerian citizens;
three were also citizens of Bosnia and Herzegovina (BH) at the time
of the ECTHR decision.152 The applicants were all detained in
October 2001 and accused, based in large part on U.S. intelligence, of
planning a terrorist attack on the U.S. and U.K. embassies in
Sarajevo.153 BH sought to remove the applicants in January 2002.


    145.    Gasayev v. Spain, No. 48514/06, at 8 (Eur. Ct. H.R. Feb. 17, 2009),
http://www.echr.coe.int (deeming the applicant’s Article 3 claim manifestly ill-
founded and therefore inadmissible).
    146.    Id. at 4. For a more detailed description of negotiations on monitoring
in the Gasayev case, see supra Part II.C.2.b.
    147.    Id. at 8.
    148.    For a discussion of Shamayev, see supra note 91.
    149.    Boumediene v. Bosnia & Herzegovina, No. 38703/06 (Eur. Ct. H.R.
Dec. 18, 2008), http://www.echr.coe.int.
    150.    Al-Moayad v. Germany, No. 35865/03 (Eur. Ct. H.R. Feb. 20, 2007),
http://www.echr.coe.int.
    151.    Ahmad v. United Kingdom, No. 24027/07 (Eur. Ct. H.R. July 6, 2010),
http://www.echr.coe.int.
    152.    Boumediene, No. 38703/06, ¶ 1. The applicants’ immigration status in
BH went through several changes from their initial arrest in October 2001 to the
time of the ECTHR decision. See id. ¶¶ 3–8, 15–17, 27, 29, 47.
    153.    Id. ¶¶ 10–13.
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Algeria refused to accept them, but the U.S. agreed and took custody
of the applicants the next day, eventually transferring them to
detention facilities at the U.S. Naval Base in Guantánamo Bay.154
U.S. and BH diplomatic authorities communicated regarding the
applicants on several occasions following the transfer of custody155
and BH authorities made one visit to the BH citizens detained at
Guantánamo.156 The ECTHR accepted American assurances as
evidence that the government of BH was “taking all possible steps to
the present date to protect the basic rights of the applicants” as
required by BH domestic law.157 Like the Gasayev decision, the
Boumediene decision conspicuously downplayed problems in the
receiving State’s human rights record that had obvious relevance to
the case at hand. The Court quoted a U.N. report and a
Parliamentary Assembly of the Council of Europe (PACE) resolution
addressing U.S. rendition programs and alleged abuse at
Guantánamo,158 but did not discuss these issues. The Court made no
mention of Abu Ghraib prison abuse, another notorious human rights
violation perpetrated by U.S. authorities against foreign detainees
associated with terrorism held outside the U.S. The Court appeared
to avoid emphasizing facts that would suggest that the U.S. did not
have an entirely positive human rights record.
       In Al-Moayad,159 the Court acknowledged problems in the
United States’ human rights record, but distinguished the situations
where those problems occurred from the applicant’s situation. The


   154.     Id. ¶¶ 18, 20, 23.
   155.     In one communication, the U.S. stated that individuals detained at
Guantánamo have due process and access to federal courts to file writs of habeas
corpus. Id. ¶ 42. In a later communication, at the request of BH authorities, the
U.S. Embassy in Sarajevo affirmed that the U.S. is a party to the Geneva
Conventions and CAT, that these conventions and U.S. domestic law prohibit
torture and cruel, humiliating and degrading treatment, and that military
commissions do not contemplate the death penalty as a potential sentence; the
U.S. embassy in Sarajevo further conveyed its understanding that the
Department of Defense did not intend to seek the death penalty in the applicants’
cases. Id. ¶ 50.
   156.      Id. ¶¶ 32–40.
   157.      Id. ¶ 67. The Court did not apply Article 3, as it declined to resolve
the issue of whether it had jurisdiction over Bosnia and Herzegovina
notwithstanding the fact that the applicants were transferred to U.S. custody
before the entry into force of the ECHR with respect to Bosnia and Herzegovina.
See id ¶ 62.
   158.     Id. ¶ 53.
   159.     Al-Moayad v. Germany, No. 35865/03 (Eur. Ct. H.R. Feb. 20, 2007),
http://www.echr.coe.int.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                   271


applicant Al-Moayad was an imam and adviser to the Yemeni
government.160 U.S. authorities requested his extradition from
Germany on the basis that he had been charged “with providing
money, weapons and communications equipment to terrorist groups,
notably Al-Qaeda and Hamas, and with recruiting new members for
these groups.”161 The U.S. Embassy provided assurances that Al-
Moayad would not be prosecuted by a military tribunal or by any
other extraordinary court;162 he was subsequently extradited after
failing in his appeals to German courts.163 The ECTHR accepted the
assurances as sufficient protection against torture and IDTP under
Article 3.164 Although the Court acknowledged reports that
individuals in U.S. custody had been subjected to “interrogation
methods at variance with the standards of Article 3,”165 and stated
that the Court was “gravely concerned” in this regard,166 the Court
emphasized that such reports involved individuals detained “outside
the [U.S.] national territory, notably in Guantánamo Bay (Cuba),
Bagram (Afghanistan) and some other third countries,”167 and were
therefore inapplicable to Al-Moayad, who was to be detained within
the U.S. following his extradition.168 Thus, in accepting U.S.
assurances, the ECTHR strove to show that the U.S. maintained a
positive human rights record, at least with regard to the applicant’s
particular situation.
        Like Boumediene and Al-Moayad, the recent case of Ahmad
v. U.K.169 presented the ECTHR with an opportunity to assess
diplomatic assurances provided by U.S. authorities for the transfer of
individuals suspected of involvement in terrorism-related crimes.170
But whereas in Boumediene and Al-Moayad, the Court accepted U.S.
assurances and dismissed all of the applicants’ Article 3 claims at the


   160.     Id. ¶ 1.
   161.     Id. ¶ 6.
   162.     Id. ¶ 13.
   163.     Id. ¶ 24.
   164.     Id. ¶ 71.
   165.     Id. ¶ 69.
   166.     Id. ¶ 66.
   167.     Id.
   168.     Id. ¶ 70 (“[I]n the absence of reports denouncing the ill-treatment of
terrorist suspects such as the applicant detained in regular detention facilities
within the USA, the applicant has failed” to meet his burden under Article 3).
   169.     Ahmad v. United Kingdom, No. 24027/07 (Eur. Ct. H.R. July 6, 2010),
http://www.echr.coe.int.
   170.     Id. ¶ 4 (noting that the applicants had been indicted on various
charges of terrorism in the U.S.).
272        COLUMBIA HUMAN RIGHTS LAW REVIEW                               [42:233


admissibility stage of proceedings,171 in Ahmad, in an unusually
lengthy 73-page admissibility decision, the Court dismissed some of
the applicants’ Article 3 claims,172 but decided that certain of the
applicants’ Article 3 claims were admissible for further examination
on the merits.173 Of particular note, the Court gave considerable
attention to diplomatic assurances in its discussion of the applicants’
potential designation as enemy combatants and their resultant risk
of treatment contrary to Article 3. The Court stated at the outset
that, in the assessment of Diplomatic Notes, “it is appropriate that [a
presumption of good faith] be applied to a requesting State which has
a long history of respect for democracy, human rights and the rule of
law . . . .”174 This good-faith presumption arising out of the U.S.
human rights record—in combination with other factors such as the
specificity of the assurances and the lack of evidence that the U.S.
had ever breached its assurances in the past—led the Court to find
inadmissible the applicants’ claim that U.S. authorities may
designate the applicants enemy combatants in breach of their
assurances.175 In this way, in Ahmad, the Court’s discussion of U.S.
assurances reaffirmed the importance of the receiving country’s
human rights record.
         Ahmad is notable not only for its affirmation of standards
established in the past, but also for its indication of the possibility for
new developments in the future. In this admissibility decision, the
Court decided to examine further some of the applicants’ Article 3
claims; it remains to be seen whether the Court will make a more
critical assessment of the United States’ human rights record and
diplomatic assurances in the judgment on the merits. Even if the
Court ultimately does not take a more critical stance, Ahmad
demonstrates that the Court’s degree of scrutiny of a receiving
country’s human rights record is subject to change.


   171.     Boumediene v. Bosnia & Herzegovina, No. 38703/06, ¶¶ 67–68 (Eur.
Ct. H.R. Dec. 18, 2008), http://www.echr.coe.int; Al-Moayad v. Germany, No.
35865/03, ¶¶ 103–08 (Eur. Ct. H.R. Feb. 20, 2007), http://www.echr.coe.int.
   172.     Ahmad, No. 24027/07, ¶¶ 110, 116, 119, 161–80 (finding inadmissible
the applicants’ claims regarding designation as enemy combatants, extraordinary
rendition, death penalty, pretrial detention, use of evidence allegedly obtained in
breach of Article 3, and various other issues).
   173.     Id. ¶¶ 146–47, 153–54 (finding admissible the first, second and third
applicants’ claims regarding post-trial detention in a supermax facility and the
imposition of special administrative procedures; finding admissible all four
applicants’ claims regarding the length of their possible sentences).
   174.      Id. ¶ 105.
   175.      See id. ¶¶ 107–09.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                273


        Taken together, the ECTHR’s jurisprudence since Saadi
suggests that the most important factor to assess the weight to give
assurances is the human rights record of the receiving country. The
authority of the individual or office providing the assurances is
significant to some extent, as is the feasibility of post-transfer
monitoring. The assurances’ content—citations to international
human rights treaties, detailed information about the individual
applicant—appears to matter less than the receiving State’s human
rights record, through the Court does seek specific guarantees of
protection against torture and IDTP. The assurances may be reliable
or unreliable whether they are oral or written, provided in the
extradition or deportation context, related to terrorism or not. The
Court considers all these factors to determine the reliability of
assurances on a case-by-case basis, subjecting diplomatic assurances
against torture and ill treatment to thorough judicial review, even
when they involve the transfer of suspected terrorists.

D. Future Importance of European Court of Human Rights
   Jurisprudence
        The European Parliament,176 the Parliamentary Assembly of
the Council of Europe (PACE),177 the Commissioner for Human
Rights,178 and the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT)179
appear to be moving toward restricting the circumstances in which
diplomatic assurances against torture should be relied upon. But
even as European intergovernmental institutions settle into a
position, national governments remain in disarray. Substantial
differences in national policy, which became apparent through the
work of the DH-S-TER in 2005-2006,180 have persisted.181 The


   176.      See supra Part I.C.2.a.
   177.      See supra Part I.C.1.a.
   178.      See supra Part I.C.1.a.
   179.      See supra Part I.C.1.b.
   180.      See supra Part I.D.
   181.      Among international human rights advocacy groups, Amnesty
International and Human Rights Watch, in particular, have regularly reported in
English on developments in the diplomatic assurances policies of national
governments in Europe prior to and following selection of this Note for
publication in March 2010. See, e.g., Amnesty International, Dangerous Deals:
Europe’s Reliance on “Diplomatic Assurances” Against Torture (2010), available
at    http://www.amnesty.org/en/library/asset/EUR01/012/2010/en/608f128b-9eac-
4e2f-b73b-6d747a8cbaed/eur010122010en.pdf [hereinafter Amnesty International
274        COLUMBIA HUMAN RIGHTS LAW REVIEW                               [42:233


Netherlands has maintained a strong stance against reliance on
diplomatic assurances against torture.182 In contrast, Denmark183 and
Switzerland184 have shown signs of increasing acceptance of their


Dangerous Deals]; Carol Bogart, Human Rights Watch, The “Stamp of
Guantanamo”: the Story of Seven Men Betrayed by Russia’s Diplomatic
Assurances to the United States (2007) (Human Rights Watch Vol. 19, No. 2(D)),
available at http://www.hrw.org/en/node/10989/section/1; Human Rights Watch,
Cases Involving Diplomatic Assurances Against Torture: Developments Since
May 2005 (2007), available at http://www.hrw.org/en/reports/2008/12/15/cases-
involving-diplomatic-assurances-against-torture      [hereinafter    HRW       Case
Developments Since May 2005]; Julia Hall, Human Rights Watch, Still at Risk:
Diplomatic Assurances No Safeguard Against Torture (2005) (Human Rights
Watch Vol. 17, No. 4(D)), available at http://www.hrw.org/en/reports/
2005/04/14/still-risk-0 [hereinafter HRW Still At Risk]; Julia Hall, Human Rights
Watch, Empty Promises: Diplomatic Assurances No Safeguard Against Torture
(2004), available at http://www.hrw.org/en/reports/2004/04/14/empty-promises-0.
   182.      Turkey requested the extradition of Nuriye Kesbir, an official of the
Kurdish Worker’s Party, alleging that she had committed war crimes. On
September 15, 2006, the Dutch Supreme Court upheld a lower court’s decision
halting Kesbir’s extradition and affirmed its finding that Turkey’s diplomatic
assurances against torture and ill treatment were insufficient to guarantee that
Kesbir would not be subjected to such treatment. See HRW Case Developments
Since May 2005, supra note 181, at 11–12; HRW Still At Risk, supra note 181, at
72–76. In May 2007, a delegation from the Netherlands stated to the Committee
Against Torture that the government had never transferred an individual to a
risk of torture on the basis of diplomatic assurances, observing that “[t]he
weaknesses of that concept were apparent.” See Open letter from Holly Cartner,
Exec. Dir., Eur. & Cent. Asia Div., Human Rights Watch, to Micheline Calmy-Rey
(June 28, 2007), available at http://www.hrw.org/en/news/2007/06/27/reply-letter-
swiss-government [hereinafter Open Letter from Human Rights Watch to
Micheline Calmy-Rey, President of the Swiss Confederation].
   183.      See Open letter from Amnesty International, to Lene Espersen, Den.
Minister       for      Justice     (June     18,      2008),     available      at
http://www.amnesty.org/library/asset/EUR18/004/2008/en/e849d6e3-4113-11dd-
a280-615aa3eb3c6f/eur180042008eng.pdf (referring to comments made by the
Minister to the Danish press which “appeared to signal a new willingness to
contemplate reliance on assurances”).
   184.       In 2008 Human Rights Watch reported that in recent years,
“Switzerland has sought and secured diplomatic assurances against torture and
other ill-treatment from Georgia, Kazakhstan, Russia, Tunisia, and Turkey,
among others, in its effort to extradite foreign nationals, some of whom faced
terrorism charges in the requesting country.” See Human Rights Watch,
Universal      Periodic   Review      of  Switzerland     (2008),    available   at
http://www.hrw.org/en/news/2008/05/04/universal-periodic-review-switzerland.
See also Open letter from Human Rights Watch to Micheline Calmy-Rey,
President of the Swiss Confederation, supra note 182 (citing an April 2007 letter
from Swiss authorities indicating the government’s acceptance of the use of
diplomatic assurances in extradition cases, but not in ordinary returns cases).
Such action represents a departure from Switzerland’s earlier expressions of
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                                     275


use, and the U.K. has mobilized on an international level to garner
support for a policy of deportation with assurances.185 Germany
seems to have had differences of opinion within its own government,
with at least one court minimizing the weight of diplomatic
assurances in its assessment of real risk of torture186 while the
Ministry of the Interior published regulations permitting the use of
assurances in cases involving terrorism.187
        Such differences in domestic policy have prevented European
institutions from moving further forward. In February 2009, two
years after the European Parliament adopted the TDIP Committee’s
final report, the European Parliament adopted another resolution in
which it “[denounced] the lack of action taken so far by the Member
States and the [European] Council to shed light on the extraordinary
rendition     programme      and    to    implement     Parliament’s




opposition in 2005 and 2006. See Open letter from Human Rights Watch, to
Micheline Calmy-Rey, Switz. Foreign Minister & Moritz Leuenberger, President
of the Swiss Confederation (Dec. 14, 2006), available at http://www.hrw.org/en/
news/2006/12/14/letter-swiss-government-regarding-diplomatic-assurances (citing
opposition expressed by the Swiss representative to the Human Rights Council in
September 2006, and by the Swiss delegation to the DH-S-TER in December 2005
and March 2006). For a description of the DH-S-TER, see supra Part I.D.
   185.     See Julia Hall, Human Rights Watch, Not the Way Forward: the UK’s
Dangerous Reliance on Diplomatic Assurances 25 (2008), available at
http://www.hrw.org/en/node/75603/section/1.
   186.     A German court in Düsseldorf questioned the sufficiency of diplomatic
assurances in two cases. One case involved an unnamed Tunisian man who was
ordered in March 2006 deported for allegedly supporting an association linked to
terrorism and for constituting a danger to the free democratic basic order of the
German state. He filed an asylum application in April 2006, which was rejected
in September 2007, largely on the basis of oral assurances received from the
Tunisian government that X's human rights would be respected upon return. In
March 2009, the Administrative Court in Düsseldorf halted his deportation
despite the diplomatic assurances. The court found that the assurances were “not
legally binding . . . and by nature hardly trustworthy or verifiable,” and would not
protect X against torture or ill-treatment.” In the second case, in January 2009,
the Administrative Court in Düsseldorf halted the deportation of a Jordanian
terrorism suspect. Although German authorities had not sought diplomatic
assurances from Jordan, the court preemptively rejected the possibility that
assurances could allow deportation to go forward. See Open letter from Human
Rights Watch, to Wolfgang Schäuble, F.R.G. Interior Minister (July 21, 2009),
available at http://www.hrw.org/en/news/2009/07/21/letter-german-government-
regarding-diplomatic-assurances [hereinafter HRW Open Letter to German
Interior Minister].
   187.     See Amnesty International Dangerous Deals 22–24.
276        COLUMBIA HUMAN RIGHTS LAW REVIEW                            [42:233


recommendations.”188 As of July 2010, the European Council still has
not implemented the TDIP committee’s recommendation to adopt a
common position prohibiting diplomatic assurances as a basis for
extradition where there are substantial grounds for believing that
individuals would be in danger of torture or ill treatment.
        As one of the most highly respected human rights tribunals
in the world, and the leading authority on the interpretation of the
ECHR, the European Court of Human Rights plays a critical role in
the development of diplomatic assurances policy. In its final activity
report, the DH-S-TER stated that “[c]ertain experts could envisage
further consideration to be given at a later stage to the
appropriateness of a legal instrument, particularly once the
European Court of Human Rights had ruled on these issues.”189 The
position of the Court regarding diplomatic assurances against torture
and ill treatment, as developed in Saadi v. Italy and subsequent
cases, will shape European intergovernmental policy and national
practices in the coming years and should inform U.S. policymakers as
well.

                               CONCLUSION

        The European Court of Human Rights has built upon its
experience with assurances against the death penalty in the context
of extradition, and responded to the emergence of terrorism as a
dominant international concern. A review of recent European Court
of Human Rights opinions in cases involving diplomatic assurances
reveals the Court’s settled positions that: (1) The judiciary, not only
the executive, can and should assess diplomatic assurances; (2) When
assessing diplomatic assurances in a particular case, the human
rights record of the receiving country should be primary, with some
significance accorded to the identity of the provider of the
assurances, the national security profile of the individual subject to
transfer, the possibility of post-transfer monitoring, and the content
and consistency of the assurances. In cases of transfer to countries
with very poor human rights records, virtually no assurances would



   188.    Alleged Use of European Countries by the CIA for the Transportation
and Illegal Detention of Prisoners, Eur. Parl. Doc. P6_TA(2009)0073, para. I(1)
(2009), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P6-TA-2009-0073+0+DOC+XML+V0//EN&language=EN.
   189.    DH-S-TER Second Meeting Report, supra note 76, at Appendix III,
para. 18.
2010] DIPLOMATIC ASSURANCES AGAINST TORTURE                 277


offer sufficient protection. U.S. policymakers should take into
account that the Court, in its experience reviewing cases from
numerous European States facing the threat of terrorism, has
determined that these two principles are essential to protect
transferred individuals from torture and ill treatment.

				
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