Eroding the Absolute Character of the Principle of Non-Refoulement?

158 Pages·2013·1.19 MB·English

by  Yannick Ghelen

Eroding the Absolute Character of the Principle of Non-Refoulement?
A Comparative Study of the Use of Diplomatic Assurances Against Torture
By Yannick Ghelen

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HR MA – LONG THESIS
Supervisor: Charlotte Steinorth, Assistant Professor
Central European University
1051 Budapest, Nador utca 9
Hungary
© Central European University November 29, 2013
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Table
 of
 Contents

TABLE
 OF
 CONTENTS
  II

EXECUTIVE
 SUMMARY
  IV

LIST
 OF
 FIGURES
  V

LIST
 OF
 ABBREVIATIONS
  VI

INTRODUCTION
  1

CHAPTER
 I:
 THE
 PRACTICE
 OF
 DIPLOMATIC
 ASSURANCES
  9

1.
  The
 context
 in
 which
 diplomatic
 assurances
 operate
  10

2.
  Defining
 diplomatic
 assurances
  11

3.
  The
 presence
 of
 diplomatic
 assurances
 in
 practice
  13

4.
  The
 challenges
 associated
 with
 diplomatic
 assurances
  16

Concluding
 remarks
  24

CHAPTER
 II:
 GLOBAL
 AND
 REGIONAL
 STANDARDS
 OF
 NON-­‐REFOULEMENT
  26

1.
  The
 1951
 Convention
 and
 1967
 Protocol
 relating
 to
 the
 Status
 of
 Refugees
  28

1.1.
  The
 scope
 of
 the
 rights
 contained
 in
 the
 Convention
 and
 Protocol
  29

1.2.
  The
 content
 of
 the
 principle
 of
 non-­‐refoulement
  30

1.3.
  Who
 is
 protected
 by
 the
 prohibition
 of
 refoulement?
  31

1.4.
  Limitations
 to
 the
 principle
 of
 non-­‐refoulement
  35

2.
  General
 human
 rights
 standards
 and
 their
 impact
 on
 the
 principle
 of
 non-­‐refoulement
  38

3.
  Non-­‐refoulement
 as
 a
 norm
 of
 customary
 international
 law?
  44

Concluding
 remarks
  48

CHAPTER
 III:
 THE
 LEGALITY
 OF
 DIPLOMATIC
 ASSURANCES
 AGAINST
 TORTURE
 BEFORE

INTERNATIONAL
 HUMAN
 RIGHTS
 BODIES
  50

1.
  The
 case-­‐law
 of
 the
 UN
 Committee
 against
 Torture
  51

2.
  The
 case-­‐law
 of
 the
 UN
 Human
 Rights
 Committee
  56

3.
  A
 consensus
 ‘against’
 the
 use
 of
 diplomatic
 assurances
 within
 the
 United
 Nations
 system?
  60

Concluding
 remarks
  64

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ecti CHAPTER
 IV:
 THE
 LEGALITY
 OF
 DIPLOMATIC
 ASSURANCES
 AGAINST
 TORTURE
 BEFORE
 THE

Coll EUROPEAN
 COURT
 OF
 HUMAN
 RIGHTS
  66

D 1.
  The
 ECtHR’s
 case
 law
 in
 the
 run-­‐up
 to
 Saadi
  67

T
e 2.
  The
 Saadi
 judgment
 and
 its
 aftermath
  71

U
E 3.
  The
 importance
 of
 the
 Othman
 (Abu
 Qatada)
 case
  77

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3.1.
  A
 new
 approach
 to
 diplomatic
 assurances?
  79

3.2.
  A
 violation
 of
 Article
 3
 or
 not?
  82

3.3.
  A
 violation
 of
 Article
 6
 or
 not?
  86

4.
  Developments
 since
 Othman
  89

Concluding
 remarks
  93

CHAPTER
 V:
 A
 COUNTRY
 EXAMPLE:
 THE
 ROLE
 OF
 THE
 UNITED
 KINGDOM
 AS
 ‘PROMOTER’

OF
 THE
 USE
 OF
 DIPLOMATIC
 ASSURANCES
  95

1.
  The
 origins
 of
 the
 British
 Policy
 of
 ‘Deportation
 With
 Assurances’
  96

ii
2.
  The
 UK’s
 Memoranda
 of
 Understanding
  100

2.1.
  The
 United
 Kingdom’s
 position
  100

2.2.
  The
 content
 of
 the
 MoU’s
  103

2.3.
  Criticisms
  107

3.
  SIAC’s
 case
 law
 on
 diplomatic
 assurances
  113

3.1.
  The
 approach
 taken
 by
 SIAC
  114

3.2.
  An
 analysis
 of
 SIAC’s
 jurisprudence
  116

3.3.
  Criticisms
  118

Concluding
 remarks
  120

CONCLUSION
  122

ANNEXES
  129

BIBLIOGRAPHY
  143

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Executive
 Summary

The present thesis analyses whether and how instances of state practice regarding
diplomatic assurances against torture have had an eroding effect on the principle of non-
refoulement, and this through a comparative analysis of three different jurisdictions, building
on primary and secondary sources. This detailed review and analysis of jurisprudence at
international level (the UN Human Rights Committee, the UN Committee Against Torture),
at regional level (the European Court of Human Rights) and at national level (the United
Kingdom) has allowed to draw certain conclusions with regard to such a potential clash of
diplomatic assurances with the principle of non-refoulement. While the present case-law of
relevant international human rights bodies did not really reveal such a trend, the impressive
jurisprudence at both the level of European Court of Human Rights and before the UK courts
points towards the fact that diplomatic assurances against torture have become a ‘hot issue’.
Crucially, none of the jurisdictions analysed have principally outlawed or labeled the use of
these assurances as illegal.

The widened use of diplomatic assurances against torture and ill-treatment, the implicit
tolerance of these assurances by the human rights bodies analysed, and their attempts to
‘regulate’ rather than outlaw these diplomatic undertakings, do appear to a certain extent to
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D refoulement. However, it remains to be seen whether this controversial issue will continue to
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affirmative stance of the obligation not to refoule will become visible in subsequent judicial
decisions of these mechanisms.

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List
 of
 Figures

FIGURE
 1:
 OVERVIEW
 OF
 MONITORING
 PROVISIONS
 IN
 SOME
 OF
 THE
 UK
 MOU'S
 ......................................................................
 106

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List
 of
 Abbreviations

• CAT Committee: UN Committee Against Torture
• CCTV: closed-circuit television
• CoE: Council of Europe
• DWA: Deportation With Assurances
• ECHR: European Convention on Human Rights
• ECtHR: European Court of Human Rights (Strasbourg Court)
• EU: European Union
• EWCA: England and Wales Court of Appeal
• EWHC: England and Wales High Court
• FCO: UK Foreign and Commonwealth Office
• GID: General Intelligence Directorate (here: Jordan)
• ICCPR: International Covenant on Civil and Political Rights
• ICESCR: International Covenant on Economic, Social and Cultural Rights
• ICJ: International Court of Justice
• JHA: Justice and Home Affairs (EU)
• MoU: Memorandum of Understanding
• NGO: non-governmental organization
• NCHR: National Commission of Human Rights (here: Jordan)
• NHRC: National Human Rights Commission (here: India)
• OAS: Organisation of American States
• OAU: Organisation of African Unity
• PKK: Kurdistan Workers’ Party (Partiya Karkerên Kurdistan)
• SIAC: Special Immigration Appeals Commission
• UK: United Kingdom
• UN: United Nations
• UN CAT: UN Convention Against Torture
• UNHCR: United Nations High Commissioner for Refugees
• UN HRC: UN Human Rights Committee
• US: United States of America

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Introduction

“I strongly share the view that diplomatic assurances do not work as
they do not provide adequate protection against torture and ill-
treatment.”1

“Let no one be in any doubt that the rules of the game are changing
[…] we believe we can get the necessary assurances from the
countries to which we will return the deportees against their being
subject to torture”2

The above statements clearly illustrate the polarized debate about the use of diplomatic
assurances. Condemned by some and championed/supported by others, diplomatic assurances
are clearly out there and are not likely to disappear. This begs the question: how did
diplomatic assurances line themselves up to become such a contested form of state practice?
A short reflection on the historical events that took place at the beginning of this century
might shed some more light on this.
It is difficult to underestimate the impact of the 9/11 events on our lives. The terrorist
attacks in New York and the subsequent bombings in Madrid and London shaped the
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national territory. Confronted with these challenges, the reactions of governments were
somewhat panicky. This resulted in important changes in an array of policies, including the

1 UN High Commissioner for Human Rights, Louise Arbour, “Statement to the Council of Europe’s Group of
2 Tony Blair, “Prime Minister’s Press Conference,” (5 August 2005), available at www.directgov.co.uk.
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field of security policy, immigration and asylum policy, human rights and various others,
while at the same time leading to the birth and/or reinforcement of new policy fields, such as
counter-terrorism and anti-terrorism policy. Numerous articles have been written about the
impact of this so-called ‘war on terror’ on human rights and human rights protection. 3 What
is essential is that countries increasingly started seeing a sharp trade-off between national
security and human rights, something they did not experience before the 9/11 era.
In order to resolve this conundrum, states became increasingly creative in trying to find
solutions, both by internal measures (such as the more frequent use of CCTV cameras, more
resources for police authorities and counter-terrorism units…) and external measures (such as
the use of concepts like safe countries of origin and safe third countries as well as tools like
diplomatic assurances and extraordinary extradition programs…). More specifically, the
focus seemed to be on stopping security threats at the border, and preventing them from
entering the country in the first place. The necessary corollary of this practice is the
extradition or surrendering of so-called ‘unwanted security threats’ to countries of origin or
states able to start a criminal case against them.
One of the solutions states came up with relates to the practice of diplomatic assurances.
Within the context of transferring people between states, the UN Refugee Agency (UNHCR)
defined diplomatic assurances as follows:
n “an undertaking by the receiving State to the effect that the person concerned will be
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3 René Bruin and Kees Wouters, “Terrorism and the Non-derogability of Non-Refoulement” in Counter-
terrorism and International Law, ed. K. L.H. Samuel and N. D. White (Farnham: Ashgate, 2012), 377 – 401;
Kent Roach, “Sources and Trends in Post-9/11 Anti-terrorism Laws” in Security and Human Rights, ed. B. J.
Goold and L. Lazarus (Oxford: Hart, 2007), 227 – 255; Andrew Ashworth, “Security, Terrorism and the Value
of Human Rights” in Security and Human Rights, ed. B. J. Goold and L. Lazarus (Oxford: Hart, 2007), 203 –
226.
4
 UN High Commissioner for Refugees, UNHCR Note on Diplomatic Assurances and International Refugee
Protection, August 2006, available at: http://www.unhcr.org/refworld/docid/44dc81164.html [accessed 9 March
2013], 2.
2
In other words, diplomatic assurances refer to a practice whereby a state who wants to send a
person back to his or her country of origin (for a variety of reasons, including being a
potential terrorist suspect or more generally forming a security threat) asks the government of
the receiving state for certain promises. These could include for example a prohibition to
apply the death penalty, promises that the person in question will not be tortured, assurances
of a fair trial in case the person is being charged with certain crimes, etc. While these
diplomatic assurances have been around for some time, they were originally mostly used by
(European) countries in the context of extradition for common (non-political) crimes,
especially against the death penalty.5 In the post-9/11 era, these diplomatic assurances have
gained new momentum, thereby also creating new challenges for the courts that have to
interpret their validity.

At a first glance, one would not condemn such practices but rather consider them as
praiseworthy efforts by the sending States. Then what exactly is problematic with regard to
diplomatic assurances? Well, first of all, it is crucial to point out that there is such a thing as
‘an obligation not to refoule’ or ‘a principle of non-refoulement’. This principle forms part of
refugee law and implies that it is forbidden for states to send refugees fleeing from
persecution back to countries where they might run the risk of ‘torture or cruel, inhuman or
n degrading treatment or punishment’ and where their rights ‘to liberty and security of person’
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it leaves the door open “if there are reasonable grounds for a refugee to be considered as a

5
 Alice Izumo, “Diplomatic Assurances against Torture and Ill-treatment: European Court of Human Rights
Jurisprudence,” Columbia Human Rights Law Review 42 (2010): 235.
6
 UN High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement, November 1997,
available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=438c6d972 [accessed 5 September
2013].

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