ECHR on Diplomatic Assurances

Belated greetings to the CoOp community and thanks to Sarah Waldeck for enabling this opportunity to blog for what is left of January. I had hoped to post initially from Jordan, where I was visiting in January as a consultant for the American Bar Association’s Rule of Law Initiative (ABA ROLI), but the ABA’s regulations do not permit me to blog about the specific people or organizations that I met with during my visit.  I am still seeking clarification on the boundaries between specific information and general impressions, so for the moment I will keep my comments to the public record.  The following reflects my personal judgment only and is not based in any way on information disclosed in meetings held in my recent trip.

For my initial post, I want to set down some thoughts about the decision last week by the European Court of Human Rights in the case of Othman (Abu Qatada) v. United Kingdom, a decision effectively prohibiting the U.K. from deporting to Jordan a Islamist cleric who is currently being held in England without charge (and at least in part on the basis of secret evidence) and who has previously been convicted in absentia on terrorism charges in Jordan.

Though Jordan originally requested Othman’s extradition, it appears that the current litigation arises from the U. K.’s desire to deport him from England on national security grounds, rather than try him on terrorism charges.

The ECHR’s decision involved two main holdings:  first, that diplomatic assurances transmitted via a memorandum of understanding (MOU) between the United Kingdom and Jordan are sufficient to overcome the likelihood (based on Jordan’s human rights record) that Othman would be tortured if he were returned to Jordan to face trial on terrorism charges; second, that the U.K. would be violate Othman’s human rights nonetheless if it deported him to Jordan because evidence derived from torture would likely be used against in any trial.  My comments here focus mainly on the assurances part of the holding.

It should first be noted that the ECHR has firmly established the principle of judicial review of diplomatic assurances.   This in itself puts the European system far ahead of the United States, in which diplomatic assurances are regarded as the province solely of the executive.   See Report by Columbia Law School Human Rights Institute, Promises to Keep:  Diplomatic Assurances in U.S. Terrorism Transfers (Dec. 2010).  The ECHR initially began reviewing diplomatic assurances in cases involving the death penalty.  Its review of diplomatic assurances in terrorism cases began in the wake of revelations in 2004-2005 that, despite assurances to the contrary, Egypt had tortured two terrorism suspects transferred by Sweden, with assistance from the U.S., after rejecting their requests for asylum.  Human rights NGO’s and UN bodies have generally opposed the use of diplomatic assurances, but political consensus within Europe has split over the question whether assurances can be meaningfully regulated, or whether their use should be rejected outright.

Human rights’ NGO’s Amnesty International’s counterterrorism expert Julia Hall called the diplomatic assurances part of the Othman holding “an alarming setback for human rights” and said the decision as a whole was “a case of one step forward, two steps back.”

This I think overstates the extent to which the decision represents something qualitatively new in terms of the Court’s jurisprudence.  As a general matter, the standard used in Othman was set out in an earlier case, Saadi v. Italy (2008), in which the Court rejected assurances from Tunisia that terrorism suspects convicted in abstensia would not be tortured if returned to Tunisia, on the grounds that the assurances given by Tunisia were brief and formulaic and lacked any post-return monitoring system. The Court found that it had the obligation to review the “practical application” of the assurances and outlined a case-by-case approach in which the weight given to the diplomatic assurances depends “on the circumstances obtaining at the material time.” Saadi, para. 148. Subsequent decisions by the ECHR (more than a dozen) have identified particular factors to be considered, such as the national security profile of the individual involved, the availability of post-transfer monitoring, the specificity of the assurances in prohibiting torture, and the receiving country’s general human rights record with respect to torture.  The Court sets out these factors in Othman (para. 189), without indicating any relative weighting among them.  (For an overview of the case law, see Note (Alice Izumo), Diplomatic Assurances Against Torture and Ill-Treatment: European Court of Human Rights Jurisprudence, 42 Colum. Hum. Rgts. L. Rev. 233, 256-273 (2010)).  In at least one earlier case – Gasayev v. Spain (2009)– the court appears to have  found that diplomatic assurances from a country with a poor human rights record on torture (Russia) mitigated the risk involved in transfer, when the assurances specifically stated that international standards would be met and that diplomats from the transferring state would be able to monitor the post-transfer treatment of the detainee. (For some reason, I cannot pull up this case in the ECHR database of cases, but the Court cites it several times in setting out the factors to be considered in evaluating assurances.  Othman, para. 189 (vi), (viii), (xi)). Significantly, Othman, represented by Gareth Peirce, did not stake out a position that diplomatic assurances could in no case be adequate to mitigate the risk of torture, but he did argue that satisfactory standards would be met only in cases where 1) systemic torture had been brought under control and 2) if isolated acts of torture continue, there is an independent monitoring body with proven effectiveness and criminal sanctions against torture.  Othman, para. 168.

What seems to be emerging in the ECHR’s jurisprudence on diplomatic assurances is the requirement that, where a receiving state has a record of systematic torture, assurances must include a monitoring system. Jordan’s dismal record on torture has been the subject of numerous NGO and UN body reports, and the Court agreed with the parties that, “without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan.”  Othman, para. 192. Several factors convinced the Court that the MOU would, in effect, rebut the presumption that Othman would be tortured if returned to Jordan.  The Court found the MOU in the Othman case to be particularly strong.  Indeed, the Court stated that the Jordan-U.K. MOU is “superior in both its detail and its formality to any assurances which the Court has previously examined.”  Othman, para. 194.  More importantly, the MOU provided for a monitoring system, and the Court also examined its terms of reference.  The Othman decision also makes much of the strength of the diplomatic ties between Jordan and the U.K. and the apparent political will in Jordan to fulfill the conditions in the MOU.

In my next post, I will look at the details of the monitoring agreement in more detail and evaluate whether the general and specific objections of human rights NGO’s have been persuasively addressed by the Court.

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