ECHR on Diplomatic Assurance, pt. 2

I would like to thank Sarah Waldeck and the rest of the Concurring Opinions authors for allowing me to stay on until February 15th.  A lot happened has happened in the past few days with significant implications for international human rights law, but before I turn to these events I want to finish up my thoughts on the recent decision by the European Court of Human Rights in Othman v. United Kingdom.

To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan would expose Othman to an unfair trial, in that it was likely that evidence derived from torture would be used against him.  The second holding effectively bars the United Kingdom from transferring Othman to Jordan. The United Kingdom has 3 months days to appeal the decision to the Grand Chamber.

As promised in my previous post, I want to offer some thoughts here on whether the ECHR persuasively addressed criticism of the post-transfer monitoring arrangement created by MOU and exchange of letters between Jordan and the United Kingdom. The judgment contains some significant weaknesses in this regard, as I detail here:

 

Human rights NGO’s have generally opposed the use of diplomatic assurances categorically, as a practice that undermines international law. If a state has a binding obligation not to torture, use of nonbinding, bilateral diplomatic assurances merely weakens the strength of that legal obligation. See the Human Rights Watch report, Mind the Gap: Diplomatic Assurances and the Erosion of the Global Ban on Torture. http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.

In somewhat modifying the categorical argument in light of previous ECHR case law, Othman argued to the ECHR that diplomatic assurances should never be relied on when the receiving country has a record of torture that is “widespread and systematic.” If used at all, they are only appropriate in situations where acts of torture are isolated and the receiving country has established an independent monitoring body. Para. 168.

The categorical argument against diplomatic assurances appears, at least at the ECHR, to have been lost, as the Court stated that it will only be in “rare cases,” par. 188, that no weight that all can be given to diplomatic assurances. The legal focus now shifts to the quality of the post-transfer monitoring arrangements. The objections raised by Othman (and by third-party human rights NGO intervener) to the body tasked with post-transfer monitoring – a small, new NGO in Jordan called the Adaleh Centre — are numerous and highly fact-specific. I’m going to by-pass most of the weeds here to concentrate on two particular weaknesses in the Court’s reasoning.

First, the monitoring body is not required to have complete political and financial independence from both the sending and receiving state.  In Gasayev v. Spain, the judgment that involves facts most similar to those in Othman, the ECHR approved a transfer from Spain to Russia only when Spanish diplomats ultimately agreed to undertake the post-transfer monitoring. Though United Kingdom diplomats will not directly be doing the monitoring in the case of Othman, the U.K. government is openly funding the Adaleh Centre.  Not only was the ECHR not untroubled by this fact – concluding that this funding “in itself provides a measure of independence for the Centre, at least from the Jordanian government,” para. 203 — it found the likelihood that the funding would continue into the future to be a factor lending weight to Jordan’s diplomatic assurances. The impact of the U.K.’s funding of the Adaleh center was not searchingly probed and the potential conflict of interest problem not examined head-on.

Second, the ECHR conceded that the Adaleh Centre did not have the “expertise or resources” of leading international NGOs, nor the “reputation or status” of leading Jordanian NGOs, para. 203, but nonetheless agreed with the conclusions in lower proceedings in Britain that “it was the very fact of monitoring visits which was important,” para. 188. If the fact of the visits is the most important feature of the post-transfer monitoring arrangement, the capacity of the monitoring body becomes almost irrelevant.  The fact that the Court went on to address concrete issues related to the Adaleh Centre’s actual capacity to undertake the monitoring suggests that this logic should not be taken too far, but it is part of its reasoning nonetheless.

Though the principle of judicial review of diplomatic is now firmly established in the ECHR’s case law, these weaknesses in the evolving jurisprudence need to be addressed.

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