JURIST Special Guest Columnist Andrea Prasow of Human Rights Watch says that Obama has corrected course from the worst of the Bush-era detainee abuses but the US should implement public procedural safeguards to ensure detainees are not transferred to countries where they face a risk of torture…

A cache of documents recently uncovered by Human Rights Watch in Tripoli brought into public view a convenient tool of international relations — so-called “diplomatic assurances.” Such assurances, promises requested of governments to treat detainees humanely, have a dark side. Although seemingly intended to ensure the safety and well-being of detainees, they in fact have been used in the rendition of individuals to the custody of governments with known records of torture. This was especially true during the Bush administration when the US government transferred people to countries notorious for torturing prisoners, such as Egypt, Jordan and Libya.

Although the Obama administration must be commended for reforming many Bush-era practices such as use of CIA “black sites” and many abusive interrogation techniques, it has failed to renounce reliance on diplomatic assurances when transferring detainees to other countries. Any policy changes it may have made to minimize the risk that transferred detainees will not face torture have not been made public.

Ratified by the US in 1994, the Convention Against Torture absolutely prohibits returning a person to a country where he or she is in danger of being tortured or, as is widely accepted, ill-treated. The European Court of Human Rights (ECHR) and courts in the UK have found diplomatic assurances to be unreliable and insufficient to satisfy a state’s obligation under the treaty.

As the cases highlighted in the documents discovered by Human Rights Watch show, relying on these assurances is useless. In Libya, and likely scores of other places, a promise of humane treatment in no way meant a detainee would not face the risk of torture upon transfer. The apparent transfer of Abdul Hakim Belhaj by the US to Libya is one stark example of the hollowness of diplomatic assurances. Belhaj, now the rebel military commander in Tripoli, was a member of the Libyan Islamic Fighting Group (LIFG), which had sought to overthrow the Gaddafi regime. When transferring Belhaj to Libya in 2004, the US blithely sought assurances that Belhaj would be treated humanely and that his human rights would be respected, presumably in an attempt to satisfy obligations under the Convention Against Torture.

Belhaj has subsequently alleged he was tortured by the CIA, transferred to Libyan custody and then tortured by Libyan officials. He claims that both British and American officials knew he was tortured while in Libyan custody but did nothing to stop the abuse. The US Department of State’s own 2004 Human Rights Country Report on Libya stated that Libyan security personnel routinely tortured prisoners by, among other things, applying electric shock, breaking fingers and allowing the joints to heal without medical care, suffocating with plastic bags, and depriving detainees of food and water. Given Libya’s record, Belhaj’s experience surely came as no surprise.

After taking office, President Barack Obama corrected course from the worst of the Bush-era detainee abuses and ordered the creation of a task force that reviewed, among other things, the practice of transferring detainees to other counties, including the use of diplomatic assurances.

While reiterating the fact that the US may continue to rely on these assurances, the task force suggested a number of things “aimed at clarifying and strengthening US procedures for obtaining and evaluating those assurances.” These included having the State Department involved in evaluating the assurances as well as having it prepare an annual coordinated report with the Departments of Defense and Homeland Security on transfers conducted by each agency. The task force also suggested establishing better mechanisms for monitoring once a detainee is transferred but failed to enumerate how those mechanisms might actually work. The task force made recommendations specific to immigration and military transfers but failed to state what those recommendations were. Finally, while it made recommendations regarding how to ensure safe treatment of a detainee when the intelligence community is involved in a transfer, it did not make those recommendations public.

Not only are these recommendations insufficient, but the administration has not even made clear if they have been adopted. There should be a process in place to ensure that those who fear torture can raise their concerns before an impartial adjudicator. Where transfers are permissible, the administration should also detail how it will improve monitoring of transferred detainees and what steps it will take if it discovers mistreatment of one of its transferees. Unless and until these policies are made public, it is impossible to assess whether current policy satisfies US obligations under the Convention Against Torture.

While no new cases of rendition of the type conducted by the CIA under the Bush administration have been reported, the absence of a clear public policy makes the administration vulnerable to critics. In the past, secret policies led to secret torture. So when allegations surface, as they did this summer, of CIA involvement in transfers to and interrogation in places like Somalia, the administration’s refusal to provide details about its policies raises serious concerns.

It is high time for the Obama administration to renounce the practice of relying on diplomatic assurances when transferring detainees to governments with known records of detainee abuse. If procedural safeguards are in place to ensure detainees are not transferred to countries where they face a risk of torture, the administration should be proud of such policies. There is no need to keep them secret.

Andrea Prasow is senior counterterrorism counsel in Human Rights Watch’s US Program. She investigates and analyzes US counterterrorism policies and practices. She also leads advocacy efforts urging executive and legislative branch officials in Washington to implement counterterrorism policies that respect internationally recognized rights. Prior to joining Human Rights Watch, Andrea was a defense attorney with the Office of Military Commissions.

Suggested citation: Andrea Prasow, Diplomatic Assurances: Empty Promises Enabling Torture, JURIST – Forum, Oct. 6, 2011, http://jurist.org/forum/2011/10/andrea-prasow-diplomatic-assurances.php.