{"id":54227,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/trusting-the-torturers.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"trusting-the-torturers","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/trusting-the-torturers.html","title":{"rendered":"Trusting the Torturers"},"content":{"rendered":"\n
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Trusting the Torturers<\/h1><\/td>\n <\/tr>\n

By JOANNE MARINER<\/h2><\/a><\/td>\n <\/tr>\n

Wednesday, Aug. 17, 2005<\/td>\n\n <\/tr>\n <\/table>\n

“Trust but verify,” Ronald Reagan once said, describing his approach to Soviet arms\n\nreduction efforts. The unspoken corollary to his admonition was that promises\n\nalone are worthless.<\/p>

But even empty promises are tempting when the recipient wants to believe them. And so it is with the U.K. government, which has been making arrangements for the return of security suspects to countries that practice torture. Last week, the British signed an agreement with Jordan that affirmed that deportees to the latter\n\ncountry would not be mistreated. It is believed to be negotiating with nine other countries, including Egypt and Algeria, to obtain similar pledges.\n\n<\/p>\n\n\n

Still reeling from recent terrorist attacks, the U.K. is seeking easy ways to deport\n\nforeigners perceived as security threats. But its zeal to be rid of unwanted\n\nguests should not blind it to the dangers of its current approach.<\/p>\n\n\n\n

Jordan, like Egypt and Algeria, is a country in which prisoner abuse is a serious risk. The\n\n“Memorandum of Understanding” that the U.K. and Jordan signed last week will\n\nnot fix this problem. Nor should such paper assurances convince the British\n\ngovernment that any deportees it sends to Jordan will be safe.<\/p>\n\n\n\n

“Diplomatic Assurances”<\/b><\/p>\n\n\n\n

International law establishes an absolute prohibition against torture. The prohibition includes,\n\nspecifically, an obligation not to send a person to a country where he or she\n\nis at risk of ill-treatment. <\/p>\n\n\n\n

At present, despite some recent improvements, the risk of torture in Jordan remains real.\n\nIn its 2004 report, the National Center for Human Rights, an official body,\n\nstated that it had logged more than 250 prisoner complaints alleging torture or\n\nill-treatment. Last September the Center announced that a detainee had died in\n\nJuwaida Prison as a result of torture.<\/p>\n\n\n\n

The “diplomatic assurances” that the U.K. just obtained – Jordan’s formal guarantees that it\n\nwill treat returned persons in accordance with its human rights obligations —\n\ndo not obviate this risk. Diplomatic assurances have already been tried by\n\nseveral other European countries. The record so far gives few reasons to\n\nbelieve that they work.<\/p>\n\n\n\namong others, Human Rights Watch found them to be ineffective in preventing\n\ntorture. In an April 2004 report, the organization detailed cases where persons\n\nreturned based on diplomatic assurances were in fact tortured or ill-treated.\n\n\n\n

As Human Rights Watch has explained, diplomatic assurances are based on trust, and on trust\n\nthat itself lacks a firm basis. Governments in states where torture is\n\npracticed almost always hide the problem, denying its existence. Where such\n\nofficial assurances are unreliable as a general matter, they will probably also\n\nbe unreliable in any given case. And it defies common sense to presume that a\n\ngovernment that routinely flouts its binding obligations under international\n\nlaw can be trusted to respect those obligations for reasons of diplomatic\n\ncourtesy.<\/p>\n\n\n\n

\n\nThe Agiza Case<\/b><\/p>\n\n\n\n

The case of Ahmed Agiza and Mohammad al-Zari is instructive. In\n\nDecember 2001, the two men were expelled from Stockholm to Cairo even though\n\nthe Swedish authorities had previously determined that the men had a\n\nwell-founded fear of persecution if returned to Egypt. The government ordered\n\ntheir expulsions based on assurances from the Egyptian authorities that the men\n\nwould not be subject to the death penalty, torture or ill-treatment, and that\n\nthey would receive fair trials. <\/p>\n\n\n\n

It was subsequently revealed that the men were handed over to U.S.\n\noperatives at Bromma Airport in Stockholm; hooded, shackled, and drugged;\n\nplaced aboard a U.S. government-leased plane; and transported to Cairo. They\n\nwere held in incommunicado detention for a full five weeks before the Swedish\n\nambassador to Egypt visited them. <\/p>\n\n\n\n

The men have credibly alleged that they were tortured and ill-treated in those five weeks\n\nand that the abusive treatment continued even after Swedish diplomats began\n\nmonitoring them. A classified Swedish government report from January 2002\n\nindicated that the men told the Swedish authorities about this abuse, but the\n\nSwedish government took no action and in fact omitted these allegations from\n\nits public reporting on the cases. \n\n<\/p>\n\n\n\n

While al-Zari was finally released from prison without charge, Agiza was put on trial in April\n\n2004. (He had been tried in absentia in Egypt in 1999 and sentenced to 25\n\nyears of hard labor.) The trial was conducted in a special military court, and\n\nthe proceedings were flawed by serious violations of the right to a fair trial.\n\nIn the course of the proceedings, Agiza told the court that he had been\n\ntortured in prison and requested an independent medical examination, which the\n\ncourt denied. <\/p>\n\n\n\n

The Swedish authorities were denied access to the first two of the four trial hearings, and\n\ndid not take action on Agiza’s claims that he was tortured. But they did\n\nfinally acknowledge that Agiza’s trial was unfair.<\/p>\n\n\n\n

In May, the U.N. Committee Against Torture ruled that Sweden had violated the ban on torture by\n\nexpelling Agiza to Egypt. The committee concluded that the procurement of\n\ndiplomatic assurances from Egypt, which included no mechanism for enforcement,\n\nwere insufficient to protect against the manifest risk of torture.<\/p>\n\n\n\n

“Prompt and Regular Visits”<\/b><\/p>\n\n\n\npost-return monitoring of detainees. It includes a provision for detainees to\n\nhave “prompt and regular visits” from a representative of an independent body\n\nnominated by the two countries. And it stipulates that such visits “will\n\ninclude the opportunity for private interviews with the returned person.” \n\n\n\n\n\n\n\n

But this monitoring mechanism provides little additional safeguard against abuse. First, it should\n\nbe noted, neither Jordan nor the U.K. has any incentive to expose violations.\n\nJordan, of course, could be implicated in torture or ill-treatment, and the\n\nU.K. could be implicated in violating the prohibition against returning people\n\nto a country in which they face torture. <\/p>\n\n\n\n\n\n\n\n

Second, it is difficult to ensure that detainees will feel confident enough to report any\n\nabuse. Terrified prisoners often do not report mistreatment because they may\n\nhave to face their torturer as soon as the prison visitor leaves.<\/p>\n\n\n\n\n\n\n\n

And perhaps most importantly, the agreement lacks an effective mechanism to secure compliance.\n\nIt does not establish a penalty for failure to abide by its terms, nor does it\n\neven provide that the abused prisoner would be returned to the U.K.<\/p>\n\n\n\n\n\n\n\n

As an agreement based on trust, it reflects wishful thinking where, instead, a healthy\n\nskepticism is appropriate.<\/p>\n\n\n\n\n\n<\/span>\n\n\n\n\n\n

\n\n

\n\n\n\n\n\n<\/a>\n\nJoanne Mariner is a human rights attorney based in New York. Her previous columns about terrorism,\n\ncounter-terrorism and human rights are available in FindLaw’s archive. The\n\npresent piece is based on Human Rights Watch’s research on diplomatic\n\nassurances. She directs readers seeking more information on the topic to Human\n\nRights Watch’s 2004 report, “\u2018Empty Promises’: Diplomatic Assurances No\n\nSafeguard Against Torture,” as well as to its 2005 report, “Still at Risk:\n\nDiplomatic Assurances No Safeguard Against Torture.”\n\n

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