OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
45
VI. RELEVANT NATIONAL AND INTERNATIONAL CASE-LAW
AND COMMENTARY ON ASSURANCES
141. In addition to the commentary on assurances which was
summarised in Ismoilov and Others v. Russia, no. 2947/06, §§ 96-100,
24 April 2008, the parties have provided the following materials.
A. Reports and other international commentary
142. In its 2006 concluding observations on the United States of
America, the UN Committee against Torture recommended that diplomatic
assurances should only be relied upon in regard to States which do not
systematically violate UNCAT’s provisions, and after a thorough
examination of the merits of each individual case. It recommended clear
procedures for obtaining assurances, with adequate judicial mechanisms for
review, and effective post-return monitoring arrangements.
143. In a February 2006 address to the Council of Europe Group of
Specialists on Human Rights and the Fight against Terrorism (DH-S-TER),
Louise Arbour, then United Nations Commissioner for Human Rights
stated:
“Based on the long experience of international monitoring bodies and experts, it is
unlikely that a post-return monitoring mechanism set up explicitly to prevent torture
and ill-treatment in a specific case would have the desired effect. These practices
often occur in secret, with the perpetrators skilled at keeping such abuses from
detection. The victims, fearing reprisal, often are reluctant to speak about their
suffering, or are not believed if they do.”
144. In his “viewpoint” of 27 June 2006, the Council of Europe
Commissioner for Human Rights, Thomas Hammarberg, stated that
diplomatic assurances were pledges which were not credible and had turned
out to be ineffective in well-documented cases. His view was that the
principle of non-refoulement should not be undermined by convenient,
non-binding promises.
145. Concerns as to the United Kingdom’s Government’s policy of
seeking assurances have also been expressed by the United Kingdom
Parliament’s Joint Committee on Human Rights (in its report of 18 May
2006) and the House of Commons Select Committee on Foreign Affairs (in
its report of 20 July 2008).
146. Human Rights Watch has strongly criticised the use of assurances.
In an essay in its 2008 World Report entitled “Mind the Gap Diplomatic
Assurances and the Erosion of the Global Ban on Torture”, it argued that the
problem with assurances lay in the nature of torture itself, which was
practised in secret using techniques that often defied detection. The essay
also considered the arrangements between in the United Kingdom and
Jordan. It characterised Adaleh as a small NGO and questioned whether,
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