OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
57
international standards, such as those set out in the Optional Protocol to
UNCAT. Moreover, even assuming that Adaleh was able to seek entry to
the applicant’s place of detention, in order to escape monitoring, the
authorities would simply have to tell them that the applicant did not wish to
see them.
3. Third party interveners
175. The third party interveners (see paragraph 5 above) submitted that
the use of diplomatic assurances was a cause for grave concern. Such
bilateral, legally unenforceable diplomatic agreements undermined the ius
cogens nature of the absolute prohibition on torture and the non-refoulement
obligation. They also undermined the binding, multilateral, international
legal system which held states to these obligations. Assurances had been
widely condemned as wrong in principle and ineffective in practice by
international experts such as the UN High Commissioner for Human Rights,
the Council of Europe Committee for the Prevention of Torture, as well as
the United Kingdom Joint Committee on Human Rights (see paragraphs
141- 145 above).
176. More practically, there were four significant weaknesses in
assurances. First, they were unable to detect abuse. Torture was practised in
secret and sophisticated torture techniques were difficult to detect,
particularly given the reluctance of victims to speak frankly to monitors for
fear of reprisals.
177. Second, the monitoring regimes provided for by assurances were
unsatisfactory. For example, they contrasted unfavourably with the
International Committee of the Red Cross’ practice of never visiting single
detainees so as to avoid involuntary identification of those who complain of
abuse. The third parties also noted that the UN Special Rapporteur had also
rejected the proposition that visits to a single detainee could be an effective
safeguard. It was also noteworthy that the Committee for the Prevention of
Torture had declined to monitor compliance with assurances.
178. Third, frequently, local monitors lacked the necessary
independence. They did not possess the authority to gain access to places of
detention, to lodge complaints or to exert pressure on the authorities to halt
any abuses. They were themselves subject to harassment and intimidation.
179. Fourth, assurances also suffered from a lack of incentives to reveal
breaches as neither Government concerned would wish to admit to
breaching its international obligations and, in the case of the sending
Government, to jeopardise future deportations on grounds of national
security. As unenforceable promises from one State to another, assurances
could be breached without serious consequences.
180. The third parties also submitted that their own reports (summarised
at paragraphs 112–118 above) had documented Jordan’s longstanding
record of torture and ill-treatment of terrorist and national security suspects.
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