E/CN.4/2006/6
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(c)
It is often the case that the requesting and the requested States are parties to CAT,
ICCPR and other treaties absolutely prohibiting torture. Rather than using all their diplomatic
and legal powers as States parties to hold other States parties accountable for their violations,
requesting States, by means of diplomatic assurances, seek only an exception from the practice
of torture for a few individuals, which leads to double standards vis-à-vis other detainees in those
countries;
(d)
Diplomatic assurances are not legally binding. It is therefore unclear why States
that violate binding obligations under treaty and customary international law should comply with
non-binding assurances. Another important question in this regard is whether the authority
providing such diplomatic assurances has the power to enforce them vis-à-vis its own security
forces;
(e)
Post-return monitoring mechanisms are no guarantee against torture - even the
best monitoring mechanisms (e.g. ICRC and CPT) are not “watertight” safeguards against
torture;
(f)
The individual concerned has no recourse if assurances are violated;
(g)
In most cases, diplomatic assurances do not contain any sanctions in case they are
violated, i.e. there is no accountability of the requested or requesting State, and therefore the
perpetrators of torture are not brought to justice;
(h)
Both States have a common interest in denying that returned persons were
subjected to torture. Therefore, where States have identified independent organizations to
undertake monitoring functions under the agreement, these interests may translate into undue
political pressure upon these monitoring bodies, particularly where one is funded by the sending
and/or receiving State.
32.
In conclusion, the Special Rapporteur stated that diplomatic assurances with regard to
torture are nothing but attempts to circumvent the absolute prohibition of torture and
refoulement, and that rather than elaborating a legal instrument on minimum standards for the
use of diplomatic assurances, the Council of Europe should call on its member States to refrain
from seeking and adopting such assurances with States with a proven record of torture.
33.
On the occasion of Human Rights Day, 10 December 2005, the Special Rapporteur
expressed his appreciation to the High Commissioner for Human Rights for designating as this
year’s theme “On terrorists and torturers”, and for her efforts on drawing international attention
to the absolute prohibition of torture. He fully supports the statement of the High Commissioner,
in which she expressed her concerns about the erosion of the prohibition of torture in the context
of counter-terrorism, particularly the trend of seeking diplomatic assurances and the use of secret
places of detention. The Special Rapporteur also expresses his appreciation for the statement of
the Secretary-General on the occasion of Human Rights Day, in which he called upon the
international community to speak out forcefully against torture in all its forms and stated,
“torture can never be an instrument to fight terror, for torture is an instrument of terror”.
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