The Department of Homeland Security has appealed the al-Jailani ruling. At the time of
writing, it remained unclear if the U.S. government will seek assurances from the Yemeni
authorities or if it will simply argue that al-Jailani would not be at risk of torture upon
return, even in the absence of assurances.
Canada
The Canadian government seeks and secures diplomatic assurances for returns in some
cases where there is an acknowledged risk of torture, including for persons subject to
“security certificates.” Such certification by the executive authorizes the government to
detain a person—suspected of being a threat to the security of Canada—for an
unspecified period without charge or trial; present secret evidence, not available to
anyone except the government and a judge, in closed hearings to which detainees and
their lawyers do not have access; and to deport him or her.137 At the time of writing,
there were several hearings and judicial reviews scheduled, and decisions pending, to
determine the validity of some security certificate cases. Some of these procedures
address the issue of whether security certificates in individual cases are “reasonable” and
others review prior assessments of the risk of torture that detainees subject to security
certificates might face if deported. Canadian courts have not yet been willing to permit
the government to breach the absolute ban on refoulement in these particular cases.
Human rights groups and various segments of civil society have severely criticized the
continuing use of security certificates, correctly pointing out that the process violates the
prohibition against indefinite detention, internationally recognized procedural
guarantees, and the absolute obligation not to send a person to a country where he or
she would be at risk of torture.138
Prior to deportation, Canadian immigration authorities normally conduct a protection
assessment to determine whether an individual would be at risk of torture upon return.
However, if a security certificate is deemed “reasonable” by a judge, the ability to
137
Immigration and Refugee Protection Act 2001 (IRPA), Division 9 (sections 76-87) [online]
http://laws.justice.gc.ca/en/I-2.5/text.html (retrieved March 2, 2005). The law does not expressly provide for the
indefinite detention of foreign nationals suspected of posing a national security threat to Canada. The law
permits the government to detain with the intention of deporting a suspect. A judge can release a suspect if a
deportation cannot be effected within a reasonable time if the person does not pose a danger to national
security. If a judge determines that a person would pose a threat to national security and deportation cannot be
effected, then indefinite detention is a possibility given the loopholes in the law.
138
See, Amnesty International Canada, “Take Action: Security Certificates, Time for Reform,” March 2005
[online] http://www.amnesty.ca/take_action/actCertificates_300305.php (retrieved March 31, 2005). See also
Letter from Amnesty International Canada to Minister of Public Safety Anne McLellan, March 31, 2004, in which
Amnesty criticized the use of security certificates and “urges Canada to adopt a response to security concerns
that does not result in violations of such fundamental human rights as the protections against arbitrary detention
and torture.” Copy on file with Human Rights Watch.
47
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
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