In seeking assurances against abusive conduct, governments acknowledge that a risk of
torture and ill-treatment exists in the country of return. The risk derives from the fact
that many receiving states have failed to implement effective measures to halt and
prevent the torture of their own citizens and others within their jurisdiction, and to hold
accountable those responsible for such abuses. It may also arise from the particular
characteristics and circumstances of the person vulnerable to transfer.
Once a sending government acknowledges that a risk of torture exists in a specific
country, it is incumbent upon its authorities to refuse to transfer a person to that
country. If sending governments want to ensure that they are able to transfer suspects to
any jurisdiction while respecting their nonrefoulement obligation, they should focus their
energy on assisting receiving governments in reform efforts to eradicate torture and illtreatment, rather than trying to bypass the rules by relying on assurances. Receiving
governments can facilitate such transfers only by complying with their obligations under
the Convention against Torture, the International Covenant on Civil and Political Rights,
and customary law to prevent and halt acts of torture, and by implementing
accountability mechanisms to address torture abuses. A verifiable record of compliance
with international norms against torture by the receiving state is the most effective way
to reduce the risk of torture and ill-treatment upon return, not an offering of unreliable
and vague assurances.
Developments Regarding Diplomatic Assurances Since April 2004
North America
United States
Reliance on diplomatic assurances when transferring persons at risk of torture is an
increasingly common practice by the United States. United States law permits the use of
assurances in immigration cases, and authorities have disclosed that it is U.S. policy to
seek them as well in so-called “extraordinary rendition” cases and to effect transfers of
detainees from custody at Guantánamo Bay.
Since “Empty Promises” was finalized in April 2004, further evidence has come to light
that the U.S. government is transferring persons suspected of terrorist activities to
countries where torture is a serious human rights problem. Many such transfers take
place without any procedural safeguards—that is, completely outside the law. These
transfers, so-called “extraordinary renditions,” have occurred both from U.S. territory
and from other countries, either by the direct seizure of foreign nationals on foreign
territory by U.S. agents, or the transfer of foreign nationals to third countries by the host
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
28
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