A/HRC/13/39/Add.5
not legally binding and thus unlikely to be complied with by States who otherwise violate
their binding violations under international law. In addition, the authority providing the
assurance might not have the power to enforce their compliance vis-à-vis its own security
forces. Diplomatic assurances cannot be and are often not securely monitored; even the best
monitoring mechanisms (e.g. ICRC, CPT) are no guarantee against torture. They neither
provide for sanctions nor for recourses for the victims in case of a violation.204 The practice
of diplomatic assurances leads to an erosion of the principle of non-refoulement. It
encourages States to seek an exception to their obligation instead of using all their
diplomatic and legal powers as States parties to hold other States parties accountable for
their violations. In cases of violations of the principle upon return, despite of given
assurances, both the sending and receiving States have a common interest in denying it and
exert pressure to blur accountability.
244. A particular serious problem in the context of counterterrorism and obligatory
departure of individuals is the use of extraordinary renditions of suspected terrorists.205
Extraordinary renditions were practised by the United States for the purpose of transferring
terrorist suspects to countries with ‘harsher interrogation methods’ than those applied in the
US detention facilities at Guantanamo Bay (Cuba), Abu Ghraib (Iraq), Bagram Air Base
(Afghanistan) and similar detention centres abroad. Additionally, terrorist suspects were
kidnapped in third States and brought to countries were they were exposed to interrogations
involving torture and ill-treatment. European States have been complicit in rendition, e.g.
by providing airspace and airports to rendition flights as investigations of the European
Union and Council of Europe have revealed.206 The way Western States have dealt with
extraordinary renditions is ambiguous. The case of Binyam Mohamed, where investigations
into the alleged complicity of British MI5 agents have been initiated, as well as the recent
judgment of an Italian court sentencing United States and Italian officials for their
involvement in rendition practices go in the right direction. However, no official from the
United States has so far been punished for complicity in torture. In the case of Maher Arar,
a Canadian-Syrian citizen, who claims to have been sent to Syria by American officials to
be tortured, the Canadian Government inquired and confirmed the torture allegations,
cleared him of any links to terrorism and settled his case with a 10.5 million Canadian
Dollars compensation and an official apology for any contribution by Canadian officials
leading to his rendition.207 In contrast, he has received no apology from US authorities and
204
205
206
207
UN Special Rapporteur on Torture, Report to the Commission on Human Rights, E/CN.4/2006/6, 23
December 2005, para 31.
Marty, Dick, “Secret detentions and illegal transfers of detainees involving Council of Europe
member states: second report”, Doc. 11302 rev., Committee on Legal Affairs and Human
Rights/Council of Europe Parliamentary Assembly, 11 June 2007; Fava, Giovanni Claudio,
“Extraordinary rendition in US counterterrorism policy: the impact on transatlantic relations”,
Briefing before the House Committee on Foreign Affairs, P6-TA-PROV (2007)0032, 17 April 2007;
Amnesty International (AI), “Below the Radar: Secret Flights to Torture and ‘Disappearance’”, AI
Index AMR 51/051/2006, 05 April 2006. See also the Joint Study on Secret Detention in the Fight
against Terrorism, A/HRC/13/42.
Council of Europe, “Secretary General’s supplementary report under article 52 ECHR on the question
of secret detention and transport of detainees suspected of terrorist acts, notably by or at the
instigation of foreign agencies”, SG/Inf(2006)13, 14 June 2006; EU Network of Independent Experts
on Fundamental Rights, “Opinion n°3/2006: The human rights responsibilities of the EU member
states in the context of the CIA activities in Europe (“Extraordinary renditions)”, 25 May 2006;
European Center for Constitutional and Human Rights (ECCHR)(ed.), CIA- ‘Extraordinary
Rendition’ Flights, Torture And Accountability – A European Approach, 2nd ed., Berlin, 2009.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, “Report of
the Events Relating to Maher Arar: Analysis and Recommendations”, Ottawa, Minister of Public
Works and Government Services, 2006; Commission of Inquiry into the Actions of Canadian officials
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