A/HRC/13/39/Add.5 contrary to international law and have been vehemently rejected by human rights monitoring bodies in the past. The CAT Committee stated on several occasions that the CAT applies in any territory under a State party’s jurisdiction which is to be understood to include “all areas under the effective de facto control” of the State party, and “all persons under the effective control of its authorities, of whichever type, wherever located in the world.”196 Equally, the Human Rights Committee and European Court of Human Rights have held that States parties are responsible for violations beyond their territories in cases of effective control over a territory197 or a person.198 Consequently, the prohibition of nonrefoulement is also applicable to transfers of detainees in custody beyond the State territories. Otherwise this would give States the possibility to circumvent their obligations by transferring a person to one of their own detention facilities abroad. 242. A means that has been increasingly applied by States to deport terrorist suspects to countries where they would normally be at risk of torture is the request and reception of diplomatic assurances from the respective foreign authorities to refrain from torturing the individual upon return. The United Kingdom has even concluded general Memoranda of Understanding with third countries, such as Jordan, Libya, Lebanon and Algeria.199 At the European level, discussions on developing guidelines for their application were initiated at the Council of Europe, but were finally brought to an end after severe criticism by the main actors in the field of torture prevention. Nevertheless, a “deportation with assurances” strategy enabling States to deport persons despite of a torture risk only on account of a diplomatic assurance has been accepted by the British House of Lords in a recent case.200 While the CAT Committee, the Human Rights Committee, and European Court of Human Rights have not generally opposed diplomatic assurances, they have clarified that they do not absolve a State from its obligation to assess the risk of torture in the individual circumstances of the case.201 243. I have repeatedly criticized the practice of diplomatic assurances as “nothing but attempts to circumvent the absolute prohibition of torture and non-refoulement”.202 I am concerned of their increased application by Governments and acceptance by courts. Diplomatic assurances are an unreliable and ineffective instrument for the protection against torture, as witnessed by numerous cases where suspected terrorists were subjected to torture upon return despite of given assurances and guarantees.203 My main concerns are that the assurances are sought from countries with a proven record of torture and mostly in relation to persons belonging to a high-risk group (e.g. “Islamic fundamentalists”). They are 196 197 198 199 200 201 202 203 66 CAT/C/CR/33/3, para. 4 (b); CAT/C/USA/CO/2, para. 20. CCPR/C/79/Add. 93, para.10, Issa and Others v. Turkey, 16 November 2004, ECtHR, Application no. 31821/96, paras. 68 et seq. Öcalan v. Turkey, 12 May 2005, ECtHR, Application no. 46221/99, para. 91. HRC, Delia Saldias de Lopez v. Uruguay, supra note 288, paras. 12.1–3.; Öcalan v. Turkey, 12 May 2005, ECtHR, Application no. 46221/99, para. 91. E/CN.4/2006/6, para 29; Nowak/McArthur, page 216, fn 474; Human Rights Watch, “Not the Way forward - The UK’s Dangerous Reliance on Diplomatic Assurances”, 22 October 2008. http://www.hrw.org/en/reports/2008/10/22/not-way-forward. House of Lords (United Kingdom), RB (Algeria) (FC) and Another (Appellants) v. Secretary of State for the Home Department (Respondent); OO (Jordan) (Original Respondent and Cross-appellant) v. Secretary of State for the Home Department (Original Appellant and Cross-respondent), [2009] UKHL 10, 18 February 2009, available at: http://www.unhcr.org/refworld/docid/499be5b92.html [accessed 13 November 2009]. CAT/C/34/D/233/2003 (2005), para. 13.1–5; ECtHR, Saadi v. Italy, Appl. No. 37201/06, 28 February 2008, para. 148; CCPR/C/88/D/1416/2005. E/CN.4/2006/6, para 32; A/HRC/10/44/Add.2, para. 68. CAT Committee, Agiza v. Sweden; Human Righs Committee, Alzery v. Sweden.