Since diplomatic assurances are controversial and may not in themselves provide protection from torture and other ill-treatment, the following considerations should be taken into account. Diplomatic assurances are unacceptable in circumstances: • where there is substantial and credible evidence that torture and prohibited ill-treatment in the country of return are systematic, widespread, endemic, or a recalcitrant or persistent problem; • where government authorities do not have effective control over the forces in their country that perpetrate acts of torture and ill-treatment; or • where the government consistently targets members of a particular racial, ethnic, political or other identifiable group for torture or ill-treatment and the person subject to return is associated with that group. Due-process safeguards must also be in place to ensure that any person subject to return can challenge their return before an independent and impartial tribunal. Rendition The UN High Commissioner for Human Rights and the Council of Europe have also expressed significant concerns about the use of unlawful rendition or the transfer across borders of suspected terrorists who are considered to pose a security risk. The High Commissioner for Human Rights has pointed out that cases have come to light that demonstrate that some of these transfers are taking place outside the law, in the absence of procedural safeguards such as due-process protection and judicial oversight. Persons subject to such transfers often have no ability to challenge the legality of their transfer or the reliability of the assurances given by the receiving state that they will be protected from torture and other illtreatment.415 Renditions under unlawful circumstances will violate due process guarantees and thus be at odds with international human rights law; they may also violate the absolute prohibition on torture, inhuman and degrading treatment, the right to an effective remedy and the right to liberty. As such, it is incumbent upon states to have in place procedures to address the phenomenon of unlawful rendition whether by the activities of its own agents, the presence of foreign agents or the use of its airspace. The Secretary General of the Council of Europe has made the following recommendations on how best to contain the practice of rendition.416 These are: • all forms of deprivation of liberty outside the regular legal framework need to be defined as criminal offences in all states and be effectively enforced. Offences should include aiding and assisting in such illegal acts, as well as acts of omission (being aware but not reporting), and strong criminal sanctions should be provided for intelligence staff or other public officials involved in such cases; • the rules governing activities of secret services appear inadequate in many states and better controls are necessary, in particular over the activities of foreign secret services on their territory; 415 Op. cit., note 404, Report of the UN High Commissioner for Human Rights, paras. 18-33. 416 Secretary General’s 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, doc. SG/Inf (2006)5, 28 February 2006. See also, 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. Countering Terrorism, Protecting Human Rights 143