Invoking Theo van Boven’s 2004 General Assembly report (see above), the independent expert details the problems associated with reliance on assurances: compliance with such guarantees cannot be verified in the same manner as assurances in death penalty cases;44 diplomatic assurances against torture are not legally binding and include no sanctions for any breach; and post-return monitoring is often frustrated by lack of access to detention facilities and denials of requests for independent monitoring by doctors or lawyers.45 He also comments on the dynamics of torture and how learning of violations “is further frustrated by the fact that persons subjected to torture are often reluctant to speak about the abuse out of fear of further torture as retribution for complaining.”46 The independent expert also quotes the special rapporteur’s conclusion regarding reliance on diplomatic assurances to effect returns to countries where torture is systematic: “in circumstances where a person would be returned to a place where torture is systematic, ‘the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.’”47 In his own conclusions, the independent expert states: Given the absolute obligation of States not to expose any person to the danger of torture by way of extradition, expulsion, deportation, or other transfer, diplomatic assurances should not be used to circumvent the nonrefoulement obligation.48 Diplomatic Assurances are No Safeguard against Torture Diplomatic assurances—formal representations on the part of one government to another—are legally unenforceable though not always without political effect. When diplomatic assurances are made against torture or ill-treatment by states with a record of such abuse, they particularly lack credibility and effect. The damage is wrought not only 44 For information regarding the distinction between assurances against the death penalty and assurances against torture, see “Empty Promises,” p. 3, footnote 2 and pp. 18-19. In general, monitoring a government’s compliance with assurances that it will not execute the death penalty is easier than monitoring compliance with assurances against torture, which is illegal and practiced in secret. As well, the death penalty is rarely carried out immediately after a person’s return, thus any potential breach of the assurances (e.g. sentencing a person to the death penalty despite assurances to the contrary) can be identified and addressed before the human rights violation occurs. In cases where diplomatic assurances are proffered as a guarantee of protection against torture, however, sending states run the unacceptable risk of being able to identify a breach, if at all given the secrecy surrounding torture, only after torture or ill-treatment has already occurred. 45 Report of Independent Expert, p. 20, para. 57. 46 Ibid. 47 Ibid., p. 20, para. 59. 48 Ibid., p. 20, para. 61. HUMAN RIGHTS WATCH VOL. 17 NO. 4(D) 18