before the law, the right to a fair trial, the right to private and family life,
and the right to an effective remedy. Depending on the circumstances, it
may also amount to an enforced disappearance.67
In the context of counter-terrorism, some States have made use of
diplomatic assurances, memorandums of understanding and other
forms of diplomatic agreement to justify the return or irregular transfer
of individuals suspected of terrorist activity to countries where they
may face a real risk of torture or other serious human rights abuse. This
practice raises a number of serious human rights concerns. The High
Commissioner for Human Rights has emphasized that, as a practical
matter, these arrangements do not work as in reality they do not provide
adequate protection against torture and other ill-treatment, nor, as a legal
matter, can they nullify the obligation of non-refoulement. In most cases,
assurances are concluded between States which are party to binding
international and regional treaties which prohibit torture and cruel,
inhuman or degrading treatment or punishment and refoulement to such
practices, raising, in any event, the question as to why further bilateral
steps are necessary. In addition, even though all persons are entitled to the
equal protection of existing treaties, assurances amount to the creation
of a two-class system among detainees, by creating special protection for
a selected few, while ignoring the plight of many others. Efforts should
therefore focus on the full implementation of international human rights
obligations through existing structures, notably through the establishment
of systems of regular visits, by independent international and national
bodies, of places where people are deprived of their liberty.
All States have a positive obligation to ensure that their territory is not
used to transfer persons to places where they are likely to be subjected
to torture. This includes taking all practical steps to determine whether
foreign movements through its territory involve such practices where
there are grounds to believe that there is a real risk of irreparable harm.
At a minimum, it means ensuring that any transfer of persons from one
territory to another is undertaken pursuant to a prescription by law and
within the framework of international law. In addition, judicial oversight
and review must be available to the detainee prior to any transfer and
credible allegations of transfers involving a real risk of torture must be
investigated. All the circumstances should be assessed, including the prior
practice on the part of the transiting State, the origin and destination
of the transiting aircraft or vehicle, and the preparedness or otherwise
of the transiting State to share information and/or provide assurances.
The United Nations High Commissioner for Human Rights and the Special
Rapporteur on the question of torture have emphasized the importance
35
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