Diplomatic Assurances Research Articles

Zapewnienia dyplomatyczne w Polsce

The aim of this article is to present the controversial institution of diplomatic assurances, to analyze the legal possibility of their use in extradition proceedings in Poland and to discuss a wellknown case, or rather attempts to use them by Poland. The text presents the views on diplomatic assurances, outlines the practice of their use around the world and the legal framework which creates the possibility of their use by the Polish judicial authorities together with diplomatic services. By describing a well-known case when Poland was obliged by a judgment of the ECtHR to obtain diplomatic assurances from another state, is made a conclusion about the emerging practice and theoretical possibility of using the institution of diplomatic assurances to strengthen theline of defense at least in some cases.

Co-Operation in Judicial, Legal, Security, and Socioeconomic Matters: Covid-19 as a Ground for Refusal of Extradition: The Value of Diplomatic Assurances

Co-Operation in Judicial, Legal, Security, and Socioeconomic Matters: Covid-19 as a Ground for Refusal of Extradition: The Value of Diplomatic Assurances

The importance of the “right to the truth” in El-Masri case: Lessons learned from the extraordinary rendition

Introduction: In December 2012 the European Court of Human Rights (the Court or ECtHR) delivered the landmark decision in the case of El-Masri v. F.Y.R Macedonia (‘Macedonia’) ruling that CIA extraordinary rendition program amounts to torture. Macedonia was held responsible for torture and detention of El-Masri; lack of conducting effective interrogation; lack of request for diplomatic assurances from CIA agents and interference with the right to private and family life. Some of the judges referred to the right of the truth as the right of El-Masri to be familiar with the facts why he was held incommunicado and being subject of the CIA extraordinary rendition program. Objective: By using the El-Masri v. Macedonia case, this paper aims to map the necessity for protection of human rights even when national security and war against terrorism are at stake. The right to the truth should be of utmost importance besides proving torture –it is the way for the victim to accomplish moral victory and to gather all facts of the case. Method: The relevant texts were gathered from the HUDOC database, Cambridge University Press, Google Scholar, while interviews were conducted with Margarita Tsatsa Nikolovska – former judge in the European Court of Human Rights and Aleksandar Bozinovski – the journalist who discovered to the public the extraordinary rendition of Khaled El-Masri. Results/Discussion: the ruling in the El-Masri case was the first time when an international court held that the CIA’s extraordinary rendition program amounts to torture. However, the Court did not argue about the culpability of CIA agents nor the explanations how Macedonia can be held accountable for torture committed in a foreign country by foreign agents just because of lack of diplomatic assurances and allowed extraordinary rendition at the Skopje Airport.

Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China

China human rights experts have responded with scepticism to a “troubling precedent” handed down by the New Zealand Supreme Court in June. The decision, in Minister of Justice v Kim [2021] NZSC 57, opens the way for the country's Minister of Justice to approve the extradition of a man suspected of murder to the People's Republic of China (PRC). Our concern is that the Court’s underlying assumptions represent more of a politically convenient “noble lie” in terms of New Zealand-PRC bilateral relations than a reflection of current evidence. That is to say, judicial concern to leave room for a reasonable ministerial decision that the PRC can be relied on to stick to its assurances means that the Court downplays how the PRC actually has behaved in practice. Furthermore, the current structure of New Zealand’s extradition laws means the Court’s approach of maintaining final ministerial discretion allows the ultimate question of the defendant’s fate to be answered using a process that is worryingly tainted by geopolitical considerations. If nothing else, this case demonstrates why the underlying statutory framework needs amending in line with recommendations from the Law Commission.

Russian National Extradition Case

Extradition — European Convention on Extradition, 1957 — Primacy of European Convention on Human Rights, 1950 in extradition proceedings — Diplomatic assurances — Whether diplomatic assurances by Prosecutor General’s Office of Russian Federation relevantHuman rights — Treaties — European Convention on Human Rights, 1950 — Article 3 — Article 6 — Extraterritorial effects of Convention — Penal system of Russian Federation — Whether Austria having to deny extradition for criminal prosecution to Russian Federation — The law of Austria

Geheime Detentiecentra in Oost-Europa: de Aansprakelijkheid van Staten voor Medeplichtigheid bij Ernstige Mensenrechten-schendingen in de Strijd tegen Terrorisme (Secret Detention Sites in Eastern Europe: State Responsibility for Complicity in Serious Human Rights Violations in the War on Terror)

This chapter discusses to what extent Council of Europe Member States have been held responsible for their collaboration (i.e. by providing secret detention sites) with the CIA in the United States' extraordinary rendition program. To answer this question, we first discuss the background and organisation of the extraordinary rendition program in general and the secret detention sites on European soil. Second, we address several aspects of the case law of the European Court of Human Rights: the attribution of conduct in violation of articles 3 and 5 of the European Convention on Human Rights; the knowledge on the part of the Council of Europe Member States; the role and significance of diplomatic assurances; and, lastly, the distribution of the burden of proof by the Court.

Extradition and Mental Health in UK Law

The response of UK extradition law and practice to requested persons presenting with mental health disorders is multi-faceted and unnecessarily complex. There are a number of reasons for this. They centre upon the law failing to adequately recognise that mental health cases can give rise to concerns not present in physical health cases. The deficiencies of the law are found in the three applicable bars to extradition; oppression, human rights and forum. They also can be seen in the applicable rules of evidence and the practice of diplomatic assurances. The time has come for UK law to specifically and systematically respond to mental health disorders in the context of extradition.

The Revision of the General Comment No. 1 on the Implementation of Art. 3 uncat’s Non-Refoulement Obligation in Light of the Use of Diplomatic Assurances

On 26 June 1987, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (uncat) entered into force. The comprehensive set of regulations of the Convention aimed at ensuring a more effective implementation of the international community’s common endeavours to eradicate torture globally. Nevertheless, torture practice still prevails in many countries. New crises, such as the international fight against terrorism, constantly compromise the achievement of the Convention’s overall objective; in particular, they present a great challenge to States Parties’ compliance with the uncat’s explicit nonrefoulement obligation of Art. 3 uncat. Aiming for the transfer of a person to another State and in a bid to nevertheless satisfy their international obligations, States Parties tend to rely on so-called diplomatic assurances from the receiving State, thereby potentially exposing the individual to the risk of being subjected to torture following the transfer. Being aware of the new challenges to the protection of Art. 3 uncat, in 2015, the United Nations Committee against Torture finally decided to undertake a comprehensive review of its General Comment No. 1 (1997). As the text of 1997 was considered to no longer meet the needs of the States with respect to the new challenges of the 21st century, the revision was inter alia aimed to also explicitly address the alarming trend of the application of diplomatic assurances and to include an assessment of their legitimate use in the context of Art. 3 uncat. This article outlines the aforementioned review process with regard to the use of diplomatic assurances in the context of torture and analyses the question of their legitimacy under international law with respect to the uncat and in light of and in comparison to the European Court of Human Right’s jurisdiction in this context.

Can diplomatic assurances, in their practical application, provide effective protection against the risk of torture and ill treatment? A focus on the evolution of the pragmatic approach of the European Court of Human Rights in removal cases of suspected terrorists

In order to implement counterterrorism measures, governments have frequently resorted to the use of diplomatic assurances. This practice aims to facilitate and legitimize the removal of non-nationals to third states with dubious human rights records, contrary to the obligation not to refoule set out under international law. This article raises the question of whether such assurances provide, in practical terms, effective protection against the risk that the transferred person may be subjected to torture and ill treatment upon return. With the purpose of addressing this issue, it is essential to evaluate whether diplomatic assurances can be deemed adequate and reliable guarantees of safety against ill treatment. In this regard, the position taken by international and regional human rights bodies is of profound importance. For this reason, this article considers and comparatively analyses the existing jurisprudence on non-refoulement and diplomatic assurances of such bodies. In particular, it closely examines the pragmatic approach of the European Court of Human Rights, by focusing on the abundant case law on the removal of suspected terrorists.

Deportation with Assurances and Human Rights

A foreign national maybe considered irremovable for various administrative and practical reasons. One significant category comprises those persons who cannot be deported due to human rights concerns in the country to which they would be returned.Nonetheless,such persons may in principle be deemed undeserving of refugee protection in the host state, or otherwise undesirable, including on the basis of alleged serious crimes committed prior to their arrival or due to public safety concerns arising from their conduct after arrival.They thus end up to be trapped in a legal and‘status’ limbo. The aim of this article is to investigate whether diplomatic assurances on the fair and human treatment of the deportee would be able in principle to reduce the risk of refoulement, and whether they are effective in practice in preventing torture and ill-treatment in the receiving country. In addressing this issue, it explores the case law of international human rights bodies showing how diplomatic assurances are generally upheld as one factor amongst many in the assessment of the risk, rather than trusted at face value. However, given that the safety of return is a matter of fact, this article questions the possibility of returning a person, with the assurance he/she will not be ill-treated, to a country where torture is notoriously practiced. Moreover, it argues that devolving upon diplomats and political acts the protection of fundamental rights in security-related deportations would also defend the maintenance of a regime of exceptionalism for people suspected of serious criminality and who cannot be removed from the territory of the host state

Foreword

When aliens suspected of having committed serious crimes cannot be removed from the territory of the state in which they find themselves, what are the implications for international criminal justice? Neither alienage nor non-removability is a bar to prosecution for serious crimes committed in the host state. However, where the serious crime has an international component, particularly where it was committed overseas, how does the alien’s situation of non-removability impact upon the legal and institutional structures through which the objective of criminal justice is pursued? This Symposium presents a preliminary view on some of the prosecution challenges that arise in relation to non-removable aliens suspected of serious crimes. Four distinct themes are addressed: (i) the implications for the ‘traditional’ framework of extradition law, as the principal international legal avenue for ensuring international criminal justice for serious crimes committed overseas; (ii) the international legal standing of diplomatic assurances as a tool used by states to circumvent non-removability and ensure the prosecution of serious crimes overseas; (iii) the possibilities for host state prosecution of such overseas crimes in cases where the suspect is non-removable; and (iv) certain potential consequences of carrying out prosecutions of such crimes before international criminal tribunals.

Unilateral Diplomatic Assurances as an Alternative to Provisional Measures

During litigation on the international plane, states sometimes will issue assurances either to the other litigant or to the international court directly. This article explores how those assurances interact with applications for provisional measures. The practice of courts varies with regard to how to react to these assurances, though the usual approach is that assurances issued to another state or individual are generally non-binding, while assurances issued to the court directly are binding. At the same time, litigants can apply to the court for provisional measures to prevent actions that would disturb the dispute. When the assurances are considered non-binding, they are treated as questions of fact and can be assessed for credibility and reliability, as a part of the provisional measures analysis. But when the assurances are considered binding, they are treated as questions of law, and the undertaken legal obligation disposes of the request for a provisional measures order. This article will examine the practices of the International Court of Justice and the European Court of Human Rights on this issue, identifying where their practices diverge and converge, and recommending that the dual nature of assurances, as both factual and legal, be considered in assessing their value.

Diplomatic Assurances as an Alternative to Provisional Measures in Expulsion Cases

This paper will discuss the possibility for a state to provide diplomatic assurances in expulsion cases as an alternative to receiving a court order for provisional measures against it. In particular, it will draw on the emerging practice before the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) on the general use of assurances (or “promises”, “undertakings”, or “unilateral declarations”) and their interaction with applications for provisional measures. Both the ECtHR and ICJ will entertain these kinds of pledges, but they consider them differently when the declaration is made between states or made directly to the court. In addition, there are slightly different considerations when the declaration seeks to settle the case in its entirety, or to merely serve as an alternative to provisional measures. One emerging difficulty is that assurances that an expelled individual will not be mistreated tend to be assessed as questions of fact when issued between states, but on the other hand assurances to a court generally treated as issues of law when given directly to the court. In turn, this different treatment means that assurances made to the court tend not to be examined for credibility and reliability, so that, if states were to adopt a practice of issuing assurances in an expulsion case to the court instead of to another state, the expelling state might be able to overcome any non-refoulement provisional measures without credibility and reliability assessments. This practice would then erode some of the important protection of the non-refoulement obligation.

Non-coupables! Le non-refoulement, les assurances diplomatiques et la réinstallation des acquittés des juridictions pénales internationales dans leurs pays d’origine

This article addresses an issue henceforth well-known as one of the most topical challenges international criminal justice is subject to: the relocation of acquitted in their home countries. It starts with a mere factual finding on the contextual differences between the situation at the icty, the ictr and the icc while analyzing the legal issues surrounding returning home (unfair trials, personal safety, double jeopardy) before leaving room to a gripping and dialectical discussion on the applicability of the non-refoulement to international organizations. Are legal non-state entities – such as icc and ictr as a subsidiary body of the un Security Council – legally liable for returning an acquitted person back to his country where his life would be threatened because of his political opinions or his membership to a particular group? The article identifies diplomatic assurances as a possible avenue, while listing the indicators and the conditions of validity of such assurances.

When a gamekeeper turns poacher: torture, diplomatic assurances and the politics of trust

Diplomatic assurances are promises which purport to manage the tension between the need for national security and the human rights obligations not to send individuals to countries where they would be at risk of torture. This article looks at how and why diplomatic assurances have become a part of policy efforts to make counterterrorism human rights compliant and as part of a wider strategy for drawing a line under the damaging legacy of the ‘war on terror’. This positive gloss on the use of diplomatic assurances is, however, in contrast to the worries motivating human rights advocates which centre on the implications for the global anti-torture regime. Behind the doubts surrounding diplomatic assurances is a wider concern, centred on whether the past architects of the war on terror can be trusted to progressively develop the rules and norms governing this domain.

The United Kingdom and Diplomatic Assurances: A Minimalist Approach towards the Anti-torture Norm

In recent years, domestic counter-terrorism measures have reshaped the relationship between individual terrorist suspects and the state. Regional and international human rights frameworks regulating government behaviour during or after an emergency appear not to be a priority when set against national security concerns. The increasing reliance on diplomatic assurances and memoranda of understanding as means to fulfil the obligations stemming from the anti-torture norm is an illustration of this state approach. These agreements are not enforceable in law, however, they do form part of long established diplomatic practice. What distinguishes the pre- and post- 9/11 terrain is not the use of these agreements per se. Rather, it is the growing use of these agreements as part of extradition or deportation proceedings or as part of irregular transfers such as extraordinary renditions in order to reduce state obligations under the human rights framework. The heavy reliance on these agreements by the United Kingdom, particularly after 9/11, aptly illustrates the changing approach towards national security.

The United Kingdom and Diplomatic Assurances: A Minimalist Approach towards the Anti-Torture Norm

In recent years, domestic counter-terrorism measures have reshaped the relationship between individual terrorist suspects and the state. Regional and international human rights frameworks regulating government behaviour during or after an emergency appear not to be a priority when set against national security concerns. The increasing reliance on diplomatic assurances and memoranda of understanding as means to fulfil the obligations stemming from the anti-torture norm is an illustration of this state approach. These agreements are not enforceable in law however they do form part of long established diplomatic practice. What distinguishes the pre and post 9/11 terrain however is not the use of these agreements per se. Rather, it is the growing use of these agreements as part of extradition or deportation proceedings or as part of irregular transfers such as extraordinary renditions in order to reduce state obligations under the human rights framework. The heavy reliance on these agreements by the United Kingdom, particularly after 9/11, illustrates aptly the changing approach towards national security.

Recent Jurisprudence of the United Nations Committee against Torture and the International Protection of Refugees

Over more than 25 years, the United Nations Committee against Torture, established under the 1984 United Nations Convention against Torture, has adopted a series of decisions on individual claims which may be considered relevant for the development and deepening of certain aspects of international and domestic law on the protection of refugees. There is an interesting cross-fertilisation between the application and interpretation of refugee law principles and norms and those related to the absolute prohibition of torture and ill treatment. Therefore, the precision and nuance developed by the Committee on concepts such as torture, ill treatment, non-refoulement, investigation of torture, or “substantive” risk of torture shed light and promote best practices by state authorities on questions such as the existence and proof of “well founded fear of persecution”, the limits of extradition, and the usefulness of diplomatic assurances in the field of refugee law. This article analyses some of the latest decisions and recommendations of the Committee and identifies their relevance to note its contribution to the protection objectives of refugee law.

Are Diplomatic Assurances Adequate Guarantees of Safety Against Torture and Ill-Treatment? The Pragmatic Approach of the Strasbourg Court

The use of diplomatic assurances against torture and other ill-treatment has increased in recent years in response to the continued growth of international terrorism. However, this practice is controversial because it engages the Contracting States’ obligation not to extradite or expel a person where there are substantial grounds for believing that he or she would face a real risk of being subjected to treatment contrary to Article 3 ECHR in the receiving State. The Strasbourg Court’s pragmatic approach suggests that in certain circumstances, following an analysis of the quality of the assurances and their practical effect, diplomatic assurances can be adequate guarantees of safety. As a result, it will be argued that the Strasbourg Court cannot be accused of circumventing the absolute prohibition found in Article 3 ECHR by accepting the diplomatic assurances policy of the Contracting States. The author will conclude by arguing that the Strasbourg Court’s approach is effective as it reinforces the absoluteness of Article 3 ECHR while at the same time allowing States to protect their national security from terrorism.