An man detained by U.S. forces in Iraq in 2005

After September 11, the United States and other countries heavily relied on diplomatic assurances as counterterrorism tools to legally justify transferring people to other states where they were likely to be tortured. These assurances were based on the state receiving a detainee promising that it would treat the transferred person in accordance with certain human rights standards. Sometimes, but not often, a receiving state would also commit to allowing the sending state to check-in on the detainee every now and again. This was often referred to as “post-transfer detainee monitoring.”

Today, this issue has taken a back seat to Trump’s embrace of direct torture. But it’s important to keep a close eye on if, when, and how the Trump administration uses diplomatic assurances. This is especially true because unlike U.S. torture practices, diplomatic assurances haven’t come anywhere close to receiving the same degree of scrutiny and disapproval.

In April, a pitched battled emerged among states, U.N. agencies and human rights groups during a public discussion  hosted by the U.N. Committee against Torture on whether governments should be allowed to ever use diplomatic assurances and, if so, under what conditions. Prior to the event, Canada, Denmark, the United Kingdom, and the United States submitted a joint statement supporting the use of diplomatic assurances, pointing out that states have used assurances to promote respect for the prohibition against torture. They emphatically disagreed with an assertion that the Committee had made that diplomatic assurances were inherently “contrary” to the principle of non-refoulement, which is the legal term that bars a state from transferring someone to the control of another state where there are substantial grounds for believing there’s a real risk the person will be tortured. At the Committee’s public session numerous other states chimed in to add support to this position. 

But states were not proposing carte blanche use. They emphasized that it was unacceptable for states to use assurances to escape their transfer obligations and, to guard against this, they defended their right to use diplomatic assurances if the commitments met strict criteria, such as being “credible and reliable, explicit and specific, and binding upon the institutions of the State.”

Compared to the more absolutist position of many human rights experts and groups—which is that diplomatic assurances are inherently contrary to the torture prohibition, especially when entered into with a state where there are substantial grounds to believe the person being transferred is at real risk of torture—states appeared at first blush to be conceding a reasonable middle ground, as if to say: Yes, states have wrongly used diplomatic assurances to circumvent their transfer obligations under international law, but diplomatic assurances can also effectively reduce the risk of torture under the right circumstances.

Unfortunately, this devotion to what appears to be a pragmatic approach misses the danger that the states’ unified position poses to the prohibition against torture.

Many of the human rights experts that have entered into this debate have studied the inherent flaws in diplomatic assurances, observed the ways sending states have misappropriated them, and witnessed receiving states failing to uphold them. A perspective steeped in these realities makes their positons against diplomatic assurances ones that are anchored in a pragmatism that far exceeds states’ aspirational assertions that diplomatic assurances can work when they are based on some intricate set of criteria.

Knowing these realities, the U.N. Office of the High Commissioner for Human Rights (OHCHR) reiterated to the Committee that diplomatic assurances were not adequate safeguards for deterring transfer abuses. Several human rights organizations took the position before the Committee that assurances were contrary to the principle of non-refoulement.  Other positions also exist, even if they weren’t provided directly to the Committee.

My own views on this issue come largely from the time I spent in 2011 working at the U.S. Embassy in Kabul, Afghanistan, where I was responsible for crafting and implementing the terms of a U.S. diplomatic assurance with the Islamic Government of Afghanistan. At that time I was agnostic as to whether diplomatic assurances were contrary to the prohibition against torture. I should not have been.  My general view has since hardened into believing that they are, in fact, inherently contrary to the goal of respecting the prohibition against torture. This is mainly for four reasons, in no particular order:

Permanent nature of the violation versus the unstable nature of assurances: Diplomatic assurances are often based on bilateral government relations that are inherently unstable. While a diplomatic assurance may seem strong today, tomorrow could bring a different story. The ambassadors and ministers that often enter into these assurances can get replaced or they can lose their authority to officials who aren’t as committed to the assurances. Political winds and alliances can also shift, leading to a receiving state lashing out politically by ignoring the assurances or turning back on their post-transfer monitoring commitments. When the relationships upon which these assurances are built loosen or break, and the diplomatic assurance is breached, there are very limited ways for a sending state to remedy the situation. As I’ve written elsewhere, an “inescapable problem is that once a transfer takes place and the monitoring system does not effectively deter mistreatment then the sending State can at best cease future transfers but it can do very little for the actual victim(s).” All in all, the unstable nature of diplomatic assurances significantly outweighs their prospect for successfully mitigating the risk of torture and other serious human rights violations.

Lack of the receiving state’s compliance: I’m also unconvinced that a bilateral anti-torture commitment, even when it is legally binding, will change the practices of a government that has been willing to breach its international and domestic law torture prohibition obligations. Human rights groups have seen states purposefully evade or behave in ways that significantly hamper the effectiveness of these assurances as well as their monitoring mechanisms, which largely accounts for the concerns raised by a notable independent U.N. anti-torture expert. In Afghanistan, coalition forces first ceased transferring their detainees to a number of Afghan facilities due to concerns of torture, then started transferring them again after those concerns subsided, but then had to re-suspend their transfers when new torture concerns emerged.  Some ISAF countries that engaged in post-transfer detainee monitoring also faced considerable frustrations when, for example, Afghan authorities moved detainees to different facilities without informing the sending states. This resulted in an almost trial-by-error process that left people at risk of torture while sending states revised, and revised again, their diplomatic assurance criteria and the way they implement that criteria.

Lack of respect for the prohibition: But what if a receiving state that has a reputation for torture does respect the terms of the diplomatic assurance? Canada, Denmark, the United Kingdom, and the United States claimed before the Committee that such a success would promote respect for the prohibition against torture. My experience is that it sends a different message: It’s okay for a receiving state to torture some, but not others. This imbalance arose in Afghanistan, where detainees held under a diplomatic assurance reported being treated better than detainees in the same cell or facility who were not held under a diplomatic assurance. A man who alleged to have been tortured in Afghan custody and held with other detainees covered by Canada’s diplomatic assurance told the United Nations: “Except those arrested by Canadians, every single person arrested by NDS [Afghanistan’s intelligence service] officials has to go through the similar experience I went through.” When this sort of differentiation happens, diplomatic assurances can’t comport with the Convention’s goal and purpose of applying the prohibition against torture to all equally. At worst, they can result in the opposite.

Risk assessment avoidance: Finally, states have an obligation to individually assess whether there are substantial grounds to believe that each person it transfers will face a real risk of torture or other serious human rights abuses. Diplomatic assurances often paper over that obligation, such as when sending states automatically accept that a risk of torture exists without learning why different people being sent to different places may experience different risks for different reasons. Diplomatic assurances, when used in this way, are a low-resource and easy way for states to avoid an important procedural obligation that should allow a person to explain the precise reasons why they fear being transferred.  At the extreme, states have applied diplomatic assurances collectively to entire groups of people. Jason Leopold recently posted a Department of Defense Inspector General report that described how the United States did not obtain individual assurances for detainees being transferred in Iraq or from ISAF in Afghanistan.

The lesson I take away from these reflections is that the United States essentially got it backwards in Afghanistan. First they sent detainees to Afghan facilities based on a transfer arrangement. Only then did they monitor Afghan detention facilities where torture was taking place to ensure the arrangement was being respected. The United States should have done it the other way around: First they should have monitored the detention system and conducted individualized refoulement risk assessments. Only then, if there were no concerns, should transfers have taken place.

Image: Scott Olson/Getty