Trusting the Torturers

By Joanne Mariner, FindLaw.com. Posted August 22, 2005.

"Trust but verify," Ronald Reagan once said, describing his approach to Soviet arms reduction efforts. The unspoken corollary to his admonition was that promises alone are worthless.

But even empty promises are tempting when the recipient wants to believe them. And so it is with the U.K. government, which has been making arrangements for the return of security suspects to countries that practice torture. Last week, the British signed an agreement with Jordan that affirmed that deportees to the latter country would not be mistreated. It is believed to be negotiating with nine other countries, including Egypt and Algeria, to obtain similar pledges.

Still reeling from recent terrorist attacks, the U.K. is seeking easy ways to deport foreigners perceived as security threats. But its zeal to be rid of unwanted guests should not blind it to the dangers of its current approach.

Jordan, like Egypt and Algeria, is a country in which prisoner abuse is a serious risk. The "Memorandum of Understanding" that the U.K. and Jordan signed last week will not fix this problem. Nor should such paper assurances convince the British government that any deportees it sends to Jordan will be safe.

"Diplomatic Assurances"

International law establishes an absolute prohibition against torture. The prohibition includes, specifically, an obligation not to send a person to a country where he or she is at risk of ill-treatment.

At present, despite some recent improvements, the risk of torture in Jordan remains real. In its 2004 report, the National Center for Human Rights, an official body, stated that it had logged more than 250 prisoner complaints alleging torture or ill-treatment. Last September the Center announced that a detainee had died in Juwaida Prison as a result of torture.

The "diplomatic assurances" that the U.K. just obtained -- Jordan's formal guarantees that it will treat returned persons in accordance with its human rights obligations -- do not obviate this risk. Diplomatic assurances have already been tried by several other European countries. The record so far gives few reasons to believe that they work.

Reviewing the recent use of diplomatic assurances in Sweden, Austria, Germany and Turkey, among others, Human Rights Watch found them to be ineffective in preventing torture. In an April 2004 report, the organization detailed cases where persons returned based on diplomatic assurances were in fact tortured or ill-treated.

As Human Rights Watch has explained, diplomatic assurances are based on trust, and on trust that itself lacks a firm basis. Governments in states where torture is practiced almost always hide the problem, denying its existence. Where such official assurances are unreliable as a general matter, they will probably also be unreliable in any given case. And it defies common sense to presume that a government that routinely flouts its binding obligations under international law can be trusted to respect those obligations for reasons of diplomatic courtesy.

The Agiza Case

The case of Ahmed Agiza and Mohammad al-Zari is instructive. In December 2001, the two men were expelled from Stockholm to Cairo even though the Swedish authorities had previously determined that the men had a well-founded fear of persecution if returned to Egypt. The government ordered their expulsions based on assurances from the Egyptian authorities that the men would not be subject to the death penalty, torture or ill-treatment, and that they would receive fair trials.

It was subsequently revealed that the men were handed over to U.S. operatives at Bromma Airport in Stockholm; hooded, shackled, and drugged; placed aboard a U.S. government-leased plane; and transported to Cairo. They were held in incommunicado detention for a full five weeks before the Swedish ambassador to Egypt visited them.

The men have credibly alleged that they were tortured and ill-treated in those five weeks and that the abusive treatment continued even after Swedish diplomats began monitoring them. A classified Swedish government report from January 2002 indicated that the men told the Swedish authorities about this abuse, but the Swedish government took no action and in fact omitted these allegations from its public reporting on the cases.

While al-Zari was finally released from prison without charge, Agiza was put on trial in April 2004. (He had been tried in absentia in Egypt in 1999 and sentenced to 25 years of hard labor.) The trial was conducted in a special military court, and the proceedings were flawed by serious violations of the right to a fair trial. In the course of the proceedings, Agiza told the court that he had been tortured in prison and requested an independent medical examination, which the court denied.

The Swedish authorities were denied access to the first two of the four trial hearings, and did not take action on Agiza's claims that he was tortured. But they did finally acknowledge that Agiza's trial was unfair.

In May, the U.N. Committee Against Torture ruled that Sweden had violated the ban on torture by expelling Agiza to Egypt. The committee concluded that the procurement of diplomatic assurances from Egypt, which included no mechanism for enforcement, were insufficient to protect against the manifest risk of torture.

"Prompt and Regular Visits"

The Memorandum of Understanding that the U.K. signed with Jordan purports to have a mechanism for post-return monitoring of detainees. It includes a provision for detainees to have "prompt and regular visits" from a representative of an independent body nominated by the two countries. And it stipulates that such visits "will include the opportunity for private interviews with the returned person."

But this monitoring mechanism provides little additional safeguard against abuse. First, it should be noted, neither Jordan nor the U.K. has any incentive to expose violations. Jordan, of course, could be implicated in torture or ill-treatment, and the U.K. could be implicated in violating the prohibition against returning people to a country in which they face torture.

Second, it is difficult to ensure that detainees will feel confident enough to report any abuse. Terrified prisoners often do not report mistreatment because they may have to face their torturer as soon as the prison visitor leaves.

And perhaps most importantly, the agreement lacks an effective mechanism to secure compliance. It does not establish a penalty for failure to abide by its terms, nor does it even provide that the abused prisoner would be returned to the U.K.

As an agreement based on trust, it reflects wishful thinking where, instead, a healthy skepticism is appropriate.

Joanne Mariner is a New York-based human rights attorney and deputy director of the Americas Division of Human Rights Watch.

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