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
| DOI | 10.1177/2032284417743399 |
| Published date | 01 December 2017 |
| Author | Martina Elvira Salerno |
| Date | 01 December 2017 |
| Subject Matter | Articles |
Article
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
Martina Elvira Salerno
University of Parma, Italy
Abstract
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 guar-
antees 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 com-
paratively 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.
Keywords
Diplomatic assurances, non-refoulement principle, real risk of torture and ill treatment, removal of
suspected terrorists, European Court of Human Rights
Corresponding author:
Martina Elvira Salerno, Universita
`di Parma, Via dell’Universita
`12, 43121, Parma, Italia.
E-mail: martinaelvira.salerno@unipr.it
New Journal of European Criminal Law
2017, Vol. 8(4) 453–475
ªThe Author(s) 2017
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DOI: 10.1177/2032284417743399
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Introduction
Due to the threat of international terrorism, states have been more and more inclined to adopt the
practice of refoulement, which consists in expelling, returning, extraditing or otherwise transferring
those suspected of terrorist activities.
1
However, the transfer of the so-called ‘unwanted security
threats’ has raised issues in relation to what is often referred to as the principle of non-refoulement,
which forbidsthe return of individualsto their country of origin or to othercountries where they might
run the risk of torture or illtreatment. In fact, in order to ‘keep the equilibrium between the effortto
protect human rights, within and beyond borders, and the exigency to uphold states’ concernto face
terrorist violence’, Western democratic governments have started to rely on diplomatic assurances
against torture.
2
However, the use of such assurances as part of states’ response to terrorism has
become a hot topic inthe human rights discourse and has attracted considerable criticism.
3
This article addresses some of the issues related to the practice of relying on diplomatic
assurances and it is structured as follows. Firstly, an overview of the international legal framework
of the non-refoulement principle will be briefly outlined. In particular, emphasis will be put on the
legal nature of non-refoulement. Then, the concept of diplomatic assurances will be analysed
together with the underlying rationale and the practice of states of using such guarantees, which
have been deemed to circumvent the absoluteness of non-refoulement against torture. The follow-
ing section will focus on the assessment of the real risk, referred to in the jurisprudence of the
human rights bodies, the presence of which triggers the use of diplomatic assurances. In fact, these
bodies have investigated whether the procurement of these guarantees is relevant to the risk test
and whether the guarantees are capable of reducing or eliminating the risk of torture or ill treatment
faced by the returned person in the receiving country. It will be argued that obtaining assurances
per se is not sufficient to reduce the real risk of ill treatment. Indeed, they need to be reliable. For
this reason, the last part will consider whether assurances can be relied upon. It will look at the
relevant factors, such as the post-transfer monitoring system, that come into play in considering a
person’s safety on return, which affects the assessment of the reliability of assurances.
It will be argued that the use of diplomatic assurances, although widely criticized, may provide
effective protection against the risk of torture or ill treatment in practice, only if reliable. This
clearly emerges from the analysis of the extensive jurisprudence of the European Court of Human
Rights. In assessing their reliability, it took a standardized approach, insofar as it set out a list of
requirements, the fulfilment of which would make the provided assurances adequate guarantees of
safety against torture. The pragmatic view adopted by the Strasbourg Court revealed that this
standardization has affected the importance awarded to assurances in the risk test. In fact, while in
origin the Court tended to be cautious, by keeping faith with the absolute character of the non-
refoulement principle, it gradually accepted diplomatic assurances as having more and more
weight in the risk analysis. This is to say that if assuran ces contain the criteria listed by the
1. B. van Ginkel and F. Rojas, ‘Use of Diplomatic Assurances in Terrorism-related Cases: In Search of a Balance between
Security Concerns and Human Rights Obligations’, Terrorism and Counter-Terrorism Studies (2010). Available at:
https://icct.nl/publication/use-of-diplomatic-assurances-in-terrorism-related-cases-in-search-of-a-balance-between-
security-concerns-and-human-rights.
2. L. Berna´tova´, ‘Standards of Diplomatic Assurances? A Comparative Study of the Impact of Diplomatic Assurances
against Torture on Risk Assessment in Refoulement Cases’, Central European University 28 (2014), pp. 1, 56.
3. Y. Ghelen, ‘Eroding the Absolute Character of the Principle of Non Refoulement? A Comparative Study of the Use of
Diplomatic Assurances Against Torture’, Central European University 29 (2013), p. 1.
454 New Journal of European Criminal Law 8(4)
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