Navigating the Boundaries of Prevention: The Role of Opcat in Deportations with Diplomatic Assurances
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| Author | James Watson,Antenor Hallo de Wolf |
| DOI | 10.1177/016934410902700404 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 27/4, 525–566, 2009.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 525
naVIGaTInG THe bOunDaRIes
Of PReVenTIOn: THe ROle Of
OPCaT In DePORTaTIOns wITH
DIPlOMaTIC assuRanCes
A H W and J W*
Abstract
Deportation of foreign national security suspec ts to States whe re they may fac e a real
risk of torture and other human rig hts breaches is becoming an increasingly frequent
counter-terrorism mea sure. To eect ively reduce the se risks, so as not to be in breach of
their non-refoulement obligation s, removing States, most notably the United Kingdom,
are obtaining diplomatic assurances f rom receiving States that persons returned will be
treated in accordance with their human rights. Veric ation of these assurances , through
monitoring and visiting arrangements, has been held to be an essential part of their
credibility and worth. With developments in monitoring and visiting also being seen
in the area of tortu re prevention, most notably now under th e Optional Protocol to the
Convention, quest ions are being raised c oncerning the obligations of OPCAT ratifying
States with regard to these removals. is art icle examines the possible operation of
the mechanis ms charged with the prevention of torture and othe r ill-treatment under
the OPCAT in terms of these removals, and whether they are a satisfactory mea ns of
verifying the ass urances.
1. INTRODUCTION
ere is within the eld of removals a developing narrative; one triggered by, although
not exclusive to, the national security issues that have come to dominate in many States
and the use of remova l as a means of ‘eli minating’ te rrorist threat s. e narrative
* Antenor Hal lo de Wolf is a visiting fellow of the Sc hool of L aw of Br istol Universit y, the Unite d
Kingdom. He was involved with Br istol University’s OPC AT Research Projec t, an Art s and
Humanities Res earch Council funded rese arch project studying the implement ation of the OPCAT.
James Watson is a PhD candid ate in the School of Law of Bristol Univer sity. e authors would like
to than k Prof. Ra chel Murray a nd Dr El ina Steinerte for their comments and suggestions on this
article. A ll internet sources we re last accessed on 19 Octob er 2009.
Antenor Hallo de Wolf a nd James Watson
526 Intersentia
concerns the fact that a nu mber of removals are barred by various forms of the
principle of non-refoulement; a principle that obligates States not to remove pers ons
when there is evidence that they wil l face a risk of certain of their human rights being
abused in the receiving State.1 is ha s led the removing States to take measures in
order to reduce those risks to a level where they will no longer prohibit removal. One of
the more controversial of these measures is the use of diplomatic assurances; whereby
promises are obtained from receivi ng States that persons returned will be treated in
accordance with their human rights and would, for example, have their human dignity
respected, have access to a lawyer and other such matters. An increasingly central part
of t he assurance is t he use of monitoring through visits to those det ained persons
who have been removed. Without means to veri fy whether the promis es are being
kept, such guarantees will rarely be considered su ciently robust to lower the level
of risk prohibiti ng removal. So far this monitoring has largely been limited to either
visits f rom the sending State’s embassy sta or those inter nal to the receiving State.
Aside from the considerable controversy that has arisen from the question of whether
relying on assu rances from a State w ith a record of ill-treatment is a viable approach
to reducing such risks,2 the developments in th is area have raised importa nt questions
about the role of monitoring and v isiting as a means of verif ying those assura nces. It
is these latter questions t hat shall be the focus of this ar ticle.
At the same time, it is po ssible to discern a second narrative, one that concerns
the prohibition and prevention of torture, and one that th is work will suggest is very
much intertwined with the above. Since the draing of the United Nations Convention
Against Torture and O ther Cruel, Inhuman or De grading Treatment or Punishment
(UNCAT), and the expanding reach of other tortu re related measures, there has been
a growing shi towards prevention as opposed to prohibition of torture.3 is has been
reected in the development of visiti ng bodies such as the European C ommittee for
the Prevention of Torture (CPT)4 and those created under the Opt ional Protocol to
1 See Article 33 of the 1951 Convention Relatin g to the Status of Refugee s and Article 3 of the United
Nations Convention against Tortu re and Other Cr uel, Inhuman or Degradi ng Treatment or
Punish ment.
2 See Report of the UN Speci al Rapporteur on Torture to the UN Commissi on on Human Rig hts, UN
Doc. E /C.4/2006/6, 2 3 December 2005, pa ras 31 a nd 32; a nd Human Rights Watch, Still a t Risk:
Diplomatic As surances no Safeguard aga inst Torture, Vol. 17, No. 4 (D), Apri l 2005.
3 Evans, M. and Morga n, R., ‘Torture: Prevention Versus Pun ishment’, in: Scot t, C. (ed.), Torture as
Tor t, Har t Publishing, Ox ford, 2001, pp. 136–139.
4 e CPT was established under t he Council of Europe to monitor pla ces of detention with the v iew
of streng thening, where necessary, prot ection for tho se deprived of their liber ty from tor ture and
from inhuman or degr ading treatment or punishment . e CPT’s mandate is enshrined in Article 1
of the Eur opean Convention for the Prevention o f Torture and In human or Degr ading Treatment
or Punishment, whi ch provides: ‘e Committee sha ll, by means of visits, exami ne the treatment of
persons depr ived of their l iberty wit h a view to s trengthening , if necessa ry, the protection of such
persons from tortu re and from inhuman or degra ding treatment or punish ment.’ See further ww w.
cpt.coe.int/en/about.htm#Mandate.
e Role of OPCAT in Deportat ions with Diplomatic Ass urances
Netherlands Q uarterly of Human R ights, Vol. 27/4 (2009) 527
the UNCAT (OPCAT),5 whose very purpos e is to regularly visit ‘places where people
are deprived of t heir liberty, in order to prevent tort ure and other cruel, in human or
degrading treat ment or punishment.’6
is article will examine the two na rratives a nd the new developments under
them, draw ing upon them to address the following questions. W hat do the OPCAT
and UNCAT have to say in terms of obligations on States parties when removi ng
persons w ith assura nces in terms of monitoring the places of detention to wh ich a
person is being removed? Is there a role for an OPCAT body in reducing the risks
that are prohibiting removal? A re there dierent obligations upon a State party to
OPCAT i n terms of using diplomatic assurances than on a State not pa rty to the
Optional Protocol? us, the ar ticle will briey exami ne the concept of prevention as
embodied in the OPCAT as well a s the latter’s background and major components. It
will then turn to discu ss the relationship between removals and the obligation of non-
refoulement, as well as the development of the u se of diplomatic as surances, main ly
through the perspec tive of the United Kingdom, and how these have brought visiting
into the forefront of the removals debate. Si nce the United Kingdom ha s ratied the
UNCAT and the OPCAT, it is justiable to address how t his may play a role in the
discussions of deportations with assurances. In this article we arg ue that the UNCAT’s
obligation to prevent torture and its implementation through the OPCAT requires the
United Kingdom7 to consider the use of the visiting bodies created under the OPCAT
to monitor t he proper use of these as surances. is argument wil l be broadened by
looking at what further role OPCAT visiting bodies may have in a number of removal
scenarios.
2. THE MOVE TO PREVENT
2.1. THE NATURE OF THE OBLIGATION TO PREVENT TORTURE
As already outlined in the introduct ion, the shi towards prevention of torture would
appear to follow a growing trend under general international law. Under this trend,
States using deportations wit h assurances will have to consider what the obligation to
prevent torture requires from them.
According to the International Court of Justice (ICJ), there are various international
legal instruments that contain a n obligation on State part ies to take certain steps
5 UN Gener al A ssembly Resolution 57/199 on the Optional Protocol to the Convention Against
Torture and Other Cruel, Inhuman or De grading Treat ment or P unishment, UN Doc . A/
RES/57/199, adopted on 18 December 2003.
6 Article 1 OPCAT.
7 is applies to all OPCAT ratif ying countrie s that use or intend to use remova ls with assura nces.
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