I. BACKGROUND AND CONTEXT
1.
The term “diplomatic assurances”, as used in the context of the transfer of
a person from one State to another, refers to an undertaking by the receiving State to the
effect that the person concerned will be treated in accordance with conditions set by the
sending State or, more generally, in keeping with its human rights obligations under
international law.
2.
Reliance on diplomatic assurances has been a longstanding practice in
extradition relations between States, 1 where they serve the purpose of enabling the
requested State to extradite without thereby acting in breach of its obligations under
applicable human rights treaties, 2 national – including constitutional – law, and/or
provisions in extradition law which would otherwise preclude the surrender of the
individual concerned. 3 Their use is common in death penalty cases, but assurances are
also sought if the requested State has concerns about the fairness of judicial proceedings
in the requesting State, or if there are fears that extradition may expose the wanted
person to a risk of being subjected to torture or other forms of ill-treatment.
3.
However, the use of diplomatic assurances is not confined to the area of
extradition. Increasingly, assurances that the person who is to be removed will not be
subjected to torture or other forms of ill-treatment are resorted to in the context of
removal procedures such as expulsion or deportation, 4 and also where individuals are
transferred to other countries through informal measures which do not offer any
procedural safeguards. This practice, which is sometimes referred to as “rendition” or
“extraordinary rendition”, is resorted to with increasing frequency to remove persons
whom the sending State suspects of involvement in terrorist activities and/or considers
a danger to national security, including to countries which are reported to practice or
condone torture. 5
1
Extradition is a formal process involving the surrender of a person by one State to the
authorities of another for the purpose of criminal prosecution or the enforcement of a sentence.
In the context of extradition proceedings, the two States involved are usually referred to,
respectively, as the “requesting” and the “requested” State.
2
See below at paragraphs 16–26.
3
Extradition agreements (whether bilateral or multilateral) and national legislation related to
extradition typically provide for refusal grounds – that is, conditions under which the requested
State may, or must, refuse the extradition of an individual. These include: the political offence
exemption; discrimination (or non-persecution) clauses; non-extradition for reasons related to
the requested State’s own notions of justice and fairness; non-extradition of nationals; bars to
extradition based on international/regional human rights and/or refugee law, which have been
incorporated into applicable national legislation. For more details, see S. Kapferer, The Interface
between Extradition and Asylum, UNHCR, Legal and Protection Policy Research Series,
PPLA/2003/05, November 2003, at paragraphs 69–112.
4
Unlike extradition, which requires formal acts of two States, expulsion and deportation are
unilateral procedures of the sending State. They are, however, subject to safeguards and
guarantees, including, in particular, the requirement that they have a basis in national law which
must conform to international standards, and that individuals concerned be given an opportunity
to challenge the lawfulness of such procedures.
5
See, for example, High Commissioner for Human Rights, Human Rights Day Statement: On
Terrorists and Torturers, 7 December 2005; Report of the High Commissioner for Human
Rights on Protection of human rights and fundamental freedoms while countering terrorism to
the UN Commission on Human Rights, UN document E/CN.4/2006/94, 16 February 2006, at
2