Deportation with Assurance: A Breathing Space for States' Human Right Obligations and Counter-terrorism Policies?

Profile of the Author - Aishwarya Gairola is a third year law student at Lloyd Law College.

INTRODUCTION

The unprecedented expansion of human right dialogue permeating to the global discourse of refugees’ rights, that was earlier erroneously assumed to be a humanitarian problem, has resulted in the universal acceptance of the ever-pervading nature of human rights. The acceptance has invariably brought state actors under close scrutiny to comply with norms of human rights by protecting the interest of their citizenry and non-citizenry, alike. International Human Rights bodies, such as the UN Human Rights Committee (HRC), the Committee against Torture, and the European Court of Human Rights (ECtHR), dealing with the emerging trend, obligates the states to preserve the human rights of refugees, with article 3 of the Convention against Torture (CAT), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and Article 3 of the European Convention on Human Rights (ECHR), endorsing protection against refoulement. However, after September 11, 2001 attacks, well-founded vigilance among states has pushed the objectivity of national security as a frontrunner in states’ priority. 

The state’s duty to mitigate the threat posed on its territory and citizenry by non-citizens, suspected of serious criminality while upholding its obligation under various human rights conventions to eliminate the instances of torture of migrants, has prompted states to adopt machinery such as deportation with assurance( DWA), or diplomatic assurance, to use as an effective tool. These tools are viewed as the state's compliance with its obligation of the principle of non-refoulment.

DWAs, despite establishing legally permissible common grounds for states’ rights, duties and obligations, is imputed to have failed to categorically eliminate all the risks of torture and violation of other human rights, the only claim that makes its application an exception permitted under non-refoulment. These imputations raise grave questions on the nature of deportation with assurance, with states promoting them as an alternative tool to effectively preserve the human rights of undesirable aliens and the contentions of human rights activists branding them as a state’s counterterrorism strategy furthering exclusionary practices, under the garbs of compliance with human rights.

DEPORTATION WITH ASSURANCE

The declaratory nature of refugee status and the customary nature of non-refoulment leaves a number of migrants undeserving of refugee status and protection, and irremovable and not subject to deportation owing to the human rights concerns in their country of origin. Article 3 ECHR and Article 3(1) of the UNCAT prohibit the deportation of persons to countries where they face a “real risk” of torture. Article 3 ECHR also prohibits removal where the individual would face a real risk of inhuman or degrading treatment. The unwanted foreigners, who could neither acquire refugee status nor be deported by the states, due to the states’ obligation under various conventions are left in a legal and status limbo. The objective of Deportation with Assurance is, therefore, projected to obtain understanding, with or without an MoU, with the government of the host country or the receiving state to eliminate risks of ill-treatment and violations of human rights upon deportation. [1]

Diplomatic assurances, by obtaining international legitimacy,  have facilitated the smooth deportation of undesirable non-nationals in compliance with the international human rights obligations.  Despite the assurances, the question of violation of non-refoulment often raises concerns. 

NON-REFOULEMENT

The principle of non-refoulment, due to the percolation of the discipline of human rights in the refugee crisis, has emerged as a customary international law that applies to all the migrants, both regular and irregular including asylum seekers and stateless persons, despite finding its basis in 1951 Refugee Convention. 

Deportation with assurance well within the bounds of the principle of non-refoulment that prohibits the host country from sending migrants to their country of origin where they have a well-founded fear of persecution, only after meeting the suitability criteria, would be able to command legality under the obligation of conventions and treaties.  In order for DWAs to meet the requisite suitability criteria to initiate the deportation proceedings of a migrant [2], or stateless person, suspected or convicted of serious criminality, the host state should start with a careful examination of the nature of risks and harms facing the deportee in the event of his return to the country of origin Diplomatic assurances, in fulfilling the suitability criteria, should effectively eliminate all reasonably possible factors contributing to the risk in each case of deportation. 

The host state’s reliability with regard to its careful examination of the source of risk and its effective authority to mitigate the risk by controlling the actions of the sources has become a crucial requirement for the effective implementation of diplomatic assurance, as was undertaken by ECtHR in Chahal case. [3] Chahal, an Indian national, was given an indefinite leave to remain in the UK after illegally entering the country in the early 70s. Upon his visit to Indian in 1984, due to his association with the Sikh separatist movement, he was detained by the police and subjected to torture. Upon his return to the UK, his application for political asylum was dismissed and deportation proceedings were initiated against him after his presence was labelled as a threat to national security. The assurance by the government of India formed the basis of elimination of risk to Chahal’s life upon his deportation to India. The ECtHR, subsequently, held the deportation violating Art 3 of the ECHR that set an absolute prohibition against torture or inhumane or degrading treatment, with the Indian government’s assurance providing little help to eliminate the risk the brutal forces coupled with no effective control of deporting state’s on the actions and the outcome of the source of torture.

Despite the adoption of a threefold mechanism to identify and eliminate the risk, and the initiation of the process of deportation on a matter of fact basis well within the lines of obligations under convention and treaties, deportation with assurances are still labelled as a fundamental threat to essential principles of human rights and more specifically, of rights such as non-refoulment. [4]

DOES DWA PROVIDE COMMON GROUND FOR DEPORTATION UNDER STATES’ COUNTER-TERRORISM POLICY AND NON-REFOULEMENT? 

Diplomatic Assurances are highly paradoxical. The objective aim of DWAs is to exact guarantees of good behaviour from a country where human rights abuses are a “recalcitrant and enduring” problem.  The trust of non-derogation and compliance to the bilateral agreement in the form of diplomatic assurances by countries, with long-standing histories of torture, both state-sanctioned and otherwise, violating their obligations under multilateral treaties and various conventions,  brings to the forefront the contention of human rights activists, drawing the curtain on the states’ agenda of antiterrorism in the name of human rights advocacy.  The diplomatic assurances, that were earlier largely used to extradite, are now peddled by host states as primarily an exercise to eliminate torture, that also happens to address the concerns of terrorism and threats of national security in its course of action.

The diplomatic assurances with countries where torture is a serious problem and the death penalty is still not outlawed are reduced to mere promises insufficient to address torture, let alone eliminate it. Moreover, DWAs conveniently overlook the fact that torture, as a state practice, is often carried out in secret and are categorically denied by the perpetrators. The torture comes to the knowledge of deporting the state and the government, only after the abuse occurs; all of which derogates the claim of diplomatic assurance as an extended limb of human rights operation. [5]

The diplomatic deportation of Abu Qatada [6], a  Jordanian radical Islamist preacher, accused of association with Al-Qaeda by the United Kingdom to Jordan, negotiated under the 2005 MoU, formulated to be comprehensive enough to remove any absolute risk to the life of Abu Qatada and the deportation of any other Jordanian. The deportation of Qatada rested on the crucial requirement that the effective implementation of diplomatic assurances relies on the capacity of the receiving State to exercise effective control over the whereabouts of the individual, which despite the most-well formulated contracts, in the absence of a non-derogatory, absolutely binding obligations, is foreseeably beyond the authority of the state.

The deportation of Maher Arar [7] from the US in 2002 to Syria, despite his dual nationality, enabling deportation to Canada after which he was held for a year in Syria and recounted the gruesome tale of abuse and torment that included incarceration in tomb-like cells and psychological abuse upon his release in 2003,  helps to draw the accurate inference about state’s readiness to deploy DWAs, that not even remotely has anything to do with human rights compliance.

The non-binding nature of DWAs, the rampant cases of torture with countess multilateral treaties prohibiting torture, the well-founded fear of latent, sneak attacks, that are often state-sanctioned and the appraisement of torture after the injury with no risk assessment, do not command novelty but are well-established facts, the knowledge of the occurrence of which, should not come as surprise to states. Despite the well-documented evidence establishing the failure of DWAs, the states’ existing stance on diplomatic assurances and signing agreements to deport is not indictive of state’s compliance with human rights obligation, but of states’ readiness to make a deal, while acknowledging the torture. 

CONCLUSION

Deportation with assurance has emerged as an effective tool to demonstrate a state’s compliance with human rights obligations under various treaties and conventions while pushing their agendas of removing unwanted foreign nationals and avoiding outbursts of negative response to their systematic counterterrorism policies. Deportation with assurances are not explicitly mentioned in international law, but their application has gained sufficient momentum to cast the shadow of precedence in the years to come, with states such as Britain, that promotes itself as a global icon to eradicate torture, relentlessly campaigning for deportation with assurance to be accepted as a normative international practice.

Diplomatic assurances do not provide breathing space for human rights to exist in the face of deportation of persons deemed a threat to national security under states’ counterterrorism policies. Sending people back to the places where they are at a high risk of torture and inhuman and degrading treatment, regardless of the person's legal identity and social status, highlights states ambivert attitude toward torture. In a world, where the dominance of colonial authority is the only way to control the actions of another state, one of the key requisites of diplomatic assurances call for the deporting state to take entire control of the surroundings and the whereabouts of the deported person and the source of probable torture in order to eliminate all possibility of risk and torture faced by him in his country of origin. The requisite of effective control after deportation to eliminate the threat of torture, in theory, makes DWA an effective tool to apply the states’ counterterrorism policies within the bounds of human rights, extraterritorially, have very little claims to grab in practicality. 

Despite the prohibition of torture as a non-derogatory norm or jus cogen, regardless of states’ ratification of convention and treaties, calling for universal compliance, cases of torture, both state-sanctioned and otherwise, are increasingly reported. Amidst all this, if states assume that a non-binding agreement is a panacea for all the torture and threats, then the credibility of the state and DWAs and their permissibility under international human rights should be put under rigorous scrutiny. DWA, though permitted under international law, is impossible to be viewed and normatively adopted as an effective tool to objectively eliminated the risk of torture and therefore, fail to guarantee the coevality of human rights obligations and counterterrorism policies that states often use as an argument to campaign for diplomatic assurances.  

References :

[1] Soering v. The United Kingdom, 1/1989/161/217, Council of Europe: European Court of Human Rights, 7 July 1989, https://www.refworld.org/cases,ECHR,3ae6b6fec.html [accessed 20 June 2021].

[2] UN High Commissioner for Refugees (UNHCR), UNHCR Note on Diplomatic Assurances and International Refugee Protection, August 2006, https://www.refworld.org/docid/44dc81164.html [accessed 20 June 2021].

[3] Chahal v. The United Kingdom, 70/1995/576/662, Council of Europe: European Court of Human Rights, 15 November 1996 https://www.refworld.org/cases,ECHR,3ae6b69920.html [accessed 20 June 2021].

[4] Mariagiulia Giuffré, 'Expelling Undesirable Foreigners: The Challenge of Human Rights' (Refugee Law Initiative, School of Advanced Study, University of London) https://rli.sas.ac.uk/sites/default/files/files/Session%20IV%20Mariagiulia%20Giuffré.pdf[accessed 20 June 2021]

[5] Julia Hall, 'Mind the Gap Diplomatic Assurances and the Erosion of the Global Ban on Torture (Human Rights Watch) https://www.hrw.org/legacy/wr2k8/diplomatic/diplomatic.pdf  [accessed 20 June 2021]

[6] Othman (Abu Qatada) v. The United Kingdom, Application no. 8139/09, Council of Europe: European Court of Human Rights, 17 January 2012, https://www.refworld.org/cases,ECHR,4f169dc62.html[accessed 20 June 2021]

[7] Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture, 15 April 2005, D1703, https://www.refworld.org/docid/42c3bd400.html [accessed 20 June 2021].

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