Delivered Into Enemy Hands - Human Rights Watch

Aware that Hong Kong was worried about “international concerns” over having a Libyan-
registered aircraft land in Hong Kong, the CIA offered to pay for a third party charter flight for
Saadi. “If payment of a charter aircraft is an issue, our service would be willing to assist
financially to help underwrite those costs,” the document reads. It goes on to say, “Please
be advised that if we pursue that option, we must have assurances … that [Saadi] and his
family will be treated humanely and that his human rights will be respected.” 460
Though it is unclear if the United States ever received such assurances from Libya and, if
so, in what form, diplomatic assurances are insufficient to protect against the risk of
torture or ill-treatment. 461 The United Kingdom entered into a memorandum of understanding
(MOU) with Libya in October 2005 in which Tripoli promised not to torture terrorism
suspects sent from the UK. In 2007, however, British courts blocked returns of people to
Libya under the MOU on the grounds that the suspects remained at real risk of being
tortured if sent back to Libya, despite the MOU. 462
One former CIA officer said that diplomatic assurances were made with the knowledge that
they would be ignored. “Each time a decision to do a rendition was made, we reminded the
lawyers and policy makers that Egypt was Egypt, and that Jimmy Stewart never starred in a
movie called ‘Mr. Smith Goes to Cairo,” said Michael Scheuer, a former CIA officer who
claims to have initiated renditions to other countries during the Clinton administration.
“[The lawyers] usually listened, nodded, and then inserted a legal nicety by insisting that
460 Tripoli Document 2162.
461 See, generally, Human Rights Watch, “Empty Promises”: Diplomatic Assurances No Safeguard against Torture, Vol. 16, No.
4(D), April 15, 2004, http://www.hrw.org/reports/2004/04/14/empty-promises; See also UN Commission on Human Rights,
“Civil and Political Rights, Including the Questions of Torture and Detention,” UN Doc. E/CN.4/2006/6 (December 23, 2005),
http://www.unhcr.org/refworld/docid/441181ed6.html (accessed July 2, 2012), p. 2 (stating that “Diplomatic assurances are
not legally binding and … are ineffective and unreliable in ensuring the protection of returned persons”).
See also cases rejecting the use of diplomatic assurances: UN Committee Against Torture, Agiza v. Sweden, 233/2003 (May
20, 2005) (Sweden’s procurement of diplomatic assurances from Egypt were not sufficient to protect the detainee against a
manifest risk of torture upon return to Egypt. Assurances contained no mechanism for enforcement and the Swedish
government provided no evidence it investigated the flagrant and consistent use of torture against detainees in Egypt);
European Court of Human Rights (ECHR), Saadi v. Italy, 37201/06 (February 28, 2008); ECHR, Khaydarov v. Russia, 21055/09
(May 20, 2010); ECHR, Klein v. Russia, 24268/08 (April 1, 2010); UN Committee Against Torture, Pelit v. Azerbaijan,
CAT/C/38/D/281/2005 (May 29, 2007); Mahjoub v. Canada, 2006 FC 1503 (December 14, 2006).
462 UK Special Immigration Appeals Commission, DD and AS v. The Secretary of State for the Home Department, Appeal No.
SC/42 and 50/2005 (April 27, 2007), http://www.bailii.org/uk/cases/SIAC/2007/42_2005.pdf (accessed July 2, 2012); See
also UN Committee Against Torture, Korban v. Sweden, CAT/C/21/D/088/1997 (November 16, 1988), para. 6.5, 7.
145 HUMAN RIGHTS WATCH | SEPTEMBER 2012