Delivered Into Enemy Hands - Human Rights Watch

each country to which the agency delivered a detainee would have to pledge it would treat
him according to the rules of its own legal system.” 463
In the rare case in which diplomatic assurances have been found to satisfy obligations,
they were much more robust than those the United States requested in the Tripoli Documents,
including, among other things, post-return monitoring plans through ostensibly
independent third parties. 464 But even these monitoring plans failed to adequately protect
the individuals from the risk of torture in countries where the level of abuse is such that
they would face a real risk of torture there. 465 Many forms of torture—such as sexual
violence, prolonged solitary confinement, waterboarding and other mock executions, and
sleep deprivation—leave no visible marks and can therefore be hidden. Detainees are also
often afraid to report abuse to outside monitors for fear of reprisal.
Governments have an obligation under international law to investigate and prosecute
those responsible for human rights violations and to provide redress for victims of
abuse. 466 The Convention against Torture requires states to ensure that all acts of torture
are criminalized under the state’s domestic law. The United States has done so in its
federal anti-torture statute, the War Crimes Act, and through individual state criminal
codes. 467 The Convention against Torture and the ICCPR obligate states to ensure that their
domestic legal systems include an effective remedy for redress and an enforceable right to
fair and adequate compensation, and that such remedies are enforced. 468
463 Michael Scheuer, “Exporting Detainees,” International Herald Tribune, March 12, 2005,
http://www.nytimes.com/2005/03/11/opinion/11iht-edscheuer.html (accessed August 29, 2012). See also Human Rights
Watch, Double Jeopardy: CIA Renditions to Jordan, April 8, 2008, http://www.hrw.org/reports/2008/04/07/double-jeopardy-0.
464 See ECHR, Othman v. United Kingdom, 8139/09 (January 17, 2012), para. 194 (In which the court found that a Memorandum
of Understanding (MOU) between the UK and Jordan amounts to a diplomatic assurance, provided sufficiently detailed
and transparent promises from Jordan that the detainee would not be tortured upon return, in addition to a post-return
monitoring mechanism that would enforce the promises. The court affirmed that the MOU is “superior in both its detail and
its formality to any assurances which the Court has previously examined,” and addressed the protections that will specifically
be afforded to the applicant upon arrival in Jordan).
465 See, for example, Lai Cheong Sing and Tsang Ming Na v. Canada (Minister of Citizenship and Immigration), 2007 FC 361
(April 5, 2007), para. 141 (“[P]ost-return mechanisms do little to mitigate the risk of torture and have proven ineffective in
both safeguarding against torture and as a mechanism of accountability.”).
466 The duty to investigate and prosecute those responsible for grave violations of human rights has its legal basis in the
ICCPR (art. 2) and the Convention against Torture (arts. 4, 5, and 7).
467 See Anti-Torture Statute, 18 U.S.C. sec. 2340A, http://www.law.cornell.edu/uscode/text/18/2340A (accessed July 2,
2012) (enacted pursuant to the US becoming a party to the Convention against Torture); War Crimes Act, 18 U.S.C. sec. 2441,
http://www.law.cornell.edu/uscode/text/18/2441 (accessed July 2, 2012).
468 Convention against Torture, art. 14; ICCPR, art. 2(3).
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