The United Kingdom and Diplomatic Assurances: A Minimalist Approach towards the Anti-torture Norm

in International Criminal Law Review
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In recent years, domestic counter-terrorism measures have reshaped the relationship between individual terrorist suspects and the state. Regional and international human rights frameworks regulating government behaviour during or after an emergency appear not to be a priority when set against national security concerns. The increasing reliance on diplomatic assurances and memoranda of understanding as means to fulfil the obligations stemming from the anti-torture norm is an illustration of this state approach. These agreements are not enforceable in law, however, they do form part of long established diplomatic practice. What distinguishes the pre- and post- 9/11 terrain is not the use of these agreements per se. Rather, it is the growing use of these agreements as part of extradition or deportation proceedings or as part of irregular transfers such as extraordinary renditions in order to reduce state obligations under the human rights framework. The heavy reliance on these agreements by the United Kingdom, particularly after 9/11, aptly illustrates the changing approach towards national security.

The United Kingdom and Diplomatic Assurances: A Minimalist Approach towards the Anti-torture Norm

in International Criminal Law Review

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References

2

Kate Jones‘Deportations with Assurances: Addressing Key Criticisms’International and Comparative Law Quarterly (2008) 183; Lena Skoglund ‘Diplomatic Assurances against Torture – An Effective Strategy?’ 77 Nordic Journal of International Law (2008) 319; Christopher Michaelsen ‘The Renaissance of Non-Refoulement? The Othman (Abu Qatada) Decision of the European Court of Human Rights’ 61(3) International and Comparative Law Quarterly (2012) 750 p. 751. See also the United Kingdom’s third party intervener submission in Saadi v. Italy (2009) 49 ehrr 730.

6

As quoted in Johnstonsupra note 4.

9

Venice Commission Reportsupra note 3 paras. 10–23.

23

Venice Commission Reportsupra note 4 paras. 78–85.

27

Venice Commission Reportsupra note 4 paras. 78 – 80.

33

Satterthwaitesupra note 31 p. 11.

44

Fenwicksupra note 43 p. 157.

45

De Londrassupra note 41 p. 73.

60

Jonessupra note 4 p. 30.

65

Venice Commission Reportsupra note 4 paras. 140–42.

89

Bremssupra note 1 p. 303.

117

Serena Sileoni‘Italy’s Treatment of Immigrants and the European Convention on Human Rights’Journal of Immigration Asylum and Nationality Law (2010) 159 p. 163

135

Michaelsensupra note 2 p. 764.

139

Satterthwaitesupra note 18; Weissbrodt and Bergquist supra note 18; Irish Human Rights Commission “Extraordinary Rendition: A Review of Ireland’s Human Rights Obligations” (Irish Human Rights Commission Dublin 2007); Silvia Borelli ‘Rendition Torture and Intelligence Cooperation’ in Hans Born Ian Leigh and Aidan Wills (eds.) International Intelligence Cooperation and Accountability (Routledge London 2011) p. 98.

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