Refugees: The right not to return

But the principle of non-refoulement is increasingly being transgressed

By Peter Rosenblum with Radhi Rhayu & Anna Wigernmark

THE events of September 11 continue to have ripple effects around the world, taking a toll on individual liberties and threatening established doctrines of protection. One of the doctrines at risk is non-refoulement - prohibiting a state from returning anyone to a country where he or she might face persecution or torture. When there is a threat of torture, the prohibition is absolute no matter what the crime or alleged crime of the person.            

Since 11 September 2001, there are new pressures on states to expel suspected terrorists. The pressures come from many quarters, including the United Nations. On 28 September 2001, the UN Security Council adopted Security Council resolution 1373, mandating that all states deny safe haven to those individuals who finance, plan, support, or commit terrorist attacks or who support havens to terrorists. While the resolution doesn't relax other obligations, news reports from around the world suggest that some states are more zealous about expelling suspected terrorists than preventing torture or abuse at the other end.  The US has reportedly transferred a significant number of detainees to countries like Egypt, Morocco and Jordan, with the knowledge - and perhaps even the intent - that they would be tortured.            

It is surprising that one of the first documented cases of this kind comes from Sweden. Soon after 11 September 2001, the Swedish government returned two Egyptian men, Ahmed Agiza and Mohammad El-Zari, to Egypt. The two men originally fled their country in 1991, claiming persecution. A couple of years later they were convicted, in absentia, of "terrorism" by a military court and sentenced to 25 and seven years, respectively. Unaware of each other, they made their way to Sweden where they sought refugee status.            

Judging from the credible reports of human rights groups in Egypt, the two would face significant risks of torture, and possible death sentences, once returned to Egypt. At other times, the risk would have been enough to merit protection in Sweden pending a full exhaustion of national and international remedies. But times have changed: their right to protection was denied for national security reasons and Sweden chose to expel the men quickly. In exchange, the Egyptian authorities essentially agreed not to torture them. In diplomatic letters, the Government of Sweden stated its understanding that the detainees would "not be subjected to inhuman treatment" or the death penalty. The Egyptian authorities responded that their rights would be respected "according to what the Egyptian constitution and law stipulates."            

It is not unusual to subject the return of nationals to explicit conditions. In extradition, many countries now condition return of murder suspects to the United States - and other death penalty hold-outs - to an agreement that they will not be subject to the death penalty. But it isn't quite the same thing as conditions regarding torture. In the first place, no country acknowledges committing torture; it would be like an individual acknowledging that he molested children or beat his wife. Would you place a child in his care if he agreed not to molest that particular child? Probably not. Certainly not, if you were in no position to monitor the situation closely. In the case of the two Swedish asylum-seekers, the problems were compounded by the fact that Swedish authorities did nothing to follow up on the detainees during the critical period after their return to Egypt: Only after five weeks did Swedish diplomats visit the detainees and, even then, it was in the company of prison officials. Subsequent visits were also monitored. In the meantime, the family of one of the detainees was receiving reports of torture, including electroshock and denial of food and medical attention. The UN Human Rights Committee has inquired into the cases and the Committee Against Torture is in the process of reviewing complaints raised on behalf of the two. Cases may also be brought to the European Court of Human Rights.            

During an NGO-sponsored discussion at the Palais on Thursday, the Special Rapporteur on Torture, Theo van Boven, acknowledged the extent of the problem. The Swedish case suggests the problems with convenient diplomatic arrangements to overlook a state's past performance with respect to torture. Given the facts of the Swedish cases, Mr van Boven suggested it may be time to review the use of similar diplomatic agreements.            

But with all the problems with the Swedish cases, they are exceptional for the amount of information that has become public. The more profound threats may come from what is still hidden. In December 2002, the Washington Post reported that the CIA was handing low-level Al Qaeda suspects over to foreign intelligence services, "known for using brutal means" in interrogation. At that time, it was estimated that fewer than 100 had been transferred in these "extraordinary renditions," but the United States has provided no official data. There have been other articles, notably in the New York Times, the Economist and the Guardian, but with few new details.            

In addition to suspected terrorists captured outside the US, there are large numbers of foreign citizens who have been expelled from the US or undergone 'voluntary' departure after detention for small immigration infractions. At a briefing at the Palais two weeks ago, the Center for Constitutional Rights, a New York-based NGO, cited the cases of two individuals being deported from the US to Syria and Egypt, respectively. The latter was handed over to security forces in Cairo and, reportedly, endured three months of torture before being released thanks to personal connections in Egypt. A Palestinian-Jordanian was deported to Jordan after being held for two months in solitary confinement in a Texas jail. He had reportedly agreed to 'voluntary' departure as he was afraid he would be held indefinitely in the United States and would be unable to support his family.            

The number of cases far outstrips the capacity of NGOs to report. Without mobilising NGOs in countries around the world and putting pressure on countries like the United States in international fora, we may never know how many cases like Agiza and El-Zari are occuring with the active complicity of the international community.

Peter Rosenblum and Radhi Thayu are with the Human Rights Program, Harvard Law School. Anna Wigernmark is with the Swedish NGO Foundation for Human Rights.