Diplomatic Assurances in the Cases of Expulsion to Torture : Right or Wrong?

In this master’s thesis, I analyse the legality discourse of diplomatic assurances in the cases of expulsion to torture. The reason for this study is that there are controversies in International Human Rights Law surrounding the permissibility of creating and using diplomatic assurances in torture-expulsion cases. The ongoing discussion about the validity of assurances in the cases of expulsion to torture could be divided into two conflicting categories: oppositional approach and optimistic approach. What both approaches have in common is that they argue that there is a pertinent need to evaluate if there are substantial grounds to believe that the returnee would be in danger of being subjected to torture. This evaluation process is known as torture risk assessment, which is inherent within the application of the principle of non-refoulement to torture, as a jus cogens norm of International Law. The jurisprudence of the European Court of Human Rights, in the landmark case of Othman (Abu Qatada) v. the United Kingdom, shows that by creating strong diplomatic assurances, which for example, encompass effective post-return monitoring and enforcement mechanisms, the real risk of torture shall be removed and the individual could be returned safely. This strengthening of diplomatic assurances in the cases of expulsion to torture is a practical response to compensate for the ambiguity inherent in different aspects of the concept of torture. This ambiguity includes uncertainties about what torture is and when and how it might happen. This is the main reason for the need to conduct torture risk assessment and to formulate effective and enforceable assurances in the cases of expulsion to torture. Based on this, assurances should be seen as the manifestation of States’ intent to create binding international obligations in direct connection and with reference to their obligations under the principle of non-refoulement to torture