Diplomatic Assurances - A judicial and political analysis of the undermining of the principle of non-refoulement

Abstract: In December 2001, the Swedish television programme “Kalla Fakta” uncovered the story of Ahmed Agiza and Muhammed El Zari, who after having been denied asylum in Sweden, were arrested by the police and deported in haste to Egypt. The two men were suspected of terrorist activities and even though Egypt was well-known to mistreat political opponents in general, and alleged Islamic terrorists in particular, the Swedish government decided to have them transferred. Both Agiza and El Zari later claimed that they were tortured in Egypt. The disclosure resulted in a massive outcry and the Swedish government were heavily criticised by a great number of both domestic and international actors for having violated its international law obligations and Agiza’s and El Zari’s human rights. Sweden, on the other hand, claimed that it had done whatever one could possibly require to ensure that the men were treated correctly, while also making sure that its national security was protected. This claim sheds a light on an old conflict that has been reinforced by the emerge of the globalised threat from terrorism and the violent and repressive responses towards it; namely, how to at once respect state security and human rights. The attacks of 9/11 and the “Global War on Terrorism” (the GWoT) have created an atmosphere where this conflict has increased to a level so that it now seems unsolvable and where the proponents of each perspective seem to have less and less understanding for the arguments of the opponent. The main argument of many governments, as well as many others, is that human rights and democracy can only be ensured and protected by states and that this requires that threats against the states security have to be eliminated. The human rights advocates, on the contrary, claim that fundamental institutions such as democracy, the rule of law and human rights cannot be protected by the undermining of the same. This dissertation focuses on the use of diplomatic assurances, a method where one state assures another state that they will refrain from torturing a returnee upon apprehension, and how the systematic use of such a method could undermine the principle of non-refoulement. The main objective is to discuss if and how diplomatic assurances, as being part of the Global War on Terrorism, might create a parallel legal sphere for alleged terrorist in which they are denied fundamental human rights. To do this, I contextualise the issue in a wider political discussion, claiming that one of the major reasons for this development is the general de-legitimisation of opposing political apprehensions as being non-political, and illustrating this with the securitisation (de-politicisation) of terrorism. I argue that by labelling people as terrorist, they are both denied access to the political sphere and de-humanised. The enduring answer on how to meet the terrorist threat is, according to me, not to wage a war but to widen the scope of our understanding of the political.