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Rejecting the Torturers’ Promise: CSJ Files Amici Brief in Fourth Circuit on Behalf of 30 Human Rights Scholars

Amici argue that the Convention Against Torture Prohibits the removal of individuals to  third-countries based upon diplomatic assurances that the receiving country will not torture.

On March 26, 2015, the Center for Social Justice Equal Justice Clinic filed an amici curiae brief on behalf of 30 human rights scholars in support of the petitioners in Bimenyimana v. Holder, a case testing the absolution prohibition on transfers to torture established in international and domestic human rights law. CSJ students, Christina Le ‘15 and Thomas Lehman ‘15, under the supervision of Professor Jenny-Brooke Condon, joined with American University law professor, Stephen Vladeck, to file a brief arguing that the U.N. Convention Against Torture (“CAT”) and the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) prohibit the removal of non-citizens on the basis of untested diplomatic assurances issued by the very governments from which torture is feared. Thirty scholars of human rights law, who teach at law schools throughout the country, signed on to the brief to explain why CAT and FARRA, as well as the Fifth Amendment guarantee of due process of law, require meaningful adversarial testing and impartial review of diplomatic assurances, which, standing alone, cannot resolve whether an individual faces a likelihood of torture upon removal.

The case, a petition for review currently pending before the Fourth Circuit, involves the attempted removal of three Rwandan nationals who were previously tortured by the Rwandan government and who claim they face a strong likelihood of torture again. In 2005, a federal district court threw out a criminal prosecution of the men in the United States because the only evidence linking the men to the crime were confessions extracted through torture by the Rwandan government. Shortly thereafter, an immigration judge deferred their removal to Rwanda, finding that it was more likely than not that they would be tortured again if sent back. But in 2013, the U.S. Department of Homeland security terminated that immigration judge’s order, attempting to return the three men to Rwanda based on untested diplomatic assurances from Rwanda that they will not be subjected to further torture upon their return.

The amicus brief argues three main points:

  1. That CAT and FARRA requires effective, independent, and impartial review of diplomatic assurances before they may be relied upon to justify a previously recognized threat of torture.
  2. The Fifth Amendment Due Process Clause separately requires certain basic procedural protections before an individual may be removed based upon diplomatic assurances that the receiving country will not torture.
  3. U.S. courts should follow the same standards courts in the United Kingdom, Canada, and The European Court of Human Rights use when subjecting diplomatic assurances to meaningful testing and review.

“Relying on diplomatic assurances requires a concession that a threat of torture and other human rights violations exists in the receiving country. This situation has been characterized as a Catch-22 because if assurances are needed in the first place, they cannot reliably predict a threat of torture,” commented Christina Le, “Working on this brief was an exciting opportunity to explore this important area of international law and to co-author a brief on behalf of some of the country’s most distinguished human rights law scholars.”

The “United States’ obligation to protect individuals from returns to torture is supported by a norm of international human rights law I learned about in my human rights law classes here at Seton Hall,” noted Thomas Lehman. “Having the opportunity to defend that essential principle in a case with a real world impact on the individuals in question was an incredibly fulfilling experience for me.”