Human Rights Watch's letter to David Miliband, the Foreign Secretary of UK, condemning the Memorandum of Understanding between Britain and Ethiopia

Letter to British Foreign Secretary Miliband on Diplomatic Assurances with Ethiopia

17 September 2009

Secretary of State for Foreign and Commonwealth Affairs
Foreign and Commonwealth Office

Dear Foreign Secretary,

I am writing to express Human Rights Watch's deep concern at the potential consequences of the Memorandum of Understanding (UK-Ethiopia MoU) signed by the governments of the United Kingdom and Ethiopia on December 12, 2008.

The agreement, which concerns the "provision of assurances in respect of persons subject to deportation," is similar to the memoranda of understanding (MoUs) that the UK previously reached with Jordan, Lebanon, and Libya.

As described below, Human Rights Watch has both general concerns about such agreements and specific concerns related to the likely treatment in Ethiopia of individuals deported from the UK under the auspices of the UK-Ethiopia MoU.

In the absence of annulling the MoU, Human Rights Watch strongly urges you to refrain from implementing the agreement and deporting individuals to Ethiopia, where they will face a serious risk of torture and other ill-treatment.

General Concerns Regarding "Diplomatic Assurances"

Agreements between states providing "diplomatic assurances" are inherently unreliable. Human Rights Watch has repeatedly raised concerns with the UK's reliance on and advocacy of diplomatic assurances, most recently in our October 2008 report, "Not the Way Forward: British Policy on Diplomatic Assurances."

The fact is that these diplomatic assurances do not work. In countries where torture is a serious problem, mere diplomatic promises are insufficient to prevent torture. No matter how detailed such agreements are, they cannot eliminate the very real risk faced by people returned to countries-including Ethiopia-that practice such clandestine, brutal abuse.

Because diplomatic assurances are unenforceable promises, a country that breaches them is unlikely to experience any serious consequences if the assurances are violated. In many instances, moreover, it is practically impossible to ascertain whether a breach has occurred. Because torture is carried out in secret, and victims often do not complain for fear of reprisals against them or their families, the practice is hard to investigate, and easy to deny. Notably, neither the sending state nor the receiving state has any incentive to carry out such investigations seriously. To do so might not only reveal human rights violations, but might complicate efforts to rely on assurances in the future.

Diplomatic assurances have been widely criticized by international human rights experts, including then United Nations High Commissioner for Human Rights Louise Arbour, UN Special Rapporteur on Torture Manfred Nowak, and Council of Europe Commissioner Thomas Hammerberg, as well as the UK Parliamentary Joint Committee on Human Rights.

At the regional level, the European Court of Human Rights has stood firm against diplomatic assurances as sought by the UK and other governments: in a string of 2008 rulings concluding that diplomatic assurances are unreliable, including the Grand Chamber decision in Saadi v. Italy, the Court has rejected on the facts assurances against torture as a safeguard against such abuse. It has ruled in key cases that the use of diplomatic assurances for returns to countries such as Tunisia, Uzbekistan, and Turkmenistan would signal a regression in rights protection. We believe that the court will similarly reject the reliability of assurances from Jordan in the Othman case, notwithstanding the decision by the Law Lords upholding his removal.

We also note that the UK government sought not to appeal the ruling by the Court of Appeal in AS & DD upholding a lower court decision that the two Libyan nationals in that case could not be removed because of the risk of torture on return, notwithstanding the memorandum of understanding between Libya and the United Kingdom. In our view, this indicates an acknowledgment by the government that assurances from Libya cannot suffice to ameliorate the risk of torture faced by national security suspects the UK wishes to return there.

Human Rights Conditions in Ethiopia

There are numerous credible reports documenting the regular torture and ill-treatment of detainees by Ethiopian security forces, particularly when individuals are perceived to support political or armed opposition groups against the government.

The fact that individuals deported from the UK may be suspected of being a threat to UK national security only heightens the likelihood that they will be subjected to arbitrary detention, torture, and ill-treatment in detention, and unfair trials if prosecuted in Ethiopia.

Human Rights Watch and other organizations have documented the use of torture by both police and military officials in a range of facilities across different geographic regions of Ethiopia. Detention sites include prisons and other official detention facilities run by local or federal police, military barracks, and secret facilities. Concerns of torture and other mistreatment and lack of due process are often gravest when individuals are detained on suspicion of affiliation to armed opposition, insurgent, or terrorist activity. In some cases torture is applied in the course of interrogations, while in other cases it is used as a form of punishment.

Methods of torture include forcing people to strip and subjecting them to repeated and severe kicking and beatings with sticks, electric cables, rifle butts, iron bars, and other instruments, sometimes at gunpoint; tying the individual's hands and feet and suspending the person upside down and beating them; tying bottles of water to men's testicles; and forcing detainees to run or crawl barefoot over sharp gravel for several hours at a time. Human Rights Watch has also documented cases of rape of women and girls detained in military barracks in Somali region.

Other patterns of serious violations of international human rights and humanitarian law by Ethiopian military (Ethiopian National Defence Force) and police forces include summary or extrajudicial executions, arbitrary and incommunicado detention, indiscriminate attacks, and rape and sexual violence against civilians. Detainees in police and military custody often lack access to legal counsel, medical care, and family members and are routinely subjected to lengthy pre-charge and pre-trial detention in violation of Ethiopian and international law.[1]

As mentioned above, concerns of incommunicado detention, torture, and other ill-treatment are particularly acute when individuals are suspected of affiliation with armed opposition groups or political opposition. These concerns proved all too real in the case of dozens of individuals who were the victims of "regional renditions" in 2007 and 2008 and were deported to Ethiopia, held incommunicado for months, and were in some cases beaten and tortured (see below).

The Ethiopian judicial system remains unable to assert independence in cases having political dimensions. In many such cases, the courts acquiesce to improper prosecutorial demands that defendants remain detained without bail for lengthy periods while prosecutors search for evidence of criminal wrongdoing. This often allows officials to keep people in detention as a purely punitive measure for considerable lengths of time even where no criminal charges are ultimately brought against them. Even when courts attempt to order the release of detainees, for example when individuals are subjected to preventive detention, the judicial decisions are often ignored.

Impunity remains a pervasive problem in Ethiopia. There are occasionally cases of prosecutions of low-level police accused of various crimes but the government has generally failed to appropriately investigate and prosecute police and military commanders and members of the security forces alleged to have committed serious crimes, including torture. In 2005 the government established a commission of inquiry to investigate the deaths of at least 200 people following post-election protests. After an extensive investigation, six of the eight members of the inquiry concluded that the police force used excessive force. After several members of the inquiry received death threats and fled Ethiopia, the conclusions were changed. Since 2005, Human Rights Watch has documented widespread torture and other abuses by military and police forces in Gambella and Somali region, crimes that may amount to crimes against humanity. To date, the Ethiopian government has denied the allegations and has refused to allow credible independent investigations.

Ethiopia's Role in "Disappearances" and Regional Renditions in the Horn of Africa

In addition to concerns related to the torture and ill-treatment of detainees in Ethiopia, Human Rights Watch has additional concerns relating to Ethiopia's recent role in the rendition, abusive interrogation, and incommunicado detention of dozens of men, women, and children who fled Somalia in 2006-2007.[2]

As Human Rights Watch and other human rights organizations have credibly documented, in January and February 2007, following the Ethiopian military intervention in Somalia, at least 90 men, women, and children of 18 different nationalities were deported from Kenya to Somalia and then Ethiopia, where many were detained for several months without access to consular officials, legal counsel, family members, or independent human rights and humanitarian organizations. An unknown number of people arrested by Ethiopian forces in Somalia were also directly transferred to Ethiopia. Some of the individuals arrested by Ethiopian forces in Somalia or deported from Kenya to Ethiopia reported being brutally beaten by the Ethiopian forces that took them into custody.

A US government official told Human Rights Watch that in early 2007 agents of the US Central Intelligence Agency and the Federal Bureau of Investigation questioned detainees in Addis Ababa, confirming detainee accounts. Former detainees interviewed by Human Rights Watch have consistently described US intelligence agents as operating out of a villa. Every morning, Ethiopian guards reportedly called some number of detainees out of their cells, blindfolded them, and drove them to the villa to be interrogated by US personnel. Every night the guards returned the detainees to various detention sites throughout Addis Ababa, where they were held without access to international monitors such as the International Committee of the Red Cross (ICRC), lawyers, or consular representatives, and were not allowed to contact their family members to inform them of their whereabouts.

Many of the victims of these "regional renditions" were eventually released from Ethiopian custody by mid-2007 after being brought before what seems to have been a military tribunal. As of August 2009, at least two men, including a Kenyan and a Canadian national, remain in Ethiopian detention almost two years after their deportation from Kenya. The trial on terrorism-related charges of the Canadian national, Bashir Makhtal, which began in March 2009 and resulted in his being sentenced to life imprisonment in August 2009, has been characterized as deeply flawed. The whereabouts and fate of at least 22 others rendered to Ethiopia, including Eritreans, Somalis, and Ethiopian Ogadeni and Oromo, is unknown.

Ethiopia's Anti-Terrorism Proclamation

In July 2009 the Ethiopian parliament adopted an anti-terrorism law that contains a number of provisions that violate international human rights law and the Ethiopian constitution.[3] It provides, among other worrying provisions, for the use of hearsay or "indirect evidences" in court without any limitation. Official intelligence reports would also be admissible, even if they do not disclose their source or how their information was gathered. By making intelligence reports admissible in this way, the law effectively would allow evidence obtained under torture: if the defense counsel could not ascertain the methods by which intelligence was collected, they would not be able to show that it was collected in an abusive way.

The Inadequacy of MoU Monitoring Mechanisms

The earlier agreements the UK reached with Jordan, Libya, and Lebanon represent an effort to circumvent the strict non-refoulement obligations under the Convention against Torture and the European Convention on Human Rights. In recognition of the problem, the three MoUs contain a measure that purports to act as a safeguard against abuse: the establishment of a body, nominated jointly by the two signatory governments, which can periodically visit and privately interview any person whom the receiving state takes into custody, and then report on those visits to the sending state.

The UK-Ethiopia MoU also contains such a provision, referring to "an independent body" which will "monitor the implementation of assurances given...." A letter dated December 15, 2008 from UK Ambassador Norman Ling to Ambassador Kassa Gebre-hiwot, chief commissioner of the Ethiopian Human Rights Commission (EHRC), welcomes the nomination of the EHRC as the monitoring body for the UK-Ethiopia MoU. The EHRC is a government commission mandated to promote human rights. The EHRC's commissioners are nominated and approved by the Ethiopian parliament, which is effectively dominated by the ruling party. As with much of the judiciary, the EHRC lacks independence and cannot be considered an effective independent body operating beyond government control.

Given the current political landscape in Ethiopia, and the specific concerns about the EHRC, it is totally implausible that the treatment of individuals deported to Ethiopia from the UK can be adequately monitored, especially by the EHRC.

The British government argues that monitoring greatly reduces the chances that a returned suspect will be abused. In reality, such post-return monitoring will not protect returnees from torture. Its key deficiency is the lack of confidentiality. If monitors have universal access to all detainees in a facility, and are able to speak with all detainees, each in private, a single detainee can report torture or other abuse without fear that he will be identified by the authorities. The ICRC makes universal access a condition of its monitoring for precisely that reason. Such confidentiality cannot be provided when only one detainee or small group is being monitored. The prison or detention facility authorities would know directly where the allegations of ill-treatment came from. Experience has shown that detainees are reluctant to report abuse in those circumstances for fear of reprisals for them or their families.

The Difficulties of Monitoring Abuses in Ethiopia

Ethiopia is one of the most difficult countries in sub-Saharan Africa in which to monitor and investigate human rights abuses. This is largely because the Ethiopian government rigorously restricts independent access and monitoring efforts by individuals, media, and human rights organizations seeking to investigate allegations of human rights violations, particularly in geographic areas it deems sensitive, such as the Oromia and Somali Regions. It deploys an extensive security apparatus at every administrative level throughout the country.

The Ethiopian government routinely denies access to detained individuals in federal and regional police and military custody, whether the request is made by human rights investigators, humanitarian agencies, or diplomatic officials, and even when detainees are nationals of another country who are seeking consular assistance from their governments.[4]

The Charities and Societies Proclamation, a repressive new law passed in January 2009, will make the already difficult environment even worse for organizations seeking to monitor human rights abuses.[5] Most forms of independent human rights monitoring by Ethiopian nongovernmental organizations will become impossible. The few independent Ethiopian human rights organizations active in the country will likely close down or substantially restrict their activities-which is the apparent intent of the law.

The ICRC, which has monitored conditions in federal and regional prisons in Ethiopia in the past, has been denied access to federal prisons in recent years, although it retains intermittent access to some regional prisons.[6] As a result there is no longer any comprehensive, independent international monitoring of Ethiopia's federal detention facilities, where many of the political prisoners are detained and allegedly beaten and tortured.

In conclusion, Human Rights Watch is extremely concerned that the UK-Ethiopia MoU will trigger an attempt by the UK to return individuals to a country known to have a serious record of torture and mistreatment of detainees by security forces, in violation of the UK's legal obligations under UK and international law. We strongly urge you to refrain from implementing the agreement and deporting individuals to Ethiopia, where they will face a serious risk of torture and other abuse.

Yours sincerely,

Tom Porteous
London Director

Georgette Gagnon
Africa Division Director

[1] In general, detention conditions in Ethiopia are poor, with many detainees held in overcrowded facilities for months without charge or trial, with insufficient access to legal counsel, medical treatment, and family members. These concerns are well-documented. See for example the reports of Human Rights Watch, Amnesty International, the Ethiopian Human Rights Council, and the US State Department Human Rights report on Ethiopia, which states in section 1 (c): "Prison and pretrial detention center conditions remained harsh and life threatening. Severe overcrowding was a problem.... Medical care was unreliable in federal prisons and almost nonexistent in regional prisons. In detention centers, police often physically abused detainees. Authorities generally permitted visitors but sometimes arbitrarily denied them access to detainees. In some cases, family visits to political prisoners were restricted to a few per year."

[2] See Human Rights Watch, "Why Am I Still Here?": The 2007 Horn of Africa Renditions and the Fate of Those Still Missing, ISBN: 1-56432-380-3, October 2008, http://www.hrw.org/sites/default/files/reports/eastafrica1008web.pdf.

[3] See Human Rights Watch, "An Analysis of Ethiopia's Draft Anti-Terrorism Law," June 30, 2009, http://www.hrw.org/sites/default/files/related_material/Ethiopia%20CT%20....

[4] See for example the case of Bashir Makhtal, a Canadian national of Ethiopian origin who has been detained in Ethiopia since early 2007, for months in incommunicado detention. Canadian requests to have consular access to Mr. Mahktal were refused for long periods by Ethiopian authorities. Human Rights Watch interviews with diplomatic officials, family members, and others, February 2007 to June 2009, Nairobi, Addis Ababa, and by telephone to Canada. See also Human Rights Watch, "Why Am I Still Here?": The 2007 Horn of Africa Renditions and the Fate of Those Still Missing; David McDougall, "Family of jailed Canadian pleads for Ottawa's help," The Globe and Mail, August 4, 2009; and further coverage of Mr. Makhtal's story at http://www.cbc.ca/thecurrent/bashirmaktal.html.

[5] See Human Rights Watch, "New Law Ratchets up Repression," January 8, 2009, http://www.hrw.org/en/news/2009/01/08/ethiopia-new-law-ratchets-repressi....

[6] In its 2008 annual report, the ICRC stated that "The ICRC was also unable to regain access to detainees held under federal jurisdiction, denied in stages by the authorities from 2004 onwards. As a systematic follow-up of security detainees was no longer possible, the ICRC suspended detention visits and discontinued health assistance to detention centres from March and phased out projects to upgrade prison water and sanitation infrastructure by year-end. The exceptions were northern Afar and Tigray, where delegates monitored individually the cases of detainees of Eritrean origin, as well as general conditions, in regionally run detention centres." "ICRC Annual Report 2008: Ethiopia," May 27, 2009, http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/annual-report-2008-ethiopia/$File/icrc_ar_08_ethiopia.pdf (accessed August 27, 2009).