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

Detta är en D-uppsats från Göteborgs universitet/Juridiska institutionen

Författare: Olof Hasselberg; [2010-03-04]

Nyckelord: Internationell rätt;

Sammanfattning: In December 2001, the Swedish television programme “Kalla Fakta” uncovered thestory of Ahmed Agiza and Muhammed El Zari, who after having been denied asylumin Sweden, were arrested by the police and deported in haste to Egypt. The two menwere suspected of terrorist activities and even though Egypt was well-known tomistreat political opponents in general, and alleged Islamic terrorists in particular, theSwedish government decided to have them transferred. Both Agiza and El Zari laterclaimed that they were tortured in Egypt. The disclosure resulted in a massive outcryand the Swedish government were heavily criticised by a great number of bothdomestic and international actors for having violated its international law obligationsand Agiza’s and El Zari’s human rights. Sweden, on the other hand, claimed that ithad done whatever one could possibly require to ensure that the men were treatedcorrectly, 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 ofthe globalised threat from terrorism and the violent and repressive responses towardsit; namely, how to at once respect state security and human rights. The attacks of 9/11and the “Global War on Terrorism” (the GWoT) have created an atmosphere wherethis conflict has increased to a level so that it now seems unsolvable and where theproponents of each perspective seem to have less and less understanding for thearguments of the opponent. The main argument of many governments, as well asmany others, is that human rights and democracy can only be ensured and protectedby states and that this requires that threats against the states security have to beeliminated. The human rights advocates, on the contrary, claim that fundamentalinstitutions such as democracy, the rule of law and human rights cannot be protectedby 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.

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