The UN has made clear that the State cannot rely on US guarantees that prisoners are not being flown through Shannon and tortured subsequently elsewhere, the Irish Human Rights Commission has warned.
The Government has "a positive obligation", said the IHRC, to ensure that the US are not carrying prisoners on aircraft chartered by the Central Intelligence Agency, which have landed over 50 times in the last three years.
Meanwhile, the IHRC has drawn attention to a ruling from the European Court of Human Rights in Strasbourg which makes it clear that signatory countries are under "a procedural obligation" to investigate claims that individuals had been tortured, contrary to Article 3, said the human rights body.
The UN's leading expert on torture, Prof Manfred Nowak, reported in August that "diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment," said the IHRC, in a detailed statement released yesterday.
Quoting Mr Nowak, the commission said "such assurances are sought usually from states where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture.
"Diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated.
"States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return," Mr Nowak wrote.
In a detailed statement, the human rights commission urged the Government to seek an agreement with the US to inspect aircraft suspected of carrying such prisoners.
Pointing to the law in the area, the commission said Article 1 of the United Nations' Convention Against Torture clearly defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
Furthermore, the commission pointed out that "torture, cruel, inhuman or degrading treatment is also prohibited by the provisions of the Constitution and the carrying out of an act of torture 'whether within or outside the State' is specifically prohibited by Section 2 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000. Attempting or conspiring to commit an act of torture within or outside the State, is also an offence under Section 3 of the same Act".
Diplomatic assurances from the US that "individuals will not be subjected to such treatment are not, in themselves, sufficient to fulfil a state's obligations to guard against torture or ill-treatment". The protections offered by Article 3 are "absolute", while diplomatic guarantees that cannot be enforced are useless, said the commission, which is chaired by former Fine Gael TD and senator, Maurice Manning.
The UN Committee against Torture examined the issue last year after the United Kingdom claimed that it was justified in sending prisoners to countries once it had received a guarantee that they would not be tortured.
Since then, the UN committee has demanded full details from the British on the numbers of prisoners sent abroad.
Meanwhile, Section 8 of the legislation that set up the Human Rights Commission in 2000 itself states that one of the commission's functions is "to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights".
Furthermore, Section 8 (d) of the Human Rights Commission Act "authorises the commission to make recommendations to the Government about measures to strengthen, protect and uphold human rights in the State".
The European Convention on Human Rights also imposes obligations on the State, since it requires states to ensure that "everyone within its jurisdiction has the right to be free from torture, inhuman or degrading treatment or punishment".
The convention's Article 3 forbids states from sending individuals to another state "where there are substantial grounds for believing that the person faces a real risk of ill-treatment".
