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There's no place like home: states' obligations in relation to transfers of persons

Published online by Cambridge University Press:  27 March 2009

Emanuela-Chiara Gillard
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Abstract

The article sets out states' obligations in relation to transfers of persons under international law, and revisits the key elements of the principled non-refoulement, including its application where persons are transferred from one state to another within the territory of a single state; the range of risks that give rise to application of the principle; important procedural elements; and the impact on the principle of so called diplomatic assurances.

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Type
Human Rights
Information
International Review of the Red Cross , Volume 90 , Issue 871: Human Rights , September 2008 , pp. 703 - 750
Copyright
Copyright © 2008 International Committee of the Red Cross

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References

1 Security Council Resolution 1546, 8 June 2004.

2 Most notably, Coalition Provisional Authority Memorandum Number 3 (Revised), Criminal Procedures, 27 June 2004, and Coalition Provisional Authority Order Number 99, Joint Detainee Committee, 27 June 2004. The present article does not address the compliance of these instruments with the obligations under international humanitarian law and human rights law of the states making up the multinational forces in Iraq.

3 On the Mujahedin el-Khalq see, for example, www.fas.org/irp/world/para/mek.htm (last visited 22 January 2008).

4 Federal Court of Canada, Amnesty International Canada v. Canada (National Defence), 2007 FC 1147, 5 November 2007.

5 See, e.g., the case of the seven Russian nationals repatriated from Guantánamo in 2004 outlined in Human Rights Watch, The ‘Stamp of Guantánamo’ – The Story of Seven Men Betrayed by Russia's Diplomatic Assurances to the United States, March 2007.

6 Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan Regulating the Provision of Undertakings in Respect of Specified Persons Prior to Deportation, signed August 10, 2005, http://www.fco.gov.uk/resources/en/pdf/jordan-mou (last accessed 3 January 2009); Memorandum of Understanding between the General People's Committee for Foreign Liaison and International Cooperation of the Great Socialist People's Libyan Arab Jamahiriya and the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland Concerning the Provision of Assurances in Respect of Persons Subject to Deportation, signed October 18, 2005, http://www.fco.gov.uk/resources/en/pdf/libya-mou (last accessed 3 January 2009); and Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Lebanese Republic Concerning the Provision of Assurances in Respect of Persons Subject to Deportation, signed December 23, 2005, http://www.fco.gov.uk/resources/en/pdf/lebanon-mou (last accessed 3 January 2009).

7 See, e.g., Droege, Cordula, ‘The interplay between international humanitarian law and human rights in situations of armed conflict’, Israel Law Review, Vol. 40 (2) (2007), p. 310CrossRefGoogle Scholar, and the references therein.

8 The Human Rights Committee confirmed the extraterritorial application of the International Covenant on Civil and Political Rights in its General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para. 10, as well as in its Concluding Observations on the United States' second and third periodic reports in 2006. Human Rights Committee, Concluding Observations: United States of America, 18 December 2006, UN Doc. CCPR/C/USA/CO/3/Rev.1, para. 10. For the United States' arguments see, inter alia, Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Third periodic reports of States parties due in 2003, United States of America, 28 November 2005, UN Doc. CCPR/C/USA/3, paras. 129–30 and Annex I thereto. See also Committee against Torture General Comment No. 2, Implementation of article 2 by States Parties, 23 November 2007, UN Doc. CAT/C/GC/2/CRP.1/Rev.4, paras. 7 and 16, on the extra-territorial application of the Convention against Torture. For a comprehensive discussion of the extra-territorial application of human rights law, see Frans Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, Intersentia, 2004. See also recent decisions of the International Court of Justice on this issue in the Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, pp.178–81, paras. 107–113; and in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 3 February 2006, paras. 215–20; cf. www.icj-cij.org/docket/index.php?p1=3&p2=1&code=co&case=116&k=51 (last visited 16 October 2008).

9 This is, for example, the view recently expressed by the Committee against Torture in its review of the United Kingdom and United States' periodic reports. Committee against Torture, Conclusions and Recommendations: United Kingdom of Great Britain and Northern Ireland – Dependent Territories, UN Doc. CAT/C/CR/33/3, 10 December 2004, para. 4(b); and Committee against Torture, Conclusions and Recommendations: United States of America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, para. 15 and 20. For the United States' arguments, see United States' Response to the Committee against Torture's List of issues to be considered during the examination of the second periodic report of the United States of America, at pp. 33–7.

10 Tim Golden, ‘Chinese leave Guantánamo for Albanian limbo’, New York Times, 10 June 2007. See also the endeavours of the United States in January 2009 in respect of other inmates Meraiah Foley and Mark McDonald, ‘Australia and Britain signal reluctance to take Guantánamo prisoners’, International Herald Tribune, 2 January 2009.

11 For a comprehensive discussion of non-refoulement as a principle of refugee law, see Elihu Lauterpacht and Daniel Bethlehem, ‘The scope and content of the principle of non-refoulement: opinion’, in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, Cambridge University Press, Cambridge, 2003.

12 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), Article II(3). The principle also appears in Article III(1) of the non-binding 1966 Principles Concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee in 1966 and Section III (5) of the 1984 Cartagena Declaration on Refugees embodying the Conclusions of the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama.

13 See, e.g., ECtHR, Saadi v. Italy, Application No. 37201/06, Judgment of 28 February 2008, para. 126.

14 See Human Rights Committee General Comment No. 31, above note 7, para. 12. The General Comment reflects the position consistently adopted in the Committee's jurisprudence. See, e.g., its views in Joseph Kindler v. Canada, Communication No. 470/1991, Views of the Human Rights Committee of 18 November 1993, para. 6.2.

15 In the words of Theo van Boven, the former Special Rapporteur of the Commission on Human Rights on Torture, ‘[t]he principle of non-refoulement is an inherent part of the overall absolute and imperative nature of the prohibition of torture and other forms of ill-treatment’. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/59/324, 1 September 2004, para. 28.

16 Human Rights Committee, General Comment No. 20, Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, UN Doc. HRI/GEN/1/Rev.1, 28 July 1994, p. 31, para. 9. The Human Rights Committee has consistently adopted the same position in its jurisprudence. See, e.g., Chitat Ng v. Canada, Communication No. 469/1991, Views of the Human Rights Committee of 7 January 1994.

17 Human Rights Committee General Comment No. 31, above note 8, para. 12.

18 United States Response to the list of issues to be taken up in connection with the consideration of the second and third periodic reports of the United States of America, undated, pp. 16–18, available at www.ohchr.org/english/bodies/hrc/docs/AdvanceDocs/USA-writtenreplies.pdf (last visited 15 October 2008).

19 Human Rights Committee, Concluding Observations: United States of America, above note 8, para. 16.

20 The Court first addressed the issue in Soering v. The United Kingdom, 7 July 1989, Series A, No. 69, para. 91. This approach has been upheld in a subsequent long line of jurisprudence. See, inter alia, ECtHR, Cruz Varas and Others v. Sweden, 20 March 1991, Series A, No. 201, p. 28, paras. 69–70 and ECtHR, Vilvarajah and Others v. The United Kingdom, 30 October 1991, Series A, No. 215, p. 34, paras. 102–103.

21 On the relationship between Article 12 and Article 118 of the Third Geneva Convention, which requires detaining powers to release and repatriate prisoners of war without delay after the cessation of hostilities, see the Commentary to the Convention. This explains that prisoners of war have an inalienable right to be repatriated, and that ‘no exception may be made to this rule unless there are serious reasons for fearing that a prisoner of war who is himself opposed to being repatriated may, after his repatriation, be the subject of unjust measures affecting his life or liberty, especially on grounds of race, social class, religion or political views, and that consequently repatriation would be contrary to the general principles of international law for the protection of the human being. Each case must be examined individually’. Jean Pictet (ed.), Commentary III Geneva Convention relative to the Treatment of Prisoners of War (1960), p. 546.

22 See also Article 13 of the 1985 Inter-American Convention to Prevent and Punish Torture, and Committee against Torture, General Comment No. 1, Implementation of article 3 of the Convention in the context of article 22, 21 November 1997, UN Doc. A/53/44, Annex IX, para. 2.

23 Article 4(5) of the Convention precludes extradition when ‘it can be inferred that persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons’. See also Article 3(2) of the 1957 European Convention on Extradition.

24 These conventions operate by criminalizing certain activities and requiring states parties to prosecute or extradite persons suspected of these crimes. Recognizing the risk that persons whose extradition is sought may face ill-treatment or persecution, the conventions expressly foresee the non-application of the obligation to extradite in these cases. See, e.g., Article 9(1) of the 1979 UN Convention against the Taking of Hostages.With regard to non-refoulement under refugee law and extradition, in 1980 UNHCR's Executive Committee adopted a Conclusion which, inter alia, called upon states to ensure that the principle of non-refoulement was duly taken into account in treaties relating to extradition and, as appropriate, in national legislation on the subject, and expressed the hope that due regard would be paid to the principle of non-refoulement in the application of existing treaties relating to extradition. UNHCR Executive Committee Conclusion, No. 17 (XXXI), 1980, Problems of extradition affecting refugees, paras. (d) and (e).

25 For European Council Member states, the principle that a state must not by its actions put a person at risk of torture or other forms of ill-treatment has been reaffirmed in a very expansive manner in a European Council Directive on assistance in cases of transit for the purposes of removal of persons by air. This Directive provides that transit by air should neither be requested nor granted if the person concerned faces the threat of torture or other forms of ill-treatment, persecution or the death penalty in the country of destination or in a country of transit. The Directive thus imputes non-refoulement obligations on the state through whose airports persons are transiting, even though the local authorities are only exercising limited and temporary control over the persons being removed and are not involved in the decisions to remove them. Council Directive 2003/110/EU of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, OJ L, 321, 6.12.2003, p. 26.

26 See, e.g., the decision of the European Court of Human Rights in T.I. v. The United Kingdom, Application No. 43844/98, Decision as to Admissibility of 7 March 2000, p. 15. See also Committee against Torture General Comment No. 1, which, inter alia, states that ‘The Committee is of the view that the phrase “another State” in article 3 [of the Convention against Torture] refers to the state to which the individual concerned is being expelled, returned or extradited, as well as to any state to which the author may subsequently be expelled, returned or extradited’. UN Committee against Torture, General Comment No. 1, above note 22, para. 2. See also UNHCR EXCOM Conclusion No. 58 (XL), 1989, Problem of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection, para. f(i).

27 For example, Article 33(1) of the 1951 Refugee Convention precludes returning ‘a refugee in any manner whatsoever’. In respect of the prohibition under this instrument, Lauterpacht and Bethlehem point out that

… it must be noted that the word used is ‘territories’ as opposed to ‘countries’ or ‘States’. The implication of this is that the legal status of the place to which the individual may be sent is not material. The relevant issue will be whether it is a place where the person concerned will be at risk. This also has wider significance as it suggests that the principle of non-refoulement will apply also in circumstances in which the refugee or asylum seeker is within their country of origin but is nevertheless under the protection of another Contracting State. This may arise, for example, in circumstances in which a refugee or asylum seeker takes refuge in the diplomatic mission of another state or comes under the protection of the armed forces of another State engaged in a peacekeeping or other role in the country of origin. In principle, in such circumstances, the protecting State will be subject to the prohibition on non-refoulement to territory where the person concerned would be at risk. (Lauterpacht and Bethlehem, above note 11, at para. 114 (emphasis added).

28 See, e.g., the European Court of Human Rights in Chahal, which spoke of the prohibition of transfers to ‘another state’. ECtHR, Chahal v. The United Kingdom, Application No. 22414/93, Judgment of 15 November 1996, para. 80. Similarly, in its resolution on torture and other cruel, inhuman or degrading treatment or punishment of 2005, the Commission of Human Rights urged ‘States not to expel, return (refouler), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture’. UN Commission on Human Rights resolution 2005/39, 19 April 2005, para. 5 (emphasis added). Similar language, based on Article 3(1) of the Convention against Torture, was used in the resolutions in previous years.

29 Committee against Torture, Thirty-third session, List of Issues, UN Doc. CAT/C/33/L/GBR, 15–26 November 2004, para. 25.

30 Response by the United Kingdom to Issues raised by the United Nations Committee against Torture for Discussion at the Committee's 33rd session in November 2004, para. 222, on file with author.

31 Committee against Torture, Conclusions and Recommendations: United Kingdom of Great Britain and Northern Ireland – Dependent Territories, above note 8, paras. 4(b) and 5(e). In June 2006 the United Kingdom submitted comments on the Committee's conclusions and recommendations, which, inter alia, addressed the application of the Convention to transfers of persons to the local authorities. While the United Kingdom had rejected the application of Articles 2 and 3 of the Convention in previous exchanges with the Committee, on grounds that it lacked jurisdiction in Iraq and Afghanistan, in this submission the United Kingdom made the additional argument that in these two contexts the persons transferred did not move from the territory of one state to another. Comments by the Government of the United Kingdom of Great Britain and Northern Ireland to the conclusions and recommendations of the Committee against Torture, UN Doc. CAT/C/GBR/CO/4/add.1, 8 June 2006, paras. 14–17.

32 United States Response to the list of issues to be taken up in connection with the consideration of the second and third periodic reports of the United States of America, undated, pp. 16–18, available at www.ohchr.org/english/bodies/hrc/docs/AdvanceDocs/USA-writtenreplies.pdf (last visited 16 October 2008).

33 United States Response to the Committee against Torture's List of issues to be considered during the examination of the second periodic report of the United States of America, above note 9, pp. 33–7.

34 UN Sub-Commission on the Promotion and Protection of Human Rights, resolution 2005/12, Transfer of persons, 12 August 2005, adopted by a roll-call vote of 21 to 1, with 2 abstentions. Neither the contrary vote nor the abstentions related to this aspect of the resolution.

35 Response by the United Kingdom to Issues raised by the United Nations Committee against Torture for Discussion at the Committee's 33rd session in November 2004, above note 30, para. 223. See also Committee against Torture, Third-third session, summary record of the 624th session, 17 November 2004, UN Doc. CAT/C/SR/SR.624, 24 November 2004, para. 26.

36 Amnesty International, Afghanistan – Detainees transferred to torture: ISAF Complicity?, November 2007, ASA 11/011/2007.

37 See, e.g., Atle Grahl-Madsen, Commentary on the Refugee Convention 1951, UNHCR Division of International Protection, Geneva, 1997, pp. 231–2. The 1969 OAU Convention adopts a wider approach to the types of risks that could give rise to refoulement, reflective of its wider definition of refugee. Under this instrument, the prohibition of refoulement extends to persons whose ‘life, physical integrity or liberty’ would be at risk because of persecution or because of external aggression, occupation, foreign domination or events seriously disturbing public order. OAU Convention, above note 12, Article 2(3).

38 In its General Comment No. 31, the Human Rights Committee spoke of ‘a real risk of irreparable harm such as that contemplated by articles 6 [right to life] and 7 [prohibition of torture or cruel, inhuman or degrading treatment or punishment]’. Human Rights Committee, General Comment No. 31, above note 8, para. 12 (emphasis added).

39 In its jurisprudence the Committee against Torture has consistently denied applications where the risk in the receiving state was of ill-treatment short of torture. See, e.g., T.M. v. Sweden, UN Doc. CAT/C/31/D/228/2003, 2 December 2003; and M. V. v. The Netherlands, UN Doc. CAT/C/30/D/201/2002, 13 May 2003. Attempts in 2005 to expand the reference to the scope of the protection from refoulement under the Convention against Torture to cover other forms of ill-treatment in the resolutions on torture of the Commission on Human Rights and the Third Committee of the United Nations General Assembly were resisted by the United States. Annotated successive draft resolutions for 2005 on file with author.

40 The need for a nexus between the ill-treatment and a state was specifically addressed by the Committee against Torture in its General Comment No. 1 where, inter alia, it emphasized that ‘Pursuant to article 1, the criterion, mentioned in article 3, paragraph 2, of “a consistent pattern of gross, flagrant or mass violations of human rights” refers only to violations by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. Committee against Torture, General Comment No. 1, above note 22, para. 3.

41 Committee against Torture, G.R.B. v. Sweden, Communication No. 83/1997, Views of the Committee against Torture of 15 May 1998, UN Doc. CAT/C/20/D/83/1997, 15 May 1998.

42 Committee against Torture, Sadiq Shek Elmi v. Australia, Communication No. 120/1998, Views of the Committee against Torture of 14 May 1999, UN Doc. CAT/C/22/D/120/1998, 25 May 1999.

43 Ibid., para. 6.5. The exceptional nature of this decision was confirmed by a virtually identical case that came before the Committee three years later. The Committee noted that in the intervening years the situation in Somalia had changed significantly. Somalia now possessed a state authority in the form of the Transitional National Government that had relations with the international community in its capacity as central government, although doubts existed as to the reach of its territorial authority and its permanence. In view of the existence of this authority, the Committee did not consider that the case fell within the exceptional situation in Elmi v. Australia, and took the view that the acts of the non-state entities operating in Somalia fell outside the scope of Article 3 of the Convention. Committee against Torture, H.M.H.I. v. Australia, Communication No. 177/2001, Views of the Committee against Torture of 1 May 2001, UN Doc. CAT/C/28/D/177/2001, 1 May 2001, para. 6.4.

44 Human Rights Committee, General Comment No. 20, above note 16, para. 2.

45 Human Rights Committee, General Comment No. 31, above note 8, para. 8.

46 ECtHR, H.L.R. v. France, Judgment of 22 April 1997, para. 40. This position was reiterated, for example, in T.I. v. The United Kingdom, although in this case too the applicant failed on the merits. ECtHR, T.I. v. The United Kingdom, Decision as to Admissibility of 7 March 2000, p. 14. The conclusion that a threat emanating from a non-state actor may give rise to a violation of Article 3 of the Convention appears to have been so uncontroversial that in the case of Ahmed v. Austria which, like the above-mentioned cases before the Human Rights Committee, related to an expulsion to Somalia during the late 1990s, the Court did not even address this dimension of the case. ECtHR, Ahmed v. Austria, Judgment of 27 November 1996. It was only considered at an earlier stage of the proceedings by the Commission, which upheld the applicant's claim of violation of Article 3 on the ground that it was sufficient that those who held substantial power within a state, even though they were not the government, threaten the life and security of applicant. Ahmed v. Austria, Application No.25964/94, Report of the Commission of 5 July 1995, p. 11. See also ECtHR, Salah Sheekh v. The Netherlands, Judgment of 11 January 2007, para. 97. The Court adopted an even more extensive approach in the case of D. v. The United Kingdom, where the applicant, an AIDS sufferer whose illness had reached a critical stage and who was about to be deported to his home state of St Kitts and Nevis, claimed that, in view of the quality and availability of medical treatment in St Kitts, his deportation would amount to a violation of Article 3 of the Convention.The Court noted that the principle of non-refoulement was ordinarily applied when the risk emanated from intentionally inflicted acts of the public authorities in the receiving country or from those of non-state bodies in that country when the authorities there were unable to afford appropriate protection. However, given the fundamental importance of Article 3 in the Convention system, the Court considered that it should reserve to itself sufficient flexibility to address the application of the article where the source of the risk in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, did not in themselves infringe the standards of that article. To limit the application of Article 3 otherwise would, in the Court's view, have undermined the absolute character of its protection. On this basis, the Court found that the implementation of the decision to deport the applicant to St Kitts would have amounted to inhuman treatment in violation of Article 3 of the Convention. ECtHR, D. v. The United Kingdom, Judgment of 2 May 1997, Application No. 30240/96, paras. 49–53.

47 For example, in the Soering case, the European Court of Human Rights did not base its decision on the risk of the imposition of the death penalty per se but rather on the fact that the ‘death row phenomenon’ amounted to cruel, inhuman or degrading treatment. ECtHR, Soering v. The United Kingdom, above note 19, para. 111. Similarly, in the Ng decision, the Human Rights Committee found that the manner in which the applicant would be executed (by gas asphyxiation) constituted cruel and inhuman treatment, in violation of Article 7 of the Covenant. Chitat Ng v. Canada, above note 16, para. 16.4.

48 ECtHR, Öcalan v. Turkey, Application No. 46221/99, Judgment of 12 March 2003, para. 213, confirmed by the Judgment of the Grand Chamber of 5 May 2005. The Court reiterated this position in the case of Bader and others v. Sweden, Application No. 13284/04, Judgment of 8 November 2005, para. 47.

49 See, e.g., the views of the Human Rights Committee in Glenford Campbell v. Jamaica, Communication No. 248/1997, Views of the Human Rights Committee of 30 March 1992; and Eustace Henry and Everald Douglas v. Jamaica, Communication No. 571/1994, Views of the Human Rights Committee of 25 July 1996.

50 Human Rights Committee, General Comment No. 31, above note 8, para. 12 (emphasis added).

51 Human Rights Committee, Roger Judge v. Canada, Communication No. 829/1998, Views of the Human Rights Committee of 20 October 2003, para. 10.4.

52 Optional Protocol No. 6 abolishes the death penalty but allows states parties to make provision for it in respect of acts committed in time of war. Optional Protocol No. 13 abolishes the death penalty at all times.

53 ECtHR, S.R. v. Sweden, Application No. 62806/00, Judgment of 23 April 2003. Similarly, although the question of the effect of Optional Protocol 13 was raised by the respondent state in Bader v. Sweden, the Court decided the application on other grounds and, consequently, did not address that issue. Bader and others v. Sweden, above note 48, para. 49. Additionally, the legal obligations or political commitments of a number of states, notably, but not exclusively, the members of the European Union and/or the Council of Europe preclude them from transferring persons to the possible imposition or execution of the death penalty. These include, for example, the aforementioned 1957 European Convention on Extradition; the EU Qualification Directive; the EU Directive on assistance in cases of transit for the purposes of removal by air; and the European Arrest Warrant (Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 2002/584/JHA, OJ L190, 18.7.2002, pp. 1–20). National legislation often imposes additional limitations. See, e.g., the legislation referred to in Ruma Mandal, Protection Mechanisms Outside of the 1951 Convention (‘Complementary Protection’), UNHCR Legal and Protection Policy Research Series, PPLA/2005/2, June 2005.

54 International Convention for the Protection of All Persons from Enforced Disappearance, Articles 2 and 16.

55 As long ago as 1989, in the Soering case, the European Court of Human Rights had noted that ‘[it did] not exclude that an issue might exceptionally be raised under Article 6 [right to fair trial] by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of fair trial in the requesting country’. Soering v. The United Kingdom, above note 20, para. 113. To date, however, the Court has not had to decide a case relating to transfers to alleged flagrant denial of fair trial that did not involve the imposition of the death penalty.

56 UN Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2005/12, above note 34, para. 3.

57 Ibid., para. 8.

58 Committee on the Rights of the Child, General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin, UN Doc. CRC/GC/2005/6, 3 June 2005, p. 6.

59 Ibid.

60 Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/4/40, 9 January 2007, para. 49.

61 1998 Statute of the International Criminal Court, Article 7(2)g.

62 Of particular relevance are elements 1–3. Preparatory Commission for the International Criminal Court, Addendum, Part II: Finalized draft text of the Elements of Crimes, Article 7 (1) (h), Crime against humanity of persecution, UN Doc. PCNICC/2000/1/Add.2, 2 November 2000.

63 UNHCR, UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 Re-edited, January 1992, paras. 51–53.

64 Article II(3) of the OAU Convention adopts the same standard, prohibiting the transfer of a refugee if his or her life, physical integrity or liberty ‘would be threatened’.

65 Upon ratification of the Convention against Torture, the United States made the following interpretative declaration of Article 3: ‘… the United States understands the phrase, “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” as used in article 3 of the Convention, to mean “if it is more likely than not that he would be tortured”’ (emphasis added). The reasoning underlying this interpretation and its meaning are discussed at pp. 37–8 of the United States’ Response to the Committee against Torture's List of issues to be considered during the examination of the second periodic report of the United States of America, above note 9.

66 Committee against Torture, General Comment No. 1, above note 22, para. 6.

67 Human Rights Committee, General Comment No. 20, above note 16, para. 9.

68 Human Rights Committee, General Comment No. 31, above note 8, para. 12.

69 See, e.g., Chitat Ng v. Canada, above note 16, para. 14.1.

70 Soering v. The United Kingdom, above note 20, para. 91.

71 See, e.g., ECtHR, Vilvarajah and Others v. The United Kingdom, above note 20, para. 115; ECtHR, Chahal v. The United Kingdom, above note 28, paras. 74 and 80; and ECtHR T.I. v. The United Kingdom, Application No. 43844/98, Judgment of 7 March 2000, p. 15.

72 According to Lauterpacht and Bethlehem, ‘[i]n practical terms, however, it is not clear whether the differences in the various formulations will be material, particularly as the Human Right Committee, the European Court of Human Rights, and the Committee against Torture … have all indicated in one form or another that, whenever an issue of refoulement arises, the circumstances surrounding the case will be subjected to rigorous scrutiny’ (Lauterpacht and Bethlehem, above note 11, para. 247).

73 Ibid., para. 249.

74 Article 1A of the Convention defines a refugee as ‘any person who, owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country’. It is not necessary for a person to have been formally recognized as a refugee to benefit from the protection of the Convention. It is sufficient for him or her to meet the criteria of the definition. See, e.g., UNHCR EXCOM Conclusion No. 6 (XXVIII) 1977, Non-refoulement. Additionally, the lawfulness of a person's presence in the concerned state does not affect the application of the principle of non-refoulement. See, e.g., Convention relating to the Status of Refugees, 28 July 1951, Article 31.

75 This provision excludes from the protection of the Convention:

any person with respect to whom there are serious reasons for considering that:

  • —

    — he has committed a crime against peace, a war crime, or a crime against humanity …

  • —

    — he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

  • —

    — he has been guilty of acts contrary to the purposes and principles of the United Nations.

The OAU Refugee Convention is broader in scope than the 1951 Convention. Although it, too, contains exclusion clauses, Article II(3) provides that ‘no person’ may be refouled, presumably including those who fall within with exclusion clauses.

76 See, e.g., ‘Factum of the Intervenor, UNHCR, Suresh v. Minister of Citizenship and Immigration; the Attorney-General of Canada, SCC No. 27790’, International Journal of Refugee Law (2002), pp. 149 ff.

77 For example, by means of ‘subsidiary protection’ in the European Union pursuant to Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, [2004] OJ L304/12 (‘the Qualification Directive’). For a recent discussion of the grounds on which complementary protection may be claimed and the consequent rights see Jane McAdam, ‘Complementary protection and beyond: how states deal with human rights protection’, New Issues in Refugee Research, UNHCR Working Paper No. 118, August 2005. See also Mandal, above note 53.

78 In recognition of the vulnerable situation in which such persons often find themselves, minimum standards of treatment for persons benefiting from complementary forms of protection were discussed by the Standing Committee of UNHCR's Executive Committee in 2000: Complementary Forms of Protection: their Nature and Relationship to the International Refugee Protection Regime, UN Doc. EC/50/SC/CRP.18, 9 June 2000.

79 Convention relating to the Status of Refugees (1951), Article 33(2). Later refugee law instruments, such as the OAU Refugee Convention and the Cartagena Declaration, do not contain any exceptions to the principle of non-refoulement.

80 For a discussion of exclusion, see UNHCR, Background Note on the Application of the Exclusion: Article 1F of the 1951 Convention relating to the Status of Refugees, Protection Policy and Legal Advice Section, Department of International Protection, HCR/GIP/03/05, 4 September 2003.

81 See Lauterpacht and Bethlehem, above note 11, at para. 159.

82 Article 2(2) of the Convention Against Torture provides that ‘[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’. See also Human Rights Committee General Comment No. 20, above note 16, at para. 3, and General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 4 November 1994, UN Doc. CCPR/C/21/rev.1/add.6.

83 Human Rights Committee, Concluding Observations: Canada, 2 November 2005, UN Doc. CCPR/C/CAN/CO/5, para. 15. The same Supreme Court decision also attracted strong criticism from the Committee against Torture: Committee against Torture, Concluding Observations: Canada, UN Doc. CAT/C/CR/34/CAN, 7 July 2005, para. 4(a).

84 Saadi v. Italy, above note 13, para. 127. The case before the European Court of Chahal v. The United Kingdom also related to the deportation of a person for alleged involvement in terrorist activities. Emphasizing that it was aware of the difficulties faced by states in protecting themselves from terrorist violence the European Court of Human Rights nonetheless held that:

even in these circumstances the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 … Article 3 … makes no provision for exceptions and no derogation from it is permissible under Article 15 … even in the event of a public emergency threatening the life of the nation …

The prohibition provided by Article 3 … against ill-treatment is equally absolute in expulsion cases. Thus, whatever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 … if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion … In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. (Chahal v. The United Kingdom, above note 28, paras. 79–80)

85 Saadi v. Italy, above note 13, para. 138.

86 Ibid., para. 140.

87 The absolute nature of the principle is forcefully affirmed in Jean Pictet (ed.), Commentary IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (1958), p. 269.

88 On this last point see, for example, Lauterpacht and Bethlehem, above note 11, para. 159.

89 General guidance on refugee status determination procedures and standards can be found in UNHCR, Refugee Protection: A Guide to International Refugee Law, UNHCR Handbook for Parliamentarians, No.2, 2001, and in UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, above note 63.

90 See, e.g., Mandal, above note 53, and McAdam, above note 77.

91 Convention relating to the Status of Refugees (1951), Article 32(2).

92 Human Rights Committee General Comment No. 15, The position of aliens under the Covenant, 11 April 1986, para. 10. The Human Rights Committee also pointed out that this provision applies to all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise. Ibid., para. 9.

93 Chahal v. The United Kingdom, above note 28, paras. 151–152. Applying this test to the facts of the case before it, the Court noted that neither the advisory panel of the court of appeal nor the courts could review the Home Secretary's decision to deport the applicant. Their role was limited to satisfying themselves that the former had balanced the risk to the applicant against the danger he posed to national security. In view of this, the Court concluded that the courts could not be considered as providing effective remedies as required by Article 13 of the Convention. Ibid., para. 153.

94 Ibid., para. 154.

95 Committee against Torture, Josu Arkauz Arana v. France, Communication No. 63/1997, Views of the Committee against Torture of 16 December 1996, para. 11(5). The Committee against Torture had already expressed its concern at the practice of the police to hand over individuals to their counterparts in another country when it considered France's second periodic report pursuant to Article 19 of the Convention. Report of the Committee against Torture, UN Doc. A/53/44, 16 September 1998, para. 143.

96 Committee against Torture, Ahmed Hussein Mustafa Kamil Agiza v. Sweden, Communication No. 233/2003, Views of the Committee against Torture of 20 May 2005, para. 13.7 (emphasis added).

97 In its Conclusions and Observations on the United States' second periodic report the Committee simply stated that ‘the State party should always ensure that suspects have the possibility to challenge decisions of refoulement’. Committee against Torture, Conclusions and Recommendations: United States of America, above note 9, para. 20.

98 Human Rights Committee, Mansour Ahani v. Canada, Communication No. 1051/2002, Views of the Human Rights Committee of 15 June 2004, paras. 10.6–10.8.

99 Inter-American Commission on Human Rights, Extension of Precautionary Measures (N. 259) regarding Detainees in Guantánamo Bay, Cuba, decision of 28 October 2005, available at www.asil.org/pdfs/ilibmeasures051115.pdf (last visited 16 October 2008).See also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (2002), para. 394.

100 Ibid., p.9. To discharge this obligation the Commission requested the United States to ‘take the measures necessary to ensure that detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantánamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred and that diplomatic assurances are not used to circumvent the State's non-refoulement obligation’. Ibid., p. 10. The Commission returned to this issue in its 2006 resolution on Guantánamo, where, inter alia, it urged the United States to ensure that persons who may face a risk of torture or other forms of ill-treatment if transferred from Guantánamo were ‘provided an adequate, individualised examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker’. Inter-American Commission on Human Rights, Resolution No. 2/06 on Guantánamo Bay Precautionary Measures of 28 July 2006, para. 4.

101 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/59/324, 1 September 2004, para. 29.

102 Recommendation of the Commissioner for Human Rights concerning The Rights Of Aliens Wishing To Enter A Council Of Europe Member State And The Enforcement Of Expulsion Orders, CommDH/Rec(2001)1, 19 September 2001, para. 11.

103 After reaffirming states' obligation not to expel an individual where there are substantial grounds to believe that she or he will be subject to a real risk of torture or inhuman or degrading treatment or punishment, the specialists emphasized that the assessment of the existence of a risk had to be carried out on a case-by-case basis and that sending states should not rely upon lists of ‘safe’ or ‘unsafe’ states. Council of Europe, Steering Committee for Human Rights (CDDH), Group of Specialists in Human Rights and the Fight against Terrorism (DH-S-TER), Meeting Report, 1st Meeting, Strasbourg, DH-S-TER(2005)018, 7–9 December 2005, and Meeting Report, 2nd Meeting, Strasbourg, DH-S-TER(2006)005, 29–31 March 2006.

104 The President, inter alia, emphasized the need for any intended deportation to be open to challenge before an independent authority, and for such proceedings to have suspensive effect. Letter sent by the President of the Committee for the Prevention of Torture to the United Kingdom authorities concerning a Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan reached on 10 August 2005 regulating the provision of undertakings in respect of specified persons prior to deportations, 21 October 2005, Appendix to the Report to the United Kingdom Government on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 20 to 25 November 2005, 10 August 2006, CPT/Inf (2006) 28. The Committee for the Prevention of Torture also addressed the procedural dimension in its 15 report on its activities where it stated that ‘[i]t should also be emphasized that prior to return, any deportation procedure involving diplomatic assurances must be open to challenge before an independent authority, and any such challenge must have a suspensive effect on the carrying out of the deportation. This is the only way of ensuring rigorous and timely scrutiny of the safety of the arrangements envisaged in a given case’. 15th General Report on the CPT's Activities, covering the period 1 August 2004 to 31 July 2005, Strasbourg, 22 September 2005, para. 41.

105 Supreme Court of Canada, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1. The Court based its reasoning on Section 7 of the Canadian Charter of Rights and Freedoms, which stipulates that ‘[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’. These ‘principles of fundamental justice’ reflect minimum procedural safeguards under international human rights law.

106 Ibid., paras. 121–123.

107 See, e.g., the decision of the European Court of Human Rights in Jabari v. Turkey where the Court found that a refugee status determination procedure that did not have suspensive effect on the deportation and which did not permit a review of the merits of an application violated Article 13 of the Convention (right to a remedy). ECtHR, Jabari v. Turkey, Final judgment of 11 October 2000.

108 The right to appeal a negative refugee status determination decision is well-established. See, e.g., EXCOM Conclusion No. 8 (XXVIII), 1977, Determination of Refugee Status, para. e. There is, however, far less international practice supporting a similar right to appeal a transfer decision on the basis of non-refoulement as a principle of human rights law. For the practice of selected states at the national level, see Mandal, above note 53.

109 Committee against Torture, General Comment No. 1, above note 22, para. 5–8.

110 Permanent Court of International Justice, Factory at Chorzow (Claim for Indemnity) case (Germany v. Poland) (Merits), PCIJ (ser. A) No. 17, 1928, p. 29. See also Article 1 of the Articles on the Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001 (‘ILC Articles on State Responsibility’), UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001.

111 See ILC Articles on State Responsibility, Articles 31–34.

112 See, e.g., Chahal v. The United Kingdom, above note 28, para. 107.

113 See, e.g., ECtHR, Shamayev and 12 others v. Georgia and Russia, Application No. 36378/02, Judgment of 12 April 2005, where the European Court of Human Rights awarded financial compensation to those claimants who had been transferred in violation of Article 3 of the Convention. This focus on compensation could partly be due to the nature of reparations that these bodies are authorized to award. For example, under Article 50 of the European Convention on Human Rights, the European Court can only award ‘just satisfaction’, which it has consistently interpreted as being limited to compensation. The powers of the Human Rights Committee are even more limited: Article 5(4) of the First Optional Protocol to the International Covenant on Civil and Political Rights only authorizes it to forward its views as to the existence of a violation to the claimant and State Party concerned.

114 Chitat Ng v. Canada, above note 16, para. 18. See also Roger Judge v. Canada, another case in which the claimant had been extradited in breach of the Covenant to proceedings that could lead to the imposition of the death penalty in the United States, where the Human Rights Committee held that an appropriate remedy for the violation would include the making of representations as are possible to prevent that carrying out of the death penalty. Roger Judge v. Canada, above note 51, para. 12.

115 Mansour Ahani v. Canada, above note 98, para. 12.

116 Human Rights Committee, Concluding Observations: United States of America, above note 8, para. 16.

117 Committee against Torture, Mafhoud Brada v. France, Communication No. 195/2002, Views of the Committee against Torture of 17 May 2005, UN Doc. CAT/C/34/D/195/2002, 24 May 2005, para. 15.

118 This provision of the Third Geneva Convention is mirrored in Article 45(3) of the Fourth Geneva Convention, which offers the same protection to aliens in the territory of a state party to an international armed conflict.

119 Pictet, above note 20. With regard to the equivalent provision in the Fourth Geneva Convention, according to the Commentary, violations of Articles 27, 28 and 30 to 34 of the Fourth Geneva Convention would give rise to an obligation upon the transferring state to take remedial measures. Additionally, if the persons concerned were deprived of their liberty, specific reference is made to the provisions relating to internment and, in particular, those relating to civil capacity, maintenance, food, clothing hygiene and medical attention, religious and intellectual activities, correspondence and relief. Pictet, above note 87, pp. 268–9.

120 Ibid., p. 139. By way of example, the Commentary refers to an instance in August 1945 – a time before Article 12 of the Third Geneva Convention had been adopted – when the ICRC drew the attention of the United States to the difficult situation of German prisoners of war whom the United States had transferred to the French authorities, because of the general shortage of foodstuffs in France. Following this intervention, the United States placed large quantities of foodstuffs and clothing at the disposal of the ICRC for distribution to prisoner-of-war camps in France.

121 Ibid.

122 For critical reviews of transfers effected by states in reliance on such assurances see, e.g., Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard against Torture, April 2004; Human Rights Watch, Still at Risk, Diplomatic Assurances No Safeguard Against Torture, April 2005; Center for Human Rights and Global Justice, NYU Law, Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’, 2004; Centre for Human Rights and Global Justice, NYU Law, Beyond Guantánamo: Transfers to Torture One Year After Rasul v. Bush, January 2005; and Amnesty International, Afghanistan – Detainees transferred to torture: ISAF Complicity?, November 2007, ASA 11/011/2007; and Human Rights Watch, Not the Way Forward: British Policy on Diplomatic Assurances, October 2008. For the other side of the argument see, for example, Kate Jones, ‘Deportations with Assurances: Addressing Key Criticisms’, International and Comparative Law Quarterly, Vol 57 (2008), 183 and Ashley Deeks, ‘Promises Not to Torture: Diplomatic Assurances in U.S. Courts’, ASIL Discussion Paper Series, December 2008.

123 Human rights supervisory bodies have focused on assurances relating to ill-treatment. Interestingly, in its report of 2007 the Working Group on Arbitrary Detention addressed the question of assurances in relation to the lawfulness of detention and fair trial, including the practice of what it referred to as ‘reverse diplomatic assurances’: undertakings by the receiving state that the transferred person will be deprived of his/her liberty even absent criminal charges or other legal basis for detention. These undertakings are found in some agreements relating to the transfer of persons held in the context of the ‘Global War on Terror’. The Working Group noted that states could not accept detainees under such conditions without seriously violating their obligations under international human rights law. This being said, it noted that not all commitments by the receiving state to take measures to prevent a person suspected of constituting a threat to the sending state had to be rejected. For example, it might be acceptable for a receiving state to undertake to keep a person returned to its territory under surveillance, as long as such surveillance did not amount to a deprivation of liberty without charges; was not so intrusive as to violate other fundamental rights and was subject to periodic review. Report of the Working Group on Arbitrary Deprivation of Liberty, 9 January 2007, paras. 53–58.

124 Questions of the enforceability of the agreements at the national level may arise, particularly within federal states, as was the case, for example, in the United States in the proceedings that gave rise to the Avena case before the International Court of Justice. ICJ, Case concerning Avena and other Mexican Nationals (Mexico v. The United States of America), 31 March 2004.

125 With regard to non-refoulement under refugee law, the position is clear-cut: undertakings are not to be given any weight when a refugee is being refouled, directly or indirectly, to his/her country of origin or former habitual residence. They also cannot be used to deny asylum-seekers access to refugee status determination proceedings. UNHCR Note on Diplomatic Assurances and International Refugee Protection, August 2006.

126 The question of the effect of assurances came squarely before the Court in the Mamatkulov case. However, the Court did not expressly rule on the compatibility of the assurances with the principle of non-refoulement. Instead, it found that on the basis of the facts before it, it was unable to conclude that substantial grounds existed at the time of the transfer for believing that the applicants faced a real risk of torture or ill-treatment. ECtHR, Mamatkulov and Askarov v. Turkey, Applications Nos. 46827/99 and 46951/99, Judgment of 4 February 2005.

127 For example, in the abovementioned Chahal case, in view of the situation prevailing in India at the time and, in particular, of the fact that ill-treatment by certain members of the security forces was a ‘recalcitrant and enduring problem’, as well of the applicant's background, the Court was not persuaded that the assurances given by the receiving state that the applicant would not be ill-treated were sufficient to remove the risk. Chahal v. The United Kingdom, above note 28, para. 105. See also Saadi v. Italy, above note 13, para. 148. The Court has, in fact, itself relied upon assurances to lift its request to a sending state to refrain from effecting a transfer pending its review of an application. In the Shamayev case having been seized of the case of the imminent extradition from Georgia to Russia of a number of Chechens on terrorism charges, the Court had requested Georgia not to effect the transfer pending its review of the case. Upon receiving assurances from Russia that the death penalty would not be imposed; that the Chechens' health and safety would be protected; that they would be guaranteed unhindered access to medical care and legal representation; that they would have unhindered access to the European Court of Human Rights, and free correspondence with it; that the Court would have unhindered access and possibility of communication with them, including the possibility of visiting them, the Court had lifted the request, thus itself relying on the undertakings. Shamayev and 12 others v. Georgia and Russia, above note 113.

128 See, e.g., Committee against Torture, Hanan Ahmed Fouad Abd El Khalek Attia v. Sweden, Communication No. 199/2002, Views of the Committee against Torture of 17 November 2003, UN Doc. CAT/C/31/D/199/2002, para. 12.2. In the case of Agiza v. Sweden, which came before the Committee after the applicant had been transferred to Egypt and ill-treated, the Committee merely noted that the procurement of diplomatic assurances, which had no effective mechanism for enforcement, had not sufficed as a matter of practice to protect the applicant from the manifest risk of torture. It did not address the question of the weight, if any, that Sweden should have given to the assurances in determining whether to transfer the applicant. Agiza v. Sweden, above note 96, para. 13.4.

129 For example, in its review of the United Kingdom's fourth periodic report in 2004, the Committee expressed concern at ‘the State party's reported use of diplomatic assurances in the “refoulement” context in circumstances where its minimum standards for such assurances, including effective post-return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention’. Committee against Torture, Conclusions and Recommendations: United Kingdom of Great Britain and Northern Ireland – Dependent Territories, above note 9, para. 4(d). For the United Kingdom's response to these recommendations see Comments by the Government of the United Kingdom of Great Britain and Northern Ireland to the conclusions and recommendations of the Committee against Torture, above note 31, paras. 49–69.

130 Committee against Torture, Conclusions and Recommendations: United States of America, above note 9, para. 21.

131 Human Rights Committee, Concluding Observations: United States of America, above note 8, para. 16.

132 Report of the Special Rapporteur of the Commission on Human Rights on the question of torture and other cruel, inhuman or degrading treatment or punishment, 2 July 2002, UN Doc. A/57/173, para. 35.

133 Report of the Special Rapporteur of the Commission on Human Rights on the question of torture and other cruel, inhuman or degrading treatment or punishment, 1 September 2004, UN Doc. A/59/324, para. 37.

134 Ibid., para. 40.

135 Ibid., paras. 41–42.

136 In his statement to the Commission on Human Rights in 2005, he reiterated the view, already expressed by his predecessor, that diplomatic assurances are not adequate means to satisfy the principle of non-refoulement in relation to transfers to countries where torture is systematically practiced. UN Press Release, Statement of the Special Rapporteur on Torture, Manfred Nowak to the 61st Session of the UN Commission on Human Rights, 4 April 2005, available at www.ohchr.org/english/press/newsFrameset-2.htm (last visited 15 October 2008).

137 Ibid.

138 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. 60/316, 30 August 2005, para. 46.

139 Ibid., para. 51. This statement could be interpreted as meaning that assurances must never be given any weight, including in relation to transfers to states where there is not a systematic practice of torture. However, at a meeting of Council of Europe Specialists on Human Rights convened to discuss diplomatic assurances, in response to a specific question as to whether diplomatic assurances in respect of countries with no substantial risk of torture might be permissible, Mr Nowak appeared to adopt a softer stance, replying that such additional guarantees, under the condition that they did not aim to circumvent international obligations of non-refoulement, would not be harmful. Council of Europe, Steering Committee for Human Rights (CDDH), Group of Specialists in Human Rights and the Fight against Terrorism (DH-S-TER), Meeting Report, 1st Meeting, above note 103, para. 3.

140 See, e.g., General Assembly, Resolution on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/RES/60/148, 16 December 2005, para. 8; General Assembly, Resolution on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/RES/61/153, 19 December 2006, para. 9; and General Assembly, Resolution on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/RES/62/148, 18 December 2005, para. 12. The Human Rights Council has been equally general. See, e.g., Human Rights Council Resolution 8/8, Torture and other cruel, inhuman or degrading treatment or punishment, 18 June 2008, para. 6(d).

141 Sub-Commission on Human Rights resolution 2005/12, above note 34, paras. 4–6.

142 The Committee did not reach a conclusion on the legitimacy of diplomatic assurances, pointing out that the risk faced and the reliability of the assurances received would have to be assessed on the basis of the specific circumstances of every case. With regard to monitoring mechanisms, it stated that it still had to see convincing proposals for an effective and workable mechanism. In its view, such a mechanism could have to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected. 15th General Report on the CPT's Activities, covering the period 1 August 2004 to 31 July 2005, Strasbourg, 22 September 2005, paras. 38–42.

143 Council of Europe, Steering Committee for Human Rights (CDDH), Group of Specialists in Human Rights and the Fight against Terrorism (DH-S-TER), Meeting Report, 1st Meeting, above note 101; and, Meeting Report, 2nd Meeting, above note 101. The Group met twice to discuss diplomatic assurances in the context of the fight against terrorism. Its discussions focused on expulsions where there was a risk of torture, cruel, inhuman or degrading treatment or punishment. It was also requested to consider the appropriateness of developing a Council of Europe legal instrument on diplomatic assurances. At the end of the second meeting, in March 2006, the Group emphasized a number of points, including that:

  1. iii.

    iii. States must not expel an individual where there are substantial grounds to believe that he or she will be subject to a real risk of treatment contrary to Article 3 [of the European Convention on Human Rights];

  2. iv.

    iv. the assessment [of the existence of the risk] must be carried out on a case-by-case basis. There should be no list of ‘safe’ or ‘unsafe’ States;

  3. v.

    v. the existence of diplomatic assurances in a particular case does not relieve the sending States of their obligation not to expel if there are substantial grounds to believe that there is a real risk of treatment contrary to Article 3 [of the European Convention on Human Rights]. In other words, diplomatic assurances are not an alternative to a full risk assessment.

However, the Group was unable to reach agreement on the potential role and impact of assurances to mitigate or eliminate the risk of torture or other forms of ill-treatment. In view of the significant divergence of views, the Group decided that it was inappropriate for the Council of Europe to draft a legal instrument on the topic. Meeting Report, 2nd Meeting, Strasbourg, 29–31 March 2006, DH-S-TER(2006)005, paras. 9–17. For a summary of the arguments made by to the Group by the UN Special Rapporteur on the Question of Torture, see the Report of the Special Rapporteur on the Question of Torture, UN Doc. E/CN.4/2006/6, 23 December 2005 at paras. 31–32.

144 On the issue of diplomatic assurances the Commission concluded that ‘[d]iplomatic assurances must be legally binding on the issuing State and must be unequivocal in terms; when there is substantial evidence that a country practices or permits torture in respect of certain categories of prisoners, Council of Europe member States must refuse the assurances in cases of requests for extradition of prisoners belonging to these categories’. Opinion on the International Legal Obligations of Council of Europe Member States in respect of Secret Detention Facilities and Inter-State Transport of Prisoners, adopted by the Venice Commission at its 66th Plenary Session, Venice, 17–18 March 2006, Opinion No.363/2005, CL-AD(2006)009, para. 159, Conclusion g. See also the discussion at paras. 141–142.

145 The Commission addressed the issue in relation to the detainees held at Guantánamo in a decision on precautionary measures, where it stated that ‘[w]here there are substantial grounds for believing that [a detainee] would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State's non-refoulement obligation’. Inter-American Commission on Human Rights' decision on precautionary measures for the detainees at Guantánamo Bay, above note 97, p. 10. The point was reiterated in a resolution on the same topic. Inter-American Commission on Human Rights, Resolution No. 1/06 on Guantánamo Bay Precautionary Measures of 28 July 2006, para. 4.