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Transfers of detainees: legal framework, non-refoulement and contemporary challenges

Published online by Cambridge University Press:  27 March 2009

Cordula Droege
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Abstract

The article outlines the legal framework that governs transfers of individuals, and in particular the international law principle of non-refoulement and other obstacles to transfers. The author addresses some of the new legal and practical challenges arising in detention and transfers in the context of multinational operations abroad and analyses the contemporary practice of transfer agreements.

Type
Human Rights
Information
International Review of the Red Cross , Volume 90 , Issue 871: Human Rights , September 2008 , pp. 669 - 701
Copyright
Copyright © 2008 International Committee of the Red Cross

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References

1 The most extensive analysis of the principle of non-refoulement can be found in E. Gillard, ‘There's no place like home: states’ obligations in relation to transfers of persons', in this issue, and in Sir 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, 2003, available at www.unhcr.org/publ/PUBL/419c75ce4.pdf (last visited 9 October 2007).

2 The principle of non-refoulement is also enshrined, without any limitation on security grounds, in Article 2(3) of the OAU Convention governing the Specific Aspects of Refugee Problems in Africa and reaffirmed as a rule of jus cogens in the Cartagena Declaration on Refugees (at para. 5). The principle also appears in Article 3(3) of the Principles concerning Treatment of Refugees adopted by the Asian–African Legal Consultative Committee in 1966, with a limitation on security grounds.

3 For an in-depth analysis of the principle of non-refoulement in the 1951 Refugee Convention, see Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edn, Oxford University Press, Oxford, 2007, pp. 201 ff.

4 Article 3 of the UN Model Treaty on Extradition; Article 3 of the 1957 European Convention on Extradition; Article 4 of the Inter-American Convention on Extradition; Article 9 of the 1979 UN Convention against the Taking of Hostages; Article 5 of the European Convention on the Suppression of Terrorism; European Union Council Directive 2003/110/EC 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; European Union 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 July 2002, pp. 1–20, preambular para. (13); UNHCR Executive Committee Conclusion, No. 17 (XXXI), 1980, ‘Problems of extradition affecting refugees’, paras. (d) and (e).

5 See Lauterpacht and Bethlehem, above note 1, para. 63; Committee against Torture (CAT), 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 para. 5(e).

6 See Committee against Torture, General Comment No. 1: Implementation of article 3 of the Convention in the context of article 22, UN Doc. A/53/44, 16 September 1998, annex IX.

7 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: ‘[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.’

8 Human Rights Committee, General Comment No. 20, Prohibition of torture and cruel treatment or punishment, UN Doc. CCPR/C/21/Rev.1/Add 13, 26 May 2004, para. 12; and General Comment No. 31, Nature of the general legal obligation imposed on States Parties to the Covenant, 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, e.g., Chitat Ng v. Canada, Communication No. 469/1991, 7 January 1994, UN Doc. CCPR/C/49/D/469/1991, para. 14.1; Joseph Kindler v. Canada, Communication No. 470/1991, 18 November 1993, UN Doc. CCPR/C/48/D/470/1991, para. 6.2; see the disagreement of the government of the United States with this interpretation of Articles 6 and 7 in Comments by the Government of the United States of America on the concluding observations of the Human Rights Committee, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, 12 February 2008, pp. 8 f.

9 European Court of Human Rights (ECtHR), Soering v. The United Kingdom, Judgment of 7 July 1989, Series A No. 161, para. 91; Cruz Varas and Others v. Sweden, Judgment of 20 March 1991, Series A No. 201, paras. 69–70; Vilvarajah and Others v. The United Kingdom, Judgment of 30 October 1991, Series A No. 215, p. 34, paras. 102–110; Chahal v. The United Kingdom, Judgment of 15 November 1996, Reports 1996-V, para. 74.

10 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/2005/16, 1 September 2005, paras. 27–28.

11 Human Rights Committee, General Comment No. 31, above note 8, para. 12; imposition of the death penalty without guarantees of fair trial constitutes a violation of the right to life, Human Rights Committee, General Comment on Article 6, UN Doc. HRI/GEN/1/Rev.1, 29 July 1994, para. 7.

12 It has left the question open in S.R. v. Sweden, Decision of 23 April 2003 and Bader and others v. Sweden, Judgment of 8 November 2005, para. 49. Note, however, that Protocols 6 and 13 are interpreted by some to entail a prohibition to transfer someone where he or she faces a risk of death penalty.

13 ECtHR, Öçalan v. Turkey, Judgment of 12 March 2003, para. 213, confirmed by the Grand Chamber in its Judgment of 12 May 2005, para. 169; Bader and others v. Sweden, above note 12, para. 47.

14 Article 19(2); see also 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 (Official Journal 2004, L 304, 30 September 2004, pp. 0012–0023), which provides for subsidiary protection where refugee law does not apply, but for other reasons such as the risk of the death penalty and torture or inhuman or degrading treatment or punishment people cannot be removed (Article 15).

15 For instance, the ECtHR has held that disregard for the minimum guarantees of fair trial might stand in the way of transfer: Soering, above note 9, para. 11; Mamatkulov and Askarov v. Turkey, Judgment of 4 February 2005 [GC], para. 88; see also Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/4/40, 9 January 2007, para. 49, on risk of arbitrary detention. The Committee on the Rights of the Child has also considered a number of risks which would cause irreparable harm to transferred children, such as forced recruitment: Committee on the Rights of the Child, General Comment No. 6, above note 10, p. 10.

16 While the term ‘persecution’ is not defined in humanitarian law, it refers, as a minimum, to serious violations of human rights (right to life, freedom, security) on such grounds as ethnicity, nationality, religion or political opinion. See Article 1 of the 1951 Refugee Convention; 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; 1998 Statute of the International Criminal Court, Article 7(2)g. See also Gillard, above note 1, with further references.

17 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. III, Geneva Convention relative to the Treatment of Prisoners of War, International Committee of the Red Cross, Geneva, 1960, p. 542.

18 Article 109 of the Third Geneva Convention does, however, prohibit the repatriation of sick or injured prisoners against their will during hostilities. This must clearly be interpreted as also covering prisoners of war who are not wounded and sick. Ibid., p. 512. The reason why it was inserted in the rules on the wounded and sick is that they were the only ones eligible for early release under the Third Geneva Convention.

19 Ibid., pp. 547–9.

20 ICRC Annual Report 1989, p. 87.

21 ICRC Annual Report 1991, p. 100.

22 ICRC Annual Report 2006, p. 97; ICRC Annual Report 2007, p. 102.

23 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, pp. 226–593, para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 106.

24 See Factum of the Intervenor, UNHCR, United Nations High Commissioner for Refugees, Suresh v. the Minister of Citizenship and Immigration; the Attorney-General of Canada, SCC No. 27790, reprinted in International Journal of Refugee Law, Vol. 14 (January 2002), p. 141, at para. 27: ‘Article 3(1) [of the Convention against Torture] prevails over Article 33(2) [of the Refugee Convention]’; Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR, January 2007, para. 11.

25 On complementary protection, see Goodwin-Gill and McAdam, above note 3, pp. 285 ff.; Jane McAdam, ‘Complementary protection and beyond: How states deal with human rights protection’, Working Paper No. 118, UNHCR, August 2005.

26 UNHCR, Note on the Principle of Non-Refoulement, 1 November 1997; UNHCR, Note on Diplomatic Assurances, August 2006, para. 8; Human Rights Committee, General Comment No. 31, above note 8, para. 12; Committee against Torture, General Comment No. 1, Implementation of Article 3 of the Convention in the context of Article 22, A/53/44, annex IX, 21 November 1997, paras. 2 and 3; ECtHR, T.I. v. the United Kingdom, Appl 43844/98, Decision as to admissibility of 7 March 2000, p. 15; UNHCR EXCOM Conclusion No. 58 (XL), Problem of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection, 1989, para. f(i); Lauterpacht and Bethlehem, above note 1, para. 243.

27 ECtHR, H.L.R. v. France, Judgment of 29 April 1997, Reports 1997-III, para. 40; D. v. The United Kingdom, Judgment of 2 May 1997, Reports 1997-III, paras. 49–53; Salah Sheekh v. The Netherlands, Judgment of 11 January 2007, para. 147. The Human Rights Committee has not yet had to decide this question specifically, but its general statement on the prohibition to transfer anyone who is at risk of ‘irreparable harm’ is not confined to violations committed by state officials; the Convention against Torture, on the other hand, covers only torture committed by or on behalf of state agents (but also cases when non-state entities exercise quasi-governmental functions: Sadiq Shek Elmi v. Australia, Communication No. 120/1998, 14 May 1999, UN Doc. CAT/C/22/D/120/1998, 25 May 1999).

28 Although Article 45(5) of the Fourth Geneva Convention exempts extraditions from its scope of application.

29 See the ‘Observations of the governments of Lithuania, Portugal, Slovakia and the United Kingdom intervening in the Application No. 25424/05’, Ramzy v. the Netherlands, paras. 25–29, available at www.redress.org/publications/GovernmentintervenorsobservationsinRamzy%20case22November.pdf (last visited 17 June 2008).

30 Human Rights Committee, Concluding observations: Canada, UN Doc. CCPR/C/CAN/CO/5, 20 April 2006, para. 15; Committee against Torture, Tapia Paez v. Sweden, UN Doc. CAT/C/18/D/39/1996, 7 May 1997, para. 14.5; Committee against Torture, Concluding observations: Canada, UN Doc. CAT/C/CR/34/CAN, 7 July 2005, para. 4(a); ECtHR, Chahal, above note 9, para. 80; Saadi v. Italy, Grand Chamber Judgment of 28 February 2008, para. 138. See also Bruin, Rene and Wouters, Kees, ‘Terrorism and the non-derogability of non-refoulement’, International Journal of Refugee Law, 15 (5) (2003)CrossRefGoogle Scholar.

31 The procedural dimension is especially emphasised in Lauterpacht and Bethlehem, above note 1, paras. 159 f.; Gillard, above note 1. In national jurisprudence similar requirements have been imposed in: Suresh v. Canada (Minister of citizenship and immigration) (2002) ISCR. 3, 2002 500 1, paras 121–122 and Khouzam v. Attorney General of the United States and others, Decision of the United States Court of Appeals for the Third Circuit, 5 December 2008 (www.aclo.org/immigrants/gen/37887lgl20081205.html. viewed 6.12.2008).

32 See ICCPR, Articles 2(3), 13; ECHR, Article 13; ACHR, Article 27; Article 1 of Protocol No. 7 to the ECHR; Human Rights Committee, Mansour Ahani v. Canada, Communication No. 1051/2002, 15 June 2004 paras No. 6, No. 8, UN Doc. CCPR/C/80/D/1051/2002, paras 10.6–10.8; Committee against Torture, Ahmed Hussein Mustafa Kamil Agiza v. Sweden, Communication No. 233/2003, 24 May 2005, UN Doc. CAT/C/34/D/233/2003, para. 13.7; Committee against Torture, Concluding observations: Australia, UN Doc. CAT/C/AUS/CO/3, 22 May 2008, para. 17; Committee against Torture, Conclusions and recommendations: United States of America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, para. 20; ECtHR, Chahal, above note 9, paras. 151–152; Report of the Special Rapporteur on Torture, above note 7, para. 29; Inter-American Commission on Human Rights, Decision of 28 October 2002, ‘Extension of precautionary measures (N. 259) regarding detainees in Guantánamo Bay, Cuba’, and Resolution No. 1/06 on ‘Guantánamo Bay precautionary measures’ of 28 July 2006, para. 4; see also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, 2002, para. 394.

33 This was recently reaffirmed by the Council of Europe's 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, 7–9 December 2005, DH-S-TER(2005)018, and ‘Meeting Report, 2nd Meeting’, Strasbourg, 29-31 March 2006, DH-S-TER(2006)005.

34 Lauterpacht and Bethlehem, above note 1, para. 249, with references to practices in paras. 245–248.

35 Reservations of the United States of America upon ratification of the Convention against Torture (www.ohchr.org/english/bodies/ratification/viewed 9 December 2008).

36 England and Wales Court of Appeal, AS & DD (Lybia) v. Secretary of State for the Home Department, [2008] EWCA Civ 289, para. 60.

37 1951 Refugee Convention, Article 32(2). Lack of counsel was one of the factors taken into account by the European Court of Human Rights to assess the effectiveness of the remedy in Chahal, above note 9, para. 154.

38 See, for example, ECtHR, Jabari v. Turkey, Judgment of 11 October 2000, para. 50, in which 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); Committee against Torture, Concluding observations: Australia, above note 32, para. 17; further references on the need for a suspensive effect are found in Gillard, above note 1.

39 For a description of the various forms of multinational operations under the auspices of the United Nations, see United Nations Peacekeeping Operations, Principles and Guidelines, ‘Annex 2’, UN Department of Peacekeeping Operations, Department of Field Support, pp. 94 ff.

40 The only exception which could modify the obligations of non-refoulement would be a Security Council resolution pursuant to Chapter VII of the United Nations Charter, as will be discussed below.

41 Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations, above note 24, para. 24, in which UNHCR explicitly distances itself from the decision of the US Supreme Court in Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council, Inc., et al., 509 U.S. 155 (1993).

42 Ibid., at para. 43.

43 For a more detailed discussion of the extraterritorial application of human rights treaties, see Cordula Droege, ‘Between dissonance and harmony: humanitarian law and human rights’, in this issue.

44 ICJ, Nuclear Weapons case, above note 23, para. 25; ICJ, Wall case, above note 23, paras. 106–111; Case concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment of 19 December 2005, para. 216.

45 ICJ, Wall case, above note 23, paras 107–113; DRC v. Uganda case, above note 44, paras. 215–220; Human Rights Committee, General Comment No. 31, above note 8, para. 10; Human Rights Committee, Comments of the Human Rights Committee: Cyprus, CCPR/C/79/Add.39, 3 August 1994, para. 3; Human Rights Committee, Concluding observations: Israel, UN Doc. CCPR/CO/78/ISR, 21 August 2003, para. 11; ECtHR, Loizidou v. Turkey (Preliminary Objections), Judgment of 23 March 1995, Series A 310, para. 62; Cyprus v. Turkey, Judgment of 10 May 2001, Reports 2001-IV, para. 77; Bankovic & Others v. Belgium and 16 Other Contracting States, Application No. 52207/99, admissibility decision [GC], 12 December 2001, para. 70.

46 Human Rights Committee, López Burgos v. Uruguay, UN Doc. CCPR/C/13/D/52/1979, 29 July 1981, para. 12.3; Celiberti v. Uruguay, UN Doc. CCPR/C/13/D/56/1979, 29 July 1981, para. 10.3; Committee against Torture, Conclusions and recommendations: United Kingdom, above note 5, para. 4(b); Committee against Torture, Conclusions and recommendations: United States of America, above note 32, paras. 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, UN Doc. CAT/C/USA/Q/2, 26 April 2006, pp. 33–7; ECtHR, Öçalan, above note 13, para. 93; Issa & others v. Turkey, Judgment of 16 November 2004, para. 71; Inter-American Commission on Human Rights, Coard v. the United States, Case 10.951, Report No. 109/99, 29 September 1999, para. 37; UK House of Lords, Al-Skeini and others v. Secretary of State for Defence, [2007] UKHL 26. In a recent judgment the Federal Court of Canada rejected the application of the Canadian Charter of Rights and Freedoms to persons detained in Canadian military custody in Afghanistan, but held that international law did apply to such persons. It did not make any statements as to the applicability of specific international human rights treaties: Federal Court of Canada, Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defense and Attorney-General of Canada, Judgment of 12 March 2008, 2008 FC 336.

47 See ICCPR, Article 9(1); ECHR, Article 5; American Convention on Human Rights, Article 7; African Charter on Human and Peoples' Rights, Article 6. All these articles apply to arrest and detention.

48 Danish Ministry of Foreign Affairs, ‘Non-paper on legal framework and aspects of detention’, Copenhagen Conference: The Handling of Detainees in International Military Operations, 11–12 October 2007, Denmark, p. 12: ‘a transfer will basically imply that the receiving State assumes the responsibility of the detainees’.

49 Gillard, above note 1; Lauterpacht and Bethlehem, above note 1, para. 114.

50 Committee against Torture, Conclusions and recommendations: United Kingdom, above note 5, paras. 4(b) and 5(e). The United Kingdom rejects the applicability of Article 3 of the Convention against Torture to detainees of the UK in Iraq and Afghanistan. See Comments by the United Kingdom to the Conclusions, CAT/C/GBR/CO/4/Add.1, 8 June 2006, para. 14.

51 Responsibility of international organizations – comments and observations received from international organizations, A/CN.4/545, 25 June 2004, pp. 17–18. See also the statements of states in the Behrami case, which mainly argued that the relevant criterion was ‘effective overall control’. ECtHR, Behrami v. France and Saramati v. France, Germany and Norway, Applications No. 71412/01 and 78166/01, Decision as to Admissibility [GC], paras 82, 98, 104, 113.

52 Report of the Secretary-General on the administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, UN Doc. A/51/389, 20 September 1996, paras. 17–18; Response of the UN Secretariat to the International Law Commission, UN Doc. A/CN.4/545, 25 June 2004, pp. 17–18; Responsibility of international organizations – comments and observations received from governments and international organizations, UN Doc. A/CN.4/556, 12 May 2005.

53 Report of the Commission of Inquiry established pursuant to Security Council Resolution 885 (1993) to investigate armed attacks on UNOSOM II personnel which led to casualties among them, UN Doc. S/1994/653, 1994.

54 R (on the application of Al-Jedda) v. Secretary of State for Defence, [2007] UKHL, para. 23.

55 See statement by Colonel Stephen P. Noonan in the case of Amnesty International Canada, above note 46, para. 33.

56 See ‘Agreements for settlement of claims in relation to damages suffered in the course of operations in Congo’, UN Treaty Series, Vol. 535, p. 191, at p. 199; Report of the Secretary-General on financing of United Nations peacekeeping operations, above note 52, paras. 7–8; letter of the UN Legal Counsel to the Director of the Codification Division of 3 February 2004, quoted in Second report on responsibility of international organizations by Mr Giorgio Gaja, Special Rapporteur, UN Doc. A/CN.4/541, 2 April 2004, para. 36.

57 For the possibility of dual attribution see Second report on responsibility, above note 56, para. 6; ‘Agreements for settlement of claims: Congo’, above note 56; see also the positions of states referenced in the Report by Mr Gaja, above note 56, para. 44; In the Behrami case, above note 51, paras. 135, 139, the European Court of Human Rights appears to have ignored the possibility of dual attribution.

58 Second report on responsibility, above note 56, para. 48.

59 Human Rights Committee, General Comment No. 31, above note 8, para. 10; see also Human Rights Committee, Concluding observations: Belgium, UN Doc. CCPR/C/79/Add.99, 19 November 1998, para. 14; Human Rights Committee, Concluding observations: Netherlands, UN Doc. CCPR/CO/72/NET, 27 August 2001, para. 8; Human Rights Committee, Concluding observations: Belgium, UN Doc. CCPR/CO/81/BEL, 12 August 2004, para. 6.

60 ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Judgment of 30 June 2005, paras 149–158.

61 ECtHR, Behrami, above note 51, paras. 133–141.

62 For the customary nature of the principle of non-refoulement, see Goodwin-Gill and McAdam, above note 3, pp. 345–55; Lauterpacht and Bethlehem, above note 1, para. 63; UNHCR, ‘The principle of non-refoulement as a norm of customary international law: Response to the questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’, 31 January 1994.

63 ICJ, Interpretation of the agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, p. 73, para. 37.

64 ICJ, Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174, at p. 180.

65 See Article 1 common to the 1949 Geneva Conventions; ICJ, Wall case, above note 23, paras. 159, 160.

66 This consideration appears to underlie the decision in the case of Behrami, above note 51, where it was also argued by states (at paras. 90, 101, 111, 115); it is also an important consideration in Amnesty International Canada, above note 46, para. 274.

67 See Canada's suspension of its transfers to the Afghan government: Amnesty International Canada, above note 46, para. 61.

68 Ibid., para. 149.

69 Christopher Greenwood, International Law Framework for the Treatment of Persons detained in Afghanistan by Canadian Forces, Report submitted to the Federal Court of Canada in the case of Amnesty International Canada, above note 46, para. 33.

70 ICJ, Orders of 14 April 1992 (provisional measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America and Libyan Arab Jamahiriya v. United Kingdom), ICJ Reports 1992, p. 16, para. 42 and p. 113, para. 39; European Court of First Instance, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of 25 September 2005, Official Journal C/281/17, para. 181; Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Case T-306/01, Judgment of 25 September 2005, Official Journal C/281/17, paras. 233, 234; ECtHR, Behrami, above note 51, para. 149; Al-Jedda (UKHL), above note 54. In the Al-Jedda case, however, a majority of the Lords did not consider that Article 5 of the ECHR was entirely displaced, but that it was qualified (Ibid., paras 39, 125, 126, 136).

71 See, in particular, the argumentation of states in Behrami, above note 51, paras. 97 (Denmark), 102 (Estonia), 106 (Germany), 113 (United Kingdom); argumentation of the United Kingdom in the European Court of First Instance, Yassin Abdullah Kadi, above note 70, para. 177.

72 Jochen Frowein and Nico Krisch, ‘Commentary to Article 42’, in B. Simma (ed.), The Charter of the United Nations, 2nd edn, 2002, para. 27; Zwanenburg, Marten, ‘Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation’, International Review of the Red Cross, Vol. 86 (856) (December 2004), p. 763Google Scholar; Ratner, Steven R., ‘Foreign occupation and international territorial administration: the challenges of convergence’, European Journal of International Law, Vol. 16 (2005), p. 710CrossRefGoogle Scholar. A number of authors take a more differentiated view and argue that the Security Council must be bound by at least some parts of these bodies of law: Marco Sassòli, ‘Legislation and maintenance of public order and civil life by occupying powers’, European Journal of International Law, Vol. 16 (2005), p. 661 (at p. 681, Sassòli argues that any derogation from international humanitarian law by the Security Council must be explicit); Kolb, Robert, ‘Occupation in Iraq since 2003 and the powers of the Security Council’, International Review of the Red Cross, Vol. 90 (869) (March 2008), p. 29CrossRefGoogle Scholar, at p. 33, sets a limit at rules ‘of a fundamentally humanitarian character’; Luigi Condorelli argues that the Security Council must respect international humanitarian law in its entirety: ‘Le statut des Forces des Nations Unies et le droit international humanitaire’, in Claude Emanuelli (ed.), Les Casques bleus: Policiers ou Combattants?, 1997, p. 89, at pp. 105–6.

73 Since Articles 40 and 42 of the Charter refer to ‘necessary measures’, there is some indication that the Security Council should be guided by the principle of proportionality. However, the Charter leaves such broad leeway to the Security Council in the exercise of its powers that only measures that were manifestly out of proportion to the aim pursued would be contrary to the Charter. See Frowein and Krisch, above note 72, para. 30; Kolb, above note 72, p. 35.

74 Rudolf Bernhard, ‘Commentary to Article 103’, in Simma, above note 72, para. 21.

75 See the Vienna Convention on the Law of Treaties, Articles 5, 53 and 64; European Court of First Instance, Yassin Abdullah Kadi, above note 70, para. 226 (note that the ECJ appears to adopt a rather broad view of the content of jus cogens with regard to human rights obligations, see paras 231, 282 of the same judgment); Separate Opinion of Judge Lauterpacht in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 440, para. 100; Frowein and Krisch, above note 72, para. 29; Kolb, above note 72, p. 35.

76 See UNHCR, Note on Diplomatic Assurances, August 2006, above note 26, para. 16; International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Anto Furundzija, Case IT-95-17/1, Trial Chamber II, Judgment of 10 December 1998, para. 144; note that the European Court of First Instance seems to accept that the prohibition of inhuman or degrading treatment constitutes jus cogens: European Court of First Instance, Yassin Abdullah Kadi, above note 70, para. 240.

77 UNHCR, Executive Committee, Conclusion No. 25, General conclusion on international protection, 1982, para. (b); Conclusion No. 79, General conclusion on international protection, 1996, para. (d); Cartagena Declaration on Refugees, para. 5; Allain, Jean, ‘The jus cogens nature of non-refoulement’, International Journal of Refugee Law, Vol. 13 (2001), p. 533CrossRefGoogle Scholar.

78 Charter, Article 1(3).

79 Ibid., Article 24(2); Frowein and Krisch, above note 72, para. 28; Kolb, above note 72, p. 35.

80 Frowein and Krisch, above note 72, pp. 724–5, with references.

81 The Security Council explicitly mentioned Article 103 in Resolution 670 of 25 September 1990, where it recalled ‘the provisions of Article 103 of the Charter’ and ‘decide[d] that all States, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement …’. The Security Council has subsequently affirmed the primacy of its decisions in numerous resolutions. See reference in Jean-Marc Thouvenin, ‘Commentaire à l'article 103’, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), La Charte des Nations Unies, 3rd edn, 2005, p. 2144.

82 European Court of Justice (Grand Chamber), Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Joint cases C-402/05 P and C-415/05 P, Judgment of 3 September 2008, para. 284.

83 ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of the other fundamental rules protecting persons in situations of violence’, International Review of the Red Cross, Vol. 87 (858) (June 2005), p. 393, at p. 394.

84 This has been the subject of wide discussion: see John B. Bellinger, Legal Advisor to the Secretary of State before the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, Diplomatic Assurances, ‘Statement of the Honorable John B. Bellinger, III, Legal Adviser, U. S. Department of States’, 10 June 2008; Jones, Kate, ‘Deportations with assurances: Addressing key criticisms’, International and Comparative Law Quarterly, Vol. 57 (2007), p. 183CrossRefGoogle Scholar, with further references at p. 184 on assurances entered by the United Kingdom; High Commissioner for Human Rights, Human Rights Day Statement, ‘On Terrorists and torturers’, 7 December 2005, available at www.unhchr.ch/huricane/huricane.nsf/0/3B9B202D5A6DCDBCC12570D00034CF83?opendocument (last visited 20 October 2008); Report of the High Commissioner for Human Rights on protection of human rights and fundamental freedoms while countering terrorism to the UN Commission on Human Rights, UN Doc. E/CN.4/2006/94, 16 February 2006, paras 9–10, 18–20; Report of the Special Rapporteur on Torture, above note 7, paras. 29–30; Report of the independent expert on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. E/CN.4/2005/103, 7 February 2005, paras. 54–56. See also Human Rights Committee, Concluding observations: Yemen, UN Doc. CCPR/CO/84/YEM, 9 August 2005, para. 13; Human Rights Committee, Concluding observations: Canada, UN Doc. CCPR/C/CAN/CO/5, above note 30, para. 15; Human Rights Committee, Concluding observations: United Kingdom, UN Doc. CCPR/C/GBR/CO/6, 30 July 2008, para. 12; Replies to the list of issues by the United Kingdom, UN Doc. CCPR/C/GBR/Q/6/Add.1, 18 June 2008, paras 84–97; Committee Against Torture, Concluding observations: Canada, UN Doc. CAT/C/CR/34/CAN, above note 30, paras 4(b), 5(e); Committee against Torture, Conclusions and recommendations: United Kingdom, above note 5, para. 4(d); 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 Guantanamo: Transfers to Torture One Year After Rasul v. Bush, January 2005; Amnesty International, Afghanistan – Detainees Transferred to Torture: ISAF Complicity?, November 2007, ASA 11/011/2007.

85 This is indeed a concern in some immigration regimes. See Committee against Torture, Concluding Observations: Australia, above note 32, para. 11(b).

86 Seeking legal admission to a third country is explicitly foreseen for refugees who are expelled for security reasons, 1951 Refugee Convention, Article 32 (3).

87 Such transfer agreements have been concluded, for instance, between the government of Afghanistan and the those of Canada, Denmark, the Netherlands, Norway and the United Kingdom respectively.

88 See argument of the Canadian government in Federal Court of Canada, Amnesty International Canada, above note 46, para. 85. This was also the underlying consideration in the United States Supreme Court decision in Munaf et al. v. Green, Secretary of the Army et al., 12 June 2008, pp. 17–23, in which American citizens held by US forces in Iraq requested habeas corpus protection against being transferred to the Iraqi justice system. The Supreme Court rejected the case, but appeared to reserve the right to grant habeas corpus to a person who would be at risk of torture, pp. 24–5; see also Greenwood, above note 69, paras. 48, 61.

89 ISAF, ‘Standard operating procedures: Detention of non-ISAF personnel’, 31 August 2006, para. 7.

90 This was accepted by the European Court of Human Rights in the case of Al-Moayad v. Germany, Appl. No. 35865/03, Decision of 20 February 2007, paras. 65–72.

91 With regard to refugee law see UNHCR, Note on Diplomatic Assurances, above note 26, paras 27, 36: in UNHCR's opinion, ‘diplomatic assurances should be given no weight when a refugee who enjoys the protection of Article 33(1) of the 1951 Convention is being refouled, directly or indirectly, to the country of origin or former habitual residence’ (para. 30); ECtHR, Saadi, above note 30, para. 148; The importance of a case-by-case review was most clearly reaffirmed by the Council of Europe's Steering Committee for Human Rights, above note 33, which stated that ‘diplomatic assurances are not an alternative to a full risk assessment’ which must be carried out ‘on a case-by-case basis’. See also Khouzam v. Attorney General of the United States (above note 31).

92 ECtHR, Soering, above note 9, para. 86.

93 Except in Article 33(2) of the 1951 Refugee Convention.

94 The question whether the risk and in particular the reduction of risk through diplomatic assurances can be reviewed by a court was discussed at length in the case of AS & DD (Libya) v. the Secretary of State for the Home Department, [2008] EWCA Civ 289, which answered it positively; the effectiveness of a transfer agreement is also analysed at length in Special Immigration Appeals Commission, Omar Othman v. Secretary of State for the Home Department, SC/15/2005, 26 February 2007, paras. 490–521. The ECtHR has always reviewed the reliability of such agreements, as in the cases of Chahal, above note 9, para. 105, and Saadi, above note 30, para. 147. In the United States, on the other hand, courts take the approach that the executive branch is best placed to assess the risk, as restated by the Supreme Court in Munaf et al. v. Green, Secretary of the Army et al., 12 June 2008, p. 25. The government does not show courts diplomatic assurances that it has obtained from other governments: John B. Bellinger, above note 84; Ashley Deeks argues that judicial review should be limited to procedural aspects and not substantive matters: ‘Avoiding transfers to torture’, Council on Foreign Relations Paper, CSR No. 35, June 2008, p. 38.

95 See Report of the Special Rapporteur on Torture, above note 7, para. 37; Report of the Special Rapporteur on Torture, UN Doc. A/60/316, 30 August 2005, para. 51; Committee against Torture, Conclusions and recommendations: United States of America, above note 32, para. 21; Human Rights Committee, Concluding observations: United States of America, CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para. 16; Concluding observations: United Kingdom, above note 84, para. 12. The criterion of systematic violations is not foreign to the risk-assessment in non-refoulement: according to Article 3(2) of the Convention against Torture, to assess whether there are substantial grounds for believing that the person will be subjected to torture, the existence of a ‘consistent pattern of gross, flagrant or mass violations of human rights’ must be taken into account.

96 ECtHR, Saadi, above note 30, para. 147; similarly, UNHCR's Note on Diplomatic Assurances, above note 26, para. 51, states that ‘diplomatic assurances would meet the suitability criterion only if they could effectively eliminate all reasonably possible manifestations of persecution in the individual case’.

97 Committee against Torture, Conclusions and recommendations: Canada, UN Doc. CAT/C/CR/34/CAN, 7 July 2005, para. 5(e); Conclusions and recommendations: United States of America, above note 32, para. 21; Conclusions and recommendations: United Kingdom, above note 5, para. 4(d). For the United Kingdom's reply 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, UN Doc. CAT/C/GBR/4/Add.1, 8 June 2006, paras. 49–69.

98 As argued, for instance, by the government of the United Kingdom in ‘Replies to the List of Issues (CCPR/C/GBR/Q/6) to be taken up in connection with the consideration of the sixth periodic report of the government of the United Kingdom of Great Britain and Northern Ireland (CCPR/C/GBR/6)’, UN Doc. CCPR/C/GBR/Q/6/Add.1, 18 June 2008, para. 88; Jones, above note 84, pp. 188–187; Bellinger, above note 84, p. 4; Ashley Deeks, above note 94, p. 22.

99 See, e.g., Committee against Torture, Agiza, above note 32; ECtHR, Shamayev and 12 others v. Georgia and Russia, Application No. 36378/02, Judgment of 12 April 2005; see also the redacted report of the Department of Homeland Security, Office of the Inspector General, on the case of Maher Arar: ‘The removal of a Canadian citizen to Syria’, OIG-08-08, March 2008, pp. 5, 22, 27.

100 ECtHR, Shamayev, above note 99.

101 Committee against Torture, Agiza, above note 32.

102 High Commissioner for Human Rights, Human Rights Day Statement: ‘On terrorists and torturers’, 7 December 2005, above note 84; Address by the High Commissioner for Human Rights at Chatham House and the British Institute of International and Comparative Law, 16 February 2006, available at www.biicl.org/news/view/-/id/14/ (last visited 21 October 2008); Report of the Special Rapporteur on Torture, UN Doc. A/60/316, 30 August 2005, para. 46. See also Inter-American Commission on Human Rights' decision on precautionary measures for the detainees at Guantánamo Bay, above note 32, p. 10 and Resolution No.1/06 on Guantánamo Bay precautionary measures, above note 32, para. 4.

103 Amnesty International, ‘Diplomatic assurances’ – no protection against torture or ill-treatment, campaign factsheet ACT40/021/2005, December 2005; and Human Rights Watch, Empty promises: diplomatic assurances no safeguard against torture, April 2004.

104 Third Geneva Convention, Article 126; Fourth Geneva Convention, Article 143.

105 Geneva Conventions, Common Article 3; Statutes of the International Red Cross and Red Crescent Movement, Article 5.

106 On the ICRC's terms and conditions for its work, see ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of the other fundamental rules protecting persons in situations of violence’, above note 84, p. 393.

107 Pictet, above note 17, p. 138; and Pictet, above note 28, pp. 268–9.

108 Pictet, above note 17, p. 139.

109 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; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by General Assembly Resolution 60/147 of 16 December 2005, UN Doc. A/RES/60/147, 21 March 2006.

110 If it is not materially impossible or does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. See Article 35 of the ILC Articles on State Responsibility, ibid.

111 Human Rights Committee, Chitat Ng, above note 8, para. 18; Mansour Ahani, above note 32, para. 12; Committee against Torture, Brada v. France, Communication No. 195/2002, UN Doc. CAT/C/34/D/195/2002, 24 May 2005, para. 15.

112 ICJ, Wall case, above note 23, para. 158; Chazournes, Laurence Boisson de and Condorelli, Luigi, ‘Common Article 1 of the Geneva Conventions revisited: protecting collective interests’, International Review of the Red Cross, Vol. 82 (837) (March 2000), pp. 67–87Google Scholar.

113 See intervention by Mr Claude Pilloud from the International Committee of the Red Cross at the Diplomatic Conference of Geneva of 1949, Final Act of the Diplomatic Conference of Geneva, 12 August 1949, Part II, Section B, Report of the ninth session of the Special Committee of the Joint Commission, 25 May 1949, p. 51; ICRC, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, 2nd edn, Geneva, April 1958, p. 129; Pictet, above note 17, p. 18.

114 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC/Martinus Nijhoff, 1987, commentary on Article 91, p. 1058.

115 See Jones, above note 84, p. 190.

116 See James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, 2002, p. 151, paras. 7–9, with references to state practice. The principle has been summarized in Article 16 of the Draft articles on responsibility of States for Internationally Wrongful Acts, with commentaries, in the following manner:A State which aids or assists another state in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

  1. (a)

    (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

  2. (b)

    (b) the act would be internationally wrongful if committed by that State.

117 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 420.