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<<previous | index | next>> The Legal Prohibition against Returns to Risk of Torture and Ill-TreatmentInternational law is clear: torture and cruel, inhuman or degrading treatment or punishment (hereinafter “ill-treatment”) are prohibited absolutely, in all situations and at all times, as is the transfer of any person under any circumstances to a place where he or she would be at risk of such abuse.2 International LawThe absolute prohibition against torture and ill-treatment has been much discussed in the wake of revelations in April 2004 of detainee mistreatment at Abu Ghraib prison by U.S. military and intelligence personnel.3 Far less public discussion has been dedicated to the concomitant and equally absolute prohibition against returning or transferring a person to a place where he or she would be at risk of torture and ill-treatment.4 The prohibition against torture and ill-treatment, including the ban on such transfers, is absolute and permits no exceptions. The ban applies to every person, in times of armed conflict, disturbances, emergencies, or peace, no matter what past or current military or personal status obtains or what crimes or activities a person is suspected of having committed. States cannot derogate from or “opt out” of this obligation. The prohibition against torture is enshrined in numerous major international and regional human rights treaties as detailed below.5 Authoritative interpretations of anti-torture provisions in key treaties indicate that the prohibition against torture and ill-treatment includes the nonrefoulement obligation, even where that obligation is not expressly stated. U.N. Convention against TortureThe generally accepted definition of torture appears at article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention against Torture): [T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain is inflicted by or at the acquiescence of a public official or other person acting in an official capacity.6 Under the convention, it is expressly prohibited to transfer a person to a country where he or she would be at risk of torture. The ban thus maintains logical consistency: states cannot torture and cannot circumvent this obligation by sending people to governments that will. The obligation not to send a person to a place where he or she would be at risk of torture is clearly articulated in article 3: 1. No State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture… 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights. In Tapia Paez v. Sweden, the Committee against Torture, authorized under the convention to consider individual cases, stated that the test of article 3 is absolute: “Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.”7 International Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights (ICCPR), ratified by 154 states, provides in article 7 that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”8 The Human Rights Committee, which oversees implementation by national governments of the ICCPR, has interpreted the Convention’s torture prohibition to include the nonrefoulement obligation: “In the view of the Committee, State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”9 Moreover, in March 2004, the Human Rights Committee adopted General Comment No. 31 on ICCPR article 2 (concerning nondiscrimination) regarding “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant.” Paragraph 12 reads in part: . . . the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 [right to life] and 7 [torture or cruel, inhuman or degrading treatment] of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.10 It is important to note that such “irreparable harm,” in accordance with ICCPR article 7, expressly includes cruel, inhuman, or degrading treatment or punishment. 1951 Convention Relating to the Status of RefugeesThe nonrefoulement obligation is also a core principle of international refugee law. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Refugee Convention) require that no state “shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”11 Unlike the Convention against Torture and ICCPR, the prohibition against refoulement under the Refugee Convention is not absolute and exceptions to its protections are permitted in very narrow circumstances.12 Any person excluded from refugee status or continuing protection from refoulement as a result of any one of these exceptions, however, retains the right to claim protection from return or transfer to risk of torture or ill-treatment under other international instruments and customary international law. International Humanitarian LawInternational humanitarian law prohibits torture and ill-treatment of all combatants and civilians, in all circumstances of international and non-international armed conflict. The Geneva Conventions explicitly permit the transfer of prisoners of war (POWs) and civilians only to states that are parties to the conventions and willing to comply with the protections codified in them. The human rights norm against torture and ill-treatment, including refoulement to such abuse, continues to apply in all situations of armed conflict. The Third Geneva Convention, article 13, states that “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.”13 Article 17 provides that: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.” The Convention includes an express provision at article 12 regarding the transfer of a POW to a third state and requires that the receiving state be a party to the convention and fully protect the rights of POWs, including the prohibition against torture and ill-treatment.14 The Fourth Geneva Convention prohibits the torture and ill-treatment of civilians.15 The convention also prohibits the unlawful transfer or deportation of civilians to states not party to the convention and requires the receiving state to ensure that the rights codified in the convention are applied to all transferred civilians.16 Significantly, the convention states that: “In no circumstances shall a protected person [including civilians] be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”17 Article 147 specifically classifies torture and inhumane treatment, and the unlawful deportation or transfer of protected persons, including civilians, as “grave breaches” or war crimes under the convention.18 Article 3, common to all of the Geneva Conventions, applies to detained civilians in internal conflict and prohibits cruel treatment, torture, and “outrages against personal dignity, in particular humiliating or degrading treatment.”19 Although Common Article 3 does not expressly address the transfer of detainees, the prohibition against inhumane treatment applies “in all circumstances” and “at any time and in any place whatsoever.”20 Common Article 3 is taken as a de minimus standard that states the customary international law imperative of humane treatment in all situations of conflict, even those that might arguably fall short of the threshold of the Geneva Conventions and their Protocols.21 Customary International LawThe prohibition against torture and ill-treatment has risen to the level of jus cogens, that is, a peremptory norm of international law. As such it is considered part of the body of customary international law that binds all states, whether or not they have ratified the treaties in which the prohibition against torture is enshrined. Many governments, human rights experts, and legal scholars have also affirmed that the prohibition against refoulement, derivative of the absolute ban on torture and from which no derogation is permitted, shares its jus cogens character.22 The U.N. Special Rapporteur on Torture has stated that “The 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.”23 The norm against torture, moreover, is undoubtedly one of the “basic rights of the human person” that partake of an erga omnes character, that is, it is one in which all states have a legal interest in ensuring its protection.24 The erga omnes character of the norm signals that states have a right to pursue remedies for its violation collectively as well as individually. Torture is a grave breach of the Geneva Conventions, which require states parties to “search for” persons committing such crimes regardless of their nationality and bring them to justice in their own courts.25 It is moreover a crime of universal jurisdiction, and can also constitute a crime against humanity or a war crime under the jurisdiction of the International Criminal Court. 26 Implicit in such a general right of enforcement and remedy on the part of the whole international community is the principle that states also have an obligation not to facilitate violations, either by their own agents or agents of another state. Transferring individuals to states where they are at risk of torture and prohibited ill-treatment, under the rationale of unreliable diplomatic assurances, flies in the face of this principle. Regional Human Rights LawThe general prohibition against torture is enshrined in a number of regional human rights treaties, including the African Charter on Human and Peoples’ Rights27 and the American Convention on Human Rights.28 The focus of this report is on the law and jurisprudence in the Council of Europe region, governed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) since all of the sending states referenced in this report and in the “Empty Promises” report, with the exceptions of the U.S. and Canada, are in Europe. European Convention on Human RightsArticle 3 of the European Convention on Human Rights (ECHR) states that “No person shall be subjected to torture or to inhuman or degrading treatment or punishment.” It is in the case law of the European Court of Human Rights (which considers potential violations of the ECHR) that the prohibition against refoulement is recognized to derive from the general and absolute prohibition against torture. The Soering case established the general principle that the nonrefoulement obligation attaches to article 3.29 The case of Chahal v. United Kingdom, however, remains the standard regarding the absolute prohibition against refoulement and against reliance on diplomatic assurances as a safeguard against torture and ill-treatment upon return.30 The court ruled in Chahal that the return to India of a Sikh activist, suspected of involvement in terrorism, would violate the United Kingdom’s obligations under ECHR article 3, despite diplomatic assurances proffered by the Indian government that Chahal would not suffer mistreatment at the hands of the Indian authorities. The court noted: [T]he United Nations' Special Rapporteur on Torture has described the practice of torture upon those in police custody [in India] as "endemic" and has complained that inadequate measures are taken to bring those responsible to justice. . .The NHRC [Indian National Human Rights Commission] has also drawn attention to the problems of widespread, often fatal, mistreatment of prisoners and has called for a systematic reform of the police throughout India. . .Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above, it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem. . .Against this background, the Court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety.31 The court thus established the standard that diplomatic assurances are an inadequate guarantee for returns to countries where torture is “endemic,” or a “recalcitrant and enduring problem,” as well as reaffirming the nonrefoulement obligation in European human rights law. The Nexus between the Nonrefoulement Obligation and Diplomatic AssurancesSince April 2004, a number of eminent independent human rights experts have expressed alarm regarding the threat that reliance on diplomatic assurances poses to the integrity of the global ban on torture and on states’ nonrefoulement obligation under international and regional law. Council of Europe Commissioner for Human RightsCouncil of Europe Commissioner for Human Rights Alvaro Gil-Robles expressed concern in July 2004 about the Swedish government’s actions in the summary expulsions of two Egyptian asylum seekers in December 2001 following assurances against torture from the Egyptian authorities.32 Gil-Robles stated that it is particularly important in cases where risk of torture is elevated that “proceedings leading to expulsion are surrounded by appropriate legal safeguards, at the very least a hearing in a judicial instance and right to appeal. Contrary proceedings clearly risk violating articles 3, 6, and 13 of the European Convention [on Human Rights].”33 Moreover, Gil-Robles stated that the men’s cases “clearly illustrate the risks of relying on diplomatic assurances:”34 The weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment. Due to the absolute nature of the prohibition of torture or inhuman or degrading treatment, formal assurances cannot suffice where a risk nonetheless remains…When assessing the reliability of diplomatic assurances, an essential criteria must be that the receiving state does not practice or condone torture or ill-treatment, and that it exercises effective control over the acts of non-state agents. In all other circumstances it is highly questionable whether assurances can be regarded as providing indisputable safeguards against torture and ill-treatment.35 U.N. Special Rapporteur on TortureIn his September 2004 report to the United Nations General Assembly,36 Theo van Boven, the outgoing special rapporteur on torture, expressed concern that reliance on diplomatic assurances is a “practice that is increasingly undermining the principle of non-refoulement.”37 He questioned “whether the practice of resorting to assurances is not becoming a politically inspired substitute for the principle of non-refoulement, which…is absolute and nonderogable.”38 In his conclusions, the Special Rapporteur stated that, as a baseline, in circumstances where a person would be returned to a place where torture is systematic, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.”39 He also noted that if a person is a member of a specific group that is routinely targeted and tortured, this factor must be taken into account with respect to the nonrefoulement obligation.40 The current special rapporteur on torture, Manfred Nowak, echoed van Boven’s conclusion against the use of assurances for returns to countries where torture is systematic in one of his first public statements on the issue: In the situation that there’s a country where there’s a systematic practice of torture, no such assurances would be possible, because that is absolutely prohibited by international law, so in any case the government would deny that torture is actually systematic in that country, and could easily actually give these diplomatic assurances, but the practice then shows that they are not complied with. And there’s then no way or very, very little possibility of the sending country to actually—as soon as the person is in the other country—to make sure that this type of diplomatic assurances are complied with.41 Nowak’s statement not only categorically rejects the use of assurances to countries where torture is systematic, it highlights some of the most obvious flaws inherent in enforcing such guarantees in any case where they might be used, including perfunctory denials by the receiving state and the inability of the sending state to monitor effectively for torture after a person is transferred to an abusive state. U.N. Independent Expert on the Protection of Human Rights and Fundamental Freedoms While Countering TerrorismThe United Nations Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Robert K. Goldman, has also described as “troubling” states’ increased reliance on diplomatic assurances to effect transfers of terrorist suspects.42 In a February 2005 report, Goldman notes that “the mere fact that such assurances are sought is arguably a tacit admission by the sending State that the transferred person is indeed at risk of being tortured or ill-treated.”43 Invoking Theo van Boven’s 2004 General Assembly report (see above), the independent expert details the problems associated with reliance on assurances: compliance with such guarantees cannot be verified in the same manner as assurances in death penalty cases;44 diplomatic assurances against torture are not legally binding and include no sanctions for any breach; and post-return monitoring is often frustrated by lack of access to detention facilities and denials of requests for independent monitoring by doctors or lawyers.45 He also comments on the dynamics of torture and how learning of violations “is further frustrated by the fact that persons subjected to torture are often reluctant to speak about the abuse out of fear of further torture as retribution for complaining.”46 The independent expert also quotes the special rapporteur’s conclusion regarding reliance on diplomatic assurances to effect returns to countries where torture is systematic: “in circumstances where a person would be returned to a place where torture is systematic, ‘the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.’”47 In his own conclusions, the independent expert states: Given the absolute obligation of States not to expose any person to the danger of torture by way of extradition, expulsion, deportation, or other transfer, diplomatic assurances should not be used to circumvent the nonrefoulement obligation.48 [2] The word “transfer” includes any process leading to the involuntary return of a non-national either to his or her country of origin or to a third country, including by deportation, removal, expulsion, extradition, rendition, or other transfer from the custody of one government to the custody of another government. [3] See, Human Rights Watch Report, The Road to Abu Ghraib, June 2004 [online] http://www.hrw.org/reports/2004/usa0604/ (retrieved March 1, 2005). [4] While much has been written about renditions by the U.S. of terrorist suspects to third countries for interrogation (see U.S. section below), there is far less discussion about the full range of transfers—deportation, removal, expulsion, extradition—and how many states in North America and Europe are using powers under both counter-terrorism and immigration laws to transfer alleged terrorist suspects and national security threats to their home or third countries. As documented below, many such transfers occur on the basis of reliance by the sending state on diplomatic assurances against torture and ill-treatment from the receiving state, which often has a well-documented record of torture. [5] For the purposes of this paper, the word “torture” when used alone includes cruel, inhuman, or degrading treatment or punishment in conformity with the U.N. Human Rights Committee’s General Comment No. 20 (1992), which states: “In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.” [6] One-hundred and thirty nine states have ratified the Convention against Torture, including all of the states referenced in this report as sending states: Austria, Canada, Georgia, Germany, Netherlands, Sweden, United Kingdom and United States. The Convention against Torture has also been ratified by all the countries referenced herein to which people have been transferred or have been threatened with transfer, including Algeria, China, Egypt, Morocco, Russia, Syria, Tunisia, Turkey, Uzbekistan, and Yemen. [7]Tapia Paez v. Sweden, Communication No. 39/1996, April 28, 1997. [8] ICCPR, article 7. [9] U.N. Human Rights Committee General Comment No. 20 (1992). [10] General Comment No. 31, CCPR/C/21/Rev.1/Add.13, March 26, 2004 (adopted on March 29, 2004) [online] http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument (retrieved March 31, 2005). ICCPR article 2 reads: “Each State party to the present Covenant undertakes to respect and to ensure to all individuals with its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [11] 1951 Convention Relating to the Status of Refugees, article 33 [online] http://www.ohchr.org/english/law/refugees.htm (retrieved March 18, 2005); 1967 Protocol Relating to the Status of Refugees [online] http://www.ohchr.org/english/law/protocolrefugees.htm (retrieved March 18, 2005). [12] A person seeking refugee status can be excluded from such status based on article 1F, which states that “the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that a) He has committed a crime against peace, a war crime, or a crime against humanity…b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) He has been guilty of acts contrary to the purposes and principles of the United Nations.” The exceptions to refoulement that apply to persons already recognized as refugees are found in articles 32 and 33: Article 32. Expulsion 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority… Article 33. Prohibition of expulsion or return ("refoulement") 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [13]Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, article 13 [online] http://www.unhchr.ch/html/menu3/b/91.htm (retrieved March 17, 2005). [14] Ibid. Article 12 states: “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.” [15]Convention
Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 6 U.S.T. 3516, 75 U.N.T.S. 287 [16] Ibid., article 45. [17] Ibid. [18] Article 147 states that “Grave breaches…shall be those involving any of the following acts, if committed against persons or property protected by the present Convention; willful killing, torture or inhumane treatment, including biological experiments, willfully causing great suffering or serious injury to body or to health, unlawful deportation or transfer or unlawful confinement of a protected person…” [19] Ibid. Article 3 reads: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment… [20] Ibid. [21] Jean S. Pictet, ed. Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), Art. 3.1.A, p. 36: Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions…? We do not subscribe to this view. We think, on the contrary, that the scope of application of the article must be as wide as possible….What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? See also, Association of the Bar of the City of New York and Center for Human Rights and Global Justice at NYU School of Law, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions,” October 2004, p. 65 and fn. 355, sources cited therein [online] http://www.abcny.org/pdf/report/Torture%20by%20Proxy%20-%20Final%20(PDF).pdf (retrieved March 9, 2005)
[22]
See, Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the
Principle of Non-refoulement,” June 20, 2001 [23] Report of the Special Rapporteur on Torture Theo van Boven to the General Assembly, A/59/324, August 23, 2004, paras. 25-29, [online] http://daccessdds.un.org/doc/UNDOC/GEN/N04/498/52/PDF/N0449852.pdf?OpenElement (retrieved March 7, 2005). [24] Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33. Although the Barcelona Traction case did not specifically enumerate torture, it is widely accepted that the prohibition against torture and cruel, inhuman, or degrading treatment is a norm of such fundamental importance and universal acceptance that it falls into this class of obligations, and moreover, is a crime of universal jurisdiction. See, for example, Restatement of the Law (Third): The Foreign Relations Law of the United States (The American Law Institute: Washington, D.C.) 1986 at § 702 Comment (o) and M. Cherif Bassiouni, "International Crimes: Jus Cogens and Obligatio Erga Omnes," Law & Contemp. Prob., 25 (1996), pp. 63, 68. [25] See, e.g. arts. 146 and 147 to the Convention Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 6 U.S.T. 3516, 75 U.N.T.S. 287 [online] http://www.icrc.org/ihl.nsf/0/6756482d86146898c125641e004aa3c5?OpenDocument (retrieved March 17, 2005). [26] Rome Statute of the International Criminal Court, 1998, arts. 7(1)(f); 8(2)(ii); 8(2)(c)(i-ii); see also the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, at articles 8 and 9, 1996 [online] http://www.un.org/law/ilc/texts/dccomfra.htm (retrieved March 31, 2005). This foundational document for the Rome Statute laid out torture as a crime of universal jurisdiction to which every state is obliged to extend its criminal jurisdiction regardless of where or by whom the crime was committed [27] Article 5: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” [28] Article 5: “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.” Article 22(8) of the American Convention also contains the nonrefoulement obligation: “In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.” The Inter-American Convention on Torture also includes an express prohibition on refoulement at article 13: “Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting state.” [29] Soering v. United Kingdom, 1/1989/161/217, July 7, 1989 [online] http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=soering%20%7C%20v.%20%7C%20united%20%7C%20kingdom&sessionid=1273279&skin=hudoc-en (retrieved March 1, 2005). [30] Chahal v. United Kingdom, 70/1995/576/662, November 15, 1996 [online] http://www.worldlii.org/int/cases/IIHRL/1996/93.html (retrieved March 1, 2005). [31] Ibid., paras. 104-105.
[32] Report by Mr. Alvaro Gil-Robles, Commissioner from Human Rights, on His Visit to Sweden, April 21-23, 2004. Council of Europe, CommDH(2004)13, July 8, 2004, at http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/Documents/pdf.CommDH(2004)13_E.pdf (retrieved February 22, 2005). [33] Ibid., p. 9, para. 19. Article 3 provides for the absolute ban on torture and cruel, inhuman or degrading treatment; article 6 for fair trial guarantees; and article 13 for appropriate remedies for violations of the ECHR. [34] Ibid. [35] Ibid. [36]Report of the Special Rapporteur on Torture Theo van Boven to the General Assembly, August 23, 2004, paras. 30-42. [37] Ibid., para. 30. [38] Ibid., para. 31. [39] Ibid., para. 37. [40] Ibid., para. 39. [41] BBC Radio 4, Today Programme, [What would it mean for terrorist suspects if the government did get its Prevention of Terrorism Bill through parliament?], March 4, 2005, at 8:30 [online] http://www.bbc.co.uk/radio4/today/listenagain/zfriday_20050304.shtml (retrieved March 18, 2005). [42] U.N. Commission on Human Rights, Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, E/CN.4/2005/103, February 7, 2005, para. 56, p. 19 [online] http://www.ohchr.org/english/bodies/chr/docs/61chr/E.CN.4.2005.103.pdf (retrieved February 18, 2005). [43] Ibid. [44] For information regarding the distinction between assurances against the death penalty and assurances against torture, see “Empty Promises,” p. 3, footnote 2 and pp. 18-19. In general, monitoring a government’s compliance with assurances that it will not execute the death penalty is easier than monitoring compliance with assurances against torture, which is illegal and practiced in secret. As well, the death penalty is rarely carried out immediately after a person’s return, thus any potential breach of the assurances (e.g. sentencing a person to the death penalty despite assurances to the contrary) can be identified and addressed before the human rights violation occurs. In cases where diplomatic assurances are proffered as a guarantee of protection against torture, however, sending states run the unacceptable risk of being able to identify a breach, if at all given the secrecy surrounding torture, only after torture or ill-treatment has already occurred. [45] Report of Independent Expert, p. 20, para. 57. [46] Ibid. [47] Ibid., p. 20, para. 59. [48] Ibid., p. 20, para. 61.
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