Background Briefing

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Recommendations to Ensure Compliance with the Prohibition on Transfers to Risk of Torture

To the Government of Canada:

  • Take all possible steps to prevent transfer by the U.S. or any other government of a Canadian national or resident to a risk of torture or ill-treatment. Given the responsibility of all governments to do everything in their power to prevent acts of torture, Canada must ensure that it has policies in place that enable it:  (1) to learn about possible renditions to risk of torture or ill-treatment involving Canadian citizens or residents; and (2) to take high-level action through diplomatic and legal channels to prevent such transfer.
  • Ensure that procedures are in place for high-level governmental review and response whenever Canadian law enforcement, immigration, or security officials learn that a Canadian national or resident in U.S. custody has raised a CAT-related concern. Specifically, if such a person raises any concern of torture or ill-treatment if transferred to another country, or if Canadian officials realize there is a risk of torture or ill-treatment, or if the U.S. government is seeking assurances from another government, then the Canadian officials must seek high-level review of the case through a carefully delineated procedure that involves not only law enforcement, immigration, or security officials, but also those officials responsible for asylum and refugee matters and compliance with Canadian international legal obligations. Such a process could facilitate action to protect the rights of Canadians in U.S. custody.
  • Ensure full compliance with the absolute prohibition on refoulement in its own treatment of persons in Canadian custody or facing deportation from Canada. Specifically, Canada should prohibit reliance upon diplomatic assurances as a basis to transfer any person, including non-citizen terrorist suspects, to other countries when the case involves a risk of torture or ill-treatment. Canada should also repeal Sections 76-87 of the Immigration and Refugee Protection Act, providing for the use of security certificates to detain and deport, based on secret evidence presented in ex parte hearings and without procedural guarantees, persons determined to be an imminent danger to Canada’s security, including potentially effecting transfers to countries where a person would be at risk of torture or ill-treatment.

To the Government of the United States:

  • End reliance on diplomatic assurances as a basis for concluding that a person can be transferred to another country without risk of torture or other ill-treatment.
  • Revise DHS regulations implementing U.S. obligations under both the CAT and the 1998 U.S. law to ensure that the regulations do not permit the use of assurances in order to transfer a person to a country where he or she is at risk of torture or ill-treatment. Specifically, the U.S. government should repeal 8 C.F.R. §208.18(c), which provides for reliance upon assurances against torture to remove from U.S. territory persons raising claims under the CAT in immigration proceedings.
  • Direct the Department of Defense and the Central Intelligence Agency to promulgate regulations to implement Article 3 of the CAT via public notice and comment procedures. Ensure that these regulations do not permit reliance on diplomatic assurances as a basis for ending an inquiry into a CAT claim or concluding that an individual may be transferred to a place where he or she is at risk of torture or ill-treatment.
  • Enact S. 654 (Leahy bill) and H.R. 952 (Markey bill), currently pending in the U.S. Senate and House of Representatives respectively, as a means toward ending rendition to risk of torture and ensuring all relevant agencies of the U.S. government promulgate regulations that comply fully with U.S. legal obligations.

To both governments:

  • Support a comprehensive international investigation of the handling of Maher Arar’s case by all four governments involved in this case – the United States, Canada, Syria, and Jordan. Such investigation should be done under the auspices of an appropriate international body, such as the Office of the High Commissioner for Human Rights.
  • Cooperate fully and transparently in their own and in each other’s inquiries into the Arar matter. In particular, the U.S. government should reverse its decision not to cooperate with the Canadian Commission of Inquiry in the Arar matter. Because officials from both governments interacted regarding this case, including sharing information, the Canadian Commission will not be able to construct a complete picture of the consequences of actions taken by Canadian officials without cooperation from the United States.
  • Comply fully with their respective reporting requirements before the U.N. Committee Against Torture, the Human Rights Committee, and other relevant international and regional monitoring bodies. Include in these reports detailed information about all cases in which requests for diplomatic assurances against the risk of torture or ill-treatment have been sought or obtained with respect to a person subject to transfer to another country.
  • Acknowledge that the nonrefoulement obligation includes a prohibition on transfers both to risk of torture and to risk of cruel, inhuman, or degrading treatment or punishment.

<<previous  |  indexJune 2005