Background Briefing

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An absolute prohibition

The prohibition against torture and other ill-treatment in international law is absolute.3 As the European Court of Human Rights has ruled repeatedly,

[T]he Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 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 § 2 even in the event of a public emergency threatening the life of the nation.4

This absolute prohibition encompasses an absolute prohibition on the involuntary sending of a person to any state where there is a risk that he or she would be subjected to torture or other ill-treatment (referred to as “the prohibition of return to torture or other ill-treatment” or the “the prohibition of refoulement”).5 The prohibition of return to torture or other ill-treatment is also found in other international treaties and instruments in varying forms.6

In its recent concluding observations on the 5th periodic report of Canada’s implementation of the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee emphasised the absolute nature and the scope of this prohibition:

The State party should recognize the absolute nature of the prohibition of torture, cruel, inhuman or degrading treatment, which in no circumstances can be derogated from. […] No person, without any exception, even those suspected of presenting a danger to national security or the safety of any person, and even during a state of emergency, may be deported to a country where he/she runs the risk of being subjected to torture or cruel, inhuman or degrading treatment. The State party should clearly enact this principle into its law.7

The prohibition of return to torture or other ill-treatment, like the general prohibition on torture and other ill-treatment, is a rule of customary international law. In a legal opinion prepared for the UNHCR in 2001, Elihu Lauterpacht and Daniel Bethlehem described “the essential content of the principle of non-refoulement at customary law” as follows:

No person shall be rejected, returned or expelled in any manner whatever where this would compel them to remain in or return to a territory where substantial grounds can be shown for believing that they would face a real risk of being subjected to torture, cruel, inhuman or degrading treatment or punishment. This principle allows of no limitation or exception.8

Council of Europe standards and bodies have reiterated this absolute rule. For example, the Council of Europe’s Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers in July 2002, provide:

Guideline XII (2): “It is the duty of a State that has received a request for asylum to ensure that the possible return (‘refoulement’) of the applicant to his or her country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.”

…..

Guideline XIII 

“1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism.

3. Extradition may not be granted when there is serious risk to believe that:

(i)  the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment.”9

No exceptional circumstances, however grave or compelling, can justify the introduction of a “balancing test” when fundamental norms such as the prohibition of torture or other ill-treatment or return to torture or other ill-treatment are at stake. This principle is evident from the concluding observations of both the UN Human Rights Committee (HRC) and the UN Committee against Torture (CAT) on states parties’ reports under the International Covenant on Civil and Political Rights (ICCPR) and UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), respectively.10 On the relatively few occasions when states have introduced a degree of balancing in domestic systems, they have come under strong criticism by CAT11 and the HRC.12 In November 2005, for example, the HRC, in its Concluding Observations on Canada’s implementation of the ICCPR, emphasized that torture and other ill-treatment “can never be justified on the basis of a balance to be found between society’s interest and the individual’s rights under article 7 of the Covenant”.13

This position follows and underscores the ruling of the European Court of Human Rights in the Chahal case, where the Court rejected the United Kingdom’s request to perform a balancing test that would weigh the risk presented by permitting the individual to remain in the country against the risk of torture or other ill-treatment to the individual if deported.14

In the preface to its 2004-5 General Report, the European Committee for the Prevention of Torture (CPT) similarly stated:

Like the prohibition of slavery, the prohibition of torture and inhuman or degrading treatment is one of those few human rights which admit of no derogations. Talk of “striking the right balance” is misguided when such human rights are at stake. Of course, resolute action is required to counter terrorism; but that action cannot be allowed to degenerate into exposing people to torture or inhuman or degrading treatment. Democratic societies must remain true to the values that distinguish them from others.15



[3] See for instance the Universal Declaration on Human Rights, Art. 5. For treaty provisions see the International Covenant on Civil and Political Rights, Arts. 7 and 4; UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts. 1, 2, 16;  European Convention on Human Rights and Fundamental Freedoms, Arts. 3 and 15; American Convention on Human Rights Arts. 5(1), 5(2), 27(1) and 27(2); African Charter on Human and Peoples’ Rights, Art. 5; Geneva Convention III Art. 17; Geneva Convention IV Arts. 5, 27, 32, 37; Article 3(1) common to the four Geneva Conventions; Additional Protocol I Arts 75(2)(a)(ii); 75(2)(b); 75(2)(e); Additional Protocol II Arts. 4(a), 4(e), 4(h). Innumerable reports, comments and observations, declarations, decisions on individual cases and court cases, on the international, regional and domestic levels, have affirmed this general prohibition.

[4] Selmouni v. France, Reports 1999-V, Judgment of 28 July 1999, para. 95. See similarly, among others, Ireland v. the UK, Series A, vol. 25, Judgment of 18 January 1978, para. 163; Tomasi v. France, Series A no. 241-A, Judgment of 27 August 1992, para. 115; Chahal v. the UK, Reports 1996-V, Judgment of 15 November 1996, para. 79; Aksoy v. Turkey, Reports 1996-VI, Judgment of 18 December 1996, para. 62; Labita v. Italy, Reports 2000-IV, Judgment of 6 April 2000, para. 119; Kmetty v. Hungary (Application no. 57967/00), Judgment of 16 December 2003, para. 32.

[5] See for instance Soering v. United Kingdom, Series A no. 161, (1989), para. 88; Cruz Varas v. Sweden, Series A no. 201(1991) para. 69; Vilvarajah v. United Kingdom,Series A no. 215(1991), paras. 73-74 and 79-81; Chahal v. United Kingdom, Reports 1996-V (1997), para. 75; Ahmed v. Austria, Reports 1996-VI (1997), paras. 39-40; UN Human Rights Committee, General Comment No. 20 (1992), UN Doc. HRI/HEN/1/Rev.1, 28 July 1994, para. 9; The Haitian Centre for Human Rights et al. v. United States, Case 10.675 (Decision as to Merits), Report No. 51/96, Inter-Am. Ct.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 550 (1997), para. 167.

[6] See for instance the UN Convention against Torture, Art.3; the International Covenant on Civil and Political Rights, Art. 7; the Convention relating to the Status of Refugees, Art. 33; the Inter-American Convention to Prevent and Punish Torture, Art. 13; the European Convention on the Suppression of Terrorism (ETS No. 90) as amended by its Protocol of amendment (ETS No. 190), Art. 5(2); Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), African Commission’s 32nd ordinary session, 17-23 October 2002, Annex, Art. 15; the Council of Europe Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers on 11 July 2002,  Art. XIII(2).

[7] Concluding Observations of the Human Rights Committee, UN Doc. CCPR/C/CAN/CO/5, 2 November 2005, para. 15.

[8] Sir Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement,  Opinion for UNHCR’s Global Consultations, UNHCR, June 2001, para. 253. See also, for instance, Guy S. Goodwin-Gill, The Refugee in International Law (Oxford: OUP, 1996), pp. 167-170; Jean Allain, “The Jus cogens Nature of Non-refoulement,” 13 IJRL 538 (2001).

[9] Similar standards are set out in two treaties adopted in 2004 and 2005 on terrorism. Article 21(2) of the  Council of Europe Convention on the Prevention of Terrorism (ETS No. 196), 16, May 2005 provides: “Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to torture or to inhuman or degrading treatment or punishment .”

Article 5(2) of the European Convention on the Suppression of Terrorism, as amended in 2004 by the Amending Protocol to this Convention states: “[N]othing in this Convention shall be interpreted as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to torture”.

[10] See for instance CAT’s Concluding Observations on Germany, (UN Doc. CAT/C/CR/32/7, 11 June 2004) commending the reaffirmation of the absolute ban on exposure to torture, including through refoulement, even where there is a security risk.

[11] See CAT’s Concluding Observations (UN Doc. CAT/C/34/D/195/2002, para. 14; and UN Doc. CAT/C/34/CAN, 07/07/2005, para. 4(a)). 

[12] See HRC (UN Doc. CCPR/C/79/Add. 105, paragraph 13) condemning the Canadian judicial approach (set out in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3)  which upheld a degree of balancing under Article 3 UNCAT, based on national law) The Human Rights Committee stated “13. The Committee is concerned that Canada takes the position that compelling security interests may be invoked to justify the removal of aliens to countries where they may face a substantial risk of torture or cruel, inhuman or degrading treatment. The Committee refers to its General Comment on article 7 and recommends that Canada revise this policy in order to comply with the requirements of article 7 and to meet its obligation never to expel, extradite, deport or otherwise remove a person to a place where treatment or punishment that is contrary to article 7 is a substantial risk.”; see also Mansour Ahani v. Canada, Communication No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002, 15 June 2004, where the HRC also clearly rejected Canada’s balancing test (para. 10.10) in the context of deportation proceedings.

[13] UN Doc.: CCPR/C/CAN/CO/5, 2 November 2005, para. 15

[14] Chahal v. United Kingdom, application no. 70/1995/576/662, Judgment of 15 November 1996

[15] 15th General Report on the CPT’s activities covering the period 1 August 2004 to 31 July 2005, CPT/Inf (2005) 17, 22 September 2005, available at http://www.cpt.coe.int/en/annual/rep-15.htm, accessed 10 October 2005, Preface.


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