Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.3 Principle of Non-Refoulement
Margit Ammer, Andrea Schuechner
From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)
Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina
- Torture — Treaties, interpretation
(p. 98) Article 3 Principle of Non-Refoulement
1. No State Party 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.
1. Introduction 99
3. Issues of Interpretation 114
3.1 The Absolute Nature of the Prohibition of Refoulement 114
3.2 Forms of Prohibited Conduct 116
3.2.2 Non-admission 118
3.2.3 Meaning of ‘extradite’ 120
3.4 Meaning of ‘to Another State’ 124
3.4.1 Indirect Refoulement 126
3.4.2 ‘Safe third States’ 126
3.6 Probability of the Torture Risk (Risk Assessment) 133
3.6.1 Time of Risk Assessment 134
3.6.2 Relevant Factors for the Risk Assessment 137
220.127.116.11 Objective and Subjective Test: General Human Rights Situation in Receiving State and Individual Situation 137
18.104.22.168 General Human Rights Situation in Receiving State 142
22.214.171.124 Activities and Personal Factors Making the Individual Particularly Vulnerable to Torture Risk 149
3.6.5 Diplomatic Assurances 158
3.7 Burden of Proof 163
(p. 99) 3.7.2 Shift of Burden of Proof to the State Party 170
1 The prohibition of refoulement in Article 3 CAT codifies an important principle of general international law and a norm of customary international law. According to this principle a State violates the absolute prohibition of torture not only if its own authorities subject a person to torture, but also if its authorities send a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. The Committee’s task is to determine whether the expulsion, return, or extradition would violate the returning State party’s obligation under Article 31—and not whether the applicant’s rights under CAT have been violated by the receiving State. The CAT Committee has dedicated a General Comment to the principle of non-refoulement: General Comment No 4 (2017).2
2 The vast majority of individual complaints decided by the CAT Committee concerns Article 3.3 Until 31 March 2017, out of 318 Article 3-related complaints, 61 were admissibility decisions.4 Out of the 257 decisions on the merits, in 79 cases the Committee found a violation, in 178 cases a non-violation of Article 3.5 Most cases in which the Committee found a violation of Article 3 concerned applicants whose asylum applications were rejected and who were being or had been returned to the receiving State.6 This practice has led to criticism that the Committee acted as a kind of fourth instance in asylum proceedings, particularly in the Global North, rather than concentrating its efforts on denouncing torture in the States where it is perpetrated. The fact that countries of the Global North, such as Switzerland and Sweden, are those where the Committee has found the highest number of violations of Article 37 can be explained by the high level of awareness of international complaints procedures among the legal profession, and the availability of legal aid, as well as by the fact that the optional individual complaints procedure under Article 22 has been less readily accepted by States with a record of systematic practice of torture. These cases also show that, in times of increasingly restrictive asylum and immigration laws in Europe and other States of the Global North, the authorities are put under a heavy political pressure which can lead to a substantial number of violations (p. 100) of the non-refoulement principle. Torture is one of the most serious human rights violations, and complicity or participation in torture, which includes sending a person to a country despite a risk of torture there, constitutes a severe violation of the Convention.
3 The principle of non-refoulement is absolute and affords protection to every person regardless of the threat he or she may pose to the national security of the sending country and regardless of whether he or she has committed serious crimes. No balancing of interests is permitted. In contrast to the Refugee Convention of 1951, Article 3 CAT guarantees an absolute right which is not subject to any exclusion or limitation clause. Thus persons who might, for instance, for national security reasons not be eligible for asylum are equally protected.
4 In contrast to the principle of non-refoulement as developed by the European Court of Human Rights (ECtHR) and the UN Human Rights Committee (HRC) on the basis of Article 3 ECHR and Article 7 CCPR, Article 3 CAT only applies to torture in the sense of Article 1 CAT, but, owing to the insistence of the US during the drafting, not to other forms of cruel, inhuman or degrading treatment. However, other ill-treatment, not amounting to torture, is not irrelevant in the context of Article 3: the infliction of other ill-treatment is an indication of a torture risk8 and States parties should in their assessment of torture risk consider whether the risk of other ill-treatment ‘could likely change so as to constitute torture’.9 Apart from that, the Committee has in its State reporting procedure urged States parties not to return persons to situations where they might run the risk of torture or cruel, inhuman or degrading treatment or punishment.10
5 States parties must not send persons to States where the risk of torture emanates from non-State actors who enjoy impunity either because the State fails to exert due diligence or because the State is not or only partially in control of its territory.
6 When methods of corporal punishment or the methods of implementing a death penalty as per national laws in the receiving State reach a threshold where they amount to torture, States parties are prohibited from returning persons to States where they might receive sentences imposing such treatment.
7 Although the text of Article 3 only speaks of expulsion, refoulement, and extradition, this provision covers all forms of obligatory departure of a human being (aliens as well as citizens) from one jurisdiction to another, including forms of ordinary or extraordinary ‘rendition’, as practised in the fight against global terrorism. Even the transfer of a suspected terrorist from the US detention centre of Abu Ghraib to another detention centre in Iraq under the jurisdiction of the Iraqi Government must be assessed in relation to the non-refoulement principle. Similarly, the Committee cautions against requesting and accepting diplomatic assurances from States with a known record of torture. Diplomatic assurances do not absolve a sending State party from its obligations under Article 3, and from carrying out the risk assessment mandated by the non-refoulement principle.
8 In order to guarantee the principle of non-refoulement, Article 3 also demands preventive measures, in particular legislative, administrative, and judicial measures against possible violations.11 Such measures include inter alia procedural rights of the person (p. 101) concerned,12 referral of the person alleging previous torture to an independent medical examination free of charge, in accordance with the Istanbul Protocol; or training of relevant personnel.13
9 Article 3(1) contains an explicit prohibition of refoulement. It demands ‘substantial grounds’ for believing that a torture risk for the person facing deportation exists. Article 3(2) stipulates that the ‘competent authorities’ of States parties must thereby take ‘all relevant considerations’ into account. In the following, this article analyses the following distinct elements:
1. Forms of prohibited conduct (‘expel, return (“refouler”) or extradite’) if substantial grounds exist that a torture risk exists upon return (see below, 3.2).
2. The meaning of ‘a person’ (see below, 3.3).
3. The meaning of ‘to another State’ (see below, 3.4).
4. The question of the particular treatment that the person would be subjected to in the case of expulsion, return or extradition to another State: Is the scope of Article 3 CAT limited to torture alone as defined in Article 1 CAT, or does the prohibition extend to cruel, inhuman or degrading treatment in accordance with Article 16 CAT? How does the Committee deal with cases in which the applicant risks being subjected to torture which is defined as a ‘lawful sanction’ by the receiving State? What about a risk of torture posed by non-governmental actors in the receiving State? (see below, 3.5).
5. The question as to the probability of the torture risk: what is the time of the risk assessment? How does the Committee interpret the phrase ‘would be in danger of being subjected to torture’? What are the relevant factors for the risk assessment? What role does the human rights situation in the receiving State play? Are ‘internal flight alternatives’ or diplomatic assurances of relevance under Article 3? (see below, 3.6).
6. The standard of proof/evidence applied in assessing the risk of danger of torture: what is the standard of proof that can be reasonably applied? Who bears the burden of proof and when does the burden of proof shift? What is the procedure by domestic authorities and by the Committee? (see below, 3.7)
2. Travaux Préparatoires
2.1 Chronology of Draft Texts
10 IAPL Draft (15 January 1978)14
The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture, and in particular to ensure that:(p. 102)
(f) No person is expelled or extradited to a State where there are reasonable grounds to believe that that person may be in danger of being tortured.
11 Original Swedish Draft (18 January 1978)15
12 Revised Swedish Draft (19 February 1979)16
13 USSR Draft (7 March 1979)17
1) No State Party shall expel or extradite a person to another State where substantial evidence indicates that he may be in danger of being subjected to torture.
2) The evidence referred to in the preceding paragraph of this Article includes above all situations characterized by flagrant and massive violations of human rights brought about when apartheid, racial discrimination or genocide, the suppression of national liberation movements, aggression or the occupation of foreign territory are made State policy.
3) The provisions of this Article shall not be invoked as grounds for the refusing to institute proceedings against persons who have committed crimes against peace or mankind, or war crimes as defined in the relevant international instruments.
2.2 Analysis of Working Group Discussions
14 In written comments on Article 4 of the original Swedish draft, Austria suggested that a further Article be included which would oblige States parties to re-examine existing extradition treaties already in force to determine whether they were in conformity with the provisions of Article 4. Spain raised the question as to what should be done in the situation where an extradition treaty exists with a State which is ‘suspected’ of practising or tolerating torture and is not a party to the Convention, ‘since it would necessarily prevent mandatory extradition under the extradition treaty’.
15 France suggested that the Article be reworded to read: ‘No State may in any way expel, turn back or extradite a person to a State where there are serious grounds for believing that he may be in danger of being subjected to torture.’
16 Switzerland suggested that the provisions relating to extradition be subject to special requirements based on the motives for the practice of torture, as well as the circumstances in which acts of torture are carried out. The Swiss representative expressed (p. 103) the view that extradition would be ‘inconceivable unless the requested State believes that the person extradited will be given a proper trial by a court affording guarantees of fair judgement and that he will be detained in humane conditions’. The representative stated that, frequently, recourse to torture occurs in situations of domestic turmoil, in which the fate of individuals becomes very uncertain, particularly as a result of the suspension of constitutional rights and freedoms and that since the aim of a future Convention was not to create new categories of victims but to ensure the equitable punishment of the perpetrators of acts of torture, steps should be taken to prevent the alleged offenders from being subjected to the rigours of summary justice as a result of extradition.18
17 The UK suggested that the criteria for extradition should be more precise and therefore proposed the words ‘reasonable grounds to believe that he may be in danger of being’ should be replaced by ‘substantial grounds for believing that he would be …’.19
18 The 1979 Working Group further discussed Article 4 of the original Swedish draft without reaching any conclusions. Subsequently, the Swedish delegate presented a revised draft20 of the provision, which then became Article 3.21
19 This article gave rise to considerable discussion, much of which was a reiteration of the written comments submitted by States (above). The idea of having a provision prohibiting expulsion and extradition in certain circumstances received wide, although not general, support.22 Switzerland, considering that the aim of the Convention was not to create new categories of victims but to ensure the equitable punishment of the perpetrators of acts of torture, felt that steps should be taken to prevent the alleged offenders from being subjected to summary justice as a result of extradition and consequently favoured the retention of Article 3.23 Regarding the question as to whether or not this provision would create problems in relation to already existing extradition treaties, Austria suggested the inclusion of another article stipulating that States parties should re-examine extradition treaties already in force to determine their conformity with this article. Spain considered problematic the specific case of existing extradition treaties with States suspected of practising torture but who were not States parties to the Convention, since the latter Convention would necessarily prevent mandatory extradition under such extradition treaties. The Working Group agreed that it would be preferable not to include an exception for such cases in the text of the article lest such a limitation be interpreted as encouraging extradition to countries where the person concerned would be subject to torture. It was therefore proposed that the following remark be included in the report of the Commission:
Some delegates indicated that their States might wish, at the time of signature or ratification of the Convention or accession thereto, to declare that they did not consider themselves bound by Article 3 (p. 104) of the Convention, in so far as that Article might not be compatible with obligations towards States not Party to the Convention under extradition treaties concluded before the date of the signature of the Convention.
20 In written comments based on the revised Swedish draft, while noting that the underlying objective of the Convention is to prevent torture, Italy pointed out that ‘some of the provisions of the [revised Swedish] draft could conflict with [States parties’] bilateral undertakings, […] particularly with regard to extradition, expulsion, and return’ and that ‘[t]he Convention would […] be applicable only between States parties and could not have a direct effect on agreements it made between those States and ‘third’ States which might conflict with it. In order to avoid the situation where a State party might find itself unable to observe the Convention without violating bilateral undertakings previously subscribed to, Italy proposed a new wording for Article 3 which, while providing for a number of specific undertakings by States acceding to the Convention, would make it possible to ensure the following:
(a) that undertakings arising from this Convention should be considered to take precedence, between Member States, over those arising from existing agreements that conflict with it;
(b) that States parties should not subscribe to new agreements conflicting with the Convention;
(c) that States parties should proceed to modify any agreements to which they subscribed before the Convention on Torture, if implementation of those agreements could entail a violation of the principles embodied in the Convention.24
21 The advisability of including the word return (‘refouler’) in the revised draft text gave rise to considerable discussion during the 1979 Working Group. Arguments in favour included the following: that there were strong humanitarian considerations for the inclusion of the word ‘return’ which broadened the protection of the persons concerned; and that the concept is also found in Article 33(1) of the 1951 Refugee Convention. Arguments against included the following: that the 1951 Convention covered a different subject area and besides was not broadly accepted; that the concept of ‘return’ might require a State to accept a mass influx of persons when it was not in a position to do so; and that disagreement over the concept of ‘return’ had led to failure in the drafting of the Convention on Territorial Asylum. It was therefore proposed that the term be deleted or that specific provisions be made in the Convention for States to attach a reservation to their acceptance of the Article.
22 A proposal by the UK to replace the phrase ‘reasonable grounds to believe’ that the person concerned might be in danger of being subjected to torture with ‘substantial grounds for believing that he would be’ in danger of being subjected to torture in order to make the criteria more precise was adopted in the revised Swedish draft. Other alternatives suggested were ‘substantial evidence indicating’ and ‘substantial indications’. The view was expressed that some of the formulations proposed, such as the word ‘grounds’, were too vague. The term ‘evidence’ was also criticized as possibly too technical and lending itself to different interpretations in the various legal systems. The view was expressed that such problems were difficult to avoid and that the effective application of the provision would, in any event, depend upon the good faith of those concerned. It was (p. 105) pointed out that as the purpose of the provision was to afford the greatest possible protection against torture, the evidentiary requirement should not be too rigorous and should be kept to a minimum. It was further said that the burden of proof should not fall solely upon the person concerned.
23 Certain minor amendments were also proposed. It was agreed that the words ‘to a State’ should be added after the word ‘person’ in the revised draft. These words were already present in the French and Russian translations of the draft. It was proposed that the word ‘where’ should be replaced by ‘as long as’ or ‘when’ so as to take into account a lapse of time which had removed the danger of the person concerned being subjected to torture. At the same time, it was felt that the word ‘where’ was adequate to cover such situations.
24 A fundamental change was proposed by the USSR in 1979.25 Paragraph 2 sought to develop and illustrate the concept of ‘substantial evidence’ by citing certain types of situations which arose as a result of State policy and which, in the view of the Soviet delegation, were most conducive to torture practices. Although the lists were not identical, this list was based broadly on those mentioned in GA Resolution 32/130.26 It was not possible to make an exhaustive list of relevant situations. The term ‘colonialism’ was not included because it was encompassed in the broader reference to the ‘suppression of national liberation movements’.
25 Other delegates could not accept the Soviet proposal.27 Concern was expressed that the listing of specific situations might be misinterpreted to imply that there were other situations where torture could be tolerated. It was also said that the main purpose of the Article was to ensure a separate evaluation of the case of each individual, and that it was thus not helpful to refer to general situations. According to the USSR proposal, the aim of Article 3(3) was to ensure that this provision could not be invoked as a pretext for refusing to institute proceedings against persons who have committed the crimes specified. The paragraph would secure punishment for such criminals, but did not oblige States to extradite them to countries where they could be in danger of being subjected to torture.
26 While one delegation proposed that Article 3 be deleted, most delegations were in favour of retaining a provision on this subject.28 However, since no agreement could be reached on the wording of the Article, discussion was suspended to allow further consideration and consultation.29
27 Discussions were resumed in the 1980 Working Group, still based on the revised Swedish draft. The USSR alternative text, which had been proposed in 1979, was reintroduced at the 1980 session. However, as the Soviet proposal caused problems of principle for a great many delegations, attempts were made to find a suitable compromise. In particular, the International Commission of Jurists made such an effort by proposing the following wording of Article 3(2):
For the purposes of determining whether there is such evidence all relevant considerations shall be taken into account, including, where applicable, the existence in the State concerned of a consistent pattern of gross violations of human rights, such as those resulting from a state policy of apartheid, (p. 106) racial discrimination or genocide, the suppression of national liberation movements or the occupation of foreign territory.30
28 At this point, the Working Group turned back to Article 3(1). It was agreed that the words ‘substantial grounds’ in the revised Swedish draft should be rendered in French ‘motifs sérieux de croire’. There was also debate over whether the word ‘would’ should replace ‘may’ which was considered too vague by several delegates. It would be translated ‘estaría’ in the Spanish version.
29 Article 3(1) was thus adopted by consensus as follows with an additional remark in square brackets:
No State Party 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. [‘Some delegates indicated that their States might wish, at the time of signature or ratification of the convention or accession thereto, to declare that they did not consider themselves bound by Article 3 of the Convention, in so far as that Article might not be compatible with obligations towards States not party to the Convention under extradition treaties concluded before the date of signature of the Convention.’]
30 There was disagreement as to whether a second sentence should be added to that rule. Argentina stated that its adherence to the consensus on the first sentence was conditional upon the Working Group’s agreement to an additional sentence. The proposal was to add a subparagraph to paragraph 1 of the Article in order to ensure that States under an obligation to grant extradition in virtue of a treaty could not free themselves unilaterally from that obligation and ‘thus imperil the very institution of extradition’. The proposal was as follows:
If a State which otherwise would be obliged to extradite did not do so for the reasons mentioned, it shall take the necessary measures to bring the person, whose extradition it refuses to grant, to trial.31
31 This proposal created problems for many States that did not necessarily have criminal jurisdiction over the offences concerned. A person whose extradition to another country was refused because of a risk of torture could be suspected of having committed any kind of offence, and the offence would normally have been committed outside the territory of the requested State. In these circumstances, the requested State would often lack criminal jurisdiction, and many States would be unwilling to introduce criminal jurisdiction simply on the grounds that extradition had been refused. The proposal was supported by one delegate but other speakers stated that it would conflict with other national legislation and was liable to raise insoluble problems in some legal systems, including the absence of criminal jurisdiction, lack of evidence, and interference with prosecutorial discretion. The Argentinian proposal was considered to be based on a Latin American practice which was unknown in other parts of the world.32 Such a clause meant that the practice followed by the Latin American countries in extradition matters should not in any way be affected by the provisions of the present Convention.