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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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 November 2021

Subject(s):
Torture — Treaties, interpretation

(p. 98) Article 3  Principle of Non-Refoulement

  1. 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. 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

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

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.

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.

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

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.

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.

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.

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

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. 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. 2.  The meaning of ‘a person’ (see below, 3.3).

  3. 3.  The meaning of ‘to another State’ (see below, 3.4).

  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. 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. 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

Article IV

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

Article 4

No State Party may expel or extradite a person to a state where there are reasonable grounds to believe that he may be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment.

12  Revised Swedish Draft (19 February 1979)16

Article 3

No State Party shall expel, return (‘refouler’) or extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.

13  USSR Draft (7 March 1979)17

Article 3

  1. 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. 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. 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:

  1. (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;

  2. (b)  that States parties should not subscribe to new agreements conflicting with the Convention;

  3. (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.

32  Attempts were made to find a compromise at this point. One delegate proposed the following text:

(p. 107)

A State Party which refuses extradition in the circumstances described in paragraph 1 shall, having regard to its national legislation, institute proceedings against the person whose extradition was refused.33

Another representative suggested that the words ‘having regard to its national legislation’ be replaced by the words ‘if its national legislation so permits’.

33  Sweden put forward the following revised proposal:

A State Party which refuses extradition in the circumstances described in paragraph 1 shall consider, on the basis of its national law, whether to institute criminal proceedings in that State against the person whose extradition was refused.34

34  The International Commission of Jurists suggested the following wording:

If a State Party, which is under a treaty obligation to extradite a person to another State, refuses to do so in the circumstances described in paragraph 1, it shall, if its national legislation so permits, institute criminal proceedings against the person whose extradition it refuses.35

35  No agreement on this matter was reached in the Working Group in 1980. Several representatives then requested that the expression in the International Commission of Jurists’ proposal, ‘if its national legislation so permits’, should be placed in square brackets. Others requested that the proposal be withdrawn altogether. Similarly, there was no agreement on whether there should be a specific remark in the Commission’s report to the effect that some States might wish to make reservations so as not to be obliged to refuse extradition to States not party to the Convention where such extradition was required under already existing treaties.36

36  Discussions in the 1980 Working Group moved back to the Soviet proposal on paragraph 2 which gave a number of examples in which there would be a risk of torture. Opinions were divided. One representative suggested that paragraph 2 should end with the words ‘human rights’ or that the last three lines, which seemed likely to raise problems, be placed in square brackets. A number of speakers suggested the deletion of the entire paragraph or at least those three lines which, in their view, would inject unnecessary political overtones into the Convention and would in practice restrict the scope of Article 3. Other representatives, however, said that the deletion of the last few lines of paragraph 2 was unjustified. In their view paragraph 2 should not only be retained in its entirety, but the words ‘colonialism’ and ‘neo-colonialism’ as used in GA Resolutions 32/130 and 34/46, should be included therein.

37  Several delegations opposed any references to UN General Assembly resolutions in the text of the Convention on the ground that it is not good legal practice to incorporate a non-binding General Assembly resolution in an international convention that imposes binding legal obligations upon States. They stated also that no list of State policies could ever be exhaustive or agreed upon by the Working Group. The USA declared that such a list of State policies would have to include religious persecution, denial of free speech, suppression of political dissent, and the free flow of information, and armed intervention in the affairs of sovereign States.

38  No agreement could be reached on this matter and discussion was deferred for further consideration. The Working Group agreed to put the whole of paragraph 2 in square (p. 108) brackets and to insert therein the proposed terms ‘colonialism’ and ‘neo-colonialism’ as follows:

[For the purpose 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, racial discrimination or genocide, colonialism or neo-colonialism, the suppression of national liberation movements or the occupation of foreign territory.]37

39  Article 3 as adopted by the Working Group in 1980 read as follows:38

  1. 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.

    • Remark: ‘Some delegations 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 the signature of the Convention.

  2. 2)  [For the purpose 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, racial discrimination or genocide, colonialism or neo-colonialism, the suppression of national liberation movements or the occupation of foreign territory.]

40  During the 1981 Working Group no agreement could be reached on maintaining, changing or deleting Article 3(2). Article 3(2), which was in square brackets, contained an illustrative list of consistent and gross violations of human rights.

41  Some delegations stressed the importance they attached to the retention of the illustrative list of consistent gross violations of human rights, proposing that the square brackets be deleted. Others considered that the list should either be deleted or amplified by a reference to other types of violations. Some members favoured the deletion of paragraph 2 in its entirety, finding it to be superfluous. One delegation said that the existence of most of the conditions in the list did not, either logically, legally, or otherwise, constitute grounds to believe that a person would be in danger of being subjected to torture.

42  The discussion was concerned in particular with the retention of the expressions ‘colonialism’ and ‘neo-colonialism’. It was decided to delete the square brackets around these words, on the understanding that the paragraph as a whole remained between brackets.

43  Argentina maintained its earlier position by proposing a footnote reading:

The Working Group agreed that a State Party which refuses extradition in the circumstances described in paragraph 1 shall, if its national legislation so permits, institute criminal proceedings against the person whose extradition it refuses.

(p. 109) 44  Several representatives raised the question of the legal effect of such a footnote in a document such as the Convention. It was suggested that it could more appropriately be included in the Working Group’s report. In view of the difference of opinion, the author of the proposal requested that consideration of the matter be deferred to allow him to engage in consultations.

45  To bring the various language versions into line, the Group decided to replace the words ‘preuves substantielles’, in paragraph 1 of the French text, by the words ‘motifs sérieux de croire’, and the words ‘de telles preuves’, in paragraph 2, by ‘de tels motifs’. In the English text of paragraph 2, the words ‘there is such evidence’ were replaced by the words ‘there are such grounds’ in order to bring the text into line with paragraph 1.

46  At the end of the 1981 Working Group deliberations the text of Article 3, as revised, read as follows:

Article 3

  1. 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.

    Remark: Some delegations 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 the signature of the Convention.

  2. 2)  [For the purpose of determining whether there are such grounds 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, racial discrimination or genocide, colonialism or neo-colonialism, the suppression of national liberation movements or the occupation of foreign territory.]39

47  Once again, no agreement could be reached in the 1982 Working Group. Regarding paragraph 2, some representatives felt that it was important to include in the Convention the proposed illustrative list of gross violations of human rights, which had several precedents in UN resolutions while others maintained that such a list was superfluous. It was again restated that some of the items on the list did not, whether legally or logically, constitute a basis for believing that an extradited person would be subjected to torture. One view was that, if the provisions were kept, references to other types of gross violations should be added. An alternative proposal was to keep the paragraph but to delete all words after ‘gross violations of human rights’. The group decided provisionally to retain paragraph 2 between square brackets and to return to the question at a later stage.

48  During the 1983 session of the Working Group the observer for the United Nations High Commissioner for Refugees (UNHCR) made a statement in connection with the principle of non-refoulement. He pointed out that the application of this principle was not necessarily dependent on general characteristics of the situation in the State concerned but might also be required by considerations relating to the individual case. He felt that the present wording of the second paragraph did not emphasize sufficiently that the situation of the individual should be the ultimate determining factor. The Chairman-Rapporteur observed that the word ‘including’ in the proposed (p. 110) second paragraph made it clear that, apart from the possible existence of consistent patterns of gross violations of human rights, other relevant considerations should be taken into account.

49  Several delegations favoured the deletion of the second paragraph as being superfluous and/or lending itself to abusive interpretations. In this context, some delegates also referred to the remarks made by the observer for the UNHCR. Other delegates, however, considered it important to keep the proposed illustrative list of gross violations of human rights which had, in their view, well-established precedents in UN resolutions. Some delegations, who opposed the deletion of paragraph 2, stated that they would favour deletion of Article 3 in its entirety. Reference was made to the statements of certain delegations during earlier sessions of the Working Group, indicating that their States, at the time of signature or ratification of the Convention or accession thereto, might wish to declare that they did not consider themselves bound by Article 3 CAT.

50  Various proposals were made for amending the proposed paragraph 2, including the ending of the paragraph with the words ‘taken into account’, or the deletion of all the words after ‘gross violations of human rights’. One delegate suggested retaining paragraph 2 up to and including the word ‘apartheid’, in view of the extreme gravity of this crime against humanity which was recognized as such by the United Nations. Some members considered that, if the provisions of paragraph 2 were retained, references to other types of gross violations should be added, such as all forms of religious intolerance, denial of freedom of expression, and denial of the right to form and join trade unions. Another proposal was the insertion, at an appropriate place, of the words ‘of a systematic practice of arbitrary arrest or detention’. Since no consensus could be reached on any of the above proposals, the Working Group decided that paragraph 2 should provisionally be retained between square brackets and that the matter should be reconsidered at a later stage.40

51  In the 1984 Working Group several delegations reiterated again the statement relating to Article 3(1) indicating that their States, at the time of signature or ratification of the Convention or accession thereto, might wish to declare that they did not consider themselves bound by Article 3 CAT. The delegation of Uruguay stated that it did not wish to oppose adoption of Article 3, but that it maintained its view that the inclusion of this article in the Convention was not advisable, since it might be misused by serious criminals to evade prosecution. The delegations of Canada and Spain expressed their disappointment with the fact that paragraph 1 of draft Article 3 referred only to torture and not to other acts of cruel, inhuman or degrading treatment or punishment.

52  The representative of Senegal, pointing out the possible connection between Articles 3 and 7, orally proposed the addition of a safeguard clause at the beginning of Article 3(1), which would read as follows:

Without prejudice to the obligations incumbent on a State under Article 7 of the Convention …

53  Several speakers felt that such an addition was not necessary, because the obligations regarding extradition or prosecution under Article 7 would apply irrespective of any reference to that provision in Article 3. They also observed that Articles 3 and 7 aimed at different categories of persons (Article 3 at persons who might become victims (p. 111) of torture, Article 7 at persons who might have been involved themselves in the perpetration of torture.) In light of these comments the representative of Senegal did not insist on his proposal.

54  Regarding Article 3(2), various suggestions were made along similar lines to those made during previous discussions, such as deleting the paragraph entirely, retaining the paragraph but deleting the illustrative list, and maintaining the illustrative list but modifying its content. It was said that paragraph 2 might offer useful guidance to national courts which might otherwise give too narrow an interpretation of the first paragraph. The delegation of the Federal Republic of Germany, remarking that paragraph 2 seemed to concentrate on the situation in the State concerned rather than the specific risks of the persons involved, orally proposed adding the following sentence:

It shall be decisive, however, that there are in the individual case substantial grounds to believe that the person to be expelled, returned or extradited would be in danger of being subjected to torture.

55  Several delegations felt that such an addition was not necessary given that the draft paragraph already specified that ‘all relevant considerations’ should be taken into account. At a later stage the German delegation announced that it would not insist on its proposal.

56  In order to reach consensus, the representatives of India and Senegal proposed that only the first part of paragraph 2 be retained but that the illustrative list, which many Western delegates took exception to, beginning with the words ‘such as’, be omitted. This proposal was generally acceptable to the Working Group. The Soviet Union drew attention to a difference in the English and Russian versions of the text of Article 3(2). The Russian text spoke of ‘persistent gross and mass violations of human rights’ whereas the English text spoke of ‘a consistent pattern of gross violations of human rights’. While accepting the Indian proposal in principle, the Soviet representative suggested that the English text be brought into line with the Russian text.

57  Several opinions were expressed concerning the meaning of those terms in the practice of the United Nations. After informal consultations the representative of India proposed, as a compromise, to replace the present formula in all languages with the following: ‘a consistent pattern of gross, flagrant or mass violations of human rights’.

58  Another problematic area for several speakers was the ‘passive formulation’ of Article 3(2) which, in their view, did not make it sufficiently clear by whom the relevant considerations should be taken into account. In light of this discussion, and based on the compromise proposal of the Indian delegation, the representative of the UK proposed a formulation according to which ‘the competent authorities’ should take these considerations into account:

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.41

59  At the ninth meeting of the Group, the delegation of the Federal Republic of Germany stated that, in order to assist the Working Group in reaching a consensus on (p. 112) Article 3(2) it would not insist on its proposal for the addition of a new sentence at the end of that paragraph. The Working Group then adopted the text of the paragraph as contained in the proposal of the delegation of the UK. After the adoption of this paragraph the delegations of China, the German Democratic Republic, the Soviet Union, and the USA made explanatory statements for the record.42

60  The representative of the German Democratic Republic stated that it considered the final text, and especially the phrase ‘consistent pattern of gross, flagrant or mass violations’, not fully satisfactory and that his delegation would have preferred the original version of the paragraph or a formulation based on GA Resolution 32/130 which had been adopted by a vast majority of States. He stated that his delegation’s final position on the subject would depend on the results of the debate on the remaining articles and he therefore reserved his right to revert to that question at a later stage.

61  The representative of the Soviet Union said that although he supported the compromise solution, he would have preferred the original version of the paragraph. He attributed great importance to the concept of ‘mass violations of human rights’. In his understanding, the concept of a consistent pattern of human rights violations already implied that such violations occurred on a massive scale. Therefore, the word ‘or’ in the text was not to be interpreted as indicating opposition between the concept of ‘gross’ and that of ‘mass’ violations of human rights. The two concepts were complementary and should be read together.

62  The representative of the USA said that the language in the paragraph under consideration had been taken from ECOSOC Resolution 1503 (XLVIII) as well as from GA Resolution 32/130. Therefore, according to his delegation’s interpretation, paragraph 2 included situations covered by ECOSOC Resolution 1503 (XLVIII).

63  The representative of China stated that although he had agreed to the final text in a spirit of compromise, he would have preferred the listing of examples in paragraph 2, such as a State policy of apartheid, racial discrimination, or genocide. The concept of ‘mass violations of human rights’ should in fact have been qualified by a mention of specific circumstances constituting such violations.43

64  The Summary Record of the Thirty-second meeting of the Working Group44 documents a statement made by the representative of the Federal Republic of Germany to the effect that Article 3 of the draft significantly supplemented the general ban on torture by requiring States parties not to hand over a person by force to any State where he or she would be exposed to the objectively verifiable danger of being subjected to torture. The representative further stated that the current wording was unequivocal and would thwart any attempt to misuse that provision for purposes unrelated to the Convention, such as an endeavour to obtain an unjustified right of residence.

65  In the Summary Record of the Thirty-second meeting, in reference to Article 3(2), the German Democratic Republic drew attention to the fact that they would have preferred the original wording of draft Article 3(2) with its ‘clear political references to apartheid, racial discrimination, genocide, colonialism, neo-colonialism, suppression of national liberation movements and occupation of foreign territory’.

(p. 113) 66  During the Thirty-third meeting the USSR also expressed a preference for the wording of the original text of Article 3, arguing that a decision not to extradite a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture ought to be taken on the basis of sufficiently precise criteria; similarly it would have preferred a somewhat more precise interpretation or definition of the expression ‘a consistent pattern of violations of human rights’ (apartheid, genocide, and so on).

67  Bulgaria reserved the right to express a final position with respect to Article 3, stating that it would have preferred the original version of Article 3(2) and adding that the phrase ‘consistent pattern of gross, flagrant or mass violations of human rights’ did not seem fully satisfactory. Uruguay expressed misgivings concerning Article 3. In the opinion of the delegation, the rules laid down in that draft article should be applicable to any offender, and not merely to torturers. However, in their view, the draft article gave the competent authorities discretionary powers of judgment, thus providing a loophole regardless of the type of crime. Several delegations had also referred to the possibility of making reservations concerning that draft article. The observer for Norway, while stating that his delegation fully supported the text as it stood, stated that he would have preferred that Article 3(1) refer not only to torture, but also to other forms of cruel, inhuman or degrading treatment or punishment.45

68  During the consideration by the plenary Commission in 1984, the Soviet representative argued that the text could be improved in respect of Article 3.46 On 26 March 1984 the UN Secretary-General forwarded the 1984 Working Group report and summary records to the Governments of all States inviting written comments concerning the draft Convention.

69  In written comments Burundi noted that Article 3(1) referred only to torture, and not to other forms of cruel, inhuman or degrading treatment or punishment. Cyprus also stated that while it was not desirable to make amendments at this late stage, certain articles of the Convention, including Article 3, could be improved so as to cover other acts of cruel, inhuman or degrading treatment or punishment. Yugoslavia stated that the manner in which Article 3(1) was formulated could lead to paralysis of the institute of extradition as an important form of international legal assistance in criminal matters, noting that existing practices of international extradition treaties formulate this in a different way by saying that extradition shall be refused ‘on other substantial grounds’, referring thus, first and foremost, to reasons of personal safety of persons whose extradition is being requested, and to torture and other cruel, inhuman or degrading treatment of such persons.47 Yugoslavia also suggested that paragraph 2 should be reviewed since it only ‘paraphrased the provisions of paragraph 1 and should therefore be deleted’.

70  In written comments Togo endorsed the view that it might wish to declare at the time of signature or ratification of the Convention or accession thereto that it does not consider itself bound by Article 3 in so far as that article might not be compatible with obligations towards States not parties to the Convention under extradition treaties concluded before the date of the signature of the Convention.48 Thailand noted that the (p. 114) prohibition against extradition may violate the existing commitment of States parties under particular extradition treaties to which they have been parties before, especially if the requesting State is not a party to this Convention.

71  On 10 December 1984, the plenary of the General Assembly adopted without a vote the draft resolution as submitted to it by the Third Committee.

3.  Issues of Interpretation

3.1  The Absolute Nature of the Prohibition of Refoulement

72  Article 3 provides for an absolute protection against refoulement.49 The prohibition of refoulement is a norm of customary international law50 and according to some also a norm of jus cogens.51

73  Nobody can be excluded from this absolute protection against refoulement: persons who pose a threat to national security and/or have committed serious crimes and who might therefore not be eligible for asylum are equally protected.52 Article 3 ‘affords absolute protection against torture to anyone in the territory of a State party, regardless of the person’s character or the danger the person may pose to society’.53 The Committee also made it clear that ‘no exceptional circumstances whatsoever may be invoked by a State Party to justify acts of torture’.54 It explained that once a person ‘alludes to a risk of torture … the State party can no longer cite domestic concerns as grounds for (p. 115) failing in its obligation under the Convention to guarantee protection to anyone in its jurisdiction …’55

74  The absolute nature of the non-refoulement principle rules out any balancing of interests between the individual right not to be subjected to torture when being forcibly returned and public concerns, such as national security concerns. This is of utmost importance in expulsions, extraditions, and renditions of terror suspects.56 In Agiza v Sweden, concerning an Egyptian citizen found guilty by an Egyptian court of belonging to a terrorist group, Sweden rejected his asylum request on national security grounds which led to the deportation on the same day by a CIA rendition flight. The Committee reiterated ‘that the Convention’s protections are absolute, even in the context of national security concerns, and that such considerations emphasize the importance of appropriate review mechanisms’.57

75  Criminal proceedings against or convictions of a person are not a valid reason to disregard the non-refoulement principle. In this context, the Committee criticized the exclusion of persons with a criminal record from moratoria on the removal of rejected asylum seekers.58 Similarly, indictments and criminal proceedings involving persons accused of religious extremism and terrorist activities cannot be taken to prevail over the rights enshrined in Article 3 CAT, even if the State party invokes regional security.59

76  In the same vein, diplomatic assurances cannot lift the obligation of States parties not to return persons to a country where they are at risk of torture.60 The Committee stressed in its General Comment No 4 (2017) that diplomatic assurances ‘should not be used as a loophole to undermine the principle of non-refoulement’61 and in its case law that they ‘cannot be used as a justification for failing to apply the principle of non-refoulement’.62 In the State reporting procedure, the Committee requested States parties to ‘[r]efrain from the use of and reliance on diplomatic assurances, which should not be used to alter the absolute prohibition of non-refoulement’.63

77  The absolute nature of the principle of non-refoulement should be enshrined and spelled out in national legislation. National legal frameworks must provide for a process of independent review of removal orders and must not include exceptions to the principle allowing, for instance, the expulsion of refugees on the basis of national security.64 The Committee recommended in its State reporting procedure that ‘expulsion and refoulement of individuals should be decided after careful assessment of the risk of being tortured in each case and should be subject to appeal with suspensive effect’.65 (p. 116) The Committee also criticized Stat