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:
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):
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: