Amnesty International/Reprieve conference: Non-refoulement and outsourcing torture
Amnesty International/Reprieve conference: Non-refoulement and outsourcing torture
Presentation by Boris Wijkström, Organisation Mondiale Contre la Torture (World Organisation Against Torture) Legal Advisor at the Amnesty International/Reprieve Conference: The Global Struggle Against Torture: Guantánamo Bay, Bagram and beyond, 19-21 November 2005
Thank you Chair,
I would like to thank the conference organizers, Amnesty International and Reprieve for arranging this important event and inviting me to address this distinguished Panel and audience on the important topic of Outsourcing Torture.
I will devote the time I have to the issue of non-refoulement, which in many ways constitutes the backdrop or background, if you will, to the subject of outsourcing torture. As you will have noted, the specific issues addressed by this panel are Renditions, Memoranda of Understanding, Diplomatic Assurances and Evidence extracted under torture. All of these practices in some respects involve, or implicate a violation of the absolute prohibition of non-refoulement.
The practice of renditions, whereby an individual is handed over by the authorities of one state to the authorities of another state, in secret, and without any formal process, constitutes by definition a violation of the right not to be returned to torture. The Committee against Torture has ruled on this issue in the case of Josu Arkauz Arana v. France, which involved a member of the Bask separatist organization ETA finding that rendition can so significantly heighten the risk of torture as to bring the claim within the purview of article 3 of the Convention against Torture, even in the context of a country which does not practice torture systematically against detainees. The reasoning in this case leads one to conclude that the Committee would not have found a violation had the French authorities afforded the applicant in that case proper procedures which would have allowed him to raise a claim to protection under article 3 of CAT.
Similarly, diplomatic assurances are used by states to refoule persons to other states where there is a real risk of torture, because in the absence of such a clear risk diplomatic assurance would not be necessary. Here also, the Committee against Torture has had an opportunity to pronounce itself on these practices in the recent case of Agiza v. Sweden where it stated that that the procurement of diplomatic assurances did not suffice to protect the applicant against the manifest risk of torture.
And lastly, regarding evidence extracted under torture and other ill-treatment, such evidence is often extracted in situations where persons have been rendered or otherwise returned to other countries in violation of the non-refoulement rule, often deliberately so that the state of destination can extract evidence through torture and share it with the state that returned the individual. One example of this practice is the well known case of Maher Arar where it appears that the objective of the US authorities in returning him to Syria, rather than to Canada, which they could have done, was specifically in order that information be extracted from him in Syria by means which the US or Canadian authorities were more reluctant to use.
In the witness testimony which will be presented during this conference we will undoubtedly hear directly from persons who have been victims of all of these practices which I have just mentioned.
Considering that a common thread uniting all of these issues is the absolute prohibition on return to torture it is worth dwelling for a moment on its content and scope, before discussing in detail, as my colleagues on this panel will do, the means by which states have systematically sought to circumvent it in recent years.
The Non-Refoulement Prohibition is Absolute
International law absolutely prohibits states from returning persons to a country where they face a real risk of torture, or other cruel, inhuman or degrading treatment. The prohibition is now recognized to be a part of the general and absolute prohibition of torture and as part of this general prohibition it is binding on all states at all times regardless of whether the state in question has or has not ratified a treaty which specifically prohibits it.
In his report to the UN General Assembly of 2001 the UN Special Rapporteur on Torture, Sir Nigel Rodley stated that the prohibition of torture imposes on states not only a duty not to torture, but also a positive duty to “prevent such acts by not bringing persons under the control of other States if there are substantial grounds for believing that they would be in danger of being subjected to torture”. This approach has been echoed by all the relevant international bodies including the European Court of Human Rights, the Committee against Torture, and the Human Rights Committee and others. This principle has been perhaps most clearly expressed in the jurisprudence of the European Court, for instance in the Soering judgement where the Court identified the non-refoulement prohibition as an ‘inherent obligation’ under Article 3 of the European Convention.
As such the non-refoulement prohibition is absolute and does not permit of countervailing considerations or exceptions. That is, where an individual has shown that there are substantial grounds for believing that he or she faces a “real” risk of torture if returned, then the non-refoulement rule operates to prevent the person’s return in all cases.
International human rights mechanisms have therefore consistently held that the individual’s conduct, however dangerous or reprehensible, is not a material consideration in determining whether a State is obliged to refrain from expelling him or her under the non-refoulement prohibition. The Committee against Torture, the Special Rapporteur on Torture, and other bodies as well as eminent legal experts have referred to the jurisprudence of the European Court of Human Rights, notably the case of Chahal v. United Kingdom as the international standard in this regard.
In conclusion, I would like to get back to the point I made at the beginning, which was that the practices which my colleagues on the panel are going to speak about today, all constitute means by which states have increasingly sought to circumvent the non-refoulement prohibition. In this regard, one might characterize these efforts as indirect challenges to the rule, because they don’t seek to challenge the rule as such but rather, they seek to get around it. The secrecy surrounding for instance the United States renditions programme clearly demonstrates an awareness on the part of the US authorities that the activity is in fact illegal.
However, what we might see more of in the future, if one is allowed to speculate, are perhaps more direct challenges to the rule. In this connection, it may be worth recalling the case of Chahal v. U.K. This case involved the expulsion of a Sikh militant to India, where the European Court found that his deportation would constitute a violation of article 3. In doing so, the Court rebutted the State Party’s arguments that Chahal posed a security threat holding that the prohibition of refoulement does not admit of countervailing considerations and consequently that the conduct of the applicant however threatening or reprehensible was not material to the determination of whether his claim came within the scope of article 3.
We also recall, however, that in this critical decision there was a dissenting opinion joined by no less than 7 judges of the Grand Chamber of the European Court. These dissenting judges argued that non-refoulement cases are in fact different from other article 3 cases because in non-refoulement cases the prohibited act of torture is hypothetical and it is not done by a Contracting Party to the Convention, rather it is done abroad. The dissenting opinion concluded that non-refoulement cases should therefore be treated differently, and that the State in question should in fact be allowed to balance the detriment to the individual against any threat posed by the individual to the State concerned.
In the years ahead we may see increasing pressure from European states to convince the Court that the standard set by Chahal is in fact too high in the context of the serious threat that they are facing from terrorism, and that, instead, the proposition of the dissenting judges in Chahal is where the bar should be set. It will become increasingly important for us as advocates to avert this development in addition to challenging and calling states to account for the practice of renditions and the use of diplomatic assurances, memoranda of understanding and evidence derived under torture.