Committee against Torture discusses revised General Comment on non-refoulement with States and civil society

Committee against Torture

28 April 2017

The Committee against Torture this morning engaged in a general discussion on a draft revised General Comment N°1 of 1997 on article 3 of the Convention, which was being considered in the context of article 22 on individual communications.

Jens Modvig, Committee Chairperson, noted that, at its fifty-fifth session in July and August 2015, the Committee had decided to revise its General Comment N°1 on article 3 of the Convention.  The first draft revision had been adopted in December 2016, and a comprehensive consultation process had been launched in February 2017.  Draft revised General Comment is available on the Committee website, including in French and Spanish.  The English version can be accessed here.

The Committee actively encouraged States, specialized agencies, human rights mechanisms, and civil society including non-governmental organizations and academia to contribute to this process, and to date it had received written submissions by 18 States parties, one joint submission by four States parties, five submissions by the specialized agencies and human rights mechanisms, 11 submissions by civil society organizations, three submissions by academia, and one by the Office of the High Commissioner for Human Rights.

In the discussion that followed, States parties agreed that diplomatic assurances should not be as a loophole to undermine the principle of non-refoulement provided for in article 3, and that they would not be appropriate in certain cases, but they also disagreed with the introduction of blanket ban on their use.  Diplomatic assurances had to be permissible provided that they met the strict criteria, such as those defined by the European Court of Human Rights: they had to be credible and reliable, explicit and specific, and binding upon the institutions of the State.

Civil society organizations underlined that diplomatic assurances undermined the Convention, as  they replaced the general, universal prohibition of torture that was at the heart of the Convention, by a specific, individualized prohibition of torture.  In other words, it was acceptable to torture, as long as it was not the one person who was the subject of diplomatic assurances.  Further, diplomatic assurances could only work in States in which the Government had full control over police or other officials who tortured prisoners.

The principle of non-refoulement was of crucial importance in the contemporary migratory context, and several speakers urged the Committee to more efficiently highlight the prohibition of secondary non-refoulement and provide detailed guidance for the implementation of due process and remedy.  Revised General Comment should also stress that detention of migrants needed to be used only as a last resort and for a period as short as possible, while requiring that alternative detention was used for victims of torture and persons in need of international protection.

Speaking were the following States parties: Australia, Denmark, United Kingdom, United States, China, France, Norway, Finland, Latvia, Spain, Ireland and New Zealand.  Also speaking were the United Nations Refugee Agency and Office of the High Commissioner for Human Rights, as well as the following non-governmental organizations:  World Organization against Torture, Redress Trust, Amnesty International, International Rehabilitation Council for Torture Victims, Open Society Justice Initiative, International Service for Human Rights, International Lesbian, Gay, Bisexual, Trans and Intersex Persons, Alkarama Foundation, International Disability Alliance, and the International Commission of Jurists.

The next public meeting of the Committee will take place on 2 May 2017 at 10 a.m. to start the consideration of the combined third to fifth periodic report of Republic of Korea (CAT/C/KOR/3-5).

Opening Statement

JENS MODVIG, Committee Chairperson, provided the background to the revision of the Committee’s General Comment N°1 of 1997 on article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the principle of non-refoulement.  In February 2017, the Committee had launched a comprehensive consultation process on draft general comment which had been posted on its website and accompanied with translation to French and Spanish.  The Committee had actively encouraged States, specialized agencies, human rights mechanisms, and civil society including non-governmental organizations and academia to actively contribute to this process. 

To date, the Committee had received written submission by 18 States parties and a joint submission by four States parties, five submissions by the specialized agencies and human rights mechanisms, 11 submissions by civil society organizations, three by academia and one by the Office of the High Commissioner for Human Rights.

Statements by States Parties

Australia said that the United Nations human rights treaty bodies should interpret human rights obligations consistently with one other, and Australia considered that the interpretation of article 3 in the draft General Comment was inconsistent with the long-standing interpretations of that obligation.  There was a concern that the draft General Comment sought to expand the scope of non-refoulement under article 3 to conduct or to acts that did not constitute torture.

Denmark stated that ending torture and assisting victims of torture was its long-standing commitment, and the Committee had a crucial role to play in that regard.  The draft General Comment should look deeper into the distinction between the practice and legal obligations under the Convention.  Denmark looked forward to the fruitful discussion.

United Kingdom understood that the Committee wanted to avoid situations in which diplomatic assurances were used as loopholes in the non-refoulement but suggested that that could be addressed through a specific statement on the issue rather that a general opposition to diplomatic assurances, which was now contained in the draft General Comment.  On non-State actors, the United Kingdom could not accept that they were subject to the same international obligations as States and stressed that they could not be parties to the Convention.  Instead, non-State actors were bound by domestic law including criminal law.

United States disagreed that diplomatic assurances were inherently contrary to the principle of non-refoulement provided for in article 3 and urged the Committee to reconsider its sweeping conclusions on this topic.  Actions by a private, non-State actor that were not at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, did not constitute torture for purposes of the Convention. 

China noted that the Committee had not been authorized by the Convention to make general comments on the nature of the interpretation of the Convention, but rather on the reports submitted by States parties on the measures taken to implement the Convention.  In making general comments, the Committee should bear in mind the scope of its mandate, avoid liberal interpretations of the Convention, and not impose extra obligations on States parties.

France recognized the importance of developing the doctrine on the interpretation of article 3 and the implementation of the principle of non-refoulement.  The concept of diplomatic assurances was not contrary to the principle of non-refoulement; France thus considered that recourse to diplomatic assurance should not be categorically rejected.  Diplomatic assurances should meet the strict criteria defined by the European Court of Human Rights.

Norway welcomed the efforts of the Committee to interpret the Convention through its general comments.  The Committee should ensure that the general comment was consistent with widely accepted and long-standing interpretations of article 3.  The draft general comment should also consider the understood interpretation of obligations of States parties.

Finland considered that, in the context of a decision to remove a person from the country, the appeal to that decision should not carry an automatic suspensive effect; rather, any allegation about risk of torture should be investigated carefully and impartially.

Latvia disagreed with the introduction of blanket ban on the use of diplomatic assurances in the draft general comment, as it did not take into account the obligation of States in the implementation of the Convention and in the fight against impunity.  Diplomatic assurances needed to be permissible provided that they were credible and reliable, explicit and specific, and binding upon the institutions of the State. 

Spain considered that diplomatic assurances by States could constitute adequate protection against torture if they meet the criteria established by the jurisprudence of the European Court of Human Rights.  They had to be specific, issued by a competent authority, and there had to be a possibility of their verification in the receiving State.  The sending State had the responsibility to assess the quality of those assurances.

Japan agreed that diplomatic assurances should not be used as a loophole to undermine the principle of non-refoulement.  However, when used properly by States, diplomatic assurances could be effective in the implementation of article 3.

Egypt said that the draft general comment should consider the use of efficient, serious and credible diplomatic assurances by States in the implementation of the principle of non-refoulement. 

Ireland agreed that diplomatic assurances should not be as a loophole to undermine the principle of non-refoulement provided for in article 3, and that they would not be appropriate in certain cases.  However, when properly utilised, diplomatic assurances could help ensure compliance with article 3 of the Convention and international human rights standards.  Thus, Ireland disagreed that diplomatic assurances were inherently contrary to the principle of non-refoulement provided for in article 3.

New Zealand considered that diplomatic assurances should be permissible, and suggested that the text referring to the death penalty in draft general comments should be expressed more specifically.  New Zealand inquired about the Committee’s position on whether the death penalty per se constituted prohibition of torture, ill-treatment and cruel and degrading punishment.
 
Statements by Specialized Agencies and Non-Governmental Organizations

United Nations Refugee Agency said that the principle of non-refoulement was the cornerstone of international human rights law and, underlining extraterritorial obligations of States in the application of that principle, added that the arrival of a large number of people to States’ borders should not be used as an excuse for refoulement.  Further, diplomatic assurances could not be used as a loophole to undermine the principle of non-refoulement.

Office of the High Commissioner for Human Rights stressed the crucial importance of the principle of non-refoulement in the contemporary migratory context, and said that it was important to provide guidance on the implementation of that principle.  In its general comment, the Committee should more efficiently highlight the prohibition of secondary non-refoulement and provide detailed guidance to the implementation of due process and remedy.

World Organization against Torture addressed immigration detention, and said that States should neither systematically nor indefinitely resort to detention pending proceeding arising from claims under article 3.  The Committee should stress in its general comment that detention in that setting had to be used only as a last resort and for a period as short as possible while requiring that alternative detention was used for victims of torture and persons in need of international protection.

Redress Trust said that the forthcoming general comment would be crucially important tool for States parties as it would provide guidance on the full scope of their obligations in relation to the prohibition of refoulement.  The general comment should clearly set out the obligations of States to provide remedy when article 3 was breached, and should specifically refer to the concepts of “effective remedy” and “reparation”. 

Amnesty International said that diplomatic assurances undermined the Convention;  the general, universal prohibition that was at the heart of the Convention was replaced by a specific, individualized prohibition.  By accepting diplomatic assurances, the sending state recognized that the receiving state engages in torture, which is acceptable as long as it did not torture that one person for who the assurance had been given.  Diplomatic assurances could only work in states where torture was systematic, in a sense that the government had full control over police or other officials who tortured prisoners; otherwise, diplomatic assurances were useless.

International Rehabilitation Council for Torture Victims stressed the obligation to offer victims of torture to a medical examination as prescribed by the Istanbul Protocol.  Torture caused long-lasting and deep trauma and returning persons had to therefore have access to adequate support, not only in terms of appropriate health services but also in terms of access to effective legal system.

Open Society Justice Initiative expressed concern about the scope of protection in article 3.  The general comment should ensure broad interpretation of terms “expel, return (refouler) or extradite” and include all types of obligatory transfers including for example the practice of extraordinary rendition.  The Committee should further make clear that an individual being forcibly transferred from one State to another needed not cross an international border for non-refoulement protections to apply.

International Service for Human Rights said that the draft general comment represented an opportunity to recognize and protect migrant rights defenders.  The Committee should include in the draft a new paragraph which recognized the vital role of human rights defenders in protecting rights of refugees, migrants and asylum seekers and international promoting and monitoring State compliance with the Convention.  It should also highlight the obligations of States to protect them from reprisals.

International Lesbian, Gay, Bisexual, Transgender and Intersex Persons welcomed the inclusion of sexual orientation and gender identity as an indication of personal risk in the draft general comment.  In order to make it more comprehensive, it should include a reference to victims’ pain and suffering and refer to specific risks to which lesbian, gay, bisexual, transgender and intersex persons were exposed.

Alkarama Foundation said that the use of corporal punishment by the receiving State should be included as a pertinent indicator of risk of torture.  The Committee should also address in its draft general comment the issue of indefinite detention of persons subject to extradition request of procedure.

International Disability Alliance said that the Committee should ensure that the risk of forced institutionalization of persons with disabilities, which continued to be widespread practice that lead to many human rights violations including torture and ill-treatment, had to be included in the assessment of risks in refoulement.

International Commission of Jurists stressed that prohibition of refoulement bound all States parties, whether or not they had made a declaration under article 22.  The revised general comment should therefore address States parties’ non-refoulement under the Convention as a whole and not  exclusively in the context of article 22 communication.

Interactive Discussion

In the interactive discussion that followed, on the issue of extraterritoriality, a civil society speaker said that this was a legal obligation which should not be left as a policy choice of States. 

Concerning the wording in draft paragraph 18 on medical examination, a state representative said that if the Committee would shift from a recommended best practice to a binding obligation of States, than the wording in the whole paragraph needed to be examined as well.

With regard to the issue of diplomatic assurances, a Committee Expert said that the main question in the discussion was how to guarantee that diplomatic assurances were credible, and what a follow-up mechanism could be.  A civil society speaker said that no one was blind to the issues of security risks and stressed the importance of prohibiting torture in general rather than torture of that one person.

Several speakers stressed that the obligation of non-refoulement applied to all States and not only to those who accepted the competence of the Committee under article 22 to receive individual communications.

Several States had invoked in their written submissions exceptional circumstances such as threats to public health, state security or public morality, as grounds on which torture and ill-treatment could be derogated; speakers warned about the danger that represented to the Convention’s principle of absolute prohibition of torture.

Concluding Remarks

JENS MODVIG, Committee Chairperson, thanked all participants and asked for their understanding that the drafting process took time, as did the wide consultation process the Committee had put in place.

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