«Urgent need to prevent transfers to torture»

«Urgent need to prevent transfers to torture»

Successful expert briefing on non-refoulement to the UN Committee against Torture

On 6 August 2015 during the 55th session of the UN Committee against Torture, the OMCT organised a thematic briefing on ‘‘Non-refoulement: Addressing practical and legal challenges’’ for the Committee members in order to encourage them to revise their General Comment no. 1 on Article 3 on non-refoulement, which was adopted in 1998 and no longer reflects the realities of the international system. The OMCT called for the development of a clear, comprehensive and systematic set of guidelines on how to enforce the prohibition of refoulement and how to put in place effective remedies against it – including reparation. For a broader understanding of the principle of non-refoulement in relation to the Committee against Torture, please see the attached background paper on Article 3 of the Convention.

On the occasion of this briefing to the Committee against Torture, the OMCT invited the participation of international experts, including Dr. Fabián Salvioli, the Chairperson of the UN Human Rights Committee, Dr. Mark Villiger, Judge of the European Court of Human Rights, and leading civil society experts Carla Festmann, Director of Redress, and Ian Seiderman, Head of Legal Policy at the International Commission of Jurists.

The discussions set out the legal framework of the principle of non-refoulement under comparative human rights law, the implementation of fundamental preventive safeguards and the reinforcement of effective national and international remedies against return. Another key topic was the numerous legal policy challenges posed by counter-terrorism laws and practices in the post 9/11 context. States have sought to limit or circumvent this fundamental principle of non-refoulement and have transferred persons to countries where there is a real risk of torture. However the Committee against Torture has reaffirmed on numerous occasions the absolute nature of the principle of non-refoulement. States must not apply any exception based on national security concerns and counter-terrorism policies. In this context, discussions also evolved around diplomatic assurances. States should not rely solely on diplomatic assurances as a guarantee that an individual will not be subject to torture as they are inherently unreliable. Rather, diplomatic assurances can only be accepted exceptionally and under strict requirements such as follow-up measures to monitor the return or effective protection and prevention mechanisms against torture in the receiving country.

The Committee members and experts also debated the applicability of the principle of non-refoulement to cases of cruel, inhuman or degrading treatment (CIDT). The Committee has expressed that refoulement must be denied in cases of potential CIDT, as has been made clear in numerous Concluding Observations, as well as in the Committee’s General Comment no. 2, which states that Article 3 is “obligatory as applied to both torture and ill-treatment.” However, General Comment No. 1 does not reflect this new understanding of the scope of non-refoulement. Throughout the discussions during the briefing it was made clear that General Comment no. 1 is out-dated and the experts highlighted that it would be misleading for States as well as petitioners to follow the guidelines set out in it.

At the end of the 55th session, the Committee against Torture has unanimously decided to revise its General Comment no. 1 on Article 3 of the Convention. A working group of four (4) Committee members has also been formed in order to work towards the creation of this new General Comment. Thus, the OMCT hopes that the revision of this General Comment will allow for the full articulation of the current practices and jurisprudence of the Committee against Torture in order to create a resource for actors who must take decisions on refoulement cases under Article 3 of the Convention.

 

Article 3 Background Paper

 

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