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and Sweden. States have resorted to diplomatic assurances in order to implement
their anti-terrorism policies of deportation of individuals considered a threat to
national security without violating the principle of non-refoulement. 10
The various human rights protection regimes 11 link the prohibition of torture
and other inhuman or degrading treatment to an obligation not to proceed to the
extradition, expulsion, deportation or other type of (extra-legal) transfer of
individuals to their country of origin or any other country if they will face there a
real risk of torture or ill-treatment (principle of non-refoulement). 12 This additional
obligation purports to reinforce the prohibition of torture by denying states the
faculty to circumvent it without committing torture themselves by sending
individuals to other countries, where they would be subjected or be likely to be
subjected to torture. Any other understanding would risk to seriously compromising
the effectiveness of the prohibition of torture. 13
It should be also noted that the prohibition of torture and the principle of
non-refoulement are of an absolute nature. This means, on the one hand, that they are
non-derogable in times of war or public emergency 14 , and, on the other hand, that
there can be no exception to them or any relaxation justified by the extraordinary
circumstances of a case or the activities of the concerned individual. 15 As the ECHR
has recently affirmed,
“it is not possible to weigh the risk of ill-treatment against the reasons put
forward for the expulsion in order to determine whether the responsibility of a
State is engaged under Article 3...In that connection the conduct of the person
10
For the legal framework in the US, see Diplomatic Assurances, Statement for the Record by John B. Bellinger,
III, Legal Advisor to the Secretary of State, Before the House Foreign Affairs Subcommittee on International
Organizations, Human Rights, and Oversight, 10 June 2008, available at http://foreignaffairs.house.gov/
110/bel061008.htm.
11
The scope of the ICCPR, the CAT and the ECHR is not identical as far as the prohibition of torture is
concerned. The ICCPR and the ECHR do not explicitly provide for the prohibition to expose someone to the
danger of being subjected to torture upon expulsion, return or extradition to another State, but the principle of
non-refoulement has been recognized by the Human Rights Committee in its 2 nd General Comment on Article 7
of the Covenant (see General Comment 20, Article 7 (Forty-fourth session, 1992), UN Doc. HRI/GEN/1/Rev.1
at 30 (1994), § 9) and by the ECtHR in numerous cases starting from Soering v. UK, ECtHR, decision of 7 July
1989, Application No. 14038/88, Ser. A No. 161 = 11 EHRR, pp. 439 et seq. On the contrary the CAT provides
explicitly for the principle of non-refoulement (Art. 3), which only applies to the prohibition of torture (Art. 1)
and does not extend to cruel, inhuman or degrading treatment prohibited in Art. 16 CAT. In addition to this,
the acts of torture and cruel, inhuman or degrading treatment are punishable in the CAT only if committed by
state officials. See the observations of Nowak, Manfred and McArthur, Elizabeth, THE UNITED NATIONS
CONVENTION AGAINST TORTURE: A COMMENTARY, 2008, Oxford, Oxford University Press, pp. 165 et seq.
12
See Art. 3§1 of the CAT: “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”.
13
See the observations of the European Court of Human Rights in Soering v. United Kingdom, judgment of 7
July 1989, ECtHR, Ser. A No. 161 = 11 EHRR, pp. 439 et seq., §§ 87-88.
14
See, for example, Art. 15§§1-2 of the ECHR; Article 4§§1-2 of the ICCPR.
15
See Duffy, Aoife, Expulsion to Face Torture? Non-refoulement in International Law, 20 International Journal of
Refugee Law (2008), pp. 373-390, passim; Arbour, Louise, In Our Name and On Our Behalf, 55 ICLQ (2006), pp.
511-526, at 517-518.
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