Delivered Into Enemy Hands - Human Rights Watch

conflict or emergency, may “opt out” of this obligation. 446 Specifically, under the Conven-
tion against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture), a state violates the treaty not only when it directly inflicts
torture upon a detainee, but also when it sends a person to a country where there are
substantial grounds for believing that they may be subjected to torture. 447 The danger must
be assessed for both the initial receiving state and for subsequent states to which the
person may be expelled, returned, or extradited. 448 The assessment of the risk must take
into account the existence of a consistent pattern of gross, flagrant or mass violations of
human rights. 449 The individual must be given an opportunity to contest the expulsion
before an effective, independent, and impartial body before he can be transferred. 450
The International Covenant on Civil and Political Rights (ICCPR) also mandates that a state
may not expose an individual to the danger of torture or ill-treatment by way of “extradition,
expulsion or refoulement.” 451 Further—though not an absolute prohibition, as some
446 Convention against Torture, art. 2(2); UN Committee Against Torture, General Comment 2, CAT/C/GC/2 (2008),
http://www.unhcr.org/refworld/publisher,CAT,GENERAL,,47ac78ce2,0.html (accessed June 28, 2012), para. 5 (noting that
language in article 2 of the convention stating that “no exceptional circumstances whatsoever may be invoked by a State
Party to justify acts of torture,” means that the prohibition against torture is absolute and non-derogable).
447 Convention against Torture, art. 3. Article 3 states in full:
1. 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.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account
all relevant considerations including, where applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights.
448 UN Committee against Torture, “Implementation of article 3 of the Convention in the context of article 22,” General
Comment No. 1, U.N. Doc. 11/21/1997.A/53/44, annex IX, CAT General Comment No. 1 (General Comments),
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/13719f169a8a4ff78025672b0050eba1?Opendocument (accessed June 26,
2012), para. 2 (“The Committee is of the view that the phrase ‘another State’ in article 3 refers to the State to which the
individual concerned is being expelled, returned or extradited, as well as to any state to which the author may subsequently
be expelled, returned or extradited.”); See also UN Committee against Torture, Korban v. Sweden, U.N. Doc.
CAT/C/21/D/088/1997 (November 16, 1988), para. 6.5, 7.
449 Convention against Torture, article 3(2). See also UN Committee against Torture, Tala v. Sweden, Doc.
CAT/C/17/D/43/1996 (March 7, 1996) para. 10.1.
450 See UN Committee against Torture, Agiza v. Sweden, 233/2003 (May 20, 2005), para. 13.7-13.8 (“the absence of any
avenue of judicial or independent administrative review of the Government’s decision to expel the complainant does not
meet the procedural obligation for effective, independent and impartial review required by article 3 of the Convention”); See
also UN Committee against Torture, Arana v. France, U.N. Doc. CAT/C/23/D/63/1997 (June 5, 2000), paras. 11.5, 12.
451 UN Human Rights Committee, “Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or
Punishment (Art. 7),” General Comment No. 20,
(1992), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument (accessed
June 27, 2012), para. 9. See also UN Human Rights Committee, “Nature of the General Legal Obligation Imposed on States
Parties to the Covenant,” General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (2004)
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