UUI, Alm.del - 2017-18 - Endeligt svar på spørgsmål 453: Spm. om oplysning om den præcise dato for ministeriets bidrag i marts 2017 til Justitsministeriet til brug for udfærdigelsen af Danmarks bemærkninger til General Comments til FN’s Torturkomité, til udlændinge- og integrationsministeren

Udlændinge- og Integrationsudvalget 2017-18
UUI Alm.del
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Joint Observations of Canada, Denmark, the United Kingdom,

and the United States of America

on Paragraphs 19-20 of the Committee Against Torture’s

Draft General Comment No. 1 (2017)

on Implementation of Article 3 in the Context of Article 22

March 31, 2017

1. Canada, Denmark, the United Kingdom, and the United States appreciate the opportunity to

respond to draft General Comment No. 1 regarding the implementation of Article 3 in the

context of Article 22 of the Convention Against Torture and Other Forms of Cruel, Inhuman, or

Degrading Treatment or Punishment (“the CAT”), and thank the Committee for its significant

work on this project. We are firmly committed to fulfilling our obligations under the CAT, and

we believe that the obligations of States Parties under Article 3 provide important protections for

persons around the world.

2. Canada, Denmark, the United Kingdom, and the United States in particular welcome the

Committee’s invitation set out in its footnote 11 for relevant stakeholders to provide comments

on paragraphs 19 and 20.

This Joint Submission provides the views of the aforementioned

States Parties on paragraphs 19-20, to the extent that our views are consistent, without prejudice

to other comments that each of these States Parties may provide individually on the rest of the

draft General Comment, or on paragraphs 19-20.

3. It is the view of these States Parties that paragraphs 19 and 20 of the draft General Comment

do not reflect the current practice of many States Parties to the CAT, and that the treatment of

diplomatic assurances in the draft General Comment should take into consideration the many

circumstances in which States Parties may use them to promote respect for the prohibition on

torture and consistent with their obligations under Article 3.

4. Regarding paragraph 20, these States Parties also do not agree with, and are not aware of an

accepted basis for, the assertion that diplomatic assurances are inherently “contrary” to the

principle of non-refoulement provided for in Article 3. Although we agree with the Committee

that assurances must not be used as a loophole to undermine the principle of non-refoulement,

we note that when used appropriately, diplomatic assurances have served as an effective tool for

States Parties to help ensure compliance with Article 3, including as a means of confirming that

an individual would not face torture in a receiving State.

5. First, paragraph 20 refers specifically to assurances

provided by a State Party to the CAT.

Although the circumstances of every case must be assessed individually, it cannot as a logical

matter be

per se

unlawful for a State Party to transfer

an individual to another State Party with

an assurance that the receiving State Party will comply with its preexisting CAT obligations.

Footnote 11 states that “The Committee intends to further elaborate on the issue of diplomatic assurances in future

sessions after receiving comments from relevant stakeholders on this issue.”

For purposes of this document, we refer to “expel, return (‘refouler’) or extradite” as used in Article 3 collectively

as “transfer” for ease of reading.

UUI, Alm.del - 2017-18 - Endeligt svar på spørgsmål 453: Spm. om oplysning om den præcise dato for ministeriets bidrag i marts 2017 til Justitsministeriet til brug for udfærdigelsen af Danmarks bemærkninger til General Comments til FN’s Torturkomité, til udlændinge- og integrationsministeren

Reaffirming CAT obligations is consistent with the object and purpose of the CAT, which is to

“make more effective the struggle against torture and other cruel, inhuman or degrading

treatment or punishment throughout the world.”

The Committee’s recommendation as it stands

may actually undermine the efforts of States Parties in certain situations to promote respect for

the prohibition on torture in the context of transfers, both in an individual case and by

encouraging improved standards more generally.

6. Second, as matter of practice, some States Parties might seek diplomatic assurances as a

purely prudential matter, even in the absence of particular concerns that the individual in

question is at risk of torture. This may be done for a variety of policy reasons, including to

emphasize to a receiving State the importance that the transferring State Party places on humane

treatment generally, independent of whether the transferring State Party has reached the

conclusion that the specific individual in question may be in danger of being subjected to torture.

7. Third, as noted above, we agree with the Committee that diplomatic assurances cannot be

used as a “loophole” to undermine the principle of non-refoulement, and we do not view them as

appropriate in all cases. We strongly reject the suggestion that all transfers accompanied by such

assurances are contrary to Article 3. Indeed, diplomatic assurances can be used precisely so as to

avoid breaching the principle of non-refoulement. Article 3 itself states that “[f]or the purpose of

determining whether there are [substantial] grounds, the competent authorities shall take into

account

all relevant considerations”

(emphasis added). We do not agree that the commitments

of a receiving State with regard to humane treatment of the individual or individuals to be

transferred cannot constitute a “relevant consideration” for the purposes of Article 3. The

essential question in evaluating any particular use of diplomatic assurances is whether, taking

into account the content of the assurances, their credibility and reliability, and the totality of

other relevant factors relating to the individual and the government in question, there are

substantial grounds for believing that the individual would be in danger of being tortured in the

country to which he or she is being transferred.

See, e.g.,

CAT Preamble.

In this context, we note that several courts have accepted the use of diplomatic assurances with respect to

compliance with Article 3 of the CAT and similar treaty provisions, even if, in individual cases, they have

determined the specific assurances provided to be insufficiently reliable. For example, the European Court of

Human Rights, in applying Article 3 of the European Convention on Human Rights, has relied upon assurances from

receiving States in assessing the risk of torture or ill-treatment for a particular individual post-transfer.

See, e.g.,

Othman (Abu Qatada) v. United Kingdom,

App. No. 8139/09, ¶¶ 183-207 (Eur. Ct. H.R. 2012) (describing the

factors to assess whether particular assurances may be relied upon in discharging obligations under Article 3 of the

European Convention);

Babar Ahmad and Others v. the United Kingdom

- 24027/07, Judgment 10.4.2012 (finding

that the United Kingdom would not violate Article 3 of the European Convention by transferring certain individuals

to the United States, based in part on information and assurances provided to the United Kingdom by the United

States concerning the treatment those individuals would receive upon transfer);

see also RB (Algeria) and OO

(Jordan) v. Sec’y of State for the Home Dep’t

[2009] UKHL 10 (describing criteria used in United Kingdom for

determining reliability of assurances);

BB v. Sec’y of State for the Home Dep’t,

SIAC, SC/39/2005 (2006) (same);

Khouzam v. U.S. Att’y Gen.,

549 F.3d 235, 254-55 (3d Cir. 2008) (“We

do not find it unreasonable for the [U.S.

Department of Justice] to create a procedure for making an individualized determination, in every case, as to

whether particular diplomatic assurances are sufficient to permit removal under [a U.S. statute giving domestic legal

effect to Article 3 of the CAT]. If, in fact, a particular country under consideration has an egregious record of

torture, the regulations would require the Government to take such factors into account. Thus, we reject Khouzam’s

argument that the diplomatic assurances from Egypt are categorically insufficient under [the statute] and its

implementing regulations.”). Moreover, in the cases that the Committee cites in footnote 12, the Committee itself

8. With respect to the definition of diplomatic assurances in paragraph 19, the Committee should

account for the fact that, in practice, such assurances may include an express commitment by the

receiving State to permit monitoring by the transferring State Party or by an independent third

party for the purpose of verifying that the individual is being treated humanely, rather than

simply an “undertaking” by the receiving State. Such monitoring mechanisms are intended to

ensure that any diplomatic assurances can be verified as a safeguard against torture. Diplomatic

assurances may be relied upon by a transferring State Party as one consideration in determining

whether there are substantial grounds for believing that an individual would be in danger of

being subjected to torture in the receiving State.

9. In light of these observations, these States Parties recommend that the Committee reconsider

its sweeping conclusion in paragraph 20, and focus instead on the risk that diplomatic assurances

could be used to undermine the principle of non-refoulement in certain circumstances. We urge

the Committee to acknowledge that diplomatic assurances that are used properly and that are

assessed to be credible and reliable can appropriately be considered as one factor in the analysis

conducted by the transferring State Party as to whether there are substantial grounds for

believing that an individual would be in danger of being subjected to torture in the receiving

State.

did not prohibit the use of diplomatic assurances altogether, but instead determined that the assurances provided in

those cases were insufficiently reliable to ensure compliance with the respective States Parties’ Article 3 obligations.

The Committee adopted that approach in subsequent communications.

See, e.g., Abichou v. Germany,

Communication No. 430/2010, ¶ 11.7 (U.N. Comm. Against Torture) (May 21, 2013) (“The fact that diplomatic

assurances were obtained was not sufficient grounds for the State party’s decision to ignore this obvious risk,

especially since none of the guarantees that were provided related specifically to protection against torture or ill-

treatment.”).