67. Where there is a risk of torture, a deporting country may receive ‘diplomatic
assurances’ that the individual will not be tortured on return. For example, in a
case involving the deportation of an Egyptian suspected of terrorism to Egypt,
the Human Rights Committee rejected Sweden’s reliance on diplomatic
assurances stating that it had not ‘shown that the diplomatic assurances
procured were in fact sufficient in the present case to eliminate the risk of illtreatment to a level consistent with the requirements of article 7 of the
Covenant. The author's expulsion thus amounted to a violation of article 7 of
the Covenant’.389
68. On numerous occasions, the Human Rights Committee has emphasised its
position in relation to refoulement. For example, the Committee has stressed
that it was, ‘concerned about the formulation of the draft law on the legal status
of foreigners, which…may allow for the removal of foreigners who are regarded
as a threat to State security, despite the fact that they may be exposed to a
violation of their rights under [ICCPR] Article 7 in the country of return’.390
69. The Committee has also emphasised that Security Council Resolution 1373391
does not give permission to violate human rights. It has pointed out that, ‘the
State Party is requested to ensure that counter-terrorism measures, whether
taken in connection with Security Council resolution 1373 (2001) or otherwise,
are in full conformity with the Covenant. In particular, it should ensure absolute
protection for all individuals, without exception, against refoulement to countries
where they risk violation of their rights under article 7’.392
70. Significantly, the Human Rights Committee has criticised States parties for not
ensuring that those who are returned are protected from torture, inhuman and
degrading treatment. For example, the Committee has noted that, ‘…nationals
suspected or convicted of terrorism abroad and [returned] have not benefited
in detention from the safeguards required to ensure that they are not ill-treated,
having notably been held incommunicado for periods of over one month
(Articles 7 and 9 of the Covenant)’.393
71. The Special Rapporteur on Torture has similarly stressed the binding nature of
the obligation to protect against torture in the context of deportation.
Governments therefore have been urged to:
Refrain from deporting persons to a country where they would be at risk of
torture (or to a transit country where they would be at serious risk of further
deportation to such a country); unless
389
Human Rights Committee, Communication 1416/2005, Alzery v Sweden, 25 October 2006, para.
11.3 to 11.5.
390 Concluding observations of the Human Rights Committee: Lithuania, CCPR/CO/80/LTU.
391 The key Resolution at the UN imposing obligations on States to counter terrorism.
392 Concluding observations of the Human Rights Committee: Lithuania, CCPR/CO/80/LTU. See also
Concluding observations of the Human Rights Committee: Yemen, CCPR/CO/75/YEM; Concluding
observations of the Committee against Torture: Yemen, CAT/C/CR/31/4. See also Human Rights
Committee, Communication 1051/2002, Ahani v. Canada, 29 March 2004
393 Concluding observations of the Human Rights Committee: Egypt, CCPR/CO/76/EGY.
78
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