A/HRC/37/50 55. Last but not least, "pushbacks" often involve short-term periods of custody, during which migrants find themselves under the physical control of border guards and are being subjected to torture or ill-treatment with the intent of achieving a deterrent effect through punishment, intimidation, coercion or discrimination. The Special Rapporteur has received numerous reports of "pushbacks" involving beatings, dog attacks, and dousing with cold water at below zero temperatures. Even in the absence of physical custody, "pushbacks" routinely involve the threat or use of unnecessary, excessive or otherwise arbitrary force. In the view of the Special Rapporteur, the use of force for no purpose other than to deter or to prevent persons from entering a State’s territory cannot be considered lawful, necessary or proportionate and, therefore, may well amount to ill-treatment or even torture.85 5. Departure prevention / indirect arrival prevention ("pullbacks") 56. "Pullback" operations are designed to physically prevent migrants from leaving the territory of their State of origin or a transit State (retaining State), or to forcibly return them to that territory, before they can reach the jurisdiction of their destination State. "Pullbacks" are carried out by retaining States or local armed groups, either in the interest of dictatorial regimes trying to prevent inhabitants from escaping (departure prevention), or at the instigation and on behalf of destination States desiring to prevent migrant arrivals without having to engage their own border authorities in unlawful "pushback" operations (indirect arrival prevention). 57. By their very nature, "pullbacks" prevent migrants from exercising their rights to leave any country or territory; not to be detained arbitrarily; to seek and enjoy asylum; and to have individual rights and duties determined in a due process proceeding. Moreover, when "pullbacks" forcibly retain migrants in situations where they are exposed to a real risk of torture and ill-treatment, any participation, encouragement, or assistance provided by destination States for such operations would be irreconcilable with a good faith interpretation and performance of the prohibition of torture and ill-treatment, including the principle of non-refoulement.86 As part of jus cogens, these fundamental provisions trump all conceivable justifications for departure and arrival prevention under national or international law, including the law of the sea. Most notably, while both retaining States and supportive destination States often portray "pullbacks" as humanitarian operations aiming to "rescue" migrants in distress from overcrowded and unseaworthy vessels at sea, or to prevent them from embarking on such "unsafe journeys", or to "defeat the business model of smugglers and traffickers", the well-documented reality is that intercepted migrants are generally returned to their port of departure, where they are routinely detained or further deported to unsafe third States and, in both cases, exposed to a substantial risk of torture and ill-treatment, or even death, without access to an assessment of their protection needs or any other legal remedy. 58. States are responsible for internationally wrongful acts or omissions which are legally attributable to them, whether through direct imputation, joint responsibility, or complicity, and regardless of the lawfulness of such acts or omissions under domestic law.87 Thus, States are responsible not only for territorial and extraterritorial violations committed by their own officials, or by contractors and other non-State actors under their instruction and control,88 but also for knowingly aiding, assisting, directing, controlling or coercing other States in committing internationally wrongful acts.89 In particular, States knowingly providing instructions, directions, equipment, training, personnel, financial assistance, or intelligence information in support of unlawful migration deterrence or prevention operations conducted by third States will incur legal responsibility for these violations. This also applies if such operations are conducted by non-State actors under their instructions and control. 85 86 87 88 89 16 A/72/178, §62(c); A/72/335, §33. Art.26, 31(1) VCLT; and Art.1(3); 2(1) UN Charter. See also Nora Markard, "The_Right_to_Leave_by_Sea"(2016) 27(3) EJIL, pp.596-597, 606-607, 614-616. A/RES/62/61,08.01.2008, Art.1-3. A/RES/62/61,08.01.2008, Art.4-11. A/RES/62/61,08.01.2008, Art.16-19.