The Legal Prohibition against Returns to Risk of Torture and Ill-Treatment International law is clear: torture and cruel, inhuman or degrading treatment or punishment (hereinafter “ill-treatment”) are prohibited absolutely, in all situations and at all times, as is the transfer of any person under any circumstances to a place where he or she would be at risk of such abuse. 2 International Law The absolute prohibition against torture and ill-treatment has been much discussed in the wake of revelations in April 2004 of detainee mistreatment at Abu Ghraib prison by U.S. military and intelligence personnel.3 Far less public discussion has been dedicated to the concomitant and equally absolute prohibition against returning or transferring a person to a place where he or she would be at risk of torture and ill-treatment.4 The prohibition against torture and ill-treatment, including the ban on such transfers, is absolute and permits no exceptions. The ban applies to every person, in times of armed conflict, disturbances, emergencies, or peace, no matter what past or current military or personal status obtains or what crimes or activities a person is suspected of having committed. States cannot derogate from or “opt out” of this obligation. The prohibition against torture is enshrined in numerous major international and regional human rights treaties as detailed below.5 Authoritative interpretations of anti-torture provisions in key treaties indicate that the prohibition against torture and ill-treatment includes the nonrefoulement obligation, even where that obligation is not expressly stated. 2 The word “transfer” includes any process leading to the involuntary return of a non-national either to his or her country of origin or to a third country, including by deportation, removal, expulsion, extradition, rendition, or other transfer from the custody of one government to the custody of another government. 3 See, Human Rights Watch Report, The Road to Abu Ghraib, June 2004 [online] http://www.hrw.org/reports/2004/usa0604/ (retrieved March 1, 2005). 4 While much has been written about renditions by the U.S. of terrorist suspects to third countries for interrogation (see U.S. section below), there is far less discussion about the full range of transfers—deportation, removal, expulsion, extradition—and how many states in North America and Europe are using powers under both counter-terrorism and immigration laws to transfer alleged terrorist suspects and national security threats to their home or third countries. As documented below, many such transfers occur on the basis of reliance by the sending state on diplomatic assurances against torture and ill-treatment from the receiving state, which often has a well-documented record of torture. 5 For the purposes of this paper, the word “torture” when used alone includes cruel, inhuman, or degrading treatment or punishment in conformity with the U.N. Human Rights Committee’s General Comment No. 20 (1992), which states: “In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.” 7 HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)