PART 1: Overview of the Human Rights Committee and the Committee Against Torture 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. The jurisprudence of the CAT Committee, the HRC and other international human rights bodies has recognized the non-refoulement rule to constitute an inherent part of the general and absolute prohibition of torture and other forms of ill-treatment.19 The Special Rapporteur on Torture20 and a number of human rights experts and legal commentators21 have specifically noted the customary nature of non-refoulement and asserted that the prohibition against non-refoulement under customary international law shares the prohibition of torture’s jus cogens and erga omnes character. The exclusionary rule, which prohibits the use of evidence extracted under torture, is also inherent in the absolute prohibition of torture and has been codified under Article 15 of the CAT which provides: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. To date, no State Party to CAT has made a reservation to Article 15, reflecting the universal acceptance of the exclusionary rule and its status as a rule of customary international law.22 In line with this, both the HRC and CAT have concluded that the exclusionary rule forms a part of the general and absolute prohibition of torture.23 19 20 21 22 23 CAT Committee: among others, Abdussamatov et al. v. Kazakhstan, Comm. No. 444/2010, para. 13.7, Tebourski v. France, Comm. No. 300/2006, para. 8.2, General Comment No. 2, para. 6; HRC General Comment 20, para. 9; HRC, Chitat Ng v. Canada, Comm. No. 469/1991, para. 16.4; Loizidou v. Turkey, No. 15318/89, ECtHR (18 December 1996); Soering v. the United Kingdom, No. 14038/88, ECtHR (7 July 1989); Chahal v. the United Kingdom, No. 22414/93, ECtHR (15 November 1996); African Commission: Modise v. Botswana, Communication 97/93, (229XXXVII), para. 91. For further analysis, see CINAT recommendations on the Torture Resolution of the UN Commission on Human Rights, March/April 2005. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Interim Report to the General Assembly, (2004) UN Doc. A/59/324, para. 28; see also Interim Report to the General Assembly, (2005) UN Doc. A/60/316. See Lauterpacht, E. and Bethlehem D., “The Scope and Content of the Principle of Non-Refoulement: Opinion “(2001), paras. 196–216; Allain, J., “The jus cogens Nature of non-refoulement”, 13(4) International Journal of Refugee Law (2002), 533, 538; and Farmer, A., “Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection” (2008), available at: http://www.hrw.org/node/108468. See https://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en. General Comment No. 20, para. 12; CAT Committee, P.E. v. France, Comm. No. 193/01, para. 6.3; CAT Committee, G.K. v. Switzerland, Comm. No. 219/02, para. 6.10. For further detailed analysis of the history, scope and application of the exclusionary rule, see Appendix 11, Written submissions to the UK House of Lords by Third Party Interveners in the case of A. and Others v. Secretary of State for the Home Department and A. and Others (FC) and another v. Secretary of State for the Home Department (2004) EWCA Civ. 1123; (2005) 1 WLR 414, pp. 35–59. See also Report of the Special Rapporteur on Torture, (2006) UN Doc. A/61/259, discussing the significance of Article 15 of CAT and expressing concern that the “absolute prohibition of using evidence extracted by torture has recently … come into question notably in the context of the global fight against terrorism”, p. 10. 29