A/HRC/13/39/Add.5
between the non-refoulement and asylum procedures and in practice, the risk of
refoulement is usually examined in regular domestic asylum procedures, which in many
countries display shortcomings. The respect of the principle of non-refoulement is difficult
in practice since it requires adequate procedures for the assessment of an objective and
subjective risk of torture. For the non-refoulement principle to be effective, it must be
emphasized that the applicant only has the burden of showing the risk of torture, while the
burden of proof is carried by the State throughout the procedure. The State has to undertake
a proper risk assessment by collecting relevant information and evidence. While doubts
about the credibility of the facts provided by the applicant can result in the refusal of
asylum, the State has to ensure that the security of the applicant is not endangered, as
continuously held by the CAT Committee.191 In this regard, I am concerned with the
increased tightening of immigration laws and speeding up of procedures that often only
provide for a superficial collection of evidence by the domestic authorities. Despite great
immigration pressures or xenophobic tendencies among the population, States have to take
their obligations to protect people fleeing from torture seriously.
B.
Challenges in the “war against terror”
240. As elaborated earlier, the principle of non-refoulement is absolute. Nevertheless,
some States have claimed that it is necessary to deport dangerous individuals in order to
protect their communities from terrorist threats. In this regard a test of reasonableness for
terrorist suspects, balancing the risk of torture against the threat to national security, has
been applied. Such approach was for example supported by the Canadian Supreme Court in
the 2002 Suresh judgment, whereby it accepted that refoulement could occur in exceptional
circumstances if a substantial risk to the national security of the State was proven.192 The
CAT Committee has rejected this approach and confirmed the absolute nature of article 3
on numerous occasions.193 It has stated that “The nature of the activities in which the person
concerned engaged cannot be a material consideration when making a determination under
article 3 of the Convention.”194 Similarly, the European Court of Human Rights has
discarded any ‘balancing act’. While recognizing the danger of terrorism and the “immense
difficulties” for States to protect their communities, it has stated that this “must not,
however, call into question the absolute nature of Article 3”.195
241. Some States have argued for a geographical limitation of the principle of nonrefoulement. States maintaining detention facilities outside their territories, such as the
United Kingdom and the United States in Iraq or Afghanistan, have claimed that the nonrefoulement principle was not applicable to the detainees held there but restricted to their
own territories. Thus, they transferred detainees to the domestic authorities of Iraq or
Afghanistan without assessing any risk of torture. Such practice may have dangerous
consequences for the returned individuals who are often suspected terrorists or
fundamentalists and consequently run a particularly high risk of being tortured or ill-treated
upon return. Such attempts to limit the principle of non-refoulement to State territories are
191
192
193
194
195
CAT Committee, Aemei v. Switzerland, No. 34/1995, para. 9.6; A.S. v. Sweden, No. 149/1999, para.
8.6; Nos. 13/1993, para. 9.2; 15/1994, para. 12.3; 34/1995, para. 9.6; 138/1999, para 7.3. For a
detailed analysis of the practice of the CAT Committee see Nowak and McArthur, Article 3, 3.
Supreme Court of Canada, Manickavasagam Suresh v. Canada (Minister of Citizenship and
Immigration) 2002 SCC 1. File No.: 27790.
CAT/C/18/D/39/1996, para. 14.5; CAT/C/SR.652, para. 59; CAT/C/NPL/CO/2, para. 17;
CAT/C/FRA/CO/3, para. 6.
CAT Committee, Tapia Paez v. Sweden, CAT/C/18/D/39/1996, 28 April 1997, para. 14.5.
ECtHR, Saadi v. Italy, Appl. No. 37201/06, 28 February 2008, para. 137.
65
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents