Significantly, The HRC has criticized 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).” 410 Like the HRC, the Special Rapporteur on Torture has 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: • they obtain unequivocal guarantees that the persons concerned will not be subjected to ill-treatment; and • there is a system to monitor their treatment after their return. Importantly, the deporting state may incur responsibility where the authorities of the receiving country are “unable or unwilling” to provide effective protection from ill-treatment by non-state agents. The ECtHR judgment in Chahal411 is worth emphasizing in this regard. There the Court found that Article 3 ECHR did not only protect against state ordered torture, it protected where the state had limited control over the day-to-day practices of its security forces. The principle in Chahal has been extended to cover situations where the person to be removed fears ill-treatment at the hands of non-state actors. Although the ECtHR will not easily assume that a state is not capable of protecting persons within its jurisdiction against private violence, the Court has not ruled out that circumstances might be so serious that an individual might warrant protection against return. As noted, there have also been a number of cases under the right of individual petition before both the HRC and the CAT. These cases have affirmed the absolute prohibition on returning individuals to face the risk of torture.412 In one case the Committee against Torture ruled that the state party had violated its non-refoulement obligation and that the assurances it had received were insufficient to protect against torture and other ill-treatment. In that case, despite assurances being given and some efforts at post-return monitoring by the sending state, the complainant was ill-treated during the return and alleged that he was tortured on return.413 In another case, the European Court of Human Rights found that, while accepting the good faith of the requesting government in providing diplomatic assurances as to the protection of the returnee, in fact, the government did not have sufficient control over the security services in a particular area of the country to provide an effective guarantee of protection.414 410 HRC, Concluding observations: Egypt, doc. CCPR/CO/76/EGY, 28 November 2002, para. 16(c). 411 Op. cit., note 144, ECtHR, Chahal v. UK, paras. 83-107. 412 CAT, Agiza v. Sweden, Communication no. 233/2003, doc. CAT/C/34/D/233/2003, 24 May 2005, para 13.8. This jurisprudence may be considered consolidated; see for instance, CAT, Tapia Paez v. Sweden, Communication no. 39/1996, doc. CAT/C/18/D/39/1996, 28 April 1997, para. 14.1-15; HRC, Byahuranga v. Denmark, Communication no. 1222/2003, CCPR/C/82/D/1222/2003, 9 December 2004, para. 11.2. 413 Ibid., CAT, Agiza v. Sweden, paras. 13.1-13.9. 414 Op. cit., note 144, ECtHR, Chahal v. UK, paras. 102-105. 142 Countering Terrorism, Protecting Human Rights