solid, meaningful and verifiable. 42 There should also be a system of effective
monitoring which is prompt, regular and includes private interviews. 43
26.
However, in a more recent report which addressed inter alia examples of State
practice in cases involving diplomatic assurances, the Special Rapporteur on Torture has
expressed the view that post-return mechanisms do little to mitigate the risk of torture
and have proven ineffective in both safeguarding against torture and as a mechanism of
accountability. 44 In a similar vein, the High Commissioner for Human Rights has
expressed concern about the effectiveness of monitoring where the individual concerned
faces a risk of torture and cruel, inhuman or degrading treatment. 45
C. Diplomatic assurances and the forcible removal of refugees or asylum-seekers
27.
Whether or not the host State may rely on diplomatic assurances with regard to
the treatment of refugees or asylum-seekers in the receiving State must be assessed in
light of its obligations under international and regional refugee and human rights law as
well as customary international law, as outlined in its main elements in the preceding
sections.
1. Refugees
28.
The host State’s obligation to respect the principle of non-refoulement as
guaranteed under Article 33 of the 1951 Convention applies with regard to persons who
have been recognized as refugees by its own asylum authorities, but also if the person
concerned has been determined to be a refugee by UNHCR 46 or by a country which is
different from the State that intends to remove him or her. 47
42
The conditions listed by the Special Rapporteur include, as a minimum: provisions with
respect to prompt access to a lawyer; (video) recording of all interrogation sessions and
recording of the identity of all persons present; prompt and independent medical examination;
forbidding incommunicado detention or detention at undisclosed places. See Special Rapporteur
on Torture, Report of 1 September 2004, above footnote 5, at paragraph 41, with reference to the
Special Rapporteur’s report to the Commission on Human Rights of 23 December 2003, U.N.
Doc. E/CN.4/2004/56, at paragraphs 27–49.
43
See Special Rapporteur on Torture, Report of 1 September 2004, above footnote 5, at
paragraph 42.
44
See Special Rapporteur on Torture, Report submitted in accordance with General Assembly
resolution 59/182, U.N. Doc. A/60/316, 30 August 2005, at paragraph 46.
45
See High Commissioner for Human Rights, Human Rights Day Statement, On Terrorists and
Torturers, 7 December 2005, where it is noted that “[s]hort of very intrusive and sophisticated
monitoring measures, such as around-the-clock video surveillance of the deportee, there is little
oversight that could guarantee that the risk of torture will be obliterated in any particular case.
While detainees as a group may denounce their torturers if interviewed privately and
anonymously, a single individual is unlikely to reveal his ill-treatment if he is to remain under
the control of his tormentors after the departure of the ‘monitors’”.
46
Under its international protection mandate, UNHCR may conduct refugee status
determination where this is required for protection reasons. UNHCR’s authority to do so derives
from the Office’s 1950 Statute (annexed to General Assembly resolution 428 (V) of 14
December 1950), as developed and refined in subsequent resolutions of the General Assembly
and the Economic and Social Council.
47
A determination by a State that a person is a refugee under the 1951 Convention has an
extraterritorial effect, at the very least with respect to other States Parties to the 1951
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