A/HRC/37/50
55.
Last but not least, "pushbacks" often involve short-term periods of custody, during
which migrants find themselves under the physical control of border guards and are being
subjected to torture or ill-treatment with the intent of achieving a deterrent effect through
punishment, intimidation, coercion or discrimination. The Special Rapporteur has received
numerous reports of "pushbacks" involving beatings, dog attacks, and dousing with cold
water at below zero temperatures. Even in the absence of physical custody, "pushbacks"
routinely involve the threat or use of unnecessary, excessive or otherwise arbitrary force. In
the view of the Special Rapporteur, the use of force for no purpose other than to deter or to
prevent persons from entering a State’s territory cannot be considered lawful, necessary or
proportionate and, therefore, may well amount to ill-treatment or even torture.85
5.
Departure prevention / indirect arrival prevention ("pullbacks")
56.
"Pullback" operations are designed to physically prevent migrants from leaving the
territory of their State of origin or a transit State (retaining State), or to forcibly return them
to that territory, before they can reach the jurisdiction of their destination State. "Pullbacks"
are carried out by retaining States or local armed groups, either in the interest of dictatorial
regimes trying to prevent inhabitants from escaping (departure prevention), or at the
instigation and on behalf of destination States desiring to prevent migrant arrivals without
having to engage their own border authorities in unlawful "pushback" operations (indirect
arrival prevention).
57.
By their very nature, "pullbacks" prevent migrants from exercising their rights to leave
any country or territory; not to be detained arbitrarily; to seek and enjoy asylum; and to have
individual rights and duties determined in a due process proceeding. Moreover, when
"pullbacks" forcibly retain migrants in situations where they are exposed to a real risk of
torture and ill-treatment, any participation, encouragement, or assistance provided by
destination States for such operations would be irreconcilable with a good faith interpretation
and performance of the prohibition of torture and ill-treatment, including the principle of
non-refoulement.86 As part of jus cogens, these fundamental provisions trump all conceivable
justifications for departure and arrival prevention under national or international law,
including the law of the sea. Most notably, while both retaining States and supportive
destination States often portray "pullbacks" as humanitarian operations aiming to "rescue"
migrants in distress from overcrowded and unseaworthy vessels at sea, or to prevent them
from embarking on such "unsafe journeys", or to "defeat the business model of smugglers
and traffickers", the well-documented reality is that intercepted migrants are generally
returned to their port of departure, where they are routinely detained or further deported to
unsafe third States and, in both cases, exposed to a substantial risk of torture and ill-treatment,
or even death, without access to an assessment of their protection needs or any other legal
remedy.
58.
States are responsible for internationally wrongful acts or omissions which are legally
attributable to them, whether through direct imputation, joint responsibility, or complicity,
and regardless of the lawfulness of such acts or omissions under domestic law.87 Thus, States
are responsible not only for territorial and extraterritorial violations committed by their own
officials, or by contractors and other non-State actors under their instruction and control,88
but also for knowingly aiding, assisting, directing, controlling or coercing other States in
committing internationally wrongful acts.89 In particular, States knowingly providing
instructions, directions, equipment, training, personnel, financial assistance, or intelligence
information in support of unlawful migration deterrence or prevention operations conducted
by third States will incur legal responsibility for these violations. This also applies if such
operations are conducted by non-State actors under their instructions and control.
85
86
87
88
89
16
A/72/178, §62(c); A/72/335, §33.
Art.26, 31(1) VCLT; and Art.1(3); 2(1) UN Charter. See also Nora Markard,
"The_Right_to_Leave_by_Sea"(2016) 27(3) EJIL, pp.596-597, 606-607, 614-616.
A/RES/62/61,08.01.2008, Art.1-3.
A/RES/62/61,08.01.2008, Art.4-11.
A/RES/62/61,08.01.2008, Art.16-19.
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