It is important to note that such “irreparable harm,” in accordance with ICCPR article 7,
expressly includes cruel, inhuman, or degrading treatment or punishment.
1951 Convention Relating to the Status of Refugees
The nonrefoulement obligation is also a core principle of international refugee law. The
1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Refugee
Convention) require that no state “shall expel or return (‘refouler’) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social
group or political opinion.”11
Unlike the Convention against Torture and ICCPR, the prohibition against refoulement
under the Refugee Convention is not absolute and exceptions to its protections are
permitted in very narrow circumstances.12 Any person excluded from refugee status or
continuing protection from refoulement as a result of any one of these exceptions,
however, retains the right to claim protection from return or transfer to risk of torture or
ill-treatment under other international instruments and customary international law.
11
1951 Convention Relating to the Status of Refugees, article 33 [online]
http://www.ohchr.org/english/law/refugees.htm (retrieved March 18, 2005); 1967 Protocol Relating to the Status
of Refugees [online] http://www.ohchr.org/english/law/protocolrefugees.htm (retrieved March 18, 2005).
12
A person seeking refugee status can be excluded from such status based on article 1F, which states that “the
provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for
considering that a) He has committed a crime against peace, a war crime, or a crime against humanity…b) He
has committed a serious non-political crime outside the country of refuge prior to his admission to that country
as a refugee; c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”
"The only exception to the principle of refoulement in the Refugee Convention is found in 33(2):
Article 33. Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted
by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
A refugee may be expelled on grounds of national security or public order in accordance with article 32, but not
to a place where his or her life or freedom would be threatened, whether that be his/her country of origin or a
third state:
Article 32. Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security
or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due
process of law. Except where compelling reasons of national security otherwise require, the refugee shall be
allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before
competent authority or a person or persons specially designated by the competent authority…
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
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