A/59/324
absolute nature of the prohibition of torture or inhuman or degrading treatment,
formal assurances cannot suffice where a risk nonetheless remains.”9
32. The Special Rapporteur bears in mind that, in its resolution 1373 (2001) the
Security Council decided that all States shall, inter alia, deny safe haven to those
who finance, plan, support, or commit terrorist acts, or provide safe havens. At the
same time, he notes Security Council resolution 1456 (2003), which stresses that
States must ensure that any measure taken to combat terrorism complies with all
their obligations under international law and should adopt such measures in
accordance with international law, in particular international human rights, refugee
and humanitarian law. Full respect for basic standards of international human rights
law and, in particular, for the absolute prohibition of torture in the application of
national measures and in international cooperation is an issue that is integral to the
mandate of the Special Rapporteur. It is from this perspective that he puts forward
some further considerations as to factors and circumstances that should be taken into
account when examining the issue of reliance on diplomatic assurances. While the
Special Rapporteur does not intend to provide an exhaustive list of such factors and
circumstances, his concerns about the ongoing erosion of the non-refoulement
principle prompts him to spell out certain requirements in that regard.
33. It is important to keep in mind the basic international standard as set out in
international human rights law, notably in the Universal Declaration of Human
Rights (art. 5), the International Covenant on Civil and Political Rights (art. 7), the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (art. 3), the European Convention on Human Rights (art. 3) and the
American Convention on Human Rights (art. 5). In its recent General Comment
No. 31, the Human Rights Committee reaffirmed that the obligation of States Parties
“to respect and ensure the Covenant rights for all persons in their territory and all
persons under their control entails an obligation not to extradite, deport, expel or
otherwise remove a person from their territory, where there are substantial grounds
for believing that there is a real risk of irreparable harm, such as that contemplated
by articles 6 and 7 of the Covenant, either in the country to which removal is to be
effected or in any other country to which the person may subsequently be removed”
(para. 12, emphasis added). Similar wording also constitutes the quintessence of
article 3 of the Convention against Torture and General Comment No. 1 (1996) of
the Committee against Torture concerning the implementation of this article.
34. The factors and circumstances to be taken into account with respect to the nonrefoulement principle may relate to the situation prevailing in the country to which a
person is to be removed or may subsequently be removed (prevailing political
conditions), or to the vulnerability of the person concerned to torture or other forms
of ill-treatment (personal circumstances). The prevailing political conditions alone,
or in combination with personal circumstances, are determining factors for the
application of the non-refoulement principle.
35. Article 3, paragraph 2, of the Convention against Torture stipulates that, for
the purpose of determining whether there are substantial grounds for believing that a
person would be in danger of being subjected to torture, all relevant considerations
must be taken into account, including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human
rights. This definition has a long history in United Nations human rights
terminology10 and is an indication of the type and nature of situations warranting
10