4 Legal Implications in case Trafficking in Human Beings Amounts to Torture or other Forms of Ill-treatment This section explores the legal implications when trafficking in human beings amounts to torture or other forms of ill-treatment. Differences in the legal standards given by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime as well as the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Convention against Torture are shown below. 4.1 The Principle of Non-refoulement 4.1.1 The Principle of Non-refoulement in General The prohibition of refoulement is an important principle of international law. In general, the principle sets out that a State violates the absolute prohibition of torture even in cases in which authorities expel or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.103 Nevertheless, different standards of application of this principle can be seen in different human rights treaties. Art. 3 UNCAT limits this principle to cases of torture only and it is not applicable to other forms of ill-treatment. In contrast, the ECtHR also applies the nonrefoulement principle to cases of CIDT.104 The prohibition of torture and other forms of ill-treatment in Art. 3 ECHR does not specifically refer to the prohibition of refoulement. Nevertheless, the ECtHR interpreted it also as prohibiting return in situations in which the individual would face a real risk of torture or inhuman or degrading treatment or punishment.105 The principle of non-refoulement can also be found in the Inter-American human rights law. The InterAmerican Convention to Prevent and Punish Torture106 requires in Art. 13 that a person not be extradited or returned to a country “when there are grounds to believe […] that he will be subjected to torture or to cruel, inhuman or degrading treatment”. Furthermore, Art. 22 (8) of the American Convention on Human Rights107 states that no one should be returned to a country where the person’s right to life or personal freedom might be in danger because of race, nationality, religion, social status, or political opinion. Moreover, non-refoulement builds an important principle within the refugee context. The Refugee Convention108 prohibits expulsion or return of a refugee to territories where the “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. 109 The Refugee Convention allows derogation from the principle of non-refoulement where there are reasonable grounds for regarding a refugee to be a danger to the security of the country in which she or he resides or a refugee has been convicted of a particularly serious crime which constitutes a danger to the community of the country. In contrast, non-refoulement under human rights law is absolute and non-derogable.110 The Palermo Protocol stipulates in Art. 14 that the provisions of the protocol shall not affect the principle of non-refoulement in the context of asylum. Similarly, the CoE Convention also stresses the obligation and responsibility of States to adhere to the principle of non-refoulement in the context of asylum. Although mentioned in the context of asylum in these treaties concerning trafficking in human beings, the protection of non-refoulement is much broader than asylum111 and international protection needs are assessed on a wider basis than in the Refugee Convention. American Convention on Human Rights “Pact of San Jose, Costa Rica” non-refoulement The Prohibition of Torture and Ill-treatment in the Inter-American Human Rights System: A Handbook for Victims and their Advocates, Convention relating to the Status of Refugees The United Nations Convention against Torture: A Commentary The International Law of Human Trafficking Complementary Protection in International Refugee Law Case of Soering v UK Inter-American Convention to Prevent and Punish Torture, 28 111 The International Law of Human Trafficking