No state may send a person to a place where they face torture. There is no exception for what the person has done, and no exception for who they are.
What the Convention says
Article 3(1). “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Article 3(2). “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”
Why the second paragraph matters here
Article 3(2) is the Convention instructing its own parties to look at conditions in the receiving country, as a pattern, before sending anyone there. That is what the country guides on this site record and what the Alert band summarises. The method is the treaty’s. Every designation the Coalition publishes is an application of that sentence.
Chain refoulement
A state does not escape article 3 by routing a person through somewhere else. Sending a person to a state that then sends them onward into danger is chain refoulement, sometimes called indirect refoulement. Article 3 asks whether the person would be in danger, not whether the first state is the danger.
This is not a theoretical category. The Coalition has documented it. People transferred to Ghana were moved on to Togo, Nigeria, the Gambia, Sierra Leone and Senegal, in one recorded case within twenty-four hours of arrival, and in another the same day they landed.
What the rule does not turn on
Not the person’s conduct
The European Court of Human Rights held in Chahal v United Kingdom that the prohibition applies “irrespective of the victim’s conduct” and that “the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”
Chahal v United Kingdom, application no. 22414/93, Grand Chamber, 15 November 1996, paragraphs 79 to 80.
Not whether the receiving state intends harm
Article 3 asks whether the person would be in danger. It does not ask what the receiving state meant to do.
Not the word used for the transfer
Article 3 covers expulsion, return and extradition alike. Officials call these transfers third-country removals. Where the person faces danger on arrival, the name for it in law is refoulement. Where they are moved on into danger, it is chain refoulement.
The same rule in other instruments
- European Convention on Human Rights, article 3. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In Soering v United Kingdom the Court held that a transfer itself engages article 3 where substantial grounds are shown for believing the person faces a real risk of such treatment. Application no. 14038/88, 7 July 1989, paragraph 91.
- Convention relating to the Status of Refugees 1951, article 33(1). No expulsion or return to the frontiers of territories where life or freedom would be threatened on protected grounds. One difference matters: article 33(2) carries exceptions. Article 3 of the Convention against Torture carries none.
- International Covenant on Civil and Political Rights, article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- Charter of Fundamental Rights of the European Union, article 19(2). “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
Where a state holds the evidence
The agreements behind these transfers, the status granted to the people moved under them, and how long that status lasts, are facts held by the governments involved and by nobody else. Where those facts are not disclosed, international courts and treaty bodies do not treat the silence as neutral.
- The International Court of Justice held that a state’s exclusive territorial control means the other party “should be allowed a more liberal recourse to inferences of fact and circumstantial evidence,” which “must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.” Corfu Channel, Merits, 9 April 1949, ICJ Reports 1949, page 18.
- The European Court of Human Rights held that where events lie “wholly, or in large part, within the exclusive knowledge of the authorities… strong presumptions of fact will arise,” and the burden “may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.” Salman v Turkey, Grand Chamber, application no. 21986/93, 27 June 2000, paragraph 100.
- The Human Rights Committee held that the burden “cannot rest alone on the author,” because “frequently the State party alone has access to relevant information.” Bleier v Uruguay, Communication No. R.7/30, paragraph 13.3.
- The Inter-American Court of Human Rights held that “the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations.” Velasquez Rodriguez v Honduras, Merits, 29 July 1988, paragraph 138.
- The Committee against Torture has stated that under article 3 the burden ordinarily rests on the complainant, but “the burden of proof is reversed and the State party concerned must investigate the allegations” where the complainant cannot obtain the evidence. General Comment No. 4 (2017), CAT/C/GC/4, paragraph 38.
Where this site records that a fact has not been disclosed, it sets out what was asked and what was not answered, and leaves the inference to the reader.
Sources
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, authentic text, United Nations Treaty Series volume 1465, No. 24841.
- Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe.
- Soering v United Kingdom, HUDOC 001-57619. Chahal v United Kingdom, HUDOC 001-58004. Salman v Turkey, HUDOC 001-58735.
- Corfu Channel (United Kingdom v Albania), Merits, ICJ Reports 1949.
- Velasquez Rodriguez v Honduras, Inter-American Court of Human Rights, Series C No. 4.
- Committee against Torture, General Comment No. 4 (2017), CAT/C/GC/4.
- Charter of Fundamental Rights of the European Union, OJ C 326/391.
The Convention itself. Article 1 defines torture, article 16 covers cruel, inhuman or degrading treatment that does not amount to it, and the record of what four states actually accepted is set out on the CAT page.
The full text of this and every other provision the Coalition relies on is on The laws that protect people from torture.