Committee Against Torture Issues New General Comment on Non-Refoulement
The United Nations Committee Against Torture (CAT) recently published its General Comment 4 on the implementation of Article 3 (non-refoulement, or not deporting or extraditing an individual to a country where they are at risk of torture) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), replacing the CAT’s first general comment 20 years after its publication; the new General Comment reiterates existing standards, provides additional guidance on torture and non-refoulement under the Convention against Torture, and provides expanded guidance on how the Committee reviews communications that allege violations of Article 3. [OHCHR Press Release: CAT] The General Comment notably solidifies some of the decisions on Article 3 made in the CAT’s merits decisions, including that sending States must consider the actions of non-State actors as well as State actors when determining the risk of torture for a potential deportee, and that the State’s obligation to not deport an individual at risk of torture in the receiving State is absolute. The General Comment’s guidance on communications may assist individuals at risk of refoulement submit more effective claims to international bodies, which will likely help the Committee expedite the processing of complaints and address its extensive backlog; the Committee’s complaints involving Article 3 claims make up the majority of complaints submitted to the Committee. See CAT, General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, Advanced Unedited Version, 9 February 2018, para. 7. [OHCHR Press Release: Statement; OHCHR Press Release: CAT]
State Obligations and Legal Standards in General Comment 4
General Comment 4 outlines the legal standards of non-refoulement, reiterating established standards and citing to its past general comments and merits decisions that were not reflected in General Comment 1. As the Committee established in its second general comment and has applied in merits decisions since, the Committee again noted that the prohibition on torture is absolute and non-derogable, as is the principle of non-refoulement of those at risk of torture. See General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, 9 February 2018, paras. 8-9. Accordingly, in cases of conflict between an extradition treaty and Article 3 of the Convention against Torture, the State’s Article 3 obligations will prevail. See id. at para. 25. Each State party must apply the principle of non-refoulement not only to any territory in its jurisdiction, but also to any area under its control or authority, including on board a ship or aircraft registered to the State party, as the CAT found in its second general comment. See id. at para. 10.
The Convention against Torture states that the principle of non-refoulement prohibits expulsion, refouler, or extradition if there are “substantial grounds” to believe the individual would be in danger of torture, and the CAT has determined in its merits decisions and reiterated in General Comment 4 that “substantial grounds” exist whenever the risk of torture is “foreseeable, present, and real.” See id. at para. 11. Importantly, General Comment 4 reminds States that they should not deport individuals if there are substantial grounds that the individual is at risk of torture by non-State actors, which was not stated in General Comment 1 but the CAT has developed in its merits decisions. See id. at para. 30. Victims of torture and other cruel, inhuman, or degrading treatment or punishment who require specialized treatment should not be deported to a State that lacks adequate medical services for rehabilitation. See id at para. 22.
General Comment 4 provides additional guidance on specific human rights situations in which the principle of non-refoulement applies. See id. at paras. 27-29. States should consider whether the individual faces risks in the country of origin or the country of deportation, including whether the person has been or will be arbitrarily arrested or denied fundamental guarantees as a detainee in police custody, including denial of the reasons for arrest, access to a lawyer, or access to a competent and independent judicial institution; subjected to excessive use of force by public officials based on any form of discrimination; a victim of gender-based or sexual violence, including female genital mutilation; subjected to a judicial system that does not guarantee the right to a fair trial; subjected to violations of the Geneva Conventions and their Protocols; exposed to a substantial risk of extrajudicial killings or enforced disappearance; or facing a substantial risk of slavery, forced labor, or trafficking in human beings. See id.
The State in which the individual resides should ensure certain safeguards while the individual is in removal proceedings or pursuing an asylum claim, according to General Comment 4. A State should not detain a person who is at risk of torture if deported without proper legal justification and should only detain such individuals as an exception measure. See id. at para. 12. Detention should undergo regular review. See id. States should ensure that asylum claims are processed without undue delay. See id. at para. 14.
Requirements for Individual Communications in General Comment 4
General Comment 4 provides specific guidance on the submission of individual communications that implicate Article 3, starting with admissibility requirements before discussing merits considerations. First, General Comment 4 reiterates from the general comment it replaces that a communication must establish a prima facie case, meaning it must provide sufficiently exhaustive evidence that, if taken as true, the victim is at risk of a violation of her Article 3 rights. See General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, 9 February 2018, at para 31. Second, General Comment 4 highlights its decision in previous merits rulings on its temporal jurisdiction; it states that while the State party’s obligations apply only from the date of entry into force of the Convention against Torture in that State, the CAT will consider communications on alleged violations that occurred before a State made a declaration to recognize the CAT’s competence to receive communications under Article 22 of the Convention if the effects of those violations continued after the State party’s declaration and the effects also constitute a violation of the Convention. See id. at para. 32.
Third, General Comment 4 notes, in keeping with former decisions, that to exhaust domestic remedies, an admissibility requirement, the complainant must exhaust remedies related to the torture they are at risk of upon deportation and a remedy that prevents deportation based on substantial grounds for believing the individual is at risk of torture; they do not have to exhaust other remedies to stay in the sending State for other reasons. See id. at paras. 34-35.
General Comment 4 clarifies the shifting of burden of proof in the merits stage. Generally, the burden of proof is on the author of the communication to present an arguable case showing the danger of being subjected to torture is foreseeable, present, personal, and real. However, when the complainant cannot elaborate on the case because she has demonstrated that she cannot obtain documentation relating to her allegations, the burden of proof is reversed and it is up to the State party to investigate the allegations. See id. at para. 38. In determining whether there are substantial grounds to believe the individual is at risk of torture, the CAT considers whether there is a consistent pattern of gross, flagrant, or mass violations of human rights in the State, as stated in the CAT’s first general comment; General Comment 4 states that these violations include the widespread use of torture and impunity for the perpetrators; harassment and violence against minority groups; widespread gender-based violence; and situations of international and non-international armed conflicts. See id at para. 43.
In assessing whether there are substantial grounds to believe there is a risk of torture, the Committee considers indicators of risk to the individual, including the complainant’s ethnic background, political affiliation, sexual orientation and gender identity, and risk of expulsion to a third country that poses a risk of torture; the human rights situation in the entirety of the receiving State; and whether the receiving State has instituted measures to prevent and prohibit torture. Additionally, the Committee will not consider whether the individual is safe from risk of torture in one territory of the receiving State over other areas of that State. See id. at paras. 45-48. In determining the merits, the CAT relies primarily on the information provided by the complainant and the State party concerned, but will also consider United Nations sources of information and any other reliable sources. See id. at para. 44.
Background on the CAT and Convention against Torture
The CAT is a treaty body within the universal system and is mandated to oversee the implementation of the Convention against Torture through the review of State party reports on implementation, individual complaints, inter-State complaints, and inquiry requests. The Committee also interprets the Convention against Torture through the issuance of its general comments, among other means. There are 162 States parties to the Convention against Torture, including 68 States that have accepted the individual complaints procedures of the CAT under Article 22 of the Convention against Torture. See UN Treaty Collection, 9. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The CAT has considered the admissibility or merits of 418 communications, of which 235 incorporated Article 3 claims. See OHCHR, Jurisprudence Database.
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