A/HRC/43/35
number of human rights situations that may constitute an indication of risk of torture. 41
Furthermore, according to the Committee against Torture, the person being transferred must
be given a possibility to challenge the transfer. 42 Diplomatic assurances and other
guarantees assuring that a person will not be tortured or suffer other irreparable harm upon
transfer are not, in themselves, sufficient to satisfy the principle of non-refoulement where
there are substantial grounds for believing that the person would be in danger of being
subjected to torture. 43 Such assurances should be accompanied by a prior thorough
examination of the merits of each individual case and be obtained following clear
procedures, with adequate judicial mechanisms for review and effective monitoring
mechanisms in place to assess whether they have been honoured.44
13.
Extraordinary renditions raise extensive and complex human rights concerns, with
clear implications for the integrity of the judiciary. By definition, they are often conducted
secretly, extraterritorially and outside normal legal procedures, challenging the judicial
system and the practical enjoyment of the right to a remedy through the use of that system.
The Human Rights Committee and the Committee against Torture have found that persons
subjected to extraterritorial detention following extraordinary renditions endured prolonged
and indefinite deprivation of liberty without access to the ordinary criminal justice system. 45
While victims of such violations of human rights are entitled to reparations and effective
remedy, 46 attempts to obtain remedies through domestic civil and criminal judicial
proceedings have been hampered because key information was deemed a State secret or
otherwise too sensitive to disclose.47 In accordance with the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, States are required to carry
out prompt, independent and effective investigations whenever there is ground to believe
that an act of torture or ill-treatment was committed in their jurisdiction and are obliged to
prosecute or extradite persons suspected of engaging in such acts.48 In practice, however,
the Committee against Torture has raised concerns that allegations of torture and illtreatment of persons detained extraterritorially have not been adequately investigated.49 In
some cases, States have been reticent to prosecute agents who allegedly perpetrated
violations in the course of extraterritorial detention50 or to surrender their own agents for
such prosecution in other jurisdictions. On other occasions, criminal charges have been
brought against only a limited number of low-level operatives.51
III. Impact on the integrity of the judicial system of
extraterritorial detention in armed conflict
14.
Armed conflicts may amount to emergency situations. While derogations from
certain human rights norms, including the right to liberty of person, are permissible when
such situations constitute a threat to the life of the nation, the Human Rights Committee has
clarified that measures derogating from the provisions of the International Covenant on
Civil and Political Rights must be of an exceptional and temporary nature and subject to a
number of strict conditions. 52 Furthermore, some peremptory norms, including the
prohibition on arbitrary detention, cannot be derogated from, 53 and procedural rights
41
42
43
44
45
46
47
48
49
50
51
52
53
6
Committee against Torture, general comment No. 4, para. 29.
CAT/C/USA/CO/2, para. 20.
Committee against Torture, general comment No. 4, para. 20.
CAT/C/USA/CO/2, para. 21.
See, e.g., CCPR/C/USA/CO/4, para. 21; CAT/C/USA/CO/2, para. 22.
General Assembly resolution 60/147, annex.
Court of Appeals, Fourth Circuit, El-Masri v. United States, Case No. 06-1667, 2 March 2007; ElMasri v. The Former Yugoslav Republic of Macedonia, para. 191.
Arts. 5, 7 and 12. General Assembly resolution 60/147, annex, para. 4; International Covenant on
Civil and Political Rights, art. 2.
CAT/C/GBR/CO/5, para. 15; CAT/C/USA/CO/3-5, para. 12.
See, e.g., El-Masri v. The Former Yugoslav Republic of Macedonia, paras. 186–194.
CCPR/C/USA/CO/4, para. 5; Borelli, “Extraordinary rendition”, p. 372.
International Covenant on Civil and Political Rights, art. 4; Human Rights Committee, general
comment No. 29.
A/HRC/22/44, paras. 51 and 75.
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