UN expert stresses that tougher migration policies must not breach the principle of non-refoulement to torture

SPECIAL PROCEDURES
UNITED NATIONS
HUMAN RIGHTS COUNCIL

Position Paper of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment:

Non-Refoulement and the Prohibition of Torture

A. Introduction

The principle of non-refoulement to torture is one of the most important safeguards in international human rights law. It gives practical effect to the absolute prohibition of torture by preventing States from transferring individuals to places where they face a real risk of torture or other prohibited ill-treatment.

At a time of increased migration pressures, growing public concern about border management, and renewed debate over deportations and extraditions, the principle has come under heightened scrutiny. Too often, however, the discussion is framed as a choice between protecting human rights and enabling States to manage migration, remove foreign nationals, or pursue criminal accountability. This is a false choice.

International law does not prohibit lawful deportation, extradition or return. What it requires is that States ensure such measures are carried out consistently with the absolute prohibition of torture and other forms of prohibited ill-treatment and other rules of international law. Furthermore, it requires investigation and prosecution, and protection for the victims, of serious criminal offences. States shall not provide safe havens for legitimately wanted persons.

The challenge today is not whether non-refoulement should be weakened or strengthened. The challenge is how it should be implemented.

B. The Legal Basis

The prohibition of torture is absolute and non-derogable. No exceptional circumstance, including war, terrorism, public emergency or serious criminality, may be invoked to justify torture.

The prohibition against refoulement appears in several forms, is codified in several international agreements, and now constitutes customary international law.

Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides its clearest expression, that no State shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture. The obligation of nonrefoulement has also been considered implicit in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [1], and in respect of regional human rights treaties, including inter alia, Article 3 of the European Convention on Fundamental Freedoms and

Human Rights (ECHR) and Article 4 of Protocol 4, Articles 5 and 12(2)-(4) of the African Charter of Human and Peoples' Rights, and Articles 5 and 22(5)-(9) of the American Convention on Human Rights.

The principle reflects a simple but fundamental proposition: States must not expose individuals to a foreseeable risk of torture or other ill-treatment through their own actions. Without non-refoulement, the prohibition of torture could easily be circumvented by transferring individuals to jurisdictions where torture is practiced.

As a higher order / jus cogens obligation, any other provisions are subject to the absolute prohibition on torture (such as Article 13, ICCPR (procedures to expel "lawful aliens")).

The principle is also reflected in refugee law, although the precise scope of protection may vary. For non-refoulement in respect of asylum-seekers and refugees, consult the United Nations High Commissioner for Refugees.

C. Why Non-Refoulement Matters

Non-refoulement protects one of the most fundamental values of the international legal order: human dignity.

The principle applies irrespective of the character of the individual concerned. Even persons accused or convicted of serious crimes, including terrorism, organised crime, war crimes or other grave offences, may not be transferred where there is a real risk of torture. The prohibition is tested most acutely in difficult cases. It would have little meaning if it applied only to those who are popular, innocent or politically uncontroversial.

The principle also protects the integrity of international legal systems. It ensures that States do not become complicit in torture by knowingly transferring individuals into situations where torture is foreseeable.

At the same time, non-refoulement should not be misunderstood as a general prohibition on removals. States retain broad powers to regulate migration, deport non-nationals, prosecute criminal offenders, extradite suspects and protect public safety. The principle requires that these powers be exercised lawfully, not abandoned. States also have obligations to receive their nationals back [2].

D. Meaningful and Individualised Risk Assessment

Under the Convention against Torture and other relevant treaties, States may not return an individual to a country where there are substantial grounds for believing that s/he would be in danger of being subjected to torture. This obligation requires States to undertake a meaningful review whenever such claims are raised. Such procedures must be fair and effective. They must also be individualized.

In the Committee against Torture's General Comment No. 4 it is specified that the procedural obligations arising pursuant to Article 3 entail:

Each case should be examined individually, impartially and independently by the State party through competent administrative and/or judicial authorities, in conformity with essential procedural safeguards, notably the guarantee of a prompt and transparent process, a review of the deportation decision and a suspensive effect of the appeal. In each case, the person concerned should be informed of the intended deportation in a timely manner. [3]

Article 3(2) of the Convention against Torture directs authorities to take into account all relevant considerations, including the existence in the receiving State of a consistent pattern of gross, flagrant or mass violations of human rights.

This provision is often misunderstood. The existence of widespread torture or serious human rights abuses in a country does not automatically mean that every person from that country faces a risk of torture. Equally, the absence of a documented pattern of torture does not mean that an individual cannot be at risk.

Country conditions are relevant because they help inform the assessment of risk. The ultimate question, however, is whether the particular individual concerned faces a real, foreseeable and personal risk of torture or other prohibited treatment if returned.

Relevant considerations may include previous torture, political activities, ethnicity, religion, gender, sexual orientation, disability, health status, criminal allegations, family connections, or any other factor that may expose the individual to harm.

The assessment must therefore be both contextual and individualised. General conditions inform the analysis, but individual circumstances determine the outcome.

Related is that collective expulsions are prohibited (see, CAT General Comment No. 4; [4] Article 22, International Convention on the Protection of the Rights of All Migrants and Members of their Families; Article 12(4), African Charter of Human and Peoples' Rights; Article 22(9) of the American Convention on Human Rights; Article 4 of Protocol No. 4 of the European Convention on Human Rights (collective expulsion of aliens is prohibited) [5]; and Article 19, Charter of Fundamental Rights of the European Union).

E. Absolute norm and non-exclusion

A defining feature of the prohibition of refoulement to torture is that it contains no exclusion clause. Unlike certain protections in international refugee law [6], protection against refoulement to torture cannot be withdrawn depending upon the character of the individual concerned. A person may be accused or convicted of terrorism, torture, organised crime, war crimes, crimes against humanity, murder or other serious offences, and may still not be transferred where there are substantial grounds for believing that they would face a real risk of torture. This is not because international law excuses or overlooks such conduct. Rather, it reflects the absolute nature of the prohibition of torture itself. Torture is never a lawful punishment, and no person's conduct places them outside the protection of the law.

The absence of an exclusion clause should not be confused with impunity. States have an obligation under international human rights law to effectively investigate and prosecute serious crimes, and an obligation to support the rights of the victims of said crimes. They may also pursue extradition or deportation where this can be achieved consistently with international law. The principle of non-refoulement does not prevent accountability; it requires that accountability be pursued through lawful means that do not expose individuals to torture or other prohibited treatment.

F. Other Forms of Ill-Treatment or Punishment

Torture and other cruel, inhuman or degrading treatment or punishment exist along a spectrum of prohibited conduct. The distinction between them is often one of degree rather than kind.

Whether particular treatment reaches the threshold of torture or other prohibited ill-treatment depends upon numerous factors, including the severity and duration of suffering, the purpose of the conduct, and the characteristics of the person affected. Age, sex, health status, disability, trauma history and other vulnerabilities may all be relevant.

For this reason, non-refoulement assessments cannot be reduced to broad assumptions or categorical rules. Conditions that may not amount to prohibited treatment for one person could do so for another because of their particular vulnerabilities or circumstances.

At the same time, international law does not prohibit returns merely because conditions in the receiving State are less favourable than those in the sending State. Nor does it prohibit return simply because lawful detention, prosecution in fair proceedings or punishment may follow.

The focus must remain on whether the individual faces a real risk of treatment that crosses the relevant legal threshold. Treatment inherent in lawful sanctions, criminal justice proceedings or legitimate law enforcement measures will not ordinarily engage the prohibition, provided those measures themselves comply with international law.

G. Diplomatic Assurances

Diplomatic assurances are a risk-management tool used in circumstances where concerns exist regarding the treatment of an individual following return. They typically address matters such as detention conditions, access to legal representation, medical care, contact with family members, fair trial guarantees, protection from torture and ill-treatment, and arrangements for post-transfer monitoring.

Diplomatic assurances do not alter the legal obligations of either State, nor do they automatically remove a risk of torture. Their value depends upon the reliability of the undertakings provided by receiving State, the specificity of the commitments provided, the existence of independent post-return monitoring arrangements, and the ability to detect and respond to violations.

The Committee against Torture has cautioned that "diplomatic assurances from a State party to the Convention to which a person is to be deported should not be used as a loophole to undermine the principle of non-refoulement." [7]

They will not be appropriate in every case. Their use requires careful consideration of the human rights record of the receiving State, including the factors identified in Article 3(2) of the Convention against Torture. No returns should be carried out to countries that are not a party to the Convention against Torture or another treaty carrying similar obligations at international or regional levels. Whether or not a country has ratified the Optional Protocol to the Convention against Torture, which requires independent and impartial monitoring of places of deprivation of liberty, would be another important factor to consider in relevant cases.

Assurances should be formalised through clear agreements, specify the protections to be provided, and be accompanied by effective monitoring arrangements capable of verifying compliance in practice.

Independent post-return monitoring, confidential access to the transferred person, mechanisms for reporting violations, and consequences for non-compliance are all critical components of a credible system.

Where assurances are vague, unenforceable or incapable of meaningful verification, they may provide little protection in practice.

H. Transfer Pathways and Chain Refoulement

Risk assessments should not focus solely on conditions in the final destination State.

Authorities should also consider foreseeable risks arising during transfer and transit, including immigration detention, abuse by criminal networks, trafficking, extortion, violence, or other forms of mistreatment encountered along migration routes.

Similarly, States must guard against chain refoulement. A transfer may be unlawful where an individual is sent to an intermediary State that subsequently removes them to a country where they face a real risk of torture or other prohibited treatment. [8]

International obligations cannot be avoided through indirect transfers. States must assess the foreseeable consequences of removal as a whole, including the possibility of onward transfer.

I. Third Country Arrangements / Return Hubs

Although third-country arrangements are not per se prohibited under international law, they present particular legal and practical challenges. And not all third-country transfers raise identical legal issues. Arrangements for migration management or prisoner transfers engage different legal frameworks and may give rise to different forms of risk. This paper does not go into the exact specificities of each form of third country arrangement.

However, regardless of the arrangement, there is a continuing obligation of the transferring State to ensure that individuals are not exposed, directly or indirectly, to torture or other prohibited ill-treatment. States cannot avoid their international obligations simply by transferring responsibility to another jurisdiction. [9]

In some cases, there are real risks (in addition to those arising under the prohibition of torture) that could prevent removal or transfer, such as prolonged arbitrary deprivation of liberty, extended legal uncertainty such that people are left in limbo, lack of effective safeguards against torture or ill-treatment, or the absence of meaningful monitoring.

J. Returns and International Cooperation

Non-refoulement should not be understood as an obstacle to lawful international cooperation.

States have legitimate interests in managing migration, protecting public safety, combating transnational crime and ensuring accountability for criminal conduct. Deportation and extradition remain important and lawful tools of international cooperation. They also bear obligations under international human rights law that must be observed while seeking to achieve other priorities.

K. Conclusion

The principle of non-refoulement remains an indispensable safeguard against torture. It ensures that States do not expose individuals to foreseeable risks of torture or other prohibited treatment through deportation, extradition or other forms of transfer.

At the same time, the principle should not be misunderstood as a blanket barrier to removals. International law does not require open borders, nor does it tolerate impunity. It requires lawful solutions.

The present challenge is not whether non-refoulement should be weakened or strengthened, but how it should be implemented. Better procedures, clearer guidance, more rigorous risk assessments, credible diplomatic assurances, and effective monitoring arrangements can help ensure that States meet their human rights obligations while maintaining confidence in lawful systems of extradition, deportation and migration management.

The objective is not to prevent returns or to shield persons from justice. It is to ensure that persons at risk of torture and other prohibited treatment or punishment are protected from harm.

Alice Edwards
United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

20 July 2026

[9] See, HRC, M.I. et al. v Australia, No. 2749/2016; and Nabhari v Australia, No. 3663/2019.