A. Who is Covered by the OPCAT?

In spite of the existence of a separate refugee protection regime, refugees and asylum-seekers are entitled to benefit from the protection of other human rights instruments. According to the UN Human Rights Committee, ‘the general rule is that each one of the rights [under international human rights law] must be guaranteed without discrimination between citizens and aliens.’Footnote ⁵¹ As the 1951 Refugee Convention does not contain the range of rights available under international human rights law—in particular it does not contain explicit provisions either in relation to freedom from arbitrary detention or from torture—the human rights regime becomes an important complement.Footnote ⁵² The Executive Committee of the High Commissioner's Programme in 1997 ‘reiterate[d] … the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee law standards as set out in relevant international instruments.’Footnote ⁵³ As human beings, refugees and asylum-seekers benefit from international human rights law, including the protections afforded by the UNCAT and via the prevention mandate of the OPCAT.

B. What Constitutes a Deprivation of Liberty and a ‘Place Of Detention’ for the Purposes of the Work of the OPCAT Mechanisms?

Article 4(1) of the OPCAT provides that visits may be conducted to:

For the purposes of the OPCAT, Article 4(2) defines a ‘deprivation of liberty’ as:

Article 4 is ambiguous in so far as there appear to be two different standards in place between its sub-paragraphs: Article 4(1) focuses on any publicly authorised place of deprivation of liberty compared with Article 4(2), which deals with public or private custodial settings where a person is not permitted to leave at will by judicial, administrative, or other order. The emphasis on the former is on the place of detention, whereas the latter is on the person in detention. The second sub-paragraph appears more restrictive than the first. In resolving this ambiguity, general principles of treaty interpretation require that any interpretation be in good faith and in light of the object and purpose of the treaty.Footnote ⁵⁶ The object and purpose of the OPCAT is the prevention of torture and this impresses for a generous interpretation.

The UNHCR, in contrast, defines detention as:

The key distinction between the OPCAT and the UNHCR definitions is that the latter accepts situations where the freedom of movement of a refugee is ‘substantially curtailed’ and in doing so, it does not require a complete deprivation of liberty as otherwise required by international law. The OPCAT definition, in comparison, focuses more on either the place of detention or whether an individual is being held or is suspected of being held against their will and whether their detention was ordered by judicial, administrative, or other authority, or at its instigation or with its consent or acquiescence. Moreover, the UNHCR definition expressly includes closed camps.

The UNHCR notes that there is a ‘qualitative difference’ between detention and other restrictions on freedom of movement.Footnote ⁵⁸ With this in mind, the UNHCR holds that ‘[p]ersons who are subject to limitations on domicile and residency are not generally considered to be in detention.’Footnote ⁵⁹ Even though arbitrary or unreasonable restrictions on movement that do not meet the threshold of a deprivation of liberty may continue to breach international law, they appear to fall outside the mandate of the OPCAT which concerns institutional or physical confinement.Footnote ⁶⁰

In addition to the UNHCR definition, the European Council Directive on minimum standards for the reception of asylum-seekers defines ‘detention’ as ‘confinement … within a particular place, where the applicant is deprived of his or her freedom of movement.’Footnote ⁶¹ The UNHCR commentary on this definition notes that the EU's definition does not extend as far as its own.Footnote ⁶²

In spite of these discrepancies between available definitions, and the OPCAT's immanent ambiguity, the OPCAT definition covers a very broad range of places where the option to leave at will is not available, including not only police stations, prisons, or military facilities, but also immigration centres.Footnote ⁶³ It is not necessary that the only option available is to leave the country, as unhelpfully required by UNHCR's definition. In support of this analysis, the European Court of Human Rights has held that the mere fact that an asylum-seeker could be returned to a transit location did not preclude a finding of a deprivation of liberty. The Court has stated that ‘this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.’Footnote ⁶⁴ That is, an ability to leave the place of detention must be more than a mere theoretical possibility.

Under the OPCAT, the detaining institution can be one that is public or private,Footnote ⁶⁵ or presumably a combination of the two, such as statutorily mandated detention in privately-run institutions, which is increasingly becoming a common detention practice adopted for asylum-seekers and/or refugees in a number of countries.Footnote ⁶⁶ The OPCAT also applies to refugees confined by judicial, administrative, or other order in closed refugee camps, or who are otherwise restricted to camps with the consent or acquiescence of the State, including arguably by its location in isolated or remote sites. Extraterritorial processing or holding centres also fall within Article 4, provided they are under the jurisdiction or control of the State party, which is addressed below.

C. When Does a State Have Jurisdiction and/or Control Over a Place of Detention for the Purposes of the Work of the OPCAT?

A further element of Article 4(1) of the OPCAT is that ‘any place’ to be visited by the OPCAT mechanisms is to be under the ‘jurisdiction and control’ of the State party. For most detention centres, this additional criterion is unlikely to present any legal difficulties. However, it raises a number of legal issues in the context of extraterritorial detention centres. In particular, can the SPT or the NPMs visit a State party's detention facility if it is located in a non-State party? Can the SPT or the NPMs visit detention centres owned and managed by non-State parties located within a State party? While these questions are also dealt with later in this article under Part IV in connection with extraterritorial detention centres, this section presents some initial insights into the legal issues arising under Article 4(1).

In the sense of Article 4(1), jurisdiction is taken to mean ‘the competence of the State in international law.’Footnote ⁶⁷ It is well accepted that of the range of bases of jurisdiction—territory, nationality, effect, protection, passive personality, and universalityFootnote ⁶⁸—territoriality is the least controversial.Footnote ⁶⁹ Jennings has stated that ‘there is general agreement that a State may not, unless by permission, exercise its power in a physical sense in the territory of another State.’Footnote ⁷⁰ However, jurisdiction may be concurrent with the jurisdiction of other States or it may be exclusive.Footnote ⁷¹

No definitions of ‘jurisdiction’ or ‘control’ are contained in the OPCAT, but arguably any of the heads of jurisdiction available at international law would apply in the context of the OPCAT. This would include the ‘effective control’ principle, namely that a State is responsible for any ‘acts of authorities, whether performed inside or outside national boundaries … [that] produce … effects outside their own territory.’Footnote ⁷² Put simply, detention facilities under the de facto effective control of a State would fall within the jurisdiction of that State.Footnote ⁷³

The OPCAT Preamble recalls Articles 2 and 16 of the UNCAT, in particular that they oblige each State party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment ‘in any territory under its jurisdiction’.Footnote ⁷⁴ Although the parent treaty emphasises territorial links, other UNCAT provisions acknowledge additional heads of jurisdiction.Footnote ⁷⁵ The Committee against Torture has also applied the principle of ‘effective control’Footnote ⁷⁶ and has stated that certain human rights obligations, such as non-refoulement, apply to individuals detained outside a State party's territory.Footnote ⁷⁷ Likewise, the Human Rights Committee has opined that jurisdiction under the ICCPR extends ‘to anyone within the power or effective control of that State party, even if not situated within the territory of the State party.’Footnote ⁷⁸ The same position has been accepted by the Inter-American Commission on Human Rights;Footnote ⁷⁹ while the International Court of Justice (‘ICJ’) has observed that ‘while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory,’Footnote ⁸⁰ including where military personnel [or other officials] commit human rights violations in another's territory.Footnote ⁸¹ The Human Rights Committee has further commented that human rights obligations are not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers, refugees, migrant workers, and other persons, who may find themselves in the territory or subject to the jurisdiction of the State party.Footnote ⁸²

On a strict literal reading of Article 4, the place of detention must be under both the jurisdiction and control of the State for the OPCAT to have effect, suggesting some difference in meaning and scope between the two terms, and that both components need to be satisfied. However, the French version of the text uses ‘or’ not ‘and’, thus leading to arguments that the more human rights friendly version ought to be favoured.Footnote ⁸³ Generally, if a State party has jurisdiction, ipso facto it is assumed that control is simultaneously being exercised. As the OPCAT mechanisms possess mandates to visit ‘places of detention’ (rather than incidences of detention), it is unlikely that they will be concerned with situations of an alleged exercise of control not within a particular physical detention space.

Where a detention facility is located within the territory of a State Party, it is widely accepted that it is within that State's jurisdiction and control, whether it exercises that control legally, politically, physically, financially, or administratively. According to the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, States include all organs and agencies of the government or other persons or bodies exercising governmental authority.Footnote ⁸⁴ Further included are other persons or entities not an organ of the State but which are empowered by the State to exercise elements of governmental authority.Footnote ⁸⁵ On this basis, public as well as private prisons and detention facilities would satisfy Article 4(1), the latter to the extent that they are generally granted permission to operate by law or other administrative order of the State. In addition, Article 4(2) explicitly provides that public and private custodial settings are included within the scope of the OPCAT.Footnote ⁸⁶ Such places of detention were exactly the situations the drafting conference had in mind in preparing the protocol. By analogy, the granting of permission to non-State parties to operate detention centres on a State party's territory would not remove the mandate of the OPCAT mechanisms to inspect them as they would still fall within the territorial jurisdiction of the host State party.

The more complex question concerns detention facilities located outside the State Party in a Non-State Party. This is dealt with in more detail in Part IV. D. At this juncture, it is sufficient to note that although there is nothing in the OPCAT that requires any place of detention to be located within the territory of the State party for its mandate to be activated, detaining asylum-seekers or refugees in other non-State parties is likely to frustrate the Optional Protocol's object and purpose. It is further likely to bring States into breach of their explicit OPCAT commitments. Moreover, general principles of international law that do not allow States to escape their international obligations by exercising jurisdiction outside their national territory continue to apply.

D. What is meant by Torture and Cruel, Inhuman or Degrading Treatment or Punishment for the Purposes of the OPCAT?

The OPCAT does not define other relevant terms such as ‘torture’ or ‘cruel, inhuman or degrading treatment or punishment.’ The only guidance as to the meaning of these terms within the text of the Optional Protocol is Article 2(2), which provides that the Sub-Committee is mandated to carry out its work ‘within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty.’Footnote ⁸⁷ Similarly, in making recommendations, the NPMs are to ‘tak[e] into consideration the relevant norms of the United Nations.’Footnote ⁸⁸ One of the roles of the NPMs is to submit proposals and observations concerning existing or draft legislation and, in this way, they can contribute to ensuring that national laws are brought into line with international standards.Footnote ⁸⁹ These provisions should be interpreted to mean, at a minimum, that the SPT and the NPMs are not at liberty to disregard UN norms in favour of more restrictive national standards.

But which international standards ought to apply? The preventive role of the OPCAT mechanisms calls for a broad definition of torture and other forms of ill-treatment. There is no express limitation in the OPCAT that the definition of torture as defined in the UNCAT and as interpreted by the Committee against Torture is to be the accepted definition for the purposes of the work of the SPT or the NPMs.Footnote ⁹⁰ In fact, there is no mention of any official relationship between the Committee against Torture and the SPT, with the exception of Article 16(3) and (4).Footnote ⁹¹ On the one hand, it may be argued that interpretations elaborated by the Committee against Torture should be prioritised in order to ensure schematic consistency between the parent and subsidiary treaties. After all, the standards developed by the Committee against Torture are authoritative statements of what it considers best practice (or, at least, minimum standards).

On the other hand, it may equally be argued that the broadly phrased statement in Article 2(2) of the OPCAT is to be interpreted as implying that the mandates of the SPT and the NPMs are not strictly limited to the meaning of torture and ill-treatment as understood by the UNCAT or the Committee against Torture.Footnote ⁹² Even Articles 1(2) and 16(2) of the UNCAT state that the definitions therein are ‘without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.’ The SPT and the NPMs can and should borrow interpretations of torture and other forms of ill-treatment from a wide range of international and regional bodies in the hope that it may prevent torture to the highest possible standards. Malcolm Evans has argued that definitions in other jurisdictions are better suited to the prevention function than the definition in the UNCAT.Footnote ⁹³ In particular, he asserts that the ‘relatively flexible and open-textured approach’ of Article 3 of the ECHR (equivalent to Article 7 of the ICCPR) ‘makes it easier to “ground” prevention recommendations’,Footnote ⁹⁴ than the criminal law style definition of the UNCAT. Adopting the most flexible definition of torture to guide the work of the OPCAT mechanisms would further be important in the refugee/asylum context due to their particular vulnerability to non-traditional forms of torture or ill-treatment.

Clearly, refugees and/or asylum-seekers may be tortured in detention within the sense of Article 1 of the UNCAT. However, they may also be subjected to torture and other forms of ill-treatment that are not pursued for interrogation purposes or to force a confession, or which are not committed at the hands of public officials, or with their consent or acquiescence. For example, they often face torture or torture-like injuries committed by State and non-State actors, such as rape, sexual violence, human trafficking, sexual and economic exploitation, forced recruitment into armed groups, or deprivation of economic dignity, which do not always meet the criminal law style definition in the UNCAT.

A second reason why the OPCAT mechanisms are encouraged to utilise standards of treatment and definitions of torture beyond Article 1 of the UNCAT is because, unlike the UNCAT, the Optional Protocol has an explicit mandate over ‘private custodial settings’ and although arguably such settings could fall within the mandate of the UNCAT where they operate under order or with the acquiescence of the State, many may not.

E. What Other Standards May Be Applicable to the Work of the OPCAT Mechanisms in the Refugee/Asylum Context?

In addition to protection from torture and arbitrary detention under international human rights law and specific guarantees against penalisation for illegal entry or presence or other restrictions on freedom of movement in the 1951 Refugee Convention,Footnote ⁹⁵ other protection standards relevant to asylum-seekers and refugees have been developed by the international community. These standards should be used as supplementary materials to guide the work of the OPCAT mechanisms in the refugee/asylum context. The UNHCR states that there is a need to distinguish between standards of treatment owed to refugees and/or asylum-seekers held in connection with criminal offences or detained in respect of expulsion orders for national security or public order grounds, and those standards where detention is based merely on illegal entry or presence.Footnote ⁹⁶ In the latter situation, the UNHCR advocates that the treatment should be ‘as humane as possible’ and that the detention should not have ‘the “punitive” character associated with detention or imprisonment [in the former situation]’.Footnote ⁹⁷ Whether individually or cumulatively these conditions of detention amount to torture or cruel, inhuman or degrading treatment, or inhumane conditions, is a question of both law and fact.

The Executive Committee of the High Commissioner's Programme has expressed the opinion that ‘in view of the hardship which it involves, detention should normally be avoided [for refugees and asylum-seekers].’Footnote ⁹⁸ This view is reflected in UNHCR's Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers.Footnote ⁹⁹ In particular, the Executive Committee in 1986 stated that the permissible reasons for detention should be limited. Detention should only be resorted to if it is considered necessary, and only on grounds prescribed by law in order to verify identity; determine the elements of an asylum claim; to deal with persons who have destroyed their travel and/or identity documents or who have used fraudulent documents in order to mislead authorities; or to protect national security or public order.Footnote ¹⁰⁰ UNHCR in its revised guidelines refers to these grounds as ‘exceptional grounds for detention’.Footnote ¹⁰¹

The 1986 conclusion further stressed that conditions of detention must be humane, including that refugees and asylum-seekers shall, wherever possible, not be accommodated alongside common criminalsFootnote ¹⁰² or be located in areas where their physical safety is endangered;Footnote ¹⁰³ that any detention measures be subject to judicial or administrative review;Footnote ¹⁰⁴ that access to the UNHCR be granted;Footnote ¹⁰⁵ and that detention ought not be unduly prolonged.Footnote ¹⁰⁶ Earlier and subsequent resolutions have criticised the arbitrary or unjustified detention of children;Footnote ¹⁰⁷ have discouraged detention or custody in connection with an expulsion order except for reasons of national security or public order;Footnote ¹⁰⁸ and have dealt with detention within the context of voluntary repatriation.Footnote ¹⁰⁹

In 1985, the UN adopted a Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live, which included rights not to be arbitrarily or unlawfully detained,Footnote ¹¹⁰ or subjected to torture or cruel, inhuman or degrading treatment or punishment.Footnote ¹¹¹ This was followed by the insertion of similar provisions in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990Footnote ¹¹² (Migrant Workers' Convention). Even though refugees are expressly excluded from the coverage of the Migrant Workers' Convention, it may apply to asylum-seekers.Footnote ¹¹³

The Executive Committee in 2002 adopted a conclusion on reception conditions, making specific mention of the importance that any reception measures ‘respect human dignity and international human rights law and standards.’Footnote ¹¹⁴ Although the earlier Conference Room Paper on reception standards, drafted as part of the Global Consultations on International Protection in 2001, referred in an annex to the general principle that asylum-seekers should not be detained, this language did not make its way into the Executive Committee Conclusion the following year.Footnote ¹¹⁵ The Conference Room Paper set out a number of standards of treatment for asylum-seekers in detention, namely that they have rights to be informed of the reasons for their detention and of their corresponding rights in a language and in terms they can understand; to legal assistance; to conditions of detention that are humane, with respect for the inherent dignity of the person, and prescribed by law; and access to the UNHCR or non-governmental organizations.Footnote ¹¹⁶ Many of these standards have also been recognised by the UN Human Rights Committee in relation to asylum-seekers.Footnote ¹¹⁷

In terms of specific references to torture or cruel, inhuman or degrading treatment or punishment outside the context of refoulement,Footnote ¹¹⁸ the Executive Committee in 1981 stated that asylum-seekers should, even if temporarily admitted to the territory pending arrangements for a durable solution, be treated in accordance with ‘basic human standards,’ including treatment ‘as persons whose tragic plight requires understanding and sympathy.’ This same paragraph went on to state that ‘[t]hey should not be subjected to cruel, inhuman or degrading treatment.’Footnote ¹¹⁹

At the European level, the EU Council Directive on minimum reception standards provides that: ‘When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.’Footnote ¹²⁰ The UNHCR in its annotated commentary on the directive pointed out that such national legislation would benefit from the inclusion of provisions on the conditions of detention in order to ensure humane treatment with respect for the inherent dignity of the person.Footnote ¹²¹ In addition, the UNHCR listed a number of other factors that ought to be considered, including the particular situation of children, pregnant women, and asylum-seekers affected by trauma and other psychological illness.Footnote ¹²²

A. Airports, Seaports, Border Posts, and ‘International Zones’

In spite of efforts by some governments to exclude the application of international law from airports, islands, or other border territory, it is not permitted by the rules of treaty interpretation. The Vienna Convention on the Law of Treaties 1969 makes clear that international legal obligations apply to the entire territory of a State party, unless specified otherwise.Footnote ¹²³ Furthermore, the European Court of Human Rights has stated that it is irrelevant that an airport zone (or by analogy border or other territory) is called an ‘international zone’; it is still part of the territory of the State and human rights obligations continue to apply.Footnote ¹²⁴

Detention facilities located in so-called ‘international zones’ or in other locations that have been purportedly ‘excised’ or removed from the application of national asylum or immigration laws,Footnote ¹²⁵ therefore, continue to fall within the mandate of the OPCAT mechanisms. These facilities ought to be visited regularly by the OPCAT mechanisms, regardless of their status under national law. There is precedent for this in the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which regularly visits airport holding cells.Footnote ¹²⁶

Any difficulties in visiting such locations are likely to be practical, rather than definitional or legal in nature, although discrepancies between national and international definitions of detention may well impact on the ability to achieve the desired aims of any investigation. Although periodic and ongoing visits to border detention facilities would be possible by the SPT or the NPMs, asylum-seekers and refugees subject to detention at land borders, seaports, or airports are often only in such zones for limited periods, their existence there is not always known or acknowledged by governments, and failure to register individuals upon arrival is not uncommon in some countries.Footnote ¹²⁷ Moreover, they may be expelled or transferred without access to appropriate judicial or administrative procedures, including refugee status determination. Thus, fully-functioning national preventive mechanisms could become an important first line of defence, including by alerting the SPT to new situations of detention. Key issues to be investigated in the context of asylum-seekers and/or refugees in detention facilities at border zones ought to include ensuring humane conditions of detention, access to asylum procedures and UNHCR if requested, and importantly, protection against refoulement to threats to life or freedom, or torture or cruel, inhuman or degrading treatment or punishment.Footnote ¹²⁸ It is at these earliest stages of entry that potential violations of international and customary non-refoulement obligations are most at risk.

B. Immigration or Administrative Detention

A large number of industrialized countries detain asylum-seekers for part or the duration of asylum procedures, with a wide spectrum of policies in existence.Footnote ¹²⁹ Policies range from mandatory and non-reviewable detentionFootnote ¹³⁰ to temporary and initial detention for the purposes of initial registration and health and security checks of periods of seven to 10 days, or discretionary detention upon the authorization of immigration officers.Footnote ¹³¹ Other countries operate ‘semi-open’ detention centres for the duration of the asylum process, in which an asylum-seeker needs leave permission to be granted by centre officials for specific periods of time.Footnote ¹³² Still other countries have adopted policies of selective detention, in which asylum-seekers originating from particular countries are singled out for detention.Footnote ¹³³ Many of these policies do not conform to the requirements of international law prohibiting arbitrary detention, including the right of asylum-seekers to an individual assessment as to the necessity and proportionality of detention, the right to periodic review before a court, or general prohibitions against discrimination.

The UNHCR reported in 1999 on some of the commonly identified deficiencies in relation to administrative detention, including serious overcrowding; failure to provide separate quarters for men and women; and living spaces which lack appropriate furniture and sanitary and other facilities, such as proper bathing or washing areas or outdoor space for recreational purposes. In some cases, the UNHCR has argued that such inadequate living conditions may amount to breaches of human dignity, privacy, or inhuman and degrading treatment.Footnote ¹³⁴ Similar concerns have been identified in Europe by the Jesuit Refugee Service.Footnote ¹³⁵ Still other reports document the serious negative psychological and developmental effects of detention on children.Footnote ¹³⁶

The issue for the OPCAT mechanisms is whether these types of immigration control measures constitute a deprivation of liberty and thereby invoke its mandate to inspect them. I would argue that many of these facilities amount to deprivations of liberty or places of detention within the meaning of Article 4 of the OPCAT. Even the ‘semi-open’ centres operate in effect as places of detention for the purposes of the OPCAT, the right to leave at will not being available. As noted in Part III, adopting a broad approach to Article 4 matches the prevention purpose of the OPCAT.

C. Closed Refugee Camps

The majority of the world's refugees are located in developing countries and are housed in camps. The US Committee on Refugees and Immigrants estimates that approximately 8.8 million refugees are housed in refugee camps for five years or longer.Footnote ¹³⁷ Frequently the living conditions in such camps are difficult, if not deplorable.Footnote ¹³⁸ Opening up some of these camps to additional scrutiny, such as by the OPCAT mechanisms, could reduce acts of torture and ill-treatment occurring within them. Three questions need to be addressed in order for the OPCAT mechanisms to visit and inspect such locations. First, are closed refugee camps places of detention? Secondly, what would constitute torture or other forms of inhuman or degrading treatment in such locations? Are there any special standards? Thirdly, given the role of the UNHCR in the day-to-day management of many such camps, is the State party or the UNHCR responsible for the conditions in these camps, including any violations, and for instituting prevention practices? These questions will be dealt with in turn below.

First, refugees that are assigned to camps by way of judicial, administrative, or other orders under so-called camp confinement policies are within detention for the purposes of the OPCAT.Footnote ¹³⁹ Closed refugee camps deny refugees the right to leave at will. Even where camps operate under only informal confinement policies, their location in remote, inhospitable, and/or semi-arid areas, away from transport links and close to borders, can mean that refugees are effectively restricted to those areas.Footnote ¹⁴⁰ In its definition of ‘detention,’ the UNHCR distinguishes between deprivations of liberty and designation to live in particular locations; suggesting that the latter may implicate freedom of movement rightsFootnote ¹⁴¹ or constitute a penalty within Article 31 of the 1951 Refugee Convention (depending on the location and/or conditions), but that such dispersal policies are not equivalent to detention. Closed refugee camps operate as de facto (as well as de jure, subject to the particular situation) detention centres. Likewise, dispersal programmes that transfer refugees to remote or isolated locations may similarly amount to detention under Article 4 of the OPACT. Whether a refugee camp constitutes a de facto place of detention is a question of fact and degree, regardless of its name or label.

Secondly, in assessing the standards of treatment to be enjoyed by refugees in such camps, minimum standards adopted by the Executive Committee in 1981 are of useful guidance. In relation to the protection of asylum-seekers and refugees in large-scale influx, the Executive Committee recommends that they be located by reference to their safety and well-being, as well as the security of the country of refuge; that they be provided with basic necessities of life; that the principle of family unity be respected and that assistance be provided to trace relatives; that minors and unaccompanied children be adequately protected; that the sending and receiving of mail, and receipt of material assistance from friends, be allowed; that access to UNHCR be permitted; and that, where possible, appropriate arrangements be made for the registration of births, deaths, and marriages. In other words, the Conclusion calls on States to treat such persons with ‘special understanding and sympathy’.Footnote ¹⁴² Of course, these minimum standards are not the full range of rights enumerated in the 1951 Refugee Convention to which the majority of the prima facie refugees in the developing world do not have access.Footnote ¹⁴³ Under the OAU Convention, countries of asylum in Africa shall, for reasons of security, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin.Footnote ¹⁴⁴ Again, this is not always respected in practice.

Whether conditions of detention below these standards constitute torture or other inhuman or degrading treatment is a technical, legal question. However, in the light of the prevention purpose of the OPCAT, it is relevant only that individually or cumulatively conditions in these camps may fall below international standards. There is case law to provide content and meaning to the terms in issue. For example, the United Kingdom House of Lords has ruled that concurrent denial of both work rights and social security benefits amounts to degrading treatment;Footnote ¹⁴⁵ while the South African Supreme Court of Appeal has ruled that issuing a blanket prohibition on employment for asylum-seekers, without offering social benefits, violated the constitutional right to dignity.Footnote ¹⁴⁶ Following these cases, it is arguable that reductions in food rationing below the World Health Organization's minimum standards could also amount to inhuman or degrading treatment; likewise the prolonged nature of these camps or their isolated location, leading to serious psychological and other health problems.Footnote ¹⁴⁷ Given the prevention framework of the OPCAT—rather than a focus on violations—all such issues ought to be taken into account during inspection missions.

In addition to these standards of treatment, some refugee camps are notorious for violence,Footnote ¹⁴⁸ such as rape, sexual abuse, sexual exploitation, abduction, intimidation, forced military recruitment, and physical assaults. Many of the perpetrators of such violence are non-State actors, such as other refugees, armed groups, government officials, UN peacekeepers, or UN or NGO humanitarian workers.Footnote ¹⁴⁹ International law has increasingly recognised such acts as torture or inhuman or degrading treatment, including when perpetrated by non-State actors in situations where the State has failed to protect or prevent such acts. Taking up such issues renders the OPCAT mechanisms relevant to detention in all its forms. It is the view of the Human Rights Committee, for example, that rape and sexual violence, domestic violence, female genital mutilation, lack of access to abortions for rape victims, and forced abortion or sterilisation, constitute either torture or a lesser form of ill-treatment.Footnote ¹⁵⁰ The European Court of Human Rights has similarly held that rape, including outside State custody, is a form of torture.Footnote ¹⁵¹ Likewise, the Inter-American Commission on Human Rights has treated rape and sexual violence as either torture or inhuman treatment.Footnote ¹⁵² Within the framework of State custody or consent or acquiescence, the Committee against Torture has incorporated within its torture definition rape and sexual violence, both inside and outside State custody, female genital mutilation, domestic violence, and punishment for having transgressing social mores.Footnote ¹⁵³

The third issue for the OPCAT mechanisms in the context of refugee camps is the fact that such camps are often under the direct management of non-State actors, such as the UNHCR. Many refugee camps are managed and staffed by the UNHCR (and its implementing partners) by virtue of its 1950 Statute or various General Assembly resolutions, primarily due to lack of resources or political will of host governments, including particularly in countries not party to the 1951 Refugee Convention. The traditional view is that while the UNHCR may be exercising de facto sovereignty, it is ‘de jure merely an invited guest, assisting in the host State's performance of its obligations in a manner wholly governed by the terms of the invitation’.Footnote ¹⁵⁴ This is consistent with UNHCR's own position that the primary responsibility for international protection rests with the host government, and only secondarily with the UNHCR.Footnote ¹⁵⁵ According to the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, a State's responsibility extends to actions or omissions attributable to the State under international law and that constitute a breach of an international obligation.Footnote ¹⁵⁶ Thus, where a State fails to prevent torture or cruel, inhuman or degrading treatment or punishment committed by non-State actors, including by the UNHCR or its partner agencies, it continues to bear international responsibility by way of omission.

However, even UNHCR's position does not exclude concurrent or exclusive responsibility of an international organisation for human rights violations. In practice, the State may have delegated day-to-day management to the UNHCR. Andrew Clapham has argued that international organizations are capable of bearing international responsibility, even as States retain their own liability.Footnote ¹⁵⁷ The UNHCR's Statute provides that ‘[t]he [UNHCR], acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute …’.Footnote ¹⁵⁸ Moreover, under the ILC's draft Articles on Responsibility of International Organizations, the UNHCR would be responsible for any acts or omissions that are attributable to the organisation and which constitute a breach of an international obligation.Footnote ¹⁵⁹ The International Court of Justice has held that the United Nations ‘is a subject of international law and capable of possessing international rights and duties …’Footnote ¹⁶⁰ Thus, the UNHCR can be said to possess duties under international human rights law, including international obligations not to commit as well as to prevent acts of torture or cruel, inhuman or degrading treatment or punishment.Footnote ¹⁶¹ However, as Ralph Wilde has noted, a balance needs to be struck between the obligations of the State and those of UNHCR, in view of the fact that the latter is not a sovereign State.Footnote ¹⁶²

Despite political and legal difficulties, it is important that the UNHCR and other international organisations operating in such locations are held accountable for human rights violations, including failures to institute systems to prevent torture and other sub-standard treatment. Refugees, as first and foremost human beings, must be entitled to the same rigour of investigation and inquiry as other individuals in detention. Although problematic, this is so even though it may result in one UN body, albeit an independent treaty body (the SPT), technically investigating another UN agency (the UNHCR); or alternatively, internationally mandated NPMs inspecting the standards of care of international agencies. This in no way absolves, however, the concomitant responsibility of the State party for the care of those within its jurisdiction or under its control [or for that matter, the international community under responsibility-sharing principles].

D. Extraterritorial Processing or Holding Centres

Removing asylum-seekers to other countries for processing is a threat to the underlying humanitarian spirit of the international refugee protection regime, not to mention broader principles of international solidarity and responsibility-sharing. The idea has appeared in several forms, including national and regional ‘safe third country’ programmes,Footnote ¹⁶³ bilateral and regional readmission agreements, domestic ‘first country of asylum’ policies or other more rudimentary schemes that involve the simple transfer of asylum-seekers to other countries under bilateral agreements. Madeleine Garlick asserts that although some extraterritorial initiatives are supported by neither the vast majority of EU States nor the UNHCR, there are some ‘lingering’ fears that they could resurface or that current EU Regional Protection Programmes in regions of origin could be extended for more dubious purposes.Footnote ¹⁶⁴ Moreover, such proposals have not been removed permanently from international or regional dialogues, but occasionally re-appear in various fora.

External asylum processing became particularly popularized in the early 2000s, following the Tampa incident in 2001. The Australian government transferred 433 Afghan intercepted asylum-seekers, who had entered Australian territorial seas and others who were later picked up by the Australian coastguard floating in international waters, to Nauru and Papua New Guinea in exchange for foreign aid.Footnote ¹⁶⁵ Subsequently, the European Union, led by the United Kingdom, put forward a proposal for the transfer of asylum-seekers to transit processing centres, to be located outside the EU.Footnote ¹⁶⁶ The proposal also included the idea of ‘regional protection areas’ that envisaged the removal of rejected asylum-seekers to these areas pending return to their countries of origin. In 2004 the German Interior Minister Otto Schily advocated more far-reaching proposals to set up ‘safe zones’ or ‘camps’ in North Africa with the financial assistance of the EU. The Austrian Minister of the Interior similarly suggested that such a scheme might be applied also to the EU's eastern borders.Footnote ¹⁶⁷ Although these proposals have been shelved amid widespread criticism from the UNHCR and NGOs, and in spite of disapproval from the European Parliament,Footnote ¹⁶⁸ Italy has entered into secret bilateral negotiations with Libya to accept ‘irregular migrants’ arriving on the former's territory.Footnote ¹⁶⁹

The UNHCR's State of the World's Refugees 2006 clarifies that the main problem with external processing centres is the ‘necessity of barbed wire’; or in other words, detention.Footnote ¹⁷⁰ Under the ‘Pacific Solution,’ asylum-seekers were housed in fenced and isolated camps on remote island-nations that were not parties to the 1951 Refugee Convention.Footnote ¹⁷¹ Asylum-seekers deemed not to be refugees and unable to repatriate to their countries of origin were, for a range of legal and practical reasons, left to languish in such places for extended periods.Footnote ¹⁷² While not explicit within the UK/EU proposal, the UNHCR and Amnesty International accepted that detention, even temporary detention, would be a necessary feature of these arrangements.Footnote ¹⁷³ Similar concerns are raised in relation to the Italy-Libya agreement, which apparently includes the construction of holding or transit centres in Libya, which may be closed (ie detention) or with some movement restrictions.

A discussion at the First Annual Conference on the OPCAT in 2007 called for access to these facilities,Footnote ¹⁷⁴ although access is far from a straightforward issue. As noted above in Part III, extraterritorial detention or holding centres fall under the purview of the OPCAT mechanisms where either jurisdiction or control is exercised by the State party. Clearly, where both the sending and the receiving States are parties to the OPCAT, the SPT and the NPMs are authorized to visit any such places of detention. A more challenging issue in this context for the SPT and the NPMs will be to determine which State actually exercises jurisdiction or control over such centres, or whether concurrent jurisdiction is being exercised. If, as a matter of fact or law, both countries exercise jurisdiction or control simultaneously, the SPT and the NPMs would need to take this into account in directing their recommendations. Relevant questions to determine the extent of the jurisdiction or control might include whether the facility in question is either financed or managed by the sending State or its agents. Are officials or agents of the sending State active in the facilities, either in relation to oversight or day-to-day operations? What are the terms of any agreement between the sending and receiving State?

Where a deal has been struck between two States in relation to the inter-country transfer of asylum-seekers and/or refugees, the general position at international law provides that such agreements cannot lead to the release of responsibility for the sending State if it is aware of or can prevent mistreatment in the receiving State (such as within a detention facility), even if it plays no subsequent role in the day-to-day or oversight operations there. At a minimum, non-refoulement obligations would apply.Footnote ¹⁷⁵ This position is based on the principle that it would be unconscionable to permit a State party to perpetrate human rights violations on the territory of another State [or allow those violations to occur by omission], such violations it could not perpetrate on its own territory.Footnote ¹⁷⁶

The ICJ, for example, has clarified that the drafters of the ICCPR (and, therefore, other human rights instruments) did not intend to allow States to escape their obligations by exercising jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but that of the State of residence.Footnote ¹⁷⁷ In this way, it should be considered impermissible for States to circumvent their responsibilities under international law simply by transferring asylum-seekers and refugees to other States and detaining them there. This would be antithetical to basic understandings of treaty interpretation and underlying human rights principles. Moreover, Chapter II of the ILC Articles on State Responsibility provides that responsibility for the same conduct may be attributable to several States at the one time.Footnote ¹⁷⁸

But the real issue in such situations is one of access. Can the OPCAT mechanisms visit and inspect facilities located in non-State parties? As a non-State party has no obligations to cooperate with the OPCAT mechanisms, the ability to visit such locations will be at the discretion of the non-State party. In fact, only the State exercising territorial jurisdiction would be in a position to grant or deny access to its territory to the SPT or the NPMs. Even though the sending State may as a matter of international law retain full or partial international responsibility for the acts or omissions carried out at those places of detention, only the State exercising territorial jurisdiction is in a position to grant entry rights and visas under national immigration laws.

In essence, such detention facilities directly undermine the prevention purpose of the OPCAT. Specifically, the act of sending asylum-seekers or refugees by a State party to the OPCAT to detention in a non-State party may bring the State party into breach of its explicit obligations under the OPCAT. First, such schemes prevent the OPCAT mechanisms from accessing such places automatically in breach of a number of provisions of the OPCAT.Footnote ¹⁷⁹ Whether national preventive mechanisms are able to visit such detention facilities is likely to be dependent on the bilateral or multilateral agreement underpinning the arrangement, but, again, any lack of access would bring the sending State into breach of its obligations under the OPCAT. Secondly, such schemes undermine the object and purpose of the OPCAT and breach treaty principles to act in good faith.Footnote ¹⁸⁰ Extraterritorial detention in non-State parties constitutes a male fides observance of the OPCAT in agreeing to its terms and then purposefully depriving individuals of their liberty in locations inaccessible to the OPCAT mechanisms.

E. Additional Issues Relevant to all Four Refugee/Asylum Situations

In addition to the situation-specific issues outlined above, there are two further issues that are likely to arise as the OPCAT mechanisms engage in the refugee/asylum field. The first is whether the OPCAT mechanisms should comment on the legality of the detention (as judged according to international standards), in addition to the conditions of that detention. As preventing individuals being unlawfully or arbitrarily detained in the first place directly contributes to obviating torture or other forms of ill-treatment in those settings, I would argue that the OPCAT mechanisms must engage with both these facets of detention in order to fulfil their mandate.Footnote ¹⁸¹

A second question for the OPCAT mechanisms relevant to the effectiveness of their interventions for the lives of individual asylum-seekers and/or refugees is the extent to which they will document and ensure follow-up in relation to particular individuals or groups of individuals in detention, rather than focusing only on places of detention. Many of the UN monitoring bodies and special rapporteurships have developed the practice of recording the names of individuals brought to their attention during visits, with some success in terms of release or improved conditions. The public listing of names plays a preventive role in reducing the ability of the State party to clandestinely engage in ill-treatment.Footnote ¹⁸² Such an approach also recognises that although prevention is a global objective, it has an individual face. As the language in Article 4(2) of the OPCAT is drafted in terms of preventing ‘persons’ from being subjected to torture, it is open to the OPCAT mechanisms to similarly list individuals in situations of need in any reports. The international focus of the SPT makes it better placed in this regard, although its reports are confidentialFootnote ¹⁸³ so it may well be the NPMs that will ultimately be able to secure release of or improved conditions for specific persons.