The transfer and repatriation of persons during or after armed conflict is a long-standing concern of the ICRC. During armed conflicts detainees are sometimes transferred from one warring party to another, or back to their country of origin. At the end of conflicts, the repatriation of prisoners of war or the release of security detainees poses challenges as to their safe return.
Over the past few years there have been many headlines about transfers of detainees. It is now public knowledge that within the framework of anti-terrorism measures, persons have been secretly transferred to and from various places of detention and have sometimes been mistreated during or after the transfer.
In current conflicts such as those in Afghanistan, Iraq, the Democratic Republic of the Congo, Sudan and Chad, the presence of multinational forces gives rise to a number of questions. Who has the authority and capacity to detain persons captured in relation to the conflict: the host country or the members of the coalition or peacekeeping forces present on that country's territory? What legal framework applies to the transfer of persons by detainees between coalition members or countries contributing troops to a peacekeeping mission, or to transfers of persons by international troops to the host country? One of the main legal issues in this context is to what extent the principle of non-refoulement applies to transfers of detainees in armed conflicts and, in particular, in the course of multinational operations.
The starting point for any analysis must be the existing international legal framework governing the transfer of persons and, more particularly, the international law principle of non-refoulement and other legal rules. This article therefore starts by recalling international legal norms relevant for transfers. Second, it addresses some of the new challenges posed by detention and transfers in the context of multinational operations. Third, it looks at the contemporary practice of transfer agreements. Lastly, it recalls a few legal principles regarding post-transfer responsibilities of sending states.
The principle of non-refoulement as the legal starting point
The principle of non-refoulement precludes the transfer of persons from one state to another if they face a risk of violations of certain fundamental rights. This principle is found – with some variations as to the persons it protects and the risks it protects from – in refugee law, extradition treaties, international humanitarian law and international human rights law. The following paragraphs will briefly recall its main features in the different bodies of law.Footnote 1
Legal sources of the principle of non-refoulement
Refugee law
The term ‘non-refoulement’ is often associated with refugee law, since it is explicitly mentioned in Article 33 of the 1951 Refugee Convention.Footnote 2 This provision precludes the refoulement – that is, forcible return or expulsion – of a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. Under refugee law, the principle of non-refoulement is applicable to refugees (whether or not they have been recognized formally as such) and to asylum seekers. It should not be forgotten that some people captured in armed conflicts or other situations of violence may fall into these categories and are entitled to protection under refugee law. From the wording of Article 33(1) of the 1951 Refugee Convention (‘in any manner whatsoever’) it is clear that the non-refoulement rule is applicable to any form of forcible removal, including extradition, deportation or expulsion.Footnote 3
In addition, a number of extradition treaties (whether multilateral or bilateral) as well as treaties combating terrorist or other crimes contain grounds to refuse transfers, such as the political offence exemption, non-persecution or non-discrimination clauses, non-extradition for reasons related to the requested state's own notions of justice and fairness, or non-extradition based on international or regional human rights or refugee law.Footnote 4
International human rights law
The principle of non-refoulement is also a principle of international human rights law. Under this body of law, human rights can stand in the way of any transfer to another state, regardless of its formal nature. While some treaties use specific wording such as ‘return’, ‘expulsion’ or ‘extradition’, the formal description of the transfer is irrelevant. The underlying criterion is that of effective control over the individual: if effective control over the individual changes from one state to another, the principle applies.Footnote 5
The principle of non-refoulement is explicitly recognized in a number of human rights instruments, e.g. in Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,Footnote 6 Article 22(8) of the American Convention on Human Rights, Article 13(4) of the Inter-American Convention to Prevent and Punish Torture, Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance, or Article 19(2) of the Charter of Fundamental Rights of the European Union.
More generally, as has been recognized in human rights jurisprudence, the non-refoulement principle is a fundamental component of the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment.Footnote 7
Indeed, the UN Human Rights Committee has stated that states parties to the International Covenant on Civil and Political Rights (ICCPR) may not in any manner ‘remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.Footnote 8 The European Court of Human Rights (ECtHR) has also deemed the non-refoulement prohibition to flow directly from the prohibition of torture and cruel and inhuman treatment in Article 3 of the European Convention on Human Rights (ECHR).Footnote 9 The UN Committee on the Rights of the Child has taken a similar position.Footnote 10
The non-refoulement prohibition also covers the risk of arbitrary deprivation of life, in particular through imposition of the death penalty without fundamental guarantees of fair trial. The Human Rights Committee has held explicitly that a risk of violation of the ICCPR's Article 6 (the right to life) constitutes an obstacle to removal from the territory.Footnote 11 The European Court of Human Rights has not had to decide a case of a transfer entailing a risk of arbitrary deprivation of life or death penalty without fair trial,Footnote 12 but has held that imposition of the death penalty in violation of fair trial principles amounts to inhuman treatment.Footnote 13 According to the Court's jurisprudence, a transfer would therefore be in violation of Article 3 ECHR if the person concerned faced such a risk. Moreover, given the irreperable harm that would arise from an arbitrary deprivation of life, Art 2 ECHR must be considered as bar to transfer if a person faces a risk of arbitrary deprivation of life. Thus the non-refoulement prohibition also covers transfers where a person risks arbitrary deprivation of life, including the death penalty without fair trial.
Moreover, under specific treaties and instruments the principle of non-refoulement extends to other grounds. For instance, Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance prohibits the transfer of any person who faces a risk of enforced disappearance; the Charter of Fundamental Rights of the European Union prohibits the transfer of persons who risk the death penalty.Footnote 14 Under the jurisprudence of certain human rights bodies, the principle of non-refoulement can extend to other risks.Footnote 15 In each situation it will therefore be necessary to examine the specific treaties to which a state is party and assess whether they impose a broader ban on refoulement than the one mentioned here – that is, the prohibition of transfer if the person risks torture, cruel, inhuman or degrading treatment or arbitrary deprivation of life.
International humanitarian law
The principle of non-refoulement is also reflected in Article 45(4) of the Fourth Geneva Convention, which provides that
In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.Footnote 16
No parallel is found in the Third Geneva Convention relating to prisoners of war. Article 118 thereof states that ‘[p]risoners of war shall be released without delay after the cessation of active hostilities’. As soon as work on drafting the 1949 Geneva Conventions began, the ICRC drew the attention of states to cases where prisoners of war were repatriated against their will,Footnote 17 but exceptions to the obligation to repatriate were rejected by the Diplomatic Conference.Footnote 18 Nonetheless, the ICRC has always taken the view that, while the mere wish of prisoners of war could not be a bar to repatriation, they must not be repatriated if it would be ‘contrary to the general principles of international law for the protection of the human being’ that the supervisory bodies must be able to satisfy themselves on a case-by-case basis that the decisions of the prisoners of war have been made freely and serenely.Footnote 19 The ICRC has proceeded according to those principles in many conflicts, for instance in the war between Iran and Iraq,Footnote 20 the 1990–1 Gulf WarFootnote 21 and the war between Ethiopia and Eritrea.Footnote 22
Furthermore, the Geneva Conventions contain a much broader restriction on the transfer of prisoners of war or civilian internees between allied powers in international armed conflict. Article 12(2) of the Third Geneva Convention stipulates that
Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.
Article 45(3) of the Fourth Geneva Convention contains an identical clause for aliens in the territory of a party to an international armed conflict. These clauses have a very broad reach in two respects: first, they prohibit transfers of detainees not only in the case of specific risks, but in any situation where the Conventions would not be observed by the receiving state; second, they refer not only to the receiving state's formal adherence to the Geneva Conventions, but also to its willingness and ability to respect them.
These two provisions do not apply as broadly as those of human rights law, in that they apply only to certain categories of persons. Article 45 of the Fourth Geneva Convention applies to aliens in the territory of a party to an international armed conflict, and Article 12 of the Third Geneva Convention applies to prisoners of war. Also, in their original sense, they apply to transfers between allied powers in an international armed conflict, and there is no parallel provision for non-international armed conflicts.
Nonetheless, the humanitarian principle underlying these provisions, namely that a detaining power should ensure that the ally to whom it transfers detainees treats them according to the standards of the Geneva Conventions, should also be taken into account in non-international armed conflict (especially in so-called internationalized non-international armed conflicts – that is, internal conflicts in which foreign troops from outside the country intervene on the side of the government). For instance, if countries contributing troops to a multinational force in a non-international armed conflict transfer detainees amongst each other, the principle underlying Articles 12(2) of the Third and 45(3) of the Fourth Geneva Convention should be taken into account.
In addition, Article 3 common to the four Geneva Conventions absolutely prohibits torture, cruel treatment or outrages upon personal dignity, in particular humiliating and degrading treatment. This provision should be interpreted in the light of the interpretation given to the parallel provisions in human rights law. If the absolute human rights law prohibition of torture and other forms of ill-treatment precludes the transfer of a person at risk of such treatment, there is no reason why the absolute prohibition in humanitarian law should not be interpreted in the same way.
Another provision that is relevant in the context of transfers and release is Article 5(4) of Additional Protocol II to the Geneva Conventions:
If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding.
While this provision does not contemplate the transfer of persons from one state to another, it nonetheless contains the important humanitarian principle that detaining authorities bear certain responsibilities for the detainees when they release them.
These existing norms of humanitarian law applying to transfers do not preclude application of the non-refoulement principle under human rights law or refugee law. Indeed, in certain situations, as the International Court of Justice has stated, humanitarian law is lex specialis to human rights law.Footnote 23 This could in principle also be the case where humanitarian law, by its silence – that is, by not prohibiting a certain conduct – would seem to preclude the application of such a prohibition under human rights law. In this regard the limited scope of non-refoulement and other legal norms of transfer in humanitarian law is not to be understood as a qualified silence in the sense that the drafters consciously eliminated the possibility of more protective norms. For while humanitarian law deals with certain aspects of transfers, there is nothing in the travaux préparatoires of the Geneva Conventions and Protocols to indicate that the drafters considered all situations in which transfers might take place (such as transfers to another state during a non-international armed conflict) and deliberately rejected application of the non-refoulement principle arising from other sources of law. Nor is there any conflict between the existing set of rules in humanitarian law on the one hand and human rights or refugee law on the other. Rather, the norms of humanitarian law and those of human rights or refugee law are complementary.
A parallel can be drawn with the relationship between non-refoulement in refugee law and in human rights law. It has been the long-standing position of the UN High Commissioner for Refugees that lack of protection under refugee law does not preclude protection under human rights law.Footnote 24 This is sometimes referred to as complementary protection.Footnote 25 Thus, taking humanitarian law into account as an additional pertinent body of law, the three bodies of law provide complementary protection in terms of non-refoulement within their respective sphere of application.
Obligations under the principle of non-refoulement
The scope of the non-refoulement principle has been developed in jurisprudence and practice over time. Only a few aspects of it will be highlighted here.
First, it applies to any type of transfer, regardless of the legal designation of the transfer measure, be it expulsion, extradition, return, repatriation or any other. This is made clear, as mentioned above, by the wording of Article 33(1) of the 1951 Refugee Convention (‘in any manner whatsoever’), as well as the broad language of international humanitarian law and the jurisprudence of human rights bodies. Furthermore, under both humanitarian law and human rights law, the crucial factor is the transfer of effective control from one state to the other, which means that under these bodies of law the non-refoulement principle can stand in the way of transfers between states, even if the person stays within the same territory. While this is not the situation originally envisaged in the relevant provisions, it is the only interpretation compatible with the very object and purpose of the non-refoulement principle. Indeed, obligations could otherwise be circumvented by transferring a person first, for instance, to the transferring state's own embassy or military base in another country and then from the embassy to that country's government. Through a simple formality the whole principle would be undermined.
Second, the principle of non-refoulement not only prohibits transfers to a country where the person will face a threat of persecution, ill-treatment or arbitrary deprivation of life, but also prohibits so-called secondary refoulement – that is, transfer to another state from which there is a risk of further transfer to a third state where he or she will face such a threat.Footnote 26 Obviously, the test must be made by the first country ex ante, and if there is no foreseeable risk at the time it transfers a person to another country, it cannot be held accountable if he or she is subsequently transferred to a third state. A formal requirement that transfers be subject to the non-refoulement principle only if a person is transferred directly to the territory where he or she is at risk would have the unreasonable result that the principle could easily be circumvented. The prohibition of secondary refoulement means that if detainees are transferred between members of a coalition (for instance in order to share detention facilities or procedures for transfers), the transferring force must assure itself that the force to which it transfers a person will not then transfer that person to a third country in violation of the non-refoulement principle. To ensure that there is no unlawful secondary refoulement, some transfer agreements contain clauses barring transfer from the receiving state to a third state.
Third, the principle of non-refoulement may prohibit transfers to countries where not only the receiving state's authorities constitute a potential risk, but also non-state entities or individuals if the receiving state is unable or unwilling to protect the transferee.Footnote 27 This is of particular relevance where the release of people from custody into certain areas might expose them not only to abuse by state authorities there, but also to retaliation or persecution by other parties. In such situations Article 5(4) of Additional Protocol II cited above, which stipulates that a detainee's safety must be ensured when he or she is released, is also relevant.
Fourth, it is important to reiterate that the principle of non-refoulement is absolute, with the sole exception of Article 33(2) of the 1951 Refugee Convention. None of the provisions of human rights law or international humanitarian lawFootnote 28 allows for an exception to it. Since this principle has been derived from the absolute prohibition of torture and cruel, inhuman or degrading treatment and from the right to life itself, it is logical that states cannot, on any account, circumvent these obligations and place people in jeopardy by transferring them to other states where they risk such treatment.
In connection with counter-terrorism policies, states have sometimes questioned the absolute nature of the non-refoulement principle, arguing that it can compel them to keep convicted or suspected terrorists in their territory.Footnote 29 While this is a legitimate concern, it cannot override the consideration on which the principle is founded. Just as no reason, including war or any other emergency situation, can justify a derogation from or limitation to the absolute prohibition of torture or any other form of ill-treatment or arbitrary deprivation of life, there can be no reason that would justify a transfer exposing someone to the risk of such violations. This has been the long-standing jurisprudence of human rights bodies.Footnote 30
Lastly, it is important to stress the procedural obligations of states flowing from the principle of non-refoulement.
The state that is planning to transfer a person to another state must assess whether there is a risk of violation of his or her fundamental rights, regardless of whether the person has expressed a fear or not. If the risk is considered to exist, the person must not be transferred. To ensure that the assessment is performed in a diligent manner and that the person in question will be duly heard, procedural obligations are essential.Footnote 31 While these obligations are not contained in humanitarian law, both human rights law and refugee law stipulate that persons who are to be transferred have the right to challenge the transfer decision before an independent and impartial body – that is, independent of the one that took the decision. This procedural right is based on general principles of human rights law, including the right to a remedy and the requirement of a fair hearing.Footnote 32 The extent to which the potential transferee's concern is well founded – that is, the existence of the risk – must be assessed on an individual basis.Footnote 33
The threshold of risk that must be assessed differs somewhat in the articulation of different human rights bodies, but the varying formulations do not really make a substantive difference in practice. As Bethlehem and Lauterpacht summarize, ‘the fullest formulation of the threshold articulated in international practice’ can be described as ‘circumstances in which substantial grounds can be shown for believing that the individual would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment’.Footnote 34 The United States follows a different standard of proof under the Convention against Torture, according to which torture must be ‘more likely than not’.Footnote 35 This standard, however, finds no support in the wording of Article 3 of the Convention against Torture, which speaks of ‘substantial grounds for believing that he would be in danger of torture’. Substantial grounds means that there has to be a proper evidential basis for concluding that a risk exists. Further, a risk is not to be equated with a likelihood. In the words of the UK Court of Appeal, ‘a “real risk” is more than a mere possibility but something less than a balance of probabilities or more likely than not’.Footnote 36
While neither human rights law nor refugee law require that the review body be a court of law, it follows from general principles of human rights law, especially the right to a remedy and the guarantee of a fair hearing, that a number of minimum procedural safeguards must be respected for the remedy to be effective. Thus the authorities must inform the person concerned in a timely manner of the intended transfer, and the person must have an opportunity to make representations to the appropriate body in order to express any fears that he or she may face persecution or threats to life and limb after the transfer. This also implies that the information given to the person allows him or her to take a well-informed decision. He or she should be assisted through legal counsel.Footnote 37 During the review the transfer must be suspended, since otherwise the principle of non-refoulement would essentially be undermined, given the irreversible nature of the harm.Footnote 38 Depending on which legal regime is applicable, further procedural safeguards may have to be observed. In practice many countries have a system of court review of transfers.
Transfers and the role of the ICRC
On a number of occasions the ICRC has visited detainees who fear that if released or transferred they will be subject to violations of their human rights or exposed to other risks, such as retaliation within their community. In such situations it will make known the fears of the person concerned to the authorities. It is not the ICRC's role to assess whether and to what extent the fear is well founded. The obligation to do so rests with the authorities. Nonetheless, to be able to transmit any misgivings to the transferring authorities, the ICRC often asks to conduct pre-departure interviews with the detainees.
Another aspect which concerns the ICRC is the actual transfer procedure: the ICRC frequently lends its services to facilitate the return of detainees, and especially prisoners of war, to their places of origin. In this respect it is important to clarify that if the ICRC fears that transfers would be contrary to international legal requirements, it would not be in a position to lend its services. Moreover, as a matter of general policy the ICRC only helps those people to return who want to do so – that is, if they have given their informed consent to the transfer – for it would be incompatible with its humanitarian mandate to engage in activities which, even if lawful, could be harmful to the person concerned. So even if the transfer is lawful under international law, the ICRC would not in principle lend its services to facilitate the return of people against their will.
Transfers in the context of multinational operations
While transfers of persons are traditionally associated with transfer from the territory of one state to another, a growing phenomenon is the transfer of people in the context of multinational operations. These can take the form of operations to assist the host government, such as the International Security Assistance Force (ISAF) in Afghanistan and the Multi-National Force–Iraq (MNF-I), or of peacekeeping, peace-enforcement or peacemaking operationsFootnote 39 under the auspices of the United Nations, carried out by states; they can also be carried out by states under the umbrella of regional organizations such as NATO or the European Union, which, in turn, have been mandated by the United Nations.
During such operations people can be transferred between troop- or police-contributing countries, between those countries and the host nation, or between the United Nations, troop- or police-contributing countries, regional organizations and the host nation.
While the complexity of such operations raises a multitude of truly challenging practical questions, it is possible – and important – to break the complex phenomenon down into its constituent parts according to the existing international legal framework, so that political and practical solutions can be found within that framework. For while the distinct nature of each such operation has legal implications for a number of issues, such as the mandate and basis for detention, it is immaterial for observance of the principle of non-refoulement and other legal obstacles for transfers, which apply in all situations as a matter of refugee law, human rights law and/or humanitarian law.Footnote 40
Application of the principle of non-refoulement
The first question to arise is whether the principle of non-refoulement can apply, as it stands, to persons who are detained by forces abroad. This will depend on the applicable body of law.
Under international humanitarian law, Article 12 of the Third Geneva Convention protects prisoners of war against transfers, wherever they are imprisoned, and Article 45 of the Fourth Geneva Convention similarly protects any persons who are aliens in the territory of a party to a conflict. Article 5(4) of Additional Protocol II applies to detainees in a non-international armed conflict, including those held by a party engaged in such a conflict abroad.
As for refugee law, UNHCR's position is that the principle of non-refoulement ‘applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State.’Footnote 41 The decisive criterion for UNHCR is whether persons ‘come within the effective control and authority of that State’.Footnote 42
With regard to human rights law, a discussion of the respective scope of application of the various human rights treaties is beyond the scope of this article.Footnote 43 For present purposes, suffice it to recall that the International Court of Justice has generally held that human rights obligations apply not only on the territory of a country, but also abroad.Footnote 44 International human rights bodies have held that human rights treaties apply whenever state authorities have the overall control over a territoryFootnote 45 or when they have control over an individual.Footnote 46
Thus if a country detains a person abroad and therefore has effective control over him or her, human rights law and the principle of non-refoulement flowing from it apply. It is important to note that such control is not contingent upon a formal requirement such as a formal detention. Effective control is the decisive criterion for the application of human rights because it is the factual criterion which makes it possible to assign responsibility for respect for human rights to state authorities. It is immaterial how long any deprivation of liberty lasts and how it is designated formally (arrest, garde à vue, detention, temporary detention, etc.). The principle of non–refoulement applies to short- and long-term deprivation of liberty.Footnote 47 So, if a transfer occurs immediately after a person is arrested, captured or even voluntarily surrenders to the authorities, the mere fact of being able to compel him or her to move from the control of one state to another against his or her will demonstrates that the authorities have control over that person.Footnote 48 In some situations, forces present in another state do not detain a person for any length of time, but instead hand him or her over to the host nation immediately after arrest or capture. In those cases the principle of non-refoulement applies by virtue of the fact that the transferring forces did assume enough effective control over the person to transfer him or her, however short the period of control may have been.
As pointed out above, the principle also applies in situations where a person is transferred within the territory of one state, but out of the effective control of one state to the effective control of another, for example if a person held by a multinational force is transferred to the authorities of the host country. The material question is whether the person faces a risk, not whether the person crosses a physical frontier.Footnote 49 In military operations abroad, in which a country or organization holds people ‘on behalf of’ or with the agreement of the host nation, that country or organization nonetheless does in fact have effective control over them and has the power to transfer a person or not. The principle of non-refoulement applies.Footnote 50
Attribution to the international organizations and/or contributing nations
In multinational operations people may be captured, detained or transferred by the forces of troop- or police-contributing countries. The first question that arises in the event of such a transfer is who is legally carrying it out – that is, to whom it is attributable – to the organization, the country, or both?
In an operation conducted under the auspices of an international organization (i.e. the United Nations or a regional organization), the transfer is attributable to that organization if it exercises effective control over the measure taken.Footnote 51 Usually this is the case if it exercises operational control and command over the transfer measure.Footnote 52 This means that for every operation the actual situation must be analysed in order to know who ultimately decides on the measure in question.
As regards the United Nations, a simple authorization of the Security Council for states to carry out the operation (e.g. Operation Turquoise in Rwanda, UNOSOM in SomaliaFootnote 53) will not usually suffice to attribute to the United Nations acts carried out by their contingents. For instance, while Security Council Resolution 1546 expressly authorizes the Multinational Forces in Iraq to carry out ‘internment where this is necessary for imperative reasons of security’, detainees are under the exclusive control not of the United Nations, but of the United States and the United Kingdom, which decide on detention, release and transfer.Footnote 54 In the case of the International Security Assistance Force in Afghanistan, for instance, the decision to transfer lies exclusively with the troop-contributing countries and not with NATO or the United Nations. This is borne out by the fact that many of these countries have concluded separate bilateral agreements on transfers with the government of Afghanistan which contain guarantees for the treatment of detainees.Footnote 55
Transfer measures will usually be attributed to the United Nations if a peacekeeping force is conceived as one of its subsidiary organs (e.g. UNMIK in Kosovo, MONUC in the Democratic Republic of the Congo).Footnote 56 In practice, however, even when operations are conceived as such subsidiaries they are nonetheless made up of state contingents, and the home countries will frequently interfere with the UN operational command and give orders to their contingents, especially where they operate detention facilities. In those situations it might be possible that detention and transfer are attributable either exclusively to the troop-contributing country or to both the country and the UN or regional organization if both have effective control.
While the question whether dual attribution is possible is not fully settled in doctrine,Footnote 57 in some situations it might be the legal reading most appropriate to the factual circumstances of the case. As the Special Rapporteur on the Responsibility of International Organizations of the International Law Commission writes, ‘what matters is not exclusiveness of control, which for instance the United Nations never has over national contingents, but the extent of effective control. This would also leave the way open for dual attribution of certain conducts’.Footnote 58
International human rights bodies have similarly focused on the remaining control by the troop-contributing country and have held that the latter continues to be bound by its obligations under human rights law even if it transfers some of its powers to an international organization. For instance, the Human Rights Committee has stated that
a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. … This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.Footnote 59
While the European Court of Human Rights takes a more complex approach, it likewise continues to hold states accountable for their conduct in pursuance of their obligations as members of international organizations. It has indicated in its jurisprudence that a state is not entirely absolved of its obligations under the European Convention on Human Rights if it transfers sovereign powers to an international organization. In the Bosphorus case, the Court held that there will be a presumption that the state acts in conformity with the European Convention on Human Rights if it acts in compliance with legal obligations flowing from membership in an organization whose protection of fundamental rights is equivalent to that afforded by the European Convention.Footnote 60
In the recent decision in the cases of Behrami and Behrami v. France and Saramati v. France, Germany and Norway, the Court attributed the detention of persons by national contingents within the framework of KFOR (Kosovo Force) operations to the United Nations, because it found that ultimate effective control lay with the United Nations.Footnote 61 While the application of the Court's general findings to the facts of the case seems rather stretched in this decision, the important point is that the European Court of Human Rights follows the approach that the conduct in a multinational operation is attributable to the organization or state which has effective control and command. Since the Court expressly distinguished the facts of the Behrami case from those of the Bosphorus case, it is to be assumed that it would uphold its jurisprudence on responsibility of states under the European Convention in cases where the conduct is attributable to the state.
It is possible that the Court will in future exercise restraint in adjudicating on any conduct of states party to the European Convention on Human Rights pursuant to a Chapter VII resolution of the Security Council. While this might be compatible with the primacy that the Charter takes over other treaties, it is problematic in terms of attribution, which is solely regulated by the factual question of effective control.
To sum up, the attribution of conduct in the event of transfers of persons will depend on a factual assessment of which organization and/or state has effective control, which will typically be the one that has operational command and control. In any case, either the country or the organization is responsible, if not both. There is consequently no gap as far as the obligation to respect refugee law, human rights law and humanitarian law is concerned.
Legal responsibilities of international organizations in respect of transfers
While the non-refoulement principle has been codified and developed in the context of transfers carried out by states, there is no question that the United Nations and regional organizations are also bound by it, insofar as it is customary law.Footnote 62 Indeed, it is a long-standing principle that the United Nations and international organizations are bound by rules of international law to the extent that they carry out functions that have a bearing on such rules. As the International Court of Justice held in its advisory opinion in the WHO and Egypt case, ‘International Organizations are subject to international law, and as such, are bound by any obligations incumbent upon them under general rules of international law.’Footnote 63 These obligations are circumscribed by limits of the international organization's mandate – that is, its purposes and functions as specified or implied in its constituent documents and developed in practice.Footnote 64
International organizations like the United Nations or the European Union carry out detention and transfers of detainees; these activities may affect the concerned persons' rights under humanitarian law, human rights law and refugee law. Insofar as the obligations under those bodies of law are part of customary law, such organizations are bound by them.
Beyond the responsibility arising from direct attribution to them, international organizations are also bound by the obligation to ensure respect for international humanitarian law.Footnote 65 Thus, if a multinational operation is carried out under the umbrella of an international organization, that organization is particularly well placed to take steps to prevent and terminate violations of international humanitarian law committed by the state. In such cases it should exert its influence as far as possible within the framework of its relations with the state concerned.
The challenge of differing international obligations and differing capacities of contributing countries
It is sometimes argued that the non-refoulement principle with its various legal bases cannot apply to multinational operations since it relies on too many different bodies of law; that it would be impracticable if different contributing countries have different obligations, especially under regional human rights treaties.Footnote 66
It is true that the diversity of legal obligations may give rise to a number of practical problems and may result in the somewhat incongruous situation that different persons in a same host nation might be protected by different legal obligations. But this consideration cannot put into question the legal rules. The legal position remains that states cannot absolve themselves from their obligations under international law by adhering to international organizations or by contributing to multinational operations. To the extent that states have effective control by virtue of the transfer, the obligations flowing from such control are incumbent upon them. This legal position is not unrealistic in view of the existing practice in multinational operations; on the contrary, it is common practice of contributing countries in multinational operations to abide by rules that are above the common denominator, either out of legal or policy considerations. For instance, European countries or the United Nations traditionally follow a policy not to transfer people to a country where they would face the death penalty, even though other countries might do so. Another example is the decision by the Canadian government to suspend transfers for a period, out of concern for the treatment of individuals upon transfer.Footnote 67 Nonetheless, practical considerations of consistency evidently make it desirable from the point of view of contributing countries to have a uniform standard, and clarity as to that standard.
Security Council resolutions under Chapter VII of the UN Charter
One question that might arise in the framework of multinational operations under Chapter VII of the UN Charter is whether transfers in such operations will also be governed by the principle of non-refoulement and other relevant legal norms. Or can the obligations flowing from the principle of non-refoulement be disregarded in operations conducted with the authorization of the Security Council or as delegated operations of it?
A parallel could be drawn to the European Court of Human Rights holding in the cases of Behrami. The Court argued that
The Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN's key mission in this field including … with the effective conduct of its operations.Footnote 68
In a similar vein it has been argued with regard to the transfer of persons held by ISAF contributing troops to the government of Afghanistan that ‘to interpret human rights obligations of one State as precluding the transfer of detainees taken prisoner in Afghanistan and held there to the Government of Afghanistan would be to frustrate the achievement of the objectives of the resolutions establishing ISAF and defining its mandate’.Footnote 69
Indeed, it is widely accepted by jurisprudence,Footnote 70 statesFootnote 71 and parts of doctrineFootnote 72 that the Security Council is not bound to respect all international law obligations apart from the UN Charter itself. If a multinational operation is conducted under the auspices of a Security Council resolution under Chapter VII of the Charter, the obligations of member states flowing from that resolution can override most obligations under international law, including humanitarian and human rights law, by virtue of the Charter's Articles 25 and 103.Footnote 73 In principle, this includes not only humanitarian and human rights treaty law, as the wording of Article 103 would indicate, but also customary law.Footnote 74
However, two considerations must be taken into account when considering the legal impact of Chapter VII resolutions.
The first is that Chapter VII resolutions cannot displace peremptory norms of international law (jus cogens).Footnote 75 While not all aspects of the non-refoulement principle can be considered jus cogens, an argument can be made that at least insofar as non-refoulement is inherent to the prohibition of torture, it falls under the jus cogens prohibition of torture.Footnote 76 It has also been argued that the non-refoulement prohibition in refugee law is jus cogens.Footnote 77
Second, while it is understood that the Security Council is not entirely bound by international law as a whole, it is also accepted that as promotion of human rights is one of the purposes and principles of the United Nations,Footnote 78 a complete disregard for human rights law and humanitarian law would violate the Charter, for the Security Council is meant to exercise its powers in accordance with the purposes and principles of the United Nations.Footnote 79 Indeed, the Security Council has sometimes found violations of these bodies of law to constitute threats to international peace and security and has called for compliance with them in numerous resolutions.Footnote 80
The extent to which a Security Council resolution must be explicit or unequivocal in order to displace international law is not at all clear. For instance, if the Security Council were unequivocally to order transfers of persons to the host country, leaving no discretion to the troop-contributing countries, this could displace the non-refoulement principle, short of its jus cogens dimension. But Security Council resolutions, being the result of political compromises, are typically formulated in a broad manner. In general, they will contain wording like ‘take all necessary measures’. Even where a resolution goes into greater detail, such as Resolution 1546, which authorizes ‘internment where this is necessary for imperative reasons of security’ for MNF-I in Iraq, there is no indication as to how these measures will be implemented. The presumption, therefore, must be that member states will carry out these measures in conformity with existing international law, unless otherwise indicated.Footnote 81 A contrary presumption, that in doubt international law may be violated, would be implausible.
Thus when a Security Council resolution allows for ‘all necessary measures’, especially if in support of a host country, this could be interpreted to not only include the use of force but also detention or internment, as well as transfers to the host country. However, the resolution will not have defined in any manner what legal framework will govern such use of force, detention or transfer. It must be presumed that such measures will be implemented in conformity with international law, unless otherwise explicitly indicated or unless the formulation is unequivocal and cannot be interpreted in a meaningful manner without requiring a displacement of existing international law.
Going even further, the European Court of Justice has held in the context of measures taken pursuant to Security Council resolutions under Chapter VII that, as far as acts of the European Community were concerned, ‘respect for human rights is a condition for the lawfulness of Community acts and that measures incompatible with respect for human rights are not acceptable in the Community’.Footnote 82 Thus, as a matter of European Community law, even measures taken pursuant to Chapter VII must comply with European human rights law.
Needless to say, even though the Security Council is not bound by all norms of humanitarian and human rights law, basic humanitarian and human rights principles would strongly militate in favour of Security Council-mandated operations to be conducted in accordance with these bodies of law.
ICRC standpoint on interventions in multinational operations
From an ICRC standpoint, it must be stressed that the legal attribution is not the only relevant criterion for its humanitarian dialogue with the authorities. The ICRC may notify several authorities of its concerns with regard to transfers, and not only the authority which is ultimately legally responsible under international law.
In principle, it first submits its bilateral interventions to the authority that has direct control over persons of concern (e.g. the prison authority) and, depending on the case or type of violation, at various levels of authority.Footnote 83 In its confidential bilateral dialogue with parties to conflicts, the level at which the ICRC engages with the authorities will depend on where it can hope to prevent unlawful or harmful behaviour or make it cease. If, in the context of multinational operations, ultimate legal responsibility rests with an international organization, the ICRC could, for instance, hold a dialogue both with the detaining and transferring authorities of the troop-contributing country and with the authorities of the United Nations or regional organization on whose behalf the country carries out the transfer and to which the transfer decision is ultimately attributable.
If the ICRC is unable to improve the situation through bilateral confidential representations, it may, in accordance with the principles and guidelines that determine its action, resort to humanitarian mobilization. It does so on the basis of Article 1 common to the Geneva Conventions, which enshrines an obligation of all states to respect and ensure respect for the Conventions. In this case, it can share its concerns about violations of the law with governments of third countries, with international or regional organizations, or with persons able to support it in seeking to influence the behaviour of parties to a conflict. However, the ICRC only takes such steps when it has every reason to believe that the third parties approached will respect the confidential nature of its representations to them.
Transfer agreements
When people are suspected of or convicted for criminal activity, especially terrorist activities, states have a very high incentive to remove such persons from their territory. As their non-refoulement obligations can hinder such removal, many states resort to agreements with the receiving states in which the latter give assurances as to the proper treatment of the transferred persons.Footnote 84 These agreements – which can take many forms and can be binding or non-binding – are often referred to as diplomatic assurances and are meant to ensure that transferred persons will be treated in accordance with international standards.
The reason for entering into such agreements is that states cannot detain people indefinitely or cannot detain them at all under their national law for security reasons, or consider them to constitute a threat to national security.Footnote 85 Sometimes states find alternative solutions, such as transfer to third countries.Footnote 86 However, it is not an easy task to find countries willing to accept the persons concerned.
Similarly, transfer agreements are becoming an increasingly common feature in multinational operations. In Afghanistan, for instance, a number of members of ISAF have concluded agreements with the Afghan government on the transfer of detainees.Footnote 87 One of the reasons given by these states is that they are invited to support the host government, which retains the primary responsibility for maintaining law and order, and do not want to encroach on its sovereignty.Footnote 88 Also in Afghanistan, for instance, it is NATO policy to transfer or release detainees in principle within 96 hours.Footnote 89 Another much more practical reason is that states or international organizations might not have any capacity to hold people in custody, as in Afghanistan, where some countries contributing to ISAF have no detention facility. These considerations do not, however, provide a legal argument against the validity of the non-refoulement principle under international law. Clearly, if states are present in situations of armed conflict, it is foreseeable that they will have to take people under their effective control, in which case they will be responsible for those persons' well-being. Furthermore, it is possible to transfer people between countries contributing to a multinational force, as long as the transferring state ascertains that the receiving state will not violate its obligations under the non-refoulement principle or its broader obligations under Article 12 of the Third Geneva Convention and Article 45 of the Fourth Geneva Convention in cases of international armed conflict.
It is true, however, that non-refoulement obligations can present a considerable challenge to states unable to transfer people back to their countries of origin, but without any framework for dealing with them. In such situations, states have sometimes found alternative solutions, such as prolongation of temporary detention; release of individuals who do not pose a serious risk, accompanied by surveillance measures and regular appearances before government authorities; transfers to third states; or transfers limited to specific detention facilities where the person does not run a risk or specifically excluding detention facilities where he or she would run a risk.Footnote 90
Transfer agreements and international obligations
Transfer agreements frequently contain some sort of post-transfer mechanisms to monitor compliance with the agreement. For instance, they may contain clauses that the transferring state's diplomatic or consular authorities, or bodies such as national human rights commissions, have a right to visit the transferee.
Transfer agreements do not, per se, relieve the country of its obligations under the non-refoulement principle, in particular the obligation to make an individualized assessment as to whether the potential transferee will face a risk of persecution, ill-treatment or arbitrary deprivation of life, during which the person concerned must be able to make his or her concerns heard.Footnote 91 This is no different from conflicting obligations arising, for instance, from the principle of non-refoulement and extradition treaties. In those situations too, the obligation to transfer arising from the extradition treaty is overridden by the principle of non-refoulement.Footnote 92 As mentioned above, the non-refoulement principle is absolute,Footnote 93 and states cannot absolve themselves from its requirements by entering into other agreements.
Any diplomatic assurance received is only one of many relevant factors that must be taken into account in assessing whether and to what extent the fears of the individual are well founded.Footnote 94 In determining the weight, if any, to be given to an agreement, the review body should be guided by the position adopted by various human rights and other bodies, namely that
— in cases of transfer to states where there is ‘systematic practice of torture’, assurances are unlikely to remove the risk;Footnote 95
— general assurances to the effect that the receiving state will abide by international standards, without giving an assurance relating directly to the individual concerned, are not capable of removing the risk for that person;Footnote 96 and
— diplomatic assurances may remove the risk only if accompanied by an independent and effective post-transfer monitoring mechanism.Footnote 97
Beyond these legal considerations, transfer agreements to obtain assurances against ill-treatment or other violations should, if at all, be used cautiously and with circumspection. While they cannot be qualified in abstract terms as necessarily unreliable, since the political and diplomatic pressure created by single cases may – in certain circumstances, and if followed up with strong post-return mechanisms – protect the individual,Footnote 98 experience in some cases has shown that assurances have been disregarded.Footnote 99
The main reason for this disregard is that it is difficult to establish a reliable and effective monitoring mechanism. In one instance, the European Court of Human Rights, on receipt of an assurance from a state requesting extradition that the Court's staff would be given access to the persons concerned, lifted an order requiring it not to extradite them. When it attempted to visit them, however, access was denied.Footnote 100 In cases before the Committee against Torture, ill-treatment was found to have occurred despite the provision of assurances which included a monitoring mechanism.Footnote 101 The UN High Commissioner for Human Rights and the UN Special Rapporteur on Torture have warned against the use of diplomatic assurances, such assurances being unreliable and unable, in their opinion, to remove the risk of torture or other forms of ill-treatment.Footnote 102 Diplomatic assurances have also been strongly criticized by human rights organizations.Footnote 103
Indeed, when resorting to diplomatic assurances, states should be aware that while it is straightforward to determine whether a state has complied with an undertaking not to impose or carry out the death penalty, it is much more difficult to monitor compliance with an undertaking not to ill-treat persons deprived of their liberty, as torture typically takes place ‘behind closed doors’ and its occurrence is denied. In addition, only a very limited number of people in any particular place of detention are likely to be monitored pursuant to those assurances. It may be difficult for them to communicate any allegations of ill-treatment to the monitoring body, as they might run the risk of reprisals for having informed the monitoring body of the ill-treatment. Also, assurances can only be useful insofar as the authorities have control over security forces, which is not always the case. Lastly, if assurances are violated it is not clear what, if any, remedy is available to the individual concerned.
The ICRC and transfer agreements
The ICRC, on account of its very nature and methods of work, cannot act as the monitoring body under transfer agreements and does not wish to be considered or named as such in them.
First, any involvement by the ICRC in post-transfer monitoring might cause it to be viewed as an ‘implementing agency or agent’ of the transferring state – that is, as having been ‘placed under contract’ by that state to visit detainees in the receiving state, an assignment incompatible with its neutrality and independence and that would jeopardize perception thereof. To act as a monitoring mechanism could ultimately undermine future negotiations on an agreement with the state in question or with third states for detention-related activities by the ICRC. It would moreover risk being used by transferring states for their own purposes, for instance if they claim that any danger of ill-treatment is averted thanks to ICRC visits.
Second, in accordance with its right to visit detained persons in international armed conflictsFootnote 104 and its right to take any humanitarian initiative in non-international armed conflicts and other situations of violence,Footnote 105 the ICRC sometimes makes post-transfer visits to transferees in receiving states. It may already be visiting a place of detention to which a person is transferred and therefore have access to that person. It will, however, negotiate access and the terms and conditions for its visits independently of any agreement between two states. To ensure compliance with the provisions of international law relating to detainees, the ICRC enters into dialogue with the detaining authorities and the detaining country. This dialogue is usually confidential, so that the transferring state will not necessarily learn about the ICRC's findings. While the ICRC may wish to inform that state or other states in cases where violations persist and its confidential dialogue alone has no effect, it will do so in line with its own internal directives,Footnote 106 not on the basis of an agreement between the transferring and the receiving state.
Post-transfer responsibilities
If a transfer does take place, the responsibility for the transferred person rests with the receiving state. The sending state might, however, have a number of post-transfer obligations. These can flow from primary obligations under international law, such as under humanitarian law, or from secondary obligations according to the law of state responsibility if the transfer was in violation of international law. There can also be responsibilities flowing from the duty to ensure respect for international humanitarian law and to abstain from assisting in any violations.
Post-transfer responsibilities in international humanitarian law
International humanitarian law contains specific provisions on responsibilities after transfers between allied powers. Article 12 of the Third Geneva Convention stipulates that
[I]f that Power [namely the receiving power] fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.
Article 45(3) of the Fourth Geneva Convention imposes identical obligations in an international armed conflict with regard to protected persons transferred between allied powers.
In other words, if the sending state learns that detainees are being subjected to grave breaches of the Geneva Conventions or that their basic needs or the requirements concerning conditions of detention are not being met, such as accommodation, food, hygiene, or labour, it must take steps to provide direct assistance.Footnote 107 The commentary on these provisions specifies that if for any reason the situation cannot be remedied, ‘the power which originally transferred the prisoners must request that they be returned to it. In no case may the receiving Power refuse to comply with this request, to which it must respond as rapidly as possible’.Footnote 108 Thus international humanitarian law imposes significant post-transfer responsibilities on the sending state, requiring it to follow up on the treatment of transferred persons and to take action if their treatment is not satisfactory; such action can include requesting the return of the persons concerned. As said above, the humanitarian considerations underlying these provisions – that is, to ensure that in transfers between allied powers the sending power continues to be responsible for the well-being of detainees, should also be taken into account in respect of transfers between allied powers in a non-international armed conflict.
Furthermore, as already pointed out, Article 5(4) of Additional Protocol II requires states releasing detainees in a non-international armed conflict to take all necessary measures to ensure their safety.
Responsibility for an internationally wrongful act
Other bodies of international law do not contain similar obligations for the transferring state. However, if a state transfers a person in violation of the principle of non-refoulement, it commits an internationally wrongful act. In principle, this entails an obligation of reparation,Footnote 109 including an obligation of restitutio in integrum,Footnote 110 which could consist in allowing the person to come back on to the sending state's territory. But human rights bodies have stopped short of requesting the person's return to the sending state, and have merely granted persons unlawfully transferred a right to compensation. More recently, the Committee against Torture and the Human Rights Committee have recommended that states should take measures to inquire about the whereabouts and well-being of the transferred person and to ensure that he or she is not being ill-treated.Footnote 111 If it is not possible to request that person's return, inquiring into his or her well-being and taking measures to alleviate any suffering can help to avoid or put an end to violations.
Obligation to ensure respect for international humanitarian law
On the basis of Article 1 common to the Geneva Conventions, all states have an obligation not only to respect but also to ensure respect for international humanitarian law. This entails a responsibility for all states, including those not engaged in a given armed conflict, to take feasible and appropriate measures to ensure that the rules of humanitarian law are respected by the parties to that conflict.Footnote 112 It is a commitment to promote compliance with that law,Footnote 113 and to act ‘with due diligence to prevent [violations of humanitarian law] from taking place, or to ensure their repression once they have taken place’.Footnote 114
Thus all states that become aware of such violations should take steps to terminate them. They have various methods at their disposal, such as bilateral diplomatic interventions or multilateral mechanisms. These obligations are particularly pertinent in situations where states or international organizations are present in the territory of another state. Their troops must not only avoid giving any encouragement, aid or assistance if they witness violations of humanitarian law by the host nation, but should also take every possible step (within their mandate and in conformity with general international law) to dissuade it from committing them. Or if member states of an international organization are parties to a conflict, acting with its authorization or under its umbrella, the international organization should, where necessary, intervene to ensure respect for humanitarian law by them.
A number of states and international organizations have recently chosen to give host countries greater support in increasing their capacity to receive transferred persons in satisfactory conditions of detention and to try them according to international standards.Footnote 115 Such states are in a particularly favourable position to ensure respect for humanitarian law standards by the host nation and, accordingly, bear a particular responsibility in that regard.
Responsibility for a wrongful act of another state
One of the reasons for transfers can be that the persons concerned will be subject to criminal proceedings in the receiving state. Sometimes the sending state might cooperate with the receiving state in those proceedings, as often occurs for trials relating to terrorism or organized crime.
In such situations, if the proceedings do not comply with international fair trial standards, the sending state might be held internationally responsible for deliberate assistance in breaching the obligation to provide a fair trial. On the basis of international law and practiceFootnote 116 it is in fact accepted – and considered by the International Court of Justice to reflect customary lawFootnote 117 – that a state may not aid or assist another state in the commission of a breach of international law. For instance, if a sending state assists a receiving state in compiling evidence for an unfair trial, it might – depending on the importance of its assistance – be assisting in a violation of international law if aware of the circumstances of the case and if the evidence is material to the trial proceedings.
Summary
The foregoing analysis has sought to outline the legal framework that governs the transfers of individuals. While legal obligations vary from treaty to treaty, the baseline is that people must not be transferred if there are substantial reasons for believing that they would be exposed thereby to a risk of persecution, torture, cruel, inhuman or degrading treatment or arbitrary deprivation of life. An independent and impartial body must review the decision to transfer and assess whether there is a risk.
Transfers arising in multinational operations abroad are only now drawing attention to legal and practical issues. The real challenge will be to find practical solutions to accommodate the object and purpose of those operations and their inherent restrictions as operations carried out at the invitation of the host government and often under the auspices or even under the command and control of the United Nations. Solutions will have to take into account the very limited capacity and political will to detain persons who should normally be detained by the host country, while at the same time respecting the principle of non-refoulement. Solutions can encompass, among others, prolongation of temporary detention, transfers to third states, transfers to specific places where there is no risk, and monitoring or even joint administration of detention to monitor transferred persons.
The ICRC will strive to visit people whenever possible before their transfer and will notify the transferring authorities of any fears that they might have. While it will often also try to visit people after their transfer, it seeks to do so on the basis of its own humanitarian initiative and within the framework of its humanitarian dialogue with the relevant authorities, and carries out such visits in accordance with its own terms and conditions.
