Non-refoulement Obligations Under International Law in the Context of the Death Penalty

Chapter 4
Non-refoulement Obligations Under International Law in the Context of the Death Penalty

Yuval Ginbar, Jan Erik Wetzel and Livio Zilli1

The obligation not to forcibly remove, or “refouler”, people in circumstances where they would face a real risk of the death penalty is a well-established rule in international human rights law. This obligation has been developed over the past two decades, and is now expressed in international treaties, standards and jurisprudence. What started with the Soering decision of the European Court of Human Rights (ECtHR) in 1989, and was stated most clearly in Judge v. Canada by the Human Rights Committee in 2003, was recently confirmed again in the Tsebe decision of 27 July 2012 of the South African Constitutional Court.2 For present purposes, the non-refoulement principle is invoked most frequently when a retentionist state requests the extradition on capital charges of a person from an abolitionist state. In those circumstances, most governments and courts now routinely expect enforceable assurances from the requesting state that the death penalty would either not be imposed or carried out (so-called diplomatic assurances). This is relevant against the background of two trends. First, more and more states are becoming abolitionist. Second, concerns over international terrorism, drug-trafficking and transnational crime in general are growing, increasing the need for international legal co-operation (Burleson, 2005; Beltrán de Felipe and Nieto Martín, 2012). Greater recognition of the applicability of the non-refoulement principle in the context of the death penalty has resulted in a diminished ability on the part of retentionist states to secure extraditions and to implement the death penalty. Consequently, these states increasingly find themselves having to forgo the death penalty in exchange for successfully obtaining custody of suspects. This phenomenon at its most extreme may amount to ‘indirect abolition’ (Schabas, 2003) through a ‘strategy of non-cooperation’ (Hood and Hoyle, 2008, 28).

This chapter charters the legal bases, applicability and scope of the non-refoulement obligation in cases of a real risk of the death penalty. First, it describes how this rule is found in related but distinct normative regimes, chiefly refugee and human rights law; second, it emphasizes that the non-refoulement principle enjoins the transfer of persons when there is a real risk of the death penalty not only in the context of extradition, but also in any other scenario of enforced removal. Third, it outlines the distinct and specific non-refoulement obligations of abolitionist and retentionist states. Fourth, it considers the lawful use of assurances to remove the risk of the death penalty, especially in contrast with their use in cases where there is a real risk of torture or other ill-treatment. Finally, the chapter assesses the rationale for compliance with the non-refoulement obligation in the context of the death penalty, most common counter-arguments, and implications for the future administration of justice consistent with international human rights.

Brief Remarks on Non-refoulement in Human Rights Law

The principle of non-refoulement is well established in international human rights law. It is explicitly codified in some human rights treaties and standards.3 Further, domestic and international courts and human rights bodies and experts have consistently found that certain fundamental human rights entail, implicitly, an obligation not to transfer (“refouler”) people when there are substantial grounds for believing that they would face a real risk of violations of those rights in the event of their deportation, expulsion, extradition, handover, return, surrender, transfer or other removal from the state’s jurisdiction.4 In those circumstances, human rights law enjoins the removal of the individuals concerned from the relevant state’s jurisdiction (Droege, 2008).5 The prohibition of refoulement dictates that, irrespective of all other considerations, states are not absolved of responsibility ‘for all and any foreseeable consequences’ suffered by an individual following removal from their jurisdiction.6 States have also been found liable in cases of indirect refoulement – also known as chain refoulement – as well as in cases involving constructive refoulement.7

The legal basis of – and the rationale for – the non-refoulement obligation in human rights law stem from two core states’ obligations: the duty to recognize, secure, protect and promote the human rights of all individuals within their jurisdiction, and the duty to ensure that human rights safeguards be interpreted and applied so as to make them practical and effective. Therefore, the purpose of the non-refoulement principle is preventative: it seeks to protect individuals from a real risk of serious harm. In addition, international human rights law has made a substantial contribution to establishing this principle as a fundamental component of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment (United Nations High Commissioner for Refugees [UNHCR], 2001, para. 16). The purpose of the non-refoulement obligation is to forestall the perpetration of practices that are absolutely prohibited. Thus, unlike its equivalent in international refugee law, the prohibition of refoulement in human rights law is absolute.8 Even those who may reasonably be regarded as ‘a danger to the security of the country or … who constitute[s] a danger to the community of that country’,9 and who consequently may not benefit from the protective scope of the non-refoulement principle in international refugee law,10 are entitled to enjoy the protection of its counterpart in human rights law given its absolute nature.

Further, as an obligation directed at securing rights in ways that are both practical and effective, the non-refoulement principle is thus a fundamental component implicit in other human rights beyond provisions prohibiting torture or other ill-treatment.11 For example, the Human Rights Committee, the body monitoring the implementation of the International Covenant on Civil and Political Rights 1966 (ICCPR), has recognized that the principle of non-refoulement is also a fundamental component of the right to liberty and security of person under Article 9 of the ICCPR, as has the UN Working Group on Arbitrary Detention.12 In Othman v. UK, the ECtHR confirmed that a state is in violation of the non-refoulement obligation implicit in Article 5 of the ECHR, enshrining the right to liberty and security of person, if it ‘removes an applicant to a State where she or he was at real risk of a flagrant breach of that article’; it also found that Othman’s deportation to Jordan would be in violation of the non-refoulement obligation entailed in Article 6 of the ECHR, enshrining the right to a fair trial, as a result of the real risk of a flagrant denial of justice at his trial in Jordan.13 Human rights law entails non-refoulement obligations enjoining states from acting, or omitting to act, in ways that would result in the removal of any individual from their jurisdiction when states know or ought to know that their removal would expose them to a real risk of serious human rights violations or abuses. Those non-refoulement obligations also apply in respect of states’ failure to take steps to prevent any prohibited transfers, and states are responsible under human rights law for any reasonably foreseeable post-transfer violations (Droege, 2008).

The Absolute Non-refoulement Obligation of Abolitionist States

In the context of the death penalty, non-refoulement obligations under human rights law differ between abolitionist and retentionist states. Neither group may remove persons to a requesting state where there is the real risk of a violation of the minimum safeguards on the use of the death penalty under international standards, including but not limited to articles 6(2), 7 and 14 of the ICCPR (Droege, 2008; Harrington, 2006; Nowak, 2005, MN 51–2).14 However, going beyond this common obligation, abolitionist15 states are absolutely prohibited from extraditing or otherwise forcibly removing persons to the jurisdiction of a prosecuting state if there is a real risk of imposition or implementation of the death penalty as such (Burleson, 2005). Following the prohibition of chain refoulement (see above), this also means that removal to the jurisdiction of a first country is prohibited if a real risk of subsequent onward transfer to a second, prosecuting, state exists. For abolitionist states, the obligation of non-refoulement thus applies even where the minimum standards would be complied with by the requesting state. This is clear from, inter alia, the case law of the Human Rights Committee with regard to Article 6 of the ICCPR (the right to life), as well as judgments from national and regional courts, including, but not limited to, decisions of the European Court of Human Rights.

The Human Rights Committee observed in 2003 in Roger Judge v. Canada16 that abolitionist states cannot avail themselves of the death penalty exceptions in Article 6(2) of the ICCPR, as this only applied to retentionist states. It thereby reversed its earlier case law of Kindler v. Canada17 and Ng v. Canada.18 While in 1993 the Committee had held that the requested state was not violating Article 6(1) as long as the requesting state observed the limitations of Article 6(2), it now stated:

For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out. (Judge, para. 10.4)

The Committee found that a differentiated treatment between abolitionist and retentionist states was required by, inter alia, the ‘broadening international consensus in favour of abolition of the death penalty’, newly supporting case law of the Supreme Court of Canada in United States v. Burns (2001, see below), and that extraditing in these circumstances would go against the object and purpose of Article 6 of the ICCPR (Judge, paras 10.3–6).19 In effect, this means that the obligation to protect the right to life under Article 6(1) is, in this respect, without any limitation for abolitionist states, including where they have received a request for extradition (Nowak, 2005, MN 55). Furthermore, the Committee observed that this prohibition applied irrespective of whether the state had ratified the Second Optional Protocol to the ICCPR of 1989, aiming at the abolition of the death penalty (ICCPR-OP2). Canada did not accede to ICCPR-OP2 until 2005. But by deporting Roger Judge in 1993 to the USA, where he was under sentence of death, Canada had established ‘the crucial link in the causal chain that would make possible the execution of the author’, and this alone was sufficient to find a violation by Canada of Article 6(1) of the ICCPR (Judge, para. 10.6). This obligation can apply a fortiori if the requested state has ratified a treaty abolishing the death penalty (UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 2012, para. 75) like ICCPR-OP2, or regional treaties such as the Protocol to the American Convention on Human Rights to abolish the death penalty of 1990 and Protocols 6 and 13 to the ECHR.20 For example, state parties to ICCPR-OP2 are under the duties not to execute and to ‘take all necessary measures to abolish the death penalty within its jurisdiction’ (Article 1(2)). Facilitating the death penalty elsewhere is not a ‘measure to abolish’, as the application of the death penalty is furthered rather than reduced. In these circumstances, removal to a retentionist state without assurances would therefore violate the non-refoulement obligation implicit in ICCPR-OP2 (Nowak, 2005, MN 55).

In the authors’ view, the prohibition for abolitionist states of refoulement to a real risk of the death penalty has evolved from a preferable consideration (Dugard and Van den Wyngaert, 1998; Nanda, 1999, speaks of ‘comity’) to a binding rule under customary international law. On the global level, the general principle is recognized by UN Commission on Human Rights resolution 2005/59,21 which requests:

States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that the death penalty will not be carried out, and calls upon States to provide such effective assurances if requested to do so, and to respect them. (OP 10)

The more recent 2012 ILC Draft Articles on Expulsion of Aliens (A/CN.4/L.797) in Article 23(2) expressly prohibit this type of forced removal unless assurances against the death penalty are obtained. Some international treaties include language that ‘extradition may be refused’.22 Similarly, Article 21(3) of the Council of Europe Convention on the Prevention of Terrorism (2005) contains a provision allowing the refusal of extradition ‘if the person who is the subject of the extradition request risks being exposed to the death penalty’. Article 9 of the Inter-American Convention on Extradition (1981) declares that states ‘shall not’ remove persons in these circumstances. Article 17 of the ECOWAS Convention on Extradition (1994) states that ‘extradition may not be granted’ if the offence is punishable by death in the requesting state but not provided for by the law of the requested state. The Charter of Fundamental Rights of the European Union (2000) (revised version, OJ C 83/389 of 30 March 2010) – legally binding since the Treaty of Lisbon entered into force in 2009 – states expressly in Article 19(2): ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’ The latter means that, for example, Article 13 of the Agreement on Extradition between the European Union and the United States (OJ L 181/27 of 19 July 2003, in force since 2010), which provides that if certain conditions – that is, assurances not to apply the death penalty – are not met by the requesting state, the wording ‘the request for extradition may be denied’ needs to be read as ‘must be denied’.

The prohibition has found its most extensive acceptance and development in the case law of regional and national courts. In particular, the jurisprudence of the European Court of Human Rights has contributed to the development of this rule. In 1989, in the well-known case Soering v. The United Kingdom,23 the ECtHR found a prohibition on extraditing the applicant not in Article 2 of the ECHR (the right to life), but in Article 3 of the ECHR (the prohibition of torture and other ill-treatment). The court held that extradition to the risk of the so-called ‘death row phenomenon’ would be against the ‘spirit and intendment’ of Article 3, and that an ‘obligation not to extradite’ would have to be seen as ‘inherent’ to that provision (para. 88). In Bader and Kanbor v. Sweden,24 the ECtHR held that the deportation of rejected asylum seekers to Syria without any assurances that the death penalty would not be sought or imposed would directly give rise to a violation of Article 2 of the ECHR; one of the applicants had been sentenced to death in absentia, and Syria’s practice put him at a real risk of being executed. Finally, Al-Sadoon and Mufdhi v. UK25 did not concern a request for extradition, but a transfer of custody from British to Iraqi authorities within Iraq in 2004. The ECtHR considered that in the light of the abolition of the death penalty in all member states of the Council of Europe, and the near universal ratification of Protocols 6 and 13 to the ECHR, the death penalty as such was now prohibited by Article 2 of the ECHR. It therefore found that the UK had violated its international obligations by transferring the prisoners without obtaining binding assurances, as they faced a real risk of being sentenced to death and executed (Al-Sadoon and Mufdhi, para. 143).

Soering and subsequent case law of the European Court was soon followed by domestic courts in, for example, France, Italy, the Netherlands and Switzerland in either allowing extradition or any other transfer only after assurances that the death penalty would not be sought, or not allowing transfer at all, even if guarantees were provided (Nanda, 1999; Schabas, 2003). However, this jurisprudence is not limited to Europe. In 2001, the highest courts in Canada and South Africa adopted the approach to prohibit extradition without assurances. Specifically, the Supreme Court of Canada unanimously held in US v. Burns26 that ‘in the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required’ (para. 65), and that ‘other abolitionist countries do not, in general, extradite without assurances (para. 130; see also Mohamed, see below, para. 45). The court based its finding on, inter alia, Canada’s fully abolitionist position, the international trend against the death penalty, and concerns over wrongful convictions in the USA (para. 131). It also referred to the decisions of the ECtHR in Soering and of the Constitutional Court of South Africa in Makwanyane,27 in which that court declared the death penalty as such unconstitutional.

In the same year as Burns