GENEVA - As governments move to accelerate removals, expand third-country return arrangements and reshape migration systems, a UN expert* today warned that no new policy or bilateral deal can override the absolute ban on returning a person to torture.
"States have the right to control their borders, remove people who have no lawful right to remain and extradite persons accused of serious crimes. But there is an absolute line: no one can be sent to a place where they face a real risk of torture," said Alice Jill Edwards, the Special Rapporteur on torture.
"Returns may be faster. Procedures may be reformed. States may cooperate with third countries. What they cannot do is design the individual out of the process."
The warning follows renewed European debate around migration and the European Convention on Human Rights, including the Council of Europe's recent Chișinău Declaration and the European Union's new so-called 'Return Regulation'. It also comes amid concern over collective and third-country removals from the United States of America to African and Latin American countries, mass deportations amid xenophobic unrest in South Africa as well as numerous other situations involving alleged refoulement.
In a new position paper, Edwards said current debates over mass removals, bilateral return arrangements and third-country 'return hubs' risk creating the false impression that international law prevents States from managing migration or pursuing criminal accountability. "International law does not require open borders and it does not provide safe haven for criminals. It does require lawful solutions," she said.
The Special Rapporteur stressed that every person facing removal must have access to a meaningful, fair and individualised assessment where a risk of torture or other prohibited ill-treatment is raised.
"Collective expulsions and blanket assumptions are no substitute for individual assessment. Governments cannot decide that an entire group is safe to return, or that everyone sent to a particular country faces the same risk," the expert said. "Country conditions matter, but the deciding factor must be what will happen to the individual concerned."
She warned that transferring people through third countries does not remove the responsibility of the sending State. "You cannot outsource your way around the torture ban. States must consider the whole chain of transfer, including the risk of onward removal, detention, prolonged legal limbo and abuse in transit."
Edwards acknowledged that diplomatic assurances could play a limited role in managing identified risks, but warned they must never become "paper promises used to legitimise an otherwise unlawful return."
"The debate has become unnecessarily polarised. The choice is not between effective transfers and human rights. States may deport, extradite and cooperate internationally. But no political pressure, migration crisis, security concern or criminal allegation makes torture lawful," the expert said.
"The rule is simple: return people lawfully. Prosecute criminals. Protect victims. But do not send anyone to torture."
