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ISTANBUL PROTOCOL I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS

of a particular social group or political opinion. 183 place where a person has reason to fear persecution. 189
It is also a rule of customary international law. 184 The Convention against Torture, by contrast, is
broader and does not require that a person be at risk
113. The protection against refoulement under the of persecution on one of the grounds discussed in the
Convention relating to the Status of Refugees applies Convention relating to the Status of Refugees; rather,
to any person who meets its definition of a refugee, as that person must be at risk of torture or ill-treatment.
well as to persons who have not yet had their status
determined, such as asylum seekers. 185 Article 1 of the 115. States have a duty to ensure that all forms of
Convention defines a refugee as an individual with a forcible transfer of a person, including expulsion,
“well-founded fear of being persecuted for reasons of forcible return and extradition, are determined on
race, religion, nationality, membership of a particular an individual, case-by-case basis and in a manner
social group or political opinion, [who] is outside the that is impartial, independent and in accordance
country of his nationality and is unable or, owing to with procedural safeguards. 190 The risk of torture
such fear, is unwilling to avail himself of the protection should be evaluated, among other things, in light of
of that country”. Torture has been recognized as an the general human rights situation in the person’s
instance of persecution. 186 As the Committee against country of origin. 191 This includes the sending of
Torture has stated, the prohibition of refoulement aliens to a State that will send them to a third State
of persons to where there are substantial grounds where they risk being tortured, so-called indirect or
for believing that they would be in danger of being chain refoulement. The sending State may not rely
subjected to torture, as prescribed in article 3 of on diplomatic assurances by a receiving State that an
the Convention against Torture, is absolute. 187 individual person would not be tortured upon return
as a loophole to undermine the principle of non-
114. However, the applications of the principle of non- refoulement. 192 When determining whether a risk of
refoulement found in the Convention against Torture torture exists, States should take into account human
and the Convention relating to the Status of Refugees rights situations that may constitute an indication of a
differ in scope. Whereas the Convention relating to risk of torture as well as ill-treatment not amounting
the Status of Refugees prohibits returning persons to to torture. Additionally, States should not adopt
the countries from which they fled, the Convention dissuasive measures or policies designed to compel
against Torture’s application explicitly includes persons to return to their country of origin despite
instances of forcible transfer, expulsion, deportation, the risk of torture, such as detaining them in poor
removal or extradition to any country where there conditions for indefinite periods or refusing to process
are substantial grounds for believing that a person their asylum claims etc. 193 Human rights bodies have
faces a foreseeable, real and personal risk of torture affirmed and elaborated on the principle of non-
or ill-treatment. 188 In addition, the United Nations refoulement in their decisions. 194 The Human Rights
High Commissioner for Refugees contemplates that Committee has asserted that States may not extradite,
non-refoulement under the Convention relating to deport, expel or remove individuals from their
the Status of Refugees applies not only to return to territory if there are substantial grounds to believe
a refugee’s country of origin, but also to any other that such individuals would be at a real and personal

183 Convention relating to the Status of Refugees, art. 33 (1).
184 See, for example, Office of the United Nations High Commissioner for Refugees (UNHCR), “The principle of non-refoulement as a norm of customary international law:
response to the questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR
1954/93” (Geneva, 1994); and “Advisory opinion on the extraterritorial application of non-refoulement obligations under the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol” (Geneva, 2007), paras. 14–16.
185 UNHCR, “Advisory opinion”, para. 6.
186 Committee against Torture, general comment No. 4 (2017), para. 29 (c).
187 Ibid., para. 9.
188 Ibid., para. 11.
189 UNHCR, “Advisory opinion”, para. 7.
190 Committee against Torture, general comment No. 4 (2017), para. 13.
191 Human Rights Committee, X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2; and X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18.
192 Committee against Torture, general comment No. 4 (2017), para. 20. See also Committee against Torture, Agiza v. Sweden (CAT/C/34/D/233/2003), para. 13.4.
193 Committee against Torture, general comment No. 4 (2017), paras. 14 and 18.
194 CAT/C/CAN/CO/7, para. 25 (a); CAT/C/NLD/CO/7, para. 11; and Committee against Torture, F.B. v. Netherlands (CAT/C/56/D/613/2014) (finding a violation of
the principle of non-refoulement under article 3 after the State party sought to expel a foreign national who would be forced to undergo female genital mutilation upon her
return).

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