7. In line with customary international law, international human rights treaties, and as a matter of
established international jurisprudence, this Committee has held that the prohibition of cruel, inhuman
or degrading treatment or punishment (hereinafter “other ill-treatment”) is, like the prohibition of
torture itself, absolute and non-derogable under the Convention.1 Thus, an express reference to the fact
that, under the Convention, certain acts of ill-treatment falling short of torture are, like acts of torture
themselves, equally and absolutely prohibited would strengthen paragraph 7 significantly. We
therefore recommend that the text in bold below be inserted at the end of paragraph 7 of the draft.
Recommended textual addition
(at the end of paragraph 7)
7. The Committee also recalls that other acts of ill-treatment, which do not amount to torture as defined
in Article 1, are equally and absolutely prohibited under the Convention by virtue of Article 16,
paragraph 1, read in conjunction with Article 2. [Footnote: General Comment No. 2,
CAT/C/GC/2, paragraphs 3 and 6.]
ii) Paragraph 8
8. Paragraph 8 of the draft could be further strengthened through an explicit reference to the prohibition
of refoulement as a jus cogens or peremptory norm of international law. Thus, we recommend the
insertion of the following text at the end of paragraph 8.
Recommended textual addition
(at the end of paragraph 8, after footnote 3 of the current draft)
8. Article 3 is an iteration of a wider non-refoulement principle, which is a jus cogens, or peremptory,
norm of international law. [Footnote: “See for instance J. Allain, “The jus cogens nature of the nonrefoulement,” 13 (4): Int’l J Refugee Law (2001), pp. 533-558; E. Lauterpacht and D. Bethlehem, 'The
Scope and Content of the Principle of Non-refoulement' in E. Feller, V. Türk, and F. Nicholson (eds.),
‘Refugee Protection in International Law’: UNHCR's Global Consultations on International Protection
(Cambridge: Cambridge University Press, 2003), pp. 78-177; A. Farmer, “Non-Refoulement and Jus
Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection,” 23:1 Georgetown
Immigration Law J (2008), pp. 1-38; C. Costello and M. Foster, “Non-refoulement as custom and jus
cogens? Putting the prohibition to the test,” 46 Netherlands Yearbook of International Law 2015: Jus
Cogens: Quo Vadis?, pp. 273-327.”]
iii) Paragraphs 8, 15 and 16
9. We consider that the draft would be enhanced by building on this Committee’s previous explicit
recognition of the fact that a real risk of acts of ill-treatment falling short of torture, by definition, may
give rise to a real risk of torture itself. For example, in General Comment No. 2, 2 this Committee has
emphasized:
“[i]n practice, the definitional threshold between ill-treatment and torture is often not clear”;3
“[e]xperience demonstrates that the conditions that give rise to ill-treatment frequently facilitate torture
and therefore the measures required to prevent torture must be applied to prevent ill-treatment”;4
1
See e.g., CAT, General Comment No. 2, UN Doc. CAT/C/GC/2, 24 Jan. 2008, paras 3 and 6.
Ibid, paras 3, 6, 19 and 25.
3
Ibid, para. 3.
4
Ibid.
2
5
AI Index: IOR 40/6040/2017