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Recommendations to Ensure Compliance with the Prohibition on Transfers to
Risk of Torture
To the Government of Canada:
- Take all possible steps to prevent transfer by the U.S. or any other government of a Canadian national or resident to a risk of torture or
ill-treatment. Given the responsibility of all governments to do
everything in their power to prevent acts of torture, Canada must ensure
that it has policies in place that enable it: (1) to learn about possible
renditions to risk of torture or ill-treatment involving Canadian citizens
or residents; and (2) to take high-level action through diplomatic and
legal channels to prevent such transfer.
- Ensure that procedures are in place for high-level
governmental review and response whenever Canadian law enforcement,
immigration, or security officials learn that a Canadian national or
resident in U.S. custody has raised a CAT-related concern. Specifically,
if such a person raises any concern of torture or ill-treatment if
transferred to another country, or if Canadian officials realize there is
a risk of torture or ill-treatment, or if the U.S. government is seeking
assurances from another government, then the Canadian officials must seek
high-level review of the case through a carefully delineated procedure
that involves not only law enforcement, immigration, or security
officials, but also those officials responsible for asylum and refugee
matters and compliance with Canadian international legal obligations. Such
a process could facilitate action to protect the rights of Canadians in U.S. custody.
- Ensure full compliance with the absolute prohibition on refoulement
in its own treatment of persons in Canadian custody or facing deportation
from Canada. Specifically, Canada should prohibit reliance upon diplomatic
assurances as a basis to transfer any person, including non-citizen
terrorist suspects, to other countries when the case involves a risk of
torture or ill-treatment. Canada should also repeal Sections 76-87 of the
Immigration and Refugee Protection Act, providing for the use of security
certificates to detain and deport, based on secret evidence presented in ex
parte hearings and without procedural guarantees, persons determined
to be an imminent danger to Canadas security, including potentially
effecting transfers to countries where a person would be at risk of
torture or ill-treatment.
To the Government of the United States:
- End reliance on diplomatic assurances as a basis for
concluding that a person can be transferred to another country without
risk of torture or other ill-treatment.
- Revise DHS regulations implementing U.S. obligations under both the CAT and the 1998 U.S. law to ensure that the regulations do not
permit the use of assurances in order to transfer a person to a country
where he or she is at risk of torture or ill-treatment. Specifically, the U.S. government should repeal 8 C.F.R. §208.18(c), which provides for reliance upon assurances
against torture to remove from U.S. territory persons raising claims under
the CAT in immigration proceedings.
- Direct the Department of Defense and the Central
Intelligence Agency to promulgate regulations to implement Article 3 of
the CAT via public notice and comment procedures. Ensure that these
regulations do not permit reliance on diplomatic assurances as a basis for
ending an inquiry into a CAT claim or concluding that an individual may be
transferred to a place where he or she is at risk of torture or
ill-treatment.
- Enact S. 654 (Leahy bill) and H.R. 952 (Markey bill),
currently pending in the U.S. Senate and House of Representatives
respectively, as a means toward ending rendition to risk of torture and
ensuring all relevant agencies of the U.S. government promulgate
regulations that comply fully with U.S. legal obligations.
To both governments:
- Support a comprehensive international investigation of the
handling of Maher Arars case by all four governments involved in this
case the United States, Canada, Syria, and Jordan. Such investigation
should be done under the auspices of an appropriate international body,
such as the Office of the High Commissioner for Human Rights.
- Cooperate fully and transparently in their own and in each
others inquiries into the Arar matter. In particular, the U.S. government should reverse its decision not to cooperate with the Canadian Commission
of Inquiry in the Arar matter. Because officials from both governments
interacted regarding this case, including sharing information, the
Canadian Commission will not be able to construct a complete picture of
the consequences of actions taken by Canadian officials without
cooperation from the United States.
- Comply fully with their respective reporting requirements
before the U.N. Committee Against Torture, the Human Rights Committee, and
other relevant international and regional monitoring bodies. Include in
these reports detailed information about all cases in which requests for
diplomatic assurances against the risk of torture or ill-treatment have
been sought or obtained with respect to a person subject to transfer to
another country.
- Acknowledge that the nonrefoulement obligation
includes a prohibition on transfers both to risk of torture and to risk of
cruel, inhuman, or degrading treatment or punishment.
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