The UN human rights agency sharply criticized practices such as rendition of suspects and rejection of refugees used sometimes by the US, European Union and others.
All governments have a strict obligation to obey all international prohibitions against torture and ill treatment everywhere and at all times, whether within or beyond their borders regardless of their national laws.
The warning comes as the EU struggles with the rising flood of refugees from the Middle East and Africa hammering at its borders to seek safe haven.
Experts say more than two million refugees and migrants from Syria and Africa are on the move towards Europe by land and sea. The prospect has created panic in the Balkan countries, which the new arrivals must cross to reach their preferred destinations of Austria, Germany, Britain and Sweden.
Because of opposition from citizens and politicians, Hungary, Croatia, Slovenia, Greece, Britain and Spain are preventing entry of refugees and migrants escaping poverty.
Hungary and other Balkan countries are building walls and using the army to push back refugees because the hundreds of thousands who have already entered are straining European capacities to care for them.
Initial responses of hospitality and compassion are turning into hostility and insensitivity.
Several governments are trying to prevent refugees from stepping onto European soil because caring for them becomes their responsibility, whereas outside EU borders that burden falls on non-European administrations.
This is ringing alarm bells in UN and other humanitarian agencies trying to uphold international laws and protect the human rights of refugees and migrants.
“I wish to recall that the absolute prohibition of non-refoulement applies at all times, even when States are holding individuals or operating extraterritorially, such as during border control operations on the high seas,” said Juan Mendez, the UN expert on torture.
Hundreds of refugees and emigrants were killed this year when their rickety boats sank before reaching European shores, usually near Greece, Italy and Spain. Many have died trying to cross from France to Britain from Calais and others live in sub-human conditions in nearby forests without shelter or regular food and medical care.
The scenes at the borders of Hungary, Croatia and Slovenia are horrifying as tens of thousands of refugees mostly from Syria — including infants, children, women and the aged — mass in increasingly cold and rainy fall weather without sufficient shelter after being refused entry. They have nowhere else to go.
Without naming the American administration, Mendez also criticized its argument that people, including suspected terrorists, deliberately held outside US borders are extraterritorial and, therefore, not protected by laws prohibiting torture and ill treatment.
In the past, the US has handed suspects to the custody of foreign police and military forces outside American territory arguing that torture conducted abroad by foreign authorities is beyond the scope of American laws and legal protections.
Today’s statement insisted that no government is allowed to perpetrate torture or ill treatment whether on its territory or through accomplices abroad.
“The absolute and non-derogable prohibition against torture and other ill-treatment cannot be territorially limited and States must respect the rights of all persons, anywhere in the world, to be free from torture and other ill-treatment at all times,” Mendez said.
“States must not undermine the absolute legal prohibition of torture and other ill-treatment by evading or limiting responsibility for extraterritorial acts or effects caused by their agents.”
In the terminology of international agreements, extraterritorial practices include cross-border military operations or use of force and the occupation of foreign territories.
This language encompasses some actions in the occupied territories by Israeli military and police to defend Israel’s citizens against Palestinian terrorists. Various UN human rights bodies have repeatedly labelled many such actions as violations of Palestinian human rights and some are described as possible war crimes.
Extraterritorial practices also include “anti-migration operations; peacekeeping; the detention of persons abroad; extraditions, rendition to justice, and extraordinary rendition; and the exercise of de facto control or influence over non-State actors operating in foreign territories”.
As often with UN jargon, the meanings of these terms are not clear and everything is up for varied interpretations by governments regardless of international agreements they have signed to protect human rights.
Today’s clarification noted, “States must implement safeguards to protect persons from torture and other ill-treatment when they are detained extraterritorially within their jurisdiction.”
For instance, this would make it the responsibility of the allied government to prevent torture of suspects rendered to it by the CIA and others for interrogation outside American territory.
Above all, today’s statement means that evidence gathered from the interrogation cannot be used in court if torture or ill treatment took place.
“The exclusionary rule, which mandates that evidence obtained under torture cannot be invoked in any proceedings, is applicable no matter where the mistreatment took place,” Mendez said.