Challenging the designation of the US as a safe third country for refugees
November 2006

Executive Summary

Since 29 December 2004, when the US-Canada Safe Third Country Agreement came into force, the United States of America has been designated as a safe third country for refugee claimants arriving at Canada’s border with the US.  This means that, with some exceptions, their claims are ineligible to be heard in Canada: they are expected to find protection instead, if they need it, in the United States. 

The Canadian Council for Refugees, which has consistently and strenuously opposed the Safe Third Country Agreement, maintains that the US is not a safe country for all refugees.  Furthermore, the situation in the US has grown significantly worse since its designation as a safe third country.
A safe third country is defined in Canada’s Immigration and Refugee Protection Act as a country that complies with its non-refoulement obligations, i.e. the obligations not to return refugees to persecution or anyone to torture (Article 33 of the Refugee Convention and Article 3 of the Convention against Torture).

Canadian law requires that the federal Cabinet ensure the continuing review of the status of the US as a safe third country, taking into consideration a series of factors.  It does not appear that the Cabinet has conducted any such review to date.

The Canadian Council for Refugees urges the Cabinet to withdraw the designation of the US as a safe third country, in the light of the new developments. The US does not comply with its obligation under Article 33 of the Refugee Convention to provide protection from refoulement for all refugees.  There is also extensive evidence that the US has, through its practices of “rendition”, systematically violated its obligation under the Convention against Torture not to remove anyone to torture.  On this basis alone, the US cannot properly continue to be designated a safe third country.

The Act directs the Cabinet to take into consideration the US’s policies and practices with respect to claims under the Refugee Convention and obligations under the Convention against Torture, and its human rights record.

The new evidence in relation to these factors, added to pre-existing shortcomings, compels the conclusion that the US, if it ever was, can no longer be considered a safe third country.

In summary, the principal new elements, organized according to the relevant statutory factors for consideration, are as follows:

I. US policies and practices with respect to claims under the Refugee Convention

Real ID Act
In May 2005, President Bush signed into law the Real ID Act, which significantly exacerbates systemic problems with respect to access to refugee protection in the US.  The Act dramatically expands the category of persons ineligible for refugee status on the basis of their supposed “engagement in terrorist activity”.  Refugee status is denied to persons who have provided “material support” to a “terrorist organization”.  The broad terms used in this law exclude from protection large numbers of refugees who have never engaged in terrorist activity or whose only connection with a “terrorist organization” was involuntary and coerced.  For example, a Colombian farmer, from whom armed rebels had extorted money, was denied asylum in the US on the basis that he had provided “material support” to a terrorist group.  He was deported back to Colombia after spending a year in detention in the US.

The exclusion of persons from refugee protection based on this notion of “material support” is incompatible with the Refugee Convention and leads to refugees facing refoulement in violation of the Convention.

The Real ID Act also makes it significantly more difficult for asylum seekers to satisfy decision-makers that they deserve asylum.  The Act places new demands on asylum seekers with respect to the motives of the persecution feared and corroboratory evidence.  In addition, decision-makers are now explicitly granted discretion to base the determination of an asylum seeker’s credibility on factors such demeanour and inconsistencies, even if the inconsistencies are irrelevant to the heart of the claim.  This means, for example, that a claimant can be found not credible because she did not give a full account of her experiences at her first meeting with a US immigration officer (something that often happens, particularly with women who have experienced sexual violence).  By introducing these new rules, the Real ID Act makes it more likely that asylum seekers who meet the Convention definition of a refugee will be wrongly denied status and the Convention’s protections, including the protection against refoulement.

Report of the US Commission on International Religious Freedom
In February 2005, the US government’s Commission on International Religious Freedom published a report, Asylum seekers in expedited removal, that contained stinging criticism of the US refugee determination system.  The Commission found that asylum seekers are consistently detained in jails or jail-like facilities judged inappropriate for non-criminal asylum seekers.  Criteria relating to the release of detained asylum seekers are not consistently implemented.  There are wide statistical variations of acceptance rates of individual immigration judges, even among asylum seekers of the same nationality or among judges with the same caseload sitting in the same court.  There are significant differences in acceptance rates depending on whether a lawyer was present.  There has been a substantial decrease in the granting of appeals by the Board of Immigration Appeals since the Board decided to permit “affirmances without opinion” (i.e. no reasons provided).
The report’s findings reveal that the refugee determination process in the US depends on many factors other than the personal situation of the claimant. As a result, people who in fact qualify as refugees under the Refugee Convention risk being wrongly denied status and the Convention’s protections, notably the protection against refoulement.

Immigration Project of the Transactional Records Access Clearinghouse
In July 2006, the Transactional Records Access Clearinghouse published results of a study of 297,240 refugee cases between 1994 and 2005.  The study found significant disparities in the treatment of refugee claims in the US, depending on the decision-maker.  These inconsistencies must mean that some refugees are wrongly denied refugee protection and thus face refoulement.

II. US policies and practices with respect to obligations under the Convention against Torture

a) Removal to torture (art. 3 of the Convention against Torture)
The Immigration and Refugee Protection Act defines a safe third country as a country that complies with Article 3 of the Convention against Torture, which prohibits removal to torture.

Arar Commission
In September 2006, Justice O’Connor presented the Canadian Commission of Inquiry’s Report of the Events relating to Maher Arar.  He concluded that the United States removed Mr. Arar to torture in Syria.  A Canadian judicial inquiry has thus made a finding relating to non-compliance by the US with its Article 3 obligation not to remove anyone to torture.

Diplomatic Assurances
In April 2005, Human Rights Watch published a report on the use of “diplomatic assurances” in cases of return to risk of torture (i.e. promises from a State that it will not torture a person). Human Rights Watch reported that “diplomatic assurances” are increasingly being used by the US.  They were apparently used to justify Mr. Arar’s deportation to Syria and clearly failed to prevent his torture.  US officials have acknowledged both their use and their limited value in actually protecting a person from torture, putting the US in violation of its Article 3 obligation.

Return to torture from Guantánamo
In February 2006, five United Nations experts published a report on the Situation of detainees at Guantánamo Bay.  They reported on allegations of rendition and forcible return of Guantánamo detainees to countries where they are at serious risk of torture.  On the basis of the information available, the Special Rapporteur on torture concluded that the US practice of “extraordinary rendition” constitutes a violation of article 3 of the Convention against Torture.  In April 2005, the Council of Europe’s Parliamentary Assembly similarly reached the conclusion that the US’s practices of “rendition” have allowed detainees to be subjected to torture and to cruel, inhuman or degrading treatment, in violation of the prohibition on refoulement.

Renditions to secret detention facilities
In September 2006, President Bush confirmed the existence of CIA-run secret detention facilities. The secret nature of these facilities, combined with the testimony of detainees, make it likely that torture and inhuman and degrading treatment are part of both the conditions of detention and the interrogation practices.  In his June 2006 report of an investigation conducted for the Council of Europe, Dick Marty found that the US has been placing and keeping captured terrorist suspects outside the reach of any justice system.  In several of the cases examined, the detainees had been tortured.  The Council of Europe Parliamentary Assembly adopted a resolution opposing secret detention and unlawful inter-state transfers of detainees, using strong language to condemn the United States’ departure from international law and human rights standards.

b) Other violations of obligations under the Convention against Torture
In reviewing the status of a safe third country, the Immigration and Refugee Protection Act requires that the Cabinet take into consideration the policies and practices of the country with respect to all obligations under the Convention against Torture.

UN report on Guantánamo
The above-mentioned February 2006 UN report, Situation of detainees at Guantánamo Bay, also presented a series of other findings about violations of the Convention against Torture at Guantánamo Bay.  The report concluded that interrogation techniques authorized by the US government, particularly if used simultaneously, amount to degrading treatment in violation of article 16 of the Convention.  If the victim experienced severe pain or suffering, these acts amounted to torture.  The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and in the force-feeding of detainees on hunger strike was assessed by the UN experts as amounting to torture.  The impunity of the perpetrators was found to amount to a violation of articles 12 and 13 of the Convention.

Concluding observations of the UN Committee against Torture
In May 2006, the United Nations Committee against Torture published observations following its examination of the United States’ compliance with the Convention against Torture.  The Committee found that the US needs to make many significant changes to its current policies and practices in order to conform to its obligations under the Convention.  Among the areas of concern identified were: US failure to recognize that the Convention applies at all times and in any territory under its jurisdiction; its failure to register all detainees; the establishment of secret detention facilities, which are not accessible to the International Committee of the Red Cross; the involvement of the US in enforced disappearances; the absence of clear legal provisions ensuring that there is no derogation from the prohibition against torture; indefinite detention at Guantánamo Bay; the authorization of interrogation techniques that have resulted in the death of some detainees during interrogation; reliable reports of acts of torture or cruel, inhuman and degrading treatment or punishment committed by US personnel in Afghanistan and Iraq; lenient sentences for the perpetrators of such acts; and reliable reports of sexual assault of detainees including those in immigration detention.

Concluding observations of the UN Human Rights Committee
In July 2006, the UN Human Rights Committee, in a report on the US’s compliance with the International Covenant on Civil and Political Rights, raised concerns relevant to compliance with the Convention against Torture, specifically with respect to the existence of secret detention and the need for prompt and independent investigations into all allegations of suspicious deaths and torture or cruel, inhuman or degrading treatment or punishment by agents of the US government in Guantánamo, Afghanistan, Iraq and other overseas locations.
The Detainee Treatment Act
In December 2005 the Detainee Treatment Act was signed into law, further compromising US compliance with the Convention against Torture, by removing from federal courts any competence to review the situation of Guantánamo detainees.  The Act also provides for tribunals to take into consideration evidence obtained through coercion (thus potentially under torture).

President Bush attached a signing statement to the Act, saying that he could, as Commander in Chief, waive the prohibition on the use of torture or cruel, inhuman or degrading treatment.

Systematic use of torture
In May 2005 Physicians for Human Rights published a report providing extensive evidence that use by the US of psychological torture was systematic and central to the interrogation process of detainees in Iraq, Afghanistan and Guantánamo Bay. The report documents the use of prolonged isolation, sleep deprivation, severe sexual and cultural humiliation and use of threats and dogs to induce fear of death or injury.  The report notes that “it is difficult to ascertain what forms of psychological torture are currently in use” because of the extreme secrecy regarding detention operations.  The American Civil Liberties Union and Amnesty International have both also reported on the evidence of systemic patterns of torture of detainees in US custody.

Detainee Abuse and Accountability Project
The preliminary conclusions of the Detainee Abuse and Accountability Project, a joint study by a number of human rights organizations, were published in April 2006.  They concluded that abuse of detainees in US custody has been widespread, involving cases in Afghanistan, Iraq and at Guantánamo Bay.  Over 400 persons have been implicated in the cases of abuse investigated by US authorities, but there have been few convictions and there does not seem to have been adequate investigation by US authorities of numerous allegations of abuse.

III. The United States’ human rights record

In addition to the human rights violations pointed to above, there has been a deterioration in the overall human rights record of the US since the implementation of the Safe Third Country Agreement.

Deliberate attacks on civilians in Iraq
Since the coming into force of the Safe Third Country Agreement, there have been allegations of deliberate killings of civilians by US forces in Iraq.  These include 24 Iraqis massacred in Haditha, 11 civilians allegedly executed in Ishaqi and an Iraqi civilian killed in Hamdania by US soldiers who subsequently falsified reports of his death.  Such attacks constitute grave human rights abuses.

Detention of minors
In October 2005, Amnesty International and Human Rights Watch published the results of a national study of sentences of life without parole imposed on children in the US.  The report focuses on the practice of judging minors as adults and sentencing them to life sentences to be served in adult prisons, without possibility of parole. The report found 2,225 persons condemned to life without parole for offences committed while a minor.  For some this involves being held while still a minor in an adult prison.  These practices violate international human rights standards.

Military Commissions Act of 2006
In October 2006, the Military Commissions Act was signed into law by the President of the United States.  The Act denies non-citizens the fundamental right to habeas corpus, eliminates numerous protections from abuse to which detainees are entitled under the Geneva Conventions, provides officials with retroactive immunity from accountability for past abuses and allows for the introduction of evidence obtained through coercion.

The full report is available at