Although the principle of non-refoulement is well anchored in human rights and refugee law, protection from refoulement on the ground remains a major challenge. Hostile policies towards migrants and the overriding interest to fight crime or counter security risks have resulted in attempts to cut back existing forms of protection. In many parts of the world, effective safeguards or remedies, especially interim forms of protection, are non-existent, grossly ineffective or inaccessible. The challenges to protection from refoulement are also reflected in the jurisprudence of the European Court of Human Rights (ECtHR) and the work of the Committee against Torture (ComAT). In fact, the largest part of the ComAT's case law deals with non-refoulement and the ComAT is therefore currently revising its General Comment on this topic. Eman Hamdan's book, The Principle of Non-Refoulement under the ECHR and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is thus very timely and relevant. The book presents a comprehensive analysis of the jurisprudence of the ComAT and the ECtHR on both procedural and substantive aspects of non-refoulement in order to help practitioners in determining which of these bodies provide more favourable protection in a specific case. This review thus analyses the book against the background of a practitioner's experience and perspective.

The first chapter of the book explains the concept and scope of non-refoulement. Hamdan provides a short analysis of the legal basis contained in Article 3 of the Convention against Torture,Footnote ¹ which specifically prohibits non-refoulement, and Article 3 of the European Convention on Human Rights (ECHR)Footnote ² which prohibits torture and other ill-treatment and has been applied to non-refoulement by the ECtHR. The author then provides an important analysis of the absolute nature of non-refoulement, which has come under threat by national security measures such as restrictive visa regulations or transfers to third countries. Hamdan shows that states have tried to derogate from the absolute nature of non-refoulement without success and both the ComAT and the ECtHR have adhered to their long-established jurisprudence in that regard.

The author further sets out the personal and territorial scope of the respective non-refoulement provisions. With regard to the former, the author concludes that under both the Convention against Torture and the ECHR all persons physically present within the national territory of a state, regardless of their status, are protected. Concerning the territorial scope, the author explains that non-refoulement also applies extraterritorially. Both the ComAT and the ECtHR have consistently found that a state is obliged to respect the non-refoulement provisions if it exercises effective control over a territory or a person, and both bodies have on numerous occasions condemned the transfer of detainees from United States or British detention facilities in Iraq and Afghanistan to the Iraqi or Afghani authorities. The extraterritorial application of non-refoulement is not only important in the context of rendition, but also for interceptions on the Mediterranean and Indian Ocean whereby individuals are returned before they reach or enter a state party's territory.

The second chapter addresses the content of non-refoulement. The author first examines the treatment from which a person is protected. With regard to the ECHR, the ECtHR derives the principle of non-refoulement from the prohibition against torture and inhuman or degrading treatment (IDT). Consequently, the return of an individual to another state where he or she would face the risk of torture or IDT is not compatible with the ECHR. With regard to the Convention against Torture, Article 3 applies to torture as defined in Article 1Footnote ³ – that is, to acts or omissions by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for a specific purpose. Since Article 3 of the Convention against Torture mentions only torture without referring to IDT, the author concludes that non-refoulement under this Convention does not apply to IDT. While it is true that the ComAT has not (yet) applied Article 3 to IDT in individual cases, I am of the view that the ComAT's concluding observations and its General Comment No 2 indicate a change of doctrine. General Comment No 2 states that ‘articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment’.Footnote ⁴ This is an explicit recognition that Article 3 applies to IDT. The ComAT derived this reasoning from the absolute and non-derogable nature of torture and IDT.Footnote ⁵ In addition, several recent concluding observations have referred to IDT in the context of Article 3: for instance, in its concluding observation on Syria in 2010, the ComAT stated that ‘[u]nder no circumstances should the state party expel, return or extradite a person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture or ill-treatment’.Footnote ⁶ In 2012, the ComAT recommended that Togo should ‘[r]espect the principle of non-refoulement in accordance with Article 3 of the Convention, and in particular the obligation to check whether there are substantial grounds for believing that the asylum seeker would be in danger of being subjected to torture or ill-treatment if expelled’.Footnote ⁷ I am of the view that it is likely, therefore, that the ComAT will apply the principle of non-refoulement to IDT in future cases.

The book then analyses certain immigration control practices. In particular, Hamdan discusses interception and rescue at sea, a much debated topic in the current migration crisis. In an attempt to limit migration, states have tried to prevent protection seekers from arriving on their shores by intercepting vessels while at sea. Most intercepted people are returned collectively without an individual assessment, in violation of the non-refoulement principle. Interceptions are incompatible with the ECHR and the Convention against Torture regardless of whether they occur in the waters of the intercepting state, at high sea or in the sea of another state. In all of these situations protection seekers are under the direct or extraterritorial jurisdiction of the intercepting state. Thus, violations of the non-refoulement principle include the Italian push-back policy; the interception measures of France, Malta, Spain and Portugal; and the Australian ‘Pacific Solution’, which includes transporting protection seekers to the Christmas Islands, the Ashmore and Cartier Islands and the Cocos Islands, all of which are under Australian jurisdiction. Since lawyers and human rights organisations are increasingly faced with non-refoulement in the context of migration, the author's elaborations in this chapter are especially timely and helpful.

In the third chapter, the author looks at the individual complaint procedures. An important topic in this chapter are interim measures. A key concern for most litigators of non-refoulement cases is the expulsion or extradition of the victim while the case is still pending. Responding to this risk, the ECtHR and the ComAT have developed the practice of taking interim measures requesting the state not to return the petitioner. Several states have challenged the power of the ECtHR and the ComAT to request interim measures, or have repeatedly disregarded them.Footnote ⁸ As the author shows, the interim measures of both the ECtHR and the ComAT are legally binding. Non-compliance with such measures prevents either tribunal from effectively examining a complaint; this would hinder an effective exercise of the right of complaint and thus violates Article 34 of the ECHR and Article 22 of the Convention against Torture.Footnote ⁹

The fourth chapter deals with risk assessment and evidence. Hamdan shows that the ComAT and the ECtHR assess risk in light of the facts that were known or ought to have been known to the sending state at the time the applicant was removed. If the applicant has not been removed, the material time for assessing the risk is the time at which the application is under consideration before the ComAT or the ECtHR. What is particularly difficult to produce in a non-refoulement petition is evidence, as a petitioner needs to prove a risk that could potentially occur in the future. The author provides a detailed list of factors that are taken into account by the relevant tribunal, such as the general situation of violence in the receiving country, the petitioner's membership of a vulnerable group, past ill-treatment, health condition, family circumstances, the risk sur place as a result of the petitioner's activities in his or her host country, as well as the assessment of the case by the United Nations High Commissioner for Refugees (UNHCR). The author substantiates these factors with the vast jurisprudence of the ComAT and the ECtHR. This section thus provides useful references relating to substantiating an application.

The fourth chapter also discusses diplomatic assurances. Explaining the practice of both the ComAT and the ECtHR, the author is very critical of their effectiveness, pointing out that ‘the effectiveness of and compliance with assurances depends less on their legal status, and more on the bilateral diplomatic relationship and the incentives the receiving and sending States have to comply with them’ (p 334). Hamdan rightly argues that ‘[d]iplomacy is intended to promote the common interests of States. The human rights may be one of those interests, but the maintenance of friendly relations usually remains the State's priority, even at the expense of protecting human rights’ (p 334). This argument is underpinned by a statement from the Swedish ambassador regarding the case of Agiza v Sweden.Footnote ¹⁰ When the former Swedish ambassador was asked why he waited a few weeks after Agiza was deported to visit him in prison, he replied that asking immediately for a meeting with Agiza would have signalled Sweden's lack of trust in the Egyptian authorities (p 335).

From a practitioner's perspective it would have been interesting if the author had also compared the acceptance rate of diplomatic assurances. There is a general perception that the ComAT, in contrast to the ECtHR, has hardly ever accepted a diplomatic assurance. It would have been instructive to know whether this is substantiated by empirical data. If it is true, a petitioner might be well advised to apply to the ComAT rather than the ECtHR if a diplomatic assurance has been made in his or her case.

The fifth and last chapter contains a summary of the most important findings and the key differences between the practice and jurisprudence of the ComAT and the ECtHR in non-refoulement cases. In addition, the chapter touches upon judicial dialogue, a topic that has gained recent prominence in academic discussion. The author shows that the ECtHR in numerous cases has referred to the jurisprudence, concluding observations, and general comments of the ComAT in order to substantiate its own findings. The ComAT, on the other hand, does not make explicit reference to the case law of the ECtHR but seems to implicitly ‘borrow’ the Court's findings. For instance, the ComAT has ‘borrowed’ the approach of the ECtHR by accepting that the risk of torture could stem also from non-state actors. The author thus concludes that:

Hamdan's findings support other studies which have found that the ECtHR uses the ComAT to support its interpretation of the Convention against Torture in order to provide a stronger legal basis.Footnote ¹¹

Last but not least, the area of reparation should be addressed – an important topic that was missing from the book. When deciding which forum to turn to, a petitioner inevitably has to look at the types of reparation the bodies in question can provide. In this context, there is a considerable difference between the ComAT and the ECtHR. While the ECtHR may issue binding judgments, the ComAT is only able to provide non-legally binding views. In addition, when finding a violation, the ECtHR may directly decide on the amount of financial compensation. The ComAT does not have this power and can only recommend to the government that the petitioner be compensated. This usually means that the petitioner has to lodge a further complaint within the national system. However, the ComAT does have other advantages. First, a decision is made far more quickly. While it takes an average of three to five years before the ECtHR reaches a decision,Footnote ¹² the procedure before the ComAT takes around one to two years. Second, the ComAT has proved to be more creative when it comes to reparation: it has, for example, asked states to determine the complainant's current whereabouts and well-being,Footnote ¹³ and to establish an effective follow-up mechanism in order to ensure that the complainant is not subjected to torture or ill-treatment.Footnote ¹⁴ In at least one instance, the ComAT asked the receiving state, the Russian Federation, to facilitate a visit by two ComAT members to the complainant in prison after having been invited by the Russian authorities.Footnote ¹⁵ Further, the ComAT referred to Article 14 of the Convention against Torture,Footnote ¹⁶ which requires a state party to fully redress the complainant by (a) compensating the complainant for violation of his rights under Article 3; (b) providing as full rehabilitation as possible by providing, inter alia, medical and psychological care, social services, and legal assistance, including reimbursement for past expenditure, future services and legal expenses; and (c) reviewing its system of diplomatic assurances with a view to avoiding similar violations in the future.Footnote ¹⁷ Hence, reparation and redress is a relevant factor when deciding whether to apply to the ECtHR or the ComAT, especially when the applicant has already been returned.

In sum, I can warmly recommend this very well written and structured book to anyone working in the area of or interested in non-refoulement. With the current refugee crisis and attempts to counter terrorism, the very essence of the principle of non-refoulement is under threat. This book is thus highly relevant and very timely. The direct comparison between the procedures and jurisprudence of the ECtHR and the ComAT, the two most important bodies in the context of non-refoulement, make this book an invaluable reference for practitioners. Moreover, the detailed analysis of the tension between certain immigration control policies and non-refoulement is a particular strength of this book. Similarly, the comprehensive list of factors and evidence that are taken into account by the ECtHR and the ComAT in assessing the risk of torture are an especially welcome contribution for practitioners when substantiating a complaint.