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The principle of non-refoulement prohibits deportation of a person if there is a significant risk of that person being subjected to torture in the country of arrival. The principle has been repeatedly in the spotlights since 2001, as states came under increasing obligation to deny safe havens to terrorists. However, as this case proves, the principle was an issue even before September 11, 2001.

The Federal Court and the Court of Appeal rejected Suresh’s complaint against the decision to deport him. The Supreme Court held that the Minister of Citizenship and Immigration should reassess that decision, most importantly because both the Canadian constitution and international law rejects deportation to torture, as there would be a clear connection between the deprivation of someone’s human rights and the Canadian decision to expulse that person. Still, the Court did not exclude the possibility that in some cases, Canada may deport despite risk of torture. Also, the Court held that the Immigration Act had not provided Suresh with sufficient procedural safeguards.  

Anton Lekaj, born in 1980, was a member of the ‘Cipat’ group within the military police forces of the Kosovo Liberation Army (KLA). In 1999, there was an ongoing conflict between the Federal Republic of Yugoslavia, Serbia and Kosovo.

Between 12 and 15 of June 1999, Lekaj, together with other members of the KLA, detained 13 non-Albanian civilians and transferred them to premises in the Pastrik Hotel. The 13 civilians were beaten, tortured, sexually abused, and some of them were even killed.

Lekaj was arrested in August 2004 and charged with war crimes against civilians. He was subsequently tried in Serbia. On 18 September 2006, he was found guilty for his participation in the crimes and was sentenced to 13 years imprisonment.

In one of the first suits filed before the US courts challenging the US practice of 'extraordinary rendition', Syrian-born Canadian national Maher Arar lodged a complaint in January 2004 arguing that his civil rights had been violated. In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria where he was allegedly tortured before making false admissions of terrorist activity.

On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law.

On 7 June 2011, Aisha Gaddafi, the daughter of Libyan leader Muammar Gaddafi, filed a claim against NATO in Belgium. She argued that the NATO bombing in Tripoli on 30 April 2011 killed her daughter, her brother and other family members. Aisha Gaddafi asserted that the NATO forces specifically attacked the building that was not used in support of any military action. She claimed that the bombing constituted war crimes.

On 27 July 2011, the Belgium prosecutors announced that they decline to investigate the complaint on the basis of the absence of connection between the victims or the defendants and Belgium. 

The case came as a result of information that Afghan terror detainees transferred by the British Armed Forces to the Afghan National Directorate of Security (NDS) were beaten and physically mistreated. Maya Evans, a U.K. peace activist, sought to stop that practice and brought a case before the British High Court of Justice. On 25 June 2010, the Court decided that there was a chance that detainees were indeed mistreated at the NDS detention facility in Kabul. Therefore, the Court banned detainee transfers to this NDS facility. Transfers to the NDS facilities in Kandahar and Lashkar Gah remained allowed, although the Court imposed a series of ‘safeguards’ and monitoring arrangements on all future transfers of detainees.