A-HRC-13-42

A/HRC/13/42
page 12
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
adopted by the General Assembly in its resolution 43/173, in the section entitled “Use of Terms”,
does not purport to provide a general definition. 2
9. Secret detention does not require deprivation of liberty in a secret place of detention; in
other words, secret detention within the scope of the present report may take place not only in a
place that is not an officially recognized place of detention, or in an officially recognized place
of detention, but in a hidden section or wing that is itself not officially recognized, but also in an
officially recognized site. Whether detention is secret or not is determined by its incommunicado
character and by the fact that State authorities, as described in paragraph 1 above, do not disclose
the place of detention or information about the fate of the detainee.
10. Any detention facility may fall within the scope of the present study. It can be a prison,
police station, governmental building, military base or camp, but also, for example, a private
residence, hotel, car, ship or plane.
11. Incommunicado detention, where the detainees may only have contact with their captors,
guards or co-inmates, would amount to secret detention also if the International Committee of
the Red Cross (ICRC) is granted access by the authorities, but is not permitted to register the
case, or, if it is allowed to register the case, is not permitted by the State to, or does not, for
whatever reason, notify the next of kin of the detainee on his or her whereabouts. In other words,
access by ICRC alone, without it being able to notify others of the persons’ whereabouts, would
not be sufficient to qualify the deprivation of liberty as not being secret. However, it is
understood that ICRC, in principle, would not accept access to a detention facility without the
possibility of exercising its mandate, which includes notification of the family about the
whereabouts and fate of the detainee. 3 If ICRC access is granted within a week, 4 it has been
deemed sufficient to leave the case outside the scope of the present study. ICRC access to certain
detainees may only be exceptionally and temporarily restricted for reasons of imperative military
necessity in an armed conflict. 5
2 E/CN.4/1997/4, paras. 69-85.
3 This policy was apparently not strictly followed at the detention facility at the United States
airbase at Kandahar, Afghanistan, according to the testimony of Murat Kurnaz (annex II,
case 14).
4 Compare, for instance, article 70 of the Third Geneva Convention: “Immediately upon capture,
or not more than one week after arrival at a camp, even if it is a transit camp, likewise in case of
sickness or transfer to hospital or to another camp, every prisoner of war shall be enabled to
write directly to his family.”
5 Art. 126, para. 2, of the Third Geneva Convention; art. 143, para. 3 of the Fourth Geneva
Convention.