A-HRC-13-42

A/HRC/13/42
page 14
attempts to circumvent the guarantees of applicable international human rights law inform a
broad approach as to the scope of the present study of what constitutes secret detention in the
context of countering terrorism.
14. Organized crimes, such as drug or human trafficking, are not covered by the present study,
unless anti-terrorism legislation is invoked. Whether the State has conferred on the case a link to
terrorism may have to be inferred from elements uttered by State officials or if the person is later
prosecuted on terrorism-related charges.
15. Detention by non-State actors, when not attributable to the State, is not addressed in the
present study. Hence, hostage-taking, kidnapping or comparable conduct by terrorists, criminals,
rebels, insurgents, paramilitary forces or other non-State actors do not fall within the ambit of the
report, which focuses on secret detention by or attributable to States and is addressed to the
Human Rights Council as an intergovernmental body.
16. Victims of the human rights violation of secret detention are not only the detainees
themselves, but also their families, who are not informed of the fate of their loved ones deprived
of their rights and held solely at the mercy of their captors.
B. Secret detention and international human rights
law and international humanitarian law
17. Secret detention is irreconcilable with international human rights law and international
humanitarian law. It amounts to a manifold human rights violation that cannot be justified under
any circumstances, including during states of emergency.
1. Secret detention and the right to liberty of the person
18. Secret detention violates the right to liberty and security of the person and the prohibition
of arbitrary arrest or detention. Article 9, paragraph 1, of the International Covenant on Civil and
Political Rights affirms that everyone has the right to liberty and security of person, that no one
should be subjected to arbitrary arrest or detention nor be deprived of his or her liberty except on
such grounds and in accordance with such procedure as are established by law. Furthermore,
article 9, paragraph 4, of the Covenant stipulates that anyone deprived of their liberty by arrest or
detention should be entitled to take proceedings before a court, in order that that court may
decide, without delay, on the lawfulness of their detention and order their release if the detention
is not lawful. The Human Rights Committee, in its general comment No. 8, highlighted that
article 9, paragraphs 1 and 4, and paragraph 3, of the International Covenant on Civil and
Political Rights as far as the right to be informed at the time of the arrest about the reasons
(E/CN.4/2005/6/Add.1), No. 6/2003 (E/CN.4/2004/3/Add.1), No. 1/1999
(E/CN.4/2000/4/Add.1), No. 21/1999 (E/CN.4/2000/4/Add.1) and No. 12/1998
(E/CN.4/1999/63/Add.1); decisions No. 36/1996 (E/CN.4/1997/4/Add.1), No. 1/1993
(E/CN.4/1994/27), No. 5/1993 (E/CN.4/1994/27), No. 30/1993 (E/CN.4/1994/27) and
No. 36/1993 (E/CN.4/1994/27).