A-HRC-13-42

A/HRC/13/42
page 18
article 17, paragraph 1, explicitly prohibits secret detention. The Working Group on Enforced or
Involuntary Disappearances confirmed in its general comment on article 10 of the Declaration on
the Protection of All Persons from Enforced Disappearance that under no circumstances,
including states of war or public emergency, can any State interest be invoked to justify or
legitimize secret centres or places of detention which, by definition, would violate the
Declaration, without exception.” 22
29. Article 24, paragraph 1, of the International Convention explicitly includes in the definition
of “victim” of enforced disappearances not only the disappeared person, but also any individual
who has suffered harm as the direct result of an enforced disappearance.” When exercising its
mandate to monitor the implementation by Member States to the Declaration on the Protection of
All Persons from Enforced Disappearance, the Working Group on Enforced or Involuntary
Disappearances has always adopted the perspective that families of the disappeared are to be
considered victims themselves. According to article 1.2 of the Declaration, any act of enforced
disappearance places the persons subjected thereto outside the protection of the law and inflicts
severe suffering on them and their families.”
30. Since secret detention amounts to an enforced disappearance, if resorted to in a widespread
or systematic manner, such aggravated form of enforced disappearance can reach the threshold
of a crime against humanity. In its article 7, the Rome Statute of the International Criminal Court
labels the “enforced disappearance of persons” as a crime against humanity if it is committed as
part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack. 23 Article 5 of the International Convention for the Protection of All
Persons from Enforced Disappearance states that the widespread or systematic practice of
enforced disappearance constitutes a crime against humanity as defined in applicable
international law, and should attract the consequences provided for under such applicable
international law, thus confirming this approach.
4. Secret detention and the absolute prohibition of
torture and other forms of ill-treatment
31. Every instance of secret detention is by definition incommunicado detention. According to
the Human Rights Committee, even comparably short periods of incommunicado detention may
violate the obligation of States, as contained in article 10, paragraph 1, of the International
Covenant on Civil and Political Rights, to treat all persons deprived of their liberty with
humanity and with respect for the inherent dignity of the human person. The Committee
confirmed that “prisoners should be allowed under necessary supervision to communicate with
their family and reputable friends at regular intervals, by correspondence as well as by receiving
mail.” 24 Although shorter time periods may also be prohibited, incommunicado detention of 15
22
E/CN.4/1997/34.
23
See also Prosecutor v. Kupreskic et al, IT-95-16-A, judgement of the trial chamber of the
International Criminal Tribunal for the Former Yugoslavia, para. 566 (14 January 2000).
24
Miguel Angel Estrella v. Uruguay, communication No. 74/1980 (CCPR/C/OP/2).