A-HRC-13-42

A/HRC/13/42
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punishment, and could in itself constitute a form of such treatment. 31 The link between secret
detention and torture and other forms of ill-treatment is hence twofold: secret detention as such
may constitute torture or cruel, inhuman and degrading treatment; and secret detention may be
used to facilitate torture or cruel, inhuman and degrading treatment.
35. In addition, secret detention not only violates the prohibition against torture and other
forms of ill-treatment as defined above with regard to the victim of secret detention; but the
suffering caused to family members of a disappeared person may also amount to torture or other
forms of ill-treatment, 32 and also violates the right to family in terms of article 17, paragraph 1,
and article 23, paragraph 1, of the International Covenant on Civil and Political Rights.
5. State responsibility in cases of secret detention by proxy
36. Secret detention, involving the denial or concealment of a person’s detention, whereabouts
or fate has the inherent consequence of placing the person outside the protection of the law. The
practice of “proxy detention”, where persons are transferred from one State to another outside
the realm of any international or national legal procedure (“rendition” or “extraordinary
rendition”) for the specific purpose of secretly detaining them, or to exclude the possibility of
review by the domestic courts of the State having custody of the detainee, or otherwise in
violation of the well-entrenched principle of non-refoulement, entails exactly the same
consequence. The practice of “proxy detention” involves the responsibility of both the State that
is detaining the victim and the State on whose behalf or at whose behest the detention takes
place.
37. According to article 2, clause 1, of the International Covenant on Civil and Political
Rights, each State party undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status. The Human Rights Committee clarified, in its general
comment No. 31, that a State party must respect and ensure the rights laid down in the Covenant
to anyone within the power or effective control of that State party, even if not situated within the
territory of the State party. 33 Similarly, the International Court of Justice, in its advisory opinion
31 See also Commission on Human Rights resolution 2005/39, para. 9 and Human Rights
Chamber for Bosnia and Herzegovina, Decision on Admissibility and Merits, case no.
CH/99/3196, Avdo and Esma Palić v. The Republika Srpska, para. 74.
32 See, for example, Human Rights Committee, Quinteros v. Uruguay, communication No.
107/1981 (CCPR/C/OP/2), para. 14; European Court of Human Rights, Varnava and others v.
Turkey, 18 September 2009, paras. 200 - 202; Tanis and others v. Turkey, 2 August 2005, para.
219; Cyprus v. Turkey, 10 May, 2001, paras. 155-158; and Kurt v. Turkey, 25 May 1998, para
134 as well as Human Rights Chamber for Bosnia and Herzegovina, Decision on Admissibility
and Merits, case no. CH/99/3196, Avdo and Esma Palić v. Republika Srpska, paras. 79 - 80.
33 CCPR/C/21/Rev.1/Add.13, para. 10. See also for instance the concluding observations of the
Committee on the second and third periodic report of the United States of America
(CCPR/C/USA/CO/3/Rev.1), para. 10; and the concluding observations of the Committee