A-HRC-13-42

A/HRC/13/42
page 24
46. Although articles 9 and 14 of the Covenant are not among the non-derogable rights
enumerated in article 4, paragraph 2, the Human Rights Committee confirmed in its general
comment No. 29 that the prohibitions against taking of hostages, abductions or unacknowledged
detention were not subject to derogation. 47 It also considered that it was inherent in the
protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they
must be secured by procedural guarantees, including, often, judicial guarantees. The provisions
of the Covenant relating to procedural safeguards could never be made subject to measures that
would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a
way that would result in derogation from non-derogable rights. Safeguards related to derogation,
as embodied in article 4 of the Covenant, were based on the principles of legality and the rule of
law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are
explicitly guaranteed under international humanitarian law during armed conflict, the Committee
found no justification for derogation from these guarantees during other emergency situations,
and was of the opinion that the principles of legality and the rule of law required that
fundamental requirements of fair trial be respected during a state of emergency. Only a court of
law could try and convict a person for a criminal offence. The presumption of innocence has to
be respected. In order to protect non-derogable rights, the right to take proceedings before a court
to enable the court to decide without delay on the lawfulness of detention should not be
diminished by a State party’s decision to derogate from the Covenant. 48
47. In short, the main elements of articles 9 and 14 of the Covenant, namely the right to habeas
corpus, the presumption of innocence and minimum fair trial guarantees, as well as the
prohibition of unacknowledged detention, must be respected even in times of emergency,
including armed conflict.
48. The Working Group on Arbitrary Detention, in its opinions No. 43/2006, 2/2009
and 3/2009, 49 concurred with the view of the Human Rights Committee that the right to habeas
corpus must prevail even in states of emergency. The Working Group similarly stated that the
right not to be detained incommunicado over prolonged periods of time could not be derogated
from, even where a threat to the life of the nation existed. 50
49. 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, could
any State interest be invoked to justify or legitimize secret centres or places of detention which,
by definition, would violate the Declaration, without exception. 51
47
CCPR/C/21/Rev.1/Add.11.
48
Ibid.
49
A/HRC/7/4/Add.1, para. 36, A/HRC/13/30/Add.1, para. 33 and A/HRC/13/Add.1/, para. 36.
50
E/CN.4/2005/6, para. 75.
51 E/CN.4/1997/34.