A-HRC-13-42

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A/HRC/13/42 page 4 legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed. The study subsequently highlights the fact that secret detention in connection with counter-terrorism policies remains a serious problem on a global scale, through the use of secret detention facilities similar to those described in the study; the declaration of a state of emergency, which allows prolonged secret detention; or forms of “administrative detention”, also allowing prolonged secret detention. The cases and situations referred to, while not exhaustive, serve the purpose of substantiating the existence of secret detention in all regions of the world within the confines of the definition presented earlier. In their conclusions, the experts reiterate that international law clearly prohibits secret detention, which violates a number of human rights and humanitarian law norms that may not be derogated from under any circumstances. If secret detention constitutes an enforced disappearance and is widely or systematically practiced, it may even amount to a crime against humanity. However, in spite of these unequivocal norms, the practice of secret detention in the context of countering terrorism is widespread and has been reinvigorated by the “global war on terror”. The evidence gathered by the experts clearly shows that many States, referring to concerns relating to national security - often perceived or presented as unprecedented emergencies or threats - resort to secret detention. Secret detention effectively takes detainees outside the legal framework and renders safeguards contained in international instruments meaningless, including, importantly, that of habeas corpus. The most disturbing consequence of secret detention is, as many of the experts’ interlocutors pointed out, the complete arbitrariness of the situation, together with the uncertainty surrounding the duration of the secret detention, and the feeling that there is no way the individual can regain control of his or her life. States of emergency, armed conflicts and the fight against terrorism - often framed in vaguely defined legal provisions - constitute an “enabling environment” for secret detention. As in the past, extraordinary powers are today conferred on authorities, including armed forces, law enforcement bodies and/or intelligence agencies, under states of emergency or global war paradigms without, or with very restricted, control mechanisms by parliaments or judicial bodies. In many contexts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions. Many times, although intelligence bodies are not authorized by legislation to detain persons, they do so, sometimes for prolonged periods. In such situations, oversight and accountability mechanisms are either absent or severely restricted, with limited powers and hence ineffective. Secret detention has relied on systems of trans-border (regional or global) cooperation; in many instances, foreign security forces indeed operate freely in the territory of other States. It also leads to the mutual exchange of intelligence information between States. A crucial element in international cooperation has been the transfer of alleged terrorists to other countries, where they may face a substantial risk of being subjected to torture and other cruel, inhuman and
A/HRC/13/42 page 5 degrading treatment, in contravention of the principle of non-refoulement. Practices such as “hosting” secret detention sites or providing proxy detention have been supplemented by numerous other facets of complicity, including authorizing the landing of airplanes for refuelling, short-term deprivation of liberty before handing over the “suspect”, the covering up of kidnappings, and so on. With very few exceptions, too little has been done to investigate allegations of complicity. Secret detention as such may constitute torture or ill-treatment for the direct victims as well as for their families. The very purpose of secret detention, however, is to facilitate and, ultimately, cover up torture and inhuman and degrading treatment used either to obtain information or to silence people. While in some cases elaborate rules are put in place authorizing “enhanced” techniques that violate international standards of human rights and humanitarian law, most of the time secret detention has been used as a kind of defence shield to avoid any scrutiny and control, making it impossible to learn about treatment and conditions during detention. The generalized fear of secret detention, and its corollaries such as torture and ill-treatment, tends to effectively result in limiting the exercise of a large number of human rights and fundamental freedoms. These include the freedom of expression and the freedom of association, as they often go hand in hand with the intimidation of witnesses, victims and their families. The experts are extremely concerned that many victims of secret detention from many countries around the world indicated their fear of reprisal, against themselves personally or against their families, if they cooperated with the study and/or allowed their names to be used. The injustice done by secretly detaining somebody is prolonged and replicated all too frequently once the victims are released, because the concerned State may try to prevent any disclosure about the fact that secret detention is practiced on its territory. In almost no recent cases have there been any judicial investigations into allegations of secret detention, and practically no one has been brought to justice. Although many victims feel that the secret detention has stolen years of their lives and left an indelible mark, often in terms of loss of their livelihood and frequently their health, they have almost never received any form of reparation, including rehabilitation or compensation. Such a serious human rights violation therefore deserves appropriate action and condemnation. The experts conclude with concrete recommendations that are aimed at curbing the resort to secret detention and the unlawful treatment or punishment of detainees in the context of counter-terrorism: (a) Secret detention should be explicitly prohibited, along with all other forms of unofficial detention. Detention records should be kept, including in times of armed conflict, as required by the Geneva Conventions, and should include the number of detainees, their nationality and the legal basis on which they are being held, whether as prisoners of war or civilian internees. Internal inspections and independent mechanisms should have timely access to all places where persons are deprived of their liberty for monitoring purposes, at all times. In times of armed conflict, the location of all detention facilities should be disclosed to the International Committee of the Red Cross;
Page 1 and 2: UNITED NATIONS A General Assembly D
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Page 9 and 10: A/HRC/13/42 page 9 CONTENTS (contin
Page 11 and 12: A/HRC/13/42 page 11 by examples the
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A/HRC/13/42 page 97 Masood Janjua,
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A/HRC/13/42 page 99 Disappearances
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A/HRC/13/42 page 117 Abdulaziz al-K
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A/HRC/13/42 page 123 the report, it
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A/HRC/13/42 page 125 political diss
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A/HRC/13/42 page 127 Kololo, an upm
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A/HRC/13/42 page 129 281. Those who
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A/HRC/13/42 page 131 4. Torture and
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A/HRC/13/42 page 133 (h) Victims of
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A/HRC/13/42 page 163 2. From 16 May
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A/HRC/13/42 page 179 * Information
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A-HRC-13-42

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