Secret Detention and Forced Disappearance: The UN Report 2010

 

A/HRC/13/42 page 2
Summary
The present joint study on global practices in relation to secret detention in the context of countering terrorism was prepared, in the context of their respective mandates, by the SpecialRapporteur on the promotion and protection of human rights and fundamental freedoms whilecountering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, the Working Group on Arbitrary Detention (represented by its Vice-Chair), and the Working Group on Enforced and Involuntary Disappearances (represented by itsChair). Given that the violation of rights associated with secret detention fell within their respective mandates, and in order to avoid duplication of efforts and ensure their complementarynature, the four mandate holders decided to undertake the study jointly.In conducting the present study, the experts worked in an open, transparent manner. Theysought inputs from all relevant stakeholders, including by sending a questionnaire to all StatesMembers of the United Nations. Several consultations were held with States, and the expertsshared their findings with all States concerned before the study was finalized. Relevant excerptsof the report were shared with the concerned States on 23 and 24 December 2009.In addition to United Nations sources and the responses to the questionnaire from 44States, primary sources included interviews conducted with persons who had been held in secretdetention, family members of those held captive, and legal representatives of detainees. Flightdata were also used to corroborate information. In addition to the analysis of the policy and legaldecisions taken by States, the aim of the study was also to illustrate, in concrete terms, what itmeans to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indeliblemark on the victims, and on their families as well.The study initially describes the international legal framework applicable to secretdetention. At the outset, an explanation is given of the terminology used for the purpose of thestudy on what constitutes secret detention in the context of countering terrorism. The legalassessment concludes that secret detention is irreconcilably in violation of international humanrights law, including during states of emergency and armed conflict. Likewise, it is in violationof international humanitarian law during any form of armed conflict.Secret detention violates the right to personal liberty and the prohibition of arbitrary arrestor detention. No jurisdiction should allow for individuals to be deprived of their liberty in secretfor potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including
habeas corpus
. Secret detainees are typically deprived of their right to a fair trial when State authorities do not intend to charge or try them. Even if detainees are criminally charged, the secrecy and insecurity caused by the denial of contact to theoutside world and the fact that family members have no knowledge of their whereabouts and fateviolate the presumption of innocence and are conducive to confessions obtained under torture or other forms of ill-treatment. At the same time, secret detention amounts to an enforceddisappearance. If resorted to in a widespread or systematic manner, secret detention may evenreach the threshold of a crime against humanity.

 

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