ADVANCE UNEDITED VERSION Distr.GENERALA/HRC/13/4226 January 2010Original: ENGLISH HUMAN RIGHTS COUNCILThirteenth sessionAgenda item 3 Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary DisappearancesCONTENTS Paragraph Page ^ I. INTRODUCTION 1-7 II. SECRET DETENTION UNDER INTERNATIONAL LAW 8-56 A. Terminology 8-16 B. Secret detention and international human rights law and international humanitarian law 17-56 1. Secret detention and the right to liberty of the person 18-23 2. Secret detention and the right to a fair trial 24-27 3. Secret detention and enforced disappearance 28-30 4. Secret detention and the absolute prohibition on torture and other forms of ill-treatment 31-35 5. State responsibility through secret detention by proxy 36-43 6. Secret detention and derogations from international human rights 44-53 7. Secret detention and international humanitarian law 54-56 ^ III. SECRET DETENTION PRACTICES IN PAST CONTEXTS 57-97 A. The emergence of the recent practice of secret detention 57-59 B. The recent practice of secret detention 60-86 1. Secret detention in Latin America 60-70 2. Secret detention in Africa 71-74 3. Secret detention in Northern Africa and the Middle East 75-78 4. Secret detention in Asia 79-83 5. Secret detention in Europe 84-86 C. The United Nations and regional responses towards outlawing the practice of secret detention 87-97 ^ IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001 98-162 A. The “high-value detainee” program and the CIA’s own secret detention facilities 103-129 B. CIA detention facilities or facilities operated jointly with US military in battlefield zones 130-139 1. Afghanistan 131-135 2. Iraq 136-139 C. Proxy detention sites 140-156 1. Jordan 143-144 2. Egypt 145 3. The Syrian Arab Republic 146-148 4. Morocco 149 5. Pakistan 150-151 6. Ethiopia 152-154 7. Djibouti 155 8. Uzbekistan 156 D. Complicity in the practice of secret detention 157 E. Secret detention and the United States administration of President Obama 158-165 ^ V. THE NATURE AND SCOPE OF SECRET DETENTION PRACTICES IN RELATION TO CONTEMPORARY REGIONAL OR DOMESTIC COUNTER-TERRORIST EFFORTS 165-281 A. Asia 167-201 B. Central Asia 202-206 C. Europe 207-214 D. Middle East and North Africa 215-250 E. Sub-Saharan Africa 251-281 ^ V. CONCLUSIONS 282-292 Annex ISUMMARY OF GOVERNMENT REPLIES TO QUESTIONNAIRE Annex II^ CASE SUMMARIES I. INTRODUCTION The present joint study on global practices in relation to secret detention in the context of countering terrorism was prepared by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on Arbitrary Detention (represented by its Vice Chairperson), and the Working Group on Enforced and Involuntary Disappearances (represented by its Chairperson). The study was prepared within the mandates of the above-mentioned special procedures. In particular, the Human Rights Council, in its resolution 6/28, requested the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to make concrete recommendations on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and to work in close coordination with other relevant bodies and mechanisms of the United Nations, in particular with other special procedures of the Council, in order to strengthen the work for the promotion and protection of human rights and fundamental freedoms while avoiding unnecessary duplication of efforts. In its resolution 8/8, the Council requested the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to study, in a comprehensive manner, trends, developments and challenges in relation to combating and preventing torture and other cruel, inhuman or degrading treatment or punishment, and to make recommendations and observations concerning appropriate measures to prevent and eradicate such practices. In its resolution 6/4, the Council requested the Working Group on Arbitrary Detention to seek and receive information from Governments and intergovernmental and non-governmental organizations, and receive information from the individuals concerned, their families or their representatives relevant to its mandate, and to formulate deliberations on issues of a general nature in order to assist States to prevent and guard against the practice of arbitrary deprivation of liberty. Like other mandates, it was asked to work in coordination with other mechanisms of the Human Rights Council. In its resolution 7/12, the Council requested the Working Group on Enforced or Involuntary Disappearances to consider the question of impunity in the light of the relevant provisions of the Declaration on the Protection of All Persons from Enforced Disappearances, having in mind the set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/Sub.2/1997/20/Rev.1, annex II, and E/CN.4/2005/102/Add.1), and to provide appropriate assistance in the implementation by States of the Declaration and existing international rules. In the above context, the four mandates endeavoured to address global practices in relation to secret detention in counter-terrorism. In the joint study, they describe the international legal framework applicable to secret detention and provide a historical overview of the use of secret detention. The study addresses the use of secret detention in the context of the “global war on terror” in the post 11 September 2001 era. To the extent possible, in order to demonstrate that the practice of secret detention is regrettably not an uncommon one, it also highlights a number of cases where it has been utilized in and by States from various geographical regions. Owing to its global nature, the present study cannot be exhaustive but rather aims to highlight and illustrate by examples the wide spread practice of secret detention and related impunity. Finally, the study concludes with concrete recommendations regarding these practices, aimed at curbing the use of secret detention and the unlawful treatment or punishment of detainees in the context of counter-terrorism. Owing to the secrecy of the practice of secret detention, it was often difficult to gather first hand information; nevertheless, a wide array of national, regional and international sources was consulted. While United Nations sources have been drawn upon, primary sources include responses to a questionnaire sent to all Member States (annex I) and interviews with current or former detainees (summaries of which are given in annex II). In some cases, secondary sources such as media and other sources were used. Such accounts, while not always verifiable are utilized when regarded by the mandate holders as credible. Responses to the questionnaire were received from 44 States. A number of interviews had been held with people who were held in secret detention, family members of those held captive, as well as legal representatives of individuals held. The mandate holders conducted face to face interviews in Germany and the United Kingdom of Great Britain and Northern Ireland. Other interviews were conducted by telephone. Formal meetings at the level of capitals were held with officials in Berlin, London and Washington, D.C. The mandate holders thank those States that cooperated with them and facilitated their joint work. They also wish to thank the Office of the United Nations High Commissioner for Human Rights (OHCHR) as well as others who provided valuable research and other assistance to the study.^ II. SECRET DETENTION UNDER INTERNATIONAL LAW A. Terminology For the purpose of the present report, a person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorization, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State,1 deprive persons of their liberty; where the person is not permitted any contact with the outside world (“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty hidden from the outside world, including, for example family, independent lawyers or non-governmental organizations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee. In the present report, the term “detention” is used synonymously with “deprivation of liberty”, “keeping in custody” or “holding in custody”. The distinction drawn between “detention” and “imprisonment” in the preamble to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in its resolution 43/173, in the section entitled “Use of Terms”, does not purport to provide a general definition.2 Secret detention does not require deprivation of liberty in a secret place of detention; in other words, secret detention within the scope of the present report may take place not only in a place that is not an officially recognized place of detention, or at an officially recognized place of detention, but in a hidden section or wing, which is itself not officially recognized; but also in an officially recognized site. Whether or not detention is secret is determined by its incommunicado character and by the fact that State authorities, as described in paragraph 1 above, do not disclose the place of detention or information about the fate of the detainee. Any detention facility may fall within the scope of the present study. It can be a prison, police station, governmental building, military base or camp, but also for example a private residence, hotel, car, ship or plane. Incommunicado detention, where the detainees may only have contact with their captors, guards or co-inmates, would amount to secret detention also if the International Committee of the Red Cross (ICRC) is granted access by the authorities, but is not permitted to register the case, or, if it is allowed to register the case, is not permitted by the State to, or does not, for whatever reason, notify the next of kin of the detainee on his or her whereabouts. In other words, access by ICRC alone, without it being able to notify others of the persons’ whereabouts, would not be sufficient to qualify the deprivation of liberty as not being secret. However, it is understood that ICRC, in principle, would not accept access to a detention facility without the possibility of exercising its mandate, which includes notification of the family about the whereabouts and fate of the detainee3. If ICRC access is granted within a week,4 it has been deemed sufficient to leave the case outside the scope of the present study. ICRC access to certain detainees may only be exceptionally and temporarily restricted for reasons of imperative military necessity in an armed conflict.5 A case falls within the scope of the present study on secret detention in the name of counter-terrorism only if State authorities or persons acting under the orders, or with the authorization, consent, support or acquiescence of the State, or in any other way attributable to the State, detain secretly persons: (a) Who have committed, or are suspected of planning, aiding or abetting, terrorist offences, irrespective of what classification of these offences is used by a Government; (b) In any situation where terrorism or related notions (such as extremism or separatism)6 are used to describe or justify the context in, or basis upon, which a person has been detained; (c) In any situation where extraordinary detention powers or procedures are triggered (under notions such as anti-terrorism acts, states of emergency or national security acts). The qualification by States of certain acts as “terrorist acts” is often aimed at applying a special regime with limited legal and procedural safeguards in place. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed concern that the absence of a universal and comprehensive definition of the term of “terrorism”, leaving it to individual States to define it carries the potential for unintended human rights abuses and even deliberate misuse of the term. He added that “it was essential to ensure that the term “terrorism” is confined in its use to conduct that is of a genuinely terrorist nature.”7 The Working Group on Arbitrary Detention also noted with concern the frequent attempts by Governments to use normal legislation or to have recourse to emergency or special laws and procedures to combat terrorism and thereby permit, or at least increase, the risk of arbitrary detention. It added that such laws, either per se or in their application, by using an extremely vague and broad definition of terrorism, bring within their fold the innocent and the suspect alike, and thereby increase the risk of arbitrary detention, disproportionately reducing the level of guarantees enjoyed by ordinary persons in normal circumstances. Legitimate democratic opposition, as distinct from violent opposition, becomes a victim in the application of such laws.”8 Examples of such a type of criminal offence couched in broad terms relate to the subversion of State powers or simply anti-subversion laws”9. Such attempts to circumvent the guarantees of applicable international human rights law inform a broad approach as to the scope of the present study of what constitutes secret detention in the context of countering terrorism. Organized crimes, such as drug or human trafficking, are not covered by the study unless anti-terrorism legislation is invoked. Whether the State has conferred on the case a link to terrorism may have to be inferred from elements uttered by State officials or if the person is later prosecuted on terrorism-related charges. Detention by non-State actors, when not attributable to the State, will not be addressed in the present study. Hence, hostage-taking, kidnapping or comparable conduct by terrorists, criminals, rebels, insurgents, paramilitary forces or other non-State actors do not fall within the ambit of the report, which focuses on secret detention by or attributable to States and is addressed to the Human Rights Council as an intergovernmental body. Victims of the human rights violation of secret detention are not only the detainees themselves, but also their families who are not informed of the fate of their loved ones deprived of their rights and held solely at the mercy of their captors.^ B. Secret detention and international human rights law and international humanitarian law Secret detention is irreconcilable with international human rights law and international humanitarian law. It amounts to a manifold human rights violation that cannot be justified under any circumstances, including during states of emergency. ^ 1. Secret detention and the right to liberty of the person Secret detention violates the right to liberty and security of the person and the prohibition of arbitrary arrest or detention. Article 9, paragraph 1, of the International Covenant on Civil and Political Rights affirms that everyone has the right to liberty and security of person, that no one should be subjected to arbitrary arrest or detention nor be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. Furthermore, article 9, paragraph 4 of the Covenant stipulates that anyone deprived of their liberty by arrest or detention should be entitled to take proceedings before a court, in order that that court may decide, without delay, on the lawfulness of their detention and order their release if the detention is not lawful. The Human Rights Committee, in its general comment No. 8, highlighted that article 9, paras. 1 and 4, and para. 3, ICCPR as far as the right to be informed, at the time of the arrest, about the reasons therefore, are applicable to all deprivations of liberty, “whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc.”10The practice of secret detention in itself violates the above-mentioned guarantees, or in most cases, automatically or inherently entails such consequences that amount to a violation. As secret detainees are held outside the reach of the law, no procedure established by law is being applied to them as required by article 9 of the International Covenant on Civil and Political Rights (ICCPR). Even if a State authorized in its domestic laws the practice of secret detention, such laws would in themselves be in violation of the right to liberty and security and would therefore not stand. Secret detention without contact with the outside world entails de facto that the detainees do not enjoy the right enshrined in article 9, paragraph 4 of the Covenant, namely the possibility to institute habeas corpus, amparo, or similar proceedings, personally or on their behalf, challenging the lawfulness of detention before a court of law that is competent to order their release in the event that the detention is found to be unlawful. The Working Group on Arbitrary Detention has classified secret detention as being per se arbitrary, falling within category I of the categories of arbitrary detention that it has developed. The Working Group qualifies deprivation of liberty as arbitrary in terms of category I when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.11In its opinion No. 14/200912concerning a case of detention unacknowledged by the Government at an undisclosed place of custody, the Working Group held that no jurisdiction could allow for incommunicado detention where no access to counsel or relatives was granted and no judicial control over the deprivation of liberty was exercised; in short, where no legal procedure established by law whatsoever was followed.13In its opinion No. 12/2006,14the Working Group on Arbitrary Detention considered the deprivation of liberty of two individuals, one of whom was held at a secret place of detention, to be arbitrary under category I, as both had not been formally charged with any offence, informed of the duration of their custodial orders, brought before a judicial officer, allowed to name a lawyer to act on their behalf, nor otherwise been provided the possibility to challenge the legality of their detention.15Opinion No. 29/2006 of the Working Group on Arbitrary Detention16concerned 26 individuals who were alleged to have been captured in various countries, partly handed over into the custody of the United States of America under its secret Central Intelligence Agency (CIA) rendition programme in the context of the so called “global war on terror”. They were held incommunicado at various “black sites” under the jurisdiction of the United States for prolonged periods of time, without charge or trial, access to courts of law, and without their families being informed or aware of their fate or whereabouts. In spite of the absence of a response by the Government of the United States to these allegations, the Working Group considered itself in a position to render an opinion on the cases of these 26 individuals, many of whom suspected of having been involved in serious crimes, and held that their detention clearly fell within category I of arbitrary detention.In most cases, secret detention, as it is outside any international or national legal regime, also implies that the duration of detention is not known to the detainee; it rests at the sole discretion of the authorities ordering the detention. Hence, the very nature of secret detention may result in potentially, or actually, indefinite periods of detention, which render this type of detention arbitrary on this additional ground.17^ 2. Secret detention and the right to a fair trial Secret detention outside the protection of the law is often resorted to with the purpose of depriving the detainee of the rights that he or she would otherwise enjoy as a person charged with a criminal offence, namely the right to a fair trial, as enunciated in article 14 of the International Covenant on Civil and Political Rights and the complementary guarantees contained in article 9, paragraphs 2 and 3. Article 9, paragraph 2 of the Covenant stipulates that anyone who is arrested should be promptly informed of any charges against him. Paragraph 3 of the same article requires that anyone arrested or detained on a criminal charge be brought promptly before a judge or other officer authorized by law to exercise judicial power. The above mentioned provisions presuppose that anyone suspected of having committed a recognizable criminal offence and arrested on these grounds must be informed about the underlying charges if the interest of justice requires the prosecution of such a crime. Otherwise, the State could circumvent the additional rights extended to suspects of a crime spelled out in articles 9 and 14 of the Covenant. Equally, if someone suspected of a crime and detained on the basis of article 9 of the Covenant is charged with an offence but not brought to trial, the prohibitions of unduly delaying trials as provided for by article 9, paragraph 3, and article14, paragraph 3 (c) of the Covenant may be violated at the same time.18 As will be shown in the present study, in the majority of cases, State authorities who arrest and detain people incommunicado in a secret location often do not intend to charge the detainee with any crime, or even to inform him or her about any charges or to put the person on trial without undue delay before a competent, independent and impartial tribunal established by law where the guilt or innocence of the accused could be established, in violation of article 14, paragraphs 1, cl. 2, 2, 3 (a) and (c) of the International Covenant on Civil and Political Rights . Such detainees do not have adequate time and facilities for the preparation of their defence, and cannot communicate freely with counsel of their own choosing as required by article 14, paragraph 3 (c) of the Covenant. Consequently, the Working Group on Arbitrary Detention has considered secret detention a violation of the right to fair trial.19Certain practices inherent in secret detention, such as the use of secrecy and insecurity caused by denial of contact to the outside world and the family’s lack of knowledge of the whereabouts and fate of the detainee to exert pressure to confess to a crime, also infringe the right not to be compelled to testify against oneself or to confess guilt derived from the principle of presumption of innocence.20 . Secret detention is furthermore conducive to confessions obtained under torture and other forms of ill-treatment.^ 3. Secret detention and enforced disappearance Every instance of secret detention also amounts to a case of enforced disappearance. Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance defines “enforced disappearance” as: the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. This definition does not require intent to put the person concerned outside the protection of the law as a defining element, but rather refers to it as an objective consequence of the denial, refusal or concealment of the whereabouts and fate of the person.21The International Convention, in its 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 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.” 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.23Article 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 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.”24Although shorter time periods may also be prohibited incommunicado detention of 15 days constitutes a violation of article 10 of the Covenant.25 Incommunicado detention includes situations where a detainee's family is informed that the person is “safe”, without disclosure of the location or nature of the person’s detention. The ill-treatment threshold may be reached when the period of incommunicado detention is prolonged and additional circumstances prevail. For example, in the case of Polay Campos v. Peru26the Human Rights Committee found a violation of both articles 727 and 10 of the Covenant as the detained submitter of the complaint had not been allowed to speak or to write to anyone, including legal representatives, for nine months, and had been kept in an unlit cell for 23 and a half hours a day in freezing temperatures. It held that the incommunicado detention to which the author was subjected for longer than eight months constituted inhuman and degrading treatment28. Similarly, the Inter-American Court of Human Rights has stated that prolonged isolation and deprivation of communications are in themselves cruel and inhuman treatment, even if it is not known what has actually happened during the prolonged isolation of the particular individual.29In El-Megreisi v. Libyan Arab Jamahiriya,30the Human Rights Committee found that the Government of the Libyan Arab Jamahiriya had violated articles 10, paragraphs 1 and 7 of the Covenant by detaining an individual for six years, the last three of which incommunicado and in an unknown location, which in the view of the Committee reached the torture threshold. The practice of secret detention as reflected by the cases covered in the present study, also confirms that incommunicado detention, including secret detention, facilitates the commission of acts of torture. The General Assembly, in its resolution 60/148, and the Human Rights Council have both stated that prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and could in itself constitute a form of such treatment.31Hence, the link between secret detention and torture and other forms of ill-treatment is 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. 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. The suffering caused to family members of a disappeared person may also amount to torture or other forms of ill-treatment,32and 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 through secret detention by proxy 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. 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.”33Similarly, the International Court of Justice, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, recognized that the jurisdiction of States is primarily territorial, but concluded that the Covenant extends to “acts done by a State in the exercise of its jurisdiction outside of its own territory”.34An excessively literal reading of article 2, paragraph 1 of the Covenant would defeat the very purpose of the Covenant.35As far as the Convention against Torture is concerned, article 2, paragraph 1 and article16, paragraph 1, refer to each State party’s obligation to prevent acts of torture “in any territory under its jurisdiction”. The removal of a person to a State for the purpose of holding that person in secret detention, or the exclusion of the possibility of review by domestic courts of the sending State, can never be considered compatible with the obligation laid down in article 2, paragraph 2 of the International Covenant on Civil and Political Rights. The Working Group on Arbitrary Detention has dismissed this practice of “reverse diplomatic assurances”, in which the sending Government seeks assurances that the person handed over will be deprived of liberty, even though there are no criminal charges against him and no other recognizable legal basis for detention, as being at variance with international law.36In its opinion No. 11/2007,37 the Working Group on Arbitrary Detention, concurring with the view of the Human Rights Committee expressed in its general comment No. 31, declared the Government of Afghanistan responsible for the arbitrary detention of an individual who was being detained at Baghram Air Base, under the control of the United States of America, but on Afghan soil with the knowledge of Afghan authorities. Similarly, the Convention against Torture and other cruel, inhuman or degrading treatment or punishment not only expressly bans torture, but in its article 4, paragraph 1, it also implicitly prohibits complicity in acts of torture as it requires each State party to ensure that all acts of torture, including those acts by any person that constitute complicity or participation in torture, are criminal offences under its criminal law. This approach has been supported by the Committee against Torture in its jurisprudence.38 In particular, the Committee considered complicity to include acts that amount to instigation, incitement, superior order and instruction, consent, acquiescence and concealment.39 A State would thus also be responsible when it was aware of the risk of torture and ill-treatment, or ought to have been aware of the risk, inherently associated with the establishment or operation of such a facility or a given transfer to the facility, and did not take reasonable steps to prevent it; or when the State received claims that someone had been subjected to torture or other ill-treatment, or an enforced disappearance, or otherwise received information suggesting that such acts may have taken place but failed to have the claims impartially investigated.40 A transferring State could also be internationally responsible under general rules of attribution of State responsibility for internationally wrongful acts. Recognizing that internationally wrongful conduct is often the results of the collaboration of more than one State, rather than one State acting alone - particularly found to be the case in the phenomenon of secret detention practices of the so called “global war on terror” - the general principles of State responsibility under international law establish the unlawfulness of the complicity of States in wrongful acts.41 In particular, a State that aids or assists another State in the commission of an internationally wrongful act is internationally responsible if it does so knowing the circumstances and if the wrongful act would have been wrongful if it had been committed by the assisting State. The real or probable conduct by another State may be decisive in assessing whether the first State has breached its own international obligations. Article 16 of the Articles on Responsibility of the Status for Internationally Wrongful Acts, reflecting a rule of customary international law,42 provides that: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” Additionally, under the rules of State responsibility, where one State is in “serious breach” of its obligations under peremptory norms of international law – as would be the case if a State were to be torturing detainees –other States have a duty to cooperate to bring such a serious breach of the prohibition against torture to an end, and are required not to give any aid or assistance to its continuation. Furthermore, the practice of “proxy detention” by a State in circumstances where there is a risk of torture in the hands of the receiving State could amount to a violation of the State’s obligation under customary international law on non-refoulement – that is, not to transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.43 The Declaration on the Protection of All Persons from Enforced Disappearance and the International Convention for the Protection of All Persons from Enforced Disappearance state that the principle of non-refoulement applies to the risk of enforced disappearances. Article 17, paragraph 1, of the International Convention provides that: “no State party shall expel, return (‘refouler’), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.” The Working Group on Arbitrary Detention has argued that the risk of arbitrary detention in the country of destination, which includes secret detention, should prohibit the transfer of a person into the jurisdiction of the receiving State as well.44 Diplomatic assurances from the receiving State for the purpose of overcoming the obstacle of the non-refoulement principle do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement.45^ 6. Secret detention and derogations from international human rights Article 4, paragraph 1 of the International Covenant on Civil and Political Rights permits States to derogate from certain rights contained therein “in times of public emergency which threatens the life of the nation”. However, this provision subjects such measures to a number of procedural and substantive safeguards regarding derogation measures: the State must have officially proclaimed a state of emergency; the derogation measures must be limited to those strictly required by the exigencies of the situation; they must not be inconsistent with other international obligations of the State; and they must not be discriminatory. In its general comment No. 29,46 the Human Rights Committee highlighted the exceptional and temporary character of derogations, stating that the Covenant required that, even during an armed conflict, measures derogating from the Covenant were allowed only if and to the extent that the situation constituted a threat to the life of the nation. Derogation measures must be lifted as soon as the public emergency or armed conflict ceases to exist. Most importantly, derogation measures must be “strictly required” by the emergency situation. This requirement of proportionality implies that derogations cannot be justified when the same aim could be achieved through less intrusive means. Article 4, paragraph 2 of the Covenant lists certain rights that cannot be derogated from, including the prohibition of torture or cruel, inhuman or degrading treatment or punishment (art. 7). 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 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. 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 existed50 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 As the disappearance of persons is inseparably linked to treatment that amounts to a violation of article 7 of the Covenant, according to the jurisprudence of the Human Rights Committee,52 the prohibition against enforced disappearance must not be derogated from, either. Similarly, article 1, paragraph 2, of the International Convention for the Protection of All Persons from Enforced Disappearance stipulates: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. Even if one were (wrongfully)53 classify the global struggle against international terrorism in its entirety as a “war” for the purpose of applying the Third and Fourth Geneva Conventions, international human rights law continues to apply: The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of those rights, both spheres of law are complementary, not mutually exclusive.54 In its advisory opinion on the ^ Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice clearly affirmed the applicability of the Covenant during armed conflicts, stating that “the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what constitutes an arbitrary deprivation of life, however, then must be determined by the applicable lex specialis, namely, the law applicable in armed conflict.”55 The Court further developed its view in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories: the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the [ICCPR]. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”56 In its judgment in the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court already applied international humanitarian law and international human rights law in parallel, without as a first step identifying the lex specialis or the exclusive matter.57 In their report on the mission to Lebanon and Israel from 7 to 14 September 2006, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Representative of the Secretary-General on the human rights of internally displaced persons and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living stated that human rights law and international humanitarian law were not mutually exclusive, but existed in a complementary relationship during armed conflict; a full legal analysis required consideration of both bodies of law. In respect of certain human rights, more specific rules of international humanitarian law might be relevant for the purposes of their interpretation.58 A complementary approach forming the basis of the present study is also supported by the principle of systemic integration contained in article 31, paragraph 3 (c) of the Vienna Convention on the Law of Treaties, which provides that, in interpreting an international treaty there shall be taken into account, together with the context … any relevant rules of international law applicable in the relations between the parties [of the treaty].”59^ 7. Secret detention and international humanitarian law International humanitarian law prohibits secret detention as clearly as international human rights law does. Under the Geneva Conventions, which apply to all armed conflicts, there are situations in which persons falling into two categories may be detained: prisoners of war and civilians. Generally, prisoners of war are to be released at the end of active hostilities. Civilians may be detained by an occupying power under very strict conditions namely (a) if such detention is “necessary for imperative reasons of security”60 and (b) for penal prosecutions. The use of novel status designations to avoid Geneva Convention protections, such as “unlawful enemy combatants,” is irrelevant in this context from a legal point of view, as “it does not constitute a category recognized and defined under international law”.61 This is true also for non-international armed conflicts, albeit the notion of prisoners of war is not directly applicable.62 Notwithstanding the capacity to detain individuals, the entire system of detention provided for by the Geneva Conventions is founded on the notion that detainees must be registered and held in officially recognized places of detention. According to article 70 of the Third Geneva Convention, prisoners of war are to be documented, and their whereabouts and health conditions made available to family members and to the country of origin of the prisoner within one week. Article 106 of the Fourth Geneva Convention governing the treatment of civilians establishes virtually identical procedures for the documentation and disclosure of information concerning civilian detainees. According to ICRC, these procedures are meant to ensure that internment is not a measure of punishment; interned persons must therefore not be held incommunicado.63The prohibition of enforced disappearance is a rule of customary international humanitarian law applicable in all situations of armed conflict.64As incommunicado detention is also prohibited under international humanitarian law applicable to all armed conflicts65 and to all persons who no longer take direct part in hostilities,66, detainees must be registered, provided an effective opportunity to immediately inform their family and a centralized information bureau of their detention and any subsequent transfer, and must be permitted ongoing contact with family members and others outside the place of detention.67 Article 5 of the Fourth Geneva Convention permits the detaining power to deny to persons these rights and privileges “where absolute military security so requires” when an individual found physically in the State’s own territory is “definitely suspected of or engaged in activities hostile to the security of the State”, or when an individual in occupied territory is “detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power”. While the article states that these persons “shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power”, ICRC stresses that article 5 may only be applied in individual cases of an exceptional nature, when the existence of specific charges makes it almost certain that penal proceedings will follow. Bare suspicion of hostile activities would not suffice; instead, it would have to be a definite suspicion of such activities. The burden of definite suspicion is a high burden that must be individualized and must not be of a general nature.68^ III. SECRET DETENTION PRACTICES IN PAST CONTEXTSThe emergence of the recent practice of secret detention The phenomenon of secret detention, closely intertwined with enforced disappearances, can be traced at least to the ^ Nacht und Nebel Erlaß of the Nazi Germany, the night and fog decree, according to which suspected resistance movement members could be arrested in occupied Europe and secretly transferred to Germany “under cover of night”.69These measures were intended to have a deterrent effect because detainees would vanish without leaving a trace and no information would be given as to their whereabouts or fate.70 An incipient form of these practices was, however, already well known in the former Soviet Union, with its Gulag71 system of forced-labour camps, first established under Vladimir Lenin during the early Bolshevik years. The Gulag system ultimately resulted in a vast penal network, including hundreds of camp complexes, which functioned throughout the State, many in Siberia and the Soviet Far East. The system was enhanced after 1928 under Joseph Stalin. Even though the above-mentioned practices were encompassed in a broader context of war or perpetuation of a state of terror, secret detention in the context of counter-terrorism is not a new phenomenon. Striking similarities can be identified between security measures in the 1970s and 1980s in the context of Latin America, but also other regions, such as northern Africa and South-East Asia, on the one hand, and the counter-terrorism measures adopted worldwide since 11 September 2001, on the other. The methods used then, as now, consist of, inter alia, broad emergency laws, the enhanced role of military and special courts, the practice of torture and/or ill-treatment, kidnappings (renditions), enforced disappearances and notably secret detention. The recent practice of secret detentionSecret detention in Latin America Secret detention in Latin America was closely linked to the widespread pattern of enforced disappearances. On the basis of the reports produced by various national truth and reconciliation commissions, in the 1970s and 1980s, patterns of secret detention were identified in, inter alia, Argentina, Brazil, Chile, El Salvador, Paraguay, Peru and Uruguay.72Thousands of Latin Americans were secretly kidnapped, tortured and killed by national security services. When these dictatorial regimes came to an end, some of the countries, on the basis of their archives, decided to prosecute former Government officials, as well as police and military officers. In other countries these attempts have long been hampered by impunity created as a result of, inter alia, amnesty laws or pardons. Latin American Governments justified practices of secret detention, among other exceptional measures, referring to the national security doctrine, which provided fertile ground for the creation of a repressive system by the military in which, in the name of security, human rights and fundamental freedoms were violated on a massive scale, and the rule of law and the democratic system damaged. The model was formulated in the 1940s, on the basis of French counter-insurgency concepts used in Algeria and Indochina. It was spread by the United States through the training of Latin American armies in “the school of the Americas”, located in Panama. Politically, the doctrine was strongly influenced by the bipolar cold war paradigm. It extended the notion of the alleged internal war against communism, which soon acquired a regional dimension. Practices of secret detention were first used against armed movements, later against left-wing groups, Marxist and non-Marxist, and ultimately against all groups suspected of political opposition. The latter were labelled as “subversives”, “terrorists” or “communists”. Practices of secret detention ran in parallel, at the national and regional levels. They were carried out by several governmental entities, which worked with little regulation and wide authority to interpret the few rules and regulations that did exist. Each entity had its own staff and facilities. Each organization worked in secrecy.73 The prime example of the regional scope of these practices is the Condor Operation, involving the exchange of intelligence information, and relying upon inter-state programmes of renditions.74The operation was endorsed by the Chilean National Intelligence Directorate (DINA), which operated as the main intelligence service engaged in political repression between 1974 and 1977. Among its different functions, it was responsible for running secret detention centres, where victims were interrogated and tortured.75 DINA soon began to work in Argentina, and later in other Latin American countries, the United States and Europe.76Similar intelligence services were established in Argentina, Paraguay and Uruguay, and integrated into a coordination network, closely linked to the United States.77 In Argentina, for instance, there were close to 500 secret detention centres, operating mainly on military or police premises.78Others were located in such diverse settings as hospitals, Government offices, automobile repair shops, schools, farms and even the basement of the upscale Galerias Pacifico in downtown Buenos Aires.79 The largest secret detention centres were the Navy Mechanics School (Escuela de Mecanica de la Armada) and the Club Atlético, a federal police facility, both in very visible Buenos Aires locations; the Campo de Mayo army base and Vesubio, a former summer residence, both in the province of Buenos Aires; La Perla, a military base in Córdoba Province; and La Cacha, located within the offices of the Penitentiary.80 Notwithstanding the fact that it was estimated that these facilities held some 14,500 detainees, the military authorities repeatedly denied the existence of secret detention centres.81 In Chile, torture methods were routinely practiced on all detainees held in secret facilities. Some of the secret detention facilities mentioned in the report of the Chilean National Commission on Truth and Reconciliation were Tejas Verdes, Cuatro Alamos, Londres No. 38, José Domingo Cañas, Villa Grimaldi, The Discotheques or La Venda Sexy, Casa Cajón del Maipo, la Firma, Simón Bolívar con la calle Ossandón, Nido 20 y Cuartel Venecia.According to information provided by the Government, the report of the National Commission on Political Prison and Torture of 2004 indicated that there were 1.132 places used for purposes of detention throughout the country. 82 The sites themselves were equipped with permanent installations for applying enhanced methods of interrogation and special personnel trained to use them. The guards were not the same as the officers who were in charge of interrogations, although the latter could take part in inflicting torture and indeed did so directly.83 For years there were secret detention sites to which officials of the judicial branch had no access. The courts did not act to remedy this unlawful situation or even to condemn it, despite continuous claims made in habeas corpus appeals.84This was compounded by the fact that, during the Pinochet regime, the authority to “arrest” included the authority to order solitary confinement. This, together with the lack of provisions requiring the disclosure of the place where a person was being held, facilitated the use of secret detention.85 In the late 1970s, during an on-site observation in El Salvador, a special commission86 verified the existence of a group of cells in which, according to claimants, several people were being detained in secret and tortured.87The Inter-American Commission on Human Rights received reports alleging that the authorities of El Salvador were holding individuals arbitrarily in secret places of the National Guard, the National Police and the Treasury Police.88 In Peru, the vast majority of more than 3,000 cases of disappearances reported to the Working Group on Enforced or Involuntary Disappearances occurred between 1983 and 1992 in the context of the Government’s fight against terrorist organizations, especially the Communist Party of Peru (Sendero Luminoso).89A number of cases of secret detention were examined by the Peruvian Truth and Reconciliation Commission.90 In Uruguay, many disappeared persons were reported to be held in clandestine detention centres, allegedly run by Argentine and Uruguayan military personnel.91The Inter-American Commission also received consistent reports of prolonged incommunicado detentions in the country during the 1970s and 1980s.92 These and other allegations of clandestine detention centres were later confirmed by the final report of the Peace Commission.93 More generally, during the 1970s and 1980s, Latin American Governments adopted legislation concentrating all powers in the executive branch, including decisions on detentions, their form and place. The legislation itself was in most cases extremely broad, providing for a vague definition of terrorism-related crimes, treated as political or ideological offences, and subject to disproportionate sanctions.94 The practice of secret detentions was also facilitated by the introduction of states of emergency, followed by repeated renewals or extensions and, in some cases by straightforward perpetuations.95States of emergency gave more powers to the military and provided room for discretion in the repressive measures against terrorism. In Uruguay, a state of emergency was declared in 1968 and extended until the end of the dictatorial period in 1985. In Paraguay, the state of siege lasted for 35 years, although the Constitution stipulated that it could only be declared for limited periods and subject to exceptional circumstances.96 In most of these countries, the practice