Despite the fact that international law clearly prohibits secret detention, the practice is widespread and “reinvigorated” by the so-called global war on terror, several independent United Nations experts stated, outlining a series of steps aimed at curbing this human rights violation.
In a 222-page study which will be presented to the UN Human Rights Council in March, the experts conclude that “secret detention is irreconcilably in violation of international human rights law including during states of emergency and armed conflict. Likewise, it is in violation of international humanitarian law during any form of armed conflict.
“If resorted to in a widespread or systematic manner, secret detention might reach the threshold of a crime against humanity,” add the authors – the UN experts on counter-terrorism and torture, and the two UN expert bodies on arbitrary detention and enforced or involuntary disappearances.
The study, which took almost a year to complete, involves responses from 44 States to a detailed questionnaire, as well as interviews with 30 individuals – or their family members or their legal counsel – who were victims of secret detention, and in many cases may also have been subjected to torture.
It provides an historical overview of the use of secret detention, noting that it is not a new phenomenon in the context of counter-terrorism. From the Nazi regime to the former USSR with its Gulag system of forced labour camps, States have often resorted to secret detention to silence opposition, according to the report.
The study goes on to address the use of secret detention in the context of the ‘global war on terror’ following the events of 11 September 2001, describing “the progressive and determined elaboration of a comprehensive and coordinated system of secret detention” of persons suspected of terrorism, involving not only United States authorities, but also other States in almost all regions of the world.
It also highlights that secret detention in connection with counter-terrorism policies remains a serious problem on a global scale, either through the use of secret detention facilities; through declarations of a state of emergency, which allow prolonged secret detention; or through forms of “administrative detention,” which also allow prolonged secret detention.
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.
“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 so-called global war on terror,” states the report, adding that many States, referring to national security concerns – often perceived or presented as unprecedented emergencies or threats – resort to secret detention.
Among their recommendations to address this serious human rights violation, the experts call for explicitly prohibiting secret detention, along with all other forms of unofficial detention. They also urged that safeguards for persons deprived of their liberty be fully respected, and that timely action be taken to ensure that immediate families of those detained are informed of their relatives’ capture, location, legal status and health condition.
The experts also point out that 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 indelible traces, often in terms of loss of their jobs and frequently their health, they almost never received any form of reparation, including rehabilitation or compensation.”
Therefore, the experts also recommend a number of steps to provide judicial remedies, reparations and rehabilitation to victims, and in some cases to their families.
The study was issued by the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin; Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention (represented by its Vice-Chairperson, Shaheen Sardar Ali); and the Working Group on Enforced or Involuntary Disappearances (represented by its Chairperson, Jeremy Sarkin).
Working in an independent and unpaid capacity, they all are appointed by, and report to, the Geneva-based Human Rights Council.