Secret detentions widespread in war on terror, say experts

In spite of the fact that it is a clear violation of international human rights and humanitarian law, secret detention continues to be used in the name of combating terror around the world.

Kanaga Raja

IN spite of the fact that international law clearly prohibits secret detention, the practice of secret detention in the context of countering terrorism is widespread, and has been re-invigorated by the so-called global war on terror, UN experts have said in a wide-ranging study on States' use of secret detention in connection with counter-terrorism activities.

The joint study was conducted by Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, and Manfred Nowak, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Also participating in the study were 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).

According to the UN experts, the evidence gathered by them 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.

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 practised, it may even amount to a crime against humanity.

The 222-page joint study, released on 26 January, while stressing that it is 'not exhaustive', lists a total of 66 States. Some are mentioned in the context of a historical analysis of secret detention practices prior to 11 September 2001, but most are in connection with secret detentions and related activities, including so-called 'proxy detention' and 'rendition' or 'extraordinary rendition', over the past nine years of the 'global war on terror'.

In addition to UN sources and responses from 44 States to a detailed questionnaire sent out by the report's authors, primary sources for the joint study included interviews conducted with those who were held in secret detention, family members of those held captive, and legal representatives of detainees. Flight data was also used to corroborate information.

Complete arbitrariness

The UN experts, who will present their study to the UN Human Rights Council session in March, 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.'

Secret detention, says the experts' study, effectively takes people outside the legal framework and renders the safeguards contained in international instruments, including habeas corpus, 'meaningless'.

As many of the experts' interlocutors pointed out, the most disturbing consequence of secret detention is the complete arbitrariness of the situation, together with the uncertainty about the duration of the secret detention - the feeling that there is no way the individual can regain control of his/her life.

The study notes that 'in spite of these unequivocal norms (under international human rights and humanitarian laws), secret detention continues to be used in the name of countering terrorism around the world.'

According to the joint study, secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods as they are held outside the reach of the law without the possibility to resort to legal procedures, including habeas corpus.

Secret detainees are typically deprived of their right to a fair trial as State authorities do not intend to charge or try the detainee. Even if the detainees are criminally charged, the secrecy and insecurity caused by a denial of contact to the outside world and the unawareness of the family about their whereabouts and fate violate 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 enforced disappearance. If resorted to in a widespread or systematic manner, secret detention might reach the threshold of a crime against humanity.

The experts stress that every instance of secret detention is by definition incommunicado detention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute such treatment. The suffering caused to family members of a secretly detained, i.e. disappeared person, may also amount to torture or other forms of ill-treatment, and at the same time violates the right to the protection of family life.

The experts further stress that it is not only States whose authorities keep the detainee in secret custody that are internationally responsible for violations of international human rights law. The practice of 'proxy detention', involving the transfer of a detainee from one State to another outside the realm of any international or national legal procedure (known as 'rendition' or 'extraordinary rendition'), often in disregard of the principle of non-refoulement, also involves the responsibility of the State at whose behest the detention takes place.

'The Geneva Conventions, applicable to all armed conflicts, also prohibit secret detention under any circumstances.'

Legal  vacuum

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, say the UN experts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions. Many times, although legislation does not authorise intelligence bodies to detain persons, they do so, sometimes for prolonged periods. In such situations, there are either no oversight and accountability mechanisms at all, or they are severely restricted, with limited powers and hence ineffective.

The experts draw attention to the fact 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.

'This serious human rights violation deserves therefore appropriate action and condemnation,' stress the experts.

The joint study provides a historical overview of the use of secret detention, saying that secret detention in the context of counter-terrorism is not a new phenomenon. It cites examples ranging from the night and fog decree of the Nazi regime, to the former USSR with its Gulag system of forced-labour camps, and notes that States have often resorted to secret detention to silence opposition.

Striking similarities can also be identified between security measures in the 1970s and 1980s in the context of Latin America and in the last century in other regions such as Africa, Asia, Europe, and the Middle East.

The methods used then as now consist inter alia of 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 aim is always the same: 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.

One section of the study addresses the use of secret detention in the context of the so-called 'global war on terror' in the post-11 September 2001 period, describing the progressive and determined elaboration of a comprehensive and coordinated system of secret detention of persons suspected of terrorism, involving not only the US authorities, but also other States in almost all regions of the world.

Recommendations

The joint study makes a series of recommendations that cover both law and practice, and are designed to improve transparency and accountability, as well as to provide judicial remedies, reparations and rehabilitation to victims, and in some cases to their families.

The experts recommend amongst others that 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, including the number of detainees, their nationality, and the legal basis on which they are being held, whether as prisoners of war or civilian internees). In times of armed conflict, the location of all detention facilities should be disclosed to the International Committee of the Red Cross.

Safeguards for persons deprived of their liberty should be fully respected. In particular, effective habeas corpus reviews by independent judicial bodies are central to ensuring respect for the right to personal liberty.

The experts also recommend that any action by intelligence services should be governed by law, which in turn should be in conformity with international norms. To ensure accountability in intelligence cooperation, truly independent intelligence review and oversight mechanisms should be established and enhanced.

Victims of secret detention should be provided with judicial remedies and reparation in accordance with relevant international norms. These international standards recognise the right of victims to adequate, effective and prompt reparation which should be proportionate to the gravity of the violations and the harm suffered.

The experts further recommend that States ratify and implement the International Covenant on Civil and Political Rights and the Convention against Torture. Given that the Optional Protocol to the Convention against Torture (OPCAT) requires the setting up of monitoring systems covering all situations of deprivation of liberty, adhering to this international instrument adds a layer of protection.                                           

Kanaga Raja is the Editor of the South-North Development Monitor (SUNS). This article is reproduced from SUNS (No. 6851, 28 January 2010), which is published by the Third World Network.

*Third World Resurgence No. 234, February 2010, pp 36-37