A/HRC/27/48 respect to the duties on States where they have effective control and to acts by their agents abroad. International law does not accept “act of state” limitations on human rights obligations. In the interactive dialogue at the twenty-second session of the Human Rights Council, States gave general support for the conclusions of the deliberation. In its resolution 20/16, the Council encouraged all States to respect and promote the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before court, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful, in accordance with their international obligations, and requested the Working Group to prepare and present to it before the end of 2015 draft basic principles and guidelines on remedies and procedures relating to that right, with the aim of assisting Member States in complying therewith. Deliberation No. 9 has been cited as one source on the approach to identification of customary international law by Sir Michael Wood in his first (A/CN.4/663, para. 53) and second reports (A/CN.4/672, paras 41.8 and 76.6) on formation and evidence of customary international law submitted to the International Law Commission. 84. The Working Group has prepared a specific report on national, regional and international laws, regulations and practices on the right to challenge the lawfulness of detention before a court (A/HRC/27/47) and will hold a consultation with stakeholders on 1 and 2 September 2014 to solicit input on the draft basic principles and guidelines, with a view to presenting them to the Human Rights Council in 2015. 85. Judges should always be independent and impartial. In contrast, two of the core values of a military officer are obedience and loyalty to her or his supervisors. Under international law, military tribunals can only be competent to try military personnel for military offences. 86. Military courts should not try military officers if civilians have also been indicted in the case and if civilians are among the victims. All sentences issued by military courts should be reviewed by a civil court, even if they have not been appealed. Military courts should never be competent to impose the death penalty. V. Recommendations 87. The Working Group recommends that States: (a) Enforce and protect the right to liberty of every human being under customary international law; (b) Ensure that the guarantees available against arbitrary arrest and detention are extended to all forms of deprivation of liberty, including house arrest; re-education through labour; prolonged periods of curfew; detention of migrants and asylum seekers; protective custody; detention for rehabilitation or treatment; detention in transit areas; and border control checkpoints; (c) Ensure that persons are not held in pretrial detention for periods longer than those prescribed by law or proportionate, and that they are promptly brought before a judge; (d) Remedy arbitrary detention, mainly by immediate release and compensation as required by international human rights conventions and customary international law, and assist the Working Group in the follow-up to its opinions in individual cases. 24

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents