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
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