A/HRC/16/47
visits provide an excellent opportunity to show developments and progress in
detainees’ rights and the respect for human rights, including the crucial right not to
be arbitrarily deprived of liberty.
59.
Further to this, the Working Group considers that follow-up visits are of the
utmost importance. This was evident when the Working Group carried out its followup visit to China in September 2004. The Working Group requests the support of
Members States in facilitating follow-up visits.
60.
With respect to the application of international instruments on human rights to
situations of armed conflict, the Working Group believes that there are particular
instances of deprivation of liberty that fall within its mandate. This understanding is
premised on principles reiterated by the Human Rights Committee and further
supported by case law and opinion by the International Court of Justice. The Geneva
Conventions and its additional Protocols governing the ICRC and situations of armed
conflict also provide support to fundamental human rights as accepted in
international law and laid down in international instruments, and continue to apply
fully in situations of armed conflict. The International Covenant on Civil and Political
Rights applies in situations of armed conflict to which the rules of international
humanitarian law are applicable. The spheres of both international humanitarian law
and human rights law are complementary and not mutually exclusive.
61.
The Working Group notes the far-reaching impact of the joint study on secret
detention in the context of countering terrorism, particularly in relation to its
mandate and instances of arbitrary deprivation of liberty. Secret detention violates
the right to personal liberty. Detainees kept in secret are typically deprived of their
right to fair trial and possible legal recourse to fundamental remedies such as habeas
corpus.
62.
Finally, the Working Group considers it most useful to reiterate its concern
over the deprivation of liberty imposed arbitrarily, and the fact that a still
considerable number of persons are frequently unable to benefit from legal resources
and guarantees to which they are entitled for the conduct of their defence by law and
by applicable human rights instruments.
V.
Recommendations
63.
To enable the Working Group to report more systematically and
comprehensively, it reiterates its proposal to the Human Rights Council to expand the
mandate of the Working Group to include the examination of conditions of detention
around the world and the monitoring of States’ compliance with their obligations
concerning all human rights of detained and imprisoned persons. The mandates of the
Special Rapporteur on Prisons and Conditions of Detention in Africa and of the
Rapporteurship on the Rights of Persons Deprived of Liberty of the Inter-American
Commission on Human Rights might provide some guidance as to the scope of such an
extended mandate.
64.
In view of information of a serious nature received concerning reprisals
suffered by a judge who applied a Working Group’s Opinion and individuals subject
to urgent appeals or Opinions, States are urged to cease such practice.
65.
The Working Group recommends consideration of the argument put forth in
this report regarding the application of international instruments on human rights in
situations of armed conflict and that the application of international humanitarian
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