A/HRC/16/47
48.
Paragraph 4 of article 75 of Protocol I reproduces most of the fair trial guarantees
provided for in international human rights instruments (International Covenant on Civil and
Political Rights art. 14; European Convention on Human Rights, arts. 5-6; American
Convention on Human Rights, art. 8). Indeed, as is noted in the ICRC commentaries, in
each of these treaties there is a clause permitting derogations from the articles in question in
time of war.18 However, article 75 is not subject to any possibility of derogation or
suspension and consequently it is these provisions which will play a decisive role in the
case of armed conflict. Besides, the provisions in all these instruments are more or less
equivalent.19
49.
Similarly, it is emphasised in the preamble to Additional Protocol II that
“international instruments relating to human rights offer a basic protection to the human
person.” In this regard, the ICRC notes that this provision establishes the link between
Protocol II and the international instruments on human rights.20
50.
The International Conference on Human Rights of 196821 established the
relationship between human rights and international humanitarian law. By adopting a
resolution on human rights in armed conflicts, which encouraged the development of new
rules, the Conference qualified humanitarian law as an extension of human rights and
included it amongst the matters of concern to the United Nations.22 The ICRC noted in this
regard that since then, the rules of international law on human rights, and in particular the
International Covenant on Civil and Political Rights, would be used as a point of reference
to bring into focus the fundamental guarantees given in Protocol II for the way in which
human beings should be treated.23 .
51.
In sum, there could be situations of armed conflict where State institutions,
including the judicial system, become dysfunctional. However, in general, the norms of the
international human rights law protecting individuals against arbitrary detention shall be
complied with by the Governments in situations of armed conflict. It is therefore
appropriate to have the alleged violations of these human rights norms considered by the
Working Group on Arbitrary Detention.
B.
Secret detention
52.
The joint study on global practices in relation to secret detention in the context of
countering terrorism (see para. 5 above), was prepared with the full participation of all four
experts on equal terms. They adopted all parts of the report jointly by consensus.
53.
In conducting the study, the experts worked in an open, transparent and consultative
manner with inputs from all relevant stakeholders, including the replies to a questionnaire
sent to all Member States of the United Nations. Several consultations were held with
States, and the experts shared their findings and relevant excerpts of States concerned
before finalizing the study. In addition to United Nations sources and responses to the
questionnaire from 44 States, primary sources included interviews conducted with persons
18
19
20
21
22
23
Ibid., para. 3092.
Ibid.
Ibid., para. 4427.
The first International Conference on Human Rights was held in Teheran from 22 April to 13 May
1968 to review the progress made in the 20 years since the adoption of the Universal Declaration of
Human Rights and formulate an agenda for the future.
ICRC Commentary on Protocol II, para. 4371.
Ibid.
17
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