A/HRC/43/35 whereby established grounds and procedures for internment would be set out and made public. 21. The integrity of the judicial system is further at risk when States conduct extraterritorial detentions inconsistent with the applicable domestic law of the host State. This may occur, for instance, in cases of internment when the host State’s applicable law does not permit administrative detention and only foresees detention in relation to the criminal justice process, leading to a lack of clarity as to applicable legal regimes. This can also be the case when detainees are transferred to the host State for criminal prosecution after detention periods that exceed those permitted by the domestic criminal process or without the collection of evidence, admissible before the courts of the host State, to support criminal proceedings. Concerns may also arise when States detain extraterritorially in contravention of their own domestic law, or when host States amend their legislation to expand the scope of permissible detention beyond, or amend criminal procedures in a manner incompatible with, international human rights law. 22. In addition, in practice, procedural safeguards against the arbitrary deprivation of liberty are often lacking in extraterritorial internment during armed conflict. These include the failure to properly notify internees and their families of the reasons for internment or of its expected duration; the absence of independent and impartial mechanisms for challenging the grounds for internment and securing release when internment is not, or is no longer, justified; and the failure to explain proceedings to detainees in a language they understand.72 C. Lack of integrity of the judicial system and human rights violations in occupied territory 23. Even when a legal basis exists or when grounds and procedures are established in law, extraterritorial detention amounts to arbitrary deprivation of liberty when it does not conform with these established grounds and procedures or when it is prolonged more than necessary. 73 Examples include situations when a State, acting as an occupying power, detains persons from an occupied territory without establishing that the interned persons pose a present, direct and imperative threat that cannot be addressed by alternative measures; when internment lasts indefinitely or longer than absolutely necessary; when there is an absence of prompt and regular review by an independent and impartial tribunal, with appropriate access to independent legal advice; and when there has been no disclosure of, at least, the essence of the evidence on which the decision to detain was taken. 74 Arbitrary detention in occupied territory has also involved arrests carried out entirely outside of any legal framework, combined with incommunicado detention and torture to obtain information or extract confessions, as well as apparent cases of enforced disappearances. 75 Such practices are, by their nature, flagrantly inconsistent with the integrity of the judicial system. 24. Furthermore, applicable due process and fair trial guarantees prescribed under international human rights law and international humanitarian law have often been disregarded by occupying powers. In some instances, an occupying power applied its own domestic criminal legislation retroactively within an occupied territory,76 in contravention of the principle of legality and despite the obligation to maintain the penal legislation that is in force in the occupied territory and to apply it in court and the prohibition to arrest, prosecute or convict protected persons for acts committed or opinions expressed prior to the occupation.77 Persons prosecuted by the occupying power have also been pressured not to 72 73 74 75 76 77 CAT/C/USA/CO/3-5, para. 14; https://minusma.unmissions.org/malgr%C3%A9-la-mise-en%C5%93uvre-de-l%E2%80%99accord-pour-la-paix-la-situation-des-droits-del%E2%80%99homme-demeure; ICRC, “Strengthening legal protection”, p. 10. Human Rights Committee, general comment No. 35, para. 15; Fourth Geneva Convention, art. 78 (1). A/HRC/37/42, paras.17–18; CCPR/C/ISR/CO/4, para. 10; CAT/C/ISR/CO/5, paras. 22–23; A/HRC/39/CRP.4, para. 30. A/HRC/39/CRP.4, paras. 29 and 32–35. Ibid., paras. 18–19; A/HRC/39/CRP.5, para. 109. Fourth Geneva Convention, arts. 64, 67 and 70. 9