A/HRC/43/35
occupied territory.90 In other instances, detainees have been transferred to the custody of
another detaining authority without sufficient steps to ensure that they will not subsequently
be subjected to violations of their human rights.91 Consequently, detainees may not have
been afforded due opportunity to express their views as to the real risks of harm before they
were transferred, and transferring States may have been unaware of such risks. In some
cases, this has occurred when States conducted immediate handovers of detainees,
notwithstanding that the principle of non-refoulement applies to all detentions undertaken
by State actors, including detention of short duration.92
E.
Lack of accountability
29.
In some instances involving extraterritorial detention in armed conflict, there has
been a general lack of accountability for violations committed by State agents, creating a
climate of impunity and depriving victims of access to justice and remedy.93 Human rights
mechanisms have highlighted the limited number of investigations, prosecutions and
convictions of members of armed forces for violations committed in the context of
extraterritorial detention.94 In some instances, investigations have been found to have been
too slow, insufficiently independent and lacking in transparency. 95 In other instances, States
were not sufficiently forthcoming about the measures they had implemented to investigate
allegations that their armed forces had violated the rights of persons whom the State had
detained in armed conflicts abroad, about steps taken to hold accountable persons found
responsible for such violations or about reparations provided to victims. 96
IV. State-facilitated extraterritorial detention by third parties
30.
In addition to directly detaining individuals extraterritorially or transferring them for
extraterritorial detention, States at times facilitate or contribute to detentions outside their
territory carried out by other States or by non-State actors. This has occurred, for example,
when migrants and asylum seekers were intercepted en route to destination States, which
facilitated their detention in the territory of a third State,97 and when persons were subjected
to security detention by a third party over which the facilitating State exercised direction,
wielded control or exerted influence, or to whom it provided relevant support.98 Such cases
give rise to doubts as to the applicable judicial systems from which remedy can be sought,
with the risk that detainees may not have due recourse to the judicial systems of either the
facilitating State or the host State to challenge the legality of their detention or to seek
redress for human rights violations endured in detention. On a related point, there are
grounds for concern that such practices enable States to secure the extraterritorial detention
of persons without duly respecting or ensuring their rights and may result in a lack of
accountability for violations.
31.
According to the International Law Commission, actions of a non-State actor that is
a de facto organ of the State are considered an act of the State itself. 99 On the basis of that
approach, when persons are detained by a non-State actor, such as a private security
company that has been empowered or authorized by a State to do so, that State can remain
directly responsible for the detention and must ensure that it is conducted in accordance
90
91
92
93
94
95
96
97
98
99
See, e.g., A/HRC/34/36, para. 18;
www.ohchr.org/Documents/Countries/UA/28thReportUkraine_EN.pdf, para. 97.
See, e.g., CED/C/FRA/CO/1, para. 28; CAT/C/CAN/CO/6, para. 11.
Cordula Droege, “Transfers of detainees: legal framework, non-refoulement and contemporary
challenges”, International Review of the Red Cross, vol. 90, No. 871 (September 2008), p. 683.
A/HRC/39/CRP.4, paras. 3 and 7.
CCPR/C/USA/CO/4, para. 5.
CAT/C/GBR/CO/5, paras. 15–16; CCPR/C/GBR/CO/7, para. 9.
See, e.g., CAT/C/USA/CO/3-5, para. 13.
A/HRC/37/50, para. 7; CAT/C/AUS/CO/4-5, para. 17; CCPR/C/AUS/CO/6, para. 35;
CAT/C/ITA/CO/5-6, para. 22.
A/HRC/10/3, paras. 47–57; A/HRC/42/17, paras. 70 and 79.
Responsibility of States for internationally wrongful acts, art. 5 (General Assembly resolution 56/83,
annex).
11
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