A/HRC/43/35 I. Introduction 1. In its resolution 37/3 regarding the integrity of the judicial system, the Human Rights Council requested the United Nations High Commissioner for Human Rights, in consultation with States, relevant United Nations agencies, special procedures, treaty bodies, non-governmental organizations and other relevant stakeholders, to submit a comprehensive study on the implications of the lack of integrity of the judicial system for human rights, in particular for persons kept in detention facilities outside the territory of States. The Council requested that the report be submitted at its forty-third session. 1 In preparing the report, contributions were sought from Member States and other relevant stakeholders.2 In addition, the High Commissioner draws on a range of public sources. 2. The integrity of the judicial system, together with its independence and impartiality, is an essential prerequisite to protecting human rights and fundamental freedoms, upholding the rule of law and democracy and ensuring that there is no discrimination in the administration of justice. All States must ensure that their obligations under international law, including international and regional human rights instruments to which they are party, are applied to every person kept in detention facilities under their jurisdiction, including when those facilities are situated abroad. The Human Rights Committee has stated that States parties to the International Covenant on Civil and Political Rights are required by article 2 (1) to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.3 3. In the present report, the High Commissioner examines different types of extraterritorial detention that may have an impact on the integrity of the judicial system with implications for human rights. These include extraterritorial detention by law enforcement and intelligence agencies, extraterritorial detention in armed conflicts and detention by third parties that States facilitate outside their territory. II. Impact on the integrity of the judicial system of extraterritorial detention outside of armed conflict 4. In the course of law enforcement, intelligence gathering and counter-terrorism operations outside of armed conflict, some States have sometimes resorted to detaining individuals outside their territory.4 Experience has shown that, in cases in which they act extraterritorially, States can be more prone to detain in a manner that falls short of their obligations under international human rights law, including requisite judicial guarantees and procedural safeguards. While some States have disputed the extraterritorial applicability of international human rights treaties 5 and opined that human rights protections established in domestic constitutional law are not necessarily applicable abroad,6 the International Court of Justice and human rights treaty bodies have affirmed that international human rights instruments apply to acts by a State in the exercise of its 1 2 3 4 5 6 2 Human Rights Council resolution 37/3, para. 15. Submissions were received from El Salvador, Italy, Jordan, Kyrgyzstan, Romania and the Russian Federation, as well as from the Ukrainian Parliament Commissioner for Human Rights, the United Nations Office on Drugs and Crime, Physicians for Human Rights and the At-sik-hata Nation of Yamassee Moors. General comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 10. See also general comments No. 35 (2014) on liberty and security of person, para. 63; and No. 36 (2018) on the right to life, para. 63. See, e.g., A/HRC/4/40, paras. 33, 35 and 37; A/HRC/42/40, para. 56; CAT/C/USA/CO/2, paras. 16– 17. See, e.g., CCPR/C/USA/4, para. 5; “Human Rights Committee, draft general comment No. 35: article 9: liberty and security of person – comments by the Government of Canada”, 6 October 2014, para. 7. Federal Court of Appeal, Amnesty International Canada v. Canada (Canadian Forces), Case No. [2009] 4 F.C.R. 149, 17 December 2008; High Court of Justice, Adalah Legal Center for Arab Minority Rights in Israel and others v. Minister of Defense and State of Israel, Case No. 8276/05 (2006), 12 December 2006, para. 22; Constitutional Court, Kaunda v. President of South Africa and others, Case No. CCT 23/04, 4 August 2004.