A/HRC/43/35 A. Extraterritorial secret detention 8. Secret detention has been defined as instances in which State authorities, or other agents whose actions or omissions are attributable to the State, detain a person while denying any contact with the outside world (incommunicado detention) and refuse to provide or actively conceal information about the fact that the person is detained or about the fate or whereabouts of the detainee.15 As noted in the joint study by special procedures, such detention has the inherent consequence of placing the detainee outside the protection of the law and amounts to a manifold human rights violation that cannot be justified under any circumstances, including during states of emergency.16 9. By effectively depriving detainees of the protection of the law, including the right to take proceedings before a court to review the lawfulness of the detention, a right that is essential to the protection of non-derogable rights,17 secret detention violates the right to personal liberty and security and the prohibition of arbitrary detention. 18 When used to circumvent criminal proceedings, secret detention further entails a violation of the right to a fair trial.19 In the joint study, it was concluded that every instance of secret detention also constitutes an enforced disappearance. This amounts to a grave and flagrant human rights violation20 characterized by a detention by the State, “followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.21 As such, it violates the right to recognition as a person before the law.22 Furthermore, the General Assembly and United Nations human rights mechanisms have found that secret detention facilitates the commission of acts of torture and may itself amount to torture or ill-treatment of the detainee 23 or of the family members on whom it inflicts suffering. 24 It may also entail violations of the protection of the family.25 10. While secret detention is prohibited in all circumstances, in practice the risk that a detainee may be deprived of the protection of the law and placed beyond the reach of the State’s courts is likely to increase in cases of extraterritorial secret detention. In addition to the human rights concerns detailed above, the Working Group on Enforced or Involuntary Disappearances has observed that extraterritorial detention by its very nature heightens the risk of disappearance and renders it especially difficult for detainees’ families and legal representatives to obtain information about their whereabouts or to secure remedies or reparations.26 B. Extraordinary rendition and comparable transfers 11. Some States have resorted to practices labelled “extraordinary renditions”, an expression not as such defined in international law, which has been used to describe the apprehension of a person often sponsored by one State in the territory of another State, with or without the latter State’s cooperation, and the subsequent extrajudicial transfer of the person from the territory in which the person was abducted to another State for detention 15 16 17 18 19 20 21 22 23 24 25 26 4 Ibid., para. 8. Ibid., paras. 17 and 36. Human Rights Committee, general comment No. 29 (2001) on derogations from provisions of the Covenant during a state of emergency, para. 13 (b). Human Rights Committee, general comments No. 29, para. 16, and No. 35, para. 67. International Covenant on Civil and Political Rights, art. 9 (1) and (4); Human Rights Committee, general comment No. 35, para. 46. A/HRC/13/42, paras. 18–19. A/HRC/13/42, paras. 24–27. International Covenant on Civil and Political Rights, arts. 9 (2)–(3) and 14. The fundamental requirements of a fair trial must be respected even during a state of emergency (Human Rights Committee, general comment No. 29, para. 16). A/HRC/13/42, para. 28; General Assembly resolution 47/133, para. 1; Human Rights Committee, general comment No. 35, para. 17. International Convention for the Protection of All Persons from Enforced Disappearance, art. 2. A/HRC/19/58/Rev.1, para. 42. General Assembly resolution 60/148, para. 11; Tharu and others v. Nepal (CCPR/C/114/D/2038/2011), para. 10.6; CAT/C/USA/CO/2, paras. 17–18. Human Rights Committee, Quinteros Almeida v. Uruguay, communication No. 107/1981, para. 14. International Covenant on Civil and Political Rights, arts. 17 (1) and 23 (1). A/HRC/42/40, paras. 46, 56, 69 and 92; A/HRC/39/46, para. 136.