A/HRC/43/35
use independent legal counsel of their choice, 78 been denied access to legal counsel for
extended periods and been coerced into providing incriminating information. 79 In some
contexts, violations of due process rights have occurred during the arrest, transfer and
detention of children, including not being adequately notified of their legal rights, in
particular the rights to counsel and to remain silent, being forced to sign confessions in a
language they did not understand and not being accompanied by a parent or lawyer during
their interrogation.80
25.
Additionally, persons detained in occupied territory have endured unlawful
conditions of detention without obtaining protection from the judicial authorities and in a
manner compromising the judicial process. Detainees in occupied territory have been
subjected to torture and ill-treatment as a punishment or to extort confessions or obtain
specific information. 81 They have also been held in incommunicado detention or under
conditions amounting to cruel, inhuman or degrading treatment, and have been denied
access to medical care and deprived of food and water before court hearings. 82 Children
detained have likewise endured ill-treatment, including physical abuse during arrest and
interrogation, deprivation of adequate food and water and exposure to harsh weather
conditions during arrest and transfer to places of interrogation. 83 Detainees from other
vulnerable groups, such as the elderly and persons with disabilities, have also endured illtreatment.84
D.
Transfers
26.
International humanitarian law contains provisions regulating the transfer of
detainees in international armed conflict. With regard to prisoners of war and protected
persons detained in the State’s own territory, international humanitarian law permits
transfers for detention by another State only when the transferring State has satisfied strict
obligations to ensure that detainee protection will be maintained in full. This includes an
obligation on the transferring State to take effective measures to correct the situation if the
receiving State fails to provide the required protection, including a duty to request the
return of the detainees, a request that must be complied with. 85 With respect to protected
persons detained in an occupied territory, international humanitarian law mandates that they
be detained only in the occupied territory and prohibits forcibly transferring them outside
the occupied territory.86 The principle of non-refoulement in international human rights law
is equally applicable to such transfers to the authority of another State.
27.
While international humanitarian law does not contain specific rules on detainee
transfers in non-international armed conflict, 87 such transfers are subject to the general
principle of non-refoulement. Accordingly, the transferring State is obliged to conduct
assessments of relevant risks of irreparable harm and, where real risk exists, to sufficiently
address and mitigate it.88 When risk assessments indicate that the transfer would violate the
principle of non-refoulement, the State that detained extraterritorially is required to either
detain the individual on an alternative appropriate legal basis or to release the individual. 89
28.
In practice, detainees have been transferred despite these obligations. In some
instances, occupying powers have transferred protected persons for detention outside the
78
79
80
81
82
83
84
85
86
87
88
89
10
A/HRC/39/CRP.4, para. 21.
A/HRC/37/42, paras. 28–29.
A/73/907-S/2019/509, para. 86; www.unicef.org/sop/sites/unicef.org.sop/files/201912/Annual%20CAAC%20Bulletin%202018.pdf.
A/HRC/39/CRP.4, paras. 22–25.
Ibid., para. 26.
www.unicef.org/sop/sites/unicef.org.sop/files/2019-12/Annual%20CAAC%20Bulletin%202018.pdf.
A/HRC/39/CRP.5, para. 102.
Third Geneva Convention, art. 12 (2) and (3); Fourth Geneva Convention, art. 45.
Fourth Geneva Convention, arts. 49 (1) and 76 (1).
Arguably, however, common article 3 to the Geneva Conventions prohibits the transfer to another
State when there are substantial grounds to believe that it will result in ill-treatment or arbitrary
deprivation of life. See ICRC, Commentary on the First Geneva Convention, para. 708.
Committee against Torture, general comment No. 4, para. 18.
Ibid., para. 12; CAT/C/GBR/CO/5, para. 19.
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