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