A/HRC/43/35 jurisdiction outside its own territory.7 As detention conducted abroad brings the detained person within the State’s effective control, the detaining State must therefore ensure respect for the rights of the detainee emanating from international human rights treaties to which the State is a party and from otherwise applicable rules of international law. 8 The prohibitions of arbitrary deprivation of life, of torture and cruel, inhuman or degrading treatment, of arbitrary deprivation of liberty and of certain aspects of the right to a fair trial, constitute part of customary international law and, as such, must be respected by State agents wherever they territorially act. 9 Accordingly, States must not arbitrarily or unlawfully detain individuals nor may they subject persons outside their territory to, inter alia, prolonged incommunicado detention or deprive them of access to review of the lawfulness of their detention.10 5. While international human rights law does not foreclose the possibility of subjecting a person to non-criminal detention on security grounds, such as administrative detention or internment, such detention can entail serious risks of arbitrary deprivation of liberty. Such detention would amount to arbitrary detention where other less intrusive, effective measures addressing the threat, including the criminal justice system, are available. According to the Human Rights Committee, if, under exceptional circumstances, a present, direct and imperative threat is invoked to justify the detention of persons considered to present such a threat, the burden of proof lies on States parties to show that the individual poses such a threat and that it cannot be addressed by alternative measures.11 The burden to prove such justification rests with the detaining authority and increases with the length of the detention. Furthermore, the Committee has stated that the detaining authority must ensure that the detention will not last longer than absolutely necessary, that its overall length will be limited and that the right to challenge the lawfulness of the detention before a court will be respected in all cases. The prompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality as the judiciary is also deemed a necessary guarantee for those conditions, as is access to independent legal advice, preferably selected by the detainee, and the disclosure to the detainee of, at least, the essence of the evidence on which the decision is taken.12 6. The risk that extraterritorial detention entails human rights violations is compounded when detention is implemented by intelligence agencies, whose operations are, by their nature, rarely subject to effective judicial oversight and whose authority to detain and detention practices are not always adequately regulated by law. 13 In a joint study on global practices in relation to secret detention,14 five special procedure mandate holders stated that there was a heightened risk that extraterritorial detentions would be conducted without a legal basis or contrary to the principle of habeas corpus, or that detainees might be deprived of due process of law, of access to legal counsel and/or of an opportunity to challenge the legality of their detention before a court that is an integral part of the State’s judicial system. 7. Secret detentions and extraordinary renditions, two practices expressly mentioned by the Human Rights Council in its resolution 37/3, present specific challenges for the integrity of the judicial system when conducted by States operating outside their national territory. 7 8 9 10 11 12 13 14 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, paras. 108–113; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, para. 216. Human Rights Committee, general comment No. 31, para. 10; Committee against Torture, general comment No. 2 (2007) on the implementation of article 2, para. 16. A/HRC/22/44, para. 38; A/HRC/19/57/Add.2, para. 94; and Human Rights Committee, general comment No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to the declarations under article 41 of the Covenant, para. 8. Human Rights Committee, general comment No. 35, para. 63; CCPR/C/USA/CO/3, paras. 12 and 18. Human Rights Committee, general comment No. 35, para. 15. Ibid. A/HRC/13/42, para. 286. Ibid., paras. 98–164. 3