A/HRC/13/36
intelligence agencies, including intelligence-gathering, covert surveillance activities,
searches and data collection must be regulated by law, monitored by independent agencies,
and subject to judicial review. The lack of transparency that prevails in a number of the
investigations and trials related to terrorism is a cause for concern. Through the adoption or
revival of State secrecy or immunity doctrines or the adoption of other measures to shield
intelligence, military or diplomatic sources and information, in the name of national
security interests, States have limited the access to the necessary information for an
effective investigation and prosecution of cases relating to acts of terrorism. States are
required to ensure that confined powers, review of accountability and oversight
mechanisms are established against the misuse of exceptional powers granted to
intelligence, military agencies or special police to counter terrorism. Such controls might
encompass the process or authorizing special powers and the remedies for people claiming
abuse of these powers. Controls can occur either before or after the use of powers.
29.
The Convention against Torture requires States parties to prevent, within their
territory, any acts of torture, or cruel, inhuman or degrading treatment.16 By virtue of the
extraterritorial application of the prohibition of such acts, and the obligations under
customary international law and Articles 55 and 56 of the Charter of the United Nations,
States must also ensure that their officials do not undertake such practices overseas and that
they are not complicit in such conduct by other persons. It is thus essential that those
responsible for conducting or colluding in interrogation techniques amounting to torture or
cruel, inhuman or degrading treatment are held accountable.17
30.
The practice of holding terrorist suspects in secret detention has led to the denial of
several rights of detainees, not only with respect to their rights associated with liberty, but
also for example their right to a fair trial. In such circumstances, where confessions are
extracted by torture and evidence gathered illegally through secret agents, the possibility of
bringing to justice people who are responsible for committing the above-mentioned
violations is unlikely. In its general comment No. 21 on article 10 of the International
Covenant on Civil and Political Rights, the Human Rights Committee imposes on States an
obligation to individuals who are vulnerable, such as juveniles, due to their status of
persons deprived of liberty to be treated with humanity and with respect for the inherent
dignity of the human person.
31.
Accountability and the right to effective remedies are connected to the right to a fair
trial as guaranteed by article 14 of the Covenant, clarified by general comment No. 32 of
the Human Rights Committee. Protecting the right of terrorist suspects to a fair trial is
critical not only for ensuring that anti-terrorism measures respect the rule of law, but also
for ensuring that perpetrators of human rights violations are held accountable. Indeed,
violations carried out in the execution of “extraordinary renditions” and collecting evidence
by illegal means are very unlikely to be adequately brought to light, and perpetrators
brought to justice, if suspects of terrorism are tried in special courts with special procedures
or sealed evidence which do not fully guarantee the right to a fair trial. Therefore, the
guarantees of a fair trial are essential to ensure accountability and to combat impunity, as
well as to provide effective remedies.18
32.
Article 10 of the International Covenant on Civil and Political Rights has a clear
relationship with the protection from torture, inhuman and degrading treatment and
punishment. Human Rights Committee general comment No. 21 clarifies that article 10
16
17
18
12
See CAT/C/USA/CO/2, para. 13, 2006; CAT/C/TGO/CO/1, para. 15, 2006; CAT/C/AUS/CO/3, para.
8, 2008.
See A/HRC/10/44/Add.2, para. 64.
Human Rights Committee, communication No. 1416/2005, Alzery v. Sweden.
GE.10-10442
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents