A/HRC/16/47
who had been held in secret detention, family members of those held captive and legal
representatives of detainees. Flight data was also used to corroborate information.
54.
The legal assessment concluded that secret detention is irreconcilably in violation of
international human rights law, including during states of emergency and armed conflict.
Likewise, it is in violation of international humanitarian law during any form of armed
conflict. Secret detention violates the right to personal liberty and the prohibition of
arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of
their liberty in secret for potentially indefinite periods, held outside the reach of the law,
without the possibility of resorting to legal procedures, including habeas corpus. Secret
detainees are typically deprived of their right to a fair trial when State authorities do not
intend to charge or try them. Even if detainees are criminally charged, the secrecy and
insecurity caused by the denial of contact to the outside world and the fact that family
members have no knowledge of their whereabouts and fate violate the presumption of
innocence and are conducive to confessions obtained under torture or other forms of illtreatment. At the same time, secret detention amounts to an enforced disappearance. If
resorted to in a widespread or systematic manner, secret detention may even reach the
threshold of a crime against humanity. Every instance of secret detention is by definition
incommunicado detention. Prolonged incommunicado detention may facilitate the
perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and
may in itself constitute such treatment. Despite these unequivocal norms, secret detention
continues to be used in the name of countering terrorism around the world and has been
reinvigorated by the so-called global war on terror.
55.
The study is a valuable contribution in the field as it is not only a legal but factual
analysis on secret detention and makes concrete recommendations regarding this practice,
aimed at curbing the resort to secret detention and unlawful treatment or punishment of
detainees in the context of counter-terrorism. The full implementation of all these measures
is the only way to put an end to the unacceptable practice of secret detention and the range
of human rights violations that accompany it. The evidence gathered for this study
demonstrates that the time has come for States to unambiguously reaffirm, in law and in
practice, that secret detention will no longer be acceptable and neither will impunity for
such acts be acceptable.
56.
Most Member States were appreciative of the study presented at the Human Rights
Council’s fourteenth session and raised pertinent and incisive points for debate and also
sought ideas for further action and the way forward. The mandate holders made a number
of concrete recommendations, in particular requesting States to undertake rigorous enquiry
on secret detention within their jurisdictions.
IV.
Conclusions
57.
The Working Group, in the fulfilment of its mandate, welcomes the cooperation
it has received from States with regard to the responses by the Governments
concerned with regard to cases brought to their attention. During 2010, the Working
Group adopted 33 Opinions concerning 98 persons in 23 countries.
58.
The Working Group welcomes the invitations extended to it as well as the
cooperation on the part of the respective Governments. The Working Group
conducted two official visits in 2010, to Malaysia and the Republic of Armenia.
Among all the requested country visits, the Working Group has received invitations
by the Governments of Azerbaijan, Burkina Faso, Georgia, the Libyan Arab
Jamahiriya and the United States of America. The Working Group reiterates its belief
that its country visits are essential in fulfilling its mandate. For Governments, these
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