A/HRC/45/27 suspected of terrorism-related offences. 30 Those concerns include lengthy pretrial detention,31 torture and ill-treatment while in custody,32 the use of coerced confessions as evidence in courts, 33 restrictions to legal counsel, and the absence of judicial independence. 34 While sometimes reflecting more generalized challenges in law enforcement and the administration of justice, the impact of those deficiencies is particularly acute in the context of the prosecution of terrorist acts. 23. Some States seek to try suspects of terrorism-related offences in special, military or security courts. United Nations human rights mechanisms have raised concerns in relation to the compatibility of trials in such courts with the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. 35 According to the Human Rights Committee, trials of civilians by military or special courts should be exceptional, that is, limited to cases where the State can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials. The Committee also considers that, as a rule, civilians must not be tried for capital crimes before military tribunals.36 24. Another potential impediment to fairness is the invocation of State privilege or secrecy doctrines in court proceedings, when those doctrines operate to exclude relevant evidence on grounds such as endangering national security, therefore impeding comprehensive accountability for violations of international humanitarian and human rights law.37 Reliance on anonymous witnesses and classified information based on security or intelligence reports may also violate the right to an adequate defence when they are not independently corroborated or the evidence is made available only in essential substance to the accused.38 Pretrial investigations are also sometimes based on testimonies from secret informants whose reliability cannot be sufficiently assessed. In some countries, the results of such investigations are used in judicial proceedings as evidence. For example, in court hearings under the counter-terrorism framework in Iraq, judges frequently rely on statements by anonymous witnesses. Observations of such trials revealed no instances in which the defence counsel had the opportunity to challenge or refute such reports by crossexamining the anonymous witness or witnesses, or in which the judge took other measures to minimize the adverse impact of such anonymous statements on the right to a fair trial. 39 While witness protection is an important component of the proper administration of justice, equality of arms between the prosecution and the defence must also be appropriately maintained. 25. There are particular concerns when flawed procedures result in the imposition of the death penalty. The safeguards guaranteeing protection of the rights of those facing the death penalty, approved by the Economic and Social Council in its resolution 1984/50, continue to constitute minimum standards to be applied in States that still impose capital 30 31 32 33 34 35 36 37 38 39 For example, CCPR/C/NER/CO/2, para. 14. Several States, including Chad, France, Saudi Arabia, Tunisia and the United Kingdom of Great Britain and Northern Ireland, have extended pretrial detention periods for terror suspects. See Human Rights Watch, World Report 2017. See also CAT/C/NER/CO/1, paras. 9 and 15. A/HRC/43/46/Add.1, paras. 30–32; and CCPR/C/MRT/CO/2, para. 26. For example, A/HRC/28/69 and Corr.1, paras. 104–105. A/HRC/44/49/Add.1, para. 26. See also CCPR/C/MUS/CO/5, para. 27; and https://issafrica.s3.amazonaws.com/site/uploads/war-24.pdf. CCPR/C/PAK/CO/1, paras. 21–24; CCPR/C/JOR/CO/5, para. 26; CCPR/C/CMR/CO/5, para. 11; A/73/362, paras. 47 and 50; A/HRC/40/52/Add.2, paras. 30–31; and EGY 2/2018, pp. 4–5, available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. Human Rights Committee, general comments No. 36 (2018) on the right to life, para. 45, and No. 32, para. 22. Elizabeth Stubbins Bates, Terrorism and International Law: Accountability, Remedies, and Reform – A Report of the IBA Task Force on Terrorism (Oxford, Oxford University Press, 2011), pp. 185–188. A/HRC/43/46/Add.1, para. 38; and A/HRC/40/52/Add.2, para. 46. UNAMI and OHCHR, “Human rights in the administration of justice in Iraq”, p. 8. See also A/HRC/43/46/Add.1, para. 38. 7