A/HRC/43/35
whereby established grounds and procedures for internment would be set out and made
public.
21.
The integrity of the judicial system is further at risk when States conduct
extraterritorial detentions inconsistent with the applicable domestic law of the host State.
This may occur, for instance, in cases of internment when the host State’s applicable law
does not permit administrative detention and only foresees detention in relation to the
criminal justice process, leading to a lack of clarity as to applicable legal regimes. This can
also be the case when detainees are transferred to the host State for criminal prosecution
after detention periods that exceed those permitted by the domestic criminal process or
without the collection of evidence, admissible before the courts of the host State, to support
criminal proceedings. Concerns may also arise when States detain extraterritorially in
contravention of their own domestic law, or when host States amend their legislation to
expand the scope of permissible detention beyond, or amend criminal procedures in a
manner incompatible with, international human rights law.
22.
In addition, in practice, procedural safeguards against the arbitrary deprivation of
liberty are often lacking in extraterritorial internment during armed conflict. These include
the failure to properly notify internees and their families of the reasons for internment or of
its expected duration; the absence of independent and impartial mechanisms for challenging
the grounds for internment and securing release when internment is not, or is no longer,
justified; and the failure to explain proceedings to detainees in a language they
understand.72
C.
Lack of integrity of the judicial system and human rights violations in
occupied territory
23.
Even when a legal basis exists or when grounds and procedures are established in
law, extraterritorial detention amounts to arbitrary deprivation of liberty when it does not
conform with these established grounds and procedures or when it is prolonged more than
necessary. 73 Examples include situations when a State, acting as an occupying power,
detains persons from an occupied territory without establishing that the interned persons
pose a present, direct and imperative threat that cannot be addressed by alternative
measures; when internment lasts indefinitely or longer than absolutely necessary; when
there is an absence of prompt and regular review by an independent and impartial tribunal,
with appropriate access to independent legal advice; and when there has been no disclosure
of, at least, the essence of the evidence on which the decision to detain was taken. 74
Arbitrary detention in occupied territory has also involved arrests carried out entirely
outside of any legal framework, combined with incommunicado detention and torture to
obtain information or extract confessions, as well as apparent cases of enforced
disappearances. 75 Such practices are, by their nature, flagrantly inconsistent with the
integrity of the judicial system.
24.
Furthermore, applicable due process and fair trial guarantees prescribed under
international human rights law and international humanitarian law have often been
disregarded by occupying powers. In some instances, an occupying power applied its own
domestic criminal legislation retroactively within an occupied territory,76 in contravention
of the principle of legality and despite the obligation to maintain the penal legislation that is
in force in the occupied territory and to apply it in court and the prohibition to arrest,
prosecute or convict protected persons for acts committed or opinions expressed prior to the
occupation.77 Persons prosecuted by the occupying power have also been pressured not to
72
73
74
75
76
77
CAT/C/USA/CO/3-5, para. 14; https://minusma.unmissions.org/malgr%C3%A9-la-mise-en%C5%93uvre-de-l%E2%80%99accord-pour-la-paix-la-situation-des-droits-del%E2%80%99homme-demeure; ICRC, “Strengthening legal protection”, p. 10.
Human Rights Committee, general comment No. 35, para. 15; Fourth Geneva Convention, art. 78 (1).
A/HRC/37/42, paras.17–18; CCPR/C/ISR/CO/4, para. 10; CAT/C/ISR/CO/5, paras. 22–23;
A/HRC/39/CRP.4, para. 30.
A/HRC/39/CRP.4, paras. 29 and 32–35.
Ibid., paras. 18–19; A/HRC/39/CRP.5, para. 109.
Fourth Geneva Convention, arts. 64, 67 and 70.
9
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents