HUMAN RIGHTS COMMITTEE HOLDS GENERAL DISCUSSION ON ARTICLE 9 ON THE RIGHT TO LIBERTY AND SECURITY OF PERSON
25 October 2012
The Human Rights Committee this afternoon held a public discussion in preparation for a new General Comment on Article 9 of the International Covenant on Civil and Political Rights on the right to liberty and security of persons, in which participants suggested that the General Comment included issues such as detention by non-State actors, detention in situations of armed conflict and in states of emergency, secret and incommunicado detention, detention in hospitals and detention of immigrants.
In his introductory remarks, Gerald Neuman, Committee Expert and Rapporteur for the General Comment on Article 9, said that this was the first general discussion held by the Committee on a general comment. The drafting of the General Comment on Article 9 was at its beginning and was quite urgent given the developments in the world affecting the right on liberty of persons and security of persons.
The Committee heard from a number of non-governmental organizations which said that it was important to draw attention in the General Comment to prolonged, secret and incommunicado detentions and to consider in the definition of the key terms further non-traditional or atypical forms of detention, such as detention by rebel groups or belligerent forces. It would be particularly useful to set out in detail the meaning of the Covenant on the permitted grounds for detention under Article 9, including during a declared state of emergency in accordance with Article 4, and the rights of detainees that could not be derogated even during a state of emergency.
Panellists also recommended that the Committee addressed the issue of protection under Article 9 in the context of international armed conflict and non-international armed conflict and the principle of non-refoulement, which was fundamental to prevent arbitrary deprivation of liberty. Special guarantees and measures for the protection that children should receive with regard to their right to liberty and security needed to be properly addressed, as did the rights of persons with disabilities in the context of detention and immigration detention which should not be used to bypass due process requirements of criminal justice systems or as a proxy for criminal pre-trial and post-trial detention.
The following non-governmental organizations took the floor as panellists: Amnesty International, Association for the Prevention of Torture, International Federation of Action by Christians for Abolition of Torture (FIACAT), Human Rights Watch, International Commission of Jurists, TRIAL, Child Rights International Network, International Disability Alliance and Advocates for Human Rights.
Other speakers in the open floor discussion were the International Committee of the Red Cross, Finland, Quaker United Nations Office and the International Rehabilitation Council for Torture Victims.
At the end of the meeting, the Committee continued the discussion on its working methods, taking up the issue of relationships with other actors in the preparation of General Comments.
The Human Rights Committee will next meet in public on Wednesday, 31st October at 4.45 p.m. when it will continue discussion on its working methods
GERALD NEUMAN, Committee Rapporteur for General Comment on Article 9, said that this was the first general discussion on a general comment held in this Committee. The drafting of the General Comment on Article 9 was at its beginning and the Committee looked forward to the input and comments in the discussion today. General Comments were very important in the working of the Committee and were used in internal deliberations and also in communicating its positions and decisions to the world. The General Comment on Article 9 was quite urgent given the developments in the world concerning the right on liberty of person and security of person.
Statements by Panellists (Panel A)
Amnesty International said that it would be important to draw the attention of States to the fact that prolonged, secret and incommunicado detentions were not acceptable and were conducive to acts of torture and ill treatment. Well known safeguards against enforced disappearances and torture must be looked at when examining State’s compliance on Article 1 of the International Covenant on Civil and Political Rights. Judicial mechanisms were important to detect and prevent unlawful detention, cases of torture and ill treatment and enforced disappearances and must be made easily accessible. The General Comment should also highlight: the state of emergency and that guarantees explicitly mentioned in Article 9 to prevent torture, ill-treatment and enforced disappearances were preserved at all times; the principle of non-refoulement, a fundamental principle to prevent arbitrary deprivation of liberty; the extraterritorial application of Article 9, for example in United Nations peacekeeping missions; and the length of police custody.
Association for Prevention of Torture invited the Committee to consider in the definition of the key terms further non-traditional or atypical forms of detention, such as detention for community or faith-based drug rehabilitation, residential care in privately run homes for the elderly or other vulnerable groups, detention by rebel groups or belligerent forces and others. The Committee should adopt a text which used broad language to explicitly include atypical forms of detention within the scope of the provision. The General Comments should consider that the procedural rights provided in Article 9 must necessarily end a period of incommunicado detention, physically remove the person from the control of the detaining authority, and be brought before an independent judicial authority. The Committee should adopt a position similar to that of the Human Rights Council concerning the right to habeas corpus, and reinforce the non-derogability of all Article 9 procedural safeguards.
International Federation of Action by Christians for Abolition of Torture said that international armed conflict in a number of countries was used as a cover under which a new wave of arbitrary detention had resurged, as was the case in North Kivu in the Democratic Republic of the Congo. In Côte d’Ivoire, faced with the judicial inertia, law enforcement officers decided to extend detention; in Senegal, those held in custody were often not informed that the detention was prolonged. The Committee should exhort the countries to put an end to arbitrary rest or release them and to provide a follow up to all cases of arbitrary detention.
Human Rights Watch said that the General Comment would be particularly useful in setting out in detail the meaning of the Covenant on the permitted grounds for detention under Article 9, including during a declared state of emergency in accordance with Article 4; the rights of detainees that could not be derogated even during a state of emergency; and the meaning of “promptly” under Article 9, including whether this changed during a state of emergency. The protection of Article 9 remained in effect during times of armed conflict, including armed conflict not of an international character and measures derogating from the Covenant were allowed under Article 4 only to the extent that the situation constituted a threat to the life of a nation. Immigration detention should not be used to bypass due process requirements of criminal justice systems or as a proxy for criminal pre-trial and post-trial detention. The General Comments should also address detention for the purposes of “treatment” or “rehabilitation”, detention in hospital settings and detention in prison.
International Commission of Jurists said that, in addition to considering Article 9 clause by clause, the Committee needed to address relevant specific thematic issues that affected the respect of Article 9. Those included: detention of immigrants, control orders as means of detention and the role and accountability of those running detention facilities. The International Commission of Jurists suggested that the Committee published the timeline and milestones for the adoption of the General Comment and shared them with the stakeholders in order to facilitate support for the work of the Committee.
TRIAL said that deprivation of liberty in official places of detention represented a violation of the articles of the Covenant and put detainees at direct risk from torture and ill-treatment; secret detention centres must not be justified under any circumstance, including in situations of armed conflict. Incommunicado detention should be made illegal as it was a violation of Article 9. States must provide for full and free access to persons in places of detention at all times.
In the ensuing discussion, Committee Experts asked the panellists about a possible legal approach to the linkages between international humanitarian law and the Covenant concerning detention by non-State actors; about interpretation of Article 9 in relation to armed conflict; and about detention in hospitals for non-payment of fees.
GERALD NEUMAN, Committee Expert, said that he hoped that the first draft would be available for the March session of the Committee and that the first reading would depend on the availability of the Committee and the time it had to spend on General Comments. He also hoped that the Committee would take a formal decision on the timeline after this general discussion.
Open floor discussion
International Committee of the Red Cross invited the Committee to discuss the issue of non-State actors with the International Committee of the Red Cross and cautioned that care must be taken as to how the issue of armed conflict and responsibility of non-State actor should be approached. International human rights law and international humanitarian law overlapped in many areas, including in the area of detention; the issue before the Committee was an area in which those two laws differed. Detention of combatants and persons who took direct participation in hostilities in international armed conflict was considered lawful by the international humanitarian law and that was why the law did not call for a judicial review of the process. Security detention in situations of non-international armed conflict was more problematic and the International Committee of the Red Cross had embarked on examining protection of detainees in these situations, including in extra-territorial armed conflicts that had mushroomed. Non-State armed groups were not directly bound by international treaties and many were not acting as a corollary to the State; suggesting that they be bound by Article 9 was pie in the sky and Governments would not look favourably at parallel legal systems. The Committee should very carefully examine whether to include detention in armed conflict and if so, examine the law very carefully.
International Rehabilitation Council for Torture Victims encouraged the Committee to examine the need for special procedures that applied to vulnerable groups such as asylum seekers and refugees.
Finland spoke on the issue of remanding in imprisonment and would provide a written statement in this regard. Finland was already taking measures to reduce time spent on remand and called on States to consider alternative measures.
International Commission of Jurists clarified that in their submission they referred to the responsibility of authorities and non-State actors running detention facilities.
NIGEL RODLEY, Committee Expert, noted the need for the International Committee of the Red Cross to take into serious account human rights machinery.
Statements by Panellists (Panel B)
Child Rights International Network said that the General Comment should properly highlight the special guarantees and measures of protection children should receive with regard to their right to liberty and security. The Committee should stress that any use of pre-trial detention of children be a measure of last resort, and in its General Comment highlight: the need for a child-friendly justice system that minimized the challenges children faced in each aspect of legal proceedings and ensured the rights and guarantees of fair trial; that children should not be detained because of their migrant status; and that children with mental health problems should not be systematically held in institutions.
International Disability Alliance said that disability-based detention, which might take place in psychiatric institutions, prisons, police stations, social care homes, and other locations, was discriminatory. Persons with disabilities in detention had the right to non-discrimination and the right to reasonable accommodation. The Committee should call on States to repeal legal provisions which allowed disability-based detention including institutionalization without free and informed consent of the individual concerned; to ensure the provision of reasonable accommodation for persons with disabilities in the context of arrest and detention; and to eliminate institutions and assist people living in them, and develop community based support and services to ensure that persons with disabilities enjoyed their right to liberty and the right to live in the community on an equal basis with others.
Advocates for Human Rights advocated for a change in the methods and process of drafting of General Comments to make them more public and accessible for victims and those who were in need for protection. Article 9 and its General Comment could be a life saving and immediate human rights saving device.
International Rehabilitation Council for Torture Victims said that it would be good to look into detention of refugees and asylum seekers.
GERALD NEUMAN, Committee Rapporteur for General Comment on Article 9, said in his closing remarks, that a recurrent theme had been a methodological one with regard to the relationship of Article 9 with a number of other international instruments, such as the Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and others. Questions were raised about the relationship with State Parties to those treaties and with regard to the relationship with the Geneva Conventions and between international human rights law and international humanitarian law. Participants also referred to the needs of vulnerable groups and how the rules of “ordinary” detention applied to those groups.
MICHAEL O’FLAHERTY, Committee Vice-Chaiperson, said in closing remarks that this half-day was an experiment which he found very enriching and valuable for the work of the Committee. The language of the General Comment would need to capture some of the situations brought to the attention of the Committee by the participants today.
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