CONCLUSIONS AND RECOMMENDATIONS A Conclusions

282. International law clearly prohibits secret detention, which violates a number of human rights and humanitarian law norms that may not be derogated from under any circumstances. If secret detention constitutes enforced disappearances and is widely or systematically practiced, it may even amount to a crime against humanity. However, in spite of these unequivocal norms, secret detention continues to be used in the name of countering terrorism around the world. The evidence gathered by the four experts for the present study clearly shows that many States, referring to concerns relating to national security - often perceived or presented as unprecedented emergencies or threats - resort to secret detention.

283. Resorting to secret detention effectively means taking detainees outside the legal framework and rendering the safeguards contained in international instruments, most importantly habeas corpus, meaningless. The most disturbing consequence of secret

detention is, as many of the experts’ interlocutors pointed out, the complete arbitrariness of the situation, together with the uncertainty about the duration of the secret detention and the feeling that there is no way the individual can regain control of his or her life.

284. A comparison of past and more recent practices of secret detention brings to the fore many common features, despite considerable variations in political and social contexts.

1. Emergency contexts

285. States of emergency, international wars and the fight against terrorism - often framed in vaguely defined legal provisions - constitute an “enabling environment” for secret

detention. As in the past, extraordinary powers are today conferred on authorities, including armed forces, law enforcement bodies and/or intelligence agencies, under states of emergency or global war paradigms either without or with very restricted control mechanisms by parliaments or judicial bodies. This thus renders many, or even all, of the safeguards contained in criminal law and required by international human rights law

489 _{“Zimbabwe: Jestina Mukoko - ‘Not bitter, but better’”, IRIN, 1 October 2009. Available} from www.irinnews.org/Report.aspx?ReportId=86392.

ineffective. In some States, protracted states of emergency and broadly defined conflicts against vaguely conceived enemies have tended to turn exceptional, temporary rules into the norm.

2. Intelligence agencies

286. In many contexts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions. Although intelligence bodies are not authorized by legislation to detain persons, they do so many times, sometimes for prolonged periods. In such situations, there are either no oversight and accountability mechanisms at all, or they are severely restricted, with limited powers, and hence ineffective.

3. International cooperation

287. From operation Condor in South America through to the global CIA network, secret detention has relied on systems of trans-border (regional or global) cooperation. This means that, in many instances, foreign security forces may operate freely in the territory of other States. It also leads to the mutual exchange of intelligence information between States, followed by its use for the purpose of detaining or trying the person before tribunals, the proceedings of which do not comply with international norms, often with reference to State secrets, making it impossible to verify how the information was obtained.490 A crucial element in international cooperation, be it in the methods of

operation Condor of the 1970s or the current policies of “extraordinary rendition”, is the transfer of alleged terrorists to other countries, where they may face a substantial risk of being subjected to torture and other cruel, inhuman and degrading treatment in

contravention of the principle of non-refoulement. Worse, in some cases, persons have been rendered to other countries precisely to circumvent the prohibition of torture and “rough” treatment. Practices such as “hosting” secret detention sites or providing proxy detention have, however, been supplemented by numerous other facets of complicity, including authorizing the landing of airplanes for refuelling, short-term deprivation of liberty before handing over the “suspect”, the covering up of kidnappings, and so on. With very few exceptions, too little has been done to investigate allegations of complicity.

288. While the experts welcome the cooperation extended by a number of States, including through the responses submitted by 44 of them to the questionnaire, they express their regret that, although States have the obligation to investigate secret detention, many did not send responses, and a majority of those received did not contain sufficient information. A lack of access to States’ territories also meant that a number of interviews had to be conducted by telephone or Skype, with those interviewed fearing being monitored.

490 _{A/61/259, paras. 44-65.}

4. Torture and cruel, inhuman and degrading treatment

289. Secret detention as such may constitute torture or ill-treatment for the direct victims as well as for their families. As many of the interviews and cases included in the present study illustrate, however, the very purpose of secret detention is to facilitate and,

ultimately, cover up torture and inhuman and degrading treatment used either to obtain information or to silence people. While in some cases elaborate rules have been put in place to authorize “enhanced” techniques that violate international standards of human rights and humanitarian law, most of the time secret detention has been used as a kind of defence shield to avoid scrutiny and control, as well as to make it impossible to learn about

treatment and conditions during detention.

5. Impact on other human rights and freedoms

290. The generalized fear of secret detention and its corollaries, such as torture and

ill-treatment, tends to effectively result in limiting the exercise of a large number of human rights and fundamental freedoms, including freedom of expression and freedom of

association. This fear often goes hand in hand with the intimidation of witnesses, victims and their families. Moreover, independent judiciaries and secret detention can hardly coexist; several examples identified by the experts indicated that the broader use of secret detention tends to lead to attempts to either influence or, worse, silence judges who take up cases of secret detention.

6. Witness protection and reparation

291. The experts are extremely concerned that many victims of secret detention from countries around the world indicated that they feared reprisals personally or against their families if they cooperated with the study and/or allowed their names to be used. The injustice done by secretly detaining somebody is prolonged and replicated all too

frequently once the victims are released, because the State concerned may try to avoid any disclosure about the fact that secret detention is practiced on its territory. In almost no recent cases has there been any judicial investigation into allegations of secret detention, and practically no one has been brought to justice. Although many victims feel that secret detention has “stolen” years of their lives (the experts learned about one anonymous case of 30 years) and left an indelible mark, often in terms of loss of their jobs and frequently their health, they have almost never received any rehabilitation or compensation.