87. The United Nations has paid increasing attention to the issue of secret detention and its relation to enforced disappearances since 1978, in the context of denunciations by numerous non-governmental organizations and widespread concerns with human rights situations in Chile, Cyprus and Argentina. The Inter-American Commission on Human Rights was one of the first international human rights bodies to respond to the phenomenon of enforced disappearances and secret detentions during the 1970s, both in general terms and with regard to specific cases in Chile since the military coup d’état of 11 September 1973.147
88. In 1978, the General Assembly, deeply concerned by reports from various parts of the world relating to enforced or involuntary disappearances of persons as a result of excesses on the part of law enforcement or security authorities or similar organizations, adopted a resolution dealing specifically with disappeared persons and requested the Commission on Human Rights to make appropriate recommendations.148 On 6 March 1979, the Commission established a mandate for experts to study the question of the fate of missing and disappeared persons in Chile. In his report, Felix Ermacora, the expert in charge of the study, proposed, inter alia, a number of preventive measures, such as the prohibition of secret places of detention, the maintenance of a central register of arrest and detention, the right of civilian judges to visit all places of
detention.149
89. Subsequently, the Economic and Social Council, in its resolution 1979/38, requested the Commission on Human Rights to consider, as a matter of priority, the question of disappeared
144 European Court of Human Rights, Lütfi Celul Karabardak and others v. Cyprus, application no. 76575/01, and Baybora and Others v. Cyprus, application no. 77116/01, admissibility decisions of 22 October 2002.
145 European Court of Human Rights, Cyprus v. Turkey, application 25781/94, judgement of 10 May 2001.
146
European Court of Human Rights, Varnava v. Cyprus, applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, judgement of 18 September 2009.
147 Wilder Tayler, “Background to the elaboration of the draft international convention for the protection of all persons from forced disappearance”, ICJ Review No. 62-63, September 2001, p. 63.
148
General Assembly resolution 33/173. 149 A/34/583/Add.1, paras. 193-197.
persons, with a view to making appropriate recommendations at its thirty-sixth session. It also requested the Subcommission on Prevention of Discrimination and Protection of Minorities to consider the subject with a view to making general recommendations to the Commission at its intervening session.
90. In its resolution 5 B (XXXII), the Subcommission pointed out that the danger involved for such disappeared persons warranted urgent reaction on the part of all individuals and institutions, as well as of Governments.150 It considered the question of enforced and involuntary
disappearances at its thirty-fourth session; on 10 September 1981, it adopted resolution 15
(XXXIV), in which it reiterated, inter alia, the right of families to know the fate of their relatives, and strongly appealed for the reappearance of all detainees held in secret detention.151
91. In 1980, the Commission on Human Rights, in its resolution 20 (XXXVI), created a working group to examine questions relevant to enforced or involuntary disappearances of persons.The same year, the General Assembly, in its resolution 35/193, welcomed the establishment of the groupand appealed to all Governments to cooperate with it.
92. The Subcommission decided, in its resolution 1983/23, that, at its next session, it would prepare a first draft of a declaration against unacknowledged detention of persons, whatever their condition.152 In 1984, a first draft was discussed in the Subcommission’s Working Group on Detention, as a result of which the Subcommission, in its resolution 1984/3, requested the Working Group to submit a revised draft declaration to the Subcommission at its thirty-eighth session.153 The purpose of the draft was to provide for a commitment that Governments (a) disclose the identity, location and condition of all persons detained by members of their police, military or security authorities acting with their knowledge, together with the cause of such detention; and (b) seek to locate all other persons who have disappeared. In countries where legislation did not exist to this effect, steps should be taken to enact such legislation as soon as possible. However, the resolution was not adopted by the Commission on Human Rights in 1985, and was referred back to the Subcommission for reconsideration.154
93. Following the 1988 session of the Working Group on Detention, a draft declaration on the protection of all persons from enforced or involuntary disappearances was proposed and,
following amendments by the intersessional working group, was adopted first by the Commission on Human Rights in its resolution 1992/29, then in the same year by the General Assembly in its resolution 47/133.
150 See E/CN.4/1350.
151 Official Records of the Economic and Social Council, Supplement No. 3 (E/1982/12). 152
E/CN.4/1984/3.
153 Resolution 1984/13; E/CN.4/1985/3, E/CN.4/Sub.2/1984/43, chap. XVIII A. 154 Commission on Human Rights decision 1986/106.
94. Ever since, the Commission continuously called upon its special rapporteurs and working groups to give special attention to questions relating to the effective protection of human rights in the administration of justice, in particular with regard to unacknowledged detention of
persons, and to provide, wherever appropriate, specific recommendation in this regard, including proposals for possible concrete measures under advisory services programmes.155
95. In 1988, in its resolution 43/173, the General Assembly adopted the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.This was the result of a long-standing process of ascertaining detainees’ rights that had begun under the
Subcommission on Prevention of Discrimination and Protection of Minorities.156 This instrument provides for the application of a set of safeguards while in detention, compliance with which in principle would avoid or substantially decrease the likelihood of threat to life and limb of detainees.157 The adoption of the document served as an incentive for the elaboration of complementary regional instruments, such as the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa,158 adopted by the African Commission on Human and Peoples’ Rights in its resolution 61 (XXXII) 02 (2002), and the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas,159 of the Inter-American Commission on Human Rights.
96. Other instances have contributed to outlawing practices of secret detention. As early as 1978, the Human Rights Committee received the first communication under the Optional Protocol relating to a disappearance and secret detention case in Uruguay. The case concerned a certain Mr. Bleier, suspected of being connected with the subversive activities of the banned Communist Party, who had been arrested by that country’s authorities without a court order in October 1975 and was being held incommunicado at an unknown place of detention.160 The
155 See for example Commission resolution 1992/31 on human rights in the administration of justice. See also the report of the Special Rapporteur on torture (E/CN.4/1993/26).
156 Since 1973, the Subcommission had an item on its agenda entitled “Question of the human rights of persons subjected to any form of detention or imprisonment”. See
E/CN.4/Sub.2/SR.677, pp. 123-129. See generally Kathryn Jean Burke, “New United Nations procedure to protect prisoners and other detainees” California Law Review, vol. 64, No. 1
(January 1976), p. 205; and Daniel Prémont, “United Nations procedures for the protection of all persons subjected to any form of detention or imprisonment”, Santa Clara Law Review, vol. 20, No. 3 (1980), p. 603.
157 Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law, Third ed., Oxford University Press, 2009, p. 451.
158
Also known as Robben Island Guidelines. 159
OEA/Ser/L/V/II.131, doc. 26 (March 2008). 160
Committee found that the Government of Uruguay was in breach of articles 7, 9 and 10.1 of the International Covenant on Civil and Political Rights.
97. A decisive moment in the long-standing process of outlawing practices of secret detention was the adoption of the International Convention on the Protection of All Persons from Forced Disappearance, which has been open for signature and ratification since 6 February 2007.161 This process started in 2001, when the Commission on Human Rights requested a study to identify any gaps in the existing international criminal and human rights framework with a view to drafting a legally-binding normative instrument for the protection of all persons from enforced disappearance.162 On the basis of the study prepared by an independent expert on the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances,163 and with his assistance, the Commission drafted the
International Convention on the Protection of All Persons from Forced Disappearance, the final text of which was adopted by the Human Rights Council in its resolution 2006/1. The
Convention contains elements necessary for filling the gaps in the framework of the current protection against enforced disappearances and secret detentions.
IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001
98. In spite of the prominent role played by the United States of America in the development of international human rights and humanitarian law, and its position as a global leader in the protection of human rights at home and abroad following the terrorist attacks on New York and Washington, D.C. on 11 September 2001, the United States embarked on a process of reducing and removing various human rights and other protection mechanisms through various laws and administrative acts, including the Authorization for Use of Military Force,164 the USA Patriot Act of 2001, the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (which sought to remove habeas corpus rights), as well as various executive orders and memoranda issued by the Office of Legal Counsel that interpreted the position of the United States on a
161
General Assembly resolution 61/177.
162 Commission on Human Rights resolution 2001/46. 163
E/CN.4/2002/71.
164 “Joint Resolution: To authorize the use of United States Armed Forces against those
responsible for the recent attacks launched against the United States”, 17 September 2001. This authorized the President “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
number of issues, including torture. It also sanctioned the establishment of various classified programmes much more narrowly than before.165
99. The Government of the United States declared a global “war on terror”, in which
individuals captured around the world were to be held neither as criminal suspects, put forward for federal court trials in the United States, nor treated as prisoners of war protected by the Geneva Conventions, irrespective of whether they had been captured on the battlefield during what could be qualified as an armed conflict in terms of international humanitarian law. Rather, they were to be treated indiscriminately as “unlawful enemy combatants” who could be held indefinitely without charge or trial or the possibility to challenge the legality of their detention before a court or other judicial authority.
100. On 7 February 2002, the President of the United States issued a memorandum declaring that “common article 3 of Geneva does not apply to either Al-Qaida or Taliban detainees”, that “Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under article 4 of Geneva”, and that “because Geneva does not apply to our conflict with Al-Qaida, Al-Qaida detainees also do not qualify as prisoners of war”. This unprecedented departure from the Geneva Conventions was to be offset by a promise that, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”.166 This detention policy was defended by the Government in various submissions to the United Nations,167 including on 10 October 2007, when the Government stated that the law of war, and not the International Covenant on Civil and Political Rights, was the applicable legal framework governing the detentions of “enemy combatants”,168 and therefore such detentions did not fall within the mandate of the special procedures mandate holders.169 101. By using this war paradigm, the United States purported to limit the applicable legal framework of the law of war (international humanitarian law) and exclude any application of human rights law. Even if and when human rights law were to apply, the Government was of the view that it was not bound by human rights law outside the territory of the United States.
Therefore, by establishing detention centres in Guantanamo Bay and other places around the world, the United States was of the view that human rights law would not be applicable there. Guantanamo and other places of detention outside United States territory were intended to be outside the reach of domestic courts for habeas corpus applications by those held in custody in
165 A/HRC/6/17/Add.3, para. 3. 166
Memorandum from the President on the humane treatment of Taliban and Al-Qaida
detainees, 7 February 2002, www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf. 167 See for example CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3; A/HRC/4/41, paras. 453 - 455; and A/HRC/4/40, para. 12.
168
CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3.
those places.170 One of the consequences of this policy was that many detainees were kept secretly and without access to the protection accorded to those in custody, namely the protection of the Geneva Conventions, international human rights law, the United States Constitution and various other domestic laws.
102. The secret detention policy took many forms. The Central Intelligence Agency (CIA) established its own secret detention facilities to interrogate so-called “high value detainees”. It asked partners with poor human rights records to secretly detain and interrogate persons on its behalf. When the conflicts in Afghanistan and Iraq started, the United States secretly held persons in battlefield detention sites for prolonged periods of time. The present chapter therefore focuses on various secret detention sites and those held there, and also highlights examples of the complicity of other States.
A. The “high-value detainee” programme and CIA secret detention facilities