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II. SECRET DETENTION UNDER INTERNATIONAL LAW A. Terminology
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II. SECRET DETENTION UNDER INTERNATIONAL LAW




A. Terminology




  1. For the purpose of the present report, a person is kept in secret detention if State authorities acting in their official capacity, or persons acting under the orders thereof, with the authorization, consent, support or acquiescence of the State, or in any other situation where the action or omission of the detaining person is attributable to the State,1 deprive persons of their liberty; where the person is not permitted any contact with the outside world (“incommunicado detention”); and when the detaining or otherwise competent authority denies, refuses to confirm or deny or actively conceals the fact that the person is deprived of his/her liberty hidden from the outside world, including, for example family, independent lawyers or non-governmental organizations, or refuses to provide or actively conceals information about the fate or whereabouts of the detainee. In the present report, the term “detention” is used synonymously with “deprivation of liberty”, “keeping in custody” or “holding in custody”. The distinction drawn between “detention” and “imprisonment” in the preamble to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in its resolution 43/173, in the section entitled “Use of Terms”, does not purport to provide a general definition.2



  1. Secret detention does not require deprivation of liberty in a secret place of detention; in other words, secret detention within the scope of the present report may take place not only in a place that is not an officially recognized place of detention, or at an officially recognized place of detention, but in a hidden section or wing, which is itself not officially recognized; but also in an officially recognized site. Whether or not detention is secret is determined by its incommunicado character and by the fact that State authorities, as described in paragraph 1 above, do not disclose the place of detention or information about the fate of the detainee.



  1. Any detention facility may fall within the scope of the present study. It can be a prison, police station, governmental building, military base or camp, but also for example a private residence, hotel, car, ship or plane.



  1. Incommunicado detention, where the detainees may only have contact with their captors, guards or co-inmates, would amount to secret detention also if the International Committee of the Red Cross (ICRC) is granted access by the authorities, but is not permitted to register the case, or, if it is allowed to register the case, is not permitted by the State to, or does not, for whatever reason, notify the next of kin of the detainee on his or her whereabouts. In other words, access by ICRC alone, without it being able to notify others of the persons’ whereabouts, would not be sufficient to qualify the deprivation of liberty as not being secret. However, it is understood that ICRC, in principle, would not accept access to a detention facility without the possibility of exercising its mandate, which includes notification of the family about the whereabouts and fate of the detainee3. If ICRC access is granted within a week,4 it has been deemed sufficient to leave the case outside the scope of the present study. ICRC access to certain detainees may only be exceptionally and temporarily restricted for reasons of imperative military necessity in an armed conflict.5



  1. A case falls within the scope of the present study on secret detention in the name of counter-terrorism only if State authorities or persons acting under the orders, or with the authorization, consent, support or acquiescence of the State, or in any other way attributable to the State, detain secretly persons:

(a) Who have committed, or are suspected of planning, aiding or abetting, terrorist offences, irrespective of what classification of these offences is used by a Government;

(b) In any situation where terrorism or related notions (such as extremism or separatism)6 are used to describe or justify the context in, or basis upon, which a person has been detained;

(c) In any situation where extraordinary detention powers or procedures are triggered (under notions such as anti-terrorism acts, states of emergency or national security acts).

  1. The qualification by States of certain acts as “terrorist acts” is often aimed at applying a special regime with limited legal and procedural safeguards in place. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed concern that the absence of a universal and comprehensive definition of the term of “terrorism”, leaving it to individual States to define it carries the potential for unintended human rights abuses and even deliberate misuse of the term. He added that “it was essential to ensure that the term “terrorism” is confined in its use to conduct that is of a genuinely terrorist nature.”7 The Working Group on Arbitrary Detention also noted with concern the frequent attempts by Governments to use normal legislation or to have recourse to emergency or special laws and procedures to combat terrorism and thereby permit, or at least increase, the risk of arbitrary detention. It added that such laws, either per se or in their application, by using an extremely vague and broad definition of terrorism, bring within their fold the innocent and the suspect alike, and thereby increase the risk of arbitrary detention, disproportionately reducing the level of guarantees enjoyed by ordinary persons in normal circumstances. Legitimate democratic opposition, as distinct from violent opposition, becomes a victim in the application of such laws.”8 Examples of such a type of criminal offence couched in broad terms relate to the subversion of State powers or simply anti-subversion laws”9. Such attempts to circumvent the guarantees of applicable international human rights law inform a broad approach as to the scope of the present study of what constitutes secret detention in the context of countering terrorism.



  1. Organized crimes, such as drug or human trafficking, are not covered by the study unless anti-terrorism legislation is invoked. Whether the State has conferred on the case a link to terrorism may have to be inferred from elements uttered by State officials or if the person is later prosecuted on terrorism-related charges.



  1. Detention by non-State actors, when not attributable to the State, will not be addressed in the present study. Hence, hostage-taking, kidnapping or comparable conduct by terrorists, criminals, rebels, insurgents, paramilitary forces or other non-State actors do not fall within the ambit of the report, which focuses on secret detention by or attributable to States and is addressed to the Human Rights Council as an intergovernmental body.



  1. Victims of the human rights violation of secret detention are not only the detainees themselves, but also their families who are not informed of the fate of their loved ones deprived of their rights and held solely at the mercy of their captors.