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Secret detention is irreconcilable with international human rights law and international humanitarian law. It amounts to a manifold human rights violation that cannot be justified under any circumstances, including during states of emergency.

Secret detention violates the right to liberty and security of the person and the prohibition of arbitrary arrest or detention. Article 9, paragraph 1, of the International Covenant on Civil and Political Rights affirms that everyone has the right to liberty and security of person, that no one should be subjected to arbitrary arrest or detention nor be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. Furthermore, article 9, paragraph 4 of the Covenant stipulates that anyone deprived of their liberty by arrest or detention should be entitled to take proceedings before a court, in order that that court may decide, without delay, on the lawfulness of their detention and order their release if the detention is not lawful. The Human Rights Committee, in its general comment No. 8, highlighted that article 9, paras. 1 and 4, and para. 3, ICCPR as far as the right to be informed, at the time of the arrest, about the reasons therefore, are applicable to all deprivations of liberty, “whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc.”^¹⁰

The practice of secret detention in itself violates the above-mentioned guarantees, or in most cases, automatically or inherently entails such consequences that amount to a violation. As secret detainees are held outside the reach of the law, no procedure established by law is being applied to them as required by article 9 of the International Covenant on Civil and Political Rights (ICCPR). Even if a State authorized in its domestic laws the practice of secret detention, such laws would in themselves be in violation of the right to liberty and security and would therefore not stand. Secret detention without contact with the outside world entails de facto that the detainees do not enjoy the right enshrined in article 9, paragraph 4 of the Covenant, namely the possibility to institute habeas corpus, amparo, or similar proceedings, personally or on their behalf, challenging the lawfulness of detention before a court of law that is competent to order their release in the event that the detention is found to be unlawful.

The Working Group on Arbitrary Detention has classified secret detention as being per se arbitrary, falling within category I of the categories of arbitrary detention that it has developed. The Working Group qualifies deprivation of liberty as arbitrary in terms of category I when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.^¹¹In its opinion No. 14/2009^¹²concerning a case of detention unacknowledged by the Government at an undisclosed place of custody, the Working Group held that no jurisdiction could allow for incommunicado detention where no access to counsel or relatives was granted and no judicial control over the deprivation of liberty was exercised; in short, where no legal procedure established by law whatsoever was followed.^¹³

In its opinion No. 12/2006,^¹⁴the Working Group on Arbitrary Detention considered the deprivation of liberty of two individuals, one of whom was held at a secret place of detention, to be arbitrary under category I, as both had not been formally charged with any offence, informed of the duration of their custodial orders, brought before a judicial officer, allowed to name a lawyer to act on their behalf, nor otherwise been provided the possibility to challenge the legality of their detention.^¹⁵

Opinion No. 29/2006 of the Working Group on Arbitrary Detention^¹⁶concerned 26 individuals who were alleged to have been captured in various countries, partly handed over into the custody of the United States of America under its secret Central Intelligence Agency (CIA) rendition programme in the context of the so called “global war on terror”. They were held incommunicado at various “black sites” under the jurisdiction of the United States for prolonged periods of time, without charge or trial, access to courts of law, and without their families being informed or aware of their fate or whereabouts. In spite of the absence of a response by the Government of the United States to these allegations, the Working Group considered itself in a position to render an opinion on the cases of these 26 individuals, many of whom suspected of having been involved in serious crimes, and held that their detention clearly fell within category I of arbitrary detention.

In most cases, secret detention, as it is outside any international or national legal regime, also implies that the duration of detention is not known to the detainee; it rests at the sole discretion of the authorities ordering the detention. Hence, the very nature of secret detention may result in potentially, or actually, indefinite periods of detention, which render this type of detention arbitrary on this additional ground.^¹⁷