Council failing to follow up joint study on secret detention


The much anticipated joint study on secret detention was presented to the Human Rights Council on 2 June 2010 with an interactive dialogue following on 3 June.


The much anticipated joint study on secret detention was presented to the Human Rights Council on 2 June 2010 with an interactive dialogue following on 3 June. The study (A/HRC/13/42) was written by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Vice Chair of the Working Group on Arbitrary Detention; and the Chair of the Working Group on Enforced or Involuntary Disappearances. Of these, Ms Sardar Ali and Mr Martin Scheinin were present at the interactive dialogue.

The report had been highly contested, with many States clearly unhappy with the initiative of these mandate holders to work on this issue. It had initially been scheduled for consideration at the 13th session, but was blocked on grounds that the first priority for the Council was the report that they had requested from the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on 'good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism'. Some States argued that requested reports should take priority over reports drafted at the initiative of the mandate holders. This issue was raised again during the interactive dialogue, with Algeria, the Russian Federation and Uruguay making reference to it.

China was concerned that the mandate holders had chosen to embark upon the joint study without being authorised to do so by the Council, and argued that this was in breach of the Code of Conduct of the Special Procedures. Ms Sardar Ali emphasised that she saw such collaborative efforts as a useful way forward for the Council, preventing duplication and assuring a more holistic approach to the protection and promotion of human rights. In this respect she was backed by Chile, Japan and Switzerland.

However the majority of points raised by States during the debate concerned the methodology adopted for the report. The Russian Federation stated that the use of anonymous information was in breach of the Code of Conduct, since it did not allow States to investigate those complaints. Similar complaints or comments about the use of 'biased or unsubstantiated sources' were made by Algeria, Canada, Ethiopia, the EU, Nepal, Nigeria on behalf of the African Group, Pakistan, Romania, the Russian Federation, Sri Lanka, Syria, the UK and the USA. Many of these States used these methodological concerns as a means of denying specific cases brought up in the report.

Algeria made reference to section 8c of the Code of Conduct, which requires the special procedures to 'rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up'. However, section 8b of the Code of Conduct requires special procedures not to name individuals where to do so would place those individuals in danger. Ms Sardar Ali drew attention to the fact that a lack of effective witness protection schemes meant that many individuals were unwilling to speak with the mandate holders for fear of reprisals. The only way in which to access information under those conditions was precisely by preserving anonymity. Both Mexico and Switzerland commended the use of these individual cases as adding value to the report.

Other States complained that the report did not record the responses that they had provided. Germany, for example, noted that while it had appreciated the opportunity to take part in a dialogue with the mandate holders on the subject of secret detention, it was disappointed that a factual inaccuracy it had pointed out had not been corrected in the final report. China, Ethiopia, Nepal and Romania made similar comments. Mr Scheinin responded that Nepal's response had unfortunately been received too late to be included, while Ethiopia's was merely a general denial and did not provide sufficient grounds to warrant the removal of the case from the report. He hoped that States who felt that their responses had not been taken into account would resubmit them. Similar concerns were expressed that cases had been used from treaty monitoring body reports, without recording the replies of States (Algeria, Nigeria on behalf of the African Group, and the Philippines).

In general States expressed the view that the investigation of secret detention was important. However, the nature of such an investigation seems inevitably to bring with it methodological difficulties which the mandate holders readily acknowledged. It was also pointed out that clarity in judicial and incarceration systems would ensure that no case that was not secret detention could be mistaken as such.

These questions of methodology very much overshadowed substantive issues. Of those that were raised, the connection between torture and secret detention came to the fore. Argentina, Australia, France, India, Norway, South Africa and the USA all noted that secret detention made torture far more likely, with Sweden noting that secret detention could in itself amount to torture. India stated that it had brought their domestic legislation into line with CAT but other countries (Mexico, Chile) questioned the value of the ratification of treaties as means of ending practices such as secret detention. Austria brought up the issue of habeas corpus during periods of armed conflict; Mr Scheinin confirmed that habeas corpus was a non-derogable right.

A number of States asked about how the Council could ensure follow up to the study's recommendations (Switzerland, South Africa, Denmark, Austria). In response, Mr Scheinin stated that the Council could adopt a resolution on the study's recommendations. The Council could through the resolution call on States to undertake independent investigations into allegations of cases of secret detention and keep the Council informed of the outcome of such investigations. Currently, there is no indication that any State is willing to follow up on the study through a resolution. This clearly calls into question the commitment of States to combat the practice of secret detention.