Secret Detention and the Right to Information

Jonathan Hafetz*

Introduction

Secret detention is fundamentally inconsistent with the right to information.

States, however, sometimes invoke national security to limit the public’s access to a variety of information surrounding detention. Claims of national security are made, for example, to conceal the specific identity, location, and treatment of prisoners as well as policies underlying their detention and treatment, thus contributing to a

“secret law” of detention. In many instances, those claims are not only exaggerated but have led to egregious human rights violations, including torture and enforced disappearance. In addition to undermining core human rights protections, secret detention threatens the principles of openness and transparency on which democratic societies depend.

Despite international norms forbidding secret detention, the practice remains, and has been reinvigorated by counter-terrorism operations, notably by the United States in its launching of a global “war on terror” in response to the 9/11 terrorist attacks. Terrorism is frequently framed in vague terms, thereby limiting the public’s access to information about detention and weakening accountability mechanisms. Indeed, States may label certain acts or groups as “terrorist” in order to deviate from ordinary detention rules and apply a special regime with limited substantive and procedural safeguards. Secrecy helps enable the military, intelligence agencies, and law enforcement to operate in a legal vacuum, freed from

* Associate Professor of Law, Seton Hall University School of Law. the constraining effects of law or other publicly available control mechanisms.

Secret detention not only conceals the impact on victims and their families but also hides human rights violations from the public in the name of security.

This paper examines the practice of secret detention in the context of national security and counter-terrorism operations. It will explain why secret detention is incompatible with all potentially applicable legal frameworks— whether the threat to the public order is defined as one of criminal law enforcement, armed conflict, or a combination of the two. As the paper explains, the Global

Principles on National Security and the Right to Information (“The Tshwane

Principles”) mark an important step in helping to improve public access to information about detention, and thus ensuring human rights protections and the transparency that democratic societies depend for accountability and informed public debate.

Part I discusses the International Convention for the Protection of all Persons from Enforced Disappearance, as it presents the most specific prohibition against secret detention in international law. Part II looks at secret detention in the context of international human rights law more generally. As the paper explains, secret detention contravenes a constellation of human rights norms, and renders protection and enforcement of those norms a dead letter. Part III examines secret detention from the perspective of international humanitarian law. As the paper explains, States cannot evade the prohibition against secret detention by framing the struggle against terrorism in terms of armed conflict because, like international human rights law, international humanitarian law prohibits secret detention. Part

2 IV considers how secret detention—including secret rules or policies permitting the practice—are incompatible with democratic principles of transparency and the rule of law.

I. The Prohibition against Enforced Disappearance

The International Convention for the Protection of all Persons from Enforced

Disappearance (“Enforced Disappearance Convention”) constitutes the most specific articulation of an international prohibition against secret detention.1 The

Convention, which entered into force in 2010, defines enforced disappearance as

“the arrest, detention, abduction, or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the law.”2 This definition plainly encompasses the practice of secret detention. As the U.N. Human Rights

Council has explained, “[e]very instance of secret detention also amounts to a case of enforced disappearance.”3 The Enforced Disappearance Convention applies at all

1 International Convention for the Protection of All Persons from Enforced Disappearance, G.A. Res. 61/177, U.N. Doc. A/RES/61/177 (Jan. 12, 2007) (“Enforced Disappearances Convention”). The Inter-American Convention on Forced Disappearances (IACFD) was the first treaty defining the notion of enforced disappearances. See Inter-American Convention on Forced Disappearance of Persons, June 9, 1994, OAS/Ser. P AG/doc. 3114/94 rev.1 (entered into force Mar. 28, 1996) 2 Enforced Disappearances Convention, supra note 1, art. 2. 3 See Human Rights Council, U.N. Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, p.17, U.N.Doc. A/HRC/13/42 (Feb. 19, 2010) [hereinafter Secret Detention Study], available at http://www.un.org/Docs/journal/asp/ws.asp?m=A/HRC/13/42.

3 times, including during armed conflict or internal instability.4 Moreover, it requires

States to make enforced disappearance a crime under their domestic law,5 provides that the widespread or systemic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law,6 and requires

States parties to provide victims with the opportunity to obtain reparations for enforced disappearance in their respective legal systems.7

The Enforced Disappearance Convention further obligates States parties not to transfer an individual to another State where there are substantial grounds for believing that individual will be subjected to enforced disappearance.8 This non- refoulement obligation—which mirrors the non-refoulement obligation under the

Convention against Torture or other Cruel, Inhuman or Degrading Treatment or

Punishment9—seeks to close potential loopholes by prohibiting a State from engaging in secret detention by outsourcing it to another State.10 It also implicitly

4 Enforced Disappearances Convention, supra note 1, art. 1(2) (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”). 5 Id. art. 4. 6 Id. art. 5. Under the 1998 Rome Statute's Elements of Crime, enforced disappearance may also be part of a crime against humanity. See Rome Statute of the International Criminal Court, art. 7(1). July 17, 1998, U.N. Doc. A/CONF. 183/9 (1998), 2187 U.N.T.S. 90 (1998). 7 Id. art. 23. 8 Enforced Disappearances Convention, supra note 1. art. 16(1) ((“No State Party shall expel, return (‘refouler’), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.”). 9 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 113. 10 See Vijay M. Padmanabhan, To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-Refoulement, 80 FORDHAM L. REV. 73, 104-05 (2011) (describing general trend in human rights treaties to include a

4 recognizes the degree to which secret detention relies on systems of transborder cooperation, in which prisoners may be transferred from one government to another to conceal information surrounding their confinement. As the U.N. Human

Rights Council observed, “Practices such as ‘hosting’ secret detention sites or providing proxy detention have been supplemented by numerous other facets of complicity, including the landing of airplanes for refueling, short-term deprivation of liberty before handing over the ‘suspect,’ the covering up of kidnappings, and so on.”11

More than ninety states have signed the Enforced Disappearance

Convention.12 While only about forty states have ratified it thus far,13 forced disappearance is among the customary prohibitions that have attained the status of jus cogens.14

II. Secret Detention and International Human Rights Law

The specific prohibition on enforced disappearance also forms part of a larger web of protections against the practice. Secret detention effectively takes prisoners outside any legal framework and renders meaningless the safeguards

non-refoulement provisions and explaining how those provisions seek to “deepen rights fulfillment). 11 Secret Detention Study, supra note 3, at 5. 12 International Convention for the Protection of All Persons from Enforced Disappearance, United Nations Treaty Series, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 16&chapter=4&lang=en. 13 Id. Notably, the United States and United Kingdom have not signed or ratified the treaty. 14 Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987).

5 contained in international agreements and under customary international law.15

Numerous human rights norms that do not specifically reference secret detention form part of the prohibition against secret detention and serve as a prophylactic against the practice. As discussed below, these norms require, inter alia, the publication of names of prisoners, their locations, and the circumstances surrounding their detention.

Most fundamentally, secret detention contravenes the individual liberty guarantees under international human rights law. Article 9 of the International

Covenant on Civil and Political Rights (“ICCPR”) provides that all individuals have the right to liberty and security of person and that no one should be subjected to arbitrary arrest or detention nor deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.16

Article 9 further provides that individuals deprived of their liberty by arrest or detention should be entitled to take proceedings before a court in order that the court may adjudicate promptly the legality of their detention and order their release if the detention is unlawful.17 Secret detention negates these protections and renders meaningless a detained person’s right of access to court. The Working

Group on arbitrary detention has thus classified secret detention as per se arbitrary,

15 Id. at 4. 16 International Covenant on Civil and Political Rights, art. 9, adopted by the General Assembly Dec. 16, 1966, 999 U.N.T.S. 171 (“ICCPR”). 17 Id. art. 9(4).

6 a category reserved for detentions where it is impossible to invoke any legal basis for justifying the deprivation of liberty.18

Secret detention also contravenes the right to a fair trial under article 14 of the ICCPR.19 Individuals who are denied access to a judge and to the underlying charges against them—assuming they are charged with any offense and not detained without charge—are necessarily denied their right to fair trial. Such detainees lack adequate time and facilities for the preparation of their defense and are unable to communicate freely with the counsel of their choosing as mandated by article 14.20 In addition, other practices prevalent in secret detention—including the pressure to confess created through denial of contact with the outside world and the family’s lack of knowledge of the detainee’s whereabouts and fate—infringe the right fair-trial protections, including the right not to be compelled to testify against oneself or to confess guilt.21

The ban on arbitrary detention is also tied closely to the prohibition against torture, as the State’s ability and proclivity to engage in torture increases when a prisoner is held in secret detention. Secret detention is frequently used not only to facilitate but also to conceal torture and other cruel, inhuman, or degrading treatment.22 States engage in secret detention to keep silent and hidden both the victims and the use of illegal interrogation methods themselves. In addition, secret

18 UN Commission on Human Rights, Report of Working Group on Arbitrary Detention, E/CN.4/1998/44, para. 8(a). 19 ICCPR, supra, note 16, art. 14. 20 Id. art. 14(3)(b)-(d). 21 Id. art. 14(3)(g). 22 Secret Detention Study, supra note 3, at 5.

7 detention may itself constitute torture or other unlawful treatment for the victims as well as for their families.23

Standards for the treatment of prisoners similarly demonstrate the illegality of secret detention. The United Nations Standard Minimum Rules for the Treatment of Prisoners require that prisoners be able to communicate with family and friends on a regular basis, both through correspondence and visitation.24 The rules further provide that prisoners have the right to inform their family immediately upon their imprisonment or transfer to another institution.25 By requiring that prisoners be allowed access to family and others, the rules thus forbid states from keeping a prisoner’s identity and location secret. While the Standard Minimum Rules do not carry the force of law, they provide authoritative guidance to binding treaty standards.26 The right of detained persons to communication is also contained in the U.N. Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment.27

In addition, secret detention infringes the informational and judicial access rights of family members and other third parties. The Enforced Disappearance

23 Id. at 289. 24 Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), 2076 (LXII), U.N. Doc. A/CONF/611 (Aug. 30, 1955) (“Standard Minimum Rules”). 25 Id. 26 See Human Rights Watch, International Human Rights Standards Governing the Treatment of Prisoners (2006), http:// web.archive.org/web/20041101073451/http:// www.humanrightswatch.net/prisons/standards.html. 27 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/43/49, principle 15 (1988) (requiring that “communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days”

8 Convention, for example, defines as the “victim” of enforced disappearances not only the disappeared person but also any individual who has suffered direct harm as a result.28 The Convention further provides that victims are entitled to know the truth regarding the circumstances surrounding the disappearance, the status and results of any investigation, and the ability to obtain restitution and reparations through the State’s legal system.29 These right-to-know protections are incompatible with any regime that conceals the identity, location, and treatment of prisoners and basic circumstances surrounding their detention.

Secret detention has repeatedly been found illegal in case law. The UN

Working Group on Arbitrary Detention has held that the detention of individuals at an undisclosed place of custody, where the individual had no access to counsel, relatives, or any legal procedure, constitutes arbitrary detention.30 The UN Working

Group has also found that the prolonged incommunicado detention by the United

States of twenty-six individuals in secret CIA “black sites” as part of the global “war on terror” constituted arbitrary detention.31

The European Court of Human Rights (“ECtHR”) has consistently held that secret detention violates multiple provisions of the European Convention on Human

Rights. In Cakici v. Turkey,32 for example, the ECtHR addressed the case of a murder suspect who was detained by the government and had been in government custody,

28 Enforced Disappearances Convention, supra note 1, art. 24(1). 29 Id. art. 24(1),(4)-(5). 30 UN Commission on Human Rights, Working Group on Arbitrary Detention, Opinion No. 12/2006 (A/HRC/4/40/Add. 1), p. 63. 31 UN Commission on Human Rights, Working Group on Arbitrary Detention, Opinion No. 29/2006, A/HRC/40/Add. 1. 32 1999-IV Eur. Ct. H.R. 583.

9 before disappearing. The ECtHR found that the individual could be presumed dead, and that Turkey had violated his guarantee of the right to life under the European

Convention, including by failing to adequately investigate his disappearance. In Kurt v. Turkey,33 the ECtHR found Turkey in violation of the European Convention based on the disappearance of an individual who had been taken from his village by government security forces. The Court underscored the importance of prompt judicial intervention in ensuring an individual’s right to life and right to be free from torture and other inhuman or degrading treatment under the Convention. Because unacknowledged detention is a complete negation of the protection of liberty and personal security, the ECtHR explained, it constitutes a grave violation of the right to be free from arbitrary detention. Further, the ECtHR noted, the absence of data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it, are incompatible with the right to be free from arbitrary detention.

The Inter-American Court of Human Rights (“Inter-American Court”) has likewise condemned secret detention. As the Inter-American Court explained in its pathmarking Velasquez-Rodriguez decision,34 the “forced disappearance of human beings”—a practice that encompasses secret detention—“is a multiple and continuous violation of many rights under the [American Convention on Human

Rights] that States parties are obligated to respect and guarantee,” including, but not limited to, the right to be free of arbitrary detention.35 Secret detention, the Inter-

33 App. No. 24276/94, 27 Eur. Comm'n H.R. Rep. 373 (1998). 34 Judgment of July 29, 1988, Inter-Am. Ct. H.R. (Ser. C) No. 4 (1988) 35 Id., para. 155.

10 American Court explained, not only facilitates the use of torture and other abusive interrogation methods, but also can itself constitute cruel and inhuman treatment by depriving individuals of human contact and subjecting them to prolonged isolation.36 Secret detention, moreover, often involves execution without trial, in violation of the right to life, followed by efforts to conceal the evidence of the crime and ensure the impunity of those responsible.37 States, therefore, not only are prohibited from engaging in secret detention, but also must act to both prevent and punish this practice as part of their broader “duty to promote and protect rights, and to investigate and punish abuses.”38

In establishing a right to justice, Velasquez-Rodriguez helped lay the foundation for the right to truth, which also is fundamentally incompatible with secret detention. While the right to truth emerged in response to the widespread practice of enforced disappearances by authoritarian regimes in Latin America during the 1980s and 1990s,39 its origins may be traced to international humanitarian law.40

The right to truth, as a United Nations Economic and Social Council study explains, requires knowing the “full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including

36 Id.. para. 156. 37 Id., para. 157. 38 Id., para. 166; see also id., paras. 174-76. 39 Elizabeth B. Ludwin King, A Conflict of Interests: Privacy, Truth, and Compulsory DNA Testing for Argentina’s Children of the Disappeared, 44 CORNELL INT’L L.J. 535, 556 (2011). 40 Id. at 555 (noting the international-humanitarian-law requirement that families have the right to know the fate of their relatives and the international- humanitarian-law duty for states to search for missing persons and report on their findings).

11 knowing the circumstances in which the violations took place, as well as the reasons for them.” 41 Thus both victims and society as a whole have a right to know all the facts surrounding grave human rights violations. 42 As the right to truth has evolved, it has expanded from its right-to-justice origins to encompass an entitlement to seek and to obtain a variety of information surrounding human rights abuses, including those pertaining to the victims.43 The ICRC has described the right to truth as an established norm of customary international law.44 The right is procedural nature.

It is triggered by the commission of a human rights violation and requires the responsible authorities to provide information regarding the violation to the victim and/or his or her families.45 A State, moreover, cannot deny access to information about serious human rights violations to judges and autonomous investigating agencies (whether a public prosecutor or a truth commission) by claiming the information is an official secret, invoking national security, or asserting that the information is protected by confidentiality.46 Indeed, in the event that such

41 U.N. Econ. & Soc. Council, Comm’n on Human Rights, Promotion and Protection of Human Rights: Study on the Right to Truth, at 4, U.N. Doc. E/CN.4/2006/91 (Feb. 8, 2006) (U.N. Econ. & Soc. Council, Study on the Right to Truth). 42 Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, The Right to Access to Information on Human Rights Violations para. 7(citing decisions by the Inter-American Court on Human Rights) (“Special Rapporteur for Freedom of Expression, The Right to Access to Information”). 43 U.N. Econ. & Soc. Council, Study on the Right to Truth, supra, note 41, at 11. 44 See International Committee of the Red Cross, Customary Int’l Humanitarian Law, vol. 1, at 421 (2005). 45 See Yasmin Naqvi, the Right to the Truth in International Law: Fact or Fiction?, 88 INT’L REV. RED CROSS 245, 249 (2006); see also Ignacio Ellacuria v. El Salvador, Case No. 136/99, Inter-Am. C.H.R,., para. 221. 46 See, e.g., Case of Myrna Mack-Chang v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 101, para. 180 (Nov. 25, 2003); Case of Gomes Lund et al. (Guerrilha do Araguaia) v.

12 information is lost, a State has the obligation to reconstruct it.47 The right to truth, in short, requires making known a range of facts about prisoners—including their identities, locations, and the circumstances of their confinement—so that abuses may be investigated and, where appropriate, punished. This right is directly contrary to and incompatible with secret detention.

ICCPR article 4 does acknowledge that a State may derogate from certain rights “in times of public emergency which threatens the life of the nation,”48 including the prohibition against arbitrary detention contained at article 9.49

Derogation under article 4, however, is subject to substantive and procedural constraints: the State must have officially proclaimed a state of emergency; the derogation measures must be limited to those strictly required by the exigencies of the situation (and thus are not permitted when the same aim could be achieved through less intrusive means); and those derogation measures must not be inconsistent with the State’s other international obligations, nor may they be discriminatory.50 Article 4 lists certain rights that cannot be derogated from under any circumstances, including the right to life (article 6) and the prohibition against

Brazil, Preliminary Exception, Merits, Reparations and Costs, (ser. C) No. 219 (Nov. 24, 2010). 47 Special Rapporteur for Freedom of Expression, The Right to Access to Information, supra note 42, para. 21. 48 ICCPR, supra note 16, art. 4(1). 49 Id. arts. 4(1), (2); see also Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REV. 769, 797 (2011) 50 Secret Detention Study, supra note 3, at 23; see also U.N. Human Rights Committee, CCPR/C/21/Rev.1/Add. 11, para. 3 (explaining that even during an armed conflict, measures derogating from the ICCPR are permitted only if and to the extent that the situation constituted a threat to the life of the nation).

13 torture or other cruel inhuman or degrading treatment or punishment (article 7).51

Those non-derogable rights must be secured by procedural guarantees—often, by judicial review—and can never made subject to measures, such as secret detention, that would circumvent their protection.

The Human Rights Committee has confirmed that the prohibition against unacknowledged detention is not subject to derogation, notwithstanding that ICCPR articles 9 and 14 are not among the derogable rights contained in article 4.52 It has criticized states for attempting to derogate from this prohibition53 and has directed states to implement measures, such as holding detainees in officially recognized places of detention and registering all detainees, to prevent secret detention in practice.54

51 ICCPR, supra note 16, art. 4(2). 52 U.N. High Comm'r for Human Rights, General Comment No. 29: States of Emergency (art. 4), P 3, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001); 53 See U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee: United States of America, para. 12, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006) (stating that the United States should immediately case its practice of secret detention and close all secret detention facilities) (“Concluding Observations of the Human Rights Committee: United States of America”). 54 Human Rights Committee, General Comment No. 20, para. 11, U.N. Doc. HRI/GEN/1/Rev.1 (1994) (“To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends”).

14 III. Secret Detention and Armed Conflict

States have sought to invoke rationale of armed conflict to justify secret detention. Most notably, the United States relied on the paradigm of a global “war on terrorism” to engage in the secret detention of individuals at CIA “black sites” as well as at Defense Department facilities such as Guantánamo Bay, Cuba, and Bagram

Air Base in Afghanistan, where it concealed the names of detainees for years. The

United States has sought to justify its detention practices based on the law of armed conflict and defended its detention practices on this basis before international bodies (although publicly acknowledging only official detention sites, such as

Guantanamo Bay and Bagram).55 But secret detention is not permitted in armed conflict regardless of how the conflict is characterized. The Human Rights

Committee sharply criticized the U.S. position, calling on it to abolish secret detention and granting prompt access by the ICRC to any person detained in connection with an armed conflict.56 The European Union Parliamentary Committee has called the U.S. secret detention and rendition program “criminal” and “illegal.”57

As the International Court of Justice (ICJ) has explained, “[t]he protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of

55 See U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Second Periodic Reports of States Parties Due in 1999, Addendum, United States of America, U.N. Doc. CAT/C/48/Add.3 (June 29, 2005) (outlining U.S. position). 56 See Concluding Observations of the Human Rights Committee: United States of America, supra note 53, para. 12. 57 See Parl. Ass., Comm. on Legal Aff. and Hum. Rts., Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states, Doc. No. ajdoc16 Part II, at 6, 34 (2006).

15 the [ICCPR].”58 Article 4, as discussed above, does not permit secret detention under any circumstances. Thus, to the extent international human rights law informs international humanitarian law under the principle of complementarity, as it should where the latter does not provide a more specific rule to the contrary (or lex specialis), international human rights law bolsters the prohibition on secret detention during armed conflict.59

Secret detention is contrary to international humanitarian law, thus making the prohibition mutually reinforcing under both bodies of international law.

International humanitarian law treaties do not refer to the term “secret detention” as such. However, secret detention imperils, if not directly violates, a range of customary international humanitarian law rules, including the prohibition against arbitrary deprivation of liberty,60 the prohibition against torture and other cruel or inhuman treatment,61 and the prohibition of murder.62 In addition, in international armed conflicts, the extensive requirements concerning registration, visits, and transmission of information with respect to persons deprived of their liberty are aimed, inter alia, at preventing enforced disappearances.

58 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 2004 I.C.J. 136, P 106 (July 9). See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, P 25 (July 8) (affirming the applicability of the ICCPR during armed conflicts). 59 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (2005) ICJ Rep 116 (applying international human rights law and international humanitarian law in parallel, without as a first step identifying the lex specialis or the exclusive matter). 60 Jean-Marie Henckaerts & Louise Doswald-Beck, with contributions by Carolin Alvermann et al, Customary International Humanitarian Law Rules, vol. 1, rule 99, (2005) (“ICRC Rules) 61 Id., rule 90. 62 Id., rule 89.

16 The ban on secret detention in international humanitarian law draws force several ICRC rules drawn from customary international law and the Geneva

Conventions that provide for recording and notification of personal details of prisoners, prisoners’ ability to correspond and communicate with the outside world, and timely notification of the other party regarding the identity of prisoners in a

State’s custody or control. While these rules may vary slightly depending on the conflict’s classification, the prohibition against secret detention embodied in these rules applies in both international and non-international armed conflicts.

In international armed conflicts, the Third and Fourth Geneva Conventions require that the names and other identifying details of all persons deprived of their liberty be recorded and forwarded to the other party and to the ICRC’s Central

Tracing Agency.63 This requirement has a long lineage, tracing to the Hague

Regulations, which provided for the establishment of national information bureaus to receive and provide information on each prisoner of war.64 The obligation to record the personal details of persons deprived of their liberty during armed conflict is also contained in regional conventions65 as well as in numerous military manuals.66 The recording obligation reinforces the prohibition against enforced disappearances and the obligation to account for persons reported missing.67

The Geneva Conventions contains a closely related requirement that the ICRC

63 ICRC Rules, supra note 60, rule 123. 64 Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex, art. 14, 36 Stat. 2277, 2295-96 65 Inter-American Convention on the Forced Disappearance of Persons, art. 11, June 9, 1994, 33 I.L.M. 1529. 66 ICRC Rules, supra note 60, rule 123 (citing military manuals). 67 Id., rule 98 (enforced disappearances); id. rule 117 (murder).

17 be provided with the personal details of prisoners and be granted regular access to prisoners to verify the conditions of their detention and restore contacts between those persons and their families.68 The ICRC must be given the freedom to choose the places it wishes to visit and the opportunity to interview the detainees without witnesses.69 While visits may be refused for reasons of imperative military necessity, such refusal must be an exceptional and temporary measure.70 Like the obligation to record detainees’ personal details, the ICRC’s right to visit detainees is recognized in other treaties and instruments, in military manuals, and official statements and other practice.71 It is further established by the numerous visits by the ICRC to prisoners of war, civilian internees, and security detainees in countries across the globe.

The Geneva Conventions also seek to prevent secret detention by requiring that detained individuals be allowed to correspond with their families, subject to reasonable conditions imposed by the detaining authority72—a right recognized in other treaties, including the Convention on the Rights of the Child.73 While the

Fourth Geneva Convention provides for derogation from this right where a detainee poses a security threat,74 the derogation is restricted to the detainee’s ability to

68 Id., rule 124. 69 Geneva Convention Relative to the Treatment of Prisoners of War, art. 126, Aug. 12, 1949, 6 U.S.t. 3316, 75 U.N.T.S 135 (“Third Geneva Convention”). 70 Id.. 71 ICRC Rules, supra note 60, rule 124 (citing authorities). 72 Id., arts. 70-71; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, arts. 106-107, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (“Fourth Geneva Convention”). 73 United Nations Convention on the Rights of the Child (UNCRC), art. 37(c), Nov. 20, 1989, 1577 U.N.T.S. 3. 74 Fourth Geneva Convention, supra note 72, art. 5.

18 communicate with family members, and does not extend to a State’s obligation to record and forward the detainee’s name to the other party or to permit ICRC access to the detainee.

While these various requirements were developed in international armed conflict, the Legal Advisor to the ICRC has explained that all detainees, including those held in non-international armed conflicts, be “registered and held in an officially recognized [and accessible] place of detention.”75 This requirement is part of a larger framework that relies heavily on the official registration of detainees, notification of authorities, and ICRC access.76

Take, for example, the requirement of recording the personal details of those deprived of their liberty. Given that an underlying purpose of the requirement is to prevent secret detention or forced disappearance, it must apply with equal force in non-international armed conflicts. The European Commission and European Court of Human Rights, for example, have found that the absence of data regarding the identity of the detainee, date and location of detention, and reasons for detention “is incompatible with the right to liberty and security.”77 The ICRC consistently demanded respect for this rule in the context of the armed conflict in Bosnia and

Herzegovina.78

The right to communicate with family members is protected by various instruments applicable to non-international armed conflicts and, based on State

75 Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 INT’L REV. OF RED CROSS, 375, 385 (2005). 76 Id. at 384-85. 77 Kurt v. Turkey, App. No. 24276/94, 27 Eur. Comm'n H.R. Rep. 373 (1998). 78 ICRC Rules, supra note 60, rule 123.

19 practice, is a norm of customary international law applicable to such conflicts.

Additional Protocol II, for example, provides that internees and detainees shall have the right to communicate through letters and cards.79 Other instruments applicable to non-international armed conflicts similarly support a right to correspondence,80 as do military manuals that are applicable or have been applied in such conflicts.81

The status of this rule as customary international law is bolstered by the practice of exchange of Red Cross messages, which the ICRC requires as one of the conditions of its visits, regardless of the nature of the armed conflict.82

Although there is no specific treaty provision requiring access by the ICRC to detainees in non-international armed conflicts, the ICRC may “offer its services” to parties to the conflict under Common Article 3 and, in fact, systematically requests access to persons detained in connection with non-international armed conflicts.83

Such access, moreover, is generally granted, as demonstrated by recent conflicts in

Algeria, Afghanistan, Chechnya, El Salvador, Nicaragua, Nigeria, Rwanda, and

Yemen.84 The UN Security Council, UN General Assembly and UN Commission on

Human Rights, as well as the European Parliament and the Organization for Security and Cooperation in Europe, all have requested ICRC access to detainees in the

79 Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 5(2)(b), Dec. 7, 1978, 1125 U.N.T.S. 610 80 See, e.g., Standard Minimum Rules, rule 37, supra note 24; Body of Principles for the Protection for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 15, G.A. Res. 43/173, U.N. Doc. A/RES/43/173 (Dec. 9, 1988). 81 ICRC Rules, supra note 60, rule 125 (citing military manuals). 82 Id. 83 ICRC Rules, supra note 60, rule 125. 84 Id. (citing examples).

20 context of various non-international armed conflicts. In 1995, the Security Council condemned “in the strongest terms possible” the failure of the Bosnian Serb party to comply with its commitment regarding access to detainees.85 Further, the strong linkage between the purpose of ICRC visits and the enforcement of other existing customary international law rules—including the prevention of enforced disappearance, the prohibition on extrajudicial killings, and the prohibition against torture and other cruel or inhuman treatment—reinforces a customary international law requirement of ICRC visitation in non-international armed conflicts.

The shift in the United States’ position regarding secret detention under the

Obama administration suggests that the United States recognizes the requirement of

ICRC notification in non-international armed conflicts, including the transnational armed conflict it continues to wage against al Qaeda and associated forces. Under

Bush administration, the United States had held terrorism suspects in secret CIA

“black sites” for years in clear violation of international law.86 On January 22, 2009,

President Obama issued an executive order aimed at bringing U.S. counter-terrorism operations in line with international law.87 He ordered that all interrogations comply with Common Article 3 of the Geneva Conventions and the U.S. Army Field

Manual; directed all agencies of the U.S. government to provide the ICRC with timely access to any individual detained by the United States; and ordered the closure of

85 Id. 86 See, e.g., Jordan J. Paust, Civil Liability of Bush, Cheney, et al. for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance, 42 CASE W. RES. J. INT’L L. 359, 368-71 (2009). 87 Executive Order No. 13, 491, “Ensuring Lawful Interrogations,” 74 Fed. Reg. 4893 (Jan. 27, 2009).

21 any remaining secret CIA detention centers.88 The order, however, did not affect facilities operated by U.S. Special Operations Forces in Iraq and Afghanistan. In

August 2009—after receiving a confidential complaint from the ICRC that the U.S. military was holding some detainees incommunicado—the military acknowledged that it had begun informing the ICRC of all names of detainees within 14 days of capture.89 Previously, ICRC notification occurred only after a detainee was transferred from a Special Forces site to a long-term prison.90 While the precise timing of ICRC access to those detainees remains unclear,91 the change in the United

States’ notification policy represents a shift away from the policies that allowed for secret detention after 9/11.

IV. Public Access to the Laws and Rules Governing Detention

Secrecy detention not only violates the rights of its victims and their families, but also threatens the public’s right of access to information. As the U.S. Supreme

Court has explained, the right of access to information is necessary “to ensure an informed citizenry, vital to the functioning of a democratic society, and needed to check against corruption and to hold the governors accountable to the governed.”92

The Inter-American Court of Human Rights, construing the guarantee of freedom of

88 Id. 89 See Eric Schmitt, “U.S. Shifts, Giving Detainee Names to the Red Cross,” N.Y. TIMES, Aug. 22, 2009. 90 Id. 91 See Bruce Zagaris, “International Enforcement Law Trends for 2010 and Beyond: Can the Cops Keep up with the Criminals,” 34 Suffolk Transnat’l L. Rev. 1, 40 (2011). 92 National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

22 expression in the American Convention on Human Rights,93 has similarly underscored the importance of the collective right to receive information.94

The right of access to information regarding detentions is thus important not only to ensuring the transparency on which democratic societies depend, but also on helping ensure countries emerging from past repression successfully transition to democracy. Indeed, it is especially during a process of transition to democracy that it is important to reject national security-based arguments for secrecy regarding enforced disappearances and other grave human rights abuses, given the structural importance of access to information in recognizing errors, providing redress to victims, and generating vigorous public debate.95 As the Constitutional

Court of Colombia has observed, the right to information is not only critical in fulfilling the right to truth of the victims of arbitrary action and human rights violations but it is also essential to “ensur[ing] society’s right to historical memory.”96

Just as national security cannot justify secret detention, it cannot justify secret laws or rules governing detention. In order to ensure public access to laws and rules governing detention, the powers of relevant government authorities,

93 American Convention on Human Rights, art. 13, O.A.S. Treaty Series No. 36, signed Nov. 16, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978). 94 Inter-Am. Ct. H.R., Compulsory Journalists Registration, Advisory Opinion OC-5/85, (Ser. A) No. 5 (Nov. 13, 1985). 95 Special Rapporteur for Freedom of Expression, The Right to Access to Information, supra note 42, paras 7, 13. 96 Constitutional Court of Colombia, Judgment T-511/10, Case T-2.395.898, Bogotá, Colombia (June 18, 2010).

23 including of intelligence services, must be clearly defined in national law.97

Delineating these powers promotes transparency and enables people to foresee what powers may be used against them.98 At the same time, national legislation should explicitly refer to the State’s broader legal obligations, including its obligation to respect human rights.99

The right of access to judicial decisionmaking is likewise a right of the public.

While courts may under limited circumstance restrict public access to portions of court proceedings and documents, a case may never be litigated entirely in secret with no notice of its existence. Rather, the existence and progress of all cases, and the resulting judicial determination, must be made available to the public.100

Similarly, the fact of a person’s arrest and the grounds for that arrest must be made public, not merely because disclosure of that information is necessary to securing individual human rights protections, such as the right to be free from secret and arbitrary detention, but also because it is essential to democratic governance.101

Conclusion

Secret detention is more than a grave violation of human rights, as it helps facilitate other human rights violations, including torture and extrajudicial killing.

97 See Martin Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Human Rights Council, Fourteenth Session, A/HRC/14/46 (May 17, 2010), at 6. 98 Id. at 7. 99 Id. 100 See Emi MacLean, In Open Court: Open Justice Principles, Freedom of Information and National Security, at 19 (Working Paper). 101 Id. see also Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969) (“‘secret arrests’ [are] a concept odious to a democratic society”).

24 Secret detention is unlawful under all legal frameworks and cannot be justified by claims of national security. Ensuring public access to information about detentions is critical not only to the protection of human rights but also to the principles of transparency and accountability.