ADVANCE UNEDITED Distr. VERSION GENERAL A/HRC/13/42 26 January 2010 Original: ENGLISH HUMAN RIGHTS COUNCIL Thirteenth session Agenda item 3 Joint study on global practices in relation to secret detention in the context of countering terrorism of 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 Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances A/HRC/13/42 Page 2 CONTENTS Paragraph Page I. INTRODUCTION 1-7 II. SECRET DETENTION UNDER INTERNATIONAL LAW 8-56 A. Terminology 8-16 B. Secret detention and international human rights law and international humanitarian law 17-56 1. Secret detention and the right to liberty of the person 18-23 2. Secret detention and the right to a fair trial 24-27 3. Secret detention and enforced disappearance 28-30 4. Secret detention and the absolute prohibition on torture and other forms of ill-treatment 31-35 5. State responsibility through secret detention by proxy 36-43 6. Secret detention and derogations from international human rights 44-53 7. Secret detention and international humanitarian law 54-56 III. SECRET DETENTION PRACTICES IN PAST CONTEXTS 57-97 A. The emergence of the recent practice of secret detention 57-59 B. The recent practice of secret detention 60-86 1. Secret detention in Latin America 60-70 2. Secret detention in Africa 71-74 3. Secret detention in Northern Africa and the Middle East 75-78 4. Secret detention in Asia 79-83 5. Secret detention in Europe 84-86 C. The United Nations and regional responses towards outlawing the practice of secret detention 87-97 IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001 98-162 A. The “high-value detainee” program and the CIA’s own secret detention facilities 103-129 B. CIA detention facilities or facilities operated jointly with US military in battlefield zones 130-139 1. Afghanistan 131-135 2. Iraq 136-139 C. Proxy detention sites 140-156 1. Jordan 143-144 A/HRC/13/42 Page 3 2. Egypt 145 3. The Syrian Arab Republic 146-148 4. Morocco 149 5. Pakistan 150-151 6. Ethiopia 152-154 7. Djibouti 155 8. Uzbekistan 156 D. Complicity in the practice of secret detention 157 E. Secret detention and the United States administration of President Obama 158-165 V. THE NATURE AND SCOPE OF SECRET DETENTION PRACTICES IN RELATION TO CONTEMPORARY REGIONAL OR DOMESTIC COUNTER-TERRORIST EFFORTS 165-281 A. Asia 167-201 B. Central Asia 202-206 C. Europe 207-214 D. Middle East and North Africa 215-250 E. Sub-Saharan Africa 251-281 V. CONCLUSIONS 282-292 Annex I SUMMARY OF GOVERNMENT REPLIES TO QUESTIONNAIRE Annex II CASE SUMMARIES A/HRC/13/42 Page 4 I. INTRODUCTION 1. The present joint study on global practices in relation to secret detention in the context of countering terrorism was prepared 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 Working Group on Arbitrary Detention (represented by its Vice Chairperson), and the Working Group on Enforced and Involuntary Disappearances (represented by its Chairperson). 2. The study was prepared within the mandates of the above-mentioned special procedures. In particular, the Human Rights Council, in its resolution 6/28, requested the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to make concrete recommendations on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and to work in close coordination with other relevant bodies and mechanisms of the United Nations, in particular with other special procedures of the Council, in order to strengthen the work for the promotion and protection of human rights and fundamental freedoms while avoiding unnecessary duplication of efforts. 3. In its resolution 8/8, the Council requested the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to study, in a comprehensive manner, trends, developments and challenges in relation to combating and preventing torture and other cruel, inhuman or degrading treatment or punishment, and to make recommendations and observations concerning appropriate measures to prevent and eradicate such practices. 4. In its resolution 6/4, the Council requested the Working Group on Arbitrary Detention to seek and receive information from Governments and intergovernmental and non-governmental organizations, and receive information from the individuals concerned, their families or their representatives relevant to its mandate, and to formulate deliberations on issues of a general nature in order to assist States to prevent and guard against the A/HRC/13/42 Page 5 practice of arbitrary deprivation of liberty. Like other mandates, it was asked to work in coordination with other mechanisms of the Human Rights Council. 5. In its resolution 7/12, the Council requested the Working Group on Enforced or Involuntary Disappearances to consider the question of impunity in the light of the relevant provisions of the Declaration on the Protection of All Persons from Enforced Disappearances, having in mind the set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/Sub.2/1997/20/Rev.1, annex II, and E/CN.4/2005/102/Add.1), and to provide appropriate assistance in the implementation by States of the Declaration and existing international rules. 6. In the above context, the four mandates endeavoured to address global practices in relation to secret detention in counter-terrorism. In the joint study, they describe the international legal framework applicable to secret detention and provide a historical overview of the use of secret detention. The study addresses the use of secret detention in the context of the “global war on terror” in the post 11 September 2001 era. To the extent possible, in order to demonstrate that the practice of secret detention is regrettably not an uncommon one, it also highlights a number of cases where it has been utilized in and by States from various geographical regions. Owing to its global nature, the present study cannot be exhaustive but rather aims to highlight and illustrate by examples the wide spread practice of secret detention and related impunity. Finally, the study concludes with concrete recommendations regarding these practices, aimed at curbing the use of secret detention and the unlawful treatment or punishment of detainees in the context of counter-terrorism. 7. Owing to the secrecy of the practice of secret detention, it was often difficult to gather first hand information; nevertheless, a wide array of national, regional and international sources was consulted. While United Nations sources have been drawn upon, primary sources include responses to a questionnaire sent to all Member States (annex I) and interviews with current or former detainees (summaries of which are given in annex II). In some cases, secondary sources such as media and other sources were A/HRC/13/42 Page 6 used. Such accounts, while not always verifiable are utilized when regarded by the mandate holders as credible. Responses to the questionnaire were received from 44 States. A number of interviews had been held with people who were held in secret detention, family members of those held captive, as well as legal representatives of individuals held. The mandate holders conducted face to face interviews in Germany and the United Kingdom of Great Britain and Northern Ireland. Other interviews were conducted by telephone. Formal meetings at the level of capitals were held with officials in Berlin, London and Washington, D.C. The mandate holders thank those States that cooperated with them and facilitated their joint work. They also wish to thank the Office of the United Nations High Commissioner for Human Rights (OHCHR) as well as others who provided valuable research and other assistance to the study. II. SECRET DETENTION UNDER INTERNATIONAL LAW A. Terminology 8. 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 1 Article 2 (a) of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session, in 2001, taken note of by the General Assembly in its resolution 56/83, and applied by the International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, judgment, 26 February 2007. A/HRC/13/42 Page 7 “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 9.