UN HRC’s General Comment 35 on the Right To Liberty and Security: A Missed Opportunity?

On October 28, the UN Human Rights Committee adopted General Comment No. 35 (GC) on Article 9 of the International Covenant on Civil and Political Rights (ICCPR), the right to liberty and security of the person. Part One of this post provides a brief guide to the GC. Part Two, coming tomorrow, analyses the national security aspects of the GC.

The scope of the GC is wide-ranging. However, from a national security perspective and in relation to (national) security/administrative detention, of particular interest are paragraphs 15, 63-64, and 66 which provide as follows (footnotes omitted): 

 15.           To the extent that States parties impose security detention (sometimes known as administrative detention or internment), not in contemplation of prosecution on a criminal charge, the Committee considers that such detention presents severe risks of arbitrary deprivation of liberty. Such detention would normally amount to arbitrary detention as other effective measures addressing the threat, including the criminal justice system, would be available. If under the most exceptional circumstances, a present, direct and imperative threat is invoked to justify detention of persons considered to present such a threat, the burden of proof lies on States parties to show that the individual poses such a threat and that it cannot be addressed by alternative measures, and this burden increases with the length of the detention. States parties also need to show that detention does not last longer than absolutely necessary, that the overall length of possible detention is limited, and that they fully respect the guarantees provided for by Article 9 in all cases. Prompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality as the judiciary is a necessary guarantee for these conditions, as is access to independent legal advice, preferably selected by the detainee, and disclosure to the detainee of, at least, the essence of the evidence on which the decision is taken.

63.            In light of article 2, paragraph 1, of the Covenant, States parties have obligations to respect and to ensure the rights under article 9 to all persons who may be within their territory and to all persons subject to their jurisdiction. Given that arrest and detention bring a person within a state’s effective control, States parties must not arbitrarily or unlawfully arrest or detain individuals outside their territory. States parties must not subject persons outside their territory to, inter alia, prolonged incommunicado detention, or deprive them of review of the lawfulness of their detention. The extraterritorial location of an arrest may be a circumstance relevant to an evaluation of promptness under paragraph 3.

64.            With regard to article 4 of the Covenant, the Committee first observes that, like the rest of the Covenant, article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While rules of international humanitarian law may be relevant for the purposes of the interpretation of article 9, both spheres of law are complementary, not mutually exclusive. Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary. In conflict situations, access by the International Committee of the Red Cross to all places of detention becomes an essential additional safeguard for the rights to liberty and security of person.

66.            There are other elements in article 9 that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. The fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances. The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary. Valid derogations from other derogable rights may also be relevant, when a deprivation of liberty is characterized as arbitrary because of its interference with another right protected by the Covenant. During international armed conflict, substantive and procedural rules of international humanitarian law remain applicable and limit the ability to derogate, thereby helping to mitigate the risk of arbitrary detention. Outside that context, the requirements of strict necessity and proportionality constrain any derogating measures involving security detention, which must be limited in duration and accompanied by procedures to prevent arbitrary application, as explained in paragraph 15 above, including review by a court  within the meaning of paragraph 45 above.

(The full text of the GC is here.)

The first reading of the draft GC took place on 25 March 2014. In my earlier post on that first reading draft, I observed that the draft was disappointing because it did not adequately address the following issues:

–       Applicable Law: the question whether security detention in the context of military operations overseas/armed conflict should be governed by Article 9, i.e. international human rights law (IHRL), and/or international humanitarian law (IHL);

–       Jurisdiction: extra-territorial arrest and detention scenarios, and

–       Security Detention: the unique issue of security detention.

After the first reading on 25 March 2014, the Committee invited comments on the draft. It received comments from eight States parties – Austria, Australia, Belarus, Ireland, Japan, Switzerland, United Kingdom and United States – as well as from NGOS and others. Apart from the comments of the United Kingdom, all of the other comments are publicly available here.

The Committee held its second reading, on a revised version of the draft, in July 2014. By the end of that reading it had adopted paragraphs 1-41 with the exception of paragraph 15 (a new paragraph on security detention which was inserted into the draft after the first reading draft and which I consider in Part Two). The Committee continued considering the draft at its October 2014 session and adopted the remainder of the draft (including paragraph 15) on October 28.

Despite this lengthy process of consultation – which started as far back as October 2012 – consideration and revision, it is questionable, to say the least (and as I will consider in Part Two), whether the final version of the GC adequately addresses the three issues identified above. This is disappointing. The purpose of general comments is, as the Committee has said, “to provide appropriate and authoritative guidance to States Parties and other actors on the measures to be adopted to ensure full compliance with the rights protected under this provision” (see the October 2012 invitation to participate in the general discussion on the GC, here).

The Committee has also observed that the “issue of people being detained without criminal charge under security legislation in exceptional situations such as armed conflict” is “highly controversial.” Detailed “authoritative guidance”from the Committee on such a “highly controversial” issue would have been invaluable, especially in assisting with the development of IHRL jurisprudence. In failing to provide it as fully as it could have, the GC may represent a missed opportunity.

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers