Clarity or Confusion? General Comment 35 and Security Detention

I’d like to raise a few issues about security detention that Shaheed Fatima didn’t cover in her thoughtful posts (here and here) on the Human Rights Committee’s (HRC) new General Comment 35.

For those who claim that security detention is necessarily impermissible under International Human Rights Law (IHRL), the General Comment will come as unwelcome news—but the Committee is not saying anything new on this point.  In the now-replaced 1982 General Comment on Article 9, the Committee similarly noted that security detention is permissible when properly controlled.

What is new compared to its 1982 predecessor is the General Comment’s expansion of what it means for security detention to be properly controlled.  

With respect to the use of courts in cases of detention, Article 9(4) of the International Covenant on Civil and Political Rights states without qualification:

“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” (emphasis added). Article 9(4), as the Committee states, “enshrines the principle of habeas corpus.” (Para. 39.)

The need for judicial oversight of detention has a long history. Suffice it to say that in times of emergencies States often seek to expand their powers, which often lead to excess and abuse. This makes detention oversight in emergency situations particularly important for the protection of human rights. That being said, the General Comment, in contrast to Article 9(4), instructs States to afford a security detainee access to a “[p]rompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality.” (Emphasis added, para. 15.)

Later in the text, the Committee observes that in exceptional circumstances, under Article 9(4), “legislation may provide for proceedings before a specialized tribunal, which must be established by law, and must either be independent of the executive and legislative branches or must enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature.” (Para. 45.)

It is obvious that the Committee is not entirely comfortable with the use of non-judicial tribunals, which is demonstrated by its attempt to mitigate any fall-out with the principles of “independence” and “impartiality.”

These are crucial safeguards, but as a practical matter States often use non-judicial tribunals precisely to avoid the due process guarantees of courts, so I don’t know what the Committee thinks is gained by making this exception. Perhaps that’s exactly the point: The Committee is appearing to be bending toward State interests when in reality it will use a very high standard for assessing non-judicial tribunals. The end result is that States can now more forcefully argue that Article 9(4) permits the use of non-judicial tribunals and, as a secondary issue, the Committee will have to develop a body of work that explains why those tribunals are, or most likely aren’t, lawful.

Of course, the Committee could have gone down the path of observing that a State can rely on non-judicial tribunals, and security detention more generally, by derogating from Article 9(4). This would not have solved the practical problems associated with the use of non-judicial tribunals, but it would have put the Committee on slightly stronger legal ground (see directly below). But the Committee doesn’t say this, which raises the question: what justifies the Committee’s re-interpretation of the clear language of the treaty text?

Perhaps most peculiar is that the use of non-judicial tribunals appears to be in tension with the Committee’s observations that habeas corpus is a non-derogable right—a fact that the General Comment explicitly reaffirms in paragraph 67 (and which it lifted almost word for word from General Comment 29) when its states, “[i]n order to protect non-derogable rights …the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by measures of derogation” (emphasis added). And, indeed, that section of General Comment 29 grounds the non-derogability of “effective judicial review of detention” in the context of security detentions.

To resolve these apparent inconsistencies, perhaps the Committee would accept that a tribunal “possessing the same attributes of independence and impartiality” can determine the initial lawfulness of an individual’s detention but that a court must be available to review such determinations through a habeas petition. But this might be too generous a read given that the Committee’s acceptance of specialized tribunals rather than courts falls under the General Comment’s section on habeas titled “The right to take proceedings for release from unlawful or arbitrary detention.”

I can only imagine that the language pertaining to derogations, courts, and tribunals was discussed at length during the drafting process, but I can’t say I know how this final language was rationalized. These issues will most likely have to be hashed out, and hopefully resolved soon, through the Committee’s application of the General Comment to its concluding observations and individual complaint procedures.

Article 9’s relationship with International Humanitarian Law:

The Committee observes that IHL is relevant for the purposes of interpreting Article 9, which continues to apply in times of armed conflict. The Committee also observes that when States derogate in the context of armed conflict any derogation measures can’t fall below the applicable rules of IHL. At first glance, there’s nothing particularly new about this. But I agree with Shaheed that the Committee muddies the waters when it elaborates on Article 9’s relationship with IHL.

The Committee explains, “[w]hile 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” (para. 64).

Why does the Committee use the words “may be” in the first sentence instead of “are” (thereby giving the reader the impression that sometimes IHL isn’t relevant for interpreting Article 9) and then, in the second sentence, tells the reader that IHL most certainly has a direct impact on the interpretation of Article 9?

My guess is that the Committee’s loose language reflects the fact that Article 9 can “fall back” on IHL’s detailed rules on security detention in international armed conflict (IAC), whereas Article 9 has no (or very little) IHL to fall back on when it comes to non-international armed conflict (NIAC). For this reason it would be inaccurate to read the General Comment as suggesting that IHL is sufficient for interpreting Article 9 in the context of NIAC. In contrast, the General Comment is clear that IHL is most certainly relevant to a State’s interpretation of Article 9 in the context of IAC. In other words, the Committee is likely saying that IHL “may be” relevant depending on what type of armed conflict you are in.

If my analysis is correct, the Committee’s approach to IAC will likely get props from military lawyers while making some human rights lawyers downright angry for giving up several fundamental IHRL due process guarantees.

For example—in the worst case scenario from an international human rights law perspective—the third sentence in paragraph 64 (“Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary”) indicates that Article 9 could be largely hollowed out under the Fourth Geneva Convention, which permits a detention regime that requires an internee status review proceeding only every six months; that doesn’t require the review to be before a court; that doesn’t afford internees access to lawyers; and that has no rules pertaining to the access of  detainees  to evidence against them.

An internee also has no right under the Fourth Geneva Convention to be informed of the reasons for arrest at the time of arrest—although under Protocol I there is an obligation on the detaining authority to “promptly” inform the detained individual, in a language he or she understands, of the reasons why the measures were taken.

Customary international humanitarian law may have a role to play in filling these gaps—but I wouldn’t want to be a detainee who has to count on that legal source for such basic protections.

The lack of IHL rules for security detention in a NIAC versus the rules that exist in the IHL of IAC also influences how the Committee interprets Article 9 derogations. The Committee observes that the IHL of IAC provides limits on how much States can chip away from Article 9. The Committee states: “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” (para. 66).

Compare that approach to what the Committee says about what marks the “bottom” of Article 9 outside IACs: “Outside [international armed conflict] 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” (para. 66).

One way to read this paragraph is to see the Committee as telling States to rely on the Article 4 derogation regime (and not IHL), to employ security detention in a NIAC. This makes sense given the IHL lacuna. But I don’t think the Committee is going quite this far.  For reasons discussed above, I read the General Comment as saying that security detention is permissible without derogations up to a certain point both inside and outside times of emergency, but if a State wants to add additional restrictions on top of that—such as in the context of NIAC—then derogation is required.

I agree with Shaheed that the General Comment did not provide clear authoritative guidance on many of the most pressing issues relating to security detention. That said, detention is one of the most complex issues that rests at the intersection of IHL and IHRL. In this sense, the HRC’s adoption of General Comment 35 carries on the work of various other initiatives (see here and here) and recent court rulings (see here and here).

Like those that came before, the General Comment’s views on security detention are sure to be criticized from various sides for both allowing States to do too much and for not giving States enough detention liberties.

From a human rights perspective, I don’t want to suggest that the Committee has bent IHRL over backwards for IHL, though this might be the case with respect to IAC.  Nonetheless, it could be argued that especially in the context of NIAC, the General Comment represents an admixture of IHL-concepts from IAC (something Shaheed too observes in her second post) and fundamental IHRL safeguards that come together to create a “bottom floor” for security detention that is arguably both above what IHL requires and below what IHRL requires.

(Note: For further reading, I recommend the insightful and detailed comments that the International Commission of Jurists provided during the General Comment’s drafting process.)




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Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).