Last October, the United Nations Human Rights Committee adopted General Comment No. 35 (GC) which has important implications for international law regulating detentions, including in wartime.  The Committee focused on Article 9 of the International Covenant on Civil and Political Rights. At Just Security, both Shaheed Fatima (here and here) and Jonathan Horowitz (here) have offered their views on parts of the GC that are important from a national security perspective.

In this post, I wish to highlight three aspects of the state submissions to the Committee in the course of drafting the GC, focusing on the submissions of the US, UK, and Canadian governments. (The full list of submissions received by the Committee can be viewed here.) The state submissions are important for two reasons. First, they can help in the interpretation of the GC, particularly where they highlight what the Committee knew at the drafting stage but presumably rejected when finalizing the text. Second, the submissions document the state parties’ interpretations of the treaty, which will remain relevant as a matter of domestic and international law regardless of the GC. 

Relationship with international humanitarian law 

State parties, including the US, UK, and Canada, stressed that the text must accord sufficient weight to what they argue is the well-established principle that IHL is the lex specialis in situations of armed conflict and thus, the controlling body of law in this regard.

In particular, the US argued against the implication in the draft text that international humanitarian law does not provide the lex specialis in non-international armed conflicts (NIAC) [para 21]. Thus, the US (and others, including Canada [para 12]) called on the Committee to delete the word “international” before “armed conflict” in what became paragraph 66 in the final text. The final text 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. 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…”

The fact that the final text retains the reference to “international” armed conflict, despite the calls for amendment, helps clarify the Committee’s view on the interaction between IHL and international human rights law. In particular, it supports the view that the reference to IHL in the third sentence of paragraph 64 (“Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary”) is limited to IHL as applicable to international armed conflicts – as picked up by Shaheed in her post. Moreover, as Shaheed highlights, the Committee’s decision to stick with the narrower reference to “international” armed conflict in paragraph 66 strongly indicates that the GC does not view IHL in NIAC as regulating arbitrary detention, with international human rights law providing the only protection in such instances. 

The US was also critical of the text in paragraph 15 on security detention on the basis that the text “incorrectly implies” that the detention of enemy combatants in NIAC “would normally amount to arbitrary detention as other effective measures addressing the threat, including the criminal justice system, would be available” [para 22]. The US and Canada [para 13] reiterated their position on IHL as the lex specialis and that detention of enemy combatants in all armed conflicts until the end of hostilities is consistent with IHL.

Extraterritorial application 

A number of state parties called on the Committee to revise what is now contained in paragraph 63 of the GC, namely:

“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.”

The test of “effective control” is disputed by the US and Canada [para 7]. The US, in particular, maintains that the Covenant applies only to individuals who are “both within the territory of a State Party and subject to its jurisdiction” [para 5].

[For a further discussion on the US position on the extraterritorial application of human rights obligations and the relationship between international human rights law and IHL, see this post from Beth Van Schaack—analyzing the state of the US position in 2013 and how it had developed over time. And see Just Security’s additional coverage of the issue of extraterritorial application of human rights treaties.]

Derogation under Article 4 ICCPR

State parties raised a number of issues with regard to the Committee’s text on derogations. (Readers may recall that Article 4 of the ICCPR deals with derogations from Covenant obligations. Article 4(2) explicitly sets out the non-derogable obligations; Article 9 (administrative detention) is not included in this list.)

The issue I want to flag here is with respect to paragraph 66 of the GC:

“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.”

Notably, the Committee had already taken this view in 2001 in General Comment No. 29 on derogations under Article 4 (see paragraph 11 and footnote 9).

The US and others states expressed strong disagreement with the Committee’s view on this matter. According to the US submission:

“24. …The only cited authority for this sweeping statement is a footnote reference to paragraph 11 of General Comment 29 which refers to “arbitrary deprivation of liberty” as either a peremptory norm, violation of international humanitarian law, or both, without any elaboration or authority. The United States does not believe that a “fundamental guarantee against arbitrary detention” is considered a peremptory norm. The United States also notes that, as discussed in paragraph 21, international humanitarian law provides the lex specialis in non-international armed conflicts as well as international armed conflicts, and that as a general matter derogation would only be relevant as to action within the Covenant’s scope of application.”

Canada similarly documented its opposition to what it refers to as a “sweeping proposition” [para 14]. Both the UK [para 30] and Canada submitted that: “there is insufficient evidence to establish that there is a rule of jus cogens in respect of the right not to be subject to arbitrary detention.” Rather, the state parties maintained that derogations from Article 9 merely had to comply with the requirements of Article 4(1): that any derogation must be “strictly required by the exigencies of the situation,” must not be “inconsistent with [states’] other obligations under international law,” and must be non-discriminatory.

The final text adopted by the Committee does not necessarily suggest a disagreement with state parties on the issue of jus cogens. “Non-derogation” has two meanings: one with reference to jus cogens and the other simply meaning no ability to suspend treaty obligations in times of emergency (which may be due to the fact that it would be unreasonable to do so, and not due to the peremptory status of the norm). It would appear that the Committee is using the term only in the latter sense, without saying anything about the jus cogens character of the prohibition on arbitrary detention.