The Human Rights Committee’s Draft Comment 35 on Detention and Security of Persons: A long, long time coming yet still falls short

On June 30, 1982 the Human Rights Committee adopted General Comment No. 8 on Article 9 (the right to liberty and security of the person).

It has taken a mere 32 years – a significant chunk of which (in case you, too, missed it) has been given over to intense international debate about the right to liberty – for the HRC to decide that the time is finally ripe for a new General Comment on Article 9. Last week, on March 25, the HRC concluded its first reading of its draft General Comment No. 35 (“the draft GC”). The draft GC will now be sent to States parties for their consideration and comments, with a second reading tabled for July this year.

The draft GC contains 71 paragraphs and 229 footnotes. General Comment No. 8 is a one-page document containing four paragraphs. It is, therefore, something of an understatement to describe the draft GC as a quantum leap forward in articulating and developing the HRC’s jurisprudence on Article 9, which provides,

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. 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.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

That does not mean, however, that the draft GC cannot be improved or clarified. It can and should be, especially in relation to deprivations of liberty in the national security context (“national security detentions”). There is no doubt that the draft GC improves on General Comment No. 8 in this respect. Insofar as General Comment No.8 addressed national security detentions it did so in sparse terms: Also if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5). And if, in addition, criminal charges are brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, must also be granted. (§4) The draft GC gives the topic a great deal more consideration (although that is, admittedly, not difficult) – see, for example, §§3; 8-10; 39; 42; 60; 65; 67-71. However, at least three aspects of the draft GC could be improved/clarified:

–          First, the draft GC does not adequately address the need for States to clearly articulate grounds for national security detentions. Thus:

  • One of the most striking differences between Article 9, ICCPR and Article 5, ECHR is that the former does not, as the draft GC observes, “provide an enumeration of the permissible reasons for depriving a person of liberty” (§15). The protections of Article 9 are, in this sense, less defined (and softer) than those of Article 5 which, in Article 5(1), contains an exhaustive list of permissible categories of deprivations of liberty which are to be strictly construed: see well-known European Court of Human Rights’ cases such as Engel v. The Netherlands (no 1) (1979-80) 1 EHRR 647 §57; Ireland v United Kingdom (1979–80) 2 EHRR 25 §194 and Al-Jedda v UK (2011) 53 EHRR 23 §99.
  • Article 5(1) includes, as a permissible ground of deprivation of liberty the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. In the context of national security detentions this means that the detainee must, for example, be “reasonably suspected” of having committed an identifiable “offense”. These requirements impose a clearly defined check on the State’s power to detain.
  • Considered by reference to Article 5(1), ECHR: Article 9 and the draft GC fall short. The draft GC does comment on the grounds on which a person might be deprived of liberty. It does not, however, squarely confront national security detentions (cf. in the immigration context and mental health contexts: §§18-19). Instead, there is this passing statement: “The substantive grounds for arrest or detention must be prescribed by law, and should be defined with sufficient precision to avoid overly broad or arbitrary application” (§22) That is accompanied by a  footnote which refers to various grounds as being “vague”: “national security”; “extremist activity”; “unlawful association”.
  • Whilst this is a promising start, the draft GC should go further. Even if the HRC does not feel able to reflect in Article 9 the stringencies of Article 5(1), ECHR it should, nonetheless give greater and more detailed consideration to national security detentions (as it does to, e.g., immigration detention).

–          Secondly, the draft GC does not adequately address extra-territorial arrest and detention scenarios. Thus:

  • The draft GC provides, “Given that arrest and detention bring a person with a state’s effective control, States parties must not arbitrarily or unlawfully arrest or detain individuals outside their territory.” (§65)
  • Coiled within this terse statement is a potentially powerful statement of principle. However, it needs to be uncoiled and explained. Commentary on this issue is important because, the scope of extra-territorial jurisdiction in international human rights law remains contentious, notwithstanding recent important developments such as the Grand Chamber judgment in Al-Skeini v UK (2011) 53 EHRR 18.

–          Finally, the draft GC does not adequately address the question of whether national security detentions in armed conflict should be governed by international human rights law (“IHRL”), i.e. in this context, Article 9, or international humanitarian law (“IHL”). Thus:

  • The draft GC includes the following: “article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While more specific rules of international law may be especially relevant for the purposes of the interpretation of article 9, both spheres of law are complementary, not mutually exclusive.” (§67) The footnotes to these ambiguous statements show that they are, essentially, a repetition of General Comment No. 31, §11. See also the draft GC, §69.
  • This is disappointing. The relationship between IHRL and IHL is currently a pivotal international law issue. Deprivation of liberty is probably the area which most obviously exposes the tensions in that relationship, as epitomised by Al-Jedda (especially in the House of Lords’ judgment: see [2008] 1 AC 332). This is not an issue which is likely to be resolved any time soon. For example, judgment is presently awaited in a case before the English High Court in which the British Government has argued that its detention of Afghans, in Afghanistan, i.e. during a non-international armed conflict, is lawful pursuant to IHL. A key issue facing the Court is whether IHL should apply, displacing the application of Article 5 and, if it applies, what the content of the relevant rule of IHL is.
  • Given the obvious importance of this issue, the draft GC’s limp repetition of an ambiguous position is uninspiring. Whilst the HRC might not be able to advance a bright-line position on this legally complex and politically sensitive issue, it might at least use the opportunity of the draft GC to refresh and, possibly, redefine, the parameters of this important debate.

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers