139. Additionally, customary international humanitarian law prohibits enforced disappearances
in all circumstances, including during international and non-international armed
conflicts.126
140. International human rights bodies have stressed that the imposition of security detention,
also known as administrative detention or internment that is not in connection with a
criminal charge “presents severe risks of arbitrary deprivation of liberty”.127 This detention
“would normally amount to arbitrary detention”.128 As a result, administrative detention
must be restricted to very limited and exceptional circumstances,129 such as where a
detainee would constitute a clear and serious threat to society that cannot be contained in
any other manner.130 The security detention of a person “for the sole purpose of gathering
information or on broad grounds in the name of prevention” is also deemed unlawful.131
Similarly, subjecting an individual to security detention on the “sole basis” of broadly
formulated suspicion that the individual may be a threat to national security raises serious
concerns, particularly given that information on the reasons for such detention is usually
classified.132 States are therefore to ensure that security detention “does not last longer than
absolutely necessary”, that there is a limit on the “overall length of possible detention” and
that the guarantees provided for in Article 9 of the ICCPR are fully respected. This entails
“prompt and regular review” of the existence of grounds for continued detention by an
independent and impartial judicial body, access to independent counsel and “disclosure to
the detainee of, at least, the essence of the evidence on which the decision is taken”.133
126
While not specifically mentioned in any of the Geneva Conventions, the prohibition of enforced disappearances is viewed as a
violation of other prohibitions in the Geneva Conventions, including arbitrary deprivation of liberty, torture and ill-treatment and
murder. “Customary International Humanitarian Law, Rule 98”, ICRC website, op. cit., note 124.
127
UN HRC, General Comment No. 35, op. cit., note 92, para. 15.
128
Ibid.
129
UN HRC, Concluding observations: Third periodic report of Jordan, CCPR/C/79/Add.35, 10 August 1994, paras. 16,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F79%2FAdd.35&Lang=en>;
UN HRC, Concluding observations: Third periodic report of Morocco, CCPR/C/79/Add.44, 23 November 1994, para. 21,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F79%2FAdd.44&Lang=en>.
130
In the examination of specific instances of administrative detention, however, the UN HRC has generally found that such
instances are not in compliance with the requirements of Article 9 of the ICCPR. The UN CAT has also recommended the
elimination of administrative detention because it puts the detainee at greater risk of torture, ill-treatment or other violations of
human rights. UN HRC, Capora Schweizer v. Uruguay, Communication No. 66/1980, 12 October 1982, para. 18.1,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f17%2fD%2f66%2f1980&La
ng=en>; UN HRC, Concluding observations: Fourth periodic report of Jordan, CCPR/C/JOR/CO/4, 18 November 2010, para. 11,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/JOR/CO/4&Lang=En>; UN HRC,
Concluding observations: Sixth periodic report of Colombia, CCPR/C/COL/CO/6, 4 August 2010, para. 20,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/COL/CO/6&Lang=En>; UN CAT,
Concluding observations: Second periodic report of Jordan, CAT/C/JOR/CO/2, 25 May 2010, para. 13,
<http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.JOR.CO.2.pdf>; UN HRC, Concluding observations: Second periodic
report of Egypt, CCPR/C/79/Add.23, 9 August 1983, para. 10,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F79%2FAdd.23&Lang=en>.
131
UN Special Rapporteur on human rights and counter-terrorism, Martin Scheinin, Report to the Human Rights Council,
A/HRC/10/3, 4 February 2009, para. 38, <http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.3.pdf>.
See, also, Pejic, “Procedural Principles and Safeguards”, op. cit., note 16, p. 380.
132
UN Special Rapporteur on human rights and counter-terrorism, Report to the General Assembly, A/63/223, op. cit., note 55,
paras. 19-20; “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007,
op. cit., note 18, p. 730.
133
UN HRC, General Comment No. 35, op. cit., note 92, para. 15; UN Special Rapporteur on human rights and counterterrorism, Report to the Human Rights Council, A/HRC/10/3, op. cit., note 131, para. 38.
55
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