of remaining vigilant against practices that erode the absolute prohibition
of torture in the context of counter-terrorism.68
States’ international responsibility may be engaged for committing an
internationally wrongful act, for bringing assistance or aid to other States
in the commission of a wrongful act, for acquiescing in this conduct
or for failing to prevent such acts from occurring on its territory. States
may also be held responsible when their agents have acted ultra vires. In
addition, where such violations have taken place, States have a duty to
undertake prompt and effective investigations to identify and prosecute
those responsible, as well as ensure that the victims are adequately
compensated.69
D. Liberty and security of the person
All persons are protected against the unlawful or arbitrary interference
with their liberty. This protection is applicable in the context of criminal
proceedings, as well as other areas in which the State might affect the
liberty of persons.70 In practice, as part of their efforts to counter terrorism,
States have adopted measures which have an impact on the liberty of
persons, such as: pretrial procedures for terrorism offences, including
provisions concerning bail and the remand of persons in custody awaiting
trial; pretrial detention (detention before laying a criminal charge against
a person for the purpose of further investigating whether that person was
involved in the commission, or assisted in the commission, of a terrorist
offence); administrative detention (detention to prevent a person from
committing, or assisting in the commission of, a terrorist offence); control
orders (imposing conditions on a person, short of detention, to prevent
that person from committing, or assisting in the commission of, a terrorist
offence, including the detention of a person awaiting determination of
immigration or refugee status); and compulsory hearings (detention and
compulsory questioning of a terrorist suspect, or non-suspect, to gather
intelligence about terrorist activities).
As part of its efforts to counter terrorism, a State may lawfully detain
persons suspected of terrorist activity, as with any other crime. However,
if a measure involves the deprivation of an individual’s liberty, strict
compliance with international and regional human rights law related to
the liberty and security of persons, the right to recognition before the
law and the right to due process is essential. Any such measures must,
at the very least, provide for judicial scrutiny and the ability of detained
persons to have the lawfulness of their detention determined by a judicial
36
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