During its 110th session last month, the United Nations Human Rights Committee concluded its first reading of Draft General Comment No. 35 on Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to liberty and security of person, including the freedom from arbitrary arrest and detention. The Committee invites interested stakeholders to submit comments on the draft before June 1, 2014. [OHCHR]
The Human Rights Committee adopts its authoritative interpretations of specific rights set forth in the ICCPR in the form of general comments, which guide States and other actors in understanding the scope of the right and the protections required. During its 16th session in 1982, the Human Rights Committee adopted General Comment No. 8 on Article 9. Its four paragraphs provide minimal guidance on a select few issues raised by Article 9. When the Committee adopts General Comment No. 35, it will replace General Comment No. 8. See UN Human Rights Committee, General Comment No. 8: Article 9 (Right to Liberty and Security of Persons), UN Doc. HRI/GEN/1/Rev. 6 p. 130, 30 June 1982.
Article 9 of the ICCPR 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 judgment.
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.
Draft General Comment No. 35
Draft General Comment No. 35 describes generally the sorts of situations that may constitute a deprivation of liberty and States’ obligations to respect and ensure personal liberty – including against the actions of private individuals and other third parties. The text then examines in greater detail the following topics:
- arbitrary detention and unlawful detention;
- the requirement that an individual be given notice of reasons for arrest and any criminal charges;
- judicial control of detention in connection with criminal charges;
- the right to judicial proceedings for release from unlawful or arbitrary detention;
- the right to compensation for unlawful or arbitrary arrest or detention; and,
- the relationship of Article 9 with other articles of the ICCPR.
See Human Rights Committee, Draft General Comment No. 35: Article 9 (Liberty and Security of Person), 110th Session.
During the drafting process, the Committee has edited and expanded the general comment. The most recent draft added a paragraph on how administrative detention or internment poses serious risks of arbitrary deprivation of liberty, noting that it could only be used under “the most exceptional circumstances.” The draft notes that while international humanitarian law allows States to address security threats through detention that may otherwise be considered arbitrary, “article 9 applies also in situations of armed conflict” and the two “spheres of law are complementary, not mutually exclusive.” Moreover, the “requirements of strict necessity and proportionality constrain any derogating measures involving security detention” without a view to criminal prosecution that occurs outside of the armed conflict context. The text now also confirms that Article 9 prohibits States from imposing or allowing a “substantial waiting period” before a detainee can challenge his or her unlawful detention, because the right to bring proceedings for release applies from the moment of arrest. Compare Human Rights Committee, Draft General Comment No. 35: Article 9 (Liberty and Security of Person), UN Doc. CCPR/C/107/R.3, 107th Session, 28 January 2013 with Human Rights Committee, Draft Comment No. 35: Article 9 (Liberty and Security of Person), 110th Session, paras. 15, 42, 63, 65.
Notably, the draft confirms that States’ obligations under the ICCPR extend to “all persons who may be within their territory and to all persons subject to their jurisdiction,” as well as those under the State’s “effective control.” The prohibition on prolonged incommunicado detention and requirement of prompt review of the lawfulness of a detention apply to all persons within the State’s custody. Draft General Comment No. 35, Liberty and Security of Person, 110th Session, para. 62. However, the draft provides no more detailed discussion of the nature and extent of Article 9’s extraterritorial application, which has been an issue of considerable debate, including in the “war on terror” context. [NYT]
The new draft has been criticized for failing to specify the permissible grounds for security detention, providing inadequate detail concerning extraterritorial arrest and detention, and for not clarifying whether international humanitarian law or international human rights law takes precedence in situations of armed conflict. [Just Security]
Human Rights Committee Discussion
Efforts to create the new general comment began during the Committee’s 106th session on October 25, 2012, when the Committee held a general discussion to solicit the input of National Human Rights Institutions (NHRIs), non-governmental organizations (NGOs), and academia. The Committee began its first reading of the draft general comment during its 107th session, and completed its review in March 2014. [OHCHR] The Committee is currently calling for submissions from all stakeholders before the second reading commences in July. [OHCHR]
During its review this March, the Committee explored how the protections of Article 9 related to other ICCPR provisions, including how protection of the rights to liberty and security of person reduces the risks of torture and other ill-treatment prohibited by Article 7, and Article 9 overlaps with Articles 10 and 12, which protect the rights of persons deprived of liberty and the liberty of movement.
Committee Members also considered the applicability of Article 9 outside the territory of States parties and in situations of armed conflict. [OHCHR]
The Committee expressed concern that if its paragraph on security detention listed the conditions that allow derogation from Article 9, it might create the misconception that the Committee supports the use of preventative detention as long as States comply with the requirements of strict proportionality and necessity. To remedy this potential misunderstanding, the majority of Committee Members voted to list safeguards for detainees that had to be respected in all cases, rather than listing conditions allowing derogation. [OHCHR]
Submission Requirements
The Human Rights Committee invites Member States, UN and regional human rights mechanisms, UN organizations or specialized agencies, NHRIs, NGOs, research institutions, and members of academia to submit comments on the draft. Those interested in submitting comments must write them in English, French, or Spanish. The comments will not be translated, and will be posted on the Office of the High Commissioner for Human Rights website once they are received. Comments should be saved in Word document format and emailed to [email protected] and [email protected]. All submissions must be received by June 1, 2014. [OHCHR]