ICJ Legal Commentary on the right to challenge the lawfulness of detention in armed conflict
The UN Working Group on Arbitrary Detention will today present to the Human Rights Council its “Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court” (UN Doc A/HRC/30/37 (2015)).
“The Basic Principles and Guidelines act to reflect important elements necessary to preserve and protect the right to liberty,” said Wilder Tayler, Secretary-General of the ICJ.
“The document assists States, international organization and civil society to enhance, in law and in practice, respect for the right to challenge the lawfulness of detention by habeas corpus or equivalent procedures,” he added.
As concluded by the ICJ’s Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, there has been a progressive erosion of international law principles since the so-called ‘war on terror’.
Along with many other aspects of the Basic Principles and Guidelines, the ICJ has therefore welcomed the attention given to the application human rights standards alongside international humanitarian law and the related provisions of the document pertaining to detention in armed conflict.
“In light of some recent State practices, including in the context of unlawful rendition and secret detention programmes, there is an especially important value in this aspect of the Basic Principles and Guidelines, including for the combating of incommunicado and secret detention, enforced disappearance and torture and other cruel, inhuman or degrading treatment,” Tayler said.
“It is for this reason that the ICJ has produced a Legal Commentary on elements of the Basic Principles and Guidelines pertaining to detention in armed conflict,” he added.
The ICJ’s Legal Commentary supports the general approach adopted by the Working Group in its formulation of the Basic Principles and Guidelines as they pertain to detention in armed conflict.
It provides further explanation and justification for the Working Group’s approach, with particular reference to international law and standards, showing why the Basic Principles and Guidelines – as they apply to detention in armed conflict – should be scrupulously followed.
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group on Arbitrary Detention to prepare draft basic principles and guidelines on remedies and procedures on the right of anyone deprived of his or her liberty.
The Basic Principles and Guidelines were adopted by the Working Group in April 2015, following a two-year process of deliberations and open consultations.
The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014.
From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft.
The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015.
The ICJ engaged in all stages of the Working Group’s elaboration and consultations.
It made written submissions in November 2013, April 2014 and March 2015.
Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Alex Conte, Senior Legal Adviser at ICJ, t: +41 22 979 3838 ; e: alex.conte(a)icj.org
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