Draft general comment on Article 9 of ICCPR

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

On 21 March 2013, Gerald L. Neuman, Committee Rapporteur for a General Comment on Article 9 presented the Human Rights Committee’s draft General Comment on State’s parties’ obligations under Article 9 of the International Covenant on Civil and Political Rights, concerning the right to liberty and security of the person to committee members for discussion.

Nigel Rodley, Chairperson of the Committee, stressed the importance of the right to liberty and said that the draft General Comment 35 could become one of the most important General Comments ever adopted by the Committee.

When presenting the draft, Gerald L. Neuman recalled that the drafting process had benefited from submissions and contributions from non-governmental organizations and States Parties during the half-day of general discussion held in October 2012.  He said that these many views and, in some areas, the output of other treaty bodies had helped clarify patterns in practice (see here for a record of the public discussion).

The Human Rights Committee proceeded by reading the General Comment, paragraph by paragraph. On 26th March, it continued this ‘first reading’ and was reported to have gone through paragraphs 2 to 9, out of a total of 71 paragraphs in the General Comment.

Most interesting for readers of this blog is the fact that despite calls from some NGOs for the General Comment to address detention by rebel groups, no such reference appears in the draft currently under discussion.

That being said, the General Comment does address the application of Article 9 in times of armed conflict. The relevant paragraphs are as follows:-

67. With regard to article 4 of the Covenant, the Committee first observes that, like the rest of the Covenant, article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable.[1] 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.[2] In conflict situations, access by the International Committee of the Red Cross to all places of detention becomes an essential additional safeguard for the rights to liberty and security of person.[3]

68. Article 9 is not included in the list of non-derogable rights of article 4, paragraph 2 of the Covenant, but there are limits on States parties’ power to derogate. States parties derogating from normal procedures required under article 9 in circumstances of armed conflict or other public emergency must ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation.[4] Derogating measures must also be consistent with a State party’s other obligations under international law, and non-discriminatory.[5] The prohibitions against taking of hostages, abductions or unacknowledged detention are therefore not subject to derogation.[6]

69. There are other elements in article 9 that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. The fundamental guarantee against arbitrary detention is non-derogable.[7] The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary. Valid derogations from other derogable rights may also be relevant, when a deprivation of liberty is characterized as arbitrary because of its interference with another right protected by the Covenant. During armed conflict, whether international or non-international, substantive and procedural rules of international humanitarian law become applicable and help to prevent the abuse of a State’s emergency powers.[8]

70. The procedural guarantees protecting liberty of person may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights.[9] In order to protect non-derogable rights, including those in articles 6 and 7, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by measures of derogation.[10]

71. While reservations to certain clauses of article 9 may acceptable, it would be incompatible with the object and purpose of the Covenant for a State party to reserve the right to engage in arbitrary arrest and detention of persons.[11]

                     [1]   General Comment No. 31, para. 11; General Comment No. 29, para. 3; Concluding observations India 1997, paras. [433, 438-439]; Israel 1998, para. [317]; Sri Lanka 2004, para. 10, 13; Uganda 2004, para. 12; United States of America 2006, paras. 12, 18; Yemen 2012, paras. 16, 24.

                     [2]   General Comment No. 31, para. 11; General Comment No. 29, para. 3, 12, 16.

                     [3]   Concluding observations Bosnia and Herzegovina 1993, para. [332], Russian Federation 1995, para. [390], India 1997, para. [439], Algeria 1998, para. [435], United States of America 2006, para. 12.

                     [4]   General Comment No. 29, paras. 4-5; Concluding observations Syrian Arab Republic 2005, para. 6; Israel 2003, para. 12.

                     [5]   General Comment No. 29, paras. 8, 9.

                     [6]   General Comment No. 29, para. 13(b).

                     [7]   General Comment No. 29, para. 11.

                     [8]   General Comment No. 29, para. 3.

                     [9]   See General Comment No. 32, para. 6.

                    [10]   General Comment No. 29, para. 16; Concluding observations Israel 1998, para. [317]; Albania 2005, para. 9.

                    [11]   General Comment No. 24, para. 8.

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