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ICRC REPORT ON THE TREATMENT OF FOURTEEN "HIGH VALUE DETAINEES" IN CIA CUSTODY

February 2007

4. LEGAL ASPECTS IN RELATION TO UNDISCLOSED DETENTION

As described in the following paragraphs, it is a basic tenet of international law that any person deprived of liberty must be registered and held in an officially recognized place of detention.

International humanitarian law (IHL) applicable to international armed conflicts contains numerous provisions and provides extensive requirements concerning the registration of persons deprived of their liberty, ICRC visits to places of detention and the transmission of information related to such persons to, inter alia, their next of kin14. The entire system of detention provided for by the Geneva Conventions of 1949, in which the ICRC plays a supervisory role, is based on the idea that detainees must be registered and held in officially recognised places of detention. While under the Geneva Conventions ICRC access to certain detainees may be restricted for reasons of imperative military necessity, such restriction should be of a temporary and exceptional nature only15.

Customary rules of IHL and human rights soft law instruments contain similar explicit provisions on the obligation of registration of detainees and the prohibition of unacknowledged detention, as well as provisions on contacts with family, applicable in situations of non-international armed conflicts and other situations of violence16. All of the above-mentioned rules aim at preventing, inter alia, enforced disappearance, which is prohibited under international law, including customary IHL. As far as IHL is concerned, the phenomenon of enforced disappearance violates, or risks violating, a range of customary rules, most notably the prohibition of arbitrary deprivation of liberty and the prohibition of torture and/or other cruel, inhuman or degrading treatment (CID)17.

In the ICRC’s view, the fourteen were placed outside the protection of the law during the time they spent in CIA custody. Indeed, one of the main effects of the transfers was to place the fourteen in secret detention facilities in unspecified locations in a number of different countries, outside the reach of any judicial or administrative system. As such, they were, for instance, apparently both precluded from knowing the reasons for their detention and denied access to any mechanism capable of independently reviewing the lawfulness of their detention. They were also denied contact with their families, including any information to the families of their detention. The totality of the circumstances in which the fourteen were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law.18

As regards conditions of detention and treatment of the fourteen, the effects of their being in undisclosed detention were severe and multifaceted, as the present report shows. The absence of scrutiny by any independent entity—including the ICRC— inevitably creates conditions conducive to excesses that would not otherwise be permitted. Persons held in undisclosed detention are especially vulnerable to being subjected to ill-treatment. Indeed, the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination—that amounted to torture and/or cruel, inhuman or degrading treatment.

In that regard, the ICRC wishes to remind the US authorities that international law absolutely prohibits CID and torture. Torture is defined by the 1984 UN Convention against Torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”19. In particular, the provisions of common article 3 to the Geneva Conventions, which reflects elementary considerations of humanity, stipulate that persons taking no active part in the hostilities “shall in all circumstances be treated humanely”, and that “cruel treatment and torture”, “outrages upon personal dignity, in particular humiliating and degrading treatment” are prohibited at any time and in any place whatsoever.



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