Follow-up to the joint study on secret detention in the context of countering terrorism

Despite the highly challenging ongoing circumstances posed by the coronavirus disease (COVID-19) pandemic, the Special Rapporteur had a busy and fruitful year, defined by extensive dialogues with multiple States and civil society stakeholders. In addition to the activities detailed in her report to the General Assembly,² she undertook over 100 consultations with civil society groups across six continents. She provided extensive technical assistance to multiple States during the seventh biannual United Nations Global Counter-Terrorism Strategy Review process. She completed a constructive country visit to Uzbekistan. She regretfully was unable to undertake her country visit to Singapore under the terms of reference of the special procedure mandate holders. She will undertake a visit to Maldives in the first half of 2022. The Special Rapporteur provided technical assistance to the production of the model legislative provisions for victims of terrorism, led by the Inter-Parliamentary Union, the United Nations Office on Drugs and Crime (UNODC) and the United Nations Counter-Terrorism Centre of the Office of Counter-Terrorism. The Special Rapporteur makes it a priority to provide technical assistance and views concerning counter-terrorism legislation to States. Since January 2021, she has provided reviews of legislation or legislative developments to Algeria, Austria, Belarus, Brazil, China, Denmark, France, Haiti, the Netherlands, New Zealand, Nicaragua, Sri Lanka, Thailand, Turkey, the United Kingdom of Great Britain and Northern Ireland, Uzbekistan, Venezuela (Bolivarian Republic of) and Zimbabwe, as well as to the European Union.³

2. A/76/261. ↩
3. See communications CHN 3/2022; GBR 3/2022; DZA 12/2021; NZL 1/2021; THA 7/2021; ZWE 3/2021; LKA 7/2021; VEN 8/2021; GBR 11/2021; OTH 229/2021; THA 5/2021; AUT 2/2021; LKA 3/2021; HTI 2/2021; UZB 4/2021; BRA 6/2021; FRA 5/2021; DNK 3/2021; NLD 2/2021; BLR 2/2021; TUR 3/2021; and NIC 4/2020. Government replies to communications are available at spcommreports.ohchr.org. ↩

In 2010, four special procedures mandate holders produced a unique joint study on global practices in relation to secret detention in the context of countering terrorism.⁴ The Human Rights Council had charged the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman and degrading treatment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances to address various dimensions of secret detention that fell within the scope of their mandates.⁵ These mandates came together in a transparent and open manner to avoid duplication of effort and to ensure complementary reporting. They presented an extraordinary study describing the international legal framework applicable to secret detention, explaining and condemning the wide range of human rights violations that follow from secret detention, identifying States responsible for individual and collective acts of secret detention, and concluding with specific and concrete recommendations to remedy past violations and prevent future harms in counter-terrorism contexts.

4. A/HRC/13/42. ↩
5. Human Rights Council resolutions 6/4, 6/28, 7/12 and 8/8. ↩

Further to the consideration of the joint study by the Human Rights Council, a follow-up report to analyse further information and to assess the level of implementation of the 2010 recommendations was advised. However, resourcing for a study of similar scale has proven elusive in the intervening period. Nonetheless, since 2010, all four mandate holders have addressed the issue of secret detention through individual communications,⁶ and have continued through their respective mandates and collectively to press for the implementation of concrete recommendations that resulted from the study.⁷ Considering the 20-year anniversary of the events of 11 September 2001 and the rendition of the first detainee to Guantánamo Bay, Cuba, on 11 January 2002, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism devotes the present annual report to addressing the following:
(a) The human rights consequences of systemic and gross human rights violations engaged by secret rendition;
(b) The catastrophic personal and familial consequences for individuals who have been subjected to secret detention, recalling in particular the facilitation of torture or other inhuman and degrading treatment;
(c) The abject failure of States to implement the recommendations resulting from the joint study;
(d) The evolution of State practice from secret detention to such practices as extraordinary rendition,⁸ “rendition to justice”, extraterritorial operations, expulsion, extradition,⁹ lawful transfer and the use of diplomatic assurance in the context of transfers of persons accused or suspected of terrorism and extremism between States.

6. See communications USA 5/2016 (Mustafa al-Hawsawi); USA 5/2020 (Ammar al-Baluchi); USA 17/2020 (Haji Hamdullah, 18 Yemeni detainees and Ravil Mingazov); ARE 3/2020 (Haji Hamdullah, 18 Yemeni detainees and Ravil Mingazov); ARE 5/2021 (Ravil Mingazov); and USA 22/2017 (Ammar al-Baluchi, also known as Ali Abdul Aziz Ali) and Government replies. See also A/HRC/48/57, paras. 38–60. ↩
7. OHCHR, “Guantanamo Bay: ‘Ugly chapter of unrelenting human rights violations’ – UN Experts”, 10 January 2022. See also opinions of the Working Group on Arbitrary Detention regarding the Guantánamo Bay Detention Facility: A/HRC/WGAD/2021/32 (United Arab Emirates and United States of America); A/HRC/WGAD/2019/85 (Libya, Senegal and United States); A/HRC/WGAD/2019/70 (United States); A/HRC/WGAD/2017/89 (United States); A/HRC/WGAD/2016/56 (Afghanistan and United States); A/HRC/WGAD/2016/53 (Afghanistan and United States); A/HRC/WGAD/2014/50 (Cuba and United States); A/HRC/WGAD/2013/10; A/HRC/13/30/Add.1 (containing opinions 2/2009 and 3/2009); A/HRC/16/47/Add.1 (containing opinion 26/2009); and A/HRC/4/40/Add.1 (containing opinion 29/2006). ↩
8. This term is not defined in international law. This definition is used: “the apprehension of a person often sponsored by one State in the territory of another State, with or without that State’s cooperation, and the subsequent extrajudicial transfer of the person from the territory in which the person was abducted to another State for detention and interrogation” (A/HRC/43/35, para. 11). ↩
9. An extradition is a formal legal process through which the requesting State seeks from the executing State the transfer of a person to its jurisdiction for the purpose of criminal prosecution or to serve a criminal sentence (UNODC, “Model law on extradition”, 2004, p. 8). ↩

The Special Rapporteur has been significantly aided in this task by the 2021 report of the Working Group on Enforced or Involuntary Disappearances, which she endorses.¹⁰ Recalling the 2010 joint study in documenting cases whereby States resorted to extraterritorial transfers that led to enforced disappearances with the participation, support or acquiescence of other States, in an attempt to capture their nationals or third country nationals, often as part of purported counter-terrorism operations,¹¹ the Working Group addressed enforced disappearances in the context of transnational transfers.¹² Its report provides a highly concerning assessment on contemporary allegations of gross human rights violations, including enforced disappearances, in the context of national security and countering terrorism, in particular the following:
Serious allegations of gross human rights violations, including enforced disappearances, were reported to the Working Group shortly before, during or in the immediate aftermath of alleged transnational transfers from Afghanistan, Albania, Azerbaijan, Cambodia, Gabon, Kazakhstan, Kenya, Lebanon, Malaysia, Pakistan, Panama and Uzbekistan, as well as from Kosovo,¹³ to Turkey; from Egypt, Myanmar and the United Arab Emirates to China; from Cambodia, the Lao People’s Democratic Republic and Vietnam to Thailand; from Thailand to the Lao People’s Democratic Republic; from Malaysia to Egypt; from Egypt to Yemen; from Lebanon to the Syrian Arab Republic; from Ukraine to Uzbekistan; from France and Germany to the Russian Federation; from the United Republic of Tanzania to Burundi; from Kenya to South Sudan; from Afghanistan and Pakistan to the United States of America and subsequently to the United Arab Emirates; from Senegal via Tunisia to Libya; and from the United Republic of Tanzania via Afghanistan and Djibouti to Yemen. It is noteworthy that these cases are not emblematic of the real extent of the phenomenon. Rather, they are a snapshot of what appears to be the increasing practice of forcible repatriations or involuntary returns by States acting on national security grounds at the expense of the fundamental rights and freedoms of the alleged victims.¹⁴

10. A/HRC/48/57. ↩
11. Ibid., para. 38. ↩
12. Ibid., para. 40. ↩
13. References to Kosovo shall be understood to be in the context of Security Council resolution 1244 (1999). ↩
14. A/HRC/48/57, para. 40 (footnotes omitted). ↩

The Special Rapporteur underscores that the evolution of practices from secret detention to transnational transfer in counter-terrorism contexts continue to be marked by an abject lack of adherence to fundamental human rights norms, thin lines of judicial oversight, meagre to non-existent legal and/or political accountability, targeting of religious and ethnic minorities, and a high degree of tolerance by democratic and non-democratic States alike for the subversion of the rule of law to enable persons to be rendered to jurisdictions where they have a high likelihood of being subjected to arbitrary detention, surveillance, and torture and other cruel, inhuman and degrading treatment or punishment. The permissive environment created for human right “lite” counter-terrorism since 11 September 2001, the growth of the global counter-terrorism architecture, the privatization of counter-terrorism and the weakening of national oversight mechanisms have all contributed to the current status quo. The ultimate victim of the entrenched practices of secret detention has been the rule of law. Only a meaningful and sustained commitment to human rights-compliant counter-terrorism will start to undo the damage done, reverse the harm to the rule of law and undercut the production of conditions conducive to terrorism, which are sustained and fed by these practices.

The study was unflinching in its assessment of the human rights violations occasioned by secret detention. It establishes a resolute historical account of secret detention from its use by the Nazi regime to deployment by the former Soviet Union in its Gulag system of forced-labour camps.¹⁵ It provided a comprehensive analysis of the international legal framework applicable to secret detention.¹⁶ The study reinforces the international law position that secret detention is a violation of the right to personal liberty and breaches the prohibition of arbitrary arrest or detention.¹⁷ Secret detention denies and subverts the right to a fair trial.¹⁸ In addition, it unequivocally amounts to enforced disappearance,¹⁹ and when its use is widespread and systematic, as was the case in the aftermath of the events of 11 September 2001, secret detention reaches the threshold of a crime against humanity.²⁰ Secret detention robs those detained of the protection of law, most specifically the right to habeas corpus.²¹ The family members of persons secretly detained are victims in their own right, suffering the horrors of not knowing where the loved ones are, fearing the worst, often subsequently subject to a barrage of connected State-sanctioned counter-terrorism measures not least when they refuse to be silent and continue to advocate for the protection of their relatives.²² Every instance of secret detention is incommunicado detention.²³ Secret detention is consistently, unrelentingly and brutally connected to the practice of torture and other cruel, inhuman and degrading treatment or punishment .²⁴ The practice of secret torture is evidenced from multiple countries and regions, including Asia, Central Asia, Europe, the Middle East, North Africa, sub-Saharan Africa and Latin America.²⁵ The annex to the present report names every single individual mentioned in the 2010 report. The Special Rapporteur profoundly regrets that not a single person named has had full or adequate remedy for the profound violations of human rights they experienced. This finding is a stain on the integrity of the international human rights system as a whole.

15. A/HRC/13/42, paras. 57–58. ↩
16. Ibid., paras. 18–53. ↩
17. Ibid., paras. 18–23. ↩
18. Ibid., paras. 24–27. ↩
19. Ibid., paras. 28–30. ↩
20. Ibid., para. 30. The widespread, authorized and systematic nature of secret detention, confirmed by subsequent investigations and reporting, have augmented the information contained in the joint study, including the Senate Select Committee on Intelligence study of the Central Intelligence Agency’s detention and interrogation program, available at www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf; judgments of the European Court of Human Rights regarding the complicity of some of its member States in secret detention practices; Dick Marty, Council of Europe Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, 12 June 2006; Andy Worthington, The Guantánamo Files: The Stories of 744 Detainees in America’s Illegal Prison (London, Pluto Press, 2007); and North Carolina Commission of Inquiry, “Torture flights: North Carolina’s role in the CIA rendition and torture program”, (2018). ↩
21. A/HRC/13/42, para. 19. ↩
22. Ibid., para. 29. ↩
23. Ibid., para. 31. ↩
24. Ibid., para. 34. ↩
25. Ibid., paras. 132–281. ↩

The detail and specificity of torture and other cruel, inhuman and degrading treatment or punishment systematically carried out during secret detention and legally justified²⁶ under the rubric of the “global war on terror”, is documented in the 2010 study. Our contemporary understanding of the forms of physical, emotional and psychological harm experienced by detainees has expanded since 2010, because of newly available personal accounts from detainees, and of evidence to judicial bodies and other investigations being released into the public domain. Regrettably, substantial efforts were expended to suppress that information by the State authorizing systematic secret detention after 11 September 2001. Occlusion of the full truth includes the ongoing classification of information about that torture as classified information, including detainees’ own recollections and experiences.²⁷ Counter-terrorism justified the most egregious of human dignity violations. The practice of waterboarding (simulated drowning) was legally justified and brutally carried out in “black sites” controlled by the United States. Detainees were placed in coffin-like or closed box-like structures for extended periods of time to induce fear, claustrophobia and physical pain. Detainees were subject to extreme cold, stripped naked, inadequately clothed, given no bedding, denied medical treatment for pre-existing and new injuries, not given humane toiletry access, tightly chained to fixed objects, deprived of food and water, subjected to extreme sleep deprivation, forced to hold unbearable stances for long durations and subject to harsh, continuous noises while in detention. Detainees were violently slapped, shaken, subject to mock executions, kicked, thrown to the ground, and set upon by multiple agents simultaneously to deliberately injure in concerted action. Detainees were told that multiple serious harms would befall their family members including physical violence, economic distress, social shaming and sexual violence. Detainees were kept in solitary confinement, many for months at a time. Detainees were stripped naked, ridiculed, sexually taunted and humiliated. They had their private sexual organs touched and harmed. They were not allowed to pray and taunted for their religious beliefs and practices. Medical personnel enabled and sustained torture practices.²⁸ Some detainees were subjected to anal penetration by objects, actions which amount to sexual violation and appear to reach the threshold for rape as set out under the International Criminal Court Statute.²⁹ By way of illustration, it is known that the detainee Abu Zubaydah, who has been held without any legal charge by the United States for over 20 years, was subjected to the barbaric practice of waterboarding 83 times in the month of August 2002 alone.³⁰

26. For example, memorandum from John C. Yoo on the President’s constitutional authority to conduct military operations against terrorists and nations supporting them to Timothy Flanigan, the Deputy Counsel to the President (25 September 2001); memorandum to William J. Haynes II, General Counsel, Department of Defense (28 December 2001); memorandum from John Yoo and Robert J. Delabunty on the application of treaties and laws to detainees to William J. Haynes II (9 January 2002); memorandum on standards of conduct for interrogation under 18 U.S.C. §§ 2340–2340A to Alberto R. Gonzales, Counsel to the President (1 August 2002). ↩
27. The Special Rapporteur recognizes movement by the Government of the United States towards the declassification of torture and detention evidence. See, e.g., the executive order on the declassification review of certain documents concerning the terrorist attacks of September 11, 2001 (3 September 2021); letter from the acting Solicitor General Brian Fletcher to Scott Harris regarding United States v. Husayn, No. 20-827 (15 October 2021). However, where testimony is classified, the Special Rapporteur warns that such classification may prevent adequate legal defence and full psychological treatment to those who experienced the harm of egregious and systematic torture. ↩
28. In abject breach of the World Medical Assembly guidelines for physicians concerning torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment (Declaration of Tokyo), adopted by the twenty-ninth World Medical Assembly in 1975, and reaffirmed in 2005, 2006 and 2016. ↩
29. Rome Statute of the International Criminal Court, arts. 7 (1) (g), 8 (2) (b) (xxii) and 8 (2) (e) (vi). The scale of sexual harm to detainees can be partially gleaned by the use of the following terms in the significantly redacted United States Senate Select Committee on Intelligence report on torture: “sex”, “genital”, “nudity”, “naked”, “rape”, “diaper”, “sodomy”, “HIV”, “rectal”, “rough takedown”, and “female”. See e.g. the following: “Findings and conclusions”, p. 3 of 19; “Executive summary”, p. 51 of 499. ↩
30. See https://www.justice.gov/sites/default/files/olc/legacy/2013/10/21/memo-bradbury2005.pdf. ↩

The study documents the actions of numerous countries that collaborated with the Government of the United States to allow capture of individuals (proxy detention),³¹ hosted secret jails (“black sites”), interrogated persons at the request and sometimes with the oversight of United States personnel, enabled covert prisoner transfers (renditions) to take place through their airports and borders, facilitated medical and other operational assistance, and covered up for the violations that had taken place on their territory by refusing to share or release information related to the detention, disappearance and torture. Private actors were also complicit in rendition and torture. Accountability for the commission of grave violations of international law remains the responsibility of those States upon whose territory violations were committed.

31. A/HRC/13/42, paras. 141–158. ↩

The study further documents the persistent use of secret detention in multiple countries justified by the discourse of countering terrorism nationally and regionally. Such countries included Algeria, China, the Democratic Republic of the Congo, Egypt, Equatorial Guinea, Eritrea, the Gambia, India, Iran (Islamic Republic of), Iraq, Israel, Jordan, Libya, Nepal, Pakistan, the Philippines, the Russian Federation, Saudi Arabia, Sri Lanka, the Sudan, the Syrian Arab Republic, Turkmenistan, Uganda, Uzbekistan, Yemen and Zimbabwe.³² The Working Group on Arbitrary Detention has consistently issued communications about practices of arbitrary detention authorized or enabled since 2010 by counter-terrorism or national security justifications in these countries.³³ Ongoing practices of secret detention and transfer violating fundamental human rights involving many of these States continue to concern the special procedures of the Human Rights Council as evidenced by the 2021 report of the Working Group on Enforced or Involuntary Disappearances.³⁴ The Special Rapporteur highlights two countries, namely China and the Syrian Arab Republic, where she has profound contemporary concerns about systematic and mass use of secret detention on the territory of those States, implicating multiple and systematic human rights violations.³⁵

32. Ibid., paras. 168–201, 203–206, 208–214, 216–250 and 252–281. ↩
33. Algeria (A/HRC/WGAD/2012/49, A/HRC/WGAD/2014/17 and A/HRC/WGAD/2017/34); China (A/HRC/WGAD/2017/59, A/HRC/WGAD/2017/69 and A/HRC/WGAD/2018/62); Democratic Republic of Congo (A/HRC/WGAD/2018/23); Egypt (A/HRC/WGAD/2016/60, A/HRC/WGAD/2017/78 and A/HRC/WGAD/2018/47); Iran (Islamic Republic of) (A/HRC/WGAD/2016/2 and A/HRC/WGAD/2017/48); Iraq (A/HRC/WGAD/2016/29, A/HRC/WGAD/2017/32 and A/HRC/WGAD/2018/38); Israel (A/HRC/WGAD/2016/15 and A/HRC/WGAD/2017/31); Jordan (A/HRC/WGAD/2016/9, A/HRC/WGAD/2017/17 and A/HRC/WGAD/2017/46); Libya (A/HRC/WGAD/2017/6 and A/HRC/WGAD/2018/39); Pakistan (A/HRC/WGAD/2018/11); Saudi Arabia (A/HRC/WGAD/2015/13, A/HRC/WGAD/2017/63 and A/HRC/WGAD/2018/10); Sri Lanka (A/HRC/WGAD/2011/49, A/HRC/WGAD/2013/9 and A/HRC/WGAD/2013/48); Sudan (A/HRC/WGAD/2015/9 and A/HRC/WGAD/2016/34); Syrian Arab Republic (A/HRC/WGAD/2013/43 and A/HRC/WGAD/2014/36); Turkmenistan (A/HRC/WGAD/2010/15); Uzbekistan (A/HRC/WGAD/2013/4); Yemen (A/HRC/WGAD/2014/13, A/HRC/WGAD/2014/42 and A/HRC/WGAD/2015/2); and Zimbabwe (A/HRC/WGAD/2017/82). ↩
34. A/HRC/48/57. ↩
35. See e.g. communications CHN 18/2020 and CHN 4/2021 and Government replies. See also 57 letters to States from various special procedures to States (available at www.ohchr.org/EN/Issues/Terrorism/Pages/return-and-repatriation-foreign-fighters-and-their-families.aspx). ↩

The scale of human rights violations implicated by the systematic and legalized use of secret detention and torture following the events of 11 September 2001 demand specific individual, State and inter-State accountability. Such accountability is the sine qua non of future prevention of torture and secret detention prevention. It is imperative to hold individuals, institutions and States accountable not only to prevent impunity but also as an essential aspect of the guarantee of non-recurrence. Systematic violations of non-derogable human rights do not have an end date. The abject failure of Governments to address criminal justice and reparations obligations from these practices does not lessen claims for human rights violations and may in fact, over time, augment the scope of violations so that the widespread or systematic threshold requirement of crimes against humanity is firmly established.

Courts play an essential role in defending the rule of law, particularly during times of emergency when States may seek to utilize exceptional measures to respond to perceived or actual national security threats. The Special Rapporteur recognizes that some domestic courts have performed a highly effective, diligent and commendable role in preventing secret detention and/or holding security actors and other State actors to account for practices that amount to secret detention, or transfer between legal systems without adequate human rights protections.³⁶ Regrettably, however, many national courts have been highly ineffective and at times complicit in secret detention practices, providing significant legal cover for State abuses. The elevated degree of deference paid by judicial bodies to State actors engaging in egregious and well-documented rights violations through State torture and rendition brings shame in particular to judiciaries that otherwise pride themselves on upholding the rule of law and protecting against barbarism by State officials. The variable deference given to State practices is illustrated by the case concerning Maher Arar, a dual citizen of Canada and the Syrian Arab Republic, who was en route to his home in Canada when he was detained in New York and held without charge for 12 days before being rendered to the Syrian Arab Republic via Jordan. In subsequent legal proceedings the United States District Court for the Eastern District of New York held – and the Second Circuit affirmed – that Arar could not sue United States government officials due to national security and foreign policy considerations.³⁷ At the same time, Canada launched a public inquiry, issued a public apology for its role in Mr. Arar’s rendition and torture and reached a settlement of 10 million Canadian dollars with him.

36. See e.g. England and Wales Court of Appeal, R (on the application of Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs: cases No. EWCA Civ 65, 10 February 2010, and No. EWCA Civ 158, 26 February 2010. See also England and Wales High Court, Al Rawi and others v. The Security Service and others: cases No. EWHC 2959, 18 November 2009; No. EWHC 1496 (QB), 21 June 2010; and No. EWCA Civ 482, 4 May 2010; and Supreme Court of the United Kingdom, case No. UKSC 34, 13 July 2011. ↩
37. See the case of Arar v. Ashcroft. The Special Rapporteur recognizes that certain landmark decisions by the United States Supreme Court (cf. Boumediene v. Bush) have addressed some legal lacunae in the regulating of detainee status. ↩

Regional courts have played a particularly valuable role in seeking accountability for detention and rendition in the post-11 September 2001 counter-terrorism context. The European Court of Human Rights has played a singularly important and commendable role in identifying State responsibility for secret detention and the torture and other cruel, inhuman and degrading treatment or punishment that has accompanied it. The Court has found violations of fundamental rights in many individual cases adjudicating the harms experienced by victims of extraordinary rendition and torture. For instance, in Al-Nashiri v. Romania, the Court found that the authorities who facilitated Mr. Al-Nashiri’s transfer out of Romania for trial in the United States were likely aware of “widely expressed public concern” that a trial before the United States military commission would not culminate in a fair trial. Despite the “real and foreseeable risk” that Mr. Al-Nashiri could face a “flagrant denial of justice”, Romania assisted his transfer from its territory, breaching Mr. Al-Nashiri’s right to a fair trial.³⁸ In the Al-Nashiri case, the Court also found that Romania had assisted the Central Intelligence Agency of the United States to transfer Mr. Al-Nashiri to the United States military commission’s jurisdiction, where he had been indicted and was on trial facing the death penalty.³⁹ The Court has found Italy, Lithuania, the former Yugoslav Republic of Macedonia (as it was called at the time of the Court’s ruling) and Poland complicit in the torture and enforced disappearance of detainees in United States rendition and secret detention programmes.⁴⁰ The Court has also taken a proactive and positive approach to remedies in some extraordinary rendition cases. For example, as a part of the remedy awarded to Mr. Al-Nashiri, the Court ordered that Romania seek assurances from the United States that Mr. Al-Nashiri would not suffer the death penalty.⁴¹

38. European Court of Human Rights, “Romania committed several rights violations due to its complicity in CIA secret detainee programme”, press release, ECHR 196 (2018), 31 May 2018. ↩
39. See https://irct.org/what-we-do/rehabilitation-of-torture-victims. See also European Court of Human Rights, El-Masri v. the former Yugoslav Republic of Macedonia, application No. 39630/09, Judgment, 13 December 2012; Nasr and Ghali v. Italy, application No. 44883/09, Judgment, 23 February 2016; Al-Nashiri v. Romania, application No. 33234/12, Judgment, 31 May 2018; and Abu Zubaydah v. Lithuania, application No. 46454/11, Judgment, 31 May 2018. ↩
40. See www.amnesty.org/en/latest/news/2022/01/20-years-biden-must-close-guantanamo/. ↩
41. Ibid. When the Court ordered the judgment, Mr. Al-Nashiri’s case was still pending before the United States military commission, and at time of writing was still pending. ↩

In its regional context, the Inter-American Court has also illustrated judicial mettle in addressing torture and secret detention and mandating adequate remedy and reparations for victims.⁴² The Court considers both the prohibition on enforced disappearances and the obligation to investigate as having attained the status of jus cogens. The Court also holds the position that the systematic practice of enforced disappearances amounts to a crime against humanity. The Inter-American Commission on Human Rights has also made significant interventions regarding the continued detention of persons at Guantánamo Bay, setting out the international legal basis that mandates closure of the detention facility.⁴³

42. See Inter-American Court of Human Rights, Baldeón-García v. Perú, Judgment, 6 April 2006. The Court ordered Peru to publish the Court’s judgment (paras. 194 and 218 (9)) and to investigate, identify, prosecute and punish those responsible for the death of Mr. Baldeón-García (paras. 195–203 and 218 (8)). The Court also ordered the highest-ranking State authorities to publicly apologize and assume liability for the murder of Mr. Baldeón-García (paras. 204 and 218 (10)). ↩
43. Inter-American Commission on Human Rights, Towards the Closure of Guantánamo, OAL/Ser.L/V/II, Doc. 20/15, 3 June 2015, para. 3. ↩

The abject lack of criminal accountability for the practice of systematic torture and rendition is inconsistent with States’ international law obligations. Despite a plethora of evidence, including from former detainees, allied with the public identification of those who authorized, enabled and carried out systematic practices of torture and rendition, there appears to be a “pact of forgetting”, a collective amnesia as regards the responsibility to account for past serious violations of international law. In particular, the tendency of new political administrations to emphasize moving forward without fully accounting for and taking responsibility for the State’s past wrongdoings is deeply regrettable.⁴⁴ The Special Rapporteur acknowledges the importance of independent parliamentary investigations and oversight into rendition and torture practices, affirming, for instance, the value of the investigation conducted by the United States Senate Select Committee on Intelligence.⁴⁵ She regrets that numerous States have evidenced no interest in holding persons responsible for facilitating or carrying out acts of torture. She underscores that there is no international statute of limitations on serious breaches of international law, that the jus cogens status of torture means that persons responsible may be subject to universal jurisdiction, and that continued and sustained attention to the scale and impact of these harms will not diminish over time.

44. See e.g. United States Department of Justice, “Attorney General Eric Holder regarding a preliminary review into the interrogation of certain detainees”, 24 August 2009. ↩
45. See www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf. ↩

The scale and consequences of secret detention and its associated practices for individuals and their families underscores the necessity of comprehensive reparations and remedy. The failure to provide such remedy following detention and torture functions as a secondary harm in its own right. An essential starting point to remedy is to identify precisely and publicly how many individuals were subject to these practices.⁴⁶

46. This would include providing information on how many persons have had a remedy for torture. This question was posed to the United States in its appearance before the Committee against Torture by country rapporteur Jens Modvig in 2014. Transcript available at www.scribd.com/doc/247753774/CAT-Complete-Transcript. ↩

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 14) and the collective jurisprudence of regional and international courts require reparations from harm committed in breach of human rights treaty obligations. Reparations for victims of torture can include criminal penalties for those responsible, compensation, rehabilitation, measures of non-repetition, restitution and satisfaction. Compensation should be prompt, fair and adequate, covering “any economically assessable damage,” including medical expenses, loss of earnings and lost educational opportunities.⁴⁷ Measures of non-repetition, which may include mechanisms to monitor future abuses, strengthening the independence of the judiciary, and changes in legislation or policy, should actively address any cultures of impunity.⁴⁸ Similarly, satisfaction and the right to truth, which recognizes the harm suffered by the victims, is a reparative measure designed to prevent ongoing and future violations, and may include sanctions, formal declarations and apologies, and memorials and tributes to the victims.⁴⁹

47. Committee against Torture, general comment No. 3 (2012), para. 10. ↩
48. Ibid., para. 18. ↩
49. Ibid., para. 16. See also Clara Sandoval Villalba, “Rehabilitation as a form of reparation under international law”, December 2009. ↩

Rehabilitation, on the other hand, is a process. It recognizes that victims may need medical, psychological, legal and social services to restore their independence and full participation in society.⁵⁰ To promote victim agency, rehabilitative measures should address individual needs in the context of their cultural, social and political background.⁵¹ Ultimately, reparations for victims of torture and extraordinary rendition must be comprehensive, incorporating the full scope of measures required to redress violations.⁵²

50. General comment No. 3 (2012), para. 11. ↩
51. See https://irct.org/what-we-do/rehabilitation-of-torture-victims. ↩
52. General comment No. 3 (2012), para. 2. ↩

By recognizing that torture destroys a victim’s sense of dignity, and therefore threatens the very concept of liberty underlining all rights bearing societies, comprehensive reparations must address the substantive barriers to liberty. This includes compensation, education, housing assistance, medical care and access to job training, all of which raise the standard of living of victim groups, promoting their survival and participation in society.⁵³ Therefore, a comprehensive reparations package, for the victim, their family and their community, constitutes the State’s recognition that the dignity and liberty of all persons is a fundamental human right.

53. Ibid., paras. 10–13. ↩

Adequate reparation includes an obligation to compensate individual victims as appropriate and proportionate to the violation in each case.⁵⁴ When violations of non-derogable and jus cogens norms occur combined with systematic violations, monetary compensation is a necessity. Monetary compensation can be for pecuniary damage (monetary harm), non-pecuniary damage (moral injury), and costs and expenses.⁵⁵ Some countries have given monetary compensation for rendition and torture practices although it is notable that the process of securing such remedy is arduous and has been the exception rather than the rule.⁵⁶ While monetary compensation is far from restitutio in integrum, it is an important recognition of the harms experienced by both direct and indirect victims of secret detention. The Special Rapporteur notes with profound concern that, while in some cases monetary awards have been awarded to a small number of persons who were subject to rendition and torture in post-11 September 2001 secret detention cases,⁵⁷ their access to funds has been denied in practice because they remain incarcerated in Guantánamo Bay or remain designated on terrorism watchlists despite there never having been a human rights-compliant determination of any alleged criminal acts.

54. See the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. ↩
55. See e.g. European Court of Human Rights, Ringeisin v. Austria, application No. 2614/65, Judgment, paras. 107–109. ↩
56. See e.g. the United Kingdom settlement of 500,000 British pounds to Fatima Boudchar, a victim of the Central Intelligence Agency rendition programme who was kidnapped and tortured when she was four and a half months pregnant and released shortly before giving birth. In 2005, the Swedish investigation of the rendition of Mohammed El-Zari and Ahmed Agiza, both Egyptian citizens, found violations by the Swedish police of art. 3 of the European Convention on Human Rights. The Chancellor of Justice ordered 3,160,000 Swedish krona be paid to Mr. El-Zari as compensation in 2008. A similar amount was paid to Mr. Agiza. ↩
57. See European Court of Human Rights, Al-Nashiri v. Romania, application No. 33234/12, Judgment, 31 May 2018 (100,000 euros awarded); Al-Nashiri v. Poland, application No. 28761/11, Judgment, 24 July 2014 (100,000 euros awarded); Husayn (Abu Zubayday) v. Poland, application No. 7511/13 Judgment, 24 July 2014 (100,000 euros awarded); El-Masri v. the former Yugoslav Republic of Macedonia (60,000 euros awarded); and Zubaydah v. Lithuania. ↩

Regional human rights courts have recognized that monetary compensation is an insufficient remedy at the individual level and structural level to function as a barrier to ongoing or future harm.⁵⁸ An array of measures are being deployed, including ordering the reopening of criminal proceedings; requesting injunctive relief in arbitrary detention cases; and mandating robust assurances and oversight to prevent harms to persons being transferred from one territory to another. For example, in Al-Nashiri v. Poland, the European Court of Human Rights identified diplomatic assurances as an individual measure affirming that they were especially applicable in extraordinary rendition cases, given that the victim was exposed to a serious risk of ill-treatment or the death penalty in another country and that such renditions lacked any process or protection of law.⁵⁹ The Court in this case required Poland to take all possible steps to obtain diplomatic assurances from the United States that the individual rendered through Poland would not be subject to torture or serious ill-treatment.⁶⁰

58. European Court of Human Rights, Papamichalopoulos v. Greece, application No. 14556/89, Judgment, 24 June 1993. ↩
59. Al-Nashiri v. Poland, paras. 588–589. ↩
60. Ibid., para. 587. ↩

The joint study recommended that secret detention be strictly prohibited by national law.⁶¹ Regretfully, little significant progress has been made on this recommendation from the majority of States whose practices were directly addressed in the joint study.⁶² In a positive step, some countries have moved decisively to domesticate torture crimes. For example, through the Crimes Legislation Amendment Act of 2010, Australia has set the penalty for torture at a 20-year term of imprisonment.63 55 See e.g. European Court of Human Rights, Ringeisin v. Austria, application No. 2614/65, Judgment, paras. 107–109. 56 See e.g. the United Kingdom settlement of 500,000 British pounds to Fatima Boudchar, a victim of the Central Intelligence Agency rendition programme who was kidnapped and tortured when she was four and a half months pregnant and released shortly before giving birth. In 2005, the Swedish investigation of the rendition of Mohammed El-Zari and Ahmed Agiza, both Egyptian citizens, found violations by the Swedish police of art. 3 of the European Convention on Human Rights. The Chancellor of Justice ordered 3,160,000 Swedish krona be paid to Mr. El-Zari as compensation in 2008. A similar amount was paid to Mr. Agiza. 57 See European Court of Human Rights, Al-Nashiri v. Romania, application No. 33234/12, Judgment, 31 May 2018 (100,000 euros awarded); Al-Nashiri v. Poland, application No. 28761/11, Judgment, 24 July 2014 (100,000 euros awarded); Husayn (Abu Zubayday) v. Poland, application No. 7511/13 Judgment, 24 July 2014 (100,000 euros awarded); El-Masri v. the former Yugoslav Republic of Macedonia (60,000 euros awarded); and Zubaydah v. Lithuania. 58 European Court of Human Rights, Papamichalopoulos v. Greece, application No. 14556/89, Judgment, 24 June 1993. 59 Al-Nashiri v. Poland, paras. 588–589. 60 Ibid., para. 587. 61 A/HRC/13/42, para. 292 (a). 62 According to a Oxford Pro Bono Publico, which confirmed the lack of express legislation or statutory instruments in a number of countries. 63 Australia, Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010, pt. 1 § 274.1(1)–(2).

61. A/HRC/13/42, para. 292 (a). ↩
62. According to a Oxford Pro Bono Publico, which confirmed the lack of express legislation or statutory instruments in a number of countries. ↩

The joint study also recommended that States ratify the Optional Protocol to the Convention against Torture and establish independent national preventive mechanisms that are compliant with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). Unfortunately, progress on robust and adequately resourced preventive mechanisms remains nascent in a number of countries listed in the joint study.⁶⁴

64. A/HRC/43/46/Add.1. ↩

The legacy of secret detention and torture does not exist in a distant past. Harms continue to be experienced to the present.⁶⁵ The Special Rapporteur acknowledges that the United States executive branch has made commitments to transfer eligible detainees from the detention facility at Guantánamo Bay and to close the facility.⁶⁶ A total of 38 Muslim men still remain detained at the detention facility,⁶⁷ at an estimated cost of $540 million per year, or $13 million per detainee. Many of these men are entering their twentieth year in the custody of the United States. Many of the men are torture survivors. Twelve of them have been charged⁶⁸ with terrorism-related crimes and are being processed through the military commission system, which in the view of the Special Rapporteur may fail to meet the requirements of fair trial and procedure required by international law.⁶⁹ By their very construction – as specially constituted, exceptional bodies with more permissible evidentiary and procedural standards than criminal courts, including vis-à-vis classified evidence – the military commissions infringe upon equal protection rights and fair trial guarantees, including the right to a fair and public hearing by a competent, independent and impartial tribunal.⁷⁰ Moreover, the continued, indefinite detention of certain detainees without charge or trial plainly contravenes the minimum guarantee of a trial without undue delay. The Special Rapporteur on torture, supported by this mandate, has determined that the ongoing conditions at Guantánamo Bay constitute circumstances that meet the threshold of torture and other cruel, inhuman and degrading treatment or punishment under international law.⁷¹ These men live with the profound psychological and physical trauma of torture. No adequate torture rehabilitation programme has been made available to them, and the continuation of their detention in the site where they experienced such profound violations constitutes an unrelenting violation of their fundamental and non-derogable human rights.⁷² These men are aging rapidly and have increasingly complex medical conditions, including severe coronary vascular disease, complex post-traumatic stress disorder and traumatic brain injury.⁷³ The resources needed to address their medical and psychosocial needs are not available at the detention facility.⁷⁴ Their continued detention in this facility is inconsistent with the international law obligations of the United States. Recognizing that the United States Congress has acted to thwart the transfer of these individuals to the United States mainland and to certain enumerated foreign countries,⁷⁵ the entire range of options available to the United States executive branch should be activated to ensure resolution of their detention, including release, transfer with adequate human rights assurances, reparations for harm and ongoing human rights monitoring in countries of nationality or safe third countries if non-refoulement concerns mean resettlement elsewhere.

65. OHCHR, “Guantanamo Bay: ‘Ugly chapter of unrelenting human rights violations’ – UN experts”, 10 January 2022. ↩
66. See, e.g., The White House, “Background press call by senior administration officials on Guantanamo Bay”, press briefing, 19 July 2021; United States Executive Order 13492 (22 January 2009). ↩
67. On 17 February 2022, the United States announced that a seriously mentally ill detainee, Mr. Al-Qahtani, who had been subject to prolonged torture in custody, would be transferred to Saudi Arabia in the coming months. They noted further the transfer of Abdul Latif Nasser from Guantánamo to Morocco in July 2021. He was immediately arrested on return on suspicion of committing terrorist acts. His release was “subject to security and humane treatment assurances” (www.defense.gov/News/Releases/Release/Article/2698321/guantanamo-bay-detainee-transfer-announced/). The Special Rapporteur notes her concerns about the functionality of such assurances in preventing further harm. ↩
68. Only 1 per cent of all prisoners ever held at Guantánamo Bay have thus far been convicted by a military commission; in two of those eight cases, the conviction on charges of providing material support was subsequently overturned on appeal by federal courts. ↩
69. The Special Rapporteur singles out in particular the trial associated with the 11 September 2001 attacks as: profoundly flawed, including by lacking equality of arms, predictability and clarity of legal process; insufficiently independent of the executive; and not meeting the rights of the victims of terrorism to a speedy and fair resolution of the violation of their rights. ↩
70. International Covenant on Civil and Political Rights, art. 14. See also Fionnuala Ni Aoláin and Oren Gross, eds. Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (Cambridge University Press, 2013), chaps. 6–7 and 14–15. ↩
71. See communications USA 5/2020, USA 17/2020, USA 22/2017, USA 20/2013 and USA 32/2012 and Government replies. ↩
72. The Special Rapporteur highlights the relevance of the judicial concept of continuous violation, developed in European regional human rights treaty jurisprudence. See e.g. European Court of Human Rights, Loizidou v. Turkey, application No. 15318/89, Judgment, 18 December 1996. ↩
73. Centre for Victims of Torture and Physicians for Human Rights, Deprivation and Despair: The Crisis of Medical Care at Guantánamo (2019). ↩
74. For example, any condition that requires magnetic resonance imaging, computerized tomography scans or cardiac catheterization cannot be treated adequately at the detention facility. ↩
75. United States law S. 1605, National Defense Authorization Act for Fiscal Year 2022, sects. 1032 and 1033. ↩

Consistent with her focus on the consequences of counter-terrorism measures on the rights of women, girls and families, the Special Rapporteur draws attention to the unrelenting rights violations experienced by the families of persons subject to rendition and torture. Families of persons detained, disappeared, tortured and imprisoned for years without trial have experienced unending violations of their right to family and intimate life, practices which should not be tolerated by civilized societies.⁷⁶ Children have grown up without fathers, the most intimate parts of family life have been destroyed and life rituals and cycles have been lost. No remedy can compensate adequately for these incommensurable losses. The 2010 joint study rightly identified the families of individuals subject to secret detention as victims in their own right,⁷⁷ and the Special Rapporteur concurs with that view, underscoring that the harms to families, spouses and children have only augmented over time. She emphasizes that family members of persons detained in contexts justified by counter-terrorism must be informed of the capture, location and legal status of their relatives. Families are entitled to regular updates on the health of their family members and are to be given the right to participate meaningfully in medical decision-making for family members who remained detained.⁷⁸ Reparation and remedy is due to family members for the harms endured in their own right because of secret detention and the treatment suffered as a result.

76. A/HRC/46/36, para. 12. ↩
77. A/HRC/13/42, para. 29. ↩
78. Ibid., para. 292 (c). ↩

Over the course of the past 20 years, hundreds of men have been transferred out of the detention facility at Guantánamo Bay.⁷⁹ Some were returned to countries of nationality, others to agreed third countries. Countless others were transferred from “black sites” to third countries or countries of nationality where they experienced further egregious human rights violations. For these men, the scale and consequences of their prior and ongoing human rights violations is forgotten and largely ignored. Transfers of these detainees were often informal, operating as matter-of-fact systems between Governments and security and intelligence services to move persons from one country to another with a view to enabling or maintaining detention and/or torture practices. As knowledge of secret detention became widespread, and Governments were required to account in some way for the persons over whom they had effective control, transfers were facilitated by a variety of means including extradition,⁸⁰ assurances and expulsions.⁸¹ In all contexts, informal and formal transfers of persons previously subject to secret detention has raised serious human rights concerns, many ongoing and unresolved.

79. The New York Times, “The Guantánamo docket”. As of 7 March 2022, 742 transfers had been confirmed. ↩
80. In the UNODC “Model law on extradition”, “extradition” is defined as “the surrender of any person who is sought by the requesting State for criminal prosecution for an extraditable offence or for the imposition or enforcement of a sentence in respect of such an offence” (p. 8). ↩
81. See International Commission of Jurists, Transnational Injustices: National Security Transfers and International Law (2017). ↩

Life after Guantánamo has been described by former detainees as “its own kind of prison”.⁸² Transfers often led to further imprisonment under harsh high-security regimes or in rehabilitation centres, raising fundamental concerns about the protection of fundamental rights and the adequacy of judicial oversight.⁸³ For those resettled in third countries where they had no family, cultural, social or economic ties, the process of establishing a normal and dignified life has been painful and obstructed by structural and administrative barriers. In multiple cases, those resettled subsist with precarious immigration status, lack of national identification papers, and limited access to social security and medical care compounding ongoing insecurities and fears.⁸⁴ In no case that the Special Rapporteur has reviewed has there been adequate and ongoing medical care, including psychological treatment, provided to individuals who were systematically tortured and subject to rendition (see annex). Individuals face ongoing surveillance. Many are on “no-fly” lists, unable to leave the country to which they have been settled; most have struggled to maintain family and intimate relationships and to make up the educational and social deficits that followed directly from their rendition and torture. Few have been able to thrive economically, many face penury and all suffer long-term trauma from the violence and harms they experienced. The Governments responsible for their torture and rendition have been largely unresponsive or dismissive of any reparations or remedy claims these men have.

82. Narratives and books by former prisoners have given detailed insight into their conditions of living; see e.g. Abigail Hauslohner, “No escape from Guantánamo”, 7 January 2022. See also European Center for Constitutional and Human Rights, “Rupture and reckoning: Guantánamo turns 20” (2022). ↩
83. A/HRC/40/52/Add.2, para. 58. ↩
84. Noting the cases of Mr. Quraishi and Mr. Al-Gbari, who were transferred from Guantánamo Bay to Kazakhstan, both were detained without trial for 10 years, and despite assurances, they do not to this day have clear legal status (A/HRC/43/46/Add.1, para. 54). ↩

More broadly, the Special Rapporteur observes with great concern that secret detention has evolved in the past two decades to encompass more complex and multifaceted forms of formally lawful transfer. Extradition, rendition to justice, extraterritorial operations, expulsion and the use of diplomatic assurance have become essential tools for States in counter-terrorism and national security contexts.⁸⁵ The Special Rapporteur recognizes the value of formal legal processes, such as extradition, to address crimes that relate to gross violations of human rights including torture, crimes against humanity, disappearances and war crimes, in particular when there is an obligation for States to prosecute or extradite an accused person for prosecution. She is deeply concerned about the by-passing of such formal extradition arrangements in counter-terrorism and national security cases,⁸⁶ and about the weakening of human rights guarantees in extradition proceedings.⁸⁷ Her concerns are amplified by the lack of a globally agreed definition of terrorism and (violent) extremism, and by the widespread failure to define acts of terrorism in concrete and precise ways in national legislation.⁸⁸ The result has been an increasingly evident practice of transfers justified under the banner of countering terrorism or extremism that engage non-refoulement concerns and result in the transfer of persons who have in fact engaged in activities that are protected under international law, including expression, assembly and participation in public affairs.⁸⁹ She is particularly concerned at the scale and consequences of such practices involving the Russian Federation and countries in the Commonwealth of Independent States. She highlights that the practices of lawful transfer appear to target minorities, religious and ethnic groups and, as such, raise profiling and non-discrimination concerns.⁹⁰

85. The Special Rapporteur notes the language of the General Assembly urging all States to cooperate with one another, including regarding the extradition or prosecution of international terrorists (General Assembly resolution 34/145). ↩
86. While it is not mandatory under international law to have an extradition treaty in place to enable transfer, she stresses that such arrangements must conform with other international legal obligations. ↩
87. Zhakhongir Maksudov and others v. Kyrgyzstan (CCPR/C/93/D/1461,1462,1476&1477/2006), para. 10.2. ↩
88. The Special Rapporteur’s comments on legislation and policy found here: www.ohchr.org/EN/Issues/Terrorism/Pages/LegislationPolicy.aspx. ↩
89. See e.g. Toirjon Abdussamatov and others v. Kazakhstan (CAT/C/48/D/444/2010). ↩
90. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters prohibits extradition where there are reasonable grounds to believe that the request has been undertaken for the purpose of persecution on the grounds of race, sex, religion, ethnicity or political opinion. ↩

The Special Rapporteur further observes significant resort to the use of diplomatic assurances in counter-terrorism and national security transfers, as States seek to discharge their obligations of non-refoulement. Here the requesting State seeks written guarantees from the authorities of the destination State undertaking that the person concerned will not be subject to certain practices. She acknowledges that diplomatic assurances have played a positive role in preventing the application of the death penalty in transfer cases.⁹¹ However, in general, she takes the view that the practice of diplomatic assurances in counter-terrorism and national security-related transfers has been largely ineffective and quite cynical in seeking to circumvent fundamental treaty and customary law obligations.⁹² She notes that such assurances are never enforceable, as they do not typically have legal effect and are not justiciable. Multiple United Nations human rights entities have made clear that such assurances do not relieve States of their non-refoulement obligations, and thus do not permit transfers that would otherwise be prohibited.⁹³

91. See e.g. cases of Alexanda Kotey and El Shafee Elsheikh. ↩
92. A/60/316. ↩
93. CAT/C/USA/CO/2, para. 21; A/HRC/13/39/Add.5, para. 243–244; A/HRC/4/88; Agiza v. Sweden (CAT/C/34/D/233/2003); and Alzery v. Sweden (CCPR/C/88/D/1416/2005). ↩

The joint study surveyed the practices of multiple countries engaged in secret detention and rendition, which shed significant light on what can only be considered as a pattern of externalization of measures adopted in the name of counter-terrorism aimed at displacing States’ human rights obligations to circumvent accountability processes. One consequence of the study was to illustrate the pervasive and widespread effect that a permissive global environment led by powerful States has on the normalization and entrenchment of secret detention as an accepted practice. The study revealed the breadth and scope of secret detention and rendition and the failures of multiple States to act on their international and domestic law obligations to prevent such practices. A resounding concern of the present follow-up report is the lived reality of ongoing arbitrary detention; the failure to prosecute those responsible for grave violations of international law; de facto amnesty for scores of persons who have authorized, enabled or committed systematic torture; and the lack of bright lines being drawn to ensure that such practices are fundamentally unacceptable and will not be tolerated by civilized societies. The failure to address the legacy and responsibility for the past has created an enabling and permissive global environment in which mass arbitrary detention, systematic torture and other cruel, inhuman and degrading treatment or punishment and the spectre of detention from cradle to grave is tolerated. Two specific examples illustrate the Special Rapporteur’s profound concern that the failure to address the recommendations made in the 2010 study have a direct relationship to contemporary tolerance for a similar scale and type of violations.

The establishment of multiple detention sites in the north-eastern part of the Syrian Arab Republic has a complex history. These detention sites are currently predominantly administered by non-State actors, including the Syrian Democratic Forces, although there are reports of detention carried out by, or at the behest of, foreign Governments.⁹⁴ There are multiple known and unknown sites of detention in the territory in which thousands of men, women and children are detained without any legal process and subject to conditions which the Special Rapporteur finds meet the threshold for torture and other cruel, inhuman and degrading treatment or punishment under international law.⁹⁵ The maintenance of these individuals in a legal limbo, a human rights black hole, detained by unrecognized authorities, for which no State is willing to take any human rights responsibility, finds roots in the extraterritorial practices of rendition and secret detentions abroad described in the 2010 study.

94. See communication TUN 6/2021. ↩
95. See communications AFG 3/2020, ALB 1/2021, DZA 1/2021, AUS 1/2021, AUT 1/2021, AZE 2/2021, BGD 1/2021, BEL 1/2021, BIH 1/2021, CAN 1/2021, CHN 1/2021, DNK 1/2021, EGY 1/2021, EST 1/2021, FIN 1/2021, FRA 6/2020, GEO 1/2021, DEU 3/2021, IND 1/2021, IDN 1/2021, IRN 30/2020, KAZ 2/2021, KGZ 1/2021, LBN 1/2021, LBY 1/2021, MYS 3/2020, MDV 1/2021, MAR 1/2021, NLD 1/2021, MKD 1/2021, NOR 1/2021, PAK 14/2020, PHL 2/2021, POL 1/2021, PRT 1/2021, ROU 2/2021, RUS 1/2021, SAU 14/2020, SEN 1/2021, SRB 1/2021, SOM 2/2020, ZAF 1/2021, ESP 1/2021, PSE 1/2021, SDN 1/2021, SWE 1/2021, CHE 1/2021, TJK 1/2021, TTO 1/2021, TUN 1/2021, TUR 2/2021, UKR 1/2021, GBR 2/2021, USA 8/2021, UZB 1/2021, VNM 1/2021 and YEM 4/2020 and Government replies. ↩

In 1991, Al-Hawl camp was established by the United Nations High Commissioner for Refugees to hold approximately 15,000 people. It expanded further in the early 2000s. In 2018, the camp hosted approximately 10,000 individuals, largely Iraqi nationals, but that number grew to approximately 73,000 between December 2018 and March 2019, largely surpassing the capacity, due to the further deprivation of liberty of a large number of persons fleeing conflict in the territory. It is estimated that in Al-Hawl, approximately 11,000 detainees are third country nationals and over 94 per cent are women and children. In parallel, other camps have been established, including Roj camp, containing approximately 2,500 persons, of which over half are children deprived of liberty. In these makeshift locked camps made up of unstable tent-like structures, which collapse in strong winds or flood with rain or sewage, hygiene is almost non-existent: the limited drinking water is often contaminated, latrines are overflowing, mounds of garbage litter the grounds and illnesses, including viral infections, are rampant. Food, water, health care and essential non-food supplies are provided by underresourced humanitarian groups and organizations. No legal process of any kind has been established to justify the detention of these individuals. No public information exists on who precisely is being held in these camps, contrary to the requirements of the Geneva Conventions stipulating that detention records be kept that identify both the nationality of detainees and the legal basis of detention. It is understood that individuals have been smuggled out of the camps, and the Special Rapporteur underscores her concerns about the enabling environment this situation creates for trafficking in persons. These camps epitomize the normalization and expansion of secret detention practices in the two decades since the establishment of the detention facility at Guantánamo Bay, Cuba. The egregious nature of secret, incommunicado, harsh, degrading and unacceptable detention is now practised with impunity and the acquiescence of multiple States.

The Special Rapporteur highlights that since 2019, approximately 10,000 men and 750 boys, some as young as 9, have been detained for alleged association to Da’esh in approximately 14 detention centres – mostly converted schools and hospitals – throughout the north-east part of the Syrian Arab Republic. Of these, at least 2,000 men and 150 boys are third country nationals. Most of these boys were transferred from the camps of Al-Hawl and Roj, some taken away from the care of their mothers and separated from siblings. None of these detention sites or “prisons” meet the standards set out in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). No judicial process has determined the legality or appropriateness of their detention. There are also reports of incommunicado detention. A recent attack on the Al-Sina’a prison in Hasakah underscores the scale of security and human rights challenges perpetuated by the continued existence of sites of detention to which no form of legal process or regulation applies. This system of detention is secret detention in mass and extreme form. States that directly support or enable the building and maintenance of prisons within which no legal norms apply are, in the Special Rapporteur’s view, complicit or responsible through the application of extraterritorial human rights obligations for the human rights violations that occur within them.

Practices of arbitrary mass and secret detention with other serious violations of international law directed at the Uighurs and other ethnic groups in the Xinjiang Uighur Autonomous Region have been the subject of significant communications by the special procedures of the Human Rights Council. Communications have been issued by the Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism,⁹⁶ the Working Group on Arbitrary Detention⁹⁷ and other mandate holders.⁹⁸ In the present report, the Special Rapporteur reiterates and highlights ongoing concerns about the conditions in such facilities, including the practice of “re-education”, which impinges on the most fundamental of rights, including the right not to be arbitrarily deprived of liberty; the right to respect for family life, including the prohibition of forced separation; and the rights to freedom of expression, association and religion or belief, as well as other cultural, economic and social rights. The assertion that mass detention and incommunicado detention is justified by “re-education” to prevent extremism is incompatible with the Government’s international law obligations. The Special Rapporteur has consistently held that the term “extremism” has no purchase in binding international legal standards, and when operative as a criminal legal category, it is irreconcilable with the principle of legal certainty, and is therefore, per se, incompatible with the exercise of certain fundamental human rights. In an oral statement at the fortieth session of the Human Rights Council, the High Commissioner for Human Rights called for an independent assessment to address continuing reports that pointed to wide patterns of enforced disappearances and arbitrary detentions. The Special Rapporteur takes note of multiple joint statements delivered by several countries at seventy-fourth and seventy-fifth sessions of the Third Committee of the General Assembly and at the forty-fourth and forty-seventh sessions of the Human Rights Council, in which growing concerns were expressed about the practice of mass detention and associated human rights violations in Xinjiang. The ongoing flow of credible information pointing to a sustained practice of mass arbitrary detention affirms the pressing need for independent human rights assessment and accountability for violations of international law. In addressing extradition or transfer to China of persons from such minority and ethnic groups, the Special Rapporteur has found that, with regard to any request to expulse, return or extradite a person to another State where there are substantial grounds for believing that he or she would face the risk of being tortured, the principle of non-refoulement must be fully respected.⁹⁹

96. See communications CHN 18/2019 and CHN 21/2018 and Government replies. ↩
97. See communications CHN 4/2021 and CHN 14/2020 and Government replies. ↩
98. OHCHR, “UN experts call for decisive measures to protect fundamental freedoms in China”, 10 June 2021. See also communications CHN 18/2020 and CHN 3/2014 and Government replies; and CCPR/C/103/D/2024/2011. ↩
99. A/HRC/43/46/Add.1, para. 51; and communication CHN 3/2022. ↩

The Special Rapporteur also highlights credible information regarding extensive and sustained ill-treatment occurring, inter alia, in these detention facilities.¹⁰⁰ The Working Group on the issue of human rights and transnational corporations and other business enterprises, together with seven other independent human rights mandate holders, have raised profound concerns about forced labour, trafficking in persons and enslavement in the context of arbitrary detention.¹⁰¹ The experts have specifically highlighted the discriminatory aspect of such serious rights-abusing practices, with Muslim Uighurs being directly targeted and subjected to multiple practices that are not compliant with international law, including law concerning the rights of minorities. The Special Rapporteur affirms these concerns. As noted previously in the present report, when State practices give rise to the concern that systematic and grave violations of international law may be occurring, particularly where they may reach the threshold of crimes against humanity, it is imperative that free and unhindered access, meaningful fact-finding missions and close scrutiny are guaranteed. It remains highly regrettable that neither the High Commissioner for Human Rights nor the several mandate holders who have sought to conduct official visits to China to engage constructively on such issues have been able to do so.

100. She also notes her deep concerns about the role of global and domestic companies in such practices. See CHN 3/2022. ↩
101. As at 29 March 2021, a total of 168 letters had been sent to States and business entities. ↩

The Special Rapporteur underscores the absolute impermissibility of secret detention, rendition, incommunicado detention, disappearances, arbitrary detention and associated practices of torture and other cruel, inhuman and degrading treatment or punishment under international law. She stresses the necessity of accountability and remedy for the systematic use of these practices in the aftermath of the events of 11 September 2001. Impunity for serious violations of international law breeds permissibility for further violations of international law. The failure to reckon with responsibility for these gross violations has created an enabling environment in which States appear empowered to engage in or support mass secret detention with few consequences. The Special Rapporteur urges States to right and remedy the past and to squarely face contemporary practices of mass arbitrary detention and deem them unacceptable to the rule of law and the vision of human rights as contained in the Charter of the United Nations.
IX. Recommendations

The Special Rapporteur recommends that:
(a) States renew their commitment to accept and implement the recommendations of the 2010 joint study. Specifically:
(i) States must pass clear and express domestic legislation prohibiting the practice of secret detention and other forms of unofficial detention;
(ii) States must prosecute, without delay, individuals who participated in the secret detention of persons and in any unlawful acts perpetrated during such detention, including their superiors, if they ordered, encouraged, or consented to secret detentions and, where found guilty, they must be given sentences commensurate with the gravity of the acts perpetrated;
(iii) States cannot use transborder cooperation to engage in secret detention, extraordinary rendition or formally lawful transfer that functions in practice to seriously compromise the fundamental human rights of individuals;
(iv) States must provide protection to persons who have been subject to rendition or secret detention and prevent reprisals given the significant consequences for them and their families that follow from speaking out about the violations they have experienced;
(v) Intelligence agencies must be subject to independent oversight in national legal systems to prevent abuse and ensure that their actions are in conformity with international norms;
(vi) States identified in the joint study should ratify the Optional Protocol to the Convention against Torture and establish monitoring systems to prevent torture, including national preventive mechanisms that are compliant with the Paris Principles;
(vii) States whose nationals are being held in secret detention must protect their citizens abroad by providing effective consular assistance;
(viii) States credibly alleged to have facilitated the use of their airspace and landing facilities for Central Intelligence Agency rendition flights, must review their domestic law and practice, including a review of the investigations, if any, that have so far been conducted by their national authorities;
(b) Given the persistent human rights violations associated with security related cross-border transfers, the Human Rights Council should directly address the need for augmented human rights protection and enforcement in such contexts;
(c) National courts should ensure that transfer agreements in the context of counter-terrorism and security agreements between States are robustly reviewed to ensure that the principle of non-refoulement is upheld. Where human rights have been violated in transfer cases, effective judicial remedies and other remedies and reparations must be available to respond to violations;
(d) States ensure that transfers in violation of human rights are prevented and that there is accountability for past violations. States must remove barriers to accountability for renditions, including restrictive rules relating to State secrets, and other doctrines such as “political question” and “act of State” that function to frustrate the right to an effective remedy;
(e) States incorporate international law obligations, including human rights, international humanitarian and refugee law, in extradition and expulsion proceedings with a counter-terrorism or national security basis. Such proceedings must always be conducted by a judicial authority.
B. Country-specific recommendations

The Special Rapporteur calls for the following: (a) The closure of the military detention facility at Guantánamo Bay, Cuba, and the transfer of persons that have been detained there to countries of nationality or safe third countries when concerns of non-refoulement apply; (b) The establishment of a mechanism to provide adequate remedy to individuals who were secretly detained and identified by the 2010 joint study and the report of the United States Senate Select Committee on Intelligence; (c) The publication by the Government of the United States, without delay and to the fullest extent possible,¹⁰² 102 the report of the Senate Select Committee on Intelligence on the secret detention, rendition and interrogation programme of the Central Intelligence Agency. Such transparency would ensure that such practices could never again be institutionalized and would serve as a model for other countries; (d) The establishment – or, where applicable, the re-opening – by the Governments of Lithuania, Morocco, Poland, Romania and Thailand of effective independent judicial or quasi-judicial inquiries into credible allegations that secret Central Intelligence Agency “black sites” were established on their territories; (e) Full, independent and unhindered access for United Nations human rights entities, including the Office of the United Nations High Commissioner for Human Rights and the special procedures, to assess and investigate allegations of systematic human rights violations occurring at detention facilities in Xinjiang, China; (f) Immediate closure of any mass arbitrary detention facilities in Xinjiang, China; (g) Immediate return and repatriation of third country nationals being held in a variety of detention facilities and camps in the north-eastern part of the Syrian Arab Republic, guided by the principle of non-refoulement, and the establishment of safe third country resettlement if return to countries of nationality is not possible; 102 A/HRC/22/52. (h) Immediate activation of protection for thousands of children secretly and arbitrarily detained in camps, detention, and “rehabilitation” facilities in the northeastern part of the Syrian Arab Republic. Children should never be victims of secret detention and the full application of human rights law, including the Convention on the Rights of the Child and the obligations of international humanitarian law, apply to them in full; (i) Continued support to and cooperation with the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 to ensure accountability for grave breaches of international law, including arbitrary detention, secret detention, torture and disappearance. Annex Names of the individuals identified in the 2020 joint study on global practices in relation to secret detention in the context of countering terrorism Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Abu Zubaydah Palestine 28 March 2002/Faisalabad Thailand/Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Ramzi Binalshibh (bin al-Shibh ) Yemen 11 September 2002/Karachi Thailand/Stare Kiejkuty, Poland/Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Abd al-Rahim al-Nashiri Saudi Arabia October or November 2003/UAE Thailand/Poland/Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Khalid Sheikh Mohammed Pakistan 3 March 2003/Rawalpindi, Pakistan Stare Kiejkuty, Poland/Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Mustafa al-Hawsawi Saudi Arabia 1 March 2003/Rawalpindi, Pakistan Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Majid Khan Pakistan 5 March 2003/Karachi Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Waleed Mohammed bin Attash/Khallad Yemen 29 April 2003/Karachi Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Ali Abd al-Aziz Ali/Ammar alBaluchi Pakistan 29 April 2003/Karachi Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006; and A/HRC/WGAD/2017/89; WGAD, Opinion No. 89/2017 Mohammed Farik bin Amin/Zubair Malaysia 8 June 2003/Bangkok Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Riduan Isamuddin/Hambal/Encep Nuraman Indonesia 11 August 2003/Ayutthaya, Thailand Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Mohammed Nazir bin Lep/Lillie Malaysia 11 August 2003/Bangkok Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Gouled Hassan Dourad/Haned Hassan Ahmad Guleed Somalia 4 March 2004/Djibouti Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Ahmed Khalfan Ghailani Tanzania 25 July 2004/ Gujrat, Pakistan Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 Abu Faraj al-Libi/Mustafa Faraj alAzib Libya 2 May 2005/Mardan, Pakistan Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 12 unidentified detainees Guantanamo A/HRC/4/40/Add.1; WGAD, Opinion No. 29/2006 1 unidentified detainee Afghanistan Opinion No. 11/2007 A/HRC/7/4/Add.1. Mr. Bleier Oct.1975/Uruguay Bleier v. Uruguay, communication No. 30/1978, final views of 21 July 1983 Salah Ali Yemen Eastern Europe Tawfiq [Waleed] bin Attash Between 2003–2005 Stare Kiejkuty, Poland Ahmed Khalfan [al-] Ghailani Between 2003-2005 Stare Kiejkuty, Poland Hassan Gul Stare Kiejkuty, Poland Salah Ahmed al-Salami Died in Guantanamo (9 June 2006) Mani Shaman al-Utaybi Died in Guantanamo (9 June 2006) Yasser Talal al-Zahrani Died in Guantanamo (9 June 2006) Nihad Karsic, Almin Hardaus and six other detainees Around 25 September 2001 Butmir Base (Sarajevo)/Eagle Base, Tuzla (Bosnia-Herzegovina) Mustafa Setmariam Nassar Spain October 2005/Pakistan Pakistan/ US military base in Diego Garcia (Indo-Pacific)/Syria/whereabouts unknown Abd al-Hadi al-Iraqi Guantanamo Muhammad Rahim Afghanistan August 2007/Lahore Guantanamo Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Abdelghani Saad Muhamad alNahi al-Chehri; and Abdurahman Nacer Abdullah al-Dahmane alChehri Opinion No. 12/2006 (A/HRC/4/40/Add.1) 26 detainees WGAD, Opinion No. 29/2006 Mohammed Omar Abdel-Rahman Stare Kiejkuty, Poland WGAD, opinion No. 29/2006 (USA) (A/HRC/4/40/Add.1) Bisher al-Rawi Iraq/British resident 8 November 2002/Gambia Gambia/“Dark prison (Afghanistan)/Bagram/Guantanamo Binyam Mohamed Ethiopia (UK resident) 10 April 2002/Karachi Karachi/Morocco/Bagram/Guantanamo Khaled El-Masri Germany (Lebanese origin) 31 December 2003/former Yugoslav Republic of Macedonia Skopje/Salt Pit Suleiman Abdallah Tanzania March 2003 /Mogadishu Mogadishu/Nairobi /Salt Pit/Bagram Abu Yahya al-Libi Libya Bagram Omar al-Faruq Kuwait 2002/Bogor, Indonesia Bagram Muhammad Jafar Jamal al-Kahtani Saudi Arabia November 2006/ Khost, Afghanistan Bagram Abdullah Hashimi/Abu Abdullah al-Shami Syria Bagram Report notes 645 individuals held in Bagram in 2009 whose names were revealed by the US Government Bagram Ibn al-Sheikh al-Libi 2003/Peshawar Afghanistan/Libya Hassan Raba’I 2003/Peshawar Afghanistan/Libya Khaled al-Sharif 2003/Peshawar Afghanistan/Libya Abdallah al-Sadeq 2004/Thailand Afghanistan/Libya Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Abu Munder al-Saadi Afghanistan/Libya Hassan Rabba’i/Mohamed Ahmad Mohamed al-Shoroeiya Bagram Laid Saidi Algeria 10 May 2003/Tanzania Malawi/Afghanistan/Tunisia Salah Nasser Salim Ali Darwish Yemen October 2003/Indonesia Jordan/Afghanistan WGAD (Opinion No. 47/2005) and E/CN.4/2006/6/Add.1, paragraphs 93, 126, 525 and 550. Mohammed al-Asad Yemen October 2003/Indonesia Eastern Europe/Afghanistan Mohammed Farag Ahmad Bashmilah Yemen October 2003/Indonesia Eastern Europe/Jordan/Afghanistan WGAD (Opinion No. 47/2005) and E/CN.4/2006/6/Add.1, paragraphs 93, 126, 525 and 550. Khaled el-Masri Germany 31 December 2003/border of the former Yugoslav Republic of Macedonia Afghanistan Khaled al-Maqtari Yemen January 2004/Iraq Abu Ghraib/secret detention facility possibly in Eastern Europe Marwan Jabour Jordanian-born Palestinian 9 May 2004/Lahore Afghanistan/Jordan/Israel/Gaza Murat Kurnaz Turkey (German resident) December 2001/Peshawar Peshawar/Kandahar/Guantanamo Wassam al-Ourdoni Jordan Late 2001/Iranian authorities Bagram/Guantanamo Aminullah Tukhi Afghanistan Late 2001/Iran Afghanistan/Guantanamo Hussein Almerfedi Yemen Iran Afghanistan, including Bagram Tawfiq al-Bihani Yemen Iran Iran/Afghanistan/Guantanamo Rafiq Alhami Tunisia Afghanistan/Guantanamo Walid al-Qadasi/Walid Muhammad Shahir Muhammad alQadasi Yemen Late 2001/Iran Afghanistan/Guantanamo/Yemen E/CN.4/2006/6/Add.1; response from the US GVT (A/HRC/10/44/Add.4; and WGAD, opinion No. 47/2005 (A/HRC/4/40/Add.1) Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Soufian al-Huwari Algeria 2002/Georgia Kabul/Bagram/Guantanamo/Yemen Zakaria al-Baidany/Omar alRammah Yemen 2002 in Georgia Afghanistan/Guantanamo Jamil El-Banna Jordan/British resident November 2002/Gambia Afghanistan/Guantanamo Abdul Rahim Ghulam Rabbani Pakistan Karachi Afghanistan/Guantanamo Mohammed Ahmad Ghulam Rabbani Pakistan Karachi Afghanistan/Guantanamo Abdulsalam al-Hela Yemen Egypt Afghanistan/Guantanamo Adil al-Jazeer Algeria Pakistan Afghanistan/Guantanamo Sanad al-Kazimi Yemen UAE Afghanistan/Guantanamo Saifullah Paracha Pakistan Thailand Bagram/Guantanamo Sanad al-Kazimi Yemen January 2003/Dubai UAE/Kabul/Bagram/Guantanamo WGAD, Opinion No. 3/2009 (United States of America) (A/HRC/13/30/Add.1) Redha al-Najar Tunisia May 2002/Karachi Bagram Amine Mohammad al-Bakri Yemen 28 December 2002/Bangkok Bagram WGAD, Opinion No. 11/2007 (Afghanistan/United States of America) (A/HRC/7/4/Add.1) Fadi al-Maqaleh Yemen Abu Ghraib/Bagram Haji Wazir Afghanistan Late 2002/UAE Bagram 12 unidentified men Bagram/whereabouts unknown Issa al-Tanzani/ Soulayman alTanzani Tanzania Mogadishu Afghanistan Abu Naseem Libya Early 2003/Peshawar Afghanistan Abou Hudeifa Tunisia End of 2002/Peshawar Afghanistan Salah Din al-Bakistani Bagdad Afghanistan Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Yassir al-Jazeeri Algeria March 2003/Lahore Afghanistan Ayoub al-Libi Libya January 2004/Peshawar Afghanistan Mohammed Afghanistan/ born Saudi May 2004/ Peshawar Afghanistan Abdul Basit Saudi Arabia or Yemeni Before June 2004 Afghanistan Adnan Before June 2004 Afghanistan Shoeab as-Somali /Rethwan asSomali Somalia Afghanistan Unidentified Somali Somalia Afghanistan Marwan al-Adeni Yemeni Around May 2003 Afghanistan Ghost detainees (number unidentified, but in a report issued in August 2004, two high-level US military noted that eight prisoners were denied access to ICRC) Abu Ghraib, Iraq A suspected leader of Ansar alAslam, known as “Triple X” Iraq 98 deaths in US custody in Iraq, describing 5 deaths in CIA custody, including Manadel alJamadi (report of Human Rights First) Abu Ghrabi and other locations in Iraq CAT/C/48/Add.3/Rev.1, para. 30; A/HRC/6/17/Add.3, para. 36; A/HRC/4/40, para. 43 and 50; E/CN.4/2004/3, para. 69; A/HRC/4/41; A/60/316, para. 45; CAT/C/USA/CO/2, para. 20–21 (proxy detention sites) Jamal Mar’i Yemen 23 September 2001/Karachi Jordan/Guantanamo Mohamedou Ould Slahi Mauritanian 28 November 2001/Jordan Jordan/Afghanistan/Guantanamo Ali al-Hajj al-Sharqawi Yemen 7 February 2002/Karachi Jordan/Afghanistan/Guantanamo Hassan bin Attash Saudi Arabi, born Yemeni 11 September 2002/Karachi (minor) Jordan/Afghanistan/Guantanamo Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Abu Hamza al-Tabuki Saudi Arabia December 2001/Afghanistan Afghanistan/Jordan Samer Helmi al-Barq 15 July 2003/Pakistan Pakistan/Jordan Jamil Qasim Saeed Mohammed Yemen 23 October 2001/Karachi Jordan/whereabouts unknown Ibrahim al-Jeddawi Saudi Arabia First half of 2003/Yemen or Kuwait Jordan/whereabout unknown At least five unidentified men 3 Algeria/1 Syria/1 Georgia (Chechen) 2002/Georgia Jordan/whereabouts unknown Unidentified Iraqi Kurd Iraq Yemen Jordan/whereabouts unknown One unidentified Tunisian Tunisia Iraq Jordan/whereabouts unknown At least five unidentified men Between September 2001– 2004/Karachi or Pankisi Gorge (Georgia) Jordan Abdel Hakim Khafargy Egypt (German resident) 24 September 2001/Bosnia and Herzegovina B&H(US Base in Tuzla)/Egypt Mamdouh Habib Australia November 2001/Pakistan Pakistan/Egypt/Guantanamo Muhammad Saad Iqbal Madni Pakistan/Egypt 9 January 2002/Jakarta Jakarta/Egypt/Bagram/Guantanamo Mohammed Alzery Egypt Sweden Egypt Ahmed Agiza Egypt Sweden Egypt Ibn al-Sheikh al-Libi Libya Late 2001/Afghanistan Egypt/Afghanistan Abu Omar UK/Born in Lebanon Mid-March 2009/Nairobi Nairobi Hassan Mustafa Osama Nasr/Abu Omar Egypt 17 February 2003/Milan Egypt Ahmad Abou El-Maati Canada/ Egypt 11 November 2001/Damascus Far Falestin prison (Syria)/Egypt Muhammad Haydar Zammar Germany 8 December 2001/ Morocco Far Falestin/other locations in Syria WGAD, Opinion No.8/2007 (A/HRC/7/4/Add.1); and (CAT/C/49/Add.4) Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Abdul Halim Dahak November 2002/Pakistan Syria/whereabouts unknown Abu Zubaydah 28 March 2002/Faisalabad, Pakistan Syria/Stare Kiejkuty, Poland/whereabouts unknown Omar Ghramesh 28 March 2002/Faisalabad, Pakistan Syria/whereabouts unknown Unnamed teenager 28 March 2002/Faisalabad, Pakistan Syria/whereabouts unknown Noor al-Deen (teenager) Syria 28 March 2002/ Faisalabad, Pakistan Morocco/Syria/whereabouts unknown Abdullah Almalki Canada/Syria Far Falestin/Sednaya prison (Syria) Barah Abdul Latif Pakistan/Syria/whereabouts unknown Bahaa Mustafa Jaghel Pakistan/Syria/whereabouts unknown Yasser Tinawi Syria 17 July 2002/Somalia Ethiopia/Egypt/Syria Maher Arar Canada/Syria 26 September 2002/New York Manhattan/Far Falestin/Sednaya prison A/HRC/4/33/Add.3, para. 33, 43–45. Muayyed Nureddin Canada/Iraq 11 December 2002/border between Syria and Iraq Far Falestin Abou Elkassim Britel Morocco/Italy 10 March 2002/Lahore Lahore/Morocco Binyam Mohamed Ethiopia 10 April 2002/Pakistan Karachi/Morocco/Kabul/Bagram/Guantanamo Omar Deghayes Libya (UK resident) April 2002/Lahore Lahore/Islamabad/Bagram/Guantanamo Moazzam Begg UK 31 January 2002/Islamabad Islamabad/Kandahar/Bagram/Guantanamo Mohamed Ezzoueck UK 20 January 2007/Kiunga village, Kenya Nairobi/Somalia Bashir Ahmed Makhtal Canada (born in Ethiopia) 30 December 2006/KenyaSomalia border Kenya-Somalia border/Mogadishu/Addis Ababa, Mekalawi federal prison, Ethiopia A/HRC/7/3/Add.1, para. 71. Mohammed al-Asad 27 December 2003 by plane to Djibouti Probably Camp Lemonnier, Djibouti Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Salahuddin Amin; Zeeshan Siddiqui; Rangzieb Ahmed; Rashid Rauf Unknown, but involvement of British authorities Abdel Hakim Khafagy Between September 2001 and end of 2005/involvement of German authorities Jamyang Gyatso China 8 January 2007/undisclosed place of detention (A/HRC/7/3/Add.1), para. 37. Jamyang Kyi China 01 April 2008/Xining City, China (A/HRC/11/4/Add.1), paras. 502–507. Washu Rangjung China 11 September 2008/Tibet Autonomous Region, China (A/HRC/11/4/Add.1), paras. 614–617 Majid Pourabdollah Iran 29 March 2008/Tabriz, Iran (A/HRC/10/44/Add.4). Masood Janjua Pakistan Jul-04 A/HRC/10/9, paras. 300–302. Faisal Farz Pakistan Jul-06 A/HRC/10/9, paras. 300–302. Raymond Manalo Philippines 14 February 2006/San Ildefonso, Philippines Fort Magsaysay/San Ildefonso/Sapang/Bataan/Zambales/ Pangasinan (all in Philippines) Reynaldo Manalo Philippines 15 February 2006/San Ildefonso, Bulacan, Philippines Mr. Nazarov Turkmenistan Boris Shikhmuradov Turkmenistan 2002/Turkmenistan A/HRC/13/31 para. 579; and HRC Communication No. 2069/2011 Erkin Musaev Uzbekistan 31 January 2006/Uzbekistan A/HRC/10/21/Add.1; A/HRC/7/3/Add.1; A/HRC/13/30, para. 29. X.Z. Russia 10 July 2005/Chechnya, Russia Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? X.X. Russia March 2004/Khasavjurt, Dagestan Kirovsky/Bynaksk X.Y. Russia Late 2007/Dagestan, Chechnya, Russia Chechnya M’hamed Benyamina Algeria (resident of France) 9 September 2005/Oran, Algeria Algeria WGAD, opinion No. 38/2006 (A/HRC/7/4/Add.1). Mohamed Rahmouni 18 July 2007/Algeria Algeria WGAD, opinion No. 33, 2008 (A/HRC/13/30/Add.1). Mohamed Fahim Hussein; Khaled Adel Hussein; Ahmed Adel Hussein; Mohamed Salah Abdel Fattah; Mohamed Hussein Ahmed Hussein; Adel Gharieb Ahmed; Ibrahim Mohamed Taha; Sameh Mohamed Taha; Ahmed Saad El Awadi; Ahmed Ezzat Ali; Samir Abdel Hamid el Metwalli; Ahmed El Sayed Nasef; Ahmed Farhan Sayed Ahmed; Ahmed El Sayed Mahmoud el Mansi; Mohamed Khamis El Sayed Ibrahim; and Yasser Abdel Qader Abd El Fattah Bisar Egypt Report of the Special Rapporteur on torture (A/HRC/13/39/Add.1) and the Working Group on Enforced or Involuntary Disappearances (A/HRC/13/31), para. 192 Azhar Khan UK 9 July 2008/Cairo Egypt Mr. al-Dainy and several of his collaborators Spring 2009 Iraq/whereabouts of 11 people unknown Report of the SP on torture (A/HRC/13/39/Add.1)/ WGEID report (A/HRC/13/31), para. 295 530 Palestinians held in administrative detention Israel CAT/C/ISR/CO/4 Issam Mohamed Tahar Al Barqaoui Al Uteibi and 11 other people 28-Nov-02 Jordan WGAD, opinion No. 18/2007 (A/HRC/10/21/Add.1). Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Edriss El Hassy Libya 24-Aug-95 Libya Edriss El Hassy v. Libya (communication No. 1422/2005) Hatem Al Fathi Al Marghani December 2004/Libya Libya WGEID, E/CN.4/2006/56, para.

102. A/HRC/22/52. ↩

Mohamed Hassan Aboussedra and his four brothers 19 January 1989/Al-Bayda Abu Salim prison/other unknown locations in Libya WGAD, opinion No. 16/2007 (A/HRC/10/21/Add.1). Aissa Hamoudi Algeria/Switzerland 18 November 2007/Tripoli Libya Sulaiman al-Rashoudi; Essam Basrawy; Abdulrahman alShumairi; Abdulaziz al-Khuraiji; Moussa al-Garni; Abdulrahman Sadeq Khan; Al-Sharif Seif AlDine Shahine and; allegedly, Mohammed Hasan al-Qurashi 2 February 2007/Jeddah and Medina Saudi Arabia WGAD, opinion No. 27/2007 (A/HRC/10/21/Add.1). Saud Mukhtar al-Hashimi Saudi Arabia 2 February 2007/Saudi Arabia Saudi Arabia 30 former Kurdish detainees Syria (Kurdish) 2008/Syria Syria/whereabouts unknown 8 members of the Kurdish community of Kamishli Syria (Kurdish) Syria A/HRC/13/31, para. 546. Maryam Kallis 15 March 2009/Damascus Damascus Abdeljalil al-Hattar Yemen 14 December 2007/Sana’a Yemen WGAD, opinion No. 40/2008 (A/HRC/13/30/Add.1). A.S. Yemen 15 August 2007/Sana’a Sana’a Carmelo Ncogo Mitigo Equatorial Guinea 3 June 2004/Libreville Unknown/Bata, Equatorial Guinea A/HRC/7/4/Add.3, para. 69. Jesús Michá Equatorial Guinea 4 June 2004/Libreville Unknown/Bata, Equatorial Guinea A/HRC/7/4/Add.3, para. 69. Juan Bestue Santander Equatorial Guinea 5 June 2004/Libreville Unknown/Bata, Equatorial Guinea A/HRC/7/4/Add.3, para. 69. Juan María Itutu Méndez Equatorial Guinea 6 June 2004/Libreville Unknown/Bata, Equatorial Guinea A/HRC/7/4/Add.3, para. 69. Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Juan Ondo Abaga Equatorial Guinea Black Beach prison in Malabo A/HRC/7/4/Add.3, para. 69. Opinion No. 2/2008 (A/HRC/10/21/Add.1) Felipe Esono Ntutumu Equatorial Guinea Black Beach prison in Malabo A/HRC/7/4/Add.3, para. 69. Opinion No. 2/2008 (A/HRC/10/21/Add.1) Florencio Ela Bibang Equatorial Guinea Black Beach prison in Malabo A/HRC/7/4/Add.3, para. 69. Opinion No. 2/2008 (A/HRC/10/21/Add.1) Antimo Edu Nchama Equatorial Guinea Black Beach prison in Malabo A/HRC/7/4/Add.3, para. 69. Opinion No. 2/2008 (A/HRC/10/21/Add.1) Unnamed refugee living in Cameroon Equatorial Guinea Cameroon Malabo A/HRC/13/39/Add.4 Petros Solomon Eritrea 18 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Ogbe Abraha Eritrea 19 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Haile Woldetensae Eritrea 20 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Mahmud Ahmed Sheriffo Eritrea 21 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Berhane Ghebre Eghzabiher Eritrea 22 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Astier Feshation Eritrea 23 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Saleh Kekya Eritrea 24 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Hamid Himid Eritrea 25 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Estifanos Seyoum Eritrea 26 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Germano Nati Eritrea 27 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Beraki Ghebre Selassie Eritrea 28 and 19 September 2001/Asmara, Eritrea WGAD E/CN.4/2003/8/Add.1 at 54 (2002). Yahya Bajinka Gambia April 2007/Eritrea Gambia (maximum security wing of Mile II State Central Prison) Hundreds of Darfuria rebels Sudan May 2008/Omdurman, Sudan undisclosed places of detention A/HRC/11/2/Add.1 X.W. Sudan May 2008/Khartoum Bahri, Khartoum/Kober, Sudan At least 106 people Uganda Between 2006 and 2008 Kololo, Kampala 30 detainees Rwanda and Congo (DR of) Kololo, Kampala Mufti Hussain Bhayat South Africa 18 August 2008/Entebbe Airport, Uganda Kololo, Kampala Haroon Saley South Africa 18 August 2008/Entebbe Airport, Uganda Kololo, Kampala 24 human rights defenders and political activists including Broderick Takawira, Pascal Gonzo and Jestina Mukoko (see below) Zimbabwe 2008/Zimbabwe Broderick Takawira Zimbabwe 2008/Zimbabwe Pascal Gonzo Zimbabwe 2008/Zimbabwe Jestina Mukoko Zimbabwe 3 December 2008/Zimbabwe WGEDI A/HRC/13/31, para. 629 Name Country of nationality Date and place of capture Place of detention Was this person subject to a United Nations communication? Chris Dhlamini Zimbabwe 20080/Zimbabwe Morgan Tsvangirai Zimbabwe 25 November 2008/Zimbabwe Goromonzi Prison Complex/undisclosed locations