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Human Rights Committee discusses draft general Comment on the right to liberty and security of person

Human Rights Committee

17 July 2014

The Human Rights Committee today started its second reading of the draft General Comment on article 9 of the International Covenant on Civil and Political Rights on the right of everybody to liberty and security of person.

Committee Member Gerald Neuman said that comments on the draft General Comment had been received from eight States parties and more than 15 non-governmental organizations.   In general, comments received were useful, but sometimes showed lack of understanding of what the Committee was trying to say.  The General Comment in its final form would be limited to 10,700 words, including footnotes, which was why some cuts would need to be made.  A few States commented that the Committee’s General Comment was not binding, and categorical statements on duties of States parties ought not to be made.  The General Comment was not supposed to be legally binding in the strict sense, which was why the terms “should” and “must” would need to be used carefully.   The Experts reiterated their view that the Covenant applied extraterritorially. The Committee discussed at length inclusion of deprivation of personal liberty by the action of a State within another State’s territory.  They also agreed that the State party remained responsible for adherence, and ensuring adherence, to article 9 even when private entities were empowered or authorized to exercise powers of arrest or detention. 

On arbitrary detention and unlawful detention, the Committee recognized that the right to liberty of person was not absolute, and that deprivation of liberty was justified in the enforcement of criminal laws.  Unauthorized confinement of prisoners beyond the length of their sentences was arbitrary as well as unlawful.  The Experts agreed that the decision to keep a person in detention was arbitrary if it was not subject to periodic re-evaluation of the justification for continuing the detention.  The term “arrest” was defined as any apprehension of a person that commenced a deprivation of liberty, and the term “detention” referred to the deprivation of liberty that began with the arrest, and continued in time from apprehension until release.  The Committee raised the issue of security detention under the most exceptional circumstances in the context of an armed conflict.  The Experts referred to distinctions between international and internal armed conflicts, addressing the applicability of international humanitarian law.  Administrative detention could not take place without derogation, and the longer the detention was, the higher the threshold for it ought to be.  The general position of the Committee was not to have the armed conflict preclude the overall application of article 9. 

The Committee adopted the first 14 paragraphs of the draft General Comment.

Following are the States parties that provided written comments: Austria, Australia, Belarus, Ireland, Japan, Switzerland, United Kingdom, United States. 

The next public meeting of the Committee will be on Friday, 18 July at 10 a.m., when it will continue its discussion on the draft General Comment.

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For use of the information media; not an official record

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