Permanent Representatives of Member States of the Human Rights Council
We are writing to you in connection with the joint report of 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 or degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working Group on Enforced or Involuntary Disappearances on secret detentions (A/HRC/13/42).
This report gathers important substantive information relating to the practice of secret detentions around the world and should be carefully examined and debated by the Human Rights Council.
It has come to our attention that the African Group and Organization of the Islamic Conference (OIC) have raised concerns regarding the discussion of the report at the 13th session of the Human Rights Council (HRC) and its publication, in two respective letters addressed to the President of the Human Rights Council. According to the information received the OIC and the African Group have argued that the report should not be presented at any session of the HRC or published as a UN document, given that no specific decision mandating the Special Procedures in question to carry out the referred study was taken by the HRC.
We are very concerned with this proposal which dismisses this study on procedural grounds and would urge your delegation to consider the following elements in order to endorse unequivocally the consideration and publication of this report.
- The Human Rights Council in its resolution 6/28 requested the Special Rapporteur on human rights while countering terrorism to make concrete recommendations on the promotion and protection of human rights and fundamental freedoms while countering terrorism and to work in close coordination with other relevant bodies and mechanisms of the United Nations, in particular with other Special Procedures of the Human Rights Council in order to strengthen the work for the promotion and protection of human rights and fundamental freedoms, while avoiding unnecessary duplications of efforts.
- The subject of the Joint Report on Secret Detention falls clearly within the mandates of the Special Procedures who participated in its drafting, as defined by numerous resolutions including HRC resolutions 6/28, 8/8, 6/4 and 7/12. The report is therefore consistent with Art.7 of the Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council which states that: "It is incumbent on the mandate-holders to exercise their functions in strict observance of their mandate and in particular to ensure that their recommendations do not exceed their mandate or the mandate of the Council itself".
- In 2003 the Special Rapporteur on Violence against Women its Causes and Consequences produced a report entitled "Developments in the area of violence against women (1994-2002)". It was a "state of the world" report which examined developments which had taken place at international and regional levels and also reviewed the state of elimination of violence against women at national levels. As is the case with the Joint Report on Secret Detentions, the Special Rapporteur did not have an explicit mandate to carry out this report, yet she sent a note verbale to all delegations requesting inputs to her report which was drafted and then presented to the 59th session of the Commission on Human Rights. At the 59th session the Commission adopted a resolution "Welcoming the significant work throughout the world over the past decade to eliminate violence against women and girls as reflected in the final report submitted by the [current] Special Rapporteur on Violence Against Women it Causes and Consequences (E/CN.4/2003/75 and addenda) which gives an overview of the work done and is a possible reference for and valuable contribution to the future work in this area". In the resolution the Commission welcomed the work of the Rappoteur and took note of her report.
- In 2006, another group of Special Procedures took the initiative to produce a joint report on the situation of detainees in Guantanamo Bay. The report (E/CN.4/2006/120) was issued on February 15, 2006. The mandate holders did not have a specific mandate to draft the report or present it to the Commission on Human Rights, yet it was included as part of the official documentation of the session and published as a UN document. The report was discussed during the 2nd session of the Human Rights Council on September 21, 2006.
- At the 10th session of the Human Rights Council, on March 10 2009, the Special Rapporteur on human rights while countering terrorism and the Special Rapporteur on torture announced that they would present a joint study on the issue of secret detentions to the Human Right Council Plenary. No concerns were raised by States during the 10th or subsequent sessions of the Human Rights Council. In fact several countries intervened during the interactive dialogue which followed the announcement by the Rapporteurs, raising no objections. The speakers included several members of the African Group and the OIC, such as Pakistan who spoke on behalf of the OIC, Nigeria, Egypt and Saudi Arabia. South Africa intervened to congratulate the Special Rapporteur on human rights while countering terrorism on his informative and detailed report of activities and reiterated their support for the work of the Special Rapporteur.
- In order to draft the Joint Report on Secret Detentions the 4 Special Procedures sent a questionnaire to all member states of the United Nations. The responses were used as primary sources for the report. 44 member states responded to the questionnaire, including countries from the African Group (Algeria, Botswana, Chad, and Mauritius) and the Organization of the Islamic Conference (Albania, Algeria, Bahrain, Bangladesh, Chad, Iraq, Lebanon and Syria). At the time these countries did not object to the work of the report, instead they contributed to its elaboration.
We urge your delegation to prioritize the Human Rights Council's mandate and purpose, which is to address situations of violations of human rights, serve as a forum for dialogue on thematic issues on all human rights and contribute, through dialogue and cooperation, towards the prevention of human rights violations (in accordance with resolution A/60/251).
The report presented by the joint group of Special Procedures raises concerns about abusive human rights practices that have been kept in secrecy. The hidden nature of the abuse and the severity of the consequences for its victims should be debated publicly, in order to prevent their reoccurrence. Over recent years Human Rights Watch has documented and alerted the international community about the use of secret detention centres by countries as diverse as the US, China and Egypt. The Human Rights Council should debate and condemn such practices unequivocally. Void procedural arguments should not detract the Human Rights Council from its substantive mandate to discuss such abuses.
We urge your Government to endorse the publication of this report and its debate at the 13th session of HRC and not allow the important work compiled by the Special Procedures to be suppressed.
Julie de Rivero
Geneva Advocacy Director
Navanethem Pillay, United Nations High Commissioner for Human Rights
Alex Van Meeuwen, President of the Human Rights Council
Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Manfred Novak, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
El Hadji Malick Sow, Chairperson of the Working Group on Arbitrary Detention
Jeremy Sarkin, Chairperson of the Working Group on Enforced and Involuntary Disappearances
 E/CN.4/2003/75 Add1-3