Opinion; Subjects: UNITED ARAB EMIRATES, UNITED STATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.25-11294 (E) 150825 180825
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 68/2024 concerning Mr. B., whose name is known to the
Working Group on Arbitrary Detention (United Arab Emirates and
United States of America)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 20 October 2023, the Working Group
transmitted to the Governments of the United Arab Emirates and the United States of
America a communication concerning Mr. B. The Government of the United States submitted
a late response on 18 April 2024. The Government of the United Arab Emirates has not
replied. The United States is a Party to the International Covenant on Civil and Political
Rights, while the United Arab Emirates is not.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
* An individual opinion by Working Group member Matthew Gillett (partially dissenting) is annexed to
the present opinion.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/68
General Assembly
Distr.: General
18 August 2025
Original: English
A/HRC/WGAD/2024/68
2
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Mr. B., born in 1973, is a citizen of Afghanistan. As a police force colonel, he worked
with the armed forces of the United States and of the United Kingdom of Great Britain and
Northern Ireland for over 10 years.
(i)
Context
5.
According to the source, in August 2021, the United States allowed its nationals and
private United States entities to transport Afghan nationals abroad from Kabul’s Hamid
Karzai International Airport. Several United States nationals and groups corresponded
directly with foreign Governments to allow the temporary presence of Afghan nationals on
their territory, with the knowledge of the Government of the United States. Based on a
memorandum of understanding between one of these United States nationals and the
Government of the United Arab Emirates, United States-based private companies chartering
flights with Afghan nationals were granted landing rights in the United Arab Emirates, which
enabled private evacuation efforts to continue after 31 August 2021.
6.
In August 2021, shortly after the takeover of Kabul by the Taliban, Mr. B. and his
family tried to escape from Afghanistan after receiving threats from Taliban members.
7.
On 26 August 2021, a relative of Mr. B. received conditional approval for advance
humanitarian parole in the United States.
8.
In September 2021, the organizations Mercury One and Task Force Argo issued
documents to evacuees manifested on their flights, in which, the source claims, they indicated
that they had received endorsement or approval from the Governments of the United Arab
Emirates and the United States.
(ii)
Emirates Humanitarian City
9.
The United Arab Emirates allegedly shares administrative responsibilities for the
Emirates Humanitarian City with United States nationals and corporate entities, which are
involved in access, security and medical arrangements. The source claims that it is likely that
the United States knows that its nationals share management responsibilities with the
United Arab Emirates.
10.
Access to the Emirates Humanitarian City is limited, with many Afghan nationals not
able to receive external visits. The few external visitors who obtained access in the first six
months of the facility’s operations went through a discretionary (and sometimes lengthy)
process with the United States nationals and corporate entities administering the Emirates
Humanitarian City. Once inside, their ability to meet with persons held there was heavily
restricted.
11.
Former members of a third State’s special forces are reportedly contracted to guard
the gates of the facility. Public safety within the Emirates Humanitarian City is handled by
private, civilian security guards and officials of the United Arab Emirates from the Criminal
Investigation Department of the Ministry of Interior and the Ministry of Foreign Affairs.
Private security guards request assistance from the Criminal Investigation Department when
they are unable to resolve a matter.
12.
Individuals in the Emirates Humanitarian City are under constant surveillance, with
cameras almost everywhere. Private guards are posted at each building, restricting movement
and large gatherings and guarding the reception hall entrances, where United States officials
are stationed, making entry without prior permission impossible.
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13.
Afghan nationals within the Emirates Humanitarian City who have a medical
emergency or need specialist care are often denied off-site treatment or forced to wait for
months. When allowed to receive medical care at the external medical facility, they are not
allowed to be accompanied by family members and are closely monitored by guards.
14.
The Emirates Humanitarian City clinic allegedly refuses to release complete medical
records, preventing individuals from entering the United States on humanitarian parole for
medical reasons or from expediting their case processing based on medical need.
15.
There have been reports of United States-based individuals and entities involved in
the management of the Emirates Humanitarian City threatening individuals who raise
concerns about conditions in the Emirates Humanitarian City or who try to engage with the
United States Department of State.
(iii)
Detention
16.
The source states that, on 21 September 2021, Task Force Argo evacuated Mr. B. and
his family from Mazar-e Sharif, in Afghanistan, to the United Arab Emirates. The
United States nationals involved in the evacuation told Mr. B. that they would be in Abu
Dhabi for 14 days and would then fly to the United States, without disclosing that Mr. B. and
his family would be held in the Emirates Humanitarian City. Before the flight, Mr. B. and his
family were given a one-page document from the airline Kam Air, and nothing else. Upon
arrival in Abu Dhabi that same day, armed security guards escorted them and other Afghan
nationals to a bus without disclosing their destination.
17.
Upon arriving at the Emirates Humanitarian City on 21 September 2021, they were
reportedly told that they could not leave the compound until their flight to the United States.
They were not issued with identification documents or temporary residence permits of the
United Arab Emirates.
18.
Mr. B. and his family were taken to their living unit, the doors to which have no lock,
meaning that authorities can enter at any time. The living unit is small, with minimal
furnishings and no kitchen. Mr. B. suffered from food poisoning on multiple occasions and
the food served caused him and his family many medical issues.
19.
Moreover, although the Emirates Humanitarian City has a health clinic, Mr. B. was
regularly denied medical care. The person in charge is neither a medical specialist nor a
doctor, and the clinic only provides basic healthcare.
20.
The lack of medical care has had grave consequences, especially for Mr. B., who has
diabetes. The Emirates Humanitarian City only recently started providing diabetic-
appropriate meals, which are allegedly inedible. Mr. B. developed additional conditions –
including high blood pressure, joint pain, hearing loss and a severe back injury (lumbar nerve
compression) causing periodic pain and short-term paralysis – all of which went untreated.
His repeated requests for off-site medical care were denied. Save for six emergency hospital
visits, Mr. B. was prohibited from leaving the Emirates Humanitarian City and denied follow-
up medical care off site.
21.
As Mr. B. cannot obtain complete medical records from the clinic, he is unable to
advance his humanitarian parole or expedite his case processing through the United States
Refugee Admissions Program on medical grounds.
22.
Mr. B. is under constant surveillance by guards and closed-circuit television cameras
and has struggled to speak with United States officials stationed in the reception hall owing
to the Emirates Humanitarian City’s appointment procedure. He cannot enter the reception
hall without prior authorization or communicate securely with his legal counsel or family
abroad without a virtual private network.
23.
After protests at the Emirates Humanitarian City, in October 2022, the management
team began allowing small groups of Afghan nationals to periodically go to a store of the
managers’ choice. Mr. B. is permitted to go no more than once every three months. Each
time, he is escorted by at least two administrators and two security officers. Once inside the
store, security guards stand at the entrance to prevent escape. The store lacks essential items,
A/HRC/WGAD/2024/68
4
and as detainees have no income, purchases are impossible without financial support from
relatives or friends abroad.
(iv)
Asylum procedure
24.
In or around February 2022, Mr. B. was informed by the United States Citizenship
and Immigration Services that he and his family fell under the Priority 1 category of the
United States Refugee Admissions Program.
25.
Shortly thereafter, the International Organization for Migration (IOM) interviewed
Mr. B., including about his background and experiences in Afghanistan. He received external
assistance to complete the application for refugee status in the United States but was not
informed of his right to legal counsel nor given a receipt or written confirmation that the form
had been submitted. IOM officials then prepared and forwarded his case file to the
United States Citizenship and Immigration Services.
26.
In or around July 2022, the United States Citizenship and Immigration Services
interviewed Mr. B. and his family and reached a preliminary finding of eligibility for the
United States Refugee Admissions Program. However, no decision letter was issued,
contravening the established procedure requiring such a letter to reference the applicable law.
In March 2023, the family underwent medical examinations for resettlement, but no written
documents were issued by the United States Citizenship and Immigration Services. On
30 June 2023, IOM officials informed Mr. B.’s relatives in the United States that his and his
family’s case processing would soon conclude and that they would be brought to the
United States.
27.
No timeline was given, however, to Mr. B. at this time nor during a meeting with IOM
in August 2023.
28.
Neither the IOM nor the United States Citizenship and Immigration Services has
contacted Mr. B. with case updates. IOM has only contacted his relatives in the United States
to provide general updates. He cannot check his case on online portals. Consequently, his
legal counsel is unable to determine whether the United States Citizenship and Immigration
Services and the Department of State have followed mandatory regulations and procedures
governing the processing of applications for the United States Refugee Admissions Program.
This precludes Mr. B. from satisfying pleading requirements for relief in the United States
(writ of mandamus, injunctive relief, etc.), which require specific information of which he
has been deprived knowledge.
(v)
State responsibility of the United Arab Emirates
29.
The source asserts that, since the Emirates Humanitarian City is in the United Arab
Emirates and is partially guarded and managed by authorities of the United Arab Emirates, it
falls under the jurisdiction of that State. It claims a State is responsible for the acts of its
organs and for non-State persons or entities empowered by law to exercise governmental
authority. 2 A government authorizing such actors therefore must remain aware of their
actions and protect individuals,3 including in migration detention, where States must ensure
private detention centres provide employee training equivalent to government-run facilities.4
As a result, States must prevent and punish crimes to uphold human rights duties, irrespective
of whether private actors’ actions are attributable to them.5 Accordingly, the United Arab
Emirates is responsible for the conduct of its employees, as well as of United States nationals
and entities authorized to operate inside the Emirates Humanitarian City.
2 Opinion No. 39/2018, para. 31.
3 Ibid.
4 A/HRC/36/37/Add.2, para. 35.
5 Opinion No. 39/2018, para. 31.
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(vi)
State responsibility of the United States of America
30.
The source argues that the promises of prompt final resettlement made by
United States private actors caused the deprivation of liberty of thousands of Afghan
nationals, including Mr. B.
31.
The United States Department of State has publicly disavowed responsibility for
conditions inside the Emirates Humanitarian City because the individuals held there were not
brought there at the request of the United States.
32.
The source asserts that a State is not absolved of responsibility for violations
committed by its nationals when the State knowingly tolerates the underlying activities and
refuses to remedy the violations.6 This understanding is applicable to nationals operating
within the State’s territory, and anyone within its power or effective control, even if not
situated within its territory.7
33.
United States private actors were instrumental in transporting Afghan nationals to the
Emirates Humanitarian City (flight funding, financial transactions for charter flight
procurement, creation of flight manifests and communication with Afghans fleeing
Afghanistan) and instrumental in its management. The United States allowed United States
private actors to negotiate agreements with the United Arab Emirates regarding the mass
transport of Afghans to the territory of the United Arab Emirates and regarding the
management of the Emirates Humanitarian City in 2021. At a minimum, the United States
knew that these agreements involved offshore migration processing, which would be affected
by existing legal frameworks controlled solely by the Department of Homeland Security and
the Department of State.
34.
The United States has maintained a presence inside the Emirates Humanitarian City,
where agents of the Government of the United States have seen United States private actors
engaging in management responsibilities. The source therefore considers that the
United States aided and abetted widespread human rights abuses and failed in its due
diligence obligations to prevent transboundary harm by its nationals.
(vii)
Legal analysis
35.
The source argues that Mr. B.’s detention is arbitrary and falls under categories I, II
and IV.
36.
According to the source, deprivation of liberty includes being held in guarded
facilities without freedom to leave, involuntary transport to foreign territory and prolonged
immigration custody without administrative or judicial remedy.8 Mr. B. boarded a charter
flight to the United Arab Emirates under false pretences and has been held in administrative
detention since his arrival at the Emirates Humanitarian City, where his movement is
restricted, he is under constant surveillance and he cannot communicate with his legal counsel
or family abroad. Allegedly, United States private actors promised that he would be in the
United Arab Emirates for only 14 days before flying to the United States and did not inform
him that he would be brought to the Emirates Humanitarian City compound.
37.
Although the Emirates Humanitarian City is often referred to as a “refugee camp”,
such designation is immaterial to its status as a detention facility.
a.
Category I
38.
The source submits that Mr. B.’s detention is arbitrary under category I, since he was
not informed of the reasons for his detention, violating article 9 (2) of the Covenant.
39.
The Emirates Humanitarian City’s management team has not provided him with the
factual basis warranting detention. When he asked them, he was informed only that he was
6 Opinion No. 30/1999, para 18 (b); and Human Rights Committee, general comment No. 31 (2004),
para. 8.
7 Human Rights Committee, general comment No. 31 (2004), para. 10.
8 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants
(A/HRC/39/45, annex), paras. 1, 12 and 31.
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6
being hosted and that he would be released when the United States processed his case, a
response equivalent to notifying someone of detention on security grounds without detailing
the alleged offence.
40.
Neither the United States nor the United Arab Emirates has provided a legal basis for
his detention. Article 21 of Federal Law No. 6 of 1973 of the United Arab Emirates
concerning immigration and residence authorizes the detention of foreigners for up to three
months if they fail to maintain valid residence permits. However, Mr. B. has been detained
for over two years. No United States law allows the ongoing policy of outsourced detention
of Afghan asylum-seekers, which “constitutes widespread and systematic violation of
international law”.9
b.
Category II
41.
The source asserts that Mr. B. was detained for exercising his right to seek asylum
under article 14 (1) of the Universal Declaration of Human Rights. He boarded the charter
flight to the United Arab Emirates believing that he would promptly be taken to the
United States, where he would exercise his right to seek asylum.
42.
United States private actors knew (or should have known) that the United Arab
Emirate is not a party to the Convention relating to the Status of Refugees, lacks national
laws granting asylum or refugee status and has no transparent, codified refugee protection
system.
43.
Given the lack of relevant legislative provisions, the United Arab Emirates offered to
release Afghan nationals held at the Emirates Humanitarian City if they accepted temporary
migrant visas. These visas are employment based, do not recognize refugee status and offer
no protection from deportation, access to medical care or resettlement opportunities.
Consequently, Mr. B. has to wait for the full processing of his case through the United States
Refugee Admissions Program to obtain formal refugee recognition.
44.
Although Mr. B. is detained in the United Arab Emirates, the United States is also
responsible for his and other Afghan nationals’ deprivation of liberty as a result of their
“legitimate exercise of rights and freedoms”.10 The Government of the United States should
be held accountable for permitting United States private actors to transport thousands of
Afghan nationals to the Emirates Humanitarian City while processing their immigration cases
in a flawed and non-transparent manner.
45.
The policies and acts of both Governments lack a “legitimate purpose” to justify
detention, such as documenting entry or verifying identity when in doubt – measures that
should be exceptional and brief.11 There is no specific reason, such as an individualized risk
of absconding, threat of crime or danger to national security, for Mr. B.’s detention, which is
tied solely to the processing of his refugee claims.12
46.
A “mandatory immigration detention policy”, as applied to Mr. B., is therefore
arbitrary under category II,13 with his detention attributable solely to his asylum claim in the
United States.
c.
Category IV
47.
The source submits that Mr. B. has been held in administrative detention for over two
years and cannot be released until the United States processes his case, for which there is no
set time frame, thereby exceeding the threshold established by international law. Moreover,
the law of the United Arab Emirates sets no maximum detention period.
48.
Neither country has taken steps to ensure that Mr. B.’s release occurs within a
reasonable time frame. As the United States has failed to consider his claims for asylum or
his status as a refugee, neither country can estimate how long his detention will last, meaning
9 Opinion No. 52/2014, para. 48.
10 Opinion No. 33/2020, para. 60.
11 Opinion No. 21/2018, para. 68.
12 Ibid., para. 70.
13 Ibid., para. 71.
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that it is indefinite. 14 Therefore, his detention is arbitrary, violating article 9 (1) of the
Covenant and falling under category IV.
49.
The source argues that any detention, including administrative detention in migration
proceedings, must be ordered by a judge or other judicial authority.15 Mandatory detention,
coupled with the reported inability to challenge it in Mr. B.’s case, contravenes this
principle.16
50.
Mr. B.’s administrative detention inside the Emirates Humanitarian City was decided
by United States private actors and the non-judicial branch of the Government of the
United Arab Emirates, pursuant to a widespread and systematic policy mandating the
detention of Afghan nationals, violating article 9 (1) of the Covenant.
51.
Reportedly, no judicial body has been involved in the assessment of Mr. B.’s
detention, let alone its legitimacy, necessity and proportionality. This lack of transparency
has left him with just one avenue of redress: awaiting the discretionary decision of the
United States Citizenship and Immigration Services.
52.
Moreover, the source argues that, contrary to the prohibition on housing asylum-
seekers in conditions that pose risks to their mental and physical health,17 Mr. B. has been
subjected to prolonged deprivation of medical care, rising to the level of cruel treatment and
torture.
53.
The United Arab Emirates withheld legal recognition of Mr. B.’s presence or status,
forcing him into irregular migration status and precluding him from being recognized as a
person under the law. Therefore, he is unable to pursue remedies before national courts.18
54.
The widespread de facto offshore detention of migrants by the United States, without
judicial review, violates article 9 (4) of the Covenant. The lack of written case updates or
procedure notices precludes effective legal remedies, as counsel requires them to identify
statutory or regulatory violations.19
(b)
Response from the Governments
55.
On 20 October 2023, the Working Group transmitted the source’s allegations to the
Governments of the United Arab Emirates and the United States of America, requesting a
reply by 19 December 2023.
56.
The United Arab Emirates did not respond to the communication. The United States
submitted a late reply on 18 April 2024. The Working Group cannot accept this response as
if it had been provided within the time limit. In accordance with paragraph 16 of its methods
of work, the Working Gorup will render its opinion based on all the information it has
obtained.
(c)
Additional information received from the source
57.
On 21 May 2024, the source informed the Working Group that, in spring 2024, Mr. B.
and his family had been transferred, under the United States Refugee Admissions Program,
to the United States, where they remain at liberty.
2.
Discussion
58.
In determining whether Mr. B.’s deprivation of liberty is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of international law constituting
14 A/HRC/13/30/Add.2, paras. 36, 37, 62 and 63.
15 A/HRC/39/45, annex, para. 13; and opinion No. 55/2011, para. 23.
16 Opinion No. 21/2018, para. 76.
17 Opinion No. 8/2015, para. 24.
18 Opinion No. 52/2014, paras. 47 and 48; and Human Rights Committee, general comment
No. 35 (2014), para. 46.
19 A/HRC/13/30/Add.2, paras. 36, 37, 62 and 63.
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arbitrary detention, the burden of proof should be understood to rest upon the relevant
Government if it wishes to refute the allegations.20
59.
At the outset, the Working Group notes that Mr. B. was released in spring 2024 and
admitted to the United States through the United States Refugee Admissions Program. In
accordance with paragraph 17 (a) of its methods of work, the Working Group reserves the
right to render an opinion on whether the deprivation of liberty was arbitrary, notwithstanding
the release of the person concerned. The present case raises important issues concerning the
protection of asylum-seekers and migrants from arbitrary detention, with thousands of other
Afghan nationals reportedly held in the Emirates Humanitarian City. The Working Group
therefore considers it important to render an opinion on Mr. B.’s case.
60.
The Working Group will first consider the source’s uncontested allegations that
Mr. B. and his family were detained in the Emirates Humanitarian City. This will first require
a determination as to whether the Emirates Humanitarian City, despite having the word
“humanitarian” in its name, is a de facto place of detention, in order to assess the claim of
arbitrary detention. In the migration context, the Working Group has observed that,
irrespective of what such places are called, the circumstances in which an individual is
detained should be examined to determine whether they are in fact at liberty to leave at will.21
61.
Deprivation of liberty is not only a question of legal definition, but also of fact. The
Working Group is conscious of the increasing number of new regimes of deprivation of
liberty that arise in different contexts around the world. There are several places where an
individual is unable to leave at will and that raise the question of de facto deprivation of
liberty. Even if not officially called “detention centres”, closed institutions where individuals
are not at liberty to leave constitute de facto places of detention. Deprivation of personal
liberty occurs when a person is being held without his or her free consent.22
(i)
Arbitrary detention indicia
62.
The Office of the United Nations High Commissioner for Refugees (UNHCR) has
recently highlighted the elements for assessing de facto deprivation of liberty under
international law. These include whether the individual entered the area or facility
voluntarily; the nature of restrictions, such as physical barriers, security measures and
movement controls; the nature and extent of any surveillance, and limits on privacy, visits
and communication; the duration of stay and any limits thereto; availability of procedural
rights or judicial review; adequacy of living conditions; and the impact on the individual’s
physical or mental health, considering their specific circumstances.23
63.
These considerations have been reaffirmed by the Working Group in its findings in
several opinions concerning Camp Liberty and Camp Ashraf in Iraq, in which it held that
conditions were synonymous with those in a detention centre, as residents had no freedom of
movement, nor interaction with the outside world, nor did they have freedom of movement
and the semblance of a free life within the camp, such that the situation of the residents was
tantamount to that of detainees or prisoners.24
64.
The Working Group recalls its opinion No. 22/2020 concerning Hungarian transit
zones, in which it found that deprivation of liberty had occurred based on several key factors,
including: the presence of high fences and barbed wire, and additional fencing within the
transit zone, severely restricting movement; isolation from public areas and heavy monitoring
by police and security personnel; access to the outside world, including legal counsel and
family, that was heavily controlled, required prior authorization, could only occur in
designated areas under police escort and was often practically unavailable; constant
surveillance that further restricted the autonomy of those confined; inadequate access to
20 A/HRC/19/57, para. 68.
21 A/HRC/39/45, annex, para. 45.
22 A/HRC/36/37, paras. 51, 52 and 56.
23 UNHCR, “Unlocking rights: towards ending immigration detention for asylum-seekers and refugees”
(September 2024), p. 9.
24 Opinions No.16/2012, para. 16; and No. 32/2012, para. 30.
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healthcare, with medical visits requiring escorts and involving significant delays; and the
impossibility of leaving the facility without renouncing one’s asylum claims.
65.
The Working Group observes that Mr. B. experienced several similar elements:
(a)
His movements within the Emirates Humanitarian City were restricted, and he
was prohibited from leaving (save for six emergency hospital visits, for which he was
escorted, and only a few supervised visits to a store, where security agents guarded the
entrance to prevent escape);
(b)
There was constant camera surveillance in nearly every part of the facility and
there were private guards at each building;
(c)
He was unable to securely communicate with his legal counsel or family
outside the Emirates Humanitarian City, and there were heavy restrictions on visitor access
inside;
(d)
His access to healthcare was extremely limited, with long waits for urgent
healthcare outside the facility.
66.
Noting the source’s unrebutted submissions, the Working Group concludes that the
Emirates Humanitarian City is a place of deprivation of liberty. The circumstances clearly
demonstrate that Mr. B. was held there against his will, prohibited from leaving and subjected
to conditions that meet the established criteria for deprivation of liberty.
(a)
Category I
67.
The Working Group notes the source’s submission that Mr. B. and his family boarded
a charter flight to the United Arab Emirates under false pretences, with United States private
actors notably informing him that it would be a short transit on the way to the United States
and omitting the fact that he would be held at the Emirates Humanitarian City, where
accommodation conditions were sparse and movement restricted. Instead, upon arrival in the
United Arab Emirates, armed security guards escorted them and other Afghans, without
explanation, to a bus that transported them to the Emirates Humanitarian City, with his
detention there lasting more than two years. Neither the United Arab Emirates nor the
United States has denied these allegations.
68.
The Working Group further notes that neither the United Arab Emirates nor the
United States provided a legal basis for Mr. B.’s detention. The Emirates Humanitarian City’s
management team informed him simply that he would be released when the United States
had finished processing his case. Moreover, the source argues that his detention, having lasted
over two years, violates the law of the United Arab Emirates and has no legal basis under
United States law, as no United States law allows the ongoing policy of outsourced detention
of Afghan asylum-seekers.
69.
The Working Group further observes the source’s allegation that, in the absence of
relevant legislative provisions, the United Arab Emirates offered to release Afghan nationals
held in the Emirates Humanitarian City if they accepted temporary migrant visas. However,
these visas are employment based, do not recognize refugee status and offer no protection
from deportation, access to medical care or resettlement opportunities. Consequently, Mr. B.
had to wait for his asylum claim to the United States to be processed through the United States
Refugee Admissions Program.
70.
As the United Arab Emirates did not issue any documentation allowing Mr. B. to
lawfully stay in the country during the United States resettlement process, this impermissibly
forced him into irregular migration status, such that he could not move freely within the
United Arab Emirates while maintaining his asylum claim.25 Thus, while Mr. B. was not
charged with any crime, he was effectively detained while waiting for his asylum claim to be
processed. Noting the absence of justification for the stringent restrictions on his liberty
during the processing of his asylum claim, the Working Group concludes that Mr. B. was
25 In opinion No. 22/2020, the Working Group found that an individual faced with the choice of
remaining in transit zones or forfeiting the right to apply for asylum cannot be deemed to have freely
consented to such confinement.
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detained at the Emirates Humanitarian City for over two years, violating article 9 of the
Universal Declaration of Human Rights and the Covenant, and that his detention was
arbitrary.
Principle of joint responsibility
71.
As the allegations concerning arbitrary detention at the Emirates Humanitarian City
involve both the United Arab Emirates and the United States, the Working Group recalls the
principle of joint responsibility for violations involving multiple States, as examined below.26
a.
United States of America
72.
In assessing the potential joint responsibility of the United States, the Working Group
observes that both United States private nationals and government officials were involved in
Mr. B.’s transfer and detention. Specifically, the source submits that:
(a)
In August 2021, the United States allowed its nationals and private
United States entities to transport Afghans outside Afghanistan. Several United States
nationals and groups, with the Government’s knowledge, corresponded directly with foreign
Governments to secure temporary stays for the Afghan nationals.
(b)
On 26 August 2021, one of Mr. B.’s relatives received conditional approval
for humanitarian parole in the United States.
(c)
Based on a memorandum of understanding between a United States national
and the United Arab Emirates, United States-based private companies received landing rights
to continue evacuating Afghan nationals after 31 August 2021.
(d)
In September 2021, the United States entities Mercury One and Task Force
Argo issued documents to evacuees on their flights, in which they indicated that they had
received endorsement or approval from the United Arab Emirates and the United States.
(e)
United States nationals involved in evacuating Mr. B. and his family informed
them that they would stay in Abu Dhabi for 14 days before being transferred to the
United States.
(f)
Administrative responsibility for the Emirates Humanitarian City is shared
between nationals and corporate entities of the United Arab Emirates and the United States.
(g)
United States entities managing the Emirates Humanitarian City oversee the
lengthy, discretionary process for external visitors’ access.
(h)
United States officials are stationed at the Emirates Humanitarian City
entrance and have a presence inside, observing private actors performing management duties.
73.
The source submits that it is likely that the United States knows that its nationals share
management responsibilities with authorities of the United Arab Emirates. In its late reply,
the Government of the United States neither denies the involvement of United States private
citizens and officials at the Emirates Humanitarian City nor disputes the source’s claims.
Instead, it merely states that individuals at the Emirates Humanitarian City are under the care
of the United Arab Emirates. According to the source, the United States Department of State
has publicly disavowed responsibility for conditions inside the Emirates Humanitarian City,
asserting that detainees were not brought there at the request of the United States.
74.
The source submits that the promise of prompt resettlement in the United States
caused the deprivation of liberty of thousands of Afghan nationals, including Mr. B. Private
actors played key roles in transporting Afghans to the Emirates Humanitarian City and in
managing the compound. United States nationals and corporate entities are involved in
access, security and medical arrangements. These are key areas in the management of a
detention centre and are also relevant to the determination of whether the deprivation of
liberty was arbitrary. Moreover, the Working Group notes that United States officials are
stationed in the Emirates Humanitarian City entrance hall.
26 Opinions No. 66/2022, para. 97; and No. 72/2022, para. 71.
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11
75.
On this basis, the Working Group considers that the United States was aware of the
conditions at the Emirates Humanitarian City.
i.
Primary basis for attribution: articles 8 and 11 of the articles on responsibility of States for
internationally wrongful acts
76.
As the Human Rights Committee has stated, while the human rights obligations of a
State on its own territory cannot be equated in all respects with its obligations outside its
territory, there are situations where a State Party must ensure that rights under the Covenant
are not impaired by extraterritorial activities conducted by enterprises under its jurisdiction.27
Under article 8 of the articles on responsibility of States for internationally wrongful acts, the
conduct of a person or group of persons is considered an act of a State under international
law if in fact they are acting on the instructions of, or under the direction or control of, that
State in carrying out the conduct. Under article 8, it is recognized that private actors’ conduct
may be attributable to a State when there exists a “specific factual relationship between the
person or entity engaging in the conduct and the State”.28
77.
Multiple factors indicate a specific factual and operational relationship between the
private actors involved in Mr. B.’s detention and the United States. These include their
funding and procurement of charter flights, creation of flight manifests and direct
communication with Afghans seeking asylum in the United States. These actions were
carried out in the broader context of facilitating asylum claims in the United States, as
reflected in the prior granting of advance humanitarian parole to Mr. B.’s relative by the
Government of the United States. The source’s assertion that Mercury One and Task Force
Argo issued documents indicating that they had received endorsement or approval from the
United Arab Emirates and the United States – uncontested by both Governments – further
strengthens this connection.
78.
The chain of events culminating in Mr. B.’s arbitrary detention in the United Arab
Emirates was set in motion by assurances of prompt and final resettlement in the
United States, as reflected in his admission to the United States through the United States
Refugee Admissions Program. This, combined with actions by private actors with the
knowledge and involvement of United States nationals and entities, underscores their
instrumental role in transferring and managing the detention of Afghan nationals, including
Mr. B. The Working Group highlights that neither the United Arab Emirates nor the United
States refuted the source’s submission that these private actors operated with the endorsement
or tacit approval of both Governments.
79.
Based on the information at hand, the Working Group finds it improbable that private
actors would independently undertake such a large-scale operation – that of transferring
thousands of Afghan nationals to the United Arab Emirates for offshore asylum processing
– without the knowledge and approval of the United States. This operation included
negotiating agreements with the United Arab Emirates and managing critical aspects of the
Emirates Humanitarian City, such as access, security and medical arrangements. These
responsibilities fall within the purview of State authorities, as they relate to the processing of
asylum claims and detention connected with this process, making it unlikely that private
actors acted autonomously. Moreover, the source has made an unrebutted, credible
submission that the United States knew that these agreements involved offshore migration
processing, as this is a matter affected by existing legal frameworks solely controlled by the
United States Department of Homeland Security and Department of State. The absence of
substantive rebuttal by the United States bolsters this conclusion.
80.
The Working Group recalls that article 8 of the articles on responsibility of States for
internationally wrongful acts attributes the conduct of private persons to a State when those
individuals act under the “instructions” or “direction and control” of the State. In this case,
while the private actors involved in Mr. B.’s transfer and detention were not formally
recognized as United States agents, their actions, particularly the negotiation of agreements
27 Basem Ahmed Issa Yassin et al. v. Canada (CCPR/C/120/D/2285/2013), para. 6.5.
28 International Law Commission, draft articles on responsibility of States for internationally wrongful
acts and commentaries thereto, Yearbook of the International Law Commission, 2001, vol. II (Part
Two) and corrigendum, p. 47, para. 1.
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12
with the United Arab Emirates, their management of the Emirates Humanitarian City and the
facilitation of asylum claims in the United States, occurred under the effective direction and
control of the authorities of the United States. The information received, which includes the
presence of United States officials at the Emirates Humanitarian City and their direct
involvement in migration processing, points to a coordinated partnership between private
actors and the Government of the United States.
81.
The International Law Commission’s commentary to article 11 of the articles on
responsibility of States for internationally wrongful acts underscores that, where doubts exist
about conduct falling under article 8, these may be resolved by subsequent acknowledgement
and adoption of that conduct by the State. In this case, the partnership of the United States
with private actors, its endorsement of evacuation documents, its integration of these private
actors into official evacuation efforts and its involvement in managing the humanitarian
compound reflect its acknowledgement and adoption of these actions. The Working Group
finds this to be analogous to the case of United States Diplomatic and Consular Staff in
Tehran (United States of America v. Iran), in which the endorsement by the Islamic Republic
of Iran of private militants’ actions “transformed the legal nature of the situation” into State
conduct.29 In that case, the International Court of Justice emphasized that State approval and
decision to perpetuate private conduct translated that conduct into acts of that State.
Similarly, while private actors initially transported and detained Afghan nationals, the
knowledge, tacit approval and subsequent involvement of the United States in offshore
processing and detention at the Emirates Humanitarian City render those actions attributable
to the Government of the United States under international law.
82.
The case of Adolf Eichmann, cited in the commentary to article 11 of the articles on
responsibility of States for internationally wrongful acts,30 provides further analogy. In that
case, private individuals captured Adolf Eichmann in Argentina, but subsequent
acknowledgement and integration of the actions of Israel into its State policy rendered those
actions State conduct. While Israel initially described the captors as “volunteers”, the
Security Council found State awareness and consent sufficient for attribution. Here,
United States involvement surpasses mere awareness. The presence of United States officials
at the Emirates Humanitarian City and the alignment of Task Force Argo’s efforts with
United States objectives mirror the Eichmann case, in which tacit authorization evolved into
State responsibility.
83.
The source has credibly demonstrated that the United States relied on private actors
for large-scale evacuation and asylum processing. This included conducting essential tasks,
such as negotiating with the United Arab Emirates and chartering flights. As the International
Law Commission emphasizes concerning article 11 of the articles on responsibility of States
for internationally wrongful acts, acknowledgement and adoption of private conduct as State
action require more than mere approval or endorsement. The actions of the United States
meet this threshold through its integration of operations by private entities, such as those
carried out by Task Force Argo and Mercury One, into its asylum framework and its direct
involvement in processing claims at the Emirates Humanitarian City.
ii.
Additional basis for attribution: article 16 of the articles on responsibility of States for
internationally wrongful acts
84.
Even if direct attribution under articles 8 and 11 could not be established, the Working
Group finds that the responsibility of the United States could in any case be established under
article 16 concerning aid or assistance in the commission of an internationally wrongful act.
85.
Indeed, the United States provided material assistance through its nationals who
negotiated agreements with the United Arab Emirates and managed aspects of the Emirates
Humanitarian City. It also had knowledge of the circumstances through its officials stationed
in the Emirates Humanitarian City entrance hall and involved in processing claims, and it
29 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgments, I.C.J. Reports 1980, p. 35, para. 74.
30 International Law Commission, draft articles on responsibility of States for internationally wrongful
acts and commentaries thereto, Yearbook of the International Law Commission, 2001, vol. II (Part
Two) and corrigendum, p. 53, para. 5.
A/HRC/WGAD/2024/68
13
demonstrated intent to facilitate the detention by allowing private entities to direct Afghan
nationals to the United Arab Emirates despite knowing that they would face indefinite
detention. The Working Group notes that such detention, which it has already concluded was
arbitrary, would constitute an internationally wrongful act if committed directly by the
United States under its Covenant obligations.
86.
The Working Group notes that aid and assistance of the United States to the
United Arab Emirates concerning Mr. B.’s detention was an integral part of the operation
leading to his arbitrary detention. The involvement of the United States went beyond mere
coincidental or tangential support. It was structured, systematic and essential to the creation
and maintenance of the situation leading to his arbitrary detention. The granting of advance
humanitarian parole to Mr. B.’s relative, followed by his transfer to and detention at the
Emirates Humanitarian City, demonstrate a causal link between the actions of the
United States and Mr. B.’s arbitrary detention.
87.
Based on this, and considering the source's unrebutted submissions, the Working
Group concludes that the systematic cooperation between the United States and private
entities transforms what began as a private initiative into State conduct. In addition, the
United States provided aid and assistance to the United Arab Emirates with knowledge of the
circumstances of arbitrary detention at the Emirates Humanitarian City. Consequently, the
United States bears international responsibility for Mr. B.’s arbitrary detention.
b.
United Arab Emirates
88.
The Working Group notes that the Emirates Humanitarian City is located in the
United Arab Emirates and, according to the source’s unrebutted submission, partially
guarded and managed by the authorities of that State. Public safety within the Emirates
Humanitarian City compound is handled by private, civilian security guards and officials
from the Criminal Investigation Department and Ministry of Foreign Affairs of the
United Arab Emirates. Mr. B.’s presence at the Emirates Humanitarian City is based on a
memorandum of understanding in which the United Arab Emirates provides landing rights
for United States-based private actors.
89.
A State is responsible for the conduct of a person or entity that is not an organ of the
State but that is empowered by the law of that State to exercise elements of governmental
authority. 31 When a government authorizes private actors to exercise elements of
governmental authority, it must remain aware of their actions and take measures to protect
individuals.32 As the Working Group has stated, a State that outsources the running of
migration detention facilities remains responsible for how those entities carry out delegated
functions and cannot absolve itself of liability, as it owes a duty of care to detainees.33 This
means, for instance, that a State must ensure that private entities operating detention centres
on its behalf provide the same level of employee training as government-run facilities.34
Based on the source’s unrefuted claims that the authorities of the United Arab Emirates were
partially responsible for guarding and managing the Emirates Humanitarian City, the
Working Group concludes that the United Arab Emirates directly participated in Mr. B.’s
detention. For these reasons, the United Arab Emirates is responsible for his arbitrary
detention in the Emirates Humanitarian City.
90.
The Working Group thus finds the United Arab Emirates and the United States of
America jointly responsible for Mr. B.’s arbitrary detention, falling under category I, contrary
to articles 3 and 9 of the Universal Declaration of Human Rights, for both States, and article
9 (1) of the Covenant for the United States.35
31 Opinion No. 39/2018, para. 31.
32 Ibid.
33 A/HRC/39/45, annex, para. 46.
34 A/HRC/36/37/Add.2, para. 35.
35 Human Rights Committee, general comment No. 35 (2014), para. 3.
A/HRC/WGAD/2024/68
14
(b)
Category II
91.
The Working Group recalls that seeking asylum is not a criminal act, but a universal
human right, as affirmed in article 14 of the Universal Declaration of Human Rights and the
Convention relating to the Status of Refugees and its Protocol.
92.
It reiterates that any form of administrative detention or custody in the migration
context must be an exceptional measure of last resort, applied for the shortest period and only
if justified by a legitimate purpose, such as documenting entry, recording claims or verifying
identity.36 Although asylum-seekers who unlawfully enter a State may be briefly detained for
these purposes, continued detention while their claims are processed is arbitrary unless
justified by individual factors, such as a specific risk of absconding, a threat to public safety
or national security concerns.37
93.
The Working Group has received no information from the United Arab Emirates or
the United States on the individualized specific reasons that justify the need to deprive Mr. B.
of his liberty while his asylum claim is being considered. It thus concludes that there was no
individualized assessment conducted regarding his detention and that the authorities of the
United Arab Emirates followed the policy of automatic immigration detention without
assessing the need to detain and without judicial or administrative review. In other words,
Mr. B. was subjected to a mandatory immigration detention policy, which the Working Group
has determined was arbitrary.38
94.
The source makes unrebutted allegations that the Government of the United States
allowed private actors to transport thousands of Afghans to the Emirates Humanitarian City.
The Government of the United States has not rebutted the claims that immigration processing
has been deeply flawed and non-transparent, preventing United States legal counsel from
seeking legal relief to secure Mr. B.’s release. It has also not rebutted the claim that Mr. B.’s
detention stems solely from his attempt to seek asylum in the United States. The Working
Group observes that, had such detention occurred under analogous conditions within the
United States, it would also be deemed arbitrary.
95.
The Working Group reiterates that such policies in both countries breach the right to
seek asylum under international law, meaning that Mr. B. was detained while exercising his
right to seek asylum and freedom of movement under articles 13 and 14 (1) of the Universal
Declaration of Human Rights. The Working Group accordingly concludes that the
Governments of the United Arab Emirates and the United States of America are jointly
responsible for Mr. B.’s arbitrary detention in the Emirates Humanitarian City under
category II.39
(c)
Category IV
96.
The source submits that Mr. B.’s detention is arbitrary under category IV, since he is
a refugee held in prolonged, indefinite administrative custody without access to judicial or
administrative review, violating his right to habeas corpus. It is uncontested that throughout
his two-year detention, no judicial body assessed the legality, necessity or proportionality of
his detention.40
97.
The right to challenge the lawfulness of detention before a court is a self-standing
human right and is essential to preserve legality in a democratic society.41 That right, which
constitutes a peremptory norm of international law, applies to all forms of deprivation of
liberty42 and applies to all situations of deprivation of liberty.43 Irrespective of the place of
detention or the legal terminology used in the legislation, any form of deprivation of liberty
36 A/HRC/39/45, annex, para. 12.
37 Human Rights Committee, general comment No. 35 (2014), para. 18.
38 Opinions No. 28/2017, para. 33; No. 42/2017, paras. 32 and 34; and No. 71/2017, para. 45.
39 Opinion No. 21/2018, para. 63.
40 A/HRC/39/45, annex, paras. 12 and 13.
41 A/HRC/30/37, paras. 2 and 3.
42 Ibid., para. 11.
43 A/HRC/30/37, annex, para. 47 (a).
A/HRC/WGAD/2024/68
15
on any ground must be subject to effective oversight and judicial control.44 The Working
Group observes that Mr. B. has not been afforded the right to challenge his detention before
a court in the United Arab Emirates, violating articles 3, 8 and 9 of the Universal Declaration
of Human Rights and principles 11, 32 and 37 of the United Nations Basic Principles and
Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty
to Bring Proceedings Before a Court.45
98.
No jurisdiction should permit individuals to be deprived of liberty for potentially
indefinite periods without access to legal remedies, including habeas corpus. 46 Where a
person is not free to leave, all safeguards against arbitrary detention must apply, including
the right to challenge the lawfulness of detention before a court.47 Mr. B. was not afforded
such safeguards.
99.
The source argues that, contrary to the prohibition against housing asylum-seekers in
conditions harmful to their health, Mr. B. was subjected to prolonged medical neglect
amounting to torture. His detention conditions, including limited or denied access to medical
care, led to severe, untreated medical issues and worsened pre-existing conditions. Since his
detention, Mr. B. has reportedly developed high blood pressure, joint pain and a severe back
injury. The Working Group notes that detention conditions, combined with serious health
conditions, may jeopardize detainees’ ability to advocate for themselves and by extension
challenge the lawfulness of their detention.48 The denial of medical care can constitute a form
of torture and ill-treatment.49
100.
All detained migrants must be treated humanely and with respect for their inherent
dignity. Conditions must reflect the non-punitive nature of migration-related detention and
include access to appropriate medical care, including mental health services. 50 These
standards were not met in Mr. B.’s case. The United Arab Emirates and the United States
have not rebutted the source’s claim that administrative responsibility at the Emirates
Humanitarian City is shared between their nationals and corporate entities, including in terms
of security, access and medical arrangements. In its late reply, the United States merely stated
that those at the Emirates Humanitarian City are under the care of the United Arab Emirates.
101.
Deprivation of liberty in the immigration context must be a measure of last resort and
alternatives to detention must be sought in order to meet the requirement of proportionality.51
Indefinite detention of individuals in the course of migration proceedings cannot be justified
and is arbitrary.52 The Working Group has emphasized that legislation must set a maximum
detention period in migration proceedings, permitting detention only for the shortest
duration.53 As the Working Group has repeatedly noted, if there has to be administrative
detention, the reasons put forward by States to justify detention, such as the necessity of
identification of the migrant in an irregular situation, the risk of absconding, or facilitating
the expulsion of an irregular migrant who has been served with a removal order, must be
clearly defined and exhaustively enumerated in legislation. 54 As discussed in relation to
category I, Mr. B.’s detention lacked legal basis.
102.
The Working Group reiterates that mandatory detention of asylum-seekers and
refugees solely based on their status is inherently arbitrary.55 Mr. B. was detained solely
44 Ibid., para. 47 (b).
45 A/HRC/30/37, paras. 2, 3 and 47 (a).
46 A/HRC/16/47, para. 54.
47 A/HRC/36/37, para. 56.
48 Opinion No. 1/2017, para. 51.
49 A/HRC/38/36, para. 18; and opinions No. 20/2022, para. 104; and No. 65/2022, para. 116.
50 A/HRC/39/45, annex, paras. 38 and 39.
51 A/HRC/10/21, para. 67; and A/HRC/39/45, annex, paras. 12 and 16.
52 A/HRC/39/45, annex, para. 26; A/HRC/13/30, paras. 62 and 63. See also opinions No. 42/2017 and
No. 28/2017.
53 A/HRC/39/45, annex, para. 25. See also, for example, opinions No. 5/2009 and No. 42/2017;
E/CN.4/1999/63/Add.3, para. 35; and A/HRC/33/50/Add.1, paras. 49 and 50.
54 A/HRC/13/30, para. 59.
55 See opinion No. 1/2019; and UNHCR, “Unlocking rights: towards ending immigration detention for
asylum-seekers and refugees”, p. 5.
A/HRC/WGAD/2024/68
16
owing to his asylum-seeker status. Accordingly, the Working Group finds that he was
arbitrarily detained due to his migratory status without the possibility of challenging the
legality of such detention before a judicial body, violating articles 8 and 9 of the Universal
Declaration of Human Rights and article 9 (4) of the Covenant.
103.
The Working Group notes the source’s uncontested claim that the widespread and
systematic de facto offshore detention of migrants by the United States, without access to
judicial review, violates article 9 (4) of the Covenant and jus cogens norms.56 The policy of
withholding written notice of case updates and procedures precludes access to effective legal
remedies, as such notice is essential for legal counsel to identify violations of statutory and
regulatory requirements.57
104.
Based on the foregoing and noting that Mr. B. was arbitrarily detained in the
United Arab Emirates – where there is a lack of legal framework to protect the rights of
migrants – the Working Group finds that the United Arab Emirates violated articles 8 and 9
of the Universal Declaration of Human Rights. As noted above, the Working Group considers
that the United States is also responsible for this arbitrary detention contrary to article 9 (4)
of the Covenant. Thus, Mr. B.’s detention is arbitrary under category IV, with joint
responsibility attributed to the United Arab Emirates and the United States.
(d)
Concluding remarks
105.
The Working Group is mindful of the source’s submission that Mr. B. and his family
are representative of thousands of Afghan families who remain arbitrarily detained. Since
1997, the Working Group has devoted particular attention to the situation of detained
migrants, identifying challenges, promoting best practices and advocating for safeguards
against arbitrary deprivation of liberty and for appropriate remedies.58
106.
Noting the plight of asylum-seekers, the Working Group expresses concern at the lack
of transparency surrounding the documentation and processes relating to Mr. B.’s asylum
claim in the United States, which impacted his due process rights. While welcoming the
efforts of the United States to relocate at-risk Afghans and noting that Mr. B. was ultimately
transferred to the United States after over two years, the Working Group reminds the
United Arab Emirates and the United States that asylum-seekers are entitled to due process
guarantees as a safeguard against arbitrary detention.
3.
Disposition
107.
In the light of the foregoing, the Working Group renders the following opinion:
Regarding the United Arab Emirates:
The deprivation of liberty of Mr. B., being in contravention of articles 3, 8, 9, 13 and
14 of the Universal Declaration of Human Rights, is arbitrary and falls within
categories I, II and IV.
Regarding the United States:
The deprivation of liberty of Mr. B, being in contravention of articles 3, 8, 9, 13 and
14 of the Universal Declaration of Human Rights and article 9 of the International
Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II and
IV.
108.
The Working Group requests the Governments of the United Arab Emirates and the
United States to take the steps necessary to remedy the situation of Mr. B. without delay and
bring it into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights. The Working Group urges the United Arab Emirates
to accede to the International Covenant on Civil and Political Rights and the Convention
relating to the Status of Refugees and its Protocol.
56 Opinion No. 52/2014, para. 48.
57 A/HRC/13/30/Add.2, paras. 36, 37, 62 and 63.
58 Opinion No. 52/2014, para. 20.
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109.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be for the Governments of the United Arab Emirates and
the United States to accord Mr. B. an enforceable right to compensation and reparations, in
accordance with international law.
110.
The Working Group urges both Governments to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. B.
and to take appropriate measures against those responsible for the violation of his rights.
111.
The Working Group requests both Governments to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
112.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and both Governments to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether compensation or other reparations have been made to Mr. B.;
(b)
Whether an investigation has been conducted into the violation of Mr. B.’s
rights and, if so, the outcome of the investigation;
(c)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the United Arab Emirates and the United States with
their international obligations in line with the present opinion;
(d)
Whether any other action has been taken to implement the present opinion.
113.
Both Governments are invited to inform the Working Group of any difficulties they
may have encountered in implementing the recommendations made in the present opinion
and whether further technical assistance is required, for example through a visit by the
Working Group.
114.
The Working Group requests the source and both Governments to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
115.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.59
[Adopted on 15 November 2024]
59 Human Rights Council resolution 51/8, paras. 6 and 9.
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GE.25-11294
Annex
Individual opinion of Working Group member Matthew
Gillett (partially dissenting)
1.
With the greatest respect, I must dissent concerning the attribution, by the majority of
the Working Group, of responsibility to the United States of America for Mr. B.’s detention
in a different sovereign State (the United Arab Emirates).
2.
The opinion of the majority of the Working Group relies on a flawed conflation.
Without evidence of the involvement of the United States in Mr. B.’s detention in the
United Arab Emirates,1 it points to the involvement of the United States in his evacuation
from Afghanistan and resettlement in the United States.2 However, evacuating people from
conflict zones and processing refugee applications do not equate to responsibility for
detention in a third State. States and humanitarian entities, such as the Office of the
United Nations High Commissioner for Refugees and the International Organization for
Migration, often assist evacuations and should not be deterred from doing so. Through its
conflation, the opinion of the majority of the Working Group risks having a chilling effect
on States and other entities, deterring them from evacuating people from conflicts and
disaster zones to the detriment of the human rights of those in need.3
3.
The flawed conflation undermines the legal basis for the findings of the majority of
the Working Group. To attribute responsibility to the United States, the majority utilizes
article 8 of the articles on responsibility of States for internationally wrongful acts. Yet, the
International Law Commission’s commentary to article 8 requires that “the instructions,
direction or control must relate to the conduct which is said to have amounted to an
internationally wrongful act”.4 That caveat is apposite, as there is no showing that individuals
purportedly under the control or direction of the United States detained Mr. B. (as opposed
to conducting evacuation and resettlement processes).5
4.
The factual high watermark is that the United States may have approved flight
manifests indicating the evacuees would be evacuated from Afghanistan to the United Arab
Emirates; 6 that United States officials were present in the Emirates Humanitarian City
reception hall processing refugee applications; and that private United States nationals were
involved in “management responsibilities” there.
5.
However, none of these bases demonstrates the responsibility of the United States for
arbitrary detention. First, approving flight manifests and visa processing facilitate evacuation
and resettlement, not detention. Second, there is no evidence that the United States officials
conducting migration processes at the Emirates Humanitarian City controlled or guarded the
physical movement of persons present there. Third, private individuals’ purported
involvement in “management responsibilities” is vanishingly vague, lacks any specific
1 I do not dispute the finding by the majority of the Working Group that Mr. B. was detained in the
Emirates Humanitarian City.
2 See para. 72 of the opinion.
3 Asylum processing per se falls outside the Working Group’s mandate. See E/CN.4/1999/63, para. 67.
Category IV applies only to States that meet the criteria for responsibility for detention, not merely
involvement in resettlement.
4 International Law Commission, draft articles on responsibility of States for internationally wrongful
acts and commentaries thereto, Yearbook of the International Law Commission, 2001, vol. II (Part
Two) and corrigendum, p. 48.
5 Notably, the source claims former members of a third State’s special forces guard the gates of the
facility but has not pursued that State’s responsibility for arbitrary detention.
6 The majority of the Working Group attributes responsibility to the United States for funding and
procuring charter flights for transfers to the United Arab Emirates, despite the source only claiming
involvement by private United States nationals. Moreover, the majority’s use of the term
“United States entities” sometimes, confusingly, refers to private United States individuals and
organizations.
A/HRC/WGAD/2024/68
GE.25-11294
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connection to detention and fails to show that these private individuals acted under the
direction or control of the United States.
6.
As a fallback, the majority of the Working Group turns to article 11 of the articles on
responsibility of States for internationally wrongful acts, arguing that the United States
adopted Mr. B.’s detention as its own. However, according to the International Law
Commission’s commentary, article 11 would require “clear and unequivocal acts” on the part
of the United States to adopt the wrongful conduct as its own. The majority points to no such
acts. To the contrary, the source itself admits that “the United States Department of State has
publicly disavowed responsibility for conditions inside the Emirates Humanitarian City” (see
para. 31 of the opinion). The involvement of the United States in resettling Mr. B. does not
amount to adoption of responsibility for his detention.7
7.
Similarly flawed is the argument that a State which “knowingly tolerates” actions by
its nationals, no matter where committed, and “refuses to remedy the violations” is
automatically responsible for those actions. If accepted, this would amount to the wholesale
obviation of the articles on responsibility of States for internationally wrongful acts and
international law.8
8.
The majority’s references to the hostages incident in the Islamic Republic of Iran and
Adolf Eichmann’s abduction are disanalogies. In the case of United States Diplomatic and
Consular Staff in Tehran, the Islamic Republic of Iran had a policy of maintaining the hostage
situation, which was “announced by the Ayatollah Khomeini” and “endorsed by [Iranian
authorities] repeatedly in statements”.9 Eichmann’s case involved the responsibility of Israel
for the abduction of Eichmann in Argentina to bring him to Israel for trial. Contrastingly,
Mr. B. was evacuated from Afghanistan and taken to a different sovereign State (the
United Arab Emirates), where the detention allegedly occurred (conversely, he is now at
liberty in the United States).
9.
Lastly, the majority of the Working Group mentions article 16 of the articles on
responsibility of States for internationally wrongful acts, on aid or assistance. However, the
source’s arguments do not meet this standard even in arguendo, as there is no demonstration
that the United States “intended, by the aid or assistance given, to facilitate the occurrence of
the wrongful conduct” (the detention, in this case).10
10.
The conflation of evacuation and asylum processing with arbitrary detention is a flaw
that permeates the entirety of the majority’s findings concerning the United States. It risks
significantly chilling humanitarian efforts around the globe. On the foregoing bases, I dissent
from the majority’s opinion.
7 A State is only responsible “to the extent that” it adopts the conduct in question. See International
Law Commission, draft articles on responsibility of States for internationally wrongful acts and
commentaries thereto, Yearbook of the International Law Commission, 2001, vol. II (Part Two) and
corrigendum, p. 53.
8 The references for this purported doctrine (opinion No. 30/1999, para. 18 (b); and Human Rights
Committee, general comment No. 31 (2004), paras. 8–10) are disanalogous and short of
demonstrating anything resembling such a far-reaching approach.
9 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgments, I.C.J. Reports 1980, p. 35, para.74.
10 International Law Commission, draft articles on responsibility of States for internationally wrongful
acts and commentaries thereto, Yearbook of the International Law Commission, 2001, vol. II (Part
Two) and corrigendum, p. 66.