Opinion; Subjects: AFGHANISTAN, 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.25-09429 (E) 260625 010725
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 11/2025 concerning Ryan Corbett (Afghanistan)
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.
On 20 November 2024, the Working Group transmitted to the de facto authorities of
Afghanistan a communication concerning Ryan Corbett. 1 In addressing the allegations
against the de facto authorities, the Working Group notes that the State is a party to the
International Covenant on Civil and Political Rights.
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);
(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
1 A copy was also sent to the Permanent Mission of Afghanistan to the United Nations Office and other
international organizations in Geneva. Communications transmitted to the de facto authorities do not
in any way imply the expression of any opinion concerning the legal status of any territory, city or
area, or of its authority.
United Nations
A/HRC/WGAD/2025/11
General Assembly
Distr.: General
1 July 2025
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
4.
Ryan Corbett is a citizen of the United States of America, born on 13 April 1983. He
was 39 years of age at the time of his arrest.
(a)
Communication from the source
(i)
Background
5.
In January 2010, Mr. Corbett and his family moved to Kabul. Between 2010 and 2015,
Mr. Corbett supervised projects for various non-governmental organizations (NGOs). He
learned to speak Pashto fluently and became a part of the local community. His work focused
on issues of education, birth and life-saving skills. In 2017, after completing his Master of
Business Administration, Mr. Corbett established a social enterprise, Bloom Afghanistan.
6.
The mission of Bloom Afghanistan was to strengthen the private sector of Afghanistan
through business consulting, microfinance lending, and monitoring and evaluation of
international development projects on behalf of other organizations. In this context,
Mr. Corbett was a trusted subcontractor for several international NGOs.
7.
Mr. Corbett and his family were forced to evacuate Afghanistan in August 2021 as
the Taliban forces seized control of Kabul. However, he continued to operate Bloom
Afghanistan from the United States.
8.
The source submits that, after the takeover of control by the Taliban forces, foreign
support, on which Afghanistan had been reliant for decades, was abruptly withdrawn at the
end of 2021. The resulting economic crisis was exacerbated owing to the fact that the central
bank of Afghanistan was cut off from the international banking system. Afghan civilians have
since endured a deep economic, social and humanitarian crisis.2
9.
The source notes that one prominent aspect of this decline has been the erosion of the
rule of law throughout Afghanistan3 and submits that, since the Taliban takeover of control,
instances of arbitrary arrest and detention have risen, particularly for human rights defenders,
journalists and former government officials.4
10.
The source submits that Taliban officials regard citizens of the United States with
hostility, and there is evidence of a desire for retribution against individuals for past actions
of the Government of the United States.
11.
The source further submits that, within prisons, detainees have been routinely
subjected to torture. Prisoners have reported being kicked, beaten with cables and pipes and
subjected to electric shocks to sensitive body parts.5 In March 2022, the Taliban introduced a
“code of conduct on system reform relating to prisoners”, a document that purports to prohibit
“all types of torture because only the court has the authority to take punitive decision”.6
However, since its introduction, the code has been routinely ignored, and instances of torture
2 As of February 2024, 24 million Afghans, including 15 million children, were in need of
humanitarian assistance. See the statement made on 29 February 2024 by Special Rapporteur on the
situation of human rights in Afghanistan to the Human Rights Council at its fifty-fifth session,
available at www.ohchr.org/en/special-procedures/sr-afghanistan/activities.
3 A/HRC/55/80, paras. 79–82.
4 A/HRC/51/6, para. 58.
5 Ibid., paras. 58–62 and 83. See also United Nations Assistance Mission in Afghanistan, The treatment
of detainees in Afghanistan, September 2023, available at
https://www.ohchr.org/sites/default/files/2023-12/unama-report-en-treatment-of-detainees-sept-23-
0. pdf.
6 United Nations Assistance Mission in Afghanistan, A barrier to securing peace, August 2023;
A/HRC/51/6, para. 60.
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in prison – already an issue in pre-Taliban Afghanistan – have only risen in frequency and
severity.7
12.
Thus, despite formal representations that torture in prisons would stop and
perpetrators would be held to account, perpetrators of torture in prisons have in reality been
met by a system of “rampant impunity”.8
13.
The source notes that the information available about the circumstances of
Mr. Corbett’s arrest and detention is limited by the fact that, since 2022, he has been held
incommunicado.
(ii)
Arrest and detention
14.
In January 2022, Mr. Corbett returned to Afghanistan to renew his business visa and
to pay and train the staff of Bloom Afghanistan. During this trip, he was warmly welcomed
and left Afghanistan without incident.
15.
Mr. Corbett returned to Afghanistan in August 2022, again to pay and train the staff.
He had a valid business visa, issued by the Taliban authorities. During this trip, Mr. Corbett
went to the Jowzjan region in the northern part of Afghanistan to meet with the local
population and assess opportunities for humanitarian projects. The first three to four days of
the visit went without incident. However, on 10 August 2022, he was confronted at his
accommodation by 20 armed members of the Taliban.
16.
The men took Mr. Corbett, a foreign national who was accompanying him and two
Afghan nationals with whom they were travelling, to the local police station. On their arrival,
Taliban authorities registered surprise that there were foreigners in the region. Mr. Corbett
and his colleague explained that they had official visas and had advised the Taliban of their
presence in Afghanistan through the Ministry of Labour in Kabul. They were then told that
foreigners were not allowed to enter “certain places” in the country without permission. The
local authorities questioned Mr. Corbett and his colleague for about 30 minutes, and then
drove them to their main headquarters in the Jowzjan region. They were not given any reason
for their detention.
17.
Initially, Mr. Corbett and his colleague expected to be released promptly once the
Taliban had received proof of the legitimacy of their presence. Both were still in possession
of their mobile phones, and Mr. Corbett, who had a flight to Kabul scheduled that afternoon,
called his office and asked that it be moved to the next day. Mr. Corbett and his colleague
spent the afternoon answering repetitive questions about what they were doing in Afghanistan
and why they had not “registered” with regional security forces.
18.
Mr. Corbett and his colleague were told that they had to stay overnight in the Taliban
police dormitories. The police repeatedly assured Mr. Corbett and his colleague that the
problem would be resolved once a superior signed off on their paperwork.
19.
On the following day however, Mr. Corbett and his colleague were asked to hand over
their phones. They were taken to an underground prison within the police headquarters,
where they spent two or three nights. During that time, both men were locked in a prison cell.
They heard people being tortured all night, and there was blood on the walls. The following
day, they were questioned again, but this time by different Taliban interrogators who were
trying to demonstrate that Mr. Corbett and his colleague were spies.
20.
After a few days of being held in the underground prison, Mr. Corbett and his
colleague were transferred to Kabul. During this journey, the prisoners were handcuffed
together in the back seat of a car, while guards in the front aimed their weapons at them.
21.
Once in Kabul, the Taliban kept Mr. Corbett and his colleague in a security compound
for a few days. Mr. Corbett was handcuffed and hooded whenever he was taken outside of
his cell. He was then transferred to a former Presidential Palace. The Palace contained
7 A/HRC/51/6, para. 60. See also A/HRC/55/80, paras. 76 and 81.
8 A/HRC/55/80, para. 84.
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underground cells to which detainees were confined at all times, except to be escorted to the
toilet or to take a weekly shower.
22.
Approximately three months into his detention at the Palace, around November 2022,
Mr. Corbett was moved into a small cell with another detainee from a Western country. A
few days after that, the colleague who had been arrested with him was moved into the same
cell. The cell was monitored by closed-circuit television.
23.
Mr. Corbett’s physical and mental health deteriorated rapidly, but he was denied
access to adequate medical care. Detainees, including Mr. Corbett, suffered a variety of
health issues caused by the poor hygiene in the cell and lack of sunshine, proper food and
vitamins, medication and exercise.
24.
Mr. Corbett’s colleague was released in December 2022, and the second foreign
detainee in April 2023. However, at the same time, Mr. Corbett was transferred to another
prison.
25.
Since his arrest, Mr. Corbett has been able to make five short calls to his family, the
first call being nearly nine months after his arrest. On at least one occasion, the call was the
result of Mr. Corbett staging a hunger strike. During these calls, Mr. Corbett did not appear
to be speaking freely.
26.
He has been visited twice during the more than two years of his captivity, both times
by a third-party State delegation. That delegation provided a picture and a video of
Mr. Corbett during its visit in December 2023, which make it clear that he is under severe
physical and mental pressure.
27.
Mr. Corbett has not been visited by anyone else since December 2023. Recently
released individuals held with Mr Corbett have reported that he is in poor physical and mental
health and without access to adequate medical care. There has been no explanation provided
for Mr. Corbett’s arrest.
28.
The source submits that, although domestic legal frameworks and accountability
mechanisms have been dismantled under Taliban rule, Afghanistan remains bound by its
obligations and commitments as a State Party to certain international human rights
instruments, which were signed, ratified or acceded to prior to the change in governing power.
These instruments include the Covenant and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
29.
The source further submits that cases before the Working Group are not limited to
strict instances of arbitrary detention by States; the Working Group may consider cases
arising from arbitrary deprivation of liberty by non-State armed groups, or through de facto
State control. As has been recognized by the Working Group, the articles on responsibility
of States for internationally wrongful acts give it authority to consider a case in which an
individual was detained by a non-State armed group on the basis that the group was clearly
mandated by the Government to detain individuals on the Government’s behalf.9 Similarly,
it is recalled that the Working Group has, for example, previously determined that deprivation
of liberty by a non-State group does not absolve the Government of its responsibilities where
it had been established that the authorities knowingly tolerated the illegal conduct.10
30.
The source submits that the Taliban seized power from the elected Government of
Afghanistan in August 2021. While many States do not recognize the legitimacy of the
authority of the Taliban, the latter have installed themselves as the “interim Government”.
As such, the Taliban oversee an armed force that reports to the Ministry of Defence and police
forces that report to the Ministry of Interior. They also control the prisons, with the so-called
General Directorate of Intelligence being responsible for most detentions. The Taliban are
therefore the de facto authority in Afghanistan and are the authorities responsible for
Mr. Corbett’s arbitrary detention.
9 Opinion No. 39/2018, paras. 26–32, 39. See, in particular, para. 31.
10 Opinion No. 30/1999, para. 18 (b).
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(iii)
Legal analysis
31.
The source submits that the detention of Mr. Corbett is arbitrary and falls within
categories I, II, III and V of the Working Group.
32.
In relation to category I, the source argues that, far from overstepping the requirements
of domestic law by, for instance, delaying release after completion of sentence, Mr. Corbett’s
detention sits wholly beyond the legal framework: the Taliban have not attempted to justify
Mr. Corbett’s arrest and detention as lawful. The source notes that the Working Group has
routinely found such cases to constitute category I violations.11
33.
The source notes in this context that, regardless of the purported overhaul of domestic
legal frameworks by the Taliban, the need for due process immediately upon arrest is
reflected in article 9 (2) of the Covenant, which provides that anyone who is arrested shall be
informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed
of any charges against him.
34.
In this regard, the source recalls that, in an earlier opinion, the Working Group found
that an arrest without a warrant that sets out the reasons for arrest is in most cases arbitrary.12
Only narrow exceptions to this requirement are permitted: where a person is arrested in
flagrante delicto, or in a state of declared emergency. Neither situation applies in this case.
Mr. Corbett was detained without a warrant and was never furnished with one. The source
submits that those failures amount to violation of the requirement under article 9 (2) of the
Covenant.
35.
It is further recalled that article 9 (2) of the Covenant also requires prompt notification
of charges, a requirement that has been violated, since Mr. Corbett has never been charged
with a crime. The Working Group has readily found such cases to constitute category I
violations.13 The length of time that has passed since Mr. Corbett was detained makes this
violation particularly egregious. The Working Group has previously found a detention to be
arbitrary after 36 hours had passed without charge;14 in another case where three months had
passed.15 It is noted that, to date, Mr. Corbett’s detention without charge has far exceeded
these periods.
36.
With regard to the requirement of “clear impossibility” in category I cases,16 the source
recalls that there is no prospect of facts emerging that would account for all, or any part of,
Mr. Corbett’s detention. It is submitted that Mr. Corbett was not engaged in criminal activity
at the time of or prior to his arrest, that he was lawfully present in Afghanistan, and that his
entry had been approved by the Taliban authorities. Even leaving aside the formal failures of
due process in Mr. Corbett’s case, there is no conceivable basis for Mr. Corbett’s arrest and
ongoing detention, notes the source.
37.
In relation to category II, the source submits that Mr. Corbett’s arrest, and the initial
phase of his detention in August 2022, were the result of him exercising his right to freedom
of movement, as protected by article 13 of the Universal Declaration of Human Rights and
article 12 of the Covenant.
38.
At the time of his arrest, Mr. Corbett was lawfully in Afghanistan for the purposes of
article 12 (1) of the Covenant: he had an official visa to conduct business in the State and had
advised the Taliban authorities of his presence through the Ministry of Labour. The response
of local authorities in Jowzjan was surprise at his, and his foreign colleague’s, presence in
the region, and concern about being held responsible for their safety. From that reaction, it
appears that the initial impetus for his arrest and the early days of his detention was his
(admittedly unusual) presence as a Western person in the north of Afghanistan. Evidently,
that is not a sufficient reason for arrest or detention, notes the source.
11 Opinions No. 4/2012, para. 27; No. 1/2016, para. 34; No. 9/2007, para. 19; and No. 31/2001, para. 14.
12 Opinions No. 27/1993, para. 10; and No. 46/2015, paras. 27 and 31.
13 Opinions No. 4/2012, para. 27; and No. 31/2001, para. 14.
14 Opinion No. 30/2017, para. 58.
15 Opinion No. 15/2007, para. 10.
16 A/HRC/36/38, para. 8 (a).
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39.
The source submits that Mr. Corbett’s detention results from his exercising his right
to freedom of movement, as required by the definition set out in the methods of work of the
Working Group.17 It further recalls that the Working Group has indicated that something more
than simple deduction is required to establish causation, and that it may be reluctant to find
a category II violation where there are multiple possible reasons for detention.18 It is argued
that that is not the case here. The statements made by the Jowzjan local authorities are the
only clues available as to why Mr. Corbett was initially detained. He was lawfully present in
Afghanistan and had not perpetrated any crime. These statements constitute reliable prima
facie information and, in the absence of any alternative or additional explanation from the
authorities, the source submits that a finding of a category II violation is appropriate.19
40.
The source further submits that the right to be free to leave any country, protected by
article 12 (2) of the Covenant, is also violated by Mr. Corbett’s detention.
41.
In relation to category III, the source submits that a wide range of fair trial norms have
been violated in Mr. Corbett’s case.
42.
First, Mr. Corbett has not been informed of the reasons for his arrest, contrary to article
9 (2) of the Covenant. On the matter of promptness, the Human Rights Committee refers, in
its general comment No. 35 (2014) on liberty and security of person, to a period of “a few
days”. 20 The Working Group’s earlier jurisprudence confirms that the interpretation of
“promptness”, while shaped by broader circumstances, is often read strictly, and that a five-
hour postponement has previously been found to be a violation of article 9 (2) of the Covenant
and a category III violation.21 Taken together, the impression created by the approaches of
the Working Group and Human Rights Committee is that detainees must be informed of the
charges against them within as short a time as possible, but definitely no longer than a matter
of days. In this regard, the source recalls that Mr. Corbett has been detained without that
information for over two years.
43.
Secondly, Mr. Corbett is being held incommunicado, which is defined as a deprivation
of liberty in which a detainee’s communication with other human beings is either highly
restricted or non-existent.22 The Working Group has recognized the “inherent arbitrariness”
of incommunicado detention and highlighted its particular dangers, as it places individuals
outside the cloak of any legal protection.23 The Working Group has further suggested that
detention incommunicado for any period longer than two weeks will be likely to constitute a
category III violation.
44.
During his detention, Mr. Corbett has been denied visits from the International
Committee of the Red Cross and consular officials of the country of his nationality. He has
been visited on only two occasions by officials from a third-party State delegation. He has
spoken to his family on five occasions during short phone calls, which were the result, at
least on one occasion, of a hunger strike. While Mr. Corbett has, at various times, been
detained in a cell with other captives from Western States, their ability to communicate was
limited by the fact that they were monitored at all times. Furthermore, no information is
available about Mr. Corbett’s current circumstances of detention, including whether he has
any contact with anyone. In these circumstances, his treatment falls within the definition of
incommunicado detention, as there is no doubt that his ability to communicate with others is
at least “highly restricted”. The source argues that Mr. Corbett’s detention in these
circumstances amounts to a serious violation of international law that falls within category III.
45.
Moreover, the source notes that Mr. Corbett was unable to challenge the legality of
his detention, contrary to articles 9 (3) and 9 (4) of the Covenant. Article 9 (3) provides as
17 A/HRC/36/38, para. 8.
18 Opinion No. 60/2016, para. 26.
19 Opinion No. 33/2014, para. 20.
20 Human Rights Committee, general comment No. 35 (2014), para. 2.
21 Opinion No. 57/2016, para. 108.
22 Reply by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment to questions raised by Member States during the interactive dialogue at the sixty-sixth
session of the General Assembly, 18 October 2011.
23 A/HRC/22/44, para. 60.
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follows: “It shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any other stage of the
judicial proceedings, and should occasion arise, for execution of the judgement”.
46.
Furthermore, article 9 (4) of the Covenant provides as follows: “Anyone who is
deprived of his liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful”.
47.
The Human Rights Committee has held 48 hours to be a sufficient period of time to
transport detainees and afford them a judicial hearing – any lengthier holdings “must remain
absolutely exceptional and be justified under the circumstances”.24 The Working Group has
confirmed that complete denial of access to court can amount to a category III violation.25
The source notes that Mr. Corbett has never been brought before a court in Afghanistan, or
given access to any means by which to challenge his detention. It is thus argued that this
amounts to a clear violation of his rights since Mr. Corbett is being held without legal
protections.26
48.
The source further recalls that right to counsel is protected in article 14 (3) of the
Covenant, which provides that “in the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full equality ... To have
adequate time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing”.
49.
This denial is a feature of the violation outlined above, most prominently by depriving
Mr. Corbett of access to persons able to bring his case to the attention of a judge or other
arbiter. Another consequence of denying Mr. Corbett access to lawyers is ensuring his
complete isolation from everyone seeking to help him. The source submits that the Working
Group has been deprived of the benefit of hearing Mr. Corbett’s own representations.
50.
The source further submits that Mr. Corbett has been subjected to torture while in
custody, contrary to articles 1, 2, 4 and 7 of the Convention against Torture. He was subjected
to severe physical torture while detained in at least one facility. He has also been threatened
with beatings and forced to listen to other prisoners being tortured while held in a cell stained
with blood. Direct and indirect threats of torture can amount to the purposeful infliction of
fear and can themselves constitute torture.27 To the knowledge of the source, Mr. Corbett is
detained in perpetual darkness and is suffering from a range of health problems. He has lost
a significant amount of weight; suffers from blackouts and fainting episodes causing him to
fall and injure himself; suffers from high fevers, reported seizures and discoloured
extremities; and experiences ringing in his ears and numbness in his feet that have kept him
awake.
51.
He has also been held in solitary confinement for long periods of time, in violation of
the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules).28 The source recalls witness accounts according to which Mr. Corbett had
been in solitary confinement for months when he eventually met a witness in prison and was
soon after returned to solitary confinement for translating complaints from other Western
detainees into Pashtun. Mental pain – also outlawed by the Convention against Torture29 –
has also been inflicted on Mr. Corbett. He has been repeatedly given false information,
including that he would soon be released and reunited with his family. The impact of this
mental torture was evident during Mr. Corbett’s most recent call with his family, during
which Mr. Corbett apologized to his family for leaving them and said that he just wanted to
die.
24 General comment No. 35, para. 33.
25 Decision No. 20/1993, para. 9.
26 Opinions No. 30/2016, in which a period of eight months was an unacceptable delay; No. 11/2017,
para. 46, in which a person was not brought before a court for three weeks; and No. 52/2015, para. 46,
in which eight days was an unacceptable delay.
27 A/HRC/43/49, paras. 46 and 47.
28 Nelson Mandela Rules, rule 43.1 (b).
29 Convention against Torture, art. 1.
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52.
In relation to category V, the source outlines the following indicators of discrimination.
53.
The other detainees with whom Mr. Corbett was arrested, who were from other
Western countries, have been released. This is a matter explicitly recognized by the Working
Group as evidence capable of demonstrating detention on discriminatory grounds.30
54.
There is a history of persecution of citizens of the United States by the Taliban. The
source recalls witness accounts according to which another foreign detainee was treated more
brutally because Taliban members at times suspected (wrongly) that he was a citizen of the
United States. During beatings, the Taliban would say to the detainee “You are an American,
and this is what Americans have done to us”. According to this witness, his mistreatment
decreased when they became satisfied that he was not a citizen of the United States.
55.
The source submits that fellow detainees, informed by their own experience of
detention with Mr. Corbett and familiarity with guards, have reached the conclusion that
Mr. Corbett is being detained because he is a citizen of the United States. The source recalls
a witness account stating that Mr. Corbett is “being used knowingly/unknowingly as a
political pawn between the Taliban and the United States”.
56.
The source notes that there is no evidence or suggestion that Mr. Corbett is or was
gathering intelligence, or any other basis for his detention.
57.
The source also notes that in cases brought on the basis of limited information, such
as Mr. Corbett’s, the Working Group has on occasion inferred discrimination when no other
reason can be invoked to justify the detention.31 Even if the Working Group is not able to
satisfy itself of causation in the absence of additional concrete information as to the Taliban’s
motivations, the fact remains that there has been no explanation provided for Mr. Corbett’s
arrest. Therefore, the source submits that the only available inference is that Mr. Corbett’s
ongoing detention is due to his status as a citizen of the United States.
(b)
Response of the de facto authorities
58.
On 20 November 2024, the Working Group transmitted the allegations from the
source to the de facto authorities under its regular communication procedure. A copy of the
letter was also sent to the Permanent Mission of Afghanistan to the United Nations Office
and other international organizations in Geneva. The Working Group requested detailed
information by 20 January 2025 about the current situation of Mr. Corbett. The Working
Group also requested that the de facto authorities clarify the legal provisions justifying his
detention, as well as their compatibility with the obligations of Afghanistan under
international human rights law and, in particular, with regard to the treaties ratified by the
State. Moreover, the Working Group called upon the de facto authorities to ensure
Mr. Corbett’s physical and mental integrity. The Working Group regrets that it did not
receive a response from the de facto authorities to that communication. The de facto
authorities did not request an extension of the time limit for their reply.
(c)
Additional information from the source
59.
On 21 January 2025, the source informed the Working Group that Mr. Corbett had
been released from the custody of the de facto authorities on 20 January 2025.
2.
Discussion
60.
In the absence of a response from the de facto authorities (also referred to herein as
the Taliban), the Working Group has decided to render the present opinion, in conformity
with paragraph 15 of its methods of work.
61.
In determining whether the detention of Mr. Corbett is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
30 A/HRC/36/37, para. 48 (c): “The authorities have made statements to, or conducted themselves
toward, the detained person in a manner that indicates a discriminatory attitude (e.g. female detainees
threatened with rape or forced to undergo virginity testing, or a detainee is held in worse conditions or
for a longer period than other detainees in similar circumstances)”.
31 Opinion No. 56/2016, para. 36.
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the source has presented a prima facie case of breach of international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the authorities, if
they wish to refute the allegations.32
62.
As a preliminary matter, the Working Group notes that Mr. Corbett was released on
20 January 2025. He is therefore no longer detained. Nonetheless, the Working Group has
therefore decided, in accordance with paragraph 17 (a) of its methods of work, to render the
present opinion, in the light of the serious allegations relating to Mr. Corbett’s deprivation of
liberty.33
63.
The present situation concerns detention by an armed group constituting the de facto
authorities in Afghanistan, namely, the Taliban. The source argues that the Working Group
is not limited to instances of arbitrary detention by States; but may also consider arbitrary
detention by non-State armed groups, or through de facto State control. It notes that the
articles on responsibility of States for internationally wrongful acts cover cases in which an
individual is detained by a non-State armed group that was clearly mandated to detain
individuals on the Government’s behalf, 34 and where it had been established that the
authorities knowingly tolerated the illegal conduct.35 However, the current case differs from
these precedents as there is no indication of any link between the detention and the official
Government of Afghanistan. Instead, the situation here is one in which an armed group is
exercising de facto control over a State. In such circumstances, it has been recognized that
the armed group’s conduct may be held to constitute a violation of the human rights
obligations incumbent on the State. 36 This is reflected in article 9 of the articles on
responsibility of States for internationally wrongful acts, which provides that “the conduct of
a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact exercising elements of the governmental authority
in the absence or default of the official authorities and in circumstances such as to call for the
exercise of those elements of authority”.
64.
The Working Group’s mandate, most recently renewed under Human Rights Council
resolution 51/8 and its methods of work, requires it to “investigate cases of deprivation of
liberty imposed arbitrarily” and do not prevent it from doing so in circumstances where an
armed group has taken over de facto control of a State.37 Accordingly, the Working Group
will exercise its jurisdiction in the present case.
(a)
Category I
65.
As an overarching point, the source argues that the Taliban has detained Mr. Corbett
without providing any justification whatsoever, thereby rendering his detention wholly
beyond any legal framework and arbitrary under category I. The de facto authorities have not
addressed this allegation or any of the other allegations made concerning Mr. Corbett’s arrest.
66.
Category I explicitly applies when no legal basis has been invoked to justify the
deprivation of liberty. In the present case, no legal basis for Mr. Corbett’s detention has been
32 A/HRC/19/57, para. 68.
33 Opinions No. 23/2024, para. 63; No. 50/2017, para. 53 (c); and No. 55/2018, para. 59.
34 Opinion No. 39/2018, paras. 26–32 and 39. See particularly para. 31, referring to article 5, which
clarifies that 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 is considered an act of the
State under international law, provided the person or entity is acting in that capacity in the particular
instance.
35 Opinion No. 30/1999, para. 18 (b).
36 See, e.g., Annual report of the United Nations Assistance Mission in Afghanistan on protection of
civilians, 2020, p. 99, citing the report of the Secretary-General’s Panel of Experts on Accountability
in Sri Lanka, 2011, para. 188. See also the report of the International Commission of Inquiry to
investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya
(A/HRC/17/44); the report of the independent international commission of inquiry on the Syrian Arab
Republic (A/HRC/19/69), para. 106; and United Nations Mission in South Sudan, Conflict in South
Sudan: A human rights report, 2014, para. 18.
37 The Working Group has previously rendered opinions concerning authorities that lack universal
recognition as States; see, e.g., opinion No. 31/2001.
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provided. On this basis, the Working Group considers that his ordeal clearly violated article
9 of the Covenant and qualifies as arbitrary under category I.
67.
Also under category I, the source notes that Mr. Corbett was detained without a
warrant and was not provided one thereafter throughout his arrest. He has not been charged
with any crime for over two years. Article 9 (2) of the Covenant states that “anyone who is
arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him”. The Working Group has previously stated
that, in order for a deprivation of liberty to have a legal basis, it is not sufficient for there to
be a law that may authorize the arrest, as the authorities must invoke that legal basis and
apply it to the circumstances of the case.38 This is typically39 done through an arrest warrant
or arrest order (or equivalent document). The reasons for the arrest must be provided
immediately upon arrest40 and must include not only the general legal basis of the arrest, but
also enough factual specifics to indicate the substance of the complaint, such as the wrongful
act and the identity of an alleged victim.41 The prompt notification of charges is necessary to
permit an accused to prepare their defence. In the present case there is no indication that this
obligation was fulfilled, nor is there any basis to conclude the situation was one in which a
warrant would not be required, such as flagrante delicto. No reason has been given for the
failure to inform Mr. Corbett of any charges against him for over two years. To the contrary,
according to the unrefuted charges, Mr. Corbett’s undertaking lawful activity in Afghanistan
and his entry had been approved by the Taliban authorities. Consequently, the Working
Group finds a violation of article 9 (2) of the Covenant.
68.
The source further submits that Mr. Corbett was never been brought before any court
or given access to means to challenge his detention. The Working Group notes that article 9
(3) of the Covenant provides that “anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to exercise judicial power
and shall be entitled to trial within a reasonable time or to release. It shall not be the general
rule that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgement” and article 9 (4) provides that “anyone who
is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful”.
69.
The Working Group has noted that, according to 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, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve legality
in a democratic society.42 This right, which is in fact a peremptory norm of international law,
applies to all forms of deprivation of liberty, applies to the following:
All situations of deprivation of liberty,43 including not only to detention for purposes
of criminal proceedings but also to situations of detention under administrative and
other fields of law, including military detention, security detention, detention under
counter-terrorism measures, involuntary confinement in medical or psychiatric
facilities, migration detention, detention for extradition, arbitrary arrests, house arrest,
solitary confinement, detention for vagrancy or drug addiction, and detention of
children for educational purposes.44
38 In cases of flagrante delicto, the opportunity to obtain a warrant will typically not be available.
39 Opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27.
40 Human Rights Committee, general comment No. 35 (2014), para. 27; and opinion No. 30/2017,
paras. 58 and 59.
41 Opinion No. 85/2021, para. 69.
42 Opinion No. 66/2020, para. 47; and A/HRC/30/37, paras. 2 and 3.
43 A/HRC/30/37, para 11.
44 A/HRC/30/37, annex, para. 47 (a).
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70.
Moreover, it also applies “irrespective of the place of detention or the legal
terminology used in the legislation. Any form of deprivation of liberty on any ground must
be subject to effective oversight and control by the judiciary”.45
71.
In the light of the unrefuted allegations from the source that Mr. Corbett was deprived
of the opportunity to challenge his detention, the Working Group is satisfied that his rights
under article 9 (3) and (4) of the Covenant were violated.
72.
For the foregoing reasons, the Working Group considers that the deprivation of liberty
of Mr. Corbett lacks legal basis and is thus arbitrary, falling under category I.
(b)
Category II
73.
In relation to category II, the source submits that Mr. Corbett’s arrest was the result
of him exercising his right to freedom of movement, which is protected by article 13 of the
Universal Declaration of Human Rights and article 12 of the Covenant. The Taliban has
chosen not to respond to this allegation.
74.
Article 12 (1) of the Covenant provides that “everyone lawfully within the territory of
a State shall, within that territory, have the right to liberty of movement and freedom to
choose his residence”. Article 13 of the Universal Declaration of Human Rights provides that
“everyone has the right to freedom of movement and residence within the borders of each
state”.
75.
Noting the lack of a response from the de facto authorities, the Working Group is
satisfied that Mr. Corbett’s detention resulted from his movement around Afghanistan,
particularly in Jowzjan. According to the unrefuted submissions, when Mr. Corbett and
others travelled to Jowzjan, they were told by the authorities there that foreigners were not
allowed to enter “certain places” in the country without permission. This indicates that it was
Mr. Corbett’s movement around the country, in addition to his foreign nationality – which is
addressed below under category V – that contributed to his detention. Consequently, his
detention was arbitrary under category II of the Working Group, in breach of article 13 of the
Universal Declaration of Human Rights and article 12 of the Covenant.
(c)
Category III
76.
Under category III, the source submits that Mr. Corbett was largely held
incommunicado. Specifically, he was denied visits from the International Committee of the
Red Cross and United States consular officials. Ultimately, he was visited on only two
occasions by officials from a third party and spoke to his family on only five occasions during
short phone calls. On a connected note, the source submits that Mr. Corbett was denied access
to a lawyer or other representative able to bring his case before a judge.
77.
All persons deprived of their liberty have the right to legal assistance by counsel of
their choice in accordance with article 14 (3) (b) of the Covenant. 46 Access should be
available at any time during their detention, including immediately after the moment of
apprehension, and such access must be provided without delay in the absence of exceptional
circumstances justifying limitations to such access. 47 Moreover, holding persons
incommunicado prevents prompt presentation before a judge, as provided for in article 9 (3)
of the Covenant,48 and violates the right under article 9 (4) of the Covenant to challenge the
lawfulness of the detention before a court.49 Judicial oversight of detention is a fundamental
safeguard of personal liberty50 and is essential in ensuring that detention has a legal basis.
Moreover, prohibiting contact with the outside world may violate rule 58 of the Nelson
45 Ibid., para. 47 (b).
46 See, e.g., opinion No. 38/2021.
47 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35. See also General Assembly resolution 73/181; CCPR/C/IRN/CO/3, para. 21;
and A/HRC/45/16, para. 51.
48 General comment No. 35 (2014), para. 35.
49 Se opinions No. 25/2021, No. 45/2019, No. 44/2019, No. 9/2019 and No. 35/2018.
50 A/HRC/30/37, para. 3; and CAT/C/VNM/CO/1, para. 24.
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Mandela Rules51 and principles 15, 16 (1) and 19 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
78.
The Working Group considers that the failure to provide Mr. Corbett with access to a
lawyer, and holding him incommunicado, seriously affected his ability to prepare a defence.
In these circumstances, the Working Group finds that the de facto authorities violated
Mr. Corbett’s right to adequate time and facilities for the preparation of his defence and to
communicate with counsel of his choosing under article 14 (3) (b) of the Covenant; that
principles 17 (1) and 18 (2) of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment were violated, as was his right to present an
effective defence through counsel of his choosing under article 14 (3) (d) of the Covenant;
and that his ability to contact the outside world was hampered in violation of rule 58 of the
Nelson Mandela Rules and principles 15, 16 (1) and 19 of the Body of Principles.
79.
The source conveys that Mr. Corbett has been subjected to physical torture while
detained and explicitly threatened with beatings, while also being forced to listen to other
prisoners being tortured. He was also held in solitary confinement for long periods of time
and given false information that raised his hopes, causing extensive psychological stress. He
is in bad health and has not received proper medical attention. The de facto authorities have
not denied these submissions.
80.
The right to freedom from torture is set out in article 5 of the Universal Declaration
of Human Rights and article 7 of the Covenant. 52 The Working Group has previously
concluded that when it is not possible for a person who is subjected to torture to prepare an
adequate defence for a trial that respects the equality of both parties, that situation amounts
to a fair trial violation for the purposes of category III. 53 Mistreatment and deplorable
conditions of detention also violate rules 1, 13, 21, 22 (1) and 23 (1) of the Nelson Mandela
Rules. Moreover, according to rule 45 of the Nelson Mandela Rules, the imposition of
solitary confinement must be accompanied by certain safeguards. Solitary confinement must
be used only in exceptional cases as a last resort, for as short a time as possible, and must be
subject to independent review and authorized by a competent authority. In addition, article
10 (1) of the Covenant provides that all persons deprived of their liberty must be treated with
humanity and dignity, and the Working Group has confirmed that this includes the provision
of proper medical care to those in detention.54
81.
In the light of the unrefuted arguments concerning Mr. Corbett’s mistreatment, the
Working Group considers that these allegations are established and demonstrate a wide
variety of violations relevant to mistreatment and torture. Collectively, they substantially
undermined his capacity to defend himself and therefore deprived him of his due process
rights under article 14 of the Covenant.55 In accordance with paragraph 33 (a) of its methods
of work, the Working Group refers the case to the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment.
82.
For the reasons above, the Working Group concludes that the breaches of
Mr. Corbett’s due process rights are of such gravity as to give his deprivation of liberty an
arbitrary character, falling within category III.
(d)
Category V
83.
In relation to category V, the source submits that Mr. Corbett’s detention was due to
his status as a citizen of the United States of America. It notes that there is a history of
persecution of United States citizens by the Taliban. For their part, the de facto authorities
have chosen not to deny these allegations.
51 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
52 See also rule 1 of the Nelson Mandela Rules, article 10 (1) of the Covenant and principle 6 of the
Body of Principles.
53 Opinions No. 32/2019, para. 42; and No. 20/2022, para 104.
54 Opinion No. 26/2017, para. 66.
55 A/HRC/30/37, annex, paras. 12, 15, 67 and 71.
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84.
The unrefuted allegations indicate that Mr. Corbett was detained on the basis of his
foreign nationality as a citizen of the United States.56 His differential treatment and the
statements made by guards about Americans in Afghanistan support this finding. On this
basis, the Working Group finds that Mr. Corbett was deprived of his liberty on discriminatory
grounds, on the basis of being a foreign national,57 in violation of his rights under articles 2
and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
His deprivation of liberty is arbitrary according to category V. 58 The Working Group
considers that this discriminatory treatment further exacerbates the arbitrariness of
Mr. Corbett’s detention and merits the case being referred to the Special Rapporteur on the
situation of human rights in Afghanistan under paragraph 33 of the methods of work.
3.
Disposition
85.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ryan Corbett, being in contravention of articles 2, 5, 9,
10, 11 and 13 of the Universal Declaration of Human Rights and articles 2, 7, 9, 10,
12, 14 and 26 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I, II, III and V.
86.
The Working Group requests the de facto authorities to take the steps necessary to
remedy the situation of Mr. Corbett without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
87.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be accord Mr. Corbett an enforceable right to
compensation and other reparations, in accordance with international law.
88.
The Working Group urges the de facto authorities to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Corbett and to take appropriate measures against those responsible for the violation of his
rights.
89.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights in Afghanistan
and to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment.
90.
The Working Group requests the de facto authorities to disseminate the present
opinion through all available means and as widely as possible.
4.
Follow-up procedure
91.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the de facto authorities 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. Corbett;
(b)
Whether an investigation has been conducted into the violation of
Mr. Corbett’s rights and, if so, the outcome of the investigation;
(c)
Whether any other action has been taken to implement the present opinion.
56 The Working Group recalls the Declaration against Arbitrary Detention in State-to-State Relations,
which provides that “the arbitrary arrest or detention of foreign nationals to compel action or to
exercise leverage over a foreign government is contrary to international law”. See the Working
Group’s comments in A/HRC/48/55, paras. 61–63, and the text of the Declaration against Arbitrary
Detention in State-to-State Relations, available at www.international.gc.ca/news-
nouvelles/assets/pdfs/arbitrary_detention-detention_arbitraire-declaration-en.pdf.
57 Opinions No. 28/2016, paras. 47–49; No. 9/2017; No. 33/2019; and No. 83/2020.
58 See opinions No. 75/2017, No. 79/2017, No. 35/2018, No. 36/2018, No. 45/2018, No. 46/2018,
No. 9/2019, No. 44/2019 and No. 45/2019.
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92.
The de facto authorities 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.
93.
The Working Group requests the source and the de facto authorities 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 of any failure to take action.
94.
The Working Group recalls that the Human Rights Council has emphasized the
importance of cooperating with the Working Group and of taking account of its views and,
where necessary, taking appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and informing the Working Group of the steps taken.59
[Adopted on 2 April 2025]
59 Human Rights Council resolution 51/8.