Communication 431/12 – Thomas Kwoyelo v. Uganda
1. Every individual shall have the right to have his cause heard. This
comprises:
a. The right to an appeal to competent national organs against acts
violating his fundamental rights as recognized and guaranteed
by conventions, laws, regulations and customs in force;
b. The right to be presumed innocent until proved guilty by a
competent court or tribunal;
c. The right to defence, including the right to be defended by
counsel of his choice;
d. The right to be tried within a reasonable time by an impartial
court or tribunal.
2. No one may be condemned for an act or omission which did not constitute
a legally punishable offence at the time it was committed. No penalty may
be inflicted for an offence for which no provision was made at the time it
was committed. Punishment is personal and can be imposed only on the
offender.
217.
As established above, the Victim was caught while he was on active combat
mission. Thus, the issue of arbitrary arrest does not arise, confining the
consideration hereunder to the existence or otherwise of arbitrary detention and
mistreatment from the time of capture until the time of transfer to police custody.
In assessing the legality of the conditions and manner of his detention during this
period the applicable provisions are Articles 6 and 7 of the Charter and Common
Article 3 and Article 6 of Additional Protocol II to the 1949 Geneva Conventions.
218.
Detention or deprivation of liberty is an inevitable and lawful incidence of
armed conflict, including NIAC.52 The applicable rules of IHL prescribe certain
standards of treatment that should apply upon the capture and during the
detention those captured in the course of hostilities. Common Article 3 of the
Geneva Conventions of 1949 stipulates that ‘[p]ersons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and those
52
ICRC, n 34 above, p.15.
59
62nd Ordinary Session, 25 April – 9 July 2018
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