A/HRC/22/44 according to treaty obligations.8 Such resolutions demonstrate the consensus that the prohibition of arbitrary deprivation of liberty is of a universally binding nature under customary international law. 44. The International Court of Justice in its judgment in the case concerning United States diplomatic and consular staff in Tehran emphasized that “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights”.9 45. The prohibition of “arbitrary” arrest and detention has been recognized both in times of peace and armed conflict.10 International law recognizes detention or other severe deprivation of physical liberty as a crime against humanity, where it is committed as part of a widespread or systematic attack against any civilian population.11 46. Detailed prohibitions of arbitrary arrest and detention are also contained in the domestic legislation of States not party to the International Covenant on Civil and Political Rights, including China (art. 37 of the Constitution), Qatar (art. 40 of the Code of Criminal Procedure), Saudi Arabia (art. 36 of the Saudi Basic Law of Governance and art. 35 of the Saudi Law of Criminal Procedure (Royal Decree No. M/39)), the United Arab Emirates (art. 26 of the Constitution) and others. This practice of non-States parties to the major human treaties is further evidence of the customary nature of the prohibition of the arbitrary deprivation of liberty. 47. The prohibition of arbitrary deprivation of liberty and the right of anyone deprived of his or her liberty to bring proceedings before a court in order to challenge the legality of the detention, known in some jurisdictions as habeas corpus, are non-derogable under both treaty law and customary international law. Regarding the former, this is explicitly recognized by the Arab Charter, which lists the right to not be arbitrarily deprived of one’s liberty as non-derogable (art. 14, para. 2). Similarly, the American Convention prohibits derogation from “the judicial guarantees essential for the protection of [non-derogable] rights” (art. 27, para. 2). Under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter and the European Convention, derogation from the prohibition of arbitrary deprivation of liberty is excluded. This follows from the condition common to all derogation provisions in human rights treaties that any measure taken pursuant to derogation be necessary for the protection of the particular interest under threat.12 48. Arbitrary deprivation of liberty can never be a necessary or proportionate measure, given that the considerations that a State may invoke pursuant to derogation are already 8 9 10 11 12 18 For example, General Assembly resolution 62/159. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgments, I.C.J. Reports 1980, p. 42, para. 91. See, for example, Human Rights Committee, concluding observations on the combined fourth and fifth periodic reports of Sri Lanka, CCPR/CO/79/LKA, para. 13; concluding observations on the initial report of Uganda, CCPR/CO/80/UGA, para. 17; concluding observations on the third periodic report of the Sudan, CCPR/C/SDN/CO/3, para. 21. See also International Committee of the Red Cross, Customary International Humanitarian Law Database, rule 99 (deprivation of liberty). Article 7, paragraph 1 (e), of the Rome Statute of the International Criminal Court; see also the Working Group’s opinions No. 5/2010 (Israel), No. 9/2010 (Israel) and No. 58/2012 (Israel). See, for example, art. 4, para. 1, of the Covenant on Civil and Political Rights; art. 15, para. 1, of the European Convention; art. 27, para. 1, of the American Convention; art. 4, para. 1, of the Arab Charter on Human Rights. GE.12-18935