A/HRC/39/CRP.2 established by law,380 or is otherwise arbitrary in the sense of being inappropriate, unjust, unreasonable or unnecessary in the circumstances. 381 222. Arbitrary deprivation of liberty is also prohibited under international humanitarian law.382 Detention of civilians or other protected persons, other than for reasons and in circumstances permitted by international law, is considered unlawful confinement. While international humanitarian law does not explicitly address security detention of civilians in the context of a non-international armed conflict, its requirement of humane treatment of persons implies freedom from arbitrary deprivation of liberty and comparable protection of procedural rights (for example, to be informed of the reasons and given an opportunity to challenge the lawfulness of the detention). 223. Under the national law of Myanmar, both the Constitution and the Criminal Procedure Code prohibit detention of civilians for more than 24 hours without a court’s permission; 383 with a constitutional exception if such detention is a matter for “precautionary measures taken for the security of the Union or prevalence of law and order, peace and tranquillity in accord with the law in the interest of the public”.384 The Criminal Procedure Code allows judges to extend the 24-hour custody period to 15 days, or 30 days in the case of offences punishable by more than seven years imprisonment. 385 224. Under Myanmar domestic law, the powers of arrest principally lie with the Police. However, under the Criminal Procedure Code, Tatmadaw officers may also arrest or confine persons forming part of an assembly that manifestly endangers public security when no magistrate can be communicated with, but they must communicate with a magistrate when it becomes practicable to do so.386 Furthermore, the State Protection Act, in force from 1975 until its repeal in May 2016, allowed Tatmadaw officers to arrest and detain any person when ordered to do so by the “Central Board”.387 Anyone taken into custody by the Tatmadaw must be swiftly handed over to police authorities. 225. The prohibition of enforced disappearances is a norm of peremptory law (jus cogens). Enforced disappearances violate the right to liberty and security of the person and violate or constitute a grave threat to the right to life, along with several other rights. International humanitarian law also prohibits enforced disappearances.388 An enforced disappearance is constituted by three elements: (1) a person is detained or otherwise deprived of liberty; (2) the deprivation of liberty is carried out by State agents or by persons or groups of persons acting with the authorisation, support or acquiescence of the State; and (3) a refusal to acknowledge the deprivation of liberty, or concealing the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.389 380 381 382 383 384 385 386 387 388 389 United Nations Human Rights Committee, “General comment No. 35 - Article 9 (Liberty and security of person)” (CCPR/C/GC/35), para. 11. Ibid. para. 12: “The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. See common art. 3 of the Geneva Conventions, requiring that all civilians and persons hors de combat are treated humanely. Arbitrary detention is considered incompatible with this requirement. See also ICRC/Customary IHL, rule 99. Constitution of Myanmar, s. 21(b); Criminal Procedure Code of Myanmar, s. 61. Constitution of Myanmar, s. 376. Criminal Procedure Code of Myanmar, s. 60-61, 81, 167. Criminal Procedure Code of Myanmar, s. 131. State Protection Act (1975), s. 15; Criminal Procedure Code of Myanmar, s. 21. As per s. 8 of the State Protection Act, a Central Board is formed by the Cabinet and chaired by the Minister for Home and Religious Affairs, and includes the Minister for Defence and the Minister for Foreign Affairs. ICRC/Customary IHL, rules 98 and 150. CPED, art. 2. 57