Incommunicado and Arbitrary Detention

02.08.2022

Fleur Harmsen

Tibet and Human Rights Researcher,

Global Human Rights Defence.

         Mr Tenzin Tharpa, who has been arbitrarily detained since June 2020, has been sentenced to two years and six month in prison for helping local Tibetans send money to their relatives in India. Human Rights watch reported on Tharpa’s detention alongside that of his cousin’s Ms Lhamo who has died in August 2020 due to custodial torture. After Ms Lhamo’s death, the whereabouts of Mr Tenzin Tharpa deamined unknown as he was subjected to incommunicado detention. Mr Tharpar was sentenced to prison in a secret trial, without fair representation to the court. He was sentenced to prison after helping his cousin, Ms Lhamo,  send money to family members and relatives in India, the latter going against the 2014 Chinese regulations prohibiting local Tibetans from maintaining contact with Tibetans in exile in India. 

Incommunicado detention occurs when an individual is denied correspondence with anyone outside of the center and their family, loved ones and acquaintances are not given information about the individual’s whereabouts and well-being, and visits are disallowed. Such treatment not only violates the right to correspondence under article 12 of the Universal Declaration of Human Rights, but it also amounts to torture due to the psychological suffering such treament causes. Indeed, in the ruling Francisco Larez v Bolivarian Republic of Venezuela, the Committee Against Torture stipulates that incommunicado detention in itself constitutes a form of torture within the meaning of article 1 of the UNCAT (Francisco Larez v. Bolivarian Republic of Venezuela, pp. 6.4). According to the Committee, the suffering caused by incommunicado detention amounts to torture due to the severe stress and cruel treatment endured by the detainee. 

In this regard, China is seen to violate article 12 of the UDHR as well as the jus cogens principle that is the right to be free from torture as it held Mr Tenzin Tharpa in incommunicado detention, inflicting suffering that amounts to torture. 

Sources and further reading:

 CAT (2015) Hilda Mariolyn Hernández Colmenarez and Francisco Arturo Guerrero Sánchez v Venezuela, No. 456/2011, 15 May 2015. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsqlpKjSuhb3H3Sm4FHCtH5NrGDbU4xHOXjYvvq%2BdS8qKeBKdjNgjFhszqcihNtO24dMgBrCg5hmihM2wCVU8s7Rg2p9kBbOTXNLDpbSNjFj8%2BYOnDc8VtEweVCJ2i27EvQ%3D%3D

Dolma, Y. (2022, August 2). Tibetan man who helped his cousin Lhamo send money to India was sentenced to 2.5 years in prison. Retrieved August 2nd 2022 from: https://www.thetibetpost.com/en/news/132-tibet/7385-tibetan-man-who-helped-his-cousin-lhamo-send-money-to-india-was-sentenced-to-2-5-years-in-priso

 The Tibetan Centre for Human Rights and Democracy. (2022, August 2). Tibetan businessman detained incommunicado found to be sentenced to 2.5 years in prison. Retrieved August 2nd 2022 from: https://tchrd.org/tibetan-businessman-detained-incommunicado-found-to-be-sentenced-to-2-5-years-in-prison/