Arbitrary Detention Research Articles

Represión del gobierno del Distrito Federal a la protesta, 2012-2014. Perspectiva de la amenaza en democracias federales

<p>La represión de la protesta en democracias es explicada de distintas maneras en la literatura. Desde la perspectiva de la amenaza, se hipotetiza que los gobiernos locales son más propensos a reprimir aquellas protestas dirigidas al ámbito federal por no poder negociar soluciones a esas demandas. Se estudian siete casos en los que hubo detenciones arbitrarias en el Distrito Federal, entre 2012 y 2014, las cuales se toman como indicador de represión. A partir de un análisis probabilístico con una regresión logística binomial de eventos raros y un análisis determinístico con un método comparado cualitativo (QCA), se encuentra que las demandas dirigidas al ámbito federal y la violencia son condiciones necesarias para la represión, mientras que la variedad de reclamos y su radicalidad contribuyen a que se lleven a cabo detenciones arbitrarias.</p>

The Law Relating to Bail: Why Is It Difficult to Grant Bail to Some of the Offenses?

The liberty of the individual must be guarded, protected and promoted but the interests of the society, of which the individual is component, must be taken into account if society is to move forward and flourish instead of stagnating and breaking apart”. Makame, J. (as he then was). Bail has its roots from both spiritual and human development concepts. It is the matter of law and practice that, any person who is related to the accused person may apply for the conditional release from the custody of the accused person. It is the right given to the suspect or the accused person to be released or be free from custody while waiting for further investigations and other criminal procedures to take place or to continue taking place. Such released must have a number of conditions which needs to be fulfilled by the suspect so as to be free from being detained, such as the presence of surety (ies). Failure to comply with such conditions may result the suspect to continued being detained. The Book of Genesis reports that the first crime as Adam and Eve's violation of habitation rules in the Garden of Eden. They were summarily banished from the premises. No criminal trial proceedings were required because the Omniscient Judge had full knowledge of all relevant facts. The next reported criminal act is the murder of Abel by Cain. In this instance, the Omniscient Judge held an inquiry as to what had happened to Abel. Disbelieving Cain's testimony, the Judge sentenced Cain to wander the Earth forever. Despite the summary nature of Cain's murder trial, it demonstrates the basic elements of modern constitutional due process: notice and opportunity to be heard. After the murder of Abel, responsibility for identifying criminals and imposing punishments passed to humankind. The Old Testament Books of Exodus, Leviticus, and Deuteronomy codify specific criminal acts and begin to outline procedures for determining guilt or innocence and imposing punishment. The Book of Numbers requires that Moses establish cities of refuge for persons awaiting trial on charges of manslaughter. These are the functional equivalent of today's bail laws. Numbers also states that persons accused of murder will stand before the congregation to be judged an early reference to the criminal proceeding of trial by jury. The reason as to why we have bail is the Constitutional Principle on Innocence. That ‘Let the accused to be free for a while as long as his guilty has not yet been established beyond reasonable doubt.’ No arbitrary arrest or detention. Bail must not be punitive by nature rather than assurance of accused attendance before the court of law when needed. In the case of Annette Pagnoule (on behalf of Aboulaye Mazou) v. Cameroon the African Commission held that detention without any charge being brought against the suspect constitutes arbitrary deprivation of liberty. In the case of Van Alphen v The Netherlands, the Human Rights Committee stated that “the term ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability”. This right is given to any person. In the case of Tito Doughas Lyimo v. R, it was held that, “bail is a right and not a privilege”. However, there are some grounds which prevent the suspect or accused person from being given this right. It depends with the degree of the crime committed or the nature of the crime committed or sometimes the circumstances in which the crime was committed or the relationship between the suspect or accused person and the surrounding society. It also depends on the characteristics or behaviours of the said person. For instance, if his release may affect the criminal investigations and procedures to the extent of affecting the protection of other’s rights hence render to injustice other than justice to the victim(s). The same was argued in the case of Daudi Pete V DPP, the court held that bail is a right and not a privilege and therefore Section 148 (5) (e) of the Criminal Procedure Act which denied bail to an accused of armed robbery was declared unconstitutional since it violates human rights. This paper presents some of the circumstances in which bail cannot be granted by a court, police or any other institution with competent jurisdiction to do so.

Arbitrary Detention: A Challenge Faced by Muslim Minority in India

Muslims form the largest religious minority in India. Census of India 2011 registered about 14.4 per cent of India’s total population as Muslims. Being minority Muslims are one of the weaker sections of society and the most oppressed ones. Majority of the Muslims especially youth are going through distress and trauma of terrorism tags. Muslims are the prime targets of anti-national activities and often jailed and killed in fake encounters. They are the most suffered section of the society and a little is being done for their upliftment. An attempt has been made to analyse the condition of the Muslim minority in India in the present democratic scenario. The study mainly focused on the consequences of false charges and fake encounters on the socio-economic conditions of Muslims and their families in India. The study is actually an investigation in some thrust areas in which Muslim section of the society is being demoralized deeply in India. The government of India established The Ministry of Minority Affairs on 29th January 2006 to look after the issues of minority communities and suggest development frameworks for their benefit. The 2017 World Report of the Human Rights Watch[1] also finds India as the violator of human rights with respect to freedom and treatment of minorities.[1] Human Rights Watch is a non-profit, non-governmental human rights organization, known for its accurate fact-finding, impartial reporting, effective use of media, and targeted advocacy.

Compulsory treatment of drug use in Southeast Asian countries

BackgroundSeveral Southeast Asian countries have implemented compulsory drug detention centres in which people who use or are suspected of using drugs, mainly amphetamine-type stimulants, are confined without their consent and in most cases without due process and clinical evaluation of their substance use disorder.Given these facilities’ lack of access to evidence-based drug dependence treatment, and the human rights implications of peoples’ arbitrary detention under the pretext of “treatment”, international organizations have called for their closure. The aim of this study was to estimate recent numbers of compulsory drug treatment centres and of people in these centres in the region. MethodsWe conducted an analysis of cross-sectional governmental data collected from seven countries in the region with compulsory drug detention centres, namely Cambodia, China, Lao PDR, Malaysia, the Philippines, Thailand and Viet Nam. We computed descriptive data provided by government representatives for the period between 2012 and 2014. ResultsThe total number of people in compulsory detention centres overall decreased by only 4% between 2012 and 2014. In 2014, over 450,000 people were detained in 948 facilities in the seven countries. While only two countries decreased the number of compulsory detention centres, most countries increased the number of people detained. ConclusionsIn spite of international calls for the closure of compulsory detention centres, the number of facilities and detained people remained high in the seven countries included in the analysis. These officially reported figures are concerning regarding access to effective drug dependence treatment and given the potential for additional human rights abuses within compulsory detention centers.Further concerted policy and advocacy efforts should support transition of treatment for people with drug dependence towards human rights-based and evidence-based drug dependence treatment. Expansion of existing drug and HIV services in the community rather than compulsory treatment modalities will effectively address the region’s drug and HIV burden.

Towards human rights-based guidelines for the response to infectious disease epidemics: righting the response

ABSTRACTWhile there are international guidelines in place for the implementation of a rights-based response to quick-onset natural disasters, there is a notable void in international guidance on the promotion of a rights-based approach to infectious disease epidemics. The outbreak of an epidemic has the potential to implicate a range of human rights, including the rights to health, information, freedom from arbitrary detention and freedom of movement, and other socio-economic rights. The need for guidance on how to address deficiencies in the realisation of these rights was made acutely clear following the outbreak of Ebola Virus Disease (EVD) in March 2014. By analysing how the health standards existent and containment measures employed in Liberia during the escalation and de-escalation of the EVD outbreak measured up against states’ obligations in international human rights law, this paper demonstrates that a rights-based response to epidemics facilitates a more effective, comprehensive, and inclusive recovery. This paper therefore argues that a new set of guidelines for the implementation of a rights-based response to epidemics should be developed, and puts forward a number of recommendations as to the content of these guidelines.

A Discourse on the Legacy of Colonialism for Women in Africa

The emerging concept of Gender Based Violence (GBV); the many forms of violence committed against women and girls, is among the most prevalent human rights violations in the world. A 2017 United Nations report on conflict-related sexual violence notes that “sexual violence continues to be employed as a tactic of war, with widespread and strategic rapes, including mass rapes, allegedly committed by several parties to armed conflict, mostly in conjunction with other crimes such as killing, looting, pillage, forced displacement and arbitrary detention” (UN Security Council, 2017, p. 5). The violence that targets women, in turn, undermines the health, dignity, security, and autonomy of its victims. In this paper I analyze two perspectives on women in Africa and in the west beyond an analysis of GBV, to focus on a discussion of the role and place of women and how it was framed under colonial governance and the implications that these transformations had on how we make sense of the place of women in society today. I will first discuss and review literature on the impact of colonialism in Africa, followed by a critique of the feminist theory in the west and then provide an alternative discourse on the study of women in the African context. The alternative to the western narrative that dominates scholarship on women’s history in Europe and the United States is offered by Ife Amadiume and Oyeronke Oyewumi’s scholarly contributions. Both scholars offer an alternative which has been ignored in the west and demonstrates that the ideology of the struggle for women in the west has failed to take into account the distinctive socio-historical context of women’s role and their place in African societies.

Julian Assange, the UN and the limits of Detention

The idea of arbitrary detention and how it violates various international protocols is a pressing theme of international juridical and philosophical opinion. Such conduct is an expression of unjustified political control by States over citizens, and speaks to the ever present dangers of power unwatched and unregulated. The political prisoner remains the classic figure of this enterprise, both a target and a threat. What is less examined in this regard is how that control manifests itself, a matter that has proven to be a far more complex affair. This paper examines that debate by looking at the case of Julian Assange and his claim that he is being arbitrarily detained in the Ecuadorean embassy in London. The legal claim that he is not is critiqued as being unduly positivist and in need of correction, referring to the findings of the UN Working Group on Arbitrary Detention in February 2015.

Griffiths v. Australia

Human rights — Detention — Right to a hearing — Extradition cases — Whether author’s detention pending extradition arbitrary — International Covenant on Civil and Political Rights, 1966 — Article 9 of the Covenant — Right to liberty and security of person — Arbitrary detention — Effective remedyInternational tribunals — United Nations Human Rights Committee — Jurisdiction — Admissibility — Other procedures of international investigation — Whether failure to exhaust local remedies — Whether author’s claim inadmissible ratione materiae

Aarrass v. Spain

Human rights — Torture — Right to a fair trial — Arbitrary deprivation of liberty — Extradition — Obligations under Article 7 of International Covenant on Civil and Political Rights, 1966 — Risk of torture and other cruel, inhuman or degrading treatment or punishment — Arbitrary detention — Double punishment — Prohibition of discrimination — State Party’s non-compliance with request for interim measures — Whether State Party violating its obligations under Article 7 of Covenant — Effective remedyInternational tribunals — United Nations Human Rights Committee — Jurisdiction — Admissibility — Other procedures of international investigation — Whether failure to exhaust local remedies — United Nations Human Rights Committee

Assange (Sweden and the United Kingdom)

Human rights — Right to a fair trial — Deprivation of liberty — Fugitive wanted for extradition seeking asylum in embassy — Whether detained in embassy — Whether detention arbitrary — United Nations Human Rights Council Working Group on Arbitrary Detention regarding deprivation of liberty as arbitrary in five categories — Whether any category applicable — Whether deprivation of liberty consistent with relevant international norms — Universal Declaration of Human Rights, 1948, Articles 9 and 10 — International Covenant on Civil and Political Rights, 1966, Articles 7, 9(1), (3) and (4), 10 and 14 — Responsibility of United Kingdom and Swedish Governments — Remedy

The Right of the Accused in Saudi in Criminal Procedure during Investigation Process and Arbitrary Dentation and Prohibits Torture and Protects the Rights of Suspects to Obtain Legal Council

Saudi Arabia has recent in years pass several important legislations to ensure a fair and balanced justice system, including: 1) The Law of Procedure Before Sharia Courts of September 2001, which grants defendants the right to legal representation and outlines the process by which please, evidence and experts are heard by the courts. 2) The Code of Law Practice of January 2001, which outlines requirements necessary to become an attorney and defines the duties and right of lawyers, including the right of attorney-client privilege. 3) The Law of Criminal Procedure of May 2001, which protects a defendant right with the regard to interrogation, investigation, and incarceration; outlines a series of regulations that justice and law enforcement authorities must follow during all stages of legal process, from arrest and interrogation to trial and sentencing; prohibits torture and protects the right of suspects to obtain legal counsel; and limits the period of arbitrary detention. The main objective of this study is to examine the operation of the criminal justice system in Saudi Arabia in light of the international human rights standards pertaining to the administration of justice. It involves the international human rights treaties and focuses mainly on the instruments in which the right to a fair trail in Saudi Arabia.

Mexico: A Failed State or a Criminal State? The Nestora Salgado Case

For decades, the people in the Mexican state of Guerrero have been immersed in poverty, insecurity, and militarization. Accordingly in 1995, almost a year after the Zapatista National Liberation Army (EZLN) uprising, a community police corporation was formed with members of indigenous communities, in order not only to protect the population against organized and regular crime but also to administer justice with the legal grounds provided by the International Labour Organization Convention 169. Since then, many members of the Guerrero community police have been incarcerated for political reasons. One of them is Nestora Salgado, who was illegally detained by the Mexican army and incarcerated in a high security prison in Nayarit for almost 20 months. In December 2015, the United Nations Working Group on Arbitrary Detention deemed the detention of Nestora Salgado as illegal and arbitrary, and requested her immediate release.

Dealing with Migrants in the Central Mediterranean Route: A Legal Analysis of Recent Bilateral Agreements Between Italy and Libya

AbstractDealing with the current flow of migrants flocking to the shores of southern European countries remains high on the international agenda. At the end of 2016, 276,957 migrants were waiting in Libya to cross the sea. Many of them were subject to human rights violations and abuses such as arbitrary detention, torture, unlawful killings, sexual exploitation and even slavery (IOM, 2017). The international response has been, so far, insufficient and new ideas and practices are urgently needed. After providing an overview of the legal framework and of the efforts carried out by the relevant international and regional organizations, this article focuses on recent treaties concluded between Italy and Libya, and argues that the new bilateral agreements represent an example of how States are responding to this challenge in an attempt to strike a balance between the need to strengthen the protection of migrants’ rights and the necessity to guarantee the security of national borders.

Dictatorship as occupation in Thailand

ABSTRACTOn 22 May 2014, a junta calling itself the National Council for Peace and Order (NCPO) launched the 12th coup in Thailand since the end of the absolute monarchy in 1932. The NCPO's rule consolidated into a dictatorship marked by sweeping arrests, arbitrary detention, the criminalization of political participation, and use of military courts to prosecute dissidents. During the three years of rule by the NCPO, the repression of dictatorship has intensified during the royal transition from Rama IX to Rama X. Concerned with the ongoing crisis of rights violations and lack of clear signs of a transition from dictatorship to democracy, this article proposes analyzing the current Thai regime as a form of occupation. The occupation is characterized by the arbitrary exercise of law, citizen complicity, and persistent fear, particularly around Article 112, the law criminalizing lèse majesté. Drawing on the work of Eyal Benvenisti, the article first outlines the broad contours of occupation, then turns to a specific instance of injustice in the exercise of Article 112, next examines the foundational inequality behind citizen complicity in the regime, and finally, reflects on the urgency of analysis given the ongoing expansion of fear and uncertainty.

Right to Nationality and the Reduction of Statelessness: the Responses of the International Migration Law Framework

Statelessness is the absence of the right to have a legal connection between nationality and state. The state of nationality is an identity to enjoy a ‘right to have rights’. Statelessness disrupts the enjoyment of all the rights which are generally perceived or purported to have been granted for all including inter alia the right to work, the right to vote, the right to health, the right to welfare benefits or welfare and a child’s right to education. Statelessness precludes people from relocating and proliferates their chances of arbitrary arrest, confinement or detention with no adequate answers. Succinctly averring, statelessness demotes and generates a state of irrelevance among the people with no hope of their condition ever improving, no possibility for a better future for themselves or their posterity. The state of statelessness dismantles the idea of cohesive human existence in a civilized world. Therefore, statelessness is a deprivation of a range of rights and benefits that bestow upon individuals constitutional identity, national security and state protection popularly known as nationality or citizenship. Statelessness may be imputed to a catena of causes inter-alia administrative practices, conflict of laws, discrimination, denationalization, matrimonial litigation, non-registration of births, persecution, renunciation, transfer of territories, re-demarcation of new boundaries, state succession, terrorism, climate change and forced displacement and migration. But its magnitude and scale still remains to be mapped because the problem of statelessness is a new predicament for international law and its offshoots. It has emerged as an ordeal for the international community that has to attend to the plight of 10 million stateless persons worldwide. Thus, it is abundantly clear that the United Nations High Commissioner for Refugees’ (UNHCR) mandate is well founded in light of the sheer amount of stateless persons. Furthermore, there are also at least 1.5 million stateless refugees and around 3.5 million stateless refugees from Palestinian origin whose problems have posed challenges to the international law framework. In this paper, an attempt has been made to decipher the miasma of statelessness while locating the right to nationality of stateless persons. Suggestions are made with respect to how to end and ensure the reduction of statelessness under the architecture of international law within and beyond the pragmatism of international relations, diplomatic narratives and orientations engrossed in Occidentalism and orientalism.

The ECOWAS Court condemns the Republic of Togo for arbitrary detention (ECW/CCJ, Judgment n° ECW/CCJ/JUD/02/16, 16 February 2016, Parounam vs Togo)

The ECOWAS Court condemns the Republic of Togo for arbitrary detention (ECW/CCJ, Judgment n° ECW/CCJ/JUD/02/16, 16 February 2016, Parounam vs Togo)

Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward

AbstractInternational humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

The Civil Redress and Historical Memory Act of 2029: A Legislative Proposal

During the extant “War on Terror,” U.S. and foreign nationals who did not engage in hostilities were detained and mistreated abroad by the United States or by other countries with the acquiescence of the United States. These individuals were accused of being terrorists or were suspected of associating with terror groups, but they were, in fact, innocent. They were eventually released and were never charged by the United States with any crime. Despite their innocence, the United States has failed to provide them with any form of redress for their mistreatment. The Bush, Obama, and Trump administrations refused to apologize or provide any reparations to these individuals. The federal courts have consistently dismissed their efforts to seek redress through legal process. And, to date, Congress has remained silent. To remedy these acts of injustice, this Article offers a legislative proposal based on the Civil Liberties Act of 1988, which Congress adopted to address the discrimination and detention of Japanese Americans during the Second World War. Based on this historical analog, this Article proposes the adoption of the Civil Redress and Historical Memory Act of 2029, which would establish a commission of inquiry to investigate these cases of arbitrary detention and mistreatment perpetrated by the United States during the War on Terror. The Act would offer an apology and provide restitution to individuals who were wrongfully detained and mistreated by the United States or by other countries with U.S. complicity during the War on Terror. The Act would also establish a public education program that would publicize the commission’s findings and promote awareness of human rights in the United States and abroad.

Gender, Race, and Politics in Contemporary Argentina: Understanding the Criminalization of Activist Milagro Sala, Leader of the Organización Barrial Tupac Amaru

This article unveils the gendered, racialized, and silent sexual dimensions at play in the criminalization of Milagro Sala, the charismatic and controversial female indigenous leader of the Organización Barrial Tupac Amaru in Argentina. It argues this organization was able to contest narrow definitions of women's welfare used in local state bureaucracies in terms of certain redistribution and recognition, while fostering complex and controversial state-movement relations in terms of transparency and accountability. In important ways, Tupac Amaru politicized the “undeserving poor.” Women who did not conform to the moral prescriptions that patrol the conduct of poor women were the backbone and the leadership of the organization. Drawing on interviews, fieldwork materials, and documents gathered between 2009 and 2017, this paper shows that the main problems created by the criminalization of the organization were not only the arbitrary detention of Sala. Equally significant, the criminalization also brought about sudden negative changes in poor women and LGBT popular sectors' living conditions, employment opportunities, and access to health care, alongside the overall erosion of minimal gains in social and economic rights. It ultimately undermined the legitimacy of rights-based demands of popular and indigenous sectors in a multi-ethnic society.

Gender, Race, and Politics in Contemporary Argentina: Understanding the Criminalization of Activist Milagro Sala, Leader of the Organización Barrial Tupac Amaru

This article unveils the gendered, racialized, and silent sexual dimensions at play in the criminalization of Milagro Sala, the charismatic and controversial female indigenous leader of the Organización Barrial Tupac Amaru in Argentina. It argues this organization was able to contest narrow definitions of women's welfare used in local state bureaucracies in terms of certain redistribution and recognition, while fostering complex and controversial state-movement relations in terms of transparency and accountability. In important ways, Tupac Amaru politicized the “undeserving poor.” Women who did not conform to the moral prescriptions that patrol the conduct of poor women were the backbone and the leadership of the organization. Drawing on interviews, fieldwork materials, and documents gathered between 2009 and 2017, this paper shows that the main problems created by the criminalization of the organization were not only the arbitrary detention of Sala. Equally significant, the criminalization also brought about sudden negative changes in poor women and LGBT popular sectors' living conditions, employment opportunities, and access to health care, alongside the overall erosion of minimal gains in social and economic rights. It ultimately undermined the legitimacy of rights-based demands of popular and indigenous sectors in a multi-ethnic society.