Arbitrary Detention Research Articles

Medical and social issues of child refugees in Europe

In mid-2015, there were an estimated 20.2 million refugees in the world; over half of them are children. Globally, this is the highest number of refugees moving across borders in...

All the Laws But One: Civil Liberties in National Emergencies

Former Chief Justice William Rehnquist’s book All the Laws But One is an account of the history of civil liberties during times of war and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, focusing on cases involving the Civil War, World War I, and World War II. On the other hand, events of the last century, including threats of severe economic collapse, natural disasters such as earthquakes, destructive hurricanes, and tsunamis, outbreaks of infectious diseases or other public health emergencies, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through confiscation of property, arbitrary detentions, mandatory evacuations, mandatory vaccinations, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use — and abuse — these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these abuses have made a mockery of the rule of law. We should not be surprised when it happens again.

Tensions between policy and practice: A qualitative analysis of decisions regarding compulsory admission to psychiatric hospital

The use of detention for psychiatric treatment is widespread and sometimes necessary. International human rights law requires a legal framework to safeguard the rights to liberty and personal integrity by preventing arbitrary detention. However, research suggests that extra-legal factors may influence decisions to detain. This article presents observational and interview data to describe how decisions to detain are made in practice in one jurisdiction (England and Wales) where a tension between policy and practice has been described. The analysis shows that practitioners mould the law into ‘practical criteria’ that appear to form a set of operational criteria for identifying cases to which the principle of soft paternalism may be applied. Most practitioners also appear willing, albeit often reluctantly, to depart from their usual reliance on the principle of soft paternalism and authorise detention of people with the capacity to refuse treatment, in order to prevent serious harm. We propose a potential resolution for the tension between policy and practice: two separate legal frameworks to authorise detention, one with a suitable test of capacity, used to enact soft paternalism, and the other to provide legal justification for detention for psychiatric treatment of the small number of people who retain decision-making capacity but nonetheless choose to place others at risk by refusing treatment. This separation of detention powers into two systems, according to the principle that justifies the use of detention would be intellectually coherent, consistent with human rights instruments and, being consistent with the apparent moral sentiments of practitioners, less prone to idiosyncratic interpretations in practice.

United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of their Liberty to Bring Proceedings Before a Court

On April 29, 2015, the United Nations Working Group on Arbitrary Detention (WGAD) adopted the United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (BPGs). This comprehensive and practical document is based on an extensive range of international law sources, standards, and good practice. It provides states with specific and specialized guidance on how to fulfill their international obligations to protect against the arbitrary deprivation of liberty.

구금의 자의성에 관한 연구 - 유엔 자의적 구금 실무그룹의 줄리안 아싼지 사례를 중심으로 -

구금의 자의성에 관한 연구 - 유엔 자의적 구금 실무그룹의 줄리안 아싼지 사례를 중심으로 -

Is justice for everyone? Arbitrary detention and torture of Islamists in Lebanon

Is justice for everyone? Arbitrary detention and torture of Islamists in Lebanon

Julian’s Golden Cage: Julian Assange, the UN Working Group on Arbitrary Detention and the Quest for Scholarly Diligence – A Case Study

On 4 December 2015, the UN Working Group on Arbitrary Detention adopted its Opinion No. 54/2015 concerning a communication made on behalf of Julian Assange. The Assange case poses challenging questions regarding human rights in the context of criminal prosecution of individuals and their detention. In this regard, Opinion No. 54/2015 extensively discusses the legal arguments of both Assange’s lawyers and the states involved, however the legal and factual reasoning of the Working Group itself is rather cursory. In large parts, the Working Group followed the arguments made by Assange’s lawyers and found that he was subject to arbitrary detention. The Working Group’s findings have been met with both praise and criticism by scholars. Most notably the question whether Assange’s stay in the Ecuadorian Embassy can be deemed as (arbitrary) detention has attracted debate. This article sets out to provide a critical examination of the legal reasoning contained in the Working Group’s Opinion by comparing it with the jurisprudence of the Human Rights Committee and, where appropriate, the European Court of Human Rights (ECtHR). The article will conclude with observations on possible ramifications of the Working Group’s approach, not only with regard to the unsurprising lack of voluntary compliance in the present case, but also its potential to bear detrimental effects for international human rights mechanisms in general.

The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence

For nearly twenty-five years, the United Nations Working Group on Arbitrary Detention has provided a well-respected jurisprudence on fundamental human rights, such as: freedom of expression and religion; limits on administrative detention; restrictions on discrimination in detention; and violations of the right to fair trial. The Working Group has amassed a unique collection of legal principles applicable to individuals detained by the United States, including asylum seekers, immigrants, and refugees. The decisions of the Working Group have also applied to non-state actors.

Does Amnesty Programme in Niger Delta have Economic Benefit to Nigeria?

The Niger Delta is said to be the world’s largest wetland and the fourth largest ethnic group in Nigeria. The oil and gas in that region represents 97% of Nigeria’s foreign exchange earnings and this accounts for a major chunk of the wealth of the country. The region has for some years been the site of major confrontations between the people and the Nigerian government’s security forces, resulting in extrajudicial executions, arbitrary detentions, and draconian restrictions on the rights to freedom of expression, association, and assembly. To proffer solution, Federal government came up with Post-amnesty Programme. Based on this, the study sought to: (i) determine the economic benefits of Post-amnesty Progromme to Nigeria. (ii) Determine the level of effectiveness of the implementation of the Post Amnesty Progrmme since its inception in 2009. The research design was descriptive survey method. The population of the study was 4,798,519 million youths [15-39years][last Census2006] in Delta State, Bayelsa State and Rivers State. The study made use of qualitative and quantitative data analyses. The sample size was 400 using Taro Yamane formula. Purposive sampling technique was used to select the respondents in each of the states. A pilot study was conducted using split-half method and tested with Spearman Brown. Validity of instruments was measured using content validity .The One-Sample Kolmogorv-Smirnov (Z) test is used in testing the hypothesis: Amnesty programme does not have economic benefits to the Nigeria. (Zcal = 4.930 > Zcritical = 1.96, p < 0.05). This result is significant as p-value of 0.00 < 0.05. Thus, the null hypothesis is rejected and the alternative hypothesis accepted accordingly. Hence, Amnesty programme does have economic benefits to Nigeria. It concluded that is only in peaceful regions that meaningful collaboration and developments can take place, as well as investment and development. Where its recommendation is for the Federal government to engage in equitable distribution of resources in the country and elimination of bureaucracy such as: corruption, dehumanization, marginalization, and underdevelopment and deprivation.

Horvath v. Australia

354Human rights — Prohibition of torture and cruel, inhuman or degrading treatment or punishment — Freedom from arbitrary arrest and detention — Persons deprived of liberty to be treated with humanity and respect for inherent dignity of the person — Freedom from arbitrary interference with privacy, family and home — No implied right of the State to engage in any activity aimed at destruction of rights and freedoms — Admissibility of author’s communication to Human Rights Committee — Consideration of merits — Right to effective remedy — International Covenant on Civil and Political Rights, 1966, Articles 2, 7, 9, 10 and 17 — Remedy for violation — United Nations Human Rights Committee

PROTOCOL: Police Training Interventions to improve the democratic policing of protests

PROTOCOL: Police Training Interventions to improve the democratic policing of protests

Spaces of Legal Ambiguity: Refugee Camps and Humanitarian Power

While the refugee camp has not been defined in international law, this article suggests that discussing the legality and legitimacy of these spaces is key to any understanding of what contemporary refugee camps are. It examines different legal registers that might be used to evaluate the legality or legitimacy of refugee camps and approaches refugees and camps from a critical legal perspective. The article argues that in the same way that the refugee camp label (often) falsely signalizes a human rights- and protection-oriented sanctuary from harm, the presence of humanitarian organizations may wrongfully legitimize the arbitrary detention of refugees.

Focus: Trade Union Rights in Colombia

FOCUS ❐ LATIN AMERICA According to the largest Colombian trade union centre - Central Unitaria de Trabajadores de Colombia / Central Union of Workers (CUT) – in 2013 there were 451 instances of anti-union violence – one act every 19 hours, every day of the year. The grim toll of Colombia’s war on trade unions amounts to at least 13,713 violations of the right to life and liberty since 1977 – 3062 assassinations, 233 kidnappings, 342 violent attacks, 6572 violent threats, 1890 forced displacements and 725 arbitrary detentions. Between 2000 and 2010, Colombia accounted for 63 percent of trade unionists murdered globally. The Colombian government has made significant effort to convince the international community they are taking steps to tackle anti-trade union violence, not least as part of their push to agree free trade agreements with the United States and the European Union. The Colombian government will often point to the protection measures provided by the state to many trade unionists - ranging from a bodyguard and a bullet-proof car, to a mobile phone or a bullet proof jacket - but the high impunity rate continues to give a green light for the assassinations to continue. Colombian organisations regularly point out that there often appears to be more time dedicated to investigating false accusations of trade unionist links to guerrilla organisations than to bringing those responsible for carrying out the murders to justice. The Labour Action Plan (LAP), was agreed in 2011 to demonstrate the commitment of the Colombian government to protect workers’ rights prior to the signing of the free trade agreement with the US – it has failed however to stop the killings. In the four years following the implementation of the LAP, more than 100 trade unionists were killed. And whilst the authorities assert that they are acting to apprehend the perpetrators, the evidence does not support this. A 2014 report by the CUT showed that 86.8 percent of assassinations remain in impunity, while 99.9 percent of threats are never investigated. The Colombian Trade Union Movement Trade union membership levels have taken a devastating hit as a direct result of the anti-union violence, anti-trade union laws and policies and massive labour market changes. In spite of these difficulties, the union movement continues to play an active role in Colombia: in 2013 and 2014, together with social organisations from across the country, the trade unions were involved in weeks of strikes and disruptions across Colombia in response to the devastating impact of international free trade agreements. Trade Union Rights in Colombia According to the largest Colombian trade union centre, in 2013 there were 451 instances of antiunion violence – one act every 19 hours INTERNATIONAL union rights Page 16 Volume 23 Issue 1 2016 T he trade union movement and the vast majority of social organisations in Colombia are currently giving their support to peace processes on-going between the government and the two left-wing guerrilla organisations, the Fuerzas Armadas Revolucionarias de Colombia / Revolutionary Armed Forces of Colombia (FARC) and the Ejército de Liberación Nacional / National Liberation Army (ELN). There is hope that, if peace deals are reached that include measures for addressing the deep-rooted social and political inequalities, then an important step will have been taken towards improving the situation for workers, trade unionists and for all of those fighting for social transformation in Colombia. There are however considerable fears that the on-going lack of guarantees for political activists, including trade unionists, will provide a considerable obstacle to peace becoming a reality. Colombia has for several decades been the most dangerous place in the world to be a trade unionist. Every year numerous union leaders, union activists and union members are assassinated . Over 3000 trade unionists have been murdered since the mid-1970s, and nobody has been brought to justice in the vast majority of the cases. Over recent years, in spite of opening up of the peace talks and a more accepting discourse from Colombian government officials, the murders have not ceased. A recent Justice for Colombia report documented 534 political activists killed between 2011 and 2015 – this included 134 trade unionists. In addition to the violence, Colombia has some of the...

The Detention of Asylum Seekers and Refugees, the Case of Albania

The detention is considered to be an intrusion in the people rights, it is legitimate if it is conforms to the procedure defined by law. Detention as freedom privation should be realized conform to clear and transparent legal procedures. It should not be extended beyond the necessary period, and should not be used to obstacle the asylum seekers in advancing their requests. Although they may be used in the context of public security, such restrictions should be proportional to their serving interest. The detention decision despite being conform to the national law, if it was taken in bad faith should be a consequence of arbitrary detention. The country should consider detention as an alternative measure, when it does exist evidence that other smaller restrictions will be insufficient in the particular circumstances of this case.

Nature, Poetry, and Public Pedagogy: The Poetic Geographies of the Khmer Rouge

Between 1975 and 1979, more than 2 million men, women, and children died in what has become known as the Cambodian genocide. In just under four years, approximately one quarter of the country's prewar population succumbed to arbitrary murder, torture, detention, starvation, and disease. Amidst these acts of destruction, however, the Communist Party of Kampuchea (CPK; the Khmer Rouge) advanced various pedagogical practices, including the promotion of poetry. Superficially, poems produced by the Khmer Rouge are literary forms of propaganda. Such a conclusion is incomplete. Through a reading of Khmer Rouge–era poetry, this article contributes to two themes in geography: fictive and public pedagogy. We argue that the Khmer Rouge used poetry as a form of public pedagogy. More specifically, Khmer Rouge–era poetry presented nature as the fulcrum on which society was to be transformed. The cultivation of a proper political consciousness required the nurturing of a community identity of what Democratic Kampuchea was to become. This argument is developed in five sections. First, we provide a brief overview of literary geographies. We then consider the transformative power of public education. Third, we provide an overview of educational policies under the Khmer Rouge. This is followed by a discussion of nature as conceived by the CPK. Our main empirical analysis of Khmer Rouge poetry is presented in the fifth section. Finally, we conclude with a consideration of the politics of creative interventions as a form of public pedagogy.

Judges as Readers, Authors and Dialecticians: Legal Interpretation in the ECtHR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.

Fuming and fogging memories: civil society and state in communication of heritage in Singapore in the cases of the Singapore Memories Project and the ‘Marxist Conspiracy’ of 1987

This paper seeks to discuss the ecology of memories in contemporary Singapore as reflective of emerging tensions between the state and civil society in remembering the development of the nation-state for close to about five decades of independence. At the core of the tension are competing efforts to curate public memories through traditional and new media. As the state establishes a nostalgic community that sentimentalizes the dominant narrative of development in the Singapore Memory Project, alternative campaigns emerge to remember a more troubled past of arbitrary detention of political activists. Using the metaphors of ‘fumigating’ and ‘fuming’ to frame the staging of a more reified reminiscence of the past against the resurfacing a more traumatized history, the authors seek to position the recent contestations as the beginnings of a new chapter of communicating and personalizing history in the republic.

Strengthening the Protection of Stateless Persons from Arbitrary Detention in Immigration Control Proceedings

There is a growing movement (globally and in Europe) addressing statelessness, and the July 2014 decision of Kim v Russia illustrates the role of the Strasbourg Court as a guardian of one of the most important fundamental rights of the ‘legally invisible’ in Europe. The court held that Russia’s two-year detention of a stateless person with a view to expulsion violated his right to liberty and security under Article 5(1) of the European Convention of Human Rights. This comment argues that Kim v Russia represents an important step forward by the Strasbourg Court in safeguarding the stateless person’s right to liberty and security of person under echr doctrine, by highlighting and addressing the special vulnerability of stateless persons to prolonged, indefinite and cyclical detention in immigration control proceedings, although the court should have gone further and indicated general measures explicitly recommending for Russia to introduce statelessness determination procedures.

Human Rights of Roma and Travellers in Europe

Article reviews the thematic report on Human Rights of Roma and Travellers in Europe (commissioned by the Commissioner for Human Rights, Thomas Hammarberg), which is supposed to be the first overview of the human rights situation of Roma and Travellers in all member states of the Council of Europe. It focuses mainly on the following areas: racially motivated violence against Roma and Travellers, the treatment of Roma and Travellers by law enforcement and judicial authorities (including ethnic profiling in the context of the movement of Roma across international borders), disproportionate subjection to arbitrary detention measures, Roma and trafficking in human beings, statelessness and difficulties Roma face in applying for asylum in other EU states (including a problem of the ‘tolerated’ (gedulget) status).

Southeast Asian Hesitation: ASEAN Countries and the International Criminal Court

In one of his final press releases, the former United Nations Special Rapporteur on the human rights situation in Myanmar, Tomás Ojea Quintana, urged that greater attention be given to the further deterioration of the human rights situation in Rakhine State. He submitted that the discrimination and persecution against the Rohingya community in Rakhine could amount to crimes against humanity. In his final report, prior to the end of his six-year mandate, Quintana states that “extrajudicial killing, rape, and other forms of sexual violence, arbitrary detention, torture, and ill-treatment in detention, denial of due process and fair trial rights, and the forcible transfer and severe deprivation of liberty of populations has taken place on a large scale and has been directed against” the Rohingya Muslim population in Rakhine State. However, there is no sign that any of the alleged crimes are being adequately investigated by the competent domestic authorities. Furthermore, the ICC does not have jurisdiction as Myanmar is not a State Party to the Rome Statute.