Of all the human
rights issues dealt with by the United Nations, arbitrary detention receives
the least attention and yet leads to a plethora of other violations. The Commission on Human Rights (the Human Rights Council or HRC since 2006)
created the Working Group on Arbitrary Detention (WGAD) in 1991 to deal with
the growing tide of reports of arbitrary detention occurring worldwide. The phenomenon of arbitrary detention is nothing new; people have been detained
by governments without legal basis or recourse since time immemorial. Yet the
creation of international human rights laws in the 20th century made
arbitrary deprivation of freedom internationally illegal for the first time.
Since the entry into force of the first binding agreements on detention, the
illegality of arbitrary detention has crystallized into customary law, meaning
that all states must respect it regardless of membership to any binding
agreements. In practice, arbitrary detention
not only continues to be a problem, it is becoming more widespread.
UN headquarters in Geneva, Switzerland
The
WGAD is mandated to “seek and receive information” on detention from various
channels and follow-up on cases of detention found to be arbitrary with
communications directly to governments. At the time of its inception, many
observers were pleased and hopeful to see a UN Special Procedures body given
such a dynamic mandate; until the WGAD no other Special Procedures had been
given such an active power to not only receive complaints but also to
investigate them. Yet since
its establishment 20 years ago, the WGAD continues to have its mandate renewed
and less than 50 percent of governments to whom it sends communications even
bother to acknowledge their receipt.
Due to problems of enforcement, types of detention, and organization the WGAD
falls short of the high hopes that accompanied its creation. Nevertheless, it
remains the only HRC body through which victims of arbitrary detention can at
least seek recognition of their situation, if not true justice.
Arbitrary
detention has been illegal in international law since the Universal Declaration
of Human Rights in 1948 specifically forbade it in article 9. The International Covenant on Civil and Political Rights, a legally binding
document upon the parties (167 countries), also bans arbitrary arrest and
detention in article 9(1). In the time since the creation of the first international agreements on the
illegality of arbitrary detention, it has become accepted as customary
international law. The WGAD was
created to address the fact that despite the international laws and norms
forbidding it, arbitrary detention persists worldwide regardless of the country
concerned. Even developed countries such as the United States persist in their
practice of arbitrary detention and illustrate the transcendent nature of the issue at hand: it occurs in every
country, against every group, regardless of the state’s level of development,
wealth, or education.
The
WGAD falls under the umbrella of the United Nations HRC’s Special Procedures.
It is one of 38 mechanisms that analyze and report on human rights situations
either occurring in a specific country or falling under a thematic category. Special Procedures operate in different ways and have very different mandates:
they can be chaired by either a single Special Rapporteur or a Working Group of
independent experts and themes range from indigenous rights to the effects of
foreign debt. Yet they are all international whistle-blowers on human rights
violations and are some of the most accessible means through with individuals
and non-governmental organizations (NGOs) can make claims of violations of
internationally protected rights.
In the current global system, this is
extremely important as entities like NGOs and individuals find themselves
placed at the mercy of state actors, the most powerful legal personalities. The
WGAD is unique in that it is the “only non-treaty-based mechanism whose mandate
expressly provides for consideration of individual complaints.” Since 1993, it can also take up investigations of its own accord without a
specific complaint. Ordinarily,
the only recourse for individuals whose international rights have been violated
is much lengthier and must be carried out following many steps through the
eight UN treaty bodies. They must have exhausted all domestic remedies, their
states must be party to the treaty in question, and the state must accept the treaty body’s jurisdiction. Considering that states stand to lose much and gain little should a treaty body
find them in violation of human rights, few states agree to jurisdiction and
many are not party to any treaties with enforcement bodies at all. Seven of the
human rights treaty bodies can consider individual complaints when making their
reports on and recommendations to states, but states must usually be a party to
an optional protocol of the treaty, as in the case of the Committee Against
Torture, through which individual complaints may be considered only if the
state has ratified the optional protocol.
The WGAD operates differently than a treaty
body because all states in the Human Rights Council are automatically subject
to its opinions, urgent appeals, and country visits. It also makes an annual
report to the Human Rights Council that is influential at the time of elections
of member states or decisions to suspend members. As a Working Group, the WGAD
functions through five elected members instead of a single Special Rapporteur.
This organization was necessary for the creation of the WGAD to gain the
support of non-Western states that originally saw the Group as a Western
imposition. The five members are also aided by a Secretariat that organizes and writes up
communications, opinions, urgent appeals, and reports for the group. The
creation of the Working Group came after a report made by the Sub-Commission on
Prevention of Discrimination and Protection of Minorities that suggested
arbitrary detention was not only a global problem worthy of a Special Procedure
but also a problem that had shown a dangerous trend towards expansion
throughout the 21st century. Hoping to avoid political scuffles over the terms describing detention outside
of internationally accepted legal norms, the mandate writers settled on
“arbitrary detention” which they clarified as encompassing all words relating
to imprisonment including detention that is technically legal within domestic
confines but that falls outside of international norms. This points to the disturbing trend among states to detain individuals without
legal process, incommunicado, secretly, or under administrative detention, all
issues listed by the Group in their 2010 report.
It also indicates the growing problem of states holding refugees, migrants, and
asylum-seekers in detention centers legal under domestic law for non-nationals
without access to courts or timely release.
The WGAD falls far short of expectations in almost all of these areas, yet it is a vital tool moving forward for countries to be held accountable to their international obligations. Next I will discuss the challenges faced by the WGAD, a working model for increased efficacy, and why, in the end, it is essential that the UN Special Procedures bodies continue to expand and grow to protect human rights for all people.
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