Monday, October 15, 2012

The Working Group on Arbitrary Detention, part 1

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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