Tuesday, November 13, 2012

The Working Group on Arbitrary Detention Pt. 2: Challenges and Opportunities

Challenges to the Efficacy of the WGAD

The first and perhaps greatest challenge to the power of the Working Group to put an end to arbitrary detention is the issue of enforcement. The WGAD has no means through which to force states to comply with its requests, and its main power lies in drawing attention to the abuses of governments and relying on public opinion to turn against them. Yet for non-democratic governments not directly selected by the people, the influence of public opinion has a limited effect. Thus, although between 2006 and 2010 the WGAD issued a total of 195 opinions on 602 individuals and 695 urgent appeals on 5,903 individuals, governments that are members of the Human Rights Council have only chosen to acknowledge the receipt of such communications less than 50 percent of the time. This indicates that the number of governments who not only acknowledge receipt but also conduct investigations and give a full response is even smaller.

Aung San Suu Kyi, one of the most famous people whose case was taken up by the WGAD. She was released in 2010 following several appeals by the WGAD.

Another obstacle to the ability of the Working Group to effectively investigate instances of arbitrary detention is the multitude of methods of detention that either obstruct inquiries or are considered legal under domestic law. The widespread use of secret or incommunicado detention is almost impossible to gain concrete evidence or figures on because of its very nature: individuals held without contact with the outside world by governments that do not acknowledge their detention have no way of getting a complaint to the WGAD. For this very reason, secret detention was the focal issue of the 2010 Annual Report of the WGAD. In their report, the WGAD notes the use of secret detention is especially invoked in the case of conflict, states of emergency, and in the war on terror. Nonetheless, the Group concludes that secret detention is in any case a violation of individuals’ human rights and international law. The problem of attaining information and the ability to effectively act on evidence remains an issue for the WGAD to overcome.

The Working Group also reported on the arbitrary detention of immigrants and asylum-seekers, which is frequently legal under domestic and regional laws. In its 2009 Annual Report, the Group noted the unsettling development of laws allowing the arbitrary detention of those belonging to the aforementioned groups for up to 18 months. Such laws “would also permit the detention of unaccompanied children, victims of human trafficking, and other vulnerable groups.[1]” The danger in domestic law that overrides international human rights law is that unlike domestic governments, groups that oversee cases of human rights violations like the WGAD have no enforcement power (such as a police branch) to make governments comply. An accumulation of enough complaints of abuses might affect the governments’ standing in public opinion or in certain human rights mechanisms, but unlike citizens within the governments’ territory, asylum-seekers have no state party to which to appeal to seek aid. As an already particularly vulnerable group in terms of human rights violations, the detention of asylum-seekers only adds to the precarious situation they face outside of the normal state-citizen relationship.

The WGAD’s decisions, even when they led to release, are often met by harsh reprisals of judges and lawyers involved in the victim’s case. In 2009, Judge Maria Afiuni of Venezuela was arrested following her release of a prisoner judged by the WGAD to be arbitrarily detained; she was subsequently beaten and is in deteriorating health.  Also in 2009, a victim himself was beaten for writing to the UN Secretary General to request international observers be sent to Iran. Cases like these reveal why many victims, families, lawyers, and judges remain afraid to act against arbitrary deprivation of liberty in the face of governments that will subject them to worse if they do. While the WGAD already receives thousands of communications each year, considering the risk of government reprisal, many more prisoners likely exist whose cases the Group will never hear and whose arbitrary detentions will not be recognized or brought to justice.

A final challenge to the efficacy of the Working Group is the simple logistics of their task: while thousands are arbitrarily detained worldwide every year, the entire staff of the WGAD is less than ten people. To simply read through and judge each case received would take a much larger staff, not to mention that the mandate requires opinions only be rendered by the five sitting independent experts of the WGAD. The opinions generated by the Group, though lacking enforcement power, often give legal weight to lawyers’ calls for their clients to be released. When properly disseminated, the opinions can also draw mounting public criticism against governments that practice arbitrary detention, which can be a powerful instrument to effect change, as shown by the recent upheavals in the Arab world.

Unfortunately, because of its lack of resources, even when the Group renders opinions, translations into the relevant languages often come too late to make a difference. In 2009, several individuals were arbitrarily arrested and detained in Khartoum, Sudan and subsequently sentenced to death. The UN Mission to Sudan sent several communications to the WGAD and other Special Procedures and the Working Group issued an opinion that the detentions were arbitrary; however, because of the time lag between the date on which the opinion was released in Arabic and the date on which the victims’ lawyers needed the opinion to make an appeal, all of the detainees were executed. These tragic cases of arbitrary detention and the needless executions of innocent men and women exemplify the grave consequences that stem from the Working Group’s lack of resources.

Case Analysis of Alkarama Foundation and the WGAD: NGOs and the Special Procedures

The relationship of the WGAD with the NGOs that supply it with information is very useful to illustrate the overwhelming task with which the Working Group is mandated and how NGOs can make it more effective. Alkarama Roundation is an Arab human rights foundation that works in four focus areas of human rights violations: arbitrary detention, torture, enforced disappearance and extrajudicial killings. Alkarama’s legal team submits communications to the UN Human Rights Council as well as the Special Procedures, especially the Working Group on Arbitrary Detention because the issue of arbitrary deprivation of liberty is so widespread in the Arab world and leads to violations in the other three focus areas.

In 2009, Alkarama submitted 19% of the cases on the Arab world that the WGAD received throughout the year. Out of 201 individual cases of arbitrary detention in the Arab world that Alkarama reported to the WGAD in that year, only 34 cases from the Arab world total were issued opinions by the WGAD. Of those 34, Alkarama submitted evidence on every single one. That one foundation of less than 20 people (of which only the legal team submits communications) is represented in such a large margin of the WGAD’s opinions demonstrates many of the challenges faced by the Group, especially that of resources.

Foundations like Alkarama are also able to investigate a much larger volume of cases than the Working Group because of their close contacts with investigators on the ground, families of victims, lawyers, and victims themselves. Such close personal contact leads to a much higher quality of evidence compiled that is outside the scope of the Working Group’s capabilities. Thus inquiries into secret detentions, detentions within states’ domestic laws, and cases of reprisals are much more effective due to the focus of Alkarama on one area of the world. While the Middle East is vast and arbitrary detention is widespread, the scale of cases is much smaller than that focused on by the Working Group. The relationship of Alkarama with the WGAD points to the huge importance of legal NGOs in aiding the WGAD to be able to render well-founded opinions on as many cases as possible. Without the help of NGOs, the WGAD would have to rely solely on the evidence supplied by family members and victims who are not trained in international law and unfamiliar with the information that needs to be gathered and substantiated in order for an opinion to be generated.

Though the Working Group on Arbitrary Detention-and all human rights mechanisms, for that matter-may not achieve results in a majority of cases, it is still the only one in place to protect those who have been deprived of their rights and face further, even more extreme atrocities if they do not seek justice. The WGAD is made much more efficient by the NGOs that provide it with cases and carry out investigations for the victims. The issue of the Working Group’s organization could be further improved if the WGAD were to start a larger internship program and offer unpaid positions to those studying international law. The efficacy of the Working Group could also be improved if the Secretariat was enlarged, being that it is the organizational arm of the WGAD and instrumental in ensuring that all cases received by the Group are at the very least reviewed. Another fundamental tool at the disposal of the WGAD is collaboration not only with NGOs but also with other Special Procedures: in 2010 several joint opinions and urgent appeals were rendered in concert with other Working Groups and Special Rapporteurs, allowing the groups to combine resources and legal powers. Without serious organizational reform, the WGAD must continue to work closely with both NGOs and other Special Procedures to maintain even the seemingly small amount of output that it currently generates.

Although in 2010 the WGAD only received information on the release of three individuals out of hundreds on whose cases it rendered an opinion, how can the freedom of a single individual be measured against the continued detention of those in prison? The release of Burmese activist Suu Kyi-whose detention the WGAD has repeatedly judged to be arbitrary-could yet give rise to a political movement that could topple a totalitarian regime. The WGAD may not be the perfect system, but it is the only one that the world has to turn to at this point. Until the states of the world back up statements of support for human rights with real enforcement power and ample resources, the Special Procedures of the UN are vital to ensure that at least some victims attain justice.

[1] El Hadji M. Sow, Chair-Rapporteur, Report of the Working Group on Arbitrary Detention 2009, p. 17.

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