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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