Working Group on Arbitrary Detention

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The Working Group on Arbitrary Detention is a body of independent human rights experts that investigate cases of arbitrary arrest and detention.  Arbitrary arrest and detention is the imprisonment or detainment of an individual, by a State, without respect for due process. These actions may be in violation of international human rights law.

The Working Group was established by resolution in 1991 by the former Commission on Human Rights, it is one of the thematic special procedures overseen by the United Nations Human Rights Council, and is therefore a subsidiary body of the UN.

Mandate and composition[edit]

The Working Group is mandated to receive and verify information from a variety of sources, in order to investigate cases of detention imposed arbitrarily, or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights.[1] Article 9 states: ‘No one shall be subjected to arbitrary arrest, detention, or exile’; in considering claims of arbitrary detention, the Working Group is not only guided by State national law, but other international legal instruments may also be relevant if accepted by the States concerned. For example, the International Covenant on Civil and Political Rights, Article 9(1) states; “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be Deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

The Working Group's role is to investigate individual cases of arbitrary detention, as well as situations where the conditions in a country prompt concern over widespread occurrences of arbitrary detention, it has an intentionally broad mandate, to allow flexibility, and allow anyone to seek its assistance. The Working Group may send urgent appeals to governments to ascertain the whereabouts and condition of those allegedly detained, issues opinions on the compliance with international law and may also conduct fact-finding visits to countries. The Working Group also issue deliberations on issues, to assist States in avoiding behaviour that may enable arbitrary detention. Ensuring a communicative dialogue with Governments and intergovernmental and non-governmental organisations allows the Working Group to achieve success, the Working Group must work in coordination with other Human Rights Council mechanisms and is mandated to carry out its task with discretion, objectivity and independence.[2]

The Working Group mandate reflects the Commission’s concerns regarding worldwide instances of detention without legal basis, the Commission on Human Rights entrusted the Working Group with the following mandate:

  1. To investigate cases of detention imposed arbitrarily in individual cases
  2. To complete field missions in order to receive information from Government and intergovernmental and non-governmental organizations, and receive information from the individuals concerned, their families or their representatives;
  3. To present annual reports to the Human Rights Council

The mandate lasts for a period of three years, and was most recently extended for a further three year period in Human Rights Council resolution 33/30 of 30 September 2016. [3]

Membership[edit]

The Working Group is composed of five independent experts, they are appointed in equitable geographical distribution from the following regions: Africa, Asia, Eastern Europe, Western Europe and Other Countries, and South America and Caribbean.[4] Three sessions are held per year, each lasting between five and eight days.

The current members of the Working Group are[5]:

  • José Antonio Guevara Bermúdez (Chair-Rapporteur)  Mexico 2014-2020
  • Leigh Toomey (Vice-Chair on follow up)  Australia 2015-2021
  • Dr Elina Steinerte (Vice-Chair on Communications) 🇱🇻 Latvia 2016 - 2022
  • Sètondji Roland Adjovi  Benin 2014-2020
  • Seong-Phil Hong  South Korea 2014-2020
    • Secretariat: Christophe Peschoux; Margarita Nechaeva; Helle Dahl Iversen; Sharof Azizov; Yiyao Zhang; Nathalie Montchovet
  • Former members include:
  • Mads Andenas  Norway
  • Shaheen Sardar Ali  Pakistan
  • Tamás Bán  Hungary
  • Manuela Carmena Castrillo  Spain
  • Roberto Garretón Merino  Chile
  • Seyyed Mohammad Hashemi  Iran
  • Laity Kama  Senegal
  • Louis Joinet  France
  • Kapil Sibal  India
  • El Hadji Malick Sow  Senegal
  • Petr Uhl  Czech Republic
  • Soledad Villagra de Biedermann  Paraguay
  • Leïla Zerroügui  Algeria

Process[edit]

The Working Group on Arbitrary Detention is tasked with acting on information of alleged cases of arbitrary detention. To fulfil this mandate, the Working Group may decide individual complaints of arbitrary detention, formulate deliberations to provide guidance on the interpretation of international standards related to detention circumstances and provide reports for the Human Rights Council, it may undertake country visits to achieve this.

The Working Group does not require the exhaustion of local remedies, however its purpose is not to replace national courts[6] The This broadens its jurisdiction, as it allows the Group to bypass governments that may be stalling procedure.

Detention in itself, does not necessarily violate human rights. Therefore, the Working Group must distinguish between lawful exercise of police power, and detention so lacking in lawful basis that it must be considered arbitrary.[7]

Individual complaints and urgent appeals[edit]

Individual complaints[edit]

Working Group on Arbitrary Detention is unique in that its mandate expressly provides for the consideration of individual complaints. Individuals anywhere in the world are therefore able to petition the Working Group for consideration, the Group acts on information submitted to it by individuals directly, their families, or through representatives of Non-governmental organisations.

The Working Group then sends communications to the Governments concerned, to clarify or bring attention to the case,[8] the Government is invited to respond to the allegations within 60 days, with its view on the issue. The Working Group then sends the reply to the source of the allegations, requesting more information, this process allows the Group to remain neutral in the information-gathering process. [9]

The Working Group have identified detention or imprisonment as arbitrary if it falls into one of the following categories;

  1. Imposed without any legal basis
  2. Imposed because of the exercise of human rights
  3. Imposed in violation of the principle of fair trial
  4. Prolonged administrative custody imposed on asylum seekers, immigrants or refugees
  5. Based on illegal discriminatory grounds

Examples of this can include continued detention after the completion of a sentence, denial of the exercise of fundamental rights such as freedom of expression, violations of the right to a fair trial, asylum and immigration claims, or detention based on ethnicity; religion; sexual orientation, etc. [10]

Upon receiving information under this adversary procedure, the Working Group then adopts one of the following approaches[11];

  • If the individual concerned has been released, the Group may still decide to formulate an opinion on whether or not the deprivation of liberty was arbitrary
  • The Group may find that the deprivation of liberty is not arbitrary, and will state an opinion as such
  • The Group may seek further information from the individual or the Government
  • If further information is unable to be sought, the Group may file the case subject to further confirmation
  • The Group may decide that the arbitrary deprivation of liberty has been established, state an opinion to that effect, and make recommendations to the Government. These are then communicated to the Government, the opinion requests that the state takes the necessary steps to remedy the situation in order to bring it into conformity. The fulfilment of this request is often achieved by the release of the individual.

Upon evaluating contradicting evidence, such as between an individual claiming arbitrary deprivation of liberty and a government, the Working Group use a standard of 'convincing evidence', as opposed to evidence beyond a reasonable doubt,[12] the informal nature of the Working Group can strengthen the position of the individual represented, by easing the objective burden of proof on them.

Urgent appeals[edit]

If the Working Group receives information that raises concern about the immediate wellbeing of an individual, then it may, at its discretion, pursue an urgent action, the source must provide sufficiently reliable information that the continuation of deprivation poses significant threat to the psychological or physical wellbeing to the individual. [13] The alleged situation may be time-sensitive in relation to loss of life or deportation. Rapid communication is sought with diplomats, such as the Foreign Minister (or equivalent), the Working Group request immediate action to ensure the detained person's right to life, as well as physical and mental integrity are respected. [14] This a purely humanitarian undertaking, and do not prejudice the Working Groups' final opinion on whether the deprivation of liberty is indeed arbitrary.[15]

Advisory procedures[edit]

Country visits[edit]

In order to fulfil its mandate, the Working Group may conduct country visits, these provide an opportunity for the Group to understand the specific situation prevailing in countries. The Group undertake one to three country visits per year, upon invitation from the Government concerned.[16]

On a country visit, members of the Working Group engage in a variety of tasks, these can include meeting with representative of the executive, legislators, and other state officials. The Group also have the right to to visit places of detention and have private discussions with detainees.[17] Country visits enable the Working Group to gain a greater understanding of the social, political and historical environment in each country, enabling them to create context-appropriate recommendations.

Deliberations[edit]

More generally, the Working Group seeks to encourage broader international understanding of arbitrary detention, and promote universal standards. [18]. This is achieved through a more general advisory role, with the formulation of deliberations,[19] the Group formulate deliberations on general issues to assist States in safeguarding against the practice of arbitrary deprivation of liberty.

Annual reports[edit]

The Working Group must submit Annual Reports to the Human Rights Council, summarising the previous years activities, the report will express observations made while investigating cases and on field missions in differing countries. The report details the Working Groups reasoning behind legal insufficiencies, policies and judicial policies that are the cause of arbitrary deprivation of liberty, and recommend best practice to safeguard against arbitrary deprivation of liberty.[20]

Criticisms[edit]

The Group functions as a quasi-judicial body,[21] it has no direct enforcement power of its own. Instead, it relies on communication among states, policy-makers and advocates to encourage governments to implement its recommendations.[22]

The opinions of the Working Group however are legally binding to the extent that they are based on binding international human rights laws, such as the International Covenant on Civil and Political Rights. This is applicable to states that has ratified the covenant.

The opinions of the Working Group, are however considered authoritative by some prominent international judicial institutions including the European Court of Human Rights,[23] the features of the Working Group arguably play a role in its success, as it allows it to provide a politically viable alternative to treaty-based human rights enforcement mechanisms.[24] The flexible mandate enables it to avoid direct political confrontation with governments, ultimately achieving more politically acceptable and lasting solutions to individual cases of arbitrary detention.[25] While the opinions of the Working Group are not binding on states, they can facilitate information sharing among non-governmental organisations and governments, this can in turn lead to an increase in government accountability.

Development of Draft Principles[edit]

In 2012, the Human Rights Council requested the Working Group on Arbitrary Detention to develop draft basic principles, these were to provide guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before court, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful.[26] The intention behind these were to assist states in fulfilling their obligation to avoid arbitrary deprivation of liberty.[27] States, treaty bodies, human rights institutions and non-governmental organisations were invited to submit details on the treatment of the right to bring such proceedings before a court, in their respective legal frameworks,[28] the text was adopted in April 2015.[29]

Notable case[edit]

Julian Assange[edit]

In 2016, WikiLeaks founder Julian Assange was found to be arbitrarily detained by Swedish and the United Kingdom authorities, since his arrest in December 2010. Based on allegations of sexual misconduct, Assange's detainment in a prison, house arrest and confinement at an Embassy, where he was subjected to extensive surveillance, was considered an arbitrary deprivation of liberty,[30] the detention was deemed arbitrary due to the isolation imposed in the first stage of detention, and the lack of diligence in investigations against Assange, resulting in a lengthy detention.

The Working Group recommended that the Swedish and British authorities end the deprivation of liberty, respect his freedom of movement, and grant him the right to compensation.[31]

References[edit]

  1. ^ The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights p.311
  2. ^ United Nations Human Rights Office of the High Commissioner
  3. ^ United Nations General Assembly Resolution 33/30
  4. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017).
  5. ^ [1] United Nations Office of the High Commissioner
  6. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017).
  7. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017)
  8. ^ United Nations Human Rights Office of the High Commissioner
  9. ^ Genser, J. M.; Winterkorn-Meikle, M. K. (2008). The intersection of politics and international law: The united nations working group on arbitrary detention in theory and in practice. Columbia Human Rights Law Review 39(3), 687-756
  10. ^ The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights p.317
  11. ^ [2], The UN.
  12. ^ The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights p.315
  13. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017)
  14. ^ Office of High Commissioner for Human Rights, Fact Sheet No. 26, The Working Group on Arbitrary Detention, available at http://www.ohchr.org/Documents/Publications/FactSheet26en.pdf
  15. ^ United Nations Human Rights Office of the High Commissioner
  16. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017).
  17. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." They also enable the Working Group to evaluate internal legislation for its compatibility with international standards. Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017).
  18. ^ Genser, J. M.; Winterkorn-Meikle, M. K. (2008). The intersection of politics and international law: The united nations working group on arbitrary detention in theory and in practice. Columbia Human Rights Law Review 39(3), 687-756
  19. ^ David S. Weissbrodt and Brittany Mitchell. "The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence." Human Rights Quarterly 38, no. 3 (2016): 655-705. https://muse.jhu.edu/ (accessed September 4, 2017)
  20. ^ United Nations Human Rights Office of the High Commissioner
  21. ^ The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights p.315
  22. ^ Genser, J. M.; Winterkorn-Meikle, M. K. (2008). The intersection of politics and international law: The united nations working group on arbitrary detention in theory and in practice. Columbia Human Rights Law Review 39(3), 687-756
  23. ^ United Nations Human Rights Office of the High Commissioner
  24. ^ Genser, J. M.; Winterkorn-Meikle, M. K. (2008). The intersection of politics and international law: The united nations working group on arbitrary detention in theory and in practice. Columbia Human Rights Law Review 39(3), 687-756
  25. ^ Genser, J. M.; Winterkorn-Meikle, M. K. (2008). The intersection of politics and international law: The united nations working group on arbitrary detention in theory and in practice. Columbia Human Rights Law Review 39(3), 687-756
  26. ^ United Nations Human Rights Office of the High Commissioner
  27. ^ Report of the Working Group on Arbitrary Detention
  28. ^ United Nations Human Rights Office of the High Commissioner
  29. ^ United Nations Human Rights Office of the High Commissioner
  30. ^ United Nations Human Rights Office of the High Commissioner
  31. ^ United Nations Human Rights Office of the High Commissioner

External link[edit]