Arbitrary Detention (International)
Arbitrary detention, often referred to as unlawful detention, occurs when an individual is arrested or held without proper legal justification, resulting in a denial of due process. This practice is frequently linked to authoritarian regimes, where it is used to suppress dissent and political opposition. However, even in democratic nations, governments may enact laws that permit arbitrary detention during exceptional circumstances, such as national crises. The United Nations and various human rights organizations, including the Working Group on Arbitrary Detention (WGAD), delineate five categories of arbitrary detention, ranging from complete lack of justification to violations of fair trial rights.
Historically, the concept of arbitrary detention has evolved significantly, particularly following the Enlightenment era, which emphasized human rights and individual freedoms. The Universal Declaration of Human Rights, established by the UN in 1948, explicitly prohibits arbitrary detention, yet violations persist globally, notably in countries like China, Egypt, and Syria. In recent years, the arbitrary detention of foreign nationals for political leverage has emerged as a troubling trend, with notable cases highlighting the tense geopolitical dynamics at play. Additionally, individuals such as journalists and those accused of drug-related crimes face heightened risks of arbitrary detention, raising significant concerns about accountability and justice in both authoritarian and some democratic contexts.
Arbitrary Detention (International)
International law and human rights organizations define arbitrary detention as occurring when a person is arrested or detained without legal justification, and in such a manner that the detained individual is denied due process or other means of recourse. Also known as unlawful detention, arbitrary detention is generally associated with repressive authoritarian regimes. In many democratic countries, governments and law enforcement agencies can also activate laws and statutes that permit arbitrary detention as a response to exceptional events, such as widespread domestic unrest or a foreign invasion.
When used as a tool of intimidation against dissent or political opposition, arbitrary detention is widely considered a major violation of fundamental human rights. Even so, it remains comparatively routine event on a global scale, mainly in countries that host repressive, authoritarian, and non-democratic governments.
Background
Actions that modern people would consider arbitrary detention were very common across much of the world for most of the history of civilization. Attitudes toward the practice first began to shift when the liberal and humanistic philosophies of the Age of Enlightenment (ca. 1685–ca. 1815) began leading to radical political reforms that eventually matured into modern democracies. Though reform of detention practices was slow and uneven, the practice of arbitrary detention came to be widely viewed as unjust and anti-democratic in many parts of the world by the turn of the twentieth century.
The era of the World Wars (1914–1945) and especially World War II (1939–1945) highlighted a pressing need to establish a rules-based global order. This desire informed the 1920 founding of the League of Nations and the 1945 establishment of its successor organization, the United Nations (UN). One of the UN’s first acts was to create the Universal Declaration of Human Rights, which was ratified by UN member states in 1948. The document was created to serve as the foundational principle of a global system of shared, basic standards and protections to which all people are entitled.
Article 9 of the Universal Declaration of Human Rights explicitly forbids arbitrary detention. The official English text of the article states: “No-one shall be subjected to arbitrary arrest, detention, or exile.” Numerous other articles contained in the Universal Declaration of Human Rights provide further protections designed to prohibit signatory countries from exposing their citizens to intimidation, arrest, or persecution on the basis of their race, economic class, sex, ethnicity, national origin, religion, political views, and other such characteristics.
Since 1945, practically every recognized country has joined the UN. Yet, dozens of UN member states continue to sanction violations of the essential rights laid out in the Universal Declaration of Human Rights and other key instruments of international law. Human rights watchdog groups and other activists note that in many cases, governments that commit such violations—including arbitrary detention—rarely face meaningful sanctions from the international community. Thus, arbitrary detention remains an everyday threat to the citizenry of dozens of countries around the world.
Overview
The UN’s Working Group on Arbitrary Detention (WGAD) recognizes five distinct types of arbitrary detention, which it classifies under the titles Category I, II, III, IV, and V. Category I detentions relate to situations where it is functionally impossible for the detaining authorities to cite any reasonable justification for their actions. Category II covers multiple specific violations of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, another key UN treaty. Category III violations cover the partial or complete violation of an individual’s right to a fair trial. Category IV covers individuals held in custody for extended periods without access to legal review or assistance while their asylum, refugee, or immigration claims undergo lengthy administrative processing. Category V covers detention-related violations of international human rights law on discriminatory grounds.
Arbitrary detention is closely associated with political persecution, though the practice also extends into areas covered by the field of international relations. The Center for Justice and Accountability (CJA), a San Francisco-based human rights nongovernment organization (NGO), cites China, Egypt, and Syria as leading global centers of arbitrary detention. Repressive regimes in countries including North Korea and Iran are also widely believed to regularly engage in the practice, though objective and impartial insights related to these countries are difficult to extract due to tight state controls over domestic media. In the early 2020s, political turmoil in countries including Myanmar (Burma), Uganda, and Sri Lanka have also resulted in the arbitrary detention of opposition activists and other severe punishments deemed illegal under international standards.
Global Affairs Canada, among other government agencies and NGOs, notes a trend of authoritarian countries arbitrarily detaining foreign nationals and using them as leverage in political negotiations. Canada and China were involved in exactly such a standoff when China arbitrarily detained two Canadian citizens, Michael Spavor and Michael Kovrig, after Canada arrested Chinese technology executive Meng Wanzhou in Vancouver in December 2018 at the request of the United States Department of Justice (DOJ). Spavor and Kovrig were released in September 2021 following nearly three years of arbitrary detention, shortly after Canada released Meng from house arrest. The UN’s WGAD also recognizes a global trend of arbitrary detention extending to individuals suspected or accused of drug-related criminal offenses. Journalists represent another class of people frequently targeted for arbitrary detention, with the Reporters Without Borders (RSF) NGO documenting 533 such cases in 2022, including 57 deaths.
Governments that unlawfully and arbitrarily detain individuals are rarely held accountable for their actions. One notable exception applies to the case of Abukar Hassan Ahmed, a Somali law professor who was detained by military officials in Somalia beginning in 1988. In 2013, a US court found the Somali colonel who initially ordered Ahmed’s detention liable for $15 million in damages related to the case. It was the first time an international court awarded damages to an individual detained by Somalia’s infamous National Security Service (NSS) during the twenty-one-year rule of the country’s Siad Barre military government.
While arbitrary detention continues to be primarily associated with non-democratic forms of authoritarian governance, it also remains a concern in many leading democracies including the United States. Critics of US policy allege that the United States regularly violates Article 9 of the Universal Declaration of Human Rights and other international human rights statutes, particularly with respect to immigration and antiterrorism. Detractors cite domestic US immigration detention centers as a main venue of state-backed arbitrary detention, especially with respect to individuals suspected of irregular entry to the United States and coercive policies that separate families and convince asylum-seekers to relinquish their claims in exchange for access to resettlement assistance. The long-term detention of terrorism suspects at international “black sites” operated by agencies belonging to the US intelligence community has also been cited as a form of arbitrary detention by opponents of the practice, which US antiterrorism operatives began to use following the terrorist attacks of September 11, 2001.
Bibliography
“About Arbitrary Detention.” United Nations Working Group on Arbitrary Detention, 2023, www.ohchr.org/en/about-arbitrary-detention. Accessed 14 Jun. 2023.
“Arbitrary Detention.” Human Rights Watch, 2002, www.hrw.org/reports/2002/us911/USA0802-05.htm. Accessed 14 Jun. 2023.
“Arbitrary Detention.” The Center for Justice and Accountability, 2023, cja.org/human-rights-issues/arbitrary-detention/. Accessed 14 Jun. 2023.
Boyko, John. “Meng Wanzhou Affair (Two Michaels Case).” Canadian Encyclopedia, 15 Dec. 2022, www.thecanadianencyclopedia.ca/en/article/meng-wanzhou-affair. Accessed 14 Jun. 2023.
“Myanmar: Events of 2022.” Human Rights Watch, 2022, www.hrw.org/world-report/2023/country-chapters/myanmar. Accessed 14 Jun. 2023.
“New Record Number of Journalists Jailed Worldwide.” Reporters Without Borders, 2023, rsf.org/en/new-record-number-journalists-jailed-worldwide. Accessed 14 Jun. 2023.
Oliver, Isabella. “Recent UN Report on Arbitrary Detention and Drug Policies Underscores Urgent Need for Reform.” Washington Office on Latin America, 15 Oct. 2021, www.wola.org/analysis/un-report-arbitrary-detention-and-drug-policies-calls-for-reform/. Accessed 14 Jun. 2023.
“Sri Lanka: Release Student Activists Arbitrarily Detained Under Anti-Terror Law.” International Federation for Human Rights, 18 Oct. 2022, www.fidh.org/en/region/asia/sri-lanka/sri-lanka-release-student-activists-arbitrarily-detained-under-anti. Accessed 14 Jun. 2023.