The Working Group on Arbitrary Detention(WGAD) 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.
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:
The mandate lasts for a period of three years, and was most recently extended for a further three-year period by Human Rights Council resolution 33/30 of 30 September 2016. [3]
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]
Former members include:
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. [4] 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 or otherwise unreasonable, that it must be considered arbitrary. [4]
The Working Group on Arbitrary Detention is unique in that its mandate expressly provides for the consideration of individual complaints. The Working Group is the only non-treaty-based UN human rights mechanism to investigate and decide 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. [6] 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. [7]
The Working Group has identified detention or imprisonment as arbitrary if it falls into one of the following categories;
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. [8]
Upon receiving information under this adversary procedure, the Working Group then adopts one of the following approaches; [9]
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. [10] The informal nature of the Working Group can strengthen the position of the individual represented, by easing the objective burden of proof on them.
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. [4] 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. [11] This a purely humanitarian undertaking, and does not prejudice the Working Group's final opinion on whether the deprivation of liberty is indeed arbitrary. [6]
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. [4] For example, in May 2017 the Working Group visited Argentina. In 2016 the Group visited the United States of America and Azerbaijan. The Group tend to visit between one and four countries per year.
On a country visit, members of the Working Group engage in a variety of tasks. These can include meeting with representatives of the executive, legislators, and other state officials. The Group also has the right to visit places of detention and have private discussions with detainees. [4] 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.
More generally, the Working Group seeks to encourage broader international understanding of arbitrary detention, and promote universal standards. [7] This is achieved through a more general advisory role, with the formulation of deliberations. [4] The Group formulates deliberations on general issues to assist States in safeguarding against the practice of arbitrary deprivation of liberty. For example, the Group have developed deliberations on issues relating to house arrest, psychiatric detention, deprivation of liberty subsequent to a conviction and resulting from the use of the internet, on rehabilitation through labour and situations regarding immigrants and asylum seekers. The Group have also provided legal analysis regarding the International Criminal Tribunal for the Former Yugoslavia and clarified the definition of arbitrary deprivation of liberty under customary international law and the urgent appeals procedure.
The Working Group must submit Annual Reports to the Human Rights Council, summarising the previous year's activities. The report will express observations made while investigating cases and on field missions in differing countries. The report details the Working Group's 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. [12]
The Group functions as a quasi-judicial body. [10] The Group 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. [7] Due to its reliance on the cooperation of states, it can be argued that this weakens the authority of the Group.
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 have ratified the Covenant.
The opinions of the Working Group are considered authoritative by some prominent international judicial institutions including the European Court of Human Rights. [13] 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. [7] 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. [7] 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.
A further criticism of the Group is that it has taken no steps toward creating a robust follow-up procedure, to apply pressure on states arbitrarily detaining individuals. Establishing a systematic follow-up procedure could ensure an even greater accountability on governments, acting as a name and shame process to pressure them into action. A follow-up procedure may also be beneficial for providing feedback for future policy decisions. [7] It could also aid non-governmental organisations in petitioning governments with unresolved cases. Having a record of resolved cases could help the Group to keep track of the status of detainees and any correlation between the action of the Working Group. Information and statistics drawn from this can be publicised, and help to increase outreach.
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 for 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. [14] The intention behind these were to assist states in fulfilling their obligation to avoid arbitrary deprivation of liberty. [15] 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. [14] The text was adopted in April 2015. [16]
On 5 February 2016, the group released a report stating that Assange had been subject to arbitrary detention by the UK and Swedish Governments since 7 December 2010, including his time in prison in Britain and Sweden, on conditional bail, and in the Ecuadorian embassy. According to the report, Assange should be allowed to walk free and be given compensation. [17] [18]
The UK and Swedish governments rejected the report. [19] Then-UK Secretary of State for Foreign and Commonwealth Affairs, Philip Hammond, said the claim was "ridiculous" and that the group was "made up of lay people", and called Assange a "fugitive from justice" who "can come out any time he chooses". [20] UK and Swedish prosecutors called the group's claims irrelevant. [21] [22] The UK said it would arrest Assange should he leave the Ecuadorian embassy. [23] Mark Ellis, executive director of the International Bar Association, stated that the finding is "not binding on British law". [24] United Nations High Commissioner for Human Rights Zeid Ra'ad al Hussein has claimed that the finding is based on international law. [25]
On 13 February 2018, the Westminster Magistrates’ Court, while considering whether the arrest warrant issued against Assange should be upheld, rejected the findings of the Working Group, stating in part that "The group appears to have based its conclusions on some misunderstandings of what occurred after Mr Assange’s arrest." Senior District Judge (Chief Magistrate) Emma Arbuthnot did not find that Mr Assange's stay in the Embassy was "inappropriate, unjust, unpredictable, unreasonable, unnecessary or disproportionate." [26] [27]
In September 2021, shortly after Donziger was sentenced in a New York for petty contempt of court, the group determined that Donzinger's arrest was arbitrary and a violation of international law and called for his release. In reviewing the case, WGAD found a “staggering display of lack of objectivity and impartiality” on the part of the judges involved, particularly Federal District Court Judges Lewis A. Kaplan and Loretta Preska. The report stated that his sentencing was done in retaliation for Donziger’s work as a legal representative of indigenous communities in Ecuador. The group called on the US government to conduct a thorough investigation of the circumstances of Donziger’s prosecution and imprisonment and to “take appropriate measures against those responsible for the violation of his rights.” [28] [29] [30]
Donziger’s lawyer, Martin Garbus, stated that he would be using the group's report to demand Donziger’s release from house arrest. [31]
The United Nations Commission on Human Rights (UNCHR) was a functional commission within the overall framework of the United Nations from 1946 until it was replaced by the United Nations Human Rights Council in 2006. It was a subsidiary body of the UN Economic and Social Council (ECOSOC), and was also assisted in its work by the Office of the United Nations High Commissioner for Human Rights (UNOHCHR). It was the UN's principal mechanism and international forum concerned with the promotion and protection of human rights.
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force on 23 March 1976 after its thirty-fifth ratification or accession. As of June 2024, the Covenant has 174 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.
Freedom Now is a Washington, D.C.-based non-profit, non-partisan organization that protects individuals and communities from government repression and defends human rights through direct legal support, targeted high-leverage advocacy, and capacity-building analysis and assistance.
Special rapporteur is the title given to independent human rights experts whose expertise is called upon by the United Nations (UN) to report or advise on human rights from a thematic or country-specific perspective.
Torture in Bahrain refers to the violation of Bahrain's obligations as a state party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other international treaties and disregard for the prohibition of torture enshrined in Bahraini law.
Administrative detention is arrest and detention of individuals by the state without trial. A number of jurisdictions claim that it is done for security reasons. Many countries claim to use administrative detention as a means to combat terrorism or rebellion, to control illegal immigration, or to otherwise protect the ruling regime.
Arbitrary arrest and arbitrary detention is the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law or order.
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency for an indefinite amount of time without a trial. The Human Rights Watch considers this practice as violating national and international laws, particularly human rights laws, although it remains in legislation in various liberal democracies.
Alkarama is an independent Swiss-based human rights non-governmental organization established in 2004 to assist all those in the Arab World subjected to, or at risk of, extrajudicial killings, disappearances, torture, and arbitrary detention. Acting as a bridge between individual victims in the Arab World and international human rights mechanisms, Alkarama works towards an Arab World where all individuals live free, with dignity, and protected by the rule of law.
The Lexington Principles on the Rights of Detainees is a body of international due process principles that reflect the prevailing transnational norms in the area of detainee treatment. The Lexington Principles were completed and published on April 1, 2009. The instrument consists of 45 principles and countless annotations prepared by the project's law student editorial board. A primary purpose of the drafters of the Lexington Principles was to assist the jurisprudential evolution of American constitutional due process standards after the U.S. Supreme Court's decision in Boumediene v. Bush. While each Principle is based on international law, all provisions have been drafted to facilitate vertical norm internalization into the domestic legal system of the United States and other common law countries.
Qatar State Security is the state intelligence agency of Qatar. It is a branch of the Qatari Ministry of Interior.
Steven Robert Donziger is an American attorney known for his legal battles with Chevron, particularly Aguinda v. Texaco, Inc. and other cases in which he represented over 30,000 farmers and indigenous people who suffered environmental damage and health problems caused by oil drilling in the Lago Agrio oil field of Ecuador. The Ecuadorian court awarded the plaintiffs $9.5 billion in damages, which led Chevron to withdraw its assets from Ecuador and launch legal action against Donziger in the US. In 2011, Chevron filed a RICO (anti-corruption) suit against Donziger in New York City. The case was heard by US District Judge Lewis A. Kaplan, who determined that the ruling of the Ecuadorian court could not be enforced in the US because it was procured by fraud, bribery, and racketeering activities. As a result of this case, Donziger was disbarred from practicing law in New York in 2018.
Swedish Doctors for Human Rights (SWEDHR) is a Sweden-based non-governmental organization (NGO) that previously researched and published opinion pieces on international affairs, and campaigned in support of doctors and anti-war activists persecuted or imprisoned on issues of civil liberties and freedom of expression. SWEDHR claimed to shed light on "health issues of war crimes & Human Rights abuses worldwide",[1] and it acknowledged to be an “alternative NGO” with regard to mainstream organizations. Ensuing, the views presented in its publications tended to differ from, or contradicted, those of Human Rights Watch, Amnesty International Sweden and other organizations. Up to mainly 2019, SWEDHR's primary focus has been the Julian Assange international case. During 2020 and onwards, the focus of the organization has been solely on issues around the Covid-19 pandemic.
Immigration detention of refugee and asylum seeking children in Thailand violates the rights of children under international law. The undocumented migrant children are detained for indefinite and prolonged periods without proper access to legal support. Thailand is key transit route, host and final destination for refugees seeking asylum in southeast Asia and Australia. During the Universal Periodic Review (UPR) session in May 2016, various human rights issues including detention of refugee and asylum seeking children were reported. Currently, there are no effective alternatives to immigration detention and all sectors of population including children are subject to detention.
Secret prisons of SBU are secret detention facilities operated by Security Service of Ukraine (SBU) in Eastern Ukraine to incarcerate suspected Russian-backed separatists.
Frank Rusagara (1955) is a retired Brigadier General of the Rwanda Defense Force. He was arrested and charged with inciting insurrection and tarnishing the government’s image. Initially sentenced to 20 years imprisonment, he is now serving 15 years after the Court of Appeal in Kigali reduced his sentence while upholding his conviction in 2019.
Tom Byabagamba (1967) is a former Colonel of the Rwanda Defense Force and a former head of the Presidential Guard unit. He was arrested and charged with inciting insurrection and tarnishing the government's image. Initially sentenced to 21 years imprisonment, he is now serving 15 years after the Court of Appeal in Kigali reduced his sentence while upholding his conviction in 2019. The court also stripped Byabagamba of his rank.
Mohamed al-Bambary (1969/70) is a Sahrawi media activist. He was arrested and charged with "belonging to a criminal gang, taking part in a murder, contributing to a public disturbance, battery resulting in death, vandalism of public property, and assaulting officials in the performance of their duties,”. Initially sentenced to twelve years imprisonment, his term was reduced to six years following a re-trial.
Pygamberdy Allaberdyev is a lawyer from Turkmenistan, who was sentenced to a 6-year prison term on hooliganism charges but was released after 2 years. In May 2022, the Working Group on Arbitrary Detention at the United Nations concluded that Turkmenistan had violated international human rights law in detaining Allaberdyev, as his detention was likely related to his pro-democracy work. On December 10, 2022, he was released as part of a mass amnesty related to Turkmenistan's Day of Neutrality.
Throughout its history and into the present, the United States has held political prisoners, people whose detention is based substantially on political motives. Prominent U.S. political prisoners have included anti-war socialists, civil rights movement activists, conscientious objectors, and War on Terrorism detainees.