Accountability For Illegal Detention And Arbitrary Arrests
Illegal detention and arbitrary arrest are violations of fundamental human rights and represent a breach of international law. International human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), provides a clear framework for the protection of individuals from arbitrary arrest and detention. The Universal Declaration of Human Rights (UDHR) also prohibits arbitrary detention and guarantees the right to liberty and security. Despite these strong legal provisions, violations of these rights continue to occur globally, often in the context of state actions against dissidents, journalists, political opponents, and vulnerable groups.
In this explanation, we explore how the international legal community addresses these violations, focusing on case law where accountability for illegal detention and arbitrary arrests has been sought or achieved. We discuss several cases involving illegal detention and arbitrary arrest in domestic and international legal settings.
1. Case: Guantanamo Bay Detentions (United States, 2001 - present)
Overview: Following the September 11, 2001, attacks, the United States detained hundreds of individuals at the Guantanamo Bay detention camp, many of whom were suspected of having links to terrorism. Many detainees were held without charge, trial, or access to legal counsel, leading to widespread concerns over arbitrary detention and violations of international human rights standards.
International Legal Framework: The ICCPR (particularly Article 9) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibit arbitrary detention and require states to ensure due process rights. The Geneva Conventions, particularly Common Article 3, also provides protections for individuals detained during armed conflicts, including non-combatants.
Case Law:
Boumediene v. Bush (2008): In this landmark case, the U.S. Supreme Court ruled that detainees at Guantanamo Bay had the constitutional right to challenge their detention in U.S. courts through the Habeas Corpus Act. The Court held that detainees held at Guantanamo Bay had the right to seek judicial review of their detention, affirming that the U.S. government could not indefinitely detain individuals without due process of law.
Rasul v. Bush (2004): The U.S. Supreme Court ruled that the detainees at Guantanamo Bay had the right to petition for writs of habeas corpus in U.S. courts. This case was significant because it emphasized that the constitutional protections against illegal detention apply to detainees at Guantanamo Bay.
Outcome: Despite the legal victories in challenging indefinite detention at Guantanamo Bay, the issue of arbitrary arrest and illegal detention persists due to ongoing concerns about the use of military commissions for trial, prolonged detention without charge, and allegations of torture and mistreatment.
2. Case: Aung San Suu Kyi’s Detention (Myanmar, 2021)
Overview: Aung San Suu Kyi, the leader of Myanmar and Nobel Peace Prize laureate, was arrested on February 1, 2021, during a military coup by Myanmar’s armed forces (the Tatmadaw). Her detention, along with that of other political leaders and activists, was widely condemned as illegal and arbitrary under both Myanmar’s own laws and international law. She was charged with various offenses, including incitement to public disorder, breaching COVID-19 protocols, and corruption, but these charges were widely seen as politically motivated.
International Legal Framework: The Universal Declaration of Human Rights (UDHR) and ICCPR both prohibit arbitrary arrest and detention. Article 9 of the ICCPR specifically requires that no one shall be subjected to arbitrary arrest or detention, and that anyone arrested shall be promptly informed of the reasons for their arrest and be brought before a judge.
Case Law:
Myanmar: Aung San Suu Kyi v. Myanmar Military Regime (2021-2022): Following her detention, the United Nations and international human rights organizations like Amnesty International and Human Rights Watch called for her immediate release, describing the coup as a violation of both Myanmar’s national laws and international human rights norms. The UN Human Rights Council (UNHRC) passed several resolutions condemning the military junta’s actions and demanding the release of political prisoners, including Aung San Suu Kyi.
Outcome: Suu Kyi was held incommunicado for several months, and the military junta has been criticized for its arbitrary detention of political leaders. While efforts for her release continue through diplomatic channels, this case exemplifies the difficulty of holding authoritarian regimes accountable for violations of basic human rights like illegal detention.
3. Case: The Case of Maher Arar (Canada, 2002)
Overview: In 2002, Maher Arar, a Canadian citizen, was detained at New York's JFK International Airport while transiting to Canada from a trip to Tunisia. Arar was detained by U.S. authorities based on accusations of being involved with terrorists. Without being charged or granted a trial, Arar was deported to Syria, where he was tortured for over a year. Upon his return to Canada, Arar filed a lawsuit for unlawful detention, abuse, and torture.
International Legal Framework: This case involved violations of both international human rights law, including the Convention Against Torture (CAT), and Canadian constitutional law. Article 9 of the ICCPR prohibits arbitrary arrest and detention, and Article 3 of the CAT prohibits the extradition or deportation of individuals to countries where they are at risk of torture.
Case Law:
Maher Arar v. Canada: Arar sued both the U.S. and Canadian governments for his unlawful detention and torture. The Canadian Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2006) concluded that Canadian officials had indirectly assisted in his deportation to Syria. While the U.S. government did not hold its personnel accountable for the actions, the Canadian government publicly apologized to Arar and awarded him compensation for his suffering.
Outcome: Arar’s case highlights issues related to extraordinary rendition, the illegal detention of individuals without charge, and the importance of diplomatic accountability. While Canada eventually acknowledged the violation of Arar’s rights, it serves as an example of how accountability for illegal detention may not always extend to the countries involved in the process of arbitrary arrest and rendition.
4. Case: The Case of Khaled El-Masri (Germany, 2003-2004)
Overview: Khaled El-Masri, a German national of Lebanese descent, was detained by U.S. officials in Macedonia in 2003, based on mistaken identification as a terrorism suspect. He was subsequently subjected to extraordinary rendition and held in a CIA black site in Afghanistan, where he was tortured for months before being released without charge. El-Masri filed a lawsuit against the U.S. government, and his case became a significant example of arbitrary detention and human rights violations.
International Legal Framework: El-Masri’s case violated the prohibition on torture under the Convention Against Torture (CAT), and Article 9 of the ICCPR, which forbids arbitrary detention. The European Court of Human Rights (ECHR) has held that extraordinary rendition and illegal detention violate the rights guaranteed under the European Convention on Human Rights (ECHR), particularly Articles 5 and 6, which concern liberty and security, as well as fair trial rights.
Case Law:
El-Masri v. The United States (2007): El-Masri’s case was dismissed in U.S. courts due to national security concerns. However, in El-Masri v. the Former Yugoslav Republic of Macedonia (2012), the European Court of Human Rights ruled that Macedonia violated El-Masri's rights under the European Convention by allowing his illegal detention and extraordinary rendition. The Court held that Macedonia was complicit in the violation of El-Masri’s rights.
Outcome: While El-Masri did not receive a satisfactory legal remedy in the United States, his case marked a significant milestone in holding European states accountable for their complicity in illegal detention and extraordinary rendition. The case exposed significant flaws in the global fight against terrorism, particularly regarding the treatment of detainees.
5. *Case: The Case of the "Disappeared" in Argentina (1970s-1980s)
Overview: During the military dictatorship in Argentina (1976-1983), the regime conducted widespread arbitrary arrests, illegal detentions, and forced disappearances of suspected political opponents. Tens of thousands of individuals were detained without charge and subjected to torture or execution. The Mothers of the Plaza de Mayo movement sought justice for the "disappeared" and their families.
International Legal Framework: Argentina’s actions violated the International Convention on Civil and Political Rights (ICCPR), particularly Article 9, which ensures the right to liberty and security, and Article 7, which prohibits torture and cruel, inhuman, or degrading treatment. The Inter-American Commission on Human Rights also intervened in cases of forced disappearances.
Case Law:
The Case of The Disappeared: In 1984, the Inter-American Commission on Human Rights found Argentina guilty of violating international law concerning arbitrary detention, forced disappearances, and torture. The Argentine courts have since prosecuted many of those responsible for the disappearances, with the Trial of the Juntas in 1985 being a significant step toward justice.
Outcome: The trial of perpetrators under the "Dirty War" was a landmark case for accountability for arbitrary detention and forced disappearance. Many military officers were held accountable in domestic courts, though the pursuit of justice was delayed due to amnesty laws (later repealed) and political challenges. The case serves as a precedent for prosecuting human rights violations, even many years after the crimes have been committed.
Conclusion
Accountability for illegal detention and arbitrary arrest is a complex and critical issue in international human rights law. The cases highlighted above demonstrate the legal frameworks available to address such violations, as well as the challenges involved in ensuring accountability, especially when perpetrators are state actors or when the violations occur in politically sensitive or conflict-ridden environments. Despite the significant legal victories in cases like Boumediene v. Bush, El-Masri v. Macedonia, and others, the continued occurrence of arbitrary detentions and human rights abuses underscores the need for stronger international oversight and effective legal mechanisms to prevent and punish violations of the right to liberty and security.
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