Published in July 2018.
This module is a resource for lecturers
International human rights instruments
International Covenant on Civil and Political Rights
The starting point for any examination of international obligations and standards regarding arrest and detention is article 9 of the International Covenant on Civil and Political Rights (ICCPR), which provides that:
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.
'Arrest' and 'detention'
The terms 'arrest' and 'detention' carry slightly different meanings from one legal system to the other. Human rights treaties use the concept of 'deprivation of liberty' as the overall concept. Examples of 'deprivation of liberty' include, for instance, police custody, remand detention, imprisonment after conviction, house arrest, involuntary hospitalization, internment of captured combatants or civilians during armed conflict, and also include being involuntarily transported.
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the United Nations General Assembly (resolution 43/173) defines 'arrest' as "the act of apprehending a person for the alleged commission of an offence or by the action of an authority". A 'detained person' is defined as "any person deprived of personal liberty except as a result of conviction for an offence". The Body of Principles defines 'imprisonment' as deprivation of liberty as a result of conviction for an offence.
For the sake of brevity, throughout this Module and the E4J University Module Series the term 'detention' will be used to refer to all forms of deprivation of liberty, in the context of criminal justice and outside, from the moment of arrest to (and including) the serving of a sentence of imprisonment. This corresponds to the use of the term by the United Nations Working Group on Arbitrary Detention (WGAD).
Further guidance is given by an authoritative study carried out by the former United Nations Commission on Human Rights,* which is still utilized by WGAD.
'Arrest': "the act of taking a person into custody under the authority of the law or by compulsion of another kind and includes the period from the moment he is placed under restraint up to the time he is brought before an authority competent to order his continued custody or to release him." (Para. 19)
'Detention': "the act of a competent authority (usually judicial) of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities." * (Para. 19).
'Liberty' and 'security of person'
Interpretative guidance of these terms is given by the Human Rights Committee in its General Comment No. 35 regarding the interpretation and reach of article 9 of ICCPR.**
'Liberty': "Liberty of person concerns freedom from confinement of the body, not a general freedom of action." (Para. 3). An important ingredient in a criminal justice context is that "[d]eprivation of personal liberty is without free consent". (Para. 6).
'Security of person': this "concerns freedom from injury to the body and the mind, or bodily and mental integrity ... Article 9 guarantees those rights to everyone. 'Everyone' includes, among others, girls and boys, soldiers, persons with disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of crime, and persons who have engaged in terrorist activity." (Para. 3).
* United Nations, Economic and Social Council, Commission on Human Rights (1961). Study of the right of everyone to be free from arbitrary arrest, detention and exile: report of the Committee . 9 January. E/CN.4/813.
** United Nations, Human Rights Committee (2014). General Comment No. 35: Article 9 (Liberty and security of person) . 16 December. CCPR/C/GC/35.
A starting presumption is that everyone should retain their liberty and that an individual should only be deprived of it where absolutely necessary. As the Human Rights Committee has observed, "[l]iberty and security of person are precious for their own sake, and also because the deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights." (General Comment No. 35 CCPR/C/GC/35, para. 2).
Where such deprivation of liberty does occur then it must not be 'arbitrary', a requirement which lies at the core of this provision, yet one which is not always defined or elaborated upon in international treaty instruments. Though not carrying the same normative weight as a treaty body or ultimately of a court, nevertheless the outputs of the special mandate holder, the United Nations Working Group on Arbitrary Detention (WGAD), are important and influential here, especially in terms of articulating key characteristics and parameters of 'arbitrariness'.
Its adopted approach reflects the one articulated in the former United Nations Commission on Human Rights' Resolution 1991/42, further clarified by its Resolution 1997/50, namely to take the international obligations articulated in the 1948 Universal Declaration of Human Rights (UDHR) and relevant international treaties ratified by States as its benchmark. With this approach, "the deprivation of liberty is not arbitrary if it results from a final decision taken by a domestic judicial process; it is (a) in accordance with domestic law; and (b) in accordance with other relevant international standards set forth in the Universal Declaration of Human Rights 1948 and the relevant international instruments accepted by the States concerned" (OHCHR, 2000, Section B).
The Universal Declaration of Human Rights is of special importance here to the extent that the provisions relevant to arrest and detention issues have acquired customary international law status, thereby imposing obligations on States even if they are not parties to relevant treaties including the ICCPR. Regarding the customary nature of the prohibition of arbitrary deprivation of liberty, the view of the WGAD is that the:
... widespread ratification of international treaty law on arbitrary deprivation of liberty, as well as the widespread translation of the prohibition into national laws, constitute a near universal State practice evidencing the customary nature of the arbitrary deprivation of liberty prohibition. Moreover, many United Nations resolutions confirm the opinio iuris supporting the customary nature of these rules. (General Assembly, Human Rights Council report A/HRC/22/44, para. 43).
Indeed, WGAD is of the view that "the prohibition of arbitrary deprivation of liberty is part of treaty law, customary international law and constitutes a jus cogens norm. Its specific content, as laid out in this deliberation, remains fully applicable in all situations" (General Assembly, Human Rights Council report A/HRC/22/44, para. 51). This approach has been clarified by WGAD through the development of further criteria that it has used when considering cases submitted to it alleging violations of article 9 of ICCPR, drawing also on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. These criteria are closely linked to article 14 of ICCPR right to a fair trial, e.g., where a self-incriminating confession is given whilst a detainee is being held incommunicado; or where the detention conditions (in a broad sense) may impact negatively on a person's ability to prepare effectively for their trial.
The Group considers any deprivation of liberty to be arbitrary if a case falls into one of the following five categories:
(1) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty, as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her (category I);
(2) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13-14 and 18-21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18-19, 21-22 and 25-27 of the International Covenant on Civil and Political Rights (category II);
(3) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);
(4) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV);
(5) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). (See further General Assembly, Human Rights Council A/HRC/36/38, para. 8).
Generally, human rights treaties on arrest and detention discuss the deprivation of liberty as per 'the law' which, as will be seen, is specified in different ways within treaty texts as well as in relation to how this concept is interpreted. Article 9(1) simply refers to grounds established by 'law'. As the Human Rights Committee has explained, "[t]he notion of 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality." (General Comment No. 35 CCPR/C/GC/35, para. 12). Therefore, for instance, a violation of legality occurs if "an individual is arrested or detained on grounds which are not clearly established in domestic legislation" (Human Rights Committee views A/52/40, p. 231, para. 5.5). Domestic law must be precise in order for the affected individual to foresee the circumstances of lawful arrest and detention and the remedies for the deprivation of liberty. Even where the legal basis for detention is clear, the law must not confer overbroad discretion on police officers or other public officials as to the way in which it can be exercised. (For such concerns see e.g. Human Rights Committee concluding observations CCPR/CO/70/TTO).
Article 9 is not included in the list of non-derogable rights of article 4 of ICCPR (see Module 7). In practice, however, the right is widely regarded to be non-derogable since "derogation from customary international law's prohibition of arbitrary deprivation of liberty is not possible". (See e.g. General Assembly, Human Rights Council report A/HRC/22/44, para. 50). Consequently, WGAD has deliberated that:
Arbitrary deprivation of liberty can never be a necessary or proportionate measure, given that the considerations that a State may invoke pursuant to derogation are already factored into the arbitrariness standard itself. Thus, a State can never claim that illegal, unjust, or unpredictable deprivation of liberty is necessary for the protection of a vital interest or proportionate to that end. (General Assembly, Human Rights Council report A/HRC/22/44, para. 48).
This reflects the opinion of the Human Rights Committee also which, in its General Comment No. 35 (CCPR/C/GC/35) observed that "[t]he fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances." (Para. 66). It went on to comment that "[t]he procedural guarantees protecting liberty of person [e.g., the ability to challenge the grounds for detention] may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights." (Para. 67).
One final important observation here relates to the scope of article 9 of ICCPR regarding terrorist and counter-terrorist practices. The Human Rights Committee has interpreted this provision broadly to mean that States have responsibility not only in relation to their own officials, but also to: "take appropriate measures to protect the right to liberty of person against deprivation by third parties. States parties must protect individuals against abduction or detention by individual criminals or irregular groups, including armed or terrorist groups, operating within their territory". In addition, States are expected to exercise due diligence through the adoption of contextually appropriate measures "to protect individuals against deprivation of liberty by the action of other States within their territory", e.g., through extraordinary rendition. (Human Rights Committee General Comment No. 35 CCPR/C/GC/35, para. 7).