Conceptualising Arbitrary Detention

Front matter

Doea o o pem

CONCEPTUALISING ARBITRARY DETENTION

Power, Punishment and Control

Introduction

Theorising and Conceptualising “‘Arbitrariness”’

Notions of the “Arbitrary”

“Arbitrariness” as an Indication of Harm

The Law and Practice of Arbitrary Detention

in Context

The Securitisation of Detention: Exceptional Regimes, Security Frameworks and Counter-Terrorism Measures Detention of Dual and Foreign Nationals for Leverage Detention and Pandemic Exceptionality ii

Detailed Contents

About the Author

Acknowledgements

Foreword by Priya Gopalan and Matthew Gillett

1 Introduction 1.1 The impetus for the book 1.2 Some of the themes explored in the book 1.3 The trajectory

PART I Theorising and Conceptualising “Arbitrariness” 2 Notions of the “Arbitrary” 2.1 Introduction 2.2 Multiple meanings 2.3 Theorising “arbitrariness” 2.4 “Arbitrariness” in human rights law 2.4.1 “Arbitrariness” and the social conception of rights 2.4.2 “Arbitrary interference” and human rights decision-making (i) Qualified rights (ii) Limited rights: the arbitrary deprivation of the right to life 2.4.3 “Arbitrariness” and positive obligations 2.5 The “arbitrariness” in arbitrary detention 2.5.1 The history and meaning of “arbitrary” in arbitrary detention 2.5.2 Arbitrary detention: both qualified and limited 2.5.3 States’ positive obligations to ensure that detention is non-arbitrary 2.5.4 Relationship with other rights 2.6 The grey zones of “detention” and their impact on arbitrariness 2.7 Conclusions

NRF eS

Part II Detailed Contents

*‘Arbitrariness” as an Indication of Harm 3.1 Introduction 3.2 The harms of arbitrary detention 3.3 Connection to torture and other cruel, inhuman, or degrading treatment or punishment 3.3.1 The torture definition and its component parts (i) Severity (ii) For such purposes as (iii) The involvement of the state (iv) Does not constitute lawful sanctions 3.3.2 Other forms of cruel, inhuman, or degrading treatment or punishment 3.4 Conclusions

The Law and Practice of Arbitrary Detention in Context Enforcing Hostility and Social Control 4.1 Introduction 4.2 Agamben and the theorisation of containment 4.3 Methods of containment 4.3.1 Detention as criminalisation 4.3.2 Detention as pathologisation 4.3.3 Detention as deterrence 4.4 The arbitrary detention of socially excluded and marginalised groups 4.4.1 The “unseen”: economic and social “degenerates” (i) Detention of persons who are homeless (ii) Detention on mental health grounds (iii) Detention of people who use drugs

4.4.2 The “reviled and resented”: racism, xenophobia, and other discriminatory treatment

(i) Groups discriminated against based on race, ethnicity or religious identity

(ii) Indigenous peoples

(iii) Discrimination based on gender or gendered roles

4.4.3 The “undeserving”: refugees and other migrants 4.5 Conclusions

105 111 113 114

119 123

Deterring Dissent 5.1 Introduction 5.2 How arbitrary detention is used to deter dissent 5.2.1 Criminalisation (i) Securitising dissent (ii) Criminally defamatory speech acts 5.2.2 Pathologising dissent 5.2.3 Isolating dissenters and using other non-traditional forms of detention 5.3 The dissenters 5.3.1 Opposition politicians 5.3.2 Environmental activists 5.3.3 Mass protest movements 5.4 Ulterior or pretextual motives 5.5 Interpol and the cross-border persecution of dissenters 5.6 Conclusions

The Securitisation of Detention: Exceptional Regimes, Security Frameworks and Counter-Terrorism Measures 6.1 Introduction 6.2 The power of the exception and the shunning of the everyday 6.2.1 The exigent exception: emergencies, exceptions and derogations 6.2.2 The exception of place: denial of extraterritoriality 6.2.3 The person as exception: “terrorists”, “non-combatants” and other rhetorical labels 6.2.4 The exception of law: lawfare and other narrative devices 6.3 Detention during armed conflicts 6.3.1 Detention by multinational forces 6.3.2 “Extraterritorial NIACs”, UN Security Council resolutions and the power to detain 6.3.3 Challenges with the transfer of detainees 6.4 National security, counter-terrorism and indefinite detention 6.4.1 Counter-terrorism and forever prisoners 6.4.2 Da’esh and quasi-carceral zones of exclusion 6.5 Conclusions vi

189 197

200 203

204 207 210

DETAILED CONTENTS

Detention of Dual and Foreign Nationals for Leverage 212

7.2 Arbitrary detentions and state-to-state leverage: the practice

7.3 The salience of labels: arbitrary detention, hostage-taking and unlawful coercion

7.3.1 The human rights violation of arbitrary detention

7.3.2 The crime of hostage-taking (i) ‘Any person’ (ii) “In order to compel’ (ii) Application to dual nationals detained in one of their states of nationality

7.3.3 Violating the principle of non-intervention

7.4 Negotiating release

7.5 Conclusions: the importance of multilateral approaches

8.2 Human rights, infectious diseases and the positive obligation of non-discrimination

8.3 The proportionality of anti-COVID measures that deprive persons of their liberty

8.4 Quarantines, lockdowns and other pandemic-related restrictions on liberty 8.5 Confinement: positive obligations in a state of hyper-engagement

8.5.1 Reconciling the equivalence of care principle in a pandemic

8.5.2 Anti-COVID measures in detention centres 8.5.3 Access to vaccines and treatment for detainees 8.5.4 COVID-19 and justifications for early release

8.6 Conclusions: the transformative potential of positive obligations vii

212 215

222,

262 265 268 274

ACHPR

ACHR ACommHPR

ACtHPR AP1

AP2

Arab Charter

ARS

ASEAN Human Rights Declaration

CAT CERD Committee

CESCR

CIA

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986)

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights Additional Protocol 1 to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3

Additional Protocol 2 to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609

Arab Charter on Human Rights (adopted 15 September 1994, League of Arab States)

Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of Its 53rd Session (23 April—1 June and 2 July—10 August 2001) UN Doc A/CN.4/SER.A/2001/Add.1 ASEAN Human Rights Declaration (adopted 18 November 2012, Heads of State/Government of ASEAN Member States)

United Nations Committee against Torture United Nations Committee on the Elimination of Racial Discrimination

United Nations Committee on Economic, Social and Cultural Rights

Central Intelligence Agency vill

CoE Convention of Belem do Para

CPRMW

CRC

CRPD

CRPD Committee

Declaration on Friendly Relations

DRC ECHR

ECOWAS ECtHR EMRIP

GC1

GC2

GC3

Council of Europe

Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (adopted 9 June 1994, entered into force 5 March 1995)

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003)

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)

Convention on the Rights of Persons with Disabilities (adopted on 13 December 2006, entered into force on 3 May 2008)

United Nations Committee on the Rights of Persons with Disabilities

‘Declaration on Principles of International Law, Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations’, UN Doc A/RES/2625(XXV) (24 October 1970)

Democratic Republic of the Congo

European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953)

Economic Community of West African States European Court of Human Rights

United Nations Expert Mechanism on the Rights of Indigenous Peoples

Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85

Geneva Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 ix

GC4

Hostages Convention

HRC HRDDP HRW

IAC IACommHR IACPPT

IACtHR IASC ICCPR

ICESCR

ICRC ICJ ICTY

IHL

ISAF

M23 MINUSMA

MONUSCO

NATO NGO NIAC OHCHR

OMCT

Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287

International Convention against the Taking of Hostages (adopted 19 December 1979, entered into force 3 June 1983) 1316 UNTS 205 Human Rights Council

Human Rights Due Diligence Policy

Human Rights Watch

international armed conflict

Inter-American Commission on Human Rights Inter-American Convention to Prevent and Punish Torture (adopted 9 December 1985, entered into force 28 February 1987)

Inter-American Court of Human Rights Inter-Agency Standing Committee International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976)

International Committee of the Red Cross International Court of Justice

International Criminal Tribunal for the former Yugoslavia

international humanitarian law

International Security Assistance Force Mouvement du 23 mars

United Nations Multidimensional Integrated Stabilization Mission in Mali

Mission de l’Organisation des Nations Unies pour la stabilisation en République démocratique du Congo [UN Stabilization Mission in the Democratic Republic of the Congo]

North Atlantic Treaty Organization nongovernmental organisation

non-international armed conflict

Office of the United Nations High Commissioner for Human Rights

Organisation Mondiale Contre la Torture [World Organisation against Torture]

PACE PTSD Refugee Convention

Rome Statute

SDF

SLAPPs SPEHA UDHR

UK UN UNCAT

UNGA UNHCR UNMIK

UNODC UNSC US VCCR

WGAD WHO YPG

Parliamentary Assembly of the Council of Europe post-traumatic stress disorder

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954)

Rome Statute of the International Criminal Court) (adopted 17 July 1998, entered into force 7 July 2002) UN Doc A/CONE183/9

Syrian Defence Forces

strategic lawsuits against public participation Special Envoy for Hostage Affairs

Universal Declaration of Human Rights, General Assembly Resolution 217 A (10 December 1948) United Kingdom

United Nations

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987)

United Nations General Assembly

United Nations High Commissioner for Refugees United Nations Interim Administration Mission in Kosovo

United Nations Office on Drugs and Crime United Nations Security Council

United States of America

Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) Working Group on Arbitrary Detention

World Health Organization

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About the Author

Carla Ferstman is Professor of Law at Essex Law School, United Kingdom. Her research focuses on the intersections between public international law, human rights law and international criminal law. She is a qualified barrister and solicitor (British Columbia, 1994). She has worked in private practice, and has advised governments, intergovernmental and nongovernmental organisations. Since 2018 she has been a member of the Council of Europe’s Expert Council on NGO Law and was a judge on the Aban Tribunal, a People’s Tribunal established to investigate atrocities during the November 2019 protests in Iran. She served as Legal Director (2001—2004) then Director (2004-2018) of the nongovernmental human rights organisation REDRESS, and as Executive Legal Advisor (1999-2001) of the Commission for Real Property Claims in Bosnia and Herzegovina. She holds a DPhil (Public International Law) (Oxon); LLM (NYU); LLB (UBC); BA (Philosophy) (Western).

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Acknowledgements

Iam so grateful to Ricky Romain for alowing me to feature his painting ‘One of the Musicians Who Only Play for the Drowning, on the cover of this book. He has written that the title of this series of his work, ‘The Musicians Who Only Play and Sing for the Drowning, ‘is drawn from the pain [he feels] as a visual artist, and musician about the migration of peoples, the loss of life and of dreams which have been sacrificed on route to a sometimes hostile destination’! Ricky’s work resonates with me, as it captures so well the sense of isolation and trauma that is a constant feature of human rights violations and, in this series, he contrasts that with the consoling and regenerative power of music.

Thank you to the University of Essex for funding the open access version of this publication. I am also grateful to the European University Institute for awarding me the Fernand Braudel fellowship in 2022, which afforded me a period of respite in Fiesole which was the perfect place to bring together the different strands of my thinking on the book.

Thank you to all the brave individuals I have had the privilege to know and to work with who experienced arbitrary detention or whose loved ones underwent arbitrary detention. It is impossible to mention all, but among those who were and are key inspirations for me (perhaps more than they know) are Keith Carmichael, the founder of the nongovernmental organisation REDRESS and survivor of years of arbitrary detention and brutal torture in Saudi Arabia, with whom I collaborated over many years; Sebnem Korur Fincanci, President of the Turkish Medical Association and a life-long human rights advocate who I have had the honour to work with and who was arbitrarily detained in Turkey on false terrorism-related charges for parts of the time in which this book was written; Richard Ratcliffe, husband of Nazanin Zaghari-Ratcliffe who was arbitrarily detained in the context of state hostage-taking perpetrated by Iran;

' Ricky Romain, “The Musicians Who Only Play and Sing for the Drowning’ (3 December 2019) <www.rickyromain.com/portfolio/the-musicians-who-only-play-and-sing-forthe-drowning/> accessed 7 July 2023.

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Yemsrach (Yemi) Hailemariam, whose then partner Andargachew Tsege was kidnapped, illegally rendered to Ethiopia where he was under sentence of death following an in absentia trial; Olivier Acuña Barba, a journalist falsely arrested, arbitrarily detained, tortured and subject to an unfair trial in Mexico; Suny Wilson, a former death row detainee in The Philippines who had been accused and then maintained in detention as a result of a plot of corruption and whose experience of arbitrary detention led him to call himself ‘Dead Man Alive’; Bill Sampson, a British/Canadian expatriate who was arbitrarily detained and tortured in Saudi Arabia. My hypothesis that arbitrary detention can amount to torture stems in large part from my glimpsing into the realities of their suffering, still reverberating years, decades and even lifetimes after the respective releases. My interest in detention stems too from my work in the prisons and cachots of Rwanda in the aftermath of the 1994 genocide.

I am thankful to my friends, colleagues and former colleagues (over time, all these labels blur) with whom I collaborated, shared ideas and drew inspiration, particularly to Sabina Garahan and Lutz Oette who graciously provided me comments and insights on the full draft of the manuscript and to Julie Hannah, Timo Jiitten, Noam Lubell, Steven Malby, Jude Bueno de Mesquita and Marina Sharpe for providing helpful feedback on various parts, and to Frances D’Souza, Alice Edwards, Faten Ghosn, Emily Jones, Kai Yin Low, Shadi Sadr, Elham Saudi, Jürgen Schurr, Christoph Sperfelt and Patricia Palacios Zuloaga for encouraging me in other ways. I am also grateful to Priya Gopalan and Matthew Gillett of the Working Group on Arbitrary Detention, and to the psychologists, traumatologists and clinicians who helped me fathom the unfathomable and shaped my understanding of trauma and the psychological sequelae of torture, and particularly to the indomitable Yael Danieli. Thank you too to four of my doctoral (and former) doctoral students who inspired in different ways parts of this research: particularly Sabina Garahan’s study of the European Court of Human Rights’ treatment of the right to liberty and the practice of arbitrary detention; Sarah Zarmsky’s consideration of the different ways to conceive of harm and, particularly, psychological harm; Ronit Matar’s analysis of the law’s tendencies to exclude non-hegemonic human legal subjects and the role of boundaries, and Matteo Bassetti’s consideration of how the law pathologises marginalised groups. I am also grateful for the feedback from colleagues in response to my presentation of parts of this monograph at the Human Rights Centre at the University of Essex. All errors and omissions are my responsibility alone.

I also want to thank Helen Davis, the Senior Commissioning Editor, Law at Bristol University Press, as well as the editorial team and peer reviewers at Bristol University Press for their faith in this project and their insightful comments.

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ACKNOWLEDGEMENTS

Parts of this book were written in my place of freedom, Salt Spring Island, my somewhat retreat that has in recent years served as a kind of respite and a place of quiet. Thanks to Lisa, Melody, Andrew and others I have reconnected with on the West Coast who have made it a joyous homecoming of sorts.