HRC54: The Working Group still battling with the use of Arbitrary Detention by States
The 54th Session of the Human Rights Council
11 September- 13 October 2023
Item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Interactive Dialogue with the Working Group on Arbitrary Detention
18 September 2023
By Teboho Mosebo/ GICJ
Executive Summary
On the 18th of September 2023, the 11th meeting of the 54th Regular Session of the Human Rights Council considered the report of Ms. Priya Gopalan, Chair-Rapporteur of the Working Group on Arbitrary Detention (A/HRC/54/51), during an Interactive Dialogue.
Ms Gopalan opened the Interactive Dialogue by presenting the findings of her latest report which was dedicated to the role the Working Group on Arbitrary Detention plays in fighting arbitrary detention. The Chair-Rapporteur provided statistics that the Working Group had adopted a total of 88 opinions concerning 160 persons in 50 countries under its regular procedure. The Working Group also transmitted 43 urgent appeals to 22 Governments and actors, 111 allegations and other letters to 61 governments, concerning at least 356 identified individuals.
Ms. Gopalan urged parties to provide comprehensive information on the implementation of the Working Group’s opinions. She further encouraged States to take all measures possible to prevent reprisals against those who had cooperated with the United Nations. In her report, the Chair-Rapporteur highlighted that the Working Group continued to explore various thematic issues to assist stakeholders in preventing arbitrary detention, including disseminating findings. The Working Group called on States to balance the response to public health emergencies with their obligations to uphold human rights; to refrain from using anti-disinformation laws to prosecute individuals; and to take all necessary measures to protect and empower environmental human rights defenders.
The Working Group on Arbitrary Detention visited Botswana from the 4th to the 15th of July 2022 and Mongolia from the 3rd to the 14th of October 2022. Even though positive developments were observed in both countries, there were also thematic issues identified including; arbitrary detention and laws on spreading disinformation, arbitrary detention and the coronavirus disease (COVID-19) pandemic, and; deprivation of liberty of environmental human rights defenders. In the report, Ms Gopalan mentioned that the Working Group was to commence its visit to Mexico on that day of the 18th September 2023 till the 29th of September 2023. The Working Group also planned a visit to the Bahamas from the 27th of November to the 8th of December 2023 and had also accepted an invitation from the Government of Canada to conduct a visit from the 13th until the 24th of May 2024.
Many delegations expressed strong support and gratitude for the work undertaken by the Working Group and the role they play in combating arbitrary detention all over the world. However, grave concern was shared on the continuous use of arbitrary detention against journalists, lawyers, political workers, human rights defenders and individuals expressing the freedom of opinion. Many civil society groups welcomed the report of the Chair-Rapporteur and urged States to abolish legislation criminalising the spread of disinformation, and to immediately release those detained under such laws. NGOs emphasised that human rights must be protected and promoted, even in situations of pandemic.
The Chair-Rapporteur concluded the discussion by encouraging States to implement recommendations on arbitrary detention at a national level by allocating appropriate resources and creating participative spaces for civil society. Ms Gopalan emphasised that the undertaking by the Working Group was not sustainable without the support of Member States and pleaded to States to fully fund the work of all Special Procedure mandate holders to enable them to fully exercise their mandates.
Geneva International Centre for Justice (GICJ) send thanks to the Chair-Rapporteur for her report on arbitrary detention. GICJ remains extremely concerned about the persistence of States to practice arbitrary detention and the low response to communications and recommendations made by the Working Group. We reiterate the great importance of dealing with arbitrary detention and violations of human rights by adopting the recommendations made by the Working Group and other Human Rights mechanisms. Lastly, GICJ joins the Chair-Rapporteur to urge and call on Member States and the United Nations to give full support by providing them with resources such as funds in order for the group to effectively and sustainably exercise their mandates to a maximum.
Background
The Working Group (WG) on Arbitrary Detention was established by the Commission on Human Rights in its resolution 1991/42. It was mandated to oversee the investigation of cases of alleged arbitrary deprivation of liberty according to the standards set forth in the Universal Declaration of Human Rights and relevant international instruments accepted by the States concerned. The mandate of the Working Group was clarified and extended by the Commission in its resolution 1997/50 to cover the issue of affirmative custody of asylum-seekers and immigrants. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The mandate of the WG was most recently extended for a three-year period in Council resolution 51/8 of 6 October 2022.
During the period from the 1st of January to the 31st of April 2022, the WG was composed of Mariam Estrada-Castillo (Ecuador) Priya Gopalan (Malaysia), Mumba Malila (Zambia), Elina Steinerte (Latvia) and Leigh Toomey (Australia). From the 1st of May to the 31st of October 2022, the Working Group was composed of Mariam Estrada-Castillo (Ecuador), Matthew Gillet (New Zealand), Priya Gopalan (Malaysia), Mumba Malila (Zambia), and Elina Steinerte (Latvia). As of the 1st of November 2022, the Working Group was composed of Mariam Estrada-Castillo (Ecuador) Matthew Gillet (New Zealand), Priya Gopalan (Malaysia), Mumba Malila (Zambia) and Ganna Yudkivska (Ukraine).
During the period from the 1st of January to the 31st of December 2022, the WG held its ninety-third, ninety-fourth and ninety-fifth sessions. In order to facilitate outreach and information-sharing, the WG met with a group of non-governmental organisations during its ninety-fourth session to gather information on issues relating to arbitrary deprivation of liberty and to enhance civil society’s understanding of the Working Group’s methods of work and its operation.
Report of Chair-Rapporteur of the Working Group on Arbitrary Detention
Report A/HRC/54/51 on arbitrary detention
The Chair-Rapporteur extended her gratitude to those countries that continue to adopt the WG’s recommendations and comment on their opinions. The report mostly highlighted some of the positive developments as well as challenges they encountered while conducting their county visits. The report focused on the Working Group’s visit to Botswana from the 4th to the 15th of July 2022, its first official visit to the country. Additionally, , the Working Group also paid a visit to Mongolia from the 3rd to the 14th of October 2022.
In the report, Ms. Gopalan mentioned that the WG examined the following issues: arbitrary detention and laws on spreading disinformation; arbitrary detention and the coronavirus disease (COVID-19) pandemic, and; deprivation of liberty of environmental human rights defenders.
In its visit to Botswana, the WG visited 19 institutions of deprivation of liberty in and outside the capital and confidentially interviewed over 100 persons deprived of their liberty. The WG commended certain developments made by Botswana, including the ratification of international human rights instruments; the expansion of the mandate of the Office of the Ombudsman; the development of a national human rights strategy and action; and the decriminalisation of consensual same-sex, among others.
However, the WG also observed challenges in the criminal system including: excessive length of pre-trial detention; the severity of punishments that Dikgosi (or chiefs) could impose; and lack of legal assistance in criminal cases, other than those involving capital punishment, among others. The Chair-Rapporteur, in the report said the WG further noted the lack of an effective diversion system for children in conflict with the law, poor detention conditions in most places of deprivation of liberty, and the bypassing of legal procedures by the Directorate of Intelligence and Security. It also observed challenges relating to detention in the context of health care. The WG extended appreciation to the Government of Botswana for the visit, which served as an important example for other countries.
From the 3rd to the 14th of October 2022, the Working Group visited Mongolia. It carried out both announced and unannounced visits to 21 facilities in Ulaanbaatar and to various facilities in Tuv Province. Ms. Gopalan confirmed that the WG interviewed around 65 persons deprived of their liberty and received immediate and unimpeded access to all places they wished to visit. The WG identified several notable positive developments: including the 2022 revision of the law on the National Human Rights Commission of Mongolia; the designation of a national preventative mechanism; and the adoption of the law of Mongolia on the legal status of human rights defenders, among others.
However, the Working Group also observed challenges in the criminal system, such as shortcomings in the implementation of the revised Criminal Procedure Code and the detention of persons in police custody. The WG also expressed concern regarding procedural guarantees and fair trial rights and was concerned at the lack of specialised courts for youth. Ms. Gopalan expressed gratitude to the Government for the visit and for its exemplary cooperation.
In its recommendations, the Working Group reiterated its call to States to continue to increase their cooperation with regard to their responses to regular communications, by reporting through the follow-up procedure on the implementation of the Working Group’s opinions (including on the provision of appropriate remedies and reparations to victims of arbitrary detention), and by providing positive responses to requests for country visits. It also urges States to refrain from using anti-disinformation legislation or vaguely worded or overly broad laws to prosecute individuals for the dissemination of information in the course of their work; not to arbitrarily detain individuals in the implementation of public health emergency measures; and to protect and empower environmental human rights defenders to participate in activities related to the protection and promotion of environmental human rights. Lastly, the WG urged States to provide adequate and predictable human resources in order to allow it to fulfil its mandate in an effective and sustainable manner. It called on States to heed the call by the United Nations High Commissioner for Human Rights to end arbitrary detention once and for all and release individuals arbitrarily detained.
Interactive Dialogue
The Delegate of Botswana, speaking as a country concerned, said this was the first official visit of the Working Group to Botswana, and it had enjoyed full and unimpeded access, visiting 18 institutions across the country of various types. Botswana was grateful for the constructive cooperation with the Government and stakeholders across all branches. She emphasised that Botswana had taken positive steps on the issue of deprivation of liberty by appearing before the Human Rights Committee, the Committee against Torture, and the Committee on Racial Discrimination. Most recently, in May 2023, Botswana participated in the fourth cycle of the Universal Periodic Review.
The delegate of Botswana further stated that the right to personal liberty and prohibition of unlawful detention is guaranteed in the Constitution. The right to be presumed innocent until proven guilty, the right to examine witnesses, and the right to have legal counsel were all ensured. She further highlighted that the laws of Botswana also protect against arbitrary detention and that these rights operate in customary courts, which form part of the dual legal system. The customary courts were subject to the Constitution- presiding officers are subject and required to comply with the laws of Botswana and are required to follow criminal legal procedure.
She concluded her statement by emphasising that the courts took the necessary steps to ensure that confession statements were only admitted if they had been properly obtained. Furthermore, the delegate stated that an accused person has the right to have their case to the common law courts. Botswana’s Government had put measures in place to ensure that the detention facilities complied with the United Nations rules on conditions for detainees. Lastly, on the issue of immigration, she said that asylum-seekers are housed in a centre whilst awaiting a decision on their application.
Mongolia, also speaking as a country concerned, said since the Working Group’s visit in October 2022, Mongolia has taken several important steps reflected in many of the recommendations. While the country has displayed tangible achievement on many of the issues, there was room for improvement. The delegate stated that Mongolia’s commitment to the promotion and protection of all human rights and freedoms is absolute and unwavering. She highlighted that the country has extended a standing invitation to all thematic Special Procedures and was privileged to have Margaret Satterthwaite, the UN Special Rapporteur on the Independence of Judges and Lawyers planning to visit Ulaanbaatar on November 2023
Through a video message, National Human Rights Commission of Mongolia said that for the past 30- years, the Parliament and Government had worked to improve the Criminal Procedure Code and has made significant progress in using arrest, detention and imprisonment as a last resort. In Mongolia, it is impossible to undertake an arrest without a judicial warrant. However, he highlighted that due to the statute’s ambiguity and operational capacity of the criminal justice systems, violations of the right to liberty and security of persons continue to occur. The National Human Rights Commission of Mongolia further outlined that the twenty-second status report submitted to Parliament reflected current human rights violations in Mongolia.
He concluded by stating that the Government has established a working group to draft a statute ready for submission to the legislature. Lastly, he agreed that the findings of the Working Group from the visit to Mongolia will significantly contribute to Mongolia’s implementation of the International Covenant on Civil and Political Rights.
The delegate of Honduras reaffirmed their commitment to strengthening human rights at the global level. The delegate reiterated their willingness to continue to implement transparency mechanisms and accountability as key pillars in combating impunity and corruption, which are also key aspects of combating arbitrary detention.
He stated that in 2023 they have put in structural changes to bring about this transformation through the following actions: [designing/implementing/putting] a strategy to deal with bottlenecks in the national penitentiary systems, ensuring accountability mechanisms working with key stakeholders at a high-level as well as the implementation of the national memory process in order to take proper account of grave human rights abuses and arbitrary detention in the course of the security doctrine applicable in the 1980s.
Lastly, the delegate of Honduras reaffirmed their commitment to work with governments and military states in order to safeguard basic freedoms and human rights, particularly for those who are most vulnerable.
The Egyptian delegate made some valid points when he pointed out that some Special Procedures continued to be used to target certain countries for political ends, and called upon the United Nations to examine carefully the validity of any complaints before notifying the State concerned, and called on Special Procedures to refrain from negative opinions unless they are backed up by facts. The delegate reaffirmed their willingness to engage in full cooperation with the WG in order to tackle the issue of arbitrary detention.
The Egyptian delegate further expressed their concern that traditional detention is deemed as arbitrary detention or painted as such. He concludes by emphasising that they stand ready to work with the Working Group.
The delegate of France also welcomed the report of the Working Group and supported their mandate. He alluded to the fact that arbitrary detention is being used as a tool to shrink civic space in far too many areas of the globe. He then recommended that there should be a strengthening of cooperation between States and the Working Group, in particular with regard to responses to communications. The delegate also highlighted that the ban on arbitrary detention was absolute and universal: no situation, even a public health situation, could justify this practice. Lastly, he remarked that detention of migrants in some countries was also a concern, and urged such countries to live up to their commitments and fully respect the human rights of migrants.
The USA delegate applauded Botswana and Mongolia’s efforts to address the issue of arbitrary detention and supported the WG’s mandate. The delegate spoke highly of Botswana’s ratification of human rights instruments and Mongolia’s adoption of amnesty laws. He further highlighted that they note the challenges that remain in dealing with arbitrary detention globally, ranging from the implementation of national strategies to the bypassing of legal proceedings of individuals in custody. Moreover, the USA urged all stakeholders to address detention used as a tool and called on them to support the efforts to deter arbitrary detention and ensure accountability. He concluded by posing a question to the panel inquired about the lessons and good practices from Botswana and Mongolia which other countries can adopt.
On the other hand, the Cuban delegate said all mandate holders should respect the sovereignty of countries, and uphold constructive dialogue and cooperation with States. He further urged the Working Group to work objectively and professionally in line with the Code of Conduct, which is an obligation for all Special Procedures that must not adopt opinions on cases in a pre-conceived manner and must take the communications of States into account. His conclusion was the rejection of the use of Special Procedures that were alien to human rights and counter to principles of the United Nations Charter.
The delegate of Lithuania, speaking on behalf of a group of countries, thanked the Working Group for the report and supported their mandate. However, the delegate said that they regret that arbitrary and unlawful detentions are continuously used by governments as a measure of intimidation, repression and punishment. He said that this violates the right to a fair trial and the obligation of States without due process. The delegate highlighted that journalists and media workers, civil society representatives, human rights defenders, and pro-democratic movements worked tirelessly to inform the broader public on various subjects. However, some authorities often misuse anti-disinformation laws to restrict freedom of opinion and expression and abuse legal systems to prosecute individuals for disseminating information in the course of their work.
The delegate further expressed their concern for the trend to prosecute media outlets and journalists for allegedly spreading false or fabricated information. Such policies distorted facts and deprived the public from getting a complete picture of the political situation in the country. He highlighted the issue of Ukrainians being held incommunicado by the Russians forces/military/etc and asked the Chair-Rapporteur about what measures could be taken by the Human Rights mechanisms to help release victims detained by Russian forces in Ukraine and provide them with effective remedies.
The Nordic and Baltic countries commended and welcomed the extension of the WG’s mandate for an additional 3 years. The delegate said that they have grave concerns about the continuing rising of arbitrary detention of human rights defenders, journalists, political opponents and activists for exercising their rights to freedom of opinion, expression and peaceful assembly. Moreover, the Nordic and Baltic countries condemned the criminalisation of the work of environmental human rights defenders, including women and Indigenous peoples. In a range of countries, they agreed with the Working Group’s recommendations in this regard and called on States to take all necessary measures to protect and empower environmental human rights defenders.
The delegate of the European Union also welcomed the Working Group’s report and its presentation. The delegate first paid tribute, particularly to the 20 cases released in 2022 regarding arbitrary detention. However, the delegate noted the growing persistence of the practice of arbitrary detention in violation of all citizens to participate in political and public life. The delegate emphasised strong condemnation of the use of arbitrary detention, including secret detention as a tool for political repression in order to suppress the voice of human rights defenders. The delegate closed her statement by highlighting that they share concern with the Working Group of several States' low response rate to the recommendations made by the WG, and called upon them on fully cooperate and consider those recommendations.
A number of civil society organisations were subsequently given the floor to comment on the report’s findings. Many NGOs welcomed the report of the Chair-Rapporteur and extended their gratitude for the Working Group’s commitment to fighting and eradicating arbitrary detention. However, a common concern was shared over the detention of political; workers, lawyers, human rights defenders as well as persons accused of blasphemy. Many agreed that arbitrary detention violated a number of rights, including the rights to life, liberty, and the right to a speedy trial. Arbitrary detention was perceived as a practice used against many innocent people, and this was a huge concern to many speakers.
The civil society organisations further condemned the detention of people for months and years without even being charged witha crime or having access to legal assistance. It was noted that the inhumane and unfair conditions of detention further affected the basic rights. They reiterated that detention of any person must be conducted with due process of law, and the rights of individuals to challenge their detention must be upheld. Lastly, many stood together and reaffirmed that human rights must be protected and promoted.x
Concluding Remarks
The Chair-Rapporteur thanked all parties for their interventions. Regarding arbitrary detention and the COVID-19 pandemic, the Working Group cautioned against the use of health emergencies to implement far-reaching anti-disinformation to curtail freedom of opinion or expression. Despite the challenges posed by the pandemic, she said that Governments needed to balance responding to disease with their obligations to uphold human rights. The Working Group recalled its deliberation number 11 which set out guidance on the prevention of liberty in the context of public health emergencies. Ms. Gopalan highlighted the commitment of the Working Group to implement its mandate. This was emphasised by conducting country visits, issuing recommendations, facilitating numerous intergovernmental and regional events, and exploring thematic issues preventing arbitrary detention, among other measures
Moreover, she encouraged States to implement recommendations on arbitrary detention at a national level by allocating appropriate resources and creating participative spaces for civil society. All States were called on to accept invitations to conduct official visits. Chair-Rapporteur emphasised that the Working Group’s work is not sustainable without the support of Member States. She highlighted that they need States to fully fund the work of all Special Procedures mandate holders, and to enable them to fully exercise their mandates.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) commends the significant role the Working Group play in the promotion and protection of human rights by fighting arbitrary detention. GICJ fully extends its gratitude and applauds the Working Group’s provisions of recommendations, opinions and conduction of country visits to ensure that the world eradicates the practice of arbitrary detention. GICJ reiterates and calls upon States to also adopt and effectively implement some of the recommendations provided by the Working Group so that they can strengthen their systems and deal with the bottlenecks as well as shortcomings.
It is important that States recognise the detrimental impact arbitrary detention has on individuals and the international community at large. We urge States to refrain from arbitrarily detaining human rights defenders, political workers and activists, lawyers and individuals with opposition for expressing their freedom of opinions and for always doing their work. It is vital that governments engage with domestic and international mechanisms to create strong remedies and methods of dealing with arbitrary detention.
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