Arbitrary Detention

Arbitrary detention is the violation of the right to liberty. It is defined as the arrest and deprivation of liberty of a person outside of the confines of nationally recognized laws or international standards. International treaties may be implored to guarantee the right to liberty if national laws protect the individual in an incomplete or partial manner.

Detention may be illegal without being arbitrary and vice-versa. Illegality simply means that the law has not be complied with, whereas arbitrary refers to the inappropriate, unjust, unforeseeable or disproportionate nature of the detention.

Arbitrary detention exposes the victim to more human rights violations since they are deprived of means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhuman or degrading treatment, etc.

The right to personal liberty is defined by Article 9 of the International Covenant on Civil and Political Rights, which outlines the conditions that render detention arbitrary, especially when:

• The grounds for the arrest are illegal
• The victim was not informed of the reasons for the arrest
• The procedural rights of the victim were not respected
• The victim was not brought before a judge within a reasonable amount of time

In certain cases, arbitrary detention can be considered as a war crime (Article 8 of the Rome Statute), a crime against humanity (Article 7 of the Rome Statute) or a crime of genocide. During a period of conflict or tensions, arbitrary detention can become a large-scale political tool of intimidation, often used in combination with other violations, such as the suppression of individual liberties, extrajudicial executions, enforced disappearances etc. TRIAL International also intervenes in cases of arbitrary detention which take place in the context of generalized suppression, especially when human rights defenders are targeted by such practices.

TRIAL International, in collaboration with local lawyers, supports victims in their pursuit of justice on a national and supranational level. In fact, it is relatively rare that victims of arbitrary detention and their loved ones obtain justice in their own countries, since the crime often occurs in a climate of persecution. It is therefore necessary that TRIAL International also accompanies the victims through regional or international legal procedures. The NGO files complaints regarding arbitrary detention to the following institutions:

• The United Nations Working Group on Arbitrary Detention
• United Nations Human Rights Committee
• European Court of Human Rights
• African Commission of Human and People’s Rights