Indefinite detention
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The article is written by Shreya Pandey, from Banasthali University, Jaipur. The article analyzes the effects of indefinite incarceration upon the detained persons and its connection with human rights.

Introduction

Indefinite incarceration means confining or detaining any person without following procedures of law by the government or law enforcement authorities. Indefinite incarceration happens when a person is detained without any trial merely on the basis of suspicion. Such incarceration or detention is for an indefinite time period where the detained person has no knowledge till when he will have to live such a life. When a person does not know about his future and is detained for no definite time period then it feels like a death sentence given to any person without any trial and without following any due procedure of law. Any person who is an asylum-seeker or a suspected terrorist can be detained indefinitely in certain countries. Such persons do not know till when they will be detained and the suspected ones may either have committed any crime or no matter they are innocent they will be kept in detention. This system is barbaric and detention without trial for the suspected terrorists will be in violation of the constitution as well as human rights. The Government or law-enforcement agency detains any person who is suspected to be a terrorist, enemy combatants, common criminals held in pre-trial detention, and those persons who are held as security risks. Certain other persons such as asylum-seekers, undocumented migrants, those who are awaiting deportation, and persons under psychiatric detention are also indefinitely detained without trial. Such persons are protected through municipal as well as international law but still, their situation is pathetic. The government keeps such people under detention by giving various reasons to justify its act that such detention is made due to “national security”, “state of emergency”, “illegal migration”, and other extraordinary situations.

Laws protecting persons under indefinite detention

Both municipal and international laws protect a person’s liberty and right to life. Both the laws provide for following the procedure of trial before keeping any person in detention. Habeas corpus is a writ that provides protection to those persons who are illegally detained. Hard laws such as statutes and treaties and soft laws such as resolutions and declarations provide protection to illegally detained persons. 

International laws

In the Universal Declaration of Human Rights, under Article 9 it is stated that “No one shall be subjected to arbitrary arrest, detention, or exile.” 

The International Covenant on Civil and Political Rights (ICCPR) states under Article 9 para 1 that “Everyone has a 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.” The UNHRC stated that the detention that is initially legal can become “arbitrary” if it is unreasonably prolonged or when it is not subjected to periodic review. It is applicable to all persons under detention whether under criminal detention like terrorists, etc, or administrative detention like asylum-seekers. Article 14 of the ICCPR guarantees a prompt trial before a competent and impartial tribunal. Article 7 and Article 10 prohibits torture and inhuman or degrading treatment and provides that during detention humane treatment must be given to the prisoners. Article 24 of ICCPR ensures special measures of protection to children. Torture in indefinite detention is in violation of international law. Torture and other cruel, inhuman, or degrading treatment are in violation of the United Nations Convention. International Committee of the Red Cross observed that due to inhumane and cruel treatment, it deteriorates psychological condition which leads to a high number of suicide attempts. Under Article 118 of the Third Geneva Convention states that the prisoners of war can’t be detained indefinitely and the prisoners of war shall be released and repatriated without delay after the cessation of active cessation without any delay. Article 5 of the Third Geneva Convention states that whenever there is any doubt as to whether any person who is in the hands of the enemy state, has committed any belligerent act, then that person should be protected by the Convention till a competent court decides upon that matter.

Regional laws   

Article 5 of the European Convention on Human Rights and Fundamental Freedoms provides that every person has the right to liberty and live a secure life and no one shall be deprived of the same “except in accordance with the procedure prescribed by law”. The Article further states that when a person is arrested or detained and deprived of his liberty then he is entitled to go before a court to check the lawfulness of such arrest or detention and such proceedings shall be speedily done so if the arrest or detention is found out to be illegal then he is released as soon as possible. 

Article 7 of the American Convention on Human Rights states that it is the right of every person to have personal liberty and security and no one should be deprived of the same except by procedure established by law. It further states that no one should be arbitrarily arrested or detained and if any person is detained or arrested then he is entitled to move to a competent court to check its legality and if it is found illegal then that person should be released. 

Article 6 of the African Charter of Human’s and People’s Rights prohibits arbitrary arrest or detention. It protects every individual’s liberty and life. 

Redress mechanism

Individual complaint procedure 

An individual can move before the World Court individually for protection of its liberty and security against illegal arrest or detention. He can not move to the International Court of Justice as an individual has no standing before it. The universal organs that can entertain individual petitions are the Human Rights Committee(HRC), Optional Protocol to the ICCPR, and the Committee established under Article 22 of the Convention against torture. The United States and the United Kingdom do not recognize individual complaint procedures. If any individual seeks to get a remedy under the Optional protocol then he has to first exhaust all of his domestic remedies before approaching. While it is not mandatory to do so while bringing the case before the Committee against torture. An individual complaint can be filed by any person before the European Court of Human Rights at Strasbourg who falls under the jurisdiction of member states of the European Council. Any individual who is under the jurisdiction of member states of the Organization of American States may file an individual complaint case before the Inter-American Commission on Human Rights in Washington DC. Similarly, in the African regional system, an individual can file a complaint before the African Commission on Human and People’s Rights at Banjul, the Gambia, which falls under the jurisdiction of the member state of the African Charter.  

While filing a complaint, an individual may also request to get interim measures for safeguarding himself from irreparable harm under Rule 86 of Rules of procedure of Human Rights Committee or under Rule 114 of Rules of procedure of Committee against Torture. The motive behind the interim measures would be to prevent the State from causing irreparable harm to the individual. 

Inter-State complaint procedure

Any state can file a complaint against illegal detention before the international tribunal after fulfilling admissibility criteria. Since illegal detention is a grave violation of human rights therefore it is subject to inter-State complaints. Article 36 of the Statute of the International Court of Justice states that the ICJ can accept the case referred by the state when it recognizes the Court’s jurisdiction upon them. Any State that has recognized the competence of itself by the Human Rights Committee to investigate and adjudicate may file a complaint against any other State who has also recognized the same under Article 41 of ICCPR. A State can file a complaint against another State under Article 21 of the Convention Against Torture when the complaining state and the State against which complaint is initiated has recognized the competence of the Committee against torture to investigate and adjudicate upon the case. Under Article 41 of the Statute of the International Court of Justice, any State could file for interim measures of protection.

Remedies available to the victims

The main remedy that is available to the victims of indefinite detention is the immediate release of the victim. The provisions relating to the release of the victim is provided under many international as well as regional human right laws. The other remedy that the victim can get along with the release is compensation. Article 9 para 5 of the ICCPR states that the person who has been unlawfully arrested or detained is entitled to compensation. Article 5 of the European Convention provides compensation to the victim of illegal detention or arrest. Article 50 provides for just satisfaction to the injured party who has been arrested or detained by the government in contravention with the provisions of this Convention. Under Article 10 of the American Convention of Human Rights, it is stated that the person against whom the judgment that was made was a miscarriage of justice then that person is entitled to be compensated. Thus, the remedies that are available to the victims of illegal arrest or detention are immediate release and compensation.

Recommendation

  1. There must be a balance of rights in case of detention on the basis of national security.
  2. There must not be any compromise with the fundamental rights and freedoms of the individuals.
  3. Strategies must be so applied that it does not deny the human dignity of future immigrants in order to prevent illegal immigration.
  4. The international community should deny indefinite detention in whatever context.
  5. The victim must demand reparation of its rights if he is illegally arrested or detained. Certain conventions provide for the protection and compensation to the victims so it is the duty of the victims to demand the same.
  6. Any excuse as to neither release nor prosecute a class of terrorist group that is too dangerous should be held groundless. 
  7. Any long-term imprisonment without charge or trial should be held as illegal detention.
  8. The federal criminal courts and federal prisons can also be useful while dealing with international terrorism cases. 
  9. No authority shall be empowered to order indefinite detention to any person without charge or trial merely on the basis of an assumption that the person is dangerous.
  10. If any evidence is received by using force or coercion on the victim then that evidence shall not be admissible.
  11. The process of trial of the persons under indefinite detention shall be according to the Constitution. A long list of procedural safeguards would not satisfy the requirements of the Constitution.
  12. The government and law enforcement agency shall understand that the indefinite detention is unconstitutional if it has been done without following the due process of law by making a charge or trial. So the government should not escape its liability on the basis that any authority such as the President has given authorization for the same. 

Conclusion

State governments and law enforcement agencies arrest or detain persons on certain assumptions that may sometimes prove to be wrong. However, the person who was detained due to assumption has no way to seek justice for itself as there are no trial procedures done during detention. This violates its individual right of liberty and fundamental human rights. Although there are provisions mentioned in many Conventions still, many victims are kept in illegal detention without proper trial procedures. There is a need to enact certain such legislation that would protect every individual’s right against illegal detention so that no State could arbitrarily arrest or detain any person for its own purpose upon its assumptions.

Reference


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