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This chapter considers the connection between “arbitrariness” and harm, positing that the “arbitrariness” of arbitrary detention results in harms that can, in certain circumstances, amount to torture or other prohibited ill-treatment. To arrive at this conclusion, the chapter reviews the findings of scientific studies of harms experienced by current and former detainees in arbitrary situations of detention undertaken by psychologists and others. By attaching arbitrary detention to the torture taboo, the chapter undermines the argument that the industrial-scale arbitrary detentions that have become commonplace in the name of controlling borders and strengthening national security are somehow justifiable, because some of these detentions may constitute torture, and torture is never justifiable.

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Power, Punishment and Control
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Available Open Access digitally under CC-BY-NC-ND licence

This book examines what happens when states and other authorities use detention to abuse their power, deter dissent and maintain social hierarchies.

Written by an author with decades of practical experience in the human rights field, the book examines a variety of scenarios where individuals are unlawfully detained in violation of their most basic rights to personal liberty and exposes the many fallacies associated with arbitrary detention.

Proposing solutions for future policy to scrutinise processes, this is a call for greater respect for the rule of law and human rights.

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This chapter provides the overall conclusions for the book.

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This chapter considers the circumstances of persons deprived of their liberty in the context of epidemics, pandemics and other major health emergencies.

The chapter analyses how governments, specialist agencies and courts have grappled with the legal, ethical and public health consequences associated with detention and infectious disease, looking particularly at the recent experience of COVID-19. Despite the heightened health risks for detainees associated with pandemics, often those who are most vulnerable because they have the least agency and voice are placed at even greater risk of harm. The chapter also considers whether the experience of pandemics has helped to clarify understandings of “arbitrariness”.

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This chapter considers the phenomenon of states arbitrarily detaining dual or foreign nationals with a view to exerting pressure on their (other) state of nationality. It provides an overview of these detentions, focusing on some of the countries that have been most involved. It explains why the phenomenon constitutes not only arbitrary detention, but also the crime of hostage-taking. As the detaining state is seeking to obtain some kind of leverage from the state of nationality, the act also constitutes unlawful coercion, which breaches the fundamental international law principle of non-intervention.

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The chapter considers the different contexts in which arbitrary detention is used to suppress dissent, identifying and analysing trends and patterns. It then considers the main gaps in the law that fuel the practice. At times the law simply accommodates and upholds governments’ efforts to criminalise, securitise or pathologise dissent, whereas occasionally, even if rarely, the law shows that it is capable to help “de-securitise” issues back to a more normal status.

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This chapter explores the role of detention as a method to enforce hostility and social control. It focuses on three routes to detention: criminalisation, pathologisation and deterrence. These methods are probed in relation to how they impact on different typologies of marginalisation: (1) the “unseen” (those marginalised in neoliberal societies on account of their destitution and/or extreme social needs); (2) the “reviled and resented” (the recipients of racist, xenophobic and/or discriminatory attacks); and (3) the “undeserving” (refugees and other migrants). The chapter considers the efficacy of the legal strategies adopted to combat the arbitrary detention these groups experience and identifies the need for more systemic approaches.

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This chapter provides an overview of the themes and concepts dealt with in the book. It explains the impetus for the book and takes the reader through the trajectory of the book from start to finish.

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Author:

This book examines what happens when states and other authorities use detention to abuse their power, deter dissent and maintain social hierarchies. Written by an author with decades of practical experience in the human rights field, the book examines a variety of scenarios where individuals are unlawfully detained in violation of their most basic rights to personal liberty and exposes the many fallacies associated with arbitrary detention. There is something particular about detention that is arbitrary. It is the ultimate abuse of power and denial of humanity to constrain personal liberty, to enclose or encage without clear justification. This particularity is explored in the book, conceptually, psychologically and legally. In an effort to explain the gravity of arbitrary detention, the book examines the particular role of the state and its officials – those who have the responsibility to protect individuals from the arbitrary exercise of power – in overseeing and implementing a system in which arbitrary detention is not only tolerated but at times pursued as part of state policy. It also explores the long-term impacts and consequences of arbitrary detention on the person, family and community. The book identifies areas where the law is inadequate or unclear to regulate effectively the use of detention and to avoid its use as an arbitrary tool to abuse power or as a form of social control. Proposing solutions for future policy to scrutinise processes, this is a call for greater respect for the rule of law and human rights.

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This chapter considers the meaning of “arbitrary” in arbitrary detention by explaining the philosophical, sociological and legal underpinnings of the concept. It explores how the concept of “arbitrary” has been co-opted by the law, the many usages of “arbitrary” in law, the principles of the rule of law and procedural fairness. This is then followed by an examination of “arbitrariness” in international human rights law and, more particularly, the human rights prohibition of “arbitrary detention”.

Open access