1.1 The impetus for the book

My motivations to write this book stem in part from my having left in 2018 my work at the nongovernmental organisation REDRESS after what then felt like a lifetime of 17 years. I was trying to unpack and process what I learnt from all those I worked with – my colleagues, our partners and, of course, our clients – all of them survivors of torture, and the bulk of them having been arbitrarily detained, many for extended periods of time. The subject matter shaped my work over many years representing and advocating on behalf of persons detained in different parts of the world for reasons including their human rights advocacy, connections to certain political or other movements, the persecution they faced in their home countries, and the policies of deterrence put in place by countries attempting to stem the flow of migrants or respond to the threats of terrorism. The trauma of arbitrary detention and torture, and the heavy emotions associated with pursuing remedies, was at the heart of what we did, why we did it, who we did it with, and what it meant to survivors. It framed why we kept going, how we approached the barriers we faced and the motivation we brought to the advocacy work and the litigation. My decision to concentrate on arbitrary detention in this book is because it was at the heart of so many of the cases I encountered and was so central to the intense and continuing suffering of former detainees. Added to this was my belief from the world around me that the scourge of detention, including arbitrary detention, was being normalised by a growing number of governments for increasingly nefarious reasons.

The other impetus stems from my experience of the COVID-19 lockdowns. Early in the pandemic, I co-edited a collection of reflections on COVID in which I began to think through the relationship between pandemics and detention.¹ These early reflections helped to hone my thinking on exceptionalities, arbitrariness, vulnerabilities and the placement of law, which have become crucial themes explored in the book.

1.2 Some of the themes explored in the book

We live in a world where there is pressure to conform to the will of the ordinary and the constraints of the powerful. And we are conditioned to understand that we will avoid complication when we manage to align our thinking and our conduct in such ways. For many people, however, conformity is impossible, even nonsensical; the difference that they embody means they are not even permitted to align with the narrative of the powerful. For others, conformity is simply not desirable. As I explore in this book, arbitrary detention becomes a tool of the powerful to exert social control on those who do not conform to the rules of the imagined society. It is the ultimate abuse of power and denial of humanity to constrain personal liberty, to enclose or encage as a form of domination, to discriminate against or to force people to conform to imagined standards. This abuse of power is explored in this book, conceptually, psychologically and legally.

The book examines how decisions to detain or to maintain in detention are taken, what motivates those decisions, and the relative weight of the laws and associated principles that can be used to advocate for release. As such, the book is less focused on the conditions of detention or with the scenario of criminal sentencing, though both subject areas are touched upon to the extent that they are relevant to analyses of arbitrary detention. The focus of the book is on the 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.

I argue that forms of marginalisation and other arbitrary factors influence which individuals will be detained, when, for how long and in what conditions. Policies of securitisation, regimes of exception, and criminalisation have exacerbated these arbitrary distinctions given their propensity to target “otherness”, even though there is nothing exceptional about “otherness”. How these policies are applied, and their impact on individuals and communities, depends on the underlying political values and goals at stake, which differ between countries and over time.

The book also explores how arbitrary detention has become normalised. I demonstrate that arbitrary detention is not ultimately or mainly about occasional departures from lawful detention affecting random persons in random places. Arbitrary detention has become an insidious policy tool used purposively by governments to foster divisions and to enforce hostility against socially marginalised groups who I classify in this book as: the “unseen” (those marginalised on account of their destitution and/or extreme social needs); the “reviled and resented” (the recipients of racist, xenophobic and discriminatory attacks); and the “undeserving” (refugees and other migrants).² Arbitrary detention is also employed to secure international relations advantages; to quash dissent or stifle pluralist debates within society; and to pursue other policy objectives. What we see progressively is the application of entire systems of arbitrary detention, countenanced by laws and promoted by states and institutions.

Arbitrary detention is a malleable concept. To a certain extent malleability is needed. If concepts are too fixed, states and others would work around that fixity and operate within the zones of exception. But the elasticity means that the concept is shaped to suit political objectives, and those objectives have the tendency to change with time. In the legal sense I am looking at the arbitrary application of law but also law that is inherently arbitrary. The imperative to “conceptualise” arbitrary detention stems from the need to know what the concept means to the extent that it is clear enough to know. It also serves to clarify how the concept is being construed, applied and, at times, manipulated, and the consequences of such manipulations.

Human rights law is the principal lens through which many of the problems and potential solutions in this book are presented. But admittedly it is an uneasy and often unhelpful lens. International human rights courts and treaty bodies have had only minimal success in clawing back against the tendencies of securitisation and criminalisation that often foster arbitrary detention, particularly in those areas of detention perceived to raise the greatest concerns about sovereignty, national identity and national security. And, instead of reversing the processes of social exclusion, human rights law has become progressively less revolutionary and more inclined to legitimise and reinforce the status quo. This is particularly evident in areas involving non-citizens, racialised communities and minority groups, and responses to security threats. Human rights bodies have been robust in withstanding the direct pressure from states to change major course by watering down human rights standards in areas states perceive to be fundamental to their national interests. Yet, these bodies have been less adept at resisting (and they have not always resisted) the more subtle pressures to widen flexibilities and contextualisation into their decision-making processes, or in some cases to fill in what are porous, nuanced standards with state-friendly moderations, in some cases leading to the same result of lowered standards. Thus, for the most contentious issues, human rights law risks becoming the apologist, the language and procedure of denial. The challenge of human rights law to address arbitrary detention thus serves as a mirror through which we can see these wider tendencies.

1.3 The trajectory

The book has two parts. Part I – Theorising and Conceptualising “Arbitrariness” – provides the theoretical framework for the book. Chapter 2 interrogates the multiple meanings of “arbitrariness” and considers how these meanings engage with the definition of arbitrary detention. Chapter 3 then reviews and analyses the linkages between arbitrary detention and notions of harm and the severity of harm. It posits that the “arbitrariness” in arbitrary detention, because of the feelings of helplessness it engenders, is itself capable of producing harm that attains the seriousness of torture and other forms of cruel, inhuman, or degrading treatment.

Part II – The Law and Practice of Arbitrary Detention in Context – explores scenarios of arbitrary detention that are particularly pervasive and problematic. Chapter 4 focuses on enforcing hostility and social control. It analyses how discrimination, xenophobia and marginalisation fuel detention policies and contribute to arbitrary detention. It explores how detention is used to deter or suppress segments of society and fuels and is fuelled by discrimination, poverty and social exclusion. Sometimes, detention stems from policies of over-criminalisation; in other cases, non-criminal confinement is used to remove individuals from circulating in privileged spaces as a form of social cleansing. Chapter 5 considers the detention of political opponents, human rights activists and members of social movements. It explores the methods of criminalisation of defenders and their organisations and associated judicial harassment that lead to arbitrary detention and the untenable linkages often made by governments between legitimate expressions of dissent, resisting authority and attacks against the security of the state. Chapter 6 considers how states of emergency and other regimes of exception contribute to arbitrary detention on an individual and mass scale. It analyses the law on emergencies and tensions with the right to liberty and security of the person. The chapter explores how emergency legislation put in place in different countries has led to arbitrary and often indefinite detention, through vague or overly broadly worded provisions, or simply the misuse of law for ulterior purposes. Chapter 7 considers the detentions of dual and foreign nationals as a form of state hostage-taking and interrogates the (often limited) role of states of nationality in responding to such scenarios. Chapter 8 explores the circumstances of persons deprived of their liberty in the context of pandemics, and of COVID-19 in particular. The chapter considers the extent to which pandemics impact upon the exceptional character of detention. It also evaluates how governments, specialist agencies and courts have grappled with the legal, ethical and public health issues relevant to considerations about how pandemics impact upon the law on detention.

The book concludes with an analysis of the challenges of the law, and human rights law in particular, to address the phenomenon of arbitrary detention. It identifies areas where the law is inadequate or unclear to effectively regulate the use of detention and to avoid its use as an arbitrary tool to abuse power. There is a need to recognise the factors contributing to these trends, but also to acknowledge the importance of finding ways in which to address the lacunae. The book therefore aims to encourage reflection about the best ways to address the gaps with the law and the practice. At its heart, the book is not just a cogent call for greater respect for the rule of law, but a detailed explanation as to why the law itself must sometimes be challenged.