4: Enforcing Hostility and Social Control

Author:

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.

4.1 Introduction

This chapter explores the role of detention as a method to enforce hostility and social control. It focuses on three methods of containment or routes to detention: criminalisation, pathologisation and deterrence. These methods are probed in relation to how they impact on 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” (those subjected to racist, xenophobic, and/or discriminatory attacks); and (3) the “undeserving” (refugees and other migrants).

These typologies, which are fluid and often overlapping, may appear provocative to the reader, unhelpful or indeed overly blunt descriptors. However, I use them to underscore the role of labels in the process of “othering” the individuals and groups concerned. The labels also set the stage for what Foucault refers to as an understanding of punishment as political tactic, as a mode to change behaviour or ‘technology of power’,1 all of which is a study in the promotion of conformity. This technology as discipline is applied to privilege certain behaviours and to make others more marginal.

Who does the labelling, who falls within the classifications and the classifications themselves, depend on the social context in a given place and time. Which groups are subjected to arbitrary treatment may also change over time depending on class mobility, shifting social attitudes and governments’ wavering commitment to eradicating discrimination.

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. There is a constant tension in the chapter about the role and placement of the law and its relationship to broader notions of justice. We can see how the law is being used, and even co-opted, to justify the state of exception, to give credence to it, and underpin what is being excepted. As will be explored, theorists continue to debate to what extent the exception is in the service of the law, regulated, framed and tempered by the law, or whether it is the law itself that serves the exception, paving the way for the exception to ultimately overtake the law. Some might posit that this overtaking has already happened, and we are simply in a phase of damage control.

4.2 Agamben and the theorisation of containment

The marginalised and excluded groups in this chapter’s “othering” remind of Agamben’s homo sacer. They are prevented from benefiting from the protection of the law, but at the same time the state retains biopolitical control over them.2 They are ‘stripped of political and legal attributes, whose very existence is a sign of, and countersign to, the sovereign’s bloating potency’.3 Agamben’s use of the homo sacer and ‘biopolitics’ in rooted in his sense of the state of exception which, he claims, has become ‘the dominant paradigm of government in contemporary politics’.4

Agamben’s theories are helpful when exploring and problematising what happens in zones of exception or exclusion. His framing of the banning by the sovereign of subjects within its jurisdiction but outside its protection or sense of political obligation, an act that rises in importance during a state of exception, serves the purpose of labelling, signalling and constructing – as enemy, degenerate, criminal and outsider. It is analogous to the enactment of Butler’s sinister vision of ‘the monopoly of the state on power and violence’, which afford security ‘to those defending national and ethnic purity, those who oppose Muslims and migrants from North Africa and the Middle East on the basis of their faith (which constitutes discrimination) or a toxic image that constitutes them as pure menace, threatening violence to institutions of white dominance’.5 It is also symptomatic of Butler’s notion of the denial of ‘grievability’ for certain marginalised groups,6 and those who, according to Arendt, do not possess the ‘right to have rights’.7

This tactic of labelling and excluding is also for Foucault, ‘a racism that society will direct against itself, against its own elements and its own products […] the internal racism of permanent purification, and it will become one of the basic dimensions of social normalization’.8 It legitimises the exclusion of these groups and foreshadows the violence meted out against them while serving to fuel the false binary, the fantasy of security and privilege that such exclusion brings for the fortunate groups that remain in the zone of inclusion. It is necessarily a top-down analysis because it operates by denying subjectivity to the “degenerates” below. And the act of categorisation meted out by those with power against the powerless or the less powerful is itself a form of violence for its capacity to co-opt the autonomy and agency of the subject.

The sites and spaces of detention have an important role in framing how confinement is perceived and experienced. The concentration camp is central to Agamben’s space of exception or zone of lawlessness. It is ‘the very paradigm of political space at the point at which politics becomes biopolitics and homo sacer is virtually confused with the citizen’.9 It is the site that allows for ‘juridical procedures and deployments of power by which human beings [were] completely deprived of their rights and prerogatives that no act committed against them could appear any longer as a crime’.10 The physical infrastructure and spatial conceptualisations of the “camp” have been considered widely11 and have been invoked in theoretical analyses related to the securitisation of detention,12 borders and border control.13

4.3 Methods of containment

There are at least three cross-cutting methods by which detention enforces hostility and social control.

4.3.1 Detention as criminalisation

Criminalisation is the process by which decisions are taken as to what acts and omissions to prohibit and sanction, which persons are charged and ultimately convicted of having contravened those prohibitions, and what sentences are applied from a range of permissible sanctions.14 I am here mainly concerned with the first aspect about what to prohibit and sanction. There are theories about what factors should underpin decisions about whether particular conduct should be made criminal or whether another type of sanction would be more appropriate or effective as a strategy to deter that conduct, discipline and/or rehabilitate the perpetrator(s), protect victims and would-be victims, and/or show societal contempt for the behaviour.15 These decisions involve considerations about what harm the conduct is causing and to whom, how serious the harm is (and what “seriousness” means in context), whether the public needs to be protected from the conduct and, if so, how best to ensure such protection, and whether there is a less restrictive means to deter the conduct and ensure public protection.16 They also involve conceptions about the relative “wrongfulness” of different acts, which injects a sense of morality or values into decision-making,17 which is unsurprising though highly subjective.

The decision to criminalise certain behaviours and not others involves inherent biases and subjective considerations that have differential impacts on individuals and groups depending upon socio-economic status, race, religion, national origin, citizenship status, gender and age, among other factors.18 These biases involve perspectives about what behaviours are most dangerous, who the society is and from whom it needs to be protected, and what degree of risk is acceptable within the society. Most societies recognise that criminalisation will not be an effective response to complex social problems and alternatives to criminalisation should be considered and discounted before deciding to make an act criminal – it is a last resort.19 However, seeing issues through the lens of social problems brings them to the fore of the society; solutions necessarily involve the community, and the social problems are part of the community. At least at a theoretical level, criminalisation justifies putting barriers between the community and the “criminals”. Thus, decisions about what responses should be taken do not only involve considerations of “effectiveness”, and what constitutes effectiveness is equally contingent on who one is and how one is situated in relation to the “imagined” society.

Criminalisation occurs when a government decides to enact criminal laws outlawing certain behaviours and to impose a sanction or penalty to address the violation of the laws enacted. At times, governments will criminalise behaviours that are not commonly associated with crimes, to register their disapproval of and to distance themselves from those behaviours. An example of this is the criminalisation of homelessness, loitering, trespassing and vagrancy, and/or other daily survival activities associated with living on the streets and other extreme forms of poverty. This neoliberal response to poverty includes the use of ‘ordinances relating to civic or anti-social behaviour, which regulate activities in public spaces and restrict options when it comes to sleeping, eating, drinking or washing oneself on the street’,20 and fosters ‘situations of absolute poverty that the system no longer seeks to solve, but rather just attempts to conceal, move, incarcerate or expel’.21 As Blagg and Anthony have noted in relation to the criminalisation of poverty-stricken indigenous populations, it ‘problematises the notion of deterrence because it assumes that there are ways that Indigenous people can avoid crimes when often they are criminalised for being themselves’.22

Criminalisation of “antisocial” conduct also results in reduced access to support, treatment and care, ultimately increasing vulnerabilities and harms.23 The same could be said for the criminalisation of conduct on religious or “moral” grounds, such as sex work and the procurement of abortions,24 or the possession or consumption of drugs for personal use,25 where the impact is to drive such conduct underground and make it more difficult for affected persons to seek help. Similarly, the criminalisation of migration and migrants exacerbates their vulnerability and makes them more likely to become victims of crime. The former UN Special Rapporteur on Migrants has noted in this respect:

[C]riminalizing irregular migrants for the offence of being in a country without adequate documentation makes all migrants, regardless of immigration status, vulnerable to potential racist or xenophobic acts. Societies quickly distort the particular situations of migrants, and associate them with criminality, including organized crime, drug trafficking, robbery or even terrorism.26

Criminalisation can also occur indirectly, when government policy impacts certain segments of society in such a way that they are more prone to commit certain crimes. An example of this is the removal of social safety nets and services to the point that persons and communities living precariously feel compelled to commit crimes to meet basic needs. Another example of indirect criminalisation is the removal of safe routes to enter a country so that desperate refugees and other migrants are compelled to seek entry through irregular and typically unauthorised means.

Also relevant to criminalisation is the way in which policing measures are applied that impacts differentially upon the susceptibility of marginalised groups to be charged with criminal offences, and how offences are pursued through the criminal justice system.27 In many countries, discriminatory practices mean that certain communities are more likely to be suspected of criminal behaviour, whether because they are profiled by the police or by the application of automated systems using biased data.28 In the UK, the Stephen Lawrence Inquiry report described the policing of the murder of Black teenager Stephen Lawrence as a systematic and ‘collective failure of the organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin’.29 In many countries, ethnic, racial and religious minorities, and indigenous peoples are significantly over-represented as defendants and detainees in criminal justice systems.30 Persons with disabilities, particularly those with intellectual or psychosocial disabilities, are overrepresented among homeless populations and also over-represented in the criminal justice system.31

Detention can be both a precursor to and an outcome of criminalisation. As a precursor, individuals and groups who experience marginalisation are more likely to be denied bail in the lead up to criminal trials. This is certainly the case with non-nationals, particularly those who are charged with offences related to their efforts to gain access. Winkler and Mayr in their 2023 study for Borderline Europe about the pre-trial detention of persons accused of people smuggling in Greece (which the Greek Ministry of Citizenship indicated involved 634 detainees as of February 2023), indicated:

According to the interviewed lawyers, pre-trial detention orders are routinely issued for third country nationals accused of smuggling, with little consideration for the specific circumstances of the case. This is consistent with other reports, which indicate that the mere lack of a fixed residence is often considered a decisive factor for ordering pre-trial detention – a characteristic that applies to everyone who is arrested upon arrival. Additionally, this research suggests that pretrial detention orders rarely include references to specific evidence or arguments presented by the defence.32

Money bail systems have a discriminatory effect on the poor,33 and on minority ethnic and racialised groups.34 The WGAD has found as much in the case of Marcos Antonio Aguilar-Rodríguez, a national from El Salvador who had relocated to the US where he started a family and claimed asylum. He was detained by immigration authorities for almost six years, because the “bail” was set so high that he was unable to pay it. According to the WGAD, ‘requiring the posting of excessively large bonds does not provide an alternative to detention to those who are detained. Moreover, the practice is discriminatory, as it disproportionately affects those of humble economic backgrounds.’35

Pre-trial detainees also have an increased incentive to quickly plead guilty to be released.36 This has a follow-on impact on the direction of trials and sentencing and compounds the impact of any further discrimination to be faced during the trial, judgment, and sentencing phases.37

Criminalisation policies that result in deprivations of liberty that do not serve a pressing social need are disproportionate to the societal benefits they are intended to engender, or that are selectively enforced in a discriminatory manner against marginalised persons or groups are arbitrary and will result in arbitrary detention.

4.3.2 Detention as pathologisation

Pathologisation is the process by which human traits are conceptualised as disorders that can be diagnosed and treated medically and therapeutically.38 Pathologisation is connected to what Brinkmann refers to as the ‘logics of diagnostic cultures’39 where the diagnosis serves to ensure that certain forms of suffering are followed up in a particular way. Yet, diagnoses, particularly those that involve mental health, are ‘invented modes of reasoning’40 that necessarily involve value judgments about the placement of the boundaries of “normality” and “disorder”. Diagnoses can move quickly from an analysis of discrete traits to the medicalisation of social norms and identities resulting in individuals, groups and/or entire communities being illegitimately pathologised as deviant or morally unacceptable.41 It has a more sinister, stigmatising and constraining impact. As Moncrieff explains, referring to the research of Coulter,42 ‘someone is said to be mad or mentally ill when their behaviour infringes social norms of intelligibility. What counts as intelligible, reasonable, or rational is determined by unwritten rules of conduct that are constituted by social groups.’43

Detention as pathologisation is thus the process by which certain persons or groups are diagnosed as unwell or unsound and in need of treatment, discipline, rehabilitation, or some other form of therapeutic intervention; and the subsequent decision to require those persons to have those needs met in a closed facility. Indeed, it is both the result of failed community inclusion and a justification of that failure by way of the diagnosis that serves as the tool to banish and exclude. The classic example of this is the compulsory detention of persons said to be of ‘unsound mind’,44 where a person’s mental disability is used to “protect” them from criminal proceedings, but, in the process, denies them agency and sometimes results in far more punitive outcomes.45 Regardless of whether this medical containment or treatment imperative is understood factually or metaphorically, it introduces a new hierarchy and is an important part of the legitimisation of the logic of detention, with the clinicians using the nomenclature of care to decide not only upon the boundaries of sickness and health, but also on the imposition of the cure, which can be highly problematic and put extremely vulnerable people at risk.

The pathologisation has extended to persons who are deemed to fall outside societal morals and standards of acceptable conduct. An example of this is the detention of ostracised women and girls in “social rehabilitation” centres for the apparent transgression of moral codes.46 In Ireland for instance, women and girls were involuntarily confined (detained) in the Magdalene laundries, children’s institutions, and mother and baby homes, including unmarried mothers who were regarded as deviant for having engaged in, or having been susceptible to, inappropriate sexual behaviour. These convents and homes were stigmatising and cruel places of detention designed to discipline women for subverting gender norms and to encourage them to conform.47 Another example is the compulsory detention of persons with drug addictions (largely perceived as a moral failing48) to serve the purported aims of treatment or rehabilitation.49 The WGAD has explained that the threat of imprisonment should never be used to coerce people into drug treatment.50 It has recommended that ‘States should make available voluntary, evidence-informed and rights-based health and social services in the community’ as an alternative to compulsory drug detention centres.51

Once detained, the continued pathologisation of detainees can serve an added purpose. By focusing on detainees’ “disorders” the authorities and institutions responsible for the detention emphasise a narrative about what is “wrong” or deviant with the detainees and what must be cured or fixed. This can serve to mask any institutional causes for the symptoms observed (which, given the conclusions from the analysis of the harms of arbitrary detention in Chapter 3, may be connected back to the detention itself or detention-related ill-treatment).52 Howell canvasses this phenomenon in relation to the US response to detainee suicidality at Guantánamo Bay: ‘the U.S. military, and [by] the Bush administration, told the story of irrational, uncivilized, crazed killers – terrorist madmen …’53 who they portrayed as ‘incurable, irredeemable, as suicidal (and homicidal), and manipulative’; the suicides were constructed as ‘manipulative self-injurious behavior’.54

The use of detention to “cure” people because they do not fit within the “imagined” society is the epitome of hostility and social control, in that it deems the way these individuals or groups “are” – their inherent nature and characteristics – as needing to be fixed or cured. Mandating, and indeed requiring, that fixing constitutes a further act of violence. These decisions impact upon the liberty and security, autonomy and privacy of the individuals and groups affected. Often, they will result in cruel, inhuman, or degrading treatment or punishment, if not torture.55

4.3.3 Detention as deterrence

Deterrence theory is a theory of punishment by which the goal is the reduction of offending (and future offending) by both the individual offender and any future would-be offenders through the sanction or threat of sanction. It plays an important role in criminal law detention, both pre-trial detention (some of the rationales being to prevent reoffending or protect the public order, though these rationales have been subject to criticism56) and post-conviction sentencing to a term of imprisonment (where specific and general deterrence are part of the sentencing objectives).57 Detention is often justified as a form of criminal deterrence though there is limited empirical evidence of its effectiveness,58 particularly for ‘non-deterrable’ criminal offending linked to social issues,59 such as offending in the context of alcohol intoxication or drug use. Clearly, deterrence plays no role in detentions fuelled by discrimination. As was discussed earlier (and is further developed later) in this chapter, deterrence is also a rationale for detention on mental health grounds (where detention is justified as being required to protect the health or safety of the individual to be detained or where it is believed that the detainee poses a significant risk to other people).

Deterrence has also become a political rationale to detain refugees and other migrants. It does not deter those that have already arrived, but detention has been justified by governments on the basis that it serves as a form of general deterrence (though with little evidence of its effectiveness60) to disincentivise other would-be refugees and other migrants from choosing to seek entry to the country of destination. This policy of deterrence is pursued even though many refugees and other migrants, including victims of serious human rights violations in their home states, children, victims of trafficking and stateless persons are recognised as vulnerable groups entitled to special protection, and detention would likely exacerbate those vulnerabilities.

The externalisation of border control involves the outsourced detention of would-be migrants in transit countries, contiguous border zones and international waters to deter them from reaching destination countries. It has fuelled the detention crises in Libya,61 the zones of exclusion in the Spanish enclaves of Ceuta and Melilla,62 the long-standing offshore processing of migrants seeking to enter Australia,63 among other places.

Regardless of its administrative basis, the detention of refugees and other migrants has the character of, and is experienced by those subjected to the practice as, a punitive form of criminalisation.64 As Fekete has explained in relation to the adoption of the philosophy of deterrence by European states:

[T]he idea is to create a system so harsh and unwelcoming as to deter all but the most desperate. The result beggars belief for a continent that prides itself on superior Enlightenment values. Seas that have turned into vast graveyards. A welcome that resembles the concentration camp. A process of removal that is not only cruel and arbitrary, but a destroyer of human dignity. An archipelago of battlements and internment centres across Europe and North Africa that generates huge profits for private security companies whose executives daily dine out on the fare of human misery.65

Deterrence has also been used in Australia to justify the introduction of mandatory detention for those that arrive without a valid visa and claim asylum, and later as part of the justification for the resort to offshore detention centres (focusing on the need to remove the incentives to pay people smugglers).66 However, there is no evidence to suggest that detaining refugees and other migrants has any impact on the disincentivisation of people smugglers. According to the United Nations Office on Drugs and Crime (UNODC), ‘increased border enforcement efforts [which would include criminalisation measures] in geographically limited areas often result in displacement of smuggling routes to different borders, smuggling methods or to other routes. If applied in isolation these measures do not reduce the number of smuggled migrants or the size of the smuggling problem’.67 The UNODC has called for a comprehensive, multipronged approach, which should include, among the measures, limiting the demand for smugglers. In this regard, it has indicated that:

Limiting the demand for migrant smuggling can be achieved by broadening the possibilities for regular migration and increasing the accessibility of regular travel documents and procedures. Making regular migration opportunities more accessible in origin countries and refugee camps, including the expansion of migration and asylum bureaux in origin areas, would reduce opportunities for smugglers.68

According to Pickering and Lambert, who have studied Australian government usages of deterrence to justify increasingly oppressive policies pertaining to refugees and migrants, including detention:

Deterrence was never meant to be measurable or justifiable in its own terms, not least because of the difficulties involved of proving its effectiveness or otherwise. Rather, deterrence is about a strategy of control that only those apart from the experiences of persecution and forced migration could contemplate, only an internal audience would consider.69

Even if there was evidence of effectiveness, deterrence would not constitute a lawful rationale to detain all migrants entering a country,70 nor would it be a lawful basis to interdict persons at sea and direct them to other countries where they would face almost certain arbitrary detention. Nevertheless, this illegality has not stemmed the practice. Systematically resorting to the detention of irregular migrants, regardless of their individual personal circumstances, contradicts the right to liberty and security of the person and constitutes arbitrary detention. Despite this, and as is further explained later in this chapter,71 some human rights courts have given an increasingly wide berth to states to implement such actions, which has simply fuelled more repressive policies.

4.4 The arbitrary detention of socially excluded and marginalised groups

This section reviews how the law has responded to arbitrary detention falling within three typologies of marginalisation: the “unseen”; the “reviled and resented”; and the “undeserving”. There are important social drivers to the deprivations the individuals and groups reflected in these typologies experience, which increase their susceptibility to arbitrary detention. As will be explained, human rights law has not succeeded to adequately address either the causes or consequences.

The typologies are interlinked in three important ways:

  1. (1)the groups of persons fitting within the typologies are fluid, with some observations applicable to more than one group, and with the groups themselves often reflecting more than one typology;
  2. (2)the typologies share a commonality wherein the transactional justifications given by state authorities to authorise the detention of individuals appear fabricated, more of an excuse that masks the “real” reasons for detention, which are more totemic; and
  3. (3)the identities and groups referred to in the typologies are not oppressed to the same extent or in the same ways. It is the essentialised “other” that, as Iris Marion Young explains, undergoes ‘a paradoxical oppression, in that they are both marked out by stereotypes and at the same time rendered invisible’.72 However, there are many “others”, and arbitrary treatment may result from more than one dimension of persons’ identities. A person may face multiple disadvantages or advantages because of the coincidence of two or more of their characteristics, their relationality, the social context and the operation of power relations.73

Both socially generated inequalities, such as those attributable to differences in wealth inheritance, family station, and upbringing and inequalities generated by racism, xenophobia and other forms of discrimination are morally arbitrary in the Rawlsian sense.74 These inequalities also lead to a higher likelihood of being subjected to violence and abuse, including of being subjected to arbitrary detention. This stems principally from the discrimination they experience both procedurally and substantively.

The WGAD considers claims related to arbitrary detention stemming from discriminatory grounds in its Category V, focusing on ‘discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings’.75 This list is different and arguably broader than the protected grounds stipulated in Article 26 ICCPR76 in that it refers specifically to disability; replaces sex with gender and sexual orientation, race and colour with ethnic origin, and property with economic condition; and includes a catch-all ‘or any other status, that aims towards or can result in ignoring the equality of human beings’. In determining whether persons have been subjected to arbitrary detention on the discriminatory grounds set out in Category V, the WGAD has paid special attention to the existence of patterns of persecution against the detained person or other persons with similar distinguishing characteristics, situation in which the authorities have made statements or conducted themselves towards the detained person in a manner that indicates a discriminatory attitude, the context suggests discriminatory grounds for the detention, or the conduct for which the person is detained is only an offence for members of their group(s).77

Discrimination increases the susceptibility of certain groups to be subjected to arbitrary detention, because, in the criminal justice system: (1) authorities single out certain ethnic, racial or religious minority persons for heightened suspicion or detention; (2) such persons are more likely to be subject to pre-trial detention, which then has a knock-on effect on convictions and sentencing. Members of these groups may also face disproportionate prosecutions, unfair trials and disproportionately severe punishments on conviction. Outside the criminal justice system, certain persons from marginalised or minority backgrounds are more susceptible to homelessness, displacement and addiction, and migrants are more likely to face discrimination based on their status of non-citizens, even more so when they exhibit additional features of difference. These characteristics are thus intersectional factors that must be accounted for in the analysis of the role of arbitrary detention in the enforcement of hostility and social control.

4.4.1 The “unseen”: economic and social “degenerates”

The first typology has to do with the criminalisation of poverty, a phenomenon linked to the neoliberal state’s emphasis on punitive containment, though not exclusively so.78 It concerns the reduced toleration and progressive erosion of social protections for persons who are situated at the fringes of society, such as persons who are homeless, persons with mental health challenges, disabilities, drug dependencies and the increased resort to criminalisation to punish such persons for deigning to exist in accepted society as well as the use of administrative (rehabilitative) detention to separate such persons from society. These groups are in plain sight, but social protection structures conspire to aid in the process of “unseeing” them. Thus the “solution” is to hide what has become, in the eyes of the privileged society, too visible. Detention here is used as a method of socio-economic control, to censure and punish “degenerate” behaviour.

Much of the practice of “unseeing” concerns the refusal to recognise the autonomy of these marginalised groups because of who they are perceived to be and what role they are allowed to have in the society, as opposed to anything they may have done individually or collectively. Detention masquerades as care for those who are pathologised and as moralistic re-education and rehabilitation.

The right to liberty case law pertaining to the “unseen” focuses predominantly on the adequacy of the rationale for detention. Courts will consider whether detention was lawful,79 and whether the justification for detention met the conditions of necessity and proportionality. Human dignity is an overarching principle related to evolving human rights and social justice standards, including in respect to decisions about who, whether, and in what circumstances to detain. Those being considered for detention are not “rogue”, “vagabond”, “idle” or “disorderly” as these terms reflect ‘an outdated and largely colonial perception of individuals without any rights’ and violate human dignity because ‘their use dehumanizes and degrades individuals with a perceived lower status’.80 The application of vagrancy laws ‘often deprives the underprivileged and marginalized of their dignity by unlawfully interfering with their efforts to maintain or build a decent life or to enjoy a lifestyle they pursue’.81 In Purohit and Moore, the African Commission on Human and Peoples’ Rights (ACommHPR) underscored that branding persons with mental illnesses as “lunatics” and “idiots” serves to ‘dehumanise and deny them any form of dignity’.82

The move to recognise states’ positive obligations to reverse the pattern of “unseeing” – in effect, to see, has been patchy and inconsistent. There is a sense that human rights law is mainly focused on sanitising and making less repulsive the process of “unseeing”. However, there are some important inroads in discrete areas, largely fuelled by the impact of the Convention on the Rights of Persons with Disabilities (CRPD).83

(i) Detention of persons who are homeless

In most countries, persons living in poverty are disproportionately represented in the criminal justice system, and this disproportionality is exacerbated when combined with other marginalising factors.84 The detention of persons who are homeless and “vagrants” is a throwback to medieval vagrancy laws,85 but has taken on new life with the neoliberal attacks on the poor. People are criminalised who display characteristics associated with homelessness, such as not having a fixed home or means of subsistence, loitering, trespassing, begging, hawking, vending, urinating, or washing clothes in public, and other nuisance-related or disorderly conduct. Laws are framed in vague and overbroad terms, making it unclear what actions are covered and leading to discretionary implementation and misuse (frequently in a discriminatory manner) by law enforcement.86

Homelessness laws are used to regulate public spaces and reflect different views and assumptions about what public space is for and who should have access to it. As Sepúlveda Carmona explains, behaviours are prohibited because they are classified as ‘dangerous, conflicting with the demands of public safety or order, disturbing the normal activities for which public spaces are intended, or contrary to the images and preconceptions that authorities want to associate with such places’.87 The presence of people who are homeless is ‘a danger, or a disturbance of the normal activities for which public spaces are intended, or they are seen as contradicting the images and symbols of those spaces’.88

The laws are used to justify “sweep-up” operations to forcibly remove undesirable persons and to demolish informal settlements to improve tourist traffic and economic prospects of urban areas and to aid gentrification, in violation of the right to housing.89 Arbitrary detention of homeless persons is thus part of the hostile strategies used to get persons to move along, to encourage them to stop seeing certain locations as safe or welcoming. Often it is sex workers, homeless children, unemployed persons, persons who beg, street vendors, or migrant or displaced persons groups that are targeted. The practice is global, including in Africa,90 Asia,91 Europe92 and the Americas.93 While often associated with urban areas, the criminalisation of poverty and homelessness can also stem from changes in economies and rural land use, resulting in evictions, forcing migration to cities, without any social infrastructure in place to receive the arrivals.94 It can also stem from, or be exacerbated by, armed conflict, environmental or other disasters causing internal or external displacements of populations.95

Constitutional or supreme courts,96 regional courts,97 human rights commissions, treaty bodies and special procedures98 are recognising the insidiousness of vagrancy and related laws and determining that they are incompatible with fundamental human rights standards, including the prohibition on arbitrary detention. For instance, the African Court on Human and Peoples’ Rights has indicated:

[T]he enforcement of [vagrancy] laws often results in pretextual arrests, arrests without warrants and illegal pre-trial detention. This exposes vagrancy laws to constant potential abuse.

The Court concedes that arrests under vagrancy laws may, ostensibly, satisfy the requirement that the deprivation of freedom must be based on reasons and conditions prescribed by law. Nevertheless, the manner in which vagrancy offences are framed, in most African countries, presents a danger due to their overly broad and ambiguous nature. One of the major challenges is that vagrancy laws do not, ex ante, sufficiently and clearly lay down the reasons and conditions on which one can be arrested and detained to enable the public to know what is within the scope of prohibition. In practice, therefore, many arrests for vagrancy offences are arbitrary.99

Many of these decisions call on states to amend or repeal vagrancy laws and to undertake all necessary measures to support vulnerable populations,100 yet implementation remains weak, and the jurisprudence is inconsistent.

The main challenges with the laws and their implementation are as follows:

Vague laws: Vague vagrancy legislation gives law enforcement wide discretion, which can be influenced by discriminatory assumptions about criminality fuelled by biased views on poverty, gender, race, ethnicity, place of origin and social status. Initiatives like the African Court on Human and Peoples’ Rights Advisory Opinion on the compatibility of vagrancy laws with the African Charter101 are pathbreaking.

Regulation of space: Public space has become the location for the politicisation and penalisation of the homeless and the poor. There is increasing pressure on courts to privilege the interests of businesses and other highly valued groups over the rights of everyone (including homeless persons) to avail themselves of public spaces.

Revulsion of the poor: People are being targeted for their status as poor people and for their life-sustaining activities on account of their economic and social situations, and not for their criminal conduct. Communities should stop ‘treating homeless persons as affronts to their sensibilities and neighbourhoods, should see in their presence a tragic indictment of community and government policies’.102

(ii) Detention on mental health grounds

Views about detention on mental health (including psychosocial and intellectual disabilities) grounds have evolved significantly in recent decades. This is due to the growing recognition of the human dignity of persons with mental health disabilities, and the understanding of the critical importance of autonomy, agency and non-discrimination to notions of human dignity. Much of this shift has been fostered by the advocacy for and the adoption of the CRPD.103

Prior to the adoption of the CRPD, detention was seen as an acceptable part of the toolbox, within boundaries. Automatic (involuntary) detentions of persons on mental health grounds without resort to individualised assessments were understood to violate the right to liberty and the prohibition of arbitrary arrest and detention.104 Detention was only justifiable if specific conditions were met that were personal to the individual being detained, considering all relevant circumstances, and these needed to be reasoned.

First, the individual needed to suffer from a “true” mental illness or disorder with the condition diagnosed being of a kind or degree warranting compulsory confinement.105 It would not be lawful to permit someone to be involuntarily confined simply because their views or behaviour deviated from the norms prevailing in a particular society.106 Any disorder must have been established through objective medical expertise, assessed by an appropriate medical professional procedurally and substantively competent to certify the detention.107

Second, the disability should not in itself have been able to justify detention, but rather any deprivation of liberty must have been necessary and proportionate, for the purpose of protecting the individual in question from serious harm or preventing injury to others,108 and any protective measure needed to reflect as far as possible the wishes of persons capable of expressing their will.109 Most courts and adjudicative bodies refrained from outlawing mandatory committals outright, and assessed the lawfulness of committals on a case-by-case basis, considering the totality of the circumstances. This avoidance of sweeping statements of principle is consistent with some of the in-built incrementalism of human rights adjudication. But it is also problematic, as whether a person could be detained on mental health grounds became a question of degree, with human dignity and autonomy being measured against other “goods”. Some recognition of the ability to detain on mental health grounds also appeared in international standards.110

Third, authorities were obligated to ensure that any committal to a mental health facility complied with a modicum of procedural safeguards. It was not appropriate for an individual to be admitted “informally” to an institution where they did not have the mental capacity to consent to admission.111 Individuals needed to be able to be heard and to be represented by counsel (and to be provided with legal aid if required) in determinations affecting their lives, livelihood, liberty, property or status112 and to be able to seek a review of any decision on committal, and their ability to do so needed to be practical and achievable.113

Fourth, authorities were obliged to take appropriate initiatives to ensure that detainees received treatment adapted to their state of health and that was likely to help them regain their freedom. Detention for seven years in a psychiatric wing of a prison, which was supposed to be temporary, and which did not provide appropriate treatment, constituted a violation of the right to liberty and security.114

Moving to the present, the CRPD has shifted matters in several important ways.

First, while the CRPD itself is ambiguous on this point, the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee), the body of experts tasked with interpreting the CRPD, has determined that involuntary committals on mental health grounds constitute arbitrary detention; the practice is inherently arbitrary. The CRPD Committee ‘imbued with a sense of urgency, impatient with reformist “chipping away” at the legal and physical edifices of institutionalization’,115 indicated that:

Involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent for health care (article 25). The Committee has repeatedly stated that States parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairments. Involuntary commitment in mental health facilities carries with it the denial of the person’s legal capacity to decide about care, treatment, and admission to a hospital or institution, and therefore violates article 12 in conjunction with article 14.116

This position aligns with the trajectory of the WGAD in respect to persons with disabilities.117

The CRPD Committee has applied this reasoning in its adjudication of several individual complaints. Leo v Australia118 concerned an Aboriginal man from Australia who, during an apparent psychotic episode, assaulted a woman on the street. He was deemed unfit to stand trial and found not guilty due to his mental impairment. The court placed a custodial supervision order on him, under which he was to remain in prison for 12 months, a sentence he might have received had he been convicted. Ultimately, he remained in maximum-security prison for a total of five years and ten months, about six times longer than if he had not been declared mentally impaired, had stood trial and been convicted.119 He was given very limited or no mental health support and, consequently, his mental health further deteriorated. The Committee determined that the differential treatment provided by Australian law, which allowed for the potentially indefinite detention of persons found unfit to stand trial, was discriminatory because it did not eliminate barriers to gaining equal access to the law to assert rights.120 By detaining Mr Leo without a criminal conviction, but on the basis of the potential consequences of his disability, Australia ‘convert[ed] his disability into the core cause of his detention’,121 resulting in discriminatory treatment.

This reform of mental health practices required by the CRPD has not yet been fully implemented by many states. According to Minkowitz, frameworks that recognise the right to detain and compulsory treatment but have progressively introduced procedural safeguards ‘represent a first attempt to come to grips with the human rights implications of this regime, while demonstrating an unwillingness to challenge the supposed necessity for segregation, confinement and compulsion of those labelled as “mentally ill”’.122 She argues that no laws that allow for involuntary confinement of persons with psychosocial disabilities for the purpose of treatment or preventive detention will be capable of complying with Article 14 CRPD, because such laws always justify detention on the basis of disability.123 A new World Health Organization/Office of the High Commissioner for Human Rights Guidance document, which was still in draft at the time of writing, recognises that ‘ending coercive practices in mental health – such as involuntary commitment, forced medication, seclusion and restraints – is essential in order to respect the rights of people using mental health services’.124 Dainius Pūras, former UN Special Rapporteur on the right to health, has gone so far as to recommend states to ‘stop directing investment to institutional care and redirect it to community-based services’.125 Following this reasoning to its logical conclusion, proper implementation of Article 14 CRPD would require states to put in place alternatives that would allow a person to be appropriately supervised in a non-custodial setting, which would constitute a significant, but important, commitment to the implementation of the Convention.

Second, the CRPD privileges individuals’ autonomy and agency in all matters affecting their health and well-being. The CRPD provides the most up-to-date statement on the legal capacity of persons with mental health challenges to consent to mandatory committal.126 Article 12 of the CRPD requires states parties to inter alia, take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity, and that measures provide for appropriate and effective safeguards to prevent abuse:

[These] shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent, and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.127

In Leo v Australia, the CRPD Committee made clear that disability must never be a ground for denying legal capacity. Australia should have provided, or at least considered providing, Mr Leo with the support or accommodation he needed to stand trial, exercise legal capacity and access justice.128 This second aspect too has major implications for guardianship regimes in place in many states, and for the removal of mandatory treatment regimes that continue to operate in many closed facilities. Juan Méndez, former Special Rapporteur on Torture, has underscored that ‘involuntary treatment and other psychiatric interventions in health-care facilities are forms of torture and ill-treatment’.129

(iii) Detention of people who use drugs

People who use drugs, regularly portrayed as evil, as social deviants, sinners and criminals, are often detained in compulsory drug detention centres,130 sometimes referred to as drug treatment centres or re-education through labour centres or camps, which are ‘commonly run by military or paramilitary, police or security forces, or private companies’.131 Such detention – which results from acts of “unseeing” and the denial of social protections – is frequently without medical assessment, judicial review or appeal, or clear standards for release, and will amount to arbitrary detention.132 In addition to the detention of persons suspected of using drugs, the centres often house other individuals deemed threatening to national security or public order, as well as homeless persons, sex workers and individuals with mental health conditions.133 Exposure of the significant problems and abuses associated with compulsory centres has provided impetus for reforms, and UN agencies have repeatedly called for the centres’ permanent closure.134 However, according to Wolfe and Saucier, there is a challenge of mixed messages and lack of implementation,135 and compulsory drug detention centres remain part of what is essentially a punitive landscape.

In addition to the resort to compulsory drug detention centres, drug control gives rise to a host of human rights violations that foster arbitrary detention.136 The main challenges include:

Excessive resort to pre-trial detention. In some countries, pre-trial detention for drug-related offences is lengthy and/or mandatory.137 The International Guidelines on Human Rights and Drugs Policy provide that states should ‘ensure that pre-trial detention is never mandatory for drug-related charges and is imposed only in exceptional circumstances where such detention is deemed reasonable, necessary, and proportional’.138

Disproportionate criminalisation and punishment: Minor drug offences may be over-criminalised and prison sentences for drug offences can be disproportionately long, even for crimes involving children,139 sometimes matching or exceeding sentences for violent crimes.140 In Acosta Martínez v Argentina, the Inter-American Court of Human Rights (IACtHR) determined that ‘the State’s punitive power can only be exercised to the extent strictly necessary to protect fundamental legal rights from attacks that damage or endanger them’.141 It expressed its concerns over:

the adoption of state measures that seek to punish drug-related conduct – specifically minor drug-related offenses, such as consumption and possession for personal use – and finds worrisome what appears to have been a notable increase in the number of persons deprived of liberty for drug-related criminal acts. In this context, the offenses related to drug use are characterized as “grave offenses” (“delitos graves”), and therefore, pretrial detention is applied automatically, and without the persons accused being able to benefit from alternatives to incarceration.142 […] all drug-related conduct is treated as “serious crimes” with no distinction whatsoever, thereby ignoring the principles on which the use of pretrial detention is based, especially proportionality.143

Discriminatory drug control measures directed at and/or differentially impacting vulnerable and marginalised groups, which may result in arbitrary detention.144 Human Rights Watch research, conducted in respect of the Somsanga drug detention centre in Lao People’s Democratic Republic, concluded: ‘Somsanga not only detains those dependent on drugs. For Lao authorities, Somsanga functions as a convenient dumping ground for those considered socially “undesirable.” People who might have a genuine need for drug dependency treatment are locked in alongside beggars, the homeless, street children, and people with mental disabilities.’145 Similar findings have been made in respect of other countries.146

4.4.2 The “reviled and resented”: racism, xenophobia, and other discriminatory treatment

The second typology has to do with the rise in xenophobia and hate. It concerns the discriminatory targeting of certain marginalised groups because they are perceived as different or less worthy of membership in the “imagined” society and indeed, to some, as an existential threat to that society. These groups are discriminated against based on race, ethnicity, national origin, gender, gender identity or sexual orientation. They are also indigenous peoples, religious minorities and non-citizens. These labels, which are imposed on them, serve as a vector for their containment and result in their increased susceptibility to arrest and detention. The groups are targeted because of the labels others place upon them, but also as a method to repress their autonomy and subjecthood. When these groups seek to insist upon their subjecthood – when they cease to be invisible simply by existing and engaging within the society – the “imagined” dominant majorities who control the public sphere respond with suppression, a theme that is also explored in Chapter 5: Deterring Dissent. Thus, in this sense, it is the groups that are feared for their unknowability, however they are also repressed when they appear to force upon the “imagined society” their visibility.147 Scarry captures this conundrum when she explains: ‘There exists a circular relation between the infliction of pain and the problem of otherness. The difficulty of imagining others is both the cause of, and the problem displayed by, the action of injuring.’148 These groups are being locked up to foster the dignity of the “imagined” streets and picket fences, and as a figurative form of punishment when they push against that imagined decorum. It is yet another form of sanitisation.

This section considers the connection between racism, xenophobia and other discriminatory treatment, and the practice of arbitrary detention. Race, ethnicity, national origin status, religion and gender are socially constructed identities that have been employed and essentialised in the construction and exploitation of difference to impose and maintain privileges and hierarchies. These identities create privileges in some and disadvantages in others.149 Membership of each of these identities may be self-defined and subjectively meaningful to individuals, but also imposed (and contested) by others in a society and by the society.

While discrimination can take many forms, this section focuses on three areas of identity-based discrimination and how discrimination in these areas fuels arbitrary detention: (i) groups discriminated against based on race, ethnicity or religion; (ii) indigenous peoples; and (iii) persons discriminated against on the basis of gender or gendered roles.

(i) Groups discriminated against based on race, ethnicity or religious identity

The 2001 Declaration adopted in Durban by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance expressed:

profound repudiation of the racism, racial discrimination, xenophobia and related intolerance that persist in some States in the functioning of the penal system and in the application of the law, as well as in the actions and attitudes of institutions and individuals responsible for law enforcement, especially where this has contributed to certain groups being overrepresented among persons under detention or imprisoned.150

The Committee on the Elimination of Racial Discrimination (CERD Committee), in its General Recommendation 31 highlighted the importance of combatting all forms of discrimination in the administration and functioning of the criminal justice system against persons belonging to racial or ethnic groups.151 The Recommendation encourages states parties to pay particular attention to the number and percentage of such persons, ‘who are held in prison or preventive detention, including internment centres, penal establishments, psychiatric establishments or holding areas in airports’,152 and reminds that:

the mere fact of belonging to a racial or ethnic group or one of the aforementioned groups is not a sufficient reason, de jure or de facto, to place a person in pretrial detention. Such pretrial detention can be justified only on objective grounds stipulated in the law, such as the risk of flight, the risk that the person might destroy evidence or influence witnesses, or the risk of a serious disturbance of public order.153

Despite these missives, arbitrary detention stemming from racial and ethnic discrimination, as well as religious identity, continues unabated. The WGAD has adopted numerous opinions that stem from discrimination on these bases. It has found a prima facie case of discrimination on the basis of a consistent pattern of behaviour involving the targeting of the groups concerned,154 the making of discriminatory insults or the perpetration of conduct directed against the ethnicity or religion of the detainees,155 and the application of discriminatory laws targeting particular groups.156 The WGAD also determined, in relation to the US, that racial disparities are among the areas causing systemic problems within the criminal justice system that result in arbitrary detention157: ‘[C]ompared to the Caucasian population, African Americans are more likely to be stopped and searched by law enforcement officers; more likely to be arrested for marijuana possession, despite equal levels of use; and more likely to be sentenced to longer terms of imprisonment.’158 In the prisons it visited, African American and Hispanic detainees were over-represented.159

A European Parliament report found extensive profiling by police of persons of African descent/Black Europeans (24% of people of African descent/Black Europeans in the 12 member states for which data was collected had been stopped by the police in the previous five years),160 with discriminatory detention practices impacting people of African descent/Black Europeans, Roma, and migrants and refugees.161 In France, a national survey determined that young men of Arab and African descent are 20 times more likely to be stopped and searched than any other male group, whereas in the UK Black people were nine and a half times more likely to be stopped as compared to white people.162 The Parliamentary Assembly of the Council of Europe has indicated that ‘[t]he over-representation of foreign nationals among pretrial detainees gives rise to concerns that the legal grounds for detention are applied in a discriminatory way’, and has recommended states to take ‘appropriate action to redress any discriminatory application of the rules governing pretrial detention with regard to foreign nationals, in particular by clarifying that being a foreigner does not per se constitute an increased risk of absconding’.163

International human rights case law and, accordingly, formal judicial pronouncements on the matter, is still developing. The ACommHPR, in an unfortunately timed decision, determined that arrests and detentions carried out by the (ousted genocidal) Rwandan Government ‘on grounds of ethnic origin alone, […] constitute arbitrary deprivation of the liberty of an individual’; such acts are thus ‘clear evidence of a violation’ of Article 6 of the African Charter on Human and Peoples’ Rights.164 The UN Human Rights Committee indicated in a case concerning racial profiling that:

[T]he physical or ethnic characteristics of the people subjected thereto should not by themselves be deemed indicative of their possible illegal presence in the country. Nor should they be carried out in such a way as to target only people with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the people concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination.165

The IACtHR has recognised, in Acosta Martínez v Argentina, that the context of racial discrimination and police persecution experienced by persons of African descent in Argentina is a relevant consideration to take into account when considering whether a deprivation of liberty was arbitrary.166 It determined that the use of vague legislation to justify the arrest obscured the use of racial profiling as the primary reason for the detention. The arrest was therefore arbitrary.167

The ECtHR determined that the use of ethnic profiling that resulted in differential treatment between persons of Chechen and non-Chechen ethnic origin in the enjoyment of their right to freedom of movement had no objective and reasonable justification, and therefore constituted discrimination.168 The Court was not called upon to consider the impact of discrimination on arbitrary detention, though it indicated generally that ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures’.169 Similarly, there are several cases in which a separate regime for the indefinite detention of non-nationals,170 or the decision not to afford bail to non-nationals on the basis that they present greater flight risks,171 were held to be an insufficient basis for distinction and thus not justifiable under Article 5 of the Convention.

In an unrelated case, the ECtHR indicated that ‘where there is evidence of patterns of violence and intolerance against an ethnic minority, the positive obligations incumbent on member states require a higher standard of response to alleged bias-motivated incidents’.172 However, the nature of the positive obligation remains vaguely framed. Do states have an obligation to stop racial profiling that is discriminatory in itself and ultimately leads to additional serious violations of human rights, including arbitrary detention? In Basu v Germany173 and Muhammad v Spain,174 two ECtHR decisions on racial profiling during identity checks decided on the same day, the Court was confronted with parts of this question. However, the majority in each case takes a narrow view of states’ positive obligations. Both chambers determined that, once an arguable case of discrimination has been made, there is an obligation on the authorities to investigate. But the judgments do not provide a clear assessment of what petitioners must demonstrate to shift the burden to the state, and what the states must do once that burden shifts is framed in a narrow, procedural way. In Basu, the investigation that followed was deemed inadequate, whereas the Muhammad investigation was determined to be sufficient, though with strong dissents.175 As has been argued by commentators, the judgments failed to consider whether the states had adequate structures in place to prevent racial profiling.176 Furthermore, following the inadequate investigation in Basu, the Court determined that it was unable to make a positive determination on discrimination,177 which, as Ringelheim has argued, ‘amounts to requiring the applicant to pay the cost of state authorities’ failure to comply with their obligation to investigate’.178 As Judge Pavli notes in his partial dissent in Basu:

The facts of the present case, as well as the applicant’s specific submissions, invited the Court to begin to delineate the substantive standards to be applied in this field, beyond the preliminary (albeit essential) requirements of an effective domestic investigation. The majority have declined that invitation by stopping at a finding of a procedural violation. While minimalism may have its fans, both as a legal doctrine and as a school of architecture and design, it is not necessarily the best way to ensure equality for all in our diverse societies; which are here to stay.179

What do Basu and Muhammad say about positive obligations to eradicate discrimination? Very little. The focus is maintained on states’ procedural obligations to investigate particular incidents raised by aggrieved individuals, and much too little on how to address what are invariably systemic challenges. One can only hope that the Committee of Ministers will press states to address the wider issues in their general measures, as part of the execution of the judgments.

(ii) Indigenous peoples

The over-representation of indigenous peoples in all forms of detention is a global problem linked to the continued impact of land dispossession, colonialism and ongoing discrimination. While such discrimination can increase their susceptibility to arbitrary detention in much the same way as it does for other ethnic, racialised and marginalised groups, the experience of colonialism, dispossession and subjugation is a crucial lens through which to analyse susceptibility to detention and, in particular, ‘the long-term social and economic marginalisation, the denial of citizenship rights for Indigenous peoples, and the limited recognition of Indigenous law and governance’.180 This is also underscored by the UN Expert Mechanism on the Rights of Indigenous Peoples.181

The UN Special Rapporteur on the Rights of Indigenous Persons has explained that indigenous peoples are ‘overrepresented in every stage of criminal justice processes’.182 They are additionally subjected to arbitrary detentions as part of the crackdowns against their engagement in the defence of their fundamental rights, their land, culture and ways of life.183

The applicability of principles of equality and non-discrimination in indigenous peoples’ access to human rights protections has been recognised in several treaties and declaratory texts.184 The CERD Committee’s General Recommendation 31 recommends states parties to give preference to alternatives to imprisonment and to other forms of punishment that are better adapted to indigenous persons’ legal systems.185 The susceptibility of indigenous persons to arbitrary detention has also been considered in WGAD opinions, both in respect of their experience of discrimination within the criminal justice system186 and their vulnerability as activists.187 It also features in the jurisprudence of regional and international courts and treaty bodies.

The IACtHR has addressed the arbitrary detention of indigenous persons in several of its judgments188 and, in so doing, has recognised that because indigenous persons deprived of their liberty belong to culturally distinct peoples, states should adopt specific measures to account for this particularity. This stems from a general principle when assessing the scope and content of rights that states must take into account the specific characteristics that differentiate members of indigenous peoples from the general population and that constitute their cultural identity.189

The IACtHR introduced indigenous-specific factors into its consideration of the impact of detention in Norín Catrimán v Chile.190 For their alleged roles in fomenting protests about land dispossession, Mapuche traditional leaders, members of the Mapuche people as well as an activist were convicted of crimes linked to terrorism and given lengthy terms of imprisonment. The IACtHR determined that the adoption and maintenance of pre-trial detention, on vague grounds linked to the danger they posed to the security of society, constituted arbitrary detention, as it was not exceptional in nature, did not respect the presumption of innocence, and also the principles of legality, necessity and proportionality that are essential in a democratic society.191 Further, the state had not taken into account the impact the detention of Mapuche traditional leaders and members of the Mapuche people would have on the Mapuche communities.192

Considering critical perspectives on what differentiates indigenous peoples from the general population, including the colonial history of dispossession, repression and marginalisation, helps to “centre” these experiences in the delivery of justice. But does it go far enough? Some countries have begun to differentiate indigenous peoples’ experiences in criminal sentencing processes. For instance, the Penal Code of Peru ‘includes several provisions intended to ensure consideration of indigenous peoples’ cultural rights, including a reduction or exemption of sentences in cases where an indigenous defendant has committed a crime under different cultural parameters’.193 In Australia, while race and indigeneity, in themselves, cannot be used as mitigating or aggravating factors in sentencing,194 the ‘Fernando Principles’195 provide courts with some scope to take into account the circumstances behind a particular offence or offender, in the context of sentencing,196 though the principles have not been uniformly or fully applied.197 Cunneen and Tauri also note certain foundational problems:

The communicative and performative aspects of Fernando are seen in the act of first determining the actual harms of colonialism and then deciding which Indigenous individuals may have suffered social, economic and psychological damage as a result. This individualising discourse has left open the subsequent reading down of these principles to the extent that they apply to fewer and fewer Aboriginal people before the courts.198

In Canada, efforts to address high indigenous incarceration levels include the Gladue sentencing principles. R v Gladue involved a guilty plea by 19-year-old Jamie Tanis Gladue for manslaughter for the killing of her fiancé while she was intoxicated.199 The Supreme Court recognised that Aboriginal people face unique circumstances, and judges must give those circumstances special consideration when setting bail or assigning a sentence:

[T]he judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection […]. Judges may take judicial notice of the broad systemic and background factors affecting [A]boriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.200

Judges are also obligated to consider all options other than imprisonment, including community sentences focused on rehabilitation and healing, when determining the appropriate sentence.201 Gladue focused on the need to take account of indigenous differentiation in relation to criminal justice matters, though it has inspired conversations in Canada about extending this decolonisation of the law, or ‘contextualized decision-making’, to child welfare and family law, and beyond indigenous offenders to other visible minority groups.202 Gladue contextualisation or differentiation could have as much relevance in other areas of detention considered in this chapter, particularly detention on mental health grounds, drug-related detention, and the detention of persons who are homeless.

While greater consideration of indigeneity is important, the approaches referred to have not reduced overrepresentation, which was their intended purpose.203 Cunneen and Tauri argue that both these Canadian and Australian approaches ‘remain predicated on the centrality of the non-Indigenous legal system’.204 In this respect, they see more promise in the developing practice of indigenous sentencing courts.205 Similarly, Arbel argues in relation to the Canadian system that ‘it does little to challenge the operation of Indigenous mass imprisonment or disrupt its ordering’.206

(iii) Discrimination based on gender or gendered roles

The impact of gender-based discrimination (including discrimination pertaining to gender identity, gender expression, sex characteristics and sexual orientation) on detention and detention practices bears both similarities and some differences to other forms of discrimination set out earlier in this section.

The similarities stem from situations in which persons are being arbitrarily detained for deigning to exist in the public sphere. Arbitrary detention is used here as a tool to regulate behaviour and to punish. This phenomenon occurs most often in conjunction with a culture of misogyny, homophobia and transphobia in policing, where homosexuality is criminalised, and where discrimination by public officials occurs with impunity. In Toonen v Australia, the UN Human Rights Committee determined that the criminalisation of homosexual practices was incompatible with Article 17 ICCPR (right to privacy),207 and the WGAD in a series of opinions made clear that detaining individuals pursuant to laws that criminalise homosexuality constituted arbitrary detention.208 Principle 7 of the Yogyakarta Principles finds similarly.209 Other examples of the practice include where police officers mock and harass members of the LGBTI+ community, use vague and discretionary dress and behavioural codes to extort money from them or threaten them with detention, sometimes carrying out the detention.210 For example, Azul Rojas Marín (at the time of the incident a gay man, who subsequently transitioned to a woman) was arrested by Peruvian police and was raped with a baton by three police officers while detained. The IACtHR held that the detention was unlawful as there was no lawful basis for it. It was arbitrary because it was carried out for discriminatory purposes based on her sexual orientation, which was supported by the derogatory remarks made during the incident; she was shouted at ‘cabro concha de tu madre’ (queer, motherfucker).211

In a related sense, persons are frequently being detained for not conforming with stereotypical gendered roles or, as Madrigal-Borloz explains, ‘preconceived notions of what the victim’s sexual orientation or gender identity should be, with a binary understanding of what constitutes a male and a female or the masculine and the feminine, or with stereotypes of gender sexuality’.212 Detention as punishment for failing to conform to stereotypical gendered roles may also involve punishing women for displaying ‘unfeminine’ behaviour, failing ‘to demonstrate adequate compliance and submission’.213 It can include sexual or public behaviour that does not comply with a society’s moral sensibilities linked to gendered roles, such as the detention of women and children in mother and baby homes in Ireland.214 Another notorious example is the detention of Jina Mahsa Amini, and the thousands of protesters who followed her, for failing to wear the veil in the way stipulated, and for demanding their rights.215 It also relates to the punishment of women for exercising reproductive autonomy. For example, the WGAD examined the situation of three young women living in rural areas in El Salvador with limited access to health services who had suffered obstetric emergencies, but were charged with alleged aggravated homicide offences. It found that the women’s incarceration was arbitrary, as it amounted to discrimination against the women on the basis of their sex or gender and socio-economic status.216 Similarly, women human rights defenders or other women who ‘seek to participate in political, economic, social or cultural leadership in their communities or nations may be acting in defiance of stereotypes obliging women to stay quiet and invisible and defer to male governance’ and ‘may thus be stigmatized, or even criminalized or confined, to prevent them from speaking out or taking action’.217 Equally, men may be penalised and face arbitrary detention for failing to exhibit stereotypical notions of masculinity.

Persons are also subjected to “detentions” in the private or non-state spheres for reasons linked to gender, such as persons subjected to forced marriages, women confined to the home unless they have a male chaperone, LGBTI+ persons forcibly confined by family or community members to undergo “rehabilitation” or other coercive rituals, and persons confined for the purpose of sexual slavery. The International Commission of Jurists recounted a case of a lesbian woman who was forcibly confined by her family, taken to meet priests at religious shrines and forced to repeatedly denounce homosexuality as a sin. When one of her friends complained to the police about the woman’s forced confinement, they were threatened.218 These forms of private or non-state confinements do not fit seamlessly into the usual profile of arbitrary detention; however, they often contain all relevant elements of arbitrary detention or, alternatively, may lead to arbitrary detention.219 States may only have an indirect role in these “detentions”; however, in some contexts, they will tolerate or even acquiesce to the practices and, in all cases, their due diligence obligations to protect these persons from such carceral contexts are engaged. For the most part these contexts have not been considered under the lens of arbitrary detention.220 While there are good reasons not to blur the distinctions between the denial of freedom of movement and arbitrary detention, there is sense and great importance in continually evaluating whether current descriptions, focuses and lenses are sufficiently encompassing of all persons.

4.4.3 The “undeserving”: refugees and other migrants

The third typology, which connects to the first two, relates to governments’ resort to administrative (mainly non-penal, though these lines increasingly blur) detention to deter migrants and refugees from deigning to join the society, on whatever the terms. Aided by a process of reinforcement of borders, the narrative focuses on the criminalisation of migrants’ quest to enter – how dare they, they have no right, they must be punished for trying – the criminalisation of the traffickers and smugglers who have coalesced around migrants to marketise their need to enter (because all lawful channels have been foreclosed), or selective humanitarianism – we must deter people from making unsafe journeys – while ignoring the reasons prompting many to leave their countries of origin in the first place. Detention thus becomes a tool of deterrence and a form of humanitarian charity: it is meted out as a salve to stop a problem, but is experienced punitively by extremely vulnerable persons.

The vast numbers of persons forcibly displaced because of fear of persecution and conflict and the many others seeking new lives elsewhere on account of poverty and lack of opportunities in their home countries have fuelled a rise in anti-immigrant sentiment, racism and xenophobia. Refugees and other migrants have become the epitome of Agamben’s homo sacer.221 This “othering” is premised on fear:

[T]here is the public fear of the shadowy “Other” who brings crime and criminality into the country […] There is the securitization of migration and calls for stringent policing as the solution. There is the panic in the government that it will be portrayed as a “soft touch” and the consequent scramble to appear tough (i.e. exclusionary) on immigration issues. And there is the language that is used: “sneaking in”, the “scourge of illegal immigration”, “flows” and “attacks”.222

The detention of refugees and migrants in many destination countries, particularly in the West, is a product of this constructed fear. It is about the ulterior purpose223 of demonstrating resolve to local constituents, about optics and local politics, more so than it is about enabling applications to be processed or ensuring applicants do not abscond. The policies in some countries appear willfully blind to the fact that it is not a crime to seek asylum, and this blindness is aided at least in Europe by the ECtHR’s exceptional approach to Article 5(1)(f) claims, discussed later. To seek asylum is a human right, and the Refugee Convention recognises that penalties should not be imposed on account of refugees’ ‘illegal entry or presence’, who ‘enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’.224 Even for those who do not claim to be refugees, migrants in an irregular situation are not hardened criminals; at most, they should fall foul of administrative rules, though states are increasingly seeking to criminalise them.225

International law and standard-setting texts226 make clear that immigration detention should be exceptional, used only as a last resort, and that all states should be actively pursuing alternatives to detention. This is further confirmed by UNHCR’s Detention Guidelines.227 Mandatory detention policies that do not consider the individual circumstances of applicants for entry violate this requirement of exceptionality.228 Similarly, prolonged administrative custody without the possibility of administrative or judicial review or remedy is arbitrary.229 Most standard-setting texts recognise that certain people should not be detained, including migrants with international protection needs and migrants in vulnerable situations, including pregnant women, breastfeeding women and victims of trafficking, and children.230

There are only limited rationales to detain refugees and other migrants, and these are framed differently depending upon the legal framework. As has been explained, the general right to liberty and security of the person requires that any deprivation of liberty is not arbitrary, and may be permitted only on such grounds and in accordance with such procedures as are established by law.231 The ECHR is different in that it has set out an exhaustive list of exceptions to the right to liberty. Article 5(1)(f) ECHR provides:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

[…]

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

In general, there is an equivalent approach to lawfulness and the principle of legality among regional and international human rights courts and bodies that have had occasion to assess the validity of laws allowing for immigration detention. A decision to detain must comply with domestic law and be consistent with international law. The law must be sufficiently precise to ensure that those subject to it can know its meaning and to avoid excessive discretion or inconsistencies in the law’s application. This is a standard approach to lawfulness and legality that is broadly consistent across all areas of detention canvassed in this chapter.

With respect to arbitrariness, the UN Human Rights Committee has understood this to include elements of inappropriateness, injustice, lack of predictability or due process of law, unreasonableness, or where it is otherwise unnecessary or disproportionate.232 It has recognised that all decisions to detain, and to maintain a person in detention, must pursue a legitimate aim, and meet the conditions of necessity and proportionality.233 Detention that fails to consider the viability of alternatives to detention would likewise be arbitrary.234 Detention which is initially considered lawful may become “arbitrary” if it is unduly prolonged or not subject to periodic review.235 These criteria must be assessed on a case-by-case basis in light of the facts and circumstances presented.

This approach has also been taken by the IACtHR and by the WGAD.236 For example, in Vélez Loor v Panama, the IACtHR set out the test as follows:

  1. (i)that the purpose of measures that deprive or restrict a person’s liberty is compatible with the Convention;
  2. (ii)that the measures adopted are appropriate for complying with the intended purpose;
  3. (iii)that the measures are necessary, in the sense that they are absolutely indispensable for achieving the intended purpose and that no other measure less onerous exists, in relation to the right involved, to achieve the intended purpose. Hence, the Court has indicated that the right to personal liberty assumes that any limitation of this right must be exceptional; and
  4. iv)that the measures are strictly proportionate, so that the sacrifice inherent in the restriction of the right to liberty is not exaggerated or unreasonable compared to the advantages obtained from this restriction and the achievement of the intended purpose.237

These bodies can consider all circumstances when justifying a detention (the detention must simply meet the requirements for necessity and proportionality). For example, the Human Rights Committee concluded that detention could be justified ‘to prevent flight or interference with evidence’.238 It has also found that ‘the lack of cooperation’ may justify detention for a period.239

The UNHCR Detention Guidelines have likewise underscored the need for any detention to pursue a legitimate aim, and meet the conditions of necessity and proportionality.240 The guidelines explain that there are three purposes for which detention may be necessary in an individual asylum case: public order (to prevent absconding and/or in cases of likelihood of non-cooperation, in connection with accelerated procedures for manifestly unfounded or clearly abusive claims, for initial identity and/or security verification or to record, within the context of a preliminary interview, the elements on which the application for international protection is based, which could not be obtained in the absence of detention), public health or national security.241 Costello has argued that the grounds for detention identified in the Detention Guidelines are inordinately broad, and seem ‘liable to undermine the commitment to ensuring that detention is an exceptional practice’.242 Indeed, “public order” as a ground or a category appears overly expansive, though in the UNHCR’s explanatory text it is clarified that:

Decisions to detain on public order grounds might include initial screening for identity, documentation or health reasons, or exceptionally, in the context of mass influx and in the latter situation, only until order has been restored. In terms of a right of states to detain persons in order to assess the elements of their asylum claim, this applies only to an initial screening, and not generally during a full refugee status determination unless necessary in the individual case.243

As indicated, unlike other frameworks, Article 5(1)(f) ECHR provides an exhaustive list of permissible exceptions. It permits detention in two different situations: first, ‘to prevent an unauthorised entry into the country’ and, second, detention ‘of a person against whom action is being taken with a view to his or her deportation or extradition’.244 In principle, this should reduce the grounds upon which detention would be acceptable. In practice, however, it has become easier for states to demonstrate that the detention of refugees and other migrants falls within either limb. This is because the ECtHR case law has determined that, taking into account the ‘undeniable sovereign right to control aliens entry into and residence in their territory’,245 there is no overarching need to satisfy the requirements of necessity or proportionality, so long as the specific criteria in Article 5(1)(f) are met.

With respect to the first limb, the ECtHR has taken an expansive approach to what constitutes ‘preventing authorised entry into the country’. In Saadi v United Kingdom, the Court made clear that states are entitled to detain individuals prior to formally authorising their entry, under this first limb.246 In other words, there was no need to show that a person was trying to evade entry restrictions (and thus that they presented a risk of absconding or similar); the ability to detain encompassed any person seeking entry.247 The ECtHR found in this way by giving credence to the rhetorical tool of crisis, ‘given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with increasingly high numbers of asylum-seekers’.248 Even more controversially, it suggests that the detention is for the applicants’ benefit because the ability to impose short-term detention avoided a further overwhelming of the immigration system, which would have resulted in even longer periods of detention.249 Saadi is “othered” and has his detention justified on the basis of his own “otherness”.250

With respect to the second limb, the Court determined in Chahal that there is no separate need to show that the detention was necessary to prevent a risk of absconding251 or similar while deportation or extradition proceedings are ongoing.252 The ECtHR has clarified that detention is justifiable under this second limb only to the extent that, and for as long as, deportation or extradition proceedings are in progress and being pursued with diligence.253 If it is clear that it is impossible to proceed with the removal on any grounds, including a real risk of torture or persecution, this would prevent further detention from being justifiable.254

The right to detain in either of these two exhaustive circumstances was not understood as completely unrestrained, however. Though the ECtHR has maintained its finding that there was no need to demonstrate that detention was necessary, it has underscored that the detention needed to be: (1) carried out in good faith without deception by the authorities; (2) closely connected to the purpose of preventing unauthorised entry of the person; (3) in an appropriate place and under appropriate conditions bearing in mind that detainee has not ‘committed criminal offences’ but rather may have fled fearing for his life; and (4) the length of the detention should not exceed that reasonably required for the purpose pursued.255

A further distinction in the ECtHR’s approach to immigration detention, and ‘another nuance to its well-established point of departure in cases dealing with migrants,’256 is how the Court understands what constitutes a deprivation of liberty. Ilias and Ahmed v Hungary involved two migrants who had arrived in the Röszke transit zone in Hungary, situated at the border between Hungary and Serbia. They had submitted asylum requests upon their arrival at the transit zone, which had been rejected and their expulsions ordered. They were ultimately removed to Serbia after spending 23 days at the transit zone. The Grand Chamber (different from the initial Chamber decision and distinguishing several prior judgments257) held that the applicants’ time at the transit zone did not constitute a detention for the purposes of Article 5, therefore making the article inapplicable, because the applicants were at the transit zone by choice and could at any point have returned to Serbia (though the applicants disputed Serbia’s status as a safe country). In arriving at this conclusion, the Grand Chamber noted (similar to its comments in the Saadi case258) that in the context of asylum-seekers, its approach should be ‘practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the States’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration.’259 Judge Bianku, in his partial dissent, took issue with the majority’s conclusion:

An asylum-seeker wants protection, and his asylum request concerns the protection of a right secured under the Convention, namely the right not to suffer treatment contrary to Article 3, or else Article 2. This process concerns a necessity, not a choice. We can see from European history that such “choices” have cost hundreds of people their lives. I therefore find it difficult to conceive of the fact of asylum-seekers crossing a border as a “choice”.260

Certainly, the ECtHR’s approach to immigration detention has received criticisms261 and strong dissents.262 Nevertheless, it remains in place and is an important vehicle for states’ ongoing resort to policies of exclusion.

Unlike some of the other contexts of detention explored in this chapter, particularly in respect to detention on mental health grounds, the ECtHR case law on immigration detention makes clear that immigration detention is not understood to be prima facie arbitrary. This stems from the different roles played by proportionality assessments, which ultimately justifies a fundamentally different approach to a highly vulnerable, highly marginalised and stigmatised category of persons. It must be queried whether the assumptions that give rise to these differences in result are sufficiently substantial, or whether they simply stem from the frame of “crisis” and “othering” from which judgments on immigration detention tend to be decided. Other regions are watching carefully.

4.5 Conclusions

This chapter has considered the various ways in which arbitrary detention serves as a strategy to enforce hostility and social control in relation to some of the most marginalised individuals and groups: the “unseen” – persons who are homeless, persons with mental health problems, or who use drugs; the “reviled and resented” – persons discriminated against on the basis of race, ethnicity or religious identity, indigenous peoples and persons discriminated against on the basis of gender or gendered roles; and the “underserving” – refugees and other migrants. Arbitrary detention does so in several ways:

  • It keeps people already on the fringes of society locked away and, in so doing, prevents them from being able to confront the society socially and politically.

  • It pathologises and punishes “degenerate” behaviour, to censure it and progressively erase it from existence.

  • It makes hierarchies more fixed by punishing those that try to subvert them.

  • It blocks new people from joining the society.

The logic has been about locking the doors to the imagined community so others cannot taint the vision of what is imagined. The spatial imagery is about borders, barriers, distinctions. There is a desire to exclude aspects of subjectivity that one refuses to acknowledge. And the result is the reduced toleration of marginalised groups in the community – a dystopic denial of their ‘grievability’.263

Human rights law prohibits arbitrary detention and its mechanisms have had ample opportunity to consider the practice in all its diversity and complexity. But we can see that the law is struggling under the neoliberal weight of what is being thrown at it and the courts have generally been incapable whether because of mandate, formalism or conservatism to address what is largely systemic, intersectional discriminatory treatment. Certainly, the courts have been capable of identifying arbitrary treatment in individual cases. However, they are not managing to address the foundational issues about the over-representation of marginalised groups in detention. Nor do they manage to oppose resolutely, or even clearly, all phenomena of arbitrary detention.

Courts are simply finding new ways to process persons that offend the sensibilities of the status quo and legitimise the discriminatory carceral state in the process. Consequently, the law shows itself incapable of being more than a fleeting comfort. As Iris Marion Young has said in a different time and place, but with words that still resonate:

Social change to break the cycle of exclusion and disadvantage that women, people of color, disabled people, gay men and lesbians, old people, and others suffer will not be aided by the law unless courts are willing to require forward-looking remedies of institutions whose unconscious and unintended actions contribute to that disadvantage.264

Aside from some important exceptions in discrete areas, where the affected groups themselves have pushed their ways through the stagnancy of the law, such as the progressive recognition of the agency and autonomy of persons with disabilities or the taking into account of indigenous experiences of marginalisation and colonialism in sentencing, there has been an inability to identify, stop and change behaviour. The law is simply stirring the pot.

1

Michel Foucault, Discipline and Punish: the Birth of the Prison (trans. Alan Sheridan) (Penguin 2020) 194.

2

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (trans. Daniel Heller-Roazen) (Stanford University Press 1998) 28–29, 126.

3

Stephen Humphreys, ‘Legalizing Lawlessness: on Giorgio Agamben’s State of Exception’ (2006) 17(3) Eur J Intl L 677, 687.

4

Giorgio Agamben, State of Exception (trans. Kevin Attell) (University of Chicago Press 2005) 2. See, also, Claudio Minca, ‘Giorgio Agamben and the New Biopolitical Nomos’ (2006) 88(4) Geografiska Annaler. Series B, Human Geography 387–403.

5

Judith Butler, ‘Indefinite Detention’ (2020) 29(1) qui parle 15, 16.

6

Judith Butler, Precarious Life: the Powers of Mourning and Violence (Verso 2004).

7

Arendt refers to this right as ‘the right of every individual to belong to humanity’: Hannah Arendt, The Origins of Totalitarianism (Penguin 2017 [1951]) 390.

8

Michel Foucault, Society Must be Defended, Lecture Series at the Collège de France, 1975–76 (trans. D Macey) (Picador 2003) 62.

9

Agamben, Homo Sacer (n 2) 171.

10

Ibid. See, also, Giorgio Agamben, Remnants of Auschwitz: the Witness and the Archive (Zone Books 1999).

11

Minca (n 4). See, also, Richard Ek, ‘Giorgio Agamben and the Spatialities of the Camp: an Introduction’ (2006) 88(4) Geografiska Annaler. Series B, Human Geography 363; Nick Vaughan-Williams, ‘Borders, Territory, Law’ (2008) 2 Intl Political Sociology 322.

12

Agamben, State of Exception (n 4); Derek Gregory, ‘The Black Flag: Guantánamo Bay and the Space of Exception’ (2006) 88(4) Geografiska Annaler. Series B, Human Geography 405–427; Claudia Aradau, ‘Law Transformed: Guantanamo and the “Other” Exception’ (2007) 28(3) Third World Quarterly 489–501.

13

Didier Bigo, ‘Detention of Foreigners, States of Exception, and the Social Practices of Control of the Banopticon’, in PK Rajaram and C Grundy-Warr (eds), Borderscapes: Hidden Geographies and Politics at Territory’s Edge (University of Minnesota Press 2007) 57; Suvendrini Perera, ‘What is a Camp?’ (2002) 1(1) Borderlands e-journal 1; Joseph Pugliese, ‘The Tutelary Architecture of Immigration Detention Prisons and the Spectacle of “Necessary Suffering”’ (2008) 13(2) Architectural Theory Review 206.

14

Andrew Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Hart 2011) 3.

15

See, generally, David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (University of Chicago Press 2001).

16

Douglas Husak, Overcriminalization: the Limits of the Criminal Law (OUP 2008) 122–132.

17

Simester and von Hirsch (n 14) 19–32.

18

Elizabeth Kiely and Katharina Swirak, The Criminalisation of Social Policy in Neoliberal Societies (Bristol University Press 2022).

19

Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1 (OUP 1987), ‘General Introduction’ 22–25.

20

Guillem Fernàndez Evangelista, ‘Penalising Homelessness in Europe’, in Helmut Gaisbauer, Gottfried Schweiger and Clemens Sedmak (eds) Absolute Poverty in Europe: Interdisciplinary Perspectives on a Hidden Phenomenon (Policy Press 2019) 315–334, 320.

21

Evangelista (n 20) 329.

22

Harry Blagg and Thalia Anthony, Decolonising Criminology: Imagining Justice in a Postcolonial World (Palgrave Macmillan 2019) 188.

23

UNGA, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’, UN Doc A/65/255 (6 August 2010) para 62. See, also, International Commission of Jurists, ‘The 8 March Principles for a Human Rights-Based Approach to Criminal Law: Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty’ (March 2023).

24

Dipika Jain, ‘Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach’ (2019) 12(1) NUJS L Rev 21–42; Michael Rekart, ‘Sex-Work Harm Reduction’ (2005) 366 Lancet 2123–2134; Pippa Grenfell et al, ‘Policing and Public Health Interventions into Sex Workers’ Lives: Necropolitical Assemblages and Alternative Visions of Social Justice’ (2022) Critical Public Health 1; Human Rights Watch (HRW), ‘Off the Streets: Arbitrary Detention and Other Abuses against Sex Workers in Cambodia’ (19 July 2010).

25

UNGA, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ (n 23) paras 19–29. See, also, Rick Lines, ‘“Deliver us from evil” – the Single Convention on Narcotic Drugs, 50 Years on’ (2010) 1 Intl J Hum Rts & Drug Policy 3.

26

UNGA, ‘Report of the Special Rapporteur on the Human Rights of Migrants’ (the impact of the criminalization of migration on the protection and enjoyment of human rights) UN Doc A/65/222 (3 August 2010) para 16.

27

The Lammy Review: an Independent Review into the Treatment of, and Outcomes for, Black, Asian, and Minority Ethnic Individuals in the Criminal Justice System (8 September 2017) <www.gov.uk/government/publications/lammy-review-final-report> accessed 22 July 2023.

28

Fair Trials, Automating Injustice: the Use of Artificial Intelligence and Automated Decision-Making Systems in Criminal Justice in Europe (2021) <www.fairtrials.org/app/uploads/2021/11/Automating_Injustice.pdf> accessed 22 July 2023; Osonde Osoba and William Welser IV, An Intelligence in Our Image: the Risks of Bias and Errors in Artificial Intelligence (Rand Corp 2017) <www.rand.org/pubs/research_reports/RR1744.html> accessed 22 July 2023.

29

Sir William Macpherson, The Stephen Lawrence Inquiry: Report of an Inquiry (Home Office 1999) para 6.34.

30

Lammy Review (n 27); Marianne Nielsen and Linda Robyn, ‘Colonialism and Criminal Justice for Indigenous Peoples in Australia, Canada, New Zealand and the United States of America’ (2003) 4(1) Indigenous Nations Studies J 29.

31

UNGA, ‘Report of the Special Rapporteur on the Rights of Persons with Disabilities’ (thematic study on disability-specific forms of deprivation of liberty) UN Doc A/HRC/40/54 (11 January 2019) paras 33, 45; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Criminal Justice System: Issues Paper (January 2020) <https://disability.royalcommission.gov.au/system/files/2022–03/Issues%20paper%20-%20Criminal%20justice%20system.pdf> accessed 22 July 2023.

32

Julia Winkler and Lotta Mayr, ‘A Legal Vacuum: the Systematic Criminalisation of Migrants for Driving a Boat or Car to Greece’ (Borderline Europe July 2023) 25.

33

Michael Gottfredson, ‘An Empirical Analysis of Pre-Trial Release Decisions’ (1974) 2 J Crim Justice 287, 288.

34

Brandon Martinez, Nick Petersen and Marisa Omori, ‘Time, Money, and Punishment: Institutional Racial-Ethnic Inequalities in Pretrial Detention and Case Outcomes’ (2019) 66 (6–7) Crime & Delinquency 837.

35

WGAD, Opinion No 72/2017 Concerning Marcos Antonio Aguilar-Rodríguez (United States of America) UN Doc A/HRC/WGAD/2017/72 (28 December 2017) para 67.

36

Martin Schönteich, Presumption of Guilt: the Global Overuse of Pretrial Detention (Open Society Justice Initiative 2014) 33.

37

Michael Klarman, ‘The Racial Origins of Modern Criminal Procedure’ (2000) 99(1) Michigan L Rev 48; Sonja Starr, ‘Evidence-Based Sentencing and the Scientific Rationalization of Discrimination’ (2014) 66(4) Stanford Law Rev 803.

38

Svend Brinkmann, ‘The Pathologization of Morality’, in Kieran Keohane and Anders Petersen (eds), The Social Pathologies of Contemporary Civilization (Ashgate 2013) 103, 107.

39

Svend Brinkmann, Diagnostic Cultures: a Cultural Approach to the Pathologization of Modern Life (Routledge 2016) 13–14, 23–25.

40

Alison Howell, ‘Victims or Madmen? The Diagnostic Competition over “Terrorist” Detainees at Guantánamo Bay’ (2007) 1 Intl Political Sociology 29, 31.

41

Sander Gilman, Difference and Pathology: Stereotypes of Sexuality, Race, and Madness (Cornell University Press 1985) 233.

42

Jeff Coulter, The Social Construction of Mind (Macmillan 1979) 149.

43

Joanna Moncrieff, ‘Psychiatric Diagnosis as a Political Device’ (2010) 8 Soc Theory Health 370, 373.

44

Winterwerp v Netherlands App No 6301/73 (ECtHR, 24 October 1979) para 39. See Art 14(1)(b) Convention on the Rights of Persons with Disabilities (CRPD) (adopted 13 December 2006, entered into force 3 May 2008); CRPD Committee, ‘Guidelines on Article 14 of the CRPD’, in Report of the CRPD Committee, UN Doc A/72/55 (2016) Annex.

45

Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (2017) 40 Melb Univ Law Rev 816.

46

HRW, ‘Libya: a Threat to Society? The Arbitrary Detention of Women and Girls for “Social Rehabilitation”’ (February 2006).

47

Christina Quinlan, ‘Women, Imprisonment and Social Control’, in Deirdre Healy (ed), The Routledge Handbook of Irish Criminology (Routledge 2015) 500–521. See, also, Frances Finnegan, Do Penance or Perish: Magdalen Asylums in Ireland (OUP 2004).

48

HRC, Arbitrary Detention Relating to Drug Policies UN Doc A/HRC/47/40 (18 May 2021) para 87.

49

Rick Lines, Julie Hannah and Giada Girelli, ‘“Treatment in Liberty” Human Rights and Compulsory Detention for Drug Use’ (2022) 22 Hum Rts L Rev 1.

50

HRC, Arbitrary Detention Relating to Drug Policies (n 48) para 83.

51

HRC, Arbitrary Detention Relating to Drug Policies (n 48) para 88.

52

Though in this respect Howell finds the alternative narrative put forward by human rights and humanitarian organisations of the traumatised victims driven to suicide equally pathologising. See Howell (n 40) 38–41.

53

Howell (n 40) 30.

54

Howell (n 40) 35, 37.

55

See, for example, Gorobet v Moldova App No 30951/10 (ECtHR, 11 October 2011) para 52 (finding a violation of Art 3 and holding that there was ‘no medical necessity to subject the applicant to psychiatric treatment’ and noting the considerable duration of the medical treatment, that the applicant was denied contact with the outside world during his confinement, and finding that ‘such unlawful and arbitrary treatment was at the very least capable to arouse in the applicant feelings of fear, anguish and inferiority’).

56

Antony Duff, ‘Pre-Trial Detention and the Presumption of Innocence’, in Andrew Ashworth, Lucia Zedner and Patrick Tomlin (eds), Prevention and the Limits of Criminal Law (OUP 2013) 128–131.

57

Jeremy Bentham, The Principles of Morals and Legislation (Prometheus Books 1988 [1789]) 1; Johs Andenaes, ‘General Prevention-Illusion or Reality?’ (1952) 43 J Crim L, Criminology & Police Sci 176; Jack Gibbs, ‘Crime, Punishment and Deterrence’ (1968) 48 Southwestern Soc Sci Q 515, 515–516.

58

See, for example, Emily Ryo, ‘Detention as Deterrence’ (2019) 71 Stanford L Rev 237; Athula Pathinayake, ‘Contextualizing Specific Deterrence in an Era of Mass Incarceration’ (2019) 18(2) Conn Public Interest LJ 359; Aaron Chalfin and Justin McCrary, ‘Criminal Deterrence: a Review of the Literature’ (2017) 55(1) J Economic Literature 5.

59

Donald Ritchie, ‘Sentencing Matters Does Imprisonment Deter? A Review of the Evidence’ (Victoria Sentencing Advisory Council April 2011) 17.

60

Robyn Sampson, ‘Does Detention Deter? Reframing Immigration Detention in Response to Irregular Migration’ (April 2015) International Detention Coalition Briefing Paper 1; Ryo (n 58).

61

Ian Urbina, ‘The Secretive Prisons That Keep Migrants Out of Europe’, The New Yorker (6 December 2021); HRC, ‘Report of the Independent Fact-Finding Mission on Libya’, UN Doc A/HRC/52/83 (3 March 2023) paras 40–53.

62

Luca Queirolo Palmas, ‘Frontera Sur: Behind and Beyond the Fences of Ceuta and Melilla’ (2021) 22(4) Ethnography 451; ND and NT v Spain (Grand Chamber) App Nos 8675/15, 8697/15 (ECtHR, 13 February 2020), effectively holding that Spain was justified in pushing back refugees and migrants at the Spanish–Moroccan border.

63

Madeline Gleeson and Natasha Yacoub, ‘Cruel, Costly and Ineffective: the Failure of Offshore Processing in Australia’, Kaldor Centre for International Refugee Law (August 2021) <www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf> accessed 30 July 2023.

64

Sharon Pickering and Leanne Weber, ‘New Deterrence Scripts in Australia’s Rejuvenated Offshore Detention Regime for Asylum Seekers’ (2014) 39(4) Law & Social Inquiry 1006, 1006.

65

Liz Fekete, ‘The Globalisation of Indifference’, Institute of Race Relations (20 March 2014) <https://irr.org.uk/article/the-globalisation-of-indifference/> accessed 22 July 2023.

66

Pickering and Weber (n 64) 1016.

67

UNODC, ‘Global Study on Smuggling of Migrants’ (2018) 12.

68

Ibid.

69

Sharon Pickering and Christine Lambert, ‘Deterrence: Australia’s Refugee Policy’ (2002) 14(1) Current Issues in Criminal Justice 65.

70

As there are no crimes involved, there are only limited recognised rationales to detain refugees or other migrants: to establish the migrant’s identity, where a specific migrant is believed to present a risk to public security, poses a risk of absconding or detention is needed to ensure the presence of the migrant at hearings, or to comply deportation or expulsion orders. See, for example, Human Rights Committee, ‘General Comment No 35: Article 9: Liberty and Security of Person’, UN Doc CCPR/C/GC/35 (16 December 2014) para 18.

72

Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 2011) 59.

73

Peter Hopkins, ‘Social Geography I: Intersectionality’ (2019) 43(5) Progress in Human Geography 937–947.

74

Discussed in Chapter 2.

75

HRC, ‘Methods of Work of the WGAD’, UN Doc A/HRC/36/38 (13 July 2017); Leigh Toomey, ‘Detention on Discriminatory Grounds: an Analysis of the Jurisprudence of the United Nations WGAD’ (2018) 50(1) Columbia Hum Rts L Rev 185.

76

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976).

77

HRC, ‘Report of the WGAD’, UN Doc A/HRC/36/37 (19 July 2017) para 48.

78

See, for example, Garland (n 15); Bronislaw Geremek, Poverty: a History (English trans Agniezska Kolakowska, Wiley-Blackwell 1994); Loïc Wacquant, Punishing the Poor: the Neoliberal Government of Social Insecurity (Duke University Press 2009).

79

Purohit and Moore v Gambia, Comm No 241/2001 (ACommHPR, 16th Activity Report 2002–2003 Annex VII) para 64.

80

African Court on Human and Peoples’ Rights (ACtHPR), ‘The Compatibility of Vagrancy Laws with the African Charter on Human and Peoples’ Rights and Other Human Rights Instruments Applicable in Africa’, Advisory Opinion No 001/2018 (4 December 2020) para 79.

81

Ibid para 80. See, also, ACommHPR, ‘Principles on the Decriminalisation of Petty Offences in Africa’ (2017) <http://apcof.org/wp-content/uploads/apcof-principles-on-the-decriminalisation-of-petty-offences-in-africa-eng-fr-pr-ar.pdf> accessed 23 July 2023, para 7.

82

Purohit and Moore v Gambia (n 79) para 59.

83

CRPD.

84

Karen Dolan, The Poor Get Prison: the Alarming Spread of the Criminalization of Poverty (Institute for Policy Studies 2015).

85

Lee Beier and Paul Ocobock (eds), Cast Out: Vagrancy and Homelessness in Global and Historical Perspective (Ohio University Press 2008); Christopher Roberts, ‘Vagrancy and Vagrancy-Type Laws in Colonial History and Today’, Transnational Legal History Group (City University Hong Kong 2022).

86

Leslie Sebba, ‘The Creation and Evolution of Criminal Law in Colonial and Post-Colonial Societies’ (1999) 3 Crime, Hist & Soc’y 71.

87

UNGA, ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights’, UN Doc A/66/265 (4 August 2011) para 29. See, also, Antonio Tosi, ‘Homelessness and the Control of Public Space – Criminalising the Poor?’ (2007) 1 Eur J Homelessness 225, 226.

88

Tosi (n 87) 226.

89

UNGA, ‘Guidelines for the Implementation of the Right to Adequate Housing’ UN Doc A/HRC/43/43 (26 December 2019) para 35.

90

ACtHPR, ‘The Compatibility of Vagrancy Laws with the African Charter’ (n 80); Lukas Muntingh and Kristen Petersen, ‘Punished for Being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences’ (Dullah Omar Institute and Pan-African Lawyers Union 2015).

91

Simon Springer, ‘The Violence of Homelessness: Exile and Arbitrary Detention in Cambodia’s War on the Poor’ (2020) 61 Asia Pacific Viewpoint 3; International Commission of Jurists, ‘Sri Lanka’s Vagrants Ordinance No 4 of 1841: a Colonial Relic Long Overdue for Repeal’ (December 2021).

92

Roberts (n 85).

93

Roberts (n 85).

94

Springer (n 91) 4.

95

UN Commission on Human Rights, ‘Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living’, UN Doc E/CN.4/2005/48 (3 March 2005) paras 21–63.

96

See, for example, Gopalanachari v State of Kerala 1981 AIR 674, 1981 SCR (1)1271: ‘personal liberty is a prized value […] the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case, but on convincing testimony of clear and present danger to society’. See, also, Gwanda v S (Constitutional Cause 5 of 2015) [2017] MWHC 23 (10 January 2017) (striking down as unconstitutional the section of the Malawi criminal code which made it an offence to be a “rogue” or a “vagabond”); The Sex Worker Education and Advocacy Taskforce v Minister of Safety and Security (3378/07) [2009] ZAWCHC 64; 2009 (6) SA 513 (WCC) (20 April 2009) (the police practice of arresting women who engage in sex work, for purposes of harassing and punishing them, without any legitimate reason or intention to have them prosecuted is unlawful). See, also, King v Attorney General [1981] IR 233; Papachristou v City of Jacksonville 92 SCt 839 (1972).

97

For instance, in Njemanze v Nigeria the ECOWAS (Economic Community of West African States) Court of Justice determined that the arbitrary detention of women labelled prostitutes because they were on the street late at night violated the women’s human rights under the Charter, the Women’s Rights Protocol, and various international human rights instruments: Njemanze v Nigeria, No ECW/CCJ/JUD/08/17 (12 October 2017). See, also, ACtHPR, ‘The Compatibility of Vagrancy Laws with the African Charter’ (n 80); Villagran Morales v Guatemala (Merits) Series C No 63 (IACtHR, 19 November 1999) (regarding the arbitrary detention, abduction and/or murder of children living on the streets); Lăcătuş v Switzerland App No 14065/15 (ECtHR, 19 January 2021) (finding a violation of the right to privacy in respect to the criminalisation of begging, the Court holding that a custodial sentence, which was liable to further increase an individual’s distress and vulnerability, had been almost automatic and inevitable was not capable of justification in the public interest).

98

See, for example, UNGA, ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights on his Mission to the United States of America’, UN Doc A/HRC/38/33/Add.1 (4 May 2018) para 45; Human Rights Committee, ‘Concluding Observations on the Third Periodic Report of Cambodia’, UN Doc CCPR/C/KHM/CO/3 (18 May 2022) paras 28, 29; WGAD, Preliminary Findings from Its Visit to Sri Lanka, UN Doc A/HRC/39/45/Add.2 (23 July 2018) paras 61, 64, 66.

99

ACtHPR, ‘The Compatibility of Vagrancy Laws with the African Charter’ (n 80) paras 85, 86.

100

Ibid.

101

Ibid.

102

UNGA, ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights on his Mission to the USA’, UN Doc A/HRC/38/33/Add.1 (4 May 2018) para 45.

103

CRPD (n 44).

104

Purohit and Moore (n 79) para 62.

105

Winterwerp v Netherlands App No 6301/73 (ECtHR, 24 October 1979) para 39. See, also, A v New Zealand, UN Doc CCPR/C/66/D/754/1997 (3 August 1999).

106

Winterwerp (n 105) para 37.

107

Purohit and Moore (n 79) para 66.

108

Human Rights Committee, General Comment No 35 (n 70) para 19.

109

Stanev v Bulgaria (Grand Chamber) App No 36760/06 (ECtHR, 17 January 2012) para 153.

110

The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care provide: ‘Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility’ (Principle 20(3) UNGA res 46/119 (17 December 1991)). See, similarly, Council of Europe, ‘Recommendation No REC(2004)10 of the Committee of Ministers to Member States Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disorder and Its Explanatory Memorandum’ (22 September 2004) paras 18–26. The Human Rights Committee’s General Comment No 35 ((n 70) para 19) provides a helpful outline of measures designed to avoid arbitrary detention in mental health settings, though it avoids recommending an outright ban on involuntary detention. The Inter-American Commission on Human Rights (IACommHR) has taken a similar approach to the Human Rights Committee: ‘health systems […] shall apply […] with a view to gradually de-institutionalizing these people, and organizing alternative service models that facilitate the achievement of objectives that are compatible with an integrated, continuing, preventative, participatory, and community-based psychiatric care and health system, and in this way avoid unnecessary deprivation of liberty in hospitals or other institutions’ (IACommHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Resolution 1/08 (13 March 2008) Principle III(3)).

111

HL v United Kingdom App No 45508/99 (ECtHR, 5 October 2004).

112

Purohit and Moore (n 79) para 72.

113

A v New Zealand (n 105) paras 7.2, 7.3.

114

LB v Belgium App No 22831/08 (ECtHR, 2 October 2012). See, similarly, Claes v Belgium App No 43418/09 (ECtHR, 10 January 2013).

115

Lucy Series, Deprivation of Liberty in the Shadows of the Institution (Bristol University Press 2022) 98–99.

116

CRPD Committee, Guidelines on Article 14 of the CRPD, UN Doc A/72/55 (2016) Annex para 10.

117

WGAD, ‘UN Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court’, UN Doc A/HRC/30/37 (6 July 2015) Principle 20 para 38, which reminds of states’ ‘obligation to prohibit involuntary committal or internment on the grounds of the existence of an impairment or perceived impairment, particularly on the basis of psychosocial or intellectual disability or perceived psychosocial or intellectual disability, as well as [with] their obligation to design and implement de-institutionalization strategies based on the human rights model of disability.’ The WGAD has determined similarly in its individual opinions. See, for example, WGAD, Opinion No 70/2018 Concerning Ms. H (whose name is known by the Working Group) (Japan), UN Doc A/HRC/WGAD/2018/70 (16 January 2019) para 50; Opinion No 8/2018 Concerning Mr. N (whose name is known by the Working Group) (Japan), UN Doc A/HRC/WGAD/2018/8 (23 May 2018) para 46.

118

Leo v Australia, UN Doc CRPD/C/22/D/17/2013 (18 October 2019). See, also, the earlier case of Noble v Australia, UN Doc CRPD/C/16/D/7/2012 (10 October 2016).

119

Leo v Australia (n 118) para 2.4.

120

Ibid paras 8.4–8.7.

121

Ibid para 8.8.

122

Tina Minkowitz, ‘Why Mental Health Laws Contravene the CRPD – An Application of Article 14 with Implications for the Obligations of States Parties’ (2011) SSRN Electronic Journal <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1928600> accessed 23 July 2023.

123

Ibid.

124

WHO/OHCHR, ‘Guidance on Mental Health, Human Rights and Legislation’ (Draft June 2022) 52.

125

HRC, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’, UN Doc A/HRC/35/21 (28 March 2017) para 95(b).

126

Art 12 CRPD.

127

Art 12(4) CRPD.

128

Leo v Australia (n 118) para 8.6. On the fallout associated with the Committee’s stance on legal capacity and supported decision-making, see, George Szmukler, ‘“Capacity”, “Best Interests”, “Will and Preferences” and the UN Convention on the Rights of Persons with Disabilities’ (2019) 18 World Psychiatry 34.

129

HRC, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’, UN Doc A/HRC/22/53 (1 February 2013) para 64.

130

UNODC and UNAIDS, Compulsory Drug Treatment and Rehabilitation in East and Southeast Asia (2022).

131

UNGA, ‘Report of the Special Rapporteur on Torture Juan E. Méndez’ (n 129) para 40.

132

Arbitrary Detention Relating to Drug Policies (n 48) paras 3, 82–97.

133

UNODC and UNAIDS (n 130) 6.

134

Thirteen UN agencies, ‘Joint Statement: Compulsory Drug Detention and Rehabilitation Centres in Asia and the Pacific in the Context of COVID-19’ (1 June 2020) <https://unaidsapnew.files.wordpress.com/2020/05/unjointstatement1june2020.pdf> accessed 23 July 2023; ‘Joint Statement: Compulsory Drug Detention and Rehabilitation Centres’ (March, 2012) <www.unodc.org/documents/southeastasiaandpacific/2012/03/drug-detention-centre/JC2310_Joint_Statement6March12FINAL_En.pdf> accessed 23 July 2023.

135

Daniel Wolfe and Roxanne Saucier, ‘Not Enough Stick? Drug Detention and the Limits of UN Norm Setting’ (2022) 24(1) Health Hum Rights 175.

136

Rick Lines, Julie Hannah and Giada Girelli, ‘“Treatment in Liberty” Human Rights and Compulsory Detention for Drug Use’ (2022) 22 Hum Rts L Rev 1.

137

Arbitrary Detention Relating to Drug Policies (n 48) paras 17–20. On the automatic imposition of pre-trial detention, see WGAD, Opinion No 75/2018 Concerning Gerardo Pérez Camacho (Mexico), UN Doc A/HRC/WGAD/2018/75 (11 February 2019) para 78.

138

International Guidelines on Human Rights and Drug Policy (2019) <www.humanrights-drugpolicy.org> accessed 23 July 2023, Principle 7(ii).

139

WGAD, Opinion No 60/2019 Concerning four minors (Minors A, B, C and D, whose names are known to the Working Group) (Belarus), UN Doc A/HRC/WGAD/2019/60 (23 July 2020) para 129; Opinion No 90/2018 Concerning Mohd Redzuan Bin Saibon (Malaysia), UN Doc A/HRC/WGAD/2018/90 (31 January 2019) para 51.

140

Arbitrary Detention Relating to Drug Policies (n 48) paras 36–40. See, also, UNGA, ‘Report of the Special Rapporteur on the Right to Health’ (n 23) paras 62–69, where the Special Rapporteur encourages states to consider decriminalisation. Decriminalisation of drug possession for personal use, and to promote the principle of proportionality is also aligned with the UN system common position supporting the implementation of the international drug control policy through effective inter-agency collaboration, UN Doc CEB/2018/2, Annex I (2018) and with the ACommHPR, Principles on the Decriminalisation of Petty Offences in Africa (n 81).

141

Acosta Martínez et al v Argentina (Merits, Reparations and Costs) Series C No 410 (31 August 2020) para 87.

142

IACommHR, ‘Report on Measures Aimed at Reducing the Use of Pretrial Detention in the Americas’, OEA/Ser.L/V/II.163 Doc 105 (3 July 2017) para 9.

143

Ibid para 28. See, also, para 90.

144

Arbitrary Detention Relating to Drug Policies (n 48) paras 51–71.

145

HRW, ‘Somsanga’s Secrets Arbitrary Detention, Physical Abuse, and Suicide inside a Lao Drug Detention Centre’ (2011) 11.

146

See for similar concerns expressed by HRW in respect to Cambodia and Vietnam, HRW, ‘They Treat Us Like Animals’ Mistreatment of Drug Users and ‘Undesirables’ in Cambodia’s Drug Detention Centers (2013) 21; HRW, The Rehab Archipelago: Forced Labor and Other Abuses in Drug Detention Centers in Southern Vietnam (2011).

147

Elaine Scarry, ‘The Difficulty of Imagining Other Persons’, in Martha Nussbaum (ed), For Love of Country?: a New Democracy Forum on the Limits of Patriotism (Beacon Press 2002) 98.

148

Scarry (n 147) 102.

149

Stephanie Wildman and Adrienne Davis, ‘Language and Silence: Making Systems of Privilege Visible’, in Richard Delgado and Jean Stefancic (eds), Critical Race Theory: the Cutting Edge (3rd edn,Temple University Press 2013) 794, 795.

150

World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration (31 August – 8 September 2001) para 25.

151

CERD Committee, ‘General Recommendation 31 on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System’, UN Doc A/60/18 (2005) preamble.

152

Ibid 3.

153

Ibid 9.

154

See, for example, WGAD, Opinion No 8/2021 Concerning Layan Kayed, Elyaa Abu Hijla and Ruba Asi (Israel), UN Doc A/HRC/WGAD/2021/8 (7 June 2021) (involving the targeting of female Palestinian students); Opinion No 7/2018 Concerning Vital Ndikumwenayo et al (Burundi), UN Doc A/HRC/WGAD/2018/7 (27 August 2018) (involving harassment of soldiers belonging to the Tutsi ethnic group); Opinion No 29/2017 Concerning Aramais Avakyan (Uzbekistan), UN Doc A/HRC/WGAD/2017/29 (8 June 2017) (concerning the consistent practice of punishing Armenian Christians in Uzbekistan for their faith); Opinion No 36/2016 Concerning Biram Dah Abeid, Brahim Bilal Ramdane and Djibril Sow (Mauritania), UN Doc A/HRC/WGAD/2016/36 (28 December 2016) (discrimination against the Haratine minority in Mauritania); Opinion No 24/2014 Concerning La Ring (Myanmar), UN Doc A/HRC/WGAD/2014/24 (21 November 2014) (consistent with the numerous arrests of Kachins and serious allegations of human rights abuses against villagers from Kachin); Opinion No 9/2017 Concerning Hana Aghighian et al (Iran), UN Doc A/HRC/WGAD/2017/9 (29 May 2017) (pattern of religious discrimination against Bahai’s, coupled with a failure to recognise the group as a protected religious minority in the Constitution, unlike other minorities).

155

WGAD, Opinion No 40/2020 Concerning Jean Claude Hamenyimana (Burundi), UN Doc A/HRC/WGAD/2020/40 (2 October 2020) (insults against the Tutsi ethnicity); Opinion No 50/2013 Concerning Laphai Gam (Myanmar), UN Doc A/HRC/WGAD/2013/50 (2 April 2014) (forced to stand in a crucifixion position, during which time he was subjected to mocking statements about his Christian faith); Opinion No 37/2012 Concerning Adnam El Hadj (Spain), UN Doc A/HRC/WGAD/2012/37 (26 November 2012) (racist insults).

156

WGAD, Opinion No 71/2020 Concerning Mohammad Qais Niazy (Australia), UN Doc A/HRC/WGAD/2020/71 (12 February 2021).

157

UNGA, ‘Report of the WGAD on its Visit to the USA’, UN Doc A/HRC/36/37/Add.2 (17 July 2017) para 50.

158

Ibid para 58.

159

Ibid para 59.

160

Quentin Liger and Mirja Guhteil, ‘Protection against Racism, Xenophobia and Racial Discrimination, and the EU Anti-Racism Action Plan’, European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs, PE 730.304 (May 2022) 33.

161

Ibid, 50, 167, 189.

162

Council of Europe Commissioner for Human Rights, ‘Ethnic Profiling: a Persisting Practice in Europe’ (9 May 2019).

163

Parliamentary Assembly of the Council of Europe (PACE), ‘Abuse of Pretrial Detention in States Parties to the European Convention on Human Rights’, Doc 13863 (7 September 2015) paras 8 and 12.1.4.

164

Organisation Contre la Torture v Rwanda, Comm Nos 27/89, 46/91, 49/91, and 99/93 (ACommHPR, October 1996) para 28.

165

Rosalind Williams Lecraft v Spain, UN Doc CCPR/C/96/D/1493/2006 (17 August 2009) para 7.2.

166

Acosta Martínez et al v Argentina (Merits, Reparations and Costs) Series C No 410 (31 August 2020) para 94.

167

Ibid para 100.

168

Timishev v Russia App Nos 55762/00, 55974/00 (ECtHR, 13 December 2005) paras 56–59. See, also, Gillan and Quinton v United Kingdom App No 4158/05 (ECtHR, 12 January 2010) para 85.

169

Timishev (n 168) para 58.

170

A v United Kingdom (Grand Chamber) App No 3455/05 (ECtHR, 19 February 2009).

171

Tomasi v France App No 12850/87 (ECtHR, 27 August 1992) para 87.

172

Lingurar v Romania App No 48474/14 (ECTHR, 16 April 2019) para 80.

173

Basu v Germany App No 215/19 (ECtHR, 18 October 2022).

174

Muhammad v Spain App No 34085/17 (ECTHR, 18 October 2022).

175

Muhammad v Spain (n 174).

176

Julie Ringelheim, ‘Basu v. Germany and Muhammad v. Spain: Why the First European Court of Human Rights’ Judgments on Racial Profiling in Identity Checks Are Disappointing’, EJIL:Talk! (7 February 2023).

177

Basu v Germany (n 173) para 38.

178

Ibid, partly dissenting opinion of Judge Pavli.

179

Ibid, partly dissenting opinion of Judge Pavli, para 21.

180

Chris Cunneen and Juan Tauri, Indigenous Criminology (Bristol University Press 2016) 46.

181

HRC, UN Expert Mechanism on the Rights of Indigenous Peoples, ‘Advice No 5 (2013): Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples’, in ‘Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples’ UN Doc A/HRC/24/50 (30 July 2013) Annex.

182

HRC, ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples’, UN Doc A/HRC/42/37 (2 August 2019) para 42.

183

This is canvassed in Chapter 5: Deterring Dissent.

184

ILO Indigenous and Tribal Peoples Convention (No. 169) (adopted 27 June 1989, entered into force 5 September 1991); UN Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295 (13 September 2007); American Declaration on the Rights of Indigenous Peoples, AG/RES. 2888 (XLVI-O/16) (15 June 2016).

185

CERD Committee, General Recommendation 31 (n 151) para 36. This recommendation to implement measures to reduce the number of indigenous persons in prison, including non-custodial options, such as traditional restorative and rehabilitative approaches, has also been part of the country recommendations of the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). See, for example, EMRIP, Country Engagement Mission (8–13 April 2019) – New Zealand (14 July 2019) para 23.

186

WGAD, Opinion No 35/2021 Concerning Juana Alonzo Santizo (Mexico), UN Doc A/HRC/WGAD/2021/35 (4 November 2021).

187

See, for example, WGAD, Opinion No 64/2018 Concerning Francisca Linconao Huircapán (Chile), UN Doc A/HRC/WGAD/2018/64 (28 February 2019); WGAD, Opinion No 18/2015 Concerning Pedro Celestino Canché Herrera (Mexico), UN Doc A/HRC/WGAD/2015/18 (13 July 2015).

188

See, for example, López Álvarez v Honduras (Merits, Reparations, and Costs) Series C No 141 (1 February 2006) paras 67, 75; Norín Catrimán et al v Chile (Merits, Reparations, and Costs) Series C No 279 (29 May 2014).

189

Yakye Axa Indigenous Community v Paraguay (Merits, Reparations and Costs) Series C No 125 (17 June 2005) para 51.

190

Norín Catrimán et al v Chile (n 188).

191

Ibid paras 310–312.

192

Ibid para 357.

193

HRC, UN EMRIP, ‘Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples’ (n 181) para 48.

194

Bugmy v The Queen [2013] HCA 37.

195

R v Fernando (1992) 76 A Crim R 58.

196

Janet Manuell SC, ‘The Fernando Principles: the Sentencing of Indigenous Offenders in NSW’, Discussion Paper prepared for the NSW Sentencing Council (December 2009) <www.publicdefenders.nsw.gov.au/Documents/sentencing_indigenous_offenders_nsw.pdf> accessed 24 July 2023.

197

Anthony Hopkins, ‘The Relevance of Aboriginality in Sentencing: “Sentencing A Person for Who They Are”’ (2012) 16(1) Austr Indigenous L Rev 37.

198

Cunneen and Tauri (n 180) 115.

199

R v Gladue [1999] 1 SCR 688. See, also, R v Ipeelee [2012] 1 SCR 433.

200

Gladue (n 199) para 93.

201

See, however, R v Sharma [2022] SCC 39, which upholds the constitutionality of section 742.1(c) of the Criminal Code, which made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life (and thereby making a conditional sentence unavailable to Ms Sharma despite her indigenous background and, thus, according to her, undermining the applicability of the Gladue criteria and further perpetuating the overincarceration of Indigenous people in Canada). See particularly, the R v Sharma dissent of Karakatsanis J (Martin, Kasirer and Jamal JJ concurring). Following the Sharma judgment, the Canadian Senate passed Bill C-5, which repeals the provisions on the inapplicability of conditional sentences at issue in the case. See, further, Azka Anees, ‘“Unsolicited, Unnecessary, and Contrary to Stare Decisis”: Dissent Criticizes SCC’s Majority Opinion in R v Sharma’ (12 December 2022) <www.thecourt.ca/unsolicited-unnecessary-and-contrary-to-stare-decisis-dissent-criticizes-sccs-majority-opinion-in-r-v-sharma/> accessed 24 July 2023.

202

Jane Dickson and Michele Stewart, ‘Risk, Rights and Deservedness: Navigating the Tensions of Gladue, Fetal Alcohol Spectrum Disorder and Settler Colonialism in Canadian Courts’ (2022) 40(1) Behavioral Sciences & the Law 14, 15.

203

Cunneen and Tauri (n 180); Efrat Arbel, ‘Rethinking the “Crisis” of Indigenous Mass Imprisonment’ (2019) 34(3) Cdn J L & Soc 437, 438.

204

Cunneen and Tauri (n 180) 119.

205

Cunneen and Tauri (n 180) 120–127.

206

Arbel (n 203) 439.

207

Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (31 March 1994). Principle 6 of the Yogyakarta Principles focuses similarly on the multiple privacy concerns associated with the denial of freedoms related to sexual orientation or gender identity. Principle 6(e) calls on states to: ‘Release all those held on remand or on the basis of a criminal conviction, if their detention is related to consensual sexual activity among persons who are over the age of consent, or is related to gender identity’: International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity, Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (Yogyakarta Principles) (2006).

208

WGAD, Opinion No 7/2002 Concerning Yasser Mohamed Salah et al. (Egypt), UN Doc E/CN.4/2003/8/Add.1 21 June (2002); Opinion No 22/2006 Concerning François Ayissi et al (Cameroon), UN Doc A/HRC/4/40/Add.1 (31 August 2006); Opinion No 14/2017 Concerning Cornelius Fonya (Cameroon), UN Doc A/HRC/WGAD/2017/14 (3 July 2017); Opinion No 20/2021 Concerning Douglas Tumuhimbise et al (Uganda), UN Doc A/HRC/WGAD/2021/20 (9 July 2021). See, also, WGAD, ‘Visit to Qatar’, UN Doc A/HRC/45/16/Add.2 (30 July 2020) paras 44, 45; ‘Visit to Bhutan’, UN Doc A/HRC/42/39/Add.1 (31 July 2019) paras 51, 52.

209

Yogyakarta Principles (n 207) Principle 7.

210

Jonathon Egerton-Peters et al, Injustice Exposed: the Criminalisation of Transgender People and its Impacts (Human Dignity Trust 2019) 14–313.

211

Azul Rojas Marín et al v Peru (Preliminary objections merits, reparations, and costs) Series C No 402 (IACtHR, 12 March 2020).

212

HRC, ‘Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity’, UN Doc A/HRC/38/43 (11 May 2018) para 48.

213

HRC, ‘Women Deprived of Liberty’, Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc A/HRC/41/33 (15 May 2019) para 23.

214

Quinlan (n 47); Finnegan (n 47).

215

HRC, ‘Deteriorating Situation of Human Rights in the Islamic Republic of Iran’, UN Doc A/HRC/S-35/L.1 (16 November 2022).

216

Opinion No 68/2019 Concerning Sara del Rosario Rogel Garcia, Berta Margarita Arana Hernandez and Evelyn Beatriz Hernandez Cruz (El Salvador), UN Doc A/HRC/WGAD/2019/68 (4 March 2020).

217

Ibid para 25.

218

Mathuri Thamilmaran, ‘Sri Lanka: Stop Unnecessary “Psychiatric Evaluations” Based on Sexual Orientation’, International Commission of Jurists (1 December 2022) <www.icj.org/sri-lanka-stop-unnecessary-psychiatric-evaluations-based-on-sexual-orientation/> accessed 26 July 2023.

219

‘Women deprived of liberty’ (n 213) para 22. See, also, Rantsev v Cyprus and Russia App No 25965/04 (ECtHR, 7 January 2010) paras 314–325.

220

Sara Malkani, ‘When Women Can’t Escape: a Gender-Sensitive Approach to Arbitrary Detention’ (2015) 30 Wis J L Gender & Soc’y 1. She argues, for example, that the WGAD ‘has not addressed the effects of cultural and religious practices that lead to women’s confinement within the home and restrict their movement in public spaces. Nor has the Working Group addressed the detention of women and girls coerced into forced marriages, or of women compelled to stay at home due to discriminatory laws that curtail their movement’ (20).

221

Agamben, Homo Sacer (n 2) 28–29, 126.

222

Pia Oberoi, ‘The Enemy at the Gates and the Enemy Within: Migrants, Social Control and Human Rights’ (International Council on Human Rights Policy, 2009).

223

This arguably engages Arts 17 and 18 ECHR in addition to Art 5, as has been argued by Garahan. See, Sabina Garahan, ‘Opening the Door to Arbitrary Detention – Uncontrolled Detention Powers under the Illegal Migration Bill’ Public Law Journal (forthcoming); Sabina Garahan and Matthew Gillett in their submission to the UK Parliament: UK Parliament Joint Committee on Human Rights, ‘Legislative Scrutiny: Illegal Migration Bill’, HC 1241, HL Paper 208 (11 June 2023), Written Evidence by Dr Sabina Garahan and Dr Matthew Gillett (IMB0015).

224

Article 31(1) Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954). Further, under Art 5 of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air Supplementing the UN Convention against Transnational Organised Crime (adopted 15 November 2000, entered into force 28 January 2004), migrants who have been the object of smuggling shall not be subject to criminal prosecution.

225

Vélez Loor v Panama (Preliminary Objections, Merits, Reparations and Costs) Series C No 218 (23 November 2010) para 170. See, also, HRC, ‘Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau’, UN Doc A/HRC/20/24 (2 April 2012) para 13: ‘irregular entry or stay […] are not per se crimes against persons, property, or national security. It is important to emphasize that irregular migrants are not criminals per se and should not be treated as such.’

226

Art 9 ICCPR and para 18, General Comment No 35 (n 70). See, also, the Global Compact for Safe, Orderly and Regular Migration (adopted 13 July 2018) Objective 13; IACommHR, ‘Inter-American Principles on the Human Rights of all Migrants, Refugees, Stateless Persons and Victims of Human Trafficking’, Resolution 04/19 (7 December 2019) principles 68, 69 and 71; WGAD, ‘Report of the WGAD’, UN Doc A/HRC/13/30 (18 January 2010) para 59.

227

The detention of asylum seekers ‘should be avoided’ and only used as a measure of last resort when it proves ‘necessary in the individual case, reasonable in all circumstances and proportionate to a legitimate purpose.’ See UNHCR, ‘Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention’ (2012) Introduction, para 2, and Guideline 4 para 18.

228

General Comment No 35 (n 70) para 18; Vélez Loor v Panama (n 225) para 171; Baban v Australia, UN Doc CCPR/C/78/D/1014/2001 (18 September 2003).

229

WGAD Methods of Work (n 75) para 8(d). See, also, WGAD, Opinion No 69/2021 Concerning Navanitharasa Sivaguru (Australia), UN Doc A/HRC/WGAD/2021/69 A/HRC/WGAD/2021/69 (22 February 2022); Opinion No 17/2021 Concerning Mirand Pjetri (Australia), UN Doc A/HRC/WGAD/2021/17 (4 June 2021).

230

WGAD, ‘Revised Deliberation No 5 on Deprivation of Liberty of Migrants’ (7 February 2018) para 11; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, ‘General Comment No 5 (2021) on Migrants’ Rights to Liberty and Freedom from Arbitrary Detention and Their Connection with Other Human Rights’, UN Doc CMW/C/GC/5 (21 July 2022) paras 46–53; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and Committee on the Rights of the Child, ‘Joint General Comment No 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No 23 (2017) of the Committee on the Rights of the Child on State Obligations Regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return’, UN Doc CMW/C/GC/4-CRC/C/GC/23 (16 November 2017) para 5; UNHCR and the International Detention Coalition, ‘Vulnerability Screening Tool – Identifying and Addressing Vulnerability: a Tool for Asylum and Migration Systems’ (2016).

231

Art 9(1) ICCPR; Art 7(2) American Convention on Human Rights; Art 6 Banjul Charter; Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) Art 16(4).

232

Mukong v Cameroon, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) para 9.8. See, also, section 2.5 in this book: The “arbitrariness” in arbitrary detention.

233

van Alphen v The Netherlands, UN Doc CCPR/C/39/D/305/1988 (23 July 1990) para 5.8.

234

C v Australia, UN Doc CCPR/C/76/D/900/1999 (13 November 2002). See, similarly, the IACommHR’s Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (n 110) Principle 4, which provides that OAS Member States ‘shall establish by law a series of alternative or substitute measures for deprivation of liberty’.

235

Human Rights Committee, General Comment No 35 (n 70) para 12.

236

WGAD, ‘Revised Deliberation No 5 on Deprivation of Liberty of Migrants’ (7 February 2018) paras 13, 14, 19, 20, 24.

237

Vélez Loor v Panama (n 225) para 166. See, similarly, the IACommHR’s Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (n 110) Principle 2.

238

UN Human Rights Committee, A v Australia, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) para 9.2.

239

Ibid para 9.4.

240

Detention Guidelines (n 223) Guideline 4.2, para 34.

241

Ibid para 21.

242

Cathryn Costello, ‘Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EU Law’ (2012) 19(1) Indiana J Glob Leg St 257, 276.

243

Alice Edwards, ‘Back to Basics: the Right to Liberty and Security of Person and “Alternatives to Detention” of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants’, PPLA/2011/01.Rev.1 (UNHCR, April 2011) 12.

244

ECHR.

245

Saadi v United Kingdom (Grand Chamber) App No 13229/03 (29 January 2008) para 64.

246

Saadi (n 245) paras 64–66. See, also, Suso Musa v Malta App No 42337/12 (23 July 2013) paras 90–107.

247

Suso Musa v Malta (n 246) para 90.

248

Saadi (n 245) para 80.

249

Ibid, joint partly dissenting opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvelä: ‘Indeed, the policy behind the creation of the Oakington regime was generally to benefit asylum-seekers; detention was therefore in their best interests. […] to maintain that detention is in the interests of the person concerned appears to us an exceedingly dangerous stance to adopt. Furthermore, to contend in the present case that detention is in the interests not merely of the asylum-seekers themselves “but of those increasingly in the queue” is equally unacceptable. In no circumstances can the end justify the means; no person, no human being may be used as a means towards an end.’

250

A similar “othering” is present in the Grand Chamber’s judgment of Ilias and Ahmed v Hungary (Grand Chamber) App No 47287/15 (ECtHR, 21 November 2019) when the judges essentially hold that the migrants exercised their free will to enter the transit zone and were therefore consenting to their detention (paras 220–223).

251

On absconding, see Al Chodor C-528/15 (CJEU, 15 March 2017).

252

Chahal v United Kingdom (Grand Chamber) App No 22414/93 (15 November 1996) para 112.

253

Suso Musa (n 242) para 91. Chahal (n 252) para 113.

254

A v United Kingdom (Grand Chamber) App No 3455/05 (19 February 2009) paras 170, 171.

255

Chahal (n 247) paras 69, 72–74.

256

Vladislava Stoyanova, ‘The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention And How The Ground Beneath Our Feet Continues To Erode’, strasbourgobservers.com (23 December 2019).

257

Amuur v France App No 19776/92 (25 June 1996) (detention in the international zone of an airport; Khlaifia v Italy (Grand Chamber) App No 16483/12 (15 December 2016) (detention in a reception centre at the port of Lampedusa, and subsequently, detention on ships moored in Palermo harbour).

258

Saadi (n 245) para 80.

259

Ilias and Ahmed v Hungary (n 250) para 213.

260

Ibid, partly dissenting opinion of Judge Bianku, joined by Judge Vučinić.

261

Costello (n 242); Stoyanova (n 256); Helen O’Nions, ‘No Right to Liberty: the Detention of Asylum Seekers for Administrative Convenience’ (2008) 10 Eur J Mig & L 149.

262

Saadi (n 245) joint partly dissenting opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvelä; Ilias and Ahmed (n 250) partly dissenting opinion of Judge Bianku, joined by Judge Vučinić.

263

Judith Butler, Precarious Life: the Powers of Mourning and Violence (Verso 2004).

264

Young (n 72) 151.

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