9: Conclusions

Author:

This chapter provides the overall conclusions for the book.

In this book I sought to “conceptualise” arbitrary detention to better understand what the concept means, and to analyse how the concept is construed, applied, and at times, manipulated, and the consequences of such manipulations.

What is clear after many words and pages is that there are different perspectives about what arbitrary detention means. A minimalist perspective equates arbitrary detention with unlawful detention, though it recognises that detentions which comply with domestic law can nevertheless be arbitrary if they violate fundamental principles of international law. Minimalists understand that detention that is lawful can still be arbitrary if it is a disproportionate means to achieve the legitimate aim that the detention is seeking to address. However, minimalists afford an overabundance of deference to states’ rationales for detention and give a wide berth to states to determine how best to achieve those rationales. Thus, there is little scope of a finding of arbitrariness for detentions which are lawful on their face. For the minimalist, arbitrary detention has already been normalised. And, once normalised, there is no need to see it as an exceptional measure. This is despite the sense of hopelessness and powerlessness it engenders, which as I set out in Chapter 3, may amount to torture or cruel, inhuman, or degrading treatment or punishment.

There is a spectrum of views about the role of proportionality in findings of arbitrary detention, also reflected in the divergent case law. The element of the proportionality test which has proven to be most relevant but also most contingent in arbitrary detention case law is the necessity requirement: the need to demonstrate that there were no less restrictive means aside from detention to achieve the legitimate aim sought by the state. This criterion has been of some help in ordinary pre-trial detention cases and to a limited extent on account of the Convention on the Rights of Persons with Disabilities, in cases involving the confinement of persons with disabilities. However, the criterion has been much less adept at addressing the more systemic regimes of arbitrary detention, such as immigration detention, and security detention, or those regimes of detention which are oriented at “unseeing” social issues, such as hiding away persons who are homeless or who use drugs. Without a robust necessity analysis, the principle of detention as a last resort has little practical meaning.

The more minimalist perspective is not overly concerned by the variances in proportionality standards depending on the category of detainee or reason for the detention, given the deference they hold for states’ rationales to detain and how best to achieve those rationales. For the maximalist, these variances are evidence that arbitrary detention has become a tool of the powerful to exert their authority and social control, and more widely, as evidence of the erosion of the rule of law. But the more maximalist perspective is not focused on arbitrary detention at all. Its focus is liberty and security of the person, human dignity, and equality. Detention is an aberration and an abrogation of that fundamental starting point and therefore the maximalist understands the goal to be about safeguarding liberty rather than setting up a framework to legitimise or rationalise detention. The starting point is that all detention is arbitrary unless it is shown to be otherwise because liberty and security of the person is the right that one is seeking to protect.

From these different orientations one can consider how arbitrary detention is being construed, applied and at times, manipulated.

I have demonstrated that arbitrary detention is not ultimately or mainly about occasional departures from lawful detention affecting random persons in random places. It is an insidious policy tool used purposively by governments to exert social control on those who do not conform to the rules of the imagined society. It is a potent tool because it has an air of plausible deniability. Arbitrary detention removes the “unseen”, the “reviled and resented”, the “undeserving”, as well as the dissenters and any other undesirables from the public sphere. But in so doing, it is they, the detainees, who are blamed for the loss of their freedom. Detention is a product of criminalisation, pathologisation and deterrence and as such, detention is not something that was done to detainees; it was done because of them. Confident in the effectiveness of the tool, it will be replicated, and expanded to a growing array of contexts. It is not difficult to hypothesise the response to the increasing number of “climate refugees” seeking to escape the erosion of their habitats, their ways of life and their security. The powerful become more powerful and confident in their privileged spaces and the marginalised simply remain detained.

I have shown how arbitrary detention has both procedural and substantive components. The procedural components are focused on ensuring that detention is subject to law, and that detainees have adequate and effective recourse to challenge the legality of their detention. Procedural safeguards are far more entrenched for ordinary criminal law detentions than they are for other forms of detention such as what is applied in situations of armed conflict or insecurity, or detentions in immigration holding facilities, hospitals, drug treatment facilities, psychiatric care establishments, and social care institutions. But procedural safeguards are only effective when detention is rightfully understood to be an exceptional measure. When detention is normalised and accepted as routine, procedural safeguards lose their usefulness; they become just pro forma endorsements of regimes of detention. Access to courts does not mean much if the systems of law that the courts enforce are ones which privilege detention. The judges and courts assessing detainees’ confinement are simply affirming and legitimising the violence of the rules.

Substantive components of arbitrary detention involve considerations as to what is behind the decision to detain, and they grapple with how the presence or absence of race, gender or other morally arbitrary and discriminatory factors, impact upon who is detained, when, for how long and in what conditions. These components are about recognising and addressing the linkages between discrimination and arbitrariness and countering the rationales for mass detention. But courts are less effective at tackling systemic issues as they are entrenched in the everyday bureaucratic adjudication of the cases coming before them.

Furthermore, given the very limited consideration of what are states’ positive obligations to secure and fulfil the right to liberty and security of the person, and particularly their positive obligations to ensure that any resort to detention is non-discriminatory, findings of arbitrary detention in individual cases have not led to the kinds of system-wide reflections and reform processes which are needed if states were to give full effect to the right.

What positive obligations do states have to ensure that detention is a last resort or that detention is not made indefinite? Outside of discrete areas, courts have been extremely limited in their articulation of principles, options or anything approaching what may be an answer to this question. Nor has any response been articulated to the related question about what obligations states or others with the means to act may have, to end circumstances of indefinite detention, regardless of whether they were the authors of the initial decision to detain. It should therefore be no surprise that the law has been unable to influence or address the scenario of ‘forever prisoners,’ whether they are the terrorist suspects trapped in the legal grey zones of Guantánamo Bay, the Da’esh suspects and persons loosely associated with them stuck in Northern Syria with their citizenships summarily revoked, or the Rwandans acquitted, or having served out their International Criminal Tribunal for Rwanda sentences, under permanent house arrest in Niger because there is literally nowhere for them to go.

The European Court of Human Rights, the human rights court with by far, the largest and most complex caseload and the greatest potential for influence, has taken a reductive approach to arbitrary detention. This has given the widest endorsement to states’ efforts to normalise and expand regimes of detention and is despite the apparent rigidity of Article 5 of the ECHR which restricts the contexts in which detention is capable of being authorised. This reductive approach has been achieved by a mixture of: limiting what factual contexts are understood to fall within the purview of detention under Article 5, inventing new bases of lawful detention not contemplated by the Convention, employing the language of exception to give states the widest possible margin of appreciation to determine what measures (including detention) to employ to meet their objectives, and interpreting certain components of Article 5 as requiring only a limited proportionality analysis or none whatsoever to justify detention. These various approaches have served to undermine the general principle that all detention must be exceptional because the ECtHR has not explicitly required that detention be exceptional; all the Court requires is that detention is not arbitrary, which as explained, it has narrowly construed.

The European Court is by no means the only culprit of reductivism. Human rights courts and treaty bodies have had only limited success in clawing back against the tendencies of discrimination, securitisation, and criminalisation that frequently foster arbitrary detention, particularly in those areas of detention perceived to raise the greatest concerns about sovereignty, national identity, and national security. This is because for the most part they perceive their role as procedural and have shied away from clarifying the content of positive obligations in the area of liberty and security of the person. Where the problems lie, however, is mainly in the substance, not in the procedure. Consequently, cases continue to be adjudicated but they are having an increasingly marginal impact on stemming the tide of arbitrary detention. They just assuage the symptoms as opposed to identifying and addressing the why and the how. For the most contentious issues, human rights law risks becoming the apologist, the language and procedure of denial.

Where does this leave us? Having conceptualised arbitrary detention and analysed how the concept is construed, applied and at times, manipulated, the task ahead is to avoid becoming discouraged or destroyed by the weight of the manipulations and to continue to press against the conditions for the emergence of the resort to detention in the first place. As Guenther explains:

one must not only grasp how it is “wrong” and try to make it “right”, one must trace the contingent, yet constitutive structures that normalize the conflation of accountability with punishment – and in order to do this, one must situate oneself in relation to networks of carceral power that promise security and prosperity to some, while exposing others to containment, control, and state violence.1

1

Lisa Guenther, ‘Six Senses of Critique for Critical Phenomenology’ (2021) 4.2 Puncta: J Crit Phenomenology 5, 1.6.

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