Arbitrary detention

Pandemics, reparations, technologies, women deprived of liberty and more…

As the UN Human Rights Council lowers the shutters on its 45th session in Geneva, it is hopefully still not too late to spotlight an important report which emerged during the four-week, mostly virtually-held human rights forum.

Amidst the stacks of published papers and reports, the UN Working Group on Arbitrary Detention formally presented its 2020 Annual Report during the session, one which is jam-packed with items of human rights interest, including a focus on modern technologies and detention.

Formally presented to the Council by Working Group Chair Leigh Toomey on 21 September 2020, the latest Annual Report focuses on three thematic areas of interest, namely: (a) women deprived of liberty; (b) the right to legal assistance in preventing arbitrary deprivation of liberty; and (c) modern technologies and alternatives to detention. To say nothing of the report’s focus on two so-called ‘Deliberations’, it should be added.

Prison – Benjamin Horn (2018).

In this latter connection readers of this website will recall a recent feature highlighting the UN Working Group’s excellent Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies, the timeliness of which was immaculate for this contemporary COVID-19 dominated age.

Yet the Working Group’s earlier Deliberation No. 10 on reparations for arbitrary deprivation of liberty also deserves a visit. With a focus on five main forms of reparation (restitution, rehabilitation, satisfaction, compensation, and guarantees of non-repetition) Deliberation No. 10 makes a very useful contribution to the existing literature on the subject, albeit from a slightly different angle. Both Deliberations are annexed to the main report.

Returning to the main trunk of the document, its three thematic threads will no doubt be areas of interest for readers, not least the accent on modern technologies. In this latter respect the UN Working Group has remarked:

Over the past few years, the Working Group has observed new opportunities that the use of modern technologies, such as electronic monitoring devices and telephone and Internet reporting, offers to minimize the need for States to resort to traditional modes of deprivation of liberty, depending on the legal regime. In principle, the use of digital technologies in providing alternatives to detention is a positive move. It limits the need for physical confinement of an individual in a closed environment, which usually represents a high cost to society and may lead to extended breaches of the rights of the individual concerned. The Working Group therefore welcomes the use of modern technologies to allow for alternatives to detention. (§57)

In the report the UN expert body calls on the Human Rights Council to seek a thorough study on the use of modern technologies as alternatives to deprivation of liberty with a view to providing guidance to UN Member States. Whether it does so or not, shall remain to be seen.

In relation to women deprived of their liberty, the UN Working Group depicts the following grim reality:

Despite the important progress made in developing global standards that promote the rights of women deprived of their liberty, the arbitrary deprivation of liberty of women continues to be of serious concern across the world. During the reporting period, the Working Group considered the situation of women deprived of their liberty in a variety of contexts, including detention resulting from the lack of access to reproductive health care; the protective custody of women in social care facilities; the de facto detention of women through restrictions imposed by private actors; and the detention of women in facilities not appropriate for the needs of female detainees. (§46)

Tall prison fence – Simon Brass (2007).

The UN Working Group continues:

The common element of all these cases was that the individuals were women and the Working Group found that this was the key reason for their deprivation of liberty. The Working Group shares the view of the Working Group on discrimination against women and girls that women’s deprivation of liberty is a significant concern around the world and severely infringes upon their human rights. As is clear from the above examples, such deprivation of liberty not only takes place in the criminal justice context, but women are also detained in the context of migration, in other administrative detention settings and in healthcare settings. (§48)

In this connection, the UN Working Group’s new report builds on the first-class work of the UN Working Group on Discrimination against Women and Girl’s 2019 thematic report ‘Women deprived of liberty’, as featured on this website.

Briefly put, if you have to date missed the UN Working Group on Arbitrary Detention’s 2020 Annual Report, you could do much worse than take a closer look. Alternatively, you can watch last month’s formal presentation of the report before the UN Human Rights Council below.

Razor-sharp observers of the UN Human Rights Council may also have caught last week’s joint-statement by various UN special procedures, praising Canada on repatriating an orphaned 5-year-old Canadian girl from a detention camp in Syria.

The UN Working Group on Arbitrary Detention signed onto the said statement (along with six other UN special procedures), urging Canada as well as other countries to repatriate their citizens remaining in Syrian detention camps, especially children. The wretched conditions in such camps have been described in the joint-statement as reaching the threshold standard for torture, inhuman and degrading treatment under international law. The latter conclusion prompts the very simple question why is it taking such states so inordinately long to do so?


Learn more about the UN Working Group on Arbitrary Detention.

Read its recently published Annual Report 2020.

Watch the Human Rights Council’s Interactive Dialogue with the UN Working Group on Arbitrary Detention from 21 September 2020.

Read the UN special procedure joint statement UN experts welcome return to Canada of five-year-old orphaned in Syria (7 October 2020).

***As a final point of information, the UN WGAD wrote to Canada in April 2018 (see §72), requesting that it be permitted to undertake a fact-finding visit to the country (following such a visit in June 2005). No permission has, to date, been forthcoming, we understand. Given that no end of UN special procedures have visited Canada in past years, such apparent reluctance remains disappointing.

Posted by mp in Arbitrary detention, Canada, COVID-19, Women prisoners, Working Group on Arbitrary Detention

Public Health Emergencies & Arbitrary Detention

Shudder to think that Canada might ever be plagued by anything worse than the current Covid-19 public health emergency. Yet the reality is that more than just a few unlucky countries are often beset by outbreaks of disease, sometimes both frequently and severely.

Whether the outbreaks are global, regional or national in scope, Cholera, Influenza, Plague, Smallpox, Ebola, Rift Valley Fever, Meningitis, Yellow Fever, Zika, SARS, Monkeypox and numerous other frighteningly sounding maladies typically afflict the inhabitants of such far less fortunate countries.

As someone who lived in West Africa during the 2014-2015 Ebola crisis, Covid-19 is one of just a number of dreadful blights out there, believe you me.

Yet even when such epidemics do visit upon a society, it is clear that those entities wielding power must not deprive persons of their liberty in an arbitrary manner, whether they be persons perceived to be suffering from a given health condition or otherwise.

Recently the UN Working Group on Arbitrary Detention (WGAD) issued an excellent new thematic position paper (known as a ‘Deliberation’) on ‘the prevention of arbitrary deprivation of liberty in the context of public health emergencies‘. From the title of the document, it is axiomatic that the principles contained therein would apply to an array of public health emergencies, and not just the present Covid-19 crisis.

In the accompanying press release, the UN Working Group recalled that:

…the prohibition of arbitrary detention is absolute even during times of public emergencies and urged governments worldwide to prevent arbitrary deprivation of liberty in the context of the measures currently adopted for controlling the spread of the COVID-19 virus.

The statement continued:

In its newly adopted Deliberation No. 11, the expert group establishes a set of guidelines to prevent arbitrary deprivation of liberty during public health emergencies, stressing that any control measures “must be publicly declared, be strictly proportionate to the threat, be the least intrusive means to protect public health and imposed only while the emergency lasts”.

The Storm Breaks – Tim Sackton (2012)

What has any of the above to do with Canada, you might reasonably ask? In a word, the risk of arbitrary detention exists anywhere, more so during times of national crisis when emergency powers are resorted to or are legislated in quick measure.

What is more, a closer glance at the UN Working Group position paper reveals a wealth of advice and guidance of direct relevance to the Canadian context. In particular, paragraphs 12 to 16 literally jump off the page. For instance:

The Working Group … calls upon all States to pay particular attention to the requirements of necessity and proportionality of deprivation of liberty in the context of public health emergencies, such as the newly emerging emergency related to the COVID-19 pandemic. (12)

In particular, States should urgently review existing cases of deprivation of liberty in all detention settings to determine whether the detention is still justified as necessary and proportionate in the prevailing context of the COVID-19 pandemic. In doing so, States should consider all alternative measures to custody. (13)

In view of the hotly-debated point of discussion whether the federal, provincial and territorial authorities have taken sufficiently swift steps to address existing levels of incarceration during the current public health emergency, the above excerpts are highly relevant. One need only peruse the multiple daily news articles on this topic, as featured on this website, to see why.

Arbitrary Limitations – Marcin Wichary (2008).

Similarly, paragraph 15 of the Working Group’s Deliberation echoes current calls to ensure that certain categories of detainees are released from detention in Canada, as follows:

The Working Group is aware that COVID-19 mostly affects persons older than 60 years of age, pregnant women and women who are breastfeeding, persons with underlying health conditions, and persons with disabilities. It therefore recommends that States treat all such individuals as vulnerable. States should also refrain from holding such individuals in places of deprivation of liberty where the risk to their physical and mental integrity and life is heightened.

And not forgetting Deliberation paragraph 16, which states the following:

Lastly, noting that overcrowding and poor hygiene pose a particular risk of spreading COVID-19, States should seek to reduce prison populations and other detention populations wherever possible by implementing schemes of early, provisional or temporary release for those detainees for whom it is safe to do so … Noting the obligation arising from the Convention on the Rights of the Child of not detaining children, particular consideration should be given to releasing children and women with children, and also those serving sentences for non-violent crimes.

Readers can make their own minds up whether the guidance in the above paragraphs has been followed across-the-board in Canada in the light of current day conditions. Clearly, certain provinces have acted more quickly than others, while federal prison decarceration has to date been limited.

Finally, as regards Canada’s severe, on-going case of OPCAT stupor, Deliberation No. 11 offers a much-needed tonic:

The Working Group encourages States to ratify the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and States that are a party thereto to adhere to the advice of the Subcommittee on Prevention of Torture to States parties and national preventive mechanisms relating to the coronavirus pandemic.
(30)

The Working Group has also underscored a key point previously advanced by other influential actors:

The Working Group acknowledges the particular challenges that the prevailing public health emergency poses to such independent oversight as those involved in human rights monitoring seek to uphold the principle of “do no harm”. However, the prevailing public health emergency cannot be used as a blanket justification to prevent all such independent oversight. The Working Group calls upon all States to allow visits of independent oversight mechanisms to all places of deprivation of liberty during the COVID-19 pandemic and other public health emergencies. Due consideration should be given to such practical measures as staggering the visits of oversight bodies, allowing for extra telephone and internet contact and establishing hotlines and the use of personal protection equipment. (29)

In this respect the Working Group echoes other United Nations and Council of Europe advice, a conundrum recently discussed in-depth on this website.

In addition to the overall goldmine of human rights guidance and instruction contained in the paper, Deliberation No. 11 also lays down how any returning refusenik Snowbirds, or anyone else reluctant to self-quarantine for that matter, should be dealt with by the authorities. But readers will have to turn to paragraphs 8 and 19 of this first-class contribution to find out more.


Read UN Working Group on Arbitrary Detention, Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies. Read the accompanying press release.

Find out more about the work of the WGAD.

Explore the WGAD’s other Deliberations.

Will the WGAD ever undertake a fact-finding visit to Canada? Read more.

Posted by mp in Arbitrary detention, COVID-19, OPCAT, Oversight bodies, Places of detention