Human rights and indefinite detention

31-03-2005 International Review of the Red Cross No 857, p. 15-38 by Alfred de Zayas

International human rights law abhors a legal black hole. It applies wherever a State exercises its jurisdiction, not only in peacetime but also during armed conflict, as a compliment to humanitarian law. The deprivation of liberty is subject to certain conditions, and even initially lawful detention becomes arbitrary and contrary to law if it is not subject to periodic review.

Alfred de Zayas
J.D. (Harvard), Dr. phil. (Göttingen), member of the New York Bar, former Secretary of the Human Rights Committee and Head of the Petitions Unit, visiting professor of law, University of British Columbia and of the Graduate Institute of International Studies, Geneva.

Abstract

Indefinite detention is incompatible with Article 9 of the International Covenant on Civil and Political Rights. While temporary derogation from this provision is allowed in article 4 ICCPR, such derogation is only possible “in time of public emergency which threatens the life of the nation” and “to the extent strictly required by the exigencies of the situation.” Persons deprived of their liberty are entitled to a prompt trial or release, and in cases of arbitrary detention, they are entitled to compensation. Neither the war on terror nor restrictive immigration policies justify indefinite detention.

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