This module is a resource for lecturers

Key issues

This Module examines the relevant international and regional frameworks governing arrest and detention in both peacetime and armed conflict situations, identifying some important normative differences between the rights afforded within both settings.

Since there is a basic presumption of liberty as a fundamental human right for all, the deprivation of a person's liberty, whether through their arrest or physical detention, should never be undertaken lightly. Rather, only in circumstances where legally permissible to do so and the appropriate safeguards - such as humane treatment and due process - are guaranteed in law as well as respected in practice. Unfortunately, however, the basic tenets of the rule of law in relation to arrest and detention matters are not always fully reflected within State practice. Such shortcomings can become aggravated in counter-terrorism settings where national security is at stake, especially through domestic anti-terrorism laws, policies and practices.

Although not all arising out of a counter-terrorism context, the nature and scale of violations committed in relation to arrest and detention are illustrated by work undertaken by the United Nations Working Group on Arbitrary Detention (WGAD), whose work is discussed in some detail below. In its report of its work undertaken during 2016: "under its regular procedure, [WGAD] adopted 61 opinions concerning the detention of 201 persons in 38 countries. It also transmitted 74 urgent appeals to 38 Governments concerning 263 individuals, and 19 letters of allegations and other letters to 17 Governments" (General Assembly, Human Rights Council report A/HRC/36/37, p. 1). The diversity of matters examined by WGAD range from the treatment of minors in detention to the right to a fair trial, the rights to freedom of expression and opinion, the right to freedom of association, torture, preventive detention, discrimination, the right to freedom of movement, unlawful arrest, reprisals, to the right to dignity in relation to health-care services in detention.

This Module, which is primarily focused on substantive, rather than procedural obligations, also considers a number of contemporary significant issues which can pose challenges to the rule of law within some States. These relate to ensuring the provision of basic due process standards relevant to the detention of terrorist suspects following their arrest as well as throughout the criminal justice proceedings; and what can constitute unlawful arbitrary detention.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

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