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Indefinite detention

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Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency for an indefinite amount of time without a trial. The Human Rights Watch considers this practice as violating national and international laws, particularly human rights laws, although it remains in legislation in various liberal democracies.[1]

In recent years, governments have indefinitely incarcerated individuals suspected of terrorism, often in black sites, sometimes declaring them enemy combatants – a notable example being the Guantanamo Bay detention camp.[2] Formalized forms of indefinite detention also exist in some countries around the world in the form of government-mandated administrative detention.[3]

Views by country

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While laws that allow indefinite detention are present in many countries, including liberal democracies, human rights groups hold unfavorable views towards the practice.[1][4]

Australia

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Main article: Immigration detention in Australia

In Australia, indefinite detention is unlawful and violates the Constitution.[5]

In 1992, in the case of Chu Kheng Lim v Minister for Immigration, the High Court of Australia ruled that detention by the government can only be used to punish crimes.[6] However, it found exceptions for non-citizens and possibly during non-peacetime.

In 1994, indefinite detention was introduced for Vietnamese, Chinese, and Cambodian refugees; previous laws had imposed a 273-day limit.[7] The constitutional validity of this was challenged in the 2004 case of Al-Kateb v Godwin. It found that the indefinite detention of a stateless person is lawful.[8] In 2023, this position was overruled in the case of NZYQ v Minister for Immigration.[5] Instead, the High Court of Australia held that the indefinite detention of stateless persons is unlawful. Detention prior to deportation is only permitted when there are real prospects of successful deportation.[9]

China

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Human rights groups claim a history of forced labour, arbitrary arrest, and detention of minority groups, including Falun Gong members, Tibetans, Muslim minorities, political prisoners and other groups in the People's Republic of China.[10][11] Notably, since at least 2017, more than one million Uyghurs and other minorities have been overwhelmingly detained without trial for the purposes of a "people's war on terror".[12][13] In the case of the Falun Gong in particular, there have been claims of extraordinary abuses of human rights in concentration camps, including organ harvesting and systematic torture.[14]

Israel

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Main article: Palestinian prisoners in Israel § Administrative detention
Further information: Criticism of Israel

It was reported in July 2016 by Haaretz that 651 Palestinians were in Israeli jails without having been given due process, and that the number of Palestinians being detained in Israel without trial was on the rise.[15] In October 2021, it was reported that Israel's Police Commissioner, Kobi Shabtai, was personally pushing for the use of detentions without trial, or "administrative detentions," by the Shin Bet security service to police Israel’s Arab communities.[16]

Malaysia

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The Internal Security Act, enacted in 1960, allowed indefinite detention without trial for two years, with further extensions as needed. It was repealed in 2012 amid public pressure for political reform. The Prevention of Terrorism Act (POTA) was introduced in March 2015 after a series of terrorist acts were committed in Malaysia. POTA allows authorities to detain terrorism suspects without trial but stipulates that no person is to be arrested for their political beliefs or activities.[17][18][19]

Singapore

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In Singapore, the Internal Security Act allows the government to arrest and indefinitely detain individuals who pose a threat to national security. It is often used in the context of terrorism, particularly when concerning individuals who are about to engage in Islamic terrorism or hold Islamic extremist views.[20] In 2021, a 20-year-old individual was detained under the Act for plotting an attack on the Maghain Aboth Synagogue in retaliation for Israel's role in the Israel–Palestine conflict.[21]

Switzerland

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In Switzerland, local laws related to 'dangerousness' can be invoked to incarcerate persons without charge. This was controversially effected in the case of Egyptian refugee Mohamed El Ghanem, who was detained without trial for years for refusing to spy on Muslim community leaders in Geneva.[22]

Thailand

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Arnon Nampa was detained without trial in 2020 for 6 days, but after Prime Minister Prayuth Chan-o-cha declared to use all laws, including lese majeste, against the protesters in November 2020. He had been detained for 110 days in the first round of remanding. Since 2023, Arnon Nampa has been serving a four year prison sentence.[23]

United Kingdom

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In 2004, the House of Lords ruled that indefinite detention of foreign terrorism suspects under Section 23 of the Anti-terrorism, Crime and Security Act 2001 violated the Human Rights Act and the European Convention on Human Rights.[1] Under Schedule 8 of the Terrorism Act 2000, the detention of a terrorism suspect may be prolonged upon application of a warrant for further detention by a Crown prosecutor (in England and Wales), the Director of Public Prosecutions (in Northern Ireland), the Lord Advocate or procurator fiscal (in Scotland), or a police superintendent (in any part of the United Kingdom).[24] The Police, Crime, Sentencing and Courts Act 2022 also allows for indefinite detention as a maximum penalty.[25]

United States

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In the United States, indefinite detention has been used to hold terror suspects during the War on Terror. According to the American Civil Liberties Union (ACLU), Section 412 of the Patriot Act permits indefinite detention of immigrants,[26] one of the most highly publicized cases has been that of Jose Padilla,[27] whose ultimate prosecution and conviction in the United States have been highly controversial. The indefinite detention of prisoners at Guantanamo Bay has been called a violation of international law by the United Nations, the International Committee of the Red Cross, and Human Rights Watch.[28][29][30][31]

On November 29, 2011, the United States Senate rejected a proposed amendment to the National Defense Authorization Act for Fiscal Year 2012 ("NDAA") that would have banned indefinite detention by the United States government of its own citizens, leading to criticism that the right of habeas corpus had been undermined.[32][33] The House of Representatives and Senate approved the National Defense Authorization Act in December 2011, and President Barack Obama signed it December 31, 2011.[34] The new indefinite detention provision of the law was decried as a "historic assault on American liberty."[35] The ACLU stated that "President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law."[36]

On May 16, 2012, in response to a lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,[37] United States District Judge Katherine B. Forrest ruled that the indefinite detention section of the law (1021) likely violates the First and Fifth Amendments of the U.S. Constitution and issued a preliminary injunction preventing the U.S. government from enforcing it.[38][39][40][41][42] In September 2012, the Obama administration called on the federal appeals court to reverse the "dangerous" ruling of the lower court, supporting the plaintiffs in the lawsuit and arguing that the rule was so vague that it could be used against US citizens and journalists.[43] On July 17, 2013, the U.S. Court of Appeals for the Second Circuit struck down the injunction against indefinite detention of U.S. citizens by the president under the National Defense Authorization Act of 2012. The appellate court ruled that "plaintiffs lack standing to seek pre-enforcement review of Section 1021 and vacate the permanent injunction ruling that the American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President's authority to detain American citizens.[44] The Supreme Court declined to hear an appeal of the case.[45]

In 2013, the House of Representatives and the Senate[46] reauthorized the National Defense Authorization Act after amendments to effectively ban indefinite detention of U.S. citizens were defeated in both chambers.[47] On December 26, 2013, President Obama signed into law the National Defense Authorization Act of 2014.[48]

See also

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References

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  1. ^ a b c "U.K.: Law Lords Rule Indefinite Detention Breaches Human Rights". Human Rights Watch. 2004-12-15. Retrieved 2019-06-19.
  2. ^ Department of Justice, Office of Public Affairs (13 March 2009). "Department of Justice Withdraws "Enemy Combatant" Definition for Guantanamo Detainees [Press Release]". Justice News. Department of Justice. Archived from the original on 2013-04-13. Retrieved 21 April 2013.
  3. ^ "ADMINISTRATIVE DETENTION OF MIGRANTS, Office of the United Nations High Commissioner for Human Rights" (PDF).
  4. ^ Doherty, Ben (2018-07-07). "UN body condemns Australia for illegal detention of asylum seekers and refugees". The Guardian. ISSN 0261-3077. Retrieved 2019-08-23.
  5. ^ a b Karp, Paul (2023-11-08). "Indefinite immigration detention ruled unlawful in landmark Australian high court decision". The Guardian. ISSN 0261-3077. Archived from the original on 19 December 2024. Retrieved 2024-12-19.
  6. ^ Andrew & Renata Kaldor Centre for International Refugee Law (August 2018). "Casenote Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1" (PDF). Kaldor Centre. Archived (PDF) from the original on 19 December 2024. Retrieved 19 December 2024.
  7. ^ corporateName=Commonwealth Parliament; address=Parliament House, Canberra. "Immigration detention in Australia". www.aph.gov.au. Retrieved 2019-11-21.{{cite web}}: CS1 maint: multiple names: authors list (link)[dead link‍]
  8. ^ Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562, High Court (Australia).
  9. ^ "Explainer: High Court ruling in NZYQ". Human Rights Law Centre. 2023-11-29. Archived from the original on 2024-11-01. Retrieved 2024-12-19.
  10. ^ "Tibetan Repression". 4 February 2016.
  11. ^ "China: Events of 2018". Tibetan Indefinite detention and human rights abuse. 28 December 2018.
  12. ^ "Uyghur arbitrary arrest and detention". TheGuardian.com. 11 January 2019.
  13. ^ Buckley, Chris; Ramzy, Austin (16 December 2018). "Uyghur Forced Labour". The New York Times.
  14. ^ "Falun Gong Organ Harvesting". TheGuardian.com. 17 June 2019.
  15. ^ Amira Hass (28 July 2016). "Number of Palestinians Detained in Israel Without Trial Sees Sharp Rise". Haaretz.
  16. ^ TOI staff (10 October 2021). "Israel could use detention without trial in bid to stem Arab crime". The Times of Israel.
  17. ^ "Malaysia passes new detention without trial law, raising human rights fears". The Guardian. Agence France-Presse. 2015-04-07. ISSN 0261-3077. Retrieved 2019-06-19.
  18. ^ Pakiam, Ranjeetha (7 April 2015). "Malaysia Resumes Detention Without Trial With Anti-Terrorism Law". Bloomberg.
  19. ^ Sivan, Hemananthani; am; Carvalho, Martin; Cheah, Christine (7 April 2015). "Anti-terrorism Bill passed in Parliament after long debate - Nation | The Star Online". www.thestar.com.my. Retrieved 2019-06-19.
  20. ^ "Archived copy". Archived from the original on 2009-01-21. Retrieved 2009-03-04.{{cite web}}: CS1 maint: archived copy as title (link)
  21. ^ Baharuddin, Hariz (10 March 2021). "Singaporean youth detained under ISA for planning knife attack on Jews leaving synagogue". The Straits Times. Retrieved 11 March 2021.
  22. ^ "Robert Fisk: Jailed in Geneva – the colonel who stood up against". The Independent. 2012-03-02. Retrieved 2019-11-21.
  23. ^ Bloomberg, Pathom Sangwongwanich / (2023-09-26). "Thai Protest Leader Sentenced to Four Years in Prison for Royal Insult". TIME. Retrieved 2024-07-27.
  24. ^ "Terrorism Act 2000". www.legislation.gov.uk. Retrieved 2019-06-19.
  25. ^ "Protest powers: Police, Crime, Sentencing and Courts Act 2022 factsheet". GOV.UK. Retrieved 2022-08-08.
  26. ^ "How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants". American Civil Liberties Union. Retrieved 2019-06-19.
  27. ^ The Imperial Presidency and the Consequences of 9/11: Lawyers React to the Global War on Terrorism. Greenwood Publishing Group. February 2007. ISBN 9781567207088.
  28. ^ Mendez, Juan (3 October 2013). "Statement of the United Nations Special Rapporteur on torture at the Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay". United Nations. United Nations. Retrieved 21 March 2015.
  29. ^ "US: Prolonged Indefinite Detention Violates International Law Current Detention Practices at Guantanamo Unjustified and Arbitrary". Human Rights Watch. 24 January 2011. Retrieved 21 March 2015.
  30. ^ Zayas, Alfred (2005). "Human Rights and Indefinite Detention" (PDF). International Review of the Red Cross. 87 (857): 15–38. doi:10.1017/S1816383100181172. S2CID 145478411. Archived from the original (PDF) on 1 May 2015. Retrieved 21 March 2015.
  31. ^ "UN rights chief speaks out against US failure to close Guantanamo detention facility". 23 January 2012. Retrieved 21 March 2015. "It is 10 years since the US Government opened the prison at Guantanamo, and now three years since 22 January 2009, when the President ordered its closure within 12 months," High Commissioner for Human Rights Navi Pillay stated in a news release. "Yet the facility continues to exist and individuals remain arbitrarily detained – indefinitely – in clear breach of international law," she added. "Nobody should ever be held for years on end without being tried and convicted, or released." Ms. Pillay voiced disappointment that instead of closing the facility, the US Government has "entrenched" a system of arbitrary detention, with the new National Defense Authorization Act. Signed into law last month, the Act now effectively codifies such indefinite military detention without charge or trial.
  32. ^ Khaki, Ategah, "Senate Rejects Amendment Banning Indefinite Detention," ACLU Blog of Rights, 29 November 2011: [1].
  33. ^ Carter, Tom "US Senators back law authorizing indefinite military detention without trial or charge," World Socialist Web Site, 2 December 2011: [2].
  34. ^ Julie Pace, Obama signs defense bill despite 'serious reservations', Associated Press, January 1, 2012.
  35. ^ Jonathan Turley, The NDAA's historic assault on American liberty, The Guardian, January 2, 2012.
  36. ^ Press release, December 31, 2011 from American Civil Liberties Union.
  37. ^ Wolf, Naomi (28 March 2012). "The reason I'm helping Chris Hedges' lawsuit against the NDAA". The Guardian. London.
  38. ^ "Archived copy". Archived from the original on 2016-02-03. Retrieved 2012-05-17.{{cite web}}: CS1 maint: archived copy as title (link)
  39. ^ Van Voris, Bob (12 September 2012). "Military Detention Law Blocked by U.S. Judge in New York". Bloomberg.
  40. ^ "Courthouse News Service". Archived from the original on 2012-05-20. Retrieved 2012-05-29.
  41. ^ "Indefinite Detention Provision Blocked". Huffington Post. 16 May 2012.
  42. ^ "Federal court enjoins NDAA - Salon.com". Archived from the original on 2012-05-29. Retrieved 2012-05-29.
  43. ^ Kravets, David (17 September 2012). "Feds Urge Appeals Court to Overturn 'Dangerous' Indefinite-Detention Ruling". Wired. Retrieved 31 January 2020.
  44. ^ Dolmetsch, Chris (17 July 2013). "Ruling That Struck Down Military Detention Power Rejected". Bloomberg News. Retrieved 28 December 2020.
  45. ^ Hurley, Lawrence (28 April 2014). "Supreme Court rejects hearing on military detention case". Reuters. Retrieved 28 December 2020.
  46. ^ "Why Rand Paul Calls This Bill An 'Abomination'". Huffington Post. 21 December 2012.
  47. ^ "House Vote Preserves Indefinite Detention Of Citizens". Huffington Post. 13 June 2013.
  48. ^ "Obama signs NDAA 2014, indefinite detention remains". Salon. 2013-12-27. Retrieved 2019-06-19.
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