Human Rights, State Responsibility, and Detention

Introduction

The state has the liability to protect the human rights of every individual irrespective of the class, colour, religion etc. The World War II had seen significant impact on the plight of human beings ushering the need to have a more structural and comprehensive piece of legislation catering towards the protection of such inalienable rights, after the drastic failure of the League of Nations. The protection of human rights are overseen by both the municipal law as well as the International law. Irrespective of the presence of armed conflicts and issues of terrorism, migration and the likes many individuals are detained for an indefinite period of time. It is the primary responsibility of the state to ensure that individuals are given their rights liberally and sufficient security so as to help them live a peaceful life, however, it has been overdone and overseen by many international organizations that individuals have been detained without stating probable cause, sufficient reason and without any valid legal procedure for an indefinite period of time.

The question that is put forward is placed against the sensibility that terrorist activities or armed conflicts that may insinuate any national crisis must be attended and the threat must be addressed, thus such detention is a precautionary measure. It has also been seen that individuals in detention are have been arrested and detained incommunicado, having no means to access legal resource or are given effective remedy to help their case. Not only that, the arrest and detention are often seen to be coupled with inhuman and cruel torture, ill treatment and cornered victims who are deprived of their human rights and blatant violation of Article 5(1)(f) of the European Convention on Human Rights (ECHR). Arbitrary detention has begun to become the norm of the day and whether such detention is mandatory to uphold the national integrity is to be discussed keeping the case of A v Secretary of State for the Home Department .

The great document Magna Carta carved the spirit of Britain in assuring every individual from having their own freedom and set of rights that should not be infringed at any cost especially through arbitrary detention but the reality has been seen to digress. The next best document that spoke on the same lines was the Bill of Rights of 1689 that advocated against illegal prosecutions, arbitrary detention, torture, cruel and inhuman treatment meted out to people. The law of Habeas Corpus was born in the land of Britain which was rejoiced as this protection was far reaching where the term literally meant, “You may have the body”. This ensured that no individual could be detained without eluding proper grounds of arrest and periodic presentation before the court. The soul of the UK law upholds rule of law and by no means can any legislation be contrary to the sole object of the law.

1. Costigan, R., & Thomas, P. (2005). The Human Rights Act: A View from Below. Journal of Law and Society, 32(1), 51-67. Retrieved January 5, 2021, from http://www.jstor.org/stable/3557216
2. A v Secretary of State for the Home Department [2004] UKHL 56

Legality of Indefinite Detention

The rights of liberty and security comprises of the sole right to get the right to fair trial and without biases but detention is seen to take place in many situations like in cases of terrorism, in case of immigration, for non-bailable crimes but the accused reserves the right to a legitimate trial and be presented before an authorised tribunal for his case to be heard which can be executed through the Habeas Corpus in countries following the common law tradition and Amparo in Latin American countries which specifically signifies the rights reserved by an individual against any unnecessary detention. The Universal Declaration of Human Rights (UDHR) have also laid down clauses protecting individuals against any detention made arbitrarily along with the International Covenant of Civil and Political Rights (ICCPR). In cases of detention that are made, it is obligatory on member countries to follow the proceeding related to detaining an accused fairly and subjected to a thorough periodical review to ascertain the requirement of such detention to uphold the legality of such a detention as well. Since most detainee are subjected to cruel and inhuman torture within the premises of the jail, making it harder for such individuals to sustain. The ICCPR also lays down the mandate to bring a detainee before a judge for a speedy trial in order to release the accused as soon as possible if found innocent.

The Immigration Act, 1970 and the Nationality, Immigration and Asylum Act, 2002 is entrusted with powers that may detain any person for an indefinite period of time, extending from six months to twelve if proceedings are not adhered to completely or the defendant fails to cooperate with the officials or for any reasonable ground since there is no separate legislation exercising a upper limit of time period concerning the detention, leaving a room for error. The Section 3 of the Human Rights Act engages British courts reads and tries to decipher all the viable enactment along with the European Convention in order to be compatible with the legislation forwarded internationally, as much as it is conceivable to do so, which inherently eliminates the concept of any law that takes away the freedom from people. However, narrowing the appropriateness of the rule can be perused differently so it applies all the more barely, or adding terms to a resolution are presently accessible to the legal executive in any event, when the rule being deciphered isn't ambiguous. It confers the power on the adjudicators of Britain court of law that it can adjust its standpoint on any law if such a law is in consonance with the European Convention on Human Rights.

1. Yeo C., (2012), UK Human Rights Blog, “ Indefinite detention: Not very British”, < https://ukhumanrightsblog.com/2012/02/08/indefinite-detention-not-very-british/> accessed on 5th January, 2021
2. Zayas Alfred D., International Review of Red Cross (2005), “ Human Rights and Indefinite Detention” Volume 87 Number 857 March 2005 < https://international-review.icrc.org/sites/default/files/irrc_857_zayas_0.pdf> accessed on 5th January, 2020

National Security Laws

Terrorism was addressed and accounted through the Anti-Terrorism Act which gave the power to the UK government to take adequate steps including the capacity to hold onto resources, get classified data from public bodies, and keep suspected terrorists. This Act was not deliberated upon too much and enables the leader to hold the non-residents who are ensured by the Secretary of State uncertainly without any charge or trial. This force is given when non-nationals who are affirmed as suspected terrorists in that case, they are requested to be taken out from the United Kingdom yet can't be a result of legitimate reasons especially in situations where a prisoner is subjected to mindless torment and cruel activities in the nation where the person can be deported.

In the case of Soering v. United Kingdom, the United Kingdom was mindful and concerned about not sending Soering to the United States purely because he was confronted with and would have been subjected to capital punishment there a sper the European Convention of Human Rights even though the capital punishment or death penalty by itself is not detrimental or disregard the core concept and objective of the European Convention but the conditions as per the legislative framework encircling Virgina wouldn’t have provided with the same treatment. More explicitly, it was also considered that the time period given to a prisoner right before their execution is onerous mentally as well as physically. If it is coupled with the danger of assault or actual maltreatment joined with Soering's young age and mental state when he carried out the wrongdoing implied that his experience waiting for capital punishment would be cruel or debasing treatment Further, the European Court of Human Rights held that Member States could be infringing upon Article 3 on the off chance that they remove anybody to a nation where significant grounds have been appeared for accepting that the individual concerned. In case of such removal chances are that they face a genuine danger of being exposed to torment or to brutal or debasing treatment or discipline in the mentioning country.

1. Alison L. Young, Judicial Sovereignty and the Human Rights Act 1998, 61 CAMBRIDGE L.J. 53, 62 (2002).
2. David Bonner, et al., Judicial Approaches to the Human Rights Act, 52 INT’L & COMP. L.Q. 549, 556 (2003).
3. Anti-terrorism, Crime & Security Act, 2001, c. 24-35 (U.K.)
4. JOINT COMM. ON HUMAN RIGHTS, SECOND REPORT OF SESSION 2001-02: ANTITERRORISM, CRIME AND SECURITY BILL, H.L. 37, H.C. 372 [19] (U.K.).
5. Soering v. United Kingdom, 11 Eur. H.R. Rep. 439 (1989)

A v Secretary of State for the Home Department

The position of the United Kingdom’s law on terrorism was revisited and reconsidered after the case of A v. Secretary for the Home department. This case impacted the treatment of suspects of terrorism as opposed to the previous legislative framework confirmed. The case pertained to nine terrorist suspect who were in detention in the Belmarsh prison. These nine suspects were not from UK originally and having the charge of terrorism constituted massive threat to the security of the country. The Government acted aggressively and charged the defendants of detention since the nation was under imminent danger. Two of the suspects had voluntarily left the country and the rest stayed. The defendants had challenged their indefinite detention since they had no previous record of any unlawful activity that could pose a threat to the nation or any fellow individual and contested their detention as a violation of their human right under Article 5(1) of the ECHR. The Anti-Terrorism, Crime and Security Act 2001 (ATCSA) and the Human Rights Act 1998 (Designated Derogation) Order 2001 enables the UK government to take strict action against any foreign national especially if there is any connection to established threat and danger entangled with any terrorist activity, then such suspects are to be detained indefinitely within the territory of the country.

1. ibid

This act of the UK Government reveals a sense of derogation from the primary requirement of ensuring liberty of the individuals under the Human Rights Act, 1998 as well as the ECHR but in case of such ‘Public Emergency’ such a stand is encouraged. There was hindrances with regard to moving the suspects therefore it was considered that the clause of indefinite detention applied on the suspects and they were to be given different treatment as opposed to national suspects, hence making such detention absolutely mandatory.

This stand was appealed by all the suspects since the position of the UK in the international as well as the domestic arena was highly inconsistent and violated multiple human rights laws failing to abide by the obligations entered into by the United Kingdom in the international front. The stance of the Government to take a derogatory move was also inconsistent since such derogation did not suffice the conditions of ECHR and remained arbitrary and inconsistent. Therefore, the primary question that was raised was the fact whether there was an existence of public emergency and if so, was such a derogation mandatory given the state of the case.

The law states that detention is plausible during the period of deportation as per S.5(1)(f) ECHR but derogation from this statutory obligation is permitted only in times of considerable threat and danger to the spirit and security of a nation. This order of Derogation was passed in 2001 with respect to the possible account of international terrorism within the Constitutive framework of UK on occasions concerning a foreign individual in diplomatic proceedings. The question of ‘Public Emergency’ was discussed in the case of Lawless v. Ireland, where the gravity of a threat was massive and could potentially risk the security of the land, in that case, the Government had the privilege to act on such situation provided such a situation has been established beyond inconsistencies. Therefore, sufficient measures must be taken to battle such a situation and the privilege is upon the national government but the foreigners who have been detained in the said case were given permission to exit the country by their own will and means.

1. International Crimes Database, “A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) & X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)”, < http://www.internationalcrimesdatabase.org/Case/3264/A-v-Secretary-of-State-for-the-Home-Department-(No-1)/> accessed on 5th January, 2021
2. Article 14, ECHR
3. Lawless v Ireland (No 3), Lawless v Ireland, Judgment on Merits, App no 332/57 (A/3), [1961] ECHR 2, (1961) 1 EHRR 15, IHRL 1 (ECHR 1961)

However, it has been noted that the foreigners who are considered suspects of terrorism were not provided with equal treatment with respect to suspects who were of national origin. This entire stand was extremely discriminatory and violative of Article 14 of the ECHR wherein only foreign nationals were qualified to be detained for an indefinite period of time as opposed to national suspects of terrorism. This stand was considered and therefore the appeals put forwards by the defendants were held relevant and upheld by the courts. Not only that, the Order of Derogation was quashed along with other acts like the Anti -terrorism and Security Act, 2001.The House of Lords were of the opinion that the position and treatment meted out to the foreign terrorist suspects were not in alignment with the human rights law even though, it took into account the position of UK government, considering the episode to be such of national importance that would qualify to be a ‘Public Emergency’ wherein derogation was still a question. However, the courts emphasized on the discriminatory stance of UK government making it disproportionate in nature.

These Acts were inherently inconsistent with the European Convention in many ways and laid down grounds that were discriminatory in nature, digressing from the core principle of the International Human Rights Law and most importantly, the position of UK before the European Convention would be disproportionate and incompatible to the spirit of their international obligations.

Prevention of Terrorist Act, 2005

The chief had until March 2005 to conclude whether to reestablish the uncertain confinement arrangements to modify the enactment in light of the Declaration of Incompatibility gave by Supreme Court. the Prevention of Terrorism Bill gave the Secretary of State capacity to put a person under house capture or spot such different limitations on their movements. These limitations included forbidding phone utilization and restricting how long the individual could be outside of their residence. In request to acquire a control request, the Secretary of State was needed to apply to the High Court of England and Wales and show that the person had sensible justification for suspecting the controlee is or has been associated with terrorism-related movement, and that the control request was important to shield general society from a danger of terrorism. Thus, The legislative structure in Britain does not go hand in hand with the principles of indefinite detention merely because it has been the land to uphold rule of law and form a basis of a suitable , indiscriminatory and equal world, however going by the differential treatment meted in case of foreigners as opposed to the nationals seem to detour from the core objective of Human Rights law as adopted by the British regime in consonance with the International Human Rights law.

1. Douglass Cassel, International Human Rights Law and Security Detention, 40 Case W. Res. J. Int'l L. 383 (2007-2009). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/650
2. Human Rights Act 1998 (Designated Derogation) Order 2001
3. Section 23 of the Anti-terrorism, Crime and Security Act 2001

B.

The Human Rights law is an expansive area that must be treaded on carefully. The International Human Rights law have been formed after great deliberation and consideration of the state of the world at large and the ultimate aim is to have a peaceful state of affairs that helps in upholding the rights of every individual irrespective of their caste, creed, sex, race, country or origin. In no way is a prisoner, a suspect, an accused is any lesser than any normal citizen of a country. Sure, they are placed differently in the world and the law governing the individuals may apply differently but the core idea that is reserved to preserve human dignity shall be the same. In the case of A v. Secretary of State of Home Department, the national crisis was definitely held reasonable to qualify the state of affair to be of an emergency. This emergency was aggravated due to the foreign defendants who were suspects of terrorist activities. It is undoubtedly important to tackle such a scenario where deportation is not carried out by any means, in that respect the foreign nationals are now a responsibility of the state. Therefore, the treatment meted out to these foreign nationals by subjecting them to detention without any suitable time period is derogatory, detrimental to their mental health and rips them off any right to life, human dignity and integrity. This deprives them to a chance of fair trial, proper appearance before the court and keeps them in the dark. The stand taken by the House of Lords is remarkable since the courts and judges do acknowledge the fact that there is a national crisis and it can be considered to be a state of public emergency since any threat to the security of a nation is a primary concern. However, the indefinite period of detention is applicable for foreign nationals only and not to the nationals of the country. Even though both the would have been detrimental to the security of the nation and could pose imminent danger. Thus, this discrimination was duly looked into and the House of Lords failed to find any reasonable cause to subject these defendants or terrorist suspects to an indefinite period of detention. It was also highlighted the importance of alignment of the domestic law along with the International law. The provisions of the Human Rights Act, 1998 and the European Convention, both were being dismissed if such a stand was continued to be taken and this judgment would serve a remarkable example before the world that in no circumstance can the International Human Rights Regime be taken for granted.

1. JoAnne M. Sweeny, Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights, 34 Pace L. Rev. 1190 (2014) Available at: http://digitalcommons.pace.edu/plr/vol34/iss3/6

Continue your journey with our comprehensive guide to Human Rights Poverty and Development.

BIBLIOGRAPHY

Articles / Journals

• Costigan, R., & Thomas, P. (2005). The Human Rights Act: A View from Below. Journal of Law and Society, 32(1), 51-67. Retrieved January 5, 2021, from http://www.jstor.org/stable/3557216
• Yeo C., (2012), UK Human Rights Blog, “ Indefinite detention: Not very British”, < https://ukhumanrightsblog.com/2012/02/08/indefinite-detention-not-very-british/> accessed on 5th January, 2021
• Zayas Alfred D., International Review of Red Cross (2005), “ Human Rights and Indefinite Detention” Volume 87 Number 857 March 2005 < https://international-review.icrc.org/sites/default/files/irrc_857_zayas_0.pdf> accessed on 5th January, 2020
• Alison L. Young, Judicial Sovereignty and the Human Rights Act 1998, 61 CAMBRIDGE L.J. 53, 62 (2002).
• David Bonner, et al., Judicial Approaches to the Human Rights Act, 52 INT’L & COMP. L.Q. 549, 556 (2003)
• Douglass Cassel, International Human Rights Law and Security Detention, 40 Case W. Res. J. Int'l L. 383 (2007-2009). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/650
• JoAnne M. Sweeny, Indefinite Detention and Antiterrorism Laws: Balancing Security and Human Rights, 34 Pace L. Rev. 1190 (2014) Available at: http://digitalcommons.pace.edu/plr/vol34/iss3/6

Cases

• A v Secretary of State for the Home Department [2004] UKHL 56
• Soering v. United Kingdom, 11 Eur. H.R. Rep. 439 (1989)
• Lawless v Ireland (No 3), Lawless v Ireland, Judgment on Merits, App no 332/57 (A/3), [1961] ECHR 2, (1961) 1 EHRR 15, IHRL 1 (ECHR 1961)

Statutes / Reports

• Anti-terrorism, Crime & Security Act, 2001, c. 24-35 (U.K.)
• Joint comm. On human rights, second report of session 2001-02: antiterrorism, crime and security bill, h.l. 37, h.c. 372 [19] (u.k.).
• Article 14, ECHR
• Human Rights Act 1998 (Designated Derogation) Order 2001
• Section 23 of the Anti-terrorism, Crime and Security Act 2001

Webistes

• International Crimes Database, “A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) & X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)”, < http://www.internationalcrimesdatabase.org/Case/3264/A-v-Secretary-of-State-for-the-Home-Department-(No-1)/> accessed on 5th January, 2021