Conceptualising Arbitrary Detention: Power, Punishment and Control

Front Cover
Conceptualising Arbitrary Detention: Power, Punishment and Control
Copyright information
Table of Contents
Detailed Contents
List of Abbreviations
About the Author
Acknowledgements
Foreword
1 Introduction
	1.1 The impetus for the book
	1.2 Some of the themes explored in the book
	1.3 The trajectory
Part I Theorising and Conceptualising “Arbitrariness”
	2 Notions of the “Arbitrary”
		2.1 Introduction
		2.2 Multiple meanings
		2.3 Theorising “arbitrariness”
		2.4 “Arbitrariness” in human rights law
			2.4.1 “Arbitrariness” and the social conception of rights
			2.4.2 “Arbitrary interference” and human rights decision-making
				(i) Qualified rights
				(ii) Limited rights: the arbitrary deprivation of the right to life
			2.4.3 “Arbitrariness” and positive obligations
		2.5 The “arbitrariness” in arbitrary detention
			2.5.1 The history and meaning of “arbitrary” in arbitrary detention
			2.5.2 Arbitrary detention: both qualified and limited
			2.5.3 States’ positive obligations to ensure that detention is non-arbitrary
			2.5.4 Relationship with other rights
		2.6 The grey zones of “detention” and their impact on arbitrariness
		2.7 Conclusions
	3 “Arbitrariness” as an Indication of Harm
		3.1 Introduction
		3.2 The harms of arbitrary detention
		3.3 Connection to torture and other cruel, inhuman, or degrading treatment or punishment
			3.3.1 The torture definition and its component parts
				(i) Severity
				(ii) For such purposes as
				(iii) The involvement of the state
				(iv) Does not constitute lawful sanctions
			3.3.2 Other forms of cruel, inhuman, or degrading treatment or punishment
		3.4 Conclusions
Part II The Law and Practice of Arbitrary Detention in Context
	4 Enforcing Hostility and Social Control
		4.1 Introduction
		4.2 Agamben and the theorisation of containment
		4.3 Methods of containment
			4.3.1 Detention as criminalisation
			4.3.2 Detention as pathologisation
			4.3.3 Detention as deterrence
		4.4 The arbitrary detention of socially excluded and marginalised groups
			4.4.1 The “unseen”: economic and social “degenerates”
				(i) Detention of persons who are homeless
				(ii) Detention on mental health grounds
				(iii) Detention of people who use drugs
			4.4.2 The “reviled and resented”: racism, xenophobia, and other discriminatory treatment
				(i) Groups discriminated against based on race, ethnicity or religious identity
				(ii) Indigenous peoples
				(iii) Discrimination based on gender or gendered roles
			4.4.3 The “undeserving”: refugees and other migrants
		4.5 Conclusions
	5 Deterring Dissent
		5.1 Introduction
		5.2 How arbitrary detention is used to deter dissent
			5.2.1 Criminalisation
				(i) Securitising dissent
				(ii) Criminally defamatory speech acts
			5.2.2 Pathologising dissent
			5.2.3 Isolating dissenters and using other non-traditional forms of detention
		5.3 The dissenters
			5.3.1 Opposition politicians
			5.3.2 Environmental activists
			5.3.3 Mass protest movements
		5.4 Ulterior or pretextual motives
		5.5 Interpol and the cross-border persecution of dissenters
		5.6 Conclusions
	6 The Securitisation of Detention: Exceptional Regimes, Security Frameworks and Counter-Terrorism Measures
		6.1 Introduction
		6.2 The power of the exception and the shunning of the everyday
			6.2.1 The exigent exception: emergencies, exceptions and derogations
			6.2.2 The exception of place: denial of extraterritoriality
			6.2.3 The person as exception: “terrorists”, “non-combatants” and other rhetorical labels
			6.2.4 The exception of law: lawfare and other narrative devices
		6.3 Detention during armed conflicts
			6.3.1 Detention by multinational forces
			6.3.2 “Extraterritorial NIACs”, UN Security Council resolutions and the power to detain
			6.3.3 Challenges with the transfer of detainees
		6.4 National security, counter-terrorism and indefinite detention
			6.4.1 Counter-terrorism and forever prisoners
			6.4.2 Da’esh and quasi-carceral zones of exclusion
		6.5 Conclusions
	7 Detention of Dual and Foreign Nationals for Leverage
		7.1 Introduction
		7.2 Arbitrary detentions and state-to-state leverage: the practice
		7.3 The salience of labels: arbitrary detention, hostage-taking and unlawful coercion
			7.3.1 The human rights violation of arbitrary detention
			7.3.2 The crime of hostage-taking
				(i) ‘Any person’
				(ii) ‘In order to compel’
				(iii) Application to dual nationals detained in one of their states of nationality
			7.3.3 Violating the principle of non-intervention
		7.4 Negotiating release
		7.5 Conclusions: the importance of multilateral approaches
	8 Detention and Pandemic Exceptionality
		8.1 Introduction
		8.2 Human rights, infectious diseases and the positive obligation of non-discrimination
		8.3 The proportionality of anti-COVID measures that deprive persons of their liberty
		8.4 Quarantines, lockdowns and other pandemic-related restrictions on liberty
		8.5 Confinement: positive obligations in a state of hyper-engagement
			8.5.1 Reconciling the equivalence of care principle in a pandemic
			8.5.2 Anti-COVID measures in detention centres
			8.5.3 Access to vaccines and treatment for detainees
			8.5.4 COVID-19 and justifications for early release
		8.6 Conclusions: the transformative potential of positive obligations
	9 Conclusions
Index