Thousands of Persons Are Subjected to Arbitrary Detention Each Year

OHCHR

Independent Expert on the Human Rights of Older Persons: the COVID-19 Pandemic Has Had a Disproportionate Impact on Older Persons

Human Rights Council Concludes Interactive Dialogue with the Special Rapporteur on the Right to Development

The Human Rights Council this morning held an interactive dialogue with the Working Group on arbitrary detention, started an interactive dialogue with the Independent Expert on the enjoyment of all human rights by older persons, and concluded its interactive dialogue with the Special Rapporteur on the right to development.

Elina Steinerte, Chair-Rapporteur of the Working Group on arbitrary detention, said the present report examined a range of thematic issues, such as the arbitrary detention of women and of human rights defenders, as well as the practice of forcible transfers of individuals. All countries were confronted by the practice of arbitrary detention. “It knows no boundaries, and thousands of persons are subjected to arbitrary detention each year”, she said. The prevailing tragedy of the global pandemic should never be used to curtail the right to personal liberty and freedom from arbitrary detention.

In the discussion on arbitrary detention, speakers expressed alarm at the high level of human rights defenders being arbitrarily deprived of their liberty across the world and shared the Working Group’s concerns on the detention of women, noting that detention could be used to uphold restrictive social norms and exacerbate inequality. They called on all States to ensure that human rights defenders were not deprived of their liberty as a result of their activities. Some speakers rejected the conclusions drawn by the Working Group and regretted the lack of objectivity or the little to no verification of the veracity of the sources, preconceived criteria and basic bias in the analysis of the cases.

Speaking in the discussion were: European Union, Latvia, State of Palestine Australia, Armenia, Egypt, Indonesia, France, Republic of Korea, Venezuela, Cuba, Belarus, United States, Russian Federation, Morocco, India, Ireland, Namibia, Belgium, China, Mauritania, Pakistan, Ukraine, Poland, Afghanistan, Algeria, Philippines, Yemen, United Kingdom, Nigeria, Botswana, Chad, UN WOMEN, Iran, Tunisia, Cambodia and Ethiopia.

Also speaking was the following national human rights institution: National Human Rights Commission India. The following non-governmental organizations also took the floor: Law Council of Australia, Helsinki Foundation for Human Rights, Il Cenacolo, International Service for Human Rights, American Association of Jurists, Commonwealth Human Rights Initiative, Swedish Federation of Lesbian, Gay, Bisexual and Transgender Rights, Right Livelihood Award Foundation, Al-Haq Law in the Service of Man, and International Federation of ACAT.

The Council also heard the presentation of the report of the Independent Expert on the enjoyment of all human rights by older persons addressing ageism and age discrimination, followed by an interactive dialogue.

Claudia Mahler, Independent Expert on the enjoyment of all human rights by older persons, said that the pandemic had had a disproportionate impact on older persons and magnified existing violations of their rights. Ageism aggravated other forms of inequalities. In order to ensure that older persons realised the potential of longer lives in dignity and equality, it was important to address the way old age intersected with other forms of inequality and created serious barriers to participate actively in society. A comprehensive international treaty on the human rights of older persons containing a clear prohibition of age discrimination would enable such a paradigm shift and provide much needed standards and guidance how to practically and meaningfully promote, fulfil and protect the human rights of older persons.

In the discussion on older persons, speakers said that older persons faced a number of particular challenges in the enjoyment of their human rights, including in the areas of prevention of and protection against violence, abuse and neglect, as well as concerning social protection and social inclusion, equality and non-discrimination, access to justice, equitable and quality education, lifelong learning and health support. The COVID-19 pandemic had had a disproportionate impact on the enjoyment of all human rights by older persons, and had highlighted the existing gaps in policies and mechanisms for the protection of this category of population, who continued to face numerous violations of even the most basic rights on a daily basis.

Speaking in the discussion were: Egypt, European Union, Argentina, Israel, Qatar, Djibouti, Germany, Sovereign Order of Malta, United Arab Emirates, Togo, Slovenia, Armenia, Senegal, Bangladesh and Iraq.

At the beginning of the meeting, the Council concluded its interactive dialogue with Saad Alfarargi, Special Rapporteur on the right to development

In the discussion on the right to development, speakers believed that the devastating effect of climate change was one of the major development challenges facing many countries today and noted with concern the recurrence and extent of droughts, heat waves, fires and floods, which caused serious violations of human rights, as well as numerous losses of human life and forced population displacements. Others remained deeply concerned by the inadequacy and ineffectiveness of actions to combat climate change.

Speaking in the discussion were: Algeria, Chad, Azerbaijan, Panama, Burkina Faso, Côte d’Ivoire, Lao People’s Democratic Republic, Malawi, Marshall Islands, Uganda, Libya, Philippines, South Sudan, Haiti, Maldives and Pakistan.

Also taking the floor were the following non-governmental organizations: South Centre, Associazione Comunita Papa Giovanni XXIII, Sikh Human Rights Group, National Association of Vocational Education of China, Action Canada for Population and Development, Centre Europe – tiers monde, Helsinki Foundation for Human Rights, Society for Threatened Peoples, Asian-Pacific Resource and Research Centre for Women, Chunhui Children’s Foundation, Chinese Association for International Understanding, Palestinian Return Centre Ltd, International-Lawyers.Org, China Society for Human Rights Studies and International Council of Russian Compatriots.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-eighth regular session can be found here.

The Council will resume its work at 3 p.m. this afternoon to conclude its interactive dialogue with the Independent Expert on the human rights of older persons. It will then hear the presentation of the report by the Independent Expert on the promotion of a democratic and equitable international order, followed by an interactive dialogue.

Interactive Dialogue with the Special Rapporteur on the Right to Development

The interactive dialogue with Saad Alfarargi, Special Rapporteur on the right to development, started on Friday, 17 September and a summary can be found here.

Discussion

Speakers believed that the devastating effect of climate change was one of the major development challenges facing many countries today. They noted with concern the recurrence and extent of droughts, heat waves, fires and floods, which caused serious violations of human rights, as well as loss of human life and forced population displacement. Some speakers remained deeply concerned by the inadequacy and ineffectiveness of actions to combat climate change, despite the commitments made by States at the international level, in the framework of the 2030 Agenda for Sustainable Development and the Paris Agreement. Some speakers believed that development policies must aim at the continuous improvement of the well-being of all and therefore that the realisation of the right to development required the participation of all international, governmental and societal actors. They said that they shared the analysis that ensuring participation in the realisation of the right to development required not only consultation with individuals and communities, but also putting rights holders truly at the centre of the decision-making process regarding their own economic, social, cultural and political development. On COVID-19, speakers stated that the increased demands on fragile health systems, diminished tax revenues and dwindling external financing had collectively overwhelmed many developing countries’ attempts at meaningful responses to the pandemic or economic recovery. They were disheartened that conditionalities on new multilateral loans required austerity measures and reductions on social spending, at a time when additional investment in health and social protection was most urgent. Some insisted that developing countries needed access to additional financial support, together with the COVAX facility, to procure and deliver more vaccines.

Some speakers stressed the importance of conducting comprehensive and independent evaluations of the results of cross-border policies and projects because of their environmental and social impacts in the field of human rights to address any potential negative effects that may result from these projects. They further shared the Special Rapporteur’s stance on the importance of financing projects geared towards reducing emissions and promoting clean energy solutions and projects aimed at advancing adaptation measures to climate change; and on enhancing international cooperation in the context of capacity-building activities aimed at improving data collection, taking into account data collection comprehensive demographics in developed and developing countries. One speaker noted the Special Rapporteur’s reliance on the Paris Agreement, an instrument that did not contain obligatory emissions reductions targets. Other sources of international law, including human rights law and the United Nations’ Framework Convention on Climate Change, imposed additional legal obligations on States to immediately stabilise the climate, they stated, while encouraging the Special Rapporteur to refer to these and other sources of international law in future recommendations.

Concluding Remarks

SAAD ALFARARGI, Special Rapporteur on the right to development, addressing criticism that climate change was not part of his mandate, emphasised that his thematic study on climate action from the perspective of the right to development was indeed part of the mandate to address the coherent implementation of the 2030 Agenda for Sustainable Development. He welcomed the support expressed for his mandate. Climate action must be taken now, he said, given the threat to the right to development from disasters that could wipe out decades of development in the areas of health, education and housing – not to mention the risk to the very survival of some communities. He once again called for a change in production and consumption patterns. He further added that it was increasingly clear that despite some progress, more needed to be done to address climate change and to help vulnerable populations, as well as to preserve nature and development. “We are at a crucial time, there are a number of key steps we need to take urgently” he concluded.

Interactive Dialogue with the Working Group on Arbitrary Detention

ELINA STEINERTE, Chair-Rapporteur of the Working Group on arbitrary detention, presenting the report of the Working Group on its activities, said that in 2020, the Working Group had adopted 92 opinions concerning the detention of 221 persons in 47 countries under its regular communications procedure. It had also transmitted 55 urgent appeals to 27 Governments, as well as 150 letters of allegation and other letters to 62 Governments and, in two cases, to other actors, concerning 651 identified individuals. States had informed the Working Group that they had taken measures to remedy the situations of detainees and, in several cases, the detainees were released.

The Working Group had continued to address the large number of submissions received in a timely and efficient manner, including through its regular procedure. In 2020, the States concerned provided a timely response to the Working Group’s communications and requests for information in approximately 53 per cent of the cases in which the Working Group adopted an opinion, as opposed to 56 per cent in 2019. In the context of its follow-up procedure, the Working Group had taken note of and welcomed an increased response rate to approximately 58 per cent of cases in 2020. Regrettably, however, the increased response rate did not necessarily imply increased implementation of the opinions. The Working Group called upon all parties to provide timely responses to its communications and requests for information, and to implement fully the decisions. The Working Group had received reports of reprisals suffered by individuals who had been the subject of an urgent appeal or opinion and she called on the States concerned to take measures to prevent and refrain from all acts of intimidation or reprisal against those who have cooperated with the Working Group.

The Chair-Rapporteur mentioned that, during 2020, the Working Group had continued to explore various thematic issues such as Deliberation No. 12 on women deprived of their liberty, which was included in an annex to the report. She regretted a significant implementation gap between the norms and the lived experience of women deprived of their liberty. She remained concerned that women continued to be arbitrarily deprived of their liberty in violation of their human rights, particularly in circumstances where they were detained directly or indirectly because of their sex or gender, or where their gender-specific needs were not taken into account.

The present report also examined a range of thematic issues, such as the arbitrary detention of human rights defenders, as well as the practice of forcible transfers of individuals. Ms. Steinerte called upon States to afford all due process guarantees to all those who were to be expelled or extradited from their jurisdiction, as well as ensure that any such expulsions or extraditions did not result in arbitrary deprivation of liberty. She concluded by emphasising that all countries were confronted by the practice of arbitrary detention. “It knows no boundaries, and thousands of persons are subjected to arbitrary detention each year” she said. The prevailing tragedy of the global pandemic should never be used to curtail the right to personal liberty and freedom from arbitrary detention. She invited all States and other stakeholders to adhere to the Working Group’s Deliberation No. 11 on the prevention of arbitrary deprivation of liberty during public health emergencies.

Discussion

Speakers continued to be alarmed by the high level of human rights defenders being arbitrarily deprived of their liberty across the world, and they endorsed the Declaration against Arbitrary Detention in State-to-State relations. They shared the Working Group’s concerns surrounding the detention of women, noting that detention could be used to uphold restrictive social norms and exacerbate inequality. They further recalled that the detention of people because of their human rights activities was a new manifestation of the alarming trend towards the restriction of civic space and they regretted the even more dire situation for women human rights defenders and those protecting the rights of children with disabilities, persons living with communicable diseases, and lesbian, gay, bisexual, transgender and intersex persons. They called on all States to ensure that human rights defenders were not deprived of their liberty as a result of their activities. Other speakers condemned the persistent practice of arbitrary detention and welcomed the releases achieved and all the measures taken by States to ensure that detentions were justified and proportionate. They insisted on the importance of due process and the proportionate and justified nature of detentions in all cases, while reiterating their commitment to the Bangkok Rules regarding the treatment of detainees and drew the attention of States to the Working Group’s recommendation to use measures that did not deprive people of their liberty, in particular for people in vulnerable situations. Some speakers remained deeply concerned about the use of arbitrary detention, arrest and sentencing to influence State-to-State relations, including States using COVID-19 as a pretext for restricting consular and legal access to detainees.

Some speakers rejected the conclusions drawn by the Working Group which were based on limited information and biased allegations from unidentified sources. They noted the lack of objectivity or the little to no verification of the veracity of the sources, preconceived criteria and basic bias in the analysis of the cases. Some were convinced that the interests of objectivity were not served by the practice of the Working Group when it refused, on formal pretexts, to take into account official information, even if it was received with a certain delay. Such a race for statistics to the detriment of the quality of the work done raised doubts as to the sincerity of the quest for truth. Some speakers reiterated the importance of ensuring that the issuance of opinions or the sending of communications was not based on false or fabricated allegations for purposes unrelated to the defence of human rights and rejected the use of the Special Procedures for political purposes. One speaker was concerned that on many occasions the responses of States were not taken into account and said it was important to keep in mind that several communications misleadingly peddled allegations submitted by certain parties, known for their sick and motivated hostility against his country, should not enjoy any credibility with the mandate holders, especially since their allegations were not supported by any material evidence.

Interim Remarks

ELINA STEINERTE, Chair-Rapporteur of the Working Group on arbitrary detention, clarified that the Working Group did not solicit information and worked objectively on cases of detention brought to their attention, word-wide and without any discrimination. She explained that the Working Group wrote to governments seeking their input and clarification. While many States engaged with the work of the Working Group in good faith, she also regretted that some States did not, which required the Working Group to proceed without the States response. On the deadline for States answers, she said that strict deadlines were applied to the response that had to be submitted by the State, which was a challenge. She explained that the Working Group endeavoured to take late responses before the session. In the case of women in detention, she stated that women must not be deprived of their liberty discriminatively on the basis of law. She concluded by saying that States should review their legislation and ensure that they did not discriminate against women. She regretted that women were underrepresented as only 8 per cent of persons considered in the Working Group were identified as women and she called on States to ensure that there were no reprisals against women and girls who engaged with the mechanisms of the United Nations.

Discussion

Speakers said that arbitrary detention was a hallmark of authoritarian regimes and its use a tool of political intimidation. Arbitrary detention did not only violate human rights, but also undermined the trust in institutions that kept societies safe and open. Regretting that human rights defenders were at an increased risk of being subjected to arbitrary detention, they stated it was even truer for child human rights defenders who were also deprived of their liberty on national security grounds. They called on Member States to comply with international human rights standards, explicitly exclude children from national counterterrorism and security legislation, and ensure that children suspected of national security offenses were treated exclusively within child justice systems. Some speakers welcomed the Working Group on arbitrary detentions’ Deliberation No. 12 on women deprived of their liberty and hoped the guidance could support States in preventing and addressing the arbitrary detention of women, in accordance with international standards. Women in prisons and other places of detention were the furthest left behind in the justice arena, they said, adding that they faced higher risks of contracting COVID-19 due to overcrowding. Some speakers welcomed the focus on forcible transfers in the report of the Working Group on arbitrary detention, as this practice raised serious concerns regarding the respect of the rule of law and the principle of non-refoulement. This was particularly true when victims of forcible transfers were subjected to extensive interrogations and forced to sign documents.

Concluding Remarks

ELINA STEINERTE, Chair-Rapporteur of the Working Group on arbitrary detention, said she was conscious that the prevailing health crisis represented challenges. She encouraged States to work with her to help with country visits. She added that one third of opinions adopted by the Working Group in 2020 concerned human rights defenders arbitrarily detained due to their activity. This was an alarming tactic against those who advocated against the deficiencies of governments. Human rights defenders were a protected group, and she recommended that States put an end to repeated targeting of defenders who acted on behalf of or belonged to marginalised groups. Ms. Steinerte concluded by saying that the Working Group had consistently refrained from replacing national jurisdictions, however, she stated that the Working Group was entitled and must assess the proceedings of the courts and the Law as to whether they met or did not meet international standards.

Interactive Dialogue with the Independent Expert on the Enjoyment of All Human Rights by Older Persons

CLAUDIA MAHLER, Independent Expert on the enjoyment of all human rights by older persons, addressing the Council in person for the first time in her capacity as Independent Expert on the enjoyment of all human rights by older persons, said that the COVID-19 pandemic had had a disproportionate impact on older persons and had magnified existing violations of their rights. “Prevalent ageist attitudes were visible in the form of verbal abuse and negative images targeting older persons in the media and public debates, especially at the onset of the pandemic”, she stated. “Such images and attacks often resulted in breaches of human rights and denial of dignity of older persons”. The Independent Expert highlighted that according to the Global Report on Ageism released earlier this year by the World Health Organization, one in two persons were ageist against older persons. “Ageisms are stereotypes, prejudices and/or discriminatory actions or practices against older persons based on their chronological age or on a perception that the person is “old””, she said. Every individual had internalised stereotypes and prejudices about ageing and at the structural and societal levels, policies and laws reflected perceptions of the limited and pre-defined roles ascribed to older persons, mainly as recipients of assistance and care. Ageist policies perceived them in a generalised way, despite the fact that older persons were one of the most diverse segments of the global population.

Ms. Mahler said that ageism aggravated other forms of inequalities and that in order to ensure that older persons realised the potential of longer lives in dignity and equality, it was important to address the way old age intersected with other forms of inequality and created serious barriers to participate actively in society. As an example, she explained that the intersection of ageism and sexism meant that older women’s status deteriorated faster compared to that of men and that older women were often expected to continue their caregiving roles while neglecting their physical and mental health, well-being and economic independence. In health care, older patients could be exposed to patronising and dismissive language from health professionals who may disregard their opinions and choices regarding their treatment. The perception of older persons as unimportant and disposable and a burden to society was a driver of violence, abuse and neglect. The negative effects of ageism and age discrimination were evident in many other spheres, including employment, financial services and the media, among others.

The Independent Expert said that countering ageism and eliminating age discrimination was a starting point for the full enjoyment of the human rights of older persons. There could not be dignity and equality of rights if older persons continued to be viewed primarily as beneficiaries of care and support that created pressure on budgets and resources. “A human rights-based approach is absolutely needed to shift this welfare paradigm to one recognising older persons as rights bearers that have the same guarantees of dignity, equality, participation, autonomy and independence during the entire life course”, she said, adding that States must accelerate the development of policies, laws and practical measures to combat all forms of ageism and age discrimination. She concluded by stating that a comprehensive international treaty on the human rights of older persons containing a clear prohibition of age discrimination would enable such a paradigm shift and provide much needed standards and guidance on how to practically and meaningfully promote, fulfil and protect the human rights of older persons.

Discussion

Speakers agreed with what the report said on the importance of raising awareness on issues of discrimination against older persons and the importance of strengthening national legislative frameworks to promote and protect the rights of older persons. Some speakers noted that older persons faced a number of particular challenges in the enjoyment of their human rights, including in the areas of prevention of and protection against violence, abuse and neglect, as well as social protection and social inclusion, equality and non-discrimination, access to justice, equitable and quality education, lifelong learning and health support. They recognised that ageism intertwined with other forms of isms and grounds of discrimination. They were particularly concerned that older women, who outnumbered older men, often faced multiple and intersecting forms of discrimination or could be victims of violence, compounded by their gender, age or disability or on other grounds, which affected the enjoyment of their human rights. The COVID-19 pandemic had had a disproportionate impact on the enjoyment of all human rights by older persons, and had highlighted the existing gaps in policies and mechanisms for the protection of this category of population, who continued to face numerous violations of even the most basic rights on a daily basis. These elderly people, often considered as weak links in society, deserved more attention.

Some speakers commended the Independent Expert for her report on ageism and age discrimination and her focus on the way that the existing legal and policy frameworks at the international and regional levels protected against these types of discriminations. They were concerned about the presence of ageism globally that reinforced discrimination, marginalisation and the exclusion of older persons, and agreed with the Independent Expert that these harmful approaches damaged social and personal identities and contributed to discrimination based on age. They insisted that a human rights-based approach was the appropriate framework to challenge ageism and should be better integrated in laws, policies and institutional practices on the matter. A number of speakers said that the enjoyment of human rights of older persons faced several challenges, such as social exclusion, the prevention and protection against violence, and guarantees of equality and non-discrimination. Older persons also faced higher risks of abuse, neglect and lack of social protection, which regrettably were further heightened with the outbreak of the COVID-19 pandemic. They called on all States to enforce their efforts in preventing all forms of discrimination and raise awareness to encourage the participation of older persons in society.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/09/le-groupe-de-travail-sur-la-detention-arbitraire-demande-aux

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