Article 9 of the Universal Declaration of Human Rights states that ‘No one shall be subjected to arbitrary arrest, detention or exile.’

This right has also been recognised by the International Covenant on Civil and Political Rights (ICCPR), in which Article 9 establishes that ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’

At a regional level, the American Convention on Human Rights (Pact of San Jose) states in Article the right to personal liberty which establishes no one should be subject to arbitrary arrest or imprisonment, and the African Charter on Human and Peoples´ Rights states in Article 6 the right to personal liberty and protection from arbitrary arrest. This right is also recognized in the Arab Charter on Human Rights and the ASEAN Human Rights Declaration.

Not every deprivation from liberty is unlawful or arbitrary. The Working Group on Arbitrary Detention has defined five categories of cases in which a detention or arrest could be considered arbitrary. These are:

  • Category I: when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.
  • Category II: when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by the Universal Declaration of Human Rights such as the freedom of opinion and expression or freedom of assembly and association.
  • Category III: when States violate the total or partial observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights.
  • Category IV: when asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.
  • Category V: when the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.

The Human Rights Committee, the Treaty Body in charge of monitoring State compliance with the ICCPR, has also explained that

‘Any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. Deprivation of liberty without such legal authorization is unlawful. Continued detention despite an operative   (exécutoire) judicial order of release or a valid amnesty is also unlawful.’

States are obligated to not only prevent arbitrary detention, but to compensate victims. Paragraph 5 of article 9 of the International Covenant on Civil and Political Rights provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. This remedy includes release from unlawful detention as well as financial compensation.

Moreover, the Principles for the protection of all persons under any form of detention or imprisonment, state un principle 4 that ‘any form of imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to e effective control of, a judicial or other authority.’

Right to freedom from arbitrary detention and the right to environmental defence

As explained by the Human Rights Committee, ‘Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the International Covenant on Civil and Political Rights, is arbitrary. Accordingly, any detention or arrest of individuals who were making a legitimate exercise of these rights as part of environmental defence activities is arbitrary. Arbitrary detention creates risks of torture and ill-treatment. Moreover, enforced disappearances violate numerous substantive and procedural provisions of the Covenant and constitute a particularly aggravated form of arbitrary detention. Environmental defenders fighting against economic and political interests, face all of these threats, as they might be arbitrarily detained during protests or at their homes by government agents or third parties, who would try to silence them on behalf of their own interest.

Similarly, the Framework Principles On Human Rights And The Environment affirm that States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters, and in that sense, they ‘may never respond to the exercise of these rights with excessive or indiscriminate use of force, arbitrary arrest or detention, torture or other cruel, inhuman or degrading treatment or punishment, enforced disappearance, the misuse of criminal laws, stigmatization or the threats of such acts.’

Arbitrary detention or arrest against environmental defenders is often used as part of broader criminalisation campaigns. Criminalisation campaigns can be run against individual defenders or organisations, and usually involve smear tactics, accusations, and vague charges such as ‘perturbation of public order’, ‘usurpation’, ‘trespassing’, ‘conspiracy’, “coercion”, and ‘instigation of crime’, which can nonetheless lead to the arbitrary detention of defenders by the State. As Global Witness has shown, ‘many governments are manipulating their legal systems and intimidating defenders with aggressive criminal and civil cases, often to further the interests of big business.’

The Report on the Misuse of Criminal Justice Systems to Retaliate Against Environmental Defenders shows how ‘Environmental defenders throughout the Americas report being subjected to improper criminal investigations, false accusations, arbitrary detentions, prosecutions without due process, and improper convictions as a means of intimidation and coercion.’ This is a situation in need of attention from governments and international organizations to be addressed as the right to life is endangered by these practices.