Administrative detention
Encyclopedia
Administrative detention is arrest
and detention of individuals by the state
without trial
, usually for security
reasons. A large number of countries, both democratic
and undemocratic, resort to administrative detention as a means to combat terrorism
, control illegal immigration
, or to protect the ruling regime.
Unlike criminal
incarceration
(imprisonment) imposed upon on conviction
following a trial, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus - they seek to determine whether a defendant committed an offense in the past - the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future. It is meant to be preventive in nature rather than punitive (see preventive detention
). The practice has been criticized by human rights
organizations as a breach of civil and political rights.
measure, the rationale given by its proponents is that legal existing systems are ill suited to handle the specific challenges presented by terrorism. Proponents of administrative detention maintain that criminal law's reliance on defendant rights and strict rules of evidence cannot be used effectively to remove the threat of dangerous terrorists. Some of the reasons often used to support this claim are that the information used to identify terrorists and their plots may include extremely sensitive intelligence sources and methods, the disclosure of which during trial would undermine future counter-terrorism operations. It is also claimed that the conditions under which some suspected terrorists are captured, especially in combat zones, make it impossible to prove criminal cases using normal evidentiary rules. Proponents also maintain that criminal prosecution is designed primarily to punish past behavior, thus it is deliberately skewed in favor of defendant, in order to assure that few, if any, innocents are punished. Counter-terrorism, on the other hand, aims to prevent future action, and thus requires a system that is weighed more heavily toward reducing the possibility of future harm, by ensuring that no guilty party will go free.
The Laws of War
are also seen by the proponents as inadequate. These laws allow the capture of enemy fighters, and also allow holding them for the duration of hostilities without trial
. However, these laws grew out of the need to regulate combat between professional armies accountable to a sovereign state, who were engaged in combat of possibly lengthy, but finite duration. Attempting to apply these laws to terrorists who are intermingled with a civilian population and accountable to no-one opens the possibility of indefinite detention
without trial, combined with a substantial likelihood of error.
Opponents of administrative detention challenge the above assumptions. While acknowledging the need to protect the sources and methods used to obtain sensitive intelligence, they maintain that existing laws, such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act
(CIPA), successfully balance the need to protect sensitive information, including the sources and means of intelligence gathering, with defendants' fair trial rights. They point to the historical record of prosecutors who were able to obtain convictions against terrorists on the basis of existing laws. Opponents maintain that in essence, administrative detention is a form of collective punishment
like being used in Israel. Since it does not require proof of individual guilt, it attributes to all members of a group the actions of a few.
or the obtainment of proper legal status. Immigration detention is controversial because it presents a clash between traditional notions of individual liberty and the territorial sovereignty
of States. Comparative studies on administrative detention practices of different countries found that those experiencing large-scale influxes of illegal migrants by sea (such as the USA and Australia
) typically have the most draconian systems. Proponents of administrative detention for illegal immigrants claim that detention is required since these immigrants have not committed any crime for which they could be prosecuted under existing laws, and that allowing them to await their potential deportation while not in custody runs a risk of their absconding. Opponents maintain that alternatives to detention exist, and that such alternatives are preferable because they do not violate personal liberty, as well as being less of a financial burden to the state. Among the alternatives suggested are supervised release to a Non-governmental organization
(NGO), the release into the custody of a private citizen who will guarantee the immigrant's participation in immigration hearings, and "Open detention" centers with mandatory reporting requirements.
in particular, administrative detention was first introduced by the British and French colonial authorities prior to and during World War II
. Created as a mechanism to control political dissent, it has ironically survived and made its way into the law books of the now-independent former colonies, who legitimized its use against their own political opponents in their constitutions.. In many cases, they were and codified as "emergency measures" or "internal security" acts. Bangladesh
, India
, Malaysia
, Myanmar
, Pakistan
, Singapore
and Sri Lanka
are notable examples of such former colonies who hold political prisoners under administrative detention which has its legal roots in British colonial
practices.. Vietnam
is an example where administrative detention was widely used by the French colonial authorities in the 1930s, to arrest those suspected of Communist activities. Post-independence, the now-ruling Communist authorities have employed very similar means to detain those suspected of ``counter-revolutionary" offenses.
Some of these political prisoners, such as Aung San Suu Kyi
in Myanmar, have become known worldwide due to the detention, and their cause is championed by human rights organizations.
has been criticized by Human Rights Watch
for not fully reforming the legal framework it inherited from the former Soviet Union
, and failing to bring its administrative detention system into accord with prevailing international norms. During the 2003 Presidential elections, Armenian police arbitrarily applied the Code of Administrative Offenses, under which administrative detention is authorized, to lock up dozens of opposition activists and supporters for periods of up to fifteen days.
and the United States, Australia
has a system of mandatory administrative detention for illegal immigrants, or asylum seekers who arrive at its shores without proper visas. The legal basis for this system is found in Australia's Migration Act 1958 (Cth), which authorized the indefinite detention of an unlawful non-citizen who can not be deported immediately. Human Rights Watch criticized this Australian policy, claiming it seriously contravenes Australia's obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. Additionally, opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats
, Australian Greens
and Rural Australians for Refugees
are admitted only for members of the military. Any member of the Brazilian Armed Forces may be imprisoned if found to be repeatedly in violation of the Military Disciplinary Regulations (Regulamento Disciplinar) by his or her superiors. Each military branch has issued a list of "transgressions" in their Disciplinary Regulations. The harshest punishment of this kind, in the Brazilian Army, is a 30-day imprisonment penalty.
Notwithstanding, members of the Brazilian Armed Forces under administrative detention may be granted a habeas corpus
by the justice system to deliver them from imprisonment. They retain their full rights as citizens.
report that states that in 2002, there were approximately 3,500 detainees in Burma, of which 1,300 are political prisoners, including parliament members. Burmese authorities often extend the detention of prisoners who have already served their prison sentences, by placing them under administrative detention. This practice is used even with elderly and infirm prisoners. One of the most notable cases of this practice is the on-going detention of Aung San Suu Kyi
.
addicts, prostitutes, vagrants and those considered to be insane. Since the 1978 legal reforms in China
, the public security organs (gong'an jiguan) , primarily the police, hold administrative detention powers which are used alongside the state's criminal justice system. Administrative detention is used against subjects that are viewed by the ruling regime as "socially undesirable", in order to maintain public order, social stability and political stability of the ruling regime. This target group includes prostitutes and their clients, drug addicts, political dissenters and petty criminals, who perform legal misdemeanors that are not serious enough for criminal prosecution. Custody and repatriation
(Chinese: 收容遣送; Pinyin: shōuróng qiǎnsòng) was also used until 2003 for people, especially peasants, who did not have required papers.
There are three main forms of these administrative detentions: "detention for education" ("Shourong jiaoyu"), coercive drug rehabilitation
("Qiangzhi jiedu"), and "reeducation through labor" ("Laodong jiaoyang"). In addition, administrative detention is used for several internal security reasons, such as detention under the Security Administrative Punishments Law ("Xingzheng juliu"); Administrative detention for questioning of suspects ("Luizhi panwen"); and detention of juvenile offenders in work-study schools ("Shourong jiaoyang")
The use of administrative detention in China has been criticized by international human rights organizations, as well as by domestic groups. These criticisms maintain that the police often abuse their power, that the execution of these powers is at the complete discretion of the police, and that there are no legal constraints placed on their execution.
, as well as individuals engaged in peaceful demonstrations expressing opposition to the war in Iraq or support for the Palestinian uprising. Human Rights Watch
has criticized this practice as the use of emergency legislation for 'repression of public dissent'.. Amnesty International
charges that relatives of political prisoners in Egypt have been administratively detained solely because of their family relationship.. The Egyptian government refuses to disclose how many administrative detainees are held, but human rights groups estimate that 16,000-20,000 are held in detention without charge.
at Mountjoy Prison (female detainees). The rest are held in prisons as well as border control (Garda Síochána) stations.
The Council of Europe
and human rights organizations have criticized the overcrowded conditions in which the detainees are held, as well as the fact that detainees are held together with convicted criminals. In addition, Human Rights Consultants have reported that Irish law does not protect the rights of detainees, by not informing them of their right to challenge the legality of their detention, nor recognizing their rights to have access to a lawyer and to have access to medical care.
as amended in 1979. Administrative detention is often used in cases where the available evidence consists of information obtained by the security services (particularly the Shin Bet), and where a trial would reveal sensitive security information, such as the identities of informers or infiltrators.
Although it is most commonly applied to alleged Palestinian militants and their accomplices, it has also been applied to Jewish Israeli citizens, including Jewish right-wing public-figures and activists (e.g. in the aftermath of the assassination of Yitzhak Rabin
).
Within Israel
, the Defense Minister has the authority to issue Administrative Detention orders for up to 6 months in cases where there is a reasonable chance that the person harms the security of the state. The same Minister has the authority to renew such orders. Likewise, the Chief of the General Staff can issue such orders, but valid for only 48 hours. Law enforcement authorities have to show cause within 48 hours (in a hearing behind closed doors). Administrative Detention orders can be appealed to the District Court and, if denied there, to the Supreme Court of Israel
. The District Court can annul such orders if it finds the administrative detention occurred for reasons other than security (e.g., common crimes, or the exercise of freedom of expression). Overall supervisory authority on the application of the relevant law rests with the Minister of Justice.
Within the West Bank
and Gaza Strip
, any local army commander can issue an administrative detention order, and the order can be appealed at the local military court, or, if denied there, at the Supreme Court. Here too, an administrative detention order is valid for at most six months, but can be renewed by the appropriate authority. Israel refers its use of administrative detention in the occupied territories to Article 78 of the Fourth Geneva Convention 1949, which states that "If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."
According to B'Tselem
, as of December 2009, 278 Palestinians were being held under administrative detention by the Israel Prisons Service and statistics on those held by the IDF were unavailable.
of 1973. This Act allowed the security forces to apprehend and detain persons suspected of terrorist activities without trial for an unlimited period. The introduction of the Act led directly to the creation of internment camps (particularly Long Kesh (the Maze) and the prison ship Maidstone
where suspects were detained, some for protracted periods.
The Act of 1973 followed a special powers Act constituted in 1993 and was amended a number of times during the late 20th and early 21st century, the most recent incarnation being the Act of 2005 which introduced the concept of the Control Order
, itself a more politically palatable means of limiting the freedom of a suspect without the need to provide a court of law with prima facie evidence of any wrong doing.
), and "sexually violent predators
", though the right of habeas corpus
still applies, and some determinations regarding mental illness and sexual dangerousness are made by juries.
During World War II
, the United States detained over 100,000 Japanese American
s in internment camps
; smaller numbers of German Americans
and Italian Americans
were interned.
The United States also utilizes administrative detention as a counter-terrorism measure, and as a means to control illegal immigration. There are approximately 100,000 persons in removal proceedings at any one time, and about 31,000 held in detention during these proceedings.
Following the September 11 attacks, the USA PATRIOT Act
was passed.
The Act expanded the authority of law enforcement agencies to use administrative detention for the stated purpose of fighting terrorism
in the United States and abroad. Under the Act, any person (citizen
or alien) suspected of terrorist connections may be administratively detained for up to seven days without the benefit of an habeas corpus
proceeding. The Attorney General
, at his discretion, may extend this seven-day period to six months, and this extension itself may be renewed indefinitely – legally creating the possibility of lifetime imprisonment without ever facing charges.. One of the criticisms of the PATRIOT Act is that the Attorney General's decision is not subject to any judicial review, unlike the situation in other democratic countries which have similar administrative detention laws.
As part of the War on Terror
, and particularly during and after the War in Afghanistan
, U.S. forces captured hundreds of suspected terrorists, who were subsequently detained without trial at the Guantanamo Bay detention camp. The U.S. initially refused to grant these detainees prisoner of war
status, holding that they were illegal (unlawful) enemy combatant
s. Of the 775 detainees incarcerated at Guantanamo, 420 have been released without charge, and only one has been tried and convicted. U.S. authorities claim that they intend to put 60-80 more on trial.
Amnesty International
believes that administrative detention breaches Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) which "makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law". The ICCPR does allow a government, under narrow circumstances, such as a public emergency threatening the life of a nation, to temporarily derogate from its obligation not to engage in arbitrary detention.
Amnesty International is also concerned that prisoners of conscience
are being "held solely for the non-violent exercise of their right to freedom of expression and association".
The United Nations
has created the Working Group on Arbitrary Detention
on the issue. One of the issues the group has focused on is the determination whether a detention is arbitrary or not – which is not as clear-cut in the case of administrative detention as it is in the case of criminal arrest. The group has proposed certain guidelines to aid in such determination. For example, it has suggested that any deprivations of liberty that violate the freedom of association
must be deemed arbitrary. Based on these guidelines, the group has condemned countries who have used long-term administrative detention when the detainees were held for the mere fact of belonging to an "illegal organization." .
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
and detention of individuals by the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
without trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
, usually for security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
reasons. A large number of countries, both democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
and undemocratic, resort to administrative detention as a means to combat terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
, control illegal immigration
Illegal immigration
Illegal immigration is the migration into a nation in violation of the immigration laws of that jurisdiction. Illegal immigration raises many political, economical and social issues and has become a source of major controversy in developed countries and the more successful developing countries.In...
, or to protect the ruling regime.
Unlike criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
incarceration
Incarceration
Incarceration is the detention of a person in prison, typically as punishment for a crime .People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of...
(imprisonment) imposed upon on conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
following a trial, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus - they seek to determine whether a defendant committed an offense in the past - the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future. It is meant to be preventive in nature rather than punitive (see preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
). The practice has been criticized by human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
organizations as a breach of civil and political rights.
Counter-terrorism
Administrative detentions are defined in the law of many of the world's states. In democratic countries using administrative detention as a counter-terrorismCounter-terrorism
Counter-terrorism is the practices, tactics, techniques, and strategies that governments, militaries, police departments and corporations adopt to prevent or in response to terrorist threats and/or acts, both real and imputed.The tactic of terrorism is available to insurgents and governments...
measure, the rationale given by its proponents is that legal existing systems are ill suited to handle the specific challenges presented by terrorism. Proponents of administrative detention maintain that criminal law's reliance on defendant rights and strict rules of evidence cannot be used effectively to remove the threat of dangerous terrorists. Some of the reasons often used to support this claim are that the information used to identify terrorists and their plots may include extremely sensitive intelligence sources and methods, the disclosure of which during trial would undermine future counter-terrorism operations. It is also claimed that the conditions under which some suspected terrorists are captured, especially in combat zones, make it impossible to prove criminal cases using normal evidentiary rules. Proponents also maintain that criminal prosecution is designed primarily to punish past behavior, thus it is deliberately skewed in favor of defendant, in order to assure that few, if any, innocents are punished. Counter-terrorism, on the other hand, aims to prevent future action, and thus requires a system that is weighed more heavily toward reducing the possibility of future harm, by ensuring that no guilty party will go free.
The Laws of War
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
are also seen by the proponents as inadequate. These laws allow the capture of enemy fighters, and also allow holding them for the duration of hostilities without trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
. However, these laws grew out of the need to regulate combat between professional armies accountable to a sovereign state, who were engaged in combat of possibly lengthy, but finite duration. Attempting to apply these laws to terrorists who are intermingled with a civilian population and accountable to no-one opens the possibility of indefinite detention
Indefinite detention
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws...
without trial, combined with a substantial likelihood of error.
Opponents of administrative detention challenge the above assumptions. While acknowledging the need to protect the sources and methods used to obtain sensitive intelligence, they maintain that existing laws, such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act
Classified Information Procedures Act
The Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
(CIPA), successfully balance the need to protect sensitive information, including the sources and means of intelligence gathering, with defendants' fair trial rights. They point to the historical record of prosecutors who were able to obtain convictions against terrorists on the basis of existing laws. Opponents maintain that in essence, administrative detention is a form of collective punishment
Collective punishment
Collective punishment is the punishment of a group of people as a result of the behavior of one or more other individuals or groups. The punished group may often have no direct association with the other individuals or groups, or direct control over their actions...
like being used in Israel. Since it does not require proof of individual guilt, it attributes to all members of a group the actions of a few.
Immigration Control
Many countries utilize administrative detention to hold illegal immigrants – those arriving at a country's borders without proper authorization – as an interim step to either deportationDeportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
or the obtainment of proper legal status. Immigration detention is controversial because it presents a clash between traditional notions of individual liberty and the territorial sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of States. Comparative studies on administrative detention practices of different countries found that those experiencing large-scale influxes of illegal migrants by sea (such as the USA and Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
) typically have the most draconian systems. Proponents of administrative detention for illegal immigrants claim that detention is required since these immigrants have not committed any crime for which they could be prosecuted under existing laws, and that allowing them to await their potential deportation while not in custody runs a risk of their absconding. Opponents maintain that alternatives to detention exist, and that such alternatives are preferable because they do not violate personal liberty, as well as being less of a financial burden to the state. Among the alternatives suggested are supervised release to a Non-governmental organization
Non-governmental organization
A non-governmental organization is a legally constituted organization created by natural or legal persons that operates independently from any government. The term originated from the United Nations , and is normally used to refer to organizations that do not form part of the government and are...
(NGO), the release into the custody of a private citizen who will guarantee the immigrant's participation in immigration hearings, and "Open detention" centers with mandatory reporting requirements.
Protection of the ruling regime
In many non-democratic countries, administrative detention is used by the ruling regime to suppress dissent and sanction opponents of the government. In AsiaAsia
Asia is the world's largest and most populous continent, located primarily in the eastern and northern hemispheres. It covers 8.7% of the Earth's total surface area and with approximately 3.879 billion people, it hosts 60% of the world's current human population...
in particular, administrative detention was first introduced by the British and French colonial authorities prior to and during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. Created as a mechanism to control political dissent, it has ironically survived and made its way into the law books of the now-independent former colonies, who legitimized its use against their own political opponents in their constitutions.. In many cases, they were and codified as "emergency measures" or "internal security" acts. Bangladesh
Bangladesh
Bangladesh , officially the People's Republic of Bangladesh is a sovereign state located in South Asia. It is bordered by India on all sides except for a small border with Burma to the far southeast and by the Bay of Bengal to the south...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, Malaysia
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
, Myanmar
Myanmar
Burma , officially the Republic of the Union of Myanmar , is a country in Southeast Asia. Burma is bordered by China on the northeast, Laos on the east, Thailand on the southeast, Bangladesh on the west, India on the northwest, the Bay of Bengal to the southwest, and the Andaman Sea on the south....
, Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
, Singapore
Internal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
and Sri Lanka
Sri Lanka
Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka is a country off the southern coast of the Indian subcontinent. Known until 1972 as Ceylon , Sri Lanka is an island surrounded by the Indian Ocean, the Gulf of Mannar and the Palk Strait, and lies in the vicinity of India and the...
are notable examples of such former colonies who hold political prisoners under administrative detention which has its legal roots in British colonial
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
practices.. Vietnam
Vietnam
Vietnam – sometimes spelled Viet Nam , officially the Socialist Republic of Vietnam – is the easternmost country on the Indochina Peninsula in Southeast Asia. It is bordered by China to the north, Laos to the northwest, Cambodia to the southwest, and the South China Sea –...
is an example where administrative detention was widely used by the French colonial authorities in the 1930s, to arrest those suspected of Communist activities. Post-independence, the now-ruling Communist authorities have employed very similar means to detain those suspected of ``counter-revolutionary" offenses.
Some of these political prisoners, such as Aung San Suu Kyi
Aung San Suu Kyi
Aung San Suu Kyi, AC is a Burmese opposition politician and the General Secretary of the National League for Democracy. In the 1990 general election, her National League for Democracy party won 59% of the national votes and 81% of the seats in Parliament. She had, however, already been detained...
in Myanmar, have become known worldwide due to the detention, and their cause is championed by human rights organizations.
Armenia
ArmeniaArmenia
Armenia , officially the Republic of Armenia , is a landlocked mountainous country in the Caucasus region of Eurasia...
has been criticized by Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
for not fully reforming the legal framework it inherited from the former Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
, and failing to bring its administrative detention system into accord with prevailing international norms. During the 2003 Presidential elections, Armenian police arbitrarily applied the Code of Administrative Offenses, under which administrative detention is authorized, to lock up dozens of opposition activists and supporters for periods of up to fifteen days.
Australia
Like many other countries experiencing large scale illegal immigration, such as CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and the United States, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
has a system of mandatory administrative detention for illegal immigrants, or asylum seekers who arrive at its shores without proper visas. The legal basis for this system is found in Australia's Migration Act 1958 (Cth), which authorized the indefinite detention of an unlawful non-citizen who can not be deported immediately. Human Rights Watch criticized this Australian policy, claiming it seriously contravenes Australia's obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law. Additionally, opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats
Australian Democrats
The Australian Democrats is an Australian political party espousing a socially liberal ideology. It was formed in 1977, by a merger of the Australia Party and the New LM, after principals of those minor parties secured the commitment of former Liberal minister Don Chipp, as a high profile leader...
, Australian Greens
Australian Greens
The Australian Greens, commonly known as The Greens, is an Australian green political party.The party was formed in 1992; however, its origins can be traced to the early environmental movement in Australia and the formation of the United Tasmania Group , the first Green party in the world, which...
and Rural Australians for Refugees
Brazil
Administrative detentions in BrazilBrazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
are admitted only for members of the military. Any member of the Brazilian Armed Forces may be imprisoned if found to be repeatedly in violation of the Military Disciplinary Regulations (Regulamento Disciplinar) by his or her superiors. Each military branch has issued a list of "transgressions" in their Disciplinary Regulations. The harshest punishment of this kind, in the Brazilian Army, is a 30-day imprisonment penalty.
Notwithstanding, members of the Brazilian Armed Forces under administrative detention may be granted a habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
by the justice system to deliver them from imprisonment. They retain their full rights as citizens.
Burma
In an overview that describes Burma as "one of the most repressive countries in Asia", Human rights Watch quotes a Red CrossInternational Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
report that states that in 2002, there were approximately 3,500 detainees in Burma, of which 1,300 are political prisoners, including parliament members. Burmese authorities often extend the detention of prisoners who have already served their prison sentences, by placing them under administrative detention. This practice is used even with elderly and infirm prisoners. One of the most notable cases of this practice is the on-going detention of Aung San Suu Kyi
Aung San Suu Kyi
Aung San Suu Kyi, AC is a Burmese opposition politician and the General Secretary of the National League for Democracy. In the 1990 general election, her National League for Democracy party won 59% of the national votes and 81% of the seats in Parliament. She had, however, already been detained...
.
China
The use of administrative detention in China has been commonplace since before 1949. At that time, it was used primarily against minor offenders as well as against opiumOpium
Opium is the dried latex obtained from the opium poppy . Opium contains up to 12% morphine, an alkaloid, which is frequently processed chemically to produce heroin for the illegal drug trade. The latex also includes codeine and non-narcotic alkaloids such as papaverine, thebaine and noscapine...
addicts, prostitutes, vagrants and those considered to be insane. Since the 1978 legal reforms in China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
, the public security organs (gong'an jiguan) , primarily the police, hold administrative detention powers which are used alongside the state's criminal justice system. Administrative detention is used against subjects that are viewed by the ruling regime as "socially undesirable", in order to maintain public order, social stability and political stability of the ruling regime. This target group includes prostitutes and their clients, drug addicts, political dissenters and petty criminals, who perform legal misdemeanors that are not serious enough for criminal prosecution. Custody and repatriation
Custody and repatriation
Custody and repatriation was an administrative procedure, established in 1982 and ended in 2003, by which the police in the People's Republic of China could detain people if they did not have a residence permit or temporary living permit , and return them to the place where they could legally...
(Chinese: 收容遣送; Pinyin: shōuróng qiǎnsòng) was also used until 2003 for people, especially peasants, who did not have required papers.
There are three main forms of these administrative detentions: "detention for education" ("Shourong jiaoyu"), coercive drug rehabilitation
Drug rehabilitation
Drug rehabilitation is a term for the processes of medical or psychotherapeutic treatment, for dependency on psychoactive substances such as alcohol, prescription drugs, and so-called street drugs such as cocaine, heroin or amphetamines...
("Qiangzhi jiedu"), and "reeducation through labor" ("Laodong jiaoyang"). In addition, administrative detention is used for several internal security reasons, such as detention under the Security Administrative Punishments Law ("Xingzheng juliu"); Administrative detention for questioning of suspects ("Luizhi panwen"); and detention of juvenile offenders in work-study schools ("Shourong jiaoyang")
The use of administrative detention in China has been criticized by international human rights organizations, as well as by domestic groups. These criticisms maintain that the police often abuse their power, that the execution of these powers is at the complete discretion of the police, and that there are no legal constraints placed on their execution.
Egypt
Egypt's Emergency Law No. 162 of 1958 authorizes the government to suspend basic civil liberties by declaring a state of emergency. Such a state of emergency has been in force almost continuously since 1967. Acting under this law, Egyptian authorities have administratively detained individuals who were suspected of membership in banned organizations such as the Muslim BrotherhoodMuslim Brotherhood
The Society of the Muslim Brothers is the world's oldest and one of the largest Islamist parties, and is the largest political opposition organization in many Arab states. It was founded in 1928 in Egypt by the Islamic scholar and schoolteacher Hassan al-Banna and by the late 1940s had an...
, as well as individuals engaged in peaceful demonstrations expressing opposition to the war in Iraq or support for the Palestinian uprising. Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
has criticized this practice as the use of emergency legislation for 'repression of public dissent'.. Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
charges that relatives of political prisoners in Egypt have been administratively detained solely because of their family relationship.. The Egyptian government refuses to disclose how many administrative detainees are held, but human rights groups estimate that 16,000-20,000 are held in detention without charge.
Ireland
Ireland utilizes administrative detention to control illegal immigration. Beginning in 1996, a legal framework was put in place to authorize the use of administrative detention for this purpose. This legal framework includes the Refugee Act, 1996, the Immigration Acts, 1999, 2003 and 2004, and the Illegal Immigrants (Trafficking) Act 2000. According to official Irish government statistics, in 2003-2004, a total of 2,798 people were administratively detained for immigration-related reasons, two thirds of whom were held in prison for periods of longer than 51 days. The vast majority (more than 90%) of detainees are held in one of two Dublin prisons, Cloverhill Prison (male detainees) and the Dóchas CentreDóchas Centre
The Dóchas Centre is a closed, medium security prison for females aged 18 years and over located in Mountjoy Prison in Dublin. It is also the committal prison for females committed on remand or sentenced from all Courts outside the Munster area of Ireland.Dóchas is one of two women's prisons in...
at Mountjoy Prison (female detainees). The rest are held in prisons as well as border control (Garda Síochána) stations.
The Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
and human rights organizations have criticized the overcrowded conditions in which the detainees are held, as well as the fact that detainees are held together with convicted criminals. In addition, Human Rights Consultants have reported that Irish law does not protect the rights of detainees, by not informing them of their right to challenge the legality of their detention, nor recognizing their rights to have access to a lawyer and to have access to medical care.
Israel
The legal basis for Israel's use of Administrative Detention is the British Mandate 1945 Law on Authority in States of Emergency'Defence (Emergency) Regulations
The Defence Regulations are an expansive set of regulations that were first enacted by the Mandatory authorities in British Mandate Palestine on 27 September 1945...
as amended in 1979. Administrative detention is often used in cases where the available evidence consists of information obtained by the security services (particularly the Shin Bet), and where a trial would reveal sensitive security information, such as the identities of informers or infiltrators.
Although it is most commonly applied to alleged Palestinian militants and their accomplices, it has also been applied to Jewish Israeli citizens, including Jewish right-wing public-figures and activists (e.g. in the aftermath of the assassination of Yitzhak Rabin
Assassination of Yitzhak Rabin
The assassination of Yitzhak Rabin took place on November 4, 1995 at 21:30, at the end of a rally in support of the Oslo Accords at the Kings of Israel Square in Tel Aviv...
).
Within Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, the Defense Minister has the authority to issue Administrative Detention orders for up to 6 months in cases where there is a reasonable chance that the person harms the security of the state. The same Minister has the authority to renew such orders. Likewise, the Chief of the General Staff can issue such orders, but valid for only 48 hours. Law enforcement authorities have to show cause within 48 hours (in a hearing behind closed doors). Administrative Detention orders can be appealed to the District Court and, if denied there, to the Supreme Court of Israel
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
. The District Court can annul such orders if it finds the administrative detention occurred for reasons other than security (e.g., common crimes, or the exercise of freedom of expression). Overall supervisory authority on the application of the relevant law rests with the Minister of Justice.
Within the West Bank
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
and Gaza Strip
Gaza Strip
thumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
, any local army commander can issue an administrative detention order, and the order can be appealed at the local military court, or, if denied there, at the Supreme Court. Here too, an administrative detention order is valid for at most six months, but can be renewed by the appropriate authority. Israel refers its use of administrative detention in the occupied territories to Article 78 of the Fourth Geneva Convention 1949, which states that "If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."
According to B'Tselem
B'Tselem
B'Tselem is an Israeli non-governmental organization . It calls itself "The Israeli Information Center for Human Rights in the Occupied Territories"...
, as of December 2009, 278 Palestinians were being held under administrative detention by the Israel Prisons Service and statistics on those held by the IDF were unavailable.
United Kingdom
The UK has maintained many forms of Administrative detention over the years. The most recent forms were a series of Acts intended to introduce a form of administrative detention to Northern Ireland under the auspices of the Prevention of Terrorism ActPrevention of Terrorism Act
Prevention of Terrorism Act could refer to four different sets of Acts of Parliament, in three different countries:* Prevention of Terrorism Acts, passed between 1974 and 1989 to deal with terrorism in Northern Ireland in the United Kingdom...
of 1973. This Act allowed the security forces to apprehend and detain persons suspected of terrorist activities without trial for an unlimited period. The introduction of the Act led directly to the creation of internment camps (particularly Long Kesh (the Maze) and the prison ship Maidstone
Maidstone
Maidstone is the county town of Kent, England, south-east of London. The River Medway runs through the centre of the town linking Maidstone to Rochester and the Thames Estuary. Historically, the river was a source and route for much of the town's trade. Maidstone was the centre of the agricultural...
where suspects were detained, some for protracted periods.
The Act of 1973 followed a special powers Act constituted in 1993 and was amended a number of times during the late 20th and early 21st century, the most recent incarnation being the Act of 2005 which introduced the concept of the Control Order
Control order
A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...
, itself a more politically palatable means of limiting the freedom of a suspect without the need to provide a court of law with prima facie evidence of any wrong doing.
United States
The United States currently uses indefinite detention without trial - known under various names as internment, civil commitment, preventive detention, or administrative detention - to hold people who fall within a few narrow categories, including the mentally ill (involuntary commitmentInvoluntary commitment
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
), and "sexually violent predators
Sexual predator
The term sexual predator is used pejoratively to describe a person seen as obtaining or trying to obtain sexual contact with another person in a metaphorically "predatory" manner. Analogous to how a predator hunts down its prey, so the sexual predator is thought to "hunt" for his or her sex partners...
", though the right of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
still applies, and some determinations regarding mental illness and sexual dangerousness are made by juries.
During World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the United States detained over 100,000 Japanese American
Japanese American
are American people of Japanese heritage. Japanese Americans have historically been among the three largest Asian American communities, but in recent decades have become the sixth largest group at roughly 1,204,205, including those of mixed-race or mixed-ethnicity...
s in internment camps
Japanese American internment
Japanese-American internment was the relocation and internment by the United States government in 1942 of approximately 110,000 Japanese Americans and Japanese who lived along the Pacific coast of the United States to camps called "War Relocation Camps," in the wake of Imperial Japan's attack on...
; smaller numbers of German Americans
German American internment
German American Internment refers to the detention of people of German citizenship in the United States during World War I and World War II.-Civilian internees:...
and Italian Americans
Italian American internment
Italian American internment refers to the internment of Italian Americans in the United States during World War II.-Terms:The term "Italian American" does not have a legal definition...
were interned.
The United States also utilizes administrative detention as a counter-terrorism measure, and as a means to control illegal immigration. There are approximately 100,000 persons in removal proceedings at any one time, and about 31,000 held in detention during these proceedings.
Following the September 11 attacks, the USA PATRIOT Act
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
was passed.
The Act expanded the authority of law enforcement agencies to use administrative detention for the stated purpose of fighting terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
in the United States and abroad. Under the Act, any person (citizen
United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
or alien) suspected of terrorist connections may be administratively detained for up to seven days without the benefit of an habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
proceeding. The Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
, at his discretion, may extend this seven-day period to six months, and this extension itself may be renewed indefinitely – legally creating the possibility of lifetime imprisonment without ever facing charges.. One of the criticisms of the PATRIOT Act is that the Attorney General's decision is not subject to any judicial review, unlike the situation in other democratic countries which have similar administrative detention laws.
As part of the War on Terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
, and particularly during and after the War in Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
, U.S. forces captured hundreds of suspected terrorists, who were subsequently detained without trial at the Guantanamo Bay detention camp. The U.S. initially refused to grant these detainees prisoner of war
Prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
status, holding that they were illegal (unlawful) enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
s. Of the 775 detainees incarcerated at Guantanamo, 420 have been released without charge, and only one has been tried and convicted. U.S. authorities claim that they intend to put 60-80 more on trial.
Criticism by human rights groups
Administrative detention practices have come under severe criticism, with critics claiming that it breaches human rights.Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
believes that administrative detention breaches Article 9 of the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
(ICCPR) which "makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law". The ICCPR does allow a government, under narrow circumstances, such as a public emergency threatening the life of a nation, to temporarily derogate from its obligation not to engage in arbitrary detention.
Amnesty International is also concerned that prisoners of conscience
Prisoner of conscience
Prisoner of conscience is a term defined in Peter Benenson's 1961 article "The Forgotten Prisoners" often used by the human rights group Amnesty International. It can refer to anyone imprisoned because of their race, religion, or political views...
are being "held solely for the non-violent exercise of their right to freedom of expression and association".
The United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
has created the Working Group on Arbitrary Detention
Working Group on Arbitrary Detention
The Working Group on Arbitrary Detention is a UN-mandated body of independent human rights experts that investigates cases of arbitrary arrest and detention that may be in violation of international human rights law....
on the issue. One of the issues the group has focused on is the determination whether a detention is arbitrary or not – which is not as clear-cut in the case of administrative detention as it is in the case of criminal arrest. The group has proposed certain guidelines to aid in such determination. For example, it has suggested that any deprivations of liberty that violate the freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
must be deemed arbitrary. Based on these guidelines, the group has condemned countries who have used long-term administrative detention when the detainees were held for the mere fact of belonging to an "illegal organization." .