Detention (imprisonment)
Encyclopedia
Detention is the process when a state
, government
or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to (pending) criminal charges being raised against the individual as part of a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area (generally called a detention centre), either for interrogation
, or as punishment
for a crime (see prison
).
The term can also be used in reference to the holding of property
, for the same reasons. The process of detainment may or may not have been preceded or followed with an arrest
. The prisoners in Guantánamo Bay are for example referred to as "detainees".
Detainee is a term used by certain governments and their military to refer to individuals held in custody, such as those it does not classify and treat as either prisoners of war or suspects in criminal cases. It is used to refer to "any person captured or otherwise detained by an armed force." More generally, it is "someone held in custody."
Article 9 of the Universal Declaration of Human Rights
states that, "No one shall be subjected to arbitrary arrest, detention or exile." In wars between nations, detainees are referenced in the Fourth Geneva Convention
.
where a person's freedom of liberty is removed can be classed as detention, although the term is often associated with persons who are being held without warrant
or charge before any have been raised. Being detained for the purposes of a drugs search is tantamount to a temporary arrest
, as it is not yet known whether charges can be brought against an individual, pending the outcome of the search. The term 'detained' often refers to the immediacy when someone has their liberty deprived, often before an arrest or pre-arrest procedure has yet been followed. For example, a shoplifter being pursued and restrained, but not yet informed he/she is under arrest or read his rights would be classed as 'detained'.
ed in a police-cell, remand prison or other detention centre before trial
or sentencing.
The length of detention of suspected terrorists
, with the justification of taking an action that would aid counter-terrorism
, varies according to country or situation, as well as the law
s which regulate it.
The Terrorism Act 2006
in the United Kingdom
lengthened the 14-day limit for detention without an arrest warrant
or an indictment from the Terrorism Act 2000
to 28 days. A controversial Government proposal for an extension to 90 days was rejected by the House of Commons. English criminal law
requires the detainer/arrestor to have reasonable grounds to suspect (reasonable suspicion
) when detaining (or arresting) someone.
. This has been applied notably by the United States
after the September 11, 2001 attacks
. Before the Combatant Status Review Tribunal
s, created for reviewing the status of the Guantanamo detainees, the United States has argued that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply, and that it therefore may hold captured al Qaeda and Taliban operatives throughout the duration of that conflict, without granting them a criminal trial.
The U.S. military regulates treatment of detainees in the manual Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
, last revised in 1997.
The term "unlawful combatant
" came into public awareness during and after the War in Afghanistan (2001–present)
, as the U.S. detained members of the Taliban and al-Qaeda
captured in that war, and determined them to be unlawful combatant
s. This had generated considerable debate around the globe. The U.S. government refers to these captured enemy combatants as "detainees" because they did not qualify as prisoners of war
under the definition found in the Geneva Conventions
.
Under the Obama administration the term enemy combatants was also removed from the lexicon and further defined under the 2010 Defense Omnibus Bill:
Section 948b. Military commissions generally: (a) Purpose-This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.
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...
, government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to (pending) criminal charges being raised against the individual as part of a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area (generally called a detention centre), either for interrogation
Interrogation
Interrogation is interviewing as commonly employed by officers of the police, military, and Intelligence agencies with the goal of extracting a confession or obtaining information. Subjects of interrogation are often the suspects, victims, or witnesses of a crime...
, or as punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
for a crime (see prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
).
The term can also be used in reference to the holding of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, for the same reasons. The process of detainment may or may not have been preceded or followed with an arrest
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...
. The prisoners in Guantánamo Bay are for example referred to as "detainees".
Detainee is a term used by certain governments and their military to refer to individuals held in custody, such as those it does not classify and treat as either prisoners of war or suspects in criminal cases. It is used to refer to "any person captured or otherwise detained by an armed force." More generally, it is "someone held in custody."
Article 9 of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
states that, "No one shall be subjected to arbitrary arrest, detention or exile." In wars between nations, detainees are referenced in the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
.
Definition of detention
Any form of imprisonmentPrison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
where a person's freedom of liberty is removed can be classed as detention, although the term is often associated with persons who are being held without warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
or charge before any have been raised. Being detained for the purposes of a drugs search is tantamount to a temporary arrest
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...
, as it is not yet known whether charges can be brought against an individual, pending the outcome of the search. The term 'detained' often refers to the immediacy when someone has their liberty deprived, often before an arrest or pre-arrest procedure has yet been followed. For example, a shoplifter being pursued and restrained, but not yet informed he/she is under arrest or read his rights would be classed as 'detained'.
Detention of a suspect
The detention of suspects is the process of keeping a person who has been arrestArrest
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...
ed in a police-cell, remand prison or other detention centre before 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...
or sentencing.
The length of detention of suspected terrorists
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...
, with the justification of taking an action that would aid counter-terrorism
Counter-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...
, varies according to country or situation, as well as the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s which regulate it.
The Terrorism Act 2006
Terrorism Act 2006
The Terrorism Act 2006 is an Act of the Parliament of the United Kingdom that received Royal Assent on 30 March 2006, after being introduced on 12 October 2005. The Act creates new offences related to terrorism, and amends existing ones. The Act was drafted in the aftermath of the 7 July 2005...
in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
lengthened the 14-day limit for detention without an arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
or an indictment from the Terrorism Act 2000
Terrorism Act 2000
The Terrorism Act 2000 is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism Act 1989 and the Northern Ireland Act 1996...
to 28 days. A controversial Government proposal for an extension to 90 days was rejected by the House of Commons. English criminal law
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
requires the detainer/arrestor to have reasonable grounds to suspect (reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
) when detaining (or arresting) someone.
Indefinite detention
Indefinite detention of an individual occurs frequently in wartime under the laws of warLaws 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...
. This has been applied notably by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
after the September 11, 2001 attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
. Before the Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s, created for reviewing the status of the Guantanamo detainees, the United States has argued that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply, and that it therefore may hold captured al Qaeda and Taliban operatives throughout the duration of that conflict, without granting them a criminal trial.
The U.S. military regulates treatment of detainees in the manual Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees is the full title of a United States Army regulation usually referred to as AR 190-8, that lays out how the United States Army should treat captives....
, last revised in 1997.
The term "unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
" came into public awareness during and after the War in Afghanistan (2001–present)
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...
, as the U.S. detained members of the Taliban and al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
captured in that war, and determined them to be unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
s. This had generated considerable debate around the globe. The U.S. government refers to these captured enemy combatants as "detainees" because they did not qualify as prisoners 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...
under the definition found in the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
.
Under the Obama administration the term enemy combatants was also removed from the lexicon and further defined under the 2010 Defense Omnibus Bill:
Section 948b. Military commissions generally: (a) Purpose-This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.
See also
- Arbitrary arrest and detentionArbitrary arrest and detentionArbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law...
- Civil libertiesCivil libertiesCivil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
- Defence Regulation 18BDefence Regulation 18BDefence Regulation 18B, often referred to as simply 18B, was the most famous of the Defence Regulations used by the British Government during World War II. The complete technical reference name for this rule was: Regulation 18B of the Defence Regulations 1939. It allowed for the internment of...
- Detention of suspectsDetention of suspectsThe detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
- Human rightsHuman rightsHuman 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...
- Illegal combatant
- Immigration detentionImmigration detentionImmigration detention is the policy of holding individuals suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and removal in detention until a decision is made by immigration authorities to grant a visa and release them into the community, or to...
- Prison reformPrison reformPrison reform is the attempt to improve conditions inside prisons, aiming at a more effective penal system.-History:Prisons have only been used as the primary punishment for criminal acts in the last couple of centuries...
- PrisonerPrisonerA prisoner is someone incarcerated in a prison, jail or similar facility.Prisoner or The Prisoner may also refer to:* Prisoner of war, a soldier in wartime, held as by an enemy* Political prisoner, someone held in prison for their ideology...
- Quasi-criminalQuasi-criminalQuasi-criminal means a lawsuit or equity proceeding that has some, but not all, of the qualities of a criminal prosecution. It may appear in either a Common law or a Civil law jurisdiction...
- Restorative justiceRestorative justiceRestorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
- Security certificateSecurity certificateIn Canadian law, a security certificate is a mechanism by which the Government of Canada can detain and deport foreign nationals and all other non-citizens living in Canada...
- Summary jurisdictionSummary jurisdictionSummary jurisdiction, in the widest sense of the phrase, in English law includes the power asserted by courts of record to deal brevi manu with contempts of court without the intervention of a jury. Probably the power was originally exercisable only when the fact was notorious, i.e. done in...
- Extrajudicial detentionExtrajudicial detentionArbitrary or extrajudicial detention is the detention of individuals by a state, without ever laying formal charges against them.Although it has a long history of legitimate use in wartime , detention without charge, sometimes in secret, has been one of the hallmarks of totalitarian states...