Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, Oxford.
The UN Working Group on Arbitrary Detention (WGAD) is the only body in the international human rights system with a specific mandate to receive and examine cases on arbitrary deprivation of liberty. In this capacity it has, since 1991, interpreted and enforced the international legal rules on deprivation of liberty as they have developed in domestic, regional and international jurisdictions. Its jurisprudence can be accessed via its search engine. Earlier this year one of the members of the WGAD, Professor Mads Andenas, presented before the UN Human Rights Council the report 2012 WGAD activities.
Obaidullah v United States
Potential applicants and counsel are becoming increasingly aware of the opinions which make up the WGAD’s body of jurisprudence. A recent illustrative example is the opinion handed down by the WGAD in Obaidullah v United States on the detention of Bertola Obaidullah at Guantánamo Bay (distributed on 3 June 2013; to be published in December). In its opinion in Obaidullah the UN Working Group on Arbitrary Detention found against the United States in relation to the arbitrary detention of Obaidullah (pictured above right, credit).
Obaidullah, a twenty-nine-year-old ethnic Pashtun Afghan citizen resident in the village of Milani, Khost province, had on 21 July 2002 been taken into custody during a raid on his family home. He was interned at a US military station and subsequently held for three months. In its opinion the WGAD made clear that ‘while imprisoned in Afghanistan, Mr. Obaidullah was not informed of the reasons for his detention. He was threatened, coerced into making false statements and tortured’ (at ). The WGAD said the following about Obaidullah’s later detention at Guantánamo Bay: ‘In October 2002, United States military forces transferred Mr. Obaidullah to the United States detention facility at Guantánamo Bay, Cuba, where he continued to be subjected to torture and inhuman treatment. More than ten years later, Mr. Obaidullah continues to be detained at Guantánamo Bay. He was not provided any reasons for his detention nor charged’ (at ).
The opinion of the Working Group concluded that: ‘The deprivation of liberty of Mr. Obaidullah is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and 9 and 14 of the International Covenant on Civil and Political Rights.’ (See the excellent blog post by Marine Farshian on La Revue des Droits de l’Homme.)
The Reliance by the WGAD upon the Jurisprudence of the ICJ
The finding against the United States in Obaidullah shows that the jurisprudence of the WGAD has teeth. But it also brings out another aspect of the WGAD jurisprudence. Given that, in Bruno Simma’s words, human rights bodies have been seen to ‘have developed doctrines and rules custom-made for human rights … which might go too far for more conservative circles of the legal mainstream’ (B Simma, ‘Human Rights before the International Court of Justice’ in CJ Tams & J Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 322), it is interesting to note the thorough reliance by the WGAD upon the jurisprudence of the International Court of Justice (ICJ).
The Working Group began its analysis of the issues by recalling that the ICJ, in Tehran Hostages ( ICJ Rep 1980 3 at ), emphasized that ‘wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights’. The Working Group went on by saying:
In the 2006 annual report [15.] the Working Group repeated that a State’s jurisdiction and responsibility extend beyond its territorial boundaries, referring to the consistent jurisprudence of the Human Rights Committee on the ICCPR. The Working Group and the Human Rights Committee here apply general principles as they have been clarified by the International Court of Justice and gradually also in the jurisprudence of the regional human rights courts (in particular, the European Court of Human Rights and the Inter-American Court of Human Rights) see in particular [Israeli Wall ( ICJ Rep 136)] and [Georgia v Russia, Provisional Measures  ICJ Rep 353] at  where the Court stated that ‘these provisions of CERD generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory’. The nature of human rights treaties and their foundation in universality, require a justification for a territorial limit on their scope, and this is a consequence of the object and purpose of human rights treaties (at ).
Adding to this, the Working Group stated that:
It is at the core of this general rule that a state’s international law obligations equally apply to its acts abroad, and those of its agents abroad, and it is clear that it applies when individuals are held in detention. Adopting ‘a contextual and purposive interpretation’ of article 2 of the ICCPR, the Human Rights Committee has confirmed that ‘a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party’. [E/CN.4/2006/120 at 11] It is widely accepted that persons incarcerated by state authorities in detention facilities located outside the state’s territory are subject to the effective control of that state (at ).
The Working Group concluded that the United States was bound by international human rights law regarding its detention of Obaidullah. In this regard, too, it relied explicitly on the jurisprudence of the ICJ, which in Diallo ( ICJ Rep 639 at ) stated that art 9(1)–(2) of the ICCPR applies in principle to any form of detention ‘whatever its legal basis and the objective being pursued’. The WGAD emphasized that ‘the application of international humanitarian law to an international or non-international armed conflict does not exclude application of human rights law. The two bodies of law are complimentary and not mutually exclusive’. The reader could be forgiven for thinking that, while there is no explicit reference, the WGAD is here taking another leaf out of the ICJ’s book, that is, from Legality of Nuclear Weapons  ICJ Rep 226  and Israeli Wall  ICJ Rep 136 . On the whole, it is striking to note how far the WGAD goes in explicitly relying upon the jurisprudence of other courts—and most notably the ICJ.
For its part the ICJ has, in the last few decades, made a reality of what it said in WHO Regional Headquarters, that is, that international law ‘does not operate in a vacuum’, but rather operates with ‘relation to facts and in the context of a wider framework of legal rules of which it forms only a part’ ( ICJ Rep 73 at ). The ICJ now liberally cites the jurisprudence of other courts and tribunals. This is, obviously, a two way street, and the felicitous way in which the WGAD in Obaidullah relies upon the jurisprudence of the ICJ is an example of how fruitful this dialogue can be (see in this regard also the recent speech on this very topic by President Spielmann of the European Court of Human Rights delivered, appositely, at the ICJ).
Arbitrary Detention as Vector for Dialogue
Arbitrary detention is becoming an important vector for this type of dialogue, and it shows no sign of decreasing in importance in that regard, not least as the Working Group, in its conclusion, held that even if the United States had derogated from the ICCPR (which it has not) ‘customary international law on arbitrary detention would apply, and in this case it does so as a peremptory norm (jus cogens) of international law’ (at ). As Obaidullah shows, the jurisprudence of the WGAD has genuine force—not least by having tapped into the resources of the mainstream of international law, as expressed in the jurisprudence of the ICJ.
But Obaidullah has still not been freed from Guantánamo Bay, having been interned there now for nearly eleven years. It could surely be argued that this fact severely undercuts the claims made above as to the force of the WGAD case law. How, it could be asked, can one in the absence of compliance and enforcement draw such a conclusion? One answer is to say that problems of compliance and enforcement have—not least in cases involving the United States—severely undercut even the force of the ICJ’s case law. It would be wrong to conclude from the—unsurprising—fact that the sole superpower is dragging its feet that the jurisprudence of the WGAD is toothless.