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Convincing international evidence demonstrates that immigration detention adversely affects mental health. During the COVID-19 outbreak, additional concerns were raised about the safety and appropriateness of immigration detention. Consequently, several hundred migrants were released en masse from UK immigration detention centres, and few new detentions took place. Over 70% fewer migrants were held in detention centres in June 2020 compared with December 2019. This large ‘natural experiment’ has demonstrated that detaining fewer migrants is possible and it provides an opportunity to review the necessity for large-scale detention for the purpose of immigration control, as well as its impact on health inequalities. Additionally, given that detainee release arrangements had already been considered unsafe prior to the pandemic, clinicians and service providers should take into consideration that many of those released may not be receiving adequate post-release continuity of care.
This article considers the international legal obligations relevant to States when withdrawing from situations of armed conflict. While a growing literature has focused on precisely when armed conflicts come to a legal end, as well as obligations triggered by the cessation of active hostilities, comparatively little attention has been paid to the legal implications of withdrawals from armed conflict and the contours of the obligations relevant to States in doing so. Following in the wake of just war scholarship endeavouring to distil jus ex bello principles, this article examines States’ obligations when ending their participation in armed conflicts from the perspective of international humanitarian law (IHL). It shows that while it is generally understood that IHL ceases to apply at the end of armed conflict, this is in reality a significant simplification; a number of obligations actually endure. Such rules act as exceptions to the general temporal scope of IHL and continue to govern withdrawing States, in effect straddling the in bello and post bellum phases of armed conflict. The article then develops three key end-of-participation obligations: obligations governing detention and transfer of persons, obligations imposed by Article 1 common to the four Geneva Conventions, and obligations relating to accountability and the consequences of conflict.
Australia has instigated extreme extraterritorial border control policies to deter and deny people from entering its territory without permission. These include financial penalties for airline carriers who transport people without authority (including refugees); the use of Australian staff in foreign airports to assist in identifying people without permission to travel to Australia; utilization of surveillance technologies; interception of boats suspected of carrying people without permission to Australia; and the processing and detention of people arriving irregularly by boat in the pacific nations of Papua New Guinea and Nauru. Australia’s extraterritorial policies risk the return of refugees to countries where they fear persecution in contravention of Australia’s international obligations and result in the detention of vulnerable people in violation of international law. Australia’s excessive policies also undermine the international protection regime by setting a harmful example for other states who wish to deny refugees protection. Australia’s extraterritorial practices must be dismantled to ensure Australia complies with its international obligations. Australia should serve as a warning against the harmful impact of extraterritorial border control policies rather than an inspiration for any state considering adopting similar measures.
This chapter explores the contrasting use of ordinances to detain two men thought to be Britain’s principal political enemies in West Africa in the 1890s. It begins with the deposition and exile of Prempeh of Asante in 1896. Under Prempeh, the Asante kingdom began to revive after its decline since the war of 1873–1874. Britain now sought to bring it under its influence, by inducing Prempeh to sign a treaty of protection. When he persistently refused to accept a Resident, colonial officials in Accra generated a pretext to invade Asante. Once there, Governor Maxwell decided to detain Prempeh, though he was no rebel, had not engaged in war, and had breached no treaty. His detention and ultimate exile was the result of pure imperial aggression and the perception that he needed to be removed to secure British control of Asante. It was unconstrained by any conception of the rule of law. By contrast, Bai Bureh, who was held responsible for the outbreak of the Hut Tax revolt in Sierra Leone in 1898, was held under an ad hominem ordinance after the Law Officers reported that he could not be tried for treason or rebellion in the newly proclaimed protectorate, not being a subject.
This chapter looks at the use of martial law to detain and try British subjects in the Cape and Natal in the Anglo-Boer War, and the legal questions raised. Since the legal nature of martial law was still contested, its ambit was a matter of negotiation between various parties, military and civilian, imperial and colonial. This is shown through the debates over the creation and role of a special court to deal with rebels, and over the introduction of a limited form of martial law in the Cape ports. The right of the military to detain under martial law was repeatedly challenged in litigation which revealed that the attitude of the judges in the Cape courts was often much more liberal than that of those in the Privy Council. The Cape legislature was also unwilling to indemnify the military for its actions unless the sentences of those held in prison as a result of martial law trials were reviewed and revised. This chapter shows that, while Cape politicians often sought to rein in martial law powers by subjecting them to common law tests, both the military authorities and judges in London were more prepared to concede the executive exceptional powers in times of perceived emergency.
This chapter explores the influence of public opinion on official policy towards detention, by looking at the cases of two leaders removed in the 1880s from Egypt, which was neither a colony nor a protectorate, but was under de facto British control after the invasion of 1882. The first case involves Ahmed Urabi Pasha, the Egyptian nationalist leader whose removal from power was the aim of the invasion. Given that the invasion itself represented a political volte-face for Gladstone, and in view of the support Urabi had attracted from influential Britons, the British wanted to ensure that Urabi was seen to have a fair trial in an Egyptian court. They consequently used their influence to broker a settlement under which Urabi was expelled from Egypt, and lived in voluntary exile in Ceylon. By contrast, in the second case, that of the Sudanese leader and notorious slave trader Al-Zubayr Rahma Mansur, the Foreign Office and Colonial Office were content to hold him in detention under an ad hominem ordinance at Gibraltar, at the behest of the military. With no political supporters to defend his case in London, the British authorities had no qualms about detaining him without trial.
This chapter examines the detention of African chiefs who stood in the way of British expansion in the Niger Delta in the era of the Berlin Conference. At a time when the legal conception of protectorates was being rethought, Britain began to claim more extensive jurisdiction over chiefs with whom it had signed treaties. This chapter concerns the cases of three rulers – Jaja of Opobo, Nana Olomu and Ovonramwen of Benin – each of whom had signed the standard form treaty of protection first taken to the region in 1884. Jaja had struck out a clause permitting free trade, and, when he continued to insist on controlling his rivers, he was removed to Accra. After an inquiry into his conduct, he was removed under an ordinance. In the following decade, after the creation of the Niger Coast Protectorate, Nana, who had also blocked trade after reserving his rights, was tried by a career soldier in a consular court, before also being exiled by ordinance. Ovonramwen’s deposition and removal (after an ambush of a British party on its way to Benin City) was made without trial or authorising ordinance, but by a simple assertion of power which was not legally validated until 1911.
This chapter turns to the use of ad hominem legislation to authorise the detention in the Cape of Zulu political prisoners, removed from Natal. It examines the cases of the Hlubi chief Langalibalele and the Zulu kings Cetshwayo and Dinuzulu. Each attracted the support of the family of Bishop J. W. Colenso, who drew the attention of the public in Britain to their cases. Langalibalele was banished from Natal in 1874, after a ‘customary’ trial presided over by Governor Benjamin Pine for rebellion. Although the trial attracted much criticism from the Colonial Office for violating the rule of law, political sensibilities ensured that Langalibalele remained in detention. He was soon joined by Cetshwayo, who was initially held as a prisoner of war but then detained at the Cape under another special ordinance. His subsequent release owed more to his importance for the political settlement of Zululand than to concerns about the rule of law. However, concerns that the rule of law be seen to be upheld – and the experience of Langalibalele not be repeated – informed British attitudes towards the trial of Dinuzulu for rebellion in 1889, which ended in his exile to St Helena under sentence.
This chapter considers the first cases arising from African detentions in which courts in London considered the legality of ad hominem ordinances. The first case taken to the Privy Council was that of the Mpondo chief, Sigcau, who was detained in Griqualand East in 1895. Although the Privy Council rejected the Cape government’s appeal from Chief Justice de Villiers’s decision to free him, it confirmed that a sovereign legislature could authorise ad hominem detention laws. In the second case, that of chief Sekgoma Letsholathibe, the Court of Appeal upheld a detention proclamation, rejecting arguments which claimed that the detainee had common law rights confirmed by Magna Carta, by holding that parliament had validly delegated its legislative power through the Foreign Jurisdiction Act. In the third case, that of Saad Zaghlul Pasha, the Privy Council also rejected a claim for common law rights of liberty, on the ground that, in crown colonies, the crown had full power to detain under its prerogative. These cases show that, when questions of the liberty of Africans came before English judges, they opted for a formal vision of rule by law over a substantive vision of the rule of law.
The EU has adopted several legal instruments on immigration, asylum and borders. This legislation regulates many important aspects of these matters, including the way that Member States use detention in the context of the enforcement of their immigration and asylum laws. The right to liberty under Article 6 of the Charter applies to deprivations of liberty ordered in connection with a Member State’s implementation of EU law. Though EU-level regulation of detention is relatively recent, the CJEU has had several opportunities to elaborate on the content of the right to liberty in this context. This chapter examines how the CJEU has grappled with the competing interests of safeguarding the right to liberty and ensuring an effective system for immigration, asylum and borders in the EU. In so doing, it compares and contrasts the CJEU’s approach with the right to liberty under Article 5 of the European Convention on Human Rights and the related case law of the European Court of Human Rights. The chapter concludes that, though the CJEU does in many cases keep its case law in line with that of the ECtHR, a distinct, EU-specific jurisprudence on the right to liberty is beginning to emerge.
Changes in mental health law in England and Wales between 1959 and 2010 are reviewed – from the earlier Lunacy Act (1890) and Mental Treatment Act (1930) to the Mental Health Act (1959), Mental Health Act (1983) and the Mental Health Act (2007) amending the 1983 Act. The implications of early twenty-first-century developments – ‘decision-making capacity’–based law (including a ‘Fusion Law’) and the influence of the UN Convention on the Rights of Persons with Disabilities (2006) are discussed. The social, economic, ideological, clinical and legal contexts for changes in the law are examined. These include the paradigmatic shift from the ‘legalism’ of the Lunacy Act to the ‘medicalism’ of the 1959 Mental Health Act and, later, less dramatic shifts, to the ‘new legalism’ of the 1983 Act and then the ‘new medicalism’ of the 2007 Act. The departures from the English model in Scotland in 2003 and later in Northern Ireland are briefly considered.
The end of the twentieth century saw a significant change – quantitatively and qualitatively – in refugees coming to Britain. As the post-Cold War world saw growing numbers fleeing a constellation of state collapse, civil war, environmental disaster and economic stagnation, 1990s Britain saw an absolute increase in the number of asylum applications. It also saw a shift away from the entry of distinct blocks of refugees towards the piecemeal entry of individuals seeking refuge. These two trends came together, combining with Britain’s continued restriction of extra-European immigration, to ensure two things. First, that Britain’s stated commitment to refugee rights via the Refugee Convention became undermined by a determination to reduce the number of successful asylum applications. Through repeated legislation, the burden of proof an individual needed to make a successful application became ever greater. Second, despite assertive grassroots activism, new measures – dispersal, detention and ever-more restricted access to welfare support and legal employment – all served to marginalise asylum seekers from the mainstream population. While these sought to underline the difference between, and the competing claims of, asylum seekers and the ‘hard working poor’, in fact both faced the consequences of a retreating state, shrinking affordable housing and the erosion of universal welfare.
Chapter 6 examines the effect of group empathy on public reactions to undocumented immigration. Results from a national survey experiment demonstrate that group empathy is significantly linked to attitudes about undocumented immigrants, even after controlling for other predispositions including partisanship, ideology, social dominance orientation (SDO), immigration threat, and more. While the significant effects of group empathy apply to all racial/ethnic groups, we find that minorities display higher levels of group empathy than whites do, which in turn lead to more favorable views of undocumented immigrants. Our experimental findings further reveal substantial intergroup differences in reactions to white versus non-white immigrants. African Americans and Latinos were far more likely to side with immigrant detainees in distress of all races/ethnicities and were also more supportive of pro-civil rights policies and actions compared to whites. African Americans were far more likely to take the side of an immigrant if he/she was nonwhite. Latinos, likely because they view the issue as more relevant to their group, were strongly opposed to punitive actions and policies regardless of the race/ethnicity of the immigrant. Finally, we confirm that differences in group-based empathic reactions help explain these racial/ethnic gaps in political attitudes and behavior concerning undocumented immigration.
This chapter examines settlement practice on detention in light of international humanitarian law and human rights law. Section 2 identifies the international legal frameworks that regulate detention, drawing the necessary distinctions between peacetime and armed conflict, and between international and non-international armed conflict, which frame questions on relevant applicable law. Section 3 then examines the specific legal norms relating to prisoners of war and civilian detainees within international armed conflict and their interaction with settlement practice; while Section 4 does the same in relation to legal norms regulating detention in non-international armed conflicts. In the context of peace agreements, the focus is on two interconnected issues which extend into a post bellum phase, as important subject matter for settlement practice: release and repatriation; and transitional justice. By way of conclusion, Section 5 considers whether settlement provisions on detainees reflect a common practice that develops international legal standards.
There seems to have been a shift in the state-centric vision of international relations, following the increasing role of non-state actors (NSAs) on the international scene, particularly in the context of armed conflicts. Ezequiel Heffes, Marcos Kotlik and Manuel Ventura, editors of International Humanitarian Law and Non-State Actors, present through this collection of contributions an overview of legal issues arising from this new reality. The editors draw on their personal experience to explain how NSAs contribute to the development of international humanitarian law (IHL) and to suggest that in order to promote respect for IHL by all parties involved in an armed conflict, this new role should be given due consideration from a legal standpoint. The review aims to confront critically the position taken in the volume, assessing the pros and cons of an increased recognition (and potential legitimisation) of NSAs, with a particular focus on non-state armed groups. It discusses, in particular, the implications of this process for the exercise of sovereign rights and respect for fundamental guarantees, especially in relation to the powers to detain and to adjudicate.
At the start of the war, members of the ATS, WAAF and WRNS were technically civilians and not subject to the full panoply of military law as incorporated in the Army Act, Air Force Act, and the Naval Discipline Act. This chapter describes how the ATS and WAAF were given military status and sections of the Army and Air Force Acts were applied to these forces. The WRNS, however, was excluded from this process of militarisation and was not brought under the Naval Discipline Act.
In this chapter I apply the framework developed in Chapter 3 to the ICC Detention Centre. The chapter opens with an overview of who the ICC detains, and how the Detention Centre is managed. Then I identify the human rights obligations of the ICC and discuss the potential for human rights violations in connection with ICC detention. The remainder of the chapter is devoted to the myriad of accountability mechanisms available to ICC detainees: the administrative appeals procedure, pre-trial and appeals chambers, the Independent Oversight Mechanism, and domestic courts. Despite some promising aspects, these accountability mechanisms are also insufficient.
The Mental Health Act (MHA) 2007 made some significant changes from the Mental Health Act 1983, including the fact that detention is now only allowed if an appropriate medical treatment is available to the patient at the time . There was considerable concern at the time that the 2007 Act would lead to an increase in detentions.
The primary objective is to assess how the change in the English law with the MHA 2007 has affected the number of detentions under the MHA.
A retrospective, observational and noninterventional study used anonymised and routinely collected data regarding 11,509 people who were formally assessed under the Mental Health Act during the period of 2001–2011 in the county of Norfolk. This included 7885 assessments before the 2007 MHA and 3620 done after implementation.
The proportion of people detained following assessment decreased from 53.2% before the 2007 MHA to 42.9% after implementation (P = .000). The total proportion of patients admitted (whether informally or detained) also decreased from 63.3% before the 2007 MHA to 52.8% thereafter (P = .000).
These results show a significant decrease in the rate of detentions under the MHA since the 2007 Act became law.
Disclosure of interest
The authors have not supplied their declaration of competing interest.
The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.
The realities of contemporary armed conflicts with a complex interweaving net of actors are rarely reminiscent of classic combat scenarios envisaged by the drafters of the Geneva Conventions. The scarcity of conventional regulation of non-international armed conflicts (NIACs), coupled with the non-state character of the majority of detaining powers, lead to lack of clarity regarding the legal regime of detention of persons captured by non-state armed groups (NSAGs). In the absence of an explicit authorisation for internment under the international humanitarian law applicable to NIACs, recent developments in case law have induced a scholarly debate on what is the legal basis for administrative detention carried out by these actors. The article analyses key arguments presented by both sides of the debate, concluding that neither side can demonstrate either the existence or the absence of the authorisation in question, while the discussion itself has limited practical value in regulating the conduct of NSAGs. At the same time, the practice of states, although still ambivalent, points to the gradual transformation of mere legality, or the so-called ‘inherent power’ to intern, into a customary provision providing a legal basis for administrative detention by NSAGs.