Transitional Justice Working Group (TJWG) specializes in human rights documentation, and have successfully utilized UN human rights bodies for our advocacy work. In this article, I will walk you through how you can also do this.
I’ll be talking about the UN Working Group on Arbitrary Detention, or the WGAD. This article is part of an info series on how human rights documenters and activists can readily utilize the UN’s human rights mechanisms.
In this article, we’ll be discussing these questions:
– What is the WGAD and what can it do?
– How does the WGAD handle individual complaints about arbitrary detention?
– What can you get out of making a case submission to the WGAD?
– What are the things to keep in mind when making a case submission to the WGAD?
– Do you need to be a lawyer to make a submission?
The WGAD is a UN human rights body, tasked to investigate cases of arbitrary deprivation of liberty. The WGAD considers the following 5 categories of deprivation of liberty to be arbitrary:
1. When detention lacks any legal basis
2. When detention is a result of one’s exercise of human rights, such as the freedom of religion, expression or assembly
3. When the right to a fair trial has been gravely violated
4. When asylum seekers, refugees, or migrants are subjected to prolonged administrative detention
5. When detention is a result of illegal discrimination based on ethnicity, gender, political opinion, sexual orientation and the like.
The WGAD functions like a quasi-court when handling individual complaints. It considers written submissions from victims and relevant governments and then issues “Opinions” that read like court decisions. This sets it apart from other UN human rights experts. The WGAD’s factual and legal findings enjoy considerable authority worldwide. Submissions to the WGAD must be in English, French or Spanish, and must be accompanied by the consent of the victims or their family members.
Once a petition has been submitted, the working group will decide if the case has merits. If a case is taken up for deliberation, the working group will send a letter with a summary of the case to the respective government and give it 60 to 90 days to respond in writing. If the government sends a response in time, the petitioner is given one more chance to respond in writing. Then, the five members of the Working Group, who meet 3 times a year, will deliberate and adopt an “Opinion” for the case based on the submissions from the petitioner and the government. After some final editing, the opinion is published on the WGAD’s website. This means the whole process will take at least half a year and possibly even a year or two.
So what is the point of making a case submission to the WGAD for human rights documenters and activists? If your case submission is successful and the Working Group issues an Opinion, you can use it to:
– Present the factual and legal findings for the record
– Name and shame the government at the UN
– Raise the international awareness and pressure
– Generate international and domestic media attention
– Induce better treatment for the detainee.
The WGAD also has a follow up procedure to review the actions taken by the government on the case. All this could help in securing the release of a detainee. Furthermore, even a mere submission of a complaint to the WGAD can have some potential benefits:
– The case submission will remain a part of the UN record
– The submission, newsworthy by itself, can attract media attention
– The government can be put on notice that NGOs, the UN and other international actors are watching
– The government’s response could reveal useful information
– Bringing a case before the WGAD can provide a vindication to the victims and their loved ones. But it is important not to raise unrealistic expectations.
Now, here are some things to keep in mind when making a submission to the WGAD. The WGAD adopts on average around 90 opinions every year. This is not too bad, but, given the vast number of case submissions from around the world, there is no guarantee that the WGAD will take up your case. The outcome will depend on the gravity, coherence and credibility of your case and the detailed but succinct organization of your petition. Moreover, even if the WGAD issues an Opinion finding the detention arbitrary, there is no guarantee that the government will comply and the detainee will be released. The outcome here will depend on the legal and political considerations by the government. To answer the question at the beginning of this article, no, you don’t need to be a lawyer to make use of the WGAD. The WGAD website provides a model questionnaire to be filled out and submitted by email. So you too can tap into WGAD’s case submission process.
· Working Group on Arbitrary Detention: https://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx
· Model questionnaire to facilitate placing cases before the Working Group: https://www.ohchr.org/EN/Issues/Detention/Pages/Contact.aspx
· Revised Fact Sheet No. 26: The Working Group on Arbitrary Detention (Advance unedited version, 8 February 2019): https://www.ohchr.org/Documents/Issues/Detention/FactSheet26.pdf
· OHCHR Fact Sheets: https://www.ohchr.org/en/publicationsresources/pages/factsheets.aspx
· Opinions adopted by the Working Group on Arbitrary Detention: https://www.ohchr.org/EN/Issues/Detention/Pages/OpinionsadoptedbytheWGAD.aspx
· TJWG’s petition to the UN WGAD on behalf of South Korean POW Han Man-Taek: https://en.tjwg.org/2020/08/06/tjwgs-petition-to-the-un-wgad-on-behalf-of-south-korean-pow-han-man-taek/