Introduction

Administrative detention is one of the most dangerous exceptional procedures that affect human rights, as it restricts the freedom of individuals without presenting the charges against them, without enabling them to defend themselves, or bringing them to trial. There is also an increased possibility of arresting individuals unrelated to the events or the crisis that led to the declaration of the state of emergency itself. In addition to the nature of detention being an exceptional procedure carried out by the executive branch away from judicial control, and implemented in places other than public prisons, it creates opportunities for abuse, mistreatment, torture, and inhumane acts against detainees (Muhammad Hassanein Abdel-Al, 1991, p. 22).

In recent years, the issue of administrative detention has gained renewed attention in the context of global counterterrorism efforts, migration crises, and public health emergencies such as the COVID-19 pandemic. Many governments have resorted to administrative detention as a preventive measure to address national security threats, manage large populations of asylum seekers, or control public health risks. However, these measures have sparked widespread concern among human rights organizations regarding potential abuses, particularly when judicial oversight is limited or absent.

In the context of counterterrorism, for example, administrative detention has been used in various countries to detain individuals suspected of links to terrorist organizations, often without formal charges or trials. This has raised serious questions about the balance between national security and the protection of individual rights. Furthermore, administrative detention of migrants and asylum seekers has been criticized for violating international human rights standards, as many detainees are held in overcrowded, inadequate conditions, with limited access to legal recourse or fair treatment.

The COVID-19 pandemic has also highlighted the risks of administrative detention being applied in the name of public health. Some governments have used emergency powers to detain individuals suspected of violating quarantine regulations or public health measures. These actions, while aimed at safeguarding public health, have at times resulted in arbitrary detentions, exacerbating concerns over the erosion of civil liberties in the face of state power.

Control over the legality of administrative detention procedures during these exceptional circumstances faces significant practical difficulties. The International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights have all stipulated two types of control over arrest and detention procedures, namely :

1. The first type : Immediate or initial supervision immediately after arrest or detention, which focuses on examining the legitimacy of the arrest or detention procedures.

2. The second type : Subsequent supervision, which focuses on examining the reasons for imprisonment or detention and the extent of the legitimacy and appropriateness of continuing it until the person in custody or under arrest is brought before a court.

This guarantee—control of the legality of administrative detention procedures—is known in Anglo-Saxon legal thought as Habeas Corpus, and in Mexico and some other common law countries as Amparo (Mohamed Ahmed Ibrahim Abdel-Rasoul, 2008, p. 200).

International proposals for the Paris Rules confirmed this guarantee (Nabil Mustafa Ibrahim, 2008, pp. 17–20), by stipulating in the third paragraph, items (B, C), that :

“Presenting the detainee to the judiciary to monitor the legality of their detention through the Habeas Corpus or Amparo system is a prescribed right for every detainee, and a judicial guarantee that may not be suspended during emergency situations. The judiciary has the right to implement this control as follows :
B : Monitor the lawfulness and appropriateness of detention procedures in light of the provisions of the detention law.
C : Monitor the extent of the detention authority’s commitment to respecting and ensuring the guarantees referred to above.”

Based on the foregoing, the problem of this study revolves around the following question: What is the content and basis of judicial oversight of the legality of detention in international law?

In answering this question, it is necessary to divide this study into three systematically structured sections. The first section will address the guarantee of informing the detainee immediately of the reasons for their arrest and the charge against them in international law. The second section will focus on the guarantee of immediate judicial control over the legality of detention in international law. Finally, the study will conclude by examining the guarantee of subsequent judicial oversight of the legality of detention in international law, discussed in the third section.

1. Immediate Notification of Arrest Reasons and Charges in International Law

One of the important guarantees that a detained person enjoys is being informed promptly and in detail of the nature and causes of the charges against him (Christoph Johannes Maria Safferling, 2001, p. 116).

Achieving this guarantee serves a dual purpose: on the one hand, it aims to avoid the risk of enforced disappearances, and on the other, it allows the detained person to direct a request to the competent judicial authority for a prompt decision regarding the legality of his detention. This requires informing the detainee of the nature of the charges in a language he understands and in a timely manner so that he can prepare his defense (Mahmoud Cherif Bassiouni, 2012, p. 611).

This guarantee is stipulated in Article 14(3)(a) of the International Covenant on Civil and Political Rights (adopted by UN General Assembly Resolution 2200 A (XXI) of December 16, 1966, effective March 1976), as follows :

“3. Every person accused of a crime shall have the following minimum guarantees, in full equality :
(a) To be informed promptly and in detail, in a language which he understands, of the nature and cause of the charge against him.”

It is also stated in Article 9(2) of the same covenant :

“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

The difference between Article 9(2) and Article 14(3)(a) is that the latter comes within the framework of the right to a fair trial and serves as a guarantee for individuals accused of criminal offenses. It applies to all criminal charges, including those addressed to individuals who are not detained (Abdal-Rahim Muhammad al-Kashef, 2003, p. 661).

Article 9 (2) of the International Covenant ensures that the arrested person is informed, in general, of the reasons for their arrest or any charges against them (Khair al-Din Abdal-Latif Muhammad, 1991, p. 354).

Principle 10 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (adopted by UN General Assembly Resolution 43/173 of December 9, 1988) emphasizes this guarantee by stating :

“Anyone who is arrested shall be informed at the time of arrest of the reason for his arrest and shall be promptly informed of any charges against him.”

Similarly, Principle 13 of the same set of principles stipulates :

“The authority responsible for the arrest, detention, or imprisonment shall provide the arrested person, at the moment of arrest, and upon the commencement of detention or imprisonment, or immediately thereafter, with information about his rights, an explanation of those rights, and how to exercise them.”

Regionally, this guarantee is also present in Article 5(2) of the European Convention on Human Rights (signed in Rome on November 4, 1950), which states :

“Anyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charges against him.”

Additionally, Article 7(4) of the American Convention on Human Rights (adopted in San José on November 22, 1969) stipulates :

“Anyone arrested shall be informed of the reasons for his arrest, and shall be promptly notified of the charge or charges against him.”

Item (A) of Paragraph 2 of the Paris Rules on detention stipulates :

“In cases where the law allows administrative detention, the following guarantees must be ensured for all detainees as a minimum standard, which cannot be reduced :
(a) Each detainee must be informed of the reasons for their arrest within a period not exceeding seven days from the date of arrest. In some cases, the authority may withhold this information if the public interest so requires, but the oversight body must assess the validity of this withholding, and whether it serves justice, through non-public procedures.”

However, we disagree with the provision in item (A) of Paragraph 2, which permits informing the detainee of the reasons for arrest within seven days. This period is too long and contradicts Article 9 of the International Covenant on Civil and Political Rights, Article 5 of the European Convention, and Article 7 of the American Convention on Human Rights, which all stipulate that the arrested person must be informed immediately of the charges against them. Furthermore, we disagree with the provision that allows the administrative authority to withhold information regarding the reasons for arrest. How can the oversight body—the detainee’s protector—verify the administration’s seriousness in withholding this information through public procedures ? These guarantees appear incomplete.

In a complaint filed against Jamaica, the Human Rights Committee noted that the complainant was not informed of the charges against him until seven days after his detention. The committee concluded that this constituted a violation of Article 9(2) of the International Covenant on Civil and Political Rights (Abdal-Rahim Muhammad al-Kashef, 2003, p. 661).

Regarding the form of notification, no specific form is required to inform the detainee of the charges. It can be communicated orally or in writing. However, in the case of criminal charges, the information must also include references to legal provisions and the alleged facts upon which the indictment is based (Abdal-Rahim Muhammad al-Kashef, 2003, p. 662).

Likewise, the European Convention on Human Rights does not specify that the information must be provided in a specific form, such as in writing or in the arrest warrant, as reflected in the decisions of the European Commission of Human Rights (Mohamed Ahmed Ibrahim Abdel-Rasoul, 2008, p. 201).

2. Judicial Oversight and Safeguards in International Detention Law

2.1. Immediate Judicial Review of Detention Legality in International Law

If, under exceptional circumstances, it is permissible to detain some persons in administrative detention in violation of the provisions of Article (9/2) of the International Covenant on Civil and Political Rights, it is necessary to inform everyone who is arrested of the reasons for their arrest when it occurs and to inform them immediately of the reasons for that procedure. An illustrative case is the Guantánamo Bay detentions, where individuals were held for extended periods without being informed of the charges or reasons for their arrest. This highlights the importance of the guarantee that all detainees must be immediately informed of the reasons for their arrest as part of due process in international law.

It is also essential to ensure that the detainee’s right to be brought before a court to review the legality of their detention is upheld. According to the third and fourth paragraphs of Article (09) of the International Covenant on Civil and Political Rights, if a state disassociates itself from these restrictions during exceptional circumstances, its conduct is invalid, as it undermines fundamental judicial rights. These guarantees have become general principles of international law, endorsed by civilized nations, and are part of customary international law (Saeed Fahim Khalil, 1998 : p 280).

This guarantee requires that the arrested or detained person be brought promptly before a judicial authority or a judge, or legally authorized employees exercising judicial functions, as soon as possible after the arrest or detention. This ensures integrity and independence in the judicial process. The third paragraph of Article (09) of the International Covenant on Civil and Political Rights states :

“An arrested person on a criminal charge shall be brought promptly to a judge or an employee legally authorized to perform judicial functions....”

The term “promptly” remains vague and unspecified. However, it is permissible to rely on the general comment made by the Human Rights Committee on Article Nine, which held that detainees should not be delayed more than a few days before being brought before a judge. The Committee considered that presenting a detainee to judicial authorities within five days was excessive and did not comply with Article (9/3) of the International Covenant. The Committee also emphasized that holding a detainee for over forty-eight hours without bringing them before judicial authorities, without acceptable justification, constitutes a violation of the Covenant (United Nations, 1994 : p 15).

A relevant case is Brogan and Others v. the United Kingdom (1988), where the European Court of Human Rights ruled that holding suspects for more than four days without judicial oversight, even during terrorism-related crises in Northern Ireland, was a violation of Article 5 of the European Convention on Human Rights.

The text of Article Nine of the International Covenant corresponds to Article 5, paragraph three, of the European Convention on Human Rights, which states :

“Anyone arrested or detained in accordance with paragraph (1/C) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power....”

Similarly, Article (7/5) of the American Convention on Human Rights guarantees that

“The arrested person shall be brought without delay before a judge or any employee authorized by law to exercise judicial authority....”

Moreover, Paragraph (C), Article (02) of the international proposals for detention rules states :

“2- In cases where the law allows administrative detention, the following minimum guarantees must be ensured for all arrested persons : C- The right of every detainee to be brought before the judiciary, or a competent authority, to review the legality of the detention within thirty days.”

While a thirty-day period is considered excessive, as it does not provide the immediate judicial control stipulated by Article (9/3) of the International Covenant, cases like administrative detentions in Israel demonstrate how some states use this measure to prolong detention without prompt judicial review, raising concerns about compliance with international norms.

2.2. Challenges to judicial independence and impartiality

A critical issue arises regarding the confusion between judges and other authorities, such as state security personnel, who may have the power to arrest and detain. According to some legal scholars, the authority to arrest should remain independent, and it is assumed that the judiciary must remain completely impartial. Another challenge concerns Article (09/3), which only applies to persons arrested on criminal charges. There is debate on whether the absence of a set deadline for appearing before a judge weakens the article’s content (Muhammad Mustafa Yunus, 1992 : p 305).

In non-criminal cases, such as administrative detention, Article (9/3) of the International Covenant does not offer sufficient protection. While the Human Rights Committee acknowledges that such detention may be necessary for reasons of security and public order, it must be legally regulated and not arbitrary (Saeed Fahim Khalil, 1998 : p 288). This can be exemplified by the administrative detention practices during the military regimes in Argentina and Chile, where individuals were detained without judicial oversight, leading to widespread human rights abuses.

The European Court of Human Rights, in cases like Lawless v. Ireland, has grappled with administrative detention under laws such as the 1940 Amended State Security Crime Law, which allowed detention of suspects of terrorism or sabotage. While the Court found safeguards were in place, the European Human Rights Commission criticized the law for not allowing detainees to appeal their detention before an independent judicial authority (Ishaq Salah Abu Taha, 2008 : p 110).

2.3. The role of the judiciary in ensuring personal safety

The judiciary’s role extends beyond protecting individual liberties ; it also ensures personal safety, especially under exceptional circumstances. The American Court of Human Rights emphasized this through the Habeas Corpus and Amparo guarantees, which ensure that detained persons are brought before a judge to review the legality of their detention. The Court pointed out that suspending these guarantees during emergencies in Latin America contributed to widespread torture and enforced disappearances (Saeed Fahim Khalil, 1998 : p 291).

The American Court concluded that laws in some states that allow the suspension of judicial control over administrative detention during emergencies are in violation of the American Convention on Human Rights (Khairy Ahmad Al-Kabbash, 2001 : p 572). This shows the vital role of judicial oversight in preventing the abuse of administrative detention.

3. Guarantee of Subsequent Judicial Oversight of the Legality of Detention in International Law

The third paragraph of Article (09) of the International Covenant on Civil and Political Rights states :

“... Anyone who is arrested or detained has the right to be brought to trial within a reasonable time or to be released, and the detention of persons pending trial should not be the general rule...”

Paragraph (3/C) of Article (14) of the aforementioned Covenant stipulates that : “The accused shall have the right to be tried without undue delay.”

Principle (38) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states :

“A person detained on a criminal charge shall have the right to be tried within a reasonable time or to be released pending trial.”

This aligns with the text of Article (05), the third paragraph of the European Convention on Human Rights, which states :

“He shall be brought to trial within a reasonable time or released pending trial, and release may be conditioned on guarantees ensuring appearance at the trial.”

Article (7/5) of the American Convention on Human Rights states:

“...He must be tried within a reasonable time or released without prejudice to the continuation of the case. His release may be subject to guarantees ensuring his appearance at trial.”

Article (7/1/D) of the African Charter on Human and Peoples’ Rights (approved at the 18th Ordinary Session of the African Heads of State and Government in Nairobi, Kenya, June 1981) provides :

“1- The right to a fair trial is guaranteed to all, and this right includes :
D- The right to be tried within a reasonable time by an impartial court.”

Similarly, Article (14), paragraph six of the Arab Charter on Human Rights (adopted at the 16th Arab Summit hosted by Tunisia on May 23, 2004), states:

“Anyone deprived of their liberty by arrest or detention has the right to bring their case before a competent court to rule without delay on the legality of the detention, and to order release if the detention is illegal.”

The International Human Rights Committee has affirmed that detention without trial is an exceptional measure, and its duration should be as brief as possible. The European Court of Human Rights has similarly emphasized that detention must be limited in both duration and scope (Abdal-Rahim Muhammad al-Kashef, 2003 : p. 665).

Paragraph 02 (D, F) of the international proposals for detention rules also states:

“2- Where the law permits administrative detention, the following guarantees must be provided as a minimum :
D - The period of administrative detention must not exceed thirty days, otherwise the detention order becomes invalid and the detainee must be released immediately...
F - Under no circumstances should detention exceed one year. In exceptional cases requiring prolonged detention, the detaining authority must obtain a new detention order in accordance with procedures established by law.”

We disagree with clause (F) of the aforementioned paragraph 02, as it allows detention for up to a full year, which imposes significant physical and moral harm on the detainee. Furthermore, permitting the administration to issue a new detention order arbitrarily violates the detainee’s rights.

As for the permissibility of continued detention based on the original grounds for arrest, or if new grounds emerge, the European Convention on Human Rights (Article 5/1/C) and the International Covenant on Civil and Political Rights (Article 9/3) permit ongoing detention if justified by the initial reasons for arrest. However, the European Court of Human Rights ruled that such justification must be continuously reassessed and that continued detention must be reasonable. The Court held that prolonged suspicion is insufficient grounds for ongoing detention (Khair al-Din Abdal-Latif Muhammad, 1991 : p. 357).

Article (1/5/C) of the European Convention on Human Rights provides :

“1- Everyone has the right to liberty and security of person. No one shall be deprived of their liberty except in the following cases, and according to procedures established by law :
C- Arrest or detention in accordance with law, with the aim of bringing the person before the competent legal authority on reasonable suspicion of having committed an offense, or when it is deemed necessary to prevent the person from committing an offense or fleeing after committing one.”

The International Covenant on Civil and Political Rights (Article 9/3) further states :

“... Detention pending trial should not be the general rule, but release may be subject to guarantees to ensure attendance at trial and to execute the sentence if necessary.”

Paragraph (02/D) of the international proposals for detention rules also states :

“2- Where the law permits administrative detention, the following guarantees must be provided :
D - The period of administrative detention must not exceed thirty days unless extended by judicial authority based on valid legal grounds.”

The previous agreements did not clearly define what constitutes a “speedy trial.” The United Nations Human Rights Committee clarified that the requirement for a trial without undue delay applies not only to the trial’s commencement but also to its conclusion. All stages of the trial must proceed without undue delay.

The European Court of Human Rights has ruled that the reasonable time begins at the moment of arrest or detention and ends when the judgment is rendered by the trial court. This period does not extend to the date on which the judgment becomes final (Ali Fadel Al-Buainain, 2006: p. 708).

The European Commission initially followed this approach but later ruled that detention during appellate proceedings before a Court of Cassation should be considered as pre-trial detention rather than punitive imprisonment (European Convention on Human Rights, Article V, para. A).

Jurisprudence holds that the assessment of reasonable time should consider the gravity of the crime. Applying this standard to minor offenses risks undermining the right to a fair trial. Pre-trial detention should remain an exception (Mohamed Ahmed Ibrahim Abdel-Rasoul, 2008: p. 208). The International Human Rights Committee took this view in a case against Bolivia, where the Committee rejected arguments justifying prolonged detention based on evidence gathering (United Nations, Chapter Five, 2002: p. 174).

The European Commission identified seven factors to consider when determining the reasonableness of detention:

1. The actual length of detention.

2. The relationship between detention and punishment.

3. The physical, moral, and other effects on the detainee.

4. The behavior of the detainee during the investigation.

5. The difficulties faced during the investigation.

6. The conduct of the investigation.

7. The behavior of the judicial authorities.

However, the European Court held that domestic litigation must first exhaust internal legal remedies before invoking international jurisdiction, and that national authorities must provide reasoned judgments regarding the appropriate duration of detention (Khair al-Din Abdal-Latif Muhammad, 1991: p. 360).

Regarding the right to challenge the legality of detention, the fourth paragraph of Article (09) of the International Covenant on Civil and Political Rights provides that:

“Anyone deprived of their liberty by arrest or detention has the right to take legal proceedings before a court to decide without delay on the lawfulness of their detention, and to order their release if the detention is unlawful.”

Article (5/4) of the European Convention on Human Rights also provides:

“Anyone deprived of their liberty by arrest or detention has the right to take legal measures to have the legality of their arrest or detention promptly reviewed by a court, and to be released if their detention is unlawful.”

Article (7/6) of the American Convention on Human Rights further states:

“Anyone deprived of their liberty has the right to apply to a competent court for a prompt ruling on the legality of their arrest or detention, and to be released if their detention is unlawful.”

This guarantee protects individuals from unlawful and arbitrary detention, as well as from torture and other forms of cruel, inhuman, or degrading treatment.

Legal scholars argue that the scope of the right to challenge the legality of detention should be clarified. While administrative detention is not explicitly prohibited, the right to appeal applies to anyone deprived of their liberty. Moreover, the provisions do not preclude others from filing on behalf of the detained person (Muhammad Mustafa Yunus, 1992 : p. 308).

The International Human Rights Committee ruled in a case against Jamaica that the complainant’s right under paragraph (4) of Article (09) was violated when they were detained for two and a half months before being brought before a court (United Nations, Chapter Five, 2002: p. 180).

The European Commission for Human Rights has recognized that any person detained indefinitely has the right to challenge the legality of their detention under Article (5/4) of the European Convention, regardless of whether the detention was ordered by a judicial or administrative authority (Mohamed Ahmed Ibrahim Abdel-Rasoul, 2008: p. 210).

Article (09) of the International Covenant on Civil and Political Rights establishes the legal basis for the right to challenge detention, regardless of whether the detention is criminal or political in nature (Abdal-Rahim Muhammad al-Kashef, 2003: p. 672).

Article (55/1/D) of the Statute of the International Criminal Court (adopted in Rome, 17 July 1998) stipulates:

“No person shall be subjected to arbitrary arrest or detention, and no one shall be deprived of their liberty except on grounds and in accordance with procedures established in the statute.”

However, some argue that the statute lacks precision in defining the conditions under which this right applies (Salvatore Zappalà, 2005: p. 74).

Among the provisions created by the statute of the International Criminal Court is the right of any person, whether a suspect or an accused, who has been subjected to unlawful arrest or detention to obtain compensation in accordance with Article 85(1). This right has not been established in any of the previous international criminal court systems and was not provided for by the Rules of Procedure and Evidence for the Former Yugoslavia and Rwanda Tribunals.

In 1991, the Economic and Social Council laid down guidelines for emergency situations, as follows:

1. No person deprived of liberty shall be denied the following:

   1. The right to be informed immediately and in writing of the reasons for their detention, in a language they understand.

   2. The right to notify their family of their detention without delay and to receive visits.

   3. The right to have immediate and regular access to a lawyer of their choice.

   4. The right to challenge the legality of their detention before a court of law, either by appearing in person or through any fast and effective means.

2. If the emergency requirements make the detention of individuals not accused of a felony absolutely necessary, they are entitled to the following:

1. 1. 1. The deprivation of liberty can only be authorized by a body established for this purpose, which must be impartial and independent from any other public authority.

      2. No one should be held without charge for longer than absolutely necessary.

      3. Persons detained without charge under procedures authorized by a declaration of emergency must be held in a separate facility from prisoners accused or convicted of a felony, in conditions that fully take into account their circumstances, and they should not be forced to work or participate in rehabilitation programs.

      4. All possible measures must be taken to protect the detainee’s family from the harmful consequences of their detention (Mahmoud Sharif Bassiouni, 2003: p. 110).

Conclusion

Based on the foregoing, we conclude that Article 9 of the International Covenant on Civil and Political Rights, which corresponds to Article 5 of the European Convention on Human Rights and Article 7 of the American Convention on Human Rights, is considered a fundamental pillar in providing international protection against unlawful arrest. The guarantees established in these texts must be respected during states of emergency. Consequently, the neglect of these guarantees by laws regulating exceptional situations is considered a violation of international protection rules, and the legitimacy of such laws can be challenged.

Thus, judicial oversight of the legality of detention during a state of emergency remains a subject for discussion and judicial interpretation. Achieving a balance between protecting the rights of the detained individual and maintaining the security and stability of society is a complex task, due to the ambiguity of the situation in such exceptional and extraordinary circumstances. As has been stated:

“Achieving control over the legality of administrative detention during a state of emergency undoubtedly involves numerous practical difficulties and therefore requires careful consideration” (Abdal-Rahim Muhammad al-Kashef, 2003 : p. 569).