Jared Genser, The UN Working Group on Arbitrary Detention: Commentary and Guide to Practice (Cambridge University Press, 2020)
The United Nations Working Group on Arbitrary Detention is the first comprehensive review of the contributions of this important institution to understanding arbitrary detention today. The Working Group is a body of five independent human rights experts that considers individual complaints of arbitrary detention, adopting legal opinions as to whether a detention is compatible with states’ obligations under international law. Since its establishment in 1991, it has adopted more than 1,200 case opinions and conducted more than fifty country missions. But much more than a jurisprudential review, these cases are presented in the book in the style of a treatise, where the widest array of issues on arbitrary detention are placed in the context of the requirements of multilateral treaties and other relevant international standards. Written for both practitioners and serious scholars alike, this book includes five case studies and a foreword by Archbishop Desmond M. Tutu.
Note from the Author
I am absolutely delighted to provide, with the support of Cambridge University Press, an electronic copy of The UN Working Group on Arbitrary Detention: Commentary and Guide to Practice, which is available for for free – just click on the book above.
Please note, if you download the book, you are accepting the terms of the license, which is a Creative Commons Attribution – NonCommercial – NoDerivatives (“CC-BY-NC-ND) 4.0 license.
For those who will find it easier to use a physical copy, the book is now available for purchase in softcover here.
I would not have been able to make my book available for free to the public at large without the generous support of two people: Charles Bronfman, an extraordinary philanthropist who has been a great inspiration to me personally; and a former client, who wishes to remain anonymous, but whose release from prison was only possible after winning his case before the UN Working Group on Arbitrary Detention.
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Reviews and Endorsements for The UN Working Group on Arbitrary Detention: Commentary and Guide to Practice
This meticulously researched volume is the first book to review the extensive jurisprudence and reporting of the UN Working Group on Arbitrary Detention since its creation in 1991. Authored by Jared Genser, one of the leading human rights lawyers in the world and someone who I had the pleasure of working with on many of his most challenging cases during my time as High Commissioner, the book is written to be highly accessible even for those without legal background. Importantly, Genser weaves into the narrative his experiences having successfully taken dozens of cases to the Working Group over his career, explaining how he has combined its opinions with focused political and public relations advocacy to secure the release of his clients from prison. This rare combination of serious scholarship with real world application is as powerful as it is inspiring, making this book a must read for anyone wanting to secure the release of political prisoners today.
Prince Zeid Ra’ad Al Hussein
UN High Commissioner for Human Rights (2014-2018)
Jared Genser is the leading attorney in the world on arbitrary detention in international law and established this reputation during the years I was a Member and Chair-Rapporteur of the UN Working Group on Arbitrary Detention. His book makes an important contribution to understanding international law on arbitrary detention and offers a wealth of materials and clear and convincing analysis of the law and the major challenges that arbitrary detention poses to the international community today. Among the dozens of cases he has brought to the Working Group as an attorney, several resulted in landmark decisions. His cases have more broadly also assisted in important clarifications and development of international law. The Working Group is the UN’s specialist body on arbitrary detention and receives individual complaints, undertakes country inspections and promulgates general restatements and recommendations, in some instances at the behest of the UN Human Rights Council, to which it reports annually and which admonishes states the Working Group has held in violation of international law. Its opinions on the application of international law in individual cases and its more general clarifications are important as states are bound by international law.
Mads Andenas Q.C.
Professor, University of Oslo and Institute of Advanced Legal Studies, School of Advanced Study, University of London
Member and Chair-Rapporteur, UN Working Group on Arbitrary Detention (2009-2015)
Director, British Institute of International and Comparative Law, London (1999-2006)
The UN Working Group on Arbitrary Detention is a groundbreaking work of legal scholarship. The book is the first to describe and analyze the activities of this little-known but very important tribunal at the United Nations, which has the power to issue legal decisions that a person or group is being held in violation of international law. It is also a long overdue how to guide for lawyers, human rights defenders, and civil society activists about how to secure these important legal judgments. Although there is no way to force states to comply with Working Group opinions, having the United Nations urge the immediate release of a political prisoner can help enormously in mobilizing the political and public pressure necessary to secure their freedom. The book is more than an academic treatise because its author, Jared Genser, whose important work I have followed over the years, rests his analysis in his rich and proven experience as one of the most effective international human rights lawyers in the world at freeing political prisoners.
Nobel Peace Prize Laureate (1997)
I have a rather unusual perspective on arbitrary detention because having been subjected to it by various authoritarian rulers of The Maldives has been a central and defining set of experiences in my life. Indeed, I’ve been arrested more than 20 times, repeatedly tortured, and have served more than three years in prison over various periods of arbitrary detention. Back in 1995, I was a dissident journalist imprisoned for criticizing my Government. The UN Working Group on Arbitrary Detention played an important role in securing my release by concluding in Opinion No. 36/1995 that I had been detained illegally and demanding my immediate release. Later, I became the first democratically-elected President of The Maldives. But I was then forced out in a coup by remnants of the prior regime. To my dismay, when public support for the Maldivian Democratic Party which I led then posed a threat to Abdulla Yameen, the most recent dictator to rule my country, I was arbitrarily arrested, tried, and convicted on manufactured terrorism charges and sentenced to 13 years in prison. It was at that point in 2015, I hired this book’s author, Jared Genser, to serve as my pro bono counsel, alongside Amal Clooney and Ben Emmerson. The story of their extraordinary efforts are described in a compelling case study chapter in this book. The team submitted my case to the Working Group in April 2015 and in October 2015, it issued Opinion No. 33/2015, a scathing 20-page judgment that rejected the Government’s arguments on every point and demanded my immediate release. Hundreds marched in the streets of Malé supporting the Working Group’s decision. With my team’s relentless advocacy, the Government could not withstand the political pressure and it was forced to release me. I was greeted by Amal and Jared when I arrived in London on January 21, 2016. But that was not the end of the story. I worked intensely from abroad with countless courageous Maldivians and in a stunning upset in September 2018, our country succeeded in defeating Yameen in a democratic election. My close friend and co-founder of our political party Ibrahim Mohamed Solih was elected President. I returned to The Maldives in November 2018 and was especially pleased that Jared was with me in our Supreme Court on the day it reversed my conviction and acquitted me on all charges, citing to the opinion of the Working Group as a key reason for its decision. In April 2019, I was elected to our Parliament, the People’s Majlis, and in May 2019, I was elected and sworn in to be its new Speaker. We are now working hard in The Maldives to strengthen our democratic institutions and to restore and fulfill our solemn commitment to our people to promote and protect their fundamental human rights. Although the Working Group remains a little-known body at the United Nations, I cannot emphasize enough how critical a role it played in securing my release from two different periods of arbitrary detention, enabling me and many others to restore democracy to our country and people. The greatest fear of any political prisoner is that they will be forgotten. This exceptional and meticulous work of scholarship will be an invaluable tool for advocates to make sure that doesn’t happen.
The Honorable Mohamed Nasheed
Speaker of the People’s Majlis, The Maldives (2019-Present)
President of The Maldives (2008-2012)
We have seen substantial progress reducing the phenomenon of arbitrary detention in the Americas but there still remains too many countries in our region with serious challenges to the rule of law and where especially repressive governments stubbornly persist in imprisoning their opponents against the tide of history. While the Inter-American Commission and Court of Human Rights have taken up many of these cases, the UN Working Group on Arbitrary Detention has also highlighted some of the worst. This impressive book, authored by Jared Genser, who over the years has represented prominent political prisoners in countries like Bolivia, Colombia, Cuba, Nicaragua, and Venezuela, shines an important spotlight on a major gap between the commitments of states in the American Convention on Human Rights to end the practice of arbitrary arrest and imprisonment and their implementation in practice.
The Honorable Luis Almagro
Secretary General, Organization of American States
Kudos to Jared Genser for bringing to life the inner workings and substantial accomplishments of one of the key UN human rights bodies – the Working Group on Arbitrary Detention. The legal deliberations and decisions of this group of independent experts from the five regions of the world focus on ending “arbitrary detention” – the illegal and unjust imprisonment or custody of an individual by a state. Genser not only presents an analysis of the legal significance of its jurisprudence over the past 27 years, but then reveals to his reader what it really means to submit a case for a decision, to fight for the unjustly imprisoned, and to succeed in securing their freedom. Using five prominent case studies where he was lead counsel, Genser details the way governments can and have targeted prominent political opponents and the way international human rights law and the Working Group itself have enabled reaching the conclusion that their detentions are wrongful, unreasonable, capricious and unacceptable. The cases of Mohamed Nasheed (v. The Maldives), Aung San Suu Kyi (v. Myanmar), Yang Jianli (v. China), Mukhtar Ablyazov (v. France) and the Sledgehammer cases (v. Turkey) reveal how international human rights advocacy and fine lawyering can make a huge difference in the modern world. It’s easy to criticize “the UN” and its member states for its inconsistent defense of human right in its politicized forums; but the real achievements of the UN human rights system lie in the norms it has adopted and the independent mechanisms like the Working Group that fight independently to uphold these standards in real world situations, for real people. Genser opens our eyes to what’s needed to make a good case – and how to fight for individual freedom, successfully.
Felice D. Gaer
Director, Jacob Blaustein Institute for Human Rights
Vice-Chairperson, UN Committee Against Torture
Having spent over a decade in solitary confinement as a political prisoner, I have come to appreciate with great intensity the subtle aspects of freedom – to read, to walk about and sleep – are actions that can easily be taken for granted. The persistent denial of access to family, to information and to human interaction induces a profound loneliness in the prisoner, coupled with the dreadful feeling as though your life’s contributions are slowly being excised from public consciousness. This is why, when a sympathetic prison guard tapped on my cell gate one morning and whispered to me with hushed excitement that “the UN just called for your release!”, I felt a renewed sense of hope that the wheels of justice were still churning. I learned a short time later that my international lawyer Jared Genser, the book’s author, had just made public Opinion No. 22/2015. In a detailed decision, the Working Group unanimously agreed I was being held in violation of international law and it urged my immediate release. Even though the Working Group cannot enforce its decisions, for the United Nations to have spoken out in this unequivocal way had struck an irrecoverable blow to the former prime minister’s efforts to try to justify my detention. Although it took several more years of hard work and ultimately the historic May 2018 election to secure my release and pardon, the Working Group’s favorable opinion was an important milestone on the journey to freedom. Jared Genser is a pioneer in the area of human rights law and a courageous and indefatigable representative of political prisoners around the world. This book represents his singular expertise in this area and should be required reading for all who seek a deeper understanding of the Working Group’s activities and inner mechanisms.
Dato’ Seri Anwar Ibrahim
President of the People’s Justice Party and Member of Parliament (2018-Present)
Deputy Prime Minister of Malaysia (1993-1998)
There are those for whom words have meaning and those who issue hollow promises. This is as true of people as it is of states. If it were necessary broadly to reminisce on the cause of human rights throughout history I would easily distinguish four successive phases. First came the time of individuals, who from time to time have paid with their lives for the freedom of thought. Whether paid at the stake, when abandoned in a cell or crucified, these philosophers, spiritual guides, artists, scientists and writers led the cause for the respect of fundamental rights. Then came the time of international institutions, especially since the creation of the United Nations. After the atrocities of the Second World War, nations – carried by the hope that the world would no longer experience the oppression and atrocities witnessed during the 20th century – embarked on this path with the Universal Declaration of Human Rights, adopted in Paris on December 10, 1948. We know what came of this. For simply adopting a text or ratifying a treaty is not enough to extinguish the temptation of oppression – also universal. It is precisely to ensure that these words were not empty that France, with Robert Badinter and Louis Joinet, has played a leading role in the establishment of an original mechanism to ensure concretely the proper application of the intentions proclaimed by these nations. Because it is the legitimacy and the credibility of the multilateral system, today attacked from all sides, that is at stake. But these mechanisms make sense only if they relate to human situations; it is only if one detaches oneself from abstraction, from the diplomatic bubble, that reality is attained. It is in this spirit that Jared Genser has produced this exceptional work, so rigorous in both legal and methodological terms. This book will surely become an indispensable tool for all those who believe that human rights are nothing if they are not concretely applied to individual situations. After the time of individuals and institutions, came that of NGOs – foundations – and now the time of the mobilization of the economic sector. This mobilization must continue to denounce arbitrariness and treaty violations. In the globalized and disoriented world we have entered, the continued credibility of the word of states is more essential to security and peace than ever before. Thanks to the author for allowing us to better defend those persecuted around the world by so usefully assisting their advocates, without whom the universality of fundamental rights would be a vain hope.
The Honorable François Zimeray
Ambassador of France for Human Rights (2008-2013)
As someone engaged in the defense of political prisoners over the years, I regard The United Nations Working Group on Arbitrary Detention as a tour de force and seminal scholarly work, which makes an enormous contribution to understanding the phenomenon of arbitrary detention in our world today. In particular, it is also a comprehensive and practical guide for freeing the arbitrarily detained, infused with the author’s experiences as an international lawyer in this complex, interdisciplinary, and specialist field, where his exceptional work is widely known and respected for its unique and effective contributions.
The Honorable Irwin Cotler, P.C., O.C.
Chairman, Raoul Wallenberg Centre for Human Rights
Minister of Justice and Attorney General of Canada (2003-2006)
Up until the Working Group adopted Opinion No. 2/2003 on my case, I had been detained with total impunity and incommunicado by China for more than 14 months. Within a day of this decision being made public, I was finally given access to my local lawyer and my hope was restored, learning the world had not forgotten my plight. Despite still having faced a potential death sentence on spurious charges of endangering national security, this invaluable opinion from the United Nations combined with the relentless advocacy of this book’s author Jared Genser resulted in my early release, enabling me to dedicate the balance of my life pursuing freedom, democracy, and human rights for the Chinese people.
President, Initiatives for China