1. The U.S. System of Immigration Detention is Arbitrary under International Law Because it is Not Proportional, Reasonable or Necessary
Arbitrary detention is absolutely prohibited under international law. All major international and regional instruments relating to the protection and promotion of human rights contain the prohibition, including the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR provides that “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” The prohibition is also part of legally binding customary international law. To avoid classification as arbitrary, immigration detention must be an exceptional measure of last resort. When it is used, it must be justified as proportionate, reasonable and necessary.
Because the U.S. fails to demonstrate that immigration detention is in each case proportional, reasonable and necessary, the U.S. immigration detention system is arbitrary under international law.
Back to the backgrounder page