of liberty must be on such grounds and in accordance with such procedure as are established by law.21 The right not to be subject to arbitrary detention is likely also to have become a principle of customary international law.22 It is thus binding upon all States. The Human Rights Committee has interpreted arbitrary detention in a broad manner which extends beyond simple unlawfulness to include elements of inappropriateness and injustice.23 Cases of deprivation of liberty provided for by law must not be manifestly unproportional, unjust or unpredictable. The specific manner in which a person is detained must not be discriminatory and must be able to be deemed appropriate and proportional in view of the circumstances of the particular case.24 Even where a person is charged with an offence, pre-trial detention should be the exception and only resorted to where it is necessary in all of the circumstances of the case, for example to prevent flight or interference with evidence.25 What is commonly called administrative 21 4. No one shall be arbitrarily deprived of the right to enter his own country. Art 9: 1. Everyone has the right to liberty and security of person. 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. 2. 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. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 22 Under Article 53 of the Vienna Convention on the Law of Treaties, a customary or peremptory norm of general international law (jus cogens) is: ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ The IBA points out that the right not to be subjected to arbitrary detention is reflected in a broad range of international instruments, commentaries and State Practice, including every major international human rights convention that contains a general enumeration of rights: Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners (13 January 2004) Rasul v Bush US Supreme Court 03-334, 16 January 2004 at 17. The IBA also notes that the right is preserved during times of armed conflict under IHL which establishes that all detainees must be promptly classified in order that they may receive rights and privileges appropriate to their status and ensures fundamental due process for all detainees, regardless of status, so that no person is detained arbitrarily or indefinitely: at 25. 23 A v Australia (1997) Communication No. 560/1993 at para 9.2. 24 Manfred Novak UN Covenant on Civil and Political Rights: CCPR Commentary (Engel,1993) 172-173. 25 See Human Rights Committee General Comment 8, Article 9 at para 3 and A v Australia (1997) Communication No. 560/1993 at para 9.2. 37