4. Ensuring Deprivation of Liberty as a Measure of Last Resort and for the Shortest Appropriate Period of Time As with all human rights, restrictions of their enjoyment are only permissible if provided for in an explicit provision of domestic law (principle of legality or lawfulness) and as an exceptional measure in accordance with the principles of proportionality and nondiscrimination (principle of non-arbitrariness). The prohibition of arbitrary deprivation of liberty means that any arrest and detention of human beings must not be manifestly nonproportional, unjust or unpredictable, and the specific manner in which an arrest is made must not be discriminatory.20 Certain provisions of general human rights law go beyond the requirements of lawfulness and non-arbitrariness and prescribe, for example, that police custody shall only last for a very short period of time (usually not longer than 48 hours) and pre-trial detention ‘shall not be the general rule’.21 Article 37(b) CRC clearly goes beyond these general limitations on the right to personal liberty by prescribing that arrest, detention or imprisonment of a child ‘shall be used only as a measure of last resort and for the shortest appropriate period of time’. This means that children should in principle not be deprived of liberty, and if really necessary in light of the specific circumstances of the case only for a short period of time, and that States are required to apply non-custodial measures when dealing with children. In the context of the administration of justice, Article 40(4) CRC provides that a ‘variety of dispositions, such as care guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence’.22 With this comprehensive list of non-custodial measures, the CRC clearly indicates that children in conflict with the law should, in principle, be dealt with outside the criminal justice system by means of transferral to the child welfare system or similar non-custodial alternatives.23 The rule that children in principle shall not be deprived of liberty goes beyond the context of child justice and applies to all situations in which children are at risk of being detained, including in the child welfare system and when children are placed in institutions. 20 Cf. Nowak (2005), op. cit., p. 173. 21 Cf. Article 9(3) ICCPR. 22 See also: UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’), A/RES/40/, 29 November 1985, above all Rule 11 (Diversion). See further: UN General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (‘Riyadh Guidelines’), A/RES/45/112, 14 December 1990; and UN General Assembly, United Nations Standard Minimum Rules for Non-custodial Measures (‘Tokyo Rules’), A/RES/45/110, 2 April 1991. 23 See: Barry Goldson, ‘Child Imprisonment: A Case for Abolition’, Youth Justice, Vol. 5(2), 2005, p. 77; Schabas & Sax (2006), op. cit., pp. 81 ff; Ton Liefaard, Deprivation of Liberty of Children in Light of International Human Rights Law and Standards, Antwerp/Oxford/Portland, Intersentia Publishing, 2008; Ursula Kilkelly, Louise Forde & Deirdre Malone, Alternatives to Detention for Juvenile Offenders: Manual for Good Practices in Europe, International Juvenile Justice Observatory, Brussels, 2016; Liefaard (2018), op. cit., p. 330. See further Chapter 9 on the administration of justice. 69