It is not enough that the national law permits the detention of victims of trafficking. The prohibition on arbitrariness requires both that the law must not be arbitrary and that it must not be applied arbitrarily. The word “arbitrary” refers to elements of injustice, unpredictability, unreasonableness, capriciousness, and lack of proportionality, as well as to the commonlaw principle of due process of law.277 Deprivation of liberty as provided by law must not be “manifestly disproportional, unjust or unpredictable”. The manner in which a decision is taken to deprive someone of his or her liberty must be capable of being deemed appropriate and proportional in view of the circumstances of the case. Importantly, a detention that was not arbitrary originally may become so if it continues over time without proper justification.278 According to both the Human Rights Committee and the United Nations Working Group on Arbitrary Detention, the body that deals exclusively with this issue, the holding of immigrants in prolonged administrative custody without the possibility of administrative or judicial remedy may amount to arbitrary detention.279 The UNHCR Guidelines on the Detention of Asylum-Seekers indicate a presumption against detention and a requirement that alternative means to secure lawful outcomes (such as identification, victim protection, etc.) should be considered first.280 no case justify a deprivation of liberty” (art. 14.1)). The same article requires that persons with disabilities who are deprived of their liberty are entitled, on an equal basis with others, to “guarantees in accordance with international human rights law”. • not specifically provided for in law or is imposed contrary to law; • provided for or imposed in a discriminatory manner;281 Ibid., p. 225. The Human Rights Committee has commented that not only must the detention be authorized by law, the detention must also be reasonable and necessary in all of the circumstances of the case, and a proportionate means to achieve a legitimate aim: Van Alphen v. Netherlands, Human Rights Committee, Communication No. 305/1988, para. 5.8; A. v. Australia, Human Rights Committee, Communication No. 560/1993, para. 9.2. Finally, States are required, under international law, to ensure that the necessary procedural guarantees are in place for identifying and responding to situations of unlawful or arbitrary deprivation of liberty. The International Covenant on Civil and Political Rights specifies several of these procedural guarantees, including an individual’s entitlement to test the lawfulness of his detention before a court (art. 9 (4)), as well as an enforceable right to a remedy if the detention is found to be unlawful (art. 9 (5)). Under this analysis, it is evident that the detention of victims of trafficking in jails, police lockups, immigration detention facilities, welfare homes or shelters could amount to unlawful deprivation of liberty and violate the prohibition on arbitrary detention. The risk of detention being characterized as unlawful or arbitrary is particularly high if it can be shown that such detention is: 277 278 Nowak, op. cit., p. 225. Commission on Human Rights resolution 1997/50 on the question of arbitrary detention; Working Group on Arbitrary Detention deliberation No. 5 regarding the situation of immigrants and asylum-seekers (E/ CN.4/2000/4, annex II). 279 UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers (February 1999), available at: http://www.unhcr.org /refworld/pdfid/3c2b3f844.pdf. 280 The grounds for such unlawful discrimination would include those set out in the International Covenant on Civil and Political Rights: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, taking into account potential limitations on the rights of non-citizens as outlined in part 2.1, section 1.3, above. Note that detention found to be discriminatory on the basis of disability would, absent adequate justification, contravene article 14 of the Disability Convention. 281 COMMENTARY 135