The true cost of arbitrary detention

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Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.

The writer is an English barrister and deputy chair of the High Level Panel of Legal Experts on Media Freedom. He is lead counsel for Alaa Abd El-Fattah

On Tuesday, the UN Working Group on Arbitrary Detention issued a damning decision against Egypt: the continued imprisonment of Alaa Abd El-Fattah — a prizewinning author and British citizen — is arbitrary and, therefore, in violation of international law.

It is a decision of striking clarity that should resonate far beyond Egypt.

Abd El-Fattah was a leading voice of Egypt’s 2011 revolution. He has spent the better part of the past 17 years behind bars.

His most recent conviction — five years for sharing a Facebook post — was delivered by an emergency court, the rulings of which are immune from appeal.

The charges were vague, the proceedings opaque. The facts scarcely matter: his detention has always been about what he represents, not what he has done. He was not released even after serving his five-year term.

The working group’s decision confirms what many already suspected: that the machinery of arbitrary detention is not an aberration, but a method. And the irony is stark: in trying to assert control, states such as Egypt erode the very authority they seek to preserve.

This irony has not gone unnoticed. In 2021, Canada launched a global initiative — the Declaration Against Arbitrary Detention in State-to-State Relations — to repudiate the instrumentalisation of human beings in diplomatic or political disputes.

Now endorsed by more than 70 governments, the declaration reflects a growing consensus at the international level: that arbitrary detention violates fundamental human rights and also destabilises the legal and economic foundations on which states depend.

Take the other cases the UN working group has examined in recent months: Jimmy Lai, imprisoned in Hong Kong for the peaceful exercise of journalistic freedoms; and José Rubén Zamora, a Guatemalan publisher held for investigating corruption.

These cases may have occurred in different jurisdictions, but the pattern is the same: speech is punished; legal process is hollowed out; the law is turned against those it is meant to protect.

Such practices doubtless leave scars on the international legal order. But they also send clear signals — to investors, insurers and creditors. In today’s global economy, where reputation is currency and stability prized, legal arbitrariness is a liability.

It is not simply that international institutions — such as the World Bank — track rule of law indicators. It is that arbitrary detention, once identified and repeated, becomes a marker of sovereign risk.

Capital flees unpredictability. So does talent. The reputational cost is not only a critical press release. It is a higher cost of borrowing, fewer partnerships and diminished trust.

And there are, of course, other consequences — including travel bans and sanctions. The very recent International Court of Justice case brought by France against Iran concerning the detention of French citizens Cécile Kohler and Jacques Paris adds a new dimension: that arbitrary detention is not just wrong — it is justiciable before the ICJ.

Some governments arbitrarily detain individuals to display strength. But in truth, doing so only reveals a deeper fragility: a lack of confidence in the rule of law, in institutions, and in the ability to govern without coercion.

No society grows stronger or safer by locking away independent voices. And no economy thrives in the absence of legal certainty.

A better path exists. It lies in the recognition that the rule of law is not a western conceit but a precondition for peace and order.

States that uphold these principles not only meet their international legal obligations, but they also build trust and attract sustainable investment and global talent.

Abd El-Fattah remains in prison. The UN working group has now called for his immediate release, reparations, and accountability.

But his case is now about more than Egypt or how far the UK government must go to protect its own citizens abroad.

It is about how far the international community is willing to let arbitrary detention spread before we accept that the costs are borne by us all.

A state that governs by lawlessness does not project strength. It exposes its own insecurity.

By freeing Abd El-Fattah, Egypt can take a significant step forward towards restoring its international reputation — and offer a signal to others that it is never too late to reverse course.