Counter-terrorism and the Detention of Suspected Terrorists

Preventive Detention and International Human Rights Law

Claire Macken

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136741869
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

In a regional, national and global response to terrorism, the emphasis necessarily lies on preventing the next terrorist act. Yet, with prevention comes prediction: the need to identify and detain those considered likely to engage in a terrorist act in the future. The detention of 'suspected terrorists' is intended, therefore, to thwart a potential terrorist act recognising that retrospective action is of no consequence given the severity of terrorist crime. Although preventative steps against those reasonably suspected to have an intention to commit a terrorist act is sound counter-terrorism policy, a law allowing arbitrary arrest and detention is not. A State must carefully enact anti-terrorism laws to ensure that preventative detention does not wrongly accuse and grossly slander an innocent person, nor allow a terrorist to evade detection.This book examines whether the preventative detention of suspected terrorists in State counter-terrorism policy is consistent with the prohibitions on arbitrary arrest and detention in international human rights law. This examination is based on the 'principle of proportionality'; a principle underlying the prohibition on arbitrary arrest as universally protected in the Universal Declaration of Human Rights, and given effect to internationally in the International Covenant on Civil and Political Rights, and regionally in regional instruments including the European Convention on Human Rights. The book is written from a global counter-terrorism perspective, drawing particularly on examples of preventative detention from the UK, US and Australia, as well as jurisprudence from the ECHR.

1 Preventive detention

Background, history and practice

On 11 September 2001 two airliners destroyed the World Trade Center in New York, United States of America.¹ A third airliner targeted the Pentagon, Washington DC² whilst a fourth airliner crashed in rural Pennsylvania, its destination believed to be the Presidential White House, apparently thwarted by those on board.³ The perpetrators were nineteen members⁴ of an organisation known as al-Qaeda,⁵ an armed Sunni Islamic group associated with acts of terrorism.⁶

Three days after the terrorist events of 11 September 2001, the United States President at the time, George W Bush, issued Proclamation 7463. It was entitled ‘Declaration of National Emergency by Reason of Certain Terrorist Attacks’. By 18 September 2001, the United States Congress had passed the ‘Authorization for Use of Military Force’,⁷ invoking a War Powers Resolution.⁸ This facilitated former President Bush issuing a Presidential Military Order entitled ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism’⁹ eventually leading to the practice of detaining suspected terrorists for the purpose of interrogation or prosecution. Shortly after, the PATRIOT Act 2001 (United States)¹⁰ formally gave the Attorney-General authority to take a non-citizen into custody if there were reasonable grounds to believe he or she was engaged in activity that endangered the national security of the United States. From 2001 the Bush Administration started to detain individuals as suspected members of al-Qaeda or Taliban, referring to them as ‘enemy combatants’¹¹ with some detained in detention facilities, for example the United States detention facility at Guantánamo Bay, Cuba. Detention was for the ultimate purpose of preventing the next terrorist attack.¹²

Less than three weeks after the events of 11 September 2001, on 28 September 2001, the United Nations Security Council also issued Resolution 1373 (2001) (‘Resolution 1373’).¹³ All member states of the United Nations¹⁴ were asked by its terms to criminalise terrorist acts, and to legislate to prevent the financing, planning, preparation and support for terrorism. As Resolution 1373 was issued under the mandatory provisions of Chapter VII Charter of the United Nations, all member states were bound to respect its directions.¹⁵ Resolution 1373 created a new United Nations Counter-Terrorism Committee, requiring all States to report to the new Committee on its new counter-terrorism measures no later than ninety days after the Resolution was issued.¹⁶

Following the lead of the United States, governments across the world responded with new counter-terrorism laws and policies intended to prevent a future terrorist attack.¹⁷ Of the many measures introduced, one of the most controversial was the practice of detaining suspected terrorists, without criminal charge or trial, as a preventive security measure.¹⁸

The preventive detention of suspected terrorists remains part of many State counter-terrorism laws today. In the United Kingdom, Brazil, Colombia, France, Germany, Italy, Norway, Greece, Ireland, Spain and Turkey, for example, there is what Elias describes as a ‘pre-trial detention framework’.¹⁹ In this framework the pre-trial detention of terrorist suspects is wholly or largely governed by the existing provisions of the penal code.²⁰ French legislation also permits preventive detention for suspected terrorists for up to 92 hours (four days).²¹ Preventive detention is for the purpose of facilitating police investigations by allowing the police to hold a suspect in prison until evidence can be obtained for criminal prosecution.²²

In the United Kingdom, as a further example of this model, preventive detention is in the form of ‘pre-charge detention’ situated within the criminal law and pursuant to the Prevention of Terrorism Act 2005 (United Kingdom)²³ and Terrorism Act 2006 (United Kingdom).²⁴ The purpose of United Kingdom pre-charge detention is to allow a terrorist suspect to be detained, without criminal charge, in order for the police to have time to obtain, preserve, analyse or examine evidence for use in criminal proceedings.²⁵ While the main impetus of the arrest may ‘have a preventive or disruptive effect on a terrorist or network of terrorists, and while this may be the impetus for executing arrests at any point during an investigation, legislation does not allow continued detention on this basis’.²⁶ According to the United Kingdom Government, the predominant purpose of pre-charge detention is to ‘secure sufficient admissible evidence for use in criminal proceedings’.²⁷ Once a person is arrested by the police under pre-charge detention, he or she may be detained without criminal charge for an initial period of 48 hours. Additional periods of detention, in seven-day increments, may then be granted by magistrates, up to a total of fourteen days. Detention from fourteen to twenty-eight days may then be granted by a High Court judge. Applications for the extensions of detention are made by the Crown Prosecution Services’ Counter Terrorism Division, rather than the police.²⁸ The maximum period of detention is 28 days.²⁹

The current enactment of pre-charge detention was a change from the previously enacted preventive detention pursuant to Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (United Kingdom) (‘ATCSA’), passed on 13 December 2001. ATCSA provided for the ‘detention of suspected international terrorists’,³⁰ by allowing the United Kingdom Home Security Office to indefinitely detain any non-British citizen suspected of being a terrorist. In 2005 the United Kingdom Parliament repealed ATSCA in response to the House of Lords decision in A v Secretary of State for the Home Department.³¹ In that case, the House of Lords held that Part 4 ATSCA violated the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’)³² as to the right to liberty and the right to freedom from discrimination, leading to its repeal. Chapter 5 of this monograph uses the example of United Kingdom pre-charge detention laws to determine whether this model would be considered a less intrusive alternative measure to State preventive detention regimes as part of the application of the principles of international human rights law.

In New Zealand, South Africa and Canada, the model of preventive detention is described as an ‘immigration detention framework’, where immigration laws are adapted and used to provide for the oversight of the preventive detention of terrorist suspects.³³ The United Sates has also expanded and employed its framework of immigration laws as an alternative to detention to exclude both illegal immigrants stopped at the border but also foreign nationals who have legally entered and resided in the US for some time.³⁴ In Canada preventive detention powers were previously enacted in the Anti-Terrorism Act 2001 (Canada) on 18 December 2001.³⁵ The Anti-Terrorism Act 2001 (Canada) permitted preventive arrest for a period of 72 hours if the applying police officer believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that arrest was necessary to prevent the activity.³⁶ As a consequence of a five-year sunset clause in the Anti-Terrorism Act 2001 (Canada), the preventive arrest provisions of the Canadian Anti-Terrorism Act 2001 expired on 1 March 2007 and were not renewed following a vote in the Canadian House of Commons 159 – 124 on 27 February 2007.³⁷ In 2010 there have been calls for the reinstatement of preventive detention laws in Canada.³⁸ In terms of immigration detention, Canada has a ‘security certificate’ process allowing the government to arrest detain and deport a foreign national who has been made subject to the certificate on the grounds that he or she is a danger to national security.³⁹ Immigration law, rather than the criminal law, is therefore, now used as the primary means of protecting and promoting national security, along with criminal law mechanisms.⁴⁰

In other countries, such as Pakistan, India, Kenya, Tanzania, Sri Lanka, Zambia, Mozambique, Malaysia, Nigeria, Russia, Singapore, Swaziland, Trinidad and Tobago, the ‘national security detention framework’ uses State Constitutions or relevant statutes to delegate discretion to the executive to hold individuals for the purpose of preventing terrorism.⁴¹ In particular, India has a long history of preventive detention,⁴² where the practice is expressly permitted in Article 22 Constitution of India. The Constitution permits preventive detention in non-emergency situations and allowing the detention of a person without charge or trial for a period of up to three months without judicial review. Article 22(3) Constitution of India excludes procedural guarantees of due process otherwise applicable to any person who is arrested or detained under any law providing for preventive detention. After 11 September, India passed the Prevention of Terrorism Act (POTA) following a terrorist attack on India's Parliament building in December 2001, permitting prolonged detention without criminal charge.⁴³ POTA was eventually repealed in September 2004.⁴⁴

Two other countries, Australia and Israel, are best described as a subset of the national secur...