Preventive Detention of Terror Suspects

A New Legal Framework

Diane Webber

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138936898
• eBook ISBN: 9781317385486
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Preventive detention as a counter-terrorism tool is fraught with conceptual and procedural problems and risks of misuse, excess and abuse. Many have debated the inadequacies of the current legal frameworks for detention, and the need for finding the most appropriate legal model to govern detention of terror suspects that might serve as a global paradigm.

This book offers a comprehensive and critical analysis of the detention of terror suspects under domestic criminal law, the law of armed conflict and international human rights law. The book looks comparatively at the law in a number of key jurisdictions including the USA, the UK, Israel, France, India, Australia and Canada and in turn compares this to preventive detention under the law of armed conflict and various human rights treaties. The book demonstrates that the procedures governing the use of preventive detention are deficient in each framework and that these deficiencies often have an adverse and serious impact on the human rights of detainees, thereby delegitimizing the use of preventive detention.

Based on her investigation Diane Webber puts forward a new approach to preventive detention, setting out ten key minimum criteria drawn from international human rights principles and best practices from domestic laws. The minimum criteria are designed to cure the current flaws and deficiencies and provide a base line of guidance for the many countries that choose to use preventive detention, in a way that both respects human rights and maintains security.

Part 1 Detention provisions in Human Rights Treaties and Geneva Conventions

1 Introducing the Treaties

DOI: 10.4324/9781315676548-1

Human rights law underpins all the domestic detention laws surveyed in this work, and also has a part to play in the law of armed conflict (LOAC). Part I analyzes the detention of terror suspects in international law in five general human rights treaties, and in LOAC.¹ The detention provisions are set out in Appendix 3, Table 1. This chapter introduces the human rights treaties and their jurisdiction, focusing on the thorny problem of the extraterritorial reach of the treaties. This issue is particularly relevant to detention, in cases where a state captures and detains individuals outside of its home territory.

The Treaties

The detention provisions in the International Covenant on Civil and Political Rights² (ICCPR) provide the foundation for the treatment of detention in the regional human rights treaties. However, the treaty wording is very broad and has generated an enormous amount of comment and interpretive, but non-binding, jurisprudence from the United Nations Human Rights Committee (HRC), from which can be gleaned many important criteria to form the basis of core global principles.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention),³ through the judgments of the European Court of Human Rights (ECHR), has become a dynamic and powerful instrument in the response to new challenges and the ongoing promotion of the rule of law and democracy in Europe.⁴ The ECHR has developed an extensive body of case law, much of it concerned with detention. The Council of Europe describes the ECHR as the “conscience of Europe”⁵ and its landmark judgments in detention and other cases have prompted changes in national laws.⁶ Its interpretive jurisprudence yields much useful and important material to assist in the search for global core principles.

The American Convention on Human Rights (American Convention)⁷ was modeled on both the ICCPR and the European Convention.⁸ The rights and freedoms it guarantees are those set forth in the American Declaration on the Rights and Duties of Man.⁹ Although the American Declaration was adopted as a non-binding declaration, it is generally recognized that it provides an authoritative definition and interpretation of the human rights obligations by which Organization of American States (OAS) member states are bound under their Charter.¹⁰ The Inter-American Court of Human Rights (IACHR) has confirmed that the American Declaration defines the human rights set out in the OAS Charter and is “a source of international obligations related to the Charter of the Organization for those states.”¹¹

The African Charter of Human and Peoples’ Rights¹² (African Charter) does not have a robust enforcement mechanism, and little can be done to police or sanction violations effectively. In 1998 the Organization of African States adopted a Protocol to the African Charter to establish an African Court on Human and Peoples’ Rights.¹³ The African Commission and states may submit cases to the Court,¹⁴ but NGOs and individuals may only do so if their state has made a declaration “accepting the competence of the Court” to receive such cases.¹⁵ It appears that the Court has not dealt with any cases alleging a violation of Article 6 of the African Charter.¹⁶

The most recent regional human rights instrument is the Arab Charter on Human Rights (Arab Charter).¹⁷ Although it is an improvement on an earlier 1994 version,¹⁸ critics of the Charter point out that it is still inconsistent with international human rights law.¹⁹

Jurisdiction

ICCPR

The issue of territorial reach is particularly relevant to whether the ICCPR applies to the practice of detention by the United States in Guantánamo Bay, Afghanistan and Iraq, and by Israel in the Occupied Territories. Contrary to most other countries, the United States has consistently maintained that its human rights obligations do not apply extraterritorially.²⁰ The United States eschews international human rights laws as far as LOAC detention in Guantánamo and Afghanistan is concerned, and presumably will do so in respect of any future detention in any place outside of the United States.

Israel’s position is that the ICCPR and similar instruments “did not apply directly to the current situation in the occupied territories.”²¹ Israel maintains that it has been in a state of emergency since 1948 and has derogated from its ICCPR obligations.²²

The interpretation of Article 2 has been, and still is, the subject of extensive debate and discussion, by the HRC,²³ the International Court of Justice (ICJ),²⁴ human rights organizations,²⁵ and scholars.²⁶ The debate centers round whether certain words are to be interpreted conjunctively or disjunctively.²⁷ The controversy derives from the interpretation of highlighted words of Article 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory andsubject to its jurisdiction the rights recognized in the present Covenant …” (emphasis added).

No presumptions can be found either against or in favor of extraterritoriality in international law, and the only guidance that can be discovered is in the “text, object and purpose of each particular treaty.”²⁸ The basic rule governing interpretation of treaties is in Article 31 of the Vienna Convention,²⁹ which prescribes looking at the ordinary meaning of the words. However, if the meaning is “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable” then recourse may be had to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.”³⁰ It has often been necessary to turn to the travaux préparatoires that documented treaty negotiations, but the debates have not always reached clear conclusions.

It might seem obvious to read the words conjunctively, as do the United States³¹ and Israel,³² but the literature suggests that the position is far from clear. One suggestion is that the conjunctive interpretation could lead to a result that is inconsistent with the object and purpose of the ICCPR or one that is manifestly absurd.³³ It is therefore pertinent to see what light, if any, is shed on the interpretation of the relevant words in the travaux préparatoires. The United States had introduced the notion of territory into the drafting, and had suggested the wording that found its way into the final form of Article 2(1).³⁴

Many commentators have analyzed the explanation given by the United States delegate, Eleanor Roosevelt, that the purpose of the wording in Article 2(1) was to make it clear that the draft Covenant would apply only to persons within the territory and subject to the jurisdiction of contracting states.³⁵ The context of her comments is important as she was concerned that the ICCPR might oblige state parties to enact legislation that affected persons who, although outside their state’s territory, were technically within its jurisdiction for certain purposes, such as those in the then occupied territories of Germany, Austria, and Japan.³⁶

However, according to Michal Gondek, Eleanor Roosevelt did not clearly explain how the phrase “within the territory and subject to its jurisdiction” was to be interpreted. He opines that the United States intended to avoid acquiring positive obligations by legislating with regard to persons in occupied territories in situations that were outside United States jurisdiction as an occupying power.³⁷ In short, it may be that the rationale in this particular context was to avoid assuming obligations that a state could not meet.³⁸ Dominic McGoldrick supports this interpretation, noting that the record in the travaux préparatoires affirms that the words would have to be read disjunctively in order to protect the Covenant rights.³⁹

Quite soon after the coming into force of the ICCPR in 1976, the HRC began to depart from the literal reading of the text.⁴⁰ It then “abandoned the literal meaning altogether” in its General Comment No. 31 of 2004,⁴¹ instead prescribing a disjunctive interpretation – that the rights be available to all individuals who may find themselves in the territory or subject to the jurisdiction of the state party.⁴² This formula is repeated in General Comment 35 of 2014.⁴³

The ICJ has commented that the travaux préparatoires confirm the HRC’s interpretation of Article 2(1),⁴⁴ although Dennis and Surena consider it significant that the ICJ did not cite General Comment 31 in its opinion,⁴⁵ but relied on the HRC rulings in Lopez Burgos ⁴⁶v. Uruguay and Celiberti v. Uruguay.⁴⁷ The commentators are firmly of the view that the travaux préparatoires confirm the conjunctive interpretation.⁴⁸ In support of their argument they point to the words of HRC member Christian Tomuschat in Lopez Burgos concerning the correct interpretation of Article 2(1) that “[t]he formula was intended...

Table of contents

• Cover Page
• Half Title Page
• Series
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Table of cases
• Table of legislation
• Table of treaties and other sources
• Introduction
• PART I Detention provisions in Human Rights Treaties and Geneva Conventions
• PART II The seven countries
• PART III Recommendations
• Appendix 1 Table of countries using preventive detention of terror suspects before or without charge
• Appendix 2 Table of Jihadi terror threats in surveyed countries since 9/11
• Appendix 3
• Select bibliography
• Index