Counter-Terrorism Detention in Wartime and Emergency
The climate of panic and fear that followed the terrorist attacks on 9/11 and the subsequent war on terror has influenced the states’ response against terrorism. The real or perceived increase in the level of threat posed by terrorism has generated the conviction in many governments that security can be effectively pursued only by diminishing the protection afforded by rights. Against this backdrop, the chapter analyzes the regimes applicable to counter-terrorism detention under international humanitarian law and international human rights law, by underlining their specificities and their reciprocal interaction. The chapter demonstrates how states have attempted to distort the set of rules governing detention under either regime, undermining the fundamental guarantees available to suspected terrorists held in detention. On this respect, it is highlighted the pivotal role played by the right to challenge the lawfulness of one’s detention as safeguard against arbitrariness in wartime and emergency. The chapter shows that counter-terrorism detention practices, as well as other restrictive measures such as control orders, are chiefly rooted in a logic of preemption that does not always culminate in the prosecution of alleged terrorists. Through the exposition of the US and the UK experience, it is illustrated the discriminatory nature of some detention practices that have overwhelmingly targeted specific groups of people. The challenges of counter-terrorism detention are examined through the account of the frequent confrontations between governments and national and international courts, showing how the judiciary has played an active role in resisting the attempts to weaken the protection afforded to suspected terrorists by human rights.
KeywordsDetention Counter-terrorism Unlawful combatants Judicial review State of emergency Control orders Special advocates Extraterritoriality
The United Nations Security Council Resolution 1373 (2001) requires states to “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.” The binding nature of this resolution, which was adopted under Chapter VII of the UN Charter, makes clear that states have an obligation under international law to bring terrorists to justice.
The resolution was adopted in the immediate aftermath of the shocking terrorist attacks of 11 September 2001 on the US territory. Nonetheless, even before the climate of international emergency that followed the powerful image of the collapse of the Twin Towers, states have regularly sought to bring to justice those suspected of being involved in terrorism, as they do with all those suspected of any crime.
It may seem superfluous to specify that the detention of those subjects is seen as a necessary measure in order to neutralize them before they could be, eventually, prosecuted and tried in a court. This conclusion, as we will see throughout this chapter, is however not as obvious as it may seem.
Insofar as a suspected terrorist is apprehended and detained for the purpose of a trial before a regularly constituted court, with all the guarantees that international human rights law provides, the detention does not raise any legal issue different from any other detention. Thus, this chapter is not primarily concerned with this scenario. Rather, the detention of terrorists at issue here is one that has been termed in different ways: “security detention,” “preventive detention,” “administrative detention,” “executive detention,” “internment,” and the like (Macken 2011: 5). These definitions underscore some of the main features of the counter-terrorism detention that is analyzed in the present chapter and, namely, the detention is ordered by the executive authority; the primary purpose of the detention is to safeguard security against future threats that potentially dangerous individuals may pose and to elicit information that may lead to prevent future attacks, and not necessarily to establish criminal responsibility for acts committed; consequently, the person detained is – in most cases – not charged nor brought to trial.
First, the detention of suspected terrorists has been the apex of a battlefield where a certain rhetoric of security has sought to overshadow individual freedoms.
Second, it has had constitutional implications, leading to frequent confrontations between the executive and the judiciary.
Third, it has caused a gradual stigmatization of certain categories of people, in particular noncitizens, by leveraging the fear in the “other” as a tool to justify discriminatory detention practices.
Those challenges – which admittedly existed already before 9/11 – have been intensified as a result of the global “war on terror” undertaken after the terrorist attacks against the USA. It has been noticed that terrorism has undergone a major transformation in recent years, shifting from acts of terror committed by groups that seek to promote specific political goals to terrorist attacks predominantly motivated by fundamentalist ideologies and that are carried out anywhere in the world against crowds of defenseless people (Ben-Dor and Pedahzur 2003). In more recent times, the massive migration flow toward the European external borders, with the associated risk of infiltration of terrorists, as well as the so-called “radicalization” of people often marginalized in Western society, has increased the perception of terrorism as a threat of an even greater magnitude than in the past. Whether the increase in the level of threat is real or perceived, undeniably the global scale of terrorism has prompted fear and panic across the world. As noted (de Londras 2011: 10–29), terrorism has generated “bottom-up popular panic,” triggering popular pressure for more security that has naturally influenced political actors, and “top-down manufactured panic,” instigated by political actors with the intention of maximizing state power in order to fight terrorism.
As a result, the interaction of popular and manufactured panic has offered the opportunity for states to design and implement measures intended to enhance security at the expense of rights.
Therefore, the practices of detention described in this chapter can be understood only against this background of panic and fear that has shaped the states’ response against terrorism. If one is ready to concede that law is grounded in social reality and that legal acts are the product of human activities, then it is easier to figure out why individuals’ emotions affect lawmaking (Bianchi 2010: 175). The question is whether human rights law contains at the same time the antibodies to react against an overreliance on emotions that may lead to repressive policy and legislative choices likely to undermine individuals’ rights.
The Applicable Legal Framework
The legal framework regulating the detention of suspected terrorists depends to a certain extent upon the perspective adopted to tackle the phenomenon of terrorism.
Before 9/11, terrorism was seen essentially as a criminal phenomenon, often with transnational aspects. Accordingly, criminal law was the instrument deemed appropriate to address terrorist threats, whose cross-border nature required a greater cooperation and coordination among state authorities.
The collapse of the Twin Towers on 9/11 and the following worldwide struggle to eradicate terrorism have gradually started to generate the conviction that the “old” criminal law framework was insufficient to effectively deal with a real or perceived “new” form of terrorism. States began to cast doubt on the deterrent effect of ordinary criminal measures to counter global terrorist threats. As a result, they have put in places alternative strategies to pursue their fight against terrorism.
On one hand, the gravity of terrorism has been assimilated to the threat posed by an armed conflict. The main legal implication of this approach has been the application of the law governing armed conflicts, namely, international humanitarian law.
On the other hand, other states have chosen not to follow this approach, but they have preferred to pass emergency legislation authorizing measures that allow for greater flexibility in the fight against terrorism.
The choice between these two strategies entails different consequences for the detention of terrorists, since the regime governing detention differs – in principle – under international humanitarian law and international human rights law. Whereas the logic of human rights law focuses chiefly on prosecuting suspected criminals and establishing their individual responsibility, the logic of international humanitarian law is more focused on weakening the enemy and reducing their capacity to pose a future threat (Shany 2009: 22–23). Hence, the tendency of some states to adopt a war-like strategy underlies the intention – at symbolic level – to provide a more muscular response to terrorism.
The differences among the two legal regimes, however, should not overshadow their numerous points of intersection. In this respect, it must be borne in mind that the application of international humanitarian law does not completely rule out the applicability of international human rights law. The prevalent opinion – although not totally uncontroversial (Milanovic 2011) – is that international humanitarian law constitutes lex specialis, which means that, when international human rights law and international humanitarian law are in contrast, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflicts. Nonetheless, international human rights law continues to apply also in wartime, especially when international humanitarian law does not fully regulate a specific situation (Droege 2008). The lex specialis doctrine was authoritatively endorsed for the first time by the International Court of Justice in its Advisory Opinion on the Legality of the Threats or Use of Nuclear Weapons case (1996).
There is no rule in international law obliging states to detain suspected terrorists under one or the other legal regime. The necessary condition for international humanitarian law to apply, however, is the existence of an international or non-international armed conflict. Hence, provided that an armed conflict exists, the choice between the two detention regimes rests with the states, which must nevertheless take into account their overlap. What is more problematic is that – after 9/11 – some states have attempted to adjust the set of rules governing detention under either regime to the claimed necessity to ensure security against terrorist threats. On one hand, the USA – which has chosen to deal with terrorism through the armed conflict perspective – has attempted to carve out exceptions to the protective rules set forth in international humanitarian law (to the point of refusing their application entirely) while at the same time denying the applicability of international human rights law in wartime. On the other hand, the UK – which has chosen to tackle terrorism by resorting to emergency measures – has not denied the applicability of international human rights law, but has attempted to reshape it, undermining the protection afforded to detainees by human rights treaties. Those challenges to human rights have been referred to as “external” in the case of the USA and “internal” in the case of the UK (de Londras 2011).
For the sake of analytical clarity, the present chapter will maintain the distinction between the framework regulating detention under international humanitarian law and under international human rights law; at the same time, the areas of overlap between the two will be pinpointed, especially through the exposition of some jurisprudential developments. The analysis of the two legal frameworks will aim at showing how detention practices introduced in particular by the USA and the UK have attempted to distort the rules affording protection to those detained for terrorism-related activities.
Detention Regime Under International Humanitarian Law
The choice of the armed conflict approach to fight terrorism is emblematically represented by the US response to the 9/11 terrorist attacks. Few days after the attacks, the US Congress passed the Authorization for Use of Military Force (AUMF) resolution, authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Pursuant to this resolution, the USA started a military campaign in Afghanistan against Al Qaeda and its supporters around the world.
As part of the USA’s efforts to fight terrorism, the Bush Administration claimed that it was authorized to detain suspected Al Qaeda supporters indefinitely and without the need to effectively review their detention, as we will shortly see in more detail. For this reason, suspected terrorists have often been detained in secret prisons run by the CIA abroad, with many of them being deported to the infamous US detention camp in Guantánamo Bay, Cuba. Detainees have been subject to torture and other ill-treatment during their interrogation, in order to elicit information allegedly vital to prevent the occurrence of other terrorist attacks against the USA and its citizens.
The lack of legal protection for those suspected of being involved in terrorism has been justified by the USA by claiming that terrorists captured in the context of the armed conflict against terrorism are “unlawful combatants” (sometimes also referred to as “unprivileged combatants” or “enemy combatants”).
In order to better explain what the doctrine of unlawful combatants means, and how it departs from the ordinary rules, it is necessary to preliminarily describe the legal framework governing the detention regime during armed conflicts.
International humanitarian law is the branch of law regulating both international and non-international armed conflicts. It consists mainly (although not exclusively) of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977. The Geneva Conventions have been universally ratified, and their provisions are considered customary international law. Relevant for the detention regime are in particular the Third Geneva Convention relative to the treatment of prisoners of war (GC III) and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), as well as the First Additional Protocol relating to the Protection of Victims of International Armed Conflicts (AP I).
International Armed Conflicts
In international armed conflicts, combatants, if captured, are entitled to the status of Prisoners of War (POWs). Art.4(A) of GC III specifies the conditions to be fulfilled for a person to enjoy POW status. Among them, of particular relevance for the detention of suspected terrorists are the rules providing that members of armed groups must be under a responsible command, distinguish themselves from civilians by “having a fixed distinctive sign recognisable at a distance” and “carrying arms openly,” and must “conduct[…] their operations in accordance with laws and customs of war.” The rationale of the detention of POWs is not to punish them, but to prevent them from continuing to participate in the conflict. POWs cannot be prosecuted for taking a direct part in hostilities (combatants’ privilege). The detaining power can only prosecute them for the commission of war crimes, but not for acts of violence that are lawful under international humanitarian law. As a general rule, under Art. 118 of GC III, POWs must be released and repatriated without delay after the cessation of active hostilities. GC III also stipulates that POWs must be treated humanely in all circumstances and sets out minimum conditions of detention covering issues such as accommodation, food, clothing, hygiene, and medical attention.
A different regime applies to civilians in international armed conflicts. Generally speaking, according to Art.50 of AP I, a civilian is any person who does not belong to some of the categories of persons referred to in Art.4(A) of GCIII. Differently from combatants, civilians cannot be made the object of an attack, and they do not have the right to participate directly in hostilities. If they nonetheless take direct part in the hostilities, they become lawful targets of attacks only for as long as their direct participation lasts. As a general rule, protected civilians cannot be detained, unless when imperative security reasons require the power in whose hands they are to take some measures against them. In this case, civilians can be subject to assigned residence or internment (Arts.41 and 78 of GC IV) and are entitled to have their case reviewed by a court or administrative board at least twice a year.
Furthermore, Art.75 of AP I lays down some fair trial guarantees applicable to any person, whether combatants or civilians, including the right to be informed promptly about the reasons for the detention; the right to be tried by an impartial court; the right to defense; the presumption of innocence; the privilege against self-incrimination; and the right to examine witnesses. They reflect well-established fair trial guarantees contained in the main human rights treaties.
Non-international Armed Conflicts
The legal framework governing the detention in non-international armed conflicts is not as detailed as the one that applies in international armed conflicts. In non-international armed conflicts, there is no combatant and POW status, nor provisions regulating the circumstances under which may civilians be detained. Art.3 common to the four Geneva Conventions simply states that persons taking no active part in the hostilities, including those detained, must be treated humanely in all circumstances and forbids “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Therefore, detention in non-international armed conflicts is mainly regulated by the domestic criminal legislation and international human rights law that, as noted earlier, continues to apply also in wartime.
The Unlawful Combatants’ Doctrine
Having briefly summarized the rules on detention under international humanitarian law, we can now turn to explain the US position concerning the detention of suspected terrorists.
According to the US executive, the “war on terror” in Afghanistan had to be classified as an international armed conflict against Al Qaeda and the Taliban. Therefore, international humanitarian law applicable during international armed conflicts would govern the detention of those suspected of terrorism. However, the USA has contended that terrorists are unlawful combatants, claiming that their detention is governed neither by the provisions applicable to POWs nor by those applicable to civilians.
The USA has refused to recognize POW status to suspected terrorists apprehended in Afghanistan. According to the USA’s position, members of Al Qaeda do not fulfil the conditions set forth in Art.4(A) of GC III briefly outlined above. Firstly, they do not comply with the requirement of distinguishing themselves from civilians, as they do not have a fixed distinctive sign recognizable at a distance nor carry arms openly. Admittedly, terrorists aim at blending into the civilian population to perpetrate their attacks. Secondly, they do not comply with the laws and customs of war, since attacks are carried out overwhelmingly against civilians. Therefore, for the USA suspected terrorists are unlawful combatants, and consequently they are not entitled to the status and treatment reserved to POWs under GC III. As a result, the USA maintained that they could be prosecuted for taking direct part in the hostilities.
However, the USA has also refused to recognize civilian status to captured terrorists, denying the application of those protective rules governing the detention of civilians under GC IV summarized above.
Since unlawful combatants are neither POWs nor civilians, pursuant to the Bush Administration, they can be detained until the end of the conflict (like POWs, but without their privilege) and without the review of the detention which is granted to protected civilians.
The US position – which seemed based on “some mysterious rules of customary international humanitarian law” (Sassòli 2006: 58) – has been widely criticized by legal scholars, as well as by the International Committee of the Red Cross in its role as guardian of the application of the Geneva Conventions.
The US claim that suspected terrorists are neither POWs nor civilians has been considered untenable, for it creates a law-free zone where no international rules apply to their detention, leading to systemic violations of the rights of detainees (Dörmann 2003; Sassòli 2006).
First, the position seems contradicted by the text, the object, and purpose of the Geneva Conventions. Art.4 of GC IV states that “persons protected by the Convention are those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” The same article continues by clarifying that, among other things, persons protected by the Geneva Convention III (i.e., prisoners of war) “shall not be considered as protected persons within the meaning of the present Convention.” This clearly indicates that any person who is not protected by the Geneva Convention III falls under the Geneva Convention IV. In other words, provided that the respective conditions are fulfilled, those captured in the context of an international armed conflicts are either POWs or protected civilians, and as such they are protected by the respective set of provisions that afford guarantees to the detention of either POWs or protected civilian internees. Hence, no one can fall between the two conventions and outside the law (Sassòli 2006: 60).
This conclusion is further warranted by the text of Art.5 of GC III that states that should any doubt arise on whether a person who has fallen in enemy hands is entitled to POW status, that person should have his or her status determined by a competent tribunal while enjoying in the meantime the protection afforded to POWs. The status determination should be made as soon as possible before an impartial tribunal able to assure a fair trial (Naqvi 2002).
The view that there is no gap between GC III and GC IV has been endorsed by the International Criminal Tribunal for the former Yugoslavia in the Čelebići case (1998, § 271).
The situation of legal uncertainty created by the Bush administration has had many dangerous implications. In the first place, while POWs can be detained everywhere across the world, civilians protected by GC IV cannot be deported out of an occupied territory (Arts.49 and 76 of GC IV). Therefore, given that Afghanistan was an occupied territory under the control of the USA and its allies, civilians who fell into US hands in Afghanistan could not have been held in Guantánamo, but only in Afghanistan. On the other hand, recognizing the status of POWs to terrorists would implicate – as we have seen above – that they must be released and repatriated after the cessation of the hostilities. This could have been considered problematic from the perspective of the US fight against terrorism, due to the risk that a terrorist released might continue to harbor hostile will toward the enemies and plan other attacks in the future. Along this line, the prospect that the “war on terror” will potentially never be over (or will not see its end in the near future) has opened up the possibility to a prolonged or indefinite detention, very often without trial, of suspected terrorists.
Judicial Review Available to the Unlawful Combatants
The distortion of the Geneva Conventions’ provisions applicable to those suspected of terrorist activities has led to the refusal by the US executive to recognize the very applicability of the Conventions themselves. This position has generated a negative impact on the detention of suspected terrorists detained in Guantánamo and elsewhere.
In the aftermath of the 9/11 terrorist attacks, President Bush issued a military order concerning the detention of terrorists, which allowed the USA to detain those suspected of having engaged in terrorism and try them for violations of the laws of war before military commissions. The order went as far as to deny the possibility for those detained to seek remedies before US courts.
The position of the Bush Administration was grounded in two decisions of the Supreme Court dating back to the Second World War. In Ex Parte Quirin (1942), the Court found that the trial of enemy combatants by military courts (in that case, a group of German spies, who did not enjoy POW status) was not unconstitutional, thus upholding the military jurisdiction over civilians. In Quirin, the trial took place on US territory. In a subsequent decision in the case Johnson v Eisentrager (1950), the Supreme Court held that defendants tried by US military courts in the context of a military occupation (hence outside US territory) were not entitled to seek judicial review before US courts, since fair trial guarantees set forth in the US Constitution did not apply extraterritorially.
Relying on these two judgments, the Bush Administration found that the US military base in Guantánamo Bay, Cuba, could have been the appropriate place of detention. The USA holds Guantánamo under perpetual lease, which gives it complete control over the base, although Cuba retains “ultimate sovereignty.” Therefore, terrorists detained in Guantánamo would not have been subject to the jurisdiction of US courts and could have been tried by military courts.
The “legal black hole” (in the words of the UK Court of Appeal in R (Abbasi and another) v. Secretary of State for Foreign Affairs 2002, § 22) created in Guantánamo – where neither US law nor international law applied – began to be challenged before US courts. In two 2004 landmark decisions in the cases Rasul v Bush and Hamdi v Rumsfeld, the Supreme Court, while accepting the power of the US government to detain enemy combatants, ruled that US courts have jurisdiction to hear petitions filed by both US citizens and foreign nationals detained in Guantánamo Bay who seek to challenge their enemy combatant status, for the USA exercised sufficient control over the military base, despite the “ultimate sovereignty” retained by Cuba.
The Bush Administration responded to these two judgments by establishing the Combatant Status Review Tribunals, consisting of military officers empowered to determine whether detainees held in Guantánamo were enemy combatants. At the same time, the Detainee Treatment Act of 2005 provided detainees with a sort of judicial review procedure against the determination made by the Combatant Status Review Tribunals, which however stripped the Supreme Court’s jurisdiction to hear such cases. Despite this provision, in 2006 the Supreme Court reasserted its jurisdiction in Hamdan v Rumsfeld and ruled that the procedure before the military commissions – empowered to try detainees held in Guantánamo – was in many respects deficient and therefore it did not comply with Art.3 common to the Geneva Conventions. The reference to Art.3, which as we have seen above constitutes the minimum standard of protection in non-international armed conflicts (Gross and Ni Aoláin 2006: 356), meant that the Supreme Court did not accept the US executive’s assertion that the war against Al Qaeda was an international armed conflict. Rather, it took the view – not entirely uncontroversial – that the conflict was of a non-international nature given that one of the parties involved was a non-state actor. The Supreme Court referred to the fair trials guarantees contained in Art.75 of AP I, outlined above, to give content to those “judicial guarantees which are recognized as indispensable by civilized peoples” mentioned by common Art.3. Although the USA did not ratify the AP I, the Supreme Court held that Art.75 reflected customary international law and was therefore applicable. As noted, those guarantees afford protection to any person in the hands of a party to an armed conflict, including unlawful combatants (Dörmann 2003).
Among the many deficiencies of the military commissions, the Supreme Court identified the possibility to admit any evidence, including hearsay or statements elicited with torture; the possibility to deny the disclosure of evidence to the defendant and his or her lawyer on grounds of national security interests, the protection of intelligence sources or classified information; and the possibility to forbid the lawyer to reveal to the defendant the content of evidence disclosed during a closed session. As a result, the procedure before the military commission was deemed not in compliance with “the judicial guarantees which are recognized as indispensable by civilized peoples” (common Art.3.1 (d)). It is clear here the influence of human rights guarantees in strengthening the protection afforded by international humanitarian law. The shortcomings of the proceeding identified by the Supreme Court are in many respects similar to those affecting the judicial review under UK legislation, as will be explained in section “Limits to the Disclosure of Evidence and Right to Defense.”
Following Hamdan, the Congress passed the 2006 Military Commissions Act, which again attempted to strip the Supreme Court’s jurisdiction, as well as forbade any defendant from invoking the Geneva Conventions as sources of rights before US courts. The final defeat for the US government arrived in 2008. In Boumediene v Bush, the Supreme Court ruled that noncitizens have a constitutional right to habeas corpus, for the US Constitution applied extraterritorially to foreigners detained in Guantánamo Bay. The Supreme Court went on to list the shortcomings of the appellate review, including the lack of power of the Court of Appeals to order the release of the detainee; the lack of power to review factual determinations made by the Combatant Status Review Tribunals; and the impossibility for the defendant to present exculpatory evidence not already presented in the first instance proceeding. In conclusion, the judicial review available to detainees could have not been considered as an adequate substitute for habeas corpus, to which detainees held in Guantánamo were constitutionally entitled.
Overall, the Supreme Court has had the merit of defending the rights of the alleged detainees held in Guantánamo against the attempts of the executive to claim the existence of a law-free zone. Nevertheless, after Boumediene many issues are still left unresolved to date (Human Rights Watch 2011). Obama’s pledge to close down the detention camp met with strong opposition in the Congress, which frustrated his initiative by passing legislation preventing the transfer of detainees from Guantánamo to the USA. The task force set up by Obama to review the detention of the remaining detainees has resulted in many of them being released. Nevertheless, dozens of such individuals have remained in detention for a long period of time due to the risk that – if returned to their home countries – they will face a risk of torture or inhumane treatment. As a consequence, they have faced a de facto continuing detention. In contrast with Obama’s administration, President Trump has seemed to be willing to keep the detention camp in Guantánamo operational.
The Supreme Court’s jurisprudence on the detention of terrorists is grounded in complex constitutional issues and ignores, regrettably, the international human rights framework which governs the detention (de Londras 2008; Duffy 2008). However, the approach taken by the Supreme Court has been pragmatically rights-oriented, resulting in an expansion of the reach of the habeas corpus instrument as a means of protection of detainees’ rights. In that respect, the extraterritorial application of the US Constitution is similar in its operation to the extraterritorial application of human rights treaties, which will be explained in section “Detention and Arrest Outside the State’s Territory.”
Detention Regime Under International Human Rights Law
As highlighted above, international human rights law applies in both peacetime and wartime.
Human rights treaties protect individuals against an arbitrary deprivation of liberty (Art.9 International Covenant on Civil and Political Rights; Art.5 European Convention on Human Rights; Art.7 American Convention on Human Rights; Art.6 African Charter on Human and Peoples’ Rights).
The relevant provisions specify that the procedure and the conditions under which a person may be deprived of liberty shall be prescribed by law. Furthermore, they set out some fundamental guarantees for those arrested or detained, including the right to be informed promptly of the reason for the arrest and of any charge against them; the right to be brought promptly before a judge and to be tried within reasonable time or to be released pending trial; and the right to challenge the lawfulness of the detention before a tribunal and to be released should the arrest or detention be deemed unlawful.
While there is no universally agreed view on what constitutes an arbitrary deprivation of liberty, the UN Working Group on Arbitrary Detention (WGAD) considers “as arbitrary those deprivations of liberty which for one reason or another are contrary to relevant international provisions laid down in the Universal Declaration of Human Rights or in the relevant international instruments ratified by States” (Fact Sheet No.26). The WGAD has elaborated on the concept of arbitrariness, finding that a deprivation of liberty is arbitrary when it falls into one of the following categories: (a) there is no legal basis justifying the detention; (b) the deprivation of liberty results from the exercise of some rights or freedoms; and (c) violations of fair trial rights are of such gravity as to give the deprivation of liberty an arbitrary character (Fact Sheet No.26).
The European Court of Human Rights (ECtHR) has approached the issue of what constitute an arbitrary deprivation of liberty on a case-by-case basis, stressing that “the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved” (Saadi v United Kingdom 2008, § 68).
As stressed at the beginning, counter-terrorism detention is mainly administrative in nature. International human rights law does not consider administrative detention as per se arbitrary. On the contrary, some forms of administrative detention are expressly allowed by human rights treaties, such as the one provided by Art.5(1)(f) of the European Convention on Human Rights (ECHR): “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” This second ground of detention, as will be explained, is often invoked by states as an attempt to justify the detention of foreign nationals who should be deported due to the suspicion of their involvement in terrorist-related activities. However, for the administrative detention not to be arbitrary, it is fundamental that effective safeguards are in place, such as the possibility to challenge the lawfulness of the detention, as consistently repeated by the WGAD with express reference to counter-terrorism detention (2012 Report).
It has been suggested that administrative detention of suspected terrorists should be considered as the third legal regime governing counter-terrorism, together with detention under international humanitarian law and criminal detention under international human rights law (Hakimi 2009).
The main problem arising in the context of counter-terrorism detention is that those very guarantees afforded to detainees started to be called into question by some states, which maintained that strict respect for some human rights provisions would have undermined their efforts in the fight against terrorism. Therefore, those states that decided not to deal with terrorism by resorting to the armed conflict paradigm claimed nevertheless that the current human rights framework regulating the detention was inadequate, advocating for more flexibility and a recalibration of human rights norms with respect to the detention of suspected terrorists.
As we will shortly see, the declaration of the state of emergency has been a way through which states have sought to adjust human rights provisions to the necessity of countering more efficiently the security threats posed by suspected terrorists.
State of Emergency and Derogations
Art.15 of the ECHR – as well as the corresponding provisions contained in other human rights treaties (with the exclusion of the African Convention) – authorizes a state party to derogate from their obligations under the Convention “in time of war or other public emergency threatening the life of the nation” and “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Art.15 – in a similar fashion to the other treaties – requires states to notify the Secretary General of the Council of Europe of the measures taken in derogation of the rights set forth in the Convention and the reasons thereof, as well as to notify when the said measures cease to apply.
The state of emergency may be proclaimed in an armed conflict or outside a situation of war. What matters is the existence of – in the words of the ECtHR in the Lawless case (1961) – “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (§ 28). The ECtHR has recognized that national authorities enjoy a wide margin of appreciation in determining the presence of a state of emergency and the scope of the derogations, since they are in “direct and continuous contact with the pressing needs of the moment” (Ireland v United Kingdom 1978, § 207). Yet the Court retains the power to review the determination made by the state in order to ensure that they did not go beyond what is strictly required by the exigencies of the situation.
Art.15 of the ECHR makes clear that no derogation is possible from some rights. Importantly for our purposes, the right to liberty is not expressly mentioned among those exceptions. Hence, provided that the substantive and procedural requirements are fulfilled, a state may lawfully derogate from this right. The same holds true under the other human rights treaties allowing for derogations.
Therefore, when a state lawfully derogates, the right to be free from arbitrary detention may be restricted (e.g., people suspected of terrorism may be kept on pre-trial detention for a period longer than the one allowed in non-emergency times or a lower standard of proof to justify the detention may be accepted). However, some forms of protection against arbitrariness must remain in place. In expanding the number of human rights from which derogations should not be permitted, the UN Human Rights Committee has recognized, in its General Comment 29 (2001), that the right to challenge the lawfulness of one’s detention cannot be fully suspended, as it constitutes an essential safeguard against the protection of non-derogable rights, including the right to be free from torture. The same view was previously taken by the Inter-American Court on Human Rights, which stressed the importance of judicial protection especially in time of emergency (Advisory Opinion on Habeas Corpus in Emergency Situations 1987).
Derogations from the ECHR have been relatively rare. In more recent times, among the Council of Europe states, only Turkey, the UK, France and Ukraine have issued derogations based on the claimed terrorist emergency. In contrast, Spain – which has experienced major terrorist attacks in 2004 – has decided to fight terrorism without resorting to emergency measures. Similarly, and less recently, Italy did not declare a state of emergency to fight against the wave of domestic terrorism that affected the country from the late 1960s until the early 1980s. This confirms that states are free to adopt different approaches in order to fight terrorism and that they may well consider ordinary legislation a sufficiently effective tool to counter those threats.
Derogations Passed by the UK
We will now turn to examine the derogations issued by the UK, which have led to interesting developments in the case law, both domestically and internationally, with respect to the detention of suspected terrorists.
The UK has had a long history of fight against terrorist threats.
Derogations were entered several times in relation to the conflict in Northern Ireland starting as early as the late 1950s. Following an escalation of violence in the 1970s caused by the continuous attacks perpetrated by the Irish Republican Army (IRA), the UK introduced a policy of internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be presented in court. In the mentioned Ireland v United Kingdom, the ECtHR ruled on the adequacy of the habeas corpus proceedings available to suspected terrorists placed in internment. According to the emergency legislation, the review of the internment was heard by an advisory committee, which did not have the power to order release. Internees were able to challenge the lawfulness of their internment before the High Court of Northern Ireland only on the basis of bad faith on the side of the police, but were prevented from alleging that the internment was not based on a reasonable suspicion against them. The Court found that the habeas corpus available to the internees did not breach Art.5(4) of the ECHR, since the derogation enacted by the UK government did not go beyond what was strictly required by the exigencies of the situation, as prescribed by Art.15 of the ECHR. In other words, the Court was satisfied that some sort of judicial review was available to the internees and accepted that, in times of emergency, the extent of that review could be reduced in order to allow the government to effectively deal with dangerous threats.
In the same context of the conflict in Northern Ireland, the Brogan and others v United Kingdom case (1988) shows how Art.5 of the ECHR regains its full scope outside a declared emergency. Since in 1984 the UK had withdrawn the derogations, one of the issues before the ECtHR was whether – in the absence of a specific derogation – the period of detention of 4 days (or longer for some applicants) to which the suspected terrorists were subjected without being brought before a judge amounted to a violation of Art.5(3) of the ECHR. The Court found the UK in breach of the provision, which requires anyone deprived of liberty to be brought “promptly” before a judge. The Court was mindful of the background situation in Northern Ireland even though there was no declaration of emergency at that time. However, it held that the review of the detention of the applicants failed to comply with the requirement of “promptness” prescribed by Art.5(3) of the ECHR.
As a reaction to the ruling, in 1988 the UK submitted a fresh derogation concerning specifically Art.5(3), which then generated Brannigan and McBride v United Kingdom (1993). The two applicants were detained, respectively, for a period of 6 and 4 days under the Prevention of Terrorism (Temporary Provisions) Act 1984 without being brought before a judge. During the proceedings, the UK government submitted that the extended period of detention was necessary to effectively counter terrorist threats, given the difficulties in interrogating terrorists and the need to avoid disclosure of intelligence sources, alleging that it had derogated from Art.5(3) to this effect. The ECtHR found that the measures passed by the UK were proportionate and that the possibility to challenge the lawfulness of the detention constituted a sufficient guarantee against abuses, considering especially that the law allowed the detainees to have access to a lawyer.
The conflict in Northern Ireland was not the only situation that the UK has decided to face by resorting to the use of derogations. In more recent times, the UK has issued derogations following the terrorist attacks that occurred on 11 September 2001 in the USA. In the wake of those events, the UK passed the Anti-terrorism, Crime and Security Act 2001. The Act contained provisions that allowed the Home Secretary to detain indefinitely and without trial those foreign nationals whom the Home Secretary himself certified to be a threat to national security due to the suspect of their involvement in international terrorism. Those foreign nationals could not have been prosecuted mainly due to the sensitivity of the intelligence evidence against them; nor could some of them have been detained with a view to deportation (a ground of detention expressly authorized by Art.5(1)(f) of the ECHR), given the risk that they could have been subjected to torture or other ill-treatment if sent back to their home countries (according to the 1996 judgment of the ECtHR in Chahal v United Kingdom). In other words, those foreign nationals were in a sort of limbo, for they could have been neither tried nor deported. Hence, to allow detention under the Act, the UK entered derogations with respect to the ECHR, as well as the International Covenant on Civil and Political Rights (ICCPR).
Predictably, as it happened with the emergency in Northern Ireland, the existence of a state of emergency justifying the derogations and the compliance of the detention under the Act with human rights provisions were challenged before UK courts. The issues were dealt with by the House of Lords in A and others v Secretary of State for the Home Department (also known as “Belmarsh case” from the name of the prison where most of the appellants were detained). In the 2004 judgment, the House of Lords – with a number of judges dissenting – accepted that the threat posed by international terrorism was sufficiently grave to justify the declaration of the state of emergency. Among the dissenting judges, Lord Hoffman assertively found that “the real threat to the life of the nation [...] comes not from terrorism but from laws such as these” (§ 97). The judicial deference of the majority toward the government’s assessment was at least in part grounded in the well-established ECtHR’s jurisprudence on the state of emergency that – as explained earlier – accorded a wide margin of appreciation to the states. However, the House of Lords refused to accede to the government’s argument that the detention measures targeting only foreign nationals and not those who were British citizens were proportionate. Under those measures, noncitizens could have been detained indefinitely and without trial, whereas citizens could not have been subjected to this type of detention. In the opinion of the Lords, the differential treatment of nationals and nonnationals did not have objective justification “since the threat presented by suspected international terrorists did not depend on their nationality or immigration status” (§ 54). As a result, the Lords found the relevant provisions of the 2001 Act contrary to Art.5 and Art.14 (prohibition of discrimination) of the ECHR.
On March 2005, the UK withdrew the derogations. The dispute did not however end with the House of Lords’ decision. The detainees applied to the ECtHR, relying on a number of grounds, including the claim that their detention amounted to inhumane and degrading treatment. In A and others v United Kingdom (2009), the Grand Chamber of the ECtHR reiterated that national authorities must be afforded a wide margin of appreciation in assessing the existence of a state of emergency. The Court clarified that domestic courts are part of the national authorities; therefore – when they have concluded that a state of emergency did exist – the ECtHR would reach a contrary conclusion only if satisfied that the national court had misinterpreted or misapplied Article 15. This is due to the fact that, in the Court’s opinion, national courts are better placed to review the evidence relating to the existence of an emergency. As for the proportionality of the detention, the ECtHR unanimously agreed with the House of Lords that the limitation of the derogation measures to non-UK nationals was disproportionate and discriminatory, rejecting the unsubstantiated claim of the UK that nonnationals posed more of a threat than nationals. Importantly, the Court dismissed the government’s claim that the detention of the applicants was pursued with a view to deportation or extradition, as allowed by Art.5(1)(f) of the ECHR, since there was no evidence that actions were being taken to that effect. On the contrary, the Court found that the applicants were detained because they were suspected of being international terrorists who posed a threat to national security. It went on stressing that “the Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. […] If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (§ 171). With this finding, the Court explicitly refused to sacrifice the right to liberty at the altar of security.
“Alternatives” to Detention
Another interesting aspect of the Belmarsh saga concerns the possibility for states to resort to measures that purport to be alternative to preventive detention without trial in the context of counter-terrorism.
The government response to the House of Lords’ ruling condemning the discriminatory detention practices was to introduce the “control orders” in the Prevention of Terrorism Act 2005 and to repeal Part 4 of the 2001 Act. The purpose of the control orders was to protect members of the public from the threat posed by individuals identified by the government as a terrorist threat, but who could have neither been prosecuted nor deported, as explained above. Taking into account the House of Lords’ concern about the discriminatory nature of the previous legislation, the 2005 Act provided that control orders could have been applied to anyone irrespective of nationality. The range of possible restrictions was very wide, including restrictions on the place of residence, on communication, on the use of certain articles, the imposition of a curfew, the requirement to surrender the passport, to allow the place of residence to be searched, to report at specified times and places, to wear specific apparatus to monitor movements or communications (also known as “tagging”) and the like. Such obligations were civil in nature, but their breach was accompanied by a criminal sanction, including detention. Control orders were issued by the Secretary of State (upon permission of the court) or by the court on application of the Secretary of State (depending on whether the intensity of the restriction would have required a derogation from Art.5 of the ECHR). Depending on their nature, control orders could have been imposed for 6 or 12 months, renewable if the conditions for their imposition persisted. People subjected to control orders had limited possibility to intervene in the proceeding during which those measures were authorized, but they could have challenged the renewal or the modification of the orders. It is clear that control orders were envisaged as flexible measures, allowing the extent of the restrictions to adapt to the degree of threat that an individual was likely to pose.
However, control orders have raised many concerns due to their impact on the rights of controlees. As noted, restrictions on communications and visitors had adverse consequences on the lives of family members of the controlees alike (Walker 2007).
In the UK, the first set of concerns was raised in relation to the issue of whether some forms of restrictions amounted to a deprivation of liberty. The importance of answering such a question lies in the fact that – should a restriction amount to a deprivation of liberty – then the controlee would have the right to challenge the lawfulness of his or her detention. That would imply that those who were released from the detention under the previous regime and then subject to control orders (as it happened, e.g., to some of the plaintiffs held in the Belmarsh prison) were in practice deprived again of their liberty.
As clarified by the ECtHR, what constitutes a deprivation of liberty is more a matter “of degree or intensity, and not one of nature or substance” (Guzzardi v Italy 1980, § 93). In other words, while confinement behind bars is a clear-cut deprivation of liberty, to qualify borderline restrictions as deprivation of liberty factors such as the type, duration, effects, and manner of implementation of the measures in question (ant their cumulative application) must be taken into account.
Recalling the Strasbourg case law, the majority of the House of Lords in Secretary of State for the Home Department v JJ and Others (2007) found that the restrictions imposed on the six applicants – who were confined to their homes for 18 h a day, obliged to remain in designated areas for the rest of the day and to inform the Home Office of any visitor, and monitored by means of electronic tags – amounted to a deprivation of liberty, since “their lives were wholly regulated by the Home Office, as prisoner’s would be” (§ 24).
Measures which are intended to work as an alternative to the traditional detention are not a peculiarity of the UK counter-terrorism regime. Australia, for example, introduced control orders in its 2005 anti-terrorism legislation borrowing from the UK model and that have been criticized on similar grounds by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (Australia: Study On Human Rights Compliance While Countering Terrorism 2006).
Limits to the Disclosure of Evidence and Right to Defense
The second set of concerns arising from the imposition of control orders as designed by the UK gives the opportunity to examine more broadly some procedural guarantees available not only to those subject to control orders but to all those deprived of liberty in the context of counter-terrorism.
Those procedural guarantees are essential components of the right to a fair trial, as set out in Art.6 of the ECHR (as well as in the other human rights treaties recalled in this chapter). However, they bear particular significance also in connection to the right to challenge the lawfulness of one’s detention. In that respect, the case law of the ECtHR has clarified that many of the procedural guarantees provided for in Art.6 apply – mutatis mutandis – to habeas corpus proceedings alike (A and others v United Kingdom). Clearly, the possibility for a detainee to effectively challenge his or her detention would be frustrated without the right to legal assistance and to have access to those evidence that are relied upon in order to justify the necessity of his or her deprivation of liberty. There is a strict correlation between the two rights, since access to evidence is a fundamental prerequisite for a lawyer to mount an effective defense and for a proceeding to be compliant with the principle of equality of arms.
In the context of counter-terrorism detention, however, the disclosure of evidence to the detainee and his or her lawyer may be problematic. Frequently, the detention of a suspected terrorist is based on the executive’s possession of confidential information obtained through the investigative activity of the intelligence service. Hence, governments often claim that a disclosure of such information to the defendant may be likely to endanger national security. When this happens, the rights of the defendant and the state’s interest to protect national security are in tension with each other.
The ECtHR has consistently stressed that the entitlement to disclosure is not an absolute right, since there may be countervailing public interests, such as national security or the need to keep secret certain police methods of investigation, which may justify restrictions to the rights of the defendant. However, these procedural rights cannot be restricted to such an extent as to render any attempt to challenge the government’s assertions impossible. The necessity to strike a balance between these two competing interests is of utmost importance in cases of counter-terrorism, because “especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident” (Malone v United Kingdom 1984, § 67). For this reason, the ECtHR has clarified that “there are techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice” (Chahal v United Kingdom 1996, § 131).
The function of the special advocates can be seen as one of those attempts aimed at ensuring the procedural rights of the defendant while at the same time preventing a full disclosure of confidential information that may threaten national security. Generally speaking, special advocates are lawyers in possession of a special security clearance which allow them to have access to sensitive information in order to represent the interests of the defendant, in particular in those closed proceedings where the defendant has been excluded (Murphy 2013). Although they act in the interest of the party, they differ from (and normally do not substitute) the lawyer chosen by the party.
A number of countries resort to special advocates in cases involving the protection of national security. For example, in Canada a special advocate can be appointed in immigration proceedings where a security certificate is issued against an individual who poses a threat to national security and is therefore hold in detention. In New Zealand special advocates are employed in similar circumstances.
In the UK, special advocates were introduced following the ECtHR ruling in Chahal, in which judges referred expressly to the Canadian model as a possible technique to balance national security and disclosure to the defendant. The post-9/11 anti-terrorism legislation allowed the possibility to employ special advocates. Nonetheless, concerns about the sufficiency of the safeguards provided by the appointment of a special advocate arose in the context of both the 2001 Act and the 2005 Act.
In A and others v United Kingdom, the ECtHR had the opportunity to delve into more detail regarding the compatibility of the use of special advocates with the Convention and, namely, with Art.5(4). While reiterating that special advocates may constitute in general an effective technique to balance security interests and the rights of the defendant, the Court went on to clarify that in practice a case-by-case assessment is required. In cases “where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. […] Where, however, the open material consisted purely of general assertions and [the court’s] decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5(4) would not be satisfied” (§ 220). It follows that the mere appointment of a special advocate would not be sufficient to warrant compliance with the procedural guarantees to which the detainee is entitled in habeas corpus proceedings. The Court then proceeded with a careful assessment of the positions of the applicants, finding a violation of Art.5 (4) with respect to some of them.
Shortly after the judgment, the House of Lords adopted the Strasbourg court’s reasoning in Secretary of State for the Home Department v AF (2009) and found that the appointment of special advocates in the proceedings involving the imposition of control orders against the applicants was not compliant with the Convention. According to the 2005 Act, a special advocate would have supported the controlee’s interests during closed hearings from where the controlee and his or her lawyer were excluded. Once the special advocate had seen the secret material, he could have not communicated with the controlee. In finding a violation of the Convention, the House of Lords held that “the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to these allegations” (§ 59). In other words, provided that the controlee is made aware of the “gist” of the case against him, the proceeding can be deemed fair notwithstanding that the controlee is not provided with all the details of the evidence forming the basis of the allegations.
In the UK, control orders were eventually abolished in 2011 and replaced with the “Terrorism Prevention and Investigation Measures” (TPIMs), which purported to respond to the concerns raised under the previous regime. Nonetheless, TPIMs have not been shielded from criticism, since the differences from the previous control order system have been considered “cosmetic, rather than real” (Hunt 2014: 289).
Detention and Arrest Outside the State’s Territory
The main human rights treaties contain provisions aiming at preventing states from seeking to avoid their duty to guarantee human rights by claiming that their conduct occurred outside their territory. Generally, extraterritoriality does not concern only issues relating to deprivation of liberty, but certainly it plays an important role with regard to the right to liberty and the detention of suspected terrorist. As a matter of fact, given the transnational character of terrorism and the global reach of the more recent war against terror, suspected terrorists are very often captured and held in detention by states operating outside their territory and in the territory of another state. The case of the unlawful combatants held in Guantánamo constitutes the most well-known example.
Art.1 of the ECHR provides that states party “shall secure to everyone within their jurisdiction the rights and freedoms” defined in the Convention. The ICCPR (Art.2) and the American Convention on Human Rights (Art.1) contain similar provisions.
The meaning of jurisdiction under the mentioned treaties is not necessarily limited to the territorial jurisdiction of states. Despite some initial hesitation of the ECtHR – which in the Banković case (2001) held that the Convention applies only within the “espace juridique” (legal space) of the states who are parties to it – the case law to date has clarified that the state jurisdiction extends to any region or area where states exercise “effective control” (Al-Skeini and others v United Kingdom 2011). Thus, provided that a state exercises effective control, the jurisdiction extends beyond the state’s territory.
The Court has been called to adjudicate upon the detention of suspected terrorists by states parties to the Convention operating abroad. In Al-Jedda v United Kingdom (2011), the applicant was arrested and detained in a detention center run by British forces in Basra, Iraq, from 2004 to 2007. He was suspected of recruiting terrorists and conspiring with members of a terrorist cell to smuggle explosives to be used against the Coalition Forces. The Grand Chamber rejected the claim of the government that the detention of the applicant was attributable to the UN, which authorized the deployment of the Coalition Forces in Iraq and held instead that the applicant was “within the authority and control” (§ 85) of the British forces that operated the detention center where he was detained. Therefore, the UK had jurisdiction over the applicant. The Grand Chamber eventually found the UK in violation of Art.5(1) of the ECHR, since at no point during the detention the UK intended to bring charges against the applicant, who was instead held for imperative security reasons. In ruling against the UK, the Grand Chamber rejected the argument that the security detention was prescribed by the UN Security Council’s resolutions authorizing the Coalition Forces to maintain security in Iraq; in any event, the Grand Chamber emphasized that Security Council’s resolutions can never be interpreted as imposing an obligation to breach fundamental rights, whose respect is one of the pillars of the UN’s mandate.
The Court has also ruled on the applicability of the Convention when a state party has carried out an arrest of a suspected terrorist on the territory of another state. In Öcalan v Turkey (2003), the applicant was the leader of the Kurdistan Workers’ Party (PKK), listed as terrorist organization by Turkey and other countries. He was arrested by Turkish security forces in Kenya, where he had sought refuge, and was then brought to a detention center in Turkey. The applicant claimed that he had been abducted by Turkish forces operating outside their territory – without any request for his extradition submitted to Kenya – and therefore his arrest and detention were not “in accordance with a procedure prescribed by law” (Art.5(1) of the ECHR). In dismissing the applicant’s argument on this point of law, the Court found that the arrest and detention did not violate Art.5(1), since Turkey had acted in cooperation with Kenyan authorities, without breaching the country’s sovereignty. Although the claim was dismissed, it is relevant that the Court ruled incidentally about the extraterritorial reach of the ECHR, where it emphasized that from the moment the applicant had been handed over by the Kenyan officials to the Turkish officials, he “was under effective Turkish authority and was therefore brought within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory” (§ 93).
The two cases summarized above are just two examples that show that states cannot circumvent their obligations to guarantee the right not to be arbitrarily deprived of one’s liberty by acting outside their territory. As clearly put by the UN Human Rights Committee with regard to the extraterritorial application of the ICCPR, “it would be unconscionable to so interpret the responsibility under Article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory” (Lopez Burgos v Uruguay 1981, § 12.3).
Whereas, as recalled above, the US Supreme Court’s decisions regarding the possibility for unlawful combatants to avail themselves of the right to habeas corpus outside the US territory do not explicitly refer to the international human rights legal framework, nonetheless the rationale behind them was to guarantee the constitutional rights of the detainees extraterritorially, in a similar fashion to those provisions allowing for the extraterritorial application of human rights.
The climate of fear triggered by the spread of international terrorism across the world has generated the conviction in many governments that the pursuit of security against terrorist threats necessarily entails a corresponding reduction in the level of protection afforded by rights. The argument that a “new” balance must be struck between security and rights has been repeatedly put forward by politicians in the aftermath of 9/11 (Waldron 2003) and has shaped the legal response to counter-terrorism.
The adverse impact on individuals’ rights in adopting such an argument is chiefly evident in the context of counter-terrorism detention. The idea that security must weigh heavier than strict respect for the rights of suspected terrorists has prompted states to undermine well-established guarantees afforded to detainees by both international humanitarian law and human rights law. The two regimes, as highlighted several times, are interdependent insofar as human rights law provides a baseline protection in armed conflicts alike. While the rationale of preventing future harm informs to a greater extent international humanitarian law and is not strange to human rights law, in either case the real protection against arbitrariness of detention is provided by those procedural guarantees afforded to detainees and that cannot be circumvented by states in the name of security against the threat posed by terrorism. This is why – as the case law recalled above demonstrates – the right to challenge the lawfulness of the detention can suffer some limitations in case of emergency, but not up to the point of being rendered meaningless or impossible to exercise.
From a human rights perspective, the attempts to decrease the legal protection afforded to suspected terrorists have generated the underlying concern that their detention does not respond anymore to a logic of punishment for the crimes committed, but rather to an overarching logic of preemption and suspect, which does not necessarily conceive the trial as the natural place where ascertaining whether the evidence is enough substantiated as to warrant a conviction beyond reasonable doubt. For this reason, counter-terrorism detention risks bringing the traditional connection between detention and trial to the vanishing point. The system of control orders and their successor show even more clearly this pattern (Zedner 2007). At semantic level, the label “terrorist” is intrinsically preemptive, since the executive often determines a priori who is or is not a terrorist independently of criminal processes (McCulloch and Pickering 2009: 630), as the outlined detention practices confirm.
As the US and the UK experience demonstrates, on several occasions this logic of preemption and suspect has targeted noncitizens belonging to certain religious groups (particularly Muslims) through the introduction of detention practices that have been considered discriminatory by domestic and international courts. This convincingly illustrates that balancing security and rights becomes even more troublesome when security for all is (allegedly) enhanced at the expense of the rights of a few (Waldron 2003: 200–204; Dworkin 2002; Luban 2009: 243–245).
While those shortcomings affecting counter-terrorism detention are the product of the climate of panic and fear, as argued at the beginning, on the other hand, the decisions of domestic and international courts have demonstrated that judges are more immune to the historical contingency marked by the perception of a constant emergency (Bianchi 2010: 191). Despite some degree of deference toward the executive’s assessment, the judiciary has had the merit of containing the executive’s attempts to undermine the rights of suspected detainees held in detention, by refusing to water down the core of those procedural rights that constitute the very safeguards against arbitrariness of the detention.
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