Counter-Terrorism Detention in Wartime and Emergency

Abstract

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.