‘War on terror’ Detentions and IHL
- Widespread detention of individuals during ‘war on terror’
- Historical anomaly Guantanamo Bay ‘legal and political disaster’ of US
detention policy
o More than 100,000 who have been and continue to be detained w/o
charge by US since 2001 (in Guantanamo, CIA secret prisons in
Afghanistan, Iraq and beyond)
- Issues of interplay of legal regimes
Lawful basis for detention
- 2001 US Military Order “Detention, Treatment, and Trial of certain Non-Citizens
in the War Against Terrorism’ – President Bush signed
- Broad-reaching right to detain ‘enemy combatants’ incl. those that ‘were part of,
or substantially supported Taliban or Al-Qaida forces or associated forces’
- Unclear who may be detained – which groups? Other than T/AQ? And re
individuals what mix of conditions that are necessary or sufficient to justify
the detention of a particular person?
- US continues to justify this policy as lawful under regime applicable to ‘law of
war detentions’ (IHL provides lawful basis for detention of certain categories of
individuals in context with IAC)
o Those detained in Afghanistan and Iraq probably fulfill this nexus
requirement
o But – many individuals detained in various locations around the global w/
no apparent connection to recognized ACs reason to doubt whether in
relation to an AC as opposed to the broader fight against international
terrorism
- IHL: explicitly allows detention in cases of IAC, and implicitly for NIAC ( A NIAC
does not provide an explicit power to detain, though it has been argued with some force that this
power may be inherent in the nature of armed conflict – just as parties can use force, so must
they be able to detain as an alternative (Pejic, ‘Conflict Classification’, p.10)
- Members of armed forces (incl. Taliban fighters) can be detained until end of
conflict, entitled to POW status.
- Civilians may also if it is an ‘absolute necessity’ or for ‘imperative reasons of
security’ ‘minimum legal standard that should inform internment decisions in
all situations of violence, including NIACS’.
- Individuals who have been subject to this form of detention?
o 1) ‘Leaders, operatives, and facilitators involved in terrorist plots against
US targets’
o 2) others who ‘may not have been directly involved in terrorist plots
against US targets’ but who are believed to have had ‘organizational roles
within al-Qaida or associated terrorist organization (i.e. logistical support,
facilitators who move money/personnel)
Technically, those directly participating in hostilities (DPH) could
be detained in either conflict – BUT – doubtful in relation to those
who offer looser support to a broad range of groups whether
there are imperative reasons of security that genuinely require the
detention of these individuals
, o 3) Taliban leaders and members of anti-Coalition militia groups
o 4) low-level foreign fighters who have ‘varying degrees of connection to al
Qaida, the Taliban, or associated groups, but who lacked a significant
leadership or other specialized role’,
o 5) ‘miscellaneous others’ who do not fit into any of the groups.
Can only speculate what this encompasses – perhaps assessment
of risk posed necessity of detention based on individual’s conduct?
Detainee report indicates that more than half detained on grounds
unrelated to their personal conduct though!!
Remote associations w/ international terrorism
- Imperative reasons of security: assessment made on on-going basis, might no
longer be compelling need for detention (having been in a member of an above
prohibited group is insufficient, just relevant for assessment)
- IHL does not allow for detention for purposes of interrogation, intelligence-
gathering, nor for punishment (it is not an alternative to criminal law in
situations where prosecution isn’t practicable or feasible)
o Security acceptable as a basis , but not ‘US interests’ or ‘foreign policy’
considerations
- Detention of many captured after 9/11 may well be justified under IHL but
uncertainties as a result of US’ refusal to operate within and consistently apply
established categories of IHL.
Procedural safeguards
- Many detained post 9/11 w/o legal safeguards (e.g. Guantanamo Bay and ERP)
- Hard-won litigation acknowledging right of Guantanamo detainees to habeus
corpus
- Many detainees are held elsewhere w/o due process or meaningful review of
lawfulness of their detention (incl. in Afghanistan, where this right has
consistently been denied by the Administration and by US courts) (Baghram
litigation)
- No explicit rules in IHL regarding safeguards to which detainees are entitled in
NIACs
o one view: no rules of IHL, so HR law continues to apply
o other view: gap should be filled by principles of IHL, applies by analogy
o With both views, certain minimum standards common to both fields of
law must apply.
ICRC’s ‘Minimum Guidelines’ suggest this must include reasons,
effective opportunity to challenge (which must include access to
evidence against them), and periodic review (of continued
existence of the imperative reasons)
End of conflict and detention
- When AC comes to an end the lawful basis for detention under IHL also ends, and
so detention must end with it another lawful basis must be provided
- If conflict shifts from IAC NIAC (Afghanistan and Iraq for example) then
different legal considerations apply
, - ICRC suggests minimum standard of ‘imperative reasons of security’ may still
justify detention, and the relevant minimum safeguards continue to apply’
- Others: greater role for HR law in NIAC settings (where less prescriptive rules of
IHL apply)
- When AC ceases, undoubtedly HRL applies (Parliamentary Assembly of the
Council of Europe (PACE) confirmed this ‘since IAC in Afghanistan ceased,
however, IHRL standards have applied in the normal fashion’
- Despite ending of combat in Afghanistan and Iraq, this has had no consequences
for the ending of detention – US Defence Secretary Leon E. Panetta has
maintained right to continue to hold enemy detainees in Afghanistan ‘for the
duration of hostilities’ (though he announced US intention to end its combat
mission there)
- endless battle
Liberty and detention:
- Routinely implicated through counter-terrorism measures (administrative,
preventative or pre-trial detention, compulsory questioning of suspects or
others, denial of bail and remand, control orders, etc)
- Starting point: any deprivation of liberty must be lawful.
- 2 approaches to permissible grounds in IHRL law:
o 1) ECHR – lists permissible grounds of detention (e.g. pursuant to
criminal process or to deportation)
o 2) ICCPR – prohibits ‘arbitrary’ detention
- Example: can administrative detention on ‘security’ grounds be justified in either
of these schemes? Or detention for purposes of intelligence-gathering?
- HR courts focus on whether procedural safeguards in detention have been met,
rather than whether it is per se unlawful to detain people on security grounds
o w/o intention to deport them or any suspicion of a crime having been or
being committed, doubtful that it is lawful under IHRL
- if persons are suspected of involvement in terrorism and then detained pursuant
to criminal law framework right to ‘trial within a reasonable time or to
release’ pending trial (Art.9(3) ICCPR, Art. 7(5) ACHR, and 5(3) ECHR)
- some flexibility offered to states by HR bodies (e.g. to detain persons pre-trial for
longer than would normally be permitted, in response to the challenges of
combating terrorism) this is not unlimited
o detention pending trial ≠norm = exception! (e.g. where necessary to
protect society and investigation of offence)
- w/o determining need for pre-trial detention on a case-by case basis can
conflict w/ right to liberty and jeopardize presumption of innocence
- Because detention is an exception should be strictly construed
o Even w/ lawful grounds of detention (e.g. pursuant to lawful deportation)
it should only be used where neccessary and less onerous alternatives are
not available1
1
Office of the United Nations High Commissioner for Refugees, UNHCR’s Guidelines on Applicable Criteria and
Standards Relating to the Detention of Asylum Seekers, February 1999; Saadi v. The United Kingdom [GC],
Appl. No. 13229/03, ECHR 2008 at para. 74; Directive 2008/115 of the European Parliament and of the Council
of 18 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying
Third-Country Nationals, 2008 OJ (L 348) 98.
, - Procedural safeguards must be met for any type of detention including:
prohibition on incommunicado detention, access to a lawyer, to judicial review of
the lawfulness of detention and to have a meaningful opportunity to challenge
such lawfulness (implying certain basic due process guarantees), as well as
ensuring effective training of personnel and monitoring of places of detention.
o Courts have often called on states to account on necessity of detaining w/
o judicial oversight2
- In the event of a national emergency leading to derogation particular
flexibility
o Right to liberty is not a non-derogable right! certain states have
derogated from HR obligs. to detain persons perceived as posing a
terrorist threat, other than pursuant to normal criminal procedure
o Derogation can foreshadow ‘preventative’ or ‘administrative’ detention
(which may be inconsistent w/ lawful bases for detention in HR treaties)
o Detention must still be necessary and proportionate to the emergency.
o Certain core aspects of right to liberty remain protected at all times
o Detention cannot be arbitrary and prohibition on ‘unacknowledged
detention’ and judicial guarantees = non derogable
o Prohibition on prolonged arbitrary deprivation of liberty = jus cogens
Restricting Liberty in liberty’s name: preventative detention and control orders
Detention:
- Broad reaching indefinite detention of persons on basis of ‘terrorism’ = common
practice in many parts of the world
- Since 9/11 widespread
- New Guantanamo-esque ‘black holes’ have arisen elsewhere notorious CIA
‘black site’ detention centres have been closed but more recent allegations of
individuals being abducted and transferred to other states but subject to US
payments and w/ US involvement.
- Creative use of immigration laws and US Patriot Act ( short for: Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (!!!)) as bases for prolonged detention of many
within the US
- US not the only state
o UK: Anti-Terrorism, Crime and Security Act 2001 permitted long-term
detention under immigration laws of persons the Home Secretary
suspected of being terrorists, members of a terrorist organisation, or
otherwise linked to terrorism, where there was neither evidence to
prosecute nor the possibility of deportation = scheme of ‘potentially
indefinite detention’ rejected by courts as violation of rights to liberty
and to non-discrimination (revoked) (A & others)
o Sri Lanka: Prevention of Terrorism Act 1978 (criticized for permitting
prolonged incommunicado detention) suspended prior to 9/11, but
2
The ECHR showed the flexibility is not limitless and even in situations where the individual’s activities were
linked to a terrorist threat twenty days’ detention without judicial oversight was held unnecessary and a
violation of Article 5. Sarikaya v. Turkey, Appl. No. 36115/97, Judgment, ECtHR, 22 April 2004
- Widespread detention of individuals during ‘war on terror’
- Historical anomaly Guantanamo Bay ‘legal and political disaster’ of US
detention policy
o More than 100,000 who have been and continue to be detained w/o
charge by US since 2001 (in Guantanamo, CIA secret prisons in
Afghanistan, Iraq and beyond)
- Issues of interplay of legal regimes
Lawful basis for detention
- 2001 US Military Order “Detention, Treatment, and Trial of certain Non-Citizens
in the War Against Terrorism’ – President Bush signed
- Broad-reaching right to detain ‘enemy combatants’ incl. those that ‘were part of,
or substantially supported Taliban or Al-Qaida forces or associated forces’
- Unclear who may be detained – which groups? Other than T/AQ? And re
individuals what mix of conditions that are necessary or sufficient to justify
the detention of a particular person?
- US continues to justify this policy as lawful under regime applicable to ‘law of
war detentions’ (IHL provides lawful basis for detention of certain categories of
individuals in context with IAC)
o Those detained in Afghanistan and Iraq probably fulfill this nexus
requirement
o But – many individuals detained in various locations around the global w/
no apparent connection to recognized ACs reason to doubt whether in
relation to an AC as opposed to the broader fight against international
terrorism
- IHL: explicitly allows detention in cases of IAC, and implicitly for NIAC ( A NIAC
does not provide an explicit power to detain, though it has been argued with some force that this
power may be inherent in the nature of armed conflict – just as parties can use force, so must
they be able to detain as an alternative (Pejic, ‘Conflict Classification’, p.10)
- Members of armed forces (incl. Taliban fighters) can be detained until end of
conflict, entitled to POW status.
- Civilians may also if it is an ‘absolute necessity’ or for ‘imperative reasons of
security’ ‘minimum legal standard that should inform internment decisions in
all situations of violence, including NIACS’.
- Individuals who have been subject to this form of detention?
o 1) ‘Leaders, operatives, and facilitators involved in terrorist plots against
US targets’
o 2) others who ‘may not have been directly involved in terrorist plots
against US targets’ but who are believed to have had ‘organizational roles
within al-Qaida or associated terrorist organization (i.e. logistical support,
facilitators who move money/personnel)
Technically, those directly participating in hostilities (DPH) could
be detained in either conflict – BUT – doubtful in relation to those
who offer looser support to a broad range of groups whether
there are imperative reasons of security that genuinely require the
detention of these individuals
, o 3) Taliban leaders and members of anti-Coalition militia groups
o 4) low-level foreign fighters who have ‘varying degrees of connection to al
Qaida, the Taliban, or associated groups, but who lacked a significant
leadership or other specialized role’,
o 5) ‘miscellaneous others’ who do not fit into any of the groups.
Can only speculate what this encompasses – perhaps assessment
of risk posed necessity of detention based on individual’s conduct?
Detainee report indicates that more than half detained on grounds
unrelated to their personal conduct though!!
Remote associations w/ international terrorism
- Imperative reasons of security: assessment made on on-going basis, might no
longer be compelling need for detention (having been in a member of an above
prohibited group is insufficient, just relevant for assessment)
- IHL does not allow for detention for purposes of interrogation, intelligence-
gathering, nor for punishment (it is not an alternative to criminal law in
situations where prosecution isn’t practicable or feasible)
o Security acceptable as a basis , but not ‘US interests’ or ‘foreign policy’
considerations
- Detention of many captured after 9/11 may well be justified under IHL but
uncertainties as a result of US’ refusal to operate within and consistently apply
established categories of IHL.
Procedural safeguards
- Many detained post 9/11 w/o legal safeguards (e.g. Guantanamo Bay and ERP)
- Hard-won litigation acknowledging right of Guantanamo detainees to habeus
corpus
- Many detainees are held elsewhere w/o due process or meaningful review of
lawfulness of their detention (incl. in Afghanistan, where this right has
consistently been denied by the Administration and by US courts) (Baghram
litigation)
- No explicit rules in IHL regarding safeguards to which detainees are entitled in
NIACs
o one view: no rules of IHL, so HR law continues to apply
o other view: gap should be filled by principles of IHL, applies by analogy
o With both views, certain minimum standards common to both fields of
law must apply.
ICRC’s ‘Minimum Guidelines’ suggest this must include reasons,
effective opportunity to challenge (which must include access to
evidence against them), and periodic review (of continued
existence of the imperative reasons)
End of conflict and detention
- When AC comes to an end the lawful basis for detention under IHL also ends, and
so detention must end with it another lawful basis must be provided
- If conflict shifts from IAC NIAC (Afghanistan and Iraq for example) then
different legal considerations apply
, - ICRC suggests minimum standard of ‘imperative reasons of security’ may still
justify detention, and the relevant minimum safeguards continue to apply’
- Others: greater role for HR law in NIAC settings (where less prescriptive rules of
IHL apply)
- When AC ceases, undoubtedly HRL applies (Parliamentary Assembly of the
Council of Europe (PACE) confirmed this ‘since IAC in Afghanistan ceased,
however, IHRL standards have applied in the normal fashion’
- Despite ending of combat in Afghanistan and Iraq, this has had no consequences
for the ending of detention – US Defence Secretary Leon E. Panetta has
maintained right to continue to hold enemy detainees in Afghanistan ‘for the
duration of hostilities’ (though he announced US intention to end its combat
mission there)
- endless battle
Liberty and detention:
- Routinely implicated through counter-terrorism measures (administrative,
preventative or pre-trial detention, compulsory questioning of suspects or
others, denial of bail and remand, control orders, etc)
- Starting point: any deprivation of liberty must be lawful.
- 2 approaches to permissible grounds in IHRL law:
o 1) ECHR – lists permissible grounds of detention (e.g. pursuant to
criminal process or to deportation)
o 2) ICCPR – prohibits ‘arbitrary’ detention
- Example: can administrative detention on ‘security’ grounds be justified in either
of these schemes? Or detention for purposes of intelligence-gathering?
- HR courts focus on whether procedural safeguards in detention have been met,
rather than whether it is per se unlawful to detain people on security grounds
o w/o intention to deport them or any suspicion of a crime having been or
being committed, doubtful that it is lawful under IHRL
- if persons are suspected of involvement in terrorism and then detained pursuant
to criminal law framework right to ‘trial within a reasonable time or to
release’ pending trial (Art.9(3) ICCPR, Art. 7(5) ACHR, and 5(3) ECHR)
- some flexibility offered to states by HR bodies (e.g. to detain persons pre-trial for
longer than would normally be permitted, in response to the challenges of
combating terrorism) this is not unlimited
o detention pending trial ≠norm = exception! (e.g. where necessary to
protect society and investigation of offence)
- w/o determining need for pre-trial detention on a case-by case basis can
conflict w/ right to liberty and jeopardize presumption of innocence
- Because detention is an exception should be strictly construed
o Even w/ lawful grounds of detention (e.g. pursuant to lawful deportation)
it should only be used where neccessary and less onerous alternatives are
not available1
1
Office of the United Nations High Commissioner for Refugees, UNHCR’s Guidelines on Applicable Criteria and
Standards Relating to the Detention of Asylum Seekers, February 1999; Saadi v. The United Kingdom [GC],
Appl. No. 13229/03, ECHR 2008 at para. 74; Directive 2008/115 of the European Parliament and of the Council
of 18 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying
Third-Country Nationals, 2008 OJ (L 348) 98.
, - Procedural safeguards must be met for any type of detention including:
prohibition on incommunicado detention, access to a lawyer, to judicial review of
the lawfulness of detention and to have a meaningful opportunity to challenge
such lawfulness (implying certain basic due process guarantees), as well as
ensuring effective training of personnel and monitoring of places of detention.
o Courts have often called on states to account on necessity of detaining w/
o judicial oversight2
- In the event of a national emergency leading to derogation particular
flexibility
o Right to liberty is not a non-derogable right! certain states have
derogated from HR obligs. to detain persons perceived as posing a
terrorist threat, other than pursuant to normal criminal procedure
o Derogation can foreshadow ‘preventative’ or ‘administrative’ detention
(which may be inconsistent w/ lawful bases for detention in HR treaties)
o Detention must still be necessary and proportionate to the emergency.
o Certain core aspects of right to liberty remain protected at all times
o Detention cannot be arbitrary and prohibition on ‘unacknowledged
detention’ and judicial guarantees = non derogable
o Prohibition on prolonged arbitrary deprivation of liberty = jus cogens
Restricting Liberty in liberty’s name: preventative detention and control orders
Detention:
- Broad reaching indefinite detention of persons on basis of ‘terrorism’ = common
practice in many parts of the world
- Since 9/11 widespread
- New Guantanamo-esque ‘black holes’ have arisen elsewhere notorious CIA
‘black site’ detention centres have been closed but more recent allegations of
individuals being abducted and transferred to other states but subject to US
payments and w/ US involvement.
- Creative use of immigration laws and US Patriot Act ( short for: Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (!!!)) as bases for prolonged detention of many
within the US
- US not the only state
o UK: Anti-Terrorism, Crime and Security Act 2001 permitted long-term
detention under immigration laws of persons the Home Secretary
suspected of being terrorists, members of a terrorist organisation, or
otherwise linked to terrorism, where there was neither evidence to
prosecute nor the possibility of deportation = scheme of ‘potentially
indefinite detention’ rejected by courts as violation of rights to liberty
and to non-discrimination (revoked) (A & others)
o Sri Lanka: Prevention of Terrorism Act 1978 (criticized for permitting
prolonged incommunicado detention) suspended prior to 9/11, but
2
The ECHR showed the flexibility is not limitless and even in situations where the individual’s activities were
linked to a terrorist threat twenty days’ detention without judicial oversight was held unnecessary and a
violation of Article 5. Sarikaya v. Turkey, Appl. No. 36115/97, Judgment, ECtHR, 22 April 2004
