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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part III Counter-terrorism In Practice, 18 Detention as a Response to Terrorism

Nigel S Rodley

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 17 January 2019

Subject(s):
Detention — Terrorism — Armed conflict, international — Erga omnes obligations

(p. 457) 18  Detention as a Response to Terrorism

1.  Introduction

When societies or their governments have confronted perceived threats to their security, the typical reaction has been to eliminate the threat by removing those thought to represent it. Historically, the methods of removal have been deprivation of life, exile, or deprivation of liberty. As formal measures, the first two of these have gradually fallen into disuse, albeit summary killings continue to take place surreptitiously, and the judicial death penalty is still retained in some societies despite a rapid decline in the last half century. Also many refugees can be considered as de facto exiles.

Detention has been the main modern measure of choice. When effected in pursuance of the administration of criminal justice, it is generally considered to be legitimate. This is certainly the case in respect of sentences proportional to the offence handed down by an independent court after a fair trial for a criminal offence consistent with respect for human rights. The same is true for pre-trial detention ordered by a court for such purposes as avoidance of further crime, prevention of interference with the evidence or witnesses, or simply to secure appearance of the defendant at trial. Even brief periods of arrest at the initiative of the executive (law enforcement) authority for purposes of questioning or investigation, or because the person has been caught in the act are, subject to certain qualifications to be addressed below, generally considered acceptable. Some legal systems call such detention provisional or preventative detention.

Even some other forms of administrative detention, subject to independent, usually judicial, oversight, may be held to be reasonable, such as detention on public or (p. 458) mental health grounds to prevent serious harm to others or the person detained, or as a necessary means to effect deportation or extradition.

A form of administrative detention, that is rightly controversial, is what will here be called administrative internment.1 Here we are talking about deprivation of liberty for purposes similar to those the criminal law is aimed at achieving (other than punishment), but without a judicial process that presumes innocence and only convicts people on the basis of evidence ‘beyond reasonable doubt’.2 In other words, the aim is to remove the perceived threat and/or to obtain information without the discipline of a criminal trial process, using means that, while not intended to be a sanction, to those detained and their families appear to be indistinguishable from the typical criminal sanction. Also, the propensity for error is correspondingly higher, as vividly evidenced by information now available about many of those detained at Guantánamo Bay.3

The picture becomes more complicated when a state seeks at the same time to use administrative internment and engage in (a form of) criminal justice process. For example, the response of the US to the 11 September 2001 (9/11) atrocities of al Qaeda, as symbolized by the detentions at the US Naval Station at Guantánamo Bay, Cuba, has sought to facilitate intelligence gathering and prevention of future harm, while at the same time not excluding some form of criminal accountability. As a result not only has the administrative internment been challenged, domestically and internationally, but so have the special processes established for meting out criminal justice, notably the use of special military commissions.4 These procedures have been necessitated, not least by the very fact of (prolonged) administrative internment, sometimes exacerbated by other abusive treatment attendant on the detention/interrogation process, as well as by the claimed need to maintain certain sources confidential. These factors call into question the possibility of a credible fair trial under national, as well as international, standards. In other words, the US has sought to have its intelligence and information cake, while eating its criminal justice one.

(p. 459) From the perspective of public international law, analysis must contend with the further complexity of identifying what aspect of the law is applicable. Normally one would look to the international law of human rights to assess whether or not a given detention is legitimate or otherwise. In particular, this would involve the law relating to arbitrary detention, and the liberty and security of the person. However, in times of armed conflict a branch of the law, generally known as international humanitarian law (IHL), aims to regulate acts committed in connection with the conflict.5

The question then arises as to whether or not a particular situation characterized by terrorism and counter-terrorist measures represents a situation of armed conflict that is subject to the strictures of IHL. If it is not, it will be subject to international human rights law (IHRL). If it is, it will, by definition, be subject to IHL. The further question then is whether the applicability of IHL excludes the applicability of IHRL. As will be seen, the overwhelmingly predominant view is that it does not. This answer, in turn, begs the question as to what rules from one or the other system are the ones that determine the relevant legal issues arising; that is, for our purposes, the legitimacy of a particular mode of detention.

The bulk of the present chapter will look at modes of detention and seek to identify which rule from which branch of the law may be said to apply. However, a first foray into the relationship between the two branches of the law will facilitate the later analysis.

2.  International Human Rights and Humanitarian Law

The idea that the writ of IHRL stops at the frontiers of an armed conflict situation has a certain conceptual plausibility. After all, the paradigm context that gave rise to the notion of human rights is that of the all-powerful, stable modern state before which individual autonomy can be set at nought. Human rights, in this conception, is the body of principles that mediate the relationship between the state and those subject to its power. IHRL is the body of public international law that gives legal normative force to human rights principles. The rights-holder is the individual, the duty-bearer is the state.

This paradigm is in stark contrast to that which characterizes situations of armed conflict. In this situation, it is precisely power that is the subject of contention. Far from enjoying uncontested, irresistible power that can trump individual will, the parties to a conflict are typically fighting to maintain or establish the power that human rights norms will then aim to restrain.

(p. 460) However, even if power is the prize sought by the parties to an armed conflict, it has long been understood that the deployment of armed force, itself an exercise of a certain kind of power, should not be unrestrained. For example, its targets should be combatants, not non-combatants, and its methods should be those that do not cause unnecessary suffering. Such fundamental principles are elucidated by specific rules. These are the rules of IHL.

It is easy enough to allow the paradigms to (mis)lead us into thinking that the fundamental difference between the situations characterized by the two paradigms suggest the mutual exclusivity of the two fields of law. In fact, the IHL paradigm is essentially that of the battlefield in an inter-state conflict. Yet even in such a conflict, the guns will be silent over much of the contending jurisdictions for most of the time. The authorities of the parties will probably be able to exercise effective power over substantial populations, both their own, and those over whom the contest of arms has given them control.

What is true for inter-state conflict is arguably even truer for intra-state conflict. The classic civil war situation, exemplified by the Spanish Civil War 1936–1939, with organized armed forces fighting over population and territory, is very much the exception. Much more typical is a low intensity conflict, with non-governmental forces seeking to sow terror, or otherwise destabilize the governmental party to achieve an aim that may not even be the seizure of state power. In such situations, for most of the time and most of the population, the social and political reality will be substantially closer to that of the human rights paradigm.

Before trying to elicit the implications of these complexities, one further complexity needs to be noted. There is the relatively new phenomenon of the sort of transnational terrorism exemplified by the atrocities committed by al Qaeda on 9/11.6 There is controversy as to whether such activities and measures taken to counter or prevent them should be considered as falling within the armed conflict paradigm and, if so, whether it involves IHL relevant to international armed conflict, or IHL relevant to non-international armed conflict. To the extent that there is an armed conflict at all, it certainly does not involve, at least directly, a clash between state armies or even armies at all, which is what the IHL of international armed conflict is designed to regulate. Nor does it easily fit the model of the internal armed conflict that the IHL of non-international armed conflict was designed to deal with.

In fact, the confrontation has been treated as both international and non-international. At the time of the 9/11 attacks on the US, both the United Nations (UN) Security Council and NATO invoked the right of the US to self-defence in the face of an (p. 461) armed attack.7 This necessarily implied a view that there was an international armed conflict under way. On the other hand, the US Supreme Court has concluded that the conflict between the US and ‘Al-Qaeda, its supporters and affiliates’ is a non-international armed conflict for the purposes of the applicability of the Geneva Conventions.8 This position no doubt reflected an unwillingness to accept the legal ‘black hole’9 that the George W Bush Administration was asserting. This is not the place to resolve this issue of what may be called transnational armed conflict. To the extent that the current contest with al Qaeda-type terrorism represented or continues to represent an armed conflict, it will be most helpful to refer to the ‘fundamental general principles of humanitarian law’ applicable to all armed conflicts.10 As a minimum, they include the rules of non-international armed conflict, notably those contained in Common Article 3 Geneva Conventions.11

How, then, can we conceive of the relationship of IHL and IHRL as they apply to operations to counter this form of transnational terrorism? For a number of reasons, it is safe to conclude that the two systems are not mutually exclusive. First, only two countries are known to have taken the contrary position, the US and Israel. As for the US, its position has not been maintained so consistently that either it should be seen as a reflection of state practice, or that of a persistent objector. As for Israel, it is highly doubtful that its persistent objection to the applicability of IHRL to armed conflict can prevent the emergence of erga omnes principles and, even less, jus cogens norms that would be binding on the objecting state.12

Second, no human rights treaty body has been prepared to consider that the treaty’s human rights obligations cease in armed conflict situations. It is true that the US has challenged the applicability of the International Covenant on Civil and Political Rights (ICCPR)13 extra-territorially, particularly in armed conflict situations, but that position itself is believed to be currently under review.14 In any event, the UN Human Rights Committee has consistently rejected this position.15 And to the (p. 462) extent that the treaties do apply in armed conflict situations, that is also evidence that the general or customary international law of human rights can also cover such situations. There is nothing in the treaties to suggest that, in this respect, they were to extend the reach of international human rights law. Indeed, the position of the Committee—that human rights and humanitarian law ‘are complementary, not mutually exclusive,’16—has been approved by expert meetings convened by the UN High Commissioner for Human Rights at the request of the Human Rights Council.17

Third, the International Court of Justice has taken the view that in any given armed conflict situation, each system may apply separately or concurrently.18 Such an authoritative affirmation of the relevance of both fields of law can simply not credibly be dismissed.

There then remains the question of how the two fields are to be articulated in practice. There is not the space here to develop a comprehensive framework. Indeed, it is probably premature even to believe that a generally agreed framework exists.19 Accordingly, we shall have to content ourselves with identifying a number of broad presumptions that can be helpful in providing answers.

First, like any armed conflict, transnational armed conflict is governed by the ‘fundamental general principles of humanitarian law’.20 These are at least coextensive with the rules governing non-international armed conflict, as reflected in Common Article 3 Geneva Conventions of 12 August 1949.21

(p. 463) Second, where the relevant rules of IHL deal in detail with actions that are at the heart of the conduct of the conflict, then that law will affect (and perhaps supply) the interpretation of the relevant IHRL rule. Thus, for example, a killing in an international armed conflict that is lawful under IHL will not violate the IHRL on the right to life. Nor will detention as a prisoner of war of a member of the adverse party, as long as the detention respects the regime applicable to prisoners of war under Geneva Convention III.

Third, in other cases, the further the activities in question are from the battlefield—and the greater the effective control of a party22—the more IHRL can claim to regulate the situation using its own interpretations. By the same token, the more unstable and violent the situation—the less the effective control—the more IHRL may need to take account of the rules of IHL.23

Fourth, to the extent that the conflict is an internal one, the presumption should be that IHRL applies on its own terms.24 Only perhaps in a conflict of civil war proportions would IHL help to supply the relevant interpretation of the applicable IHRL rule. The reason for the presumption in favour of the applicability of pure IHRL in an internal conflict is that, as far as the government party is concerned, it claims an authority to rule and that authority must be subject to respect for human rights, just as any government has this obligation to protect them.

Of course, as will be seen, international human rights law is not insensitive to the stresses that may befall a state. It recognizes that certain rights may be subject to restriction in order to maintain fundamental goals, such as restoring public order.25 Indeed, in times of public emergency, the full application of certain rights may be suspended if necessary to cope with the emergency. Others may not. For example, while there can be no derogation from the prohibition of torture, the right to liberty and security of person/prohibition of arbitrary detention may be subject to (limited) measures of derogation (see below).

(p. 464) 3.  Detention as a Function of Criminal Justice Processes

The overarching principle of IHL relevant to due process is that contained in Common Article 3. Among the acts ‘prohibited at any time and in any place whatsoever’ is ‘the passing of sentences and the carrying out of executions, without previous judgment pronounced by a regularly constituted court, affording all the guarantees which are recognized as indispensible by civilized peoples’. The infelicitous reference to civilized peoples tracks the parallel provision of the statute of the International Court of Justice relating to general principles of law,26 and must be understood to mean nothing more than the major legal systems from which general principles of law may be inferred. Nowadays, the natural first point of reference for such principles would be Article 14 ICCPR.27

Curiously, like Article 9, with which it has important links, Article 14 is not one of those provisions that is insulated from derogation in time of public emergency. However, just because there may be some derogation from certain provisions does not mean that they may necessarily be ignored entirely. In the words of Article 4 ICCPR, measures of derogation must be ‘strictly required by the exigencies of the situation’. This has led the Human Rights Committee to affirm that:

… the mere fact that permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. In practice, this will ensure that no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behaviour of a State party.28

In this, it has tracked international jurisprudence.29 More specifically for our purposes, it has also maintained that ‘States parties may in no circumstance invoke article 4 of the Covenant as justification for acting in violation of international humanitarian law or peremptory norms of international law … through arbitrary deprivations of liberty or by deviating from fundamental principles of a fair trial, including the presumption of innocence’.30

Of course, what may be the fundamental principles of a fair trial, apart from the presumption of innocence, may be uncertain. Some guidance may be found in (p. 465) international jurisprudence. This will be seen to be helpful in the area that is the focus of the present chapter, namely the detention dimension of judicial proceedings. It is specially the case in respect of the earliest dimension of the process, arrest in connection with the suspected commission of a criminal offence.

3.1.  The Pre-Charge Arrest Phase—IHRL

This is the phase that most implicates provisions concerning arbitrary arrest and those concerning a fair trial. It is also the phase of maximum vulnerability to torture and other ill-treatment, the prohibition of which informs interpretations of the former provisions.

It is axiomatic that a detention that is unlawful under national law will be unlawful under international law. In the words of Article 9(1) ICCPR, ‘[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law’. Thus, if national law requires that arrests may only take place on the issuance of a judicial order, unless the person is caught in flagrante delicto, then an arrest of a person not caught in the act and without a judicial order will be an arbitrary arrest.31

With or without a judicial order, arrests typically involve the holding in detention by the detaining body which will be a law enforcement body, whose core functions are to prevent and solve crime. Obtaining information or a confession from a person being held in connection with the commission of a crime is therefore generally expected to be a desirable goal of those maintaining the detention post-arrest. This is why this phase makes the detainees vulnerable and, indeed, puts law enforcement officials at risk of succumbing to the temptation to use abusive methods of investigation.

From this, it follows that measures of protection are required. Such measures are principally limits on the period of detention in the hands of the law enforcement body and measures to ensure external control of the detention. There is a complex interplay between these types of measure.

The central rule is that found in various forms in IHRL treaties by which a person ‘arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power’.32 The practice of the Human Rights Committee is to consider the period denoted by ‘promptly’ generally to mean not more than two to three days.33 In Brogan v United Kingdom the (p. 466) European Court of Human Rights (ECtHR) has considered more than four days as exceeding the notion.34 But it has also been willing to accept seven days, as long as other measures of external control are in place, for instance the ability to challenge the lawfulness of the detention and access to a lawyer after a certain time.35 Indeed, in a recent case that has required a number of jurisdictions to change their laws, the ECtHR has ruled, in Salduz v Turkey, that there is a right to the presence of a lawyer when a person is being interrogated.36 It is to be hoped that state practice will follow this lead of the European region.

It should be noted that there is nothing in Article 9 ICCPR or its regional analogues dealing with a right to access to a lawyer. Rather, we seem to be looking to fair trial provisions. Thus, Article 14(3)(b) articulates the right ‘in the determination of a criminal charge’ to ‘have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing’. It might have been thought that this right applies in the post-charge phase of the criminal process. Yet, in Salduz, the ECtHR relied on the equivalent language of Article 6(3)(c) European Convention on Human Rights (ECHR) to arrive at its finding regarding legal access.37 The Human Rights Committee has also considered Article 14(3)(b) to apply to the pre-charge phase.38

What emerges then is an approach according to which the longer a person is held in police-style detention, the stronger the guarantees against abuse need to be. The next question is the extent to which this approach may be attenuated in the case of derogations adopted pursuant to a state of emergency. There is little comfort here for those who would want to leave people for longer at the unsupervised mercy of the detaining/investigating authorities. Key ECHR cases involved derogations from the Article 5(3) right to be brought promptly before a judicial authority. Thus, after the UK had been found in violation of this provision in Brogan as a result of a detention of four days and six hours, the UK derogated from Article 5(3) to permit detention of suspected Irish Republican Army (IRA) activists to extend to up to seven days. The ECtHR made it clear that its finding of a non-violation by the UK in respect of such a protracted police detention in Brannigan v United Kingdom was due to the fact that the applicant had access to a lawyer after 48 hours and a right to challenge the lawfulness of detention (habeas corpus).39 Indeed, in a (p. 467) later case, Aksoy v Turkey, the Court found a violation of Article 5(3) in respect of a 15-day detention where there was no access to the judiciary or a lawyer. Remarkably it did so despite the fact that Turkey had derogated from Article 5(3).40 In essence, the Court was apparently saying that prolonged incommunicado detention, that is detention without access to the outside world and external control, would never be justified as a necessary and proportionate measure required by the exigencies of the situation.

Moreover, prolonged incommunicado detention must be seen not only as violating guarantees that would avoid persons being subjected to torture or other prohibited ill-treatment, but also as directly violating this very prohibition. As early as 1994 the Human Rights Committee found a three-year period of incommunicado detention in Libya to be a form of torture.41 And it is clearly not a matter of years. In respect of the recent counter-terrorism activities of the US, the Committee expressed its concern at people being ‘held incommunicado for months or years’, which it described as ‘a practice that violates the rights protected by articles 7 and 9’.42 It may also be noted that the Human Rights Council, like its predecessor Commission on Human Rights, has affirmed that ‘[p]rolonged incommunicado detention … can itself constitute a form of “torture or other prohibited ill-treatment”’.43 However it is a matter of speculation as to what period of such detention may be considered protracted. Evidently, if it is a matter of months, it will violate the prohibition. Whether it is a matter of weeks or even less remains to be seen. However, it is clear that it violates the prohibition of arbitrary detention and the right to pre-trial consultation with counsel in a matter of a few days44 and, moreover, it will ensure that these or other provisions will be violated even in a state of emergency in respect of which the relevant provisions have been violated.

3.2.  The Pre-Trial Arrest Phase—IHL

Since transnational terrorist suspects will not usually belong to or, at any rate, be acting in connection with an international armed conflict, only Geneva Convention IV (GC IV) and, in respect of contracting states, Additional Protocols I and II to the Geneva Conventions (AP I and AP II)45 will be relevant. The pertinent provisions (p. 468) of GC IV apply only to protected persons in a territory occupied by the state purporting to exercise criminal jurisdiction. Insofar as these provisions may be applicable in respect of an international armed conflict between contracting states, it may be that the provisions in question are not directly applicable. However, they could be relevant by analogy. On the other hand, the protection offered by GC IV generally may be affected by its Article 5 provision that a protected person thought to be ‘engaged in activities hostile to the security’ of the contracting state may be denied ‘such rights and privileges … as would … be prejudicial to the security’ of the state in question.46

As far as ‘accused persons’ charged in occupied territories are concerned, there is no provision for a right to be brought promptly before a judicial authority. There is, however, provision for access to counsel.47 There is no direct indication as to when such access begins. It is arguable that the term ‘accused persons’ presupposes that any charges have to have been preferred before the right to counsel becomes effective. Insofar as this is not the only possible interpretation, it may be that the right begins promptly after arrest.

More clearly applicable would be Article 75 AP I, which, according to paragraph 1, applies to any ‘persons who are in the power of a Party to the conflict’. This provision also omits any reference to a right to be brought before a judicial authority, nor does it contain an explicit reference to a right to access to counsel. Nevertheless, that right must be presumed to be covered by the obligation to ‘afford the accused before and during his trial all necessary rights and means of defence’.48 The explicit reference to the rights obtaining before as well as during the trial is helpful. The use of the word ‘accused’ could again be understood as implying that the right is only exercisable after the preferment of charges. Since, however, it is clear that exercise of the right is ‘necessary’ promptly after arrest, this would be an unsatisfactory interpretation.

Finally, there is clear language signalling that we are not here dealing with IHL as lex specialis. For Article 75(8) AP I specifies: ‘No provision of this Article may be construed as limiting or infringing any other more favourable provision, granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.’

Here, then, we have both an acknowledgement that IHL is not exclusively applicable and, most likely, a clear renvoi to IHRL which had evolved substantially in the (p. 469) 28 years between the adoption of its Geneva Conventions (1949) and the Additional Protocols (1977). Bearing in mind that Article 75 is generally thought to reflect customary international humanitarian law,49 its provisions may safely be considered among the fundamental principles of IHL.

Of course, the Protocol only applies to an international armed conflict between contracting states. To the extent that the situation is one falling within the scope of the notion of non-international armed conflict, then Common Article 3 applies in the way indicated at the beginning of this Section. Further, AP II, like Article 75 AP I, provides by Article 6(4)(a) that an ‘accused’ is to enjoy ‘all necessary rights and means of defence’. This must mean at least the same degree of protection as discussed in relation to Article 75.

It will also be recalled that Common Article 3 is considered as enshrining the fundamental principles of IHL. To the extent that the terrorism arises at the national level and its practice rises to the level of an internal armed conflict, again it is Common Article 3, either as a treaty provision or as customary international law, that applies. In fact, as discussed earlier, the proper view is that the IHRL applies to all activities other than in the context of an actual battlefield clash of arms. However, IHL leaves a major gap in respect of detention effected as capture or as internment (see below) and only later is followed by preferment of criminal charges. The period of detention, which can be protracted, may leave the subsequently charged person in the hands of the investigating authority for periods far in excess of what IHRL would consider as consistent with the prohibition of arbitrary detention or the necessary conditions for a fair trial.

3.3.  Remand Detention—IHRL

It is properly a judicial function to order detention pending trial after the arrest phase just considered. Indeed, the practice whereby a procuratorate (theoretically a prosecuting authority and guarantor of legality) was empowered to order continuation of detention, found in justice systems in the former Soviet Union and states ‘influenced’ by it, is now on the wane.50 The inherent conflict of interest was considered internationally to deny the procuratorate the title of ‘judicial or other authority’. As formulated by the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,51 such an authority was (p. 470) to be an ‘authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence’.52

Thus, in the 1990s, the Human Rights Committee reversed earlier practice to find violations of Article 9(3) in cases where detention was ordered to be continued by a procuratorate held out to be the ‘judge or other officer authorized by law to exercise judicial power’ (within the meaning of Article 9(3) ICCPR), before whom the state was required to bring the person. All the post-Soviet and Soviet-dominated East European states that became Council of Europe members have abandoned this role of the procuratorate in favour of a pure court role.53

The second point of remand detention is, as mentioned, to remove the person to an authority that does not have the same interest in preventing or solving a particular crime as the law enforcement authorities.54 That is why it is the increasing practice to encourage states to put places of remand (and post-conviction) detention under a separate ministry from that responsible for law enforcement. While, in many jurisdictions, it has been the interior ministry that was responsible for both, as in the same group of Soviet or Soviet-dominated states, remand and post-conviction prisons have typically been transferred into the hands of a justice ministry. It is not that it is impossible for the same ministry to be responsible for law enforcement and administration of places of detention, but that the burden is on the state that does combine the functions in the same ministry to demonstrate the reality of an asserted independence. For example, the US Department of Justice is responsible for both and it is not contested. The same was true for the UK, albeit the UK recently transferred Home Office prison responsibilities to a new Ministry of Justice.55 Even with such separation, it may be necessary to ensure that transfers back to police detention or unsupervised police visits to remand centres do not return prisoners to their earlier vulnerability.

The final requirement of remand detention is that it not be open-ended. Here again we find complementarity between Article 9 and Article 14 ICCPR (and their regional equivalents). Thus, Article 9(3) provides that the person brought before the ‘judge or other officer’ be ‘entitled to trial within a reasonable time or to release’, while Article 14(3)(c) entitles a person charged with a criminal offence to be ‘tried without undue delay’. Again there are regional analogues.56 It is impossible to indicate what time periods will fall within or outside these periods, albeit arguably the Article 9 requirement may suggest a briefer period, since the alternative of release (p. 471) does not in principle prevent a trial going ahead.57 But since a common purpose of remand detention is to ensure the person’s availability for trial, perhaps too much should not be made of any difference. As to trial ‘without undue delay’, this has been summarized by the Human Rights Committee as follows: ‘What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.’58

3.4.  Remand Detention Phase—IHL

There is no treaty provision in IHL equivalent to Article 9(3) ICCPR concerning trial within a reasonable time or release. The only provision regarding trial delay applies to protected persons in occupied territories, under Article 71 GC IV to ‘be brought to trial as rapidly as possible’. Once again, for most purposes therefore, it is necessary to assume that in respect of all armed conflicts, the fundamental principles of IHL apply. In casu, this means the principle that requires trial with ‘all judicial guarantees which are recognized as indispensible by civilized nations’, with its implicit renvoi to IHRL and its expectation of trial without undue delay.

3.5  Deprivation of Liberty as a Punishment

As indicated earlier, deprivation of liberty is a standard punishment for serious crimes, especially those involving repeat offending.59 As long as the conditions of detention do not fall foul of the prohibition of torture and cruel, inhuman or degrading treatment or punishment under Article 7 ICCPR, and the right to be treated with respect for one’s humanity and human dignity and the other elements of Article 10 ICCPR, as well perhaps as the UN Basic Principles on the Treatment of Prisoners,60 IHLR has no written provisions concerning imprisonment as a punishment for criminal behaviour. Nevertheless, it is thought that a sentence of deprivation (p. 472) of liberty should not be disproportionate to the offence committed.61 This is because the notion of arbitrariness is understood to encompass disproportionality.62 IHL is equally silent on the matter.

4.  Administrative Internment

As indicated earlier, states are sometimes tempted to remove perceived threats to their security, even if they are not able to effect deprivation of liberty through the criminal justice system, usually for lack of (admissible) evidence capable of demonstrating guilt to the high level required for criminal conviction.63

4.1.  Administrative Internment—IHRL

It is not clear to what extent Article 9 ICCPR, in the absence of derogation, permits administrative internment. Certainly, in its 1982 General Comment on Article 9, the Human Rights Committee referred to administrative detention (clearly used in the sense of administrative internment here) without indicating that derogation was necessary before having recourse to the measure.64 Interestingly, the UN Working Group on Arbitrary Detention (WGAD) has suggested that a derogation may be needed to avoid arbitrariness—this, precisely in the context of US detention of suspected terrorists in places such as the US Naval Station at Guantánamo Bay.65 It is clear that a derogation is needed to justify administrative internment under Article 5 ECHR, as that article contains an exhaustive list of permissible grounds of deprivation of liberty and the list does not include detention by the executive on security grounds.

So far the practice of treaty bodies and that of the WGAD seems to indicate that, at least as long as there is a derogation, administrative internment may be permissible as a matter of law. Indeed, in its first ever case, Lawless v Ireland, the ECtHR upheld administrative internment of suspected IRA activists in Ireland.66 When the UK also resorted to it during the violent Republican campaign of the Provisional IRA, the Court upheld the practice there too.67

(p. 473) The apparent acceptance of administrative internment by the Human Rights Committee in 1982 has already been noted. While expressing concern about the limited procedural safeguards (see below), the Committee did not take the opportunity afforded by its 2006 review of the periodic report of the US to challenge the administrative internment process as such, even in the absence of a notice of derogation.68 Perhaps it felt it would have been unwise to open itself to the accusation that it was imposing a novel interpretation on the US, especially as the practice could be adequately impugned by application of traditional interpretations.

The UK also for a short period reverted to the practice post 9/11. It detained without charge foreigners considered a threat to national security (some on grounds of suspected involvement in terrorism) whom it could not return to their home countries because of the ‘real risk’ of their being subjected on their return to treatment violating the Article 3 ECHR prohibition of torture and other ill-treatment.69 And it did not have sufficient evidence to prosecute them for offences subject to UK criminal law. However, the House of Lords majority did not find internment as such to violate Article 5 ECHR. Rather, they read it together with the non-discrimination provision of Article 14 and concluded that the discrimination on grounds of national origin was unjustified.70 After all, British subjects might also be identified as a security threat, but with evidence of their guilt of criminal activity insufficient to sustain a criminal prosecution. When the case went to the ECtHR on other grounds, the UK sought to reopen the adverse finding of the House of Lords, but the Court was having none of it. It followed the House of Lords’ reasoning and did not challenge the possibility of internment as such.71

So, it may be that, however repugnant to ordinary standards of justice and however politically unwise a specific programme of internment may be—in the context of the Northern Ireland troubles, it was a recruiting sergeant for the Provisional IRA that was eventually abandoned—such internment has not yet been authoritatively found to violate the prohibition of arbitrary detention, at least as long as a valid derogation is made.

Of course, to be valid the principle of proportionality must be respected. That is, that there be no alternative to internment. Here account must be taken of the possibility of alternatives short of outright detention that permit effective monitoring and control of the persons in question. It is instructive that, in the wake of the Belmarsh case (A and others) rather than expand possibilities of internment to all whom it might be thought necessary to detain, the UK Government decided to (p. 474) resort to alternatives such as electronic tagging, travel limitations, curfews, etc. In other words, resort to internment both as a system and in any individual case, must be an absolutely last resort, permitting no alternative means to confront the perceived threat.

However, it is increasingly evident that any programme of internment needs to be tempered by serious safeguards aimed at preventing abuse and avoiding error. This dimension was not apparent in the early ECHR cases of Lawless and Ireland v United Kingdom. The Human Rights Committee, on the other hand, was prompt to make the point in its General Comment No 8. It insisted that not only must the detention ‘be based on grounds and procedures established by law’, but also ‘information of the reasons must be given’ and, crucially, ‘court control of the detention must be given’.72

This approach governed the Committee’s attitude to the detention of suspected terrorists in Guantánamo Bay and elsewhere. Thus, citing Article 9 ICCPR, it detailed its concern that:

… proceedings before Combatant Status Review Tribunals (CSRTs) and Administrative Review Boards (ARBs), mandated respectively to determine and review the status of detainees, may not offer adequate safeguards of due process, in particular due to: (a) their lack of independence from the executive branch and the army, (b) restrictions on the rights of detainees to have access to all proceedings and evidence, (c) the inevitable difficulty CSRTs and ARBs face in summoning witnesses, and (d) the possibility given to CSRTs and ARBs, under Section 1005 of the 2005 Detainee Treatment Act, to weigh evidence obtained by coercion for its probative value. The Committee is further concerned that detention in other locations, such as Afghanistan and Iraq, is reviewed by mechanisms providing even fewer guarantees.73

By way of remedy for these shortcomings, the Committee called on the US to:

… ensure, in accordance with article 9(4) of the Covenant, that persons detained in Guantánamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release. Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard.74

It would seem that, for the recommended due process effectively to meet the articulated concerns, it would have to come close to meeting the fair trial requirements of Article 14. Perhaps the main element that would be missing would be the threshold of evidence on which decision-making would be based. It would presumably not have to rise to the level of ‘beyond reasonable doubt’, as the Committee demands (p. 475) for a criminal conviction.75 This does not mean that a very low threshold such as ‘reasonable suspicion’ would be expected to suffice. But perhaps something along the lines of the common law test for tortious liability, that is, proof on ‘a balance of probabilities’, would withstand scrutiny.

It is also worth noting that the Human Rights Council, in its 2007 resolution on arbitrary detention, encouraged states to ensure that the right to challenge the lawfulness of detention (and to be released if it is unlawful) ‘is equally respected in cases of administrative detention, including administrative detention in relation to public security legislation’.76

4.2  Administrative Internment—IHL

One classic form of administrative detention or internment—though such terminology is not normally used—is detention of prisoners of war. Indeed, it may be that the detailed and extensive rules relating to such detention, notably in GC III, are indeed the relevant lex specialis, compliance with which would insulate the detention from challenge as a form of arbitrary detention. However, this is of no major interest for our purposes, as the conflict must be between contending states and prisoners of war must be members of the regular armed forces of a contracting state or at best members of a non-state party’s organized forces, bearing arms openly.77 This is not the case for the kinds of person engaged in the sorts of transnational terrorism that is of present concern. So, once again, it will be primarily GC IV that will guide us. In fact, given that we are not dealing with an international armed conflict pursuant to Common Article 2 Geneva Conventions, even GC IV does not apply as such and, except in respect of occupied territory, suspected terrorist detainees will not therefore be protected persons. Nevertheless, its provisions may be helpful by analogy or as evidence of customary IHL.

The first point to note is that internment of aliens in the territory of a party to the conflict is foreseen as a measure available to a party to a conflict, but ‘only if the security of the Detaining Power makes it absolutely necessary’.78 Indeed, the provisions for conditions of internment in occupied territories are so detailed and so similar to those applicable to prisoners of war, it may be that here too we have a form of lex specialis that is capable of being at least as protective, if not more so, than IHRL.

Of special note are the safeguards envisaged in the case of internment. Thus, the internment of aliens in the hands of one party must be ‘reconsidered as soon as (p. 476) possible by an appropriate court or administrative board designated … for that purpose’.79 What is more, the court or board are to consider the case periodically (at least twice yearly) ‘with a view to the favourable amendment of the initial decision, if circumstances permit’.80 However, there is nothing suggesting the right of access to a lawyer. The closest equivalent is the obligation of the detaining power to inform the protecting power ‘as rapidly as possible’.81 Temporal proportionality is also addressed by Article 75(3) AP I. This provides that internees ‘shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the … internment have ceased to exist’.

It may also be noted that, as indicated earlier, detention not complying with the criteria considered in this section would constitute ‘unlawful confinement’ and, thus, a grave breach of GC IV.82 As regards internal armed conflict, this is evidently an area in respect of which the IHRL governs.83

One dimension of internment in the context of transnational terrorism is its indefinite and protracted nature. Most international wars end in a foreseeable future that rarely exceeds a decade (the Vietnam war—to the extent that it was an international armed conflict—untypically lasted 13 years). Civil conflict may be more protracted (although not characterized as an armed conflict, the troubles in Northern Ireland lasted a quarter of a century or so), but the internment of persons, if any, does not tend to be coextensive with the conflict.

In the context of the current response to transnational terrorism, persons have already been held for close on a decade. Moreover, it is the nature of the confrontation that there may be no identifiable end. This is thought to create a context for psychological oppression and profound mental suffering that, as was argued in A and others v United Kingdom, could fall within prohibitions of torture or cruel or inhuman treatment. At this point, we can only note the problem. No authoritative consideration of it is yet available.84 The least that can be said is that the longer the detention persists, the more the principle of proportionality will urge periodic reviews to require a commensurately higher burden of proof of the need to continue the detention. In any event, where serious psychological damage is plausibly being caused by the detention, there may be a requirement to find an alternative, including release.85

(p. 477) 5.  Secret Detention

It is disconcerting to have to consider the lawfulness of secret detention which most might think would be a paradigmatic form of arbitrary detention and, at best, internment without the safeguards envisaged in either IHRL or IHL. However, it was practised and acknowledged to have been practised under the Bush administration.86 People might be detained somewhere, say, in the Middle East, and kept in detention in unknown places, in unknown parts of the world, before eventually being taken to Guantánamo Bay where their detention would eventually be acknowledged. The detention was secret and could last for years. The fate or whereabouts of the person was unknown to the family or to anyone else in the outside world, even the ICRC.87 To all intents and purposes the practice looked like an enforced disappearance. Whether or not that was the correct characterization will be touched on below.

5.1.  Secret Detention—IHRL

It will be recalled that the most basic form of arbitrary detention is detention that is unlawful under the law of the state responsible for implementing it. Administrative detention/internment by the US has been asserted to be lawful pursuant to a congressional resolution entitling the Executive Branch to use ‘all necessary means’ to deal with the al Qaeda challenge.88 But a series of US Supreme Court cases has established that various remedies—including certiorari,89 habeas corpus for US citizens,90 and habeas corpus for non-US citizens91—are available to persons detained by the US, at least in the US or in Guantánamo Bay.92 There is conflicting case law in respect of persons held elsewhere,93 an issue expected eventually to be resolved by (p. 478) its Supreme Court. If anyone in the hands of the US anywhere in the world does turn out to have some minimal constitutional rights, then secret detention that denies them the means to enjoy those rights would plausibly be unlawful.

Even if it were held to be lawful under US law, we are evidently confronted here by an extreme form of incommunicado detention. It is not necessary to repeat that, to the (highly probable) extent that such detention falls foul of the prohibition of arbitrary detention/right to liberty and security of person, the right to be treated with humanity and respect for one’s human dignity and the prohibition of torture or cruel, inhuman or degrading treatment (as regards the detained person and his or her family), secret detention for months and years inevitably attracts the same characterization.

Certainly, the Human Rights Committee in 2006 expressed its concern that the US had ‘seen fit to engage in the practice of detaining people secretly and in secret places for months and years on end, without keeping the International Committee of the Red Cross informed’.94 It was in this context that it affirmed that, as a form of incommunicado detention, it violated the rights protected by Articles 7 and 9 ICCPR and, in unusually peremptory terms, it told the State Party that it ‘should immediately cease its practice of secret detention and close all detention facilities’ and grant the ICRC ‘prompt access to any person detained in connection with an armed conflict’.95

Does secret detention constitute an enforced disappearance? For the purposes of the international law of state responsibility, the definition of enforced disappearance in the international convention dealing with the phenomenon is the first port of call:

For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.96

From this, it is evident that the secret detention as practised by the US under the Bush administration involved, if not outright abduction, in any event detention. There was a refusal to acknowledge the deprivation of liberty and concealment of both the fate and the whereabouts of the person. The only remaining issue arises out of the words ‘which place such a person outside the protection of the law’. (p. 479) It is unclear whether these words are merely descriptive of the inevitable effects of the secrecy of the detention and so add no further criterion of evaluation, or whether they represent an independent element that has to be present. That is, might it be possible for a state engaging in such secret detention to argue that the person nevertheless remained within the protection of the law? Both positions were asserted during the drafting of the Convention.97

At this point it must be noted that Article 17(1) Enforced Disappearances Convention specifically provides: ‘No one shall be held in secret detention.’ This very fact appears to reinforce the notion that a secret detention is not necessarily an enforced disappearance and that, accordingly, placing outside the protection of the law is an independent element of the definition of enforced disappearance.98

It may be asked why it matters whether the mere term enforced disappearance is used to describe unlawful incommunicado detention and unlawful secret detention. The answer lies in the legal consequences. If a state is responsible for enforced disappearances, one of the remedies it is expected to afford is the prosecution of the individuals whose actions have engaged the state’s responsibility.99 In providing for criminal legal consequences the law tracks that relevant to torture and arbitrary deprivations of life.100 One might add that at last as between States Parties to the Enforced Disappearance Convention, unless they extradite them for trial elsewhere, there is an obligation to try persons in their custody who may have been responsible for enforced disappearance in another jurisdiction and regardless of the nationality of the perpetrator or the victim.101

Finally, at the risk of belabouring the obvious, no state of emergency could be held to justify resort to secret detention any more than it could be used to justify prolonged incommunicado detention.

5.2.  Secret Detention—IHL/International Criminal Law

There are no provisions in IHL concerning secret detention beyond those that have already been discussed regarding other forms of detention, notably incommunicado pre-trial detention and internment. It may be noted that, according to Article 41 GC IV in relation to aliens in the territory of a party to the conflict, states ‘may not have recourse to any other measure of control more severe than that of (p. 480) assigned residence or internment’.102 It follows that there is no room for an argument justifying the incomparably more severe secret detention based on the silence of GC IV. Any such detention of protected persons would be ‘unlawful confinement’ and so a grave breach of the Convention.103

International criminal responsibility may be involved, not only pursuant to a war crime (including grave breaches of the Geneva Conventions), but also under the international criminal law rubric of crimes against humanity. Specifically the Rome Statute of the International Criminal Court (ICC),104 by Article 7(1)(e), recognizes ‘imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ as a crime against humanity, that is, a crime committed in the context of a widespread or systematic attack on a civilian population. The ICC Statute also recognizes by Article 7(1)(i) enforced disappearance as a crime against humanity.105 It must be noted that there is a significant variation in its definition of enforced disappearance from that contained in the Enforced Disappearance Convention. They are identical except that the final clause of the ICC Statute definition in Article 7(2)(i) requires ‘the intention of removing [the persons] from the protection of the law for a prolonged period of time’. This definition clearly makes the element of placing the person outside the protection of the law as an independent element through a specific mens rea. It also takes account of the temporal problem of determining when an arbitrary detention involving simply exceeding lawful detention periods becomes the much graver violation that should attract individual penal responsibility.

While at least one of these provisions would inexorably catch the sort of secret detention practice of concern here, the threshold problem is the contextual requirement of the detention being part of an attack against a civilian population. It would be hard to show that this was the reality of the counter-terrorist actions. Rather, it has been the very terrorist activities that have been a flagrant attack directed against civilians. Nevertheless, the fact that such detention can be a crime against humanity militates against any interpretation of IHRL or IHL that would seek to excuse secret detention as lawful.

6.  Conclusion and Recommendations

A thoughtful commentator sees, in respect of post 9/11 counter-terrorism discourse, a struggle taking place between a law and order paradigm governed mainly by (p. 481) IHRL and an armed conflict paradigm governed mainly by IHL. He finds, as does the present chapter in part, a ‘mixed’ paradigm emerging whereby IHRL notions are read into IHL.106 In fact, as has been shown, modern IHL to some considerable extent invites a renvoi to IHRL principles. Moreover, a balance is struck by the necessity of reading some IHRL principles, especially the fundamental right to life, in the light of IHL rules regarding the taking of life in international armed conflict. The task is to find the right interpretation of the appropriate rule of IHRL or IHL according to the facts in question and in the light of the context (relative stability or relative conflictual instability). What is firmly sustained in the present chapter is that in internal armed conflict, the presumption is that IHRL applies on the basis of its own criteria (including scope for derogation), other than perhaps in a true battlefield situation.

From a detention perspective, the most salient difference between the two bodies of law is that relating to pre-charge detention. In international (and possibly transnational) armed conflict, there are few limits to the length of detention and to the period between capture/detention and the preferment of charges, except insofar as a conscientious, independent tribunal would hesitate to convict on the basis of evidence attributable to the detention process or would consider the period of undue delay capable of vitiating the fairness of a trial to run from the moment of capture/detention. The other main possible area of difference is in relation to the processes and duration of internment. IHRL, as interpreted by authoritative bodies, envisages a controlling role for the courts. IHL boards may not necessarily have to have the same attributes of judicial authority. It may now be that indefinite internment is not tolerated by IHRL, whereas there is less authority for a similar assertion as regards IHL.

By contrast, it may be asserted with confidence that secret detention, as practised under the Bush Administration, was and is unlawful under both legal systems. The failure of even the Obama Administration to redress it and other illegalities found by UN treaty bodies merely aggravates the illegality.107

To the extent that discrepancies between the two systems raise problems from a human rights perspective, no easy solution commends itself. Whether the route (p. 482) should be by amending IHL or by establishing the dominance of IHRL is hardly clear. In any event, there is no certainty that a codification exercise, even one aiming at a ‘soft law’ instrument,108 would yield the sought for content. As ever, law is a normative reflection of a state of political relations at a moment in time. It may be that the prudent course is to allow a political and normative evolution to develop, be it through political and national legislative initiative or national and international judicial decision-making. The developments that have already taken place to bring light to the legal ‘black hole’ that the Bush Administration sought to create are evidence of the possibilities of both avenues of endeavour.

6.1.  Recommendations

  1. (1)  In internal armed conflict, counter-terrorist activities, particularly detention, should be compliant with IHRL, except as necessitated temporarily by battlefield conditions.

  2. (2)  In transnational armed conflict, counter-terrorist activities, particularly detention, should conform to IHRL as the situation stabilizes and actual conflict is absent, that is, when there is effective control by the state party to the conflict.

  3. (3)  Indefinite administrative detention should be regarded as impermissible.

  4. (4)  Where a person is detained administratively for a protracted period, evidence elicited by virtue of the fact, processes, or conditions of detention should not be admissible. There should be a cut-off point beyond which no criminal prosecution can be considered safe.

  5. (5)  Administrative internment should only be used as an absolute last resort, both as a system and in any individual case, when criminal prosecution is excluded for reasons not attributable to the prior detention and no alternative means of monitoring or control would suffice (principle of proportionality). It should be controlled by strict procedures of independent, regular (not more than six months) review, with resort to a court, on both the legality and well-foundedness of the detention. A decision to continue detention should be based on evidence that at least reaches the standard of a balance of probabilities, with the presumption being against detention after the first review.109

  6. (6)  Secret detention is absolutely prohibited.

Footnotes:

Senior Lecturer in International Laws of Armed Confl ict, Defence Academy of the United Kingdom (Cranfi eld University). I am grateful to Captain Rupert Hollins RN and Lieutenant-Colonel Nicholas Mercer ALS for providing certain research materials. Needless to say, responsibility for any errors is mine alone. All opinions expressed herein are also personal and do not necessarily refl ect any position of the Government or Ministry of Defence of the United Kingdom.

See, for example, AWB Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (UCLA Press, Berkeley 2007); D Lowry, ‘Internment in Northern Ireland’ (1976) 8 Univ Toledo L Rev 169; B Brandon, ‘Terrorism, Human Rights and the Rule of Law: 120 Years of the UK’s Legal Response to Terrorism’ (2004) Crim L Rev 981; H Cook, ‘Preventive Detention—International Standards and the Protection of the Individual’ in S Frankowski and D Shelton, Preventive Detention: A Comparative and International Law Perspective (Nijhoff, Dordrecht 1992) 1.

UN Human Rights Committee, ‘CCPR General Comment No. 32: Right to Equality Before Courts and Tribunals and to a Fair Trial (Article 14)’ (23 August 2007) CCPR/C/GC/32 para 30.

C Savage, W Glaberson, and AW Lehren, ‘Classified Files Offer New Insights into Detainees’ New York Times (26 April 2011) 〈http://www.nytimes.com/2011/04/25/world/guantanamo-files-lives-in-an-american-limbo.html?_r=1&nl=todaysheadlines&emc=tha22〉 accessed 27 April 2011.

Rasul v Bush 542 US 466 (2004); Hamdan v Rumsfeld 548 US 557 (2006); HH Koh, ‘The Case Against Military Commissions’ (2002) 96 AJIL 337.

For a comprehensive survey of IHL principles in a counter-terrorism context, see J Pejic, ‘Armed Conflict and Terrorism: There is a (Big) Difference’, Chapter 7 of this volume.

Prior examples include the al Qaeda attacks carried out against the US embassies in Dar Es Salaam, Tanzania, and Nairobi, Kenya on 7 August 1998; and the attack on the USS Cole on 12 October 2000.

Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Wall Opinion).

Hamdan v Rumsfeld (n 4) 69.

J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 ICLQ 1.

10  Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Judgment) [1986] ICJ Rep 14 para 218.

11  Nicaragua v United States (n 10). See JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law: Vol 1: Rules (CUP, Cambridge 2007) xliv.

12  See JI Charney, ‘Universal International Law’ (1993) 87 AJIL 529. Most, if not all, common art 3 norms are accepted as jus cogens.

13  Adopted 16 December 1966, entered into force 23 March 1976.

14  At the time of writing, details of the review are not yet in the public domain.

15  UN Human Rights Committee, ‘CCPR General Comment No. 31: The Nature of General Legal Obligations Imposed on State Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev.1/Add.13 para 10; UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Israel’ (2003) UN Doc CCPR/CO/78/ISR; MJ Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 AJIL 119; MJ Dennis and AM Surena, ‘Application of the International Covenant on Civil and Political Rights in Times of Armed Conflict and Military Operation: The Gap Between Legal Theory and State Practice’ [2008] EHRLR 714; N Rodley, ‘The Extraterritorial Reach and Applicability in Armed Conflict of the ICCPR: A Rejoinder to Dennis and Surena’ [2009] EHRLR 628.

16  UN Human Rights Committee, General Comment No. 31 (n 15) para 11.

17  See UN Human Rights Council Res 9/9 (2008) UN Doc A/HRC/Res/9/9; UN Human Rights Council, ‘Report of the Office of the High Commissioner for Human Rights: Outcome of the Expert Consultation on the Issue of Protecting the Human Rights of Civilians in Armed Conflict’ (4 June 2009) UN Doc A/HRC/11/31 (Expert Consultation Outcome Document).

18  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 25; Wall Opinion (n 7) para 106; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168 para 216.

19  JB Bellinger III and VM Padmanabhan, ‘Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law’ (2011) 105 AJIL 201; N Prud’homme, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel L Rev 356; LM Olson, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation on Internment in Non-international Armed Conflict’ (2007–2009) 40 Case Western Reserve JIL 437.

20  Nicaragua v United States (n 10) para 218.

21  Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) (GC II); Geneva Convention (III) Relative to the Treatment of Prisoners of War 1949 (adopted 12 August 1949, entered into force 21 October 1950) (GC III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) (GC IV).

22  At least a State Party: it is acknowledged that there may be a question as to the applicability of IHRL to a non-State Party to a conflict that could present a problem of imbalance. This is a problem that a self-respecting state ought to be prepared to live with; after all most, if not all, common art 3 provisions must be respected regardless of (non-)reciprocity.

23  Expert Consultation Outcome Document (n 17) paras 9–19, see especially paras 14–15 on the ‘effective control’ test.

24  As Professor Françoise Hampson stated to the former UN Sub-Commission on the Promotion and Protection of Human Rights, of which she was a member, ‘it is noteworthy that no State appears ever to have disputed the applicability of [IHRL] to an internal conflict on the ground that … IHL alone was applicable’ (3 August 2006) UN Doc. A/HRC/Sub.1/58/CRP.5 3 para 5.

25  See, for example, art 4 ICCPR; Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 15; American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) (ACHR) art 27.

26  Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) art 38(1)(c).

27  See, for example, Prosecutor v Zlatko Aleksovski (Appeal) ICTY-95-14/1-A (24 March 2000) para 104; Prosecutor v Tadic (Appeal) ICTY-94-1-A (15 July 1999) para 43; Hamdan v Rumsfeld (n 4) fn 66.

28  UN Human Rights Committee, ‘CCPR General Comment No. 29: States of Emergency (Article 4)’ (31 August 2001) CCPR/C/21/Rev.1/Add.11 para 4.

29  For example, Aksoy v Turkey (App no 21987/93) (1997) 23 EHRR 553.

30  UN Human Rights Committee, General Comment No. 29 (n 28) para 11.

31  For example, UN Human Rights Committee, Domukovsky et al v Georgia, Communication Nos 623/1995, 624/1995, 626/1995, and 627/1995 (1998) UN Doc CCPR/C/62/D/623, 624, 626 and 627/1995 para 18.4.

32  Art 9(3) ICCPR.

33  UN Human Rights Committee, ‘CCPR General Comment No. 8: Right to Liberty and Security of Persons (Article 9)’ (30 June 1982) HRI/GEN/1/Rev.9 (Vol I) 179 para 2 speaks of ‘a few days’; in Freemantle v Jamaica, Communication 625/1995 (2000) UN Doc CCPR/C/68/D/625/1995 para 7.4, the Committee found a period of four days before being brought before a court to violate art 9(3).

34  Brogan and others v United Kingdom (App nos 11209/84, 11234/84, 11266/84, 11386/85) (1989) 11 EHRR 117 para 62.

35  Brannigan and McBride v United Kingdom (App nos 14553–14554/89) (1994) 17 EHRR 539. The applicants had access to a lawyer after 48 hours.

36  Salduz v Turkey (App no 36391/02) (2009) 49 EHRR 19 paras 50–5.

37  Salduz v Turkey (n 36) paras 50–5.

38  UN Human Rights Committee, General Comment No. 32 (n 2) para 32.

39  Brannigan and McBride v United Kingdom (n 35) paras 63–4.

40  Aksoy v Turkey (n 29) paras 68–87.

41  UN Human Rights Committee, El-Megreisi v Libyan Arab Jamahiriya, Communication No 440/1990 (27 December 1990) UN Doc CCPR/C/50/D/440/1990 (1994) para 5.4.

42  UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: United States of America’ (2006) UN Doc CCPR/C/USA/CO/3/Rev.1 para 12.

43  UN Human Rights Council Res 8/8 (2008) UN Doc A/HRC/RES/8/8 para 7(c). For discussion and the relevant Commission on Human Rights resolutions, see N Rodley and M Pollard, The Treatment of Prisoners under International Law (3rd edn OUP, Oxford 2009) 480.

44  UNGA Res 43/173 ‘UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’ (9 December 1988) UN Doc A/Res/43/173 (UN Body of Principles) Principles 11 and 15.

45  Adopted 8 June 1977, came into effect 7 December 1978.

46  Albeit only in respect of occupied territory, the same article more troublingly allows a protected person ‘under definite suspicion of activity hostile to the security of the Occupying Power’ to be regarded ‘where absolute military security so requires … as having forfeited rights of communication under the present Convention’.

47  Art 72 GC IV.

48  Art 75(4)(a) AP I.

49  See MJ Matheson, ‘The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) 2 Am Univ ILR 419; a US Department of Defence memorandum of 8 May 1986, signed by top lawyers of the four branches of the US armed services and on file with the author states the legal position of those branches, according to which art 75 is one of a number of AP I provisions that ‘are already part of customary international law’.

50  Although this practice is still in use in China, for example.

51  UN Body of Principles (n 44).

52  UN Body of Principles (n 44) Preamble (Use of Terms) (f).

53  Kulomin v Hungary, Communication No 521/1992 (1996) UN Doc CCPR/C/50/D/521/1992 para 11.3.

54  See Section 3.1.

55  ‘Home Office to Be Split in Two’ BBC News (29 March 2007) 〈http://news.bbc.co.uk/1/hi/uk_politics/6505025.stm〉 accessed 12 April 2011.

56  Arts 5(3) and 6(1) ECHR; arts 7(5) and 8(1) ACHR.

57  See UN Human Rights Committee, General Comment No. 32 (n 2) para 35 which states that ‘[t]he right of the accused to be tried without undue delay, provided for by article 14, paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice…In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible. This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgment on appeal. All stages, whether in first instance or on appeal must take place “without undue delay.”’

58  UN Human Rights Committee, CCPR General Comment No 32 (n 2) para 35.

59  On these issues, see further S Casale, ‘Treatment in Detention’, Chapter 19 of this volume.

60  UNGA Res 45/111 (14 December 1990) UN Doc A/RES/45/111. The UN Standard Minimum Rules for the Treatment of Prisoners are an important source for the interpretation of art 10 ICCPR: see UN Human Rights Committee, ‘CCPR General Comment 21: Replaces General Comment 9 Concerning Humane Treatment of Persons Deprived of Liberty (Art. 10)’ (10 April 1992) CCPR/C/GC/21 para 5; and, generally, Rodley and Pollard (n 43) Chapter 9.

61  M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, Kehl am Rhein 2005) 167; C Appleton and B Grover, ‘The Pros and Cons of Life Without Parole’ (2007) 47 British J Criminology 597, 606.

62  M Nowak (n 61) 225.

63  See Section 1 above.

64  UN Human Rights Committee, General Comment No. 8 (n 33) para 4.

65  Opinion 2/2009 (United States of America) (2010) UN Doc A/HRC/13/30/Add.1 258 para 33.

66  Lawless v Ireland (App no 332/57) (1979–1980) 1 EHRR 15 paras 42–8.

67  Ireland v United Kingdom Series A No 25 (1979–1980) 2 EHRR 25.

68  UN Human Rights Committee, ‘Concluding Observations’ (n 42).

69  See further K Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances’, Chapter 22 of this volume.

70  See further D Moeckli, ‘Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination’, Chapter 23 of this volume.

71  A and others v United Kingdom (App no 3455/05) (2009) 49 EHRR 29.

72  UN Human Rights Committee, General Comment No. 8 (n 33) para 4.

73  UN Human Rights Committee, ‘Concluding Observations’ (n 42) para 18.

74  UN Human Rights Committee, ‘Concluding Observations’ (n 42) para 18.

75  UN Human Rights Committee, General Comment No. 32 (n 2) para 30.

76  UN Human Rights Council Res 6/4 ‘Arbitrary Detention’ (28 September 2007) UN Doc A/HRC/Res/6/4 para 5(e).

77  Art 4 GC III; art 44 AP I.

78  Art 42 GC IV (emphasis added).

79  Art 43 GC IV; see also the less protective art 78 permitting internment of protected aliens in occupied territories with periodic review (‘if possible every six months’) by a ‘competent body’.

80  Art 43 GC IV.

81  Art 43 GC IV.

82  Art 147 GC IV; Henckaerts and Doswald-Beck (n 11) Rules 118–28.

83  See also Henckaerts and Doswald-Beck (n 11) Rules 118–28.

84  A and others v United Kingdom (n 71), argument made at paras 116–17; rejected at paras 130–1, since the detainees were ‘not without prospect of release’, given the review procedures available.

85  UN Human Rights Committee, C v Australia, Communication No 900/1999 (28 October 2002) UN Doc CCPR/C/76/D/900/1999 paras 8.4–8.5.

86  On the detention issues related in the context of extraordinary renditions, see H Duffy and S Kostas, ‘“Extraordinary Rendition”: a Challenge for the Rule of Law’, Chapter 21 of this volume.

87  WikiLeaks, ‘Guantanamo Manual Shows Continued Abuses’ (4 December 2007) 〈http://www.wikileaks.ch/wiki/Guantanamo_manual_shows_continued_abuses〉 accessed 27 April 2011.

88  ‘Joint Resolution to Authorize the Use of United States Armed Force Against Those Responsible for the Recent Attacks Launched Against the United States’ (18 September 2001) 40 ILM 1282. Note its similarity to UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368 para 5. See also R Wedgwood, ‘Al Qaeda, Terrorism, and Military Commissions’ (2002) 96 AJIL 328.

89  Rasul v Bush (n 4).

92  For a detailed analysis of the key issues and US Supreme Court jurisprudence relating to US military commission processes at Guantánamo Bay, see C Kannady, P Masciola, and M Paradis, ‘The “Push-Pull” of the Law of War: the Rule of Law and Military Commissions’, Chapter 25 of this volume.

93  See the ongoing cases in Mohamed et al v Jeppesen Dataplan, Inc 614 F.3d 1070 (9th Cir 2010) 〈http://www.aclu.org/national-security/mohamed-et-al-v-jeppesen-dataplan-inc〉 accessed 13 April 2011; MP Jensen, ‘Torture and Public Policy: Mohamed v Jepson Dataplan, Inc. Allows “Extraordinary Rendition” Victims to Litigate Around State Secrets Doctrine’ (2010) Brigham Young Univ L Rev 117.

94  UN Human Rights Committee, ‘Concluding Observations’ (n 42) para 12.

95  UN Human Rights Committee, ‘Concluding Observations’ (n 42) para 12.

96  International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) art 2 (Enforced Disappearance Convention).

97  See Rodley and Pollard (n 43) 336.

98  Rodley and Pollard (n 43) 336.

99  Arts 6 and 9 Enforced Disappearance Convention; also Human Rights Committee, General Comment No. 31 (n 15) para 18.

100  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) arts 4 and 5; Human Rights Committee, General Comment No 31 (n 15) para 18.

101  Art 11(1) Enforced Disappearance Convention.

102  See also art 78 GC IV relating to assigned residence or internment in times of occupation.

103  Art 147 GC IV.

104  Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) (ICC Statute).

105  Art 7(1)(i) ICC Statute.

106  Y Shany, ‘Human Rights and Humanitarian Law: Competing Legal Paradigms for Fighting Terror’ in OB Naftali (ed), Collected Courses of the Academy of European Law, Human Rights and Humanitarian Law, Vol. XIX/1 (forthcoming) 〈http://webcache.googleusercontent.com/search?q=cache:_V4ZpHHHARMJ:ilreports.blogspot.com/2009/11/shany-human-rights-and-humanitarian-law.html+shany+terrorism&cd=8&hl=en&ct=clnk&gl=uk&client=safari&source=www.google.co.uk〉 accessed 25 April 2011.

107  See, for example, the case of Canadian citizen Maher Arar rendered by the US to Syria where he was tortured. His attempts to secure compensation through the US courts failed on the basis of national security considerations invoked by the Administration: W Richey, ‘Supreme Court refuses Maher Arar Torture Case’, Christian Science Monitor (14 June 2010) 〈http://www.csmonitor.com/USA/Justice/2010/0614/Supreme-Court-refuses-Maher-Arar-torture-case〉 accessed 26 April 2011.

108  See the ill-fated standards promoted by Theodor Meron: T Meron and A Rosas, ‘A Declaration of Minimum International Standards’ (1991) 85 AJIL 375. The instrument was considered for some years in the (former) UN Commission on Human Rights, but no text emerged.

109  In this paragraph my recommendations are close to those of AS Deeks, ‘Administrative Detention in Armed Conflict’ (2007–2009) 40 Case Western Reserve JIL 403, 433; see also D Cassel, ‘International Human Rights Law and Security Detention’ (2007–2009) 40 Case Western Reserve JIL 383, 384–5.