Experts meeting on security detention report.

• Author: Davidson, Tyler

The International Committee of the Red Cross and the Frederick K. Cox International Law Center at Case Western Reserve University convened a two-day experts meeting at Case Western Reserve University School of Law in September 2007 devoted to legal and practical issues associated with security detention. Experts from governments, NGOs, academia, and the ICRC, participating in their personal capacity, were invited to reflect on the current state of the law governing security detention, to identify impediments to better protection of procedural rights in practice, and to brainstorm about issues that required further examination. This Report summarizes the presentations and discussions of the participants at the experts meeting.

TABLE OF CONTENTS EXECUTIVE SUMMARY Security Detention--The International Legal Framework Security Detention in Practice The Way Forward INTRODUCTION PANEL I: SECURITY DETENTION--THE INTERNATIONAL LEGAL FRAMEWORK SPEAKER'S SUMMARY--SECURITY DETENTION UNDER INTERNATIONAL HUMAN RIGHTS LAW Introduction Gaps within the Law Sources of International Human Rights Law The Scope of International Human Rights Law A Working Definition of Security Detention Permissible Grounds for Detention Judicial Control The Right to be Brought Promptly Before a Judge The Right to Counsel The Right to Notification of the Reasons for Detention Treatment of the Detainee Incommunicado Detention Derogation Restrictions on Derogations from the Right to Liberty Discrimination Under the Law Compensation for Unlawful Detention SPEAKER' S SUMMARY--SECURITY DETENTION UNDER INTERNATIONAL HUMANITARIAN LAW Sources of International Humanitarian Law International Armed Conflict: The Initial Standard for Detention Review of the Initial Detention Ability to Appeal the Initial Detention Decision Periodic Review of Detention Notice as to the Reasons for Detention Non-International Armed Conflict International Humanitarian Law in Practice The NATO Kosovo Force International Practice Generally Adequacy of the Framework SPEAKER'S SUMMARY--CONVERGENCE AND DIVERGENCE OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW Gaps within the Law Addressing the Shortcomings of Humanitarian and Human Rights Law DISCUSSION What Should be Done with the Guantanamo Detainees? Security Threat versus Knowledge of Potential Threats Flexibility of Standards When Does International Human Rights Law Apply? Seven Preliminary Issues PANEL II: SECURITY DETENTION IN PRACTICE SPEAKER' S SUMMARY--SECURITY DETENTION AND THE UNITED KINGDOM Legislative Developments Controlling the Terror Threat The Control Orders System The Control Orders Test Judicial Supervision of Control Orders Procedural Challenges to Control Orders Substantive Challenges to Control Orders Deprivation of Liberty: The JJ Case Deprivation of Liberty: The E Case Other Strategies SPEAKER'S SUMMARY--SECURITY DETENTION AND THE UNITED STATES Returns and Transfers The Guantanamo Bay Military Commissions The Iraq Case The National Security Court Idea SPEAKER'S SUMMARY--SECURITY DETENTION AND ISRAEL Security Detention Inside Israel Security Detention Inside the Occupied Territories Problems with Adherence to the Laws Problems within the Laws Themselves DISCUSSION Security Detention in Canada Effectiveness of U.K. Monitoring Devices and Special Counsel Current Numbers of Detainees in Iraq and Israel Debate on the National Security Courts Idea in the U.S. The Importance of Judicial Review The Role of Counsel Evidentiary Standards Conclusions PANEL III: THE WAY FORWARD The Permissibility of Administrative Detention The Viability of Criminal Prosecutions in the U.S. Defining the Parameters of Security Detention Classified Information and Special Advocates Safeguards against Indefinite Detention Next Steps ANNEX: EXPERTS MEETING PARTICIPANTS EXECUTIVE SUMMARY

The International Committee of the Red Cross (ICRC) and the Frederick K. Cox International Law Center at Case Western Reserve University in Cleveland, Ohio, organized a two-day experts meeting in Cleveland from September 14 to September 15, 2007, devoted to legal and practical issues associated with security detention.

The meeting participants, who included experts from governments, NGOs, academia, and the ICRC participating in their personal capacity, were invited to reflect on the current state of the law governing security detention, to identify impediments to better protection of procedural rights in practice, and to brainstorm about issues that required further examination.

Discussions at the meeting took place in three consecutive panels.

Security Detention--The International Legal Framework

The first panel was devoted to an examination of existing international standards as a means of framing the debate. The experts heard presentations on international human rights law (HRL) and international humanitarian law (IHL) rules relevant to security detention, as well as a presentation on the convergence and divergence of HRL and IHL as applied to this type of detention. The discussion centered, among other things, on the fate of detainees currently held in Guantanamo Bay, on the permissibility of detention for intelligence gathering purposes, and on the applicability of international human rights law.

Security Detention in Practice

The second panel heard three expert presentations summarizing security detention systems in the United Kingdom, the United States, and Israel. The presentations revealed a variety of approaches in security detention procedures, with widely varying rules on a range of practical issues, including access to and types of counsel, as well as judicial review. A brief overview of Canadian security detention laws was also provided in the discussion, which subsequently centered on the viability and implications of establishing a separate regime of national security courts in the U.S. to administer security detention. The experts highlighted the role of counsel and the judiciary in security detention proceedings, as well as the issue of evidentiary standards as requiring further examination.

The Way Forward

In the third and final panel, the participants opined on several topics, including: the permissibility of administrative detention, the viability of criminal prosecutions in the U.S., the parameters of security detention, the use of classified information and special advocates, and safeguards against indefinite detention. The meeting concluded with a discussion focusing on possible next steps in the debate on security detention, which demonstrated a wide variety of views.

INTRODUCTION

Deprivation of liberty for imperative reasons of security without criminal charge, i.e., internment, is an exceptional measure of control that may be taken in armed conflict, whether international or non-international. The peacetime equivalent, commonly referred to as administrative detention, is currently being more and more widely practiced by states for the purpose of protecting state security or public order, particularly in response to acts of terrorism or in order to prevent such acts.

Practice has shown that, whether in armed conflict or outside of it, persons subject to internment or administrative detention frequently lack the most basic procedural tools that would allow them to seek release, and to obtain it where the reasons for detention do not or no longer exist. Detainees are often not adequately apprised of the reasons for their detention and in many cases are not informed at all. Just as importantly, they often have no ability to contest the reasons for their internment/administrative detention or can do so only in proceedings that cannot be said to meet basic standards of impartiality and independence. Access to the outside world, including to family and friends, is habitually denied and, in some cases, persons are held outside of officially recognized places of detention. While detaining authorities argue that curtailment of the above-mentioned and other procedural safeguards is necessary for reasons of national security, they seldom provide more than cursory explanations for why a specific detainee does or may represent such a threat.

Even though the relevant bodies of international law--international humanitarian and human rights law--contain basic provisions establishing the obligations of the detaining authorities, it may be argued that neither legal framework provides sufficient procedural safeguards from abusive deprivation of liberty to persons interned or administratively detained. Furthermore, states have been adopting widely varying national legislation or regulations on internment/administrative detention over the past several years with apparently little reference to the international standards that do exist.

Given the protection problems associated with internment and administrative detention, as well as the fact that this type of deprivation of liberty is coming into more frequent use, the International Committee of the Red Cross (ICRC) and the Frederick K. Cox International Law Center at Case Western Reserve University in Cleveland, Ohio, organized a two-day experts meeting to allow for a substantive exchange of views on the outstanding legal and practical issues associated with security detention among persons knowledgeable in this field. (1) This report reproduces presentations made during the meeting and provides a summary of the main points that emerged during the discussions.

The meeting brought together experts in both international humanitarian law and international human rights law, attending in their personal capacity (a list of the participants is provided in the Annex). It was conducted under the Chatham House Rule; accordingly, there is no attribution of any of the opinions expressed.

PANEL I: SECURITY DETENTION--THE INTERNATIONAL LEGAL FRAMEWORK

SPEAKER'S SUMMARY--SECURITY DETENTION UNDER INTERNATIONAL HUMAN RIGHTS LAW

The first expert presentation in this panel focused on...