This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally derogates from the right to liberty under the European Convention on Human Rights. The article concludes that if preventive detention for security purposes is to be allowed at all, its use must be kept to an absolute minimum, and the European model should be followed, allowing detention only by formal derogation during national emergency, and then only to the extent and for the time strictly required.
[I]f so-called preventive detention is used, for reasons of public security, ... it must not be arbitrary, and must be based on grounds and procedures established by law ..., information of the reasons must be given ... and court control of the detention must be available ... as well as compensation in the case of a breach.... (1) Although written a quarter century ago and limited to one treaty--the International Covenant on Civil and Political Rights--these words of the Human Rights Committee capture most of what might now be described as the "consensus" of international human rights law (IHRL) instruments with regard to constraints on security detention. (2)
By "security detention," I refer to detention of persons detained preventively as threats to security. (3) I thus exclude detention for purposes of criminal prosecution (which would trigger additional international rights, such as the right to speedy trial or release). (4) All elements of the "consensus" of norms outlined below also apply to detention for purposes of deportation or expulsion on security grounds (although, under both international and domestic law, additional requirements apply to immigration-related detentions). (5)
In most cases, the "consensus" of norms in IHRL instruments applicable to security detentions may represent customary international law. However, this "consensus" does not consider the extent of state practice and opinio juris to determine whether all elements of the consensus amount to customary law.
Where security detention is permitted--outside Europe--the consensus of IHRL instruments is that security detention must comply with the following requirements:
* Grounds. The detention must not be arbitrary and must be based on grounds previously established by law.
* Procedures. The detention must be based on procedures previously established by law and:
** Must be subject to prompt and effective judicial control, at least on the initiative of the detainee;
** Must inform the detainee of the reasons for his detention and, if he is foreign, of his tight to communicate with his consulate for assistance;
** Must not be incommunicado for more than a few days;
** Must be registered; and
** Must afford the detainee a fair judicial hearing on the lawfulness of his detention.
* Extent. The detention must be proportional; it must be no more restrictive or prolonged than strictly required by the exigencies of the security situation.
* Equality. The detention must be non-discriminatory, including as between citizens and foreigners.
* Treatment of Detainee. Must be humane and with access to regular medical evaluation and treatment.
* Compensation. The detainee must have a right to be compensated for unlawful detention.
* Other International Law. The detention must comply with all other applicable requirements of international law, including, in armed conflict, International Humanitarian Law (IHL).
Provided these requirements are satisfied, IHRL (outside Europe) permits security detention. Inside Europe, security detention is not permitted except, if at all, by derogation from the European Convention on Human Rights. This state of the law merits further reflection: is security detention really necessary? Should there be, at least, higher threshold standards required to justify it?
Additional gaps in current IHRL include the level and quality of information or evidence required to justify security detention; the need for explicit requirements for periodic administrative and judicial review; and the lack of clarity, uniformity, and certainty in existing IHRL requirements.
I derive the elements of this IHRL consensus on security detention from the following instruments:
* International Covenant on Civil and Political Rights (ICCPR), (6) joined by 162 States Parties; (7)
* Universal Declaration of Human Rights (8) (UDHR) (largely evidence of customary international law); (9)
* United Nations Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT), (10) joined by 145 States Parties; (11)
* United Nations Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (12) (arguably evidence of customary international law); (13) and
* Regional instruments:
** European Convention on Human Rights (ECHR), (14) joined by 47 States Parties; (15)
** American Convention on Human Rights (ACHR), (16) joined by 24 States Parties; (17)
** American Declaration of the Rights and Duties of Man (ADHR), (18) an "authoritative interpretation" of the human rights commitments in the Charter of the Organization of American States (OAS), (19) used by the Inter-American Commission on Human Rights as the yardstick to monitor all American States that are not parties to the ACHR; (20) and
** African Charter of Human and Peoples' Rights (ACHPR), (21) joined by 53 States Parties. (22)
This IHRL consensus applies in both peace and war (although in war it may be modified by the lex specialis of IHL). (23) Also, despite objections by the U.S. (24) and Israel, (25) the IHRL consensus also governs a State's extraterritorial detentions of persons within the effective custody and control of the State. (26) This does not extend, however, to extraterritorial detentions carried out by state forces acting for the United Nations under a Chapter VII Security Council mandate. (27)
GROUNDS FOR SECURITY DETENTION
Everywhere but Europe
Outside Europe, the IHRL consensus on the grounds for security detention can be stated in two simple points. First, the detention must not be arbitrary. (28) Second, the detention must be on grounds previously established by law. (29) An early formulation by the Human Rights Committee, quoted at the outset of this article, explicitly contemplates security detention, albeit subject to conditions:
[I]f so-called preventive detention is used, for reasons of public security, ... it must not be arbitrary, and must be based on grounds and procedures established by law..., information of the reasons must be given..., and court control of the detention must be available ... as well as compensation in the case of a breach.... (30) A recent report by the Inter-American Commission on Human Rights similarly recognizes that deprivation of liberty may be justified in connection with the "administration of state authority" outside the criminal justice context, "where measures of this nature are strictly necessary." (31)
Generally, under IHRL, the question is not whether security detention is permitted, but on what grounds, pursuant to what procedures, and under what conditions such detention would be acceptable.
A notable gap in current IHRL is the absence of a standard for the extent or quality of evidence needed to justify a security detention. The requirement that the detention not be "arbitrary" means that there must be some reason or evidentiary basis for the detention. But how much? Should the legal standard be "reasonable suspicion"? Or "some evidence"? Or "probable cause"? Something else? What about the evidentiary basis? If a "some evidence" standard is too low, (32) how much more should be required?
And should the standard be the same for the initial arrest and the subsequent, possibly prolonged detention? As the detention extends beyond a brief period--months to years--the deprivation of liberty correspondingly becomes more serious. Should the standard for continued detention therefore be higher than for initial detention?
In Europe the picture is more complicated. ECHR Article 5, which guarantees the fight to liberty, prohibits security detention. But can security detention be permitted by derogation from Article 5?
In its very first judgment in 1961, the European Court of Human Rights upheld Ireland's security detention of an IRA activist, carried out by derogation from Article 5. (33) More than four decades later, however, the British Law Lords interpreted the ECHR, and the jurisprudence of the European Court, to rule that a British security detention law enacted by derogation from Article 5 failed to meet the tests of proportionality and nondiscrimination required of derogations, and was thus incompatible with the ECHR. (34) In light of the recent British ruling, it is unclear whether prolonged security detention can still be justified by derogation from the ECHR.
Right to liberty under the ECHR
Unlike the other IHRL instruments surveyed here, the ECHR enumerates an exclusive list of permissible grounds for detention. Article 5(1) provides that "[n]o one shall be deprived of his liberty save in the following eases...." (35) It then lists six grounds. (36) Of the six grounds, however, only two are plausibly relevant to security detention. However, neither was intended, or has been interpreted, to permit security detention.
One of these provisions is Article 5.1 (b), which...