Experts Meeting on Security Detention Report

Davidson, Tyler, Gibson, Kathleen, Case Western Reserve Journal of International Law

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 the international human rights standards applicable to security detention. The expert made it clear that international human rights law (HRL) only allows security detention in a very limited set of circumstances, and even when allowed, such detention is subject to many limitations that apply at all times.

Introduction

The conference began with a presentation that addressed the legality of security detention under HRL. The expert said that the general consensus expressed in the human rights instruments was that where security detention is allowed, several requirements apply at all times. These include that detention not be arbitrary, that it be based on grounds and procedures previously established by law, and that it be subject to prompt and effective judicial control, at least on the detainee's initiative. Further, the instruments require that detainees be promptly informed of the reasons for their detention and, if they are foreign citizens, of their right to seek the assistance of a consular official. Finally, the documents provide that no detention may be secret and that all detainees must be registered; that no detainee may be held incommunicado for more than a few days (if even that long); that all detainees have the right to humane treatment, including access to regular medical attention; that detention must be proportional, be no more restrictive and last no longer than is strictly necessary; that there can be no discrimination in the treatment of nationals and foreigners, and that the detention must comply with other norms of international law, particularly international humanitarian law (IHL), if it occurs during an armed conflict. The extent to which this consensus reflects customary international law is a matter to be considered.

Gaps within the Law

Despite the requirements outlined above, the expert still felt that several gaps exist within HRL as it pertains to security detention. Most notable is the requisite threshold of evidence or information required to justify a detention. The expert noted that human rights instruments clearly state that detention must not be "arbitrary," but provide little guidance beyond that point. Second, the human rights instruments lack any explicit requirement of periodic review. However, the expert felt that the case law might address this gap. He noted that the consensus outlined above regarding the requirements for detention under human rights law were derived from many different texts. While some standards appeared in nearly every human rights instrument, others occurred in only a few. This leads to a lack of uniformity, clarity, and certainty under the law, which needs to be addressed.

Sources of International Human Rights Law

The expert went on to describe the main sources of international HRL. These include the International Covenant on Civil and Political Rights (ICCPR), (2) which has 160 state parties, and in the expert's opinion in many respects reflects customary international law. The regional human rights conventions include: The European Convention on Human Rights (ECHR), (3) which has approximately forty-five state parties, the African Charter on Human and Peoples' Rights (AfCHPR), (4) which has over fifty state parties, and the American Convention on Human Rights (ACHR), (5) which has around twenty-five state parties. Further sources are: the Universal Declaration of Human Rights; (6) the United Nations Body of Principles for All Persons in Detention (7) adopted by the U.N. General Assembly in 1988; the American Declaration of Human Rights (which is applied to the U.S. by the Inter-American Commission on Human Rights), (8) and finally, the United Nations Convention Against Torture, (9) which has 140 state parties and the basic provisions of which are considered customary international law.

The Scope of International Human Rights Law

The expert next discussed the scope of application of international human rights law. The expert felt that despite the view of some members of the United States government, the international human rights texts and jurisprudence make it clear that HRL applies in both times of peace and times of armed conflict. The International Court of Justice and other bodies have pointed out that HRL applies concurrently in situations of armed conflict, subject to the lex specialis of IHL. (10) The same conclusion can be reached based on the derogation provisions of several human rights treaties, including the ACHR, which explicitly states that certain rights may be derogated from during times of war). (11) Finally, the expert contended that HRL applies extraterritorially, at the very least where a state has effective control of a person whose rights are affected, as is the case with detention.

A Working Definition of Security Detention

The expert then discussed the definition of security detention. Although the speaker did not come up with a precise or elaborate definition, detention for the purpose of criminal prosecution was excluded. Such detention triggers an array of rights, which may overlap with those granted to security detainees, but are much more extensive. As far as the expert could determine, security detention is resorted to for two main reasons: to remove a danger to security at large, and to allow for interrogations for security or intelligence purposes. The expert also raised the question of whether detention with a view to expulsion or deportation, when the grounds for such detention are related to national security, should be included in this definition.

Permissible Grounds for Detention

The expert next addressed the permissible grounds for security detention, if it is permitted at all. First, as is set forth in the ICCPR, (12) the UDHR, (13) the ACHR, (14) the AfCHPR, (15) and implicitly in the ECHR, (16) detention may not be arbitrary. Second, the grounds for detention must be established by prior law, a requirement set forth in the ICCPR, (17) ACHR, (18) AfCHPR, (19) and the ADHR. (20) The ECHR takes a different approach by enumerating the only permissible grounds for detention. (21) Although security detention is not included in the list, the ECHR allows for derogation, (22) and such derogation may allow for security detention. However, this is not entirely clear. On the other hand, it is fairly clear that the ICCPR, ACHR, AfCHPR, and the ADHR allow security detention, as long as it is not arbitrary, it is previously established by law, and if certain other conditions, discussed infra, are met.

Judicial Control

The expert then discussed the judicial controls applicable to security detention. There must be a judicial proceeding to determine the lawfulness of detention. This is true for all forms and justifications of detention under the ICCPR, (23) ACHR, (24) and the ADHR. (25) It is probably also a requirement under the ECHR, assuming security detention is allowed at all. The AfCHPR (26) and the U.N. Basic Principles (27) require a similar type of control, except that the detainee may also be brought before authorities other than a court.

The Right to be Brought Promptly Before a Judge

The expert next looked at the right to be brought promptly before a judge (even without a request from the detainee). Under the ACHR, this right exists regardless of the type of detention involved. (28) However, under the ECHR (29) and the ICCPR, (30) the right is linked to detention on criminal charges. The U.N. Body of Principles requires that any detention be ordered by or subject to the control of a judicial or other authority. The AfCHPR is silent as to this right.

The Right to Counsel

The right to counsel was also discussed by the expert. He pointed out that it is provided for only in the U.N. Body of Principles, (31) but added that it may be implicit in the other texts. Further, the Body of Principles requires that places of detention be visited regularly by an authority other than the holding authority. (32) Also, both the detainees and the place in which they are held must be registered, and such information must be communicated to the outside world. (33)

The Right to Notification of the Reasons for Detention

The expert then highlighted a common requirement of all the instruments--that the detainee be notified of the reasons for his or her detention. (34) Further, where the detainee is a foreign national, he or she must also be informed of the right to meet with their consular officer. (35)

Treatment of the Detainee

The expert pointed out that detainees may not be subjected to torture or to other cruel, inhuman or degrading treatment or punishment, under both the Convention against Torture and customary international law. The U.N. Body of Principles requires that a detainee be provided with an initial medical examination, and medical care as needed.

Incommunicado Detention

The expert pointed out that no detainee can be held incommunicado for more than a few days at the most. The UN Body of Principles requires that communications between counsel, or family members and the detainee be allowed. (36) The case law of the major human rights treaty regimes confirms this.

Derogation

The expert noted that derogation from the ECHR is a precondition for security detention, if this type of detention is allowed under the European Convention at all. The basic ground for derogation in the ICCPR, (37) ECHR, (38) and the ACHR (39) is the existence of a public emergency threatening the life of the nation. Once it is established that such an emergency exists, the necessity and proportionality of any derogation must also be justified. The right to liberty itself is derogable; however, the judicial controls protecting detainees are not derogable under the ACHR (40) and are considered non-derogable by the Human Rights Committee under the ICCPR. (41) This is almost certainly also the ease under the ECHR, especially having in mind the European Court of Human Rights decisions in Brannigan (42) and Aksoy; (43) in both eases the court emphasized the importance of judicial controls.

Restrictions on Derogations from the Right to Liberty

Subsequently, the expert discussed the topic of proportionality in relation to a derogation from the right to liberty, stressing that a person's liberty cannot be limited any more than is strictly necessary. In the case of A. v. Secretary of State, the U.K. Law Lords, interpreting the ECHR, ruled that the prolonged deprivation of liberty imposed on foreign, but not U.K. terrorist suspects, did not meet the proportionality test set forth in Article 15 of the ECHR. (44) Further, the opinion stated, in dicta, that the same principles would apply with respect to a derogation under the ICCPR. (45)

Discrimination Under the Law

Finally, the expert turned to the concept of discrimination, particularly between nationals and non-nationals. In A v. Secretary of State, the highest court in the U.K. determined that imprisoning foreign nationals believed to represent a security threat, but not U.K. nationals who posed a similar threat, constituted discrimination in violation of Article 15 of the ECHR. (46)

Compensation for Unlawful Detention

Compensation for unlawful detention is required by both the ICCPR and the ECHR.

SPEAKER'S SUMMARY--SECURITY DETENTION UNDER INTERNATIONAL HUMANITARIAN LAW

The second expert presentation in this panel discussed security detention under IHL. The expert pointed out that the IHL rules were designed with a significant amount of inherent flexibility, in order to allow states to "craft" them to meet their needs in practice.

Sources of International Humanitarian Law

The expert began the presentation by discussing the relevant sources of IHL, including the Fourth Geneva Convention; (47) and for state parties, the First and Second Additional Protocols (48) (API and APII). The Fourth Geneva Convention establishes four main requirements related to internment in international armed conflict: the initial standard for detaining someone, (49) review of the initial detention decision, (50) appeal of that decision, (51) and periodic review of the detention. (52) Article 75 of API also adds the requirement of notice to the detainee of the reasons for his or her detention. (53) The expert considered these requirements to be important elements of the internment procedure required in international armed conflict, but useful in non-international armed conflict as well. She added that when one looks at state practice, these are the most common elements observed. She also pointed out that the Fourth Geneva Convention has two sets of rules for security detention: one that applies to detention in the state party's own territory, and another to detention in occupied territory, where there is slightly more flexibility. The expert assumed that the difference in standards exists because the detaining authority is operating outside the structures of its own system. She also noted that law of war treaties provide virtually no guidance regarding security detention in non-international armed conflict.

International Armed Conflict: The Initial Standard for Detention

As to the initial standard for internment in a state party's territory, the expert explained that …

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Publication information: Article title: Experts Meeting on Security Detention Report. Contributors: Davidson, Tyler - Author, Gibson, Kathleen - Author. Journal title: Case Western Reserve Journal of International Law. Volume: 40. Issue: 3 Publication date: Fall 2009. Page number: 323+. © 2009 Case Western Reserve University School of Law. COPYRIGHT 2009 Gale Group.

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