Experts Meeting on Security Detention Report

By Davidson, Tyler; Gibson, Kathleen | Case Western Reserve Journal of International Law, Fall 2009 | Go to article overview

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. 

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