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. …