International Human Rights Law and Security Detention
Cassel, Doug, Case Western Reserve Journal of International Law
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. …