Abstract
AbstractThis article explores recent practices of States in relation to counterterrorism and armed conflict detention. Recent cases in the courts of the UK and US are drawn on to demonstrate the continued defence by those States of their administrative detention practices. Furthermore, the practice of other States in adopting new administrative detention laws as part of their counterterrorism strategies is explored. Finally, two examples of contemporary controversies are then considered to show where much of the debate is likely to be focused in the coming years, namely the use of other administrative measures short of detention, particularly assigned residence, and detentions carried out by armed groups that are supported by foreign States.
Highlights
In the wake of 9/11, counterterrorism and armed conflict came to be seen as inseparable, both operationally, in the sense that the US’s and others’ operations against al-Qaeda were part of the broader invasion and occupation of Afghanistan, and legally, in the sense that States sought to justify their counterterrorism policies on the basis that they fell within an armed conflict and were subject to international humanitarian law (IHL)
In order to overcome the very different context of the Hassan and Al-Waheed cases, Lord Sumption appeared to read the Hassan judgement as setting out a general minimum content for Article 5 of the European Convention on Human Rights (ECHR), for which derogation is not necessary: It is in my opinion clear that [the Grand Chamber] regarded the duty of review imposed by articles 43 and 78 of the Fourth Convention as representing a model minimum standard of review required to prevent the detention from being treated as arbitrary
The previous sections have shown that administrative detention remains a key part of many States’ counterterrorism policies, and that even the UK and US, which have wound down their post-9/11 detention practices, continue to defend administrative detention regimes that sit outside the ordinary legal framework
Summary
In the wake of 9/11, counterterrorism and armed conflict came to be seen as inseparable, both operationally, in the sense that the US’s and others’ operations against al-Qaeda were part of the broader invasion and occupation of Afghanistan, and legally, in the sense that States sought to justify their counterterrorism policies on the basis that they fell within an armed conflict and were subject to international humanitarian law (IHL). The US Supreme Court confirmed that the “necessary and appropriate force” authorized by the AUMF provided domestic legal authority to detain,[19] with Congress largely codifying the Obama Administration’s definition of the scope of this authority as covering persons who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” as well as persons who were part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.[20] This standard is seen as grounded in “longstanding law-of-war principles”, premised on a right to detain until the relevant hostilities have ended.[21] Whereas the Supreme Court extended the right of habeas corpus under the Suspension Clause of the US Constitution to Guantanamo detainees,[22] the extent of such judicial review and the evidential and procedural standards applied by the District of Columbia (DC) Circuit Court make it very difficult for detainees effectively to challenge their detention.[23] In addition, the DC Circuit has upheld the government’s refusal to extend the right of habeas review to those detained in Afghanistan (“an active theatre of war”), even if they were captured elsewhere and transferred there.[24]. Alongside this continuity in practice, the last section of this article concludes by suggesting some of the new detention-related issues in the context of counterterrorism that are likely to dominate debates in this area in the coming years
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