Counter-terrorism and the detention of suspected terrorists : preventive detention and international human rights law / Claire Macken.
2011
K5437 .M335 2011 (Map It)
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Author
Title
Counter-terrorism and the detention of suspected terrorists : preventive detention and international human rights law / Claire Macken.
Published
Milton Park, Abingdon, Oxon, England ; New York : Routledge, [2011]
Copyright
©2011
Call Number
K5437 .M335 2011
ISBN
9780415550512 (hbk. : alk. paper)
0415550513 (hbk. : alk. paper)
9780203819258 (ebk.)
020381925X (ebk.)
0415550513 (hbk. : alk. paper)
9780203819258 (ebk.)
020381925X (ebk.)
Description
xxii, 208 pages ; 24 cm.
System Control No.
(OCoLC)432989929
Summary
"In a regional, national and global response to terrorism, the emphasis necessarily lies on preventing the next terrorist act. Yet, with prevention comes prediction: the need to identify and detain those considered likely to engage in a terrorist act in the future. The detention of 'suspected terrorists' is intended, therefore, to thwart a potential terrorist act recognising that retrospective action is of no consequence given the severity of terrorist crime. Although preventative steps against those reasonably suspected to have an intention to commit a terrorist act is sound counter-terrorism policy, a law allowing arbitrary arrest and detention is not. A State must carefully enact anti-terrorism laws to ensure that preventative detention does not wrongly accuse and grossly slander an innocent person, nor allow a terrorist to evade detection. This book examines whether the preventative detention of suspected terrorists in State counter-terrorism policy is consistent with the prohibitions on arbitrary arrest and detention in international human rights law. This examination is based on the 'principle of proportionality'; a principle underlying the prohibition on arbitrary arrest as universally protected in the Universal Declaration of Human Rights, and given effect to internationally in the International Covenant on Civil and Political Rights, and regionally in regional instruments including the European Convention on Human Rights. The book is written from a global counter-terrorism perspective, drawing particularly on examples of preventative detention from the UK, US and Australia, as well as jurisprudence from the ECHR"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages [173]-197) and index.
Record Appears in
Gift
Purchased from the income of the Soll Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of Contents
Preface
ix
Acknowledgements
xii
Table of cases
xiii
Table of legislation
xvii
Table of treaties
xix
1.
Preventive detention: background, history and practice
1
A definition of `preventive detention'
5
First.
Preventive detention permits `detention'
6
Second.
Preventive detention is an executive order
7
Third.
Preventive detention is for a `preventive purpose' and not for the purpose of criminal charge, prosecution or interrogation
7
Examples of preventive detention can be found in times of war, for the purposes of public order and counter-terrorism
9
Preventive detention as a response to Northern Ireland terrorism in the 1970s
9
Preventive detention as a response to the First and Second World Wars in the United Kingdom and United States
10
Preventive derention for the purpose of public order across the world
11
Binding over as a form of preventive detention
12
`Dangerous person' preventive detention
12
Preventive detention of the mentally ill, vagrants, drug addicts and infectious
15
Immigration detention for a preventive purpose
16
The legality of preventive detention in international law
16
The structure of this monograph
22
2.
The right to personal liberty in international human rights law as a legal framework for the consideration of state preventive detention laws
34
The history of personal liberty
34
An interpretation of Article 9 ICCPR
39
The prohibition on arbitrary arrest and detention in Article 9(1) ICCPR imposes a higher standard than the principle of legality
40
The meaning of the prohibition on arbitrary detention was further clarified in the Mandate of the Working Group on Arbitrary Detention
43
The meaning of the prohibition on arbitrary detention in Article 9(1) ICCPR can be further ascertained from several key cases of the Human Rights Committee
44
The Human Rights Committee provided some early guidance on the meaning of Article 9(1) ICCPR
44
`Arbitrary detention' includes elements of `inappropriateness', `injustice', `lack of predictability' and `necessity': Hugo van Alphen
46
`Arbitrary detention' also requires necessity and proportionality: A v Australia
47
The Human Rights Committee has emphasised the requirement of `proportionality' in applying Article 9(1) ICCPR on several occasions
49
The meaning of the principle of proportionality in Article 9(1) ICCPR in international law and in times of terrorism
50
Article 5 ECHR as an alternative legal framework for the consideration of state preventive detention laws
52
Article 5(1)(c) ECHR requires detention to be linked to a `concrete and specific offence'
53
Article 5(1)(c) ECHR incorporates the principle of proportionality
56
Minimum procedural human rights safeguards apply under Article 9(2)-(5) ICCPR and Article 5(2)-(5) ECHR
57
The right to be informed of the reasons for detention
57
The right to be brought promptly before a judge or other judicial officer, right to trial within a reasonable time
58
Length of pre-trial detention: does it apply to preventive detention?
60
The wider application of Article 5(3) ECHR
61
The right to challenge detention through habeas corpus or similar proceeding
65
The right to compensation for unlawful arrest or detention
66
The prohibition on arbitrary arrest and detention and the principle of proportionality in this monograph
66
3.
The preventive detention of suspected terrorists pursuant to a state of emergency in international human rights law
79
Detention pursuant to a state of emergency in international human rights law
79
The principle of exceptional threat - is a terrorist threat the kind of emergency that could justify the declaration of a state of emergency in international law?
80
The principle of exceptional threat requires the threat to he `actual or imminent'
82
A state of emergency must have effects that involve the entire State
85
A state of emergency can only be declared if the measures are strictly necessary (the condition of strict necessity)
88
A State must declare with the principle of non-derogability when declaring a state of emergency
90
Habeas corpus during a state of emergency under the ICCPR
91
Habeas corpus in non-binding instruments
92
A state of emergency must also comply with the principle of consistency
93
A state of emergency should not he declared to implement preventive detention as a counter-terrorism strategy
94
4.
Legitimate and illegitimate purposes of preventive detention
102
A framework by which to assess State counter-terrorism laws
103
The approach to assessing legitimate purpose in this monograph is informed by the margin of appreciation doctrine
104
Example: the use of the margin of appreciation doctrine in Australian law
107
The application of the margin of appreciation doctrine to assess the legitimate purpose of preventive detention in this monograph
109
Claims that preventive detention could serve an illegitimate purpose
110
Preventive detention based on group profiling would not be for a legitimate purpose
110
A preventive detention order issued against a `dangerous person' would not be for a legitimate purpose
113
The claim that preventive detention can lead to arbitrary detention as a consequence of insufficient human rights safeguards
117
Claims that preventive detention could serve a legitimate purpose
119
The argument that preventive detention serves a purpose unable to be met by the criminal law
122
The principle of proportionality to assess whether preventive detention can serve a legitimate or illegitimate purpose
126
5.
The way forward: a model law for the detention of suspected terrorists within a criminal law framework
136
Features of a pre-charge detention model based in the criminal law
137
Length of detention
137
The purpose of pre-charge detention
138
`Reasonable suspicion' as the grounds for detention under the pre-charge detention model
141
Criminal propensity and associations as the basis for pre-charge detention in terrorist cases
142
Protecting sensitive and national security facts and information in terrorist cases
144
Pre-charge detention should provide for a relaxation of evidentiary rules and adjustment to other rules of evidence
146
Pre-charge detention should be a measure of last resort
147
Pre-charge detention situates detention within State criminal law
149
Adjusting the criminal law is not unprecedented in States
151
The United Kingdom has changed from preventive detention to a criminal law detention model
152
The United Nations and International Commission of Jurists recommend a criminal law framework
153
Pre-charge detention provides established human rights procedural safeguards to a person in detention
154
Summary of the features of the proposed pre-charge detention model
155
6.
Conclusions as to the preventive detention of suspected terrorists in international law
163
The imperative of state compliance with international human rights law, particularly in a time of global terrorism
165
Preventive detention can be used for a legitimate purpose, but also for an illegitimate purpose
168
Pre-charge detention is a less intrusive measure than preventive detention
169
Bibliography
173
Index
198