International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide
48 Pages Posted: 11 Sep 2007 Last revised: 11 May 2008
Under what circumstances does international law permit a state to detain terrorism suspects not captured in a theater of combat? There continues to be confusion on this question, but two dominant strands of thought have emerged. One asserts that the law of armed conflict applies to permit extended detention with minimal legal process; the other claims that human rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one system or the other - armed conflict or exclusively criminal - international actors have been groping for new options. Based on a review of that practice, this Article argues that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder - if the law of armed conflict does not apply, then the criminal law must - is mistaken. Although the criminal law is an important tool for detaining terrorism suspects, human rights law also permits states to detain them administratively. Moreover, administrative detention better balances the liberty and security interests at stake in the context of particular terrorism suspects. Yet the legal parameters of security-based administrative detention are underdeveloped in international law. This Article thus begins the project of refining that law as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their security needs.
Keywords: international law, terrorism, detention
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