Security Detention: The Legal Uncertainties of an Underdeveloped Framework

248281-detentionSecurity detention has been a long-standing custom in times of armed conflict, but it gained major public attention when the U.S. government started detaining suspected terrorists at Guantanamo Bay. Its practice generates much controversy around the world, and raises grave concerns regarding threats to liberty and the protection of every person’s right to a fair trial.

Security detention is the deprivation of liberty of an individual, ordered by the executive branch of a State rather than its judiciary, for reasons pertaining to the security of that State, without criminal charges being brought against the detainee. It is a preventive measure, not a punitive one, and should only be taken in exceptional circumstances. Customary international law seems to dictate that security detention ends when the reasons that necessitated internment cease to exist. At the latest, the detainee should be released as soon as possible after the close of active hostilities. This has been one of the most difficult issues in the U.S. “War on Terror,” as terror suspects face potentially indefinite detention due to the enduring nature of the conflict.

Security detention should not be confused with other types of deprivations of liberty. It differs from deprivations of liberty for the purposes of future criminal proceedings and from the internment of prisoners of war. Indeed, prisoners of war benefit from separate rights, duties and protections provided to them by the Third Geneva Convention in international armed conflicts (IACs). It is also distinct from assigned residence, a looser form of deprivation of liberty, whereby the individual is allowed to remain in his own home or another assigned residence but whose freedom of movement is limited. Furthermore, security detention may not be used for intelligence gathering, and cannot be imposed simply because it is convenient or useful for the detaining State.

In order to resort to security detention measures, States must have the authority, i.e. a legal basis, to do so. In IACs, many agree that International Humanitarian Law (IHL) authorizes security detention. Although neither the Geneva Conventions nor the Additional Protocols mention security detention per se, article 42 of Geneva Convention IV stipulates that “internment may be ordered (…) if the security of the Detaining Power makes it absolutely necessary.” Similarly, in situations of occupation, article 78 of that same Convention authorizes internment measures if the Occupying power “deems it necessary, for imperative reasons of security.” Furthermore, the detaining power must provide for an initial and periodic review (every 6 months) by an administrative board or an appropriate court to ensure that the detention remains justified.

In non-international armed conflicts (NIACs), on the other hand, the debate is ongoing. Some commentators argue that IHL does provide authorization to detain in a NIAC, as it is implicit in both common article 3 of the Geneva Conventions and in Additional Protocol II, and is generally recognized as part of customary international law. However, others argue that IHL does not provide a legal basis to detain in NIACs. Such is the position recently taken by the UK High Court of Justice in Serdar Mohammed v. Ministry of Defence. In this case, a suspected Taliban Commander was captured by U.K. military forces in Afghanistan and detained in British military bases there for 110 days, during which he was given no opportunity to have the lawfulness of his detention reviewed. The Court held that his detention was unlawful, as was the U.K.’s long-term detention policy in Afghanistan as a whole. The detention was contrary to article 5 of the European Convention on Human Rights, notably due to the lack of a legal basis for security detention in the IHL applicable to NIACs. “All that seems contemplated or implicit in [Common Article 3 and Additional Protocol II], is that during [NIACs] people will in fact be detained.” This does not necessarily mean, however, that security detention in this type of conflict is prohibited. Instead, as the Court explained rather persuasively, it would have to be based “on the law of the state on whose territory the armed conflict is taking place, or under some other applicable law.”

There seems to be a growing consensus that, in order for a party to use security detention during such a conflict, it must be dictated by imperative reasons of security that are prescribed by law. Applying this high standard provides increased protection for detainees and minimizes the risk of abuse by the detaining power. Furthermore, the ICRC argues that the initial and periodic review rule should also apply in NIACs as a matter of applicable international human rights law. The International Covenant on Civil and Political Rights, for instance, establishes that an individual may be deprived of liberty only “on such grounds and in accordance with such procedures as are established by law” (Article 9(1)).

The importance of the human rights at play in security detention, notably the right to liberty and due process, cannot be understated. The U.S. and the U.K. actively make use of security detention, and they are not alone. Other countries, such as Israel, Turkey or Canada have been taking such measures as well. With several armed conflicts underway across the world, is there a need for more regulation and an increased protection of the persons whose rights are affected? Given the lack of a robust set of protections for security detainees under IHL, should the detaining power be applying human rights standards?

One response to “Security Detention: The Legal Uncertainties of an Underdeveloped Framework

  1. Pingback: When Does War End? | Humanity in War·

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