Tuesday, November 6, 2007

Even more on Habeas Corpus

In response to Michelle’s post my view is that there is a number of categories of norms in human rights law – (i) jus cogens norms of which there are very few and which are, clearly, non-derogable whether a treaty says so or not; (ii) expressly non-derogable norms within the scheme of a particular treaty; (iii) norms that are not expressly non-derogable but which the bodies seised with responsibility for interpreting the treaties have found to be non-derogable; and (iv) derogable norms. I don’t think one could say that the right to challenge the lawfulness of one’s detention – which is satisfied in common law countries by the writ of habeas corpus – falls into any category except the third above. Is this customary international law then? I’m reluctant to say so. I think of it more as treaty law inasmuch as the treaty-interpreters (i.e. the institutions identified within the treaty itself as having responsibility for interpreting its terms) are simply elaborating on the meaning of the treaty much like constitutional courts do with constitutional norms in domestic systems.
Diane then, in a comment to Michelle’s post, asks whether the non-derogability of the right to challenge the lawfulness of one’s detention means that “there never can be emergency detention, regardless of circumstances? Is there no accommodation of delay in hearings on detention, at least in the most extreme circumstances?” My argument is certainly that the non-derogability of the right does not mean that there can never be extended detention – in fact, my reading of the right to be free from arbitrary detention in international law (heavily influenced, by the way, by the work of Claire Macken and particularly her article “Preventive Detention and the right to personal liberty and security under Article 5 ECHR” (2006) 10(3) Int. J. of Human Rights 195) is that preventative detention including of suspected terrorists is permissible on public order and national security grounds but only if it is capable of being challenged in court. It might be useful to quote a short extract of my argument from the J. Conflict and Security Law that I mentioned yesterday to show the thrust of my reading (footnotes omitted):

The international system has sufficient inbuilt flexibility that, coupled with appropriate derogations where necessary, would allow for an effective system of detention in which detainees could challenge the lawfulness of their detention to be constructed.

In such a system it would, if necessary, be possible to have extensive grounds upon which one could be taken into detention including, as international law already permits, suspicion of involvement in international crime (including crimes against humanity into which many terrorist actions can certainly be said to fit) and preventative detention to protect against future involvement. The duration of detention prior to trial would be entirely dependent on the exigencies of the circumstances of the case which could be tested by a detainee through a habeas corpus petition and, where there was to be no trial or charge, the existence of an effective review procedure may be sufficient to deprive the detention of any prima facie arbitrary character, depending on the nature and weight of the evidence underlying the suspicion against the detainee as assessed by a court (or an arbiter with the characteristics of a court). Such a review procedure would either consist of habeas corpus petitions or an equivalent review mechanism in which the detainee would have the capacity to substantively challenge the lawfulness of their detention in an adversarial procedure, before an objective arbiter with the power to order to release from detention. In recognition of the sensitive nature of the information that may form the basis for the decision to detain, international law allows for a number of variations from ‘the norm’ including, for example, the provision of Special Representatives, the reasonability of suspicion of involvement being assessed on a 'balance of probabilities’ basis, and so on. International law allows for substantial variations on ‘normal’ procedure where those variations are strictly required by the exigencies of the situation. Instead of simply asserting the necessity to detain an individual or to deny them access to judicial oversight, therefore, a system based on
international law principles would require a case for such variations to be made out to the satisfaction, where necessary, of a court of law.

Detainees who have recourse to such a review procedure could be tried for international crimes in a military commission if necessary, provided the commission complies with international legal standards and, most importantly, in the ‘War on Terrorism’, they could be interrogated for information. This would certainly be a variation from the ‘norm’, however it would not extend to allowing the use of 'coercive interrogation techniques’ or torture, because of the prohibition of such conduct not only by the UN Convention against Torture but also by jus cogens. This, combined with the right to an effective and substantive review of the lawfulness of detention, appears to satisfy both rights-protection and national security needs to the extent possible (for one can never absolutely protect against terrorism or absolutely protect against rights abuses; one can merely try to design and use a system that minimises the threat of both to the extent possible).

1 comment:

Claire Macken said...

Dear Fiona and readers,

I think your points from the Journal of Conflict and Security Law are spot on. I've been recently writing on counter-terrorism models: preventive detention the logical conclusion within "intelligence model", that is, a focus on intelligence agencies with less emphasis on enforcement/policing and criminal justice procedures. (In Australia we are clearly within this model, the UK would best be described "criminal justice", the US a "war model" - there are other names but you get the idea ...)

If preventive detention was shifted to a "criminal justice" model with appropriate safeguards including summary of reasons and judicial review is the only way a State could comply with international covenant/ rule of law/ fundamental human rights.

There is a problem though. Extrajudicial preventive detention is absent judicial review because in emergency/terrorism situations, disclosing reasons for arrest as the necessary prerequisite for a habeas corpus or other judicial challenge could raise serious concerns on national security/ public interest grounds. Further, preventive detention is often a measure to "stop time" for investigative purposes or until an imminent threat passes - enforcement/investigative agencies would say that that pushing detainees through any Court is extremely difficult if not impossible. Also, criminal charge based on planning and preparatory conduct is fraught with the possibility of a collapsed prosecution - in Australia we have just had another one this week (see http://www.abc.net.au/news/stories/2007/11/16/2093146.htm an article I've written in the Australian ABC News, also http://www.abc.net.au/news/stories/2007/08/03/1996156.htm)

I'm still thinking of a solution, so if you have any suggestions -- !! -- but a form of pre-charge detention within a criminal law model and subject to appropriate review (perhaps following along the lines of, but not precisely, the UK) would be preferable.

Btw, I just stumbled across this site, how terrific, and who doesn't pink?
Best wishes
Claire Macken