Saturday, March 12, 2011

African lessons on terror detention

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

On 7 March President Barack Obama signed an executive order facilitating the indefinite detention of a group of Guantánamo prisoners. As IntLawGrrl Beth Van Schaack posted, the order introduces a new system of periodic review of Guantanamo prisoners as well as the resumption of military trials.
Human rights activists view this as a step backwards.
I believe South Africa's Apartheid experience has a special relevance and resonance for the so-called ‘war on terror’.
Much of the current concern regarding the impact of security legislation on human rights centers on the treatment of detainees in places of detention. "The Regulation of Detention in the Age of Terror - Lessons from the Apartheid Experience", an article that my co-author James Fowkes and I published in 2009 in the South African Law Journal, considered the regulation of detention during Apartheid to see what principles or lessons can be gleaned from that experience that can be useful for regulating detention in the context of terrorism.
Following a summary of the most important security legislation during Apartheid, the article examines the nature of the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). These Guidelines, drawn up in 2002 by the African Commission on Human and Peoples' Rights (logo below left), aimed at the punishment and prevention of torture in Africa. It is the aim of the Robben Island Guidelines to assist African countries in designing systems that will be effective in combating torture. It is our contention that the Apartheid experience reveals several respects in which they are not an adequate guide. Whereas the monitoring mechanisms of the Guidelines should be taken seriously, they can be improved upon.
The paper examines the behaviour of the Apartheid judiciary and its performance in providing oversight of the executive’s actions. It then turns to consider the performance of the Apartheid judiciary in two areas key to court regulation of torture:
► The approach to the admissibility of evidence, and
► The weighing of fact in adjudicating torture allegations.
We conclude that even in authoritarian systems threats to national security (whether real or imaginary) seldom fall exclusively within the domain of the executive. It is therefore not naïve to believe that the law can have a positive effect on the way detainees are treated. We offer proposals in the article, as a contribution to the African effort to design systems that will be resilient to practices such as torture in security situations. We believe our proposals have a wider significance and can be a resource upon which lawyers all over the world can draw.


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