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1 Preventive detention: background, history and practice1

A definition of 'preventive detention'5

First: preventive detention permits 'detention'6

Second: preventive detention is an executive order7

Third: preventive detention is for a 'preventive purpose' and not for the purpose of criminal charge, prosecution or interrogation7

Examples of preventive detention can be found in times of war, for the purposes of public order and counter-terrorism9

Preventive detention as a response to Northern Ireland terrorism in the 1970s9

Preventive detention as a response to the First and Second World Wars in the United Kingdom and United States10

Preventive detention for the purpose of public order across the world11

Binding over as a form of preventive detention12

'Dangerous person' preventive detention12

Preventive detention of the mentally ill, vagrants, drug addicts and infectious15

Immigration detention for a preventive purpose16

The legality of preventive detention in international law16

The structure of this monograph22

2 The right to personal liberty in international human rights law as a legal framework for the consideration of state preventive detention laws34

The history of personal liberty34

An interpretation of Article 9 ICC PR39

The prohibition on arbitrary arrest and detention in Article 9(1) ICCPR imposes a higher standard than the principle of legality40

The meaning of the prohibition on arbitrary detention was further clarified in the Mandate of the Working Group on Arbitrary Detention43

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 Committee44

The Human Rights Committee provided some early guidance on the meaning of Article 9(1) ICCPR44

Arbitrary detention1 includes elements of 'inappropriateness', 'injustice', 'lack of predictability' and 'necessity': Hugo van Alphen46

Arbitrary detention' also requires necessity and proportionality: A v Australia47

The Human Rights Committee has emphasised the requirement of 'proportionality' in applying Article 9(1) ICCPR on several occasions49

The meaning of the principle of proportionality in Article 9(1) ICCPR in international law and in times of terrorism50

Article 5 ECHR as an alternative legal framework for the consideration of state preventive detention laws52

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 proportionality56

Minimum procedural human rights safeguards apply under Article 9(2)-(5) ICCPR and Article 5(2)-(5) ECHR57

The right to be informed of the reasons for detention57

The right to be brought promptly before a judge or other judicial officer, right to trial within a reasonable time58

Length of pre-trial detention: does it apply to preventive detention?60

The wider application of Article 5(3) ECHR61

The right to challenge detention through habeas corpus or similar proceeding65

The right to compensation for unlawful arrest or detention66

The prohibition on arbitrary arrest and detention and the principle of proportionality in this monograph66

3 The preventive detention of suspected terrorists pursuant to a state of emergency in international human rights law79

Detention pursuant to a state of emergency in international human rights law79

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 be 'actual or imminent'82

A state of emergency must have effects that involve the entire State85

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 emergency90

Habeas corpus during a state of emergency under the ICCPR91

Habeas corpus in non-binding instruments92

A state of emergency must also comply with the principle of consistency93

A state of emergency should not be declared to implement preventive detention as a counter-terrorism strategy94

4 Legitimate and illegitimate purposes of preventive detention102

A framework by which to assess State counter-terrorism laws103

The approach to assessing legitimate purpose in this monograph is informed by the margin of appreciation doctrine104

Example: the use of the margin of appreciation doctrine in Australian law107

The application of the margin of appreciation doctrine to assess the legitimate purpose of preventive detention in this monograph109

Claims that preventive detention could serve an illegitimate purpose110

Preventive detention based on group profiling would not be for a legitimate purpose110

A preventive detention order issued against a 'dangerous person' would not be for a legitimate purpose113

The claim that preventive detention can lead to arbitrary detention as a consequence of insufficient human rights safeguards117

Claims that preventive detention could serve a legitimate purpose119

The argument that preventive detention serves a purpose unable to be met by the criminal law122

The principle of proportionality to assess whether preventive detention can serve a legitimate or illegitimate purpose126

5 The way forward: a model law for the detention of suspected terrorists within a criminal law framework136

Features of a pre-charge detention model based in the criminal law137

Length of detention137

The purpose of pre-charge detention138

'Reasonable suspicion' as the grounds for detention under the pre-charge detention model141

Criminal propensity and associations as the basis for pre-charge detention in terrorist cases142

Protecting sensitive and national security facts and information in terrorist cases144

Pre-charge detention should provide for a relaxation of evidentiary rules and adjustment to other rules of evidence146

Pre-charge detention should be a measure of last resort147

Pre-charge detention situates detention within State criminal law149

Adjusting the criminal law is not unprecedented in States151

The United Kingdom has changed from preventive detention to a criminal law detention model152

The United Nations and International Commission of Jurists recommend a criminal law framework153

Pre-charge detention provides established human rights procedural safeguards to a person in detention154

Summary of the features of the proposed pre-charge detention model155

6 Conclusions as to the preventive detention of suspected terrorists in international law163

The imperative of state compliance with international human rights law, particularly in a time of global terrorism165

Preventive detention can be used for a legitimate purpose, but also for an illegitimate purpose168

Pre-charge detention is a less intrusive measure than preventive detention169

B ibliography173

Index198