1 Preventive detention: background, history and practice

A definition of 'preventive detention'

First: preventive detention permits 'detention'

Second: preventive detention is an executive order

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

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

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

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

Preventive detention for the purpose of public order across the world

Binding over as a form of preventive detention

'Dangerous person' preventive detention

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

Immigration detention for a preventive purpose

The legality of preventive detention in international law

The structure of this monograph

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

The history of personal liberty

An interpretation of Article 9 ICC PR

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

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

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 Committee

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

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

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

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

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

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

Article 5(1 )(c) ECHR requires detention to be linked to a 'concrete and specific offence'

Article 5(1 )(c) ECHR incorporates the principle of proportionality

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

The right to be informed of the reasons for detention

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

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

The wider application of Article 5(3) ECHR

The right to challenge detention through habeas corpus or similar proceeding

The right to compensation for unlawful arrest or detention

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

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

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

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?

The principle of exceptional threat requires the threat to be 'actual or imminent'

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

A state of emergency can only be declared if the measures are strictly necessary (the condition of strict necessity)

A State must declare with the principle of non-derogability when declaring a state of emergency

Habeas corpus during a state of emergency under the ICCPR

Habeas corpus in non-binding instruments

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

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

4 Legitimate and illegitimate purposes of preventive detention

A framework by which to assess State counter-terrorism laws

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

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

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

Claims that preventive detention could serve an illegitimate purpose

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

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

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

Claims that preventive detention could serve a legitimate purpose

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

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

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

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

Length of detention

The purpose of pre-charge detention

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

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

Protecting sensitive and national security facts and information in terrorist cases

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

Pre-charge detention should be a measure of last resort

Pre-charge detention situates detention within State criminal law

Adjusting the criminal law is not unprecedented in States

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

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

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

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

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

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

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

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

B ibliography

Index