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9 - England: Preventive Detention and Due Process
- Hallie Ludsin
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- Preventive Detention and the Democratic State
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- 05 March 2016
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- 08 January 2016, pp 261-298
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Summary
Having identified the “deviant others” targeted for preventive detention and other liberty restrictions in the previous chapter, this chapter establishes that England has carved out an inferior legal system that grants diminished rights to suspected terrorists and persons suffering from antisocial personality disorder. The chapter begins by responding to the jurisdictional issues raised in the policy discussions in Chapter 2 before turning to the due process rights that accrue to detainees. It then assesses whether anyone can be held in indefinite detention. This chapter finishes with a big-picture account of preventive detention in England, noting England's fall down preventive detention's slippery slope and the extent of detainees’ diminished rights. It also highlights the gross discrimination between security detainees and mental health detainees – a discrimination endorsed by the Convention.
England is not currently facing an emergency, which means it does not have the power to detain suspected terrorists for more than approximately 14 hours a day. The Terrorism Prevention and Investigation Measures (TPIM) notices fall just short of full preventive detention under English and Convention law, although this book continues to treat overnight residency restrictions as a form of preventive detention. Pre-charge detention normally would not be considered preventive detention because it is intended to buy the police time to investigate terrorism crimes. In practice, however, the government uses it to circumvent the criminal justice system and hold detainees in preventive detention. For these reasons, TPIM notices that order detention and pre-charge detention contribute to England's transformation of preventive detention from an extraordinary emergency measure to an ordinary law enforcement measure that establishes an inferior legal system for its targets.
Detention jurisdiction
Following the outline described in Chapter 2, this section examines the issues of how England chooses whom to detain, who is responsible for that choice and what type of law is applied to that decision. As a reminder, the first issue highlights the assumptions the law makes about who is dangerous. The latter two determine the extent of due process rights England owes detainees.
Who may be detained
The Convention offers little guidance on how states should choose which dangerous persons to detain.
5 - India's Current Preventive Detention Legislation
- Hallie Ludsin
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Summary
Despite the Emergency-era abuses of preventive detention, India could not envision governing without access to this power. Rather, parliament sought to limit detention through a constitutional amendment, limitations the government has thwarted. India managed without a general preventive detention law – one that allowed detention on all grounds permitted by the Constitution – only for a two-year period. Since then, it not only adopted a law nearly identical to the Maintenance of Internal Security Act (MISA) but passed additional detention legislation targeting specific crimes. India currently has four permanent, national detention laws – the Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA), the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, the National Security Act and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. COFEPOSA is the only legislation that predates the emergency, and Parliament never considered revoking it even as it reviled detention under MISA. The government enacted each piece of legislation using the traditional justifications for a state of exception although the Constitution allows detention absent an emergency. It seemed to be trying to give the impression that detention is an extraordinary measure even though the Constitution, with the help of judicial interpretation, allows it to be used in ordinary criminal situations, a point picked up in the next chapter. Over the course of its nearly 70-year history, India has transformed preventive detention from a colonial, despotic measure for control to a necessary evil in an emergency to an ordinary law enforcement tool.
Most of this chapter describes the debates around each of the four current preventive detention laws. These debates highlight the continuity in the government's claim of a state of exception even as its democracy has matured and its security stabilized. They identify who India considers to be its deviant others and, thus, less deserving of rights. They also establish the core beliefs that led India to the bottom of preventive detention's slippery slope – beliefs that later chapters show are not necessarily unique to India.
Current legislation
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
The early 1970s saw a marked decline in India's economy that, by 1972–73, led to serious public discontent: “Economic recession, unemployment, price rise and scarcity of goods led to large-scale industrial unrest and a wave of strikes.”
2 - The Policy Debates
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Although most liberal democratic societies employ some type of preventive detention, it remains the subject of contentious policy debates. Chapter 2 starts by defining preventive detention to differentiate it from other types of detention that are sometimes treated as synonymous. It then considers the debates surrounding whether liberal democracies should ever be allowed to use preventive detention and, if so, against whom. Chapter 2 also describes the most pertinent issues that arise once preventive detention is permitted. It covers jurisdictional questions such as whom the government is entitled to detain; who should be held responsible for ordering detention and under what type of law. It also examines the debates about the extent of due process rights owed detainees, covering the rights to judicial review, information and a lawyer as well as the evidentiary burden on the state to justify detention. It concludes with an examination of the issue of what constitutes indefinite detention and whether it is ever permissible.
These policy debates underpin the analysis of preventive detention in each of the jurisdictions this book considers. How each jurisdiction responds to these policy issues determines the extent to which preventive detention undermines longstanding democratic principles and human rights guarantees. It also determines the extent of inequality in rights between “normal” members of society and the deviant others who are subjected to an inferior legal system. Chapter 2 considers each of the issues in general terms. The purpose here is not to offer a response to the issues under debate but to provide the background necessary for understanding the issues as they arise in each jurisdiction. The later chapters provide context to the debates, which better illustrates the advantages and disadvantages in practice of the potential responses to these issues.
Defining preventive detention
Before diving into the policy discussion, it is important to first define preventive detention so it is clear what type of detention this book is examining. For purposes of this book, preventive detention is the confinement of a person in a secure facility without a criminal charge to prevent a future criminal or war time harm. Under this definition, preventive detention has a single purpose – to prevent harm. Despite popular conceptions, it is not limited to extra-judicial detention.
6 - India: Preventive Detention and Due Process
- Hallie Ludsin
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Chapter 6 examines how India responds to each of the five policy issues described in Chapter 2. It discusses the types of threats India believes necessitate preventive detention. It examines the jurisdictional questions of how the government identifies detainees, who is entitled to order detention and whether civil or criminal law govern the order. It then considers the extent to which India protects due process rights, specifically considering the rights to judicial review, information and an attorney as well as the burden of proof that applies to the order. The chapter also questions whether India allows for indefinite detention. Lastly, the chapter describes any other rights protections India offers detainees. Because there are only minor differences between the pieces of preventive detention legislation, other than the types of crimes sought to be prevented, the discussion tackles the policy issues collectively.
Many of India's 28 states also have preventive detention legislation that allows them to order detention without central government oversight. This book restricts its examination of preventive detention to the national level because the copious amount of preventive detention legislation makes it unfeasible to examine both state and national legislation. Such an examination is also unnecessary since the collective impact of broad preventive detention powers on India's democracy is the same with or without an in-depth analysis of state legislation.
Chapter 6 shows both the breadth of targets for preventive detention and the meagreness of the constitutional minimum of safeguards guaranteed to detainees in India. It ultimately paints a picture of a government with remarkable freedom to order preventive detention against nearly any type of criminal. It reveals that India is comfortable substituting preventive detention for prosecution to ensure no dangerous persons will be set free, even at the risk of detaining innocent people. Together, the breadth of India's preventive detention legislation and the minimal safeguards demonstrate what the bottom of the preventive detention slippery slope looks like in a democratic country.
Sources of law
The primary sources of Indian law are the Constitution, statutory law and case law. India is a signatory to the International Covenant on Civil and Political Rights, which means it is also governed by international human rights law. It has however, placed a reservation on Article 9's right to liberty stating that it applies only to the extent it conforms to India's Constitution.
7 - India: The Risk Society and the Slippery Slope
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Chapter 7 ties together Part II by placing India's experiences within the themes described in Chapter 1. Tracking Chapter 1's analysis, this chapter underscores that India is a risk society on par with the liberal democracies described in Ulrich Beck's theory. It draws out who India considers the deviant other, the circumstances it believes are sufficiently exceptional to justify a state of exception and the cost-benefit analysis that underlies the ready adoption of preventive detention. It then narrates the normalization of preventive detention as a law and order tool and India's descent to the bottom of preventive detention's slippery slope. The chapter concludes with a description of the harm preventive detention has inflicted on India's democracy. This discussion is used in later chapters to locate the United States and England on that same slippery slope and to illustrate the type of harm they risk as they increase their preventive detention powers.
Before moving into the substance of the chapter, some might challenge the idea of India as the bottom of the slippery slope for a democratic country when detainees constitute only a small percentage of the prison population. Prison statistics show that, for the last few years, detainees make up roughly 6 per cent of India's prison population, or approximately 2000 people. This number is deceiving. A detention order lasts, at most, one to two years. The statistic of 2000 people, thus, does not reflect a static group of detainees – the same 2000 people are not held in detention each year. The government likely has detained tens of thousands of people, if not more, over the years to achieve this rate. The number is also deceptive because the bulk of people in India's prisons are pre-trial detainees – roughly 66 per cent of the prison population. The average length of pretrial detention is 266 days and many pretrial detainees are held for years. The government only needs detention if there is any possibility dangerous people will be released. It does not need detention as long as it can hold them in pretrial detention for lengthy periods of time. As a final point, if a country substituted preventive detention for prosecution at a large scale, it is unlikely it would continue to be categorized as a democracy or at least as a democracy of a type that should or could be compared to a liberal democracy.
Preventive Detention and the Democratic State
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Preventive Detention and the Democratic State tracks the transformation of preventive detention from an emergency measure into an ordinary law enforcement tool in the democratic world. Historically, democracies used preventive detention only in the extraordinary circumstance in which the criminal justice system was impotent. They preferred criminal prosecution and its strict due process requirements to detaining people for a crime they may never commit. This book shows that major democracies have begun using detention as an insurance policy against dangerous people. In the process, they have embarked on a slippery slope that allows them to use preventive detention to bypass the criminal justice system. Already, detention has established a separate, inferior legal system for certain suspected criminals. Comparing preventive detention in India, England and the United States, the book brings to light its potentially dire consequences for the rule of law, due process rights and democratic principles based on the very real experiences of these countries.
10 - Preventive Detention in the United States
- Hallie Ludsin
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Americans generally believe that the US Constitution prohibits detention without charge or conviction, except, perhaps, for foreigners detained as suspected terrorists in Guantanamo Bay. So strong is this belief that Klein and Wittes describe it as a “civic myth;” as “something of an article of faith … that preventive detention runs counter to American values and law.” Reality flies in the face of this civic myth. The federal government has the power to detain Americans and foreigners alike as suspected terrorists and the state and federal governments regularly use preventive detention against criminals. Perhaps the most surprising of all, like England, it is far easier to detain a criminal in the United States than it is to detain a suspected terrorist.
This chapter begins by describing the sources of law in the United States and the prohibition on arbitrary detention found in the Constitution's Due Process Clause. It then examines the historical limitation of preventive detention to periods of war or insurrection or for the mentally ill. Next, it describes the expansion of preventive detention beyond its traditional bounds. This section describes the rise of the risk society in the United States and the creation of new groups of deviant others who could be subject to detention. The chapter concludes with an analysis that the US is not so slowly removing previous barriers to preventive detention that had kept it as an extraordinary measure, placing it firmly on detention's slippery slope.
Sources of law
The sources of US law are the Constitution, statutory and common law and, to some extent, international humanitarian law (IHL). The Constitution applies fully to state and federal governments. Statutory law encompasses federal statutes as well as state statutes that apply only within the states’ separate jurisdiction. Jurisdiction over detention of suspected terrorists and enemy combatants is strictly federal. The Washington D.C. federal courts are tasked with determining the government's detention powers within the broad holdings of the US Supreme Court and under the laws of war, which include the Geneva Conventions and customary international law. The states have the power to use preventive detention during an insurrection within their territory if so granted under their state constitutions or laws.
Detention of criminals, which in the United States covers sexual offenders, is typically handled by the states although there are federal statutes as well.
Frontmatter
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13 - Preventive Detention and Liberal Democracy
- Hallie Ludsin
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The consequences of the transformation of preventive detention into an ordinary law enforcement tool are already being felt across India, England and the US. So far, these countries have embedded a separate and inferior legal system to manage deviant others and, in doing so, have created a breed of second-class citizens for whom the rule of law has become the rule of suspicion. For the US and England, who have not yet hit the bottom of preventive detention's slippery slope, this is just the start of the damage wrought by the ordinary and regular use of preventive detention as a law enforcement tool. What lies ahead, should they continue their descent to the bottom, is the degradation of the criminal justice system to a secondary justice system, the wholesale substitution of detention for criminal prosecution and ultimately the destruction of their characters as liberal democracies. The cost-benefit analysis that underlies the decision to employ preventive detention fails to consider these costs – costs that should tip the balance away from regular resort to preventive detention and toward greater protections for liberty.
This chapter examines the damage that results from riding down preventive detention's slippery slope. It focuses predominantly on the inferior legal systems for deviant others in India, England and the US to show that not only is preventive detention's harm not hypothetical but that its cost is already too dear for a liberal democracy. Using the analysis from parts I and II, this chapter compares how India, England and the US respond to the policy issues described in Chapter 2 to highlight the second-rate treatment of deviant others and the arbitrariness of the detention regimes. Notably, only India's detention regime unequivocally violates international law. The chapter then delves into other likely consequences to the criminal justice system, rule of law and the liberal democratic character of these countries should they continue toward the bottom of preventive detention's slippery slope. What would be left may not be authoritarianism, since none of these outcomes demand “blind submission” to the government, but neither would it be liberal democracy.
Rights violations and the creation of second-class citizens
The debate over whether detention is criminal punishment or civil regulation is the starting point for assessing the extent to which ordinary and regular use of preventive detention violates the rights to liberty and equality by allowing for the arbitrary detention of deviant others.
Contents
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1 - The Theoretical Framework
- Hallie Ludsin
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Chapter 1 explains why the climate is right for liberal democratic societies to slide down a slippery slope that allows fear of preventable crime to eclipse long standing democratic principles and transform preventive detention into an ordinary law enforcement tool. As this chapter details, the rule of law and due process rights were designed to prevent governments from inappropriately interfering with people's liberty. Liberal democracies have always rigidly applied these limits to protect against the rise of authoritarianism. They permitted incarceration only after conviction through a fair trial to keep governments from using detention to silence opposition or to bully their populations. They allowed preventive detention only in two extraordinary circumstances: (1) during a state of emergency, when the harm is considered too grave to be risked and the criminal justice system too overwhelmed to respond effectively, and (2) for the mentally ill and dangerous whom the criminal justice system can neither deter nor convict. They employed a cost-benefit analysis that concluded it was better to allow dangerous persons to go free and risk future harm than to incarcerate the innocent.
As democratic societies have grown more risk averse, they have located new exceptional circumstances that allow them to resort to preventive detention even when the criminal justice system can take action. The detention of suspected terrorists in Guantanamo Bay is perhaps the most notorious example of the expansion of preventive detention to a group that in the past would have been dealt with under criminal law. Other examples include the preventive detention of sex offenders in the United States and Australia and the detention of violent repeat offenders in many parts of Europe, including England, Germany, Austria, Belgium, Denmark, France, Italy, the Netherlands, Slovakia and Switzerland. These countries justify detention on the basis of preventing some anticipated future harm rather than as punishment for past behaviour. They have wiped away concerns about the possibility of erroneous detention by altering the cost-benefit analysis so that it is now better to detain a few innocent people to insure no dangerous person is set free. The expansion of preventive detention to new “exceptional” circumstances places many liberal democratic societies onto a slippery slope that leads to detention as an ordinary law enforcement tool and to an alternative, inferior legal system for detainees now identified as deviant others.
List of Acronyms and Abbreviations
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4 - The History of Preventive Detention in India
- Hallie Ludsin
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Part II discusses preventive detention in India, beginning with an overview of its historical background in this chapter. Before examining how India came to constitutionally protect preventive detention, the chapter tackles the question of why India's detention regimes should be compared to those of the United States and England given that India cannot be characterized as a full liberal democracy. This discussion highlights the fact that it was largely its risk aversion at the time of Independence that deprived India of this characterization – a perfect example of where risk aversion can lead a true democracy. The chapter then turns to the decision India's newly independent leadership made to constitutionally entrench preventive detention and to avoid expressly guaranteeing “due process” beyond specific, enumerated rights. The constitutional debates illustrate that at independence India was a risk society that saw detention as an essential means for protecting society. The chapter concludes with an examination of India's initial preventive detention legislation to highlight the fact that from the start it used the rationale of a state of exception to justify limiting the right to liberty – a rationale it shares with England and the United States.
Comparing apples and oranges?
Before entering into the analysis of India's decision to constitutionally protect preventive detention, this chapter examines why India should be used as any kind of example – good or bad – for Western liberal democratic countries. India is regularly touted as the “world's largest democracy,” but its constitutional rights protections fall short of what most liberal democracies offer. India's Constituent Assembly, which drafted the Constitution, copied fundamental rights from liberal democratic constitutions, but altered them to fit what it saw as the Indian context. These alterations vastly limited many traditional fundamental rights to favour security over liberty, the most glaring of which are the restrictions on liberty rights to allow for preventive detention during peace time and the refusal to guarantee due process rights for all deprivations of liberty, as described below. These alterations play a key role in characterizing India's democracy as something less than liberal. Whether India falls short of liberal democratic status is in no way uncontested; however, this book takes the approach that the limitations on liberty and due process rights in favour of security means that liberty is not at the foundation of its democracy.
8 - Preventive Detention in England
- Hallie Ludsin
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England provides the first example of what appears to be the liberal democratic descent down the slippery slope of preventive detention. Chapter 8 examines the government of England's decision to expand preventive detention beyond its traditional uses during an emergency and for the mentally ill to suspected terrorists and dangerous persons who suffer from antisocial personality disorder. It highlights the extent to which England has transformed preventive detention from an extraordinary measure for dealing with extraordinary circumstances to an ordinary crime-fighting tool – a transformation that tracks England's conversion to a risk society and places it on preventive detention's slippery slope.
Sources of English law
The primary sources of English law are domestic law, including common law and statutory law, and European law through the Council of Europe and European Union treaties, regulations and directives. England is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). With respect to regional sources of law, the chapter focuses on the European Convention on Human Rights (Convention), as it is the main treaty governing preventive detention by Council member states. England signed the Convention in 1951 and adopted most of its provisions into domestic legislation in the form of the Human Rights Act in1998. The Convention, thus, can be enforced domestically or regionally before the European Court of Human Rights (ECtHR). As a member of the European Union, England has bound itself to the Charter of Fundamental Rights of the European Union, although for reasons described below, it plays a lesser role in determining England's human rights obligations.
Prohibition on arbitrary detention
English law
As described in Chapter 1, the prohibition on arbitrary detention in England dates back at least as far as the adoption of the Magna Carta in 1215. The common law maintains a “presumption of liberty” based on “the underlying principle, fundamental in English law, … that every imprisonment is prima facie unlawful.” The presumption requires the government to prove the legality of any detention in a court of law. This right to liberty and freedom from arbitrary detention applies without discrimination, including against foreign nationals.
The right to liberty and freedom from arbitrary detention is codified in the Human Rights Act of 1998. The Act states that it adopts the right to liberty guaranteed by Convention Article 5 subject to any reservation or derogation by England.
Index
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Acknowledgements
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Introduction
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Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
Benjamin FranklinSince the late 1980s, preventive detention as a law enforcement tool has been gaining traction across the liberal democratic world. Historically, democracies prohibited preventive detention as an unacceptable limitation on the right to liberty except as an extraordinary measure during a state of emergency when the criminal justice system is too overwhelmed to manage security threats or for the mentally ill and dangerous who are beyond the criminal justice system's reach. They weighed the societal cost of jailing people who have not yet committed a crime, and therefore remained innocent and capable of abiding by the law, as greater than the benefit from preventing a crime that may not happen. They feared that easy access to detention powers would lead to authoritarianism.
Untill recently, democracies permitted two exceptions to the right to liberty and the concomitant prohibition on preventive detention in response to exceptional circumstances in which the criminal justice system, with its strict due process guarantees, could not prevent or deter severe, criminal harm – during a war or insurrection or for the mentally ill and dangerous. These exceptional circumstances permit the government to invoke a state of exception to bypass the criminal justice system and use preventive detention to protect against the threat. In the absence of these circumstances, democracies refused to allow mere prediction of dangerousness or guilt based on suspicion, not evidence, to justify incarceration. They treated the risk of error as too high and the loss of rights too extreme to be justified in societies that place a premium on human rights and the rule of law. They preferred, instead, to prosecute and punish completed crimes in trials that guarantee due process. As Alexander Hamilton explained in The Federalist Papers at the time of the drafting of the United States Constitution, “[T] he practice of arbitrary imprisonments, have been, in all ages, the favourite and most formidable instrument of tyranny.” Thus, strict adherence to due process in the criminal justice system has been viewed as the cornerstone of democracy; whereas inroads on it have been viewed as evidence of a state's oppressive authority.
As democratic societies have grown more risk averse, they, along with their political representatives, have been increasingly willing to exchange their due process and liberty rights for an increased sense of security.
11 - The United States: Preventive Detention and Procedural Due Process
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Having already identified sex offenders and suspected terrorists as deviant others deserving of preventive detention, this chapter focuses on the policy issues that erupt in practice from carrying out detention. In the US, most of the answers to the policy questions focus on complying with the Constitution's due process requirements. Chapter 7 examined substantive due process issues – it asked whether preventive detention is ever fair, assuming the best of procedures. Chapter 8 looks at procedural due process issues – having decided it could be fair, what is the minimum process the Constitution requires. The answer depends on the Supreme Court's interpretation of the Fifth and Fourteenth Amendments. The Supreme Court has deferred judgment on adequate process for suspected terrorists to the US Circuit courts, which under the Detainee Treatment Act means the US District and Circuit Courts for the District of Columbia, or the DC District courts.
Detention jurisdiction
The first set of issues this chapter tackles are jurisdictional: how the government chooses who to detain, who is responsible for making that choice and which type of law applies to the detention regime. The first issue describes what behaviour and activities the government considers dangerous, whereas the latter two determine the level of due process owed to the detainee.
Who may be detained
This section details the criteria for detention under each law. Implicit in these criteria are the requirements of necessity and proportionality. They are met prior to passing the legislation, when the government describes a particularly serious harm that the criminal justice system cannot adequately prevent without invoking a state of exception. The decision over necessity and proportionality, to a large degree, is made at the group, rather than individual, level at the time the government employs its cost-benefit analysis.
Suspected terrorists
Combatants: The National Defense Authorization Act (NDAA) allows for detention of an enemy combatant who is defined as someone who (1) “planned, authorized, committed, or aided” the 9/11 attacks or “harbored those responsible” or (2) “who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces … including any person who has committed a belligerent act or has directly supported such hostilities.” To qualify as an associated force, the group must have “an actual relationship” with Al-Qaeda or the Taliban, rather than simply a shared goal.
3 - Preventive Detention under International Law
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International law offers at least some answers to the policy issues raised in Chapter 2. Its role is to place limits on state power using human rights norms. These limitations on detention powers provide minimum benchmarks for assessing whether preventive detention is legitimate or constitutes arbitrary detention. These limitations, however, do little to check the state's power to create new preventive detention regimes; they focus more on protecting procedural rights than ensuring that preventive detention remains an extraordinary measure to be used in extraordinary circumstances. Because of this, international law fails to create the safety net necessary to protect against the slippery slope of preventive detention feared here.
Chapter 3 begins by listing the sources of international law that govern preventive detention. It then examines whether international law places any restrictions on the types of harm states can seek to prevent, focusing on whether states are entitled to order detention against national security threats or for protective purposes. The chapter next considers detention jurisdiction to see whether international law offers any guidance on how states can identify detainees, who should be responsible for ordering detention and the type of law that governs. It also examines the extent of due process rights international law requires governments to guarantee detainees and how it defines indeterminate detention. Finally, the chapter describes any other rights offered to detainees and identifies any gaps in international law that could harm detainees. Overall, this chapter shows that international law is surprisingly permissive in allowing for preventive detention.
Sources of international law
International human rights law (IHRL) and international humanitarian law (IHL) are the two branches of international law that govern preventive detention. IHRL applies to all preventive detention; IHL applies only during an armed conflict. Within IHRL, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are the primary authoritative sources of law on preventive detention. Human Rights Committee comments and communications, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (“Detention Principles”) and the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (“Mental Illness Principles”) constitutes of sources of law that, while not binding, are considered persuasive authority by the international community.
During any armed conflict, the four Geneva Conventions are the primary sources of IHL that govern preventive detention.
12 - Preventive Detention's Slippery Slope
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Over the last several decades, liberal democracies have begun to adopt preventive detention as an ordinary law enforcement measure. In the past, they confined preventive detention to the extraordinary circumstances in which the criminal justice system simply could not act – such as during a war or insurrection or for the mentally ill and dangerous when neither deterrence nor prosecution is feasible. Since the rise of the risk society, these liberal democracies have begun erasing the principled distinctions that kept preventive detention as an extraordinary measure. India serves as the cautionary tale of what happens when risk aversion is allowed to drive preventive detention policy. While no liberal democracy is likely to wholly replicate India's permissiveness, which includes a constitutional right to preventive detention, it provides one important lesson – above all others – that once a government adopts preventive detention as an ordinary measure, no matter how bad the consequences, it is almost impossible to let it go.
Using the information from parts II and III of this book, this chapter compares India, England and the US to highlight that liberal democracies need to take seriously the slippery slope arguments that preventive detention proponents too easily dismiss. The comparison demonstrates that India's descent down preventive detention's slippery slope is not an aberration for a true democracy but the same path that the US and England are currently cutting. The chapter begins by showing the necessity of redefining the slippery slope based on the real experiences of these three countries. While the risk of authoritarianism is ever present when detention is substituted for prosecution, the bottom of the slippery slope in a true democracy is the ordinary and regular use of detention as a law enforcement tool.
The chapter then examines the rise of the risk society in each country that is leading them to use preventive detention as an ordinary law enforcement tool. While India developed into a risk society differently than the two liberal democracies, the effect of elevating risk to a primary societal concern is no different. Next, this chapter examines the current justifications for preventive detention to mark the stark difference between the traditional requirements for a state of exception and how it is used now. It then compares the choice of the deviant other treated as deserving of preventive detention in each society.