The Ten Principles of Detention

The Ten Principles of Detention

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law.

First, the purpose of any detention law should be to address the terrorist threat. Only persons who take part in the cycle of hostilities or who belong to a force that carries out hostilities against the state should be subject to the detention law. ¶ 6.

Second, the law should be drafted and interpreted consistent with international humanitarian law. This presumes that a state of armed conflict prevails in the war on terror. ¶¶ 7, 9.

Third, the law should apply to foreigners who are unlawful combatants. This means the person in question does not enjoy prisoner of war status and is not a citizen or resident of the state. Unlawful combatants do not enjoy the same rights as lawful combatants. ¶¶ 12-14.

Fourth, a person may only be detained if he poses an individual threat to the security of the state. That threat may arise either because the person took part in the hostilities against the state or because he is a member of a force carrying out hostilities against the state. ¶¶ 15-19.

Fifth, clear and convincing evidence must be provided that the person took part, directly or indirectly, in the hostilities or belonged to a terrorist organization. ¶¶ 22-23.

Sixth, detention may be entrusted to military personnel and those personnel may detain the person before the detainee has an opportunity to present his arguments. ¶¶ 38-39.

Seventh, detentions should be subject to judicial review, which includes an initial hearing within 14 days of detention and subsequent hearings every six months. ¶¶ 40-42.

Eighth, evidence establishing grounds for detention can be heard ex parte without the detainees and his counsel present and without disclosing it them. Judicial review must carefully examine the quality and quantity of the evidence that supports the ground for detention as a safeguard to such ex parte evidence. ¶ 43.

Ninth, the person must have the right to meet with a lawyer at the earliest possible opportunity, but no later than seven days before he is brought before a judge for review. ¶¶ 44-45.

Tenth, detention need not include a defined date for the end of detention. The detention may not exceed the period of hostilities. In addition, consistent with international law, each case must be considered on its own merit according to specific circumstances to determine whether the person poses a continuing threat to the security of the state. Periodic review of the detention every six months should assist in this determination. ¶ 46.

As the Israeli Supreme Court summarized it, “the law does not allow the detention of innocent persons who have no real connection with the cycle of hostilities of the terror organizations, and it provides mechanisms whose purpose is to reduce the violation of the detainees’ rights, including a ground for detention that is based on a threat to state security and the holding of a hearing and initial and periodic judicial review of detention under the law.” ¶ 49.

So there you have it, the ten principles of detention as outlined by the Israeli Supreme Court. I would be curious whether Ben or others think this model would work in the United States.

Print Friendly, PDF & Email
Topics
Books, Middle East, National Security Law, North America
Notify of
Benjamin Davis
Benjamin Davis

Please no more improvisation in the detention of human beings.

Vlad Perju

I’m not sure what you mean.  Please clarify. 

Charles Gittings

I don’t think it will work in Israel either. You can’t observe IHL by violating it, and citizenship has no bearing here: everyone has the same right to liberty and a fair trial when accused of a crime, period.

Benjamin Davis
Benjamin Davis

The reason we are discussing National Security Courts and new detention regimes is because seven years ago the error was made to have a policy of cruelty and subvert the domestic and international legal regimes in place.  New detention regimes appear to me to be post-hoc efforts to ratify aspects of what has been done in the policy of cruelty – a legitimizing action.  We should resist that effort to legitimize. The domestic law structure developed will have little relation to international law obligations simply because of the Congressional and Judicial (should I mention the national security law crowd that appear very dominant in decisionmaking circles) blindspots on applicable treaty and customary international law.  We do not have to remake the wheel on this subject. The idea of secret incommunicado detention by the state is anathema to anyone thinking of fundamental human rights.  There are dangerous people – charge them with crimes, give them a fair hearing and send them to jail if they are convicted. There are private parties who want to do war (I have sent to this space before the quote of Grotius on private parties making war on princes that brings the Al-Qaeda type problem back as a problem that was also faced… Read more »

David Glazier

There’s nothing unique about the Israeli law, unless making a good faith effort to comply with International Humanitarian Law is unique.  It’s simply a domestic codification of the basic rules for detaining civilians who pose a security threat under Geneva IV.  Of course it will work in Israel since it is soundly grounded in international law, and it could have worked here IF only the lawyers who worked the law after 9/11 had known anything at all about the law of war.  Heck, Geneva IV even authorizes incomunicado detention where considered necessary for the security of the state. 

Now if only the Israeli government read the part of Geneva IV which forbids settling members of one’s population in occupied territory . . .   But at least they’ve read large parts of Geneva IV, unlike some members of the Bush Administration who literally didn’t even know of its existence in the days after 9/11 . . .

Vlad Perju

I’m not suggesting it’s unique but it does offer a useful basis for comparison that strikes a compromise between the two camps in the United States.  Apply IHL, but treat unlawful combatants differently from lawful combatants.  Include judicial review, but allow ex parte evidence.  Permit indefinite detention, but impose an obligation of individualized threat.  All of those are worthwhile contributions that seem to me at least to take a middle course. 

Guy
Guy

Those who wish to see what law is discussed in Anonymous v. State of Israel, see here.