Monica Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

Thanks to Opinio Juris for hosting this symposium. I read the blog regularly so know to expect a lively and interesting discussion.

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat. Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects. On those questions, two broad strands of thought have emerged. One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention. Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects. In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined. My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.