Back to Ken on Administrative Detention

by Deborah Pearlstein

Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think a new administrative detention regime is a bad idea as well.) Objecting to such a new regime on policy grounds is, of course, different from asserting that it is categorically prohibited as a matter of international human rights law. Now I hardly wish to defend, explain or criticize Professor Scheinin’s particular remarks; among other things, I wasn’t at the 2007 discussion you mention and haven’t seen a transcript. The relevant paragraph of the report you reprint on this question is almost entirely limited to the Guantanamo detainees. And where it is not (as I read it, only in the last sentence of the second paragraph), it seems to be taking a position on the applicability of existing international humanitarian law (the law of armed conflict). On that question – whether there is an ongoing armed conflict in Afghanistan – I’ll have to respectfully disagree. I believe there is. As you point out, not even the ICRC is likely to dissent here. As for the no doubt considered views of our friends at HRW, HRF, ACLU, and beyond, we’ll have to trust them as always to speak for themselves.

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