Professor Martin Scheinin Responds to Ken re Administrative Detention

(Professor Martin Scheinin, whose mission and report on the US and counterterrorism and human rights I discussed below, was kind enough to post a substantive response to my earlier post, “Try or Release.”  Particularly since I was quite critical of that report, let me move Professor’s Scheinin’s response up to its own post.  Apologies for not noticing it earlier – it was languishing in our comment moderation in-box until Peggy pointed it out to me.  And my thanks to Professor Scheinin for his substantive and gracious response.  Ken) 

Martin Scheinin on Administrative Detention

After a public debate with Kenneth Anderson in Washington DC more than a year ago it comes a bit as a surprise how Anderson presents my views as a bulldozer approach. Let me start by expressing in a nutshell my understanding of what human rights law says about administrative detention.

1. There is no black-letter rule against administrative detention in article 9 of the Covenant on Civil and Political Rights (ICCPR) or elsewhere in United Nations human rights treaties. Under for instance the European Convention on Human Rights the issue is different, as article 5 (1) includes an exhaustive list of permitted situations of detention.

2. The non-negotiable rules under ICCPR article 9 are: (a) any form of arbitrary detention is prohibited, and (b) any detention must be subject to court review as to its lawfulness. The established interpretation by the monitoring body, the Human Rights Committee, is that these rules are non-derogable even during a state of emergency. I am well aware of the fact that many experts of international humanitarian law think that having courts review POW status in wartime still is practically impossible as it was during World War Two. I agree with the view of the Human Rights Committee and believe that nowadays, in our world with human rights treaties, states must involve their (military or other) courts even when they go to war, not even to speak of when they fight terrorism outside the context of an armed conflict. 

3. If a state introduces administrative detention and subjects its lawfulness to court review, it flows from ICCPR article 14 (1) that this court must respect the fundamental principles of fair trial, including the equality of the parties in terms of access to evidence, legal representation etc. This miniature version of fair trial rights is applicable and non-derogable irrespective of whether the case is classified as criminal or administrative.

Ken Anderson quotes the UN executive summary of my 2007 report on the mission to the US (A/HRC/6/17/Add.3), without reflecting upon the somewhat more nuanced discussions that can be found elsewhere in that report, as well as in other statements that I have issued as UN Special Rapporteur on human rights and counter-terrorism. In the US mission report itself, paragraph 12 expresses my position that human rights law poses no obstacle for detaining persons actively engaged in hostilities during a non-international armed conflict: They “may be held as security detainees for the duration of the hostilities, but also treated as criminal suspects for their use of violence.” I do not take the view that the “try or release” maxim would exclude detaining the persons in question during the actual hostilities, analogously to POW:s during international armed conflict.  

The issue of administrative detention is discussed a bit more in my 2007 report on a mission to Israel (UN doc. A/HRC/6/17/Add.4), considered simultaneously with the US mission report. Let me quote the relevant paragraph:

25. Of further concern to the Special Rapporteur is the use in the West Bank of “administrative detention” authorized under Military Order 1229 (1988). This Order empowers military commanders in the West Bank to detain an individual for up to six months if they have “reasonable grounds to presume that the security of the area or public security require the detention” subject to confirmation by the District Court. Commanders can extend detentions for additional periods of up to six months, and the Military Order does not define a maximum cumulative period of administrative detention, thus meaning that detention can be extended indefinitely. At June 2007, Israel was holding approximately 830 Palestinians in administrative detention, and the Special Rapporteur is aware of cases in which persons have been held for periods of years under administrative detention. The terms “security of the area” and “public security” are not defined, their interpretation being left to military commanders, and thus lack the level of precision required by the principle of legality. Furthermore, much of the information concerning the reasons for such detention is classified, such that the detainee and his or her lawyer have no access to this information, available to the military court confirming the detention, and thereby no effective means of contesting the grounds of the detention. This is at variance with article 14 of the International Covenant on Civil and Political Rights, which not only guarantees the right to a fair criminal trial, but also requires that fundamental principles of fair trial be respected in any matter dealt with by a judicial body.

As any careful and attentive reader can see, I am not saying that administrative detention per se is a violation of human rights law. I am simply saying that the Israeli version of administrative detention is incompatible with the ICCPR, for the reasons mentioned in the paragraph just quoted.

Although the US mission report addresses the permissibility of administrative detention only in passing (para. 12), there is a lot about Guantanamo, and also about how to close Guantanamo. Partly because of the emergence of a debate in the US but mainly because of the simultaneous consideration of the reports on my missions to the US and Israel, I included the following paragraph in my statement to the UN Human Rights Council, when introducing the two reports on 12 December 2007:

More than six years after 9/11 and the apprehension of hundreds of persons, military commission proceedings have been initiated against less than a handful of the Guantanámo Bay detainees and the Government estimates ultimately to initiate proceedings against some 80 of them. Coupled with an ongoing discussion in the United States about introducing new legislation on preventive or administrative detention, legalizing the holding of individuals without trial, this triggers me to update my mission report by stating that the ex post factointroduction of new legislation on preventive detention, for persons that already for years have been in detention, would unavoidably amount to arbitrary detention in the meaning of article 9, paragraph 1, of the International Covenant on Civil and Political Rights.   
This statement is available on the OHCHR website,  the emphasis included (see http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/Councilpresentation121207.doc). The emphasis on the words ex post facto is there not only because of the Latin, but also to highlight that I took the view that the retroactive introduction of administrative detention for a specific group of persons that already have been in unlawful detention for years, would be in breach of human rights law.

While I do favour a “try or release” approach, I have not said that every form of administrative detention is automatically in violation of human rights law. Every effort to introduce such a regime would encounter problems in respect of ICCPR article 9 or 14. In the case of the Guantanamo detainees I believe a clash with ICCPR article 9 (1) would be unavoidable.

Finally, as to detainees in Iraq and Afghanistan, I need to quote the actual US mission report:

18. The Special Rapporteur is mindful of the fact that there are in Afghanistan some 700 and in Iraq around 18,000 persons detained under the control of the United States. Some of these detainees appear to be held for reasons related to the fight against terrorism, under a legal status analogous to that at Guantánamo Bay. He reminds the United States and other States responsible for the detention of persons in Afghanistan and Iraq that these detainees also have a right to court review of the lawfulness of their detention.

I continue to stand 100 % behind these words which reflect the position already expressed above, concerning the non-derogable nature of the requirement of court review of any form of detention, even in times of emergency. I would have expected Ken Anderson to quote this passage for my position. Instead, he quoted the summary of the same report that expresses the broader “try or release” position. I do acknowledge that while reflecting my overall position, that sentence, if understood as a legal statement, should be conditioned on the factual issue of whether the detainee in question was actively engaged in an armed conflict that is still ongoing, and in respect of persons consequently held as security detainees (para. 12 of the report), supplemented with a requirement of meanwhile having the right of court review over the lawfulness of detention (para 18 of the report). 
 
Martin Scheinin
Professor of Public International Law, European University Institute
UN Special Rapporteur on human rights and counter-terrorism
For the US and Israel mission reports, seehttp://www2.ohchr.org/english/issues/terrorism/rapporteur/reports.htm