into any category except the third above. Is this customary international law then? I’m reluctant to say so. I think of it more as treaty law inasmuch as the treaty-interpreters (i.e. the institutions identified within the treaty itself as having responsibility for interpreting its terms) are simply elaborating on the meaning of the treaty much like constitutional courts do with constitutional norms in domestic systems.Diane then, in a comment to Michelle’s post, asks whether the non-derogability of the right to challenge the lawfulness of one’s detention means that “there never can be emergency detention, regardless of circumstances? Is there no accommodation of delay in hearings on detention, at least in the most extreme circumstances?” My argument is certainly that the non-derogability of the right does not mean that there can never be extended detention – in fact, my reading of the right to be free from arbitrary detention in international law (heavily influenced, by the way, by the work of Claire Macken and particularly her article “Preventive Detention and the right to personal liberty and security under Article 5 ECHR” (2006) 10(3) Int. J. of Human Rights 195) is that preventative detention including of suspected terrorists is permissible on public order and national security grounds but only if it is capable of being challenged in court. It might be useful to quote a short extract of my argument from the J. Conflict and Security Law that I mentioned yesterday to show the thrust of my reading (footnotes omitted):
The international system has sufficient inbuilt flexibility that, coupled with appropriate derogations where necessary, would allow for an effective system of detention in which detainees could challenge the lawfulness of their detention to be constructed.
In such a system it would, if necessary, be possible to have extensive grounds upon which one could be taken into detention including, as international law already permits, suspicion of involvement in international crime (including crimes against humanity into which many terrorist actions can certainly be said to fit) and preventative detention to protect against future involvement. The duration of detention prior to trial would be entirely dependent on the exigencies of the circumstances of the case which could be tested by a detainee through a habeas corpus petition and, where there was to be no trial or charge, the existence of an effective review procedure may be sufficient to deprive the detention of any prima facie arbitrary character, depending on the nature and weight of the evidence underlying the suspicion against the detainee as assessed by a court (or an arbiter with the characteristics of a court). Such a review procedure would either consist of habeas corpus petitions or an equivalent review mechanism in which the detainee would have the capacity to substantively challenge the lawfulness of their detention in an adversarial procedure, before an objective arbiter with the power to order to release from detention. In recognition of the sensitive nature of the information that may form the basis for the decision to detain, international law allows for a number of variations from ‘the norm’ including, for example, the provision of Special Representatives, the reasonability of suspicion of involvement being assessed on a 'balance of probabilities’ basis, and so on. International law allows for substantial variations on ‘normal’ procedure where those variations are strictly required by the exigencies of the situation. Instead of simply asserting the necessity to detain an individual or to deny them access to judicial oversight, therefore, a system based on
international law principles would require a case for such variations to be made out to the satisfaction, where necessary, of a court of law.Detainees who have recourse to such a review procedure could be tried for international crimes in a military commission if necessary, provided the commission complies with international legal standards and, most importantly, in the ‘War on Terrorism’, they could be interrogated for information. This would certainly be a variation from the ‘norm’, however it would not extend to allowing the use of 'coercive interrogation techniques’ or torture, because of the prohibition of such conduct not only by the UN Convention against Torture but also by jus cogens. This, combined with the right to an effective and substantive review of the lawfulness of detention, appears to satisfy both rights-protection and national security needs to the extent possible (for one can never absolutely protect against terrorism or absolutely protect against rights abuses; one can merely try to design and use a system that minimises the threat of both to the extent possible).
