Hakimi: International Standards for Detaining Terrorism Suspects

Monica Hakimi (Yeshiva Univ. - Benjamin N. Cardozo School of Law) has posted International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide. Here's the abstract:

Under what circumstances does international law permit a state to detain terrorism suspects not captured in a theater of combat? There continues to be confusion on this question, but two dominant strands of thought have emerged. One asserts that the law of armed conflict applies to permit extended detention with minimal or no legal process; the other claims that human rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand fully tracks international practice. Rather than uniformly adopting one system or the other - armed conflict or criminal - international actors have been groping toward an in-between, hybrid system. Based on a review of that practice, this Article argues that the global fight against terrorism is best not 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. Although the criminal law is an important tool for detaining terrorism suspects, human rights law also permits states to detain them administratively. Moreover, administrative detention may strike a more appropriate balance between liberty and security in the context of particular terrorism suspects. Yet the legal contours of security-based administrative detention are underdeveloped in international law. This Article thus begins the project of refining the law of administrative detention as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from exploiting the current legal ambiguity to detain unnecessarily or without constraints; and to enable states to detain based on a lawful template, thereby reducing the incentive to resort to unchecked or unpalatable measures.