With the drawdown of US forces in Afghanistan, one of the thorniest problems involves the detention of individuals who cannot be criminally tried but nevertheless pose an acute security risk: detainees classified as “Enduring Security Threats” (ESTs). Legal experts often overlook (it would be fair to say, some of them seriously mischaracterize) an avenue that international human rights law allows for the continued detention of ESTs, but, in the end, that oversight is essentially harmless because that option appears blocked by other facts on the ground.

Yesterday’s guest post by Chris Rogers provides an excellent analysis of the status of some of the detainees currently held at the Detention Facility in Parwan (DFIP), or Bagram. His post comes on the heels of a DoD report, which notes that the MOU between the US and Kabul “commits [the government of Afghanistan] to the continued detention of detainees designated as Enduring Security Threats.” The Pentagon report explains that these operations involve a “transition from U.S. Law of Armed Conflict (LOAC) detention to sovereign [Afghanistan] authority.” That raises a set of international legal questions.

Under international law, how can such individuals possibly be detained without trial after the shift from LOAC detention and the cessation of hostilities? On what basis in international law can US officials complain and prod the Afghan parliament to pass legislation permitting Karzai’s government “to detain individuals even if insufficient evidence exists to prosecute them in court”?

Here is a lesson from “Human Rights Law 101:” human rights treaties permit states to adopt a system of preventive detention for individuals who are severe security threats.

This option is a settled and clear part of international law, despite the fact that some law review articles by legal scholars appear to disregard it [e.g., Oona Hathaway, et al, The Power To Detain: Detention of Terrorism Suspects After 9/11, Yale Journal of Int’l Law 123 (2013) see p. 160; Oona Hathaway, et al, The Relationship Between International Humanitarian Law and Human Rights Law in Armed Conflict, 96 Minnesota Law Review 1883 (2012), see p. 1931; cf. Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 Yale Journal of International L. 33 369 (2008) (discussion of ECHR at p. 392)].

A significant body of international human rights law clearly permits—and regulates—preventive detention of security detainees. The very first decision of the European Court of Human Rights—Lawless v. Ireland—upheld the United Kingdom’s use of preventive detention of IRA members (through a derogation by the UK). Citing Lawless, the Inter-American Commission has also recognized the same principle allowing preventive detention of security threats under particular conditions.  And, more importantly for the United States and Afghanistan, it is a settled understanding that the International Covenant on Civil and Political Rights provides for this option as well.

That said, IHRL also establishes multiple “preconditions” on the authority to employ preventive detention. And the few existing state models—e.g., India’s preventive detention regime—are better examples of a violation of the IHR rules than a reflection of them.

One of the key preconditions that has not been met for Kabul to detain ESTs is passage of domestic authority for preventive detention. The UN Human Rights Committee long ago stated: “if so-called preventive detention is used, for reasons of public security, it must … be based on grounds and procedures established by law.” Other conditions include prompt and effective judicial control (an especially clear principle for cases outside of LOAC detention), proportionality, and necessity. For a very good analysis of these conditions, I recommend Doug Cassel’s Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints under International Law, 98 Journal of Criminal Law and Criminology (2008) (especially pp. 832-34).

It is wrong to bury one’s head in the sand about the existence of IHRL authorization of preventive detention. Indeed, suggesting there is no such option threatens the legitimacy and appeal of international law. It says that states must be willing to venture far outside of human rights law to protect their populations from acute security threats. Nevertheless, in the case of detainees under Afghan control, we may be back to square one. International human rights law permits forms of preventive detention outside of LOAC, according to preconditions that Kabul seems unwilling to meet.