1. Ryan Goodman is right when he states, in an earlier post on Just Security, that “a significant body of international human rights law clearly permits, and regulates, preventive detention of security detainees.” The 1982 General Comment No 8 of the UN Human Rights Committee can still be regarded as a valid confirmation of preventive detention provided that necessary safeguards have been met.

The system of the European Convention on Human Rights seems, however, to be less permissible. Already in the 1961 Lawless v. Ireland case, the European Court of Human Rights (ECtHR) held that preventive detention (i.e. detention for which the purpose is isolation justified by security considerations) is not allowed under Article 5(1)(c) of the European Convention, as the aim of any arrest or detention in accordance with this provision is exclusively to bring a person to trial within a reasonable time.  At the same time, the Court accepted that preventive detention may not violate the Convention if a Member State, in exceptional situations like war or other public emergency threatening the life of the nation, derogates from its obligations under Article 15 of the Convention.

Lawless is still a good law, at least as far as the general position of the Court is concerned. While, in the later case law, problems of detention without access to a judge have been considered on several occasions, most of the cases did not deal with preventive (security) detention. In Brogan and Others v. the UK (1988), Brannigan and McBride v. the UK (1993) and Aksoy v. Turkey (1996), the Court addressed situations in which alleged terrorists had been detained and interrogated for several days before being released or charged. In the UK cases, the Court held that a prolonged “interrogation detention” is not allowed under Article 5 of the Convention; however, it might be accepted if the State invokes a derogation as provided under Article 15. However, Turkey was not as lucky as the UK: in Aksoy, the Court examined the merits of the Turkish derogation and held that eight-days long “interrogation detention” could not be regarded as “required by the exigencies of the situation.”

2. More recently, in A. and Others v. the UK, the Court addressed detention of aliens which, theoretically, was taken with a view to deportation or extradition (Article 5(1)(f) of the Convention), but – as most of the detainees were non-deportable due to humanitarian grounds – constituted de facto an indefinite detention justified by reasons of national security. The Court recalled that “it has, on a number of occasions, found internment and preventive detention without charge to be incompatible with the fundamental right to liberty under Article 5(1), in an absence of a valid derogation under Article 15.” And, even if the UK made use of the derogation, the Court – following the position taken by the House of Lords – found that the derogating measures were disproportionate. Thus, there had been a violation of the Convention.

Two further cases dealt with administrative internment outside the territorial scope of the Convention. In respect to Kosovo (Behrami and Saramati – 2007) the Court dismissed the case for want of jurisdiction. It held that, as the KFOR forces operated under the UN Security Council mandate, their actions (including preventive detention) cannot be attributed to any of the Convention States. But, only four years later, in the Al-Jedda case, the Court reconsidered its position and accepted the responsibility of the UK for a three-year long internment of a British national in a UK run facility in Basra. The Court held, first, that the internment of the applicant was attributable to the United Kingdom. Second, although the general framework of the operation of the Multinational Force in Iraq was determined by the UN Security Council resolutions, none of those resolutions required, in precise terms, the use of preventive detention. Thus, the European Convention was applicable and – as “the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time” – the UK actions violated the Convention.

3. Three general observations can be derived from this case law.

First of all, in “normal times,” preventive (security) detention is absolutely incompatible with the Convention.

Secondly, preventive detention may be allowed in an emergency situation, provided a Member State decides to make use of the derogation clause of Article 15. However, the Court is now applying quite strict scrutiny both on the very decision to derogate and on the proportionality of particular measures undertaken under emergency powers. The problem of proportionality may, in particular, arise with the passage of time as, in any case, an indefinite detention would not be acceptable under the Convention. Thus, Article 15 may not be as effective as it was believed when the Lawless case was decided.

Finally, the prohibition of preventive detention may also apply extraterritorially, at least as long as the security measure is not directly required by a “higher law,” e.g., by a UN Security Council resolution adopted under Chapter VII of the UN Charter.

So, in conclusion, it seems that the European Convention (or – rather – the ECtHR’s case law) elaborates a higher standard of protection than the standard required under general international law. This may, at least in part, result from tragic memories of the Nazi camps and the Soviet Gulag system. Whether, in the context of the “war on terror,” it makes Europe exceptionally lucky or extremely imprudent, is not for me to judge.