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March 17, 2016

Event Summary: ‘Preventive Detention of Terror Suspects: A New Legal Framework’

by
Henry Jackson Society

On the 16th March, Dr Diane Webber, a British solicitor and Non Resident Associate Fellow at The Henry Jackson Society, delivered a talk titled after her new book ‘Preventive Detention of Terror Suspects: A New Legal Framework’. The event was chaired by The Lord Risby and was hosted by The Henry Jackson Society in the Houses of Parliament.

Discussing the complexities associated with contemporary counter-terrorism laws, Dr Webber described the controversial use of Preventive Detention, defined as detention before or without charge for the purpose of preventing a future terrorist act. She argued there were a series of competing frameworks, derived from International Human Rights Law, the Law of Armed Conflict and a diverse spectrum of domestic laws from over 40 countries. Detention periods in these countries ranged from 48 hours to indefinite detention. Preventive Detention is fraught with conceptual and procedural problems, and its deficiencies delegitimise the use of this counter-terrorism tool. In a globalised era where failure to use Preventive Detention legitimately in one state directly impacts the security of another, it is vital to develop a comprehensive paradigm that synchronises the use, scale and scope of Preventive Detention across all countries and safeguards the human rights of detained terror suspects.

After providing a brief synopsis of detention laws in a number of case studies, Dr Webber introduced a new approach based on a minimum of ten criteria to act as a framework for countries choosing to deploy Preventive Detention as a counter-terrorist measure. Each recommendation was subject to three tests: their compliance with international human rights law, the impact on the capabilities of national security services to prevent further terror attacks, and the scale of change necessary for each country to align to these new parameters. Due to the need for brevity she highlighted the use of secret evidence as a key example across a number of states, including Britain, Canada, Israel and the U.S. Dr Webber called for the adoption of a mixed model, with one security cleared lawyer as in the U.S. (as opposed to the British and Canadian use of special advocates), and following the European practice of providing a detainee with the essence or gist of the case again him/her, saying it struck the right balance between security and the individual’s human rights.