Edited by Ben Saul
Chapter 25: Counter-terrorist detention and international human rights law
Ordinarily states only detain individuals involuntarily for reasons associated with pre-trial custody, post-conviction punishment, or the protection of individuals (as in relation to health). In these cases detention is primarily punitive or protective and only rarely or incidentally preventive. Counter-terrorist detention of the kind that this chapter is concerned with – namely, the detention of suspected terrorists as opposed to those convicted of terrorism offences – has a radically different character inasmuch as its purpose is primarily preventive. On a purely utilitarian level, suspected terrorists are detained to both prevent their own further engagement in terrorist activity and to acquire information or intelligence that might disrupt the involvement of others in terrorism. On a semantic level, however, suspected terrorists may be detained to manifest the coercive capacity of the threatened state. Particularly where the detention in question takes place in a manner that seems to challenge established elements of the rule of law, it may also aim to communicate clearly a state’s willingness to do what it considers necessary to protect its polity and not ‘merely’ to do what is legally permissible. Thus counter-terrorist detention is of a qualitatively different character to other kinds of detention, although that is not to suggest that it is entirely sui generis. Certainly there are ways in which the character of counter-terrorist detention can be said to align with the detention of anti-establishment protesters, particularly in authoritarian or dictatorial states.
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