I nternational human rights law recognizes that all persons should be protected from interference with the right to liberty except under defined and limited circumstances. At the same time, international human rights law also recognizes that those in detention require special protection due to their vulnerable position (vulnerable because they are entirely in the power of the state and, due to their imprisonment, are at higher risk of abuse). The right to liberty is therefore a test of the legality of detention and a procedural guarantee. The key protections in this context are three-fold: • the prohibition on arbitrary detention. Detention can only be justified on specified grounds; • the right of all persons deprived of their liberty to challenge the lawfulness of their detention before a court (through the legal procedure known as habeas corpus) and to have the detention reviewed on a regular basis. Of particular concern here is incommunicado detention;420 and • the rights of persons while in detention, including the physical conditions, disciplinary systems, use of solitary confinement and the conditions under which contacts are ensured with the outside world (including family, lawyers, social and medical services and non-governmental organizations). From a counter-terrorism perspective, understanding the right to liberty is particularly important. In combating terrorism, an instinctive way of responding to the problem of potential terrorist acts is to detain those that may be thought to be involved. In countering terrorism, the ability of law-enforcement agencies to detain suspects quickly and effectively is a high priority. Consequently, the detention of those considered to be likely to engage in acts of terrorism will inevitably form a key element of any counter-terrorism strategy. It is important to ensure that that aspect of the strategy is lawful. Where there is an emergency that threatens the life of a nation, as has been explained above, it may be possible to temporarily suspend the guarantee of the right to liberty and some of the procedural safeguards that come with it.421 In the absence of such a declared emergency, however, the right to liberty and all of its safeguards have to be complied with. In the counter-terrorism context, particular issues from a human rights perspective in relation to the right to liberty are: • • • • access to a lawyer; access to court to review and/or challenge the detention; detailed reasons for arrest; information concerning charges. International human rights law has laid down detailed criteria about when it is lawful to detain people and how such people should be treated in detention. In international human rights law, the liberty and security of the person is protected by Article 9 of the ICCPR and Article 5 of the ECHR (see box above). Article 5 of the ECHR is more precisely worded than Article 9. Additionally, the case law under Article 5 of the ECHR is more comprehensive and extensive. In explaining how the right to liberty works in international human rights law, this 420 See pp. 126 and 158-159. 421 See the section on derogation at pp. 87-91 above. Countering Terrorism, Protecting Human Rights 147