110 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights It is clear from this account of the material gathered in Hearings around the world, and the past experiences, that the policy and practice of administrative detention has given rise to many human rights violations. It is equally clear that the problems with the practice arise in part because there are lesser guarantees available to administrative detainees than are accorded to criminal suspects (for example, prompt access to the courts and counsel of one’s own choosing). Moreover, the measure is typically applied on an ill-defined basis (such as a generalised threat to national security), often based on unsubstantiated intelligence about the threat posed, and tends to affect a wide range of persons, including those who have no involvement at all in terrorism. In light of all this, the Panel thought it vital to reiterate that administrative detention must be limited to genuine declared states of emergency threatening the life of the nation. Even in a bona fide emergency, administrative detention must be strictly necessary, proportionate to the threat and non-discriminatory; it must allow for prompt access to legal advice of one’s choosing; effective habeas corpus; provision must be made for the courts to decide on the lawfulness of detention; judicial review must allow for both substantive and procedural challenges; detention must be time-limited; and all individuals subject to administrative detention should as a rule be accorded treatment of the same standards as that accorded to prisoners accused of criminal offences. 4. Control orders One preventive measure that has obtained prominence in recent years has been the control order – an administrative measure that imposes a range of restrictions on the activities of an individual but falls short of full detention or expulsion. These orders arose largely as a result of their introduction in the United Kingdom in response to the 2004 House of Lords decision which struck down the regime allowing for the indefinite detention of non-citizens who could not be deported (see above). The Panel received testimony about the operation of control orders in Australia, France,269 the Netherlands,270 and the United Kingdom (and the fact that the Danish Government is reportedly considering their introduction). While the nature and extent of restrictions vary depending on the scope of the order, the severity of these restrictions – and particularly their cumulative impact – can make 269 In France the authorities can place restriction orders on foreigners, such as assigned residence orders. Such orders can be used as a milder alternative to deportations. See written submission by Human Rights Watch, EJP European Union Hearing. 270 See written submission by Nederlands Juristen Comite voor de Mensenrechten (NJCM), EJP European Union Hearing, referring to the Law on Administrative Measures for National Security (Wet bestuurlijke maatregelen nationale veiligheid) which allows for certain geographic or other communication prohibitions and reporting obligations to be placed on individuals that are suspected of being connected with terrorist activity or with supporting terrorism. These measures can be based on intelligence reports, and there are limited opportunities to contest (or subsequently secure remedies) against the measures imposed.