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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
assurances being used in non-terrorism cases – another example of counter-terrorist
measures seeping into other domains.254
3. Administrative detention
Administrative detention on national security grounds – imprisoning or severely
restricting someone without charge or trial – is not a new phenomenon. The practice
of administrative detention has, however, increased, and taken on new features,
since the 9/11 attacks. The Panel heard extensive evidence around the world
suggesting that the extension of, and changes to, such practices pose a serious
threat to well-tested principles of the rule of law.
Administrative detention, at the hands of the executive, on national security grounds
supposedly has as its priority the detention of someone perceived to pose a security threat, and the prevention of a criminal act before it occurs, rather than the
punishment of a wrongdoer after the fact. Some States appear to rely increasingly
on administrative detention as a preventive measure instead of seeing the measure
as exceptional and temporary, and necessarily linked to a genuine emergency.
Administrative detention includes not only imprisonment but also forms of house
arrest, or movement restrictions, which amount to de facto loss of liberty (the issue
of control orders is discussed later).
Impact of administrative detention
In Chapter Two, it was made clear that the use of administrative detention in the past
has led to serious human rights violations. In the Panel’s Hearing in the Southern
Cone (of Latin America), witnesses testified to the wide-scale and gross violations
of human rights – such as torture, disappearances and extra-judicial executions –
that occurred under the auspices of administrative detention.255 A similarly stark
message was conveyed to the Panel at its Hearing in North Africa, regarding the
administrative detention powers used in Algeria in the 1990s. In Northern Ireland,
there is general agreement that the practice of internment in the early 1970s fed
and fuelled the conflict, by facilitating serious human rights violations, and feeding
pre-existing grievances about discrimination and injustice. The Panel was therefore
concerned to hear that similar concerns were being raised about modern-day practices of administrative detention.
Concerns over the practice of administrative detention were raised in particular in
the Hearings and evidence concerning Australia, Canada (in relation to detention
254 The Panel heard that the Canadian Government secured diplomatic assurances in non-terrorist cases from
foreign governments known to systematically practice torture – such as the case of a Chinese asylum seeker
suspected of bribery and smuggling. See the summary of the EJP Canada Hearing with reference to the oral
testimony by Human Rights Watch.
255 For example, oral testimony by Soledad Villagra, lawyer from Paraguay. EJP Southern Cone Hearing.
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