Administrative detention
Many countries[1] claim to use administrative detention as a means to combat terrorism or rebellion, to control illegal immigration, or to otherwise protect the ruling regime.
While criminal proceedings have a retrospective focus – they seek to determine whether a defendant committed an offense in the past – the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future.
In democratic countries using administrative detention as a counter-terrorism measure, the rationale given by its proponents is that legal existing systems are ill-suited to handle the specific challenges presented by terrorism.
Proponents of administrative detention maintain that criminal law's reliance on defendant rights and strict rules of evidence cannot be used effectively to remove the threat of dangerous terrorists.
Some of the reasons often used to support this claim are that the information used to identify terrorists and their plots may include extremely sensitive intelligence sources and methods, the disclosure of which during trial would undermine future counter-terrorism operations.
It is also claimed that the conditions under which some suspected terrorists are captured, especially in combat zones, make it impossible to prove criminal cases using normal evidentiary rules.
Attempting to apply these laws to terrorists who are intermingled with a civilian population and accountable to no-one opens the possibility of indefinite detention without trial, combined with a substantial likelihood of error.
Comparative studies on administrative detention practices of different countries found that those experiencing large-scale influxes of illegal migrants by sea (such as the United States and Australia) typically have the most draconian systems.
[9] Some of these political prisoners, such as Aung San Suu Kyi in Myanmar, have become known worldwide due to the detention, and their cause is championed by human rights organizations.
Armenia has been criticized by Human Rights Watch for not fully reforming the legal framework it inherited from the former Soviet Union, and failing to bring its administrative detention system into accord with prevailing international norms.
[11] The legal basis for this system is found in Australia's Migration Act 1958 (Cth), which authorized the indefinite detention of an unlawful non-citizen who can not be deported immediately.
Any member of the Brazilian Armed Forces may be imprisoned if found to be repeatedly in violation of the Military Disciplinary Regulations (Regulamento Disciplinar) by his or her superiors.
Notwithstanding, members of the Brazilian Armed Forces under administrative detention may be granted a habeas corpus by the justice system to deliver them from imprisonment.
Since the 1978 legal reforms in China, the public security departments (gong'an jiguan), primarily the police, hold administrative detention powers which are used alongside the state's criminal justice system.
[14][15] In the case of the Falun Gong in particular, there have been claims of extraordinary abuses of human rights in concentration camps, including organ harvesting and systematic torture.
In recent years, government policy has been marked by mass surveillance and the incarceration without trial of over one million Uyghurs and other Muslim minority ethnic groups in "re-education camps", supposedly for 'anti-terrorist' purposes.
According to official Irish government statistics, in 2003–2004, a total of 2,798 people were administratively detained for immigration-related reasons, two thirds of whom were held in prison for periods of longer than 51 days.
[33] Within Israel, the Minister of Defense has the authority to issue administrative detention orders for up to 6 months in cases where there is a reasonable chance that the person harms the security of the state.
The District Court can annul such orders if it finds the administrative detention occurred for reasons other than security (mainly for common crimes or the exercise of freedom of expression).
In the early days of the occupation, administrative detention was used in the Gaza Strip to detain youths who were unemployed and not engaged in study, even if there was no suspicion against them.
[39] In August 2015, the Israeli Government approved the usage of administrative detention against Jewish settler suspects to curb the increasing number of "price tag" attacks.
[46] Women who were at risk of violence, honor killing, by family members were administratively detained even though the Crime Prevention Law does not provide a legal basis for that.
The introduction of the Act led directly to the creation of internment camps (particularly Long Kesh (the Maze) and the prison ship HMS Maidstone where suspects were detained, some for protracted periods.
[citation needed] The United States currently uses indefinite detention without trial—known under various names as internment, civil commitment, preventive detention or administrative detention—to hold people who fall within a few narrow categories, including the mentally ill (involuntary commitment) and "sexually violent predators",[53] though the right of habeas corpus still applies, and some determinations regarding mental illness and sexual dangerousness are made by juries.
Under the Act, any person (citizen or alien) suspected of terrorist connections may be administratively detained for up to seven days without the benefit of a habeas corpus proceeding.
The Attorney General of the United States, at his discretion, may extend this seven-day period to six months, and this extension itself may be renewed indefinitely – legally creating the possibility of lifetime imprisonment without ever facing charges.
[55] One of the criticisms of the Patriot Act is that the Attorney General's decision is not subject to any judicial review, unlike the situation in other democratic countries which have similar administrative detention laws.
The United States initially refused to grant these detainees prisoner of war status, holding that they were illegal enemy combatants because they did not meet the requirements set down by the Third Geneva Convention.
The ICCPR does allow a government, under narrow circumstances, such as a public emergency threatening the life of a nation, to temporarily derogate from its obligation not to engage in arbitrary detention.
Based on these guidelines, the group has condemned countries who have used long-term administrative detention when the detainees were held for the mere fact of belonging to an "illegal organization".
