Detention in the ‘War on Terror’: Can Human Rights Fight Back?
UCD School of Law lecturer, Dr Fiona de Londras, has just published her new book entitled Detention in the ‘War on Terror’: Can Human Rights Fight Back? with Cambridge University Press. The book explores how counter-terrorist detention has been dealt with in the US and the UK in the decade since 9/11.
de Londras argues that the introduction of counter-terrorist detention without adequate opportunities for review in the US and the UK can be understood as a product of panic, but where panic is seen as having two dimensions: a ‘top-down’ manufactured panic (in the style of moral panic) and a ‘bottom-up’, genuine, fear-driven popular panic. The combination of these forces is that oppressive measures—such as detention without adequate review—present themselves as measures that can both aggrandise state power and capacity and satisfy a demand for “security”. They can also feed into a distorted discourse of ‘giving up some rights for liberty’, because in fact the rights that are most compromised are those of the ‘other’ rather than those of ‘the people’. Not only have the US and the UK both introduced extensive detention mechanisms (or, now, quasi-detention through control orders in the UK), but they have done so in a manner that tries to minimise the effective capacity of courts or other neutral arbiters to determine the lawfulness of detention in any individual case. de Londras argues that this should be understood as a deliberate attempt to force a downward calibration of international human rights standards around detention and review. Furthermore, she argues that there is a clear attempt by the US and UK combined to hegemonically undermine human rights standards in international law, and especially the right to challenge the lawfulness of one’s detention. Although realist international relations theory would suggest that would succeed, and there are places and times in which international human rights law itself has wavered since 9/11, de Londras argues that by and large international human rights law has demonstrated more resilience than one might have expected. She argues that this could result from the degrees to which international law is insulated from popular, or bottom-up, panic even as it can be subjected to the projection of panic by hegemonic states in a ‘top-down’ way.
de Londras then turns to the cases in the UK Supreme Court (formerly House of Lords) and US Supreme Court on counter-terrorist detention and detects a reduction in deference in the ‘War on Terror’ when compared to other situations of repressive emergency powers such as WWII internment in the US and detention in Northern Ireland. She argues that it is at least possible that the resilience detected in the international human rights to challenge the lawfulness of one’s detention may have emboldened domestic courts to be more resistant to executive claims of deference, necessity, authority and risk than might previously have been the case.
Detention in the ‘War on Terror’ combines insights from criminology, sociology, international relations, constitutionalism and human rights law to present a novel and original analytic framework for counter-terrorist detention since 9/11. Further information about the book is available here.
