International audience ; This article assesses the challenges to a key 'anti-policy' within anti-terrorism: the detention of terror suspects. It analyses the global response to the 2005 kidnapping of a Christian Peacemaker Team in Iraq. Particular focus is given to how detainees in the 'War on Terror' emerged as key spokespeople in the attempt to influence the actions of the kidnappers. So-called 'terror detainees' in the UK and Canada made several appeals for mercy and wrote letters establishing their solidarity with the CPT hostages. Drawing on the political theory of Jacques Ranciere, the article analyses examples of detainee or hostage solidarity as acts of political subjectification. Detention is analysed as a site where key political dynamics are enacted. For detainees to articulate a grievance as an equal or enact an international solidarity is a radical political moment that serves to disrupt the routines and normalizations of the anti-policy of detention.
This inquiry seeks to establish that the global expansion in regimes of noncitizen detention represents a contemporary expression of imperial subjectification under Western liberalism and that such regimes serve a key role in maintaining the capitalist social order. While several efforts have been made to explain the globalization of noncitizen detention practices stemming from the United States, there exists serious shortcomings in the proposed analyses. Namely, existing literature on the subject has failed to adequately account for the history of Western imperialism and the centrality of liberalism as a political ideology in this imperial project. By intervening in the existing analyses with scholarship on liberalism and its role in maintaining the capitalist social order, we can construct a clearer picture of how and why regimes of noncitizen detention have spread across the globe.
Full-text available at SSRN. See link in this record. ; The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention. Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed "sexually dangerous" at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should ...
Seeking asylum is not an unlawful act, yet asylum seekers and refugees are increasingly detained and interned around the world, suffering not only deprivation of liberty but other abuses of their human rights as well. UNHCR's new detention guidelines challenge governments to rethink their detention policies and to consider alternatives to detention in all cases.
The main objective of this study of the European Migration Network is to provide objective and reliable information about the usage of detention and alternatives to detention in international protection and return procedures in Luxembourg. Luxembourgish legislation, namely the amended Law of 29 August 2008 on Free Movement of Persons and Immigration (Immigration Law) and the Law of 18 December 2015 on International Protection and Temporary Protection (Asylum Law), foresees three alternatives to detention: - Alternative 1: Reporting obligations, which includes the obligation to surrender a passport, travel document or identity document; - Alternative 2: Home custody (+ electronic monitoring, if necessary); - Alternative 3: Deposition of a financial guarantee of 5.000€. In principle, the assessment between detention or alternatives to detention is made at the same time as when the grounds for detention are considered, as long as the Directorate of Immigration, as the responsible authority, has all the necessary information to decide if an alternative to detention can be ordered. Furthermore, the possibility to impose an alternative to detention is in principle systemically considered, as both relevant laws foresee that the detention decision is ordered in writing by the Minister on the basis of a case-by-case assessment, where necessary and if other less coercive measures cannot be effectively applied. Grounds for detention are generally rejected in favour of an alternative to detention if the person concerned falls within the category of vulnerable groups and if person is able to proof effective guarantees of representation to prevent the risk of absconding. This latter obligation on the third-country national to revert the legal presumption that there is a risk of absconding remains the main challenge because effective guarantees of representation are not defined by law. This is particularly challenging in the context of return procedures, where this legal presumption exists in nearly all cases where a third-country national has no valid identity, travel or residence documents. In the absence of such effective guarantees of representation, the Minister in charge of Immigration and Asylum generally does not make the decision to apply an alternative to detention. Consequently, the research in the context of this study has shown that alternatives to detention are only rarely used in Luxembourg, with the important exception of home custody in the Emergency Housing Structure of Kirchberg ('Structure d'hébergement d'urgence Kirchberg' – SHUK). The SHUK serves as a semi-open return facility for applicants for international protection and irregularly staying third-country nationals whose fingerprints have already been registered in Eurodac by another Member State and are therefore likely to be transferred to that Member State, in accordance with the Dublin III Regulation. A placement at the SHUK corresponds to home custody. The rare use of alternatives to detention also results in the fact that there is generally not much data available in this regard, with the important exception of home custody in the SHUK, which is more widely used.
On health grounds, immigration detention should be used in very limited ways Like all rich nations, Australia has experienced an increase in people crossing its national borders without the documents authorising them to do so. Since 1992, Australia has had a policy of mandatory detention for these people. About a third of the people in immigration detention are asylum seekers who are requesting sanctuary under the 1951 United Nations Convention Relating to the Status of Refugees, to which Australia was an early signatory. Although some form of immigration detention exists in most developed countries, asylum seekers are generally released into the community after a period of time in detention, while their claims are being processed. Australia pioneered the notion that detention for asylum seekers was a kind of endgame, in which people arriving without authority stayed in detention until they obtained a visa or were deported. Among the Convention signatories, no other nation has followed suit.
Detention and alternatives to detention can be used for immigration-related purposes in Ireland. Detention takes place in Garda Síochána stations and prisons. Throughout 2019, 477 people were detained in Irish prisons for immigration-related reasons, reducing to 245 people in 2020 during the COVID-19 pandemic. Alternatives to detention, such as regularly reporting to a Garda station, however, tend to be used more routinely and in the first instance. This study presents a comprehensive review of legislation and practice on detention and alternatives to detention in international protection and return procedures in Ireland. It is based on the Irish contribution to a European Migration Network (EMN) report comparing the situation in EU Member States. Immigration detention in the EU and the UK has been the subject of considerable academic research; however, there has been comparatively less research on the situation in Ireland, particularly regarding alternatives to detention.
To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonable care standard for dealing with the practical and moral problems of protecting innocent civilians from injury amid clouds of doubt and misinformation, though the application of this standard in the detention context must account for differences such as a temporal dimension, available procedural mechanisms, and political and strategic context. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recommends several ways to remedy them, including through an escalating standard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency.
To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonable care standard for dealing with the practical and moral problems of protecting innocent civilians from injury amid clouds of doubt and misinformation, though the application of this standard in the detention context must account for differences such as a temporal dimension, available procedural mechanisms, and political and strategic context. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recommends several ways to remedy them, including through an escalating standard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency.
This essay considers the circumstances of persons deprived of their liberty in the context of Covid-19. Detention is always intended to be exceptional and the essay explores the extent to which the pandemic impacts upon this exceptional character. First, by increasing the unacceptability of detention, have the rules regarding what may constitute "arbitrary detention" changed? Secondly, for persons serving out prison sentences, to what extent should Covid-19 serve as a justification for early release or commutation of punishment? In this respect, should the goals of retribution and specific and general deterrence be weighed against the rights to health and safety of prisoners and prison staff, and if so, how? Do detaining authorities have absolute discretion to determine which detainees to release or must they ensure that policies of release also, are not arbitrary? To what extent does the arbitrary resort to detention as well as the arbitrary decision to maintain someone in detention during the pandemic, which may heighten certain individuals' exposure to the disease and thereby produce extreme anxiety, give rise to cruel, inhuman or degrading treatment or punishment, if not torture? The paper considers how governments, specialist agencies and courts are beginning to grapple with these legal, ethical and public health issues. On the one hand, recognition of the heightened health risks for detainees associated with the pandemic is proving to be an important opportunity to reduce reliance on detention – and thereby to make good on the intention for detention to be recognised as an exceptional measure. Yet on the other hand, as will be shown, the selectivity of approaches and lack of transparency and oversight of decision-making has put some detainees at even greater risk of harm.
There has traditionally been a special relationship between the state, its citizens and the territory it controls, often thought of as a form of contract binding the three together. Huge shifts have occurred in recent years, however. Increased international mobility means non-citizens are showing up, legitimately or illegitimately, in unprecedented numbers. Consequently, "the immigrant" has become a new political and administrative object for (Western) states. The states, in turn, are developing new systems for the greeting, evaluation, classification and ultimately either integration or deportation of the outsiders at the border. Criminological scholarship has in recent years brought renewed attention to the transformative impact of migration on issues of crime and justice. Generally speaking, the focus has been on the impact of migration on crime practices and crime rates. Researchers have particularly focused on immigrant gangs, various forms of migration-related crime and the deepening of urban marginality. While acknowledging the importance of these contributions, we want to argue that there is also a need to describe systematically the specific impact that migratory flows have had on the everyday life of people on "both sides" in the migration control system. Migration control is, as migration itself, an intrinsically transnational phenomenon and thus challenges traditionally national footing of state policies and state laws. It involves measures within and beyond national and European territories. These practices create novel spaces and notions of territoriality: 'in between spaces', borderlands or what Saskia Sassen has called 'third spaces'. Our objective is to examine the spaces where national systems of justice meet their limits. We want to study these institutions ethnographically, "from the ground up", partly to compare different institutions in different jurisdictions and partly to explore whether it makes sense to see these institutions as part of the same development on the European level. ; info:eu-repo/semantics/publishedVersion
Testimony issued by the Government Accountability Office with an abstract that begins "In fiscal year 2007, Department of Homeland Security's (DHS) U.S. Immigration and Customs Enforcement (ICE) detained over 311,000 aliens, with an average daily population of over 30,000 and an average length of stay of about 37 days in one of approximately 300 facilities. The care and treatment of aliens while in detention is a significant challenge to ICE, as concerns continue to be raised by members of Congress and advocacy groups about the treatment of the growing number of aliens while in ICE's custody. This testimony focuses on (1) the extent to which 23 facilities complied with medical care standards, (2) deficiencies found during ICE's annual compliance inspection reviews, and (3) the types of complaints filed by alien detainees about detention conditions. This testimony is based on GAO's July 2007 report evaluating, among other things, the extent to which 23 facilities complied with aspects of eight of ICE's 38 National Detention Standards. This report did not address quality of care issues."
Despite efforts by two presidents to end U.S. detention operations at Guantanamo Bay, Cuba, closing Guantanamo has proven to be an extraordinary challenge. Some of the reasons why are historically common problems of prisoner repatriation, such as finding host countries for those who cannot be repatriated without facing the risk of persecution. Yet one significant contemporary obstacle to Guantanamo closure is without identifiable precedent: statutory spending conditions sharply restricting the President's ability to transfer detainees away from the prison. As this essay demonstrates, in none of the major wars of the past century did Congress impose any such restriction. Rather, for the thousands of prisoners held during these wars, including hundreds of thousands held in the United States, the disposition of prisoners was invariably handled by the executive branch. One need not embrace this historical practice as evidence of constitutional meaning to recognize its salience in current statutory and policy debates. Contrary to contemporary suggestions that the Guantanamo population presents unique challenges, U.S. history reveals prisoner repatriation to be common for prisoners whose home countries were politically unstable or in the midst of continuing conflict; prisoners who still harbored violent intentions toward the United States; and prisoners sympathetic to ideologically committed groups who continued to pose short- and long-term threats to the United States. Such factors are challenges indeed. But, as this essay seeks to demonstrate, they are deeply and historically familiar features of the end of war.
This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the "hardline" position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the duration of the armed conflict in which the organizations they are affiliated with participate. Part Two describes judicial and quasi-judicial challenges to the "hardline" position, and Part Three addresses recent developments in IHRL relating to the co-application of IHL and IHRL and the extra-territoriality of certain IHRL norms, and specifically discusses developments relating to the application of IHRL norms governing security detentions. Part Four concludes by offering an IHRL-based perspective to security detention policy and, in particular, to aspects of the policy leading to de facto indefinite detention.
Mexico ratified the Convention relating to the Status of Refugees and the 1967 Protocol in April 2000. While Regulations establishing a mechanism for eligibility determination were issued at the same time, the Mexican government began a transitional process to take over eligibility in March 2002. Prior to that time, the UNHCR had been recognizing refugees under its mandate. As of this writing no national policy regarding the detention of asylum seekers has been established, nor have refugee advocates begun to pressure the government to comply with Article 31 of the Convention. Rather, whether an asylum seeker is detained during the eligibility process depends in part on the place and timing of the request as well as on the knowledge and goodwill of the migration authority. ; Le Mexique a ratifié la Convention des Nations Unies relative au statut des réfugiés et le Protocole de 1967 au mois d'avril 2000. Alors que des règlements établissant un mécanisme pour déterminer l'admissibilité ont été émis au même moment, le gouvernement mexicain a mis en place un processus transitionnel visant à prendre en charge l'admissibilité en mars 2002. Jusqu'à cette date, c'était la HCR qui, comme partie de son mandat, s'occupait de la reconnaissance du statut de réfugié. À l'heure de la rédaction du présent article, une politique nationale de détention des réfugiés n'avait pas encore été établie, et les défenseurs des réfugiés n'avaient pas non plus commencé à faire pression sur le gouvernement pour qu'il se conforme à l'article 31 de la Convention. Au contraire, qu'un réfugié soit détenu ou non durant le processus d'admissibilité dépend en partie du lieu et de l'heure de la demande, aussi bien que du niveau de connaissance et de la bonne volonté de l'agent de l'immigration.
