The legal regime governing treatment and procedural guarantees for persons detained in the fight against terrorism
Jelena Pejic and Cordula Droege
Counter-terrorism strategies in a fragmented international legal order : meeting the challenges
Cambridge : Cambridge University Press, 2013
The term "terrorist" has been marked by inverted commas not to downplay the extremely serious nature of terrorist acts, but to indicate that the designation has become almost legally meaningless. It is habitually used to cover both violent attacks directed against the general population in peacetime, which are prohibited by several bodies of law, as well as the use of force against legitimate military objectives in armed conflict, which are not prohibited under international humanitarian law (even though they remain prohibited under the domestic law of the detaining state). Thus, any attempt to examine the legal framework governing the response to conduct colloquially labelled "terrorist" must take into account the context in which it took place: peacetime or armed conflict? This chapter attempts to briefly outline the rules governing the treatment of persons detained and their procedural rights based on this contextual distinction, with situation of armed conflict, i.e. international humanitarian law, serving as the starting point. As will be shown, in some cases the rules are the same regardless of the situation at hand, whereas in others they differ. The analysis focuses on (1) the rules governing treatment; and (2) procedural safeguards applicable in detention, in particular security detention.