Getting Real: Reforming international law governing the detention of terrorist suspects

That such an absurd view could gain currency in legal circles is a symptom of the legal thought process, in which every event is stuffed into the strait-jacket of precedent. September 11 was not a crime, but the most obvious Western manifestation of the new face of war, which military strategists have been discussing for well over a decade.

Again, consider the practical consequences of accepting the view of the international law clique.

The ICCPR requires an arrested person to be informed immediately of the charges against him, with a right to take proceedings before a court to determine the lawfulness of his detention without delay.

It sets out the requirements for trial of a person charged with a criminal offence. These embody the full panoply of evidential rights to which we are accustomed in the West, enabling the accused to examine the witnesses against him, to have legal counsel of his choice and to be tried without “undue delay”.

Such rights are entirely inconsistent with an effective campaign against global terrorism. It is all very well to extend habeas corpus to an accused car thief in Manhattan, or even an alleged murderer in Sydney. It is quite another to extend it to an Al-Qaida suspect detained by troops in the tribal badlands of the Afghan-Pakistani border and drag frontline soldiers back to the district court in Washington each time they detain a suspect.

Counter-terrorism, by its very nature, involves the collection of intelligence by clandestine means. Revealing all evidence to the accused would mean revealing the identity of covert operatives and the capabilities of technological surveillance measures, undermining the capacity of the authorities to thwart terrorist plots. And courts have already heard allegations of legal counsel sympathetic to the terrorist cause relaying instructions from the accused to terrorist associates.

Al-Qaida is not an organised crime syndicate. Crime syndicates do not wage war against sovereign nations. Al-Qaida may be stateless, but it is not without state support. It represents the asymmetric future of warfare.

Prior restraint has no place in the criminal justice system. Therefore, fighting Al-Qaida under the criminal model would make the prevention of attacks virtually impossible. In the wake of September 11, no society would accept such fetters on its capacity for self-defence.

The search for solutions

Attempts to accommodate the war on terror in the framework of existing international law are doomed to failure. As is often the case, real world developments have left the legal fraternity struggling to fit a square peg into a round hole. At its most inane, the fraternity asserts that abandoning counter-terrorist measures will actually reduce terrorism - a nice argument for Toorak dinner parties, but one which highlights to the public the unreality of the international law perspective.

The danger is that, by making themselves irrelevant to public debate, international lawyers and civil libertarians have ceded the battlefield entirely to government and its security services. Politicians, spies and policemen are risk-averse by nature; they know that a single successful attack will see them blamed for not doing more. The result, at Guantanamo Bay, is a system of indefinite detention, subject to limited review, the scope of which is still a matter before the courts.

Instead of vainly endeavouring to fit the square peg into the round hole, international lawyers should advocate a new hybrid regime, to be embodied in a new convention, reflecting the unique challenges posed by international terrorism.

The regime should recognise that “where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker”. It must also recognise that the "zone of hostilities" is now global.