class: center, middle, inverse, title-slide # Dirty Wars ## Detention ### Jack McDonald --- class: inverse # Pre-Lecture DIscussion .question[ Is detention in armed conflict fundamentally different to detention in peace time? ] ??? --- # Outline Detention is a sphere of activity that is central to war and national security It is also one where many of the themes of the course are demonstrated, including the overlap of different sets of rules, and attempts to get around them Today we'll look at three questions: - Why people are detained - Who can be detained - What the problems are arising from detention ??? Detention is a key feature of both war and national security. The laws of war provide for good treatment of detainees, but this is the end result of a complicated history that has also generated the requirement to detain, rather than execute, captured opponents. This lecture will examine this evolution, alongside the history of detention in law enforcement situations and for the purposes of political repression and mass murder. As we will see, one of the key features of dirty wars are where norms of detention are violated, or where legal requirements are altered in the face of national security threats. Lastly, the lecture will cover the issue of overlapping detention regimes, notably the debates regarding the military detention of terrorist suspects in Guantanamo Bay. --- # Recap: Multiple Roles of Detention .left-column[ ![Pic of Dachau/Gulag](../img/7/dachau.jpeg) ![Pic of Mau Mau Camps](../img/7/maumau.jpg) ![Pic of Gulag archipelago](../img/7/gulag.png) ] .right-column[ - Detention is control on an individual level, situated within context of population control - Detention as preventative measure - Detention can be used as a psychological weapon (secret police, detention centres) - Detention also used to collect evidence - Detention is in the eye of the beholder - one state's evidence collection might be a population's psychological weapon ] ??? --- class: inverse # Part 1: Detention and Dirty Wars ??? Why detain? --- # Why Detention Matters .pull-left[ An ongoing physical demonstration of power Key political/legal question in every society Integral feature of political conflict Unlike lethal force, it can be contested, unlike torture, it is justifiable ] .pull-right[ ![Guantanamo](../img/2021/gitmo.jpg) ] ??? --- # Detention in War .pull-left[ > Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. Geneva Conventions 1949, Common Article 3 ] .pull-right[ Issues: - Detention of POWs, and keeping them alive - Detention of "enemy aliens" at home - Detention of dissidents ] ??? --- # Detention and Political Repression .pull-left[ Political repression is founded upon coercion - credible threats to individuals for their engagement in politics/social life Hallmark of campaigns of state terror is indiscriminate detention using extra-legal processes and sites Similarly, "rule by law" - creating new classes of criminal offences or ambiguous offence categories that result in large-scale individual prosecutions and convictions ] .pull-right[ ![Disappeared in Argentina](../img/2021/argentina-disappeared.jpg) ] ??? --- # Terrorism .pull-left[ ![Northern Ireland H Blocks](../img/2021/h-blocks.jpg) ] .pull-right[ Terrorism raises three key issues - Preventative detention - Detention for identification purposes - Political prisoners Emergency powers typically enable a state's agents to detain without usual constraints on arbitrary exercise of power Relationship between intelligence organisations and detention results in large number of legal/ethical issues ] ??? --- # Detention and Constitutive Rules .pull-left[ ![John Walker Lindh](../img/2021/lindh-capture.jpg) .medium[ John Walker Lindh, US citizen captured in Afghanistan in 2001, interviewed by CIA, military, and FBI, without a lawyer present. Imprisoned for 20 years after a plea bargain ] ] .pull-right[ Many detention controversies revolve around disagreements over the applicability of rules Does the law of armed conflict take precedence over the US Constitution? Does America have to uphold the human rights of those detained in black sites abroad? "State of exception" critiques are often mis-placed in liberal democracies - often the problem isn't so much the removal of rights, but the co-application of different sets of law ] ??? --- # Small Group Discussion .question[ How safe do you feel from arbitrary arrest in your home country? Is your sense of safety universal for average citizens? Why? ] ??? --- class: inverse # Part 2: Detention - Law and Policy ??? --- # Detention as a Mirror .pull-left[ .medium[ ## Recap: 1. Prisoner? What does that mean? 1. Oh look, a ready-made labour force! 1. Someone is going to pay me money to get you back 1. If I don't keep you safe, your friends will kill my captured friends in equal measure 1. If we murder you, then people might not accept us as rulers 1. I am worried what God might say on the flipside 1. It is against the rules of war to kill POWs 1. You are a human being with the right to life ] ] .pull-right[ The ability of state agents to use coercive physical force to arrest and detain is a primordial aspect of state power Sovereignty and constitutions usually have a lot to say about the circumstances in which a person can be detained, and the processes for doing so Often there are substantial gaps between the constitutive rules of society on paper, and the practice of power ] ??? --- # Central Question: Who May Be Detained? .left-60[ .medium[ Typically we distinguish between the powers to stop and arrest/detain a person, and the power to keep them in detention for a prolonged period of time Law enforcement powers of stop and search are typically constrained as they enable relatively arbitrary exercise of power Key constraint: ability of the state to detain a person without charging for committing a criminal offence Military ability to stop/search/detain is usually significantly constrained in domestic settings Police authority derives from domestic law, military authority from domestic and international law... intelligence authority from ?? ] ] .right-60[ .pic80[ ![Brixton Riots](../img/2021/brixton-riot.jpg) ] .medium[ UK's Vagrancy Act of 1824 gave police the ability to stop and search people that they suspected of intent to commit criminal offence Role of sus laws in racial profiling contributed to riots in the 1970s and 1980s, before it was repealed in 1981 ] ] ??? > The degree of civilization in a society can be judged by entering its prisons. Fyodor Dostoyevsky, _The House of the Dead_ --- # Fun One: PIFWCs .left-33[ ![Stevan Todorovic, war criminal](../img/2021/todorovic.jpg) .small[ Stevan Todorović, Bosnian Serb ex-police chief, guilty of crimes against humanity, including cruel and inhumane treatment, murder, sexual violence, physical torture and deportations. ] ] .right-33[ .medium[ > Once the car had been immobilized, operators would smash the window with a sledgehammer, pull their target through the window, and make off with him, shooting any bodyguards who posed a threat, while an outer security perimeter kept anyone who might interfere at bay. The operators had a name for these snatches: _habeas grab-ass_. Sean Naylor, _Relentless Strike_ > They were given a straightforward task. Find the fugitive [Todorović], grab him, and bring him back to Bosnia where he could be arrested legally by peacekeepers from SFOR. As one former US official put it pithily: “We got contractors in, and they did exactly what they were contracted to do.” Julian Borger, _The Butcher's Trail_ ] ] ??? --- # Secret Detention .left-33[ ![Argentina Camp System](../img/2021/argentina-camp-system.jpg) ] .right-33[ Detention is usually constrained by Courts having the power to compel information, or presence of persons detained by the state (writs of habeas corpus in common law) Secret detention is emblematic of dirty wars, either by legally constraining courts, or functionally working around them Note that the law of armed conflict is built around groups like the ICRC having access to detained persons ] ??? --- # Contesting Detention .left-40[ ![Guantanamo Bar](../img/2021/guantanamo-bar.jpg) ] .right-40[ 2001 AUMF gives US President wide authority, interpreted as detention Series of Supreme Court cases establish jurisdiction of US courts, but Supreme Court leaves it to lower courts to decide standards US establishes Combatant Status Review Tribunals (CRTs) and Administrative Review Boards (ARBs) to determine status of detainees in systematic way, and enable release US Congress systematically blocks attempts by Obama to close Guantanamo ] ??? --- # Methods Problem If you want to understand Guantanamo, you need (at least): > The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” US Constitution, Article 1, Section 9(2) .medium[ - _Ex Parte Merryman_ (1861) [Challenges Lincoln's authority to suspend Habeas Corpus in ACW] - _Ex Parte Milligan_ (1866) [Military tribunals can't apply to citizens while civilian courts in session] - _Ex Parte Quirin_ (1942) [Authorises military tribunal jurisdiction over unlawful combatants] - _In Re Territo_ (1946) [Combatant status takes precedence over US citizenship] - _Johnson v. Eisentrager_ (1950) [US courts have no jurisdiction over war criminals held by US in Germany] - _Youngstown Sheet & Tube Co. v. Sawyer_ (1952) [Executive authority in war is not unlimited] ] ??? --- # Small Group Discussion .question[ What kinds of controversies over detention, connected to national security, exist in your home countries? Is there anything that connects the examples in your group? ] ??? --- class: inverse # Part 3: Practical Detention Problems ??? What's the problem? --- # Exits from Detention .pull-left[ - Escape - Set free - Prisoner exchange - Legal challenge/process - Arbitrary release - Death - Lawful execution - Unlawful execution - Mistreatment/natural causes/suicide ] .pull-right[ ![Botany Bay transportees](../img/2021/botany-bay.jpg) (States are no longer allowed to ship people halfway around the world to work for their freedom) ] ??? --- # National Security Detention .left-33[ Typical controversies include - Expansion of search and arrest powers - Alterations to criminal procedure to take account of terrorist threats - Detention without being charged for an offence - Parallel construction of criminal cases ] .right-33[ Anti-terrorism, Crime and Security Act 2001, part 4, gave the Home Secretary the power to certify non-British citizens as terrorists, and detain them indefinitely, required derogating from ECHR Led to huge controversy, and detention of sixteen people in Belmarsh Prison Replaced in the Prevention of Terrorism Act 2005 by Control Orders, used to restrict an individual's liberty In turn, replaced in 2011 by Terrorism Prevention and Investigation Measures (TPIMs) ] ??? --- # Rule By Law? Section 44 of the Terrorism Act 2000 gave senior police officers the ability to authorise stops and searches in an area without reasonable suspicion Shortly after 9/11, Home Secretary and police officers applied this on a rolling basis to the whole of London Kevin Gillan and Pennie Quinton (arms trade protestors) stopped and searched under section 44 in 2003, eventually taking case to ECtHR, which ruled in 2009 that section 44 violated their right to respect for their private life under article 8 of the ECHR Independent Reviewer of Terrorist Legislation, Lord Carlile, finds "ample" evidence of persons being stopped with no connection to terrorism, including stops to "balance" the ethnic profile of persons stopped under section 44 ??? --- # Detention and Warfare .pull-left[ Civil wars and insurgencies are fundamentally partnerships Outside powers can't afford to run parallel prison systems, so often face the prospect of transferring individuals to host-nation justice systems This has significant human rights implications - transferring detainees to justice systems where you know they might be abused is an insoluble problem ] .pull-right[ ![Camp Cropper in IRaq](../img/2021/camp-cropper.jpg) Camp Cropper in Iraq, meant to be "central booking" for US detainees, but had to expand due to lack of detention capacity elsewhere ] ??? --- # Abuse .left-60[ .medium[ > between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force (372nd Military Police Company, 320th Military Police Battalion, 800th MP Brigade), in Tier (section) 1-A of the Abu Ghraib Prison (BCCF). The allegations of abuse were substantiated by detailed witness statements (ANNEX 26) and the discovery of extremely graphic photographic evidence. Taguba Report ] ] .right-60[ Detention systems fundamentally enable the arbitrary exercise of power Controlling prison populations without excessive force requires high degrees of professionalism and process Detention operations don't scale easily, and military ones occur in uncertain environments ] ??? --- # Abandonment .pull-left[ .medium[ - SDF holding 8000-9000 ISIS prisoners, under 2000 from outside Iraq/Syria - SDF doesn't have the capacity to investigate/prosecute/process prisoners - 65,000 ISIS family members detained at al Hol camp > As of July 2020, the Iraqi government also held more than 300,000 people with family ties to ISIS in camps stretching from Fallujah in central Iraq to Mosul in the north. Andrew Hanna, _Islamists Imprisoned Across the Middle East_ ] ] .pull-right[ ![SDF Detention Centres in Northern Syria](../img/2021/sdf-detention-2020.jpg) ] ???