On Liberty: Detention in New Forms of Armed Conflict
Harvard International Review › Vol. 31 Nbr. 1, April 2009
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Summary
On Sep 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars in economic loss. On September 12, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and reiterating the right of states to use armed force in self-defense. NATO, for the first time in its history, invoked the obligation of collective self-defense under Article 5 of the NATO Treaty. Well known evidentiary and procedural problems limit the value of prosecution for counterterrorism. But the most fundamental problem -- unpleasant to articulate -- is the standard of proof. People are left with a need for preventive detention, in a small set of cases in which the magnitude of the harm exceeds the limitations of the criminal law. The law of war recognizes the legality of such detention but provides few parameters for its application.
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Extract
On Liberty: Detention in New Forms of Armed Conflict
On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars in economic loss. On September 12, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and reiterating the right of states to use armed force in self-defense. NATO, for the first time in its history, invoked the obligation of collective self-defense under Article 5 of the NATO Treaty. On September 14, the US Con...
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