Talk:Extrajudicial detention/Archive 1
|NOTICE, please do not remove from top of page.|
|While this article uses material that first appeared on the wikipedia, I was the author there too.
|George Swan 17:52, 18 October 2007 (CDT)|
- 1 Article coverage
- 2 Article
- 3 Further discussion
Welcome, George. Please have a look at CZ:Article Mechanics--we would like to develop a (neutral, of course) narrative here, not just have a list of brief sections. This means CZ will have fewer sections and lengthier, "meatier" sections.
Your definition would seem to apply to ordinary prisoners of war, e.g., Al Qaeda militants captured and held in Iraq. Is that the intention? --Larry Sanger 18:38, 18 October 2007 (CDT)
- Thanks for your note.
- I was not an expert on the Geneva Conventions prior to the reading I did researching articles for another wiki. But I do know a lot about some sections of it now. It is recognized by the Bush Presidency that captives apprehended in Iraq are all entitled to the protections of POW status. With the exception of the (100?) or so "ghost prisoners" Rumsfeld authorized the US military to keep "off the books" I believe that none of the captives in American custody in Iraq should be considered to be in extrajudicial detention. In principle the Geneva Conventions and other national laws and international agreements authorize their detention.
- The 772 captives who were held in Guantanamo, and a similar number who are held in detention in Bagram and Kandahar are held in extrajudicial detention. Their detention is not authorized by any law or treaty -- merely by President Bush's assertion they are "enemy combatants". The unknown number of captives who were held secretly in the CIA's "black sites" are also being held in extrajudicial detention.
- I am going to take the liberty of starting a couple of mini-essays to respond to some of the other points in your note. I don't want to clutter up this talk page with material that is not strictly about this article.
- Cheers! George Swan 09:33, 19 October 2007 (CDT)
Please do not start any political essays on this page. I will delete them if you do. My note's point was very simple, and does not require essays to respond to. --Larry Sanger 11:47, 19 October 2007 (CDT)
Extrajudicial detention is the act of holding captives, by a state, without ever laying formal charges against them.
Detention without charge, sometimes in secret, has been one of the hallmarks of totalitarian states.
the writ of habeas corpus
In English speaking democracies, since the thirteenth Century signing of the English Magna Carta, persons detained or imprisoned without legal process were able to call upon the writ of habeas corpus — literally "you have the body". This was a legal challenge which could be made by an individual whereby the state was required to demonstrate to a court that there was a reasonable and legal justification for the detention of that individual.
Detention without charge by democratic countries
In recent decades some democratic countries have introduced limited mechanisms where individuals can be detained without being charged or convicted of a crime. See, for example, the Canadian Minister's Security Certificate.
The United States use of extrajudicial detention during the "war on terror"
- Michael Jacobson. How to Handle Terrorist Suspects: No Easy Answer, Washington Institute for Near East Studies, November 14, 2007. Retrieved on 2007-11-22.
- George W. Bush, President of the United States (November 13, 2001). Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Whitehouse. Retrieved on 2007-10-10.
- Donald Rumsfeld Secretary of Defense (July 7 2004). Order Establishing Combatant Status Review Tribunal. Department of Defense. Retrieved on 2007-04-26.
- Combatant Status Review Tribunal. Department of Defense (October 15 2006). Retrieved on 2007-04-26.
- Pakistan's leaders must respect the rule of law, The Times, November 14, 2007. Retrieved on 2007-11-22.
- Heather Williams. Alberto Gonzales is a Criminal, Not a Speaker: Bringing the former Attorney General to campus would not contribute to any discussion, The Student Life, November 16, 2007. Retrieved on 2007-11-22.
- Nicholas Wood. Macedonia anxious about joining EU, International Herald Tribune, Tuesday, December 13, 2005. Retrieved on 2007-11-22.
- Alexandra Marks. How New York City fights terror now, Christian Science Monitor, September 11, 2006. Retrieved on 2007-11-22.
- Bikash Sangraula. Nepal's children forced to fight, Christian Science Monitor, June 28 2005. Retrieved on 2007-11-22.
- Christopher J. Le Mon. Letters to the editor, International Herald Tribune, December 5, 2003. Retrieved on 2007-11-22.
- Patrick Moore. The Serban Quagmire, Radio Free Europe, Thursday, 24 July 2003. Retrieved on 2007-11-22.
Please do edit the article so as to address my concerns before posting it back to the main page. This is, obviously, a politically incendiary topic. In the past, we have made it our practice to work on politically incendiary articles on talk pages before posting them. Thanks. --Larry Sanger 11:50, 19 October 2007 (CDT)
- Well, it is incendiary only because it is current and poweful political interests are suppressing information and legal accountability. I don't think it is a problem to write an academically strong article on the topic. You might care to check out the latest scandal in the UK on alleged US extra-judicial sites on UK Overseas Territories rented out to the USA (for which arrangement, Blair ignored a High Court ruling allowing the natives of the islands to return after unlawful expulsion decades ago).
- To a great extent, this sort of article should tie in with "political propaganda" and "censorship" -- two articles which need to be sorted out on CZ. These things were known to cognoscenti [including me] for some time, and continually denied by governments and agencies. --Martin Baldwin-Edwards
Just adding your signature, Martin. ;-)
It is incendiary, of course, because many American conservatives disagree with the progressive position that something terribly wrong with the current U.S. policy of extrajudicial detentions. Some progressives use this issue as a bludgeon to bash the current administration, Republicans, and even the U.S. generally; naturally, the target of these criticism will defend the policy.
Obviously, Neutrality Policy requires that the article be written so as to explain the competing theories about extrajudicial detention all as sympathetically as possible. This means that either those conservatives and those progressives are made equally happy (if they accept that all sides must be sympathetically presented), or else equally enraged.
I'll be curious to see if you can actually achieve this lofty goal. :-) --Larry Sanger 20:30, 19 October 2007 (CDT)
- Well, given current and recent headlines in the U.S. and elsewhere, I doubt that we'll be able to write this article without angering more than a few people. So let's aim for "equally enraged." ;-)
- In all seriousness though, let's work on developing these articles. If we want to call attention to CZ's higher level of professionalism, I can't think of a better method than to produce a really high quality approved article on a topic like extrajudicial detention.
- Just yesterday I went to a talk by David Cole (the lawyer who represented Maher Arar). I should have asked him to submit a signed article... --Joe Quick 21:01, 19 October 2007 (CDT)
- There is no problem to explain competing views, at all. People simply disagree about fundamental principles of democracy, law and human rights. Actually, this sort of article is wonderful as an illustration of western democracy in practice, in the sense that there is a massive gap between governments and electorates everywhere excpet the USA (where there is quite some support from conservatives). This has resulted in another massive gap between the USA and Europe, even though most European governments are complicit with the US administration in these activities. Overall result, a [temporary?] crisis in democracy in the developed world.--Martin Baldwin-Edwards 21:11, 19 October 2007 (CDT)
- That too is your analysis, no doubt shared by many, but very far from all. Anyway, let's stop with the political statements, and get on with the writing, shall we? --Larry Sanger 09:54, 20 October 2007 (CDT)
- I don't consider an analysis which is supported by all the objective evidence (such as public opinion polls) and takes no side in the debate, to be a political statement. This is valid, even if the analysis is incorrect. I think you should consider your own competence to see these things objectively, Larry. That people disagree about important things is normal, and we need to describe that state of affairs in a reasonable and detached fashion. In our previous disagreement about the reporting of Ahmedinajad's speech in NY, your reaction to the situation was far from neutral. There remain massive problems with the Neutrality Policy, and you pretend that they have been resolved. I agree with the principle of neutrality, and this is something we all have to work on. Including you, Larry.
- That too is your analysis, no doubt shared by many, but very far from all. Anyway, let's stop with the political statements, and get on with the writing, shall we? --Larry Sanger 09:54, 20 October 2007 (CDT)
- For this article, I will make some contribution but not immediately, as I have too much research to finish by next week. I do not intend to write things here without serious research and evidence to back up everything, and this will take time. I will look in while taking breaks from my own writing and marking, over the next days.--Martin Baldwin-Edwards 11:48, 20 October 2007 (CDT)
- Martin, a few points. First, the neutrality policy has been explicitly accepted by all Citizens. Consequently, if a Citizen were actually to believe that there are "massive problems" with it, I'm sorry to point this out, but he would in fact obligated to leave the project. Otherwise, his underwriting of it would be fraudulent. I'm quite serious about this: Martin, please don't think that you will be able to change the substance of the policy. I guarantee that you'll be disappointed. It's part of our fundamental principles. The only thing that might change, in the future, is its expression, for purposes of clarity. Second, in acting as editor-in-chief in these discussions, I mean only to state general principles about neutrality, which I believe I am competent to do; neutrality is something I have thought and written about a great deal about, and researched, for a long time.
- You stated, "your reaction to the situation was far from neutral." First of all, I'm not aware of having expressed any reaction to the situation at all--only to how our neutrality policy was or wasn't being followed. Second, reactions are not the sorts of things which our policy concerns. One's emotional reactions can be as strongly politically motivated as one likes--I don't care about that--as long as one is willing to write sympathetically for your political opponents as well as oneself. Texts are neutral or not: that's what our policy concerns. In short, texts are neutral if they represent the range of positions sympathetically, and do not simply assert views that significant portions of the population, or significant minorities of experts, disagree with. Views that others disagree with--views the correctness of which we might (but should not) debate on a talk page--should be expressed sympathetically and attributed, but not simply asserted. That's what I'm concerned to enforce, as editor-in-chief.
- Finally, let me say that I find your criticism of me disappointing, but permissible. There must be a special exception to CZ:Professionalism for myself and others in positions of authority.
- Now, I find this latest exchange unpleasant, and I'd prefer to take it to e-mail--and, if you would like to lower the temperature here on the wiki, you may feel free to remove this exchange. For the reasons just stated, I wouldn't do so myself. --Larry Sanger 22:21, 26 October 2007 (CDT)
Hi all. Please do return to the subject of Extrajudicial detention on this talk page. Any comments or discussion of other policies can be carried to those particular talk pages. --Matt Innis (Talk) 22:48, 26 October 2007 (CDT)
Larry, I've been thinking about your comments. First let me assure you I agree with this and other articles being neutral. I think at least part of your concern is based on a misconception. It seems you think that there are two sides here -- on one side human rights advocates who describe the captives as being held in extrajudicial detention -- and another side who insists the captives are simply POWs, whose treatment has been completely in accord with how POWs should be treated.
If that is what you meant I think you are mistaken. It has been Bush policy since mid fall of 2001 that captives taken in the "war on terror" are not entitled to the protections of the Geneva Conventions.
Do the spokesmen of the Bush Presidency call the detention extrajudicial detention? No. But they don't present the detention as being authorized by the Geneva Conventions, and they don't present it as being authorized by the captives breaching any laws. The detention of the Guantanamo captives, the Bagram and Kandahar captives, and the captives in the CIA's network of black sites is only authorized by executive order. And the Bush Presidency has never argued otherwise. IANAL. If one of your subject area experts IS a lawyer, maybe you could have him or her review this discussion. As I understand it extrajudicial is not synonymous with illegal -- its literal meaning is outside the law.
So, sympathetically presenting the view that they are POWs, and have been treated as such isn't necessary or possible. That was never official policy.
I hope this sets at least some of your concerns aside.
Cheers! George Swan 01:06, 27 October 2007 (CDT)
- I agree with this, George. It is a fundamental part of US and also UK policy to place government actions outside of the rule of law —for example, by locating camps in places like Guantanomo, but there are many other techniques. This is why the whole discussion is not simply a matter of opinion about law and/or policy, it is actually a fundamental issue concerning conceptions of democracy, of the power of the state. etc. Interpreting the CZ neutrality policy in this article should not be so difficult, whereas in an article about democracy or the role of the state it is much more difficult. --Martin Baldwin-Edwards 01:24, 27 October 2007 (CDT)
Added Military Workgroup; will add Law
Since the bulk of the George W. Bush Administration rationale for extrajudicial detention is justified under national security policy, the Military Workgroup seems quite relevant. Law should be obvious, as this is not simply a matter of politics. Howard C. Berkowitz 14:47, 1 November 2008 (UTC)
Begin at the beginning
What does the term actually mean? Start with etymology. Judicial is from judex, judge, so extrajudicial detention ought to mean detention not authorized by a judge, right? How about detention? Is arrest detention? If not, why not? If so, arrest without judicial warrant is extrajudicial detention.
Now what about the concept of arrest without charge, which the draft article above seems to think is synonymous with extrajudicial detention? Why should it be? On this side of the pond the police can hold someone only a few days without authorization from a judge, so after that it's not extrajudicial, right?
What does charge mean anyway? On this side of the pond there's been a lot of argument about this. Critics of the government say its period of pre-charge detention is the longest in any democracy. The government reply that continental legal systems haven't got anything exactly corresponding to our system of charging.
Habeas corpus, by the way, simply means anyone detained has the right to a judicial hearing to determine whether their detention is legal. It doesn't say what the law has to be on the subject. The law could say the government, or the police, can detain anyone they like for as long as they like for any reason, without affecting habeas corpus. And if someone applies for the writ & the judge rules the detention legal, then it's been validated by a judge & is therefore no longer extrajudicial, right?
- My understanding is that "habeus corpus" translates literally as "have the body". It forces the authorities to either lay a charge or release the person in question. I do not know the finer points, and it no doubt varies between countries, and there may be exceptions under some laws, but I think that is the basic principle. Sandy Harris 13:50, 21 November 2008 (UTC)
- That's the way it works because detention without charge is illegal, not because that's what habeas corpus "is". Peter Jackson 15:54, 21 November 2008 (UTC)
- The literal meaning is as you say, with the clarification that the verb is in the subjunctive mood, not the indicative. It means you must bring the individual in person before the court for a hearing. Peter Jackson 15:56, 21 November 2008 (UTC)
- If one is speaking of international law, or the laws of multiple countries, habeas corpus is specifically a concept from the English-derived common law. It is not a concept in the Roman-French derived civil law.
- Ignoring countries that really don't concern themselves with legal codes, the only particularly relevant rules come from the Geneva Convention rules on reporting POW status to a Protecting Power, who, in turn, informs the government of the prisoners. If the prisoners aren't especially responsible to a national government, this breaks down very quickly. In like manner, universal jurisdiction treaties and customary international law for things such as piracy and slavery don't require reporting.
- So, some scoping is very necessary. Extrajudicial detention may, indeed, be an inherently flawed title if you are talking in a broader context than U.S. law. Even habeas corpus varies in Common Law countries; Canadian courts generally allow a prisoner to be held, without formal charges, longer than in U.S. courts. Canadian and U.S. law enforcement, for more routine matters, tend to have a reverse view: Canadian law potentially allows more police power but custom tends to restrain it, but U.S. law, while stricter, is more often overridden.
- That was just what I was asking. In terms of topical issues, I assume over there it's mainly Guantanamo, while here it's police detention of terrorist suspects for questioning. Peter Jackson 12:08, 22 November 2008 (UTC)
- First, I am completely open to renaming this article, which won't hurt much given there's no content on the main page. Some existing links to this title would have to change.
- Second, I'd be careful about topical issues in general at this level; I can think of quite a few other countries besides the U.K. and U.S. that are having problems related to detention. Topical issues are quite reasonable in a series of systematically linked, fully accessible, subarticles. POW handling, you observe correctly, does not, under the Geneva Conventions, require a judicial process. On the one hand, there is the argument that judicial determinations may, or may not, be needed to decide if someone is eligible to be a POW. On the other hand, there is not worldwide acceptance of all concepts of universal jurisdiction; examples include Pinochet and other issues raised by the International Criminal Court, summary or multinational authority over pirates in international waters, etc. Indeed, one topical issue is quite active in the waters off Somalia, where it appears that the UNSC, Somali government, several multinational organizations, and both formal (UNCLOS) and customary laws of the sea authorize the use of deadly force, not mere detention. Howard C. Berkowitz 13:04, 22 November 2008 (UTC)
- My mention of topical issues was a response to the question of what the article is supposed to be about. That is, that's what most contributors are likely to be interested in. Peter Jackson 11:35, 24 November 2008 (UTC)
- Can you accurately speak for the interest of "most" contributors? In any event, one issue that is being discussed is having CZ provide a way for readers to find subjects, other than by a search engine. Strict hierarchy, as in a paper encyclopedia, is a starting point, but an imperfect one. Given that there is not even agreement on the title or scope of the article, and there are no standard names for some of the topical issues, that's a real problem.
- In some of the reviews of people trying to understand how to make CZ better, one of the themes is that a significant potential tool is a well-organized set of Related Articles pages, with extensive linking. Hypothetically, if one did not know a specific case or policy, such as a topical matter of an Israeli detention of a Palestinian, or a Russian detention of a Chechen, one might be able to find the topic by starting at a "law" or "military" page, or perhaps name of country, and work one's way down to a page that gets to the subject of interest. Setting up drafts of such Related Articles pages, even without having an associated full article, can be very helpful.
- One way to judge what contributors will do is to see what gets written, but also listen to community feedback about whether the topics seem useful and objectively written. Certainly, the talk page is a place where needs for specific articles can be described; I and others certainly have started articles because there seemed a well-defined question on which I knew something of an answer. So far, respectfully, I've been hearing what you don't like, rather than even a question that could try to answer. Howard C. Berkowitz 15:32, 24 November 2008 (UTC)
All I'm suggesting is that people who want to write about such topics should carefully analyse what it is they want to talk about and then try to find a precise and accurate term for it. Maybe different things for different people. I've simply explained in detail why I think this title is unsuitable for anything people seem likely to want to write about. Peter Jackson 15:57, 24 November 2008 (UTC)
Prisoners of war are not normally held under judicial order & nobody seems to think there's anything wrong with that (except for holding them in Cuba, which for some reason people seem to think is totally wrong; this is a completely different issue from their treatment there, I hasten to add).
Conclusion. I see no useful concept represented by the title of this article. I suggest people try to think out & explain exactly what concept(s) they want to talk about & then try to find appropriate terminology. Peter Jackson 17:08, 20 November 2008 (UTC)
What is a judge anyway? In England we have magistrates (Justices of the Peace), who usually have no legal qualifications & never seem to be called judges, but exercise what most people would think of as judicial functions: they try people for minor crimes (without a jury) & can sentence them to 6 months. Are they judges? If not, that's extrajudicial detention. If they're judges, note the little-known (probably even to them) fact that all cabinet ministers are ex officio JPs. So if the Home Secretary orders someone detained is that still extrajudicial? Do we start considering which hat she's wearing?
The European Convention on Human Rights says that freedom from arbitrary detention doesn't apply to persons of unsound mind, alcoholics & drug addicts, & vagrants. In this country people are detained under the Mental Health Act by medical order, though there's an appeal to the courts. In Belgium, people can be imprisoned for 6 months by the police for being without visible means of support.
Now a positive suggestion. I think the concept of arbitrary detention is useful. That is, detention not governed by the rule of law, but simply at the whim of the authority. The rule of law, more fully, in the old, politically incorrect days, was the government of laws, not of men. That is, as far as reasonably practical, decisions should be made, not by politicians, bureaucrats or judges, but by reasonably well-defined rules publicly known in advance & equally applicable to everyone, generally observed & on the whole honestly & fairly enforced. This of course is somewhat fuzzy, but many cases are clear enough. Britain & America are on the whole governed by the rule of law, Russia, Zimbabwe & the international community aren't. Peter Jackson 11:12, 21 November 2008 (UTC)
Clarification of a subsidiary point above. Cabinet ministers are JPs ex officio in their capacity as Privy Councillors, not as ministers. Being a PC is a qualification for being a minister, not something they are ex officio as ministers. Peter Jackson 15:54, 21 November 2008 (UTC)
What is a better title for the subjects under discussion? I agree that the detention and treatment issues are separate, although related. The latter, especially, will relate to Military law and just war theory Howard C. Berkowitz 16:37, 24 November 2008 (UTC)
- I'd say the existing title is fine. It is a phrase used in the press, so people might search for it. If we decide on another title, this should survive as a redirect. It does need a link to Military law or Prisoner of war, though. since those are separate issues. Sandy Harris 01:09, 25 November 2008 (UTC)
- That's reasonable enough, Sandy. The introduction needs to make clear, however, that this is an issue involving many governments, many legal and judicial codes (or lack thereof), and many times and places. Nacht und nebel, "Night and fog", was a practice in the Third Reich, while I don't read Spanish, I understand that "Disappeared ones" or something along those lines were common in the "Dirty Wars" of Latin America. In the U.S., there have been cases where a suspected Soviet defector, Anatoliy Golytsin, was held for around three years, in harsh conditions, as part of a very complex spy-counterspy matter with factions pro-Golitsyn and other pro-Yuri Nosenko.
- Topical things are fine, but there are enough issues here that it would be wrong to oversimplify this to Bush and Guantanamo. Howard C. Berkowitz 02:12, 25 November 2008 (UTC)
- I think this title should be a quasi-disambiguation, explaining possible meanings people might imagine the term to have & referring readers to appropriate articles for them.
- As a semi-aside, I sometimes wonder whether more important issues get missed. Over here, the limit for pre-charge detention in terrorism cases is 28 days. The government have twice tried to increase it, first to 90 days, rejected by the House of Commons, then to 42 days, rejected by the House of Lords. there's been an enormous amount of fuss about this, in the midst of which I heard a brief news report that someone who'd just been charged with terrorist offences would have to wait 18 months for trial. Makes me wonder. In Scotland there's a limit of 110 days on pre-trial detention, though there may be exceptions. Peter Jackson 11:28, 25 November 2008 (UTC)
We may be talking about much the same function when you say quasi-disambiguation and I say high-level article with subarticles. "Disambiguation" has a quite specific CZ meaning, so I recommend we avoid the term to avoid creating ambiguity.
Let's assume, following Sandy's suggestion, we retain extrajudicial detention because no one has come up with a better, more general nake. The introductory text reasonably can have words about it covering a wide range of situations in which states or quasi-states (why should hostage taking be excluded?) involuntarily detain individuals in violation of some arguably relevant legal code.
In U.S. terms, formally arresting someone and putting them into a pre-trial process is not extrajudicial. There is a system of "material witness" detention of people not charged with a crime, but that is clearly judicial.
Capturing someone even in an unusual way, but treating them as a prisoner of war and applying the relevant Geneva conventions is not "judicial", but it's sufficiently well recognized in customary international law that it's fairly clearly not extrajudicial detention, but properly links to prisoner of war. The conventions for piracy and slavery fall into this area. More difficult is the question of universal jurisdiction under the International Criminal Court, and various quasi-judicial processes whose legal basis was irregular, ranging from the International Military Tribunal (Nuremberg), [International Military Tribunal (Tokyo)]], the subsequent Nuremberg Military Tribunals, and things like the abduction followed by trial of Adolf Eichmann. The arrest and trial of Pinochet is another gray area that did involve at least some judicial process.
Things get more difficult, although not completely outside the Geneva conventions, when there is question if someone is entitled to POW status. If a reasonably prompt "competent tribunal" is held, as specified by the Geneva Conventions, is held, quite possibly with international observation, and an individual is determined not to have POW rights, the question becomes what do do with him. In some cases, international law does allow execution, or perhaps detention for the period of a somewhat well defined war, but this is an increasingly difficult area. In U.S. law, ex parte Quirin does cover secret arrest and execution of hostile nationals during a clear war; the British Double-Cross system also had judicial aspects. Rasul v. Bush, the Military Commissions Act, and what the George W. Bush Administration has chose to do gets less judicial.
The problems come not even if the taking into custody is secret, but when the detention is indefinite, secret, and unmonitored by neutral parties.
Are those a fair statement of principles before getting into specifics of detention under particular governments and national convention, of what seems to be the focus, "international terrorism"? Do non-terrorist intelligence-related matters, while rare, such as Golitsyn fit here?
I'd really like to move away from indefinite discussion of unhappiness with various issues and drafts, and try to restart a basic article. Whether it's called quasi-disambiguation or something else, however, I'm convinced that leaping straight into the Bush Administration and Guantanamo is neither encyclopedic nor giving the impression of neutrality. Some of the U.S. policies may well change in a few months; look, for example, in the article in process on James Jones, the presumptive new U.S. Assistant to the President for National Security Affairs and his prior personal but public positions about Guantanamo.
Are you willing to write a first, deliberately "quasi-disambiguating" and short first draft of what comes next?
Howard C. Berkowitz 12:45, 25 November 2008 (UTC)
- I'm not in a position myself to list all the possible meanings people may have for the term. This has to be a collaborative effort among all interested parties. My disquisition above covers the literal meaning of the term and the ambiguity of even that. The substance of that should be incorporated, along with the interpretations you've just outlined, and the ideas in the draft at the top of this page, but there may well be others that other people want to bring in. What's the most effective way of inviting a broad range of contributions? Peter Jackson 11:35, 26 November 2008 (UTC)
- The most effective way to bring in the additional material is to write it. Collaborative effort requires more than one person interested in the particular collaboration. So far, Peter, I do not see people indicating that they share your specific concerns and volunteer to write about them.
- As a subject matter Editor, it is quite within my role to suggest, not demand, possible directions for the article. There are, indeed, reasons why an Editor might not personally write the article text, for then, without dispensation, he would not be able to Approve it. In other articles (chemical engineering), where I was the approving editor, the primary author and I were careful to follow protocol: when I raised questions about content, I provided data, within my expertise, on the talk page, but it was his decision on how and what to include.
- I have done something very similar in this case: I have provided a somewhat structured list of issues from which authors might work. Unfortunately, Peter, your mere dissatisfaction with what is here does not compel anyone to write in support of your concerns. You speak of "all interested parties", but I don't yet see other parties interested in writing text. To answer your question, the best way to invite contributions is for you to start contributing content, not complaints. As an Editor, I am not convinced that anyone is going to write to your concerns.
- One of the differences between WP and CZ is that endless talk page discussions are frowned upon here, when they do not lead to production of article text. One of the roles of an Editor is to rule that a particular discussion is going nowhere. Such a ruling may be challenged by other Editors, or brought to the Editorial Council, but is not a matter of expecting others to volunteer to write about concerns they may not share.
- Perhaps a Constable might help clarify the procedural, not content, issues involved here. Howard C. Berkowitz 12:11, 26 November 2008 (UTC)
Here's my shot at an introduction:
Extrajudicial detention means a state locking people up outside the legal system, without laying any charge or bringing them to court. In 21st century discussion, the term most often crops up in relation to actions by the US and allies related to the Afghan conflict and imprisonment at Guantanamo, but the issue is in fact far broader than that.
The term only makes sense in a context that has a legal system that includes some limits on the government's power in the first place. A ruler who can say L'etat, cest moi ("I am the state"), a comment attributed (debatably) to Louis XIV of France, has no such limits. Nor have other dictatorial rulers. Nor does the government in a system that has no independent judiciary, or where even the courts put the Leader, the Party or whatever above the Law.
In the British legal system, the right of habeas corpus ("deliver the body") is one of the basic limits on the power of the crown set out in the Magna Carta of 1215. A writ of habeus corpus is a demand that the authorities produce a prisoner in court. They must then either lay a charge or release the prisoner. Once the charge is laid, the other basic rights come into play. The accused is "innocent until proven guilty", proof must be "beyond reasonable doubt", and the accused has the right to trial by jury. All of these rights exist in various legal systems descended from the British system; in particular all are included in the American Constitution. Similar principles apply in some other legal systems.
- Good start. I'd hesitate to mention Guantanamo, because Guantanamo, while best known, is simply not the only place of detention; there apparently have been "black camps" all over the world. I think you will also find the Palestinians use the term toward the Israelis.
- As far as the second paragraph, where does hostage-taking fit? There can be hostage-taking by states, by very informal bands, but also an intermediate category of quasi-states, such as Hamas, the Somali National Army, Hizbollah, etc.
- We need to be more specific about "other legal systems". Anyone familiar with Civil Law on the topic? What about Israeli security law and regulation? Was Eichmann's apprehension and subsequent trial extrajudicial? To Argentina, probably. To Israel, no.
- International Criminal Court, including cases where the country in question does not agree to ICC jurisdiction, a current situation with Sudan? Should some external group, Eichmann-style, were to capture Sudanese in their own country and take them to the ICC, would that be judicial, extrajudicial, or both?Howard C. Berkowitz 13:23, 26 November 2008 (UTC)
- I may find time to do something substantial. For now, a few comments. the definition given above seems rather vague to me, as well as being different from the literal meaning. Is it the generally accepted usage? If so, it should at least be mentioned that it differs from the literal sense. The references to Magna Carta mght be a bit romantic. In particular, I think proof beyond reasonable doubt is a modern development. About 1700 there seems to have been still no difference in standards of proof between civil & criminal cases. Peter Jackson 14:22, 26 November 2008 (UTC)
- Here's the start of an attempt.
- Extrajudicial detention literally means detention other than by order of a judge. In common usage it is thought of as a state locking people up outside the legal system, without laying any charge or bringing them to court. Even this has some exceptions:
- persons of unsound mind
- alcoholics and drug addicts
- prisoners of war
- All of these can be detained outside the criminal process in some or all jurisdictions subject to the rule of law, but these cases are not usually considered extrajudicial detention...
- Peter Jackson 18:03, 26 November 2008 (UTC)
- I've had a look at some dictionaries, & they seem to give 2 basic meanings, so here's some revised material.
- Extrajudicial detention is used in two basic senses. It literally means detention other than by order of a judge. In the other common usage it is thought of as a state locking people up outside the legal system, without laying any charge or bringing them to court. Both meanings depend on the legal system in question, and are subject to controversy. Here we discuss the application of the term to various types of cases, citing illustrative examples from various legal systems.
- The "normal" procedures for bringing people to trial, whatever that may be at any place and time, tend not to be thought of as extrajudicial, though they can be considered equivalent if they take "too long". Consider first the case of pre-charge detention. In English law, for example, until the 1980s, there was no legal power to detain anyone without charging them. When the powere was introduced, and at every subsequent extension of the period allowed for questioning and other investigations before charge, opponents claimed this was an infringement of civil liberties, a violation of the sacred rights of Englishmen. In terms of the application of our term, it should be noted that these laws allow the police to detain people for a certain period on their own, and then an additional period with authorization from a judge.
- The above is concerned with a common law system, as followed in England and most of the United States. Civil law sytems, as followed in most Western European countries, have nothing exactly corresponding to the common law notion of "charge". There is disagreement as to which civil law procedure most closely corresponds. On one interpretation, some Western European countries allow detention without charge for up to four years.
- The European Convention on Human Rights says that the usual procedures do not apply to persons of unsound mind, alcoholics and drug addicts, and vagrants. Countries that allow committal to mental hospital by medical order alone may be regarded by many people in countries requiring a judicial order as practising extrajudicial detention. Likewise, the Belgian law allowing the police to sentence someone to six months in prison for being without visible means of support would be regarded by most British [& Americans?] as a gross violation of human rights.
- The holding of prisoners of war is not usually authorized by a judge, and so is extrajudicial in the literal sense, but is not usually considered objectionable. However, problems arise in cases where the prisoners do not belong to a properly organized "official" army, but belong, or are alleged to belong, to a semi-organized or unorganized "unofficial" guerrilla or terrorist group. ...
- Peter Jackson 12:11, 27 November 2008 (UTC)
- I disagree fairly strongly. I don't think "extrajudicial" necessarily has anything to do directly with judges. What it means is outside (extra) the legal (judicial) system. To me, the original "Extrajudicial detention is the act of holding captives, by a state, without ever laying formal charges against them." seems both simpler and more accurate than your initial paragraph.
- I also looked at some dictionaries . Random House gives "1. outside of judicial proceedings; beyond the action or authority of a court. 2. beyond, outside, or against the usual procedure of justice; legally unwarranted" I'd say their second sense is the one that applies here. American Heritage "1. Outside of the authority of a court. 2. Outside of the usual judicial proceedings." Sandy Harris 13:23, 27 November 2008 (UTC)
- Sandy, I like your distinction, with the friendly amendment, "Extrajudicial detention is the act of holding captives, by a state or body claiming state-like authority, without ever laying formal charges against them." "Formal" may still need work, as there may need to be coverage of cases where the charges are, appropriately (e.g., ex parte Quirin, Double Cross System) or inappropriately, secret.
- I do urge concentrating on an introduction that definitely does not get into topical examples. It might be followed with a section on relevant law, starting internationally with the Geneva Convention (covers POWs) and ICC Treaty, then moving to legal systems such as Common Law, Civil Law, and hostis humani generis. More ad hoc detention might apply, such as the International military tribunal.
- National and topical examples can follow in additional sections and subsections, principally to identify issues and link to subarticles where the specific example can be discussed. Otherwise, to put too much into this will make it ramble and be hard to maintain. Peter, I don't disagree with the broad concept of a "semi-disambiguation", but this needs far too much context to me a mere disambiguation page, even with finished R-templates. Howard C. Berkowitz 13:51, 27 November 2008 (UTC)
- I should clarify that I ignored the heading of this section. Not all of the material I jotted down above is suitable for the intro.
- As to Sandy's remarks, it seems to me that the AHD definition 1 is pretty much what I've been calling the literal (i.e. etymological) sense. I see no justification for pretending it doesn't exist. If the other meaning is the usual one nowadays, we just need to say so, mentioning the other meaning briefly.
- Some more material that might be included, here or elsewhere:
- "Detention between charge and trial may also be controversial. For example, English law has no fixed limit to the time, but courts may decide in individual cases that it is excessive, and order release, or even cancel the trial. In Scottish law there is a limit of 110 days to pre-trial detention [maybe exceptions; must check], a limit sometimes far exceeded in England, but in turn much more than the limit for pre-trial detention."
- Peter Jackson 14:31, 27 November 2008 (UTC)
- To me, your "literal meaning" is a canard. Extrajudicial detention literally means imprisonment outside (extra) the legal (judicial) system. The main point is that the authorities do not follow the usual legal process. That there is no court order is a consequence of that, basically a minor detail. More important, the authorities generally have no intention of bringing such prisoners to court at all. Nor is appeal to the courts generally possible.
- I am only quarelling with your first paragraph here. I like the rest of what you wrote. Sandy Harris 06:26, 28 November 2008 (UTC)
- Are you saying extrajudicial simply means illegal? Peter Jackson 12:09, 28 November 2008 (UTC)
- No. "extra" means outside. Outside the legal system, without going through the courts. Whether that is illegal depends on many things. What legal system? Are they prisoners of war? If so, they need not be tried, in fact generally cannot be. et cetera. Sandy Harris 14:10, 28 November 2008 (UTC)
- OK, but we have to make clear that the normal legal process depends on place & time. You seem to agree, so this is just a reminder to anyone else. Also, of course, we have to remember that in many countries the courts are organs of the state, so the distinction is meaningless. Peter Jackson 15:45, 28 November 2008 (UTC)
So, trying to synthesize the above, I get:
Extrajudicial detention is the act of holding captives, by a state or body claiming state-like authority, outside (extra) the legal (judicial) system. No arrest warrant or other legal order (such as one to lock up a madman) is issued. No charge is laid, the prisoner is not brought to court, and often there is no channel for the prisoner to appeal to a court. In 21st century discussion, the term most often crops up in relation prisoners taken by the US and allies in the Afghan conflict, but the issue is in fact far broader than that.
The term applies when the captors' actions are directed mainly against the captive; they want to imprison or punish him, or to extract information. Things like hostage-taking or kidnapping are not primarily aimed at the captive; they have other goals. Therefore, even though they involve captives and are sometimes done by states or state-like organisations, they are not considered here.
The term only makes sense in the context of a legal system that includes some limits on the government's power in the first place. A ruler who can say L'etat, cest moi ("I am the state"), a comment attributed (debatably) to Louis XIV of France, has no such limits. Nor have other dictatorial rulers. Nor does the government in a system that has no independent judiciary, or where even the courts put the Leader, the Party or whatever above the Law.
== Habeus Corpus ==
In the British legal system, some basic limits on the power of the crown were set out in the Magna Carta of 1215. Among them were freedom from arbitrary detention and the right to a trial by jury.
A few decades later, the writ (court order) of habeus corpus ("deliver the body") became the mechanism for preventing arbitrary detention; it is still the primary mechanism in the British system and in legal systems descended from it, and is included in the American Constitution. The writ is a demand that the authorities produce a prisoner in court; they must then either lay a charge or release the prisoner. Once the charge is laid, the accused gets whatever other rights and procedural protections the legal system in question offers him. Depending on the legal system, this may be considerably more than the authorities would give him if no court were involved.
The "normal" procedures for bringing people to trial, whatever that may be at any place and time, tend not to be thought of as extrajudicial, though they can be considered equivalent if they take "too long". Consider first the case of pre-charge detention. In English law, for example, until the 1980s, there was no legal power to detain anyone without charging them. When the power was introduced, and at every subsequent extension of the period allowed for questioning and other investigations before charge, opponents claimed this was an infringement of civil liberties, a violation of the sacred rights of Englishmen. In terms of the application of our term, it should be noted that these laws allow the police to detain people for a certain period on their own, and then an additional period with authorization from a judge.
The above is concerned with a common law system, as followed in England and most of the United States. Civil law sytems, as followed in most Western European countries, have nothing exactly corresponding to the common law notion of "charge". There is disagreement as to which civil law procedure most closely corresponds. On one interpretation, some Western European countries allow detention without charge for up to four years.
The European Convention on Human Rights says that the usual procedures do not apply to persons of unsound mind, alcoholics and drug addicts, and vagrants. Countries that allow committal to mental hospital by medical order alone may be regarded by many people in countries requiring a judicial order as practising extrajudicial detention. Likewise, the Belgian law allowing the police to sentence someone to six months in prison for being without visible means of support would be regarded by most British [& Americans?] as a gross violation of human rights.
== Prisoners of War ==
Discussion, with links, to the Geneva Convention, "Lawful combatant" status, etc. In general, POWs cannot be tried by the capturing power, but link to Army_Regulation_190-8_(tribunal) or (better) something more general.
- Howard: could you write this?
== Current controversies ==
Sandy Harris 02:37, 29 November 2008 (UTC)
- I have trouble with excluding hostage-taking, which is specifically addressed in the Hague Conventions with respect to nation-states. There is a very blurry line, as well, between a state holding individuals specifically to deal with their cases, and establishing a general chilling effect that certain forms of opposition may be deemed "enemy of the state". Howard C. Berkowitz 03:21, 29 November 2008 (UTC)
- OK. So delete my second paragraph and add a section == Hostages ==, after == Prisoners of War == ? Sandy Harris 04:29, 29 November 2008 (UTC)
- Sandy's opening wording implies that holding prisoners of war is extrajudicial.
- A bit more about Magna Carta.
- It's English, not British (as is the common law, Scotland having an originally civil law system that's imported a lot of common law ideas).
- Trial by jury, as we understand the term nowadays, is nothing to do with MC. This myth arose because it happened to be introduced in the same year.
- The bit about arbitrary detention is in chapter 39: "nullus liber homo capiatur ... nisi per legale judicium parium suorum sive per legem terre": "no free man shall be taken ... unless by the lawful judgement of his peers or else by the law of the land. Only free man covered.
- Peter Jackson 11:46, 1 December 2008 (UTC)
- This is one reason that I believe the basic approach to this article should be based on customary international laws, which primarily mean the Hague and Geneva Conventions, with perhaps aspects of the International Convention on the Law of the Sea. At least with Geneva, and possibly some aspects of the International Criminal Court treaty, one has to be careful which articles and Protocols (i.e., major updates) have been ratified.
- Getting into regional/cultural systems such as Common Law, Civil Law, relevant court decisions when stare decisis applies, and even state decrees in other systems not quite as democratic, is likely to take the discussion into a twisty and turny maze of special cases.Howard C. Berkowitz 15:19, 1 December 2008 (UTC)
- Doesn't that mean you cover only detention of foreigners? Peter Jackson 15:57, 1 December 2008 (UTC)
- In fact, wouldn't it limit the scope of the article solely to the question of who counts as a prisoner of war? That may indeed be what most readers are interested in, but it seems an odd use of the title. Peter Jackson 15:58, 1 December 2008 (UTC)
- No, it doesn't limit scope of the article. I am perfectly willing to consider less ambiguous titles for the article. I don't agree that it can be said that most readers are interested only in POWs, when a common article can deal with some common principles of "extraordinary rendition", detention of terrorist subjects who are either citizens or citizens of a territory under occupation, Soviet psychiatric abuses, the Latin American "disappeared ones" or victims of the Nazi Nacht und Nebel handling (i.e., attempts to create chilling effect against dissent), and hostage-taking by quasi-national groups. I see little moral, and quite possibly legal, difference, between the detention of a radical Islamist suspect by a Western government, and the kidnapping and detention of a hostage by a radical Islamist group.
- Especially if one looks at some broader documents such as the Universal Declaration of Human Rights, there are some unifying principles. Further, national judiciaries have made some determinations of universal jurisdiction of acts against one's own citizens. One such case is the Filártiga v. Peña-Irala ruling of 1980 "made history by awarding the first criminal damages against a torturer (a Paraguayan police agent) found to be in the United States. The Court of Appeals for the Second Circuit established that, under the 1789 Aliens Tort Claims Act, U.S. courts have jurisdiction over claims for torture brought by aliens against torturers found to be in the United States."
International Criminal Court indictments also include actions against one's citizens, especially if one considers death an especially long-lasting form of detention. Saddam Hussein's trial and execution were complex but do touch on this. The kindler, gentler process of the South African Truth and Reconciliation Commission also used international principles in an indeed ex post facto analysis of actions of the then accepted government against its own citizens. Howard C. Berkowitz 16:06, 1 December 2008 (UTC)
- You don't see much difference between a suspect & a hostage? Especially when the latter seems much more likely to end up dead? But I suppose we shouldn't be discussing that sort of thing here. Peter Jackson 16:46, 1 December 2008 (UTC)
- The "usual suspects" under Nazi occupation were quite likely to wind up dead, and in far larger numbers than hostages — not that the Nazis did not also explicitly take hostages. Bad as Guantanamo might be, it's not Dachau or Bergen-Belsen. Nevertheless, you are correct; the focus on this page should be the scope of the article, rather than what are often semantic nuances of definition. Howard C. Berkowitz 17:01, 1 December 2008 (UTC)
My more nuanced politicomilitary writing, at the moment, is more focused on other topics such a major reorganization and expansion of Vietnam War, and I simply haven't had the cycles to apply to this.
It somewhat bothers me that there seems an overemphasis on legalities, including on legalities (e.g., common law vs. civil law vs. leader-state) that draws attention away from the background this should give on both topical (country-independent) issues in detention, and on both customary international law and the gaps in customary international law. The Magna Carta is far too culturally specific to be a lead item.
It's been long enough that I will have to look to see how much Geneva Convention material I authored at the Other Place, and would consider importing rather than rewriting. My work here on international law has been much more focused on WMD and counterproliferation. Howard C. Berkowitz 17:16, 30 November 2008 (UTC)
Would it be reasonable to make this article mainly a stub, and then have subarticles that deal with more specific cases, as well as a separate fork of subarticles to relevant law? For example, there are a substantial number of articles, some with problems, but that still logically are all aspects of what the George W. Bush Administration formally defines as the war on terror ("Extrajudicial detention in the George W. Bush Administration" is a bit long, even more so if one adds "war on terror", but perhaps someone has a better title.) There could be a set of internal cases principally dealing with the suppression of dissent, be they the Nazi Nacht und Nebel, the disappeared ones during Argentina's "dirty war" (and close parallels in other Latin American countries), torture#political psychiatry in the Soviet Union and China, etc.
On the legal side, things split into customary international law, and then variously either legal systems (e.g., civil vs. common law) and national rules. Under international law, there is a fairly universal core of universal jurisdiction for slavery and piracy, which, for many years, was delegated to naval officers. Things like the International Criminal Court, or universal jurisdiction for torture, are much trickier.Can this article really be more than a "core" with many branches? Is it trying to take on too much? Howard C. Berkowitz 21:24, 7 December 2008 (UTC)
- Dolly M. E. Filartiga and Joel Filartiga, v. Americo Norberto Pena-Irala, 630 F.2d 876 (United States Court of Appeals for the Second Circuit 30 June 198-)
- , XI. The Role of the United States, Argentina: Reluctant Partner. The Argentine Government's Failure to Back Trials of Human Rights Violators, December 2001