Legal analysis of the now much maligned “war on terror” has been a growth industry since the events of September 11, 2001. Despite this, how best to respond to and regulate terrorism remains a contested debate intellectually and practically. This article dives into that empirical gap by providing unique data on the operation of detention, arrest, and trial regimes created to counter and manage terrorism in the United Kingdom.
By Dvir Saar & Ben Wahlhaus
Since the beginning of the 21st century, democratic states have increasingly been forced to confront the threat of terrorism on multiple fronts: at home, at the borders, and abroad. One tool that states have employed to protect the population is preventive detention. While highly effective in countering national security threats, significant steps need to be taken to avoid the risk of unjustified detention.
In this article, Saar and Wahlhaus aim to contribute to the ongoing deliberation on this issue by presenting the Israeli experience regarding preventive detention against the backdrop of international law, experience acquired while contending with a wide range of national security threats over several decades.
The authors explore the three different Israeli legal frameworks that regulate preventive detention in Israel, by describing and analyzing the different legislation and conducting a comprehensive survey of the case law (including previously unpublished cases). A comparative analysis of the three frameworks concludes the article.
Lessons from the diverse Israeli experience may serve to inform other states that are attempting to strike the proper balance between national security and avoiding the risk of unjustified detention, as well as inform contemporary international initiatives concerning detention.
Preventive Detention for National Security Purposes in Israel
At JNSLP’s Feb. 11, 2015 symposium on “Trials and Terrorism: The Implications of Trying National Security Cases in Article III Courts,” an expert panel was convened to discuss trends in sentencing considerations in Article III terrorism prosecutions, and what the implications for these cases portend for american foreign policy. The panel consisted of a judge, a government official and former prosecutor, academics, and sentencing experts.