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Hans-Joerg Albrecht
BvR 518/02 – through which data mining after 9/11 was declared to violate
the constitution).
Detention and internment
Then, powers of physical control through detention on the one hand and
preventive internment (administrative detention) on the other hand have
been the consequence of new anti-terrorist legislation. These changes are
regularly affecting immigration laws. In particular in Great Britain and in
the United States, new powers of detaining immigrants and foreign nationals
on the basis of administrative law have been introduced with the
consequence that individuals suspected of terrorist activities and who at the
same time may not be deported, may be detained indefinitely. However,
recently an English court has concluded that English terrorism legislation
insofar infringes on basic rights as foreign nationals and nationals are
treated differently which according to the view of the court violates the
principle of equal treatment. The Prevention of Terrorism Act 2006 has
repealed detention powers and replaced them by control orders that allow
for various restrictions on freedom of movement and other liberties (such
control orders have been also introduced in Australia, see Anti-Terrorism
Act 2005). In this context, we may note that new forms of keeping suspects
incommunicado and covert investigative methods have been introduced.
Amendments range from the power to establish a situation of
incommunicado for detainees as practiced in the United States for foreign
nationals suspected of terrorist acts or treated as enemy combatants
(available as a short term measure in case of terrorism and with other
restrictions also in other countries) to the extension of the period of time
which is allowed to keep those affected by covert operations uninformed. In
the United States, furthermore, the category of unlawful combatant has been
created which is established between the status of the prisoner of war and
that of a criminal suspect. The unlawful combatant poses manifold problems
on the one hand, but on the other hand points also to the need to create a
third way besides Geneva conventions and ordinary criminal law. The
system of International Humanitarian Law as expressed in the 1949 Geneva
conventions and the 1977 additional protocols does not qualify as a legal
framework for “the war on terrorism” nor for the new types of small wars
that have emerged over the last decades. It would mean to overstretch the
concept of “armed conflicts” if situations such as violence in Afghanistan
under the regime of the Taliban, in Somalia, in the Congo and in many other
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