ABSTRACT
This chapter explores the due process of detention as set out in the five human rights treaties and the Geneva Conventions, in the context of preventively detaining persons to forestall a terrorist attack. The right to challenge detention must involve the ability of the court to order the release of a detainee if the detention is unlawful. The United Nations Body of Principles for the protection of all persons under any form of Detention or Imprisonment states that detained persons are entitled to legal representation "as prescribed by law". Article 6 mandates legal representation for everyone charged with a criminal offense. One area of criticism concerns the duration of detention without access to a judicial authority. Some procedural guidance for detention in the non-international armed conflict (NIAC) context is found in the non-binding Copenhagen Process. Many countries have incorporated international human rights law directly into their domestic law, or have implemented specific legislation.
