In ruling that the British Government cannot detain foreign terror suspects without trial, judges have imposed one of the most important curbs yet on sweeping security laws enacted since September 11, 2001, say legal experts.
But this year's judgments in Britain and the United States do not yet mean the pendulum has swung back decisively in favour of civil liberties, and this week's decision carries moral force rather than binding legal precedent for other countries.
"It won't set a concrete legal precedent but it will send a very strong moral message ... It will be seen as a watershed," said Iain Byrne of Interights, a London-based law group for protection of human rights.
Gerald Staberock, legal adviser at the International Commission of Jurists in Geneva, said the ruling would deter other countries contemplating similar laws. "For those countries, this sets a very clear demarcation line and sends a clear message. Indefinite administrative detention is not acceptable under international law."
The British Government argued it needed to lock up "suspected international terrorists" indefinitely if they could not be deported because of the risk of torture in their own countries. Detainees were free to leave Britain "voluntarily" at any time.
Staberock said a key aspect of the lords' ruling was that the law was discriminatory because it affected only foreigners.
He said this could strengthen the legal arguments of foreign nationals elsewhere facing not only preventive detention but other forms of discrimination, such as racial profiling measures justified in the name of national security.
Though other Western countries have not gone as far as Britain in sanctioning detention without trial, many face the same dilemma with foreign militant suspects.
German Interior Minister Otto Schily stirred controversy in April when he said that people who presented a "massive danger" to the country should perhaps be "taken into custody for a while" if they could not be expelled.
Among non-Western nations engaged in the war on terror, Singapore and Malaysia both authorise detention without trial.
To enact the powers, Britain had to declare a national emergency, enabling it to opt out of parts of the European Convention on Human Rights.
Byrne said this week's decision would bring London back into line with its European partners and distance it from Washington. "We were largely out of step with other Western democracies apart from the United States."
The ruling follows a US Supreme Court decision in June enabling nearly 600 foreign terror suspects at the US military base in Guantanamo Bay, Cuba, to challenge their confinement through the US courts.
But lawyers and human rights advocates said it was premature to say the decisions represented a turning of the tide.
"My only fear is that if we have a major terrorist attack within the UK or the US, that will maybe act as a catalyst again for more draconian measures and maybe the courts will go silent again," Byrne said.
- REUTERS
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