Human Rights Challenges in Preventive Detention Laws

Abstract

 Preventive detention, the executive practice of depriving individuals of liberty in anticipation of future harm rather than as punishment for a proven past offence, occupies one of the most contested spaces in contemporary human rights discourse. Although international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and regional conventions permit narrowly circumscribed deprivations of liberty, preventive detention regimes applied in counter-terrorism, immigration control, public-order, and forensic-psychiatric contexts routinely test the boundaries of legality, necessity, and proportionality. This paper presents a conceptual and doctrinal analysis of the human rights challenges generated by preventive detention laws across national and international legal systems. Drawing on a thematic review of scholarship spanning international human rights law, comparative constitutional law, criminology, and forensic psychiatry, the paper identifies four recurring tension points: the adequacy of judicial oversight, the indeterminacy of "dangerousness" as a legal and clinical criterion, the disproportionate application of preventive powers against political dissidents and marginalised populations, and the fragmented character of international enforcement mechanisms. The review finds that although a substantial body of literature critiques individual detention regimes, comparative and interdisciplinary synthesis remains limited, and existing scholarship rarely translates doctrinal critique into an operational safeguard framework. Addressing this gap, the paper proposes a conceptual framework of graduated safeguards, comprising periodic independent review, evidentiary thresholds for dangerousness determinations, statutory sunset clauses, and enforceable compensation mechanisms, that can be adapted across jurisdictional contexts. The paper does not report new empirical data; rather, it synthesises existing evidence to advance a structured basis for future comparative and empirical research on reforming preventive detention practice.