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7 Interdisc. J. Hum. Rts. L. 1 (2012-2013)

handle is hein.journals/ijhrl7 and id is 1 raw text is: DETAINEE AS EXILE Theorizing the Politico-legal Underpinnings of Executive Detention Aoife Duffy* Emergency laws have a tendency to encroach upon certain indi- vidual liberties and may result in a deterioration of legal stand- ards for some people. Time and again rule by emergency powers manifests a critical disjuncture with democratic ideals and legal principles. To exact sovereign power beyond the social contract requires the development of an elaborate system of control where judicial oversight is perfunctory and meaningless. Today, gov- ernments appropriate the politico-legal narrative of emergency to construct new categories of enemies whose freedom may be seized, and placed beyond normal rule of law or due process pro- tections. The use of executive detention is a habit developed by states preoccupied by national security concerns and largely dis- connected to rule of law principles. However, history is replete with examples of societies cruelly limiting the freedoms of those designated as social pariahs. From antiquity to modern times, the outcast or pariah could be exiled from the political communi- ty, triggering a fate akin to social death. The author contends that the politico-legal powers underlying executive detention are similar to that of exile, and the associated mechanisms in both are the same, i.e. the ability to legitimately name an individual or a group as undesirable, to force the person(s) so named beyond rule of law protections and in so doing, severing the individual or group's connection to oikos (home). Home or dwelling is a place of preserving; arbitrary encroachment into the private sphere through emergency diktats eradicates the signficance of this space which human beings need for sustenance and to rest at peace. Keywords: executive detention, exile, Agamben, Arendt, concen- tration camp, house arrest I. INTRODUCTION he protection of liberty rights has been a central pillar of the human rights movement since its inception in the first half of the twentieth century. Everyone has the right to life, liberty, and security of per- son, according to the Universal Declaration of Human Rights (1948), and this sentiment is echoed in Article 5 of the European Convention on Hu- * Aoife Duffy is a doctoral fellow and PhD candidate at the Irish Centre for Human Rights, National University of Ireland, Galway. Research for this article was carried out while in receipt of the Andrew Grene Conflict Resolution Scholarship (Department of Foreign Affairs/Irish Research Council). I am indebted to Dr. Kathleen Cavanaugh, Dr. Michelle Farrell, John Reynolds, and the Interdisciplinary Journal of Human Rights Law's anonymous reviewers for reading and giving feedback on earlier drafts of this work. The author accepts full responsibility for all remaining errors.

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