Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

16 September 2014 by Rosalind English

Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point.

The following summary is based on the Strasbourg Court’s press release.

Background facts and law

The applicant, Khadim Resaan Hassan, is an Iraqi national who now lives in Syria. Prior to the invasion of Iraq in March 2003 by a coalition of armed forces led by the United States of America, Mr Hassan was a general manager in the national secretariat of the Ba’ath Party, at the time the governing party under the leadership of Saddam Hussein. Mr Hassan was also a General in El Quds Army, the private army of the Ba’ath Party. He lived in Um Qasr, a port city in the region of Basrah, south-eastern Iraq. The case concerned the capture of Mr Hassan’s brother, Tarek, by British armed forces and his detention at Camp Bucca in Iraq (close to Um Qasr).  In April 2003, after occupying Basrah, the British army started arresting high-ranking members of the Ba’ath Party. According to Mr Hassan, he went into hiding at this time, leaving his brother Tarek behind to protect the family home. He claims that in April 2003, the British army came to his home in the early hours of the morning and took Tarek away.

The UK Government accepted that British forces arrested Tarek, claiming that he had been found armed with an AK-47 machine gun and on the roof of his brother’s house, where other weapons and documents of a military intelligence value were retrieved and that he was therefore detained as a suspected prisoner of war, combatant or civilian posing a threat to security, in accordance with the Third Geneva Convention, until his status could be determined. It was the UK Government’s argument that, in the context of an international armed conflict, the provisions of the European Convention on Human Rights either should not apply at all or should be applied to take account of law of armed conflict, including the Geneva Conventions of 12 August 1949.

The Government and Mr Hassan both accepted that Tarek was taken by British forces to Camp Bucca, a detention facility operated by United States forces. Although the British forces exercised some control over inmates that had been arrested by the UK military, the extent of this control and its legal consequences were disputed by the parties. The UK Government, providing records of interviews with Tarek at Camp Bucca and screen shots of entries relating to him on a military database, state that, following interrogation by both US and UK authorities, Tarek was established to be a noncombatant who did not pose a threat to security and that he was released on or around 12 May 2003. According to Mr Hassan, Tarek’s body was discovered with bullet wounds some 700 kilometres away from Um Qasr near a town north of Baghdad in early September 2003. The UK Government submitted that there was no independent evidence of the cause of Tarek’s death, emphasising that he was found in an area that had never been controlled by British forces.

In 2007 Mr Hassan brought proceedings in the British administrative court seeking a declaration that there had been a breach of his human rights under the European Convention on Human Rights, compensation and an order requiring the government to carry out an inquiry into the death of his brother. However, the case was dismissed after the court found that Camp Bucca was a US rather than a UK military establishment, and that the UK therefore did not have the relevant jurisdiction.

Mr Hassan then lodged an application with the Strasbourg Court, alleging that his brother had been arrested and detained by British forces in Iraq and had subsequently been found dead in unexplained circumstances. He complained under Article 5 of the Convention that the arrest and detention had been arbitrary and unlawful and lacking in procedural safeguards. He also complained under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment) and  5 that the British authorities had failed to carry out an investigation into the circumstances of his brother’s detention, ill-treatment and death.

The Court’s decision

Article 2 and Article 3 (alleged failure to investigate Tarek Hassan’s detention, ill-treatment and death)

The Court found that there was no evidence to suggest that Tarek Hassan had been ill-treated while in detention or that the UK authorities had in any way been responsible for his death, which had occurred some four months after his release from Camp Bucca in a distant part of the country not controlled by the British forces. There was therefore no obligation on the UK authorities to investigate such allegations and the complaints under Articles 2 and 3 were declared inadmissible for lack of evidence.

Article 5 (Tarek Hassan’s capture and detention)

The Court was not persuaded by the Government’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. Such a conclusion would have been inconsistent with the Court’s previous case-law (Al-Skeini v. United Kingdom 07.07.2011 (application no. 55721/07))  and with the case-law of the International Court of Justice.

Nor did the Court accept the Government’s other argument for excluding jurisdiction in so far as the period after Tarek Hassan had entered Camp Bucca was concerned as it involved a transfer of custody from the UK to the US. Having regard to the arrangements operating at Camp Bucca, the Court was of the view that the UK had retained authority and control over all aspects of the applicant’s complaints under Article 5.  It was clear from the circumstances that Tarek Hassan, when taken to the civilian holding area for release, had remained in the custody of armed military personnel and under the authority and control of the UK until the moment he had been let off the bus that took him from the Camp. In conclusion, therefore, Tarek Hassan had been within the jurisdiction of the UK between the moment of his capture by the British troops, on 23 April 2003, until his release from the bus that had taken him from Camp Bucca under military escort to the drop-off point, most probably Um Qasr on 2 May 2003.

Was Tarek Hassan’s capture and subsequent detention arbitrary?

The text of Article 5 includes a list of situations in which detention is permissible under the Convention. It does not expressly include the lawful detention of a person pursuant to certain powers under international humanitarian law during an international armed conflict, for example, the internment of a prisoner of war.  However, the starting point for the Court’s examination was its constant practice of interpreting the European Convention on Human Rights in the light of the rules set out in the 1969 Vienna Convention on the Law of Treaties. According to the Vienna Convention, when interpreting a treaty such as the European Convention, it was necessary to take into account any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation and also any relevant rules of international law applicable in the relations between the parties. In this respect, the Court noted that it was not the practice of the Contracting States to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. Moreover, the principle that the Convention had to be interpreted in harmony with the rules of international law, of which it formed part, applied equally to the rules of international humanitarian law, such as those set out in the four Geneva Conventions of 1949. The Geneva Conventions, intended to mitigate the horrors of war, had been drafted in parallel to the European Convention on Human Rights and enjoyed universal ratification. The Court observed that it had to endeavour to interpret and apply the Convention in a manner which was consistent with the framework under international law delineated by the International Court of Justice. In the light of the above considerations, the Court accepted the Government’s argument that the lack of a formal derogation under Article 15 did not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case.

The Court was at pains to stress that it could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security were accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers. As with the grounds of permitted detention set out under Article 5, deprivation of liberty pursuant to powers under international humanitarian law had to be “lawful” to preclude a violation of Article 5(1). That meant that detention had to comply with the rules of international humanitarian law, and most importantly, that it should be in keeping with the fundamental purpose of Article 5, which was to protect the individual from arbitrary detention.

The Court considered that the UK authorities had had reason to believe that Tarek Hassan, found by British troops armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved, could be either a person who should be detained as a prisoner of war or whose internment had been necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions. Almost immediately following his admission to Camp Bucca, Tarek Hassan had been subject to a screening process in the form of two interviews by US and UK military intelligence officers, which had led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security. Lastly, the Court also found that it was probable that Tarek Hassan had been released in or near Umm Qasr on 2 May 2003, given in particular the computer entries concerning Tarek Hassan’s release, Um Qasr’s proximity to Camp Bucca, the town’s mention in the annex of the military order relating to the release of detainees from the Camp and the UK policy of releasing detainees following the end of hostilities. Moreover, it was not surprising that no eye witness able to remember Tarek Hassan’s release had been traced, taking into account the time that had elapsed before the applicant had lodged his claim and the large number of UK detainees that had been captured, processed and released from Camp Bucca around the end of April and beginning of May 2003 Tarek Hassan’s capture and detention had therefore been consistent with the powers available to the UK under the Third and Fourth Geneva Conventions, and had not been arbitrary.

In a separate opinion Judge Spano expressed a partly dissenting opinion, joined by Judges Nicolaou, Bianku and Kalaydjieva.  Their objections to the majority’s conclusion on Article 5 is summarised by Judge Spano as follows:

The (Human Rights) Convention applies equally in both peacetime and wartime. That is the whole point of the mechanism of derogation provided by Article 15 of the Convention. There would have been no reason to include this structural feature if, when war rages, the Convention’s fundamental guarantees automa­tically became silent or were displaced in substance, by granting the Member States additional and unwritten grounds for limiting funda­mental rights based solely on other applicable norms of international law. Nothing in the wording of that provision, when taking its purpose into account, excludes its application when the Member States engage in armed conflict, either within the Conven­tion’s legal space or on the territory of a State not Party to the Con­vention. (para 8)

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