18 September 2015
Does the current jurisprudence on Article 1 of the ECHR create potential human rights problems in the Syrian conflict?
by David Scott
Reports of two British citizens killed by RAF drone strikes in Syria last week have thrown up a whole host of ethical and legal questions. Former Attorney General Dominic Grieve has already suggested the decision to launch the attack could be “legally reviewed or challenged”, while Defence Secretary Michael Fallon has made clear that the UK would not hesitate to launch such attacks in the future.
This post assesses the (European) human rights dimension of these targeted drone strikes, particularly in the wake of Al-Saadoon & Ors v Secretary of State for Defence  EWHC 715 (Admin). I must express gratitude to Dr Marko Milanovic, whose lectures at the Helsinki Summer Seminar and excellent posts on EJIL: Talk! greatly informed this post. Any mistakes are, of course, my own.
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16 September 2014
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.
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