International Law: LOAC

Diane Webber on the ECHJ Opinion in Hassan

By Benjamin Wittes
Monday, September 29, 2014, 7:58 AM

Diane Webber, a British lawyer who recently did a lengthy study of detention law in a variety of countries, writes in with the following account of the European Court of Human Rights decision earlier this month in Hassan v. United Kingdom (ECHR Application No. 29750/09, Judgment of Grand Chamber, September 16, 2014):

In an important decision this month, the European Court of Human Rights has interpreted how international human rights law should coexist with international humanitarian law (IHL) in a new way that appears to give primacy to certain elements of human rights law. When Contracting Parties to the European Convention on Human Rights arrest and detain suspected combatants or civilians suspected of being a threat to security in a situation of international armed conflict, they should ensure that the arrests and detentions are lawful, meaning within the spirit of the fundamental purpose of the right to liberty enshrined in Article 5 of the Convention---to protect individuals from arbitrariness.

On April 23, 2003 British forces arrested Tarek Hassan, who was found on the roof of the home of his brother (an Al-Quds General), armed with an AK-47 machine gun. Hassan was detained in a British-controlled section of the U.S. operated Camp Bucca in Iraq. The arrest was on the grounds that he was a suspected combatant or a civilian posing a threat to security. Hassan was interrogated by U.K. and U.S. authorities. Within a few days, he was determined to be a non-combatant who did not pose a threat to security and he was ultimately released from Camp Bucca on May 2, 2003. His body, which displayed marks of torture and execution, was found on September 1, 2003 approximately 700 km away from Camp Bucca, in an area not controlled by British forces.

The question before the European Court of Human Rights was whether Hassan’s arrest and detention were arbitrary and unlawful, lacking in procedural safeguards, and whether British authorities had failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.

The U.K. argued that Hassan did not fall under British jurisdiction either because Camp Bucca was under U.S. control rather than under the effective control of British authorities. The Grand Chamber ruled that Hassan was under the authority and control, and thus the jurisdiction, of the U.K. from the moment of his arrest until his release on May 2.

The Court did not find any evidence to suggest either that Hassan had been ill-treated during his detention, or that the British authorities were in any way responsible for his death. Accordingly, the U.K. was not under any obligation pursuant to the Convention to investigate alleged ill-treatment (protected under Article 3) and failure to protect Hassan’s Article 2 right to life.

The significance of the case lies in the face that for the first time in the Court’s history, a Convention Party argued that the right to liberty enshrined in Article 5 did not apply in an active phase of an international armed conflict, where IHL governs in place of applicable ECHR human rights law.

Here, since Hassan was captured and initially detained as a suspected combatant, absent derogation from Article 5 pursuant to Article 15, Article 5 ECHR was either displaced by IHL as lex specialis, or modified so as to incorporate or allow for the capture and detention of actual or suspected combatants in accordance with the Third or Fourth Geneva Conventions, the British government argued. This would mean that there was no breach by the U.K. with respect to the capture and detention of Hassan. Alternatively, assuming Article 5 applied and was not displaced or modified in situations of armed conflict, the British Government submitted that the list in Article 5(1) of permissible purposes of detention had to be interpreted in such a way that it took account of and was compatible with the applicable lex specialis---IHL. It argued that the taking of prisoners of war pursuant to the Third Geneva Convention, and the detention of civilians pursuant to the Fourth Geneva Convention, was a lawful category of detention under Article 5(1).

The Grand Chamber did not accept that the scope of Article 5(1)(c)---the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense or when it is reasonably considered necessary to prevent his committing an offense---extended to situations of security internment. The Court noted that it was not the custom of Contracting States to the ECHR 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.

The majority of the Court ruled that even in situations of international armed conflict, the safeguards under the ECHR continue to apply, albeit interpreted against the background of the provisions of IHL: Because of the co-existence of the safeguards provided by IHL and by the ECHR in time of armed conflict, “the grounds of permitted deprivation of liberty set out in Article 5(1) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions.”

This means that deprivation of liberty pursuant to powers under IHL must necessarily be "lawful" to preclude a violation of Article 5(1): “the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of Article 5(1), which is to protect the individual from arbitrariness.” In addition, the procedural elements of Article 5 have to be interpreted in a manner that takes into account the context and the applicable rules of IHL. On the facts before the Court, the United Kingdom was found not to have violated Article 5---the capture and detention were consistent with the relevant Geneva Convention powers, and were not arbitrary.

A minority partially dissenting opinion commented that the powers of internment under the Third and Fourth Geneva Conventions, relied on by the British Government as a permitted ground for the capture and detention of Hassan, were in direct conflict with Article 5(1) ECHR, and concluded that “the Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention.”