Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK

This guest blog post was written by Frederic Bernard, Lecturer at the University of Geneva, Global Studies Institute, and Attorney-at-law admitted to the Geneva Bar.

The fragmentation of international law has been for some time the subject of in-depth academic and expert studies, as exemplified, for instance, by the report dedicated to this topic on 13 April 2006 by the Study Group of the International Law Commission. The relationship between international human rights law and international humanitarian law, in particular, has attracted much attention. In this context, the Hassan case is noteworthy, because, for the first time, the Strasbourg Court’s Grand Chamber had to address this relationship directly, in order to assess whether the applicant’s brother’s rights had been breached due to his detention in Iraq by British forces during the 2003 war:

This is the first case in which a respondent State has 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.

For the purpose of this post, the relevant facts of the case can be summarized as follows. In April 2003, during the active hostilities in Iraq, a British army unit went to the applicant’s house to find only his brother, Mr. Tarek Hassan, posted on the roof with an AK-47 machine gun. The British troops arrested him, on the suspicion that he may be a suspected combatant or a civilian posing a threat to security. They took him to Camp Bucca, a UK-US run detention facility located a few kilometers away, where he was questioned. It was soon established that he was a civilian who did not pose a threat to security and he was cleared for release, which took place one week later. Mr. Tarek Hassan’s brother (the applicant died four months after his release) contended that this detention violated Article 5 ECHR.

Before addressing the core question submitted by the applicant and the government, the Court had to determine whether the applicant’s brother was, within the meaning of Article 1 ECHR, “within the jurisdiction” of the United Kingdom, an affirmation strongly objected to by the British government.

To answer this question, the Court began by reminding that State jurisdiction was “primarily territorial”, but then referred to the two (main) instances in which it had previously held that a Contracting State may exercise jurisdiction outside of its territory, as summarized in 2011 in Al-Skeini and others v. the United Kingdom. The first one is when state agents exercise physical power and control over a person, such as was the case over Mr. Abdullah Öcalan after he was handed over to Turkish officials by Kenyan authorities (see Öcalan v. Turkey). In that hypothesis, the Court stated that only the specific rights involved in the situation must be guaranteed:

It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored.

The second instance is when a State exercises effective control over an area, either directly or through a subordinate local administration. In such a situation, the full rights of the Convention and its Protocols apply:

The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights.

The Court also noted that, despite the fact that the Convention did not purport to require Contracting States to impose Convention standards on other States (see on this question the recent post on this blog devoted to Trabelsi v. Belgium), its case-law had never limited the jurisdiction of an occupying State to the “Convention legal space”.

In the case of Mr Hassan, evidence suggested that the United Kingdom was not in effective control of the concerned area during the relevant period. However, the Court held that it did not need to resolve that point, since it unanimously considered that jurisdiction was already established by the fact that Mr Hassan was within the physical power and control of British troops from the moment of his capture until his release.

The attention of the Court then shifted to ascertaining whether Mr Hassan’s detention had breached Article 5, beginning with the examination of the fact that, in the particular case, the United Kingdom had not derogated from the Convention within the meaning of Article 15. According to the UK government, however, the lack of a formal derogation did not prevent the Court from taking into account international humanitarian law when interpreting and applying Article 5 in the context of an armed conflict.

In order to assess this argument, the Court resorted to Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969. It noted that State practice was not to derogate from obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts (see also Bankovic and others v. Belgium), an observation echoed by State practice under Articles 4 and 9 ICCPR.

The Court then went on to say that the Convention had to be interpreted in harmony with other rules of international law of which it forms part and proceeded to quote the International Court of Justice in its The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion (as quoted by the ICJ in its Armed Activities on the Territory of the Congo):

The protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.

Consequently, the Court held that, while, in peacetime, grounds of permissible detention enumerated in Article 5 § 1 ECHR do not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see, for instance, Al-Jedda v. the United Kingdom),

[b]y reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision 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.

Additionally, the procedural safeguards of Article 5 §§ 2 (right to be informed promptly of the reasons of one’s arrest) and 4 (right to take proceedings by which the lawfulness of one’s detention is decided) continue to apply, albeit in a manner that also takes into account the applicable rules of international humanitarian law.

Applying this rationale to the facts of the case, the Court found that Mr. Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions and concluded, by thirteen votes to four, that there had been no violation of Article 5 §§ 1, 2, 3 or 4.

Judge Robert Spano wrote a strong opinion, dissenting on the merits of the complaint, which was joined by Judges Nicolaou, Bianku and Kalaydjieva. He argued that, although the Convention must be interpreted in harmony with other rules of international law, there are limits to this method, in particular when the text of the Convention is clear. Accordingly, since Article 5 exhaustively enumerates permitted grounds of detention, it does not lend itself to an “accommodation” with the powers of internment under international humanitarian law. In this situation, such a possibility derives exclusively from Article 15. Therefore, because the UK government had not derogated, Article 5 § 1 had been breached.

Overall, I believe that the Court was right in holding that human rights law still applies in the context of armed conflicts and thus attempting to interpret the Convention in harmony with international humanitarian law. However, I am inclined to think, along with Judge Spano, that it went too far in that direction. If a human rights provision is open-ended, for instance because it makes use of an indeterminate concept, there is no obstacle at defining this concept, in the context of an armed conflict, by incorporating the corresponding rules of international humanitarian law. This is actually what the ICJ did in its advisory opinion on The Legality of the Threat or Use of Nuclear Weapons:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.

However, when such an accommodation is textually excluded – as is the case with Article 5 – the only way for States to adjust the level of protection offered by the Convention to the requirements of war or public emergency is to follow the derogation procedure of Article 15, as the Court previously judged in the Northern Ireland context (compare Brogan and others v. the United Kingdom and Brannigan and McBride v. the United Kingdom. In the absence of a derogation, the Court should not take upon itself to reconcile the diverging legal ensembles, or, to quote Judge Spano, to “reconcile the irreconcilable”, but should confine itself to establishing if the Convention has been violated.