A Different Perspective on Hassan v. United Kingdom: A Reply to Frederic Bernard

This guest post was written by Cedric De Koker, Phd Researcher, Institute for International Research on Criminal Policy (IRCP), Ghent University.

On the 16th September 2014, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the landmark case of Hassan v. United Kingdom. The case concerned the deprivation of liberty of a young male during the phase of active hostilities in Iraq and raised issues relating to extraterritoriality, the right to liberty and security (Article 5 ECHR) and the relationship between international humanitarian law (IHL) and Human Rights Law (HRL). In his guest post, Frederic Bernard has aptly described and analysed the facts of the case, the legal questions put before the Court, as well as the decision and points of view of both the majority and the dissenting judges. One issue merits further consideration, however, as it was instrumental in the Court reaching his decision and has turned out to be the most contentious aspect of the judgment: whether or not the UK complied with Art. 5 ECHR and could, absent any derogation, rely on the Third and Fourth Geneva Convention to intern the applicants brother, even though said article explicitly precludes internment and administrative detention where there is no intention to bring criminal charges. In what follows, I will therefore take a closer look at the rationale and arguments underpinning the decision of the Court and the opinion of the four dissenting judges with regard to this issue and provide the readers with an alternate point of view, as it is at this point that I disagree with the analysis of Mr. Bernard. The facts of the case have been extensively described elsewhere and will not be repeated here (a summary can be found here and here)

The majority’s decision vs. the dissenting opinion

The action under Article 5 received considerable attention and was so controversial because it was the very first time that the Court was explicitly requested by a Member State 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’ (par. 99). The UK had submitted that in the phase of active hostilities IHL, as the more specific body of law should take precedence over HRL or that at least, the relevant provisions of the Convention should be interpreted as allowing for a lawful deprivation of liberty under IHRL, without having to derogate.

According to Mr. Lawrence Hill-Cawthrone, who discussed the case of Hassan v. UK in his contribution for EJILTalk!, the Court had basically two possible avenues for resolving the issue. During armed conflict and where extra-territorial jurisdiction exists, it could have required Member States to derogate from their obligations under Art. 5, §1 to allow for the internment of prisoners of war and civilians posing a threat to security, as regulated by GC III and IV. Or, it could have accepted that State Signatories to the Geneva Conventions specifically wanted to regulate the deprivation of liberty during international armed conflict and with the doctrine of consistent interpretation of the ECHR with other norms of international law in mind, recognize the existence of an extra permissible ground for detention alongside the grounds enumerated in Art. 5, §1, subparagraphs (a) to (f). Clearly, in the latter case, the deprivation of liberty would be lawful and there would be no need to derogate when IHL applies and the deprivation of liberty conforms with the norms and standards of GC III & IV.

The majority of judges (thirteen to four) ultimately decided in favor of the latter approach. Relying on Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 and seemingly being influenced by the Amicus Curiae submitted by the Human Rights Centre of the University of Essex, they stated as follows:

by 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 (par. 104).

A three step approach has been used to come to this conclusion. First, the Court looked at State practice –which can be used as a tool for interpretation under the aforementioned article 31, § 3(b) of the Vienna Convention – with regard to the deprivation of liberty during international armed conflict. Here, it found that States have not derogated from Article 5 ECHR pursuant to Article 15 ECHR when engaged in international armed conflicts or when occupying enemy territory. According to the Court, this constant practice reflected an agreement amongst States that when parties to the conflict lawfully rely on GC III & IV to intern individuals and adhere to the safeguards against arbitrariness provided therein, the deprivation of liberty cannot simultaneously violate the right to liberty under the Convention and there would be no need to lodge a derogation.

Second, and in line with Article 31, §3(c) of the Vienna Convention and the case law of the ICJ, the Court then made clear that the Convention does not operate in a legal vacuum, but is part of the larger international legal system in which the different bodies of law serve specific purposes. Mindful of the fact that these different bodies of law can sometimes overlap and it is ‘both desirable and necessary to avoid States being faced with irreconcilable legal obligations and controversial results’ (Amicus Curia, par. 7), the Court held that the Convention should be interpreted in harmony with other rules of international law, including IHL. In this sense, it accepted the UK Government’s argument and consequently, ruled that ‘ the lack of a formal derogation under Article 15 does 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’ (par. 103).

Third, in order to clarify the interplay between the IHL and HRL, the Court adopted a ‘symbiotic approach’, which ‘accommodates’ both bodies of law by applying HRL through the lens of IHL and to a certain extent, blending the rules together. In the specific circumstances of the case, this approach meant that the existence of an extra permissible ground for detention alongside the grounds enumerated in Art. 5, §1, subparagraphs (a) to (f) was to be recognized and that the procedural safeguards enumerated in §2 (right to be informed promptly of the reason of one’s arrest) and 4 (right to review of detention) continued to apply but were to be interpreted with reference to similar safeguards prescribed in GC III & IV. According to the views previously expressed by the Human Rights Centre of the University of Essex in the Amicus Curiae, this was the only possible interpretation and ultimately, the majority agreed.

Four judges dissented and their opinions differed strongly from that of the majority on two accounts. For starters, the four judges heavily criticized the rationale relating to State practice for multiple reasons. In essence, their argument can be summarized as follows: Because States often act in a certain way out of political reasons, rather than legal motives, one should approach State practice with caution and only use it as a supplementary means of interpretation, unless the practice is concordant, consistent and common to all parties (dissenting opinion, par. 13). In this case, so they argued, the majority threw all caution overboard. Because the State practice, amongst other things, did not fulfill these criteria, the arguments derived therefrom were flawed and the majority could not have relied upon them as heavily as they did to reach their conclusion.

Second, while acknowledging that the Convention must be interpreted in harmony with other rules of international law of which it forms part, they have argued that this method of interpretation has its limits and consequently, that ‘there was no room to ‘accommodate’ the powers of internment under IHL within, inherently or alongside Article 5, § 1’ (dissenting opinion, par. 16). The latter provision, after all, was worded exhaustively and had in the past consistently been interpreted narrowly by the Court, allowing for no other grounds for detention than those explicitly listed in subparagraphs (a) to (f). Additionally, they submitted that in deciding otherwise, the majority had effectively deprived Article 15 ECHR of any significance with respect to the deprivation of liberty in times of war. In the end, they therefore concluded that:

on the facts of this case, the powers of internment under the Third and Fourth Geneva Convention, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5, §1 of the Convention. (…) By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the convention’ (dissenting opinion, par. 19)

Early observations

The publication of the judgment of the Grand Chamber was eagerly awaited and certainly turned some heads. It should not come as a surprise than that in several online contributions, some of which have been referred to above, early commentators have already discussed some of the merits and deficiencies of both the decision of the majority and the dissenting opinion. Mr. Frederic Bernard, for his part, clearly sided with the dissenting judges in his guest post, stating that,

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 (…). In the absence of a derogation, the Court should not take upon itself to reconcile the diverging legal ensembles (…) but should confine itself to establishing if the Convention has been violated.

I, however, do not share his opinion for a variety of reasons and am inclined to agree with the majority’s conclusion that 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 lawful deprivation of liberty under GC III & IV. Perhaps the greatest merit of the Court’s judgment is that it explicitly offered its view on the interaction between IHL and HRL, here with regard to the deprivation of liberty during armed conflict, and came up with a nuanced, well-balanced solution to an old and heavily disputed issue.

For starters, it refuted the often heard, but unacceptable argument of the UK that extra-territorial jurisdiction does not exist ‘in the active hostilities phase of an international armed conflict, where the agents of the Contracting State are operating in territory of which they are not the occupying power, and where the conduct of the State will instead be subject to the requirements of international humanitarian law’. Accepting this argument would have come down to effectively displacing the ECHR whenever IHL applies. By rejecting this line of reasoning, the Court reaffirmed its earlier decisions on the topic, aligned its case law with that of the ICJ and as such, made the concurrent application of IHL and HRL possible. Essentially, the Court guaranteed that the ECHR remained relevant in the context of armed conflict.

Yet, by requiring that, when both bodies of law apply, the provisions of the ECHR should be applied through the lens of IHL and to a certain extent, be blended together, the Court prevented that HRL would completely overrule IHL. By doing so, it avoided the risk of coming across as disconnected from reality. After all, the GC III & GC IV were conceived by States specifically to regulate the deprivation of liberty during armed conflict. This body of law, recognisant of the hardships of war, represents a balance between military necessity and humanitarian considerations and for this reason, allows for more permissive grounds of detention than would otherwise be the case under HRL. If the Court had decided that, absent any derogation, States who complied with the standards of GC III & IV and lawfully interned individuals under these conventions, could still violate Article 5 ECHR, this would have resulted in irreconcilable obligations and unwarranted results. It would basically render the standards of IHL obsolete given the propensity of States not to derogate. More important perhaps, it would have left no room to account for military necessary to meet the specific military and security challenges that arise during armed conflict. This in turn could negatively affect overall compliance with HRL and even seriously hamper States in bringing the conflict to an end, as it would require States to live up to the more strict human rights standards which, given the circumstances, would be very onerous to comply with.

In all, I therefore submit that, by adopting the ‘symbiotic approach’, the Court has created a workable framework in which IHL and HRL could be reconciled in a way that takes accounts of the objectives, characteristics and intricacies of both these regimes. Moreover, by not choosing the general application of one body of law over another, but instead opting for an interpretation which took the context into account and accommodated the applicable provisions under consideration, the Court developed a case-to-case approach which looks at the specific circumstances of each case, as well as to the specific rights at issue before determining whether or not a violation took place. Finally, it provided a clear and suitable alternative to the lex specialis-doctrine, which has in the past been used to manage the interplay between IHL and HRL, but was criticized because its use ‘has served to obfuscate the debate rather than provide clarification’ (Amicus Curiae, par. 18). These are, in my opinion, positive developments.

Surely, the majority’s decision has its deficiencies. For one, the dissenting judges were more than correct in pointing out that the majority should not have relied on State practice as heavily as it did. Also, several questions were left unanswered by the Court’s decision, specifically with regard to non-international armed conflicts since it was stated that ‘only in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international law, could Article 5 be interpreted as permitting the exercise of such broad powers’. These deficiencies as currently formulated are in my opinion, however, not as weighty as to necessitate a different conclusion with regard to the case under consideration. The Court was in its right to interpret the ECHR in the light of relevant provisions of IHL and therefore, their main argument stands. As a result, I do not believe that accommodating Article 5 with the provisions of GC III & IV amounted to reconciling the irreconcilable. In the end, to quote the Amicus Curiae,

As regards the interplay between the two regimes, there could be no single applicable rule. Any given situation was likely to require elements of both bodies of law working together, but the balance and interplay would vary. Accordingly, there might be situations, such as the detention of prisoners of war, in which (…) international humanitarian law would carry more weight, and determination of human rights violations regarding issues such as the grounds and review of detention would be based on the relevant rules of international humanitarian law. Even in such contexts, however, human rights law would not be under absolute subjection to international humanitarian law (par.28-29).

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