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)

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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.

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