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Home (/) / Hassan v. United Kingdom: A New Approach to Security Detention in Armed Conict?

Hassan v. United Kingdom: A New Approach to Security Detention in Armed

Conict?

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Volume:19 Issue:7
By:Diane Webber
Date:April 02, 2015

On September 16, 2014, in Hassan v. United Kingdom,[1] the Grand Chamber of the European Court of Human Rights (ECHR) interpreted how international human rights law
(IHRL) should coexist with international humanitarian law (IHL) in a way that appears to give primacy to certain elements of human rights law. This Insight analyzes that
judgment and explains how the requirements for states that detain in situations of armed conict may dier depending on whether their human rights obligations derive from
the European Convention on Human Rights (European Convention) or the International Covenant on Civil and Political Rights (ICCPR). This Insight oers the conclusion that
the European Convention imposes more stringent obligations on its Parties.

The Facts

British forces arrested Tarek Hassan, an Iraqi national, 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 arrested and detained in a British-controlled section of the U.S. operated Camp Bucca in Iraq, on the grounds that he was a suspected combatant or a civilian posing a
threat to security. Hassan was interrogated by both U.K. and U.S. authorities. Following a swift determination by both authorities that he was a non-combatant who did not
pose a threat to security, he was released from Camp Bucca. His body, which displayed marks of torture and execution, was found months later many miles away from Camp
Bucca, in an area not controlled by British forces.

The complaint under consideration by the ECHR was whether British authorities had failed to carry out an investigation into the circumstances of Hassans detention, ill-
treatment, and death, and whether Hassans arrest and detention were arbitrary and unlawful, and lacking in procedural safeguards. The ECHR did not nd 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 United Kingdom
had not been obliged to investigate the alleged ill-treatment (protected under Article 3 of the European Convention) nor had they failed to protect Hassans Article 2 right to
life.[2]

Jurisdiction

The United Kingdom argued that Hassan did not fall under British jurisdiction because Camp Bucca was under U.S. control rather than under the eective control of British
authorities. The Grand Chamber ruled that Hassan was under the authority and control, and thus the jurisdiction, of the United Kingdom from the moment of his arrest until
his release.[3]

The Grand Chamber has been consistent in its willingness to ascribe extraterritorial jurisdiction in situations involving overseas military operations. The most recent case in
which the ECHR did so was Jaloud v. The Netherlands. In that case, Dutch forces had been manning a checkpoint in an area under British control in Iraq. Jaloud was shot
and killed as his car passed through. The Grand Chamber found that the Netherlands assumed responsibility for providing security in that area, to the exclusion of other
participating States, and retained full command over its contingent there[4] and exercised its jurisdiction within the limits of its . . . mission and for the purpose of asserting
authority and control over persons passing through the checkpoint.[5] In both the Hassan and Jaloud cases, the Grand Chamber conrmed that authority and control of the
relevant military conferred extraterritorial jurisdiction on the state parties sucient to bring activities overseas under the scrutiny of the ECHR.
Consider the hypothetical position if the facts similar to those in the Hassan case had related to detention by the United States. If such a case could have been brought
against the United States under the ICCPR, rather than against the United Kingdom under the European Convention, the jurisdiction question would have been far more
problematic. On October 28, 2014, the Human Rights Committee (HRC) adopted General Comment No. 35 on Article 9 ICCPR, on liberty and security of the person. They
comment: Given that arrest and detention bring a person within a States eective control, States parties must not arbitrarily or unlawfully arrest or detain individuals outside
their territory.[6] Although the United States has made some movement towards accepting the notion of extraterritorial jurisdiction in connection with the Convention Against
Torture,[7] the U.S. governments stance on jurisdiction under the ICCPRthat it does not apply extraterritoriallyremains unchanged.[8] Thus, the United States would have
maintained that the ICCPR does not govern U.S. actions abroad and that IHL, rather than IHRL, applies to detentions carried out overseas.

Detention

For the rst time in the Courts history, a convention party, the United Kingdom, argued that the right to liberty enshrined in Article 5 did not apply in an active phase of an
international armed conict when IHL governs in place of applicable ECHR human rights law. Because Hassan was captured and initially detained as a suspected combatant,
absent derogation from Article 5 pursuant to Article 15, the United Kingdom argued that Article5 ECHR was either displaced by IHL as lex specialis, or modied so as to
incorporate or allow for the capture and detention of actual or suspected combatants in accordance with the Third and/or Fourth Geneva Conventions. This would mean that
there was no breach by the United Kingdom with respect to the capture and detention of Hassan. Alternatively, if Article 5 applied and was not displaced or modied in
situations of armed conict, 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 specialisIHL. They 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 eected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an oence or when it is reasonably considered necessary to prevent his committing an oenceextended to
situations of security internment in an international armed conict.[9] 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 conicts.[10]

The majority of the Court ruled that even in situations of international armed conict, 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 conict, 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.[11]

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.[12] 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.[13]
On the facts before the Court, the United Kingdom was found not to have violated Article 5the capture and detention were consistent with the relevant Geneva Convention
powers, and were not arbitrary.

Where contracting parties arrest and detain suspected combatants or civilians suspected of being a threat to security in a situation of international armed conict, 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 European Convention
to protect individuals from arbitrariness.

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 conict with Article 5(1) ECHRand 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.[14]

Detention under the ICCPR

The majority judgment of the Grand Chamber sets out the law that applies to states that are parties to the European Convention, but what of states that are parties to the
ICCPR and carry out security detention in the course of an armed conict? General Comment No. 35 purports to address security detention in paragraphs 15 and 64,[15] but
does not clarify the legal position to any helpful extent.

In paragraph 15, the HRC considers that security detention that is not carried out in contemplation of prosecution has a severe risk of being arbitrary, but enumerates various
conditions for the use of such detention in undened exceptional circumstances. In paragraph 64, the HRC restates that in situations of armed conict, while the rules of
international humanitarian law may be relevant for the interpretation of article 9, both spheres of law are complementary, not mutually exclusive. Security detention authorized
and regulated by and complying with international humanitarian law in principle is not arbitrary. This seems to suggest that security detention, both in terms of internment of
prisoners of war and internment of protected persons as a security measure, is automatically deemed not arbitrary, provided that it complies with IHL in principle.

No distinction is drawn between security detention in international and non-internal armed conicts in paragraph 64, but in paragraph 66, the HRC notes that in international
armed conict substantive and procedural rules of international humanitarian law remain applicable and limit the ability to derogate, thereby helping to mitigate the risk of
arbitrary detention. One commentator has queried whether the failure to mention non-international armed conicts in paragraph 66 implies that only IHRL applies in such
conicts.[16]

I suggest that a subtle dierence can be discerned between the approach of the ECHR and HRC. The ECHR requires armed conict security detention to comply with
Section 5 European Convention, whereas the HRC assumes in principle that armed conict security detention complies with Section 9 ICCPR. So parties to the European
Convention are required to be satised that armed conict detention is not arbitrary, whereas parties to the ICCPR are not required to take that extra step. States that are
parties to both Conventions might be advised to ensure that security detentions in armed conict comply with the more stringent requirements enumerated by the ECHR.

About the Author: Diane Webber, an ASIL member, earned her S.J.D. at Georgetown University Law Center.

[1] Hassan v. the United Kingdom, Judgment of Grand Chamber, Eur. Ct. H.R. (2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?1=001-146501
(http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?1=001-146501).

[2] Id. 63.

[3] Id. 80.

[4] Jaloud v. The Netherlands, Judgment of Grand Chamber, Eur. Ct. H.R. (2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-148367#_Toc404269546
(http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-148367#_Toc404269546).

[5] Id. 152.

[6] CCPR General Comment No. 35, Article 9 Liberty and Security of Persons, U.N. Doc. CCPR/C/GC/35, 63 (Oct. 28, 2014) [hereinafter CCPR General Comment No. 35].

[7] Bernadette Meehan, NSC Spokesperson, Statement on the U.S. Presentation to the Committee Against Torture (Nov. 12, 2014), available at
https://www.whitehouse.gov/the-press-oce/2014/11/12/statement-nsc-spokesperson-bernadette-meehan-us-presentation-comm... (https://www.whitehouse.gov/the-
press-oce/2014/11/12/statement-nsc-spokesperson-bernadette-meehan-us-presentation-committee-a).

[8] Charlie Savage, U.S., Rebung U.N., Maintains Stance That Rights Treaty Does Not Apply Abroad, N.Y. TIMES, Mar. 13, 2014, available at
http://mobile.nytimes.com/2014/03/14/world/us-arms-stance-that-rights-treaty-doesnt-apply-abroad.html?_r=2&referrer (http://mobile.nytimes.com/2014/03/14/world/us-
arms-stance-that-rights-treaty-doesnt-apply-abroad.html?_r=2&referrer)=; Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the United
States of America, U.N. Doc. CCPR/C/USA/CO/4, 4 (Apr. 23, 2014).

[9] Hassan v. United Kingdom, supra note 1 at 97.

[10] Id. 101.

[11] Id. 104.

[12] Id. 105.

[13] Id. 106.

[14] Id. Partly Dissenting Opinion 19.

[15] CCPR General Comment No. 35, supra note 6.

[16] Shaheed Fatima, UN HRCs General Comment on the Right to Liberty and Security: A Missed Opportunity?(Part Two), JUST SECURITY (Nov. 20, 2014),
http://justsecurity.org/17596/human-rights-committees-general-comment-no-35-security-detention/ (http://justsecurity.org/17596/human-rights-committees-general-
comment-no-35-security-detention/). She also draws attention to several aspects of concern and lack of clarity in paragraphs 15 and 64 (see also Shaheed Fatima, UN HRCs
General Comment on the Right to Liberty and Security: A Missed Opportunity? JUST SECURITY (Nov. 19, 2014), http://justsecurity.org/17587/uns-comment-liberty-security/
(http://justsecurity.org/17587/uns-comment-liberty-security/)) and comments that General Comment 35 has missed an opportunity to provide authoritative guidance on
security detention in situations of armed conict.

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