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

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 conflict may differ 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 offers 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 Hassan’s detention, ill-treatment, and death, and whether Hassan’s arrest and detention were arbitrary and unlawful, and lacking in procedural safeguards. The ECHR 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 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 Hassan’s 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 effective 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 confirmed that authority and control of the relevant military conferred extraterritorial jurisdiction on the state parties sufficient 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 State’s effective 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. government’s stance on jurisdiction under the ICCPR—that it does not apply extraterritorially—remains 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 first time in the Court’s 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 conflict 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 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 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 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. 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 effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence—extended to situations of security internment in an international armed conflict.[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 conflicts.[10]

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.”[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 5—the 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 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 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 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.”[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 conflict? 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 undefined exceptional circumstances. In paragraph 64, the HRC restates that in situations of armed conflict, “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 conflicts in paragraph 64, but in paragraph 66, the HRC notes that “in international armed conflict 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 conflicts in paragraph 66 implies that only IHRL applies in such conflicts.[16]

I suggest that a subtle difference can be discerned between the approach of the ECHR and HRC. The ECHR requires armed conflict security detention to comply with Section 5 European Convention, whereas the HRC assumes in principle that armed conflict security detention complies with Section 9 ICCPR. So parties to the European Convention are required to be satisfied that armed conflict 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 conflict 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.