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Reflections on Hassan v UK: A Mixed Bag on the Right to Liberty (Part 2)

Today’s post is the second in a two-part series examining the recent ruling by Grand Chamber of the European Court of Human Rights (GC), Hassan v UK, and the relationship between International Humanitarian Law (IHL) and Articles 1 (jurisdiction) and 5 (the right to liberty and security) of the European Convention on Human Rights (ECHR). To recap, the GC found that the United Kingdom did not violate Tarek Hassan’s human rights while he was a prisoner of British forces in Iraq in 2003. It did, however, find he was within the UK’s jurisdiction and control. Last Friday’s post focused on the Article 1 aspects of the case, this post explores the relationship between IHL and Article 5.

Responding to charges that British forces violated Hassan’s human rights under the ECHR, the UK argued that,

  • where provisions of the ECHR fell to be applied in the context of an IAC, the application had to take account of IHL which, as the lex specialis, might operate to modify or displace a given provision of the ECHR (§87);
  • since Hassan was captured and initially detained as a suspected combatant, Article 5 was displaced by IHL as the 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,” such that the UK had not breached Hassan’s Article 5 rights (§88);
  • alternatively, 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, IHL. For example, the taking of POWs pursuant to the Third Geneva Convention and the detention of civilians pursuant to the Fourth Geneva Convention had to be a lawful category of detention under Article 5(1)(c) (§89);
  • Article 15 (and the possibility of derogation) did not preclude such an interpretation of Article 5. Indeed,

“[a]ny argument that, unless there had been a derogation under Article 15, Article 5 should be interpreted and applied regardless of the context and the detailed rules of [IHL] governing detention of suspected combatants would risk diminishing the protections available to combatants or civilians (in effect, by precipitating derogations by concerned States). It would also be inconsistent with a seemingly universal State practice in terms of the detention of actual or suspected combatants in international armed conflicts, as well as the jurisprudence of the Court and the International Court of Justice, which had made it clear that the application of international humanitarian law as lex specialis was a general principle, and not one that depended on whether there had been a derogation under an applicable human rights treaty.” (§90)

The GC stated that:

  • this was the first case in which a respondent state had asked the court to disapply its obligations under Article 5 or “in some other way” to interpret them in the light of IHL detention powers (§99).
  • the starting point was the court’s “constant practice” of interpreting the ECHR in the light of the Vienna Convention on the Law of Treaties and, in particular, Articles 31(3)(b) and (c), which provide that, in treaty interpretation, account shall be taken of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and any relevant rules of international law applicable in the relations between the parties (§100).
  • The practice of High Contracting Parties to the ECHR is not to derogate from Article 5 in order to detain persons pursuant to the Third and Fourth Geneva Conventions during IACs (§101). This is mirrored by State practice in relation to the ICCPR (§101).
  • The court must endeavor to interpret and apply the ECHR in a manner which is consistent with the ICJ’s case law, i.e. that IHL and IHRL co-exist in situations of armed conflict (§102).
  • It accepted the UK’s submission that the lack of an Article 15 derogation did not preclude the GC from taking IHL into account when interpreting and applying Article 5 (§103). However, the court would only take account of IHL in interpreting Article 5 “where this is specifically pleaded by the respondent State. It is not for the court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect.” (§107)
  • Since IHL and ECHR co-existed in times of armed conflict: the grounds of permitted deprivation of liberty in Article 5(1) “should be accommodated” with permissible detention in an IAC under the Third and Fourth Geneva Conventions (§104). To preclude a violation of Article 5(1) the deprivation of liberty must comply with the rules of IHL and protect the individual from arbitrariness (§105). Similarly, the procedural safeguards of Articles 5(2) and (4) must be interpreted in a manner which takes into account the context and the applicable rules of IHL (§106).
  • Applying this to the facts in Hassan: there was no violation of Articles 5(1), (2), (3) or (4) (§§108-111).

There are two principal difficulties with the GC’s approach and conclusion in relation to Article 5. First, is recourse to IHL justified where the UK could have, but did not, enter an Article 15 derogation from Article 5 and secondly, is recourse to IHL possible as a matter of interpretation given the specific wording of Article 5? These are considered in more detail below:

  • It is uncontroversial that while the analytical gateway of the Vienna Convention on the Law of Treaties (cf. lex specialis), the ECHR is to be applied as far as possible in harmony with other principles of international law: see, e.g., Al-Adsani v UK (GC, 21 November 2001), §§52-67. It is also uncontroversial that this interpretative approach can be applied so as to construe specific provisions of the ECHR in the light of well-established IHL: e.g., Article 2 which protects the right to life and to which only very limited derogations under Article 15 are permissible. See, e.g., Varnava v Turkey (GC, 18 September 2009), §185 and the ICJ Nuclear Weapons advisory opinion in which the ICJ said the question of what amounts to an arbitrary deprivation of life may be determined by reference to IHL.
  • What is controversial, however, is, as noted above, first, whether this interpretative approach may properly be applied where the provision in question, Article 5, may be derogated from pursuant to Article 15 but where the UK did not enter such a derogation and, secondly, whether this interpretative approach is applicable to Article 5 given the specific and comprehensive way in which that provision is drafted (cf. Article 9 of the ICCPR).

As to the first point:

  • The GC accepted the UK’s submission that the lack of an Article 15 derogation did not preclude it from taking IHL into account when interpreting and applying Article 5.
  • The GC reached this conclusion at least partly on the basis that state practice regarding both the ECHR and ICCPR is not to enter derogations regarding detentions made pursuant to the Third and Fourth Geneva Conventions (see above).
  • This premise does not support the GC’s conclusion because the state practice simply begs the questions: what are the reasons explaining the state practice and what (if anything) do those reasons say about whether IHL may be used when assessing the human rights’ lawfulness of detentions? The GC should have considered these questions. In particular, the GC should have considered whether the state practice is explicable (partly at least)  by reference to jurisdictional issues and therefore whether it has any continuing relevance to the relationship between IHL/IHRL. Thus, as Mr. Justice Leggatt observed in Mohammed,

Article 15 accordingly permits a state, within defined limits, to derogate from its obligations under the Convention “in time of war or other public emergency threatening the life of the nation.” This wording, however, (in particular the word “other”) tends to suggest that Article 15 was not intended to apply to a war overseas which does not threaten the life of the nation. That is no doubt because those who drafted the Convention did not envisage that a state’s jurisdiction under Article 1 would extend to acts done outside its territory. Now that the Convention has been interpreted, however, as having such extraterritorial effect, it seems to me that Article 15 must be interpreted in a way which reflects this. It cannot be right to interpret jurisdiction under Article 1 as encompassing the exercise of power and control by a state on the territory of another state, as the European Court did in the Al-Skeini case, unless at the same time Article 15 is interpreted in a way which is consonant with that position and permits derogation to the extent that it is strictly required by the exigencies of the situation.” (§155, emphasis added)

  • The GC’s conclusion – that the lack of an Article 15 derogation did not preclude the UK from relying on IHL – is undermined by the GC’s later stipulation that a state must “specifically plead” IHL before the court would apply it in modifying Article 5 because the court will not otherwise “assume” that the state “intends” to modify its ECHR obligations. By stipulating this pleading requirement, the GC acknowledges that there is no principled need to have regard to IHL for the purpose of construing and applying Article 5 and that the application of IHL will only be considered if the state wishes to modify its ECHR obligations. In these circumstances, it is all the more unsatisfactory that the GC should have so easily accepted that the lack of an Article 15 derogation – which is, after all, the prescribed mode for a statement of intent and which requires a State to face up to the political consequences of its choice – did not preclude the UK from relying on IHL.

As to the second point: not only does Article 5 contain an exhaustive list of permissible grounds of detention (“No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law..”) but it uses very specific terms, e.g. “court” in Article 5(4). Perhaps unsurprisingly the GC does not dwell, in Hassan, on these interpretative difficulties (see, e.g., §106). It is, therefore, highly questionable, to say the least, whether the GC’s interpretation of Article 5 is consistent with the words of that provision and Article 5 case law. Compare this with Mr. Justice Leggatt’s approach in Mohammed where he rejected the MoD’s invitation to interpret Article 5 in the light of IHL: “Given the specificity of Article 5, there is little scope for [the IHL] lex specialis to operate as a principle of interpretation.” (§291). Moreover, as he went on to observe, “in view of my conclusion that in a non-international armed conflict IHL does not specify grounds for detention or procedures to be followed, there are in my view no relevant rules of IHL with which to try to harmonise the interpretation of Article 5.” (§291). The premise for the application of the interpretative approach – that there are clearly identifiable and well-established rules regarding detention in IHL – was, therefore, missing in any event in Mohammed.

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About the Author

is a Queen's Counsel Barrister practicing at Blackstone Chambers.