Preview — Hassan v. UK

Tomorrow (December 11, 2013) the Grand Chamber of the European Court of Human Rights (the ECtHR) will hear the case of Hassan v. United Kingdom (Application No. 29750/09). The proceedings can be watched online.

Hassan is the latest in the Iraq-related cases against the UK Government. Like its predecessors, Al-Skeini v. UK and Al-Jedda v. UK, it raises important issues: in particular regarding the scope of Article 1 of the European Convention on Human Rights and the relationship between the Convention and international humanitarian law. It also has wider ramifications since it raises legal questions, albeit indirectly, about joint detainee operations conducted by UK and US forces.

The case concerns the applicant’s brother, Tarek, who, it is alleged, was found dead, bearing marks of torture and execution. In 2003, before the invasion of Iraq, the applicant was involved in the Ba’ath Party which was, at the time, the governing party under the leadership of Saddam Hussein. In April 2003, the British army started arresting high-ranking members of the Ba’ath Party so the applicant went into hiding. He claims that around this time Tarek was arrested by the British army. The UK Government accepts that British forces arrested Tarek but asserts that he was detained as a suspected prisoner of war, in accordance with the Third Geneva Convention, until his status could be determined. It is common ground that Tarek was taken to Camp Bucca, a detention facility operated by United States forces (but there is a live issue regarding the extent of control which the UK exercised over the inmates arrested by them). The UK Government contends that the applicant’s brother was released in May 2003 whereas the applicant claims that his brother’s body was discovered in September 2003, hands tied with plastic wire, body bruised and with eight bullet wounds in his chest.

In 2009, the applicant started legal proceedings before the ECtHR claiming that the UK Government had violated Article 5 (right to liberty and security), Article 2 (right to life) and Article 3 (prohibition on torture and inhuman or degrading treatment).

In summary, the applicant’s submissions in Hassan are that Tarek was within the Article 1 jurisdiction of the UK Government (reliance is placed on both effective control of an area and state agent authority: see Al-Skeini); there is a prima facie violation of Articles 2 and 3 which give rise to a duty to undertake an independent investigation (which the UK Government has not discharged); in the absence of a plausible explanation for Tarek’s death in respect of which the UK Government is not culpable, it must be held responsible and Tarek was arrested and detained arbitrarily, contrary to Article 5.

In response, the UK Government submits (among other things) that Tarek was arrested during a military operation conducted by British forces; that he was released on 2 May 2003 and there is no evidence that he was mistreated at any time; that he was not within the UK’s Article 1 jurisdiction either because the relevant events took place before the UK was an occupying power in Iraq (on 1 May 2003) or because at Camp Bucca he was not exclusively or primarily under UK control and that, even if he was within the UK’s jurisdiction, the ECHR provisions (especially Article 5) are displaced by the lex specialis, international humanitarian law which allows for the capture/detention of actual/suspected combatants.

So, in Hassan, the Grand Chamber has the opportunity to address (again) the scope of Article 1 in the context of UK operations in Iraq and to address (again) the relationship between the European Convention and international humanitarian law.

As to Article 1: Tarek was arrested in April 2003 and so one jurisdictional question is the effect, if any, in Hassan, of the Grand Chamber’s finding, in Al-Skeini, that the UK had effective control over South Eastern Iraq from 1 May 2003, when it was an occupying power. Since Tarek was taken to Camp Bucca, a US-operated detention facility, another jurisdictional question is whether bipartite or joint control is sufficient for the purposes of Article 1.

As to the relationship between international humanitarian law and international human rights law: this is not the first time the ECtHR has been confronted with the relationship between the European Convention and other international law powers and obligations. In the landmark cases of Soering and Chahal the ECtHR provided clear answers: the UK’s extradition treaty obligations, pursuant to which it was sought to extradite Mr Soering, did not displace Article 3 (Soering v. UK) and reliance on the non-refoulement protection in the Geneva Convention, in the face of an Article 3 challenge, did not assist the UK when it sought to deport Mr Chahal (Chahal v. UK). There are other examples. This is, however, an area which has come under increasing scrutiny in recent years. Hassan presents the Grand Chamber with a unique opportunity to address, comprehensively and authoritatively, the relationship between the European Convention on Human Rights and international humanitarian law. 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers