Rooney on Hassan v UK: ‘symbiotic approaches’, ‘subsequent practices’ and amicus curiae

We are very pleased to publish this guest post from Jane Rooney, a PhD candidate at Durham Law School, on the recent decision in Hassan v UK from the European Court of Human Rights.

On 16th September 2014 the Grand Chamber found no violations of Tarek Hassan’s Article 5, 2 and 3 rights under the European Convention on Human Rights (the Convention) after he was arrested and detained in Camp Bucca by British armed forces in Iraq in April 2003. The Grand Chamber decision of Hassan v United Kingdom constitutes one of the most important decisions to date taken by the European Court of Human Rights (the Court) on the issue of applying the standards of the Convention abroad in wartime situations where international humanitarian law (IHL) standards would traditionally apply. The Court’s most important and positive contribution to resolving the tension between Convention standards and IHL was what Lawrence Hill-Cawthorne has described as its ‘symbiotic’ approach to Article 5 right to liberty and security of person which will be described below. Another important finding of this decision was that IHL could apply even if a Contracting Party did not derogate under Article 15. Whether or not a state could derogate abroad was left unanswered, but the impetus for extraterritorial derogations will probably wain in light of this decision because they are not needed for IHL to apply. I describe here why they were unnecessary. In this post I will give a very brief summary of the facts and I will look at the approach adopted by the Court. In analysing the approach I will address criticisms against the Court’s reliance on ‘subsequent practice’ by states, explain the symbiotic approach and acknowledge the importance of the amicus curiae application brought by the Human Rights Centre of the University of Essex.

The Facts

The applicant was Mr Khadi Resaan Hassan acting on behalf of his brother, Mr Tarek Hassan, who was allegedly arrested and detained by British forces in Iraq and subsequently found dead in unexplained circumstances. Khadi Hassan had been a general manager in the national secretariat of the Ba’ath Party and a general in the Ba’ath Party army. Following the occupation of Basrah by coalition forces in April 2003, British forces began arresting high ranking officials of the Ba’ath party. British forces had gone to the applicant’s home with the intention of arresting him but instead arrested his brother, Tarek Hassan found armed on the roof of the applicant’s home, and took him to Camp Bucca where he was detained. The applicant brought actions under Article 5 (right to liberty and security of person), Article 2 (right to life) and Article 3 (right against torture and inhumane and degrading treatment). The actions under Article 2 and 3 were found to be ‘manifestly ill-founded’ under Article 35(3)(a) for lack of evidence of UK forces’ involvement in Tarek Hassan’s death. In considering the application under Article 5, the requirement that a Contracting State must have ‘jurisdiction’ pursuant to Article 1[1] was satisfied under the ‘state agent authority and control’ test[2] (para 75) as British forces exercised control over him during his detention.

The Court’s approach to applying the Convention in Armed Conflict

The Court’s approach to resolving the conflict between Article 5 and IHL contained two steps evolving around two rules of treaty interpretation from the Vienna Convention on the Law of Treaties (VCLT). The first step was to take into account the subsequent practice of states (para 100 citing the VCLT s 31(3)(b)) and the second step was to interpret the Convention in harmony with general international law (para 102 citing VCLT s31(3)(c)). The first step meant that the Court took account of consistent practice by states that could have indicated that they had formed an agreement as to how the text was to be interpreted or even modified after the ratification of a treaty. The Court found that the practice of states indicated that Contracting Parties did not derogate abroad in wartime (para 101). The Court concluded from this that states did not need to derogate in order for IHL standards to apply. Therefore, IHL standards could apply in the present case where the UK had not derogated. The first step has given rise to considerable confusion but its presence can only be understood when seen as a response to submissions made by the applicant and arguments surrounding derogations that preceded the hearing. I will look at the confusion, dispel it and surmise as to what significance this step will have in the future.

‘Subsequent practice’

The Court was directly addressing an argument made by the applicants which was very important to their submission: if the UK had wanted or intended to derogate from the Convention in order to apply IHL standards, they would have and could have done so. This was followed by an academic debate as to whether states could derogate abroad – a debate which gained much momentum (see here for a thorough analysis of the potential for extraterritorial derogations). One element of the question as to whether a state could derogate abroad in order to apply IHL standards instead of human rights standards consisted of the question as to whether states believed that this was the state of affairs. Take the state that has not derogated. Why did they not derogate? There were two possible solutions (is how the argument goes): (1) a state believed it couldn’t derogate and therefore did not: this was said to be evidence that derogations abroad were not possible; (2) a state believed they could derogate abroad but had chosen not to for whatever reason: this was said to be evidence that derogations were possible but the state had chosen not to. All the while, it was argued that derogating meant applying IHL standards whilst not derogating meant applying human rights standards.

Thus commenced the academic debate about why states did not derogate abroad (I also contributed to the debate in a comment), some saying because they believed they weren’t possible, but most saying that there were motives for not derogating and therefore that extra-territorial derogations were possible and could provide a solution to the norm conflict between Convention standards and IHL standards where such a conflict might arise. It is within this context that the Court wrote that state practice consistently indicated that states advocated IHL standards to be applied abroad rather than Convention standards and that a derogation was not required for this to happen (para 101). This is a conflation of the questions as to whether a state can derogate abroad and whether IHL standards can be applied without a derogation. For the Court, a practice of not ever lodging derogations in time of war was a sign that states believed IHL applied in wartime despite international human rights obligations.

The Court’s reasoning is flawed in its conflation of the two questions as to whether the state derogated and whether IHL applied; it forgets about the opinio juris of the state – or determining whether the state actually believes it can derogate or whether IHL applies – and relies instead solely on the actions of states; it does not address theoretical difficulties with s32(3)(b). However, appraising its reasoning within the broader scheme of the judgment – and seen from the perspective of an international human rights court which often uses the VCLT and other rules of general international law in a superficial way to shape and justify its approach – it can be seen that ‘subsequent practice’ played a part in doing only one thing. From the Court’s point of view it enabled the Court to say: ‘In light of the above considerations, the Court accepts the Government’s argument that the lack of a formal derogation does not prevent the Court from taking account of the context and the provisions of [IHL] when interpreting and applying Article 5 in this case’ (para 103). It thus directly answered the argument that the applicant had placed at the core of his submissions as to whether a state had to derogate to apply IHL: the Court made it clear that a state does not need to derogate from the Convention to apply IHL standards (reiterated expressly at para 107). It would be wise of the Court, having settled that matter, to not return to s32(3)(b).

The ‘symbiotic’ approach

Article 31(3)(c) provides that in interpreting a Treaty relevant rules of international law must be taken into account: in this case, IHL. Under this provision the Court attempted to strike a balance that prevented it from surrendering Convention standards to IHL standards whilst also being cognisant of those standards. The Court acknowledged that the provisions of the Third and Fourth Geneva Conventions relating to interment ‘were designed to protect captured combatants and civilians who pose[d] a security threat’ (para 102).

‘Nonetheless, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision 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.  The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.’ (para 104) [emphasis added]

As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be “lawful” to preclude a violation of Article 5 § 1. This means that 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 (para 105).

The case then provided the first example of the ‘symbiotic’ approach in operation. The Court applied this principle to Articles 5(2) and (4), which provide that the individual should be informed promptly for the reasons of his arrest and that an individual shall be ‘entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. It acknowledged that the Four Geneva Conventions applied where territory was occupied (para 108 citing Article 2 common to all Four Geneva Conventions). The Court found that although there had been no access to an ‘independent court’ which was required under Article 5(4), in times of armed conflict, a review by a ‘competent body’ would suffice as was necessitated under Articles 43 and 78 of the Fourth Geneva Convention (para 106). It was however necessary that the competent body provided ‘sufficient guarantees of impartiality and fair procedure to protect against arbitrariness’ and the first review had to take place shortly after the person was taken into detention with subsequent reviews at regular intervals (para 106).

The Court found that Tarek Hassan was not arbitrarily detained because there was enough evidence to suggest that he could have been an enemy combatant or a civilian who posed a threat to security which were legitimate reasons for internment under Articles 4A and 21 of the Third Geneva Convention (para 109). Article 5(4) was satisfied because he was ‘[a]lmost immediately’ interviewed and released as soon as they determined that he did not pose a threat to security (para 109). Therefore no violation of Article 5(4) was found because it was interpreted through the prism of IHL. Furthermore, because he was interviewed as soon as he was brought to Camp Bucca he knew the reasons for his arrest quite promptly. Although there may be discrepancies as to whether the ‘competent body’ was sufficiently impartial or whether he was released promptly, the symbiotic approach represents a positive development in this area of law.

Amicus curiae

The third party amicus curiae application of the Human Rights Centre of the University of Essex must be acknowledged for having helped significantly to shape the ‘symbiotic’ approach. The Court appeared to take into consideration three of their proposals: that the doctrine of lex specialis[3] was ‘unhelpful’ in clarifying the relationship between international human rights law and IHL (para 93); that the Court might be accused of being ‘disconnected from reality’ if it imposed only human rights law standards in times of war and ignored IHL (para 94); and that there were two options for the court in confronting the tension between Convention standards and IHL. These were described as follows: ‘[w]here the State had not derogated but had relied on [IHL], it would be open to the human rights body either to take account of [IHL] or to insist that the only way of modifying international human rights obligations was by derogation’ (para 94).

It also advised that:

‘Any given situation was likely to require elements of both bodies of law workingtogether, but the balance and interplay would vary. Accordingly, there might be situations, such as the detention of prisoners of war, in which the combination of criteria lead to the conclusion that international humanitarian law would carry more weight, and determination of human rights violations regarding issues such as grounds and review of detention would be based on the relevant rules of international humanitarian law. Even in such contexts, however, human rights law would not be under absolute subjection to international humanitarian law. For example, if there were allegations of ill treatment, human rights law would still assist in determining issues such as the specificities of the acts which constituted a violation. From the perspective of the human rights body, it would be advantageous to use human rights law as the first step to identify the issues that needed to be addressed, for example, periodicity of review of lawfulness of detention, access to information about reasons of detention, legal assistance before the review mechanism. The second step would be to undertake a contextual analysis using both international humanitarian law and human rights law, in the light of the circumstances of the case at hand. On condition that the human rights body presented its analysis with sufficient coherence and clarity, the decisions generated would provide guidance to both States and armed forces ahead of future action. It went without saying that the approaches and the result had to be capable of being applied in practice in situations of armed conflict’ (para 95).

The importance of this advice by the amicus curiae cannot be understated. It indicates the importance of scholarship directly engaging with the Court in order to help shape its approach in politically charged situations in the most effective and sensible ways without forcing the Court to sacrifice its ideals. The impact of this scholarship on this case was crucial and should be applauded for its balanced approach.

Conclusion

This is not an exhaustive list of the issues arising from this case. However, it hopefully highlights important points: forgive its reasoning on ‘subsequent practices’, celebrate the ‘symbiotic approach’, and thank the University of Essex for its helpful submission.

[1] Article 1 of the Convention requires that a Contracting Party must secure Convention rights to everyone ‘within their jurisdiction.’ If the Contracting Party does not have jurisdiction in the circumstances then the state is not bound by the Convention in that instance.

[2] Invoking Al Skeini v the United Kingdom at para 196.

[3]Lex specialis provides that the more specific rule will trump the general rule. IHL is considered to be provide a more specific set of rules governing armed conflict than human rights law.

 

Rooney on Hassan v UK: ‘symbiotic approaches’, ‘subsequent practices’ and amicus curiae

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