The case of Hassan v United Kingdom, concerns the detention by British forces in Iraq of the brother of Khadim Resaan Hassan, Tariq Hassan, and his subsequent release and death. Khadim Resaan Hassan was a high ranking member of the Ba’ath Party under the leadership of Saddam Hussein and the applicant in the present case. The applicant claimed a breach of Article 2, 3 and 5 of the European Convention on Human Rights (ECHR). Two pertinent questions of law arise in relation to Article 5: firstly, whether British forces had ‘jurisdiction’ and secondly, whether international humanitarian law (IHL) standards should apply when determining the legality of the detention.
Firstly, it was unclear whether jurisdiction could be found because Camp Bucca was a facility operated by US forces with the caveat that British forces exercised some control over the inmates arrested by the UK military. Would this British military control be sufficient to establish Article 1 jurisdiction or would the Court find joint jurisdiction between the UK and US? Would the UK be found responsible under the Convention if joint jurisdiction was established? Although a complex jurisdictional setting, the state authority and control model is arguably met because of the UK’s control over its own detainees within Camp Bucca.
For the purposes of this post I would like to concentrate on the second issue raised here, which dominated the proceedings earlier in December: the issue of whether IHL standards should apply when determining the legality of the detention abroad in conflict zones. I wish to focus in particular on the applicant’s submission that absent a derogation from the ECHR under Article 15, the Court must apply the provisions of the ECHR instead of IHL. I want to look more closely at the invocation of Article 15 abroad: the truth of the assertion, the motivation of the applicant for such an assertion, whether one can in fact invoke Article 15 abroad jurisprudentially, and most importantly, whether Article 15 can provide an answer as to which body of rules the Court will apply in situations of conflict: the ECHR or IHL. It is submitted that the applicant’s submission is incorrect, that there is a tactical motivation for such an assertion, that an invocation of Article 15 abroad is not jurisprudentially sound, and that such an invocation will certainly not help to answer the ECHR/IHL conundrum in conflict situations abroad.
The applicant’s submission
The applicant submitted that the ECHR was not displaced by IHL in the present case because the UK had not opted to derogate from the ECHR under Article 15: the UK was in a position to dictate whether its ECHR obligations applied or whether IHL applied by choosing to derogate or by choosing not to derogate whilst being an occupying force in a foreign territory. Because the UK had chosen not to derogate it had accepted that its ECHR obligations applied in contradistinction to its IHL obligations. This assertion is questionable. The fact that no state has ever attempted to derogate abroad is evidence of the fact that they did not think it conceivable. Marko Milanovic argues in an earlier post on EJIL:Talk! that states did not derogate because derogating would be conceding that the Convention applied – that they had Article 1 jurisdiction. However, it was not until Al–Saadoon that it was clear that jurisdiction could be found in cases of detention abroad in a British military base. Thus it is unlikely that the UK was concerned that by derogating it would be conceding that it had met the Article 1 jurisdiction threshold. It is most likely that the UK believed that IHL would apply with no question of the ECHR applying.
The Motivation of the Submission
There was a tactical advantage in making an Article 15 submission instead of one solely based on asserting that human rights standards could trump IHL in times of conflict. The UK government had provided convincing arguments that IHL should be applied in lieu of the ECHR: IHL was lex specialis and, alternatively, Article 5 should be interpreted harmoniously with international law standards as laid down in the Geneva Conventions. Even if you do not find these arguments convincing, adopting Article 15 provided a tactical advantage insofar as it arguably provided a more palatable focal point. It temporarily diverted the focus away from the controversial IHL/ECHR debate. The conflict of regimes question, broadly construed, is an extremely difficult one. One of the greatest concerns that this question raises is whether courts or legal professionals should be deciding on such value and policy orientated matters. By emphasising in a submission the provision of Article 15 the conversation turns to law, and more specifically, a conversation about ECHR law. However, although it serves as a temporary diversion, eventually we will return to the awkward question we tried to avoid: which body of law applies? (discussed below)
Extraterritorial derogations: the Jurisprudence
Article 15 provides that a state can derogate from the ECHR ‘[I]n time of war or other public emergency threatening the life of the nation’. The conflict in question falls within ‘war’ or ‘public emergency’. However, how can ‘life of the nation’ be interpreted so that the UK can make an extraterritorial derogation? Do we mean the life of the nation of the UK? If not, can ‘life of the nation’ be interpreted to mean Iraq or Afghanistan? I agree with Marko Milanovic when he concedes that invading Iraq did not threaten the life of the UK. However, ‘life of the nation’ cannot mean areas of Iraq or Afghanistan either. ‘Public emergency’ is interpreted very flexibly with a large margin of appreciation accorded to the state, but ‘life of the nation’ is not interpreted in a very ‘deferential’ way at all, even in the terrorism cases after 9/11. Sometimes it is confined to a smaller geographical area (for example in Sakik v Turkey) within that state but its definition has never entailed exceeding the territorial boundaries of that state
Can one argue that Article 1 jurisdiction creates an extension of the nation of the UK? It must be born in mind that Article 1 jurisdiction has nothing in common with jurisdiction under public international law. It is merely a threshold criterion that triggers the application of the Convention. Even if it was another category of state jurisdiction, this is not the same as extending the notion of ‘nation’ extraterritorially. To state that Article 1 jurisdiction somehow extends the nation of the UK or can be interpreted in that way for the purposes of Article 15 could be construed as politically contentious.
If one thinks that the ‘life of the nation’ could refer to Iraq or Afghanistan, then why should the UK be able to derogate from its obligations when it is the life of another nation that is in jeopardy?
Would invoking Article 15 solve the ECHR/IHL conundrum?
Marko Milanovic stated that the UK’s strategic choice not to derogate in Iraq or Afghanistan is exposed as more and more dubious. In other words, the UK needs to be able to curtail its Article 5 ECHR obligations abroad in conflict situations and it could do so by derogating. However, would a derogation help the UK to do this?
(i) Will IHL apply when states derogate?
The applicant in Hassan thought that if a State declared a derogation from the ECHR then IHL would apply. The first branch of Article 15 states that there needs to exist a state of emergency. The second branch entails that the measures implemented need to be ‘strictly required by the exigencies of the situation’. Judge Paulo Pinto de Albuquerque, a judge of the Grand Chamber present at the hearing, asserted that the Court confines itself to applying its own proportionality test when determining whether the measures applied in a time of emergency are strictly required by the exigencies of the situation (at c. 1:15:00), and did not understand why the applicant thought that IHL would automatically be applied after a derogation. If the Court applies IHL standards, it is unlikely that it will not at least consider its tremendous case law on the meaning of ‘strictly required by the exigencies of the situation’ in the context of Article 15. In these circumstances, the Court will arrive at the original question we sought to avoid: ECHR or IHL?
(ii) If IHL does not apply and ECHR applies
In the eventuality that the ECHR law applies, the cases coming from abroad concerning UK military operations invoke Articles 2, 3, 5 and 6. Articles 2 and 3, both in their substantive and procedural aspects, are non-derogable. Therefore a derogation will not alter the state’s obligations abroad under these provisions. The derogations from Article 5 have to be ‘strictly required by exigencies of situation’. Looking solely at the ECHR derogation case law on Article 5 it is evident that those standards were promulgated for the domestic arena in order to empower the executive to take greater measures to address the threat of terrorism. But all of the case law does illustrate that the Court engages in a very close scrutiny of the second branch and it is not clear how derogating will ‘free’ the respondent states from oversight by the ECtHR in conflict situations.
Conclusion: Derogations will not solve the ECHR/IHL problem
The problem of the conflict between IHL and the ECHR needs extremely careful consideration. Introducing derogations abroad will not fix any of these conflicts. On the contrary, it will undoubtedly create a myriad of additional problems. Whilst the problems of applying Article 15 abroad might tangentially occupy us for some time, eventually the root of the problem will have to be addressed once more: to what extent should IHL apply when interpreting the ECHR in situations of conflict abroad?