Case Watch: European Human Rights Court “Accommodates” Wartime Detention Law

The European Court of Human Rights has handed down another decision related to the applicability of human rights in wartime. The case, heard by the court’s Grand Chamber, involves the detention of an Iraqi national who was captured by UK forces in Iraq in April 2003 and brought to a United States-run military base, Camp Bucca. He was determined to be a civilian and then transferred to a civilian holding area pending release. However, although he was purportedly released in May, he was subsequently found dead several months later, hundreds of kilometers away. The victim’s brother—who was the applicant in the case—claimed the UK detained his brother unlawfully, ill-treated him while in detention, and was responsible for his death (or was at least responsible for not investigating his death).

Ultimately, the Court found there to be no violations.

While the Court has dealt with conflict-related detention and death cases in the past, the case of Hassan v. U.K. covered new ground on several issues. Two of the most important issues related to the 1) applicability of the convention in the context of international armed conflicts and 2) whether or not the European Convention requires states to formally suspend their treaty obligations during war time, known as a derogation, which is envisaged under Article 15 (spoiler alert: the Court said they don’t.).

Here’s what the Court said about those important issues, and a few others:

The United Kingdom objected to the admissibility of the case on various fronts. One was that it was not “detaining” Hassan at the time when he was being held in the civilian holding area pending release. The United Kingdom reasoned that it did not purport “to exercise a legal right to detain him” and that “[h]e stayed at the Camp only because the security situation rendered it irresponsible simply to have released him immediately.” The Court didn’t find merit in this, holding that, “it appears clear that Tarek Hassan remained in the custody of armed military personnel and under the authority and control of the United Kingdom until the moment he was let off the bus that took him from the Camp.” 

The United Kingdom also said that it did not incur responsibility under Article 5 of the convention because Hassam was held in a facility jointly operated by the United Kingdom and the United states, thereby falling short of the the court’s case-law that for jurisdiction to be triggered the contracting state’s agents operating outside its territory must exercise “total and exclusive control” or “full and exclusive control” over an individual. The Court, rejecting this legal reasoning, responded that while “it is true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United states forces … the United Kingdom retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5.”

The importance of this court’s reasoning rests in the fact that many military detention operations around the world are conducted jointly, and states should not be allowed to skirt their detention responsibilities simply by working with allies.

The United Kingdom also presented what I believe to be a novel view that the convention’s “state agent authority” principle was not applicable extraterritorially in times of the “active hostility phase” of an international armed conflict. The “state agent authority” principle recognizes that states have human rights responsibilities to individuals under their control regardless of location. The court said it was “not persuaded by this argument,” and held that the principle remains intact even during “active hostility phase” of an international armed conflict.

Moving to the issue of derogations, the court noted that this case represents the first time the court had the opportunity to determine whether it was compatible with the obligations under Article 5 of the European Convention to detain a person under the Third and Fourth Geneva Conventions in the absence of a valid derogation under Article 15 of the Europan Convention. After making its assessment, the court determined that a formal Article 15 derogation was not necessary, but also held that “the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent state.” That’s to say, the court would not make a derogation argument for a state that fails to do so. (For additional views, see Marko Milanovic’s piece here and the third-party comments to the case from Professors Hampson and Lubell here.)

On the relationship between Article 5 of the convention and the detaining powers of international humanitarian law (as applicable in international armed conflicts), the court regarded there to be a true normative conflict. To resolve the issue, the court—citing the International Court of Justice—said that the convention “continues to apply, albeit interpreted against the background of the provisions of international humanitarian law.” The court then said that Article 5 provisions “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 (emphasis added).” The court, in an apparent attempt to cabin the far reaching implications of its logic, said that it was:

“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. 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.”

As a result of its reasoning, the court then attempted to boil down the obligations of Article 5 in international armed conflict to their most basic foundational principles. The courts said:

“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 .… As regards procedural safeguards, the Court considers that, in relation to detention taking place during an international armed conflict, Article 5 §§ 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law.”

The court, borrowing from international humanitarian law, also provided rules (vague rules) that let states know how they could best comply with their Article 5 obligations during international armed conflicts. The court, making it clear that domestic courts need not be necessarily involved in detainee status determination procedures, and offering no definitive rule on the periodicity of those reviews, noted:

“Articles 43 and 78 of the Fourth Geneva Convention provide that internment ‘shall be subject to periodical review, if possible every six months, by a competent body’. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent ‘court’ in the sense generally required by Article 5 § 4, nonetheless, if the Contracting State is to comply with its obligations under Article 5 § 4 in this context, the “competent body” should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay.”

The court’s decision was, in many ways, the first of its kind. It was certainly the most detailed articulation yet of how the court understands the applicability of human rights detention law and Article 15 derogation rules in times of international armed conflict. Also, whereas in the past the court has only superficially approached the relationship between international human rights law (IHRL) and international humanitarian law (IHL) relationship, often to the chagrin of IHL lawyers, this time the pendulum seems to have swung far in the other direction.