ECHR Grand Chamber finds deprivation of liberty does not violate EU Convention where carried out in accordance with Geneva Conventions

Hassan v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 29750/09, 16 September 2014)

In September 2014, the Grand Chamber of the European Court of Human Rights held that the deprivation of liberty in the context of international armed conflict that is consistent with the four Geneva Conventions does not violate article 5 of the EU Convention, which seeks to safeguard liberty and security.

Facts

This judgement concerned the capture and detainment of the applicant’s brother, Tarek Hassan. Tarek was an Iraqi national who was captured by the United Kingdom armed forces as a suspected prisoner of war, combatant or civilian posing a threat to security during the hostilities in 2003. After his arrest, Tarek was detained at Camp Bucca, a facility operated by the United States forces. Some time after his release, Tarek’s dead body was allegedly found bearing marks of torture and execution.

The applicant claimed that the arrest and detention of Tarek was arbitrary, unlawful and lacking in procedural safeguards. On this basis, he alleged that the UK government breached article 5 of the European Convention on Human Rights.

Article 5(1) of the EU Convention relevantly provides that “[e]veryone has the right to liberty and security of the person” and that “[n]o one shall be deprived of his liberty”, except in certain circumstances set out in sub-paragraphs (a) to (f) of article 5(1). Article 5(2) further requires that every detainee should be informed of the reasons for their arrest, and article 5(4) requires that every detainee should be entitled to take proceedings to have the lawfulness of their detention decided by a court. 

The UK submitted that in the context of international armed conflict, the detention of Tarek was consistent with article 5 of the EU Convention, which should be interpreted to take into account the four Geneva Conventions of 12 August 1949, which contain provisions relating to the treatment of prisoners of war.

Decision

A preliminary issue was whether Tarek was within the jurisdiction of the UK at the relevant time. The Grand Chamber held that Tarek was within jurisdiction on the basis that Tarek was within the physical power and control of the UK from the time of his capture until his release. In reaching this conclusion, the Grand Chamber confirmed the view in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011 that “the use of force by a state’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction”.

However, although Tarek was within the jurisdiction of the UK government, the majority of the Grand Chamber went on to hold that in light of the rules of international treaty interpretation and the need for consistency, the capture and detainment of Tarek was consistent with article 5 of the Convention.

The Grand Chamber’s starting point was the “constant practice interpreting the Convention in the light of the rules set out in the Vienna Convention on the Law of Treaties”. The Vienna Convention directs any person interpreting a treaty to have regard to “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” as well as “any relevant rules of international law applicable in the relations between the parties”. 

The Grand Chamber noted that although there was no practice of the contracting parties to derogate from their obligations under article 5 of the EU Convention, it was nonetheless necessary to ensure that the EU Convention was “interpreted in harmony with other rules of international law of which it forms part”. This meant that article 5 had to be interpreted in light of the provisions of the Geneva Conventions designed to protect captured combatants.

As such, although not expressly permitted by article 5, the otherwise unauthorised detention of suspected combatants would not breach article 5 in the context of international armed conflict where it was carried out in accordance with the Geneva Conventions. In that context, the taking of prisoners of war and the detention of civilians posing a threat to security were accepted features of international law. The Grand Chamber did stress that the safeguards article 5 should still be accommodated so far as possible.

With this interpretation in mind, the Grand Chamber held that although Tarek was within the jurisdiction of the UK, there was no violation of article 5 of the EU Convention. The Grand Chamber found that there were legitimate grounds under international law for capturing and detaining Tarek, and that he had been screened and released as soon as it was determined that he was not a threat to security. On this basis, his detention was consistent with the UK’s power under the Geneva Conventions and was not arbitrary.

Commentary

This was the first time the Grand Chamber considered whether the right to liberty found in article 5 of the EU Convention could be “disapplied” during times of international armed conflict. The Grand Chamber effectively read additional exceptions into article 5, interpreting it to accommodate the broader powers found in the Geneva Conventions.

Previously, courts have considered the interaction between human rights law and international humanitarian law in the context of derogation from obligations. However, interestingly, the UK did not attempt to derogate from its article 5 obligations under article 15 of the EU Convention. Article 15 allows states to derogate from certain obligations in times of war or other life-threatening public emergencies. In this case, the lack of formal derogation did not prevent the Grand Chamber from interpreting article 5 in the context of international humanitarian law.

The Grand Chamber’s decision may open the door for other provisions to be read down in a similar way in the context of armed conflict. This reflects the Grand Chamber’s acknowledgement of the “important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict”: at [97].

The full decision is available online here.

Lauren Enright is a Solicitor at King & Wood Mallesons.