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As well as touching briefly on the question of reparations, this decision address two points that are always of preliminary relevance for post-conflict reparations claims, namely the extent of a State’s jurisdiction when it is operating outside its own territory, and the parallel operation of ECHR provisions and international humanitarian law during armed conflict.
In the period wherein US-led Coalition, with a large force from the United Kingdom (UK), invaded Iraq in an attempt to overthrow the Ba'athist regime of Saddam Hussein, Tarek Hassan was arrested by British troops on 23 April 2003 after he was found on the roof of his house with a machine gun. Tarek, an Iraqi national and brother of an active member of the Ba’ath Party, was taken to Camp Bucca, a detention facility established by the UK that, on 14 April 2003, was formally placed under US auspices but continued to be used by the UK for detaining individuals they had captured. Upon arrival in the camp, as a suspected combatant, Tarek was given Prisoner of War (PoW) status, but after interrogations showed that he was not a security threat, he was transferred to the civilian holding area of the camp on 25 April 2003 from where he was released on May 2nd 2003. Four months later, on 1 September 2003, Tarek was found dead with eight bullet wounds in his chest.
Tarek’s brother, the applicant, lodged a twofold complaint before the European Court of Human Rights (ECtHR) claiming firstly that the circumstances of Tarek Hassan’s death indicated at least a prima facie case that UK troops were somehow involved in Tarek’s death, in violation of Articles 2 and 3 (right to life and prohibition of torture) of the European Convention on Human Rights (ECHR). These Articles impose an obligation on state parties to undertake effective investigations. Secondly, it was claimed that Tarek’s arrest and detention by UK troops in Camp Bucca were arbitrary and unlawful and lacking in procedural safeguards, in breach of Article 5 paragraphs 1-4 of the ECHR, which set out an exhaustive list of permissible grounds on which persons may be deprived of their liberty.
The Court found no evidence that Tarek was ill-treated while in detention, nor that UK soldiers (state agents) were either involved in or responsible for his death, which occurred in a part of Iraq that was not under UK control. With no breach of the right to life or of prohibition of torture established, the UK evidently had no obligation to investigate Tarek’s alleged ill-treatment and death and the ECtHR declared the complaint under Articles 2 and 3 accordingly inadmissible (paras. 63-64).
State agent ground for UK’s extra-territorial jurisdiction
As regards the applicant’s second complaint, the UK government denied that Tarek fell within its jurisdiction under Article 1 ECHR reasoning that the grounds for extra-territorial jurisdiction set out in Al-Skeini[1] are inapplicable in the active hostilities phase of an international armed conflict. Instead, they argued, the UK soldiers’ conduct should be assessed in the light of international humanitarian law (para. 76). Furthermore, the UK submitted that Camp Bucca was primarily under US control and that, pending Tarek’s release in the civilian holding area in the camp, he was not in the custody or control, or under the jurisdiction of the United Kingdom (paras. 71-73).
At the outset, the ECtHR reiterates the principles for extra-territorial jurisdiction at set out in Al-Skeini, entailing among other things that an individual who finds himself under control and authority (e.g. physical power, custody) of state agents operating abroad, falls within that state’s jurisdiction under Article 1 ECHR. The Court thus concluded that, in view of the arrangements operating at Camp Bucca, from the moment of his arrest until the moment of his release Tarek was in the custody of armed military personnel and under the authority and control of the United Kingdom and thus fell within UK jurisdiction (paras. 78-80). Moreover, it emphasised that:
"If the Government’s position were correct, it would have the effect of wholly depriving victims of a contravention of any effective remedy, since the Third and Fourth Geneva Conventions were not justiciable at the instance of an individual. Such a narrowing of the rights of individuals in respect of their treatment by foreign armed forces would be unprincipled and wrong" (para 84).
The merits: no breach of Article 5
The UK government (which did not opt to derogate from its ECHR obligations under Article 15 ECHR in times of war) submitted that Article 5 ECHR was displaced by international humanitarian law as a lex specialis, or modified by it so as to allow for the war-time capture and detention of actual or suspected combatants - or civilians - in accordance with the Third and Fourth Geneva Conventions. Thus, it argued, there was no breach with respect to Tarek’s capture and detention (para. 88). Dealing with this issue, the ECtHR sought guidance in Article 31(3) of the 1969 Vienna Convention on the Law of Treaties (VCLT) containing general rules on the interpretation of treaties. Applying the conditions set out in this provision to the case at hand, the ECtHR finds that there has been no subsequent agreement between state parties, as to the interpretation of Article 5 in situations of international armed conflict. Nor can the ECtHR identify consistent state practice evidencing the intention to derogate from states’ obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. The ECtHR states that ‘the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part’ (para. 77 but see also paras 100-103). This statement was followed by the explicit determination that, even in situations of international armed conflict, ECHR safeguards continue to apply but should be seen through the lens of IHL. Accordingly, the ECtHR holds that only in an international armed conflict and only where this is specifically pleaded by the respondent State, the permitted grounds for detention under Article 5 ECHR should be interpreted, as far as possible, to includethe taking of PoW’s and the detention of civilians posing a risk to security under the Third and Fourth Geneva Conventions (paras. 104, 107). As regards proceduralsafeguards, the ECtHR considered that, in relation to detention taking place during an international armed conflict, Article 5(2) and (4) ECHR must also be interpreted in such way that the context and the applicable rules of IHL are taken into account (para. 106).
The ECtHR ultimately judges that Tarek’s arrest and detention were not arbitrary and that the UK held him in accordance with the Third and Fourth Geneva Conventions. Accordingly, the ECtHR concluded that there had been no violation of Article 5(1), (2), (3) and (4) ECHR. Four judges partly dissent the judgment, essentially on the basis that relevant IHL norms on lawful detention and the permissible grounds for detention of Article 5 ECHR clash and thus cannot be incorporated in the latter provision.
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[1] [GC], 55721/07, 7 July 2011.
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