Hassan v United Kingdom: “human rights law is not rhetorical”

Camp Bucca, Iraq, which prison is under US authority. (Photo: 2009 / NYT)

On December 11, the European Court of Human Rights (ECtHR) heard the case of Tariq Hassan, the applicant, a former detainee of Camp Bucca in Iraq, arrested a month after the beginning of the hostilities, then found four months later, his body riddled with bullets, 600 kilometers away from the camp, his hands tied behind his back. Although he had been released from Camp Bucca, he was still carrying his UK-issued Camp Bucca ID tag. The hearing had made waves: the University of Essex was allowed to submit commentary on the case as a third party, and a delegation of Supreme Court judges from around the world were in attendance. This hearing was not a simple case of jurisdiction, as the United Kingdom representative made it out to be. This hearing touched on two core principles: whether human rights law is suspended in times of armed conflict, and the position of a government regarding its own war crimes when security documents are suddenly declassified. The opening sentence of the United Kingdom set the tone for the following two hours: “if I wasn’t nervous before, I’m nervous now.” And well he should be.

“the UK detained the applicant under the pre-emptive assumption he was an enemy combatant.”

Tariq Hassan was captured by British armed forces in Iraq under the suspicion that he was an “enemy combatant”. Detained and interrogated, he was later released after being considered a civilian by the British, who thought fit to keep him in the camp “as Iraq was a dangerous place”, and a civilian would be better off in a British camp than back home. If both parties are disputing jurisdiction, it is based on whether or not the “active” part of military hostilities were still taking place back then, or if the United Kingdom had effectively become an occupying power, per the Geneva Convention. Throughout the course of the hearing, several inconsistencies on the official status of Tariq Hassan will surface: a civilian, suspected enemy combatant, armed combatant, security threat – all of which can be tied to whether the hostilities were still taking place and the UK was effectively at war, or if persons non engaged into active hostilities could be deemed, by default, civilians. If the UK kept on arguing that military action was legitimate in the case of the applicant, who was found on the roof of his house carrying an AK-47, circumstances need to be taken into account: carrying assault rifles was lawful in Iraq at the time, and the applicant acted lawfully. Whether he posed a security threat to British armed forces in Iraq at the time has always been questioned by the applicant’s counsel, who argued his arrest and detention were linked to the applicant’s activity as a high-ranking official of the Ba’ath party. A debate before the Grand Chamber of the ECtHR could not solve the question of the determined date of the end of active hostilities in Iraq, or what could make an enemy combatant out of a civilian. The issue raised – and the claim made by the applicant under Article 5 – was whether it was justified to apprehend an individual, in a context of armed hostilities, and detain him under the pre-emptive assumption he was an enemy combatant.

The UK will maintain their position throughout the hearing, referring to international humanitarian law (IHL) and the Third Geneva Convention (GC3) in a way that will later explain Justice Secretary Chris Grayling’s position this week. The government asserted and repeated that soldiers are the time were “ill-equipped” to make a judgement on the category of armed combatant they were dealing with, later to say “we can not expect soldiers to apprehend someone, and question themselves: ‘what paragraph of the Geneva Convention is this in relation to?'” he would argue, in response to the Court’s questioning. The counsel, however, argues that the arrest and detention was not arbitrary; detaining Tariq Hassan was “a bargaining chip”, a tool of intimidation against the real target of the military operation, the applicant’s brother, a general in El-Quds Army. The counsel rejects the remise that the applicant was an enemy combatant. Its only crime, they say, was to be related to one, which, in the context of the invasion in Iraq and the permanent, global quest for security and safety launched by the United States and the United Kingdom, is enough to justify arrest and detention. In short, Article 5 does not apply, because one, even as a civilian, is a combatant by proxy, by virtue of blood or location.  The government’s claim that Hassan was deemed “probably a civilian” is just one of many inconsistencies mentioned during the hearing that only confirm the fact that military operations in Iraq at the time, classified up until September, were riddled with issues of territoriality, responsibility and, most of all, accountability.

Appropriate and relevant documentation shed a different light on the story for both parties. The applicant, which alleged a violation of Article 2, was swiftly rebutted by the Government in a way that somehow defies logic: there could be no allegation of ill-treatment, the government said, because, due to its civilian status, the detainee must have been released. Discrepancies on the date of release, the area of the camp in which Hassan was detained, and the obscure circumstances of his release are apparently irrelevant: the Government assumes that no violation could have taken place since the Government would have never been in position to violate the law in any way. The location and the timing of the discovery of Hassan’s body are still an issue of contention; the fact that he was detained after being cleared, however, for “security reasons” – his own security – leaves a lot to be desired as to how the United Kingdom interprets the conditions of Article 5 (1) . Never mind the classification of the operation up until September 2013, about a year after the applicant first made their claims to the Court: as far as the United Kingdom is concerned, in the case of the death of a former civilian detainee in one of their camps in Iraq, “there is nothing to investigate, there is no basis to engage the responsibility of the United Kingdom”.

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James Eadie QC, Counsel for the UK government: “so, this is where Article 5 is .. in juxtaposition with IHL…”

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“… anyway, my point stands, with respect to the Court, that Article 5 is not applicable.”

To evade said responsibility, the Government made it clear it did not recognize the claim of jurisdiction. Ensued a battle of the legality of jurisdiction in the Iraq war, that could be a simple matter of legal hierarchy if it did not imply a vacuum in accountability for possible violations of human rights in Iraq. According to Article 1 of the Convention, extraterritorial jurisdiction is exceptional. What could be more exceptional than the case of an international armed conflict in which the member state later becomes an occupying power? In a sentence that echoes Lord Sumption’s recent assessment of the ECHR, which he accused of “expanding the scope of human rights law”, the Government explained that this case could not be made as a “fundamental development of jurisdiction”, and this on general principle. According to the government, this is an IHL issue, definitely not under the scope of British jurisdiction, therefore the applicant had no claim to petition to the ECtHR. But what constitutes jurisdiction in international armed conflict? The concept of effective control of the area (ECA) will be defined, redefined, stretched and reduced to being clearly meaningless in the eyes of the government, which could not possibly refuse it had ECA under international law without, in the same step, claim it hereby fell under United States jurisdiction. There can be no void of territorial jurisdiction in armed conflict; if a state can claim it has become an occupying power, and “shared some duties” with another occupying power like the UK claimed, it falls beyond the scope of ECA. The Government found itself in the extremely difficult position of trying to reject a claim of responsibility without arguing in favor of another state – an ally – having this responsibility instead. Given the extent of the US and UK collusion in this case, the battle was lost before it even was addressed before the Court.

According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

Trying to reject the ECA, the UK argued  that we “need to be thoroughly cautious when establishing jurisdiction. (…) the UK had become effectively an occupying power (…) and were holding the fine line before anarchy… but that doesn’t mean the UK had effective control of the area.” Since the UK insisted on referring to GC 3 as being the only relevant covenant applicable to this case, a cursory glance at the definition of occupying power the Hague Regulations can be relevant. Article 42,

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Hague Regulations, also mentioned in the opening statements, are pretty clear on the duties of the occupying power and its relation to ECA. On Article 43,

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The reference to the UK holding back against “anarchy” clearly satisfies the “public order” criteria; the application of Article 5 of the Convention is also just as clearly in accordance with the 1949 Geneva Convention protecting civilians. Is there such a thing as a civilian in modern warfare? Has the attack on March 20th, 2003 erased the concept of presumption of innocence? It appears to be so, as the United States often excuse their strikes on non-combatant bases as targeting people loosely linked, or related to, combatants – combatants that have never been defined as such after interrogation and investigation. Tariq Hassan was a civilian, but his status had to be defined as such post interrogation as he was pre-emptively deemed a combatant. This is in violation of the Geneva Convention, regardless of whether the active part of hostilities in Iraq had ended or were still under operation, a concept that the UK tried to raise and was quickly dismissed by the applicant’s legal counsel. The UK seemed to operate under the idea that in times of armed conflict, human rights law is displaced. The Court had several questions in that regard, especially considering the UK had assumed Article 5 would not stand and would prefer to see itself subjected to GC 4. However, GC4 is unequivocal in the protection of civilians in armed conflict.

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

There is no displacement of Article 5 of the Convention under IHL. Article 5 of the Convention maintains the status of civilians and still claims that their rights cannot be renounced. In a previous debate at the House of Lords, Judge Brooks had expressed that it was “utterly unreal” that the United Kingdom be held as having ECA in Iraq, even after they had become an occupying power. In effect, the UK is contesting the very Geneva Convention it is proposing to uphold in lieu of the Convention… by claiming two mutually exclusive concepts, being an Occupying Power and being responsible and accountable under law as having jurisdiction per se. The Government claimed, visibly frantic as he tried to assert his position before a Court that was more than skeptical:  “you can not expect states to establish jurisdiction and all affordable existent rights in cases where they can not practically do so”. According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

The Court had several questions. Between the US and the UK, who effectively had jurisdiction? Why is the US interrogating detainees in UK custody? How is the UK arguing it was not bound by the Convention, but by GC 4, and how did it explain the alleged lapse in legal coverage? How is the UK addressing the massive discrepancies between what is reported and what has emerged in light of the declassified Blackwatch documents?

Why does it appear, in light of the opening statement and the applicant’s declaration, that the UK not only had little control as an Occupying Power, but was not operating alone in the classification, determination, and release of its own prisoners of war?

“The extent of control as exercised by the UK in Iraq was far beyond usual military activities”

The applicant’s claim was simple: this is under British jurisdiction. The UK was in control of military operations area; the applicant was arrested by UK state agents; he was interrogated, in part, by UK forces; the UK was in control of the camp, which it had derived from the US. The UK was hereby, under Convention as well as IHL, responsible for the applicant’s welfare. Attempting to create a legal void in a conflict zone to avoid accountability can not be upheld by the Court. According to previous jurisprudence, the concept of state agent has no clause for exclusivity or derogation of rights. If the UK tries to escape jurisdiction and refer strictly to IHL – which, again, is in complete accordance with the Convention, it is simply “to substract out of its obligations”. Smith v Ministry of Defense also discussed the same issue: it extends powers of the Convention at home and abroad. Details revealed by the recently declassified Blackwatch document precises that “British armed force were strongly encouraged to intervene in local disputes”, and “extent of control as exercised by the UK was far beyond usual military activities.” Camp Bucca was created for criminal justice purposes. The complete theory of avoidance and dismissive attitude of the UK government in regard for human rights law under the pretense of armed conflict is irresponsible. As stated by the ECtHR itself in the Al-Nasri case, “human rights law is not illusory or rhetorical”.

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Tim Otty QC, Counsel for the Applicant: “there is no displacement of Article 5 in the absence of derogation. I would like to go back to the facts.”

Perhaps one of the most telling moments of the hearing was the hurdle faced by the UK government in trying to explain that not only did it not provide derogations as facilitated by Article 15, but that instead of following a lawful way to extend its powers of detention – at war and at peace time – it suggested a modification (!) of Article 5. According to the representative, the conflict of legislation intervenes when Article 5 provides a thorough and almost absolute prohibition of arbitrary detention – “but the Geneva Convention allows a belligerent state to kill in warfare; but detention would be restricted because of Article 5?” the so-called absurdity hereby pseudo-denounced by the UK government is expressively what the UK policy in its intervention of Iraq and Afghanistan has demonstrated: that it reserves itself the right to auto-derogate to human rights law in conflict zones, so as to provide not only a realm for its forces to kill, but also detain, interrogate and torture protected persons under international law, for the simple reason that war is war, and war is dirty, messy, bloody, and sometimes, absurd. If anything happened during this hearing, and if anything had to be strongly emphasized from the applicant’s statement, is that nothing can be considered in absolution of human rights law. Contrary to what the UK government claimed, there is no lex specialis that could ever authorize gross violations of human rights law under the pretense of international armed conflict and situations in which armed forces are, as they said, “ill-equipped” to behave lawfully with parties concerned by the occupation. There is no derogation clearly formulated simply by circumstance. Perhaps knowing that a derogation under Article 15 would be refused, the UK simply marched into Iraq, and expected its own domestic courts to affirm that human rights law had effectively been suspended. It wasn’t, has never been and never will be. Only recourse for the UK at this stage would be with withdraw from the Convention, which would mean withdrawing from the rule of law altogether. This will still, nevertheless, not stop the violations of the Geneva Convention to be made.

Once the applicant had made this point, he paused, and said he would “like to return to the facts.”

The declassification of Blackwatch documents has been briefly addressed, but was absolutely necessary in the course of the hearing. The obtention of these documents by the applicant helped focus and speed up a process by revealing discrepancies and inconsistencies between the information formally submitted by the UK to the Court, and what was effectively reported and documented by armed forces on the ground. The previous declassification of Blackwatch documents as obtained by the applicant were heavily redacted, and this for national security concern; whether those concerns pertain specifically to the Hassan case, the applicant continues that it has remained wholly unexplained. The relevance of the arrest and detention of Tariq Hassan by UK forces – and its second screening and interrogation by US forces – seems to be beyond what the UK has claimed, saying the applicant was of “no intelligence value”, and had been hereby released two or three days after his arrest. However, the date of his release in the Blackwatch documents is different than from the date specified by the UK government; the detail that the applicant has been interrogated not just by the UK forces, who had arrested him, but also by US forces, who technically did not hold authority over that part of the camp, was also revealed. Faced with this strange and ominous example of collusion the UK government struggled to find an appropriate answer:

I … I would have to double-check… It is believed to be… I am not certain. (…) There were loads of people in the camp at the time… The US and the UK were sharing duties.

When pressed, after this monologue interrupted by flipping pages and shooting anxious glances, the representative of the government replied: “the punchline (sic) is, there was a sharing of duties by the UK and the US, yes.” Asked whether the camp was effectively, however, under UK authority, the answer was yes. Later on, when pressed by the Court a little more on the question of why the UK had not asked for derogations under European law, the representative replied: “On the question of Article 15, this, haha, er, haha way above my paygrade, I don’t need to, haha, get shouted at hereafter.” It became absolutely obvious at this stage that the declassification of Blackwatch document was a massive hurdle to overcome for the UK government, and answering for its behaviour in the early stages of the Iraq War was not something it was prepared for; an expectation was surely made that it would avoid the scrutiny of the ECHR, given the lapse in time since the arrest of Tariq Hassan, and domestic UK law requiring that inquiries be made in a timely manner (European law also stipulates that investigations must be made in a reasonable timeframe, and no independent investigation has ever been launched in the UK for the death of Tariq Hassan).

It is incumbent to the United Kingdom to face its own decisions (…) in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. 

More dismissively was the question of why Tariq Hassan, supposedly released from Camp Bucca three months before his death, was still carrying his UK-issued Camp Bucca ID tag with him when he died. Asked what the policy on ID tags were, the UK government replied, “we’ll check back on what the policy was (…) but my point is that it doesn’t prove anything about anything.  Contemporaneous evidence was that he was released. If stage agents are involved in the killing, we need more evidence. The theory that we detained the applicant as a hostage for his sought-after brother is not supported. Theories of UK responsibilities are being peddled.” Hassan, who, once again, was still detained in the “civilian area” (sic) of the camp after he was cleared in order to ensure his safety, was last seen and heard by UK forces, in a UK controlled area. The reason why Hassan would leave and be later executed while carrying his UK ID tag appears to be a coincidence to the United Kingdom. If the UK did not have ECA in Iraq, who did?

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“Saying ‘we’ll go to war, we’ll ignore the provision, and argue for lesser rights’ is not, respectfully, a position to take.”

The applicant closed the hearing, replacing the details of Tariq Hassan’s arrest, detention and death into the broader context – the accountability of crimes committed during the Iraq war, and the necessity to refer to existing bodies of law in order to ensure the application of the rule of law even in times of war. The applicant said, “it is not enough for the United Kingdom to answer ‘we will think about that question’, because that question is specifically what this hearing is about”. Truth is, not knowing – or pretending not to know – about war crimes can no longer stand in an era where classified documents are now at the core of a battle between legal specialists and governments for their declassification. Earlier than same week, Ben Emmerson, who had attended the Al-Nashiri, Abu Zubaydah v Poland hearing – called for right to truth and access to documents hidden for “national security purposes”. The retired judge Lord Gibson  just released a report proving the widespread use of torture by British intelligence forces in Libya. The declassification of Blackwatch is no different. Without said declassification and the obtention by the applicant, legal proceedings would have come to a grinding halt. It is incumbent to the United Kingdom to face its own decisions – in situations where it is an occupying power, a belligerent, or in complete collusion with a belligerent state – in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. The applicant was clear in asserting that there is no basis nor justification for the arrest and detention of Tariq Hassan under either European human rights law or IHL.

Without having lawfully attempted to extend its powers of criminal justice over the territory of Iraq as permitted by Article 15, the UK chose to act differently and carry out unilateral decisions made without the protection of the law. The circumstances of the death of Tariq Hassan are not clear, even after a two-hours long hearing; the discrepancies in the story, however, are addressing the core of the current climate of national security and foreign policy. There is no immunity in a state of war, and there is no escaping the scope of human rights law simply due to armed intervention. Contrary to popular belief and what is enforced at domestic level in both the United States and the United Kingdom, there are still instruments in place to provide accountability for the hundreds of thousands of Tariq Hassan’s across Iraq, Afghanistan, Somalia, Yemen, Pakistan. In the words of the applicant,

Saying “we will ignore those provisions, we will go to war, and argue for lesser rights” is not, we say with great respect, a position to take.  (…)  Engaging in armed conflict, with all the consequences that will flow, must be done in accordance with international law. The United Kingdom says that a derogation is a measure of last resort.  We say, respectfully, that engaging in armed conflict – or at least we hope – is a measure of last resort.

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About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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