Last week the Grand Chamber of the European Court of Human Rights held an oral hearing in what is bound to be a very important case, Hassan v. UK. The case deals with the detention of an Iraqi by British forces in southern Iraq and his subsequent release and death under unclear circumstances. As such it raises both threshold questions on extraterritorial applicability/Article 1 jurisdiction and substantive issues on the relationship between human rights and international humanitarian law. Here is the Court’s press release on the hearings, and here’s the actual webcast of the hearings. Shaheed Fatima also has a good preview of the case over at Just Security.
The jurisdiction issue is made more complicated by uncertainties left after Al-Skeini as to whether and when exactly the UK had effective overall control over southern Iraq for the purpose of spatial model of Article 1 jurisdiction, as well as by the fact that the camp to which Hassan was taken upon arrest was run by the US. The multiplicity of actors can thus render both the jurisdiction and the attribution questions more difficult. But I will not deal with them here. Rather, I want to focus on the interaction between the ECHR and IHL.
In that regard, together with the pending Georgia v. Russia interstate case, Hassan presents an excellent opportunity for the Court to articulate a clear and systematic approach on IHL. Hopefully this is an opportunity that the Court will take up, and the questions posed by the various judges during the oral hearing are an indication that they will do so.
Why is Hassan such a good case? Because at least in part it poses the hard question of potentially unavoidable norm conflict (a topic which I have dealt with extensively here, as well as specifically in the context of IHL and IHRL here). On the one hand, the UK is arguing that Hassan’s arrest and preventive security detention were authorized by IHL in an international armed conflict (the exact theory is for the time being beside the point). On the other hand, Article 5 ECHR categorically prohibits preventive security detention; unlike Article 9 ICCPR, which prohibits arbitrary deprivations of liberty, Article 5 ECHR contains an exhaustive list of permitted grounds for detention, and preventive security detention is not one of them. Hence, when states wanted to use internment in the context of internal disturbances or emergencies which may even have reached the level of non-international armed conflict, they had to derogate from Article 5 pursuant to Article 15 ECHR, as the UK did for Northern Ireland.
In the context of Hassan this raises the preliminary question of whether the UK could have derogated with respect to the situation in Iraq (which in any event it did not do), i.e. whether Article 15 ECHR allows for extraterritorial derogations. Article 15 limits derogations to times of ‘war or other public emergency threating the life of the nation.’ In Al-Jedda Lord Bingham expressed doubts that this formulation could extend to situations outside the derogating state, especially those which it had put itself in willingly, a sentiment later echoed by the UK Supreme Court in Smith. In other words, the UK chose to invade Iraq, and however bad the situation was for Iraqis in Iraq it in no meaningful way threatened the life of the UK. Further support for this position would be found in the fact that no state has ever derogated for an extraterritorial situation.
Yet this view can be criticized as too rigid and formalist. The more expansive the approach to the jurisdictional threshold question of extraterritorial application, the more arbitrary it seems to deny states the right to derogate in situations which truly may be extraordinary. The ‘life of the nation’ test has besides been applied by international human rights bodies in a realistic and deferential way. For instance, the European Court was prepared to accept in principle that the terrorist threat post-9/11 was indeed a threat to the life of the nation when the UK derogated to use preventive detention; the problem was that the derogation was discriminatory and confined to foreign nationals. The derogation would likely have been upheld otherwise, at least for a time. This was so even though the terrorist threat, though very serious, was not and is not truly existential – more people die each year in the UK and the US from choking on pretzels or falling in the bathtub than from any acts of terrorism.
I hence see no good reason to categorically prohibit extraterritorial derogations. States have hitherto not derogated extraterritorially not because they were in agreement that such derogations were not possible, but because if they had derogated they would have conceded that the Convention actually applied, and their first and sometimes only line of defence was that the Convention simply does not apply. The UK Government in Al-Jedda thus explicitly reserved its position on whether it could derogate in extraterritorial situations, while still maintaining its original strategy of arguing against extraterritorial application even post the Grand Chamber’s judgment in Al-Skeini, which it interpreted as confined to the specific facts of Iraq and not applicable to say Afghanistan. But as the UK continues losing cases on the threshold question of jurisdiction, its strategic choice not to derogate in either Iraq or Afghanistan is exposed as more and more dubious.
The position that the Court takes in Hassan on the permissibility of extraterritorial derogations will have direct bearing on how it sees the relationship between IHL and the ECHR. Assuming in that regard that the ECHR applied to Hassan’s detention, and that his detention was in fact authorized by IHL, what are the Court’s options? I would see at least four such options:
Option 1 – human rights fundamentalism: Extraterritorial derogations are not possible at all, or they are not possible when the state chooses to put itself in a difficult situation, i.e. directly contributes thereto, and they are certainly not possible in cases of foreign interventions contrary to the UN Charter in violation of another state’s sovereignty. While IHL may be taken into account to an extent when interpreting the ECHR, the analysis of any deprivation of liberty must always be a purely human rights one, as to do otherwise would be to deny the universality of human rights. Any kind of preventive security detention would be unlawful.
Option 2 – extraterritorial derogation in IACs or cross-border NIACs: The Court could hold that while the ECHR should in situations of armed conflict be interpreted while taking into account the rules of IHL in accordance with Article 31(3)(c) VCLT, such harmonious interpretation can only go so far and there will be some cases in which specific rules of the ECHR and IHL genuinely conflict. Preventive detention would be one such case; the use of lethal force another. Since neither the ECHR nor IHL are hierarchically superior to one another, the only way of avoiding an otherwise unresolvable norm conflict would be for the state to derogate. If the state fails to do so, gambling that the Convention does not apply at all, then it must bear the consequences if the Convention does in fact apply. Thus, it is perfectly possible for Hassan to have been lawfully detained under IHL, but for his detention to have been unlawful under Article 5 ECHR.
Option 3 – IHL as lex specialis to Article 5 ECHR in matters of detention: In cases of norm conflict between the rules of IHL and the ECHR, IHL rules should prevail according to the lex specialis principle. Hence, Article 5(1)’s categorical prohibition on preventive detention would be automatically eliminated in cases of armed conflict and no extraterritorial derogation would be necessary, even if it were possible. One issue under this approach would be whether lex specialis has the same effect in IACs and NIACs. And even if lex specialis would play this role it would not entirely displace Article 5, but only qualify it to the extent necessary to resolve the norm conflict. Some parts of Article 5 could survive, e.g. judicial review of detention.
Option 4 – forget lex specialis, we can still ‘read down’ Article 5 ECHR to achieve a reasonable result: Even if lex specialis is conceptually unable to have the effects the adherents of Option 3 (such as the UK) would want it to have, we can still achieve a similar result by avoiding literal interpretation, focusing on the purpose of the norms, the need to maintain coherence in the international legal system, and the need to achieve a workable, reasonable outcome. The Court could ‘read down’ Article 5 ECHR to its fundamental core, as if it only contained a standard prohibiting arbitrary detention akin to the one in Article 9 ICCPR, a standard that could be satisfied by the applicable rules of IHL, especially in IACs. And again, as in Option 3, any norm conflict between IHL and the ECHR should be minimized as far as it is possible to do so.
All of these options have their strengths and weaknesses, and could be defended more or less reasonably. The choice between them will ultimately depend on policy considerations and value judgments. Note also the inevitable implications that the Court’s approach to the interaction between the ECHR and IHL on matters of detention would have on targeting and the use of lethal force.
Option 1 appeals to a human rights judge’s desire to the right thing, especially in a situation as dodgy in Iraq. But it is also obviously unrealistic and utopian. Coupled with an expansive approach to the ECHR’s extraterritorial application, it would effectively prohibit any European state from engaging in foreign interventions, especially if jus ad bellum considerations are thrown into the mix. A further risk of such an approach would be that states would simply ignore the European Court, potentially leading to a cascade effect of non-compliance and damaging the ECHR system as a whole.
Option 2 is the one that I would personally prefer. Its basic premise is that human rights treaties already contain a mechanism for dealing with conflicts between IHL and IHRL – derogations, and that it’s the states’ own fault if they choose not to use this mechanism. However, precisely because states have not used extraterritorial derogations, the consequence of this approach would be that practically every single IHL-authorized security detention by the UK in Iraq would have been unlawful under the ECHR, and the same would likely apply to all other European states in Iraq or Afghanistan. The utopian risks of Option 1 are hence diminished, but not eliminated. And if Option 2 is taken up it will obviously create a strong incentive for states to derogate in the future.
Option 3 is superficially appealing, but its reliance on the nebulous lex specialis principle renders it conceptually suspect. My intense dislike for that magical Latin formula is well-known and I will not belabour it here. The ICJ has only used it to interpret open standards like an arbitrary deprivation of life in Article 6 ICCPR; it has never been used to depart from categorical provisions like the ones found in Articles 2 and 5 ECHR which contain no ‘window’ through which IHL can enter. It is imported from domestic law, where it rests on entirely different assumptions about the law-making process, and where it is coupled with the lex posterior principle and even then used extremely rarely. It is not found in the VCLT nor in any other formal source of international law. So I say hooey, lex specialis, hooey. In fact, Option 3 is really no different from Option 4, except that it is couched in obfuscating, oh-so-lawyerly language.
Option 4, for its part, is at least transparent – Article 5 should be departed from because the result of applying it to armed conflict situation is seen by the interpreter as too rigid and unreasonable (and even more so if extraterritorial derogations were not on the table). But its very openness and honesty are also its problem, as not every lawyer is a pragmatist who would appreciate its appeal. It seems to stray from permissible interpretation to impermissible amendment, entailing a departure from the otherwise perfectly clear language of Article 5. And if the Court could do that, it can do anything.
So let’s see what happens! The Court could of course always come up with something entirely different, and I am certainly not making any predictions.
In other news, the Court also recently heard Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, two cases dealing with rendition of Al-Qaeda detainees and their treatment in CIA black sites in Poland. This is a nice follow-up to the El-Masri v. Macedonia case, and I find it unlikely that the outcome will be any different. The Court also declared inadmissible the application in Azemi v. Serbia, finding that the specific applicant in Kosovo was not within Serbia’s Article 1 jurisdiction, since Serbia lacked effective control over Kosovo after its 1999 withdrawal. Azemi thus follows earlier cases such as Ilascu and Catan where the state lost control over its own territory, and thus jurisdiction, but was considered (somewhat strangely) to continue having some positive obligations. Azemi is notable because the Court finds that no such obligations existed on the facts, unlike in Ilascu and Catan, and because of the at times truly inspired way in which the Court avoids the issue of whether Kosovo remained Serbia’s territory after it had proclaimed independence, even though territorial title was the basis of the Ilascu positive obligation, while acknowledging the reality on the ground.