Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.
(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).
The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).
In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.
(2) With regard to the relationship between the Convention and IHL, the most striking features of the judgment are its refusal to apply (or even mention) the lex specialis principle, and the fact that it is confined to situations of international armed conflict only. The parameters of the applicability of the Convention to non-international armed conflicts (now much more common, and trickier by far, than IACs) are thus left wide open. We have no way of knowing whether the Court will use the same strong interpretative approach in NIACs as it has done with IACs. But we can safely say that if the Court didn’t use lex specialis for IACs, it won’t use lex specialis for NIACs either. And as Lawrence rightly noted, because it is confined to IACs Hassan is also perfectly consistent with Serdar Mohammed.
In Hassan we thus have yet another incremental decision, with the Court deciding only what it absolutely needed to on the facts of the case, but providing only limited guidance for the future. This caution makes perfect sense from the standpoint of the Court itself, but it is of course of little help to those who have to deal with operational questions on a daily basis.
(3) So what of the interpretative approach that the Court has taken? Instead of using a rule of norm conflict resolution external to the Convention such as (arguably) lex specialis, the Court effectively chose to ‘read down’ the categorical text of Article 5 ECHR, which would prohibit recourse to preventive security detention, and read into it an internment in IAC exception. Whether one agrees with this approach or not, I don’t think it’s particularly surprising (indeed, I predicted that the Court might resort precisely to such a reading down here and here.)
(4) It is good that the Court did not rely on lex specialis, an often confusing and misleading principle. Whether the Court should have read down Article 5 of the Convention as it did, however, is debatable. First, the Court justified its reading down by reference to Article 31(3)(b) VCLT on subsequent state practice, but this reliance is formally flawed for a number reasons, as ably explained in the dissent and by Lawrence in his post. Second, the Court’s re-interpretation of Article 5 is tantamount to its amendment, and puts some states that have started to criticize the Court for an extravagant approach to interpretation (e.g. the UK) in a somewhat curious position – approval for the result in Hassan (which the UK did win, even if not in the way it wanted to win) may also be seen as approval for the Court’s own interpretative self-empowerment. Third, the Court had an alternative – it could have said that interpretation of Article 5 in line with IHL can only go up to a certain point, beyond which a derogation from Article 5 would be necessary. This approach could be said to be more faithful to the text of Article 15 ECHR itself, which speaks of derogations in cases of war and specifically derogations from the right to life in respect of deaths resulting from lawful acts of war.
Clearly, the Court chose to do what it did because the majority thought that the alternative would lead to practically infeasible and unreasonable results, bearing in mind the political context of the day. Article 31(3)(b) is merely a legalistic fig leaf for the policy choice that the Court made (rightly or wrongly).
(5) Now, some might say that the Court’s approach is just lex specialis but without the Latin. This would be a serious misunderstanding. For example, the Court’s consideration of the problem of judicial control of detention was brief, but more nuanced than lex specialis. Nor did the Court say anything about how far its reading down of the Convention would go with respect to other rights in the Convention, above all the right to life, while again limiting its reasoning to IACs only. The Court doesn’t seem to see the content of the ECHR in armed conflict – even IAC – as simply reducible to only those protections granted by IHL.
(6) Finally, while the Court’s approach renders extraterritorial derogations unnecessary or less necessary in IACs, the Court does not exclude the possibility that such derogations can be made. And crucially they may be most relevant in NIACs. (For more on the question of extraterritorial derogations, see here).
All in all, I think it is safe to say that while Hassan solved some problems, it also left many questions open. We shall see what future cases will bring. Keep an eye on the forthcoming Jaloud v. Netherlands case, which may prove to be very interesting on questions of extraterritoriality and the flexibility of the Article 2 obligation to investigate, and on what will happen to Serdar Mohammed on appeal.