The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.
A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.
The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.
Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.
Second, in its assessment of the merits, and contrary to the approach advocated by the UK government, the Grand Chamber does not rely on the notion of lex specialis. Instead, its reasoning rests on two tools of treaty interpretation under Article 31(3) of the Vienna Convention on the Law of Treaties (VCLT), namely subsequent practice (Article 31(3)(b)) and other relevant rules of international law applicable in the relations between the parties (Article 31(3)(c)) (paras 100-102). The notion of lex specialis has in many ways confused the whole debate on IHL and IHRL, with many seeing it as something approaching a standalone principle with normative content that is capable of indicating which norm is special and which general. In reality, the notion of lex specialis is just a useful shorthand for one particular factor (among many) that we may take into account when interpreting a treaty; it most certainly does not answer the question on its own of which rule governs. The Court’s reliance on subsequent practice and Article 31(3)(c) helps to move beyond the often obfuscatory invocation of lex specialis.
Third, and related to the previous point, the Court does not simply submit Article 5 ECHR to the more permissive treaty standards in the Third and Fourth Geneva Conventions. Rather, its approach to this relationship is more symbiotic. This is seen in its interpretation of the requirement of a ‘court’ in Article 5(4), where it states that, whilst this could be read as permitting use of a ‘competent body’ as provided for under Articles 43 and 78 of the Fourth Geneva Convention, that body ‘should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness’ (para 106). By virtue of the continued operation of Article 5(4) in the background, the Court required of the ‘competent body’ more than the text of Article 43 of the Fourth Geneva Convention itself does.
Finally, the Court makes clear that its reasoning is limited to international armed conflicts, where IHL treaty law is relatively detailed; the pure human rights approach taken in Al-Jedda is thus preserved, and the judgment similarly seems compatible with the recent UK High Court case of Serdar Mohammed v Ministry of Defence, both of which concerned non-international armed conflicts.
Let us now turn to some of the deficiencies in the Court’s reasoning. In particular, whilst its reliance on Articles 31(3)(b) and (c) VCLT over the lex specialis maxim did, as noted, encourage greater clarity, it is not clear that either subsequent practice or Article 31(3)(c) quite so readily points to the conclusion at which the Court arrived. Regarding subsequent practice, the Court took the view that the absence of derogations from Article 5 ECHR by States when detaining in the context of international armed conflicts indicates that that provision is not considered to exclude detentions pursuant to the Third and Fourth Geneva Conventions. However, such practice does not necessarily support the view that Article 5 ECHR must yield to IHL. Derogations may not be taken for any number of reasons. In their partly dissenting opinion, Judges Spano, Nicolaou, Bianku and Kalaydjieva note that the absence of derogations in such situations is underpinned more by States’ continued attempts to avoid conceding the extraterritoriality of the Convention than any view as to the relationship between IHL and IHRL (para 12). Indeed, if the Court draws such a clear conclusion from this subsequent practice, why should we not similarly draw the conclusion that the absence of derogations in the extra-territorial context confirms the non-applicability of the ECHR in all such situations? The Court has clearly rejected this view, and it is not clear why it places so much emphasis on this practice here.
There is also a more general question about the propriety of using subsequent practice in a manner that effectively modifies treaty obligations. The Court refers to its previous case-law where it has accepted that the Convention can be modified by ‘a consistent practice on the part of the High Contracting Parties’ (para 101). I am of the view that subsequent practice can, in certain circumstances,have such an effect, where that practice clearly indicates a common intention on the part of the States parties. However, there is much debate on this issue, and one might have expected the Court to consider some contrary views (see the discussion in the Second Report of Special Rapporteur Georg Nolte, 65th Sess, ILC 2014, paras 117-142). Indeed, José Alvarez notes that, ‘where a treaty creates a third party beneficiary … as in the case of human rights treaties … the capacity for the states parties to modify their treaty through practice faces additional constraints’ (G Nolte (ed), Treaties and Subsequent Practice (OUP 2013), p 126). The Court’s failure properly to engage with this important point of general international law risks undermining its reliance on subsequent practice in this manner.
Regarding the Court’s use of Article 31(3)(c), it might similarly be argued that one should not be too quick to assume that this provision provides all the answers. Indeed, it is not uncommon for States to have adopted inconsistent obligations under different treaties. In such instances, it will often be a political question as to which obligation will be followed and which breached. The law of State responsibility then indicates what consequences flow from the breach. It is not immediately clear why, in the case of IHL and IHRL, it should be different. Operational practicalities certainly suggest the need for reconciliation, but at what point do we decide that reconciliation is not possible, thereby requiring derogation? Just as reliance on the lex specialis maxim cannot determine finally which rule prevails, so pointing to Article 31(3)(c) is not the end of the matter. One must then consider which rules are ‘relevant’, what weight such rules should have in interpreting the particular treaty provision and why (see, e.g., Paparinskis). Indeed, the limits of Article 31(3)(c) have been emphasised with regard to other areas of international law. In her separate opinion in Oil Platforms, Judge Higgins criticised the majority on the basis that, rather than interpreting the relevant treaty provision, they had displaced the applicable law by relying on Article 31(3)(c) (paras 45–9). The symbiotic approach taken by the Court in Hassan goes some way to pre-empting this line of critique, yet it remains unclear why the Court chose the particular approach it did. Indeed, international criminal law has elaborated the requirements in Articles 42 and 43 of the Fourth Geneva Convention. Why did the Court not similarly incorporate these?
Finally, a number of questions are left open by the Court’s judgment. For example, whilst the Court considers that Article 5(4) might be read down so as to allow for a ‘competent body’ under Article 43 of the Fourth Geneva Convention to review internment, it is unclear whether it would take the same approach to the Third Geneva Convention, which provides no review of the legality or necessity of combatant internment. Given the weight the Court seems to place on the existence of review procedures for civilian internees under the Fourth Geneva Convention (para 106), it seems far less likely that it would allow a State to rely on the Third Geneva Convention to justify the absence of any form of review of combatant internment outside the context of derogation. (The different approach under the Third Geneva Convention was recognised, with concern, in the partly dissenting opinion (para 5)). The Court might have gone some way to addressing such unanswered questions if its reasoning, particularly with regard to its invocation of Article 31(3)(c), had been more detailed.
Hassan reflects an extremely important decision in the ECtHR’s history. Whilst rejecting the UK’s principal argument that IHL excluded jurisdiction arising under Article 1 ECHR, it interpreted the requirements of Article 5 so as to make room for the more permissive regimes under that body of law. The Court is right to interpret Convention rights in a contextual manner. However, its reasoning, although an improvement on abstract statements of lex specialis, leaves a number of questions unanswered. One is also left with the question of whether the alternative approach, of demanding the Contracting Parties to derogate in order to access rights under IHL that the text of the Convention does not appear to permit, might eventually have been accepted by States and created a more robust mechanism for protecting rights.