ECtHR considers the UK’s extra-territorial jurisdiction over Iraqi detainee

The European Court of Human Rights has delivered its Grand Chamber judgement in Hassan v United Kingdom, which considered the detention of Tarek Hassan by the British armed forces in Iraq in April 2003.

The application was brought by Mr. Khadim Resaan Hassan of behalf of his brother, Tarek, who was allegedly detained by the British army at Camp Bucca and subsequently found dead.  Khadim Hassan was a member of the Ba’ath Party who had gone into hiding when British forces began arresting high ranking party officials.  British forces entered the applicant’s property to arrest him, but instead arrested Tarek. The UK contended that Tarek was arrested as a suspected combatant, but was released on the 12th of May 2003 when investigations determined otherwise.  In September 2003, Tarek’s body was found approximately 700 kilometers from Camp Bucca.  The body was purported to show signs of torture and execution, on the basis of which Hassan brought actions under Article 2 (right to life), Article 3 (right against torture and inhumane and degrading treatment), Article 5 (1-4) (right to liberty and security of person) on the grounds that Tarek’s arrest and detention was arbitrary and not in accordance with the law, and Article 5 for the State’s failure to investigate Tarek’s detention, treatment and death.

The Court found that the alleged violations of Articles 2 and 3 were inadmissible due to lack of evidence establishing that Tarek’s death and ill-treatment occurred while in British detention.  The Court further decided that since Tarek was arrested while armed with an AK-47, he was “either a person who should be detained as a prisoner of war or whose internment had been necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions.”

The Court did not, however, accept the UK’s argument that the British army was operating outside the jurisdiction of the European Convention on Human Rights due to Camp Bucca being a facility run by the United States.  The Court ruled that it was clear that Tarek was under British supervision while in detention, thereby making it the responsibility of the UK to protect his rights and freedoms under the Convention.

Of note was the third party amicus curiae intervention by the Human Rights Centre of the University of Essex, which proved particularly important in the Court’s application of standards of the Convention abroad in wartime situations where international humanitarian law standards would normally apply.

Click here for full judgment in Hassan v United Kingdom.

Click here and here to read further analysis of the case.

Share

Resources

Sustaining Partners