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Towards a Symbiosis of International Human Rights Law

and International Humanitarian Law in the Protection of

Human Rights?

The applicability and application of human rights law,

in particular before the European Court of Human Rights,

with regard to armed conflicts.

MASTER THESIS CHRISTIANE DE NEVE

9 JULY 2018

UNDER SUPERVISION OF MW. DR. ROSANNE VAN ALEBEEK

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Lorsqu’il est en présence de deux accords de

volontés divergentes, il doit être tout naturellement

porté a rechercher leur coordination plutôt qu’à

consacrer à leur antagonisme.

Charles Rousseau

1

Table of Contents

1 Rousseau, Ch., De la compatibilité des normes juridiques contradictoires dans l’ordre international, Revu

Générale de Droit International Public (RGDIP), 1932, vol. 39, p. 153. “When there are two agreements of divergent wills, he must naturally be inclined to seek their co-ordination rather than to devote himself to their antagonism.”

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Abstract 5

1. Preface 7

1.1. Introduction 7

1.2. Research question and design 8

2. A Bird’s Eye View on International Humanitarian Law and International Human Rights law

9

2.1. Introduction 9

2.2. Similarities and differences 10

2.2.1. Similarities 10

2.2.2. Differences 10

3. International Humanitarian Law and International Human Rights Law: Interrelationship 13 3.1. Introduction 13 3.2. Lex specialis 14 3.3. Complementarity 16 3.3.1. Introduction 16 3.3.2. Systemic integration 17

3.3.3. Systemic integration of international humanitarian law and international human rights law

18

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4. The Relation between International Humanitarian Law and International Human Rights in the jurisprudence of the European Court of Human Rights

4.1. Introduction

4.2. Systemic integration at the European Court of Human Rights

20 20

4.3. Pre-Hassan jurisprudence 21

4.3.1. Early development 21

4.3.2. The lead up to Hassan 23

4.4. Hassan v. the United Kingdom 25

4.4.1. Introduction 4.4.2. Facts of the case

25 25

4.4.3. Claim of the applicant 26

4.4.4. Arguments of the United Kingdom 27

4.4.5. Judgment 28

4.4.6. Dissenting opinion 30

5. The Hassan case Analyzed 32

5.1. Introduction 32

5.2. Derogation 32

5.3. Interpretation 33

5.3.1. Subsequent practice (Article 31(3)(b) VCLT) 33

5.3.2. Systemic integration (Article 31(3)(c) VCLT) 35

5.4. Preliminary conclusion 37

6. Conclusion 40

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Abstract

Towards a symbiosis of international humanitarian law and international human rights law? What about a concurrent applicability of both bodies of law in armed conflict situations?

If the provisions of two bodies of law are mutually exclusive and there appears to be no harmony, there seems to be no other choice than to adopt either one, the principle of lex

specialis. The European Court of Human Rights (ECHR) decided otherwise in its judgment in Hassan v. the United Kingdom and chose the method of systemic integration laid down in

Article 31(3)(c) Vienna Convention on the Law of Treaties (VCLT). The disputed provisions in Hassan appear to be mutually exclusive. Where Article 5 of the Convention on Human Rights precludes preventive detention for security reasons, this is allowed – under circumstances – by the articles 43 and 78 of the Fourth Geneva Convention.

It is debatable whether there is room for reconciliation between international humanitarian law and international human rights law in this respect. In Hassan the European Court of Human Rights has taken the debate of on this issue a step further, since the Court stretched with its judgement the scope of the Convention, in cases of extraterritorial armed conflict, into the realm of international humanitarian law.

In this thesis it will be established whether it possible to interpret Article 5 ECHR, in the absence of a formal derogation under Article 15 ECHR, in accordance with the principles of international humanitarian law. The Court answered in the affirmative. However, although the Conventions must be interpreted against the background of the provisions of international humanitarian law, the safeguards under the Convention must continue to apply and it is questionable whether or not the Court, in applying the technique of systematic integration overstepped its boundaries and attempted to reconcile the irreconcilable.

To answer the derogation-question, the Court extensively resorted to Article 31(3)(b-c) VCLT. Taken into account must be both subsequent practice, a certain degree of practice at the side of the parties demonstrating their intention to interpret a treaty in a certain way, as well as any relevant rules of international law applicable in the relations between the parties. By this way, the Court passed over the derogation principle of Article 15 ECHR, arguing that the Contracting States never resort to this provision in situations of international armed conflict, and that this amounts to a consistent state practice for the purpose of Article 31(3)(b) VCLT.

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Concerning the topic of systemic integration, the Court argued that the application of Article 5 ECHR can be harmonized with Articles 43 and 78 of the Fourth Geneva Convention. It will however be seen that ECHR and IHL are mutually exclusive on this issue and attempts of harmonious interpretation should be aborted unless Article 5 ECHR is read down to its core principle: the protection of the individual from arbitrariness while deprived of his liberty.

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Chapter 1 – Preface

1.1. Introduction

International human rights law (protection of individuals against abusive power) and international humanitarian law (dealing with conduct of the parties in an armed conflict) are two distinct branches of international law. However, in practice these two bodies of law interrelate and interact. Human rights law, with its focus on rights of individuals and the right to a remedy, complements international humanitarian law, which is much more aimed at the protection of the interests of individuals through the rights and obligations of states. This triggers the question as to the applicability of international human rights law (further: also IHRL) in armed conflict, and as to the influence of the concurrent applicability of international humanitarian law (further: also IHL) on the scope of protection of individuals in international human rights law.

In recent years several cases have come before the European Court of Human Rights (further: the ECtHR or the Court), stemming from armed conflict situations, both internal and international, with regard to the extraterritorial application of the European Convention on Human Rights2 (further also: the Convention or ECHR). For example, in Hassan v. the United Kingdom3 the EChtHR had to decide whether, in the absence of a derogation in an

international armed conflict context, Article 5 of the Convention could be interpreted in accordance with the principles of IHL, more specific the Articles 43 and 78 of the Fourth Geneva Convention4. The Court underlined that “even in situations of international armed

conflict, the safeguards under the Convention continue to apply”, but it also conceded that the safeguards of the Convention have to be “interpreted against the background of the provisions of international humanitarian law.”5 Four judges issued a powerful dissent. They pointed out

that the Court overstretched the limits of harmonious interpretation since there is no scope to accommodate the powers of internment in IHL in Article 5 ECHR.6

2 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as

amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

3 Hassan v. the United Kingdom [GC], no. 29750/09, European Court of Human Rights, 16 September 2014. 4 International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in

Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

5 Hassan, § 104.

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1.2. Research question and design

Against this backdrop, I will address the following: To what extent are international humanitarian law and international human rights law concurrently applicable in armed conflict situations; what is the approach of the ECtHR with respect to the relationship between the ECHR and international humanitarian law with regard to armed conflicts; and does this approach add new elements to the doctrinal debate on that relationship as it stands now? This thesis sets out to critically analyze the approach of the European Court of Human Rights. Is the Court overstretching the concept of harmonious interpretation in its Hassan judgment as the dissenting judges posited?

In chapter 2, I will provide a bird’s eyes view on IHL and IHRL. This will be followed by an explanation of the similarities and differences between both bodies of law. In chapter 3, I will set out the interrelationship between IHL and IHRL with regard to the different opinions relating to the nature of this relationship. Chapter 4 is for addressing the approach of the ECtHR concerning the interrelationship in cases of armed conflict. Specific attention will be given to the Hassan case, which presents a systematic approach on international humanitarian law and a potential unavoidable conflict of norms. In chapter 5, I will analyze the Hassan judgment in the light of the concept of harmonious interpretation, extraterritoriality and derogation. Chapter 6 will contain my conclusions.

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Chapter 2 - A Bird’s Eye View on International Humanitarian

Law and International Human Rights Law

2.1. Introduction

Initially international law was created by, between, and for states and its main concept concerned state sovereignty and voluntarism. However, with regard to international human rights law, states do have to respect human rights not primarily à-vis other states, but vis-à-vis individuals under their jurisdiction.7 By becoming parties to international human rights

treaties, states accept that they have to respect, to protect and to fulfil human rights.8

States that have ratified the ECHR agree not to violate the human rights listed in the Convention. However, the ECHR recognizes that in situations of extreme crisis states might not be capable to achieve all of their Convention obligations. According to Article 15(1) ECHR, “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” This article provides the power to derogate from Convention obligations, with the effect that some of these obligations are temporarily suspended. Derogation however is only allowed in the limited circumstances that are described in paragraph 1.

Some rights are considered to be of such importance that derogation is not possible, such as the right to life, excepting deaths resulting from lawful acts of war, (Article 2), freedom from torture or inhuman or degrading treatment or punishment (Article 3); freedom from slavery and forced labor (Article 4(1)) and the freedom from retrospective criminal liability (Article 7).9 These rights can never be suspended and are guaranteed at all times,

also in situations of emergency. Unlike IHRL, under IHL derogations are not permitted at all, since this body of law was specifically conceived for situations of war.10

7 Mégret, F., Nature of Obligations, in: Moeckli, D., Shah, S. & S. Sivakumaran (eds.), International Human

Rights Law, Oxford University Press, 2010, p. 125, 127.

8 The duty to respect entails the negative obligation for states not to take measures that will result in the violation

of a specific right, either through their organs or by their agents. In protecting individuals from human rights abuses, states must proactively ensure that they will not suffer human rights abuses by third parties. The obligation to fulfil concerns a positive obligation to act (videlicet to protect). See: Mégret (2010), p. 130-131.

9 Art. 15(2) ECHR. Protocol 6 tot the European Convention for the Protection of Human Rights and

Fundamental Freedoms concerning the Abolition of the Death Penalty9 also prohibits derogation under Article

15 ECHR.

10 Iguyovwe, R., The Inter-play between International Humanitarian Law and International Human Rights Law,

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2.2. Similarities and differences

2.2.1. Similarities

IHL and IHRL are considered to share common humanist ideals of the protection of the dignity and integrity of the individual.11 It is therefore not surprising that, while very different

in formulation, the essence of some of the rules is similar, if not identical. Both bodies of law seek to protect the individual from abusive behavior, whether by state authorities when it comes to human rights law, or as a party in a conflict regarding humanitarian law.12 Both do

not only try to protect human life, but prohibit discrimination as well as torture or cruel treatment. And IHL and IHRL also both endorse rights for those involved in criminal justice process, provisions for minorities such as women and children.13 It therefore can be argued

that IHL and IHRL are not diametrically opposed14, and are mutually supportive regimes.15

2.2.2. Differences

However there are also some noteworthy, although not exhaustively enumerated, differences. For one, IHRL is considered to be generally applicable and protecting individuals at all times, both in war and peace, whilst international humanitarian law is only applicable during times of armed conflict.16 Also worth mentioning is the fact that many provisions of IHL apply to a

state’s extraterritorial conduct; it also concerns behavior on the territory of an opposing state. IHRL on the other hand was not primarily designed to apply extraterritorially, although there are circumstances in which there is extraterritorial applicability of human rights.17

And, while international human rights law is primarily concerned with the way a state treats those within its territory, international humanitarian law regulates the conduct of parties during armed conflicts so as to diminish the effect of warfare.18 The goal of humanitarian law

11 Iguyovwe (2008), p. 750.

12 Droege, C., The interplay between International Humanitarian Law and International Human Rights law in

situations of Armed Conflict, Israel Law Review, 2007, vol. 40, p. 341.

13 Advisory service on international humanitarian law, International Humanitarian Law and International

Human Rights law - Similarities and differences, International Committee of the Red Cross, January 2003.

14 Stephens, D., Human Rights and Armed Conflict – The Advisory Opinion of the International Court of Justice

in the Nuclear Weapons Case, Yale Human Rights & Development Journal, 2001, vol. 4, p. 13.

15 Detter, I., The Law of War, Cambridge University Press, 2000, p. 161.

16 International Committee of the Red Cross, What is International Humanitarian Law?, Advisory Service on

International Humanitarian Law, July 2004, p. 1-2.

17 Iguyovwe (2008), p. 753. The question of extraterritoriality will be further elaborated in chapter 3 and 4. 18 ICTY: Prosecutor v Kunarac, Kovac, and Vukovic, Case no. IT-96-23-T and IT-96-23/I, Trial Chamber II,

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is to protect particularly vulnerable groups, while human rights law aims to protect individuals from arbitrary behavior by their governments.19

Both bodies of law differ also in procedural aspects. Some question in this respect whether individuals have substantive rights under IHL at all, since under international law the traditional position is that only states are subject of international law, with full rights and obligations.20 Peters argues that, according to the traditional view, individuals are

beneficiaries but not holders of claims; they are objects of protection but not subjects.21 She

also points to both the Third and Fourth 1949 Geneva Conventions (Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention))22 and Additional Protocol I to the Convention (Protocol Additional to the

Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts)23 which “expressly stipulate state obligations and do not cloth

them in the language of rights.” 24

All the provision therein are formulated without a reference to the rights of protected persons, but expressed as prohibitions addressed to states. Also in recent literature the idea that the law of armed conflict does not assign rights to individuals, but consists almost exclusively of obligations between states, withstand. In this respect Provost argues that the protection given to individuals would not be in the nature of rights, but more in the nature of standards of treatment.25

Nevertheless, some norms explicitly refer to rights, claims and guarantees. Both the Third and Fourth Geneva Conventions and both Additional Protocols to the Conventions do expressly mention these rights with regard to the individual.26 According to Article 13 of the

Fourth Geneva Convention for example, prisoners of war must at all times be humanely treated. And Article 8 of the same Convention specifically states that “Protected persons may

19 Gasser, H-P., International humanitarian law and the protection of war victims, Extract from International

Humanitarian Law: an introduction, Paul Haupt Publishers, 1993. Updated by the author in November 1998.

20 Chiara-Gillard, E., Reparations for violations of International Humanitarian Law, International Review of the

Red Cross, 2003, vol. 85, no. 851, p. 536.

21 Peters, A., Beyond Human Rights: The Legal Status of the Individual in International Law, Cambridge

University Press, 2016, p. 194.

22 International Committee of the Red Cross, Geneva Convention Relative to the Treatment of Prisoners of War

(Third Geneva Convention), 12 August 1949, 75 UNTS 135. And: International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention),

12 August 1949, 75 UNTS 287.

23 International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949,

relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.

24 Peters (2006), supra nt. 23.

25 Provost, R., International Human Rights and Humanitarian Law, Cambridge University Press, 2002, p. 33. 26 Peters (2006), p. 195-196.

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in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.”27 But even if individuals could be said to have rights under international

humanitarian law, which is inter alia discussed by Lopes and Quénivet28, Heintze29, and

Hill-Cawthorne30, they have difficulties to exercise their rights under that law, since there is no

international mechanism that allows them to proclaim those rights.31 Where most human

rights treaties do have some form of an individual complaint mechanism, IHL follows an inter-state law system. This means that an individual does not have locus standi before international organs.32

27 For the whole list: Article 6(1), Article 7, Article 14(1), Article 50(2), Article 54(2), Article 78(1) and (2),

Article 84(2), Article 96(4), Article 105(1), Article 106, Article 113(1), Article 129(4), and Article 130 of The Third Geneva Convention; Article 5(3), Article 7(1), Article 8, Article 27(1), Article 35(1) and (2), Article 38, Article 40(4), Article 43(1), Article 48, Article 52(1), Article 72(1), Article 73, Article 75(1), Article 76(3), (6), and (7), Article 78(2), Article 80, Article 101(1) and (2), Article 146(4) and Article 147 of the Fourth Geneva Convention; Article 11(5), Article 32, Article 44(2), (5), and (6), Article 45, Article 56(3), Article 79(2), and Article 85(4)(e) of Additional Protocol I; Article 4(1), Article 5(1)(e), Article 6(2)(a) and (e), and Article 6(3) of Additional Protocol II.

28 Lopes, C. and N. Quénivet, Individuals as Subjects of International Humanitarian Law and Human Rights

Law, in: Arnold, R. and N. Quénivet (eds.), International Humanitarian Law and Human Rights Law Towards a New Merger in International Law, Brill, 2008, p. 207-244.

29 Heintze, H-J., On the relationship between human rights law protection and international humanitarian law,

International Review of the Red Cross, 2004, vol. 86, no. 856.

30 Hill-Cawthorne, L., Rights under International Humanitarian Law, European Journal of International Law,

vol. 28, issue 4, 2017.

31 Zegveld. L., Remedies for Victims of Violations of International Humanitarian Law, International Review of

the Red Cross, 2003, no. 851, p. 514.

32 Eriksson, M., Reproductive freedom: in the context of international Human Rights and Humanitarian Law,

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Chapter 3 – International Humanitarian Law and

International Human Rights Law: Interrelationship

3.1. Introduction

Where there was once just general international law, IHRL and IHL were considered separate, distinct and opposed since they emerged and developed independently.33 Nevertheless,

already in 1868 Bluntschli argued that there are natural human rights that are to be recognized in times of war and in peacetime.34 As soon as both bodies of laws became fully established,

the question as to their interrelation and interaction engaged the minds of scholars, since they both tried to protect the individual against abusive power. In the Resolution on Basic principles for the protection of civilian populations in armed conflict35 for example, the

United Nations General Assembly declared that fundamental human rights, as accepted in international law continue to apply in armed conflict situations.36 Also, provisions of Protocol

I and Protocol II (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts)37 to the Geneva

Conventions acknowledge the existences of human rights norms; Article 72 Protocol I for example recognizes that besides the rules expressed in the Protocol, which deal with the protection of civilian and civilian objects, there are other applicable rules relating to the protection of fundamental human rights during international armed conflict. The Commentary on the Additional Protocols of 8 June to the Geneva Conventions of 12 August 194938 invoke

human rights law as a source of such applicable rules.39

The greater awareness of the relevance of IHL to the protection of people in armed conflict, coupled with an increasing recognition that IHRL in certain circumstances imposes obligations on states extraterritorially means that both these areas of law now have much greater international profile and are regularly being used at the same time.40

33 Draper, G., Humanitarian Law and Human Rights, Acta Juridica, 1979, p. 199.

34 Bluntschli, J. Das Moderne Völkerrecht der civilisierten Staaten, C.H. Beck’sche buchhandlung, 1868, p. 529. 35 UN General Assembly, Basic principles for the protection of civilian populations in armed conflicts, 9

December 1970, A/RES/2675.

36 A/RES/2675, affirmation 1.

37 International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125

UNTS 609.

38 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the

Geneva Conventions of 12 August 1949,

39 Commentary on the Additional Protocols, § 2927-2928.

40 Doswald-Beck, L. & S. Vité, International Humanitarian Law and Human Rights Law, International Review

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As mentioned in the previous chapter, initially IHRL has been interpreted primarily but not exclusively in territorial terms. However, with an increasing interest in extraterritorial application of human rights law, the topic of the interrelationship became more and more pressing since the extraterritorial application of IHRL opens the possibility for the cumulative application of both IHRL and IHL.41 That triggers the question which principles should be

used in order to decide a potential conflict; a discussion that knows different positions. If international human rights law applies in armed conflict, does it means that at all times international humanitarian law is the lex specialis, or is it possible to interpret these bodies of law harmoniously? Are both sets of law complementary or are there instances where IHL and IHRL are incompatible and should the lex specialis principle be used?

3.2. Lex specialis

To start, with the latter, this concept, more specific lex specialis derogate legi generali, concern the relationship between and can be described as prioritizing special law over general law.42 The lex specialis rule is considered “a generally accepted technique of interpretation

and conflict resolution in international law” and it “suggests that whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific.”43 Precedence falls on the special provision, the rule with the more precisely

delimited scope of application.44 The specific rule will be read against the background of the

general rule.45 This idea was not new. It was already argued by Grotius that the special rule

should reign over the general one, since it is more effective: “Among agreements which are equal…that should be given preference which is most specific and approaches most nearly to the subject in hand, for special provisions are ordinarily more effective than those that are general.”46

The expanding scope of international law, with its emergence of “a number of closely integrated sets of rules of international law pertaining to particular subject-areas such as

41 The extraterritorial application of the ECHR will be further elaborated in § 4.2.2. 42 Droege (2007), p. 337.

43ILC Study Group on Fragmentation (2006b), Conclusions of the work of the Study Group on the

Fragmentation of International Law: Difficulties arising from the Diversification and Expansion on International Law, ILC Report 2006, UN Doc. A/61/10, par. 251(b)(5), p. 178.

44ILC Study Group on Fragmentation (2006a), Fragmentation of International Law: Difficulties Arising from the

Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by M. Koskenniemi, A/CN/.4/L.682, 13 April 2006, § 57, p. 35.

45 Mus, J., Conflicts between Treaties in International Law, Netherlands International Law Review, 1998, p. 218. 46 Grotius, De Jure belli ac pacis. Libri Tres, Book II Sect. XXIX.

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human rights, the environment (…) and so on”, has sometimes led to conflicts “between these specialized sets of rules and general law, as well as between different sets of specialized rules.”47 However, it is not always easy to distinguish what is general and what is particular48,

and the question of how to identify the special rule is not settled yet.49 Besides, also the

question remains whether IHL, as opposed to IHRL, always will provide the special rule in times of armed conflict, or whether the determination which rule is most specific must be made on a norm by norm and situation by situation basis.50

In 1996 the International Court of Justice (further: also the Court or ICJ) dealt with the relationship between IHL and IHRL in its Legality of the Threat or Use of Nuclear Weapons

Advisory Opinion.51 The Court had to rule on the applicability of human rights in a situation

of armed conflict, and a choice had to be made between the two different sets of rules. It was argued that nuclear weapons violated the right to life as laid down in Article 6 of the International Covenant on Civil and Political Rights (further: ICCPR).52 The Court observed

that the protection of the ICCPR “does not cease in times of war, except by operation of art. 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision.”53

The Court continued: “However, the test of what is an arbitrary deprivation of life has to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”54 So, the Court carefully pointed out

that human rights law and that humanitarian law only affected one (albeit important) aspect, the assessment of arbitrariness. Humanitarian law as lex specialis did not suggest that human rights were abolished in war.55 This notion was repeated in the Advisory Opinion Concerning the Legal Consequences of the Construction of Wall in the Occupied Palestinian Territory.56

47 Koskenniemi, M., Study on the Function and Scope of the Lex Specialis Rule and the Question of

“Self-Contained Regimes: an outline”, UN Doc. ILC(LVI)/SG/FIL/CRD.1/Add.1, 2004, p. 1.

48 ILC Study Group on Fragmentation (2006a), § 58, p. 38.

49 Herik, L. van den & H. Duffy, Human Rights Bodies and International Humanitarian Law: Common but

different approaches, in: Buckley, C., Donald, A. & Ph. Leach (eds), Towards Convergence in International Human Rights Law: Approaches of regional and international systems, Brill Nijhoff, 2016, p. 370.

50 Duffy, H., Harmony or conflict? The interplay between human rights and humanitarian law in the fight

against terrorism, in: Herik, L. van den & N. Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges, Cambridge University Press, 2013, p. 507-508.

51 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, International Court

of Justice (ICJ), 8 July 1996.

52 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United

Nations, Treaty Series, vol. 999, p. 171.

53 Nuclear Weapons, § 25. 54 Nuclear Weapons, supra nt. 55.

55 ILC Study Group on Fragmentation (2006a), § 104, p. 47.

56 Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian

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The Court stated: “As regards the relationship between international humanitarian law and human rights law”, the Court observed, “there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”57

3.3. Complementarity

3.3.1. Introduction

Some authors felt bolstered by the ICJ judgment in the Nuclear Weapons case.58 And after

examining the principle of systemic integration, it is indeed arguable that the ICJ, although mentioning the lex specialis rule, actually argued complementarity, another principle, contrary to the lex specialis, to describe the relationship between IHL and IHRL as based on the same principles and therefore not contradicting each other but influencing each other mutually.

The before mentioned expanding scope of international law, with its sets of rules of multiple subject-areas is by Koskenniemi referred to as fragmentation of international law59,

was already described in 1953: “law-making treaties are tending to develop in a number of historical, functional and regional groups which are separate from each other and whose mutual relationships are in some respect analogous to those of separate systems of municipal law.”60 The number of treaties on different areas of interests, resulting in fragmentation, have

grown since then.61 Merkouris argues that an increasing fear of fragmentation at both an

institutional as well as normative level could have been attributed to a more frequent use of Article 31(3)(c) VCLT, which lays down the principle of systemic integration.62

57 The Wall, § 106.

58 For example: Bowring, B., Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the

European Court of Human Rights, Journal of Conflict & Security law, 2010, p. 485- 487. See also: Borelli, S., The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship between International Human Rights Law and the Laws of Armed Conflict, in: Pineshi, L. (ed)., General Principles of Law, the Role of the

Judiciary, Springer, 2015, https://ssrn.com/abstract=2575076, p. 8

59 Koskenniemi (2004), p. 1.

60 Jenks, C. The Conflict of Law-Making Treaties, British Year Book of International Law, 1953, vol. 30, p. 403. 61 In the 20th century, about 6,000 multilateral treaties were concluded, around 30 per cent general treaties. See:

Ku, C., Global Governance and the Changing Face of International Law, ACUNS Keynote Paper 2001/2, p. 45.

62 Merkouris, P., Article 31(3)(c) of the VCLT and the Principle of Systemic Integration, thesis submitted for the

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3.3.2. Systemic integration

According to Article 31(1) and (3) of the Vienna Convention on the Law of Treaties63

(further: VCLT), a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Taken into account (together with the context) will be: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.” Article 31(3)(c) VCLT expresses that with regard to treaty interpretation, there shall be taken into account all relevant rules of international law concerning the relation between the parties in the conflict. This is called the principle of systemic integration64 or harmonious interpretation65, and is widely assumed to

reflect customary international law.66

Systemic integration means that all rules of international law must be applied and interpreted against the background of the general principles of international law.67According

to Koskenniemi, in his function as Rapporteur for the International Law Commission, the rationale for this principle is logical. “All treaty provisions receive their force and validity from general law, and set up rights and obligations that exist alongside rights and obligations established by other treaty provisions and rules of customary international law. None of such rights or obligations has any intrinsic priority against the others. The question of their relationship can only be approached through a process of reasoning that makes them appear as parts of some coherent and meaningful whole.”68 Therefore, systemic integration tries to

“harmonize apparently conflicting norms by interpreting them so as to render them compatible.69 According to McLachlan, systemic integration tries to achieve, by way of

interpretation, to harmonize rules of international law. “In this way”, he argues, “the principle

63 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol.

1155, p. 331.

64 See: McLachlan, C., The Principle of Systematic Integration and Article 31(3)(c) of the Vienna Convention,

International and Comparative Law Quarterly, 2005, vol, 54.

65 Both terms are used randomly in this thesis.

66ILC Study Group on Fragmentation (2006a), § 427, p. 215.

67 McNair, The Law of Treaties, Oxford University Press, 1961, p. 466. 68 ILC Study Group on Fragmentation (2006a), § 414, p. 208.

69 ILC Study Group on Fragmentation (2006a), § 411, p. 207. Koskenniemi argues that conflict-resolution and

interpretation cannot be distinguished from each other. “Whether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted. This cannot be stressed too much. Interpretation does not intervene only once it has already been ascertained that there is a conflict. Rules appear to be compatible or in conflict as a result of interpretation.” (§ 412).

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furnishes the interpreter with a master key which enables him, working at a very practical level, to contribute to the broader task of finding an appropriate accommodation between conflicting values and interests in international society, which may be said to be the fundamental task of international law today.”70

3.3.3. Systemic interpretation of international humanitarian law and international human rights law

In international law there is a strong presumption against normative conflicts, which led to the development of the nowadays broadly accepted principle of harmonious interpretation or systemic integration.71 According to Koskenniemi, legal systems, such as IHL and IHRL,

possess rules with greater and lesser generality and specialty. Sometimes they point in separate directions, and if so legal reasoning should establish meaningful relationships between them as to determine whether they could be applied in a mutually supportive way.72

As established, the ICJ used in both the Nuclear Weapons and the Wall case the wording lex specialis. However, the Court’s analysis was that IHRL was not disapplied or displaced during an armed conflict, but instead continued to apply, in parallel with international humanitarian law.73 Therefore, it is arguable that it was not the intention of the

Court that IHL should prevail over international human rights law, but rather that treaties have to be interpreted in the light of the relevant rules of international law. Thus, although the ICJ used the term lex specialis, in reality it advanced, as discussed by inter alia Borelli74 and

d’Aspremont and Tranchez75, harmonious interpretation, since the obligations under IHRL

were interpreted in accordance with IHL. Using the lex specialis rule, one of two conflicting rules is set aside, and that is not what happened in the Nuclear Weapons case. The reasoning of the Court was far more closer to the principle of systemic interpretation. After the Wall case, the ICJ did not even use the wording of lex specialis anymore in deliberating the relationship between IHL and IHRL. For example, in the Armed Activities on the Territory of

the Congo (Democratic Republic of the Congo v. Uganda)76 case, the Court cited the Wall

70 McLachlan (2005), p. 318-319.

71 ILC Study Group on Fragmentation (2006a), § 37-38, p. 25-26. 72 ILC Study Group on Fragmentation (2006a), § 220, p. 114. 73 Borelli (2015), p. 8.

74 Borelli (2015).

75 d'Aspremont, J. and E. Tranchez, The Quest for a Non-Conflictual Coexistence of International Human Rights

Law and Humanitarian Law: Which Role for the Lex Specialis Principle?, in: Kolb, R. and G. Gagglioli (eds.),

Research Handbook on Human Rights and Humanitarian Law, 2013. Available at SSRN:

https://ssrn.com/abstract=2195331.

76 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement,

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case, found that both branches of international law should be taken into consideration,77 but

avoided any reference to the lex specialis principle.

The principle is also not mentioned in General Comment no. 31 of the Human Rights Committee.78 The Committee had to deal with the question whether the ICCPR also applied in

times of armed conflict and concluded that the Covenant also applies in situations of armed conflict to which the rules of IHL are applicable. Both spheres of law are seen as complementary, and not mutually exclusive.79 Also the International Criminal Tribunal for the

Former Yugoslavia (ICTY) held that human rights law and humanitarian law are “mutually complementary and their use for ascertaining each other’s content and scope is both appropriate and inevitable. Because of the similarity between both bodies of law, the recourse to human rights law is “generally a welcome and needed assistance to determine the content of customary international law in the field of humanitarian law.”80

77 Congo v. Uganda, § 216.

78 Human Rights Committee (HRC), General Comment No. 31. Nature of the General Legal Obligation Imposed

on States Parties to the Covenant, 29 March 2004, UN Doc. CCPR/C/21/Rev.1/Add.13.

79 General Comment no. Article 31, § 11.

80 Orakhelashvili, A., The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict,

Parallelism, or Convergence? European Journal of International Law, 2008, vol. 19, no. 1, p. 164, See also:

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Chapter 4 – The Relation between International Humanitarian

Law and International Human Rights Law in the in the

Jurisprudence of the European Court of Human Right

4.1. Introduction

Since the relationship and interplay between IHL and IHRL is complex and controversial, in times of armed conflict they were “not originally meant to come into close contact.”81 The

ECtHR has hold back for a long time to make reference to the possibility of inconsistency between both the Convention and international humanitarian law; and it did not mention the

lex specialis principle.82 The ECtHR was reluctant to recognize IHL in its interpretation of

the Convention. However, as we have seen, gradually the Court was more willing to shift to a more explicit relationship.

4.2. Systemic integration at the European Court of Human Rights

In this respect, as one of the few human rights instruments, the ECtHR made use of the principle of systemic integration.83 Since Golder v. The United Kingdom84, the Court can be

seen as a pioneering tribunal concerned with the importance of interpreting international treaties in the broader context of international law.85 In this case, the ECtHR referred to both

Article 31(3)(c) VCLT and Article 38(1)(c) of the Statute of the International Court of Justice86, when it had to judge whether Article 6 ECHR secures to every individual concerned

the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.87 It was ruled that the rules of international law include general principles of law

recognized by civilized nations.”88 The Court held that the right to access to the civil courts

was such a principle of law, that this could be relied upon in interpreting the meaning of

81 Droege, C., Elective affinities? Human rights and humanitarian law, International review of the Red Cross,

2008, vol. 90, no. 871, p. 548.

82 Borelli (2015), p. 15. 83 McLachlan (2005), p. 293.

84 Golder v. The United Kingdom, no. 4451/70, European Court of Human Rights, 21 February 1975, § 35. 85 Pitea, C., Interpreting the ECHR in the Light of “Other” International Instruments: Systemic Integration of

Fragmentation of Rules on Treaty Interpretation?, in: Boschiero, N., Scovazzi, T., Pitea, C., and C. Ragni (eds),

International Courts and the Development of International Law. Essays in Honor of Prof. Tullio Treves, Draft, pp. 545-559, p. 1.

86 United Nations, Statute of the International Court of Justice, 24 October 1945. 87 Golder, § 27-31.

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Article 6.89 In this line, in Al-Adsani v. the United Kingdom90, Fogerty v. the United Kingdom91 and McElhinny v. Ireland92, the Court held that it should interpret the right of

access to Court under Article 6 ECHR, taking account of any relevant rules of international law applicable in the relations between the parties. “The Convention”, according to the Court “cannot be interpreted in a vacuum. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part.”93

In Demir and Baykara v. Turkey94 the Court extensively referenced to the

interpretation rules of the VCLT. Where Turkey argued that the Convention should not be interpreted by referring to international obligations to which it had not consented to be bound,95 the Court, while summarizing its own caselaw96 stated that the Convention has to be

interpreted “in a manner which renders its rights practical and effective, not theoretical and illusory” and must be read “as a whole (…) in such a way as to promote internal consistency and harmony between its various provisions.”97 Furthermore, the Court held that it “has never

considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties.”98

4.3. Pre-Hassan jurisprudence

4.3.1. Early development

In Loizidou v. Turkey99 for example, the Court referred to Article 31(3)(c) VCLT and held that

the ECHR, in casu Article 1 of Protocol 1 to the European Convention for the Protection of

89ILC Study Group on Fragmentation (2006a), § 435, p. 219.

90 Al-Adsani v. the United Kingdom, no. 35773/97, European Court of Human Rights, 21 November 2001. 91 Fogerty v. the United Kingdom, no. 37112/97, European Court of Human Rights 21 November 2001. 92 McElhinny v. Ireland, no. 31253/96, European Court of Human Rights, 21 November 2001.

93 Al-Adsani, § 55-56; Fogarty, § 35-36; and McElhinny § 36-37.

94 Demir and Baykara v. Turkey, no. 34503/97, European Court of Human Rights, 12 November 2008. 95 Demir, § 53-54 and 61-62.

96 For example Golder v. the United Kingdom (cited above), § 29; Johnston and Others v. Ireland (no. 9697/82,

European Court of Human Rights, 18 December 1986, § 51), Lithgow and Others v. the United Kingdom (nos.9006/80, 92313/81, 9265/81, 9266/81, 9313/81, 9405/81), European Court of Human Rights, 24 June 1986, § 114 and 117); and Witold Litwa v. Poland (no. 26629/95, European Court of Human Rights, 4 April 2000, § 57-59).

97 Demir, § 66. 98 Demir, § 67.

99 Loizidou v. Turkey [GC], no. 15318/89, European Court of Human Rights, 18 December 1996. Loizidou, a

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Human Rights and Fundamental Freedoms100 as well as Article 8 of the Convention, had to

be interpreted in the light of the rules of interpretation as laid down in the VCLT.101 The

Court however did not apply international humanitarian law and only determined whether Turkey was responsible for the alleged violations. Another example are the Turkish military operations in Kurdish territories, which led to several cases that have been brought before the Court. In Ergi v. Turkey102 for example, the applicant inter alia complained that his sister had

been killed unintentionally by Turkish security forces in violation of Article 2 of the Convention, during gunfire between security forces of the government and members of the PKK, the Worker’s Party of Kurdistan. In order to analyze the alleged human rights violations the Court used the wording of international humanitarian law by referring to civilian life and incidental loss.103 It resorted directly to international humanitarian law, in “that it elaborates

on the lawfulness of the target, on the proportionality of the attack and on whether the foreseeable risk regarding civilian victims was proportionate to the military advantage.”104 In

other words, the Court referred to international humanitarian law to determine the lawfulness of the measures taken by the Turkish security forces.105 In 2009 the Court went further and

held, in Varnava and others v. Turkey106, that Article 2 of the Convention “should be

interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict.”107

The Court also dealt with the relationship between IHL and IHRL in non-international armed conflicts.108 As to date of May 2018 the Court for example has already delivered more during the Turkish invasion of Cyprus in 1974. She made several attempts to her property, but was denied entry into the Turkish occupied part of Cyprus by the Turkish army.

100 Council of Europe, Protocol 1 to the European Convention for the Protection of Human Rights and

Fundamental Freedoms, 18 May 1954, ETS 9.

101 Loizidou, § 43.

102 Ergi v. Turkey, no. 23818/93, European Court of Human Rights, 28 July 1998. 103 Ergi, § 79.

104 Heintze, H-J. (2004), p. 810. 105 Heintze, H-J. (2004), supra nt. 101.

106 Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,

16071/90, 16072/90 and 16073/90, European Court of Human Rights, 18 September 2009. In this case it was held that Turkey had violated the rights (Article 2, 3 and 5 ECHR) of nine Greek Cypriot nationals who went missing after being detained by the Turkish army after its invasion in 1974 in Northern Cyprus.

107 Varnava, § 185.

108 International humanitarian law distinguishes between international and non-international armed conflicts. In

international armed conflicts there are at least two states involved, where non-international armed conflicts are taking place within the territory of a state involving government armed forces fighting against armed dissidents or armed rebel groups fighting each other, but without the participation of the armed forces of another state. International humanitarian law is applicable in times of armed conflict, whether international or non-international. Jurisprudence shows that human rights are not only applied in international armed conflicts, but as well in non-international armed conflicts, including in cases of occupation.

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than 250 judgments regarding the non-international armed conflict in the Chechen Republic of the Russian Federation.109 Interesting are the cases of Isayeva v. Russia110 (further: Isayeva

I) and Isayeva, Yusupova and Bazayeva v. Russia111 (further: Isayeva II). In both cases

relatives of the applicants were killed as a result of indiscriminate bombings of their villages which allegedly lead to a violation of Article 2 ECHR (the right to life). It was disputed whether or not the bombings were proportionate and necessary in this respect. In both judgments the Court used the words illegal armed groups, armed fight, and distinguished between armed groups, fighters, insurgents and civilians112, which could suggest that the

Court implicitly applied IHL to non-international conflicts. On the other hand, the Court argued that the military operation had to be judged against a normal legal background since a state of emergency had not been declared and no derogation was issued under Article 15 ECHR.113 According to Tamura this suggests that the Court considered the use of force in

these case to be law enforcement operations.114 He argues that in non-international armed

conflicts the conduct of hostilities and law enforcement operations may overlap and the

Isayeva conflicts are a typical example since the operations were aimed at either disarmament

(law enforcement) or destruction (conduct of hostilities)115; so norms of both IHL and IHRL

were applicable. As a result, in its findings the Court relied implicitly but substantially on the IHL standards of necessity and proportionality.116

4.3.2. The lead up to Hassan

Since the Court was more and more willing to shift to a closer relationship between IHL and IHRL the rules of the law of war became more and more an issue before the Court. The increasing focus on the extraterritorial activity of states and the Court’s recognition that this could fall within the jurisdiction concept of Article 1 ECHR was an important reason, since it led to clashes between both bodies of law. While the fact that a state has to comply with IHL

109 European Court of Human Rights, Armed Conflicts, Factsheet, updated 2018, p. 10. 110 Isayeva v. Russia, no. 57950/00, European Court of Human Rights, 24 February 2005.

111 Isayeva, Yusupova and Bazayeva v. Russia, nos. 57947/00, 57948/00 and 57949/00), European Court of

Human Rights, 24 February 2005.

112 Isayeva I, § 176, 180, 182-184, 187-190, 195-197, and Isayeva II § 175, 177-178, 181, 185, 187, 189, 191,

196, 202, 203, 215, 222, 233.

113 Isayeva I, § 191. Article 15(2) ECHR explicitly recognizes that States may derogate from Article 2 to the

extent that the deaths result from lawful acts of war.

114 Tamura, E., The Isayeva Cases of the European Court of Human Rights: The Application of International

Humanitarian Law and Human Rights law in Non-International Armed Conflicts, Chinese Journal of

International Law, 2001, p. 135.

115 Isayeva I, § 188. 116 Tamura (2001), p. 140.

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when it fights outside its own territory is rather obvious the territorial field of application of IHRL raises more controversies. According to Article 1 ECHR: “The High Contracting parties shall secure to everyone in their jurisdiction the rights and freedoms defined in Section I of this Convention.” According to the Court in Catan and Others v. the Republic of Moldova

and Russia117 “the exercise of jurisdiction is a necessary condition for a Contracting State to

be able to held responsible for acts or omissions imputable to it.118 Immediately the questions

arises of when an individual is considered to be under the jurisdiction of a state and of whether and when the Convention can be applied extraterritorially?

The starting point is that a state’s jurisdiction within the meaning of Article 1 ECHR is primarily territorial. According to the Court in Banković and others v. Belgium and 16 other

States119 Article 1 of the Convention must reflect “the ordinary and essentially territorial

notion of jurisdiction, and other bases of jurisdiction being exceptional, “requiring special jusitification in the particular circumstances of each case.”120 However, as an exception to this

principle of territoriality, the Court held in Al-Skeini and Others v. the United Kingdom121 that

jurisdiction under Article 1 can extend to acts of state authorities which produce effects outside its own territory.122

At present the ECtHR has recognized a number of exceptional circumstances which could give rise to the exercise of jurisdiction when a Contracting State acts outside its own territory. Jurisdiction in these cases can roughly be established in two ways: a) on the base of state agent authority or control exercised over individuals/person of the applicant, and b) on the basis of effective control over the foreign territory in question.123 With regard to the

former, the Court held in Al-Skeini that: “whenever the State, through its agents, exercises control and authority, and thus jurisdiction, over an individual, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual.”124 This case concerned the

killing of six Iraqi civilians by the British military, during British security operations, in southern Iraq which was placed under British responsibility. It was disputed whether the

117 Catan and Others v. the Republic of Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, European

Court of Human Rights, 19 October 2012.

118 Catan, § 103

119 Banković and Others v. Belgium and 16 Other states [GC], no. 52207/99, European Court of Human Rights,

12 December 2001.

120 Banković, § 61.

121 Al-Skeini and Others v. the United Kingdom, no. 55721/07, European Court of Human Rights, 7 July 2011. 122 Al-Skeini, § 133.

123 European Court of Human Rights, Guide on Article 1 of the European Convention on Human Rights,

Obligation to respect human rights – concepts of “jurisdiction”and imputability, updated on 30 April 2018, p. 8.

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victims fell within the jurisdiction of the United Kingdom when they were killed.125

According to the Court the United Kingdom exercised some of the public powers normally to be exercised by a sovereign government. It had assumed power and responsibility for maintaining security in the southwest of the country. In these exceptional circumstances, there was a jurisdictional link, for the purposes of Article 1 ECHR, between the United Kingdom and the persons killed during security operations conducted by British troops.126 With regard

to the principle of jurisdiction on the basis of effective control over the foreign territory in question the Court argued, again in its Al-Skeini judgment, that “the fact that the local administration survives as a result of the Contracting State’s military and other support entails that State responsibility (…) to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols.”127 In short, Al-Skeini meant a further step to a broader application of the European Convention.128 The case

confirmed that human rights obligations are not limited to the territory of the respondent state, but can in exceptional cases extend to situations overseas.

4.4. Hassan v. The United Kingdom

4.4.1 Introduction

The interplay between norms of IHL and IHRL became more and more an issue. The judgment of the ECtHR in Hassan touches upon this issue. Where in its previous judgments the Court avoided to directly apply international humanitarian law, in Hassan, the Court reviewed the deprivation of liberty of a young male by British armed forces during the phase of active hostilities in Iraq, which had raised issues relating to extraterritoriality, Article 5 ECHR, the right to liberty and security in times of armed conflict, and the relationship between international humanitarian law and human rights law.

4.4.2. Facts of the case

The case concerns the capture, by British armed forces, of Tarek Hassan, an Iraqi national who was found on the roof of the house of his brother (an Iraqi Al-Quds General) armed with

125 Al-Skeini, § 3. 126 Al-Skeini, § 149. 127 Al-Skeini, § 138.

128 Bennett, W., The extraterritorial Effect of Human Rights: the ECHR’s Al-Skeini Decision, Lawfare blog, 12

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an AK-47 machine gun, and his subsequent detention at Camp Bucca, a facility ran by both the United States and the United Kingdom, where he was interrogated by military personnel of both governments on the suspicion that he might be a combatant or a civilian posing a threat to security. After establishing he was not, Hassan was released from the camp. He disappeared and was found dead four months later in an area not controlled by British forces. His body showed bullet wounds and physical signs of torture and other ill treatment.

4.4.3. Claim of the applicant

After having exhausted domestic legal remedies in the United Kingdom, the complaint was brought by his brother, Kadeem Hassan, claiming under Article 5 of the Convention that the arrest and detention of his brother were arbitrary, unlawful and lacking procedural safeguards.129 This article contains an exhaustive list of permitted grounds for detention, and

preventive security detention is not one of them. The article reads: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. Authorized deprivations of liberty under Article 5 are as follows: “a) the lawful detention of a person after conviction by a competent court; b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; and f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” According to the Court in McKay v. the United

Kingdom130 the key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of

liberty. This right is of the highest importance in a democratic society within the meaning of

129 Hassan, § 3.

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the ECHR.131 Kadeem Hassan argued that the grounds of permissible detention in Article 5

ECHR do not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time. He argued that absent any derogation under Article 15 ECHR the United Kingdom had violated its international commitments under the Convention by interning his brother Tarek Hassan.132

4.4.4. Arguments of the United Kingdom

In the arguments of the United Kingdom, the lex specialis rule played a central role, both with regard to the jurisdiction question as well in the merits phase. Concerning whether Hassan fell under jurisdiction of the British government it was argued that Article 1 of the Convention did not apply during the active phase of an international armed conflict. In such a situation “the conduct of the Contracting State would, instead, be subject to all the requirements of international humanitarian law.”133

In the merits phase, with regard to the claim of a violation of Article 5 ECHR, the British government was of the opinion that, if the Convention would apply, humanitarian law had to be taken into account, since it was the lex specialis and could eventually modify or displace a provision of the Convention.134 And even if that was not the case, Article 5 should

be interpreted consistent with other rules of international law, in this respect, international humanitarian law.135 The United Kingdom pointed out that it had not lodged a formal request

under Article 15 of the Convention allowing it to derogate from its obligations under Article 5 of its operations in Iraq since “there had been no need to do so, since the Convention could and did accommodate detention in such cases, having regard to the lex specialis, international humanitarian law.”136

Since Hassan had been found armed with a machine gun at the time of his arrest and other weapons were found, he was, in accordance with the Third Geneva Convention, detained as a suspected prisoner of war, eventually a civilian posing a threat to security. Therefore, it was argued, the taking of prisoners of war and the detention of civilians pursuant to the Third and Fourth Geneva Conventions was lawful under Article 5(1) ECHR.

131 See for example Medvedyev and Others v. France [GC], no. 3394/03, European Court of Human Rights, 29

March 2010, § 76 & Ladent v. Poland, no. 11036/03, European Court of Human Rights, 18 June 2008, § 45.

132 Hassan, § 85. 133 Hassan, § 71. 134 Hassan, § 87. 135 Hassan, § 89. 136 Hassan, § 90.

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