TrustHLT/LaCour huggingface dataset:
GR1 (Government): He could not be released immediately because Iraq at that time was a dangerous place, and a military order provided for what it described as, and I quote, a secure, efficient, and humane system for release.
GR1 (Government): Before coming to that release, I can dispose of any suggestion of ill treatment, contrary to Article 3, briefly.
GR1 (Government): Again, there is nothing to support any ill treatment having occurred.
GR1 (Government): Nothing in the documentation, medical or otherwise, suggests it.
GR1 (Government): No possible reason for ill treatment has been advanced.
GR1 (Government): He was shortly questioned twice, the view being formed very early on that he was a civilian and not a threat.
GR1 (Government): Moreover, the evidence the applicant has advanced himself from Mr. Al-Sadun, the same Al-Sadun
GR1 (Government): whose case you heard some years ago, who was also in the camp at the time, positively supports the fact that no such ill treatment occurred.
GR1 (Government): Had there been ill treatment, Mr. Al-Sadun
GR1 (Government): would no doubt have been the first to say so, or to say that Tariq Hassan had even told him about such ill treatment of himself.
GR1 (Government): There is nothing to that effect even alleged.
GR1 (Government): His release.
GR1 (Government): It is clear from the records that Tariq Hassan was released in May 2003.
GR1 (Government): The most likely date is the 2nd of May 2003.
GR1 (Government): He returned by escorted coach to the place of his capture, either Umm Qasr or Basra.
GR1 (Government): What happened after his release is not known, and given the fact of release, could not be known to the government.
GR1 (Government): However, the following facts do appear.
GR1 (Government): They lead to the clearest conclusion that his death was not at the hands of British forces.
GR1 (Government): There is nothing whatever to link what happened to Tariq Hassan after he was released from Camp Bukha in May 2003 to the acts of the UK or its armed forces.
GR1 (Government): His body was found some four months after his release.
GR1 (Government): The only possible inference from the fact of the discovery of his body at this time is that he was in fact killed at or shortly before that discovery of the body.
GR1 (Government): The date of death, according to the death certificate, is the 1st of September 2003.
GR1 (Government): His body was found in Samarra, some 600 kilometers away from Camp Bukha and Umm Qasr.
GR1 (Government): It was found in an area that was not and had never been occupied by British forces.
GR1 (Government): It is said that he was killed by a Kalashnikov.
GR1 (Government): That is not a weapon used by British forces.
GR1 (Government): And finally, any theory that British forces had anything to do with his death thus has to be built around a prior claim that he was not in fact released in May 2003.
GR1 (Government): Such a claim would be impossible to reconcile with multiple contemporaneous records showing that Tariq Hassan was quickly determined to be a civilian who did not pose a security threat and was then released in May 2003.
GR1 (Government): There is thus no case on Article 2 on those facts.
GR1 (Government): This is on no viewer case, such as posited in Van Aver Paragraph 184, where a particular burden shifts to the respondent state because a person has been found injured or dead or has disappeared in an area within the exclusive control of the authorities of that state, and there is prima facie evidence that the state at least may be involved.
GR1 (Government): This is also not a case like Velikova or other cases relied upon by the applicant where the applicant's injury or death indisputably occurred whilst in the custody of the contracting state's authorities.
GR1 (Government): Records clearly show that Tariq Hassan was released from custody.
GR1 (Government): It is equally clear for the reasons I've just given that he wasn't killed by British forces or even in an area controlled by UK authorities.
GR1 (Government): He was killed by persons unknown four months after release, some 600 kilometers away.
GR1 (Government): There is therefore nothing to investigate.
GR1 (Government): There is no arguable basis even for linking his death to the United Kingdom.
GR1 (Government): I make the submission of principle that in a case such as this, the existence of an arguable case that in some way the state concerned acted incompatibly with the substantive provisions of Article 2 is and properly in principle should be a precondition to any duty to investigate arising.
GR1 (Government): No such arguable case is close to being made out.
GR1 (Government): In any event, the records discovered since the matter was raised over three years after the death itself, as I indicated, show with clarity the essential elements of what happened.
GR1 (Government): In truth, this is a claim about Article 5 or nothing.
GR1 (Government): But before coming to Article 5, I want to deal very briefly, if I may, with jurisdiction.
GR1 (Government): It is, of course, well established that jurisdiction under Article 1 of the Convention is generally territorial in nature and that extraterritorial jurisdiction is exceptional.
GR1 (Government): It is to be emphasized that this case is different from previous cases in which the court has found exceptionally extraterritorial jurisdiction to exist in the context of armed conflict.
GR1 (Government): In Al-Skhaini and in Al-Jadda, the relevant events took place after the end of the active hostilities phase of the armed conflict on the 1st of May, 2003, at a time when the United Kingdom had become an occupying power within the meaning of Article 42 of the Hague Regulations.
GR1 (Government): And the UK was found, as you will recall, to have assumed authority and responsibility for the maintenance of security in that area of Iraq which it controlled, Southeast Iraq.
GR1 (Government): Cases such as Loizidou and Van Aver concern the extraterritorial acts of a contracting state within the territory of another contracting state, so different for that reason.
GR1 (Government): And the case is also different to those mentioned at paragraph 164 of Al-Skhaini, which again concerned events on a contracting state's own territory.
GR1 (Government): The government's submission of general principle is that where new sets of circumstances are argued to bring a person within the jurisdiction of a contracting state, the court should act in accordance with the base principles that it has consistently acknowledged, chief amongst them that jurisdiction in relation to extraterritorial acts is truly exceptional.
GR1 (Government): That as Bankovic noted, it is not appropriate to treat the foundational concept of jurisdiction as part of the living instrument doctrine.
GR1 (Government): That in consequence of both of these principles, there is no scope for the incremental development of the very concept of jurisdiction, or at the very least, that any such development should be approached with the utmost caution.
GR1 (Government): Still at the level of general principle, we have set out in some detail in our observations, paragraphs 65 to 75, our understanding of the court's reasoning in Al-Skhaini.
GR1 (Government): Of course, we say the situation in this case is different to that in Al-Skhaini for the reasons I've given.
GR1 (Government): However, given the importance of the principles governing jurisdiction to other cases, we do invite the court to agree in its judgment with that understanding of the reasoning of the court in Al-Skhaini.
GR1 (Government): What then of Tariq Hassan?
GR1 (Government): At the point of his capture, as I readily acknowledge, it can be argued that he was under the full and exclusive control principle articulated by the court at paragraph 136 of Al-Skhaini.
GR1 (Government): But even at that point, my submission is that he should not be held to fall within the UK's jurisdiction.
GR1 (Government): My submission is that the full and exclusive control exception should not apply in the active hostilities phase of an international armed conflict like this one, taking place outside the territory of any contracting state.
GR1 (Government): And that is because the convention was simply not designed to regulate the conduct of states in such a situation.
GR1 (Government): International humanitarian law applies, as it has been specifically designed to do.
GR1 (Government): And none of the other exceptional situations of extraterritorial jurisdiction referred to at paragraphs 134 to 142 of Al-Skhaini are of any potential application in this case.
GR1 (Government): To take but one example, in Al-Skhaini itself at paragraphs 149 to 150, the effective control of an area exception was found not to apply, even in relation to events after the 1st of May 2003.
GR1 (Government): That is, in the later stage, by which point the UK had become a Hague regulation state.
GR1 (Government): So that's the point of his capture.
GR1 (Government): Whilst at Camp Booker, Tariq Hassan was for a separate reason outside the jurisdiction of the UK.
GR1 (Government): Camp Booker was a United States-run facility, as was recognized by the fourth section in the Al-Sadun case at paragraph 41.
GR1 (Government): In Al-Skhaini at paragraph 136, the Grand Chamber noted that in Al-Sadun, the court held that two Iraqi nationals detained in British-controlled military prisons in Iraq did fall within the jurisdiction of the UK, since the UK exercised, as it was put, total and exclusive control over the prisons and the individuals detained in them.
GR1 (Government): Clearly, the UK did not exercise total and exclusive control whilst they were in Camp Booker.
GR1 (Government): Similarly, in Hurst-Jammer at paragraph 81, the Grand Chamber spoke of a situation where the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities.
GR1 (Government): Even if it were argued that Tariq Hassan was under some kind of joint UK or US control while at Camp Booker, it is submitted that the UK's participation with a non-contracting state in a joint authority responsible for the administration of a place of detention outside the territory of any contracting state does not place persons in that facility within the jurisdiction of the UK.
GR1 (Government): For the purposes of the principle described at 136 of Al-Skaini, a contracting state in such a case cannot have full and exclusive control over an individual detained by such joint authority.
GR1 (Government): The position is not changed because the memorandum of arrangement between the UK and the US on which the applicant has relied.
GR1 (Government): The memorandum of arrangement is consistent with Article 12 GC3, the Third Geneva Convention, which expressly provides for the transfer of prisoners of war by the detaining power to another power which is a party to that convention.
GR1 (Government): The second sentence of paragraph 2 of Article 12 makes clear that upon such transfer, and I quote, responsibility for the application of the convention rests on the power accepting them while they are in its custody.
GR1 (Government): It therefore specifically envisages, in effect, a transfer of responsibility so that if the capturing state affects such a transfer, the capturing state no longer has jurisdiction in the Article 1 sense.
GR1 (Government): It is immaterial that under paragraph 4 of the memorandum, the UK could have requested the return of Tariq Hassan to its custody from the US.
GR1 (Government): The same point applies.
GR1 (Government): The fact that such a requesting mechanism is in place strongly supports the proposition that it was the state holding the person, here the US, that exercised jurisdiction in the Article 1 sense unless and until that state returned the person to the capturing state.
GR1 (Government): The UK never made such a request in relation to Tariq Hassan and had no reason to do so.
GR1 (Government): Finally, UK troops were responsible for Tariq Hassan's transport from Camp Bucca back to his place of capture.
GR1 (Government): However, during that short period, he was in no sense within the jurisdiction of the UK.
GR1 (Government): He had become a free man merely being provided with transport arranged by UK forces to ensure that he reached his destination safely.
GR1 (Government): Article 5, then, the principal issue of substantive law raised by the facts of this case is whether the detention of a prisoner of war in accordance with GC3 would be contrary to Article 5 of the ECHR unless all of the substantive and procedural requirements of Article 5 are somehow complied with.
GR1 (Government): My submission to the court is that where a person is detained as an actual or presumed prisoner of war under the terms of GC3 in the active phase of hostilities, that detention is not contrary to Article 5.
GR1 (Government): Three short points on that.
GR1 (Government): First, the applicable safeguards governing all relevant aspects of detention are expressly regulated in detail by international humanitarian law, the Geneva Conventions.
GR1 (Government): That is the body of international law designed to deal with detention in such a situation.
GR1 (Government): Given that design, it is unsurprising that the safeguards afforded to the detainee by the Geneva Conventions are entirely sufficient to provide appropriate protection.
GR1 (Government): Not merely that, but those safeguards are specifically tailored to the situation they are designed to cover.
GR1 (Government): There is no need for the ECHR guarantees designed to cover detention in peace and not war, in summary, to step in to fill what might otherwise be perceived as a human rights deficit.
GR1 (Government): The Geneva Conventions are a true lex specialis.
GR1 (Government): Inherent, of course, in that very description is an assertion of the preference in principle for one particular system of law over another.
GR1 (Government): The preference here flows not just from the sufficient and tailored nature of the Geneva Conventions as the appropriate preferable system for regulating detention in such cases.
GR1 (Government): It also flows from what we submit is the inherent unsuitability of Article 5, or at least Article 5 without significant modification, as the regulatory system here.
GR1 (Government): To take but one example, an example which, as you will recall, much troubled our House of Lords in the Al-Jadda case, the categories of case listed in Article 5, paragraph 1 purport to be exhaustive as to the circumstances in which detention can occur compatibly with that article.
GR1 (Government): There is no category for combatants or suspected combatants.
GR1 (Government): It may, of course, be possible in some cases to stretch the existing categories to include all of those who could lawfully be detained under the Geneva Conventions.
GR1 (Government): But that is very far from obvious or easy.
GR1 (Government): And to the extent that that cannot be done to cover all cases where capture is specifically permitted by the Geneva Conventions, there would be absurdity or worse.
GR1 (Government): A state engaged in the active phase of an international armed conflict could kill an enemy combatant, but not, because of the operation of Article 5, capture and detain him.
GR1 (Government): That simply cannot, we respectfully submit, be a principled place for this court's jurisprudence to end up.
GR1 (Government): That's the first short point.
GR1 (Government): Secondly, such a conclusion is powerfully supported by the court's consistent approach of interpreting the convention itself in harmony with other rules of international law, and specifically with international humanitarian law.
GR1 (Government): See, for example, the Varnava case at paragraph 185 in the context of Article 2.
GR1 (Government): The superimposition of Article 5 on top of the Geneva Conventions on no view simply adds an additional and thus attractive layer of human rights protection.
GR1 (Government): The two systems simply do not fit in this context and for this purpose.
GR1 (Government): They simply don't fit naturally together.
GR1 (Government): And they do not do so for the simple reason that only one of them is designed to meet the context that we are considering.
GR1 (Government): That is the Geneva Conventions.
GR1 (Government): Thirdly, the approach is supported by the reasoning of the ICJ and by authoritative commentators, as we've set out in our observations at paragraph 107.
GR1 (Government): So we make alternative submissions.
GR1 (Government): Our primary case is that the Geneva Conventions are the lex specialis, and as such, displace Article 5 in the present context.
GR1 (Government): Our alternative case, and it is very much an alternative for the reasons I've just given, is that Article 5 is to be interpreted, or if necessary, modified in a way that avoids inconsistency with the Geneva Convention regime.
GR1 (Government): So on this case, on that analysis, Article 5 of the Convention must be interpreted as permitting the capture and detention of suspected combatants.
GR1 (Government): It may be possible, indeed the applicant himself appears to suggest it, to interpret the term offense within Article 5.1c so as to include participation
GR1 (Government): in the conflict as an enemy combatant, and hence subject to detention as a prisoner of war within GC3.
GR1 (Government): This approach would also require the procedural safeguards in Article 5, powers 2 to 5, to be modified or interpreted to have the same substantive content as the applicable provisions of international humanitarian law so far as concerns the capture and detention of prisoners of war in this context.
GR1 (Government): We note that a paragraph 53 of their submission, the Amicus Curiae brief, concludes that in relation to the grounds of detention, the type of review mechanism applicable, and the trigger for release, there would only be a violation of human rights law if there were a violation of GCs 3 or 4.
GR1 (Government): So the outcome is the subject of at least some common ground between some of the parties.
GR1 (Government): The real question, we submit, is the principle's route to that outcome, displacement of Article 5 by the lex specialis principle, or modification of it as a result of that.
GR1 (Government): Turning very briefly to the facts, and assuming that Tariq Hassan was within the jurisdiction at all times, contrary to our primary case, he was captured on the 23rd of April, 2003, as a suspected combatant, treated as a presumed prisoner of war, and taken to Camp Bucca for the determination of his status.
GR1 (Government): Once that was done, and it was speedily done, he was cleared for release.
GR1 (Government): From the 25th of April, he was no longer being detained in Camp Bucca, but was simply there awaiting safe transport to his place of capture.
GR1 (Government): He was then released, almost certainly, on the 2nd of May, 2003.
GR1 (Government): All of that was precisely consistent with the applicable rules of GC3, as no one appears to deny.
GR1 (Government): Article 5 should produce, and if necessary, we submit, at least can produce, no different answer.
GR1 (Government): Specifically, it is possible to interpret Article 5.1c
GR1 (Government): sufficiently broadly to include situations such as this.
GR1 (Government): Offense would need to be interpreted to include participation as a suspected enemy combatant.
GR1 (Government): The requirement for status to be determined by a competent tribunal under Article 5 of GC3 did not, on our facts, turn out to be necessary, because he was determined to be a civilian, and then cleared for release.
GR1 (Government): That swift determination also lies at the heart of the case under the ECHR procedural guarantees in Article 5, powers 2 to 4.
GR1 (Government): If they are not displaced entirely, they can and should be approached and applied in the way that we've submitted in our observations between paragraphs 137 and 143.
GR1 (Government): The short point is that they did not arise given the swift determination that he should be released as a civilian posing no real security risk.
GR1 (Government): For all of those reasons, my submission is that Tariq Hassan was not within the jurisdiction of the United Kingdom.
GR1 (Government): But even if he was, there is nothing on the facts of his case to support a finding of violation of any of Articles 2, 3, or 5.
Dean Spielmann (JudgeP): Thank you Mr Eadie. I call Mr Otty.
AP1 (Applicant): Mr. President, in April 2003, Tarek Hassan was taken into
AP1 (Applicant): custody by United Kingdom forces in Iraq.
AP1 (Applicant): In September of that year, he was found dead with his hands tied together with wire, with multiple bullet wounds, and with an identity tag in his pocket issued by Camp Bucca, the detention camp in which he had been held.
AP1 (Applicant): The only people known to have seen Mr. Hassan in the time
AP1 (Applicant): between his capture and death are the UK forces themselves and American forces also at Camp Bucca.
AP1 (Applicant): No independent investigation into the circumstances surrounding his death or detention has been held.
AP1 (Applicant): Not a single witness statement from any of the soldiers responsible for his capture has been taken.
AP1 (Applicant): And contradictory documentary material of significance has emerged only slowly over time, including most recently, a matter of weeks ago.
AP1 (Applicant): Against that background, it is submitted that Mr. Hassan's
AP1 (Applicant): procedural and substantive rights under Articles 2, 3, and 5 of the Convention have been violated.
AP1 (Applicant): All of the applicant's written submissions are maintained.
AP1 (Applicant): But for today's purposes, I will focus on three core propositions.
AP1 (Applicant): First, Mr. Hassan was within the jurisdiction of the United
AP1 (Applicant): Kingdom under Article 1 of the Convention.
AP1 (Applicant): Secondly, the protections owed to Mr. Hassan under the
AP1 (Applicant): Convention were, in the absence of an Article 15 derogation, not displaced in any sense by international humanitarian law.
AP1 (Applicant): Thirdly, the principal facts relating to the arrest and alleged release show the inadequacy of investigation to date and a violation of each of the rights identified.
AP1 (Applicant): Jurisdiction first.
AP1 (Applicant): Following the Grand Chamber's decision in Al-Skaini, there can no longer be any doubt that this applicant's case and this application raises matters within the U.K.'s
AP1 (Applicant): Article 1 jurisdiction.
AP1 (Applicant): In its judgment in Al-Skaini, the Grand Chamber expressly recognized that extraterritorial jurisdiction may arise in certain circumstances, including, first, where the state's agents exercise control and authority over an individual, and secondly, where the state, as a result of military action, exercises effective control over the area in which the acts in issue are alleged to have occurred.
AP1 (Applicant): Both principles are satisfied here.
AP1 (Applicant): So far as state agent authority is concerned, the position is simple.
AP1 (Applicant): Mr. Hassan was captured by U.K. forces.
AP1 (Applicant): He was processed and interrogated by U.K. forces.
AP1 (Applicant): His detention remained under U.K. control at all times,
AP1 (Applicant): and it is U.K. forces who were purportedly involved in making
AP1 (Applicant): arrangements for his release.
AP1 (Applicant): This was a classic exercise of jurisdiction of the kind recognized by the U.K. itself in the Bankovic proceedings.
AP1 (Applicant): The U.K.'s argument in the present proceedings that state
AP1 (Applicant): agent authority in jurisdiction is not made out is of no merit.
AP1 (Applicant): It contends, first, that jurisdiction did not apply at the moment of capture because the convention was entirely displaced by IHL.
AP1 (Applicant): That approach is contrary to the wording of the convention, contrary to the judgments of this court, contrary to the judgments of the International Court of Justice, and contrary to statements by all relevant United Nations bodies and officeholders.