TrustHLT/LaCour huggingface dataset:
GR1 (Government): And so our case is that that is the more likely place of release.
GR1 (Government): But we cannot, because there are some other records which at least make reference to Basra, we cannot say for certain, because there are discrepancies in the contemporaneous documents of that kind.
GR1 (Government): But again, in relation to that, the critical feature is that it is uncontroversial and uncontroverted that there was release on that date or on or around that date to one or other of those places, more likely, most likely perhaps, 2nd of May and Umm Qasr.
GR1 (Government): Then at 106 of the fourth question of Judge Zia-Miti, 106 of GC4 and the obligation to have contact with the family.
GR1 (Government): Again, that's addressed in our observations for the fourth section, paragraphs 52 and 68.
GR1 (Government): And in relation to paragraph 68 of those observations, we stated that in relation to Tariq Hassan specifically, the statement of Timothy Lester says, at paragraph 6, that the POW Information Bureau, which now and during the conflict in Iraq acted as the UK's National Information Bureau, forwarded details of Tariq's detention to the ICRC on the 25th of July, 2003.
GR1 (Government): The statement adds that the record indicates that Tariq did not consent to Iraq being noted.
GR1 (Government): The delay is also there explained.
GR1 (Government): It was due to a computer update and didn't mean we therefore respectfully submit that there was a breach of that provision of the Geneva Conventions.
GR1 (Government): Judge Marni's questions then, the military order calling for the two-stage screening process.
GR1 (Government): And the question was, did the two interviews correspond to that process, pointing out that one was by the US and one was by UK agents, and if not, why on his case?
GR1 (Government): My submission in relation to that is, or the factual point in relation to that, is that, as I understand it, we'll double check.
GR1 (Government): But as I understand it, the position is believed to be, although not certain, that the US interrogators conducted the first and UK interrogators conducted the second of those interviews.
GR1 (Government): But that those interrogators, because there were a large number of people flowing through the camp on this basis whose status needed to be determined, those interrogators did share some of their duties.
GR1 (Government): Again, in terms of a reference back into the evidence, the relevant reference back is to the witness statement of the major, whose name has been redacted at annex 5 to our grand chamber observations.
GR1 (Government): But perhaps the punchline of that point is that there was a two-stage process.
GR1 (Government): So whoever conducted it, the process was to determine civilian status, then to determine threat.
GR1 (Government): It looks in the interviews as though that was the process that was properly followed.
GR1 (Government): Was he detained in a compound set aside for UK detainees?
GR1 (Government): I will check in relation to that, and we will confirm this in some of these answers to the court in writing, if we may.
GR1 (Government): But I think the position is that the answer to that question is yes, he was so detained in part of a compound set aside for UK detainees.
GR1 (Government): Article 15, my learned friend Mr. Otte relied upon
GR1 (Government): to some extent, and Judge Marnie has asked a question about it.
GR1 (Government): Whether or not the terms of Article 15 allow a state to derogate in this sort of context, that's the bit I said was a bit above my pay grade.
GR1 (Government): I don't want to commit the UK to a position on that, only to be shouted at thereafter.
GR1 (Government): But the short point I can perhaps make in relation to Article 15 at this stage is that you'll appreciate that our primary position is that they were without the jurisdiction and that Article 5 was displaced.
GR1 (Government): But even if not, the short point about Article 15 is that there is still plenty of argument to be had.
GR1 (Government): We've had it this morning before this case about how precisely Article 5 does or doesn't apply in this sort of context.
GR1 (Government): And whatever else it may be, I'm not trying to formulate a legal test, but whatever else it may be, Article 15 is an action of last resort by states.
GR1 (Government): And if there is a possibility that the articles, the substantive articles of the convention, can be made to work in this sort of context, it might be thought that that was quite a compelling reason for not wishing to derogate, given that derogation, as we all know, has to be a necessary step.
GR1 (Government): And I'm sure we would confront arguments if we were to have derogated.
GR1 (Government): Obviously, you can't do it retrospectively.
GR1 (Government): But if we were to have derogated, I'm sure we would have confronted answers.
GR1 (Government): Well, why are you doing that now?
GR1 (Government): It's not necessary.
GR1 (Government): You need first to have the arguments about how the substantive provisions of the convention can or can't be made to work in this sort of context.
GR1 (Government): And only if they can't should you, it would have to be in future, derogate from those substantive provisions.
GR1 (Government): So I hope that whatever else it may be, that position is at least closer to the heart of the rule of law than jumping to a derogation rather too quickly.
GR1 (Government): Judge Lopez-Guerra, I've picked up and dealt with.
GR1 (Government): I should perhaps give you one reference into the screens that I mentioned.
GR1 (Government): I think they're AA11 at page 163.
GR1 (Government): It's I think the screen document, the printout from the computer that I had in mind.
GR1 (Government): Judge Nussberger then asked about the significance of the ID tag having been found in the pocket of this individual.
GR1 (Government): Again, we'll check what the policy was, whether there was a policy in place about taking back tags on release.
GR1 (Government): But my fundamental submission in relation to the tag in the pocket point, which I know Mr. Otte made a bit of play of in his submissions,
GR1 (Government): is that it simply doesn't prove anything about anything.
GR1 (Government): It doesn't prove anything about release.
GR1 (Government): It proves simply that he kept the ID tag.
GR1 (Government): Because on any view, he was at that point outside the camp.
GR1 (Government): So if there had been a policy to take back, it should have been taken back.
GR1 (Government): If not, he still had it with him.
GR1 (Government): So my submission in relation to that is that it doesn't in truth advance any sort of case that says, doesn't that tend to demonstrate or tend to suggest that he must have been in the camp for a longer period?
GR1 (Government): Not least because the one thing that is absolutely clear on the contemporaneous evidence, and whatever other holes my friend tried to pick in the factual position, he made no headway on this point.
GR1 (Government): Whatever else it shows, it shows consistently across a variety of different contemporaneous documents that release occurred in May 2003.
GR1 (Government): And once one starts from that position, there is then a very large time gap between there and September, with a body discovered in September.
GR1 (Government): The body, no one suggests, could possibly have been, as it were, four months dead.
GR1 (Government): So the theory that the UK agents were involved in some way in that killing has to be squared with the unanimity of position found in a variety of different contemporaneous documents that release occurred on whatever precise date in May.
GR1 (Government): The president then asked two questions, if I can leave Mr. Otte to deal with Judge Albuquerque's
GR1 (Government): questions.
GR1 (Government): The first of the questions related to, again, it was a document Mr. Otte relied upon,
GR1 (Government): the record that you quoted from, sir, about him being brought in because he was the brother of Hassan, that document.
GR1 (Government): Again, the submission that I make about that is that it doesn't actually advance the position at all.
GR1 (Government): It doesn't demonstrate or advance a case that he was, in effect, being taken hostage.
GR1 (Government): That's the theory.
GR1 (Government): Taken hostage, blackmail of the brother to make him give himself up.
GR1 (Government): That just simply doesn't support that case at all.
GR1 (Government): It is common ground between us that one of the reasons why the soldiers captured him and brought him into detention is because he was the brother of the general in the Al-Quds Army and was found in his house with the assault rifle on the roof.
GR1 (Government): So for there to be contemporaneous records that refer to the fact that he was brought in because of his brother doesn't support the case that he was brought in in order to create him as some sort of hostage.
GR1 (Government): Indeed, any theory of that kind would have to be squared, and we say it couldn't be, with the fact that he was then interviewed as he was within 36 hours twice, with conclusions being drawn very quickly that he was a civilian and not a threat, and was then cleared for release.
GR1 (Government): How, it may be asked, does that position, how can that position possibly be squared with a theory that is now being peddled that he was taken hostage for the purpose of blackmailing his brother?
GR1 (Government): If that has happened, why not keep him?
GR1 (Government): It just simply makes no sense whatever and cannot be squared with the documents.
GR1 (Government): Even on the face of that document, my submission is that it doesn't advance that case.
GR1 (Government): It simply demonstrates a fact that is common ground, which was that a part of the reason he was brought in was because he was the brother of the person believed, accurately as it appears, to be a general in the Al-Quds Army.
GR1 (Government): The second question the President asked is whether we rely on the paragraph in the Al-Sidun judgment, paragraph 41, and the answer to that, you won't be surprised to hear, is yes, we do.
GR1 (Government): Can I just check whether there's anything very, very briefly I wish to say by way of reply?
GR1 (Government): I think I've probably picked up most of it in relation to that, perhaps two points.
GR1 (Government): One in relation to jurisdiction and effective control of the area upon which Mr. Otte relied
GR1 (Government): as one alternative for establishing jurisdiction.
GR1 (Government): It's a point which is of some considerable significance because, as you know, Mr. Shiner's firm
GR1 (Government): represent lots of Iraqis before the British courts who are seeking investigations and damages.
GR1 (Government): And these sorts of issues about jurisdiction are of considerable broader relevance for those cases.
GR1 (Government): And I do not want it to go by default, the effective control of the area point.
GR1 (Government): The reason I particularly don't want it to go by default is because when you go back to the relevant principles expanded by the Grand Chamber in Al-Skhaini, you will recall that when you came to deal with effective control of the area, one of the major distinctions between that basis of jurisdiction and state agent authority and control is that under the ECA head, the effective control of the area head, the Grand Chamber said the consequence of jurisdiction is established on that basis is that all the rights in the convention have to be secured to those who fall within the jurisdiction as compared to the divided and tailored approach that you get from state agent authority and control.
GR1 (Government): And we respectfully submit, therefore, that demonstrates both the importance of the basis on which you find jurisdiction, but it also serves to demonstrate the need to be thoroughly cautious before finding jurisdiction on an effective control of the area basis.
GR1 (Government): I put it that way because you'll recall that Al-Skhaini and the House of Lords, they were deeply worried about the practicalities of the consequence of jurisdiction being found.
GR1 (Government): If it was that all convention rights had to be secured, that in itself will tell you a lot about the jurisdictional concept you're dealing with.
GR1 (Government): You cannot have a concept of jurisdiction that requires states to afford the rights and freedoms in the convention in circumstances where they simply cannot practically do so.
GR1 (Government): And that was exactly the position.
GR1 (Government): Whatever else you may decide about state agent authority control, that was exactly the position one was dealing with in Iraq.
GR1 (Government): You have, in that respect, all the evidence from the domestic courts who considered that very submission ECA in relation to Iraq and found the series of facts that we've set out in our observations before this court at paragraph 73.
GR1 (Government): In a nutshell, Lord Justice Brooke saying that it will be, as he put it, utterly unreal to suggest the United Kingdom is in effective control of the area even after the 1st of May when they became an occupying power, so as to be able to provide all of the guarantees that that basis of jurisdiction would entail.
GR1 (Government): And Lord Justice Sedley saying that at that stage after May 2003, the British forces were, in effect, only, as he put it, holding the fragile line against anarchy in Iraq.
GR1 (Government): That is not effective control of an area.
GR1 (Government): But we urge the court to exercise real caution in that respect.
Dean Spielmann (JudgeP): Mr. Eadie, may I ask you to conclude?
GR1 (Government): I'm done, Mr. President, I'm done.
GR1 (Government): I'm sorry I've gone over, but there were a lot of questions to try and deal with.
GR1 (Government): I hope I've dealt with them as shortly as possible.
Dean Spielmann (JudgeP): Thank you very much indeed. Mr. Otty, please.
AP1 (Applicant): I'll address, if I may, some of the questions raised generally, and of course those specifically directed to me.
AP1 (Applicant): Judge Trzaska first.
AP1 (Applicant): The question was, which state was responsible for detention and release here?
AP1 (Applicant): On the fact of Tarek Hassan's case, the position is crystal clear.
AP1 (Applicant): Detention and release were the responsibility of the UK.
AP1 (Applicant): Decisions to detain and decisions to release were made by the UK.
AP1 (Applicant): The second question, which goes to the heart of a number of the questions raised, should Article 5 be displaced or qualified by reference to IHL?
AP1 (Applicant): The answer to that, and the entirely coherent, principled answer is, only through the gateway of Article 15.
AP1 (Applicant): If you derogate lawfully, you can avoid all the practical problems that Mr. Eadie complains
AP1 (Applicant): about.
AP1 (Applicant): You maintain the principled position that this Court is upholding the rights in the Convention.
AP1 (Applicant): And in testing the lawfulness of the extent of the derogation, you can, of course, have regard to IHL.
AP1 (Applicant): But to suggest that a Convention which refers in terms to how a high-contracting party is to respond to a state of war, to suggest that the appropriate response to that is to say, well, we'll ignore that provision, we'll go to war, and then we'll argue for lesser rights, is, with great respect, not a proper approach to take as a matter of conventional construction of any instrument, let alone one with the protective purpose of this Convention.
AP1 (Applicant): Judge Ziemeler next.
AP1 (Applicant): The importance to attach to the ICJ's approach, we, of course, say, as I've already submitted, very considerable indeed.
AP1 (Applicant): The ICJ, of course, again emphasizing precisely the same principled analysis referable to derogation that I found my case upon.
AP1 (Applicant): And though put with characteristic charm, not good enough, we say respectfully, for the United Kingdom to say, we need to think about that question.
AP1 (Applicant): That issue has been at the heart of the way this case has been put, and understandably at the heart of the way this case has been put, because of the wording of the Convention.
AP1 (Applicant): Judge Mahoney raised one factual question, which Mr. Eadie has said the government will
AP1 (Applicant): make further submissions upon or seek to check the position.
AP1 (Applicant): But we agree that on the evidence, undoubtedly, Mr. Hassan was detained, at least for part
AP1 (Applicant): of the time, in a UK JFIT compound.
AP1 (Applicant): That's evident from the evidence of Major Wilson and indeed Major X.
AP1 (Applicant): The question of legal principle that Judge Mahoney raised is, of course, the Article 15 question.
AP1 (Applicant): And I've already made my submissions on that clear.
AP1 (Applicant): But I'd like to give one additional reference, if I may, to the jurisprudence of the European Commission of Human Rights in the Cyprus against Turkey case, which is referred to in the submissions before the Court.
AP1 (Applicant): At paragraph 519 of the Commission's report, the observation is made that once jurisdiction is made out, even on an extraterritorial basis, then it is open to the state vested with that jurisdiction to derogate.
AP1 (Applicant): And the observation is made in the context of Turkey being the high-contracting party appropriate for consideration of derogation under Article 15 in relation to events in northern Cyprus.
AP1 (Applicant): Now reading across, that principled position again supports our analysis of the route through human rights law and IHL.
AP1 (Applicant): Judge Albuquerque asked two questions of the applicants specifically.
AP1 (Applicant): The first was by reference to Baroness Hale's observations in the Al-Jedda case and the question of the potential for displacement of the Convention or qualification of the Convention.
AP1 (Applicant): Those observations we respectfully submit are specifically focusing upon the potential or otherwise for Security Council resolutions to qualify the Convention.
AP1 (Applicant): The same issue addressed authoritatively by this Court in Al-Jedda.
AP1 (Applicant): They provide no basis for suggesting a qualification simply by reference to IHL of Convention rights.
AP1 (Applicant): And again, the principled coherent response is to say, derogate first and then have regard to IHL.
AP1 (Applicant): Now Mr. Eadie's response on this issue involved the submission that one had to be terribly
AP1 (Applicant): careful about derogation because it was a measure of last resort.
AP1 (Applicant): Well of course engagement in international conflict is a step, one hopes, of last resort.
AP1 (Applicant): And it's a step that would involve consideration of the extent to which both the engagement in that conflict and the consequences which will flow can be compatible with international law.
AP1 (Applicant): And the combination of Article 15 and IHL should have provided a ready guide to the United Kingdom before the 20th of March 2003 and the commencement of operations in Iraq.
AP1 (Applicant): It obviously would have been anticipated that if that commencement of operations went well, the United Kingdom would swiftly find itself in a position where it would be detaining individuals, to put it another way, exercising a classic means of bringing individuals within the jurisdiction of the European Convention on Human Rights.
AP1 (Applicant): The practical problems which Mr. Eadie understandably relies upon would then have had to be considered.
AP1 (Applicant): What do we do about Article 5 and the principle of strict construction and the limited grounds for detention?
AP1 (Applicant): What do we do about the other qualified rights in the Convention?
AP1 (Applicant): Well the answer, if you're in a time of war, is you can derogate.
AP1 (Applicant): And then it's up to this court and the domestic courts to scrutinize the lawfulness of that derogation, but it does so in a logically coherent way and it would test, for example, whether the use of lethal force was indeed lethal force compatible with the laws of war and it would test whether detentions were compatible with IHL.
AP1 (Applicant): And if the answer to either of those hypothetical questions was no, then the derogation would be held to be unlawful because, as I sought to submit in my opening submissions, the Geneva Convention provides a safety net below which in no circumstances can a state's conduct fall.
AP1 (Applicant): The second question of Judge Albuquerque was to ask for the applicant's evidence on the question of bargaining chip.
AP1 (Applicant): Now the words bargaining chip are taken from the Essex Human Rights Center intervention, as I've already indicated, but in terms of the evidence, and it's important to focus the stage at which this evidential inquiry is focused, in terms of the evidence for the motivation behind the initial detention, the evidence is that a neighbor of Tarek Hassan's was told shortly after the detention had occurred that Mr. Hassan was being kept until the applicant
AP1 (Applicant): surrendered himself.
AP1 (Applicant): That's Mr. Alubodi, tab two of the applicant's core documents.
AP1 (Applicant): Similarly the applicant's sisters, indeed Mr. Hassan's sisters, were told that the applicant
AP1 (Applicant): had to surrender himself in order for Mr. Hassan to be released.
AP1 (Applicant): That's tab one, the statement of the applicant.
AP1 (Applicant): Now we don't know what happened after that, and we don't know what was in the mind of the soldiers who detained Mr. Hassan in the first place.
AP1 (Applicant): And one reason we don't know that is that the Black Watch document relied upon as the cornerstone of the government's case as explaining the circumstances of what happened was only produced ten years on in redacted form and without a single statement from any of that unit being taken.
AP1 (Applicant): And that alone illustrates, we say vividly, why there is a compelling need for an independent investigation in this case.
AP1 (Applicant): Finally the President's question as to the significance of the passages in the U.S. interview
AP1 (Applicant): record.
AP1 (Applicant): We of course, as I've already indicated, place considerable significance on those observations.
AP1 (Applicant): And it was notable that in his reply to the President, Mr. Eadie addressed only the first
AP1 (Applicant): of the observations.
AP1 (Applicant): And he said nothing about the second passage that the President put to him, indicating that clear consideration was being given as to how the relationship between Mr. Hassan
AP1 (Applicant): and his brother could be exploited for intelligence-gathering purposes.
AP1 (Applicant): There could be no justification in human rights law or IHL for that kind of conduct either.
AP1 (Applicant): Mr. President, subject to reserving the applicant's position to reply to any further written submissions
AP1 (Applicant): that the government seeks to put before the court, those are the only submissions we would seek to make.
Dean Spielmann (JudgeP): Thank you, Mr. Otty.
Dean Spielmann (JudgeP): Now we have now come to the end of the hearing.
Dean Spielmann (JudgeP): The court will now deliberate on the admissibility and merits.
Guido Raimondi (JudgeP): I declare open the public hearing on the amnesty and merits in the case of Molasali versus Greece.
Guido Raimondi (JudgeP): The application was lodged with the court on 5 March 2014 on the Article 34 of the Convention by a Greek national, Ms. Chatitze Molla Sali.
Guido Raimondi (JudgeP): The application was allocated to the first section of the court, pursuant to Rule 52, Paragraph 1 of the rules of the court.
Guido Raimondi (JudgeP): The application was communicated to the government on 23 August 2016.
Guido Raimondi (JudgeP): On 6 June 2017, the chamber decided to relinquish jurisdiction in favor of the Grand Chamber.