TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The government then contends that at Kambuka, Mr. Hassan was transferred to the custody of the United States
AP1 (Applicant): forces, and that at least from that point, jurisdiction ceased.
AP1 (Applicant): That, too, is a submission which must be rejected on the facts.
AP1 (Applicant): First, the detention was pursuant to a memorandum of arrangement under which the U.K. expressly remained a
AP1 (Applicant): detaining power.
AP1 (Applicant): Secondly, the U.K. paid the United States for guarding Mr.
AP1 (Applicant): Hassan and its other detainees.
AP1 (Applicant): Thirdly, Mr. Hassan was apparently held,
AP1 (Applicant): at least for some of the time he was detained, in a U.K.-designated compound within Kambuka,
AP1 (Applicant): and throughout the whole period, U.K. military policemen were
AP1 (Applicant): responsible for his welfare.
AP1 (Applicant): Fourthly, he was registered on a U.K.-run prisoner database and
AP1 (Applicant): issued with a U.K. identity number and bracelet.
AP1 (Applicant): Fifthly, it was the U.K. which was responsible with liaising
AP1 (Applicant): with the Red Cross about the treatment of U.K. detainees,
AP1 (Applicant): retained full rights of access to U.K. detainees,
AP1 (Applicant): and treated U.K. detainees at their own hospitals if they
AP1 (Applicant): needed treatment.
AP1 (Applicant): And, sixthly, the U.K. was responsible for determining
AP1 (Applicant): whether and when Mr. Hassan would be released.
AP1 (Applicant): Now, even if those facts did not establish that the U.K. had
AP1 (Applicant): authority and control over every single aspect of Mr. Hassan's
AP1 (Applicant): detention for all purposes, they certainly established that it had authority and control over the aspects which are relevant to this case.
AP1 (Applicant): It also merits emphasis in this context that the Grand Chamber in both Al-Skhaini and Hersey-Jamar has defined the concept of state agent authority jurisdiction as resting on control and authority, and not as requiring exclusivity of the kind the government contends for in its submissions.
AP1 (Applicant): Cases such as Issaq and Solomou likewise use the phrase authority and or effective control as their touchstone.
AP1 (Applicant): That approach is obviously right as a matter of principle, given the overarching protective intent of the convention reflected in cases such as El-Masri, and because it would otherwise be open to a member state to subcontract out of its own obligations.
AP1 (Applicant): The second principle which I've referred to, effective control of an area, also applies.
AP1 (Applicant): But given the clarity of the position in relation to state agency authority, I do not propose to take time on this aspect, save to make three points in addition to those in the written submissions.
AP1 (Applicant): First, in the Black Watch document dated 23rd April 2003, disclosed by the U.K. for the first time 10 years later in
AP1 (Applicant): September of this year, it is recorded that British soldiers are increasingly being encouraged by Civpop to intervene in family-stripe neighborhood disputes.
AP1 (Applicant): Comments such as these were consistent with other U.K.
AP1 (Applicant): materials describing the U.K. as an occupying power discharging
AP1 (Applicant): policing functions as early as the 9th of April 2003.
AP1 (Applicant): They show the extent of control U.K. forces were seen by the U.K.
AP1 (Applicant): as enjoying, and that it extended far beyond ordinary military activities.
AP1 (Applicant): Secondly, as the evidence of Major Wilson shows, U.K. forces were purporting to detain individuals at Camp Buka
AP1 (Applicant): for criminal justice purposes at the time of Mr. Hassan's
AP1 (Applicant): detention.
AP1 (Applicant): And thirdly, even if the government's submissions were right, that it was only in effective control of the area in issue from the 1st of May 2003, then it would still have had effective control during part of the period in which Mr. Hassan
AP1 (Applicant): was detained, as well as at the time of his purported release.
AP1 (Applicant): There is one further point of law of wider importance on the issue of jurisdiction which merits brief comment.
AP1 (Applicant): The government in its observations specifically invites the Grand Chamber to confirm that the concept of jurisdiction is not subject to the living instrument doctrine.
AP1 (Applicant): That arises from a suggestion to this effect in Bankovic.
AP1 (Applicant): Although it is not necessary to resolve this issue in this case because Mr. Hassan was so clearly within classic,
AP1 (Applicant): well-established concepts of jurisdiction, it is important to note that that argument has recently been expressly rejected by the United Kingdom's own Supreme Court.
AP1 (Applicant): In the case of Smith against Ministry of Defense, the court extended the protection of the convention to British servicemen abroad and stated that the suggestion in Bankovic can no longer be regarded as entirely accurate.
AP1 (Applicant): The court will also be aware that the government's position in this regard has been rejected in international law more generally.
AP1 (Applicant): In the Aegean Sea continental shelf case, the International Court of Justice characterized it as inconceivable that terms like domestic jurisdiction and territorial status were intended to have a fixed content regardless of the subsequent evolution of international law.
AP1 (Applicant): That potential for evolution and development is moreover strongly supported by statements such as that made recently by the Grand Chamber in the Al-Masri case.
AP1 (Applicant): There the court stated as follows, the convention is an instrument for the protection of human rights and it is of crucial importance that it is interpreted and applied in a manner that renders those rights practical and effective, not theoretical and illusory.
AP1 (Applicant): This concerns, the Grand Chamber continued, not only the interpretation of substantive provisions of the convention, but also procedural provisions.
AP1 (Applicant): The applicant accordingly invites the Grand Chamber to decline to give the government the confirmation it seeks.
AP1 (Applicant): I turn next to the relationship between the convention and IHL.
AP1 (Applicant): The government's primary position is that IHL displaces the convention because it is argued the relevant acts took place within the active combat phase of an international armed conflict.
AP1 (Applicant): The applicant contends that this argument fails at the first hurdle.
AP1 (Applicant): He does not accept for the reasons set out in his written submissions that the relevant acts did take place during such an active combat phase.
AP1 (Applicant): By the time Mr. Hassan was arrested,
AP1 (Applicant): Saddam Hussein's regime had fallen and there are numerous indications that significant combat operations were over, both generally and at least in the area concerned in this case.
AP1 (Applicant): In any event, however, the government's position is wrong in law.
AP1 (Applicant): The convention is not displaced and it continues to apply for at least three reasons.
AP1 (Applicant): First, the convention is absolutely clear that its provisions continue to apply in times of war unless the subject of an express derogation.
AP1 (Applicant): What otherwise is the purpose of the derogation provision in Article 15?
AP1 (Applicant): Secondly, that position that relevant human rights treaties continue to apply in situations of conflict, as in peace, has been consistently and repeatedly recognized as correct by this court and by other international courts, tribunals and treaty bodies.
AP1 (Applicant): Thirdly, there is no conceptual difficulty with the idea that IHL and human rights law may overlap in certain circumstances.
AP1 (Applicant): But in proceedings before this court, absent a derogation, this cannot lead to any reduction in the protection provided by the convention, and there can be no question of displacement.
AP1 (Applicant): IHL is a safety net applicable even in the event of a derogation.
AP1 (Applicant): It is not a means of the state's obligations being independently watered down.
AP1 (Applicant): The first of these points requires little elaboration.
AP1 (Applicant): Article 15.1 of the convention creates a specific procedure
AP1 (Applicant): under which it may be possible to derogate from certain provisions in order to deal with war or other public emergency threatening the life of the nation.
AP1 (Applicant): There was no such derogation in this case.
AP1 (Applicant): The government has offered no explanation why this is so.
AP1 (Applicant): And Article 15 would be rendered largely redundant if a de facto derogation could now be implied in the way the government apparently suggests.
AP1 (Applicant): The applicant contends simply that unless and until the formal gateway of derogation is passed through, there can be no possibility of applying IHL in preference to convention law as a matter of first principle.
AP1 (Applicant): The second point is that the government's displacement theory would be inconsistent with the practical and protective intent of the convention, and the previous case law and learning of the court and all other major international courts and treaty bodies.
AP1 (Applicant): The court's own case law has repeatedly applied the convention in situations of international and non-international armed conflict, most recently in Al-Jeddah, but also in earlier cases concerned with northern Cyprus, southeast Turkey, northern Iraq, Chechnya, and Georgia.
AP1 (Applicant): The ICJ has addressed this question on several occasions, ruling repeatedly that IHL does not displace international human rights law in wartime.
AP1 (Applicant): In the Palestinian wall advisory opinion, it held that the protection offered by human rights conventions does not cease in cases of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant.
AP1 (Applicant): In Congo against Uganda, a case concerned with widespread human rights abuses by Ugandan forces on Congolese territory, the court again cited this passage from the wall case with specific approval.
AP1 (Applicant): The Inter-American Commission on Human Rights has been just as clear.
AP1 (Applicant): In court against the United States, the case relating to the United States' intervention in Grenada, the commission emphasized the primacy of human rights law.
AP1 (Applicant): It said, as a general matter, while the commission may find it necessary to look at the applicable rules of international humanitarian law when interpreting and applying the norms of the Inter-American human rights system, where those bodies of law provide levels of protection which are distinct, the commission is bound by its charter-based mandate to give effect to the normative standard which best safeguards the rights of the individual.
AP1 (Applicant): The U.N. General Assembly, the U.N. Human Rights Committee, the
AP1 (Applicant): U.N. Working Group on Arbitrary Detention, and the U.N. Special
AP1 (Applicant): Rapporteurs are all likewise consistent in their repeated statements that fundamental human rights are not displaced by situations of armed conflict.
AP1 (Applicant): In the words of the General Assembly in Resolution 2675, as long ago as 1970, it was said that such rights continue to apply fully in such situations.
AP1 (Applicant): The third and final point on this issue is that there is, in any event, no reason in principle why it is impossible to reconcile the application of IHL and the Convention.
AP1 (Applicant): Both regimes may bind the state in a conflict situation.
AP1 (Applicant): But that does not alter the fact that it is the Convention which this Court is obliged to apply by virtue of Article 19 of the Convention, and that absent a derogation, the Convention is not in any sense displaced.
AP1 (Applicant): That is the clear effect of the Grand Chamber's analysis in Al-Jadda, where it was held that only a Security Council resolution, which explicitly or implicitly required the U.K. to
AP1 (Applicant): place an individual into indefinite detention without charge, and so raised a mandatory conflict with the Convention, could have this displacement effect.
AP1 (Applicant): There is simply no basis for suggesting any such direct conflict here, or for concluding that IHL could create an obligation of a kind equivalent to a Security Council resolution.
AP1 (Applicant): In those circumstances, the simple, clear, principled answer to the inquiry as to the relationship between the two legal regimes is that while both regimes will apply to restrict the state, IHL cannot reduce the protection which would otherwise be available to the individual, or create a power of detention where otherwise there would be none.
AP1 (Applicant): As on the issue of jurisdiction, the Government's submission should be rejected as contrary to well-established jurisprudence, and as advocating a regional fragmentation of established international legal principles.
AP1 (Applicant): Finally, I would like to return to the facts.
AP1 (Applicant): I'll focus on three areas, Mr. Hassan's arrest, his release,
AP1 (Applicant): and the need for an investigation, and an independent investigation, into his fate.
AP1 (Applicant): First, the arrest.
AP1 (Applicant): The applicant has always maintained that Mr. Hassan was
AP1 (Applicant): detained because the applicant was an important figure in the Ba'ath Party, and because U.K. forces wished to encourage him
AP1 (Applicant): to surrender by detaining Mr. Hassan, who was his brother.
AP1 (Applicant): A neighbor of Mr. Hassan and both his sisters claimed that
AP1 (Applicant): they were informed that Mr. Hassan would only be released
AP1 (Applicant): if the applicant surrendered.
AP1 (Applicant): As against that evidence, the Government's case has been presented in an unsatisfactory and inconsistent manner.
AP1 (Applicant): It was originally contended that Mr. Hassan's arrest was a result
AP1 (Applicant): of mistaken identity.
AP1 (Applicant): That case did not arise from the recollection of any witness.
AP1 (Applicant): It appears to have been reconstructed by the Government from the documentary record, which at the point the argument was advanced was woefully incomplete.
AP1 (Applicant): The argument was first undermined by the disclosure in January of this year of a record of Mr. Hassan's interview at
AP1 (Applicant): Kambuka by American forces, which recorded in terms that he, and I quote, knows that he was brought in because of his brother.
AP1 (Applicant): That document shows, or at least bears the strong inference, that Mr. Hassan had been informed that he had been detained
AP1 (Applicant): because of his brother's importance and that this was also known to be the position by his interrogators.
AP1 (Applicant): The mistaken identity case was then utterly destroyed by the emergence in September of 2013 of the contemporaneous Black Watch document at GA3.
AP1 (Applicant): This document described Mr. Hassan's arrest and expressly
AP1 (Applicant): recorded that prior to detention Mr. Hassan had confessed that
AP1 (Applicant): he was the brother of the applicant.
AP1 (Applicant): The Government, of course, does not now pursue its mistaken identity case and argues on the basis of the reference in that same Black Watch document to Mr. Hassan as a gunman that he was
AP1 (Applicant): captured as a suspected combatant.
AP1 (Applicant): But this new fallback case is on analysis as weak as the mistaken identity case initially advanced.
AP1 (Applicant): First, the document on which it is based records a peaceful, and to use the words of the document, friendly operation in which coalition forces went from house to house, talking to locals and gathering information.
AP1 (Applicant): It does not record any attack or attempted attack by Mr. Hassan,
AP1 (Applicant): and it is hard to see how the U.K. forces can have suspected
AP1 (Applicant): him of being a combatant when there is no suggestion of any actual or even threatened combat.
AP1 (Applicant): Secondly, the document does not itself say that Mr. Hassan was
AP1 (Applicant): detained because of any combatant or suspected combatant status.
AP1 (Applicant): All it records is that he was the brother of an individual of some importance.
AP1 (Applicant): The most obvious inference is that he was detained because of that family connection.
AP1 (Applicant): Thirdly, the mere possession of a gun by Mr. Hassan in Iraq in
AP1 (Applicant): 2003 cannot suffice for a conclusion of combatant status.
AP1 (Applicant): The Handbook of International Humanitarian Law cited by the government in its own submissions notes in terms that many Iraqi individuals lawfully carry AK-47s.
AP1 (Applicant): Likewise, the Black Watch documentation itself records clerics lawfully traveling in the company of gunmen for security purposes, and the Black Watch Battalion releasing individuals on that basis.
AP1 (Applicant): Fourthly, not a single witness from the Black Watch Battalion said to have been responsible for Mr. Hassan's detention has
AP1 (Applicant): been interviewed, let alone presented to the court by the government.
AP1 (Applicant): Fifthly, the notes of Mr. Hassan's interview by American
AP1 (Applicant): forces bear no suggestion of any suspicion that he was a combatant.
AP1 (Applicant): On the contrary, they record in terms that he seems to be a good kid, innocent of anything himself.
AP1 (Applicant): As to the true reason for Mr. Hassan's detention, as I've
AP1 (Applicant): already said, these notes record instead that he knows he was brought in because of his brother.
AP1 (Applicant): They also state that he could know more about his brother's activities in the Ba'ath Party and some of his friends involved in the party.
AP1 (Applicant): Using any type of harsh approach is not going to be effective.
AP1 (Applicant): He will cooperate, but he needs someone he can trust if he's going to tell information about his brother that is going to harm him.
AP1 (Applicant): These observations are entirely consistent with the applicant's case that Mr. Hassan was detained because of some desire
AP1 (Applicant): to exploit his relationship to his brother, and are inconsistent with the government's case.
AP1 (Applicant): Sixthly, the notes of Mr. Hassan's interview by British
AP1 (Applicant): forces do not say anything about Mr. Hassan having been suspected
AP1 (Applicant): of being a combatant either.
AP1 (Applicant): On the contrary, they record that he was of no intelligence value, and the very heading of the documentation identifies him as a civilian from Basra.
AP1 (Applicant): Major X has explained that these notes would have been produced after sight of the capture card prepared by the detaining unit, a document which has still not been produced.
AP1 (Applicant): If that card had identified Mr. Hassan as a suspected combatant,
AP1 (Applicant): that would inevitably have appeared in these notes.
AP1 (Applicant): The fact that the notes identify him instead as a civilian strongly suggests that that is what the detaining unit recorded.
AP1 (Applicant): The result of all of this is that, as in Al-Jadda, none of the justifications for detention in Article V of the Convention are made out, and none of the procedural protections required by Article V were adhered to.
AP1 (Applicant): The government would, furthermore, be no better off, even if IHL were somehow to be read into Article V.
AP1 (Applicant): None of the justifications for detention provided by IHL are made out either.
AP1 (Applicant): It cannot be said that Mr. Hassan was a member of opposing
AP1 (Applicant): forces, representing a security threat, let alone that as a civilian, as the U.K.'s own documentation
AP1 (Applicant): describes him, some imperative reasons of security or absolute necessity was capable of justifying his detention.
AP1 (Applicant): Finally, as the Essex Human Rights Center intervention has observed, the detention of civilians as a bargaining chip is, of course, strictly prohibited and amounts to a grave breach of the Fourth Geneva Convention.
AP1 (Applicant): So far as Mr. Hassan's release is concerned,
AP1 (Applicant): the evidence as to when and how release occurred is, again, deeply unsatisfactory.
AP1 (Applicant): First, a record was apparently made on the British Armed Forces database on the 4th of May, 2003, asserting that he had been released shortly after midnight on the 2nd of May.
AP1 (Applicant): Secondly, the British Armed Forces made a further record on the 12th of May, recording that he was found to be absent and so was deemed to have been released on that day.
AP1 (Applicant): Thirdly, the database of the American Armed Forces, whom the U.K. government insists in these proceedings were in
AP1 (Applicant): control of the camp, did not record release until the 17th of May, 2003.
AP1 (Applicant): Fourthly, whenever Mr. Hassan was released,
AP1 (Applicant): it's not at all clear how the release was actually effected.
AP1 (Applicant): The government says that the 4th of May, 2003 record shows that he was released by coach to Umm Khazar, but there is an inconsistency in the documentation as to whether Umm Khazar was ever a drop-off point for detainees.
AP1 (Applicant): In any event, there is no evidence as to what, if any, arrangements were made to ensure Mr. Hassan could
AP1 (Applicant): return home safely from the drop-off point.
AP1 (Applicant): The circumstances in which he was found dead hundreds of miles away, without having contacted any member of his family in the meantime, and while still carrying his Camp Buka U.K.
AP1 (Applicant): I.D. tag, remain wholly unexplained.
AP1 (Applicant): Finally, I turn specifically to the need for an investigation.
AP1 (Applicant): The government has asserted that there is no breach of any investigative duty in relation to Mr. Hassan's fate,
AP1 (Applicant): because everything that could be done to investigate the matter has now been done.
AP1 (Applicant): There are a series of problems with that approach.
AP1 (Applicant): First, it was an assertion first made to this court in March of 2012, prior to the production of the U.S.
AP1 (Applicant): interview record supportive of Mr. Hassan's case,
AP1 (Applicant): prior to the production of a witness statement from the U.K.'s
AP1 (Applicant): interrogation team, and prior to the production of the Blackwatch document.
AP1 (Applicant): Secondly, it was only almost a year later, in January of 2013, that the report of the U.S. interrogation was produced.
AP1 (Applicant): That document, as I have submitted, was highly significant as undermining the suggestion that Mr. Hassan's arrest was a result of mistaken identity,
AP1 (Applicant): indicating that he knew he had been brought in because of his relationship to his brother, and showing that consideration was being given to the exploitation of that relationship.
AP1 (Applicant): Thirdly, it was only in March of this year that the government announced in a letter to the court that 10 years on, it was taking steps to trace the individuals who had questioned Mr. Hassan.
AP1 (Applicant): Fourthly, it was only in May of this year that the government then produced a witness statement from Major X.
AP1 (Applicant): At this point, the government admitted, frankly, having taken the view in February of 2012, that it had not appeared necessary to interview him.
AP1 (Applicant): Fifthly, in September of this year, the government, with its third round of submissions in these proceedings, produced highly significant new material, notably the heavily redacted Blackwatch document, upon which it now hinges its case as to the reason for Mr.
AP1 (Applicant): Hassan's detention.
AP1 (Applicant): Its explanation was that the new material had not been picked up in any previous searches.
AP1 (Applicant): But the Blackwatch document contains the name Kadeem Rehsan Hussan, the applicant's own name, with only slight variance and in block capitals.
AP1 (Applicant): That document obviously ought to have been picked up through the most basic of keyword searches at an earlier stage.