TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): And it would have been picked up in any event if the government had looked through the documents it held in relation to operations on the relevant day.
AP1 (Applicant): Sixthly, on the 2nd of December, 2013, less than two weeks ago, the government disclosed a copy of the same Blackwatch document with fewer redactions.
AP1 (Applicant): It has explained the meaning of the remaining redactions by saying that they are necessary in the interests of national security.
AP1 (Applicant): Whether or not the still redacted material is relevant to Mr. Hassan's fate, or any issues in this case,
AP1 (Applicant): remains unexplained.
AP1 (Applicant): And seventhly, as I've already said, even now, there has been no attempt to take statements from any of the Blackwatch unit responsible for the detention operation at the heart of this case.
AP1 (Applicant): It's clear from all of this that when the government says that it is confident that it now has an accurate understanding of the relevant facts, the court should proceed with considerable caution and should bear in mind that it is not the first time that the government has had that confidence and that it has in the past proved to be misplaced.
AP1 (Applicant): Six core factors remain at the heart of this case.
AP1 (Applicant): First, Mr. Hassan was a civilian and was not, in fact,
AP1 (Applicant): an enemy combatant of any kind.
AP1 (Applicant): Secondly, he was taken into custody by the U.K.
AP1 (Applicant): in April of 2003.
AP1 (Applicant): Thirdly, his body was found months later with his hands tied and with him still in possession of a Camp Buca identity tag.
AP1 (Applicant): Fourthly, the documentary record as to the reasons for his detention and the timing of his release are inconsistent.
AP1 (Applicant): Fifthly, his neighbors and relatives, now supported in their account by contemporaneous United States documentation, were told that the initial motivation for his detention was a desire to pressurize his brother into surrender.
AP1 (Applicant): And, sixthly, there has been no independent investigation into what occurred.
AP1 (Applicant): Mr. President, that state of affairs would be as
AP1 (Applicant): unsatisfactory and unjustifiable under IHL as it is under the convention which this court is bound to apply.
AP1 (Applicant): And against that background, the court is invited to uphold each of the applicant's complaints made and to grant him the relief sought.
Dean Spielmann (JudgeP): Thank you Mr. Otty. I now turn to the judges if there are questions.
Dean Spielmann (JudgeP): Judge Yudkivska please.
Ganna Yudkivska (Judge): Thank you, Mr. President.
Ganna Yudkivska (Judge): I have questions to the government.
Ganna Yudkivska (Judge): First of all, on the facts, I understand that Camp Bucca was U.S.-run camp.
Ganna Yudkivska (Judge): But yet, I will need clarification which state, the United Kingdom or the United States, or a combination of the two, was ultimately responsible for determining Tarek's status, the legality of his detention, and for ordering his release.
Ganna Yudkivska (Judge): My second question is again for the government, and this time on the law.
Ganna Yudkivska (Judge): In the case of person interned as a prisoner of war or as a civilian giving rise to a threat to security in the context of an international art conflict, should the requirements of Article 5 of the Convention be qualified or displaced by the provisions of third or fourth conventions?
Ganna Yudkivska (Judge): What is the meaning of displacement or qualification in this context?
Ganna Yudkivska (Judge): And to what extent, if at all, should the safeguards under Article 5, paragraph 1, 2, and 4 continue to apply?
Dean Spielmann (JudgeP): Thank you, Judge Ziemele.
Ineta Ziemele (Judge): Thank you, Mr. President.
Ineta Ziemele (Judge): As a follow-up to the questions by Judge Yudkivska, the question to the government that the applicants may want to comment as well.
Ineta Ziemele (Judge): First, as to your thesis that the convention is displaced in the context of armed conflict, what value do you attribute to the International Courts of Justice statement of principle in the Wall advisory opinion, as repeated subsequently in a number of judgments?
Ineta Ziemele (Judge): And what is the government's position as to whether this court should take an inspiration in those principles as identified by the ICJ?
Ineta Ziemele (Judge): And that concerns the relationship between international humanitarian law and human rights law.
Ineta Ziemele (Judge): That's the first question.
Ineta Ziemele (Judge): The second question, if the government would be so kind to point out in terms of Geneva Convention No. 3 and in terms of Article 4, the groups of combatants, to which group would
Ineta Ziemele (Judge): you attribute Mr. Hassan exactly?
Ineta Ziemele (Judge): Then as concerns the release, exactly the facts surrounding a release of Mr. Hassan,
Ineta Ziemele (Judge): would you explain these discrepancies in various records?
Ineta Ziemele (Judge): We indeed have several dates, 2nd May, 12 May, 17 May.
Ineta Ziemele (Judge): How does it happen that there is no – one clear record on the release?
Ineta Ziemele (Judge): How does it happen that it is still uncertain which drop-off point exactly was he – well, dropped off?
Ineta Ziemele (Judge): And do you consider that this lack of precision in the records is compatible with the principle under Geneva Convention No. 4, which requires to provide for safe release of civilians if
Ineta Ziemele (Judge): Mr. Hassan is to be presumed a civilian?
Ineta Ziemele (Judge): And finally, a small question.
Ineta Ziemele (Judge): You are also aware that under Article 106 in Geneva Convention No. 4, there is an obligation
Ineta Ziemele (Judge): to have the internees to make them contact their family, and there is also an information that, well, an independent body such as ICRC is informed of the presence of the particular internee.
Ineta Ziemele (Judge): Could you provide the Court with an information what happened exactly in the case of Mr. Hassan
Ineta Ziemele (Judge): in terms of contacts with the outside world, the outside institution?
Ineta Ziemele (Judge): Thank you very much.
Dean Spielmann (JudgeP): Judge Mahoney, please.
Paul Mahoney (Judge): Thank you, Mr. President.
Paul Mahoney (Judge): I have three questions.
Paul Mahoney (Judge): First of all, two questions on the fact that are addressed to the government.
Paul Mahoney (Judge): Number one question, the government have informed the court that the military order in force at the relevant time called for a two-stage screening process for prisoners claiming to be innocent civilians with an initial interview to determine civilian status, and then a second interview to determine whether there were grounds to suspect that the person concerned was a security risk or a criminal risk.
Paul Mahoney (Judge): Well, did the two interviews carried out in respect of Tarek Hassan correspond to this two-stage process?
Paul Mahoney (Judge): Was it normal practice for one interview to be carried out by United States agents and one interview by the second one by United Kingdom agents?
Paul Mahoney (Judge): And if not, why did this take place in Tarek Hassan's case?
Paul Mahoney (Judge): The second question on the facts is, was Tarek Hassan detained in a compound specifically set aside for United Kingdom detainees at any stage while he was at Camp Bucca?
Paul Mahoney (Judge): Third question I have is a question on the law, and it is addressed to both parties.
Paul Mahoney (Judge): The question is, do the terms of Article 15 of the convention allow a state to derogate from its obligations under Article 5 in the context of an international armed conflict, such as the military intervention in Iraq?
Paul Mahoney (Judge): And would it be necessary for a state formally to lodge such a derogation in order for the court to interpret Article 5, so as to take account of the context and also of the applicable norms of international humanitarian law?
Paul Mahoney (Judge): Those are my three questions.
Dean Spielmann (JudgeP): Thank you, Judge Mahoney.
Dean Spielmann (JudgeP): Judge López Guerra.
Luis López Guerra (Judge): Thank you. Only one question to the government concerning the circumstances of the release
Luis López Guerra (Judge): of Mr. Tarek Hassan on some date on the month of May of 2003. I see that in the observations
Luis López Guerra (Judge): of the government in page 15, the government concerning the place of release gives two alternatives, either Umm Qasr or Basrah. Well, there is some difference because Umm
Luis López Guerra (Judge): Qasr was the home of Mr. Tarek Hassan, it's two and a half kilometers from Camp Bucca, and
Luis López Guerra (Judge): Basrah is 50 kilometers north, a dangerous place. Would it be possible for the government
Luis López Guerra (Judge): to maybe to ask some additional clarification of where was it released, in which one of these two places, or give some brief accounting of what was the usual proceeding for release?
Luis López Guerra (Judge): I mean, where the prisoners were transferred to Iraqi authorities, or where they transferred to some ONG or the Red Cross, or where they just left in some village or some highway.
Luis López Guerra (Judge): I think that could be interesting information. Thank you.
Dean Spielmann (JudgeP): Judge Nußberger, please.
Angelika Nußberger (Judge): I would also just have one question about concrete detail.
Angelika Nußberger (Judge): The applicants submit that Tarek Hassan was found, his body, his dead body was found, and he still had the ID, the UK ID tag in his pocket.
Angelika Nußberger (Judge): So what was the practice of the British forces with ID tags as soon as they released prisoners?
Angelika Nußberger (Judge): Were the ID tag usually taken away?
Angelika Nußberger (Judge): What was done with a United States ID tag?
Angelika Nußberger (Judge): What was the practice there?
Dean Spielmann (JudgeP): Thank you, Judge Paulo de Albuquerque.
Paulo Pinto de Albuquerque (Judge): Thank you, Mr. President.
Paulo Pinto de Albuquerque (Judge): My question is addressed to the applicant.
Paulo Pinto de Albuquerque (Judge): What does the applicant think about Baroness Hale's remark in Al-Jedda that international humanitarian law does not displace international human rights law, but it qualifies international human rights law, in the sense that restrictions to the European Convention rights can be applied that are not foreseen in the European Convention?
Paulo Pinto de Albuquerque (Judge): And insofar, the courts, these courts, we need is limited to control of the exercise of proportionality in the application of these rights.
Paulo Pinto de Albuquerque (Judge): And my second question, also addressed to the applicant, is about to remark that the civilian was used as a bargaining chip, a bargaining instrument.
Paulo Pinto de Albuquerque (Judge): I would like you to elaborate a little bit further on this topic.
Paulo Pinto de Albuquerque (Judge): What is, in substance, the evidence that you can produce before us to sustain this statement?
Paulo Pinto de Albuquerque (Judge): Thank you.
Dean Spielmann (JudgeP): Thank you, Judge Pinto de Albuquerque.
Dean Spielmann (JudgeP): I have myself two questions to both parties, but more specifically also to the respondent government.
Dean Spielmann (JudgeP): We received on the 9th of September this year observations on the admissibility and merits, and in particular, Annexes A and B.
Dean Spielmann (JudgeP): Now, Annex B contains proposed additions to statements of facts and incorporates corrections at Annex A together with further facts upon which the applicant proposes to rely.
Dean Spielmann (JudgeP): Now, I understand that the additions are highlighted by track changes.
Dean Spielmann (JudgeP): And I would like to refer to paragraph 18 of the amended version, where the applicant says that the government provided the court with a copy of a record of the interview of the 23rd of April, and then which was available to and may have been seen by UK soldiers.
Dean Spielmann (JudgeP): Now, I understand that this allegation is disputed, if I have read carefully the observations of the government.
Dean Spielmann (JudgeP): But in this record of the interview, we read, and the applicant's lawyer referred to it already, that the enemy prisoner of war knows that he was brought in because of his brother Resaan.
Dean Spielmann (JudgeP): And further down, we read that the EPW could know more about his brother's activities in the Ba'ath Party and some of his friends involved in the party, too.
Dean Spielmann (JudgeP): Using any type of harsh approach is not going to be effective.
Dean Spielmann (JudgeP): The EPW loves his family and so on.
Dean Spielmann (JudgeP): EPW 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.
Dean Spielmann (JudgeP): Now, I would like both parties to comment on that.
Dean Spielmann (JudgeP): My second question is connected to the statement made by the government.
Dean Spielmann (JudgeP): The government relied on the case of Al-Saadoon, the judgment of the 2nd of March, 2010, and in particular to paragraph 41 of this judgment to submit that the United States, the American forces, did run the facility at Camp Bucca.
Dean Spielmann (JudgeP): Do I understand you well that you do rely on paragraph 41 as authority of our court to say that in connection with Camp Bucca, the UK did not fall within the jurisdiction of the United Kingdom?
Dean Spielmann (JudgeP): If you could be precise on that paragraph, please.
Dean Spielmann (JudgeP): So there are no further questions.
Dean Spielmann (JudgeP): So there will now be a break of 20 minutes, generous 20 minutes.
Dean Spielmann (JudgeP): The hearing is resumed, Mr. Eadie
GR1 (Government): Mr. President, members of the court,
GR1 (Government): we've got a lot of questions in a short time.
GR1 (Government): I will do the best I can to try and answer them.
GR1 (Government): Some of them we may need to check some parts of those questions to try and make sure you have as accurate information as we can possibly give you.
GR1 (Government): Some of them, particularly in relation to one question asked by Judge Marnie, may be rather above my pay grade in terms of committing a UK to a particular position on derogation.
GR1 (Government): So I may need to check back at head office about that as well.
GR1 (Government): But if I can just simply go through the questions and try and weave in whatever reply I have points there, I'll do that if I may.
GR1 (Government): Mr. Judge Trycowski asked, first of all,
GR1 (Government): about the question of whether or not the UK and the US shared responsibility for status and release.
GR1 (Government): I'm told that there was, indeed, some shared responsibility is the short answer to that question.
GR1 (Government): We dealt with that point in some detail in our initial observations before the fourth section of the 6th of March, 2012.
GR1 (Government): I'm sorry for referring to those, but we've tried very hard in our grand chamber observations to restrict our answers and our observations to the questions asked by the court.
GR1 (Government): Some of these points of detail, therefore, were dealt with in the earlier observations.
GR1 (Government): The reference, I'm sure you have them on file.
GR1 (Government): If not, we can provide another copy.
GR1 (Government): But the reference to those obs for this purpose is paragraphs 44 to 55.
GR1 (Government): But the short answer is there was some shared responsibility.
GR1 (Government): And that's obviously a point of some relevance when you come to consider, which I'm sure underlies the question, whether or not there was full and exclusive control in the UK of that camp.
GR1 (Government): But I accept that there was some shared responsibility for both of those matters.
GR1 (Government): The next and second question related to the law, which was whether or not when a person was detained for security reasons, should Article V be qualified by GC3 and GC4, and what did that mean?
GR1 (Government): I've to some extent made the submissions I wanted to make on that in my opening remarks.
GR1 (Government): We do submit as our primary case that there was displacement, by which I mean IHL as the tailored and suitable set of norms governing detention and release are the applicable body of law for good reason of principle.
GR1 (Government): But my alternative submission, as you will recall, is even if that is not accepted, we do have the alternative position which says make Article V work to the extent you can to cover this sort of context.
GR1 (Government): The one point on which the principles become very difficult to submit is if you try and overlay Article V so as to create in effect inconsistency or unsatisfiable requirements for this sort of context.
GR1 (Government): That's the real concern of principle we have.
GR1 (Government): But there are a variety of ways of achieving that.
GR1 (Government): Now, as I say, I fully recognize the court's case law on Article V, which, for example, in relation to V1 says these restricted bases on which detention might be lawful are restricted and are to be interpreted narrowly.
GR1 (Government): So there may be limited scope to where you can go on that.
GR1 (Government): But as I say, my fundamental submission on Article V is that it would be incoherent in principle and thoroughly damaging to end up in a place where a state, any Council of Europe state, is involved in military action of this kind abroad, can legitimately under the applicable international law kill someone, but cannot detain because there is no basis.
GR1 (Government): That would be an absolutely bizarre position of principle we respectfully submit.
GR1 (Government): Those are the two questions from Judge Tryckowska.
GR1 (Government): Judge Ziamiti's questions, the first one related to what value should be placed by the court on the ICJ's statements of principle in the Wall case and other cases.
GR1 (Government): What inspiration does the court take from that?
GR1 (Government): I make it absolutely clear that I'm not at all submitting that the court shouldn't take thorough inspiration from what the ICJ does.
GR1 (Government): It is a well-established principle of the convention case law.
GR1 (Government): Indeed, it's a principle upon which we positively rely, that you should have regard in interpreting the convention to international law norms established by bodies such as the ICJ.
GR1 (Government): My fundamental point of principle is that if you are seeking to achieve harmony between all the various systems of law, that does require a context-specific analysis.
GR1 (Government): And so we don't say you shouldn't take inspiration from those judgments.
GR1 (Government): You certainly should do.
GR1 (Government): What we say about those judgments is that they are not authority for the proposition that in no circumstances can IHL be treated as the lex specialis.
GR1 (Government): They are simply authority for the more general proposition that as a general matter, one doesn't end up in a situation where IHL will automatically displace all the provisions of whatever human rights instrument might be applicable.
GR1 (Government): Non sequitur, that the principle that those cases stand for, is that you can never have a lex specialis derived from IHL.
GR1 (Government): That's our submission.
GR1 (Government): So take inspiration by all means, but recognize the generality of the principle which is expanded.
GR1 (Government): A second question related to GC3, which groups of combatants identified in Article 4 of GC3 did Mr. Hassan fall into?
GR1 (Government): And the answer to that is any or all of them.
GR1 (Government): And I don't mean that flippantly.
GR1 (Government): He was suspected of a point of his detention and capture.
GR1 (Government): The soldiers on the ground simply couldn't make that sort of judgment.
GR1 (Government): That's why he was taken back to Camp Bucca for the status to be properly considered by those who knew the relevant and detailed legal norms and could make those judgments.
GR1 (Government): You could not possibly have a situation where soldiers on the ground conducting this sort of operation were required to make those detailed, nuanced legal judgments.
GR1 (Government): They saw a man in a house of a person they believed to be a general of the Al-Quds Army with an AK-47 assault rifle on a roof.
GR1 (Government): And in those circumstances, it's entirely unsurprising, we respectfully submit, that they didn't say, well, hang on a second, which particular paragraph within Article 4 of GC3 are we arresting this person on?
GR1 (Government): They're soldiers from the Black Watch responding to a military environment.
GR1 (Government): They properly took him into custody on that basis.
GR1 (Government): And decisions were thereafter made by those who were qualified to make those sort of legal status judgments.
GR1 (Government): The third question related to release and the facts of release and pointed out, as I think one of the other judges' questions also did, that there are discrepancies or some discrepancies in amongst the contemporaneous records, both in relation to the precise date of release and also in relation to the precise location of release.
GR1 (Government): I think it was Judge Lopez-Guerra's question about precise location pointing out that it may be a matter of some importance because Unkazar is relatively close and might be thought to be relatively less dangerous.
GR1 (Government): The position so far as those records are concerned is that there are some discrepancies between the contemporaneous records.
GR1 (Government): That, I'm afraid, also was a matter that we dealt with in a little detail in our observations before the fourth section.
GR1 (Government): The relevant paragraphs are 44 to 55 to try to explain how it was that those records came about.
GR1 (Government): To take an example, the reference to the 17th of May date being the date for release was as explained in those observations because on that date, a separate sweep through the camp was made and a check was done on who was and who wasn't there, and a record was created on that date.
GR1 (Government): But that's the detail of it.
GR1 (Government): The detail, as I say, we've tried to explain in those paragraphs of those observations before the fourth section.
GR1 (Government): But the reality is that there are some differences.
GR1 (Government): My submission to you is that although there are some differences, there are differences which in truth do not centrally impact.
GR1 (Government): And it comes to the tail end of the third question, which is effectively to ask GC for safe release.
GR1 (Government): Can you really have safe release when you have discrepancies in the contemporaneous records, which I fully understand appears to be the underpinning for that raft of questions.
GR1 (Government): And my answer to it is an unequivocal yes.
GR1 (Government): It's a yes because although there are those discrepancies, which we frankly acknowledged in our observations, none of those touch the core of it.
GR1 (Government): And the core of it here is that it doesn't matter for the purpose of the Article 2, Article 3, or Article 5 arguments, where the release happened on 2, 10, 12, or 17th of May.
GR1 (Government): All the contemporaneous records are clear that by mid-May, release had occurred.
GR1 (Government): And it's that fact, uncontroversial, uncontroverted upon which we rely to say, well, if you've got release on that date, how is the UK then responsible four months later, 600 miles away, and so on?
GR1 (Government): So we do acknowledge the discrepancies.
GR1 (Government): Just to come briefly to Judge Lopez-Guerra's question about precise place of release, again, in those paragraphs of our observations before the fourth section, we do come off the fence, if I can put it that way.
GR1 (Government): At least to this extent, there are screenshots of release data, I think, for the two dates, the 2nd and the 12th or the 17th.
GR1 (Government): And both of those list Umm Qasr as the place of release.