In this regard, it can be noted, as a preliminary point, that the Court had to determine whether the case fell within the ambit of the Convention and thus whether, with respect to the concrete circumstance of the case, the Convention could be said to apply extraterritorially.
According to the UK representatives, the fact that the conduct of States is exclusively regulated by IHL during the active hostilities phase of an international armed conflict that does not amount to an occupation precluded that their detention operations fell within their jurisdiction for the purposes of Article 1 ECHR. Unconvinced by these arguments, the Court, again unanimously, found that Tarek Hassan fell within the jurisdiction of the UK from the moment of his capture until his release, and rightly so.
As the list of grounds of permissible detention in Article 5 ECHR does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time, the applicant had argued that absent any derogation under Article 15 ECHR the UK had violated its international commitments under the European Convention on Human Rights by interning Tarek Hassan.
Whereas the Court had unanimously decided on earlier issues, this vexing and complex subject caused a rift amongst the judges as they could not agree on the correct legal approach.
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From this, the majority deduced that States do not consider Article 5 ECHR to prohibit lawful internment during armed conflict, even though it does not feature on the list of grounds of permissible detention, and consequently stipulated that the Convention should be interpreted as such, making any derogation redundant. Second, and building on this argument, the majority pointed to the doctrine of consistent interpretation of the ECHR with other norms of international law, well established in previous case law, and postulated that:.
Second, while acknowledging that the Court must endeavour to interpret and apply the Convention in a manner that is consistent with international law, the dissenting judges argued at the same time that the majority had overstepped the boundaries of treaty interpretation and had ventured into the domain of treaty amendment, a prerogative of States. Article 5 ECHR was, after all, worded exhaustively and had in the past consistently been interpreted narrowly by the Court, which allowed for no other grounds for detention than those explicitly listed in subparagraphs a to f.
In the end, they concluded that:. The decision in Hassan v United Kingdom touches upon one of the most controversial and complex issues in contemporary international law discourse, namely the relationship and interplay between norms of IHL and HRL. Regardless of whether one tends to agree with the majority — as the present writer does — or is inclined to side with the dissenting judges, the mere fact that the Court is tackling this issue head-on is commendable in and of itself.
While it, on the one hand, had adopted a more generous approach with regard to the extraterritorial application of the ECHR and as such, had extended the reach of the Convention to apply i. Hereby, it created confusion on how the norms of HRL relate to conflicting ones of IHL and should be applied together.
Additionally, by looking at armed conflict-related cases unequivocally from a human rights perspective, the Court was accused of judicial imperialism, 10 or at least, of ignorance of the cumulative effect its earlier decisions had on the freedom to conduct military operations. In this sense, the decision may prove to be instructive and take away some of the confusion on how the human rights obligations of the State Parties of the ECHR translate to armed conflict situations. Accepting this position would have rendered any reference to human rights entirely obsolete, since it implied the total displacement of the Convention in times of armed conflict.
Such an argument could not be maintained in the light of the widespread acceptance by judicial and quasi-judicial human rights bodies of the idea that HRL does not cease to apply during armed conflict. Regarding the interpretation of Article 5 ECHR, accepting the argument regarding lex specialis would have been erroneous as well, since the maxim cannot be considered a sound and suitable legal technique to refer to when discussing questions of the interplay between the norms of these two spheres of law.
In summary, it is the view of this author that the Court came up with a nuanced, well-balanced solution to an old and heavily disputed issue. Having graduated from the LL.
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Kristin WU graduated B. She was also one of the nine finalists at the Inaugural Benjamin B. Ferencz International Essay Competition. Kristin has published articles in journals and books, and has presented at various conferences. Her research interest covers international criminal law, human rights, environmental law, sustainability governance as well as science, technology and innovation policy.
He won a National Scholarship in and was selected as a role model in by Ministry of Education of China. She has participated as a team member in the national round of the Philip C.
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She has a passion for human rights and criminology and is interested in academia and continuing her work in the field of humanitarian affairs. She gained a B.
IHL and human rights
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ZHANG Kangle holds a bachelor's degree in international politics from Peking University, specializing in international relations and international organizations. Part E Specific Situations. Part C Issues of Implementation.
Giovanni Carlo Bruno. Conclusions Roberta Arnold. She has served as legal adviser within the Swiss Department of Defense, Staff to the Chief of the Armed Forces, Section Laws of Armed Conflict and as research assistant of public international law and international criminal law at the University of Bern, Switzerland, under the supervision of Prof.