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Cite as: [2011] ECHR 1340
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FOURTH SECTION
Application no.
29750/09
by Khadim Resaan HASSAN
against
the United Kingdom
lodged on 5 June 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Khadim Resaan Hassan, is an Iraqi national who is currently living in Syria. He is represented before the Court by Mr P. Shiner of Public Interest Lawyers, Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s brother Tarek’s arrest, detention and death
The applicant is a former high ranking member of the Ba’ath Party from Um Qasr, in southern Iraq. His brother, Tarek Tessaan Hassan (henceforth, “Tarek”) was arrested by United Kingdom forces in Um Qasr on 22 April 2003 at around 4.30 a.m. The applicant believes that the soldiers were looking for him. However, the applicant was not at home when the United Kingdom military unit arrived and Tarek was arrested instead.
Tarek was taken by United Kingdom forces to Camp Bucca where he was entered on the UK’s AP3-Ryan computer system (see further below). He would probably have been issued with the detainee number UKDF018094IZMS; the “DF” denoting “detention facility”, the “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. He would have been issued with the number 018094 as his unique number generated by AP3-Ryan.
Tarek was also issued with the United States serial number UK91Z 107276EPW.46. The “United Kingdom” reference indicates that the United Kingdom was the capturing nation.
It is believed by the applicant that United Kingdom detainees at Camp Bucca were held in United Kingdom compounds within the Camp. Furthermore, another United Kingdom detainee has given uncontradicted evidence that Tarek was detained in the same compound as him in Camp Bucca. He also states that Tarek was not taken for interrogation, and it must be inferred that Tarek was not regarded as having any significant intelligence value.
The applicant and his family were not informed where Tarek was being detained. A neighbour of the applicant’s went to United Kingdom headquarters two days later at the Shatt-al-arab Hotel. He was told to come back in two days. When he did, he was told that the United Kingdom authorities were detaining Tarek until the applicant surrendered himself to them. Subsequently, the applicant’s sisters approached the United Kingdom military authorities and they were also told that the applicant would have to surrender himself before Tarek would be released. The applicant only learned that his brother was being detained at Camp Bucca when a friend of Tarek (who was also detained at Camp Bucca) was released and informed them that he had seen Tarek there.
An entry was made by a United Kingdom officer on AP3-Ryan on 4 May 2003 recording the “release” of Tarek on 2 May 2003. The releasing authority is stated to be “United Kingdom (ARMD) DIV SIG REGT”. The place of release is stated to be “Umm Qasr”.
A further entry was made in the United Kingdom system on 13 May 2003 recording the “release” of Tarek on 12 May 2003. The previous entry was deleted and replaced. The entry made on 13 May 2003 followed a search of the detention facility (presumably by United Kingdom officers) which revealed that, as recorded on AP3-Ryan, “PW [i.e. Tarek] was found to be absent from internment facility when 100% check was conducted”.
The United States computer system did not record any release until 17 May 2003 when the United States system was reconciled with a physical check or with the data held by the United Kingdom authorities.
On 1 September 2003 the applicant’s family received a telephone call from a person who was in Samara, north of Baghdad, and about 650 miles from Um Qasr. He informed them that locals outside the town in the countryside had found a dead man who had an identity tag on him and a piece of paper with their telephone number written on it. The applicant and other family members went to the morgue in Samara. There they found Tarek with 8 bullet wounds from a Kalashnikov rifle in his chest. Tarek’s hands were tied with plastic wire and had many bruises.
2. The detention regime at Camp Bucca
Camp Bucca was originally a United Kingdom detention facility, known as the 1st United Kingdom Divisional Collection Point (known locally as “Camp Freddie”). The facility was established on 23 March 2003, shortly after the invasion of Iraq commenced on 20 March. Camp Freddie was close to Um Qasr in south-eastern Iraq, where the United Kingdom was conducting its military operations.
From the onset of hostilities, United Kingdom detainees were processed and held at Camp Freddie. At that stage, detainees were invariably the subject of “Tactical Questioning” (interrogation) by the Joint Forces Interrogation Team. At this point it seems that the Joint Forces Interrogation Team section was a “camp within a camp” as, because it involved interrogation practices which are secret, it had its own guards. Those guards responsible for other Iraqi captured persons, such as Prisoners of War, would not enter the Joint Forces Interrogation Team compound. If a United Kingdom Prisoner of War or internee was to be interrogated it would be inside the separate Joint Forces Interrogation Team compound.
United States military authorities were building major internment facilities in Iraq and took over the running of Camp Freddie in April 2003. The facility officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. However, the United Kingdom’s use of the facility continued. The United Kingdom decided to continue to detain captured persons at Camp Bucca as a matter of operational convenience. It does not appear that any alternative provision for detention was considered to be necessary, certainly this was the position in relation to criminal detainees and Prisoners of War.
A separate area in Camp Bucca was designated to hold detainees captured by United Kingdom forces. The United Kingdom military had use of one or two compounds depending on operational requirements. At the same time the United Kingdom continued to operate a separate compound at Camp Bucca for the Joint Forward Interrogation Team.
In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, in March 2003 the United Kingdom, United States and Australian Governments entered a Memorandum of Understanding relating to the transfer of custody of detainees (see below). In practice, the arrangement operated in the following way in relation to Camp Bucca in April 2003, when Tarek was detained there.
Individuals arrested by United Kingdom forces were brought by the arresting unit to a temporary holding area at Camp Bucca. There they were processed by United Kingdom personnel and their details were entered on a United Kingdom military computer database operated at the camp, known as “AP3-Ryan”. A photo of the detainee was taken and held on AP3-Ryan. The United Kingdom arresting unit was responsible for preparing a capture report and a detention report. Any dispute about the paperwork would be resolved by United Kingdom personnel at Camp Bucca with the detaining unit.
The United Kingdom personnel at Camp Bucca would take the detainee’s possessions from him and give him a receipt. Medical treatment was given if required.
The detainees were issued with a unique United Kingdom detainee number and an identity bracelet. The United Kingdom military authorities at Camp Bucca distinguished between different categories of detainee and this was recorded in the details on their bracelet. By contrast all United States captured detainees were generally simply treated as prisoners of war.
After being processed by United Kingdom personnel, the detainees were then registered by United States military authorities. Because Camp Bucca had been designated an American facility, the United States authorities required each United Kingdom detainee held at Camp Bucca also to have a United States registration number. United Kingdom captured detainees were however issued a detainee number by United States authorities that distinguished them as a United Kingdom captured detainee. A United Kingdom detainee would therefore have two wrist bands with separate detainee numbers, both numbers identifying them as United Kingdom captured detainees.
If detainees were considered to have significant intelligence value, they would be taken to the United Kingdom Joint Forces Interrogation Team compound in Camp Bucca, and would be separated from other detainees for the purpose of interrogation. A person could remain at the Joint Forces Interrogation Team for anything between a few hours and a week. They would then be returned to the general population within the United Kingdom compounds.
The United States was responsible for guarding and escorting all detainees within the camp, including those in United Kingdom compounds. The United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at Camp Bucca.
The United Kingdom had a resident monitoring team at Camp Bucca which monitored the treatment of United Kingdom detainees held there “to ensure that appropriate standards were upheld”. British Military Provost staff had an overseeing responsibility for United Kingdom detainees. If United Kingdom detainees required medical treatment, and suitable medical treatment could not be provided at Camp Bucca, the United Kingdom military authorities would transfer the detainees to Shaibah where the United Kingdom military operated a hospital.
United Kingdom authorities liaised with the International Committee of the Red Cross and had meetings with them about treatment of detainees.
The United Kingdom remained responsible for the continuing internment and release of all United Kingdom captured detainees. The detention of United Kingdom captured detainees was reviewed at the United Kingdom Divisional Headquarters at Basrah Airport by a United Kingdom Divisional Review Committee that held weekly meetings. Criminal detainees would eventually have their cases transferred to Iraqi Courts, but for other detainees there was no process of judicial review of their detention. Military unit records would generally record no more information on persons detained than the number of persons arrested and passed on to detention.
Furthermore, under the terms of the Memorandum of Understanding the United Kingdom remained solely responsible for the classification of detainees under Articles 4 and 5 of the Geneva Convention relative to Prisoners of War.
The release process for United Kingdom detainees held at Camp Bucca at the relevant time was as follows. A tribunal of United Kingdom officers convened by United Kingdom legal officers decided who was to be released. Details of the prisoner who was to be released were passed to the United States guards. The prisoner was taken from the detention compound and his belongings returned to him. He was processed out of the camp and his details were checked by the United Kingdom officers against the photograph of the detainee on the AP3-Ryan database. Coaches were used to return released prisoners to central locations in the area in which they had been captured.
3. Correspondence with Treasury Solicitors and legal proceedings
The applicant went into hiding in Iraq and then crossed the border to Syria, where he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s solicitors (Treasury Solicitors) on 21 December 2006 requesting explanations for the arrest and detention of Tarek and the circumstances that resulted in his death. Treasury Solicitors responded by letter dated 11 January 2007 stating that there was “no evidence at present to suggest that UK forces detained Mr Hassan or were in any way responsible for his death, even if UK forces did initially arrest him (which is not admitted)”.
Following a further letter from the applicant’s solicitors dated 8 February 2007 enclosing eye-witness testimony of the arrest of Tarek and a copy of the identity tag found on his body, Treasury Solicitors replied by letter dated 2 March 2007, in which they stated that the United Kingdom military authorities had still been unable to confirm any of the allegations made by the applicant. The only information that they were able to supply was that contained on the United States military computer system. This showed only that “Tarek Resaan Hashmyh Ali” was registered at Camp Bucca on 23 April 2003 and released on 17 May 2003.
The letter also stated:
“As to the initial arrest of Mr Tarek Resaan Hashmyh Ali by UK forces, before his handover to US authorities, we have not at present been able to obtain any further information. We should emphasise that in April 2003 (when major combat operations had not yet ceased) there were 25,000 British troops in and around the Greater Basra area. Of those, approximately 5,000, across 15-25 different sub-units, would have been engaged in activities which could include search and arrest operations. As the situation was very fluid, no one particular unit was based in any one particular part of Basra. Moreover, unit records would generally record no more detailed information concerning individuals arrested than the number arrested and passed into detention. Further, a check of computer records in theatre has not found any information on the alleged arrest. We are not therefore at present in a position to say which members of UK forces were involved in the arrest of Mr Tarek Resaan Hashmyh Ali, nor the circumstances of that arrest. We should also make it clear that we have not found any evidence of arrest of a Mr Tarek Resaan Hassan (if he is a different person to Mr Ali).”
On 29 March 2007 Treasury Solicitors stated in a letter to the applicant’s solicitors that a further check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek from the United Kingdom authorities to the United States at Camp Bucca and which recorded his release on 12 May 2003 (a date that further checks proved to be wrong: see above).
The applicant commenced proceedings in the Administrative Court on 19 July 2007 seeking: (a) declarations in respect of breaches of his rights under Articles 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998; (b) damages; and (c) an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British Forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al Skeini, it could not be said that Tarek was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time, since Camp Bucca was not a United Kingdom military establishment.
The applicant was advised that an appeal would have no prospect of success.
B. Relevant instruments and reports
1. The Memorandum of Understanding
As mentioned above, in the light of the intention of the United Kingdom military authorities to hold detainees in United States military bases a Memorandum of Understanding was put in place between the United States, the United Kingdom and Australia. It was signed on 23 March 2003 and provided as follows:
“This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq.
The Parties undertake as follows:
1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law.
2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power.
3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees.
4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power.
5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.
6. The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.
7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over.
8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement.
9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power.
10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined.
11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction.
12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power.
13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement.
14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.”
2. The Report of the International Committee of the Red Cross of February 2004
In February 2004 the International Committee of the Red Cross made a report on the treatment by coalition forces of prisoners of war and other persons protected by the Geneva Conventions in Iraq during arrest, internment and interrogation (“the ICRC Report”). The ICRC Report relates to arrests that took place between March and November 2003, that is during the period when Tarek was arrested and detained. Camp Bucca was one of the internment facilities that was visited by the ICRC in the course of drawing up the report.
The purpose of the ICRC Report was stated to be to draw attention of the Coalition Forces to “a number of serious violations of International Humanitarian Law.” Among the “main violations” found, were brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury; absence of notification of arrest of persons deprived of their liberty to their families causing distress among persons deprived of their liberty and their families; excessive and disproportionate use of force against persons deprived of their liberty resulting in death or injury during their period of internment.
In the course of reporting its detailed findings, the ICRC report stated:
“6. ... Arresting authorities entered houses usually after dark, breaking down doors, waking up residents roughly, yelling orders, forcing family members into one room under military guard while searching the rest of the house and further breaking doors, cabinets and other property. They arrested suspects, tying their hands in the back with flexi-cuffs, hooding them, and taking them away. Sometimes they arrested all adult males present in a house, including elderly, handicapped or sick people. Treatment often including pushing people around, insulting, taking aim with rifles, punching and kicking and striking with rifles. Individuals were often lead away in whatever they happened to be wearing at the time of arrest - sometimes pyjamas or underwear - and were denied the opportunity to gather a few essential belongings such as clothing, hygiene items, medicine or eyeglasses. Those who surrendered with a suitcase often had their belongings confiscated, in many cases personal belongings were seized during the arrest, with no receipt being issued.
7. Certain CF military intelligence officers told the ICRC that in their estimate between 70% and 90% of persons deprived of their liberty in Iraq had been arrested by mistake...
1.1 Notification to families and information for arrestees
9. In almost all instances documented by the ICRC, arresting authorities provided no information about who they were, where their base was located, nor did they explain the cause of the arrest. Similarly, they rarely informed the arrestee or his family where he was being taken and for how long, resulting in de facto "disappearance" of arrestees for weeks or even months until contact was finally made.
11. 9 months into the present conflict, there is still no satisfactorily functioning system of notification to the families of captured or arrested persons, even though hundreds of arrests continue to be carried out every week. While the main places of internment (Camp Bucca and Abu Ghraib) are part of a centralised notification system through the National Information Bureau (and their data are forward electronically to the ICRC on a regular basis), other places of internment such as Mossul or Tikrit are not. Notification from those places therefore depend solely on capture or internment cards as stipulated by the Third and Fourth Geneva Convention.
Since March 2003 capture cards have often been filled out carelessly, resulting in unnecessary delays of several weeks or months before families were notified, and sometimes resulting in no notification at all. It is the responsibility of the detaining authority to see to it that each capture or internment card is carefully filled out so that the ICRC is in a position to effectively deliver them to families. The current system of General Information Centers (GIC), set up under the responsibility of the Humanitarian Assistance Coordination Centers (HACC), while an improvement remains inadequate, as families outside the main towns do not have access to them, lists made available are not complete and often outdated and do not reflect the frequent transfers from one place of internment to another. In the absence of a better alternative, the ICRC capture cards remains the most reliable, prompt and effective system to notify families provided cards are properly filled out.
The ICRC has raised this issue repeatedly with the detaining authorities since March 2003, including at the highest level of the CF in August 2003. Despite some improvement, hundreds of families have had to wait anxiously for weeks and sometimes months before learning of the whereabouts of their arrested family members. Many families travel for weeks throughout the country from one place of internment to another in search of their relatives and often come to learn about their whereabouts informally (through released detainees) or when the person deprived of his liberty is released and returns home.
12. Similarly, transfers, cases of sickness at the time of arrest, deaths, escapes or repatriations continue to be notified only insufficiently or are not notified at all by the CF to the families in spite of their obligation to do so under International and Humanitarian Law.”
The ICRC Report stated that the normal practice at Camp Bucca during the period that Tarek was arrested and detained involved detainees being hooded, beaten and humiliated. The ICRC Report records:
“30. Initially, inmates were routinely treated by their guards with general contempt with petty violence such as having orders screamed at them and being cursed, kicked, struck with rifle butts, roughed up or pushed around. They were reportedly handcuffed in the back and hooded for the duration of the interrogation and were prohibited from talking to each other or to the guards. Hooding appeared to be motivated by security concerns as well as to be part of standard intimidation techniques used by military intelligence personnel to frighten inmates into cooperating. This was combined with deliberately maintaining uncertainty about what would happen to the inmates, and a generally hostile attitude on the part of the guards.”
The section of the ICRC Report concerned with the excessive and disproportionate use of force against persons deprived of their liberty by the detaining authorities recounted two shooting incidents at Camp Bucca that had actually been witnessed by ICRC delegates. The first was in mid April 2003. Three shots were fired by an officer seemingly in a bid to aid another officer who was “allegedly being threatened by a prisoner of war armed with a stick”. One detainee was killed, another received a bullet wound. A second incident occurred in September 2003. Following unrest in a section of the camp, a detainee who was “allegedly throwing stones” was fired upon from a watchtower, was shot in the chest and killed. An investigation concluded that the use of force was justified. The ICRC disagreed:
“An ICRC delegate and interpreter witnessed most of the events. At no point did the persons deprived of their liberty, and the victim shot at, appear to pose a serious threat to the life or security of the guards who could have responded to the situation with less brutal measures. The shooting showed a clear disregard for human life and security of the persons deprived of their liberty.”
The ICRC concluded that in all cases less extreme measures could have been used to quell demonstrations or neutralise the persons deprived of their liberty.
Furthermore, the ICRC also reported abuse of detainees prior to arrival at detention facilities. It recorded that in May 2003 it sent to the Coalition Forces a memorandum based on over 200 allegations of ill-treatment of prisoners of war during capture and interrogation at collection points, battle group stations and temporary holding areas. The allegations were consistent with marks on the bodies of the complainants observed by the medical delegate.
COMPLAINTS
The applicant complains under Article 5 §§ 1, 2, 3 and 4 of the Convention that his brother’s arrest and detention were arbitrary and unlawful and lacking in procedural safeguards. The applicant also complains of a failure to carry out an investigation into the circumstances of the detention, ill-treatment and death, in breach of Articles 2, 3 and 5.
QUESTIONS TO THE PARTIES