QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of
Khadhim Resaan HASSAN
|- and -
|SECRETARY OF STATE FOR DEFENCE
Mr Pushpinder Saini QC and Mr Parishil Patel (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 19 & 20 January 2009
Crown Copyright ©
Mr Justice Walker :
Factual aspects relevant to the main question
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 return 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.
Procedural history and grant of permission
Argument and analysis of the legal principles
(i) where the State, through effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of the territory, exercises all or some of the public powers normally exercised by the government of that territory;
(ii) cases involving the activities of its consular agents abroad and on board craft and vessels registered in, or flying the flag of that state [where] customary international law and treaty provisions have recognized the extra-territorial exercise of jurisdiction;
(iii) certain other cases where a state's responsibility "could in principle be engaged because of acts…which produced effects or were performed outside their territory.
71. The decision in Bankovic shows, accordingly, that an act which would engage the Convention if committed on the territory of a contracting state does not ipso facto engage the Convention if carried out by that contracting state on the territory of another state outside the Council of Europe. The necessary jurisdictional link is present in the one case, but not in the other.
76 Another major unresolved difficulty with the decision in Issa is that it is hard to reconcile with the European court's description of the vocation of the Convention as being "essentially regional" and of the Convention operating "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states": Bankovic, … para 80. The Convention, the court continued, was not designed to be applied throughout the world, even in respect of the conduct of contracting states. In Issa, as the court records in paras 56 and 57 of its judgment, the Turkish government had advanced an argument based on precisely this aspect of the decision in Bankovic.
77 The European court rejected that argument … There is, of course, no difficulty in seeing that Iraq does not fall within the legal space of the contracting states. It follows that application of the Convention in any area of Iraq controlled by Turkey could not be justified by the need to avoid a gap or vacuum ("lacunas or solutions of continuity" in the French text) in the protection of human rights in a territory which, but for the specific circumstances, would normally be covered by the Convention: Bankovic, … para 80. But in Issa the European court did not say that it was taking that protection a stage further. The difficulty therefore is in seeing how the deceased would have fallen within the legal space of the contracting states if, as was certainly indicated in Bankovic, the Convention was meant to operate in an essentially regional context and not throughout the world, "even in respect of the conduct of contracting states".
78 The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic, … para 80, the court had "so far" recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.
79 The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in section 1 of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims' rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothing—to adopt the words of Sedley LJ  QB 140, 300, para 197. The European court quite specifically rejected that line of argument. The court held, [in] para 75, that the obligation in article 1 could not be "divided and tailored in accordance with the particular circumstances of the extraterritorial act in question". In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention.
The point is this: except where a state really does have effective control of the territory, it cannot hope to secure the Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes farther than that. During the period in question here it is common ground that the UK was an occupying power in Southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant 'shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.' The appellants argue that occupation within the meaning of the Hague regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants' obligation is to respect 'the laws in force', not to introduce laws and the means to enforce them … such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.
Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 91, is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.
I would only observe that any extraterritorial jurisdiction of one state is pro tanto a diminution or invasion of the territorial jurisdiction of another, which must lead one to the conclusion that such extraterritorial jurisdiction should be closely confined. It clearly exists by international customary law in respect of embassies and consulates. It has been conceded by the Secretary of State that it extends to a military prison in Iraq occupied and controlled by agents of the United Kingdom. Once one goes past these categories, it would in my opinion require a high degree of control by the agents of the state of an area in another state before it could be said that that area was within the jurisdiction of the former. The test for establishing that is and should be stringent, and in my judgment the British presence in Iraq falls well short of that degree of control.
With respect this was a misconceived reading of their Lordship's decision. It is impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions I have set out, and indeed, that of the last two, as I shall explain.
… If a State party is to exercise Article 1 jurisdiction outside its own territory, the regional and indivisible nature of Convention rights requires the existence of a regime in which that State enjoys legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights- rights which may, however, in the territory in question, represent an alien political philosophy.
The ECHR's natural setting is the espace juridique of the State Parties; if, exceptionally, its writ is to run elsewhere, this espace juridique must in considerable measure be replicated. In short the State Party must have the legal power to fulfil substantial governmental functions as a sovereign State. It may do so within a narrow scope, as in embassy, consulate, military base or prison; it may, in order to do so, depend on the host State's consent or the mandate of the United Nations; but however precisely exemplified, this is the kind of legal power the State must possess, it must enjoy the discretion to decide questions of a kind which ordinarily fall to a State's executive government. If Article 1 jurisdiction is held to run in other circumstances, the limiting conditions imposed by the four propositions I have set out will be undermined.
Application of my analysis to the facts
(1) Under Article 9 the detaining power has sole responsibility for the classification under Articles 4 & 5 of the Geneva Convention relative to the treatment of prisoners of war of potential prisoners of war captured by its forces. In practical terms the detaining power can ensure that its classification is given effect, for under Article 6 it has full rights of access and under Article 4 it can require that the accepting power immediately return the person in question.
(2) However, under Article 2 the accepting power is responsible for maintaining and safeguarding those individuals whose custody has been transferred to them. Under Article 7 it is the accepting power which is responsible for the "accurate accountability" of those transferred. While under Article 8 the detaining powers are to assign liaison officers to the accepting powers, this is only "in order to facilitate the implementation of this arrangement." Article 12 assigns "primary jurisdiction" to the accepting power in relation to "breaches of disciplinary regulations and judicial offenses" allegedly committed after transfer.