Emanuele Sommario

On the Concurrent Application of the ECHR and International Humanitarian Law: The "Hassan" Case

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Keywords: European Convention of Human Rights; International Humanitarian Law; Derogation; Right to Personal Liberty.

This note is concerned with a recent judgment rendered by the Grand Chamber of the European Court of Human Rights ("Hassan v. UK", application no. 29750/09, judgment of 16 September 2014). The Court was asked to adjudicate whether the UK had violated Tarek Hassan's right to personal liberty by detaining him during the course of an international armed conflict at the very beginning of the Western invasion of Iraq in 2003. Mr. Hassan's detention was justified under International Humanitarian Law (IHL) based either on his prejudicial activities as a combatant or, should he be considered a civilian, by reason of his harmful conduct towards the UK. The Court had two choices: a) accept the applicant's assertion that Hassan was detained outside the perimeters allowed by art. 5 of the ECHR, to which the UK had made no derogation; or b) acknowledge the UK's stance that - even in the absence of a derogation - the powers of the detaining power in situations of international armed conflict are nonetheless left unaffected because of the 'subsequent practice' that has marked the application of the ECHR throughout the years. Ultimately, the Grand Chamber's position seems to be closer to the one maintained by the responding State, as the judgment makes clear that never before had the ECHR been subjected to derogations to justify the detention of individuals apprehended in the course of an international armed conflict. Nonetheless, the Strasbourg judges seem to want to keep their options open as they do not dismiss the possibility that - under certain circumstances - a violation of the ECHR could materialize even in the absence of a simultaneous violation of IHL.

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