THE BLOG
10/01/2014 02:36 pm ET Updated Dec 01, 2014

In the Highest Degree Odious

The British government is still fighting case after case concerning allegations of abuses by its forces during the 2003 Iraq conflict. This month it had a rare victory. The European Court of Human Rights found no human rights violations by the United Kingdom in the detention and death of a 22-year-old football player in Iraq in 2003.

British forces who seized Tarek Hassan were apparently looking for his brother, a Ba'ath official. He was taken to a detention center run by the United States army, where the UK says its officials interviewed him, determined that he was a civilian posing no security threat, and released him over a week later. His body was discovered three months later, 700 kilometers north. He had not contacted his family since the troops took him away.

In previous cases, the European Court ruled that the UK authorities had a duty to investigate deaths in detention abroad. In this incident, the court found no evidence to hold the UK responsible for Hassan's death. But it's the court's ruling on the legality of the detention that is cause for concern, in appearing to weaken the protection of rights of civilians the UK forces detain.

The court was faced in this case with a new argument by the British government that rejected the application of human rights law during an armed conflict. Both the current government and its Labour predecessor have been fighting tooth and nail against applying the European Convention on Human Rights to the actions of its forces in Iraq. Its previous arguments in similar cases effectively claimed that human rights law stops at the white cliffs of Dover, so once its forces are outside the UK the human rights law that binds them at home no longer applies.

The European Court comprehensively rejected this claim a few years ago. A key outcome in Britain of applying human rights law to military detention in Iraq was that the government was forced to set up public inquiries into deaths in custody that exposed the abuse -- and crimes -- that led to the murder of Baha Mousa, another Iraqi detainee, who was beaten to death in UK custody in 2003.

But despite losing case after case, the Ministry of Defence has refused to make any public policy changes. Instead, it keeps fighting the cases at every judicial level, at great expense, coming up with new defenses when its basic arguments are rejected. It also has conducted an aggressive media campaign, portraying the application of human rights law to the actions of its forces overseas as "hampering" military operations.

The UK's latest argument before the European Court was to claim that human rights law shouldn't apply to detention in Iraq because during an armed conflict, only international humanitarian law (IHL) -- the laws of armed conflict -- applies. It is certainly true that IHL applies, but fortunately the European Court rejected the UK's argument that its application means that human rights law does not. That's not surprising as the International Court of Justice, the world's highest court, rejected similar claims decades ago. But rather than go on to apply the basic principles of human rights law to detention in Iraq, the court instead tried to compromise and accepted a second UK claim that IHL alone, without regard to human rights law, allowed it to detain people. Did this matter?

For detention of civilians during armed conflict it does matter if human rights law is sidelined. One of the basic elements of rule of law is avoiding arbitrary detention -- when the authorities have the power to lock someone up, sometimes for months or years, on their own say so and without any accountability. From such arbitrary acts the abuse of detainees often follows, as has been seen with the UK forces in Iraq.

Three basic principles in human rights law apply to prevent arbitrary detention. First, the authority to detain must be set out in law, be specific, and applied on an individual basis, not through blanket detentions. Second, detention centers need to be open to lawyers and family members and for independent inspections. And finally, each detainee should be brought before a judge -- or equivalent -- to rule on the legality of their detention, and should be checked for obvious signs of abuse.

These are rights that are understood to apply even in emergencies, as it is detainees who are so often subject to abuse. The duty to bring a detainee before a judge is the centuries-old English right of habeas corpus, which the drafters of human rights treaties like the European Convention put into international law. Even Winston Churchill, who as a wartime leader in 1940 was initially happy to use internment in the UK to lock people up outside the law, was a few years later to say, "The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious."

Yet the Defence Ministry wants to deny these basic rights to its detainees by seeking to isolate them from any outside contact. It had publicly accepted the recommendations of the Baha Mousa inquiry, including that all military detention centers would be open to independent inspection by HM Inspectorate of Prisons. But earlier this year the armed forces minister quietly announced this would not be permitted after all in the remaining UK detention centers in Afghanistan.

The UK still has not ratified the UN treaty to end enforced disappearances of detainees. The UK military's approach to detention is perhaps summarized by its training manuals that the Guardian's Ian Cobain discovered, which in 2010 were still telling interrogators to isolate their detainees "somewhere secret".

And now regrettably the European Court has to a degree appeared to go along with some of the British arguments and tone down some of the key protections under human rights law. It said the UK could detain people under IHL principles without explicitly setting out the specific criteria for detention required under human rights law. Even worse, the European Court suggested that judicial review may not be "practicable" in an armed conflict, even though the judges didn't need to address the issue in this case. One can all too easily imagine the UK government relying on this unnecessary comment for many years to come to try to justify the detention of civilians for years without ever seeing a judge, as in Iraq.

If the Defence Department wanted to fix this issue, the solution remains simple. It should accept that human rights law, as well as IHL when appropriate, applies to all its detainees around the world. In particular it should apply the basic principles of no detention without a clear legal basis; habeas corpus; independent inspection of detention centers, and agree that when its forces violate those principles they will be held to account. But it seems to prefer to fight its battles in the courts.