HASSAN v. THE UNITED KINGDOM – JUDGMENT
35
arrival at the Camp, he was taken to the JFIT compound, which was entirely
controlled by United Kingdom forces, and he remained there until 25 April.
Even following his transfer from the JFIT compound, he remained under
United Kingdom control, since the United Kingdom authorities continued to
assume responsibility over the well-being of United Kingdom detainees in
Camp Bucca; they liaised with the ICRC about their treatment and the
notification of their detention to their families; retained full rights of access
and had a resident monitoring team at Camp Bucca to ensure compliance
with domestic and international standards. The United Kingdom Provost
Staff (military police) had an overseeing responsibility for United Kingdom
detainees, on whom they checked daily, and United Kingdom detainees
requiring medical attention would be treated in United Kingdom field
hospitals. The United Kingdom also remained responsible for classifying
detainees under Articles 4 and 5 of the Third Geneva Convention. There
was nothing to suggest that the United States authorities asserted any basis
of their own for detaining Tarek Hassan. The evidence of Major Wilson was
that decisions as to whether to release a United Kingdom detainee were
made by the United Kingdom. In Tarek Hassan’s case, it was JFIT which
recommended he be released. Moreover, if a decision was made by the
United Kingdom authorities to release a detainee, he could not simply be
released by the United States, but had to be processed out of the Camp by
the United Kingdom. In the applicant’s view, it was clear that in guarding
and escorting United Kingdom detainees at Camp Bucca, the United States
were acting as agents for the United Kingdom. This was confirmed by the
fact that the United Kingdom would reimburse the United States for the
costs involved in maintaining detainees. Holding detainees at the United
States base was simply a matter of United Kingdom operational
convenience. The position was no different in substance from the United
Kingdom contracting-out the duties of guarding their detainees to private
contractors. The United Kingdom could not contract out of its responsibility
under the Convention for detainees and could not absolve itself of
responsibility by placing detainees in the temporary custody of another
organisation.
(b) The Government
70. The Government emphasised that, according to the Court’s case-law,
the exercise of extra-territorial jurisdiction remained exceptional.
Furthermore, the concept of jurisdiction was not subject to the “living
instrument” doctrine. In Al-Skeini, cited above, the Court found that the
United Kingdom had jurisdiction in relation to the deaths of the applicants’
relatives because of a combination of two fact-specific circumstances. The
first key element was the fact that the United Kingdom had, from 1 May
2003 until 24 June 2004, assumed authority and responsibility for the
maintenance of security in South East Iraq as an occupying power. The
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