HASSAN v. THE UNITED KINGDOM – JUDGMENT
37
control, he was not within the jurisdiction of the United Kingdom. This
position of principle was supported by Article 12 of the Third Geneva
Convention (see paragraph 33 above). The first paragraph of Article 12
stated that the “Detaining Power is responsible for the treatment given” to
prisoners of war. However, the second paragraph made it clear that,
following the transfer of a prisoner of war by the Detaining Power to
another State Party to the Convention, “responsibility for the application of
the Convention rests on the Power accepting them while they are in its
custody”. Thus, during the time that Tarek Hassan was detained at Camp
Bucca, responsibility for the application of the Third and Fourth Geneva
Conventions in respect of him rested on the United States.
73. In any event, the Government contended that from 25 April 2003,
when Tarek Hassan was determined to be a civilian who should be released,
and was moved to the civilian holding area in Camp Bucca, neither the
United Kingdom nor the United States purported to exercise a legal right to
detain him. He stayed at the Camp only because the security situation
rendered it irresponsible simply to have released him immediately. He was
no longer being detained, but was in Camp Bucca awaiting transport to his
place of capture. Similarly, while he was being transported by coach by
United Kingdom forces to the place of his release, he was a free person and
was not in the custody or control, or under the jurisdiction, of the United
Kingdom.
2. The Court’s assessment
74. The Court recalls that in Al-Skeini, cited above, §§ 130-142, it
summarised the applicable principles on jurisdiction within the meaning of
Article 1 of the Convention exercised outside the territory of the
Contracting State as follows:
“130. ... As provided by [Article 1 of the Convention] the engagement undertaken
by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the
listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v. the
United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others
v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001‑ XII).
‘Jurisdiction’ under Article 1 is a threshold criterion. The exercise of jurisdiction is a
necessary condition for a Contracting State to be able to be held responsible for acts
or omissions imputable to it which give rise to an allegation of the infringement of
rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova
and Russia [GC], no. 48787/99, § 311, ECHR 2004‑VII).
(α) The territorial principle
131. A State’s jurisdictional competence under Article 1 is primarily territorial (see
Soering, cited above, § 86; Banković, cited above, §§ 61 and 67; Ilaşcu, cited above,
§ 312). Jurisdiction is presumed to be exercised normally throughout the State’s
territory (Ilaşcu, cited above, § 312; Assanidze v. Georgia [GC], no. 71503/01, § 139,
ECHR 2004‑II). Conversely, acts of the Contracting States performed, or producing
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