64
HASSAN v. THE UNITED KINGDOM JUDGMENT – SEPARATE OPINION
Churchill’s view that the internment even of enemy aliens in war time was “in the
highest degree odious...”
15. In the light of the above, the arguments from State practice, relied
upon heavily by the majority, cannot, in my view, sustain its finding in this
case.
V.
16. As regards the majority’s second rationale, it is certainly true that
the Convention must be interpreted in harmony with other rules of
international law of which it forms part. But the doctrine of consistent
interpretation of the Convention with other norms of international law has
its limits, as does any other harmonious method of legal interpretation.
Article 5 § 1 is worded exhaustively, as regards the permitted grounds for
deprivation of liberty, and the Court has consistently held, without
exception till today, that these grounds should be interpreted narrowly.
There is simply no available scope to “accommodate”, to use the language
of the majority (see paragraph 104), the powers of internment under
international humanitarian law within, inherently or alongside Article 5 § 1.
That is the very raison d’être of Article 15, which explicitly opens up the
possibility for States in times of war or other public emergencies threatening
the life of the nation to derogate from Article 5, amongst other provisions.
The majority’s support for a contrary understanding of Article 5 renders
Article 15 effectively obsolete within the Convention structure as regards
the fundamental right to liberty in times of war.
17. Furthermore, the majority concludes that the provisions of the Third
and Fourth Geneva Conventions relating to internment, at issue in the
present case, were “designed to protect captured combatants and civilians
who pose a security threat”. Thus, the lack of formal derogation under
Article 15 “does not prevent the Court from taking account of the context
and the provisions of international humanitarian law when interpreting and
applying Article 5 in this case” (see paragraph 103). In support of this
approach (see paragraph 102), the majority relies on the observations in
paragraph 185 of Varnava and Others v. Turkey [GC], nos. 16064/90 et al.,
ECHR 2009), where the Court stated that Article 2 of the Convention
should be “interpreted in so far as possible in light of the general principles
of international law, including the rules of international humanitarian law
which play an indispensable and universally accepted role in mitigating the
savagery and inhumanity of armed conflict”. Moreover, the majority refers
to the “co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict” (see paragraph 104).
International human rights law and international humanitarian law
exhibit quite extensive differences both methodologically and structurally,
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