24
HASSAN v. THE UNITED KINGDOM – JUDGMENT
derogations notified to the concerned authorities for the Convention and the
ICCPR, as reflected in the United Nations’ and the Council of Europe’s
online databases (last verified on 1 October 2010). She noted as follows:
“Our research of these databases – focused on international armed conflicts and
occupations in which States parties to the ICCPR and ECHR were involved since their
date of ratification – has provided us with the following information ... . Neither
Afghanistan nor the Soviet Union derogated from the ICCPR during the conflict that
opposed the two States from 1979 to 1989. Likewise, neither Afghanistan, Australia,
Canada, Denmark, France, Germany, Italy, the Netherlands, New Zealand, the UK or
the US derogated from the right to liberty under the ICCPR or the ECHR in relation to
the international phase of the recent conflict in Afghanistan (2001-2002); the same is
true for the conflict that opposed Iraq to the US, UK and other States from 2003 to
2004. The following States have also interned persons on the basis of the Third and
the Fourth Geneva Conventions without derogating from the right to liberty in the
ICCPR or ECHR: the UK and Argentina in the conflict over the Falklands/Malvinas
islands in 1982; the US during its military operations in Grenada in 1983; India and
Bangladesh in the conflicts with Pakistan in the 1970’s (Pakistan is not a party to the
ICCPR); Iran and Iraq during the 1980-1988 war; Israel and the Arab States in any of
the international armed conflicts opposing them in the Middle East (1948-today) [but
note the derogation filed by Israel, set out in paragraph 40 above]; the States parties to
the ECHR that participated under the umbrella of the UN in the Korean War from
1950 to 1953; Iraq, Kuwait, the US and the UK during the 1991 Gulf War
(Saudi-Arabia, which interned many prisoners of war during that conflict, is not a
party to the ICCPR); Angola, Burundi, the Democratic Republic of the Congo (DRC),
Namibia, Rwanda, Uganda and Zimbabwe in the DRC (1998-2003); Ethiopia in the
conflict opposing it to Eritrea from 1998 to 2000 (Eritrea had not yet ratified the
ICCPR at the time); Eritrea and Djibouti in the short border conflict in 2008; Georgia
and Russia in the blitz war of August 2008; Russia did not derogate from the ICCPR
in relation to the conflict with Moldova over Transdnistria in 1992 (Russia was not yet
a party to the ECHR and Moldova was not yet a party to either the ICCPR or the
ECHR at the time). Neither Cyprus nor Turkey derogated from the ICCPR or the
ECHR to intern on the basis of GC III-IV in Northern-Cyprus (note that Turkey did
not consider the ICCPR or the ECHR to apply extra-territorially); Turkey did derogate
from the ECHR as far as persons within mainland Turkey were concerned but since it
did not specify the articles from which it intended to derogate it is unclear whether it
thought it necessary to do so in order to intern persons on the basis of GC III and IV.
Similarly, Azerbaijan derogated from the ICCPR (it was not a party to the ECHR yet
at the time) to take measures that were necessary as a result of the conflict with
Armenia (1988-1994), but it is unclear whether it did so to intern persons on the basis
of the Geneva Conventions; Armenia did not derogate from the ICCPR (it was not yet
a party to the ECHR at the time). Likewise, Nicaragua derogated from article 9
ICCPR, saying it was obliged to do so following the US involvement in the conflict
with the Contras in the 1980s. It is unclear whether Nicaragua thought it necessary to
derogate from the ICCPR to intern on the basis of the Geneva Conventions, in its
notices of derogation it insisted that article 9§1 was only derogated from for offences
against national security and public order.”
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