HASSAN v. THE UNITED KINGDOM – JUDGMENT
43
and there could be no implied displacement of Convention rights. It was
important to remember the historical context in which the Convention was
drafted, namely the aftermath of a global conflict. With the memory of war
still fresh, the drafters addressed their minds to the question whether the
fundamental rights the Convention recognised should apply differently in
wartime and decided that they should only (i) insofar as necessary to deal
with the exigencies of a war or public emergency, (ii) provided the State’s
other obligations under international law were respected and (iii) provided
the State derogated formally and openly. The result was Article 15. If the
drafters had intended to create a regime under which human rights would
automatically be displaced or re-written in times of international conflict,
they would have done so.
82. The applicant did not accept that there was any evidence of State
practice by High Contracting Parties to the effect that the Convention need
not be complied with in detaining actual or suspected combatants in the
course of international armed conflict. Even if there were, there was no
evidence of accompanying opinio juris. Moreover, even if there were both,
the function of the Court under Article 19 was to ensure the observance of
the Convention, not to apply it only where States were in the habit of
applying it. Nor did the Court’s case-law, for example Varnava and Others
v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, 16072/90 and 16073/90, § 185, ECHR 2009, assist the
Government’s case. In Varnava the Court held that the relevant rules of
international humanitarian law expanded the obligations on States under
Article 2; it did not support the proposition that fundamental rights were
automatically curtailed in wartime. Inherent in the concept of “interpreting a
provision in so far as possible in the light of general principles of
international law” was recognition that there was a range of possible
meanings and that some proposed interpretations would fall outside that
range. The Government’s “displacement” argument was essentially that
Convention rights must be read as if they contained a wide “wartime”
exception which they did not actually contain. Such an approach was not
supported by Varnava. Finally, the applicant submitted that the
Government’s reliance on the International Court of Justice’s advisory
opinion on The Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory was hard to understand, since in that
opinion the International Court of Justice expressly found that derogation
was the only means of displacing a provision of international human rights
law (see paragraph 36 above).
83. The Court had often applied the Convention in situations of armed
conflict and recognised that in principle it was not displaced (the applicant
referred to the following cases: Ahmet Özkan and Others v. Turkey,
no. 21689/93, §§ 85 and 319, 6 April 2004; Varnava and Others v. Turkey
[GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,
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