HASSAN v. THE UNITED KINGDOM – JUDGMENT
53
16070/90, 16071/90, 16072/90 and 16073/90, § 185, ECHR 2009), and it
considers that these observations apply equally in relation to Article 5.
Moreover, the International Court of Justice has held that the protection
offered by human rights conventions and that offered by international
humanitarian law co-exist in situations of armed conflict (see
paragraphs 35-37 above). In its judgment Armed Activities on the Territory
of the Congo, the International Court of Justice observed, with reference to
its advisory opinion concerning The Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, that “[a]s
regards the relationship between international humanitarian law and human
rights law, there are thus three possible situations: some rights may be
exclusively matters of international humanitarian law; others may be
exclusively matters of human rights law; yet others may be matters of both
these branches of international law” (see paragraphs 36 and 37 above). The
Court must endeavour to interpret and apply the Convention in a manner
which is consistent with the framework under international law delineated
by the International Court of Justice.
103. In the light of the above considerations, the Court accepts the
Government’s argument that the lack of a 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.
104. Nonetheless, and consistently with the case-law of the International
Court of Justice, the Court considers that, even in situations of international
armed conflict, the safeguards under the Convention continue to apply,
albeit interpreted against the background of the provisions of international
humanitarian law. By reason of the co-existence of the safeguards provided
by international humanitarian law and by the Convention in time of armed
conflict, the grounds of permitted deprivation of liberty set out in
subparagraphs (a) to (f) of that provision should be accommodated, as far as
possible, with the taking of prisoners of war and the detention of civilians
who pose a risk to security under the Third and Fourth Geneva
Conventions. The Court is mindful of the fact that internment in peacetime
does not fall within the scheme of deprivation of liberty governed by
Article 5 of the Convention without the exercise of the power of derogation
under Article 15 (see paragraph 97 above). It can only be in cases of
international armed conflict, where the taking of prisoners of war and the
detention of civilians who pose a threat to security are accepted features of
international humanitarian law, that Article 5 could be interpreted as
permitting the exercise of such broad powers.
105. As with the grounds of permitted detention already set out in those
subparagraphs, deprivation of liberty pursuant to powers under international
humanitarian law must be “lawful” to preclude a violation of Article 5 § 1.
This means that the detention must comply with the rules of international
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