60
HASSAN v. THE UNITED KINGDOM JUDGMENT – SEPARATE OPINION
18 January 1978, § 194, Series A no. 25, and A. and Others v. the United
Kingdom [GC], no. 3455/05, §§ 162 and 163, ECHR 2009-...). Furthermore,
and as the majority correctly acknowledges in paragraph 97, it has “long
been established that the list of grounds of permissible detention in Article 5
§ 1 does not include internment or preventive detention where there is no
intention to bring criminal charges within a reasonable time” (see Al-Jedda
v. the United Kingdom, cited above, § 100).
8. The Convention applies equally in both peacetime and wartime. That
is the whole point of the mechanism of derogation provided by Article 15 of
the Convention. There would have been no reason to include this structural
feature if, when war rages, the Convention’s fundamental guarantees
automatically became silent or were displaced in substance, by granting the
Member States additional and unwritten grounds for limiting fundamental
rights based solely on other applicable norms of international law. Nothing
in the wording of that provision, when taking its purpose into account,
excludes its application when the Member States engage in armed conflict,
either within the Convention’s legal space or on the territory of a State not
Party to the Convention. The extra-jurisdictional reach of the Convention
under Article 1 must necessarily go hand in hand with the scope of
Article 15 (see Bankovič and Others v. Belgium and Others [GC],
no. 52207/99, § 62, 12 December 2001).
9. It follows that if the United Kingdom considered it likely that it would
be “required by the exigencies of the situation” during the invasion of Iraq
to detain prisoners of war or civilians posing a threat to security under the
rules of the Third and Fourth Geneva Conventions, a derogation under
Article 15 was the only legally available mechanism for that State to apply
the rules on internment under international humanitarian law without the
Member State violating Article 5 § 1 of the Convention. It bears reiterating
that a derogation under Article 15 will not be considered lawful under the
first paragraph of that provision if the measures implemented by the
Member State are “inconsistent with its other obligations under international
law”. In reviewing the legality of a declaration lodged by a Member State to
the Convention within the context of an international armed conflict, the
domestic courts, and, if need be, this Court, must thus examine whether the
measures in question are in conformity with the State’s obligations under
international humanitarian law.
III.
10. The majority’s finding that 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”, is primarily based on an application of
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