PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES NICOLAOU, BIANKU AND KALAYDJIEVA

I.

1. This case concerns Tarek Hassan, a 22-year-old Iraqi and avid football player, who was captured by British soldiers on the morning of 23 April 2003 during the invasion of Iraq, while at his home in Umm Qasr, a port city in the region of Bashrah. After going through a screening process at Camp Bucca, where he was deemed to be a civilian posing no security threat, he was detained for over a week, at which point he was finally released in or near Umm Qasr on 2 May 2003 (see paragraphs 47-58 of the judgment).

2. I fully agree with the Court’s conclusions that Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by British troops until his release from the bus that took him from Camp Bucca to the drop-off point (see paragraph 80 of the judgment). However, as it is clear that Tarek Hassan was deprived of his liberty, the principal question that arises in this case is whether his internment by the United Kingdom was permitted under Article 5 § 1 of the Convention.

3. The Government have not argued that the capture and subsequent detention of Tarek Hassan were implemented with the intention of bringing criminal charges against him. The majority thus concludes correctly (see paragraphs 96-97) that his depri ­ vation of liberty was not permitted under any of the grounds for such a limitation of his fundamental rights that are provided exhaustively in sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention. In particular, the Govern ­ ment’s submission that the capture and detention was permissible under Article 5 § 1 (c) cannot be accepted, as the Government do not argue that Tarek Hassan was, at least, suspected of being a civilian taking a direct part in hostilities and thus not enjoying combatant privilege, his actions possibly being criminal under the laws of Iraq or the United Kingdom as the detaining power. Further ­ more, the facts as they are assessed by the Court (see paragraphs 47-58) do not allow for such a character ­ isation of the events of 23 April 2003. It follows that the Government’s limited argument is that Tarek Hassan’s capture and detention for nine days at Camp Bucca was based only on him being either a prisoner of war or a civilian posing a threat to security.

4. On this basis, and for the first time in the Court’s history, a Member State to the Convention invites the Court to “disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law” (see para ­ graph 99). A majority of the Court today resolves this issue through the following statement (see paragraph 104 of the judg ­ ment):

“ ... 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... It can only be in cases of international armed conflict, where the taking of prisoners of war and 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 ...”

5. It is imperative to appreciate the scope and consequences of this sweeping statement by the Court.

Firstly, the majority finds that it is permissible under the Convention, and without the State having derogated under Article 15, to intern prisoners of war for the duration of hostilities, and also civilians who pose a threat to security, so long as procedural safeguards under international humanitarian law are in place. It is important to understand what this entails under the Geneva Conventions in the light of the majority’s finding. Article 4 A of the Third Geneva Convention sets out the categories of protected persons enjoying prisoner of war status. When that status is in doubt at the outset, Article 5 § 2 of the Third Geneva Convention provides that whether a person shall enjoy combatant privilege shall be determined by a “competent tribunal”. However, this only applies in principle to the initial deter ­ mination of prisoner of war status, the recognition of which affords the person in question certain privileges while being interned and excludes, in general, the possibility that his acts can be considered criminal and prosecuted accordingly. However, as prisoner of war status is solely tied to the existence of hostilities, the detainee does not enjoy any right under the Third Geneva Convention to have his detention reviewed further at frequent intervals. Conse ­ quently, and most importantly, a person classified as a prisoner of war has no right under the Geneva Conventions to be released whilst hostilities are on-going. As regards civilians interned for security reasons, they are entitled under Article 43 of the Fourth Geneva Con ­ vention to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall “periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit”. Hence, so long as reasons pertaining to the “security of the Detaining Power”, remain, and are con ­ sidered “imperative” (Articles 42 and 78 of the Fourth Geneva Conven ­ tion), the civilian detained on such grounds may remain interned indef ­ initely and not be released.

Secondly, as the majority correctly acknowledges, albeit implicitly, the legal principle underlying the existence of this novel under ­ standing of the exhaustive grounds of detention under Article 5 § 1 cannot be limited to acts on the territory of States not parties to the Convention in circumstances where a Contracting State exercises extra-territorial jurisdiction under Article 1. It must, conceptually and in principle, also be applicable within the Convention’s legal space ; this effectively has the consequence that today’s holding must logically mean that where a Contracting State is engaged in international armed conflict with another Contracting State, it is permitted under the Convention for the belli ­ gerents to invoke their powers of internment under the Third and Fourth Geneva Conventions without having to go through the openly transparent and arduous process of lodging a derogation from Article 5 § 1, the scope and legality of which is then subject to review by the domestic courts, and if necessary, by this Court under Article 15.

6. In sum, the majority’s resolution of this case constitutes, as I will explain more fully below, an attempt to reconcile norms of inter ­ national law that are irreconcilable on the facts of this case. As the Court’s judgment does not conform with the text, object or purpose of Article 5 § 1 of the Convention, as this provision has been consistently interpreted by this Court for decades, and the structural mechanism of derogation in times of war provided by Article 15, I respectfully dissent from the majority’s finding that there has been no violation of Tarek Hassan’s funda ­ mental right to liberty.

II.

7. Article 5 § 1 of the Convention enshrines one of the most fundamental of all human rights, namely the protection of the individual against arbitrary inter ­ ference by the State with his or her right to liberty. As the Grand Chamber of this Court recently confirmed in the case of Al-Jedda v. the United Kingdom [GC], no. 27021/08, 7 July 2011, § 99, the “text of Article 5 makes it clear that the guarantees it contains apply to ‘everyone’”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty (see Al-Jedda v. the United Kingdom , loc. cit). No depri ­ vation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or unless it is provided for by a lawful derogation under Article 15 of the Convention, which allows for a State “in time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, inter alia , Ireland v. the United Kingdom , 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 automa ­ tically became silent or were displaced in substance, by granting the Member States additional and unwritten grounds for limiting funda ­ mental 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 Conven ­ tion’s legal space or on the territory of a State not Party to the Con ­ vention. 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 interna ­ tional 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 Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, from which the Court concludes as follows:

Firstly , State practice indicates that States do not derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts (see paragraph 101 of the judgment).

Secondly , the Convention must be interpreted in harmony with other rules of international law of which it forms part. The provisions in 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 humani ­ tarian law (see paragraphs 102-103).

Thirdly , even in situations of international armed conflict, the safeguards of the Convention continue to apply, albeit interpreted against the back ­ ground of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law, the grounds of permitted deprivation of liberty under Article 5 § 1 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 (see paragraph 104).

I shall discuss each argument in turn.

IV.

11. The rationale relating to State practice is flawed for three reasons.

12. Firstly , the State practice in question is based on a fundamental premise, invoked by the Government in this case (see paragraph 86), which relates to the scope of the Convention’s extra-territorial reach. The premise is the following: Article 5 does not apply to situations of international armed conflict for the simple reason that Article 1 jurisdiction under the Convention is not extra-territorial in the sense of being applicable in such conflict situations.

In Al-Skeini v. the United Kingdom [GC], 55721/07, § 137, 7 July 2011, the Court confirmed, in clear and unequivocal terms, its prior rulings in the cases of Öcalan v. Turkey [GC] (no. 46221/99, 12 May 2005), Issa and Others v. Turkey (no. 31821/96, 16 November 2004), Al-Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, 30 June 2009), and Medvedyev and Others v. France [GC] (no. 3394/03, 23 March 2010), to the effect that Member States’ obligations under the Con ­ vention remain in place “whenever” the State, through its agents, “exercises control and authority over an individual” on the territory of another State. The Court made no distinction between situations arising in peacetime or in internal or inter ­ national conflict. Further, the Court explicitly stated (see Al-Skeini , cited above, §142) that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space”. However, the Court explicitly emphasized that the “importance of establishing the occupying State’s juris ­ diction in such cases does not imply, a contrario , that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States”. The Court declared that it had not “in its case-law applied any such restriction”, referring amongst other examples to the above-cited cases of Öcalan, Issa, Al-Saadoon and Mufdhi and Medvedyev .

Moreover, it is to no avail for the Member States to rely on the above ‑ cited Grand Chamber decision in Bankovič and Others , at least in situations where extra-territorial juris ­ diction during international armed conflict is based on State agents’ authority and control in the form of the arrest and detention of an individual , as in the present case, a factual setting that is materially different from that with which the Court was confronted in Bankovič and Others (cited above). In this regard, I would recall that the United Kingdom itself, along with other Govern ­ ments, argued explicitly in the Bankovič case (see § 37) that the arrest and detention of the appl ­ icants outside the territory of the respon ­ dent State, as described in the admissibility decisions in the Issa and Öcalan cases ( Issa and Others v. Turkey , (dec.), no. 31821/96, 30 May 2000, and Öcalan v. Turkey (dec.), no. 46221/99, 14 December 2000) consti ­ tuted, according to the Govern ­ ments, “a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil”. That is exactly the situation in the present case, a situation that, as the United Kingdom argued before this Court just under two years before the start of the Iraq war, would fall clearly within its extra-territorial juris ­ diction under Article 1 of the Convention.

13. Secondly , the subsequent practice rule of Article 31 § 3 (b) of the Vienna Convention has to date been applied by the Court in several cases of central importance to the protection of human rights, namely the abolition of the death penalty (see Soering v. the United Kingdom , no. 14038/88, 7 July 1989, §§ 102-103, and Al-Saadoon and Mufdi v. the United Kingdom , cited above, § 120), the binding nature of interim measures and the validity of reservations entered by States. Beyond these literal uses, Article 31 § 3 (b) has also found expression in the Court’s characterization of the Convention as a “living instru ­ ment” (see Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights , Oxford University Press, Oxford 2010, at p. 38). How ­ ever, the Court has, for obvious reasons, been rather cautious in its application of the subsequent practice rule, as Article 31 § 3 (b) of the Vienna Convention must be understood to cover only subsequent practice common to all Parties, as well as requiring that the practice be concordant, common and con ­ sistent. Subsequent practice of States Parties which does no fulfil these criteria may only constitute a supple ­ mentary means of interpretation of a treaty (see Report of the Inter ­ national Law Commission on the Work of the Eighteenth Session (Geneva, 4 May to 19 July 1966), 1966 (2) Yearbook of the Inter ­ national Law Commission 173, p. 222). Bearing this in mind, it may be questioned whether the State practice referred to by the majority in the present case can be considered to fulfil, in substance, the criteria underlying the subsequent practice rule of Article 31 § 3 (b) of the Vienna Convention as developed in international law.

Furthermore, and most importantly in my view, in assessing whether a State practice fulfils the criteria flowing from Article 31 § 3 (b), and thus plausibly modifies the text of the Convention (see paragraph 101 of the judgment), there is, on the one hand, a fundamental difference between a State practice clearly mani ­ festing a concordant, common and consistent will of the Member States to collectively modify the fundamental rights enshrined in the Con ­ vention, towards a more expansive or generous understanding of their scope than originally envis ­ ­ aged , and, on the other, a State practice that limits or restricts those rights , as in the present case, in direct contravention of an exhaustive and narrowly tailored limitation clause of the Convention protecting a fundamental right.

14. Thirdly , the Court draws further support for its reliance on State practice, in not derogating under Article 15 in respect of detentions under the Third and Fourth Geneva Conventions during international armed conflict, on the practice of States to refrain from derogating under Article 4 of the Inter ­ national Covenant on Civil and Political Rights (ICCPR) with regard to such activities. Such reliance is however clearly inapposite in my view, as there is a fundamental distinction to be made between the wording and scope of Article 5 § 1 of the Convention, on the one hand, and Article 9 of the ICCPR and of Article 9 of the Universal Decla ­ ration on Human Rights, on the other. The former is exhaustive , as regards permissible grounds of detention, whereas the latter is not, as they are limited to a general prohibition against arbitrary forms of detention. Baroness Hale of Richmond expressed this view ­ point in very clear and eloquent terms in her speech in the House of Lords’ judgment in the Al-Jedda case (cited at paragraph 39 of the Court’s judgment), where she stated (§ 122):

“ ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of the United Kingdom. Nor could it be permitted without derogation from our obligations under the European Conven ­ tion on Human Rights. Article 5(1) of the Convention provides that deprivation of liberty is only lawful in defined circumstances which do not include these. The drafters of the Convention had a choice between a general prohibition of “arbitrary” detention, as provided in Article 9 of the Universal Declaration of Human Rights, and a list of permitted grounds for detention. They deliberately chose the latter. They were well aware of 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 “accommo ­ date”, 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 under ­ standing 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 obser ­ vations 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 humani ­ tarian law and by the Convention in time of armed conflict” (see para ­ graph 104).

International human rights law and international humanitarian law exhibit quite extensive differences both methodologically and structurally, entailing distinct judicial approaches in the evaluation of individual rights. As worded in the third-party submissions, filed in the present case by the Human Rights Centre of the University of Essex, it is thus clear that the “internal coherence of inter ­ national humanitarian law [is] significantly different from that of human rights law” (see paragraph 92 of the judgment). Thus, in my view, the underlying differences in the system of protection under the Convention, on the one hand, and inter ­ national humanitarian law, on the other, constitute a par ­ ticularly persuasive ground for dismissing the automatic assimilation of these distinct regimes of inter ­ national law, at least where the relevant provision of the Convention is not legally amenable to such an approach.

I also note that the above-mentioned observations from the case of Varnava and Others v. Turkey (cited above), which the majority refers to, must be read in this light. The Grand Chamber in Varnava and Others thus explicitly included the caveat, “in so far as possible”, when referring to the need to interpret the Convention in the light of international human ­ itarian law. Moreover, and no less importantly, Varnava and Others dealt with the interpretation of Article 2 within the context of the States’ positive obligations to protect life under that provision in a “zone of inter ­ national conflict” (§ 185). It is evident that the positive component of Article 2 is flexible enough to take account of the relevant rules of inter ­ national humani ­ tarian law so as to create a more robust and coherent regime of protection under the Conven ­ tion. For obvious reasons, the subject matter in the present case under Article 5 § 1 is quite the opposite.

As regards the majority’s reference to the “co-existence of the safe ­ guards provided by inter ­ national humanitarian law and by the Convention in time of armed conflict”, it suffices to observe that the former does not contain the safeguards manifested in the exhaustive and limited grounds of permissible deprivation of liberty contained in Article 5 § 1. On the contrary, indefinite and preventive internment in wartime flatly contradicts the very nature of the grounds found in sub-paragraphs (a) to (f), a view expressed far better than I can by Baroness Hale of Richmond in her above-cited speech in the Al-Jedda case in the House of Lords.

VI.

18. Finally, as regards the third argument set out in the Court’s judgment, the majority reasons 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” (see paragraph 104). Thus, the majority correctly rejects the Government’s invitation to disapply Article 5 of the Convention. However, the majority goes on to declare that “[by] reason of the co ‑ existence of the safeguards provided by international humanitarian law, the grounds of permitted deprivation of liberty of Article 5 § 1 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 (see paragraph 104).

This method of “ accommodation ” of Convention rights is a novelty in the Court’s case-law. Its scope is ambiguous and its content wholly uncertain, at least as a legitimate method of interpretation of a legal text. Whatever this purported method entails, it bears reiterating that there is simply no available room to “accommodate” the powers of internment under international humanitarian law within, inherently or alongside Article 5 § 1 (see paragraph 16 above). Furthermore, as the disapplication option is off the table, since no derogation from the Convention has occurred, this novel method of accommodation cannot be implemented in such a manner as to have effectively the same legal effects as disapplication . However, by conclud ­ ing, as the majority does, that the grounds of permitted deprivation of liberty under Article 5 § 1 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 majority, in essence, does nothing else on the facts of this case. It effectively disapplies or displaces the fundamental safeguards underlying the exhaus ­ tive and narrowly interpreted grounds for permissible detention under the Convention by judicially creating a new, unwritten ground for a deprivation of liberty and, hence, incorporating norms from another and distinct regime of international law, in direct conflict with the Convention provision. Whatever accommodation means, it cannot mean this!

VII.

19. In conclusion , on the facts of this case, the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Govern ­ ment as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 § 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law , to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to “[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. By attempting to reconcile the irreconcilable , the majority’s finding today does not, with respect, reflect an accurate under ­ standing of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.