Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

54. The court went on to consider whether these inconsistencies could be
resolved by resort to the right of derogation under article 15. It did not decide
whether derogation was available in respect of armed conflict in Iraq, but concluded
that it was unnecessary to do so, because the consistent practice of states was not to
derogate from article 5 of the European Convention or article 9 of the International
Covenant on Civil and Political Rights in order to detain persons on the basis of the
Third and Fourth Geneva Conventions during international armed conflict:
“However, in respect of the criterion set out in article 31(3)(b)
of the Vienna Convention …, the court has previously stated
that a consistent practice on the part of the high contracting
parties, subsequent to their ratification of the convention, could
be taken as establishing their agreement not only as regards
interpretation but even to modify the text of the convention
(see, mutatis mutandis, Soering v United Kingdom [1989]
ECHR 14038/88 at paras 102-103 and Al-Saadoon v United
Kingdom [2010] ECHR 61498/08 at para 120).” (para 101)
55. In those circumstances, the solution was to adapt the state’s obligations under
the European Convention so as to accommodate the lex specialis applicable to armed
conflict:
“The court has made it clear on many occasions that the
Convention must be interpreted in harmony with other rules of
international law of which it forms part … This applies no less to
international humanitarian law. The four Geneva Conventions of
1949, intended to mitigate the horrors of war, were drafted in
parallel to the European Convention on Human Rights and enjoy
universal ratification. The provisions in the Third and Fourth
Geneva Conventions relating to internment, at issue in the present
application, were designed to protect captured combatants and
civilians who pose a security threat. The court has already held
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’ (see Varnava v
Turkey [GC] … para 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 … In its
judgment Armed Activities on the Territory of the Congo, the
International Court of Justice observed, with reference to its
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