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

is to protect the individual from arbitrariness (see, for example,
Kurt v Turkey (1998) 5 BHRC 1, para 122; El-Masri v former
Yugoslav Republic of Macedonia (2012) 34 BHRC 313, para
230; see also Saadi v Italy (2008) 24 BHRC 123, paras 67-74,
and the cases cited therein).”
57. In para 104 of the judgment the Grand Chamber referred to the “co-existence
of the safeguards provided by international humanitarian law and by the Convention
in time of armed conflict.” It is clear that the fact that the relevant lex specialis
applicable to armed conflict contained its own safeguards against abuse, albeit less
extensive than those of article 5 of the Convention, was at least part of the reason
why it was legitimate to “accommodate” the six permitted grounds of detention to
cater for detention in the course of armed conflict. The rules of international
humanitarian law which the court had in mind are identified in para 106 of the
judgment:
“106. As regards procedural safeguards, the Court considers
that, in relation to detention taking place during an international
armed conflict, article 5 paras 2 and 4 must also be interpreted
in a manner which takes into account the context and the
applicable rules of international humanitarian law. Articles 43
and 78 of the Fourth Geneva Convention provide that
internment ‘shall be subject to periodical review, if possible
every six months, by a competent body’. Whilst it might not be
practicable in the course of an international armed conflict for
the legality of detention to be determined by an independent
‘court’ in the sense generally required by article 5 para 4 (see,
in the latter context, Reinprecht v Austria, para 31, ECHR 2005
no 67175/01), none the less, if the contracting state is to comply
with its obligations under article 5 para 4 in this context, the
‘competent body’ should provide sufficient guarantees of
impartiality and fair procedure to protect against arbitrariness.
Moreover, the first review should take place shortly after the
person is taken into detention, with subsequent reviews at
frequent intervals, to ensure that any person who does not fall
into one of the categories subject to internment under
international humanitarian law is released without undue
delay.”
58. The reference to articles 43 and 78 of the Fourth Geneva Convention is of
some importance. Leaving aside common article 3, the Fourth Geneva Convention
is concerned with the treatment of “protected persons” (essentially civilian noncombatants)
who in the course of an international armed conflict “find themselves”
in the hands of a belligerent or occupying power of which they are not nationals.
Page 33