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

cornerstone of the international legal order. Their status as a source of international
law powers of coercion is as significant as the Geneva Conventions, and is just as
relevant where the Convention falls to be interpreted in the light of the rules of
international law.
61. Secondly, I reject the argument that the decision has no application to noninternational
armed conflicts because, while there are differences between the two
classes of armed conflict, those differences do not, as it seems to me, affect the
particular features of the reasoning in Hassan which are critical to the resolution of
these appeals. The fundamental question in Hassan was whether the six permitted
grounds listed in article 5(1) of the Convention were to be treated as exhaustive in
the context of armed conflict. The Court decided that they were not. This was
because the exhaustive list of permitted grounds was designed for peacetime and
could not accommodate military detention in the very different circumstances of an
armed conflict: para 97. The Grand Chamber referred at para 102 to the decision of
the International Court of Justice in Armed Activities on the Territory of the Congo,
and its advisory opinion concerning The Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory. At para 104, it drew the same
distinction as the International Court of Justice had made between peacetime norms,
such as the prohibition of internment by international human rights instruments, and
detention in the course of an armed conflict. These points do not depend on the
international character of the armed conflict in question. The taking of prisoners of
war and the detention of civilians posing a threat to security are inherent in
international and non-international armed conflicts alike. The practice of states to
detain is common to both and is universal in both contexts. It is right to add that the
state practice as regards derogations, to which the Grand Chamber attached some
importance, is the same in both international and non-international armed conflicts.
No member of the Council of Europe has ever derogated from the European
Convention with respect to military action of whatever kind taken abroad: see Pejic,
art cit, at p 850.
62. It is fair to point out that some aspects of the functions of the peacekeeping
forces deployed in Iraq and Afghanistan can more readily be accommodated within
the six specified grounds in article 5(1) than the internment of prisoners of war in an
international armed conflict. In particular, where armed forces are operating in
support of the government of the territory, article 5(1)(c) may apply (detention for
the purpose of bringing a person before a competent legal authority on suspicion of
having committed an offence or to prevent him from committing one). But the
enforcement of the criminal law against individual suspects is far from exhausting
the functions of the forces deployed in either theatre. As I have pointed out (paras
21-22, 28 above), their mandate under the relevant Security Council Resolutions
extended well beyond operating as an auxiliary police force. It required them to
engage as combatants in an armed conflict with the forces of a violent, organised
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