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

procedural safeguards derived from international humanitarian law, which they
regarded as an acceptable substitute for the protection of article 5, were available
only to those detained in the course of an international armed conflict. I recognise
the force of this argument, but I think that it is mistaken. It is true that with the
exception of common article 3, the Third and Fourth Geneva Conventions apply
only in international armed conflicts. The duty of review in articles 43 and 78 of the
Fourth Convention, to which the Grand Chamber attached importance, does not
apply to those detained in the course of a non-international armed conflict. But it
should be noted that it does not apply to most of those detained in an international
armed conflict either. It applies only to those detainees who are “protected persons”
within the meaning of article 4 of the Fourth Convention. They are, as I have
observed, mainly civilian non-combatants. The definition of “protected persons”
expressly excludes those who are protected by the Third Geneva Convention. The
persons thus excluded from the ambit of articles 43 and 78 of the Fourth Convention
include not only the armed forces and civilian ancillary services of a belligerent
state, but also other persons participating in an international armed conflict as
members of organised and identifiable resistance movements or militias, or as
persons who on the approach of the enemy take up arms spontaneously: see article
4 of the Third Geneva Convention. The Third Convention has no equivalent
provision for review of the detention of persons in these categories. It is of course
possible that the Grand Chamber intended to confine the “accommodation” between
international humanitarian law and article 5 of the European Convention on Human
Rights strictly to the limited category of detainees entitled to the benefit of articles
43 and 78 of the Fourth Geneva Convention. This would, however, have been a
rather arbitrary choice. The Grand Chamber was not concerned to define the ambit
of international humanitarian law but to adapt article 5 of the Convention to
conditions of armed conflict for which it was not primarily designed. I think it
unlikely that they intended that article 5 should apply without modification to
prisoners of war taken in an international armed conflict, simply because no review
procedure was available to them under the Geneva Conventions. It is in my opinion
clear that they regarded the duty of review imposed by articles 43 and 78 of the
Fourth Convention as representing a model minimum standard of review required
to prevent the detention from being treated as arbitrary. They were adopting that
standard not just for cases to which those articles directly applied, but generally.
67. Given that the Security Council Resolutions themselves contain no
procedural safeguards, it is incumbent on Convention states, if they are to comply
with article 5, to specify the conditions on which their armed forces may detain
people in the course of an armed conflict and to make adequate means available to
detainees to challenge the lawfulness of their detention under their own law. There
is no reason why a Convention state should not comply with its Convention
obligations by adopting a standard at least equivalent to articles 43 and 78 of the
Fourth Geneva Convention, as those participating in armed conflicts under the
auspices of the United Nations commonly do. Provided that the standard thus
adopted is prescribed by law and not simply a matter of discretion, I cannot think
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