By Sam Mottahedan
In recent years, trenchant critiques have emerged over the reach of the European Convention of Human Rights (‘ECHR’) to British troops acting abroad. The controversy began with a report published in 2015 by Policy Exchange (a center-right think-tank based in London). In the hyperbolically-entitled Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Policy Exchange authors called attention to what they referred to as “a new form of judicial imperialism”, “the cavalier expansion” of the apparently civilian norms of ECHR to overseas armed forces that has, in their view, undermined military effectiveness.
Alarmingly, despite not having been either authored or endorsed by a single international lawyer, the report was approved by last year’s Conservative party conference. The UK Secretary of Defense Michael Fallon has since announced an intent to follow Policy Exchange’s recommendations and derogate from the ECHR to “protect British troops serving in future conflicts” from persistent legal claims in future overseas operations. Albeit, in its more recent election manifesto, the Conservative Party has pledged to postpone any derogation or withdrawal from the ECHR till after Brexit, but misperceptions within government circles surrounding the ECHR still persist.
Leaving aside the very questionable legal validity of a hypothetical derogation from the ECHR for the purposes of avoiding claims against the armed forces (dealt with here), I would like to address three misleading claims made by the UK Government on the apparent benefits of immunity, another unsubstantiated claim, and offer some conclusions.
Misleading Claim #1: That the ECHR has only recently been found applicable to overseas operations
Far from novel, the general understanding that the ECHR applied extraterritorially existed before the ECHR was even incorporated into UK law by the 1998 Human Right Act. Case law stretching from Loizidou (1996) to Al-Skeini (2011) has confirmed that human rights obligations can extend to both areas under effective control of a contracting state as well as to persons under the control and authority of state agents. This view is supported by the UN Human Rights Committee (‘HRC’) in Lopez Burgos (1981) as well as by the International Court of Justice (‘ICJ’) in it Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (1996) and on the Legality of the Threat or Use of Nuclear Weapons (1996). The ICJ, the Human Rights Committee and the European Court of Human Rights (‘ECtHR’) are all in agreement that human rights obligations do not disappear in times of armed conflict.
In short, this so-called “cavalier expansion” or growing “judicial imperialism” identified by the Policy Exchange is a vast exaggeration.
Misleading Claim #2: That derogation would protect British service personnel from vexatious claims and “significant distress.”
Civil obligations under the ECHR reside with the UK government for alleged breaches by public authorities. In other words, the UK government is liable for breaches by the armed forces, not individual army personnel. There is no civil liability for individual military or civilian commanders in international human rights law. Armed personnel may only have personal criminal liability under international humanitarian or criminal law.
Of course, the procedural duty under the ECHR to conduct a full and independent investigation into allegations of abuses may have had a significant personal impact on the service personnel called upon to give evidence. Yet these issues do not immediately demand an end to legal scrutiny, but an improvement in the procedures and standards of inquiries that call upon service personnel.
Misleading Claim #3: That the ECHR was designed for peacetime
The Policy Exchange report consistently describes the ECHR system as designed for “the peacetime conditions of post-war Europe”. Such an assumption certainly parts company with the approach authoritatively laid down by the International Court of Justice on the applicability of international human rights law in armed conflict. Any notion that the intention of the ECHR’s framers was that it applies only in peacetime is undermined by the text itself, in which Article 15 “provides that a state may derogate from the provisions of the Convention in times of war, rather than such provisions are rendered automatically inapplicable”.
Further, the ECHR has experience with situations of conflict and insecurity, with an illustrious history of deciding cases from Northern Ireland, Cyprus, the Turkish-Kurdish conflict, and Chechnya. Arguments that the ECHR’s obligations are impractical and restrictive in times of difficult security conditions and armed conflict do not take into account the ECtHR’s flexible approach. In Jaloud v Netherlands, the ECtHR has expressly acknowledged that a State’s obligations may vary depending on the circumstances, and has made reasonable allowances for the relatively difficult conditions in which states must carry out investigations. In times of armed conflict, the Court has also confirmed in that the application of the ECHR has to take account of international humanitarian law, and in practice international humanitarian law is seemingly privileged. (Hassan v UK)
An unsubstantiated claim: Human rights undermine military effectiveness.
There is no dispute that military commanders and lawyers are concerned about the actual or potential impact of increasing judicial scrutiny on their existing practices. However, as Dr. Marko Miloniv points out, there is no evidence that such a disastrous impact actually exists. Rather, as he puts it, “many of their arguments manifest a broad-brush portrayal of human rights standards as wholly impractical in wartime”. We can at least expect concrete examples to be offered to demonstrate how human rights obligations undermine military operations before making such dramatic policy decisions.
On the contrary, a strong argument can be made for European human rights obligations being actually vital tool in assisting military efforts. By shedding light on the failures that allow human rights breaches to occur, the procedural requirement of the ECHR compels governments to act on the very inadequacies and failures that also have an adverse affect on military operations.
Take the Iraq Fatality Investigations’ report into the death of Mr. Ahmed Jabbar Kareem Ali, conducted to discharge of the UK’s positive obligation under Article 2 of the ECHR to investigate unlawful deaths. The report revealed that British forces in Basrah were not given any specific directions on how to stop looting. Consequently, the report demonstrated how the situation in Iraq in 2003 became a “procedurally formless vacuum”, characterized by widespread use by armed forces of “homemade processes and procedures” and where “the level of punishment could differ according to the temperament and inclination of the soldier in command”. The technique of “wetting” was widely used by British forces to deter looting, and was acknowledged as “potentially dangerous for those that could not swim”. Another way in which some soldiers punished looters was by writing “Ali Baba” on their foreheads in permanent marker.
Politicians might want such explosive details be left in the dark, but these revelations could only be beneficial in compelling relevant authorities to address reasons for the chain of command failures for future military efforts.
Conclusion: The Right of Victims?
Any argument for immunity should ultimately address the question of whether the UK should be held accountable for breaches of the ECHR by its armed forces abroad. Most are inclined to answer in the affirmative. Most importantly, if human rights are universal, then “accountability […] cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another state which it could not perpetrate in its own territory”. In the first place, the ECtHR’s ability to effectively secure compliance makes it uniquely well placed in terms of redress when human rights are breached.
In the case of Mr. Ahmed Jabbar Kareem Ali, the ECtHR was able to assist his bereaved family while both domestic courts and the international criminal court had been unable to provide a remedy. The ensuing report into Ahmed’s death describes for instance the episode as a “clumsy, ill-directed and bullying piece of conduct”. It describes how Ahmed was apprehended by British soldiers for suspected looting; how his clothes were forcibly removed; how he was made to roll in a stagnant pool of water, while soldiers threw bricks at him; how he was transported to the Al-Zubair bridge and forced to enter the canal at gunpoint; how soldiers left him as he floundered and drowned.
Such facts should leave us just as distinctly unimpressed as Judge Bonello by the UK government’s apparent “intent of regulating the conduct of its armed forces according to latitude” - an intent he aptly summarized as reducing the armed forces to “gentleman at home, hoodlums elsewhere”.