Written Evidence Submitted from Dr Aurel Sari, University of Exeter (DRO0019)

Comments on the Government’s Policy on Derogations

1            In this brief submission, I would like to draw the attention of the Joint Committee on Human Rights to two issues falling within the scope of the present inquiry. The first concerns the potential unintended consequences of the Government’s new policy on derogating from the European Convention on Human Rights (ECHR).[1] The second concerns the claim that the ECHR undermines the operational effectiveness of the armed forces.

2            For a more detailed assessment of derogations, including their availability in the context of overseas military operations, I kindly refer the Joint Committee to the written evidence I have submitted to the inquiry conducted by the House of Commons Defence Committee on the Legal Framework for Future Operations.[2]

I. Unintended consequences

3            Speaking at the Conservative Party conference on 4 October 2016, Defence Secretary Michael Fallon announced that the Government intends to derogate from the ECHR in future conflicts.[3] In a press release issued on the same day, the Government clarified that it was introducing a ‘presumption’ to derogate ‘if possible in the circumstances that exist at that time’.[4] This statement suggests that the new policy is more cautious than it might appear at first sight. The Government introduced a mere presumption and seems to recognize that the law does not enable it to derogate from the ECHR under all circumstance. Nevertheless, the announcement represents a significant departure from the Government’s former policy.

4            The right to derogate is set out in Article 15 of the ECHR. Pursuant to this provision, a State party may derogate ‘from its obligations under this Convention’. Derogations thus come into play only if a State party’s obligations under the ECHR are engaged in the first place. For years, the Government has contested the applicability of the ECHR during overseas deployments.[5] While it has accepted that the ECHR is engaged, in principle, in cases where British forces have custody over a person abroad,[6] it has vigorously denied its extra-territorial applicability in other situations.

5            The attraction of this litigation strategy is easy to see. If the ECHR does not apply to overseas deployments at all, except in cases of physical custody, there is no need to guarantee Convention rights and freedoms in the context of deployed operations or to worry about any adverse effects that their applicability might have on military effectiveness.

6            Seen from this perspective, derogations make little sense. A derogation made pursuant to Article 15 amounts to an admission that the ECHR applies in the circumstances at hand. Consequently, while Article 15 may furnish State parties with a tailor-made mechanism to lighten the burden that the Convention imposes on them in times of public emergency, making use of this mechanism prevents them from questioning the overseas applicability of the Convention at the same time. Faced with a choice between alleviating its extra-territorial obligations or denying that it is bound by such obligations at all, in the past the Government has chosen the latter option.

7            Against this background, the new derogation policy may be read as an implicit admission by the Government that it has lost the argument about the extra-territorial scope of the Convention. Despite its protests, the Strasbourg Court has progressively expanded the reach of the ECHR.[7] Now that the horse has bolted, there is no point in contesting what is becoming settled case-law. Rather than focusing on the applicability of the Convention, the Government may have decided to shift its attention to contesting how the ECHR applies abroad and to start making use of derogations. If this is indeed the underlying rationale of the new policy, proponents of the ECHR’s applicability to deployed operations should welcome the Government’s new approach. That said, it seems likely that the Government is not prepared to concede defeat quite so easily and instead seeks to contest the Convention’s extra-territorial applicability in areas where the case-law is not settled and derogate in those areas where it has well and truly lost the argument.

8            Derogations may turn out to be a double-edged sword, however. Not only do they imply that the Convention is applicable, but they may also unravel the settlement between the law of armed conflict and the rules of the ECHR that has emerged from the Hassan case.[8] According to the Government, where the Convention applies in the context of an international armed conflict, its application has to take account of the law of armed conflict as the applicable lex specialis which might modify or displace the applicability of the Convention’s individual provisions.[9] The European Court of Human Rights has accepted this argument in Hassan. Specifically, the Court held that the right to liberty guaranteed by Article 5 of the Convention must be interpreted in the light of the relevant provisions of the law of armed conflict so as to accommodate, as far as possible, the power to take prisoners of war and detain civilians in accordance with the Third and Fourth Geneva Convention of 1949.[10] In adopting this approach, the Court took note of the fact that it is the consistent practice of the State parties to the ECHR not to lodge derogations under Article 15 in respect of detention during international armed conflicts.[11]

9            The Court’s willingness to accommodate the powers that derive from the law of international armed conflict with the requirements of the Convention appears to be linked to the consistent practice of the State parties not to make use of Article 15. There is a risk, therefore, that in the future the Court will be less receptive to arguments based on the lex specialis character of the law of armed conflict if the Government now departs from that practice. A policy of derogating in times of armed conflict could also thwart the further evolution of the law in the direction staked out by Hassan. For example, in Al-Saadoon, the High Court accepted that the reasoning in Hassan should extend to the right to life protected by Article 2 of the ECHR.[12] In Al-Waheed, the Supreme Court held that the reasoning in Hassan is also applicable, in principle, in the context of non-international armed conflicts and specifically noted the absence of derogations in both international and non-international armed conflicts.[13]

10        To the extent that the approach taken in Hassan and subsequent cases answers at least some of the concerns expressed over the applicability of the ECHR in deployed operations, as the Defence Secretary himself conceded,[14] the Government’s new derogation policy could turn out to be, at least in this respect, something of an own goal.

II. The impact of the ECHR on military effectiveness

11        That the ECHR undermines the effectiveness of the British armed forces has been asserted by many, but compellingly proven by few. Announcing the Government’s new policy, Michael Fallon suggested that derogating from the ECHR would ‘help to protect our troops from vexatious claims, ensuring they can confidently take difficult decisions on the battlefield’.[15] Vexatious claims have indeed been brought against the armed forces.[16] There can be little doubt that they have left a mark on those falsely accused and that significant resources had to be diverted to address them. However, none of this fully bears out the claim that ‘[e]xtending the jurisdiction of the European Convention on Human Rights to the battlefield risks seriously undermining the operational effectiveness of UK Armed Forces’.[17]

12        Whilst it is easy to see that vexatious claims may undermine morale and encourage service personnel to become more risk averse, these dangers do not support the conclusion that the extra-territorial applicability of the ECHR seriously undermines the operational effectiveness of the British armed forces. My point is not to dispute that the ECHR could have such an effect. Rather, my point is that senior military and political leaders have not succeeded in convincingly demonstrating that it does. The public debate about the impact of human rights law on the armed forces has suffered from hyperbole, though not just at the hands of the Government.[18] This is deeply unfortunate, for it impedes a more nuanced analysis of the subject. The following points illustrate the need for greater subtlety.

13        For the foreseeable future, most of the armed conflicts that British forces will engage in are likely to be non-international in nature. The legal framework of non-international armed conflicts is less certain in key respects than the framework governing international armed conflicts. In particular, there is an ongoing debate as to whether the law of armed conflict confers a legal power on States to engage in hostilities during non-international armed conflict or whether it merely sets limits to the conduct of warfare without authorizing it. For example, in Al-Waheed, the Supreme Court was not convinced that the law of armed conflict authorizes security detention in the context of a non-international armed conflict.[19] While a compelling case can be made that the law does in fact confer such an authority on States,[20] the arguments are finely balanced.

14        For present purposes, the point to underline is that if the law of armed conflict is understood as a purely prohibitive framework that does not confer any legal authority on States to engage in hostilities, it follows that there would be no conflict between it and the ECHR. States would simply have to follow the more restrictive standard, in this case the ECHR. Human rights law would thus be the governing legal paradigm in non-international armed conflicts. This line of argument does not stop here. While Article 21 of the Third Geneva Convention of 1949 provides an express legal basis for the interment of prisoners of war, no single provision of the law of armed conflict expressly and positively authorizes States to use offensive lethal force against enemy combatants. In the absence of such an express provision, does a legal authority to kill the enemy actually exist? Even if it did exist, is there really a conflict between the right to life on the one side and the authority to target enemy combatants on the other side? After all, a ‘power does not have to be exercised’, as Lord Sumption suggested, perhaps somewhat rashly, in Al-Waheed.[21] If the law of armed conflict does not impose a legal duty on States to kill enemy combatants based purely on their status, why would States be entitled to use lethal force other than in the context of the narrow exceptions recognized by Article 2 of the ECHR? Moreover, if the law of armed conflict does not impose a legal duty on States to destroy military objectives, why would States be entitled to deny the peaceful enjoyment of property other than on the conditions imposed by Article 1 of the Protocol to the ECHR?

15        The answer to these questions is that the law of armed does confer the power on States to engage in the conduct of hostilities, as recognized by the European Court of Human Rights in Hassan. In fact, Article 15(2) of the Convention specifically admits the possibility of ‘deaths resulting from lawful acts of war’. Not only is causing such deaths therefore a legitimate ground for derogation, but the wording suggests that it is the conformity of the deprivation of life with the law of armed conflict which justifies exempting deaths caused by acts of war from the requirements of Article 2 of the Convention. Article 15(2) thus expresses the more general principle, formulated by the International Court of Justice, that the legality of the deprivation of life as a matter of human rights law ‘falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’.[22] The European Convention thus defers to the principle of distinction, one of the structural principles of the law of armed conflict, which channels violence by defining which persons and objects are lawful targets of attack and which persons and objects must not be attacked.

16        Unless it is accepted that the law of warfare confers certain liberties on States—that is freedoms to act in a certain way without further legal restrictions, for instance to target lawful military objectives in accordance with the law of armed conflict in order to weaken the enemy—the legal framework of warfare is at risk of unravelling at some speed. This does not reflect the law as it currently stands nor is it in the best interests of the United Kingdom. Although the adverse effects of vexatious litigation on the armed forces should not be downplayed, the progressive extension of the ECHR to extra-territorial military operations, including combat operations, raises more fundamental concerns. The humanization of the law of armed conflict may lead to a point where it no longer serves as an effective legal framework for the conduct of hostilities. It is this development, rather than vexatious claims, which would seriously undermine the operational effectiveness of the British armed forces. The solution lies in accommodating the competing approaches of the law of armed conflict and the European Convention in a way that does not negate the normative identity, or core principles, of either regime. This requires a nuanced approach and not hyperbole. Derogations may play a role in this, but due to their ad hoc nature, they are not a suitable instrument for a comprehensive and lasting accommodation.[23]

April 2017

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