Written Evidence Submitted from Dr Dimitris Xenos (DRO0023)

The One side: The Disadvantages of the ECHR in the context of extraterritorial military operations

The main reason for derogation from the ECHR that the Ministry of Defence (MoD) have put forward is the large numbers of legal claims regarding allegations for violation of human rights (such as the right to life) from the acts of the British military in Iraq and Afghanistan (see the letters of the Minister of Defence of 22 November 2016 and 28 February 2017 and the government’s response of 13 October 2016). 

The number of judicial review applications that is given is 1400. It is mentioned that ‘only a tiny minority have been accompanied by full documentation’. It is also stated that ‘[t]he Government considers that many of these claims could reasonably be described as vexatious, or worse.’ It should be noted that the both the MoD and Committee’s inquiry focus on ‘false charges’, as seen also from the first question of the inquiry’s questionnaire.

A close look at this information shows that the main problem is not ‘false charges’ but unsubstantiated claims and unsupported documentation. A claim is not false because it is rejected on procedural grounds (ie. lack of sufficient evidence).[1] Although the Committee have stressed that they seek evidence about false claims, the responses that they have received do not indicate the extent of the alleged problem. Also, if ‘only a tiny minority have been accompanied by full documentation’, the admissible number of claims are also tiny. Therefore, it is within this very small number of admissible claims that the problem of ‘false charges’ is situated or matters.

In addition, the system seems capable of filtering out unmeritorious or unsubstantiated claims. It follows, therefore, that the focus should reasonably shift to the cost of funding it. In their response, the MoD mention that ‘The MOD has made compensation payments totalling £19.8 million in the cases that were settled.’ An additional cost should be calculated regarding the operation of the system dealing with complains against the MoD (eg. the Service Justice System).

Although the MoD can legitimately raise the issue of monetary cost involved, the ministry is part of the government and as such, its activities and policies can be subjected to a comparative examination in the interest of consistency and in order to appreciate the cost beyond the narrow framework of the MoD’s legitimate, budgetary concerns. This can easily be made by looking at activities and similar problems that are encountered in other contexts also (eg. for vexatious litigation – see EU Communication of the EC Commission, ‘Executive Summary of the Pharmaceutical Sector Inquiry Report’, COM (2009) 351 final, at 10–15 ).

With regard to the other problem about ‘false claims’, this is a general and old issue that can be observed everywhere and it is currently trending in social media (see #fakenews hashtags). It should also be remembered that the most known and most serious false claim that has so far been recorded was made by Mr Piers Morgan, the former editor of Daily Mirror (and now big star of the CNN network) in the wake of the Abu Ghraib scandal (see ‘Daily Mirror editor Piers Morgan has been sacked after the newspaper conceded photos of British soldiers abusing an Iraqi were fake.’ BBC news (14 May 2004), available at http://news.bbc.co.uk/1/hi/uk_politics/3716151.stm (accessed on 31 March 2017).

From the foregoing information, it follows that the main problem that the ECHR causes is the monetary cost for the system that deals with claims against the military. However, the alleged cost or other relevant problems do not seem to have reached alarming levels.

The Other Side: The Advantages of the ECHR

The number of legal claims against the MoD that the Minister mentions should be appreciated with respect to the size and consequences of the military operations in which the MoD participate. For a thorough appreciation of the situation, the Committee should reasonably ask the MoD to provide evidence of casualties and damages that these operations have caused. Since such information does not appear in the MoD’s response, it is reasonable to rely on evidence from other sources, such as:

-Iraq Body Count (IBC), a London-based company: ‘The US/UK-led invasion of March 2003 has brought a decade of high and low intensity armed conflict to Iraq. ...IBC has documented 112,017 - 122,438 civilian deaths from violence between 20 March 2003 and 14 March 2013.', available at https://www.iraqbodycount.org/analysis/numbers/ten-years/ (accessed on 31 March 2017)

- The Human Cost of the War in Iraq: A Mortality Study, 2002-2006 (Bloomberg School of Public Health Johns Hopkins University Baltimore, Maryland and School of Medicine Al Mustansiriya University Baghdad, Iraq, in cooperation with the Center for International Studies, MIT Cambridge, Massachusetts), opening sentence: 'A new household survey of Iraq has found that approximately 600,000 people have been killed in the violence of the war that began with the U.S. invasion in March 2003.'

Therefore, when the MoD raises its legitimate concerns about increased costs due to ECHR-based legal claims, it is relevant to have and provide evidence of the scale and consequences of its military operations.

The government’s intention to derogate from the ECHR as a solution in order to avoid legal claims, which increase (very slightly) the cost of military operations, should be considered against the advantages of the human rights system. To understand these advantages, an outline of some relevant cases concerning military expeditions can be given:

- Missing persons and unexplained disappearances of people, including enemy soldiers, Cyprus v Turkey (2001)

- Disappearances of detainees, Varnava and Others v. Turkey (2009); Er and Others v. Turkey (2012)

- Use of force in a non-combat situation, Andreou v. Turkey (2009); Isaak v Turkey (2008); Solomou and Others v Turkey (2008)

- Air strikes in residential areas, Esmukhambetov and Others v. Russia (2011); Abdulkhanov and Others v. Russia (2013); Hanan v. Germany (no. 4871/16) (pending)

- Examination of human rights case – the state’s obligation to furnish all necessary facilities under Article 38, Benzer and Others v. Turkey (2013)

- Disproportionate use of force in military operations, Isayeva, Yusupova and Bazayeva v. Russia and Isayeva v. Russia (2005)

- Unlawful treatment of detainees, Al-Saadoon & Mufdhi v. the United Kingdom (2010)

- Patrol operations: Al-Skeini and Others v. the United Kingdom (2011) (Grand Chamber)

- Duty to investigate murders caused by patrolling soldiers: Jaloud v. the Netherlands (2014)

- ‘Friendly’ fire and the positive obligation of the military forces to protect their soldiers (including contractors, volunteers, etc.), Halit Dinc v Turkey App no 32597/96 (2006)

The sample of cases that I have cited above involves violations of Article 2, ECHR (the right to life) and Article 3 (prohibition of torture). Article 15, ECHR that deals with derogations provides that ‘No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.’ As a result, it may only be possible to derogate from Article 2 in limited circumstances, and it is not possible to derogate from Article 3. It should be mentioned that in some cases, a violation of Article 3 is found in relation to the relatives of the victim (that is usually the applicants of the given case) for witnessing the deaths or maltreatment of their relatives – see eg, Cyprus v. Turkey (2001); Orhan v. Turkey (2002); Er and Others v. Turkey (2012); Meryem Çelik and Others v. Turkey (2013); Benzer and Others v. Turkey (2013); Pitsayeva and Others v. Russia (2014).

As violations of Articles 2 and 3 are seen as very serious and derogation from them is either very limited or impossible, a distinction should be made between Articles 2 and 3 case-law and case-law of Article 5 (deprivation of liberty, eg. the rights of detainees). Because the MoD’s conclusions and arguments are presented to MPs who are not legal experts, it is important to have and maintain a clear distinction between the various human rights involved. In this respect, the MoD’s claims about the management of legal claims against the military and the various evidence and numbers that are mentioned should be categorised and presented in relation to the corresponding human rights concerned. It is one thing to deal with an allegation of unlawful murder and it is quite another to deal with an allegation for unlawful or prolonged detention.

For example, the conclusion of the MoD’s response of 28 February 2017 states:

‘7. The approach in Hassan has now been followed and extended by the Supreme Court in
Mohammed v MOD, but there remains uncertainty as to whether the Strasbourg Court
would follow the Supreme Court’s reasoning in extending the principle that IHL can modify
the ECHR to other sources of international law and to non-international armed conflicts. As
Lord Sumption’s comments in Mohammed v MOD recognise, there remains considerable
difficulty in reconciling the different regulatory frameworks of the ECHR and IHL. Operational
and strategic decisions need to be taken against a clear legal framework. These cases
demonstrate the level of uncertainty as to the appropriate legal regime that have plagued
international armed conflicts since the Strasbourg Court extended the jurisdiction of the
Convention in the Al-Skeini judgement.’

Although the MoD have raised some reasonable arguments regarding the scope and limits of Article 5 (detainees’ deprivation of liberty), they project them to other human rights, as well. The cases of Hassan and Al-Skeini, as mentioned in their conclusion quoted above, are different because they deal with different human rights (Article 5 and Article 2, respectively). If there is no firm distinction between the various human rights, and arguments are taken out of context, it is perceivable that a legitimate argument/criticism that is raised in relation to Article 5 case-law will have a ‘spill-over’ effect on the fundamental rights of the ECHR (such as Articles 2, 3) – which will not be detectable by the MPs.

Lastly and most seriously, the advantages of the ECHR do not concern merely safeguards and human rights protection for the people who are mostly affected by the extra-territorial military operations of the MoD but create obligations for of ALL states that are contracted to the Convention. In this respect, the Committee’s question of whether other states have derogated from the ECHR is particularly relevant when examining or setting the threshold of ‘public emergency’, within the meaning of Article 15 criteria, under which a decision for derogation will be examined.[2]

In deciding such pertinent issues, both the British and European judges are likely to consider whether lowering the standards or limiting the scope of human rights may allow other states, such as Russia, Turkey and Germany, to derogate from the ECHR provisions, as well. As such decisions set a legal precedent, the MoD’s arguments should be evaluated in relation to subsequent occasions, as well as to other states also.

April 2017