Defence CommitteeWritten evidence from Professor Nigel D White, School of Law, University of Nottingham

Introduction

Rather than viewing human rights as being antithetical to operational effectiveness, this submission is based on the premise that ensuring human rights compliance in military operations, whether in conflict or otherwise, is essential for the legitimacy of the operation and, therefore, the longer term effectiveness of military operations and any peace-building that follows from them. Military operations can be restricted to the initial period of peace enforcement, support, stabilisation and restoration, but the conduct of those operations whether short or long-term sets the framework for what follows. It would be very difficult to both keep and build the peace if the military operation had not been undertaken in accordance with basic human rights.

Traditionally, military operations have been subject to the legal frameworks of national military law and the international law of armed conflict (LOAC—also known as the laws of war or international humanitarian law). Although LOAC has military necessity built into its framework as a basic principle it also has humanity.1 Therefore, LOAC is not incompatible with human rights law per se, although there may be conflicts in certain rules as between what LOAC allows and what is not permitted under human rights law. These conflicts do exist and more will be thrown up as these two areas of law are increasingly applied together to military deployments, but that should be expected as international law develops and its regimes expand.

Just as the rules of LOAC have become more sophisticated since the First and Second World Wars, so international human rights law has been established (first by the Universal Declaration of Human Rights in 1948) and then its coverage widened as its abstract norms have been applied to concrete cases. It is not possible to retreat from the idea, universalised in 1948, that all individuals have basic rights inherent in human dignity in times of war and peace; indeed it is in times of war that human rights come under the greatest threat and therefore require protection. Increasingly wars are being fought over the basic rights of citizens and so it would be incongruous to state that human rights law is inapplicable during that conflict. It follows that both civilians and soldiers are individuals who are entitled in principle to human rights protection, but that can only be the case in practice if it can be established that the state has a duty to protect them in the circumstances. Thus, human rights law does not simply apply as a blanket protection wherever British troops are deployed. There is considerable difference between the ideal of an extensive range of universal human rights and the reality of human rights law, which recognises limitations upon a state’s duty to respect and protect those rights. The purpose of this paper is to explore those limitations in the context of UK military operations overseas.

The Influence of Human Rights

The unstoppable influence of human rights can be seen not only in the tightening up, over the years, of fair trial rights in civilian courts but also in military courts. Historically courts martial were a crude but effective way of ensuring military discipline was maintained, often consisting of trials of soldiers by their senior officers with little representation or due process. Courts martial have successfully been reformed to conform to human rights laws on the right to a fair trial after the Findlay case before the European Court of Human Rights,2 although the distinctive character of the court as a military court has not been lost. While crude field courts martial no longer occur commanders are still able to maintain discipline over troops for summary offences (with a right of appeal since 2000),3 while more serious issues are subject to courts martial where the rights of the accused are protected. In other words courts martial have become human rights compliant in response to challenges but they have not been replaced with purely civilian courts with their own clear human rights guarantees. Human rights compliance does not mean one size-fits-all solutions. Courts martial involve jurors who are serving officers and a judge who, although independent, is of a military legal background. Such experience and perspective are necessary to bring to the trial the military environment and expectations for military conduct, which are often very different to those which pertain in civilian life.

The evolution of courts martial shows that military law and discipline can be brought into the human rights era. The question is not so much whether other aspects of military deployments can be made human rights compliant, the question is how. This is particularly important when soldiers are deployed to a situation that does not cross the threshold of an armed conflict—say a crisis, post-conflict, or humanitarian situation—here, by definition, LOAC does not apply. The regulatory framework remains national military law but also international human rights law.4 Thus, while the right to life is qualified by LOAC during an armed conflict when combatants can kill enemy combatants,5 it is not so qualified outside that situation. However, even outside of armed conflict, the European Convention on Human Rights (ECHR) allows life to be taken when absolutely necessary for self-defence, defence of others, in order to affect a lawful arrest or prevent escape from lawful detention, or in action lawfully taken to quell a riot or insurrection.6 Notice that human rights law does not prohibit the taking of life, but it does subject it to a stricter regime than applicable during war—which is only to be expected. We would not expect soldiers in a humanitarian situation to be using the levels of lethal force necessary during an armed conflict, but we might have to accept that lethal force is necessary to prevent attacks on civilians or to prevent insurrections, and human rights law reflects that.

Jurisdiction over Soldiers under the ECHR

Much of the Smith v MOD case of 2013 was a debate about the positive obligations of the UK government and military to protect the right to life of its soldiers when deployed to Iraq.7 At the time LOAC applied in Iraq, first in 2003–2004 after the successful invasion as a result of the occupation by US and British troops, and then as a result of the insurgency against the British and US forces present under agreement with the Interim government of Iraq. The fighting between US/UK forces and armed groups reached the level of protracted armed violence necessary for a non-international armed conflict to exist in which LOAC applied.

Despite the applicability of LOAC to British forces in these circumstances, the UK Supreme Court unanimously agreed that human rights law also applied in that the UK’s jurisdiction, in the sense of Article 1 ECHR, extended to securing the protection of the right to life under Article 2 ECHR to British soldiers. There no longer seems to be any doubt amongst the senior judiciary at least that British soldiers are covered by the ECHR wherever they are deployed. While this potentially opens up the government to claims by fallen soldiers’ families that lives have been lost in violation of Article 2 ECHR, the Court effectively moved the barriers to success for such claims on to the nature of the positive obligations a government owes its soldiers (discussed in the next section). If those barriers are set quite high (as was the case according to the majority led by Lord Hope in Smith v MOD), or are of an absolute impenetrable nature (as argued by the minority led by Lord Mance) then litigation will be either largely unsuccessful or fruitless.

The finding that the UK had jurisdiction for ECHR purposes over soldiers operating in combat situations outside their bases in Smith v MOD in 2013 is a major step from the R (Smith) v Oxfordshire Deputy Coroner case of 2010, when the Supreme Court restricted the application of ECHR to soldiers within their bases.8 The change in judicial attitude was caused by the European Court of Human Rights’ judgment in Al-Skeini in 2011, which decided that civilians killed by UK forces in Iraq were protected under the ECHR whether they were killed in detention or on the streets.9 Given the nature of the British occupation entailing the exercise of public powers by British forces those Iraqi civilians were within the jurisdiction of the UK.

The European Court of Human Rights took the opportunity in Al-Skeini to rationalise its case law on jurisdiction, first to situations where a contracting state’s agents had effective control over an area in another state and, second, to where state agents exercised authority and control over individuals.10 Although the second situation had hitherto been concerned with individuals who came under the authority or control of state agents such as soldiers, in Smith v UK the Supreme Court took the second situation and applied it to British soldiers themselves who came within the UK’s jurisdiction because they were also under the authority and control of the UK and subject exclusively to UK law.11 This application of jurisdiction under the ECHR to soldiers serving overseas seems to have been accepted by the Supreme Court without question. It would not be possible to draw a distinction between soldiers and civilians who are under the authority and control of the UK except on the grounds that civilians have human rights and soldiers do not (or have been deemed to have given them up when joining the services).Nonetheless, as Lord Hope admitted, no case had come before the European Court of Human Rights as to whether the jurisdiction that contracting states have over their troops when deployed overseas equates to jurisdiction in the sense of Article 1 ECHR.12

Lord Hope further admitted that the “extent of the day to day control” over soldiers will, of course vary from time to time when forces are deployed on active service overseas, especially when troops are face-to-face with the enemy.13 However, the Court did not explore whether this factual variance in control might affect the duty to protect the right to life. It accepted that ECHR rights can be “divided and tailored” so that the state only has to secure rights that are relevant to the individual under state authority and control.14 It would seem reasonable to argue, for instance, that sending troops into a city, the capture of which is necessary in military terms, in the expectation of hand-to-hand fighting and high casualty rates, would not violate the individual soldier’s right to life if the operation was clearly planned, and the soldier was fully trained and equipped. This is not denying that soldiers have a right to life in these circumstances but if the state has acted diligently it cannot be held to have violated that right even if soldiers’ lives are lost. It is interesting to note that in making the case for the application of ECHR rights to soldiers when on active service overseas Lord Hope cites recommendation 1742 (2006) of the Parliamentary Assembly of the Council of Europe, which states that soldiers enjoy the same rights and freedoms as any other citizen within the limits imposed by the specific exigencies of military duties.15

Due Diligence Owed to Soldiers in Combat Operations

Human rights law requires that a state does not violate the rights of individuals within its jurisdiction (the negative obligation) but also that the state takes measures to ensure that rights are protected within that jurisdiction (the positive obligation). In the McCann case, before the European Court of Human Rights, the SAS’ actions in shooting known IRA members in the belief that they were about to detonate a bomb in Gibraltar was not deemed to violate the right to life of those killed but poor planning and prevention by the UK was.16 Due diligence (positive) obligations are obligations of conduct not result, so that the fact that deaths occur does not mean that the obligations are breached if the soldiers’ use of lethal force was necessary to preserve life and the government had acted diligently in planning and preparing the operation.17

The right to life is not absolute even in times of peace and will be further qualified by the relevant rules of LOAC when in a situation of armed conflict. Thus, sending troops into a combat situation where there is a risk of life being taken does not, per se, violate the right to life of the soldiers. Having established that the UK had jurisdiction over its soldiers in Iraq within the meaning of Article 1 ECHR, the Supreme Court in Smith v MOD set about examining the extent of the UK’s positive obligations to protect the right to life of its soldiers under Article 2 ECHR. Here it is important to note that the test is not absolute—such obligations are ones of conduct not of result—and must be assessed in relation to the facts of the case where, as Lord Hope recognised—a balance has to be struck between the competing interests of the individual and of the community as a whole, giving the state a wide margin of appreciation.18

Arguably, Lord Hope did not explore the key issue of balance enough given there can be no greater expression of state/community interest than a decision to send troops to fight. The trend towards securing a positive vote in the House of Commons in favour of troop deployments indicates that these are no longer just decisions for the government, exercising prerogative powers, but for the country as a whole, as represented by Parliament. Undoubtedly, the vote against the deployment of forces to Syria in August 2013 was in part influenced by the lack of public support for such an operation. That expression of community interest in Parliament does not mean that there are no positive obligations on the part of the state when it does decide to send troops into combat, but it does mean that the Courts should be concerned with balancing those wider interests against the interests of soldiers, which can be achieved by proper planning, training, and ensuring that the equipment was sufficient to achieve the goals of the operation (while not exposing soldiers to manifestly unreasonable risks).

While the use of Land Rovers in Iraq could be criticised as not affording as much protection as say Armoured Personnel Carriers that decision is not, in itself, a breach of the UK’s positive obligation to protect the lives of its soldiers under the ECHR. The use of Land Rovers was in fulfilment of the functions of the force (to bring security to Iraq), so the question was whether this exposed soldiers to manifestly unreasonable risk. There was a risk with Land Rovers that soldiers might lose their lives as a result of IEDs but, given the efforts to reduce the chances of loss of life (by the introduction of electronic countermeasures for instance), due diligence steps had been taken. There is a question mark over how quickly those measures were installed on Land Rovers, which is an issue for the trial court, examining all the relevant facts.19 It is suggested that the due diligence test does not require provision of the best equipment available, rather it requires that the equipment provided is more than sufficient for the tasks set. That is the sort of balancing dictated by due diligence standards—they do not provide for absolute (and very difficult to achieve standards) but are satisfied by reasonable caution and careful preparation. For example, if the government sends troops to a combat operation with only light weapons, it is failing its duty. If it sends troops with light weapons on a peacekeeping mission, where fighting has ceased, it is not.

Lord Hope, representing the majority view in Smith v UK, accepted the limitations of positive obligations, both at operational level (where the Court must be very slow to question operational decisions made by commanders), and at the planning level (where allocation of resource is primarily a political decision and not normally appropriate for a Court). The law should enter this field with great caution, according to Lord Hope, and the Courts should not risk undermining the ability of a state to defend itself or risk democracy itself.20 Thus, it would require a manifest violation of positive obligations to trigger responsibility of the government—either a serious error by a commander,21 or a serious failure in planning or procurement.22

Although the UK Supreme Court allowed the case to proceed to trial, where the facts would be the focus, Lord Hope gave a strong steer that the duties implied in Article 2 ECHR must not “impose an unrealistic or disproportionate burden on the authorities”, and that meant that a “very wide measure of discretion … must be accorded to those” planning the operations and procuring equipment .23 He thus put the claimants “on notice”, in effect, as to their limited chances of success.24 This hardly seems to justify the charges of “legalistic and post-operational questioning” levelled at the majority in Smith v MOD in the Policy Exchange Report.25 Yes the case does establish (without any dissent) that in principle the ECHR applies to soldiers, but it places clear limits on the chances of claims succeeding. Lawyers advising potential claimants should bear this is mind, although this should not stop cases proceeding where, as with the use of Land Rovers in Iraq, there are questions to be answered. Claims will help shape the governments obligations and future military operations, although the claim itself is unlikely to be upheld.

Neither the military nor the government should fear the ECHR, nor should they operate with their eyes on the law rather than on the enemy; for the judgment makes it clear that if they have done their jobs then there will be no liability. Furthermore, the judicial role is a limited one: it does not prevent deployments or dictate operational decision-making, it will provide some limited and retrospective access to justice for the families of soldiers but primarily it will help the government and the military shape future operations in a way that fulfils their positive obligations under human rights law. This will not undermine the effectiveness of war-fighting, in fact it will help to ensure that soldiers have a better chance of both war-fighting success and survival.

While Lord Mance (for the minority) agreed with Lord Hope that the UK had jurisdiction over soldiers within the terms of Article 1 ECHR,26 he disagreed with the majority that the European Court of Human Rights would stretch its jurisprudence to identify positive obligations on contracting states to protect the lives of soldiers when deployed to combat situations.27 He believed the Court would not “invade a field which would involve … extensive and highly sensitive review with the benefit of hindsight” of the UK’s “policies, strategy and tactics relating to the deployment and use of its armed forces in combat”.28 He warned that the approach of the majority would lead to the “judicialisation of war”,29 and instead he argued, in effect, that such matters were non-justiciable ie not appropriate for judicial decision.

The Courts have, over the years, gradually asserted jurisdiction over executive powers but they have been reluctant to exercise it on the basis that matters of high policy (such as going to war) are decisions for the executive and not for the courts. While this remains true for questions of the legality of war where the Courts do not pass judgment upon the legality of the UK’s deployments,30 this is not the issue raised by Smith v MOD. That case raised issues of the human rights of soldiers once deployed and it cautiously extended the coverage of the ECHR to those soldiers. The majority in Smith v MOD was careful not to encourage a rash of claims by indicating that it would have to be a serious failure in operational or policy planning or procurement that would breach these obligations. This rights-based approach, although a cautious one, supports the military covenant between the country and its armed forces—that soldiers are there to serve their country but in return we owe them duties, not only to look after them if injured and their families if soldiers are killed, but also we owe them a basic duty to protect them from poor decision-making that leads to unnecessary loss of life.31

Limitations on the Application of Human Rights

Jurisprudence under the ECHR has not resulted in the application of every aspect of the Human Rights Act and the ECHR to individuals (soldiers and civilians) involved in British military deployments overseas. First, the Court must establish that the UK has jurisdiction over the individuals in the sense of Article 1 ECHR; second, the Court must decide, in the circumstances, what rights are applicable to the individual and then; third, it must judge whether those rights have been breached. In Smith v MOD the Supreme Court found that soldiers were within the jurisdiction of the UK for ECHR purposes, and that the positive obligations under the right to life were applicable in principle, but left the final decision for trial while casting doubt upon whether there had been a breach.

For civilians in countries to which British troops are deployed it is harder for them to progress to the third question. Following the European Court of Human Rights in Al-Skeini, jurisdiction is not automatic since claimants must establish that the UK exercised public powers either over the area in which they were present at the time of the alleged violation or over them personally, for instance by means of arrest and detention. With reductions in the level of British troops it seems less likely that British deployments will be able to effectively occupy or otherwise control tracts of territory, so it remains questionable whether civilians who lose their lives during a limited military operation would be within the jurisdiction of the UK for the purposes of the ECHR. If the UK is part of a multilateral operation occupation or other forms of effective control may be undertaken, but it remains the norm in these operations for each national contingent to operate within a specific area of the country, again raising the question of whether the UK would have sufficient forces to do that.

There is some limited jurisprudence from the Inter-American Commission on Human Rights, for making an argument that when soldiers fire weapons at individuals they are, in effect, asserting jurisdiction over them for the purposes of human rights law.32 However, the orthodox view is that found in the General Comment of the Human Rights Committee in 2004 where it stated that parties to the International Covenant on Civil and Political Rights must ensure the human rights of persons “within the power or effective control of the forces of a State Party acting outside its territory”.33 Unless such power or effective control is exercised by UK forces human rights law is inapplicable.

LOAC will apply if UK forces are engaged as combatants in an armed conflict. Direct use of lethal force against civilians is a breach of LOAC, as civilians are protected persons, but indirect collateral civilian losses are permitted, when making targeting choices, if the prospect of such losses is outweighed by the “concrete and direct military advantage anticipated”.34 In the circumstances of war LOAC applies with its balance between military necessity and humanity. This makes practical sense in that where the UK exercises extraterritorial power or effective control then the standards of human rights law applies to civilians, where it does not and UK forces are engaged in an armed conflict then the standards of LOAC apply.35 Civilians are protected under both regimes but the level of protection varies according to the circumstances. Human rights law and LOAC are not, therefore, at loggerheads but work in a complementary way. This is not always the case as the next section will show, but it is often possible to work out how LOAC and human rights law are allies and not enemies.

Detention: When Human Rights and LOAC Conflict?

A somewhat discredited view is that LOAC, as the lex specialis, qualifies human rights law as the lex generalis. This is where most academic literature has been focused following jurisprudence of the International Court of Justice.36 Although the lex specialis/lex generalis division does not work in a broad sense it does make sense in two cases where the specific rules of LOAC will prevail. The first has been mentioned above and occurs when a soldier kills an enemy soldier in the course of an armed conflict—this is not seen as a violation of the right to life under human rights law. Similarly, the death of a British soldier in battle is not, by itself, a violation of the right to life by the UK. This is implicit in the ECHR, Article 15 of which provides that derogations are not permitted in respect of right to life, except in respect of deaths caused by lawful acts of war. Furthermore, it is unlikely that human rights law is applicable in the circumstances of one soldier killing another as this does not represent the assertion of jurisdiction in the sense of human rights law.

The second exception is that of prisoners of war who are detained in humane conditions until the conflict is over. Such prisoners, although under the power and control of the detaining state, are not viewed as being detained without charge or trial in violation of the right to due process and fair trial. While there is no express human rights treaty provision to support this there is plenty of state practice to establish the legality of detaining prisoners of war in accordance with the Third Geneva Convention of 1949 for the duration of a conflict, at the end of which they should be released and returned to their home state. States have effectively agreed that this is lex specialis in the circumstances of PoWs. In effect, the combat immunity which soldiers have for killing enemy combatants is continued when captured, in the sense that PoW status protects them from prosecution for lawful acts of war.

However, there is a serious problem of conflict between human rights and LOAC when forces detain individuals in the belief they constitute threats to security. Detainees are not captured regular soldiers and, therefore, do not qualify as PoWs, neither are they civilians arrested and charged with crimes who have been placed in detention awaiting trial.37 Under LOAC administrative detention or internment should only be used for imperative reasons of security “if the security of the Detaining Power makes it absolutely necessary”.38 The Fourth Geneva Convention of 1949 states that any individual who has been interned “shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board”. If internment is continued then LOAC provides for periodic review by a court or board to give consideration to the case with a view to a favourable decision if circumstances permit.39

These rules of LOAC are hard to reconcile with ECHR rights, Article 5(4) of which provides that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”. The presumption is in favour of the release of security detainees under human rights law, while under LOAC the presumption is against. The regimes could be brought closer together if review of a security detainee under LOAC is undertaken speedily by a court, but the issue of continuing detention without criminal charge or trial remains.

However, when faced with such practicalities human rights jurisprudence has shown flexibility—the concern being to make such practices as internment human rights compliant, not necessarily to outlaw the practices themselves. The Human Rights Committee in interpreting a similar provision under the International Covenant on Civil and Political Rights has stated that “if so called preventive detention is used, for reasons of public security … it musts not be arbitrary, and must be based on grounds and procedures established by law …information of the reasons must be given … and court control of the detention must be available … as well as compensation if there is a breach …. And if, in addition, criminal charges are brought in such cases” full due process and fair trial rights must be granted.40 This seems to permit internment for security reasons if the detention is made human rights compliant. Even where such processes of review of detention are established, permanent detention for security reasons would remain prohibited by human rights law.

The European Court of Human Rights, however, has shown less flexibility. In the Al-Jedda case the applicant had been interned for imperative reasons of security in a British military facility for over three years, authorised and reviewed by senior military personnel and by the UK government, on the basis of intelligence that was not disclosed to him. He was able to make written submissions to the British authorities but there was no provision for an oral hearing, nor was it intended to bring any criminal charges against him. The UK government had not derogated from Article 5 ECHR (on the right to liberty and security of person) and therefore the Court held that preventive detention was not permitted where there was no intention to bring charges within a reasonable time.41

Much of the UK government’s arguments before the Court in Al-Jedda had been to try and establish that the applicant’s human rights were overridden by obligations arising from a Security Council resolution,42 and very little effort was spent trying to justify the internment in human rights terms. This is probably due to the fact that it clearly breached human rights. The judgment does not prevent the UK from using internment but only for limited periods. Indefinite detention amounts to imprisonment without charge or trial, and is clearly contrary to basic human rights standards. The question remains whether the UK could extend the period allowed by means of derogation.

Derogation

It follows from the above analysis that there is a problem of conflicting LOAC and human rights obligations in the area of detention. While detention of PoWs captured during an international armed conflict is permitted, there is no entitlement to PoW status in a non-international armed conflict, for instance when the UK is present in another country with the consent of the government and is fighting insurgents. Preventive detention is what the military requires for captured insurgents although the treaty rules of LOAC only clearly provide for this in the case of international armed conflicts.43 However, an ICRC study of customary LOAC rules identifies a rule from state practice to the effect that “persons deprived of their liberty in relation to non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist”.44 Human rights law indicates that such detention must be reviewable and then only temporary. Since captured insurgents or other security detainees are not protected personnel, entitled to PoW status, they could be charged and tried for crimes. Thus, the UK could either detain them temporarily for imperative security reasons and release them, or detain them and then hand them over to local authorities for fair trial. Alternatively, the UK could derogate from Article 5 ECHR to allow for longer periods of preventive detention before trial or release, subject to there being proper review.

Article 15 ECHR provides that in times of “war or other public emergency threatening the life of the nation” any ECHR state may take measures derogating from its obligations under the Convention (with certain exceptions such as freedom from torture) to the extent strictly required by the exigencies of the situation. Article 15 is itself evidence that the ECHR was meant to be applicable during wartime but it also shows that it was intended to give states leeway to suspend human rights, if necessary, including the right to liberty in Article 5 ECHR. There are strong arguments to say that preventive detention is absolutely necessary to address a violent insurgency—it is better to detain captured insurgents rather than kill them,45 but that necessity does not dictate an absence of judicial oversight of detention. Human rights can be reduced but not eliminated. Furthermore, it is argued that Article 15 ECHR suggests that war per se threatens the life of the nation and that it is not necessary to prove that it does, unlike in the case of “other public emergencies”.

The UK Supreme Court in Smith v MOD, however, interpreted the phrase “threatening the life of the nation” in a way that suggests the power to derogate is only available in an exceptional situation of crisis or emergency, which “affects the whole population and constitutes a threat to the organised life of the community of which the state is composed”.46 From this the Court concluded that the power of derogation could only be exercised in circumstances far removed from those where the UK conducts military operations overseas with a view to eliminating threats to the UK’s security.47 This seems a problematic interpretation given that a war or armed conflict did exist in Iraq, which is arguably enough to trigger the right of derogation. It could also be argued that the armed conflict threatened the life of Iraq, and that the UK was there on the basis of agreement with the government of Iraq to protect that country. While the life of the UK was not threatened that of Iraq was, and the UK was acting not only to protect its own security but to preserve Iraq. A purposive interpretation of Article 15, based on the ECHR as a “living instrument”,48 should allow the UK to derogate from the ECHR in such circumstances. Furthermore, this part of the judgment in Smith v UK was only obiter as the UK had not derogated from ECHR obligations. In future operations a limited derogation from Article 5 ECHR to allow for extended detention with judicial oversight should be possible.

Conclusion

In Smith v MOD all the judges accepted that the UK had jurisdiction over its troops in Iraq for the purposes of the ECHR. This has not yet been confirmed at the level of the European Court of Human Rights Law, but is likely to be. This does not mean that all the rights listed in the ECHR are applicable to UK operations overseas. In fact, the rights that are often in issue are very few (principally the right to life of soldiers and civilians, to freedom from arbitrary detention of civilians, and to freedom from torture or inhuman treatment of civilians). Nevertheless, even with the establishment of ECHR jurisdiction over troops it is very difficult for claimants to establish that the due diligence obligations of the government towards soldiers to protect their right to life have been breached. This is because issues of resource allocation which lay behind much of the procurement issues and levels of equipment are not primarily decisions for judges but are issues for politicians. Such decisions should activate mechanisms of political accountability, before Select Committees and, if necessary, by public inquiries. Judicial accountability should only be activated where the governmental or operational decisions to deploy allegedly underequipped or undertrained troops to deal with emergency situations is so unreasonable that there has been a manifest failure to protect the lives of soldiers. The right to life of soldiers is protected but this does not prevent deployment or operational effectiveness.

More broadly, the government’s due diligence obligations will have been largely fulfilled if it can show that it had a clear process of planning and procurement that took account of the potential negative impact of the operation on the rights of soldiers (to life) and civilians (to life, freedom from arbitrary detention and freedom from torture), and that this process had minimised those impacts. Commanders on the ground must also show that in their decision-making process, which can be very constrained in the heat of battle, they have duly considered the impact of specific operations on the applicable rights of soldiers and civilians. That decision-making must be judged in real time and not with the benefit of hindsight. It follows that only manifestly poor decision-making by commanders will be judged to have breached obligations of due diligence when such decision-making leads to human rights violations.

Derogation from human rights is allowed in cases of war or other instances when the life of the nation in threatened. The living instrument idea (that the European Convention develops with time) should accommodate the exceptional circumstances of expeditionary warfare. Just as the living instrument idea justifies the extraterritorial extension of human rights to soldiers in Iraq so it should recognise the extraterritorial extension of states of emergency to situations like Iraq. The UK Supreme Court in Smith v MOD suggested that the UK could not derogate in these circumstances, but this issue is not settled as this part of the judgment was only given obiter. A limited derogation from Article 5 ECHR to allow for reviewable preventive detention in cases of insurgency amounting to an armed conflict would be a legitimate practical compromise between the rules of LOAC and those of human rights. Making LOAC human rights compliant will require a practical interpretation of human rights law if the latter is to work in the context of armed conflict.

November 2013