UK Armed Forces Personnel and the Legal Framework For Future Operations

Written Evidence from Dr Aurel Sari, Lecturer in Law, University of Exeter

DEROGATIONS FROM THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN DEPLOYED OPERATIONS

I. Introduction  and executive summary

1 The European Convention on Human Rights (ECHR) is a key component of the legal framework governing the activities of the British armed forces. In recent years, the Convention’s application to military operations has come under growing criticism, leading commentators to call upon the Government to derogate from the ECHR during deployed operations. It is not immediately clear, however, whether or not derogations are in fact available to the UK in such circumstances. The purpose of this submission is to shed some light on this issue. The paper makes the following key points:

· the ECHR applies to deployed operations whenever British forces exercise effective control over a particular area or person, irrespective of whether they are engaged in active hostilities (sec II);

· where the ECHR applies, British forces are bound to secure either the entire range of substantive rights guaranteed by the Convention or those which are relevant to an individual, depending on the circumstances (sec III);

· where the ECHR applies, a derogation from the Convention may be highly desirable, since it appears that in proceedings under the ECHR British forces will formally benefit from the often more liberal rules of the law of armed conflict only as a result of such a derogation (sec IV);

· contrary to the jurisprudence of the House of Lords and the Supreme Court, State practice and the Strasbourg case-law suggests that derogations are available during deployed operations (sec V);

· derogations should not be looked upon as a panacea, as their legal effects may be limited (sec VI).

II. The applicability of the ECHR during deployed operations

2 The ECHR is an international agreement which is binding on the UK and its organs, including its armed forces, as a matter of public international law. [1] Pursuant to Article 1 of the Convention, the UK is bound to secure to everyone within its jurisdiction the rights and freedoms defined in Section I of the Convention. For the most part, this duty operates within the national territory of the UK. However, already in 1975 the European Commission of Human Rights accepted in the case of Cyprus v. Turkey that the scope of application of Article 1, and therefore the scope of application of the Convention itself, is not limited to the territory of the contracting parties, but extends ‘to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad.’ [2]  

3 The notion that international human rights agreements such as the ECHR are capable of extra-territorial effects is now well established, [3]   although the extent of the extra-territorial applicability of individual instruments remains subject to debate. [4]  

4 The European Court of Human Rights has addressed the ECHR’s extra-territorial reach in a successive line of cases. In the seminal case of Banković, the Court emphasized that from the standpoint of international law the concept of State jurisdiction is primarily territorial and that Article 1 of the ECHR reflects this ordinary notion of jurisdiction. [5] Accordingly, the scope of the Convention is confined primarily to the national territory of the contracting parties and its application beyond their borders is exceptional. [6] The Court also noted that the Convention ‘was not designed to be applied throughout the world, even in respect of the conduct of contracting states’, but instead operates in an ‘essentially regional context and notably in the legal space (espace juridique) of the contracting states.’ [7] However, in later cases the Court seemed to ascribe extra-territorial effects to the Convention in a broader set of circumstances and to downplay its earlier insistence that the Convention is an essentially regional instrument. [8]  

5 In Al-Skeini, the Court clarified that the regional nature of the ECHR does not imply that ‘jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States.’ [9]   The Court also clarified that the extra-territorial applicability of the Convention is triggered in two main circumstances. [10] First, under the control over persons paradigm, the Convention applies whenever the agents of a contracting party exercise physical power and control over an individual abroad, for instance by detaining him. [11]   Second, under the control over an area paradigm, the Convention applies to individuals within a particular geographical area located abroad whenever a contracting party exercises effective control over that area, for instance as a result of belligerent occupation. [12] In addition, the case of Cyprus v. Turkey establishes that the agents of a contracting party, including its armed forces, themselves remain under its jurisdiction whenever they are sent abroad. [13]  

6 The ECHR does not specify in express terms whether or not it applies to combat operations and situations of armed conflict. However, its continued applicability in such circumstances is clearly implied by Article 15, which entitles the contracting parties to derogate from their obligations under the Convention in times of ‘war or other public emergency threatening the life of the nation’. Accordingly, the European Court has entertained claims brought in relation to military operations, [14]   non-international armed conflicts, [15] belligerent occupation [16] and the right of access to court for the purposes of reviewing acts of war. [17] It is worth noting that the applicability of international human rights law in times of armed conflict is now well-established in international jurisprudence, [18]   State practice [19] as well as the practice of the United Nations. [20]

7 Consequently, the ECHR applies to British forces deployed on operations outside the territory of the UK whenever they are in effective control of a particular area or person, including members of the British military itself, irrespective of whether they are engaged in active hostilities or not.

III. Legal constraints imposed by the ECHR

8 The duty to secure the rights and freedoms guaranteed by the ECHR applies to all areas of military life. [21]   In principle, the ECHR is therefore relevant to, and may affect, all activities undertaken by or relating to the armed forces. Notable cases involving the applicability of Convention rights to the British military have included the right to life and the use of force to quell a ‘riot’, [22] the right to private life and discharge from the armed forces on the grounds of homosexuality [23] and the right to a fair trial and the military court martial-system. [24] These and other cases have been extensively reviewed elsewhere. [25]

9 Convention rights are also relevant during deployed operations, although an important distinction must be drawn here between the two paradigms of extra-territoriality. Whenever British forces exercise effective control over an area outside the national territory of the UK, Article 1 imposes a duty on the UK to secure the entire range of substantive rights set out in the Convention within that particular geographical area. [26] By contrast, the European Court has now accepted that where the extra-territorial applicability of the Convention is triggered by the exercise of control over an individual pursuant to the personal control paradigm, a contracting party is required to secure only those rights which are ‘relevant to the situation of that individual.’ [27] In such cases the scope of the duty to secure Convention rights seems to depend on the nature and level of control exercised by a contracting party over the individual in question.

10 Notwithstanding this concession, it may be questioned whether the duty to secure Convention rights and freedoms during deployed operations is compatible with operational effectiveness. Two broad concerns have been expressed in this respect: first, that the applicability of the ECHR significantly restricts the military’s freedom of maneuver and, second, that it has a corrosive effect on the warfighting ethos by making the armed forces more risk averse. To counter this trend, it has been suggested that the Government should derogate from the ECHR whenever it deploys the armed forces overseas. [28]  

IV. Derogations and military operations

11 Pursuant to Article 15 of the ECHR, the contracting parties may take measures derogating from their obligations under the Convention in time of ‘war or other public emergency threatening the life of the nation’, subject to various procedural and substantive requirements. The effect of such a derogation is to restrict or suspend, but not extinguish, [29]   the applicability of the relevant Convention rights ‘to the extent strictly required by the exigencies of the situation’. [30]

12 No contracting party has ever relied on Article 15 to derogate from its Convention obligations specifically with regard to extra-territorial military operations. Ten contracting parties have appended reservations to their instruments of ratification pursuant to Article 57 of the Convention to exclude its applicability to certain domestic laws concerning military discipline. [31] However, these measures are of limited relevance here, given that they deal with a distinct subject matter and constitute an entirely different type of legal instrument compared to derogations. While it is fair to conclude that these reservations reflect ‘a need for the military to be treated differently’, [32] the European Court of Human Rights has already recognized this need of its own accord, at least as far as the internal relationship between the armed forces and its individual members is concerned, outside the context of Article 15 and 57 of the Convention. [33]

13 The failure to make use of Article 15 during military operations, in particular those involving active hostilities, may have significant legal implications. This emerges clearly from the jurisprudence of the European Court on Chechnya. Since the Russian Federation did not avail itself of Article 15 during the Chechen conflict, the Court found that its military operations had to be judged against the ‘normal legal background’ of peacetime law enforcement and not against the legal framework governing the conduct of armed hostilities. [34]   In the absence of a derogation, the use of lethal force by the Russian armed forces was therefore permissible only to the extent that it was absolutely necessary and served one of the purpose enumerated in Article 2 of the Convention, such as the defence of any person from unlawful violence. By contrast, the law of armed conflict entitles States to employ lethal force on a far more liberal basis, permitting the targeting of persons based on their status or activities rather than on the basis of absolute necessity and the need to protect others from unlawful violence. The Chechen cases demonstrate that the contracting parties do not benefit from this more liberal regime unless they formally derogate from the Convention. [35] Compelling legal reasons exists, therefore, for the contracting parties to make use of Article 15, at least during certain types of military operations.

14 This position may be contrasted with the one pertaining under the International Covenant on Civil and Political Rights (ICCPR), which stipulates in Article 6 that no one shall be ‘arbitrarily deprived of his life’. It is widely recognized that what amounts to an arbitrary deprivation of life in the context of an armed conflict depends on the relevant rules of the law of armed conflict. [36] In times of hostilities, the requirements of Article 6 are thus tempered by applying them subject to the special rules of the law of armed conflict. [37] The more rigid wording of Article 2 of the ECHR does not permit the same approach. While this has not prevented the European Court of Human Rights from relying on the substantive standards of the law armed conflict without admitting as much, [38] demonstrating thereby that it is sensitive to the need to take account of the special circumstances presented by emergency situations even in the absence of a formal declaration of emergency or a derogation, this sensitivity only goes so far. In particular, the Court will continue to assess the use of lethal force against the standard of absolute necessity and the aims listed in Article 2(2) of the Convention, rather than measure it against the benchmark of the principle of military necessity and adopt a position of indifference towards the reasons justifying recourse to lethal force in the first place, as does the law of armed conflict. [39] In other words, the Court will not switch from a law enforcement framework to a conduct of hostilities framework, except as a consequence of a derogation under Article 15. [40]

V. Are derogations available in deployed operations?

15 While derogations may be legally desirable in deployed operations, it is unclear whether Article 15 does in fact apply to such situations at all. This is so because the war or emergency justifying the derogation must be one which threatens the ‘life of the nation’. The term ‘nation’ refers to the contracting party making the derogation. Although most overseas deployments of the British armed forces pose certain risks to the UK, none of the deployments taking place in recent decades have entailed what could convincingly be described as 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.’ [41] Indeed, as Lord Bingham pointed out in Al Jedda, ‘[i]t is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.’ [42]

16 While overseas operations seldom pose a threat to the UK of the magnitude envisaged by Article 15, a convincing argument can be made that such exceptional situations of crisis or emergency do prevail in the territory of some of the States-such as Iraq and Afghanistan-in which British forces deploy. This raises the question whether Article 15 can be construed in such a way as to extend the meaning of the term ‘nation’ to cover those third States. Such an interpretation is certainly intuitive: if the duty to secure Convention rights applies in an extra-territorial manner, then it is only appropriate that derogations should be available to the contracting parties in those circumstances too. [43] Contrary to the position taken by the House of Lords and now by the Supreme Court, this interpretation also finds support in State practice and the case-law of the European Court of Human Rights.

17 As already noted, in Al-Jedda Lord Bingham held that deployed operations are unlikely to ever pose a sufficiently serious threat to sending States that would satisfy the stringent criteria laid down in Article 15. However, he also added that Article 15 was ‘inapplicable’ to deployed operations as a matter of treaty interpretation. In his Lordship’s view, the fact that no State has ever derogated form the Convention during deployed operations constituted ‘subsequent practice’ within the meaning of Article 31(3)(b) of the Vienna Convention of the Law of Treaties, which, in his view, confirmed that Article 15 was inapplicable in such circumstances. This assessment, which was recently upheld by the majority of the Supreme Court in Smith, [44] rests on a false premise. The State practice in question is not a positive action, but an omission. States abstain from acting in a certain way for all kinds of reasons, both legal and non-legal. For example, the UK did not derogate from the Convention during the Falklands War, a situation where the legal conditions for invoking Article 15 were undoubtedly satisfied. Taken on its own, the Government’s failure to invoke Article 15 in that particular context does not prove that it considered itself unable, as a matter of law, to do so: whether or not its failure to make use of Article 15 during the Falklands War was driven by legal considerations has to be established separately. [45] The same applies to the absence of State practice invoking Article 15 during deployed operations: whether or not this State practice constitutes ‘subsequent practice in the application of the [ECHR] which establishes the agreement of the parties regarding its interpretation’ within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties with the effect claimed by Lord Bingham depends on whether or not these omissions were motivated by a belief that Article 15 does not apply to deployed operations. [46] This belief cannot simply be assumed, but most be proven. There is no evidence which suggests that any of the contracting parties to the ECHR were motivated by such a belief. In fact, the evidence points in the opposite direction.

18 As far as the UK is concerned, the Secretary of State for Defence has expressly reserved the UK’s position on Article 15 during the proceedings in Al-Jedda. [47] Moreover, in Banković, the respondent States supported their plea for a restrictive interpretation of Article 1 of the Convention by invoking the absence of derogations in the context of extra-territorial military operations as evidence of their own restrictive understanding of Article 1. [48] In other words, the respondent States submitted that their decision not to rely on Article 15 during extra-territorial military operations of the kind contemplated in Banković was motivated by their belief that the Convention did not apply to such deployments in the first place. Two significant points emerge from this. First, the respondent States have thus made it clear that their failure to derogate during deployed operations is not in fact based on a belief that Article 15 is inapplicable in such situations-contrary to what the House of Lords and the Supreme Court have assumed. Second, the respondent States have drawn a direct link between the scope of application of Article 1 and the scope of application of Article 15 of the Convention. Critically, the European Court has accepted both of these points. First, it agreed with the respondent States that ‘no State has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of Art.1 of the Convention by making a derogation pursuant to Art.15 of the Convention.’ [49] In the Court’s view, the absence of derogations thus constitutes State practice regarding the interpretation of Article 1 and not regarding the applicability of Article 15. Second, the Court disagreed with the applicants’ suggestion that Article 15 covered ‘all "war" and "public emergency" situations generally, whether obtaining inside or outside the territory of the contracting state’, and instead emphasized that Article 15 ‘is to be read subject to the "jurisdiction" limitation enumerated in Art.1 of the Convention.’ [50] In other words, the Court held that the essentially territorial application of Article 1 rendered Article 15 essentially territorial in its scope of application too. However, nothing in the Court’s reasoning suggests that Article 15 is incapable of applying in an extra-territorial manner whenever Article 1 itself applies outside the national territory of the contracting parties. Indeed, in Al-Jedda the European Court seemed to imply that Article 15 could have been invoked, in principle, in just such a way by the UK in relation to Iraq. [51]

19 Consequently, both State practice and the case-law of the European Court indicates that Article 15 is capable of applying to deployed operations, since its scope of application must be interpreted to correspond to that of Article 1 of the Convention. For these purposes, the term ‘nation’ in Article 15 should be construed as extending to any third States in which the armed forces of the contracting parties operate. While some have suggested that such a reading would constitute an exercise in ‘dynamic’ treaty interpretation, [52] it may amount to nothing more than a contextual reading of the text in line with the general rule of interpretation laid down in Article 31(2) of the Vienna Convention on the Law of Treaties.

VI. The limited effect of derogations

20 In the foregoing passages, I have attempted to show that strong legal arguments militate in favour of making use of derogations during deployed operations and that Article 15 of the Convention is in fact applicable in such circumstances. However, it is important to sound three notes of caution at this point.

21 First, whether or not derogations under Article 15 are a necessary and suitable means to counter any detrimental effects that the ECHR may have on the operational effectiveness of the British armed forces depends in large measure on the nature and extent of these effects. While it seems fashionable to assume that the Convention has a widespread and significant negative impact on operational effectiveness, it would be a mistake to take this for granted. It is vital to get both the facts and the law right, otherwise derogations may turn out to be an ineffective cure for an entirely different malady.

22 Second, it is important to stress that any measures adopted pursuant to Article 15 must comply with various procedural and substantive requirements and are subject to review by the European Court. In particular, derogations are permissible only to the extent strictly required by the exigency of the situation. Article 15 is not a blank cheque allowing governments to circumvent their Convention obligations.

23 Finally, it should be recalled that Article 15 of the ECHR does not absolve the UK from complying with any other obligations it may have under international law. [53] First, the UK will remain bound by other international human rights agreements to which it is a party, including the ICCPR, which the Government has recognized applies to the armed forces overseas. [54] Second, the UK also remains bound by any human rights norms forming part of customary international law; the effect of a derogation on these customary norms is unclear. Third, British forces are subject to a duty to respect local law during any overseas deployments, including any human rights norms applicable as a matter of the domestic law of the territorial State. Fourth, following the accession of the European Union to the ECHR, the latter will bind the UK as a matter of Union law; the effect of Article 15 on the continued applicability of the Convention in the form of EU law is unclear. Finally, in many areas the standards of conduct imposed by the law of armed conflict are similar or near identical with the standards imposed by the ECHR. Overall, even a successful derogation under Article 15 may only have a limited effect in altering the substantive standards governing the conduct of British forces.

November 2013