UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence submitted by Michael Meyer OBE,
Head of International Law, British Red Cross

1. I am pleased to provide this written submission to the current Defence Committee Inquiry on "UK Armed Forces Personnel and the Legal Framework for Future Operations". As Head of International Law at the British Red Cross Society for over thirty years, I have been responsible for all matters pertaining to international humanitarian law (IHL), in accordance with the Society’s formal responsibility in this field. In particular, the British Red Cross, as an officially recognised humanitarian auxiliary to the public authorities (and specifically to the medical service of the armed forces), has a duty to support the UK Government in ensuring respect for IHL and facilitating its promotion. This duty is, in part, carried out through the provision of advice and training on IHL for a range of relevant stakeholders in the UK.

2. I note that, as part of this Inquiry, the Defence Committee wishes to examine the broader issue of the relationship between IHL and international human rights law. This is understandable, given that determinations on the application of these two bodies of law in situations of armed conflict can have significant practical implications for military operations and for the protection of individuals. My own brief views on this complex issue are set out below. I wish to emphasise that these are offered in a personal capacity, and do not necessarily reflect the views of the British Red Cross.

3. IHL and international human rights law, while generally complementary, are two distinct bodies of law. While both bodies o f law share some common goals - namely, to protect the lives, healt h and dignity of human beings - they do so from different perspectives. Importantly, IHL was specifically developed to regulate a unique set of circumstances: the conduct of parties to an armed conflict. I n regulating such behaviour, IHL seeks to establish a balance between the war-fighting objectives of the adversaries and the requirements of humanity. In contrast, human rights law seeks to protect persons from abusive power by governments, the latter to be curbed through the assertion of individual rights . Consequently, w hereas IHL aims to protect, so far as possible, certain categories of persons affected by armed conflict, and to limit (but not to eliminate) the methods and means of warring parties, human rights law sets out inherent entitlements belonging to all individuals.

4. IHL and human rights law also differ in scope. While, with some exceptions, IHL applies only during situations of armed conflict, human rights law applies at all times. The extra-territorial application of human rights law, as well as its ability to bind non-State groups, are questions that remain broadly unsettled. In contrast, IHL explicitly applies both to State armed forces and to non-State armed groups, whether operating within or outside their own territories.

5. The relationship between the two bodies of law in situations of armed conflict is generally agreed as that between specialised law, or lex specialis (i.e. IHL) and general law (i.e. human rights law). However, the exact application of the lex specialis rule has come under dispute; this is particularly so in those situations where treaty rules of IHL are more sparse or rudimentary (for example, in situations of non-international armed conflict).

6. My own view is that a correct application of the lex specialis rule requires the interpretation of more general rules of law applicable in armed conflict (including human rights law) through the ‘lens’ of IHL. For example, the interpretation in armed conflicts of the human rights norm protecting against arbitrary deprivation of life is dependent upon the application of relevant IHL principles, including distinction, military necessity and proportionality. This means that, while IHL prohibits direct or indiscriminate attacks on civilians or civilian objects, civilian deaths caused during the course of an attack on a military objective may not violate IHL if they are not excessive in relation to the military advantage gained, and where precautionary measures have been taken to minimise such deaths. Similarly, human rights rules governing the deprivation of liberty should be modified by application of relevant IHL rules, such as those allowing parties to an international armed conflict to detain prisoners of war and to intern certain civilians.

7. Where IHL rules or mechanisms are basic or few, such as in situations of non-international armed conflict, it is the primary responsibility of States to ensure their appropriate development, with the support of relevant organisations such as the International Committee of the Red Cross (ICRC) and National Red Cross and National Red Crescent Societies. The UK Government’s active engagement in recent and current initiatives to address these challenges is both welcome and important. Now, more than ever, it is vital that IHL rules and associated compliance mechanisms are both effective and fit for purpose.

8. Alternative approaches to the lex specialis rule set out above have been raised by various bodies. These range from promoting the concurrent and equal application of IHL and human rights law (so that the most suitable rule is chosen from either body of law in a given situation), to the supplementing or even replacement of IHL rules with those of human rights where the latter are perceived as offering greater protection. While attractive in theory, it is important not to underestimate the difficulty in applying such approaches in practice. Unlike human rights law, IHL was developed with a mindfulness of the need to create simple and easily understood rules that are able to be readily applied by military commanders and other persons operating in difficult environments. The practical challenges in considering an additional set of rules in operational contexts have been noted both by judicial bodies and other fora.

9. It is also important to take account of the underlying premise of IHL as a neutral body of law and the positive effect of this, both on the battlefield and in diplomatic fora. For example, IHL is indifferent to the causes of armed conflict, and in particular to whether one or other party may be classified as the aggressor or as otherwise unjust in waging war. In contrast, human rights law does concern itself with such underlying causes. It has been argued that this aspect of human rights law renders it an inappropriate substitute for the lex specialis of IHL.

10. While some authors point to the growing convergence of IHL and human rights law, there are clear and significant advantages in maintaining the distinct nature of IHL. Importantly, at a general level, IHL is specially tailored to address the unique circumstances of armed conflict, which cannot be equated with peacetime. The parallel, yet mostly separate, codification of IHL and human rights law to date may be interpreted as evidence of the desire of the international community to regulate armed conflicts, both in terms of relations between parties to the conflict and the protection of individuals, through a distinct body of law. As a major military power with a strong tradition of leadership in IHL, it is important that the UK takes proactive steps to reconfirm the primacy, continued value and distinct nature of IHL.

November 2013

Prepared 12th December 2013