Session 2013-14
UK Armed Forces Personnel and the Legal Framework For Future Operations
Written Submission from Dr Katja Samuel
Barrister, and Lecturer at the School of Law, University of Reading (Lieutenant Commander Royal Navy retired)
EXECUTIVE SUMMARY
This submission is not intended to be comprehensive and does not seek to examine all possible and relevant issues from (international) law and policy perspectives. It is focused instead primarily on four areas of particular concern, as follows.
Broader contexts of the relationship between human rights obligations and security imperatives
· The UK’s heritage is at the forefront of the development of international human rights standards, and should not be forgotten. Specifically, in the aftermath of World War II, the UK participated in the drafting of the European Convention on Human Rights (ECHR) – a document considered necessary for civilised nations to live in peace through abiding by minimum human rights standards.
· There has however been a discernible trend recently by the UK Executive (regardless of party affiliation) and its adherents to blame human rights obligations for unduly hindering the Executive’s ability to respond effectively to security imperatives. This trend is illustrated by the emotive terms utilised by the Executive following court rulings adverse to the Government on human rights issues. As a consequence, concerning proposals have been aired, ranging from derogating or withdrawing from the ECHR, to repeal of the Human Rights Act 1998 and its replacement with a British bill of rights, potentially diluting human rights standards and permitting lower standards of executive accountability.
· Nonetheless, the ECHR and International Covenant on Civil and Political Rights 1966 (ICCPR) were each drafted in contexts of security situations, and thus have inbuilt mechanisms to accommodate legitimate security imperatives. The ‘language of balancing’ - arguments that the more significant the security threat the more justifiable it is to depart from established principles and standards – which is so evident in some UK policies and practices , continues to be robustly rejected by the European Court of Human Rights ( ECtHR ), and should be avoided to prevent human rights violations.
Impact of international human rights law on overseas military operations
· The potential reach of the recent Supreme Court decision in Smith and Others [2013] should be kept in perspective. The Court reiterated key principles: a state may only be found to be exercising extra-territorial jurisdiction under the ECHR in exceptional circumstances; the scope of an extra-territorial right is limited . In Smith and Others , the Court extended Article 2 ECHR right to life obligations to the planning phase and conduct of military operations during an armed conflict only to the extent realistic and proportionate, with states enjoying a wide margin of appreciation ( ie discretion); further, it noted that while combat immunity does not extend to earlier training and preparation phases (to the extent realistic and not excessively burdensome to battlefield decision-makers), combat immunity does apply to actual or imminent armed conflict.
· Regarding the extent to which international human rights obligations could impact operational decision-making, these largely civil obligations reside with states (exercised through their agents including military commanders), and thus are determined by Government, particularly the Executive and Treasury. There is in fact no personal civil liability for individual military/civilian commanders. Battlefield commanders may only have personal criminal liability under international humanitarian and criminal law, eg, for ordering or allowing the commission of war crimes.
Possible derogation from ECHR provisions
· The ECHR is a significant benchmark for measuring a state’s human rights compliance as well as legitimacy in various matters. Unfortunately, Smith and Others has blurred the debate, leading to suggestions that derogating from the ECHR poses a possible ‘solution’. Article 15(2) ECHR, however, does not permit derogation ( ie temporary suspension) from the Article 2 ECHR right to life except in relation to ‘death resulting from lawful acts of war’ , which was not the basis of the decision in Smith and Others . Therefore, blanket derogation would not achieve the objective of limiting or preventing the extra-territorial reach of the ECHR and/or of the consequential civil liability of the UK Government.
· Significantly, other Contracting Parties to the ECHR face similar security imperatives as the UK, and presumably also civil liability issues, yet have not derogated from their obligations.
· More generally, depending on the scope, length, etc, of even those derogations permitted pursuant to Article 15 ECHR in the context of service personnel deployed overseas, there is always the risk that what should in fact be limited, exceptional measures could become the norm, particularly in the context of a ‘war against al Qaeda’ which has no foreseeable end.
Far-reaching implications of UK withdrawal from the ECHR
· An alternative method suggested by some of avoiding liability as in the case of Smith and Others is to withdraw entirely from the ECHR. This would undoubtedly have a significant impact however, not only on the UK’s international standing in human rights matters, but also upon its international standing more generally. Specifically, the potential consequences of withdrawal from the ECHR could adversely shape the future political, economic, legal , etc, standing of the UK within the international community for decades to come, including its strategic identity and partnerships, whether more closely aligned to Europe, or to the US.
· While being a Contracting Party to the ECHR does not appear to be an explicit requirement of membership of the Council of Europe, withdrawal from the ECHR by an existing Contracting Party is quite without precedent ; it is very difficult to see how withdrawal would be compatible with the Council’s underpinning principles, goals, and membership criteria.
· In turn, regarding EU membership, being a Contracting Party to the ECHR today appears to form an important integral element of EU governing principles, particularly since the coming into force of the Lisbon Treaty in late 2009. There is also no precedent of any EU Member State having sought to withdraw from the EU. That said , it is likely - in the absence of express, countervailing political or legal policies or obligations - that the ECHR now forms such a core element of the EU’s constitutional principles that it is an indivisible requirement of EU membership. The ultimate test of such a proposition may yet require a ruling from the EU Courts, but such potentially wide reaching implications of withdrawal from the ECHR should be considered.
SUBMISSION
Introduction
1. The current submission does not intend to be comprehensive in terms of seeking to consider all potentially relevant issues. Instead it identifies and focuses on four key issues which fall within the inquiry’s remit of particular concern to the author: the broader contexts within which perceptions of human rights obligations, particularly by the Executive, are often located; the impact of international legal obligations upon operational decision-making; the possible implications of derogating from the European Convention on Human Rights 1950 (ECHR), in whole or in part, during deployed operations by UK Armed Forces; and the possible consequences if the UK were no longer a Contracting Party to the ECHR.
Current Contexts: Perceptions of Human Rights Obligations
2. In recent years, there have been a number of criticisms regarding the reach and effect of the UK’s human rights obligations, created in part by a minority of high profile judgments of the UK’s higher courts and the European Court of Human Rights (ECtHR). More specifically, in the context of responding to national and international security imperatives, there has been a discernible trend by especially the Executive arm of Government (regardless of its political affiliation), together with a range of other proponents, to blame international human rights obligations [1] for unduly hindering the ability of Governments to respond effectively to security. This is clearly illustrated by intense frustrations created by over a decade of court cases and negotiations to deport the radical Muslim cleric, Abu Qataba, to Jordan to face trial for terrorism charges, which involved considerable financial costs (an estimated £1.7 million), [2] manpower time, as well as embarrassment for the Executive. Eventually, Abu Qataba was deported to Jordan on 7 July 2013 to face a retrial on terrorism charges, once a legally binding agreement had been reached between the UK and Jordanian Governments that evidence obtained by torture would not be relied upon in Jordanian court proceedings against him. [3]
3. Such criticisms of international human rights obligations are commonly couched in emotive language, such as the ECHR being a ‘weapon’ that can be deployed against the Government, including against the Ministry of Defence, by those UK or foreign nationals claiming the violation of particular rights during deployed military operations. [4] These have resulted in various suggestions being made ranging from the UK repealing the Human Rights Act 1998, [5] derogating from some of its obligations under the ECHR during deployed operations, or even leaving the ECHR altogether. (On the latter two points, see paras 16-23, and 24-29 respectively). For example, following the eventual deportation of Abu Qataba, the Home Secretary, Theresa May, expressed her intention to review and change existing human rights legislation, such as the many layers of appeals available to foreign nationals the Executive wishes to deport. She further expressed her intention to examine all options to prevent the recurrence of such a scenario and what she termed ‘the crazy interpretation of our human rights law’ by the courts, including the possible withdrawal from the ECHR itself (one immediate effect of which would be to prevent the ECtHR from having any jurisdiction over the UK and the judgments of its courts), and possible repeal of the Human Rights Act 1998. Similar sentiments have been expressed by Prime Minister Cameron and Secretary of State Grayling, namely to make it part of the Conservative Party’s next election manifesto that the current Human Rights Act be repealed and replaced with a British bill of rights. Comments made in this regard suggest lesser standards of protection for those persons believed to pose a threat to national security. [6] This submission highlights some of the possible consequences that would result from such courses of action.
4. The frustrations and accompanying realities, including the significant financial implications of related litigation, together with sometimes obscure or inconsistent judgments on key legal principles - notably in the current context regarding the exact parameters of the extra-territorial reach of the ECHR [7] - are fully recognised. Nevertheless, such discourse, often influenced by heightened emotions, is deeply concerning from a rule of law perspective at multiple levels. First, great care should be taken not to vilify fundamental human rights that have been a force for much good, not only in appropriately protecting individual fundamental human rights, but also in ensuring appropriate levels of accountable Government as a cornerstone principle for any democratic Government. Even at the national level, while the Executive has often criticised the Judiciary for constraining their activities in relation to how particular security imperatives are being met, [8] this is the hallmark of a functioning democracy, namely the appropriate separation of powers between the Executive, Judiciary, and Legislature which allows the exercise of power to be scrutinised and where necessary checked. It would be contrary to fundamental constitutional principles for the Judiciary to be overly constrained in this critical role, a practice which is generally associated with repressive and authoritarian regimes. Indeed, the Judiciary is often deferential in its review of Executive policies and practices on security related matters, recognising that the Executive is best placed in terms of being more fully appraised of all relevant considerations, thereby allowing it considerable discretion. [9]
5. Nor should the context in which the ECHR (and similarly the International Convention on Civil and Political Rights 1966 (ICCPR)) was negotiated, and the UK’s key role in those negotiations, be forgotten. The ECHR was drafted and subsequently adopted as an international treaty in the aftermath of World War II as part of the efforts of the Allied Forces to build a durable civilisation within Europe based on democratic principles. The UK was a major player in terms of drafting the text of the ECHR as well as being among the first group of Contracting Parties to sign then ratify it in 1951. While the interpretation and reach of the ECHR as a ‘live instrument’ have developed significantly since its creation, sometimes in unexpected ways, nevertheless its founding objective of articulating minimum common human rights principles and standards was believed to be necessary in order for nations to exist peaceably alongside each other, as remains true today. Furthermore, as is examined in more detail below (paras 16-23), the ECHR has inbuilt mechanisms for Contracting Parties to respond to security threats.
6. One other important contextual matter should be mentioned here, namely the discernible wider trends regarding the UK’s responses to terrorism and counter-terrorism. An inherent tension exists between the critical need for governments to respond effectively to terrorist threats and activities – itself a fundamental human rights obligation residing upon states to provide adequate levels of protection in their territories – and their continuing respect of applicable international law obligations. [10] Commonly, national policies and practices, including those of the UK, can reflect the belief that the more serious the perceived security threat, sometimes anecdotally referred to as the ‘ticking bomb’ scenario, the greater the justification not fully to comply with certain established human rights law obligations. Such arguments of permissibility have been made even with respect to the breach of absolute, non-derogable obligations, typically the prohibition against torture, including by the UK.
7. This is clearly illustrated by the case of Chahal v United Kingdom, [11] which was concerned with the principle of non-refoulement, namely the obligation under international law that an individual may not be returned to their country of origin where there is a credible risk of torture or ill treatment (sometimes death may result). The ECtHR, together with other international courts and bodies, have determined that the principle of non-refoulement is underpinned by the prohibition against torture. [12] Consequently, the principle of refoulement is similarly prohibited absolutely - and cannot be derogated from, even in times of public emergency or armed conflict. [13] Despite this, in the case of Chahal the UK sought to argue for dilution of such absolute human rights obligations on national security grounds. The ECtHR was robust and emphatic in both this and subsequent cases [14] in rejecting any suggestion that it is permissible for states to prioritize or balance national security interests over or against the individual right to be protected from refoulement if the risk of torture or ill treatment after removal exists.
8. Despite this unequivocal rejection of any suggestion of balancing, the UK has persisted in such a line of argument, illustrated by the more recent case of Saadi v Italy , [15] in which case the UK was one of several Contracting Parties to the ECHR that made a third party intervention in this case . [16] Once again the UK , together with the other Contracting Parties , sought to persuade the ECtHR to reconsider the absolute approach iterated in Chahal v United Kingdom [17] to one of balancing national security (including the level of threat) against, inter alia, Article 3 ECHR prohibition against torture, due to the nature of the prevailing terrorist threats. [18] Nonetheless, c onsistent with its earlier approach in the case of Chahal, the Court w as ‘emphatic in recognizing the difficulties states face in countering terrorism, but categorical in its rebuke of the notion that there are exceptions to the absolute nature of the prohibition of torture or ill-treatment or any room for balancing’. [19]
9. It is of the utmost importance to the current inquiry that the significance of such case law, particularly the arguments made by Contracting Parties, is fully grasped. It is suggested here that such arguments are reflective of broader trends, policies, and practices by the UK Executive in response to security imperatives, which are most concerning particularly from a rule of law perspective. As one well respected practitioner has commented, such interventions ‘arguably revea[l] a shift in the approach to rights protection by certain states at least, and a questioning and undermining of even the most sacrosanct human rights protections’. [20] Suggestions made that the Human Rights Act should be repealed, that the ECHR should be derogated from during military deployments, or that the UK should no longer be a Contracting Party to the ECHR, should all be understood within the context of these broader trends. Not only do they seek a dilution of fundamental human rights protections, but perhaps even more significantly, a reduction in the available checks, restraints, and mechanisms that ultimately ensure more accountable government, which is so crucial to the maintenance of the rule of law within a democratic state.
Impact of extra-territorial reach of international legal obligations upon operational decision-making
10. There are many different issues that can arise in relation to how the term ‘jurisdiction’, stated in Article 1 ECHR, is interpreted with respect to the extra-territorial reach of specific ECHR rights and obligations for a Contracting Party, not least the complexity of the interpretative approaches that have been adopted by the ECtHR itself. [21] Most recently, these issues arose for the UK in the case of Smith and others v Ministry of Defence. [22] This case concerned claims brought under common law negligence, as well as on the basis of a breach of the Article 2 ECHR right to life, owed to British troops deployed abroad who were killed while on active duty in Iraq due to a claimed failure on the part of the Ministry of Defence to take adequate protective measures to protect their right to life under Article 2. The Supreme Court held that the deceased soldiers came within the UK’s jurisdiction for the purposes of establishing jurisdiction under Article 1, thereby opening up the possibility for a court to find on the facts that their right to life under Article 2 was violated at the time of their death. In addition, the Court held that Article 2 claims should stand and not be struck out on the ground of the defence of combat immunity or because it would be unfair, unjust or unreasonable to impose a duty of care.
11. Understandably there is concern that this case may open the floodgates to future litigious claims by the relatives of service personnel killed during deployed operations. While this judgment may well pave the way for some more successful claims in the future, it is important to keep the potential reach of this case within perspective, not least since the Supreme Court itself was at pains to reiterate established legal principles that limit the circumstances in which successful claims may be brought in similar circumstances. First, the Court referred to the principle that a state may only be found to be exercising extra-territorial jurisdiction in exceptional circumstances. Therefore, the normal presumption regarding the applicability of ECHR rights and obligations that exist in a state’s own territory is not often applicable extra-territorially. [23] Second, the Court stated that the rights afforded under the ECHR are divisible from each other. Consequently, their application can be tailored to the particular circumstances of any claimed extra-territorial violation(s). [24] Significantly too, the Court recognised that the scope of an extra-territorial right is limited. In Smith and others [2013], the positive obligations under Article 2 could only be imposed in relation to the planning phase and conduct of military operations during an armed conflict to the extent that these were realistic and proportionate. [25] On such matters, the Court further reiterated that a state enjoys a wide margin of appreciation (ie, discretion) as to how it exercises its political judgment. Therefore, a positive obligation such as under Article 2 ECHR can only arise where it is reasonable to expect its protection, which will depend on the individual circumstances of each case. [26] Significantly, the Court further held that the doctrine of combat immunity still applies to actual or imminent armed conflict. In contrast, the Court found that the doctrine does not extend to the earlier training and preparation phase of military operations, whether pre-deployment or in theatre, during which a state is expected to take all precautions that are reasonable in the circumstances. [27] Even here the Court was cautious not to impose any duties on a state that would be unrealistic or excessively burdensome to decision-makers on the battlefield, mindful of the unpredictable nature and inherent risks associated with armed conflict. [28]
12. It is equally important at this juncture to examine whether and how international law obligations may impact directly or indirectly on the operational decision-making and effectiveness of the deployed military commander, as a central concern of the current inquiry. With respect to its direct application, generally human rights obligations reside with states, not individuals. Though the actions of individuals acting as agents of the state, including military commanders, [29] can violate human rights obligations and result in civil liability on the part of the state, for example, to pay remedies to the victims or their relatives, under international human rights law no personal civil liability exists for individual military commanders. The only potential direct liability here is a criminal one where, for example, an act of torture has been committed due to the obligation upon States Parties (which includes the UK) to the Convention against Torture 1984, [30] that acts of torture be legislated for as criminal offences under their domestic law.
13. Consequently, it is respectfully submitted that the extent to which human rights law obligations, which are civil in nature, may impact upon operational decision-making is indirect only. The extent and manner in which they do are primarily determined by political (which can include the ‘CNN’ effect) and economic rather than legal factors driven by the Executive and the Treasury respectively. This is not in any way to diminish the importance or significance of such determinations. Instead, its aim is to distinguish clearly between what is directly attributable to international human rights obligations, and what is attributable to governments in terms of the policies and practices they develop. It is the latter, rather than international law obligations, that determine whether, how, and to what extent judicial decisions such as Smith and others [2013] may impact on operation decision-making in the future.
14. In contrast, the primary international law obligations that may impact directly upon operational decision-making, and which should be a primary concern of any military (or civilian) commander, are those provided for under international humanitarian law and international criminal law. The former comprises the four Geneva Conventions 1949, Additional Protocols I and II 1977, together with various Hague and other Conventions regarding the means and methods, including particular types of weapons, etc, utilised during times of international and non-international armed conflict. The laws and customs of armed conflict also include and incorporate what are acceptable baseline human rights protections. [31] International humanitarian law is interconnected with international criminal law. Consequently, specific violations of international humanitarian law – for example, grave breaches of the Geneva Conventions, [32] or other serious violations of the laws and customs applicable in international or non-international armed conflict [33] - may amount to crimes under international criminal law, normally war crimes [34] or crimes against humanity. [35] A military commander may incur individual criminal responsibility directly, for example by personally committing, ordering, or facilitating the commission of an international crime; [36] or indirectly, for example by failing in his responsibility to prevent the commission of crimes by his subordinates. [37] While these provisions are of great importance, they are not generally ones which impact upon the day to day decision-making of a military commander or the operational effectiveness of a well-trained, disciplined army.
15. It is therefore also of the utmost importance to the current inquiry that the significance of the distinction between civil and criminal liability, and the distinction between the obligations of international human rights law and international humanitarian law, are both correctly understood and kept fully in mind when considering the impact of legal extra-territoriality on operational decision-making.
Proposal and effects of derogation from the ECHR during deployed operations, and potential implications thereof
16. As was noted earlier in this submission, serious proposals have been made that the UK should derogate from at least some provisions of the ECHR during deployed military operations. One of the principal motivating factors has been the concern to prevent the extra-territorial reach of domestic obligations under the ECHR, as was found by the Supreme Court to be in the case in Smith and others [2013]. This is to prevent or at least to reduce the circumstances in which a civil claim may be brought by or on behalf of wounded or killed service personnel engaged in overseas operations, thereby reducing the associated financial burden to the Ministry of Defence/Treasury. The discussion here focuses on the international law implications of such suggestions.
17. The first observation is that, as was explained earlier (para 5), the ECHR as well as its international equivalent, the ICCPR, were drafted to enable legitimate security imperatives to be met in a manner not undermining fundamental human rights protections. Consequently, both treaties have inbuilt mechanisms [38] to deal with exceptional situations such as war or other forms of public emergency threatening the state. The relevant provision of the ECHR is Article 15 which in such circumstances permits a Contracting Party to ‘take measures derogating from its obligations under the Convention’. The ability to derogate, however, is subject to a number of constraints in order to prevent its misuse by the Executive. Under Article 15(1), any related measures must be ‘strictly required by the exigencies of the situation’; [39] and must not be inconsistent with other international obligations.
18. Article 15(2) then states that ‘[n]o derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [prohibition against torture, inhuman or degrading treatment or punishment], 4 (paragraph 1) [prohibition against slavery and servitude] and 7 [no punishment without law] shall be made under this provision’. [40] This means that regardless of the perceived gravity of a particular security situation, these rights are regarded as so fundamental that they may never be diluted or suspended, reflecting the consensus of all of the states involved in drafting and subsequently ratifying the ECHR, including the UK. With respect to Article 2, it is important to note that the Supreme Court in Smith and others [2013] limited the provision’s potential extra-territorial reach to death sustained due to a breach of the Ministry of Defence’s duty of care in the context of training and procurement, which it distinguished from an active combat situation – ‘death resulting from lawful acts of war’ under Article 15(2) ECHR. Therefore, even if the UK were to derogate from Article 2 to the extent permissible under Article 15(2), it would not achieve the objective of limiting or even preventing the possibility of civil liability arising in circumstances similar to those in Smith and others [2013]. [41] Nor would general principles of international law applicable to treaty-making permit a Contracting Party to make a reservation to or suspend a treaty provision categorised as non-derogable (in the current case, those specified in Article 15(2) ECHR) since such a reservation or suspension would almost certainly be considered an act ‘defeat[ing] the object and purpose of the treaty’. [42]
19. Furthermore, if the UK were to seek to derogate from any provisions permitted by Article 15, it would need to ensure that any related measures were not ‘inconsistent with other international obligations’ as required by Article 15(1). Consequently, it would need to suspend any parallel obligations existing under other international human rights treaties to which the UK is a State Party, notably those of the ICCPR. Additionally, it should be noted that the UK would remain bound by some of the international obligations specified as non-derogable in Article 15(2) - notably those of Articles 3 and 4 – even if it was not a State Party to the ECHR and ICCPR. The reason for this is that the prohibitions against torture and slavery fall within a special category of international law principles, jus cogens, that are not only the highest category of protection afforded under international law, but also exist under customary international law. The resultant obligations are binding on all states regardless of consent and are thus not dependent upon the existence of parallel treaty obligations. Significantly too, this means that the UK can never limit its potential liability under international law for such practices as the utilisation of any ‘coercive interrogation’ techniques amounting to torture; nor for any involvement such as complicity in practices such as extraordinary rendition, both of which have been features of counter-terrorism responses since the 9/11 terrorist attacks.
20. Several further, more general, observations may also be made here regarding the permissibility of derogations under the ECHR. One relates to the proposed scope of any such derogations, in particular whether they would apply to all overseas deployments of military personnel in response to a security imperative whether or not falling into the category of an armed conflict. If this were the case, then potentially the UK would risk any derogations becoming permanent in practice since some contingent of UK military personnel – be they Royal Navy/Marines, Army, or Royal Air Force – is always deployed overseas. This could risk becoming tantamount to a permanent state of emergency, through the normalization of what should be an exceptional, limited measure of derogation, [43] a practice normally associated with non-democratic, authoritarian and/or repressive regimes. Certainly, as the Parliamentary Human Rights Joint Committee noted in its 2009/2010 session in the context of counter-terrorism, the Government ‘has never relinquished its assertion that there is a public emergency threatening the life of the nation’ since 9/11. [44] Nor is the situation believed to have changed since the ‘war against terror’ became the ‘war against al Qaeda, which does not look like ending any time soon despite the change of political party in 2010,
21. Another relates to the perceived ‘necessity’ of any permitted suspensions, particularly in light of what other Contracting Parties to the ECHR deem necessary in the interests of national security. A case in point was the UK’s unilateral derogation on 18 December 2001 from Article 5 ECHR right to liberty (and parallel obligations under Article 9 ICCPR) in response to 9/11 in order to enact Part IV of the Anti-Terrorism, Crime and Security Act 2001 authorising the indefinite detention of foreign nationals suspected of having committed terrorist crimes. [45] Significantly, the UK was the only Contracting Party to consider derogation necessary. For example Spain - which was dealing with national terrorist threats attributable to ETA, and those posed by al Qaeda particularly following the Madrid bombings in 2004 – did not consider such derogation to be necessary. Not even states with far weaker human rights records – such as Russia which similarly has had to respond to national security threats attributable to its conflict with Chechnya as well as to al Qaeda – have attempted to make any formal derogations from the ECHR.
22. In turn, derogation is inseparably linked to the UK’s international legitimacy, including the perception thereof, on human rights matters. Ultimately, despite its inherent limitations and weaknesses – some of which have been considered here - upholding the ECHR remains the principal benchmark against which states within the geographical regions of the Memberships of the Council of Europe and European Union (EU) are assessed in terms of their compliance with international human rights standards. The power of perspective and reputation as a human rights compliant nation should not be under estimated. For example, with respect to the Abu Qataba case, the ECtHR’s spokesman at the time of the former’s deportation back to Jordan commented that the case was ‘a victory for due process and for human rights’. [46] Despite the many and diverse sources of frustration, ultimately the UK chose to abide by its international human rights obligations to ensure that even suspected terrorists such as Abu Qataba would be afforded fundamental human rights guarantees, [47] retaining its own legitimacy to speak out on human rights matters including violations by other states in such circumstances.
23. The final point concerns the wider contexts and trends discussed in the first section of this submission, within which contextualised discussions and practices concerning derogations from ECHR (or parallel ICCPR) obligations should be understood. These include concerns regarding any Executive intentions to reduce existing levels of public scrutiny and accountability for the government’s responses to security imperatives, as have been central concerns for the Human Rights Joint Committee. For example, in its 2009/10 Report it further noted that:
From time to time the possibility of derogating from the UK’s obligations under the European Convention on Human Rights is raised, including by Government ministers, usually in the wake of a significant Court decision which goes against the Government’s interpretation of the Convention [e.g. in the wake of the decision of the House of Lords in the Belmarsh case [48] ]…..Although there has been no derogation from the Convention by the UK since the House of Lords held the 2001 derogation from the right to liberty in Article 5 ECHR to be incompatible with the Convention, the risk of one being proposed by the Government in response to a Court decision it does not like is ever-present….. [49]
Consequently, the Joint Committee recommended ‘a clear statutory framework for future derogations from the ECHR, ensuring proper opportunities for parliamentary scrutiny, [to] be treated as an urgent priority in the next Parliament….to hold the executive to account in an area of policy where proper democratic scrutiny for justification is vital but all too often lacking’. [50] This has yet to come into being.
Possible consequences if the UK were no longer a Contracting Party to the ECHR
24. This final section examines what possible consequences may follow any withdrawal by the UK from the ECHR, which is an alternative option being mooted by some. It is crucial that these possible consequences are clearly identified and understood early on in any related discussions and debates. Any withdrawal is likely to have a significant impact not only on the UK’s international standing on human rights matters, but also upon its international standing more generally. Ultimately, these issues are inseparable from wider decisions regarding whether, and if so how, the UK wishes to retain its European identity and status, or indeed whether it wishes to distance itself further from European allies to align itself closer with US policies and practices. Specifically, this section examines two critical questions within the issue: whether an indivisible, automatic consequence of withdrawing from the ECHR means no longer being a Member (a) of the Council of Europe, and (b) of the EU.
25. Regarding the first question, whether withdrawal from the ECHR would also result in the UK no longer being a Member State of the Council of Europe, the starting position is the founding Statute of the Council of Europe 1949. [51] Unsurprisingly, the Statute makes no explicit mention of the ECHR since it was drafted and adopted before the ECHR was conceived in 1950. There are, however, some provisions which imply that being a Contracting Party to the ECHR is likely to be a prerequisite of Membership. Article 1(a) establishes the aim of the Council of Europe, namely to ‘achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’. Article 1(b) then states how this aim is to be pursued, which includes through the pursuance of ‘agreements [52] and common action……in the maintenance and further realisation of human rights and fundamental freedoms’. Clearly, the ECHR is central to the Council of Europe’s policies and practices both in terms of articulating the substance of such ‘ideals and legal principles’, as well as providing the principal legal framework for the pursuance of these Article 1(b) objectives.
26 . Membership criteria are then specified in Article 3: ‘ Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I. ’ While the phrase ‘accept the principles of the rule of law’ appears to be wider than just the ECHR, it is difficult to see how a state could ‘collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I’ – which is Article 1 of the Statute – without being a Contracting Party to the ECHR. Certainly, such a view is corroborated by the Council’s policies and practices regarding new membership , which makes prior ratification of the ECHR a precondition of membership. [53] While withdrawal from the ECHR as a Contracting Party is without precedent and not an explicit requirement of membership in the 1949 founding Statute , it is difficult to see how continued membership by the UK of the Council would be permissible in the light of the Council’s underpinning principles, goals, as well as membership criteria. Certainly, such an outcome seems to be endorsed by Article 65(3) ECHR, which states that ‘[a] ny High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions’, suggesting that the relationship between the Council and ECHR is inextricably linked.
2 7 . The second, related question concerns the likely impact for the UK on its continuing membership of the EU if the UK no longer is a Contracting Party to the ECHR . As with the position regarding the Council of Europe, there is no express legal requirement for a Member State to be a Contracting Party to the ECHR for EU membership . There are, however, a number of policies, practices, and treaty provisions which suggest that this may be the case. In terms of policies and practices, since the late 1990s under the EU’s process of enlargement - though not an express formal condition [54] – there appears to have been a consistent political requirement that all candidate states sign (and presumably also subsequently accede to) the ECHR as a precondition of membershi p . [55] It would appear that this has been part of fulfilling the requirement to ensure the existence of ‘[s]table institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’ required by the 1993 Copenhagen criteria for membership.
28. These criteria should also be read together with the relevant Treaty provisions. Article 49 of the Consolidated version of the Treaty of the European Union (TEU) (as amended by the Lisbon Treaty) requires applicant states to ‘respect the values referred to in Article 2’. Article 2 TEU identifies these values as being ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. In interpreting what this means in practice, under Article 6(2) the EU itself will accede to the ECHR (with the details of the relevant legal instrument currently being negotiated). The fundamental rights guaranteed by the ECHR together with ‘the constitutional traditions common to Member States’ are described in Article 6(3) as ‘constitut[ing] general principles of the Union’s law’. There are different sources influencing the furtherance of human rights within the EU, not least its own EU Charter of Fundamental Rights, jurisprudence of the EU Courts, and other principles including constitutional ones governing the EU. For this reason, accession of the EU to the ECHR will have the effect of strengthening the protection of human rights in Europe, by submitting the EU’s legal system to independent external control on human rights matters.
29. What is clear is that the ECHR now forms an important, integral element of those principles governing the EU. What is not clear, however - in the absence of clear political policies or express legal obligations, or a precedent of an existing Member State withdrawing from the ECHR - is whether the ECHR already forms or will form following the EU’s formal accession to it, such a core element of these principles that it has become an indivisible requirement of EU membership. This is a matter that probably requires a ruling from the EU Courts. Nevertheless, it is essential that these possible consequences of no longer being a Contracting Party to the ECHR are also considered by the inquiry.
Concluding Remarks
30. It is crucial not to underestimate the significant challenges, not least political and financial ones, faced by the Government in relation to civil claims attributable to overseas military and security operations brought by injured and the relatives of deceased service personnel. Nevertheless, a careful, measured, and at times less emotional response is required regarding the UK’s approach to its existing obligations under international law. On occasion this will require re-clarifying the blurred parameters of what is directly attributable to these obligations, as distinct from what is in reality attributable to other important but nevertheless non-legal considerations. [56] This is particularly true regarding the ECHR and the related organ of the ECtHR both of which feature prominently in concerns and criticisms regarding the potential impact of the existing human rights regimes on overseas military operations, as examined by the current inquiry.
31. The UK currently stands at a critical crossroads regarding not only its future relationship with international human rights obligations, but further, the rule of law more generally, including the indivisible requirement in any democratic society for appropriately accountable government in any democratic society. Furthermore, decisions made for shorter term goals could have significant longer term consequences that reach far beyond policies and discourse on human rights issues. As the potential consequences of withdrawal from the ECHR illustrate, such considerations could shape the future political, economic, legal, etc, standing of the UK within the international community for decades to come. [57] At some point, within the wider context of debates regarding the UK’s future membership of the EU in particular, the UK may be forced to decide where its future strategic identity and loyalties lie: with its European allies, who choose to remain bound by the rigours and constraints imposed by the ECHR and the ECtHR that form part of the UK’s legacy on human rights and rule of law matters; [58] or with the US, which has also been an important ally, but which from a rule of law perspective on security related matters has become synonymous with unilateralism, exceptionalism, as well as significant violations of fundamental human rights and other international obligations.
December 2013
[1] For the current purposes, the term ‘international human rights law’ refers to the UK’s obligations under the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR), and customary international law.
[2] ‘Abu Qataba deported from UK: Radical cleric lands in Jordan after being deported from Britain following decade-long battle to remove him’, The Guardian 7 July 2013.
[3] Ibid.
[4] See, eg, T Tugendhat and L Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ (Policy Exchange, London 2013) 17; others terms like ‘legal siege’ (p 14) are also used.
[5] This would be a significant retrospective step, effectively subjecting people in the UK to the same challenges that were at the forefront of arguments and efforts to introduce the Human Rights Act Bill: such as the length of legal proceedings and costs which are beyond the reach of most citizens (para 1.14); unacceptability that ‘someone should be the victim of a breach of the Convention standards by the State yet cannot bring any case at all in the British courts’ (para 1.16); and fact that ‘[a]lthough the United Kingdom has an international obligation to comply with the Convention, there at present is no requirement in our domestic law on central and local government, or others exercising similar executive powers, to exercise those powers in a way which is compatible with the Convention.’ ( para 2.2) in ‘Rights brought Home: The Human Rights Bill’, White paper (October 1997), http://www.archive.official-documents.co.uk/document/ hoffice/rights/rights.htm accessed 25 November 2013.
[6] Eg Chris Grayling has stated that; ‘I cannot conceive of a situation where we could put forward a serious reform without scrapping Labour’s Human Rights Act and starting again….We cannot go on with a situation where people who are a threat to our national security, or who come to Britain and commit serious crimes, are able to cite their human rights when they are clearly wholly unconcerned for the human rights of others.’ R Mason, ‘David Cameron eyes Human Rights Act repeal’, The Guardian (8 August 2013).
[7] Particularly pre and post the ECtHR decision in Bankovic Banković v Belgium (Application No . 52207/99) (2007) 44 EHRR SE 5.
[8] Yet, on the other hand, ‘cites judicial oversight as justification of extensions of state surveillance and control’ - ‘Abu Qataba’s deportation is a victory for the British judicial process’, The Guardian, 8 July 2013.
[9] On such themes see further, eg, KLH Samuel, ‘The Rule of Law Framework and its Lacunae: Normative, Interpretative, and/or Policy Created?’ in A.M. Salinas de Friás, K.L.H. Samuel, and N.D. White (eds.), Counter-Terrorism: International Law and Practice (Oxford University Press, 2012) 14-53.
[10] In addition to international human rights law other sources of key obligations are the UN Charter, international humanitarian law, international and domestic criminal law, and international refugee law.
[11] Chahal v United Kingdom (Application No 22414/93) 23 EHRR 413, para 80.
[12] Eg Article 3 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 is one of the few international instruments expressly prohibiting refoulement, thereby making a clear link between it and the prohibition against torture.
[13] The prohibition against torture is a norm of jus cogens ie highest category of non-negotiable, non-derogable international obligation which also exists under customary international law, therefore does not require a state to be party to a human rights treaty prohibiting torture, though most states now do. Since the principle of non-refoulement is underpinned by the prohibition against torture, it is possible that it too has jus cogens status. See further, eg, Al-Adsani v United Kingdom (Application No 35763/99) (2002) 34 EHRR 11, paras 60-1.
[14] See, eg, N v Finland (Application No 38885/02) (2006) 43 EHRR 12, para 159; Saadi v Italy (Application No 37201/06) ECtHR Judgment of 28 February 2008, para 138.
[15] Saadi v Italy (n 14) inc paras 139, 141.
[16] Third party interventions were similarly made in the case of Ramzy v The Netherlands (Application No 25424/05) submitted 15 July 2005, though the case was subsequently discontinued before judgment.
[17] Chahal (n 11).
[18] See Saadi v Italy (n 14) paras 137-9. See further H Duffy, ‘Human Rights Litigation and the ‘War on Terror’’ (2008) 90 IRRC 573, 585; D Moeckli, ‘Saadi v Italy: The Rules of the Game Have Not Changed’ (2008) 8 HRLR 534, including 541-7.
[19] Duffy (n 18) 586.
[20] Duffy (n 18) 586.
[21] See fn 7.
[22] [2013] UKSC 41. [No 2] (Smith and Others [2013]). Significantly, the Supreme Court in this case reversed its earlier ruling in Smith [No 1] in which it found that the applicants were not within the UK’s jurisdiction in the light of the subsequent judgment by the ECtHR in the case of Al-Skeini and others v United Kingdom (Application No 55721/07) ECtHR 7 July 2011 even though technically the Al-Skeini judgment (which involved claims of Iraqi nationals) did not directly compel such a reversal.
[23] Smith and Others [2013] para 46.
[24] Ibid paras 48, 77.
[25] Ibid para 76.
[26] Ibid para 76.
[27] Ibid para 95.
[28] Ibid paras 99-100
[29] Eg in Smith and Others [2013] (n 22) the Court referred to the armed forces of a state as its agents due to the control it exercises over them. In turn, that authority and control of a state is exercised throughout the military chain of command as agents of the state (para 50).
[30] Article 4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which the UK has been a State Party since 1988.
[31] See, eg, Common Article 3 to each of the Geneva Conventions, which articulates the minimum standard of obligations applicable to situations of non-international armed conflict; the standards applicable in situations of international armed conflict are more detailed.
[32] Eg Article 8(2) Rome Statute 1998 commission of wilful killing, or torture and inhumane treatment.
[33] Eg Articles 8(2)(b) and (c) Rome Statute 1998.
[34] Eg Article 8 Rome Statute 1998.
[35] Eg Article 9 Rome Statute 1998 extermination and torture.
[36] Eg Article 25 Rome Statute 1998.
[37] Eg Article 28 Rome Statute 1998 where the military commander knows or ought to have known in particular circumstances that his forces were committing or about to commit crimes; and failed to take all necessary and reasonable measure to prevent them.
[38] Article 15 ECHR; Article 4 ICCPR.
[39] The ECtHR has established that for a state of emergency to be justified, three conditions are necessary: an exceptional situation of crisis or emergency must exist; which affects the whole population; and which constitutes a threat to the organized life of the community. See eg Lawless v Ireland (No 3) (App No 332/57) ECtHR Judgment 1 July 1961 para 28. Other key principles are that any measures are proportionate to the threat triggering them; necessary; and for the minimum time absolutely necessary.
[40] Similarly, Article 4(2) ICCPR does not permit derogation from: article 6 (right to life); article 7 (prohibition of torture, cruel, inhuman, degrading treatment); article 8 (1) and (2) (prohibition against slavery and servitude). Additionally, the ICCPR does not permit derogation from article 11 (no one may be imprisoned merely on the ground of inability to fulfil a contractual obligation); article 15 (nullum crimen, nulla poena sine lege); article 16 (everyone has the right to recognition everywhere as a person before the law); article 18 (freedom of thought, conscience and religion).
[41] Certainly this was the view of Lord Hope in Smith and Others [2013] paras 59-61, who dismissed the utility, together with appropriateness, of any derogations permitted under Article 15 to resolve the kinds of issues that were before the court. Even in the case of the deportation of Abu Qataba, derogation would not have assisted since the principle of non-refoulement is underpinned by the non-derogable principle prohibiting torture which exists both in other treaties as well as in customary international law.
[42] See, eg, Article 18 Vienna Convention on the Law of Treaties 1969 (though technically not in force at the time the ECHR was drafted or came into effect); more specifically Article 57(1) ECHR: ‘...Reservations of a general character shall not be permitted’.
[43] This is a term coined by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights in its report that warned of the undermining effect of open-ended suspensions of or departures from normal procedures (eg introduction of special measures) to respond to a temporary crisis and potential of their becoming permanent – International Commission of Jurists Report ‘Assessing Damage: Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights’ (2009) 47, http://www.un.org/en/sc/ctc/special meetings/2011/docs/icj/icj-2009-ejp-report.pdf accessed 12 December 2013.
[44] Human Rights Joint Committee, ‘Counter-Terrorism Policy and Human Rights (Sixteenth Report): Bringing Human Rights Back In’ (Session 2009-10) para 11.
[45] The UK withdrew its derogation on 14 March 2005 following the decision of the House of Lords in the ‘Belmarsh detainees case’ that the derogation under Article 15 was incompatible with the ECHR on the ground that it discriminated between UK nationals and non-nationals by permitting preventive detention in relation to non-nationals only - ‘Belmarsh detainees case’ [2005] UKHL 71. This decision was subsequently reviewed by the Grand Chamber of the ECtHR in A and others v United Kingdom ( Application No. 3455/05 , ECtHR 19 February 2009), which agreed with the decision of the House of Lords that the preventive detention scheme under review violated Article 5 ECHR. It is notable that the ECtHR did ‘not accept the Government’s argument that Article 5(1) permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat’. (para 171).
[46] ‘Abu Qataba’s deportation is a victory for the British judicial process’ (n 8).
[47] ‘Abu Qataba’s deportation is a victory for the British judicial process’ (n 8).
[48] A and others (n 45).
[49] Human Rights Joint Committee Report (n 44) paras 25-26.
[50] Ibid paras 28.
[51] Article 2 of the Statute states that: ‘The members of the Council of Europe are the Parties to this Statute.’
[52] Agreements can include international treaties such as the ECHR.
[53] Eg recommended conditions of membership by Georgia included its signature of the ECHR as amended by its Protocols 2 and 11 at the time of accession; and its ratification of the ECHR and Protocols 1, 4, 6 and 7 within a year of its accession to the ECHR. See Council of Europe’s Political Affairs Committee, ‘Georgia’s application for membership of the Council of Europe Report’ Document 8275 (2 December 1998). More recently, see the Council of Europe’s own website stating this: http://hub.coe.int/what-we-do/human-rights/european-convention, accessed 12 December 2013.
[54] The Copenhagen criteria, developed in 1993, require three key conditions to be met: ‘Stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and the capacity to cope with competition and market forces in the EU; and the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union. See eg http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm accessed 12 December 2013.
[55] Even as early as 1977, it was an important factor that Greece, Portugal, and Spain were Contracting Parties to the ECHR before making their formal applications for membership of the EU. It is interesting to note that even then, the European Commission was already suggesting that the EC itself become a party to the ECHR (Bulletin EC Suppl 2/79), further suggesting the importance attached to the ECHR as part of the EC meeting its own objectives in relation to protecting and furthering democracy, the rule of law, and fundamental human rights.
[56] As Conservatives have themselves acknowledged, the current legislation has created a culture of risk aversion among public authorities, and is often misunderstood and misapplied. ‘The Government also acknowledged that a series of damaging myths about the [Human Rights] Act had taken root in the popular image.’ ‘From the Human Rights Act to a Bill of Rights?’, http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-and-liberty/from-the-human-rights-act-to-a-bill-of-rights/ accessed 16 November 2013.
[57] See, eg, comments of Judge Spielmann, President of the ECtHR in ‘UK pullout from European rights convention would be ‘total disaster’ The Guardian 4 June 2013.
[58] ‘Respect for human rights is part of Britain’s DNA. It was why, at the end of the second world war, when disrespect for human rights had devastated our continent, Europe looked to politicians like Churchill and to British lawyers to help shape and bring into being the European convention on human rights. To turn our backs on that legacy now would be a denial of their efforts, which have served us well over the last 60 years.’ Cherie Booth, ‘We must not withdraw from the European convention on human rights’ The Guardian, 12 July 2013.