UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from Martin Hemming

I am Martin Hemming, and I am a former Government Lawyer. In the course of my Civil Service career I spent 14 years advising the Ministry of Defence, including 11 years as the Department's Legal Adviser (between 1998 and 2009). In that capacity I advised on a range of legal issues arising in relation to the UK's involvement in the Balkans, in Afghanistan, and in Iraq. I am an Associate Fellow of the Royal United Services Institute and a Senior Associate Fellow at the lnstitute for Security and Resilience Studies.


2. I have been asked to submit written evidence relating to the Committee's current investigation. I have had the benefit of reading the papers already submitted to the Committee (including by some distinguished legal and military experts). I have also considered the Policy Exchange's recent report - The Fog of Law [1] . I hope in this paper to avoid the repetition of points well made by others, and to seek to focus on certain themes that I think are important. I should say, however, that I found the evidence of Dr Jonathan Morgan very compelling.

3. Most people would agree that the law should be as clear and accessible as human effort can achieve. Service personnel need and deserve to have a high degree of confidence that their day-to-day decisions in operational conditions are lawful, and that their own personal position is legally secure. If, after proper training, they feel unable to take such decisions without taking legal advice, then they may justifiably feel that something is wrong with the law [2] . Since about 2000, legal proceedings involving the MOD – including inquests, civil litigation founded on common law claims as well as the Human Rights Act 1998 (‘HRA’), and the developing jurisprudence of the European Court of Human Rights (‘ECtHR’) on the extraterritorial application of the European Convention on Human Rights (‘ECHR’) - are widely perceived as having muddied rather than clarified the legal waters, and to have raised uncertainty about the true legal position in a number of important areas.

4. The written evidence submitted to the Committee to date, and the discussion in The Fog of Law, serve to illustrate the nature of the debate, and the heightened uncertainty that underpins any consideration of the application of law to the operations of the UK's armed forces. My own view is that this debate on occasion proceeds on a flawed basis, and this can apply to all sides of the argument. In the military, as in any large people-based organisation, misconceptions can take root and soon acquire the status of established truth. And it is what individuals actually believe, whether or not it is well founded, that informs the way that they act and feel, and influences their willingness to assume responsibility and risk. Perception can be every inch as important as objective reality. This issue – and steps that might be taken for the avoidance of misunderstanding - is one of the concerns that the Committee may wish to take into account in its deliberations. Against this background, I shall turn to the Committee's topics for examination.

The legal protections and obligations applying to UK Armed Forces personnel (regular and reservists) when deployed in the UK and abroad in UK-only or coalition led operations

5. It is very important to distinguish at all times between the personal position of individual members of the Armed Forces, and the position of the UK Government. I suspect that much of the concern that has been generated by recent legal developments among those serving in the Armed Forces is influenced by a belief that they have somehow been placed at an increased risk of personal civil and criminal liability. It is worth examining the true position.

The criminal liability of member of UK Armed Forces

6. Individuals are bound by the criminal law of England and Wales wherever in the world they are serving [3] . There is no special treatment or dispensation for Service personnel. If they break the criminal law, they can face the consequences in court just like any other citizen. If there are mitigating circumstances surrounding their commission of offences, those can be taken into account in sentencing, just as in the case any convicted civilian. Service personnel are, in addition, subject to specified disciplinary offences for which they may face military justice and punishment [4] . An obvious example of such a disciplinary offence is that of disobeying a lawful order [5] .

7. If Armed Forces personnel commit offences under English law during operations, they can be prosecuted and punished if found guilty. Some actions that would be unlawful outside armed conflict will be lawful if done in armed conflict. And some offences can only be committed in situations of armed conflict. In the Court Martial concerning the death of Baha Mousa, Corporal Payne pleaded guilty to an offence under the lnternational Criminal Court Act 2001 [6] . The offence was one of those categorised as a 'war crime' by the International Criminal Court Statute, namely inhuman treatment constituting a grave breach of the Fourth Geneva Convention [7] . Such a grave breach had been a criminal offence in the UK since as long ago as the Geneva Conventions Act 1957. The recent conviction of Royal Marine Sergeant Alexander Blackman was for the common law offence of murder.

How the HRA and ECHR impact on the personal position of member of the Armed Forces

8. The responsibility of Service personnel under the criminal law is unaffected by any of the human rights court cases of recent years, or the enactment of the HRA. In a memorandum submitted to the Joint Committee on Human Rights in October 2007 [8] , the MOD said this:

"14. The Committee will recall the evidence of Lord Goldsmith [in June 2007] :

"…. it is also very important to recognise that the obligations which nobody has been in any doubt apply (namely, the obligations under the Geneva Convention, the obligations under the Convention Against Torture) all applied, so did domestic criminal law. That is why any soldier who mistreated, treated inhumanely, let alone tortured, a detainee in the course of a UK detention would have been liable to Court Martial, and, indeed, that is precisely what happened. I do not believe, so far as the substantive standards of treatment are concerned, there is any difference between what the Geneva Convention, the Convention Against Torture require in relation to detention and the ECHR. I do not think there is any difference at all, so I do not think it matters, and I am not aware that anyone ever thought there was something that was permitted under the Geneva Conventions that is not permitted under the ECHR".

Lord Goldsmith therefore raised a relevant question: whether there is any mistreatment of a detainee permissible under the Geneva Conventions in a international armed conflict, and under the criminal law that applies to UK forces throughout the world at all times, that is nevertheless prohibited by the European Convention on Human Rights. The MOD can identify none.

15.  The Committee may also find it useful to take account of the comments of Lord Bingham, in his dissenting judgment in the House of Lords in the Al Skeini case. Holding that the Human Rights Act 1998 did not apply extraterritorially, Lord Bingham observed that:

"This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any cri mes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and (article 3) to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations are placed on contracting states by protocol 1 to Geneva IV An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v v Ministry of Defence [2004] EWHC 786 (QB)". "

9. Accordingly, the question of whether the ECHR applies in a situation of armed conflict, and the relationship between International Human Rights Law (IHRL) and International Humanitarian Law (IHL), has little impact on the personal liability under English law of Armed Forces personnel who are engaged on operations. The standards of conduct mandated by the criminal law are not affected by the application or non-application of the ECHR. If they comply with the criminal and disciplinary law that applies to them at all times, Service personnel can have high confidence in the legal security of their personal positions. They cannot be held personally liable in proceedings based on the HRA. In so far as the HRA created new legal remedies, they concern the liability of the UK Government (not individuals) for alleged breaches by UK public authorities of the UK's international law obligations under the ECHR. This important point is not always made clear. No claim based on the HRA has ever been brought against any individual member of HM Forces because it is not legally possible to do so.

10. As the Committee will be well aware, the two key cases against the MOD heard by the ECtHR and concerning operational activity have been Al Skeini [9] and Al Jeddah [10] . The Al Skeini proceedings were brought against the MOD. They were not about the nature and extent of the substantive obligations under Article 2 (the right to life) and Article 3 (torture and inhuman or degrading treatment). The case was always and only about the UK Government's procedural obligation to investigate to ECHR standards six incidents in which Iraqis died at the hands of agents of the UK state (ie the British Army). Any potential criminal liability of individual soldiers in relation to the six incidents could only arise under the ordinary criminal law that applies to all Service personal, and not under the Human Rights Act 1998, or the ECHR. Indeed, the death of Baha Mousa was the subject of and criminal investigation and prosecution while the HRA/ECHR proceedings were in train before the English civil courts.

11. Al Jedda was also a case brought against the MOD, and not against any individuals. It concerned detention without trial for security reasons, in alleged breach of Article 5 of the ECHR. No member of the Army involved in the process of detention was ever at any material risk of personal liability for what the ECtHR eventually decided was a breach of Article 5 of the ECHR, (thereby overturning the views of the Administrative Court, the Court of Appeal, and the House of Lords that there was no such breach).

12. The Committee's first subject area concerns the 'protections and obligations applying to UK Armed Forces personnel'. As I have suggested, the principal protections and obligations for individuals reside, as they always have, in their compliance with the domestic law that applies to them under the Armed Forces Act 2006. Any liability under civil law (in claims brought under common law or the HRA) for the actions of members of the Armed Forces is likely to rest with the Government. In circumstances in which HMG will not only have vicarious liability for the wrongful actions of service personnel in performing their duties, but will also possess the resources to satisfy any award of damages, the likelihood of common law civil litigation being commenced directly against individual members of the armed forces is, as the last 15 years demonstrates, very remote.

Does it make any difference whether Armed Forces personnel are engaged in UK-only or in coalition operations?

13. This question implies that the position of Service personnel abroad may be different, depending on whether they are involved in UK-only operations, or in coalition operations. I do not think this makes any difference to the position of individuals. Sometimes the question does arise about the position of UK personnel who are embedded in the command chain of another state's armed forces, or who are in a command position in another state's forces. They remain subject to English criminal law and UK military justice under the Armed Forces Act 2006. And the UK's state responsibility under international law for the actions of members of its Armed Forces in such circumstances remains.

14. Nothing in my comments should be taken as suggesting that the MOD and the Services can or should be cavalier about incurring civil liability. Far from it. The MOD and military commanders should of course do all they can to minimise the risk of civil liability, and strive to ensure that the actions and conduct of the Armed Forces are in compliance with all applicable national and international law, including the UK’s obligations under the ECHR. I know very well that this will always be their objective, and that the orders which Armed Forces personnel are asked to implement and obey will be framed with this in view. I merely seek to emphasise that the individual position of serving and former members of the Armed Forces in terms of the risk of individual criminal or civil liability for their actions on operations is as it always was, whatever the perception may be that things have somehow been changing for the worse.

The effects of the developing concepts and doctrines of 'lawfare' and universal jurisdiction


15. I personally doubt that the 'lawfare' tag serves any particularly useful purpose. It tends unhelpfully to impugn the motives of those who act in legal proceedings that challenge the Government on military issues. It was probably inevitable that the enactment of the HRA would bring in its wake cases that would seek to extend the boundaries of extraterritorial ECHR application. But the first case on extraterritoriality arising from recent conflicts (Banković) was brought in 1999 against the UK and the 11 other member States of the Council of Europe (COE States) who were then members of NATO, and was heard directly before the ECtHR. Though the Applicants' principal legal representation was British, the case had nothing to do with the HRA (which did not come into force anyway until October 2000). A number of other important ECHR cases for UK Armed Forces, concerned with discrimination and aspects of the military justice system, all came before recent conflicts and the enactment of the HRA. I think it was also inevitable that the common law boundaries of combat immunity in civil claims would have been tested in the wake of UK involvement in military operations over the last 15 years.

Universal Jurisdiction

16. 'Universal jurisdiction' is the international legal principle whereby a state claims the right to prosecute crimes committed outside its boundaries, regardless of the nationality of the accused, or their state of residence. In international law there need not be any connection with the prosecuting state in order to prosecute certain serious crimes which are considered to be crimes against all of humanity. Under some international conventions ratifying states take on the international law obligation to assume universal jurisdiction under their domestic criminal law.

17. In the UK, there is true universal jurisdiction over the offences of grave breaches of the Geneva Conventions and Additional Protocols [11] , of torture [12] , and of hostage taking [13] . The International Criminal Court (ICC) Act 2001, on the other hand, does extend to offences committed outside the UK, but only by British residents (as defined in the Act) and members of UK Armed Forces.

18. It is therefore difficult to see what practical bearing, if any, the principle of universal jurisdiction has on the position of UK Armed Forces personnel. As already indicated, ordinary English criminal law (which includes all the offences for which UK courts may exercise universal jurisdiction) applies in any event to UK Forces wherever they are operating. Other countries will have taken universal jurisdiction over the same offences, but it is fanciful to suppose that any are likely to wish to exercise that jurisdiction over UK Armed Forces personnel as long as constitutional government and the rule of law prevails in the UK.

International criminal jurisdiction distinguished

19. It is important not to confuse universal jurisdiction with international criminal jurisdiction. UK Armed Forces have participated in two major international armed conflicts where an international court or tribunal had potential international criminal jurisdiction over their actions – Kosovo in 1999 (the International Criminal Tribunal for the Former Yugoslavia), and Iraq in 2003 (the ICC [14] ). In neither case has there been any serious question of international prosecution of Service personnel. ICC jurisdiction in respect of the UK was given effect by the ICC Act 2001. Given the ICC Statute's bedrock principle of complementarity - that the ICC can only ever exercise criminal jurisdiction to put a person on criminal trial where a state is unwilling or unable itself properly to investigate and prosecute - the then Foreign Secretary Robin Cook felt able to reassure the House of Commons that he was confident that no British soldier would ever stand trial in the Hague [15] . Furthermore, every NATO state at the time except the US was similarly ratifying the ICC Statute. Save in one respect (the crime against humanity of apartheid [16] ), all of the offences set out in the ICC Statute were considered, one way or another, already to be offences under the criminal law that applies to UK Service personnel. Despite these reassurances, many senior commanders remained fearful that the ICC Act would unfairly expose UK Armed Forces personnel to new vulnerabilities. Those fears to have yet to be realised.

Impact of the judicial development of duty of care concepts and of domestic UK law and claims of negligence, on UK operational decision making processes and arrangements for recording decisions and events by operational commanders

20. I have no direct knowledge of the current impact on operational decision making, and on arrangements for recording decisions and events, but I note what the MOD says on the latter issue at paragraph 27 of its written evidence. What is of obvious concern is the powerful dissenting Supreme Court judgment of Lord Mance (supported by Lord Wilson) in the conjoined cases of Smith, Ellis, and Allbut and others. His comment that the majority decision "will make extensive litigation almost inevitable after as well as quite possibly during and even before, and active service operations by the British Army" would, I suspect, have been characterised as alarmist had it been made by a Minister or a senior military Commander. That it came from a Justice of the Supreme Court means that it less easily discounted, and it is right that consideration be given to steps that might ameliorate the operational consequences of the "judicialisation of war" that Lord Mance fears is not merely possible, but "likely". Time will tell if the Supreme Court majority’s strong direction to courts concerning "the very wide measure of discretion which must be accorded to those who were responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives, and also to the way issues as to procurement too should be approached" is heeded, both in those particular cases, and any that follow, as they surely will. However, the point at which that very wide measure of discretion will come to be accorded is likely only to be reached at the end of a litigation process that is lengthy, expensive, and time consuming, and of a trial in the course of which the operational judgments of individuals taken in testing circumstances, and in good faith, will have been forensically deconstructed, and very possibly publicly criticized. Should an unsuccessful Claimant be legally aided, there will be no realistic possibility of recovering the financial costs to the Defence budget of defending such claims.


21. I shall conclude with some comments on three possible courses of action to address concerns that have surfaced in connection with the Committee’s current investigation.

HRA claims against the UK Government in relation to action taken outside the UK

22. In his judgment in the Al Skeini case in the House of Lords, Lord Bingham agreed with the MOD’s submission that the Human Rights Act 1998 did not apply to acts done outside the territory of the UK. It inevitably followed, he concluded, that the various claims under the HRA could proceed no further. The majority of the Panel in the House of Lords did not agree with Lord Bingham on the proper construction of the HRA, of course. At paragraph 12 of his judgment Lord Bingham said this:

"The UK was not in breach of any obligation binding in international law when it omitted, from 1953 to 1998, to give the Convention any direct effect in domestic law. In 1997-1998 it had a policy choice, whether to give effect to the Convention in domestic law at all, and if so to what extent. A decision to give no directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK, leaving such persons to pursue any such claim against the UK in Strasbourg, would have involved no breach of any obligation binding on the UK in international law."

23. Lord Bingham also made this observation (at paragraph 24) about the intention of Parliament concerning the HRA’s extraterritorial extent:

 "In the course of its careful consideration of this question [ie whether the HRA applied outside the UK] the Divisional Court observed (in paragraph 304 of its judgment): "It is intuitively difficult to think that Parliament intended to legislate for foreign lands". In similar vein, Brooke LJ in the Court of Appeal said (para 3): "It may seem surprising that an Act of the UK Parliament and a European Convention on Human Rights can arguably be said to confer rights upon citizens of Iraq which are enforceable against a UK governmental authority in the courts of England and Wales". I do not think this sense of surprise, which I share, is irrelevant to the court's task of interpretation. It cannot of course be supposed that in 1997-1998 Parliament foresaw the prospect of British forces being engaged in peacekeeping duties in Iraq. But there can be relatively few, if any, years between 1953 and 1997 in which British forces were not engaged in hostilities or peacekeeping activities in some part of the world, and it must have been appreciated that such involvement would recur. This makes it the more unlikely, in my opinion, that Parliament could, without any express provision to that effect, have intended to rebut the presumption of territorial application so as to authorise the bringing of claims, under the Act, based on the conduct of British forces outside the UK and outside any other contracting state. [17] "

24. If Lord Bingham’s view is correct - that there is no ECHR obligation requiring the UK to give a "directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK" - it follows that it would be lawfully possible to amend the HRA now so as unequivocally to exclude such claims. It is hard to conceive how the removal of a right that there was no ECHR obligation to provide in the first place could itself amount to a breach of UK ECHR obligations. Any such restriction of the right to bring HRA proceedings in the UK could not affect the UK’s ECHR obligations, to the extent that they arise extraterritorially. But it would mean that any claims of a breach outside the UK would have to proceed before the court in Strasbourg just as they always did before 2000 (when the HRA came into force), with all that that implies for the applicable legal processes, and for the remedies that would be available.

The Armed Forces and the Legislative Process

25. One of the proposals (at Option 6) in The Fog of War was that "The Attorney General should draft an ‘operational effectiveness impact statement’ for the Ministry of Defence when new legislation is being drafted stating what, if any, are the implications for the armed forces". The MOD will be the responsible department for legislation governing the Armed Forces, and is highly likely to be involved in the legislation for which other departments have responsibility that has any material implications for Defence. While I am in sympathy with the objective of the Policy Exchange proposal, I am not so sure about the role proposed for an Attorney General. Supported by a comparatively small team of lawyers drawn from across Government, I doubt that an Attorney General is that well placed to provide an accurate assessment of the operational implications of any particular legislative proposal for the wide potential range of Armed Forces activity in both war and peace.

26. Nevertheless, if greater assurance is thought necessary, there may be scope for achieving a more effective focus on the interests of the Armed Forces, and on the implications of legislative change for them, by making changes to the formal procedures that regulate the passage of legislation through Parliament, some of which are statutory [18] , and some of which are administrative. As the Cabinet Office’s Guide to Making Legislation (most recent edition July 2013) shows, there are a number of formal requirements for consultation and consents, and for impact assessments of various kinds, before a Bill is approved for introduction into Parliament. If there is a need for a more direct or automatic consideration of the implication of all legislation for the Armed Forces, this would seem to be a more effective route than the role suggested for the Attorney General. Any changes to the procedures for primary and secondary legislation ought also to be reflected in the arrangements for developing and implementing EU law that affects the Armed Forces.

The Al Jedda ECtHR decision, and the problem of detention in conflict

27. One of the most difficult aspects of recent ECtHR jurisprudence has been the view taken on security detention in the Al Jedda case – in effect, that a UN Security Council Resolution that authorizes detention for imperative reasons of security is insufficient to override, in accordance with Article 103 of the UN Charter, Article 5 ECHR obligations such as would arise in relation to a detention within the UK. Only an explicit Security Council requirement or obligation to detain could do that, or a derogation under Article 15 of the ECHR.

28. The potential implications of this approach go beyond UN sanctioned operations, as was powerfully argued by the ICRC lawyer Jelena Pejic in an article in 2011 in the International Red Cross Review [19] , and raise doubts about the ordinary and previously generally accepted discretionary capacity of all States (including COE States) lawfully to detain without trial in armed conflict provided the requirements of International Humanitarian Law (IHL) were met.

29. It remains to be seen how responsive the UN Security Council will be to any insistence that relevant Resolutions should in future include wording intended to overcome the difficulties for COE States that have been created for them by this ECtHR decision. It may well be that the Security Council will recognise the need to be helpful, if it is clear that COE States may otherwise be rather less willing to commit their Armed Forces in support of UN mandated operations.

30. The derogation route seems particularly problematic, and to characterise it as a straightforward solution is in my view significantly to underplay the legal, practical and political difficulties that such a course would be likely to entail:

(1) the ECtHR had the opportunity in Al Jedda to offer some sort of indication whether an Article 15 derogation would have been available to the UK government. It chose merely to state the basic position under the ECHR, namely that no deprivation of liberty under article 5 of the ECHR is permissible except as is expressly provided for within the article itself, or as is provided for in a lawful derogation under Article 15;

(2) the wording of Article15 of the ECHR is sufficiently unclear as to raise significant concerns about the capacity of COE States to derogate in relation to overseas conflicts, and even if applicable in principle, whether derogation is necessarily available in relation to the sort of overseas operations in which the UK and other COE States have been involved in recent years. Lord Bingham’s somewhat restrictive view in the House of Lords in Al Jedda about the legal capacity to derogate in the context of Iraq was one that received some support from the Supreme Court majority in Smith [20] . Even if the remarks in both cases were essentially obiter, they nevertheless must carry some authority;

(3) any Government contemplating modification of its ECHR obligations by a derogation under Article 15 would know that a judicial review of the decision to derogate, as well as of the proportionality and necessity of the proposed derogation, would be a virtual certainty. The Government’s legal advice would be bound to take into account the limited domestic legal authority on the subject such as I refer to above, particularly since the challenge to the legal challenge to any derogation would inevitably be heard first in the UK courts. And such authority as there is from the ECtHR and the former European Commission on Human Rights is not wholly encouraging to those who argue that the wording of Article 15 should be purposively stretched beyond its natural meaning. Ministers would be reluctant, I suspect, to fly academic legal kites on derogation;

(4) any derogation intended to have effect in UK law (for example in relation to claims brought under the HRA) would also need to be subject to the designated derogation order procedures under sections 1(2) and 14 of the HRA, and to the Parliamentary processes for approving a designated derogation. This requirement provides a further potential avenue of legal challenge;

(5) in circumstances where the UK is contemplating involvement in military operations alongside other COE States (as has been the case at some point in all of the major conflict zones involving the UK in the last 15 years) the political and legal difficulties of a decision to derogate by some but not all of the COE states concerned seems both obvious and problematical. Other COE States may have their own cogent domestic political and constitutional reasons for downplaying the seriousness of the situation into which they wish insert their military, and may even be discouraged from providing assistance if there is to be any question that the situation has reached the level in which it might be argued that derogation is legally justifiable. At the same time, the problem for any COE State that derogates while others, facing the very same situation, decline to do so, is fairly evident;

(6) it is unclear how much could lawfully be delivered by an Article 15 derogation that would greatly assist. The derogation power is exercisable only "to the extent strictly required by the exigency of the situation". Some commentators whose focus is the detention question argue, for example, that an appropriate derogation from Article 5 in the context of Al Jedda would have been to provide for reviewable preventative detention by a judge [21] . Even if that view is right, some very difficult real-world questions would have needed to be addressed in relation to UK Armed Forces’ security detention of individuals in Iraq after the ending of the occupation in mid-2004. These would, for example, have included where the judge should come from, what his or her legal authority for determining detention issues within Iraq would be, the security implications of disclosing the intelligence case informing the assessment that an individual represented "an imperative threat to security", the attitude of the Iraqi Government to any proposal that, say, a British judge should come to Iraq to determine the security detention of Iraqis held in their own country, and the fact that the much greater number of detainees held by the US, on the basis of the same UN Security Council authorisation that underpinned UK detention, would be subject to materially different review procedures;

(7) Article 15.1 of the ECHR provides that any measure derogating from the ECHR may not be inconsistent with the derogating state’s other obligat ions under international law. For that reason , any Article 15 ECHR derogation would need to be accompanied by a derogation from any corresponding provisions of the International Covenant on Civil and Political Rights (ICCPR), assuming that the Government was of the view that the extra-territorial application of the ECHR and the ICCPR was the same. Some states, such as the US, do not necessarily accept the extraterritorial application of the ICCPR, a further complication in relation to any potential ICCPR derogation in a theatre of operations where the UK and other COE States are in coalition with the US. But what is perhaps rather more significant is the obvious legal and political tension if, in relation to UN authorised operations within another ICCPR state, the UK were to derogate from the ECHR and ICCPR in circumstances where that other state declines to derogate from the ICCPR. The presence of UK Armed Forces in Iraq after July 2004, and in Afghanistan after January 2002 as a part of ISAF, was authorised by the UN Security Council. Iraq and Afghanistan were both bound by the ICCPR, but at no stage has either ever derogated from the ICCPR.

31. So I doubt that ECHR derogation is a straightforward solution. My instinct is that for the time being at least, derogation should be avoided in the hope that, as Jelena Pejic suggests, some opportunity may arise in the future to press the IHL lex specialis argument [22] more forcefully before the ECtHR. And in any event, it could be unwise to embark on any unprecedented Article 15 ECHR derogation for UK military operations overseas without close consultation and agreement with those key European allies who face or may face the same difficult decisions.

January 2014

[1] See –( )


[2] This is not to deny the importance of having good legal advice available to military commanders – as was expressly recognized by Article 82 of the First Protocol Additional to the Geneva Conventions of 12 August 1949: The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.


[3] Section 42 of the Armed Forces Act 2006 ( )


[4] Such offences are set out in sections 1 to 38 of the Armed Forces Act 2006 ( )


[5] Section 12 of the Armed Forces Act 2006 – ( )




[7] All of the offences listed in the International Criminal Court Statute became specific offences under UK criminal law through the International Criminal Court Act 2001. There was no significant change in the legal position of Armed Forces personnel engaged in conflict.








[11] Under the Geneva Conventions Act 1957 (


[12] Section 134 of the Criminal Justice Act 1988


[13] Section 1 of the Taking of Hostages Act 1982


[14] The ICC Statute entered into force on 1 July 2002. The ICC does not have retrospective jurisdiction.


[15] “I am aware of the concerns that some service personnel may end up before the International Criminal Court. Those concerns are misplaced….. Members on both sides of the House should have a robust confidence that the British legal system has adequate remedies for crimes against humanity and can satisfactorily demonstrate to the International Criminal Court that any such allegations have been properly investigated and, where appropriate, prosecuted. In short, British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities.”

[15] (House of Commons Hansard 200l, vol. 366, col. 222)


[16] Article 7(1)(j) of the ICC Statute


[17] In this regard, paragraph 15 of the evidence to the Committee dated 20 November 2013 from the Rt Hon Jack Straw MP has some relevance: “ The short point I make, which I suggest should be one focus of your inquiry, is that to the very best of my recollection it was never anticipated that the Human Rights Act would operate in such a way as directly to affect the activities of UK forces in theatre abroad.”

[18] For example, the statement pursuant to section 19 of the HRA that a Minister in charge of a Bill has to make as to whether or not its provisions are compatible with Convention rights.


[19] The European Court of Human Rights’ Al Jedda Judgment: the oversight of international humanitarian law. (30-09-2011 International Review of the Red Cross, No 883, by Jelena Pejic )



[20] See paragraphs 59 and 60 of Lord Hope’s judgment.


[21] Under Articles 43 and 78 of the 4 th Geneva Convention, with which the English courts decided in Al Jedda the MOD was complying, there must be periodic review, but though that review may by a court, it can by an administrative board. The UK’s review was administrative.


[22] The principle of lex specialis provides that in the event of conflict, the more specific rule applicable in a particular situation should be applied—which would usually be the IHL rule in armed conflict situations.

Prepared 26th February 2014