UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from Professor CHB Garraway CBE

1. I am Professor Garraway, formerly Stockton Professor of International Law at the United States Naval War College and currently a Fellow of the Human Rights Centre at the University of Essex. Prior to my academic appointments, I was for thirty years, an officer in Army Legal Services and ended my career dealing with international and operational law. I worked with UK delegations to international treaty negotiations as well as having operational experience in the 1990/91 Gulf War. I was part of the Coalition Provisional Authority in Baghdad in 2003 and visited Afghanistan twice in 2006 to advise on security matters.

2. Whilst I note the subject matter that the Committee wishes to examine, there is, in my view, an underlying problem contained in the title, namely identifying the legal framework in the first place. The problem is the growing overlap between international humanitarian law, otherwise known as the law of armed conflict or the laws of war, and human rights law. A series of judgements by the International Court of Justice and, most notably, by the European Court of Human Rights, have highlighted that the relationship between these two great bodies of international law is not straightforward.

3. As ‘war’ and ‘peace’ increasingly morph into a spectrum of violence where, like a rainbow, it is difficult to identify the boundaries between the various levels of violence, there has been a battle for legal supremacy between those from the international humanitarian law end who wish to see the definition of ‘armed conflict’ extended down to as low a level of violence as possible so as to extend the protections given by ‘Geneva law’, dealing with the protection of victims of war, as widely as possible, and those from the human rights perspective who insist that human rights is the foundational law, the lex generalis, and that international humanitarian law, as the lex specialis, must be secondary. With each of these bodies of law claiming priority, what happens when they disagree?

4. Furthermore, lost in all of this is the branch of international humanitarian law known as ‘Hague law’ which deals the conduct of hostilities. It is under this branch of law that we find the balance between military necessity and humanity, leading to the acknowledgement that in time of war lives, even innocent ones, will be lost and things will get broken. This runs counter to the underlying philosophy of human rights law and even ‘Geneva law’ where it is the rights of the victim that are paramount and thus any breach of those rights has to be justified.

5. A simple example is in targeting. Under ‘Hague law’, a ‘combatant’ is targetable at all times because of his status as such. He does not need to be posing an immediate threat nor is there any requirement to employ graduated levels of force. He can immediately be engaged with lethal force. This would normally amount to murder under domestic law but the soldier is subject to ‘combatant immunity’ which means that providing his actions are within the law of armed conflict, he is protected from domestic prosecution. Under human rights law, the right to life is paramount and only such force is permissible as is absolutely necessary to meet the threat posed. Thus the use of lethal force where life is not in immediate danger and there is no other way of removing that danger would be a breach of the right to life. There is no equivalent to ‘combatant immunity’ in human rights law though the International Court of Justice has stated that:

"In principle, the right not arbitrarily to be deprived of one's life applies also in time of armed conflict. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." [1]

6. However, the term "arbitrary deprivation of life" refers to the wording of Article 6 of the International Covenant on Civil and Political Rights. The European Convention on Human Rights is somewhat differently worded. Article 2 reads:

"1.Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection."

7. This would not in principle include killings during an international armed conflict though Article 15, when dealing with derogation, provides that there can be "[n]o derogation from Article 2, except in respect of deaths resulting from lawful acts of war…" It would appear therefore that killings within the law of armed conflict would be permissible provided that there has been a derogation entered. So far as I am aware, the United Kingdom has never entered a derogation to Article 2 of the European Convention in any armed conflict to which it has been party. I am not aware of any other European State derogating in this way either. It is still unclear therefore whether the European Court of Human Rights would accept the lawfulness of a killing carried out within the law of armed conflict but where the State concerned had not made a derogation. It is to be hoped that they would take a similar line to the International Court of Justice but in the light of Article 15, it is not clear that they would do so.

8. Furthermore, it is becoming increasingly unclear when the law of armed conflict would overrule human rights law in such circumstances. The law of armed conflict was originally designed to cover international armed conflicts, wars between States. Non-international armed conflicts, civil wars, were outside its ambit until 1949 when the four Geneva Conventions of that year introduced Article 3 common to all four Conventions which applied basic protections to those taking no active part in hostilities or rendered hors de combat, in non-international armed conflicts. This protection was extended in 1977 by Additional Protocol II to the Geneva Conventions but there was little or no treaty law governing the conduct of hostilities in such conflicts. There was no ‘combatant status’ and hence no ‘combatant immunity’ and it was not clear to what extent the ‘Hague law’ on the conduct of hostilities and in particular the looser rules on targeting would apply. For example, in Northern Ireland, although it was never accepted by the United Kingdom that the level of violence constituted an ‘armed conflict’, the campaign was conducted throughout under domestic (and human rights) law with no suggestion that active members of the IRA were subject to lethal force at all times, simply because of their status. It is only since the conflicts in the Former Yugoslavia and the subsequent decisions of the International Tribunal for the Former Yugoslavia that the ‘Hague law’ on the conduct of hostilities has been considered to apply, as a matter of customary law, to non-international armed conflicts. [2] This trend was subsequently supported by the International Committee of the Red Cross in their seminal Study into Customary International Humanitarian Law. [3] The difficulty is that, as already stated, ‘Hague law’ introduces the balance between military necessity and humanity. If those provisions based on humanity, such as the prohibition of attacks on civilians and civilian objects, are extended, what of those based on military necessity, such as status targeting? This brings into play the wider relationship between the law of armed conflict and human rights law.

9. Again, it is accepted that human rights law applies at all times, including during armed conflict, but what is not clear is how human rights law is affected by the contemporaneous applicability of international humanitarian law. The International Court of Justice has opined:

"As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law."

10. What is unclear is where the dividing lines between these situations fall. The greatest areas of controversy are non-international armed conflicts and situations of occupation, the very situations in which UK armed forces have principally found themselves operating since the fall of the Saddam regime in 2003. Increasingly, it is being argued that the relevant law is ‘situation specific’. Thus, within a theatre of operations, different rules may apply to different situations. An example is provided by the use of checkpoints. If a soldier is manning a checkpoint, is it part of the conduct of hostilities and thus governed by the rules of targeting under the law of armed conflict or is it a law enforcement exercise governed by human rights law? An example can be found in the debates over the death of Sergeant Roberts in 2003 during the advance to Basra. An Iraqi was killed as well as Sergeant Roberts and a number of soldiers faced investigation on possible charges of murder. [4] It was unclear then – and I would submit remains unclear – whether the foundational legal regime under which the soldiers were operating at that checkpoint was the law of armed conflict or human rights law. That incident took place during an international armed conflict. The situation may be even less clear at a checkpoint in Helmand or Kabul.

11. It is often said that Rules of Engagement are designed to provide clear guidance for soldiers in these circumstances. However, Rules of Engagement are only partly governed by the law. They also take into account military and political factors. They should not be more permissive than the law allows but may be – and frequently are – more restrictive. Thus, if a soldier breaches his Rules of Engagement, he may still be acting within the wider law even though he could be charged with disobeying a lawful order. The difficulty comes when the underlying law is unclear. Obedience to Rules of Engagement do not provide a defence to a soldier should the Rules prove to be incompatible with the law. The Clegg case in Northern Ireland confirmed that. [5]

12. I therefore would submit that the underlying problem which affects all the issues that the Committee wishes to examine is the uncertainty over the boundaries between human rights law and the law of armed conflict and the inevitable overlap between the two legal regimes. I will now deal briefly with how this affects each issue.

13. Legal protections and obligations: It is impossible to analyse accurately the protections and obligations without clarity as to the underlying legal framework.

14. Lawfare and universal jurisdiction: When the law is unclear, it is open to interpretation and argument. Those who wish to restrict the operations of the armed forces are provided with plenty of ammunition with which to do so. It is generally accepted that it is impossible to conduct high intensity operations, whatever their nature, under human rights restrictions. There is a difference between the conduct of law enforcement operations and the conduct of high intensity military operations which is reflected in the more liberal provisions of the law of armed conflict, particularly in relation to targeting and detention. Those who argue that the law of armed conflict is subservient to human rights in all circumstances are effectively declaring that it is impossible for the UK armed forces to conduct high intensity operations.

15. The fear of ‘universal jurisdiction’ usually centres around the International Criminal Court (ICC). I was part of the UK delegation that took part in the development and drafting of the Rome Statute and am confident that the provisions inserted in the Statute relating to complimentarity effectively preclude any attempt by the ICC to claim jurisdiction over UK Service personnel.

16. Duty of care: The Ministry of Defence again finds itself caught between two opposing principles. Under the law of armed conflict, there is a requirement that, in the conduct of military operations, ‘constant care shall be taken to spare the civilian population, civilians and civilian objects’. [6] This will on occasion inevitably involve military personnel accepting greater risk. However, the Ministry is also under a duty of care towards its own Service personnel under human rights law. Whilst under human rights law that duty may also extend to civilians within the jurisdiction of the United Kingdom (which has been widely interpreted by the European Court of Human Rights), this will not normally extend to civilians in areas of hostilities (outside the United Kingdom and situations of occupation). To give an example, if the Taliban adopts new tactics of such a manner that it increases the danger to British forces, is the UK obliged to withdraw those forces until the requisite equipment to protect against the increased threat can be procured? If so, what effect does that have on the duty to protect the Afghan population? Again there is a balance between force protection and mission accomplishment which may not be reflected in current legal trends. Commanders – and Ministers – must be given a ‘margin of appreciation’ within which to conduct their operations. Minute ex post facto scrutiny of operational decisions, often taken in difficult circumstances and without full information, does not assist in encouraging decision taking. However, I have more confidence than many in the higher echelons of the British judiciary and therefore am of the view that the guidance given by the Supreme Court in Smith  [7] is likely to be sensibly interpreted in the British courts. However, judges are only as good as the material they are given and much will depend on how competently Government lawyers plead their cases. Criticisms have been made that few lawyers arguing cases have military experience and therefore there is a degree of ignorance which may not help the decision making process.

17. To conclude, until the underlying problem is resolved, there will continue to be serious legal difficulties facing both the Ministry of Defence and the individual service member. No man can serve two masters and the danger is that law will become increasingly irrelevant to operations on the ground. This will place politicians in an increasingly difficult position as they seek to justify the use of British forces in operational situations.

15 October 2013

[1] ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J. Reports 1996, p. 240.

[2] See ICTY, Prosecutor v. Tadic, Decision on Jurisdiction, Appeals Chamber, Case No. T-94-1-A, 15 July 1999, 105 International Law Reports 453.

[3] Customary International Humanitarian Law (2 volumes: Vol. I, Rules; Vol. II, Practice (2 Parts)) (Jean-Marie Henckaerts & Louise Doswald-Beck eds.), CUP, 2005.

[4] See statement by Lord Goldsmith, HL Deb, 27 April 2006, c262.

[5] R v Clegg, HL, 1995 1 All ER 334.

[6] Art. 57(1), Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977.

[7] Smith & Ors v Ministry of Defence, Supreme Court, [2013] UKSC 41.

Prepared 20th November 2013