Who guards the guardians? MoD support for former and serving personnel Contents

6European Convention on Human Rights and the International Criminal Court

European Convention on Human Rights

107.Earlier in our report we highlighted the fact that IHAT—or a similar investigatory body—was a requirement of a 2011 ECHR ruling. On 4 October 2016, the Prime Minister and Secretary of State for Defence, in a joint statement laid out plans to derogate from the European Convention on Human Rights, using the process set out in Article 15 of the Convention.149 The Secretary of State said that such a derogation would “help to protect our troops from vexatious claims, ensuring they can confidently take difficult decisions on the battlefield,”150 and on 10 October 2016, he set out the Government’s intentions in a Written Ministerial Statement:

Before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question. Any derogation would need to be justified and could only be made from certain Articles of the Convention.151

108.According to Air Chief Marshal Sir Stuart Peach, Chief of the Defence Staff, any derogation would not undermine the efficacy of the UK’s armed forces, and they would continue to be “held to the very highest standards” and would remain “subject to the Law of Armed Conflict—which includes the Geneva Conventions—and to UK service law, which includes the criminal law of England & Wales”.152

How would a derogation work?

109.In a letter to the Joint Committee on Human Rights, the Secretary of State said that a derogation might apply to “any significant military operation capable of falling within the concepts” used in Article 15 of the European Convention on Human Rights which referred to a “war or other public emergency threatening the life of the nation”.153 However, there is no definition of war for the purposes of Article 15 and so we explored with the Attorney General, Mr Jeremy Wright QC MP, how the absence of a definition would be managed. He explained that Government had “started to think” about how it would work in practice but cautioned that:

A detailed rubric for how it might work, [would be] difficult to do when you are not familiar with the exact circumstances in which that derogation decision might be made.154

110.In his written submission, Professor Ekins welcomed the Government’s announcement as “a commendable and overdue step” which could help reinstate international humanitarian law as the relevant controlling body of law”.155 However, he cautioned that the exercise of Article 15 was:

Vulnerable to legal challenge, in the domestic courts and before the European Court of Human Rights, and in any case will not completely end the application of European human rights law.156

During our oral evidence on a potential derogation, the following issues also came to light:

111.Professor Ekins said that the Government should also amend the Human Rights act to restrict its application to within the United Kingdom or to limit it by territorial jurisdiction. He argued that either option would limit the Government’s requirement “to follow European human rights law in relation to future military action”.158

112.Derogating from the ECHR would have no effect on any criminal proceedings under service law or the Geneva conventions against individual soldiers. It would, however, shield the government from legal cases brought against it in the civil courts, which would prevent the need to pay out compensation. The MoD told us that of the £21.8 million the MoD has paid out in compensation claims to Iraqi civilians the “vast majority”159 of settlements related to cases of ‘unlawful detention’ which would have been avoided had a derogation been in place for the conflict in Iraq.160

113.We welcome the Government’s intention to derogate from the European Convention on Human Rights under Article 15 of the Convention in the event of future conflicts. For clarity, we recommend that the Secretary of State—in conjunction with the Attorney General and the Chief of the Defence Staff—set out the conditions under which the United Kingdom could and would derogate from the European Convention on Human Rights. The MoD must set out the action that has been taken by other participants in the Iraq war who are subject to the ECHR to derogate from any part of the Convention.

114.We further recommend that the Government sets out what amendments to the Human Rights Act would be necessary to ensure that any such derogation is both achievable and successful in protecting UK troops in future conflict from unnecessary widespread litigation.

The International Criminal Court

115.The International Criminal Court (ICC) was established by the Rome Statute in 1998 to investigate the most serious crimes including war crimes, crimes against humanity, genocide and crimes of aggression. The ICC operates on the principle of complementarity which it described as:

Specifically designed to prevent governments from invoking […] sovereignty to protect the worst offenders, whilst simultaneously guarding national jurisdiction against ‘excessive’ encroachments from an international body.161

Under that principle, the ICC would not seek to prosecute individuals if it is satisfied member countries are taking sufficient action to prosecute offenders themselves.162

116.The ICC first received complaints about UK military action in Iraq in 2006. Although its subsequent inquiry found insufficient evidence to proceed further, in 2014 it reopened its investigations into alleged crimes in Iraq following submissions by Public Interest Lawyers. Since then, the ICC has been monitoring the work of IHAT. In November 2015, the ICC reported that it was “engaged in processing and analysing the vast amount of material” provided by PIL and was “conducting a thorough evaluation of the reliability of the sources and the credibility of the information received”.163 In coming to any conclusions the ICC said that it would “take into account the findings of the relevant investigations conducted by the UK authorities as well as the outcomes of judicial review proceedings in the High Court of Justice of England and Wales”.164

117.In oral evidence, the Secretary of State for Defence argued that the ICC’s monitoring of IHAT required the continuation of the IHAT investigations:

If we were unable to demonstrate that these [criminal allegations] were being properly investigated, we could have ended up […] opening the way to the International Criminal Court. That would have got us into a far more difficult situation.165

He added that the UK was “being watched very closely by the International Criminal Court”, and he had to have “regard to that”.166

118.While Peter Ryan, expressed confidence that the IHAT investigations would uncover little evidence of serious criminal activity he insisted that IHAT must continue its work in order to avoid the prospect of potential ICC proceedings:

The Court has made this very plain: cases involving manslaughter, serious bodily injuries, sexual indignities, cruel, inhuman and degrading treatment, and large-scale violations of international humanitarian law. Personally, I do not believe that when the IHAT completes its investigations this by and large will be borne out, but we just do not know.167

119.The likelihood of the ICC intervening in respect of allegations of abuse was put to the Attorney General in oral evidence. He argued that given the huge volume of cases under consideration by IHAT, and the poor quality of evidence to support the majority of those cases, any such ICC inquiry would take “a very large amount of time” and would be “an inferior process to the one that we ran ourselves”.168 However, he did not believe that assuming the ICC would not intervene was a risk worth taking.169 Therefore, he also believed that IHAT had to continue its work.

120.We are not convinced that the International Criminal Court would commit to investigate such a large case load which is based, to a great extent on discredited evidence. While due process must be seen to be done, we recommend that the MoD presents a robust case to the ICC that the remaining cases would be disposed of more quickly and with no less rigour through service law rather than IHAT.

149 Article 15 of the European Convention on Human Rights is set out in Appendix 1.

150 Ministry of Defence Press Release 4 October 2016

151 HC WS168 [Military Operations-European Convention on Human Rights Derogation], 10 October 2016

152 Ministry of Defence Press Release 4 October 2016

153 Joint Committee on Human Rights, Correspondence

154 Q180

155 Judicial Power Project (PSJ0008)

156 Judicial Power Project (PSJ0008)

157 Qq180–185; Qq297–301 and Qq309–15

158 Judicial Power Project (PSJ0008)

159 Q516 Ministry of Defence (PSJ0009)

160 Ministry of Defence (PJS0015) and (PJS0013)

161 House of Commons Library, The International Criminal Court: Current Cases and Contemporary Debates

162 House of Commons Library, The International Criminal Court: Current Cases and Contemporary Debates

163 House of Commons Library, The International Criminal Court: Current Cases and Contemporary Debates

165 Q533

166 Q571

167 Q575

168 Q262

169 Q262

9 February 2017