Last month, British think tank Policy Exchange published a report criticizing the rise of “judicial imperialism” in the context of British military operations, titled Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat. Among the report’s chief criticisms is that the European Convention on Human Rights (ECHR) is being wrongly and expansively applied to British forces deployed on combat missions in foreign countries. Correspondingly, one of the report’s concluding recommendations is that the UK should derogate from its ECHR obligations in respect of future overseas armed conflicts. The report also calls for the strengthening and primacy of the Geneva Conventions in relation to armed conflicts.
The 50-page report seeks to explain, with much vigor and conviction, why the judges are getting it all wrong in relation to claims arising from overseas military operations. Few would disagree that recent decades have seen the growing influence of international human rights law (IHRL), including the ECHR, in the context of military operations. But even a quick read of the Policy Exchange report exposes significant shortcomings in the authors’ analysis of this subject. Whether or not one agrees with the report’s conclusions, there is much to object to in terms of its analysis and arguments.
Perhaps the most obvious point of contention is the much-repeated narrative of how the ECHR was only ever “intended to regulate stable peacetime polities” (page 26). (See also, the references to the “peacetime” human rights standards of the ECHR at pages 28 and 32.) But the authority with which this claim is put forward is clearly misguided.
The ECHR, under Article 15, allows states to derogate from some obligations in times of emergency. Beginning with, “[i]n time of war or other public emergency threatening the life of the nation …,” Article 15(1) provides the clearest indication that the application of the ECHR obligations during conflict was at least contemplated at some level. Article 15(2) further specifies that Article 2 (the right to life) can be derogated from only “in respect of deaths resulting from lawful acts of war.” The provision as a whole, thus, clearly and explicitly accommodates the possibility of war and the ECHR’s continued application during such periods. In fact, the ECHR continues to apply even when member states use the derogation mechanism: (a) some obligations (such as the prohibition on torture) are non-derogable and would continue to apply, as listed in Article 15(2); and (b) even derogable obligations would continue to apply in so far as any derogations are not necessary and proportional, as required by Article 15(1).
In my view, the overarching problem underlining the report is that it offers a one-sided, unbalanced and, at times, misleading view of the state of affairs. There are numerous instances of this throughout the report.
Let’s take the example of Serdar Mohammed v Ministry of Defence (2014). Just Security readers may recall that this is the UK High Court decision holding that the 110-day detention of a suspected Taliban commander by British forces in Afghanistan was unlawful. (For a detailed discussion of the decision, check out our mini-forum on the case, featuring contributions from a number of editors and guests.)
The report’s analysis of Mohammed does a disservice to Mr Justice Leggatt’s detailed and considered judgment. For instance, at pp.30-31, the authors highlight how in the non-international armed conflict context of Afghanistan, assessments of legality should be based on international humanitarian law (IHL), any Status of Forces Agreement concluded with the host government, and the domestic law of the host state – but not the ECHR. Ignoring for present purposes the point about the application of the ECHR, Mr Justice Leggatt does exactly that by carefully reviewing all the possible sources of legal authority.
Moreover, the report skips over many important details, perhaps unsurprisingly, as it would then make it difficult to make sweeping assertions about judicial overreach in the same way. So, for example, note this paragraph from Mr Justice Leggatt’s conclusions:
“419. The conclusion that SM’s detention after 96 hours was unlawful will not come as a surprise to the MOD. It is apparent from documents to which I have referred … that the MOD formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF. Legal advice also confirmed that there was no basis upon which UK forces could legitimately detain individuals for longer periods in the interest of interrogating them because they were believed to have information of intelligence value…”
The fact that the UK was aware of the legal shortcomings of its approach to adopting its own national policy on detention – which it failed to share with other participating UN member states or get agreement from the Afghan government – suggests that this exercise of judicial decision-making (what the authors call “judicial imperialism”) has a sound basis in international law, both IHL and IHRL.
A further example of the report’s one-sided exploration of the subject is provided in its presentation of Al-Jedda v United Kingdom (2011). Al-Jedda was arrested by U.S. soldiers, apparently on the basis of British intelligence, in Iraq in October 2004 and was held in a British-run detention center for several years. The case explored whether acts carried out by British troops subsequent to UNSC authorization could be attributed to the UN and if not, whether detention authority under the UNSC resolution prevailed over the ECHR prohibition of preventive detention under Article 5.
What was not contested in the case was the (non-) application of the Geneva Conventions to Al-Jedda’s detention. Yet, the report criticizes the decision on this ground. According to the authors, while the Strasbourg court “has been much less sensitive to the military context,” in some cases, “exemplified by Al-Jedda, the Strasbourg court has apparently ignored the Geneva Conventions altogether” (p.31).
While one may have reason to critique the judgment for its analysis of the contested issues, it seems unreasonable to take contention with this angle. Not only did the government not argue Geneva Convention IV, but all parties agreed that major combat operations and more importantly, the occupation of Iraq, had come to an end before Al-Jedda’s detention. Occupation of Iraq ended on 28 June 2004, when full authority was transferred from the Coalition Provisional Authority to the interim Iraqi government, although a multinational force remained in the country upon Iraqi request and UNSC authorizations. Al-Jedda was detained a few months later, and thus, could not possibly be detained under the law of occupation.
Baroness Hale clarifies this point in the domestic House of Lords proceedings (check out para 128). Even the critic of Al-Jedda cited by the report, Sir Adam Roberts, acknowledges in his remarks (albeit not included by the authors) that the fault may lie with the lawyers:
17. … This outcome may have been the result of a flawed argument by government lawyers, who had apparently chosen not to raise provisions of the law of armed conflict as a basis for detention…
Finally, the report, for the most part, ignores other international sources on the very issues it seeks to deal with (for example, in its study of Mohammed). The Strasbourg and British courts are not navigating these complex questions, particularly on the inter-relationship between IHL and IHRL, alone – the jurisprudence is very firmly based within the broader debate being had by other international courts and bodies. (See, for example, the discussion around the UN Human Rights Committee’s General Comment No.35). Yet, in failing to acknowledge the wider sources of international law, the report once again offers a one-dimensional view of the issues at hand.
This shortcoming also has consequences for the report’s proposed solution. The answer, for the authors, is to derogate from ECHR obligations in respect of future overseas conflicts using Article 15. But Article 15(1) dictates that member states may derogate “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law” (my emphasis). The fact that the report barely touches upon the other pertinent international law obligations which would continue to apply during derogations, and that it fails to explore how these obligations would interact with the Geneva Conventions on the problematic issues, raises questions about the ultimate suitability of derogations as the key solution to what the authors view as the problem of judicial overreach.
While this post offers only a snapshot of, in my view, the many problems with the Policy Exchange report, I refer readers to Marko Milanovic’s sophisticated and scathing critique over at EJIL: Talk! Ultimately, however, I think the report does a disservice to international law scholarship, even as it argues for the primacy of IHL.