Speaking at the annual conference of the Conservative Party on October 4, U.K. Defence Secretary Michael Fallon sought to reassure Britain’s nervous allies and the general public about the implications of Brexit. Leaving the European Union, he said, “does not mean we are stepping back from our commitment to the security of our continent.” The Government is investing in new aircraft carriers, maritime patrol aircraft, attack helicopters and armoured vehicles to ensure that Britain is “ready to defend freedom and the rule of law to advance democracy and protect human rights.”

But new equipment is not enough. As the Defence Secretary explained, the Government will also take action to protect the British armed forces from vexatious human rights claims:

… much of the litigation we face comes from the extension of the European Convention on Human Rights to the battlefield. This is damaging our troops, undermining military operations, and costing taxpayers’ millions. So I can announce today that in future conflicts we intend to derogate from the Convention. That would protect our Armed Forces from many of the industrial scale claims we have seen post Iraq and Afghanistan. Now this isn’t about putting our Armed Forces above the criminal law or the Geneva Conventions. Serious claims will be investigated – but spurious claims will be stopped. And our Armed Forces will be able to do their job, fighting the enemy, not the lawyers.

This new derogation policy should not come as a surprise. In its election manifesto of 2015, the Conservative Party had promised to ensure that the armed forces are not subject to “persistent human rights claims” when acting overseas (Conservative Manifesto, p. 77). Separately, the House of Lords Defence Committee has specifically identified derogations under Article 15 of the European Convention on Human Rights (ECHR) as one of the measures available to the Government to reduce the adverse impact of human rights law on military effectiveness (UK Armed Forces Personnel and the Legal Framework for Future Operations, pp. 37–38).

Nevertheless, Michael Fallon’s announcement marks a dramatic shift in government policy. For years, the UK has contested the extra-territorial applicability of the ECHR before the courts. Doing so made strategic sense. If the Government’s aim was to prevent the application of the substantive rights and freedoms guaranteed by the ECHR to overseas military operations, there was hardly a more effective way of doing so than by denying the applicability of the ECHR to military activities conducted abroad altogether. No extra-territorial jurisdiction, no extra-territorial obligations, no human rights litigation—so the thinking went.

Derogations did not fit well with this strategy. In fact, they were downright counterproductive. Article 15 of the ECHR enables a State party to derogate “from its obligations under this Convention.” The ability to derogate is only relevant to the extent that the substantive obligations under the ECHR are applicable to the State party in the first place. Consequently, by entering a derogation under Article 15, the UK would have implicitly admitted that the Convention does apply to overseas military operations. That could have undermined its ability to continue to contest the extra-territorial scope of application of the ECHR.

While the Government’s preoccupation with Article 1 (the scope of jurisdiction) at the expense of Article 15 (derogations) may have made strategic sense, it proved to be largely unsuccessful at the tactical level. Despite contesting the extra-territorial applicability of the ECHR “vigorously” (Government Response, p. 9) both at home and in Strasbourg, the courts have steadily expanded the scope of Article 1 to apply to a growing range of overseas military activities (see Al-Skeini, Smith and Al-Saadoon [2015]). Faced with this losing streak in the court room, the Government may well have started to look upon derogations more favourably. A justified fear of running out of options may also have contributed to the shift in policy. In March 2015, Mr Justice Leggatt held that the use of physical force against an individual suffices to trigger the applicability of the ECHR (Al-Saadoon [2015], para. 106). Earlier this year, he added that the killing of civilians in the context of an armed conflict always activates the duty to conduct an effective investigation into the legality of the use of lethal force (Al-Saadoon [2016], paras 93–94). It seems to follow, therefore, that in the context of its current operations against ISIL in Iraq and Syria, the UK is under a duty to carry out an effective investigation into a lethal strike carried out against civilians directly participating in hostilities, in cases where it suspects that a strike may have caused incidental loss of civilian life and, arguably, where reasonable doubts may arise whether a target was a member of an organised armed group or a civilian direct participating in hostilities. According to the European Court’s case-law, an effective investigation in such circumstances includes the duty to secure evidence concerning the incident, such as eye-witness testimony, forensic evidence and, where appropriate, an autopsy, a degree of public scrutiny and the involvement of the victim’s next of kin (Al-Skeini, paras 163­–167). Frankly, given that the UK is conducting air operations with no boots on the ground, it is difficult to see how it could even begin to comply with such a duty. This would seem to leave the UK with one of two options. Carry on and risk being found in breach of the ECHR – or just give up on air power.

Derogations might offer a solution. They might also afford an opportunity to regain the initiative from the courts. However, there are significant costs and difficulties involved.

First, the Court of Appeal’s recent judgment in Al-Saadoon (see commentary here) suggests that it would be premature to conclude that the Government has lost the argument about the extra-territorial reach of the ECHR. There is still plenty of room for questioning the scope of Article 1 and the corresponding jurisprudence. For instance, it is open to debate whether a unilateral lethal engagement brings the target within the “control” of a State party (see Written Evidence by Noëlle Quénivet and Aurel Sari, para 21). Indeed, nothing suggests that the Government has conceded defeat on Article 1 by adopting its new derogation policy. Yet the fact remains that it will be difficult to contest the extra-territorial applicability of the ECHR and to derogate from it at the same time without being accused of embracing incompatible legal positions.

Second, the Government will have to make a compelling case that the conditions for invoking Article 15 are satisfied, including the existence of “war or other public emergency threatening the life of the nation.” In Al-Jedda, Lord Bingham thought it unlikely that “these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.” The Government will also have to establish that Article 15 is available in an extra-territorial setting at all. The position is not settled, though the better view is that derogations are in fact available in overseas operations (Written Evidence by Aurel Sari, paras 15–19). Conveniently, this position also enjoys the support of Mr Justice Leggatt, who wrote in Serdar Mohammed:

Article 15, like other provisions of the Convention, can and it seems to me must be “tailored” to such extraterritorial jurisdiction.  This can readily be achieved without any undue violence to the language of Article 15 by interpreting the phrase “war or other public emergency threatening the life of the nation” as including, in the context of an international peacekeeping operation, a war or other emergency threatening the life of the nation on whose territory the relevant acts take place.

Third, although the Government has been tight-lipped about the details, it did make clear that its new derogation policy involves a presumption to derogate from the ECHR in “future conflicts.” This suggests that the Government intends to invoke Article 15 primarily or even solely in situations of armed conflict, that is in circumstances where international humanitarian law applies. This threatens to undermine its separate argument that the application of the Convention has to take account of international humanitarian law as the applicable lex specialis during times of armed conflict. In Hassan, the European Court of Human Rights conceded this point and agreed to interpret and apply Article 5 of the Convention in the light of the relevant provisions of international humanitarian law precisely because it found that the consistent practice of the contracting parties to the ECHR was not to lodge derogations under Article 15 in respect of detention during international armed conflicts (paras 100–107). In Al-Saadoon [2015], Mr Justice Leggatt indicated that the reasoning in Hassan should also extend to the right to life under Article 2 of the ECHR (para. 111). This means that, at best, derogations are superfluous in international armed conflict as it suffices for the respondent State to plead that it was detaining individuals or using lethal force against them under powers conferred by international humanitarian law. The relevance of derogations would thus be confined to non-international armed conflicts, since the courts so far have not accepted that the reasoning in Hassan can be extended to these circumstances (Court of Appeal, Serdar Mohammed, para. 123; for a contrary view, see Aughey and Sari). At worst, however, the UK’s impending practice of derogating in times of armed conflict could risk unravelling the careful reasoning in Hassan and the prospect of a lasting “accommodation” between Convention obligations and international humanitarian law prerogatives. If the contracting parties now show themselves ready to derogate, why should the European Court of Human Rights do the work for them by way of interpretation?

Fourth, it is noteworthy that the Government introduced its new policy as a measure designed to protect British service personnel from vexatious claims, rather than one (also) intended to preserve military effectiveness and the utility of force. There is no doubt that investigations into allegations of human rights abuses have a significant personal impact on the service personnel called upon to give evidence or to justify themselves. For example, Colonel (retd) Richard Kemp, an outspoken critic of what he describes as the “endless, morale-sapping investigations into our troops,” has welcomed this week’s announcements. But he also called upon the Government to go further and end ongoing investigations into historic allegations of abuse. Expectations such as these will be difficult to satisfy, bearing in mind that the UK is under an obligation to investigate war crimes, which often overlap with allegations of core human rights violations. Ending or avoiding such investigations also seems ill-advised in the light of the Rome Statute.

Finally, it must be recalled that derogations are permissible only to the extent strictly required by the exigency of the situation. Nor do they absolve the UK from complying with its other obligations under international law. These include other international human rights agreements to which the UK is a party, such as the International Covenant on Civil and Political Rights, for which separate derogations would be needed. They also include human rights norms forming part of customary international law. The effect of derogations under Article 15 of the ECHR on such customary rules is unclear.

Overall, the potential costs of the Government’s new derogation policy could be considerable and its benefits remain uncertain.