Different Human Rights at Home and Abroad: Immunity for British Soldier during Overseas Operations

Yesterday, October 4, 2016, U.K. Defence Secretary Michael Fallon proclaimed that British soldiers need to be protected from “spurious claims.” He said that soldiers should not worry about “the extension of the European Convention on Human Rights to foreign battlefields.” These statements are politically pleasing for conservative ears, but they are void of much legal value. In this short space, I will try to explain that although the U.K. government is sending an important message, legally speaking it cannot be taken very seriously.

The statement by Mr. Fallon is important politically. He appears to be promising to invoke Article 15 of the European Convention on Human Rights, which envisages derogations in time of emergency, every time British troops are engaged in operations overseas. As political statecraft, his statements tell the European Court of Human Rights (ECtHR) that the U.K. is not happy with its case law on extraterritorial application of the European Convention. Extraterritorial application means that the European Convention on Human Rights can be applied outside the borders of the Contracting Parties like the U.K. when its troops exercise effective control insider foreign territory. In a number of cases, for example, the Court established that the U.K. exercised such control in Iraq or that Russia had an effective control over a Moldovan province called Transnistria. Although the Court’s case law in this area is confusing and complicated the Convention would lose some part of its bite if it applied only within the geographical borders of the Council of Europe. Human rights are universal and should be protected by the states that ratified the European Convention both at home and abroad, most especially if they choose to undertake a military operation there. Fallon’s statements will have more practical political consequences—they will find many supporters and will be happily adopted in other parts of Europe. Russia, for one, would be delighted if its troops in Ukraine or Moldova are free from the supervision of the ECtHR. Russian media were noticeably quick to report that the U.K. will exempt troops from European Convention to stop “annoying” claims.

Legally speaking, Mr. Fallon’s statements do not offer much.

Article 15 of the Convention states that, in time of war or other public emergency threatening the life of the nation, the Contracting Parties can derogate from the obligations of the Convention. It is legally not possible to issue derogations prospectively—that is, for application in the case of future conflicts. Therefore, the government at the time will have to decide on a case by case basis if derogation is actually needed.

The scope of derogation under the Convention is very limited and tightly regulated. Those rights that are most often invoked in case of armed conflicts are “non-derogable” in any case. It is not possible to derogate from the obligation to protect the right to life (except in respect of deaths resulting from lawful acts of war), or the prohibition of torture or slavery. The U.K. will still be under the obligation to make sure that these rights are secured during future armed conflicts—including making sure that deaths result from lawful acts of war to comply with the Convention. Other rights of the Convention, like the right to privacy and freedom of religion, can be limited even without derogation under Article 15. They can be limited in their everyday operation for reasons such as economic well-being of the country or public safety. Arguably, derogation would justify more intense interference with these rights but it seems that Mr. Fallon is not particularly concerned about claims under these Articles of the Convention.

In fact, derogation is mostly relevant in relation to the right of liberty and security which prohibits arbitrary arrests and guarantees the right to a fair trial. Both of these rights can be violated during an armed conflict and the ECtHR takes the situation of emergency into account. But the important lesson here is that a derogation will not mean an absence of any judicial control at all. On the contrary, the Court will continue to act as a supervisory body of the Convention. Simply put, derogation is incapable of shielding the U.K. government from external control. Why is this so? The Court checks if a derogating measure is necessary and clearly linked to the nature of the conflict. Accordingly, the ECtHR would not allow indefinite arrests without trial; and it would not permit instances of denial of justice. The U.K. did derogate from the Convention in the past. It took this step during the so-called “Troubles” in Northern Ireland. Yet that derogation did not stop the ECtHR from considering a number of applications from the victims of human rights violations arising out of that long episode. In short, the instrument of derogation has the potential to remove only a very limited number of possible state actions from the Court’s attention.

It is also unclear whether the ECtHR will accept the broad sweeping type of derogation that Mr. Fallon envisions. Think what it means for the government to try to derogate every time British troops are engaged in operations overseas. Albeit not in all cases, military operations abroad are typically undertaken voluntarily, irrespectively of how onerous they are. In simple terms, the U.K. when acting abroad decides to create a situation of emergency and then chooses to derogate from the European Convention on Human Rights due to this emergency. It is like setting a fire to your own house and then claiming insurance money for your situation. In real life it is called insurance fraud, but the Conservative leadership thinks that international law should work differently. It doesn’t.

Finally, Mr. Fallon stated that he wants to protect British veterans and soldiers form “vexatious claims.” However, to whatever degree protection is possible, it is not the soldiers that he can protect by derogating from the European Convention: it is the government. Only states can be respondents at the ECtHR, and only respondents can be found in violation of the European Convention on Human Rights. The ECtHR is not a criminal tribunal, and it cannot try war criminals or assign individual liability. Admittedly, the Court might request the UK to undertake effective investigations into any violation of human rights, but is that not what a state which adheres to rule of law should do anyway? It seems that Mr. Fallon is more concerned about the immunity for his government than about the immunity for British soldiers, even though his claims are cloaked in the latter’s interests.

If the only purpose of Mr. Fallon’s statements about future derogations from the European Convention in cases of British military operations abroad was to gain some political capital and send a symbolic gesture to the ECtHR, then he may have accomplished much of his goal. In practical legal terms, the value of his proposed path forward is very limited. The ECtHR does not pose any threat to British soldiers individually, and these future derogations will not shield the government significantly from the ECtHR. 

About the Author(s)

Kanstantsin Dzehtsiarou

Senior Lecturer in Law at the School of Law and Social Justice at the University of Liverpool, UK, Visiting MacCormick Fellow at the University of Edinburgh, Visiting Professor at the European Humanities University, Lithuania, Author of "European Consensus and the Legitimacy of the European Court of Human Rights" Follow him on Twitter (@dzehtsiarou).