“To restore the primacy of the law of armed conflict” is how ministers describe the purpose of the Overseas Operations (Service Personnel and Veterans) Bill, a piece of legislation currently making its way through the British Parliament. According to the government, the bill will halt the seemingly endless acts of “lawfare” being waged against British forces. According to its opponents, the proposed legislation will undermine the United Kingdom’s commitment to the rule of law.
This post examines the competing arguments, before turning to the duty the bill imposes on the secretary of state to consider derogating from the U.K.’s human rights obligations during certain overseas deployments. It suggests that the prevailing view, which treats this duty as a minor issue of limited importance, overlooks both its legal significance and the extent to which it represents an own goal by the bill’s drafters.
Lawfare or counter-lawfare?
The Overseas Operations Bill forms part of the U.K. government’s response to what it describes as the judicialization of war: the extension of human rights norms to overseas combat operations and the birth of a litigation industry that has unleashed a torrent of “vexatious claims” against British forces. The bill is designed to address this problem in three steps. First, it creates a statutory presumption against the prosecution of alleged offenses committed by members of the British armed forces when deployed on operations outside of the British Islands more than five years ago. Criminal proceedings relating to such incidents may go ahead only in “exceptional” circumstances and require the consent of the attorney general. Second, it restricts the courts’ ability to extend the time limits for bringing claims relating to personal injuries or deaths sustained during overseas operations. Finally, it imposes a duty on the secretary of state to consider derogating from the European Convention on Human Rights (ECHR) in relation to “significant” overseas deployments.
The bill has drawn fire from an unlikely coalition of retired military leaders, seasoned defense commentators, former government lawyers and human rights experts. Field Marshal Lord Guthrie, former Chief of the Defence Staff, expressed his dismay that the bill would let “torturers off the hook.” Michael Clarke, former director-general of the Royal United Services Institute, has argued that the proposals “fly in the face of international legal norms.” Elizabeth Wilmshurst, former deputy legal adviser at the Foreign and Commonwealth Office, suggests that the bill calls into question the U.K.’s commitment to a “rules-based international system.” Almost a dozen United Nations human rights special rapporteurs and experts have declared the bill to violate the “UK’s obligations under international humanitarian law, human rights law and international criminal law.”
These objections have not been received well by the government. Johnny Mercer, the minister in charge of shepherding the bill through Parliament, has been particularly irked by suggestions that the proposals will decriminalize torture. As proponents of the bill rightly point out, such claims are misplaced: Torture will remain a criminal offense in the U.K. While some ministerial irritation may be understandable, Mercer has dismissed objections voiced against the bill during its debate in Parliament as “vacuous nonsense” in one sweeping, wholesale gesture. This attitude is a worrying sign that the government may be closing its eyes to more constructive criticism.
Despite reassurances that the bill is compatible with the U.K.’s international obligations, experts warn that key elements of the legislation undermine the enforcement of the law of armed conflict and fail to meet the standards imposed by international criminal law. This does not merely raise doubts over the depth of British commitment to a rules-based international order, but it is also counter-productive. The bill’s stated objective is to uphold the primacy of the law of armed conflict, yet it puts obstacles in the path of repressing war crimes. Whereas it purports to protect British service personnel from litigation, it may actually open the U.K. up to greater scrutiny by the International Criminal Court. Whilst it is meant to put an end to abusive claims against British troops, it raises suspicions that the British government itself is dabbling in lawfare. Ironies abound.
The duty to consider derogating
One aspect of the bill that has received less attention than it should is the duty laid upon the secretary of state to consider derogating from the ECHR. Under Article 15 of the ECHR, State parties may take measures derogating from their obligations under the Convention in times of “war or other public emergency threatening the life of the nation.” The bill imposes a duty on the government to consider availing itself of this power in appropriate circumstances.
In response to Parliamentary questions, Damian Parmenter, director of the Defence and Security Industrial Strategy in the Ministry of Defence, recently confirmed that the government would seek derogations first and foremost in relation to detention operations and hence the right to liberty set out in Article 5 of the ECHR.
In the recent past, U.K. forces have detained thousands of individuals during the military campaigns in Iraq and Afghanistan. Clearly, this was exceptional. It is unlikely that the British forces will mount large-scale overseas detention operations other than in the context of belligerent occupation or other deployments involving ground troops holding foreign territory, whether as part of an international or a non-international armed conflict. While it would be rash to totally discount the likelihood of such operations occurring, neither the political appetite nor the capacity exists to undertake them in the near future. Of course, British forces may detain individuals in smaller numbers during more modest overseas operations, for instance in the context of anti-piracy operations. However, such deployments are unlikely to amount to “significant” operations within the meaning of the bill and thus would not trigger the duty to consider derogating.
Consequently, the likelihood that the U.K. will conduct detention operations that engage the duty to consider derogations from Article 5 of the ECHR is slim. All of this seems to underscore the impression that the duty is of limited practical relevance and mostly an exercise in “window dressing.” However, this underestimates the legal significance of derogations.
The extra-territorial applicability of the ECHR: Hosting a white flag?
Over the last two decades, the ECHR repeatedly confirmed that it may apply to overseas military operations in two main circumstances: when a State party exercises control over foreign territory or when it exercises authority and control over individual persons. In Al-Skeini and Jaloud, the Court also proclaimed the applicability of the Convention in a third set of circumstances, namely situations where a State party assumes responsibility for the exercise of public powers abroad and subsequently carries out action that creates a jurisdictional link between itself and individual persons, regardless of whether it exercises effective control over the territory or persons in question.
Between them, these three scenarios ensure that the ECHR applies to virtually all overseas operations, bar one type. The one exception is a scenario in which a State party deploys military force in foreign territory not under its control against individuals not in its custody, and does so without the invitation of the territorial sovereign or pursuant to a United Nations Security Council mandate. The drone strike carried out by British forces against Reyaad Khan on August 21, 2015, in Syria provides an example of such a scenario.
There is some debate as to whether the ECHR applies to situations such as the Reyaad Khan strike pursuant to existing case law. In the case of Al-Saadoon, the English High Court answered in the affirmative. The Court of Appeal took a different view, holding that the use of lethal force by State officials against a person not in their physical custody does not, without more, trigger the extra-territorial applicability of the ECHR. The European Court may address the question in its forthcoming judgment in Hanan v Germany, a case arising from the Kunduz tanker bombing incident in 2009, although it could decide the case just as well by simply applying its existing case law. In any event, until the Strasbourg Court settles the issue, the extra-territorial applicability of the European Convention to the use of lethal force at a distance remains uncertain.
If the U.K. were to derogate in relation to overseas military operations, it would implicitly accept that the ECHR governed the activities of British forces abroad. Why derogate, if the Convention did not apply in the first place? Although at this point contesting the extra-territorial applicability of the Conventions seems like a lost cause, the Al-Saadoon case illustrates that not all battles over this matter have been fought yet. Entering derogations in relation to overseas operations may well preclude the U.K. from contesting the extra-territorial applicability of the ECHR in future cases. This represents a significant and unspoken shift in policy, still another irony of the Overseas Operations Bill.
The legal hazards of derogations
Even more difficult to reconcile with the stated objectives of the bill is the government’s intention to derogate first and foremost only in relation to Article 5 of the ECHR. The wisdom of this approach is questionable.
In the case of Hassan, the European Court declared that the grounds of permitted deprivation of liberty set out in Article 5 of the ECHR “should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions” of 1949. In essence, the Court agreed to add an unwritten exception to the right to liberty enshrined in Article 5 of the ECHR to allow for the interment of prisoners of war and the security detention of civilians during international armed conflicts. However, the Court’s willingness to do so was based on the consistent and long-standing practice of the State parties not to derogate from their Article 5 obligations when detaining persons under the Third and Fourth Geneva Conventions. By commencing to derogate now, the U.K. would break with existing State practice and risk unravelling this accommodation.
Just as importantly, by derogating only in relation to the right to liberty, but not its other obligations under the Convention, the U.K. may invite potential claimants and the Court to demand that British forces comply with those obligations in full. For instance, a partial derogation limited to Article 5 of the ECHR may see the Court accept the detention of prisoners of war, but not necessarily the use of lethal force against enemy combatants or the incidental loss of civilian life in compliance with the law of armed conflict. Although in previous judgments the Court has accepted that the suppression of an illegal insurgency may justify the deployment of “army units equipped with combat weapons, including military aviation and artillery,” it still applied a standard of “absolute necessity” and insisted that those army units display a degree of “caution expected from a law-enforcement body in a democratic society.” Even if the Court were to apply these standards to overseas conflicts, including international armed conflicts, it is difficult to see how they could be reconciled with operations geared towards the attrition of enemy personnel, for instance.
The difficulties do not stop here. Should the U.K. decide to derogate not just from the right to liberty, but also the right to life in relation to lawful acts of war, it would run into the problem that the power (to borrow the Court’s phrase from Hassan) to employ lethal force against enemy combatants is not spelt out in express terms in any of the key law of armed conflict treaties. That such a power exists in international armed conflict is not in doubt. Indeed, Article 15 itself speaks of derogations from the right to life in relation to “lawful acts of war,” which implies that at least some killing in war is permissible. However, in the absence of express provisions, the U.K. would have to establish the scope of this power and do so with reference to unwritten rules and practice, should the legality of its derogation be challenged.
Non-international armed conflicts pose even more daunting challenges. The relevant treaties do not expressly provide either for a power to detain or a power to use lethal force. In Al-Waheed, the U.K. Supreme Court expressed doubts over the existence of a power to detain under customary international law. While these doubts may be misplaced, they illustrate that the legality of status-based operations in non-international armed conflict is not taken for granted. Any derogation seeking to suspend the applicability of the right to liberty and the right to life in relation to non-international armed conflicts therefore will almost inevitably invite a legal challenge, which the U.K. would have to answer with reference to custom and State practice.
In summary, the foregoing suggests that partial derogations limited solely to Article 5 of the ECHR are a bad idea: They may give rise to an expectation that U.K. forces should comply with their other Convention obligations in full. However, this does not mean that more comprehensive derogations that extend to Article 2 of the ECHR are a good idea. They undermine the Hassan judgment just the same and would still require the U.K. to prove the existence and scope of any power to use lethal force with reference to customary international law.
The U.K. government has a choice: It may tie itself into legal knots by derogating or it could take a principled approach and invoke the law of armed conflict as lex specialis, as it has done in Hassan. Derogations offer no real advantages over the lex specialis approach and solve none of the difficulties associated with it, such as the power to conduct status-based operations in non-international armed conflict. On balance, the U.K. government therefore would be well advised to steer clear of derogations.
The Overseas Operations Bill has sparked a passionate debate in Parliament and beyond. This reflects the importance of the issues at stake: fairness towards those who are tasked to defend the realm, justice for the victims of wrongdoing, and upholding the commitment to the rule of law. Sadly, but perhaps not surprisingly, this debate has seen a fair share of vilification and populism too. Many of those objecting to the bill in a constructive spirit acknowledge the problem the government is seeking to address, but chide it for going about it the wrong way. The government and its ministers would do well to listen to these voices more carefully.