Derogation and the armed forces

In her speech to the Conservative Party Conference this week, Theresa May declared, to enthusiastic applause from the members present : “We will never again – in any future conflict – let those activist, left-wing human rights lawyers harangue and harass the bravest of the brave – the men and women of Britain’s Armed Forces.”

This has been widely interpreted to mean that Mrs May intends for the UK to derogate from the European Convention on Human Rights (ECHR) under Article 15 during future conflicts. The Government has been increasingly concerned that human rights legislation, and in particular the ECHR, is being applied to the armed forces overseas. This issue continues to trouble the Ministry of Defence (MoD) which, since the start of the Iraq War, has received over 2,000 public and private legal claims relating to British military action. Derogation was first mooted as a possible solution by the previous Lord Chancellor, the Rt Hon Michael Gove MP.

What is Article 15?

Article 15 can be considered the ‘get out’ clause of the ECHR. It permits signatories, temporarily, to suspend some aspects of the Convention’s provisions. Lawful derogations under Article 15 must meet three clauses:

  1. There must be a public emergency threatening the life of the nation;

  2. Any measures taken in response must be "strictly required by the exigencies of the situation"; and

  3. The measures taken in response to it, must be in compliance with a state's other obligations under international law

To date, ten member states have derogated from the ECHR on at least one occasion. The United Kingdom has derogated on a number of occasions; including during the Troubles in Northern Ireland, and following the 9/11 attacks on the World Trade Centre in 2001.

While derogation has occurred and been accepted as legitimate during such times of emergency, no member state, has, to date, ever relied on Article 15 to derogate from its Convention obligations specifically with regard to extraterritorial military operations.

Can the UK derogate in times of war?

Whether the UK can derogate during an armed conflict is chiefly a question of whether such armed conflicts can constitute an emergency threatening the life of the nation.

In the recent wars in Afghanistan and Iraq it would be difficult to show that these wars were provoked by an emergency which threatened the life of the UK mainland. The ECHR further states that, in order for a derogation itself to be valid, the emergency giving rise to it must:

  1. Be actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures;

  2. Involve the whole nation, although a threat confined to a particular region may be treated as "threatening the life of the nation" in that particular region;

  3. Threaten the continuance of the organised life of the community;

  4. Be exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.

However, despite this, there are reasons to believe that a derogation from the ECHR may have been lawful in the cases of Iraq and Afghanistan. Typically, the ECHR does not apply to the actions of a signatory which take place overseas. However, in the cases of Iraq,  the European Court of Human Rights found that one of the exceptional circumstances in which the ECHR could apply extraterritorially was when a signatory exercised ‘public powers’ on the territory of another state. The Strasbourg court found that the UK “assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”. That is, the UK was effectively operating as a government during the Iraq conflict, and could therefore be considered to have expanded its territory.

It could therefore be credibly  argued that a local threat to soldiers and civilians in Iraq could be considered a threat to the nation. Professor Marko Milanovic writes that “the ‘threat to the life of the nation’ criterion should be interpreted by reference to the life of the (overseas) local community in which the emergency is taking place”. It seems likely that the more the ECHR is held to apply extraterritorially in this way, the more frequent  will become instances of derogation in future such circumstances.

The limits of derogation

So the UK will almost certainly be able to derogate during some armed conflicts where it can be argued that the UK, as a nation, is at risk. However, there are a number of limitations which make the Prime Minister’s commitment never again to let human rights lawyers bring cases against British Armed Forces look unachievable.

Torture

The UK cannot, in any circumstances, derogate from its Article 3 duties to prohibit torture. Since the Iraq War, the British army has settled 600 outstanding claims from Iraqi citizens who allege torture at the hands of British troops. So far £19.6m ($27.4m) has been paid out in compensation to victims. Many of these cases relate to the actions of British soldiers in the now notorious Abu Ghraib prison.

Indeed, torture cases against the British Army make up most of the cases brought by the Iraq Historic Allegations Team -  a unit set up by the UK government in March 2010 to investigate allegations of abuse and torture by British soldiers in Iraq. Derogation will not prevent any of these cases from being brought.

Uncertainty

While the UK can derogate during times of war, it may be unclear afterwards whether that action was lawful. The courts can decide retrospectively that a derogation was invalid. For instance, in the days following 9/11, the then UK Government chose to derogate from some of its ECHR commitments. Subsequently, the House of Lords, (then the UK’s highest court) ruled that detaining foreign terrorist suspects without trial was unlawful. In the ‘Belmarsh Case’, the law lords determined that the Government had failed to show that detention without trial was necessary, and had therefore not met the ECHR’s requirements under Article 15.

Such  uncertainty could make things worse for armed forces involved in future conflicts. Soldiers may go into battle  with the impression that their actions will not be subject to challenge under the  Convention, only to find subsequently that this is not the case.

Conclusion

The evidence suggests that the United Kingdom can indeed derogate from the ECHR during conflicts such as the Iraq War. However, this is not likely to prevent law practitioners from bringing human rights cases against British troops during future conflicts. The armed forces will still be susceptible to potential allegations of torture, since the UK cannot derogate from Article 3 of the ECHR. Moreover, there is likely to be significant uncertainty during any conflict, since the courts could decide that a derogation was invalid after the UK government had declared it.  The Prime Minister’s robust statement this week had a clear intent, but may prove more difficult to deliver in practice.

James Dobson is a researcher at Bright Blue