Euro Rights Blog: Human Rights on the Battlefield
As poppies are sold to the public in streets to remember, honour and ‘support the British Armed Forces past and present, and their families’ Policy Exchange, a UK think tank, published a report entitled ‘The Fog of Law. An Introduction to the Legal Erosion of British Fighting Power’ arguing that human rights law undermines the ability of the UK forces to operate effectively on the battlefield.
The authors of the report denounce a ‘legal mission creep’ leading to a ‘legal encirclement’ negatively affecting the military (p. 17) and its operations. In the wake of the Smith judgment by the UK Supreme Court the harshest criticism is saved for the European Convention on Human Rights, described as ‘[t]he main weapon use in the challenges against the MOD in the UK’ (p. 17).
First, the authors take issue with the applicability of the European Convention on Human Rights to military operations abroad and seem to believe that the extra-territorial application of the Convention is a novelty (pp. 14-15). Yet, in 1978 (Cyprus v Turkey, Application No 8007/77) the European Court of Human Rights held Turkey responsible for violations of human rights on the territory of Cyprus that was occupied by the Turkish armed forces. The Court could not have been any clearer in the subsequent Loizidou case (Loizidou v Turkey (Application No 15318/89):
the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or though a subordinate local administration. (para. 62)
Several cases discussing the extra-territorial application of the ECHR followed: Ilascu (Ilascu et al. v Moldova and Russia, Application No 48787/99), Behrami and Saramati (Behrami and Behrami v. France and Saramati v France, Germany and Norway, Applications No 71412/01 and 78166/01), Issa (Issa and Others v Turkey, Application No 31821/96), Bankovic (Bankovic et al v Belgium et al (App no 52207/99)). It should be noted that the Court did not extend the application of the Convention in all these cases, thereby setting some limits to its application. What is more the authors omitted to mention other legal instruments, besides the European Convention on Human Rights, also have extra-territorial application. For example, the International Covenant and Civil and Political Rights applies abroad (e.g. Lopez Burgos v Uruguay, Communication No. 52/1979; Lilian Celiberti de Casariego v Uruguay, Communication No. 56/1979). More specifically, in the context of the deployment of troops abroad, some States (e.g. Israel, Iraq, Belgium, the Netherlands, etc.) have been criticised for failing to provide information on or address in their reports violations of human rights under the ICCPR. General Comment No 31, in no less clear terms than the Loizidou case, explains:
[a] State party must respect and ensure the rights laid down in the Covenant to anyone within the power and effective control of that State Party, even if not situated within the territory of the State Party … regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.
There can be no doubt that given the clear and consistent jurisprudence established by the European Court of Human Rights as well as the Human Rights Committee over the last decades the concept of extra-territoriality is here to stay and there is no point in denying its existence.
Second, the authors condemn the fact that the Court obliges contracting parties to guarantee some but not all rights enshrined in the Convention (p. 15). That the obligations of the States are tailored to the circumstances is clearly related to the ability of the State to safeguard and ensure human rights. This ability of the State to guarantee human rights extra-territoriality is linked to three circumstances: 1. cases where a State exercises ‘effective overall control’ over another territory (e.g. Cyprus v. Turkey), 2. cases where either state authorities act abroad (e.g. Öcalan v Turkey, Application No 46221/99) or their actions produce extraterritorial effects (e.g. Drozd and Janousek v France and Germany, Application No 12747/87), and 3. diplomatic, consular, and flag jurisdiction cases (e.g. X v United Kingdom, Application No 7547/76) and the Court has been careful to not extend obligations abroad that cannot be legitimately (and physically) safeguarded. The link between human rights obligations and ability to exercise effective control is thus of paramount importance. It makes sense to demand from British troops to ensure that individuals under their control such as detainees are afforded rights relating to their detention (i.e. Article 5 ECHR) in the same way as the ECtHR asked from Turkey and France to present detainees promptly before a court (Öcalan and Vassis et al v France (Application No 62736/09) respectively).
A way for States to limit their human rights obligations is to invoke Article 15 ECHR that allows for derogations from some of their obligations under the Convention. Yet, a closer reading of the language used in the Article shows that it could only be invoked if the conflict in which the State is involved ‘threaten[s] the life of the nation’, a situation highly improbable if troops are deployed abroad. Undoubtedly it would make sense for States to be allowed to invoke Article 15 ECHR in relation to military operations abroad, a proposal submitted by the authors (pp. 58-59). However, to some extent this is what the Court has done by specifying that only certain rights need to be upheld abroad. After all, it would be difficult for the Court to interpret Article 15 ECHR against its wording! Further, even if Article 15 ECHR could be invoked, the authors’ view that “whether this is free speech for those in sensitive positions, or the right to life, as in the case of the armed forces when going into battle, it is clear that rights can be temporarily suspended” (p. 31) is erroneous especially in relation to the right to life. It is not “suspended” as the right to life is a non-derogable right; rather, it is interpreted in light of international humanitarian law.
However, it must be stressed that the authors of the report do not militate against law as such. In fact the report is peppered by comments stressing the need for legal constraints. Yet, such legal framework should, according to the authors, be solely based on international humanitarian law. The major criticism is directed towards the extension of what they see as civilian law to the military. In their opinion human rights law and international humanitarian are two distinct, neatly separate, legal regimes. Whilst the first applies in peacetime the other applies whenever an armed conflict, whether international or non-international, occurs. In fact it is not that simple: human rights law instruments also apply in times of armed conflict as the International Court of Justice (ICJ) explained in the Advisory Opinion on the Wall in the Occupied Palestinian Territory (Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) ICJ Rep 136, paras 107-113):
the protection offered by human rights conventions does not cease in case of armed conﬂict save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. (para 106)
This position was reiterated by the ICJ on numerous occasions (Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) (Merits) (2005) ICJ Rep 116, para 216; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Order, 15 October 2008, para 109). The idea that international humanitarian law is the lex specialis does not automatically mean that human rights law is displaced as the ICJ again stressed in the aforementioned Advisory Opinion:
As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet, others may be matters of both these branches of international law. (para 106, emphasis added)
The complementarity of the two legal regimes must be highlighted, for human rights law provides guidance when humanitarian law treaties fail to do so (e.g. detention in non-international armed conflict, education in occupied territories). Whilst customary international humanitarian law does fill in some gaps its enforcement, in contrast to treaty obligations, is more difficult.
Moreover, contrary to the view of the authors who claim that ‘[t]he European Court of Human Rights … rarely acknowledges or even mentions IHL’ (p. 38), the Court has on numerous occasions used IHL language. For example in the Isayeva case (Isayeva v Russia, Application No 57950), the ECtHR used words such as ‘civilians’, ‘proportionality’, ‘targets’ in relation to checking whether the target is indeed lawful, use of ‘indiscriminate weapons’, ‘safe passage’, ‘minimise civilian casualties’, etc. and in Al Jedda (Al-Jedda v UK, Application No 27021/08) the Court examined the concept of detention under occupation according to Hague Regulations and the Geneva Convention IV (para. 107). Yet, it must be acknowledged that its interpretation of IHL is not always the most accurate and that it sometimes fails to understand the rationale of some its rules.
The authors appear to believe that every deployment of British troops is covered by international humanitarian law. In fact there are many instances in which British soldiers operate abroad in situations that do not reach the threshold of applicability of international humanitarian law (e.g. peacekeeping missions, the post-occupation phase in Iraq, anti-piracy operations) and where individuals are detained by British forces. Which laws are then applicable? The Geneva Convention IV, mentioned on pp. 37-38 and 41 of the report as providing a legal basis and specifying the conditions of detention, does not apply unless the authors wish to give the concept of ‘occupation’ an extremely broad interpretation. Not to mention cases where although an armed conflict is happening British forces come under friendly fire and are thus not protected by international humanitarian law. Too bad?
The report also seems to view it as an impediment that ‘military commanders at even the most junior levels are beginning to think about how their actions will be viewed by a court as well as how they will affect the enemy’ (p. 15). After all, that all members of the armed forces are aware of the UK’s international legal obligations relating to human rights should be applauded. This in turn means that the UK is less likely to be found in violation of not only the European Convention on Human Rights but also international customary and conventional human rights (e.g. ICCPR) and humanitarian law. Moreover such thinking should also lead to a reduction of instances of crimes under national and international law committed by army personnel.