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Judicial imperialism is defeating the British armed forces. At least this is what the authors of a report recently published by the Policy Exchange---an influential British think tank---claim. Provocatively entitled Clearing the Fog of Law: Saving our Armed Forces from Defeat by Judicial Diktat, the report argues that the judicial extension of peacetime legal standards to the battlefield is harmful to operational effectiveness and calls upon the UK Government to reverse this trend. The report builds upon an earlier paper on the same topic published by the Policy Exchange in November 2013 (read here and see comments here, here and here). Benjamin Wittes linked to it here. There is little doubt that the British armed forces are facing significant legal challenges. These must be addressed as a matter of priority. However, neither the fiery tone of the report nor its actual policy recommendations are best suited to preserve the operational freedom of the military. In this post, we seek to explain why this is so (for a more detailed analysis along similar lines, see here). Real and pressing problems A debate is raging in the UK about the effect of law on military operations. Legal constraints and the threat of litigation are widely blamed for undermining the effectiveness of the British armed forces. International human rights law, in particular the European Convention on Human Rights (ECHR), is singled out as the main culprit. Over the last two decades, the ECHR has exerted a growing impact on the military. Legal challenges under the Convention have led to the reversal of long-standing policies on the discharge of homosexual service personnel (see Smith and Grady v UK), prompted a complete overhaul of the British military justice system to bring it into line with the requirements of the ECHR (see Findlay v UK) and set in motion the gradual extension of the European Convention’s scope of application to military operations conducted overseas (see Al-Skeini v UK). In the light of these developments, Clearing the Fog of Law is right to declare that the ‘British military is now thoroughly entangled in the net of human rights law---often to the benefit of our country’s adversaries’ (p. 7). The impact of human rights on detention is a case in point. Not only have human rights considerations seriously hampered detention and intelligence gathering in Afghanistan, but the recent case of Serdar Mohammed has questioned the very existence of a legal basis under the law of armed conflict for the conduct of status-based operations in non-international armed conflict. This drives the convergence between human rights law and the law of armed conflict too far (see here). The report is also right to emphasize the growing influence of the judiciary in this respect. The extension of the European Convention to overseas operations is an almost entirely court-driven process. The case of Jaloud represents the current high-watermark of the Strasbourg jurisprudence on the extra-territorial application of the Convention. It suggests that the application of the ECHR is triggered when a Contracting Party assumes authority for security in a third country and establishes some additional jurisdictional link with a claimant, for instance by setting up a checkpoint, even without exercising effective control on the ground. In most contemporary peace operations, these conditions are satisfied rather easily (see here). More recently, the English High Court adopted an even more expansive approach in the case of Al-Saadoon, holding that whenever a Contracting Party ‘purports to exercise legal authority or uses physical force, it must do so in a way that does not violate Convention rights’ (para. 106). According to the High Court, this includes the use of lethal force by a Contracting Party’s armed forces against individuals who are not otherwise within its physical control. Consequently, Al-Saadoon now extends the ECHR to active combat operations. This contradicts the European Court’s assurances in Banković that the Convention does not admit a ‘cause-and-effect’ notion of jurisdiction (para. 75) and stretches the jurisdictional limits of the ECHR to their breaking point. But is the Diagnosis and the Treatment Right? While the report deserves praise for calling attention to the legal challenges facing the British armed forces, its assault on ‘judicial imperialism’ (p. 7) nevertheless betrays an incomplete understanding of the legal dynamics at play. For better or for worse, international human rights law has emerged as a key component of the legal framework of British military operations. This process is driven by a number of developments. At the international level, we have witnessed the spectacular growth of human rights norms and supervisory bodies. Increasingly, the normative foundations of the international legal order are shifting away from the traditional bedrock principles of State sovereignty and State security to new foundations based on human rights and human security. At the domestic level, we have seen social attitudes become more favourably disposed towards human rights discourse, together with a gradual decrease in society’s traditional deference towards the armed forces. The incorporation of the ECHR into English law through the Human Rights Act 1998 has not only enabled individuals to bring human rights claims directly before the English courts, but it has also helped to render the English legal system more receptive towards international law and legal arguments. In the political domain, the shift of strategic attention away from wars of necessity and towards wars of choice has fuelled demands for greater accountability and transparency in foreign policy and defence matters, as illustrated by the passionate public debates surrounding the use of military force since the intervention in Iraq in 2003. In short, the growing impact of international human rights law on the British armed forces is in part a symptom and in part a driver of a much broader legal transformation. Blaming it all on an ‘imperial judiciary’ (p. 9) is misleading and short-sighted. Judicial bodies are not the only actors responsible for the progressive expansion of international human rights law. The convergence between human rights law and the law of armed conflict was not initiated by the courts nor have they been alone in driving forward this convergence since the 1970s. Tarring all courts with the same brush also ignores the fact that significant differences exist between domestic and international courts. Generally speaking, the English judiciary has traditionally been far more hesitant in applying the ECHR to military operations than the Strasbourg Court. At best, domestic courts are allies in the cause of preserving operational freedom. At worst, they are the lesser evil. The report seems oblivious to these nuances. It heavily criticizes the Supreme Court’s decision in Smith v MoD, amongst other things for supposedly misconstruing Article 2 of the ECHR in a way that imposes broader obligations on the Contracting Parties than those mandated by the Strasbourg Court. This objection is open to question. In Smith, the majority and the minority were united in their view that certain claims relating to military operations are not justiciable and escape the reach of Article 2 of the Convention altogether. This may be contrasted with the European Court’s decision in the case of Stoyanovi, which suggests that a Contracting Party’s duty to safeguard the lives of those within its jurisdiction applies at all times, including on the battlefield, although the content of that duty will depend on the circumstances. If this is correct, the UK Government would be ill-advised to put all its efforts into fighting the applicability of Article 2 of the ECHR to its armed forces, but instead should focus on adjusting its application to suit the special circumstances of life, and death, in the military. By designating judicial activism as the main source of the legal difficulties facing the British military, the report advocates policy solutions which are both overly ambitious and underinclusive. The point may be illustrated with reference to the report’s recommendation of using Article 15 of the ECHR to reinstate the primacy of the law of armed conflict over the Convention. According to the report, the law of armed conflict provides a realistic framework for military action based on a balance between humanitarian considerations and military necessity. By contrast, it decries human rights law as a set of peace-time standards unsuitable for regulating the conduct of hostilities. The report therefore recommends that the Government should make use of derogations under Article 15 of the ECHR in order to restore the primacy of the law of armed conflict. In doing so, it overlooks a series of important limitations, including the fact that derogations are incapable of displacing the applicability of the Convention as a whole, that they are subject to scrutiny by the European Court and are without prejudice to other applicable rules of international law, including other applicable human rights norms, and that the rules of the ECHR overlap with those of the law of armed conflict in a number of respects. The report thus paints a picture of derogations as a magical panacea capable of resolving all the real and perceived ills stemming from the ECHR’s relationship with the law of armed conflict. This is misleading, because it promises a degree of legal clarity and certainty which derogations simply cannot deliver. It is also counterproductive, because it diverts attention away from other potential solutions to preserve operational freedom, such as the principle of lex specialis. The case of Hassan, which saw the European Court ‘accommodate’ the power of detention under the Third and Fourth Geneva Conventions of 1949 with the more restrictive provisions of the European Convention (see para. 104), underlines the importance of these alternatives. The Way Forward: Time for a Reality Check There is little hope in reversing the underlying social and legal developments which are responsible for the legal challenges currently facing the British armed forces. If this is the case, then the complexity and uncertainty that these developments have engendered cannot be reversed easily either. What this means is that the search for legal solutions which completely banish international human rights law from the conduct of military operations is but a pipe dream. In particular, it is a mistake to suggest that the law of armed conflict is capable of serving as the sole legal framework governing overseas military deployments. Such deployments often take place, either in part or entirely, outside the context of an armed conflict. In such situations, the law of armed conflict is not applicable at all. Nor does this branch of law extend to all legal questions and relationships which may arise during the conduct of hostilities, such as the treatment of combatants by the State to which they belong. At any rate, the concurrent applicability of international human rights law and the law of armed conflict is too well-established by now. For these reasons, the cause of safeguarding the operational freedom and effectiveness of the British armed forces is better served by a more nuanced approach which aims to manage the adverse effects of the legal challenges confronting the military. As part of such an approach, the UK Government should direct its efforts at establishing the outer limits of the extra-territorial applicability of the ECHR and achieving a balance between international human rights law and the law of armed conflict in a way that does not undermine the normative integrity of either branch of law. This requires the Government to rely on a broad spectrum of means and methods available to it. Derogations are an important, but not a sufficient, tool in this respect.
Aurel Sari is a Lecturer in Law at the University of Exeter, United Kingdom. He is the Director of the Exeter Research Programme in International Law and Military Operations and a Fellow of the Allied Rapid Reaction Corps. His work focuses mainly on questions of military and operational law, including the legal status of foreign armed forces under international law. Noëlle Quénivet is an Associate Professor in International Law at the University of the West of England (UWE), United Kingdom. She is the co-editor of International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, Brill 2008. Dr Sari and Dr Quénivet are collaborating on a research project funded by the British Academy examining the challenges posed by international human rights law and their impact on military operations.