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Dr Jonathan Morgan from the University of Cambridge offers the following response:                                                                                          

Derogation in wartime                                                                                          

The government’s proposal to derogate from the European Convention on Human Rights (ECHR) in future armed conflicts is controversial. As the author (with Richard Ekins and Tom Tugendhat) of a 2015 Policy Exchange report advocating ECHR derogation, I want to respond to a thoughtful article published in The Times on 13 October 2016 in which Lord Pannick QC argues that the Government’s proposal does not “withstand legal analysis”.  There is much in Lord Pannick’s article with which I agree, but he overstates his case in suggesting that derogation cannot withstand legal scrutiny. He also overlooks the alternatives should the courts seek to undermine the effectiveness of any derogation.

The Problem

Lord Pannick refers to some of the difficulties that result from the Strasbourg Court’s “unexplained” decision in Al Skeini v UK  in 2011 which expanded the ECHR’s territorial application to British troops fighting in Iraq. Lord Pannick concedes that there are both “legal and practical difficulties” in extending a Convention designed to regulate the domestic exercise of state power into a battlefield overseas. He also quotes the polite but pointed criticisms by senior English judges of this extension in the Court of Appeal’s decisions in Serdar Mohammed and Al-Saadoon. Those judicial criticisms are well founded. The extension of the ECHR creates a complex and uncertain overlap with International Humanitarian Law (the Law of Armed Conflict) centred on the Geneva Conventions.

But the thrust of Lord Pannick’s argument is that the legal effect of derogation will be uncertain given that the Strasbourg Court could decide the derogation’s validity. What Lord Pannick does not do is to suggest any other solution to the political and legal problems that flow from Al Skeini and subsequent case law.

Derogation is to some extent admittedly only a second-best solution to those problems.  But first-best solutions seem either impracticable or would (I predict) be unacceptable to those now critical of the government’s derogation policy So given the problem, what is to be done?  A number of possibilities exist.  In escalating order they are: litigation; derogation; amendment of or withdrawal from the ECHR.

Litigation

There are two groups of issues being contested by the Government: the extraterrtitorial application of the ECHR; and the relationship between Convention rights and International Humanitarian Law.) The government has consistently argued for the inapplicability or modification of the ECHR throughout the very extensive litigation about the Iraq (and now Afghan) conflicts.  It will continue to do so, including (importantly) in the Serdar Mohammed and Al-Saadoon cases when they reach the UK Supreme Court.  This is admirable.  Yet one would have to be preternaturally sanguine to assume with confidence that the government’s arguments will prevail.  The record is not encouraging.  As Lord Pannick observes, it was a decision against the British government in Strasbourg that sparked off the current difficulties.  While it is possible that the British courts could yet circumvent Al-Skeini, and/or ensure that priority is given to International Humanitarian Law, outright defiance of Strasbourg jurisprudence by the domestic judiciary is perhaps unlikely.  A change of heart by the judges of the European Court seems unlikely too.  It could be said that given the erratic record of the Strasbourg Court, anything is possible.  But in all, while the government can and should continue to argue its case strongly in the ongoing judicial proceedings, there is only so far this can take it given the Strasbourg Court’s unpredictable approach to interpreting the ECHR.

Derogation

It is no doubt awareness of the limits of this “litigation strategy” that has led the government to consider derogation from the ECHR as its response.

Derogation is a mechanism provided by Article 15 of the ECHR.  As Lord Pannick points out, there are limits on its use.  Some rights in the ECHR are non-derogable; namely, the right to be free from torture, from forced labour, from punishment without legal process, and the right to life (“except in respect of deaths resulting from lawful acts of war”).    This doesn’t make derogation pointless.  It would help restore the relevant legal standard for considering breaches of the right to life in relation to war.  It would also suspend Article 5 rights to liberty that have been used to undermine detention of combatants.  Derogation cannot end human rights law claims altogether, but it would limit them.

Lord Pannick is also correct to observe that there are conditions for derogating—namely that there must be a state of war (“or other public emergency threatening the life of the nation”) and the derogation is “strictly required by the exigencies of the situation”. He points out that strong evidence would be needed to satisfy the latter, “strict” requirement.  He thinks this “very unlikely”, and states that concerns based on the Strasbourg Court’s jurisprudence “could [not] possibly satisfy that criterion”.  But this analysis ignores the practical problems caused when the armed forces, actively engaging with a hostile enemy, are expected to comply with peacetime-derived human rights norms in addition to the Geneva Conventions and associated International Humanitarian Law.   The latter body of law is designed to balance military necessity and humanity.  It should remain the controlling body of law and derogation will help make it so.

But of course Lord Pannick is right that whether derogation from the ECHR is “strictly required” would be challenged in the courts.  The judges’ answer is not easy to predict in advance.  The government might rule out challenge in the domestic courts, by way of legislation, but in the end the Strasbourg Court would rule on such.  And it might well reject any attempt to use Art 15 to roll back its controversial extension of the ECHR.

More drastic action?

The final question then is—if not derogation, then what?

If one is concerned about the practical impact of the extension of the ECHR, and yet is persuaded by Lord Pannick’s doubts whether derogation will survive judicial scrutiny, then more radical surgery may be required.  The Human Rights Act 1998 could be amended to expressly limit its extra-territorial application.  Of course this might still bring condemnation of the UK from the European Court in Strasbourg.  The only way to avoid that would be to amend the Convention to avoid its extraterritorial application.  But such amendment of the ECHR would be practically impossible, given the need to convince all members of the Council of Europe of its wisdom.  The only thing that the British government can do unilaterally, if the derogation route fails, is to defy the ECtHR (as it arguably has in relation to prisoner voting), or to leave the ECHR altogether.  Leaving the entire system would certainly survive “legal scrutiny” although, as hardly needs to be laboured, there would be political and diplomatic implications.

For those who would rather avoid such radical changes, support of the government’s more modest policy of derogation seems the prudent course.  Should Strasbourg preserve the wartime extension of the ECHR even after such a derogation, the government would be driven to consider more drastic responses. Should the UK government finally secure rulings in its favour on the extraterritorial application of the ECHR, and the Convention’s relationship with International Humanitarian Law, this too would head off the pressure for drastic responses, and largely remove the need for derogation.

Lord David Pannick’s ‘Opting out of human rights law during war will make no difference’, was published in The Times on 13 Oct 2016:

Opting out of human rights law during war will make no difference

Policies announced at party conferences often contain much sound and fury, but signify nothing that can withstand legal analysis. So it is with the policy announced at the Conservative conference last week to derogate from the European Convention on Human Rights — that is, make it non-applicable — in relation to claims of alleged human rights abuses by members of the armed forces in time of war.

The prime minister, Theresa May, told the conference on October 5 that “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”.

A little more detail was given the day before by the secretary of state for defence, Sir Michael Fallon. He told the conference that “much of the litigation we face comes from the extension of the convention to the battlefield”. This is “damaging our troops, undermining military operations and costing taxpayers millions”. So, he announced, “in future conflicts we intend to derogate from the convention”. That will “protect our armed forces from many of the industrial-scale claims we have seen post Iraq and Afghanistan”.

In 2011, the European Court of Human Rights expanded the territorial scope of the convention. Without explaining why or how it was departing from earlier judgments, it recognised that the convention applies to the conduct of British armed forces in Iraq where they had physical control over an individual, even though they had no sovereignty or effective control over the area in question.

The Court of Appeal (Lord Thomas of Cwmgiedd, the lord chief justice, Lord Justice Lloyd Jones and Lord Justice Beatson) pointed out the difficulties in its judgment in the Serdar Mohammed case in July 2015. The convention is “designed to regulate the domestic exercise of state power”. It causes legal and practical difficulties to apply it “in the very different context of extra-territorial military operations”, particularly where our armed forces are acting at the request of the lawful government of the host state. The relationship between the convention and international humanitarian law is also “a matter of great complexity and uncertainty”.

Lord Justice Lloyd Jones added in his judgment for the Court of Appeal in the Al-Saadoon case last month that the law governing whether, and if so in what circumstances, the convention applies to the conduct of British forces in Iraq “remains highly controversial”. Understanding the principles stated by the European Court “is not an easy task”.

The problem with the derogation announced by the prime minister last week is that it will make very little, if any, contribution to addressing the difficulties. Indeed it is likely only to increase the legal uncertainties.

Article 15 of the convention allows for a derogation only “in time of war or other public emergency threatening the life of the nation”. It is not enough that there are military activities to prevent terrorism in or from other countries. Even if there is a war, Article 15 adds that a derogation would be valid only “to the extent strictly required by the exigencies of the situation”. I do not see how a derogation based on the reasoning of the prime minister, or concern about the jurisprudence of the European Court, could possibly satisfy that criterion. Strong evidence would be required to show that the application of the convention would impair the United Kingdom’s ability to achieve its military aims during a war. That seems very unlikely.

In any event, Article 15 does not allow for any derogation from Article 2 (the right to life), “except in respect of deaths resulting from lawful acts of war”. So if an allegation were to be made that British troops deliberately killed civilians during a war, the derogation would not apply. Article 15 adds that the derogation does not apply to allegations of torture, or degrading or inhuman treatment, contrary to Article 3. So a derogation would not be able to prevent such human rights claims even in time of war.

What appears to have prompted the prime minister’s announcement is the work of the Iraq Historic Allegations Team established by the government in November 2010 to investigate allegations of serious criminal offences by British soldiers, in particular the murder of Iraqi civilians. Many of the complaints were spurious. But some of them have been considered worthy of serious consideration. A derogation under Article 15 would be irrelevant to all this. It concerns human rights law. It does not affect the criminal law which, by reason of the Armed Forces Act 2006, applies to the conduct of British soldiers throughout the world.

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