Richard Ekins’ ‘What the Strasbourg Court has wrought – and what to do about it‘, first published on the Reaction site on 23 September 2016. Professor Ekins is co-author of the Policy Exchange report Clearing the Fog of Law.


For anyone wondering whether reform of the Human Rights Act still matters, the controversy about its application to military action in Iraq and Afghanistan should be illuminating.

Thousands of lawsuits are underway against the Ministry of Defence in relation to alleged wrongdoing by the British military.  Hundreds of investigations are underway into the actions of individual soldiers, investigations that the Government is required to undertake because of the way the courts have understood the European Convention on Human Rights (ECHR).

Quite apart from the ECHR, British soldiers are subject to the law of armed conflict.  And rightly so – this is the body of law designed to integrate military practicality with humanitarian concerns. But until very recently, no one thought that while on active operations outside the UK (and outside Europe) soldiers’ actions were – or should be – subject to European human rights law as well.

How has this change come about?

Art 1 of the ECHR requires the UK to secure the Convention Rights of everyone within its “jurisdiction”.  For many years, the European Court of Human Rights – the Strasbourg Court – interpreted this term in its original, narrow sense, to mean within the member state’s territory, with some very limited exceptions.

The Human Rights Act partly incorporates the ECHR into British law and makes the Government legally liable if it breaches Convention Rights.  In 2007, Britain’s highest court had to decide whether to entertain the argument that military action in Iraq breached the Human Rights Act.

In other words, did the Act place the Government under a legal duty to conform to the ECHR in Iraq (or Afghanistan or anywhere else outside the UK)?

The leading judge of his generation, Lord Bingham, concluded that the Human Rights Act did not have any extra-territorial effect.  He thought it would be very surprising for Parliament to have intended as much, not least because it would give rise to very real practical difficulties if it had.  The other judges shared his practical concerns.  However, they concluded that the Act was intended to track the way that “jurisdiction” had long been understood by the Strasbourg Court , which meant that in practice the Act had only very limited extra-territorial effect.

But in 2011, in an arbitrary change of doctrine for which it is notorious, the Strasbourg Court sharply expanded the idea of “jurisdiction”.  This opened the door to the retrospective application of the ECHR to British military action in Iraq.  Thousands of legal actions have followed.

Apart from the lawless way in which this new legal regime was introduced, why is it a problem?

There are several reasons.  Art 2 of the ECHR limits the use of lethal force to that which is strictly necessary to save someone else.   This makes perfect sense for police officers, but much less sense for soldiers in war time, where the law of armed conflict provides that one is free to kill enemy combatants (unless they have surrendered).

So the relevant standard is problematic when applied to armed conflict – as the International Committee of the Red Cross has noted.  The same is true for Art 5, which limits deprivation of liberty.  When applied to military action in Iraq and Afghanistan (or elsewhere), this provision wrongly limits the ordinary freedom, under the law of armed conflict, that the army has to detain the enemy as prisoners of war.

Further, the Strasbourg Court has interpreted Art 2 creatively to impose an obligation on the Government to hold an independent investigation into any deaths caused by the state.  Art 2 itself fails to mention any such obligation and while this new rule might be good public policy (in peacetime Britain) it is not for the Court to impose.

More importantly, the obligation goes well beyond what the Geneva Conventions require.  Certainly, any soldier who commits war crimes (or any service offence) should be prosecuted.  But it doesn’t follow that every lethal use of force during military action should be investigated as it would be in peacetime conditions.  The practical difficulties of gathering evidence are very real, as British judges have noted, and the impact on soldier morale and on effective fighting capacity is real too.

None of this is to say that particular wrongs should not be punished.  But requiring investigations on this scale and in this way is damaging.

What is to be done?  In future hostilities, the Government could exercise Art 15 and derogate from the ECHR, which would at least limit its application.  This is only a partial fix and it is vulnerable to legal challenge, in British courts and in Strasbourg.  And it won’t stop the thousands of lawsuits now underway or the hundreds of investigations.

It is possible British courts will come to the rescue.  In a recent judgment, the Court of Appeal attempted to narrow the scope of the idea of “jurisdiction”, not so as to wind back the Strasbourg Court’s misinterpretation altogether, but at least to confine it.  And the Supreme Court may soon hear argument to challenge that misinterpretation more generally.

It would be a bold Supreme Court that defied Strasbourg so directly.  But it is possible.

Another possibility, which lies in the hands of Government and Parliament, is to cut off the ground of legal challenge in the British courts, amending the Human Rights Act (or replacing it with a British Bill of Rights) to restore its limited territorial reach.  If the change were made retrospective, this would bring the litigation to a halt.

If either the Supreme Court or Parliament challenge Strasbourg in this way then inevitably there will be more litigation alleging that the UK is in breach of the ECHR.  The principled answer would be to say that British institutions are restoring the rule of law, not undermining it, and that the UK is not willing to conform to the Strasbourg Court’s flagrant and lawless misinterpretation of the ECHR.