Why human rights law is not a threat to the British armed forces

British soldiers on the outskirts of Basra in 2007. Cathal McNaughton / PA Archive

In recent weeks, a number of public figures, including Prime Minister Theresa May and one of her predecessors, Tony Blair, have criticised the application of international human rights law to the British armed forces. This was sparked by the work of the Iraq Historical Allegations Team (IHAT), which was established to review and investigate allegations that UK armed forces abused Iraqi civilians in the period 2003-2009.

In response, the defence secretary, Michael Fallon, announced at the Conservative Party conference that the government intends to “derogate” – or suspend – some of the armed forces’ obligations under the European Convention on Human Rights during future armed conflicts.

Much of this appears to be based on a misconception that the application of human rights law is a threat to the proper functioning of the armed forces. The reality is, however, that human rights law not only remains applicable during wartime, but it is also able to take account of the particular circumstances of armed conflict and so is not a threat to the military.

How derogations work

Derogations of the sort the government has announced are an accepted feature of human rights law. They allow certain rights to be modified – but not negated – to facilitate their application in times of emergency or war. A good example is internment, the detention of individuals who pose a future security threat. In normal circumstances, internment is not permissible under the European Convention on Human Rights – but if internment is necessary it will be permitted on the basis of a valid derogation. For example, the UK lawfully derogated from the convention to allow interment in Northern Ireland during The Troubles.

While some rights may be modified in times of emergency or war, international human rights law makes clear that certain rights, such as the prohibition of torture, can never be derogated from, as torture can never be justified.

By announcing it will seek to pursue a derogation in future conflicts, May’s government appears to accept that, in principle, the European convention continues to apply to UK forces during armed conflict, albeit with certain rights modified. This means that the activities of UK forces will remain subject to the supervision of the European Court of Human Rights.

Michael Fallon: protect UK troops from ‘vexatious’ legal claims. Hadi Mizban/EPA

Human rights don’t ‘stop at the border’

The majority of commentators who have criticised the historical Iraq investigations do not seem to be calling for immunity from war crimes. No self-respecting army officer would say that soldiers are above the law; rather the British armed forces are interested in ensuring that they do not get branded as war criminals. So there is wide agreement on all sides that some form of investigation must take place when a war crime is suspected.

Instead, the debate has arisen due to what appears to be the unprecedented scale and scope of investigations, and the perception that soldiers are being held to an impracticable high-standard as a result of applying human rights law to the battlefield.

Critics therefore argue that human rights law should not apply to military operations abroad. But it is already widely accepted by international and UK courts that human rights law does not apply just to state agents operating within the UK, and so does not “stop at the border”.

Imagine a situation in which a state sends police forces across the border to summarily execute someone: without allowing for extra-territorial human rights obligations, such actions would remain without an appropriate legal course of redress for those affected. As noted by the UN Human Rights Committee back in the early 1980s: “It would be unconscionable” not to hold that state responsible for violations “on the territory of another state, which … it could not perpetrate on its own territory.”

What happens during armed conflict

A second strand of criticism is that in war situations, human rights law (such as the European Convention on Human Rights) should give way to the law of armed conflict (such as the Geneva Conventions). Here too, international bodies have repeatedly affirmed that human rights law does, in principle, continue to apply during wartime. Yet this does not mean that states are subject to the same human rights obligations in war as in peace: both the continued application of the law of armed conflict, and the factual circumstances of war, can modify the extent of the armed forces’ human rights obligations. This includes the possibility of lawful derogations if necessary.

Human rights law is flexible and realistic. For example, if a suspicious death occurs, human rights law requires the state to investigate. But, as the European Court has acknowledged, this obligation will be very different for police in Manchester or soldiers in Basra, where the security situation may affect the ability to investigate.

Ultimately, the proper co-application of human rights law and the law of armed conflict will not frustrate military operations, and would not prevent, for example, the killing of an enemy soldier during battlefield hostilities. Although the right to life continues to apply, it is interpreted differently in times of war. Unlawful killing will remain prohibited, but during hostilities a violation of the human right to life will usually be found only in relation to conduct that violates the law of armed conflict.

However, the further away one moves from the battlefield, and outside of active hostilities and certain detention frameworks, the co-application of the two types of law will lean closer to a human rights law standard, in line with the level of control exerted by the armed forces.

This means that the recent criticisms have directed fire at the wrong target. Properly interpreted, and with appropriate use of lawful derogations, human rights law does not place an undue burden on the armed forces. Nor does it undermine their ability to effectively conduct military operations. And even if human rights law did not apply, there would still be wide agreement that the actions of armed forces must be subjected to scrutiny, and that rogue and unlawful behaviour must be addressed. This can only be achieved when effective investigations take place.

Investigations of suspected breaches of law are necessary not only for securing the rights of affected individuals, but also for the interests of the military itself. By ensuring accountability where necessary, by disproving baseless allegations, and by demonstrating a commitment to the rule of law, the armed forces publicly demonstrate their integrity and professionalism – and ensure the public’s trust.