Combatting the judicialisation of war
The Government has made a real start in this area – pledging to derogate from the European Convention on Human Rights in advance of future conflicts and closing down the Iraq Historical Allegations Team. What should the next phase of action be?
The new Government has a great opportunity to continue reversing the judicialisation of war, to protect the integrity and efficacy of the armed forces from unjustified legal challenge.
Part of the legacy of British military action in Afghanistan and Iraq has been (i) an explosion of litigation in the English and European courts, alleging that the Government has committed civil wrongs or breached human rights law, and (ii) a large number of inquiries into alleged wrongdoing on the part of individual soldiers. These developments threaten the armed forces by treating soldiers unfairly, undercutting morale, and imposing unclear and inapt legal standards on future military action.
The foundation of this trend is the decision of the European Court of Human Rights (ECtHR) that European human rights law applies to military action outside the UK, indeed outside the territory of the Council of Europe. Like other signatories to the ECHR, the UK has undertaken to secure the convention rights of all persons within its “jurisdiction”. At the time the UK undertook military action in Iraq it was clear that “jurisdiction” was primarily territorial. There were some limited exceptions, but the basic idea was that the ECHR only applied within the state’s territory. However, in 2011, the ECtHR abandoned this long-settled understanding and instead asserted a new interpretation that turned not primarily on territory but on vague ideas about control, public power, and the use of force.
Thus, the Strasbourg Court retrospectively extended the reach of the ECHR so that it applied to British military action abroad. In a series of cases, the ECtHR has held the UK to have breached Article 2 (the right to life) and Article 5 (liberty and security of the person). The use of lethal force and the detention of combatants have thus been condemned, after the fact, for failure to conform to human rights law that obtains in peacetime Europe. In future conflicts, the armed forces face the prospect of being limited by these standards rather than by International Humanitarian Law (the Law of Armed Conflict), which is the body of law specifically designed to balance military efficiency and humanitarian considerations.
The Human Rights Act 1998 (HRA) incorporates the ECHR into domestic law, requiring British courts to adjudicate the merits of military action abroad and to do so by way of legal standards that are simply inapt. Some senior British judges have lamented this trend but are not well placed to resist it. The Government and Parliament must act to restore International Humanitarian Law (IHL), taken together with the Services Acts in domestic law, as the body of law that governs military action. The Government should clearly affirm the primacy of IHL, denying the legitimacy of subjecting military action abroad to European human rights law and acting to limit its exposure to legal challenge on these grounds.
Parliament might amend the HRA to limit its extra-territorial application. This would rule out further litigation in the English courts but would risk challenges being taken directly to Strasbourg. The answer to this risk is, first, to exercise Article 15 of the ECHR and to derogate from convention rights in time of war. The next Government should commit to a clear policy of derogation in advance of any future conflict and Parliament should consider legislating to immunise any such derogation from judicial review. The second answer is to stand ready to defy adverse judgments of the ECtHR. This would be principled defiance, refusing to conform to the Court’s misinterpretation of “jurisdiction” and following the trail blazed in relation to the ECtHR’s dubious prisoner voting judgments.
The armed forces are increasingly subject to challenge not only by way of European human rights law but also by way of the ordinary law of negligence or tort. A majority of the Supreme Court has effectively undercut combat immunity, enabling litigation in civilian courts in relation to how and why British soldiers were killed in action. This is an inefficient means to compensate the families of the fallen and will inevitably distort the planning and conduct of operations, hamstringing commanders and undercutting military effectiveness. The next Government should reverse this extension of negligence liability by exercising its existing powers under the Crown Proceedings (Armed Force) Act 1987. Any such change should be paired with introduction of a no-fault compensation scheme for injured or death on active duty. The point is to prevent the judicialisation of war, and thus to safeguard morale and military effectiveness, not to minimise compensation.
The military is increasingly subject to unsound legal standards and exposed to challenge in domestic and European courts. The defence of the realm and justice for service personnel should encourage the next Government to act boldly to change this state of affairs.
Richard Ekins, Head of the Judicial Power Project and co-author, Clearing the Fog of Law