British troops can’t win if human rights law replaces Geneva Conventions on the battlefield

Report calls for Britain to suspend the ECHR during periods of future conflicts – and for the Geneva Conventions to be the standard that guides the UK military in combat situations

Policy Exchange paper says judges now threaten the fighting capacity of Britain’s armed forces – not least because enemy combatants have been granted the right to sue the Government for breaching their human rights

Misguided human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets on a Saturday night in the West End, according to a new report by think tank Policy Exchange.

The paper, authored by Professor Richard Ekins (University of Oxford), Dr Jonathan Morgan (University of Cambridge) and Tom Tugendhat (a former Military Assistant to the Chief of the Defence, Staff General Sir David Richards), reaffirms that armed forces on the battlefield should not be above the law but that the rules governing conflict must fall under the Geneva Conventions rather than the European Convention on Human Rights (ECHR). It argues that a blanket derogation from the ECHR is essential in all future conflicts involving British military personnel.

The report argues that the “judicialisation of war” has markedly increased since the introduction of the Human Rights Act in 1998. By the end of March 2015, 1,230 public law claims are expected to have been filed against the Ministry of Defence in relation to British military action in Iraq. This is in addition to a further 1,000 private law claims.

The authors point to two specific areas of what they term “judicial imperialism”:

  1. The application of the ECHR to British forces deployed on combat operations in foreign countries
  2. The importation of civilian laws  of negligence into fast moving combat situations

The report says that neither of these developments is properly supported by sound legal evidence, and that the expansion of “lawfare” hinders the ability of commanders on the ground to make immediate and potentially life or death decisions.

It highlights a number of court cases brought against the Government:

  • Only this month, in Al Saadoon & Others v Secretary of State for Defence, the High Court made clear that the ECHR applies wherever and whenever a British soldier employs force: shooting an individual is now enough to bring that foreign national into the jurisdiction of the UK under the terms of Article 1 of the ECHR.   So foreign nationals, including enemy combatants, may now sue Britain for breach of the ECHR – both in domestic courts by virtue of the Human Rights Act and in Strasbourg.
  • This followed the earlier Strasbourg case of Al Skeini v UK (2011), which extended the reach of the ECHR to British troops fighting in Iraq – a foreign country which is not a signatory to that Convention. The High Court’s decision in Serdar Mohammedfurther stretched the ECHR’s reach to Afghanistan.
  • The Smith v Mod case (2013) concerned two separate sets of claims by relatives of British soldiers killed in action in Iraq, and was the tipping point in the expansion of human rights laws into the military space. The UK Supreme Court established for the first time that soldiers injured in battle or the families of those killed in action may sue the Government for negligence in tort law – and for breach of the “Right to Life” under Article 2 of the European Convention on Human Rights (ECHR).

The paper makes a number of recommendations including:

  1. Reinstating the primacy of the Geneva Conventions in armed combat by derogating from the ECHR during conflict. Under the Geneva Conventions it is permissible to use lethal force as a matter of first resort against enemy combatants. By contrast the ECHR allows lethal force to be used only in exceptional circumstances as a last resort.
  2. Reinstating combat immunity to prevent claims of negligence being brought against the Government . Negligence as a concept has no place on the battlefield as it leads to a ‘safety first’ approach by commanders on the ground. All injured personnel should be paid compensation in full on a no-fault basis. The money would go to injured soldiers and their families rather than to personal injury lawyers and the public costs of trial.

Tom Tugendhat, co-author of the report, said:

“It is ludicrous that European and British courts now expect our forces to operate in violent combat conditions according to a system more suited to the regulation of police powers on a Saturday night in the West End of London.

“The European Convention of Human Rights was designed for the stable conditions of peaceful, post war Europe. Its application to our armed forces deployed in conflicts around the world puts their lives at risk. Commanders on the ground cannot make decisions in the heat of the battle with one eye on the possibility of retrospective legal action.

“In wars fought against enemies, especially non-state forces who do not even abide by universally binding international laws, it would be irresponsible that the UK puts further legal restraints on its own armed forces. It would be unwise for Parliament to impose such further restraints; it is intolerable for the judiciary to do so.”

Dr Jonathan Morgan said:

“Our armed forces should certainly not be above the law. That is why the Geneva Conventions should apply when they are on active operations. Human rights law simply has no place on the battlefield.

“If war is too important to be left to the generals, then surely it is too important to be left to the judges.”


For a full copy of the report contact Nick Faith on 07960 996 233

About the authors

Richard Ekins

Professor Richard Ekins is Associate Professor of Law in the University of Oxford and a Fellow of St John’s College, Oxford; he also holds a fractional appointment at the TC Beirne School of Law in the University of Queensland.

Jonathan Morgan

Dr Jonathan Morgan is Fellow, Director of Studies and University Lecturer in Law at Corpus Christi College, Cambridge. He was educated at Oxford before writing his PhD thesis at Cambridge; he has held lectureships at both universities.

Tom Tugendhat

Tom Tugendhat is a Territorial Army officer. His most recent period of active service was as Military Assistant to the Chief of the Defence Staff, General Sir David Richards. Previously, he served operationally in Afghanistan and Iraq, rising to the rank of Lieutenant colonel. He was also a diplomat, serving as the adviser to Afghanistan’s National Security Adviser and later to the Governor of Helmand province, during the period when British forces arrived in Southern Afghanistan (2006). He was awarded the MBE (Military) for his efforts on operations. He is Conservative candidate for Tonbridge and Malling.

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