Armed Forces: Legal Challenges and Derogation from the European Convention on Human Rights
On 24 November 2016, the House of Lords will debate the case for limiting the number and nature of claims against the Ministry of Defence (MoD) and UK armed services personnel arising out of future armed conflict abroad. On 4 October 2016, the Government announced that it would introduce a presumption to derogate from the European Convention on Human Rights (ECHR) in future conflicts in order to protect the armed forces from “persistent legal claims”. This briefing will focus on the Government’s recent proposals to derogate from the ECHR. It provides an overview of the legal framework for military operations, summarises some of the key legal claims that have been made against the armed forces, and outlines the work of the Iraq Historic Investigations Team (IHAT).
International Humanitarian Law (IHL) is based on a large number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols, and a series of other conventions and protocols covering specific aspects of the law of armed conflict. It was developed to regulate the conduct of parties in regards to armed conflict. In the UK, standards of military behaviour are also regulated by domestic rules and legislation, namely, the Armed Forces Act 2006, which created a single disciplinary system governing all members of the armed forces.
Over the last decade, an increasing number of legal proceedings have been brought against the armed forces and the MoD, which relate to the conduct of military personnel on operation overseas. As a result, there have been a number of court judgments, made in both the UK courts and the European Court of Human Rights, relating to the application of the ECHR to cases concerning foreign nationals killed or detained by UK armed forces deployed abroad, and servicemen killed while on military operation. The rulings in these cases have raised questions as to the primary source of legal authority: whether it was IHL or human rights law. In 2010, in response to the increasing number of legal claims, the then Labour Government established IHAT to sift through new allegations, and refer those deemed credible to the relevant authority for prosecution. IHAT reviews and investigates allegations of abuse of civilians by UK armed forces personnel in Iraq during the period 2003–09. IHAT has been subject to criticism for delays in completing in its work. Its initial date for completion was 2012, but it is now 2019. In April 2016, Sir David Calvert-Smith was commissioned to review its processes.
The Conservative party’s 2015 general election manifesto made a commitment to ensure that the armed forces were not “subject to persistent human rights claims”. In December 2015, the Secretary of State for Defence, Michael Fallon, was reported as stating that there was a “strong case” for suspending the ECHR when sending forces on operation overseas. In the Government’s announcement in October 2016, the Prime Minister, Theresa May, stated that the Government intended to “put an end to the industry of vexatious claims” which was “undermining the operational effectiveness of the armed forces”.