General Election 2017 and the Conservatives’ Plans to Derogate from the ECHR for British Armed Forces Overseas

 

ECtHR

The European Court of Human Rights

Since Theresa May’s decision to call a snap General Election, there has been speculation as to whether the Conservative Party’s manifesto will contain a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a British Bill of Rights. What we are less likely to see is a commitment Theresa May’s preferred course of action on human rights—complete withdrawal from the European Convention on Human Rights (ECHR).

That stated, the Tory Party’s manifesto may contain a proposal that could set up an inevitable showdown with the European Court of Human Rights (ECtHR): a plan to provide for a ‘presumption to derogate from the ECHR for UK armed forces overseas.’ The Joint Committee on Human Rights (JCHR) was in the process of an inquiry into the legality of these proposals; however, this will come to a halt before any recommendations will be made due to the snap General Election. My full submission to the Inquiry is available here. For the present purposes, I want to highlight my key concern as to why the proposals are not compatible with the ECHR and why this may be setting the stage for a full scale withdrawal from the Convention and the jurisdiction of the ECtHR.   

Key problems with the plan: Threatening the life of the Nation

My main concern with the plan is that the overseas armed conflicts that the UK will be engaged in will not amount to a state of emergency under the meaning of Article 15 ECHR. Article 15.1 ECHR states as follows:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

The key requirement in Article 15 therefore is that there must exist  ‘a war or other public emergency threatening the life of the nation’. While the ECtHR has been incredibly deferential on this question and has never, to date, found that an emergency did not exist in a state that had declared one, the case law on this question  concerns declared emergencies within the Contracting Party’s territory. They do not refer to derogations made in an extra-territorial context. Indeed, no state has ever derogated from a human rights treaty in an extra-territorial setting. These overseas armed conflicts or military operations that the UK armed forces are engaged in must ‘threaten the life of the nation’. On this issue, Lord Bingham in R(Al-Jedda) v Secretary of State for Defence remarked that:

It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.

While the ECtHR does not object in principle to extra-territorial derogations, it is difficult therefore to see how conflicts in Afghanistan, Iraq, Libya or Syria could threaten the life of the UK nation. An argument could be made that overseas deployment of British armed forces is in fact necessary to protect the life of the nation; for example, a key justification for the UK’s invasion of Iraq was on the grounds that Saddam Hussein posed an imminent threat to the UK. Such claims would, however, be reviewable by the ECtHR. In light of the experience of the Iraq War, one would hope that a more critical approach to the Government’s claim as to possessing special intelligence pertaining to national security would be taken by the ECtHR.

Lord Bingham further highlighted in Al-Jedda that as the state voluntarily embarked on an overseas military operation from which it could withdraw [the Iraq War], the voluntary nature of such a conflict could not be considered to amount to a ‘threat to the life of the nation’. This reasoning has been criticised by Professor Marko Milanovic, on the grounds that ‘Ireland and the UK could also have given in to the IRA’s demands and thus had averted or mitigate the public emergency. And so could any other state that derogated due to an internal problem.’ Milanovic’s criticism of Lord Bingham’s judgment, however, depreciates the concept of ‘necessity’ in Article 15 and states of emergency more generally.  Although the word ‘necessary’ is not expressly mentioned in Article 15, ‘necessity’ is a fundamental concept that justifies provisions for declaring a state of emergency in international human rights treaties and constitutions. Derogations under Article 15 must be ‘necessary’ in the sense that they must ‘protect the life of the nation’ rather than being necessary in order to permit the government to undertake the steps they wish to take. Necessity does not mean that the government has ‘no choice’; rather it means that there is such a constraint in choice due to the duress of circumstances that the Government experiences that it has to choose between ‘the lesser of two evils’. Hence, it must sacrifice its ordinary commitment to human rights in order to prevent the greater evil— the threat to the life of the nation— from coming to fruition. The concept of necessity therefore conveys a degree of objectivity in the choice that the Government is taking; however, there will, invariably, be subjective factors at play to determine the best course of action to take. Nevertheless, the degree of objectivity regarding the existence of a state of emergency is often reflected in the fact that there is a convergence of opinion between the Government and opposition in times of crisis that an emergency exits. In contrast, it is difficult to see how such a degree of objectivity could be gleaned from recent decisions to deploy UK armed forces overseas, for example in Iraq and recently to undertake military operations in Syria. Both decisions followed divisive parliamentary debates and in the case of the former, mass public opposition to the decision.

Separating ‘war’ from ‘other public emergency threatening the life of the nation’?

An alternative approach may be for the UK to argue that as Article 15 allows for derogations ‘in time of war or other public emergency threatening the life of the nation’, only the latter of these two conditions—‘public emergency’— needs to ‘threaten the life of the nation.’ According to this argument, any war, regardless of whether it threatens the life of the nation, would result in conditions under which a state could lawfully derogate from the Convention.

There are a number of difficulties with this argument, however. To date, the ECtHR has not been required to pronounce upon the meaning of ‘war’ under Article 15.  Moreover, the UK does not generally declare war in the deployment of armed forces overseas. Indeed, the very phrase ‘war’ is problematic given that it has fallen out of use in international law with the terms ‘international armed conflict’ or ‘non-international armed conflict’ being preferred. War therefore is a somewhat archaic term. Milanovic thus argues that ‘war’ in Article 15 could be subject to three separate interpretations:

  1. As a reference to the technical legal concept of ‘war’ as it existed in classical international law;
  2. As a reference to the modern concept of international armed conflict, which is like ‘war’ inter-state in nature but is objective and factual, and was indeed meant as a replacement for ‘war,’ with perhaps the addition of belligerent occupation as a sub-species of international armed conflict ;
  3. As a reference to any type of armed conflict regulated by contemporary IHL, thus including both international and non-international armed conflict as well as occupation and possibly any third type of armed conflict if it ever evolves through custom or is created by treaty.

As there is no guidance from the case law on this issue, any of the three interpretations may be followed. If interpretation (c) were followed, separating ‘war’ from ‘public emergency threatening the life of the nation’ could, for example, legitimate derogations from the Convention in international and non-international armed conflicts that did not ‘threaten the life of the nation’. It would merely be for the Court to assess whether such an international or non-international armed conflict did exist. Again, this argument has not been litigated before the Court; however, the Council of Europe’s own guide to Article 15 conceptualises war at the upper end of the scale of what constitutes a state of emergency with ‘any substantial violence or unrest short of war…likely to fall within the scope of the second limb or Article 15.1, a “public emergency threatening the life of the nation.”’ This interpretation is in line with other international human rights treaties.

Under this understanding of Article 15, a ‘war’ or armed conflict can only justify a derogation under Article 15 if it ‘threatened the life of the nation’. To parse ‘war’ from ‘public emergency threatening the life of the nation’ would be a fundamental misinterpretation of Article 15. ‘War’ is not just an illustrative example of a public emergency threatening the life of the nation; it is a ‘core’ or paradigmatic example of this. The phrase ‘Public emergency threatening the life of the nation’ subsequently expands Article 15 to conditions falling short of this. To interpret war as amounting to a phenomenon that does not amount to a ‘threat to the life of the nation’ is to flip Article 15 on its head, making war the term in Article 15 that expands its application and the phrase ‘public emergency threatening the life of the nation’ the limiting aspect of Article 15. Consequently, ‘war’ under Article 15 must be considered a ‘core’ example of a phenomenon that can amount to a ‘public emergency threatening the life of the nation’. Thus if the actions of British armed forces overseas are not engaged in an armed conflict that ‘threatens the life of the nation,’ then the state cannot lawfully derogate under Article 15.

‘The nation’

A further argument may be to interpret ‘the nation’ to mean not the UK but rather the state or community in which the armed conflict is taking place. Again, there is no case law on this issue and it would be difficult to reconcile this argument with principles laid down by the ECtHR in Lawless v Ireland that an emergency must affect ‘the whole population and constitutes a threat to the organised life of the community of which the state is composed.’ It would also be difficult to reconcile with the statement of the European Commission of Human Rights in The Greek Case that an emergency should ‘involve the whole nation’.

It may be argued that the own ECtHR’s jurisprudence on this issue may itself be irreconcilable with these statements. For example, that the IRA only posed a threat to Northern Ireland as distinct from the UK as a whole, or that Turkish derogations regarding the PKK and Kurdish political violence related to specific areas in Turkey in which there is a substantial Kurdish population. Although these emergencies may be conceptualised as ‘local’, in actuality, they affected the territorial integrity of the entire state. This point was acknowledged by Lord Hoffmann in the Belmarsh Case who believed that al Qaeda did not threaten the life of the UK nation although the IRA did. Moreover, the conflict in Northern Ireland did have a ‘spill-over’ effect to the rest of the UK with attacks being carried out, for example, in Birmingham, Brighton, and Guildford. Events of The Troubles even spread as far as Gibraltar.

‘Presumptive’ Derogations?

A final difficulty with the Government’s proposal is the very idea of a ‘presumptive derogation’ itself. The UK’s armed forces may certainly be engaged in an overseas armed conflict that may amount to a threat to the life of the nation; however, each armed conflict or deployment of troops overseas must be assessed on its merits in order for a derogation to be justified under Article 15. It appears that the Ministry of Defence is acutely aware of this as it has stated that there will be an intention to derogate only if it is ‘possible in the circumstances that exist at the time’. If this is true, it raises the question of what, if anything, is novel about this proposal, save for the fact that it would be the first time a state derogated from a human rights treaty on the grounds of an extra-territorial conflict. In essence, it would not be ‘presumptive’ as the Government would still have to undertake the necessary assessment as to the conditions warranting the justification of a state of emergency and communicate this decision to the Secretary General of the Council of Europe in accordance with Article 15.3 of the Convention.

Conclusions: An inevitable Clash?

In conclusion, it is difficult to see how the outgoing Government’s proposals, vague as they are at present, can reduce judicial scrutiny of British armed forces overseas. What is foreseeable, however, is that the Government’s proposals may lead to a clash with the ECtHR. During the 2016 Brexit campaign, Theresa May was what could be best described as a ‘soft’ Remainer, keeping a low profile throughout. Her most prolific contribution to the Remain campaign was to argue for staying in the EU and instead repeal the ECHR:

‘…if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.’

While the UK has clashed with the ECtHR before, most notably over the issue of prisoner voting, using such a minor issue as grounds for leaving the jurisdiction of the ECtHR may not prove that popular, notwithstanding the Daily Mail’s best efforts. What may provide more attractive political ground would be leaving the ECtHR on a judgment of the ECtHR framed as hampering “Our Boys Overseas”. In turn, this could further encourage other states with express hostility towards enforcing ECtHR Court judgments such as Russia and Turkey to maintain or increase their intransigence.

Image Credit: Outlyndos[YM]  http://bit.ly/2oBqiJ7

Alan Greene – Brexit: The People have spoken…but who asked them in the first place?

DELI Blog

Dr Alan Greene (Durham Law School, Durham University)

‘The people have spoken, the bastards.’ – Dick Tuck

Referendums are blunt tools, framing often complex issues into deceptively simple binary choices. A referendum on membership of the EU was always going to struggle to adequately cover the complexities raised by this question in a constructive form. This post will briefly discuss two separate but related issues raised by the divisive Brexit referendum campaign. Firstly, I will draw upon Irish experiences of referendums as an illustrative example of how the UK could improve future referendums, highlighting key procedural problems with Brexit. Secondly, I will discuss whether the referendum itself is a flawed procedural concept or whether Brexit points to something deeper that is wrong with British parliamentary democracy.

EU Referendums: Lessons from Ireland

Ireland, with a similarly structured Westminster-style parliamentary democracy to the UK’s, is no stranger to referendums. Since its constitution…

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Does it matter that the US missile-strikes against Assad were illegal?

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US President Donald Trump’s decision to launch unilateral missile strikes against the Assad regime following its use of chemical weapons was almost universally welcomed by the US’s allies. This was so, notwithstanding the incontrovertible illegality of these actions. There are excellent posts available here and here on why these missile strikes against the Assad regime were illegal so I do not wish to add further to this discussion; rather, I wish to ask whether legality actually matters?

In this regard, I was struck by just how little coverage of the missile strikes focused on their legality. Similarly, few politicians invoked the idea of ‘legality’ to justify Trump’s decision. Paul Ryan welcomed Trump’s decision to strike Syria without prior congressional approval, describing the attack as ‘appropriate and just’. Notably absent from Ryan’s statement was the word ‘lawful’. He did, however, hint that any future action should be subject to congressional approval. The following day on the BBC Today programme , Deputy Assistant to the US President Sebastian Gorka was questioned about Trump’s authorisation of the use of force against Assad; however, focus was more on whether the actions were consistent with his campaign pledges of isolationism and anti-interventionism. The legality of the action did not arise.

Elsewhere, Canadian Prime Minister Justin Trudeau voiced his approval of the US’s ‘limited, focused attack’. German Chancellor Angela Merkel was more couched in her support, describing the missile strikes as ‘understandable’. In the UK, the Secretary of Defence Michael Fallon stated that the British Government ‘fully supported’ the US actions, arguing that the measures were ‘limited and appropriate’ and that the US had exhausted ‘all possible diplomatic and peaceful ways of dealing with the use by the regime of chemical weapons.’

Meanwhile, Liberal Democrat leader Tim Farron did attempt to outline some legal rationale for his support of Trump’s actions by invoking the doctrine of ‘responsibility to protect’ (R2P). Farron does not, however, elaborate on what he means by this. Nor does he acknowledge that the authority to employ the use of force under R2P framework lies solely with the UN Security Council. Instead, Farron’s musings on the legality of Trump’s decision invokes the illegality of chemical weapons which were ‘banned long before even the UN existed’. This, however, is completely irrelevant when assessing whether the decision was lawful. There is some distorted logic at play when the illegality of chemical weapons is used to justify an illegal use of force. Farron’s argument therefore essentially boils down to ‘two wrongs make a right’— an argument that is as discredited in international law as it is in the playground.

Of course, Russian President Vladimir Putin was quick to condemn the air-strikes as ‘illegal under international law’. Putin’s new-found commitment to only the lawful use of force is, however, almost laughably hypocritical given Russian involvement in Ukraine and, indeed, ignoring or disputing Assad’s use of chemical weapons and their horrific consequences.

The justification therefore of Trump’s missile strikes focuses more on the morality of the act rather than the legality. Legality is reduced either to a non-issue or merely an adjective to describe the actions rather than a legitimacy-conferring, fundamental value of a decision. While this issue of legality may, prima facie, pale in comparison to the horror of the use of chemical weapons, this apparent insignificance, in and of itself, raises the question of whether legality matters.

The value of Legality?

My gut reaction to this question is that of course legality matters. Even the thinnest conception of the rule of law, I contend, has some inherent value. The rule of law embodies concepts such as clarity and certainty which should guide action and allow individuals to plan their actions.  Joseph Raz describes the value of the rule of law as like an ‘instrument’. For Raz, this  value is like the ‘sharpness of a knife’:

A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of laws, indeed it is their most important inherent value…A knife is not a knife unless it has some ability to cut. The law to be law must be capable of guiding behaviour, however inefficiently.

Consequently, even a thin conception of the rule of law emphasises its capacity to shape and guide future action. In relation to the use of armed force, the rule of law has a modicum of value in it: that we have clarity and certainty as to when force will be used against a state and that it guides a state’s actions when deciding whether to use force. In turn, it should also give clarity and certainty to other states as to when force should be used. In the absence of express sanctions on states in the event that they breach the laws regarding the use of force, the main constraining factor is the expectation of reciprocity:  committing to being bound by international law in good faith that other states will do likewise. It is only in this way that condemnation of Russian actions as illegal under international law cannot be met by tu quoque accusations of US and British illegality regarding the invasion of Iraq, for example.

Raz’s positivism maintains the separation between law and morality, viewing them as two separate questions with his focus on the possibility of immoral laws. What is at issue here in relation to the US missile strikes on Syria, however, is not that the morality of the actions legalises them; rather, it is that the actions are morally justified and therefore the illegality is either justified or irrelevant. In this regard, the issue is not whether a law can be immoral; rather, it is whether breaching a law can be morally right. We are thus in a zone akin to civil disobedience.

The difficulty, however, with this analogy is that the US is not Rosa Parks defiantly sitting where she wants to in the face of an infinitely more powerful state apparatus. In contrast, what we have here is the key hegemonic power in the world—the US— and its allies breaching the law. This therefore is not the case of a plucky minority standing up to the hegemonic power; it is the hegemony itself deciding that the law which it was pivotal in shaping no longer matters.

Moreover, a key aspect of civil disobedience is that the illegality is not shied away from; rather, it is embraced. It is the very act of illegality that is used to demonstrate and call attention to the unjustness of the law in question. Again, this issue is not being confronted. The debate around the missile strikes is not centred on the impasse in the UN Security Council regarding the use of force in Syria. Instead, the US and its allies are stressing that what they are doing is morally right, shying away from the legality question. In contrast, Tim Farron seems to be willing to stretch the concept of legality to legalise Trump’s actions, avoiding the UN Security Council issue.

Conclusions

Those who contend that Trump’s actions were justified must, nevertheless confront their illegality. To stress their justification and ignore this issue is to side-step either the value of the rule of law in this context, or the problems that exist in the UN Security Council regarding the use of force. To argue, however, that such actions are lawful as intimated by Tim Farron is simply incorrect.

Image Credit: Tom Lohdan.  http://bit.ly/2ojkxn5