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A Really, Really Foggy Report

Published on April 15, 2015        Author: 

Eirik Bjorge has written an excellent critique of the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, by Richard Ekins, Jonathan Morgan, and Tom Tugendhat. I now write only to add a few additional (and apologetically undiplomatic) comments which I think the report warrants. I do so not because it may be substantively wrong in its conclusions and prescriptions, although some of these may be subject to reasonable disagreement. In fact, when it comes to one of the report’s main recommendations, that the UK (and other states parties) should derogate from the ECHR in (extraterritorial) situations of armed conflict, I at least am on the record as arguing that extraterritorial derogations are both permissible and that they can be a good idea.

My problem with the report is hence not with (some of) its conclusions, but with the quality of its analysis, leading to the misdiagnosis of the chief ailment that it identifies – allegedly extravagant judicial overreach. I have to say, regretfully, that the report’s analysis is crude and unsophisticated. It is in fact so crude and unsophisticated that it does a disservice to the overarching position it advances. The report is moreover manifestly clouded by the politics of its authors. Not that there is anything necessarily wrong, mind you, with the report of a right-of-centre (or left-of-centre, or whatever) think-tank demonstrating a distinct political bent. The problem here is rather that the authors allow their political predilections to solidify into a type of confirmation bias that all too easily leads to errors in judgment, argument, and method. Let me explain how and why.

First, the report simply posits as its main theme the apparently existential threat that judicial scrutiny poses to the military. At the outset it implies a direct causal relationship between a drop in British military effectiveness and the level of judicial scrutiny of the armed forces, when it says that: ‘[a]s the military’s expeditionary capabilities decline, those of the judiciary seem to grow’ (p. 9). Needless to say, correlation (if any) does not imply causation, and the authors actually do not provide a single example in their whole report of how human rights law in fact undermined British military effectiveness to any significant extent in some actual military operation. Any genuinely discernible drop in British military effectiveness seems much more likely to be caused by insufficient resources, poor procurement decisions (sometimes spectacularly so), and poor-verging-on-the-catastrophic decision-making by the military’s political masters. At the very least these seem to be some of the possible causal chains worth exploring, which the report does not do, choosing instead to pick on judges in a very Daily Mailish kind of vein.

I do not dispute that many commanders and military lawyers are concerned about the actual or potential impact of human rights and increasing judicial scrutiny on their existing practices. But this is not proof that such supposedly disastrous impact exists in fact or is likely. Rather, as part of their broad-brush portrayal of human rights standards as wholly impracticable in wartime, the report’s authors give almost no consideration to the inherent flexibility of most human rights norms, nor to the decades of built-up experience of applying such norms to extraordinary situations, ranging from Northern Ireland, to Cyprus, to the Turkish-Kurdish conflict, to Chechnya. Not that I claim, mind you, that there are no real uncertainties or difficulties with the interaction between IHL and human rights. My only (modest) claim is that the overall picture is far more complex than the authors make it seem.

Second, the report constructs a simplistic narrative of how traditionally human rights had no place in wartime and how we are now witnessing a veritable judge-made revolution that tries to inject human rights law into situations it was never intended to regulate. The report repeatedly attempts to ground this narrative with claims about the supposed original intentions of the states parties to the European Convention with regard to the Convention’s extraterritorial applicability and its relationship with the law of armed conflict: the ECHR was ‘designed for the stable [sic!] conditions of post war Europe’ (p. 9); ‘[t]he traditional interpretation of the ECHR saw the requirement that states guarantee the Convention’s rights and freedoms “to everyone within their jurisdiction” (Article 1) as applying to those within the state’s territory’ (p. 11); the ECHR was ‘intended to regulate stable peacetime polities’ (p. 26); ‘[t]he best conclusion on [articles 2 and 5 ECHR] is that they were simply not intended by the treaty’s drafters and original signatories to apply to combat’ (p. 27); there used to be a ‘general understanding that the ECHR did not apply extraterritorially’ (p. 46); ‘One should not think the reach of the ECHR a matter for free judicial choice: rather, the scope of the Convention should be settled by the intentions of the original parties to the Convention. However, the Strasbourg Court’s conception of the Convention as a “living instrument” – which it is free to remake over time as it sees fit – equips and disposes the Court to extend jurisdiction as far as it thinks warranted, even if flatly contrary to the intentions of the states, including the UK, who created the Convention in the first place’ (p. 48).

This narrative of supposedly clear intentions of the drafters regarding the limited or even no extraterritorial application of the ECHR, especially in armed conflict, is reinforced by the portrayal of the Court’s Bankovic decision as reflecting the traditional (and consequently correct/good) approach, while the Court’s departure from Bankovic in Al-Skeini is described as revolutionary (and consequently judicially imperialist/bad) (pp. 11, 15). No attempt is made to situate Bankovic in the already massive jurisprudence that preceded it, nor in its contemporary context (e.g. the fact that it was decided a few months after 9/11).

What’s particularly striking about this narrative is the almost complete absence of any footnotes to support it. Only once – once – do the authors actually try to provide us with a reference to some evidence for their claims about the supposed original intentions of the parties. Thus, on p. 14, they refer to Bankovic as having ‘treated jurisdiction as a territorial matter – that is, applying on UK territory only, exceptional situations aside. This accords with the intentions of the drafters of the ECHR, as study of the “Travaux Préparatoires” reveals.’ They then provide a footnote to para. 65 of Bankovic itself (which deals with one sorry paragraph in the travaux) and to unspecified further references in a speech by Lord Dyson, which does the exact same thing.

This is a methodologically completely unsatisfactory approach, which is particularly shocking because one of the authors in fact wrote a major treatise on the subject of legislative intent. Indeed, I very much doubt that, despite their emphatic claims regarding the intentions of the parties, the authors even looked at the ECHR’s travaux (or the more or less contemporaneous travaux of other human rights treaties, such as the ICCPR). Had they done so (as many others, including myself, have), they would have found no clear original intentions, no first principles, no examination of potential scenarios of the Convention’s extraterritorial application, nor of its application in armed conflict. These questions were simply not on the drafters’ radar in any kind of coherent way – we have no idea what they would have intended if confronted with the problems we are faced with today. (I leave aside the more important, and much more complex, question of what normative relevance we should assign to the subsequent practice of states when interpreting the relevant treaties).

Third, the report is exceptionally selective in its citations to sources. It says nothing of the numerous, formal affirmations by states of the co-application of IHL and human rights in time of armed conflict since the 1970s onwards. It says little or nothing about the position of other international courts and human rights bodies on the same point. It more or less brushes aside the vast amounts of scholarship produced by international lawyers on this set of issues, the clear majority of whom do not support the report’s positions, except by noting wistfully (p. 30) that ‘[a]ccording legal priority to the Geneva Conventions has, sadly, long been out of fashion at the level of general international law.’ (The thought that international lawyers know what they are doing in appraising their own field does not seem to be seriously entertained.) And it caricatures the arguments of the proponents of the merger of IHL and IHRL as supposedly claiming exclusivity, superiority or supremacy for IHRL (p. 48), when in fact they do no such thing (needless to say, they provide no citation to the work of any such human rights absolutist).

Finally, I feel compelled to say something on the expertise of the report’s authors. It is truly perplexing that a serious organization such as Policy Exchange chose not to include a single international lawyer in the report’s team of authors, when after all the main topic of the report is precisely one of international law. Dr Richard Ekins is a (domestic) public lawyer; Dr Jonathan Morgan is a tort lawyer; while Tom Tugendhat is a former military officer and not a lawyer at all (but a theologian by training), who is currently running for a safe Tory seat in the forthcoming UK parliamentary elections (good for him). From what I can see, none of them has ever written even a single academic article on international law generally or international humanitarian law specifically, nor has any other demonstrable expertise in the question of the relationship between IHL and IHRl.

For the avoidance of doubt, I have never met any of the authors and certainly have no personal axe to grind here. I mention this not only because genuine expertise is important as a matter of principle, but also because one reason for reasonable concern that the judges of the European Court, as well as domestic judges, may apply overly restrictive or impracticable human rights standards to situations of armed conflict is precisely that most of them have little training, experience or any real expertise in IHL. (Not everybody can absorb this stuff with the apparent ease of a Mr Justice Leggatt). When I talk to military lawyers (and I am fortunate to talk to many), who live and breathe IHL and are deeply committed to the values of the system, this is a point that inevitably pops up. And this is what a real problem of judicial scrutiny of military operations looks like, one which is for a variety of reasons not easy to remedy, even if it could perhaps be suggested that states should take a closer look at the subject-matter expertise of people elected to the Strasbourg bench.

To conclude, while some of the recommendations of the Policy Exchange report are sensible (e.g. with regard to derogations), its analysis as a whole is far from impressive. It is in fact from its very first page inexorably geared towards reaching the results that the authors wanted to reach anyway, even if (without any hint of self-irony) they fault judges for supposedly doing the exact same thing. They indeed do so without providing any normative argument whatsoever for why human rights should just completely blink out of existence in wartime or extraterritorially, beyond invoking some supposed original intentions of the parties which simply aren’t there. And while concerns about the practicalities of the interaction between IHL and IHRL in some hard cases are very real, the best way to address these concerns is precisely to think through these difficult scenarios and try to provide practical, workable solutions (e.g. on what the positive obligation to investigate really entails during a military operation). It is not to replace one set of apparently easy answers (that the ECHR does not apply at all) with another (let’s just derogate away). Even if a future UK government chooses to derogate extraterritorially and in armed conflict (assuming that the UK remains a party to the ECHR), derogation should not be seen as a magic bullet any more than Article 1 jurisdiction ultimately proved to be. In short, the very real concerns about the interaction between IHL and IHRL that we can have simply cannot be addressed by a foggy report such as this one, which does little more but gratuitously pooh-pooh on courts and judges.

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4 Responses

  1. Bill Boothby

    To an academic lawyer, argument about the law, that does not cite primary and secondary sources copiously, lacks the apparent academic rigour that is the essence of a piece the conclusions of which are to be respected. To a member of a think tank, concerned with broad philosophical discussion of directions of policy travel, footnotes and detail risk obscuring the apparently more important points of a general nature that a ‘policy think piece’ is designed to highlight. Each of these disciplines has its value. It is perhaps inappropriate to criticise the one for failing to adopt the methods of the other.
    The present author has in the relatively recent past striven to make sense of the legal complexities that evolving interpretations by international courts create where the relationship between IHL and international human rights law is concerned (Refer to W H Boothby, Conflict Law (2014), Chapters 8, 9 and 10). Absolutely correct is Christopher Greenwood’s summary of the position reached by the international courts to the effect that specific rules of IHL and respectively of international human rights law must be applied in specific circumstances. The main concern arising from his correct conclusion, based as it was on contemporary international court decisions, is the difficulty this poses for commanders in briefing subordinates in advance of operations. The Commander has the duty at that stage to seek to ensure that his or her subordinates fully appreciate the law to be applied, but the circumstances that would, under the ‘specific rules in specific circumstances’ arrangement, arise will not often be known in advance. It is the inherent impracticality of such a legal construct that seems to call into question whether this is in fact the law if one takes the practice of states as being an important determinant of international law and of its legal interpretation (Vide Vienna Convention on the Law of Treaties, 1969, article 38).
    It is perhaps debatable to what extent the states that negotiated and adopted international human rights law instruments had the applicability of human rights law during armed conflict in mind when doing so. It would be difficult, however, to argue persuasively that by 1950 the events of 1939 to 1945 had been entirely forgotten. Moreover it was around the same time that the four Geneva Conventions were adopted. So there is no doubt that states had the application of law to warfare very much in mind, but was that specifically their intention with regard to human rights law?
    The number of legal challenges and the degree to which international and domestic courts find against the UK Government and more specifically against the UK Ministry of Defence are matters of record. The interesting issue, discussed in Chapter 11 of W H Boothby, Conflict Law (2014), is the disparate spotlight that modern mass and social media and the wide selection of different types of contemporary legal challenge collectively shed on command decision-making. The vitally important question is whether this ‘spotlight’ is having a damaging effect on the ability of the UK armed forces to continue to operate effectively. The Policy Exchange paper appears to assert that such an effect can be detected. The Policy Exchange paper then draws attention to the implications of the Al Skeini, Jaloud and Al-Sadoon judgments for the application of human rights law to armed conflict operations and suggests steps to address what it argues are the unacceptable implications of such application. While full academic rigour may not have been brought to bear on the analysis in the paper, there is, one would suggest, a legitimate determination to be made and it is this: Can modern military operations be conducted successfully while complying with the legal architecture that these judgements impose and, if not, what is to be done? The Policy Exchange paper advocates a course of action. The present author would certainly suggest that carefully drafted and comprehensive public statements of national position on the relationship between IHL and international human rights law during periods of armed conflict would assist both national and international courts in addressing these matters. Whether the correct approach to these and other concerns extends to a national withdrawal from ECHR and the substitution no doubt of some national ‘Bill of Rights’, or similar, is a matter of current debate within the election campaign and, to be fair, is not a focus of the argument in the Policy Exchange paper. There are, in the present author’s view, advantages to continued membership of such an international arrangement provided that reasonable national interpretations can be, and indeed are, respected. It would seem that the continued military ability to operate effectively in the complex circumstances to which forces will foreseeably be deployed is vital. There will continue in the future to be military dangers that the UK should address, and address successfully, using military assets. Those dangers may require military operations to be conducted abroad. The legal rules that govern armed forces action pursuant to those operations must be clear, practical, widely understood and complied with. That is the objective that continuing legal discussion must aim to achieve.’

  2. Rafael

    I dispute the following consideration “how we are now witnessing a veritable judge-made revolution that tries to inject human rights law into situations it was never intended to regulate.”

    There is no way one can affirm what human rights was intended to regulate or not. The Universal Declaration is a direct response to violent crimes committed during a war against civil population, what would easily fit in the international humanitarian law of today. The Fourd freedoms discourse – one of the main political precedents for the Declaration and the subsequent human rights movement – does not discriminate between a state of war and peace and was a discourse clearly applied to all situations.

    Human dignity – the foundation of both IHL and human rights – is not a flexible concept to change according to the existence of conflict or not.

    One cannot conclude that the “intention” of human rights is to serve as normative framework for peace and IHL as a framework for armed conflicts (I´m aware of some conclusions of the ICJ on this aspect).

    This distinction is due to much more recent developments than to the “intention” of the human rights proposals in the begginings of the UN. This distinction is also, I must say, a very convenient argument for intervening powers in armed conflicts (as the UK report exemplifies wonderfully).

    The “flight from human rights” is only an intent by armies and their supporting States to have a “carte blanche” to kill and not face the legal consequences of the violation of the human rights law (as IHL does not have a institutionalized and embedded supervisory apparatus as human rights law does).

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