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The Fog of Law

Published on April 21, 2015        Author: 

Eirik Bjorge and Marko Milanovic have written trenchant critiques of the Policy Exchange Report: Clearing the Fog of Law. They have pointed out the Report’s flaws with regard to the travaux of the Convention, the intention of the drafters, the evolution of the case-law on extraterritoriality, and the relationship between human rights law and the law of war. I wish to add three small points to the discussion.

First, it is worth dwelling on the Report’s subtitle: ‘Saving our Armed Forces from Defeat by Judicial Diktat.’ All of us who write, whether in the academy or policy-circles, face the challenge of thinking up interesting titles for our pieces, predominantly in the hope that they will be read. We are not always successful. But to retreat to hysterical overstatement is no solution, especially when it rests on flawed analysis and insufficiently motivated argument. Leaving aside the strained relationship between the parochial ‘our’ in the sub-title and the purposes of academic freedom, the Report produces little evidence of any real threat of grave defeat. We are simply told that the ‘spectre’ of the ‘imperial judiciary’ now ‘haunts’ commanders; that the departure from the European Court of Human Rights’ decision in Bankovic and its decision in Al-Jedda entail ‘human rights imperialism’ and ‘judicial imperialism’ respectively; and that the UK Supreme Court’s decision in Smith has already ‘compromised the warfighting capabilities of the British Armed Forces.’

Second, there is an obvious disjuncture in the Report between cases such as Smith involving British troops and cases such as Al-Skeini involving foreign citizens. In response to the second class of cases, the authors argue that their intention isn’t to make the law fall silent amid the clash of arms but to apply and strengthen the laws of war. In response to the first class – Smith and its ilk – this is not an option: there is no Geneva Convention V for the Amelioration of the Rights of State Parties’ Own Soldiers. Instead, the authors argue that the common law principle of combat immunity should be reinstated with a bumped-up system of no-fault compensation. This is said to be necessary to protect the combat effectiveness of the armed forces and the UK’s overarching constitutional settlement.

A few arguments might be raised against the view that combat immunity ought to be restored in cases brought by British troops and that Smith is a devastating threat to the armed forces and the UK’s constitutional settlement. One, the decision of the Supreme Court in Smith is narrow in allowing the claims to go forward – the judgment is shot through with caution, an appreciation of the dynamic conditions of the battlefield, the potential burdens to be placed on commanders, and the need for deference. Two, we might look to a related environment of complicated decision-making informed by dynamic risks and sensitive resource constraints: police law. The authors put forward no evidence that the embrace since Osman of Article 2 ECHR claims against the police, if not common law negligence claims, has unduly hampered effective police practice. Three, the constant pitching of the clash as between the military and the courts is simplistic. By definition, these cases are brought by members of the military or wider military community. It’s one thing to quote the opposition of Vice Chief of the Air Defence Staff, Air Chief Marshal Sir Stuart Peach. It is another to consider the views of Private Jason Smith’s mother, who pursued an Article 2-compliant inquest for 10 years following the death of her son. Four, at the level of principle, the authors are too quick to deny the force of Entick v Carrington – the idea, as Lord Hope put it in Smith, that ‘the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs.’ Smith is a small step on a long walk away from a culture of authority towards a culture of justification.

Third, in respect of the set of cases that involve the exercise of force by British troops over foreign citizens, what is missing from the Report is those foreign citizens themselves. Of course, they exist, but they exist only as case-names: Al-Skeini and Others; Hassan; Al-Jedda. They do not exist as people – as Hazim Al-Skeini, Muhammad Salim, Hannan Shmailawi, Waleed Fayay Muzban, Ahmed Jabbar Kareem Ali, Baha Mousa, Tarek Hassan, or Hilal Abdul-Razzaq Ali Al-Jedda. This nominative point is indicative of the deeper moral issue. The authors refuse to grapple with the different moral valences of human rights law and the laws of war – the key difference being the role of military necessity in the latter. It is not enough to tell us that human rights law would place additional constraints on the armed forces or that commanders would need to be more conscious of risks to soldiers and civilians. They need to show us that this would be a bad thing.

No doubt the Report will be picked up in political and policy circles and read with an eye on the impressive credentials of the authors. We can only hope that those reading it also engage with its flaws.

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12 Responses

  1. […] published by the Policy Exchange in November 2013 (read here and see comments here, here and here). Benjamin Wittes linked to it […]

  2. Miles, great post, all three points are well taken.
    Unfortunately, the report’s penchant for hyperbole diverts attention away from the fact that the armed forces are facing considerable legal challenges and that these raise entirely legitimate concerns. Take the application of Article 2 ECHR to military personnel, for instance. We sometimes hear (former) senior commanders voice the idea that service personnel give up their right to life upon joining the military. Of course, this is utter nonsense as a matter of law. However, it is important to recognize that this view is motivated by an entirely legitimate concern that service personnel might invoke human rights norms to refuse to comply with or to challenge an otherwise entirely lawful order which exposes them to lethal danger: “No sir, I refuse your order to advance on that enemy position as it violates my right to life!” The reality and legal framework of combat operations differ significantly from law enforcement, which is why the reference to the Osman case is not entirely appropriate. Military commanders have the authority and duty to make life and death decisions.
    That said, the answer is not deny the applicability of the right to life (or IHRL more generally) to military operations, but to apply human rights norms in a way which preserves the operational freedom of the armed forces (see ‘Clearing the Fog of Law’ seems oblivious to the fact that the Supreme Court in Smith is more deferential in this respect than the European Court of Human Rights. At any rate, the Strasbourg jurisprudence on Article 2 ECHR is not irreconcilable with the conduct of combat operations posing a risk of death to own forces (see pp 37–40).
    In Smith, Lord Hope was entirely right to declare that “the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs.” However, let’s not forget that he made that point not to deny the applicability of combat immunity in its entirety or to question the need for the doctrine, but in support of construing its scope narrowly. ‘Clearing the Fog of Law’ has drawn a justified barrage of criticism for advocating black-and-white solutions, but to call for replacing a ‘culture of authority’ in the military with a ‘culture of justification’ smacks of an equally black-and-white world view.

  3. Miles Jackson Miles Jackson

    Hi Aurel,

    Thanks very much for your comment. I agree that the more interesting question coming out of Smith is exactly the one you mention: how does Article 2 apply to the armed forces? More precisely, how does it apply to different aspects of military decision-making: procurement, training, operations, etc? As you say, it seems clear that the Supreme Court judgment points towards a deferential approach.

    As to the second point, it is certainly the case that standards of justification might differ by context; that much is evident in human rights law more generally. Moreover, in determining the institutional and constitutional limits of their role, it seems plausible that courts take into account the effectiveness of political and other forms of accountability. A culture of justification needn’t (and shouldn’t!) be black-and-white.


  4. Miles,

    Like it or not, the core business of the armed forces is warfighting. That is their ultimate raison d’être, even though nowadays they also undertake a broad range of other tasks too. You cannot fight a war based on a culture of justification, I’m afraid. Aiming to replace the culture of authority, discipline and hierarchy that characterizes the armed forces with a culture of justification is a recipe for disaster. That’s what senior commanders have been saying ad nauseam over the last two decades.

    The Fog of Law misses the mark in two major respects. First, its attack on the judiciary is misdirected and over the top, for the reasons that you, Eirik and Marko explained here on EJIL:Talk and Noelle and I did over at Lawfare. This attack and language is unfortunate, because it undermines an otherwise important message (the one in the paragraph above). Frankly, if something is defeating the British armed forces, it is spending cuts, not judges. Second, the report advocates solutions to the legal challenges facing the military which are overly ambitious and complacent at the same time, as we have explained over at Lawfare. Completely banishing international human rights law from the battlefield (or the barracks) is a pipedream. The only viable way to preserve the operational freedom of the military is to pro-actively engage with human rights discourse and bodies in an attempt to draw an appropriate balance and find a mutually acceptable ‘accommodation’ (a term I am using deliberately).

    This must involve some compromises (even a culture of authority must provide for appropriate forms of accountability), but also the acceptance of some red lines (the acceptance of status-based operations, for instance, to return to Hassan and Serdar Mohammed).


  5. Miles Jackson Miles Jackson

    I don’t think the core business of the armed forces is in dispute. In dispute are the legal constraints on that core business either in their treatment of their own forces or foreign citizens. Other than the shared issue of jurisdiction, the issues raised in each case are quite different.

    In case my original post was ambiguous, the shift from a culture of authority to a culture of justification was not a reference to the armed forces specifically but to constitutional and administrative control more generally. The paring down of ouster clauses, changes to crown immunities, and control of the prerogative are all part of that history – any time that power is a judge in its own cause. Smith should be understood as part of that evolution.

  6. Miles,

    I am not convinced that the issues raised by the application of the ECHR to British forces deployed overseas differ as sharply from the issues raised by the Convention’s application to third persons in the host State as you suggest they do. Of course, there are practical differences, for instance with regard to the establishment of jurisdiction for the purposes of Article 1 ECHR (in the case of military personnel, their integration into an effective chain of command and subjection to service law would at the very least create a presumption that jurisdiction exists, whereas different considerations apply in relation to third persons).

    However, on Article 2 ECHR, the issues are actually quite similar. The deliberate exposure of military personnel to lethal danger in combat operations raises questions about their right to life, as does the lethal targeting of third parties. In both cases, the unmitigated application of Article 2 ECHR would produce results that are absurd in law and practice, assuming that you accept that the rules of the law of armed conflict must co-exist with IHRL in a way which does not completely hollow out their purpose in regulating the conduct of hostilities.

    The reason why the judgment in Smith is not a devastating threat to the armed forces, as you rightly highlight in your post, is precisely because it recognizes this point by accepting that at least some aspects of military operations escape the reach of the right to life altogether. The reasoning in Smith does not in fact signal a shift towards a culture of justification, but recognizes the continued legitimacy and need for a culture of authority in certain core areas.


  7. Miles Jackson Miles Jackson

    Hi Aurel,

    The central difference between the two cases lies in the consent of members of the armed forces to certain risks, something that would inevitably figure in any judicial application of the right to life. Any such consent is simply absent for civilians killed by the armed forces. This is more than a practical difference relevant to jurisdiction.


  8. Miles,

    That’s a good point and consent certainly makes a difference in moral terms and perhaps also from a legal perspective, at least on some cases. However, no sharp and generally applicable distinction can be drawn on the basis of consent.

    In various places around the globe, including in some ECHR parties, membership in the armed forces is not voluntary, but based on conscription. Does this mean that Art 2 ECHR applies with greater rigour to such armed forces? Or at least to conscripts serving with those forces (but not to their professional colleagues)? What about enemy combatants? If they have volunteered to serve in their national forces, we may say that they have consented to be exposed to lethal danger by their home State. But have they consented to be exposed to lethal targeting by an enemy belligerent, which might also be an ECHR party? What about voluntary human shields? Or civilians employed by the armed forces? Have they assumed a degree of risk?

    What these questions highlight is that the distinction between soldiers (consent) v civilians (no consent) is not exactly watertight and may not be workable in practice (eg in armies made up of professional soldiers and conscripts).

    The rationale for greater flexibility in applying Art 2 ECHR to the armed forces is not based on consent, but on ‘the national interest’ (Smith, para 71) or on the State’s right of self-preservation, to put it in public international law terms.


  9. Miles Jackson Miles Jackson

    Hi Aurel,

    Thanks. Yes, I agree, there are difficult issues here, notably in any future conscription cases. These certainly require further thought. As to the cases at hand, I still think that consent (or the absence of it) is going to play a central role in determining the obligations owed by the UK to someone like Private Hewett, killed on patrol in Iraq, and Baha Mousa, killed by UK forces while working as a hotel receptionist in Basra.


  10. Agreed, food for further thought indeed. Thanks for this!

  11. I agree with Miles’s comment “like it or not, the core business of the armed forces is war fighting”, raison d’être indeed.Accomodation of human rights on the battlefield, with compromise here and there? probably more easily achieved with a “big wing” of B52’s.

  12. […] undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy […]