A Really, Really Foggy Report

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.