Last Friday, the Policy Exchange, a British think tank dedicated to the development and promotion of new policy ideas, published a Report entitled ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’. The Report makes fascinating reading and deserves serious attention. Written by Thomas Tugendhat and Laura Croft, its aim is to explain how the cumulative effect of legal developments taking place over the past decade has undermined the ability of Britain’s armed forces to operate effectively on the battlefield. The Report questions the desirability of what it calls ‘legal mission creep’ and offers seven policy recommendations designed to reverse it or at least arrest its future development.
Undermining the warfighting ethos
Flexibility, initiative and the acceptance of risk and responsibility are central to British military doctrine. As the British Defence Doctrine puts it, one of the key components of the ‘British way of war’ is ‘a style of command that promotes decentralised command, freedom and speed of action and initiative’. ‘The Fog of Law’ brings together a considerable body of examples to suggests that the growing legal regulation and civilian oversight of the armed forces—in particular the spread of inquiries, the extension of civilian duty of care standards and the constant threat of litigation—have begun to undermine the warfighting ethos of the military and restrict commanders’ freedom to act. A series of legal developments have contributed to this change. However, Tugendhat and Croft direct their fiercest criticism against the European Convention on Human Rights, which they describe as the ‘main weapon used in the legal challenge against the [UK Ministry of Defence]’ (p. 17). In their view, the extension of ‘a civilian understanding of duty of care and rights guaranteed by the ECHR’ to combat operations represents a ‘legal intrusion into decisions made in a time of war’ (p. 28).
It is important to stress that ‘The Fog of Law’ does not advocate the complete exemption of the armed forces from the rule of law. The Report makes abundantly clear Tugendhat and Croft’s view that the problem is not the imposition of legal constraints on the armed forces as such, but the extension of civilian law to the military. Indeed, their entire discussion seems to be predicated on an underlying assumption that civilian law and military law are distinct normative regimes and that their respective spheres of application can, and should, be neatly separated from one another. Civilian law and oversight are thus depicted as alien forces which ‘intrude’, ‘assault’ and ‘intervene’ into the military sphere, ‘encircling’ it and ‘encroaching’ upon its autonomy. This is the stuff of high drama, but the accuracy of the picture painted is open to question. The assumption that there is law for civilians and law for the military seems to mistake both the nature of the problem and its solution.
The real problem and the right solution
Why does the Report mistake the nature of the problem? First, because the predicament that the British military finds itself in does not result from the judicial extension of the ECHR to situations of armed hostilities: the Convention already applies to such situations without the need for judicial intervention. Rather, Britain’s armed forces find themselves in a difficult spot because a long line of cases has affirmed the extra-territorial application of the Convention to their activities on deployed operations. Second, extra-territoriality is here to stay: it is difficult to see how this particular toothpaste can be pushed back into its tube. However, even if the Convention—for the sake of argument—were not applicable to a particular operation abroad, other human rights law instruments may well be. Nor should one forget about the existence of rules of customary international law in this area, a point recalled by the Court of Appeal in The Hague in the case of Nuhanović. Third, the relationship between international human rights law and international humanitarian law is multifaceted. While Tugendhat and Croft are right to point out that treating these two bodies of law as complementary ‘does little to make the lives of soldiers and commanders easier’, it does not follow that their relationship can or should be reduced to a ‘battle for supremacy’ (p. 38). The notion that international humanitarian law constitutes lex specialis does not mean that it displaces the applicability of international human rights law in toto.
Why does the Report mistake the solution? Because it follows from the nature of the problem that it is unrealistic to expect that the armed forces can be subjected to the sole authority of ‘military’ law and justice to the exclusion of ‘civilian’ law and accountability. International human rights law derives from a multitude of sources and applies in times of armed conflict: the British Government cannot simply opt out from its binding effect and apply international humanitarian law instead. Even if this were possible, it is a mistake to assume that international humanitarian law is always better suited as a regulatory framework for deployed operations. This overlooks the inherent limitations of this body of law. For a start, international humanitarian law may not be applicable during certain deployments at all, particularly in post-conflict environments. The fuzzy end to the belligerent occupation of Iraq is a case in point. We should also remember that international humanitarian law does not govern the activities of the parties to an armed conflict in a comprehensive manner. Gaps exist, and some of these gaps are quite significant. Detention is a good example. While international humanitarian law provides a solid legal authority for detention in international armed conflict, the same cannot be said for the detention of civilians in non-international armed conflict, including operations in Afghanistan.
Consequently, rejecting ‘civilian’ law in favour of ‘military’ law is not an appropriate solution for the ‘legal mission creep’ identified by the Report. Nothing about the civilian nature of international human rights law makes it inherently unsuited for the military. Indeed, we should not forget that many overseas deployments of the British armed forces are motivated and publicly justified in the name of humanity and the rule of law. Rather, the solution lies in finding an appropriate balance between the high standards demanded by human rights and fundamental freedoms on the one hand and considerations of military effectiveness on the other hand. Such a balance is woven into the very fabric of international humanitarian law, but is absent from international human rights law. We must therefore rely on other methods to introduce greater flexibility into its operation.
The road ahead
Thus far, the search for an appropriate balance between fundamental rights and operational effectiveness has been dominated by judicial processes. There can be no doubt that international and domestic courts can make a valuable contribution to identifying and maintaining this balance. It is worth noting in this respect that the much maligned judgment of the Supreme Court in Smith  is in fact more nuanced than the Report accepts. According to Lord Hope, the guidance to be drawn from the European Court of Human Rights’ jurisprudence on Article 2 of the ECHR is that
the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article.
As a matter of principle, drawing the balance between the right to life and operational effectiveness in this manner is perfectly reasonable and as such hardly objectionable. Whether it also produces unobjectionable results in practice hinges on the meaning accorded to the words ‘unrealistic’, ‘disproportionate’ and ‘reasonable expectation’. Terms such as these must be interpreted and applied. Until now, this task has been left largely to the courts, with the British Government and the British armed forces participating in the debate mostly as defendants. The Report’s principal merit is to make a compelling case for a more pro-active approach by the British Government. Out of the seven options identified by the Report to support the Government in this task, two are of particular interest here and deserve brief comment.
First, the Report suggests that the UK should derogate from the ECHR for deployed operations. As is well known, the High Contracting Parties may avail themselves of the right to make derogations under Article 15 of the ECHR only in time of war or other public emergency ‘threatening the life of the nation’. Since the term ‘nation’ refers to the Party making the derogation, Article 15 does not, at least on its face, apply to peace support operations. Although a compelling case can be made that the derogation clauses of human rights instruments such as the ECHR must be interpreted dynamically to apply in an extra-territorial manner, this argument has not yet been tested in court. Even if this initial hurdle is overcome, other difficulties arise. A valid derogation from the ECHR does not absolve the UK from its obligations under other international agreements, such as the International Covenant for Civil and Political Rights. Nor is it clear what effect, if any, such derogations have on the continued applicability of the UK’s human rights obligations under customary international law. The pending accession of the EU to the ECHR may complicate matters further. Pursuant to Article 216(2) of the Treaty on the Functioning of the European Union, international agreements concluded by the Union are binding on its Member States. With the Union’s accession to the ECHR, its provisions will become an integral part of EU law and become binding on the Member States as such. Since it is accepted that the ECHR can apply to the EU in an extra-territorial manner (see Final Report to the Draft Accession Agreement), it follows that a derogation made by the British Government under Article 15 of the ECHR does not necessarily absolve it of its corresponding obligation under EU law to comply with the Convention as a matter EU law. If this is the case, the utility of derogations made under of the ECHR may be seriously compromised.
Second, the Report recommends that the UK should seek explicit language in the Security Council resolutions authorizing or mandating the deployment of British forces abroad in order to provide a clear legal basis for activities which the European Court might otherwise find to be in breach of the ECHR. Robust and explicit Security Council authorizations would answer some of the difficulties mentioned above, including the need to make parallel derogations under the relevant human rights instruments, but they would not resolve all problems. In Al-Jedda, the European Court of Human Rights seemed to accept that obligations imposed under the UN Charter prevail over those imposed under the ECHR. By contrast, in Kadi the European Court of Justice has famously, albeit wrongly, declared that the obligations imposed by the UN Charter cannot have the effect of prejudicing the constitutional principles of the Union’s founding Treaties. It is not inconceivable that following the accession of the EU to the ECHR, the Court of Justice of the EU may decline to give effect within the EU legal order to Security Council resolutions seeking to absolve the Member States from their duty to comply with certain provisions of the ECHR in deployed operations. If that were to be the case, the UK may continue to be bound by the ECHR as a matter of EU law, despite having obtained explicit authorizations from the Security Council. However, before such questions can be entertained at all, the British Government will have to convince the Security Council that explicit derogations from international human rights norms are in fact necessary. Achieving this in a timely fashion for each operation will be no mean feat.
Neither of the two solutions advocated by the Report is without its difficulties and limitations. If the British Government is truly concerned about the erosion of the operational freedom of its armed forces, it must adopt a more purposeful approach in setting the balance between human rights and operational effectiveness right. To this end, it must not only make a compelling case both at home and abroad about the need to re-adjust the balance, but also be prepared to take appropriate action, preferably with like-minded nations, on the international stage.