At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.
Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.