The Duty to Derogate: Suspending Human Rights in a Very Limited and Specific Way?

Section 12 of the Overseas Operations (Service Personnel and Veterans) Bill currently making its way through the United Kingdom (UK) Parliament imposes a duty on the Secretary of State to consider derogating from the European Convention on Human Rights (ECHR) in relation to certain overseas military operations. The duty is the product of long-standing concerns over the ECHR’s impact on the operational effectiveness of the British armed forces, a problem that derogations are meant to resolve. The purpose of this post is to offer some background to Section 12 of the Bill, assess the scope of the duty to derogate and consider how it meets the limits imposed on derogations by the ECHR.

Derogations as an instrument of counter-lawfare

In the first decades of its existence, the ECHR did not exert much of a direct impact on the British armed forces. Cases relating to the activities and deployment of military personnel were rare. This changed during the mid-1990s. Aggrieved service personnel discovered that human rights litigation were an effective tool for challenging discriminatory policies and aspects of the military justice system. Thanks in no small part to the adoption of the Human Rights Act 1998, the volume of litigation involving British forces grew exponentially following their deployment to Afghanistan and Iraq. Compared to the earlier case-law, the Ministry of Defence now not only faced a growing number of claims touching on matters of operational significance, but the evolving jurisprudence of the European Court of Human Rights (ECtHR) also expanded the extra-territorial application of the Convention to an ever growing range of situations.

To many observers, the extension of human rights law onto the battlefield seemed like a category error. Imposing peacetime standards on combat operations was not just inappropriate and overly constraining, but it encouraged service personnel to challenge command decisions, thereby eroding trust in the chain of command and rendering commanders more risk-averse. In an influential paper published in 2013, Thomas Tugendhat and Laura Croft suggested that the extension of human rights and the broader judicialisation of warfare amounted to a deliberate legal assault on the armed forces. This paved the way for equating the concept of “lawfare” with the threat of human rights litigation, an overly narrow and not very helpful association that still endures in the minds of many in the UK.

It is against this background that the idea of derogating from the ECHR during overseas military operations took hold. Derogations became official policy in 2016, when Defence Secretary Michael Fallon announced the government’s intention to derogate from the ECHR in future conflicts. The Explanatory Notes that accompany the Overseas Operations (Service Personnel and Veterans) Bill describe the latter as “one strand of the Government’s approach to addressing the problem of ‘Lawfare’ (the judicialisation of armed conflict)”.

Despite the long history of the idea, it is important to realise that this derogation strategy marks a shift in policy that comes with a significant trade-off. In the past, the UK Government has vehemently contested the extra-territorial applicability of the ECHR to overseas military operations, reluctantly accepting the Convention’s application only in situations where individuals found themselves in the physical custody of UK forces. Of course, derogations from the ECHR are only relevant on the assumption that the Convention applies in the first place. The flip side of this is that by derogating from the Convention, the UK is precluded from contesting its extra-territorial applicability. The more the Government derogates for overseas operations, the more it reinforces its extra-territorial applicability.

The scope of the duty to derogate

The Human Rights Act 1998 sets out the process to be followed when derogating from the ECHR. Sections 14, 16 and 17 of the Act provide for making derogations, their period of application and their periodic review. Section 12 of the Overseas Operations (Service Personnel and Veterans) Bill will amend this part of the Human Rights Act by inserting a new section 14A:

Duty to consider derogation regarding overseas operations

(1) In relation to any overseas operations that the Secretary of State considers are or would be significant, the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1) of the Convention.

(2) In this section—

“overseas operations” means operations of Her Majesty’s forces outside the British Islands in the course of which members of those forces may come under attack or face the threat of attack or violent resistance;

“Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).”

The duty to consider applies only to overseas operations that meet certain conditions. To qualify, they must involve operations of Her Majesty’s forces outside the British Islands. Section 374 of the Armed Forces Act 2006 defines “Her Majesty’s forces” in a negative fashion so as not include any Commonwealth forces. Based on this, we may assume that operations involving any other regular and reserve force mentioned in the Armed Forces Act 2006 are included within the ambit of section 14A and thus may trigger the duty to consider.

The Bill further limits the duty to consider to operations in the course of which members of Her Majesty’s forces “may come under attack or face the threat of attack or violent resistance”. To be meaningful, this condition cannot refer to a merely hypothetical threat. The likelihood of attack or violent resistance must be real. It is safe to assume that advisory, training or disaster relief operations are unlikely to qualify, provided they take place in mostly peaceful conditions. At any rate, it is not necessary that the threat or actual acts of violence should arise against the backdrop of an armed conflict.

The duty to consider is only triggered by qualifying overseas operations that “are or would be significant” in the Secretary of State’s assessment. As the Explanatory Notes clarify, the purpose of this threshold is to “avoid imposing a duty in relation to any operations that manifestly would not meet the criteria for derogation set out in Article 15 of the Convention”. This is sensible, given that any overly ambitious derogations may invite the scrutiny of the European Court of Human Rights. Based on this, the “significance” requirement is best construed in the light of Article 15 of the ECHR, as discussed below.

Finally, in discharging the duty to consider, the Secretary of State must determine whether it would be “appropriate” for the UK to derogate. Appropriate is a word capable of carrying a lot of weight. That said, the Secretary’s discretion is not unlimited. One might reasonably expect her to focus on the risk that the applicability of the ECHR poses to operational effectiveness and mission success, the extent to which a derogation may mitigate this risk, the broader political and security context and the conditions imposed by Article 15 of the ECHR.

The requirements of Article 15

Turning to Article 15 of the ECHR, there has been some uncertainty as to whether derogations are available in an extra-territorial setting at all. In Banković, the ECtHR held that Article 15 “is to be read subject to the ‘jurisdiction’ limitation enumerated in Article 1 of the Convention”. There is no reason why Article 15 should not mirror the scope of Article 1 more generally: if the obligations imposed by the ECHR apply in an extra-territorial manner, then they must do so subject to the power to derogate.

The fact that derogations are available only “[i]n time of war or other public emergency threatening the life of the nation” presents further difficulties. As Lord Bingham pointed out in Al Jedda, “[i]t is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw.” If overseas deployments hardly ever pose a threat sufficiently severe to trigger the applicability of Article 15, then it is difficult to see how the “significance” condition imposed by section 14A could be met other than in the midst of a war for national survival.

One answer to this is to read the reference to “war” and “public emergency which threatens the life of the nation” disjunctively. There are some indications in the travaux to suggest that the drafters of the ECHR regarded the existence of war as a threat to the life of the nation in and of itself. This opens the door to an interpretation which treats the very existence of war, or rather armed conflict, as a sufficient basis for derogation. Another answer is to extend the meaning of the term “nation” to cover the population of any third State in which British forces are deployed in situations where those forces are present to assist the local authorities in dealing with war or another public emergency of sufficient magnitude.

The Explanatory Notes suggest that the UK Government intends to use derogations to suspend the operation of Article 5 of the ECHR, so as to permit British forces to detain persons for imperative reasons of security. However, there is no need for the UK to derogate from Article 5 for these purposes in an international armed conflict. In Hassan, the European Court held that Article 5 must be interpreted and applied, as far as possible, in light of the power to intern prisoners of war and detain civilians under the Third and Fourth Geneva Conventions of 1949. The Court accepted that it was not necessary for a State party to lodge a formal derogation in order to benefit from these powers. In fact, in these circumstances, lodging such a derogation could be detrimental. If the UK were to derogate only from Article 5, this could be interpreted as a decision not to avail itself of derogations in relation to other rights, such as the right to life. By contrast, should it derogate comprehensively from all Convention rights, this may prompt heightened judicial scrutiny, including whether any deaths caused by UK forces resulted from “lawful acts of war”, as required by the second paragraph of Article 15(2) of the ECHR. Given the European Court’s chequered jurisprudence on the law of armed conflict, this is best avoided.

The benefit of derogations therefore seems to be confined mostly to the context of non-international armed conflicts. However, here too the Government is facing difficult trade-offs. In the case of Al-Waheed, the Supreme Court expressed significant doubts as to whether customary international law provides a basis for security detention in non-international armed conflict. Although the majority did not formally decide the question, the Government may well be tempted not the put the issue to the test and to formally derogate from Article 5 instead. However, such a move might be seen as expressing a lack of faith in its earlier position that a power to detain does exist under the customary law of non-international armed conflict.

The continued need for a principled approach

The language of section 14A affords the Government much room for manoeuvre. Considering how finely balanced the competing considerations that feed into the decision to derogate are, this comes as quite a relief. However, the application of human rights to overseas operations is a matter fraught with considerable emotion and subject to intense media interest. Once section 14A enters into force, future governments may find it difficult to resist pressure to derogate. But derogations are not a panacea. If preserving operational effectiveness really is the Government’s goal, then it must balance any short-term gains that derogations may offer in individual cases against the long-term negative consequences of the various trade-offs such derogations may entail.