The Fogmachine of War: A Comment on the Report “Clearing the Fog of Law”

In the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Richard Ekins, Jonathan Morgan, and Tom Tugendhat criticize the European Court of Human Rights at Strasbourg for not disapplying the rights of the European Convention on Human Rights (ECHR) in cases where British troops act abroad. Together the authors have written a report which impresses with its eloquence and conviction, but ultimately leaves something to be desired in terms of how it treats the sources and the method of international law.

The authors focus their attention on what they refer to as ‘a new form of judicial imperialism’(p 7), ‘the cavalier expansion’ of the ECHR (p 46), a development which, in their view, has at least two problematic aspects. First, the provisions of the ECHR, a convention which in their view was meant to be applicable only in time of peace, have been allowed to apply in war. Second, not only has the ECHR, in their view, illegitimately been allowed to apply; it ‘is supplanting and undermining the older and far more suitable body of International Humanitarian Law’ (p 9), for this purpose the four Geneva Conventions.

According to the report, the Strasbourg Court is wrong to have applied the ECHR to the actions of British troops acting abroad, and the Strasbourg Court is wrong to have let the ECHR supplant the rules of international humanitarian law. Such developments, the authors say, are not ‘properly supported by sound legal method’ but rather ‘an instance of over-bearing judicial power’ (p 9), the report arguing in essence that the courts have discarded what the authors term the traditional interpretation of the ECHR which could be summed up as ‘the general understanding that the ECHR did not apply extraterritorially’ (p 11& 46).

The ECHR was not intended to go silent amid the clash of arms

Time and again, the authors make the claim that the ECHR was ‘designed for conditions of peace in post-war Europe’ (p 8 & 9), ‘intended to regulate stable peacetime polities’ (p 26), ‘simply not intended by the treaty’s drafters and original signatories to apply to combat’ (p 27 & 28); they refer to ‘the peacetime human rights standards of the ECHR’ (p 32). The message is clear—the judges of the Strasbourg Court are plainly wrong to apply the ECHR to anything but ‘the peacetime for which the ECHR was envisaged’ (p 31). This is, however, plainly wrong.

Had it been the case that the ECHR was intended to apply only in peacetime, then the Convention would obviously not, in its Article 15, have included a provision for derogation of certain rights ‘in time of war or other public emergency threatening the life of the nation’. As Judge Greenwood, on whose authority the report itself relies, has put it:

‘The fact that this Article provides that a state may derogate from provisions of the Convention in time of war, rather than that such provisions are automatically rendered inapplicable, is incompatible with the notion that the Convention is applicable only in time of peace’(C Greenwood, ‘Rights at the Frontier’ in Law at the Centre (Kluwer, 1999) 279).

This conclusion is plain from the clear text of the Convention and is, by any standard, not a breach of ‘sound legal method’.

Could Parliament have expected the ECHR to apply extraterritorially?

The authors make the point that when the Human Rights Act 1998 was guided through Parliament it was never anticipated that the Act would operate in such a way as directly to affect the activities of UK forces abroad (p 13 & 29). The Strasbourg institutions, however, in a number of well-known cases beginning in the 1970s, had held that the Convention could apply not only when authority was exercised within a contracting state’s territory but also abroad, and that this applied to when through military action—whether lawful or unlawful—that state exercised effective control of an area outside its national territory (Cyprus v Turkey (1977) 62 ILR 4, 74 at [19]; Loizidou v Turkey (Merits) (1996) 108 ILR 443 at [56]). As Theodor Meron put it in 1995:

‘there is no a priori reason to limit a state’s obligation to respect human rights to its national territory’ ((1995) 89 AJIL 78, 80–1).

The idea of extraterritorial application of the Convention was in no way unheard of or novel by the time the Human Rights Act went through Parliament, nor the idea that the Convention applied in armed conflict.

The ECHR and international humanitarian law

The next issue is the interaction of the ECHR and international humanitarian law. As most international lawyers would agree, this is a complex question. The authors refer to the view put forward by Judge Greenwood that human rights law cannot be relied on to set aside the ‘painstakingly negotiated compromises’ of international humanitarian law. This is obviously correct. But the authors omit to cite what Judge Greenwood said just before he made this point, namely that the military lawyer must accept:

‘what may often seem the inconvenience of having to take into account another body of law [ie international human rights law] with a very different structure and approach to that of the laws of war with which he or she is familiar’ (Greenwood, p 292).

All is fair in love and war, but this is not a good way of quoting the balanced view of a leading international lawyer. Indeed, on closer inspection, Judge Greenwood’s view of the interpretative reconciliation of human rights law and international humanitarian law is the rock upon which founders the report’s thesis.

The criticism that the report levels at the judgments of the Strasbourg Court in relation to the question of the relationship between international humanitarian law and the ECHR fails to convince. One of the judgments that the authors single out for criticism is Al-Jedda v United Kingdom. This judgment is cited as evidence of ‘judicial imperialism’ and as showing ‘the risks of straightforwardly applying Article 5 of the ECHR to armed conflict’ as it ‘apparently ignored the Geneva Conventions altogether’(p 20 & 29–31). As will be seen, Al-Jedda could be thought to be an unnatural candidate in this connection.

The Court in Al-Jedda examined whether there was any other legal basis for Al-Jedda’s detention which could operate to disapply the requirements of Article 5(1) (at [107]), finding that not to be the case. Geneva Convention IV applies, according to its Article 2, during occupation. Importantly, and this was common ground between the parties to the case, the occupation of Iraq had come to an end three months before Al-Jedda’s internment. Logically, therefore, the pertinent Geneva Convention, Geneva Convention IV, never applied to the applicant’s detention and could in no way be its basis. It seems entirely unjustified to criticize the Court for not having applied international humanitarian law, let alone for not having allowed it to apply instead of the provisions of the ECHR, in a case where no occupation was in issue. As Andrew Clapham, a co-editor of the new Oxford Commentary on the Geneva Conventions, has observed:

‘the Court was not, in fact dealing with an [international armed conflict], nor was it claimed that [Geneva Convention IV] applied de jure to the situation. In such circumstances it seems inappropriate to conclude that [Geneva Convention IV] displaces human rights law, or provides an implied legal basis for detention under human rights law’ (‘The Complex Relationship between the 1949 Geneva Conventions and International Human Rights Law’ in The 1949 Geneva Conventions: A Commentary (OUP, forthcoming 2015) at [34])

Would it not have been surprising if, in fact, the Court had decided to apply Geneva Convention IV when, according to its terms, that convention did not apply?

No less astonishing is the criticism of the recent Grand Chamber judgment in Hassan v United Kingdom, which the report seems to criticize both for not going far enough in letting rules of international humanitarian law trump the provisions of the ECHR and for going too far in doing so. The case concerned an Iraqi citizen who was arrested, by British forces, during the ‘major combat operations’ phase of the Iraq war; he was detained for a short period and then released. He claimed that his arrest and detention had breached Article 5 ECHR. The Grand Chamber dismissed the Article 5 claim, determining that since the UK had been exercising its power of detention under the Geneva Conventions, Hassan’s detention was legal under international humanitarian law. In the view of Ekins, Morgan, and Tugendhat, the judgment ‘has negative implications for IHL’, as it reaffirmed the (obvious) fact that the ECHR applies during international armed and did not go far enough in letting international humanitarian law take precedence over the European Convention (p 17). The authors do not mention the international law pedigree of the Strasbourg Court’s approach, the International Court of Justice having held in Nuclear Weapons and Wall that

‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation’ (ICJ Rep 2004 p 136, 178 at [106]; ICJ Rep 1996 p 225, 240 at [25]).

The report here takes an unbalanced view that certainly parts company with the approach authoritatively laid down by the International Court of Justice.

But, perhaps surprisingly, the authors also attack the judgment from the other side, joining the ‘uncompromising dissent by Icelandic Judge Robert Spano’, now taking the view that the Strasbourg Court had gone too far in trying to incorporate into the Convention the rules of international humanitarian law, that the majority has actually inserted into Article 5 a ‘new, unwritten ground for a deprivation of liberty’. In substance, the Court had given the Geneva Conventions priority over the ECHR, all the while denying that it was doing so, the authors state (p 29–30).

The Court, it seems, did too little and too much at the same time. The report blows cold and hot, the only constant being that, whatever it does, the Strasbourg Court is in their view getting it wrong. Messrs Ekis, Morgan, and Tugendhat plainly take the view of Marx Brothers’ character Mr Wagstaff, the fatuous college don who merrily sings: ‘I don’t know what they have to say, it makes no difference anyway; whatever it is, I’m against it!’

Conclusion

What, then, are we to make of Clearing the Fog of Law? As has been seen above, the report makes certain critical errors. Perhaps most important amongst these is the fact that the report does not take on board that the interaction of international humanitarian law and human rights law is a question of degree. Resolving the question of the concurrent application of international humanitarian law and the ECHR by way of the absolutes of this report is bound, as a matter of international law, to fail. Judge Greenwood, on whom the authors themselves rely, has helpfully set out how tension arises between the two rival schools of, on the one hand, the ‘worldly wise’, who go too far in insisting that international humanitarian law should win the day and, on the other, the idealists, who hold that the law of human rights must always be respected and trump international humanitarian law (Greenwood, 278). He continues: ‘all too often the adherents of one school appear to know little of the law on which the other school relies’; this leads to the members of the two camps regarding their

‘own favoured part of international law as a self-contained legal regime capable of being applied without reference to the rest of international law and especially without reference to the alien legal regime relied upon by the rival school’.

This could be thought to be a fitting description of Clearing the Fog of Law.