Human Rights and Military Operations
HUMAN RIGHTS AND MILITARY OPERATIONS:
CONFRONTING THE CHALLENGES
WORKSHOP REPORT
Noëlle Quénivet
Aurel Sari
OCCASIONAL PAPER No. 2
Human Rights and Military Operations
Human Rights and Military Operations: Confronting the Challenges
Noëlle Quénivet and Aurel Sari
July 2015
© The Authors
Picture credits: Reuters (page 3 & 8), MoD (page 10, 14 & 19), Supreme Court (page 16).
About the Strategy and Security Institute
The Strategy and Security Institute (SSI) is an interdisciplinary centre for research
and education within the College of Social Sciences and International Studies of the
University of Exeter. SSI carries out research, consultancy and teaching in the fields
of global security and strategy, particularly relating to how individuals and
organisations deal with conflict under intense pressure. SSI is both a response to the
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gaps these interventions have uncovered by enhancing the strategic competence of
the leaders of the future. The Institute is directed by Lieutenant General (Retd)
Professor Sir Paul Newton KBE and is based in Knightley on Streatham Drive.
Human Rights and Military Operations
Contents
Executive Summary.......................................................................................................2
1. Introduction.............................................................................................................3
2. The Services v Strasbourg: The UK Armed Forces in the European Court of
Human Rights ................................................................................................................5
Introduction............................................................................................................5
Overview of the Cases ............................................................................................5
Understanding the Distinction between Operations in Northern Ireland and
Abroad ....................................................................................................................6
Centrality of Article 2 ECHR in Military Operations ...............................................8
Obligations under Article 2 ECHR ...........................................................................9
Pre-Deployment Obligations ..............................................................................9
Obligations during Deployment (and Derogations).........................................10
Obligations after the Operation.......................................................................11
Conclusion ........................................................................................................1213
3. Juridification of the British Armed Forces and Efforts to Fight Back: What Are
the Options? ................................................................................................................14
Introduction..........................................................................................................14
Juridification Process............................................................................................14
Strategic Approaches to Addressing Juridification ..............................................17
Reversing the Juridification Process.................................................................17
Eliminating Legal Complexity and Uncertainty................................................18
Mitigating Complexity and Uncertainty...........................................................18
Proposed Solutions...............................................................................................18
Conclusion ............................................................................................................20
4. Conclusion .............................................................................................................21
About the Authors.......................................................................................................22
About the Project ........................................................................................................23
1
Human Rights and Military Operations
Executive Summary
The present report summarizes the
proceedings of a workshop on ‘Human
Rights and Military Operations: Confronting the Challenges’ held on 6
February 2015 at the University of the
West of England.
The proceedings confirmed that the
application of international human
rights law, in particular the European
Convention on Human Rights, to deployed operations presents significant
legal and practical challenges to the
armed forces. The proceedings also
confirmed, however, that confronting
these challenges requires a nuanced
approach, as the nature of the problem neither demands nor admits of an
absolute solution.
In this respect, some participants felt
that the continued focus on the
applicability
of
the
European
Convention might divert attention
from engaging with the question of
the application of its provisions in the
context of deployed operations. Both
2
of these issues merit attention. The
participants also considered that the
question of derogations under Article
15 of the European Convention nonetheless remains relevant in this context. The participants agreed that
developments in the legal framework
governing overseas military operations
over the last two decades, including
the growing prominence of international human rights law, cannot be reversed, but only influenced. The adverse effects of these developments,
in particular the increased complexity
and uncertainty of the law, therefore
cannot be eliminated, but only
mitigated. Flexibility and adaptability
are key.
The workshop formed part of a research project on ‘Clearing the Fog of
Law: The Impact of International Human Rights Law on the British Armed
Forces’, supported by the British Academy.
Human Rights and Military Operations
1.
Introduction
On 6 February 2015, the University of
the West of England hosted a Workshop entitled ‘Human Rights and Military Operations: Confronting the Challenges’. The purpose of the workshop
was to provide a forum to examine the
impact of human rights law, and more
particularly the European Convention
on Human Rights (ECHR), on military
operations conducted by British
armed forces abroad. The workshop
focussed on the challenges facing the
UK in light of the jurisprudence of the
European Court of Human Rights and
the interrelationship between international human rights law and international humanitarian law. The participants consisted of 15 subject matter
experts. To facilitate a frank and open
dialogue on the applicability and
application of human rights in military
operations, the workshop was subject
to the Chatham House Rule. The event
formed part of a research project
entitled ‘Clearing the Fog of Law: The
Impact of International Human Rights
Law on the British Armed Forces’, supported by the British Academy. For
more information about this project,
see page 23 below.
The workshop organisers, Dr Noëlle
Quénivet (University of the West of
England) and Dr Aurel Sari (University
of Exeter), briefly introduced the project and its aims so as to contextualise
the discussion. The morning session
set out to provide an overview of the
cases brought before the European
Court of Human Rights involving the
British armed forces and to highlight
the challenges posed by the Court’s
jurisprudence. The afternoon session
was dedicated to examining the more
general trend of juridification of military law and the possible solutions to
maintain the operational freedom of
the armed forces. The morning and
afternoon presentations served as a
jumping board for debate, allowing
participants to interact at any stage.
The purpose of this report is to provide a record of the current state of
the law and the challenges it poses to
military operations as perceived by
the workshop participants. 1 As such,
the report reflects the discussions
which took place at the workshop and
must be read in the light of the following notes of caution. The report does
not aim to present a comprehensive
analysis of the field, but covers only
subjects which were addressed during
the discussions. It provides the reader
with an overview of a variety of opinions expressed during the event.
Where the group came to a strong
majority position or even a consensus
on a particular issue, the report indicates so. However, not every participant, including the organisers, necessarily share all the views identified in
The organisers would like to thank Olivia
Curtis for taking notes during the discussions
and thus allowing this report to be written.
1
3
Human Rights and Military Operations
this report nor do these views necessarily reflect the position of any
institution. Like any lively exchange of
thoughts among subject matter
experts, the discussions did take sharp
and occasionally unexpected turns and
not all the questions raised were
4
settled conclusively by the group. The
report does not make a sustained
effort to reconcile the views expressed
by the participants where these have
diverged or to provide a conclusive answer to the questions left open during
the discussion.
Human Rights and Military Operations
2. The Services v Strasbourg: The UK Armed
Forces in the European Court of Human Rights
Introduction
Dr Noëlle Quénivet began by introducing 31 cases, spanning from 1978
(Ireland v UK) to 2014 (Hassan v UK),
which involved members of the British
armed forces and which were brought
before and decided by the European
Court and the European Commission
of Human Rights. The primary objective of this review of the case-law was
to provide a clearer overview of inter
alia the types of applicants involved,
the litigation grounds and the types of
circumstances examined.
Overview of the Cases
Whilst the number of cases brought in
the 1970s and 1980s was minimal, a
clear increase can be identified from
the 1990s onwards. One participant
wondered whether a correlation with
the adoption and implementation of
the Human Rights Act 1998 could be
established. Bearing in mind that cases
were brought from the beginning of
the 1990s onwards, it was difficult to
draw definite conclusions. Yet, this
matter needed to be examined to
understand why cases pleaded in the
Cases
2010
20%
2000
45%
1990
32%
UK legal system were unresolved from
the applicant’s perspective and thus
resulted in being argued before the
Court in Strasbourg. Another participant also pointed out that in this respect more attention should be paid
to the adoption of the Charter of
Fundamental Rights of the European
Union, as it would have further impact
on British laws relevant to the armed
forces.
Remarkably, the majority of the applicants in these 31 cases were (former)
members of the armed forces or their
relatives. This categorisation (Ministry
of Defence (MoD) personnel and relatives, non-MoD personnel and relatives) was rather helpful to distinguish
between the different types of situations brought before the ECHR bodies.
With regard to Ministry of Defence
personnel and their relatives, all cases,
with no exceptions, fell within three
groups:

cases involving discrimination
against the service personnel on
the basis of sexual orientation and
their subsequent dismissal from
Applicants
1970
3%
1980
0%
MoD
person
nel
58%
NonMoD
39%
State
3%
5
Human Rights and Military Operations


the forces (Article 8 ECHR pleaded
alone or combined with Article 14
ECHR; violation of Article 8 ECHR
found);
cases relating to the operation of
the military justice system (Articles
5 and 6 ECHR pleaded; violation of
Articles 5 and 6 ECHR found);
cases relating to scientific tests
carried out on service personnel
(Articles 2, 3, 6, 8, 10, 13 and 14
ECHR pleaded; violation of Article
8 ECHR found).
The pattern of the first two groups of
claims was similar. A first applicant
raised the issue before the Court
which declared a specific rule to violate the Convention. Further claims
were then initiated by applicants in a
similar situation, resulting in the UK
being repeatedly found in violation of
the Convention for the same rule. The
UK then amended the law or repealed
the act in contravention of the
Convention, thereby stemming the
flow of cases brought before the Strasbourg bodies. This shows that the
Court will continue to pronounce the
UK in violation for as long as the
domestic law or measure in question
is not repealed or otherwise brought
in conformity with the Convention.
With regard to applicants unrelated to
the Ministry of Defence, their grievances fell within two groups:


the situation in Northern Ireland;
the situation in Iraq.
One participant mooted that as the
number of human rights proceedings
against the armed forces for acts committed in Afghanistan increases, undoubtedly a number of cases will find
their way to Strasbourg in the next
6
few years, provided they were not
dealt with at the national level to the
satisfaction of the applicant.
Understanding the
Distinction between
Operations in Northern
Ireland and Abroad
Dr Quénivet observed that whereas
the armed forces seemed to be concerned about the recent cases relating
to their deployment in Iraq, they
seemed to be less concerned when
they were facing similar claims in the
context of Northern Ireland. In fact,
the articles pleaded and violated before the European Court of Human
Rights in relation to the situation in
Northern Ireland and Iraq were rather
similar, with the exception of Articles
5 and 6, which had been successfully
pleaded in cases relating to Iraq, but
not Northern Ireland:


Northern Ireland: pleaded Articles
2, 3, 5, 6, 8, 10, 13, 14 and 34
ECHR; violations of Articles 2, 3, 8,
13 and 34 ECHR;
Iraq: pleaded Articles 2, 3, 5, 6, 13
and 34 ECHR; violations of Articles
2, 3, 5, 6, 13 and 34 ECHR.
Bearing this in mind, the question
arises whether there is a fundamental
difference between the deployment of
British troops abroad and their deployment at home, which would explain
these different levels of concern? Dr
Quénivet jumpstarted the debate by
giving the participants two fictional
stories, one inspired by a case involving an operation in Northern Ireland
and another being the same case,
though adapted to a fictional overseas
deployment. Based on this, the partici-
Human Rights and Military Operations
pants identified a number of relevant
differences:


The extra-territorial application of
human rights law and especially of
the ECHR.
Differences between operations in
a law enforcement context and operations in armed conflict. The
situation in Northern Ireland was
one of internal disturbances which
was more static and did not reach
the threshold of an armed conflict.
Thus only a human rights law
“...undoubtedly a number
of cases will find their way
to Strasbourg in the next
few years.”

framework applied. In contrast,
the situation in Iraq was one of an
armed conflict, where the situation
often quickly moved from a conduct of hostilities to a law enforcement framework and back. In
the
afternoon
session
the
interrelationship between international human rights law and
international humanitarian law
was debated at length.
Manpower. After an incident
engaging Article 2 ECHR, the
armed forces must effectively secure the area to collect the evidence and ensure that it is not
tampered with. In an armed conflict, having a sufficient number of
personnel available is at best a
challenge and, in some cases,
unrealistic, if not impossible. In
peacetime, securing the area for

investigation is much easier.
Existence of an established rule of
law framework. Participants noted
that it was easier to abide by the
procedural (including practical and
investigative) aspects of Article 2
ECHR in Northern Ireland, as the
armed forces relied on domestic
law and were acting at home, in a
context they knew well. In contrast, operating in a State such as
Iraq where rule of law structures
are severely weakened or absent
complicates the task of the military
in relation to the application of human rights law. As the law seems
less clear in the latter context,
members of the armed forces are
more likely to do what is feasible
on the best interpretation of what
the unsettled legal position is. This
explains why applications relating
to operations in Northern Ireland
for violations of Articles 5 and 6
ECHR were unsuccessful. In contrast, the UK has been found in
violation of these articles in relation to the conflict in Iraq. A number of possible explanations were
mentioned. First, the legal basis
for detention was clearly established in the context of Northern
Ireland. It was less so in relation to
Iraq or Afghanistan. Moreover, until recently the legal basis for
detention had not been questioned. Second, due to the evolving case-law of the European Court
of Human Rights, the standards
imposed under Articles 5 and 6
ECHR are now higher. Likewise, the
legal framework regulating the
condition of detention in Northern
Ireland was well-defined whereas
in Iraq and Afghanistan the
concomitant application of the law
of the host State complicated such
7
Human Rights and Military Operations


8
matters. Again, it was noted that
until recently such issue had not
been considered as problematic, in
particular where there was an
established interface with domestic law institutions.
Multinational operations. The
close collaboration with other
armed forces, such as those of the
US and Australia, poses certain
challenges relating to the application of human rights law. Indeed,
whilst the UK is bound by the
ECHR, other coalition partners may
not. Being bound by a different set
of laws leads to some operational
constraints on the part of the UK.
That being said, whilst the US and
the UK are adopting different
methods – the US is deploying a
reputational approach and the UK
a legal approach – the end result,
that of a minimising of casualties
and damages (be they military or
civilian), is the same. As a result,
the two States work well in tandem.
The human rights obligations of
host States. The host State might
not be bound by international human rights instruments or only by
some. Do British forces have to
comply with the local laws even if
they violate the UK’s obligations
under human rights law? This
again raises a number of questions.
Some similarities between the involvement of the armed forces in Northern
Ireland and in Iraq/Afghanistan were
also pointed out, such as the use of
lethal force by the armed forces, their
role in preventing criminal activities,
the use of detention as a security
measure (often for preventive purposes), the hostile/unfriendly environment in which they were conducting
their operations, and the scale of their
tasks and the limited nature of the resources available to carry them out.
Centrality of Article 2 ECHR
in Military Operations
Attention was then drawn to Article 2
ECHR. The centrality of this article in
relation to military operations cannot
be denied. First, it must be noted that
cases in which the UK was found to
have breached Article 2 ECHR focused
on the planning of the operation
(McCann v UK) and the investigation
stage, but not on the (un)lawful killing
itself, ie the actions of the soldiers. In
other words, the European Court of
Human Rights has criticised the UK for
failing to abide by the procedural,
rather than the substantive,
requirements of Article 2
ECHR. The participants agreed that
there were inherent
limitations in conforming to Article 2
ECHR obligations.
Amongst the practical constraints mentioned were the lack
of manpower and
Human Rights and Military Operations
the lack of effective control over the
foreign territory in which British forces
may operate.
The participants also debated whether
there were any justifications for failing
to fulfil such obligations. One participant mooted that there should be a
threshold of applicability of Article 2
ECHR. In other words, Article 2 ECHR
should only be engaged when the
armed forces are in control of the
territory and able to engage and take
on the responsibilities enshrined in
that provision. A discussion on the difference between the inability and the
unwillingness of the authorities to
comply with such requirements then
ensued. Maybe such a test (eg unable
v unwilling) should be introduced
when deciding not on the applicability,
but on the application of Article 2
ECHR. Put differently, is it reasonable
or even possible in a hostile environment to expect the forces to abide by
the procedural requirements of Article
2 ECHR, given the circumstances? This
may be contrasted with the Turkish
cases brought before the Court, where
the State had been unwilling to fulfil
its Article 2 ECHR obligations. One
participant pointed out that the
Afghan cases that are likely to find
their way to the European Court of
Human Rights will no doubt prove
that, assuming the Court finds the
Convention to be applicable, the
military has endeavoured to fulfil its
Article 2 ECHR obligations to the best
of its ability and has constantly
adapted its policies and practices in
light of case-law stemming from either
national or European courts. In this
context, flexibility is key. Certainly, in
the eyes of the participants,
willingness should be considered as a
key factor to determining whether the
armed forces have acted in conformity
with Article 2 ECHR. Further, there
seemed to be agreement amongst the
participants that willingness must be
assessed in light of the circumstances.
Putting too onerous a burden on the
armed forces will be viewed as
unrealistic or unachievable by service
personnel, all the more as in some
circumstances it might put their lives
as well as the lives of civilians in
danger.
Obligations under Article 2
ECHR
To further explore the Article 2 ECHR
obligations, Dr Quénivet proceeded to
examine such duties in a chronological
manner: prior to the deployment of
the armed forces, during the deployment, and after the deployment (ie at
the investigation phase).
Pre-Deployment Obligations
Two issues emerge with regard to Article 2 ECHR obligations relating to acts
prior to the deployment of a military
operation: planning the operation and
training the individuals taking part in
the operation.
9
Human Rights and Military Operations
The McCann case is no doubt the most
suitable basis for discussion, since the
operation was carried out by members
of the armed forces. In that case, the
European Court of Human Rights attached particular importance to the
fact that an opportunity to arrest the
individuals had not been taken. The
participants acknowledged that as the
operation was not undertaken in an
armed conflict, a law enforcement,
rather than a conduct of hostilities,
paradigm was indeed applicable.
Could the requirements set out by the
Court be transferred onto military
operations in the context of active
hostilities? Would such requirements
be identical? Many participants expressed concern over a complete
transfer of the principles and standards applied in McCann to combat
situations, bearing in mind that the
circumstances are wholly different. It
was argued that the application of the
law enforcement paradigm in such
situations would neutralise the ability
of the armed forces to act as a military
force engaged in an armed conflict.
That being said, it was acknowledged
that even in the context of armed conflict, the armed forces capture
individuals, rather than lethally target
them, although in many instances capture was not a feasible option. Here
the participants mentioned the killing
of Bin Laden, though stressed the
specificity of that case. It should be
noted as levels of violence in theatre
fluctuate it is difficult to determine
which legal framework is applicable
and, in particular, whether the ECHR
applies..
The European Court of Human Rights
also stated in McCann that all assumptions about the individuals to be arrested and their activities must be
10
thoroughly reviewed. One participant
enquired about the threshold of evidence required to arrest and charge a
person. How much evidence would be
sufficient in the context of combat
operations?
In the McCann case, the European
Court of Human Rights examined the
kind of training given to the military
forces deployed and, especially,
whether they had experience of training and use of weapons in a law enforcement context. The overall experience of the individuals deployed was
also assessed. The participants agreed
that in light of the thorough training
and instructions given to members of
the armed forces, complying with this
training requirement should not be
overly difficult.
Human Rights and Military Operations
Obligations during Deployment
(and Derogations)
As mentioned earlier, cases brought
against the British armed forces never
found the UK in violation of the
substantive obligations under Article 2
ECHR (in Al-Skeini and others v UK the
applicants did not even raise such
claims). Dr Quénivet nonetheless reminded the participants that in cases
brought against Russia, the European
Court of Human Rights had reviewed
steps taken in the conduct of operations against the standards of the
ECHR, such as the lawfulness of the
use of certain weapons and the importance of minimising the use of lethal
force. Dr Quénivet pointed out that in
these cases, the Court had rather surprisingly used a language close to that
of international humanitarian law,
referring notably to civilians, conduct
of hostilities, and the principle of
distinction. The Court relied on a
stricter standard of review than what
is found in international humanitarian
law, which uses a test of excessive use
of force against civilians and civilian
objects ‘in relation to the concrete and
direct military advantage anticipated’
(Article 51(5) Additional Protocol to
the Geneva Conventions of 12 August
1949, and relating to the Protection of
Victims of International Armed Conflicts).
One participant observed that although the conflict in Chechnya could
be classified as a non-international
armed conflict, Russia had not derogated from the ECHR. It was thus not
possible to claim before the Court that
an international humanitarian law
framework was applicable. The UK had
never argued that Article 15 ECHR, the
derogation provision, was applicable
in situations of an armed conflict
abroad. It had however done so in
relation to the situation in Northern
Ireland. One participant stressed that
the traditional view was that Article 15
ECHR could only be invoked in situation of a war threatening the life of
the nation. This could not necessarily
be said of recent military operations
abroad as, for example, it is unclear
whether the situation in Iraq or in Afghanistan did threaten the life of the
British nation within the meaning of
Article 15 ECHR. This led the participant to ask whether derogations were
available in an extra-territorial setting.
Opinion on the matter was split. Some
participants contended that the ECHR
should not apply extra-territorially, an
argument rebutted by another participant who pointed out that a reversal
in the Court’s jurisprudence was
unlikely. Another group of participants
surmised that maybe not enough consideration had been given to the applicability and potential utility of the
derogation provision in the context of
extra-territorial deployments.
Obligations after the Operation
As the European Court of Human
Rights has found the UK (as well as
other States) to have breached the
procedural requirements of the ECHR
in the wake of a military operation,
much attention was devoted during
the discussion to considering the reporting and investigatory duties of
States. The European Court of Human
Rights has clearly stated that such procedural obligations exist even in difficult security conditions, including in an
armed conflict (see Jaloud v The
Netherlands).
11
Human Rights and Military Operations
The discussion turned to after-incident
reports and their use by the armed
forces. In particular, such reports assist the armed forces in holding their
members accountable against internal
rules and procedures. If such internal
rules and procedures, which reflect
the current law and the best practice
at the time, are found to be deficient,
they can be reformulated, thereby
facilitating the internal review process.
Such reports enable the armed forces
to learn valuable lessons by identifying
areas of concern and training needs. It
was also noted that there are review
procedures in place for more serious
and complex matters where an
investigation might be warranted.
Such internal rules are not a substitute
for the law, they only assist in the
implementation of the law.
With regard to the investigation, a
number of participants noted that
compliance with the procedural aspects of Article 2 ECHR imposes an
onerous responsibility on the armed
forces, all the more as their size is
shrinking and thus fewer individuals
are able to carry out activities required
by Article 2 ECHR. The size of the police forces in conflict zones is also too
small for such forces to be promptly
deployed.
As the investigation must be effective,
ie able to determine whether the
force used was or not justified in the
circumstances and, if not, to identify
and punish those responsible (Hugh
Jordan v UK), military police must be
able to carry out their duties in an
unimpeded manner. While the duty to
carry out an effective investigation is
not an obligation of result, but of
means, complying with this duty is
easier said than done. For example,
12
carrying out an effective investigation
in a hostile environment may pose
personal risks to the military personnel involved and to the surrounding
civilian population.
Similarly, operating in another State
means that the UK must cooperate
with the local authorities which may,
for example, deny access to certain
areas and persons or claim jurisdiction
over specific individuals. In the recent
case of Jaloud, the European Court of
Human Rights conceded that some
leeway should be granted to a respondent State owing to the fact that it
was operating in a foreign State that
was being rebuilt and whose language
and culture was alien to the armed
forces and investigators, and whose
population included hostile elements.
Undoubtedly, the Netherlands, which
was the respondent State in that case,
“...a point of concern … is
the lack of clarity of the
law as it develops by way
of case-law.”
faced a range of practical difficulties in
carrying out an effective investigation.
For example, one participant pointed
out that Dutch personnel attempted
to attend the autopsy of the person
shot by the Dutch forces, but the Iraqi
authorities prevented them from doing so. The European Court of Human
Rights then held that the Netherlands
had failed to take all necessary steps
to ensure that the autopsy met the
standards required for an effective
investigation. Another participant argued that one of the reasons the
Human Rights and Military Operations
Netherlands might not have been able
to explain its position well was probably because it had focused too much
on the applicability of the Convention
and jurisdictional issues rather than on
the application of Article 2 ECHR. As a
result, it may not have been in a position to present the full arguments to
support its position.
In this context, one participant wondered why the UK had not taken this
opportunity to intervene as a third
party and spell out its own position.
After all, such cases present a unique
occasion for States facing similar challenges in similar circumstances to
shape the jurisprudence of the Court.
It was pointed out in discussion that
such interventions might be used in
later cases against the States making
such briefs.
Conclusion
A point of concern among the participants is the lack of clarity of the law as
it develops by way of case-law. What
is more, as each situation in which the
armed forces operate is different (in-
cluding the intensity of the fighting,
authorisation by the United Nations
Security Council, laws of the host
State, and multinational operations),
finding a one-size-fits-all policy is
problematic, if not impossible. As a
result, the armed forces constantly
need to review their policies and
procedures, but so far the armed
forces have shown that they can adapt
to new legal challenges. Flexibility is
the key word.
Towards the end of the session, the
view was expressed that the
continued focus on the applicability of
the ECHR might divert attention from
engaging with the question of the
application of its provisions. In this
respect, some participants suggested
that it might be time to consider
accepting
the
Convention’s
applicability in certain circumstances,
so as to enable the UK to argue cases
before the Court in a more effective
fashion. This in turn would open the
door to making derogations in such
circumstances.
13
Human Rights and Military Operations
3. Juridification of the British Armed Forces and
Efforts to Fight Back: What Are the Options?
Introduction
The afternoon session focused on the
policy options and practical means
available to deal with the challenges
presented by the applicability and
application of human rights law (and
more specifically the ECHR) in military
operations. Dr Aurel Sari began by explaining that there was no point in
fighting the juridification of the armed
forces as such. Rather, it made more
sense to understand the nature and
extent of the challenges it presents
and then investigate possible solutions.
Juridification Process
The concept of juridification was introduced into the present debate by
Professor Gerry Rubin in an article
published in 2002 in the Modern Law
Review to describe the development
of military law in the United Kingdom.
According to Rubin, juridification went
through three stages of development.
In the mid-19th to 20th centuries, the
armed forces enjoyed a position of
relative autonomy from the rest of
society. Whilst they were subject to
civilian standards and remedies in the-
mid-19th to 20th
centuries
• Autonomy
14
ory, in practice, the impact of civilian
legal oversight over the armed forces
was minimal. From the 1960s onwards,
successive
governments
progressively aligned the legal standards and procedures applicable to the
military with those applicable in civilian life, setting in motion a process of
civilianisation. In the 1990s, a third
phase, the juridification phase, started
whereby civilian standards and oversight mechanisms were increasingly
imposed upon the armed forces without their consent and approval. In his
work, Rubin thus describes civilianisation as a consensual and internal process, whilst he characterises juridification as a non-consensual and externally driven development. Dr Sari argued that this distinction between
juridification and civilianisation is not
persuasive for a number of reasons,
notably because the pluralism that
now characterises the legal framework
of the armed forces does not support
such sharp distinctions between
consensual and non-consensual processes and between their internal and
external dimensions. For analytical
purposes, it is therefore preferable to
retain the term juridification as the
overall concept describing the growing
1960s
• Civilianisation
1990s
• Juridication
Human Rights and Military Operations
extension of legal rules into the sphere
of military autonomy and the increased density of these rules.
It is clear that the process of juridification, including the growing impact of
“...the growing impact of
international human rights
law poses significant legal
challenges to the armed
forces.”
international human rights law, poses
significant legal challenges to the
armed forces. However, Dr Sari noted
that the true nature and extent of
these challenges and their effect on
operational effectiveness are not
clear. In particular, it is important to
distinguish between the actual adverse consequences of legal constraints on operational effectiveness
and their perceived consequences.
Much of the evidence for the adverse
impact of international human rights
law on the armed forces is of an
anecdotal nature. In this respect, the
participants agreed that international
human rights law has significantly affected the way in which the armed
forces conduct their business, for instance in the field of military justice
and the rules governing the sexual
orientation of serving personnel. They
also noted that international human
rights challenges seem to have had
only a relatively limited impact on
operational effectiveness in many areas, thanks to the ability of the armed
forces to adapt. Nevertheless, in other
areas their impact has been more sub-
stantial, as the Serdar Mohammed
case illustrates.
Dr Sari then stressed that the law now
extends into previously unregulated
areas and that the growing density of
the law, including the proliferation of
oversight mechanisms, has contributed to the impression that juridification might have gone too far. The AlSaadoon and Mufdhi case was mentioned by one participant as a good
example of how legal, rather than policy, considerations are sometimes
prioritised.
The participants also emphasised that
States seem to have fewer opportunities and less leeway in shaping the law
that applies to their armed forces on
the national and international level.
This means that the Government has
fewer options to effect change and
address unwelcome developments in
the regulatory framework.
15
Human Rights and Military Operations
The participants also considered the
relationship between domestic and
international law and the relationship
between legal and social change. In
this context, some of the participants
observed that certain sections of civil
society seem to pursue a clear litigation strategy against the armed forces,
thereby affecting the way we look at
(international) security, which is now
increasingly viewed from a human
rights prism. One participant questioned whether the application of human rights abroad would not lead to
some form of ‘human rights imperialism’, as the armed forces are obliged
to comply with the ECHR in territories
that do not belong to the legal space
of the Convention. Does this mean
that armed forces are exporting European human rights to other territories? Whilst human rights are understood to be universal values and their
application abroad should be welcome
as a means to disseminate human
rights law, it was also pointed out that
it was a European variant that was being spread. One participant observed
that, by contrast, international
humanitarian law does not know of
regional variants and its application in
theatres like Afghanistan and Iraq did
not raise the same difficulties. In re-
16
sponse, another participant noted that
there seems to be a growing tendency
to view international humanitarian
law from a religious perspective. For
example, a number of courses in
international humanitarian law integrate religious elements, so as to appeal to a wider audience.
The role and influence of military legal
advisers was stressed at several points
in the discussion. One participant observed that in the 1960s civilian practitioners joined the services as lawyers
and injected civilian standards into the
military legal system and in particular
into the military justice system. It was
also highlighted that human rights
litigation had prompted changes to
practices which at the time did not enjoy unqualified support within the
armed forces, such as discrimination
based on sexual orientation, and that
these changes had in fact been quickly
accepted by the armed forces. It was
also noted that for the latest generation of lawyers, the Human Rights Act,
and human rights considerations more
generally, have been part of their
professional life from the outset. Bearing in mind the complexity of the legal
and practical questions raised by the
application of human rights law to deployed operations, it
was recognized that
there is a need to train
constantly
military
legal advisers in this
specific area. However, another participant explained that
training
cannot
provide for every
eventuality and, if the
law
changes
too
quickly, violations are
likely to happen.
Human Rights and Military Operations
The group then turned its attention to
the extra-territorial applicability of
human rights law, noting that the
application of human rights obligations in deployed operations presents
concrete, practical difficulties. The discussion quickly moved to the interrelationship between human rights law
and international humanitarian law.
The point was made that international
humanitarian law is strengthened by
human rights law in the sense that
human rights law obliges the armed
forces to establish robust procedures
and safeguards. The participants
nevertheless agreed that there are
instances where the two legal regimes
clash and where the scope for
normative compromise is limited or
non-existent. Likewise, the participants raised the issue that it should be
possible to strengthen the application
of international humanitarian law by
an application of the lex specialis
principle. After all, a number of courts
have used this principle to solve methodological problems. However, one
participant pointed out that this
principle is not as well established in
international law with regard to the
interrelationship between international humanitarian law and human
rights law as it is often claimed.
Strategic Approaches to Addressing Juridification
Further thoughts were given to adopting a more strategic approach to dealing with the challenges caused by the
juridification. Three strategic options
were examined.
Reversing the Juridification
Process
It was agreed that it would be hard, if
not impossible, to reverse the
juridification process, as it is not a
deliberate process. One participant
drew a parallel to the 9/11 attacks,
pointing out that the attacks led to
major changes in international law and
even a shift in paradigms. Fundamental changes of this nature could not be
made or reversed deliberately. If this
is so, the group debated whether it
would be possible to slow down the
process or maybe steer it. While this
may be a more realistic aim than attempting to reverse juridification, the
participants noted that human rights
standards and discourse have become
Strategic approaches to
addressing juridification
Reversing the
juridication process
Eliminating legal
complexity and
uncertainty
Mitigating complexity
and uncertainty
17
Human Rights and Military Operations
an integral part of the legal environment. For example, even if the UK
were to withdraw from the ECHR, it
would still remain subject to human
rights obligations deriving from other
sources of law. Human rights have also
entered common law. One participant
stressed that the ECHR would apply
via the EU Charter on Fundamental
Rights (unless the UK withdrew from
the European Union too). Consequently, the chances of stopping
juridification in this area appear to be
limited.
Eliminating Legal Complexity and
Uncertainty
The participants agreed that it is the
very nature of law to be formulated in
an abstract and general manner as it is
meant to apply to a variety of situations. As a result, the application of
the law to specific circumstances can
be uncertain. Legal systems and regimes, be they national, European or
international, are social processes. As
such, they need to be flexible to fit
changes in society, which constitutes a
further source of uncertainty. The
application of the law is therefore riddled with complexity and uncertainty.
Yet, it is the job of lawyers, courts and
other legal actors to navigate these
difficult waters.
Mitigating Complexity and
Uncertainty
It was agreed by the participants that
the only true option is to mitigate the
complexity and uncertainty of the law.
For example, this could involve a
systematic engagement with international human rights law in order to
balance the legal requirements against
military considerations. The partici-
18
pants also agreed that a comprehensive approach employing all available
means and methods needed to be
adopted to pursue this aim.
“...the only true option is
to mitigate the complexity
and uncertainty of the
law.”
Proposed Solutions
This led into examining the various
means and methods that can or could
be used to mitigate the complexity
and uncertainty of the law. Dr Sari led
the discussion by introducing the array
of relevant measures identified in the
public debate, in particular by the
House
of
Commons
Defence
Committee’s report on ‘UK Armed
Forces Personnel and the Legal
Framework for Future Operations’.
Fighting each case vigorously. All participants agreed that legal challenges
brought against the armed forces in
the courts need to be fought vigorously where appropriate. That being
said, a number of participants suggested that fighting the applicability of
the ECHR in the context of deployed
operations may no longer be an effective litigation strategy in particular
cases. Given the stage of development
in the European Court’s case-law,
some participants therefore thought
that it would be better to focus on the
application of the Convention in specific cases.
Human Rights and Military Operations
Applying for derogations. There was
disagreement amongst the participants as to whether derogations
would be permitted in extra-territorial
situations, in particular where armed
forces were deployed abroad in the
context of a non-international armed
conflict. One participant explained
that in the light of the Hassan case, it
might not be necessary to apply for
derogations, for international humanitarian law is being considered by the
European Court of Human Rights as an
international rule assisting in the interpretation of the Convention. Others
expressed the opinion that we should
not so easily dismiss the possibility to
enter derogations under Article 15
ECHR. Two reasons were adduced: it is
not possible to know whether the
Court would have drawn similar
conclusions if the facts of Hassan
would have occurred in a non-international armed conflict and it cannot be
taken for granted that the Court will
not reverse its own jurisprudence in
future cases.
Using domestic law to prevent the
application of human rights law. One
of the proposals mooted was that Parliament should revive the relevant
provisions of the Crown Proceedings
Act, restoring the principle of combat
immunity. This suggestion was rejected by the participants as impractical, since the European Court of Human Rights would continue to review
such cases, irrespective of the existence of such domestic law.
Strengthening international humanitarian law. Since international
humanitarian law does not have a
mechanism that enables individuals to
bring claims against the armed forces
to seek redress for alleged violations
of international humanitarian law, human rights law is often used as an
alternative mechanism. This suggested
that strengthening the implementation and enforcement of international
humanitarian law may indeed assist in
meeting the challenges posed by human rights litigation. Another point
made was that it would be beneficial if
judges, both national and European,
would recognise the role played by
international humanitarian law in
armed conflict and would receive
19
Human Rights and Military Operations
appropriate training in this branch of
international law.
Affirming the primacy of international
humanitarian law. Whilst affirming the
primacy of international humanitarian
law was welcome by the participants,
it was also noted that human rights
law
complements
international
humanitarian law.
Evidence base. All participants agreed
that more evidence of the impact of
human rights law was needed so as to
craft an effective, tactical and strategic
reply to address the relevant challenges. Amongst such challenges are
the detention and targeting of
individuals, the transfer of detainees
and post-incident investigations. Further, it was noted that the armed
forces should not lose sight of the issue of interoperability.
Strategic Defence and Security Review.
The participants opined that the
Strategic Defence and Security Review
was not an appropriate mechanism to
deal with the challenges caused by the
applicability and application of human
rights law in military operations
abroad.
Legal training and advice. Whilst the
participants agreed that enhancing
legal training across the armed forces
and increasing access to legal advice
were helpful, some participants ex-
20
plained that it is only possible to train
individuals in areas where the law is
clear and certain. It becomes complicated, if not impossible, to train individuals in grey legal areas. It was
stressed that training must be offered
at all levels and in a diverse manner so
as to facilitate the acquisition of the
relevant legal knowledge.
Conclusion
The participants agreed that the
juridification process could not be
stopped. However, it could perhaps be
steered so that changes in the law do
not feel imposed on the armed forces.
The armed forces have learned that
they need to be flexible and constantly
adapt to respond to a dynamic operational environment. The participants
agreed that in many instances the
armed forces should be able to adapt
in a similar fashion to a dynamic legal
environment, including the changing
case-law of the European Court of Human Rights.
Many participants supported a
strengthening
of
international
humanitarian law which, they hoped,
would lead to fewer cases being
brought against the armed forces under human rights law. The derogation
clause in the ECHR was also viewed as
an option that needed to be given further consideration.
Human Rights and Military Operations
4.
Conclusion
By way of conclusion, the authors of
the present report offer the following
thoughts and reflections. 2 The
proceedings have confirmed that at
this stage a better understanding is
needed of the practical implications of
the human rights obligations applicable the UK armed forces deployed
abroad.
Interestingly, the concept of military
effectiveness was barely broached in
the discussions. Rather, the participants focused on the relationship be-
The following key lessons and points
have emerged from the workshop.



“...a better understanding
is needed of the practical
implications of the human
rights obligations
applicable the UK armed
forces deployed abroad.”
tween international humanitarian law
and human rights law more generally.
Whilst some participants wished for
the supremacy of international
humanitarian law to be declared,
other participants, adopting a more
conciliatory approach, accepted that
human rights law was also a relevant
legal framework that needed to be
taken into account to determine the
lawfulness of the actions of the British
military forces.

More work needs to be carried out
so as to clarify the legal framework
of deployed operations, in particular in relation to detention,
targeting, the transfer of individuals and post-incident reports.
The UK should continue to invest
in the training of its armed forces,
as
constant
flexibility
and
adaptability is needed to confront
the legal and practical challenges
outlined in this report.
While litigating the applicability of
international human rights law to
overseas military deployments remains relevant in many cases, this
should not detract attention from
engaging with the modalities of its
application in this context. The
Strasbourg Court’s judgment in
Hassan underlines the prospects
and challenges of such an engagement.
With the foregoing in mind, it
remains relevant to explore the
applicability and utility of Article
15 ECHR, the derogation provision,
in extra-territorial settings.
Accordingly, these conclusions are those
of the authors.
2
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Human Rights and Military Operations
About the Authors
Dr Noëlle Quénivet is an Associate Professor in International Law at the Department
of Law of the University of the West of England (United Kingdom). Prior to holding
this position she worked as a Researcher at the Institute for International Law of
Peace and Armed Conflict (Germany) where she taught on the MA in Humanitarian
Assistance (NOHA) and the MA in Human Rights and Democratisation (EMA). Outside of higher education, she teaches for the International Association of Professionals in Humanitarian Assistance and Protection and has previously been involved in
the delivery of classes to members of the Red Cross and Red Crescent societies, military legal advisers, prosecutors and judges.
She has published several articles relating to international humanitarian law, authored Sexual Offences in Armed Conflict in International Law (2006 winner of the
Francis Lieber Honorable Mention Award) and co-edited two books, one on the
relationship between international humanitarian law and human rights law and
another on international law in armed conflict. Her research focuses on international
humanitarian law, international criminal law, post-conflict reconstruction, and gender and children in armed conflict.
Dr Aurel Sari is a Senior Lecturer in Law at the University of Exeter and a Fellow of
the Allied Rapid Reaction Corps. His research interests lie in the field of public
international law, with a particular focus on the legal aspects of military operations.
He has published widely in leading academic journals on status of forces agreements, peace support operations, the law of armed conflict and other questions of
operational law. Dr Sari maintains close working relationships with the professional
community and lectures regularly on the subject of international law and military
operations in the UK and abroad. He contributes to the work of several international
bodies active in this area, including the ILA Study Group on The Conduct of Hostilities
under International Humanitarian Law and the Committee.
Dr Sari is the founding director of the Exeter Research Programme in International
Law and Military Operations, which provides a focal point for the study of the
international legal aspects of contemporary military operations by bringing together
experts working in this field at Exeter. He is an affiliated member of the Strategy and
Security Institute.
22
Human Rights and Military Operations
About the Project
This occasional paper forms part of a research project exploring the impact of
international human rights law, in particular the European Convention on Human
Rights, on overseas military operations.
Funded by the British Academy, the project aims to develop a more sophisticated
understanding of the challenges posed by international human rights law and its real
and perceived impact on military operations. In doing so, it contributes to an ongoing public and academic debate about the legal regulation of the British armed
forces.
Led by Associate Professor Noëlle Quénivet (University of the West of England Bristol) and Dr Aurel Sari (University of Exeter), the project involves a series of workshops and other research activities over a period of two years.
23