Suspending Human Rights In Wartime: Parliament Wants To Know What You Think

Parliament’s Joint Committee on Human Rights (JCHR) is inviting views on the Government’s proposal to suspend the application of the European Convention on Human Rights in times of armed conflict.

The Government announced its proposal on 10 October 2016. The proposal states:

…[B]efore embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.

What does ‘derogating’ from the Convention mean?

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The European Convention on Human Rights (ECHR) permits States to ‘derogate’ from their human rights obligations in ‘times of war and other public emergency threatening the life of the nation’ (Article 15 ECHR). Derogation has the effect of temporarily suspending a State’s human rights obligations, so that the State’s agents can do certain things in times of war or emergency which would, under normal circumstances, amount to a violation of human rights.

In order for a State to derogate from the ECHR, certain conditions must be complied with. The State derogating from the Convention must inform the other States party to the ECHR of the derogation. Any measures derogating from a State’s normal human rights obligations must be ‘strictly required by the exigencies of the situation’. Some human rights, such as freedom from torture and inhuman and degrading treatment, are ‘non-derogable’, so they cannot ever be derogated from, including in times of war or emergency.

Why does the Government want to derogate?

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The Government has claimed that the legal system is being ‘abused’ by people relying on human rights laws, allowing ‘false charges’ to be levelled against ‘our troops on an industrial scale’.

(Claims against soldiers cannot actually be brought directly under human rights laws: human rights claims can only be made against States – not individual soldiers. But human rights laws can, for example, require States to conduct investigations into allegations of mistreatment or unlawful killings carried out by soldiers, and these investigations might generate evidence which could form the basis of a separate (civil) claim against soldiers.)

The Government has also criticised court cases, both of the domestic courts (for example, the UK Supreme Court in Smith v Ministry of Defence) and of the European Court of Human Rights (for example, in Al-Skeini v UK), which permit human rights laws to apply to the UK’s armed forces acting overseas (‘extraterritorial application’). The Government says that the UK’s armed forces being bound by human rights laws when acting overseas ‘undermines the operational effectiveness’ of the armed forces.

What’s happened since the Government’s proposal?

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The JCHR wrote to the Secretary of State for Defence on 13 October 2016 to ask for clarification of the proposal. The Secretary of State replied on 22 November 2016, stating that many of the JCHR’s questions could not be answered either fully or at all, because the Government had only announced an intention to derogate and is highly reluctant to engage in hypothetical debate in advance of a concrete issue arising in particular circumstances.

The Chair of the JCHR said in response:

If and when that time comes, there is unlikely to be time for proper, considered scrutiny of the Government’s case for derogation. That scrutiny needs to start now, so that Parliament is ready to do its job of rigorously scrutinising the justification for any future derogation.

What does the JCHR want to know?

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The JCHR (rightly) considers derogating from the UK’s international human rights obligations a very serious matter. It therefore wants to make sure that Parliament has chance to review the reasons for any proposed derogation, so that Parliament can be satisfied that any proposed derogation is justified and that the strict conditions to exercise the power of derogation are met.

The JCHR inquiry is looking for views on the following:

  • What evidence is there to support the Government’s view that the legal system is being ‘abused to level false charges against our troops on an industrial scale’?
  • What evidence supports the Government’s view that the extraterritorial application of the Convention is undermining the armed forces’ operational effectiveness?
  • Would the requirements of Article 15 ECHR (such as the requirement that derogation measures be ‘strictly required by the exigencies of the situation’) be satisfied in the circumstances in which the Government intends to derogate?
  • Are there alternatives to derogation which would achieve the Government’s aim of protecting the army against unfounded legal claims?
  • Are there wider implications for the UK derogating from the Convention during overseas armed conflict (such as effects on other countries or on the European system for the collective enforcement of human rights)?
  • Is it appropriate for the Ministry of Defence to have lead responsibility for a policy the purpose of which is to protect the Ministry of Defence from legal claims?

Interested groups and individuals can send in written submissions (up to 3,000 words) to the JCHR here. The deadline for submissions is 31 March 2017. Guidance for writing submissions is available here.

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Soldier images from Pixabay.com. Fighter plane image from Pexels.com.
About the Author

Natasha Holcroft-Emmess

Natasha is part of the RightsInfo volunteer team. She completed the BCL with distinction at Oxford University, trained as a solicitor in London and is currently completing an MPhil in law at Oxford. View all posts by Natasha Holcroft-Emmess.
Suspending Human Rights In Wartime: Parliament Wants To Know What You Think
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