“It is right that we investigate serious allegations but we’ve seen our legal system abused to falsely accuse our armed forces. So we’re taking action… But much of the litigation we face comes from the extension of the European Convention on Human Rights to the battlefield… So I can announce today that in future conflicts we intend to derogate from the Convention.”
Michael Fallon, Defence Secretary, 4 October 2016
"We will never again—in any future conflict—let those activist, left-wing human rights lawyers harangue and harass the bravest of the brave—the men and women of Britain’s Armed Forces.”
Theresa May, 5 October 2016
Is it true that human rights lawyers have “harassed” British troops? And can this be avoided by “derogating” [temporarily drop out of] from the human rights convention?
Human rights law protects civilians abroad
Article 2 of the convention requires states including the United Kingdom to protect everyone’s right to life—although necessary force may be used to defend others from unlawful violence.
The human rights court has interpreted article 2 to mean that states have an obligation to investigate credible allegations of unlawful killing by state agents, such as police officers or troops. Killing the enemy on the battlefield is not unlawful so long as the Geneva Conventions are respected.
Article 1 of the human rights convention requires states to “secure to everyone within their jurisdiction” the rights that the convention guarantees. The government accepts that this obligation applies to prisoners held in custody by British troops on operations such as the one in Iraq from 2003 to 2009.
What’s disputed is whether human rights law protects Iraqis who were not in custody at the time they were shot by British soldiers.
Civil claims for compensation have been brought against the Ministry of Defence by Iraqi civilians who accused British troops of ill-treatment and, in some cases, unlawful killing. According to a recent judgment, more than 250 claims have been settled and more than 640 claims are pending.
Many claimants were represented by Public Interest Lawyers, a solicitors’ firm in Birmingham which closed down at the end of August. It was run by Phil Shiner, who might fairly be described as an “activist left-wing human rights lawyer”. Mr Shiner was once named “Human Rights Lawyer of the Year” by the campaign group Liberty and has reportedly described himself as a “committed socialist”.
But the Prime Minister produced no evidence for her claim that Mr Shiner or any other lawyer harangued or harassed individual troops while representing their clients.
Separate criminal investigations are being carried out as well
It’s possible Theresa May was thinking of investigators working for the Iraq Historic Allegations Team, IHAT. Those investigators, who are ultimately responsible to the Royal Navy Police, are following up claims by Mr Shiner that some British troops committed criminal offences while serving in Iraq. Some soldiers have resented being questioned about events a decade ago.
By the end of August, IHAT had received allegations of potential criminal activity involving 3,367 potential victims. Around half of those allegations have now been rejected.
In September, IHAT referred the cases of a serving major and two soldiers (one retired) to the Service Prosecuting Authority. They are suspected of involvement in the death of a man who drowned in a waterway near Basra in May 2003.
If the Director of Service Prosecutions decides to bring charges—applying tests similar to those used by the Crown Prosecution Service—then the defendants will appear before a a court martial: a military court. They will face charges under English law, which applies to all service personnel throughout the world as a result of UK legislation, currently the Armed Forces Act 2006. This long-established principle has nothing to do with the human rights convention.
The UK can suspend the human rights convention in future, but only if under threat
In “time of war or other public emergency threatening the life of the nation”, a state may derogate, or temporarily withdraw, from its obligations under the human rights convention “to the extent strictly required by the exigencies of the situation”. However, article 15 of the convention says that no derogation is allowed from the right to life, except in respect of deaths resulting from lawful acts of war.
Under section 14 of the Human Rights Act 1998, the secretary of state may order that a derogation applies, in effect, to courts in the United Kingdom.
The government hopes this will protect British troops serving in future conflicts from claims of the kind that have followed recent operations in Iraq and Afghanistan.
As the Defence Secretary and the Prime Minister made clear, a derogation would apply only to a future conflict. And the conflict would have to be one that posed a sufficiently grave threat to the United Kingdom to meet the requirements of article 15.
So it's hard to see how a derogation could be effective if British troops are deployed on future peacekeeping operations abroad and the warring factions do not threaten the life of the United Kingdom.