Tuesday, April 14, 2015

Saving the UK armed forces from defeat by judicial imperialism

A new report entitled "Clearing the Fog of Law: Saving our armed forces from defeat by judicial dictat" (http://www.policyexchange.org.uk/publications/category/item/clearing-the-fog-of-law-saving-our-armed-forces-from-defeat-by-judicial-diktat) charges that human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officer patrolling the streets on a Saturday night in the West End.

The report, published by the Policy Exchange, is authored by Richard Ekins  of Oxford University and Jonathan Morgan of Cambridge and Tom Tugendhat, a former Military Assistant to the Chief of the Defense Staff, General David Richards.  The Executive Summary laments that "The British military is now thoroughly entanged in the net of human rights law - often to the benefit of our country's adversaries."  The report complains that the UK is losing case after case before the European Court of Human Rights (citing Al Skeini (2011), Al Jedda (2011) and Hassan (2014)).  More interesting are the judgments of the UK courts that are applying the European Convention on Human Rights via the 1998 Human Rights Act, such as Al Saadoon (2015), Pritchard (2014) and Smith (2013),  and the domestic litigation is the heart of the authors' discontent since the "spike" in litigation has jumped from 190 claims filed against the Ministry of Defense in 2014 to 1,230 claims by the end of March 2015.  The authors fear that international human rights law is supplanting and undermining international humanitarian law and they want the situation to return to what it was in the past.

The fact that foreign nationals can sue the UK for breach of the European Convention wherever and whenever a British soldier employs force will result in an "excessive degree of caution" on the part of British troops on the battlefield, "which is antithetical to the war-fighting ethos that is vital for success on the battlefield."  Although it was the UK judicial system that forced open the door of the European Court to such an expansive interpretation of extraterritorial jurisdiction, it is interesting that the authors of this well-written but misguided report only recommend that the UK derogate from the European Convention in respect of future armed conflicts, pursuant to Article 15, but don't call on the Government to denounce the Convention.

1 comment:

  1. [Standard Disclaimer: This post is offered in my personal capacity and should not be imputed to anyone or anything else] While Global Military Justice Reform scooped Lawfare on this one by quite a bit, Lawfare has posted an interesting commentary on the report:



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