Analysing Proposals for a ‘Presumption to Derogate’ from Human Rights Laws in Armed Conflicts

Natasha Holcroft-Emmess 6th October 2016

On 4 October 2016, The Guardian reported that the UK Government will introduce plans to suspend the application of the European Convention on Human Rights (ECHR) to the UK’s armed forces acting in future conflicts. Prime Minister Theresa May has said that this would be implemented by applying a “presumption to derogate” from the ECHR in future armed conflicts. The Government’s ostensible justification is to “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts.”

There are several difficulties with this idea of a ‘presumption to derogate’ from human rights obligations during armed conflicts.

First, although it is possible under Article 15 ECHR to derogate from the Convention in ‘time of war or other public emergency threatening the life of the nation,’ derogations are only permitted in a temporary, limited and supervised way. The limits of Article 15 are clearly stated:

  • States may take measures derogating from the Convention only to the extent strictly required by the exigencies of the situation;
  • Certain rights under the ECHR admit of no derogation, such as freedom from torture (Article 3), freedom from slavery (Article 4) and the right to life (Article 2 – except in relation to deaths resulting from lawful acts of war); and
  • Derogating states must keep the Secretary General of the Council of Europe fully informed of the measures it has taken and its reasons for taking such measures.

Derogation measures must therefore be specifically justified and narrowly tailored. The Government’s sweeping statements are out of line with this framework. Its press release states that the intention is to derogate from the ECHR “if possible in the circumstances that exist at that time.” This is the only acknowledgement of the crucial analytical step which determines whether, and the extent to which, derogations are justified by the situation on the ground, and its nuance is lost in the Government’s rhetoric.

Second, it is not at all clear how a ‘presumption to derogate’ might operate in practice. Unfortunately, the details of the derogation policy are unknown, so we can only speculate about how it might work. Derogation from the Convention cannot merely be inferred from military action during armed conflicts. The European Commission on Human Rights held in Cyprus v Turkey that, in the absence of an official and public notice of derogation, it could not apply Article 15.

The presumption may mean that the UK intends formally to derogate from the Convention in future armed conflicts. While derogation may be appropriate in some circumstances, it has not been the practice of States formally to derogate from the Convention in the major transnational military operations of recent times. It would be incumbent on the State proposing to disapply human rights laws to ensure that any derogation measures are strictly tailored within the framework of Article 15.

Third, it is extremely doubtful that the Government’s stated aim – reducing vexatious claims against soldiers – would be achieved by derogation. Many of the investigations into soldiers, and resultant civil claims, have related to allegations of mistreatment or unlawful killing. But the right to life and freedom from torture, inhuman and degrading treatment are ‘non-derogable’ rights. So, if a State is bound, under the procedural aspects of Articles 2 or 3, to investigate allegations of mistreatment or unlawful killing – the results of which might subsequently give rise to a civil claim – derogation from the Convention could not prevent such investigations or claims, because Articles 2 and 3 are non-derogable. The idea is, therefore, unfit for purpose.

Finally, there are strong reasons for caution when States consider suspending Convention rights, even in times of armed conflict. In an attempt to close out ‘vexatious claims’, the Government’s approach would inevitably slam the door shut on meritorious ones. There is a dangerous fallacy to the Government’s rhetoric that by limiting the application of human rights in situations of armed conflict, we protect our armed forces. Were such limits to be imposed, British soldiers (and their families) would also be unable to hold the Government to account should they suffer treatment that amounts to a violation of their human rights.

While derogations may sometimes be appropriate, any proposals by a State to disapply human rights protections must be met with the utmost scrutiny and vigilance.

Author profile

Natasha Holcroft-Emmess studied BA Jurisprudence and the BCL at Oxford University. She qualified as a solicitor at a London law firm before returning to Oxford to undertake an MPhil in Law.

Citations

N Holcroft-Emmess, “Analysing Proposals for a ‘Presumption to Derogate’ from Human Rights Laws in Armed Conflicts,” (OxHRH Blog, 6 October 2016), <http://ohrh.law.ox.ac.uk/?p=57762> [date of access].

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