Theresa May’s Attempt to Shield British Soldiers Gets the Law Very (Very) Wrong

By Tara Van Ho


UK Prime Minister Theresa May and defense secretary Michael Fallon announced Tuesday a plan to limit the UK’s human rights obligations in future conflicts. According to The Guardian:


May said the change would “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. It would be implemented by introducing a “presumption to derogate” from the ECHR in warfare. 

The plan raises two issues I wish to touch upon briefly here. The first is the question of whether there can be a presumption of derogation. The second is whether the derogation would actually limit the UK’s relevant human rights obligations – or its ability to fight war appropriately.

What’s the Legal Effect of a “Presumption to Derogate”?


International and European human rights law does not allow for a “presumption” of derogation. Not all states of emergency – or even all armed conflicts – require any derogation, let alone full derogations. As a result, there is a requirement to individually acknowledge each instance of derogation, to limit the derogation to that which is strictly necessary, and to  provide information on the measures taken and the reasons for those measures. Since not all states of emergency will require the same kinds of derogations, each derogation needs to explain the limitations and the reasons for those limitations. Therefore a “presumption to derogate” is meaningless under international law. The UK will still need to explicitly invoke the derogation for each instance and to justify its derogation.


Would the Derogation Affect the UK’s Human Right Obligations – or its ability to Fight a War Appropriately?


The UK has reportedly paid £20 million in compensation for 326 cases. These payments appear to primarily relate to violations of the right to life and to the prohibition on torture and cruel, inhuman or degrading treatment or punishment. The text of the European Convention generally prohibits derogations of these rights While the right to life can be derogated to a limited extent, it can only be derogated to the extent that the taking of a life complies with the laws of war (technically, the laws of armed conflict, or “LOAC”). LOAC was developed by military personnel and designed to ensure the military could effectively fight a war but provides specific safeguards and protections intended to limit damage, particularly for those not actively fighting in the conflict. When it comes to the right to life and the prohibition on torture and cruel, inhuman or degrading treatment or punishment, derogating from human rights law will not change the standards the UK is held to.


Let’s take each of these rights in turn, starting with the right to life. The prohibition on the right to life is a prohibition on the arbitrary deprivation of life. During an armed conflict, human rights law defers to the laws of armed conflict to determine what constitutes an arbitrary deprivation of the right to life. This means that all the laws within LOAC that make it easier to kill someone – a right to kill those directly participating in the conflict, the ability to kill innocent bystanders because their death is not excessive to the military advantage gained by targeting an object or person they happen to be near, the willingness of the laws of armed conflict to judge an actions based on the subjective belief of the person making the orders or carrying out the orders – all of that is transferred into the international human rights law when assessing a case from war. So any “right to life” cases filed against the UK under human rights law are being judged not by the stricter standards of human rights but by the more flexible and lenient standards developed by military personnel for effective engagement in war. If by that standard, the UK has still done something wrong and needs to pay compensation, it is not because human rights holds it to an unfair standard. It  is because the UK has violated the laws of war.


For the issue of torture and cruel, inhuman or degrading treatment or punishment, human rights does not defer to LOAC because the prohibition is absolute and the exact same standard applies in both human rights law and the laws of armed conflict. Again, the standard is not one from “liberal, activist, human rights lawyers,” but the standard in LOAC developed by and endorsed by military personnel..


Under LOAC, violations of the right to life and the prohibition on torture and cruel inhuman or degrading treatment or punishment are generally war crimes. So what the Prime Minister is saying is that she wants the UK to be able to commit war crimes with impunity.


So What’s the Point of the Law?


Since the human rights standards remain the same, it appears the derogation is solely aimed at limiting lawsuits. May’s plan is aimed at avoiding accountability for war crimes.  And anytime someone wants to avoid accountability, what they really want to avoid is the underlying obligation.


That’s a dangerous reality. It’s also a dangerous precedent for other states. It is American exceptionalism with a different flag. Prime Minister May thinks the UK should comply only insofar as it wishes to. This raises a reoccurring issue I’ve seen in European states lately. Europe wants to be known as “human rights respecting” states without doing the actual work to respect human rights. That’s what this proposal appears to stand for. And that’s a position the UK should firmly reject.


Disclaimer: The views expressed herein are the author(s) alone.

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