Human rights law has no place on the battlefield: Policy exchange report
March 29: Britain should withdraw from the European convention on human rights during wartime because troops cannot fight under the yoke of “judicial imperialism”, according to a centre-right thinktank.
Granting enemy combatants the right to sue the government and requiring soldiers on the battlefield to operate to the same standard as police officers patrolling the streets of London will make future overseas combat operations impossible, a report by Policy Exchange warns.
The study, Clearing the Fog of Law, written by two academic lawyers and a Conservative party candidate, marks the opening shot in the general election debate about the role of human rights.
Tory party policy is already to withdraw from the jurisdiction of the European Court of Human Rights in Strasbourg, incorporate the main elements of the European convention on human rights into British law and give the UK’s supreme court final judicial authority.
The Policy Exchange report says British forces during conflict should be subject only to the longer-established Geneva conventions that govern the conduct of war, and be prepared to pay compensation to all military personnel killed or wounded during active operations – without the need to prove fault.
The authors are Prof Richard Ekins of Oxford University, Dr Jonathan Morgan of Cambridge University and Tom Tugendhat, Conservative candidate for Tonbridge and Malling, who is a former Territorial Army officer and assistant to the chief of the defence staff.
“British armed forces remain the most accomplished in Europe; but they suffer courtroom defeat after courtroom defeat in London and Strasbourg,” the report states.
The tipping point, the report argues, was the case of Smith v Ministry of Defence in 2013. That judgment, at the supreme court, established that soldiers injured in battle or the families of those killed in action may sue the government for negligence – and for breaches of the “right to life” under Article 2 of the European convention on human rights.
Tugendhat said: “It is ludicrous that European and British courts now expect our forces to operate in violent combat conditions according to a system more suited to the regulation of police powers on a Saturday night in the West End of London.
“The convention was designed for the stable conditions of peaceful, postwar Europe. Its application to our armed forces deployed in conflicts around the World puts their lives at risk. Commanders on the ground cannot make decisions in the heat of the battle with one eye on the possibility of retrospective legal action.”
Morgan said: “Our armed forces should certainly not be above the law. That is why the Geneva conventions should apply when they are on active operations. Human rights law simply has no place on the battlefield.”
The report says the UK’s membership of the convention should be suspended during future overseas armed conflicts although it accepts the difficulty of defining – in the era of the war on terror – precisely what constitutes “war-like operations”.
The call for the writ of the human rights convention and “judicial imperialism” to be limited is likely to be well received by the some factions of the Conservative party. Human rights groups and those committed to preserving the UK’s role at Strasbourg are likely to be highly critical of the proposals.
The Oslo Times