The former command legal advisor for the Iraq War in 2003, Lt Col (ret’d) Nicholas Mercer, was one of the first military lawyers to have to advise on the European Convention on Human Rights (ECHR) during an armed conflict. Here he responds to the suggestion that British forces overseas should be exempted from the ECHR .
I take issue which much of the misinformation that is being put around about the ECHR’s impact on the UK’s ability conduct overseas operations.
My experience in Iraq 2003 was that the ECHR was a force for good. First of all, the ECHR does not apply on the battlefield and so the commander’s discretion was not fettered in any way, as alleged. Secondly, the ECHR only applied to the treatment of prisoners and where the army was acting as the de facto public authority during occupation. It is absolutely right that Human Rights should apply in those situations so that all care is taken to avoid mistreatment of those detained and unnecessary loss of life. Furthermore, it should be remembered that the ECHR only holds the State to account, and not the individual soldier.
In situations which fall short of International Armed conflict such as Northern Ireland, imagine for a moment if the ECHR had applied on Bloody Sunday? The operational planning would have had to factor Article 2 (right to life) into the planning estimate which would have avoided all the unnecessary and inexcusable bloodshed. There would not have been a Bloody Sunday and there would not have been the subsequent cover up by the State, which has caused so many problems down the years. Put another way, veterans would have been protected as they would have operated within the law.
English Common Law allowed the atrocities of Kenya, Malaya, Cyprus and Northern Ireland to go unchecked and were then covered up by the State. This is what has caused our current problems and there should be no going back to this world. It is over. If we jettison the ECHR going forward, we simply expose the veterans of the future to more legal jeopardy. The British Army is one of the finest armies in the world and should always operate in accordance with the highest standards under International and domestic law including human rights. Get this right going forward and we have nothing to fear.