Stop using soldiers to justify lazy attacks on the European Convention on Human Rights

03rd Oct 2024

The suggestion that soldiers’ ability to conduct overseas operations is being unduly constrained by the European Convention on Human Rights is one that seems to rear its head every few years. The latest ill-informed contribution comes from Robert Jenrick MP, who decries the application of human rights law to ‘the battlefield’, and says that if our armed forces capture terrorists overseas, the European Court of Human Rights will ‘set them free’.

There has not been a single legal case that has second-guessed a commander’s decisions on the battlefield. You can’t bring a legal claim in relation to a battlefield situation – the courts have always been very clear about that. That is a rule that affects civilians and soldiers alike. The Smith litigation – that was about soldiers equipment in the field and whether it was reasonably safe – was about procurement decisions taken many months or years before the start of hostilities – and is often deliberately misrepresented by some as an example of judicial encroachment on the battlefield. It is not.

Where human rights laws do apply is if you take someone into your custody, whether at home or overseas. That is for good reason – look at what happened to Iraqi hotel receptionist Baha Mousa who was tortured and killed by British soldiers in Basra.  If the European Convention on Human Rights had not applied, we would never have found out what happened to him.  The same can be said of the Afghan inquiry, currently investigating allegations of unlawful killing, including of Afghan children.   The only reason these investigations were made possible is because of the Convention. The same Convention Mr Jenrick wishes to scrap.

Convention law does not mandate that detainees should be ‘set free’. Nor are its requirements particularly onerous. It requires that detainees are not tortured, murdered or ‘disappeared’. And if they are, it requires that we investigate. It is very surprising that someone running to be Tory party leader (and who presumably one day would like to be PM) would have any issue with that.

There is not a shred of evidence that any soldier accused of unlawful killing during an overseas operation has been concerned that human rights laws might have required the detainee to be released if they had not been killed, as Jenrick suggests. What there is, sadly, is evidence that a tiny minority of soldiers have murdered innocent people in cold blood and contrary to the rules of war and international humanitarian law. It does not happen very often and does not reflect the values and behaviours of the overwhelming majority of our soldiers. But when it happens, it is really important that politicians do not try and dress such killings up as other than what they were – as Jenrick seems to be trying to do – and that those allegations are properly and independently investigated.

Convention law protects our forces fighting overseas and at home. It requires that they be given reasonably safe equipment, investigations to be conducted into alleged abuse, and it allows bereaved military families to get answers when their loved ones die during their service. It also protects those we detain, for very good reason.

The people in the armed forces that we support don’t commit the kinds of abuses referred to above. And they don’t want to serve alongside those that do. None of the soldiers I know or their families will thank Jenrick for his contribution.

Our letter in the Times, today: Published letter to the Times 03:10:24

Emma Norton

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