MILITARY OPERATIONS AND OCCUPATIONS
The application of the Human Rights Act (HRA) 1998 during the UK’s overseas military operations has been a point of contention for some time. Despite the controversy, the HRA has become a critical tool in protecting the rights of both soldiers and victims of British overseas operations.
Application Overseas
The application of the HRA to the actions of armed forces outside the UK is a combination of Parliament’s exercise of its sovereignty and judicial interpretation. The HRA was clearly intended to apply to the armed forces. During the House of Lords debates on the Act, when facing amendments which would limit its application to soldiers, the Lord Chancellor stated that “the Government's view, is that the Armed Forces fall squarely within the category of an obvious public authority”.
It is less clear whether the HRA was intended to apply to the armed forces while deployed overseas. This point was neither determined in the White Paper ‘Rights Brought Home’, or in either House of Parliament, leaving the question of the HRA’s extraterritorial application to be resolved by the courts. At the time the HRA was adopted though, a number of European Court of Human Rights’ (ECtHR) judgments had already applied the European Convention on Human Rights (ECHR) to the actions of states outside their territory, including their military forces.
The House of Lords conclusively addressed this issue in the UK context in the case of Al-Skeini v Secretary of State for Defence, where it held that, because the purpose of the HRA was to ‘bring rights home’, and thus give domestic effect to ECHR rights, the HRA was to have the same scope of application as the ECHR.
Unlawful killings and Ill-treatment
The extraterritorial application of the HRA to overseas military operations has been instrumental in allowing individuals who have suffered human rights violations at the hands of British troops to obtain a degree of justice. Articles 2 and 3 ECHR obligate the state to conduct an effective and independent investigation where there are accusations of unlawful death and ill-treatment by its agents.
These obligations have been critical to the creation of two public inquiries into the behaviour of British forces in Iraq, along with investigations conducted by coroners and the service police. Indeed, without the HRA, it is questionable whether any investigation would have been launched into the numerous accusations of misconduct by British forces abroad. The Iraq Inquiry found that the government had little appetite to investigate Iraqi deaths, with its principal concern being to “rebut accusations” so as “to sustain domestic support for operations”.
The application of human rights law led directly to the public inquiry into the death of Baha Mousa, an Iraqi hotel receptionist who was captured by UK service personnel in September 2003. As a result of severe ill treatment, Mousa died in British custody. The public inquiry into his death concluded that
“During his detention, Baha Mousa was subjected to violent and cowardly abuse and assaults by British servicemen whose job it was to guard him and treat him humanely” […] A subsequent post-mortem examination of his body found that he had sustained 93 external injuries”.
If it were not for sustained pressure on the Government from litigation using the HRA, the truth about this shameful incident is unlikely to have ever been uncovered.
There are several other similar examples, such as the case of Alseran v Ministry of Defence where the High Court determined that British soldiers had mistreated detainees held in internment camps in Iraq in 2003. The service personnel were found to have run along the backs of several men, while another detainee was found to have been “systematically beaten”. In Al-Saadoon v Secretary of State for Defence the Court of Appeal discussed a number of instances of men being killed during raids on their homes, as well as the case of a man shot in the stomach, pulled from his car and beaten repeatedly by soldiers at a petrol station.
A frequent criticism of the application of the HRA to overseas military operations is that it has led to soldiers facing repeated investigations into their past conduct during military operations. Indeed, this criticism prompted the introduction of the Overseas Operations (Service Personnel and Veterans) Bill, currently before the UK Parliament. This Bill establishes a legislative presumption against prosecuting after 5 years, for members of the armed forces who have committed offences abroad. It will also require prosecutors to take consideration of the conditions faced by armed forces personnel deployed overseas, and requires the consent of the attorney general before any prosecution is brought. Framed as an attempt to provide certainty to soldiers and veterans that they will not face repeated investigation for their conduct abroad, the Bill has been roundly criticized by both domestic and international commentators, as well as members of the armed forces’ community.
It is important to place these “repeated investigations” in the correct context. Despite the investigative obligations under the HRA being clear to the Ministry of Defence (MOD) in 2003, the government’s position was that the HRA did not apply to its overseas military operations. As a result, accusations of unlawful killing and ill-treatment committed by British soldiers were not investigated adequately in their immediate aftermath.
The Joint Committee on Human Rights recently heard that many of the investigations into events in Iraq and Afghanistan “were not sufficiently resourced, independent, timely or expert”. Once the deficiencies were uncovered, the UK was ordered by the courts to carry out proper investigations into a number of the events. The Al-Sweady Inquiry concluded that some of the allegations made against service personnel were exaggerated, while others have been found to be credible. Indeed, the same inquiry found that there had been ill-treatment of detainees. The MOD has paid out millions of pounds in compensation to abuse victims in Iraq. A 2019 investigation by the Times and BBC Panorama reported that British detectives had found credible evidence of war crimes in Iraq and Afghanistan, but that investigations had been covered up by the Government and armed forces. Most recently, the Office of the Prosecutor of the International Criminal Court concluded that there “is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence”.
The solution to this problem seems obvious: it is not to shut down investigations, but to ensure that they are carried out properly in the first place. In the absence of effective and independent investigations at the time of these incidents, the truth may never emerge, and the British military will continue to operate with the stain of these accusations upon its soldiers. The fault here lies not with the application of the HRA, but with the initial decision not to apply the HRA to the overseas deployments and the institutional failure to properly investigate at the time.
The right to life and soldiers
While much has been made of application of the human rights law to people in other countries, such as Iraq and Afghanistan, little has been made of the beneficial impact of the HRA on soldiers themselves.
The protection of the right to life in the ECHR and HRA, in particular, has repeatedly helped bereaved families to hold the MOD to account for failing to properly protect soldiers when deployed overseas.
The first soldier killed in Iraq, Sgt. Steven Roberts, died in a friendly fire incident due to delays in providing his unit with appropriate body armour. Article 2 ECHR required the state to undertake a comprehensive investigation into his death. The coroner at his inquest concluded “Sgt Roberts's death was as a result of delay and serious failures in the acquisition […] of enhanced combat body armour, none being available for him to wear." Following the investigation, the MOD changed its policy and now provides enhanced body armour to all service personnel before deployment overseas.
The families of soldiers who had been killed by roadside bombs in Iraq were also able to rely on the right to life to challenge the MOD’s failure to provide adequate equipment. In Smith v Ministry of Defence, the UK Supreme Court held that the MOD’s failure to provide sufficient armoured vehicles with effective countermeasures against roadside bombs for patrols could be examined by courts under the HRA’s right to life protections. The government eventually reached a settlement with the families involved in these cases and issued them an apology.
This episode in particular sheds light on the value of the HRA from a number of angles. Because of the HRA, the families of deceased service personnel did not have to experience the lengthy and oftentimes expensive process of bringing their case directly to the ECtHR. The British judges who heard the case believed that the case law from the ECtHR had left them with “no alternative” but to recognise the application of the ECHR to the soldiers. Having followed the Strasbourg jurisprudence on the question of whether the ECHR applied, the UK Supreme Court was able to use its expertise in the domestic application of the rights to cultivate a unique test on how the right to life applied to soldiers so that it would not have a significant adverse impact on the conduct of military operations.
The application of the HRA to the UK’s overseas military operations has not been without difficulty. In part, this is due to the evolving global understanding of how human rights laws apply to armed conflicts. It is undoubtedly also due to the sheer scale and frequency of military expeditions launched by the UK in the last two decades. Despite these challenges, however, the HRA has played a vital role in seeking truth and accountability, and upholding the value of human life for both victims of conflict and British soldiers alike.
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