In Part 1 of this post I reviewed the legal framework governing the law of derogation in the context of the European Convention on Human Rights. I set out the scope of Article 15 of the Convention and explained how it had been applied in relation to certain conflicts or civil emergencies. As a general observation, it appears that the Court has been largely disinclined to second-guess a member state’s own assessment that there is a genuine public emergency threatening the life of the nation. The Court has been more interventionist when assessing whether the measures taken by a member state to deal with that emergency were strictly required.
Cases brought against the UK arising from the wars in Iraq and Afghanistan
Where does all this leave the UK?
It is clear that the Government’s concerns which have led it to call for derogation in future conflicts come from from a number of high profile cases that have arisen from the wars in Iraq and Afghanistan. It is beyond the scope of this article to undertake a comprehensive review of all the key cases in that context but a narrative of some of the main developments is set down here so that the Government’s position on derogation can be placed within its proper context.
The extent to which the Convention applies to acts done by a state party outside its own territory is governed by Article 1 of the Convention, which requires the contracting parties to secure to everyone “within their jurisdiction” the rights and freedoms defined in the Convention.
It is clear that the Government’s concerns … come from from a number of high profile cases that have arisen from the wars in Iraq and Afghanistan
The key question became, what was meant by the words “within their jurisdiction”? This was answered in Al-Skeini v United Kingdom. The Court interpreted this phrase more broadly than previous case law had indicated and held that Article 1 applies not only where a contracting state exercises effective control over foreign territory, but also where the state exercises physical power and control over an individual situated on foreign territory. The Court held that where a state exercises control over an individual, the state is required to secure Convention rights to that individual which are relevant to his/her situation.
As a consequence, jurisdiction was found in the case of Baha Mousa, the Iraqi hotel receptionist who was detained, tortured and killed while held by British soldiers in September 2003. It is important to recall (particularly in light of the Secretary of State’s assurances that in the event of future derogation, Service Law will still apply) that it was in large part the failure of the UK’s own service justice system to investigate and account for Baha Mousa’s death (and the 5 other deaths pleaded in the litigation) that led to the case being brought in the first place, on the grounds of a breach of the investigative obligation under Articles 2 and 3.
The key question became, what was meant by the words “within their jurisdiction”?
The judgment in Al-Skeini led the Supreme Court to overturn its previous ruling on whether Article 1 of the Convention applied to service people overseas. In a 2010 case, the Supreme Court had ruled that British troops operating on foreign soil were not within the jurisdiction of Article 1. Jurisdiction was then found to be essentially territorial, subject to a few exceptions, which did not apply in that case (where a soldier had collapsed and died of heat exhaustion while on operations but off-base).
This judgment was overturned in the cases of Smith & Ors v Secretary of State for Defence. The claimants, including those related to servicemen killed in an IED explosion beside their vehicles, argued that the MoD had breached the positive obligation under Article 2 of the Convention to take preventive measures to protect life in light of the real and immediate risk to the lives of soldiers who were required to patrol in Snatch Land Rovers which, they argued, were inappropriately procured and armoured for the purposes for which they were deployed.
A state’s extra-territorial jurisdiction over local inhabitants existed because of the authority and control that is exercised over them
The Supreme Court held that the soldiers had come within Article 1 of the Convention, just like the Iraqi civilians who had been the subject of the Al-Skeini litigation. Extra-territorial jurisdiction could exist whenever a state, through its agents, exercised authority and control over an individual. Convention rights could be “divided and tailored” to the particular circumstances of the extra-territorial act in question, as opposed to being an indivisible package. A state’s extra-territorial jurisdiction over local inhabitants existed because of the authority and control that is exercised over them by virtue of the authority and control that the state has over its own armed forces. They were all – the civilians who were under the control of the soldiers and the soldiers themselves – within the jurisdiction of the Convention. Whether Article 2 had in fact been violated was a matter that ought to go to trial and the claims would not be struck out on the basis that there was simply no jurisdiction at all, which was the MoD’s argument.
Key cases that followed Al-Skeini and Smith & Ors have focussed on the application of Article 5 of the Convention to decisions to detain combatants and/or civilians during overseas operations. The upshot of the recent string of cases is that Article 1 of the Convention applies to detainees, so detention needs to be in accordance with the Convention and, in particular, Article 5.
I will not recite the entire text of Article 5, but to summarise, Article 5 does not provide for internment or other form of administrative or preventative detention outside the exhaustive list contained within the article. There was therefore an issue about whether the detention of combatants, those suspected of being combatants and/or civilians caught up in the conflict, could be detained by British forces fighting overseas and if they could, what the procedural safeguards should be.
This issue was comprehensively examined in the case of Hassan v UK. The case concerned the capture and detention at Camp Bucca of an Iraqi national by British armed forces, in southeastern Iraq in 2003. It was claimed on behalf of the detainee that his arrest and detention was arbitrary, unlawful and lacking in procedural safeguards. No request to derogate had been made by the Government during the relevant period (or at all). Instead, the Government requested the Court to disapply UKs obligations under Article 5 or in some other way interpret them in the light of the powers of detention available to it under international humanitarian law (the Geneva Conventions).
In Hassan, the Court noted that it was not the practice of the Contracting States to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. That practice was mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights.
In light of these considerations, the Court accepted the Government’s argument that the lack of a formal derogation under Article 15 did not prevent the Court from taking account of the context and provisions of international humanitarian law when interpreting and applying Article 5. The Court considered that, even in situations of international armed conflict, the safeguards under the Convention should continue to apply, albeit interpreted against the background of the provisions of international humanitarian law.
The Court was mindful of the fact that internment in peacetime did not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention
By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out under Article 5 should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court was mindful of the fact that internment in peacetime did not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15. It could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security were accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers. In the circumstances of the case, the Court found that the capture and detention had been consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and had not been arbitrary. It therefore held that there had been no violation of Article 5.
So essentially, the Court read down Article 5 to accommodate the realities of armed conflict. The authority to detain would be found, as in Hassan and in a situation of international armed conflict, within the Geneva Conventions (and in particular the provisions on detention and/or internment of POWs and civilians).
In a situation of non-international armed conflict (where the Geneva Conventions do not apply), the UN Security Council Resolutions authorising certain security (including detaining) measures to be taken by the detaining armed forces would provide the authority to detain. This was examined in the case of Mohammed No 2, where the Supreme Court held that, for the purposes of article 5(1) of the Convention, UK armed forces had the legal power to detain the claimants pursuant to UN Security Council Resolution 1546, where the detention was necessary for imperative reasons of security.
There, the Supreme Court went on to find that as a consequence of Article 5 applying, there would need to be an initial review of the appropriateness of detention, followed by regular reviews thereafter, and that the reviews should be conducted by an impartial body in accordance with a fair procedure. The initial detention and authorisation had been appropriate, but after a period of time it had become unlawful according to these criteria and this led to the finding of a violation.
Ten days without a review to establish the lawfulness of the basis of detention would cross that line
This analysis was followed in the civil claims considered by Mr Justice Leggatt in Alseran, Waheed, MRE & KSU v Secretary of State for the Home Department on 14 December 2017. In a lengthy, detailed judgment which displayed considerable deference to the need to enable soldiers on the ground to make split-second decisions that should not be second-guessed by the courts, Leggatt J concluded that the initial detentions, screenings and authorisations were lawful but there came a point when the detention had become arbitrary. Ten days without a review to establish the lawfulness of the basis of detention would cross that line, there had been no effective opportunity for the detainee to challenge his detention and make representations and the detaining panel had applied an incorrect test for deciding whether or not to release. Further, during their detention, some of the claimants had been subjected to inhuman and degrading treatment, which violated Article 3 and which included hooding, being made to lie down on their front on the ground while soldiers ran across their backs as well and sexually humiliating treatment.
What would derogation mean in practical terms?
Article 15 makes clear that is not possible to derogate from Articles 2 and 3. Both articles comprise substantive and procedural (investigative) obligations, which are indivisible. It will not be possible to argue that the State should be bound by the substantive part of Article 2 (no killing outside the narrow confines of what is permitted by Article 2 (which includes lawful acts of war)) or the prohibition on torture, but not by the investigative obligations that attach to those articles. Yet that appears to be the logical consequence of the Government’s objection to having been compelled to set up the numerous investigations that have flowed from allegations of killing and serious ill-treatment by some British soldiers.
The Government of course has to accept that it will not be able to derogate from Article 2 or 3 of the Convention
Thus, derogation would not have prevented the courts from examining and ruling that the deaths that were the subject of the Al-Skeini litigation were required to be properly investigated. Nor would it have prevented the Al-Sweady inquiry from being founded – the fact that the most serious allegations were not made out following the investigation has no bearing on the lawfulness of the original decision that an independent investigation was required. It would not have prevented Article 2 and 3 violations from being found in those cases where the evidence, following investigation, supported it.
The Government of course has to accept that it will not be able to derogate from Article 2 or 3 of the Convention. Bearing that in mind, it is interesting to note the MoD’s arguments in the recent trial of Alseran, Waheed et al. It was their case that hooding would not necessarily constitute a violation of Article 3. If they had succeeded in this argument, and hooding had been found not to constitute a violation of Article 3, future derogation would have enabled them to continue, lawfully, to engage in hooding detainees. Leggatt J dealt with this argument robustly:
Despite its unequivocal published policy, the MOD felt able to submit at the trial of MRE and KSU that the hooding of captured persons does not amount to inhuman and degrading treatment under article 3 of the European Convention where it is done for short periods of time during transit for reasons of operational security, and also to deny that the hooding of MRE and KSU for the duration of the journey from Umm Qasr port to Camp Bucca was a breach of article 3.
… As the lessons of Northern Ireland, the Baha Mousa inquiry and the Al-Bazzouni case do not seem to have been fully absorbed by the MOD, I consider that the court should now make it clear in unequivocal terms that putting sandbags (or other hoods) over the heads of prisoners at any time and for whatever purpose is a form of degrading treatment which insults human dignity and violates article 3 of the European Convention. It is also, in the context of an international armed conflict, a violation of article 13 of Geneva III, which requires prisoners to be humanely treated at all times.
An incantation of “operational security” cannot justify treating prisoners in a degrading manner.
The principle consequence of derogation would be that Article 5 would no longer apply. But in circumstances where the Government has successfully argued that Article 5 should, in effect, be read down so that the strict procedural requirements of Article 5 are not applied during international armed conflict, it is hard to see what the problem is. All that has been held to be required is, in essence, that there should be a fair process. The courts have displayed a great deal of deference and recognise the risks of judicialisation of war. The judgments have enabled the armed forces to detain insurgents, combatants and civilians in the particular and difficult circumstances of armed conflict, subject to certain minimum safeguards.
All that has been held to be required is, in essence, that there should be a fair process
These safeguards are not onerous and comprise: the need for independent review and the right of the detained person to participate in that review. (In Mr Waheed’s case, those deciding on whether he ought to be maintained in detention were within the detaining authority’s chain of command at all times, assisted by an MoD official whose job was, in part, to ensure the reputation of the British Army was protected. Unsurprisingly, the court found such a process to lack independence). In addition, the detainee himself ought to be informed (without divulging secret information) the gist of why he was being held, the procedure should be explained to him, he should be allowed to contact the outside world and he should be allowed to make representations. There was no such fair process in place for Mr Waheed and a violation was found.
Given what we know about what happened to Baha Mousa and the other civilians who were unlawfully detained (and given what we now know about British involvement and assistance in the mistreatment of suspects during the War on Terror), it is surprising and troubling that the Government wishes to argue that it ought not to be held to Convention-compliant standards. The reassurances that we should not be concerned because Service Law will still apply ring hollow indeed. When British soldiers took Baha Mousa into their custody, they may not have thought that the Convention applied but they can have been in no doubt that Service Law did. Service Law did nothing to protect him or the others who died. The Army’s own internal investigation that followed was flawed and all efforts to compel an independent investigation vigorously opposed by the MoD. If the basic Article 5 protections no longer apply to armed conflicts overseas, serious concerns arise about what will happen to those detainees who risk disappearing into the legal black hole of derogation. As Lt Col Nicholas Mercer, the Army’s former chief legal adviser observed of his experiences in Iraq, “it became clear that when a lesser standard was applied, there was room for legal debate, then there was the potential for abuse – with tragic consequences in the case of Baha Mousa.”
it is surprising and troubling that the Government wishes to argue that it ought not to be held to Convention-compliant standards
The case-law that has flowed from the wars in Iraq and Afghanistan has established, essentially, that war is difficult and different – but it is not a legal black hole. The Convention requires the accountable use of lethal force, with effective and realisable safeguards, which include investigations into credible allegations of abuse. It requires that victims and soldiers have a means of redress, where fundamental human rights and the laws of war are breached.
Despite hysterical hyperbole from the MoD, the implications of these judgments are measured, limited and reasonable and essentially amount to the propositions: don’t kill unless it’s a lawful act of war, don’t torture and ill-treat civilians or combatants under your control, ever, and enable some minimum procedural standards to ensure people are not held in indefinite extra judicial detention. Far from creating uncertainty, the Convention clarifies and structures the military’s use of lethal force and its powers of detention in ways the Army itself ought to recognise and to honour. They are entirely consistent with the reasons given for our intervention in these conflicts in the first place. Presumed derogations would fundamentally undermine such principles and safeguards and send a terrible message to rights-abusing regimes around the world.
Despite hysterical hyperbole from the MoD, the implications of these judgments are measured, limited and reasonable
In any event, it is hard to envisage a situation which derogation is likely to be appropriate, on the Government’s analysis. The reasons offered by the Government would not meet the stringent requirements of Article 15. It is hard to see how the armed conflicts in Iraq and Afghanistan could have possibly “threatened the life of the UK”. On the contrary, these wars were justified as being fought in the service of human rights, democracy and the rule of law.
Lord Hoffmann encapsulated the situation perfectly, in A & Ors:
“What is meant by “threatening the life of the nation”? The “nation” is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the “life” of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity…
This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.
… The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.” 
 (2011) 53 EH RR 18, paras 130++.
 R (on the application of Smith) (Respondent) v The Secretary of State for Defence and another (Appellants)  UKSC 29.
 Smith and others (Appellants) v The Ministry of Defence (Respondent), Ellis (Respondent) v The Ministry of Defence (Appellant), Allbutt and others (Respondents) v The Ministry of Defence (Appellant)  UKSC 41
 Full text here: https://www.echr.coe.int/Documents/Convention_ENG.pdf
 16 September 2014 (Grand Chamber) (Application no. 29750/09)
 There are 4 Geneva Conventions of 12 August 1949. The third and fourth were relevant. The third is the Geneva Convention relative to the Treatment of Prisoners of War (see in particular Article 21, restriction on liberty of movement), http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf; and the fourth is the Geneva Convention relative to the Protection of Civilian Persons in Time of War (see in particular Articles 42 (grounds for internment) and 78 (security measures including internment)) http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf
 Article 4, ICCPR contains the derogation provisions which mirror almost exactly Convention Article 15.
 Mohammed (No 2) v Ministry of Defence  UKSC 2,  AC 821. The Supreme Court held that in a non-international armed conflict context article 5(1) should be read so as to accommodate, as a permissible ground, detention in accordance with a power of internment in international law conferred by a resolution of the UN Security Council. Hence, article 5(1) permitted UK forces to detain if this was necessary for imperative reasons of security.
 Alseran, Waheed, MRE & KSU v Secretary of State for the Home Department  EWHC 3289 (QB)
 Ibid, §s 9 (iii), 482, 499, 9(iii), 233, 951
 Al-Sweady was the uncle of a man killed during a battle with British soldiers. Various allegations were made including that captured fighters had been killed or ill-treated in custody. The claimant claimed that there had been an insufficient investigation into the allegations. In originally ordering the inquiry, the High Court condemned the MoD’s failure to disclose relevant documents and held that the Army’s own investigation was “not thorough or proficient”. The inquiry eventually reported that although aspects of the Army’s detention of Iraqi detainees “amounted to actual or possible ill-treatment”, the most serious allegations of torture and unlawful killing were “wholly and entirely without merit or justification”. The then Secretary of State indicated regret at the “instances of ill-treatment” but blamed the Iraqi complainants and 2 law firms that had represented them, highlighting an alleged failure to disclose a single document which, the MoD believed, would have prevented the inquiry from progressing. He made no reference to the circumstances in which the inquiry had originally been established and the failures of disclosure within his own department. The findings of the Al-Sweady inquiry, as Professor Andrew Williams has noted in his article, The Iraq abuse allegations and the limits of UK law” (Public Law, 2018, Jul, 461-481), “allowed the Government’s assumptions that the Iraq allegations were generally spurious and the product of malice and greed to become the dominant narrative.” Following the decision, it was announced that IHAT would be closed down.
 Alseran, Al-Waheed, MRE, KSU v Ministry of Defence  EWHC 3289 (QB), paras 494-495.
 Mohammed (No 2) Lord Sumption (at para 107)
 Mercer, N., ‘The future of Article 5 tribunals in the light of experiences in the Iraq War 2003’, in Contemporary Challenges to the Laws of War, Harvey, C., Summers, J., and White, N. (eds.), Cambridge: Cambridge University Press, 2014, pp. 149-68, p. 158
 A v Secretary of State for the Home Department,  UKHL 56, paras 91, 96 and 97.