Battlefield threats to UK troops: enemy bullets and European human rights rules

British troops are being put “in harm’s way” due to a fear of facing legal action under European human rights laws, the Armed Forces have warned.

Senior Defence figures told a government review that personnel were facing a “Hobson’s choice” in war zones due to fears that the European Convention on Human Rights (ECHR) prevented them from transferring prisoners from overstretched military prisons to “local facilities”, such as those run by the Afghan government before the Taliban takeover of the country.

A group including General Sir Nick Carter, the Chief of the Defence Staff, said clarifying the law was “essential”.

The disclosure comes after Michel Barnier, the former EU Brexit negotiator who is now running to be French president, said France had to regain the sovereignty it had lost to European courts - having previously secured commitments that the UK would remain signed up to the ECHR.

The senior Ministry of Defence figures suggested that the Government could in future formally deviate from particular clauses of the ECHR ahead of future military operations, due to concerns that Britain would otherwise face legal action for alleged breaches of Article 5, which safeguards the “right to liberty and security”, and Article 3, which prohibits torture, along with “inhuman or degrading treatment or punishment”.

© Provided by The Telegraph British soldiers fear that European Convention on Human Rights rules prevent them from transferring prisoners from overstretched military prisons to ‘local facilities’

Their intervention came in a meeting with the panel carrying out the first government-commissioned review of the Human Rights Act in 20 years.

The panel, led by Sir Peter Gross, a former Court of Appeal judge, has been weighing up proposals to curb the influence of the ECHR in the UK.

One proposal under consideration is to amend the Act to make clear in law that British judges are not “bound” by decisions taken in Strasbourg. Currently, the Human Rights Act simply requires judges to “take into account” the decisions of the European Court, but judges have disagreed about how slavishly judgments from Strasbourg should be followed. In one prominent judgment in 2009, Lord Rodger, the late Supreme Court judge, stated: “Strasbourg has spoken, the case is closed”. But Lord Judge, the former Lord Chief Justice, has said that “Strasbourg should not always win”.

Soldiers face ‘Hobson’s choice’

Minutes of the remarks of Gen Sir Nick and the senior MoD officials to members of the Independent Human Rights Act Review state: “Clarity of the law is essential to comply with Article 5 obligations. For example, clarity over the ‘power to detain’ is essential when planning for detention in warzones. How and for how long to detain captured persons are key questions that have not always been clear in relation to Article 5 obligations.”

The minutes continue: “In situations where there are large numbers of detainees straining military resources to their capacity, detainees may be moved to local facilities. These movements must be Article 3 [prohibition of torture] and 5 compliant.

“The military are therefore put in harm’s way as their resources for detention are stretched whilst they grapple with a ‘Hobson’s choice’; where transfer to local facilities is the only viable option but where there are questions as to whether transfer would be Convention compliant.”

Ben Wallace, the Defence Secretary, also highlighted the concerns in a letter to Sir Peter on July 9.

One precedent cited by the MoD was successful legal action in 2011 brought by Hilal Abdul-Razzaq Ali al-Jedda, who was arrested in Iraq on suspicion of being a member of a terrorist group involved in weapons-smuggling, and held in a detention centre in Basra for three years without charge. The European Court found that the UK had violated Article 5 of the ECHR.

Military operations have also been affected by a 2010 High Court ruling which stated that strict restrictions must be placed on the transfer of prisoners to Afghan-run facilities.

A written submission to the panel on behalf of the Government points out that in 2016, ministers issued a statement to Parliament saying: “Before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

The Conservatives’ 2019 manifesto pledged to update the Human Rights Act “to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

An MoD spokesman said: “We await the report of the Independent Human Rights Act Review to which we contributed and provided evidence. A government response will be issued following its publication.” 

Reference: The Telegraph: Edward Malnick