Human Rights and the Armed Forces: The Blog of Law

By: Tom Bisgood

The Human Rights Act has received a lot of stick over the years for its apparent role in a myriad of societal ills including helping prisoners gain access to pornography and enabling asylum seekers to stay in Britain because their cat will miss them too much (#catgate2011). Now in its most daring move yet it has supposedly turned its attention to our national security and will not stop until it is torn asunder

According to a recent report by Policy Exchange, a ruling by the Supreme Court on Human Rights Law is posing a threat to military personnel’s ability to make decisions in the field and risks negatively impacting combat operations due to an excess of red tape. Tom Tugendhat, who recently served in active duty as the military assistant to the Chief of Defence staff, argues “Over the past decade, legal steps based on the European Convention on Human Rights have undone safeguards Parliament drew up to ensure military commanders have the freedom of manoeuvre to make vital decisions on the ground”.

This has all emerged from the ruling on the Smith and Others v Ministry of Defence case in June, and the implications it has for the common law doctrine of Combat Immunity which “operates to exclude civil liability for negligence and damage caused to property or person committed by the armed forces during certain combat operations”. This case surrounds, among other incidents, a tragic accident in which a group of soldiers were killed due to a miscommunication that led to a challenger II tank of the Second Royal Tank Regiment firing on personnel from the Queen’s Royal Lancers leading two deaths and two injuries.

The case led to the Supreme Court making the decision that firstly, what was a previously common law concept of negligence would now be extended to include the military and secondly, the military and third parties would become subject to the European Convention on Human Rights. This mean that claims can now be launched against the Ministry of Defence (MoD) for damages under Human Rights law or negligence.

So, what are the implications for our national security? Defence Secretary Phillip Hammond is concerned that the ruling will make it more difficult to carry out operations. In addition, the report by Policy Exchange argues that setting too high precedents to combat may risk paralysing the army if a war emerged where our national survival was on the line. However, the key point here is that commanders in the field are still not held accountable for the decisions they make in the heat of combat (within reason); it is the MoD. Jocelyn Cockburn, the lawyer representing the families in the case stated “These cases are not about decisions taken by corporals on the battlefield. They’re about decisions in relation to equipping troops, decisions taken well away from the battlefield in the UK”. Furthermore, and most importantly, the Human Rights Act can’t be used against an individual to make a claim. It could only be used against a governmental institution, like the MoD

Moreover, the report claims that the Supreme Court’s ruling will negatively impact the concept of combat immunity, however, on the contrary, as Sam Fowles, a researcher at Queen Mary, points out it actually serves to strengthen it as it was only originally purposed to apply to soldiers in the field, which by all accounts it still does.

Admittedly the MoD may incur a larger legal bill than before. In the report Policy Exchange highlight that the MoD faced 5,287 claims between 2012 and 2013 costing them approximately £36 million a year and that they will have paid a total of £57 million on inquiries by 2014. Given the current economic climate and the government’s budgetary deficit it would be unfair for me to say this aspect isn’t an issue and in the spirit of trying to maintain a balanced argument there could be a double edged sword effect as MoD spending more on claims against them could mean they have less in their budget for other things, like giving troops the best equipment. Nonetheless, the main point here shouldn’t be about budget constraints or decisions in combat, but what Human Rights are all about, namely holding governments accountable for their actions.

Tom Tugendhat claims that “The focus on rights misunderstands the nature of armed forces. As the ultimate guarantors of a nation’s liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this the nation would be undefended”. While it may be true that a soldier is willing to make the ultimate sacrifice of his right to life for Queen and country it does not mean that MoD is allowed to be in any way lax in the effort to ensure that she or he does not have to. Whatever burdens the MoD may have to face, the bottom line is that soldiers should be equipped properly and the government should face the consequences of their actions if they fail to do this.

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Karima Bennoune – ‘Your Fatwa Doesn’t Apply Here’

A view on the talk, by Novlet Levy

All too often we hear in the media, stories about the horrible things that Muslim extremists have done. We hardly ever hear about the accounts of heroism by the many others who are committed to the fight against terrorism. This does not refer to Western Governments but to Muslim’s themselves who put themselves at a huge amount of risk by protesting against religious extremism – in particular Muslim women.

I was given the opportunity to attend a talk held by Karima Bennoune – a professor of international law and member of the board of the network of Women Living Under Muslim Laws. Bennoune shared some of the untold stories of some of these heroes/heroines and made some very insightful comments about what is going on in the world today and how we could potentially alleviate the problems caused by Muslim extremism. Bennoune argues that the human rights struggles against fundamentalism are amongst the most important and most overlooked human rights struggles in the world today.

As much as we disagree with the values of Muslim extremists, we can not just sit back in disgust and observe what is going on without looking at the impact that their actions have on the human rights of many Muslim women. Bennoune tells many different stories. Stories of women beaten and humiliated, killed and disgraced. For example, she tells the story of a young Pakistani Muslim woman who was killed on the street by Muslim extremists because she was a student and they were against the idea of women being educated. Stories like this show us how important it is for us to recognise that huge human rights violations are taking place and they get us to think about what we can do to change this.

It is important that fundamentalism is fought against directly as it essentially lays the bed of terrorism. Society needs to be relieved of whatever it is that is leading people to Muslim extremism and violence. In addition Muslim women need to come together and demand change – at the moment there isn’t enough solidarity amongst Muslim women. Some are just too afraid. Bennoune speaks of Muslim women as being the most effective group to alleviate the problem.

It is also important that the international community become more involved. There should be international support to mobilise the people who are actually trying to eradicate these injustices. However, international support alone is not enough, serious debate needs to happen amongst the people that are actually of Muslim heritage themselves – they have a responsibility to educate their younger generations.

A really important comment that was made at the talk is that we need to talk about human rights and peace at the same time.

That’s It For Another Year! Finishing the Tour at the Young Persons London Event

By guest blogger: Eden Howard

On Saturday 19th October the third young people’s event was held at the head londonyp2office of Save the Children UK in Farringdon, London, marking the conclusion of this year’s Human Rights Tour. This event, which was organised by the British Institute of Human Rights, working in partnership with Big Voice London, Children’s Rights Alliance for England (CRAE) and Save the Children, engaged the bright minds of various young people on the topic of human rights with particular focus on the relevance of them for young people in the UK. I found myself impressed by the enthusiasm and insightful opinions of those who attended, with discussions ranging from the history of human rights legislation to complex global issues including the death penalty, euthanasia and the act of “sectioning” under the 1983 Mental Health Act

londonyp1The day commenced with a presentation providing an overview of human rights law in the UK, focusing on the history of the our human rights, with the horrific events of the Second World War as the focal point for international recognition on the importance of human rights. The young people were then asked to consider which rights were incorporated into the Human Rights Act 1998 through a group activity involving an island society and deciding what would be essential rights we would want to see on our island. The first suggestion covered the idea of a democracy, perhaps with The Lord of the Flies in mind and ‘The right to free elections’, and from this other rights followed, including ‘The right to not suffer from torture or inhuman or degrading treatment or punishment’ (Article 3) and ‘freedom of thought, conscience and religion’ (Article 9)

The young people were then asked to talk about current issues that they had read about. Amongst the broad suggestions included the loss of autonomy through the act of “sectioning” under the 1983 Mental Health Act, thus engaging two significant rights ‘The right to liberty (article 5) ‘ and in some cases ‘The right to not suffer from torture or inhuman or degrading treatment or punishment (article 3)’. On this topic, the facilitators stressed that a paternalistic approach must be adopted and that where temporary procedures are enacted to protect an individual from harming themselves and/or others it is important to realise that ‘one does not leave their rights at the door’, therefore highlighting that regardless of the situation, a person’s rights are inalienable.

After lunch, we moved onto the main focus of the day: children’s rights, with specific emphasis on the Convention on the Rights of the Child, an international treaty that gives over 40 major rights to those under the age of 18 all over the world. Furthermore, the idea of ‘ratification’ was also covered, as although the UNCRC is not part of UK law, it was ratified in 1991 which means that the Government has agreed to do everything it can to protect children’s human rights. Amongst the interesting suggestions, it was highlighted that although those aged under 18 are not allowed to vote, the minimum age for army enrolment in the UK is 16 which sparked some lively discussions; many proposed a change in existing legislation.

Towards the end of the event the young people told us what they thought the Government should focus on improvements for young people in the UK. These thoughts varied from personal experiences of where people lived, for example those living in rural areas found that activities were aimed at very young children and the elderly and that for teenagers, very little existed for them to do in their free time. There was also an agreement on the importance of free music, especially in schools where often the cost of instruments and lessons can prevent children exploring music as an option.

Ultimately, this final young people’s event made for a engaging ending to the 2013 Human Rights Tour with the involvement of young people in diverse human rights issues, topped off by the designing of colourful human rights inspired bunting – a great success!

The Last Leg: BIHR Comes Home to London

By guest blogger: Sadaf Etemadi, Law Student and ex-intern at BIHR

On the 17 of October 2013, the Human Rights Tour returned to where we set off from, back to the open arms of London. The event was held in partnership with the HEAR Network and the London Voluntary Service Council (LVSC) in Amnesty International’s awe inspiring Human Rights Action Centre.

It may have been the penultimate stop of a gruelling 17 events in 6 weeks of the Human Rights Tour, but from the energy, motivation and dedication of the BIHR staff it felt like the tour was just off to flying start.

The day began with an introduction to the history of human rights. This served as a chilling reminder of the not so distant atrocities of the holocaust and WW2; a world without recognition of basic guarantees of human dignity, control of state power and state accountability. A world without human rights. There really can be no better example of the consequences of gradual erosion of our liberties and the reasons why we must engage with and defend our human rights. Although we may have progressed since the events of WW2 we still need a safety net that harnesses our values and ensures that at least at a minimum we do not regress. The whistle stop through history also reinforced the message that human rights haven’t ‘just fallen into our laps’ nor are they an alien concept to us rather they have always been embedded in our society. The ban on child labour, universal suffrage and the establishment of the welfare state were all achieved using human rights language. This reminder is of particular importance as in the last few months, the Human Rights Act (HRA) which harnesses the values of dignity, equality and fairness has become the victim of unnecessary scathing attacks from the media.

BIHR pride themselves on bringing human rights to life and as always they delivered on their promise. The case studies session, a session thoroughly enjoyed by all, consisted of examining real life cases, situations any one of us could find ourselves in, from being stalked by a former partner to being stopped and searched without reasonable suspicion by the police. In groups we discussed whether any human rights issues were engaged in any of these scenarios. For me this activity was incredibly insightful. As a law student, I have always discussed and studied human rights from an academically conceptual standpoint but this activity provided me with the opportunity to talk about human rights ‘on the ground’ and how those actually involved in the health and social sector approach these issues on a daily basis. Furthermore, what emerged from the discussions with my group, contrary to media reporting, was that there was actually a real interest and knowledge of human rights outside the legal profession as well as a keen interest in learning more and debunking the myths that surrounds the HRA. This felt pleasantly surreal as these discussions illustrated that human rights and the HRA have slowly trickled into our consciousness and become engrained into our society. Human rights is becoming mainstream!

photo 2Next on the agenda was prisoner voting, fair trial and our conflicted politicians.

In relation to prisoner voting we were rightly reminded that human rights are rights that must be continuously delivered by the government and adapted to necessitate different situations. Human rights cannot ‘simply be left at the prison gate’- they can never be completely taken away from us.

The BIHR staff where then put on the spot with the tough question of how to reconcile a fair trial with the fairness due to a victim of a crime.  In true BIHR style, not only was this question answered but it was illustrated through another popular case study. The case of ‘Alex and Sadaf’ showed how a trial that is conducted fairly actually benefits the victim of crime just as much as the defendant. It is the job of the police and the Crown Prosecution Service (CPS) to conduct a careful balancing act to assess the value of bringing a prosecution and the impact on the victim. In this case the CPS hadn’t got that balance right, perhaps if they had viewed the case with human rights in mind the outcome could have been different.

In relation to conflicting political statements and commitments of the three main political parties, it was suggested that this was partly due to a lack public awareness raising when the HRA first became law in the UK in 1998. When the HRA came into force the legal profession received training, but very little was invested in informing the public who were intended to benefit from the act. Those of us at the Tour event were galvanised and inspired to speak up for human rights in our schools, local communities and workplaces. The onus is on us to raise awareness and to ensure we know about the Act before we start debating the future of the Act. This would stop our human rights from being used as a political football during election season and compel our politicians to comprehend and appreciate the significance and the utility of the Act in our society.  This message was reiterated by the international appraisal the HRA received. An American member of the audience went as far as saying that the US should adopt a similar mechanism to the HRA as it not only provided ironclad protection of our rights but it was also very ‘people friendly’ as it is committed to settling disputes outside the courtroom rather than encouraging prolonged litigation. Support for the HRA has gone global!

Last but not least my personal highlight; human rights bunting. The rare instance where law meets art. As I walked past a table of beautifully decorated messages which thanked the HRA for its achievements and pledged to defend this vital piece of legislation, I could not help but smile at the fact that the Human Rights Act is not going anywhere; not at least without a fight.