Jane Rooney: The Extraterritorial Application of the Human Rights Act: Overseas Military Operations and Beyond

*Editors’ note: this post is part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022.  You can read the first post in the series here.*

With the reinstatement of Dominic Raab as Secretary of State for Justice, the Bill of Rights Bill, currently before Parliament, is once again a possibility only weeks after Liz Truss halted its progression on account that it was a ‘complete mess’. This post examines the Bill’s provisions on overseas military operations, how they compare with the UK judiciary’s approach, the Overseas Operations (Service Personnel and Veterans) Act 2021, and the European Court of Human Rights (ECtHR) jurisprudence. Also highlighted  are other extraterritoriality issues outside overseas military operations that the UK will have to consider. 

The main extraterritoriality issue that the Bill addresses explicitly is overseas military operations. Clause 14 states that a person cannot bringing proceedings under the Bill of Rights Bill against a public authority in relation to acts ‘done… outside the British Islands in the course of military operations’. Further, one cannot bring proceedings in relation to an investigation, or lack of investigation, into an alleged violation of the Convention in overseas military operations. The Bill defines Overseas military operations encompass peacekeeping missions, ‘operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of Her Majesty’s forces come under attack or face the threat of attack or violent resistance’. 

Despite this clause, UK public authorities would still have to comply with the ECHR by virtue of clause 12. The Independent Human Rights Act Review proposed to negotiate a new Protocol to the ECHR at Strasbourg level to limit jurisdiction under article 1 ECHR to take the extraterritorial scope of the ECHR out of the judiciary’s hands and to ensure continued compliance with ECHR obligations. The Ministry of Justice agreed with this proposal in its December 2021 consultation response paper. But it is unlikely that the UK will be able to convene the 46 member states of the Council of Europe in a timely fashion to discuss limiting the jurisdiction of the ECHR so that it does not include overseas military operations. Nor is it likely that all state parties will concede to the parochialism of the UK. ECHR obligations are international and reciprocal. A green light will not be provided to enable states to commit human rights violations in other states in the course of conducting terrorism operations or other military operations. The IHRAR proposal is unrealistic. Should Parliament pass the Bill of Rights Bill with clause 14 intact, the UK will be in breach of its international obligations.

This is not the first time the UK would be at odds with the ECHR approach to human rights protection in overseas military operations. There was a substantial departure by the UK Supreme Court from Strasbourg – and other international and domestic obligations – in its 2017 judgment Mohammed v Ministry of DefenceHere the Supreme Court did not adopt the Strasbourg presumption of human rights compatibility in its interpretation of a UN Security Council Resolution which authorised states to take measures that were ‘necessary for imperative reasons of security’.  It thereby found that detention without trial or charge, and without access to a court, for 110 days in Afghanistan by UK forces of an Afghan national was compatible with the Human Rights Act. This decision was at odds with all legal and policy frameworks in place including the laws of armed conflict. 

By contrast, the UK Supreme Court notably went beyond the protection afforded by Strasbourg in its judgment in Smith v Ministry of Defence [2013] UKSC 41. The UK Supreme Court found a breach of the substantive right under article 2 when soldiers were killed by IED devices in vehicles that were not adequate to protect against death. The state should have taken measures to provide adequate equipment. While the UK courts found this claim admissible and a violation on the merits, the ECtHR has adopted a more restrained approach and did not find admissible a case against the UK regarding the deaths of members of the armed forces in Miller v UK in 2019. It noted the complexity of the jurisdiction question because the victims were killed by a local Iraqi crowd. It decided the case was manifestly ill-founded because there were several attempts to conduct an effective investigation and noted the ‘difficult security context in which the various British Army investigations took place’. 

In addition to the case law, the Overseas Operations (Service Personnel and Veterans) Act 2021 introduced a presumption against prosecution. This presumption does not apply to any crimes outlined in Schedule 1 including those listed under the Armed Forces Act 2006, the International Criminal Court Act 2001, Geneva Conventions Act 1957, section 134 of the Criminal Justice Act 1988 (torture), and many other specific provisions listed across 36 sections. There are also time limits imposed in tort and human rights law. The 2021 Act made changes to the Human Rights Act including a new section 7A which is designed to stop time limits being extended in overseas armed forces proceedings. It is difficult to ascertain what impact this will have on the ability of individuals to seek justice under criminal law, tort law, and in human rights litigation. Shiner and Chowdhury provide a detailed examination of ECHR obligations with which the UK judiciary will have to comply when they are exercising their discretion and taking into account the particular features the Act requires them to take into account. Mallory emphasises the rhetorical significance of the Act and debates in Parliament. At present, the Act does not appear to bring about significant legal reform. It serves primarily as a signal to judges to exercise any discretion against the alleged victim.  Its primarily rhetorical purpose may be even more evident in light of the limited legal change that it potentially engenders.

These measures have been taken despite the fact that, while the ECtHR has expanded the jurisdictional reach of the ECHR, it is increasingly deferential to the state when adjudicating on ‘overseas military operations’. This has elicited profound disappointment from many quarters. For example, in Georgia v Russia II, the ECtHR found that its jurisdiction would not extend to ‘military operations’ during ‘the active phase of hostilities’ in an international armed conflict (IAC). As a result, serious allegations of unlawful killings of civilians during the first five days of the conflict were inadmissible. Events outside this period, including during the occupation, were within the jurisdiction of the ECtHR. Many have seen this as a roll back on jurisdiction from the Hassan v UK judgment, which saw the ECtHR adjudicate upon article 5 detention in an international armed conflict, wherein the ECtHR interpreted the ECHR through the lens of the laws of armed conflict to find no violation of Tarek Hassan’s rights. 

A further example is Hanan v Germany which concerned an airstrike in Afghanistan carried out by an American Air Force pilot, authorised by German military authorities that formed part of the International Security Assistance Force. The airstrike resulted in multiple civilian casualties (an estimated range of 14 to 113). The ECtHR considered whether Germany had a procedural obligation under article 2 to investigate the legality of the use of force. In deciding upon jurisdiction, the ECtHR outlined three ‘special features’ that would be taken into account when deciding whether there was a jurisdictional link between Germany and the victims in Afghanistan: whether Germany was obliged under customary international humanitarian law to investigate the airstrike; whether Afghan authorities were prevented from instituting a criminal investigation; and whether Germany’s domestic law required them to institute a criminal investigation. 

In this way, the EctHR acted as an oversight mechanism for compliance with the domestic and international law frameworks which Germany was already bound by, but which the applicants had no means of enforcing other than through the ECHR system. It  found that there was an obligation under both customary international humanitarian law and German criminal law to investigate. It also found that under the ISAF Agreement, Germany retained exclusive criminal jurisdiction over German troops and therefore the Afghan authorities were prevented from instituting criminal proceedings. However, while the  jurisdictional threshold was met, it did not ultimately find in favour of the applicants. It held that Germany had conducted an effective investigation into the legality of the airstrike, despite the fact that the German Colonel who authorised the airstrike was involved in the investigation, there was a 6-month delay in opening the investigation, and the applicants were denied their right to a hearing.

Finally, it is important to note that the British Bill of Rights Bill does not address other extraterritoriality issues, with the exception of deportation of criminals. It is worth bearing in mind the variable positions adopted by the ECtHR outside the military context. It has expanded extraterritoriality in two notable areas: international assassinations and repatriation of IS children and their mothers from Syrian camps. The ECtHR also issued an interim measure on the Rwanda deportation scheme to prevent the removal of an Iraqi national seeking asylum in the UK until a domestic court had an opportunity to consider it. The only allusion to the Rwanda deportations in the draft Bill of Rights is section 24 which provides that interim measures issued by the ECtHR are not to be taken into account by public authorities, including courts, for the purposes of determining rights and obligations in domestic law. Conversely, the ECtHR  has shown increasing deference to the state on matters concerning extradition for criminal trial and punishment, and rendering someone stateless when they have participated in terrorism. 

In conclusion, clauses 14 and 24 of the Bill of Rights Bill are incompatible with the extraterritoriality rules adopted by the ECtHR insofar as Strasbourg continues to provide oversight of overseas military operations outside active conflict zones. But the UK judiciary has strayed from Strasbourg already by both restricting and expanding rights in the extraterritorial context falling short of, and going beyond, the approach adopted by the ECtHR. Furthermore, the increasing deference exercised by Strasbourg when adjudicating on substantive rights in overseas military operations means that the standard of scrutiny is not something that should be feared by the UK. Today the ECtHR has moved on to focusing on other pressing extraterritorial issues where it is much less deferential:  international assassinations and repatriation of IS children and their mothers from Syrian camps. Those issues not only engage the UK’s obligations under the ECHR but also other international law obligations included in  the UN Convention on the Rights of the Child and the Refugee Convention. The confusion embodied in the Bill of Rights Bill – the lack of accurate appraisal of the actual case law of Strasbourg versus that of the domestic courts, the narrow focus on overseas military operations, and the proposal to try to renegotiate extraterritoriality at a state level – makes one think that the Bill is again a political tool for reigniting culture wars, rather than a serious proposal for legal reform.   

Dr Jane Rooney, Assistant Professor in International Law, Durham Law School

(Suggested citation: J. Rooney, ‘The Extraterritorial Application of the Human Rights Act: Overseas Military Operations and Beyond’, U.K. Const. L. Blog (22nd November 2022) (available at https://ukconstitutionallaw.org/))