Does Article 15 ECHR Still Matter in Military Operations Abroad? The UK Government's 'Presumption to Derogate'

Abstract

Much has been written on the UK’s ‘presumption to derogate’ from the ECHR in military operations abroad. Unfortunately, the inquiry of the Joint Committee on Human Rights on the proposed derogation – launched end of 2016 – had to close due to general elections and was – regrettably – not reopened since. Thus, the ‘presumption to derogate’ still lacks a final assessment. Although the Committee received submission from leading scholars in the field, the implications of the ECtHR’s judgement in Hassan were not at the heart of the discussion. Therefore, this contribution will put the spotlight on this seminal decision and argue that it effectively deprives Art. 15 of any purpose in deployed operations. The ECtHR seems to have developed a new standard – the standard of “arbitrariness” – in case of genuine norm conflicts between the ECHR and other international regimes, allowing to lower the ECHR’s standard of protection to a mere minimum. This means: the UK’s ‘presumption to derogate’ will have practically no impact. Thus, much ado about nothing? Not quite. Hassan did not concern ‘non-international armed conflicts’. Although I argue that it is possible to transfer the verdict to these types of conflicts, it remains to be seen how the ECtHR will decide in this matter.

Keywords: presumption to derogate; military operations; United Kingdom; Article 15 ECHR; Article 5 ECHR; international humanitarian law; international human rights law; norm conflict; lex specialis; Hassan; Al-Dulimi