The Juridification of the British Armed Forces and the European Convention on Human Rights: ‘Because It’s Judgment that Defeats Us’

Abstract

For a number of years, senior commanders, politicians and commentators have voiced their concerns that legal constraints are undermining the operational freedom of Britain’s armed forces to an ever greater extent. Tighter legal regulation and the prospects of litigation are blamed for making soldiers increasingly risk-averse, corroding trust in the chain of command and weakening operational effectiveness. These concerns lay bare a substantial degree of unease about the role that law and legal processes play in an area as sensitive as the deployment of the military. However, whilst it is widely acknowledged that the progressive juridification of the British armed forces presents significant challenges, no consensus exists on the nature and true extent of its impact on military operations.

The purpose of this paper is to revisit the juridification debate and refocus it with the aim of promoting a more nuanced understanding of the subject. Previous contributions to the debate have mischaracterized the nature of the problem and as a result have advocated policy options which are overly ambitious in some respects and too complacent in others. There are four aspects of the subject which would benefit from more differentiated treatment. First, the nature of the process: what exactly is juridification and what is driving it? Second, its impact on military operations: how and to what extent does juridification undermine operational effectiveness? Third, what strategic options are open to the Government to counter the negative effects of juridification? Fourth, what means and methods are available to put such a strategy into action? Since it is imperative to gain a better understanding of the nature of juridification if we are to develop realistic strategies for preserving the operational freedom and effectiveness of the armed forces, I will focus on the first and third of these questions in the present article. I will do so by concentrating on the role of international human rights law, in particular the European Convention on Human Rights (ECHR), as it is developments in this area of law which have proved to be the most controversial for reasons which I will explore throughout this article.

The article makes two main claims. First, the legal framework governing the activities of Britain’s armed forces is multilayered and therefore more complex than has sometimes been admitted. It is therefore unrealistic to expect that the process of juridification can be arrested or even reversed. The military ethos can be safeguarded from legal constraints only by striking a balance between the competing legal and policy considerations involved. Maintaining such a balance calls for a constant and proactive effort on part of the armed forces and the Government. Second, the progressive extension of international human rights law to the armed forces, in particular to overseas military operations, presents significant challenges. It is a source of legal uncertainty and has demanded wide-ranging adjustments in the way the armed forces conduct their business. The impact of international human rights law on the law of armed conflict is of particular concern, as it threatens to tilt the balance between military and humanitarian considerations in favour of the latter. However, claims that human rights law is incompatible with the armed forces are exaggerated and unconvincing as a matter of law, fact and policy. The notion that the UK should designate the law of armed conflict as the relevant body of law to govern overseas operations paints too schematic a picture of the applicable law.

Keywords: armed forces, human rights, operational effectiveness, legal encirclement, ECHR, Fog of Law, lex specialist