Written Evidence from Dr Aurel Sari, Lecturer in Law, University of Exeter
The European Convention on Human Rights (ECHR) is a key component of the legal framework governing the activities of the British armed forces. In recent years, the Convention’s application to military operations has come under growing criticism, leading commentators to call upon the Government to derogate from the ECHR during deployed operations. It is not immediately clear, however, whether or not derogations are in fact available to the UK in such circumstances. The purpose of this submission is to shed some light on this issue. The paper makes the following key points:
- the ECHR applies to deployed operations whenever British forces exercise effective control over a particular area or person, irrespective of whether they are engaged in active hostilities (sec II);
- where the ECHR applies, British forces are bound to secure either the entire range of substantive rights guaranteed by the Convention or those which are relevant to an individual, depending on the circumstances (sec III);
- where the ECHR applies, a derogation from the Convention may be highly desirable, since it appears that in proceedings under the ECHR British forces will formally benefit from the often more liberal rules of the law of armed conflict only as a result of such a derogation (sec IV);
- contrary to the jurisprudence of the House of Lords and the Supreme Court, State practice and the Strasbourg case-law suggests that derogations are available during deployed operations (sec V);
- derogations should not be looked upon as a panacea, as their legal effects may be limited (sec VI).