Daragh MurrayEdited By: Elizabeth Wilmshurst, Françoise Hampson, Charles Garraway, Noam Lubell, Dapo Akande
While the relevance of international human rights law to armed conflict has long been affirmed by the International Court of Justice, the practical application of that body of law to theatres of war is a matter of some difficulty. The various international human rights courts and other entities have all pronounced on different aspects of it. I doubt whether there is a more fast-moving or important area of the law than that which the authors of this book have tackled. In Al-Skeini and others v. United Kingdom1 the European Court of Human Rights redefined the test of the jurisdiction within which States are obliged to comply with the European Convention, and the manner in which they are obliged to do so. In Bankovic v. Belgium2 the Grand Chamber had ruled that jurisdiction was essentially territorial. Subject to some exceptions, the Convention applied to the way that Member States treated people within their own territories. Within such jurisdiction all the Convention rights had to be respected; there was no question of having to comply with parts of the Convention in circumstances where Member States could not comply with all of it. There was no requirement to ‘divide and tailor’ Convention rights according to the particular situation. Nor was it legitimate to apply the doctrine that the Convention was a ‘living instrument’ so as to expand this jurisdiction. In Al-Skeini the Grand Chamber disregarded this and recognized a much wider test of jurisdiction. A State would have jurisdiction for the purposes of the Convention whenever its agents exercised control and authority over an individual and it was appropriate to ‘divide and tailor’ the Convention so as to impose on a State the obligation to protect those rights that fell within its control even though there were others that it was not in a position to protect.
The consequence of this decision is that the Convention is now applied by Strasbourg to the conduct of the armed forces of Member States, where these are taking part in military operations in foreign countries. In such circumstances, however, States are also subject to the law of armed conflict contained in the four Geneva Conventions, or ‘international humanitarian law’ as this is somewhat euphemistically described, and other Conventions that deal specifically with the (p. vi) use of armed force. In Hassan v. United Kingdom3 the Strasbourg Court recognized that in circumstances of military activity the Convention had to be read with international humanitarian law, but how the two interrelate is no easy matter.
In their introduction to this work, the authors comment that it ‘has not been an easy book to write’. Its aim is to provide specific guidance to the military lawyer, the judge, and the practitioner, and indirectly to those serving in the field, in respect of the requirements of the amalgam of human rights law and the law of armed conflict in the specific situations that arise in armed conflict. This has been no easy task as the law is on the move and ‘classification of military activity can be a complex and challenging endeavour’. They have helpfully differentiated between what they have termed ‘active hostilities’ and ‘security operations’. In relation to the former the law of armed conflict plays the predominant role, whereas in relation to the latter it is human rights law that is dominant.
The first part of the book gives an overview of these two bodies of law, giving due prominence to the effect of Al-Skeini. The second part gives practical guidance to armed forces on the ground. Whom can they lawfully try to kill in the course of armed conflict and whom must they try to protect? Which weapons are legitimate and which outlawed in all circumstances? What are their obligations in respect of prisoners of war, and the civilian population? How does the test of proportionality apply when planning a bombing raid, and what is the very different test when deciding whether to detain a terrorist suspect? These are questions that our armed forces have to answer in the heat of military operations. They, and indeed the armed forces of other nations, need the best guidance that they can get. This ambitious work should help those who have to advise them to pick their way through a legal minefield.
Lord Philipps of Worth Maltravers