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Dispatches: A Proposal for Lawlessness in British Military Detention

Should British soldiers overseas get a pass on respecting human rights in the exercise of their duties? The UK think-tank Policy Exchange appears to think so, arguing in a new report that growing recognition that soldiers and the people they detain have rights “undermine” the armed forces by tying them up in litigation or making commanders afraid to take decisions in battle for fear of later being sued.

The authors have it wrong on a number of fronts. First off, applying human rights law to military forces and to conflicts isn’t new – one of the first cases brought under the European Convention of Human Rights (ECHR) in the 1950s involved allegations of British military use of whipping, collective punishment, and arbitrary detention during the conflict in Cyprus. The ECHR has been used many times in addressing the human rights violations committed by Turkey in its conflict with Kurdish groups, and more recently with Russia's actions in Chechnya. The UK has not objected.

One of the areas in which the authors do not want human rights to apply is in detention by UK forces overseas. That would include even the most basic of rules – the requirement that all detainees be brought before an independent judge to review the legal basis for their detention (and deter abuse); that when someone dies in detention or emerges apparently tortured, an independent inquiry is conducted and if crimes are found to have taken place those responsible must be prosecuted.

The UK failed on all these counts in Iraq. Its forces detained people on the vaguest of grounds (including those accused of looting) for years on end without ever allowing them to see a judge. There remain hundreds of allegations of deaths, torture, and other abuses in detention against UK forces during their years in Iraq. A decade on, only one has been fully investigated, that of the hotel receptionist Baha Mousa, who was found to have been beaten to death in a British military detention center.

The authors make one important point – the rule of law needs to be enforced even on the battlefield. But they think international humanitarian law (IHL) is enough. Maybe this is because they mistakenly believe that only IHL applies in wartime. In fact, as the Red Cross has made clear, human rights law applies at all times.

The authors also don’t acknowledge that the UK is failing to apply even IHL to its military operations, as shown in Iraq, where many of the allegations of torture and other abuses would amount to war crimes if proven. But even in the proven case of death through abuse of Baha Mousa, only one soldier, a corporal, was convicted of war crimes, and sentenced to one year in prison. Senior military and political figures who may have criminal liability as commanders have never even been investigated.

And IHL in itself is not enough for situations like detention in Iraq during military occupation by allied forces. As a matter of logic and fairness, why should a civilian in British military custody in Iraq have fewer protections against abuse than some detained by the military in the UK? The UK should apply both human rights law and, during a conflict or military occupation, IHL, to its detention overseas.

The authors inevitably complain about the cost. They fail to acknowledge that this cost of protecting rights would be drastically reduced if the UK government ensured its armed forces obeyed the law, and held those accountable who did not, rather than fighting every attempt at accountability through the courts. 

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