Rights activists and lawyers are up in arms over Britain's plan to suspend an international human rights convention during times of war, a step the government said would protect British troops from "spurious" legal claims of torture and murder against them.
The move by British Prime Minister Theresa May followed years of mounting anger in the Conservative Party and the country's tabloid press over thousands of cases filed against soldiers who served in Iraq. The British government has spent about $135 million since 2004 defending the cases, many of which were launched under the European Convention on Human Rights, and the government has paid out $24 million in the settlement of 326 cases without admitting liability.
Britain's tabloid press has railed against what they see as meddling, unelected European judges, arguing they are wrecking British law.
Under the plan, Britain would temporarily suspend parts of the Human Rights Convention before planned military actions. The suspensions would mainly focus on Article 2, which imposes upon the 47 signatory states the duty to refrain from unlawful deprivation of life, to investigate suspicious deaths and to prevent avoidable deaths.
Established in 1953 and effective across Europe, the convention grew out of a continent-wide determination never to see again the appalling rights violations of the Second World War and was inspired partly by Britain's wartime leader, Winston Churchill. It was drafted in large part by the British Conservative politician and Nuremberg trials prosecutor David Maxwell Fyfe.
Despite the antecedents, Britain's Conservatives have been targeting the European Convention on Human Rights for years and the European Court of Human Rights, which hears convention cases. They claim the convention is a charter for "ambulance-chasing lawyers" and "bleeding-heart judges."
In January, May's predecessor, David Cameron, promised to crack down on an "industry trying to profit from spurious claims" against British servicemen and hinted that Britain might eventually withdraw altogether from the pact.
That prompted criticism from commentator Nick Cohen, in The Guardian newspaper, who said, "We are now in a grimly comic country, where in one breath Cameron rightly denounces Vladimir Putin's contempt for the rule of law. In the next, he proposes to exempt British troops from legal accountability."
Troops' hard choices
May said suspending parts of the convention during conflict would allow British troops to take "difficult decisions" on the battlefield without fear of having dubious legal claims filed against them when they returned home. She and her ministers said that the government and its military would still adhere to the Geneva Convention on Human Rights, and that claims of egregious violations by British soldiers could still be brought before domestic courts because they'd breach British and military law as well as the Geneva Convention.
Writing in The Times newspaper, Simon Brown, a former British Supreme Court judge, argued armed conflict should be governed by international humanitarian law and not European human rights law, saying it was "bizarre" that British troops in Iraq or Afghanistan should be subject to the ECHR when those of allies such as the United States are not.
But rights lawyers warn the old legal codes such as the Geneva Convention have on the whole been unenforceable. And they argue May's plan to secure impunity from the the convention for rights violations by British forces is unworkable because it would be opposed by judges at the European Court of Human Rights in Strasbourg.
"We would then need to withdraw from the convention in order to make Britain's impunity work properly," cautioned Conor Gearty, a professor of human rights law at the London School of Economics and a founder of Matrix, a group of rights lawyers in the British capital.
That, he argued, would undermine the convention and lead to a weakening of "human rights protection for millions of people in the U.K. and across Europe, including in countries like Russia and Turkey where the court can offer the only chance of justice for those whose rights are abused."
Britain has long bridled at coming under the jurisdiction of the Court of Human Rights. In the 1950s, Britain sustained unfavorable rulings concerning action in Cyprus. And in 1977, London was furious at a court ruling that found Britain guilty of "inhumane and degrading treatment" of Irish Republican internees in Northern Ireland.
Among the 326 ECHR cases brought against British forces that have been settled by the Ministry of Defense are actions filed by the relatives of those who have died while being detained in Iraq. The British government paid $130,000 to the family of Saeed Shabram, who drowned after being detained by British troops.
Fearful of facing an investigation by the International Criminal Court at The Hague, in 2010 Britain began an inquiry into allegations of abuse involving the alleged mistreatment of 1,514 Iraqis, including 280 who died either while in custody or at the hands of British troops.