Sari: Deployed Operations and the European Convention on Human Rights: 'Because It's Judgment that Defeats Us'

Aurel Sari (Univ. of Exeter - Law) has posted Deployed Operations and the European Convention on Human Rights: 'Because It's Judgment that Defeats Us'. Here's the abstract:

Although few would challenge the idea that Britain’s armed forces should abide by the rule of law, concerns have been expressed for a number of years that legal constraints are diminishing the freedom of action of the British military to an ever greater extent and are thereby undercutting its operational effectiveness on the battlefield. The subject has attracted renewed attention, including in the House of Lords, following the publication of 'The Fog of Law' report by the Policy Exchange in October 2013. The report offers one of the most detailed assessments of the threat posed by the 'legal encirclement' of the British armed forces and must be commended for re-invigorating the debate on this subject. Notwithstanding these achievements, 'The Fog of Law' is first and foremost a policy paper and as such lacks nuance in places. Regrettably, it runs the risk of perpetuating certain misconceptions about the applicable law and may present policy makers with false strategic choices.

The legal framework governing the conduct of British armed forces in deployed operations is complex. Despite what 'The Fog of Law' seems to suggest, there is no easy solution to safeguard the operational effectiveness of the British military from legal constraints in such circumstances. Rather than hoping for a quick fix, this paper argues that what is required is a concerted effort to maintain an appropriate balance between the competing considerations involved. The argument for special treatment of the armed forces will not be won if it does not demonstrate convincingly why such special treatment is in fact necessary. To this end, we need a better understanding of what constraints the law actually imposes on the armed forces and of the means and methods available to reduce any adverse effects on their operational effectiveness to an acceptable level. In addition, we may need a more strategic approach to lawyering than is currently the case.