Does Article 15 ECHR Still Matter in Military Operations Abroad? The UK Government’s “Presumption to Derogate” – Much Ado About Nothing?
Luke Dimitrios Spieker
Much has been written on the United Kingdom’s (UK’s) “presumption to derogate” from the European Convention on Human Rights (ECHR) in military operations abroad. Obviously, the government’s announcement to anticipate a general derogation under Art. 15 ECHR in case the UK engages in future deployed operations has been subject to severe criticism. Unfortunately, the inquiry of the Joint Committee on Human Rights on the proposed derogation – launched end of 2016 – had to close due to general elections and was – regrettably – not reopened since. Thus, the “presumption to derogate” still lacks a final assessment. Although the Committee received submission from leading scholars in the field, the implications of the European Court of Human Rights’ (ECtHR’s) judgment in Hassan were not at the heart of the discussion. Therefore, this contribution will put the spotlight on this seminal decision and argue that it effectively deprives Art. 15 of any purpose with regard to detentions in deployed operations. The ECtHR seems to have developed a new standard – the standard of “arbitrariness” – in case of genuine norm conflicts between the ECHR and other international regimes like International Humanitarian Law (IHL). This allows to lower the ECHR’s standard of protection to a mere minimum. What does this mean for the UK’s presumption to derogate? Much ado about nothing? Not quite. Hassan did concern prima facie only Art. 5 ECHR and was limited to “international armed conflicts”. Although I argue that it is possible to transfer the verdict to other conventional rights and “non-international armed conflicts” as well, it remains to be seen how the ECtHR will decide in this matter.