Case Study - Clearing the Fog of Law

In 2014, Dr Noëlle Quénivet (UWE Bristol) and Dr Aurel Sari (University of Exeter) were awarded a grant from the British Academy/Leverhulme Trust to work on the Clearing the Fog of Law project.

The aim of this project was to investigate the impact and understand the challenges of international human rights law on the deployment of the British armed forces overseas. In recent years, decisions by national and international courts have confirmed the applicability of international human rights law to deployed military operations. Since this development, senior officers and policymakers have expressed their concern that the human rights norms risk undermining the military effectiveness of British armed forces on the battlefield.

Noëlle and Aurel organised workshops at both UWE Bristol and the University of Exeter to discuss the challenges in applying the European Convention on Human Rights (ECHR) to military operations. Attended by academics and military advisers from the UK, the Netherlands, Belgium and Poland, they encouraged discussion on applying the ECHR to military operations abroad as well as good practice.

The workshops resulted in the publication of an occasional paper of the Strategy and Security Institute of the University of Exeter and enabled us to consider possible solutions, as well as build relationships with stakeholders. They also gave them the opportunity to gain a better understanding of the legal constraints imposed by international human rights on British forces during overseas operations.

It was useful to hear about specific instances where the law ‘appeared’ to hinder the real and perceived military effectiveness of British armed operations. As a result, the project enabled the researchers to better appreciate how the law is applied in this area and both the real and perceived impact on military effectiveness.

Our research suggests that some of the concerns are justified. Human rights law does pose significant legal and practical challenges to the deployment of military force, which are difficult to resolve. However, our research also suggests that the risk to operational effectiveness may be exaggerated. The project confirms that an effective resolution requires a greater willingness from the human rights community and the armed forces to accommodate the conflicting legal and practical considerations.

The researchers are now working on a number of academic articles relating to the applicability as well as application of the ECHR to British and other military operations abroad.

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