Hi Barry,

Interesting. This 'news' had passed me by. Funny enough I am actually in Lincolns library right now doing some marking while my daughter is in the cinema... any excuse to get distracted.

The initial reaction is that it looks like cheap political point scoring off the back of the disgusting Blackman case and the gross coverage it generated. 

In practical terms, I am not sure this is a substantive change. I know from first-hand experience the troops do not get any education in the EU regs. Rather, the very limited time we do get with them on this topic is limited to some just war banalities and then LOAC. It is rather perfunctory and box ticking. The EU Human Rights Convention is not even a box that is there to be ticked and so it's a straw man. Few will notice its gone. So few positives, I have not looked into the merits of the so-called plethora of frivolous claims. But me thinks they doth protest too much.

Massive negatives in terms of what little is left of the European alliances. But then nobody seems to care about that anymore...

In answer to your question - No - they must not be protected, military (in fact any uniformed) exceptionalism must be avoided IMHO. 

Best

Tom

good greeting:

It is important to monitor the actions of soldiers and military forces and should continue to apply the laws in case of any violation with emphasis on respect for the soldier

Not always. But those areas where terrorism prevail. Soldiers can be exempted from human rights otherwise terrorists will kill them. If soldiers ask for or wait for permission then terrorists will do huge damage. Remember professional soldiers commonly do not violate human rights.

no

No. This represents a negative effect on the concept of an international rule of law

 It should not

Dr. Turner,

A great question. Based on the idea that there are two different environments, specifically wartime and occupation, I think that the Law of Land Warfare as described in Army Field Manual 27-10 should suffice for human rights.

To address the heart of the question, there are already sufficient punishments in place against soldiers who step out of bounds. In the U.S., soldiers who do not uphold the value of respect for life are prosecuted. More importantly, Alexander (2015) wrote that one history of International Humanitarian Law (IHL) is one of oppression and imperialism. Yes, soldiers should be protected from human rights litigation, and Alexander (2015) pointed out that there is already a negative effect on the concept of an international rule of law.

Additionally, when it comes to IHL, there are already provisions in place, specifically for treatment of detainees/prisoners.

For example, if an interrogator told a detainee that he would not be able to write letters to his family, it may not necessarily be a Law of Land Warfare violation (since it is possible the commander of the camp deemed them to not have prisoner of war status as outlined in Article 71, or perhaps the interrogator said something they should not have said) but it may certainly be a violation of IHL. The rules pertaining to letters is outlined in Article 147, and it only addresses prisoners of war. The distinction between the Law of Land Warfare and IHL appears when the ICRC performs their unannounced visits to the camp to evaluate the conditions and speaks to the detainees, and the detainees notify the ICRC member that they have been forbidden from writing letters, the ICRC will file a report with the U.N. and sanctions will be levied against the occupying power. This is supposed to happen in theory, and I could find no specific examples in recent history to demonstrate this. The ICRC members who described this also informed me that any IHL violations reported to the U.N. are typically not made public.

Alexander, A. (2015). A short history of international humanitarian law. European Journal of International Law, 26(1), 109-138, https://doi.org/10.1093/ejil/chv002

International laws of war as presently constituted are profoundly immoral; they favor terrorist aggressors and undermine legitimate sovereigns by abrogating the latter's absolute right to self-defense. International laws that, for instance, insist on proportionality and the avoidance of civilian casualties, even to the point of imperiling the lives of sovereign servicemen, are morally indefensible. Effective self-defense necessitates the use of any and all force necessary to annihilate the rogue aggressor, rendering it incapable of any future aggression. Proportional responses in war are imbecility writ large. Adhering to these international norms means the superior non-aggressor must fight the inferior aggressor on the aggressor’s terms. The most solemn responsibility a sovereign owes its citizens is the defense of their lives, liberties, and properties. International laws of war imperil all three.

Here is a proportional response:

EXECUTIVE DEPARTMENT.RICHMOND, Va., April 16, 1861. 

HON. SIMON CAMERON, Secretary of War: 

SIR: I received your telegram of the 15th, the genuineness of which I doubted. Since that time (have received your communication, mailed the same day, in which I am requested to detach from the militia of the State of Virginia "the quota designated in a table," which you append, "to serve as infantry or riflemen for the period of three months, unless sooner discharged." 

In reply to this communication, I have only to say that the militia of Virginia will not be furnished to the powers at Washington for any such use or purpose as they have in view. Your object is to subjugate the Southern States, and a requisition made upon me for such an object -- an object, in my judgment, not within the purview of the Constitution or the act of 1795 -- will not be complied with. You have chosen to inaugurate civil war, and having done so, we will meet it in a spirit as determined as the Administration has exhibited towards the South. Respectfully, 

JOHN LETCHER.

It is a negative effect. The military know what is acceptable or not under their rules of engagement, the Geneva conventions and treaties. Torture, genocide, rape, and murder among other offences can and should result in prosecution. The fact that someone is in conflict with another does not mean that anything goes.

It is a concerning proposal. Military conflict or rather the operational effects of military policies, practices and procedures have been recognised as having the most serious potential to infringe human rights. Military conflict is not carte blanche permission to simply role over 'rules of engagement'  The ECHR central protections are for 'human life, dignity, and privacy'. These conceptions of human existence are part of nexus of the ' Rule of Law'. Simply withdrawing from the ECHR is perhaps a concern in terms of procedural law, but in terms of substantial rules of law, the convention will remain effective as the jurisprudence is highly influential even as a secondary source of law.

Any soldier that is deployed, this could be at home, abroad or to services such as NATO or the UN, should face legal prosecution if rules are broken. Rules that have been broken when troops are under NATO or the UN have often not been followed up on, this can tarnish the forces image. In the past there has been one case, (in my memory), where a soldier has been prosecuted for breaking rules, specifically the Geneva Convention. This was done under UK leadership and the accused was prosecuted. I do not want to mislead anything and say that is a day-to-day occurrence, but this cannot be the only incident. This leads us to believe that a lot of the occurrences are not prosecuted, and on scales as large of this international law struggles to work.There have been many cases/stories of military personnel performing derogatory acts on natives of a host nation and not being held accountable. The UK along with the USA and many other EU nations are seen as 'protectors', especially to those in poorer economic states, if we are seen to be going against the ECHR, or not holding troops accountable for actions will this lead to an increase in terrorism and further separation between the west and other countries? In a personal opinion the only way the conservative government could make these changes without huge fallout is if the ECHR is fully incorporated within the Geneva Convention and UK Service Law. The true effect will not apparent until after it has happened. It will have a negative effect on the international rule of law. However, it could have a positive effect on the UK and the military. It would mean that rules could be enforced, and if rules are broken the correct prosecution can be made. In a personal opinion I think it could be good for the UK to follow through with the proposed plan, as long as it does include a large majority of the ECHR.

First of all we must bear in kind that IHRL is intended to protect individuals. That protection is both negative and positive. Negative in he sense that even in times of conflict soldiers should not violate the rights of individuals. Positive in that they must also protect those individuals from harm. These obligations extend to peacekeeping troops as well and rights guaranteed to individuals must be ensured to everyone within their area of control.

Certain laws maybe applied but trictly confined to international human rights or humanterrian law that must be applied where they must also meet specific rules and conditions with restriction in carrying out their duties. However, in the war zone Human rights may not applicable for some other reasons.