The idea that Britain is contemplating breaking international law in the Internal Market Bill is not as much of an outlier as many people think. When it comes to international law, Britain is beginning to look like a serial petty offender with quite a lot of Previous. If the last three governments have got short memories, the country’s adversaries have not. They collect, collate and inflate it all to play back at us when we take the moral high ground on less petty issues that really matter to Britain. Michael Clarke discusses the charge sheet.

For a Brexit Britain that must put more faith than ever in the ‘Rules-Based International Order’, it is dangerous to get into territory where governments are arguing that its actions are ‘just about legal’ – that is, if the Attorney General doesn’t resign – or ‘arguably legal’ in cases where the laws of war have become fuzzy. Even more dangerous to argue that it would be acceptable to break international law, as it now claims in the Internal Market Bill, albeit only in a ‘specific and limited way’ (as indeed it is for a burglar who in a ‘specific and limited way’ only does one house instead of the whole street). For a country that trumpets its commitment to international law – and in a world of increasing great power strength, where smaller nations really need its various protections and procedures – it is crucial that Britain is seen to act in unambiguously legal ways. It should place itself right down the centre of the legal road, not flirt with the dubious edges of it for tactical political gains.

Of course, analysts can’t be too sanctimonious about this. It’s a tough world and with the end of the Cold War and then the 9/11 attacks most of the victorious western powers played fast and loose with international law when there were no credible adversaries. The Iraq war of 2003 still sits in the ‘just about legal’ category, though many would dispute even that. And in 2011 the western powers got a powerful UN Security Council resolution for action in Libya, then pushed it way beyond its original intentions. President Putin, who had gone along with the resolution, was furious and felt personally betrayed. He certainly won’t make what he regards as a big mistake like that again. If the boot was on the other foot and Russia had pushed a UN resolution to that extent, the western powers would certainly have added it to the charge sheet of illegality against Moscow.

But aside from the big controversies of war and peace, Britain has repeatedly flirted with some dangerous case-law for itself on smaller issues that provides cumulative ammunition to the cynics and the autocrats who love to point to the dubious legal precedents that western countries themselves set.

Extra judicial killing

The drone attacks of 2015 that killed British citizens Reyaad Khan and Rahul Amin in Syria, were at best, ‘arguably legal’ and ran counter to previous British policy on the use of armed drones in Afghanistan – previously regarded as setting the international standard on the lethal use of drones. Prime Minister David Cameron admitted to the Commons that the strike marked ‘a new departure’ and that ‘this [was] the first time … that a British asset has been used to conduct a strike in a country where we are not involved in a war.’[1] The then Minister of Defence, Michael Fallon, and his successor, Gavin Williamson, while not admitting directly to the existence of a terrorist extra-judicial ‘kill list’ both made clear that Britain would target terrorists, British or not, wherever it found them in areas of conflict, whether or not British forces were operating there and regardless of whether this country was in a state of war in such a territory.[2] In 2017 the Attorney General suggested that Britain had (de facto and without recourse to Parliament), moved to adopt the far more expansive US interpretation of ‘self-defence’ and also of the ‘imminence’ of any terrorist threat posed by a listed individual identified in a conflict zone.[3] This was a view of ‘self-defence’ Britain had explicitly disavowed in 2003 when the US first put it forward.[4] 

There was little disquiet about all this within Britain since terrorists were assumed to have got what they deserved. But some important legal lines had been stretched in these reinterpretations. The terrorist challenge has led Britain to take on the new – proactive – interpretation of self-defence, ahead of the more traditional reactive view.[5] It is hardly surprising that repeated charges of British complicity in extra judicial killings, rendition of suspects and torture by other powers, have dogged the last four British administrations.[6]

A statute of limitations to protect the military

In March 2020 the Government introduced the Overseas Operations Bill which, in effect, intends to introduce a statute of limitations of five years after which British military personnel could not be prosecuted for alleged war crimes except under very special circumstances and under a standing ‘presumption against prosecution’ guideline. The Bill was a government manifesto commitment and arose from the scandal of over a thousand largely fraudulent claims made against troops in Iraq, alongside the running sore of historic allegations from Operation Banner in Northern Ireland. Most observers are entirely sympathetic to the intentions behind the Bill, but it could become a classic example that ‘hard cases make bad law’. As written, it does not apply to Northern Ireland issues, and in trying to avoid a repeat of the slew of false Iraqi (and then Afghan) allegations, the Bill is regarded by its critics as creating more problems for the troops themselves than it solves. It distracts attention from the reality that the military got itself into some of these legal scrapes in Iraq and Afghanistan (and still does over some of its ongoing Special Forces operations) because its own battlefield investigation procedures were distinctly sub-standard.[7] There is personal testimony from some of those responsible for investigating cases that they found themselves up against systemic obstruction.[8]

More to the international point, if the Overseas Operations Bill becomes law it would put Britain at odds with the Geneva Conventions, particularly Additional Protocol 1 of 1977, as well as the Convention Against Torture and many tenets of customary international law. The International Committee of the Red Cross in its study on customary International Humanitarian Law stated very clearly that ‘statutes of limitations may not apply to war crimes’. The Committee Against Torture also took the view that states must not enact ‘legislation that would grant amnesty or pardon where torture is concerned’. An Overseas Operations Act would certainly have trouble in maintaining that it was even ‘arguably legal’ in those terms. Nor is it a trivial detail that the International Criminal Court can only claim jurisdiction over individuals whose own government is deemed ‘unable or unwilling’ to prosecute against serious allegations of war crimes. The prospect that individual British military personnel, covered in Britain by the blanket of an Overseas Operations Act, might then be indicted by the ICC on war crimes charges (and even face an arrest warrant outside Britain) should make British ministers’ blood run cold at the very thought of it.

In the same vein, section 12 of the Overseas Operations Bill imposes on the Defence Secretary the ‘duty to consider derogating from the European Convention on Human Rights in relation to certain overseas military operations.’ (The ECHR has nothing to do with the European Union – it was heavily sponsored by Britain in 1950 as a self-standing convention and then a court to protect individual rights). In 2016 the government committed itself to such a ECHR derogation, on a political backlash against the idea that British troops (or more specifically, their lawyers) were claiming that a lack of body armour, or specific training, was a violation of their individual human rights to be properly protected.[9] The best legal opinions outside of government point to severe trade-offs in making any derogation from the ECHR on such grounds really stick. Potential derogation is already built into the ECHR in times of conflict, and those areas most relevant to previous governments’ concerns, mainly under Article 3, are specifically non-derogable. In truth, the government creates an image of deep hostility towards the ECHR in all military affairs, for very little real gain in dealing with those particular cases that might arise during foreign military operations.[10] 

The Covid-19 crisis has distracted attention from these strands of government thinking but a number of senior retired military officers, legal officials and ex-ministers have expressed deep disquiet as the prospects grow of an Overseas Operations Act and largely symbolic derogations from the ECHR that would be very hard to reconcile with Britain’s long-standing obligations in international law.[11] However carefully and sensitively drafted the British Act might be, it would certainly provide an attractive model to follow for some other states, with much less concern for liberal values, as a way of avoiding the Geneva Conventions.

The Internal Market Bill

And then there is the Internal Market Bill, with its three clauses (42,43 and 45) that would unilaterally breach the Withdrawal Agreement the Prime Minister himself signed less than a year ago.[12] The Withdrawal Agreement is a formal Treaty, lodged with the UN as all formal Treaties are, and thence regarded as part of international law. Of course, these treaty-breaking provisions of the current Bill may be nothing more than a negotiating tactic – merely politics; a response to the hardening attitude of EU negotiators, and so on. And in a manoeuvre that might save the Bill, but does not alter the essential facts, there might be an amendment to ensure that Parliament would have to agree the illegality before the country breaks this particular part of international law. In contrast to domestic law, an illegal act in international law cannot become legal merely because Parliament approves it.

And this is rather the point. Adherence to international law should stand above negotiating tactics, gimmicks or larks to test the waters. And as international law goes, formal treaties are pretty important. Being prepared deliberately to break them not long after they have been signed, is not a good message for a country to send to the UN or the rest of the world. The fact that the British government seriously contemplates, in a pre-meditated way, a breach of international law over a recent treaty is reminiscent of the strange compulsion of the petty criminal to keep acting against his own best interests.

It is a remarkably short-sighted message to send. As William Hague pointed out recently, during his four years as Foreign Secretary scarcely a day went by without his recourse to the principles of international law. It is not some abstract concept, but a working body of day-to-day rights and procedures that allows states to function in the world. Random examples of its banal importance might include, demanding consular access to British nationals abroad, protecting the rights of Britain’s international companies to be treated and taxed fairly, guarding against the confiscation of British property or assets, protecting British air and sea space, reacting to Russian assassination squads coming to Britain, defining fisheries rights around inshore waters or creating maritime protection areas in waters too far away to be easily protected by force, appealing to the jurisdiction of the World Trade Organisation, or requiring of other states the agreed rights for mutual diplomatic interaction. As William Hague put it, international law ‘matters to British people every hour of every day’.[13]  

For a government to appear to show ignorance of these banal legal realities, or even worse, simple contempt for them – particularly one led by a Prime Minister who is a former Foreign Secretary – creates an impression of a serial offender whose Previous will be taken into account sooner rather than later as Britain embarks on its Brexit future.

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[1] HC Debates, 7 September 2015, vol 599 c30.

[2] See, David Willetts, ‘New Defence Secretary wages war on British IS fighters’, The Sun, 13 November 2017. See also Reprieve, ‘Government policy on drones in chaos as minister admits ‘misleading’ public’, Press Release, 4 February 2018.

[3] Jeremy Wright QC MP, Speech at the International Institute for Strategic Studies on the modern law of self-defence, 11 January 2017, Office of the Attorney General.

[4] See, Lord Goldsmith, Advice on the legality of military action against Iraq without a further resolution of the Security Council’, 7 March 2003. In this statement he said that the United States had been arguing for ‘a broad doctrine of a right to use force to pre-empt danger in the future… If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in law.’ Reported in Irish Times, 7 March 2003.

[5] The traditional – reactive – view may be expressed as the principle of not striking first, or if so, then only if faced with imminent and certain harm for which there is no other remedy than pre-emptive action.

[6] See, for example, All Party Parliamentary Group on Drones, The UK’s use of armed drones: working with partners, APPG Report, July 2018: or the Freedom from Torture statement, 17 May 2019, reporting that the ‘United Nations Committee Against Torture recommends the UK government conduct an independent judge-led inquiry into UK complicity in torture and rendition post 9/11.’ It sparked, according to The Independent, 27 January 2010, a ‘furious exchange between London and the UN.

[7] Centre for Military Justice, The Overseas Operations Bill – a very significant intervention from the Judge Advocate General, 11 June 2020: https://centreformilitaryjustice.org.uk/the-overseas-operations-bill-a-very-significant-intervention-from-the-judge-advocate-general/

[8] In private briefings to Parliamentarians, chaired by the author, during 2020.

[9] Marko Milanovic, ‘UK to Derogate from ECHR in Armed Conflict’ European Journal of International Law – Blog EJIL:Talk!, 5 October 2016.

[10] Aurel Sari, ‘The Duty to Derogate: Suspending Human Rights in a Very Limited and Specific Way?’ European Journal of International Law – Blog EJIL:Talk!, 18 September 2020.

[11] See, as the best example of many, Lord Guthrie, Letter to the Editor: ‘Don’t give wriggle room to torturers’, The Times, 7 June 2020.

[12] House of Commons Library, United Kingdom Internal Markets Bill 2019-21, pp. 51-60, at: https://commonslibrary.parliament.uk/research-briefings/cbp-9003/

[13] William Hague, ‘Breaking international law would leave Britain exposed’, Daily Telegraph, 15 September 2020.