We have all found ourselves making a point and seeing the argument run away from us unexpectedly. Perhaps that was Robert Jenrick’s feeling when he was challenged on a claim that the European Convention on Human Rights (ECHR) was giving British soldiers no option but to murder terrorist suspects.
‘Our special forces are killing rather than capturing terrorists because our lawyers tell us that if they’re caught, the European court will set them free,’ he claimed. When asked on BBC Radio 4’s Today programme to provide evidence for this allegation, he temporised somewhat, pointing to claims former defence secretary Sir Ben Wallace had made in an interview with the Daily Telegraph last September. Then he retreated behind a national security shield:
Jenrick either cannot or will not provide examples to support his argument
Of course I’m not going to elaborate on particular cases because these things, these cases are not things that any minister can speak about.
It is, of course, worth bearing in mind that it was Jenrick who had raised the issue in the first place. He is also no longer a minister, nor during his 13 months as a Home Office minister was he responsible for the more ‘kinetic’ end of the security spectrum.
Let us look at his argument, however. In essence it is this: the UK’s status as a signatory to the ECHR means that the government will not seek to seize terrorist suspects from foreign countries without the cooperation of the local authorities. It refrains from doing so because the European Court of Human Rights in Strasbourg might deem these seizures illegal and require the suspects to be set free. That logic, Jenrick argues further, is driving commanders to opt for lethal force rather than attempts at apprehension, thus creating a spiral of violence.
The first problem is that we are being asked to consider this issue wholly in the abstract, because Jenrick either cannot or will not provide examples to support his argument. This may be in some way justifiable due to concerns about operational security, but it makes it very difficult to reach an informed conclusion. It feels like a theoretical seminar hypothesis rather than a hard-edged policy imperative; as Alexander Horne, a barrister and former legal adviser to Parliament’s joint committee on human rights, observed:
I don’t believe that special forces operations like these are typically litigated before the courts… the US and Israel – the countries which have done this rather successfully – are not members of the ECHR. So what precedent is he citing?
The second issue is that this presents a false dichotomy. Jenrick implies that, while the ECHR is constraining UK special forces, there would be no such limitations or legal concerns if we were to withdraw from the convention. It is not at all clear that this is the case. What we are talking about –taking suspects into custody from third countries without permission of the local jurisdiction – is what has otherwise been termed ‘extraordinary rendition’.
It was a policy pioneered by the CIA under president Bill Clinton and expanded by the Bush administration after 9/11, but it is deeply controversial and does not enjoy universal acceptance as lawful. Richard Clarke, a former US National Security Council counter-terrorism official in the 1990s, recalls in his book Against All Enemies: Inside America’s War on Terror vice president Al Gore’s assessment of a proposed operation in 1993. ‘Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.’
There is a realistic debate about how far national security considerations should be allowed to trump legal restrictions. But it is wrong to suggest that withdrawing from the ECHR would leave UK special forces unfettered or with absolute legal freedom. If the United Kingdom wants to apprehend terrorist suspects without the cooperation of host countries, it inevitably opens the door to potential legal challenges.
Withdrawing from the ECHR is a major part of Robert Jenrick’s bid for the Conservative leadership, and that is his prerogative. He is the only candidate to have committed to it, although former security minister Tom Tugendhat has said, were he to win, it would have to remain an option. There are arguments in favour of such a move, although 45 other states, including even Turkey, seem to reconcile being signatories with their national security and border control.
The use of special forces and counter-terrorism operations, however, is not a strong argument, because it leads to a shadowy and secretive world in which governments strive to say as little as possible and do not advertise all of their actions. In the wake of Kim Philby’s defection to the Soviet Union in 1963, prime minister Harold Macmillan told the House of Commons that in terms of intelligence and covert action ‘it is dangerous and bad for our general national interest to discuss these matters’.
Jenrick’s evasive protestation that ‘I’m not going to elaborate on particular cases’ suggests he has come to the same conclusion as Macmillan, albeit too late. When debating the merits of the ECHR, politicians would be wise to steer clear of the legal status of UK special forces operations. It risks exposing a whole other issue entirely, which distracts from the central argument and shines a light on more controversial areas of government. As we began to say around the time of the Clinton presidency, let’s not go there.
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