Human Rights Jurisprudence in relation to the Armed Forces

The third “silent leges inter arma” conference organised by the Belgian Group under the Auspices of the International Society for Military Law and the Law of War was held in Bruges from 17 September until 20 September 2019. This conference brought together no less than 95 participants from 30 different countries to address different legal issues affecting the armed forces. On 19 September, EUROMIL chaired a panel discussion on “Recent Developments of Human Rights Jurisprudence in relation to the Armed Forces”.

The conference started with a keynote speech from the Minister of Security and Interior, Pieter De Crem, who talked about “The Need for Borders in a EU without borders” where he focused on migration issues and how to deal with them once the Brexit is pronounced.

Then, the first panel addressed the “Challenge of Evidence Gathering in Conflict Areas and Prosecution of Foreign Fighters”. Among others, speakers discussed information exchange between military and law enforcement structures and and problems occurring with the military, such as overclassification of information about terrorist activities. In addition to being available, information should then be admissible in courts and properly used in prosecutions.

In the afternoon, a visit to Flanders Fields in Ypres was organised and an explanation on chemical weapons that continue to be found in the neighbourhood was given.Finally, this rewarding day ended with the attendance at the “Last Post” ceremony at the Menin Gate.

On the second day of the conference, a panel on “Recent Developments of Human Rights Jurisprudence in relation to the Armed Forces” was chaired by Emmanuel Jacob, President of EUROMIL.

Colonel (GS) Chris De Cock, Legal Advisor to the Director of the MPCC, delivered a keynote speech on the compatibility of human rights jurisprudence with the conduct of military operations. The first part of his speech addressed the lack of consistency among international courts in attributing responsibility for conduct. The second part focused on the interplay between Law of Armed Conflicts and International Human Rights Law in view of the jurisprudence of the European Court of Human Rights and concluded that the correct legal framework should by applied according to circumstances.

The panel was then composed of Birgitta Nyström, Former Member of the European Committee of Social Rights and Professor of Labour Law at the University of Lund in Sweden, Jonna Naumanen, Human Rights Officer at the Office for Democratic Institutions and Human Rights (OSCE), Lieutenant Colonel Johan Van De Walle, Integrity Coordinator for the Belgian Armed forces and Dr. Lauren Kierans, Barrister-at-Law and Lecturer on Whistleblowing Law and Practices at the University College Dublin in Ireland.

Birgitta Nyström presented the European Social Charter and its monitoring system, undertaken by the European Committee of Social Rights (ECSR). Among others, the ECSR examines collective complaints against states that do not comply with the Charter. So far, 150 decisions have been taken by the committee including on cases related to police and military personnel. These cases addressed trade union rights, namely the right to organise (article 5) and to bargain collectively (article 6). Although restrictions to the rights and principles set by the Charter is foreseen in Article G, the decisions of the ECSR evolved in the last years as to narrowly interpret the charter and recognize trade union rights for military personnel (cfr. case 83/2012, European Confederation of Police v. Ireland, case 112/2014, EUROMIL v. Ireland and case 140/2016 CGIL v. Italy). The last cases particularly recognized military personnel the right to bargain collectively and the right to strike.

Jonna Naumanen introduced the reviewed ODIHR/DCAF “Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel” initially published in 2008 and its core concept of “Citizens in Uniform”. The handbook presents the state of play in the OSCE region as regards the situation of human rights of armed forces personnel, highlights best practices and makes recommendations. Ms Naumanen particularly highlighted recent developments as regards human rights jurisprudence in the OSCE region. Regarding political participation, restrictions lessened in the last decade. On freedom of association, she recalled the Matelly v. France and ADEFDROMIL v. France cases that concluded the right to organise in the armed forces can be restricted but not completely suppressed, as well as the cases highlighted by Ms Nystrom in her presentation on the Social Charter. Other recent jurisprudence included issues of mistreatment, bullying and unexplained death; conscientious objection to military service; and equality and non-discrimination.

Johan Van De Walle brought a national point of view in this debate and focused on hazing and bullying in the Belgian armed forces, where a comprehensive integrity policy is being implemented from 2019 onwards with the support of various actors. Complaints are handled at Inspectorate General level and support provided to the victims by the Director General Health and Well-Being (DG H &WB). In case of bullying and hazing, correctives measures are to be taken by the hierarchy. In order to punish and have a better control on these issues, a new evaluation system will be released in January 2020 that will evaluate the ethical behaviour during statutory evaluation.

Finally, Lauren Kierans spoke about a current issue occurring in armed forces, whistleblowing. She raised the question of how can military organisations deal with whistleblowers, the reasons we need them and how to protect them. She also mentioned the different personal and professional repercussions that whistleblowers have to face, for instance harassment or not being able to be promoted. Finally, she talked about the repercussion of disclosures on national security, defence and international relations. In the armed forces, staff members often face difficulties in reporting wrongdoing due to restrictions to their right to freedom of expression, their duty to obey a lawful order and national security concerns. What is important to keep in mind is that disclosures are made by workers in the public interest. In the EU, only 10 Member States have a comprehensive or fragmented protection system for whistleblowers. A Directive on the topic was therefore agreed on this year and Member States will have two years to transpose it into national laws.

The conference continued with presentations and discussions on the “Use of Propaganda and Other Methods of Influencing Other Nations” and finally concluded on the next day with recent publications in the field of International Law, Military Law and the Law of War.

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