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HUMAN RIGHTS OF
SERVICE PERSONNEL
When discussing the application of international
human rights law to service personnel, commentary
has tended to focus on the role of service members
as duty bearers. This is understandable, particularly
in light of the recent publicity given to UN
peacekeepers engaging in sexual exploitation and
abuse. Consequently, whilst much has been
written on the legal frameworks surrounding the
investigation and prosecution of service personnel
alleged to have committed human rights abuses,
there is less discussion surrounding service
members as bearers of rights.
However, service personnel also enjoy the
protection of international human rights law like
other members of society. The International
Covenant on Civil and Political Rights (ICCPR), to
which Australia is a party, reinforces this point. The
Covenant requires states ‘to respect and to ensure
to all individuals within its territory and subject to
its jurisdiction the rights recognized in the ...
Cove n a n t ’.1 Australia is bound by the Covenant as a
matter of international law, although it has not been
comprehensively implemented in domestic law.2
Service members have not made many complaints
to the UN Human Rights Committee, which
oversees the implementation of the ICCPR. The
European Court of Human Rights, in contrast, has
decided numerous cases about the rights of
service personnel under the European Convention
on Human Rights (ECHR).3 Several of these cases
concern the application of fair trial rights in military
justice systems, for example, where a military
court or tribunal has allegedly not met the
standard of impartiality or independence required
by the ECHR.4 Indeed, national military law in
some European states has changed dramatically
because of human rights litigation.
The extent of the rights of service
members clearly cannot be
identical to that of other members
of society. Armed forces need to
maintain a far higher level of
discipline than most workplaces
and service personnel can
intentionally be placed in harm’s
way. Courts have recognised that
the extent of the protection given
to service members must
reasonably account for life and
service in the armed forces.5
On that basis, human rights may be qualified.
The manner in which that happens, however,
remains surprisingly unclear. There are several
possible options.
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RAIN LIIVOJA
Rain Liivoja is an Associate Professor at the TC Beirne School of Law, University of
Queensland, where he leads the Law and the Future of War research group.
ALISON DUXBURY
Alison Duxbury is a Professor at Melbourne Law School, University of Melbourne, and an
Associate Director of the Asia Pacific Centre for Military Law.
RESERVATIONS
The most radical option is for states to make
reservations to human rights treaties concerning
the armed forces. As unilateral statements intend
to modify the application of particular treaty
provisions, the effects of reservations can be far
reaching. A state could, by means of a reservation,
completely deprive service personnel of some
rights, as long as this is not prohibited by the
treaty itself or incompatible with the object and
purpose of the treaty as a whole. For example, on
that rationale, reservations to the Convention
against Torture would be inconceivable.
In practice, States have been sparing in their use
of reservations to the ICCPR when dealing with
the human rights of service personnel. Most
notably, France and the United Kingdom have
made reservations to the ICCPR regarding the
application of military discipline with the intention
of preserving the processes of military justice
systems.
INTERPRETATION
The second option is to interpret concepts or
terms of human rights treaties differently when
applied to service members. The European Court
of Human Rights did precisely that in the landmark
case of Engel v Netherlands,6 which concerned
detention in the armed forces. The Court held that
the right to liberty and the associated right not to
be detained without a legal basis needs to be
interpreted in light of ‘the particular characteristics
of military life’.7 Specifically, what might amount to
detention in civilian society might not amount to
detention in the armed forces.
While the reinterpretation of a treaty in light of the
dictates of military life seems like a promising
option, those involved in overseeing the human
rights treaties have used it sparingly. Part of the
reason may well be that while some rights (for
example, the concept of detention) may be open
to contextual interpretation, others are not. For
example, it is not possible to suggest that torture
has a special meaning in view of the
characteristics of military life – what is torture in
civilian society cannot but be torture if practised in
the armed forces.
WAIVER
The third option is to regard service members as
having waived some of their rights by signing up
for military service. Thus, in a case concerning
freedom of religion, the European Court of Human
Rights found that, ‘[i]n choosing to pursue a
military career [a service member] was accepting
of his own accord a system of military discipline
that by its very nature implied the possibility of
placing on certain of the rights and freedoms of
members of the armed forces limitations incapable
of being imposed on civilians.’8
But it is not clear how far such implied waivers
may go. A waiver is not only about the rights of the
individual, but also the public interest in protecting
certain rights. Consequently, in the context of a
case involving a potential waiver by a service
member of the right to fair trial,9 the European
Court of Human Rights held that a waiver of rights
by an individual must not ‘run counter to any
important public interest.’10 Treaty bodies are
unlikely to treat the act of joining the armed forces
as a basis for a comprehensive waiver of human
rights. In any event, the idea of a waiver loses its
persuasiveness when dealing with conscripts. Yet
armed forces that have conscripts typically limit
their rights to the same degree, if not more
extensively, than those of volunteers.
LIMITATIONS
Finally, the rights of service members may be
restricted through limitations clauses contained in
human rights treaties. Most rights contained in
international human rights law are not absolute –
they can be restricted when considered necessary
in a democratic society for the protection of an
important value, including national security, public
health or safety or the rights of others. In
accordance with this approach, the restriction of
the rights of service members must have a basis
in law, must have an identifiable public interest
aim, and the restriction must be proportionate to
that aim. The European Court of Human Rights
has accepted that a service member’s right to
freedom of expression can be restricted ‘where
there is a real threat to military discipline’.11
However, in considering whether the restriction on
the right is ‘necessary in a democratic society’,
the Court will carefully consider whether there has
been an objective impact on military discipline.12
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The requirement of proportionality can play a
critical role. For example, the ICCPR includes the
right to freedom of religion but it also provides that
the freedom can be limited by law where it is
‘necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms
of others’.13 It would not be possible to broadly
require all military personnel who, for religious
reasons, have facial hair to remove that hair.
Rather, such a restriction on the right of religious
freedom would need to be assessed on the basis
of the limitations outlined in the relevant treaty. As
a result, it may be that facial hair is prohibited for
service members who need to wear a mask, such
as divers or fighter pilots, because an appropriate
seal cannot otherwise be achieved.
CONCLUSION
The protection of the human
rights of military personnel is a
complex legal issue involving
debates about the role of the
armed forces in a society. Service
members do not simply give up
their rights and freedoms on
entering the armed forces.
The mere fact of military service and the existence
of the chain of command or military traditions do
not, in and of themselves, provide a sufficient
basis for restricting the enjoyment of human rights.
Instead, the starting point for any discussion
involves an acknowledgement that military
personnel are entitled to the protections of human
rights law and that any restrictions on their rights
considered necessary in light of life in the armed
forces should be carefully interrogated.
When considering the different ways in which
restrictions on the human rights of service
personnel could be legally justified, the reliance on
limitation clauses seems to be the most promising
option. The practical implications of this
conclusion are significant. Notably, restrictions
placed on the human rights of service members
under limitation clauses must be assessed using
the threefold test of lawfulness, legitimate aim and
proportionality. Meeting the requirements of
lawfulness and legitimate aim (such as national
security) would not pose significant obstacles for
states. Crucially, however, proportionality would
require a careful balancing exercise where the
intrusiveness of the restriction on human rights is
weighed against the aim of that restriction. Hence,
stating that some rights may be restricted in the
armed forces for the purposes of national security
or operational effectiveness is not the end of the
enquiry, but the beginning.
1. International Covenant on Civil and Political Rights,
adopted 16 Dece mber 1966, 999 UNTS 171 (entered
into force 23 March 1976) art 1 (emphasis added).
2. For a recent statement on the status of the ICCPR in
Australian law, see Joint Standing Committee on
Foreign Affairs and Trade, Interim Report – Legal
Foundations of Religious Freedom in Australia,
November 2017, p. 67. For a discussion of Australia’s
implementation of human rights treaties, see H.
Charle sworth, Writing in Rights: Australia and the
Protection of Human Rights (Sydney: UNSW Press,
2002), pp. 56–8.
3. Convention for the Protection of Human Rights and
Fundamental Freedoms, adopted 4 Nove mber 1950,
213 UNTS 221 (entered into force 3 September 1953).
4. Such cases include Findlay v United Kingdom (1997) 24
EHRR 221 and Grieves v United Kingdom ( 2003) 39
EHRR 2.
5. See, for example, Engel v Netherlands (1976) 1 EHRR
647, para 54; Smith and Grady v United Kingdom (1999)
29 EHRR 493, para 89.
6. Engel v Netherlands (1976) 1 EHRR 647.
7. Ibid para 54.
8. Kalaç v Turkey (1997) 27 EHRR 552, para 28
9. ECHR ar t 6.
10. Thompson v United Kingdom (2004) 40 EHRR 11, para
43.
11. Grigoriades v Gre ece (1997) 27 EHRR 464, paras 45.
12. Ibid paras 47-8.
13. ICCPR ar t 18(3).
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