Human Rights of Armed Forces Personnel
a state would even need to consider derogating from the rights in question, and for that
reason derogations of these rights are rarely necessary. For the most part, where the rights
of members of the armed forces are limited, this is because the right is a qualified right,
rather than because of a derogation.
Limitations
Many of the rights mentioned earlier as having particular significance to members of the
armed forces are qualified rights. This means that the rights in question are not absolute,
in that states may restrict these rights provided certain conditions are met. Limitations
must be “in accordance with law” or “authorized by law”, and “necessary in a democratic
society” for one of a number of specified legitimate aims. The legitimate aims most relevant
to situations involving members of the armed forces are those that are “in the interests of
national security”, although on occasion “the prevention of disorder” and the protection of
the “rights and freedoms of others” have also been cited.
Importantly, the ability to invoke one of these recognized legitimate aims does not
provide the state with unfettered discretion to limit the rights of members of the armed
forces. Rather, the limiting measure needs to be both necessary and proportionate to the
legitimate aim pursued. Disagreements regarding restrictions on the rights of service
personnel often come down to assessing which limitations are necessary and proportionate
and which are not. In this context, the European Court of Human Rights has noted that “[a]
wide margin of appreciation is afforded to the States in matters relating to national security
in general and the armed forces in particular”.57
It must be emphasized, however, that some rights may not be subjected to such limitations.
For example, the prohibition of torture and other acts of cruel, inhuman or degrading
treatment is absolute. Thus, interests of national security, however important, cannot be
invoked to impose inhuman punishments on members of the armed forces.
Domestic implementation
The domestic effect of international human rights law varies considerably from state to
state, owing to divergent constitutional provisions. In some states, treaty obligations
binding upon the state are automatically part of domestic law and, in some cases, are
given priority.58 In these states, domestic courts can apply human rights treaties directly in
disputes involving individuals.
48
57
European Court of Human Rights, Konstantin Markin v. Russia, op. cit., note 47, para. 134.
58
See, for example: Constitution of the Kingdom of the Netherlands, 24 August 1815, Art. 94; Constitution of
the Republic of Estonia, 28 June 1992, Art. 123(2).
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