The fear that legitimate combat decisions may be exposed to extensive and retrospective legal review and challenge not just scrutiny is having a detrimental effect on leadership in HM Forces, say the Defence Select Committee in their report into the legal framework for future operations.
UK military personnel as individuals are properly subject to UK and international law wherever they serve and there are processes to ensure scrutiny of their individual behaviour and legal compliance but, in the last ten years, legal judgments in the UK and elsewhere against the MoD have raised a number of legal, ethical and practical questions for the Armed Forces and their conduct of operations.
The growing number of such challenges is leading to a feeling of disquiet amongst military personnel and informed commentators about the extent and scale of judicial involvement in military matters.
International Humanitarian Law (IHL), also called the Law of Armed Conflict (LOAC), was developed to regulate armed conflict and has largely stood the test of time. But recent non-international conflicts have found a tension between IHL and human rights law.
There are two aspects of the use of human rights law in military operations that most concern the Committee:
- The extraterritorial application of the European Convention on Human Rights has allowed claims in the UK courts from foreign nationals. Detainees should be treated with humanity and respect. However, the requirement for full and detailed investigations of every death resulting from an armed conflict is putting a significant burden on the MoD and the Armed Forces, not just in resources spent but in the almost unlimited potential for retrospective claims against them.
- There has been a failure of the accepted principle of combat immunity, most recently evidenced in the Supreme Court majority judgment in June 2013 allowing families and military personnel to bring negligence cases against the MoD for injury or death. This seems to us to risk the judicialisation of war and to be incompatible with the accepted contract entered into by Service personnel and the nature of soldiering.
Chairman of the Committee, RT Hon James Arbuthnot, says
"This conflict between the Law of Armed Conflict and Human Rights Law could actually lead to greater bloodshed. A risk-averse commander, reluctant to send troops forward, may increasingly turn to using indirect support such as air strikes with greater consequent violence against the opposition and potentially more civilian deaths.
Unless Government policy, military doctrine and legal principles are clarified, then uncertainty for military personnel and claimants will continue to grow. For these reasons, we are convinced that the Government now needs to address these issues strategically rather than reacting on a case by case basis."
The next Defence and Security Review provides the Government with the opportunity to look strategically at the legal framework for future armed conflict and the whole spectrum of military operations including peacekeeping and post-conflict stabilisation. As future operations are likely to involve civilian staff from departments such as International Development, the Home Office and the Stabilisation Unit and increasingly the staff of contractors as well as Armed Forces personnel, work needs to be cross Government.
There are many possible solutions and the Government should not shy away from putting new legislation before Parliament.