Written evidence from ForcesWatch
A. INTRODUCTION
1. ForcesWatch is a network of organisations
and individuals concerned with ethical issues relating to the
Armed Forces. As the Armed Forces Act is the primary legislation
that provides the basis for military law in the UK, we are raising
our concerns relating to the human rights of service personnel
with the Armed Forces Bill Committee. We make a number of recommendations
to bring the UK into line with current international standards
and improve terms of service.
Complying with international standards on the
minimum age of recruitment
2. The UK is the only country in Europe and the
only permanent member of the UN Security Council to recruit 16
year olds into its Armed Forces and is one of fewer than 20 countries
in the world which recruit from the age of 16 years. Those who
sign on when 16 or 17 years old must serve until they are 22.
3. Since the Armed Forces Act 2006, the recruitment
of minors has been criticised by the United Nations Committee
on the Rights of the Child, Parliament's own Joint Committee on
Human Rights, and children's charities amongst others. The Armed
Forces Bill is an opportunity to phase out the recruitment of
people under 18 in line with international standards, while introducing
greater protection for 16- and 17-year-old personnel in the meantime.
Concerns over terms of service
4. Employment in the Armed Forces is unique in
placing severe restrictions on rights and freedoms that are available
to the rest of the UK population. The Armed Forces are also the
only employers in the UK who legally require their employees to
commit themselves for several years, with the risk of a criminal
conviction if they try to leave sooner.
5. This situation is all the more worrying given
that many recruits are very young. There is also evidence that
many personnel are unclear about the length of their commitment
and their rights to leave and that the information they receive
can be misleading. Terms of service need to be less restrictive
and more transparent.
Upholding the right to conscientious objection
6. Life in the Armed Forces can have a significant
effect on the outlook and attitudes of those who undertake it.
Exposure to warfare can radically alter a person's values and
beliefs.
7. While the Armed Forces recognise the right
of serving personnel to be discharged if they develop a conscientious
objection, this right is not set out clearly in legislation, is
not mentioned in the terms of service and many, perhaps most,
forces personnel are unaware of it. The system for registering
a conscientious objection needs to be far easier to access and
the different types of conscientious objection need to be fully
recognised.
Political rights of serving personnel
8. A number of fundamental political freedoms
can not be enjoyed by those in the Armed Forces including the
right to join a trade union or a political organisation, to speak
to the media or in public without permission or to stand for elected
office. This is out of step with the US and much of Europe. Personnel
in the Armed Forces should not be exempt from rights granted to
all others under the Human Rights Act.
B. OUR CONCERNS
Recruiting minors
9. People under 18 are not legally recognised
as adults. They cannot vote or, in most cases, sign contracts.
They are barred from buying the most violent films and video games.
For minors to join the Armed Forces, they must have parental consent.
Yet, a contract which they signed as a minor will legally bind
them for up to six years.
10. Independent research has highlighted many
areas in which the recruitment of young people into the Armed
Forces is not characterised by transparency. Not only is recruitment
material often less than balanced about the risks, obligations
and dilemmas involved but after enlistment there is considerable
misunderstanding by those recruited as to their rights. The research
concludes that, as a result, many young people are not making
an "informed choice" to join the army.1
11. The UK is the only country in Europe which
routinely recruits minors into the Armed Forces. Worldwide, 134
countries have prohibited the practice. 37 countries recruit from
the age of 17. The UK is one of only 20 countries in the world
to recruit 16-year-olds. These countries include no other member
of NATO and no other permanent member of the UN Security Council.
But they do include several regimes with little respect for human
rights, including Iran, Zimbabwe and North Korea.2
Restrictive and unequal minimum length of service
12. Those recruited under 18 must serve up to
two years more than those who join as adults as they are committed
for four years from their 18th birthday to remaining in the forces
until turning 22. On turning 18, those already serving are not
given the opportunity to reconsider their commitment as adults.
13. In 1999 the army increased its minimum length
of service from three to four years, or up to six years for under
18s. If they wish to leave they then have to give a year's notice
(in the army or navy) or 18 months (in the air force). Recruits
may also be required to serve for longer than the usual period
if they undertake education or training other than their initial
training.
14. On leaving full time service personnel are
then transferred into the reserves which usually lasts for six
years further extending the commitment someone must make even
if they wish to leave.
Limited discharge as of right
15. Recruits have a discharge as of right (DAOR)
at certain points in their early days in the forces. This allows
them to leave by giving fourteen days' notice. For those aged
over 18 in the army the DAOR is after 28 days' service, but before
three months' service. For those under 18 in the army and all
those in the Navy and air force, the DAOR period is after 28 days'
service but before six months' service:3
16. After the period of six months is over, an
"unhappy junior" in the Armed Forces may be discharged
at the discretion of their commanding officer. However, this is
not a legal right and thus is not equivalent to DAOR.
17. For most recruits, their entitlement to DAOR
elapses during the period of training and preparation and before
they have had any experience of the frontline.
Calls for change to be made
18. Since the Armed Forces Act 2006, two significant
authorities on children's rights have called on the UK to reconsider
its policy of recruiting under 18s into the Armed Forces. In 2008,
the UN Committee on the Rights of the Child asked that the UK
"reconsider its active policy of recruitment of children
into the Armed Forces and ensure that it does not occur in a manner
which specifically targets ethnic minorities and children of low-income
families". It also recommends that the UK Government review
the limited discharge rights for child soldiers and "that
parents are included from the outset and during the entire process
of recruitment and enlistment".4 In 2009, the
Joint Human Rights Committee called on the UK Government to raise
the minimum age to 18. In their report on Children's Rights, they
recommend that the "UK adopt a plan of action for implementing
the Optional Protocol, including these recommendations, fully
in the UK, together with a clear timetable for doing so".5
19. These calls echo the recommendations made
in 2005 by the Defence Select Committee, which recommended that
the Ministry of Defence look into raising the minimum recruitment
age, and previous Armed Forces Bill committees which addressed
the issue of the minimum age of recruitment.6 Both
the 1991 and 1996 Armed Forces Bill Committee reports sought answers
to questions relating to the recruitment of under 18s and their
terms and conditions, particularly difference in the length of
service and discharge as of right, and made recommendations requesting
proposals for change.
20. As far as we are aware, the MoD have not
carried out a feasibility study on phasing out the recruitment
of under 18s, despite the requests noted above.
Confusion over terms of service for recruits
21. There is evidence that many personnel, and
their parents, are unclear about the minimum commitment and rights
to discharge. The SSAFA and At Ease helplines report that the
most common questions raised by callers relate to their length
of service, with frequent confusion about the conditions.7
The researcher David Gee found in 2007 that a number of parents
of 16- and 17-year-old personnel believed that they would be able
to choose whether to continue when they reached 18. This is not
the case.
22. Anecdotal evidence suggests that recruitment
officers have told young recruits and their families that if the
recruit is unhappy they will be allowed to leave. Although there
is a provision for "unhappy minors" to request discharge
from their commanding officer, there is no guarantee that this
will be granted and further evidence from those requesting advice
from At Ease is that discharge requests are often refused, although
statistics on refusals are not kept.
23. The Notice Paper, which recruits sign on
joining the forces, sets out their terms and conditions in language
that is often unclear and technical. In 2008 the wording of the
army's Notice Paper was improved but changes are still needed
to make it reasonably clear. Research by the MoD has found that
fifty per cent of people joining the army at non-officer level
have a reading age at or below that of an average 11-year-old,8
meaning many will find it particularly difficult to understand
the Notice Paper.
24. In 2008, the Ministry of Defence (MoD) made
a mistake with the papers which new recruits signed, allowing
those under 18 committed to a minimum of four years instead of
committing until their 22nd birthday. The MoD rectified their
mistake a few months later and later recruits had to sign up to
up to six years' service once more. This error means that a number
of personnel will soon be leaving below the age of 22, while their
colleagues who signed up just before or just after them will have
to wait for up to two years longer.
Confusion over terms of service in government
25. There is also confusion at Government level.
In January 2011, Defence Minister Andrew Robathan, told Parliament
that "service personnel under 18 years who have completed
28 days of service have the right to discharge at any time before
their 18th birthday provided they give the required 14 days' notice".9
This is not the case. It contradicts the Armed Forces regulations,
which state that the right to discharge elapses after six months'
service.
26. A very similar erroneous statement was made
in the UK report to the UN Committee on the Rights of the Child
that, "service personnel under 18 years have the right to
discharge at any time before their eighteenth birthday provided
they give the required notice".10
27. These errors suggest that the complexity
of the situation is a serious cause of confusion all round. A
more just and clear system would be for young people to indeed
have a right to discharge until their 18th birthday.
Lack of awareness of the right to conscientious
objection
28. Although each member of the Armed Forces
has a right to conscientious objection, this right is not mentioned
in either primary or secondary legislation relating to the Armed
Forces and, of the three services, only the army sets out the
procedure for registering a conscientious objection in its Queen's
Regulations.11 Procedure for discharge due to conscientious
objection is different for each service and difficult to access.
The regulations governing conscientious objection in the Navy
and RAF have only become apparent by using Freedom of Information
requests.12 Finally, no reference is made to this right
in the Notice Paper which is signed on joining the forces.
29. It is very likely that most forces personnel
are unaware of their right to discharge if they develop a conscientious
objection. Discharges due to conscientious objection are rare,
with only six granted between 2001 and 201013 but there
is evidence that the small number of cases recorded by the MoD
does not reflect the true number of those who act on their ethical
objections. There is anecdotal evidence of personnel with ethical
problems being encouraged to suppress their feelings and carry
on. The forces helpline At Ease reports that at least some who
raise a conscientious objection have been discharged on other
grounds such as for "service no longer required" or
"unfit for further service".14
30. More worryingly, there is evidence to suggest
that serving personnel are going absent without leave on the basis
of ethical issues.15 In these cases the procedure for
registering a conscientious objection is not safeguarding the
rights of those in the Armed Forces and, through lack of awareness,
some could end up facing court martial and a criminal conviction.
31. In 2004, the High Court considered the appeal
of Mohisin Khan, an air force reservist who had gone absent without
leave rather than fight in Iraq in a war in which he did not believe.
He explained that he was unaware of his right to apply for discharge
due to conscientious objection. The court upheld his conviction,
but declared, "It is, however, true that the call-out materials
in this case, like the 1997 regulations, do not mention conscientious
objection expressly. In that respect, it would seem that the information
provided to the recalled reservist could be improved".16
Treatment during the process of requesting a discharge
on the grounds of conscientious objection
32. While an application for discharge is being
considered, the applicant remains a member of the forces and is
subject to military discipline. He/she can therefore be punished
for refusing to obey orders for reasons of conscience. This contradicts
a recommendation by the Council of Europe Committee of Ministers
that personnel applying for discharge due to conscientious objection
should be removed to non-combatant duty while the application
is considered.17
Concern over the dismissal of "political"
objections
33. In December 2010, The Advisory Committee
on Conscientious Objectors (ACCO) met for the first time since
1996 (which is in itself an indication of the difficulties inherent
within the system). They heard an application for discharge from
Michael Lyons, a medic in the Royal Navy who was due to be deployed
to Afghanistan in 2011.
34. Lyons had developed an ethical objection
to participating in the war in Afghanistan after having been told
at a medical briefing not to waste resources by treating civilians
and after hearing that the majority of casualties were civilians.
Subsequent research into the reasons for going to war and the
number of Afghan civilian casualties had led him to believe the
war was wrong. Lyons requested an appeal to be held by ACCO who
advised the Defence Secretary to reject Lyons' request to be discharged.18
In giving their decision, ACCO stated that they considered Lyons'
objection to be "political" rather than "moral".
35. It is not at all clear that objections can
easily be split into these categories. In the case of Michael
Lyons, why has an objection based on medical ethics and to the
killing of civilians case been dismissed as "political"
rather than as a matter of conscience? How does a deeply help
"political" conviction differ from one based on morals
or religion?
36. A study presented to the Council of Europe
as long ago as 1967 stated that "in principle all grounds
of conscience resulting in refusal to do military service are
respected [in the UK]". It noted that "In the UK objections
to military service in specific circumstances—so called
political objections—have been allowed regularly since 1941".19
This assertion appears never to have been disputed by any UK Government.
37. The study quotes a staff member of the Central
Board for Conscientious Objectors, that political objectors were
recognised as "the objection was so deeply held that it became
a matter of inner conviction as to right and wrong and not merely
an opinion".
38. ACCO's have clearly failed to apply the test
of "inner conviction as to right and wrong". This suggests
confusion on the part of the authorities about the legal situation
regarding conscientious objection.
Restriction of political rights
39. Members of the Armed Forces face considerable
restrictions on political freedoms that are taken for granted
by most of the population. They are not permitted to join a trade
union or a political organisation, to speak to the media or in
public without permission or to stand for elected office.
40. Members of the Armed Forces can be criminalised,
and even imprisoned, for relatively minor acts of personal expression.
The political restrictions imposed on UK personnel are more extreme
than those that govern the Armed Forces in the US and in many
EU member countries.
41. The Council of Europe Committee of Ministers
has recommended that members of the Armed Forces should have freedom
of expression and freedom of peaceful assembly and association
with others (complying with Articles 10 and 11 of the European
Convention on Human Rights respectively) and the right to stand
for election to political office.20
Dissatisfaction in the Armed Forces
42. An inability to leave the forces legally
before several years have elapsed almost certainly contributes
to the number of personnel going absent without leave (AWOL).
In the last 10 years, between 2,000 and 3,000 serving personnel
have gone AWOL each year, mainly from the army.21 At
Ease also report that some who wish to leave resort to self harm,
taking drugs to get caught and suicide attempts.
43. The Armed Forces Continuous Attitude Survey
reports that, across the services, only 32% felt valued in the
service and only 51% agreed with the statement "I am reluctant
to leave".22 20% were dissatisfied or very dissatisfied
with their job—with 189,420 members of the Armed Forces
in all ranks, that is nearly 38,000 servicemen and women who say
they are not satisfied with their job.23 It is therefore
unsurprising that many try to find more immediate ways of leaving
than those legally available to them.
C. RECOMMENDATIONS
Addressing concerns about the recruitment of minors
In order to bring the UK into line with international
standards regarding under 18s in the Armed Forces, to provide
greater protection for the rights of young people, ForcesWatch
recommends:
- ¾ implementing
a phasing out of the recruitment of minors into the Armed Forces;
- ¾ in
the meantime, minors should be given Discharge As Of Right at
any point until they turn 18;
- ¾ until
recruitment of minors is phased out completely, those who enlist
under 18 should be given the opportunity to reconsider their commitment
to the Armed Forces on turning 18; and
- ¾ the
minimum length of service should be the same for all personnel
regardless of the age they joined.
Improving terms of service for all personnel
In order for people who find they are dissatisfied
with life in the services to leave within a reasonable timeframe,
ForcesWatch recommends:
- ¾ an
overall reduction in the minimum length of service;
- ¾ a
reduction to the required notice period to 6 months in all three
branches of the forces; and
- ¾ bring
the period for discharge as of right for adults serving in the
army in line with over 18s in the Navy and RAF.
In order to allow recruits and their families to
make an informed choice about enlistment:
- ¾ the
terms of service should be simplified so every recruit is clear
about the commitment involved; and
- ¾ the
length of service should be unified for all three services to
help avoid confusion.
Allowing Armed Forces personnel to benefit from human
rights legislation:
- ¾ A
commitment in line with the Council of Europe recommendations
to improve freedom of expression and association for members of
the forces.
Upholding the right to conscientious objection
ForcesWatch recommends that:
- ¾ the
right to conscientious objection, and the basic procedures for
applying for discharge, should be unified across the three forces
and set down clearly in primary legislation (the Armed Forces
Bill);
- ¾ the
Notice Paper should state clearly that there is a right to discharge
due to conscientious objection;
- ¾ information
on conscientious objection should be freely available to all members
of the Armed Forces. It should be mentioned in appropriate literature;
- ¾ ethical
concerns should be formally treated as conscientious objection,
and recorded as such, whether or not the term "conscientious
objection" is used by the person concerned;
- ¾ people
registering conscientious objection should be suspended from duty
while the application is considered; and
- ¾ objections,
where seen to be based on political reasons, should be viewed
as a matter of inner conviction as to right or wrong, rather than
merely as an opinion.
14 February 2011
NOTES
1. See David Gee, Informed Choice: Armed Forces
Recruitment Practice in the UK, 2007
http://www.informedchoice.org.uk
2. Information supplied by the Coalition to Stop
the Use of Child Soldiers—http://www.child-soldiers.org/regions/country?id=225
3. Terms of Service Regulations: http://www.legislation.gov.uk/
4. UN Committee on the Rights of the Child, Concluding
Observations on the Initial Report of the United Kingdom of Great
Britain and Northern Ireland under the Optional Protocol on the
Involvement of Children in Armed Conflict (UN Doc: CRC/C/OPAC/GBR/CO/1)
2008, para.13.
5. Joint Committee on Human Rights report: Children's
Rights, 2009
6. House of Commons Defence Committee report:
Duty of Care, 2005
7. See David Gee, Informed Choice: Armed Forces
Recruitment Practice in the UK, 2007
http://www.informedchoice.org.uk
8. Analysis of socio-economic and educational
background of non-officer recruits, submitted as written evidence
to House of Commons Defence Committee Duty of Care, 2004-05, Volume
II, Ev255
9. Hansard, 10 January 2011
http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110110/tex
10. Consideration of reports submitted by States
Parities under article 8, paragraph 1, of the Optional Protocol
to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict: UK. 2007
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.OPAC.GBR.1.pdf
11. The Armed Forces Act 2006 has no mention
of conscientious objection. Terms of Service Regulations for the
Royal Navy, Royal Marines, Army and Royal Air Forces, (Statutory
Instruments) do not mention conscientious objection. The Queen's
Regulations for the Royal Navy has no mention of conscientious
objection; details can only be found in administrative guidelines.
The Queen's Regulations for the Army sets out the procedure for
conscientious objection in full. The Queen's Regulations for the
RAF references an administrative leaflet about conscientious objection
but mentions no further detail.
12. See http://wri-irg.org/news/2007/uk2007-unreport-en.htm
13. This information was supplied by the Ministry
of Defence under the Freedom of Information Act—http://www.mod.uk/DefenceInternet/FreedomOfInformation/ConscientiousObjectors20012010.htm
14. See David Gee, Informed Choice: Armed Forces
Recruitment Practice in the UK, 2007
http://www.informedchoice.org.uk
15. At least 1,000 UK soldiers desert, BBC News
online, 28 May 2006, http://news.bbc.co.uk/1/hi/uk/5024104.stm
16. For details of the case see
http://www.bailii.org/ew/cases/EWHC/Admin/2004/2230.html
17. Recommendation CM/Rec(2010)4 of the Committee
of Ministers to member states on human rights of members of the
Armed Forces, February 2010 https://wcd.coe.int/wcd/ViewDoc.jsp?id=1590149&Site=CM.
18. Navy medic loses appeal over objections to
Afghan duty, Daily Telegraph, 17 December 2010
(http://www.telegraph.co.uk/news/newstopics/politics/defence/8209595/Navy-medic-loses-appeal-over-objections-to-Afghan-duty.html)
and other reports.
19. Study on the Legal Position of Conscientious
Objectors in the Member States of the Council of Europe, presented
by the Max Planck Institute for Comparative Public Law and International
Law, Heidelberg, to the Consultative Assembly of the Council Europe,
23 January 1967 (Doc 2170, Appendix)
20. Recommendation CM/Rec(2010)4 of the Committee
of Ministers to member states on human rights of members of the
Armed Forces, February 2010
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1590149&Site=CM.
21. Ministry of Defence AWOL statistics including
Prosecution and Sentences for Desertion 2000-10
http://www.mod.uk/DefenceInternet/FreedomOfInformation/DisclosureLog/AwolStats20002010IncludingProsecutionAndSentencesForDesertion.htm
22. Armed Forces Continuous Attitude Survey 2009
http://www.mod.uk/DefenceInternet/FreedomOfInformation/PublicationScheme/SearchPublicationScheme/ResultsForArmedForcesContinuousAttitudeSurveyafcas.htm
23. UK Armed Forces—Quarterly Manning Report,
1 July 2010, Defence
Analytical Services and Advice http://www.dasa.mod.uk.
Figures for "dissatisfied" and "very dissatisfied"
are aggregated by the MoD.
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