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Conclusions
1. The Armed Forces and the Ministry of Defence (MoD) have faced an unprecedented number of legal cases over the past ten years. This is perhaps not surprising given the nature of the conflicts in which the Armed Forces have been engaged and the growing use of challenges under human rights law in UK courts. As we have made clear, we make no criticism of the families of Armed Forces personnel who have brought cases against the MoD. Families understandably want to know the circumstances surrounding the death or injury of their family member. Much of our evidence has pointed to the adverse impact of the judicial consideration, process and development of the law underpinning these claims on the conduct of military operations. We note that these developments are driven by judicial decisions and we recommend that the Government, not just the MoD, reappraise these matters and address them in a strategic way and, where necessary, introduce legislation in Parliament to provide the necessary legal clarity.(Paragraph 127)
2. International Humanitarian Law (IHL), also called the Law of Armed Conflict (LOAC), was developed to regulate the conduct of parties to an armed conflict. We agree with the International Committee of the Red Cross that IHL has withstood the test of time as a realistic body of law that finds a balance between military necessity and humanity. We also agree with ICRC's view that IHL needs to evolve in respect of non-international armed conflicts, in particular in the protection of detainees. The majority of armed conflicts involving UK Forces have not been wars between international states but what IHL and LOAC defines as non-international armed conflicts such as the operations in Iraq and Afghanistan. The Government should work to ensure that IHL is the body of law regulating the conduct of armed conflicts with primacy over human rights law. It should also continue to participate freely in the development of IHL to protect civilians and to regulate armed conflict of whatever type, in particular when working in coalition. (Paragraph 128)
3. Most of the growing number of cases brought against the MoD have resulted from claims of breaches of the European Convention on Human Rights, many of which have proved to be unfounded. The tension and overlap between the two bodies of law—IHL/LOAC and human rights law (HRL)—have resulted in a lack of certainty and clarity, together with a growing number of cases against the MoD. There are two aspects of the use of human rights law that most concern us. First, on the extraterritorial application of the European Convention on Human Rights to allow claims in the UK courts from foreign nationals. Detainees should be treated with humanity and respect and where this is found not to be the case, the individuals and the MoD should be prosecuted. However, the number of cases and 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.(Paragraph 129)
4. Secondly, we are concerned about the failure of the previously well understood and 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. It also challenges the doctrine of the best application of proportionate response with the unintended consequence that it might lead to far bloodier engagements on the battlefield as commanders may take fewer risks with their own troops and make more use of close air support or remotely actioned weapons, resulting in greater violence against the opposition with potentially greater numbers of civilian casualties. More legal certainty might result in less destructive conflicts.(Paragraph 130)
5. We have not attempted to impute motives for claims against the MoD or tried to describe these developments in terms of the concept of a doctrine of 'lawfare'. Nor have we attempted to provide solutions to this growing challenge. It is for the Government to consider the best way forward in respect of the problems of clashes between IHL and HRL which it agrees exist. However, we have identified some of the options to provide more clarity and certainty with regard to the law which the Government should consider. Unless Government policy as determined by Parliament, 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 requires a strategic plan to address these issues.(Paragraph 131)
6. We recognise that individual members of the Armed Forces have no personal liability in the cases described above as they are brought against the MoD. However, many personnel have been called to give evidence in court cases, Coroner's inquests and inquiries. The reputational risk to Armed Forces personnel and the fear that they and their legitimate actions are exposed to extensive and retrospective legal scrutiny has led many to question their position serving in the UK Armed Forces. Recently retired senior commanders have told us that this undermines the willingness of personnel to accept responsibility and to take necessary risks with the consequent impact on operational effectiveness. Armed Forces personnel need to have the right training and advice to allow them to conduct armed conflicts legally and ethically. They should also have the confidence to know that they have the support of the Armed Forces when facing legal action whether as a witness or defendant rather than being isolated as they are currently.(Paragraph 132)
7. The next Strategic 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. Future military operations will involve Armed Forces personnel, civilian staff from departments such as International Development, the Home Office and the Stabilisation Unit and increasingly the staff of contractors. Much of this examination has to be done by the whole of Government, including the Ministry of Justice. We urge the Government, in concert with the MoD, to begin work now in order to re-establish the clarity of the doctrine, the legal framework including the legal protection of Armed Forces personnel and public legitimacy. We believe that this work needs to be done in support of the next Strategic Defence and Security Review and should recognise the move to contingency operations which are by their nature open ended.(Paragraph 133)
Introduction
8. We recognise that the UK Government has had a long and honourable involvement in the establishment and continued application of International Humanitarian Law and human rights law. The Government should continue to participate actively in the development of such law to protect civilians and to regulate the conduct of Armed Conflict. (Paragraph 13)
9. We have found no evidence that adversaries of the UK are deliberately misusing UK and international law by bringing cases under human rights law to undermine military operations. However, we are concerned about the forced use of civilians as shields by insurgents strategically exploiting the restraint shown by UK and other Forces mindful of the need for humanitarian respect for civilians and of their legal obligations.(Paragraph 17)
Growing legal challenges—the problem
10. The increasing number of legal actions being brought against the MoD about the conduct of military operations by the Armed Forces raises a range of questions about the legal context of operations. The UK Government needs to take account of the tension between International Humanitarian Law and human rights law with reference to the nature of conflicts. The Government also needs to consider the implications of what is expected to be the continuing practice of conducting operations in coalition with international partners when determining the legal framework of operations.(Paragraph 29)
11. There is a concern amongst Armed Forces personnel that they and their legitimate actions are frequently exposed to extensive legal scrutiny in coroners' courts, public inquiries and cases brought under human rights law. The MoD should identify the extent of and concern about legal developments amongst Armed Forces personnel at all levels to identify the impact on their operational effectiveness and, in particular, the willingness of personnel to accept responsibility and take necessary risks. We recommend that, in order to identify the extent of the concern, the MoD ask for the Army Personnel Research Establishment to include a section on the subject in its next survey. When the MoD has identified the concerns, it should take steps to provide Armed Forces personnel with appropriate assurances and adequate training to illustrate where personnel are not personally liable. It should also offer its support when Armed Forces personnel come before the courts to testify in coroners and other courts where the MoD is being challenged. The MoD should also inform Armed Forces personnel of what it is doing to tackle the difficult legal challenges it faces.(Paragraph 37)
12. There are clearly a number of legal challenges facing the MoD and the Armed Forces as a result of recent legal cases and developments. Views as to the extent of these challenges differ but no one doubts that they exist. These challenges should be addressed head on and in a strategic manner rather than on a case by case basis. (Paragraph 43)
13. In the light of the many recent cases challenging aspects of military operations, and as part of the lessons learned from operations in Iraq and Afghanistan, we believe that the time is right for the Government to reassess the current legal framework for military operations and to develop its response to the many legal challenges in a more strategic way. Recognising the changing nature of conflicts, legality, ethics and the importance of the media, the resulting questions should be considered as part of the next Strategic Defence and Security Review.(Paragraph 46)
Human Rights Law and International Humanitarian Law
14. The number of legal challenges facing the MoD in respect of human rights law is large, uncertain and growing. We recognise that there is nothing the MoD can do to prevent these existing cases but we recommend it should fight each of them vigorously. We will cover possible future arrangements including legislation and procedural changes later in this Report. The MoD should inform us of the size and costs of the legal challenges it is facing in regard to the challenges from people in Iraq and Afghanistan on human rights grounds. It should also set out the arrangements it has introduced for carrying out the required inquiries akin to Coroners' inquests on those people who died in Iraq as a result of the actions of the UK Armed Forces.(Paragraph 65)
15. The MoD should identify the lessons from the legal issues arising in Iraq and Afghanistan and ensure that in all future operational deployments, the Armed Forces are clear about the legal position of the deployment and that all measures have been taken to ensure that they will not be open to legal challenge.(Paragraph 66)
16. Baha Mousa's treatment and subsequent death in detention was an horrific example of a few Armed Forces personnel behaving inhumanely and illegally. It is obviously right in such cases that individuals and the Armed Forces should feel the weight of the law. In its response, the MoD should detail how it is addressing the recommendations from the Baha Mousa Inquiry and the progress made to date in the implementation of these recommendations.(Paragraph 67)
17. We await with interest the results of the Government's work on the reform of legal aid. The MoD should inform us how any such reform will impact on the legal challenges it faces. The Government should also tell us of its intentions to limit the use of judicial review in respect of military operations. (Paragraph 70)
18. The UK Government should participate in appropriate international work to strengthen International Humanitarian Law and, in particular, should be more actively involved in the ICRC consultations on detention in non-international armed conflict and on strengthening compliance with IHL.(Paragraph 74)
19. We are concerned about the implications of the Supreme Court judgment in June 2013 in the Smith case for the principle of combat immunity. We recognise that the judgment appeared to limit the scope of the cases to the 'middle ground' between the policy and the conduct of the armed conflicts. However, we believe that this may still open up decisions, taken in situations of intense armed conflict where commanders are forced to make the best judgments they can, to examination by the Courts.(Paragraph 86)
Possible ways forward
20. We are not in a position to determine which of these solutions, if any, would help the Government resolve the sense that the law is adversely impacting on operational effectiveness. However, we are strongly of the opinion that the Government should think of these issues strategically and start to determine long-term solutions now to enable the Armed Forces to conduct armed conflict certain in the knowledge of which laws apply and how their military judgments are likely to be challenged in the future. We are also aware that some of the areas to be pursued may have reputational risks for the UK, but that this should not allow the Government to duck the difficult issues. (Paragraph 96)
21. The Government should bear in mind that whichever solutions it adopts for the Armed Forces and military operations, there are likely to be implications for FCO, DFID, Stabilisation Unit and Home Office activities in post-conflict stabilisation and peacekeeping operations. The approach taken by the Government and the MoD must be appropriate and applicable to them where relevant.(Paragraph 97)
New developments
22. Given the MoD's stated intention to develop a cyber warfare capability, we are pleased to note that the UK Government is talking with ICRC on the legal and humanitarian implications of cyber warfare. We noted in our recent Report on deterrencehat difficulty in identifying the perpetrator of a cyber attack brought into question the legality of a response to such an attack.The MoD should inform us of its work in determining the legal framework of possiblecyber operations and its plans to incorporate such work into training of personnel and the preparation of appropriate manuals. (Paragraph 101)
23. The MoD should prepare the legal framework for new forms of weapons or conflict at the start of their development. We welcome the MoD's assurance that no planned weapons system will be able to attack a target without the involvement of a human being. The MoD should think through the legal and moral consequences of new forms of conflict and developments in new weapons systems. This work should start immediately in parallel with work in progress to develop new capabilities in particular in the cyber field and in autonomous weapons. We seek assurance from the MoD that such consideration has already begun in respect of autonomous weapons and indeed for highly evolved automated weapons.(Paragraph 108)
Practical questions for the Armed Forces
24. We support the ICRC view that the UK should assist other states by providing technical advice and capacity building in International Humanitarian Law. This work should form part of the planned capacity building by the Armed Forces. The UK Government should participate in appropriate international work to strengthen International Humanitarian Law and, in particular, should continue to be actively involved in the ICRC to strengthen IHL. We also support the view that the UK should take proactive steps to reconfirm the primacy, continued value and distinct nature of IHL.(Paragraph 112)
25. The MoD and the Armed Forces should re-examine their legal training for all ranks in the Armed Forces to ensure that it is as up to date as possible and is consistent with the latest cases. It should also clarify and detail where Armed Forces personnel have personal liability and where they do not.(Paragraph 117)
26. An understanding of the underpinning doctrine of the Law of Armed Conflict is crucial to the Armed Forces. The consequent manuals are important tools in ensuring that the Armed Forces act within the law. They provide clarity and a measure of certainty. The MoD should update the UK Manual on the Law of Armed Conflict and ensure that it is fully maintained in future.(Paragraph 120)
27. The MoD should review its arrangements for providing legal advice and guidance to the Armed Forces to ensure it has the best available knowledge, expertise and experience—both legal and military. It should ensure that the civilian and military lawyers work together to best effect; if necessary, it should change the arrangements and structures for the provision of legal advice to the individual Services and to the MoD to ensure this happens.(Paragraph 124)
28. The media is an increasingly important player in armed conflicts. It can and has been exploited by the UK's adversaries and will increasingly be so in the future. The MoD should ensure that it has an effective media strategy in place to deal with accusations of war crimes and violations of International Humanitarian Law.(Paragraph 126)
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