1 Introduction
1. We announced our inquiry into UK
Armed Forces Personnel and the Legal Framework for Future Operations
on 9 July 2013. This inquiry is one of four strands that we are
pursuing as part of our overarching inquiry Towards the next
Defence and Security Review. We published our preliminary
report on this overarching inquiry in January[1],
and expect to publish our final report in this series in the summer.
Our intention, in this series of reports, is to help shape and
inform the next Strategic Defence and Security Review which is
expected to be conducted in 2015.
2. The strands have been entirely paper-based
inquiries in that no formal evidence was taken on each. In another
change to our usual practice, the Committee has appointed Committee
Members to act as rapporteurs on each of the strands who have
presented their findings to the Committee. The rapporteurs on
this strand were Dai Havard and Julian Brazier.
3. In recent years, legal judgments
by courts in the UK and elsewhere have raised a number of legal,
ethical and practical questions for the Armed Forces and their
conduct of operations. Some of these questions may be more matters
of perception than actual threats to the conduct of operations
themselves but there is nevertheless a feeling of disquiet amongst
military personnel and informed commentators about the extent
and scale of judicial involvement in military matters. We believe
the Armed Forces, the Ministry of Defence (MoD) and the Government
need to address these challenges strategically rather than simply
reacting to events and to individual court cases.
4. This inquiry has focused on the legal
aspects of the conduct of operations—jus in bello. It
deals with International Humanitarian Law (IHL), (also known as
the Law of Armed Conflict (LOAC)), and international human rights
law (HRL). We sought written evidence from a wide range of experts,
including legal, human rights and military professionals on:
· The legal protections and
obligations applying to UK Armed Forces personnel (both regular
and reservist) when deployed in the UK or abroad in UK-only or
coalition operations;
· The effects of the developing
concepts and doctrines of 'lawfare' and 'universal jurisdiction';
· The judicial development
of Duty of Care concepts and of domestic UK law and claims of
negligence, and on UK operational decision-making processes and
arrangements for recording decisions and events by operational
commanders.
5. We set out to consider what changes
are necessary to the current legal framework and processes to
accommodate the particular position of UK Armed Forces on all
forms of future operational deployments and the changing nature
of conflict.
Evidence
6. We are grateful to all those who
submitted written evidence to this inquiry. We have not been able
to reflect the full complexity of the arguments and discussion
contained in the written evidence in this overview, however we
commend these written submissions. We have taken no formal oral
evidence but have had private briefings from the International
Committee for the Red Cross (ICRC) based on its written evidence
as its mandate is to promote the laws that protect victims of
war.[2]We also had a briefing
from Air Commodore Doctor Boothby, former deputy director of legal
services (RAF) on the law relating to cyber warfare and on the
targeting of weapons. In addition, we held a roundtable discussion
with key experts which proved invaluable. The Royal United Services
Institute submitted a summary of the discussion at the roundtable
as written evidence, although none of the views expressed in the
summary should be attributed to individual participants. We would
like to put on record our gratitude for the participation of the
following people at that discussion, some of whom have also submitted
written evidence:
· Professor Michael Clarke,
Royal United Services Institute
· Major General Tim Cross
· Professor Charles Garraway,
University of Essex
· Professor Francoise Hampson,
University of Essex
· Martin Hemming, former head
of legal services in the MoD
· General Sir Nick Parker
· Professor Sir Adam Roberts,
Balliol College Oxford
· Lt Colonel Tom Tugendhat,
Territorial Army
· Air Chief Marshal Glen Torpy
We would like to express our thanks
to our Specialist Advisers, in particular to Major General Tim
Cross and Professor Michael Clarke, for their contribution to
the inquiry and to the staff of the Committee.[3]
7. This inquiry does not address situations
in which members of the Armed Forces or the MoD behave improperly,
break the criminal law or the Geneva Conventions and Additional
Protocols. Such behaviour is unacceptable and, in the rare instances
where such incidents occur, they should be fully investigated
and individuals appropriately prosecuted.
8. The Report is written for the public
and Parliament. It is an expression of the Committee's views based
on the evidence we have received and is written in layman's language.
The law in this field is complex and uncertain and is the study
of a great many academics and lawyers who inevitably have different
views and perspectives. We have illustrated our concerns and those
of others with high profile legal cases but have not reported
on all relevant cases. We have not attempted to determine legal
solutions to the issues and challenges we have found but have
sought to identify areas where the MoD and the Government must
investigate remedies as part of the development of the next Strategic
Defence and Security Review and of its implementation.
Background
9. The legal framework that has a bearing
on military operations is of long standing, and is multi-faceted.
It includes:
· The law relating to the legitimacy
of resort to force (called the jus ad bellum);
· UK law and practice (statute
law, military manuals, the decisions of courts and commissions
of inquiry);
· International Humanitarian
Law, also known as the Law of Armed Conflict, the laws of war—jus
in bello; and
· International human rights
law.[4]
This report does not deal with the legitimacy
of decisions to go to war or to intervene militarily in a situation.
The legal aspects of intervention are being dealt with in our
parallel inquiry on Intervention: Why, When and How?. The
inquiry has also not considered the Military Justice System, including
the courts martial system, or the Coroners court system for investigating
military deaths of UK Armed Forces personnel except in consideration
of the way in which they have impacted on the perceptions and
behaviour of Armed Forces personnel.
10. 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.
Importance of the legal framework
to military operations
11. The legal framework is fundamental
to the conduct of military operations and the UK has made a vital
contribution to the development of that framework. The framework
protects civilians drawn into conflicts and gives certain protections
and responsibilities to states and combatants, including the UK
Armed Forces. In particular,IHL "has withstood the test of
time as a realistic body of law that finds a balance between military
necessity and humanity".[5]
Recent concerns around the application of human rights law to
military operations should not bring into question the validity
of the LOAC. Professor Adam Roberts, Emeritus Professor of International
Law at Balliol College, Oxford, explained it thus:
The fact that there is some criticism
of the way in which certain legal rules and procedures have impinged
on the UK armed forces in this century should not overshadow the
enduring importance of the legal framework within which the activities
of armed forces take place. [...] While it is nothing new that
there should be controversies about it, the resulting legal framework
has had (and continues to have) at least three significant benefits
for this country and its armed forces:
· It provides assurances
for the armed forces (most obviously in confirming their right
to prisoner-of-war status if captured).
· It is one key basis for
recognizing the legitimacy of particular campaigns and activities.
· It has particular importance
in facilitating close working relations with allies in multinational
operations of various kinds.[6]
12. Successive UK Governments have been
involved in the development of a wide range of international agreements
and institutions that have a bearing on war and peacekeeping.[7]Dr
Katya Samuel, barrister and lecturer at University of Reading
and formerly of the Royal Navy, said:
The UK's heritage is at the forefront
of the development of international human rights standards, and
should not be forgotten. Specifically, in the aftermath of World
War II, the UK participated in the drafting of the European Convention
on Human Rights (ECHR)—a document considered necessary for
civilised nations to live in peace through abiding by minimum
human rights standards.[8]
13. 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.
'Lawfare'
14. In recent years, it has been said
that the law has been used or misused by adversariesto undermine
the operation of the Armed Forces or as a substitute for traditional
military means to achieve a military objective—a concept
known as 'lawfare'.[9]Whilst
not convinced of the validity of the concept of lawfare, we were
concerned to see whether there was any evidence that the law had
been deliberately misused in this way.
15. Professor Roberts pointed out that
the use of the law as a propaganda tool was a widespread phenomenon
and a very old practice exploiting the intentions of responsible
states not to break IHL.He further said:
In recent decades the capacity of
the US and a few allies to wage high-technology warfare has led
to a pattern of response in those less developed societies that
are the subject of their military attentions. In wars in Kosovo,
Iraq, Afghanistan and elsewhere, the USA's adversaries, faced
with US capacity to hit certain types of military target almost
at will and to spare civilian areas and objects, have resorted
to actions that violate the obligation to keep military assets
and targets out of civilian areas, and especially violate the
obligation to keep them away from protected sites such as hospitals
and mosques. Any subsequent US attack on such a site may then
be portrayed as a war crime. In some cases, too, the USA's adversaries
may have simply fabricated US attacks on such sites in order to
discredit the US. Such lawfare has increased in importance because
of the role of media in contemporary conflicts. Since by nature
it involves legal violations, mendacity, and publicity, there
needs to be a robust public response tailored to the circumstances
of each case.[10]
16. Martin Hemming, former head of legal
services at the MoD, doubted that the lawfare tag served any useful
purpose and said that it unhelpfully impugned the motives of those
who legally challenged the Government on military issues.[11]
He also said:
I think it was also inevitable that
the common law boundaries of combat immunity in civil claims would
have been tested in the wake of UK involvement in military operations
over the last 15 years.[12]
In its memorandum, the MoD said:
The Government has bitter critics
among the community of lawyers most engaged in bringing cases
against the Ministry of Defence, but it sees no real benefit in
speculating publicly on their motives for doing so. No doubt reasons
of personal prestige, economic advantage and political commitment
will have different weightings among different practitioners at
different times.[13]
17. 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.
1 Towards the next Defence and Security Review, Seventh
Report of the Committee, Session 2013-14, HC 197 Back
2
The ICRC website describes its mission as 'The ICRC, established
in 1863, works worldwide to promote humanitarian help for people
affected by conflict and armed violence and to promote the laws
that protect victims of war. An independent and neutral organisation,
it mandate stems from the Geneva Conventions of 1949. Based in
Geneva, Switzerland, it employs some 12,000 people in 80 countries;
it is financed mainly by voluntary donations from governments
and from national Red Cross and Red Crescent societies. Back
3
The declarations of relevant interests by our Specialist Advisers
are recorded in the Committee's Formal Minutes which are available
on the Committee's website. Back
4
Ev 58 Back
5
Ev 14 Back
6
Ev 59 Back
7
Ibid Back
8
Ev 79 Back
9
Ev 60 Back
10
Ev 60-61 Back
11
Ev 96 Back
12
Ibid Back
13
Ev 2 Back
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