2 Growing legal challenges—the
problem
The origins of the legal difficulties
facing the MoD and the Armed Forces
19. The MoD faces unprecedented challenges
in the application of the law to the conduct of military operations.
These challenges have, in part, arisen because of the conflict
between International Humanitarian Law (IHL) and Human Rights
Law (HRL); the nature of recent conflicts; and the increasing
practice of conducting military operations in coalition with other
states.In its memorandum, the MoD reported that recent legal developments
were of increasing concern to the Government.[14]
However, it said that some of the legal scrutiny had been constructive:
[..]it is undoubtedly true that
the actions of the armed forces have been subjected to unprecedented
levels of legal scrutiny in recent years, particularly as a result
of military operations in Northern Ireland, Iraq, and Afghanistan.Some
of this scrutiny has been necessary and beneficial, [...].[15]
20. The MoD reported that until recently
the legal position on deployments had been broadly understood
and enforced:
Until the past ten years the legal
protections and obligations applying to the Armed Forces when
deployed abroad on operations were thought to be well understood.
They derived from common law, statute law, service law, and from
international law, EU Law, the European Convention on Human Rights,
but, in particular, as to events occurring as part of operations,
the branch of international law that comprises International Humanitarian
Law, and the obligations created by the Geneva Conventions.[16]
CONFLICT BETWEEN INTERNATIONAL HUMANITARIAN
LAW AND HUMAN RIGHTS LAW
21. IHL was developed to regulate the
conduct of parties to an armed conflict. It is based on a number
of treaties, in particular the Geneva Conventions of 1949 and
their Additional Protocols and a series of other conventions and
protocols covering specific aspects of the law of armed conflict.
The International Committee of the Red Cross (ICRC) told us that
current IHL had withstood the test of time as a realistic body
of law that finds a balance between military necessity and humanity.[17]
Michael Meyer, head of international law at the British Red Cross,
explained the difference between IHL and human rights law:
IHL and international human rights
law, while generally complementary, are two distinct bodies of
law.[...] IHL seeks to establish a balance between the
war-fighting objectives of the adversaries and the requirements
of humanity. In contrast, human rights law seeks to protect persons
from abusive power by governments, the latter to be curbed through
the assertion of individual rights. Consequently, whereas IHL
aims to protect, so far as possible, certain categories of persons
affected by armed conflict, and to limit (but not to eliminate)
the methods and means of warring parties, human rights law sets
out inherent entitlements belonging to all individuals.[18]
22. Professor Garraway, University of
Essex and formerly of the Army Legal Services, identified the
problem of the growing overlap between IHL and HRL and said that
a series of judgments by the International Court of Justice and
the European Court of Human Rights had highlighted that the relationship
between the two bodies of international law was not straightforward.[19]
He further said:
As 'war' and 'peace' increasingly
morph into a spectrum of violence where, like a rainbow, it is
difficult to identify the boundaries between the various levels
of violence, there has been a battle for legal supremacy between
those from the international humanitarian law end who wish to
see the definition of 'armed conflict' extended down to as low
a level of violence as possible so as to extend the protections
given by 'Geneva law', dealing with the protection of victims
of war, as widely as possible, and those from the human rights
perspective who insist that human rights is the foundational law,
the lexgeneralis, and that international humanitarian law,
as the lexspecialis, must be secondary.With each of these
bodies of law claiming priority, what happens when they disagree?
[20]
23. Others have been concerned about
the use of the law in conflict situations. In February 2013, the
Supreme Court considered three cases arising from the deaths and
serious injury of servicemen serving in Iraq (Smith and others
vthe Ministry of Defence, Ellis v the MoD and Allbutt and others
v the MoD—hereafter referred to as the Smith case).[21]In
June 2013, the Supreme Court ruled that British servicemen deployed
overseas could fall within UK jurisdiction for the purposes of
the European Convention on Human Rights (ECHR) and that a separate
negligence claim should not be struck out on the ground of combat
immunity or on the ground that it would not be fair, just or reasonable
to extend the MoD's duty of care to those cases. The effect of
the Court's judgment is that all three sets of claims may proceed
to trial. These cases are considered further in paragraphs 81
to 86 in Part 3 of the Report below.Lord Mance in a minority opinion
on these cases said that the majority judgment of the Court was:
[...] likely to lead to the judicialisation
of war, in sharp contrast with Starke J's dictum in ShawSavill(1940)
66CLR 344 that "war cannot be controlled or conducted by
judicial tribunals".[...] there is no precedent for claims
to impose civil liability for damages on states whose armed forces
are killed or injured in armed combat as a result of alleged failures
of decision-making either in the course, or in procuring equipment
or providing training for, such combat. All the claims made in
these appeals fall in my view within one or other of these areas
where common law should not tread.[22]
24. Martin Hemming said that, had the
above statement been made by a Minister or a senior military commander,
it would have been characterised as alarmist but, as it came from
a Justice of the Supreme Court, consideration should be given
to the necessary steps that might ameliorate the operational consequences
of the judicialisation of war.[23]
NATURE OF CONFLICTS
25. The UK Armed Forces have been involved
in a range of operations overseas, from combat to non-combat military
operations including intense armed conflict at one end of the
spectrum through peace enforcement, peace support, peacekeeping,
humanitarian and post-conflict stabilisation operations at the
other end. Operations often move from one type of mission to another
because of the changing nature of the demands. The great majority
of armed conflicts have not been international wars between well
organised industrial states.[24]
Many recent conflicts such as Iraq and Afghanistan are defined
as non-international armed conflicts as they take place in one
nation. The range of conflicts raises the question of which body
of law is applicable to each situation. Professor Roberts said:
Many of these conflicts are non-international
in character, so it is not self-evident that all the provisions
of the laws of war are applicable to them. Outside forces, includingthose
of the UK, may be involved in such conflicts in a variety of roles—as
part of a UN or a regional peacekeeping force, as support for
the government of the country, or to stop attacks on civilians.
The number of actual roles is huge, and each one raises separate
questions about what law is applicable and how it is to be applied
in practice.[25]
It is generally recognised that the
IHL is an evolving body of law which needs to respond to the changing
nature of conflict.The 31st International Conference
of the Red Cross and Red Crescent in 2011 requested that the ICRC
focus on two priority areas to strengthen IHL: improving compliance
with the Law; and the protection of persons detained in non-international
armed conflict.[26] We
discuss legal protections for people detained in non-international
armed conflict further in paragraphs 72 to 75.
WORKING IN COALITION
26. It is unlikely that the UK will
conduct future operations alone; it is more likely to do so in
coalition with other states or NATO. General Parker said that
"in the timeframe directly affected by the 2015 Strategic
Defence and Security Review, the priority will be to consider
how to contribute to complex, multinational, multi-agency security
operations".[27]Operating
in coalition complicates the application of any legal framework.
Participants at our roundtable discussion said that multi-national
and national decision-makers often have different legal perspectives
and indeed legal systems. There are also multiple chains of command
which can lead to different interpretations of the same law.These
differences are difficult to reconcile in the short term or sometimes
at all.[28]
27. An additional complication applies
to UK Armed Forces personnel embedded in the command chain of
another state's armed forces. Martin Hemming said that such personnel
were still covered by UK law:
[...]They remain subject to English
criminal law and UK military justice under the Armed Forces Act
2006. And the UK's state responsibility under international law
for the actions of members of its Armed Forces in such circumstances
remains.[29]
28. Detention has been a particularly
problematic area relating to the harmonisation of the particular
practices of coalition partners. In Afghanistan, there were differing
views amongst the coalition as to the nature of the hostilities.
These differences made it difficult to come up with a coherent
common policy on detention, and on the transfer of detainees,
to be applied to all states involved in operations in Afghanistan.[30]
Professor Roberts pointed to the problems in Afghanistan with
handing over detainees to different jurisdictions with different
standards regarding detainee treatment. He further said:
A central preoccupation of the laws
of war (as also of human rights law) has always been to develop
agreed standards regarding the treatment of individuals in conditions
of detention: it is remarkable that there has been some confusion
on this issue in recent years.[31]
29. 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.
Why the MoD needs to address the
challenges
IMPACT ON THE OPERATION OF THE ARMED
FORCES
On individual members of the Armed Forces
30. Armed Forces personnel need to be
confident that their day-to-day decisions in operational conditions
are lawful and that they are not vulnerable to personal legal
challenge.Dr Samuel told us that there is no personal civil liability
for individual battlefield commanders: they may only have personal
criminal liability under international humanitarian and criminal
law, for example, for ordering or allowing the commission of war
crimes.[32]
31. Martin Hemming also pointed out
that the European Convention of Human Rights (ECHR) had little
impact on the personal civil liability of personnel:
[...]The standards of conduct mandated
by the criminal law are not affected by the application or non-application
of the ECHR. If they comply with the criminal and disciplinary
law that applies to them at all times, Service personnel can have
high confidence in the legal security of their personal positions.
They cannot be held personally liable in proceedings based on
the HRA [Human Rights Act]. In so far as the HRA created new legal
remedies, they concern the liability of the UK Government (not
individuals) for alleged breaches by UK public authorities of
the UK's international law obligations under the ECHR.This important
point is not always made clear.No claim based on the HRA has ever
been brought against any individual member of HM Forces because
it is not legally possible to do so.[33]
32. However, Martin Hemming stressed
the importance for Service personnel of clarity about their legal
position, and was concerned that since 2000 the situation had
become less clear:
Service personnel need and deserve
to have a high degree of confidence that their day-to-day decisions
in operational conditions are lawful, and that their own personal
position is legally secure. If, after proper training, they feel
unable to take such decisions without taking legal advice, then
they may justifiably feel that something is wrong with the law.
Since about 2000, legal proceedings involving the MOD—including
inquests, civil litigation founded on common law claims as well
as the Human Rights Act 1998, and the developing jurisprudence
of the European Court of Human Rights on the extraterritorial
application of the European Convention on Human Rights—are
widely perceived as having muddied rather than clarified the legal
waters, and to have raised uncertainty about the true legal position
in a number of important areas. [34]
He also argued misconceptions can take
root and acquire the status of established truth:
And it is what individuals actually
believe, whether or not it is well founded, that informs the way
they act and feel, and influences their willingness to assume
responsibility and risk.[35]
33. Air Commodore Boothby reported that
"there can be no doubt that law has been propelled into consciousness
of military commanders in a way unthinkable two or three decades
ago and that military lawyers deploy with commanders to advise
in the application of the detailed rules".[36]
34. Professor Roberts said that the
concerns of Armed Forces personnel on operations about the rules
under which they operate should be taken very seriously. He believed
that the criticisms related more to the impact of human rights
law rather than IHL:
When those on operations express
concerns, grumbles or complaints (whether at the time or afterwards)
about the rules under which they have to operate, these concerns
should be taken very seriously and there needs to be a response.
Of course it is always necessary to be clear about the nature
of the issue at stake. Sometimes the target of criticisms turns
out to be, not an international legal requirement, but particular
policy decisions taken in London. In those cases where criticisms
are clearly about the law's effect on the operations of armed
forces, my impression is that these criticisms relate more to
the impact of human rights law rather than to the law of armed
conflict. Although these two bodies of law overlap in a number
of ways, it is important that they be kept conceptually distinct.
The conclusions about where we stand in relation to them, and
what action may need to be taken, may be different in each case.[37]
35. The process of the law, and the
way the MoD has supported Armed Forces personnel, has added to
concerns about the legal framework itself. At the roundtable,
it was pointed out:
The succession of cases taken to
the European Court of Human Rights in relation to military justice
procedures provided something of a turning point in perceptions.
In order to avoid any allegation of 'command influence', the military
hierarchy were advised to distance themselves from criminal cases,
leaving individuals accused of crimes carried out in operational
conditions feeling unsupported by their military 'family'. So
too, whilst it was recognised that any judicial scrutiny of a
military operation or incident would involve senior officers testifying
in court, this has now evolved to the point where junior officers,
non-commissioned officers and soldiers are increasingly finding
themselves giving evidence, often in complex cases.[38]
36. Service personnel have, indeed,
reacted to the increased level of scrutiny, in particular the
difficulty of appearing as witnesses in inquiries or coroners'
inquests on Service personnel. General Parker said that he had
detected a growing sense that the 'system' was not able to provide
as much support to its people who were under investigation for
fear of prejudicing a fair hearing. He further said:
Critically this can leave the individual
and his/her family feeling isolated and abandoned by the institutional
family we have schooled them to rely on.
I have also observed that the growth
of non-criminal hearings, such as boards of inquiry, coroner's
hearings and civil cases by overseas plaintiff, have caused actual
and perceived reputational damage to those who have to appear.[39]
Martin Hemming reported that the operational
judgments of individuals taken in testing circumstances and in
good faith, might well be publicly criticised.
37. 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 effectivenessand, 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.
On theArmed Forces and the MoD
38. We also received evidence on the
impact that the application of human rights law and other legal
developments could have on military operations more generally.
The MoD told us:
During the last decade the increasing
importance of international human rights law, arguably to the
detriment of IHL, and the expansive interpretations being given
to provisions of the ECHR by both our domestic courts and by Strasbourg
has not, in the Government's view, been conducive to clarity.[40]
The Government is clearly concerned
that the results of some of the recent cases where combat immunity
has been challenged could have "serious debilitating effects
on the decision-making of commanders on the ground which could
in the long term seriously impair this country's military effectiveness".[41]
39. Professor Roberts stated that some
aspects of the application of human rights law to the operations
of the UK Armed Forces had been positive but there were concerns
regarding its application in situations of armed conflicts and
occupations that needed to be addressed. In particular, the impact
of a European Court of Human Rights case (AlJedda)
in July 2011 on the right to detain for imperative security reasons
posed serious problems.[42]He
also said that "greater clarity about the respective roles
of the law of armed conflict and human rights law is urgently
needed, and in London every bit as much as in Strasbourg".[43]
40. There are differing views on the
impact of the application of HRL to military operations. Professor
Haines, Professor of Public International Law at the University
of Greenwich and formerly in the Royal Navy, said that he did
not believe that HRL undermined the effectiveness of military
operations by the imposition of excessive restraints on the use
of lethal force. HRL does not contain an absolute right to life
but asserts the right of all not to be deprived of their life
in an arbitrary fashion.[44]
41. General Shaw, however, believed
that "human rights legislation is fundamentally incompatible
with the soldier's unlimited contract on which soldiering depends".
He added that the current incoherence is so stark as to question
military viability altogether.[45]
42. As set out in paragraphs 52 to 58
and 81 to 86 below, there are a number of current cases going
through the British courts which may lead to further developments
in the law and more lengthy, expensive and time consuming cases.
Martin Hemming told us:
Time will tell if the Supreme Court
majority's strong direction [Smith case]to courts concerning
"the very wide measure of discretion which must be accorded
to those who were responsible on the ground for the planning and
conduct of the operations during which these soldiers lost their
lives, and also to the way issues as to procurement too should
be approached" is heeded, both in those particular cases,
and any that follow, as they surely will. However, the point at
which that very wide measure of discretion will come to be accorded
is likely only to be reached at the end of a litigation process
that is lengthy, expensive, and time consuming, and of a trial
in the course of which the operational judgments of individuals
taken in testing circumstances, and in good faith, will have been
forensically deconstructed, and very possibly publicly criticized.[46]
43. 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.
The time is right
44. There has been a build up of cases
challenging military operations over the last few years mainly
involving HRL. Many of these cases have arisen out of the conflicts
in Iraq and Afghanistan. Professor Roberts believed that it was
absolutely right for our Committee to embark on a consideration
of what changes might be necessary to the current legal framework:
In certain recent or ongoing armed
conflicts in which the UK has been involved, including those in
Afghanistan and Iraq, there has been considerable legal fall-out
in the form of official inquiries, cases involving both UK and
international courts, and coroner's court procedures. In these
circumstances it is right that the Defence Committee has embarked
on this consideration of 'what changes may be necessary to the
current MoD legal framework and processes to accommodate the particular
position of UK Armed Forces at war and when deployed in conflict
situations or in peacekeeping and the changing tactical forms
of future conflicts.' Armed conflicts have often had the effect
of providing a test of the adequacy or otherwise of existing legal
norms as well as the adequacy or otherwise of the performance
of armed forces in implementing them.Recent conflicts are no exception.
This Inquiry is a means of evaluating such tests.[47]
45. In its memorandum, the MoD said
that the Government was increasingly concerned about the recent
legal developments and the unprecedented levels of legal scrutiny
in recent years. It also viewed our inquiry as a timely contribution
to the debate.[48] General
Shaw was of the view that the UK was sleepwalking into a situation
where soldiers were asked to conduct warlike activity under civilian
law.[49] Interest in
the subject is high as illustrated by the House of Lords debate
(the Armed Forces and the Legal Challenge) on 7 November
2013.
46. 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.
14 Ev 1 Back
15
Ev 2 Back
16
Ev 1 Back
17
Ev 14 Back
18
Ev 56 Back
19
Ev 10 Back
20
Ibid Back
21
[2013] UKSC 41 Back
22
[2013] UKSC 41 paragraph 150 Back
23
Ev 96 Back
24
Ev 59 Back
25
Ibid Back
26
Ev 15 Back
27
Ev 30 Back
28
Ev 102 Back
29
Ev 96 Back
30
Ev 101 Back
31
Ev 60 Back
32
Ev 83 Back
33
Ev 95 Back
34
Ev 93 Back
35
Ev 93-94 Back
36
Ev 6 Back
37
Ev 59 Back
38
Ev 101 Back
39
Ev 31 Back
40
Ev1 Back
41
Ev 3 Back
42
Ev 58; the Al Jeddacase is discussed in more detail at
paragraphs 59 to 63 Back
43
Ev 61 Back
44
Ev 90 Back
45
Ev 93 Back
46
Ev 96-97 Back
47
Ev 59 Back
48
Ev 1-3 Back
49
Ev 93 Back
|
