4 Possible ways forward
87. There are many legal cases still
to come to trial, including those allowed by the Supreme Court
judgment on the Smith case but also following the completion
of cases from the investigations currently being conducted by
IHAT (see paragraphs 54 to 55 above) and possibly the Al Sweady
Inquiry. Until the results of some of these cases are known, the
ramifications will remain unclear. The law itself is uncertain
and complex and in many ways unclear. Many of those who have submitted
written evidence to the inquiry have suggested solutions. Other
suggestions were made in the recent report "the Fog of Law:
An introduction to the legal erosion of British fighting power"
by Lt Colonel Tom Tugendhat and Lt Colonel (US Army) Laura Croft.[97]
These options, which are not mutually exclusive and which should
be considered in parallel with the strengthening of IHL, are outlined
below.
NEW LEGISLATION
88. Brigadier Paphiti, formerly of the
Army Legal Service, said that legislating to define combat immunity
was a viable option but that as long as the UK was party to the
ECHR, all legislation and decisions of the UK courts would be
open to scrutiny by the European Court with its recognised poor
understanding of the military context. The legislation would however
provide a template for the uniform application of principles by
UK courts.[98]
89. The Rt Hon Jack Straw MP said that
the Government might need to revisit the Human Rights Act. He
said that it was never envisaged that the Act would operate in
such a way as to directly affect the activities of UK forces in
theatre abroad.[99] He
further said:
Had there been any concerns that
the Act would over time lead to a situation where military decisions
in theatre were to be subject to it, there would have been a very
high level of opposition to its passage, on both sides and in
both Houses.[100]
He added:
However, I believe that the current
responsibilities imposed by the courts upon military commanders,
and other personnel in the field, go too far. It cannot be acceptable
for commanders to have as it were to look over their shoulders
in real time to lawyers when making both tactical and strategic
decisions in the field, to the extent that now appears by the
current law to be required of them.[101]
90. In its memorandum, the MoD told
us that it was contemplating the introduction of new legislation:
The Ministry of Defence is therefore
giving some thought to the possibility of legislation to clarify
and bound the law on combat immunity. This could in principle
operate either by providing a statutory definition of combat immunity
or by setting out the considerations which a court would be expected
to take into account when hearing relevant cases. This is not
a step which would be embarked upon lightly, and certainly not
in the immediate future, but the Department considers it prudent
to make plans against the contingency that legal developments
could make it necessary for Parliament to make provision for this
important matter.[102]
91. In response to a Parliamentary question
on the infiltration of a human rights culture into the Armed Forces,
the Rt Hon Philip Hammond, Secretary of State for Defence said:
There are issues of encroachment
of judicial processes into the operations of the armed forces.
A number of cases currently before the courts, or pending, could
have a significant impact, and we are watching them closely. We
are clear that once we commit our armed forces to combat, they
must be able to carry out operations without fear of constant
review in the civil courts. If we find that the current cases
develop in a way that makes that difficult, we will come back
to the House with proposals to remedy the situation.[103]
CROWN PROCEEDINGS ACT
92. The Government could use the powers
set out in section 2 of the Crown Proceedings (Armed Forces) Act
1987 to restore section 10 of the Crown Proceedings Act 1947 for
warlike operations outside the UK, effectively recreating combat
immunity. The MoD told us that no revival order for section 10
had been made since 1987.[104]
However, Brigadier Paphiti said that this would have the effect
of removing the protection for UK troops from negligence by others
when not engaged in conflict:
For example, a soldier who arrives
in an operational theatre and is then subjected to physical training
in temperatures well outside what he has just experienced in his
home base and without any chance to acclimatize, who then dies
as a result. There is no combat element to connect the death with
any required immunity.Restoring Crownimmunity in such cases would
protect the incompetent.[105]
Dr Morgan, Corpus Christi College, University
of Cambridge said that if section 2 was used to restore combat
immunity, it should be accompanied by a Government commitment
to compensate combat injuries fully on a no-fault basis.[106]
DEROGATION
93. Brigadier Paphiti said that the
encroachment of the ECHR into the battlespace could not be halted
while European Court of Human Rights decisions had pre-eminence,
with arrest and detention operations subject to the Court's overarching
jurisdiction. He did identify a further way forward short of leaving
the Convention—that of a derogation under article 15 of
the Convention to exempt claims under article 2 (the right to
life) for deaths resulting from lawful acts of war, and article
5 (right to liberty) in respect of security operations. It would
confirm the supremacy of IHL during conflict.[107]
Dr Sari, lecturer in law, University of Exeter, also suggested
that derogation from the Convention would be available and might
allow the more liberal rules of the law of armed conflict. However,
he pointed out that the effect of such derogations might be limited
as the UK would have to prove the circumstances satisfied the
condition 'in times of war or other public emergency threatening
the life of the nation' and the UK would need to comply with all
other relevant international law.[108]
CLEARLY DEFINED UN RESOLUTIONS
94. In the Al Jedda case, the European
Court of Human Rights found that a United Nations Security Council
Resolution that authorises detention for security reasons is not
sufficient to override Article 5 ECHR obligations. Only an explicit
Security Council requirement to detain could do that.[109]
If the UK and the international community wished to place reliance
on an UN resolution to detain combatants, it would be necessary
for the United Nations to define clearly its missions, authorities
and, in particular, the right and requirement to detain combatants
as part of the relevant UN resolution. This may be attractive
but may be difficult to achieve given the difficulties of agreeing
UN resolutions.
OTHER OPTIONS
95. Some of the other measures which
would help bring further clarity or certainty suggested to us
were:
· Better statements by the
UK on its intent especially on detention;
· Seeking to replicate the
legal situation as it applied in Afghanistan rather than as it
applied in Iraq;
· Reacting to individual cases
and defending them to the best of the MoD's ability;
· Letting cases go to their
end point and adopting policy based on the results.
96. 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.
97. 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.
97 The Fog of Law: An introduction to the legal erosion
of British Fighting Power, http://www.policyexchange.org.uk/publications/category/item/the-fog-of-law-an-introduction-to-the-legal-erosion-of-british-fighting-power Back
98
Ev 28-29 Back
99
Ev 13 Back
100
Ibid Back
101
Ibid Back
102
Ev 4 Back
103
Hansard Defence Oral Answers col 554, 17 March 2014 Back
104
Ev 3 Back
105
Ev 28 Back
106
Ev 31 Back
107
Ev 29 Back
108
Ev 51, Ev 56 Back
109
Ev 98 Back
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