UK Armed Forces Personnel and the Legal Framework for Future Operations

Written evidence from Brigadier (Rtd) Anthony Paphiti

 

IMPACT OF LAW ON THE SERVICEMAN  

 

There are 3 key operational areas where the impact of the law on the Serviceman [1] is of concern:

1. Law as it relates to actual combat, where decisions are taken "on the battlefield" using available resources, and

2. The law as it relates to advance preparations for combat, equipment supply etc, where knowledge and foreseeability are relevant.

3. The Encroachment of Human Rights law into the battlespace.

Legal authorities show the "combat immunity" exemption applies in the first case, whereas there is a good case for denying the exemption and supporting the rights of servicemen in relation to the second. The reasons are set out below.

PART 1: LAW AS IT RELATES TO MILITARY OPERATIONS  

 

Combat Immunity   - The principle of Combat Immunity has been confirmed in domestic law by the cases of Mulcahy –v- MoD [1996], Multiple Claimants v Ministry of Defence [2003] and, more recently, Smith and Others v the Ministry of Defence [2013] , UKSC 41 in that that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat.

In the case of Mulcahy –v- Ministry of Defence [1996], the court cited with approval the words of in Dixon J, in Shaw Savill & Albion Co Ltd v Commonwealth, [2]

"To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy." [My emphasis added].

At paragraph 62, Sir Ian Glidewell said,

"... it is in my judgment clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another. Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade.... If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces."

These views contrast with the situation where there is the ability to provide equipment and the financial resources to do so, with knowledge that deficiencies are causing death and injury to our servicemen, yet a conscious decision is taken not to provide that equipment, or there is unjustified dilatoriness in its procurement. This is discussed in Part 2.

In Multiple Claimants Owen, J held, at §2C:

"no duty of care arises "…in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations", a principle that has been variously described as the common law immunity or battle immunity; but which I propose to call the ‘combat immunity’, a term that describes the context in which it arises and is wider than the term battle immunity, a battle being ordinarily understood to be a prolonged fight between large organised armed forces."

However , in Smith, Lord Hope went further and considered that:

"It is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong". [3]

Lord Carnwarth, giving a dissenting judgment in Smith, pointed out, at para 157,

"We have not been referred to any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities."

While the court decided that combat immunity should be narrowly construed, it refused to interfere in policy decisions by government or the MoD (eg the decision to go to war).

Although the applicants in Smith are now able to institute proceedings for negligence, not all judges were confident of success. Significantly, though, Smith does not make commanders on the ground liable for decisions taken on the battlefield. The commander is thus still free to make his tactical decisions on the basis of his assessment of the task, his troops to task and available equipment and munitions. He fights with what he has to achieve mission success.

Military Operations   - Military Operations cover the spectrum from combat to non-combat operations. In combat operations International Humanitarian Law (IHL) applies. In between there are two other broad situations: "peace enforcement" and "peace building" the concepts of which developed from the 1992 vision of the then UN Secretary General. [4]

"Peace Enforcement", is defined by the UN as "the application of a range of coercive measures, including the use of military force" to restore international peace and security in situations where the Security Council has decided to act in the face of a threat to the peace, breach of the peace or act of aggression. [5] It recognises the hostile environment in which the force, under UN authority, is attempting to establish stability and peace, while not being obviously at war, but with the authority to carry out war-like operations. Again, IHL will apply to all combat operations.

Peace building is the transitional phase which

"aims to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development. It is a complex, long-term process of creating the necessary conditions for sustainable peace. Peacebuilding measures address core issues that effect the functioning of society and the State, and seek to enhance the capacity of the State to effectively and legitimately carry out its core functions." [6]

These are not finely demarcated lines. They merge into each other as the mission transitions to a more stable and less threatening state. At the end of a period of combat operations, always regarded as the exclusive province of IHL as the lex specialis (the governing law), a force may turn into an occupying force. In occupation the Geneva Conventions and Protocols are applicable still, and the Hague Rules 1907. However, now the ECHR encroaches as, inherent in the concept of occupation is the fact of territorial control, which means that the jurisdiction of the Convention extends to that occupied territory. The two regimes do not sit easily together as IHL recognises the role of combat forces in an area where indigenous institutions may have broken down, while the ECHR functions more easily in a peace-time environment with fully operating institutions of law and order. [7]

This relationship between IHL and the ECHR is further complicated by those circumstances when, although still very much a military operation, the effort to re-establish sovereign government institutions requires detailed and constructive cooperation between the military force and that government. This happened in Iraq, as illustrated by the case of Al Saadoon. [8] This relationship is seriously under threat as a result of that decision.

After the Iraq war the allies were ultimately engaged in a peace building/nation building transition, under UNSCR 1483, with the Coalition Provisional Authority ("the CPA") exercising most of the powers of government during the occupation. This process involved re-establishing the sovereign state of Iraq, repairing and rebuilding infrastructure and institutions and enabling the nascent government to begin functioning efficiently after the vacuum created by war. In this process, our forces gradually moved from being in occupation to working with the Iraq Host Nation and being in situ with its consent, reinforced in a UN Security Council mandate. [9] Similarly, in Afghanistan our forces were there under a UN mandate [10] to assist the Afghan government.

During peacebuilding and peace keeping, a key consideration is the applicable sovereignty of the Host Nation and the fact that the military force acts in support of their government. All territory is subject to the sovereign authority of their government. So, when the ECtHR seeks to impose obligations on the UK force that are in direct conflict with the law of the Host Nation and the terms of our agreements/SOFAs, or the UN mandate, the UN mission is actually imperilled. It is wholly incompatible with the aim of the UN, in attempting to rebuild a nation emerging from war, to effectively deny the very sovereignty of that non-Council of Europe (CoE) nation by passing down decisions which essentially override agreements made with a Sending State (a nation which sends troops).

Whither Combat Immunity  

The case of Smith did not remove the defence of combat immunity, but there remains an issue whether the defence more widely covers preparation for or conduct of active operations against the enemy, or is narrowly constrained to death/injuries sustained in the course of active hostilities. [2] The Supreme Court made no finding on the issues of negligence in the procurement process. The cases are justiciable on this point, [3] although there was little optimism about the outcome. What the court did say is that combat immunity must be construed narrowly.

For as long as the ECtHR continues to stretch the reach of the ECHR into more areas, rubbing up against IHL in combat operations, our forces will continue to be hampered in the carrying out of the mission objective. This is the case even where we act under a UN mandate.

PART 2 - LAW AS IT RELATES TO PREPARATIONS, EQUIPMENT ETC, WHERE KNOWLEDGE AND FORESEEABILITY ARE RELEVANT  

 

A case for liability   - The thought-provoking Policy Exchange paper, "The Fog of Law", [13] expressed the view that "recent legislation and judicial findings have extended the domestic law of negligence to the battle zone". [14] Smith essentially held that the issues of negligence were justiciable, while expressing reservations about their eventual success. However, there is indeed a need to ensure clarity as to the province of the law of negligence in these circumstances. It is suggested a distinction should be made between (a) conduct in the course of military operations where combat immunity is applicable and (b) conduct in the preparation and lead up to operations where the law of negligence is of import in relation to any failures to address obvious and grave shortcomings, of which the chain of command and government are aware. Decisions made in the safety and calm of an office in Whitehall, with time to consider the facts and views of experts, assess risk and make the decision, should not be covered by any legal exemption. Yet the court – even the majority – in Smith accepted that

‘"high level" decisions about procurement or conduct of operations are not open to review in the courts’ [15]

This excuses the egregious failures of government to act when in possession of the salient facts. That situation contrasts starkly with a decision taken on the battlefield whether operationally, for example, it is necessary to wear body armour or helmets. That decision might turn out to be wrong, but if it was an operational decision it should fall within combat immunity and should not give rise to any liability against the commander on the ground. An exception might arise where the decision in question was deferred so as not to give an enemy advance warning of preparations for war. That may have a legitimate strategic purpose, provided it is rectified as soon as possible once war starts. [16] However, the shortcomings in "Snatch Landrover" were being regularly relayed to the MoD [17] and Government. Personnel were dying or suffering horrible life-changing injuries through inadequate protection. Government was slow to react. [18] These vehicles were not replaced until the end of 2010 by Foxhound (Ocelot), followed by Huskys. Should an exemption from tortuous liability exist in such a case?

The RAF Nimrod Aircraft fleet, according to the Hadden-Cave Inquiry, was known to have a serious safety problem. That report "criticised the Ministry of Defence for sacrificing safety to cut costs." [19] One senior officer was criticised for failing to give "adequate priority, care and personal attention to the preparation of the NSC [Nimrod Safety Case]." The inquiry cited "incompetence, complacency and cynicism" as being at the root of the deaths. The Government was accused of putting costs before lives. More noteworthy was the conclusion that

"Airworthiness in the MOD became a casualty of the process of cuts, change, dilution and distraction commenced by the 1998 Strategic Defence Review." [20]

Hadden-Cave pointed out that the key problems were in fact known about for some time prior to deployment of the aircraft. This is a crucial point because, it is not the deployment of such defective aircraft at an urgent time of operational requirement which is the issue – most servicemen recognise that we go to war with what we have - it is the failure to ensure, in the years preceding a deployment that the equipment is safe and meets operational requirements. 14 highly experienced crew with two of the Nimrod Force’s most capable and knowledgeable aviators, lost their lives in that incident.

More recently, in Smith, reference was made in at by Lord Hope, at paragraph 68, to a number of cases and to the positive duties placed upon the state, among which are two general obligations:

"The first is a systemic duty, to put in place a legislative and administrative framework which will make for the effective prevention of the risk to their health and well-being or ... effective deterrence against threats to the right to life. Depending on the facts, this duty could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy. The second, which is also directly in point in this case, is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable."

PART 3 - ENCROACHMENT OF THE ECHR  

 

Some recent decisions of the ECtHR, such as Al Jedda, Issa, Al Skeini and Al Saadoon and Mufdhi serve to illustrate how the ability of a military force to operate effectively in combat operations has been seriously hampered. In particular, arrest and detention operations are now more problematic. The need to arrest and detain enemy combatants and insurgents in a conflict zone should not be expected to comply with peace-time standards such as those exercised by a civilian police force in Tonbridge Wells on a Saturday night. These demands are simply unrealistic and inhibit the need to gather intelligence without delay. They also inhibit our ability to operate with allies outside the CoE by being able to pass over detainees to other nations who may have a security interest in them. In Iraq, the Multi-National Force (MNF) had a UN mandate to take all necessary measures to contribute to the maintenance of security and stability in Iraq, reinforced by the decree of the UN-appointed Coalition Provisional Authority (CPA) which authorised criminal and security detentions. [21]

If unrealistic peace-time standards are placed on the force in relation to arrest and detention, the outcome may also be the least beneficial to the putative detainee – a failure to arrest and detain him might condemn him to a much worse fate. Such an outcome would not only be unsatisfactory for him, but also for the force; we would have lost an opportunity to obtain intelligence that might assist our mission and save lives. This prolongs a conflict rather than assists its resolution. It also means more people might be killed or injured.

A prisoner is not without rights and protections in such circumstances. He has protected status under IHL and, even in a non-international armed conflict, enjoys the basic protections of common article 3. However, it is quite normal for a force Op Plan to stipulate that, whether strictly applicable or not, the standards of the GCs and Protocols are to be adhered to, whether or not each participating state is signatory to those treaties. Under IHL it is permissible for prisoners to be passed to an allied nation which is also party to the GCs. However, the arresting power remains responsible for the wellbeing of those prisoners and must retrieve them in the event of concerns about their treatment. This is set out in article 12 of the 3rd Convention. Similar provisions are contained in the 4th GC, concerning detention and internment of protected persons who are civilians. Due to ECHR encroachment, if the receiving nation is non-CoE, the handover process may be impeded by challenge to UK courts and the ECtHR. [22]

Handing prisoners over to the authorities of the nation in whose territory the conflict occurs may not be possible as their facilities may be non-existent or inadequate (see Al Saadoon and Mufdhi), [23] or they may be treated to lower standards than acceptable. In any event detention on operations is not primarily for the purpose of gathering admissible evidence for prosecution, but for intelligence gathering and removing from circulation people who present a threat or danger to the force, without any intention to prosecute. There is a paradigm shift from peace-time law enforcement. Giving ECHR protection to such dangerous individuals and bringing them to the UK imports the risk they pose, turning the UK into a safe haven for identified as a danger to our security.

In Bankovic, [24] the Grand Chamber of the ECtHR was clear in its reference to the geographical reach of the ECHR. [25] The decision in Issa [26] extended the reach of article 1 of the Convention to northern Iraq, where a number of civilians had been allegedly killed by Turkish forces who had entered Iraq briefly. They withdrew after a day. The court laid out 6 principles (emphasis added):

(1) Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention.

(2) The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.

(3) The words "within their jurisdiction" in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Bankovic and Others), but also that jurisdiction is presumed to be exercised normally throughout the State's territory.

(4) A State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration.

(5) It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory.

(6) Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully - in the latter State.

It is a worrying decision because the exercise of "effective control" in the Issa case was just for a few hours. This approach by the court effectively extended jurisdiction to anywhere troops are operating. It stretched Bankovic. [27]

The House of Lords decision in Al Skeini recognised that anyone in our physical custody eg as a prisoner in a detention facility, was "within the jurisdiction". This covered the detention of Baha Mousa and his fellow detainees. [28] However, in relation to the other 5 claimants, killed in the course of combat activities, they were outside the scope of the Convention. The court preferred the Bankovic view of jurisdiction, that it was only in exceptional circumstances that the Convention applied extraterritorially. [29] The ECtHR disagreed with this finding and decided that even civilians were within the jurisdiction of the ECHR, as the UK was in occupation. It held that

"Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government. Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State" [para. 135].

The logical conclusion of this finding is that every civilian killed in operational exchanges of fire with an enemy or insurgents, must have his or her death investigated to article 2 standards by an independent police/investigative force. [30] It is wholly unrealistic. However, as seen below, the UK military Shooting Incident Review Policy (SIR) does require a form of investigation through the Serious Incident Report (SINCREP).

Unfortunately, the eagerness of the ECtHR to extend the applicability of the ECHR to combat, almost to the point that the Geneva Conventions are no longer truly the lex specialis, is to fail to recognise the mechanisms which the Geneva Conventions themselves have for dealing with the sort of egregious behaviour witnessed in the Al Skeini case, concerning the treatment of detainees and the death of Baha Mousa. The ECHR was in fact completely irrelevant to the prosecution of the accused in the Baha Musa case. That prosecution was based upon the fact that soldiers were alleged to have committed offences contrary to English law. Cpl Payne and two others were charged with a War Crime under section 51(1) of the International Criminal Court Act (inhuman treatment). The fact that the House of Lords, in Al Skeini, found that the ECHR applied, exceptionally, [31] to those within the custody of the British Military – and therefore included the detainees – had no bearing upon the decision to prosecute the soldiers responsible before a court martial. As for financial compensation, Lord Rodger, stated, at p.23,

"It is obvious, but nevertheless worth mentioning, that, depending on the facts, the appellants may have various other rights, such as a right to damages in tort, under English law."

These rights apply, absent any invocation of the ECHR. [32] However, it is not being suggested that acting decisively should mean acting unlawfully, or breaching the provisions of IHL. Soldiers are taught that in combat they fall under the Law of Armed Conflict and can kill an enemy. Yet it seems now this is not so clear. Moreover, how does one define the battlefield in asymmetric ops? How does one define an enemy? What legal regime governs the capture and holding of prisoners? Can we still hand over prisoners to our allies, whose detention techniques are a little more robust than ours and whose legal system may carry the death penalty and not be subject to the ECHR, or must CoE nations have their own detention facilities, with the huge cost and manpower implications that carries, at a time when our government has pared back its army? What impact does that have on intelligence gathering and putting the force intelligence jigsaw together, if detention and interrogation is carried out by different nations? These are difficult issues for lawyers to grapple with, let alone commanders and soldiers on the front-line. What is often given short shrift is the fact that detention processes are usually subject to legal oversight. In fact, the Geneva Convention lays down a requirement in conflict, but the deploying force will normally make this part of its Op Plan, whatever the type of operation.

The judgements of the ECHR do not make easy reading for those conducting military operations. The realities and challenges faced by the force do not appear to be well understood by the tribunals that hear human rights claims brought by individuals. The ECtHR has arrogated to itself what appears to be a supremacy over even the UN Charter provisions. The law also appears contradictory. [33]

In the case of Behrami and Saramati, [34] it was accepted that art 103 of the UN Charter was authoritative [35]   and the ECHR had to give precedence to it. At the material times, UNSC Resolution 1244 of 10 June 1999 provided for the establishment of a security presence (KFOR) by "Member States and relevant international institutions," "under UN auspices," with "substantial NATO participation" but under "unified command and control." UNSC Resolution 1244 also decided on the deployment, under UN auspices, of an interim administration for Kosovo (UNMIK) and requested the Secretary General ("SG") to establish it and to appoint a Special Representative to control its implementation. The ECtHR decided that, in accordance with the view of the International Court of Justice, Article 103 means that the Charter obligations of UN members prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the UN Charter or was only a regional arrangement. The issuing of detention orders fell within the security mandate of KFOR. Importantly, it held that Chapter VII constituted the foundation for the delegation of UNSC security powers, while the UN Security Council retained ultimate authority and control so that operational command only was delegated by UNSC Resolution 1244. Most importantly, the ECtHR decided [36] that

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the European Court of Human Rights. To do so would be to interfere with the fulfilment of the UN's key mission in this field. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim. [Emphasis added].

Importantly, the Court identified that the "key question" [37] to determine whether the delegation by the UN was sufficiently limited to meet the requirements of the Charter, and for the acts of the delegate to be attributable to the United Nations, was whether "the [Security Council] retained ultimate authority and control so that operational command only was delegated". The Court had further identified factors which established that the UN had retained "ultimate authority and control" over KFOR, among which was the requirement that the Resolution put sufficiently defined limits on the delegation by fixing the mandate with adequate precision as it set out the objectives to be attained, the roles and responsibilities accorded as well as the means to be employed. The broad nature of certain provisions could not be eliminated altogether given the constituent nature of such an instrument whose role was to fix broad objectives and goals and not to describe or interfere with the detail of operational implementation and choices. Furthermore, the leadership of the military presence was required by the Resolution to report to the UNSC so as to allow the UNSC to exercise its overall authority and control.

In Al Jedda, [38] the applicant, an Iraqi granted asylum in the UK, was detained in Iraq by British forces operating under a UN mandate. He was interned for over 3 years. At that time, the Iraqi Interim Government was in power and the Multi-National Force, including British forces, remained in Iraq at the request of the Government and with the UN Security Council's authorisation. He challenged his detention as a violation of article 5 of the ECHR, but the House of Lords rejected that claim and, rightly it is suggested, held UNSC Resolution 1546 placed the UK under an obligation to intern individuals considered to threaten the security of Iraq and that, in accordance with Article 103 of the UN Charter, [39] that obligation to the UNSC had to take primacy over the UK's obligation under ECHR not to hold anyone in internment without charge. Al Jedda challenged the decision in the ECtHR. The Government relied on the Behrami decision, contending that the internment was attributable to the UN and not to the UK, and that the applicant was not, therefore, within UK jurisdiction under Article 1 of the Convention. Further and in the alternative they submitted that the internment was carried out pursuant to UNSCR 1546, which created an obligation on the United Kingdom to detain the applicant which, pursuant to Article 103 of the UN Charter, overrode obligations under the ECHR. In its decision, the ECtHR again pushed the boundaries of ECHR jurisdiction and unanimously rejected the House of Lords judgment, finding "ambiguity" in the UN resolution requiring that "the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations." [40] Yet in Beharami it had recognised the "broad nature of certain provisions" in the mandate. The regrettable effect of Al Jedda is to require that UN resolutions, which are usually loosely drafted to enable the greatest degree of flexibility [41] of operation, may have to be drafted with a contract lawyer’s precision of wording to ensure the requisite authorities will not be overruled by the ECtHR. This, in itself, may open up another avenue of challenge for keen-eyed human rights lawyers eager to argue over the wording of the mandated authorities.

The case of Al Saadoon and Mufdhi shows how the ECtHR continues to misunderstand operational imperatives and the realities of UN ops. The case concerned 2 men suspected of involvement in the murders of 2 British servicemen. They were held by the British military authorities, at the request of the Iraqi authorities, pending their trial by the Iraqi High Tribunal ("the IHT"). They were produced to the IHT whenever required, and that court exercised its jurisdiction over them. When the UN mandate was about to run out, so that UK forces would have to leave Iraq, the men argued unsuccessfully before the High Court that it would breach the ECHR to hand them over to the Iraqi authorities. They appealed to the Court of Appeal which roundly rejected their claims. That court held that they were not within the jurisdiction of the UK because article 1:

a. is an exceptional jurisdiction;

b. is to be ascertained in harmony with other applicable norms of international law;

c. reflects the regional nature of the Convention rights; and

d. reflects the indivisible nature of the Convention rights.

Importantly, the court was obliged to have regard to the UK's obligation, arising under international law, to transfer the appellants to the custody of the IHT in deciding whether to grant relief for the purpose of upholding Convention rights.

On appeal to the ECtHR it was decided they were within the UK’s jurisdiction. The court failed to truly comprehend the dilemma faced by the UK force: we had no legal right to retain the men, as the Iraqi authorities could at any time have exercised their sovereign right and removed them from our detention facility, a fortiori after the mandate had run out when the British force itself had no right to remain in Iraq. The fears expressed about the fate which would befall the men if tried before the IHT were later proved to be totally unfounded. Both men were acquitted by the IHT! The dissenting judge in the case, Judge Bratza, while not questioning the general principles laid down in the Court's case-law, was not persuaded that they had any direct application to the special circumstances of the case, where the two men were held by a contingent of a multinational force on foreign sovereign territory, whose mandate to remain on that territory had expired and who had no continuing power or authority to detain or remove from the territory nationals of the foreign sovereign State concerned.

Article 2 Investigations   - In Al Skeini the ECtHR found that the obligation to conduct an effective investigation exists in armed conflict, as a consequence of lawful or unlawful military action, when the state acts as an occupying power. [42] As to what constitutes an effective investigation into acts committed by agents of the State the ECtHR held, in Tahsin Acar v. Turkey [43]

1. The investigators must be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence;

2. The investigation must be capable of leading to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator(s) will risk falling foul of this standard;

3. A requirement of promptness and reasonable expedition is implicit and may generally be regarded as essential in maintaining public confidence in adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts;

4. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. In all cases, next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests

As the Open Society Justice Initiative rightly pointed out, [44]

‘The ECtHR has stated in a number of cases that the right to an effective remedy is denied when there is a failure to take certain specific steps in an investigation. Some of these key steps include:

(i) taking fingerprints;

(ii) performing a medical examination that fully examines the injuries on a victim’s body, and results in "a complete and accurate record of possible signs of ill-treatment and injury and an objective analysis of clinical findings";

(iii) taking initiative in investigating all the circumstances of the abuse ; and

(iv) taking reasonable steps available to "secure the evidence concerning the incident, including, inter alia , eyewitness testimony, forensic evidence ..."

In general, the responsible authorities must, "where appropriate, [carry out] a visit to the scene of the crime."

The ECtHR has also indicated that a medical examination must also provide "a complete and accurate record of injury and an objective analysis of clinical findings."’ [45]

These are exceptionally onerous requirements. The reality is that access to the scene of death may be extremely difficult and dangerous; there is a breakdown of law and order; many people carry weapons of varying lethality; there is an hostility (either expressed or not) to the foreign force; the deceased may have been buried quickly by family, in accordance with local custom or religion, making post mortem examination impossible; there may be a reluctance for witnesses to cooperate with the Service police. Imposing article 2 duties on the Service police for every death places huge demands on poorly resourced Service police units - deaths are normally investigated by the Special Investigation Branch, a highly trained but smaller component of the military police.

Notwithstanding article 2, the army does have a mandatory procedure for investigating deaths of civilians, which is in the form of a Serious Incident Report (SINCREP). As explained in Hansard, [46]

"The most recent issue of the UK SIR policy was on 4 January 2010 and it is regularly reviewed. The first report of all shooting incidents is the Serious Incident Report (SINCREP). This report is sent by the military unit involved to their unit operations room in the first instance. It will then be forwarded as appropriate up the Chain of Command. From the SINCREP, the Commanding Officer (CO) of the Battlegroup must make one of three decisions:

· If only positively identified enemy forces have been killed or injured and there is no suggestion of any breach of the Laws of International Armed Conflict (LOAC) or Rules of Engagement (ROE) then no further action will be necessary.

· If civilians may have been killed or injured although there is no indication that LOAC/ROE have been breached an SIR should be initiated. (My emphasis)

· If it appears there may have been a breach of the ROE or LOAC or a friendly fire incident or any other circumstances deemed appropriate then the incident is reported to the Service police.

If a SIR is required then it should be completed within 48 hours and should set out the detailed facts to enable the CO to conclude if any further action is required. The review is to be conducted by an officer of at least the rank of Captain, who was not involved in the incident. The review will involve the collation of all documents, ledgers and logs that deal with the incident, as well as reports from those present. At the conclusion of the SIR the CO will have three options, depending on its outcome: inform the Service police; recommend an investigation from within unit resources; or take no further action.

If a service police investigation or unit investigation is commenced this may or may not lead to disciplinary proceedings. Any investigation will clearly produce documentation and a report.

19.4 Investigations

A Service Police investigation will be conducted in the usual manner in accordance with the Police and Criminal Evidence Act (PACE), including the taking of statements and, in most cases, the interviewing of suspects after caution. This will produce a report which will be sent to the relevant authority. A unit investigation will be less formal than a Service Police one and will not be conducted in accordance with PACE. A unit investigation will report to the CO who will then decide if disciplinary action is appropriate."

However, in Smith, while examining combat immunity, Lord Hope considered the ambit of article 2 and held, at page 21:

"in my opinion a finding that in all circumstances deaths or injuries in combat that result from the conduct of operations by the armed forces are outside the scope of article 2 would not be sustainable. It would amount, in effect, to a derogation from the state’s substantive obligations under that article. Such a fundamental departure from the broad reach of the Convention should not be undertaken without clear guidance from Strasbourg as to whether, and in what circumstances, this would be appropriate."

CONCLUSIONS :  

 

The Supreme Court in Smith did not neutralise the concept of combat immunity. However, it did consider that it should be narrowly defined and that a distinction exists with pre-deployment procurement, which may be subject to the scrutiny of the courts. When a serviceman signs up, he recognises that implicit in the job description is the duty to train for and fight combat operations and, therefore, to risk his life in the furtherance of government foreign policy. What he expects in return is for government to do its utmost to minimise the risks he will face. As ECHR jurisdiction extends to even civilians in a non-CoE territory under our "effective control", there is a logic in arguing the same privilege for a soldier, not engaged in combat, who is a member of a force from a CoE State.

The extension of ECHR jurisdiction so that virtually all operations are subject to the ECtHR’s scrutiny, has a direct impact upon the ability to effectively conduct arrest and detention operations. The concept of "effective control" covers the situation of even a most transient military presence on the soil of another state.

OPTIONS: 

 

1. Legislation: Legislating to define "combat immunity" is a viable option but, for as long as we remain party to the ECHR, all legislation and decisions of our courts will be open to scrutiny by the ECtHR with its recognised poor understanding of the military context. Moreover, decisions taken in the heat of battle already fall within the definition. However, it is conceded that legislation will at least provide a template for the uniform application of principles by our courts, in each case. It is recommended that such a definition should recognise the distinction between:

a. Decisions made

i. when a nation goes to war, when there is little time for preparation and we deploy with what we have; and/or

ii. by commanders in the field, using their best judgment and resources available, either in preparation for a military engagement or during such an engagement; and

b. Decisions made in the procurement of equipment which

i. Put cost before safety; and/or

ii. Show a signal failure to match the product with the known or understood or intended requirement; and/or

iii. Ignore the reports of commanders regarding equipment requirements/shortcomings and/or defects; and/or

iv. Do not have a justifiable strategic objective

as a result of which our Servicemen suffer foreseeable death or injury.

Falling within b(iv) would be any strategic decision not to undertake procurement, to avoid alerting an enemy of our intentions. Although once combat commences, necessary procurement should proceed without delay.

A reckless decision by a commander to expose his troops to exceptional danger without proper military justification would remain an offence under the Armed Forces Act 2006 (eg an offence under section 2(2) of the Armed Forces Act 2006 of Misconduct on operations, which carries a maximum penalty of life imprisonment).

Legislation would not put a stop to the line of ECtHR decisions imposing ECHR obligations on our forces in operational circumstances or where we act under a UN mandate.

2. Restoring section 10 of the Crown Proceedings Act 1947: This is a sweeping provision which would apply to "a member of the armed forces of the Crown while on duty". It would have an unfair effect on the protection of our troops from negligence by others, when not engaged in combat. 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 Crown immunity in such cases would protect the incompetent.

Clearly Defined UN Resolution: While defining the mission and authorities in detailed terms in a UN Resolution would be an option, it would not remove scope for challenge based upon whether the wording in fact permitted the activities complained about. But it would make it more difficult for the ECtHR to brush aside the primacy of UN Charter art 103.

3. Unified approach: Council of Europe nations should come together to agree a unified approach to the problem of prisoner handling/detention ops. This may then produce an initiative for changing the ECHR.

4. Derogation from Articles 2 and 5: The encroachment of the ECHR into the battlespace cannot be halted while ECtHR decisions effectively have pre-eminence. Arrest and detention operations are all subject to the ECtHR’s overarching jurisdiction. The clear and pragmatic judgment of the Court of Appeal in the Al Saadoon and Mufdhi case shows how wide the gap is between our courts and the ECtHR and how incongruous the result. Short of leaving the ECHR altogether, derogation under article 15 would be the only viable course to exempt claims under articles 2 (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. Such a course would not deprive a victim of justice. The Hague Convention of 1907- and the Regulations made under it - provides a way for the recovery of compensation in appropriate cases. At present the ambit of article 2 over our troops overseas is not clear. Training is a different matter. Our servicemen and women are the military’s most valued asset. While realistic training is vitally important, it should not expose those involved to unnecessary and reckless risk. There must be more openness in the information made available to injured servicemen or the families of deceased servicemen of the circumstances of any incident causing injury or death.

November 2013