UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from the Ministry of Defence

The Ministry of Defence welcomes the Defence Committee’s decision to set up an inquiry into the legal framework for future operations by the UK Armed Forces. This is a matter of increasing concern to the Government in the light of recent legal developments and the Committee’s views will be a timely contribution to the debate.

2. The Committee has posed three specific topics for examination. There is in practice a good deal of overlap between these questions, but in making its observations the Department will try as far as possible to follow the order in which they are posed.

The legal protections and obligations applying to UK Armed Forces personnel (regular and reservist) when deployed in the UK or abroad in UK-only or coalition operations

3. The position on deployments within the UK is well understood. It is based on the common law, statute (including Service law), EU law (in areas such as sex and race discrimination) and the European Convention on Human Rights (ECHR). 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, and 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 (IHL), and the obligations created by the Geneva Conventions).

4. In the Government’s view this provided a satisfactory legal framework for the conduct of military operations, which in effect ensured that members of the Armed Forces were bound to a standard of conduct in many ways stricter than applies to civilians. This is not to claim that these standards were never transgressed: as with any code of rules, there have been violations, some of them very serious. But the important point is that the obligations were broadly understood and enforced. It was also considered that the extent of the rights of members of the Armed Forces, including the protections provided by ECHR, was sufficiently clear.

5.       The other aspect to note is that on operations abroad, criminal or service disciplinary jurisdiction remains a national responsibility. This is reflected in the NATO Status of Forces Agreement (SOFA) of 1951 and in the Memoranda of Understanding (MOUs) usually entered into with coalition partners and more importantly with host nation governments. A UK service person would be liable to court martial proceedings conducted by the independent Service Prosecuting Authority in the event of a breach of the criminal law of England and Wales. The police investigation would have been carried out, in normal circumstances, by a UK Service police force.  

6. 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. ECHR case law in key areas has developed in directions almost certainly unforeseen by the framers of the Convention as well as by the Governments whose actions have been subject to challenge domestically and in Strasbourg.

7. The two principal areas of uncertainty related to the ECHR in the field of military operations have probably been the extent of the Convention’s effect extraterritorially and the extent of the burdens imposed by the procedural obligation derived from the right to life and the prohibition on torture (articles 2 and 3).

Extra-territorial application of the ECHR

8. There has been a gradual extension of the circumstances in which the ECHR has been held to take effect beyond the territorial limits of member states. While there has always been an understanding that in limited circumstances the ECHR could apply extra-territorially, the range of these exceptional circumstances has grown significantly in the last decade as regards operations. The clear position set out in the leading cases of Bankovic and Behrami & Seramati, arising out of NATO’s intervention in the former Yugoslavia, has been muddied.

9. An important example is the European Court of Human Rights’ decision in the case of Al-Jedda. In this case the Court rejected the submissions of the UK Government that the Convention did not apply to military operations in Iraq and went on to rule that the detention of the claimant, a suspected insurgent, was contrary to their human rights although detention operations had been foreseen at the time the United Nations Security Council Resolutions authorised the military operations. The result has been that the Government has been forced to pay large sums of money to persons who were reasonably suspected of attacking and conspiring against UK forces and whose detention was believed at the time to be entirely lawful. (It is only reasonable to add that many of these people claimed that they had been ill-treated while in detention and that the Government in no way condones such ill-treatment in those cases where it occurred; but this would in any case have been justiciable under domestic law).

10. The circumstances of the military operations in Afghanistan differ in important and legally significant ways from those of the Iraq campaign. The Government position is that the Convention does not apply to the operations of UK forces in Afghanistan. Primarily this is because such operations are carried out under the auspices of the International Security Assistance Force, but there are a number of technical subsidiary arguments that lead to the same conclusion. These matters will be tested in a number of forthcoming cases. It is an essential element of the Government’s position that International Humanitarian Law together with domestic law provides a proper framework for the protection of the legitimate rights of combatants and non-combatants alike.

Article 2 & 3 ECHR procedural obligation

11. The second important area of uncertainty relates to what is termed the "procedural [as opposed to substantive] obligation". In the military context it has been held that where any person has died as a result of the actions of the Armed Forces a full, independent, and expeditious investigation must be carried out. In principle this is of course unexceptionable, but in the Government’s view it needs to be applied in a way which takes realistic account of the circumstances of military operations. The Government rejects, for example, any suggestion that deaths in battle must be investigated in the same way as, for example, murders; there must be a presumption that when soldiers are engaged in battle in accordance with their rules of engagement their use of force will be lawful. There have been submissions to the contrary in domestic litigation but at present the Government’s position on this matter has not been seriously impugned.

12. Nonetheless there have been areas where the application of the procedural obligation has been contentious. The first of these is retrospectivity. The Government is currently defending a judicial review alleging that it acted unlawfully in refusing to order a public inquiry into events which occurred over 60 years ago during the Malayan emergency. Such a public inquiry would cost the taxpayer many millions of pounds without, in the Government’s view, being likely to come to a definitive view of what happened given that virtually all witnesses are now dead. It is confident that the Court of Appeal, like the High Court, will uphold its position, but it is concerned that the costs of the litigation itself will run into the hundreds of thousands of pounds which are unlikely to be recovered by the taxpayer as the claimants are publicly funded.

13. The second area of uncertainty arises from the extent of the procedural obligation to investigate deaths. The Courts have consistently held, despite several attempts to argue otherwise, that in principle the criminal aspects of allegations of death or abuse against members of the Armed Forces can be investigated independently and effectively by the Service police, except where the allegations will necessarily involve a police investigation of the conduct of members of the Service police or other personnel coming within the responsibility of the heads of the Service police. The claimants sought to argue in these cases that there should instead be a public inquiry would almost certainly have dwarfed the costs of the Bloody Sunday Inquiry, which eventually mounted to £191.5 million. These demands have been rejected by the Courts as wholly disproportionate.

14. In the first Ali Zaki Mousa case the Court held that the Royal Military Police (RMP) could not be responsible for the police investigation, because the allegations were such as to require possible investigation of the conduct of certain individuals who were also commanded by the head of the RMP. But the Court approved investigation by the Royal Navy Police supported and resourced by the Iraq Historic Allegations Team (IHAT) (comprised essentially of civilians).

15. An area of uncertainty does however remain as to the wider ECHR requirement for scrutiny of the circumstances in which people are killed by agents of the state. This goes beyond criminal investigations. Within the UK this wider obligation is met by a coroner’s inquest and by consideration by the Government (where relevant) of any wider issues that emerge.The Court called for inquisitorial inquiries akin to Coroners’ inquests particularly in the small number of cases where Iraqi nationals had died in the custody of British forces. The Government is making arrangements for these inquiries to take place once IHAT investigations and any resulting prosecutions have been concluded.

The effects of the developing concepts and doctrines of "lawfare" and universal jurisdiction

16. We turn now to the Committee’s second question. Something has already been said about the extension of ECHR jurisdiction in ways previously unpredicted. The Government has been ready to accept the concept of universal jurisdiction as a rare exception to the principle of territorial jurisdiction in the case of certain crimes of an international character where Parliament has been satisfied of the need for it, such as hostage-taking or torture committed by persons acting in an official capacity. This remains its stance. Fears that existed in 2003 concerning the International Criminal Court have proved unfounded. Under the principle of complementarity, the UK retains the right to investigate and where necessary prosecute UK citizens, those resident in the UK and those subject to UK Service law for any crimes caught by the Rome Statute. The ICC cannot investigate or try a case unless a State is unable or unwilling to launch an investigation itself. As a former UN Secretary General put it: "the Court represents no threat to a State with an organized criminal justice system".

17. As to the question of "lawfare", 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, in particular the findings of coroners’ inquests into the deaths of members of the Armed Forces on operations and the reports of the Haddon-Cave Review, and the Baha Mousa Inquiry. 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.

18. There are however two aspects of the current extensive litigation which do cause the Government concern. Both are being addressed by the Ministry of Justice. The first is the apparently ready availability of legal aid for actions challenging the conduct of military operations, some of them weak or ill-thought out. Such actions are often brought in the name of overseas nationals or of UK nationals who may have little or no personal stake in the matter. While the government recognises that, within the legislative framework for legal aid, decisions on support to be provided to individuals must be made independently, the Ministry of Defence has been concerned that legal aid has been granted recently for at least two judicial review cases to be taken to appeal after having been roundly rejected at the High Court. It therefore welcomes the steps announced by the Ministry of Justice to reform the rules on access to legal aid, particularly in cases brought by overseas claimants.

19. The second aspect is the use of judicial review in cases which might more appropriately have proceeded as personal injury claims. Judicial review is there as a mechanism for the scrutiny of decisions primarily made by or on behalf of Ministers. In many cases of alleged personal injury, particularly those arising from operations in Iraq, however, the claimants’ lawyers have proceeded by way of judicial review, alleging inadequate investigation even before the investigation has concluded. Given that neither the Minister nor his officials have taken any decision, this seems an inappropriate way of proceeding and it is certainly one which leads to the expenditure of far larger amounts on legal fees than would personal injury claims.

Impact of the judicial development of Duty of Care concepts and of domestic UK law and claims of negligence, on UK operational decision making processes and arrangements for recording decisions and events by operational commanders

20.     The Committee’s final question relates to the judicial development of duty of care concepts. This is a matter of real and current concern to the Government. Historically the Crown could not be sued in its own Courts. When that rule was abolished after the Second World War (by the Crown Proceedings Act 1947) an exception was made by section 10 of that Act for members of the Armed Forces who remained unable to sue the Government for death or personal injury caused by another member of the Armed Forces if the death or injury was certified as pensionable by the Secretary of State. This exception was repealed by the Crown Proceedings (Armed Forces) Act 1987, although by section 2 of the 1987 Act (which is still in force) the effect of section 10 could be revived for all purposes or for such purpose as may be described in an order made by a statutory instrument under the negative resolution procedure in case of either (a) any imminent national danger or (b) for the purposes of any warlike operations in any part of the world outside the UK. Since 1987 no revival order has been made. Given the virtually universal recognition that members of the Armed Forces on operations are in an inherently dangerous occupation and that the duty of care applicable to a civilian context cannot apply to them in the same way, the doctrine of combat immunity was rapidly adapted by the UK Courts to cover the position of UK armed forces on operations where they come under attack or face the threat of attack or violent resistance: the leading case was that of Mulcahy v Ministry of Defence (1996) which related to the first Gulf War, which of course took place four years after the 1987 Act came into force.

21. The implications of this year’s Supreme Court judgment in the conjoined cases of Smith and others v MOD, Ellis v MOD, and Allbutt and others v MOD are not yet clear. These are all tragic cases of deaths on the field of combat in Iraq: the Government has every sympathy with the claimants but is obliged to defend these claims on important grounds of legal principle. Briefly, the argument of the claimants is that, while these tragic incidents did indeed take place in the course of combat, combat immunity should not apply because they can be traced back to previous decisions about the provision of equipment and training to the soldiers which could – they argue – have protected them more effectively.

22. The Government is concerned that this argument could be applied to virtually any claim to which the principle of combat immunity has hitherto been understood to apply, and if accepted could have the effect of opening up the conduct of combat to the scrutiny of the courts after the event. This in turn could have seriously debilitating effects on the decision-making of commanders on the ground which could in the long run seriously impair this country’s military effectiveness. It therefore sought to have the claims struck out by the courts on the grounds of combat immunity.

23. The Government was therefore disappointed when the Supreme Court decided on 19 June, by a majority of 4 to 3, not to strike out the claims but to allow them to proceed to trial. The Government notes the analysis in the dissenting speech of Lord Mance, which warned that "the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war".

24. There were aspects of the majority view from which the Government takes comfort. The judgment upheld the continued existence of the doctrine of combat immunity. The majority specifically excluded liability on the part of those actually engaged in active combat. It also stated that, where it was alleged that a prior decision was the true cause of the injury or death, the more "political (in a broad or narrow sense)" that decision, the more reluctant the court should be to go behind it. As Lord Hope said in his speech explaining the majority view, when the cases come to trial "the trial judge will be expected to follow the guidance set out in this judgment as to 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".

25. The Government’s initial response to the judgment will, therefore, be to defend these and similar cases vigorously. Its determination to do so goes hand in hand with its commitment to compensate service personnel or their families for injury, illness or death that is predominantly caused by service, whether that be in the course of active operations, training or maintaining fitness, on a no-fault basis through the statutory Armed Forces Compensation Scheme. It firmly believes that this approach is preferable in principle to the stress and uncertainty involved in litigation.

26. If these and similar cases come to trial, the Government has strong reasons to anticipate success. Nonetheless, it must give thought to the possibility of adverse developments in case law which could bring closer the prospect of "judicialisation of warfare" referred to by Lord Mance. 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.

27. The Committee’s question rightly calls attention to the importance of recording all important decisions and events in the course of operations. There have been many instances in which failure to document matters which have subsequently come before the courts have prejudiced the Government’s position, and in some cases forced it to concede claims which might otherwise have been successfully defended. The importance of the requirement to document significant events and decisions is regularly explained to personnel in training as well as being emphasised in relevant instructions and regulations.

November 2013

Prepared 20th November 2013