Session 2013-14
UK Armed Forces Personnel and the Legal Framework For Future Operations
Written evidence submitted by Professor Sir Adam Roberts
Emeritus Professor of International Relations, Balliol College, Oxford
Summary
o This evidence covers relevant aspects of two distinct bodies of law – the international law of armed conflict and international human rights law – and their impact on UK armed forces personnel. Among other things it explores problems in the relation between these two bodies of law. By their very nature, the conflicts in which the UK has been involved, and is likely to be involved in future, give rise to extensive legal fall-out relating both to the law of armed conflict and to human rights law. (§2–4)
o Over centuries, successive UK governments have been deeply involved in the development of international agreements and institutions that have a bearing on war and on peacekeeping. That framework is generally understood and valued by those who have to implement decisions. However, certain criticisms of the role of law vis-à-vis military operations need to be taken seriously. (§5–8)
o The law of armed conflict is well recognized to be the main body of international law relevant to UK military operations overseas. However, in the UK there have been some significant failures in training in, and implementation of, this body of law, especially in the key matter of detainee treatment. The Defence Committee will need concrete and detailed assurance that the 73 recommendations made in The Baha Mousa Public Inquiry Report (Part XVII) are being addressed effectively; that there is solid evidence of improvement in the overall standard of training of the armed forces in all aspects of the law of armed conflict; and that the result of the Copenhagen Process, attempting to harmonise the practices among allies regarding detention matters, is seen as providing a useful basis for operations – or, if not, some other course is being pursued to address the same problem. (§9–12)
o In some conflicts there is a continuing need for clarity about the law that is applicable. Several ongoing projects seek to secure the application of the laws of armed conflict, with certain modifications, in civil wars. These include Geneva Call and the Project for Harmonizing Standards for Armed Conflict. These are inherently difficult enterprises, not least because governments are reluctant to grant their adversaries the status of prisoners of war. Another, more limited, approach to the same problem – worth considering as a minimum first step – may be for individual states to make a declaration (as the US has done) that their forces will comply with the law of war during all armed conflicts, however such conflicts are characterized. (§13)
o ‘Lawfare’ – essentially a practice, not a doctrine – is far from new, but has increased in importance because of the unequal nature of many contemporary conflicts and the role of the media in them. There needs to be a capacity for robust public response tailored to the circumstances of each case. (§14)
o The international law of human rights has become widely used in conflicts and occupations because it provides mechanisms for individual redress in ways that the law of armed conflict does not. The use of the European Court of Human Rights in cases involving actions of UK armed forces has not been a wholly negative experience for the UK. However, the Court’s decision in the Al-Jedda case in July 2011 poses serious problems. It held that states parties to the European Convention on Human Rights may not intern civilians unless there is a binding and explicit UN Security Council mandate, or a derogation to Article 5 of the European Convention has been entered. This contradicts clear provisions in the law of armed conflict (1949 Geneva Convention IV) whereby non-criminal detention for imperative security reasons is permitted. (§15–17)
o The relation between human rights law and the law of armed conflict is problematic in the US as well as in Europe. This has contributed to the delay in publication of the US four-service manual on the law of armed conflict. (§18)
o Human rights law and institutions are here to stay, and in some respects their role in respect to operations in which UK armed forces are involved has been positive. However, there are issues regarding the application of human rights law in situations of armed conflict and occupation that need to be addressed. (§19)
o Some recommendations for action by Government. (§20)
Introduction
1. I am Senior Research Fellow in International Relations, Oxford University, and Emeritus Fellow of Balliol College, Oxford. President of the British Academy, 2009–13. Author and editor of articles and books on the strategic and legal framework of military activities. Joint editor of Documents on the Laws of War (3rd edn., Oxford University Press, 2000); and of The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008). Member, UK Defence Academy Advisory Board, since 2003.
2. The legal framework that has a bearing on military operations is of long standing, and is multi-faceted. It includes, but is not limited to, four distinct but overlapping elements:
· The law relating to the legitimacy of resort to force (i.e. the jus ad bellum);
· UK law (including statute law, military manuals, the decisions of courts and commissions of inquiry);
· The law of armed conflict (also known as the jus in bello, the laws of war and international humanitarian law);
· International human rights law.
This evidence relates mainly to the last two of these four categories. It considers certain aspects of their impact on UK armed forces personnel, and the adequacy or otherwise of training in international legal issues relating to military operations. This evidence does not cover more than a very few UK legal issues (the second category above), important as these undoubtedly are: indeed, some UK legal issues, where they involve relations between individual members of the armed forces and the Ministry of Defence, may be among the trickiest that the Committee has to address. Nor does it cover such important matters as the jus ad bellum, the terms of authorizing resolutions of international bodies such as NATO or the UN, or the terms of agreements with host states about the stationing of troops on their territory. The legal framework of contemporary operations is indeed multi-faceted and extensive.
3. For the past half-century or more, the great majority of armed conflicts around the globe have not been inter-state wars between well organized industrial states, but conflicts within post-colonial states. 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, including those 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. A particular difficulty arises if, in a given conflict or, outside forces are thinly spread out and under-manned: they may be ill-equipped to fulfil some of the obligations of the law of armed conflict, including with regard to detention.
4. 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.
5. The fact that there is some criticism of the way in which certain legal rules and procedures have impinged on the UK armed forces in this century should not overshadow the enduring importance of the legal framework within which the activities of armed forces take place. Since at least 1856, with the conclusion of the Paris Declaration on maritime law in war, successive UK governments have been deeply involved in the development of a wide range of international agreements and institutions that have a bearing on war and on peacekeeping. There has been much military as well as diplomatic, political and legal input into the drawing up of agreements. While it is nothing new that there should be controversies about it, the resulting legal framework has had (and continues to have) at least three significant benefits for this country and its armed forces:
· It provides assurances for the armed forces (most obviously in confirming their right to prisoner-of-war status if captured).
· It is one key basis for recognizing the legitimacy of particular campaigns and activities.
· It has particular importance in facilitating close working relations with allies in multinational operations of various kinds.
6. The UK has long recognized the importance of the question of how legal agreements work out in practice. It is one of a number of countries (including many of our NATO allies) which have consistently made important declarations indicating how they interpret and propose to implement particular provisions. The military input into such statements has been substantial. A good example is the 16-point UK statement made in 1998 at ratification of 1977 Protocol I additional to the 1949 Geneva Conventions. Thus those parts of international law with a bearing on armed conflict should not be viewed as an alien imposition either on the UK in general or on the UK armed forces in particular.
7. My overall impression, as a result of talking with officers and officials, and legal advisers of UK armed forces, is that there is recognition of the value of the legal framework within which they have to operate. At the sharp end that framework often boils down to some relatively simple rules of engagement. These are widely accepted as a necessity if the actions of armed forces are to be seen as purposeful, consistent, and legitimate.
8. 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.
Law of Armed Conflict
9. In successive UK and coalition military operations (e.g. in the Falklands, Iraq, Kosovo/Serbia, and Afghanistan) there has been considerable emphasis on conducting operations in a manner consistent with the law of armed conflict. Such matters as targeting, detainee treatment, and management of occupied territory have been considerably affected by the international legal framework. On the whole this framework has been seen as positive, and consistent with the attainment of key objectives of the operations concerned.
10. However, there have been some significant weaknesses in the UK performance regarding implementation of the laws of armed conflict. Perhaps the most important weaknesses have been the cases of maltreatment of detainees in Iraq following the 2003 invasion. (By contrast, there was little or no complaint about detainee handling in the 1991 Gulf War in which a designated Prisoner of War Guard Force consisting of no fewer than three infantry battalions was set aside to ensure correct treatment of what turned out to be very large numbers of Iraqi prisoners.) In this evidence, while being fully aware that others could be cited, I will refer to one case of poor UK performance in the 2003 Gulf War: the events leading to the death of Baha Mousa when he was in British custody in Basra in September 2003 – i.e. in the occupation phase of the UK role in Iraq. The Baha Mousa Public Inquiry Report (September 2011), is excellent both as an analysis of the facts and as an exposition of the legal situation surrounding them. Part XVII made 73 recommendations to the MoD. The MoD has made certain responses to the report’s recommendations, including initiating certain much-needed improvements to training in detainee-related matters. The Defence Committee will no doubt be receiving evidence from MoD, including a full account of its response to the Baha Mousa Inquiry recommendations.
11. There remains the broader question of improving the overall standard of training in all aspects of the law of armed conflict. As a member of the Defence Academy Advisory Board I have been involved in correspondence and discussions with the Joint Services Command and Staff College, Shrivenham (about strengthening the coverage in the Advanced Command and Staff Course); and also with Army Legal Services, Warminster (about the armed forces’ training policy in the law of armed conflict). In both cases there is general recognition that there is a need for improvement, and for a clear idea of progression in the level of expertise required at different levels in the armed forces. These discussions are ongoing, and are only a very small part of a larger process of improvements in training in these areas. I should add that it is obviously not enough to convey teaching of the law of armed conflict simply in specific law modules of otherwise wide-ranging courses: awareness of such legal issues needs to be an integral part of all aspects of training.
12. On detainees, there has been an important issue to be resolved, of harmonizing the practices of coalition partners in a particular operation. In Afghanistan there have been problems and controversies surrounding the handing over of detainees to different legal jurisdictions with different standards regarding detainee treatment. 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. The Copenhagen Process (2007–12), initiated by the Danish government, and the resulting October 2012 document on ‘The Copenhagen Process: Principles and Guidelines’, has been a useful attempt to facilitate a common approach. As paragraph II of this document states, ‘it should contribute to ensuring the humane treatment of detainees and the effectiveness of international military operations’; paragraph IV notes a still unresolved doctrinal issue when it recognizes ‘the challenges of agreeing upon a precise description of the interaction between international human rights law and international humanitarian law.’ I will return to this doctrinal issue in the paragraphs below (§15–19) on human rights law. In addition to the now-completed Copenhagen Process, the International Committee of the Red Cross is working on the closely related issue of detention in non-international armed conflicts.
13. One underlying reason for difficulty in applying the law is that so many conflicts in the world today are partly or wholly non-international in character, with the result that the majority of the provisions of the main treaties on the laws of war are not, according to their terms, formally applicable to them. Yet international forces operating in such an environment may wish to see certain common standards recognized. A number of ongoing projects seek to secure the full application of the laws of armed conflict even in civil wars. ‘Geneva Call’ has actively sought the participation of non-state armed groups in such a process, placing particular emphasis on specific issues such as certain weapons and child soldiers. Meanwhile the Project for Harmonizing Standards for Armed Conflict, led by the former Legal Adviser of the Foreign and Commonwealth Office, Sir Daniel Bethlehem, has been working on a more ambitious model declaration that states might make unilaterally to agree to be bound by the provisions of the 1949 Geneva Conventions and 1977 Additional Protocol I (albeit with certain reservations) in conflicts of a non-international character. Such projects reflect an interesting tendency, observable in the statutes and decisions of many of the international courts and tribunals established in the past two decades, to apply international standards to the forces involved in conflicts with a largely or entirely non-international character. Yet, as their proponents are the first to agree, these projects run into serious objections: for example, governments tend to be reluctant to grant their adversaries the status of prisoners of war. Another, more limited, approach to the same problem may be for individual states to make a declaration comparable to those made by the US (including in Department of Defense Directive 2311.01E as certified on 22 February 2011) to the effect that US forces ‘will comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.’ This formulation is compatible with the idea that the law may be applied in certain situations as a matter of government policy as distinct from formal international legal obligation. Such an approach may be worth considering as a minimum first step to begin to address this problem. However, any move in this direction would need to take account of the fact that in some situations in which members of the armed forces are deployed (e.g. peacekeeping) there may be no armed conflict – or, if there is one, UK forces are not parties to it. In such circumstances the law of war may not be the most relevant or appropriate legal framework.
14. The Defence Committee has stated that it wishes to examine the developing concept and doctrine of ‘lawfare’ – a term invented by a US air force general to refer to the systematic use or misuse of the law by adversaries of the US as a propaganda tool to discredit the actions of US forces. Actually it is a widespread phenomenon, not limited to conflicts in which the US is involved. It is a very old practice, many examples of which can be found in earlier centuries, and it is one in which Western states as well as others have at times engaged. There is nothing in it that could be dignified with the title of doctrine. In recent decades the capacity of the US and a few allies to wage high-technology warfare has led to a pattern of response in those less developed societies that are the subject of their military attentions. In wars in Kosovo, Iraq, Afghanistan and elsewhere, the USA’s adversaries, faced with US capacity to hit certain types of military target almost at will and to spare civilian areas and objects, have resorted to actions that violate the obligation to keep military assets and targets out of civilian areas, and especially violate the obligation to keep them away from protected sites such as hospitals and mosques. Any subsequent US attack on such a site may then be portrayed as a war crime. In some cases, too, the USA’s adversaries may have simply fabricated US attacks on such sites in order to discredit the US. Such lawfare has increased in importance because of the role of media in contemporary conflicts. Since by nature it involves legal violations, mendacity, and publicity, there needs to be a robust public response tailored to the circumstances of each case.
Human Rights Law
15. The development of human rights law in the years since 1948, when the Universal Declaration of Human Rights was adopted, has brought new principles and procedures into play that have increasingly had effects on the operations of armed forces. This body of law developed out of the experience of war and dictatorial rule at the time of the Second World War. A particularly significant feature, which explains its increasing use today in connection with military operations, is its provision for various forms of redress, including through the European Court of Human Rights, established in Strasbourg in 1959. The law of armed conflict simply does not provide mechanisms for individual redress in the way that human rights law does; but the law of armed conflict is still highly relevant in the ensuing cases as an indication of the rules that armed forces are expected to follow.
16. A significant number of cases relating to actions of UK armed forces have been taken to the European Court of Human Rights. For example:
· Many cases related to detention issues in Northern Ireland were taken to the Court. Although it might have been expected that such appeals to a court outside the UK would cause resentment, officials in the Ministry of Defence and Northern Ireland Office have been cited as regarding the process ‘although painful and hard fought all the way, as ultimately beneficial.’ (Hansard, House of Lords, 8 March 2001, col. 371.)
· The shootings of IRA personnel in Gibraltar in 1988 led to a case in which the actions of the UK soldiers were specifically upheld by the Court in 1995, though the UK was held liable (by a majority of one) on other grounds: the Court’s judgment in this case showed significant understanding of the soldier’s need to take action based on rapid interpretation of necessarily incomplete information.
· In the case of Baha Mousa, it was on the basis of its liability under the European Convention on Human Rights that the UK government accepted that the Convention applied to those in British military custody overseas.
17. The record of the European Court of Human Rights with respect to UK and other military actions is far from being problem-free. A particular issue in which its record has been widely questioned is the relation between human rights law and the law of armed conflict. Naturally the court is more familiar with human rights law, and in some cases it has been criticized for apparently giving priority to human rights law, even in the circumstances of international armed conflict – for which, of course, the law of armed conflict is the lex specialis. This issue arose in two major judgments against the UK in July 2011, Al-Skeini and Al-Jedda. In the second case, the Court decided that states parties to the European Convention on Human Rights may not intern civilians unless there is a binding and explicit UN Security Council mandate, or a derogation to Article 5 of the European Convention has been entered. This outcome may have been the result of a flawed argument by government lawyers, who had apparently chosen not to raise provisions of the law of armed conflict as a basis for detention, but instead to rely on the authority of a UN Security Council resolution. The legally peculiar judgment simply contradicted clear provisions in the law of armed conflict (especially 1949 Geneva Convention IV) whereby non-criminal detention for imperative security reasons is permitted. The Court’s conclusion could even be read to apply equally to the internment of prisoners of war. Legal experts of the International Committee of the Red Cross have been justifiably concerned about the implications of this judgment.
18. The relation between human rights law and the law of armed conflict is problematic in the US as well as in Europe. Deeply held positions on the applicability or otherwise of human rights law to US military operations overseas have been one factor contributing to the delay in publication of the long-awaited US four-service manual on the law of armed conflict. This failure has many causes. Although the complexity of the law could be cited as a factor, that very complexity makes an authoritative synthesis of the law all the more necessary. In this case a principal obstacle appears to have been a difference between the State Department and the Pentagon about the relative weight to be given to the lex specialis of LOAC as distinct from human rights law.
19. Human rights law and institutions are here to stay, and in some respects their role regarding operations in which UK armed forces are involved has been positive. To criticise the role of all law on the grounds that it hampers military operations would be to misunderstand the long-standing and important role of the law of armed conflict in this area. Even a more limited rejection of any and all application of human rights law in armed conflicts and occupations overseas would be problematic: it would deny aggrieved parties a mechanism of redress, and would invite extensive international criticism. There are, however, issues, particularly in relation to the application of human rights law in situations of armed conflict and occupation, that need to be addressed. This paper, while it has touched on only a few of them, suggests 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.
recommendations
20. In the specific areas that it has covered, this evidence suggests a number of recommendations for action by the Government, including the following:
· Ensure that overseas operations are sufficiently manned and equipped to fulfil relevant obligations of the law of armed conflict, including with regard to detention. (§3)
· Respond constructively to the many concerns in the armed forces regarding the legal frameworks within which military operations of all kinds take place. (§8)
· Improve training of military personnel at all levels both in the specific matters of detainee treatment addressed in the Baha Mousa Inquiry Report, and more generally across the range of issues covered in the law of armed conflict. Ensure that legal issues are covered in all aspects of training, and are not confined to separate modules. (§10–11)
· Indicate how adequately or otherwise the 2012 outcome document of the Copenhagen Process meets the need to harmonise the practices of states in a coalition so far as treatment of detainees is concerned. (§12)
· Indicate the UK attitude to the application of international rules in non- international armed conflicts, and in particular whether it is government policy that the UK will comply with the law of war during all armed conflicts in which they are involved, however such conflicts are characterized. (§13)
· Ensure that its legal advisers are aware of the problems regarding the application of the law of armed conflict that arise from the judgment of the European Court of Human Rights in the Al-Jedda case; and that in future cases they should place proper emphasis on the Geneva Conventions basis for detention operations. (§17)
· Continue the process whereby the UK, along with other countries, has accepted that both the law of armed conflict and human rights law have a place in relation to military operations, but recognise certain problem areas where these two bodies of law take a different approach.
December 2013