HC 931 UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from General (Retd) Jonathan Shaw

The right to life, enshrined in the human rights package, is inimicable to the unlimited contract that is the soldier's lot. Take away the unlimited liability and you lose the essence of soldiering. When a soldier signs on the dotted line, he, in effect, signs up to the right to die for his country. He places duty to the Crown above his own personal safety. That is why military service is in my view up there with religious devotion and is the most selfless of pursuits. That is why soldiers respect themselves and why in turn they are respected. That is what differentiates civvies from soldiers; civvies think primarily about themselves, and are legally supported in this view; soldiers think about the team, the family, the mission, not themselves. See my piece in the Tablet last year on Why Soldiers Kill. HR legislation is fundamentally incompatible to the soldier's unlimited contract on which soldiering depends. The intrusion of the right to life on to the battlefield will inevitably undermine the military profession and result in far bloodier engagements on the battlefields as a commander can take fewer risks with their own troops who might sue him so resorts to massive violence against the opposition to lessen the risk to his own troops. In old fashioned inter-state war that might arguably have been sound tactics; In war amongst the people, this is disastrous tactically as well as strategically. The Israelis are already there. On CAST LEAD, I was told (in my ACDS(ISP) role as lead UK MoD contact with Israel and the IDF) tales of orders being given then challenged by a) rabbis and b) lawyers. The result was a brutal operation that flattened Gaza (an eye for an eyelash) to international opprobrium but few legal cases inside Israel. Is that really where the HR lobby want to take us? Is it morally justified to place our Human Rights on such a pedestal that we grant the opposition none? 

I feel this personally. I lost five men on Longdon, on an independent action where I took the decisions. Given the way legislation is applied retrospectively, will I feel the long arm of the law at some stage, as aggrieved parents sue me for incompetence? It was bad enough in 1990 being investigated as part of the Excursion to Hell review.

I have read the Tugendhat paper and agree his view that there is a problem with our direction of travel. My view is that we are sleepwalking into this. As a nation, we have not adapted our language to the new nature of conflict. We talk of the last wars in Iraq and Afghanistan with all the baggage that comes with them, baggage from world wars of national survival. These latest 'wars' have been no such thing. Since the overthrow of the Taliban in Afghanistan and the Saddam government in Iraq, these operations have been political campaigns with the military in support as enablers of the political end state. That is why every death has been overseen by a Coroner's court and a verdict of unlawful killing decided. So we have been asking our soldiers to conduct war like activity but under civilian law. The current inquiry into the Danny Boy operation is, I understand, more a trial of the MoD's legal framework for operations than of the actions of the soldiers themselves. As Rupert Smith argues convincingly in Utility of Force our institutions and language have not kept pace with developments and we are now in an incoherent posture. Imposing human rights civilian law on the battlefield will make this incoherence so stark as to question the military viability altogether.

January 2014