UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from Martin Hemming

I am Martin Hemming, and I am a former Government Lawyer. In the course of my Civil Service career I spent 14 years advising the Ministry of Defence, including 11 years as the Department's Legal Adviser (between 1998 and 2009). In that capacity I advised on a range of legal issues arising in relation to the UK's involvement in the Balkans, in Afghanistan, and in Iraq. I am an Associate Fellow of the Royal United Services Institute and a Senior Associate Fellow at the lnstitute for Security and Resilience Studies.

Introduction

2. I have been asked to submit written evidence relating to the Committee's current investigation. I have had the benefit of reading the papers already submitted to the Committee (including by some distinguished legal and military experts). I have also considered the Policy Exchange's recent report - The Fog of Law [1] . I hope in this paper to avoid the repetition of points well made by others, and to seek to focus on certain themes that I think are important. I should say, however, that I found the evidence of Dr Jonathan Morgan very compelling.

3. Most people would agree that the law should be as clear and accessible as human effort can achieve. Service personnel need and deserve to have a high degree of confidence that their day-to-day decisions in operational conditions are lawful, and that their own personal position is legally secure. If, after proper training, they feel unable to take such decisions without taking legal advice, then they may justifiably feel that something is wrong with the law [2] . Since about 2000, legal proceedings involving the MOD – including inquests, civil litigation founded on common law claims as well as the Human Rights Act 1998 (‘HRA’), and the developing jurisprudence of the European Court of Human Rights (‘ECtHR’) on the extraterritorial application of the European Convention on Human Rights (‘ECHR’) - are widely perceived as having muddied rather than clarified the legal waters, and to have raised uncertainty about the true legal position in a number of important areas.

4. The written evidence submitted to the Committee to date, and the discussion in The Fog of Law, serve to illustrate the nature of the debate, and the heightened uncertainty that underpins any consideration of the application of law to the operations of the UK's armed forces. My own view is that this debate on occasion proceeds on a flawed basis, and this can apply to all sides of the argument. In the military, as in any large people-based organisation, misconceptions can take root and soon acquire the status of established truth. And it is what individuals actually believe, whether or not it is well founded, that informs the way that they act and feel, and influences their willingness to assume responsibility and risk. Perception can be every inch as important as objective reality. This issue – and steps that might be taken for the avoidance of misunderstanding - is one of the concerns that the Committee may wish to take into account in its deliberations. Against this background, I shall turn to the Committee's topics for examination.

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

5. It is very important to distinguish at all times between the personal position of individual members of the Armed Forces, and the position of the UK Government. I suspect that much of the concern that has been generated by recent legal developments among those serving in the Armed Forces is influenced by a belief that they have somehow been placed at an increased risk of personal civil and criminal liability. It is worth examining the true position.

The criminal liability of member of UK Armed Forces

6. Individuals are bound by the criminal law of England and Wales wherever in the world they are serving [3] . There is no special treatment or dispensation for Service personnel. If they break the criminal law, they can face the consequences in court just like any other citizen. If there are mitigating circumstances surrounding their commission of offences, those can be taken into account in sentencing, just as in the case any convicted civilian. Service personnel are, in addition, subject to specified disciplinary offences for which they may face military justice and punishment [4] . An obvious example of such a disciplinary offence is that of disobeying a lawful order [5] .

7. If Armed Forces personnel commit offences under English law during operations, they can be prosecuted and punished if found guilty. Some actions that would be unlawful outside armed conflict will be lawful if done in armed conflict. And some offences can only be committed in situations of armed conflict. In the Court Martial concerning the death of Baha Mousa, Corporal Payne pleaded guilty to an offence under the lnternational Criminal Court Act 2001 [6] . The offence was one of those categorised as a 'war crime' by the International Criminal Court Statute, namely inhuman treatment constituting a grave breach of the Fourth Geneva Convention [7] . Such a grave breach had been a criminal offence in the UK since as long ago as the Geneva Conventions Act 1957. The recent conviction of Royal Marine Sergeant Alexander Blackman was for the common law offence of murder.

How the HRA and ECHR impact on the personal position of member of the Armed Forces

8. The responsibility of Service personnel under the criminal law is unaffected by any of the human rights court cases of recent years, or the enactment of the HRA. In a memorandum submitted to the Joint Committee on Human Rights in October 2007 [8] , the MOD said this:

"14. The Committee will recall the evidence of Lord Goldsmith [in June 2007] :

"…. it is also very important to recognise that the obligations which nobody has been in any doubt apply (namely, the obligations under the Geneva Convention, the obligations under the Convention Against Torture) all applied, so did domestic criminal law. That is why any soldier who mistreated, treated inhumanely, let alone tortured, a detainee in the course of a UK detention would have been liable to Court Martial, and, indeed, that is precisely what happened. I do not believe, so far as the substantive standards of treatment are concerned, there is any difference between what the Geneva Convention, the Convention Against Torture require in relation to detention and the ECHR. I do not think there is any difference at all, so I do not think it matters, and I am not aware that anyone ever thought there was something that was permitted under the Geneva Conventions that is not permitted under the ECHR".

Lord Goldsmith therefore raised a relevant question: whether there is any mistreatment of a detainee permissible under the Geneva Conventions in a international armed conflict, and under the criminal law that applies to UK forces throughout the world at all times, that is nevertheless prohibited by the European Convention on Human Rights. The MOD can identify none.

15.  The Committee may also find it useful to take account of the comments of Lord Bingham, in his dissenting judgment in the House of Lords in the Al Skeini case. Holding that the Human Rights Act 1998 did not apply extraterritorially, Lord Bingham observed that:

"This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any cri mes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and (article 3) to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations are placed on contracting states by protocol 1 to Geneva IV An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v v Ministry of Defence [2004] EWHC 786 (QB)". "

9. Accordingly, the question of whether the ECHR applies in a situation of armed conflict, and the relationship between International Human Rights Law (IHRL) and International Humanitarian Law (IHL), has little impact on the personal liability under English law of Armed Forces personnel who are engaged on operations. The standards of conduct mandated by the criminal law are not affected by the application or non-application of the ECHR. If they comply with the criminal and disciplinary law that applies to them at all times, Service personnel can have high confidence in the legal security of their personal positions. They cannot be held personally liable in proceedings based on the HRA. In so far as the HRA created new legal remedies, they concern the liability of the UK Government (not individuals) for alleged breaches by UK public authorities of the UK's international law obligations under the ECHR. This important point is not always made clear. No claim based on the HRA has ever been brought against any individual member of HM Forces because it is not legally possible to do so.

10. As the Committee will be well aware, the two key cases against the MOD heard by the ECtHR and concerning operational activity have been Al Skeini [9] and Al Jeddah [10] . The Al Skeini proceedings were brought against the MOD. They were not about the nature and extent of the substantive obligations under Article 2 (the right to life) and Article 3 (torture and inhuman or degrading treatment). The case was always and only about the UK Government's procedural obligation to investigate to ECHR standards six incidents in which Iraqis died at the hands of agents of the UK state (ie the British Army). Any potential criminal liability of individual soldiers in relation to the six incidents could only arise under the ordinary criminal law that applies to all Service personal, and not under the Human Rights Act 1998, or the ECHR. Indeed, the death of Baha Mousa was the subject of and criminal investigation and prosecution while the HRA/ECHR proceedings were in train before the English civil courts.

11. Al Jedda was also a case brought against the MOD, and not against any individuals. It concerned detention without trial for security reasons, in alleged breach of Article 5 of the ECHR. No member of the Army involved in the process of detention was ever at any material risk of personal liability for what the ECtHR eventually decided was a breach of Article 5 of the ECHR, (thereby overturning the views of the Administrative Court, the Court of Appeal, and the House of Lords that there was no such breach).

12. The Committee's first subject area concerns the 'protections and obligations applying to UK Armed Forces personnel'. As I have suggested, the principal protections and obligations for individuals reside, as they always have, in their compliance with the domestic law that applies to them under the Armed Forces Act 2006. Any liability under civil law (in claims brought under common law or the HRA) for the actions of members of the Armed Forces is likely to rest with the Government. In circumstances in which HMG will not only have vicarious liability for the wrongful actions of service personnel in performing their duties, but will also possess the resources to satisfy any award of damages, the likelihood of common law civil litigation being commenced directly against individual members of the armed forces is, as the last 15 years demonstrates, very remote.

Does it make any difference whether Armed Forces personnel are engaged in UK-only or in coalition operations?

13. This question implies that the position of Service personnel abroad may be different, depending on whether they are involved in UK-only operations, or in coalition operations. I do not think this makes any difference to the position of individuals. Sometimes the question does arise about the position of UK personnel who are embedded in the command chain of another state's armed forces, or who are in a command position in another state's forces. They remain subject to English criminal law and UK military justice under the Armed Forces Act 2006. And the UK's state responsibility under international law for the actions of members of its Armed Forces in such circumstances remains.

14. Nothing in my comments should be taken as suggesting that the MOD and the Services can or should be cavalier about incurring civil liability. Far from it. The MOD and military commanders should of course do all they can to minimise the risk of civil liability, and strive to ensure that the actions and conduct of the Armed Forces are in compliance with all applicable national and international law, including the UK’s obligations under the ECHR. I know very well that this will always be their objective, and that the orders which Armed Forces personnel are asked to implement and obey will be framed with this in view. I merely seek to emphasise that the individual position of serving and former members of the Armed Forces in terms of the risk of individual criminal or civil liability for their actions on operations is as it always was, whatever the perception may be that things have somehow been changing for the worse.

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

Lawfare

15. I personally doubt that the 'lawfare' tag serves any particularly useful purpose. It tends unhelpfully to impugn the motives of those who act in legal proceedings that challenge the Government on military issues. It was probably inevitable that the enactment of the HRA would bring in its wake cases that would seek to extend the boundaries of extraterritorial ECHR application. But the first case on extraterritoriality arising from recent conflicts (Banković) was brought in 1999 against the UK and the 11 other member States of the Council of Europe (COE States) who were then members of NATO, and was heard directly before the ECtHR. Though the Applicants' principal legal representation was British, the case had nothing to do with the HRA (which did not come into force anyway until October 2000). A number of other important ECHR cases for UK Armed Forces, concerned with discrimination and aspects of the military justice system, all came before recent conflicts and the enactment of the HRA. I think it was also inevitable that the common law boundaries of combat immunity in civil claims would have been tested in the wake of UK involvement in military operations over the last 15 years.

Universal Jurisdiction

16. 'Universal jurisdiction' is the international legal principle whereby a state claims the right to prosecute crimes committed outside its boundaries, regardless of the nationality of the accused, or their state of residence. In international law there need not be any connection with the prosecuting state in order to prosecute certain serious crimes which are considered to be crimes against all of humanity. Under some international conventions ratifying states take on the international law obligation to assume universal jurisdiction under their domestic criminal law.

17. In the UK, there is true universal jurisdiction over the offences of grave breaches of the Geneva Conventions and Additional Protocols [11] , of torture [12] , and of hostage taking [13] . The International Criminal Court (ICC) Act 2001, on the other hand, does extend to offences committed outside the UK, but only by British residents (as defined in the Act) and members of UK Armed Forces.

18. It is therefore difficult to see what practical bearing, if any, the principle of universal jurisdiction has on the position of UK Armed Forces personnel. As already indicated, ordinary English criminal law (which includes all the offences for which UK courts may exercise universal jurisdiction) applies in any event to UK Forces wherever they are operating. Other countries will have taken universal jurisdiction over the same offences, but it is fanciful to suppose that any are likely to wish to exercise that jurisdiction over UK Armed Forces personnel as long as constitutional government and the rule of law prevails in the UK.

International criminal jurisdiction distinguished

19. It is important not to confuse universal jurisdiction with international criminal jurisdiction. UK Armed Forces have participated in two major international armed conflicts where an international court or tribunal had potential international criminal jurisdiction over their actions – Kosovo in 1999 (the International Criminal Tribunal for the Former Yugoslavia), and Iraq in 2003 (the ICC [14] ). In neither case has there been any serious question of international prosecution of Service personnel. ICC jurisdiction in respect of the UK was given effect by the ICC Act 2001. Given the ICC Statute's bedrock principle of complementarity - that the ICC can only ever exercise criminal jurisdiction to put a person on criminal trial where a state is unwilling or unable itself properly to investigate and prosecute - the then Foreign Secretary Robin Cook felt able to reassure the House of Commons that he was confident that no British soldier would ever stand trial in the Hague [15] . Furthermore, every NATO state at the time except the US was similarly ratifying the ICC Statute. Save in one respect (the crime against humanity of apartheid [16] ), all of the offences set out in the ICC Statute were considered, one way or another, already to be offences under the criminal law that applies to UK Service personnel. Despite these reassurances, many senior commanders remained fearful that the ICC Act would unfairly expose UK Armed Forces personnel to new vulnerabilities. Those fears to have yet to be realised.

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. I have no direct knowledge of the current impact on operational decision making, and on arrangements for recording decisions and events, but I note what the MOD says on the latter issue at paragraph 27 of its written evidence. What is of obvious concern is the powerful dissenting Supreme Court judgment of Lord Mance (supported by Lord Wilson) in the conjoined cases of Smith, Ellis, and Allbut and others. His comment that the majority decision "will make extensive litigation almost inevitable after as well as quite possibly during and even before, and active service operations by the British Army" would, I suspect, have been characterised as alarmist had it been made by a Minister or a senior military Commander. That it came from a Justice of the Supreme Court means that it less easily discounted, and it is right that consideration be given to steps that might ameliorate the operational consequences of the "judicialisation of war" that Lord Mance fears is not merely possible, but "likely". Time will tell if the Supreme Court majority’s strong direction to courts concerning "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" is heeded, both in those particular cases, and any that follow, as they surely will. However, the point at which that very wide measure of discretion will come to be accorded is likely only to be reached at the end of a litigation process that is lengthy, expensive, and time consuming, and of a trial in the course of which the operational judgments of individuals taken in testing circumstances, and in good faith, will have been forensically deconstructed, and very possibly publicly criticized. Should an unsuccessful Claimant be legally aided, there will be no realistic possibility of recovering the financial costs to the Defence budget of defending such claims.

Options

21. I shall conclude with some comments on three possible courses of action to address concerns that have surfaced in connection with the Committee’s current investigation.

HRA claims against the UK Government in relation to action taken outside the UK

22. In his judgment in the Al Skeini case in the House of Lords, Lord Bingham agreed with the MOD’s submission that the Human Rights Act 1998 did not apply to acts done outside the territory of the UK. It inevitably followed, he concluded, that the various claims under the HRA could proceed no further. The majority of the Panel in the House of Lords did not agree with Lord Bingham on the proper construction of the HRA, of course. At paragraph 12 of his judgment Lord Bingham said this:

"The UK was not in breach of any obligation binding in international law when it omitted, from 1953 to 1998, to give the Convention any direct effect in domestic law. In 1997-1998 it had a policy choice, whether to give effect to the Convention in domestic law at all, and if so to what extent. A decision to give no directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK, leaving such persons to pursue any such claim against the UK in Strasbourg, would have involved no breach of any obligation binding on the UK in international law."

23. Lord Bingham also made this observation (at paragraph 24) about the intention of Parliament concerning the HRA’s extraterritorial extent:

 "In the course of its careful consideration of this question [ie whether the HRA applied outside the UK] the Divisional Court observed (in paragraph 304 of its judgment): "It is intuitively difficult to think that Parliament intended to legislate for foreign lands". In similar vein, Brooke LJ in the Court of Appeal said (para 3): "It may seem surprising that an Act of the UK Parliament and a European Convention on Human Rights can arguably be said to confer rights upon citizens of Iraq which are enforceable against a UK governmental authority in the courts of England and Wales". I do not think this sense of surprise, which I share, is irrelevant to the court's task of interpretation. It cannot of course be supposed that in 1997-1998 Parliament foresaw the prospect of British forces being engaged in peacekeeping duties in Iraq. But there can be relatively few, if any, years between 1953 and 1997 in which British forces were not engaged in hostilities or peacekeeping activities in some part of the world, and it must have been appreciated that such involvement would recur. This makes it the more unlikely, in my opinion, that Parliament could, without any express provision to that effect, have intended to rebut the presumption of territorial application so as to authorise the bringing of claims, under the Act, based on the conduct of British forces outside the UK and outside any other contracting state. [17] "