UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from Professor Michael Clarke, Royal United Services Institute

Law and Armed Conflict

This paper is submitted by the Royal United Services Institute as evidence to the HCDC’s enquiry into law and armed conflict. It derives from a private meeting that involved a number of key participants (listed below) and included two members of the HCDC. None of the opinions expressed in this paper are attributed to the individuals at the meeting. Professor Michael Clarke and Justin Bronk of RUSI acted respectively as Chairman and rapporteur to the meeting.

Defence Committee. Law and Armed Conflict Meeting at RUSI

11 December 2013


Julian Brazier MP

Professor Michael Clarke, RUSI (Chairman of the meeting)

General Tim Cross (Ret.)

Professor Charles Garraway

Professor Francoise Hampson

Dai Havard MP

Martin Hemming

Karen Jackson

General Sir Nick Parker (Ret.)

Professor Sir Adam Roberts

Tom Tugendhat

Air Chief Marshal Glenn Torpy (Ret.)

Mr. Justin Bronk, RUSI (Rapporteur )

1. Implications of growing legal challenges and their effect on operations/military effectiveness: growing or just perceived to be growing?

· The growing number of legal challenges faced by the Ministry of Defence is beginning to cause some concern within senior elements of the armed forces, a concern that is starting to be reflected also in the views of senior non-commissioned ranks. This concern arises from many causes. These include a lack of apparent clarity in the legal framework, particularly in current COIN operations where there is a degree of overlap between actions governed by the traditional laws of war and those governed by other forms of law, especially human rights law. Furthermore, some in the armed forces are not convinced that they will necessarily receive the support that they would like from government when operational decisions are being challenged, often years after the event and with the considerable benefit of hindsight.

· These concerns are not generally a problem at the lower tactical level, provided individuals follow their training, but are more apparent at the operational level, where commanders have to weigh up the risks of decisions in highly volatile circumstances, aware that those decisions may subsequently be challenged in a court of law.

· The military faces increasing legal scrutiny, on the one hand through challenges by enemy combatants or others (including detainees and their relatives) using human rights procedures, whilst on the other, through ‘duty of care’ lawsuits, for example over inadequate body armour or the most effective protective vehicles. This increased scrutiny may have an impact on the calculations of acceptable risk among Armed Forces personnel, as well as commanders. Such calculations are intrinsically part of effective military operations. There is clearly now a perception within the Armed Forces that the increased legal scrutiny, both abroad and at home, has inhibited their freedom of action and this, in turn, may contribute to a greater degree of risk aversion in their operational planning.

· In certain respects, this perception may be exaggerated. Human rights law and the law of armed conflict are, for the most part, not incompatible and the armed forces have operated under both legal frameworks for many years without serious problem. However, the nature of current operations is such that increasingly the armed forces are operating in areas where the two legal frameworks overlap in some important ways and where tensions are most likely to be found. This is particularly true with military operations during occupation, as in Iraq, and when intervening on behalf of a foreign government in a non-international armed conflict, as in Afghanistan. The relationship between the law of armed conflict and human rights law in these areas is not entirely clear, particularly in relation to the use of force and also in relation to detention. In these situations, there may be areas both of complementarity and of seeming conflict. Government lawyers, both military and civilian, have been wrestling with the difficulties that this poses for some years and there is little likelihood that the dissonances will be overcome in the near future.

· The succession of cases taken to the European Court of Human Rights in relation to military justice procedures provided something of a turning point in perceptions. In order to avoid any allegation of ‘command influence’, the military hierarchy were advised to distance themselves from criminal cases, leaving individuals accused of crimes carried out in operational conditions feeling unsupported by their military ‘family’. So too, whilst it was recognised that any judicial scrutiny of a military operation or incident would involve senior officers testifying in court, this has now evolved to the point where junior officers, non-commissioned officers and soldiers are increasingly finding themselves giving evidence, often in complex cases.

· Part of the reason for the perception of the increased legal vulnerability of the MoD is that repatriating the bodies of deceased soldiers, as has been the case since the Falklands conflict (where some but not all were repatriated), automatically triggers an inquest, or a similar procedure in Scotland. UK deaths in Iraq and Afghanistan have been subject to this process. This involves coroners, who often have very little military expertise, making public pronouncements on operational matters in ways that are historically unprecedented. The coroner on the Nimrod crash deaths in Afghanistan, for example, effectively said that the Nimrod aircraft had never been safe to fly – a conclusion that would seem to have required a much greater wealth of factual material than was at his disposal.

· There are deep political constraints in addressing these issues directly. It is not necessarily too late from a legal point of view to remove coroners from combat death investigations, although some replacement form of investigation would still be required, but it is virtually impossible from a political point of view, since coroner investigations form one of the three central strands of the military covenant to which all three major parties have now agreed.

· Similarly, the MoD has not invoked the ‘Act of State’ defence in legal cases. This argues that no foreigner can bring a case against a British member of the Armed Services resulting from any overseas operation. It would clarify the legal situation of the Armed Services immediately were it invoked. However, such invocation is almost impossible now to imagine since it would also invite immediate criticism of any government apparently shielding its Armed Forces from legitimate challenge. It would be highly damaging to the image abroad of the UK government, and in the eyes of sections of its own public.

· All of this has helped to create a reactive and defensive default legal and political position within the MoD as it has confronted the legal challenges arising from recent operations.

2. The responsibility of commanders at tactical, operational and political levels

· A clear distinction should be drawn between civil accountability (involving the government) and criminal accountability (as it applies to the individual soldier). There is often an unfortunate difference between soldiers’ and lawyers’ interpretations of ‘combatant immunity’. Lawyers see it as immunity from individual prosecution for acts legitimate under the laws of armed conflict which might otherwise amount to criminal offences; soldiers instinctively but wrongly tend to see it as immunity from any court proceedings.

· A great deal of legal confusion has arisen from the military being seen as some sort of ‘heavily armed police force’ in COIN and related operations. Operations in Kosovo and Afghanistan, in particular, have resulted in procedures becoming established which appear to tie the military to ‘police style’ legal constraints at the tactical level; these are sometimes seen as unworkable. This has created more uncertainty in the matter of the responsibility of commanders. Police operations are usually conducted within a human rights framework which provides greater constraints on the use of force than the traditional law of armed conflict framework. Also there has been a growing tendency to restrict the use of force through Rules of Engagement beyond those restrictions imposed by international law. This is particularly so in Afghanistan where collateral damage that might be acceptable under the law of armed conflict is considered unacceptable on policy grounds.

· At the operational level, difficulties are caused by the differing legal frameworks that cover detention in international armed conflict, non-international armed conflict and operations short of armed conflict. Contrary to some opinions, administrative detention is permissible both under the law of armed conflict and human rights law. Administrative detention was indeed put forward in Afghanistan to the Afghan Government but it would have involved making formal derogations from certain human rights commitments which was considered by some to be politically unacceptable at the time. In addition, it would have involved a substantial commitment by the coalition forces in mentoring those Afghan personnel involved in detention facilities to ensure correct treatment of detainees. There were also differing views amongst the coalition allies as to the nature of the hostilities with some considering that an international armed conflict still existed, some a non-international armed conflict and some that there was no armed conflict at all, merely a law enforcement exercise. This made it difficult to come up with a coherent common policy on detention, and on the transfer of detainees, to be applied by all states involved in operations in Afghanistan.

· At the operational level, NATO’s ‘96 hour detention rule’ caused many difficulties in relation to the detention of suspects in Afghanistan. In conflict situations generally, policies or force structures that risk creating disincentives to the taking of prisoners/detainees are potentially problematic. Nevertheless, the decision to institute a 96 hour detention rule in Afghanistan was essentially a compromise political solution, reflecting the underlying disagreements on the nature of the hostilities. Military commentators also raise the point that it becomes indefensible to place troops’ lives at risk in a complex and dangerous detention operation if suspects are likely to be released 96 hours later.

· This only illustrates that, at the political level, national decisions are often made at the same time as multinational decisions due to the very complex nature of coalition chains of command. Multinational and national decision-makers often have very different legal viewpoints and multiple chains of command naturally lead to the classic ‘same law, different interpretations’ problem. This is not likely to lessen in the future and should be seen as a major concern for law-makers. Internationally, military lawyers tend to work very closely with each other already so that there is a clear understanding of the different legal positions taken within a multi-national force. The problem is that national contradictions are often very difficult or even impossible to reconcile. This aspect of the problem tends not to be a lack of liaison but rather a more serious difference of view in the application of law at the political level and in some cases, additional policy constraints imposed for political reasons.

· The government should be willing to put forward, at an early stage, its legal position on areas in dispute and to justify those positions should they be subsequently challenged. There is a perception in some quarters that too much attention is being given to what human rights bodies might say and that this is preventing clear statements of position. There appears on occasions to be more of an eye to litigation strategy rather than a coherent policy approach.

3. Specific areas such as detention, application of human rights to Armed Forces personnel, extra territorial jurisdiction, RPAS, automated or autonomous weapons and Cyber war

· In all discussions on specific cases it is important to separate those cases that relate to matters arising from the direct conduct of hostilities or detainee treatment, such as allegations of war crimes, from those that deal with policy matters, such as the procurement and issuing of equipment to service personnel. Whilst there is some overlap, essentially each deals with distinct legal issues.

· Soldiers who are deployed on peacekeeping missions always have the legal right to respond in self-defence if they come under sudden attack. However, this is a more restrictive framework than that which would normally be applicable in the conduct of hostilities during an armed conflict. Greater clarity is needed to allow personnel to be better trained in the legal framework of operations, and how this affects their activities, before actually deploying and, as the legal framework is liable to change, whilst deployed.

· Rules of Engagement are critical in all operations but they are a combination of law, policy and military strategy rather than reflecting purely legal considerations. They may be, and usually are, more restrictive than the law itself.

· It should be clear that once R.O.E are issued to soldiers and commanders on the ground, the armed forces should be legally protected as long as they operate within those conditions. As long as R.O.E are adhered to on the ground, legal responsibility should lie with higher command and those who authorised the R.O.E.

· Operations in the cyber domain are also subject to the law, both international and domestic. However, the nature of cyber operations makes it more difficult to apply the law, partly due to issues of attributability. In existing law, there is thus some inevitable uncertainty in some areas, including the role that can be played by civilians as opposed to military cyber operatives. This may change, though not in the immediate future. Nevertheless, the government needs to plan how it is going to handle the legal implications of causing deaths/damage through offensive cyber operations, and for oversight of such operations.

4. Recommendations and Role of the HCDC

· The MoD can no longer continue to deal with legal challenges on a case-by-case basis. This must be recognised as a significant and lasting issue and the MoD should develop a proactive policy to deal with it.

· The SDSR 2015 offers a valuable opportunity to make structural changes in this regard. As the tempo of UK military operations overseas scales down, there is a great opportunity to absorb lessons, improve training and develop a more proactive, rather than reactive, approach to legal issues as the forces move to a more ‘contingent’ posture.

· The volume of international and domestic law is increasing at an ever greater rate. A central objective must be to re-establish the confidence of troops that they will be supported in legal cases where they are involved, and to prevent inappropriate inhibitions being created to good operational decision-making. What is at stake is the UK’s ability to project military power to the greatest possible extent within the appropriate legal framework, and the degree to which we may be compromising soldiers’ ability to deliver on the requirements of that by generating uncertainty.

· Differences in legal opinions between coalition partners are generally easy to anticipate in the planning stages of operations so should form part of that initial planning and should be clarified, and where possible resolved, well before the operations begin. When the basis of an operation is host nation consent, the interplay between the legal systems of the host nation and international /UK law must be agreed from the start.

· Military and civilian lawyers should be encouraged to work as closely and effectively as possible together within the MoD. Each group brings particular expertise to the table and there should be more collaboration, particularly at the senior levels.

· Not enough emphasis is currently placed on building up and maintaining a civilian cadre of legal professionals with expert military knowledge. More should be done to increase this particular form of hybrid expertise inside the MoD.

· The training given to all Armed Forces personnel on legal matters, especially on the treatment of detainees, should be dramatically improved (This was a key recommendation of the Baha Mousa Inquiry report). Consideration should be given to creating better manuals, training exercises and through more integrated planning between military and civilian lawyers. Similarly, the International Law of Armed Conflict should be much more thoroughly taught in Staff College, and the link to ethics reviewed. Whilst linked, these are distinct subjects and there is the danger of confusion. Not everything that is lawful is necessarily ethical and indeed, not everything that is ethical is necessarily lawful. There should be a defined scale along which legal training is given to military personnel of various ranks and legal training for all military personnel needs to be improved and must therefore be protected from any proposed cuts in the SDSR 2015.

· As part of any reforms to the MoD’s treatment of legal issues, it is recommended that the APRE conduct a survey (disaggregated by rank) of soldiers’ opinions on the effect of the law on operations, particularly in relation to their involvement as witnesses in possible civil proceedings (inquests, claims against MOD etc.) and their liability for criminal proceedings.

· This is a process that cannot just involve the MoD. The Foreign and Commonwealth Office and the Attorney General should be involved in all attempts to clarify operational legal guidelines.


March 2014

Prepared 17th March 2014