UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from Air Commodore (Retd) Bill Boothby, Doktor Iuris, former Deputy Director of Legal Services (RAF)

Author: Weapons and the Law of Armed Conflict (2009); The Law of Targeting (2012); Conflict law: Thoughts on some Contemporary Legal Issues (forthcoming 2014).

I will address each of the topics listed in the TORs in sequence, and briefly. Please advise if greater detail is required.

1. 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

Let us start by considering the position in war, or armed conflict as the law now terms it. The core legal obligation in all armed conflicts applies equally to regulars and reservists, to UK only and coalition operations and in UK and abroad. It is to comply with applicable law in the conduct of all military operations. The context of the military deployment will determine which body of law applies. Armed conflict is regulated by a set of rules designed to maintain a distinction between persons and objects involved in the conflict, which may be attacked, and those that are not so involved that may not. Indiscriminate attacks are prohibited. The most important rules regulating the conduct of hostilities require that only enemy members of the armed forces, objects that contribute effectively to military action, civilians who are directly participating in the fight and, in the case of an armed conflict within a state, fighters, can be attacked. Particular classes of person and object, for example medical and religious personnel and cultural property, are entitled to specific protections under the law, but the detail of those rules lies beyond the scope of this skeleton submission. There are specific prohibitions and restrictions on the weapons that can be used in warfare. Chemical, biological and poisonous weapons, anti-personnel mines, certain fragmentation weapons and exploding anti-personnel bullets and cluster munitions are, for example, prohibited.

In armed conflicts between states, members of the armed forces are classed by the law as ‘combatants’ and thus have the legal right to take part in the armed conflict. So, provided the international law rules briefly referred to in the previous paragraph are complied with, combatants are immune from prosecution for acts such as killing an enemy soldier which, if undertaken by a civilian, would be murder. In armed conflicts within a state, this combatant immunity does not apply, but members of the armed forces that use force that complies with international law commit no offence.

Members of the armed forces, both regular and reservist, who are put out of the fight, e.g. due to wounds, sickness, capture or surrender, are legally protected from being attacked. If captured, armed forces personnel are prisoners of war with detailed rights set out in the Third Geneva Convention. If they are wounded, sick or shipwrecked, armed forces members are to be respected and protected in accordance with the Geneva Conventions.

Human rights treaties also apply in warfare subject to derogation. Derogation may not be possible where UK is intervening to assist another state, or is involved in certain ‘armed conflicts of choice’. So you can have a situation where a commander is bound by human rights law and the law of armed conflict, and the two bodies of law do not always produce the same results. The law of armed conflict permits the attack of enemy combatants because of their status as combatants. Human rights law protects the right to life and limits lethal force to when it is absolutely necessary, planned, strictly proportionate and complies with other legal rules. The European Court has recently reaffirmed that the right to life implies an obligation to investigate all deprivations of life by state agents, such as the armed forces, subject to certain considerations of practicability, and that this applies during armed conflict (Al Skeini judgment, paragraph 164). This kind of intrusiveness and prescriptiveness may contribute to a feeling that effective conduct of operations is being put in jeopardy by the law.

Uncontroversially, UK armed forces that are not parties to an armed conflict e.g. because they are peacekeepers in a war zone, must obey domestic and human rights law rules in relation to persons within the UK’s jurisdiction, including for example the right to life and must only use lethal force in self-defence. Conversely, members of the UK armed forces also enjoy human rights in circumstances referred to below.

Unfortunately, the treaty law dealing with the conduct of hostilities in armed conflict has not kept pace with technical developments so commanders may find the legal rules within which they must operate less than clear. There is no ad hoc treaty law to regulate a ir to air combat, cyber warfare and new automated and autonomous attack technologies . The treaty rules as to most armed conflict s , namely those within a state, and the treaty rules as to warfare in outer space are sparse . Experts argue that binding customary law rules, derived from the practice of states, fill the gap, but views differ as to what exactly these customary rules provide. The resulting ambiguous legal environment does not help commanders striving to be legally compliant. Ideally, new treaty law would be negotiated on these matters, but such a process might open Pandora’s Box, prejudicing the vitally important legal protections we already have. Experts produce International Manuals to cover some of these gaps, a process that should be applauded as showing how existing law can be applied in the novel circumstances and rendering that law more accessible, but new law can only be made by states and perhaps now is the time for such a process at least to be considered.

Similarly, if deployed to a situation where no armed conflict is taking place, for example to deal with internal tensions, riots, sporadic terrorism and the like, domestic criminal law and human rights law alone will apply.

So the law that applies on deployed operations varies depending on what is going on, and what is going on can change rapidly in time and space. In a situation of sporadic disturbances, the killing by the security forces of an insurgent outside the scope of self-defence is likely to be a crime. If a foreign state intervenes on the side of the insurgents, that situation can rapidly change to international armed conflict in which the use by the security forces of similar lethal force against a fighter of the adverse party is lawful by virtue of the combatant immunity we are discussing. Assiduous monitoring of the developing situation, careful adjustment of rules of engagement accurately to reflect what the law, and evolving policy considerations, allow at any particular moment and proper training and briefing of personnel are among the steps taken to seek to ensure action taken always complies with legal rules that apply to the situation as it then exists.

The core principles in this section apply whether UK forces are operating in UK or abroad and whether alone or in a coalition or alliance. Application of law and disciplinary enforcement are single national responsibilities.

2 The effects of the developing concepts and doctrines of ‘lawfare’ and ‘universal jurisdiction’.

Those involved in recent operations will relate their experiences with practical examples. One familiar challenge is the tendency of our adversaries to use human shields, volunteers or otherwise, unlawfully to shield lawful targets. The intention in doing so is to cause the armed forces of western states to cancel attacks because those whom the law protects have located themselves or have been located near the target, thus rendering the planned attack potentially indiscriminate. Another example would be a tendency of enemy personnel to target persons and objects clearly marked with the Red Cross distinctive emblem. For UK armed forces to respond to such unlawful activities by breaching the legal rules, even where such action is justifiable as a reprisal, would contradict our likely strategic purpose to bring or restore legal respect to the area concerned. We should however insist on repeated media coverage of all such enemy legal breaches to ensure balanced reporting of the conflict and so that the correct legal position is widely understood.

Lawfare, coined by retired Deputy Judge Advocate General of the US Air Force, Charlie Dunlap, refers to the misuse of law as a substitute for traditional military means to achieve an operational objective. Proponents of ‘lawfare’ or ‘legal encirclement’ argue that law and its practice in certain quarters are getting in the way of the efficient conduct of hostilities. There can be no doubt that law has been propelled into the consciousness of military commanders in a way unthinkable two or three decades ago. Military lawyers deploy with commanders to advise on the application of the detailed legal rules summarily referred to in this submission. Media reporting of hostilities frequently comments when law seems to have been broken. Legal proceedings, in which the legality of action taken on operations can be challenged, may take place for example in coroner’s courts, in the High Court on Judicial Review, before the civil and military court systems and in international tribunals such as the International Criminal Court. To a degree, this increasing profile of law reflects trends in wider society. Legal compliance is also important because of its coherence with the strategic objective of recent interventions to bring respect for rule of law to places where that has been lost.

Notions of legal encirclement may, in some minds, also involve some recent applications of domestic, social and rights-based legislation to the armed forces. Some s ocial, national and international legislation and jurisprudence may leave commanders with the feeling that accomplishing the military m ission is being impeded/imperil ed in order to achieve unrealistic levels of political correctness . There is probably, however, a limit to how far the volunteer armed forces can remain exempt from core rights applying to the population at large. The policy of pursuing exemptions only when combat effectiveness so demands would seem to strike a sensible balance. The corollary is that where combat effectiveness does so demand, the exemption should indeed be granted and upheld by all concerned, including the courts.

If the treaty law on the conduct of hostilities has not developed greatly in recent years, the same cannot be said of the law relating to weapons. The adoption and subsequent ratification by the UK of the Ottawa Convention on Anti-Personnel Landmines required the UK armed forces to remove from service certain munitions that, absent ratification, would have remained available for military use. The adoption, and ratification on 4 May 2010 by the UK of the Cluster Munitions Convention also required the UK to dispose of weapons prohibited under that treaty but which fulfilled a clear operational purpose. While the humanitarian arguments in favour of these bans are well understood, our adversaries may not be similarly constrained. When deciding whether to participate in future weapon prohibition s , military requirements must be carefully considered, and capabilities must be replaced satisfactorily before ratification , and disposal of newly prohibited weapons , take place.

Some new weapons technologies arouse controversy. Much research work is currently under way to address the challenges posed in developing autonomous attack technologies. Before the research has achieved maturity, however, Human Rights Watch is already calling for a ban. We must avoid a situation in which the liberal democracies deprive themselves of potentially vital technologies, in this case perhaps a potentially viable way of countering certain mass attack techn iques, while adversaries are not similarly constrained. There is, however, much to be said for internation al engagement by officials to develop joint understandings , particularly with allies and the like-minded, as to how the law applies to emerging technologies and where new legal provision might be required.

Universal jurisdiction applies to war crimes, crimes against humanity and to genocide, and will apply to the crime of aggression when that offence in due course becomes available to International Criminal Court prosecutors. The significance of universal jurisdiction is that perpetrators of these most egregious breaches of the law of armed conflict will find it that much more difficult to escape justice. Ensuring that the law applicable to warfare is enforced, and thus complied with, is a continuing priority that is consistent with the wider policy purpose behind most UK interventions, namely to promote respect for the rule of law. Universal jurisdiction for the crimes committed by foreign war criminals necessarily implies similar arrangements if UK service personnel breach the rules, although the UK military and civil justice systems will promptly investigate cases where legal breaches are suspected and will prosecute and punish where the evidence supports this, thereby usually forestalling reference to international courts.

3 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.

It is convenient here to take together the issue of combat immunity, which is not quite the same thing as ‘combatant immunity’ from prosecution referred to earlier, and the question of the application of human rights law to members of our own armed forces on deployed operations as these twin issues were addressed together relatively recently by the Supreme Court. In very broad terms, the combat immunity principle under English law precludes claims in negligence relating to decisions made in the conduct of combat. The Supreme Court addressed the jurisdiction issue in the light of European Court of Human Rights decisions, and concluded that UK’s human rights jurisdiction requires us to secure the right to life to members of the armed forces when they are serving outside UK territory. (Smith and others, Ellis, Allbutt and others v Ministry of Defence, [2013] UKSC 41, judgment dated 19 June 2013, paragraph 55). The Supreme Court went on to consider planning for and conduct of military operations in armed conflict, and acknowledged that it, the Court, "must avoid imposing positive obligations on the State… .which are unrealistic or disproportionate" but must give effect to those obligations where it would be reasonable to expect the individual service person to have the protection of the right to life.

So decisions relating to procurement of equipment, relating to higher level command of military operations, relating to the exercise of political judgment or policy and decisions by persons actively engaged in contact with the enemy will be easier to exclude from the right to life, and will therefore be less likely to be the subject of legal challenge; (Smith et al, paragraph 76).

Where combat immunity is concerned, the Court has recognised the need to be "especially careful" to consider the public interest, the unpredictable nature of armed conflict and its inevitable risks when striking the balance as to what is fair, just and reasonable; (Smith et al, paragraph 100).

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.

At the international level, i deally, states would come together and sort out in treaty form: the relationship between human rights law and the law of armed conflict, more detailed rules for armed conflicts within a state; and they would have consultations as to their concerns over new weapons technologies and as to whether new law is needed. If new treaty law on the conduct of hostilities can not be arranged, or risks unraveling the law we have, we should support initiatives to develop International Manuals to address gap areas and should be prepared to take the lead in stating our own legal position in terms that recognize our military requirements.

We should update and develop the UK Manual on the Law of Armed Conflict, and should then keep the text updated, devoting adequate annual resource for that specific purpose so that we have a firm basis for training in the subject. This will enable us, and other states, to be clear on where we stand on all relevant issues. National clarity will tend to reduce concerns based on uncertainty . The UK Manual is influential of global thinking on these matters and deserves proper maintenance.

At all levels legal advice in connection with armed conflict hostilities should be given by those with specialist knowledge. This topic should not be regarded as yet another portfolio to add to the CV of a generalist, because the importance of the issues involved and their complexity preclude such an approach. Future operations will be undertaken in an even more legally complex environment, so the requirement for specialist understanding in these subjects is if anything increasing.

Military legal advisers should continue to deploy with commanders at appropriate levels of command, to provide advice at combined operations centres and should advise at departmental level. The UK’s system for the legal review of new weapons should be maintained and should be well-resourced. The UK should be prepared to engage with other nations to develop common understandings as to the legal challenges posed by new technologies. We should resist plans to prohibit technologies whose opportunities and costs have yet to be fully revealed or assessed.

We should maintain exemptions from legislation that would impede combat effectiveness. On human rights-related litigation before domestic, European or other courts, arising from events associated with armed conflict, we should, where appropriate, be prepared to argue vigorously for the primacy of law of armed conflict rules and for court judgments based on operable legal interpretations. Those with experience of law in combat should be closely involved in briefing counsel and in case preparation. We should monitor, and be prepared to intervene either as amicus curiae or otherwise in, litigation addressing issues relevant to combat effectiveness. We should be prepared to make national statements if, e.g., International Courts make decisions that conflict with national legal interpretations. Maintaining our Manual will enable us to comment by reference to our publically stated position.

Our national perspectives, as a state that is frequently involved in military operations, will not necessarily be shared by states that are not similarly involved. We should, however, be prepared to explain our position clearly, and then stick to it and may be surprised how many states will take our lead.

My closing thought is that we have benefited in recent decades from a technological edge over certain adversaries . However, some of the technological and systemic developments that we are seeing in warfare, cyber warfare and the advent of lo osely associated yet highly potent groups like AQ spring to mind , may be expected to challenge and erode that advantage. UK armed forces must continue to strive for the highest standards of legal compliance and the UK should vigorously advocate those standards to others and should actively disseminate them.

1 October 2013