UK Armed Forces Personnel and the Legal Framework For Future Operations

Written Evidence from the General (Rtd) Sir Nick Parker

1. I have been asked to provide written evidence to the Defence Committee in relation to their inquiry into the protections and obligations - ensuring legality and legitimacy - for operational and deployed UK Armed Forces personnel. I am doing this from the very specific perspective of the deployed operational commander, I do not have any legal training and I have not studied the emerging legal landscape in any detail. I would wish to make four broad observations on:

· The relationship the level of acceptable risk and the threat. The application of a single legal framework in a 3 Block War.

· Information and remotely deployed munitions.

· Collective responsibility.

· The disconnect between the operational environment and the courtroom.

2. We have become used to making judgements on the levels of risk that we are prepared to take in relation to a threat which may seem distant to the UK public perception. Whatever the strategic narrative in Iraq and Afghanistan it will not appear to the public as if the territorial integrity of the UK has been threatened. The balance between risk and threat means that judgements on behaviour can stand the luxury of detailed scrutiny from a domestic perspective. If the enemy was at the White Cliffs of Dover the perceptions of the threat by those who were about to be overrun, and level of risk that they expected their forces to take, would be markedly different. Indeed the idea that lives should be put at risk, and that extreme violence should be applied within the bounds of the rules of warfare, would be entirely acceptable politically. In such ‘binary’ conflicts the winner will also be able to justify actions better to a jubilant population that the loser who will be vulnerable to retribution.

3. This Grand Strategic Threat has to provide the backdrop to everything we do, but it will vary. It is safe to assume that in the timeframe that will be directly affected by the 2015 Defence and Security Review the priority will be to consider how to contribute to complex, multi-national, multi-agency security operations. The threat/risk relationship will be fragile (threat down: risk down) and our actions should take this into account. However a professional Defence Force must always be able to operate in the most challenging circumstances, where National survival is the objective and where the boundaries of acceptable behaviour are clearly articulated by the Geneva Convention.

4. Moving from the very highest level of threat to the lowest: The perception of the rifleman at the corner of a building who is being engaged by small arms fire will be that he is in a high intensity conflict! Even though this may be localised (a component in a 3 Block War) it will require very similar behaviours to achieve a successful military outcome as the soldier in a Divisional assault battling for National survival (Threat up: risk down). This riflemen will need to suppress enemy fire, he will need to manoeuvre with the prospect of exposing himself, requiring suppressive fire, and then the enemy's position will have to be neutralised, normally by seizing ground. But to achieve this without risk is impossible, although the risk to our own forces might be minimised by high levels of prophylactic fire this will increase  the risk of civilian casualties and collateral damage is likely to increase. So our troops must be sufficiently empowered to apply force appropriately, they have to be able to manoeuvre in a manner that is consistent with the environment that they are operating within. The concept of Courageous Restraint in Afghanistan potentially put our people at greater risk in order to achieve the consent of local people.

5. Information and Technology are areas where developments have been significant and we have much more to come. We will need to achieve ‘information dominance’ in order to pre-empt and outmanoeuvre our enemy. This will require the management of (Big) data to a level that we have not yet considered. This may well have an impact on civil liberties and could be constrained by a liberal western interpretation. If that is the case it may constrain our command and decision-making systems to a degree that makes information superiority difficult to achieve. At the moment this may only appear to apply at the Strategic (GCHQ) level, but it will soon have an impact at every level in the military chain. Linked to this is our ability to deliver munitions from remote platforms. Again this is an area which will descend down the chain, it will be possible in a networked battlespace for any individual on the network to trigger an attack, based on the threat. Targeting may morph into a more generic requirement for fire control which will require very clear delegation of authority if it is to be effective.

6. The empowered military hierarchy can challenge an interpretation of the law where individuals are held responsible for their actions. Military effect is almost always delivered by a combination of capabilities and, within those capabilities by teams who are given orders down a chain. In a combat arm the military capability is often represented by a fire team (of 4 under a JNCO) or a tank crew. In contemporary operations it is increasingly easy to scrutinise an individual’s actions and to make deductions on the appropriateness of behaviour without taking account of the orders that have been given. There is a risk that while the full legal consequence of an action can be thrown at the individual, that is not the case for those who have collective responsibility for the employment of capability. Individuals do need to retain some protection for acting within orders.

7. And lastly there is a real risk that future legal examination of an individual’s action, which takes place in the sterilised environment of a court room, far away from the front line and with the benefit of hindsight, fails to appreciate the requirement to take action under extreme pressure and with no time to spare. The application of UK domestic law to a counter insurgency situation in a place where the culture, geography and value of life may be entirely different to that at home, must be delivered with extreme care.

November 2013

Prepared 4th December 2013