Annex: Government response
The Government welcomes the Defence Committee's report
and is grateful for its careful analysis of the implications for
the Armed Forces of a wide range of legal developments. It shares
the Committee's view that some of these developments potentially
pose challenges to the ability of the armed forces to carry out
their tasks effectively on behalf of the nation, and that it must
be ready to take effective action to mitigate risks as they materialise.
It hopes to demonstrate in this response that the necessary work
is well under way.
The Committee sets out its high-level conclusions
at the end of its Report (paragraphs 127 to 133). It notes the
unprecedented number of legal cases brought against the Ministry
of Defence in recent years; argues that International Humanitarian
Law is the appropriate body of law for the regulation of armed
conflict, and that the extension of the jurisprudence based on
the operation of the European Convention on Human Rights into
this sphere is creating a significant, and by implication disproportionate,
burden on the armed forces; and expresses concern at the possibility
of the erosion of the principle of combat immunity. The Committee
goes on to call for a strategic plan to address these issues,
to emphasise the importance of proper training and support for
members of the armed forces who may be faced with the challenges
of litigation, and to stress the importance of opportunity presented
by the next Strategic Defence and Security Review to clarify the
military doctrine and legal framework for defence operations in
the future.
The Government fully agrees with this analysis, which
is consonant with the written evidence which it provided to the
Committee in the course of its enquiry. As to the matter of combat
immunity, it would draw attention to paragraph 26 of that evidence
in which it indicated that it was considering the possibility
of legislation to give a statutory basis to the doctrine of combat
immunity if current litigation results in a significant reduction
of its scope. The relevant cases are likely to be considered by
the High Court in the course of 2015.
The other matters covered in the Committee's conclusions
form the subject of specific recommendations. Recommendations
are not numbered individually in the report: for ease of reference
they have been numbered here. Recommendations 4, 5, 6, 8, 11 and
17 and the Government's responses to them as set out below are
particularly relevant.
1. We recognise that the UK Government has had
a long and honourable involvement in the establishment and continued
application of International Humanitarian Law and human rights
law. The Government should continue to participate actively in
the development of such law to protect civilians and to regulate
the conduct of Armed Conflict. (Paragraph 13)
The Government remains committed to promoting respect
for and compliance with international humanitarian law by all
participants in armed conflicts: it believes this is the best
way to achieve the goal of protecting non-combatants caught up
in conflicts. It also believes that international humanitarian
law provides a coherent and comprehensive legal regime for regulating
armed conflicts. The Government is fully aware of the developing
interface between international humanitarian law and international
human rights law and has articulated its view of how the regimes
apply in armed conflicts in its submissions in the domestic case
of Serdar Mohammed v Ministry of Defence (2014) EWHC 1369 (QB)
and in its observations in the European Court of Human Rights
case of Hassan v the United Kingdom. The Government was
disappointed with the finding in the Serdar Mohammed case
that the ECHR applies to detention operations in Afghanistan and
is seeking leave to appeal; judgment in the Hassan case
is expected later this year. Government lawyers and other officials
from the Ministry of Defence and the Foreign and Commonwealth
Office routinely and actively engage with the International Committee
of the Red Cross (ICRC), other international bodies and other
governments, and the academic community to share ideas and to
influence thinking on the development of international humanitarian
law. The UK Manual on the Law of Armed Conflict is one of the
most highly regarded and widely quoted manuals in this field.
2. We have found no evidence that adversaries
of the UK are deliberately misusing UK and international law by
bringing cases under human rights law to undermine military operations.
However, we are concerned about the forced use of civilians as
shields by insurgents strategically exploiting the restraint shown
by UK and other Forces mindful of the need for humanitarian respect
for civilians and of their legal obligations. (Paragraph 17)
It is unfortunately true that our adversaries too
often show little or no respect for the lives even of their own
compatriots. British forces will continue to seek effective ways
of meeting their objectives without compromising on their humanitarian
obligations.
Growing legal challenges-the problem
3. The increasing number of legal actions being
brought against the MoD about the conduct of military operations
by the Armed Forces raises a range of questions about the legal
context of operations. The UK Government needs to take account
of the tension between International Humanitarian Law and human
rights law with reference to the nature of conflicts. The Government
also needs to consider the implications of what is expected to
be the continuing practice of conducting operations in coalition
with international partners when determining the legal framework
of operations. (Paragraph 29)
The MOD recognises that UK Armed Forces will continue
to work in coalition with international partners. Whether the
Armed Forces operate independently or as part of a coalition,
the requirement to comply with UK law and defence policy and the
values and standards of the Armed Forces remains the same. Up-to-date
education and training will ensure that the Armed Forces are aware
of and apply the UK Government's interpretation of international
law when acting in a coalition.
4. There is a concern amongst Armed Forces personnel
that they and their legitimate actions are frequently exposed
to extensive legal scrutiny in coroners' courts, public inquiries
and cases brought under human rights law. The MoD should identify
the extent of and concern about legal developments amongst Armed
Forces personnel at all levels to identify the impact on their
operational effectiveness and, in particular, the willingness
of personnel to accept responsibility and take necessary risks.
We recommend that, in order to identify the extent of the concern,
the MoD ask for the Army Personnel Research Establishment to include
a section on the subject in its next survey. When the MoD has
identified the concerns, it should take steps to provide Armed
Forces personnel with appropriate assurances and adequate training
to illustrate where personnel are not personally liable. It should
also offer its support when Armed Forces personnel come before
the courts to testify in coroners and other courts where the MoD
is being challenged. The MoD should also inform Armed Forces personnel
of what it is doing to tackle the difficult legal challenges it
faces. (Paragraph 37)
The Ministry of Defence has carefully noted the Committee's
interest in research gauging the impact of legal development on
Service personnel operational effectiveness and willingness to
accept responsibility and to take risks. It is currently reviewing
the questions for the 2015 Armed Forces Continuous Attitudes Survey.
The values and standards of the Armed Forces, enforced
where necessary through the Service Justice System, require the
highest standards of conduct even in the most difficult circumstances.
All Armed Forces personnel receive comprehensive training on operational
law and have access to appropriate legal advice. This training
is regularly reviewed to ensure it is current and the advice available
includes guidance on the circumstances when they might be personally
liable for their actions. One of the aims behind the training
is to reassure, as well as educate, so that Armed Forces personnel
feel confident to make necessary and often difficult decisions
when required. Rules of Engagement and other operational guidance
are drafted to ensure that all relevant legal considerations,
not just international humanitarian law, and including human rights
obligations, are taken fully into account when planning and executing
operations. Members of the Armed Forces who comply with this guidance
and who take difficult operational decisions in the course of
combat operations, which require a number of competing interests
to be balanced, can have a high degree of confidence that they
will not incur personal liability. They will also not be at risk
of personal liability for actions committed in the course of their
duty in civil cases, including human rights claims. It is however
right that in those - very rare - instances where personnel blatantly
disregard the law and undermine the mission they should be dealt
with through disciplinary or other appropriate measures.
MOD recognises a duty of care to current and former
staff, military and civilian, who may act as witnesses to legal
proceedings or face legal proceedings (or the possibility of them) as
a result of actions taken in the course of their duties. This extends
to providing independent legal advice if appropriate. Departmental
policies, published by the Directorate of Judicial Engagement
Policy (DJEP), on the support available are published in extant
Defence Instructions and Notices. DJEP also takes the lead in
contacting those who may be affected by proceedings in order to
keep them abreast of developments and the support available, while
the Defence Inquests Unit, a part of DJEP, provides support both
for families and comrades in inquests on members of the Armed
Forces.
Support for those acting as witnesses includes providing
familiarisation with the requirements of the relevant proceedings
and the arrangement and funding of transport and accommodation
in order to attend hearings. Where appropriate, MOD will also
make or facilitate claims for appropriate adjustments (e.g. anonymity
or screening) to protect witnesses' identities.
Where current or former staff require help in accessing
documents in order to provide investigators with an informed account
of events MOD will provide assistance.
Personal support for serving military staff who may
be under stress due to demands of supporting legal proceedings is
provided by the Chain of Command, drawing on service padres and
other resources. For former or retired staff the main source of
personal support is provided by veterans' associations and service
charities. DJEP plays a role in identifying potential vulnerable
witnesses as proceedings progress and referring them to appropriate
support organisations.
The Ministry of Defence agrees that this task is
of great importance, and it is carried out in a number of ways.
A recent example is the letter sent by the Chief of the Defence
Staff to the chain of command on the implications of the High
Court judgment in the Serdar Mohammed case. Important legal
developments are also briefed on the home page of the DII communications
system which is used by the vast majority of service personnel
and are reflected in training courses provided by the Defence
Academy.
5. There are clearly a number of legal challenges
facing the MoD and the Armed Forces as a result of recent legal
cases and developments. Views as to the extent of these challenges
differ but no one doubts that they exist. These challenges should
be addressed head on and in a strategic manner rather than on
a case by case basis. (Paragraph 43)
The Ministry of Defence will defend cases brought
against it robustly wherever that is appropriate. It actively
reviews the range of operational litigation brought against it.
These reviews include the Department's external legal advisors
as well as those interested internal stake-holders: in particular,
DJEP (see response at paragraph 4), the Operations Directorate,
and the Department's Central Legal Services work closely together
to ensure that a coherent approach is adopted. Such reviews help
to ensure that the links between cases are recognised and addressed
and to ensure that the Department can indeed take a strategic
approach in developing its responses.
6. In the light of the many recent cases challenging
aspects of military operations, and as part of the lessons learned
from operations in Iraq and Afghanistan, we believe that the time
is right for the Government to reassess the current legal framework
for military operations and to develop its response to the many
legal challenges in a more strategic way. Recognising the changing
nature of conflicts, legality, ethics and the importance of the
media, the resulting questions should be considered as part of
the next Strategic Defence and Security Review. (Paragraph 46)
As stated in its response at paragraph 1, the Government
remains of the view that international humanitarian law provides
a coherent and comprehensive legal regime for regulating armed
conflicts. Nonetheless the Government has not ruled out legislating
in the future to provide further clarity for members of the Armed
Forces should it consider it necessary to do so.
The next Strategic Defence and Security Review (SDSR)
will consider the societal trends that impact upon the effectiveness
of our armed forces out to 2035. Over the past 25 years,
the legal, political and cultural changes in society have impacted
on the Armed Forces and Defence in general evidenced by a curtailment
in the Royal Prerogative powers relating to defence, the reduction
in the number of exemptions for the Armed Forces in legislation
and particular the repeal of Section 10 of the Crown Proceedings
Act. This has all happened in a period which has seen the
transition from a standing force configured to fight a war of
national survival to one heavily involved in counter-insurgency
operations. Some of the legal changes including the ratification
of certain Weapons Treaties have had some effect on military operations,
although there is as yet no consensus on the extent of those effects
in the long term. Understanding from a strategic perspective how
such trends will further manifest themselves is crucial to maintaining
the effectiveness of our Armed Forces and ultimately our national
security. The MOD's Development, Concepts and Doctrine Centre
(DCDC) considers these types of societal trends out to 2045 in
its 'Global Strategic Trends' publication and this will
form part of the evidence base for the SDSR. Learning the
lessons from the long engagements in Iraq and Afghanistan is of
course equally important. With a continued high level of uncertainty
in the future strategic context, the forthcoming SDSR allows an
opportunity to take stock of the constraints and opportunities
associated with the evolving legal framework.
Human Rights Law and International Humanitarian
Law
7. The number of legal challenges facing the MoD
in respect of human rights law is large, uncertain and growing.
We recognise that there is nothing the MoD can do to prevent these
existing cases but we recommend it should fight each of them vigorously.
We will cover possible future arrangements including legislation
and procedural changes later in this Report. The MoD should inform
us of the size and costs of the legal challenges it is facing
in regard to the challenges from people in Iraq and Afghanistan
on human rights grounds. It should also set out the arrangements
it has introduced for carrying out the required inquiries akin
to Coroners' inquests on those people who died in Iraq as a result
of the actions of the UK Armed Forces. (Paragraph 65)
The Ministry of Defence defends cases brought against
it, including human rights challenges, robustly wherever it considers
them ill-founded. For example the Government has strongly argued
that the European Convention on Human Rights has no application
to operations in Afghanistan, and intends to appeal against the
recent judgment of the High Court in the case of Serdar Mohammed
which indicates otherwise. It has also sought to limit the
application of the ECHR to Iraq operations: the High Court will
hold preliminary issues hearings in a number of cases arising
from the Iraq conflict in the autumn which are expected to rule
on these issues. It is also fully committed to defending the civil
cases being brought against it which it considers to infringe
the principle of combat immunity, under which damages cannot be
claimed for alleged breaches of duty of care in respect of events
occurring in the course of combat.
To date there have been two public inquiries, over
two hundred Judicial Reviews and over a thousand damages claims
made against the Department on human rights grounds as a result
of operations in Iraq and Afghanistan. The cost of these legal
challenges is of the order of £85 million to date. Over half
of this cost relates to the two Public Inquiries, the Baha Mousa
Inquiry (£24.9 million) and the Al-Sweady Inquiry (£28.4
million to date). The balance relates mainly to damages and legal
costs paid, the vast majority being for Iraq cases.
It is very common for actions brought under the Human
Rights Act to be linked with other types of legal action, but
we have included all costs arising from such actions in this response.
The Divisional Court ordered the Secretary of State
for Defence to establish inquisitorial inquiries modelled on coronial
inquests in order to ascertain the circumstances that led to the
deaths of a number of Iraqi citizens where the Secretary of State
accepted that an obligation under Article 2 to investigate those
deaths has arisen. The Court directed that such inquiries, which
the MOD has termed Fatality Investigations to avoid confusion
with public inquiries or inquests, should be set in hand as soon
as it is clear there will be no prosecution of those alleged to
have been involved in those deaths. In the cases of Nadhem Abdullah
who died on 11 May 2003 and Hassan Abbad Said who died on 2 August
2003 where there was no outstanding avenue of prosecution, the
Court directed that those Fatality Investigations should commence
as soon as practicably possible.
To date, the cases of Mr Abdullah and Mr Said are
the only two cases which will definitely be the subjects of a
Fatality Investigation, but the Secretary of State currently considers
that Fatality Investigations will need to be held in a further
nine cases. This number will be kept under review. Fatality Investigations
in the remaining cases will follow as quickly as possible once
it is clear that the Service Prosecution Authority will not direct
that any person be charged in connection with the death (upon
receipt of the referred case by the Iraq Historic Allegations
Team (IHAT) or the service police).
The Secretary of State has appointed Sir George Newman
to conduct the Fatality Investigations into the deaths of Mr Abdullah
and Mr Said. These have been established as non-statutory inquiries.
Sir George is required to examine the actions of the British soldiers
involved in order to establish the circumstances in which the
deaths occurred and the accountability, if any, of the State for
the actions of the soldiers. He is not concerned to determine
or to consider any person's criminal or civil liability. Sir George
is assisted by two barristers and has been provided with offices
at Horse Guards.
Sir George has published on the internet information
relating to the two Fatality Investigations that he is chairing.[1]
He is currently considering approximately 10,000 documents comprising
a record of previous investigations and reports in connection
with the cases of Mr Abdullah and Mr Said. He has embarked upon
the work of drawing up lists of witnesses and has started planning
the timing, listing and arrangements for the taking of evidence
from witnesses, including the witnesses from Iraq. While he intends
to hear some witnesses in public, he does not currently expect
to take all witness evidence at a public hearing. The public hearings
will take place at the Inner London Crown Court.
The Divisional Court held that the Chairman in these
Fatality Investigations must have the ability to compel persons
who might be able to provide relevant evidence and who will not
attend voluntarily to give evidence. Sir George intends to use
where necessary the procedure provided for under the Civil Procedure
Rules.
8. The MOD should identify the lessons from the
legal issues arising in Iraq and Afghanistan and ensure that in
all future operational deployments, the Armed Forces are clear
about the legal position of the deployment and that all measures
have been taken to ensure that they will not be open to legal
challenge. (paragraph 66)
Comprehensive advice on the legal arrangements applicable
to any deployment is available to commanders and deployed members
of the Armed Forces. The precise nature of the legal regime will
depend upon a number of factors including the legal basis for
the deployment. Rules of Engagement and other operational orders
are drafted to reflect the legal regime applicable. Suitably trained
and experienced legal advisors deploy with commanders and their
staffs and if necessary they have access to further legal advice
through Joint Forces Command, the Ministry of Defence and across
Whitehall.
9. Baha Mousa's treatment and subsequent death
in detention was an horrific example of a few Armed Forces personnel
behaving inhumanely and illegally. It is obviously right in such
cases that individuals and the Armed Forces should feel the weight
of the law. In its response, the MoD should detail how it is addressing
the recommendations from the Baha Mousa Inquiry and the progress
made to date in the implementation of these recommendations. (Paragraph
67)
The Minister for the Armed Forces reported the progress
made by the MOD in implementing the recommendations of the Baha
Mousa Report in a Written Ministerial Statement on 27 March 2014.
Of the 73 recommendations, 72 were accepted, including one which
invited the MOD to consider changes to the arrangements for inspecting
Afghan detention facilities. The 27 March Statement announced
the decision, after careful consideration, not to make the changes
in question, and confirmed that all the other 71 recommendations
had now been implemented.
10. We await with interest the results of the
Government's work on the reform of legal aid. The MoD should inform
us how any such reform will impact on the legal challenges it
faces. The Government should also tell us of its intentions to
limit the use of judicial review in respect of military operations.
(Paragraph 70)
The Government believes that individuals should in
principle have a strong connection to the UK in order to benefit
from the civil legal aid scheme. Having consulted on these proposals,
the Government has decided to introduce a residence test that
will require individuals to be lawfully resident in the UK, Crown
Dependencies or British Overseas Territories at the time of applying
for civil legal aid and to have been lawfully resident for a continuous
period of 12 months in the past. The Government believes that
this is a fair and appropriate way to demonstrate such a strong
connection. In certain circumstances, however, the Government
recognises that it would be appropriate to provide for specific
exceptions to the residence test - such as for asylum seekers
and members of the Armed Forces, as well as for certain cases
under the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO) which broadly relate to an individual's liberty,
where the individual is particularly vulnerable or where the case
relates to the protection of children. Anyone excluded by the
residence test would be entitled to apply for exceptional funding
which enables funding to be granted where the statutory tests
set out in section 10 to LASPO are met. The scheme ensures the
protection of an individual's rights to legal aid under the European
Convention on Human Rights or EU law.
The Government also considers that limited legal
aid resources should be properly targeted at those judicial review
cases where they are needed most if the legal aid system is to
command public confidence and credibility. The Government has
therefore amended the Civil Legal Aid (Remuneration) Regulations
2013, to implement the proposal that legal aid providers should
only be paid for work carried out on an application for permission
if permission is granted by the court, subject to a discretion
to pay providers for work carried out on an application for permission
in cases that conclude prior to a decision on permission.
The Ministry of Defence did, in its written evidence
to the Committee, express concern that cases which might more
appropriately have been dealt with as personal injury claims had
been proceeded with by way of judicial review. It is however a
matter for the court to determine whether a claim for judicial
review should or should not be granted. The Ministry of Justice's
reforms to the legal aid system will however be likely to have
an effect in reducing public funding in less meritorious cases.
11. The UK Government should participate in appropriate
international work to strengthen International Humanitarian Law
and in particular should be more actively involved in the ICRC
consultations on detention in non-international armed conflict
and on strengthening compliance with IHL (paragraph 74)
The Government has been actively involved in a range
of initiatives aimed at strengthening international humanitarian
law. Representatives of the Ministry of Defence and Foreign and
Commonwealth Office have been heavily engaged in working with
the ICRC and other states, both privately and in the working groups
held in Montreux in December 2012 and Geneva in January 2014,
on the current process to strengthen the law relating to detention
in non-international armed conflicts. This work builds on the
Copenhagen Process in which the United Kingdom was also actively
involved. The United Kingdom's Joint Doctrine Publication 1-10,
Captured Persons, is widely regarded as a leading text in this
area to which other states have regard. The International Institute
of Humanitarian Law at Sanremo, Italy, is a world-renowned centre
for the instruction of military and civilian officials in International
Humanitarian Law. The Director of the Military Department is a
Colonel in the Army Legal Services and military and civilian lawyers
regularly attend its courses as both lecturers and students.
Representatives of the Ministry of Defence and Foreign
and Commonwealth Office have also been engaged in working with
the Swiss government, the ICRC, and other states, both privately
and in the working groups held in Geneva since 2012, on the current
process to strengthen international humanitarian law. The Government
sees merit in developing a forum for states to discuss topical
matters of international humanitarian law and believes that the
proposal for states to report on their own implementation of such
law will lead to better understanding of and respect for the law.
The Government is committed to working for a constructive outcome
to this process and will be attending the meeting of states in
Geneva on 30 June and 1 July 2014.
12. We are concerned about the implications of
the Supreme Court judgment in June 2013 in the Smith case for
the principle of combat immunity. We recognise that the judgment
appeared to limit the scope of the cases to the 'middle ground'
between the policy and the conduct of the armed conflicts. However,
we believe that this may still open up decisions, taken in situations
of intense armed conflict where commanders are forced to make
the best judgments they can, to examination by the Courts. (Paragraph
86)
The full implications of the Supreme Court decision
not to strike out the claims in Smith & Others v Ministry
of Defence will need to be tested as that case and others
which involve the doctrine of combat immunity proceed to trial.
The MOD shares the Committee's view on the importance of the principles
involved and despite its sympathy with the claimants in the losses
of their loved ones it must continue to contest these cases vigorously.
Possible ways forward
13. We are not in a position to determine which
of these solutions, if any, would help the Government resolve
the sense that the law is adversely impacting on operational effectiveness.
However, we are strongly of the opinion that the Government should
think of these issues strategically and start to determine long-term
solutions now to enable the Armed Forces to conduct armed conflict
certain in the knowledge of which laws apply and how their military
judgments are likely to be challenged in the future. We are also
aware that some of the areas to be pursued may have reputational
risks for the UK, but that this should not allow the Government
to duck the difficult issues. (Paragraph 96)
The Government would refer the Committee to its response
at paragraph 6.
14. The Government should bear in mind that whichever
solutions it adopts for the Armed Forces and military operations,
there are likely to be implications for FCO, DFID, Stabilisation
Unit and Home Office activities in post-conflict stabilisation
and peacekeeping operations. The approach taken by the Government
and the MoD must be appropriate and applicable to them where relevant.
(Paragraph 97)
Again, the government would refer the committee to
its response at paragraph 6. Consideration of these questions
in the Strategic Defence and Security Review will ensure that
the perspectives and needs of all relevant Departments will be
fully taken into account.
New developments
15. Given the MoD's stated intention to develop
a cyber warfare capability, we are pleased to note that the UK
Government is talking with ICRC on the legal and humanitarian
implications of cyber warfare. We noted in our recent Report on
deterrence that difficulty in identifying the perpetrator of a
cyber attack brought into question the legality of a response
to such an attack. The MoD should inform us of its work in determining
the legal framework of possible cyber operations and its plans
to incorporate such work into training of personnel and the preparation
of appropriate manuals. (Paragraph 101)
The Government believes that the use of cyber activities
in armed conflict is appropriately regulated by international
humanitarian law. Difficult issues will arise when considering
whether cyber attacks can be attributed to any particular party
and when assessing the collateral effect of any actions: these
however remain fundamentally questions of fact and do not reflect
any inadequacy in the applicable legal regime. The Government
continues to discuss cyber operations with other states in order
to develop a coherent approach to this activity. UK Lawyers were
actively engaged in drafting the Tallinn Manual on the International
Law Applicable to Cyber Warfare.
16. The MoD should prepare the legal framework
for new forms of weapons or conflict at the start of their development.
We welcome the MoD's assurance that no planned weapons system
will be able to attack a target without the involvement of a human
being. The MoD should think through the legal and moral consequences
of new forms of conflict and developments in new weapons systems.
This work should start immediately in parallel with work in progress
to develop new capabilities in particular in the cyber field and
in autonomous weapons. We seek assurance from the MoD that such
consideration has already begun in respect of autonomous weapons
and indeed for highly evolved automated weapons. (Paragraph 108)
The Ministry of Defence conducts legal reviews of
all new weapons and methods of warfare before they are brought
into service in accordance with its obligations under Article
36 of the First Additional Protocol to the Geneva Conventions.
Where appropriate, these reviews can be and are carried out at
the early stages of development, including the conceptual stage,
of any new weapon or method of warfare. Where necessary, reviews
can be quickly undertaken in response to urgent operational requirements.
The MOD can give the Committee the assurance it seeks
that consideration of the legal and moral implications of autonomous
weapons and highly-automated weapons systems has been undertaken.
This includes fullest participation in ongoing discussions on
autonomous weapons systems under the UN Convention on Certain
Conventional Weapons in Geneva. Current UK policy is that the
operation of weapon systems will always be under human control
and that no planned offensive systems are to have the capability
to prosecute targets without human involvement. By retaining highly-trained
and qualified aircrew at the heart of the decision making process,
the UK ensures that the legal requirements governing the use of
force during armed conflicts are observed. There are no plans
to replace military pilots with fully autonomous systems.
Practical questions for the Armed Forces
17. We support the ICRC view that the UK should
assist other states by providing technical advice and capacity
building in International Humanitarian Law. This work should form
part of the planned capacity building by the Armed Forces. The
UK Government should participate in appropriate international
work to strengthen International Humanitarian Law and, in particular,
should continue to be actively involved in the ICRC to strengthen
IHL. We also support the view that the UK should take proactive
steps to reconfirm the primacy, continued value and distinct nature
of IHL. (Paragraph 112)
As noted in its response at paragraph 11, the Government
is committed to participating in work to strengthen and promote
international humanitarian law. Members of the Armed Forces do
provide training on international humanitarian law to other nations
in a range of fora, and this is regarded as an important task
which contributes to strengthening the protection available to
civilians caught up in conflicts.
18. The MoD and the Armed Forces should re-examine
their legal training for all ranks in the Armed Forces to ensure
that it is as up to date as possible and is consistent with the
latest cases. It should also clarify and detail where Armed Forces
personnel have personal liability and where they do not. (Paragraph
117)
This is covered in the response at paragraph 4.
19. An understanding of the underpinning doctrine
of the Law of Armed Conflict is crucial to the Armed Forces. The
consequent manuals are important tools in ensuring that the Armed
Forces act within the law. They provide clarity and a measure
of certainty. The MoD should update the UK Manual on the Law of
Armed Conflict and ensure that it is fully maintained in future.
(Paragraph 120)
The Manual on the Law of Armed Conflict has been
reviewed and amended since its production; the MOD is actively
considering whether there is a need for a new edition and has
carefully noted the Committee's interest.
20. The MoD should review its arrangements for
providing legal advice and guidance to the Armed Forces to ensure
it has the best available knowledge, expertise and experience—both
legal and military. It should ensure that the civilian and military
lawyers work together to best effect; if necessary, it should
change the arrangements and structures for the provision of legal
advice to the individual Services and to the MoD to ensure this
happens. (Paragraph 124)
Military and civilian lawyers from a range of Government
departments already work closely together to ensure that legal
advice, particularly on operational matters, is accurate, pragmatic
and consistent. The operational and international humanitarian
law team in the Ministry of Defence's Central Legal Services works
particularly closely with the civilian and military lawyers in
Permanent Joint Headquarters and deployed lawyers. As the report
notes, both civilian and military lawyers bring particular expertise
and the best legal advice will draw on all sources of expertise.
The Head of Central Legal Services regularly meets with the Heads
of the Service legal branches to discuss matters of common interest.
As indicated in the response at paragraph 8, legal advisers are
integrated into deployed commanders' staffs and can reach back
to higher headquarters and Government. Ministry of Defence and
Foreign and Commonwealth Office lawyers also work closely together
on matters of common interest, involving the Law Officers as appropriate.
21. The media is an increasingly important player
in armed conflicts. It can and has been exploited by the UK's
adversaries and will increasingly be so in the future. The MoD
should ensure that it has an effective media strategy in place
to deal with accusations of war crimes and violations of International
Humanitarian Law. (Paragraph 126)
The MOD's primary focus is to prevent any such incidents.
But recent developments in the Al-Sweady public inquiry have demonstrated
again the very real problem of false accusations, which in this
case were highlighted in MOD's submissions to the Inquiry. MOD
will continue to resist false accusations, whether in inquiries
or in other legal proceedings such as personal injury claims.
The Department will continue to seek to make clear to the media
and the public both the severe view it takes of violations and
its determination to protect staff against false accusations.
1 http://www.iraq-judicial-investigations.org/ Back
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