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Drawing a line: Protecting veterans by a Statute of Limitations Contents

2The Law Governing Armed Conflict

Introduction

14.Like all citizens, Armed Forces personnel are subject to the law. However, defining what that law is has become increasingly complex. This is particularly true in joint operations, such as those in Iraq and Afghanistan, where a number of legal systems are in play. Afghanistan, for example, was underpinned by a UN Mandate and evolved from an international conflict between a US-led coalition and Afghanistan into a non-international armed conflict between NATO/Afghanistan and the Taliban (then a non-state actor).8

Figure 1: The different laws applying to military operations

Source: Ministry of Defence, Legal Support to Joint Operations, Joint Doctrine Publication 3–46

Service Law

15.All Service personnel must comply with Service law when on operations. This means that they must not only comply with the criminal law of England and Wales, but also with high standards of behaviour which are distinctive to the Armed Forces. For example, as the Manual of Service Law highlights, “failing to attend for duty and ill-treatment of subordinates, are subject to the same procedures and the same sort of penalties as criminal offences”.9 The Armed Forces Act 2006 replaced the separate systems that had applied for the three principal Services with a single system governing all members of the Armed Forces.

16.Offences are split into two categories: discipline offences and criminal conduct offences. Discipline offences include:

17.The military offence of criminal conduct covers anything done, anywhere in the world, that if done in England and Wales, would be against the civilian criminal law. Depending on their category, offences can either be dealt with by a Commanding Officer at a summary hearing or tried by a Court Martial.10

International Humanitarian Law/the Law of Armed Conflict

18.In addition to Service Law, personnel are subject to the Law of Armed Conflict (LOAC), also known as International Humanitarian Law (IHL). As our predecessor Committee explained in its 2014 report, “IHL was developed to regulate the conduct of parties to an armed conflict”.11

19.According to the 2004 edition of the Joint Service Manual of the Law of Armed Conflict, the main purpose of LOAC “is to protect combatants and non-combatants from unnecessary suffering and to safeguard the fundamental human rights of persons who are not, or are no longer, taking part in the conflict”.12

20.This law was traditionally built on two streams of IHL: the first, ‘Hague Law’, was “largely concerned with how military operations are conducted”, and the second, ‘Geneva Law’, was “concerned with the protection of the victims of armed conflict”. While, as the Joint Service Manual explains, these two streams have now merged into one corpus of law, “there is still a distinction between the law relating to armed conflicts between states, known as international armed conflicts, and armed conflicts within the territory of state, known as internal (or non-international) armed conflicts”.

21.LOAC is binding on states, but also regulates the conduct of individuals and “the decisions in hundreds of war crimes trials conducted after the Second World War have reinforced the principle of individual criminal responsibility of members of the Armed Forces or others who violate the law of armed conflict”.13

22.LOAC’s sources can be found in customary law, that is rules developed from the practice of states and which are binding on states generally, and treaty law, that is rules expressly agreed by states in international treaties and which are only binding on states party to those treaties.14

23.Key pillars of LOAC include the Rome Statute on the International Criminal Court, the Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1864, 1906, 1929 and 1949. In 1949, four new Geneva Conventions revised the previous Geneva Law and provided for the protection of:

a)the wounded and the sick;

b)the wounded, sick and shipwrecked at sea;

c)prisoners of war; and

d)civilians.15

24.In 1977, two Protocols Additional to the Geneva Conventions of 1949 were adopted. Additional Protocol I (AP1) relates to international armed conflicts, with Additional Protocol II (AP2) focusing on non-international armed conflicts:

According to the ICRC, taken together, the additional protocols “say that civilians must be spared the worst effects of conflict. They represent a milestone in the long history of efforts by the ICRC and the international community to secure greater protection [for civilians]”.18

25.As the Joint Service Manual makes clear, all four Geneva conventions apply in any international armed conflict, regardless of whether war is declared or not or if one of the parties does not recognise the existence of a state of war, and if there is a “partial or total occupation of another state’s territory, even if the occupation has met with no armed resistance”.

26.These conventions are of virtually universal application, embodying customary law, and therefore apply to internal, as well as international, armed conflicts, as well as establishing an express obligation on states to bring to justice individuals who commit certain war crimes.19

27.Four key principles underpin LOAC:

a)Military necessity – “a state engaged in an armed conflict is permitted to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict”. This principle contains four basic elements:

i)the force used can be and is being controlled;

ii)since military necessity permits the use of force only if it is ‘not otherwise prohibited by the law of armed conflict’, necessity cannot excuse a departure from that law;

iii)the use of force in ways which are not otherwise prohibited is legitimate if it is necessary to achieve, as quickly as possible, the complete or partial submission of the enemy;

iv)conversely, the use of force which is not necessary is unlawful, since it involves wanton killing or destruction.

b)Humanity - forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes

c)Distinction - separates combatants from non-combatants and legitimate military targets from civilian objects

d)Proportionality - requires that the losses resulting from a military action should not be excessive in relation to the expected military advantage.20

28.The International Committee of the Red Cross (ICRC) plays a key role under LOAC as a controlling authority. It has an express mandate under the Geneva Conventions to protect victims of international and internal armed conflict and to monitor compliance with the Conventions by warring parties.

29.The ICRC told our predecessor Committee in 2014 that LOAC “had withstood the test of time as a realistic body of law that finds a balance between military necessity and humanity”.21

International Human Rights Law

30.International human rights law (IHRL) now forms an important part of the law regulating the Armed Forces, a result of a number of key rulings extending the territorial applicability of the European Convention on Human Rights (ECHR). The ECHR has direct effect in the UK as a result of the Human Rights Act 1998 (the HRA) and enables individuals to sue in UK courts for a breach of Convention rights.

31.Of particular note is the judgement of the European Court of Human Rights (ECtHR) in the case of Al-Skeini v United Kingdom (2011). In this judgement, concerned with the deaths of six Iraqis, the ECtHR held that:

in the exceptional circumstances deriving from the United Kingdom’s assumption of authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004, the United Kingdom had jurisdiction under Article 1 (obligation to respect human rights) of the Convention in respect of civilians killed during security operations carried out by UK soldiers in Basra.

The ECtHR further ruled that there had been a failure to conduct an independent and effective investigation into these deaths, in violation of Article 2 of ECHR.22

32.As a result of this ruling, Professor Richard Ekins, Dr Jonathan Morgan and Tom Tugendhat MP argued in their 2015 paper Clearing the Fog of Law that the British Armed Forces had become vulnerable to prosecution under the Human Rights Act and the ECHR.23 They maintain that it was this judgement which “above all else” resulted in the “juridification of the Armed Forces”.24

33.According to the Rt Hon Jack Straw, who as Home Secretary steered the HRA through Parliament, “to the very best of my recollection it was never anticipated that the Human Rights Act would operate in such a way as directly to affect the activities of UK forces in theatres abroad”, and had such a prospect been in play, “there would have been a very high level of opposition to its passage, on both sides, and in both Houses”.25

IHL versus IHRL - two systems in conflict?

34.Our predecessor Committee in 2014 found that the “tension and overlap” between IHL and IHRL had “resulted in a lack of certainty and clarity” and recommended that the Government “should work to ensure that IHL is the body of law regulating conduct of armed conflicts with primacy over human rights law”.26

35.Similar conclusions were reached by Professor Ekins, Dr Jonathan Morgan and Tom Tugendhat MP in the paper mentioned in para 28. They warned that the “ever expanding reach of the ECHR is now supplanting far more practical laws of war [namely IHL/LOAC]” and drew a contrast between the practical laws of war embodied in IHL and the nature of IHRL, particularly ECHR, which was “designed for conditions of peace in post-war Europe” and is a “wholly impracticable code for regulating the conduct of the British military in violent combat scenarios”.27

36.They explain the differences between the two legal regimes in a table:

Table 1: IHL vs. IHRL

International Humanitarian Law (e.g. LOAC)

International Human Rights Law (ECHR/HRA)

Treats various types of armed conflict differently (states vs state; high intensity civil war; low-intensity civil war).

Treats all types of conflict in the same way. Does not differentiate between riots handled by police and full-scale pitched battles, unless states formally seek to derogate.

Different regimes combining a few general principles (distinction, military necessity, humanity, proportionality) with an array of specific rules.

Single regime comprising rights-based rules pitched at a high level of abstraction and involving considerable judicial discretion in application.

Main addressees of obligations are parties to the armed conflict (including non-state armed groups).

Addressee of obligations is the Government/state.

No international judicial system of enforcement. With the exception of war crimes, supervision and enforcement is instead centred on states and on the International Committee of the Red Cross.

Includes several international bodies entrusted with enforcement and monitoring, including political bodies (such as the UN Human Rights Council) and judicial or quasi–judicial bodies (e.g. the European Court of Human Rights and the Human Rights Committee and often also domestic courts). Consistently with the rights-based nature of the system, enforcement at the initiative of individuals is central.

Only applies in times of armed conflict.

Applies all the time.

Its provisions are generally non-derogable (except Article 5 Geneva Convention IV).

Most human rights provisions are derogable.

Conceived for the conduct of hostilities and protection of persons in the power of the enemy.

Conceived to protect persons from abuse by the power of the state. Does not rest on the idea of conduct of hostilities, but on law enforcement during peacetime.

Is premised on different status (civilians, combatants, civilians directly participating in hostilities, prisoners of war, etc), each entitled to distinct privileges and immunities.

Is premised on the principle of equality and the idea of equal rights.

Focuses on ‘parties to conflict’ (states or non-state parties).

Focuses on the individual.

Detention, subject to various guarantees, allowed on security grounds.

Detention justified on a number of exhaustive grounds which, under the ECHR, do not include security.

Notion of control of territory pertains to law of occupation and triggers absolute obligations.

Notion of ‘effective control’ has a broader meaning: IHRL obligations are more flexible and vary with the degrees of control. IHRL can apply in certain situations that do not conform to the common definition of occupation.

Accepts the use of lethal force against combatants and civilians directly participating in hostilities, tolerates incidental killing of civilians in some circumstances (subject to proportionality). Planning military operations aimed at killing enemy combatants is permitted.

Lethal force can only be used in cases of imminent danger. Extremely narrow acceptance of lethal force. Planning an operation with the purpose of killing is never lawful.

Misapplication of force can constitute war crime.

Misapplication of force is treated as a crime.

Source: Ekins, Morgan and Tugendhat (2015), Clearing the Fog of Law

37.The Clearing the Fog of Law paper argued that to restore the primacy of IHL the UK Government should derogate from the ECHR before future armed conflicts.28

38.In October 2016, the Prime Minister and the then Defence Secretary, the Rt Hon Sir Michael Fallon MP, announced that the Government would “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts” by introducing a “presumption to derogate” from the ECHR during future armed conflicts. According to the Government, “our legal system has been abused to level false charges against our troops on an industrial scale”.29

39.In its 2017 manifesto, the Conservative Party made the following commitments:

We will protect our brave Armed Forces personnel from persistent legal claims, which distress those who risk their lives for us, cost the taxpayer millions and undermine the Armed Forces in the Service they give. Under a Conservative government, British troops will in future be subject to the Law of Armed Conflict, which includes the Geneva Convention and UK Service Law, not the European Court of Human Rights. We will strengthen legal Services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the Armed Forces.30

We consider the question of derogation from the ECHR as one of the options for reform of the current system underpinning legacy investigations in Chapter Four of this report.

A conflict apart? Northern Ireland, Operation Banner and the legal framework

40.Armed Forces were deployed to Northern Ireland in a supporting role for the local police forces. Therefore, IHL did not apply. Instead, Service personnel were subject to Service Law and Civilian Law, as well as the specific Rules of Engagement (RoE) provided.

41.In Northern Ireland, the RoE were contained in what was commonly known as ‘the Yellow Card’. The Yellow Card was subject to continuous review and scrutiny and was amended on several occasions. Initially containing 21 distinct rules, the Yellow Card was considered to be too detailed and complex to be readily intelligible and was subsequently revised. The 1980 version only contained 6 rules.31

42.According to the House of Commons Library, the British Army suggested in its 2006 assessment of Operation Banner that “it was intended that so long as soldiers adhered to the contents of the Yellow Card then they would be acting within the law”. However, “it was widely acknowledged that the Yellow Card had no legal force” and, in the opinion of the Standing Advisory Commission on Human Rights:

The operational rules for the use of lethal force by soldiers and policemen are considerably more detailed and more restrictive than the test laid down in the Criminal Law Acts. But they have no formal legal force and cannot therefore be taken to override or even to assist in the interpretation of the statutory test [ … ] It is clear that in case of any conflict between the two sets of rules the legal standard must prevail in any civil or criminal proceedings arising out of a disputed incident.32

43.IHRL has applied in Northern Ireland, with the ECtHR’s case law and interpretation of Article 2 and 3 of ECHR playing a key role in underpinning the investigatory process of Troubles-related deaths.33

The practical experience of operating under the legal framework

44.On 4 September 2018, we took evidence from Colonels (Rtd) Tim Collins and Jorge Mendonça, who were asked for their perspectives on the legal underpinnings of British military operations and on the training, in legal matters, that Service personnel received during recent conflicts. We also took evidence, on 11 December 2018 from General (Rtd) Sir Nick Parker, who held senior Commanding Officer positions in Northern Ireland, Afghanistan and Iraq.

Impact of law on Armed Forces personnel

45.Colonel Mendonça argued that it would not have been possible to wage either the First or Second World Wars successfully under the sort of legal regime that exists today. He suggested that this was particularly because of the feeling that soldiers, going into battle today, “have to question everything they were told to do, because it could hang over them for years thereafter and ruin their lives”.34

46.According to Colonel Mendonça, this process of constantly looking over one’s shoulder, as exemplified by Colonel Collins’ claim that he tells his son (a serving soldier) that if he is given an order that he must check it is legal and, if possible, given in writing, “has got to slow things up”, thus cutting against the key point of an Army: “to win [ … ], to act more decisively and to get the job done”.35

47.General Parker told us how the chain of command responded to the legal issues during conflict. He explained that there was a habit of “separating the operational chain of command [ … ] from, if you like the technical chain of command, where the legal stuff was going on. If you sat in a divisional chain of command, this was not your business, because it was being sucked out into the adjutant general’s area, into this very complex legal environment”.36 He suggested that the military has been “running scared of the law” and recalled conversations he had had while a commanding officer when “we were clinging on to the idea of courts martial, because there were these attacks coming in on the way we executed the military aspects of law”. Overall, his characterisation of officers’ responses to legal issues was “it was too complicated and you did not really understand it, so you left it to the experts to do it”.37

The legal status of the conflicts in Iraq and Afghanistan

48.An important section of our session with Colonels Collins and Mendonça focused on the status of the conflicts in Iraq and Afghanistan. Colonel Collins rejected the view that Afghanistan was a war and argued that Western forces and the Afghan government were instead combating criminal bodies. As a result, military personnel were engaged in supporting the rule of law, rather than participating in the kind of state-versus-state conflict for which military law exists.38

49.There is a significant difference between this argument and the experience of Service personnel on the ground who, especially if they are fired upon, see themselves in a combat situation.39 However, as Colonel Collins said, “the reason we are sitting here today is that that there is an important difference [between conventional state-versus-state conflict and non-international state conflicts/counter-insurgency operations], and that’s where the clever lawyers are jumping in and saying, “My client was harmed”, when of course his client was an active combatant, albeit a criminal”.40

Legal Training and Education

50.Colonels Collins and Mendonça were asked about the level of training they and their regiments received before their deployments to Iraq.

51.According to Colonel Mendonça, his unit, “like many”, was the subject of delays in learning when they would be deployed, for “political reasons [ … ] [which meant] that we did not get the resources of the training team coming to us to help us to prepare”. However, “when eventually someone kindly signed the order to warn us formally of deployment, in June 2003, some resources then came our way to help us with such training”.41

52.He told us that for rules of engagement training, “the brigade lawyer provided us with a draft [of the rules]” so that he and other officers could train their soldiers. He also told us that the legal framework for their deployment and operations featured in their training to soldiers in the form of an hour-long lesson “that was repeated several times and it would then have been tested with scenarios”. These lessons continued to be repeated and tested after the regiment arrived in theatre.42 Asked if there was anything comparable to the yellow card, Colonel Mendonça believed that there had been, but could not remember carrying such a card in his pocket. Colonel Collins, however, queried whether such a card would have existed, due to the change in the nature of the war by the time Colonel Mendonça’s regiment was deployed.43

53.At the outset of the war, the UK was part of a multi-national coalition fighting the Ba’ath controlled Iraqi state. The war was thus fought under LOAC. By the time, Colonel Mendonça’s regiment was deployed, the collapse and defeat of Saddam’s regime had seen the nature of the conflict evolve away from LOAC and towards counter-insurgency.44 As a result, the rules changed “so that if someone had a weapon [ … ] it was not lawful to open fire. They had to be engaging you at the time”. Colonel Mendonça said that he remembered the legal advice as “being clear” and that it did not cover the ECHR.45

54.On the training and advice provided for Service personnel during the Troubles, Colonel Collins told us that Service personnel had received “extensive advice” which included “reinforcement training” where personnel would:

Go through an intensive period of training and you would carry a number not just of cards for opening fire, cards for opening fire with baton rounds, cards for if you strayed into the Irish Republic. It was a whole aide memoire, and so the training was comprehensive.46

Colonel Collins also said that the yellow card was something that “was reflected on in training”, but “not something you read in bed at night; it was something you were aware of”.47

55.When told that the yellow card had been judged by the Standing Advisory Committee on Human Rights not to provide full protection, Colonel Mendonça expressed disappointment, particularly as many Service personnel would have thought that it provided “pretty clear guidance on how to behave”.48

56.General Parker suggested that legal education and training:

Gets better as a campaign goes on. As you adapt more to the circumstances that you face, so your advice and your understanding of all aspects, including the legal aspects, gets better. When you get bunged into somewhere, first off it is extremely difficult to understand exactly what the legal circumstances will be, and you have to trust.

57.On that point, Sir Nick spoke of his belief in trusting the chain of command to do the right thing: “if you do the right thing, you usually end up being able to justify what you have done in any circumstance”:

I have a recollection of training for Northern Ireland where we were being briefed on the yellow card. The briefers showed us a video with somebody coming out with a nail bomb from behind a wall. They freeze-framed the video at various stages and asked whether you could shoot at this point. The commanding officer of the day stood up and said, “Stop—this is ridiculous. You can’t freeze-frame life. You can’t make judgments like that.49

58.According to Sir Nick, “you have to make judgments on the basis of a flow and context; yet that was the way we were being taught. You cannot take it to those sorts of extremes. You have to trust the chain of command to do the right thing”.50 When it was later pointed out to Sir Nick, that the commanding officer, in the scenario outlined above, had done the wrong thing in stopping the video, when a similar technique was used to convict Lee Clegg, Sir Nick reiterated his insistence that he had done the right thing and that the freeze frames used in court in the Clegg case were “wholly inappropriate. That is not what life’s like”.51

Conclusions

59.The legal frameworks underpinning the role of the Armed Forces in civilian and military operations are becoming increasingly complex and difficult to navigate, particularly in the fog and confusion of operations and conflicts. We share the judgement of our predecessor Committee in its 2014 report that the tensions and overlap between International Humanitarian Law (the Law of Armed Conflict) and International Human Rights Law have led to a lack of certainty and clarity. The expansionary judgements of the European Court of Human Rights have served to add even further uncertainty to this picture, particularly when their judgements have, in some important instances, had the effect of applying the Convention and its obligations retrospectively.

60.This complexity and uncertainty has meant that it is all the more challenging and all the more urgent that commanding officers and Service personnel fully understand the laws governing the conflicts in which they are engaged. The importance of clear and accessible law has become well established in the civilian sphere, not least through the work of the Law Commission, and this principle should be just as, if not more, important when it comes to our Armed Forces.

61.In light of the increasing complexity of the legal frameworks underpinning military operations, the MoD should ensure that sufficient resources are made available for educating the Armed Forces, on a more regular basis, about their legal obligations.

8 Ministry of Defence, Legal Support to Joint Operations, Joint Doctrine Publication 3–46, p.22

9 Ministry of Defence, Manual of Service Law (JSP 830), Vol. 1: Commanding officers guide, pp. 1.1.3 - 1.1.4

10 Armed Forces Act 2006

11 Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, Twelfth Report of Session 2013–14, HC 931, para. 21

12 JSP 383: The Joint Service Manual of the Law of Armed Conflict, p.3

13 Ibid., pp.3–4

14 Ibid., p.5

15 Ibid., pp. 7–14

16 Ibid., pp.15–16

17 American Red Cross (2011), Summary of the Geneva Conventions of 1949 and their additional protocols, pp.5–6

18 International Committee for the Red Cross (2009), Protocols I and II additional to the Geneva Conventions

19 Ibid., p.14

20 Ibid., pp.21–25

21 Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, Twelfth Report of Session 2013–14, HC 931, para. 21

22 European Court of Human Rights Press Unit (May 2018), Factsheet – Armed Conflicts, p.13

23 R. Ekins, J. Morgan and T. Tugendhat. (2015), Clearing the Fog of Law, Policy Exchange, p.11

24 Ibid., p.13

25 Ibid.

26 Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, Twelfth Report of Session 2013–14, HC 931, para 128–129

27 R. Ekins, J. Morgan and T. Tugendhat (2015). Clearing the Fog of Law, Policy Exchange, p.8

28 Ibid., p.46

29 P. Walker and O. Bowcott (The Guardian, 4 October 2016). Plan for UK military to opt out of European convention on human rights

30 The Conservative and Unionist Party (2017). Forward, Together: Our Plan for a Stronger Britain and a Prosperous Future, p.41

31 C. Mills and D. Torrance (26 June 2018), Investigation of Former Armed Forces Personnel who served in Northern Ireland, House of Commons Library Briefing Paper: CBP 8352, pp.9–11

32 Ibid., pp.11–12

33 Defence Committee, Investigations into fatalities in Northern Ireland involving British military personnel, Seventh Report of Session 2016–17, HC1064, paras. 26–38

34 Q5

35 Qq16–18

36 Q124

37 Q125

38 Q6

39 Q14

40 Q12

41 Q21

42 Qq21, 25

43 Qq26–27

44 Qq32–33

45 Qq29–30

46 Q31

47 Q35

48 Q36

49 Q132

50 Q132

51 Qq142, 144



Published: 22 July 2019