Threat of legal action against MoD and the armed forces ‘could lead to bloodier engagements and potentially greater numbers of civilian casualties,’ claims report

The Commons Defence Select Committee has warned against 'the judicialisation of war' and called for an overhaul of the legal basis on which Britain wages war

Fear of facing legal action risks British commanders making decisions which would increase civilian casualties, amid the “judicialisation” of war, warns a report by the Commons Defence Select Committee being published today.

Britain's ability to fight in future conflicts is under attack from an “unprecedented” number of legal challenges being brought against the Ministry of Defence (MoD) and the armed forces, it says.

The “tension and overlap” between different international humanitarian and human rights laws have “resulted in a lack of certainty and clarity,” according to the UK Armed Forces Personnel and the Legal Framework for Future Operations report.

And the current situation could have “the unintended consequence” of “far bloodier engagements on the battlefield” with “potentially greater numbers of civilian casualties.”

For the prospect of being sued over death or injury caused to those under their command could see senior officers make decisions with deadly consequences.

“This conflict between the Law of Armed Conflict and Human Rights Law could actually lead to greater bloodshed,” commented James Arbuthnot MP, chair of the committee. “A risk-averse commander, reluctant to send troops forward, may increasingly turn to using indirect support such as air strikes with greater consequent violence against the opposition and potentially more civilian deaths,” he added.

A landmark decision by the Supreme Court last year to allow military personnel and families to sue the MoD for negligence in the case of death or injury risks “the judicialisation of war” and is “incompatible with the nature of soldiering.” But the report states that the MoD still enjoys “combat immunity” when it comes to soldiers “engaged in active combat.”

Most of the growing number of cases, “many of which have proved to be unfounded” relate to alleged breaches of the European Convention on Human Rights. The legal assault against the MoD is a “significant burden” on the armed forces, with an “almost unlimited potential for retrospective claims.”

The inquiry into the death of one individual, Baha Mousa, who died in British detention in Iraq in 2003, cost £25 million. And the deaths of up to 160 Iraqi citizens may need to be investigated, along with around 800 allegations of mistreatment.

The report calls for an overhaul of the legal basis on which Britain wages war, as part of the forthcoming Strategic Defence and Security Review. 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,” it says.

It is the system, rather than individuals, which needs addressing, according to Colonel Richard Kemp, former commander of British forces in Afghanistan. “The problem is not risk-averse commanders but a legal system which allows the actions of every commander on the battlefield to be scrutinised in civilian courts.”

Such additional pressure could prove costly: “Potentially it will not only risk increasing civilian casualties as the report suggests but also casualties among our own troops as commanders are distracted by considerations that they should not have to think about.”

Colonel Kemp added: “The legal mess exposed by this report serves only to disadvantage our forces and give advantage to the enemy and should be dealt with by the government as a matter of great urgency.”

In a statement, Defence Secretary Philip Hammond welcomed the report and warned legal challenges to “legitimate combat decisions” could “make it more difficult for our troops to carry out operations in the future.”

He added: “It cannot be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security. We will fight for this principle in the courts, but we have not ruled out legislation to protect the Armed Forces in the future if necessary.”

But Clive Baldwin, senior legal advisor, Human Rights Watch, commented: “The Committee wants a ‘vigorous’ fight against human rights being applied to the armed forces. But basic human rights standards should be applied to all detainees held by the British authorities anywhere in the world, including their right to find out the truth if serious abuse takes place.”

A spokesperson for Leigh Day, a law firm representing a number of injured British service personnel, and bereaved relatives of those killed during active service, who have lodged claims against the MoD, said: “This is yet another attempt by the Ministry of Defence to avert accountability for the choices they make and position themselves beyond the reach of laws intended to protect the people who serve in the British Forces and those unlawfully harmed away from the battlefield.”

“The current negligence claims we are taking against the MoD are in relation to alleged failures in training and the provision of technology and equipment. As Lord Hope said in the Supreme Court Judgment handed down in these claims last June: 'these activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised.’”

They added: “The MoD must also allow for those accused of breaking the law, whilst in uniform, to have their behaviour scrutinised to ensure the future reputation of the British Armed Forces.”

Case study

Private Phillip Hewett, 1st Battalion, Staffordshire Regiment, was just 21 years old when his war in Iraq ended in July 2005. The young soldier from Tamworth, Staffordshire, died when a roadside bomb tore apart the snatch Land Rover he was driving, killing two others.

His mother, Sue Smith, fought an eight year campaign against the Ministry of Defence – on the basis that her son’s human rights had been breached by the failure to provide adequately armoured vehicles. She was defeated at the High Court and the Appeal Court. The MoD claimed it could not be held liable because Pte Hewett died on the battlefield and not on a British army base or in Britain.

But she fought on. Her case was one of several which prompted a historic ruling by the Supreme Court last June that soldiers, even those on operations, should be protected by human rights laws and are not necessarily exempt due to “combat immunity.”

Jonathan Owen

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