Timothy Garden: UK troops have nothing to fear from the law

Even if insurgents ignore human rights, we are not excused from our responsibilities
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The Independent Online

Crusty colonels will find their blood pressure rising as they scan the headlines about British troops accused of war crimes. Former chiefs of defence staff were much exercised last week in the Lords about political correctness and its effect on the chain of command. Regimental associations are up in arms about what they see as a lack of government support for their soldiers when allegations are made against them.

These perceptions of changes in the laws of war are important. Not least because the armed forces may come to believe that they must not take risks for fear of appearing in court. Will a soldier faced with a life and death decision hesitate while working out the legal implications? Such fears are groundless. Our forces have always had to act within international law, and have been investigated when allegations of misconduct are made.

As a nation, we are fortunate that we have a military of which we can be rightly proud. It is a source of wonder that they, almost without exception, operate within the rule of law, and as a result are unusually effective in difficult humanitarian operations. The number of cases where British forces are alleged to be operating beyond the law are remarkably few given the range of worldwide operations which they are undertaking and the provocations which they face.

Just because insurgents and other opponents ignore human rights and the Geneva Convention, we are not excused from our responsibilities. Once we try to justify a lower standard, we are on a slippery slope. We have seen at Abu Ghraib where an ambiguous message from above can lead. Even more importantly, such abuses lead to greater resentment among the population and feed insurgencies.

So why the excitement now? A number of factors have come together. British forces have found themselves deployed on operations much more often since the end of the Cold War. They have to switch from fierce war-fighting to humanitarian relief operations overnight, and the rules of engagement change abruptly. Their actions are reported, and judged, around the world by television and internet in an instant.

Over the same period, international law has become stronger. While the Geneva Convention shaped the behaviour of the military in the past, the International Criminal Court has given teeth to the international community. The United Kingdom has also taken the European Convention on Human Rights into national law, and this has to be taken into account by the military legal system.

Meanwhile, our major ally, the United States, has not ratified the International Criminal Court treaty, and this is often taken as an enviable example by senior officers. They worry that the military discipline system will disappear, and that we might find soldiers standing trial in the Hague. This is all alarmist nonsense. The ICC only swings into action when a state does not have a proper investigation and legal system to deal with allegations. British servicemen are protected because of our legal system. Properly handled cases will remain within the military chain of command, and, where there is a case to answer, will come to trial by court martial.

One recent case brought concerns in the military to a head. Trooper Williams had been investigated following the shooting of an Iraqi in 2003. Unfortunately, there had been a blunder in the army legal advice, which led to the overturning of his commanding officer's decision to dismiss the charges against him. This, in turn, led to the hapless soldier being brought to trial for murder at the Old Bailey.

In the end, the case was dismissed. Yet, the legal process was very slow, and Trooper Williams had to live in fear of imprisonment for murder. The maladministration in this case led to unfounded wider worries about the ability of commanding officers to deal with indiscipline in their troops.

We can take comfort from the detailed report this week into Iraqi civilian casualties since the intervention. Those attributed to UK military action are remarkably few in number as one would hope in an action where we are trying to help the Iraqi people rebuild their country. Our military achieves all of that by operating under the rule of law without exemption. This makes them more effective. The current set of rules does not compromise the chain of command provided everyone does their job properly.

Every allegation of wrong-doing is investigated. Improvements in the speed of investigation would do much to reduce the current problems. Despite the headlines about war crimes, the public should take great comfort from the record of the British forces. They achieve great things because they operate within international law. Killing people even in war needs to be taken seriously.

The writer is a former assistant chief of the defence staff

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