UK Armed Forces Personnel and the Legal Framework for Future Operations

House of Commons Defence Committee UK Armed Forces Personnel and the Legal Framework for Future Operations Twelfth Report of Session 2013–14 Report, together with formal minutes and written evidence Ordered by the House of Commons to be printed 26 March 2013 HC 931 Published on 2 April 2013 by authority of the House of Commons London: The Stationery Office Limited £17.50 The Defence Committee The Defence Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Ministry of Defence and its associated public bodies. Current membership Rt Hon James Arbuthnot MP (Conservative, North East Hampshire) (Chair) Mr Julian Brazier MP (Conservative, Canterbury) Rt Hon Jeffrey M. Donaldson MP (Democratic Unionist, Lagan Valley) Mr James Gray MP (Conservative, North Wiltshire) Mr Dai Havard MP (Labour, Merthyr Tydfil and Rhymney) Adam Holloway MP (Conservative, Gravesham) Mrs Madeleine Moon MP (Labour, Bridgend) Sir Bob Russell MP (Liberal Democrat, Colchester) Bob Stewart MP (Conservative, Beckenham) Ms Gisela Stuart MP (Labour, Birmingham, Edgbaston) Derek Twigg MP (Labour, Halton) John Woodcock MP (Labour/Co-op, Barrow and Furness) The following Members were also members of the Committee during this inquiry. Thomas Docherty MP (Labour, Dunfermline and West Fife) Penny Mordaunt MP (Conservative, Portsmouth North) Sandra Osborne MP (Labour, Ayr, Carrick and Cumnock) Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/parliament.uk/defcom. The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in a printed volume. Additional written evidence may be published on the internet only. Committee staff The current staff of the Committee are James Rhys (Clerk), Dougie Wands (Second Clerk), Karen Jackson (Audit Adviser), Ian Thomson (Committee Specialist), Christine Randall (Senior Committee Assistant), Rowena Macdonald and Carolyn Bowes (Committee Assistants). Contacts All correspondence should be addressed to the Clerk of the Defence Committee, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 5745; the Committee’s email address is [email protected]. Media inquiries should be addressed to Alex Paterson on 020 7219 1589. UK Armed Forces Personnel and the Legal Framework for Future Operations 1 Contents Report Page Conclusions and recommendations 3 1 Introduction 9 Evidence 10 Background 11 Importance of the legal framework to military operations 11 ‘Lawfare’ 12 2 Growing legal challenges—the problem 14 The origins of the legal difficulties facing the MoD and the Armed Forces 14 Conflict between International Humanitarian Law and human rights law 14 Nature of conflicts 16 Working in coalition 16 Why the MoD needs to address the challenges 17 Impact on the operation of the Armed Forces 17 The time is right 21 3 Human rights law and International Humanitarian Law 23 Human Rights Law and the European Convention on Human Rights 23 The law as it relates to insurgents/combatants/civilians 24 Deaths in Iraq—Al Skeini 24 Detention in Iraq—Al Jedda 26 Afghanistan 27 Use of legal aid and judicial review 28 Work to improve arrangements for detaining people for security reasons 29 Human rights law, duty of care and members of the Armed Forces 30 June 2013 Supreme Court Judgment 32 4 Possible ways forward 35 New legislation 35 Crown Proceedings Act 36 Derogation 37 Clearly defined UN resolutions 37 Other options 37 5 New developments 39 New forms of conflict 39 Cyber 39 New weapons 40 Remotely Piloted Air Systems 40 Automated and autonomous weapons 40 6 Practical questions for the Armed Forces 42 International developments and organisations 42 2 UK Armed Forces Personnel and the Legal Framework for Future Operations Training, manuals and the MoD legal service 43 Training 43 Manuals 44 MoD and Armed Forces legal services 45 The public and the media 45 Conclusions 47 Formal Minutes 49 List of printed written evidence 50 List of Reports from the Committee in Session 2013–14 51 UK Armed Forces Personnel and the Legal Framework for Future Operations 3 Conclusions and recommendations Conclusions 1. The Armed Forces and the Ministry of Defence (MoD) have faced an unprecedented number of legal cases over the past ten years. This is perhaps not surprising given the nature of the conflicts in which the Armed Forces have been engaged and the growing use of challenges under human rights law in UK courts. As we have made clear, we make no criticism of the families of Armed Forces personnel who have brought cases against the MoD. Families understandably want to know the circumstances surrounding the death or injury of their family member. Much of our evidence has pointed to the adverse impact of the judicial consideration, process and development of the law underpinning these claims on the conduct of military operations. We note that these developments are driven by judicial decisions and we recommend that the Government, not just the MoD, reappraise these matters and address them in a strategic way and, where necessary, introduce legislation in Parliament to provide the necessary legal clarity. (Paragraph 127) 2. International Humanitarian Law (IHL), also called the Law of Armed Conflict (LOAC), was developed to regulate the conduct of parties to an armed conflict. We agree with the International Committee of the Red Cross that IHL has withstood the test of time as a realistic body of law that finds a balance between military necessity and humanity. We also agree with ICRC’s view that IHL needs to evolve in respect of non-international armed conflicts, in particular in the protection of detainees. The majority of armed conflicts involving UK Forces have not been wars between international states but what IHL and LOAC defines as non-international armed conflicts such as the operations in Iraq and Afghanistan. The Government should work to ensure that IHL is the body of law regulating the conduct of armed conflicts with primacy over human rights law. It should also continue to participate freely in the development of IHL to protect civilians and to regulate armed conflict of whatever type, in particular when working in coalition. (Paragraph 128) 3. Most of the growing number of cases brought against the MoD have resulted from claims of breaches of the European Convention on Human Rights, many of which have proved to be unfounded. The tension and overlap between the two bodies of law— IHL/LOAC and human rights law (HRL)—have resulted in a lack of certainty and clarity, together with a growing number of cases against the MoD. There are two aspects of the use of human rights law that most concern us. First, on the extraterritorial application of the European Convention on Human Rights to allow claims in the UK courts from foreign nationals. Detainees should be treated with humanity and respect and where this is found not to be the case, the individuals and the MoD should be prosecuted. However, the number of cases and the requirement for full and detailed investigations of every death resulting from an armed conflict is putting a significant burden on the MoD and the Armed Forces, not just in resources spent but in the almost unlimited potential for retrospective claims against them. (Paragraph 129) 4. Secondly, we are concerned about the failure of the previously well understood and accepted principle of combat immunity, most recently evidenced in the Supreme Court 4 UK Armed Forces Personnel and the Legal Framework for Future Operations majority judgment in June 2013 allowing families and military personnel to bring negligence cases against the MoD for injury or death. This seems to us to risk the judicialisation of war and to be incompatible with the accepted contract entered into by Service personnel and the nature of soldiering. It also challenges the doctrine of the best application of proportionate response with the unintended consequence that it might lead to far bloodier engagements on the battlefield as commanders may take fewer risks with their own troops and make more use of close air support or remotely actioned weapons, resulting in greater violence against the opposition with potentially greater numbers of civilian casualties. More legal certainty might result in less destructive conflicts. (Paragraph 130) 5. We have not attempted to impute motives for claims against the MoD or tried to describe these developments in terms of the concept of a doctrine of ‘lawfare’. Nor have we attempted to provide solutions to this growing challenge. It is for the Government to consider the best way forward in respect of the problems of clashes between IHL and HRL which it agrees exist. However, we have identified some of the options to provide more clarity and certainty with regard to the law which the Government should consider. Unless Government policy as determined by Parliament, military doctrine and legal principles are clarified, then uncertainty for military personnel and claimants will continue to grow. For these reasons, we are convinced that the Government requires a strategic plan to address these issues. (Paragraph 131) 6. We recognise that individual members of the Armed Forces have no personal liability in the cases described above as they are brought against the MoD. However, many personnel have been called to give evidence in court cases, Coroner’s inquests and inquiries. The reputational risk to Armed Forces personnel and the fear that they and their legitimate actions are exposed to extensive and retrospective legal scrutiny has led many to question their position serving in the UK Armed Forces.

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