UK Defence Select Committee: Extensive legal scrutiny undermining willingness of commanders to take necessary risks

The UK’s House of Commons Defence Select Committee published a report on Wednesday [full text] concerning the legal framework for future operations of the armed forces.  The Committee’s inquiry was carried out in the context of an “unprecedented number of legal cases” brought against the Ministry of Defence (MoD) over the past ten years, which have “raised a number of legal, ethical and practical questions for the Armed Forces and their conduct of operations.”

The report finds that the fear of combat actions being exposed to “extensive and retrospective legal scrutiny … undermines the willingness of personnel to accept responsibility and to take necessary risks with the consequent impact on operational effectiveness.” While the Committee maintains that international humanitarian law (IHL) “has withstood the test of time as a realistic body of law that finds a balance between military necessity and humanity,” it finds that the “tension and overlap” between IHL and and human rights law has resulted in “a lack of certainty and clarity, together with a growing number of cases against the MoD.”

The Committee highlights two aspects of the use of human rights law that it finds most concerning:

129. … 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.

130. 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 majority judgment in June 2013 [in Smith v MoD] 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.”

On this basis, the report recommends the Government “look strategically at the legal framework for future armed conflict” and “begin work now in order to re-establish the clarity of the doctrine, the legal framework including the legal protection of Armed Forces personnel and public legitimacy.” 

About the Author(s)

Ruchi Parekh

Former Associate Editor at Just Security Follow her on Twitter (@RParekh88).