The Rt Hon Liz Truss MP, Britain’s first female Lord Chancellor, faces difficulty in her other role as Secretary of State for Justice. At the top of her list is likely to be the proposed British Bill of Rights and prison reform.
But she is also likely in her ‘red box’ to have the apparent ‘juridification’ of the armed forces. The Government is increasingly concerned that human rights legislation, particularly the European Convention on Human RIghts (ECHR), is being applied to the armed forces overseas. This issue continues to trouble the Ministry of Defence (MoD) which, since the start of the Iraq War, has received over 2,000 public and private legal claims relating to British military action. To date, the Government has found no way of preventing this juridification.
The Political Scientist and former British Army Officer, Professor Anthony Forster, states that “for over 200 years wars have been governed by the laws of war and national legislation”. Specifically, laws have been applied to military personnel through both international humanitarian law (IHL) and domestic law.
IHL is commonly referred to as the ‘law of armed conflict’, or the ‘law of war’. IHL comprises of a number of international treaties which attempt to restrict the effects of armed conflict for humanitarian reasons. The rules and regulations of IHL are founded in a vast number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols which were ratified during the 1970s.
Military behaviour has also long been restricted by domestic rules and laws. In 1731, the British Royal Navy introduced the first version of what is now known as the Queen’s Regulations. Since than, there have been a number of Acts which set out disciplinary frameworks for each of the services, with a single, harmonised disciplinary system governing all members of the armed forces introduced in 2005.
Since at least World War Two, it has been accepted in the UK that the special circumstances in which service personnel find themselves compared to civilians requires unique legal protections. This consensus resulted in principles such as ‘combat immunity’ and ‘Crown immunity’. The concept of ‘combat immunity’ has been defined as ”a common law doctrine that operates to exclude civil liability for negligence and deliberate damage to property or person committed by the armed forces during certain combat operations”. In practise, this meant that soldiers enjoyed immunity from prosecution in many forms of activity, including in the planning and preparation of attacks. Crown immunity prevented forces’ personnel injured while on duty from seeking compensation from the MoD.
The ‘juridification’ of the armed forces
Juridification is the process of increasing legal intervention in an area which had previously been based on trust. Tom Tugendhat MP, a former soldier, and Laura Croft, a barrister, published a paper last year with Policy Exchange. In the report they claimed that “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”. Professor Forster has agreed with these claims and argues that there “appears to be a strong case” that a process of ‘juridification’ of the British armed forces has occurred.
Forster, and Tugendhat and Croft, conclude that the ECHR has been the main mechanism through which cases have been brought against the MoD. Cases brought against the MoD usually fall into two categories; cases which relate to the armed forces’ treatment of civilians, and cases which relate to the armed forces’ treatment of their own personnel.
Armed forces’ treatment of civilians
There is one key case in the armed forces’ treatment of civilians; Al Skeini. In this case, the families of six Iraqis who died in Basra in 2003 brought a case against the MoD. They claimed that the British government had failed to carry out an investigation into the deaths of their relatives. Four of the relatives had been shot when British troops were conducting a patrol; one was an apparently innocent bystander who had caught in the crossfire between British troops and Iraqi gunmen; and the sixth died at a British base in the custody of British troops. The Rt Hon Geoff Hoon, the then Defence Secretary, decided not to order an independent inquiry into the deaths.
The British High Court, Court of Appeal and Law Lords all found that the Iraq War did not fall within the regional sphere of the ECHR. In order for the protections of the ECHR to apply, the actions of the state must occur within the state’s jurisdiction except in exceptional circumstances.
However, the European Court of Human Rights found that one of the exceptional circumstances in which the ECHR could apply extraterritorially was when a signatory exercised ‘public powers’ on the territory of another state. The Strasbourg Court found that the UK “assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”, in particular “responsibility for the maintenance of security in south-east Iraq”. Thus, during the period in question, the UK “exercised authority and control over individuals killed in the course of such security operations” and, as a result, a jurisdictional link existed between the UK and the Iraqis who had been killed. The MoD was thus ordered to pay compensation to the 6 victims’ families.
Armed forces’ treatment of their own personnel
There have also been a number of cases relating to the armed forces’ treatment of their own personnel. The main set of these types of claim arose from an apparent friendly fire incident, called the ‘Challenger claims’. During the incident one soldier was killed and a further two were injured. The soldiers claimed that the MoD had failed to equip the Challenger tanks involved and had not offered soldiers adequate tank-recognition training.
The MoD argued that the claims should be struck out because at the time of their deaths and injuries, the British soldiers were not within the jurisdiction of the UK for the purposes of the ECHR. The UK Supreme Court followed the previous Strasbourg verdict and held unanimously that the claimants were in the UK’s jurisdiction for the purposes of the ECHR at the time of their deaths. The MoD thus lost the case and compensation was awarded to the soldiers involved.
There has been an explosion in claims against the MoD which has angered subsequent governments. The current Conservative Government believes these judgments have the potential to significantly limit the capabilities of British troops and is determined to find a remedy to them.
To date, no such remedy has been found. Appearing before the Justice Select Committee earlier this year, the Rt Hon Michael Gove MP - the then Justice Secretary - argued that “there might be a derogation when British troops are engaged in conflict in the same way that France has derogated [from some human rights obligations] in the aftermath of the Bataclan atrocity.” Gove was referring to the November 2015 Paris attacks where terrorists launched coordinated attacks in cafes, restaurants, theatres and outside the Stade de France. Following the attacks, France temporarily suspended some elements of the ECHR This may been one mechanism of preventing claims, but the responsibility for resolving the problem now falls to the new Justice Secretary, the Rt Hon Liz Truss MP.
James Dobson is a researcher at Bright Blue