Policy Exchange has produced an interesting report – Clearing the fog of war: saving our armed forces from defeat by judicial diktat.
The report, authored by Professor Richard Ekins (University of Oxford), Dr Jonathan Morgan (University of Cambridge) and Tom Tugendhat (a former Military Assistant to the Chief of the Defence, Staff General Sir David Richards), reaffirms that armed forces on the battlefield should not be above the law but that the rules governing conflict must fall under the Geneva Conventions rather than the European Convention on Human Rights (ECHR). It argues that a blanket derogation from the ECHR is essential in all future conflicts involving British military personnel.
The report makes the following recommendations:
1. The government should derogate from the European Convention on Human Rights in respect of future overseas armed conflicts – using the mechanism of Article 15 ECHR.
2. The government should introduce primary legislation of amend the Human Rights Act 1998 to prevent military personnel relying on Article 2 ECHR against the Ministry of Defence in respect of injuries sustained on active operations.
3. The government should revive the Armed Forces Crown immunity from actions in tort during all future ‘warlike operations’ overseas, by Ministerial Order under the Crown Proceedings (Armed Forces) Act 1987.
4. The government should undertake to pay compensation, on the full tort ‘restoration’ measure, to all military personnel killed or wounded during active operations – without need to prove fault.
5. The government should take the lead in supporting the efforts by the International Committee of the Red Cross to strengthen the Geneva Conventions for the conditions of modern warfare.
6. The government should make an authoritative pronouncement of state policy – declaring primacy of the Geneva Conventions in governing the conduct of British Forces on the battlefield.
Derogation from ECHR:
I doubt that the form of derogation suggested is strictly-speaking possible. Article 15 is headed Derogation in time of emergency. ‘In time of war or other public emergency threatening the life of the nation’ derogation is possible but only to the extent ‘strictly required by the exigencies of the situation.’ Also, any derogation measures must not be inconsistent with the government’s other obligations under international law. Much would therefore depend on how ‘threatening the life of the nation’ is viewed. The matter of ‘threatening the life of the nation’ was discussed by Parliament – see here -following the UK’s derogation from Article 5 in the aftermath of the 9/11 events in New York.
Article 2 ECHR (Right to Life) is one of the articles which does not permit derogation. Parliament could use its legislative supremacy to prevent military personnel relying on Article 2 ECHR against the Ministry of Defence in respect of injuries sustained on active operations. However, such legislation is highly likely to bring the UK into breach of its international obligations under the ECHR.
(For a case based on Article 2 where the court decided in favour of the government, please see R (Long) v Secretary of State for Defence – full judgment).
The Crown Proceedings (Armed Forces) Act 1987 removed an immunity in tort which the armed forces had under the Crown Proceedings Act 1947 section 10. Section 1 of the 1987 Act states:
Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.
Section 2 enables the Secretary of State to make an order reviving the effect of section 10 where it appears to him to be necessary or expedient to do so for the purposes of any warlike operations in any part of the world outside the UK.
For more detail on this matter, please see the paper by Dr Jonathan Morgan – UK Armed Forces Personnel and the Legal Framework for Future Operations.
Morgan also argues that a new Government commitment to compensating combat injuries fully, on a no-fault basis, be coupled with the revival of Crown immunity using the 1987 Act. Whether there will ever be a government committed to compensating combat injuries fully is questionable given the substantial sums in question. See the problems experienced by Gulf War veterans. Without a willingness to pay compensation, it would be highly unfair to simply reimpose the immunity.
So, does the Policy Exchange Paper make fair points? I think that there is a case for saying that the reach of the law (common law and human rights) is at risk of going too far in relation to the armed forces. There is merit in permitting actions in relation to procurement of equipment decisions which are, after all, taken over time in the safety of MoD London – MoD does have a duty of care. The extension of human rights law to prisons abroad firmly under the control of British Forces is also defensible. However, there is a clear need for considerable care in extending the law much further – eg to the decisions of commanders in the very different conditions of armed conflict abroad. Military commanders must act within the constraints imposed by the Geneva Conventions even if opponents do not. Often, such commanders have to act with less resources than they might like to have and there may be limited intelligence relating to the enemy. Risks are a part of the military life.
The latest decision is that of Leggatt J in Al-Sadoon v Secretary of State for Defence  EWHC 715 (Admin). Many of the cases in this area are discussed by Leggatt J who began by saying:
1. One of the legacies of the Iraq war is litigation. Many claims have been brought in the courts of this country arising out of the British military involvement in Iraq between 2003 and 2009. Although it is now some six years since British forces completed their withdrawal from Iraq, the litigation is not abating. Most of the claims involve allegations of ill-treatment, unlawful detention and, in some cases, unlawful killing of Iraqi civilians by British soldiers. These claims fall into two groups.
2. The first group consists of claims for judicial review in which the claimants are seeking orders from the court to require the Secretary of State for Defence to investigate alleged human rights violations. I will refer to these claims as the ‘public law claims’. At the beginning of 2014 there were 190 public law claims, but since then another 875 claims have been added. I am told by Public Interest Lawyers, who represent all the claimants in the main proceedings brought by Al-Saadoon and others, that they expect at least 165 more claims to be added to the register of claims before the end of March 2015, bringing the total number of claims to at least 1,230. Separate judicial review proceedings have been brought by two individuals, Yunus Rahmatullah and Amanatullah Ali, who are represented by Leigh Day.
3. The second group of claims consists of claims for compensation brought against the Ministry of Defence. To date, more than 1,000 such claims have been issued: some 294 of these claims have been settled but the rest are still pending. I will refer to these claims as the ‘private law claims’.
4. This judgment follows a trial of eleven preliminary issues raised by the public law claims. The directions for this trial were agreed between the parties to the Al-Saadoon proceedings and ordered by the court with the aim of clarifying the scope of the duty of the United Kingdom to investigate allegations of wrongdoing by British forces in Iraq. The issues have been argued by reference to the assumed facts of certain cases which the parties have selected as test cases. Because some of the issues are also relevant to the private law claims and to the claims of Mr Rahmatullah and Mr Ali, the claimants represented by Leigh Day also took part in the hearing.
5. The preliminary issues have required consideration of a large body of law. The bundles of authorities prepared for the hearing contained over 300 cases and other legal materials, many of which were cited in the written arguments. I am grateful to all the parties for their detailed written submissions. Above all, the oral argument was conducted with conspicuous skill and helped to distil the key points in issue.
The issues in brief
6. The source of the duty on the state to investigate allegations of wrongdoing on which the public law claimants rely is the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998. Whether, and if so to what extent, the Convention applies to the activities of British armed forces in Iraq has itself been the subject of extensive litigation.
It is now clearly established, however, and is accepted by the Secretary of State, that anyone who was taken into the custody of British forces in Iraq had certain rights under the Convention which the United Kingdom was bound to respect: in particular, the right to life under article 2, the right under article 3 not to be tortured or subjected to inhuman or degrading treatment and the right to liberty under article 5. It is also clearly established that where a person who is within the jurisdiction of a Convention state is killed by agents of the state or dies in state custody or makes a credible allegation of torture or other serious ill treatment by state agents, the state has a duty to carry out an investigation. That investigation must be independent and it must be effective.
7. There are, however, two major areas of controversy about the scope of the duty to investigate which are the focus of the present preliminary issues. The first is whether, and if so when, the Convention applied to the use of force against Iraqi civilians who were not in the custody of British forces. In particular, the Secretary of State does not accept that (save during the period when the UK was an occupying power) individuals who were killed during security operations carried out by British forces in Iraq were ‘within [the UK’s] jurisdiction’ for the purpose of article 1 of the Convention such that the UK was bound to secure their right to life under article 2.
If this is correct, it follows that the UK has no duty under the Convention to investigate the deaths of such individuals. The claimants dispute this and argue that the UK’s jurisdiction under article 1 is of wider scope. The first preliminary issue is aimed at resolving this dispute.
8. The second major area of controversy is the extent to which, where individuals were within the jurisdiction of the UK, there is a duty to investigate alleged violations of their rights. As mentioned, it is clear that such a duty arises in cases of suspected unlawful killing or serious ill-treatment. Two main points, however, are in dispute. One is whether, and if so when, the duty to investigate allegations of a violation of article 3 applies in cases where the nature of the allegation is not that the claimant was tortured or mistreated by British forces but that he was handed over to United States or Iraqi authorities in circumstances where there was allegedly a real risk that they would subject the claimant to torture or mistreatment.
The claimants contend that the investigative duty of the UK extends to such ‘handover’ cases but the Secretary of State contests this. Issues (2) to (4) are aimed at resolving these questions. The second main disputed point is whether, and if so when, there is a duty to investigate allegations that the claimant was unlawfully detained in violation of article 5. These questions are the subject of issues (5) to (7A).
9. The remaining three preliminary issues raise some further questions about the scope of the investigative duty under articles 2 and 3 of the Convention, including questions about the impact (if any) on that duty of the UK’s international obligations under the United Nations Convention against Torture (‘UNCAT’).
Pump Court Chambers – Judges in the Combat Zone or Policing State Immunity
The law blogger ObiterJ writes at Law and Lawyers.