A soldier’s deadliest enemy will soon be a judge

March 30, 2015

Britain’s armed forces have often faced multiple enemies. Over the past decade this combination of threats has proliferated. But the most serious opponent — the one that could paralyse our military capability and leave us weakened — is the most unexpected: judicial imperialism.

By applying human rights laws designed for the stable conditions of peaceful, postwar Europe to our forces operating in extremely violent and fast-moving combat situations, judges are damaging the fighting capability of the most accomplished military force in Europe. Victories abroad are being undermined by defeat after defeat before the benches of London and Strasbourg.

The rise of “lawfare” emerges from the novel interpretation that human rights legislation applies where never previously intended. In Afghanistan, for instance, human rights lawyers forced the UK to release probable bomb makers after just 72 hours because of the possibility of abuse in Afghan custody. This left them free to plant murderous IEDs unless they were actually caught in the very act of planting explosives.

The Geneva Conventions allowed our troops to detain combatants or civilians if necessary — but our judges, and Strasbourg, couldn’t see the difference between Helmand and Henley.

Those who drafted the European Convention on Human Rights did. They never meant the convention to apply outside the signatory states but instead for the Geneva Conventions to take precedence in war. It has taken a civilian generation to confuse international humanitarian law with human rights legislation.

Unlike the ECHR, the Geneva Conventions understand the nature of combat. They acknowledge, for example, that in war lethal force can be a matter of first resort against the enemy. The ECHR allows lethal force to be used only in exceptional circumstances. Deciding what those conditions may be puts commanders in an impossible position.

It beggars belief that shooting an individual in war is now enough to allow that combatant to sue Britain for breach of their human rights. Since Labour introduced the Human Rights Act, our own courts are forced to hear these cases. Whether the application is successful or not is irrelevant — a judge must now look down the sights of every rifle and decide if the trigger should have been pulled.

Were we ever forced to retake the Falkland Islands, let alone repeat the Normandy landings our first act would have to be to recruit a battalion of judges.

Such judicial mission creep has paved the way for a spike in litigation. By the end of this month, no fewer than 1,230 public law claims are expected to have been filed against the Ministry of Defence in relation to British military action in Iraq. This is in addition to a thousand private law claims, of which more than 700 remain live. This litigation is expensive and time-intensive, preventing the MoD from focusing on operations where men and women are at risk.

In a violent and rapidly changing situation there will always be multiple perspectives giving legal casuists the opportunity to use the calm of the courtroom to suggest error. It is not only unfair but unethical to put troops we have sent into action on our behalf in a position that can leave them facing retrospective legal action. Worse still, it causes doubt in combat, which could lead to defeat.

The government must act now to bring clarity to this confusion. British commanders must be assured that the Geneva Conventions take precedence over the ECHR in combat. Uncertainty protects no one.

The government must now change tack. Instead of simply defending further action it must reverse the decline in the military’s expeditionary capabilities and repel the legal assault. The provisions of the ECHR include the option to derogate for combat abroad. The initial drafters knew this was necessary; the government must do so too. Together with the primacy of the Geneva Conventions this would give Britain’s armed forces the freedom from inappropriate legal intervention in battle.

In wars fought against enemies who often do not abide by universally binding international laws, it would be irresponsible for the UK to tie its own armed forces up in legal red tape. It would be unwise for parliament to impose such restraints; it is intolerable for the judiciary to do so.

If war is too important to be left to the generals, then certainly it is too important to be left to the judges.

This column originally appeared in The Times

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