March 29, 2015

Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat

Misguided human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets on a Saturday night in the West End, according to Clearing the Fog of Law.

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 Staf,f 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 argues that the “judicialisation of war” has markedly increased since the introduction of the Human Rights Act in 1998. By the end of March 2015, 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 further 1,000 private law claims.

The authors point to two specific areas of what they term “judicial imperialism”:

  1. The application of the ECHR to British forces deployed on combat operations in foreign countries
  2. The importation of civilian laws of negligence into fast moving combat situations

The report says that neither of these developments is properly supported by sound legal evidence, and that the expansion of “lawfare” hinders the ability of commanders on the ground to make immediate and potentially life or death decisions.

It highlights a number of court cases brought against the Government:

  • Only this month, in Al Saadoon & Others v Secretary of State for Defence, the High Court made clear that the ECHR applies wherever and whenever a British soldier employs force: shooting an individual is now enough to bring that foreign national into the jurisdiction of the UK under the terms of Article 1 of the ECHR.   So foreign nationals, including enemy combatants, may now sue Britain for breach of the ECHR – both in domestic courts by virtue of the Human Rights Act and in Strasbourg.
  • This followed the earlier Strasbourg case of Al Skeini v UK (2011), which extended the reach of the ECHR to British troops fighting in Iraq – a foreign country which is not a signatory to that Convention. The High Court’s decision in Serdar Mohammedfurther stretched the ECHR’s reach to Afghanistan.
  • The Smith v Mod case (2013) concerned two separate sets of claims by relatives of British soldiers killed in action in Iraq, and was the tipping point in the expansion of human rights laws into the military space. The UK Supreme Court established for the first time that soldiers injured in battle or the families of those killed in action may sue the Government for negligence in tort law – and for breach of the “Right to Life” under Article 2 of the European Convention on Human Rights (ECHR).

The paper makes a number of recommendations including:

  1. Reinstating the primacy of the Geneva Conventions in armed combat by derogating from the ECHR during conflict. Under the Geneva Conventions it is permissible to use lethal force as a matter of first resort against enemy combatants. By contrast the ECHR allows lethal force to be used only in exceptional circumstances as a last resort.
  2. Reinstating combat immunity to prevent claims of negligence being brought against the Government. Negligence as a concept has no place on the battlefield as it leads to a ‘safety first’ approach by commanders on the ground. All injured personnel should be paid compensation in full on a no-fault basis. The money would go to injured soldiers and their families rather than to personal injury lawyers and the public costs of trial.



On Tuesday 8th April, five former Chiefs of the General Staff backed Policy Exchange’s recommendations in a letter to The Times calling for “the government to recognise the primacy of the Geneva Conventions in war by derogating from the European Convention on Human Rights in time of war and redefining combat immunity through legislation to ensure that our serving personnel are able to operate in the field without fear of the laws designed for peacetime environments.”


Richard Ekins

Head of the Judicial Power Project

Tom Tugendhat

Conservative MP for Tonbridge, Edenbridge, and Malling

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