Judges Should Not Rule on the Fog of War

The British military is now thoroughly entangled in the net of human rights law—often to the benefit of Britain's adversaries. The British armed forces remain the most accomplished in Europe; but they suffer courtroom defeat after courtroom defeat in London and Strasbourg.

The tipping point was Smith v. Ministry of Defence (2013). The U.K. 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).

This judgment built upon the earlier Strasbourg case of Al Skeini v. U.K. (2011), which extended the reach of the ECHR to British troops fighting in Iraq—a foreign country which is, of course, not a signatory to that convention. The high court's decision in Serdar Mohammed v. Secretary of State for Defence (2015) further stretched the ECHR's reach to Afghanistan.

Only this month, in Al Saadoon & Others v. Secretary of State for Defence, the high court made it clear that the consequence of these judgments is 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 U.K. 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 1998, and in Strasbourg.

These judicial developments have paved the way for a "spike" in litigation: at the beginning of 2014, some 190 public law claims had been filed against the British Ministry of Defence in relation to British military action in Iraq; by the end of March 2015 this number is likely to have grown to 1,230 public law claims. This is in addition to a further 1000 private law claims—of which more than 700 remain live.

So where next for Britain's increasingly powerful judges? As the military's expeditionary capabilities decline, those of the judiciary seem to grow.

This new form of judicial imperialism should urgently be reversed. The judiciary is the wrong body to hold the British government and the armed forces to account for the way that war is waged—by retrospectively reviewing their purchasing, training and combat decisions. This is properly a matter for ministerial accountability, to the U.K. Parliament and through Parliament to the public.

The extension of the common law of negligence to military action has already had damaging effects on the forces. The result will be an excessive degree of caution which is antithetical to the war-fighting ethos that is vital for success on the battlefield. The government should immediately exercise its existing statutory powers to restore Crown immunity to claims in tort, including for alleged negligence.

The British armed forces should not be above the law. But which law? The ever-expanding reach of the ECHR is now supplanting far more practical laws of war—the current Geneva Conventions and later protocols under which our forces have fought since 1949.

By contrast, the ECHR—which is partly incorporated into British domestic law under the Human Rights Act 1998—is designed for conditions of peace in post-war Europe. It is a wholly impracticable code for regulating the conduct of the British military in violent combat scenarios. What place do peacetime concepts of "proportionality" have on the battlefield?

This folly reaches its apogee on the question of the detention of insurgents. It is surely absurd that European and British courts now expect our forces to operate in violent combat conditions according to a system more suited to the regulation of police powers on a Saturday night in the West End of London.

The result is a highly confusing variable legal geometry for British commanders. Are the Geneva Conventions supreme, or is it the ECHR/Human Rights Act? The British government has failed to convince the Strasbourg Court or the U.K. Supreme Court to discipline themselves by limiting the reach of the ECHR. The way to restore the Geneva Conventions as the controlling law that governs how British forces fight is to set aside the ECHR—by exercising the power under Article 15 of the ECHR itself to derogate.

The U.K. government must take prompt action to close down these multiple avenues of legal assault:

• The U.K. government should derogate from the European Convention on Human Rights in respect of future overseas armed conflicts—using the mechanism of Article 15 of the ECHR.
• The U.K. government should introduce primary legislation to amend the Human Rights Act 1998 to prevent military personnel relying on Article 2 of the ECHR against the Ministry of Defence in respect of injuries sustained on active operations.
• The U.K. 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.
• The U.K. 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.
• The U.K. 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.
• The U.K. government should make an authoritative pronouncement of state policy—declaring the primacy of the Geneva Conventions in governing the conduct of British forces on the battlefield.

This is from Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, the British think tank Policy Exchange's report on judicialization of British warfare. Richard Ekins is associate professor of law in the University of Oxford and a fellow of St John's College, Oxford. Jonathan Morgan is fellow, director of studies and university lecturer in Law at Corpus Christi College, Cambridge. Tom Tugendhat is a strategy consultant and Territorial Army officer.