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War on the law

Bruce Anderson says that it is impossible to run an effective army if soldiers are in constant fear of prosecution

23 July 2005

12:00 AM

23 July 2005

12:00 AM

The House of Lords has already been subjected to thoughtless changes. It is now threatened with further political correcting, including a change of name. This government is not only hostile to its ethos and its historical resonance. The Blairites resent the Upper House’s independence and its ability to make life awkward for ministers.

Last Thursday, both of those attributes were on display. It was only a three-hour debate, on a motion for papers, with no legislative consequences. But the quality of the speeches and the force of argument would have graced any debating chamber in any era. Six former chiefs of the defence staff took part and the issues under discussion were vital: the relationship between the armed forces and the rule of law; the abuse of legal procedure to undermine military morale. Since then, the debate has become even more relevant, with the news that 11 British soldiers are to be tried for offences in Iraq. Throughout the armed forces there is a widespread belief that the greatest current threat to military cohesion does not come from Iraqi militants but from lawyers.

The nature of the battlefield ensures that law and war have an uneasy relationship. Yet war has never been a law-free zone. Christianity and common sense have seen to that. Throughout the Christian centuries, theologians and philosophers have tried to limit war’s barbarism. When Fluellen protests, ‘Kill the poys and the luggage! ’tis expressly against the law of arms’, he was citing a moral code, even if it was more observed in principle than in practice.

From the Renaissance onwards, ethics was reinforced by ‘do as you would be done by’. It was in every combatant’s interest that prisoners and the wounded should be treated with some humanity. He did not know when he might share their fate. That growing awareness of reciprocity led to the Geneva Convention; its absence, to the horrors of the Eastern Front from 1941 to 1945.

Armies also need law. They cannot function without discipline and a chain of command. As General Sir Michael Rose put it: ‘Soldiers are not merely civilians in uniform. They form a distinctive group within our society, which is required either to kill other human beings or …to sacrifice themselves for the nation.’ That special status has been recognised by a separate code of military law. Under it, soldiers could be punished by their superior officers. They could also be protected, and they always knew that their actions would be reviewed by men who understood the context in which they had operated.


Both punishment and protection are now under threat. This is partly due to the Human Rights Act, which has undermined the primacy of military discipline. There is also the contemporary legal and compensation culture. As Lord Guthrie said: ‘Some [legal] investigations are necessary but many have more to do with political correctness, the culture of “somebody must be blamed” and fear of compensation demands …Solicitors from the United Kingdom are touting for business on the backstreets of Basra.’

The hazard does not only come from British lawyers. When the government signed up to the International Criminal Court, it created a potential liability for all service personnel. The French government was sensible enough to secure a derogation for its servicemen from both the ICC and the European Court of Human Rights. Our ministers were advised to do likewise. They refused. Three of our soldiers are now facing charges under international war crimes procedures.

The lawyers are out of control. This does not mean that generals want soldiers to have a licence to misbehave. No one would condone murder or the ill treatment of prisoners. Although the military authorities believe that Abu Ghraib could never have happened in the British army, there is no complacency. But as Lord Inge put it, quoting a divisional commander, Iraq is ‘highly volatile, highly dangerous…. [There is a] state of lawlessness and huge pressure on troops working in dreadful physical conditions, never knowing when in a moment an apparently benign situation would turn into a lethal attack.’

In those circumstances, young men have to make instant life and death decisions. In the nature of human decision-making, not all of them will be the right ones. But if this means that lawyers thousands of miles away can spend many hours reviewing a decision which a soldier had to take in a fraction of a second, two consequences will ensue. Fine young men will be subjected to injustice. Worse still, the entire process of military decision-making will be degraded. At a moment when the soldier’s mind should be focused exclusively on operational requirements and the safety of his comrades, he cannot be expected to ask himself how the lawyers might second-guess him. If he does, he will cease to be a good soldier.

British military discipline is almost universally admired, as is the decency of our soldiers. Yet since the invasion of Iraq, 176 of them have been investigated; most infamously, Trooper Kevin Williams. He was at a checkpoint. An Iraqi whom he challenged ran away. It was later discovered that the cart which he was pulling contained weapons and that he had terrorist links. Trooper Williams and another soldier chased him, even though he could have been leading them into an ambush. When they caught up with him, the Iraqi tried to seize one of their weapons. Only then did Kevin Williams shoot him.

The incident was scrupulously investigated by the military authorities, who decided that there was no case to answer. Then the Attorney General and the Crown Prosecution Service involved themselves. Many soldiers suspect that a lot of CPS lawyers disapprove of the Iraq war and have little regard for the armed forces. For two years, until the case was thrown out for lack of evidence, Trooper Williams lived under the threat of a murder charge. Anger about his case rippled through the debate. It was a shameful way to treat a young man whose sole crime was to volunteer to serve Queen and country.

After the debate, the CDSs were invited to see the Defence Secretary, John Reid. It was a friendly encounter. A man who combines an academic’s qualifications with the manner of an RSM in a Scottish regiment, Dr Reid is a patriot. If he had been defence secretary at the time, the Treasury would have found it far harder to cut the army by four battalions than they did under Geoff Hoon, who has water for a backbone and a rubber stamp for a brain. But John Reid was unable to give the Chiefs the assurance that they wanted: a guarantee that no British servicemen would ever appear in front of the ICC. Though the Defence Secretary clearly found that prospect repugnant, he had to admit that the matter was not in his control. The lawyers would have the final say.

As a result, in Lord Bramall’s words, ‘there is considerable disquiet among members of the forces that, even when doing their duty they may become vulnerable to prosecution. Without assurances of mutual confidence and responsibility, you cannot run effective fighting forces with the commitment, morale and readiness to take the risks needed to defeat a ruthless and determined enemy.’ Before that can happen, another determined enemy will have to be defeated: the lawyers.


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