‘No win, no fee’ has no place in war zones

The guilty plea of the former human rights lawyer Phil Shiner this week to charges of fraud is a story that deserves considerable attention. Shiner had tried to claim £200,000 in legal aid without disclosing that – in the breach of the rules – he had employed an agent to cold-call potential ‘victims’ of mistreatment at the hands of British service personnel in Iraq.

An inquiry held by the UK government in 2014 found that the allegations of abuse or violence which Shiner brought forward had little basis in fact: one fighter who was said to have been killed in custody by a British soldier was established to have died in battle, never captured alive. Yet the conclusion of the long case against Shiner – who was struck off as a solicitor seven years ago after his actions came to light – does little to solve an underlying problem: that laws established for civilian life are being inappropriately applied in war zones.

Soldiers should not, of course, murder captives in cold blood, nor torture or mistreat them. Where these crimes are committed, the perpetrators deserve to be punished. At the same time, armed forces operating in a war zone cannot be expected to observe the niceties afforded to citizens in peacetime.

For many years, enemy combatants were considered to be protected by international humanitarian law, derived from the Geneva Convention, which sought to minimise human suffering without compromising the ability of a nation to use lethal force to defend itself and others against aggression. 

International humanitarian law demands, for example, that captives are fed, clothed and protected against acts of vengeance. Yet it also accepts that war involves violence and killing. In such an environment, the right to life – not to mention the right to a fair trial, to work, freedom of association and collective bargaining and so on – has little relevance.