Tom Tugendhat is the Conservative candidate for Tonbridge, Edenbridge and Malling. He was previously Military Assistant to the Chief of the Defence Staff and is the co-author of Policy Exchange’s ‘Clearing the Fog of Law‘ report.
The introduction of the Human Rights Act 1998 brought into UK law the European Convention on Human Rights. Before you switch off and decide that this is a dry legal cleaning up exercise, as the Labour government said at the time, consider its implications: we have armed the enemy.
Though no-one thought it at the time, the reality is that today combatants who have failed in war can continue the struggle in the courts – at our expense. Since the change, tens of millions of pounds have been spend on public inquiries and judicial reviews triggered by this legal ‘tidy up’. It could turn into the most dangerous spring clean in history.
In only the most recent example, the Al Sweady Inquiry cost more than £30 million based on claims that were “wholly and entirely without merit or justification”, according to the judge. But the baseless allegations – a product of “deliberate and calculated lies” from Iraqi witnesses and detainees – had an effect. In the eyes of many the mud sticks, and their desire to continue the conflict by smearing the British military has had some success.
This legal route must now be closed. It does nothing to defend the interests of the United Kingdom, nor even to prosecute those who violate our strict military law. Instead it simply enriches lawyers and gives voice to our enemies.
What is worse, by injecting confusion into the courtroom it undermines the only international agreement that can limit the evil of war – the Geneva Conventions. The time has come for the British government to make a firm commitment to return to the primacy of international humanitarian law, and turn away from the human rights lobby that has done us such great damage.
International humanitarian law, of which the Geneva Conventions are the principal body, adapts to the need of the situation. In discriminating between state-on-state warfare and civil war it is flexible to the needs of a Helmand-type operation as well as the major combat operations of Western Europe. It also recognises that non-state actors can also be belligerents. None of this true of the monolith that is the ECHR.
The Geneva Conventions are not a softer corpus of law. They define war crimes and have been used, sadly, to prosecute British forces in recent years. What they are is more appropriate in recognising the difference between policing and soldiering.
‘Clearing the Fog of Law‘, a new Policy Exchange report, maps a path out of the legal minefield. Together with Professor Richard Ekins and Dr Jonathan Morgan – expert legal academics – we have set out the steps necessary to allow the government the escape the tangle of red tape.
The first action must be to derogate from the European Convention on Human Rights for all future overseas armed conflicts. This is not some radical suggestion: indeed the authors of the Convention never expected it should apply beyond the borders of the signatory states – they knew it wasn’t appropriate for wartime – and included the mechanism of Article 15 to do just that.
But on its own that is not enough. The new administration should introduce primary legislation to amend the Human Rights Act to prevent personnel relying on Article 2 of the ECHR against the Ministry of Defence. This isn’t simply an attempt to avoid responsibility but instead an attempt to stop the law being used to undermine the fighting capability of our troops.
Enemies could exert pressure on our forces to bring actions seeking to harm, not promote, the combat readiness of our forces. In the most extreme cases, they could seek injunctions to delay or prevent deployment unless a specific item of kit is available, even if the nation requires action immediately.
To balance this measure and ensure troops are not disadvantaged, we strongly recommend that that the government makes an undertaking to pay compensation, on the full tort “restoration” measure, to all military personnel killed or wounded during active operations – without need to prove fault in respect of injuries sustained on active operations.
To ensure the success of the change, the 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 final reform required is for the government to make an authoritative pronouncement of state policy and declare the primacy of the Geneva Conventions in governing the conduct of British forces on the battlefield. That would help to shape the judicial bench towards an outlook more in keeping with the intent of the democratically-elected government. It would not be a rejection of the European Convention, but a recognition of where it should apply – on the peaceful streets of Britain’s towns and villages, not in the fire and dust of the battlefield.
As we turn back from the judicial adventurism that puts a magistrate on every patrol and in every firebase, we will release our troops to do what they must to defend our interests and to defend themselves. If we are to shape the future of conflict for the better, rather than seeking to hobble our forces, it would be better to work with the International Committee of the Red Cross to strengthen the Geneva Conventions for the conditions of modern warfare. That would be a revolution in the rights of humans in conflict with which we could all agree.