Thomas Tugendhat is the author of “The Fog of Law”, published by Policy Exchange today. He was previously Military Assistant to the Chief of the Defence Staff.
Over the past decade I have served in both Iraq and Afghanistan. I have seen the courage of young men and women as they make tough decisions in the face of the enemy. I have seen speedy decisions save lives and change the course of a battle. Today, this is getting harder. Legal creep is forcing leaders at all levels to ask themselves not just, “what will the enemy do?” But “what will the judges say?”
The Supreme Court’s decision that the European Convention on Human Rights applies on the front line puts judges alongside soldiers.
The narrow decision that saw the Supreme Court decide to extend European law in the case of Smith and Others v the Ministry of Defence  has changed the legal terrain. As Lord Mance said, foreign judges, through the Strasbourg court, will for the first time be able to prohibit orders by British commanders given to British troops in combat.
The claimants in the Smith case did not plan this. As the relatives of soldiers who served in Snatch Land Rovers and Challenger tanks in Iraq they were thinking about the lives of others. But the tragedy of this is that the court’s decisions will not make this better, but worse. Giving foreign judges jurisdiction on the battlefield will cause strategic harm to Britain.
Even without a complainant the decision is shaping decisions. Lt Gen Sir Paul Newton, the Army’s former Commander of Force Development and Training said that by 2010 the Army Board had already noticed risk aversion creeping into commanders at all ranks as they tried to pre-empt judicial inquiry.
For the government too this has implications. Would the Falklands Task Force have been allowed to sail before pre-deployment training was complete? It defies military judgment to believe that giving the Argentine forces longer to dig in would have improved the human rights of the Royal Marines, Paras or Guards who so courageously retook the islands. These rights, when imposed, do not protect British troops in battle.
Lord Hope, who spoke for the four of Supreme Court justices who carried the day, argued that soldiers cannot defend the rights of others if their own rights are not guaranteed. This demeans all troops who shoulder the burden of defending our nation. Just because we agreed to give up our rights to free speech, freedom of association and yes, if necessary, the Right to Life, did not make us robots.
It didn’t blind me to what was right or wrong and nor did it turn those alongside whom I had the privilege to serve into moral vacuums. They remain what they always were – the finest of their generation whose integrity and courage marked me greatly.
Others too give up rights without being incapable of defending others: I firmly expect that despite giving up his own right to vote in general elections Lord Hope fully understands democratic primacy.
All of this cries out not for the formulaic application of law – but for common sense, and balance. The ECHR, which was brought into domestic law by the Human Rights Act, is not the right set of laws to apply to the battlefield and we should not be imposing it. Previously, the Law of Armed Conflict – which incorporates the Geneva Convention – was deemed right to balance the requirements for the rights of the combatants with those of the others affected by war.
This would give the space for commanders – from the Prime Minister down – to exercise freedom of action. Some victories can only be won by seizing fleeting chances. Delays can lead to protracted, bloody battles and even defeat.
But blaming the judiciary is not the answer. They are stepping into a vacuum created by the politicians. Successive ministers have lamented the growing boldness of the judiciary in national security matters, but have rarely acted to limit it. I hope this Policy Exchange report will trigger just such a discussion because in the heat and dust of Helmand today corporals and lieutenants will be taking many tough decisions as they lead sections and platoons. Those choices could well be subject to judicial oversight months or years after our forces have left Afghanistan and the understanding of battle has faded. That is not justice for them.
Worse still, as these commanders are evaluating complex situations with the best information available at the time they will be forced not just to wonder what the enemy is planning, but what the judges will say.
As the ethos of the armed forces is being undermined, that of the enemy is evolving. Even now some who tried to kill our soldiers in Iraq are trying to undermine our forces through legal action in British courts. This is wrong. Stalin famously asked, “how many divisions does the Pope have?” Now our enemies are starting to ask the same of our judges. That can’t be right.