You may have noticed that there has been a bit of a kerfuffle with the Army being sued for alleged human rights abuses in Iraq – the kerfuffle being that these turned out to be spurious. The relevant firm is now being shut down.
You may not recall that there used to be a thing called Crown Immunity, which was provided by Section 10 of the Crown Proceedings Act. This meant that the Crown could not be sued for from actions for death or personal injury caused by members of the British Armed Forces. When the EC incorporated the European Convention on Human Rights into EC Law Section 10 was deemed incompatible, and was thus repealed by Saint Tone’s Human Rights Act 1998. Net result, chaos on the battlefield and subsequently in court. Soldiers feel that the society that sends them to war is now penalising them for prosecuting such a war. This is not good for morale, recruitment or retention.
Brexit (when Mrs May gets around to setting it in motion) provides an opportunity to resolve this matter as we will no longer be bound by the ECHR, or indeed any other law that does not originate in and be passed by Parliament. So what laws does one need to control soldiers?
Firstly, some background. Before 1998 the British Army had been in existence for over 300 years, won a substantial number of wars was generally viewed as disciplined and lawful. Repealing Section 10 therefore, like so much of St Tone’s work, solved a problem that did not exist. Warfare is bound by the Geneva (and other conventions) which generally provide for the acceptance and treatment of prisoners and the safety of non-combatants, cultural icons etc. Of course, not all states are signatories and not all wars are between states. But the basic ideas are straightforward and easily interpreted. Note also that orders are only binding if lawful, so “shoot that prisoner” is not a lawful order. This is well understood and is enforced rigorously, as Sergeant Blackman found out.
Surrendering is actually not easy. Standing up on a battlefield is inherently dangerous and white flags are not issued to soldiers. Moreover, there comes a moment when surrender is no longer practically possible and accepting a surrender is equally dangerous, as members of 2 Para found at Goose Green in the Falklands, were a platoon commander was killed as he went forward to accept the surrender of a position waving a white flag.
Outside of general war the situation is more complicated. British troops serving in Ulster had no more rights to kill than anyone else under (then) common law. They were allowed to use lethal force only if a life was in imminent danger and there was no other way of preventing this. This was encapsulated in the Yellow Card, with all soldiers learned and understood by heart. There may or may not have been a breakdown on Bloody Sunday. The Saville Enquiry proved little beyond how much lawyers can charge and how memories of adrenaline fueled people who believe that they are in mortal peril are neither complete nor consistent.
A word on non-combatants. The battlefield is a very dangerous place whether you are armed or not. Mistakes are made, and mistakes with weaponry tend to be fatal to someone. While there is currently media interest in pursuing the perpetrator, the proximate cause is going to war in the first place and that decision lies in Westminster. And a note on scale. It is reckoned that some 116,000 Iraqi non-combatants were killed (by all sides and forces) in the 10 years following the invasion. The coalition was trying to avoid civilian casualties. By comparison, in the three months fighting in France after D Day in June 1944, over 20,000 French non-combatants were killed. (By way of context, the RAF killed more Frenchmen by mistake that the Luftwaffe did Britons on purpose during the Blitz). The point is simple, warfare gets people killed and is most dangerous for non-combatants.
Quite how to evaluate which deaths are collateral damage and which are the result of genocide is a rationalist’s nightmare and a lawyer’s gravy train. Clearly the answer lies in intent. The bombing of Caen in 1944 was intended to facilitate the British forcing the Germans out. It failed in that and killed many French non-combatants. The killing of the non-combatants was not the intention, but was a reasonably predictable side effect. Does that make it criminally reckless? And would that recklessness be more criminal than sending in British troops without the fire support that commanders at the time deemed necessary?
The brutal truth is that there is really only one rule in war; don’t come second.