Seeing through The Fog of Law: should we really be worried about lawyers on the battlefield?


“Judges have joined the front line”, according to Thomas Tugendhat, co-author of the one-sided, scaremongering report, The Fog of Law.  By the right-wing think tank, Policy Exchange, it is  knee-jerk reaction to the case of Smith & Others v Ministry of Defence and a a seriously disappointing contribution to the debate on accountability in matters of defence.

This case concerns three claims heard together, brought by soldiers injured, and families of soldiers killed, whilst serving in Iraq.  In one of the claims, soldiers were patrolling in Snatch Land Rovers which were not equipped to detect improvised explosive devices.  In the other claim, soldiers were mistakenly fired upon by soldiers who were allegedly not provided with adequate recognition training, whilst in a Challenger tank which was not equipped to identify whether the target was a friend or foe. The claimants allege that the deaths and injuries resulted from the negligence of the Ministry of Defence (“MoD”), and some claimants also allege a breach of article 2 of the ECHR (right to life).   The MoD submitted that the claims should be struck out because of combat immunity and that the soldiers did not fall within the UK’s jurisdiction.

Questions about the justiciability of resource decisions, where the boundaries of the ECHR lie, and the laws which govern armed conflict are important and legitimate. It will be interesting to see how the case of Pritchard v The UK, in which the applicant alleges a failure to carry out an article 2 (right to life) investigation into the death of a soldier, plays out in Strasbourg following this decision.  As Lord Justice Moses questions in his foreword to the report, “How can the legitimate demands of the relatives of those killed or injured through inadequacy be met without impeding the military skill and endeavour in the exercise of which those members of the armed forces gave their lives? How can standards of justice and of the law be maintained in conflict, without litigation and inquiry?”  Sadly, however, the authors of the report have missed out on an important opportunity to consider the tensions within the developing relationship between human rights law and aspects of military decision making in a measured and beneficial way.  The report almost exclusively quotes from the dissenting judgment in Smith and there is no evidence of consultation with the claimants or their lawyers, which severely hampers its credibility.

The report has a broad scope, criticising the extent of inquests, the Military Aviation Authority, and health and safety legislation.  I will just consider the report’s criticisms of the Smith judgment which is the main concern of the authors, who refer to the case as the “apogee of judicial encroachment”.  Even taking this single case, the misunderstandings in the report are extensive.

‘The case has been decided’

An obvious mistake made in the report is the claim that the Smith judgment decided the cases before it.  Instead, the claims were not struck out, which means they were held to have “reasonable grounds” and were not “bound to fail”, and so can proceed to trial.  This error is made throughout the report, which is particularly concerning considering one of the authors is a lawyer.

‘Combat immunity is being eroded’

The report clearly misstates the position in claiming that “the judgment represents a fundamental departure from the long-standing presumption: that actions taken on the battlefield are not open to civil litigation”.  This is a completely erroneous claim. In fact, the MOD is attempting to extend the doctrine of combat immunity to cover failures earlier than actual or imminent armed conflict. As Lord Hope judgment in Smith clearly explained, “to apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied…I can find nothing in these cases to suggest that the doctrine extends that far” [para 92].

‘The court has placed liability on service members engaged in conflict’

Again, this is not true. These cases are all brought against the MOD and relate to decisions made prior to conflict.  The judgment could not be used to extend liability to service members, Lord Hope explicitly confirms “there is no common law liability for negligence in respect of acts of omissions on the part of those who are actively engaged in armed conflict” [para 82].  Perhaps the authors of the report assumed their readers would not read the judgment.

‘The court has tied the hands of politicians by extending the ECHR’

The report asserts that the Smith judgment places unmanageable burdens on the MoD such as the need to stockpile unnecessary equipment.  Even if we credit the authors with understanding the basics of tort law, this ridiculous assertion assumes that a court would find that a “reasonable MoD” would stockpile unnecessary equipment. I seriously doubt that. If anything, the judgment should encourage the MoD to replace current stockpiled unnecessary equipment, such as Snatch Land Rovers, with equipment that is effective against current risks such as IEDs, thereby saving the lives of our servicemen and women.

In relation to the ECHR case, the court was clear to emphasise that allegations will be easily found to be beyond the reach of article 2 ECHR if the decisions made were “closely linked to the exercise of political judgment and issues of policy” [para 76], and there are multiple similar warnings throughout the judgment in relation to both the ECHR and negligence claims.

‘The cost of all these cases is going to cripple the MoD’

As you would expect, a main concern of the report is the amount of money which is being spent on such claims. The report claims that £130 million this year has been allotted to lawyers, legal claims and Inquiries. It fails to break this down any further, and this of course will include, for example, funding of and compensation for claims by members of the military who have suffered damage as a result of assault or harassment in the workplace or negligent medical treatment.

Predictably, the report suggests minimising expenditure by restricting access to the court rather than approaching such cases more reasonably, thereby reducing the legal costs which spiral when defendants insist on fighting claims all the way to court. The report complains about the large number of claims from Iraqi alleged abuse victims, but the settlement of these claims indicates that perhaps a more effective way of minimising legal costs would be to speed up early resolution and undertake preventative measures. As Martyn Day of Leigh Day has said of this case and others, “Greater adherence to the laws, both domestic and international, are the only way in which the MoD’s litigation will decrease.” It is worrying that the report complains about the expense of the Baha Mousa Inquiry, an Inquiry which held that Baha Mousa suffered an “appalling episode of serious gratuitous violence” in a “very serious breach of discipline” by a large number of soldiers.  Is this the kind of investigation we would rather cut corners on?

It is astonishing that this report contains such glaring and embarrassing errors, leading to conclusions which are so far from reality. The reader is supposed to be comforted by the authors’ repeated assurance that “this report is not a call for the kind of freedom of action Joseph Conrad allowed his anti-hero Kurtz in Heart of Darkness”. Big whoop. The report does seem to call for less accountability beyond the battlefield, less investigation into allegations of torture and less rights for those who claim mistreatment (for example by endorsing the poisonous ‘residence test’, a reform to legal aid which will severely hamper access to justice for the most vulnerable). As Lord Thomas of Gresford stated in the House of Lords last week, the report is “a wholly unjustified and over-the-top attack on the standards of justice which should protect those who volunteer for the armed services.”

The absurdity of some of the claims culminate in a laughable conspiracy theory: “it may not be long before either a foreign power or sub-state forces might begin to sponsor legal actions as a way of paralysing the armed forces through legal process.” It is not cases like Smith which are going to stymie military action, but biased, scaremongering reports like this might have that effect.


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