Lawyers have no place on the battlefield

The harsh reality of war hit home again this week with two Royal Anglian soldiers killed in Helmand, only hours after one of their regimental comrades, Captain Martin Driver, died in hospital from horrific wounds he had sustained three weeks earlier.

At the same time, the Ministry of Defence was fighting an altogether different type of battle, but one whose outcome could have unwelcome implications for these soldiers’ surviving comrades. MoD lawyers were in the Supreme Court seeking to overturn a Court of Appeal ruling that imposes human rights legislation on British troops, even on the battlefield.

Last year’s ruling was the result of a six-year-long campaign by Catherine Smith to secure a more thorough inquest into the death of her son Jason and achieve better protection of soldiers’ rights. Private Smith did not die as a result of enemy action, but from heatstroke in Iraq in 2003.

The MoD accepts that Private Smith’s tragic death is covered by the Human Rights Act, as it occurred inside a secure base within the control of the British military. But the Court of Appeal ruling went far wider. The court made no distinction between the death of a soldier from natural causes, such as heatstroke, and a soldier killed while actively engaging the enemy. In effect, the court judged that there is an obligation on the military authorities to protect all members of the Armed Forces from all risks to their lives whenever they are at real and immediate risk of death.

This means that the Government and military commanders would constantly be required to demonstrate, even while on combat operations, that they did all that could reasonably be expected of them to avoid real and immediate risk to life from materialising.

We are witnessing a clash of cultures. The Court of Appeal’s judgment is the result of a bizarre bit of reasoning that shows no understanding of what soldiers do. The ruling categorised soldiers in combat as being akin to “diplomatic or consular agents abroad” for whom the authorities had comparable protective responsibilities, in or out of base or embassy. Perhaps the judges have not noticed, but whenever there is a sniff of violence, British embassies close and non-essential staff are airlifted home. But soldiers don’t even begin to earn their pay until the bullets start flying.

A combat-helmeted infantry commander, at home leading a violent assault into the teeth of Taleban fire, would have no idea of what to do in the tranquil grandeur of the Royal Courts of Justice. And a bewigged judge would be equally lost in the sewage-filled ambush ditches and sweltering alleyways of Helmand’s green zone.

For all their erudition and wisdom, are coroners and High Court judges really capable of passing judgment on the decisions made by military commanders? Leadership in combat is often about split-second life-or-death decision making. Imagine this scenario facing a commander. His platoon’s survival is under serious threat from the enemy who are dangerously close to overunning their position. Should he call in a danger close air strike knowing that some of his men will be at risk from being torn apart by stray shards of red-hot shrapnel? Or in another situation, with limited resources at his disposal, maybe he will use those ill-protected Snatch Land Rovers to outflank rapidly the enemy and take them by surprise, perhaps avoiding a lethal clash later. But there’s a risk that an IED explosion could kill one of the vehicle crews. Would taking that risk be infringing his soldiers’ rights to life?

A commander has more than enough on his mind already without having to worry about whether he might be in breach of the Human Rights Act.

The principle of combat immunity — well established within our legal system — is cast into doubt by the Court of Appeal. Military commanders do not have a duty to provide safe systems of work, nor is there a duty of care, in the legal sense, for soldiers in combat. Anyone who has ever experienced battle knows there could not be. Imposing this on commanders would make decision making much more difficult, even impossible.

Then there is the prospect — a nightmare for any military man — that a soldier could refuse to take part in an attack, claiming that enforcing disciplinary provisions against him would be contrary to his rights.

And the application of the Human Rights Act to soldiers in combat applies not just to the right to life. Under the convention, where it is deemed that human rights must apply, they cannot be divided or tailored. Those same Royal Anglians at the austere and besieged forward operating base of Paraang in central Helmand — where gun battles with the Taleban are a daily occurrence — would have a right to a private life, to family life and to freedom of expression.

No government has ever had the resources or foresight or time to be able to train, fund and equip an army that could face every conceivable threat on every conceivable terrain. And enemies, known and unknown, do not tend to give advance warning before they attack us. So would we be able to intervene in some unexpected conflict, even though we don’t have the best equipment for that operation? Would we have to wait until the right sort of vehicles are procured, or soldiers are acclimatised, before going into battle? If human rights legislation was applied to the Army, it would mean Britain would have a near-toothless foreign policy.

Will we stand and watch if there is an enormous earthquake on the other side of the world, or will we act fast to save lives, knowing that by doing so we are also putting our troops’ lives at risk? Under the court ruling, Churchillian action this day would become ever more unlikely in our risk-averse world.

We are used to seeing judges applying human rights legislation in a way that frustrates the Government’s counter-terrorist measures. We are now seeing the same principles being applied to military combat operations; principles that place individual rights and safety above collective rights and the safety of the people. This misplaced legalism must not be allowed to threaten the effectiveness or the safety of our armed forces.

Colonel Richard Kemp, a former Commander of British Forces in Afghanistan and author of Attack State Red.