Unshackling the British Military from Europe

Foreign Affairs & Security
Monday, October 17, 2016
James Watson


Theresa May and Michael Fallon have confirmed that Britain will derogate from the European Convention on Human Rights (ECHR) in future conflicts; protecting members of the Armed Forces from “spurious” legal claims, putting money back into taxpayers’ pockets and ensuring the UK military’s operational freedom. It’s about time.

Ratified by Britain 1951, the ECHR seeks to protect human rights and freedoms in Europe. The current British government wishes to opt out of Article 2 (Right to Life) and Article 5 (Right to Liberty) of this treaty. British armed forces, however, would continue to be subject to the Law of Armed Combat and the UK’s stringent Service Law.  

While isolated cases of abuse do occur, the vast majority of British personnel have served with distinction in Iraq and in Afghanistan. Unfounded accusations of misconduct undermine the military’s operational capabilities and affect the confidence of the UK’s servicemen and women in the post-Cold War security environment. The ECHR’s articles do not adequately reflect the realities of modern conflict and offer our opponents an opportunity to manipulate Britain’s legal system, in order to defame Britain’s armed forces.

The British armed forces have to contend with new opponents and security environments. The laws and regulations of the 20th century, such as the articles of the ECHR, do not reflect these realities. In his work The Utility of Force, former British Army general Sir Rupert Smith identified a shift from the “industrial war” of the 20th Century to “War Amongst the People;” a term he employs to describe the nature of today’s warfare, which is characterized by modern guerilla groups who operate unconventional, hybrid warfare tactics. Civilians, in particular, are the primary focus of these groups and Hybrid Warfare is the synthesis of conventional, irregular, economic, and cyber warfares into a doctrine that blurs the parameters of warfare.

Contemporary legal systems, according to Sir Rupert, were created within the “premise of industrial war” and are, therefore, outdated in the context of War Amongst the People, where amorphous opponents take shelter within the civilian population. Innovative rules of engagement and regulations are required to tackle these opponents and offer greater latitude for our military to accomplish its mission, unrestrained by statutes pertaining to civilian life that do not recognise the new nature of warfare.

As former British chief of staff General Sir Nicholas Houghton  puts it, the “legal and safety issues conceived for civilians in peacetime are increasingly being applied to military operations.” The ECHR, as a body of civilian laws is inconsistent with the new nature of war, is ripe for misuse by actors operating unconventional and hybrid warfare tactics. Major Charles J. Dunlap of the United States Air force has added this to hybrid warfare’s corpus of tactics: Lawfare. Dunlap understands this to be the exploitation of real, perceived, or even orchestrated incidents of abuse being used as a tool to portray Western militaries as fighting illegally or immorally, in order to affect international and local public opinion. As Britain’s centre of gravity has become its public opinion, its own legal structures and courtrooms have become tools in the hands of its opponents.

The controversy originating from the Al-Sweady Inquiry demonstrates the misuse of the ECHR to discredit the British Army. In a report published by this inquiry, the most serious allegations of unlawful killing and mistreatment brought by UK law firms Public Interest Lawyers (PIL) and Leigh Day, citing ECHR articles on behalf of former Iraqi detainees, proved to be fabricated and “without foundation.” It had been strongly suggested that these detainees were members of the Mahdi Army, a Shi’a militia that engaged British forces in Iraq, and their testimony aimed to smear the conduct of British operations. Leigh Day is accused of shredding evidence linking detainees to this insurgent group and is now facing charges of misconduct. PIL has lost its funding from the Legal Aid Agency and was forced to close in August, following an investigation by Solicitors Regulation Authority into irregularities. In another case, Serdar Mohammad, an alleged Afghan bomb maker, won an Appeal Court ruling that his detention by British personnel was illegal as it lasted marginally more than 96 hours, contravening Article 5 of the ECHR. The Al-Sweady controversy shows that ECHR can be used to tarnish the reputation of the British armed forces and the case of Serdar Mohammad exemplifies the inapplicability of the ECHR’s articles in the context of modern warfare, as understood by Sir Rupert. 

The ECHR compliments civil law enforcement in Britain, but is entirely inadequate to deal with the realities of today’s warfare. It is unreasonable to assume that British soldiers should act as law enforcement officers, while undertaking difficult and life-threatening operations in conflict zones. Derogating from Article 2 and 5 of the ECHR will allow our armed forces to confidently prosecute War Amongst the People in a more efficient and discriminatory way. Lawfare demonstrates how future opponents could attempt to manipulate our own democratic principles to safely operate against British forces; in the knowledge that they are protected by the very legal systems they seek to destroy. Financially, Britain cannot afford to continue this policy; the costs of the various probes and inquiries dealing with allegations of abuse by British personnel have risen to £150 million. These monies would be best served equipping and training our military personnel to meet the challenges of future conflicts. I applaud Mr. Fallon and Mrs. May’s stand to put an “end to the industry of vexatious claims” facing British personnel, the MoD, and the British taxpayer.    

James Watson is an Intern at the Bow Group and a postgraduate student at the London School of Economics