‘Clearing the Fog’ Recommends ‘No fault’ Full Compensation

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We are delighted to welcome back Jane Rooney, a PhD candidate at Durham Law School and Deputy Co-Convenor (PGR) of the Centre for Law and Global Justice. On 30th March 2015, Policy Exchange, a UK-based think tank, released its latest report on the impact of human rights on British military effectiveness abroad. This post criticizes the new Report’s recommendation to prevent relatives of military personnel – killed abroad in the course of military operations due to negligence by the Ministry of Defence (MoD) – from having access to actions under the Human Rights Act 1998 (HRA) and in tort. Instead the Report recommends paying more compensation to relatives of military personnel killed in the course of military operations abroad.

In October 2013 Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ co-authored by Thomas Tugendhat and Laura Croft. The report outlined concerns that human rights litigation may have a negative impact on the effectiveness of British military operations abroad. The report was published in reaction to the Smith & Ors v The Ministry of Defence (MoD) case, a case which considered claims against the MoD for negligence and violations of the Human Rights Act 1998 (HRA) at the Supreme Court of the United Kingdom by relatives of British soldiers who died whilst serving in Iraq. I have previously argued that the main proposition in the report was that in affording British military personnel the protection of the HRA abroad – legislation which gives effect to the European Convention on Human Rights (ECHR) in the UK – Smith threatened to undermine a ‘fundamental rationale’ underlying the armed force: ‘the transfer of physical risk’ from civilians to individuals who had volunteered to fight on behalf of their country. The report explained how the ruling in Smith was made possible by the ‘judicial creep’, in both UK domestic courts and at the European Court of Human Rights (ECtHR), of civilian law to British military operations abroad. The report recommended that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act and that the UK derogate from the ECHR during deployed operations so that International Humanitarian Law (IHL) standards would apply instead of the ECHR.

On 30th March 2015, Policy Exchange released another report, ‘Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat’, co-authored by Richard Ekins, Jonathan Morgan and Tom Tugendhat. This report is different from the 2013 report.  It still recommends derogations from the ECHR in future operations abroad and the revival of the Armed Forces’ Crown Immunity from actions in tort. Furthermore, it still advocates the primacy of IHL over human rights law on the battlefield: it recommends that the Government make an ‘authoritative pronouncement of state policy’ that this is case and that the Government support the International Committee of the Red Cross to strengthen the protections afforded by the Geneva Conventions. However, it details changes that should be made in relation to military personnel: it recommends that the Government introduce primary legislation prohibiting military personnel from relying on the right to life under the ECHR, and recommends instead that the ‘Government should undertake to pay compensation, on the full tort “restoration” measure, to all military personnel killed or wounded during active operations – without need to prove fault’.

I have previously outlined that derogations are not the answer to problems arising from applying human rights in the battlefield. Furthermore, IHL is no longer considered as a lex specialis body of law in relation to human rights law. This is illustrated by the case law of the International Court of Justice and by the ECtHR decision in Hassan v United Kingdom (summarized here). The 2015 Report welcomed and praised the decision in Hassan v United Kingdom for taking into consideration IHL in determining the substance of the Article 5 right to liberty and security when detaining enemy combats abroad, but expressed fears that this sympathetic approach to military operations was only a temporary development and would not necessarily be continued by the ECtHR. Generally speaking, therefore, nothing would be gained from derogating from the ECHR during conflict abroad or exclusively applying IHL abroad. Furthermore, the ECHR should continue carrying out its function as an accountability mechanism for state activity, at home and abroad.

Here, I will briefly posit thoughts on a much narrower point: the recommendation that the Government should legislate to deny military personnel access to Article 2 right to life under the ECHR and restore Crown immunity for the armed forces in tort. Instead, the Report proposes paying compensation on the full tort “restoration” measure to all military personnel killed or wounded during active operations – without need to prove fault. The Report highlights that its main reason for advocating to prevent actions being brought under the HRA or under the tort of negligence is not because of the cost of those trials, but because of the public scrutiny:

Whether or not the judge upholds the claimant’s allegations, they will have been examined with necessary public criticism of the acts and decisions of soldiers, commanders, planners and others, as the claimant attempts to prove his case. This public examination is what produces a hyper-cautious mindset (at 38).

The inquiry into fault is thus damaging because of the public scrutiny and accountability of those who are at fault. Instead, the Report proposes paying more compensation to injured soldiers and their families (at 39). The government will pay compensation ‘irrespective of fault’ (at 39). The Report states that ‘this would remove the financial incentive to bring claims’ (at 39). However, it concedes that ‘some claimants may be motivated by wider notions of justice’ but offers no answer to this concern (at 39). This scheme would not save money, in fact the Report concedes that it would probably cost more money (at 39).

The scheme appears to propose to ‘pay off’ families of military personnel who want an investigation into the death of their loved ones instead of enabling them to access legal justice. However, much evidence suggests that those relatives of victims of negligence in the Smith case were after more than money. Smith merely established that allegations of negligence could be investigated and given a hearing. No damages have been awarded yet and a hearing on the facts has not yet taken place. However, Susan Smith, an applicant in the case, hailed the decision as a victory. Debi Allbutt, the widow of Cpl Stephen Allbutt, one of the victims concerned in the Smith case, stated that: “We want combat immunity thrown out of the rulebook, so instead of soldiers having to sue the Ministry of Defence, the equipment and the training will be in place to stop things like this happening again.” Under these circumstances it might be presumed that those involved in the Smith case, for example, may have ‘wider notions of justice’ than merely receiving a large some of compensation.

The insistence upon a new scheme which comes at a financial cost to the MoD could be construed as an effort to gain political points in undermining the judiciary and human rights. For example, the concern that public scrutiny ensuing from court hearings would negatively affect the armed forces appears not to be a concern in other places in the Report:

These are political matters for which Ministers should be held to account by Parliament and through Parliament to the electorate. Certainly, many MPs have expressed concerns about the under-equipment of soldiers in Iraq (at 37).

This seems contrary to the Report’s concerns about public scrutiny which were posited in justification for not allowing negligence and human rights cases to go to court. Here the Report advocates that the electorate should be able to hold those at fault to account. This undermines the argument that the judiciary should not be able to hold those at fault to account due to public scrutiny.

This post, above all, aims to hold Policy Exchange to account for what it has proposed. The Report’s main proposition is not to deny that human rights apply abroad, as seems to be the main point picked up by media; its main proposition is for no one to be blamed, and nothing to be improved, in relation to the deaths of military personnel on the battlefield. Instead, it wishes to sweep these claims under the carpet by paying off relatives of victims.

‘Clearing the Fog’ Recommends ‘No fault’ Full Compensation

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize

Contrary to many predictions this year’s Nobel Prize has gone to an international institution, the Organization for the Prohibition of Chemical Weapons (OPCW). Several organisations have won the prize before including, the UN, Médecins Sans Frontières, the International Labour Organisation, and controversially, in 2012 the EU. The OPCW is an organisation tackling a very particular issue, the dismantlement of Chemical Weapons. Awarding the Peace Prize to this form of organisation is somewhat rare though examples such as International Campaign to Ban Landmines (ICBL) and the Intergovernmental Panel on Climate Change (IPCC) provide some precedent for the choice. Of course, the OPCW has come to recent prominence due to the chemical attacks in Syria and Security Council Resolution 2118 which specifically requires Syria to co-operate with the OPCW in the destruction of its chemical weapons stockpiles. Although the Nobel’s Committee were clear that it was not just for this reason that they received the award. Indeed, disarmament is specifically mentioned in Alfred Nobel’s will.

The OPCW established in 1997, is a relatively new organisation, although a ban on the use of Chemical Weapons dates from 1925 under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The organisation itself emerged from the Chemical Weapons Convention which went further than simply banning their use but also a prohibition on the development, production, stockpiling and use of chemical weapons as well as their destruction. It has 189 state signatories, thus simply on numbers a very successful treaty. Of the non-signatories the wrangling between Egypt and Israel is one of the more interesting turns with the former promising to ratify if the latter signs the Treaty on the Non-Proliferation of Nuclear Weapons. Israel has stated that it will ratify the CWC if other non-parties in the region do so as well.

From their widespread use by all sides in World War I, the use of chemical weapons was almost immediately considered to be beyond the pale. Their indiscriminate nature, long-term effects and the suffering of those exposed to them meant that they were abhorred almost immediately after their first modern use in 1914. Chemical warfare was used both during and after the War though the latter occasions were generally outside of Europe by colonial forces against uprisings. Most notoriously by Mussolini’s forces in Ethiopia and Japanese forces in China, despite the 1925 Protocol. Their use in Yemen in 1963, in the Iran-Iraq War, by Iraq against the Kurds in 1988 remained the most high-profile state uses of these weapons until the recent attacks in Syria. While several terrorists groups, most notoriously Aum Shinrikyo’S use of Sarin gas in Tokyo in 1994 and 1995 also showed their devastating character. The Nobel Committee clearly stated that other uses of chemical weapons outside of warfare such as its use in the murder of millions in concentration camps during World War II also forms part of the importance of the organisation and its activities.

The Panel makes quite clear that the awarding of the prize should also bring attention to the lack of co-operation that the OPCW has experienced from states that hold chemical weapons stockpiles and are signatories to the Convention particularly regarding  the deadline for their destruction;

Certain states have not observed the deadline, which  was April 2012, for destroying their chemical weapons. This applies especially to the USA and Russia.

Given that the USA was at the forefront of the condemnation of Syria’s use of chemical weapons and Russia was its primary defender (though they disputed that it was the Syrian State that used the weapons) this is an important statement. The USA’s violation of its own international legal obligations regarding the holding of chemical weapons somewhat lessons its ability to engage in finger wagging.

The OPCW’s current activities in Syria now comes under more intense and renewed scrutiny. This places more pressure on the Organisation to succeed in meeting the nearing deadline for the completion of the disarmament task. Arguably their success in this activity ought not to be the basis on which this choice by the Nobel Committee is measured. Like many international organisations and unlike well known bodies such as the UN or the IMF, their activities often go unnoticed and their record of success in the destruction of these chemical stockpiles and monitoring of their potential creation is a more suitable basis for evaluation. While their may be some surprise that high profile individuals had not received the award, this choice emphasises the importance of international co-operation in the creation of law and organisations that hold back some of war’s worst excesses and fulfills Nobel’s intention to recognise the importance of disarmament in the maintenance of peace.

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize