‘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

The Fog of Juridification, Functionality and Everything Foreign

Wounded soldiersWe are delighted to welcome this post from Jane Rooney on the recent report published by think-tank Policy Exchange on apparent  human rights infringements during battlefield operations. Jane is the Deputy Convener of Law and Global Justice at Durham and Ph.D. candidate at Durham Law School. On 18th October 2013, think tank Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’[1] co-authored by Thomas Tugendhat and Laura Croft and which will inevitably form the basis of the next Strategic Defence and Security Review. The report was written as a reaction to Smith & Ors v The Ministry of Defence[2], a case brought to the Supreme Court by relatives of British soldiers who died whilst serving in Iraq, with the relatives successfully claiming for compensation under the Human Rights Act 1998. The report denounces the decision in this case, stating that it represents the culmination of a ‘legal siege’ over British military operations, ‘eroding freedom of movement on the battlefield.’[3]

The recommendations of the report can be summed up as proposing that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act; that the United Kingdom (UK) derogates from the European Convention on Human Rights (ECHR) during deployed operations; and that legal aid should be removed from lawsuits brought by foreign nationals against the UK government. The underlying narrative of these proposals is, firstly, that Parliament should intervene to control the ‘judicial activism’ or ‘judicial creep’ of the Courts and secondly, that ‘foreign courts’ should not be able to control domestic decision-making and foreign nationals should not be able to access English domestic courts, which form familiar rhetoric in the Conservative party agenda. But what is the main problem that the report intends to fix?

The report states that the problem is broadly that there is a creep of civilian law into the military and that international humanitarian law (IHL) provides the proper balance between protecting individuals and serving military effectiveness. In a recent blog post on the report[4] it was highlighted that the civilian law habitually applies in times of war and that they are not mutually exclusive from one another. Instead, that author pointed out that the ‘real problem’ was the effect of the extensive extraterritorial application of the ECHR and the indeterminate interrelationship between international human rights law and IHL. However, they do not constitute the problem so much as they constitute the reasons for a particular problem and again we must ask, what is the problem identified by the report?

The answer is in the Smith case itself. Two sets of claims were brought against the Ministry of Defence (MoD), the ‘Challenger claims’ and the ‘Snatch Land Rover claims’. The ‘Challenger claims’ were brought under negligence in respect of the death of one party and the injury of two others, which occurred during a friendly fire incident in a Challenger II tank taking part in the offensive on Basra in 2003. The ‘Snatch Land Rovers’ claims were brought under the Human Rights Act 1998 alleging that the MoD was in breach of the obligation to safeguard life protected by ECHR article 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations. In both instances, the MoD was found to have failed to provide adequate equipment for the protection of soldiers’ lives. In particular, Snatch Land Rovers had no protection against improvised explosive devices (IEDs) and having been withdrawn from the battlefield as the result of the death of soldiers seven months previous to the incident in question, were re-introduced by the MoD without further enquiry. The report seeks to highlight the dangers that do, and furthermore could, potentially flow as a result of enabling servicemen or women to claim against the MoD either by evading the law on Combat Immunity or claiming under the Human Rights Act.

What happens when servicemen or women or their relatives are allowed to claim against the MoD? What detriment ensues?

The first argument is that it will be expensive.  In the report, the compensation costs are not at the forefront of their concerns. It is the cost of the lawyers that will be required to act on behalf of the MoD which are of greatest concern.[5] With legal costs projected as amounting to £36 million a year, the litigation that ensues from claims against the MoD constitute another form of ‘lawfare’ attempting to cripple British security and military effectiveness.[6] Other costs identified in the report predominantly concern inquiries into the rights violations of foreign nationals in war zones which detract from the main subject matter at hand, which is whether Smith will result in an onslaught of compensation claims from injured servicemen and women and their relatives which will be financially impossible for the MoD to respond to. No figure is provided for the latter kinds of claims. We can deduce from this that this is not the main concern flowing from the Smith case. We need to look elsewhere to establish why the Smith case is so damaging to the military effectiveness of the British forces.

There are a number of assertions in the report which are paramount to explaining what the main concern is arising from the report:

“Lawsuits undermine the fundamental rationale for an armed force: the transfer of physical risk. At its core, this is what the military does. Volunteers…take up the burden of protecting society and remove the requirement for self-defence from the wider community.”[7]

Lord Hope’s reference to statements from the 2006 Parliamentary Assembly of the Council of Europe, that “members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within army ranks,”[8] is interpreted by the report as claiming that servicemen and women cannot voluntarily surrender their ECHR rights, and that the army cannot protect the rights of others if they do not have rights themselves.[9] It finds Lord Hope’s statement abhorrent stating that it is “surely wrong and demeaning to assert that Service personnel who voluntarily sacrifice some of their rights, albeit temporarily, are incapable of upholding the rights of others as a result.”[10]Aside from a blatant manipulation of words, there is the question of whether the servicemen and women (or their relatives) who attempt to bring actions against the MoD under the Human Rights Act did conceive of themselves as voluntarily surrendering all of their rights? It is most probable that they did not. But the entire assumption is that when servicemen and women conceive of themselves as having rights they pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”[11]

Having deduced the main substantive point of the report it is particularly important to acknowledge how the report has attempted to detract from what could be conceived as a very unpopular assertion: that British servicemen and women have no right to have rights.

Firstly, the report is not about human rights concerns detracting from the obligations of the military during life or death situations: the “removal of the protections once granted to those who risked all for their country”[12] or to ensure that “commanders from the most junior upwards understand that decisions made in the confusion of battle will not be held to a standard designed for those who have never known such pressures.”[13]

 Secondly, it is not about the expansive approach taken to the extraterritorial application of the ECHR. Indeed the decisions of Al Skeini and Al Jedda represented a leap forward in extending the jurisdiction of signatories to the ECHR to protect individual rights, providing the flexible ‘public powers’ model which enabled for the requisite jurisdiction to be found with regard to isolated rights violations abroad, rather than merely allowing jurisdiction to be found when a state had ‘effective control’ of the territory of another state and therefore responsible for all rights violations in that territory, a much higher threshold to meet. However, engaging in an analysis of how one could attempt to limit the liability of states under the ECHR when acting abroad by invoking Article 15 ECHR, which allows for a state to derogate from most rights in ‘times of war or other public emergency threatening the life of the nation’, is a point of concern.[14]

The extraterritoriality jurisprudence was invoked in order to explain how it was that the Smith case ever became possible and we still have to make a value judgment about whether we agree or disagree with what Smith entails. Furthermore, applying Article 15 extraterritorially is not an impossibility. The Court merely stated in Bankovic, remarking upon the extraterritorial application of Article 15, that “Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.”[15] Because of the expansion of the concept of jurisdiction under the ECHR, Article 15 could potentially be applied in the circumstances in Smith. (Even though on closer examination, ‘threatening the life of the nation’ could infer that Article 15 could only be applied domestically). One must think of the implications of enabling this provision to be effective. It would represent a very serious roll-back in human rights protection and the enforcement of state responsibility when states act abroad. Again, we must shift the emphasis away from the fact of extraterritoriality, which has not necessarily proved to be detrimental to military effectiveness itself, and look more closely at the ‘problems’ that purport to ensue from what it has enabled – the Smith case.

Thirdly, the report is not about ‘juridification’ of the military.[16] It is not about the myriad of assaults that the judiciary has allegedly committed against the military from many different fronts, with one facet being that it empowers servicemen and women to bring actions against the MoD. It is about the threat of a changing ethos which is admittedly facilitated by the judiciary, an ethos which propounds the humanity of soldiers fighting on the ground and the empowerment of those individuals to see themselves as such. Furthermore, the term ‘juridification’ is used to imply that it is self-evidently a bad thing and it is a reason not to trust any eventualities that flow from it. It is a reason not to afford rights to servicemen because those rights come from juridification. It is necessary to look behind this term and look at the substantive results of it in order to evaluate whether it does encroach upon the effectiveness of the military.

A smoke screen of juridification, foreign courts, foreign nationals, and functionality have effectively obscured the main substantive point of the report. It is necessary that the fog is parted and that the newly found rights protection for British servicemen and women, who are afforded inadequate equipment for their own physical safety when carrying out military operations abroad, remains intact.


[1] Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange 2013

[2] Smith & Ors v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

[3] The Fog of Law (n 1, p. 11)

[4] Aurel Sari, ‘Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?’ http://www.ejiltalk.org/author/asari/

[5] The Fog of Law (n 1, p. 35)

[6] Ibid.

[7] Ibid. p. 18

[8] Lord Hope, para 53, 54: Smith and Others v The Ministry of Defence [2013] UKSC 41

[9] Ibid. p. 31

[10] Ibid. p. 31

[11] Ibid. p. 11

[12] Ibid. p. 10

[13] Ibid. p. 11

[14] Better Get a Lawyer, n 4

[15] Banković and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, para 62

[16] Ibid. p. 16

The Fog of Juridification, Functionality and Everything Foreign