The Fog of Law

Eirik Bjorge and Marko Milanovic have written trenchant critiques of the Policy Exchange Report: Clearing the Fog of Law. They have pointed out the Report’s flaws with regard to the travaux of the Convention, the intention of the drafters, the evolution of the case-law on extraterritoriality, and the relationship between human rights law and the law of war. I wish to add three small points to the discussion.

First, it is worth dwelling on the Report’s subtitle: ‘Saving our Armed Forces from Defeat by Judicial Diktat.’ All of us who write, whether in the academy or policy-circles, face the challenge of thinking up interesting titles for our pieces, predominantly in the hope that they will be read. We are not always successful. But to retreat to hysterical overstatement is no solution, especially when it rests on flawed analysis and insufficiently motivated argument. Leaving aside the strained relationship between the parochial ‘our’ in the sub-title and the purposes of academic freedom, the Report produces little evidence of any real threat of grave defeat. We are simply told that the ‘spectre’ of the ‘imperial judiciary’ now ‘haunts’ commanders; that the departure from the European Court of Human Rights’ decision in Bankovic and its decision in Al-Jedda entail ‘human rights imperialism’ and ‘judicial imperialism’ respectively; and that the UK Supreme Court’s decision in Smith has already ‘compromised the warfighting capabilities of the British Armed Forces.’

Second, there is an obvious disjuncture in the Report between cases such as Smith involving British troops and cases such as Al-Skeini involving foreign citizens. In response to the second class of cases, the authors argue that their intention isn’t to make the law fall silent amid the clash of arms but to apply and strengthen the laws of war. In response to the first class – Smith and its ilk – this is not an option: there is no Geneva Convention V for the Amelioration of the Rights of State Parties’ Own Soldiers. Instead, the authors argue that the common law principle of combat immunity should be reinstated with a bumped-up system of no-fault compensation. This is said to be necessary to protect the combat effectiveness of the armed forces and the UK’s overarching constitutional settlement.

A few arguments might be raised against the view that combat immunity ought to be restored in cases brought by British troops and that Smith is a devastating threat to the armed forces and the UK’s constitutional settlement. One, the decision of the Supreme Court in Smith is narrow in allowing the claims to go forward – the judgment is shot through with caution, an appreciation of the dynamic conditions of the battlefield, the potential burdens to be placed on commanders, and the need for deference. Two, we might look to a related environment of complicated decision-making informed by dynamic risks and sensitive resource constraints: police law. The authors put forward no evidence that the embrace since Osman of Article 2 ECHR claims against the police, if not common law negligence claims, has unduly hampered effective police practice. Three, the constant pitching of the clash as between the military and the courts is simplistic. By definition, these cases are brought by members of the military or wider military community. It’s one thing to quote the opposition of Vice Chief of the Air Defence Staff, Air Chief Marshal Sir Stuart Peach. It is another to consider the views of Private Jason Smith’s mother, who pursued an Article 2-compliant inquest for 10 years following the death of her son. Four, at the level of principle, the authors are too quick to deny the force of Entick v Carrington – the idea, as Lord Hope put it in Smith, that ‘the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs.’ Smith is a small step on a long walk away from a culture of authority towards a culture of justification.

Third, in respect of the set of cases that involve the exercise of force by British troops over foreign citizens, what is missing from the Report is those foreign citizens themselves. Of course, they exist, but they exist only as case-names: Al-Skeini and Others; Hassan; Al-Jedda. They do not exist as people – as Hazim Al-Skeini, Muhammad Salim, Hannan Shmailawi, Waleed Fayay Muzban, Ahmed Jabbar Kareem Ali, Baha Mousa, Tarek Hassan, or Hilal Abdul-Razzaq Ali Al-Jedda. This nominative point is indicative of the deeper moral issue. The authors refuse to grapple with the different moral valences of human rights law and the laws of war – the key difference being the role of military necessity in the latter. It is not enough to tell us that human rights law would place additional constraints on the armed forces or that commanders would need to be more conscious of risks to soldiers and civilians. They need to show us that this would be a bad thing.

No doubt the Report will be picked up in political and policy circles and read with an eye on the impressive credentials of the authors. We can only hope that those reading it also engage with its flaws.