The Legal Framework of Future Military Operations: Inching Towards a More Strategic Approach?

In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.

The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.

Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.

Two main themes emerge from the report. The first is that the legal framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.

The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Indeed, if the challenge posed by legal complexity cannot be fully resolved, it becomes all the more important to employ the full range of options available to reduce its negative impact on operational effectiveness to an acceptable level, whatever that might be. While the report identifies some possible options, the Committee acknowledges that a more concerted effort is required on part of the Government to meet this challenge. The Committee also hints at the existence of a relationship between the legal framework governing military operations and the standing of the armed forces in society. In fact, a good place to start a strategic review of the law governing the conduct of military operations is to consider how one might justify claims that the armed forces should be treated differently in law than the rest of society. In addition to these general points, the following aspects of the report merit brief comment.

Staying on this side of wonderland

The Committee quietly abandoned some of the questions raised in its original call for evidence, thereby saving itself from disappearing down too many rabbit holes. In particular, it decided not to examine the effect of universal jurisdiction. It also gave short shrift to the concept of “lawfare”, noting that it found ‘no evidence that adversaries of the UK are deliberately misusing UK and international law by bringing cases under human rights law to undermine military operations’ (para 17). One wonders whether or not the Committee considered the possibility that the UK Government might engage in lawfare too. This in turn would have opened up the perplexing question as to where exactly the dividing line between a more strategic approach to lawyering and lawfare lies (for some tentative thoughts, see ‘Deployed Operations and the ECHR’).

Wisely, the Committee drew a distinction between the challenges confronting the armed forces in the application of the law and the challenges posed by the law applicable to military operations. The two are related, but nonetheless distinct issues: the first is concerned mainly with the question of legal certainty and clarity, while the second is concerned mainly with the suitability of the applicable rules.

Challenges in the application of the law

Turning to the first issue, the Committee singles out three developments which have rendered the legal framework governing deployed operations more challenging: the tension between international human rights law (IHRL) and international humanitarian law (IHL), the varied tasks pursued by the military and the need to work in coalitions. These developments present difficulties both for individual soldiers and for the armed forces as a whole. As the Committee suggests, members of the armed forces ‘need to be confident that their day-to-day decisions in operational conditions are lawful and that they are not vulnerable to personal legal challenge’ (para 30). Helpfully, the report acknowledges that civil liability for violations of IHRL and IHL rests principally with the UK and not individual soldiers and commanders. Yet service personnel and their reputations are exposed to increased legal scrutiny in other forms, for instance as witnesses in public inquiries.

Such increased scrutiny may well have an adverse effect on the operational effectives of the military. However, there seems to be little empirical evidence available in the public domain to enable a more accurate assessment to be made of the impact of legal constraints on military effectiveness and whether or not a new culture of risk aversion is taking hold among the armed forces. The Committee must therefore be applauded for calling on the Ministry of Defence to ‘identify the extent of and concern about legal developments amongst Armed Forces personnel at all levels to identify the impact on their operational effectiveness and, in particular, the willingness of personnel to accept responsibility and take necessary risks’ (para 37). This puts the spotlight on the Ministry to gather the empirical evidence which could contribute to a more informed debate about the subject.

Challenges presented by the applicable law

Turning to the second issue, the Committee identifies a number of areas where the suitability of the applicable rules of law is open to question (paras 47–86). In particular, it notes with some sympathy the concerns expressed by the Ministry of Defence about the wide and uncertain extraterritorial application of the European Convention on Human Rights, especially the burdens imposed by procedural obligations under Article 2 of the Convention and the uneasy relationship between the ECHR and IHL emerging from the European Court’s judgment in Al-Jedda.  However, it also quotes Professor Sir Adam Roberts to acknowledge the positive impact of human rights law (para 50):

To criticise the role of all law on the grounds that it hampers military operations would be to misunderstand the long-standing and important role of the law of armed conflict in this area. Even a more limited rejection of any and all application of human rights law in armed conflicts and occupations overseas would be problematic: it would deny aggrieved parties a mechanism of redress, and would invite extensive international criticism.

In this respect, it is interesting to note that the Ministry of Defence seeks to distinguish operations in Iraq from those in Afghanistan, suggesting that the ECHR does not apply to the conduct of UK forces in Afghanistan on the basis that they acted under the auspices of the International Security Assistance Force (ISAF) led by NATO (para 64). Although much depends on the facts and the submissions in each particular case, the odds of successfully defending this argument in court are not promising. The Ministry of Defence may be tempted to rely on the Kunduz case in 2012 (German text here), where the Administrative Court of Köln held that an order given by a German staff officer to launch an ISAF air strike in Afghanistan was not issued in the exercise of the German State’s sovereign authority and had to be imputed to NATO and the United Nations. However, this line of reasoning appears to place excessive faith in the discredited Behrami and Saramati cases. Whereas in Behrami and Saramati the European Court of Human Rights held that the acts of national contingents forming part of KFOR had to be attributed to the United Nations, in Al-Jedda the Strasbourg Court distinguished the legal and factual circumstances of KFOR from those prevailing in Iraq and declined to attribute the conduct of UK troops forming part of the Multinational Force in Iraq to the United Nations. Whatever the merits of this distinction are, the fact remains that the circumstances of ISAF more closely resemble those of the Multinational Force in Iraq than those of KFOR. Moreover, the idea advanced by the Administrative Court of Köln that national contingents operating as part of an international force may be exercising international rather than national competences would appear to be of limited relevance in cases where they exercise control over territory or individuals within the meaning of Al-Skeini.

Stuck in the middle…

Few would disagree with the Committee about the desirability for greater clarity and certainty in the legal framework governing the conduct of military operations. However, achieving these objectives is easier said than done. Difficulties posed by domestic law may be addressed by way of domestic legislation with relative ease. Thus, the UK Parliament may legislate to extend the scope of the doctrine of combat immunity to afford the armed forces enhanced legal protection as a matter of English law.

Challenges posed by international law are not resolved quite so quickly. Consider the relationship between IHRL and IHL. The Committee expresses its ‘support the view that the UK should take proactive steps to reconfirm the primacy, continued value and distinct nature of IHL’ (para 112). Certainly, the UK may demonstrate its appreciation of the continued value of IHL by contributing to its development and building domestic and international capacity to this end (see para 112). However, reconfirming the primacy and distinct nature of IHL presents a more difficult task. The Government may consider entering derogations under the applicable human rights treaties and may request more explicit mandates from the Security Council, yet the legal effect of these measure may be limited (see my written submissions on derogations).

Nothing illustrates the limited options available to the Government to re-calibrate the international legal framework governing the conduct of British armed forces better than the pitiful alternatives listed in the report, which include ‘seeking to replicate the legal situation as it applied in Afghanistan rather than as it applied in Iraq’ and ‘reacting to individual cases and defending them to the best of the MoD’s ability’ (para 95). In other words: seek cover in the legal haze of multinational operations and argue your corner more forcefully. Not bad pieces of advice, but they do not chime well with the Committee’s call for greater legal clarity and the need to tackle legal challenges ‘head on and in a strategic manner rather than on a case by case basis’ (para 43).

To be fair, the Committee specifically declines to take a position as to which of these solutions would be most appropriate and instead urges the Government to ‘think of these issues strategically and start to determine long-term solutions now to enable the Armed Forces to conduct armed conflict certain in the knowledge of which laws apply and how their military judgments are likely to be challenged in the future’ (para 96). This is an eminently sensible recommendation which the Government ought to consider very carefully.