British army vs European Convention on Human Rights

[Adder]

Time to fly the Union Jack...

https://www.theguardian.com/uk-news/201 ... man-rights

Plan for UK military to opt out of European convention on human rights
PM and defence secretary will announce idea for future conflicts to curb an ‘industry of vexatious claims’ against soldiers

Peter Walker and Owen Bowcott
Tuesday 4 October 2016 07.17 BST


Controversial plans for the military to opt out from the European convention on human rights (ECHR) during future conflicts will be introduced by ministers, to see off what the prime minister described as an “industry of vexatious claims” against soldiers.

The long-mooted idea will be announced on Tuesday at the Conservative party conference by Theresa May and the defence secretary, Michael Fallon, although it was immediately criticised by human rights groups who said it was based on a false narrative of spurious lawsuits.

May said the change would “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. It would be implemented by introducing a “presumption to derogate” from the ECHR in warfare.

Fallon, in comments released ahead of his conference speech, said: “Our legal system has been abused to level false charges against our troops on an industrial scale.”

He added: “It has caused significant distress to people who risked their lives to protect us, it has cost the taxpayer millions and there is a real risk it will stop our armed forces doing their job.”


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The military and some right-leaning thinktanks have long pushed for the move, arguing that a series of court cases focused on the actions of UK troops in Iraq and Afghanistan has cost the Ministry of Defence (MoD) huge sums.

The government says the litigation has cost the MoD more than £100m since 2004. Ministers say this has happened because the jurisdiction of the ECHR has been extended to conflict zones, in part due to the efforts of a handful of law firms.

Derogating from the ECHR in times of war or public emergency is permitted under the rules of the Council of Europe, which oversees the Strasbourg-based institution.

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Certain key convention rights – such as the prohibition against torture – nonetheless remain in place even if the secretary general of the Council of Europe has been informed in advance of a temporary derogation.

The UK is not the first nation to take this step. Ukraine gave notice of a derogation in June 2015, in relation to the fighting on its border with Russia. France signalled it would derogate in the immediate aftermath of the jihadist massacres at the Bataclan nightclub in Paris last November. Turkey lodged a similar notice following the failed military coup in July.

The UK has also previously notified the Council of Europe of a succession of temporary derogations in relation to the Troubles in Northern Ireland during the 1970s.

The government has already lodged complaints with the Solicitors Regulation Authority (SRA) against two law firms, Leigh Day and Public Interest Lawyers, for the way in which they pursued actions against the MoD and soldiers who fought in Iraq and Afghanistan.



The Liberty director, Martha Spurrier, said the derogation plans would make Britain appear a hypocrite internationally. Photograph: David Levene for the Guardian
However, Martha Spurrier, the director of Liberty, argued that the majority of rights claims against the military were not vexatious, and were connected to protections which could not be derogated, such as prohibition of torture.

“The MoD has been forced to settle hundreds of cases of abuse, which speaks to mistreatment on the battlefield that we should be trying to eradicate, not permit,” she said.


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Derogation could only happen during war or public emergencies that threaten the life of the nation, Spurrier said, adding: “There is a dark irony in our government proposing derogation in wars of its choosing, even though many of those conflicts, like in Iraq and Afghanistan, are fought ostensibly in the name of human rights.

“The truth is that derogation will protect no one except those at the MoD with something to hide. It will make us hypocrites on the international stage and embolden our enemies to capitalise on our double standards.

“If ministers held our troops in the high regard they claim, they would not do them the disrespect of implying they can’t abide by human rights standards. For a supposedly civilised nation, this is a pernicious and retrograde step.”

Writing in the Guardian on Monday, Rev Nicholas Mercer, formerly a lieutenant colonel and senior legal military adviser to the 1st Armoured Division during the Iraq war, attacked the government for inventing an “orchestrated narrative”.

“The idea that the claims are largely spurious is nonsense,” he wrote. “The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up.”

The Law Society, which represents solicitors in England and Wales, has also accused the government of attempting to undermine the rule of law by intimidating solicitors who pursue legitimate cases.

Its president, Robert Bourns, said last month: “Lawyers must not be hindered or intimidated in carrying out their professional duties and acting in the best interests of their clients within the law. They should not be identified with their clients or clients’ cases. This principle is set out in the United Nations basic principles on the role of lawyers.”

[rowan]

Surprise, surprise. The US and Israel have never taken any notice of human rights anyway. You'll never seen these countries prosecuted for anything.

https://cultureandpolitics.org/2016/10/ ... nst-syria/

[Which Tyler]

Not terribly surprising - didn't May want to take the entirety of the country out of the ECHR?
Just taking the military out seems like an act of compromise for her; despicable, but less so than what she wanted.

[Sandydragon]

Not terribly surprising - didn't May want to take the entirety of the country out of the ECHR?
Just taking the military out seems like an act of compromise for her; despicable, but less so than what she wanted.

Why despicable? There are already many legal constraints to how the British armed forces operate, most importantly the laws of armed conflict (which other nations seem to ignore at will but never mind). All British military personnel are well briefed on their obligations under LOAC, the ECHR element is largely pointless.

May wants to get rid of the daft situation where British servicemen are investigated, cleared and then re-investigated a decade later when a legal firm makes up some evidence. All the ECHR gave was an opportunity for lawyers to make money off spurious complaints.

[morepork]

Jesus.

[OptimisticJock]

Mary

[Sandydragon]

Jesus.

Feel free to elaborate.

[morepork]

Thanks.

I think May just earned a place at the board of directors somewhere in a few years time. Once less pesky impediment to unilateral bad decisions.

[Digby]

Ex PMs being otherwise hard pressed to find work on various boards?

[morepork]

Ex PMs being otherwise hard pressed to find work on various boards?

It makes things so much easier if they are pliant.

[Digby]

Ex PMs being otherwise hard pressed to find work on various boards?

It makes things so much easier if they are pliant.

To join some boards and others less so. This latest may or mayn't be a good idea, but I doubt she was worried about having things to do once her time in Number 10 is up

[morepork]

I think you get the point.

[Eugene Wrayburn]

I think you get the point.

It's just a bad one.

All the bits of the ECHR that really matter in a war zone will still be in force - protection against torture etc - but given that most of the jurisprudence is about process, I can see how a war zone isn't necessarily the place to enforce some of the stricter rigours of questioning procedure for example.

What I'm expecting however is a monumental cock up of implementation probably around failing to define "war" in a way restrictive enough to satisfy the courts.

[morepork]

Obvious isn't the same as bad.

[OptimisticJock]

I think you get the point.

It's just a bad one.

All the bits of the ECHR that really matter in a war zone will still be in force - protection against torture etc - but given that most of the jurisprudence is about process, I can see how a war zone isn't necessarily the place to enforce some of the stricter rigours of questioning procedure for example.

What I'm expecting however is a monumental cock up of implementation probably around failing to define "war" in a way restrictive enough to satisfy the courts.

I don't really see it as an issue what the definition is. Everytime HM Forces are deployed theyre subject to several different laws. The ECHR is not something they bother training you with as, as has been previously mentioned, everything relevant is covered elsewhere.

[Eugene Wrayburn]

Obvious isn't the same as bad.

No it's not and I chose the one I meant.

[morepork]

OK lawboy.

[Sandydragon]

I think you get the point.

It's just a bad one.

All the bits of the ECHR that really matter in a war zone will still be in force - protection against torture etc - but given that most of the jurisprudence is about process, I can see how a war zone isn't necessarily the place to enforce some of the stricter rigours of questioning procedure for example.

What I'm expecting however is a monumental cock up of implementation probably around failing to define "war" in a way restrictive enough to satisfy the courts.

Exactly.

The laws of armed conflict will still apply. The armed forces act will still apply.

You rightly point out that a conflict environment is a long way removed from the safe and controlled civilian environment where ECHR was designed to work.

[Eugene Wrayburn]

One problem is that we ask our army to do so much of what wouldn't have been conventionally considered to be warfare - such as supporting law and order.

[Sandydragon]

One problem is that we ask our army to do so much of what wouldn't have been conventionally considered to be warfare - such as supporting law and order.

I'd amend that a bit by suggesting that traditional concepts of what is a conflict rarely apply any more. Many of the concepts and legal aspects of warfare were designed with state on state conflict in mind. Very few of the wars the British military have fought in the past few decades fall into that bracket. In particular, the definition of a combatant needs revising. Uniformed personnel (aside from medics and religious personnel) are combatants, unless POWs or injured, but what about the non-uniformed participants. The current definition of a militia is worthless. This leads to a whole debate over prisoners of war. Are captured Taliban fighters POWs or terrorists? The rules differ hugely for how both are treated according to how the UK operates.

[SerjeantWildgoose]

Are captured Taliban fighters POWs or terrorists? The rules differ hugely for how both are treated according to how the UK operates.

Sorry s-d, but it fecking well shouldn't and it doesn't! A captured combatant becomes hors de combat and must be regarded as a prisoner, regardless of whether he is a Taliban fighter, an Iraqi regular or a dissident republican terrorist. Individual soldiers of the British Army sometimes forgot this during the campaigns in Iraq and Afghanistan and some of their officers forgot their command responsibility and allowed abuses to happen. I did a lot of research on this while on the staff at RMAS and we should not hide from the fact that sometimes our soldiers do not live up to the standards that we demand of them.

I think that this debate is slightly missing the point. New legislation will not to absolve the Army of the moral checks and balances that under UK and international law it must apply under any circumstances. It recognises that under UK and international law, we have enough legislation to deal with those who fail to meet their obligations and responsibilities in the Army's application of lethal force (And having studied the circumstances leading to the killing of Baha Mousa, and the subsequent investigations, I can say that we are capable of applying UK legislation exhaustively and with rigour). What I believe the Government is seeking to do is to close the loophole that allows lawyers to bring vexatious and groundless complaints before civilian courts and to encourage an overwhelming flood of such complaints by offering no win, no fee terms. And good thing, too.

[SerjeantWildgoose]

One problem is that we ask our army to do so much of what wouldn't have been conventionally considered to be warfare - such as supporting law and order.

An American general coined the phrase 'The 4-Block Model', his theory being that an American soldier should be sufficiently well-trained so that in the space of a patrol along 4 city blocks he could transition from conventional warfighting, to peace-keeping, to counter-insurgency, to policing. I can remember speaking to a Norwegian officer in Sarajevo who felt quite sure that this was impossible. I suspect that the views of both officers had more than a grain of truth about them.

The British Infantryman tends to be recruited from the lowest academically competent strata of the recruit pool. Are we asking too much of him when we expect him to make split-second life-or-death decisions knowing that if he makes the wrong decision he will be hounded to his grave by lawyers?

I was once told that it is the politicians job to make sure we fight the right wars; and the generals job to make sure we fight the wars right. I am of the view that if the politicians get it wrong, no amount of work by the generals can make it right; and I wonder whether any of these waves of legal actions would be tolerated if the British public felt that the invasion and occupation of Iraq had been legitimate?

[Sandydragon]

Are captured Taliban fighters POWs or terrorists? The rules differ hugely for how both are treated according to how the UK operates.

Sorry s-d, but it fecking well shouldn't and it doesn't! A captured combatant becomes hors de combat and must be regarded as a prisoner, regardless of whether he is a Taliban fighter, an Iraqi regular or a dissident republican terrorist. Individual soldiers of the British Army sometimes forgot this during the campaigns in Iraq and Afghanistan and some of their officers forgot their command responsibility and allowed abuses to happen. I did a lot of research on this while on the staff at RMAS and we should not hide from the fact that sometimes our soldiers do not live up to the standards that we demand of them.

I think that this debate is slightly missing the point. New legislation will not to absolve the Army of the moral checks and balances that under UK and international law it must apply under any circumstances. It recognises that under UK and international law, we have enough legislation to deal with those who fail to meet their obligations and responsibilities in the Army's application of lethal force (And having studied the circumstances leading to the killing of Baha Mousa, and the subsequent investigations, I can say that we are capable of applying UK legislation exhaustively and with rigour). What I believe the Government is seeking to do is to close the loophole that allows lawyers to bring vexatious and groundless complaints before civilian courts and to encourage an overwhelming flood of such complaints by offering no win, no fee terms. And good thing, too.

I think we are at cross purposes. My argument is not about how captured enemy combatants are treated in terms of abuse, that should be beyond reproach at all times. My point is the legal difference between a POW and a criminal in custody, which is what a captured terrorist effectively is. The difference is how a POW is processed and the ability to detain a enemy combatant without necessarily pressing charges, compared to a criminal and the inherent rights they enjoy as a result and the manner in which a prosecution needs to be built. There are legal differences between the two categories which have led to nonsense like captured Taleban fighters suing the U.K. Government for detention when they weren't charged with a crime against U.K. Law, and the fact that we couldn't release them to Afghan authorities because of concerns over their human rights. That's the point that needs clarification, not that non combatants should be treated with the required level of respect and dignity.

[Sandydragon]

One problem is that we ask our army to do so much of what wouldn't have been conventionally considered to be warfare - such as supporting law and order.

An American general coined the phrase 'The 4-Block Model', his theory being that an American soldier should be sufficiently well-trained so that in the space of a patrol along 4 city blocks he could transition from conventional warfighting, to peace-keeping, to counter-insurgency, to policing. I can remember speaking to a Norwegian officer in Sarajevo who felt quite sure that this was impossible. I suspect that the views of both officers had more than a grain of truth about them.

The British Infantryman tends to be recruited from the lowest academically competent strata of the recruit pool. Are we asking too much of him when we expect him to make split-second life-or-death decisions knowing that if he makes the wrong decision he will be hounded to his grave by lawyers?

I was once told that it is the politicians job to make sure we fight the right wars; and the generals job to make sure we fight the wars right. I am of the view that if the politicians get it wrong, no amount of work by the generals can make it right; and I wonder whether any of these waves of legal actions would be tolerated if the British public felt that the invasion and occupation of Iraq had been legitimate?

I'd challenge someone with a PhD to make a shoot or no shoot decision over one hundred instances and get it right. Any decision can be ripped apart with the benefit of hindsight. Armed police officers routinely get the same problem, although they are hampered by ROE that are less clear than the ones we operated with.

[OptimisticJock]

One problem is that we ask our army to do so much of what wouldn't have been conventionally considered to be warfare - such as supporting law and order.

An American general coined the phrase 'The 4-Block Model', his theory being that an American soldier should be sufficiently well-trained so that in the space of a patrol along 4 city blocks he could transition from conventional warfighting, to peace-keeping, to counter-insurgency, to policing. I can remember speaking to a Norwegian officer in Sarajevo who felt quite sure that this was impossible. I suspect that the views of both officers had more than a grain of truth about them.

The British Infantryman tends to be recruited from the lowest academically competent strata of the recruit pool. Are we asking too much of him when we expect him to make split-second life-or-death decisions knowing that if he makes the wrong decision he will be hounded to his grave by lawyers?

I was once told that it is the politicians job to make sure we fight the right wars; and the generals job to make sure we fight the wars right. I am of the view that if the politicians get it wrong, no amount of work by the generals can make it right; and I wonder whether any of these waves of legal actions would be tolerated if the British public felt that the invasion and occupation of Iraq had been legitimate?

Sandy has got in before me but someone with a formal education doesn't fair any better in a split second decision.