Interesting legal development that may affect UK warfighting in future

#1
This from the Kings College Department of War Studies blog:

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[TD] [FONT=&quot]The British Army is Officially Out of the War Business Until Further Notice[/FONT]
[FONT=&quot]Posted: 19 Jun 2013 06:14 AM PDT[/FONT]
[FONT=&quot]In the news today an announcement that families of servicemen killed in Iraq may under the Human Rights Act sue the Ministry of Defence for damages. Call it the apotheosis of post-heroic warfare. Call it reason number 359 why Britain’s participation in the European Convention on Human Rights (the alleged contravention of article 2 of which is the basis of these claims) is among the stupidest and most self-defeating acts of policy in a long while. Call it what you want.[/FONT]
[FONT=&quot]Susan Smith, mother of Private Phillip Hewitt, killed when his Snatch Land Rover was blown up in Iraq in 2005, called it ‘absolutely brilliant’. Moreover, she continued, ‘It’s really important because now they (the soldiers) can’t just be out there with no equipment… As an employer they (the MoD) have got to make sure they’re safe at work, which should have be happening from day one.’ I really feel for the families of those soldiers who are killed while doing their duty. But if that is the legal regime that the Army must work under then you might as well disband it now.[/FONT]
[FONT=&quot]Don’t get me wrong. I think that society does owe a duty of care to towards those who volunteer to put their lives in harm’s way on its behalf. I like the way Colin Powell, who has said very many smart things about war and society, put it in an interview almost 20 years ago now:[/FONT]
[FONT=&quot]They’re [the American people] prepared to take casualties. And even if they see them on live television it will make them madder. Even if they see them on live television, as long as they believe it’s for a solid purpose and for a cause that’s understandable and for a cause that has something to do with an interest of ours. They will not understand it if it can’t be explained, which is the point I have made consistently over the years. If you can’t explain it to the parents who are sending their kids, you’d better think twice about it.[1][/FONT]
[FONT=&quot]But the test that this ruling establishes is effectively unsurpassable. It is a pacifist charter and, I suspect, makes war undoable on the ground. The Supreme Court’s judgment on this matter reflects what seems to me a quite profound problem. A few years ago in a subtle inversion of the ‘parent test’ the London School of Economics professor Christopher Coker observed in a pointed essay on ‘The Unhappy Warrior’ that a society which fights postheroically will struggle to invest the death of its soldiers with the force of free sacrifice and deprive it of nobility. Even more, a soldier whose sacrifice cannot be reconciled by his own parents as other than a waste of life will find the risk of his or her own life difficult to find meaningful.[/FONT]
[FONT=&quot]So no more of this ancient guff:[/FONT]
[FONT=&quot]Except in the movies, of course. Henceforth, one presumes, it is this sort of war which will meet the accepted level of health and safety provision:[/FONT]
[FONT=&quot]It’s a reminder that the ongoing dronification of warfare is a product as much of social forces as it is technological ones. Probably the really fundamental issue here is the failure of policy, attempting to use military force to achieve things that are unachievable by military force, thus rendering the present wars strategically meaningless. But there’s also something disgraceful and ironically unhuman about the direction that the European Convention on Human Rights is pushing the actual practice of war. I’m sure it is unintended and those involved are well-meaning. But it’s just not really thought through.[/FONT]
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[FONT=&quot][1] From a 1996 interview by Barrie Dunsmore in ‘Live from the Battlefield’, in Pippa Norris (ed.), Politics and the Press: The News Media and Their Influences (London: Lynne Reiner, 1997), p. 261.[/FONT]
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Yet more ramifications of subjecting a nation's sovereignty to the will of a regional group of nations.
 

cpunk

LE
Moderator
#2
This from the Kings College Department of War Studies blog:



Yet more ramifications of subjecting a nation's sovereignty to the will of a regional group of nations.
Although I loathe and despise the political and legal institutions of the EU, I suspect that this has more to do with legal and judicial activism by British lawyers.
 
#3
I don't think this can ever work in practice. When have our forces ever been correctly kitted out and set up from day one of an Operation or conflict?

It takes time to develop kit which mets new demands. Casualties which don't seriously impact unit effectiveness will always be more acceptable to get the job done than hanging back waiting however long for appropriate kit.

What's done to mitigate the situation in the meantime is far more important and civvies will never understand the challenges.

Until politicians stop being fools (never happen) we will end up in conflicts and ops without acceptable kit at the start due to spending cuts which have taken place in the years beforehand.

I still think the politicians of the countries iivolved should duke it out on a personal level and leave us out of it.
 
#4
Although I loathe and despise the political and legal institutions of the EU, I suspect that this has more to do with legal and judicial activism by British lawyers.
I defer to your great knowledge but even so the EU provides in effect an "end run" around UK sovereignty vis-a-vis enforcing and interpreting its own laws.
 
#5
I still think the politicians of the countries iivolved should duke it out on a personal level and leave us out of it.
Especially as more and more generations of politicians come into office without having served themselves or having to send their own sons and daughters of privilege off to war.
 
#6
I've yet to read of a any Military which was 100% ready kitted out when war came. Even the Wehrmacht was preparing for a war to start in 1945-46 timeframe
 

cpunk

LE
Moderator
#7
The European Convention on Human Rights is separate to the EU and was an attempt by European nations to adopt something like the US Bill of Rights. It was incorporated into British law in 1999 by Tony Blair's government, as part of his ongoing policy of creating work for his wife and their pals in the legal profession, and has plagued us ever since.
 

sirbhp

LE
Book Reviewer
#8
dont see plane loads of troops comiong back from the sand pit do we? just middle classes chit chatter.
 
#9
The European Convention on Human Rights is separate to the EU and was an attempt by European nations to adopt something like the US Bill of Rights. It was incorporated into British law in 1999 by Tony Blair's government, as part of his ongoing policy of creating work for his wife and their pals in the legal profession, and has plagued us ever since.

Seconded on the ECHR being nothing to do with the EU. Of course trying to explain to the average broken brained UKIP supporter that the Council of Europe and the European Union are very different things is not particularly easy...

Given that the families have only been granted permission to bring a case against the MoD, and that no ruling is likely for a long time yet, I'm not sure just how much we need to worry. This strikes me rather more as a good example of the pitfalls of politicising the judiciary through the appointment process. Correct me if I'm wrong, but weren't the majority of the appointees to our new Supreme Court made under the last government. And don't they just make a lovely habit of ruling against the current one...
 
#10
#11
It is permission to start the legal process. The judges were clear on it not being a definitive win for the families. Also there are some interesting clauses such as protection for government decisions on going to war or commands done during actions. Listening to the families on the radio it was if they had won the pools and the governments heads on poles. What now, past concientious objectors claiming they were at risk and needing paying off?
 
#13
So it has a basis in ECHR, ergo it must be wrong? The nature of Justice is, it just is - courts only seek the truth, they can't manufacture it.

Could the ruling just mean the government has to share the responsibility & consequences when they decide to send soldiers into a conflict zone where their equipment proves not to be up to the job?

Usually, it's about balancing one group of people's human rights against another's. A government is still entitled to ask those, whose job it is, to risk their lives to protect the lives of the majority (even if it is questionable invading Iraq was ever likely to be justifiable in those terms). All this means is a government that does so ought to make a reasonable effort to return the favour, or take responsibility when they fail to do so.

The soldiers lost their lives, their relatives lost their loved ones, and their future earning potential. It's not fair that they alone should bear the cost for the mistake of putting them in inadequate vehicles. If it was unforeseeable and unavoidable it still wasn't the dead soldiers' fault, not that it has anything to do with blame. Our government sent them on our behalf, that makes it our, shared, responsibility.
 
#14
It is permission to sue, not a win. It's basically saying that (like everyone else) people can have recourse to the Courts-That doesn't mean that they won't get slung out on technicalities, settle out of court, or simply lose the case altogether.

Sometimes, going to court is the worst option. The Lawrence case nearly foundered on an unwise private prosecution. If military families take a badly prepared case to Court, and lose it, then its lights out.
 

ugly

LE
Moderator
#15
Despite CPUNK and I agreeing on this in the past it was pointed out to me that Winston Churchill was the first advocate of a Human Rights Bill in Europe to be law in the UK!
Shocked? I know I was!
 
#16
I defer to your great knowledge but even so the EU provides in effect an "end run" around UK sovereignty vis-a-vis enforcing and interpreting its own laws.
Where the citizens of the UK don't gain satisfaction from their own government and see the need to circumvent it, at least. It's an interesting question of whether sovereignty of the nation takes precedence over sovereignty of the people.
 
#18
Good Evening

I for one hope the families win

This is the Society that we are in today and this just reflects reality

Did not the very same law say that Soldiers on operations are bound by the laws appertaining to the UK - even though thousands of miles away on active service - visa vea the handling and treatment of suspects etc.

The Politicians and Society are just reaping what they have sown

Archie
 
#19
Good Evening

I for one hope the families win

This is the Society that we are in today and this just reflects reality

Did not the very same law say that Soldiers on operations are bound by the laws appertaining to the UK - even though thousands of miles away on active service - visa vea the handling and treatment of suspects etc.

The Politicians and Society are just reaping what they have sown

Archie
You have a point there...
 
#20
Do you think this would have been possible if a commander worried about health and safety? Royal Marines Apache Helicopter Rescue
Every act of valour in the history of the Armed Forces would not have been possible if litigation lawyers were on hand to give their "advice". I shiver to think of the possible effects that this ill-thought-through decision will have on the ethos and morale of our great nation's soldiers.
 

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