Is the Military Legally Encircled?
2008; Taylor & Francis; Volume: 8; Issue: 1 Linguagem: Inglês
10.1080/14702430701812068
ISSN1743-9698
Autores Tópico(s)International Law and Human Rights
ResumoClick to increase image sizeClick to decrease image size Notes Earlier versions of this paper were presented at Oxford University in autumn 2006, under the auspices of the Strategic Studies Group and the Leverhulme Changing Character of War Programme, and at the Sussex Law School in spring 2007. I am grateful to the participants of those seminars for their helpful questions and comments. I also thank the following individuals for useful comments on drafts of the paper: Craig Barker, Sandy Ghandhi, Alexandra Gheciu, Anneke Smit and David Whetham. Comments on this article are welcome: email 〈cwaters@uwindsor.ca〉. 1 J. Booth, ‘Military Top Brass attack soldier prosecutions’, Times Online, 14 July 2005 〈http://e-paper.timesonline.co.uk/tol/news/uk/article544087.ece〉. 2 Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1236. 3 See for example, ‘Soldiering – The Military Covenant’, Chapter 2 – ‘Law’, 〈www.army.mod.uk/servingsoldier/usefulinfo/valuesgeneral/adp5milcov/ss_hrpers_values_adp5_0_w.html〉. The Covenant states that ‘By placing more emphasis on individual rights than on collective responsibility, much domestic and European legislation may impact adversely on the operational effectiveness of the Army.’ 4 See, for example, the remarks of Patrick Mercer, as cited in S. Rayment, ‘British troops in Iraq are afraid to open fire, secret MoD report confirms’, Daily Telegraph, 29 April 2006. 5 See, for example, M. Hastings, ‘The Army’s Deadliest Enemy is at Home’, Sunday Telegraph, 22 Jan. 2006) 20 and ‘Not Fit to Polish His Boots’, Daily Mail, 15 Feb. 2007, p.1. 6 While exemptions are given to the armed forces in limited areas (with respect to working time regulations on board naval ships, for example) the default position is that the regular regulatory schemes binding employers – including the Health and Safety at Work Act 1974 – apply. 7 MOD, Claims: Annual Report 2005/2006 (July 2006) p.3: 〈www.mod.uk/NR/rdonlyres/5A077EA5-2E36-415B-9F1A-15EC0BEC094B/0/claims_annual_report_0506.pdf〉 8 Ibid. p.5. 9 Ibid. 10 BBC News, ‘Gulf war veteran wins test appeal’,1 Nov. 2005: 〈http://news.bbc.co.uk/2/hi/uk_news/england/beds/bucks/herts/4394436.stm〉. 11 Following the 1987 Crown Proceedings Act. Negligence cases have been brought on the basis of, among other things, the military’s failure to adequately prevent or treat post‐traumatic stress disorder. 12 See, for example, M. Evans, ‘US agrees to hand over tape of attack on British convoy’, The Times, 7 Feb. 2007. 13 House of Commons Defence Committee, Duty of Care, Third Report of Session 2004–2005: 〈http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/14_03_05_deepcut_def_cttee.pdf〉. 14 See 〈www.bloody-sunday-inquiry.org.uk/〉. 15 Rayment (note 4). 16 See Article 17 of the 1998 Rome Statute of the International Criminal Court. 17 ‘Soldiering – The Military Covenant’, Chapter 2 – ‘Law’ (note 3) including ‘ambulance chasing’ British lawyers who have represented clients suing the MoD for the actions of the British Army in Iraq: J. Doward, ‘Lawyers ‘besiege’ army over Iraq abuse’, The Observer, 24 July 2005: 〈http://observer.guardian.co.uk/uk_news/story/0,6903,1535031,00.html〉. 18 See C.J. Dunlap, ‘It Ain’t No TV Show: JAGS and Modern Miltary Operations’ (2003) 4 Chi. J Int’l L p.479. 19 M.J. Frank, ‘US Military Courts and the War in Iraq’ (2006) 39 V and J Transnat’l L p.645. 20 A. Gillan and R. Norton‐Taylor, ‘Angry soldiers demand “trade” federation’, The Guardian, 26 Jan. 2006, p.1. 21 See www.arse.co.uk. Comment posted on 15 Feb. 2006 to thread Law in Action, Radio 4, Tues. 14 Feb. 22 See T. Harding, ‘Colonel “victim of witch‐hunt”’, The Daily Telegraph, 15 Feb. 2007, p.1. 23 Major W.G.L. Mackinlay, ‘Perceptions and Misconceptions: How are International and UK Law Perceived to Affect Military Commanders and Their Subordinates on Operations’, Defence Studies 7/1 (March 2007) pp.111–60. 24 The question of nonresponsiveness – a common concern with web‐based surveys – is not explicitly addressed by the author. Although, for example, officers in Iraq were sampled as well as those serving at the Ministry of Defence in London, the extent of Internet access of deployed troops is not described. 25 Mackinlay (note 23) p.127. 26 Ibid. 27 Ibid. p.134. 28 Ibid. p.135. 29 Ibid. p.146. 30 See Chapter 1 of J.W. Rant, Courts‐Martial, Discipline and the Criminal Process in the Armed Forces (Oxford: OUP 2003). 31 See generally, G. Hook, ‘The Evolution of New Zealand Military Tribunals: From Prototype to Paradigm’, New Zealand Armed Forces Law Review (2003) p.36. 32 Armed Forces Act 2006, Chapter 52, 8 Nov. 2006. 33 Ministry of Defence (Armed Forces Bill Team), ‘An Overview of the Military Criminal Justice System and the Armed Forces Act 2006’, undated, p.7: 〈www.mod.uk/DefenceInternet/AboutDefence/CorporatePublications/LegalPublications/ArmedForcesAct2006/〉 34 G.R. Rubin, ‘United Kingdom Military Law: Autonomy, Civilianization, Juridification’ (2002) 65 MLR 36 p.37. Several of the UK’s traditional allies faced similar pressures around the same time. For an Australian perspective, see M. Groves, ‘The Civilianisation of Australian Military Law’ (2005) 28 UNSW LJ p.364. 35 Rubin (note 34) p.36. 36 See Lustig‐Prean and Beckett (2000) 29 EHRR p.548 and Smith and Grady (2000) 29 EHRR p. 493. 37 Findlay v. United Kingdom (1997) 24 EHRR p.221. 38 Morris v. United Kingdom (2002) 34 EHRR 52. For a critique of the ECtHRs’ findings that the British military system was unfair, see A. Lyon, ‘Two Swords and Two Standards’ (2005) Crim. LR p.850. She suggests that distrust of military justice systems is based on suspicion and ideology and in fact courts martial may be fairer than civilian jury trials. 39 S.P. Huntington, The Soldier and the State: The Theory and Politics of Civil‐Military Relations (Cambridge, MA: Harvard UP 1957) and M. Janowitz, The Professional Soldier: A Social and Political Portrait (Glencoe, NY: Free Press 1960). For a more recent, and empirical, look at civil‐military differences in values see P.D. Feaver and R.H. Kohn (eds.), Soldiers and Civilians: The Civil‐Military Gap and American National Security (Cambridge, MA: MIT Press 2001). 40 P. Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge: CUP 2006). 41 P. Rowe, ‘Do Soldiers Really Have to Apply Human Rights Law in Military Operations?’, Address to the United Nations Association, Westminster Branch/4th Ruth Steinkraus‐Cohen International Law Lecture, 16 May 2006: 〈www.unawestminster.org.uk/pdf/peter_rowe_lecture_2006.pdf〉 42 G. Rubin, Review of P. Rowe, The Impact of Human Rights Law on Armed Forces, 2006, in (2007) 12 Journal of Conflict and Security Law 149, p.150. 43 On the importance of fairness in the disciplinary process for voluntary enlistment, see Rowe, The Impact of Human Rights Law (note 40) p.68. 44 Ibid. 45 M.A. Baderin, Review of P. Rowe, The Impact of Human Rights Law on Armed Forces, 2006, in (2007) 27 Legal Studies p.163. 46 National Audit Office, ‘Recruitment and Retention in the Armed Forces’, 3 Nov. 2006: 〈www.nao.org.uk/publications/nao_reports/05-06/05061633-I.pdf〉 p.53. This report cites a poll conducted for the Army showing that 27 per cent of parents would steer their children away from entering the Army due to the events at Deepcut Barracks. 47 Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: OUP 2004) p.21. 48 Ibid. p.22. 49 See A. Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 AJIL p.580. 50 UNSC Res. 1483 (22 May 2003). 51 Ibid. para. 8. 52 A.P.V. Rogers, Law on the Battlefield (Manchester: Juris Press/MUP 2004) p.3. 53 Rant, Courts‐Martial (note 30). 54 C. Campbell and I. Connolly, ‘A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew’ (2003) 30 Journal of Law and Society p.341. 55 As reported in R. Norton‐Taylor and C. Dyer, ‘International laws hinder UK troops – Reid’, The Guardian, 4 April 2006, p.1. 56 D. Dombey, ‘NATO plans smaller bombs for Afghanistan’, Financial Times, 29 July 2007: 〈www.ft.com/cms/s/0/44aaa8be-3e01-11dc-8f6a-0000779fd2ac.html〉. 57 Preface to the Manual published by the Institute of International Law (Oxford Manual), adopted by the Institute of International Law at Oxford, 9 Sept. 1880. 58 The present discussion looks solely at the ECHR. It is worth noting that other international human rights instruments to which the UK is a party, notably the International Covenant on Civil and Political Rights (ICCPR), could also be invoked to support the claim that Britain’s human rights obligations travel with its soldiers on operations. Article 2(1) of the ICCPR provides that individuals must be ‘subject to its [the state party’s] jurisdiction’. It is far from clear that the scope of this provision is broad enough to protect non‐nationals outside of the United Kingdom. See generally, P.R. Ghandhi, The Human Rights Committee and the Right of Individual Communication (Aldershot: Ashgate 1998) pp.129–32. 59 Bankovic and others v Belgium and others (Appl. No. 52207/99), Admissibility Decision of 12 Dec. 2001, 11 BHRC p.435. 60 Ibid. para. 80. 61 Issa v Turkey (2004) EHRR 567. 62 Ibid. para. 71. 63 R (on the application of Al‐Skeini and others) v Secretary of State for Defence, 13 June 2007 (HL). 64 Ibid. para. 75. 65 Behrami and Behrami v France (no. 71412/01) and Saramati v France, Germany and Norway (no. 78166/01), 31 May 2007. 66 Shaw Savill and Albion Company Ltd v The Commonwealth [1940] 66 CLR p.344. 67 Ibid. p.361. 68 The leading case is the Court of Appeal’s decision in Mulcahy v Ministry of Defence [1996] 2 All ER 758. For a comprehensive treatment of combat immunity over a range of conflicts with which British troops have been engaged, see also Re Post Traumatic Stress Disorder Group Litigation Multiple Claimants v Ministry of Defence [2003] All ER (D) p.301. 69 Bici and another v Ministry of Defence [2004] EWHC p.786. 70 Ibid. para. 102.. 71 ‘Status Of The Coalition Provisional Authority, MNF – Iraq, Certain Missions And Personnel In Iraq’, Cpa/Ord/27 June 2004/17: 〈http://www.cpa-iraq.org/regulations/20040627_CPAORD_17_Status_of_Coalition__Rev__with_Annex_A.pdf〉. 72 C.P.M. Waters, ‘Nationalizing Kosovo’s Ombudsperson’ (2007) 12 Journal of Conflict and Security Law p.139. 73 Select Committee on the Armed Forces, Examination of Admiral the Lord Boyce on 9 Feb. 2006, Question 309. 74 See generally, M. Zwanenburg, ‘The Statute for an International Criminal Court and the United States: Peacekeepers Under Fire?’ (1999) 10 EJIL p.124. Former Foreign Secretary Robin Cook went so far as to say that British service personnel would ‘never’ be prosecuted by the ICC [see Official Report, Commons, 3 April 2001; col. 222.] 75 See generally, J. Sloan, ‘The International Criminal Court and Domestic Enforcement in Canada and the United Kingdom’ in C.P.M. Waters (ed.), British and Canadian Perspectives on International Law (Leiden: Martinus Nijhoff 2006). 76 F.R. Viggers, Adjutant General, ‘The Military Criminal Justice System: Supporting Operational Effectiveness in the Military Environment’, undated: 〈www.army.mod.uk/linkedfiles/servingsoldier/termsofserv/discmillaw/military_criminal_justice_system.pdf〉. 77 Ibid. 78 R. Whitaker, ‘The victims of war: 93 injuries, one killing, no justice’, The Independent, 18 March 2007:〈 http://news.independent.co.uk/uk/legal/article2369020.ece〉. 79 See Doward (note 17). 80 See Ministry of Defence (Joint Doctrine and Concepts Centre), Joint Warfare Publication 3‐46, Legal Support to Joint Operations, April 2005) p.2–2: ‘The LEGAD [Legal Adviser] must provide robust advice against the potentially illegal options but also make clear the existence of any alternative approaches in the form of operational suggestions to the Comd [Joint Commander]. If he does this he will be seen as…someone who enables operations to proceed legitimately rather than someone who stifles tactical advantage.’ 81 For example, speaking at the launch of the UK’s Manual of the Law of Armed Conflict in 2004, the Deputy Chief of Defence Staff (Commitments), Lt. Gen. R. Fry, said, ‘Legal Advice is essential at all levels and an awareness of the legal framework for operations is a crucial part of the Commander’s professional understanding.’ [as cited in Ministry of Defence (note 80)p.iii]. 82 J. Goldstein, M. Kahler, R.O. Keohane and A‐M Slaughter, ‘Introduction: Legalization and World Politics’ (2000) 54 International Organization p.385. More generally see W.A. Bogart [Consequences: The Impact of Law and Its Complexity (Univ. of Toronto Press, 2002) p.5], who suggests that ‘A survey of the last five decades of Western industrialised society would highlight, as a defining element, the insinuation of law into all manner of human endeavour.’ 83 See for example, J. Brunnée and S. Toope [’International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39 Colum. J. Transnat’l L. 19 p.72] who suggest that the ‘legalization’ view unwittingly accepts law as a binding, external force, without explaining where it comes from. By contrast, they argue for a focus on ‘the mutual generative normative activity of agents and structures in international law and politics’. The view put forward in this present paper that the military is a relevant actor in law‐creation – and is not merely acted upon by law – is informed by Brunnée and Toope’s arguments. 84 Additional Protocol I, Article 82, provides that parties ‘shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject’. Note the latitude given in terms of numbers of legal advisers through the word ‘appropriate’. Normally, British brigade and above‐size deployments are provided with legal advisers. 85 Gen. Sir Charles Napier in Clode, The Military Forces of the Crown, Their Administration and Government (1869), cited in P. Rowe, Defence: The Legal Implications (London: Brassey’s Defence Publishers 1987) p.v. 86 The term was coined by the US Marine Corps General Charles Krulak, [’The Strategic Corporal: Leadership in the Three Block War’, Marines Magazine 28 (1999) p.32] to describe devolved responsibility on junior leaders in complex situations which include elements of traditional warfighting, but also peacekeeping and humanitarian activities. Despite being of low rank, the decisions of NCOs are said to have important bearing on the ultimate outcome of engagements. 87 Mackinlay (note 23) p.125. 88 See H. Strachan, ‘Training, Morale and Modern War’, Journal of Contemporary History 41 (2006) p.211. 89 On the importance of focusing on implementation rather than enforcement, see the writings of Prof. Col. G.I.A.D. Draper in M.A. Meyer and H. McCoubrey (eds.), Reflections of Law and Armed Conflicts (The Hague: Kluwer 1998). 90 While this paper has focused on the British context, it is worth noting that following Canada’s 1992–93 Somalia fiasco (which included the torture and killing of a young Somali by members of the Canadian Airborne Regiment), a wide‐ranging inquiry was held which found systemic failures in leadership and accountability in the Canadian forces. Arguably, similar failures are apparent in the British military – despite the professionalism of the vast majority of officers and enlisted personnel – as evidenced by the prisoner abuse scandals from Iraq. No similar, transparent, review has taken place in the UK, however. See Report of the Somalia Commission of Inquiry, Ottawa, Released on 2 July 1997: 〈www.dnd.ca/somalia/somaliae.htm〉. 91 This refusal comes despite the positive experiences of other countries, such as Canada, with a military ombudsman. Ironically, establishing an ombudsman may reduce the frequency of formal legal claims. It should be noted that a Service Complaints Commissioner has recently been appointed for the British military. However, this new post will have an ‘audit’ function rather than the investigatory role usually associated with an ombudsman. 92 J. Reid, MP, Secretary of State for Defence, ‘20th‐Century Rules, 21st‐Century Conflict’, Speech at the Royal United Services Institute for Defence and Security Studies, 3 April 2006: 〈www.mod.uk/DefenceInternet/AboutDefence/People/Speeches/SofS/20thcentury Rules21stcenturyConflict.htm〉. 93 See A. Johnson, ‘MPs to demand inquiry into abuse of prisoners in Iraq’, The Independent, 1 July 2007 :〈http://news.independent.co.uk/uk/politics/article2725718.ece〉. 94 ‘Jail for Iraq refusal RAF doctor’, BBC News, 13 April 2006: 〈http://news.bbc.co.uk/1/hi/uk/4905672.stm〉 95 T. Judd et al., ‘The Betrayal of British Fighting Men and Women’, Independent on Sunday, 11 March: 〈http://news.independent.co.uk/uk/politics/article2347537.ece〉.
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