A ‘legal assault’ threatening the armed forces? Nonsense | Eric Metcalfe

Policy Exchange suggests that rising legal costs could paralyse our entire military capability. This is a far-fetched, feverish claim

Is litigation the continuation of war by other means? According to a new report by Policy Exchange, called The Fog of Law, British armed forces are now under “legal assault” from rising legal costs, and our courts are making decisions that “weaken the defence of the realm”. Faced with “a war of national survival”, it claims, the military would be hamstrung not by defence cuts or a shortage of body armour, but by “the courts holding inquiries into combat deaths”. Apparently, it is only a matter of time before North Korea or al-Qaeda “begin to sponsor legal actions as a way of paralysing the armed forces through legal process” – something to look forward to in the next iteration of Modern Warfare.

How seriously should we take this threat of asymmetrical warfare from a fifth column of enemy-funded lawyers? First, the claim that the military would be hamstrung by “inquiries into combat deaths” is patent nonsense – the European convention on human rights allows for derogation in times of war, even in relation to the right to life in respect of “lawful acts of war”. Secondly, the idea that the Ministry of Defence’s rising legal costs alone (approximately £130m, the report estimates) might be enough to bring our armed forces to their knees is equally fanciful. Even after sweeping budget cuts, the UK still has the fourth largest defence budget in the world – somewhere in the region of £60bn. It has a long way to go before compensation claims, even those sponsored by our nation’s enemies, undermine it.

Thirdly, if the MoD has a problem with its legal costs, it really has only itself to blame. Most of the claims against it arise not from difficult decisions made by commanders in the heat of battle, but from much more disturbing allegations of wrongdoing, compounded in several cases by weapons-grade incompetence. The estimated £25m spent on the Baha Mousa inquiry, for instance, could have easily been avoided if only the army had taken the time to train its troops about the five interrogation techniques prohibited by the government back in 1972. And there is no better demonstration of the need for human rights law than Mousa’s case – beaten to death during an interrogation by British soldiers abroad. The military’s ethos of mutual trust and respect is all very well but hardly an effective substitute for legal liability.

The great shame of the report is that, feverish and far-fetched claims aside, it otherwise explores some serious and difficult issues about the interaction between international human rights law and the international law of armed conflict, and their impact on operational decisions. The European convention on human rights was forged from Europe’s experience of the second world war, yet the report’s main flaw is that – more than 60 years later – it does not really understand how human rights principles …read more