Legal challenges undermining armed forces, say MPs

UK troops in Afghanistan

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An "unprecedented" number of legal challenges to the Ministry of Defence could result in commanders withholding troops from battle, MPs have warned.

The Defence Committee said this could lead to more civilian "bloodshed", with airstrikes used instead of soldiers.

It said a legal judgement allowing personnel and their families to sue for negligence in cases of death or injury was "incompatible" with soldiering.

The government said it would fight to preserve "vital" military powers.

In a report, the committee said the Supreme Court's ruling last year that military personnel and their families could sue the the MoD for negligence in the case of death or injury had undermined the previously well-understood principle of combat immunity.

It had created an "almost unlimited potential for retrospective claims", it said, adding that ministers needed to reassess the legal framework for conducting military operations as part of the forthcoming Strategic Defence and Security Review.

'Uncertainty'

James Arbuthnot MP, chairman of the committee, said soldiers needed clarity before going to war.

He said: "They must obey the law but in order to obey the law they do need to know what that law is and at the moment it's very far from clear.

"And therefore the uncertainty that is created in the minds of our armed forces is one which is causing concern amongst them and it's one which the Ministry of Defence needs to deal with."

Start Quote

The reasoning behind these claims, in some cases, is purely financial greed ”

End Quote Colonel Richard Kemp Former British Army commander

Vernon Coaker MP, shadow defence secretary, said he "shared" the committee's concerns.

He said: "A clear tension exists between the law of armed conflict and human rights law, and we must ensure this does not negatively impact future military operations or the welfare of our forces and their families.

"Any resolution must balance the defence of our country with the rights of those Armed Forces personnel who protect it."

Most of the growing number of cases against the MoD have been brought under the European Convention on Human Rights.

The report said: "The number of cases and the requirement for full and detailed investigations of every death resulting from an armed conflict is putting a significant burden on the MoD and the armed forces, not just in resources spent but in the almost unlimited potential for retrospective claims against them."

It also said: "This seems to us to risk the judicialisation of war and to be incompatible with the accepted contract entered into by service personnel and the nature of soldiering.

"It also challenges the doctrine of the best application of proportionate response with the unintended consequence that it might lead to far bloodier engagements on the battlefield as commanders may take fewer risks with their own troops and make more use of close air support or remotely actioned weapons, resulting in greater violence against the opposition with potentially greater numbers of civilian casualties.

"More legal certainty might result in less destructive conflicts."

The committee said it made "no criticism" of the personnel and their families who had sued the MoD.

'Unscrupulous'

Colonel Richard Kemp, a former commander of British forces in Afghanistan, said he believed it was often too easy to make a claim.

He said: "In my opinion unscrupulous lawyers have attempted to persuade large numbers of Iraqis to make claims against the British Army.

"And the reasoning behind these in some cases are purely financial greed and in other cases political motivation.

"The more of that that happens, then the more difficult it becomes, the more that this will be in the forefront of commanders' minds."

Defence Secretary Philip Hammond said: "It cannot be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security.

"We will fight for this principle in the courts, but we have not ruled out legislation to protect the armed forces in the future if necessary."

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