The "Economist" On Lawfare Against the British Military
Last week's Economist had an excellent article about lawfare against Britain's Ministry of Defence relating to actions of the British military in Iraq and Afghanistan entitled "Lawyers to right of them, lawyers to left of them: The army increasingly feels under legal siege." The entire article is worth a read (especially by U.S. JAGs), but here are a couple of interesting excerpts:
So far there have been two public inquiries, more than 200 judicial reviews and more than 1,000 damages claims made against the MoD on human-rights grounds. The cost of these legal challenges so far is around £85m ($145m), over half of which has gone on inquiries into the killings of Baha Mousa and Al-Sweady by British troops in Iraq in 2003 and 2004.
Many of the legal challenges come from former enemy combatants and their relatives. But another class of case, known as “duty of care” lawsuits, which are brought by the families of soldiers who have died on active service or during training, is also absorbing much time and money. Many relate to deaths that might have been avoided had better kit been provided, such as body armour, tougher vehicles or equipment to prevent “friendly-fire” accidents.
One explanation for the legal barrage is the activism triggered in 1998 by the incorporation into English law of the European Convention on Human Rights (ECHR) through the Human Rights Act. Another is that, since the Falklands War, Britain has taken to bringing home the bodies of soldiers killed in action, which makes military deaths subject to civilian coroners’ inquests. In 2004 the use of narrative verdicts became widespread, allowing coroners to comment critically on the conduct of operations.
But the armed forces and many politicians are now losing patience with what Mr Hammond describes as “ambulance-chasing lawyers…aggressively seeking out foreign claimants” and are trying hard to cut off the legal assault. One measure already being taken is stopping the flow of legal aid to people who have little or no connection with Britain by imposing a residency test. The government might also argue that, as case law and precedent have extended the ECHR to combat operations with perverse results, Britain should derogate from the convention during operational deployments. As far as combat immunity is concerned, Mr Hammond has already suggested that the government will have to legislate to restore it in full if legal decisions go against it.
The armed forces should urgently consider another reform, too: introducing much more rigorous legal training for all ranks. “Lawfare”, as it has been called, is not going to go away.
The title of the article, by the way, is an allusion to the famous line in Tennyson's "The Charge of the Light Brigade" ("Cannon to right of them, Cannon to left of them...") about the charge of British light cavalry against a Russian artillery battery in the Battle of Balaclava in the Crimean War in 1854. And we know what happened to the Light Brigade...