On Armistice Day, nine retired senior officers took the opportunity to write to the Prime Minister in dramatic terms, warning him of the “direct national security threat” posed by “lawfare’, “legal activism” and the “use of legal process to fight political or ideological battles”. Those attacks have continued in recent weeks, with a series of articles published in the Times and Telegraph taking particular issue with a number of legal cases that have grappled with the difficult and complex issue of how to deal with alleged abuses perpetrated by British forces overseas. The European Convention on Human Rights (ECHR) was singled out for particular criticism. The net effect of this so-called “lawfare”, it is argued, is an “erosion of trust” in the ranks which, among other things, has had the effect of unspecified numbers of members of the Special Forces leaving the service and of a “witch-hunt” against veterans.
Whilst these retired officers enjoy the privilege of having their voices heard by virtue of their former service and rank, theirs is not the only relevant opinion in this debate. Those still in service are not permitted to express their political opinions publicly and there are many current and former members of the Armed Forces who take a different view. Their voices equally deserve to be heard.
Those who served in Northern Ireland during the Troubles were sent to do so to uphold the rule of law. The vast majority of the 300,000 people who served did so in accordance with the rule of law and the rules of engagement as they understood them to be. Some did not, a fact which was acknowledged by the then Prime Minister David Cameron in 2011 who described the killings on Bloody Sunday as “unjustified and unjustifiable”. There has been just one conviction of a former soldier since the Good Friday Agreement (GFA), almost 30 years ago and he was given a suspended sentence. If these senior officers and their supporters are concerned to reassure our elderly veterans, they should emphasise that point a little more forcefully than they have to date. They might also wish to recognise that many hundreds of service personnel were murdered or maimed by terrorists whose attackers were never investigated, caught or brought to justice either. The last government passed the “Legacy Act” which closed thousands of criminal cases and would have granted conditional amnesties for people that had perpetrated the most appalling crimes – including hundreds of cases where service personnel were victims. People like Pte Tony Harrison, who was killed by the IRA while off duty, aged just 21, and whose case was shut down by the Legacy Act. An Act which was remarkable only in the extent to which it was able to unite all sections of Northern Ireland in vehement opposition to it. These retired senior officers and their supporters maintain they are not calling for immunity for those who committed heinous crimes but did not speak out against the immunity provisions of the Legacy Act when it was passed; and we fear that immunity, or turning a blind eye, is the logical consequence of what they are calling for now. The GFA ended thirty years of violent conflict and committed all parties to peaceful and democratic means of resolving their differences going forward. Very difficult choices were made by the people of Northern Ireland as part of that peace process. And embedded within it is the ECHR, its protections afforded to everyone within the jurisdiction. It does not afford different sets of rights to people according to whether they are soldier, veteran or civilian; Catholic, Protestant or atheist, or on any other basis. Everyone is equal before the law and no one is above the law.
As for the outrage being directed towards anyone involved in the 2007 Al-Skeini litigation, that case rightly established that where there are credible allegations of murder or torture, there must be an effective investigation. It is hard to see what can possibly be objectionable about that. Former MP Jonny Mercer – one of the loudest critics – knows very well that military policing has in recent years failed to properly investigate allegations of some of the most serious alleged crimes during overseas military operations. He has said so, publicly, and has himself had to grapple with some of the consequences of that in his own recent troubles with the Afghan inquiry. The Al-Skeini case was in fact a collection of cases heard together including that of tortured and murdered Iraqi hotel receptionist Baha Mousa, as well as the family of a teenager forced into a river where he drowned. Are the critics saying those kinds of allegations should not have been investigated? That is all those cases established – that where there are credible allegations of the most serious violations such as torture or extrajudicial killing in a part of the world under UK control (as that part of Iraq was at the time), investigations have to be effective and independent. The court rightly found in those cases that the military police and Chain of Command had not investigated properly. The ECHR’s detractors claim not to want to avoid accountability, but that is exactly where this reasoning leads: to the military investigating itself. If the allegations had been investigated properly at the outset, there would have been no “cycle” of reinvestigation and the fault for that lies squarely with the Army at that time.
These latest attacks upon the rule of law, and the characterisation of cases that result in the Army being held to account as “lawfare”, or lawyers as “the enemy”, are unacceptable and irresponsible. Our soldiers are trained to respect the rule of law and to observe the rules of engagement and the laws of armed conflict and the vast majority do so. But when former generals and politicians speak like this about the rule of law, what do they think the effect will be? When Sgt Blackman was caught on camera admitting he had just “broken the Geneva Convention”, directing his soldiers, “obviously this doesn’t go anywhere, fellas”, he and his soldiers knew what the law required, but decided to break it. The Independent Inquiry into alleged unlawful activity by UK Special Forces in Afghanistan is investigating extremely serious allegations that must be investigated if those who we are sent to support and protect overseas are to have any trust or confidence in us. These allegations have never been independently investigated before and are only now being investigated because of the ECHR.
The ECHR is overwhelmingly a force for good for our soldiers and veterans – it exposed the shocking treatment of Baha Mousa in Iraq; the dreadful events at Deepcut; it got the family of Jaysley Beck justice; it ended the ‘gay ban’ on LGBT+ people in the military; it protects the right of our soldiers to a fair trial – and in numerous other ways. We now live in an age of accountability. That is a good thing, although it may be difficult and painful. Respect for the law and human rights would have prevented all these atrocities – from Londonderry to Basra as well as inside the darker parts of the Army that a few would prefer to remain hidden. If the British Army is to live up to its reputation of being one of the finest armies in the world, if its Values and Standards are to be at the centre of its command ethos and, as one former Chief of the General Staff put it, “the lifeblood that sustains the Army”, then strict adherence to the rule of law and human rights must become and remain part and parcel of its DNA.
Brig (Ret’d) John Donnelly CBE
Lt Col (Ret’d) the Reverend Nicholas Mercer
Emma Norton, Director, Centre for Military Justice
30/01/26