Policy Exchange has published its latest paper, endorsed by General David Petraeus — which sets out new measures on how the next Government must protect our soldiers from the assault of ‘lawfare’.
Resisting the Judicialisation of War was written by Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Julie Marionneau, Research Fellow at the Judicial Power Project and former French Air Force legal adviser. The report is endorsed in a Foreword by General David Petraeus, Former Commander, United States Central Command.
Lawfare is not an easy problem to resolve, General Petraeus notes, but it must be addressed if Britain is to keep faith with its fighting men and women and if it is to remain a first-rate fighting power. General Petraeus commends Policy Exchange’s new paper, which sets out a clear plan of action for whoever forms the next Government.
- Maintain of a policy of derogating from the ECHR in advance of future operations and legislate to put this policy on a statutory footing
- Amend the Human Rights Act 1998 to limit its extra-territorial operation, and
- Resolve not to comply with judgments of the European Court of Human Rights that extend the ECHR to military operations abroad.
To protect UK forces who served in Northern Ireland from unfair pursuit in the courts, the paper also recommends that the next government should:
- Amend the Human Rights Act to specify that it does not apply to events that took place before the Act came into force in October 2000,
- Introduce of a Statute of Limitations which would prevent reinvestigation or prosecution of old incidents unless a court is persuaded that there is truly new evidence and that it is in the interests of justice for new investigation or prosecution to proceed,
- Legislate to prohibit prosecution of former or serving UK forces without the consent of the Attorney General of England and Wales, and
- Legislate to prohibit prosecution in cases where it is alleged that force used in defence of others or to perform an arrest was unreasonable unless and until the Attorney General for Northern Ireland certifies that in his view there was no honest belief that the force used was reasonable.
Finally, the paper recommends formation of a new Counter-Lawfare Commission to review lawfare against UK forces and to recommend further action, including advising on the forthcoming review of the Law of Armed Conflict Manual.
In the Foreword, General David Petraeus, Former Commander, United States Central Command says:
“The problem the British military has faced in recent years, to which Policy Exchange has properly drawn attention, is the judicialisation of conflict and, in particular, the displacement of the Law of Armed Conflict by European human rights law. British soldiers are increasingly subject to a different legal regime than are their American counterparts. The extension of the European Convention on Human Rights to the battlefield has made extensive litigation against British soldiers inevitable.
This, in turn, risks promoting a culture of risk aversion in the ranks. In Afghanistan, it undermined the British military’s authority to detain enemy combatants and also to work with the Afghan government and NATO allies.
The unfair pursuit of British soldiers and veterans in the aftermath of operations is particularly concerning. This practice has caused enormous stress and anxiety on those who are caught up in investigations, sometimes years or even decades after their combat service. The extent to which those who served decades ago in Northern Ireland, including the highly distinguished soldier-scholar General Sir Frank Kitson, remain exposed to legal risk is striking and appalling. This is not only unfair to those who have served and sacrificed for their country, it also gravely undermines the morale of those serving now and raises an unnecessary concern for potential recruits.”