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.

The paper recommends that the next government should:

  • 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.”

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DaveyB
DaveyB
10 months ago

Yes, finally, but will the politicians take any notice or even put these recommendations into law?

Daniele Mandelli
Daniele Mandelli
10 months ago
Reply to  DaveyB

Nope. Far to riddled with PC.

Sorry, but my confidence is politicians is rock bottom.

Cam
Cam
10 months ago

PC will destroy our Nation if we don’t get on top of the dam stupid state of affairs that PC culture creates.

Rob
Rob
10 months ago
Reply to  Cam

Completely agree….we can only blame those people that voted for, empowered and propelled hard-left liberals into the mainstream media, law, schools and universities. General P. makes a brilliant observation but the USA has a severe problem similar to ours in PC culture (they now have male tampons in bathrooms) but they do get better legal protection for their troops.

Gavin Gordon
Gavin Gordon
10 months ago
Reply to  DaveyB

Just noted that Conservatives have stated they will take such steps again if elected. But they could have done that already! Cameron seemed to start this tactic of saying, effectively:- ‘if you elect us a 2nd time, we will do want we manifested to do the 1st time’

andy
andy
10 months ago

this should never been allowed in the first place,servicemen and women step out of line the discipline procedure is far more strict than civvie,s would ever get,and lets be honest when governments send forces here there and everywhere they should take the blame,not the individual,who would be dealt with like i mentioned earlier if they step out of line

Cam
Cam
10 months ago
Reply to  andy

Yeah commanding officers in command in those areas like Ireland where the soldiers served should take the blame, but can’t see that happening

David
David
10 months ago

Soldiers are not police officers. No soldier deployed and asked to undertake a task should be subject to prosecution under civilian law. They should only be subject to military law. The prosecution of a soldier decades after the event is not about justice, its a political endgame, and its a disgrace. If the IRA have all been “forgiven” and freed, then all prosecutions against British soldiers should also be “forgiven”. You cannot forgive one side of a conflict but not the other during peace process. Stop using soldiers as international police officers, they are not trained for the role, nor… Read more »

Herodotus
10 months ago
Reply to  David

Only subject to military law? The crisis of Beckett vs Henry 2nd in the C12th centred on the rule of law. Beckett argued that members of the clergy that were indicted by the state should only face prosecution under church laws. Henry argued that the common law of England applied to everyone….even the King! He had a point!

Elliott
Elliott
10 months ago
Reply to  Herodotus

And yet in the US where common law is nominally used, the military when deployed is ONLY subject to the UCMJ and the military courts.
You cannot put a man in a war zone to the same standards of civilian law. To do so is both idiotic and asking for trouble.

Herodotus
10 months ago
Reply to  Elliott

Maybe so…but your example is just another case of US exceptionalism! That is, they don’t want their soldiers tried by foreign powers…subjecting them to civilian law in the US would leave wriggle room. And why should US citizens working for the state be subject to the barbaric legal systems of backward foreign powers like the UK? US diplomatic staff have every right to kill UK citizens and then claim diplomatic immunity. Utterly shameful! Exceptionalism is a contemptuous road to go down…whoever is doing it!

Elliott
Elliott
10 months ago
Reply to  Herodotus

The UCMJ is in use even on domestic military installations and can be with the permission of a given state applied off of it. It has nothing to do with Exceptionalism. As for Diplomatic Immunity? Don’t make me laugh. Name a country that has staffers who haven’t abused that! In case you are referring to Diplomatic Immunity has been denied to by both governments Mrs.Sacoolas all the UK has to do is charge her and file for a extradition warrant. Same as every other country. On another note the US has been better at granting extraditions than the UK which… Read more »

Herodotus
10 months ago
Reply to  Elliott

Oh golly…and therefore UCMJ it is enshrined in ‘God’ given law…and not to be questioned. Some of you guys are so far up your own backsides that a gastral sphincter would recognise you.
As for your comments about diplomatic immunity: the lack of sensitivity towards the death of a young UK citizen is appalling. I hope that you have time to reflect on your callous statements!

Elliott
Elliott
10 months ago
Reply to  Herodotus

Callous? I pointed out the legal process. The law isn’t callous it is the law.

the_marquis
the_marquis
10 months ago
Reply to  Herodotus

Diplomatic immunity can always be revoked, just ask Danny Glover!

Cam
Cam
10 months ago

It’s a dam crime what’s happening to ex Soldiers decades later, How many british soldiers died in Ireland alone! All the crimes against them by the IRA and their supporters, and we let hundreds go free! Jail the murderers and not british Soldiers who mostly were just following orders, no doubt crimes were committed on both sides but let’s leave that in the past it won’t bring anyone back and will just increase tensions and hate in Irish communities.

Herodotus
10 months ago
Reply to  Cam

Of course Cam…if they were just following orders! On that premise let’s declare the Nuremberg trials null & void!

Daniele Mandelli
Daniele Mandelli
10 months ago
Reply to  Herodotus

Lol. Fair comment on Nuremberg Herodotus. Having studied that at length that was indeed the stock excuse of the many perpetrators. Orders. Or the Fuhrers will. Which to them was also law.

Frank62
Frank62
10 months ago

In a world today that no longer fosters traditional western values, even here in the UK, our youth grow up with much looser moral standards than previous generations. We have to be very careful not to give our servicemen free reign to abuse the positions they’re in & effectively deal with those who do. We are usually fighting for justice, freedom & the rule of law & we must behave accordingly.
I agree that if one side in N.I. is given amnesty, then the other must.
P.C. culture is strangely dictatorial & uncompromising. Not a fan.