The government cannot opt out of responsibility for torture or unlawful killing
Today’s announcement by Defence Minister Michael Fallon that the government will seek a derogation from the European Convention of Human Rights has been met with much fanfare.
But ultimately it is a meaningless gesture. The government cannot opt out of responsibility for torture or unlawful killing.
The rhetoric of the Tories suggests that the hands of commanders or soldiers are tied in the very act of fighting. But the well-established doctrine of ‘combat immunity’ prevents claims by enemy combatants for injuries sustained while attacking or defending in actual combat.
That is why of the 320 claims brought by nationals of Iraq and Afghanistan which have been settled by the government, there is not a single instance of an enemy combatant or his family successfully claiming compensation for injuries or death caused in actual combat under fire.
The problem in most cases, including the Baha Mousa case in which I was involved, arose from abuses by British forces acting as an occupying power in the treatment of civilians. These have demonstrated the failure of the Ministry of Defence to properly train soldiers in theatre for their peace-keeping role.
This is why hundreds of claims have been brought and settled, presumably on good evidence of a failure in the system. Will the proposed derogation simply sweep these abuses under the carpet?
We must also remember the ECHR has also been used to hold the government to account for providing inadequate equipment and poor training to soldiers.
The government’s legal liability in this area has secured far better protection for our troops in the field, with better equipment and training in the course of operations in Iraq and Afghanistan.
Suspending it would risk letting soldiers and their families down by letting the government off the hook. The Tories must not use the proposed derogation to avoid liability.
I personally came across spurious claims against British soldiers in Iraq ten years ago when defending in the courtmartial of members of the third Battalion, Parachute Regiment at Colchester.
The case dismally failed through lack of evidence. I deplore the trawling by certain members of the legal profession in Iraq and Afghanistan. But today’s announcement is not the answer.
Lord Thomas of Gresford QC, Lib Dem Shadow Attorney General and President of the Association of Military Court Advocates