A starker contest between the esteemed and the despised would be hard to imagine. On one hand, we have “our brave service men and women,” and on the other, pesky, parasitical lawyers. The gulf in affection for the two groups is wide, and out of it grows all sorts of ideas for policy, including murmurs about taking the armed forces out of the remit of the European Convention on Human Rights, advocacy of which is a virility test for some ultra-Brexiteers.
What, however, if taking the law out of the military could make things worse for everyone involved, including our service men and women? Before you nod along with the attacks on the application of legal standards to military matters—entertained in the context of Northern Ireland by Boris Johnson, and cheered along by the right-wing press—there are certain things to consider.
Many in the defence community seeking to remove legal accountability have their own vested interest too, as ugly and sordid as those of any caricature of an ambulance-chasing (or tank-chasing) lawyer. They like to pretend it is all about what happens on the field of battle, so that you do not ask questions about what happens in the barracks and detention centres away from armed conflict. They say that legal oversight risks making commanders fear the consequences of operational decisions.
But this is a red herring—and in any case, such decisions are already within the scope of the relevant Geneva conventions. The real issue is not only about how enemy soldiers and civilians are treated, but also our own military personnel. And of course, it is partly about what happens to those who are captured and thereby under our control and care.
Take three examples of what happened in Basra in 2003. In one well-documented incident, an Iraqi hotel receptionist suffered 93 injuries from British soldiers in what was officially described as an “appalling episode of serious gratuitous violence.” This was not in the midst of a battle but serious and systematic casual violence by those who happened to be in the…