Mizal Karim Al-Sweady, the father of Hamid Al-Sweady carries a photo of his son after leaving the inquiry into his death. Sean Dempsey/PA Archive/PA Images

The British Army should not escape the watchful eye of the law

Government by jackboot
April 1, 2020
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 uniforms of the British army. 

Again in Basra in 2003, three soldiers from the Royal Regiment of Fusiliers photographed themselves mistreating Iraqi detainees, far from any fighting. They were only caught and prosecuted because one of the soldiers took his film to be developed in a shop in those pre-mobile camera days. And in another instance, an 18-year-old Iraqi was drowned in a so-called “wetting” incident as a punishment for alleged looting. The UK government paid six figures in compensation to his family. 

These are just some of the examples that somehow came to the attention of the public and the media. There are many others, and the Ministry of Defence has chosen to pay millions in settlements so as to prevent these cases coming to court. And not one of these incidents was about battlefield decisions. 

On the other hand, lawyers are certainly not always heroes either. There are matters for which members of the legal profession should also be accountable. In his zeal to bring claims against the ministry of defence, one high-profile solicitor acted so unprofessionally that he was, rightly, thrown out of the profession. 

And there have been concerning delays in the judge-led and lawyer-dominated Al-Sweady inquiry into how Iraqi detainees were treated after a brief gunfight. The inquiry lasted for five long years before finding the allegations of torture and murder were wholly without any foundation and were the product of deliberate lies. 

But just as the conduct of some soldiers should not be seen as representative of the majority, nor should the discreditable conduct of some lawyers be used to demonstrate that the law should not apply to the armed forces at all. 

The relevant cases are often about abuses of power in the most brutal contexts: about what soldiers get away with, either without proper supervision or even with the consent of their superiors. And the cases also include situations where the soldiers themselves are abused or suffer from negligent management. 

For some enthusiasts of untrammelled executive power, military abuses seem to be met with a shrug. The suicides and assaults in barracks and detention centres seem to be less important than removing the threat of legal challenge. All that ultimately matters is that the role of law in bringing accountability is discredited or removed. 

Even if we put the inherent horror to one side, such abuses are counter-productive operationally. No wise commander or civilian should want such wrongful and inefficient conduct. But the wrongs cannot just be wished away. As what happened in Basra in 2003 showed, those who want to kill or torture detainees do not need a reason, they need only an opportunity. 

And so it is left to the law to provide the means of addressing and remedying: criminal prosecutions and courts martial, claims in tort for when there are breaches of duties of care and, yes, human rights law. False cases and systemic faults can be and are exposed. That is a system working, not failing. 

Some in government are glad at moves to remove the law from the armed forces and to discredit the lawyers who take on the might of the military. They want those in uniform to always be above the law: to face no sanction when bad things happen in barracks and detainee camps. But decency and basic respect are worth protecting effectively as well as worth fighting for. The armed forces should never be beyond the law, otherwise there is nothing—nothing at all—to stop the armed forces doing whatever they wish.