Warfare, Not Lawfare

Alexander Gray is Director of Sovereignty at the Prosperity Institute, where he oversees the institute’s policy implementation work. He has a keen interest in defence policy and is author of the paper From AUKUS to CAUKUS: The Case for Canadian Integration.

He is also an editor of History Reclaimed, an online publication which aims to counter the abuse of history for political purposes. He wrote the report Can we trust the BBC with our history?

He previously worked in Parliament, predominantly on issues related to China and national security, and spent four years at the think tank Policy Exchange working on security and extremism policy, defence policy, and the History Matters project.

He is an Army reservist in the Honourable Artillery Company and a native French speaker.

Democratic nations need their armed forces to act decisively in defence of national security. But in recent years the legal frameworks governing military operations have increasingly failed to reflect the realities of armed conflict.

International humanitarian law applies where normal civil mechanisms have broken down. Armed forces are deployed only when civilian agencies cannot cope—whether at home or overseas. In those circumstances, policing laws are not fit for purpose, and this new Military Operations Bill makes clear that operations should be judged under the law of armed conflict.

Service personnel are asked to make decisions in conditions of danger and uncertainty, often under intense time pressure. If those decisions are later judged against legal standards which do not match up to the operational environment, the result can be years of legal jeopardy for those who acted lawfully and hesitation within the chain of command.

This is a concern not only for the individuals concerned, but for the effectiveness and credibility of the armed forces as a whole. Democracies ask a great deal of the men and women they send into harm’s way. They must hold them to the highest standards. But they must also recognise the realities of combat operations and provide clarity, fairness, and confidence in the legal framework under which they operate.

The Military Operations Bill recommended in this paper would ensure this. Its central purpose is to distinguish clearly between genuine wrongdoing, which must always be investigated, and legal processes that risk becoming detached from operational reality. In doing so, it rightly reaffirms the proper place of international humanitarian law as the framework specifically designed for armed conflict.

A serious country owes its armed forces the assurance that the state will recognise that its duty toward them does not end when the operation concludes or the headlines move on.

—The Rt Hon. Sir David Davis KCB MP

“This important draft Bill takes a big step towards resolving the most flagrant injustice of the modern British state: the pursuit of British Army veterans and serving personnel for actions taken, in the line of duty and under orders, in defence of the British people.

Reform UK will institute a total bar on the prosecutions of British Army veterans from the Northern Ireland Troubles.

I welcome the articulation in this Bill of the principle of parliamentary sovereignty. I also strongly endorse the recognition that the interpretation of the law of armed conflict—the customary understanding between nations about acceptable conduct in war, sometimes misleadingly described as ‘international law’—rests not with the courts but with the chain of command, and ultimately with the Ministers who send Armed Forces personnel into harm’s way.

I should make clear that Reform UK would not need to make use of the formal ‘statement of incompatibility’ with the European Convention on Human Rights, which the Bill would require, because we will leave the ECHR altogether and repeal the Human Rights Act.”

—Danny Kruger MBE MP

I am deeply grateful to Brigadier (retd) Aldwin Wight OBE MC, Brigadier (retd) David Maddan DL, Colonel (retd) Nick Kitson DSO, Warrant Officer (Retd) Robert Parr MBE PhD AKC, Major (retd) Jamie Lowther-Pinkerton LVO MBE DL, and Major (retd) George Simm DCM. This work rests in large part on their initiative, judgement, and experience. They were central to the development of the underlying Bill, and this paper gives expression to their work and collective judgement.

I would also like to thank I would also like to thank Sir Michael Craig-Cooper CBE TD DL as well as the team at the Prosperity Institute for their support, in particular Damien Shannon, Fred de Fossard, and Rhys Laverty, whose work, comments, and assistance were invaluable in bringing the paper to completion.

I am also indebted to the lawyers, politicians, and serving soldiers who have contributed their scrutiny and encouragement during the drafting process. I alone bear responsibility for any errors or omissions.

For two decades, Britain’s Armed Forces and veterans have been increasingly entangled in repeated legal claims and investigations regarding operations both overseas and in Northern Ireland. Veterans have faced multiple, and often prolonged inquiries or lawsuits long after the events to which they relate. In many instances, these investigations turned up no new evidence or showed the allegations unfounded. Such meretricious claims took a huge toll on veterans hounded through courts for doing their duty. This has become a major concern across political parties and there is now broad agreement that unfounded or repetitive claims should not be allowed to torment those who served honourably.

This is not only a historical problem. Such investigations and the fear of retrospective legal action are now having direct operational consequences, including the resignation of experienced special forces personnel, increasingly risk-averse behaviour on operations, and difficulty in recruitment.[1] Senior serving and retired military figures have warned publicly that troops now feel they must “consider not only the enemy in front of them but the lawyer behind them”. This undermines initiative, confidence, and effectiveness and poses a risk to operational capability. It is a threat to national security.

The Military Operations Bill we propose is designed to end these injustices and the operational damage they inflict by recalibrating the legal system’s handling of allegations and claims of this kind. The central aim is to protect serving and former personnel from protracted or unfair legal action, without weakening accountability for serious wrongdoing. The Bill reasserts international humanitarian law (IHL)—the law of armed conflict—rather than peacetime human rights law as the sole governing framework during active military operations, removing a past source of legal complications and constraints.

It is beyond the scope of this paper to take a position on whether the United Kingdom should remain a signatory to the European Convention on Human Rights (ECHR). Politicians of all parties can reasonably come to different views on that question. It is, however, clear that the European Court of Human Rights (ECtHR) claims that its jurisdiction extends to wherever in the world a signatory state’s armed forces exert operational control over combat zones. This has required judges to review decisions taken in the fog of war and determine their compatibility with the ECHR. This is corrosive to the operational efficiency and effectiveness of the Armed Forces.

The Bill we propose is incompatible with the ECHR since its very object is to prevent that instrument from having any supervisory effects over the use of force. Recognising that any given government may nonetheless wish to remain a signatory to the convention, our Bill is constructed in a way which would work regardless of whether or not HM Government decided the UK should remain a signatory.

Key provisions of the Bill include:

• Ministerial authorisation of force: The Bill allows a senior minister to authorise the use of force in military operations, making lawful under domestic law actions taken under that authorisation and shielding personnel from civil or criminal liability when acting in accordance with IHL. This protection does not apply to breaches (such as war crimes). Courts may not question the authorisation, thus leaving accountability with the chain of command and government rather than with the courts.
• Curtailing lawfare: The Bill sets high thresholds and firm time limits for investigation and prosecution, requiring compelling new evidence and senior approval before any case can begin or be reopened. Together, these measures are intended to prevent repeated or prolonged investigation, ensuring allegations are dealt with promptly and decisively rather than resurfacing years later without new evidence.
• Expert Military Panel: The Bill requires coroners to consult an Expert Military Panel in combat‑related deaths and protects service personnel from self‑incrimination, ensuring inquiries are informed by military expertise and remain focused on fact‑finding rather than retrospective blame.
• Support and safeguards for service personnel: The Bill guarantees full legal aid for serving and former personnel facing proceedings linked to military operations, provides for compensation where investigations are excessively prolonged, and requires cases involving suspension to be resolved swiftly. Together, these measures aim to ensure fair treatment, to prevent open‑ended uncertainty, and to reflect the state’s duty of care to those who serve.

Since the Human Rights Act (HRA 1998) was enacted in 1998, the judiciary has expanded its reach into territory that should remain that of the elected government: the conduct of military operations. Courts once rightly reluctant to second‑guess the realities of the battlefield are now invited to examine, years later and with perfect hindsight, commanders’ and soldiers’ training, equipment, preparation, and even the conduct of particular campaigns. That shift carries a heavy price—not just in legal fees and administrative burden, but in the damage done to operational confidence, to the fighting ethos, and to the moral contract between the state and those it sends to fight in its name. When commanders know their judgements may be reconstructed in a civilian courtroom long after the event, the rational response is caution, process, and defensiveness—exactly the mindset least suited to lethal, fast‑moving environments.

Two legal mechanisms have powered this mission creep. The first is the extraterritorial application of the ECHR to overseas operations, including conflict far removed from the stable European conditions it was designed to govern. The second is the transplantation of civilian standards of negligence (built for controlled, home‑front settings) into conditions of combat, where decisions are made under pressure of time, imperfect information, and hostile action. Neither development reflects sound legal method, and both risk distorting the constitutional balance by shifting practical authority over war from the Executive and Parliament to the judiciary. They also create acute uncertainty for the Armed Forces by superimposing human rights duties onto international humanitarian law (the specialist regime for armed conflict), leaving those on operations unclear under which they will be judged.

The predictable consequence has been a spike in litigation against the Ministry of Defence. Even when allegations collapse, the process itself can be punitive: repeated investigation, years of unresolved legal jeopardy, and a corrosive sense that service is met with suspicion rather than trust.

It is therefore no surprise that leaving or amending the ECHR is increasingly being advocated across the political divide. Though there are other factors at play, the toll the ECHR has taken on our Armed Forces has aroused particularly strong feelings. Leaving it and repealing the HRA 1998 would therefore be a beneficial first step in putting an end to this untenable situation.[2] But the Bill includes clauses intended to make it effective whether or not the United Kingdom remains a signatory to the convention and repeals the HRA.

In any event, the Government should bring forward a targeted Military Operations Bill to restore the balance in wartime governance. To that end, we have produced a draft Bill alongside this paper, attached at Annex A. This Bill maintains rigorous accountability for wrongdoing without allowing the legal system to morph into a tool of lawfare that incentivises speculative suits, forces commanders into excessive caution, or effectively transfers warfighting authority from elected leaders to the courts. It reaffirms that while our Armed Forces remain bound by law, the law must respect the realities of combat and the constitutional primacy of government and commanders in directing military operations.

The vexatious claims problem

Since 2000, Britain’s military has become increasingly entangled in legal action. Following the Iraq War, a small number of (now infamous) law firms brought a large volume of dubious claims alleging systemic human rights abuses by British troops. The Government eventually shut down the Iraq Historic Allegations Team and paid damages to serving and former personnel for the stress caused by prolonged and unwarranted investigations. Similar allegations arose in Afghanistan. The overwhelming majority proved unsubstantiated. The MoD was repeatedly forced onto the defensive, sometimes settling claims to avoid years of costly litigation.[3]

Given the legacy of Northern Ireland, it is on the home front that these issues have been thorniest. Under the influence of evolving human rights jurisprudence, notably the McKerr line of cases, deaths from decades past have been reexamined, often with little or no new evidence.[4] This has proven deeply controversial: veterans are being selectively pursued through asymmetric legal processes. The Legacy Act 2023 sought to draw a line under this cycle through conditional immunity but has itself been stalled by legal challenge under ECHR obligations. The cumulative effect has been repeated investigation and reinvestigation which has consumed vast resources, damaged morale, and corroded trust between the state and those who served it.

The legal tension between human rights law and IHL

Under the HRA 1998, domestic courts are required to apply the ECHR to overseas military operations once Convention jurisdiction is engaged. In Al‑Skeini v United Kingdom, the ECtHR held that civilians in areas abroad where the UK exercised authority and control fell within the UK’s jurisdiction under the Convention.[5] Subsequently, in Smith v Ministry of Defence and related cases, the Supreme Court confirmed that troops deployed overseas likewise fell under the jurisdiction for human rights purposes.[6] As a result, the MoD was held to owe obligations under Article 2, including the protection of life through equipment, training, and operational planning, and potentially the same duties towards civilians encountered during operations.

These developments meant that even during armed conflict, Britain was required to apply peacetime human rights standards alongside IHL. This generated extensive procedural obligations, notably the requirement under Article 2 to conduct effective and often detailed investigations into any use of lethal force, even where the force in question was lawful under the law of armed conflict. It also enabled claimants to pursue civil proceedings alleging negligence in the planning or conduct of military operations, including challenges to procurement and force protection decisions, such as those arising from the use of Snatch Land Rovers in Iraq.

This legal framework is ill‑suited to the realities of combat. Judicial assessment conducted years after the event, applying standards developed for peacetime policing and governance, led courts to scrutinise, retrospectively, split‑second decisions taken in conditions of extreme uncertainty and risk. Nevertheless, as long as the HRA 1998 applies, domestic courts are required to entertain such claims.

Our proposed Military Operations Bill is a direct response to this situation. It expressly reaffirms IHL as the lex specialis governing military operations.[7] In doing so, the Bill restores clarity by ensuring that conduct in armed conflict is regulated according to the legal framework specifically designed for warfare, while preserving criminal liability for serious breaches of IHL.

Wolfson Review

The 2025 Wolfson report took the view that to implement measures such as the Military Operations Bill without constant legal friction, Britain would have to withdraw from the ECHR since any domestic law preventing certain investigations or limiting liability could itself be taken as a violation of the Convention. For instance, families of the deceased could claim Britain was not conducting a proper Article 2 investigation. Leaving the Convention system and repealing the HRA would ensure that this external check was removed.[8] Even short of this ideal, the Military Operations Bill can state principles such as that “courts shall not entertain proceedings questioning X”.

Political impetus

The protection of troops from vexatious litigation has been a repeated pledge from politicians for some time. There is a recognition that public opinion is sympathetic to veterans in these matters and is disturbed by stories of soldiers facing repeated investigations.[9]

Ministerial authorisation of the use of force

The Bill provides for a Minister to issue a written authorisation for the use of military force, defining the scope of the authorisation (including, where relevant, the operation, geography, duration, and personnel covered). Force used under that authorisation and in compliance with IHL is treated as lawful for all purposes. In consequence, no person incurs criminal or civil liability for authorised uses of force, subject to specified exceptions for serious breaches of IHL.

Retrospective authorisations

The Bill allows the Minister to issue a certificate deeming that past uses of force are to be treated as authorised under the Act. This is specifically to cover historical operations (Iraq, Afghanistan, Northern Ireland) so that ongoing or future legal actions about them can be halted. For example, the Government could retrospectively authorise all forces’ actions in Iraq between 2003 and 2009, effectively nullifying pending civil claims or investigations (as long as they do not involve alleged war crimes).

Non-justiciability clause

Clause 4 provides that no court can question the Minister’s decision to authorise an operation. This avoids legal attacks from pressure groups seeking judicial review. Such challenges, if successful, would invite courts back into military decisions, which the Bill explicitly seeks to avoid. The Bill thereby affirms that the decision is a matter of high policy and national security, ineligible for judicial review, returning to the courts’ historical view of war prerogatives.

Parliamentary notification

After authorisation is issued, the Bill requires the Minister to notify Parliament as soon as is compatible with operational security. If the Commons is unsatisfied, it is open to it to resolve that the authorisation should be withdrawn. The Minister is not legally bound to cancel it but must formally respond. This mechanism is akin to the War Powers debates giving Parliament a say, at least after the fact.

Tight controls on investigations and prosecutions

The Bill sets up a regime to ensure that any criminal examination of military actions is necessary, evidence-based, and timely.

Threshold to investigate

Before police investigate an incident, a senior prosecutor must determine that there is a credible case to answer. They must examine existing material (e.g. after-action reports, any prior investigation, available witness statements). If they have no more than a single uncorroborated claim and no strong evidence, they should not proceed. This prevents “fishing expeditions” and filters out politically motivated, unreliably sourced complaints.

No repeat investigations

The Bill precludes re-opening cases in the absence of new evidence (strictly defined). Even then, that new evidence must be so compelling that it would likely have originally led to a different result and must have been unavailable at the time.

Consent of leadership

For any investigation or prosecution of a “relevant offence on active service”, consent is required from:

• The Attorney General
• The Chief of the Defence Staff
• The Director of Public Prosecutions

Requiring all three ensures a broad perspective: legal, military, and public interest. If a case lacks merit or is not in the public interest, any of the three has the power to veto it. This high bar underscores that pursuing a soldier is momentous and should happen only if there is consensus.

Time limits

The Bill mandates that any investigation should take place within a year after the action in question has ended and should last no more than two years. An extension, if absolutely necessary, would need consent from the three officials listed above.

Handling of inquests and inquiries

Public inquiries

The Bill adds to the Inquiries Act 2005 a requirement that any such inquiry into operational military conduct may proceed only with consent from the same three officials referred to above.

Coroners’ inquests

The Bill aims to keep inquests fact-focused and informed. Requiring the coroner to consult an Expert Military Panel (see below) ensures the official record includes the context of the conflict. If a coroner were to consider a finding that a death was “unlawful killing” (potentially implying blame on a soldier), the Panel’s view on whether the soldier acted as per training and threat perception would be important and should be given weight.

Self-incrimination protection

The Bill extends self-incrimination protections to non-court settings. It prevents lawyers attempting to fish for cases by inducing soldiers to say something that then could be used to prosecute them.

Expert Military Panel

Composition

The Expert Military Panel would be composed of three members: a Major General (or equivalent) as chair, and two others of Lieutenant Colonel rank or below, all with significant and relevant operational experience appointed by the Crown. They are formally independent (though likely serving or recently retired officers).

Function

The Expert Military Panel would stand ready to be consulted by courts, inquests, or even the investigators/prosecutors, on matters of military expertise. For example, if a case deals with a decision to open fire, the panel can brief the court on rules of engagement, threat levels, what a reasonable soldier might have perceived, prevailing operational conditions and so on. The Bill mandates courts to seek their input on “operational military conditions” and legality of force. Judges must consider what they say, effectively injecting professional military judgement into the legal fact-finding.

Jurisdiction decentralisation

The Bill ensures that any civil lawsuits about military operations will be heard in the High Court and suggests that criminal trials in civilian courts should be heard by judges with appropriate experience. This reduces the risk of stray decisions by local courts unfamiliar with these issues. Concentrating cases in one court system helps consistency throughout the United Kingdom.

Other provisions

Legal aid and support

By removing means-testing, any accused soldier gets MoD-funded lawyers. This acknowledges that defending a case (especially a complex war-related one) can be hugely expensive and stressful. The state will bear that cost, as part of its obligation to those who serve.

Compensation scheme

Such a scheme will ensure that someone cleared after years of doubt may be entitled to compensation.

Suspension and career impact

The speedy resolution rule (i.e. six months target for cases involving suspended personnel) is about maintaining fairness and operational effectiveness. It would not be desirable to have skilled soldiers idle for years or leaving the service due to uncertainty. If the system cannot make a case in half a year, the person goes back to work.

Overriding other laws

Clause 25 specifies that the Act will prevail even if inconsistent with other statutes. It also amends the International Criminal Court Act to ensure that troops cannot be surrendered to the ICC in relation to a case covered by the Act’s protections. Normally, the ICC intervenes if a state is “unwilling or unable” to prosecute serious crimes. Since this Act does allow prosecution of war crimes, Britain would argue it is handling these properly and the ICC should not have a standing.

Summary

In summary, the Bill provides for government to authorise operations and remain democratically accountable; for the police and prosecutors to handle wrongdoing swiftly and internally with high oversight; and for courts to convict genuine criminals and to provide expert-informed judgements when needed, but not to second-guess strategic decisions or IHL-compliant actions.

Decisions about war and peace are traditionally executive (Crown) prerogatives, though regrettably, recent practice has been to seek Parliament’s assent for major deployments (e.g. the 2013 Syria vote). The Bill does not infringe on the prerogative as such; it explicitly provides for this. Ministers still decide to deploy force under the prerogative but will now back that decision with an authorisation under this Act to activate the legal protections. This is a blend of prerogative and statute which demonstrates that upholding the one is consistent with using the other to regulate undesirable consequences.

The Bill carries several implications:

For service personnel

The immediate implication will be a boost in confidence and morale. Knowing that the Government will defend their rights—to the point of changing the law to protect them—can reassure troops that they will not be penalised for doing their duty. This could aid retention. Concerns about legal witch-hunts have been cited as disincentives to service.[10] Serving soldiers will still be trained rigorously in IHL and their rules of engagement which will be much clarified.

Human rights and international perception

This Bill would signal a more assertive national stance in military affairs and benefit our international standing.

Northern Ireland and reconciliation

Specifically for Northern Ireland, the Bill would protect former soldiers from future Troubles-related prosecutions and inquests, thus achieving what was attempted under the Legacy Act 2023.

In summary, the Military Operations Bill would ensure that:

• troops acting in accordance with the law of armed conflict are protected from legal harassment;
• those breaching it still face justice; and
• decisions in war are recognised as the remit of elected governments and military leaders, with courts playing a supporting rather than a supplanting role.

The case for reform is both practical and constitutional. Practically, the present system has made possible the prolonged and repetitive processes which punish the innocent as well as the guilty, damaging morale, retention, and operational effectiveness. Constitutionally, it has helped shift the locus of authority over war from elected government and military command towards retrospective judicial reconstruction through the misapplication of peacetime human rights standards to armed conflict.

The Bill responds by re-establishing international humanitarian law as the governing framework for military operations, tightening the conditions under which cases may be initiated or reopened, and ensuring that any necessary scrutiny is underpinned by expert military judgement. It thus protects service personnel who act lawfully but also preserves the capacity to pursue genuine war crimes.

Implemented in a legal environment that prevents external human rights jurisprudence from reintroducing the same pressures by another route, the Bill would mark a decisive restoration of democratic and operational primacy in matters of national defence.

What these notes do

These Explanatory Notes relate to the Military Operations Bill as introduced in the House of [●] on [●].

• These Explanatory Notes have been prepared in order to assist the reader to understand the provisions of the Military Operations Bill and to help inform debate on it. They do not form part of the Military Operations Bill and have not been endorsed by Parliament.
• These Explanatory Notes explain what each part of the Bill will mean in practice; provide background information on the development of policy; and provide additional information on how the Bill will affect existing legislation in this area.
• These Explanatory Notes might best be read alongside the Bill. They are not, and are not intended to be, a comprehensive description of the Bill.

Overview of the Bill

1. The Bill establishes the primary legal framework governing the lawfulness of the use of force by military personnel, associated criminal and civil proceedings, and connected investigation and inquest procedures, relating to military operations.
2. The Bill redefines the threshold for the lawful use of lethal force by military personnel when acting in, or in connection with operations on active service under the authority of the Prime Minister / Secretary of Defence. In essence, where there is ministerial authorisation, and no contravention of the international law of armed conflict, subject to limited exceptions, there can be no criminal or civil prosecution brought or investigated.
3. The Bill balances the rights and protections afforded to combatants and military personnel post-operations as identified in the Wolfson Analysis to limit the scope of vexatious claims being brought against military personnel (see policy background below). This is achieved by way of judicial claims being dealt with contemporaneously, and any subsequent criminal investigations only being initiated on the basis of substantive new evidence.
4. The Bill ensures that, where an investigation takes place, the hierarchical nature of the military and other key players in the chain of command is properly accounted for.
5. The Bill will operate retrospectively subject to certain requirements to ensure that military operations carried out before the enactment of the Bill are also covered and afford protective rights to those military personnel that may be potentially unduly subject to criminal and civil proceedings.
6. The Bill will have jurisdiction within domestic and overseas operations and be founded on international humanitarian law.
7. The Bill contains 35 clauses, which are explained below.

Policy background

8. In June 2025, a review by Shadow Attorney General Lord Wolfson KC examined whether the UK should remain a signatory to, or if it should withdraw from the European Convention on Human Rights (ECHR). The document titled ‘Advice to the Leader of the Conservative Party Re ECHR’ was published on 2 October 2025 (the Wolfson Analysis) and looked at whether Britain could lawfully implement key Conservative policies while still being bound to the ECHR. The Wolfson Analysis concluded that the ECHR would create major barriers for the implementation of Conservative policies should Britain remain in the ECHR, which cannot be resolved with negotiations or repeals to the ECHR. Furthermore, it would be both legally and practically possible for Britain to leave the ECHR.
9. The Wolfson Analysis considers five tests on whether the UK should remain a signatory to, or withdraw itself, from the ECHR. One of these tests is ‘the veterans test’ which considers the role that the ECHR plays in claims against veterans both overseas and in the context of Northern Ireland legacy cases. In essence, the document explains that the ECHR is a major obstacle to doing justice to veterans who served in Northern Ireland, and to protecting current personnel from being subject to unfair process in future. The ECHR, though originally conceived as territorially limited, has been extended by the European Court of Human Rights (ECtHR) to apply extraterritorially wherever the UK exercises “authority and control.” This is most notably evident in the cases of Al-Skeini v United Kingdom (2011) and Smith and Others v Ministry of Defence (2013). As a result, both foreign civilians, and British soldiers abroad, fall within the scope of ECHR protection.
10. This doctrinal evolution has effectively displaced the traditional primacy of international humanitarian law in governing battlefield conduct and military decision-making. Article 2 (right to life) ECHR has developed beyond a prohibition on unlawful killing to include extensive procedural obligations to conduct effective investigations, including into historical deaths, following cases such as McCann v United Kingdom (1995) and Šilih v Slovenia (2009). In the Northern Ireland context, this has enabled renewed inquest and investigative processes decades after the original events. Article 3 (prohibition of inhuman or degrading treatment) ECHR has likewise been interpreted extensively, with cases such as Bouyid v Belgium (2015) lowering the severity threshold for violations. Factored in with Article 5 (liberty and security) ECHR, the ECtHR jurisprudence now imposes detailed, and at times, unpredictable constraints on operational, detention, and training decisions. Concerning combatants outside traditional international armed conflict frameworks. Furthermore, damages may be awarded for breaches arising from overseas operations.
11. The cumulative effects of these developments facilitate ‘lawfare’, particularly through coroners’ inquests and renewed prosecutorial scrutiny in Northern Ireland. The procedural obligation under Article 2 ECHR exposes veterans to lengthy, repeated, and overlapping exposure to inquests, investigations by the Independent Commission for Reconciliation and Information Recovery, and criminal proceedings.
12. There have been legislative attempts to address the shortcomings of this situation. The Overseas Operations (Service Personnel and Veterans) Act 2021 introduced a presumption against prosecution for overseas offences older than five years, and the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 sought to provide finality through conditional immunity in exchange for information. However, in Re Dillon and Others (2024), the Northern Ireland courts held that immunity provisions were incompatible with Articles 2 and 3 ECHR, and amnesty-like provisions under those in the 2023 Act were permissible in very limited circumstances. Both these measures are constrained by the ECHR framework and vulnerable to legal challenge.

Commentary on provisions of Bill

Part 1: Introduction

Clause 1: Affirmation of the essential principles of the operation of the military

13. Clause 1 sets out the purpose of this Act, and reaffirms that the Minister, the Defence Council, and the Chief of Defence Staff, are responsible for establishing the rules of engagement to be followed by military personnel in active operations. Military personnel are directed by their commanding officer at each level.
14. Clause 1 also reaffirms that international humanitarian law will exclusively regulate the use of force by military personnel in armed conflict, irrespective of whether this conduct takes place within the borders of the United Kingdom or outside. No court or tribunal will have any jurisdiction to question the lawfulness of the use of force by military personnel on active service that is authorised by the Minister, unless in the event where international humanitarian law is breached.
15. In advancing the purpose as established under clause 1, the Minister may authorise the use of force which will exclusively be regulated by international humanitarian law.

Part 2: Lawfulness of use of force

Clause 2: Authorisation of the use of force

16. Under clause 2, the Minister may grant an authorisation for the use of force by military personnel, where he is satisfied that the use of force is regulated exclusively by international humanitarian law.
17. Furthermore, the Minister has the power to issue a certificate to retrospectively certify that any use of force by military personnel before the enactment of this Act when acting in, or in connection with, operations on active service, shall be treated as if it was authorised under subsection 2(1).

Clause 3: Authorisation of the use of force: further provision

18. An authorisation must be granted in writing and signed by the Minister. In urgent situations, it is permissible for the Minister to grant the authorisation otherwise than in writing, but subsequently, such authorisation must be reduced to writing as soon as reasonably practicable and signed by the Minister. A failure to reduce the authorisation to writing under subsection 3(1)(b) will not affect the validity of the authorisation granted.
19. Subsection (3) clarifies that, without prejudice to the generality of the Minister’s power to grant an authorisation, an authorisation may:
    1. specify that the matters to which it relates shall be treated as an armed conflict of an international character or not of an international character;
    2. relate to an armed conflict generally or specify a particular act or acts;
    3. apply to all military personnel, particular classes of military personnel specified in the authorisation, or to a particular person or persons;
    4. apply in all places, or in any area specified in the authorisation (whether within the United Kingdom or otherwise); and
    5. be subject to conditions specified in the authorisation.
20. Subsection (4) enables the Minister to vary or revoke an authorisation at any time. The procedural formality set out under subsection (1) will apply to any such variation or revocation of an authorisation as it does to the grant of an authorisation.
21. An authorisation will remain in effect until it expires in accordance with its terms, or where an authorisation contains no such terms, until the Minister revokes it under subsection (4).
22. Subsections (6)-(8) require that the Minister provides a copy of any authorisation to the Panel as soon as reasonably practicable after it is granted. Additionally, unless the Minister considers that it would be contrary to the interests of national security, a copy of the authorisation must also be submitted before Parliament after it is made. Where the House of Commons resolves for the authorisation to be revoked, the Minister must make a statement on whether to accept that resolution or explain why a revocation is not necessary.
23. Clause 3 applies to clause 2(3) certificates as it does to clause 2(2) authorisations, except that, for certificates issued under clause 2(3), clause 3(1)(b) shall not apply, and such certificates cannot be revoked or varied so as to reduce its scope.

Clause 4: Non-justiciability of authorisations

24. The courts cannot question the validity of any authorisation granted, or certificate issued by the Minister in any legal proceedings.

Clause 5: General effect of authorisation

27. Where the Minister authorises the use of force by military personnel, the use of such force will be lawful for all purposes, subject to the provisions of clause 5, and no person shall be liable under criminal law or civil law of any part of the United Kingdom for the use of force that is authorised. Where the use of force is not authorised, this does not of itself render the use of force unlawful.
28. Subsection (3) sets out that though the use of force by military personnel may be authorised under this Act, it shall nonetheless be unlawful where such force amounts to an offence under:
29. 1. section 1 of the Geneva Conventions Act 1957;
    2. section 1 of the Genocide Act 1969 (before its repeal);
    3. section 2(1)(a) of the Chemical Weapons Act 1996;
    4. section 2(1)(a) of the Landmines Act 1998;
    5. sections 51-52 and 58-59 of the ICC Act;
    6. sections 1-2 of the International Criminal Court (Scotland) Act 2001;
    7. part 1 of AFA 2006;
    8. section 2(1)(a) of the Cluster Munitions (Prohibition) Act 2010; or
    9. an ancillary offence which relates to an offence under paragraphs (a)-(h) of this subsection.
30. Subsection (4) clarifies that for the purposes of clause 5(3)(g), an offence under Part 1 of AFA 2006 does not include an offence under section 42 of AFA 2006 unless this act that is punishable by the law of England and Wales is an offence under a provision of an enactment listed in clause (3)(a)-(f) or (g), or an ancillary offence relating to such an offence.
31. Subsection (5) grants the Minister the power to amend, by way of regulations, the list of enactments at subsection (3) in line with what constitutes international humanitarian law.

Part 3: Criminal investigations and proceedings

Clause 6: Effect of authorisation on criminal proceedings and criminal investigations

29. Where the Minister grants an authorisation, no criminal investigation or proceedings may be initiated or continued against current or former military personnel except in accordance with Part 3 of this Act.

Clause 7: Threshold for undertaking significant steps in criminal investigations against military personnel

30. Under subsection (1), no “significant steps” can be taken in criminal investigations against military personnel in relation to the use of force, unless the prosecuting authority is satisfied that the investigation is in the public interest and that there are compelling grounds to believe that the use of force was not authorised for the purposes of this Act, or that the use was authorised for the purposes of this Act and carrying out the investigation would likely yield evidence that the use of force was nonetheless unlawful under clause 5 of this Act.
31. However, subsection (2) clarifies that nothing under subsection (1) prevents the arrest of a person for an offence which would otherwise be lawful where it is reasonably necessary to arrest that person before the prosecuting authority has been able to determine whether it is satisfied of the matters set out under subsection (1).
32. Where a person is arrested in circumstances permitted by subsection (2), or where a criminal investigation is initiated prior to the enactment of this Act, and the investigation is ongoing on the day on which this Act is passed, and is an investigation in which a significant step has been undertaken, the investigation may not be continued unless the prosecuting authority determines within 7 days that it is satisfied of the matters set out in subsection (1).
33. Subsection (4) clarifies that under clauses 7 and 9, a “significant step” means:
    1. the arrest of current or former military personnel;
    2. questioning of current or former military personnel with a view to determining whether that person has committed an offence; or
    3. the exercise, in relation to current or former military personnel, of any power to gather evidence or information by compulsion under any enactment, instrument or rule of law.

Clause 8: Threshold for instituting criminal proceedings against military personnel

35. Subsection (1) clarifies that no criminal proceedings may be brought in relation to the use of force by a person who at the time of the alleged offence was military personnel unless the prosecuting authority is satisfied that:
    4. it is in the public interest to institute criminal proceedings; and
    5. on the basis of compelling evidence, it is more likely than not that the person will be convicted of an offence because:
       1. the use of force was not authorised for the purposes of this Act and an offence has been committed; or
       2. if the use of force was authorised for the purposes of this Act, the use of force was nonetheless unlawful under clause 5.
36. No criminal proceedings to which clause 8 applies which were commenced prior to the coming into force of this Act, which are pending on the day on which this Act is passed, can continue unless the prosecuting authority within 7 days of this Act being passed is satisfied of the matters set out under clause 8(1), and in the event where a certificate is issued pursuant to clause 2(3) after this Act is passed which is relevant to the proceedings, the prosecuting authority determines within 7 days of issue of the certificate that it is satisfied of the matters specified in subsection (1).

Clause 9: Threshold for reopening criminal investigations and proceedings

37. In the instance where a criminal investigation has concluded (whether before or after the passage of this Act), a significant step relating to the same or substantially the same subject matter as the previous investigation cannot be undertaken unless:
38. 1. carrying on the further investigation would be consistent with clause 7(1);
    2. there are reasonable grounds to believe that new and compelling evidence would be adduced; and
    3. there is a real prospect of criminal proceedings being instituted following the conclusion of the investigation.

38. In the instance where criminal proceedings have concluded (whether before or after the passage of this Act) and new criminal proceedings, relating to the same, or substantially the same subject matter as the previous proceedings could otherwise lawfully be commenced, such proceedings cannot be commenced unless the prosecuting authority is satisfied that instituting the proceedings would be consistent with clause 8(1) and that there is new and compelling evidence.

Clause 10: Discharge of functions of prosecuting authority

38. Clause 10 applies to instances where the prosecuting authority is determining whether it is satisfied of matters for the purposes of clauses 7(1), 8(1), 9(1), and 9(2). It requires that the prosecuting authority consults, has regard, and gives significant weight to the views of the Panel, on factors including, the operational context in which the use of force occurred, interests of national security, and whether the military operation in question has been the subject of any previous enquiry.

Clause 11: Requirement for consent in connection with proceedings concerning active service

39. The consent of the Chief of Defence Staff, the Attorney General, and the prosecuting authority (acting personally) is required before a criminal investigation can be commenced, continued or re-opened. In considering whether to give consent, the Attorney General and the prosecuting authority will have regard to the matters set out under clause 10(3).
40. Subsections (3) and (4) clarify that nothing under clause 11(1) prevents the arrest of a person for an offence which would otherwise be lawful where the arrest is necessary before it has been practicable to obtain the consent pursuant to clause 11(1). In this instance, the investigation cannot be continued unless the consent is obtained under clause 11(1) within 7 days of the arrest being made.

Clause 12: Time limits for initiating criminal investigations against military personnel

41. Subsection (1) provides that a criminal investigation under Part 3 of this Act must be commenced within 12 months of the end of the operation and concluded no longer than 2 years from the date on which consent was provided under clause 11 of this Act.
42. These periods can be extended with the consent of the Attorney General, the prosecuting authority (acting personally), and the Chief of Defence Staff, where each of them, following consultation with the Panel (except in urgent cases), considers that there are strong grounds of public interest to do so, and either that there are reasonable grounds to believe that new and compelling evidence would be adduced in any criminal proceedings instituted at the conclusion of the investigation, or that there is an immediate requirement to arrest or detain an individual.

Clause 13: Meaning of “new and compelling” evidence

43. For the purposes of Part 3 of this Act, new and compelling evidence is:
    1. admissible in criminal proceedings;
    2. obtained from a credible source;
    3. not reasonably available at the time of the earlier investigation or proceedings (as the case may be);
    4. not merely corroborative of evidence that was reasonably available at the time of the earlier investigation or proceedings (as the case may be); and
    5. provides compelling evidence that the accused committed the offence.

44. In the event that there has been no earlier investigation or proceedings, consideration would need to be had of such evidence that would have been available had a reasonably diligent investigation of the facts been undertaken.

Part 4: Inquiries and inquests

Clause 14: Procedure for inquiries into particular operations

45. The consent of the Chief of Defence Staff, Attorney General, and the prosecuting authority (acting personally) is required before a specified inquiry can be commenced or continued. In considering whether to give consent, the Attorney General and the prosecuting authority will have regard to the matters set out under clause 10(3).
46. A specified inquiry is one which is held under the Inquiries Act 2005, the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, or established by a public authority, but excludes a service inquiry conducted pursuant to provision made under Part 16 of AFA 2006.
47. Clause 14 applies to specified inquiries commenced before this Act was passed.

Clause 15: Threshold for holding further inquiries

48. Clause 15 applies to any specified inquiry where there has at any time already been a specified inquiry into the same or substantially the same circumstances. Any such specified inquiry may only be commenced or continued where the Attorney General certifies that there is new and compelling evidence, and that such an inquiry would be in the public interest. In assessing whether such a certificate must be granted, the Attorney General will have regard to the matters set out under clause 10(3). What constitutes as “new and compelling” evidence is set out under subsection (4).

Clause 16: Requirement to consult the Panel in connection with inquests

49. The coroner, and any jury, in conducting a specified inquest in determining to return a verdict of lawful or unlawful killing must consult the Panel where the coroner considers this appropriate, and in any event, before the end of the inquest. Any representations made by the Panel must be regarded and given significant weight.

Clause 17: Protection against self-incrimination etc

50. Where a person is subject to clause 17 for criminal investigation, or proceedings in relation to matters to be considered at a specified inquest or specified inquiry, they should not be compelled to attend that inquest or inquiry for the purpose of giving evidence, or be required to produce evidence. Subsection (2) provides that, similarly, no such compulsion should be made to attend an inquest or inquiry if doing so would be liable to cause criminal investigation or proceedings to be commenced against such individual.
51. No adverse inference may be drawn from a person’s refusal to produce evidence under subsections (1) and (2). As per subsection (4), any evidence provided by a person under clause 17 at a specified inquiry or specified inquest will not be admissible in criminal proceedings against that person, except in the case of perjury or for another offence specified in regulations made by the Lord Chancellor.
52. Subsection (5) confirms that clause 17 applies to persons who were military personnel at the time of matters which are being investigated by the specified inquiry or specified inquest.

Part 5: Establishment of the expert military panel and procedural requirements for criminal and civil proceedings in connection with particular operations

Clause 18: Application of this part

53. Part 5 of this Act applies to:
    1. criminal or civil proceeding brought against persons in respect of the use of force arising out of, or in connection with, their functions as military personnel during active service; and
    2. civil proceedings brought against a public authority (including the Crown) where it is alleged that the authority is liable for the conduct of another person in respect of the use of force arising out of, or in connection with, their functions as military personnel during active service.

Clause 19: Expert Military Panel

54. The Expert Military Panel will consist of 3 members, as appointed by His Majesty by warrant under the sign manual. The constitution will be a Major General serving in His Majesty’s forces, and 2 military personnel as nominated by the Chief of Defence Staff, who have attained the rank of Lieutenant Colonel or lower and who have suitable experience. This Panel will give evidence and assistance as the court requires on criminal or civil proceedings for the purpose of carrying out its function.
55. The purpose of the Panel is to provide independent expert advice on the matters listed under subsection (3).

Clause 20: Requirement to consult the Panel in criminal and civil proceedings

56. Clause 20 sets out that the court must consult the Panel where it considers appropriate, and in any event, before the determination of any proceedings, in determining any criminal or civil proceedings to which Part 5 of this Act applies, in respect of operational military conditions, and any issues concerning the lawfulness of the use of force. Correspondingly, the court and any jury must have regard to any representations made by the Panel and give them significant weight in determining any criminal or civil proceedings.

Clause 21: Jurisdiction and venue

57. Any criminal proceedings to which Part 5 applies should be commenced pursuant to Part 2 of AFA 2006 or before a civilian court (within the meaning of section 374 of AFA 2006) in England and Wales. Any civil proceedings to which Part 5 applies should be brought before the High Court of England and Wales.
58. Proceedings brought under subsections (1)(b) or (2) shall be heard in London unless the parties to any proceedings otherwise agree.

Clause 22: Legal aid for criminal and civil proceedings

59. The Lord Chancellor, must, within 3 months of the passing of this Act, by way of regulations, amend the provision made by or under Part 1 of LASPO so that civil legal services are made available to current and former military personnel against whom civil proceedings are brought. In addition, the regulations must ensure that criminal legal aid is made available to current and former military personnel subject to any criminal investigation or criminal proceedings. Current and former military personnel must be exempted from the requirement under section 21(1) of LASPO and criminal legal aid must be made available to current and former military personnel without any consideration of the merits of the case against them.
60. The Minister, through regulations, may establish a scheme for the payment of compensation for military personnel in respect of any adverse impact on military personnel who are subject of civil or criminal proceedings in relation to active operations.

Clause 23: Requirement to notify the relevant prosecuting authority of suspension

61. Where military personnel are required to be ceased, suspended, or materially restricted in the performance of their duties as a result of criminal investigations, criminal proceedings, or civil proceedings, the authority imposing such restriction must notify the prosecuting authority within 5 days of such restriction unless it would be contrary to the interests of national security to do so. The exception to notify ceases to apply where the suspending authority considers that it would no longer be contrary to the interests of national security to make the notification.

Clause 24: Time limit for conclusion of proceedings where duties are suspended

62. Where a notification is given under clause 23(1), the relevant prosecuting authority must take all reasonable steps to ensure that the relevant criminal investigation or proceedings are concluded expeditiously, and in any event, within 6 months beginning on the date of receipt of the notification under clause 23. This period may be extended by the court, with the consent of the Attorney General and the Chief of Defence Staff, for a period of a further 6 months in instances where the matter is impracticable to conclude within that period or the delay is directly attributable to the conduct of the accused or the defendant.
63. Where an investigation or proceedings is not concluded within the period specified in subsections (2) or (3), the suspending authority can no longer materially restrict military personnel from the performance of their duties as a result of that investigation or those proceedings.
64. Nevertheless, the failure to conclude a criminal investigation within the time limits contained in this clause 24 does not prevent the institution of criminal proceedings, or the initiation of a further criminal investigation, without prejudice to the provisions of Part 2 of this Act.

Part 6: Miscellaneous and final provisions

Clause 25: Primacy of this Act

65. This Act has effect irrespective of any provision made by or under the legal frameworks set out under subsection (1) including any enactment whether made before or after this Act, relating to criminal proceedings, criminal investigations or inquests concerning the use of force by military personnel.
66. Furthermore, subsections (2) and (3) clarify those sections of the HRA 1998 and ICC Act that do not apply under this Act.
67. Subsections (4) and (5) set out that for the purposes of the law of homicide, where the use of force by military personnel is authorised for the purposes of this Act, an enemy, or a person reasonably believed to be an enemy is killed by military personnel on active service, and the killing of the deceased is not unlawful the killing shall be lawful, and the deceased (if an enemy) shall be treated as not being under the King’s peace.

Clause 26: Disapplication of inconsistent duties

68. Any duty, requirement, or obligation imposed by another enactment (either passed or made after this Act) or rule of law that is inconsistent with a provision of this Act will not apply.

Clause 27: Extraterritorial application

69. This Act applies to the use of force by military personnel outside the United Kingdom as it does within the United Kingdom.

Clause 28: Consequential provisions

70. The Secretary of State has the power to make regulations that amend or repeal any enactment or subordinate legislation passed before or in the same session as this Act.

Clause 29: Regulations etc

71. A statutory instrument containing regulations under this Act will be laid before Parliament after it has been made and it will be subject to annulment in pursuance of a resolution of either House of Parliament.

Clause 30: Financial provision

72. Clause 30 clarifies which expenditures will be covered by the money provided by Parliament.

Clause 31: Interpretation

73. Clause 31 sets out the meanings of the terms which are capitalised and otherwise not defined within this Act.

Clause 32: Crown application

74. Clause 32 sets out this Act’s application on Crown powers and interests.

Clause 33: Commencement

75. Clause 33 confirms that this Act will come into force on the day after the day on which it receives Royal Assent.

Clause 34: Extent

76. Clause 34 confirms that this Act extends to England and Wales, Scotland and Northern Ireland. This Act can be ordered to extend to, with or without modifications, to the Channel Islands, the Isle of Man, and the British overseas territories.

Clause 35: Short title

77. Clause 35 confirms the short title of this Act.

[1] Tom Cotterill, “SAS soldiers resign over war crime ‘witch hunts’”, The Telegraph, 20 April 2026. (link)

[2] The Prosperity Institute has previously published papers and draft legislation on this matter. See Suella Braverman and Guy Dampier, Why and How to Leave the ECHR: Roadmap to Freedom (London: Prosperity Institute, 2025) (link); Damien Shannon, Leaving the European Convention on Human Rights: A Draft Bill (London: Prosperity Institute, 2026) (link).

[3] Michael Giannangeli, “British taxpayers paying millions a week to MoD”, Daily Express, 12 January 2014. (link)

[4] This was a case in which, in 1982, Gervaise McKerr and two other unarmed men were shot dead in their car by police in Northern Ireland. McKerr v United Kingdom App no 2883/95 (ECtHR, 4 May 2001). (link)

[5] Al-Skeini v United Kingdom App no. 55721/07 (ECtHR, 7 July 2011). (link)

[6] Smith and others (FC) (Appellants) v The Ministry of Defence (Respondent) [2013] UKSC 41. (link)

[7] Lex specialis is derived from the legal maxim lex specialis derogat legi generali, which means that more specific rules will prevail over more general rules. The term is frequently used in describing the relationship between international humanitarian law and international human rights law.

[8] The Prosperity Institute’s work on how to leave the ECHR and repeal the HRA provides the legal mechanism for it in Shannon, Leaving the European Convention on Human Rights: A Draft Bill.

[9] Connor Ibbetson, “Northern Ireland: Britons want to see immunity for British soldiers, but not loyalists or the IRA”, YouGov, 22 June 2021. (link)

[10] UK Parliament, Defence Select Committee, Drawing a line: Protecting veterans by a Statute of Limitations, seventeenth report of session 2017–19, 16 July 2019. (link)