Warfare of lawfare

This article was first published in The Critic.

The debate about the hounding of veterans through the courts has long been presented in terms of fairness. This is indeed one side of the story. No decent country should tolerate servicemen being dragged through repeated investigations decades after the events in question, often without new evidence and after previous inquiries have already reached their conclusions. 

But focusing only on veterans misses an even more urgent point: this has become a national security threat.

Over the past two decades, the legal framework governing military operations has changed. Courts have increasingly applied standards developed for peacetime to scrutinise wartime situations of uncertainty and danger which often demand split-second judgement. Human rights law, designed principally to regulate relations between the state and individuals, has increasingly been applied to military operations, including to situations already governed by the Law of Armed Conflict. 

This is having consequences on the battlefield. Personnel who believe that a lawful decision taken in combat may be reconstructed years later in a civilian courtroom are now incentivised to be more cautious, more process-driven and less willing to exercise initiative. That hesitation can slow decisions in situations where delay may place lives and the success of an operation at risk. The prospect of repeated investigations and prolonged legal uncertainty is also damaging morale and contributing to experienced personnel leaving the service, depriving the Armed Forces of skills and judgement that are difficult to replace.

This is why the Prosperity Institute has published the Military Operations Bill, presented to Parliament this week by Sir David Davis MP. It reasserts the principle that combat operations should be judged primarily by the Law of Armed Conflict. Courts have an important role in punishing wrongdoing, but they should not become alternative command structures reviewing military judgement from the safety of hindsight.

The Bill tackles the issue of lawfare through several other mechanisms.

It sets high thresholds and firm time limits for investigation and prosecution; and it requires compelling new evidence, and approval from the Defence Secretary, Attorney General, and Chief of the Defence Staff before any case can begin or be reopened.

It also requires coroners to consult an Expert Military Panel in combat-related deaths and seek their input on operational military conditions and legality of force. Judges must consider what the Panel says, thus injecting professional military judgement into the legal fact-finding. This panel would be composed of three serving or recently retired officers with significant and relevant operational experience.

Finally, the Bill guarantees full legal aid for serving and former personnel facing investigations of this kind, provides for compensation when those are excessively prolonged, and requires cases involving suspension of service personnel under investigation to be resolved swiftly. 

The first duty of any government is the defence of the realm. That duty demands capable armed forces, and therefore a legal framework that supports rather than undermines their effectiveness.

That does not mean abandoning accountability. Serious breaches of the law of armed conflict must always be investigated and punished. The Military Operations Bill explicitly preserves criminal liability for war crimes and other grave offences. 

Should lawful military actions remain vulnerable to years of repeated legal challenge long after the facts have been established? The answer should be “no”. Accountability must remain rigorous, but it must also be fair, timely and grounded in the realities of warfare. 

Britain cannot maintain effective armed forces if those asked to make the hardest decisions on its behalf are left exposed to indefinite legal uncertainty. The Military Operations Bill offers a practical route to restoring that balance.