Military Action Under Lawfare: Conflicting Codes Impede Decisions

Over recent years, there has been much discussion of the impact of law on military operations, with controversy around the impact on the chain of command from human rights rulings, the growth of so-called ‘lawfare’ and a range of civil legal proceedings, from service personnel suing for injuries sustained through to coroners’ courts. There have also been a series of investigations into alleged war crimes by UK Service personnel in overseas theatres, which have yielded a tiny number of criminal convictions but large numbers in civil payouts. This article is focused exclusively on the changing framework of law which governs the UK armed forces outside the United Kingdom and its dependencies, although there is also much controversy around UK law for forces on operations, especially in Northern Ireland.

In 2014, the House of Commons Defence Committee produced a report on this subject: UK Armed Forces Personnel and the Legal Framework for Future Operations. This pointed out that there are two very different, and sometimes conflicting, legal frameworks for overseas operations. On the one hand, the traditional Law of Armed Conflict (LOAC), or International Humanitarian Law (IHL) as it is sometimes called; in particular the Geneva Conventions of 1949 and the Geneva Protocols of 1977. On the other, more recently, there is Human Rights Law (HRL).

The Committee concluded that changes were needed, both to clarify the situation and to make it workable for our forces. Without making many detailed proposals the then-committee warned that serious potential problems were emerging and recommended that the government needed to study the increasingly complex situation and ‘should take proactive steps to reconfirm the primacy, continued value and distinct nature of IHL.’ Successor committees have not yet revisited the subject at any length.

Until recently, our armed forces had been subject to LOAC/IHL from its inception in customary international law going back to the 19th century, through a number of more recent treaties up to and including Geneva. In 2011, however, a decision by the European Court of Human Rights (ECHR) in the Al Skeini case brought the armed forces of all signatory countries under its jurisdiction, and the framework of human rights law, in most circumstances, even when operating outside the Convention’s geographic space. This has implications for a wide range of aspects of war, from prisoner handling to rules of engagement. Lord Sumption, the former Supreme Court judge has remarked that the Court ‘. . . created havoc by ruling that there was no right to detain captured Taliban fighters as prisoners of war without complying with regulations designed for policemen turning in pickpockets at European police stations.’

This opened a deluge of civil claims from individuals in Iraq and Afghanistan. By November 2021, payouts to people in those countries had reached £32 million. At the same time there was an investigation of lawyers chasing cases and bribing witnesses which resulted in UK lawyer, Phil Shiner, (whose firm was ironically called ‘Public Interest Law’) being struck off as a solicitor and given a suspended prison sentence for fraud.

Separately from lawfare by overseas players is the issue of the application of HRL to the concept of Duty of Care by the UK courts, where UK service personnel or their families are the litigants. This is almost always civil rather than criminal – although there is a potential for criminal prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007, which has not so far been used in a military context. Nevertheless, the reputational damage which commanders may face in civil liability cases and in coroners’ courts is potentially career ending. In the past, commanders on active service have been protected from negligence claims by the concept of combat immunity. But scope for such claims has extended considerably since the case of Smith and Others (FC) v MoD in 2013. The Supreme Court ruled, on a majority verdict, that linked cases related to active service in Afghanistan could proceed to trial because they fell within the scope of Article 2 of the ECHR. The Challenger claims and Ellis negligence claim ‘could also proceed to trial on the ground of falling outside the scope of combat immunity or on the ground that it would be fair, just or reasonable to extend the MoD’s duty of care to those cases (para. 101).’

Former UK commanders have repeatedly spoken out about concerns on lawfare and the confused state of military law. In a letter to the Times, last November, nine former four star generals warned:

‘Today every deployed member of the British armed forces must consider not only the enemy in front but the lawyer behind . . . the fear that lawful actions may later be judged unlawful will paralyse decision-making, distort rules of engagement and deter initiative.’

Part of their concern related to proceedings in Northern Ireland which, being subject to UK law, is outside the scope of this piece, but they echo concerns expressed as far back as 2018 by former US commander in Iraq and Afghanistan, General David Petraeus, who had paid tribute to UK armed forces, yet commented:

“. . . Britain's considerable fighting capacity will be greatly diminished if it cannot reform the legal framework within which it fights, restoring the primacy of the law of armed conflict.”

In 2016, the then government made a pledge to ‘protect our Armed Forces from persistent legal claims by introducing a presumption to derogate from the European Convention on Human Rights (ECHR) in future conflicts’. This would, if applied, bring Britain in line with a number of European allies, including France. At the time it was highly controversial, but has not, in practice, been invoked in any of the small conflicts Britain has been involved in since.

In fact, while much of the legal establishment opposed this pledge, others have pointed out that such derogation by no means ends the role of human rights law and the supremacy of that court. For example, a paper from Policy Exchange’s Judicial Power Project points out that, while derogation would suspend Article 5 and the Right to Liberty, removing the basis for cases alleging unlawful arrest and detention, it would not suspend others, including Article 2 and Article 7, both of which are specifically ‘non-derogable’ under the ECHR Treaty. Article 2 grants the right to life ‘except in respect of deaths resulting from lawful acts of war’ – with the ECHR ultimately determining what was lawful, rather than the British legal system, starting with a court martial, based on LOAC, as would otherwise be the case. Article 7 forbids punishment without legal process, which sounds sensible in peacetime but ignores the practicalities of small numbers of soldiers handling for example large numbers of prisoners – or looters rioting in a recently captured city, with vulnerable civilians at risk. A commander would face a temptation to turn a blind eye to civilian casualties rather than risk prosecution by intervening in a manner which a court years later might rule heavy handed.

In 2021, the then Conservative government passed the Overseas Operations (Service Personnel and Veterans) Act 2021, which MoD said ‘introduces measures which require that the uniquely challenging context of overseas military operations, and the exceptional demands and stresses to which Her Majesty’s forces are subject on such operations, are taken into account in legal proceedings arising from historical overseas operations.’ Its major feature is the application of the so-called ‘triple lock’ to criminal prosecutions:

• A presumption that it is to be exceptional for a prosecutor to determine that a Service person or veteran should be prosecuted for alleged offences on operations outside the UK.
• A requirement that prosecutors, in deciding whether or not to prosecute, give particular weight to certain matters, including, the adverse impact of overseas operations on the mental health of a Service person and whether compelling new evidence has become available.
• The requirement for the consent of the Attorney General or equivalent law officer.

When the bill went through Parliament, it was hotly debated, and a number of provisions were removed or attenuated. One clause removed was a statutory requirement on the Secretary of State to consider derogation from the ECHR on commencing a new operation. Another was to remove a presumption against prosecution after more than five years for certain serious charges, including genocide and torture.

The central issue remains that UK forces fighting a war abroad are subject to HRL as well as LOAC, with the European Court of Human Rights the ultimate arbiter under a range of circumstances, instead of courts martial and the UK appeal system, finding on the basis of LOAC alone.

A further complication is that Britain has signed up to the International Criminal Court (ICC) and, from 2014-20, that court carried out an investigation of alleged British atrocities against detained prisoners in Iraq from 2003-08. It concluded that the matter should not be taken further as Britain was investigating and the ICC has no jurisdiction over allegations so long as the relevant nation demonstrates its willingness and ability to carry out its own bona fide investigation and, if necessary, trial. It has, however, been suggested that UK withdrawal from the ECHR could lead to a more active role by the ICC. It is perhaps relevant to draw a parallel here with the attitude of the (entirely separate) International Court of Justice on the Chagos Islands’ status – a parallel because it highlights that allowing an international court to rule on vital security issues raises wider questions of judicial neutrality and the national interest.

It is hard to disagree with authorities from Lord Sumption to General Petraeus to many former British military commanders that there is only one way to restore confidence to the chain of command – that is to withdraw matters of war from international courts and handle them entirely within the British legal system – on the basis of the Law of Armed conflict. That can only be achieved by withdrawal from, rather than partial derogation from, the ECHR and the ICC. The UK owes a great deal to those it places in harm’s way. Protecting them from legal action by foreign bodies after they have served in war should surely be part of the repayment of that debt.

© RUSI, 2026.

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