Demilitarising the Military – 2
A second form of attack on one of Britain’s most respected institutions, the armed forces, was displayed also during the week beginning 4th May, along with the pressure to allow women into the infantry and armoured combat units of the British Army (Britain Watch, May 13th).
This attack takes the form of claiming that British troops have breached the UK Human Rights Act 1998, or the European Convention on Human Rights (1951) or the Geneva Convention on the conduct of war (1949). The latest confected outrage is to do with two RAF servicemen who, with their comrades in arms, defeated a fierce attack by Taliban “insurgents” on Camp Bastion in Afghanistan in 2012, an attack in which two US servicemen were killed, several Britons were injured and about £100 million worth of aircraft and spares were destroyed. Prince Harry was stationed on the base at the time. In the immediate aftermath of the attack the two RAF servicemen took a photo of one dead member of the Taliban insurgents (who were dressed in US Army uniforms). One of the servicemen was shown giving the thumbs-up sign.
Public comment on the picture
The Ministry of Defence (MOD), instead of brushing the “incident” aside as a fact of war that our soldiers were relieved to have killed someone bent on killing them, is determined rather to get the military police “to investigate the incident” which “it takes very seriously”.
It is a very great pity that Admiral Alan West, former security minister in the Brown Labour government, former chief of naval staff and a distinguished veteran of the Falklands War, should have weighed in with a remark to the effect that “the incident – though clearly against the Geneva Convention – had to be seen in the context of the men having survived a deadly firefight.”[1]
This cued in American Joanne Mariner, Crisis Response Advisor at Amnesty International, with a burst of confected outrage: “The pictures are appalling. They violate common humanitarian law standards (sic) including article 3 of the Geneva Convention which prohibits the disrespectful and degrading treatment of the bodies of dead combatants.”
One wonders how Miss Mariner describes the practice of the Taliban of hacking away at live prisoners’ necks to cut off their heads while on TV. Far from the RAF pictures being deemed by the Taliban as “inappropriate” (the MOD weasel word) and used in their incessant propaganda war against us, it is doubtful if anyone in the Arab world will have given the RAF pictures more than a passing glance, if that.
Applicability of the Geneva Convention
As a matter of fact, it is not at all obvious that Taliban fighters are protected by the rules of war as laid down by the Geneva Conventions, since these conventions (1884, 1906, 1925, 1949) were drawn up to protect live combatants from ill-treatment by their enemies. Article 3 which Mariner cited, says nothing about the treatment of bodies, it being the accepted responsibility of each side to recover their own bodies for burial. When the last Geneva Convention version was drawn up in 1949, the British Army and the police in Malaya (1949-58) would regularly lay out dead terrorists outside police stations to show the non-combatant Malayans what could happen to them if they got involved with the insurgency. No-one, either in Britain or Malaya, thought this practice to be anything but a sensible warning to the general population and an encouragement to the insurgents to surrender or give up before the same thing happened to them.
Commentary (1958) by Jean Pictet on Combatants protected by the Geneva Convention
In the period 1948-1960 Jean Pictet was director for general affairs of the International Committee of the Red Cross, the world’s foremost humanitarian organisation, founded in 1859. The Geneva Conventions (GC) were drawn up by it and it has done its level best to ensure that their provisions are adhered to in often terrifying circumstances.
Pictet’s commentary is archived in the US Library of Congress at JX5136 A482 1949d. He focusses on what counts as an action where the combatants are or are not covered by the GC. Three major points are:
(1) An action where combatants are caught fighting while wearing the uniform of the other side is unlawful under the rules of war drawn up by the GC and is described as “perfidy”. These combatants are therefore outside the protection of the rules of war agreed to by the 196 signatories of the 1949 GC.
(2) Combatants must be in units commanded by a legally appointed responsible officer to whom (if still alive) representations as to the treatment of enemy troops can be made.
(3) Attacks (on e.g. a police station) by groups of a dozen or so combatants with no officer or other formal organisation, within the territory of a signatory state are unlawful in terms of the GC, and outside its protection.
It seems clear that while Western troops are of course subject to their own military law, in fighting the Taliban or other insurgents, the Geneva Convention does not apply. Even when fighting against the legally constituted forces of a legal state as during the Second World War, enemy combatants captured while wearing their opponents’ uniform have been deemed liable to the death penalty. This was in fact imposed by the US authorities on some German soldiers captured in US uniforms during the Ardennes offensive of December to January 1945.
Attempts to impose the 1998 Human Rights Act (HRA) on British forces fighting overseas
Two of the chief means of bringing the Armed Forces into the HRA net is to demand an inquest into soldiers’ battlefield deaths, and to follow this up whether the inquest is granted or not, by a demand for compensation.
In Britain, the Supreme Court has (just) held the line against these demands by lefty lawyers using legal aid, by declaring that HRA does not apply to overseas operations, but in Australia an inquest into the deaths of three soldiers in 2012 will investigate allegations about commanders’ decisions and army procedures.
While the Queen’s Regulations in all Crown forces have ample rules against gratuitous violence, dereliction of duty, and misuse of military property, nobody can be expected to fight in a battle with the ardour, risk and split-second decision-making required to overcome a ruthless enemy (see companion post of May 13th), knowing that a bunch of anti-military lawyers is gathered in London or Canberra to use against them Human Rights legislation designed for civilian life.
If HR legislation did penetrate Military law in these and other ways, it would amount to the civilianisation of the Armed Forces – their demilitarisation in effect.
Moves against subjecting the Armed Forces to Human Rights Legislation
Thankfully, the UK Ministry of Defence has shown signs of resisting this pressure.
Philip Hammond, Secretary of State for Defence, recently announced that the “Government was prepared to introduce primary legislation” to combat the problem. In the view of this writer, such legislation should:
(1) Exempt the Armed Forces entirely from the UK HRA outside the United Kingdom;
(2) Specifically put the UK Armed Force anywhere beyond the reach of the European Convention on Human Rights and its court in Strasbourg, France;
(3) Prohibit the use of legal aid and other public funds being used by UK or foreign lawyers to bring actions against any UK citizen or government department;
(4) Restrict the use of Coroner’s Inquests to military personnel not “killed in action”.[2]
Endnotes
[1] Sunday Telegraph report, May 11th 2014.
[2] This prohibition would not extend to publication of the results of enquiries into the performance of military equipment for instance.
