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With Trust in the Government”. Anne Palmer. Written July 16th 2005.

It was strange to read in Hansard, (14th July 2005) that before going to war, Lord Boyce, as Chief of the Defence Staff, allegedly sought assurance that armed intervention in Iraq was lawful under public international law, the chain of our command of our armed forces entered a new dimension for no such assurance had ever been sought before.

A report in the Daily Mail (Written by Gordon Rayner, May 23rd 2005) headlines, “Torment of officer facing threat of War Crime Trial”. “A Decorated Army Commander could become the first British Officer to be prosecuted for war crimes”. This stems from the death of Baha Musa in custody in Iraq and there is no doubt that those responsible must be brought to justice. However what is hanging over Colonel Jorge Mendonca and other soldiers is that the case may be referred to the International Criminal Court in that he failed to prevent soldiers under his command, a war crime by assaulting Iraqi detainees on Sept 13th. Although there is absolutely no suggestion that Colonel Mendonca was involved in any way, an army enquiry is trying to establish whether the entire chain of command was complicit in the alleged abuse.

There are two sides to this argument, and I quote Lord Garden, (Hansard 14.7.2005) “Our ratification of the International Criminal Court was a major step forward for this Country in progress towards a better world. The Government were right to incorporate the European Convention on Human Rights in our national law. We should not ignore the obligations under which both those measures put us. Those obligations also include rights, which apply to our servicemen as well”.

I would not seek to defend any soldier that abuses his/her uniform and commits atrocities against prisoners or civilians in their care. But nothing, particular “political correctness”, should ever be allowed to undermine the forces discipline, or trust in the command relationship he relies on. Are we to see the authority of the service boards, the court martial system and summary jurisdiction by his commanding officers undermined? When a serviceman has gone through that harrowing procedure has he then to go through a civilian or International Criminal Court? Where are our rules of double jeopardy?

How high up is the chain of command? If his Commanding Officer can also be charged, (It is understood that a number of servicemen, some of field rank, have already been notified that they maybe charged), how high up the ladder do those charges go? Why not the Brigadier? Why not with the commander-in-chief in Iraq? Why not with the chief of Staff? Why not with the Minister, the Secretary of State? Does not the buck stop with the Prime Minister? Did the forces know that they might have to go before a Civilian or International Court before they were sent to a Iraq? Certainly the UK was not under attack from Iraq.

Sir Michael Rose once said, “Soldiers are not merely civilians in uniform. They form the distinctive group within our society which is required either to kill other human beings or expressly to sacrifice themselves for the nation”.

The Right to command is underwritten by statute. The Armed Forces discipline Acts state that it is an offence to disobey a lawful command. For centuries it was ordered that all commanders had disciplinary powers. If a subordinate transgressed, he or she could be dealt with at the level of command appropriate to the alleged offence.

The introduction of the Human Rights Act in 1998, and the renewed obligation for the Armed Forces to abide in particular by Article 6 of the European Convention on Human Rights, have accelerated changes in service disciplinary procedures. Courts martial for example are no longer convened by the chain of command. The use of uniformed judge advocates in Royal Navy courts martial has ended. For the human rights advocate this more correctly accords with the independent and impartial tribunal of Article 6.

Is there no “trust” left in the Commanders? Can they not be trusted to be impartial?

Are our Judges impartial? Can we the public trust them to leave all politics behind and be impartial? If we trust the judges, then surely the Government can trust the services? Are we allowing “political correctness” stand in the way of good government and common sense?

Lord Cambell of Alloway during the third reading on the Human Rights Act tried to put in an amendment in the Human Rights Bill, “we are in danger of allowing it (the Bill) “to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces [Official Report, 5/2/98; col 762] The then Lord Chancellor, Lord Irvine of Lairg had already said “Let us remember that the European Convention was drawn up after the Second World War in response to the devastation it caused, accompanied by the grossest denials of human rights. It is a convention for the protection of human rights and fundamental freedoms”. Lord Camberwell of Alloway responded, “If we had not won the war, there would not be a human rights convention. If we had not been disciplined, we would not have won the war. The discipline and conduct of our Armed Forces, according to our traditions, are near and dear to the heart of the noble Lord, Lord Gilbert, but the attitude of the Ministry of Defence is not known. It is the view of noble and gallant Lords, some of whom will no doubt speak today, that the Bill as it stands would affect many provisions of the services discipline Acts and undermine the authority of commanding officers as regards discipline, operational training and administrative matters and that there is a severe threat to the traditions of our military ethos”. At least he tried, and no one can say otherwise.

Other Countries have derogations from the ECHR, but our Government did not apply. I believe that it is time they did apply for can this Government truly say that our service men and women are not in danger of being sent to the International Criminal Court? For years our forces have dealt with their own. To allow them to go to Criminal and/or The International Criminal Court is not only a slur on the forces, it is degrading for the whole of this Country, for are we not, or perhaps I should use the past tense, did not our justice system once appear to be the envy of the whole world?

Our forces have been committed to war and now remain in Iraq on one of the most dangerous ‘peace’ operations for many years. They should have the complete backing of our Government, without question. Our serving forces should be able to look upon their officers with trust and respect, but what doubts must be in their minds when they see their officers “under suspicion”? What doubts are in their minds when they begin to understand that that having faced their military courts they might also face Civilian Criminal Courts on murder charges? Does the Government think they cannot read? They too have read about the treatment metered out to their Colonel Tim Collins, the same Tim Collins that gave then such an inspired speech as they went to war.

I will quote another inspired speech by Lord Moonie, Hansard (14.7.2005 col 1238) “the Armed Forces are under legal siege and are being pushed in a direction that will see such an order being deemed as improper or legally unsound. They are being pushed by people schooled not in operations but only in political correctness. They are being pushed to a time when they will fail in an operation because the commanding officer’s authority and his command chain has been compromised with tortuous rules not relevant to fighting and where his instinct to be daring and innovative is being buried under the threat of liabilities and hounded out by those who have no concept of what is required to fight and win”.

It really would be disastrous if servicemen lost faith in the chain of command, and there would be a danger that they might hesitate to use lethal force for fear of prosecution and their lives might be needlessly lost. Have the soldiers serving in Iraq not gone through enough? Have they to wait in fear and apprehension for another 18 months or two years before a case that should never have been brought against them, come up? The government should be backing them.

The stirring speech by Colonel Tim Collins, (as told by him in “The Mail on Sunday 8th May) whose inspiring message to his troops on the eve of battle, and I quote from that paper “made him an icon of military honour amid the lies and chaos of the Iraq war”. It was a speech that allegedly found a place on the desk of the Oval Office.

The case of Trooper Williams, which is now concluded, can be told. Trooper William’s rules of engagement were clear. He followed through, as was his duty so to do those rules of engagement. What usually happens when a soldier commits a potential breach of those rules of engagement is that the Commanding Officer investigates the matter and all relevant witnesses, investigation may be made by the Military Police, and if required by the Special Investigations branch. Decisions are made as the soldier’s guilt, or lack of it, and without doubt, they are the people best equipped through not only their training and experience (legally) to do but because of their particular knowledge operational and environment circumstances of the alleged offence or offences. Usually, and providing the soldier does not appeal, the Commanding Officer’s decision is final.

That did not turn out to be so in the case of Trooper Williams. The case was re-opened and it was referred to the Attorney General. Like any other person, Trooper Williams believed that he could not be tried twice for the same offence. He had been tried by his Commanding Officer. With no new evidence, to re-open the case undermined not only the authority of the Commanding Officer but also the whole justice system in the military and the confidence of any solder in it.

The Army Act requires the Commanding Officer to investigate-this was done-he had found that Trooper Williams had acted properly and in good faith and that should have been the end to it. Sadly it was not to be so and not only was a terrible injustice done, but the whole justice system in civilian life and military life was severely (in my opinion) was done an injustice. Trooper Williams was eventually exonerated, after spending eighteen months with a murder charge hanging over him. Who put him through that torture? For me, the answer lies with the Government and the legislation they so eagerly accept without thinking through the consequences of THEIR decisions. Compensation for all the wasted time and worry for Trooper Williams?

Lord Lloyd of Berwick said,” We had much discussion last year about constitutional questions; in particular, the rule of law. For me, the rule of law means simply that everyone, including the Government, is subject to the law. More important for the purposes of the present debate, it means also that everyone is subject to the same law”.

“In a free country there is not and cannot be one law for soldiers and another for citizens”. So, even in battle the ECHR must still be at the back of the minds of those that are fighting for survival. Not only are our forces sent into battle with poor equipment, they are undermanned and overstretched, poor service accommodation, failing standards, surely all of which under the ECHR they are entitled to expect full backing and strength in all those things? When a gun doesn’t fire, when a vehicle seizes up in conditions that it was never meant for, but it was bought because the price was right for the authorities to pay for rather than the better model-who pays the higher price then? Whose lives are lost? Certainly not those in Parliament.

I must include one point made by Lord Ramsbotham as he was a former principle personnel officer, as Adjutant-General responsible for both disciplinary and legal matters. (Again from Hansard 14.7. 2005), “One day, my opposite numbers in the Royal Navy Air Force and I were told that, in future, we would have to include industrial tribunals in our service disciplinary chains. When we asked where that direction had come from, and whether they were to come before or after Her Majesty the Queen—who was the final point of appeal—we were told that such questions were irrelevant because the Bill making such a requirement law had emanated from Brussels, and had already had its first reading in another place (House of Commons) France, Germany and other NATO allies had sought and been granted dispensation for their Armed Forces, but the United Kingdom had not.”

“On seeing the Bill, the director of Army Legal services told me that it was potentially disastrous for the Army’s operational chain of command. It allowed employees to take their employers to industrial tribunal if ordered into a place of danger. Carried to logical, or illogical, conclusion, that meant that company commanders could take their commanding officers to industrial tribunal if ordered to an attack.”

“The chain is not merely a conduit for the passage of orders, but the means by which commanders exercise their levels of responsibility downwards and their accountability upwards. It links Ministers and chiefs of staff with individual soldiers, sailors and airmen, and is used for all purposes—operational, disciplinary, personnel management, logistics and so on. It is simple, clear and visible. It has stood the twin tests of time and war”.

I make a clear point here that to place Her Majesty in a situation that she can be deemed as “irrelevant”, is sheer treachery by those that have sworn allegiance to her. I propose that power is returned to the Crown, for a case should surely be made that the use of Royal Prerogative by Her Majesty’s Ministers has been used in a derogatory fashion, being seen to bring the integrity of our forces and its standing in the world, into questionable doubt. The Ministers appear to have failed miserably by subjecting our forces to the ECHR.

The people of this Country and the Government of the day in particular owe a great debt to our forces, and I will quote from a debate in the House of Commons (14.6.2005 col 227) by Julian Brazier,

“We owe a special duty of care to those men and women who are required to take daily risks with their lives on our behalf, and to carry duties that no other job requires. The military structure has to provide them with a working environment in which there are clearly understood rules, and with an ethos that enabled men and women who regards themselves as ordinary to deliver quite extraordinary things again and again.”

Our Forces have been without doubt, the envy of the world, yet present governments have been steadily eroding the capacity of officers at all level to exercise military discipline-which is even being seen by ordinary people-to which all appear to be being sacrificed to the exceeding high altar of the European Convention on Human Rights.

It really is time the Government did their job and removed our forces from what will eventually be seen as the “evil of ECHR”, and let the Military get on with doing their job.

A soldier should, when things go wrong, as they inevitably do from time to time, be tried by the military justice system, for they fully understand the situation under which that soldier has served, and the danger he faced, especially during a highly volatile dangerous situation. (As I write this, three of our Soldiers have just recently been killed and many people have been killed in an incident where a person has blown himself up near a petrol tanker in Iraq). Dear God, will it never end?

Are the people witnessing a growing fear of legal vulnerability that will eventually inevitably jeopardise the risk taking culture that is vital to the fighting spirit and operational success of our armed forces? We have seen where a blunder of enormous proportions was made in the overturning of a commanding officer’s decision, followed by another blunder by the taking of a case to court which not only could not succeed whilst at the same time must have put an enormous strain on Trooper Williams who had to live for two years in fear of imprisonment for murder. A case of double jeopardy, unlawful under our Common Law Constitution, a Constitution that has been deliberately ignored.

On 8th March 2001 Col 360 That noble Lord, Lord Shore of Stepney stated, “My Lords, perhaps I may go back to before Sierra Leone appeared before us and to the distinction that the noble Lord, Lord Tebbit, made between serious war and relatively lightly engaged peacemaking operations. Of course there is a huge difference”.

“But there is also a third category–all out war. That, particularly to people of my generation, is something like the Second World War. I resent deeply the retrospective criminalising of Bomber Command. We fought that war to win and to free and liberate a great part of Europe and, indeed, the rest of the world. We used all the weapons available to us because it was necessary in the interests of mankind that we should win”.

“There is another category of war. It is not quite total war, but it is war with which we are all familiar. I refer to what happened in Korea, in the Gulf, in Iraq, and in many other areas. We have had to fight to win. If I was to take seriously all these new listed war crimes in Article 8.2(b) onwards–all of them, not just some of them–I would say that it would be impossible to wage war effectively in the interests of the United Nations and, indeed, in coming to the rescue of other countries threatened by aggression”.

I am happy to place here a reassurance from the House of Commons 3.4.2001(If only I could have faith and really believe it) “British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegations will be pursued by the British authorities”. If that is the case, why for heavens did they eagerly sign up to it? However, we have seen the undermining of our authority in the Forces continues, and along with it, double jeopardy, worry and FEAR continue. Our forces need the backing of Government, not kicking a man when down.

If the ECHR remains in place for the soldiers, sailors and airmen/women etc, then they should take a leaf out of the cleaner’s book in the Palace of Westminster and do as they propose to do, down tools and go on strike.