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Armed Forces: Chain of Command

My Lords, I am also grateful to the noble Lord, Lord Campbell of Alloway, for the debate, raising as it does the important issues of authority of the military chain of command and the impact that civil law, much of which emanates from Europe and the International Court at The Hague, may have on the way in which soldiers perform their duty and take risks on the battlefield. There is considerable disquiet among some members of the forces and concern that, even when doing their perceived duty in an operational situation, they may become vulnerable to prosecution and will not always be backed up higher up the chain of command, where it may be claimed that the matter has been taken out of their hands. Without assurances of mutual confidence and responsibility, you cannot run effective fighting forces with the commitment, morale and readiness to take the risks needed to defeat a ruthless and determined enemy. It is not just the existence of the new legal code—perhaps now weighted as much, if not more, on human rights as on self-defence—that is potentially not conducive to the mutual concern and responsibility of seniors for juniors on which a proper military system operates; it is also the way in which the law can be interpreted by investigators—military and civil; legal advisers, who are often far removed from the scene of the action; and even in the somewhat highly charged political climate of today and the International Criminal Court Act, by the chain of command itself, with superiors becoming as much concerned with avoiding responsibility and consequent prosecution as they are with justice for the individual under investigation. That was highlighted, as noble Lords have heard, in the recent, lamentable case of Trooper Williams of the Royal Tank Regiment. The Ministry of Defence, influenced by contradictory legal advice far removed from the battlefield; by those extraneous features quoted exactly by the noble Lord, Lord Campbell of Alloway; and by the power of pressure groups actively encouraged, through the head of the Army Legal Services, the Attorney-General to intervene and—needlessly, as it turned out—to arraign the soldier on a charge of murder at the Old Bailey. That was after the soldier had already been properly investigated by the commanding officer who, on proper legal advice and in touch with the situation and circumstances, had dismissed any case against Williams on the ground that there was no case to answer. The case at the Old Bailey subsequently collapsed when, at the eleventh hour, the Director of Public Prosecutions, realising that the charges would not stick, did not offer any evidence against the soldier. That was only after the soldier and his unit had gone through the most appalling anguish and ripples of concern had gone throughout the Army. The soldier and his regiment behaved in an exemplary manner. I doubt whether the same could be said of the Ministry of Defence. I am not talking about ill treatment or abuse by soldiers when handling prisoners of war outside an operational environment. That is covered by the Geneva Convention on which, in a situation as legally and operationally confused as Iraq, soldiers should be properly briefed. The responsibility for that briefing lies as much with those at the top who sent the soldiers into such a confusing situation as it does with some convenient scapegoat in the chain of command. That is a different issue. I am talking particularly about ongoing operations in Iraq, in which there is no distinction between war zones and civilian areas and little distinction between terrorists and law-abiding civilians. In those circumstances, if there is evidence of hostile elements and hostile intent in the area, the soldier often has to decide instantly whether, to safeguard his life and the lives of his comrades, he needs to open fire or can safely show more restraint. That judgment can only be taken on the spot by soldiers relying on their professional judgment and sometimes on the innate decency of the British soldier. It should only be reviewed, justified or condemned, if further investigation becomes necessary, by those familiar with similar situations and aware of the environment and the pressures prevailing at the time and able to make a judgment on whether the soldier has acted in good faith and therefore deserves the benefit of any doubt that there may be. Rules of engagement and yellow cards help, but the troubling thing about the case of Trooper Williams, who had shot an Iraqi who was clearly connected with terrorism and who had ignored a warning shot, was that commanding officer had dismissed the case just because he was satisfied that the rules of engagement had been met. That still did not stop interference with the chain of command at a level remote from the action and by those influenced by political pressures and adverse publicity. There are a great many cases pending; it is to be hoped that the Williams fiasco will not be repeated and that soldiers doing their duty in good faith will be given the proper support that they deserve. If investigations are needed, they should be dealt with either summarily or by court martial by people who understand the situation on the ground and pressures of the battle situation. I am not suggesting that the military should ever consider itself above the law. I ask only that, in an operational situation of limited war or counter-insurgency, the law should be interpreted not in some sort of legal vacuum but with close regard to the realities on the ground. The new international legal code was always likely to impinge on military duty, which is why, in your Lordships’ House and in another place, so many of us pleaded for some partial opt-out, as obtained by the Americans and the French. That was flatly rejected by the Government, and we are now starting to see the consequences of that rejection.