Clearing the fog of law : saving our armed forces from defeat by judicial diktat
Richard Ekins, Jonathan Morgan, Tom Tugendhat
London : Policy Exchange, 2015
50 p. : tabl. ; 30 cm
This report reaffirms that armed forces on the battlefield should not be above the law but that the rules governing conflict must fall under the Geneva Conventions rather than the European Convention on Human Rights (ECHR). It argues that a blanket derogation from the ECHR is essential in all future conflicts involving British military personnel. The report argues that the “judicialisation of war” has markedly increased since the introduction of the Human Rights Act in 1998. By the end of March 2015, 1,230 public law claims are expected to have been filed against the Ministry of Defence in relation to British military action in Iraq. This is in addition to a further 1,000 private law claims. The authors point to two specific areas of what they term “judicial imperialism”: the application of the ECHR to British forces deployed on combat operations in foreign countries, and the importation of civilian laws of negligence into fast moving combat situations. The report says that neither of these developments is properly supported by sound legal evidence, and that the expansion of “lawfare” hinders the ability of commanders on the ground to make immediate and potentially life or death decisions.
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