A Legal Intrusion into Defence Planning?

During the Baltic Defence College’s Higher Command Studies Course, the excellent Professor Christopher Dandeker (who will be speaking again at ICDS in late August) delivers a seminar on the relationship between the armed forces and society.

As part of this, he discusses the extent to which the armed forces can be different from wider society. The armed forces tend to be conservative, close-knit communities. Their overwhelming concern to maintain operational effectiveness often, understandably, leads them to push back against social and cultural changes. But at the same time, the armed forces recruit from and derive their support from wider society. If they do not reflect at least most of the values and beliefs of their host societies, they will have trouble attracting new members and find it more difficult to win the necessary backing of the public. So, mirroring developments in society albeit with some delay, the role of women) has grown considerably in most NATO armed forces. Gay and lesbian personnel have been also been welcomed in many armed forces; President Obama is reportedly in favour of reviewing the US military’s ‘don’t ask don’t tell’ policy.
But it is not just on social and cultural questions that the armed forces find themselves following the wider public’s lead. Those responsible for planning and equipping the armed forces also have to take respond to, or better still anticipate, what the outside world thinks. As the human security agenda evolves, armed forces have come under pressure to remove certain weapon systems from their inventories. The International Campaign to Ban Landmines is perhaps the best known effort, but cluster munitions, depleted uranium and white phosphorous, for example, have also attracted the public’s attention.
These two issues – values and equipment – came together in the UK last week, via an appeal court hearing which ruled that the principles of the Human Rights Act, which incorporates into British law key elements of the European Convention on Human Rights, also apply to British soldiers serving on operations outside the territory of the UK. Because the Act expects the government to protect the right to life of armed forces personnel, an outcome of this ruling is that the MoD will probably face compensation claims on the grounds that it has caused injury and death by providing faulty or inadequate equipment, or by not providing certain equipment – for example, body armour – at all. Unsurprisingly, the MoD has argued that the ruling will have serious implications for military operations.
While soldiers on operations will, by their very job, never be free from danger, they should still be able to rely on the duty of their state to do as much as possible to protect them. And, if individuals, or their survivors, believe that the state has failed them in some way, it is also right, in law-based societies, that they should have recourse to the law to raise their grievances. Further, it is difficult to argue that a state should have a lesser duty toward a soldier than any other employer to its employees. The same basic human rights should apply to all; in this respect, the armed forces have no need to be different from wider society.
At the same time, an MoD spokesman has rightly pointed out, in response to the ruling, that, “In the heat of battle during dynamic and fast-moving military operations on foreign territory, the UK could not secure the rights and freedoms which the Human Rights Act seeks to guarantee.” The courts acknowledge this point and argue that the ruling is not intended to insert legal opinions into the command chain, but to make certain that the state does its reasonable best to ensure the safety of its soldiers. In practical terms this means that soldiers should be trained and equipped properly to carry out the tasks we ask of them. Again, it is hard to argue against this. If it helps remind defence planners of their huge responsibility to get things right, this can be no bad thing.
But to implement this ruling fairly will not be straightforward. Defence planning is a huge and complex business. There are never enough resources to provide everything that an army needs, meaning that tough choices have to be made. Defence planning is about risk management, not risk eradication. It may be possible to construct a case that a soldier has been killed or injured because a certain piece of equipment has offered him or her less than perfect protection. But this less than perfect protection may not have resulted from negligence, but from trade-offs in the design of the equipment, and trade-offs against other priorities in the wider defence programme. An apparently flawed planning decision can only be properly assessed in the context of the entire defence programme. And the issue gets even more complicated when we consider longer term future capability requirements. General Sir Richard Dannat, Head of the British Army, recently argued that while Britain needs to retain a balanced pool of capabilities as insurance against the future, the current defence programme is unsuitable for the type of conflicts that the UK is currently engaged in and too heavily skewed towards possible future needs. But who is to say that General Dannat is right? How can we assess the reasonableness of today’s defence planning decisions against an unknown future? Quite simply, it is not possible. We can only hope that the courts are able to appreciate this complexity in their judgements on individual cases.