I was a senior British army lawyer. This is the truth about ‘lawfare’

The last Conservative government passed the Legacy Act, which shut down many routes to justice for victims of the Troubles in Northern Ireland.

Inquests were stopped, even when British soldiers fired the fatal shots.

Labour’s manifesto pledged to pass a Troubles Bill which would reverse some of the worst excesses of the Legacy Act .

Already, this has sparked a backlash. Conservative MP and former SAS soldier David Davis wants action to protect troops who “no longer fear only the enemy in front of them but the lawyer behind them.”

However, there are other voices in this debate which have not been heard, including members of the armed forces who have served in Northern Ireland and take a different view.

I am one of them.

Earlier this month, I spoke at an event in Parliament organised by Amnesty International and the Centre for Military Justice.

Politicians we met expressed surprise at hearing military voices challenge what has too often been presented as a unanimous chorus of calls for impunity provisions to be reintroduced into the Troubles Bill.

The choreographed narrative has been accompanied by a marked failure of analysis. Many of the allegations simply do not stack up.

Indeed, this might be because the so-called “objections” to the Troubles Bill have very little to do with Northern Ireland and more a desire to escape the European Convention on Human Rights (ECHR), not least in the light of recent revelations regarding UK Special Forces in Afghanistan .

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Floodgates

First and foremost, there are a number of popular myths in this debate about the Troubles Bill which seem to have been accepted as “facts”, but which are never challenged.

The first of these is that troops will be subjected to “vexatious” litigation if this bill is passed into law. We have been here before.

The word found its way into the Conservative Party manifesto 2019 and then into the supposed rationale for the Overseas Operations Bill 2020.

However, this allegation was explored by the Joint Committee on Human Rights at the time who concluded that they were unaware of any such cases against UK forces and called upon ministers not to use “politicised and inaccurate language”.

Nevertheless, the term “vexatious” has returned once again.

As well as the myth of “vexatious” litigation, there is also the myth of “opening the floodgates”.

However, as Professor Kieron McEvoy recently said in the Irish Times “between 2012 and 2024, there were 25 decisions to prosecute conflict-related offences in Northern Ireland, six of which were against soldiers. Only one ex-soldier was convicted of manslaughter… actual data often appears to be beside the point”.

The ECHR has been part of our domestic law since 1997 but has not “opened the flood gates” so why should it now?

Immune

As to the allegation that the IRA have somehow obtained “immunity from prosecution”, Lady Justice Hallett has already pointed out that the so-called “comfort letters” do not amount to “a get out of jail free card”.

There were no amnesties .

The Conservative Government’s 2023 Legacy Act sought to create an immunity scheme for those who might be prosecuted for alleged offences committed during the Troubles. It would apply to service personnel (as well as terrorists).

A similar scheme was devised for the Overseas Operations Bill 2020, that would have effectively placed service personnel accused of war crimes outside the reach of the law in certain circumstances, but there was very strong military push back at the time.

General Sir Nick Carter stated that UK Armed Forces should “uphold the rule of law in the way that it is presented to everyone else”. Lord Guthrie argued that making exceptions for troops ran the risk that their crimes might go unpunished.

There was also general agreement that carving out exemptions for UK forces did nothing to incentivise good conduct on the battlefield going forward.

So why the objections to the UK government’s current Troubles Bill?

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Afghanistan inquiry

Perhaps the answer lies elsewhere.

As a result of exposure by Panorama, the SAS now stand accused of committing war crimes in Afghanistan and effecting a cover up.

None of those allegations would have come to light without the ECHR, and in particular Article 2, which requires an independent investigation when there are allegations of unlawful killing by the state.

How convenient it would be for the SAS, and other state actors, if the UK were to leave the ECHR entirely so they no longer had to face calls for independent investigations.

And what better way to disguise the motive than with populist assertions about elderly veterans in Northern Ireland and then laying the blame at the feet of the ECHR?

The great irony is that our special forces or other state actors would not be worried about legacy issues from Afghanistan or indeed Northern Ireland if human rights norms had been applied rigorously at the time.

Military operations would have been conducted in accordance with the rule of law and there would have been no cover up, because the ECHR would have prevented it.

There would have been a proper independent inquiry at the time – the guilty would have been dealt with, the innocent exonerated.

This is precisely why the application of the Human Rights Act is so important – it will stop “legacy” issues arising now and in the future.

The recent events in the Middle East graphically illustrate how the world can spiral out of control when the rules-based order is egregiously ignored.

This is a compelling argument in itself for the strict adherence to the rule of law in military operations.

Now is manifestly the time for the UK government to rigorously uphold the rule of law, including human rights, and not to abandon it like some of our “allies” have chosen to do.

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