"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Sunday, 23 June 2013

Smith and others v Ministry of Defence [2013] UKSC 41: the fog of war descends on the courtroom

The military theorist von Clausewitz once said that no plan survives contact with the enemy.  Real life confirms it: rare it is that wars ever go to plan. Even in the most successful engagements there have almost always been needless casualties caused by equipment failure, human error or a combination thereof.  In both Gulf Wars, for example, despite the overwhelming superiority of coalition forces, the very high level of technology at their disposal, and the swift conclusion of the initial military operations with extraordinarily low allied casualties, there were still friendly fire incidents where British and American soldiers were killed by their own side due to mistaken identity.

Recognising the inevitable consequences of the “fog of war” and the undesirability of civilian judges trying to sift through the evidence long after the event, the common law has developed the doctrine of “combat immunity”, under which anything that happens during battle is non-justiciable (see for example Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais).
In Mulcahy v Ministry of Defence [1996] QB 732 the Court of Appeal preferred to see combat immunity not so much as an entirely separate principle as the result of a general conclusion that it was not fair, just or reasonable to regard the Crown or its martial emanations as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war, but we can leave aside such doctrinal niceties for now.

The families of victims of one friendly fire incident in the 2003 Iraq war have brought proceedings against the Ministry of Defence (MOD).  The MOD applied to strike out the claims on the ground of combat immunity.  The Supreme Court by a majority decision has recently ruled against the MOD on that preliminary issue and allowed the claims to proceed to trial (Smith and others v Ministry of Defence [2013] UKSC 41).  There were claims arising out of different incidents, but we will confine ourselves here to what were called the “Challenger claims”.  In my view the dissenting judgment of Lord Mance was compelling.  The decision of the majority to allow the claims to proceed to trial is unsupportable in principle and may have severe practical implications. 

The Challenger claims involved one British Challenger II tank firing on another, with fatal consequences.  The claimants alleged that if the tanks had been properly equipped with existing technology and equipment, the incident would have been prevented.

The majority of the Supreme Court accepted that combat immunity was not limited to the presence of the enemy or the occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack, including the planning and preparation for the operations in which the armed forces might come under attack or meet armed resistance. Further, there was no duty, in battle conditions, to maintain a safe system of work.

However, the doctrine should be narrowly construed.  It extended to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury had been sustained.  But it did not extend to the planning and preparation, in general, for possible unidentified further operations (see Lord Hope at [88], [92] and [98] of the judgment).

With respect to the Challenger claims, at the stage when men were being trained, whether pre-deployment or in theatre, or decisions were being made about the fitting of equipment to tanks or other fighting vehicles, there was time to think things through, to plan and to exercise judgment. Those activities were sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that was imposed had regard to the nature of those activities and to their circumstances.

Recognising the dangerous implications, Lord Hope cautioned (at [100]) that:

it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

And yet by allowing the case to proceed to trial, Lord Hope with the greatest of respect has not taken account of that paramount importance. 

The decision of the majority relies on the following argument. A casualty might occur due to an equipment problem foreseeable and entirely within the power of the MOD to remedy before long before the war had started or even looked like starting. If so, why should the MOD hide behind combat immunity for decisions taken thousands of miles away and many months before hostilities?  

The answer is set out in cutting fashion by Lord Mance. The supply of technology and equipment, training for active services, and decisions taken on the ground during an action are all inevitably inter-linked.  The claimants had been careful not to make any criticism of the commanders on the ground.  But the attribution of responsibility could not depend on how the claimant framed his case.  Lord Hope recognised the problem but considered that all such circumstances had to be evaluated with a view to striking a balance between competing considerations.  Lord Mance concluded the opposite – that all such circumstances were inter-related and essentially non-justiciable.

At para [131] he stated:

The claimants’ case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court - maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment. (…) Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect. Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities). There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision- making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed.

By way of example he cited a number of well-known incidents – the defeat at Isandlwana, the failure of the War Office to appreciate Lancelot de Mole’s idea for the tank in 1912 and the fall of Singapore.  The defeats against the Zulus and the Japanese involved a number of tactical, planning and equipment blunders, while it is anyone’s guess what might have happened in the trenches had de Mole’s suggestion been taken up immediately upon it being made. (Or, one might add, if Whittle's invention had been acted on in the early 1930s.)  But a courtroom is not the place to try and disentangle all of the competing factors and decide what would or could or should have happened.

The number of further examples that could be added is limited only by one’s imagination. HMS Hood was known to be vulnerable to plunging shellfire due to her inadequate deck armament. That knowledge compelled Admiral Holland to give away his superior position at the start of the Battle of Denmark Strait, and five minutes later the Hood was destroyed. Should he have refused to leave port? 

Should pilots have refused to fly the Fairy Swordfish, which was known to be hopelessly obsolete in 1939 (but which went on to succeed at Taranto and against the Bismark, but was ruthlessly cut down in the Channel Dash)?  

Were casualties incurred during the Falklands because the British boots were unfit for purpose (conceivably, ground could have been covered more quickly otherwise and the troops would have been in better condition when closing with the enemy)?  

Should all the politicians of the past two decades be sued because, despite a defence budget as large as the French, the latter manage to develop their own jet (cf the Eurofighter conglomerate fiasco), build their own nuclear powered aircraft carrier (cf the QE class endless delays and cost overruns) and field many more troops? 

Why was no-one court martialled over the Royal Marine hostage fiasco in Iran a few years ago (the commander of the boarding party, the ship from which they deployed, and the commander of the fleet in the region would have been good places to start)?

As Adam Wagner pointed out here, it calls to mind the old rhyme

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

The answer is that issues arising from tactical decisions are for military debriefing sessions and, where appropriate, courts martial.  Procurement issues are for the political process.  Neither is suitable for the civilian courtrooms.  


  1. Respectfully, I disagree. This is something I wrote to some of my colleagues on Wednesday night. I would appreciate your thoughts.

    "** Smith & Ors - "The End Of The World As We Know It!!!" - or merely the MOD's failure to exempt itself from the rule of law? **

    Wading through the hyperbole and misinformation, there are two very distinct versions of today's Supreme Court judgment in Smith: the actual judgment (for which, see the end of this post), and the version that Hammond and the MOD are peddling. The individual cases against the MOD by wounded soldiers and grieving families have not been proven, and may yet not be proven. What today's judgment in Smith & Ors is about, is the MOD's attempt to render the entire issue non-justiciable: i.e. to prevent wounded soldiers, and grieving families from even getting to examine the department's decisions, by effectively declaring them "off limits to the courts".

    Contrary to Hammond's assertions, *only* if the cases against the MOD are each proven following individual trials on their discrete merits, will claims succeed. What the MOD had tried to do in Smith so far, at the High Court, at the Court of Appeal, and at the Supreme Court, was prevent anyone else but the MOD from examining the merits of its decisions, i.e. to effectively exempt itself from the rule of law.

    We have been here before: in 1990, the Army was loudly and aggressively defending its right to a) sack pregnant servicewomen, b) block ethnic minorities from employment tribunals, and c) explicitly interrogate gay personnel before terminating their careers. In the nine years that followed, all three unlawful areas of Army behaviour were stopped, and senior Army officers brought to heel. After that was Deepcut, then Baha Mousa, etc. - at every stage the Army has shrieked petulantly, "We have the *right* to be different - and only *we* get to decide what rules should apply to us!". No, as the armed forces in a constitutional democracy we do not have the *right* to anything, we have permissions granted to us by 'the crown in parliament' - i.e. the law. At its most fundamental, that includes our right to exist, from the Mutiny Act 1689, through to the Army Acts 1955+, to the present day Armed Forces Acts. We certainly do not, I suggest, have that right to determine what laws apply to us - and furthermore we *should* not have that right - that is why we have a separate executive, legislature and judiciary: a balance of powers. The MOD should not be permitted to exempt itself from the rule of law. That is what it was trying to do here, and it failed.

  2. As to the merits of the cases themselves - they have not been heard yet, but to just look at Snatch landrovers, there are some interesting links worth reading here: http://en.wikipedia.org/wiki/Snatch_Land_Rover#Criticism_of_vehicle_use, and I know from friends and relatives who had the misfortune to serve in Iraq and Afghanistan and be compelled to use snatch landrovers that they were widely regarded as deathtraps, hence the 'mobile coffin' moniker. Some of the points raised by those who argue that we can not have "perfect vehicles" are valid; echoes of the Donald Rumsfeld, 'you go to war with the Army you have, not the Army you'd like'. I would argue, however, that there is a continuum, at one end of which is cocooning soldiers in cotton wool, at the other end of which is capriciously abandoning them to be slaughtered with vehicles and equipment that are palpably unsuited for the job, and which MOD could replace with relative ease should they choose to invest the funds (i.e. off-the-shelf purchases). The former is too 'soft', the latter looks uncomfortably (morally certainly; legally, possibly) like gross negligence manslaughter. I remember sitting in a Central Legal Services meeting while I was at MOD some years ago, and the topic of snatch land rovers came up: civil servants were *utterly* disinterested in soldiers' deaths - their sole focus was on the department's reputation. A more self-serving and cynical bunch of time-servers and ladder-climbers I had never before met. There is an argument - the detail of which will no doubt come out in due course - that the MOD knew that Snatch land rovers were lethal, that the FCO had banned civil servants from travelling in them because it too knew that they were lethal, but that the MOD was desperate not to admit what every one else already knew in Iraq and Afghanistan: that we had bitten off more than we could chew, and that the MOD lacked the capacity and the funds to achieve anything worthwhile. As a consequence, in the later years on TELIC the Army were merely saving face for politicians who lacked the integrity to admit that they had made mistakes, and that the Army should be brought home. Part of that cynical realpolitik - goes this line of thinking - was to spend the minimum amount of money possible, regardless of the cost in lives. Only media pressure forced the MOD to buy modern vehicles.

    At its essence, therefore, this case was not about the specific merits of individual injuries or deaths - it went to the heart of the concept of the extent to which MOD is, and ought to be, subject to the rule of law. To define that term, I turn to the late Lord Bingham, via the Guardian: (http://www.guardian.co.uk/law/2011/sep/07/rule-of-law-tom-bingham)

  3. 'Until Bingham spoke, "the rule of law" meant pretty much what Dicey had said it meant in 1885. Bingham's definition of that much-used term is now entirely authoritative and will probably remain so for the next 120 years or more. In summary, it is "that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts." There's a lot packed into that sentence and it's worth reading it again until you grasp what it means. Both in the lecture and more extensively in the book, Bingham expands his definition into eight sub-rules or principles.'

    1. The law must be accessible and so far as possible intelligible, clear and predictable.
    2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
    3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
    4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably
    5. The law must afford adequate protection of fundamental human rights.
    6. [The state must provide a way of] resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
    7. Adjudicative procedures provided by the state should be fair.
    8. The rule of law requires compliance by the state with its obligations in international law as in national law.

    Today's case was about the first part of Lord Bingham's key definition: "All...authorities within the state...should be bound by...the...law." The MOD did not want to be bound by the law, it fought not to be bound by the law, and today it failed.

  4. The key concepts within Lord Bingham's which arguably applied today were:

    "Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion." The MOD sought to perpetuate a situation in which its decisions were regarded as beyond challenge, and in which it could - without fetter - exercise its discretion. Today, the courts said 'no'.

    "The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation." Self-explanatory - the MOD did not want the laws of the land to apply to it.

    "Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably." As I have highlighted repeatedly, it could be that all three cases go on to fail in the High Court, in which case, so be it: justice will have been done, and been seen to have been done. Ministers should be open to challenge, however, as to whether they have acted unreasonably.

    "The law must afford adequate protection of fundamental human rights." See earlier remarks about a 'continuum from cotton-wool to capriciousness'. The MOD should not have exclusive control of its domain* - operationally, as in many areas, the result will be the same as it is with untrammelled power in any sphere: power is exercised improperly. (* With the very narrow exception of combat immunity: no court has ever suggested that 2Lt Smith will be prosecuted for making the wrong decision to go 'two up with bags of smoke').

    Further information - which I would respectfully *urge* people to read before commenting:

    - There is a case summary from the the excellent UK Human Rights Blog here: http://ukhumanrightsblog.com/2013/06/19/supreme-court-gives-the-go-ahead-for-negligence-claims-for-british-servicemen-deaths-in-iraq/

    - The full judgment is here: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf

    - The press summary is here: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0249_PressSummary.pdf

    In conclusion, personally I am glad that the MOD's decisions are subject to external review: in a healthy democracy each and every part of it is subject to checks and balances, because no individual and no organisation is infallible. I would argue that today's decision was merely a vindication of that simple fact."

  5. Part 2 - Comments in "The Times" (online) on Thursday

    Following yesterday's Supreme Court defeat for the MOD, there were some excellent comments on this issue by a former serving officer named "Alex", commenting at The Times:

    "...perhaps you don't think that ministers and senior commanders should be held responsible for negligence (which is different from making a genuine mistake), should they be culpable of it. Of course they should - it helps ensure that their actions are not negligent. [You argue] as if you believe that soldiers should not be protected by the law and should not operate in the knowledge that their superiors are not culpable for negligence, just because they knew the risks involved. Firstly, I doubt that many 17 year old recruits understand the complexities of high intensity conflict or have any idea of the risks inherent in COIN operations and secondly, it is because of the nature of conflict that commanders and politicians should be held accountable; it reduces a cavalier approach to decision making and forces careful risk appreciation.

    Sure, commanders make mistakes in combat. Resourcing errors prior to operations should not be made - going to war on a shoestring and making do with obsolete, limited or insufficient equipment is simply no longer acceptable, particularly if the conflict is of our choosing. Anecdotally, in my limited field of staffing some resources prior to the deployment into Afghanistan I was appalled at the lack of strategic planning, intelligence, contingency planning and understanding that there was before the kinetic battles began in earnest. That was, I suspect, part of the reason that the Taliban out-manoeuvered us operationally in the first phases of the war.

    Take, for example, the reports of inadequate flying hours available to Battle Groups and Brigades for them to be able to conduct dynamic, fast operations with adequate surprise, manoeuvrability and cover. Or the lack of NVGs for troops operating in Infantry roles, resulting in them fighting blind at night.

  6. The defeat of the enemy (physically or by destroying his will to fight/win) at minimal loss to our own troops is a key function of military leadership. The abysmal resourcing of operations and the failure to provide adequate protection, mobility or firepower fundamentally undermines the physical component of warfare and, arguably, the moral component. It stifles manoeuvre and the ability to strike and it prevents commanders taking risk effectively; in short, the failure to protect soldiers on the battlefield prevents the military conducting effective combat operations.

    This failure to resource effectively in the last two major conflicts is well-documented and commented on by numerous sources - if litigation is the lever to force politicians, civil servants and generals to ensure that the frontline soldier is launched into battle, with the best available equipment then so be it. It should not have come to it, but it has and if it protects a soldier's life and ensures that future conflicts are better managed and resourced then it is worth supporting.

    As for Snatch vehicles - to send men into IED environments with such pitiful protection is scandalous. There was a good reason why they were not used in South Armagh - they did not offer the protection or manoeuvrability to counter the threat of PIRA's IEDs - Iraq posed an even bigger threat than S Armagh, yet the experience of NI was ignored. And young men died as a result.

    Afghanistan and Iraq were interventions of choice, poorly planned, badly resourced and guided by the hubris of generals and poiticos who failed to appreciate the complexity of operating in those countries, failed to learn the lessons of history and singularly failed to maintain the will to win. A catastrophic failure to understand the geo-political situation in the ME in 2003, coupled with an inability to identify and articulate clear, achievable objectives and a failure to capitalise on early military successes against the Taliban led to a protracted, ferocious counter-insurgency that, on a tactical level, was won by ISAF, but on a strategic level will be won by the Taliban.

    Let the next intervention be properly planned, resourced and led by men and women with the stomach for the fight and the drive to see it through. Fewer causalities sees less erosion of the will to win by politicos and the home population, giving the military more freedom of action to operate in a dynamic, if necessary aggressive, manner that sees less collateral damage and a more sympathetic reaction for the civilian population. Let us hope future decision makers understand that properly equipped soldiers can take bigger risks and defeat the enemy physically and morally in a more efficient manner. Simply accepting poor protection, manoeuvrability and firepower and expecting commanders to be severely constrained by that is a path to tactical, operational and strategic failure."


  7. PS Can you extend your maximum word limit, please. If you think stuff is rubbish, you don't have to publish it anyway, but if you're content with it, this would permit posting detailed responses in few than 6 chunks! Cheers :)

  8. Thanks for the detailed response. Re word limit - it comes from the default settings on blogspot, I will try and change it.

  9. I will try and respond to the substantive points later today. In the meantime, see the letter I had in the Times recently on Afghanistan and Iraq (reproduced on this site) for my views on the competence of those operations. It does not follow that the civilian courts are the best place to address those wrongs.

  10. OK, cheers. I'm happy to email you, if you have an address. I can't post mine openly, for obvious reasons.

  11. Many thanks once again for a cogent and detailed response. Here are a few thoughts, and I will try to post again later this week to try and do justice to everything you have set out.

    The key quote you have made is, I respectfully suggest, this: "The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation."

    This is about applying the law, and determining which objective differences apply to the armed forces. No-one involved in the case disagreed that there _are_ certain objective differences - hence the agreement that decisions taken in the heat of battle could not be investigated by a court. Returning to the neutral example of the Hood, that would mean that if Admiral Holland had survived, while a military tribunal could have removed him from command for the manoeuvre, he could not have been sued for negligence. (As it happens, I think the weight of opinion nowadays supports his decision to sacrifice positional advantage to try and close the distance, but let us not get distracted.)

    Then there is the question of procurement. There have been procurement fiascos for as long as there has been procurement. The generals and admirals have long been obsessed with vanity toys - hugely expensive shiny pieces of kit - when what has been needed since the end of the Cold War has been helicopters, transport planes, unmanned drones and boots on the ground, together with ships that can deploy lots of them. Why did no-one until the USAF (and very late in the day) think of bolting on some weapons and other kit to turboprop planes for Afghanistan? Being faster and higher flying, they are much less vulnerable than attack helicopters. They can stay in the air for many hours longer at a time. Compared with drones they have the Mk 1 human eyeball and also need not much more than a couple of blokes with a spanner to keep them in the air (though the disadvantage of a pilot on board if they do get shot down). A few dozen of them could have given those on the ground in Afghanistan far, far more practical air cover than the enormously expensive fast jets (of which the best for that purpose was the Harrier, which the MOD got rid of anyway.) But one struggles to imagine the entire procurement process being subjected to judicial review - it is too large a subject for a single judge (or even a panel) - and is essentially a matter of political, economic and military consideration (regrettably, usually in that order), not legal. There is no equivalent elsewhere - one could not sue the government over NHS hospital building decisions (other than on very specific grounds eg breach of planning policy), for example, or over how many schools it planned to build and where.

    If that is accepted, then one cannot sue the MOD or anyone else over procurement policy (however much it would be tempting).

    Given that we cannot sue for operational decisions, or for general procurement decisions, what does that leave? Lord Hope and the rest of the majority thought it left instances like the Challenger claims, if and only if the claimants could establish that the deaths related solely to a specific equipment error, and not where the deaths were a combination of operational and equipment errors.

    The first objection is that that is just not a realistic exercise, for the reasons Mance sets out and which I have added to here and above.

    The second is that it will leave commanders in an impossible position when trying to factor in what might be negligent and what might not be, in any particular operation.

  12. There are many problems with the legal system presently letting off those of the establishment who should frankly be hung, drawn and quartered. How on earth have all those associated with the Mid-Staffordshire debacle kept their pensions and public positions? Their argument seems to be that they were not concerned with detail, or that their roles were somehow fashioned in a way that they can't be held responsible for anything. To which the obvious replies are (i) what were they paid for, and (ii) relatedly, the Primo Levi question: if not now, when? In other words, what could have happened on their watch to have compelled their resignation? Why was Mid-Staffordshire not enough?

    Then there was the blatant refusal of the establishment in the 1970s to accept even the possibility of police corruption (Denning was an offender here, though by no means the only one) which led to the creation of the Criminal Cases Review Commission.

    Next we have the bankers. Some have suggested that by signing accounts each year the chief executives were either being dishonest or incompetent to the point of negligence, and should be sued accordingly. Either way, it seems to me the least the state could have done would have been to slap some conditions on the bail-out, primarily a demand that the boards responsible should be given the same pay-off as they would have done if the banks had gone bankrupt like any other business large or small (nothing, in other words).

    Or take the BBC, which has just chucked away £100m on a failed IT project, without anyone getting so much as a disciplinary scratch so far as I can tell. Much as with the Saville disaster.

    So believe me, I am no fan of establishment immunity. Frank Lewidge's Losing Small Wars is an excellent polemic against the current army setup, even if he goes too far at various points. But let us not overrate litigation. It is a useful and effective means of resolving some problems. I remain far from convinced it is the right way of dealing with the armed forces, for the reasons set out above. Which is not to say that the courts have no role - ultimate supervision of the courts martial process, for example, seems logical and (given the dessicated state the courts martial process got itself into over the years) necessary.

    BTW my linked in profile is on the side, or my twitter account is above (@alwayerwrites) - feel free to send a direct message.

  13. Sorry for the delayed reply - work and family issues arose simultaneously, wiping out much of this week.

    I tend to agree with your arguments, if not necessarily your conclusion: the two great behemoths of non-judiciability are (1) politics/policy issues, and (2) combat immunity. I'm not convinced that they always act to block examination of MOD decisions, though: there are areas which might legitimately be litigated.

    I'm not taking a view on the merits of these cases (Snatch and Challenger), not least because I've not heard the arguments and evidence presented in court. But, therein lies the point on which I respectfully disagree: I think that the arguments and evidence *should* be presented in court. If the claimants fail, they justice has been done, and been seen to be done.

    I think that we both understand each other's arguments, even if we don't agree. I confess that I am a prisoner of my experiences, and perhaps I am biased by the following factors:

    - Age. I would probably be more conservative were I either a thrusting subaltern, or an ageing general. The former tend to regard external interference with their chosen career as an threatening to spoil their fun; the latter regard interference as sacrilege.

    - Mindset - Similar to the above, not necessarily entirely aligned, I suggest that there is a continuum of people, at one end of which are 'invincible youth' (so they think), at the other end of which are senior officers within grasp of their pension who are, by definition, a self-selecting tiny minority cloned in their own image. The Army's attrition rates would suggest that most officers who don't entirely 'buy in' to the mindset will leave by their early 30's.

    - Charge of light brigade attitude necessary? Do we need our officers and soldiers to evince a Tennyson-esque attitude to life and death, given the demonstrably fickle manner in which governments of both colours have seen fit to employ them over the last decade?...

    "...in the valley of Death
    Rode the six hundred. …
    Cannon to right of them,
    Cannon to left of them,
    Cannon in front of them
    Volley'd and thunder'd; ...
    Not tho' the soldier knew
    Someone had blunder'd:
    Theirs not to make reply,
    Theirs not to reason why,
    Theirs but to do and die..."


  14. Strategic arrogance. To what extent are my attitudes, and others who support the UKSC decision in Smith & Ors, reflective of an deeply-felt cynicism having found ourselves in (1) Iraq in late 2003 'somewhat surprised' to find no WMDs, no links to AQ, rapidly-diminishing Iraqi consent, and an increasingly lethal insurgency?, and (2) Afghanistan in 2006, with 16 Air Asslt Bde isolated in 'platoon houses', being defeated in detail, while Brig Ed Butler sent desperate ASSESSREPS back to Downing Street and PJHQ warnings how appallingly over matched the battlegroups were. All this in the face of warnings prior to deploying (see http://j.mp/herrickinfo for more information). 37 soldiers were killed between Jun-Dec 06 (http://www.bbc.co.uk/news/uk-10629358). Bde HQ staff officers, when asked why we were ignoring the basic principles of defence, and force ratio, were unable to hide their own anger at the deathtrap in to which they had been ordered to send their soldiers.

    Legality. Iraq - Contra Goldsmith's dissembling, UNSCR 1441 didn't revive anything. TELIC was an illegal act of aggression. HERRICK followed as a face-saving manoeuvre to mitigate TELIC, but ended up almost three times worse (179 v 444 and counting) .

    National survival/discretionary operations? Would we feel differently if these were wars of national survival, as opposed to discretionary operations engaged in - and resourced - at the whims and fancies of politicians seeking to play the great statesman, but unwilling to face the concomitant bill?

    Finally, I though that this analysis, published today, is very good: http://www.thinkdefence.co.uk/2013/06/human-rights-and-tommy-atkins/. Essentially, it argues that:

    "...First of all it should be clearly understood that the ruling is not a judgement on the merits of the claim but whether the claim can be heard in court, it provides permission to proceed with action, nothing more, nothing less. Whether the MoD is guilty of a breach under the Human Rights Act is yet to be determined, the claimants will have their day in court, and so will the MoD. Contrary to some opinions, this decision will not be opening any floodgates any time soon... I find the rush to trivialise and belittle the claims rather sinister because despite all the associated bluster about having lawyers second guess decisions made in the heat of combat the specific cases are about negligence of the MoD, not individual commanders involved in combat..."

    PS I have just 'Followed' you on Twitter, but am unable to message you unless you reciprocate, apparently. Similar constraints apply to LinkedIn! If you work out a way of passing me an email address, I'll forward you some more contemporary ECHR/MOD information that may be relevant later this summer.

  15. Thanks very much for your comments and sorry it has taken so long to come back. I think we agree more than we disagree. My perspective is that I don't think civilian courts and lawyers are best place to rake over combat decisions. And I think we agree that the odd procurement or deployment issue is secondary behind the much greater errors of getting into Iraq and Afghanistan in the first place. I don't like the idea of all the Blimps getting away scott free (unless someone thinks they might get criticised by Chilcott, fat chance) while attention goes elsewhere. Even if the claimants in Smith succeed, I doubt the MOD will get the fundamental working over that it requires.

    You can email me at james_rw(AT)btinternet.com(no spam) but without the underscore between s and r - I put that in to fool any spam machine.