Mordaunt risks creating a culture of impunity in our armed forces

In her first major announcement since taking office, new Defence Secretary Penny Mordaunt put forward plans to opt out of the European Convention on Human Rights (ECHR) in future armed conflicts and will consult on proposals for a presumption against prosecution for offences committed by members of the armed forces more than 10 years ago. Mordaunt’s proposals both wilfully misstate the law and risk fostering a dangerous culture of impunity in our armed forces.

Mordaunt’s proposals are nothing new. Both Gavin Williamson and Michael Fallon before her made similar noises around impunity for troops and derogation from the ECHR. The politics of these policy positions are clear but they are also dangerous.

The proposal that, after ten years, soldiers should be granted immunity from prosecution is an insult to both our armed forces as well as victims. Most soldiers support the contention that if a serious criminal offence is alleged, it must be investigated. They understand that there needs to be an independent and competent investigation and that, if the allegation is not well founded, a prosecution will not follow. If it is well founded, then the courts will decide.

It is the lack of independent, competent policing of military crime that is at the heart of this issue. In Iraq, it was the military police, not sufficiently independent of the chain of command, that failed to investigate at the outset. If the allegations had been properly investigated at the start, soldiers would not now, years later, still be being asked questions about them and the victims would have had some form of justice.

On coming out of the ECHR, what Mordaunt’s proposals imply is that the ECHR hampers the armed forces from doing their jobs. This is simply not true. The ECHR sets out a clear legal framework that is adaptable to the theatre of conflict. In short, nothing in the ECHR stops soldiers from being soldiers. Yet, soldier or not, nobody is above the law. Where there is credible evidence of serious human rights abuses or crimes, these should be investigated and, where appropriate, prosecuted.

Opting out of – or derogating from – the ECHR is permissible in limited circumstances, where there is war or another public emergency threatening the life of the nation. However it is not a free for all. Firstly, the measures adopted by a derogating state must be limited to what is ‘strictly required’ by the situation. Secondly, not all rights under the ECHR can be derogated from. A state cannot derogate from the right to life (except for deaths resulting from lawful acts of war) and torture is never permissible. Finally, it is unprecedented for a state to try and derogate prospectively in all future armed conflicts and it is not clear whether derogating where the conflict is taking place thousands of miles from the UK would be lawful.

Mordaunt’s proposal is therefore unlikely to solve the problem it purports to tackle – it will not prevent the proper investigation of credible allegations of abuse during wartime. However what it will do is to undermine the UK’s credibility, limit accountability and threaten fundamental rights.

Much of the Government’s rhetoric on this issue is anchored in the myth of vexatious litigation propped up by human rights law. Despite hyperbole from the Ministry of Defence and others, judgments arising out of the wars in Iraq and Afghanistan are measured, limited, reasonable and essentially amount to the propositions: don’t kill unless it’s a lawful act of war, don’t torture and ill-treat civilians or combatants under your control – ever – and enable some minimum procedural safeguards to ensure people are not held in indefinite extra-judicial detention.

Far from creating uncertainty, the Convention clarifies and structures the military’s use of lethal force and its powers of detention in ways the armed forces themselves ought to recognise is to their benefit. Attacks on the ECHR and deliberate misrepresentations as to what our courts have actually said are not made in the interests of soldiers or their families but rather are in the interests only of the powers that be.

Our human rights laws serve protect us all – civilian or solider, on or off the battlefield. It’s time the Government acknowledged that.