Human rights law means two-tier justice for British soldiers
Getting our priorities straight
In 1999, a car carrying eight passengers approached a British army checkpoint in Pristina, Kosovo. Two of the Kosovars were sat on the roof and firing weapons into the air in violation of a ceasefire agreement. Three corporals from 1st Btn, the Parachute Regiment ordered them to stop the car and drop the guns, but after refusing and allegedly levelling an AK-47 at the soldiers, the Paras opened fire, killing two and wounding another two. One of the two wounded men, Mohamet Bici, was immediately flown to the United Kingdom with his cousin, Skender Bici, to receive healthcare treatment. Upon recovery, the cousins claimed asylum and received legal aid to sue the Ministry of Defence for £2.4 million.
This incident had all the ingredients necessary for tabloid fury: two asylum seekers had just been given NHS care and then taxpayer’s money to sue ‘our boys’ for millions. Moreover, beyond the frustration at the basic unfairness and absurdity of it all was the concern that this would be a ‘floodgates case’ — that it would set a precedent for an avalanche of grievance lawsuits against the British army. The cousins’ lawyers insisted otherwise, and downplayed the significance of the case, as if trying to escape blame for what was to come.
However, one lawyer was very open about having the opposite view, and bragged to journalists about what he saw as the opportunities that the ruling would open up. Phil Shiner told the press that he had at least twelve Iraqi clients he was hoping to represent in similar claims, and that his firm would employ a ‘twin-track’ strategy of bombarding the Ministry of Defence with ECHR claims on the one hand, and personal injury claims on the other.
Shiner’s firm, Public Interest Lawyers, would become the driving force behind efforts to prosecute British soldiers in Iraq, providing 65% of the almost 3,400 allegations of abuse received by the Iraq Historic Allegations Team (IHAT). When asked by The Independent about his motivations, he referred to his Catholic upbringing and his belief that ‘at the heart of the British nation is still that horrible, exploitative, violent, colonial past’.
Another figure snapping at the heels of the MoD was a man named Martyn Day. Day’s speciality was group claims of environmental liability against big multinational companies – a focus that aligned seamlessly with his role as Director of Greenpeace UK. The self-confessed ‘bolshie bastard’ would be dubbed ‘the scourge of the corporates’ by The Guardian for his work suing big conglomerates like Shell and BP as well as the British and Japanese governments. However, what would catapult Martyn Day to human rights fame would be the case of Baha Mousa, an Iraqi man who died in British custody after banned interrogation techniques were used on him.
But the moral-legal crusade of these two men would be brought to an abrupt end by the Al-Sweady Inquiry, which revealed that Shiner had been paying Iraqi agents to round up grievance claims against British forces, while Day represented Mahdi Army militants, aiding them in making fabricated accusations of mistreatment and unlawful killings against British soldiers. Furthermore, Day failed to investigate after being warned by a ‘trusted intermediary’ about the character and conduct of his clients. Watchdog action in 2017 would see Shiner struck off by the Solicitor’s Disciplinary Tribunal and bankrupted, and last month he finally pled guilty to three counts of criminal fraud. Day escaped disciplinary action and remained completely unrepentant, refusing to apologise in multiple subsequent interviews.
In Shiner and Day, we have two exemplars of the fifth-columnist human rights lawyer — men shaped in the same academic crucible and shaped by the same professional culture early in their lives as Keir Starmer. In the Al-Sweady affair we see an almost prototypical Starmerism: two-tier application of the law by self-important, supposedly ‘impartial’ servants of the state motivated in their actions by vicious left-wing political ideology which they self-righteously believe should make them immune to accountability. There’s even the same petty impropriety: Shiner skimmed millions in legal aid from the taxpayer; Martyn Day’s firm, Leigh Day, would be sued by the Kenyan government for fraud, and ruled ‘grossly negligent’ in their handling of compensation they won from Transfigura (£6 million of it ended up embezzled). No doubt this profession is full of individuals who see personal enrichment as a natural perk of the job — a reward for fighting the good fight — which would explain why these people are so frequently caught. They are genuinely baffled when the same law they see themselves as masters of is turned against them.
The Al-Sweady Inquiry did very little to stem the tide of vexatious claims: all it did was redirect them. IHAT would be shut down, but soldiers who served in Northern Ireland continued to be pursued by activist lawyers until 2023. The reason that this is ‘two-tier’ justice is because brazen exceptions are made consistently, and exclusively, for enemies of the state. The Good Friday Agreement gave amnesty to the hundreds of IRA terrorists, torturers, and kidnappers in British prisons, while secret ‘letters of comfort’ provided amnesty to the hundreds more still on the run. No such amnesty was given to British soldiers, who were hounded for such terrible war crimes as ambushing IRA assassins on the way to a hit. When the Sunak government attempted to extend that same amnesty to British veterans, they were challenged by the Irish government in the European Court of Human Rights, supported by none other than Joe Biden.
Regular readers of this distinguished publication will know that the function of human rights law domestically is to protect criminals from the police, from prison and from deportation. Similarly, its function abroad is to protect those who wish to dominate or kill us from the soldiers we send to kill them. These enemies in recent years have included: the IRA, the Taliban, and ISIS, all of whom gleefully kidnapped and tortured to death British nationals, but none of whom ‘human rights lawyers’ are remotely concerned about bringing to justice. One of the most famous of these lawsuits was that of Marine A, convicted of murder for finishing off a mortally wounded Taliban insurgent. Just three months prior to the killing, Scott McLaren was kidnapped, tortured, and dismembered by the Taliban. I remember the outpouring of public support at the time of the Marine A case — protests on TV with thousands of green-lidded, grey-bearded veterans wearing t-shirts that said ‘if killing the enemy is a crime, lock me up!’.
But very few were able or willing to articulate the real reason for why Marine A should have gone free. He eventually had his sentence commuted to manslaughter by arguing that the ‘strenuous tour’ (putting it mildly, one of his comrades had been tortured to death) had affected his mental health, but the truth is that it was just plainly absurd that the law should protect a Taliban militant from being killed by British troops at all. After all, the Taliban were not uniformed and routinely broke every single law of war there was. They used civilians as suicide bombers, they bombed indiscriminately, and they had no qualms about torturing and executing captured British soldiers — but the primary concern of human rights lawyers was that they themselves weren’t mistreated in custody.
There’s something vaguely ‘BLM’ about this arrangement. When a career criminal like Chris Kaba is killed, assorted left-wing talking heads will pretend to care very deeply about ‘due process’ and ‘the rule of law’, with no regard whatsoever for the rights and liberties of Kaba’s victims. So too do the very same human rights NGOs pretend to care about the ‘laws of war’ and Britain’s ‘international reputation’ when rumours are uncovered that British troops killed a terrorist. Police shootings and SAS operations both occur in intensely chaotic situations, and left-wingers are always keen to comb through second-by-second accounts of events to point out a moment where police could have shot Chris Kaba’s fingers off his steering wheel, or the SAS could have captured a Taliban bomb-maker when he was stood metres away from his bomb vest.
So why do these laws continue to exist? Two main arguments are used to justify them, both farcical. The first is that without maintaining the moral high ground, British troops would lose the ‘hearts and minds’ of native populations, and operations would fail. This is a false statement designed to dress up a moral cause as a dispassionate operational improvement — a precursor to the more odious ‘diversity increases fighting power’ and distantly related to dishonest business world Woke articles of faith like ‘diversity increases business dynamism’ and ‘ESG makes our company more profitable’. However, all it takes is an hour of historical research to discover that there is zero historical correlation between the ‘niceness’ of the British army and counter-insurgency success.
In Malaya, the British strategy involved forced relocation of 10% of Malaya’s population to internment camps, the use of Agent Orange throughout the countryside, and widespread beatings of suspected communist guerillas. Famously, the Communist Party of Great Britain published photos of Royal Marines holding the severed heads of dead insurgents. When information came to light that the Scots Guards had massacred twenty-four civilians near Batang Kali, the British government retroactively legalised the activity, by changing regulations to allow the shooting of prisoners attempting to escape. The result? After twelve years of war came the total defeat of the Communist insurgency. Presumably, the ‘hearts and minds’ of the natives were won over by something other than our robust arguments for democracy and women’s rights.
In Kenya, the campaign against the Mau Mau was similarly brutal. Hundreds of thousands were put in internment camps. Detainees were frequently tortured, though the dirty work was often outsourced to Britain’s Kenyan allies, which gave many the illusion that this was a relatively ‘clean’ campaign. Just like in Malaya, the rebellion in Kenya was completely crushed. British campaigns in Dhofar, Aden, and Borneo were also brutal, but also successful.
In Afghanistan, instead of success, we have endless stories of ridiculous rules of engagement hamstringing soldiers in combat. Taliban snipers able to find their range with impunity because it was illegal to shoot them before they had shot first. Officers pausing mid-operation to discuss the baroque details of specific rules to ensure they wouldn’t be prosecuted when they returned home. Soldiers having to bait the Taliban into ambushing them so that they were legally allowed to fire back.
The contrast between the global ‘War on Terror’ and Britain’s twentieth-century colonial counter-insurgencies couldn’t be more clear. One set of operations were fought subject to ordinary military discipline, but with the government supporting the army to decide for itself what was required for victory, and were successful. The others were fought with an army of civilian activists scrutinising every split-second battlefield decision and crying foul-play every time the army killed anyone, and resulted in defeat. The British army cannot be expected to fight abroad if it’s expected to lose, and to accept needless casualties under specific moral circumstances that are set by individuals ideologically opposed to its success.
The only troops in Afghanistan free to take the fight to the enemy were, of course, the special forces, shielded as they were from scrutiny by a nearly impenetrable cloak of state secrecy. However, thanks to recent investigations, the human rights (i.e., pro-terrorist) mob are coming for them too. Former SAS commanders have written to The Times to argue that the successful application of human rights law to special forces operations will result in those operations ceasing to be possible. But at least we’ll have the moral high ground!
The second argument is that of ‘soft power’: that if Britain deviates from these laws, then it will become a pariah on the world stage, with potentially devastating consequences. Just like with our commitment to Net Zero and to open borders extremism, our political elite remain zealously wedded to international norms that have long since began to fade elsewhere. Ask any human rights advocate whether aid to Ukraine should be conditional on the thorough investigation and prosecution of drone pilots that kill surrendering Russian soldiers, or whether America’s ‘standing on the world stage’ suffers significantly because it’s not a signatory to UN treaties banning cluster munitions or land mines. Of course Ukraine will receive our aid regardless of any ‘war crimes’, and of course the United States doesn’t suffer because they haven’t banned specific weapons, because our commitment to international moralism is entirely fake, pointless, and serves only the interests of a small number of legal professionals; some cynical and self-interested, some true believers, but most a bit of both.
The SAS commanders and many others who have come before them in calling for the partial rolling back of the monstrous ‘human rights’ legal edifice don’t go far enough because they fail to grapple with the crux of the problem. The SAS commanders call for a special exemption to be made for soldiers from parts of the ECHR — Tom Tugendhat once wrote a paper calling for something similar — and others have mentioned the Human Rights Act, but the removal of these things wouldn’t have saved Marine A from having to flee into hiding even after his conviction was overturned, and it wouldn’t protect the SAS from being hounded over night-time raids in Syria.
The crux of the problem is the following: hard limits on military activity of any kind put specific conditions on military victory. If, for example, the only way to defeat the Taliban would involve killing a certain number of civilians, then by law we would have to lose. The law of armed conflict used to, and should still, reflect the fact that the army’s number one priority should be to succeed in its mission. We had no problem deliberately killing hundreds of thousands of German civilians during the Second World War because it was what was required, or at least what was thought to be required, for victory. The army’s second priority should be to preserve the lives of its men. The army’s third — not first, not second, but third — priority should be to minimise its negative impact on local, foreign or non-British populations. The British army serves the British people, and no other people, and so should not be inherently and unalterably restrained by arbitrary moral or legal concerns that negatively impact combat effectiveness. The cancerous spread of obstructive human rights law into every aspect of government reflects the slow transformation of the British state into an all-purpose NGO, with the army slowly becoming its expeditionary arm.
The army’s voice in parliament — our supposed ‘Forces’ MPs — have been utterly useless at defending them because, fundamentally, they agree with this vision of the government as an all-purpose NGO. Tom Tugendhat has suggested repealing the ECHR, not to protect British troops from spurious accusations, but to protect the Ministry of Defence from personal injury claims brought by British soldiers. Johnny Mercer is actively (although incompetently) involved in the ongoing SAS investigation. The best defence soldiers get is figures like Ben Wallace or Gwyn Jenkins giving them the benefit of the doubt, and bending rules in the knowledge that the official route more likely leads to a witch-hunt against British soldiers for doing their jobs. The obsession of ‘Forces’ MPs with bringing as many Afghan refugees here as possible also isn’t shared by the SAS, who have blanket refused all requests for asylum sponsorship made of them. Between the SAS and Tom Tugendhat, I know who I would bet is more representative of army rank-and-file opinion.
‘What’s your solution?’, I hear you cry in horror. You can’t seriously be saying that British troops should be allowed to murder and pillage abroad with impunity? No: all that is required is a return to standards before ’90s, where the British army itself, under the appropriate supervision of Parliament, was allowed to decide what was appropriate for operations abroad. Nobody would suggest that in recent decades the army has quite suddenly acquired a reputation for professionalism that it didn’t have previously, so logically it wouldn’t acquire a reputation for thuggery if recent legal changes were reversed. Burn down the whole structure of all human rights law — the ECHR, the Human Rights Act, etc. — for a start, and then salt the earth where it stood.
Ultimately, when this situation is assessed honestly, a number of things become clear. First, that human rights law is almost exclusively used by malicious left-wing extremists to cynically undermine the state both at home and abroad. Second, the British army is seen by large swathes of ‘the blob’ as inherently chauvinistic, patriotic, and imperialistic. It is hated and feared as one of the last organisations capable of exerting oppressive physical force against foreigners on behalf of the British people, and so it is an obvious object for them to attack. And third, that any right-minded government, free from ‘human rights’ superstitions, free from a fear of toothless international institutions, and free from a misguided belief in petty moralism, would dispense with ‘human rights law’, and permit its army to prosecute wars in such a way as it sees fit.