The title to this post is a proverb that can trace its roots to the Chinese book, The Art of War, attributed to Sun Tzu. It comes from the passage at verse 18 in Chapter 1:
(All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.)
It would seem, following the report by the Policy Exchange titled The Fog or War, that deception includes convincing politicians that military action is being impeded by actual or potential legal oversight.
I have written before on combat immunity, one of the topics discussed in The Fog of War, following the High Court judgment in Smith and others v Ministry of Defence (Civil liability in military uniform) and the Supreme Court ruling in the same case (Combat immunity takes a hit). I concluded that I cannot see any justification for giving the military a broad exemption from liability for negligence claims. As the Policy Exchange itself points out, there is a mechanism for the Secretary of State to give the military immunity where required in the national interest, subject to Parliamentary scrutiny (section 2 of the Crown Proceedings (Armed Forces) Act 1987). I summarised my view in a radio package by Voice of Russia on the Policy Exchange report – listen here.
However, The Fog of War also addresses the question of the application of human rights law to the battlefield. It suggests a scenario where battlefield commanders at all levels become inhibited from acting as a result of their concern about subsequent legal scrutiny of their actions. Similarly, the impact of health and safety legislation, despite the many exemptions that apply to the military, is discussed as being a burden. Much is made of the evidence given before a House of Commons Select Committee of “over-compliance” by the MoD with health and safety regulations. The report also details the nature (and exemptions) included in the Corporate Manslaughter and Corporate Homicide Act 2007. We are being led to believe that as the Supreme Court in Smith v MoD restricted what were ‘military activities’ for the purposes of what constitutes combat immunity in negligence actions, ‘judicial mission creep’ will bring about paralysis on the battlefield. Commanders under fire will think more about potential law suits than the task at hand.
This all suggests a massive lack of training and understanding by the military of their obligations and duties under the law. I am tempted to be tribal and say this must be an army and navy problem. I was regularly given training during my time in the RAF on what was then called the Green Card (rules of engagement when armed in the UK) and was also required at one point to learn the Yellow Card (rules of engagement when in Northern Ireland). As an officer in charge of armed guards, I also had to give reminders to guards about to go on duty on their rules of engagement. None of this was too difficult.
Similarly, I don’t see that with proper training, the application of human rights and the law of armed conflict should hinder operations. To give the military some implied discretion over the relative importance of human rights and rules such as those under the Geneva Convention in tactical situations to me seems a dangerously retrograde step. Does anyone think that Marine A was not guilty of murder?
I was also the first officer trained in health and safety to be posted to a joint service unit in the Falklands (JCUFI). As might be imagined, this required a lot of remedial work in writing up safety policies and procedures, as well as training the non-RAF elements (the RAF at that time seemed far more advanced in health and safety compliance, possibly because in many ways the RAF is essentially an engineering and logistics operation). I came across a lot of initial resistance from those who had never considered or been trained in health and safety best practice, with similar complaints to those listed in Fog of War that to be health and safety compliant was to reduce military capability and effectiveness. However, careful explanation of ALARP principles (in practice, the application of common sense) and the realisation that ALARP practices usually led to more efficient procedures and outcomes usually convinced personnel (and superiors).
What I find particularly alarming about The Fog of War, however, is the argument that as the British military is always under-resourced, it must rely on risk-taking:
In comparison with its rivals, the UK has traditionally maintained armed forces at levels which might easily seem inadequate for the tasks which they are expected to face. They have compensated by training and encouraging leaders at all levels to innovate. Historically, this has allowed the UK to maintain a smaller force than its rivals – and still more than match them on operations. In the 2011 version of the military’s professional instructions, the British Army states that: “a warfighting ethos, as distinct from a purely professional one, is absolutely fundamental to all those in the armed forces”. This is not an arbitrary distinction. As the recently retired Commander of Force Development and Training, Lieutenant General Sir Paul Newton puts it: “The reason we make this particularly British distinction is that our armed forces are small; they do not enjoy unlimited resources; and we tend to commit the military only as a last resort so wresting control away from the adversary requires agility; confidence can be a life or death issue. As the doctrine states, ‘this approach requires … decentralised command,
freedom and speed of action and initiative, but which is responsive to superior direction when a subordinate overreaches himself ’.” Small militaries must be creative and take calculated risks if they are to prevail. But this initiative, central to the British way of warfare, risks being undermined by juridically-inspired caution.
Britain’s forces have a reputation for agility because they have traditionally accepted risk. Being willing to deploy with what they have – both in terms of equipment and training – and then adjust according to requirement on arrival has given the UK a speed of reaction that few others can match.
To anyone who has read any critical analyses of the conduct of the British armed forces in recent engagements, these passages are particularly dispiriting. Whilst ‘can do’ and ‘cracking on’ attitudes can be commendable, even military training videos show that an excess of these attitudes can lead to trouble.They also encourage politicians to act too quickly and, in my view, be too ready to turn to the military option.
It’s the lack of critical thinking that is worrying. The authors of The Fog of War do not seem to appreciate that recent military actions in Iraq and Afghanistan, where there has been the most alleged judicial creep, should at best be described as police actions. These were not and should not be seen as wars, just as the prevention of terrorism should never be catagorised as the almost oxymoronic ‘war on terror’.
An aggressive, warfighting ethos that is risk-taking and not risk-averse is not always the best approach. Such a culture only breeds high ranking officers who are incapable of saying “No” to their politician task-masters. I particularly recommend the book Losing Small Wars for the analysis of Frank Ledwidge on the damaging effects of this culture, particularly for police and anti-insurgent actions.