All warfare is based on deception

Bamboo_Book_binding

Bamboo book of The Art of War – title and contents page

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:

兵者,詭道也。故能而示之不能,用而示之不用,近而示之遠,遠而示之近

(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.

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Combat immunity takes a hit

In an earlier post I looked at a number of cases involving actions against the Ministry of Defence (Civil liability in uniform). This had been prompted by the Snatch Land Rover case of Smith & Others v Ministry of Defence [2011] EWHC 1676 (QB).

The Land Rover Snatch-Vixen vehicle on show at the Urgent Operational Requirement (UOR) Equipment Demonstration in Salisbury, Wiltshire.

As a reminder, this is a Snatch Land Rover. The Ministry of Defence sought to have a number of negligence claims struck out on the grounds of “combat immunity”. The claims were based upon the assertion that as these vehicles were known to provide little protection, particularly against improvised explosive devices or roadside bombs, their continued use in Iraq was negligent.

Today the Supreme Court has upheld the original decision of Mr Justice Owen made on 30 June 2011, that the claims should not be struck out on the basis of combat immunity, but should proceed to trial (Smith & Others v Ministry of Defence [2013] UKSC 41). The Supreme Court said:

92. The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to [procurement, training or other] failures at that earlier stage. I would answer it by [saying] that the doctrine should be narrowly construed. To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted….

95. … At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the [procurement of equipment], there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances…

The point that this duty of care arises outside of actual combat is already being overlooked, with even the Secretary of State for Defence, Philip Hammond, saying in an interview on ITV News that this will hamper decisions of commanders in the field. Perhaps he, and others who consider this judgement will affect military operations, should actually read the judgement.

I continue to believe that the Ministry of Defence should be liable for any negligence, subject to a narrowly construed combat immunity. Politicians should not have sought to extend combat immunity to negligent acts and omissions concerning training and procurement. It should be a basic part of the military covenant that our Armed Forces are only deployed with the appropriate resources and training for the task at hand, so as to minimise risk of death or injury. If exceptions are needed, then, as my previous post sets out, the politicians already have the legal mechanism to provide for them. They need only be explicit about, and accountable for, the risks of death or injury they expect our servicemen and women to run in our name.

Civil liability in military uniform

One of the first Acts of Parliament I ever had to study was the Crown Proceedings (Armed Forces) Act 1987, which cropped up whilst I was revising my course notes for my Engineering Officer Training (Part 1) exams in the RAF in 1988. Although I’ve given the link, don’t bother looking it up – it merely repeals, subject to conditions, section 10 of the Crown Proceedings Act 1947. At the risk of sounding like an old fart, in the “old days” before internet, I could not look up the 1947 Act, so I skipped over those part of the notes. I wonder how many of my peers, who may by now be in senior ranks in the RAF, did the same?

I did finally get to understand the impact of the repeal of section 10 when I trained to be a health and safety officer. Section 10 of the 1947 Act was essentially understood by serving members of the Armed Forces to exempt the Ministry of Defence from any liability for death or personal injury suffered by someone “while on duty” as a result of the act or omission of another member of the Armed Forces. With this section being repealed, many of us in the health and safety field realised that any lack of “reasonably practicable” working systems, policies or practices would be damning in any negligence claim. Many of us also realised, perhaps cynically, who would be blamed if something did go wrong – in the military, junior officers and SNCOs know very well that “shit rolls downhill”.

So what, you ask? Contrast these cases.

Nimrod MR2 XV230

This is the RAF Nimrod MR2 XV230, which was deployed to Afghanistan from 120 Sqn, RAF Kinloss. Tragically, it exploded in mid-air over Kandahar Province on 2 September 2006. The entire crew were killed – RIP Sgt Benjamin Knight (25), Flt Sgt Adrian Davies (49), Flt Sgt Gerard Bell (48), FLt Lt Steve Swarbrick (28), Flt Sgt Gary Andrews (48), Flt Lt Allan Squires (39), Flt Lt Gareth Nicholas (40), Flt Lt Leigh Mitchelmore (28), Flt Lt Steven Johnson (38), Flt Sgt Stephen Beattie (42), Marine Joseph Windall (22), Cpl Oliver Dicketts (27), Sgt Gary Quilliam (42) and Sgt John Langton (29).

Although this loss of life occurred during active service, the Ministry of Defence accepted liability for the crash, which the RAF Board of Inquiry considered was a result of fuel leaks (see here). An independent review of the Nimrod crash under the chair of Charles Haddon-Cave QC was more damning. It’s report noted:

Loss of XV230 avoidable
9. The Nimrod Safety Case was drawn up between 2001 and 2005 by BAE Systems (Phases 1 and 2) and the MOD Nimrod Integrated Project Team (Third Phase), with QinetiQ acting as independent advisor. The Nimrod Safety Case represented the best opportunity to capture the serious design flaws in the Nimrod which had lain dormant for years. If the Nimrod Safety Case had been drawn up with proper skill, care and attention, the catastrophic fire risks to the Nimrod MR2 fleet presented
by the Cross-Feed/SCP duct and the Air-to-Air Refuelling modification would have been identified and dealt with, and the loss of XV230 in September 2006 would have been avoided.
Lamentable job
10. Unfortunately, the Nimrod Safety Case was a lamentable job from start to finish. It was riddled with errors. It missed the key dangers. Its production is a story of incompetence, complacency, and cynicism. The best opportunity to prevent the accident to XV230 was, tragically, lost. (Chapters 10A
and 10B)

Undisclosed compensation was paid by the MoD to relatives in settlement of their negligence claims.

The Land Rover Snatch-Vixen vehicle on show at the Urgent Operational Requirement (UOR) Equipment Demonstration in Salisbury, Wiltshire.

This is a “Snatch” Land Rover.  These vehicles were deployed to Iraq and Afghanistan, but were subject to extensive criticism as they provided little protection to their users.  Various press reports claim that over 37 British servicemen or women have been killed in Afghanistan whilst travelling in them.  A number of legal claims have been made in respect of these deaths and others’ injuries, based upon the assertion that as these vehicles were known to provide little protection, particularly against improvised explosive devices or roadside bombs, the Ministry of Defence was negligent.  One of the bases of some of the negligence claims concerning Snatch Land Rovers suggests that the Ministry of Defence was negligent in not procuring suitable alternative vehicles to the Snatch Land Rovers, once it was realised that these were extremely poor in theatre.  However, these claims have to date been unsuccessful, based upon the defence of “combat immunity”.

In both the Nimrod and Snatch Land Rover cases the use of old, outdated or inappropriate equipment was key, but in the Nimrod case there was no other intervening action; equipment failure led directly to the deaths.  In the Land Rover cases, there had to be the intervening action of an IED.  It seems inequitable and distasteful that the Ministry of Defence should be able to evade liability in the Land Rover cases on this basis.  However, this may be about to change, following the brave decision of Mr Justice Owen, who, on 30 June 2011, rejected an application by the Ministry of Defence to strike out a claim on the basis of combat immunity, at least in respect of this negligent procurement argument (Smith & Others v Ministry of Defence [2011] EWHC 1676 (QB)).

It is my view, perhaps biassed as an ex-serviceman, that the Ministry of Defence should be liable for any negligence, both in peacetime, emergency operations or in conflict. If the nature of any combat is vitally important, so that what would otherwise be considered to be negligence should be disregarded under exceptional national interests, then politicians should “man up” and state that this is the case. The mechanism already exists for the Secretary of State to make an order to revive section 10 of the 1947 Act under such circumstances – see section 2 of the 1987 Act. It should be an accepted part of the military covenant that we only deploy our Armed Forces with the appropriate resources and training so as to minimise risk of death or injury to the ALARP level.