San Diego draft #1

International Symposium on Military Ethics 2008

Civil Combat Immunity: Friend or Foe for the British Soldier?

Rachel Nir

University of Central Lancashire, UK.

ranir@uclan.ac.uk

Introduction

British forces are currently involved in a range of activities overseas often more akin to policing rather than traditional combat or peacekeeping duties. Within the Iraq context, Major Peter Macmullen, company commander in the Ahmed Kareem case,[1] noted that “Soldiers have been expected to act like policemen but have never been trained to do so.” He went on to add: “One of my priorities was the restoration of law and order. We had the burden of doing so but no direction as to how to achieve it.”[2]

This difference in direction was referenced by Tony Blair who called those armed forces personnel being sent to Iraq, “new pioneers of 21st century soldiering.”[3]

The purpose of this conference paper is two fold. Firstly it will examine the law’s treatment of soldiers facing civil liability for decisions and actions taken in a policing role and secondly it will consider the consequences of the law that has developed in this area.

Interestingly, the issue of civil liability receives little media or legal commentary. However, negligent mistakes by our armed forces, whether a driving error, the malfunction of a piece of equipment or a mistimed command, may lead to the injury of both fellow service personnel and foreign civilians. Should service personnel be governed by the usual law of negligence or is there justification for a selective legal response to mistakes made in this policing capacity? If the law is to afford some level of immunity to serving soldiers, then at what point on the continuum between non-combative duties and actions taken in the heat of battle, does immunity intercede.

In order to evaluate the legal responsibilities and liabilities of those currently serving overseas, it is helpful to first examine both the strategic and economic context in which the law operates. What is the UK’s strategic view of the function of its’ Armed Forces and what economic factors may influence the law on soldier negligence?

The strategic and economic context

Lord Guthrie, the UK’s Chief of Defence Staff from 1997 – 2001, gave a public speech on this subject immediately prior to his retirement.[4] He noted that the risk of a war of survival between nation states was receding but that British involvement in what he termed “expeditionary” operations was rapidly rising. Pro-active rather than defensive operations had become the norm hence conflicts in the Gulf, the former Yugoslavia and Sierra Leone.

He identified the reason for this as the reality of “globalisation”. His view, as Chief of Staff, had been that the expansion of global commercialisation had led to developed countries forming a significant commercial comity of interest. The increase in technology based communications and international travel ensured these nations had far more knowledge as to the actions of their neighbouring countries. He noted that actions taken in Korea could have an immediate effect on financial markets in the US and Europe. He postulated that a side effect of globalisation was the desire for religious or nationalistic groups to enforce their own identity hence, he believed, the conflicts in the former Yugoslavia and central Africa.

Inevitably, he argued, UK national interests had become firmly tied to the UK’s role as a key member of the international community. Economic welfare had become linked with the maintenance of international stability. Intrinsic to having a high profile within the international community was, he believed, the assumption of the role of being a “force for good” hence the UK’s involvement in other operations such as East Timor.

Lord Guthrie recently described Iraq as an example of such an expeditionary war.[5] Post war operations in Iraq have exceeded the duration of the original war by tenfold. Operations to stabilise the region after the removal of the regime, have involved British troops in quasi police work.

What of the economic context? The period from 2001 -2007 which encompassed the UK’s biggest defence commitments, namely Iraq and Afghanistan, was financially underpinned by the 1998 Strategic Defence Review. Whilst this was considered robust at the time, Lord Guthrie and other Chiefs of Staff have since stated that the levels of combat activity outstripped levels predicted by the Review. The wars in Iraq and Afghanistan had simply not been anticipated. Funding tensions arose between the Treasury and the Ministry of Defence. Consequently, the new Comprehensive Spending Review which was announced in October 2007 and sets the UK’s defence budget until 2010/2011 has received unprecedented public attention. It commits a 1.5% increase in funding per year between 2007 and 2010/11. This amounts to an increase in spending from £32.6 billion in 2007 to £36.9 billion in 2010/11. Behind the scenes, lobbying by both current and former Defence Chiefs of Staff had not resulted in the allocation of 3% GDP which the Armed Forces had hoped for. Lord Guthrie together with other recent Chiefs of Staff, Boyce and Craig inaugurated a new lobbying vehicle, the UK National Defence Association (“UKNDA”) which commenced a scathing media assault on the government for under funding its’ forces. The UKNDA’s view is that a decade of under funding in the context of the two wars has led to crucial problems including inadequacy of both supply lines for troops in these zones, and support services for those suffering from post service injuries. The NDA argues that if the UK wishes to maintain a defence strategy which is expeditionary rather than defensive then there is a moral obligation to fund defence services accordingly.

The government has maintained that the current allocation is sufficient, defending it on the basis of favourable comparison with the equivalent spending of its allies.

Against this strategic and economic backdrop, what then is being expected of soldiers on tours of duty in parts of Iraq and Afghanistan?

Police work

There are now a number of published soldier accounts of post war operations in Iraq. Steven McLaughlin in his book Squaddie,[6] describes the day to day realities of his own Infantry unit’s tour of duty in Iraq. Duties included long periods of guarding civilian installations such as Basra airport, the management of civilian looters, the transportation of VIPs, the policing of rival religious factions within internal territories, the manning of roadblocks plus search and seizure operations. His tour of duty involved almost no combat.

McLaughlin provides a detailed account of the difficulties experienced by the soldiers in carrying out their duties. He describes severe fatigue resulting from guard duties based on a 5 hours on, 5 hours off rotation for up to periods of 4 months. Hand in hand with fatigue, he notes the chronic levels of boredom. This, however, has to be reconciled with an environment where soldiers suffer anxiety and a sense of vulnerability as a result of both verbal abuse and intimidation from civilians and from having to use equipment he considered to be of poor quality.

A soldier policing in a foreign territory is likely to contend with difficult day to day circumstances. He cannot speak the language, he is unlikely to have a detailed understanding of local politics and religious factions, he will have only a partial understanding of social custom and cultural norms of behaviour including, more importantly, the telltale signs of imminent attack. Unanticipated norms of this kind make the soldier’s job and his ability to assess risk highly difficult. It should further be borne in mind that the circumstances may entirely differ from tour of duty to tour of duty. What may be an acceptable course of action on one tour may not meet the legal benchmark in another. For instance, even within the Iraqi context, it may have been appropriate for our soldier to shoot if defending an installation in Baghdad due to the intensity of hostilities there but not to follow the same course of action in An Najaf.

What standard is expected then of soldiers who make errors of judgement whilst working in such conditions?

The law

As an employer, the Ministry of Defence is, in principle, vicariously liable for the conduct of its employees. The Crown Proceedings Act 1947 removed the immunity from suit which the Crown had enjoyed up until that point. It stated that the Crown would be subject to the same tortious liability as a private person. However some exceptions were identified and, of specific relevance was the prohibition on negligence actions being brought by one soldier against another for personal injury or death. Such prohibition was balanced by the requirement that, in lieu of such a claim, the Secretary of State would issue a certificate that the injury/death was attributable to service. This then qualified the injured or the deceased’s dependents to a war pension.

Forty years later, in 1987, The Crown Proceedings (Armed Forces) Act 1987 became law. The exception was removed and the MOD became liable for claims by service personnel. However, the Secretary of State was given a statutory discretion, should they feel it necessary or expedient during war time, to make an order reviving the old blanket immunity.

Did the 1987 Act mean that soldiers and therefore the MOD as their employer, have become liable for injury suffered by fellow soldiers or civilians? Interestingly, the answer is “no” because what developed through common law was a new doctrine of combat immunity.

Cases

The first case for consideration is Mulcahy v MOD[7] and it concerned a soldier in the Artillery regiment deployed to Saudi Arabia during the first Gulf War. He sued the MOD based on the alleged negligence of his commander. M was part of a team manning a howitzer gun firing live rounds into Iraq whose job was to swab out the gun after firing. In the incident concerned, he alleged the commander negligently discharged the gun whilst he was swabbing out causing him personal injury including loss of hearing. The MOD sought to strike out the claim on the basis that, because it took place under wartime conditions, it disclosed no cause of action.

The Court of Appeal, in the absence of English case law, relied heavily on earlier commonwealth case law.[8] It concluded that a soldier did not owe a duty of care in tort when engaging the enemy in battle conditions in the course of hostilities and, therefore, the MOD was not liable for Mulcahy’s injuries. The underlying policy rationale was the unreasonableness of holding soldiers liable after the event for decisions made under the pressures of combat. To decide otherwise, said the court, would compromise their decision making ability.

Seven years later in 2003, the MOD’s liability to its own soldiers was explored in Multiple Claimants v MOD[9] (“the PTSD case”.) Approximately 2000 claimants sued for psychiatric injury as a result of their involvement in a number of situations ranging from Northern Ireland in the early 1970s, the Falklands conflict in the 1980s, the Gulf War in the 1990s to peacekeeping in Northern Ireland and Bosnia in the 1990s.

The parties had agreed that there was no liability in a “service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations.”

The question which arose on the facts was the precise “ambit” of this immunity. The court went on to make two extensions to the definition laid down in Mulcahy. Firstly, it had to consider whether, because of the Falklands context, it included the planning and preparation of military operations. The plaintiffs had argued that mistakes were made in the planning of the amphibious invasion, in the briefing of troops on route and in the debriefing of troops during lulls in the battle.

Not wishing the MOD to be inhibited from functioning effectively, the court concluded that the immunity did cover the MOD’s planning and preparation of military operations. The interests of service personnel were identified as being “subordinate to the attainment of the military objective.”[10]

A second extension of the immunity then occurred. Consideration was given to the PTSD issues raised by claimants who had been involved in peacekeeping duties in such as Bosnia and Northern Ireland. Did combat immunity afford a defence to the MOD in this situation? The court concluded immunity would apply to “operations in which service personnel come under attack or the threat of attack” such as the “anti-terrorist, policing and peacekeeping operations of the kind in which British forces were engaged in Northern Ireland and Bosnia.”[11]

The scope of the definition had, therefore, been extended and combat immunity provided that soldiers, and therefore the MOD, did not owe a duty of care to service personnel arising from the planning and preparation of military operations. Further, no duty of care was owed during anti-terrorist, policing or peacekeeping operations taking place under conditions short of wartime combat.

A year later in 2004, Bici v MOD[12]was heard in the High Court. This case concerned personal injury claims bought by two civilians arising out of UN peacekeeping operations in Pristina, Kosovo during 1999. Having liberated Pristina, the UN were supervising the transfer of power from the Serbians back to the Kosovar Albanians. It was the first Kosovar Independence day for eight years. British troops were overseeing a large crowd who were firing guns in celebration. Misinterpreting the situation, they fired on a car of civilians. Two passengers were killed and the survivors, the applicants, claimed for damages relating to gunshot wounds to the head and for psychiatric injury. The soldiers’ defence was that they had believed they were under attack from a passenger sat on the roof of the car who they had thought was about to fire on them. They stated that they discharged their weapons in self defence.

In contrast to the two previous cases, Bici clearly related to peacekeeping activities. This time the court moved to narrow the immunity, restricting the protection afforded to the MOD to situations where the threat to service personnel was imminent and serious:

“Even focusing on the soldier’s activities on the night in question, it is plain that they were carrying out essentially a policing and peacekeeping function. I accept that this labelling of their role does not of itself determine matters since even when carrying out those activities they could still be engaged in an attack or threat of attack … But any such threat must in my view be imminent and serious. Indeed, even where they are under some sort of attack, such as where there is a civilian riot that, would not mean that the doctrine of combat immunity would necessarily apply.[13]

Originally, the immunity had only covered errors made in the heat of battle. The PTSD case had extended this to operations carried out in a policing or peacekeeping or anti-terrorist capacity. However, post Bici, a soldier has to show that he was operating under an imminent and serious threat in order to benefit from immunity. This then becomes a factual question based on an evidential assessment of the circumstances.

The courts had clear policy reasons for developing the doctrine of combat immunity. Early judicial commentary stated that it was considered wholly unreasonable to hold service personnel responsible for negligent acts or omissions on the battlefield. In the later cases, the emphasis had shifted: the courts deemed that the state’s military objective should not be inhibited by fear of civil litigation and the related economic costs. What then are the consequences of the current definition of civil combat immunity? This paper will consider two of the key effects of the law.

Clarity of the law from the perspective of personnel

One of the difficulties can perhaps be best expressed by the MOD’s own annual claims report for 2004/5. It described the law on civil combat immunity as “a complex matter… because… the decision on when to plead such a defence is taken on the basis of the merits of the individual cases.”[14] Feedback from the Association of Personal Injury Lawyers was that the negotiation and settlement of claims was hindered by a lack of legal certainty for all parties. It was difficult for either a soldier claimant or the MOD to anticipate the likely outcome of a case.

Bici raises the possibility of each case being considered on its own merits because of the necessity of the court determining, by way of post facto risk assessment, whether the actions of the service personnel in question were legally justified. It is submitted that this is highly undesirable for the policy reason outlined in Mulcahy. It is doubtful that the net effect of the current common law can be communicated effectively to a serving soldier. To that extent the law on combat immunity is unlikely to provide practical protection to the soldier making decisions under pressure. It is also unlikely to have any kind of preventive effect in reducing negligent acts or omissions. All three cases are perhaps a collective example of how removed the civil courts can appear to be from military reality.

The second consequence dealt with by this paper is economic in nature.

Prioritisation of the state’s collective freedom

War inevitably places a huge economic burden on the state and it is of no surprise that the judiciary, recognising this, sought to limit the extent to which legal liability might add to this burden. Implicit in civil immunity is a prioritisation of the MOD’s collective freedom at the expense of the individual soldier who may be injured. The latter’s individual freedom of action in the event of negligence on the part of another has been compromised to the benefit of the state’s interrelated defence and economic interests.

But what is the effect of protecting the state’s economic interests? Assuming a negligent act on the part of a soldier, what happens for instance to the serviceman injured by his negligent colleague? This serviceman may have to move to lighter duties, or indeed be pensioned out of the service. He may also be living with reduced physical function and pain, reducing his quality of life. Significantly, his long term ability to earn a living may have been seriously compromised. If the state has no liability in law to the injured soldier then to what extent is he compensated for his injuries? Is there a solution to meeting the needs of both state and individual?

Interestingly, the mechanism recently chosen by the UK was mentioned as far back as 1965 by Burmah Oil [15], one of the original commonwealth cases on which the British courts relied. The court had noted that:

“… where war damage is concerned, the longstanding absence of any recognition that there is jurisdiction in the courts to award compensation is based on sound considerations of public policy. Such damage is a matter, being unpredictable in extent and range …..and it is for those who fill and empty the public purse to decide when, by whom, on what condition and within what limitations such compensation is made available.”[16]

The court’s view was that the state could elect to pay compensation based on what it considered it could afford to pay. Some 40 years later, in 2005, a formal MOD scheme for paying compensation to injured service personnel came into force.

The new Armed Forces Compensation Scheme (the “AFCS”) was introduced in 2005. It is a no-fault employer compensation scheme based on a tariff scheme similar to the UK’s Criminal Injuries Compensation Scheme. It was initially welcomed by Personal Injury lawyers representing injured soldiers but, in its infancy, has faced three key criticisms. The dominant concern is that levels of compensation are low and that by calling it a “compensation scheme,” the MOD may be, in effect, misleading the servicemen seeking to rely upon it. In her article in the Journal of Personal Injury Law,[17] Hilary Meredith used an example of a claim for traumatic back injury with persistent and serious long term functioning problems. She calculated that a common law claim would provide ballpark compensation in the region of £650,000-700,000 (taking in to account significant future loss of earnings and pension rights). She demonstrated that the equivalent award under the scheme would be in the region of £40,000 – 50,000. There was no compensation for future loss of earnings or pension rights, and no provision for interim payment. There was, she believed, a clear financial gap. The extent of the gap can be debated. The figures may have been calculated at their most polarised and, of course, a claimant under the common law is likely to settle their claim for less the full amount. However, AFCS payouts are clearly below the level of equivalent personal injury claims.[18]

A second concern, raised by stakeholders consulted by the MOD, is that the scheme had not been well marketed and explained to service personnel.[19] These stakeholders felt that the number of claims might be low, further inhibited by the complexity of the application process. It might also be said that, potential claimants who are still in service may to be reluctant to bring claims against their employer.

A third concern relates to claimant access to legal representation. Firstly, the scheme does not allow for the separate recovery of legal fees, these must be deducted from any compensation awarded. Secondly, as Hilary Meredith notes, “under the current AFCS [claimants] would receive little advice to contact a solicitor.”[20] A claimant may, therefore, be unaware of whether they would be likely to receive a higher level of compensation if they brought an ordinary personal injury claim through the courts. This area of personal injury law has always been one where representation was deemed to be key simply because of the fundamental inequality of bargaining power between the individual claimant and the defending organisation. A significant number of claims are brought by the family of deceased personnel where it can be argued representation is vital.

The extent to which the scheme will be successful is very unclear.[21] There was significant media coverage in August 2007 of the low level of awards in the context of personnel sustaining multiple injuries in Iraq and Afghanistan. In essence, they received far less than a civilian claiming for multiple injuries claim through the civil courts. This led to an early review of the scheme being instigated by the Minister for Defence.[22] The review confined itself strictly to the issue, producing a specific amendment to the mechanism for calculating awards for those who suffered multiple injuries. It did not review the Scheme as a whole.

Comment

The question that arises is whether it is legitimate to pay relatively nominal compensation to injured personnel in order to control the defence budget? How should the state balance these two competing interests?

Using liberalism as a methodological starting point would prioritise the individual soldier’s rights. When he joins the army as a private individual, the contractual model is adopted. He negotiates with the state and, in order to give informed consent to the terms and conditions which will govern their relationship, the soldier requires full disclosure of all rights and obligations. The issue of what will happen both if he makes a mistake and /or if he sustains injury should, therefore, be clearly explained. Liberals would say that there should then be no misrepresentation as to levels of compensation or entitlement to legal representation.

The adoption of a utilitarian stand point would produce a diametrically opposite result. Adopting Bentham’s concept of jurisprudence, a costs/benefits analysis would endorse the state’s current economic pragmatism on this issue. Civil combat immunity reduces the financial burden on the state in time of war. This is to the greater good of the majority. Further, the state has to take a managerial point of view in its organisation of human resources. In the context of compensation, it has to manage soldiers’ expectations. It is pragmatic to run a scheme which provides modest financial assistance to those injured and is also cost effective to administer because it does not seek to promote true equality of bargaining power between the scheme’s managers and the soldier claimants.

The application of these different approaches would produce very different outcomes as to the way forward when balancing the state versus the individual’s interests in times of conflict. There is, however, an alternative consideration. Whilst, jurisprudence can assist in identifying the issues and providing a mechanism with which to balance the competing interests of state and individual soldier, would such clarification help? Can it produce a solution? In the UK, solutions to the funding of our armed forces, and more specifically of soldiers financial needs, tend to be piecemeal or incremental depending on the economic cycle. The very limited amendment to the AFCS, to reflect public concern over soldiers sustaining multiple injuries, is an example of this. A one off allocation of additional funding to meet a public perception of the inadequacy of forces housing is another. There is a credible argument that exposing governmental contradictions in funding arguably produces only minor changes to meet public concerns but, in the wider sense, may significantly undermine the morale of those in the armed forces.

Conclusions

The fast changing nature of warfare and the related role of the armed forces, particularly in meeting policing and peacekeeping functions, has strained the definition of combat immunity. The development of a doctrine of combat immunity came about for sound reasons of policy but left to the common law, rather than to legislation, has resulted in a definition which is fact dependent and difficult to apply. Further, this directly impacts on the injured soldier who may look to the AFCS for compensation, a scheme with significant financial limitations. Whether the low level of compensation paid by the Scheme is acceptable to the state depends on the jurisprudential approach taken. It could be argued that raising public awareness of the wider economic issues which the Scheme presents might falsely raise the expectations of serving personnel and thus undermine morale. Further, by bringing such issues to the public’s attention, could it be said that commentators and the media , necessarily impose an increased workload on the MOD, utilising the very resources which are in question?

NOTES