Human rights cannot be dismissed as a technical impediment to the ‘real’ work of the military.

What could have brought together Jack Straw, the Ministry of Defence, a clutch of generals and the Defence Committee of the House of Commons? Why, none other than the application of the Human Rights Act to the operations of the military. The committee has just published a response to ‘a concern amongst armed forces personnel that they and their legitimate actions are frequently exposed to extensive legal scrutiny in coroners’ courts, public inquiries and cases brought under human rights law’.  

The trouble is, of course, that, from time to time, it is the military’s illegitimate actions that come under scrutiny. Two spectres loom like a twin version of Banquo’s ghost over the defence committee’s feast. One is the battered head of Baha Mousa (killed while in military detention); the other is the iconic orange jumpsuit worn by detainees at what Lord Steyn called ‘the legal black hole’ of Guantanamo Bay.

Straw’s written evidence to the committee was to the effect that, as the home secretary responsible for the Human Rights Bill, it was ‘to the very best of my recollection… never anticipated that [it] would operate in such a way as directly to affect the activities of UK forces in theatre abroad’.

And, furthermore, ‘the current responsibilities imposed by the courts upon military commanders, and all other personnel in the field, go too far. It cannot be acceptable for commanders to have, as it were, to look over their shoulders in real time to lawyers when making both tactical and strategic decisions in the field, to the extent that now appears by current law to be required of them’.

Straw is being elusive. The issue is not what is known in the field as ‘combat immunity’. Everyone accepts that, once on the battlefield, decisions of commanders should remain legally unchallengeable. Anything else would be unworkable. Other questions, such as conduct towards detainees, raise different considerations.  

The argument for acknowledging the human rights of detainees in the custody of the army is highlighted by what can happen if they are denied. In that case, what is known as the law of armed conflict or international humanitarian law would apply, the best known elements of which are the Geneva Conventions.

These were developed against the paradigm of the second world war and are not well suited, as the defence committee agreed, to internal conflicts, and still less, let it now be admitted, to wars of colonial subjugation (during which they were largely ignored by all colonial powers).

As a consequence, the Bush administration could clutch at the straw notion of ‘enemy’ or ‘unlawful combatants’ – a categorisation advanced under president Bush though now repudiated by president Obama. These, it argued, were unprotected either by international human or national constitutional rights – particularly if the detainees were kept off the US mainland and not US citizens. Bring on the CIA waterboarders.

A further advantage of human rights protection, instantly appreciated by any lawyer, is that protection under the Human Rights Act comes with a legal remedy: appeal to the European Court of Human Rights. This is how lawyers for Baha Mousa’s father successfully broke through years of ministerial obfuscation and got a review into his son’s death that, for the first time, brought out its full circumstances. Absent that, Baha Mousa would have been reduced to a minor, if unfortunate, statistic.

We should also be clear what the realpolitik problem is with repudiating human rights standards. Human rights reflect universal values: that is their point. So, how do the military think that local populations feel about being subject to the arbitrary actions, random violence and sheer abuse of power? Yes. That’s right. Angrily enough to pop out the next night and bury a few IEDs. There is no point in using a humanitarian justification for invading various distant countries and then alienating the very population that you went in to protect.

The committee’s report is pretty shoddy. And Straw knows enough to have encouraged a more nuanced position. The committee gives no account of how lawyers – among them English solicitors – developed the supervisory jurisdiction of the European court in the service of improved military behaviour. For example, the court prohibited five widely used abusive techniques against detainees in Northern Ireland.

Let us remember that the military had to be reminded in Iraq – by one of their own number (a courageous army solicitor) – of the human rights obligations thereby confirmed. There may be a need to harmonise two streams of accountability and to articulate clearly the application of human rights in war and occupation zones. There is no case for a slovenly dismissal of human rights as a technical impediment to the ‘real’ work of the military in the modern world.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice