Our Forces take enough risks without having to face British lawyers

Britain must derogate from the ECHR for military operations abroad

I first started writing about the intervention of the law in battle in 2013 as I was leaving my time in uniform. I highlighted the problems of the misapplication of the wrong laws. We have law in war - often known as the Geneva Convention - but it is not the same as civilian law. They can’t be. That would make warfare illegal and so leave those who obeyed the law vulnerable to those who did not. I wrote the following for the Telegraph.

19 February 2025

After serving in combat in Iraq and Afghanistan, I left the British Army. The first thing I did was warn of the creeping judicialisation of warfare I had seen. On patrols and in headquarters I saw how the increasing fear of future prosecution is undermining Britain’s military effectiveness and constraining courage, leaving us more in danger.

Today, our armed forces operate under a fog of legal uncertainty that makes them hesitate when decisive action is needed. That is already costing us all and strengthening our enemies.

How could you order soldiers into battle if the health and safety considerations are the same as those applying to an accountant? Only those prepared to act beyond the law will be able to win a future conflict.

The problem stems from the growing application of civilian law and European human rights frameworks to the battlefield – an environment they were never designed to regulate. Our soldiers in combat are increasingly being held to the same standards as police officers on a Saturday night in the West End, and being judged by people who have never known, and will never understand, the fear and confusion of battle.

Our ancestors understood the difference – they wrote the laws of armed conflict under the Geneva Conventions to apply in combat. They didn’t try to make civilian law fit the battlefield.

This legal mission creep has real consequences. By early 2015, over 1,200 public law claims had been filed against the Ministry of Defence relating to operations in Iraq alone, with about a further 1,000 private claims in train. The vast majority of these cases were eventually dismissed, but not before dragging servicemen and women through years of investigation and legal proceedings at enormous emotional and financial cost.

The extension of the European Convention on Human Rights (ECHR) to military operations abroad has been equally corrosive. The ECHR was designed for peacetime civilian governance in post-war Europe. Its requirements for the use of lethal force “only when absolutely necessary” may work well for domestic policing but are wholly impractical in combat. You don’t fire a warning shot in battle.

Under the Geneva Conventions, soldiers may use lethal force as a first resort against enemy combatants. This reflects the brutal reality of warfare. But the expanding reach of the ECHR means commanders must now second-guess every tactical decision against civilian human rights standards developed by judges in Strasbourg.

Of course, our armed forces must operate within clear legal frameworks. When I wrote two papers for Policy Exchange – the Fog of Law, and Clearing the Fog of Law – I showed how the laws of armed conflict, developed over centuries and codified in the Geneva Conventions, provide appropriate rules for military operations. When it appears that these appropriate laws have been broken breached – as with the deeply troubling allegations of unlawful killings by special forces in Afghanistan – there must be proper investigation and accountability. By using the right law, ensuring justice is possible in battle.

Such accountability should focus on those who bear command responsibility for systematic failures, or those who flagrantly violate the Geneva Convention – not those who acted according to their rules of engagement in the heat of battle. And investigations must be conducted swiftly and fairly, not allowed to drag on for years while lawyers profit and reputations are destroyed.

The solution is straightforward: Britain should formally derogate from the ECHR for military operations abroad, as Article 15 of the Convention explicitly allows. This would restore the primacy of the Geneva Conventions in governing military conduct.

We should also reinstate combat immunity against negligence claims while ensuring proper no-fault compensation for those injured or killed in service. This would remove the threat of litigation while still providing for those who sacrifice for their country.

Some will claim this creates impunity. Far from it. The Geneva Conventions and military law provide ample scope to prosecute genuine war crimes. But they do so in a way that recognises the unique pressures and split-second decisions required in combat.

Others worry this could lead back to colonial-era abuses. But today’s professional armed forces operate under intense scrutiny, with body cameras, drones and instantaneous communications providing unprecedented oversight of military operations.

The real risk lies in continuing down the current path. As threats multiply – from Putin’s Russia to an increasingly aggressive China – we need armed forces confident in their legal standing and able to act decisively when required. The alternative is a military paralysed by legal uncertainty and risk aversion.

Parliament must act to clear this fog of law. Our service personnel deserve to know they will be judged by appropriate military standards, not civilian frameworks designed for peacetime policing. Only then can they focus on their vital mission: defending Britain’s security and interests around the world.

That doesn’t mean returning to an era of unaccountable military power. It simply means recognising that warfare requires its own legal framework – one that balances military necessity with humanitarian principles while acknowledging the brutal realities of armed conflict.

Lawfare has left our military exposed, our officers cautious and our soldiers at risk. Applying the right laws to conflict isn’t just about them – lawfare has left our country vulnerable and our enemies stronger. Our national security depends on fixing it.