Off Topic: Bizarre UK Human Rights ruling

[Yair Iny]

ASL, The commanders won't be personally liable for civil damages. Rather the military will not be immune to being sued by hiding under the "combat ops" shield.

Realistically, all organisations which are driven by funds, which is ALL organisations, are most sensitive to money. Making the military pay for it's commanders' negligence is the best way for people from the outside, ie civilians to force the military to pay the proper attention to those issues.

As a slightly related example, I used to be in the IDF both a regular soldier and after that (as all IDF soldiers must), a reservist. Now, as a reservist you get paid your civilian salary when you go to the reserves every year. It used to be paid by the Social Security office and not directly from the IDF's budget. Guess what, the IDF used to call you up for the full quota every year, and waste your time doing crap jobs and what not. Some time after I became a reservist, they changed it so that the IDF's budget got a bit bigger, but it started paying the reservists' salary from it's own budget. Now guess what, suddenly they called you up for half the time and made sure you spent it well (at least way better than before). Nothing like money to force organisational change.

Cheers

[Battlefront.com]

ASL Vet,

The main thing that I want to emphasize here is that the US has a legal structure in place for civil suits filed against the US Government and those lawsuits are filed within that legal structure. The danger with the ruling in the UK is that there is no legal structure in the Human Rights Law and if someone dies for any reason at any time you can sue the government via the Human Rights Act.

Er... but that's true under US law as well. You can basically sue anybody for any reason at any time. In fact, this is a fundamental weakness of the US judicial system because the real expense of defending oneself against spurious claims is a major issue. I'm tangentially involved in a civil breach of contract dispute (nothing to do with Battlefront) where in a matter of days both sides racked up tens of thousands of Dollars in legal fees. The side I'm related to believes it's in the right, but to PROVE it will cost several hundred thousand Dollars more. And on the other side, to challenge such actions they too will have to spend hundreds of thousands of Dollars. All over something which is likely worth a few tens of thousands of Dollars. But I digress a bit

In the military today a member of the military who is suspected of having caused a death through negligence is brought up on a Article 32 proceeding, which is under the UCMJ because the military has initial jurisdiction. Through that the individual may, or may not, be charged with a particular offensive. If he/she is, then they go through the court marshal procedures. If found guilty of charges, the individual may be punished in a number of ways, including death.

My point is that gross negligence of command is definitely covered under this. Therefore, if an officer allowed someone under him/her to die or serious injured OUTSIDE of normal risks, then the charges are brought and things go on from there. Look back at my link to the 1994 downing of the Blackhawks for examples of this. The military also paid compensation to the victims' families, including non-US nationals. Since suing the military is a vastly expensive, and likely fruitless, endeavor... I'd bet the families took the compensation and did not pursue civil actions (which likely would have failed because there was no civil jurisdiction in the case).

Which gets us back to the primary point... does the UK ruling really do anything that isn't already a part of British law? I don't know because I don't know squat about the UK legal system. But I do have a pretty good sense of how things work in the US and find that such accountability already exists here and yet we still have a military in the field conducting combat ops without families suing or the military punishing commanders left right and center for deaths under their watch.

Steve

[Battlefront.com]

Yair Iny,

ASL, The commanders won't be personally liable for civil damages. Rather the military will not be immune to being sued by hiding under the "combat ops" shield.

Realistically, all organisations which are driven by funds, which is ALL organisations, are most sensitive to money. Making the military pay for it's commanders' negligence is the best way for people from the outside, ie civilians to force the military to pay the proper attention to those issues.

Yup, that's the way I see it. And it's also one of the two reasons why the US refused to sign the UN convention which would have allowed local authorities jurisdiction over US military personnel operating on its soil. Here, I think, is where I'd agree with ASL Veteran that things would go in a very bad direction. Take for example the recent case of the Marines who raped and killed a 14 year old girl and killed the rest of her family. If the Iraqis had jurisdiction they probably would have convicted them in a day without a fair trial and had them executed the day after.

While in this case such a kangaroo court would have actually arrived at a justifiable conclusion (because the Marines charged really did do the heinous crimes), there would be dozens of cases where that would not be true. For example, imagine how many NATO pilots would have been tried and executed for causing civilian casualties in Iraq if local courts had the authority to arrest, try, and punish US military personnel? What sane individual would become a pilot and agree to go into a combat operation knowing that some enraged locals on the ground would get to take revenge on you for accidentally causing civilian casualties? Especially in a combat theater where the enemy is DELIBERATELY making sure such civilian casualties occur. So in this case I fully agree that if that were the case nobody would sign up to become a combat pilot. However, they do sign up to be combat pilots, and conduct combat operations where innocents are killed, knowing full well that if they really screw up that there are consequences. As the two pilots in the aforementioned 1994 incident over Iraq clearly shows.

Steve

[Clavicula_Nox]

yet we still have a military in the field conducting combat ops without families suing or the military punishing commanders left right and center for deaths under their watch.

Pat Tillman's family seems to be hellbent on causing the Army as much grief as possible; as their ruckus over McChrystal's Afghanistan appointment shows. I don't entirely blame them, but at some point, I think they need to let it go.

[Battlefront.com]

The Tillman issue is that the Army deliberately lied and covered up evidence that his death was due to friendly fire, not that he was killed by a regrettable (but not unusual) mistake. If the Army had come clean right away I doubt very much that his family would be pursuing legal action.

Contrast this with the SEAL that was left behind during the botched assault on a mountaintop Taliban position. The whole operation was a fustercluck of poor planning, over confidence, and lack of viable contingency options. One SEAL was left behind and he was captured, tortured, and executed before the position could be retaken. To the best of my knowledge years later the SEALS are still getting people to join, are still fighting in Afghanistan, and there has been no lawsuits against the officers who screwed the pooch on the mission planning. But I could be mistaken

Steve

[Guinnessman]

If the government investigates for negligence and finds that a negligent act was committed then whichever civil attorney took up the case would have a slam dunk victory just waiting for him since the government already made a finding for him. All the attorney would have to do would be to file the paperwork and watch the cash roll in. Thus, there is very little motivation for the Ministry of Defense to investigate questionable acts on their own.

See, this is where it gets interesting.

Every British serviceman/woman who dies has an inquest held into their death in the UK, including those who are killed in action. The MoD doesn't the inquest, it's up to the coroner (which until recently was the local coroner for RAF Brize Norton, where all our war dead are flown back to).

Solicitors already represent the families of the dead at these inquests, and the coroner can and frequently does rule that the deaths were 'unlawful' (however little that means when a soldier is killed by hostile action).

Examples:

http://news.bbc.co.uk/1/hi/uk/6449227.stm

http://www.dailymail.co.uk/news/article-1035418/Operation-Certain-Death-inquest-hears-British-soldiers-killed-Taliban-mix-rules-engagement.html

Some of the inquests have revealed absolutely appaling situations where serious shortcomings with equipment or procedures were known of and yet nothing was done until personnel were killed.

[ASL Veteran]

Er... but that's true under US law as well. You can basically sue anybody for any reason at any time.

Except for the US government which has immunity unless otherwise specified.

In the military today a member of the military who is suspected of having caused a death through negligence is brought up on a Article 32 proceeding, which is under the UCMJ because the military has initial jurisdiction. Through that the individual may, or may not, be charged with a particular offensive. If he/she is, then they go through the court marshal procedures. If found guilty of charges, the individual may be punished in a number of ways, including death.

No argument here on that one.

My point is that gross negligence of command is definitely covered under this. Therefore, if an officer allowed someone under him/her to die or serious injured OUTSIDE of normal risks, then the charges are brought and things go on from there. Look back at my link to the 1994 downing of the Blackhawks for examples of this. The military also paid compensation to the victims' families, including non-US nationals. Since suing the military is a vastly expensive, and likely fruitless, endeavor... I'd bet the families took the compensation and did not pursue civil actions (which likely would have failed because there was no civil jurisdiction in the case).

Exactly. No civil jurisdiction. Essentially you seem to be equating Article 32 with civil litigation. I don't. I consider civil litigation to be an escalation by orders of magnitude over Article 32. I guess the only disagreement between us then is that you find them to be more or less equivalent from what I can tell. I don't.

Which gets us back to the primary point... does the UK ruling really do anything that isn't already a part of British law? I don't know because I don't know squat about the UK legal system. But I do have a pretty good sense of how things work in the US and find that such accountability already exists here and yet we still have a military in the field conducting combat ops without families suing or the military punishing commanders left right and center for deaths under their watch.

Steve

True enough. Your last sentence sums up my feelings on the topic exactly. I would go even further and say that the reason the US has a military that can work in the field and conduct combat ops is that families can't pursue civil action due to government immunity. I was under the impression that the UK military would be adversely affected through the ruling, but maybe the differences between how things work in the UK and how they work in the US makes the ruling largely irrelevant. I guarantee you Steve, that if that ruling was made in the US all heck would be breaking out. Dogs and cats living in sin. hellfire and brimstone falling from the sky. It would be a disaster.

[ASL Veteran]

See, this is where it gets interesting.

Every British serviceman/woman who dies has an inquest held into their death in the UK, including those who are killed in action. The MoD doesn't the inquest, it's up to the coroner (which until recently was the local coroner for RAF Brize Norton, where all our war dead are flown back to).

Solicitors already represent the families of the dead at these inquests, and the coroner can and frequently does rule that the deaths were 'unlawful' (however little that means when a soldier is killed by hostile action).

Examples:

http://news.bbc.co.uk/1/hi/uk/6449227.stm

http://www.dailymail.co.uk/news/article-1035418/Operation-Certain-Death-inquest-hears-British-soldiers-killed-Taliban-mix-rules-engagement.html

Some of the inquests have revealed absolutely appaling situations where serious shortcomings with equipment or procedures were known of and yet nothing was done until personnel were killed.

Now that is interesting. I was operating under the assumption that the system in the UK is similar to how it works in the US but it's obviously quite different. In the US that ruling would be a real shock to the system. It looks like in the UK that ruling is just another nudge in a direction the UK was already headed. My apologies for any "the sky is falling" running about on the issue. I think I'll retire until a real lawyer can come in here and clear things up

[Bigduke6]

Yes, but what if the inquest shows negiligence or, more generally, a violation by British command of a soldier's "right to life"? What recourse is there?

As I read the "right to life" law, the point is that if the MOD gets a soldier killed and negligence (by whom I'll deal with in a minute) is a viable reason, some one - normally the dead soldier's relatives - will be able to initiate a suit against the MOD, and if they win, the MOD is responsible. Not Private Parts' commander, not the intell puke that said that road was clear of bombs, not the contractor that sold faulty bomb detection equipment. The law makes the responsible party in such cases clear: The MOD employed the soldier, the organization like any other employer has a legal obligation not to throw the soldier's life away, and if they do they carry responsibility and if a court sees negligence, they at minumum have to pay up.

What is no longer the case is, that only the military is policing itself, i.e, hunting down a guilty person and drumming him/her out or whatever. The initiative is in the citizen's if he chooses to exercise it. (well, his relatives - although if we went down this road any distance at all of course you could have public action committees and NGOs getting into the act, and suing the military on some one's behalf.)

I am of two minds about how worthwhile this sort of policy would be. On the one hand, of course, you could have a deadening fear of legal repercussions penetrating the MOD's entire command pyramid, threating to turn each and every one of them into a spineless cog unwilling to make any decisions on his own, except the absolute safest ones.

The counter to that is, obviously, there are plenty who say that is a fair description of the MOD right now, they're already geared to CYA as the top priority, so why not force them to answer for the people they've screwed?

Which is the other hand, like Yair says just about the only way to get a big organization to behave more rationally is to hit it in the money. Otherwise it is just cheaper for the organization to talk and delay and point fingers elsewhere and play the bureaucratic shuffle, rather than change on its own.

The counter to that is of course that militaries sometimes do reform on their own, a case that springs to mind in the British army would be the government buying back officer commissions from the officer corps in the latter half of the 19th century, so promotion could be decided by the military bureacracy, and not individual officiers selling their billets to the highest bidder.

In the case of the current British deployments to hot places inhabited by well-armed Muslims, my instict is that the legalities are a moot point. I think what is going on here is that the legislative branch representing as it is the will of the masses has twigged that it had better be on the anti-war/pro-troops (whatever that means) side of the present wars.

The "right to life" law serves that purpose brilliantly, the legislators are at once on the soldiers' side, pressuring the MOD to quit fighting in places the majority of voters doesn't want their soldiers fighting, while at the same time remaining by any definition patriotic.

This is of course a natural outcome when you go into wars where war goals and victory terms are murky and not agreed upon with the populace ahead of time.

The natural result will be, I would think, more wrangling and an eventual government step backward from greater overseas commitment, as the alternative will not only cost them money but open a huge can of worms - once the voters get the right to sue the Army for negligence, where would it stop? What if the Health Ministry fails to treat a heart patient quickly enough? Etc.

It is I think no surprise at all that the real winners here are the same people who wrote the law - the lawyers.

But before I dump on them too much, let's just remember, the alternative to a society run by lawyers' interpetations of law, is one run by police or bandits or something. Lawyers are fun to make fun of, but let's not forget the alternative.

[Guinnessman]

Yes, but what if the inquest shows negiligence or, more generally, a violation by British command of a soldier's "right to life"? What recourse is there?

Get's a bit complicated there. Not being the biggest expert on English law (which can differ quite substantially from Scots law), IIRC the inquest can return a couple of verdicts. Lawful killing is unlikely in the context we're talking about. Unlawful can cover anything and everything from a soldier shot dead by the oppposition in a stand-up gunfight, to an IED, to a friendly-fire incident. Accidental death explains itself. Thing is, although the inquest can return a verdict of x, and it can point out various shortcomings in equipment, training etc up until now the MoD isn't actually obliged to act on anything the inquest says. So if a soldier is blown up in a Snatch land rover and the inquest rules that he was unlawfully killed and finds that the use of land rovers in that particular area of operations is bloody stupid, the MoD up until now could just say, well, that's what you think, but hey, we're calling the shots (literally) and we're going to keep giving the troops in that area land rovers, so there.

As I read the "right to life" law, the point is that if the MOD gets a soldier killed and negligence (by whom I'll deal with in a minute) is a viable reason, some one - normally the dead soldier's relatives - will be able to initiate a suit against the MOD, and if they win, the MOD is responsible.

Just to clarify - the 'right to life' and the 'duty of care' parts of the HRA/ECHR are two different beasts. An inquest can find that a soldier is unlawfully killed - has his right to life breached - but it doesn't necessarily follow that the duty of care section has been contravened. But yeah, aside from my nit-picking, you are essentially correct

Not Private Parts' commander, not the intell puke that said that road was clear of bombs, not the contractor that sold faulty bomb detection equipment. The law makes the responsible party in such cases clear: The MOD employed the soldier, the organization like any other employer has a legal obligation not to throw the soldier's life away, and if they do they carry responsibility and if a court sees negligence, they at minumum have to pay up.

That's how I read it - it would be seen as an organisational failure and not a failure on the part of the soldiers' commander. Again, as far as I understand it, even in a case of criminal negligence on the part of a commanding officer, the MoD would be responsible as an organisation for that failure, although in such an extreme case no doubt criminal proceedings would be taken against the relevant person.

The counter to that is, obviously, there are plenty who say that is a fair description of the MOD right now, they're already geared to CYA as the top priority, so why not force them to answer for the people they've screwed?

You took the words right out of my mouth......

In the case of the current British deployments to hot places inhabited by well-armed Muslims, my instict is that the legalities are a moot point. I think what is going on here is that the legislative branch representing as it is the will of the masses has twigged that it had better be on the anti-war/pro-troops (whatever that means) side of the present wars.

I'm not 100% sure if I share your opinion there. If I were to sum up the attitude of the general public regarding our ongoing engagements, apathy would probably be the best word. Most folks just don't seem to have an opinion one way or the other. However there has been an awful lot of anti-MoD publicity ever since the Iraq war, because of the various equipment, logistical and support SNAFUs that have been highlighted since it all started.

I think that's due to a combination of a few factors, biggest would probably be the small size of our military establishment and the fact that as a result of Operation Banner in Northern Ireland the UK has a sort of a cultural 'tolerance' (if that's the right word) of drawn-out operations with a steady trickle of casualties.

when you go into wars where war goals and victory terms are murky and not agreed upon with the populace ahead of time.

Or indeed, not agreed upon with anyone......

The natural result will be, I would think, more wrangling and an eventual government step backward from greater overseas commitment, as the alternative will not only cost them money but open a huge can of worms - once the voters get the right to sue the Army for negligence, where would it stop? What if the Health Ministry fails to treat a heart patient quickly enough? Etc.

People sue the NHS all the time

It is I think no surprise at all that the real winners here are the same people who wrote the law - the lawyers.

Isn't that always the case!

But before I dump on them too much, let's just remember, the alternative to a society run by lawyers' interpetations of law, is one run by police or bandits or something. Lawyers are fun to make fun of, but let's not forget the alternative.

'Police or bandits'?! I resemble that remark

[Jinef]

Civilian laws, standards and values applied to warzones is always an interesting subject. In the medical world a fairly similar concept of 'clinical governance' has come about. The UK forces have been training their own medical personell for years and expected them to perform clinical intervententions in order to preserve life. Over the last few years there has been a strong move towards professionalism within the pre-hospital healthcare setting within the UK and there is legislation behind it. So now, a top class medic who has been trained by the army has no remit whatsoever to perform any interventions anywhere due to the fact that there is no system of clinical governance, where his/her abilities are audited and regulated by an external mediator.

So in short, an army medic needs civilian recognition / regulation in order to perform any lifesaving interventions on his colleagues at home or abroad. Now personally, when considering slapping on a torniquet or establishing an airway 40 seconds after an IED has detonated in a faraway place I feel the last thing medics should be considering is whether they are allowed to.

It does get more bizarre however, because clinical governance is in essence about ensuring that medical staff provide the best care using evidence based practice. It is now applied to a warzone where this is not entirely realistic. For example, i'm sure you've all seen coalition forces treating civilian casualties. You've perhaps seen Army doctors treating children who have suffered trauma or perhaps just minor illness. According to the concept of clinical governance they should be treated by a paediatrician, or at least have a paediatrician consult at hand. The Army's response would be "Well actually 100% of our employees are adults, thus we have no paediatricians ...". This leaves a giant hole where litigation and sactimonious beaurocrats can get involved.

Most of this has been resolved now as it was a larger issue 5 years ago when it was starting to be implemented, however it highlights nicely the absurdity of it all. I feel it is part of the larger movement towards an unneccessarily litigious and over-accomodating society. People are starting to phase out the idea of 'accidental' and 'forgive and forget' and replace them with 'liable' and 'compensation'. I abhore it.

[JonS]

... So now, a top class medic who has been trained by the army has no remit whatsoever to perform any interventions anywhere due to the fact that there is no system of clinical governance, where his/her abilities are audited and regulated by an external mediator.

...

Most of this has been resolved now as it was a larger issue 5 years ago when it was starting to be implemented, however it highlights nicely the absurdity of it all. ...

Top class airforce pilots don't automagically get a civil pilots licence.

Top class army shots don't automagically get a firearms licence.

Top class medics don't automagically get a civil medical qualification.

Discuss.

[Jinef]

"Top class airforce pilots don't automagically get a civil pilots licence."

Not automatically, however they can undergo a conversion course to get a CPL and depending on their branch may have enough hours to start off with an unfrozen ATPL.

"Top class army shots don't automagically get a firearms licence."

True, although a firearms license is very different from another job that requires the use of firearms, such as an armed police officer. The experience does count there.

"Top class medics don't automagically get a civil medical qualification."

I didn't say they should, however because they don't have civil recognition does that mean that they are not allowed to do their job within the military too? That was the point.

An example - you work in a company and that company has training to allow you to work with a certain machine, and you are happily working away. Then one day your company's qualification means nothing and your experience of working with that machine also means nothing - you don't have a job anymore. Fun.

I like 'automagically' by the way.

[Combatintman]

Like everything in life - there is need for balance. The issue of responsibility and culpability which has been driven by civilian legislation has in many ways been very beneficial. When I compare my deployment to Gulf War 1 (what the US calls Operation Desert Storm) it was a case of - you'll get your kit in theatre ... good luck. Move on to Afgnanistan - there were a number of mandated training events and that was a couple of years ago - there are more now. While the 'you'll get your kit in theatre' line still rules the roost in the supply chain, the situation is radically different. So, such interventions have been culturally significant and quite frankly the right thing to do. However, there is a danger of this going too far and this is the territory that, in my opinion, we are close to entering. I hope it doesn't get out of hand.

[Battlefront.com]

So Combatintman, the question on everybody's lips is... did you get your Gulf War 1 kit in time for Afghanistan?

Steve