ESTABLISHED 1828 A legal minefield The guilty plea of the former human rights lawyer Phil Shiner this week to charges of fraud is a story that deserves considerable attention. Shiner had tried to claim £200,000 in legal aid without disclosing that – in the breach of the rules – he had employed an agent to cold-call potential ‘victims’ of mistreatment at the hands of British service personnel in Iraq. An inquiry held by the UK government in 2014 found that the allegations of abuse or violence which Shiner brought forward had little basis in fact: one fighter who was said to have been killed in custody by a British soldier was established to have died in battle, never captured alive. Yet the conclusion of the long case against Shiner – who was struck off as a solicitor seven years ago after his actions came to light – does little to solve an underlying problem: that laws established for civilian life are being inappropriately applied in war zones. Soldiers should not, of course, murder captives in cold blood, nor torture or mistreat them. Where these crimes are committed, the perpetrators deserve to be punished. At the same time, armed forces operating in a war zone cannot be expected to observe the niceties afforded to citizens in peacetime. For many years, enemy combatants were considered to be protected by international humanitarian law, derived from the Geneva Convention, which sought to minimise human suffering without compromising the ability of a nation to use lethal force to defend itself and others against aggression. International humanitarian law demands, for example, that captives are fed, clothed and protected against acts of vengeance. Yet it also accepts that war involves violence and killing. In such an environment, the right to life – not to mention the right to a fair trial, to work, freedom of association and collective bargaining and so on – has little relevance. But in recent years there have been growing attempts to apply full human rights law to wartime situations. Following the Iraq war, lawyers such as Shiner saw the opportunities presented by an unpopular conflict and seized their moment. Warfare has in effect been opened up to the no win, no fee culture which had already taken hold in civilian life. UK soldiers facing daily snipers, booby traps and suicide bombs in what had become a vipers’ nest of guerilla warfare suddenly found themselves treated as if they were police officers handling suspects in a London police station. The role of legal aid in this shift was instrumental. UK citizens even of modest means find it hard to obtain legal aid, since the rules demand that they dip into their When the bullets are flying in a war zone, concepts of civilian law are suspended savings before calling on the taxpayer. Yet when it came to Iraq, copious sums of legal aid were offered to foreign nationals to take cases out against British service personnel. Those claiming to have been maltreated risked almost nothing: win, and they would earn a large payout from the UK taxpayer; lose, and their legal bills would also be met by British taxpayers. This produced a fundamental asymmetry, since British soldiers had little or no recourse to claim compensation from the guerillas and militias who had attacked them in combat. The Conservative leadership candidate Robert Jenrick has touched on the issue of human rights in wartime. He claims that British special forces are killing terrorists rather than taking them captive, for fear they would end up having to be released under human rights laws. This, in Jenrick’s eyes, 5 2024 . . . adds to the argument that Britain should leave the jurisdiction of the European Court of Human Rights. Jenrick has been criticised for his comments by, among others, his leadership rival Tom Tugendhat, and has so far been unable to present evidence for his claims. But if former ministers are arguing over such a point, it rather shows up the legal muddle when it comes to war zones. To fight effectively, our armed forces deserve to know the rules under which they are operating. There should be no doubt, either, as to which authority they are answerable if they should break those rules. We have court martials for a reason: to separate military justice from civilian courts, in recognition that different rules ought to apply. Such a distinction is absolutely necessary for the functioning of military forces – we can’t have soldiers having to assert their right to self-defence every time they shoot an enemy combatant when they are just doing their job. That is not to say that an off-duty soldier who starts a fight in a pub should be excused from civilian justice, but it does mean that when the bullets are flying in a war zone, concepts of civilian law are suspended. There should be no legal aid, and no human rights lawyers touting for business. The incorporation of the European Convention on Human Rights into UK law has introduced all kinds of grey areas, as its critics warned it would. We no longer have clearly written laws so much as general principles that must be balanced against each other. The uncertainties have helped to transfer power from our elected politicians to judges. That is a serious enough problem in everyday civilian matters. But when it comes to the people defending our country’s interests with their lives, it is vital that they know where they stand – and that the real army is not undermined by a metaphorical army of ambulance-chasing lawyers. 3