The soldier, human rights and the military covenant: a permissible state of exception?

Abstract

In the light of the coalition government's plans to enshrine the tenets of the military covenant in law this article addresses the issue of the human rights of soldiers in the British Armed Forces. Over the last decade an increasing number of active and ex-service personnel, alongside families of soldiers killed in Afghanistan and Iraq, have sought legal redress with recourse to human rights legislation. Drawing upon a qualitative study involving veterans of the Iraq conflict, we present experiential accounts of structural and institutional deficiencies which indicate that the British state has placed military personnel at unnecessary risk and violated the military covenant. In conclusion, we argue that continuing to cast soldiers as ‘exceptional actors’ under the auspices of the covenant serves to conceal institutional negligence and compromises their fundamental human rights.

Keywords:

• British soldiers
• Iraq
• human rights
• military covenant
• state of exception

Notes

Tom Wengraf, Qualitative Research Interviewing (London: SAGE, 2001). According to Wengraf, the basic structure of the BNIM interview consists of three subsessions over two interviews: the first subsession consists of single Structured Question aimed at Inducing Narrative (SQUIN) designed to request either an entire or partial auto/biography of a participant; the second subsession is conducted after a short recess of at least 15 minutes where Theory Questions aimed at Inducing Narrative (TQUINs) are asked based on the topics raised during the first subsession; a third subsession within a second interview takes place following an analysis of the data produced to ask further narrative questions based on the information provided within the first two subsessions, and more research specific questions (Theory Questions [TQs]). The research conducted in this paper used a truncation of this method hosting two interviews and employing a SQUIN in subsession one and TQUINs in subsession two.

Jonathan A. Smith and Mike Osborn, ‘Interpretive Phenomenological Analysis’, in Qualitative Psychology: A Practical Guide to Research Methods, ed. Jonathan A. Smith (London: SAGE, 2003), 51–80. It is important to note that IPA itself is in no way a prescriptive measure and as Smith and Osborn note is generated by the trial-and-error of the researcher finding the most effective way of applying IPA to qualitative data. In brief, the process requires several detailed readings of interview transcripts with a view to generate superordinate themes and sub-themes inductively through coding excerpts of data qualitatively; a more detailed explanation of this process can be found in Evanthia Lyons and Adrian Coyle, eds., Analysing Qualitative Data in Psychology (London: SAGE, 2007). The themes and data presented in this paper have been generated in response to general questions based on participants experiences of serving in conflict (particularly Iraq), and more specific questions on the adequacy of kit, equipment and training provided during their deployments.

See Giuseppe Caforio, ed., Handbook of the Sociology of the Military (New York: Kluwer, 2003).

See Rachel Woodward, Trish Winter, and Neil Jenkings, ‘Heroic Anxieties: The Figure of the British Soldier in Contemporary Print Media’, Journal of War and Culture Studies 2, no. 2 (2009): 211–23. Also see Anthony King, ‘The Afghan War and “Postmodern” Memory: Commemoration and the Dead of Helmand’, British Journal of Sociology 61, no. 1 (2010): 1–25.

Christian Enemark and Christopher Michaelsen, ‘Just War Doctrine and the Invasion of Iraq’, Australian Journal of Politics and History 51, no. 4 (2005): 545–63.

Roland S. Kramer and Ray J. Michalowski, ‘War, Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq’, British Journal of Criminology 45, no. 4 (2005): 446–69.

Mark S. Hamm, ‘High Crimes and Misdemeanors: George W. Bush and the Sins of Abu Ghraib’, Crime Media Culture 3, no. 3 (2007): 259–84.

Sandra Walklate and Gabe Mythen, ‘Terrorism, Risk and International Security: The Perils of Asking What if?’, Security Dialogue, Special Edition on Risk, Security and Technologies of the Political, 39, no. 2/3 (2008): 221–42.

Mark Ringstad, ‘Jus ad bellum after 9/11: A State of the Art Report’, The International Theory Beacon 3 (2007): 1–30.

Patricia Hynes et al., ‘Introduction: Sociology and Human Rights: Confrontations, Evasions and New Engagements’, International Journal of Human Rights 14, no. 6 (2010): 810–30.

Damien Short, ‘Sociological and Anthropological Approaches’, in Human Rights Politics and Practice, ed. Michael Goodhart (Oxford: Oxford University Press, 2009), 93.

Bryan S. Turner, ‘Outline of a Theory of Human Rights’, Sociology 27, no. 3 (1993): 489–512.

Henceforth ‘the covenant’.

See Ministry of Defence, Army Doctrine Publication Vol. 5: Soldiering – The Military Covenant (London: Directorate General of Development and Doctrine, 2000).

Helen McCartney, ‘The Military Covenant and the Civil–Military Contract in Britain’, International Affairs 86, no. 2 (2010): 411–28.

Including: the Ministry of Defence, the chains of command from all arms of the British military, the UK parliament and the British public.

Ministry of Defence, Army Doctrine Publication: Land Operations (London: Directorate General of Development and Doctrine, 2005), 143.

Ibid., 148, para. 0721.

Ibid., 146, para. 0713.

Ministry of Defence, Army Doctrine Publication: Operations (Swindon: Development, Concepts and Doctrine Centre, 2010), 2-15, para. 0230, http://www.mod.uk/NR/rdonlyres/41903E11-B6F4-4351-853B-2C1C2839FE1B/0/ADPOperationsDec10.pdf (accessed July 17, 2011).

Ibid., 2-26, para. 0240.

Ibid., 1-3, para. 0106.

Christianne Tipping, ‘Understanding the Military Covenant’, RUSI 153, no, 3 (2008): 12–15.

Ministry of Defence, Army Doctrine Publication: Operations, 2-15, para. 0230.

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1995). Also Giorgio Agamben, State of Exception (Chicago, IL: University of Chicago Press, 2005).

Agamben, State of Exception.

Agamben, Homo Sacer, 169.

Ringstad, ‘Jus ad bellum after 9/11’.

See Office of Public Sector Information, Human Rights Act 1998, http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1#Legislation-Preamble (accessed July 17, 2011).

Council of Europe, European Convention on Human Rights: Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13 (Strasbourg: European Court of Human Rights, 1950), 4, sec. I, art. 2, http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf (accessed July 17, 2011).

Gerhard Kümmel, ‘A Soldier is a Soldier is a Soldier!? The Military and its Soldiers in an Era of Globalization’, in Handbook of the Sociology of the Military, ed. Giuseppe Caforio (New York: Springer, 2003), 418.

Cited in Paul Rock, Constructing Victims Rights (Oxford: Oxford University Press, 2004), 227.

Queen's Royal Lancers, C Squadron.

BBC News, ‘UK Military Deaths in Afghanistan and Iraq – Full List: Iraq’, http://www.bbc.co.uk/news/uk-10637526.

Ibid.

Royal Highland Fusiliers, 1^st Battalion.

BBC News, ‘UK Military Deaths’.

Private Hewett died in Iraq during 2005 when the Snatch Land Rover he was travelling in hit a roadside bomb (see BBC News, ‘UK Military Deaths’). Little over a year later Sergeant Knight died in Afghanistan during 2006 when the Nimrod aircraft he was flying in crashed in non-hostile conditions (see ibid.). The families of both men are suing the MoD on claims that the Snatch Land Rover and Nimrod aircraft unnecessarily put their son's lives at risk due to being inadequately suited to the conflicts they were being used for (see Thomas Harding, ‘Mother of Soldier Killed in Snatch Land Rover while Serving in Iraq sues MoD’, The Telegraph, http://www.telegraph.co.uk/news/newstopics/onthefrontline/2580168/Mother-of-soldier-killed-in-Snatch-Land-Rover-while-serving-in-Iraq-sues-MoD.html2008. Also Aislinn Simpson, ‘Families Bereaved in Afghanistan Nimrod Explosion Sue MoD’, The Telegraph, August 31, 2008, http://www.telegraph.co.uk/news/newstopics/onthefrontline/2656161/Families-bereaved-in-Afghanistan-Nimrod-explosion-sue-MoD.html

Stephanie Palmer, ‘Military Intervention, Public Inquiries and the Right to Life’, The Cambridge Law Journal 68, no. 1 (2009): 17–20.

Ibid.

BBC News, ‘UK Military Deaths’.

Sir Anthony Clarke, Judgment Approved by the Court for Handing Down. R (Smith) v Secretary of State for Defence (London: Royal Courts of Justice, 2009), http://www.judiciary.gov.uk/media/judgments/2009/defence-catherine-smith-others (accessed July 17, 2011).

Rachel Woodward and Neil Jenkings, ‘Military Identities in the Situated Accounts of British Military Personnel’, Sociology 45, no. 2 (2011): 252–68.

Patrick Mileham, ‘Unlimited Liability and the Military Covenant’, Journal of Military Ethics 9, no. 1 (2010): 23–40.

Tipping, ‘Understanding the Military Covenant’.

Ministry of Defence, Army Doctrine Publication: Operations, 2-26, para. 0240.

Sir Jock Stirrup, Air Chief Marshal Sir Jock Stirrup Transcript, http://www.iraqinquiry.org.uk/media/45320/20100201am-stirrup-final.pdf (accessed July 17, 2011).

Including dissatisfied (32%) and very dissatisfied (20%) (Ministry of Defence, ‘Armed Forces Continuous Attitudes Survey’, 14, table 49).

Ministry of Defence, Armed Forces Continuous Attitudes Survey 2007: Results (London: Ministry of Defence, 2008), http://www.dasa.mod.uk/applications/newWeb/www/index.php?page=67&pubType=0&thiscontent=700&date=2011-03-31 (accessed July 17, 2011), 14.

Stirrup, Jock Stirrup Transcript, 13–14.

Mark Nicol, Last Round: The Red Caps, the Paras and the Battle of Majar (London: Cassell Military Paperbacks, 2005), 65.

Ian Herbert, ‘Coroner in Blistering Attack on Ministers at Inquest’, The Independent, December 2006, 2.

Cited in ibid.

Cited in Richard Holmes, Dusty Warriors (London: Harper Perennial, 2006), 243.

Ibid.

Royal Gurkha Rifles.

Graham Tibbetts, ‘Prince's Instructor Killed after Convoy Lost Communication’, The Daily Telegraph, July 2008, 13.

Ibid.

Ross McGarry and Sandra Walklate, ‘The Soldier as Victim: Peering Through the Looking Glass’, British Journal of Criminology 51, no. 6 (2011): 900–17.

Claire Garbett, ‘The Legal Representation of the Civilian and Military Casualties of Contemporary Conflicts: Unlawful Victimisation, its Victims and Their Viability at the ICTY’, The International Journal of Human Rights, iFirst article, (2012): 1–19.

Including Admiral Lord Boyce, General Lord Guthrie, Marshall of the RAF Lord Craig of Radley, Field Marshall Lord Bramall and Lord Astor of Hever.

Thomas Harding and Sophie Borland, ‘Five Ex-Defence Chiefs say Brown has Failed Forces’, The Daily Telegraph, November 2007, 8.

Tipping, ‘Understanding the Military Covenant’.

See Lord Phillips, JUDGMENT: R (On The Application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and Another (London: Supreme Courts of Justice, 2010), http://www.supremecourt.gov.uk/docs/uksc_2009_0103_judgment_v2.pdf (accessed July 17, 2011).

See Glynis Craig, ‘Public / Human Rights: In the Line of Fire’, The New Law Journal 159, no. 7374 (2009): 1–3. Also see Claire Taylor, ‘Afghanistan: Equipment Issues’ (London: House of Commons Library, 2009), http://www.parliament.uk/briefing-papers/SN05128 (accessed July 17, 2011).

See Military Covenant Commission, ‘Restoring the Covenant: The Military Covenant Commission's Report to the Leader of the Conservative Party’, 2008, http://militarycovenantcommission.wordpress.com/documents/ (accessed July 17, 2011).

David Cameron cited in David Batty, ‘Military Covenant To Be Made Law’, The Guardian, May 14, 2011, http://www.guardian.co.uk/uk/2011/may/14/military-covenant-made-law (accessed July 17, 2011).

Ministry of Defence, The Armed Forces Covenant (London: Ministry of Defence, 2011), 7–8, para. 6, http://www.mod.uk/NR/rdonlyres/4E9E2014-5CE6-43F2-AE28-B6C5FA90B68F/0/Armed_Forces_Covenant.pdf (accessed July 17, 2011).

The Stationary Office, Armed Forces Act 2011 (London: The Stationary Office, 2011), 2, sec. 2, part, 16A, para. 2, http://www.legislation.gov.uk/ukpga/2011/18/pdfs/ukpga_20110018_en.pdf (accessed July 17, 2011).

Tom Whitehead, ‘British Troops in Iraq had a Duty Under Human Rights Laws, European Court Rules’, The Daily Telegraph, July 7, 2011, http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/8623175/British-troops-in-Iraq-had-a-duty-under-human-rights-laws-European-court-rules.html (accessed July 17, 2011).

David C. Cochran, ‘Complicating Military Intervention's Moral Case’, Peace Review 8, no. 4 (1996): 503.

BBC News, ‘Michael Pritchard Inquest: Soldier Accidentally Shot’, http://www.bbc.co.uk/news/uk-england-18159894.

Ibid.

Malcolm Chalmers, ‘Preparing for the Lean Years’, Future Defence Review: RUSI, working paper number 1 (2009), http://www.rusi.org/downloads/assets/FDR_Working_Paper_1.pdf (accessed July 17, 2011).

Bill Kincaid, Changing the Dinosaur's Spots: The Battle to Reform UK Defence Acquisition (London: RUSI, 2008), 388.

Gresham M. Sykes and David Matza, ‘Techniques of Neutralization: A Theory of Delinquency’, American Sociological Review 22, no. 6 (1957): 664–70.

Ibid.

Ibid.

Stanley Cohen, ‘Human Rights and Crimes of the State: The Culture of Denial’, in Criminological Perspectives: Essential Readings, eds. Eugene McLaughlin, John Muncie, and Gordon Hughes (London: SAGE, 2003).

See Lydia Morris, Rights: Sociological Perspectives (Abingdon: Routledge, 2006), 11. Also see Short, ‘Sociological and Anthropological Approaches’, 96.

See also Short, ‘Sociological and Anthropological Approaches’.

Patricia Hynes et al., ‘Sociology and Human Rights: Confrontations, Evasions and New Engagements’, The International Journal of Human Rights 14, no. 6 (2010): 811–32.

Woodward and Jenkings, ‘Military Identities’.