Unlimited Liability and the Military Covenant

Abstract

The modernization of military doctrine writing in the United Kingdom since 1989 came up with many new definitions of the nature of fighting power and military effectiveness, broadly dividing them into the physical, conceptual and moral ‘components’ or dynamics. Devising comprehensive and comprehensible doctrine for the moral component has proved the most difficult and consequently the official publications have been few in number. Normative military ethics has been expressed as values and standards within the utilitarian and pragmatic tradition. The nature of military risk was described in 2000 as unlimited liability, an analogical phrase coined by General Sir John Hackett in 1983. Fairness in the treatment of individuals by the Army as an institution, the Ministry of Defence and the civil population generally, was given the title military covenant. It was devised to indicate service in armed forces at best as a vocation within a ‘moral community’, the covenant being conceived in the Abrahamic tradition. There have been difficulties in sustaining the arguments about the unlimited nature of liability for volunteer servicemen and women in wars of national choice, rather than national survival. The chief difficulties are those of language and law. The military covenant has been diminished by over-use and politicization. The nature of risk and fairness needs further analysis.

Keywords:

• Liability
• risk
• fairness
• trust
• institutional ethics/operational ethics
• fiduciary
• self sacrifice
• surrendering rights
• covenant
• contract

Notes

1. The noun ‘soldier’, the verb ‘to soldier’ and gerund ‘soldiering’ are generic and indeed complementary in British usage, covering both commissioned and non-commissioned persons.

2. A Reserve Forces chaplain, Revd Iain Torrance, later Moderator (Principal) of the General Assembly of the Church of Scotland and President of Princeton Theological Seminary, USA; Major General Sir Sebastian Roberts, a Roman Catholic, later General Officer Commanding London District; and Major General Andrew Ritchie, later Commandant Royal Military Academy Sandhurst, son of a clergymen of the Church of England.

3. ‘Our [combat] soldiers have a reading age of 11 years’ is a comment made to the author in 2006 by the Deputy Adjutant General, Major General Mans (Mileham 2008: 43). Interviewed on 9 February 2009, General Sir David Richards, Commander in Chief Land Command stated that limited time was the chief inhibitor of developing military ethics. Clarity and simplicity were of great importance in written and stated instruction.

4. Application of the Human Rights act 1998 to a soldier Private Jason Smith – derived from the European Convention on Human Rights including, Article 1 ‘Everyone's right to life shall be protected by law’ – who died of heatstroke in Iraq, was challenged in an appeal in the High Court on 18 May 2009 by appellant the Secretary of State for Defence, seeking to overturn a previous judgement in the Oxford Coroners’ Court. In the appeal, the Court ruled that geographical jurisdiction and the application of the ‘right to life’ applied. There is likely to be further appeal by the Ministry of Defence. The consequences of the upholding of ‘duty of care’ by the Ministry of Defence on operations, particularly with hostile enemy lethal engagement fire involved, could have a severe effect on the feasibility operations.

5. When on guard duty in Northern Ireland Private Lee Clegg of the Parachute Regiment, in 1990 was charged, imprisoned but subsequently released on appeal both of murder and unlawful wounding of an Irish civilian (Guardian 2000). Trooper Kevin Williams, of the Royal Tank Regiment, was charged with murder of an Iraqi civilian in 2003 while on check point duty. His case was thrown out during a hearing in the High Court in London (Guardian, 7 April 2005). It is reasonable to state that the law eventually acknowledged their actions, as conforming to ‘good faith’.

6. In discussion with the Board of the Colombian Armed Forces in Bogotá, September 2006, the expression ‘vocación mistica’ was used in the presence of the author. ‘Mistica’ can be comprehended to mean as spiritual and not fully explainable in lay terms, equating perhaps with Clausewitz's description of the trinity of government, military and people as wunderlich (1989).

7. The average length of soldier service in the British Regular Army is nine years overall, but seven years for the infantry. Almost 50 per cent of young officers, commissioned at the average age of 23 years 9 months at the Royal Military Academy Sandhurst (the only method of entry), will have left by their 33rd birthday (nine years) and many more by the time they qualify for pensionable service at 38.