Britain's retired military top brass today warned the Government that the Armed Forces’ morale was being undermined by the increasing numbers of soldiers being prosecuted for their actions while on duty.
Six former chiefs of defence staff used a House of Lords debate to warn that the war-fighting ability of the forces could be impaired because of fears of being taken to court. They said that troops were being judged by people schooled in "political correctness", without any experience of the life-and-death decisions they faced on the battlefield.
Ministers replied that the overall numbers of soldiers being prosecuted were still relatively small. Of the 176 investigations that had taken place since the start of the Iraq war, 151 had been closed without any further action. They insisted that it was "unthinkable" that any British soldiers could face prosecution outside British jurisdiction, at the International Criminal Court.
There was however particular anger about the case of Trooper Kevin Williams who faced a murder charge at the Old Bailey over the killing of an Iraqi civilian following a Scotland Yard investigation requested by the Attorney General. The case had originally be dismissed by his commanding officer, which meant that the could not be tried by a military court martial.
Although the charges were eventually dropped, Admiral Lord Boyce, the chief of defence staff at the time of the invasion of Iraq, said the case "does not fill me with any confidence" regarding the Government’s support for the forces.
"Our armed forces are under legal siege and are being pushed in the direction in which an order could be seen as improper or legally unsound," he said. "They are being pushed by people not schooled in operations but only in political correctness.
"They are being pushed to a time when they will fail in an operation because the commanding officer’s authority and his command chain have been compromised by tortuous rules not relevant to fighting and where his instinct to be daring and innovative has been buried under the threat of liabilities and hounded out by those who have no concept of what is required to fight and win."
His immediate predecessor, General the Lord Guthrie of Craigiebank, said that there was a failure to understand the demands placed on young soldiers on operations like those in Iraq and Afghanistan.
"Undeniable damage to the Army’s trust in the chain of command has occurred and it could have been minimised. The risk of morale suffering further is real. Many people, rightly or wrongly, think the system is unjust," he said.
"Some investigations into service personnel’s conduct is necessary but many I suspect have more to do with political correctness - the culture of ‘somebody must be blamed."’
He also attacked civilian solicitors from the UK who were "touting for business on the streets of Basra".
Field Marshall Lord Bramall said that in the volatile situations in Iraq, where a peaceful civilian scene could turn into a war zone within seconds, soldiers had to be able to take instant decisions on whether to open fire to defend themselves or their comrades.
"This is a judgment which can only be taken on the spot by soldiers relying on their own professional judgment and sometimes the innate decency of the British soldier," he said.
"And it should only be reviewed, justified, condemned if further investigation becomes necessary, by those familiar with similar situations and aware of the environment and pressures prevailing at the time, able to make a judgment on whether the soldier has acted in good faith and therefore deserving of the benefit of any doubt there may be."
He insisted that he was not arguing that the military should be above the law, but said that they were facing "interference" from "those influenced by political pressures and adverse publicity".
Field Marshal the Lord Inge said that he would "dread the day" when a member of the British armed forces was brought before the International Criminal Court (ICC). But the defence minister Lord Drayson said that it was "unthinkable" that any member of the British forces would be tried before the ICC.
"The International Criminal Court’s jurisdiction is based on the principle that it can only exercise its jurisdiction when a State is itself unable and unwilling to investigate or prosecute," he said. "Surely we do not envisage that the United Kingdom will ever be in that position."
He said that the MoD was fully committed to maintaining a separate system of Service Law through the Armed Forces Bill to be introduced later this year. "We are absolutely clear about the essential nature of a commanding officer to exercise discipline in respect of those under his command, but the system must be fair, efficient and compliant with the European Convention," he said.
He acknowledged however that "lessons have been learned" from the case of Trooper Williams and the "great burden of uncertainty" that he had had to endure before the charges were finally dropped.
"I believe passionately that if a soldier on operational service has broken the law, he should be tried by his own nation and not be subjected to the humiliation of going to the ICC," he said. "It would be disastrous if our soldiers lose faith in the chain of command. There is a danger that they may hesitate to use lethal force for fear of prosecution, and their lives may be needlessly lost."
Marshal of the Royal Air Force Lord Craig of Radley and Field Marshal Lord Vincent of Coleshill also spoke of their concerns.
