Legal action against individuals in the Armed Forces

This thread is in relation to THIS ARTICLE from The Telegraph about members of the armed forces being taken to court over their actions. I suggest reading the article before making any comments (it's not that long).

Whether you agree or disagree with what the military are generally involved in, I think it is a reasonable question to ask whether sometimes individual members should be responsible for events they participate in.

As the article shows, sometimes litigation is going to be a barrel of lies by someone who sees an opportunity, but if something happens (I'll use the example of some of the events in Northern Ireland), shouldn't individuals be held to account? Agree? Disagree? The UK government seems to believe so because there's no crown immunity anymore, but the author of the article doesn't.

I know we have a lot of military on this forum so I am interested in hearing views from everyone..

Britain has relied on proxy forces in the recent wars in Iraq, Afghanistan and Libya, just as it did during the Troubles. But if it is to be held responsible for their conduct, which is the essence of Kitson claim, then we could soon find ourselves besieged with lawsuits from aggrieved Afghans, Iraqis and Libyans who claim they are the victims of misdemeanours committed in the name of the British military.

I think this is an especially interesting point. The use of proxy forces by many powerful countries is reaching an all-time high, with the danger of questionable accountability making a lot of people pretty nervous. In my Philosophy class last semester this was a hot topic, as it raises the question: how do you hold accountable by a country's laws governing their military, when that country's military is not actually a part of any action; when all the actions taking place are through third parties. So personally I think that the inquiry itself is good - especially if it leads to a harsher light being cast on various countries' use of proxy forces in an effort to evade direct involvement while still getting involved.

Definitely an interesting question.

I can only speak for what they teach us in the US military but we are all individually held for our actions. We have the Law of Armed Conflict (LOAC) that we each are trained on annually and in that training we are repeatedly reminded that we are not to follow unlawful orders. If we do not abide by LOAC, we will be tried in the military court of law.

Now for civilians to sue individual military members for their actions brings up a little bit of a different topic. There's a very specific set of rules that determine if a person is a lawful target for deadly force (Rules of Engagement (RoE)). Not everyone understands that. Especially when it was their son/daughter/mother/father/wife/husband that died. I want to call out the folks who do not follow LOAC and RoE but by the same token I feel the folks that do follow them should be protected from people lashing out. I understand how people on the outside wouldn't want to trust the same agency they are having grievances with to do the investigation and law work. But taking members to military court is the only way they'll be reviewed by their peers on an action like that.

Leadership also get viewed on their actions. I've seen Commanders get in trouble because of what their people do. At least in current time, if a Commander is negligent and somebody loses their life needlessly or there's a major security breach, they'll get into huge trouble. Such as the incident when nukes were unknowingly loaded onto a B52 and flown across the states.

I don't know how I feel about all. Sir Frank is saying he wasn't even there for that incident in the article. Hopefully there are orders or something to prove that. We are all accountable for our actions. There is no immunity for us. However, if military members are taken to court by civilians for a military action, then they need to be reviewed by peers. Their peers are military. I'm not sure that a civilian would be happy with that though.

the fact that any member of the Armed Forces can be subjected to this type of retrospective action when their only concern was to serve their country to the best of their ability could set a worrying precedent

Well that's a horrifically machiavellian line of argument. I must agree with Kamizu, while I don't know what the British doctrine of engagement is if it was flaunted then parties should be held accountable. Now one can argue retrospective legal action is undue if the laws since such times have changed, in a similar manner to how the Temple does not demote people if the rank requirements change, but this would have to be justified on a case by case basis.

As for the use of proxy armies and such? Well perhaps greater oversight is a wise decision, not least perhaps because it may discourage foreign (and typically forced) intervention in the domestic state affairs of other countries.

Though Kamizu, are civilian courts not able to provide adequate judicial oversight?

Akkarin wrote: Though Kamizu, are civilian courts not able to provide adequate judicial oversight?

The thing is, the civilian laws aren't built for it. We have a separate set of laws and court system to try military members for military crimes. (Uniformed Code of Military Justice (UCMJ)) A civilian judge and lawyers wouldn't know the military laws. You'd be spending more time translating military language into civilian understanding you'd forget what you were there for :laugh:

I don't see a problem with civilians overseeing or attending or otherwise ensuring a fair trial but whoever was going to be in charge of that has a LOT of studying to do!!!

Perhaps the courts need to be a mix of military and civilian. While the military might be their peers by occupation, the military represents the country, which makes all civilians peers (in my opinion).

If civilian lawyers and judges don't know military rules why not teach them? Lawyers have to know property law, family law, common law, criminal law etc, why not also allow them to learn military law? Surely a lack of skill in one area requires the teaching of this skill?

Akkarin wrote: If civilian lawyers and judges don't know military rules why not teach them? Lawyers have to know property law, family law, common law, criminal law etc, why not also allow them to learn military law? Surely a lack of skill in one area requires the teaching of this skill?

Don't most lawyers have specialties though? I know that they learn about all of it but aren't there tax lawyers, real estate lawyers, criminal lawyers, etc? I would assume a specialist in military law would be better than one who wasn't. Like asking a real estate lawyer to defend you in a murder trial.

I think Akkarin was more saying that perhaps they should be allowed to learn, so if there are specialities, you could have civilian lawyers/barristers who specialise in military law.

Goken wrote:

Akkarin wrote: If civilian lawyers and judges don't know military rules why not teach them? Lawyers have to know property law, family law, common law, criminal law etc, why not also allow them to learn military law? Surely a lack of skill in one area requires the teaching of this skill?

Don't most lawyers have specialties though? I know that they learn about all of it but aren't there tax lawyers, real estate lawyers, criminal lawyers, etc? I would assume a specialist in military law would be better than one who wasn't. Like asking a real estate lawyer to defend you in a murder trial.

Yeah that's what I was saying

Kamizu said the military and civilian laws are different, but it must be possible to train lawyers to interpret military law, thus providing the option for civilian courts to try military personnel based on military misdemeanours.

Those in the military will have to forgive me if I'm ignorant of something, but what is the key overriding difference, except perhaps the release of sensitive and classified information, which prevents civilians from being in charge of trials relating to military action?