Shaykh Daoud’s Blog

Armed Forces Act 2006

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First Comment (written on 25 April 2006 and published on Islamisamizdat when it was at Blogspot):

There is an Armed Forces Bill before Parliament that has virtually escaped all attention by the “media”, but, fortunately, not that of Military Families Against the War which has organised a petition and a lobby of MPs. This Bill gives serious cause for concern, and should raise debate on precisely what are Her Majesty’s Armed Forces for. Neither of these seems to be happening in the House of Commons.

This Bill comes in the wake of preposterous and dangerous remarks by Dr John Reid, the Secretary of State for Defence, that the Geneva Conventions 1949 are “out of date” in the days of America’s global war on terrorism.

It also follows the conviction – and sentencing to eight months’ imprisonment – of Flight Lieutenant Dr Malcolm Kendall-Smith RAF for declining to deploy again to Basra in Iraq on the grounds that he refused legitimate commands to do so.

This was without hearing his defence, which was that the War in Iraq is illegal and that therefore there can be no lawful commands to order persons subject to military law to participate for to do so would be to cause them to participate in the commission of a war crime.

To have heard Flt Lt Kendall-Smith’s defence would, of course, have put the legality of the wars in Iraq and Afghanistan on trial.

In the new 264-page long Bill which Dr Reid’s ministry has introduced in the Commons there is the disturbing Section 8 which states:

8 Desertion
(1) A person subject to service law commits an offence if he deserts.
(2) For the purposes of this Act a person deserts if he is absent without leave and—
(a) he intends to remain permanently absent without leave; or
(b) he intends to avoid any particular service or kind of service, and that
service or kind of service is relevant service.
(3) In this section “relevant service” means—
(a) actions or operations against an enemy;
(b) operations outside the British Islands for the protection of life or
property; or
(c) military occupation of a foreign country or territory.
(4) A person guilty of an offence under this section is liable to any punishment
mentioned in the Table in section 163, and any sentence of imprisonment
imposed in respect of the offence—
(a) if subsection (5) applies, may be for life;
(b) otherwise, must not exceed two years.
(5) This subsection applies if—
(a) the offender was on relevant service or under orders for such service
when he became absent without leave; or
(b) subsection (2)(b) applied to him in relation to the offence.

There are three things wrong with the wording of this section.

Firstly, the absence of any proviso that the accused could be presumed innocent.

Compare subsections 1 and 2 with the same clause (Section 37 (1)(a) and (b)) of the earlier Army Act 1955 which it is intended to replace:

37 – (1) Any person subject to military law who –
(a) deserts, or
(b) persuades or procures any person subject to military law to desert
shall, on conviction by court martial be liable to imprisonment or any less punishment provided by the Act…

Clearly, here, the Act has the caveat “on conviction by court martial”: the accused has to be proved guilty beyond a reasonable doubt by the prosecution to the satisfaction of the judges before he can truly be considered a “deserter”.

Secondly, the replacement of the older and familiar “active service” by the vague term “relevant service” is unhelpfully ambiguous in the circumstances.

It is noticeable that the scope of this service, whatever it is called, remains unchanged since Section 224 of the Army Act 1955 stated,

“In this Act the expression “on active service”, in relation to a force, means that it is engaged in operations against an enemy or is engaged in a foreign country in operations for the protection of life or property or… is in military occupation of a foreign country, and in relation to a person means that he is serving in or with a force which is on active service”.

But the world that Her Majesty’s Forces were functioning in 50 years ago was very different from today, and the assumptions about an appropriate posture and deployment for them were based on the needs of Empire.

The Korean War (1950-53), a sort of aftershock from World War II, had just finished when the Act was being drafted. British forces had not long before (1948) left Indo-China (where, under Major General Gracey, elements of 20 (Indian) Infantry Division had been involved in the initial phase of the Vietnam War, before handing over to the French colonial authorities in the person of Admiral Darlan), Indonesia (where Major General Evans had taken the surrender of Imperial Japanese Forces and then handed over to the Dutch), and India (after partition into India, Ceylon, and Pakistan on Independence).

There had been the dramatic escape of HMS Amethyst down the Yangtse River in 1949. The Empire was metamorphosing into the Commonwealth, but quite considerable parts of it were yet to gain independence. There were counter-insurgency wars going on in Cyprus, Kenya, Aden, and Malaya. The Suez Crisis (1956) had yet to happen, and British troops were still in occupation of the Canal Zone (the last troops didn’t leave until June 1956). Sir Harold Wilson’s call for withdrawal from “East of Suez” didn’t take place until after he took office as Prime Minister in 1964.

There should therefore be an active, informed, and possibly spirited debate in Parliament as to whether the terms that might have been appropriate for the drafters of the 1955 Act are still a desirable means of describing the role of Her Majesty’s Forces for the 2006 Bill.

And, of primary and urgent importance, just what is the role of HMF today?

It is particularly worrying that such a debate is not happening, and that decisions are being taken that will affect the lives of soldiers, sailors, marines, and airmen and women by people who have never served in the Armed Forces of the Crown and who can have no imagination as to what it is they are asking of these young men and women. If ever there were a case or time for Robert A. Heinlein’s “qualification for citizenship” in Starship Troopers this is it (incidentally, Heinlein earned his place in the sun through his service in the US Navy).

Thirdly, the notion of “imprisonment for life” for such a prima facie desertion while on “relevant” (or active) service seems unduly harsh, and anachronistic.

It is simply the appropriate section of the 1955 Act with the maximum sentence of death removed.

Yet there needs to be some original thinking taking place where legislators go back to first principles and proceed from there, instead of cribbing from a nearly 60-year-old document: which itself was a rehash of the Army Act 1930, and that was an amended modification of the Army Act 1913. As L. P. Hartley wrote, “the past is another country; they do things differently there.”

But if the government drafters insist on lifting wholesale from their predecessors, perhaps they should take to heart themselves, and place prominently on the desk of their boss, the statement from Chapter VII of the Manual of Military Law that contains that earlier work. Paragraph 64 (a) reads,

“It is an offence against G. C. Act [Geneva Conventions Act], 1957, s. 1 for any person, whatever his nationality, to commit, or to aid, abet or procure the commission by another person of a grave breach of any of the Geneva Conventions of 1949 in or outside the United Kingdom.”

Just as the Human Rights Act 1998 conditions all subsequent British legislation, so too does the Geneva Conventions Act 1957 and military (or “service”) law is no exception.

There is the worrying nature of the trial of Dr Kendall-Smith.

His defence was to be built around the illegal nature of the War in Iraq rendering orders for him to deploy there to Basra as unlawful within the terms of the Act, and therefore (again within the terms of the Act) it was his duty to disobey them.

The Manual of Military Law describes a lawful command thus:

Lawful command. The command must not be contrary to English or international law and must be justified by military law.”

In considering this aspect of the law, commentators have noted that it is considered to be an absolute defence that the accused believed the command he was disobeying to be unlawful at the time.

To refuse the defendant facility to argue his case by simply stating that the orders were lawful and then not permit him leave to challenge this assertion smacks strongly of a politically driven show trial, such as were notoriously associated with Stalin’s regime of the USSR in 1936, or the Parteigerichte (“Party Courts”) of the Nazis.

Of course, if Dr Kendall-Smith had been allowed to pursue this line of argument it would have called into question not only the legality of the wars in Iraq and Afghanistan, but also the whole UK defence posture.

Which raises the serious and urgent question yet again, what, precisely, are Her Majesty’s Armed Forces for in 2001 and the rest of the 21st Century.

It should be contended that they have a number of key functions.

Firstly, the Defence of the Realm, that is the protection of the integrity of the United Kingdom, Crown Dependencies, and Dependant Territories from actual foreign attack and from domestic insurgency.

Secondly, the protection of British interests at home and abroad.

Thirdly, humanitarian aid and disaster relief.

Fourthly, the old activity of keeping the sea lanes open and protecting British sovereign waters.

Any other roles need to be examined carefully and be constantly monitored by Parliament, but it should be stated clearly that breaching the historically accepted “laws and usages of war” and the Nuremberg Principles are not in any way to be countenanced.

And although Coalition Defence has been an accepted posture since the founding on 4 April 1949 of the North Atlantic Treaty Organisation in the wake of the Soviet Foreign Minister Andrei Zhdanov’s Warsaw Declaration in 1947 and the Zhdanovishchina that followed, this does not mean that HMF can be used as proxy troops in someone else’s imperial ambitions.

A new century needs fresh thinking, yet there is no evidence that this is taking place.

It is not good enough for parliament and civil servants simply to keep resurrecting ideas and postures from the time of the end of the British Empire: that was nearly 40 years ago – practically two generations.

However, there is certainly one idea from the time of the Empire that could usefully be incorporated in the proposed legislation, and that is a “Conscience Clause” – what I have termed elsewhere a “Gallipoli Option”.

In his book on the Gallipoli Campaign, perhaps one of the best and most readable on the subject, Dr Robert Rhodes James wrote:

“On May 1st [1915],…the 29th Indian Brigade had disembarked. The Brigade consisted of the 14th Sikhs, the 69th and 89th Punjabis, and the 1/6th Gurkhas, but the 69th and 89th Punjabis contained two companies of Mahomedan troops, and General Cox [Maj Gen H. V. Cox] declined to accept responsibility for their loyalty against the Turks. The men were accordingly detailed for supply work on the beaches…” (James, Robert Rhodes, Gallipoli, B. T. Batsford, London, 1965, p 148)

The text is confusing. Each Punjab Regiment would have had two rifle companies of PMs (“Punjabi Mussulmans”) and the Support Company and Headquarters Company would have been mixed Sikhs, Hindus, and PMs, so the total numbers of Muslim all ranks involved would have been much higher than Dr James initially implies. He seems to correct this impression when he continues “and the strength of the Indian Brigade was reduced by a quarter”.

Nevertheless, the point is valid and leads to a sensible policy.

There is no apparent reason why Muslim troops should not serve in a hostile environment in a Muslim country providing they are not engaging in direct armed operations beyond the carriage of weapons for their own protection and those they are guarding. In such circumstances it would be possible to reassign them to duties at aid posts, base hospitals, airfields, supply depots, and other rear area facilities.

This could be developed into a general Conscience Clause for all service men and women where religious considerations present their engaging in hostilities against their coreligionists as a serious moral dilemma.

This is separate, and distinct, from another variant of the Conscience Clause which allows service personnel to declare a conscientious objection to a particular Operation and opt (or request) to be deployed elsewhere instead – thus freeing up other personnel who do not have a similar objection to serve in the Operation.

Both of these should be considered by Parliament, and, in my opinion and advocacy, incorporated in any new Armed Forces legislation.

There is no reason why either of these should be objected to, whether by military or civilian commentators, as they would be entirely in keeping with the Geneva Conventions Act 1957 and the Human Rights Act 1998.

Let’s see some independent thinking by our Parliamentarians, and some evidence that they are not in thrall to American neo-conservativism, which is a singularly inappropriate ideology for a British Labour, Liberal-Democrat, or Conservative politician and supporter.

Where have all the Tories gone? Because limiting the role of the Armed Services to defence of the realm and British interests, and not minding other people’s business was a traditional Tory posture.

Written by David Rosser Owen

December 16, 2008 at 2:01 am

Posted in Uncategorized

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