Article published in The Daily Mail, 4 October 2016. © Richard Kemp
Sometimes in war there are no good decisions — only a difficult collection of bad ones. The soldier’s challenge, often with no more than a split second to make the choice, is to pick the least dangerous.
I have faced such impossible situations in Northern Ireland, in the Balkans, in Iraq and in Afghanistan. I’ve had to act when, whatever I did, I might face heavy criticism — for instance, when my unit captured Al Qaeda terrorists in 2003.
Execution was out of the question. It would be morally repugnant to me and completely against the laws of war, however convenient it might have been as a solution. Handing the men over to the Americans, perhaps to face extraction to Guantanamo Bay, was not an option.
I could have put them in an Afghan prison, though that was tantamount to setting them free. Or I could use British troops to hold the prisoners, even though we lacked the necessary facilities and my men were desperately overtaxed already. Any extra burden of responsibilities could threaten their own lives.
Ask yourself what you would do, and you’ll realise there was no right choice — some options were in a grey area, others were plainly wrong. I was lucky: with more than two decades of soldiering under my belt, I could figure out a solution.
Get that choice wrong, and I would be breaching the human rights of those Al Qaeda terrorists and murderers. It sounds ridiculous, but that is the truth of the matter. I might have faced years of investigation and harassment by Left-wing lawyers demanding heavy punishment for me and compensation for their clients.
It’s even possible that my case could have ended up at the International Criminal Court (ICC) in The Hague, where war criminals are tried.
This is not fanciful. It is the sickening reality that faces hundreds of British troops.
Take the case of former Guardsman Martin McGing (interviewed in this edition of the Mail), who was just 19 when he was ordered to restrain looters in Basra, Iraq, during the chaotic days following the overthrow of Saddam Hussein.
One of the looters drowned in a canal that day, though it beggars belief that anyone, let alone the Ministry of Defence, could assume this was the fault of one of the most junior soldiers present.
What followed was even more unbelievable: months later, as he prepared for ceremonial duties in London, Guardsman McGing was arrested by military police in front of his comrades.
It was three years before he was cleared of manslaughter by a court martial — and that was only the start of his ordeal. He was investigated for five more years by the Iraq Historic Allegations Team (IHAT), and cleared in 2010.
He was dragged back before the High Court to give evidence to the Iraq Fatalities Investigations (IFI) in May this year. Now the ICC is considering whether to launch its own probe.
Incredible. Farcical. Despicable. I don’t have the words to sum up how angry and despairing this makes me feel.
There is now one glimmer of sanity, however. Today, following a campaign by the Daily Mail that highlighted the outrage of Britons, Theresa May is announcing a change in the law so that, in future, our Armed Forces would be distanced from certain articles of the European Convention on Human Rights.
This spells an end to malicious, disruptive legal investigations into the behaviour of British troops on the battlefield.
Not before time. It was the simple and obvious answer, and one we should have adopted from the start, as the French have already done.
Make no mistake: I believe our soldiers should be held to the very highest standards. But this has to be done by military authorities using the Laws of Armed Conflict, not by civilian courts using human rights law. It is ludicrous to attempt to apply everyday laws to the extremes of battle.
The Defence Secretary Michael Fallon clearly agrees with me. Responding to the Prime Minister’s announcement, he said: ‘Our legal system has been abused to level false charges against our troops on an industrial scale.’
He’s right. The behaviour of lawyers such as Phil Shiner, of Public Interest Lawyers (now disbanded, stripped of its public funding and facing investigation itself by the National Crime Agency) has been shameful.
His company lodged at least 188 compensation claims for Iraqis and as many as 1,150 claims of alleged wrongdoing and murder by British troops using the Human Rights Act.
Many of the Iraqis pressing claims against British soldiers for alleged misconduct will be doing so not just for money but for political reasons. They want to undermine our country and we have been actively helping them to do that. We are not only encouraging their greed but funding their war against us.
Many people, including me, warned repeatedly that, by signing up to the European Convention on Human Rights and pledging to abide by it even in battle, the British government was forcing its soldiers into an atrocious position.
It is impossible to imagine that Winston Churchill or Clement Attlee would ever have placed our troops in such an invidious situation. Nor would Margaret Thatcher, who, though she did not serve in the Armed Forces herself, was married to a former wartime soldier.
It was, of course, Tony Blair’s government that signed up to the Human Rights Act in 1998 and took us into this appalling situation in the first place. But the fact is that David Cameron — who has no conception of what it is like to see real action — also bears considerable responsibility for this shabby state of affairs.
Cameron could have insisted that, like the French, we derogate from the Human Rights Convention; he could have done far more to try to halt these endless, morale-sapping investigations into our troops. But he is completely detached from the reality of ordinary Service families.
It is no coincidence, I suspect, that Mrs May is the granddaughter of an infantry regimental sergeant major and is deeply proud of it. She understands well enough to make a start on extricating the country from this hellish mess.
But she hasn’t gone nearly far enough, and her Defence Minister’s reaction was immediate proof of that.
We are left with huge numbers of investigations from past conflicts, and the PM’s ruling is not being applied to them. It’s a complex business, but somehow this change in the law must be applied retroactively, so that Human Rights laws are no longer held to apply to historic cases.
That’s common sense. But, of course, common sense can be notoriously awkward to apply in the real world.
The alternative, however, is not appealing. Our troops are being hounded under civilian laws: very well, give them civilian rights. Let them form trade unions, or at least have a watchdog to guard their interests, in the way that the Professional Footballers’ Association looks after soccer stars.
That sounds ridiculous, I know. But it’s not as ridiculous as hounding hundreds of innocent soldiers who volunteered to put their lives on the line for their country.
Ridiculous, too, is the revelation that a fresh wave of investigations into British troops’ actions in Afghanistan is expected, at a cost to the taxpayer of at least £7.5 million.
These include the case of a Taliban bomb-maker, who was held for 106 days to prevent him manufacturing explosive devices that would kill and maim our soldiers. Imprisonment, says this cowardly killer, infringed his human rights.
Theresa May’s announcement is a welcome start but it will not stop this madness of hounding troops for incidents that took place in the past.
The impassioned campaigning of millions of ordinary people has helped bring about this week’s changes, but much more must be done.
Governments act when they are under public pressure. For the sake of our brave troops, we must never give up.