By John Keegan
'When arms clash, the law is silent." So runs a well-known Latin tag. In the days of the Roman legions it was an exact description of procedure. Roman law was brutal in the extreme, legions fought to win victory with no concern for the fate of the losers. Prisoners were usually killed, unless they were spared to be sold into slavery.
In later centuries, the awfulness of Roman war was a little softened. Medieval Christian theologians tried to establish a code of behaviour, which came to be known as the Just War doctrine. It laid down, among other things, that non-combatants, women, children and priests, were not legitimate targets of violence and that the lives of prisoners should be spared. Just War doctrine caught on. During the First World War, there was very little harm done to civilians and the killing of prisoners, though not unknown, was regarded as beyond the bounds of civilised warfare.
There was a subsequent decline. The Second World War was characterised by appalling loss of life among non-combatants and a great deal of deliberate slaughter of prisoners, women, children, and other defenceless beings. As a result, a firm effort was made by the victor nations, principally Britain and the United States, to restate the principle of Just War and to punish transgressors. The worst of them were condemned at the Nuremberg Trials, which laid down that obedience to orders, if illegal, was not a defence.
More recently, and following appalling episodes of criminal behaviour on battlefields and in war zones, the international community has moved to reinforce the Nuremberg principle. There is now an International Criminal Court at the Hague, set up to try to punish war criminals. The law of war crimes has been incorporated into British law under the International Criminal Court Act of 1991.
The United States has been much denounced for failing to fall into line with other states, particularly in Europe. Recent events suggest, however, that the Americans may have been wise to withhold their consent. The British are discovering why. The Iraq war, which is both unpopular and in the eyes of many, illegal, has led to the prosecution or threat of prosecution of dozens of British soldiers. The outcome of promised proceedings is unknown but it seems possible that there will be sentences.
Some, no doubt, will be justified if, as seems possible, mistreatment of prisoners of war, or civilians caught up in the fighting, is proved. Disquiet over those criminal proceedings lies elsewhere. The disquiet falls under two headings. The first concerns the nature of the fighting in Iraq. The second concerns the effect that using international criminal law has on the morale of the Army.
As to the fighting in Iraq: an insurgency of this sort leads to confusion and misunderstanding. There is no front line, no division between the war zone and civilian areas, no distinction between terrorists and law-abiding citizens. What is truly horrible about war is that there is not a protective policeman standing on the nearest corner ready to prevent criminal violence taking place.
The only effective agents in a war zone are the combatants themselves, and the innocents have to rely on such people's instincts of decency or fear of punishment for misbehaviour to avert harm to themselves. Or else use weapons in self-protection. There, of course, lies so much of the fatal confusion to which insurgencies give rise.
A lot of the shooting is done, if not by trouble-makers, then by frightened heads of families seeking to defend their hearths. The peace-keepers have little ability to distinguish one sort of shooting from the other, easily mistake the two and, in self-defence, vent their own fears on those a court of law, were it to review the evidence, which is practically impossible, would regard as acting in justifiable self-defence. The circumstances create an impossible situation even for the most law-abiding army.
The mobilisation of legal procedures within a law-abiding army, such as the British, against its own people, has the most undesirable effects. No one wants law-breakers to go unpunished. The reality is, however, that once military police and military lawyers start investigations, the normal understandings and assurances of mutual confidences on which normal army life subsists go out of the window.
Military lawyers, in the nature of their job, cast their net as wide as possible. Comrade is questioned against comrade. Suspicion is aroused. The law of self-protection sets in. Men who would never in everyday life impugn a brother in arms are driven to hint at wrongdoing. Worse, those in positions of command who would normally object to any accusations being levelled against their subordinates become affected by the desire to distance themselves from criminal proceedings.
Those who were in the front line, an intrinsically lonely place, suddenly find themselves lonelier still, without any protectors among those they are taught to regard as their natural protectors.
The legal code, in short, is highly destructive of the emotions, comradeship, mutual concern and responsibility of seniors for juniors on which the military system operates. Traditionally, the British Army always recognised that the intrusion of civilian law into its way of life was undesirable. In consequence it maintained its own legal system in which, under court martial, soldiers were judged by other soldiers.
There was a lot that was wrong with the court martial system, which produced much rough justice. There was, however, also a lot that was right. Under court martial, it is unlikely that officers or soldiers, pleading that their actions should be understood within the military realities of fear, confusion and concern for each other's safety, would be condemned for lack of understanding of such circumstances. Good civil law is likely to make for bad military law. Only a lawyer would argue otherwise.