Tuesday, 9 February 2010

The Use of armed force by UK military personnel has been unlawful in UK law since 20th July 2000

The title of the post asserts the bald and controversial interpretation that I put forward regarding the legal position relating to the use of armed force by UK military personnel.

I'll assume that it is not in dispute that the Terrorism Act 2000 was determinative in matters of terrorism from 20th July 2000.

From that date the Terrorism Act 2000 is the primary, permanent legislation where "terrorism" is defined (in Section 1 of the Act).

Where the tests relating to "terrorism" specified in Section 1 of the Act are satisfied other parts of the Act need careful consideration.

The crucial part of assesing the validity and/or applicability of my thesis is testing whether or not the Section 1 tests of "terrorism" are satisfied or not.

In the general case three tests need to be satisfied, which are briefly stated in Sections 1(1)(a), 1(1)(b) and 1(1)(c).

Armed military force, of practical reality, involves the use of firearms and/or explosives. The effect of Section 1(3) is that it is not necessary for the test specified in Section 1(1)(b) to be examined.

To establish terrorism when the use of firearms or explosives is routine one need only look at the tests in Sections 1(1)(a) and 1(1)(c).

It is a given that the UK armed forces are under political control and act in accordance with the political aims of the UK Government of the day. In the general case it seems to me that the test in Section 1(1)(c) is met.

The component parts of the test summarised in Section 1(1)(a) are set out in Section 1(2). Meeting any one of those tests is sufficient for the test in Section 1(1)(a) to be satisfied. Can you imagine a war where the actions specified in Section 1(2)(a) or 1(2)(b) don't occur? Neither can I. So, in the general case, relating to the use of armed force by UK military personnel we can expect the test expressed in Section 1(1)(a) to be satisfied.

The tests in Sections 1(1)(a) and 1(1)(c) are therefore both satisfied in the general case.

The action of the use of armed force by UK armed forces in the general case is therefore "terrorism".

As a consequence, individual members of UK armed forces and those commanding them are guilty, in the general case of the use of armed force, of offences specified in other sections of the Terrorism Act 2000. This has been true for any use of armed force by the UK military since 20th July 2000.

The terminological effect is that any use of armed force by UK armed forces since 20th July 2000 has been "terrorism" as defined in the Terrorism Act 2000.

Those military personnel who have participated in those acts of terrorism in the period specified are "terrorists" in the meaning of Section 40 of the Terrorism Act 2000.

The practical effect is that UK military personnel have acted contrary to UK law on multiple occasions and that a large number of UK military personnel have committed one or more of the offences specified in the Terrorism Act 2000.

Simple really.

It is for Chilcot to find out if Goldsmith overlooked this line of argument. And, if he didn't, why he gave the advice to the Chief of the Defence Staff that he gave in writing on 13th March 2003.

In time it may be for UK courts to consider the evidence that UK Ministers, civil servants and military personnel committed offences specified in the Act as appropriate to their circumstances and actions.

If my interpretation is correct, the impartiality of the UK courts is going to be tested in a way never before so evident to the public, both in the UK and worldwide.

1 comment:

  1. Thanks for the link, Andrew. A fine blog, and closely reasoned argument. Will there be justice? Probably not, but we must keep trying ...