On Remembrance Sunday, when the nation recalls the sacrifice of servicemen and women in armed conflict, a highly unusual letter appeared in The Times. Co-authored by eight Generals (including three former chiefs of the General Staff) and one former head of the Air Staff, the pronunciamiento trenchantly disdained the purpose of the proposed bill to address residual legacy issues of the "Troubles" in Northern Ireland. It would merely open old wounds and do nothing to aid reconciliation, they said. The authors also deplored "an ever broadening interpretation" of the ECHR which is being "used against those acting under lawful authority of the crown". The letter asserted the new legislation was a product of the "legal activism" and "lawfare" which risked weakening the "moral foundations and operational effectiveness of the armed forces on which this nation depends". Those on active duty now had to consider the "lawyer behind" as much as the "enemy in front" and that this was to the detriment of military morale and recruitment, especially in the special forces. The letter rather darkly concluded that "ongoing lawfare risks everything".
On Times Radio, a former leader of the Conservatives said he could not recall such an intervention and judged it to be "unprecedented". He was very nearly right: although there is a bulky historiography of disagreements between the armed forces and the civil British state, including the now notorious "Curragh Mutiny", you have to go back to the 17th Century to see such a pyrotechnic public display of military dissent. But in their call for the government to "restore legal clarity, reaffirm the law of armed conflict" and to "deviate from the ECHR", were the Generals and Air Marshal right?
At the core of the letter lies a belief that the proposed bill effectively establishes a moral equivalence between the perpetrators of terrorist offences and those members of the security services who were trying to thwart them. The new legislation effectively repeals the "conditional immunity" clauses contained in the 2023 Legacy and Reconciliation Act, thus reviving the opportunity for the prosecution of agents, both state and paramilitary, on either side of the "Troubles". The authors fear veterans will once again be pursued through the courts and argue the "compact" that should exist between the state and armed forces in which the former stands by the latter when they act "within the law, under proper orders and in good faith", is being broken.
While the Generals and Air Marshal deny they are looking for immunity for the security services in respect of past actions and greater leeway in future ones, the dispassionate observer would struggle to reconcile this plea with the other points of the letter. The 2023 Act clumsily sought to draw a line under the Troubles by ending all UK police investigations into past acts and was drafted partly in response to some public disquiet about the continued legal bothering of veterans, especially those of the SAS. The signatories say the reversal of this would be unfair. Yet arguably the 2023 Act also established moral equivalence between the terrorists and state actors and was in any case ruled unlawful by the courts. The authors are tight-lipped on this.
Their argument the armed forces should be held to a different standard can be grasped by the meanest intelligence. After all, the serviceman and woman are willingly putting their lives on the line in obedience to the dictates of the civil state. Yet there is damaging ambiguity in the letter as to what standard they actually refer. In attempting to draw a line under the Troubles, they implicitly deny due process to those instances, such as Bloody Sunday in 1972, where the armed services were manifestly not acting within the law, under proper orders and in good faith. On the assumption the state enjoys a monopoly of force, public confidence in state institutions cannot be sustained where accountability is denied by vague notions of military necessity. So the authors are right in one sense - a different standard should apply and it is one far higher than that applied to the average citizen. Indeed the increasing application of remotely controlled lethal technology and the greater precision of modern weaponry argues this standard should be higher still.
The letter hints at this higher standard, but then promptly undermines it by asserting its application is eroding the morale of the armed services. It is also, they claim, damaging the retention and recruitment of special forces. For the former point, they provide no evidence. A theoretical case might be made that "lawfare" undermines morale but this does not seem to be substantiated by history. The widespread application of the criminal and civil law to state agents during the Troubles is hardly new: General Sir Frank Kitson was pursued by litigants for his command of 39 Brigade in the Belfast of the 1970s until his dying day in 2024. Yet such "lawfare" and the passage of time does not seem to have degraded the willingness of service personnel in aggregate to do their duty, as operations in Kosovo, Iraq and Afghanistan have demonstrated. The issues around recruitment and retention are more easily examined in societal changes, the diminution of military experience in the minds of citizens and the huge deterioration in the support given to service families. A citizen who baulked at recruitment to the services on the grounds he or she might end up in court would make poor martial material. So if there is a problem of morale, it speaks to deficiencies in training, support and leadership, not "lawfare".
The Generals are on far more slippery ground in their emphasis on special forces. The role of these in counter-insurgency operations - particularly in those where the primacy of the civil police is upheld, as in Northern Ireland - is far from settled. For all sorts of reasons, most of them inherently political, the Troubles were never designated as an emergency as had previous civil upheavals like that in Malaya. The rule of law was not suspended and where it was by exception, by such acts as "Internment-without-trial", the effects were counter-productive. Frank Kitson had made his name as the author of the 1971 book Low Intensity Operations based on his experiences in Malaya and Kenya. In it, he was sceptical of the sustained use of lethal force in counter insurgency scenarios, putting a much higher premium on thorough intelligence work, street level security and confidence building in the local communities. It was a doctrine endorsed by one of his proteges, Major General Colin Shortis, who served as both a battalion and brigade commander in Ulster. In a 1982 paper he commented "the use of highly trained, motivated and elite assault units can sometimes cause as many problems as they solve unless commanded by exceptional leaders of intelligence and moral stature". In the context conceived by the writers of the Remembrance Sunday letter (at least two of whom had served with the SAS), the importance of confidence building, deterrence and quiet attrition - which arguably lie at the heart of all successful counter-insurgency operations - appear to be of a second order to the legal comfort of special forces.
Special Forces have come to occupy an unhealthily dominant place in the public's conception of the military as a whole. Even Tony Blair, on his assumption of office in 1997, thought the Regular Army mostly consisted of brigades of SAS or those of similar capacity. Yet high profile instances such as the Iran Embassy siege and the novels of "Andy McNab" have given a distorted picture of what such special forces can achieve and of their culture. Aside from some spectacularly deadly acts such as at Loughgall in Armagh and Gibraltar, the SAS played a lesser role in the attrition of Ulster-based terrorists. But at a time when the primacy of the Royal Ulster Constabulary (RUC) in security operations should have been more firmly established, the use of the SAS in the province further strained relations with the civil population and accusations of a "shoot to kill" policy by the state were widespread. After all it was undeniable that membership of a paramilitary organisation was not, at law, a capital offence.
It remains to be seen if the Remembrance Sunday missive gets further traction. It is noticeable too that the former RUC provided no signatory to the letter. Yet as attested by 16 George Medals and 103 QGMs, the RUC bore by far the largest brunt of the security campaign against the paramilitaries in Northern Ireland; never was the collective GC awarded to its members in 2000 more richly deserved. More importantly the letter obscures one of the main lessons of the Troubles, namely the confidence which the military and police must command from the public if liberal democracy is to be preserved. This can only be achieved by the highest standards of training, professionalism and leadership under a civil magistracy. It is by these standards, rather than by narrow legal ones, that military men and women will be judged by their fellow citizens to be exceptional. The distinguished authors of the letter in the Times probably thought they were making this case. But it was not, alas, persuasive.
