Marine A must face justice, but the law has its limits in warfare

I am afraid you only have to listen to the segment of tape – recorded by body-cameras – to understand why they feel as they do. The nature of the crime is clear from that chilling six-minute conversation between the three men. They know they have a wounded man; they discuss alternative ways of despatching him; they pretend to be giving him medical assistance, for the benefit of the cameras fixed to observation balloons; and then he is executed with a shot to the chest.

It is pretty clear, also, that Marine A is aware of the gravity of what he has done, because he explicitly urges his fellow soldiers to keep quiet about it, and accepts that he has broken the Geneva Convention. This treaty goes back to 1864, when nations agreed in the wake of the Battle of Solferino five years earlier that they would collectively spare all those who were hors de combat.

Indeed, the notion that it is a crime to kill the wounded is far more ancient than that, and can be found in the laws of war that were observed by the Greek city states. It is a principle that was founded then, as now, on a mixture of ideas: the universal human idea of mercy, and a sensible hope of reciprocity – that if we spare your wounded, you will spare ours. It is a very old and immutable code that Marine broke, and one that happens to be enshrined in modern British law. It is right that the courts should uphold that law, say the generals, and so do I.

The trouble is that not every aspect of military law is as immutable. Indeed, the law of all types of military behaviour is undergoing something of a revolution – as Charles Moore recently pointed out on these pages, following an excellent Policy Exchange pamphlet – and the cause of that revolution is the application of human rights.

There is now an intensifying rhythm of cases in which the Ministry of Defence and the Armed Forces are ticked off by the courts for their failure correctly to observe this or that article of the European Convention on Human Rights – and especially Article 2, the “right to life”.

You will appreciate the basic tension here. It will be increasingly hard to ask our military to achieve a series of objectives involving extreme violence and the risking of collateral damage, if those victims also turn out to have a “right to life” that can be vindicated in our courts. It will be very hard to get British officers to take the slightest risk with the lives of our own troops if they can be criticised for taking the wrong decisions. If something goes wrong in a firefight, it is now possible to imagine that a coroner could record a “narrative verdict” in which the officer is blamed for ordering, say, a left-flanking rather than a right-flanking manoeuvre. The whole concept of Crown Immunity – by which military decisions have traditionally been protected from this kind of legal redress – is now thought to be under threat.

No one is going to dispute the importance of the right to life, or indeed the importance of treating all combatants with respect. But it is worth pointing out that this country is now pretty much out on a limb, of all the major war-capable nations, in the way it has allowed “legal creep” into what was an exclusively military domain. The Americans would not dream of exposing their soldiers to this kind of judicial second-guessing. They whacked bin Laden without a second thought; they execute whole families in drone strikes. The French have a derogation that somehow means they don’t have to apply the ECHR to their military in the way that we do. The risk for Britain is clearly that it will be harder and harder for the Armed Forces to conduct operations without legal paranoia, paralysis and expense.

I stood by the Cenotaph yesterday and remembered those brave troops who died in Britain’s wars. Every one of them would have understood why the actions of Marine A were wrong, and why they constituted a crime. It was murder, no doubt. But if every act of war is subject to legal challenge, then we will not only lose our ability to fight a war. We will lose our instinctive understanding of what a war crime really is.