Briefing on the Armed Forces Bill by Payday
Lords’ Committee Stage – 11-12 October 2006
The Armed Forces Bill, a major redrafting of military law, will be in Committee in the House of Lords on the 11th and 12th of October. The UK government, worried that the number of soldiers absconding from the army has trebled since the invasion of Iraq, is legislating to repress this movement in the military. Before peers vote on this Bill, they should be fully aware of serious objections to it from other peers, MPs and the public.
Clause 8 introduces a new definition of desertion: soldiers who go absent without leave (AWOL) and intend to refuse to take part in a “military occupation of a foreign country or territory” can be imprisoned for life.
The government contravenes the Nuremberg Principles (1950) which enshrined in international law the responsibility of each of us to refuse to obey illegal and immoral orders from any government. The eight-month sentence of Flight-Lieutenant Malcolm Kendall-Smith is a warning to military personnel who would act on principle.
Justin Hugheston-Roberts, the solicitor who represented RAF Flight Lieutenant Malcolm Kendall-Smith when he was sentenced to eight months for refusing to serve in Iraq, said: "We are seeing an increase in the number of people who have absented themselves from service who come to us for advice."
The Bill ignores the injustices soldiers already face -- denied information, labour rights, and human rights.
>> Soldiers who refuse orders and want to declare themselves as COs are denied immediate access to the Advisory Committee on Conscientious Objectors (ACCO). ACCO hearings may be held after a prison sentence is completed, if at all – disciplinary hearings and sentencing come first.
>> Soldiers are subject to a form of bonded or indentured labour; they are contractually unable to resign before completing four years service. Those who are 16-18 years old (the main target of recruiters) -- child soldiers -- may be obliged to serve until age 22; if they opt for education, this may increase to age 40!
>> There are restrictions imposed on soldiers joining trade unions: they are not allowed to take part in any political activity nor wear uniform at any meetings. There are no trade unions specifically for armed forces personnel.
>> Soldiers found guilty of causing a person to be “despondent or alarmed” can be imprisoned for life. Is this extraordinairy wide-ranging restriction designed to prevent soldiers telling the truth about the horrors of war and occupation, and their refusal to be part of it?
>> Soldiers facing a serious criminal charge don’t have the right to demand a trial by a jury of 12 people in a civilian court. At the present time they may be tried in front of three officers at a court-martial -- whose pay, discipline and promotion depend upon their success in maintaining discipline.
>> The Bill may be incompatible with the Human Rights Act which gives everyone the right to a fair and public hearing of any criminal charge by an independent and impartial tribunal established by law.
The Bill, instead of righting these wrongs, underlines and adds to the injustices. When soldiers’ right to follow their conscience is denied, the whole society, starting with women and children in occupied countries, pay with their lives.
WHAT LEGISLATORS HAVE SAID ABOUT THE BILL
Lord Thomas of Gresford : (Hansard 24 Juy) It should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq.
I have received, as I am sure have other noble Lords, representations that the subsection that deals with military occupation should be dropped. It was slightly startling to read. It is a new concept in military law.
Lord Judd: (Hansard 14 June 2006) Life imprisonment is a heavy sentence. A serviceman or woman should be expected to refuse to carry out an order which he or she knows to be illegal. Such refusal should have our complete and unqualified endorsement.
John McDonnell MP: (Hansard 22 May) This legislation fails to show a modern understanding of why people desert . . . because of fear or trauma, or out of conscience. We should not penalise them with life imprisonment; we should accept that it is a disproportionate sanction, not the appropriate one.
Harry Cohen MP: (Hansard 22 May) Subsection 3(c) [military occupation of a foreign country or territory] has the potential to enshrine an illegal occupation.
Angus MacNeil MP: (Hansard 22 May) We should not allow, in any way, shape or form, servicemen to be threatened with life imprisonment if they follow the 1950 Nuremberg principles and their conscience, and question orders.
Alan Simpson MP: (Hansard 22 May) In Austria, the maximum sentence for desertion is one year; in France, in peacetime up to three years; in Germany up to five years; in the Netherlands, in wartime, a maximum of seven and a half years; in Poland in wartime up to three years.