“PEACEKEEPING” is the term that now covers all activities and engagements of British troops in most of the world’s troublespots, notwithstanding that usually there is no peace to be kept.

Apart from assuaging the collective conscience of Western governments, the substitution of “peacekeeping” for an entire lexicon of more martial terms has led to an unintended consequence: that is, to deprive British soldiers of the immunity from civil suit that used to cover most damage caused during combat.

Peacekeeping was what British soldiers were doing in Kosovo on the night of the shooting that led to Bici v Ministry of Defence. It does not augur well for troops in Iraq or on other similar operations that the judge unequivocally rejected the defence of “combat immunity”.

This principle was developed during the Second World War, when an Allied troopship ploughed into an Australian commercial vessel. The negligence action was dismissed. The High Court of Australia refused to find liability on the part of the Royal Navy. Its reasoning was that it was not for the courts to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. Thus the defence of combat immunity was born, and continued to protect servicemen from retrospective liability ever since.

And it was this principle that was advanced by Stephen Miller, QC, counsel for the MoD in the Bici case, to exonerate the soldiers in Pristina. But the judge refused to accept that the matter was non-justiciable. In his view, the principle of combat immunity had no application where the damage was caused by deliberate action.

Had a full-scale riot, or gun battle, immediately broken out between the Serbs and Kosovans in the crowd, the principle of combat immunity should logically have applied. In other words, had the claimants been injured as part of a larger action arising out of combat — that modern smokescreen known as “collateral damage” — the immunity would have protected the soldiers from a negligence suit. But now it seems that the specific “peacekeeping” role of the soldiers, along with their instructions to fire only if they encounter life-endangering conduct, exposes them to open-ended litigation with all its attendant paraphernalia of witnesses’ evidence, ballistics experts, and the uncertain analysis of the “fog of war”.

Modern Western armed forces are more likely to be involved in peacekeeping or policing actions than in direct combat. That does not mean that the situations they find themselves in are any less inflammatory, or that the decisions or steps they have to take are premeditated in the cool light of day. Indeed the global presence of international peacekeeping forces in an increasing number of hotspots would seem to suggest that, far from being limited in scope, combat immunity should be put on a wider and more formal footing.

The author is an academic consultant at 1 Crown Office Row

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