Litigation does not always protect the living. Thoughts on the Supreme Court 'snatch' ruling.

Humphrey was very disappointed at the news today about the ruling by the Supreme Court that widows of soldiers killed in Iraq are able to sue the Government for negligence. What follows here is a very personal viewpoint as to why he feels this decision is not the correct one. From the outset, it should be clear that Humphrey has the most enormous sympathy for the families of those killed or injured – the pain they are going through cannot be conceived, and the natural desire to try and right a self-perceived wrong is fully understandable. But, his firm belief is that this is not the right decision and could make life more challenging for Commanders in the field and actually cause more deaths.

 The challenge we have in today’s Western society is that there is a deeper reluctance to take unnecessary casualties. While this author believes that as a whole we remain a ‘warrior nation’ able to absorb a steady stream of casualties, as a whole there is a greater effort to try and reduce these to the lowest possible level. Western society as a whole is less willing to tolerate large numbers of casualties (say WW1 levels) and invests a great deal of money in military capability in order to convince their troops that they are the ‘best equipped & best protected in the world’. This comes at a substantial price though – one only has to look at the cost of high end military equipment these days (say the FRES programme or other new APCs) to realise just how expensive having the best protection can be.

This is where the challenge emerges – it is expensive to procure a first rate set of vehicles to provide the best possible protection – ultimately compromises need to be made, and trade-offs accepted in order to balance the need for reasonable protection versus affordability in the wider budget. There is no point having a world class APC if you cannot afford any of the other enablers to deploy it properly.

In the case of the UK the problem is made doubly difficult by having a military optimised for global operations. The vast majority of equipment procured has to be able to work in all manner of conditions from Western Europe, to the desert, to the jungle, and experience of the last 20 years has seen some kit tested in all conditions. It is inevitable that something procured as a ‘jack of all trades’ will not excel in all conditions. Instead UK procurement can be seen as something of a balancing act, trying to put into service a vehicle designed to meet a hugely diverse set of requirements, and set against a truly global operating area. This is not easy, and it is to the requirement managers credit that there is such genuinely good equipment in service at the moment. What this means then is that one could see UK military vehicles and equipment as a bridging act – able to hold its own for a reasonable length of time in any one theatre, but not optimised for performance in one specific area.

In the case of both Iraq and Afghanistan, (and to a lesser extent Northern Ireland too) the military had to take equipment not optimised for the regions and work with it in theatre. In time as it became clear that there were environmental challenges which needed overcoming, and as the tactical environment changed, these vehicles were often upgraded and withdrawn. The flexibility of the Urgent Operational Requirement (UOR) process meant that it has been possible to transform a generic military capability into a hugely bespoke force – the equipment used on HERRICK now bears practically no resemblance to the equipment deployed in 2006. Indeed beyond a few generic light vehicles, it is hard to think of any vehicle fleet in service there being unchanged in some way. The myth that the wrong equipment is deployed and soldiers are left to deal with it is completely wrong – the British Army today on HERRICK has spent 10 years reequipping itself with an entirely new set of vehicles and equipment, which rely on technology which often didn’t exist a couple of years ago.

The system is far more responsive than the public give it credit for, and we should rightly be proud that there is good equipment out there. The problem is though that all this takes time to achieve – no army on the planet can re-organise itself and reequip itself overnight.

Both HERRICK and TELIC have been marked by an environment where the opposition, its tactics, its equipment and its membership had the potential to change on a monthly, weekly and sometimes daily basis. One only has to look back to the campaign in Iraq to see the changing nature of the IED, which went from a relatively simple ‘bomb in a box’ to being a hugely dangerous and incredibly sophisticated weapon system in a very short period of time. Similarly, the area of operations and the manner in which they were conducted changed, from hostile to permissive, to hostile and then to something in-between. There was no consistent period of change as loved by theorists with flowcharts depicting the phases of conflict – instead it was a very confusing situation which could be barely predicted, let alone managed.

Within this then the challenge was how to manage on the ground with equipment which was at times the right kit for the job, while a few days later it could be entirely inappropriate. Snatch Landrovers were not always the right vehicle, but they were often useful in the cramped backstreets of Basra, and as a less escalatory vehicle – the author remembers his time in Basra and hearing how the locals equated Warrior IFVs to Tanks, and their presence on the street did not always help improve relations. The commander on the ground then has to balance his assets and know that relying on the safest method of transport is not always the correct method.

Meanwhile where upgrades were going through, they took time to implement – one only has to consider that it can take a period of months to procure, manufacture, integrate, deliver, train and deploy even a basic piece of UOR kit. Now look at the case of a complicated system like a vehicle, which may need dozens of modifications, or introducing an entirely new platform into service to replace older ones.

It is easy to say that the MOD should have foreseen these challenges and equipped troops correctly, but with technology changing and finite resources in the mainstream budget which didn’t allow for this sort of widespread procurement of theatre specific assets, it is hard to see what else could be done. One only has to consider that procuring equipment takes time, training on it to use it to best effect takes even longer. The MOD was pilloried for delaying sending sets of armoured vehicles to Afghanistan some time ago, even though they were in vehicle parks in the UK – the reality though that there was no one trained to use them in theatre, that the tactics, spares chains, mechanics and all the other complex pieces of equipment needed to support them were in the UK and not HERRICK was not noted. There was a perception that because we possessed modern vehicles, we should deploy them, even if we could not support or operate them.

The challenge for commanders is how best to balance the need to deploy their assets, while using the equipment that they have to hand. The challenges of this ruling are that commanders will now need to consider their duty of care and not be able to take as much risk. Would a commander now be willing to send a Snatch vehicle onto the streets if he had no other suitable vehicles available? If the answer is no, then the question becomes ‘what is the impact’? By having to consider the reduced presence, we wonder whether the streets will become less safe, and the operational area less permissive for friendly forces. Could this lead to firing points being established in local areas, where it is not appropriate or physically possible to send a larger vehicle, but which a snatch could get into? If the establishment is mortared as a result of this, and people are killed, then has the UK government failed in its duty?

It is very easy with the benefit of hindsight to regard something as being the wrong vehicle for the job, but that is a reality of working with equipment which is being outpaced by both the operational environment and technological developments of the opposition. In the modern world knowledge transfer is easy to achieve, and as tactics and procedures evolve, they can shift areas and theatres of operations far more quickly than new equipment can be procured. In this world the opposition is very much inside our own OODA loop, and is media savvy enough to realise that concerted efforts against a specific vehicle type, or a ‘spectacular’ could see a strategic effect.

Commanders will now find themselves having to consider this, and while it is easy to say ‘but its only one vehicle fleet’ the reality is that it can have a far wider impact. Vehicles and equipment is not deployed in isolation, and they are mutually self-supporting – by denying a commander the ability to fully use or employ one vehicle for which concerns may exist, this may leave a gap in capability which cannot be filled by other assets, and in turn causing more deaths as the opposition exploit this.

Ultimately military operations are about inflicting violence on those who need it, and balancing risk against reward to achieve success. No one wants to come home in a body bag, and everyone hopes that their equipment is up to the job. Sometimes one must reluctantly accept that there will be risk taken on equipment in the short term, knowing that mitigation is underway in the medium term. This doesn’t make it any easier for the families of those killed, but how does one balance this – you cannot suspend military operations until the right equipment emerges.

While it is imperative that as a nation we seek to provide the best possible equipment within the resource constraints of the time, we must also accept that procurement is a trade-off. We will never have enough money to put the right equipment, meeting all possible threats and being future proofed to the nth degree across all fields of the military. To pretend otherwise is ludicrous.

While suing may achieve a self-perceived form of justice for loved ones, it will not change the reality of modern operations, namely that we need to work in an environment where the threat changes, and simply putting newer, larger and more protected vehicles into service is not only not the answer, but also cannot be done in a very short timescale. We must all remember that military operations come with a degree of risk, and while mitigated, it cannot always be eliminated. Humphrey feels deeply for the families of those who have lost loved ones, but cannot help but feel that in pursuing this case, they may inadvertently set the conditions where more will die unnecessarily than may otherwise have been the case.