Invasion of the tank-chasing lawyers

Incredibly, there is still a war being fought in Afghanistan. As of February this year , there were still over 100,000 NATO troops stationed there. And yet, despite nearly 12 years of fighting in this most attritional of conflicts in the inherently interminable ‘war on terror’, Afghanistan still seems no closer to some sort of peaceful resolution. Indeed, as one expert noted of the anti-NATO insurgency, ‘the level of violence this year has been high, approximately on a par with 2011, which was the worst year since the war began in 2001’.

However, despite it being a war in which over 3,000 NATO troops have been killed, alongside countless insurgents and civilians, there are some, it seems, who are intent on treating Afghanistan as a place in which the law, as practised in the West, ought to apply. Even though it is a warzone. Slaughtering people is okay, it seems, as long as those doing the slaughtering play by the rules.

This absurdity was well illustrated by the conviction this week of two unnamed British soldiers for ‘abusing’ Afghan civilians. The details of the abuse, revealed at a court martial hearing in Sennelager, Germany, were certainly distasteful. One soldier was found guilty of abusing an Afghan boy. He had apparently pulled the boy’s hand towards his crotch before announcing to his fellow soldiers that the boy should ‘touch my special place’. That same soldier was also found guilty of ‘insulting’ another Afghan child between 16 October and 2011 and 6 January 2012. The second unnamed soldier admitted to having an Afghan man photographed with a sign which read ‘silly Paki’. He was found guilty of a racially aggravated offence likely to cause harassment, alarm or distress under the Crime and Disorder Act.

The soldiers’ behaviour was certainly unpleasant. But then again, during a war, soldiers’ behaviour is often unpleasant. And little wonder: they are permitted by the state to kill people. The value of the life of others not on your side is diminished, as they become either the enemy or mere collateral. In such a thoroughly dehumanising context, it is hardly a surprise that certain actions and behaviour, which would be judged distasteful by everyday standards here in the UK, appear almost acceptable. So to pack thousands of troops off to Afghanistan to fight a war and kill a lot of brown people, and then, in an almost surreal display of double standards, to prosecute one soldier for ‘a racially aggravated offence likely to cause harassment, alarm or distress’, seems more than a little absurd. 

In many ways, the conviction of two soldiers for behaving in a socially unacceptable manner during, well, a war, is indicative of a broader phenomenon: that is, the legalism that has accompanied recent Western interventions. So while the state is busy sending troops over to far-flung lands to kill people, an assortment of human-rights lawyers and campaigning groups has effectively accompanied them to ensure that the war is being conducted in the correct manner, and, if not, that Afghan claimants are suitably represented.

As with the war in Iraq, one of the most notable results of this ‘invasion of the lawyers’, as Brendan O’Neill referred to it in the Spectator in 2004, is the emergence of a compensation culture in Afghanistan, whereby Afghans who can prove they’ve been affected by the war are remunerated for their trouble. According to available information, the Ministry of Defence paid out £380, 600 in 2008, £452, 700 in 2009, £1.4million in 2010, £510 ,728 in 2011, and £537,684 in 2012.

The compensation claims range from the tragic to the trying. So, while there was a pay-out recently to the family members of those killed, including a mother and her children, when a rocket overshot a target and hit the compound in which those individuals were living, the vast majority of payouts seem to be for things such as crop damage. 

It is a bizarre phenomenon. As the armoured SUVs hurtled into Afghanistan in 2001, it seems they were chased by an army of lawyers, looking to represent the victims of the war on terror’s Afghan front. Take the recent news stories about the detention without charge of 85 Afghans at Camp Bastion in the Helmand Province. What’s notable is that criticism of it is being driven by London-based lawyers representing particular detainees, and is being made on legalistic grounds. ‘They [the British government] have chosen to go down a route which I think is completely worrying and entirely unconstitutional’, said Phil Shiner of Public Interest Lawyers. ‘Whatever the solution is [to prisoners of the ‘war on terror’], flagrant breaches of the common law and international law, that’s not the answer’, he said. 

It’s impossible not to sympathise with those in Afghanistan whose lives have been affected and, in many cases, devastated by NATO’s war without objective. It’s also hard to begrudge those who have had to endure desperate hardships seeking legal redress – after all, there are plenty of missile-chasing lawyers ready to help. Yet it’s also difficult to avoid the conclusion that there is a huge difference between litigation and liberation, between being legally recognised as a victim of a wrong, and being in a position to determine one’s own future free of Western armies. 

Moreover, legal challenges to the conduct of the war are a poor substitute for a principled opposition to the fact that it is being allowed to take place at all. In fact, this climate of legalism, of chasing down the MOD for potential law breaks, implicitly endorses the war in Afghanistan. That is, it suggests that so long as the war is fought in the right way, and that those killed or hurt are ‘legitimately’ killed or hurt, then it can continue. So while the growing mountain of legal claims against the military, from racially aggravated abuse to the detention without charge of Afghan prisoners, explicitly opposes the excesses of the ‘war on terror’, it implicitly excuses its everyday execution.

Tim Black is senior writer at spiked.