King Henry V may have been a hero to Shakespeare, said Charles Moore, but he’d be a war criminal in today’s Britain. When he ordered his men to go “once more unto the breach” or “close the wall up with our English dead,” he was surely in violation of the U.K. Health and Safety at Work Act as well as the European Convention on Human Rights. The British military is now hamstrung by such laws. In their new paper “The Fog of Law,” defense experts Tom Tugendhat and Laura Croft Klein show how litigation over U.K. military action has exploded, from just a few cases before 1990 to more than 5,000 last year alone. As a result, Britain now has “risk-averse military leaders.” They may be personally as brave as King Harry ever was, “but the encroachment of law forces them to turn their faces from scanning the horizon of potential conflict and look over their shoulders instead.” The Falklands War, for example, might not have been won had the commanders worried that they’d be sued for ordering pilots to push planes to the limit and refuel in the air. The simple truth is that we can’t apply civilian legal norms to the military. “Judges cannot tell an army how to fight, so they shouldn’t try.”
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