War-Torn Justice

Justice for those who have suffered at the hands of war can be hard won. John Cooper explains how the Bar provides an essential pro bono service to those who have suffered through armed conflict.

The legal profession does not have the luxury of living in a vacuum, either socially or politically. Sometimes the human consequences of political decisions requires from us a committed and extensive reaction.


A significant example of this is the work by the Bar—done pro bono—as a result of the conflicts in Iraq and Afghanistan. When these wars began, few fully anticipated the overall consequences of military action, both in the theatre of war and at home.

The human loss, suffered by law abiding Iraqi, Afghan and British people, makes for tragic reading and this loss continues. In this country it is accentuated by the sight of coffins covered by Union Jacks, the tragic repatriation of service men and women at RAF bases at Lynham or Brize Norton, and the grieving families and loved ones. In theatre, the loss is even more profound, certainly numerically, as lives are lost, communities destroyed and fundamental systems of justice demolished.

Access to justice in Afghanistan

Fortunately the modern Bar is at the forefront of offering help and assistance during these troubling times and most of it pro bono. The 2008 winner of the Bar Pro Bono Award, presented at the Bar Conference last November was the “Access to Justice in Afghanistan” project, a dynamic initiative from the Bar Human Rights Committee.

This five-year project has provided training for local lawyers, academics, NGOs and students and has sourced, purchased and distributed some 10,000 legal textbooks. In places like Afghanistan where the basic infrastructure of justice has been levelled during the remorseless conflict, the regenerating of a system of justice which underpins the rule of law could not have started without the raw materials of the legal process, trained lawyers and up-to-date legal texts.

The Bar Human Rights Committee provided training at annual workshops in the capital city, Kabul, focusing on discrimination, violence against women and the rule of law.

Dangerous mission

Although those who went into theatre do not talk too much about it, this is dangerous work. Speaking to one volunteer at the Bar Conference, I was told of the training they received in advance of the journey to Kabul. It did not consist of an advocacy workshop. This training was designed to ensure their personal safety and was given by SAS trained specialists. “Without any notice we were told that there was a life threatening incident and that we had to react in accordance with set protocols within seconds,” one barrister explained.

Influential initiatives

Commendable though this project is, it is but one of the influential initiatives taken by the Bar Human Rights Committee, the flagship of the human rights work on behalf of the profession. Its work has crossed almost every international border where violations are occurring or suspected and attracts the most eminent of speakers who regularly attend their London based meetings.

Of course, the tragedy of war never remains in the field of battle and for those observing the conflict from the perspective of this country it is the bereavement and loss of families in every part of the UK that graphically illustrates the cost.

It is sometimes suggested that those who seek to know the full facts of how their loved ones died in Iraq or Afghanistan are somehow being disloyal to the Forces in which they bravely served.

Nothing could be further from the truth. Families, who hitherto never questioned the role of the deceased in the Armed Forces, come to realise that the so-called military covenant—that of trust between service personnel and Government, that they would be properly protected and cared for, before during and after conflict—might have been broken.

Military inquests

It is with this in mind that the Bar has been at the forefront in representing bereaved families at military inquests. Some have been high profile, but in all we provide the necessary representation required to challenge and probe the circumstances which brought about death. Fundamentally, this is conducted during the course of inquests and, once again, predominantly on a pro bono basis. Legal aid is only exceptionally provided for inquest work. Even though an application for public funding may be made a year before the substantive hearing, the Legal Services Commission does not actually grant it until weeks before. It is not retrospective. Before any funding is granted, the papers have to be set before a government minister, for his/her express approval. In short, this means another substantial pro bono commitment for the Bar.

Coronial changes

Looking towards the future, this is something the Bar can look forward to not changing. The Coroners Bill, announced in the Queen’s speech on 3 December 2008, includes clauses establishing new rights of appeal from Coroner’s decisions, reform of the inquest jury numbers and new powers of search and seizure. It does not however include any proposal to reform the public funding provision for inquests.

Ministers justify this on the basis that the Coronial system is inquisitorial and therefore lawyers are not needed in the process. This, however, is the opposite of how things are conducted on the continent, where public funding is available and considered to be necessary in an inquisitorial system. In addition, if the taxpayer is not to be asked to fund legal representatives of bereaved families, why should they fund the significant and experienced legal representation of the Ministry of Defence? It is a point which is not lost on bereaved families, some of whom are told at the door of the Crown court that they do not need legal representation.

Essential service

It is in this context that the Bar provides its services, so that bereaved families have an opportunity effectively to examine the complex and sensitive material placed before military inquests. It remains inconceivable though that they should have to rely on the pro bono services of the Bar, or their own resources, when they have against them the Government, the Armed Forces, and the police. If they should challenge a decision through judicial review, they have to pay the Government’s costs if they lose. So it is that the Bar provides an essential service, both nationally and internationally, to those who have suffered as a result of armed conflict, reacting to the issues of our time, endeavouring to make right the consequences of the decisions of others.

John Cooper QC

Category: