By Caroline Wyatt Defence correspondent, BBC News A "sustained legal assault" on British forces could have "catastrophic consequences" for the safety of the nation, an influential right-leaning think tank has warned.
A report for Policy Exchange says legal action may paralyse the armed forces.
It highlights a surge in legal claims against the Ministry of Defence - totalling 5,827 in 2012-13.
But lawyers for the families of service personnel dismissed the findings as "political" and "biased".
The report says litigation has led to the MoD employing around 310 lawyers and legal consultants at a cost of £36m a year.
Entitled 'the Fog of Law', it points to the application of the Human Rights Act and the growing application of civilian norms to military conduct via the courts as risks to the UK's armed forces.
Combat immunityThe report's authors are Territorial Army Lieutenant Colonel and strategy consultant Tom Tugendhat, and retired US Army Lieutenant Colonel Laura Croft, who served in Iraq and also as a lawyer, teaching international and operational law.
The main "weapon" used in the legal challenge is the European Convention on Human Rights (ECHR), they argue.
Although the ECHR had applied since September 1953, the Human Rights Act (HRA) in 1998 gave individuals the ability to appeal directly to domestic courts.
This, combined with the wars in Afghanistan and Iraq, saw a rise in actions brought through the courts.
In the past, those serving in the military were protected from prosecution under Combat Immunity, while the Law of Armed Conflict regulated the conduct of war.
But recent judicial findings have extended common law claims of negligence and civil claims of duty of care to the combat zone, and the authors claim this is already affecting the combat capability of the services.
'Legal creep'They cite cases such as that of Ahmed al-Fartoosi, the leader of the radical Shia cleric Moqtada al-Sadr's militia, who is in the process of suing the British government for compensation.
He alleges abuse during his captivity in Basra, and claims that he was denied his rights under the ECHR.
Other claims include that of Ali Al Jedda v the UK (2011). The claimant was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq.
End Quote Jocelyn Cockburn LawyerThis report seems to me to be part of a concerted political attack on the Human Rights Act"
He sued the government using Article 5 of the Human Rights Act, a decision thrown out by the UK Supreme Court but overturned by the ECHR.
This year, the Supreme Court ruled that British troops remain within the UK's jurisdiction and so fall under the Human Rights Act, even when deployed on active service abroad.
The report's authors claim that in the long run, "legal creep" could pose a "mortal threat to the culture and ethos of the military which cannot be easily reversed."
They say that the extension of law risks "catastrophically weakening the UK".
And they claim it may not be long before a foreign power or even insurgent forces begin to sponsor legal actions as a way of paralysing UK forces through legal process.
'Reduce risk' obligationMilitary personnel should not be above the law, says Lt Col Tugendhat.
But he added: "As the ultimate guarantors of a nation's liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this, the nation would be undefended."
"The fact is that the application of the ECHR through the Human Rights Act means that, now, foreign European judges from Russia, Moldova, France, Italy, can sit in judgement over orders given by British commanders to British soldiers in operations around the world," he told BBC Radio 4's Today programme.
"This is very novel and extremely dangerous."
Their report recommends that:
- the government should introduce legislation to define Combat Immunity to allow military personnel to take decisions without having to worry about the risk of prosecution
- Parliament should legislate fully to exempt the MoD from the Corporate Manslaughter and Corporate Homicide Act
- the UK should derogate from the European Convention on Human Rights during deployed operations
- legal aid should be removed from lawsuits brought by foreign nationals against the UK government.
But lawyers for Sue Smith, whose son was killed in a Snatch Land Rover in Iraq in August 2007, criticised Policy Exchange's conclusions.
"This report seems to me to be part of a concerted political attack on the Human Rights Act," said Jocelyn Cockburn of Hodge Jones & Allen.
"Wives or mothers such as Sue Smith come to me not because they wanted compensation money, but to campaign against the use of Snatch Land Rovers in Iraq because they wanted to protect other soldiers, and improve the safety of servicemen and women abroad.
"It's very important to have independent scrutiny of decisions made by the MoD. War is risky, and therefore you have an obligation to reduce risk and mitigate the threat."
Martyn Day from the law firm Leigh Day, which has also fought several high profile cases against the MoD, labelled the report "biased".
He said his firm would argue that it is "the breaking of laws which poses the greatest threat to those who risk all for their country.
"This includes not training or equipping soldiers adequately before putting service personnel into a combat zone."
He added: "Greater adherence to the laws, both domestic and international, are the only way in which the MoD's litigation will decrease."
The arguments in the report echoed those of the Secretary of State for Defence, Philip Hammond, who remains concerned about the challenge to combat immunity arising from recent court judgements, which could make it more difficult for troops to carry out operations in the future.
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