Penny Mordaunt’s move to absolve veterans of their crimes in battle will set Britain back decades

Either a country believes in human rights, or it does not. It is a binary, absolute commitment. The new defence secretary, Penny Mordaunt, however, has confirmed that the UK will opt in and out of the European Convention on Human Rights (ECHR), depending on whether it is at war.

In doing so, she has revived a proposal made by Theresa May in 2016, who announced that the government will adopt a presumption that it will take advantage of a right to suspend aspects of the ECHR at times of war.

The point is an obvious one. Human rights are not just for peacetime. It is precisely when countries feel themselves in danger, where its citizens or allies lie in jeopardy, and when its armed forces are in action that human rights are also at risk.

Imagine, for example, if Russia just declared that whatever limited commitment they have to human rights would be suspended for the duration of an occupation of eastern Ukraine. And that we then discovered, quite precisely, that atrocities against unarmed civilians had taken place, or that prisoners of war had been mistreated.

This would be contrary to the rules of war and the various conventions that are supposed to govern conflict, but they would also be violations of human rights. The families of the victims would have that much less redress against the perpetrator of these crimes.

In the age of terror and state terror, the rules of war and rights of civilians (including the media and medical personnel), have not been so little respected in decades, if not centuries. Atrocities have been routinely committed in Myanmar, Iraq, Syria, Yemen and Sudan, to name a few.

The British armed forces are often praised as the best in the world. Though not the largest, they have displayed a professionalism and bravery as anything found elsewhere. They are, though, capable of shortcomings and conduct unbecoming. There are cases during the pitiless wars in Afghanistan and Iraq that were far from the standards the nation expects of its servicemen and women, and there were human rights abuses. It is right that they should be treated as such.

Ms Mordaunt has also, presumably for legalistic reasons, decided that the activities of crown forces in Northern Ireland will not be exempted from the obligations of the ECHR.

Perhaps it is because the British government finds it difficult, for whatever reason, to designate an integral part of the UK as a “battleground”, and also because the potential cases are in the past and it is impossible to make legislation apply retrospectively.

She has made little secret of her desire to act, but our independent judiciary means that she cannot do so. That, too, is the judiciary acting as part of the constitutional infrastructure defending human rights.

In any case, during the long history of the Troubles in Northern Ireland, it was not the activities of soldiers under lethal attack that are now being investigated for abuses of human rights, but cases that cannot be explained as a necessary consequence of being in a conflict, with the fog of war making a confused situation still more morally debatable.

No soldier who fired back at an IRA gunman, or defended themselves under a hail of petrol bombs from a loyalist mob should have to face charges for anything; the facts of cases that may end up in court may well be seen to be very different.

If a British soldier, say, shot an unarmed person in their own home when they did not constitute a threat, then that is a crime by any standards, and should be treated as such, and not some inevitable consequence of conflict. It should be as true in Belfast as in Baghdad, because human rights are universal.

If it seems unjust that former soldiers are “pursued” many decades later about their conduct, then the fault lies in how long it has taken for the system to react to any abuses.

It is also fair to apportion blame fairly between those commanding troops and those following the orders – though the latter is famously no excuse.

It is also wrong that some lawyers apparently acted in an unprofessional manner in the conduct of cases that, eventually, were revealed to have little merit.

The answer to all of those things is simply to ensure that the armed forces are obliged – as they always have been – to try to uphold the highest standards, and to be bound by all the moral and legal obligations that rightly apply, including the ECHR. That is only fair.