CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

In July 2005 six former UK Chiefs of the Defence Staff, all now members of the House
of Lords, specifically attacked the UK government’s handling of the issue of soldiers’
accountability and culpability in the conflict in Iraq 123 . Additionally, elements of the
UK media 124 suggested that soldiers were placed at risk and unable effectively to carry
out their mission because of an undue danger of prosecution. Clearly a balance must be
struck between soldiers’ accountability and culpability under the law and their ability to
do their job, which is, at essence, the delivery of (up to and including lethal) force to
achieve a political end.
Although today’s changed operational environment offers additional challenges, there is
nothing new (at least not in modern history) in soldiers being held to account under the
law for their actions. A pertinent historical example is provided by the so-called
‘Boston Massacre’ of 1770. It is a useful example because it illustrates a number of
points relevant to the contemporary debate. The incident arose when British soldiers
guarding the Boston Customs House were confronted by a mob. In the confusion of the
mêlée that ensued, shots were fired by some of the soldiers and five civilians, unarmed
(at least not with firearms), were killed. The young officer in command of the soldiers,
Captain Preston of the 29 th Foot, was charged with murder. In arguments that resonate
today there were claims that his trial was politically motivated – he was to be a
scapegoat to appease rebel sentiment. Defended by, despite his separatist sentiments,
future President John Adams, Preston was acquitted because it could not be proved that
he ordered his men to open fire (indeed, eye-witnesses avowed that he did not). Eight
soldiers were then tried for murder; if no order had been given then they acted of their
own accord and illegally. Adams defended them, too, and six were acquitted. The
remaining two were convicted of manslaughter and claimed ‘benefit of clergy’ – an
arcane practice that placed them outside the jurisdiction of civil punishment but required
instead that they be branded on the hand as a mark of shame.
What points does this example illustrate? Firstly, the key point here, that it is not a new
issue that soldiers be held to account for their use of force, especially in what might
even then have been termed asymmetric warfare. Secondly, then as now there were
those who saw such accountability as politically motivated and, then as now, there were
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