By Elizabeth A. Conger
Impunity Watch, Europe Desk
LONDON, England – The British government has asked a panel of Supreme Court justices to overturn a landmark ruling granting UK troops serving abroad the protection of human rights laws. The ruling, which stated that British soldiers abroad must be protected by the Human Rights Act when fighting outside their bases, emerged from a case involving the death of Scottish Private Jason Smith in Basra, Iraq. This ruling effectively extended to troops the right to sue over decisions made on the battlefield.
The Ministry of Defense (MoD) has stated that it is not possible to guarantee rights under the European Convention to British soldiers on duty anywhere in the world. Representing the MoD, James Eadie of the Queen’s Counsel (QC) said: “Effective and faithful application of the convention means that not only must they have exclusive legal and physical control over persons who benefit from it, but also legal and physical control over both the area of its application and over those other persons within that area.”
He said further that this would impose an obligation on the UK to ensure that British soldiers could “enjoy convention rights without hindrance, even from those Afghans over whom the UK has no legislative or practical control and where the territory is not controlled by the UK.” Eadie argued that the imposition of a “legal duty of care” would create a disproportional risk that decision making by the military would be more “cumbersome” and result in less effective military leadership and tactical decision-making.
Retired Major-General Patrick Cordingley who commanded the Seventh Armoured Brigade in the Gulf War said: “Life is hugely complex in battle situations and commanders cannot be expected to have to worry about every aspect of the Human Rights Act once they’re engaged in operations.”
Private Smith served with the Territorial Army and was deployed to Iraq in June 2003. He repeatedly told medical staff that the was feeling ill due to high temperatures, and reported sick in August of 2003. He was found lying face down and was taken to a hospital, but had sustained cardiac arrest and was pronounced dead.
Photo: Private Jason Smith and his niece. / Source: Times Online
His mother, Catherine Smith, began legal proceedings after she was initially denied access to documents during an inquest into her son’s death. After struggling seven years to secure a more thorough investigation into her son’s death and to achieve greater protection of soldiers’ rights, the Court of Appeal finally ruled in her favor last May.
At the inquest, Andrew Walker, the assistant deputy coroner of Oxfordshire said that Smith’s death was caused “by a serious failure to recognize and take appropriate steps to address the difficulty that he had in adjusting to the climate.”
The High Court ruled in Smith’s case that soldiers on British military bases or hospitals are covered by the Human Rights Act. Furthermore, Justice Collins ruled that a state might be in breach of its obligation to ensure the human rights of soldiers if it could have taken steps to avoid or minimize a known risk to human life but neglected to do so.
The Court of Appeal took the High Court’s ruling further and argued that as British soldiers were subject to British jurisdiction wherever they went, the link between British soldiers and the UK extended beyond beyond British military bases and hospitals abroad.
Smith’s attorney, Jocelyn Cockburn, responded to the Government’s challenge to the Court of Appeal ruling saying: “How can it be right for servicemen and women to lose their human rights protections when they are sent abroad to fight on our behalf?”
Cockburn referred to Eadie’s claims that the ruling would render the military ineffective as “scaremongering,” and said that the Human Rights Act required that “reasonable steps” be taken by the government to protect the lives of British soldiers abroad. She said: “I don’t think a court would second guess in any circumstances what a commander decides to do in the heat of battle.” She added: “The issues that could be affected are military planning and the putting in place of, and adhering to, systems to protect soldiers.”
The ruling by the Court of Appeal also requires coroners to conduct more probing inquests in the the causes of death of British troops stationed in Iraq and Afghanistan. It is speculated that this requirement will likely result in further revelations regarding the failure of military equipment and troop training.
Cockburn stated: “One can only wonder whether we would be hearing the constant complaints of lack of equipment for service personnel if the government had recognized their ‘human rights’ from the start. Rather than appealing this case the Secretary of State [Robert Ainsworth] should be prioritizing the safety of his troops.”
The Supreme Court justices are scheduled to hear attorneys representing Catherine Smith, the Equality and Human Rights Commission, and the Oxfordshire Coroner during a three-day hearing. The outcome of the hearing will impact future inquests into the deaths of soldiers.
Mrs. Smith told The Times: “Jason’s life would have been really wasted if I do not keep this going . . . Soldiers have got a right to life. They are fighting to keep our country safe.”
For more information, please see:
BBC – UK troops human rights ruling challenged by government – 15 March 2010
The Guardian – Supreme court considers UK soldiers’ right to sue over military missions – 15 March 2010
The Telegraph – Government challenges court ruling to protect human rights of soldiers – 15 March 2010
The Times Online – Giving soldiers human rights in war zones ‘will hamper battlefield commanders‘ – 14 March 2010