Britain’s Supreme Court has overturned a ruling that soldiers are protected by human rights laws at all times, reversing a decision which the government had said could hamper military decision-making.
Lawyers for the Ministry of Defense argued that earlier court rulings risked obliging it to protect soldiers from risks caused by conflict, or face potentially costly lawsuits. Britain has 9500 troops serving in Afghanistan and a rising death toll there has prompted calls for a commitment to withdraw them as soon as possible, Reuters reports.
Six of the nine judges who heard the case overturned two lower court judgments relating to the death of Jason Smith in Iraq while serving with the volunteer reserve Territorial Army in 2003, Britain’s Press Association reported. The court was asked to rule on whether a British soldier on military service in Iraq was subject to UK jurisdiction and covered by human rights laws at all times or only when on a British military base or hospital. It chose the latter.
Lawyers who represented Smith’s mother called Wednesday’s ruling astonishing and said it risked undermining the morale of serving soldiers. “It is artificial to assert that rights can be protected on base but not off base,” said Jocelyn Cockburn of Hodge Jones & Allen. “Whose jurisdiction are our soldiers under when they are off base in Afghanistan; Afghan jurisdiction or some sort of legal ‘no-man’s land’? Either must be a matter of serious concern to our servicemen and women,” she added.
However, the defense establishment welcomed the decision. “Common sense has prevailed and it is of course right that Commanders’ orders given in the heat of battle should not be questioned by lawyers at a later date,” Defense Secretary Liam Fox said in a statement. “It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations,” Fox added.
Smith told medical staff he was feeling unwell due to high temperatures in Iraq – sometimes over 50 Celsius (122F) before reporting sick in August the same year. He was found lying face down and taken to a hospital but had suffered a cardiac arrest and was pronounced dead. Smith’s family had sought a judicial review of the case after claiming they were denied access to crucial documents during an initial inquest.
A court reviewing the case decided the European Convention on Human Rights applied to all soldiers serving outside the UK whether or not the death took place on an army base. An Appeal Court judgment last year that the Human Rights Act should apply wherever troops were involved — now overturned by Wednesday’s Supreme Court ruling — was criticized for making life more difficult for battlefield commanders.