bobdina
06-30-2010, 12:06 PM
Supreme Court ruling: British soldiers abroad 'not protected by human rights laws'
The country's highest court has quashed a landmark ruling that British soldiers serving abroad are protected by human rights laws at all times.
Published: 10:10AM BST 30 Jun 2010
Supreme Court ruling: British soldiers abroad 'not protected by human rights laws'
James Eadie QC, representing the Ministry of Defence, had told the March hearing it would never be possible to guarantee rights under the European Convention to soldiers on duty wherever they are in the world.
"Effective and faithful application of the Convention means that not only must the State 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.
"The Court of Appeal's approach, if correct, would impose an obligation upon the UK to be able to ensure that a British soldier on duty in say a market in Kabul, Afghanistan, can 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."
Mr Eadie said the reasoning of the appeal judges could mean that the State had a special duty to protect soldiers from all risks, including those caused by conflict.
"The imposition of some form of legal duty of care would create a major and disproportionate risk that military decision-making would be made more cumbersome and would be skewed in the light of it."
He said it could lead to commanders becoming less effective in tactical decision-making and weaken operational effectiveness.
Pte Smith, who lived in Hawick, Roxburghshire, was deployed in Iraq in June 2003. He repeatedly told medical staff he was feeling unwell due to high temperatures - sometimes over 50C (122F) - before reporting sick in August the same year.
He was found lying face down and taken to hospital but had suffered a cardiac arrest and was pronounced dead.
The Government conceded at the High Court hearing that soldiers on UK military bases or hospitals do come within the Human Rights Act but Mr Justice Collins ruled that a state might be in breach of its human rights obligations if it could have taken steps to avoid or minimise a known risk to life but did not do so.
Court action was begun by Pte Smith's mother, Catherine, after she was initially denied access to crucial documents at an inquest into her son's death.
Andrew Walker, the Assistant Deputy Coroner for Oxfordshire, recorded at the inquest in November 2006 that Pte Smith's death was caused "by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".
The justices also heard from lawyers representing Mrs Smith, the Equality and Human Rights Commission and the Oxfordshire Coroner during the three-day hearing.
Jocelyn Cockburn, who represented Mrs Smith in her case at the Supreme Court, said the decision on jurisdiction was "shocking".
"If you asked British soldiers whose jurisdiction they are under, they would say the United Kingdom. They are bound by and can rely on its laws, wherever they serve in the world. They are sent abroad by the Queen (under the Royal Prerogative) to serve the people of the United Kingdom.
"Despite this, the Supreme Court has held that soldiers leave the UK jurisdiction, insofar as the Human Rights Act is concerned, when they leave a UK army base. It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding.
"It is artificial to assert that rights can be protected on base but not off base. It is impossible to see how the physicality of a base (whether that be a camp in the desert or other military installation) makes any difference to the question of whether a UK soldier is subject to UK jurisdiction. Is the Court saying that the moment a soldier steps over the line in the sand and is 'off-base' he has no 'rights'?
"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.
"Politicians frequently complain about judges being too political. Some would say that this is a case where that has worked in the Government's favour. I have heard some irrational arguments put forward by the Ministry of Defence and the military elite - including the assertion that human rights protections will actually make soldiers less safe."
She said that ultimately the issue would have to be tested in the European Court of Human Rights in Strasbourg.
Lord Rodger, one of the justices who allowed the appeal, said: "Any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his Article 2 right to life is not only to mistake but - much worse - to devalue what our soldiers do."
He said they were not only exposed to the risk of death or injury, similar to other jobs, they were deployed in situations where opposing forces were trying to kill them.
"While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable," he said.
He added: "At present our troops are exposed to great dangers in Afghanistan. Inevitably, many have been killed and many more have been wounded.
"To suggest that these deaths and injuries can always, or even usually be seen as the result of some failure to protect the soldiers, whether by their immediate companions or by more senior officers of generals or ministers, is to depreciate the bravery of the men and women who face these dangers."
One of the dissenting justices, Lady Hale, said all Mrs Smith wanted was a proper inquiry into the death of her son in the hope that other families would not suffer as she has.
This inquiry had been held up because, although the Ministry of Defence conceded that her son was covered by human rights laws as he died at a UK administered base, both the High Court and Court of Appeal decided "more than they needed to decide".
She said she agreed with another of the dissenting justices, Lord Mance, that the Armed Forces of a state are within its jurisdiction wherever they may be.
http://www.telegraph.co.uk/news/newstopics/politics/defence/7862765/Supreme-Court-ruling-British-soldiers-abroad-not-protected-by-human-rights-laws.html
The country's highest court has quashed a landmark ruling that British soldiers serving abroad are protected by human rights laws at all times.
Published: 10:10AM BST 30 Jun 2010
Supreme Court ruling: British soldiers abroad 'not protected by human rights laws'
James Eadie QC, representing the Ministry of Defence, had told the March hearing it would never be possible to guarantee rights under the European Convention to soldiers on duty wherever they are in the world.
"Effective and faithful application of the Convention means that not only must the State 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.
"The Court of Appeal's approach, if correct, would impose an obligation upon the UK to be able to ensure that a British soldier on duty in say a market in Kabul, Afghanistan, can 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."
Mr Eadie said the reasoning of the appeal judges could mean that the State had a special duty to protect soldiers from all risks, including those caused by conflict.
"The imposition of some form of legal duty of care would create a major and disproportionate risk that military decision-making would be made more cumbersome and would be skewed in the light of it."
He said it could lead to commanders becoming less effective in tactical decision-making and weaken operational effectiveness.
Pte Smith, who lived in Hawick, Roxburghshire, was deployed in Iraq in June 2003. He repeatedly told medical staff he was feeling unwell due to high temperatures - sometimes over 50C (122F) - before reporting sick in August the same year.
He was found lying face down and taken to hospital but had suffered a cardiac arrest and was pronounced dead.
The Government conceded at the High Court hearing that soldiers on UK military bases or hospitals do come within the Human Rights Act but Mr Justice Collins ruled that a state might be in breach of its human rights obligations if it could have taken steps to avoid or minimise a known risk to life but did not do so.
Court action was begun by Pte Smith's mother, Catherine, after she was initially denied access to crucial documents at an inquest into her son's death.
Andrew Walker, the Assistant Deputy Coroner for Oxfordshire, recorded at the inquest in November 2006 that Pte Smith's death was caused "by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate".
The justices also heard from lawyers representing Mrs Smith, the Equality and Human Rights Commission and the Oxfordshire Coroner during the three-day hearing.
Jocelyn Cockburn, who represented Mrs Smith in her case at the Supreme Court, said the decision on jurisdiction was "shocking".
"If you asked British soldiers whose jurisdiction they are under, they would say the United Kingdom. They are bound by and can rely on its laws, wherever they serve in the world. They are sent abroad by the Queen (under the Royal Prerogative) to serve the people of the United Kingdom.
"Despite this, the Supreme Court has held that soldiers leave the UK jurisdiction, insofar as the Human Rights Act is concerned, when they leave a UK army base. It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding.
"It is artificial to assert that rights can be protected on base but not off base. It is impossible to see how the physicality of a base (whether that be a camp in the desert or other military installation) makes any difference to the question of whether a UK soldier is subject to UK jurisdiction. Is the Court saying that the moment a soldier steps over the line in the sand and is 'off-base' he has no 'rights'?
"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.
"Politicians frequently complain about judges being too political. Some would say that this is a case where that has worked in the Government's favour. I have heard some irrational arguments put forward by the Ministry of Defence and the military elite - including the assertion that human rights protections will actually make soldiers less safe."
She said that ultimately the issue would have to be tested in the European Court of Human Rights in Strasbourg.
Lord Rodger, one of the justices who allowed the appeal, said: "Any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his Article 2 right to life is not only to mistake but - much worse - to devalue what our soldiers do."
He said they were not only exposed to the risk of death or injury, similar to other jobs, they were deployed in situations where opposing forces were trying to kill them.
"While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable," he said.
He added: "At present our troops are exposed to great dangers in Afghanistan. Inevitably, many have been killed and many more have been wounded.
"To suggest that these deaths and injuries can always, or even usually be seen as the result of some failure to protect the soldiers, whether by their immediate companions or by more senior officers of generals or ministers, is to depreciate the bravery of the men and women who face these dangers."
One of the dissenting justices, Lady Hale, said all Mrs Smith wanted was a proper inquiry into the death of her son in the hope that other families would not suffer as she has.
This inquiry had been held up because, although the Ministry of Defence conceded that her son was covered by human rights laws as he died at a UK administered base, both the High Court and Court of Appeal decided "more than they needed to decide".
She said she agreed with another of the dissenting justices, Lord Mance, that the Armed Forces of a state are within its jurisdiction wherever they may be.
http://www.telegraph.co.uk/news/newstopics/politics/defence/7862765/Supreme-Court-ruling-British-soldiers-abroad-not-protected-by-human-rights-laws.html