Mil News Soldiers have human rights

John A Silkstone

Mi General
MI.Net Member
Jul 11, 2004
MoD facing compensation claims after legal ruling

The Ministry of Defence is facing a flood of compensation claims from families of servicemen who have been killed in Iraq and Afghanistan after a landmark legal ruling that they are covered by human rights laws.

Sgt Steven Roberts who was killed due to a shortage of body armour

A decision by the Court of Appeal on Monday upheld a High Court ruling that troops serving abroad are protected by the Human Rights Act despite the challenge by the Ministry of Defence.

The families of soldiers killed as a result of poor or outdated equipment are thought to be most likely to use the decision against the MoD, including the 37 soldiers who have died in the Snatch Land Rover, which has been criticised as too weak to withstand roadside bombs.

Deaths in other vehicles which have been shown to be vulnerable to roadside bombs, such as Jackal, Viking and Vector, could also leave the MoD liable to prosecution.

Military commanders also fear combat operations could be hamstrung by soldiers using human rights legislation to allow them to question orders.

A former commanding officer of troops in Basra told The Daily Telegraph that the decision would make it extremely difficult to lead "soldiers who are going to question your orders suggesting 'you are breaching my human rights'.

"I think the business of us getting on with the job is going to be extremely difficult. We are going to be spending a long time risk assessing, whereas our energy should be applied to solving the intellectual problems of winning the campaign."

The case was brought to court by the mother of Private Jason Smith who died from a heatstroke in 2003 while working in temperatures of 50C (122F) in Iraq without air conditioning. She who won a decision in April last year that sending soldiers out on patrol or into battle with defective equipment could amount to a breach of their human rights.

Lawyers for John Hutton, the Defence Secretary, mounted an appeal to overturn the ruling. They did not dispute that the state had a responsibility for the well-being of its Armed Forces but to suggest that it might be in breach of human rights on each occasion that it did not provide a soldier with optimal equipment would impose a "wholly unreasonable and disproportionate obligation".

The ruling is likely to be challenged in the House of Lords as the MoD has substantially reservations over how it could impact on current operations.

Bob Ainsworth, the Minister for Armed Forces, said the "disappointing" court decision could have "very serious implications for the ability of our forces – and those of our allies - to conduct military operations overseas".

Reflecting the worry of defence chiefs overseeing operations in Afghanistan the MoD issued a second statement that said during the "heat of battle" in "fast moving operations" Britain "could not secure the rights and freedoms which the Human Rights Act seeks to guarantee".

"We are very concerned by the attempt to insert lawyers into the chain of command in the middle of a battle, which would only create uncertainty, hesitation and potentially greater risk to our people."

Patrick Mercer, a Tory MP and a former infantry commander, said if the ruling was "interpreted sensibly" it should not impact on combat operations. But he warned that it could make commanders "risk averse".

The case was originally brought after Andrew Walker, the outspoken Oxford assistant deputy coroner, recorded that Pte Smith had died as a result of "serious failure" by the military in addressing the climate issues.

A new inquest will now reopen later this year.

Catherine Smith, Pte Smith's mother who brought the case, said: "Jason knew he could die and I accept this. But simple steps that could have been taken - like providing air conditioning units which were available 12 kilometres away - weren't taken and this put his life at risk unnecessarily."

Jocelyn Cockburn, her solicitor, said: "The implications of this judgment are simple - our armed forces now have the same protections as all the rest of us.

"The MoD suggestion that they should lose these protections when on the battlefield is outrageous. Soldiers have the right to know, when risking their lives for us, that we have provided them with all reasonable protection."

Lawyers are uncertain as yet of the ruling's full implications but some believe claims could be brought from any incidents dating back to when the Human Rights Act was introduced in 2000.
The MoD has duties towards its service personnel

Labour's decision to introduce the Human Rights Act has had consequences that were foreseen by everyone except ministers themselves.

The Court of Appeal has ruled that the law, and in particular the "right to life", should apply to soldiers on active service. This is the second time the judiciary has upheld a case brought by the family of Pte Jason Smith, a soldier who died of heatstroke while serving with the Territorial Army in Iraq in 2003. The Ministry of Defence has been given leave to test the law once again in front of the House of Lords, though the views of the lower courts seem unequivocal on this matter.

On the face of it, the idea that the European Convention on Human Rights (ECHR) might apply on the battlefield in Afghanistan seems bizarre. The MoD has accepted that human rights legislation is applicable to soldiers in the UK and at their overseas bases but not to those fighting in the heat of battle. The Ministry's concern is that if the HRA is applicable it could damage the effectiveness of the Armed Forces. It maintains that commanders making split-second decisions in the heat of battle may be paralysed by fear that their decisions will become the subject of legal actions.

Yet whether or not the human rights convention applies, there are certain obligations that the state has towards all its servicemen that long predate the ECHR. It is incumbent upon any government to ensure troops in the field are properly supplied; and commanders should not put their troops in any greater danger than is necessary to fulfill a particular task. In the event of a fatality, if either of those has not been observed, there should not then be any attempt to cover up the circumstances.

We have had instances of lives being lost as a result of poor equipment, including the use of poorly armoured Snatch Land Rovers, and the loss of 14 men in a Nimrod aircraft which was said not to have been airworthy. There have also been instances where the MoD has seemed reluctant to allow the full details of a fatality to come out in an inquest. Under the Human Rights Act, the Government would have to hold a full and open inquiry into the death abroad of any service personnel.

This was a particular grievance of Catherine Smith, the mother of Pte Smith. She complained that there had been no "disclosure at all" after her son's death. The MoD had to be asked at the inquest for information that should have been supplied automatically; it denied there was a report into the death, only to concede that there was one; yet when the family received it, pages were missing and others were blanked out. It is already recognised in law that the state cannot be placed under a positive obligation to protect life if that involves an "impossible or disproportionate burden". Where the MoD has a point is in fearing that operational activities will be hampered by an over-legalistic approach to combat. It is also important that the Armed Forces are not routinely sued for damages by the families of servicemen and women who are killed in action.

The remedy to the judgment is in the MoD's own hands. It is clearly unreasonable for anyone who has volunteered for active service to expect that their lives will be protect in all circumstances and at all times. But it should be proper practice to ensure that the very best equipment is available to those putting their lives on the line for their country and that the grieving families of those killed are given as full account as possible of what happened. When the House of Lords comes to take a definitive position on this matter, the distinction between a duty of care and a right to life should be made clear.
Don't know about the UK, but if my memory serves me correct, one of the things you sign away if you will, is you are no longer a civilian but a military person. A fact, I was always proud of. Yes within all militaries there are problems of these sorts, It part of the risk we accept. Equipment and personal kit shortfalls of course need to be identified and addressed quickly. Some are, others are not. It would seem to me the families would better serve us in launching protests and action against the government that sit on their hands fiddling around with these shortfalls instead of solving the problems.

They and our countries send us to do their bidding, the very least they can do is send us with the right equipment to do the job.
The pucker factor mine proving a road in a Pickup Truck with mine mats and Flak Vests for "protection" is very high, but the job needed to be done. Of course, we had it better than the Indian Engineers Clearing Minefields with pointed sticks line abreast. My stomach did cartwheeels whenever I had to call them in!!!

Makes one wonder who's running the civilian nut house!!

Bob out sal;

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