The 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 Defence argued that earlier court rulings risked obliging it to protect soldiers from risks caused by conflict, or face potentially costly lawsuits.
Britain currently has 9,500 troops serving in Afghanistan and a rising death toll there has prompted calls for a commitment to withdraw them as soon as possible. Six of the nine judges who heard the case overturned two lower court judgments on Wednesday relating to the death of Jason Smith in Iraq while serving with the volunteer reserve Territorial Army in 2003. 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 declared that the ruling was astonishing, saying 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.
Smith told medical staff he had been feeling unwell due to high temperatures in Iraq - sometimes over 50C - 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 that the European Convention on Human Rights applied to all armed forces personnel serving outside the UK whether or not the death took place on an army base. An Appeal Court judgement last year that the Human Rights Act should apply wherever troops were involved - now overturned by today's Supreme Court ruling - had been accused of making life more difficult for battlefield commanders.
