The Supreme Court ruled this week that Article 1 of the European Convention on Human Rights (ECHR) does not extend to members of the UK Armed Forces on off-base operations overseas.
The judgment follows an appeal by the Ministry of Defence (MOD) following the case brought by Catherine Smith, mother of Private Jason Smith, a reservist who died of heat stroke while on duty in Iraq in 2003.
Mrs Smith contended that her son’s right to life had been breached by the failure of the Government to take steps to prevent his death and that his inquest did not meet the standard of investigation required by Article 2 (right to life) of the ECHR.
Mrs Smith won her case at the High Court and the Court of Appeal. However, the MOD lodged an appeal to the Supreme Court and argued that the decisions of military commanders made during overseas operations were non-justiciable in the courts on human rights’ grounds.
In the judgment, the Supreme Court judge Lord Collins said:
“It is hardly conceivable that in 1950 the framers of the [ECHR] would have intended [it] to apply to the Armed Forces of Council of Europe states engaged in operations … outside the contracting states.”
Whilst Lord Hope said:
“It is one thing … to recognise a Member State’s jurisdiction over persons within an area beyond the frontiers of the Member State over which their Armed Forces have established total and exclusive de facto control such as a military base, a military hospital or a detention centre … It is quite another to extend that jurisdiction to areas outside premises of that kind over which the Armed Forces may be operating but over which they do not have exclusive control.”
Commenting on the ruling, the Chief of the Defence Staff, Air Chief Marshal Sir Jock Stirrup, said:
“I am pleased that the Supreme Court has upheld the Government’s appeal. This outcome is not about denying rights to our people, it is about ensuring that we have a clear and workable set of rules under which they can carry out their demanding and dangerous work.
“Within that context, commanders at all levels are committed to the safety of the men and women they lead. We will continue to do everything we can to keep our people from harm by providing the best possible equipment and training.”
The Defence Secretary, Dr Liam Fox, said:
“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. It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations.”
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