The judgment of the Supreme Court of the UK in Smith and others v Ministry of Defence has upset the Secretary of State for Defence who is now talking about entering into a derogation from the European Convention on Human Rights or even a complete withdrawal - Daily Mail Saturday 22nd June. Here are the judgments to which the Minister takes exception:
Smith and Others (Appellants) v The Ministry of Defence (Respondent)
Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant)
Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)
(1) the training offered to troops who are to be deployed to a combat situation and (2) the standard of equipment provided. Will a legal action lie against the Ministry of Defence if either are considered to be inadequate? If so, on what legal basis? A preliminary question is whether the protection of the European Convention on Human Rights extends to troops operating abroad under the command of the British military authorities.
The ultimate outcome of the Supreme Court hearing is that all the claims may proceed for trial. The Supreme Court has NOT held that the government is liable. It may be but that will depend on the outcome of the actual trial of the actions in the High Court.
For another view on these cases see UK Human Rights blog - Rosalind English - "Snatch Rover" case - inviting judges into the theatre of war?"
1. The 'Challenger Claims' - one soldier dead and two injured as a result of friendly fire involving British tanks - alleged failure by the MoD to equip the tanks properly and to give adequate recognition training. MoD argued that these claims should be struck out on the basis of either 'combat immunity' or that it was not fair, just or reasonable to impose a duty of care on the MoD in the circumstances. Held - by a majority - the claims would not be struck out and could proceed to trial.
2. The 'Snatch Land Rover claims' - two soldiers in land rover killed by improvised explosive device. Alleged breach by the MoD of the implied positive duty under Article 2 (Right to Life) of the E Conv HR. MoD argued that these should be struck out as not being covered by the Convention and that, in the circumstances, no duty under the convention was owed to the men under Article 2.
3. The Ellis negligence claims - various allegations of failures on the part of the MoD. MoD put forward similar argument to that in the Challenger claims. Held - by a majority - the claims would not be struck out and could proceed to trial.
In July 2011, the E Ct HR had held in Al-Skeini v UK that six Iraqi civilians killed in Iraq as a result of actions by British forces had the protection of the E Conv HR. The Al-Skeini case formulated a relatively general principle that extra-territorial jurisdiction can exist whenever a State through its agents exercised authority and control over an individual. Therefore, in principle, the protection of Art 2 extended to the soldiers. This aspect of the judgment was reached unanimously.
Policy decisions made at a high command level and things done on the battlefield fell outside the scope of Article 2. However, claims between those two categories might come within Art 2. It is an exercise of judgment given the facts of a particular case. The circumstances in which the various decisions were made had to be inquired into before it could be confidently said whether or not there was a breach of the Art 2 duty. It was far from clear that the claimants would be able to establish such a breach. That was, of course, a question for the judge at the trial of the actions.
It is clear enough from this that the court is NOT purporting to place a judge in the place of either a high policy decision-maker or a battlefield commander but there could be cases where Article 2 had been breached in relation to training and/or provision of adequate equipment.
In the Snatch Land Rover claims we see the E Conv HR offering a line of challenge to the government which would not have been available at common law (action in tort for negligence).
Further discussion of the Article 2 claim at Oxford Human Rights hub
The negligence claims:
The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine.
It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence
The court was here keeping combat immunity within a narrow scope. Equipment procurement decisions taken by the MoD would usually be taken far removed from the pressures of active operations.
The following is from the court's press release:
See UK Supreme Court blog for further interesting comments about the Smith case.
The Secretary of State mentions a possible derogation from the E Conv HR.
- In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
- No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
- Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
Whether that phrase requires an actual war to be lawful under international law is rather unclear. Would an illegal war render every act in pursuance of it unlawful? Mere mention of such questions shows the potential for protracted litigation if there was to be a derogation from Art 2. Whether the Iraq War which commenced in 2003 was lawful continues to be fiercely argued. At the time, the UK government relied on an opinion by the then Attorney-General (Lord Goldsmith QC).
Footnote - The U.K. entered into a derogation following the 9th September 2001 attacks in New York. The derogation related to Article 5(1) (Right to liberty and security) - see The Human Rights Act 1998 (Designated Derogation) Order 2001. This derogation was later removed as a consequence of the House of Lords decision in A (FC) and others v Secretary of State for the Home Department  UKHL 56. See also The Human Rights Act 1998 (Amendment) Order 2005 which removed the derogation. It is a very moot point whether, in 2001, there was actually a "public emergency threatening the life of the nation" but the government stated that there was.