UK govt can limit troops' rights

2010-06-30 15:35

London - Britain's Supreme Court on Wednesday 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 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 relating to the death of Jason Smith in Iraq while serving with the volunteer reserve Territorial Army in 2003, Britain's Press Association reported.

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.

Prosecutors slam decision

Lawyers who represented Smith's mother called Wednesday's ruling astonishing and said 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 was feeling unwell due to high temperatures in Iraq - sometimes over 50°C 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.

Not common sense

A court reviewing the case decided 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 Wednesday's Supreme Court ruling - had been accused of making life more difficult for battlefield commanders.

"To apply the Human Rights Act in a warzone flies in the face of common sense," Liam Fox, now defence secretary, said at the time when he was the shadow secretary.

"Our troops and commanders have enough to worry about on the battlefield without worrying about where the next legal attack will come from," he added.