UK Supreme Court rules no human rights protections for soldiers abroad

UK Supreme Court rules no human rights protections for soldiers abroad

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[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF; press summary, PDF] Wednesday that the 1998 Human Rights Act, which incorporates the European Convention on Human Rights (ECHR) [texts] into English law, does not apply to armed forces on foreign soil and that a soldier’s family does not have an automatic right to an investigation into cause of death in the battlefield. The case involved Private Jason Smith, who died of heat stroke in Iraq after making several complaints to his commanding officers. Smith’s mother filed suit against the government, claiming that the UK owed her son a duty to respect his right to life, which was protected by Article 2 of the ECHR, and that the government must launch an investigation into the alleged breach of that right. The UK Court of Appeal held that Smith had been protected by the Human Rights Act at all times and ordered a new investigation. The Supreme Court overruled the decision, holding that the act does not extend to troop operations abroad. The court held that, since Smith died outside of the UK’s Iraqi army base, he was on foreign soil and was not protected by human rights. Justice Lord Alan Rodger noted that the lower court’s ruling would require the government to protect soldiers from risks caused by conflict or face potentially costly lawsuits:

While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable. … To suggest that these deaths and injuries can always, or even usually be seen as the result of some failure to protect the soldiers … is to depreciate the bravery of the men and women who face these dangers.

Lawyers for the plaintiff criticized [Reuters report] the court’s ruling, stating that it was “artificial” to assert that rights can be protected on a UK armed forces base abroad but not off the base. The UK Ministry of Defense [official website] welcomed the ruling [press release], stating that the same legal considerations cannot be applied to both the battlefield and non-combat situations.

Private Jason Smith, a member of the Territorial Army since 1992, was mobilized for service in Iraq in June 2003. After spending a short time in Kuwait to become acclimated with the weather, he was sent to a Camp Abu Naji, a UK base in Iraq. He was then sent to an athletics stadium approximately seven miles from the base. On August 9, Smith reported he was feeling sick to his commanding officers, complaining of the heat, which exceeded 120 degrees Fahrenheit during the daytime in the shade. Over the next few days he was employed in various duties off the base. On the evening of August 13, Smith collapsed at the stadium and died of heat stroke. An investigation into Smith’s death found that it was caused by a serious failure to address the difficulty he had in adjusting to the climate. Smith’s mother than commenced proceedings to open a new investigation into human rights abuses under the ECHR.