In a landmark ruling, a British High Court judge has ruled that sending soldiers on patrol or into battle with defective equipment could breach their rights under the European Charter of Human Rights.
He was dealing with a case brought about by the death of a Territorial Army (reservist) soldier in Iraq in August 2003. He had died of heatstroke after generators to run air conditioning had been ordered but had not arrived. The coroner criticized this, the inadequacy of the advice given about hydration and the failure to remove him to treat him. During the inquest evidence was given that families had to send out rehydration powders as there were insufficient.
The government had sought "clarification" on whether coroners could make such remarks and have found themselves getting more than bargained for. They are appealing the Human Rights ruling.
The British Territorial Army (TA) are perhaps most similar to National Guards in the USA. They are civilians who get regular annual training and can be called on to serve in emergencies.
This case centers on a Scottish TA soldier and his inquest held in Oxford, England in November 2006. (All inquests are held there as bodies are brought back to a single airbase. The coroner covers this "arrival port".)
Pte Jason Smith, 32, from Hawick, died in August 2003 in Al Amarrah after his body temperature soared to 41.1C.
Deputy assistant coroner for Oxfordshire, Andrew Walker, recorded a narrative verdict.
He said Pte Smith's death was caused by a "serious failure" in not recognising the difficulty he was having in adjusting to the climate.
Mr Walker said: "In my view Pte Smith would not have died if the proper procedures had been followed. He should have been taken out of that environment to be treated."
Like all soldiers, TA units are given medical examinations before they are sent on a tour of duty. Unlike regular Army personnel, they can still be sent on a tour if they fail a medical. Pte. Smith weighed 240lbs which gave him a Body Mass Index (BMI) of 34 or clinically obese. BMI is a notoriously bad indicator of obesity and is never used alone as a bodybuilder with minimal body fat could be classed as severely obese. Smith's family claim he kept fit. Despite its failings, a report from an Army board of enquiry in May 2007 used it to claim obesity and therefore unfitness.
"It is the opinion of the board that Pte Smith's death was caused by a number of factors.
"These were the fact that he was very overweight, his probable lack of fitness, the extreme temperatures and lack of air conditioning."
The report called for tougher medical checks for TA troops being sent out to war zones.
In a separate ruling the Judge, Mr Justice Collins ruled that the families of soldiers killed in action had a right to see army papers relating to their deaths and legal aid to help them get justice. Previous rulings extended Human Rights legislation to British bases (so that Iraqi detainees were covered). This judgement extends it to give partial cover while on operational duties outside those bases. The judge declared that troops were entitle to some degree of protection "wherever they may be".
Jocelyn Cockburn, the solicitor for Pte Smith's family, said the court's decision would be of great significance to the relatives of those serving in the armed forces.
"The judgement means British soldiers sent abroad have the same human rights as any other British citizens and must be properly equipped when sent into battle," she said.
"This is not a threat to national security. The result should be improved military procedures - and a better war-fighting force."
An appeal to a higher court is inevitable as Mr Justice Collins did not define to what degree Human Rights protections extended to soldiers and in what circumstances. If his general principle is upheld, the higher courts would be expected to clarify these points. No doubt the final ruling will be of interest to US lawyers who could argue, for example, that the right to life was being compromised by the provision of inadequate equipment like body armor.