An appeal court has confirmed that a soldier's fundamental Human Right "to Life" must be respected by his country, even when he is sent into battle abroad. The ruling means that his superiors must avoid or minimise the risk to him. This leaves the families of those killed because, for example, of the lack of adequate armor on patrol vehicles able to sue for negligence. (A further appeal against this decision will be lodged)
Unfortunately for such US personnel or their families, this was a decision of the British Court of Appeal although it provides an interesting precedent and some contrasts between the way in which Human Rights law has been interpreted.
The background of this case is the death in Iraq of Private Jason Smith in Iraq in 2003. He was serving in the Territorial Army (nearest US equivalent is the National Guard or reserves) in a base in Southern Iraq in an abandoned stadium. The daytime temperatures reached 60C (140F) and Pte Smith had complained of feeling ill. Air conditioning systems were available but had not been installed at the base and the standing instructions were to drink half that recommended in those temperatures. Smith eventually died of heat stroke brought about by these conditions.
Instead of a simple "death caused by ...", the coroner, Andrew Walker, returned what is called a "narrative verdict" which goes into far greater detail and can assign blame.
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."
A British Army inquiry claimed that Smith died because he was overweight but the family claimed that he was fit. They sought a "judicial review" to challenge the conclusions of the inquiry and to seek compensation for his death, in addition to their seeking better treatment and information from the Ministry of Defence at inquests. They were joined by the government's own Equality and Human Rights Commission which sought to clarify the rights of British forces and the procedures to be used for inquirys into their deaths. For their part, the Ministry of Defence sought to restrict the ability of coroners to make critical comments about government policy in verdicts. (Andrew Walker had been a thorn in their sides for not doing a simple rubber stamp job.)
The case was considered under the Human Rights Act which enshrined the European Convention on Human Rights into domestic law. Previously British courts could not take the ECHR into account when reaching its decisions which led to the UK being taken frequently to the European Court of Human Rights in Strasborg. Article 2 of the HRA provides for an independent inquiry in the event of a death.
One interesting facet of this was that all sides accepted that the ECHR applied because the death occured in a British base which, because of a previous ruling, is taken to be under UK law. This contrasts with the status of Guantanamo Bay in US law.
In his judicial review last year, Mr Justice Collins took this further. While a complete "duty of care" could not be applied to soldiers on patrol or in battle, they did not lose all of their rights under the HRA and the ECHR.
For example, sending a soldier out on patrol with defective equipment might be a breach of Article 2 of the Human Rights Act - the right to life, which in the event of death requires an independent inquiry.
The Government appealed this decision to extend protection outside of bases and the Court of Appeal gave its decision today to uphold the judgment of Mr Justice Collins. In view of the potentially serious consequences of this decision, they gave the Ministry of Defence leave to appeal to the House of Lords provided that they pay the costs of the other parties.
The decision does not of course mean that soldiers will not be killed in battle but should mean that they ought to be provided with the best protection (in the broadest sense) practically available.
The (Equality and Human Rights) commission's group legal director, John Wadham, said: "Our service personnel are sometimes required to lay down their lives for this country. In return, we should afford them the same human rights protection as every other citizen."
While accepting that the lives of troops in combat situations could not be protected at all costs, he said: "We can do our best to ensure they remain as safe as possible".
http://news.bbc.co.uk/...