The supreme court's ruling will be greeted with dismay at the MoD

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Created on Monday, 24 June 2013 00:00

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The supreme court's ruling will be greeted with...

The families of the soldiers killed in Iraq have won an important victory. But it is far from end of their fight for compensation

Joshua Rozenberg

The supreme court's ruling in what has become known as the Snatch Land Rover cases is an important victory for the families of British soldiers killed in Iraq. But it is far from being the end of their fight for compensation.

The families' most important success was to establish that the human rights convention applies to soldiers serving on foreign battlefields. Article one of the convention requires the United Kingdom to secure the rights and freedoms of "everyone within their jurisdiction".

The Ministry of Defence (MoD) had argued that Iraq was outside the jurisdiction of the UK government. But the human rights court has previously ruled that jurisdiction can exist whenever a state exercises authority and control over an individual.

In the light of that ruling, the supreme court overturned one of its own earlier decisions and previously ruled that the convention applied to members of the armed forces when they were serving outside the UK.

This is an important advance in the law but one that can be seen as the logical extension of the duties on British service personnel abroad to respect both English law and international humanitarian law. If troops have duties, they should have rights.

How far those rights extend is a very different question. The soldiers' families complained that there had been a breach of article two of the convention, the right to life.

This says: "Everyone's right to life shall be protected by law." It requires states to establish laws that will protect life to the greatest extent that is reasonably practicable. But it does not prevent governments from sending properly equipped troops into battle, even though the risk that they will be killed is inherent in what they do.

The supreme court recognised that subjecting the operations of the military while on active service to the close scrutiny that might be appropriate in non-combat activities might damage their effectiveness and even put democracy at risk. But each case had to be decided on its own facts.

Giving the leading judgment, Lord Hope said it was far from clear that families would be able to prove that there had been a breach of article two. Military commanders were entitled to a wide measure of discretion.

But that was no reason for throwing out the claims at this early stage, as the MoD had argued. So the court allowed the cases to go ahead.

The third issue before the court was whether the MoD could rely on what's called "combat immunity" to defeat claims of negligence.

This claim relates to a "friendly fire" incident involving British Challenger tanks that caused the death of one soldier and serious injuries to two others. The claimants argue that these consequences could have been avoided if the tanks had been properly equipped and the soldiers who opened fire on them had been properly trained. Again, the court refused to strike out the families' negligence claims.

The supreme court's majority ruling is likely to be greeted with dismay at senior levels within the MoD. Ministers will have to decide whether to settle these claims, and others arising from similar incidents, or go to court and risk further adverse rulings.

At a broader level, the MoD will have to ensure that troops are properly equipped for combat missions. That will inevitably take up scarce resources at a time of financial restraints. Military commanders may argue that this will reduce their operational effectiveness.

But no commander wants to expose troops to avoidable risks. The supreme court has made it clear that officers will be allowed a wide measure of discretion in battlefield deployments.

With goodwill on all sides - and adequate resources - it should surely be possible to reach a compromise that allows troops to do their duty without exposing them to avoidable risks. That must be good for morale.

This judgment requires troops to be properly equipped for combat. It does not require commanders to go to war with one hand behind their backs.

Source: The Guardian UK, 19 June 2013