Sending Soldiers To War Without Protection
Sending soldiers out to war without protection
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The Supreme Court made a surprise judgement last night when they ruled that soldiers in the battlefield were not protected by the Human Rights Act 1998.
The case came to court when the mother of Private Jason Smith died in Iraq in 2003 due to heat stroke. Private Smith had joined the Territorial Army in 1992 and was mobilised for service in Iraq in June 2003. Before actually reaching Iraq, Private Smith spent a short period of time in Kuwait, acclimatising to the weather. By the time Private Smith was sent to Iraq in August of 2003, the temperature in the shade was 50 degrees centigrade. On the 9th of August, Private Smith reported feeling ill and complained about the heat. His concerns were ignored and he was sent out on various duties and tasks for the next few days. In the early evening of the 13th of August, Private Smith collapsed and died of heat stroke.
An inquest was ordered and found that the death of Private Smith was caused by a serious failure to address the difficulty he had in adjusting to the climate.
The mother of Private Smith, along with her solicitor commenced legal proceedings. Mrs Smith argued that the United Kingdom owed her son a duty to respect his right to life, a right that is enshrined in article 2 of the European Convention on Human Rights (ECHR). Based on this argument, Mrs Smith further argued that the inquest had to satisfy the procedural requirements of an investigation into the alleged breach of a right.
The Secretary of State denied that a further inquest was required as per the facts of the case. Furthermore, the Secretary of State commented rather confusingly, that a soldier who was on military service abroad was subject to the protection of the Human Rights Act 1998 and when outside his base but did admit that Private Smith was not in this situation at the time of his death and was within the U.K. jurisdiction, as he was on the base at the time.
Mrs Smith and her solicitor were successful in bringing the case to the High Court, but the government appealed. The case then went forth to the Court of Appeal, who again held that Private Smith had been protected by the HRA 1998 and that a fresh inquest should be held. But again the government was unwilling to accept this judgement, and so the case landed in the Supreme Court.
The Supreme Court however did allow the appeal on the jurisdiction issue with only three out of the nine judges dissenting (Lady Hale, Lord Mance and Lord Kerr). With regard to the inquest issue, the Supreme Court unanimously dismissed the appeal meaning that the government will have to order a fresh inquest.
The final judgement held that the Human Rights Act 1998, did not apply to armed forces on foreign soil and that there did not exist an automatic right for it to do so.
The Reasoning Behind the Judgement.
Lord Phillips, the President of the Supreme Court, stated that the jurisdiction of the Human Rights Act 1998 was essentially a territorial jurisdiction but could be extended in exceptional circumstances. The difficulty, however occurs when defining these exceptions. With regard to the intentions of the Contracting States, it seems rather unlikely that these States intended the applicability of the Human Rights Act when millions of troops have been deployed abroad.
Another judge, Lord Collins, did state that there is an observed practise, accepted by the Strasbourg court, of situations where jurisdiction could be extended.
These views were the accepted and majority views of those sitting judges. But a contrasting view, of Lord Mance, considered that as an occupying power in Iraq, the UK had under international law and almost absolute power over the safety of its forces. Lord Kerr agreed with this view.
If the State could export its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual.
Solicitors and barristers have always found it difficult to successfully challenge the government on issues revolving around human rights. This shock decision is yet another instance of the Human Rights Act being set aside by the courts when it is inconvenient for it to be applied.
by: Antonia Torr
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