Human rights on the edge of war
The Supreme Court’s ruling on whether or nor the Human Rights Act applies to armed forces personnel serving abroad represents a missed opportunity to clarify the extent of the obligation which the State owes to its servicemen when it sends them abroad in the service of their country. No doubt unwittingly, the effect of the judgment also conveys the impression that soldiers are cut off from the State and that, for army operations abroad, all is fair in war.
An uncomfortable twist of logic
The Human Rights Act protects soldiers when they are at a military base or at a military hospital. It is a bizarre and uncomfortable twist of logic to say that once the soldier steps outside his base or the door of the hospital, in the service of his country, he is no longer entitled to the same legal protection. Yet that is precisely is what the Court has decided today.
The State’s obligations
The State is responsible for sending the soldier out to battle. Legal recognition that the State owes that soldier various obligations is unsurprising. British soldiers are also owed a duty of care by the army whether they are in Iraq , Afghanistan or within the United Kingdom . They owe a duty of care to prisoners, for example, within their control. Legal obligations are also owed as occupying forces to persons within the control of that occupying force. Critically, members of the armed forces remain under the legislative, judicial and executive authority of the United Kingdom , whether serving within or outside United Kingdom territory. The legality of a soldier’s presence in Helmand or Baghdad depends entirely on being subject to UK laws and jurisdiction. The man in the street may ask why it is permissible for a soldier to be court-martialled for an act he is alleged to have committed whilst in Iraq , but not be entitled to the protection which the Human Right Act provides every other subject for a fair trial.
The right to proper equipment?
The Human Rights Act is a valiant piece of legislation which has sought to give protection to the most vulnerable and disadvantaged in society. It also protects the average man in the street from State abuse or exploitation. It gives him, amongst other things, the right to a fair trial, the right to freedom of religion or expression, the right and the right to a private life. It imposes a requirement not to discriminate in the provision of any of those rights. Importantly, in the case of armed personnel, it imposes an obligation to establish a proper framework of legal protection in order to protect life to the greatest extent reasonably practicable. In turn, this requires the State to hold an effective public investigation into any death occurring in circumstances where that obligation may be called into question, for example where the State has failed to provide functioning or appropriate equipment.
A soldier putting himself at the service of his country obviously runs the risk of losing his life in battle. He does so for his country. Giving him legal rights protection does not entail dissecting command decisions about the rights and wrongs of war. Nor does it mean, necessarily, that the legality of war can be challenged in this forum. It does however mean that soldiers, for example, have the right to be sent to Iraq and Afghanistan properly equipped and kitted out, as well as properly trained. He has the right to be fairly tried for criminal acts he is alleged to have committed. He has the right to a private life, be he black, Asian or white. If that is the position in the military base, why should the State not be required to ensure that the soldier’s life is protected to the best of its ability outside the military base?
Removing human rights from the battlefield
Moreover, by telling soldiers that their rights and freedoms are not protected abroad, the impression is given that human rights suddenly don’t matter on the battlefield. With the litany of alleged abuses said to have been committed by the British army, it is a shame that one unintended impact of this judgment may be to remove the language and understanding of human rights even further from the forefront of army operations. In order for there to be full accountability by British troops, the State must ensure that they are not hung out to dry.
There is no doubt that military commanders will be celebrating this victory. They will say that any extension of human rights protection to deployed forces will limit their ability to act in the vagaries of war. But, the exigencies of any wartime situation are always a relevant consideration in whether there has been a violation of Convention rights. As the Court of Appeal below recognised, rights and freedoms can be divided and tailored.
Can Strasbourg provide full accountability?
The Supreme Court obviously was troubled by the extent to which it was being asked to usurp legislative decision-making in extending human rights protection to forces outside United Kingdom territory. The European Court of Human Rights will rule on the same issue, in a different case, before the year ends. Rightly or wrongly, servicemen and women are sent out in the name of their country. British troops must be fully accountable in their own actions abroad, but also fully accounted for.
July 1st 2010