Supreme Court hearings began today (Mon 18 Feb) in three long legal battles by dead soldiers' families against the Ministry of Defence.

The legal issues being considered by the Supreme Court of the United Kingdom include:

  • Whether British soldiers killed during military operations abroad were, at the time of their deaths, within the jurisdiction of the United Kingdom for the purposes of the ECHR.
  • Whether the MoD owed a duty to the deceased soldiers at the time of their deaths pursuant to Article 2 of the ECHR (the right to life).
  • The complaints of negligence are covered by the doctrine of combat immunity.

BAFF has a longstanding interest in human rights issues affecting armed forces personnel.

There is (or should be) no suggestion that decisions made in the heat of battle or under operational pressure should give rise to compensation claims where a death is covered by the no-fault Armed Forces Compensation Scheme. This is the doctrine of combat immunity.

An overly risk-averse attitude can bring its own unintended risks and hamper military operations. That said, the increasing emphasis on force protection in recent years has more to do with political rather than legal pressures.

BAFF has been critical of some of the myths which were peddled following previous court decisions about this issue. For example, briefings that commanders faced "prosecution" under the Human Rights Act were in BAFF's opinion seriously misleading.

The Human Rights Act does not create criminal offences, and the only way individuals could face criminal prosecution due to the ECHR would be if a criminal allegation had only come to light as a result of the duty of investigation.

The BAFF Chairman has previously criticised the prospect of commanders at any level unnecessarily "looking over their shoulder" on operations as a result of anti-human-rights disinformation.

Deaths or injuries caused by systemic avoidable failures may be a different matter.

It is worth remembering that the MOD originally opposed the application of the Human Rights Act at all outwith the territory of the ECHR countries. It has since been established that its protection does apply to persons detained by British forces. Lawyers for the bereaved families argued today that a soldier in a war zone has the same right to have his life protected as a civilian caught up in combat.

These are significant, sensitive issues which deserve the most careful scrutiny by the Supreme Court.

The hearings are expected to continue for up to three days.