(19 May 2009) Even before the decision in Secretary of State v R (Smith) had been issued by the Court of Appeal, commentators were explaining how "damaging" it would be to apply human rights "on the battlefield" or "in the heat of battle". This line appealed to some of the media:
How reassuring to hear the gravel-voiced General Sir Mike Jackson on the Today programme this morning laying into the High Court's ruling that fighting soldiers should be covered by Human Rights legislation. I can't wait for the moment that a Taliban soldier stops to consider whether placing a deadly roadside bomb might infringe their human rights.
The European Convention on Human Rights Handcuffs Britain’s Armed Forces - includes response from BAFF's Douglas Young
A different view was that phrases like "in the heat of battle" were not only confusing, but ill-judged in relation to the test case arising from the Iraq death of Scottish TA soldier Jason Smith as a result of heatstroke.
And Defence Editor Michael Evans of The Times pointed out that:
No one has suggested that a soldier serving overseas should be immune from prosecution under UK law. So it is disingenuous to argue, on the one hand, that troops are subject to UK jurisdiction but, on the other, are not covered by the British Human Rights Act if they walk a few yards from the relative safety of their forward operating base in Helmand.
The full judgement issued by the Court of Appeal on 18 May is now available online: Secretary of State for Defence v R (Smith) EWCA 441.
Even before the judgement became available, the British Armed Forces Federation's Chairman took part in a broadcast discussion with Patrick Mercer MP. The Federation, which has an "all ranks" membership and has been actively contributing since 2007 to a Council of Europe working group on the human rights of armed forces personnel, has consistently argued that:
Restrictions to the applicability of human rights law in operational situations are necessary, as envisaged in the European Convention of Human Rights itself, but such restrictions should only be imposed where necessary and the over-riding requirements of the battlefield must not be used as an excuse for depriving armed forces personnel of their human rights simply because they are not in Europe.
BAFF recommends caution in relation to any criticism of the Appeal Court ruling which contains phrases like "in the heat of battle", "in combat" or "on the battlefield".