Government claims that giving soldiers human rights in war zones ‘will hamper battlefield commanders’

(15 March 2010) On the same day as The Daily Telegraph reports that Army training exercises have been cut by a third to save money, The Times reports that a mother’s battle to ensure that soldiers in war zones have their human rights protected will be challenged by the Government today, claiming that commanders will fear being sued for decisions made in the heat of battle.

The Supreme Court will hear Ministry of Defence submissions over a landmark ruling that soldiers must be protected by the Human Rights Act when fighting outside their bases in countries such as Afghanistan and Iraq.

Catherine Smith, whose son, Private Jason Smith, 32, died of heatstroke in Iraq in 2003, has struggled for seven years to secure a more thorough inquest into his death, as well as to ensure better protection of soldiers’ rights.

Last May the Court of Appeal ruled in her favour, sparking concern among some commanders. Major-General Patrick Cordingley, who commanded 7th Armoured Brigade in the Gulf War and retired from the Army in 2000, said: “Life is hugely complex in battle situations and commanders cannot be expected to have to worry about every aspect of the Human Rights Act once they’re engaged in operations.”

The ruling also requires coroners to conduct more probing inquests into the deaths of troops in Iraq and Afghanistan, a move that could result in further revelations of military equipment and training failures. Today’s hearing in London will be the final leg of Mrs Smith’s legal struggle. ...

The Ministry of Defence is worried that guaranteeing soldiers the rights and freedoms enshrined in the Human Rights Act when in an inherently dangerous situation would put an unreasonable burden on the Government and would affect the ability of commanders to make decisions that expose their troops to risk.

“British commanders engaged in battle with the Taleban in Afghanistan need to know that the decisions they take in hostile environments will not be challenged at a later date in the courts,” a spokesman for the MoD said.

Extracts of the MoD’s legal argument, which has been seen by The Times, also say: “Given that soldiers (who are not conscripts) have voluntarily assumed the risk of danger and death that is an intrinsic element of their chosen occupation there would appear to be less ground for imposing a special duty on the State to protect them from risk of death than in respect of other groups of individuals.”

Mrs Smith’s lawyer, Jocelyn Cockburn, a partner at Hodge Jones & Allen, said: “I don’t think a court would second guess in almost any circumstance what a commander decides to do in the heat of battle. The issues that could be affected are military planning and the putting in place of, and adhering to, systems to protect soldiers.”

The MoD would have a greater requirement to ensure troops are properly trained and equipped before deployment, she said.

 

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