Taliban detainees covered by Human Rights Act - but not British soldiers

The courts have decreed in a number of cases, such as the Afghan detainee case only last weekAfghan detainee case only last week, that insurgents and criminals detained by British forces in Iraq or Afghanistan are covered by the Human Rights Act. Now the UK Supreme Court has determined in the Pte Jason Smith case by a majority of 6 votes to 3 that the jurisdiction of the Act does not extend to British forces personnel on overseas missions. Part of the reasoning for that decision is that all British armed forces personnel, including compulsorily mobilised personnel like Scottish TA soldier Jason Smith, are volunteers. Giving his initial reaction to the Supreme Court's judgement issued today 30 Jun 2010, BAFF Chairman Douglas Young said that:

"It is of paramount importance that commanders at any level, in fact any serviceman or servicewoman who is required to make decisions in the heat of battle, invariably on the basis of incomplete information and usually without the full resources that one would ideally wish to have, should not have to look over their shoulder and expect their decisions to be the subject of painstaking scrutiny or criticism in subsequent court proceedings.

To that extent, while saluting the dignified and responsible campaign by the Smith family we welcome the MoD's partial success in this appeal. The MoD won by a majority decision on what is called the 'jurisdiction' issue, and lost on what is called the 'inquest' issue.

However, as far as I can see, none of the parties to the Jason Smith case - and none of the judges in the lower courts - ever suggested that human rights considerations should have such an effect on the battlefield, or in relation to any tactical or strategic decisions, whether in contact with the enemy or otherwise.

If any did suggest that Human Rights Act considerations should have such an effect in relation to tactical or strategic decisions, then I would have no hesitation in saying that they were wrong.

While there never was any question of any commander being prosecuted under the Human Rights Act (which imposes duties on states rather than individuals), clarity on such matters is very much in the interests of armed forces personnel. Unfortunately we may find in the long run that today's judgement has created more uncertainty and not less.

Supreme Court judge Lord Collins said in the judgement (para 303) that

"It is hardly conceivable that in 1950 the framers of the Convention would have intended the Convention to apply to the Armed Forces of Council of Europe states engaged in operations … outside the contracting states."

But other cases such as al-Skeini and Othersal-Skeini and Others have already established that the Convention's protection can extend to detainees of British forces within British bases overseas. It is hardly conceivable that the framers of the Convention would have visualised this either. As Lord Collins pointed out, the European Court of Human Rights at Strasbourg has also recognised exceptions which would not have been contemplated in 1950.

There is a degree of symmetry between the al-Skeini ruling that (in effect) the Convention applies to detainees while within British bases overseas but not at the point of capture, and today's ruling that (in effect)  the Convention can apply to British personnel within bases and hospitals overseas but not outside them.

It is worth remembering that in both cases the Ministry of Defence originally opposed the application of the Convention whether to detainees, or to British personnel, even within bases. The ruling confirmed by the Supreme Court today, that the Convention can apply within bases controlled by the British military, is entirely due to the persistence of the Smith family and those who supported them.

The Supreme Court did not agree today with the MoD's argument that a full investigative inquest was not obligatory in every case where the death of a member of the Armed Forces abroad has occurred. It is good that the Ministry has now "readily accepted" this second part of the ruling, "welcoming the clarification given by the Court", although it does not consider the ruling will make any difference to the existing practice on inquests."


Footnote: It will have made no difference to the decision, but there is a factual confusion in the statement (para 103 of the Supreme Court judgement) that "several soldiers serving with the Queen’s Own Highlanders, were killed during the same campaign [Op Telic Iraq 2003] when their armoured vehicle was fired on by a US Black Hawk Helicopter".

Human rights and forces personnel

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