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Judicialising Warfare Or Giving Soldiers Reasonable Rights?

Judicialising Warfare Or Giving Soldiers Reasonable Rights?

References in square brackets are to paragraphs in the judgment.

Shorthanded as the ‘Snatch Land Rover Cases’, the Supreme Court has ruled that the families of three dead and two injured servicemen in Iraq can bring breach of Article 2 of the ECHR (the right to life) and negligence claims against the Ministry of Defence (MoD) in the joint cases of Smith and others v The Ministry of Defence; Ellis v The Ministry of Defence; Allbutt and others v The Ministry of Defence [2013] UKSC 41.

War is an inherently dangerous and unpredictable situation, in no way akin to the duty of care that would be imposed in an ordinary workplace.

The decision develops the Al-Skeini v United Kingdom (Application no. 55721/07) principle that Convention obligations extend to extra-territorial incidents where the contracting state has relevant ‘authority’ or ‘control’ and also appears to narrow the ‘combat immunity’ doctrine for striking out negligence claims in the armed forces.

The decision is no doubt one the MoD will find difficult to swallow. Determining these issues of jurisdiction and combat immunity might, in many ways, be more significant to them in the long term than the ultimate outcome of the trial. War is an inherently dangerous and unpredictable situation, in no way akin to the duty of care that would be imposed in an ordinary workplace. Any liability in the tort of negligence needs to be treated carefully for fear of judicialising warfare. However, the principle also seems to dictate that a combat situation cannot absolve the MoD of all responsibility, especially when faced, as is the case here, with claims of faulty equipment or negligent operational decisions.

In brief, a collection of claims were brought for both breach of Article 2 and common law negligence alleging that soldiers were sent out on patrol in unsuitable Snatch Land Rovers that were not fitted with a piece of new equipment known as ‘Element A’, which may have helped them detect the improvised explosive device (IED) that later detonated, killing some on board. Separately, another claim was brought in regard to the Challenger tanks involved in a fatal friendly fire incident. It was claimed that they were similarly ill equipped with a device that may have helped them distinguish friend from foe. The MoD disputed the Article 2 breach on the grounds that there was no jurisdiction for such a claim, and rebuked negligence on the grounds of combat immunity.

The jurisdiction issue: key cases

Al-Skeini v United Kingdom
In Al-Skeini the House of Lords addressed the case of the deaths of six Iraqi civilians which were the result of actions by members of the British armed forces in Basra. Perhaps the death that drew the most public attention was that of 26-year-old hotel receptionist Baha Moussa, who died as a result of severe maltreatment in a prison run by British personnel.

The decision is no doubt one the MoD will find difficult to swallow.

Despite Lord Roger, at [78], describing the idea that the UK was obliged to observe all Convention rights even in the very different context of combat in Southern Iraq as ‘manifestly absurd’, the Secretary of State accepted that since the detention centre was a British unit, Mr Moussa had met his death within the jurisdiction of the UK for the purposes of Article 1 of the Convention. So far as the other appellants were concerned, the UK did not have the kind of control in Basra and the surrounding area (where they died) to discharge Convention obligations including Article 2. The important issue Al-Skeini raised was that UK jurisdiction, in relation to breaches of Convention rights, might not be purely defined by geographical boundaries, but instead by where the UK deployed a level of ‘authority’ or ‘control’, even in other nation states and during wars.

R (Gentle) v Prime Minister

Whilst Al-Skeini was being considered in Strasbourg, the case of R (Gentle) v Prime Minister [2008] AC 1356 came to the domestic courts. The question in Gentle was whether Article 2 of the Convention imposed a substantive duty on the state to take timely steps to obtain reliable legal advice before committing troops to armed conflict – the issue being that the UK had been engaged in Iraq before it was legitimised by the UN Security Council. The claim was rejected. The Convention was not deemed to place an obligation on a state not to take part in an invasion, even one that was unlawful under UN law. Lord Hope gave judgment in both Gentle and Snatch Land Rovers stating (at [19] and [23] respectively) that Article 2 is not breached by

…simply deploying servicemen and women on active service overseas as part of an organised military force which was properly equipped and capable of defending itself, even though the risk of being killed was inherent in what they were being asked to do.

Catherine Smith: R (Smith) v Oxfordshire Assistant Deputy Coroner

The Convention was not deemed to place an obligation on a state not to take part in an invasion…

R (Smith) v Oxfordshire Assistant Deputy Coroner[2011] 1 AC 1 (the Catherine Smith case) was brought by the mother of Private Jason Smith, who was stationed in Camp Abu Naji, who collapsed while working off base and died of heat stroke shortly afterwards in the camp’s medical centre. As it was, the Secretary of State conceded that Private Smith was on the base when he died and Mrs Smith was entitled to the relief which she sought. The court nonetheless decided to examine the issue of whether contracting states, when concluding the Convention provisions, would have intended it to apply to their armed forces when operating abroad. It concluded that they would not have and that (at [307]) the case came within none of the exceptions recognised by Strasbourg and that there was no basis in case law or principle to that effect for the action. In addition, also at [307], they held that there were no policy grounds for extending the scope of the Convention to armed forces abroad as this would involve the courts relating to the conduct of hostilities, which were essentially non-justiciable.

By 2011, the Grand Chamber had passed judgment on Al-Skeini, making the following statements which were dissected by the justices in Snatch Land Rover.

  • At [131] (of the Strasbourg judgment):

    …acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of article 1 only in exceptional cases.

  • At Para 132: ‘To date, the Court in its case law has recognised a number of exceptional circumstances…’

The Supreme Court’s conclusions on jurisdiction

At [30] of Snatch Land Rover, the majority stated that ‘exceptional’ does not mean ‘an especially high threshold’, but instead that ‘the normal presumption that applies throughout the state’s territory does not apply’.

It also held, importantly, that ‘to date’ meant ‘the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extra-territorially is not closed.’ The statement by Lord Collins (at [303]) of Catherine Smith that Article 1 was not to be interpreted as a ‘living instrument’ can, at [30], ‘no longer be regarded as an entirely accurate statement’.

Similarly, the proposition that the rights in section 1 of the Convention are indivisible, which informed the thinking of the House of Lords in Al-Skeini and the majority in Catherine Smith ‘is no longer to be regarded as good law’ ([38]), instead

Despite opening up the principle of justiciability, the justices were keen to impose some sense of proportion.

the extra-territorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents’ authority and control, and it does not need to be more than that.

It continues:

…the view that was taken by the majority in Catherine Smith that the state’s armed forced abroad are not within its jurisdiction for the purposes of article 1 can no longer be maintained.([45])

Perhaps one of the most persuasive points comes at [58] where Lord Hope reflects on Lord Collins’ proposition in Catherine Smith (at [308]) that if you extend Convention rights to armed forces operating abroad then you involve the courts in the conduct of armed hostilities, which is non-justiciable. Lord Hope clarifies the situation in these words:

That some issues relating to the conduct of armed hostilities are non-justiciable is not really in doubt. But in my opinion a finding that in all circumstances deaths or injuries in combat that result from the conduct of operations by the armed forces are outside the scope of article 2…would amount, in effect, to a derogation from the state’s substantive obligations under that article.

Refining the Article 2 obligation

Despite opening up the principle of justiciability, the justices were keen to impose some sense of proportion. Having considered the Strasbourg jurisprudence in the area of Article 2 duties, at [76] Lord Hope stated that what is drawn from this is

…that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate.

There is no common law liability for negligence in respect of acts or omissions of those who are actually engaged in armed combat.

If the justices suspected the Government would be less that pleased with the judgment, they create some breathing space at [76]:

It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were, or ought to have been taken, about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.

In addition:

If [the allegations] relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy.

What the Supreme Court has done is noble but, as is admitted in the judgment at the end of para [76]:

…finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content is much more difficult. No hard and fast rules can be laid down.

In terms of the claims in Snatch Land Rovers the Supreme Court was ruling, at [80], that the evidence should at least to be heard at trial: ‘procurement issues may give rise to questions that are essentially political in nature’, but that is not possible to decide whether this is the case without hearing evidence.

Being clear about friendly fire incidents

It is important to note that the Challenger claim was not made on the ground that the friendly fire which killed the soldier was a negligent act and the MoD was vicariously liable. There is no common law liability for negligence in respect of acts or omissions of those who are actually engaged in armed combat ([82]).

Instead, the claimants are concentrating on the alleged failure to ensure that either the claimants’ tank or the tank that fired on it

were properly equipped with technology and equipment that would have prevented the incident’ as well as ‘an alleged failure to ensure that the soldiers were provided with adequate recognition training before they were deployed and also in theatre.

Combat immunity

In response to the negligence claims, the MoD invoked the doctrine of combat immunity. Essentially combat immunity relies on the following question: it is fair, just or reasonable to impose a duty of care upon the army to protect soldiers from death or injury in combat situations?

Dozens of authorities are called upon between [84] and [100], but at [98] the justices cited Mulchany v Ministry of Defence [1996] QB 732 as being the closest in terms of applying the question of what is fair, just and reasonable to cases involving the armed forces. Citing Neill LJ at page 750 of Mulchany, there is no duty of care upon the defendants in battle conditions to maintain a safe system of work.

In response to the negligence claims the MoD invoked the doctrine of combat immunity.

At [98] the Supreme Court suggested that this is no blanket protection:

The circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and from operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which of course must be avoided, of judicialising warfare.

What will be relevant in the Snatch Land Rover and Challenger claims is whether being on patrol with allegedly faulty equipment or being involved in a friendly fire incident that the correct technology may arguably have avoided, is truly comparable to the ‘battle conditions’ necessary to invoke combat immunity.

The tough decisions being discussed in the judgment and the inevitable controversies that will follow were summed up at [100]:

The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

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