Soldiers battlefield human rights.

I personally see it as another set of irons clamped to commanders legs, but there is a point to be made for blokes' basic human rights.


What do you reckon?

*edited to add: shouldn't really need this to ensure training and kit are up to scratch.


I think that "Crown Immunity"comes into play regarding activities on the battlefield in time of war!
In plain English ........ You ain't got any! Commanders can do whatever they like with you in the above situation.
You may be surprised at the number of court cases where the M.O.D have used crown immunity as their defence to get them and the Government out of sticky situations ........ Its their ace card!
I doubt very much that this new proposal will be made law as it is not in the state and crown's favour.
It may be another manacle but it is one clamped around the country. We need to remember that Pte Smith died away from the battlefield - the judgement that was issued was considerably more expansive than the particular case required.

Personally, I am reasonably content that what human rights legislation exists in the UK applies to HMF (although I would change the broadness of some of the interpretation, particularly our requirement to adhere to Strasbourg case law). There should be (and are) exceptions to some of the HRA Articles for military service, national security etc. I think an explicit exception for battlefield conditions would be a good thing but wouldn't you just love to see Blair, Hoon and Brown in the dock for failing to provide enough body armour (for example!)

Alvin said:
I think that "Crown Immunity"comes into play regarding activities on the battlefield in time of war!
Note that Crown Immunity is specified Act by Act (and is systematically being withdrawn.) HRA98 is quite specifically engineered to bind the government and its agents - those organisations that have historically been able to claim it. The one you seem to be discussing is the Crown Privilege against criminal prosecution for Health and Safety at Work violations.
MoD hasn't had Crown Immunity for a couple of years. Hence why we have drivers hours and all other sorts of H&S pish to deal with.

edited to say - Idrach beat me to it and also knows more clearly - ignore me!
broken_man said:
MoD hasn't had Crown Immunity for a couple of years. Hence why we have drivers hours and all other sorts of H&S pish to deal with.
I think it still exists to a limited extent - see s48 HSWA - but the Govt is not bound by sections 33 to 42 which create the criminal offences. I would also note s10 of the Crown Proceedings Act 1947 (as amended) - which covers individual immunity from civil suit.

However, all of this is over-ridden, in the case at point, by HRA98 and the Right to Life - Article 2 - which does not contain a specific exclusion for military action.
Considering that this wasn't an event that took place in the direct face of the enemy, anyone with a reasonable grasp of military ethics will know that in almost every situation, that a commanders first priority is always the soldiers that they serve. Obviously that isn't a scientific approach nor is it fool-proof, but commanders at every level already have a duty-of-care to their soldiers. In most situations this also means that the commander will do everything that is reasonably possible to ensure that their troops have pretty much everything that they need, that is available. However, if something just isn't available, then obviously there is nothing that can be done other than making do and using your noggin. As such, in those situations the responsibility lies as heavily with the individual as it does with the local commander.

I would find it very hard to believe that the commanders, at all levels, didn't do everything that was reasonably possible in that situation to ensure that the soldiers were as aware as possible of the dangers of heat. You can make as many laws and reccomendations as you want, but if what you want just isn't available then those laws aren't going to make a blind bit of difference.
Crown Immunity still exists in periods of war, conflicts and essential operational duites.

Take away this then well..... "Will that last person put the light out and close the door on the way out".

The_Magician said:
Crown Immunity still exists in periods of war, conflicts and essential operational duites.
Crown Proceedings (Armed Forces) Act 1987 (which amends s10 of the 1947 Act I mentioned earlier):

(a)by reason of any imminent national danger or of any great emergency that has arisen; or

(b)for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world.
However, it is a complex arrangement of various get-outs in regularly amended legislation (and, as stated, protects you from legal liability rather than legal responsibility - hence the 'Crown Notices' under elft). Strict application (corporate or personal) of HRA Art 2 (if we were operating with ROE beyond the s2(a) self-defence exclusion) would be crippling.

Edited to add: the MOD conceded (the Al-Skeini case) that UK bases abroad, including in war zones, were within the jurisdiction of the HRA. The Smith judgement found against the MOD's appeal to limit HRA applicability to UK controlled territorial jurisdiction. Para 29 is convincing:

there is no question but that members of the British armed forces are subject to UK jurisdiction wherever they are. They remain subject to UK military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere. They are also subject to the general criminal and civil law. Soldiers serve abroad as a result of and pursuant to the exercise of UK jurisdiction over them. Thus the legality of their presence and of their actions depends on their being subject to UK jurisdiction and complying with UK law.
and this is supported by a series of ECHR judgements (which the UK courts are bound to follow), largely to do with Cyprus:

authorised agents of a State (including diplomatic or consular agents and armed forces) not only remain under its jurisdiction when abroad but bring other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property.
And more generally, with regard to Article 2:

The [ECtHR] has repeatedly interpreted article 2 ... as imposing on member states substantive obligations not to take life without justification and also to establish a framework of law, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.
Further case law has established that special care is needed for people in custody of the state (prisoners, detained mental health patients) and this has been extended to conscripts. The remaining point was whether, as volunteers, that extension applied to us:

They are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. The army owes them the same duty of care at common law. We recognise that they may not be quite as vulnerable as conscripts but they may well be vulnerable in much the same way, both in stressful situations caused by conflict and in stressful situations caused, as in Private Smith’s case, by extreme heat. We see no reason why they should not have the same protection as is afforded by article 2 to a conscript.
If the chain of command robustly hold people to account when they screw up then there would be no need for this sort of action. The chain of command of course should fully include any minister, civil servant, consultant or anyone else who makes decisions - if they make the decisions they should take the responsibility.

In this case, if the commanders could reasonably have been aware of the risk of heatstroke (who wouldn't?) then they should have taken mitigation measures. If they didn't, then they are culpable. If they asked for dispensations, more kit, dispensation etc then all they have to do is say who they asked and who refused it. If they took an operational risk then they have to justify it.
RUSI have a good article by a barrister with operational experience that lays the blame for this squarely at the feet of cr@p MOD lawyering:

The Judgement handed down on 18 May by the Court of Appeal does not radically alter the existing parameters of combat service for military personnel. Rather it confirms the previously held view that soldiers should be accorded all reasonable protection within the context of operational conditions.
From the legal tactical perspective, lawyers with experience in these matters take the view that the MoD made a serious mistake litigating this case. If the point had been conceded early in the proceedings that service personnel are protected by the Human Rights Act, this case and the controversy that has grown up around it, would have gone no further. Few lawyers had any real doubt that servicemen were so protected. From the MoD perspective they should not have flagged this issue up so prominently.
Crown Immunity now has a very limited and narrow part of the legal spectrum to occupy, and if the detention of some very naughty boys in Belmarsh immediately post 9/11 is deemed unlawful then guess what?
Personally I would like to see Bliar gripping the rail in the Hague, but a more relevant point to those in the MoD which is very pertinent to the last post (and lack of kit) is that Corporate Manslaughter is on the books.
Has been for a while now and I bet there are some in a certain barrister's chambers sharpening the pencils as we speak!
I recommend a reading of this RUSI article (2009) before making your mind up on this issue.

Many thanks to Idrach for that link. I have served with the author of that article, and am on record as expressing similar views last year both on the BAFF website and here on ARRSE.

The article makes the point extremely well about the MOD's media strategy last May, which tried to put it about that the Court of Appeal decision would affect command decisions made "in the heat of battle", and place commanders at risk of being "prosecuted under the Human Rights Act".

This media strategy was in my view both misleading and potentially dangerous, in that it asked commanders to start looking over their shoulders in circumstances where there was no need to, to the extent that CDS then had to put out an internal clarification which contradicted the media line being put out through intermediaries.

In the process, various retired senior officers - and politicians such as Eric Joyce MP who was at the time PPS to the Secretary of State - were inveigled into expressing concerns about the ruling. Some went quiet pretty quickly when they realised that things were not exactly as had been briefed.

The media strategy didn't emanate from the MOD's lawyers. The more reasonable explanation for the MOD having taken the further appeal to the Supreme Court is that these are important issues which call for the clearest possible delineation as to where the ECHR does and does not apply.
hackle said:
The more reasonable explanation for the MOD having taken the further appeal to the Supreme Court is that these are important issues which call for the clearest possible delineation as to where the ECHR does and does not apply.
I think that it is reasonable that this goes to the Supreme Court - the question having been raised, a degree of legal certainty will at least eventually allow us to shoo the human rights vultures away from understandably grieving families.

The MOD clearly want (or at least are acting as if they do and, from the point of cost-minimisation you can see why) the ECHR to be ruled as not applicable to soldiers in as wide a set of cases as possible. They only reluctantly agreed that it applied in the UK bases in Iraq.

On the other hand, having read the actual judgement, it appears clear that the lawyers and judges are generally convinced ("We see no reason why they should not have ...") that EHCR applies regardless (with the case law examples mentioned above) - including in and out of battle. AFAICS, that is not the question at issue. What seems to be the legal point is the extent of our Article 2 rights in combat (and if we are being shot at, s2(a) applies and we can legally shoot back - s2(c) may apply as well.)

It seems to revolve around the legal meaning of "reasonably practical" - so, if the MOD deliberately bought ineffective body armour (invent your own reason - incompetence, excessive frugality, corruption, whatever), deaths as a result of failure of that armour could be Article 2. As could a refusal to issue armour, say because "we've got a Board of Officers next week" (yes, I know it is on individual issue - or, at least, mine always has been.)

On the other hand, a death because a brick went one way around a compound and were ambushed rather than the other way and would have got behind the baddies - would not be.

As Hackle said - some certainty in the form of a clear Supreme Court ruling would settle it.

Just to note - as ever when talking about the law - I am trying to analyse it from the actual or proposed state of the law, not where the law would be if I was in charge!

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