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Court rules with a six to three majority that the Human Rights Act should not apply for troops on patrol or in combat
The supreme court today dismissed claims that British soldiers on the battlefield should be protected by the Human Rights Act, but ruled that the Ministry of Defence must be held to account more rigorously at military inquests.
Lord Phillips, the president, said it was impracticable to secure the principle of the right to life for troops "in active service abroad".
Matters "relating to the conduct of armed hostilities" were "essentially non-justiciable", added Lord Collins. That principle, the court decided by a six to three majority, applied only when soldiers were on their base, and not when they stepped outside on patrol or on operations.
However, the judges noted that the issue would ultimately be decided by the European court of human rights in Strasbourg, which is hearing a separate case brought by alleged Iraqi victims of British military force.
Article 2 of the European convention on human rights, an integral part of the Human Rights Act, states: "Everyone's right to life shall be protected by law".
Lord Mance, one of the three dissenters, said that as an occupying power in Iraq, Britain had "an almost absolute power over the safety of its forces" under international law.
The case was brought by Catherine Smith, whose son, Jason, 21, a private in the Territorial Army, died of heatstroke on a base in southern Iraq in August 2003. She argued the inquest should have investigated the circumstances in which he died, and why he died, not just how.
The supreme court agreed, something which the MoD had already accepted. However, the ruling sets a precedent and opens the way to other enhanced inquests, the independent tribunals demanded by the Human Rights Act when allegations are made against officials of the state.
Outside the court, Catherine Smith said: "This time we might have full disclosure – that was one of the main points. We have never seen his medical notes."
Saying she that the decision might help other families, she added: "In a way he [Jason] hasn't died for nothing".
Air Chief Marshal Sir Jock Stirrup, chief of the defence staff, said: "This outcome is not about denying rights to our people, it is about ensuring that we have a clear and workable set of rules under which they can carry out their dangerous work."
Liam Fox, the defence secretary, said: "It is right that orders given in the heat of battle should not be questioned by lawyers at a later date. It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations."
Jocelyn Cockburn, Mrs Smith's solicitor, said that although Jason's mother had secured a second inquest for her son, the wider implications of the decision were shocking.
She added: "It is artificial to assert that rights can be protected on base but not off base. It is impossible to see how the physicality of a base (whether that be a camp in the desert or other military installation) makes any difference to the question of whether a UK soldier is subject to UK jurisdiction.
"Is the court saying that the moment a soldier steps over the line in the sand and is off-base he has no rights? Whose jurisdiction are our soldiers under when they are off base in Afghanistan – Afghan jurisdiction or some sort of legal 'no-man's land'?"
John Wadham, legal director at the Equality and Human Rights Commission, said: "Extending human rights protection is not about individual decisions in the heat of battle, but ensuring that when we send soldiers off to war they are properly prepared; kitted out correctly and with equipment fit for combat."
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