Human Rights and Members of the Armed Forces

Until recently it was believed that members of the UK armed forces were protected by the Human Rights Act even when stationed abroad. However, a recent case which came before the UK’s Supreme Court may have a serious impact on the entitlement of members of the UK’s armed forces to rely on UK human rights law and to protect themselves from breaches of their rights.

In earlier cases heard in the UK it had been held that members of the UK armed forces were protected by UK human rights law whilst in military bases or hospitals abroad. Members of the armed forces are generally governed by UK law and are, themselves, bound to comply with standards of British law whilst serving abroad.

The Supreme Court Case on Human Rights and the Armed Forces

The case had originally been brought against the Ministry of Defence by the mother of a soldier, Jason Smith, who died in Iraq from heatstroke at the age of 32. The soldier’s death occurred in 2003, soon after the allied forces had overthrown Saddam Hussein’s regime. Mr Smith, who was a reservist with the Territorial Army, had complained to commanding officers that he was feeling unwell but died before he was taken to hospital.

The case had already been heard by judges in lower UK courts. Previous decisions had gone against the Ministry of Defence and found that members of the armed forces were protected by the Human Rights Act whilst serving abroad.

The Argument Against the Application of UK Human Rights Law

The Ministry of Defence believe that the Supreme Court’s decision is based on common sense. They argue that it would be impossible to engage properly in combat if commanding officers were constantly having to balance every decision made and order given against the human rights of individual soldiers. They also state that it would be impossible to protect the human rights of individual soldiers in other countries, such as Afghanistan or Iraq, to the same standard as in the UK.

The Argument For the Application of Human Rights Law

This case was widely supported by human rights organisations and anti-war groups. The case was also seen as an important step towards ensuring that British soldiers who are sent abroad to fight are properly equipped. There have been numerous allegations that British soldiers are frequently poorly or under-equipped and that their lives are being put at risk as a result.

Although this case did not directly relate to the soldier’s equipment, the principles contained in it could have a far-reaching impact on the general duty of the Ministry of Defence and commanding officers to ensure that the rights and welfare of their soldiers are being observed. This could include a duty to ensure that the equipment used by soldiers offers an appropriate level of protection.

The Aftermath of the Supreme Court’s Decision

The family of the soldier who died immediately said that they intended to take the case to the European Court of Human Rights, which is the final court of appeal for any UK human rights law decision. The European Court of Human Rights already has a case pending which concerns alleged breaches of the human rights of Iraqi citizens by members of the UK armed forces.

Advocates of the wider application of human rights law argue that the UK government has a duty to protect the human rights of individuals over whom it has control - both in the UK and abroad. By denying the human rights of members of the armed forces, or of foreign nationals under the control of the UK authorities, the UK government may not be fully enforcing human rights law.

Despite allowing the government’s appeal in the case of Jason Smith, the UK’s Supreme Court agreed with an earlier court decision that a second inquest should be conducted into Mr Smith’s death. The second inquest could investigate the wider circumstances surrounding his death - including whether his human rights had been breached. The Supreme Court judges also acknowledged that the question of how widely human rights law should be applied to UK armed forces stationed abroad may require further clarification by the European Court of Human Justice.