The Bloody Sunday inquiry tribunal was accused in a London court yesterday of "knowingly exposing individuals to the risk of death" by insisting that former soldiers must go to Derry to give their evidence.
The tribunal's decision was made despite "overriding concerns" expressed by the Ministry of Defence that the former service personnel would be prime targets for dissident republican organisations in the area, Mr David Lloyd Jones QC, told the High Court.
He argued that in May this year, the Ministry of Defence had said: "There can be no doubt as to the determination and capacity of terrorists in this area to attack and kill members of the security forces and those closely associated with them."
Yet the tribunal, headed by Lord Saville, ruled out any question of moving to Britain to hear the evidence and ruled that the witnesses must attend the Guildhall in Derry.
"We seek to challenge that decision as unlawful," said Mr Lloyd Jones, appearing for 36 former soldiers named on the tribunal's first provisional list of around 100 witnesses.
He told Lord Justice Rose and Mr Justice Sullivan that the ruling breached Article 2 of the European Convention on Human Rights, which states that "everyone's right to life shall be protected by law".
"The inquiry is a public authority which knowingly proposes to expose the individual to risk of death to which he is not already exposed," he said.
The soldiers, whose identities cannot be revealed for legal reasons, have indicated they are willing to give evidence, but object to being forced to do so in Derry.
So far the inquiry, which began work in March 2000, has heard 379 of the 500 potential civilian witnesses.
In court, Mr Lloyd Jones said the RUC, Ministry of Defence and security services evidence pointed to the soldiers being "particularly provocative targets" if they had to travel to Derry.
It would be difficult to find secure accommodation for the men, and all routes to and from the Guildhall were known to the terrorists.
Mr Lloyd Jones said: that although the Provisional IRA was currently said to be maintaining a ceasefire, dissident republican terrorists, including many who had defected from the Provisionals, were carrying out a campaign of attacks in Northern Ireland specifically directed at the security forces and military targets. There was evidence before the tribunal that this included nine such attacks in the Derry area since February 2000.
This included three attacks on barracks at Ebrington and Ballykelly and a bomb attack on an army post on the City wall 400 metres from the Guildhall.
The evidence revealed that dissident republican terrorists were particularly active in Derry. They were strongly established on the west bank of the Foyle, he said. Mr Lloyd Jones said the purpose of requiring the soldiers to give evidence in Derry was not only to prevent any loss of confidence by one section of the public in the inquiry but also to create "the desired symbolic effect".
The tribunal was not entitled to expose the soldiers to risk of attack "simply in the interests of symbolic effect", he said.
Mr Lloyd Jones pointed out that, if the evidence was taken in London, it would be posted on the Internet - as was the case with other witnesses already testifying - and relayed to a place of public access in Derry.
The families would continue to be represented by nine QCs, nine junior counsel and seven firms of solicitors, all paid for by the Northern Ireland Office on the recommendation of the tribunal.
He went on to argue that the tribunal erred in concluding there was no evidence of a serious risk of public disorder.
This, he said, ignored an RUC "threat assessment" which warned that political groupings within the community had historically capitalised on such matters for political purposes and that a "large emotive crowd" could make it difficult for police to ensure the safety of both protesters and soldiers attending the inquiry.
"It is a regrettable fact that there is in the city of Londonderry an appalling history of violent public disorder and a catalogue of serious rioting," said Mr Lloyd Jones.
Manipulation of rioters was not confined to republican elements. Factions at the other extreme might disrupt the inquiry in an attempt to destroy the current peace agreement, he said
Even if the security service witnesses could be protected from the risk of attack, the intimidating atmosphere would affect their ability to give their evidence cogently and effectively, and they would suffer procedural unfairness as a result.
Most of the witnesses were now civilians and in their 50s, he said. The hearing continues today