Judgment: Soldiers’ families can sue over deaths in battlefield under landmark ruling

SUSAN POWER

In a landmark decision on June 19th, the UK Supreme Court in "Smith, Ellis and Allbutt v The Ministry of Defence" extended the application of Article 2 of the European Convention on Human Rights on the right to life and coterminously narrowed the doctrine of combat immunity in common law, to facilitate claims for liability against the state arising from the families of soldiers who had been killed in hostilities in Iraq between 2003 and 2006.

The first claim arose from a petition by three groups of families, those of Corporal Stephen Allbutt, who was killed, and Corporal Dan Tweedy and Trooper Andy Julien, who were injured in the Challenger II tanks incident, in 2003, when they were misidentified through thermal imaging and fired on as enemy troops by British forces. The Challenger claims were brought in negligence at common law only.

The second claim, lodged by Susan Smith for the death of her son, Private Phillip Hewett, in the Snatch Land Rovers incident in 2005, argued that the lightly armoured Snatch Land Rovers did not provide adequate protection against improvised explosive devices (IEDs) which the military might reasonably have expected in light of the immediate risk to the life of the soldiers under Article 2 of the European Convention on Human Rights (ECHR).

The family of Private Lee Ellis brought a third claim under Article 2 of the ECHR and in negligence, when he and Captain Richard Holmes were killed in a patrol in 2006, while driving the lead Snatch Land Rover in a convoy that did not have detection equipment fitted, despite such being installed in other similar vehicles.

Jurisdiction
Notably, the court applied the new principles on extraterritorial jurisdiction from the Strasbourg decision in Al-Skeini, marking a departure from the territorial application of the jurisdiction derived from Bankovic. Significantly, the convention applied to all phases of the hostilities, from major combat operations to belligerent occupation and finally peacekeeping at the request of the Iraqi government, on the basis of the extension of state agent authority and control over the military.

While cases relating to the application of convention norms in armed conflict generally revolve around the protection of civilians and their property, this case represents an unusual application of the convention to soldiers engaged in active operations. As such it addresses some of the anomalies between the interrelationship of humanitarian and human-rights norms pertaining to the right to life, which have long been courted academically but to date have avoided challenge in the courts. The ruling finds that soldiers have a right to life under Article 2, even during combat operations, regardless of their status as combatants.

Critically the court recognised that the application of Article 2 was difficult in situations of attacks from insurgents and the planting of IEDs; under these circumstances a wide margin of appreciation would be accorded to the state.

Likewise, a wide margin of appreciation would be accorded where decisions on training and procurement were carried out at a policy level in the higher levels of command. However, the court found that, on a case by case basis, a middle ground may be struck and the margin of appreciation narrowed where inadequate equipment is provided by middle-level commanders.

Essentially the ruling may lead to situations where the actions of middle-level commanders are scrutinised for compliance with Article 2, while the operational decisions of higher-level commanders are not, due to their political nature.

Combat Immunity
Similarly, the court narrowed the application of the doctrine of combat immunity, which it found applied only to active operations against the enemy but not to activities removed from the theatre of war, such as training and fitting of equipment.

Whether the postconflict presence of British troops gives rise to a situation of “active operations” for the purposes of the doctrine was not clear from the ruling, and this question will be determined on the facts later by the trial judge.

Arguably the narrowing of combat immunity in this instance exceeds the permitted public policy considerations implicit in liability for negligence.

Dr Susan Power is lecturer in international criminal law at Griffith College Dublin