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Liability in War

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

The validity of UK jurisdiction in periods of wartime is an endless source of legal confusion. As representatives of the state, the British forces are under the complete control and scrutiny of Government and the state is liable for their actions as public agents. However, the key factor distinguishing the British forces from other state bodies is that the majority of their actions occur outside UK jurisdiction. Deciding on the territorial boundaries of this jurisdiction is inherently problematic. This lack of clarity is especially evident when the following two positions are compared: the state’s responsibility for its own soldiers, and the state’s responsibility for foreign citizens. The courts must balance the individual interests of soldiers and citizens, against the often-countervailing national interests. The judges have spoken; it is no longer sufficient to place all wartime disputes under the ‘combat immunity’ umbrella, and bypass the fundamental principles of negligence law. Nevertheless, whether these judges have been heard is certainly open to speculation.                                     

Jurisdictional squabble 

In order for Convention rights to be applicable in instances of war, the concerned parties must fall within the State’s jurisdiction. Article 1 of the European Convention on Human Rights ("ECHR") states that:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Such a necessity is even applicable in violations of the Article 2 right to life. If the state can sufficiently demonstrate that a soldier did not fall within their jurisdiction, they can escape legal responsibility for any suspected or actual breach of their human rights. The extent to which the state could be said to have caused the particular result is immaterial.

Previous case law has demonstrated the Ministry of Defence’s ("MoD") reluctance to be held accountable in such instances. The Court in Soering v UK (1989) held that there are territorial limits on Convention rights; human rights are only universally acceptable in exceptional cases, as further established in Bankovic v Belgium (2001). These exceptions include: acts of diplomatic or consular agents; acts performed with the consent or acquiescence of another state; when the UK has effective control of the territory; and acts of state agents exercising physical power and control over the victim. Such exceptions are designed to reflect the public role of the state in another’s territory. If the state took on these roles within the UK itself, a duty of care would arise to the citizens. It would be unreasonable to not enforce this purely because the state changed location.

One of the more extreme examples of jurisdictional tension was found in the ‘Catherine Smith case’ (2010). Private Jason Smith suffered a cardiac arrest and died, following a lack of adequate equipment and medical facilities. Crucially, Private Smith had left the UK military base at the time of death. The Supreme Court held that the MoD was not obliged to safeguard the lives of British troops should they step off a UK military base. Had Private Smith died within the base, the MoD would have been held responsible.

The decision proved immensely unpopular within human rights organisations. John Wadham, Group Legal Director at the Equality and Human Rights Commission, stated:

We are disappointed with the Court’s finding that British nationals serving in the British army do not enjoy the same human rights safeguards as other individuals. Soldiers are often required to lay down their life for their country and in return, should be afforded human rights protection. 

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.

Judicial Intervention

The Catherine Smith case was a clear example of the state being reluctant to interfere in military matters, regardless of Private Smith’s employment in the army, or even his Article 2 right to life. In Al-Skeini v United Kingdom (2011), the European Court of Human Rights ("ECtHR") made the decision to intervene. Once again Britain attempted to avoid responsibility via a jurisdictional argument. The death of six Iraqi civilians during British security operations, it was argued, should not fall within the relevant jurisdiction. Britain was not in complete control of the area. However, the ECtHR held that the UK had instigated personal, authoritarian control, as opposed to purely territorial. The armed forces had essentially taken on the role of a public authority, and were thus responsible for the affected citizens’ livelihood. The ECtHR laid down two primary conditions to be satisfied when applying this extra-territorial jurisdiction:

  1. the presence of a state agent authority; and
  2. the effective control of the area in question.

Nevertheless, in Smith v Ministry of Defence [2013] ("Smith v MoD"), the MoD continued to argue that the inadequate training and protection offered to their own soldiers, and the consequent fatalities, was not an issue under their responsibility.

Two categories of claims were brought; the "Challenger claims" and the "Snatch Land Rover claims".

  1. The Challenger claims involved the death of Corporal Albutt, and the injuries of Trooper Andrew Julien and Lance Corporal Twiddy. The involved parties had not been suitably trained, or equipped, to deal with incidents of friendly fire. The ‘Challenger claims’ were held to be suitable for trial regardless of the MoD's argument that it fell within the principle of combat immunity. On appeal to the UK Supreme Court ("UKSC") it was held that it would be just, fair and reasonable to impose a duty of care on the MoD in this instance because combat immunity only covers negligence occurring during the actual heat of battle, so to speak. The ‘Challenger claims’, on the other hand, involved negligible training and equipment provided prior to battle. Nonetheless, the traditional principles of negligence were applied, including the duty of care employers owe employees.
  2. The ‘Snatch Land Rover claims’ arose from the deaths of Private Philip Hewett and Private Lee Ellis; the appellants argued that the MoD breached Article 2 ECHR, by not supplying the victims with suitable armoured vehicles, despite having a reasonable awareness of risk. The UKSC unanimously held that the victims of the ‘Snatch Land Rover claims’ were within UK jurisdiction, and the majority found that the claims fell within Article 2. Due to the level of ‘state agent authority and control’ (see paragraph [46] of the UKSC's judgment) Britain had over its own troops, military base, and equipment, the Al-Skeini v United Kingdom (2011) conditions were satisfied. The Convention rights were hence applicable. 

By overturning its own decision in the ‘Catherine Smith case’, the UKSC extended the scope of the Human Rights Act 1998 to areas it had not previously been applicable. This judicialisation of war was met with a great deal of criticism, some arguing that the UKSC had imposed disproportionate obligations on the state. However, it must not be forgotten that the claims did not involve policy decisions implicated in the battleground, but purely the state’s ability to properly prepare its state agents within their controlled territory.

Combat Immunity

When jurisdictional arguments fail, there is an alternative method for the state to evade liability: the principle of ‘combat immunity’. Mulcahy v Ministry of Defence [1996] QB 732 stated that the UK is under no civil liability for negligence caused during armed conflict. It is considered detrimental to military operations for military personnel to deal with such matters; thus, it would not be just, fair and reasonable to impose a duty of care. The doctrine extends so far to suggest that there is no duty for defendants to maintain a safe system of work whilst undergoing battle conditions.

In Multiple Claimants v Ministry of Defence [2003] EWHC 1134, Owen J stated there is no duty of care owed:

... [I]n a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations.

Although the primary justification for such a doctrine lies in the reluctance to interfere in war, it cannot be denied that a “floodgates argument” is loitering. A battleground is inevitably not a safe working environment; it would be impractical to apply the same duty of care standard used in other areas of employment. Should the state be held liable for all fatalities and injuries occurring in wartime, the increase in litigation would be colossal, and the military would be distracted from securing their primary aims. The Caparo requirement of ‘just, fair and reasonable’must continue to be met when determining the relevant duties of care.

Nevertheless, the UKSC in Smith v MoD was justified in stating that the doctrine of combat immunity should not automatically apply to all instances of wartime dispute. Although the doctrine itself was not in question, the extent to which it should apply was. Lord Hope stated at [92] that:

The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to failures at that earlier stage… To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted.

It was therefore concluded that the scope of the doctrine should be narrowly construed. The courts should continually balance the interests of soldiers with the interests of military operations. Allowing national interests to automatically prevail over the individual’s fundamental rights would be to treat these soldiers as subordinates to ordinary citizens. They are still employees, and are still entitled to a safe work environment.

Mullender, in his paper ‘Military operations, fairness and the British state’ (2014) 130 LQR 28, suggests that the decision in Smith v MoD is evidence of an ‘altered general pattern of life’. The decision marked the judiciary’s expanding commitment to fairness in all aspects of negligence law, as they attempt to accommodate the countervailing interests of the individual and society. Once upon a time, joining the armed forces was regarded as a national duty. Conscientious objectors were addressed with disgust and shame, repeatedly handed feathers in the street. Nevertheless, Mullender reminds us that ‘Britain is no longer a great power, ready regularly to bear the often high costs associated with the use of its military. It is less of a war state and more of a law state'.

In our present day, joining the armed forces is a career choice, much the same as any other form of employment; this should be treated as such by law.

The Publics Reaction to Legal Involvement

It is apparent that military operations are being absorbed into the conventional English legal system. The judiciary has made it so. However, the lawyers who have summoned the courage to undertake wartime litigation have been met with a severe public backlash. This is most apparent when dealing with foreign nationals. Human rights lawyer, Paul Shiner, represented Iraqi civilians at the Al-Sweady inquiry. Such claims concerned their treatment under the control of the British Armed Forces in Iraq. The Inquiry was later abandoned due to insufficient evidence. However, Mr Shiner has gone on to be verbally abused and threatened by members of the general public.

Shockingly, he believes such claims have been stoked by comments made in Parliament. Speaking in the House of Commons, Conservative MP Philip Hammond, stated:

It is essential that when we deploy our armed forces in combat, they are able to operate without having both hands tied behind their back. An increasing spate of costly actions are being brought against Her Majesty’s Government by contingent fee lawyers on behalf of foreign nationals.

Such a statement would have an obvious effect on public opinion, especially when handled by the media. No mention is made as to the gravity of the claims brought, the serious human rights issues involved, or the possibility of these actions being justified. Judicial efforts to bring wartime disputes within the realms of negligence law are futile if legal involvement is discouraged, or even condemned.

Turning a Blind Eye?

Regardless of the monumental decision made in Smith v MoD, the Government’s reluctance to interfere in wartime claims is still apparent.  With an ever-growing number of wartime claims emerging concerning British nationals and foreign nationals, a firmer stance needs to be taken. Jurisdictional arguments are often impractical, and those invoking ‘combat immunity’, unjust. Greater effort must be instigated to finally bring the law of armed conflict within the jurisdictions of the English legal system from all angles. A united front between the lawyers, judges, and even parliament must be ensured in order to pursue this goal. The reaction to Paul Shiner’s involvement is clear evidence that the judges are still fighting this war alone.

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Tagged: Constitution, Human Rights, Personal Injury, Supreme Court, Tort Law

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