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UK court limits scope of Human Rights Act for soldiers

By David Stringer
Associated Press / July 1, 2010

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LONDON — Britain’s Supreme Court threw out a plan yesterday to offer troops at war protection under human rights law, saying the policy could leave military commanders concerned more about legal issues than enemy fire.

Six of nine justices overturned a lower court decision that the Human Rights Act should apply to soldiers everywhere. The court said human rights legislation was never intended to apply to forces fighting on foreign soil.

Activists had hoped having the troops subject to the human rights act would strengthen the ability of soldiers or their next of kin to sue the government in cases where deaths and injuries may have been caused by faulty or missing equipment.

Justice Alan Rodger said in the ruling that “deaths and injuries are inevitable’’ in battle.

“To suggest that these deaths and injuries can always, or even usually, be seen as the result of some failure to protect the soldiers . . . is to depreciate the bravery of the men and women who face these dangers,’’ he said.

Britain’s military had argued that it could not guarantee the same protection for troops patrolling an Afghan market as it does to those working in bases or training in the UK.

Ministry lawyer James Eadie had argued that the earlier ruling would probably have an impact on tactical decisions made by commanders in combat situations — who would have the added burden of considering the legal implications of their choices.

“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 demanding and dangerous work,’’ said Air Chief Marshal Jock Stirrup, head of the British armed forces.

The ruling centered on a case related to the death of Private Jason Smith, 32, who died of heatstroke on a British Army base while serving in Iraq in 2003.

Smith, a reservist, repeatedly told medics he felt unwell due to soaring temperatures, which topped 122 degrees Fahrenheit. He later suffered a heart attack and was found dead.

An inquest into Smith’s death found the military failed to address the difficulty he had in adjusting to the climate. A second inquest, which will consider whether his human rights were violated, has been ordered by a lower court. The Supreme Court agreed the review was required in Smith’s case, but will not be needed for all military deaths.

Jocelyn Cockburn, who represented Smith’s mother, Catherine, called the Supreme Court’s ruling “astonishing,’’ arguing that troops expect the government to abide by British laws anywhere the military is deployed.

“It can only be hoped that the morale of soldiers who are risking their lives for us will not be severely damaged by this astonishing finding,’’ she said.

Justices said it was unlikely that when European human rights legislation was drafted after World War II it was “regarded as desirable or practicable’’ to be applied to troops overseas, but they advised that the issue be resolved at the European Court of Human Rights in Strasbourg, France.

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