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Bring on the drones – the Supreme Court has changed the way we fight wars

20 June 2013

11:30 AM

20 June 2013

11:30 AM

On the face of it, the Supreme Court’s decision to allow three suits to be brought against the Ministry of Defence is surprising, almost shocking. My colleague Alex Massie has castigated the judgment; but, while I don’t necessarily disagree with Alex’s sentiments, the judgment merits very close attention.

It is a politically far-reaching decision. The Court was asked to consider whether British military personnel on active duty overseas are under the jurisdiction of the European Convention of Human Rights. If they are, then the British state has a duty to secure the human rights of its overseas personnel (specifically their right to life under article 2 of the Convention) as if they were at home. In short, is there some corner of a foreign field that is forever Europe?

This is a difficult question because the judgments of the Strasbourg court are vague and contradictory in this area (for the best of all possible reasons: Strasbourg has never decided such a case on these terms). The Supreme Court weighed the various relevant Strasbourg judgments and found that jurisdiction does extend to personnel on active duty. It drew on this decisive passage in the Al-Skeini case:

‘It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under article 1 to secure to that individual the rights and freedoms under section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore the Convention rights can be divided and tailored’.’


This general principle means that, in the Strasbourg court’s view, these obligations exist wherever in the world a signatory state intervenes militarily and has authority over individual foreign citizens. This is because the state exercises control through its military personnel (its ‘agents’); over whom it has control through the chain of command. With that power comes responsibility: the state is obliged to protect its servicemen’s lives as far as possible (the judgment is, by the way, fair and honest about the risks of soldiering). This is provided by, among other things, adequate training, sound planning and effective equipment. The judgment concedes, à la Clausewitz, that no plan survives contact with the enemy; but it also denies the Ministry of Defence’s claim that its training, procurement and planning procedures fall under the doctrine of ‘combat immunity’; on the grounds that the doctrine does not extend to simulated training, procurement and so forth.

Here the judgment begins to get very political, touching those aspects of defence policy that are under the government’s direct command. The judges are at pains to point out that, though the law must tread in this area it should do so softly. As Lord Howe puts it (immediately before his conclusion):

‘…it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong.’

That is a clear signal to the judge who tries the facts of these cases in due course, and to future judges. Those signals, however, are unlikely to sway those people who are horrified by this latest assertion of legal power. One can expect a major constitutional debate (if not a full blown row) because the British judiciary has decided that the European Court of Human Rights has a say, in theory, over a cornerstone of national sovereignty: the conduct of defence policy abroad. Many people will question whether Sir David Maxwell Fife, who was instrumental in drafting the Convention, intended it to be applied in this way. It’s a fair question, though it might be answered by stating the obvious: the world and warfare (and democracies’ tolerance of warfare) have changed beyond recognition, and so the law must be updated.

The internal logic of the judgment is clear: the state at war must do everything it reasonably can to limit its casualties (a point that Sir David might have appreciated, given that he witnessed the Red Army’s bloody approach to defeating Hitler). This judgment should be a warning to governments that cut the military establishment with one hand while pressing for expensive interventions with the other. But there’s one final point to make: drones and machines are not subject to the Convention (at least where article 2 is concerned). In its way, this judgment is likely to change the way that government defends its citizens and interests.

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Show comments
  • Mike

    This problem was exemplified by Blair/Brown over Afghanistan where they knowingly put soldiers lives at risk by refusing to equip them properly. Added to this was the requirement for our soldiers to meet UK laws on rules of engagement in an area where no such rules were applied by the Taliban.

    Simply put, the government cherry picked what part of human rights it wanted to apply putting our troops at a disadvantage. If the other side doesn’t play by the normal rules of engagement then the gloves should be off and no charges should ever be brought against soldiers who might have exceeded their remit on how to fight terrorists.

    Unlike the USA, the UK signed up to this ridiculous human rights clap trap in a war zone where there’s almost as many legal advisers as warfare strategists that under international law will hamstring troops on what they can or can’t do. They seem to think that in a war no one gets killed and everyone follows a certain code of conduct but that’s just wishful thinking.

    Its only natural that having sold out our soldiers the human rights laws should now equally apply to a government for duty of care where previously the MoD could ignore this. Government has reaped what it sowed and it serves them right.

  • David Cameron

    I am NOT a citizen of the Government and will never be a citizen of the Government. i am a subject of Her Majesty the Queen, and a citizen of the United Kingdom. The Government is the servant of us all. It is a mistake to keep treating the Government as if it was the same as our nation, or worse, our Queen.

  • HookesLaw

    And where does this leave us where British lives are threatened and can only be rescued in a situation where less than perfect equipment can be used. Do we sit back and allow lives to be lost do we allow ourselves to be blackmailed? In more general terms the deployment into Afghanistan was out of choice.

    The deployment at the First Gulf War was an emergency out of a necessity to stop and repulse a naked aggression. Should we have waited 5 years to develop the necessary equipment? and during those 5 years the opposition would have been developing their own countermeasures.
    War is inherently uncertain and regularly fought with less than perfect equipment. Did our asinine law lords ever look at the long list of equipment being developed for our armed services? By no stretch of the imagination can we be said to be inherently careless of our soldiers lives.

    In any event if anyone should be sued over deploying troops with defective equipment it should be the Labour Party.

    • Barakzai

      ‘And where does this leave us . . . ‘
      Instead of Soviet-style political commissars interfering in the field we’ll probably end up with military formations’ Legal Advisers having the authority to veto commanders’ operational plans on the grounds that they may produce lawsuits. Let’s distestablish another infantry battalion or two, a frigate and a Typhoon squadron to make headroom for a new Joint ‘uman Rights Regiment. Mr Shiner can be its patron.

      • Mike

        Its no secret that there are lawyers trained in international warfare already deployed in Afghanistan to ensure we play by the ‘rules’ of and whether we can fire rockets or shoot at the enemy.

  • Bert3000

    The people who are peddling the offensive idea that our soldiers should have to be sent into battle again and again with utterly the wrong kit, putting their lives at risk because an incompetent ministry can’t be bothered to supply them properly, should be ashamed of themselves.

    • the viceroy’s gin

      The people who are peddling that offensive idea are all around you. Apparently, you believe the Brusselscrats will choose better for them than they can themselves. I doubt so.

  • swatnan

    The Supreme Court are mistaken in thinking that serving in the Armed Forces is like any other job and with the same employer employee relationship. Its more than that, and if it comes to it, in the words of Churchill: ‘We’ll fight them on the beaches … with only broomsticks … and wring their necks with our bare hands … if it comes to it.
    The Supreme Court has set a dangerous precedent.

    • Smithersjones2013

      It’s one thing when a nation is fighting for its survival (i.e. its at war). Its wholly another when some politician sends a professional army to a foreign land to interfere with that nations sovereignty on the premise that that country or something within it threatens the national security of the politicians nation

      I do not think its unreasonable to expect of those politicians that they have a care of duty to ensure that those professional soldiers they send into battle are fully prepared and properly equipped to a reasonable level to undertake the latter tasks.

      Granted such rulings put a core area of sovereignty at risk but given the way politicians have abused their power in such matters over the last decade or more this was inevitable. If we are to ask people to put their lives on the line we at least should ensure to a reasonable level that they can defend and care for themselves whilst they are doing it.

      As for the legal side of this. Yet another reason why we should withdraw fromn the ECHR. It’s none of Europe’s business.

    • Tom Tom

      Really ? If a British Soldier is subject to the Human Rights Act on a foreign battlefield as an “extension of the British State”, I think it perfectly logical that his General and every other Officer up to the Secretary of State should be bound in that chain of command and themselves be subject to the Human Rights Act all down the chain of command.

    • Mike

      It was Blair who signed up over international legal accountability for our troops whilst his wife made a packet suing the MoD when civilians were caught in the crossfire and our guys were held culpable. You can hardly blame them for turning it around and suing the MoD for failing duty of care.

  • nationalexistance

    Many atrocities have been committed under the auspices of the union flag.They show no sign of ending.
    When Scotland regains its independence it will no longer be complicit is such actions.

    • iviv44

      Whereas the relationship between communities within Scotland has always been sweetness and light? There is nothing as tragic as a myopic nationalist.

      • nationalexistance

        “There is nothing as tragic as a myopic nationalist.”

        Especially a British nationalist.

        • iviv44

          What is a “British nationalist” and why do they deserve such special attention in your view?

    • Gallafrey

      Why? what are you going to change?

      Have you a spyglass into the future?

    • HookesLaw

      Hardly, since Salmond says an independent Scotland will be in NATO and also the UN. So Scotland will be a part of these events. Its a UN and Nato operation Afghanistan.

      All this judgement means is that an independent Scotland would be forced to spend even more on its armed forces. Always assuming that given the cost of an independent supreme court it could afford any armed forces (and assuming that an independent Scottish supreme court cares as much for its soldiers equipment as a Union one does). Ever thought about the costs of an independent Scotland defending itself?

      • McClane

        What Salmond says doesn’t mean it will happen the way Salmond wants.

    • manonthebus

      Ahem! Did somebody mention Glencoe?