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.