So, the Supreme Court has refused to allow these claims to be struck out on the principle of combat immunity. It has also asserted that jurisdiction for the purpose of an Article 2 right to life claim can extend to non-Convention countries, and that the state can owe a positive duty to protect life, even in a situation of armed combat.
This ruling deserves close attention not least because it takes common law negligence and Article 2 into an area which is very largely uncharted by previous authority. Lord Mance does not mince his words in his dissent, predicting that yesterday’s ruling will lead, inevitably, to the “judicialisation of war”. Lord Carnwath is similarly minded; in this case, he says, the Court is being asked to authorise an extension of the law of negligence (as indeed of Article 2), into a new field, without guidance from “any authority in the higher courts, in this country or any comparable jurisdiction, in which the state has been held liable for injuries sustained by its own soldiers in the course of active hostilities.” Lord Wilson also dissented on this point.
Since their Lordships were split on the enlargement of the duty of care and the scope of Article 2, the jurisdictional question need not occupy us for long, since it is the least controversial part of the judgment (although quite radical in itself).
The extra-territorial reach of Convention rights
Article 1 of the Convention requires states to do no more than secure the protection of rights to individuals within their jurisdiction. This essentially territorial notion was endorsed by the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435, para 67, where it said that it is only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. The leading authority on “exceptional circumstance” in this context is R (Al-Skeini) v Secretary of State for Defence  UKHL 26 which said that the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by article 1 of the Convention. The House of Lords in that case were unanimous that United Kingdom’s presence in Iraq fell far short of such control.
The Supreme Court found that this case could be distinguished from Al-Skeini in that the claimants there were Iraqi citizens. British servicemen, on the other hand, are under the complete control of the UK authorities and are subject exclusively to UK law.
So now the Catherine Smith formula – that the state’s armed forces abroad are not within its jurisdiction for the purposes of article 1 – can no longer be maintained, and Bancovic is no longer good authority for the jurisdictional rule. But how do we now know whether the state is exercising jurisdiction extra-territorially? The answer lies in the concept of “dividing and tailoring”., which the Grand Chamber in Strasbourg came up with when the Al-Skeini applicants came before them in 2011. In such situations it is usually unrealistic to suggest the whole package of rights should be available extra-territorially if the respondent state does not exercise effective control over the region in question. But it may be made responsible for the recognition of certain fundamental rights:
The concept of dividing and tailoring goes hand in hand with the principle that extra-territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual.
It is a small logical step from the above, to hold that the jurisdiction of the United Kingdom under article 1 of the Convention extends to securing the protection of Article 2 to members of the armed forces when they are serving outside its territory.
Lords Mance et al were prepared to go thus far, but no further.
Article 2: substantive obligations
The majority allowed the Snatch Land Rover and Challenge claims to go ahead on the basis that the positive duty under Article 2 requires the state to establish procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. There is nothing particularly new in this; as Owen J pointed out in Smith and others v MOD  these claims involve issues of procurement as well as allegations relating to operational decisions made by commanders. Of course it would not be appropriate to point the finger of blame at military tactics or commands in the fog of war. But a “middle ground” could be found between the wide margin of appreciation which must be given to those actively engaged in armed conflict, and where Article 2 should be given some content, for example in respect of operational errors which endanger life (as opposed to harm caused by tactical decisions).
Lord Mance finds that this middle ground is fertile territory for disastrous litigation in a field which would involve, in the context of claims for civil compensation, “extensive and highly sensitive review with the benefit of hindsight the United Kingdom’s country’s policies, strategy and tactics relating to the deployment and use of its armed forces in combat”. He particularly takes issue with Strasbourg’s reformulation of the law of tort in Stoyanovi v Bulgaria (Application No 42980/04), where it is suggested that the state may not be liable for breach of Article 2 where a death during an inherently dangerous training activity (in this case parachute training) was caused by the “casual negligence” of an individual. This means that the exception for casual acts of negligence is relevant to show that liability under Article 2 can be tailored and limited in what the Strasbourg court regards as appropriate circumstances. Lord Mance’s wintry suggestion is that
If the European Court considers that the Convention requires it to undertake the retrospective review of armed conflicts to adjudicate upon the relations between a state and its own soldiers, without recognising any principle similar to combat immunity, then it seems to me that a domestic court should await clear guidance from Strasbourg to that effect.
The cavalier approach by the Strasbourg court to the boundaries of national tort law do not inspire Lord Mance with confidence about the scope or application of any positive duties which that court might recognise under Article 2, nor is he “over-enamoured” by the cautionary warning the Supreme Court has issued to itself
that the road to Strasbourg is a one-way street, which a claimant can tread if this Court has not gone far enough, but which the state cannot tread if this Court goes too far.
Lord Carnwath agrees. The operational phases of the undertaking, which might otherwise under ordinary principles of tort law have been expected to give rise to a duty of care
are, as the claimants accept, the very phases which are excluded from review by the combat immunity defence. On the other hand the further back in time they seek to direct their challenge so as to include issues of planning, procurement, and training, the more they have to confront the competing principle that discretionary decisions about policy and resources are not justiciable.
You cannot have it both ways, say the dissenters. Either a matter is operational, in which case it is fog of war and therefore non justiciable. Or it is about policy and resource allocation, which is equally immune from attack in the courts. The same goes for the majority’s approach to the principle of combat immunity. As Lord Carnwath says, “the scope of combat immunity should now be discussed, not as a separate principle, but as part of the third element of the Caparo analysis”; in other words, it may be “fair” and “just” to expose decision makers in the field to liability in negligence for the harm they cause, but is it reasonable?
The combat immunity rule was established during WWII and extends to all active operations against the enemy. While in the course of actually operating against the enemy, the armed forces are under no duty of care to avoid causing loss or damage to those who may be affected by what they do. And this immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack, including the planning and preparation for the operations in which the armed forces may come under attack or meet armed resistance. The rule was endorsed and enhanced in Mulcahy v MOD , which established that there is no duty on the defendants in battle conditions to maintain a safe system of work.
Obviously, not every warlike operation done in time of war is an operation or an act of war. The majority accepted the argument that the Challenger ‘friendly fire’ claims in this case were about alleged failures in training, including pre-deployment and in-theatre training, and the provision of technology and equipment. They were directed to things that the claimants said should have been done long before the soldiers crossed the start line at the commencement of hostilities.
But the fact that the Challenger claimants had been careful not to make any criticism of those actually engaged on the ground should not be dispositive of the issue. The proper attribution of responsibility cannot depend upon how a claimant frames his case. If it were so, the MOD could have played the same game by advancing arguments that the real cause was due not to procurement, but to a commander on the ground.
In any event, looking at the leading authorities on police negligence, it would appear that the existence of a duty of care is generally negatived, even though in none of the cases could it be said that the police action or inaction occurred in the heat of the moment and the failings occurred over considerable periods when the police had the opportunity to think about and investigate the position and take protective measures: Van Colle v Chief Constable of the Hertfordshire Police , Brooks v Comr of Police of the Metropolis  and of course Hill v Chief Constable of West Yorkshire . These police cases are on all fours with the claims that the Ministry failed to ensure that the army was better equipped and trained; they all involve policy considerations of the same character. It is all too easy to underestimate the”inevitable inter-linking” of issues relating to the supply of technology and equipment and to training for active service with decisions taken on the ground during active service. In Lord Mance’s words, “allegations about procurement cannot be divorced from consideration of the conduct of those using the equipment on the ground.”
All such circumstances are inter-related and are therefore essentially non-justiciable. In reality, the Challenger complaint about tactics is masquerading as a complaint of failure to supply a better armoured or equipped vehicle to get around the combat immunity rule. The essence of claimants’ case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat should be able to sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Lord Mance points out the obvious implications of upholding this kind of claim:
Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court – maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment.
Hindsight is a wonderful thing and it will often not be difficult in retrospect to point to different decisions that might have been made or preparations made:
Would the disaster of Isandlwana have been avoided had the army command equipped Lord Chelmsford’s forces with the heliograph? Or was the cause the failure to form a laager? Or the deployment of troops over too wide a perimeter? Or the lack of screwdrivers to open the ammunition boxes quickly enough?
The approach taken by the majority will in Lord Mance’s view, make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army.
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