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. Continue reading