Smith and Others (Appellants) v The Ministry of Defence (Respondent) and other appeals – read judgment and our previous post for summary of the facts
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 →
Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.
I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.
You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.
Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?
Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
Twaite, Re Appeal against conviction  EWCA Crim 2973 – Read judgment
In an interesting decision on fair trial rights under article 6 of the European Convention, the Court of Appeal been ruled that a court martial conviction by majority neither not inherently unsafe or in breach of human rights.
Mr Twaite had been accused fraud while serving in the armed forces. He and his fiancée had been given particular military accommodation on the basis that they were getting married on 28 August 2008. In a form which Mr Twaite submitted he had allegedly been dishonest by stating that he was getting married on that date. In fact he did not marry until a year later.
The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.
The long-standing ban on homosexuals serving in the United States military has been struck down by the US Senate. Now the repeal needs to be confirmed by President Obama, who is a long-standing opponent of the ban.
The Senate voted 65 to 31 to approve a repeal of the Clinton-era policy which sought to diminish the ban by not asking soldiers about their sexual orientation, but also requiring them to keep it a secret during their service. It was argued that this policy ultimately led to discrimination which was found to be unconstitutional.
R (Smith) v Secretary of State for Defence & Anor  UKSC 29 – Read judgment
The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.
The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.
The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.
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