In the news
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
Does the current jurisprudence on Article 1 of the ECHR create potential human rights problems in the Syrian conflict?
Reports of two British citizens killed by RAF drone strikes in Syria last week have thrown up a whole host of ethical and legal questions. Former Attorney General Dominic Grieve has already suggested the decision to launch the attack could be “legally reviewed or challenged”, while Defence Secretary Michael Fallon has made clear that the UK would not hesitate to launch such attacks in the future.
This post assesses the (European) human rights dimension of these targeted drone strikes, particularly in the wake of Al-Saadoon & Ors v Secretary of State for Defence  EWHC 715 (Admin). I must express gratitude to Dr Marko Milanovic, whose lectures at the Helsinki Summer Seminar and excellent posts on EJIL: Talk! greatly informed this post. Any mistakes are, of course, my own. Continue reading
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
The recent standoff between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.
Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.
Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance on judicial activism, particularly in the foreign policy sphere. I don’t agree. In his FA Mann Lecture last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light. Continue reading