JURIST - Paper Chase: UK court rules European human rights laws apply to soldiers in Iraq

[JURIST] The England and Wales Court of Appeal (Civil Division) on Monday ruled [judgment text] that the European Convention on Human Rights (ECHR) [text] applies to UK troops serving abroad. The court found that the UK's obligation under the Human Rights Act of 1998 [text], which implemented the ECHR in the UK, extends in some cases beyond territorial jurisdiction, including foreign service by military personnel. Writing for the court, Sir Anthony Clarke noted that Ministry of Defence (MOD) [official website] did not challenge the exercise of jurisdiction when soldiers were on base, but wrote:

it seems to us to make no sense to hold that there is a distinction between a person inside and outside premises controlled by the UK, whether he or she is a consul or a soldier. The distinction raises questions such as whether the soldier or consul is protected in a vehicle or an ambulance. If in a hospital, why not in an ambulance? If in a British base or consulate, why not in a British army vehicle? If in a vehicle, why not when the soldier gets out of the vehicle?

The case arose from a coroner's inquiry into the June 2003 death of Territorial Army [official website] Private Jason Smith in Basra. The Assistant Deputy Coroner for Oxfordshire Andrew Walker [BBC profile] found that Smith's death came as a result of "a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate," prompting Smith's family to file suit against the MOD.

The Court upheld an April 2008 ruling [JURIST report] by the High Court that British service members are entitled to legal protection of their human rights "wherever they may be." In September, the MOD admitted to abusing [JURIST report] nine Iraqi detainees, but denied that the HRA or ECHR applied to "Camp Breadbasket," the aid distribution center where the abuse occurred. Four soldiers were found guilty and sentenced to prison [JURIST reports] in connection with the abuse. In October, US State Department legal adviser John Bellinger III [JURIST news archive] told the Guardian newspaper that UK troops were refusing to detain suspected insurgents [JURIST report] for fear that they would be liable for their actions under UK and European human rights law.

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