Yesterday, a British court ruled that the European Convention on Human Rights, which was written into British law by the Blair government’s 1998 Human Rights Act, applies to the British armed forces, no matter whether they are in Britain, on a British base overseas, or in combat. The Human Rights Act contains, among other provisions, the “right to life.” Therefore, the court found, the Ministry of Defence has a legal obligation to avoid or minimize risks to the forces, even if they are on patrol or actively engaged in combat.
The case was brought by the family of Private Jason Smith, who died of heatstroke while serving in Iraq in 2003. The family claimed that the case was about human rights, not liability, but the result of the ruling – which included expanding inquests by a coroner into every death in the forces – will be to expose the government, the Ministry, and individual commanders to lawsuits for failing to fulfill their legal obligations every time a soldier is killed.
As the Ministry pointed out, this can only discourage commanders from taking any risks at all during operations, and make it extremely difficult for Britain’s forces to cooperate with allies, such as the U.S., who are willing to take risks that their military professionals believe are necessary. There is not an operation in history that could have been conducted on the basis the court requires, and British commanders from Marlborough to Clive to Nelson to Montgomery – not to mention the British forces now serving in Afghanistan – would have achieved nothing at all if they had been held to this standard.
Of course, no British commander today deliberately embarks on operations that are going to lead to casualties without achieving any result. And of course, Britain has a moral duty to provide its forces with proper equipment. But this kind of absurd legalism applies standards that are proper to civilian life into the military realm, where they have no relevance at all, and where they will do immense damage to the ability of the armed forces to protect the state, and to achieve the mission that has been endorsed by Parliament.
The remedy for military errors must be found not in the courtroom, but in the Commons, the legislature to which even Winston Churchill, in the middle of the Second World War, remained responsible. This ruling is not simply a military fallacy, and an example of a profound failure of judgment, but also a direct attack by the judiciary on the sovereignty of the Commons and its ability to direct the forces of the state.
It is also a lesson in the dangers inherent in the constant expansion of European directives and mandates. Indeed, it is no surprise that this ruling stems, ultimately, from the European Union, which constantly seeks to undermine the sovereignty of Europe’s states and to impose its pacifist vision. That is what this ruling has achieved, in spades. The answer is simple: the Ministry of Defence must appeal, and Britain should withdraw from the European Convention on Human Rights. There is no other way to ensure that Britain’s forces remain subject to the decisions of military professionals, the direction of the Commons, and, ultimately, the will of the nation.
