Whether a soldier on the battlefield has the right to life is to be debated by the highest court in the UK in a landmark case that is likely to have major ramifications for the armed forces, The Independent has learned.
Seven years after he perished in a lawless, lethal part of Iraq, the circumstances surrounding the death of a young infantryman, Private Phillip Hewett, will be laid bare before the Supreme Court after it agreed this week to examine whether troops are covered by Article 2 of the European Convention on Human Rights – which protects the right to life – when fighting in war zones such as Iraq or Afghanistan.
The decision to hear the case is a testament to the tenacity of Pte Hewett’s mother Sue Smith, a Midlands community care worker who has battled for justice since the day in July 2005 when her son was blown up in a Snatch armoured Land Rover and killed alongside two fellow members of the Staffordshire Regiment.
A previous attempt to give troops human rights’ protection off bases in operational theatres was rejected as “absurd” by then defence secretary Liam Fox but legal experts argue it is only fair to afford soldiers who risk their lives for their country the same rights as anyone else.
Currently servicemen and women serving on bases in Afghanistan are covered by human rights law but this protection dissipates the moment they walk out the gate. Yet last year the European Court of Human Rights ruled in the case of Al-Skeini that Iraqi citizens killed when the UK was effectively the occupying force in Southern Iraq were protected by the European convention.
“It is anomalous that, as the law currently stands, that soldiers are capable of bringing others within UK jurisdiction but they are not within it themselves. We afford Iraqi citizens rights of protection which we can't even give to our own soldiers,” said Jocelyn Cockburn, Mrs Smith's solicitor.
She added she hoped that the Strasbourg ruling would“enormously strengthen” their argument when it goes before the Supreme Court next year. Seven justices will examine the case at a three-day hearing in February after agreeing to hear an appeal following the Court of Appeal's decision to strike out an Article 2 claim by Mrs Smith and the families of two other soldiers who were also killed while travelling in Snatch vehicles in Iraq.
For Mrs Smith, 51, it is the culmination of a five-year legal battle against the Ministry of Defence: “It actually gives me a little bit of faith back. Sometimes I feel the government is in control of everything that I am fighting a system that everybody works for. It is nice to know that I might have a chance.
“I find it disgusting that we employ soldiers to defend our country and send them out without any human rights yet we criticise other countries for not honouring their human rights.”
In the early hours of 16 July 2005 Pte Hewett, 21, and his fellow soldiers from the 1st Battalion, the Staffordshire Regiment were on patrol through the notoriously volatile town of Al Amarah when they were hit by a roadside bomb. Pte Hewett's friends fought to save the young man known for his “cheerful, lively” nature but he died of his wounds alongside two other soldiers.
Eight months later Private Lee Ellis, 23, of 2nd Battalion, The Parachute Regiment was killed by a roadside bomb in the same area. The following year Lance Corporal Kirk Redpath, 22, of 1st Battalion, Irish Guards, died near Basra. All three were travelling in the Snatch, a vehicle so vulnerable to bombs that it would earn the nickname the mobile coffin and eventually be withdrawn from combat operations.
Three weeks ago Pte Ellis's family, along with victims of a friendly fire attack, won a landmark victory after the Court of Appeal ruled they could pursue damages claims against the Government on the grounds of negligence. But the judges rejected an argument put on behalf of Mrs Smith as well Kirk Redpath's father Colin and the Ellis family that they also had a claim under Article 2 of the ECHR, accepting the Government’s assertion that the battlefield was beyond the reach of litigation.
In 2010 judges at the Supreme Court dismissed claims that British soldiers in the battlefield should be protected by the Human Rights Act. While stating that a territorial army soldier who died of heat stroke on base was within UK jurisdiction, they ruled that protection was lifted the moment service personnel step out the gate.
Then defence secretary Liam Fox described it as a victory for common sense, adding: “It is right that orders given in the heat of battle should not be questioned by lawyers at a later date. It would have been absurd to try to apply the same legal considerations on the battlefield that exist in non-combat situations.”
But John Wadham, General Counsel for the Equality and Human Rights Commission explained that Article 2 does not offer absolute protection but simply places a responsibility on the state to protect life in the context of the situation.
“Extending human rights protection is not about individual decisions in the heat of battle but ensuring that when we send soldiers off to war they are properly prepared, kitted out correctly and with equipment fit for combat. If they get killed by the enemy obviously there is no breach of Article 2 if the army has done its best to protect them,” he said.
He continued: “Soldiers have been required to lay down their lives for their country and in return should be afforded full human rights protections.”
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