A state’s duty to protect its soldiers

The Ministry of Defence had maintained that the battlefield was beyond the reach of legislation, but now families of soldiers killed in Iraq have the right to sue

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There was, and there will continue to be, much howling from the Ministry of Defence and the top brass of the armed forces, following yesterday’s ruling from the Supreme Court.

In giving the families of soldiers killed in Iraq the right to sue the Government for damages under the Human Rights Act, it can be argued that the court has at a stroke altered the legal basis of service in the military and decisively tipped the balance in favour of the rank and file and against the state. The Ministry of Defence had maintained that the battlefield was beyond the reach of legislation – a view comprehensively rejected by the court.

In fact, the ruling may not have changed the relationship between serving soldiers and the state quite so definitively. The ruling opens the way for the bereaved families to sue. It has not dictated the final outcome. The onus is now on the families to prove that the Ministry of Defence was negligent in not providing sufficient protection for soldiers on active duty – and should pay compensation.

The specific claims relate to Snatch Land Rovers which, lawyers for the families say, not only provided quite inadequate protection against the improvised explosive devices (IEDs) that caused so many British casualties, but were well known to be inadequate by the Ministry of Defence. At the time, the flimsiness of the Snatch Land Rovers – dubbed by some “mobile coffins” – was often contrasted unfavourably with the robustness of the vehicles in which US troops travelled. The Land Rovers were progressively replaced by the light armoured Foxhound, both in Afghanistan and Iraq.

Quite aside from the actual merits of this particular case, the Supreme Court ruling will be criticised in some quarters as yet another example of the malign effect of European-inspired human rights legislation on the relationship between UK citizens and the State. Such a response would be misguided. A modern state has duties towards its citizens. If yesterday’s ruling results in a framework that further clarifies the responsibilities of the state, it will have done everyone – including the Ministry of Defence – a favour.

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