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  • The European Convention on Human Rights Handcuffs Britain’s Armed Forces

    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.

    Posted in International [slideshow_deploy]

    4 Responses to The European Convention on Human Rights Handcuffs Britain’s Armed Forces

    1. Spiritof76, New Hamp says:

      I think living under a government that can not distinguish reality from fiction and is potentially exposing the country and its people to great harm is in itself a form of torture.

    2. Pingback: » The Charge of the Light Brigade Semper Idem: A blog on Irish politics, mainly.

    3. René C. Moya, says:


      That you have failed to make a coherent argument against the Court of Appeal's judicial reasoning would be evident to anyone familiar with this and similar cases. Fortunately for the United Kingdom the Court exercised a robust scrutiny of the facts severely lacking in your case analysis.

      Nevertheless, one need not even delve into the merits of the case to ignore this 'reasoned' submission. One need only pour over the following excerpt:

      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…Britain should withdraw from the European Convention on Human Rights.

      Not only are you making an unwarranted intervention in the affairs of a sovereign state, you also happen to make an entirely egregious one: you are making a factually INCORRECT link between the Court Appeal's judgment, the European Convention on Human Rights and the European Union. The European Convention of Human Rights is in no way a product of the European Union, but rather an instrument under the auspices of the Council of Europe. The EU and the Council of Europe are not the same organisation, as any first-year student of European law would be able to inform the authors of this bulletin.

      This fundamental error displays a spectacular lack of knowledge, and dare I say arrogance, on the relevant issues at stake–and all in an odious attempt to undermine British membership of the European Union. That is an act of political manipulation–not advocacy–and it is most unfortunate that you have chosen to use a judicial opinion for so political a purpose.

      You link the directives emanating from the European Commission with the case-law of the European Court of Human Rights–despite these two organisations not being related. You then assert that this ruling 'ultimately' stems from the EU–a risible assertion, perhaps, if it were not so abysmally untrue. And then there is the ideological motivation critiquing the European Union for its supposed 'pacifism'. This assertion is doubly facile: you confuse the aim and intent of the European Union–to promote and entrench peace between its member states–with a general pacifism that is in no way, shape or form relevant to the competences of the European Union. Had the authors of this opinion cared to read the relevant treaties they would soon realise–on the pain of being willfully disingenuous, if not outrightly deceitful–that matters of war and peace are solely the discretion of member states, with respect to EU law, and in no way curtailed by the Council of Europe and the Convention. Or how do the esteemed members of Heritage Foundation think British troops found themselves in Iraq in the first place?

      The above is a simple matter of law. That the Heritage Foundation tries to make a false equivalence between peace and pacifism, and in the event between peace and immorality, is a matter of principle and morality irrelevant, given the hollowness of the Foundation's opinion.


      René Christian Moya

    4. Douglas Young, Wilts says:

      René Christian Moya's analysis is correct. Your piece was full of schoolboy errors, including confusing the European Convention on Human Rights with the EU, and writing as if you had actually seen the ruling.

      In the original ruling which the Court of Appeal have now upheld, the judge recognised that soldiers cannot receive absolute protection from Article 2 – combat immunity will apply in battle conditions. But a soldier “does not lose all protection simply because he is in hostile territory carrying out dangerous operations”. Applying a historical analogy, the judge explained that: “failures to provide any adequate medical attention in the Crimean War would (breach the Human Rights Act), whereas the Charge of the Light Brigade would not”.

      The "Charge of the Light Brigade" of 1854 is to British eyes the classic military blunder, but the judge was saying that it would not have been a breach of the Human Rights Act and the European Convention of Human Rights.

      Your piece cites Winston Churchill as if he would have shared your distaste for the European Convention of Human Rights. In fact, he supported the Convention as a bulwark against the twin evils of fascism and communism. The lead drafter of the Convention was David Maxwell Fyfe (later Lord Kilmuir), a traditionalist member of Winston's own party.

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