Challenging the combat immunity principle

Up until now, the law has been thought to be that one soldier does not owe a fellow soldier a duty of care in tort when either are engaged with an enemy in the course of combat and that the Ministry of Defence (MoD) is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.

For the purposes of the combat immunity principle, 'combat' has a wide meaning:

• the presence of (or contact with) the enemy is not necessary. Combat includes all active operations against the enemy in which service personnel are exposed to attack or the threat of attack, including attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement;
• it includes the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance; and
• it also includes peacekeeping and policing operations in which service personnel are exposed to attack or the threat of attack.

(See Multiple Claimants v MoD [2003] EWHC 1134, QB, Owen J).

In short, the combat immunity principle appears to cover all of the main threats to British troops in Afghanistan and Iraq, including the peacekeeping operations in the latter country and the equipment, logistics and supply chain, which have been criticised for not providing sufficient protective equipment, such as body armour and electronic countermeasures (ECMs) designed to protect personnel from improvised explosive devices (IEDs) favoured by the enemy. It covers accidents such as the tragedy of RAF Nimrod XV230 which caught fire and crashed following an airborne refuelling operation over Afghanistan on 2 September 2006. It also covers claims arising out of the failure to provide systems such as Blue Force Tracker, which reduces the risk of 'friendly fire'.

The future position '“ the human rights of service personnel serving abroad

The most fertile ground for limiting or reducing the scope of the combat immunity principle is one founded on the human rights of the personnel concerned. Article 2 (read with section 6 of the Human Rights Act 1998 (HRA)) imposes a positive obligation on a public authority to take reasonable steps to safeguard life.

Where Article 2 applies, a claimant may advance his claim on the basis that a public authority did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had, or ought to had, knowledge (see Osman v UK [1998] 5 BHRC 293).

The HRA brings the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) into domestic law, but only insofar as it has effect for the time being in relation to the UK (s 1(2) and

s 21 HRA). Article 1 of the ECHR provides that 'The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention'.

Baha Mousa

The MoD argues that 'within their jurisdiction' excludes service personnel serving in combat missions abroad. But this stance is unravelling. R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, HL, concerned a number of civilians allegedly killed in Basra by British troops, together with the now notorious case of Baha Mousa, a man beaten to death (this is properly accepted by the MoD) while held in a British military detention unit. The MoD accepted that the ECHR (but not the HRA) applied to Mr Mousa's case because he was within the jurisdiction of the UK when in military detention. The House of Lords decided (by a majority) that the HRA does apply to acts of public authorities abroad and therefore did apply to Mr Mousa while detained in a British facility. The MoD have decided to compensate Mr Mousa's family.

The other claimants in Al Skeini were unsuccessful because it was held that their deaths (in disputed circumstances) were not within the jurisdiction of the UK for the purposes of Article 1 of the ECHR.

'Will no one rid me of this turbulent coroner?'

On 11 April 2008, Collins J in the Administrative Court handed down judgment in an application to quash the inquisition of a controversial and outspoken coroner (R (on the application of Smith) v Assistant Deputy Coroner for Oxfordshire) (Smith). He granted the application and, in so doing, held that Article 2 of the ECHR applies to service personnel on active service abroad.

The case is under appeal and it should be borne in mind that it concerned the procedural obligation to hold an independent investigation which arises where it appears that there may have been a breach of Article 2. This derives from the theory that Article 2 would be emasculated unless the facts of a death were held up to independent scrutiny so that they became known to the public and to relatives of the deceased. In an inquest held in order to comply with this procedural obligation, publicly funded legal representation is available.

Smith provides strong obiter support for personal injury claims made under Article 2 (and s 7 of the Human Rights Act 1998 (HRA)). Provided that it survives scrutiny on appeal, it will foreshadow a dilution of the combat immunity principle. But by how much?

In Smith, Collins J referred to Mulcahy v Ministry of Defence [1996] 2 WLR 474, CA, saying that it accorded with the principle that the lives of members of the armed forces cannot receive absolute protection. Mulcahy concerned a soldier manning a howitzer in Saudi Arabia in the first Gulf War who claimed that he had suffered damage to his hearing as a result of the negligence of the gun commander while the gun was firing live rounds into Iraq. Crucially, his advisers conceded that, at the time he sustained his injury, he had been in a war zone taking part in warlike operations as a member of a gun crew which was engaged in firing shells on enemy targets. As a result of these concessions, the court held that the claimant's injury was sustained in battle conditions and that, accordingly, no cause of action existed. Smith appears not to question the result in Mulcahy.

Collins J drew a distinction between 'heat of the battle' cases, like Mulcahy, where no claim could arise, and cases where soldiers were sent out on patrol, or even into battle, with defective equipment, which could amount to a breach of Article 2. He took the example of the Crimean War in 1854 and said that the failure to provide proper medical attention (other than that provided by Florence Nightingale, perhaps!) and the failure of the Commissariat (to properly provide supplies) would today be regarded as a potential breach of Article 2, whereas the Charge of the Light Brigade (a dreadful tactical blunder resulting in huge losses) would not be regarded as a potential breach.

What sort of claim is now more likely to succeed?

There have already been a number of claims made by service personnel injured in the two main theatres of war and there is anecdotal evidence that the MoD are settling some claims, rather than seeking to rely on the combat immunity principle and thereby risking the creation of legally binding precedent which is unfavourable to their current stance.

Regrettably, British troops continue to suffer casualties in the two main conflict zones and Smith will do much encourage them to commence claims for damages, rather than relying on the very modest compensation scheme.

The court is very likely to remain highly resistant to the idea of permitting decisions or actions taken in the heat of battle to be subsequently held up to close scrutiny. It is likely to hold that the closer the alleged want of care to the heat of the battle, the less there is that can reasonably expected of the MoD to avoid a real and immediate risk to life. As Collins J suggested in Smith, it seems most unlikely that even a terrible mistake in the heat of battle will found a claim.

It is unlikely that the court will entertain claims which relate to the preparations shortly before engagements with the enemy.

The most fruitful area for claims are likely to be in relation to decisions made far away from the theatre of conflict, for example, the equipping of troops with protective equipment and the fitting of their vehicles and boats with ECMs. Shortcomings in the supply chain resulting in delays in equipment (including weaponry) reaching frontline troops are also likely to be fall on the right side of a newly limited combat immunity principle, should Smith survive higher judicial scrutiny.

Experience shows that financial pressures, especially those created by successful claims attended by the glare of publicity, can be very effective at forcing safety improvements. It may be that cases such as Smith and Al Skeini will lead to the sort of pressure which will make those serving in HM Forces a good deal safer.

The RAF faces questions about the maintenance and safety of its ageing Nimrod fleet and about the failure (until after the destruction of such an aircraft by small arms fire in Iraq on 30 January 2005 with the loss of 10 servicemen) to follow the long-standing American example of fitting the fuel tanks of its Hercules aircraft with explosion-suppressant foam (ESF), at a cost of £600,000 per aircraft. The families of those personnel may now be able to secure compensation for their loss which goes some way toward tipping the scales in future cost/benefit analyses of safety-related modifications.

It seems increasingly likely that the court will entertain claims about shortcomings on the part of the armed forces in decisions taken in the cold light of day, while remaining unmoved by criticisms of mistakes made in (or in relation to) the heat of battle.

Claims by civilians harmed by British troops serving abroad

Al Skeini shows that the prospects of Iraqi or Afghan civilians being able to bring claims arising out of the actions of mistakes British troops are extremely limited. The foundation stone required for any such claim would be proof that the UK had such effective control over the area as to enable it to provide the full package of rights and freedoms guaranteed by the ECHR to everyone within that area.

The risk of Smith opening the floodgates to numerous claims by foreign civilians is therefore low.

Conclusions

Warfare is changing. Wars between nations is giving way to asymmetric warfare where soldiers fight for peace rather than territory.

With the changing nature of military service, it is likely that we will see a change in the legal protections afforded to service personnel.