Supreme Court unanimously affirms human rights protection for troops overseas

Today, seven justices of the Supreme Court unanimously reject an attempt by the Ministry of Defence to legally exclude armed forces personnel operating overseas from the protection of the Human Rights Act 1998 (“HRA 1998”).
In Smith & Others v Ministry of Defence, families of troops killed in Iraq during operations asked the Supreme Court to overturn the conclusion of the Court of Appeal that the European Convention on Human Rights – and the HRA 1998 – did not apply to the relationship between the UK and its forces off-base overseas.

Civilians killed in operations overseas are afforded the protection of the Convention by virtue of the activities of the UK and its troops overseas; the troops enjoy the protection of the Convention on base; and fair trial standards apply during courts martial. The Ministry of Defence fought this case to argue that the Convention must cease to apply when troops step off base.

JUSTICE intervened to urge the Supreme Court to find that the relationship between the UK and its forces means that they carry the protection of UK law with them overseas, including the human rights protections in the HRA 1998. We argued that the anomalies created by any other conclusion would be extraordinary.

We welcome today’s judgment and the unanimous opinion of the Justices that troops carry the protection of UK law with them while they are on duty, by virtue of the fact that they remain under the authority and control of the UK throughout their service.

As explained by Lord Hope, it would be illogical for actions of troops to attract liability without them being within the scope of our law:

Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the state’s behalf. [52]

JUSTICE’s Director, Andrea Coomber, said:

The human rights of UK troops should be protected wherever they serve. The Government’s case would have had them shoulder the burdens of serving this country, but not protected by its most fundamental safeguards.

A step left or right over a boundary fence cannot be the ultimate arbiter of whether we owe a duty to our troops or not. We welcome this clear and sensible judgment of the Supreme Court.

For further comment, please contact Angela Patrick, Director of Human Rights Policy on 020 7762 6415 (direct line) or

Notes for editors

  1. The Supreme Court will give its judgment in the case of Smith & Ors v Ministry of Defence on 19 June 2013. The Court of Appeal judgment in this case can be viewed here
  2. The summary of facts and issues in the case provided by the Supreme Court is set out below. The JUSTICE intervention is limited to the first issue, on the application of Article 1 ECHR:

The claims in the first two appeals arise from the deaths of UK soldiers on duty in Iraq when the Snatch Land Rovers in which they were travelling took the impact of an improvised explosive device detonated beside the vehicle. These appellants allege that the respondent was in breach of the obligation to safeguard life protected by Article 2 ECHR by failing to provide suitably armoured vehicles. The second and third appellants also allege that the respondent was negligent in failing to provide suitable equipment and in deciding to put the Snatch Land Rovers back into use after they were withdrawn following the first death.


Whether on the facts as pleaded in the particulars of claim:

  1. British soldiers killed during military operations abroad were, at the time of their deaths, within the jurisdiction of the United Kingdom for the purposes of Article 1 of the ECHR.
  2. the Court is satisfied that the Defendant did not owe a duty to the deceased soldiers at the time of their deaths pursuant to Article 2 ECHR.
  3. the complaints of negligence are covered by the doctrine of combat immunity and/or it would otherwise not be fair, just and reasonable to impose a duty of care on the MOD (Ministry of Defence) in the circumstances of the case.

3. JUSTICE’s intervention in the case is available online

4. JUSTICE was kindly represented pro-bono by Alex Bailin QC (Matrix), Iain Steele (Blackstone Chambers), Eddie Craven (Matrix) and Herbert  Smith Freehills.