Last week the UK Supreme Court delivered its judgment in Smith (No. 2) v. The Ministy of Defence (judgment; BBC News report). This is a follow-up to the Smith (No. 1) case decided three years ago, with a different set of plaintiffs, but on the same issue – whether and how the European Convention on Human Rights applies extraterritorially to protect British troops abroad, specifically when British troops operate in areas not under UK control. In Smith No. 1, the Supreme Court, basing itself on Bankovic and the House of Lords Al-Skeini judgment, found that UK soldiers were not within UK jurisdiction for Article 1 ECHR purposes when they operated in areas outside UK control. A similar case, Pritchard, is currently pending before the European Court; for more background, see my case law update from last month. These cases are essentially Al-Skeini in reverse, since they concern the human rights of soldiers vis-a-vis their own government, rather than the rights of other persons that these soldiers affect through their own conduct.
The Smith No. 2 case concerned two sets of claims: one dealing with the alleged failure of UK authorities to properly equip their Challenger tanks with targeting equipment that would have allowed them to avoid a friendly fire incident, and the other dealing with various decisions of the UK authorities that allowed British soldiers in Iraq to use Snatch Land Rovers on patrol, these vehicles providing little or no protection from improvised explosive devices. The first set of claims was brought entirely under the common law, and I will not deal with it here; the second was partly based on the Article 2 ECHR substantive positive obligations of the UK to secure the right to life of its soldiers in the field.
In light of the European Court’s Al-Skeini judgment, the Supreme Court unanimously reversed its ruling in Smith No. 1, finding that the applicants were within the UK’s jurisdiction and that accordingly the ECHR applied, and by 4 votes to 3 allowed the claims to proceed to trial. The judgment is remarkable for a number of reasons.
First, as an example of judicial dialogue on the Article 1 jurisdiction issue. The Supreme Court unanimously reversed its Smith No. 1 ruling, with even the otherwise dissenting judges agreeing – Lord Mance, joined by Lord Wilson, para. 102; Lord Carnwath, para. 153. (Notably, five of the Smith No. 2 justices sat on Smith No. 1, three of whom – Lady Hale, Lord Mance, and Lord Kerr, were in the minority in No. 1 on the jurisdiction issue). It did so even though the ECtHR Al-Skeini judgment did not directly compel this reversal, as I explained in my previous post, and as explicitly acknowledged by Lord Hope at para. 42, writing for the majority and indeed the entire Court on the jurisdiction issue.
Rather, the Court decided to reverse Smith No. 1 because the Grand Chamber’s Al-Skeini judgment overturned some of the predicates on which Smith No. 1 was based: the Bankovic focus on the spatial model of jurisdiction as state control over areas and disregard for the personal model of jurisdiction as authority and control over individuals; the similar focus on regionalism; the indivisibility point on how the ECHR cannot be divided and tailored according to the circumstances, but applies in an all or nothing package. Most importantly, the Grand Chamber itself showed willingness to adjust its own approach to questions of jurisdiction, essentially by partially overruling Bankovic, even if not openly admitting to doing so. Accordingly, Lord Hope concluded (at para. 55) that UK soldiers operating abroad are within UK jurisdiction under the personal model.
Second, this sets the stage for further dialogue with the European Court in its pending decision in Pritchard. I’m sure the European Court will treat the unanimous, considered views of seven justices of the UK Supreme Court with some weight in coming to its own opinion on whether the Convention generally applies extraterritorially to the soldiers of contracting states acting abroad. If the European Court affirms the Smith No. 2 approach, this principle will of course extend to all 47 member states. It moreover doesn’t seem to be possible to easily limit it by use of the vague and rather arbitrary ‘public powers’ criterion that the Court had earlier used in Al-Skeini to limit the personal model of jurisdiction with regard to the use of force by state agents.
This may lead to questionable or inconsistent results. For instance, a friendly-fire incident would be covered by the Convention, since any deceased soldier would be under his state’s authority and control, whereas the death of a civilian standing right next to the dead soldier might not be, if the state is not exercising ‘public powers,’ whatever these exactly may be (in that regard, in Lord Hope’s view the UK did not have such public powers at the time of the incidents in Smith No. 2, as the occupation had formally ended – para. 41). We will thus see whether Pritchard will involve re-litigating some of these issues.
Third, the most important contribution of Smith No. 2 is not in the jurisdiction issue, but in its examination of the merits of the Article 2 claim. This is where considerations of effectiveness come into play the most. All of the justices felt that it would be highly improper for them to expose executive decisionmaking in a battlefield context, whether strategic or operational, to intense judicial scrutiny. However, whereas the four justices in the majority felt there was some space for judicial supervision even while according the government much deference and a wide margin of appreciation, for the the three justices in the minority the various factual issues were so entangled with policy and political judgments made by the government and the military that any kind of judicial intervention would be inappropriate.
There are a number of points of interest here. For example, at paras. 59-61 Lord Hope dismisses the possibility and even utility of derogations under Article 15 ECHR in resolving the kind of issues that were at hand in this case, particularly because of the extraterritorial context:
I do not think therefore that it would be right to assume that concern about the practical consequences in situations such as those with which we are dealing in this case can be answered by exercising the power to derogate. The circumstances in which that power can properly be exercised are far removed from those where operations are undertaken overseas with a view to eliminating or controlling threats to the nation’s security. The jurisprudence of the Strasbourg court shows that there are other ways in which such concerns may be met. … The Strasbourg court has repeatedly emphasised that, when it comes to an assessment of the positive obligations that are to be inferred from the application in any given case of the Convention rights, a fair balance must be struck between the competing interests of the individual and of the community as a whole. It has also recognised that there will usually be a wide margin of appreciation if the state is required to strike a balance between private and public interests and Convention rights.
What one thus needed is a flexible analysis on the merits that would give due deference to the executive and separate those issues for which judicial scrutiny is appropriate from those for which it is not (paras. 64-66):
The extent to which the application of the substantive obligation under article 2 to military operations may be held to be impossible or inappropriate will, however, vary according to the context. Military operations conducted in the face of the enemy are inherently unpredictable. There is a fundamental difference between manoeuvres conducted under controlled conditions in the training area which can be accurately planned for, and what happens when troops are deployed on active service in situations over which they do not have complete control. As Lord Rodger observed in Catherine Smith, para 122, the job of members of the armed forces involves their being deployed in situations where, as they well know, opposing forces will be making a determined effort, and using all their resources, to kill and injure them. The best laid plan rarely survives initial contact with the enemy. The best intelligence cannot predict with complete accuracy how the enemy will behave, or what equipment will be needed to meet the tactics and devices that he may use to achieve his own ends. Speed may be essential if the momentum of an attack is to be maintained or to strengthen a line of defence. But lines of communication may become stretched. Situations may develop where it is simply not possible to provide troops in time with all they need to conduct operations with the minimum of casualties. Things tend to look and feel very different on the battlefield from the way they look on such charts and images as those behind the lines may have available to them. A court should be very slow indeed to question operational decisions made on the ground by commanders, whatever their rank or level of seniority.
Then there is the issue of procurement. In A v Secretary of State for the Home Department  2 AC 68, para 29, Lord Bingham said that the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision. The allocation of resources to the armed services and as between the different branches of the services, is also a question which is more appropriate for political resolution than it is by a court. Much of the equipment in use by the armed forces today is the product of advanced technology, is extremely sophisticated and comes at a very high price. Procurement depends ultimately on the allocation of resources. This may in turn be influenced as much by political judgment as by the judgment of senior commanders in Whitehall as to what they need for the operations they are asked to carry out. It does not follow from the fact that decisions about procurement are taken remote from the battlefield that they will always be appropriate for review by the courts.
This, then, is a field of human activity which the law should enter into with great caution. Various international measures, such as those contained in the 3rd Geneva Convention of 1929 to protect prisoners of war, have been entered into to avoid unnecessary hardship to non-combatants. But subjecting the operations of the military while on active service to the close scrutiny that may be practicable and appropriate in the interests of safety in the barrack block or in the training area is an entirely different matter. It risks undermining the ability of a state to defend itself, or its interests, at home or abroad. The world is a dangerous place, and states cannot disable themselves from meeting its challenges. Ultimately democracy itself may be at risk.
Upon reviewing some (relatively) relevant Strasbourg authorities, he concluded that (para. 76):
The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case.
Lord Hope and the majority thought that there was some room to find this middle ground on the facts of the present case, which should therefore be allowed to proceed to trial where all the relevant issues could be explored in detail. But (para. 81):
The claimants are, however, on notice that the trial judge will be expected to follow the guidance set out in this judgment as to the very wide measure of discretion which must be accorded to those who were responsible on the ground for the planning and conduct of the operations during which these soldiers lost their lives and also to the way issues as to procurement too should be approached. It is far from clear that they will be able to show that the implied positive obligation under article 2(1) of the Convention to take preventative operational measures was breached in either case.
In short, even though their claims will not be struck out, the claimants were warned that they are not likely to prevail, and implicitly that for them to do so they need to make a narrow, specific, and not overly ambitious or interventionist case. For the three justices in the minority, however, even this was going too far, and they would have struck out the claims now. The opinion of Lord Mance in particular casts serious doubts as to the propriety of judicial intervention in an ellusive middle ground that could hardly be distinguished from areas in which deference to the executive was appropriate, with the potential flood of litigation seriously undermining the effectiveness of the executive in the performance of its functions.
In sum, regardless of whether one agrees with the majority or the minority this is a deep, thoughtful judgment, from which Strasbourg will also hopefully draw some lessons. It exposes the dynamics between universality and effectiveness that permeate all cases of extraterritorial application, but in doing so it refuses to use the jurisdiction issue as a proxy for dealing (or not) with the merits of very difficult problems. As I argue at length in my book, there is a price to pay for the application of human rights extraterritorially and in armed conflict, and that is the watering down of human rights protections designed for conditions of normalcy. Yet that price must not be so high as to, on the one hand, render the application of human rights completely ineffectual in practice, or, on the other, compromise the integrity of the whole human rights regime. The disagreement between the majority and the minority in Smith No. 2 is precisely in the outcome of this calculus, but not in its basic parameters. We will see how the case unfolds back at trial, and how Strasbourg will respond.