I can now link to Collins J’s judgment in the case that received lots of media coverage the other day, on the right to life and troops in Iraq – although it looks as though some further observations from Collins J on the Gentle case are still being transcribed.

Reading the judgment does make you realise the media fuss was perhaps overdone: the controversy can only really be about Collins J’s suggestion at para. 20 that a soldier

does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2. So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case.

Yes, there is a potential danger here, depending on what approach is taken to deciding whether equipment is “defective”, and how Collins J bases his simple assertion that the Charge of the Light Brigade would not breach article 2, I don’t know.

But the actual facts of the case were about a soldier who became ill inside a British base in Basra where the army was clearly in control (at least then, August 2003). I don’t think there can be much doubt that that’s within British jurisdiction applying Al Skeini; perhaps Collins J’s additional observations will distinguish the facts here from those of Gentle.

2008-04-18T14:16:00+00:00Tags: , , |