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Family of soldiers killed in Iraq were told they can sue in landmark rulingReport says human rights cases restrict freedom of manoeuvre in battle
Government ‘concerned’ rulings could make carrying out operations harderLawyers dismiss findings as ‘biased’ and say cases are about ensuring troops are properly trained and equipped for battle


British military operations are at risk of being undermined by the march of European human rights laws and health and safety red tape into the battlefield, experts have warned.

Enemies could view the courtroom as a new front in any future conflict as a way of ‘paralysing’ the armed forces, a report by the Policy Exchange think tank said today.

Defence Secretary Philip Hammond admitted he was ‘concerned’ about recent court judgements which could make it ‘more difficult’ to carry out operations.

In a landmark ruling, the Supreme Court said in June that the families of soldiers killed in Iraq could launch claims for damages under negligence and human rights laws.

Lawyers representing relatives said the ruling meant the Ministry of Defence owed a duty of care to properly equip servicemen and women who went to war.


The government warned the decision could put national security at risk because it opened up war to ‘the uncertainty of litigation’.

Tom Tugendhat, one of the authors of the Policy Exchange report and a former military assistant to the chief of the defence staff, said: ‘Over the past decade, legal steps based on the European Convention on Human Rights have undone safeguards Parliament drew up to ensure military commanders have the freedom of manoeuvre to make vital decisions on the ground.

‘The armed forces neither are, nor should be, above or exempt from the law. But, imposing civilian norms on the military is deeply misplaced

‘The focus on rights misunderstands the nature of armed forces. As the ultimate guarantors of a nation’s liberty they have agreed, voluntarily, to surrender or limit many of their own rights. Without this the nation would be undefended.’

Laura Croft, a retired US Army lieutenant colonel and military lawyer, who co-wrote the report, said: ‘These judicial incursions into military terrain are not just changing military ethos and long-standing legal principles.

‘They are placing impossible burdens on the bureaucracy of military operations.

‘By setting precedents which can barely be satisfied in today’s limited conflicts the courts risk paralysing themselves and the military in a war of national survival particularly when to these are added the demands of coroners’ inquests, health and safety legislation and the rights guaranteed under the ECHR.

‘The paperwork alone would simply overwhelm the Ministry of Defence even if the findings of the eventual inquiries ascribed no blame.’


An Iraqi man who claims he was abused while being held captive by the British Army in Basra is among those taking legal action against the government.

Ahmed al-Fartoosi, the leader of the radical Shia cleric, Moqtada al Sadr’s militia, is claiming compensation after ‘being denied his rights under the European Convention on Human Rights.

Another Iraqi, Ali Al Jedda, is also taking action after Britain. He was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He denies the charge.

He sued the government citing Article 5 of the convention. His claim was dismissed by Britain’s Supreme Court but the case was overturned by the European Court of Human Rights.

The report said the MoD faced 5,827 claims in 2012-13 and lawyers cost the cash-strapped ministry £36 million a year.

It claimed: ‘It may not be long before either a foreign power or sub-state forces might begin to sponsor legal actions as a way of paralysing the armed forces through legal process.’

Martyn Day, a lawyer with Leigh Day, a company which has fought high profile cases against the MoD dismissed the report’s findings as ‘biased’.

‘This is an entirely biased report which seems to have been written with the full co-operation of the MoD.

‘We were not consulted and neither were our clients. Had we been, we believe this report would have been far more accurate.

‘The report states that the customs and practices of Britain’s armed forces are now under threat from the law. 

‘We would argue that it is the breaking of these laws which is the greatest threat to those who “risk all for their country”.

‘This includes not training or equipping soldiers adequately before putting service personnel into a combat zone.

‘We find it very disconcerting that the Government of law and order seem so intent on desecrating the legal system, ignoring the safeguards the law provides for all individuals and continues to act unlawfully through its many departments including the MoD.

‘Greater adherence to the laws, both domestic and international, are the only way in which the MoD’s litigation will decrease.’

However, Mr Hammond welcomed the report and said: ‘I remain concerned about the challenge to combat immunity arising from recent court judgements.

‘These could make it more difficult for our troops to carry out operations in the future, and they potentially throw open a wide range of military decisions to the uncertainty of litigation.

‘It cannot be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security.’

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