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The Armed Forces and Human Rights

Commentary, 26 June 2009
Law and Ethics, Military Personnel
When young men and women join the Armed Forces they do so with the full realisation that they may be required to lay down their life for their country. In return for this sacrifice, they should be afforded the same human rights protection as every other British citizen. The Equality and Human Rights Commission has worked to ensure that the human rights of military personnel are protected. It is with great pleasure that we join with them in celebrating Armed Forces Day 2009.

When young men and women join the Armed Forces they do so with the full realisation that they may be required to lay down their life for their country. In return for this sacrifice, they should be afforded the same human rights protection as every other British citizen. The Equality and Human Rights Commission has worked to ensure that the human rights of military personnel are protected. It is with great pleasure that we join with them in celebrating Armed Forces Day 2009.

By Susie Uppal, Director of Enforcement at the Equality and Human Rights Commission, for RUSI.org

Human Rights During Deployment

In May, the Court of Appeal upheld a High Court ruling that military personnel serving overseas are protected by Article 2 of the European Convention on Human Rights and the Human Rights Act of 1998. This protection applies whether or not they are physically on an armed forces base. The case was brought to the court after the death of Private Jason Smith who died in Iraq from a cardiac arrest brought on by hyperthermia. The Commission had intervened in the case when it was before the Court of Appeal.

The outcome of the case is that the Ministry of Defence (MoD) is compelled to take reasonable steps to ensure that the soldiers it sends to war are prepared, kitted out correctly and have adequate medical facilities.

The Commission recognises that the judgment does not imply that the MoD must protect soldiers at all costs as that would be patently impossible in operational situations. We have always recognised that nothing should be done to jeopardise the operational effectiveness of the Armed Forces.

The judgement did not address the issue of compensation to a family of a soldier killed due to a failure by the MoD to safeguard their human rights. The Human Rights Act imposes limits on the circumstances in which an award of damages may be made, with damages being a residual remedy to be adopted when other remedies cannot provide full reparation or afford ‘just satisfaction’.

Only a handful of reported cases have taken place in the UK where a Court has awarded monetary damages for a breach of the Human Rights Act and there is little evidence to suggest that this situation will change. This case, however, is likely to be cited in other cases due to come before the Courts regarding liability for the death of army personnel caused by defective equipment.

The ruling also means that future investigations into deaths similar to Jason Smith’s will have to be independent, open to scrutiny, and involve the family – who should be entitled to public funding for legal representation relating to the investigation. The end result will be that bereaved families will gain more information about the death of their loved one.

Equality, MoD and the Armed Forces

The Commission aims to reduce inequality, eliminate discrimination, strengthen good relations between all people, and promote and protect human rights, ensuring that everyone has a fair chance to participate in society.

For over a decade, both the Commission and its legacy Commissions (the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission) have worked with the MoD to ensure that the principles of equality are lived out in the Armed Forces and the MoD itself.

As a modern regulator, the Commission’s focus is on helping organisations to eliminate discrimination and promote equality by providing advice, guidance and active support. Where necessary, the Commission will use its legal powers to challenge organisations who do not comply.

In our current work with the MoD and Armed Forces, our focus is on ensuring that they accomplish their ‘diversity mission’ which is set out in their Equality and Diversity scheme. That mission is:

“to create a culture that encourages and enables people throughout society to join us, and remain with us, to make their distinctive contributions and achieve their full potential, and that does not tolerate any form of intimidation, humiliation, harassment, bullying or abuse and will ensure each individual is treated fairly, with dignity and respect. Our mission is to break down all barriers of discrimination, prejudice, fear or misunderstanding, which can damage operational effectiveness”.

For the Armed Forces, accomplishing the mission will enable it to realise its vision of being an environment free from bullying and harassment, where being a member of the Armed Forces means being treated fairly, and with dignity and respect.

The Commission is confident that our work with the Armed Forces and the MoD will see the MoD accomplishing is diversity mission, so we see a force that embraces equality and diversity and is protected by human rights.

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