Off Topic: Bizarre UK Human Rights ruling

[Cpl Steiner]

Did anyone see the report below:

Courts rule British soldiers covered by right to life

I know this is off-topic but as the British Forces module is coming soon I thought it was relevant.

This ruling seems totally perverse to me. It's well intentioned in that it is designed to force the MOD to ensure soldiers in the field receive the proper training and equipment to do their job, but seems like a sledge-hammer to crack a nut.

The very concept of a "right to life" on a battlefield is itself laughable in my opinion.

What do the rest of the forum think?

[Guinnessman]

Bit of a tricky one I think, and it will be interesting to see how it pans out.

This particular case did not involve a combat death, although I note in the article the judge had ruled against the MoD when they tried to exempt UK forces 'beyond the wire' of a friendly base from the Human Rights Act. I don't see how the HRA can be applied on a battlefield either.

On saying that it's not suprising something like this has happened, as the MoD have really dropped the ball in providing decent equipment and training for deployed forces until recently.

On a related note (and on much firmer ground for me) the police are also covered by the HRA, but there's never been a case that I'm aware of when a police officer has been murdered and the family were able to sue because he or she had a right to life that the force didn't protect. And that's included instances when armed criminals have killed unarmed police officers. From that perspective, I wouldn't expect my family to sue my force if I stumbled across an armed robbery and took the 9mm pension plan. Nor would I expect a soldiers family to sue if he/she was properly equipped and took an AK round to the face, or a direct hit by an RPG etc. There's only so much you can do.

[Cpl Steiner]

I wouldn't expect my family to sue my force if I stumbled across an armed robbery and took the 9mm pension plan. Nor would I expect a soldiers family to sue if he/she was properly equipped and took an AK round to the face, or a direct hit by an RPG etc. There's only so much you can do.

I take your point but whether or not a case was actually brought it troubles me that these supposedly intelligent high court judges can rule that an inalienable human right not to be killed extends to soldiers in combat.

In fact, one could go so far as to say this ruling actually shows how illogical human rights law is in general. Does a drowning man have the right to life? Does an astronaught who's oxygen is running out have a right to life? You can have a desire not to be killed but an inalienable (dictionary definition: inviolate, unassailable or absolute) right to life no matter what the circumstances is frankly ridiculous.

[George MC]

"RIGHT TO LIFE

1.

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a)

in defence of any person from unlawful violence;

(

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

©

in action lawfully taken for the purpose of quelling a riot or insurrection."

Not really looking for a debate here. I can see the irony of the Human Rights Act being used to saveguard soldiers right to life given the occupation. FWIW the opening article of the Human Rights Act.

[Dietrich]

This reminds me of one of the more odd aspects of the North Hollywood shootout: in the immediate aftermath of the incident, after Larry Phillips had shot himself dead (he had been hit by bullets 10 times) and Emil Matasareanu had been subdued (he had been hit by bullets 29 times), law enforcement personnel were still operating under the impression that there was a third gunman in the area. The ambulance personnel dispatched to the scene thus followed standard procedure by refusing to enter the "hot zone". By the time LE personnel determined that there were no other armed suspects in the area and the ambulance personnel were given access to Matasareanu, he had already bled to death. A lawsuit filed against members of the LAPD on behalf of Matasareanu's family claimed that Matasareanu's civil rights were violated and that he was allowed to bleed to death. According to Wikipedia, quoting the website of the Law Offices of Goldberg and Gage, "the suit was later dropped when Matasareanu's family agreed to dismiss the action with a waiver of malicious prosecution."

Not really looking for a debate here. I can see the irony of the Human Rights Act being used to saveguard soldiers right to life given the occupation. FWIW the opening article of the Human Rights Act.

Could the subpoints of "2" be taken in total to mean that if even if a person performs "unlawful violence" (such as using multiple illegal weapons to shoot multiple police officers) and is shot and wounded in the course of a "lawful arrest" being effected upon him, any deprivation of [his] life resultant therefrom would not be regarded as being in contravention of the above-cited Article?

[Clavicula_Nox]

Why are we letting lawyers run our countries?

[Guinnessman]

Could the subpoints of "2" be taken in total to mean that if even if a person performs "unlawful violence" (such as using multiple illegal weapons to shoot multiple police officers) and is shot and wounded in the course of a "lawful arrest" being effected upon him, any deprivation of [his] life resultant therefrom would not be regarded as being in contravention of the above-cited Article?

Basically, yep. Although I'm not an armed officer, my brother is an AFO - part of their training covers the HRA and if it were necessary to shoot a suspect (as long as it was justified) then it wouldn't contravene the HRA. In saying that, if a suspect was shot and wounded, officers would be expected to perform first aid etc. As long as it was safe to do so of course, which in the context of the North Hollywood shootout wasn't the percieved case by the cops on scene at the time.

Interestingly enough, the opening article of the HRA isn't actually anything outrageous or restrictive. It really just lays out in what is pretty much law already in most countries. In a nutshell, all it says is 'don't kill anyone unless you really, really have to'.

The sticky point in the ruling against the MoD is the 'duty of care' aspect which appears later on in the HRA. I completely agree that the MoD - or indeed the equivalent in any other nation - has a practical and moral obligation to ensure that troops have the best training and equipment that can be realistically made available to them. However the HRA also states something along the lines of 'there is a duty to prevent reasonably forseeable loss of life' which I think is going to be the most relevant aspect for the MoD.

I would interpret this as meaning you can't send soldiers into a combat zone without body armour, decent weapons, adequate ammo, proper acclitimisation and so on. However, I think the concern among the military is: 'what is the definition of reasonably forseeable'. If a company commander sends a platoon to storm a Taleban-held compound in the Green Zone, and one of his soldiers is killed, could it be interpreted that this loss was seen as reasonably forseeable by certain people?

It's gonna be one for the lawyers to argue over by the sounds of it.

[acrashb]

Does a drowning man have the right to life? Does an astronaut whose oxygen is running out have a right to life?

Yes, and yes. The right to life is the right to act freely for one's self-preservation. It is not a right to be immune from accidental or careless death - in other words, it is a right related to your treatment by other persons, and it is both natural and inalienable.

If someone takes a flotation device from a drowning person or in other ways interferes with their efforts to save themselves, that's a violation of the person's rights. If the ocean overwhelms a guy in the water, that's just bad planning or bad luck or both.

Having said that, risking harm is part of signing up. If any right to life comes into play, it would protect soldiers from arbitrary execution at the hands of officers, but certainly not for putting them in harm's way in the furtherance of military objective.

There is also a case for action against soldiers who unreasonably increase the risk to their fellows through gross negligence - but that would be handled by military law.

[ASL Veteran]

I sure hope there is a statute of limitations on this law because I'm sure there are a few thousand relatives of any serviceman who was killed on the Somme who might like to sue the British government for recklessly trampling over the soldier's human rights during that offensive. Gallipoli might be another instance where soldier's human rights were violated. So many soldiers died from sickness and disease there! I wonder if there could be a case made that putting British soldiers in the early Shermans that 'lit up everytime' was a violation of their human rights? Certainly a case could be made that the Sherman was defective due to it's tendency to immolate it's crews when hit. At a minimum it should be brought before a judge so that judge could make an informed decision on the merits of the case. Maybe even some compensation could be granted to the relatives of soldiers whose human rights were violated at Isandahlwana?

[bodkin]

If you watch recruitment ads for the army you only see people having a great time or helping out in natural disasters etc. There's no mention of being shot at.

Which reminds me of the Monty Python sketch where a young recruit goes to see his officer:

Watkins: I'd like to leave the army please, sir.

Colonel: Good heavens man, why?

Watkins: It's dangerous.

Colonel: What?

Watkins: There are people with guns out there, sir.

Colonel: What?

Watkins: Real guns, sir. Not toy ones, sir. Proper ones, sir. They've all got 'em. All of 'em, sir. And some of 'em have got tanks.

Colonel: Watkins, they are on our side.

Watkins: And grenades, sir. And machine guns, sir. So I'd like to leave, sir, before I get killed, please.

Colonel: Watkins, you've only been in the army a day.

Watkins: I know sir but people get killed, properly dead, sir, no barley cross fingers, sir. A bloke was telling me, if you're in the army and there's a war you have to go and fight.

Colonel: That's true.

Watkins: Well I mean, blimey, I mean if it was a big war somebody could be hurt.

Colonel: Watkins why did you join the army?

Watkins: For the water-skiing and for the travel, sir. And not for the killing, sir. I asked them to put it on my form, sir - no killing.

[Flanker15]

I think the ruling is important for the well being of soldiers. It shows that if the command neglects to provide adaquate care to the people that are relient on that care to survive it can't use the excues "it's a war, people die".

This can't be used in situations of combat deaths since people killed in warfare are considered "lawful" deaths, so you won't have commanders reluctent to put people in danger. As said above RTL covers unlawful deaths.

[Cpl Steiner]

Sir Mike Jackson, who led the British contingent during the Iraq invasion, has severe reservations about the ruling. I have great respect for Sir Mike, who on many occasions has spoke out on issues such as poor soldier housing etc. In an ideal world, commanders would have all the equipment they want but in reality commanders have to make do with what they've got. This ruling makes such decisions illegal.

[ASL Veteran]

originally posted by Flanker

I think the ruling is important for the well being of soldiers. It shows that if the command neglects to provide adaquate care to the people that are relient on that care to survive it can't use the excues "it's a war, people die".

This can't be used in situations of combat deaths since people killed in warfare are considered "lawful" deaths, so you won't have commanders reluctent to put people in danger. As said above RTL covers unlawful deaths.

"Whoosh" - that's the sound of the significance of this ruling flying right over Flanker's head. I am not a lawyer, nor do I play one on TV, but I've been exposed to just enough business law to get a sense of where this ruling is taking the UK. This ruling has very little to do with Human Rights other than said law makes the civil suit possible. Let's have a look at that law as posted by George MC

"RIGHT TO LIFE

1.

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a)

in defence of any person from unlawful violence;

(

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

©

in action lawfully taken for the purpose of quelling a riot or insurrection."

Flanker says that this can't be used in the case of combat deaths because combat deaths are lawful deaths. Perhaps, but the ruling according to the article has already eliminated that as a definition of what can and cannot be covered by the human rights law because what Flanker says is exactly what the Ministry of Defence argued, but that was thrown out. In other words, a combat death does not, in and of itself, eliminate the possibility of the death being ruled as contrary to the human rights law 'right to life'.

from the article

The MoD argued that soldiers could not be protected by human rights laws if they were fighting “beyond the wire” of a base. Mr Justice Collins dismissed the MoD appeal and yesterday the Master of the Rolls, one of the most senior judges, agreed with his judgment and also threw out the ministry’s case.

Why do you suppose they ruled that way? For one thing there is nothing in that section of the law as quoted by George MC that excludes soldier's deaths for any reason, nor does it make a distinction between combat and non combat. None of the exceptions to the law make any mention of combat. However, I think a critical look at the ruling could be helpful here

Yesterday’s judgment concerned the case of Private Jason Smith, 32, of the Territorial Army, who died of heatstroke in Basra six years ago. At the inquest, in 2006, Mr Walker said that his death was caused “by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate” — temperatures of 50C. The coroner said that it amounted to a breach of his human rights.

For those who don't see it - it says that the death was caused by a serious failure to recognise and take appropriate steps to address the difficulty he had in adjusting to the climate. In other words, the court ruled that the death was caused by Negligence, and that this Negligence amounted to a breach of the soldier's human rights. The vehicle by which the lawsuit was brought was the Human Rights Law, but that's just the vehicle that is being used to justify a finding of negligence. Here is a link to the legal definition of negligence http://www.lectlaw.com/def2/n010.htm and here is the first paragraph of that definition

NEGLIGENCE - The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.

Negligence is a 'legal cause' of damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage, so it can reasonably be said that if not for the negligence, the loss, injury or damage would not have occurred.

So the test isn't really whether the death was 'lawful' or not under the Human Rights Law because the Human Rights law basically says that all deaths are 'unlawful' other than three specified instances (none of which mention the military). The test is one of negligence and whether the death was caused by "the doing of something which a reasonably prudent person would not do". Who decides what a reasonably prudent person would not do? A judge of course. So let's take another look at the examples I gave earlier. The Somme. I've read where British soldiers were ordered to attack German MG positions at the walk while wearing full packs. Could that be considered a 'negligent act'? Would a reasonably prudent person order those under his command to attack at the walk while wearing full packs? Maybe, maybe not. In any case whether it was prudent or not would be decided by a man who is sitting on the bench somewhere in London. If an attack under those circumstances was deemed to be negligent then the family members of every soldier killed at the Somme could have a monetary claim against the British Government.

How about Gallipoli? It's my understanding that there was a problem with supplying the troops with clean fresh water. There were also problems with having accurate maps of the area. Would a reasonable and prudent person get accurate maps before launching an invasion? Would a reasonable and prudent person make sure that the soldiers had access to a source of fresh clean water? Who decides what's reasonable and prudent? A judge decides.

The Sherman tank. Would a reasonable and prudent person put somebody in a tank that was known to catch fire when penetrated by enemy anti tank weaponry? Who decides? A judge decides.

It's my understanding that at the battle of Isandahlwanna the British soldiers ran out of ammunition and were overrun. I can't remember if the ammunition was not distributed effectively or if there just wasn't enough. Would a reasonable and prudent person have ensured that every soldier had enough ammunition to fight the battle? Who decides? A judge decides.

So if you are a commander in the field then every decision that you make could be subject to a legal test of reasonableness and prudence by a judge if your decision results in the death of someone under your command - under any circumstances. Private Parts was killed by friendly fire? Was your decision to assign him to that checkpoint reasonable and prudent? Private Parts drops that grenade he was about to throw. Was your decision to let him carry a grenade reasonable and prudent? This is why this ruling is a complete and total disaster for the UK armed forces. It will effectively paralyze the armed services and essentially neuter them. I can see the ambulance chasing lawyer ads now:

Those who have suffered the loss of a loved one who served in the military have many questions. We have the answers. Call James Sokolov attorney at law for more details. You may have a claim for compensation by the government! Operators are standing by.

I can understand that people may be upset that British troops were sent to Iraq and Afghanistan or that the current government may have provided inadequate resources to the military services, but the way to solve that problem is to vote those people out of office. This ruling just punishes the military and makes it less effective, if the military can even function at all under these circumstances.

Now hopefully a 'real' lawyer can tell everyone the real deal

[JonS]

BS

For those who don't see it - it says that the death was caused by a serious failure to recognise and take appropriate steps to address the difficulty he had in adjusting to the climate. In other words, the court ruled that the death was caused by Negligence, and that this Negligence amounted to a breach of the soldier's human rights. The vehicle by which the lawsuit was brought was the Human Rights Law, but that's just the vehicle that is being used to justify a finding of negligence. Here is a link to the legal definition of negligence http://www.lectlaw.com/def2/n010.htm and here is the first paragraph of that definition

Yes. The duty of care that all commanders have just became a legal obligation. Good.

So let's take another look at the examples I gave earlier. The Somme. I've read where British soldiers were ordered to attack German MG positions at the walk while wearing full packs. Could that be considered a 'negligent act'? Would a reasonably prudent person order those under his command to attack at the walk while wearing full packs? Maybe, maybe not. In any case whether it was prudent or not would be decided by a man who is sitting on the bench somewhere in London.

Not exactly. It's not whether ANY reasonable and prudent person would have ordered that attack in that way, it's whether the attack was ordered in a reasonable and prudent way in the context of the situation. So, the attack, as mounted, wasn't the greatest, but it was consistent with then current training, equipment, etc. Now, if one of the commanders had disregarded orders, doctrine, training, equipment, etc, and instead ordered his men to wear pink tights and flashing lights on their heads, while walking backwards on stilts, after cancelling all firesupportimng and advising the Germans of the exact H-hour, now that would be negiligent and a breach of the soldiers right to life.

How about Gallipoli? It's my understanding that there was a problem with supplying the troops with clean fresh water. There were also problems with having accurate maps of the area. Would a reasonable and prudent person get accurate maps before launching an invasion? Would a reasonable and prudent person make sure that the soldiers had access to a source of fresh clean water?

Yes. Hang the commanders high.

The Sherman tank. Would a reasonable and prudent person put somebody in a tank that was known to catch fire when penetrated by enemy anti tank weaponry?

Yes. The Shermans were state of the art at the time. Ordering tank crews into action in Normandy in Vickers Light Tanks, on the other hand ... not so much.

It's my understanding that at the battle of Isandahlwanna the British soldiers ran out of ammunition and were overrun.

Yes. Hang the commanders high. That was a reasonably easily foreseeable consequence of their logistics arrangements. That nothing was done to correct it until after Isandahlwanna was negligent.

Private Parts was killed by friendly fire? Was your decision to assign him to that checkpoint reasonable and prudent?

Yes, of course it was. The friendly firer, on the other hand ... that depends.

Private Parts drops that grenade he was about to throw. Was your decision to let him carry a grenade reasonable and prudent?

Standard equipment and tools of the trade. Commanders can reasonably expect that their soldiers know how to use their weapons.

Sending soldiers to Iraq fully equipped with current operational kit? Win.

Sending soldiers to Iraq with training plates in their body armour? Fail.

Sending soldiers to Iraq with second rate kit while good kit sits in stores? Epic fail.

It will effectively paralyze the armed services and essentially neuter them.

Only if British commanders are a bunch of fricking morons. Which I happen to think they aren't.

[ASL Veteran]

Not exactly. It's not whether ANY reasonable and prudent person would have ordered that attack in that way, it's whether the attack was ordered in a reasonable and prudent way in the context of the situation.

and the judge agrees with you. That's the point I was making. How does the commander know if their action will be considered reasonable and prudent? He or she doesn't - that's why they litigate stuff in a court of law. It's not whether you think it's reasonable or prudent - it's whether a judge thinks it's reasonable and prudent. Not every judge is going to view the situation the way you would - or even in a way that a military commander would. Every person who feels that a soldier's death was the result of negligent action can now sue the government. Who's to say that every soldier's family wouldn't do just that regardless of circumstance. Every single time. No matter how ridiculous their claim may seem. Can you imagine how many lawsuits that would be? Does the cost to the taxpayer to fight all those lawsuits matter to you? You don't think that situation would have an effect on the decision making of British commanders if everytime someone under their command was killed that the commander would have a court date along with that death? Win or lose the litigation that commander would still have to spend time in court, thus taking that commander out of the field (along with witnesses and evidence etc).

I can't imagine operating effectively under those circumstances. Maybe the people of the UK are happy with that, I don't know. As an American I don't have a horse in the fight on this, so I'll leave this for our friends in the UK to haggle over.

[JonS]

I'm baffled as to why you think commanders at all levels should not have a legal responsibility for the care of their soldiers, but so be it.

The Fire Service and other similar organisations - who deliberately send employees into dangerous situations as an ordinary part of their daily job - have already had to deal with this type of legislation and there hasn't, as far as I'm aware, been a notable outbreak of unfought fires. They carefully thought through the way they do things, and changed some operational procedures to maximise safety concomittant with acheiving the task, but they still routinely send people into dangerous situations, because that's the fundamental nature of their job.

Employers should look after their employees. It's as simple as that. If they won't do it off their own bat, then fine: legislate it.

[costard]

It's probably worth remembering that you're talking about an organisation that is made up of armed men, trained to kill: i.e. there is the real opportunity for matters of incompetence in leadership to be decided in the field. Most military leaders are aware of this possibility - the prudent ones never forget it.

[Clavicula_Nox]

I can see both sides.

I think part of ASL's argument is that we (The US at least) already have politicians looking over our shoulders, now we have lawyers too. I don't think it would automatically lead to something bad, but I could see how it could.

[JonS]

I can see both sides.

Ditto.

I don't think it would automatically lead to something bad, but I could see how it could.

Ditto. Change 'bad' to 'good' in that sentence, and I agree with that too.

[Battlefront.com]

Agreed with JonS' agreement of other people's agreement

The truth is that this is already the case in the US military. There were some instances of training related deaths that I can think of where uniformed personnel (officers in particular) were held accountable because they exercised incredibly poor judgement. One of the most infamous involved the deaths of 3 officers and 1 NCO during Ranger training:

http://www.arlingtoncemetery.net/mpalmer.htm

Without getting into the specifics of this particular case (because it isn't relevant), there should be a clear distinction between something which comes with a risk of death/injury and the execution of it. In the case of intensive "elite" training if the course isn't pushing trainees to the brink of death then it isn't going to create "elite" soldiers. Therefore, if someone goes into such training there is an inherent risk of that line being crossed. But it's the responsibility of the trainers to recognize when the line is getting crossed and to take steps to protect the trainee. This is standard case law already, both in civilian and military courts in the US. There's definitely a difference between someone dying despite the best efforts to prevent it and someone dying because there wasn't a best effort. It can get pretty gray when something goes wrong, that's for sure, but that's just the way it works.

Of course, just because the laws are in place doesn't mean that the correct people are held accountable. Sometimes it is a major fustercluck of epic proportions, as was the case in the downing of two Black Hawks over Iraq in 1994:

http://en.wikipedia.org/wiki/1994_Black_Hawk_shootdown_incident

In this case there was so much negligence at work that they would have had to prosecute dozens of officers who held various positions over the course of many years. Probably a pretty good room sized amount of Pentagon officials and perhaps even some politicians as well, since some of the issues were linked to budgetary issues.

Anyway... I don't really see anything different with the reality that if a commander in the field REALLY f's up, and someone dies who probably shouldn't have, that there's going to be a lot of commotion after the fact.

Steve

[Clavicula_Nox]

The truth is that this is already the case in the US military. There were some instances of training related deaths that I can think of where uniformed personnel (officers in particular) were held accountable because they exercised incredibly poor judgement. One of the most infamous involved the deaths of 3 officers and 1 NCO during Ranger training:

Yeah, that incident completely changed how they conduct Florida phase. It used to be that the students were just out there, and any need for a medevac was a long wait. Now they have little medic stations and improved infrastructure setup in the Ranger School's areas. There is a lot more attention paid to the temperature of water, as the RI's disregard for regulations is what caused the deaths (and large number of cold weather casualties).

It should be noted, though, that those Rangers who weren't medevaced continued their mission.

Now, in this case, the RIs and possibly RTB Command Group are completely responsible. Regulations state that water cannot be entered in training if it is below a certain temperature; 50 degrees Fahrenheit, I believe. The water temperature hovered around 50 for the entire day and several days previously, then actually dropped below it when the decision was made to have them cross with a rope bridge. For the RIs, it isn't a big deal; they wear wet suits under their uniforms; but for the Ranger who has on nothing but a plain uniform, it's deadly. Anyways, a tragic story, but I think it fits in with what we're talking about. Was anyone held accountable? I don't know.

[ASL Veteran]

Originally posted by Battlefront

The truth is that this is already the case in the US military. There were some instances of training related deaths that I can think of where uniformed personnel (officers in particular) were held accountable because they exercised incredibly poor judgement. One of the most infamous involved the deaths of 3 officers and 1 NCO during Ranger training:

Steve, I'm afraid you are not correct. Note, Steve, that in your linked article about the Ranger Training that the Army Criminal division and Safety inspector launched an investigation. The other link to the Blackhawk incident likewise involves a military investigation. Neither incident makes any mention of a civil suit by the families against the Army that I could see from the articles. English and US common law apparently grants absolute civil lawsuit immunity for the government unless a law is enacted that specifically allows it. In the case of the US that is the Federal Tort and Claims Act of 1946 an explanation of it linked to here http://www.finchmccranie.com/refresher.htm and it's little brother the Military Claims Act which basically extends the Tort act to overseas. Whether a similar law exists for the UK I don't know. If the UK does have a similar law then the lawsuit through the Human Rights Act is a blatant end run around current British tort law. If no law exists then a lawsuit through the Human Rights Law may be the only recourse for the family of the soldier named in the case because of absolute government immunity (I'm not sure why that law would overrule the absolute immunity, but I'm not a lawyer). Before I get into a specific of the US tort law that's directly applicable to this discussion we should probably be clear that what was referenced in the original article in this thread was a civil suit brought through the Human Rights Law that they apparently have in the UK. As usual this is a discussion about a policy or legal spectrum. The spectrum spans from being allowed to sue the government over anything at any time on one end to total governmental immunity on the other end. Where you stand on that spectrum will influence your view on the ruling. The main thing to keep in mind is that the Human Rights Law that was used as the vehicle to bring a lawsuit against the Ministry of Defense has absolutely no limits or structure as to what is open for civil action and what isn't. In other words, the ruling in the UK could mean that anything is fair game for a civil suit at any time under any circumstances against the UK government if a death is involved. It stands on the extreme end of the 'sue anything for any reason' end of the spectrum. In the US, the Federal Tort and Claims Act of 1946 specifies the following limitations (because the government is by default immune from civil suits, the tort act allows suits, the waiver restores the immunity to certain items in the form of limitations)

from the link above

Indeed, in 28 U.S.C. § 2680, Congress specified that its limited waiver of immunity would not apply to the following claims:

(snip)

(j) any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war;

(snip)

It should be noted that as a general proposition, claims for injury or death of servicemen are not within the scope of the Act if such injury or death was sustained "as an incident to service." See generally, Feres, Executrix, v. United States , 340 U.S. 135 (1950). Personal injury or death claims for active duty servicemen, while excluded for coverage under the FTCA, does not mean that there are no benefits available to compensate for disability or death of service connected and non-service connected injuries. It is important to recognize, however, that service persons not on active duty and veterans who are victims of medical negligence may have valid FTCA claims notwithstanding the proscriptions of the Feres decision. Suffice it to say that as a general proposition claims will not lie for personal injury or death claims for active duty servicemen and women and their families if the injury or death claim arises out of or is "incident to their service."

Not within the scope of the act meaning total immunity for the government in the case of that last paragraph. To reinforce the total immunity from civil liability here is a rather tragic story of what could be termed medical malpractice. http://richmond.injuryboard.com/wrongful-death/repeal-the-feres-doctrine.aspx?googleid=263218

The main thing that I want to emphasize here is that the US has a legal structure in place for civil suits filed against the US Government and those lawsuits are filed within that legal structure. The danger with the ruling in the UK is that there is no legal structure in the Human Rights Law and if someone dies for any reason at any time you can sue the government via the Human Rights Act. Marinate in that for a while before agreeing with Jon S again and realize that you are supporting an 'anything goes' view of civil suits against the government through a law that was not structured as a tort and claims law and all the chaos that could potentially spiral from that.

[ASL Veteran]

I'm baffled as to why you think commanders at all levels should not have a legal responsibility for the care of their soldiers, but so be it.

I'm baffled that you feel that the only effective means of enforcing accountability for soldier's care is to make the military liable from a civil standpoint through the awarding of monetary damages to soldier's families through civilian courts. Steve's post gives two good examples of how accountability can be enforced without awarding money to the victim's families even though his premise in posting those examples was a mistaken one. The sense I get is that you believe commanders can only properly be held accountable for the welfare of their troops when the government pays monetary compensation to that soldier's survivors through the act of civil litigation. Anything short of that is insufficient.

As I'm sure you are aware, the danger level that is present for a soldier while assaulting Monte Cassino in 1944 is not equivalent to a fireman who is fighting a fire that has broken out in your flat. Your reference / comparison is completely meaningless. What's next? Should soldier's be able to join unions just like any other employee of a 'dangerous' occupation? Private Parts, member of soldier's union local 34.

[JonS]

As I'm sure you are aware, the danger level that is present for a soldier while assaulting Monte Cassino in 1944 is not equivalent to a fireman who is fighting a fire that has broken out in your flat. Your reference / comparison is completely meaningless.

I don't live in a flat. Nevertheless the comparison isn't meaningless, else I wouldn't have made it.

I heard exactly the same stupid arguments about firemen not being able to fight fires anymore because of HR legislation applying to them. Guess what? The dopey twats making that argument were wrong then, and they're wrong now.

The sense I get is that you believe commanders can only properly be held accountable for the welfare of their troops when the government pays monetary compensation to that soldier's survivors through the act of civil litigation. Anything short of that is insufficient.

Well, your spidey sense is utterly failing you then. It's obviously not the only way, and I see it as a last resort, rather than a port of first call. You, on the other hand, have yet to come up with a good and sufficient reason why commanders should be exempt from a legal responsibility relating to their duty of care.

[ASL Veteran]

Well, your spidey sense is utterly failing you then. It's obviously not the only way, and I see it as a last resort, rather than a port of first call. You, on the other hand, have yet to come up with a good and sufficient reason why commanders should be exempt from a legal responsibility relating to their duty of care.

You may want to adjust your thinking on the topic then. If the government investigates for negligence and finds that a negligent act was committed then whichever civil attorney took up the case would have a slam dunk victory just waiting for him since the government already made a finding for him. All the attorney would have to do would be to file the paperwork and watch the cash roll in. Thus, there is very little motivation for the Ministry of Defense to investigate questionable acts on their own. Far better to let the courts make the determination and fight every action that is brought against you by the various aggrieved parties. The two methods can't coexist together. You can only have one method or the other. I hope your Spider Sense can figure that one out.

I never said commanders don't have a responsibility for the men under their care. I just don't think they should be held personally liable from a civil standpoint or subjected to paying monetary damages to an aggrieved party like you believe. I am also not attempting to change your mind on anything. People can decide on their own if this ruling makes sense or not. You have obviously made up your mind and I doubt that our little back and forth on the message board would change it.