Armed Forces in UK Law

Warfare perhaps never did admit of such a distinction, but now it would be quite absurd.

Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces.

I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly.

That article (see para 59 above) empowers the Council to take such action by land forces as might be necessary to restore international peace and security. The 13 th preamble to the resolution referred explicitly to the report about contemporary conditions in Iraq which I have summarised in para 21 above. This letter included, among the broad range of tasks the MNF stood ready to undertake, "internment where this is necessary for imperative reasons of security in Iraq".

However, where an individual was ‘wanted’ by the Taliban or Hizb-i-Islami, then the evidence was that the situation in Afghanistan remains sufficiently lawless that if he were found, there would be nothing to prevent them dealing with him as they thought fit. A person who was wanted in his home area for a specific reason would be able to show a real risk of persecution (or treatment entitling him to humanitarian protection, as appropriate) in his home area.

Exit permits are only issued on proof of completion of national service or payment of a bond as security for return to Eritrea to perform national service. These include people evading and refusing conscription on account of their opinions or beliefs and anyone suspected of disloyalty to the government — even the act of applying for asylum from abroad would be regarded as evidence of disloyalty and reason to detain and torture a person on return to Eritrea after rejection of asylum.

Against the factual background described above a number of questions must be asked in the present case. Did the UN exercise effective control over the conduct of UK forces? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.