Conflict and Wars in UK Law

In our judgment the nexus between the generalised armed conflict and the indiscriminate violence posing a real risk to life and person is met when the intensity of the conflict involves means of combat (whether permissible under the laws of war or not) that seriously endanger non-combatants as well as result in such a general breakdown of law and order as to permit anarchy and criminality occasioning the serious harm referred to in the Directive.

But, although for acts or omissions amounting to civil wrongs an officer of the Crown can derive no protection from the fact that he was acting in the King's service or even under express command, it is recognised that, where what is alleged against him is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care … It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations.

The question is therefore whether the principles apply to soldiers on active service in Iraq. They are under the control of and subject to army discipline. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can.

Nor, however, has the judgment introduced an additional test of exceptionality. By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety.

It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.

In any event, the Al-Shabab withdrawal in August 2011 in our view constitutes evidence which means that it can no longer be said that any person in Mogadishu, regardless of his or her circumstances, is at Article 3 risk from the armed conflict there. As we have already explained, we do not consider that the evidence of the withdrawal means, as at the present date, that it can safely be said that the generality of the population no longer faces an Article 15(c) risk.

The armed conflict taking place in Mogadishu currently amounts to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu is no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu;