The Right to Life on the Battlefield

Date01 October 2010
AuthorGary Slapper
Publication Date01 October 2010
The Right to Life on the Battlef‌ield
Gary Slapper*
Professor of Law, and Director of the Centre for Law, at the Open University,
door tenant at 36 Bedford Row
Speaking at a Human Rights Day event on 10 December 1961, the
English lawyer Peter Benenson, the founder of Amnesty International,
said that it is ‘better to light a candle than curse the darkness’. What he
ignited has since conf‌lagrated across the world. Amnesty now has over
2 million members and over 100 off‌ices worldwide.
The development of human rights is a long and complex story whose
longest roots can be traced to a variety of sources including, arguably,
Hammurabi’s Code in Babylon around 1780 BC. More modern develop-
ments can be found in the Magna Carta of 1215, the Bill of Rights in
1689, and Thomas Paine’s Rights of Man in 1791. The story of the
development of human rights is, like science, music and literature, a
story of continuing organic development: it cannot be terminated.
Whatever its detractors think, the human rights project will not cease
abruptly if a particular piece of legislation or a code is repealed.
The story is not, though, always a story of advancement. A judicial
decision can arrest the development of law. In holding that the Human
Rights Act 1998 does not apply to armed forces on foreign soil, the
Supreme Court has recently recoiled from an important opportunity to
underline the true signif‌icance of human rights.1
To accord to UK soldiers on foreign soil human rights would not entail
anything preposterous such as keeping them out of harm’s way or
having health and safety inspectors on the battlef‌ield. Soldiers, after all,
consent occupationally to be exposed to mortal danger. According sol-
diers human rights would, though, prevent them being exposed to
wanton and unnecessary lethal danger by, for example, unpardonably
reckless decisions of senior off‌icers.
The Supreme Court case arose in this way. Private Jason Smith, a
member of the Territorial Army since 1992, was mobilised for service in
Iraq in June 2003. After acclimatising for a short period in Kuwait he
was sent to a base in Iraq, from where he was billeted in an old athletics
stadium. By August, the daytime temperature in the shade exceeded 50
degrees centigrade. On 9 August he reported sick, complaining of the
heat. Over the following few days he was employed in various duties off
the base. On the evening of 13 August he collapsed at the stadium and
died of heat stroke.
* The views expressed in this article are those of the author and do not necessarily
ref‌lect the views of The Open University, 36 Bedford Row, or The Journal of Criminal
1R (on the application of Smith) v Secretary of State for Defence [2010] UKSC 29, [2010] 3
WLR 223, from which I take the facts directly.
383The Journal of Criminal Law (2010) 74 JCL 383–386

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