Does the law on civil combat immunity strike a justifiable balance between the interests of the state and those of service personnel in the armed forces?

Abstract

Over the last eight years, the UK has been engaged in its largest defence commitments since World War II. Military personnel in Iraq and Afghanistan have been involved in a broad range of activities ranging from direct combat with insurgents to quasi-policing duties relating to the transfer of power to local authorities.
Inevitably, as in all professions, service personnel will make mistakes and the Ministry of Defence (MOD), as their employer, is, in principle, vicariously liable. The tortious acts or omissions of service personnel may lead to third parties, including
fellow members of the armed forces, sustaining physical injury. This thesis will examine the extent to which the civil law holds the MOD, and thus the Crown, responsible for the acts of its military agents deployed in conflicts abroad. There has
been relatively little legal interest in the area compared to the application of criminal law to the armed forces. A core issue for consideration will be whether the state should bear the cost of liability in all instances when a tort has been committed by
service personnel. Or is it legitimate, for strictly doctrinal or broader policy based reasons, for the Crown to exercise prerogative and seek immunity from the consequences of errors of judgment made by members of the armed forces under
combat or quasi combat conditions? There may be times when the state would wish to ringfence the economic costs of guarding its politically determined definition of 'national security', from the customary rights of the individual to seek compensation for injury.
This thesis will trace the development of the law, examining the issues which the judiciary, in particular, have faced. It will critically evaluate whether the methods of adjudication employed by the courts have produced a clear and comprehensible
doctrine. In order to evaluate whether the law has struck an appropriate balance between the interests of the state and those of service personnel injured by the negligent act of another, this thesis will go on to examine the consequences of any
immunity, where so found. What rights to compensation does a soldier, injured by a colleague, have? Also, could an exemption from the usual rules of tort law disincentivise the MOD from risk management during conflict situations leading to an increased exposure to risk for service personnel? In particular, the thesis will examine whether any military exemption from tortious liability would be compatible with a soldier's right to life under the Human Rights Act 1998.