The important decision of the UK Supreme Court in Smith and ors v Ministry of Defence [2013] UKSC 41 (19 June 2013) http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf holds by a slim 4-3 majority that both common law negligence claims, and a claim under art 2 of the European Convention on Human Rights, against the UK Ministry of Defence, in relation to the deaths and serious injuries of UK soldiers in Iraq can proceed to trial. The majority (Lord Hope, with whom Lord Walker, Lady Hale and Lord Kerr agree) acknowledge the "combat immunity" at common law spelled out in the High Court of Australia decision in Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, but hold that the immunity does not apply to "pre-battle" decisions such as the armour strength of vehicles or whether appropriate electronic means should be installed in tanks to avoid "friendly fire" incidents as happened in one of these cases- see eg [92]. The dissenters (Lords Mance, Wilson and Carnwath) disagree, arguing that it is impossible to draw these lines clearly and that, by analogy with the cases on police immunity when acting to prevent crime, allowing such liability will generate litigation and presumably lead to bad military decision making. I don't think it is just because I am Australian that I think the Shaw Savill case is probably a better rule for the reasons given by the dissenters. 

There is also much discussion about the application of Article 2 to combat zones which I will leave to other colleagues better placed to comment on ECHR jurisprudence.

Regards

Neil