Commanding officers in Afghanistan have been offered indemnity from prosecution under human-rights laws if they make a decision that leads to the death of a soldier.

The move is to address widespread concern that officers might face private prosecution if a military operation goes wrong.

Last month three Appeal Court judges ruled that troops serving overseas were covered by the Human Rights Act even in the battlefield. The Ministry of Defence has written to all commanding officers in Afghanistan informing them that, in the event of a future private prosecution arising from any action or decision they may have taken, they would not be expected or required to appear in court.

“They have all been told that the MoD would take full responsibility in any future legal challenge, so there is no question of an individual member of the Armed Forces being named and taken to court,” a defence official said.

Lawyers from the MoD are still trying to decide whether to appeal to the House of Lords against the ruling. Defence sources said it would be necessary to decide before Parliament went into summer recess on July 22.

The Appeal Court judges included Sir Anthony Clarke, the Master of the Rolls. The MoD’s main argument that British troops abroad were covered by the Human Rights Act only when they were within a UK base or establishment was rejected by the Appeal Court and by the High Court at an earlier hearing.

The Appeal Court ruling stated: “For the purpose of determining whether there is a sufficient link with the UK to qualify for protection, it seems to us to make no sense to hold that there is a distinction between a person inside and outside premises controlled by the UK, whether he or she is a consul or a soldier.

“The distinction raises questions such as whether the soldier or consul is protected in a vehicle or an ambulance. If in a hospital, why not in an ambulance? If in a British base or consulate, why not in a British Army vehicle? If in a vehicle, why not when the soldier gets out of the vehicle?”

The legal arguments related to the death of Private Jason Smith, a Territorial Army soldier, who died in Iraq in August 2003. He suffered from heatstroke. Lawyers acting for Catherine Smith, his mother, argued successfully that British soldiers serving in Iraq were protected by the European Convention on Human Rights which included a clause guaranteeing a right to life.

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