Iraqi Civilians v Ministry of Defence

Over 600 cases are currently pending in the High Court in which Iraqi civilians are claiming damages from the Ministry of Defence (“MOD”) for their allegedly unlawful detention and alleged ill treatment by British armed forces on various dates during the period when British forces were present in Iraq. The claims are made on two legal bases. The first is the law of tort. It is common ground that, pursuant to Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the applicable law which is to be used for determining the issues arising in these claims is the law of Iraq. The second legal basis is the Human Rights Act 1998. The claimants allege violations of articles 3 and 5 of the European Convention on Human Rights (the “Convention”) incorporated in Schedule 1 to the 1998 Act.

By an order dated 5 March 2014 (as varied on 24 June 2014), the court gave directions for a trial of preliminary issues in this litigation. Most of the issues were aimed at identifying the applicable period of limitation and whether the proceedings were begun before that period expired. These limitation issues affect almost all the claims. The limitation issues raise questions of Iraqi law which are the subject of expert evidence. Regrettably, the claimants’ expert witness, Mr Saleh Majid, has been ill and has also been affected by his wife’s recent serious ill health. About two weeks before the hearing, it became clear that Mr Majid would not be able to give evidence and that, as there was insufficient time before the hearing for another expert to be instructed in his place, the trial of the limitation issues would have to be adjourned. I granted the claimants’ application for an adjournment on 15 October 2014 and have since given directions for a new trial which will also encompass additional issues.

This has left only two preliminary issues which can be decided now. These issues, which are raised in relation to a number of specified test cases, concern:

These issues have been succinctly argued by counsel.

The first issue is:

“Where detention occurred following the entry into force of UNSCR 1483 on 22 May 2003 and/or UNSCR 1511 on 16 October 2003:

a)

Was the defendant under a duty pursuant to those resolutions to detain individuals where necessary for imperative reasons of security?

b)

If so, did that duty override the defendant’s obligations under Article 5, ECHR?”

The two UN Security Council Resolutions in question were promulgated during the period when the UK was an occupying power in Iraq. The war fighting phase of the conflict began on 20 March 2003, when a coalition of armed forces led by the United States and including a large force from the UK invaded Iraq. Major combat operations were formally declared complete on 1 May 2003. It is common ground that from that date until 28 June 2004 the US and the UK were occupying powers within the meaning of article 42 of the Hague Regulations 1907.

On 8 May 2003 the Permanent Representatives of the UK and the US at the United Nations addressed a joint letter to the President of the Security Council. The letter explained that the US, the UK and their coalition partners had created the Coalition Provisional Authority (“CPA”) in order to “exercise powers of government temporarily and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction.” On 16 May 2003 the CPA issued CPA Regulation No 1 whereby the CPA assumed:

“all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council Resolutions, including Resolution 1483 (2003), and the laws and usages of war.”

UNSCR 1483 was adopted by the Security Council on 22 May 2003. Amongst other recitals, the resolution noted the letter of 8 May 2003 from the Permanent Representatives of the US and the UK “recognising the specific authorities, responsibilities and obligations under applicable international law of the states as occupying powers under unified command (the ‘Authority’).” At paragraph 4, the resolution called upon the Authority:

“consistent with the Charter of the United Nations and other relevant international law to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;”

At paragraph 5, the resolution further called upon “all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.”

UNSCR 1511 was adopted by the Security Council on 16 October 2003. It reaffirmed previous resolutions on Iraq, including UNSCR 1483, and (in paragraph 1) reaffirmed the sovereignty and territorial integrity of Iraq, underscoring in that context:

“the temporary nature of the exercise by the [CPA] of the specific responsibilities, authorities and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the [CPA] …”

The resolution set out steps to be taken to achieve this goal and (at paragraph 13) authorised a multi national force (“MNF”) under unified command “to take all necessary measures to contribute to the maintenance of security and stability in Iraq …”

Thereafter steps were taken to prepare for the transfer of sovereignty from the CPA to an interim Iraqi government. In anticipation of this transfer of authority, the Security Council on 8 June 2004 adopted Resolution 1546.

UNSCR 1546 was preceded by two letters dated 5 June 2004 written to the President of the Security Council by, respectively, the Prime Minister of the interim government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). The letter from Dr Allawi sought a new resolution of the Security Council to authorise the MNF to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter from [Mr Powell]”. The letter from Mr Powell confirmed that the MNF was prepared to continue to contribute to the maintenance of security in Iraq and stated:

“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. …” [emphasis added]

UNSCR 1546, in paragraph 9, reaffirmed the authorisation for the MNF established under UNSCR 1511 and, in paragraph 10, decided that the MNF “shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution.” The letters annexed to the resolution were the two letters written to the President of the Security Council, referred to above.

In Al-Jedda v Secretary of State for Defence [2008] 1 AC 332 the claimant, who had been detained by UK forces at detention facilities in Iraq since October 2004, sought judicial review of his detention on the ground that it was contrary to article 5 of the Convention. His claim failed on the basis that his rights under article 5 were overridden by an obligation on the UK to detain him pursuant to UNSCR 1546 (and later resolutions which extended its temporal effect).

The defendant’s argument for that conclusion was based on article 103 of the UN Charter, which states:

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

In summary, the House of Lords decided as follows:

The purpose of the preliminary issue in this litigation is, essentially, to determine whether the reasoning of the House of Lords in relation to UNSCR 1546 also applies to the earlier resolutions, UNSCR 1486 and UNSCR 1511.

After losing his case in the English courts, Mr Al-Jedda sought just satisfaction in Strasbourg. The European Court of Human Rights held that his internment had violated article 5(1) of the Convention and rejected the argument which had succeeded in the English courts that article 5 was overridden by UNSCR 1546: see Al-Jedda v United Kingdom (2011) 35 EHRR 23. The European Court approached the case by considering the purposes for which the United Nations was created. As well as maintaining international peace and security, these purposes include under article 1 of the UN Charter “promoting and encouraging respect for human rights and fundamental freedoms”. In addition, article 24(2) of the Charter requires the Security Council, in discharging its responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against this background, the Court held (at para 102) that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights.

Applying this presumption, the European Court concluded (at para 109) that neither UNSCR 1546 nor any other resolution imposed an obligation on the UK to detain an individual considered to constitute a risk to the security of Iraq indefinitely without charge. In those circumstances the Court found no conflict between the UK’s obligations under the UN Charter and its obligations under article 5(1) of the Convention.

A further, recent judgment of the European Court of Human Rights delivered on 16 September 2014 in the case of Hassan v United Kingdom (29750/09) has important implications for the preliminary issue (and for this litigation more generally). The case concerned an Iraqi national (Tarek Hassan) who, on the facts found by the Court, was arrested by UK forces on 23 April 2003 and detained until 2 May 2003, when he was released. The Court found that during the period of his detention Mr Hassan was within the jurisdiction of the UK for the purpose of article 1 of the Convention. The Court rejected an argument that in a situation of international armed conflict article 5 of the Convention ceased to apply, but held (at paras 102-103) that, notwithstanding the absence of any formal derogation, article 5 was to be interpreted and applied in the light of the applicable rules of international humanitarian law (“IHL”).

Adopting this approach, the European Court held (at para 104) that, in a situation of international armed conflict, article 5 could be interpreted as permitting the taking of prisoners of war and the detention of civilians who pose a threat to security in accordance with the Third and Fourth Geneva Conventions, although such detention does not fall within any of the cases set out in sub-paragraphs (a)-(f) of article 5(1). With regard to procedural safeguards, the Court considered that article 5(2) and (4) “must also be interpreted in a manner which takes into account the context and applicable rules of [IHL]” (para 106). Noting that articles 43 and 78 of the Fourth Geneva Convention provide that internment “shall be subject to periodical review, if possible every six months, by a competent body”, the Court said (at para 106):

“Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent ‘court’ in the sense generally required by Article 5(4) …, nonetheless, if the Contracting State is to comply with its obligations under Article 5(4) in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay.”

In answer to the questions posed in the preliminary issue, Mr Sweeting QC on behalf of the defendant submitted that the effect of UNSCR 1546, as determined by the House of Lords in the Al-Jedda case, was to vest in the MNF after the establishment of the Iraqi interim government the same powers and obligations with regard to maintaining security which the CPA had possessed during the occupation phase both under IHL and pursuant to UNSCRs 1483 and 1511. Those powers and obligations included, again on the authority of the House of Lords in the Al-Jedda case, a duty to intern individuals where necessary for imperative reasons of security which overrode the UK’s obligations under article 5 of the Convention by reason of article 103 of the UN Charter. Mr Sweeting submitted that this analysis must apply equally to UNSCRs 1483 and 1511, unless and until the Supreme Court departs from the decision of the House of Lords in the Al-Jedda case.

On behalf of the claimants, Mr Hermer QC submitted that the decision of the House of Lords in the Al-Jedda case does not assist the defendant as it was concerned with a different Security Council Resolution, which had materially different wording. Mr Hermer submitted that there is nothing in the text of UNSCR 1483 or 1511 which imposed a duty on the defendant to intern any individuals, still less was there anything in either resolution which required detention that violated article 5.

Given the nature of the defendant’s argument based on the decision of the House of Lords in the Al-Jedda case which the preliminary issue is intended to test, the term “duty” in the phrasing of the preliminary issue must be understood in the same sense as the term “obligation” in article 103 of the UN Charter. I have in mind, therefore, the conclusion of the House of Lords in the Al-Jedda case that the term “obligation” in article 103 is not to be given a narrow meaning and that article 103 applies where conduct is authorised by the Security Council as where it is required.

In this sense, I think it clear that UNSCR 1483 did impose a duty on the UK in its role as an occupying power in Iraq to detain individuals where to do so was considered necessary for imperative reasons of security.

Article 43 of the Hague Regulations 1907 provides, with reference to occupying powers:

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

This provision is supplemented by provisions of the Fourth Geneva Convention. Articles 41, 42 and 78 of that Convention provide:

“41.

Should the power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of articles 42 and 43 …

42.

The internment or placing in assigned residence of protected persons may be ordered only if the security of the detaining power makes it absolutely necessary …

78.

If the occupying power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”

In the Al-Jedda case (at para 32) Lord Bingham drew from these provisions the conclusion that “if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such person”.

It seems to me that, by calling in paragraph 5 of UNSCR 1483 upon “all concerned to comply fully with their obligations under international law including in particular the Geneva Convention of 1949 and the Hague Regulations of 1907”, the Security Council imposed an additional layer of obligation on the obligations which were already binding on the UK under international law as an occupying power. Those obligations were now also the subject of a decision of the Security Council which the UK, as a member of the United Nations, was obliged by article 25 of the UN Charter to accept and carry out.

I see nothing in paragraph 5, however, which requires the UK to discharge its obligations under the Geneva Conventions and the Hague Regulations in a way which is inconsistent with the UK’s obligations under international law to abide by the European Convention on Human Rights. Although paragraph 5 mentions, in particular, the Geneva Conventions and Hague Regulations, it does not purport to give obligations under those instruments primacy over any other international law obligations. I would therefore construe paragraph 5 as requiring the UK, so far as possible, to comply with its obligations under both IHL and the Convention. There is nothing in that paragraph, or anywhere else in UNSCR 1483, which can be interpreted as authorising or requiring the UK to take steps sanctioned by the Geneva Conventions and Hague Regulations which violate obligations under the Convention (or vice-versa). Nor is there anything in the decision of the House of Lords in the Al-Jedda case which suggests, let alone dictates, any such result.

Furthermore, the difficulty which previously existed of reconciling the rules of IHL applicable during an international armed conflict with article 5 of the Convention has now been dissolved by the decision of the European Court of Human Rights in Hassan v UK. As I have mentioned, the Court has held that article 5 is not to be interpreted as preventing the detention of individuals in accordance with powers conferred by IHL on the ground that such detention is considered necessary for imperative reasons of security. There is no inconsistency between detaining an individual who is considered to be a threat to security and applying the procedural safeguards in relation to such detention which, according to the European Court in Hassan, article 5 still potentially requires even in a situation of international armed conflict. No inconsistency, therefore, of the kind which the House of Lords perceived in the Al-Jedda case in relation to the post-occupation period between the UK’s obligations to secure Convention rights and an obligation to intern for imperative reasons of security can arise. In short, there is no potential conflict of obligations which article 103 of the UN Charter need be invoked to resolve.

A similar analysis applies to the position under UNSCR 1511. Paragraph 13 of that resolution authorised the UK forces which became part of the MNF “to take all necessary measures to the maintenance of security and stability in Iraq”. Given the background that the UK remained an occupying power, the measures available to be taken in accordance with IHL included internment where necessary for imperative reasons of security. In these circumstances I consider that UNSCR 1511 also imposed a duty (in the relevant sense) to detain individuals where necessary for such reasons.

There is, however, nothing in the language of UNSCR 1511 which requires it to be interpreted as authorising the taking of such a measure insofar as doing so would violate the UK’s obligation to secure rights under the Convention. For the reasons that I gave in Serdar Mohammed v MOD [2014] EWHC 1369 (QB) at paras 208-217, I do not consider that I am prevented from reaching this conclusion by the decision of the House of Lords in the Al-Jedda case on the meaning of a later, differently worded resolution; nor that I am prevented in doing so from taking into account the presumption applied by the European Court in Al-Jedda v United Kingdom (2011) 53 EHRR 23 that, unless it uses clear and unambiguous language to the contrary, the Security Council does not intend states to take measures which conflict with their obligations under international human rights law. In any event, in the light of the judgment of the European Court in Hassan, there is no potential inconsistency between detaining an individual who is considered to be a threat to security and complying with article 5.

Accordingly, my answers to the two questions raised by the first preliminary issue are as follows:

The second preliminary issue which can be decided now is:

“Whether the availability of aggravated damages is a matter of procedure governed by English law or a substantive matter governed by Iraqi law.”

A further limb of this issue which asks whether, if a substantive matter, aggravated damages are available under Iraqi law cannot be decided without expert evidence.

The relevant distinction between matters of procedure and substance is that drawn by Part III of the Private International Law (Miscellaneous) Provisions Act 1995 which, as mentioned earlier, establishes the applicable law to be used “for determining the issues arising in a claim” in tort: see section 9(4). (Footnote: ¹) Section 10 of the Act abolished the common law rules for choosing the applicable law, replacing them with statutory rules set out in sections 11 and 12. The 1995 Act does not, however, affect any other common law rules: see section 14(2). In particular, section 14(3)(b) makes it clear that nothing in Part III “authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum”.

Two decisions of the highest authority establish how the distinction between questions of procedure, which are governed by the law of the forum, and questions of substance concerning “the issues arising in a claim”, which are governed by the applicable law, is to be applied. In Harding v Wealands [2007] 2 AC 1, 13, Lord Hoffmann, with whose speech the rest of the House of Lords agreed, explained the test (at para 24) as follows:

“In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or which require that the damage should have been reasonably foreseeable, are all rules which determine whether there is liability for the damage in question. On the other hand, whether the claimant is awarded money damages (and, if so, how much) or, for example, restitution in kind, is a question of remedy.”

The test has recently been further discussed by the Supreme Court in Cox v Ergo Versicherung AG [2014] 2 WLR 948. The question in that case was whether the availability of damages for bereavement and loss of dependency in a claim arising out of a fatal accident in Germany was governed by German law (the applicable law pursuant to the 1995 Act) or English law (as the law of the forum). Lord Sumption, with whom three of the other four members of the Court agreed, considered that the relevant German damages rules were substantive because they determined the scope of the liability. In particular, a rule which required the victim of a tort to mitigate loss was substantive because it determined “the extent of the loss for which the defendant ought fairly, reasonably or justly to be held liable” (para 17). So too was a rule of German law which made damages available for psychological distress in certain circumstances, and made damages for bereavement as such unavailable. Lord Sumption described these rules (at para 17) as “paradigm examples of rules governing the recoverability of particular heads of loss, the avoidance of which lies within the scope of the defendant’s duty.”

Once the scope of the liability had been determined, the only question of procedure was whether English law, as the law of the forum, provided a remedy which harmonised or was “cognate” with the liability according to its nature and extent as fixed by German law (see paras 19 and 21). As an example of a case where English law did not afford a suitable remedy, Lord Sumption cited Phrantzes v Argenti [1960] 2 QB 19, where Parker LCJ declined to order a father to provide the dowry to which his daughter would have been entitled under the law of Greece because English law gave the court no power to grant relief which was consistent with the daughter’s right under Greek law. No such difficulty arose in the Cox case itself because English law provided a remedy that harmonised with the defendant’s substantive liability under German law to compensate the claimant for the loss of a financial benefit, namely the remedy of damages.

The formulation of the preliminary issue in this case begs the question of what is meant by “aggravated damages”. The term has sometimes been used to refer to a monetary award which is intended to serve a punitive or partly punitive purpose. It is common ground, however, that the reference to “aggravated damages” is to be understood as denoting damages which are purely compensatory in purpose and which are awarded for a tort as compensation for mental distress caused by the manner in which the tort has been committed, or the motive with which it was committed, or by subsequent conduct of the defendant: see Rookes v Barnard (No 1) [1964] AC 1129, 1221, per Lord Devlin; and see the report of the Law Commission on “Aggravated, Exemplary and Restitutionary Damages” (September 1997), pp.10-11, paras 1.1 and 1.4.

In order to determine what law governs the availability of aggravated damages in this sense, applying the distinction between questions of substance and procedure as drawn in the Harding and Cox cases, it is necessary to ask two questions. The first question is whether mental distress caused by the defendant’s motive or conduct in the commission of the tort is a type of injury for which the defendant can be held liable. This is a question of substance governed by the applicable law which is agreed to be the law of Iraq. The second, procedural question is whether, if such a liability exists under Iraqi law, English law as the law of the forum provides a suitable remedy which “harmonises” with the liability. The answer to this second question is plainly ‘yes’, since English law provides the remedy of damages which is a suitable form of compensation for such mental distress. The assessment of damages would have to be carried out in the same way as the court would assess aggravated damages in a case where liability has been established under English law.

By the end of the oral argument it was unclear whether there was any real difference between the parties about the correct approach. It was not in dispute that whether injury to feelings is a type of harm for which the defendant can be liable is a question of substance governed by the law of Iraq. Insofar as Mr Hermer QC sought to argue, however, that English law governs the question whether such harm can be increased by the defendant’s motive or conduct in committing the tort, I reject that contention as inconsistent with the decisions of the House of Lords in Harding and of the Supreme Court in Cox.

I would accordingly answer the question raised by the second preliminary issue as follows: