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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Iraqi Civilians v Ministry of Defence [2014] EWHC 3686 (QB) (07 November 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/3686.html Cite as: [2014] WLR(D) 496, [2014] EWHC 3686 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Iraqi Civilians |
Claimant |
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- and - |
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Ministry of Defence |
Defendant |
____________________
Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor) for the Defendants
Hearing date: 29 October 2014
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Crown Copyright ©
Mr Justice Leggatt :
Introduction
The remaining issues
a) the legal effect of two UN Security Council Resolutions (1483 and 1511); andb) whether the availability of aggravated damages is governed by Iraqi or English law.
Issue 1: the effect of UNSCR 1483 and 1511
"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 resolutions
"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."
"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."
"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 …"
UNSCR 1546
"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]
The Al-Jedda case: decision of the House of Lords
"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."
a) UNSCR 1546 authorised detention considered to be necessary for imperative reasons of security even where such detention was contrary to article 5 of the Convention.b) Detention carried out pursuant to that authorisation was a matter, not just of right, but of obligation under the UN Charter.
c) By reason of article 103 of the UN Charter, that obligation prevailed over the UK's obligation to secure rights under article 5 of the Convention.
The Al-Jedda case: decision of the European Court
Hassan v UK
"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."
The parties' arguments
Findings on the effect of UNSCR 1483
"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."
Findings on the effect of UNSCR 1511
Conclusion on the first issue
a) Pursuant to UNSCR 1483 and UNSCR 1511, the defendant was under a duty (in the sense of an "obligation" within the meaning of article 103 of the UN Charter) to detain individuals where considered necessary for imperative reasons for security.b) However, that duty did not override the defendants' obligations under article 5 of the Convention. Rather, the UNSCRs required the duty to be performed consistently with the UK's obligations under article 5 (as those obligations applied in a situation of international armed conflict).
Issue 2: aggravated damages
"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.
"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."
Conclusion on the second issue
a) It is a question of substance governed by the law of Iraq whether mental distress caused by the defendant's conduct or motive in the commission of a tort is a type of injury for which the defendant can be held liable.b) If it is, assessing any damages payable as compensation for such an injury is a matter of procedure governed by English law.
Note 1 In each of the test cases all the relevant events occurred before the entry into force of the Rome II Regulation on 11 January 2011. [Back]