In the Media

Human rights

PUBLISHED November 27, 2014

Re Iraqi Civilians Group Litigation: Queen's Bench Division: 7 November 2014

Damages - Right to liberty and security - Lawfulness of detention - Iraqi civilians claiming damages from defendant Ministry of Defence for allegedly unlawful detention during period when British forces present in Iraq - Trial of preliminary issues - Certain preliminary issue being tried

Over 600 cases were currently pending in the High Court in which Iraqi civilians were claiming damages from the Ministry of Defence (the 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 were made on two legal bases. The first was the law of tort. It was common ground that, pursuant to partt III of the Private International Law (Miscellaneous Provisions) Act 1995, the applicable law which was to be used for determining the issues arising in these claims was the law of Iraq. The second legal basis was the Human Rights Act 1998 (the 1998 act). The claimants alleged violations of articles 3 and 5 of the European Convention on Human Rights (the Convention) incorporated in schedule 1 to the 1998 act.

The court gave directions for a trial of preliminary issues in this litigation. The purpose of the preliminary issue in the instant case was, essentially, to determine whether the reasoning of the House of Lords in Al-Jedda v Secretary of State for Defence [2008] 3 All ER 28 relation to United Nations Security Council Resolution (UNSCR) 1546 also applied to the earlier resolutions, UNSCR 1486 and UNSCR 1511.

That case had held that the claimants' rights under article 5 had been overridden by an obligation on the UK to detain him pursuant to UNSCR 1546 (and later resolutions which extended its temporal effect), that argument was based on article 103 of the UN charter.

The issues were: (i) where detention occurred following the entry into force of UNSCR 1483 on in May 2003 and/or UNSCR 1511 in October 2003: (a) was the MOD under a duty pursuant to those resolutions to detain individuals where necessary for imperative reasons of security; and (ii) if so, whether that duty overrode the defendant's obligations under article 5 of the Convention; (ii) whether the availability of aggravated damages was a matter of procedure governed by English law or a substantive matter governed by Iraqi law.

The court ruled: (1) Pursuant to UNSCR 1483 and UNSCR 1511, the MOD was under a duty (in the sense of an 'obligation' within the meaning of art 103 of the UN Charter) to detain individuals where considered necessary for imperative reasons for security. However, that duty did not override the MOD's obligations under art 5 of the Convention. Rather, the UNSCRs required the duty to be performed consistently with the UK's obligations under art 5 of the Convention (as those obligations applied in a situation of international armed conflict) (see [32] of the judgment).

R (on the application of Al-Jedda) v Secretary of State for Defence [2008] 3 All ER 28 applied; Hassan v United Kingdom (Application No. 29750/09) [2014] All ER (D) 116 (Sep) considered.

(2) Following established law, it was a question of substance governed by the law of Iraq whether mental distress caused by the MOD's conduct or motive in the commission of a tort was a type of injury for which the MOD could be held liable. If it was, assessing any damages payable as compensation for such an injury was a matter of procedure governed by English law (see [22] of the judgment).

Al Jedda v Secretary of State for Defence [2010] All ER (D) 92 (Jul) applied; Harding v Wealands [2006] 4 All ER 1 considered; Cox v Ergo Versicherung AG [2014] 2 All ER 926 considered.

Richard Hermer QC, Maria Roche and Andrew Scott (instructed by Leigh Day) for the claimants; Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor) for the MOD.

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